Filed: Apr. 09, 2020
Latest Update: Apr. 09, 2020
Summary: Case: 18-2038 Document: 39 Page: 1 Filed: 04/09/2020 United States Court of Appeals for the Federal Circuit _ BRIAN R. BAUDE, JOANNA L. MITCHELL, RANDALL E. FELTNER, JASON K. HUMPHREY, JEFFREY W. KERNEKLIAN, DAVID C. KIRKMAN, KENJI LIGON, KALE M. MOSLEY, RICHARD PERRON, CHRISTOPHER T. PROTT, ROBERT B. RUSSELL, STEVEN P. SCHREFFLER, ERIC SUCIU, JAMES A. TREVINO, JOSEPH WILLIAMS, JR., KIRK M. SHAFFER, Plaintiffs JASON D. ENGLE, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee _ 2018-2038 _
Summary: Case: 18-2038 Document: 39 Page: 1 Filed: 04/09/2020 United States Court of Appeals for the Federal Circuit _ BRIAN R. BAUDE, JOANNA L. MITCHELL, RANDALL E. FELTNER, JASON K. HUMPHREY, JEFFREY W. KERNEKLIAN, DAVID C. KIRKMAN, KENJI LIGON, KALE M. MOSLEY, RICHARD PERRON, CHRISTOPHER T. PROTT, ROBERT B. RUSSELL, STEVEN P. SCHREFFLER, ERIC SUCIU, JAMES A. TREVINO, JOSEPH WILLIAMS, JR., KIRK M. SHAFFER, Plaintiffs JASON D. ENGLE, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee _ 2018-2038 _ ..
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Case: 18-2038 Document: 39 Page: 1 Filed: 04/09/2020
United States Court of Appeals
for the Federal Circuit
______________________
BRIAN R. BAUDE, JOANNA L. MITCHELL,
RANDALL E. FELTNER, JASON K. HUMPHREY,
JEFFREY W. KERNEKLIAN, DAVID C. KIRKMAN,
KENJI LIGON, KALE M. MOSLEY, RICHARD
PERRON, CHRISTOPHER T. PROTT, ROBERT B.
RUSSELL, STEVEN P. SCHREFFLER, ERIC SUCIU,
JAMES A. TREVINO, JOSEPH WILLIAMS, JR.,
KIRK M. SHAFFER,
Plaintiffs
JASON D. ENGLE,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-2038
______________________
Appeal from the United States Court of Federal Claims
in Nos. 1:16-cv-00049-EJD, 1:16-cv-00051-EJD, 1:16-cv-
00053-EJD, 1:16-cv-00054-EJD, 1:16-cv-00055-EJD, 1:16-
cv-00056-EJD, 1:16-cv-00057-EJD, 1:16-cv-00058-EJD,
1:16-cv-00059-EJD, 1:16-cv-00060-EJD, 1:16-cv-00061-
EJD, 1:16-cv-00062-EJD, 1:16-cv-00063-EJD, 1:16-cv-
00064-EJD, 1:16-cv-00065-EJD, 1:16-cv-00066-EJD, 1:16-
cv-00392-EJD, Senior Judge Edward J. Damich.
Case: 18-2038 Document: 39 Page: 2 Filed: 04/09/2020
2 BAUDE v. UNITED STATES
______________________
Decided: April 9, 2020
______________________
ELANA NIGHTINGALE DAWSON, Latham & Watkins LLP,
Washington, DC, argued for plaintiff-appellant. Also rep-
resented by ROBERT J. GAJARSA, GABRIEL BELL; IAN BEECH
PETERSEN, Los Angeles, CA.
WILLIAM JAMES GRIMALDI, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellee. Also
represented by ROBERT EDWARD KIRSCHMAN, JR., DOUGLAS
K. MICKLE, JOSEPH H. HUNT; ANNIE W. MORGAN, ERIC W.
WELCH, United States Air Force, Joint Base Andrews, MD.
______________________
Before NEWMAN, O’MALLEY, and WALLACH, Circuit
Judges.
