Cameron v. United States , 550 F. App'x 867 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DANIEL E. CAMERON,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5010
______________________
Appeal from the United States Court of Federal
Claims in No. 10-CV-0696, Judge Nancy B. Firestone.
______________________
Decided: November 18, 2013
______________________
CHESTER H. MORGAN, II, Morgan Legal Offices P.C., of
Colorado Springs, Colorado, argued for plaintiff-appellant.
MELISSA M. DEVINE, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for defendant-
appellee. With her on the brief were STUART F. DELERY,
Principal Deputy Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and STEVEN J. GILLINGHAM, Assistant
Director. Of counsel was DOUGLAS K. MICKLE, Trial
Attorney.
2 DANIEL CAMERON v. US
______________________
Before RADER, Chief Judge, LOURIE, and O’MALLEY,
Circuit Judges.
RADER, Chief Judge.
The Court of Federal Claims found that Col. Daniel
Cameron, a retired officer of the Oregon National Guard,
was not improperly denied consideration by a retention
board before he was discharged from active duty. Because
the army regulations in effect at the time entitled Col.
Cameron to review by a retention board, this court re-
verses and remands.
I.
Col. Cameron enlisted in the Army in 1981, accepted a
commission as a U.S. Army Reserve Corps officer in 1983,
and entered the Active Guard Reserve (AGR) under Title
32 for the Oregon National Guard in 1998. In 2003, he
received orders under 10 U.S.C. § 12301(d) for a “one time
occasional tour” in Colorado. J.A. 180–81. The orders
listed his “active duty commitment” as October 1, 2003
through February 28, 2006. J.A. 180–81. His orders
further indicated that he was “continued on active duty
with [the soldier’s] consent and the consent of the Gover-
nor of the State of OREGON” and “[t]his order constitutes
active duty; the soldier is transferring from Title 32 AGR,
to Title 10 AGR.” J.A. 180–81.
On May 31, 2005, Col. Cameron requested a tour ex-
tension through August 31, 2007; this request was en-
dorsed by three of his superiors. J.A. 154, 168, 191–98.
Then, one month before the end of that tour, Col. Camer-
on reached twenty years of active service and was, there-
fore, subject to automatic retirement. Because the
requests for tour extension were unsuccessful, Col. Cam-
eron retired as a colonel on March 1, 2006 after 20 years,
one month and one day of service. J.A. 39.
DANIEL CAMERON v. US 3
Prior to 2003, AGR officers who wished to continue
serving beyond twenty years of active federal service were
considered for retention on a case-by-case basis. Then, in
a memo dated February 11, 2003, the Assistant Secretary
of the Army (Manpower and Reserve Affairs) directed the
Chiefs of the National Guard Bureau (NGB) and the
Army Reserve to transition to a retention board process
when considering retention of AGR officers beyond 20
years. J.A. 57–58. According to the Assistant Secretary’s
memorandum, the annual continuation boards “would
provide for consistent application, fairness, and equity” in
the retention process. J.A. 57–58. The February 2003
memorandum directed the states and territories to con-
duct Active Federal Service Tour Continuation Boards
(AFSTCBs) “to consider eligible Title 32 AGR officers” for
extension beyond 20 years of service. J.A. 73. It also
directed the NGB to conduct an AFSTCB “for Title 10
AGR officers.” J.A. 73. Officers under both Title 32 and
Title 10 received review if they fell “within the zone of
consideration.” The zone of consideration included offic-
ers who achieved 19 or more years of service between July
2004 and September 2005. J.A. 73.
The Department of the Army amended Army Regula-
tion (AR) 135–18 to implement the retention board pro-
cess described in the Assistant Secretary’s February 2003
memo. A.R. 135–18 ¶ 4–7 (2003). The new regulation
went into effect on December 10, 2003 and both parties
rely on the 2003 version. Id.
