Anderson v. United States , 758 F.3d 1336 ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
JAMES ALLPHIN, DANIEL ALVIA, FRANK
AMADOR, PHILIP ANDERSON, AARON ARCE,
LARRY ARMSTRONG, PAUL ARMSTRONG,
MARCOS ARREOLA, MICHAEL ATIENZA, JEREMY
AUSTAD, JEFFREY AVEY, JAMES BACOLO,
JEFFREY BAILEY, MICHAEL BAKER, KEVIN
BAILLARGEON, ROMELYN BANGLOY,
CHRISTOPHER BANKES, CHARLES BARNETTE,
JOSE BARRIOS, CRAIG BAUMCRATZ, TIMOTHY
BAUTISTA, WALTER BEASLEY, JENNIFER
BENSON, JOSHUA BIGLER, BRIAN BORDELON,
KEVIN BRAGWELL, MORGAN BROOKS, MICHAEL
BROPHY, CHRISTOPHER BROWN, KEVIN
BROWN, TARA BROWN, TODD BROWNE,
DERRICK BRUNSON, TOM BURDEN, JOE BUSBY,
NICHOLAS BUTLER, JEFFREY CAMILO,
RODERICK CAMPBELL, LUIS CARDONA,
JONATHAN CARTER, ANTHONY CAUDILL,
MAURICE CELESTINE, ERIC CHAMPLIN,
RAYMOND CHARNAHAN, MATTHEW CLARK,
SETH CLARK, ERIC CLEVINGER, DONALD
CONWAY, DANIEL COOPERWOOD, DARRELL
CRADDOCK, KENNETH CROSTON, TAKONI
DANIEL, STEPHEN DARLOW, TOCCARA DAVIS,
JOHN DECARLO, NICHOLAS DECKARD,
NICHOLAS DECORSE, ADAM DEITZ, GEORGE
DEKLE, JR., ANGEL DELGADO-BURGOS,
ANTHONY DELUCA, EDGAR DIAZ, OSCAR DIAZ,
NATHAN DODSON, BRIAN DORSEY, TRAVIS
DOWNING, ANDREW DYER, AMY ECKERT,
DANIEL EDWARDS, JASON EVANS, FRANKLIN
EVERLY, GIOVANNI FADDA, MAXIMILLAN
2 ANDERSON v. US
FEIGE, LEE FERGUSON, SEVERINO FERNANDEZ,
RUDY FIERRO, KEVIN FISHEL, EDUARDO
FLORES, STEPHANIE FORMAN, GREGORY FOX,
BRYAN FREEMAN, KEVIN GILLES, BRANDON
GOKEY, ANTONIO GOMEZ, LEMUEL GOMEZ,
CYRUS GRAY, DAVID GRAY, BETHANY GREENE,
JASON GREENE, MARVIN GUEVARA, TIMOTHY
GWINN, BENJAMIN HAIGHT, JARROD HALE,
ALLEN HALL, ANDREW HALL, KEVIN
HALLIWELL, WILLIAM HAMBACK, GARY
HARPSTER, JOSEPH HELLER, GARY HERRERA,
MARK HIRSCHEY, JASON HITE, ROBERT
HOLMES, LAINE HOUSECOWDREY,
CHRISTOPHER HUCIK, TIMOTHY HUFF, RASHAD
HUNT, RYAN HUTLEY, AURI INOCENCIO, CORY
DIONS, COREY JACKSON, GREGORY JACKSON,
MELVIN JACKSON, JR., RICHARD JACKSON,
JOSE JALLEGO, CHRISTOPHER JETT,
THEODORE JEWELL, APRIL JOHNSON,
CHRISTOPHER JOHNSON, JAMES JOHNSON,
RANDALL JOHNSON, DERRICK JONES, LEVI
JONES, TIMOTHY KAISER, JASON KAUFFMAN,
BRIAN KENLEY, CHRISTOPHER KILBOURNE,
JAMES KINCAID, NATHAN KLINGMAN, ERIK
KLOSTER, DAVID KNAPP, AMADO KONG, KYLE
KRANTZ, KENNETH KUCHTA, GREGORY
KUFCHAK, JESSICA KUSHON, CHRISTOPHER
KUZNICKI, BRYAN LAMBRECHT, JAMARION
LANE, DAVID LASH, DONALD LAYTON, JASON
LEE, TIMOTHY LICHTENBERG, JOEL LONG,
DANIEL LORD, JEREMY LORD, NEIL LYON,
MIGUEL MADRIGAL, SEAN MAHJEY, EUGENE
MANSUETO, LUIS MARROQUIN, DARWIN