Opinion for court filed by Circuit Judge O’MALLEY.
Dissenting opinion filed by Circuit Judge WALLACH.
O’MALLEY, Circuit Judge.
In 2011, an Air Force Selective Continuation Board
met to determine whether Lieutenant Colonel Jason D.
Engle—then a major in the United States Air Force—
should be continued or involuntarily discharged. Under
the appropriate regulation, DoDI 1320.08, Engle would
have been within the six-year protective window of the reg-
ulation and—as the government concedes—he had no dis-
qualifying information in his record. But, just prior to the
continuation board’s meeting, the Secretary of the Air
Force issued instructions to decrease the protective thresh-
old for officers like Engle and to reverse the regulatory pre-
sumption in favor of continuation. The continuation board
determined that, under these new instructions, Engle
Case: 18-2038 Document: 39 Page: 3 Filed: 04/09/2020
BAUDE v. UNITED STATES 3
should not be continued. On November 30, 2011, Engle
was formally discharged after serving fifteen years, six
months, and two days of active duty. SAppx104. 1 Less
than six months later, Engle was involuntarily called back
up from the reserves, deployed to Kyrgyzstan, and pro-
moted to Lieutenant Colonel. Now, Engle continues to
serve his country, but without the retirement benefits and
additional active duty pay for which he would have quali-
fied if he had been presumptively continued under the orig-
inal regulation.
While the military is given a wide berth with respect to
its decision making, its discretion is not wide enough to jus-
tify the process it employed in this matter. The Adminis-
trative Procedures Act demands more, and officers like
Lieutenant Colonel Engle deserve more.
Engle, on behalf of himself and sixteen others, appeals
from a decision of the United States Court of Federal
Claims (“Claims Court”) upholding denials of petitions for
special boards under 10 U.S.C. § 1558 by the Air Force
Board for Correction of Military Records (“AFBCMR”).
Baude v. United States, 137 Fed. Cl. 441 (2018); see Appx1
(Judgment). With respect to Engle’s claim, because the
Secretary of the Air Force does not have the discretion to
rewrite DoDI 1320.08, we reverse the judgment of the
Court of Federal Claims and remand for further proceed-
ings. We dismiss with respect to the remaining claims be-
cause Engle, a non-attorney and the sole appellant in this
case, cannot represent or assert rights on behalf of other
parties.
1 Appx refers to the appendices attached to Engle’s
informal brief and supplemental brief. SAppx refers to the
supplemental appendices attached to the government’s in-
formal brief and supplemental brief.
Case: 18-2038 Document: 39 Page: 4 Filed: 04/09/2020
4 BAUDE v. UNITED STATES
I. BACKGROUND
A. Relevant Statutory Framework
An officer in the United States Air Force who holds the
grade of major must appear before a promotion board to
receive further promotions. 10 U.S.C. §§ 611(a), 628(k). If
that officer is twice passed over for promotion, he is typi-
cally discharged. Id. § 632(a). This system is sometimes
referred to as an “up-or-out” system.
Baude, 137 Fed. Cl.
at 447. An officer who would otherwise be discharged un-
der this “up-or-out” framework may nevertheless remain in
active service if a continuation board selects him for con-
tinuation. 10 U.S.C. §§ 611, 637.
Congress delegated the authority to promulgate regu-
lations for the selection of active duty majors for continua-
tion to the Secretary of Defense. Id. § 637(e). Pursuant to
this authority, the Secretary of Defense issued Department
of Defense Instruction (“DoDI”) 1320.08, which governs the
operations of selective continuation boards. In relevant
part, the regulation reads as follows:
A commissioned officer on the Active Duty List in
the grade of O-4 who is subject to discharge accord-
ing to [10 U.S.C. § 632] shall normally be selected
for continuation if the officer will qualify for retire-
ment . . . within 6 years of the date of continuation.