Section 4–7 of the AR 135–18 addresses extensions of
active duty (AD) or full-time National Guard Duty
(FTNGD) beyond 20 years of active service (AS). It pro-
vides that AGR officers “will be released from AD (serving
under 10 U.S.C.) or FTNGD (serving under 32 U.S.C.)
when they have attained 20 years of AS . . . unless ap-
proved for extension, under the policy prescribed in para-
graph b.” Id. Paragraph b provides that “AGR
commissioned officers . . . may be retained on AD beyond
4 DANIEL CAMERON v. US
20 years of AS through a board process, convened at least
annually.” Id. Under paragraph b(1), “[c]onsideration of
eligible officers for retention is automatic, as such; officers
need not apply for retention consideration.” Id. (emphasis
added). Paragraph b(3)(a) assigns responsibility for
managing the retention board process to the Deputy Chief
of Staff. Id.
In response to the change, the Federal NGB issued a
memo dated October 9, 2003 announcing that it would
convene its continuation board on January 12, 2004.
Similarly, on December 3, 2003, the Oregon Reserve
Army National Guard (ORARNG) announced that it
would conduct its Title 32 AGR continuation board on
January 26, 2004. Prior to January 2004, Col. Cameron
learned that some of his contemporaries had received a
memorandum advising them that they would be consid-
ered by AFSTCBs. Although Col. Cameron fell within the
zone of eligibility, he was not notified about either reten-
tion board.
Similarly, a memorandum was circulated before the
2005 continuation boards were convened. Col. Miracle of
the NGB, the then-Chief of the Personnel Policy and
Readiness division, issued a memorandum on October 13,
2004 concerning the “FY 2005 [ARNG] Title 10/32 AGR
Officer [AFSTCBs].” J.A. 50–54. The October 2004 memo
set forth a board process as required by the regulation
that addressed both Title 10 and Title 32 officers. Id.
AFSTCBs were to consider Title 10 and Title 32 AGR
officers who were within the “zone of consideration,” i.e.,
officers attaining 19 or more years of active service be-
tween October 1, 2005 and September 30, 2006. J.A. 51.
The October 2004 memo instructed that “T32 officers will
be boarded by their states/territories,” and “the National
Guard Bureau (NGB-ARZ-T) . . . will board T10 AGR
officers.” J.A. 51. The memorandum went on to define
“Eligible Officers” and “Non-Eligible Officers,” but neither
of those categories specifically referenced Title 32 officers
DANIEL CAMERON v. US 5
serving one-time occasional tours. Id. The parties agree
that Col. Cameron was within the “zone of consideration”
and neither party argues that he fit into any of the cate-
gories of “Non-Eligible Officers” listed in the memoran-
dum. He was not, however, considered by any AFSTCB.
Beginning in December 2003 and continuing through
2005, Col. Cameron initiated various contacts with both
the NGB and the ORARNG requesting to be considered
for continuation. See J.A. 167–68 (advisory opinion from
the Personnel Division of the NGB summarizing Col.
Cameron’s attempts to be included in the deliberations of
either the Title 10 retention board or the Title 32 reten-
tion board). He was told orally that he would not be
considered by the NGB board because he was “T-10
status, but not in the T-10 program.” Id. He was also not
considered by the Title 32 board because the ORARNG
believed he was serving under Title 10, and that the state
board lacked authority to consider officers serving in a
federal capacity. Id. Despite the support of several of his
superiors in his efforts to continue in active service, he
was not considered for retention. See J.A. 168 (summariz-
ing requests by Col. Cameron’s superiors that he remain
on active duty).
Because Col. Cameron was not considered for reten-
tion by any board, he made three separate appeals to the
Army Board for Correction of Military Records (ABCMR)
requesting reappointment and back pay. Cameron v.
United States, 106 Fed. Cl. 551, 556–57 (Fed. Cl. 2012).
Considering his appeal of June 2006, the ABCMR relied
on an advisory opinion from the Personnel Division of the
NGB and concluded that Col. Cameron was not eligible
for consideration by the Title 10 retention board because
“he was on a one-time tour.” J.A. 156. The advisory
opinion and the ABCMR decision relied on the fact that
Col. Cameron’s August 2003 orders were clear that his
duty assignment was to end on February 28, 2006. Id.
Thus, the advisory opinion and ABCMR decision conclud-
6 DANIEL CAMERON v. US
ed that Col. Cameron was not in the “Title 10 program,”
despite the fact that (i) the orders also stated that Col.
