Lewis v. United States

United States Court of Appeals for the Federal Circuit

05-5155

EVELYN L. LEWIS,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

Eugene R. Fidell, Feldesman Tucker Leifer Fidell LLP, of Washington, DC,
argued for plaintiff-appellant. With him on the brief was Matthew S. Freedus.

Douglas K. Mickle, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for defendant-appellee. With
him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, and Bryant G. Snee, Assistant Director. Of counsel was Lieutenant Marc
Rosen, General Litigation Division, Office of the Judge Advocate General’s Corps,
United States Department of the Navy, of Washington, DC.

Appealed from: United States Court of Federal Claims

Judge Susan G. Braden
 United States Court of Appeals for the Federal Circuit

05-5155

EVELYN L. LEWIS,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

___________________________

DECIDED: August 14, 2006
___________________________

Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit
Judge.

DYK, Circuit Judge.

Dr. Evelyn Lewis (“Lewis”) appeals the decision of the Court of Federal Claims

denying relief from the Secretary of the Navy's decision to delay her promotion and

subsequently to remove her name from a military promotion list. Lewis urges that she

was promoted as a matter of law under 10 U.S.C. § 624, and also that the decision of

the Board of Correction for Naval Records (“BCNR”), sustaining the Secretary's actions

denying her promotion, was based on an incorrect interpretation of 10 U.S.C.

§ 1094(a)(1). We hold that Lewis’ claim that she was promoted as a matter of law is

barred by our decision in Dysart v. United States, 369 F.3d 1303 (Fed. Cir. 2004), and

that the BCNR's decision denying her request for a correction of her personnel record
was based on a proper understanding of 10 U.S.C. § 1094(a)(1). We therefore affirm

the decision of the Court of Federal Claims.

BACKGROUND

At all relevant times, Lewis was an active-duty Commander in the Navy Medical

Corps, and held a “restricted” Oklahoma medical license that limited her practice of

medicine to federal facilities. On April 21, 1999, the President nominated Lewis for

promotion to the rank of Captain. On June 30, 1999, the Senate confirmed her

nomination. However, she could not achieve the rank of captain without being

appointed to the position by the President. Dysart v. United States, 369 F.3d 1303,

1315 (Fed. Cir. 2004).

Prior to October 1, 1999, 10 U.S.C. § 1094 required all “health-care

professionals” in the Department of Defense ("DoD") “provid[ing] health care

independently as . . . health-care professional[s]” to carry a “current license.” 10 U.S.C.

§ 1094(a)(1) (1994). It defined “health-care professional” as “person[s] [including

physicians] providing direct patient care.” Id. at § 1094(d)(2). On October 1, 1999, a

new sentence was added to section 1094(a)(1), which provided that “[i]n the case of a

physician, the physician may not provide health care as a physician under this chapter

unless the current license is an unrestricted license . . . .” 10 U.S.C. § 1094(a)(1)

(2000).

In December 1999, the Navy Bureau of Medicine and Surgery directed Lewis to

show cause as to whether she should be retained in the Navy, because she did not

have an unrestricted medical license. On May 2, 2000, a Navy Board of Inquiry (BOI)

conducted an investigation and found that separation was not warranted because Lewis

05-5155 2
“ha[d] not committed substandard performance of duty as evidenced by a failure to

maintain the required professional licensure to practice medicine.” J.A. at 147.

Nonetheless, on June 27, 2000, the Chief of Naval Personnel determined that Lewis

“may not be professionally qualified for permanent promotion” because she lacked “a

valid state medical license recognized by the Navy,” and notified Lewis that her

appointment would be delayed pending a final decision by the Secretary of the Navy.

J.A. at 149.

On September 26, 2000, Lewis filed a complaint in the United States District

Court for the District of Columbia asserting that the action delaying her promotion was

arbitrary and capricious. In an August 15, 2001, decision the court granted the

government’s motion to dismiss, holding the claim was non-justiciable and Lewis had

failed to exhaust administrative remedies before the BCNR. See Lewis v. Rumsfeld,

154 F. Supp. 2d 56, 57 (D.D.C. 2001). Lewis appealed to the United States Court of

Appeals for the District of Columbia Circuit on August 21, 2001.

