Nicely v. United States

Case: 20-1856 Document: 70 Page: 1 Filed: 01/20/2022
United States Court of Appeals
for the Federal Circuit
______________________
JOSIAH E. NICELY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2020-1856
______________________
Appeal from the United States Court of Federal Claims
in No. 1:16-cv-01264-DAT, Judge David A. Tapp.
______________________
Decided: January 20, 2022
______________________
CHARLES W. GITTINS, Lake Frederick, VA, argued for
plaintiff-appellant.
JOSEPH ALAN PIXLEY, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by BRIAN M. BOYNTON, ROBERT EDWARD
KIRSCHMAN, JR., DOUGLAS K. MICKLE.
______________________
Before MOORE, Chief Judge, PROST and O’MALLEY, Circuit
Judges.
Case: 20-1856 Document: 70 Page: 2 Filed: 01/20/2022
2 NICELY v. US
Opinion for the court filed PER CURIAM.
Circuit Judge O’MALLEY concurs in the result.
PER CURIAM.
Josiah Nicely appeals a decision of the United States
Court of Federal Claims (“Claims Court”) that: (1) dis-
missed Count II of Nicely’s complaint, which the Claims
Court concluded was predicated on an alleged violation of
the Military Whistleblower Protection Act (“MWPA”), 10
U.S.C. § 1034, over which the court lacked subject matter
jurisdiction; and (2) granted the government’s cross-motion
for judgment on the administrative record as to all remain-
ing issues. Nicely v. United States, 147 Fed. Cl. 727 (2020).
One such issue was Nicely’s contention that the Board for
Correction of Naval Records’ (“BCNR” or “Board”) denial of
his request for correction of his military record must be set
aside because the BCNR contained unauthorized members.
Specifically, Nicely asserts that the BCNR panel that con-
sidered his request contained retired military members
who did not qualify as “civilians of the executive part” of
the Navy as 10 U.S.C. § 1552(a)(1) requires.
On appeal, Nicely challenges the Claims Court’s dis-
missal 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 vi-
olate 10 U.S.C. § 1552(a)(1)’s requirement that the Secre-
tary of the Navy “act[] through boards of civilians of the
executive part of that military department.” For the fol-
lowing reasons, we affirm.
I. BACKGROUND
Nicely served in active duty in the United States Ma-
rine 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 in-
fluence, Nicely went through a series of disciplinary
Case: 20-1856 Document: 70 Page: 3 Filed: 01/20/2022
NICELY v. US 3
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 im-
paired. Second, during the course of non-judicial discipli-
nary proceedings, among other statements regarding the
circumstances of his arrest, Nicely wrote a letter to his
Commanding General admitting to having driven under
the influence on January 22, 2010. Third, in February
2011, after the Board of Inquiry (“BOI”) proceedings had
begun, but before they completed in April 2011 with a dis-
charge recommendation, Nicely filed a reprisal complaint
under the MWPA. The complaint was investigated by the
Marine Corp IG, Nicely was interviewed during the course
of the investigation, and he provided information regarding
his arrest to the IG at that time. Nicely’s complaint was
dismissed in February 2012 based on an IG finding that
there was “no indication that any actions toward Capt.
Nicely occurred as a result of what he considered Protected
Communications.” J.A. 137.
Nicely petitioned the BCNR to correct his military rec-
ord, 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 separa-
tion; (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 argu-
ments and evidence insufficient to establish the existence
of material error or injustice and therefore denied his peti-
tion for relief. Id.
Case: 20-1856 Document: 70 Page: 4 Filed: 01/20/2022
4 NICELY v. US
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 rel-
evant to this appeal, Nicely alleged in Count II that his dis-
charge 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 as-
serted that some members of the BCNR were not statuto-
rily 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 irrel-
evant to its recommendation because Nicely had inde-
pendently admitted to his supervising officer in writing
that he had, in fact, been driving while impaired in Janu-
ary 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 of-
ficers—are precluded from sitting on military correction
boards under 10 U.S.C. § 1552(a). Id. at 736. After consul-
tation with the counsel’s office at the Department of De-
fense (“DoD”) on that question, a three-member panel of
the Board with no prior military service considered the is-
sue. In a June 2019 decision, the Board found that “none
of the provisions in the BCNR’s authorizing statute and
governing regulations expressly define ‘civilian,’ and thus
do not expressly exclude retired military members from
those civilians who may serve as Board members.” Id.;
J.A. 334. The Board concluded that “the use of retired mil-
itary members was not in error or unjust,” and therefore
denied Nicely’s request for relief. Nicely, 147 Fed. Cl.
at 737. The case was again returned to the Claims Court.
