JOSIAH E. NICELY, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee
2020-1856
United States Court of Appeals for the Federal Circuit
January 20, 2022
Appeal from the United States Court of Federal Claims in No. 1:16-cv-01264-DAT, Judge David A. Tapp.
CHARLES W. GITTINS, Lake Frederick, VA, argued for plaintiff-appellant.
JOSEPH ALAN PIXLEY, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by BRIAN M. BOYNTON, ROBERT EDWARD KIRSCHMAN, JR., DOUGLAS K. MICKLE.
Before MOORE, Chief Judge, PROST and O‘MALLEY, Circuit Judges.
Opinion for the court filed PER CURIAM.
Circuit Judge O‘MALLEY concurs in the result.
Josiah Nicely appeals a decision of the United States Court of Federal Claims (“Claims Court“) that: (1) dismissed Count II of Nicely‘s complaint, which the Claims Court concluded was predicated on an alleged violation of the Military Whistleblower Protection Act (“MWPA“),
On appeal, Nicely challenges the Claims Court‘s dismissal of Count II and its determination that the BCNR‘s long-standing practice of permitting retired members of the military to serve as members of the Board does not violate
I. BACKGROUND
Nicely served in active duty in the United States Marine Corps (“USMC“) for more than ten years. Nicely, 147 Fed. Cl. at 731. After an incident in January 2010, where Nicely was arrested and charged with driving under the influence, Nicely went through a series of disciplinary proceedings and was ultimately involuntarily discharged in October 7, 2011.
Three things of note occurred between Nicely‘s arrest and discharge. First, the state court dismissed the driving-under-the-influence charge, and Nicely was only convicted of misdemeanors that did not involve driving while impaired. Second, during the course of non-judicial disciplinary proceedings, among other statements regarding the circumstances of his arrest, Nicely wrote a letter to his Commanding
Nicely petitioned the BCNR to correct his military record, alleging various errors in his separation. Specifically, Nicely requested that the BCNR correct his military record by: (1) directing removal of the January 2010 fitness report relating to his arrest; (2) setting aside his administrative separation from the USMC for misconduct, as well as the Board of Inquiry (“BOI“) decision that led to that separation; (3) reinstating Nicely to active duty with back pay; and (4) ordering any additional relief. Nicely, 147 Fed. Cl. at 736. In August 2015, the BCNR found Nicely‘s arguments and evidence insufficient to establish the existence of material error or injustice and therefore denied his petition for relief. Id.
Nicely subsequently filed suit in the Claims Court, challenging the BCNR‘s decision. Nicely purported to ground his claims on the Military Pay Act (“MPA“). As relevant to this appeal, Nicely alleged in Count II that his discharge must be set aside because it was predicated, in part, on confidential statements he had made to the IG during the investigation of his MWPA claim. He separately asserted that some members of the BCNR were not statutorily authorized to serve. The court remanded the case to the BCNR twice for further consideration.
First, the court ordered the BCNR to explain to what extent, if any, Nicely‘s statements to the IG factored into his discharge recommendation. The BCNR responded upon remand that Nicely‘s disclosures to the IG were irrelevant to its recommendation because Nicely had independently admitted to his supervising officer in writing that he had, in fact, been driving while impaired in January 2010.
Second, in December 2018, the court remanded the matter for the BCNR to consider Nicely‘s claim that certain retired military members—specifically retired military officers—are precluded from sitting on military correction boards under
In the March 27, 2020 decision at issue on appeal, the Claims Court granted the government‘s motion to dismiss Count II of the complaint for lack of subject matter jurisdiction. Id. at 738. Citing this court‘s decisions in Bias v. United States, 722 F. App‘x 1009, 1013 (Fed. Cir. 2018), and Rana v. United States, 664 F. App‘x 943, 947 (Fed. Cir. 2016), the court held that it “lacks jurisdiction to resolve MWPA
Nicely timely appealed. We have jurisdiction under
II. DISCUSSION
On appeal, Nicely argues that the Claims Court erred when it: (1) dismissed Count II of his complaint for lack of subject matter jurisdiction and (2) agreed with the BCNR that retired military officers qualify as “civilians” within the meaning of
A. Subject Matter Jurisdiction
We dispense with the first issue quickly. We review a Claims Court decision dismissing for lack of subject matter jurisdiction de novo. Diaz v. United States, 853 F.3d 1355, 1357 (Fed. Cir. 2017). Nicely bears the burden of establishing jurisdiction by a preponderance of the evidence. Id. Although Nicely denies that Count II of his complaint sought to state a cause of action under the MWPA and submits that his claims were entirely based on the MPA, we agree with the Claims Court that this argument is “inexplicabl[e]” given that he invokes the MWPA no less than three times in Count II. Nicely, 147 Fed. Cl. at 738 n.7.