MARTINEZ, JOSEPH MASTERS, BRANDON
MAXWELL, CHRISTOPHER MCDOWELL, STEVEN
MCFADDEN, CHRISTOPHER MCKENNA, ORTIZ
JAVIER MEDINA, MATTHEW MEDLAND, JOHN
MERSBERG, CARLEY MICKLE, RAUL MILANO,
ANDERSON v. US 3
GABRIEL MILBAUER, MICHAEL MOBLEY,
MICHAEL JOHN MOORE, MICHAEL JACOB
MOORE, DAVID MORENO, KATHRYN MORGAN,
BOON MOUA, CHARLES MOURA, KEN MUELLER,
MARLON MUNOZ, VALENTIN MUNOZ, TERRILL
MURRIELL, ADAM MYSLIWY, GIOVANY NEGRON,
LAWRENCE NIEDERMAYER, MATTHEW NORTON,
TIMOTHY NUQUI, JORGE ORTIZ, JOSE PAREDES,
JON PARKS, ALEXANDER PARTIDO,
LAKWANDALYN PATTERSON, WILLIAM
PATTERSON, BRIAN PAYTON, MATTHEW PEACE,
JEAN LUC PELCHAT, JEFFREY PERRY, EARL
PLUMLEE, JEROMY POORE, PHILLIP POTTER,
VERONICA POWELL, GARY POWERS, JOSHUA
RABB, ALFREDO RAGUINDIN, JILL RAMDEEN,
JEFFREY RAMIREZ, ROSAURO RAMOS, SHAWN
RAYMOND, BRIAN REEVES, RONALD
REICHENBACH, MICHAEL RICHARDS, JASON
RILE, JOHN RILLING, CHRSTIAN RIVAS,
WILLIAM RIVERA, JR., DARIO ROAQUIN, LORIE
ROBACK, RAY RODRIQUES, RICHARD
RODRIQUES, JOHN ROGERS, JASON
ROTTERMAN, BRANDI RUE, JOSHUA RUIZ-
RIVERA, ALLEN RUIZ, JOHN SAMIA, MICHAEL
SANDERS, RICARDO SANTOS, JASON
SAUVAGEAU, CESAR SCHIRA, RYAN SCOTT,
WILLIAM SCOTT, VISHNU SEENATH, JASON
SEVERSON, MATTHEW SHAFER, ADAM
SHELLENBARGER, CHRISTOPHER SHEPHERD,
BRAD SIBLEY, RONALD SIMON, DEVON SIMS,
BRADLEY SMITH, JESSE SMITH, LUKE SMITH,
DANIEL SNOCK, A. SORRENTINO, MICHAEL
SPRAGUE, SHAWN SPRIGGLE, CHRISTOPHER
SPURLOCK, JOHN STACY, CHRISTOPHER
STARKEY, JAMES STEELE, JOHN STEVENS,
DEMARCUS STOKES, DONALD SUBLETT,
RAYMOND SUTHERLAND, TIMOTHY SWANSON,
DAVID SZYMANSKI, SANTOS TAMEZ, PAUL
4 ANDERSON v. US
TAPPEN, JEFFREY TAYLOR, JONATHAN
TAYLOR, DAVID TELLO, JAMES TERRY,
MICHAEL THOMAS, ALYWIN THOMPSON, JUSTIN
THURMAN, JEFFREY TIMMS, JUAN TORRES-
TONCHE, JASON TREMBLAY, RUEL VALERA,
DAVID VASQUEZ, RAUL VASQUEZ, DAVID
VAUGHN, LUIS VEGAS, JOSEPH VERHALEN,
OMAR VIERACLASS, CHITAPANYA VONGSOUTHI,
WILLIAM WALKER, NATALIE WALLACE, SCOTT
WATSON, JOSHUA WEBB, BRADLEY WENZEL,
JAMES WHITE, MICHAEL WHITE, CHARLES
WHITESTONE, JONATHAN WILBURN, JACOB
WILEY, DOUGLAS WILLIAMS, ATHENA
WILLIAMS, JAKEENAN WILLIAMS, MARION
WILLIAMS, MICHAEL WILSON, CHRISTOPHER
WOLFE, KEVIN WOODS, ERIC WOOTEN, ADAM
WORDEN, JARVIS WRIGHT, BRENT YAMADA,
ROGER YOST, CHRISTOPHER YOUNG, TIMOTHY
YOUNG, LIN YUAN, PAUL ZEPEDA, AND ANDREW
ZOBAVA,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5117
______________________
Appeal from the United States Court of Federal
Claims in No. 12-CV-0486, Judge Lynn J. Bush.