Case: 20-1856 Document: 70 Page: 5 Filed: 01/20/2022
NICELY v. US 5
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 juris-
diction. 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 claims, such as Nicely’s standalone claim as
pleaded in Count II.” Id. Although Nicely insisted his
claim was one under the MPA and not the MWPA, the
court concluded that the substance of his allegations belied
that assertion. The court concluded that, once properly
characterized based on the real substance of his allega-
tions, the court lacked jurisdiction to consider Count II.
The court also rejected Nicely’s argument that retired mil-
itary officers are not “civilians” and therefore cannot serve
as members of the BCNR. In reaching its conclusion, the
Claims Court applied the framework set out in Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984). After first determining that Congress had
not spoken to the issue, the court concluded that, looking
to the statutory text, dictionary definitions, and language
used elsewhere in Title 10, “it was reasonable for the BCNR
to conclude that Congress intended the term ‘civilian’ to
have an ordinary meaning that includes former and retired
military members.” Nicely, 147 Fed. Cl. at 741. The court,
thus, said it would defer to the BCNR’s conclusion on the
constitution of the Board. The court then denied Nicely’s
remaining claims, finding that he failed to meet his burden
of establishing that the BCNR’s determinations were arbi-
trary, capricious, or contrary to law.
Nicely timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
II. DISCUSSION
On appeal, Nicely argues that the Claims Court erred
when it: (1) dismissed Count II of his complaint for lack of
Case: 20-1856 Document: 70 Page: 6 Filed: 01/20/2022
6 NICELY v. US
subject matter jurisdiction and (2) agreed with the BCNR
that retired military officers qualify as “civilians” within
the meaning of 10 U.S.C. § 1552(a)(1) and therefore are
permitted to serve on correction boards. He does not ap-
peal any other issues decided by the Claims Court.
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 establish-
ing 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 sub-
mits that his claims were entirely based on the MPA, we
agree with the Claims Court that this argument is “inex-
plicabl[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 as-
sessing the scope of the Claims Court’s (and our) jurisdic-
tion over those claims, not the label a claimant places on
them. The entire predicate for Count II of Nicely’s com-
plaint 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 whistle-
blower issues within the military. 10 U.S.C. § 1034(a)–(h).
Reviewing this statutory scheme, we have held that the
MWPA is not a money-mandating statute and that the
Claims Court does not possess jurisdiction to entertain
MWPA claims. Rana, 664 F. App’x at 948 (citing Lewis v.
United States, 476 F. App’x 240, 244 (Fed. Cir. 2012)); Bias,
722 F. App’x at 1013. The Claims Court correctly con-
cluded that Nicely’s claim in Count II arose under the
Case: 20-1856 Document: 70 Page: 7 Filed: 01/20/2022
NICELY v. US 7
MWPA and not the MPA and that the court, therefore,
lacked jurisdiction to consider Nicely’s claim.
B. Interpretation of 10 U.S.C. § 1552(a)(1)
As to the second issue, we review a Claims Court deci-
sion granting or denying a motion for judgment on the ad-
ministrative 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 un-
less it is arbitrary, capricious, contrary to law, or unsup-
ported by substantial evidence.” Id.Resolution of Nicely’s second issue on appeal requires
us to consider what appears to be an issue of first impres-
sion: whether permitting retired military officers to sit on
the BCNR violates 10 U.S.C. § 1552(a)(1). Nicely main-
tains that it does, and argues that his original BCNR was
improperly constituted because it included retired commis-
sioned officers as members. The government admits that
§ 1552 does not define the term “civilian,” but points out
that it does not expressly exclude former commissioned
military officers from serving on correction boards. Accord-
ing to the government, the BCNR correctly interpreted
§ 1552(a)(1) to permit retired officers to serve on correction
boards, and the Claims Court was correct to defer to that
conclusion under Chevron. We conclude that the best in-
terpretation of § 1552(a)(1) is the interpretation the BCNR
adopted, so we need not decide whether or how the Chevron
framework applies here. See, e.g., Chudik v. Hirshfeld, 987
F.3d 1033, 1039 (Fed. Cir. 2021).
1. Statutory Text
When interpreting a statute, we “begin with the lan-
guage employed by Congress.” Engine Mfrs. Ass’n v. S.
Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252 (2004) (in-
ternal quotation marks and citation omitted). Sec-
tion 1552, provides in relevant part:
Case: 20-1856 Document: 70 Page: 8 Filed: 01/20/2022
8 NICELY v. US
The Secretary of a military department may cor-
rect any military record of the Secretary’s depart-
ment 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 ci-
vilians of the executive part of that military depart-
ment.
10 U.S.C. § 1552(a)(1) (emphasis added). The statute
therefore requires that the Secretary of a military depart-
ment, when exercising discretion to correct military rec-
ords, must “act through boards of civilians of the executive
part of that military department.” Id.The BCNR is under the direction and supervision of the
Assistant Secretary of the Navy (Manpower & Reserve Af-
fairs) 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 de-
partment. 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 mil-
itary 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 understood
meaning.’” Executive Jet Aviation, Inc. v. United States,
125 F.3d 1463, 1468 (Fed. Cir. 1997) (quoting Koyo Seiko
Co. v. United States, 36 F.3d 1565, 1571 n.9 (Fed. Cir.
1994)). The question we must ask is whether well-known
principles of statutory interpretation reveal the meaning of
any such silence. Burns v. United States, 501 U.S. 129, 136
Case: 20-1856 Document: 70 Page: 9 Filed: 01/20/2022
NICELY v. US 9
(1991) (“An inference drawn from congressional silence cer-
tainly cannot be credited when it is contrary to all other
textual and contextual evidence of congressional intent.”).
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 in-
formed 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 per-
son who is not on active duty in the armed services. See
Webster’s New World College Dictionary (4th ed. 2010) (de-
fining 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 differ-
entiation 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.” 10 U.S.C. § 976(a)(1).
Elsewhere in Title 10, “active duty” is defined as “full-time
duty in the active military service of the United States.” 10
U.S.C. § 101(d)(1). Taken together, these definitions sug-
gest that a “retired” member of the military—a person who
Case: 20-1856 Document: 70 Page: 10 Filed: 01/20/2022
10 NICELY v. US
is not serving in full-time active duty—is not a “member of
the armed forces” and therefore would not normally qualify
as a “civilian.”
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 mem-
bers of the military are “civilians” by creating post-retire-
ment waiting periods before such personnel could be
appointed to certain high-level civilian positions. For ex-
ample, 10 U.S.C § 113(a), which provides that the Secre-
tary of Defense must be “appointed from civilian life,”
excludes from eligibility any person who is “within seven
years after relief from active duty as a commissioned officer
of a regular component of an armed force.” See also
10 U.S.C. § 134(a) (excluding from eligibility for Under Sec-
retary of Defense for Policy persons who are “within seven
years after relief from active duty as a commissioned officer
of a regular component of an armed force”). Similar re-
quirements exist for the Secretaries of the Navy and Army.
See 10 U.S.C. §§ 8013(a), 7013(a) (providing for appoint-
ment from “civilian life” after five years of relief from active
duty). And, Congress imposed similar restrictions on the
appointment of judges for the United States Court of Ap-
peals for the Armed Forces. See 10 U.S.C. § 942(b)(1), (b)(4)
(providing that “[e]ach judge shall be appointed from civil-
ian life by the President,” but prohibiting appointment of
persons who are within seven years after retirement from
active duty as a commissioned officer).
The express statutory exclusion of retired military of-
ficers 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 eligi-
ble 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
Case: 20-1856 Document: 70 Page: 11 Filed: 01/20/2022
NICELY v. US 11
service on correction boards, it could have done so ex-
pressly. The absence of such a period in § 1552(a)(1)
strongly suggests that retired military officers qualify as
“civilians” for purposes of the BCNR upon retirement and
commencement of service in the executive department of
the Navy. The use of the term “civilian” throughout Title
10 to include former and retired members of the military is
consistent with the ordinary meaning of “civilians”—that
is, a person who is “not serving on active duty in the mili-
tary.” See Nicely, 147 Fed. Cl. at 741; JA. 335.
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 propo-
sition that retired military members are not civilians
within the meaning of 10 U.S.C. § 1552(a). He also cites
several cases in the military retirement pay context for the
proposition that “retired officers are in the military service
of the government.” Appellant Br. 9 (quoting United States
v. Tyler, 105 U.S. 244, 245 (1882)). None of these cases
persuasively support Nicely’s position, however.