The Secretary of the Military Department con-
cerned may, in unusual circumstances such as
when an officer’s official personnel record contains
derogatory information, discharge an officer invol-
untarily in accordance with [10 U.S.C. § 632].
When the Secretary of the Military Department
concerned intends not to continue larger pools of of-
ficers in the grade of O-4 who would qualify for re-
tirement within 6 years of the date of a
continuation, the Secretary shall notify the [Under
Case: 18-2038 Document: 39 Page: 5 Filed: 04/09/2020
BAUDE v. UNITED STATES 5
Secretary of Defense for Personnel and Readiness]
of the proposed course of action.
DoDI 1320.08, ¶ 6.3 (emphases added). 2
These instructions are straightforward. An officer in a
certain protective window—six years from retirement—
“shall normally be selected for continuation” absent some
“unusual circumstance.” Id. In other words, a department
secretary must continue the officer unless there is a reason
not to, e.g., derogatory information in their personnel file.
The instruction also requires a department secretary to no-
tify the Undersecretary of Defense for Personnel and Read-
iness before “larger pools” of officers within this six-year
protective window are not continued.
Id.
B. The Secretary’s Instructions
On December 6, 2010, the Secretary of the Air Force
(“SecAF”) notified the Under Secretary of Defense for Per-
sonnel and Readiness (“USD(P&R)”) that, in order to “man-
age our officer corps and bring us within Congressionally
mandated end-strength,” he intended to “temporarily sus-
pend” selective continuation for O-3 and O-4 officers within
six years from retirement. Appx1005 (capitalization nor-
malized). The notification was one paragraph:
In our continuing efforts to manage our officer
corps and bring us within Congressionally man-
dated end-strength, I intend to exercise my author-
ity contained in DoDI 1320.08, para 6.3, to not
selectively continue large pools of twice-deferred of-
ficers in the grades of O-3 and O-4 who would oth-
erwise qualify for retirement within 6 years of the
date of a continuation. Exceptions to this decision
will be some Chaplains (i.e., Catholic Priests), some
2 These instructions became effective on March 14,
2007. See SAppx118.
Case: 18-2038 Document: 39 Page: 6 Filed: 04/09/2020
6 BAUDE v. UNITED STATES
rated (i.e., Remotely Piloted Aircraft Operators),
and some Nurse Corps (i.e., Flight and Operating
Room Nurses).
Appx1005. The SecAF did not articulate any “unusual cir-
cumstances” that might warrant non-continuation of these
officers. Id.
C. Lt. Col. Engle’s Involuntary Discharge
On March 7, 2011, Engle, who had served in active duty
for over 14 years, was passed over for promotion from ma-
jor to lieutenant colonel for the second time. Baude, 137
Fed. Cl. at 444. As a result, on March 21, 2011, a Selective
Continuation Board met to evaluate Engle.
Id. Unbe-
knownst to Engle, however, the SecAF had issued a mem-
orandum of instructions to the Selective Continuation
Boards that dramatically changed the policy set forth in
the regulation. The SecAF’s new instructions stated:
Majors who will qualify for retirement within five
years of the convening date of the board shall nor-
mally be continued. Officers not within five years
of retirement may be recommended for continua-
tion, but only if you determine that continuation is
clearly in the best interest of the Air Force . . .
Appx33 (emphases added). This meant Officers now
needed at least an additional year of service to be continued
as a matter of course. Id. The memorandum also in-
structed the Board to calculate the five-year period, i.e.,
how far an officer was from retiring, based on when the
Board convened, as opposed to the “date of continuation,”
as required by the regulation, extending the additional
Case: 18-2038 Document: 39 Page: 7 Filed: 04/09/2020
BAUDE v. UNITED STATES 7
service needed by even more. 3 Compare Appx33, with
DoDI 1320.08, ¶ 6.3.