______________________
Decided: July 11, 2014
______________________
ANDERSON v. US 5
ELVIN E. KELLER, Keller, Keller & Dalton of Oklaho-
ma City, Oklahoma, argued for plaintiffs-appellants.
DOUGLAS K. MICKLE, Senior Trial Counsel, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
defendant-appellee. With him on the brief were STUART
F. DELERY, Assistant Attorney General, BRYANT G. SNEE,
Acting Director, and STEVEN J. GILLINGHAM, Assistant
Director. Of counsel on the brief was LCDR ANDREW E.
CARMICHAEL, Office of the Judge Advocate General,
United States Navy, of Washington, DC. Of counsel was
DANIEL GENE KIM, Attorney, United States Department of
Justice, of Washington, DC.
______________________
Before LOURIE, SCHALL, and MOORE, Circuit Judges.
MOORE, Circuit Judge.
Appellants, a putative class of over 300 former sailors,
appeal from the United States Court of Federal Claims’
dismissal of their challenges to the Navy’s implementa-
tion of an Enlisted Retention Board (ERB) that resulted
in their honorable discharges. We affirm.
BACKGROUND
In a March 2011 memorandum to the Deputy Secre-
tary of Defense, the Secretary of the Navy explained that
the Navy would be “challenged to reduce enlisted man-
ning to meet future planned end strength controls due to
record high retention in the current economic environ-
ment.” J.A. 1000. To address these concerns about
overmanning and to “optimize the quality” of the Navy,
the Secretary initiated an ERB to identify approximately
3,000 sailors for separation. Id. The Navy notified all
personnel that the ERB was being convened, outlined a
timeline of the ERB process, and identified the particular
pay grades and overmanned job ratings (i.e., particular
6 ANDERSON v. US
occupational classifications or specialties) that would be
subject to review by the ERB. The Navy notified the
sailors that if their job rating was overmanned, and thus
slated for ERB review, they could apply for conversion to
an undermanned rating that would not be subject to ERB
review, as a contingency in case they were selected to be
discharged. The Navy also published the quotas for each
of the overmanned ratings that would be subject to the
ERB. The Navy claimed that these measures were meant
to give the sailors a clear picture of the competition
among the different ratings and to enable them to make
informed decisions about their careers. The ERB selected
2,946 sailors, including Appellants, for separation. In due
course, Appellants were honorably discharged from the
Navy.
Appellants filed suit in the Court of Federal Claims,
seeking back pay and challenging the action of the ERB
on several grounds. They challenged the merits of the
Navy’s decision to convene the ERB in general and its
decision to discharge Appellants in particular. Appellants
also made procedural challenges to the ERB, contending
that the ERB violated due process and other statutory
and regulatory requirements. Finally, Appellants filed a
motion to disqualify the Court of Federal Claims judge
and a motion to supplement the administrative record.