Cameron was “transferring from Title 32 AGR to Title 10
AGR,” (ii) the orders were authorized by “10 U.S.C.
12301(d),” and (iii) the orders constituted a “permanent
change of station.” J.A. 180–81. Neither the advisory
opinion nor the ABCMR decision, however, cited to a
specific regulation or policy document addressing Col.
Cameron’s situation, i.e., an officer transferred from Title
32 to Title 10 is not part of the Title 10 program.
Noting that the ABCMR’s decision did not cite to spe-
cific authority for the conclusion that officers on one-time
tours were not eligible for consideration by the NGB
continuation board, Col. Cameron requested reconsidera-
tion. The Board denied the request and made its decision
final. In doing so, however, the Board articulated differ-
ent reasons in support of its conclusion that Col. Cameron
was ineligible. Id. This time, the ABCMR stated that
Col. Cameron was not “in the zone of consideration for the
continuation board.” J.A. 139.
Believing the ABCMR’s “zone of consideration” rea-
soning to be factually incorrect, Col. Cameron sent a letter
to the ABCMR pointing out the error. J.A. 126–27. The
ABCMR responded by letter, informing him that even
though the wording of the denial letter was “imprecise,”
the conclusions “mirrored” the previous determination.
J.A. 123–24. The letter then informed Col. Cameron that
he had exhausted his administrative remedies. Id.
In March of 2010, Col. Cameron filed suit in the Unit-
ed States District Court for the District of Colorado.
Cameron, 106 Fed. Cl. at 557. The district court, howev-
er, transferred the case to the United States Court of
Federal Claims. Id. The Court of Federal Claims then
remanded to the ABCMR. J.A. 115.
On remand, the ABCMR requested a second advisory
opinion from the NGB. Cameron, 106 Fed. Cl. at 557.
DANIEL CAMERON v. US 7
The second NGB advisory opinion reiterated the belief
that Col. Cameron was not eligible for inclusion in the
Title 10 board process because he was on a “one-time,
occasional tour” and was not part of the “career Title 10
program.” J.A. 61. According to the NGB, if Oregon
wanted Col. Cameron to return to “Title 32 AGR status at
the end of his tour, the state must include him in their
board.” Id. The advisory opinion also explained that a
limited number of positions were available at Col. Camer-
on’s level and that the Oregon board did not extend any
similarly situated officers during the relevant year. Id.
Thus, the opinion concluded that, even though Col. Cam-
eron was never considered by a retention board, he was
“treated in the same manner as similarly situated offic-
ers.” Id.
The ABCMR also requested an advisory opinion from
the ORARNG. Cameron, 106 Fed. Cl. at 558. Whereas
the NGB opinion concluded that Col. Cameron could only
have been reviewed by a Title 32 board, the ORARNG
opinion concluded that Col. Cameron could not be re-
viewed by a Title 32 continuation board because “[s]tates
were not authorized to review Title 10 officers per NGB
guidance.” J.A. 99. Thus, the ORARNG concluded that
only a Title 10 continuation board could have reviewed
Col. Cameron.
Relying on the second NGB advisory opinion, the
ABCMR concluded that Col. Cameron was not eligible for
consideration by the Title 10 continuation board. And,
because Col. Cameron’s state did not continue any Title
32 officers at his level, his only choices were to retire or
join the inactive reserves. J.A. 43. Thus, the ABCMR
concluded that Col. Cameron’s “decision to retire was
voluntary given his choices” and that “the evidence pre-
sented [did] not demonstrate the existence of a probable
error or injustice.” J.A. 43–44.
8 DANIEL CAMERON v. US
After the ABCMR maintained its position on remand,
the government filed motions in the Court of Federal
Claims arguing that the court lacked subject matter
jurisdiction and that Col. Cameron had failed to state a
justiciable claim. Cameron, 106 Fed. Cl. at 553. In the
alternative, the government sought judgment on the
administrative record. Id. Col. Cameron also sought
judgment on the administrative record. Id.
The Court of Federal Claims judge held a telephone
hearing on the outstanding motions. NGB’s counsel,
Maximo Gonzalez, participated in the hearing even
though he was not an attorney of record in the case.