In addition, the SecAF’s instructions introduced a pre-
sumption of non-continuation into the regulation. The
Board could only recommend an officer for continuation
who was not within five years of retirement as of the con-
vening date if it determined that “it is clearly in the best
interests of the Air Force to do so.” Appx33. As explained
below, for officers like Engle—who were less than six years
from retirement but not less than five, and who had noth-
ing disqualifying in their record—the Secretary’s instruc-
tions (1) redefined the time window for presumptive
continuation, (2) turned the regulatory presumption on its
head, and (3) provided no guidance regarding what should
be deemed clearly in the best interests of the Air Force. Ra-
ther than presume that these officers should be continued,
the instructions told the continuation board to presume
they should not be. 4 And, they told the Board that the
3 Air Force Instruction 36-2501 7.11.3 explains that
the “date of continuation” is “normally” measured from
seven months after approval of the board results. Appx23.
4 The Secretary’s decision to shift the protective win-
dow from six years to five, reflected in his instructions to
the board, was an uncontested break from the military’s
normal policy, which, to date, had adhered to the terms of
the governing regulation. The Air Force acknowledged as
much when members of Congress asked why the same
board that rejected Engle suddenly did not continue 157
majors. See Appx1003 (“In practice, the Air Force (AF) has
generally continued to retirement all Majors twice passed
over for promotion . . . .”); see also Appx1009 (“In accord-
ance with the ‘normal’ policy contained in the DoDI, the Air
Force has traditionally continued officers who are within 6
years of retirement eligibility until 20 years of service,
Case: 18-2038 Document: 39 Page: 8 Filed: 04/09/2020
8 BAUDE v. UNITED STATES
burden for overcoming that presumption was a high one,
which the officers were to bear.
Based on the Secretary’s instructions, the continuation
board rejected Engle along with 156 other officers. If—as
the original regulation required and had always been in-
terpreted by the Air Force—the Board had been told it
should normally continue Engle, he almost certainly would
have been continued. It is undisputed that Engle had no
derogatory information in his record that would have dis-
qualified him from continuation. Indeed, the government
concedes as much. See Oral Arg. at 20:42–51, available at
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=
2018-2038.mp3 (“We are unaware of any derogatory infor-
mation or any decision regarding Engle that was personal
in nature, that is not what the record here shows.”). Nev-
ertheless, the SecAF approved the continuation board’s
recommendations on November 30, 2011, and Engle was
terminated from the Air Force. Baude, 137 Fed. Cl. at 445.
Less than six months after he was formally discharged,
Engle was involuntarily called back up from the reserves
and deployed to Kyrgyzstan. Despite having been passed
over for the position while in active service, moreover,
Engle was promoted to Lieutenant Colonel while serving in
active duty in the reserves. See Oral Arg. at 10:05–10:31
(“[Counsel]: He was actually called back up [from the re-
serves] involuntarily and deployed to Kyrgyzstan and less
than six months after his involuntary discharge in this
case, and while serving in active duty in the reserves, was
promoted to Lieutenant Colonel.”).
D. Procedural History
In 2013, Engle and fifteen other majors petitioned the
AFBCMR to convene a special board that would: (1)
absent some other reason not to do so, such as where the
officer’s record contains derogatory information.”).
Case: 18-2038 Document: 39 Page: 9 Filed: 04/09/2020
BAUDE v. UNITED STATES 9
reconsider its non-continuation decisions, and (2) reinstate
them into active duty, or (3) grant them retirement benefits
under the Temporary Early Retirement Authority pro-
gram. Baude, 137 Fed. Cl. at 446; Appx102. The AFBCMR
denied the petition on January 28, 2015. Appx116.
On January 12, 2016, Engle filed a complaint in the
Claims Court seeking injunctive relief, back pay, attorney’s
fees, and restoration to active duty. His case was consoli-
dated with several other cases involving plaintiffs who had
also been discharged pursuant to recommendations of the
Selective Continuation Board and sought AFBCMR review
of those recommendations. As the Claims Court explained,
“the substantive crux of Plaintiffs’ complaint is a military
pay claim resulting from their allegedly wrongful non-re-
tention because of the AFBCMR’s denial of their requests
for special boards.” Baude, 137 Fed. Cl. at 449.