We agree with the Claims Court that we must look to the substance of the allegations in a complaint when assessing the scope of the Claims Court‘s (and our) jurisdiction over those claims, not the label a claimant places on them. The entire predicate for Count II of Nicely‘s complaint is that the BCNR relied upon certain confidential disclosures to the IG when making its recommendation for discharge to the Secretary, which the MWPA prohibits. There is no way to read his claim other than one directly asserting a violation of the MWPA. The MWPA establishes a detailed, comprehensive scheme for addressing whistleblower issues within the military.
B. Interpretation of 10 U.S.C. § 1552(a)(1)
As to the second issue, we review a Claims Court decision granting or denying a motion for judgment on the administrative record without deference—meaning that we apply the same standard as the trial court. Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005). We “will not disturb the decision of the corrections board unless it is arbitrary, capricious, contrary to law, or unsupported by substantial evidence.” Id.
Resolution of Nicely‘s second issue on appeal requires us to consider what appears to be an issue of first impression: whether permitting retired military officers to sit on the BCNR violates
1. Statutory Text
When interpreting a statute, we “begin with the language employed by Congress.” Engine Mfrs. Ass‘n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004) (internal quotation marks and citation omitted). Section 1552, provides in relevant part:
The 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. Except as provided in paragraph (2), such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department.
The BCNR is under the direction and supervision of the Assistant Secretary of the Navy (Manpower & Reserve Affairs) and is part of the organization that is the Navy. Nicely does not dispute that the members of his BCNR panel were from the “executive part” of that military department. Instead, Nicely‘s argument on appeal is that the BCNR panel that considered his claims was not composed solely of “civilians” because, in Nicely‘s view, a “retired military officer” is a “current member of the military service” and therefore cannot be a “civilian” as that term is used in § 1552(a)(1). See Appellant‘s Br. 5.
Congress did not explicitly define “civilians” in the text of § 1552(a)(1). That a term is not defined in a statute does not make it indecipherable, however. It is well established that “the legislature‘s failure to define commonly-used terms does not create ambiguity, because the words in a statute ‘are deemed to have their ordinarily
In the absence of an express definition, we first give undefined terms their ordinary meaning. Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995) (“When terms used in a statute are undefined, we give them their ordinary meaning.“); Richards v. United States, 369 U.S. 1, 9 (1962) (“[W]e must, of course, start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used.“). This “ordinary meaning may be informed through the use of dictionaries.” Gazelle v. Shulkin, 868 F.3d 1006, 1011 (Fed. Cir. 2017) (citing United States v. Rodgers, 466 U.S. 475, 479 (1984)).
Modern dictionaries define the term “civilian” as a person who is not on active duty in the armed services. See Webster‘s New World College Dictionary (4th ed. 2010) (defining a civilian as “any person not an active member of the armed forces“); Oxford English Dictionary (2d ed. 1989) (“A person who is not professionally employed in the armed forces; a non-military person“); Black‘s Law Dictionary (11th ed. 2019) (“A person not serving in the military.“). As the Claims Court explained, these definitions differentiate between persons “on active duty in the armed services” and those who are not. Nicely, 147 Fed. Cl. at 741. This differentiation is consistent with how the terms “member[s] of the armed forces” and “active duty” are used elsewhere in Title 10. Id. For example, the phrase “member[s] of the armed forces” is defined in Title 10 as “(A) a member of the armed forces who is serving active duty, (B) a member of the National Guard who is serving on full-time National Guard duty, or (C) a member of a Reserve component while performing inactive-duty training.”
