776 F.3d 832
Fed. Cir.2015Background
- Major General promotion to be made by President with Senate consent; nomination occurred in 1996, future effective date 1997.
- Schwalier commanded at King Abdulaziz AB in Saudi Arabia; Khobar Towers bombing occurred nearby in 1996.
- Promotion delayed in 1996-1997; President later removed Schwalier from the list in 1997; Schwalier retired in 1997.
- Schwalier sought correction of military records in 2003; Corrections Board initially recommended retroactive promotion.
- DoD General Counsel advised corrections would have no legal effect; Air Force rescinded corrections in 2008.
- Schwalier filed APA/Little Tucker Act suit in 2011; district court granted summary judgment for government; appeal transferred to this court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can §1552 create appointment by operation of law when President declined to appoint? | Schwalier: §1552 makes retroactive appointment binding. | Government: final appointment requires President; no operation of law without final act. | §1552 does not permit appointment by operation of law when President withholds appointment. |
| Were corrections actions by DoD and Air Force arbitrary or capricious? | Corrections Board retroactive appointment justified; DoD later reversed under advice. | Following Dysart, no automatic promotion; corrections rescinded properly. | Actions not arbitrary or capricious; Dysart controls the outcome. |
| Is the case within APA/Little Tucker Act jurisdiction and timely? | Mix of APA and Little Tucker Act claims; timely under 6-year limit. | Complete within jurisdictional framework; transfer appropriate. | Court has jurisdiction; complaint timely under APA and Little Tucker Act. |
Key Cases Cited
- Dysart v. United States, 369 F.3d 1303 (Fed. Cir. 2004) (appointment by operation of law not allowed when President withholds appointment)
- Banks v. Garrett, 901 F.2d 1084 (Fed. Cir. 1990) (mixed Little Tucker Act and APA claims reviewed where nonfrivolous)
- Christianson v. Colt Indus. Optical, 486 U.S. 800 (S. Ct. 1988) (avoidance of jurisdictional ping-pong in transfers)
- Preminger v. Sec’y of Veterans Affairs, 517 F.3d 1299 (Fed. Cir. 2008) (APA final action review accrues at final agency action)