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 over-
rule the substantiated findings of the correction board on
the advice of others. See Proper, 139 Ct. Cl. at 526 (explain-
ing that the Secretary of the Army could not disregard the
findings of the correction board in favor of the contrary ad-
vice 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 rejec-
tion of the BCNR’s recommendation was unjustified, where
the Board’s recommendation was supported by the record
Case: 20-1856 Document: 70 Page: 12 Filed: 01/20/2022
12 NICELY v. US
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 § 1552(a). In Strickland, “[t]he sole issue [was]
whether the Assistant Secretary acted outside his statuto-
rily-granted powers when he rejected the recommendation
of the [BCNR].” Id. at 1337. We concluded that “he did
not, and that the trial court erred in interpreting § 1552(a)
to mandate that the Assistant Secretary cannot reject a
Board recommendation.” Id. In reaching this conclusion,
we clarified “the point of Proper and Weiss: Congress
wanted final decisions on records corrections to be made by
civilians in each military department, not uniformed offic-
ers. In both cases the Secretary effectively deferred to a
professional military officer over the reasonable decision of
the Board.” Id. at 1342. Because “no uniformed officer was
involved in any decision-making” in Strickland, and it was
the Secretary’s own decision to reject the BCNR’s recom-
mendation, we concluded that neither Proper nor Weiss
was applicable. Id.
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 involve-
ment.” Strand, 951 F.3d at 1353 (internal quotation marks
and citation omitted). In Strand, the BCNR issued a deci-
sion 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 memo-
randum requesting that the Secretary of the Navy review
the 2014 BCNR decision, but “without advocating a partic-
ular 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
Case: 20-1856 Document: 70 Page: 13 Filed: 01/20/2022
NICELY v. US 13
Secretary in Proper and Weiss were actual “uniformed mil-
itary officers”—we explained:
Although BCNR Executive Director O’Neill is a re-
tired military officer, his memo requesting Secre-
tarial 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 re-
view this case for decision,” without advocating a
particular outcome of that review.
Id. at 1353 (emphases added) (citations omitted). We ulti-
mately 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 pre-
sented 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 of-
ficer, was a “civilian employee” of the Navy, rather than a
“uniformed military officer,” supports the notion that a re-
tired 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 du-
ties 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 Reserv-
ists qualify as members of the “naval forces” as they “re-
main 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
Case: 20-1856 Document: 70 Page: 14 Filed: 01/20/2022
14 NICELY v. US
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, “fed-
eral law precludes a state court from dividing military non-
disability retired pay pursuant to state community
property laws”). 1
As the Claims Court correctly noted, however, these
cases “provide no support for [Nicely’s] position as they ad-
dress narrow issues of military retired pay, the now-re-
pealed 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 § 1552(a)(1). Im-
portantly, none of the cases on which Nicely relies stand for
1 At oral argument, counsel for Nicely cited a recent
decision from the United States Court of Appeals for the
Armed Forces for the general proposition that retired mem-
bers of the military who continue to receive pay remain in
the military service of the government. Oral Arg. at 9:33–
10:21, available at http://oralarguments.cafc.uscourts.gov/
default.aspx?fl=20-1856_07062021.mp3 (citing United
States v. Begani, Nos. 20-0217, 20-0327, 2021 WL 2639319(C.A.A.F. Jun. 24, 2021)). But Begani—which found that
members of the Navy’s Fleet Reserve could be subject to
court-martial jurisdiction—did not consider or otherwise
address the question of whether retired military officers
acting as civilian employees of a military organization can
serve on military correction boards. See Begani, 2021 WL
2639319, at *1. And, even if it had, it would not bind this
court.
Case: 20-1856 Document: 70 Page: 15 Filed: 01/20/2022
NICELY v. US 15
the proposition that a properly appointed member of the
civil service from the executive part of the military organi-
zation is prohibited from serving on a correction board
merely because they are also retired military.
Accordingly, we hold that the term “civilians” in
10 U.S.C. § 1552(a)(1) includes former and retired mem-
bers of the military serving in the civilian arm of the mili-
tary organization at issue. We therefore agree with the
Claims Court that the BCNR did not act contrary to law or
regulation by permitting retired military officers to serve
as members of the Board, albeit based on a different legal
rationale. Id. at 742.
III. CONCLUSION
We have considered Nicely’s remaining arguments and
find them unpersuasive. Accordingly, we affirm the deci-
sion of the Claims Court.
AFFIRMED
COSTS
No costs.