At this point, the United States moved to remand the
consolidated cases to the AFBCMR. According to the
United States, the AFBCMR had not explicitly denied
plaintiffs’ requests to convene special boards. Thus, re-
mand was appropriate before considering whether the de-
nial was lawful. Id. at 446. The Claims Court agreed and
remanded the case to the AFBCMR on August 29, 2016.
On March 31, 2017, the AFBCMR concluded on re-
mand that there was no need to convene a special board to
correct actions taken by the Selective Continuation Board
because the plaintiffs failed to show they were victims of
an “error or injustice.” Id.
In the Claims Court, both sides filed cross-motions for
judgment on the administrative record. As relevant to this
appeal, the plaintiffs argued that the SecAF: (1) violated
DoDI 1320.08 by changing the criteria for determining how
officers six years from retirement (but not five) were eval-
uated for continuation; (2) failed to properly instruct the
Selective Continuation Board on using the best-qualified
method to make continuation decisions; (3) violated
Case: 18-2038 Document: 39 Page: 10 Filed: 04/09/2020
10 BAUDE v. UNITED STATES
regulations prohibiting the SecAF from convening a contin-
uation board under certain conditions; and (4) erroneously
calculated the time at which officers needed to be five years
from retirement to be continued based on when the Board
convened, instead of when the Board’s results were ap-
proved. 5
Id. at 453.
With respect to the plaintiffs’ DoDI 1320.08 challenge,
the Claims Court agreed with the AFBCMR, and concluded
that the SecAF did not violate the regulation because
(1) the SecAF had the authority to modify the regulation in
“unusual circumstances”; and (2) there was an “unusual
circumstance” to warrant the SecAF’s new instructions.
The Claims Court first reasoned that the use of the
phrase “shall normally” in the regulation indicates that the
SecAF has discretion to modify the regulation in “unusual
circumstances.” Id. at 455. The Claims Court rejected the
plaintiffs’ argument that the regulation restricts the find-
ing of “unusual circumstances” to those personal in nature.
Id. In doing so, the Claims Court adopted the AFBCMR’s
reasoning, agreeing that the language requiring the SecAF
to notify USD(P&R) of his intent not to continue “larger
pools” of officers implies that “there could be some other
categorical basis for denying the continuation.”
Id.
Having determined that the SecAF has the discretion
to unilaterally change the regulation, the Claims Court
concluded that “there was an unusual circumstance that
triggered [the SecAF’s] authority” under DoDI 1320.08.
The Claims Court determined that the “unusual
5 The plaintiff also argued that the Secretary vio-
lated 10 U.S.C. § 691 by reducing manpower below certain
minimum end strength requirements. Baude at 137 Fed.
Cl. at 453. The Claims Court rejected this argument and
Engle is “not pursuing the § 691 argument” here. Appel-
lant Br. 23.
Case: 18-2038 Document: 39 Page: 11 Filed: 04/09/2020
BAUDE v. UNITED STATES 11
circumstance” was the need to “reduc[e] manpower while
also maintaining an appropriate mix of airmen.” Id. at
455–56. This justification was new. Indeed, the SecAF did
not say in his memorandum of instructions that “unusual
circumstances” justified the reduced protective threshold.
Appx33. Nor did his notification to the USD(P&R) identify
any such “unusual circumstances.” Appx1005. In fact, the
only explanation for the SecAF’s actions was the first sen-
tence of his notice, when he stated that he intended to “ex-
ercise [his] authority contained in DoDI 1320.08, para 6.3”
in response to “continuing efforts to manage our officer
corps and bring us within Congressionally mandated end-
strength.” These efforts were not characterized as abnor-
mal. Appx1005.
This description of an “unusual circumstance” also had
not appeared before the AFBCMR. When considering
whether there was an “unusual circumstance,” the
AFBCMR relied on a memorandum submitted by the Air
Force Personnel Center Judge Advocate, which stated:
[T]he requirement to add to the normal force man-
agement mix a change in the retirement window
for twice nonselected majors to be selectively con-
tinued does represent an unusual circumstance in-
dicative of the more drastic measures required at
that time.