During the hearing, the judge asked Mr. Gonzalez various
questions about the relevant regulations and NGB proce-
dures. J.A. 573–91. After several exchanges between the
court and Mr. Gonzalez, Col. Cameron’s counsel objected
that Mr. Gonzalez was giving improper testimony. J.A.
573–91. The court explained that Mr. Gonzalez was only
there to assist the court in understanding the regulations,
and that the court would not rely on Mr. Gonzalez’s
testimony absent verification in the regulations them-
selves. J.A. 589.
After the hearing, the judge denied the government’s
motions to dismiss for lack of subject matter jurisdiction
and for failure to state a claim. Cameron, 106 Fed. Cl. at
553. The judge then found for the government on the
cross motions for judgment on the administrative record.
Id.
Col. Cameron appeals to this court, alleging that the
Court of Federal Claims erred in affirming the ABCMR’s
decision that Col. Cameron had not been wrongfully
discharged, and that the Court of Federal Claims erred in
allowing Mr. Gonzalez to “testify” at the hearing.
DANIEL CAMERON v. US 9
II.
This court has jurisdiction over final decisions of the
United States Court of Federal Claims under 28 U.S.C.
§ 1295(a)(3). Final decisions granting or denying a motion
for judgment on the administrative record are reviewed
without deference. Chambers v. United States, 417 F.3d
1218, 1227 (Fed. Cir. 2005). This court, therefore, reap-
plies the statutory review standard applied by the lower
court. Id. With respect to the review of a decision by a
military correction board, this court will overturn a deci-
sion only if it is “arbitrary, capricious, unsupported by
substantial evidence, or contrary to law.” Lewis v. United
States, 458 F.3d 1372, 1376 (Fed. Cir. 2006).
Interpretation of a regulation is a question of law that
this court reviews without deference. Reflectone, Inc. v.
Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc).
Regulations receive the same review as statutes. Leng-
erich v. Dep’t of Interior, 454 F.3d 1367, 1370 (Fed. Cir.
2006) (citing Bowles v. Seminole Rock & Sand Co., 325
U.S. 410, 414–15 (1945)). The court first reviews the
language of the words in the regulation to ascertain its
meaning. Lockheed Corp. v. Widnall, 113 F.3d 1225, 1227
(Fed. Cir. 1997). In doing so, this court considers the
regulation as a whole, and does not focus solely on isolat-
ed sentences or provisions. Beecham v. United States, 511
U.S. 368, 372 (1994).
Where a term in a regulation is ambiguous, the Su-
preme Court has accorded deference to the agency’s
interpretation of its own regulation. See, e.g., Auer v.
Robbins, 519 U.S. 452, 457 (1997); U.S. v. Larionoff, 431
U.S. 864, 872 (1977) (“In construing administrative regu-
lations, ‘the ultimate criterion is the administrative
interpretation, which becomes of controlling weight unless
it is plainly erroneous or inconsistent with the regula-
tion.’” (quoting Bowles, 325 U.S. at 414)). The level of
deference is particularly high in the case of military
10 DANIEL CAMERON v. US
regulations and military personnel decisions. Voge v.
United States, 844 F.2d 776, 779 (Fed. Cir. 1988) (“Judi-
cial deference must be ‘at its apogee’ in matters pertain-
ing to the military and national defense.”).
The Supreme Court, however, has recently clarified
that judicial deference to an agency’s interpretation is not
without limits. See, e.g., Christopher v. SmithKline
Beecham Corp., 132 S. Ct. 2156, 2166 (2012). Deference
will not be accorded to an agency’s construction where it
is plainly erroneous or inconsistent with the regulation
itself. Id. Similarly, deference is “unwarranted” when
the “agency’s interpretation conflicts with a prior inter-
pretation.” Id. And deference is not appropriate where
the agency’s interpretation “is nothing more than a con-
venient litigating position . . . or a post hoc rationalization
advanced by an agency seeking to defend past agency
action . . . .” Id. (internal quotation marks and citations
omitted).
III.
The core issue in this case is whether the Army acted
contrary to the language of AR 135–18 when Col. Camer-
on was retired without consideration by a retention board.