The government filed a motion to dismiss Appellants’
complaint, or, in the alternative, for judgment on the
administrative record. The Court of Federal Claims
granted the government’s motion. It dismissed Appel-
lants’ merit-based claims as being nonjusticiable, denied
Appellants’ remaining claims on the administrative
record, and denied both of Appellants’ motions. Anderson
v. United States, 111 Fed. Cl. 572 (2013); Anderson v.
United States, No. 12-486 C (Fed. Cl. Feb. 5, 2013), ECF
No. 38 (Recusal Order). This appeal followed. We have
jurisdiction under 28 U.S.C. § 1295(a)(3).
ANDERSON v. US 7
DISCUSSION
I. Appellants’ Merit-Based Challenges to the ERB
The Court of Federal Claims determined that Appel-
lants’ merit-based challenges—that the ERB should not
have been convened and that Appellants should not have
been discharged—were nonjusticiable. Anderson, 111
Fed. Cl. at 582–83. It noted that “[a] challenge to the
merits of a discharge alleged to be wrongful is a nonjusti-
ciable controversy under binding precedent . . . .” Id. at
583 (citing Sargisson v. United States, 913 F.2d 918, 922
(Fed. Cir. 1990)). It further explained that courts cannot
interfere in the military’s power to manage its active-duty
workforce. Id. (citing Murphy v. United States, 993 F.2d
871, 874 (Fed. Cir. 1993)). We review this determination
of nonjusticiability de novo. Adkins v. United States, 68
F.3d 1317, 1322 (Fed. Cir. 1995).
We agree that Appellants’ merit-based challenges are
nonjusticiable. The merits of a military staffing decision
are committed “wholly to the discretion of the military.”
Adkins, 68 F.3d at 1322–23; see Murphy, 993 F.2d at 874
(“[T]he merits of the Air Force’s decision to release [the
plaintiff] from active duty [as part of reduction-in-force
efforts] are beyond judicial reach”); Sargisson, 913 F.2d at
922 (holding that plaintiff’s challenge to the Air Force’s
decision to release him was nonjusticiable because there
were no standards that the court could apply to review
the decision). These precedents, which Appellants do not
address, foreclose judicial review of the Navy’s decision to
institute the ERB and to discharge Appellants. The Navy
has wide discretion to manage its workforce, and its
decisions to institute the ERB and honorably discharge its
sailors are “unquestionably beyond the competence of the
judiciary to review.” Adkins, 68 F.3d at 1322–23. We
affirm the Court of Federal Claims’ dismissal of Appel-
lants’ merit-based claims.
8 ANDERSON v. US
II. Appellants’ Procedural Challenges to the ERB
The Court of Federal Claims also considered and re-
jected Appellants’ multiple procedural challenges, grant-
ing judgment on the administrative record in favor of the
government. Anderson, 111 Fed. Cl. at 585–91. In par-
ticular, the court determined that the Navy’s implementa-
tion of the ERB did not exceed its statutory authority,
ignore the required procedural regulations, or violate
minimum concepts of basic fairness. Id.
We review a judgment on the administrative record
without deference. Barnes v. United States, 200 F.3d
1369, 1372 (Fed. Cir. 2000). Unlike merit-based challeng-
es, procedural challenges to military decisions may be
justiciable, particularly if statutes or regulations govern
the decision. Adkins, 68 F.3d at 1323. As discussed
below, we agree with the Court of Federal Claims’ thor-
ough and well-reasoned opinion granting judgment on the
administrative record.
A. Statutory Authority
Appellants argue that the ERB violated 10 U.S.C.
§ 1169, which provides that “[n]o regular enlisted member
of an armed force may be discharged before his term of
service expires, except . . . as prescribed by the Secretary
concerned.” 10 U.S.C. § 1169. Appellants contend that
“no cause was prescribed by the Secretary for discharge of
the Plaintiffs . . . .” Appellants’ Br. at 6–7. We disagree.