The broader statutory context confirms this definition. There is a “presumption that a given term is used to mean the same thing throughout a statute.” Brown v. Gardner, 513 U.S. 115, 118 (1994). Elsewhere in Title 10, Congress expressed its understanding that former and retired members of the military are “civilians” by creating post-retirement waiting periods before such personnel could be appointed to certain high-level civilian positions. For example,
The express statutory exclusion of retired military officers from appointment to certain roles within the civil service for a specified period of time after active service ends implies that those individuals would have been eligible for service as civilians immediately upon retirement but for the statutorily-imposed “cooling-off” period. If Congress had wanted to include a similar “cooling-off” period for service on correction boards, it could have done so expressly. The absence of such a period in
2. Relevant Case Law
As he did before the Claims Court, Nicely cites Weiss v. United States, 408 F.2d 416, 421 (Ct. Cl. 1969), and Proper v. United States, 139 Ct. Cl. 511, 526 (1957), for the proposition that retired military members are not civilians within the meaning of
At the outset, neither Proper nor Weiss addressed whether retired service members can serve on correction boards. Instead, both cases were directed to the question of whether the Secretary of a military branch could overrule the substantiated findings of the correction board on the advice of others. See Proper, 139 Ct. Cl. at 526 (explaining that the Secretary of the Army could not disregard the findings of the correction board in favor of the contrary advice of a retired military officer because corrections were to be decided by the Secretary after considering the BCNR‘S recommendation, not the recommendations of others); Weiss, 408 F.2d at 421 (finding that the Secretary‘s rejection of the BCNR‘s recommendation was unjustified, where the Board‘s recommendation was supported by the record and the Secretary instead chose to follow the advice of an active duty naval officer).
We confirmed as much in Strickland v. United States, 423 F.3d 1335 (Fed. Cir. 2005), where we addressed the scope of
More recently, in Strand v. United States, 951 F.3d 1347 (Fed. Cir. 2020), we again clarified that Proper and Weiss “have no application without military officer involvement.” Strand, 951 F.3d at 1353 (internal quotation marks and citation omitted). In Strand, the BCNR issued a decision that recommended granting the appellant‘s request for correction. Id. at 1349. The Secretary of the Navy twice rejected that recommendation. Id. Later, the BCNR‘s then-Executive Director, Robert O‘Neill, who was a “retired Navy [Judge Advocate General]” attorney, wrote a memorandum requesting that the Secretary of the Navy review the 2014 BCNR decision, but “without advocating a particular outcome of that review.” Id. at 1352–53. After finding that Proper and Weiss were “inapplicable” to Strand‘s case because the individuals giving advice to the Secretary in Proper and Weiss were actual “uniformed military officers“—we explained:
Although BCNR Executive Director O‘Neill is a retired military officer, his memo requesting Secretarial review does not constitute undue officer influence. Mr. O‘Neill was a civilian employee of the Navy at the time he wrote the memo, and his memo merely states that the Secretary “should review this case for decision,” without advocating a particular outcome of that review.
Id. at 1353 (emphases added) (citations omitted). We ultimately held that the “Secretary acted within his discretion in rejecting the recommendation of the Board.” Id. at 1357.
Although Strand did not address the precise issue presented in this appeal—whether retired military members can serve on military correction boards—our analysis in that case supports our interpretation here. In particular, our indication that O‘Neill, who was a retired military officer, was a “civilian employee” of the Navy, rather than a “uniformed military officer,” supports the notion that a retired military officer serving on the BCNR qualifies as a civilian. See id. at 1353.
Finally, Nicely cites several cases that refer to retired military officers as members of the military. See Tyler, 105 U.S. at 245 (“It is impossible to hold that men who are by statute declared to be a part of the army, who may wear its uniform, whose names shall be borne upon its register, who may be assigned by their superior officers to specified duties by detail as other officers are, . . . are still not in the military service“); United States ex rel. Pasela v. Fenno, 167 F.2d 593, 595 (2d Cir. 1948) (finding that Fleet Reservists qualify as members of the “naval forces” as they “remain subject to call to active duty“); Hostinsky v. United States, 292 F.2d 508, 509–10 (Ct. Cl. 1961) (noting that a retired officer of the Navy, receiving longevity retired pay, could not hold another office in the civil service entitling him to compensation); Lemly v. United States, 109 Ct. Cl. 760, 763 (1948) (stating that an officer retired from active duty, who is receiving retirement pay, “is still subject to call to active duty” and “is still an officer in the service of his country“); McCarty v. McCarty, 453 U.S. 210, 211 (1981) (concluding that, upon dissolution of marriage, “federal law precludes a state court from dividing military nondisability retired pay
As the Claims Court correctly noted, however, these cases “provide no support for [Nicely‘s] position as they address narrow issues of military retired pay, the now-repealed prohibition on dual office holding, and court-martial jurisdiction of former military members.” Nicely, 147 Fed. Cl. at 741 n.12. The fact that one can be subject to certain restrictions based on his or her former military and current pay status does not answer the question whether that retiree is a civilian under
the proposition that a properly appointed member of the civil service from the executive part of the military organization is prohibited from serving on a correction board merely because they are also retired military.
Accordingly, we hold that the term “civilians” in
III. CONCLUSION
We have considered Nicely‘s remaining arguments and find them unpersuasive. Accordingly, we affirm the decision of the Claims Court.
AFFIRMED
COSTS
No costs.