Appeal from the United States Court of Federal Claims in No. 11-CV-666, Judge Edward J. Damich.
Jeffrey A. Vogelman, Thomas, Ballenger, Vogelman & Turner, P.C., of Alexandria, Virginia, argued for plaintiff-appellant.
Lauren S. Moore, Attorney, Commercial Litigation 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 Donald E. Kinner, Assistant Director.
Before Dyk, Bryson, and Reyna, Circuit Judges.
Dyk, Circuit Judge.
James Antonellis, an officer in the United States Navy Reserve, appeals from a decision of the United States Court of Federal Claims ("Claims Court") dismissing his back pay claim for failure to state a claim upon which relief can be granted. See Antonellis v. United States, 106 Fed.Cl. 112 (2012). Antonellis alleged that he was entitled to back pay under the Military Pay Act, 37 U.S.C. § 206(a), because the Navy acted improperly in failing to assign him to a pay billet. The Claims Court dismissed Antonellis' claim as nonjusticiable, reasoning that there were no standards by which it could review the Navy's assignment decisions. We affirm.
Antonellis has been a member of the Navy Reserve since 1986. There is no dispute that he "has had a respectable and upstanding career with the Navy." Antonellis, 106 Fed.Cl. at 113. Antonellis is a member of the Ready Reserves, which includes the Selected Reserve and the Individual Ready Reserve. Id. The Selected Reserve is a paid unit; the Individual Ready Reserve is unpaid. Id. The Individual Ready Reserve includes Volunteer Training Units, in which members perform their reserve duties without pay. See Bureau of Naval Personnel Instruction 1001.39F, Ch. 3, § 301 (Sept. 17, 2007). Antonellis appears to contend that there is no relevant difference in the duties performed by paid and unpaid reserve members. See Compl. ¶ 7, Antonellis v. United States, 106 Fed.Cl. 112 (2012) (No. 11-cv-666), ECF No. 1 ("Compl."); Oral Arg. at 35:12–35:32, Antonellis v. United States, No. 2012-5140 (Fed. Cir. argued May 7, 2013) ("Oral Arg.").
The National Command and Senior Officer Non-Command Billet Screening and Assignment Board (the "APPLY Board") possesses delegated authority to appoint officers to Selected Reserve billets. Antonellis, 106 Fed.Cl. at 113–14. It assigns officers to billets pursuant to a policy guidance letter issued by the Commander of the Navy Reserve Forces Command ("Commander"). Id. The Commander's guidance letter directs the APPLY Board to convene panels to evaluate billet candidates based on specified criteria and to "select the best qualified Officer" for each billet. J.A. 30; Antonellis, 106 Fed.Cl. at 114.
The Commander's guidance letter also specifies the selection process. The APPLY Board member responsible for each application "prepare[s] and deliver[s] a briefing" regarding the application and recommends a numerical "confidence factor" to be "voted on by each [APPLY] Board member." J.A. 29–30. Confidence factors range from 0 to 100 percent, with a score of 0 percent indicating that the applicant is "[n]ot competitive with other Officers" and a score of 100 percent indicating that the applicant is an "[o]utstanding Officer" who "should be screened for assignment." J.A. 30.
The Commander's guidance letter also specifies the criteria to be used in evaluating each applicant. It lists "[p]roven and sustained superior performance in command or other leadership positions" and "successful performance and leadership in combat conditions" as important factors and states that the APPLY Board "shall give favorable consideration to those Officers who have displayed superior performance while serving in Individual Augmentee (IA) assignments in direct support of the Global War on Terrorism." J.A. 32–33. The letter further indicates that the APPLY Board "shall give favorable consideration to those Officers with relevant graduate education, experience in specialized areas, and professional military education." J.A. 33. The letter does not specify, however, the weight to be given to each criterion in assigning the numerical confidence factor.
The confidence factor provides the basis upon which applicants are then ranked on a "precedence list." J.A. 30. "The precedence list . . . establish[es] the sequence in which [applicants are] considered for assignments." Id. The Board then conducts deliberations regarding each assignment. The Commander's guidance letter states that the APPLY Board's
goal [is] to select the best qualified Officer to a billet that the majority of the Board members consider the best match for the preference and qualifications of the Officer, the mission of the unit, and ...