Col. Cameron argues that the regulation mandates that
he should have received automatic consideration by a
retention board. The government argues that the word
“eligible” in the regulation is ambiguous. Thus, the
government argues that this court should defer to the
NGB’s interpretation of “eligible” and its conclusion that
Col. Cameron was not “eligible” for review by a Title 10
retention board because he was on one-time orders when
he reached the twenty-year mark. In affirming the
ABCMR’s decision that Col. Cameron was not wrongfully
discharged, the Court of Federal Claims agreed with the
government that “eligible,” as used in AR 135–18, ¶ 4–7,
is ambiguous because an express definition is not provid-
ed. Cameron, 106 Fed. Cl. at 562.
DANIEL CAMERON v. US 11
This court disagrees that “eligible” is ambiguous. AR
135–18, ¶ 4–7 (2003) expressly provides:
4–7. Extension on active duty or FTNGD beyond
20 years [Active Service (AS)]
a. AGR officers, to include warrant officers
and commissioned warrant officers, will
be released from [Active Duty (AD)] (serv-
ing under 10 USC) or [Full Time National
Guard Duty (FTNGD)] (serving under 32
USC) when they have attained 20 years
of AS . . . unless approved for extension,
under the policy prescribed in paragraph
b.
b. AGR commissioned officers . . . may be re-
tained on AD beyond 20 years of AS
through a board process, convened at
least annually.
(1) Consideration of eligible officers for
retention is automatic, as such; offic-
ers need not apply for retention con-
sideration.
(2) Time in grade requirements, for re-
tirement purposes, will be in accord-
ance with the provisions of section
1370, Title 10 USC.
(3) [Deputy Chief of Staff (DCS)], G-1
(DAPE-MPO)–
a. Will manage the retention board
process by adhering to Depart-
ment of Army board procedures.
b. Is responsible for writing the
memoranda of instruction, recess-
ing boards, and processing the re-
sults to C, NGB, the CAR, or the
ASA (A & RA) as appropriate.
AR 135–18, ¶ 4–7 (2003) (emphases added).
12 DANIEL CAMERON v. US
By its language, paragraph 4–7(a) applies to both
AGR officers serving under Title 10 and AGR officers
serving under Title 32. It therefore must have applied to
Col. Cameron, regardless of whether he was serving in
federal, i.e., Title 10, or state, i.e., Title 32, status. Para-
graph 4–7b(1), then provides that consideration for such
officers will be “automatic.” The regulation makes no
mention of “Title 10 program,” “Title 32 program,” “Title
10 status,” “Title 32 status,” or any requirement other
than being an AGR officer who has “attained 20 years of
AS.” A plain reading of the regulation, therefore, dictates
that the word “eligible” can only have been intended to
require that the officer in question be an AGR officer who
has served for the required period of time. This interpre-
tation is also consistent with the February 2003 memo-
randum from the Assistant Secretary of the Army that
sought to “provide for consistent application, fairness and
equity” in the retention process, and end the “case-by-case
… piecemeal approach” in place prior to 2003. J.A. 57.
Therefore, this court finds no ambiguity in the term
“eligible” in the regulation.
The parties agree that based on the unambiguous def-
inition of “eligible,” Col. Cameron was an eligible officer
under the language of the regulation. See Appellant’s Br.
26. The regulation unambiguously and expressly entitled
him to automatic review by a retention board. Thus,
because the military must follow its own regulations, the
Army erred in failing to ensure that Col. Cameron re-
ceived what AR 135–18 promised. See Murphy v. United
States, 993 F.2d 871, 873 (Fed. Cir. 1993) (“[Even w]hen
the military is given unlimited discretion by Congress, it
is nevertheless bound to follow its own procedural regula-
tions if it chooses to implement some.”); Voge, 844 at 779
(noting the long-established principle that agencies must
follow their own regulations).