The ERB complied with § 1169. The ERB was properly
prescribed by the Secretary of the Navy in his March 2011
memorandum. J.A. 1000. Even if § 1169 were to require
the Secretary to prescribe “cause” for Appellants’ dis-
charge, as Appellants suggest, the Secretary did so. He
provided two reasons for instituting the ERB that result-
ed in Appellants’ discharge—to reduce overmanning and
“optimize the quality” of the Navy. J.A. 1000. We affirm
the Court of Federal Claims’ rejection of this procedural
challenge.
ANDERSON v. US 9
B. Procedural Regulations
Appellants argue that the ERB violated Department
of Defense (DoD) regulations and the Navy’s own notifica-
tion procedures by failing to provide Appellants proper
notice or an opportunity for a hearing at the time of their
discharges. Appellants assert that they were entitled to
hearings because DoD regulations entitle a sailor with
more than six years of service (which each Appellant has)
to a hearing prior to being involuntarily discharged.
Appellants’ Br. at 23 (citing Department of Defense
Instruction (DoDI) 1332.14, Enlisted Administrative
Separations (Aug. 28, 2008)). They contend that the
record is devoid of any evidence of an Appellant receiving
notice and a hearing in compliance with the regulations.
They argue that at least one Appellant requested and was
denied a hearing. Appellants further assert that the
Navy’s notification procedures require written notice of
separation and the type, basis, and effects of the separa-
tion and that no such notice was provided. Appellants’
Br. at 24–25 (citing United States Navy, Military Person-
nel Manual (MILPERSMAN) 1910-010, Administrative
Separation Policy and General Information (Sept. 20,
2011)).
We conclude that the ERB did not violate DoD regula-
tions. Those regulations authorize early separation of
personnel under a program established by the Secretary.
DoDI 1332.14 Encl. 3, (2)(a)(2). The Secretary established
such a program in his March 2011 memorandum. J.A.
1000 (Secretary initiated ERB under DoDI 1332.14 Encl.
3, (2)(a)(2)).
DoD regulations did not grant the Appellants a right
to a hearing prior to their separation. The regulations do
provide the right to a hearing in some instances, but they
make clear that the right to a hearing only exists if the
specific reason for separation explicitly requires it. DoDI
1332.14 Encl. 5, (1)(a). The reason for separation in this
10 ANDERSON v. US
case, early separation under a program authorized by the
Secretary, does not incorporate the right to a hearing.
DoDI 1332.14 Encl. 3, (2)(a)(2). Nor do DoD regulations
entitle a sailor with more than six years of service to a
hearing if he is involuntarily discharged. The regulations
Appellants cite only state that, in certain instances, a
service member with more than six years of experience
may request a hearing. They do not create a right to the
hearing itself. DoDI 1332.14 Encl. 5, (2)(a)(7), 3(a)(6).
The ERB also did not violate the Navy’s notification
procedures. The Court of Federal Claims correctly con-
cluded that MILPERSMAN does not provide Appellants
with any additional substantive rights. Anderson, 111
Fed. Cl. at 588. By MILPERSMAN’s own terms, its notice
requirement to the enlisted sailors “is a command respon-
sibility, not a procedural entitlement. Failure on the part
of the member to receive or to understand such explana-
tion is not a bar to separation . . . .” MILPERSMAN 1910-
010(5)(c). We affirm the Court of Federal Claims deter-
mination that the ERB did not violate the applicable
procedural regulations.
C. Minimum Concepts of Basic Fairness
Appellants allege that the ERB violates minimum
concepts of basic fairness. Appellants assert that the
ERB violates due process because Appellants were not
told why they were discharged, e.g., for quota, perfor-
mance, or other reasons. Appellants also argue that the
ERB violates the Equal Protection Clause of the Constitu-
tion. They contend that the real reason for the ERB was
to allow the Navy to fire sailors nearing early retirement.
The Court of Federal Claims thoroughly analyzed Ap-
pellants’ arguments in this regard, and we agree with its
conclusion. Anderson, 111 Fed. Cl. at 588–91. Appel-
lants’ honorable discharges resulting from the ERB, to
which no stigma attached, do not implicate a liberty or
property interest sufficient to invoke due process rights to
ANDERSON v. US 11
notice and a hearing. Keef v. United States, 185 Ct. Cl.