Lewis’ situation continued to evolve while her case was pending before the

District of Columbia Circuit.

Section 624(a) of title 10, a provision of the Defense Officer Personnel

Management Act (“DOPMA”), provides that “[e]xcept as provided in subsection (d),

officers on a promotion list for a competitive category shall be promoted to the next

higher grade when additional officers in that grade and competitive category are

needed.” 10 U.S.C. § 624(a)(2) (2000). Section 624(d) provides that “[a]n officer's

appointment may not be delayed . . . more than 18 months after the date on which such

officer would otherwise have been appointed . . . .” 10 U.S.C. § 624(d)(4) (2000).

05-5155 3
Under this provision, the last date to which Lewis’ appointment could be delayed was

February 1, 2002. By this date, Lewis had neither been removed from the promotion list

nor appointed.

On March 5, 2002, Lewis applied to the BCNR, seeking a determination that she

had been promoted to the rank of Captain by operation of law.1 On May 10, 2002, after

the expiration of the 18-month period, the Secretary of the Navy finally removed Lewis’

name from the promotion list. The BCNR denied Lewis’ application for relief on

February 10, 2003, holding that under Secretary of the Navy Instruction

("SECNAVINST") 1120.12A and the applicable DoD policy, “the Navy properly

considered [Lewis] to be professionally unqualified for promotion without an unrestricted

license . . . .” J.A. at 254. On March 31, 2003, Lewis requested voluntary retirement

from active duty, and the Secretary of the Navy granted her request effective January 1,

2004.

On April 30, 2003, the District of Columbia Circuit issued a decision remanding to

the district court. In a per curiam order, the court advised Lewis to seek leave of the

district court to amend her complaint to include a damages claim, and to transfer the

case to the Court of Federal Claims. See Lewis v. Rumsfeld, No. 01-5296, 2003 WL

21018861 (D.C. Cir. Apr. 30, 2003). Lewis did so, and on June 2, 2003, the district

court granted her motion. The case was transferred to the Court of Federal Claims.

1
Section 1552 of title 10 gives the military secretaries power to correct
military records using civilian boards. It provides that “[t]he Secretary of a military
department may correct any military record of the Secretary’s department when the
Secretary considers it necessary to correct an error or remove an injustice.” 10 U.S.C.
§ 1552(a)(2) (2000).

05-5155 4
 In the Court of Federal Claims, Lewis alleged that she was promoted to the rank

of Captain as a matter of law by operation of section 624(d). She also contended that

she was denied promotion based upon an erroneous interpretation of section 1094.

She sought pay and allowances of a Captain from August 1, 2000, to December 31,

2003, and the retired pay of a Captain.

The government moved to dismiss, or in the alternative, for judgment on the

administrative record. Lewis v. United States, 67 Fed. Cl. 158, 163 (2005). The Court

of Federal Claims (Judge Susan G. Braden) held that it had jurisdiction over Lewis’

claim under the Tucker Act, 28 U.S.C. § 1491(a)(1) (2000), and the Military Pay Act,

37 U.S.C. § 204 (2000). Id. at 160-61. While recognizing that “the merits of a

promotion determination are non-justiciable,” the court held that Lewis’ claim was

justiciable because “the court can intervene . . . to ensure that the [promotion] decision

was made in a proper procedural manner.” Id. at 160. However, the court held that

under our decision in Dysart v. United States, 369 F.3d at 1311-14, the President has

complete discretion whether to appoint military officers. Lewis, 67 Fed. Cl. at 163.

Accordingly, the court granted the government’s motion for judgment on the

administrative record. Id.

The appellant timely appealed, and we have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(3).

DISCUSSION

We review legal determinations of the Court of Federal Claims, such as a

judgment on the administrative record, without deference. Haselrig v. United States,

333 F.3d 1354, 1355 (Fed. Cir. 2003).

05-5155 5
 The Tucker Act, 28 U.S.C. § 1491, authorizes actions for monetary relief against

the United States to be brought in the Court of Federal Claims, but does not itself

provide a substantive cause of action absent a money-mandating statute. Martinez v.