Even if the regulation was ambiguous, the deference
traditionally given to an agency’s interpretation would not
DANIEL CAMERON v. US 13
be warranted here. First, deference may not be warrant-
ed when an interpretation is “nothing more than a con-
venient litigating position . . . or a post hoc rationalization
advanced by an agency seeking to defend past agency
action . . . .” See Christopher, 132 S. Ct. at 2166–67
(internal quotation marks omitted). Here, the two NGB
advisory opinions—explaining the distinction between
“Title 10 status” and “Title 10 program”—were drafted
after Col. Cameron had been discharged and subsequently
filed for reinstatement. See J.A. at 62 (NGB opinion
stating that “[t]here was no specific written regulation”
addressing Col. Cameron’s situation). And the pre-
litigation documents that are in the record have no refer-
ences to distinguishing between “program” and “status.”
J.A. 50 (February, 11, 2003 memorandum from the Secre-
tary of the Army), 57 (October 13, 2004 memorandum
from the NGB’s Col. Miracle, Chief of the Personnel Policy
and Readiness division). The government’s proposed
interpretation, therefore, appears to be an after-the-fact
rationalization prompted by Col. Cameron’s efforts to seek
relief rather than a consistent policy addressing one-time
tour officers.
Not only were the government’s interpretations post-
hoc rationales, but each newly posited rationale differed
from the earlier-provided rationales. See Christopher, 132
S. Ct. at 2159. First, the ABCMR explained that Col.
Cameron was not eligible for consideration because he
was on a one-time tour. J.A. 156 (March 2007 ABCMR
decision based on an NGB advisory opinion). Then, the
ABCMR explained that he was not within the “zone of
consideration.” J.A. 139 (April 2008 ABCMR decision).
Next, his “ineligibility” was based on NGB policy. J.A.
123 (September 2009 letter from the ABCMR Director).
Finally, Col. Cameron was told that the decision to not
consider officers serving one-time tours was “consistent
with regulation, policy, and practice” of the NGB. J.A. 62
(September 2011 NGB advisory opinion). The inconsist-
14 DANIEL CAMERON v. US
encies and series of different rationales provide a further
reason why the interpretation of AR 135–18 advanced by
the government in this appeal does not merit the tradi-
tional level of deference.
In its most recent explanation, the government con-
cedes that Col. Cameron was eligible for automatic con-
sideration by a retention board. Appellee’s Br. 26. Yet,
neither governmental entity—the ORARNG nor the
NGB—considered Col. Cameron when they convened
their respective continuation boards. As a result, Col.
Cameron was discharged without the automatic review
required by the regulation. The NGB directed the organi-
zation of both the state and federal boards, and thus, the
NGB was responsible for ensuring that Col. Cameron was
reviewed by a continuation board. This court does not
dictate which board, i.e., Title 10 versus Title 32, was
required to conduct the automatic review of Col. Cameron.
Nor does this court conclude that Col. Cameron would
have been retained, or should have been retained, had he
been considered by either board. Such personnel deci-
sions are for the military. This court simply holds that, in
Col. Cameron’s case, the military erred when it did not
follow its own unambiguous regulation and provide the
automatic consideration required by its own regulation.
The Court of Federal Claims noted, in passing, that it
lacked jurisdiction to resolve this matter if the fault sits
with the State of Oregon instead of the NGB. Cameron,
106 Fed. Cl. at n.9. The regulation, however, does not
assign the authority to the State of Oregon. Paragraph 4–
7b(3) assigns responsibility for the retention board pro-
cess to the Deputy Chief of Staff. AR 135–18 (2003).
Therefore, to the extent the various memorandums and
policy presentations issued under the authority of the
Deputy Chief of Staff failed to account for soldiers in Col.
Cameron’s situation, the fault lies not with the recipients
of those documents, but with the authority that issued
them. Therefore, neither this court nor the Court of
DANIEL CAMERON v. US 15
Federal Claims need consider whether the State of Ore-
gon properly interpreted the regulation in question. The
responsibility to ensure that all 20-year AGR officers
received an automatic review rested with the DCS, not
the state.
IV.
For the reasons set forth above, this court reverses
the finding of the Court of Federal Claims that Col. Cam-
eron was not wrongfully discharged, and remands for
further proceedings consistent with this opinion. The
remaining arguments have been carefully considered and
found unpersuasive.
REVERSED AND REMANDED
Costs
Costs to Appellant.