454, 468 (1968) (holding that an honorable discharge for
the convenience of the government in compliance with
regulations and without stigma attached does not require
notice or hearing). Moreover, the ERB was conducted in
accordance with minimum concepts of basic fairness. In
particular, the Navy informed all sailors of the institu-
tion, schedule, and criteria for the ERB; provided a list of
overmanned ratings; and allowed sailors in overmanned
ratings to apply for conversion to other ratings.
Finally, we agree with the Court of Federal Claims
determination that the ERB does not run afoul of the
Equal Protection Clause. Appellants have not shown that
their equal protection claim is founded on discrimination
against a suspect class or that the ERB fails to comport
with rational basis review.
III. Motion to Recuse
Appellants filed a motion seeking recusal of the judge
based on her former employment at the Department of
Justice from 1976 to 1987 and as an attorney for the Navy
from 1987 to 1996. The judge denied the motion, deter-
mining that her prior employment did not create a rea-
sonable basis for questioning her impartiality. Recusal
Order at 2–4. We review this decision for an abuse of
discretion. Shell Oil Co. v. United States, 672 F.3d 1283,
1288 (Fed. Cir. 2012).
Appellants assert that the judge’s prior employment
creates an appearance of impropriety because the Appel-
lants doubt her impartiality. The federal recusal statute
requires recusal “in any proceeding in which [the judge’s]
impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a). This is an objective test that mandates recusal
“when a reasonable person, knowing all the facts, would
question the judge’s impartiality.” Hewlett-Packard Co. v.
Bausch & Lomb, Inc., 882 F.2d 1556, 1568 (Fed. Cir.
1989). Appellants’ subjective beliefs about the judge’s
12 ANDERSON v. US
impartiality are irrelevant. The judge’s prior work for the
Department of Justice and the Navy over seventeen years
ago does not raise a reasonable question as to her impar-
tiality. A “mere prior association [does not] form a rea-
sonable basis for questioning a judge’s impartiality.”
Maier v. Orr, 758 F.2d 1578, 1583 (Fed. Cir. 1985) (judge’s
military service nine years prior to the appeal, without
any financial connection to this case, did not require
recusal). We affirm the Court of Federal Claims’ denial of
Appellants’ recusal motion.
IV. Motion to Supplement the Administrative Record
The Court of Federal Claims denied Appellants’ mo-
tion to supplement the record with four additional docu-
ments: three Navy Times articles discussing recruitment,
enlistment, and workforce reduction activities and an e-
mail chain containing quotas for various job ratings. The
court determined that these documents were relevant
only to Appellants’ nonjusticiable merit-based claims, but
not necessary for an effective judicial review of Appel-
lants’ justiciable procedural claims. Anderson, 111 Fed.
Cl. at 578–79. It thus determined that our precedent
compelled denial of Appellants’ motion. Id. (citing Axiom
Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380
(Fed. Cir. 2009)). We review this decision for an abuse of
discretion. Axiom, 564 F.3d at 1378.
We hold that the Court of Federal Claims did not
abuse its discretion. Appellants argue that the four
documents provide additional evidence that the Navy was
not overmanned at the time the ERB was initiated.
Appellants’ Br. 12–16. They contend that this supports
their arguments that the ERB should not have been
initiated and that Appellants should not have been dis-
charged. Id. We agree that the four documents are only
relevant to Appellants’ nonjusticiable merit-based chal-
lenges, and hold that the court did not abuse its discretion
by denying Appellants’ motion to supplement. See Axiom,
ANDERSON v. US 13
564 F.3d at 1380 (“[S]upplementation of the record should
be limited to cases in which the omission of extra-record
evidence precludes effective judicial review.”) (quotations
omitted). We thus affirm the Court of Federal Claims
decision denying Appellants’ motion to supplement the
record.
CONCLUSION
We have considered the remainder of Appellants’ ar-
guments but do not find them persuasive. For the forego-
ing reasons, we affirm the Court of Federal Claims
decision.
AFFIRMED