United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc). The relevant money-

mandating statute in this case is the Military Pay Act, 37 U.S.C. § 204, which “provides

for suit in the Court of Federal Claims when the military, in violation of the Constitution,

a statute, or a regulation, has denied military pay.” Dysart, 369 F.3d at 1315; see also,

e.g., Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997).2

Here Lewis seeks military pay that was denied as a result of the Secretary’s

decision to delay Lewis’ promotion and to remove Lewis’ name from the promotion list.3

While resort to a correction board is not mandatory, Martinez, 333 F.3d at 1305,

where, as here, a service member has elected to pursue relief before a corrections

board, we have reviewed the board’s decision to determine whether it is arbitrary,

capricious, unsupported by substantial evidence, or contrary to law. Id. at 1314; see

also, e.g., Chappell v. Wallace, 462 U.S. 296, 303 (1983) (“Board decisions are subject

to judicial review and can be set aside if they are arbitrary, capricious or not based on

substantial evidence.”); Porter v. United States, 163 F.3d 1304, 1312 (Fed. Cir. 1998);

Armstrong v. United States, 205 Ct. Cl. 754, 761 (1974).

2
Retirement pay claims are brought under other money-mandating
statutes. See, e.g., 10 U.S.C. §§ 6323, 6333, 1370; see also Sawyer v. United States,
930 F.2d 1577 (Fed. Cir. 1991) (holding that the disability retirement pay statute,
10 U.S.C. § 1201, is money-mandating).
3
The corrections board statute, 10 U.S.C. § 1552, is not a money-
mandating statute that provides the basis for a Tucker Act suit. Martinez, 333 F.3d at
1315.

05-5155 6
 I

We have confronted decisions by the military concerning officer retention and

promotion in a variety of contexts. In general, we have said that the questions of the

fitness of an officer to serve on active duty, and in what capacity the officer should

serve, are not for the courts to decide. Fisher v. United States, 402 F.3d 1167, 1180-81

(Fed. Cir. 2005) (en banc) (noting that the question of “who should be allowed to serve

on active duty, and in what capacity” is generally nonjusticiable (citing Adkins v. United

States, 68 F.3d 1317, 1323 (Fed. Cir. 1995))); see also Orloff v. Willoughby, 345 U.S.

83, 91 (1953); Dysart, 369 F.3d at 1315; Adkins, 68 F.3d at 1324. In addition, the

Constitution expressly provides that only the President has the authority to appoint an

officer, and thus to take the final step in the promotion process. As such, in Dysart v.

United States, we made clear that “the President’s decision not to appoint is a

discretionary act that cannot be reviewed by a court,” 369 F.3d at 1317, and that

Congress cannot provide for automatic appointments. Id. (“Congress does not have the

authority to require the President to exercise his appointment power . . . .”).

However, the Constitution, statutes, and regulations can appropriately regulate

the categories of persons who may be appointed to particular positions and the process

by which those appointments are made. For example, Congress can restrain the

President’s authority to appoint particular classes of persons to officer positions or bar

appointment unless particular procedures are followed. See, e.g., 10 U.S.C. §§ 611-41

(2000); see also U.S. Const. art. II, § 2, cl. 2; Dysart, 369 F.3d at 1306-07. If an

individual has a “clear cut legal entitlement” to a position, but subordinate officials in the

government misinterpret the Constitution, statutes, or regulations, and improperly

05-5155 7
decline to recommend that individual for nomination or appointment, redress may be

available in the courts. Smith v. Sec’y of the Army, 384 F.3d 1288, 1294-95 (Fed. Cir.

2004) (stating that an action for money arises under the Military Pay Act when an

individual has a “clear-cut legal entitlement” to a promotion). Thus, the courts can

review promotion decisions for violations the Constitution,4 statutes,5 or regulations.6

4
See generally, e.g., Chappel, 462 U.S. at 303 (recognizing that enlisted
men challenging denial of promotions based on unconstitutional discrimination can seek
relief from the board under the correction board statute, and that “Board decisions are
subject to judicial review and can be set aside if they are arbitrary, capricious or not
based on substantial evidence.”); Berkley v. United States, 287 F.3d 1076, 1090-91
(Fed. Cir. 2002) (addressing claim that reduction-in-force violated officers’ Fifth
Amendment right to equal protection by taking into account racial and gender
characteristics in selecting them for involuntary separation).
5
See, e.g., Richey v. United States, 322 F.3d 1317, 1325-26 (Fed. Cir.
2003) (where discharge resulted from allegedly improper non-promotion decisions,
court reviewed the military’s promotion procedures for compliance with 10 U.S.C.
§ 628); Porter, 163 F.3d at 1311-12 (same); Sanders v. United States, 594 F.2d 804,
814, 817 (Ct. Cl. 1979) (where discharge resulted from improperly denied promotions,
court concluded that the military had “violated both the spirit and letter of the statute
[10 U.S.C. § 3442(c), 8442(c) (1976) (repealed 1980)] and regulations.”); Doyle v.
United States, 599 F.2d 984, 996 (Ct. Cl. 1979) (holding that promotion decision
violated statutory requirement governing composition of selection board); see also
Roth v. United States, 378 F.3d 1371, 1385 (Fed. Cir. 2004) (noting that “the test[s] or
standards against which this court measures the military’s conduct [such as failure to
promote] are inherent: they are the applicable statutes and regulations” (quoting Adkins,
68 F.3d at 1323)).
6
See, e.g., Roth, 378 F.3d at 1386-87, 1393 (holding promotion decision
was unlawful because “Officer Effectiveness Reports” were adversely affected by
violation of Air Force Regulation 36-10; requiring Air Force to reevaluate promotion
decision); Evensen v. United States, 654 F.2d 68 (Ct. Cl. 1981) (holding that promotion
decision violated regulatory requirement governing composition of selection board);
Sanders, 594 F.2d at 817-18 (military’s refusal to consider officer’s eligibility for
promotion based on properly corrected record violated a regulation requiring correction
of an officer’s record upon a showing of “probable material error or injustice.”).

05-5155 8
 In such an action, the court cannot, of course, order the President or his delegate

to make the appointment. See Dysart, 369 F.3d at 1317 (“[T]he President’s decision . . .

whether or not to exercise his appointment power is discretionary, and . . . the President

cannot be compelled to appoint military officers.”); Law v. United States, 11 F.3d 1061,

1065 (Fed. Cir. 1993) (stating that the courts are “without authority to grant [ ]

promotion[s]”).7 The question becomes whether the officer by delegation is exercising

Presidential discretion in declining to grant the appointment or whether the official is

improperly construing the Constitution, a statute, or regulation directing appointments

(in which case the action is reviewable).

The award of back pay for an appointment that was denied by a subordinate

official, as a result of an improper construction of the Constitution, a statute, or a

regulation, is permissible because “[i]t is . . . assumed that the constitutionally-mandated

steps in the appointment process-nomination, confirmation, and appointment-would be

followed absent improper action by subordinate officials, and that the rare exercise of

Presidential (or Senate) discretion not to make the appointment creates no Article III bar

to the action in the Court of Federal Claims,” for back pay. Dysart, 369 F.3d at 1315;

7
See also Randall v. United States, 95 F.3d 339, 348 (4th Cir. 1996) (“The
district court would have no authority to order the Secretary of the Army to promote
Plaintiff to Lieutenant Colonel.”); Adkins, 68 F.3d at 1324 (an officer’s “prayer that the
Court of Federal Claims direct the Secretary to promote him to the rank of colonel
plainly was a request for impermissible ‘interfer[ence] with legitimate Army matters.’”
(quoting Orloff, 345 U.S. at 94)); Yee v. United States, 512 F.2d 1383, 1388 (Ct. Cl.
1975) (denying a request for a court-ordered promotion, observing that “[c]ourts
generally are not in the ‘promotion business’”).

05-5155 9
see Glidden Co. v. Zdanok, 370 U.S. 530, 568-71 (1962); see also Chicago & S. Air

Lines v. Waterman S.S. Corp., 333 U.S. 103, 113-14 (1948).8

A

Against this backdrop, we can quickly dispose of Lewis’ contention that she was

promoted by operation of law pursuant to 10 U.S.C. § 624(a)(2) on the theory that the

language of 624(d) mandates automatic appointment when the 18-month statutory

delay period expires. We addressed and rejected the same argument, with respect to

the same statute, in Dysart. We held that “the language of [section 624] does not

provide for automatic appointment . . . .” 369 F.3d at 1313. We further held that the

statute could not constitutionally provide for automatic appointment because “military

officers must be appointed pursuant to the constitutional process, which requires

appointments at the discretion of the President, not automatic appointments pursuant to

statute.” Id. at 1313, 1315.

While Lewis contends that Dysart was wrongly decided, it is, of course, binding

on this panel. Further, Lewis’ claim is not distinguishable from Dysart. It is of no

consequence that the President himself removed Dysart’s name from the list more than

six months after the deadline referred to in 624(d)(4), whereas the Secretary removed

Lewis’ name acting as a delegate of the President.9 The premise of Lewis’ argument is

8
See also Law, 11 F.3d at 1065 (holding that the court has the authority to
recognize a promotion by awarding back pay); cf. Wood v. United States, 107 U.S. 414,
417 (1883) (holding that Congress may not change an officer’s grade, which requires
appointment, but may change an officer’s pay and direct that the officer be paid as
though he had been appointed to a higher grade).
9
Just as the authority to appoint military officers can be delegated, see,
e.g., Orloff, 345 US. at 90; United States v. Moore, 95 U.S. 760, 762 (1877); Dysart

05-5155 10
the same as Dysart’s--that section 624 provides for automatic appointment. We

rejected this premise in Dysart, and decline to revisit it now.

II

Lewis also claims that the BCNR erred in sustaining the Secretary's decision to

deny her promotion. She contends that an incorrect interpretation of 10 U.S.C. § 1094

resulted in the denial of her promotion.10 The DoD policy implemented by the Secretary

is reflected in a policy memorandum that was issued by the Assistant Secretary of

Defense for Health Administration (“ASD(HA)”). The memorandum provides:

Any physician license in a licensure category that restricts the physician to
practice in a federal facility or within some other confined limits does not
comply with the requirement [of § 1094(a)(1)] for an “unrestricted license.”
Unless waived [under § 1094(a)(2)], all physicians must have at least one
current, unrestricted license . . . . Effective October 1, 1999, a physician
without a full-scope license may not provide health care as a physician,
unless a waiver is granted under this policy.

J.A. at 140. In a later memorandum, the ASD(HA) explained that the licensing

requirement applies to “[a]ll physicians in the DoD,” including “health care personnel

whose duties are entirely administrative in nature and do not involve the provision of

patient care.” J.A. at 142. Lewis contends that the DoD policy of requiring all

physicians to carry an unrestricted license is inconsistent with section 1094.

1312, so too can the authority to decline to appoint officers. D’Arco v. United States,
441 F.2d 1173, 1175 (Ct. Cl. 1971); see also Dysart, 369 F.3d at 1316.
10
In addition to arguing that section 1094 does not bar her promotion, Lewis
urges that the BCNR’s reliance on SECNAVINST 1120.12A was erroneous because
SECNAVINST 1120.12A provides no support for the licensing requirement. The
question whether the BCNR properly relied on SECNAVINST 1120.12A is irrelevant,
because the BCNR’s decision was fully supported by section 1094(a) itself.

05-5155 11
 Prior to October 1, 1999, section 1094 required all persons “provid[ing] health

care independently as . . . health-care professional[s]” to possess a “current license.”

Section 1094(e)(2) provided that “[t]he term ‘health-care professional’ means a

physician, dentist, clinical psychologist, or nurse and any other person providing direct

patient care as may be designated by the Secretary of Defense in regulations.”

10 U.S.C. § 1094(e)(2) (emphasis added).

Before 1999 the statute did not include any special requirement applicable to

physicians. 10 U.S.C. § 1094(a)(1) (1994). In October 1999, a second sentence was

added to section 1094(a)(1) addressed specifically to physicians:

In the case of a physician, the physician may not provide health care as a
physician under this chapter unless the current license is an unrestricted
license that is not subject to limitation on the scope of practice ordinarily
granted to other physicians for a similar specialty by the jurisdiction that
granted the license.

10 U.S.C. § 1094(a)(1) (2000), as amended by Pub. L. 105-261, 112 Stat. 2073.

Lewis points out that section 1094 only requires any “physician . . . provid[ing]

health care as a physician” to carry an unrestricted license. In Lewis’ view, a physician

only provides health care as a physician if he or she provides direct patient care. Lewis

bases this argument on the fact that a physician who does not provide direct patient

care is not a “health care professional” within the meaning of the first sentence of

1094(a)(1) of the statute. However, it is irrelevant that such a physician providing

indirect care may not meet the statutory definition of “health care professional” in the

pre-1999 version of the statute. The question here is what is meant by the second

sentence, and the operative terms do not require direct care. The definition of physician

is “a person who is legally qualified to practice medicine,” and the practice of “medicine”

05-5155 12
is the provision of health care. Random House Webster’s Unabridged Dictionary at

1462 (2d ed. 1998).11 “Healthcare” is defined as “the field concerned with the

maintenance or restoration of the health of the body or mind.” Id. at 882. Based on the

language of the statute, a physician who provides indirect care “provide[s] health care

as a physician” and is subject to the unrestricted licensing requirement. Lewis does not

contend that her duties were unrelated to the provision of health care. Indeed, all of her

assignments appear to have involved the provision of health care.12

This broader definition is confirmed by the history and structure of the statute.

We must assume that the statute was amended in 1999 for a purpose. The evident

purpose of the amendment was to impose special requirements for physicians not

applicable to other health care professionals. The fact that “health care professionals”

generally were not required to have a license unless they were providing “direct patient

care” says nothing about the statute’s special requirements for physicians. Indeed, the

omission of the “direct patient care” language from the special provision applicable to

physicians added by the 1999 amendment strongly suggests in and of itself that the

license requirement for physicians went beyond direct patient care.

11
Id. at 1194 (defining “medicine” as “the art or science of restoring or
preserving health or due physical condition, as by means of drugs, surgical operations
or appliances, or manipulations”).
12
For example, she served in various positions at the Uniformed Services
University of the Health Sciences in Bethesda, Maryland, including Acting Vice
President in the Office of Recruitment and Minority Affairs; Director, Family Practice
Clerkship; Director, University Health Center; Vice Chair, Department of Family
Medicine.

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 Our interpretation is reinforced by the policy memoranda issued by the Assistant

Secretary of Defense for Health Administration to which we owe at least Skidmore

deference. See Skidmore v. Swift & Co., 323 U.S. 134 (1944). The ASD(HA) is “the

principal staff assistant and advisor to the . . . Secretary and Deputy Secretary of

Defense for all DoD health policies, programs, and activities” and is tasked with

“effectively execut[ing] the Department's medical mission.” 32 C.F.R. § 367.3 (2005).

The ASD(HA)’s memorandum of January 9, 1999, set forth the DoD’s view that section

1094(a)(1) requires that “all physicians must have at least one currecnt unrestricted

license . . . .” J.A. at 140. The later memorandum acknowledged that “[p]hysicians in

purely administrative positions are not unusual,” but stated that “[t]he vast majority of

these positions are predicated on the knowledge base and credentials unique to

physicians,” and thus reaffirmed that the licensing requirement applies to these

physicians as well. J.A. at 142.

We therefore conclude that Lewis was not denied promotion based on an

incorrect interpretation of section 1094.

CONCLUSION

For the foregoing reasons, we affirm the decision of the Court of Federal Claims.

AFFIRMED

COSTS

No costs.

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