Appx1011 (emphasis in original). The Air Force argued
that narrowing the retirement window was a “drastic meas-
ure[] required at that time,” but did not explain why. Nor
did it explain what about the normal force management
mix drastically needed fixing. Nevertheless, on appeal, the
government proposed that the unusual circumstance that
permitted revision of the regulatory scheme that had long
been in place was “the need to reduce the manpower while
maintaining an appropriate mix of airmen.” Baude, 137
Fed. Cl. at 455. The Claims Court agreed with the govern-
ment, granted the government’s motion for judgment on
Case: 18-2038 Document: 39 Page: 12 Filed: 04/09/2020
12 BAUDE v. UNITED STATES
the administrative record, and denied the plaintiffs’ cross-
motion for judgment on the administrative record.
Importantly, to the extent the Secretary wanted or felt
compelled to reduce force numbers, there were alternative
mechanisms to achieve those ends, all of which provided
certain procedural safeguards to officers. For example, the
SecAF may use force shaping boards, as authorized under
10 U.S.C. § 638a, to consider for early retirement or dis-
charge regular officers on the active-duty list. 10 U.S.C.
§ 638a(b) (“Actions which the Secretary of a military de-
partment may take with respect to officers of an armed
force when authorized to do so under subsection (a) are the
following . . . .”). But these types of boards may not recom-
mend “more than 30 percent of the number of officers con-
sidered.” See 10 U.S.C. § 638a(c)(1), (d)(2), (e)(3). The Air
Force may also encourage voluntary separations and accel-
erate retirements before resorting to involuntary separa-
tion of qualified members who are not eligible for
retirement. See Appx1006–1008 (“Incentive programs en-
courage members to voluntarily separate from active duty
. . . Inventive programs include the Voluntary Separation
Benefit, Special Separation Benefit, and the 15-Year Re-
tirement Program . . . [I]nvoluntary retirements and sepa-
rations are reduction-in-force (RIF) and selective early
retirement boards (SERB).”).
Engle timely appealed. We have jurisdiction under 28
U.S.C. § 1295(a)(3).
II. DISCUSSION
We review a decision of the Claims Court granting
judgment on the administrative record without deference,
applying the same standard of review as the trial court.
Barnick v. United States, 591 F.3d 1372, 1377 (Fed. Cir.
2010). We therefore will not disturb the decision of the
AFBCMR denying a special board to correct the decision of
the Selective Continuation Board “unless it is arbitrary,
Case: 18-2038 Document: 39 Page: 13 Filed: 04/09/2020
BAUDE v. UNITED STATES 13
capricious, contrary to law, or unsupported by substantial
evidence.” Id.; 10 U.S.C. § 1558(f)(2)(A)(i)–(iv).
Engle argues that the SecAF violated DoDI 1320.08
when he instructed the Board to narrow the continuation-
eligibility window from six to five years and changed the
calculation date of the protective threshold from the “date
of continuation” to the “convening date of the [continua-
tion] board.” Baude, 137 Fed. Cl. at 457. In particular,
Engle argues that (1) the SecAF lacked the authority to
modify DoDI 1320.08; (2) the SecAF’s instructions were not
responsive to the type of “unusual circumstances” contem-
plated by DoDI 1320.08; and (3) the SecAF’s notice to the
USD(P&R) does not provide the department secretary with
the authority to non-continue officers without reason. Ap-
pellant Supp. Br. 7–8. We agree with Engle on each point. 6
6 Before the Claims Court, the government argued
that the plaintiffs’ challenge with respect to how the Secre-
tary reduced manpower by modifying DoDI 1320.08 is not
justiciable. Baude, 137 Fed. Cl. at 450. The government
also asserted that Engle’s “‘unusual circumstances’ chal-
lenges” should be dismissed as “nonjusticiable” because
Engle’s arguments challenge the SecAF’s “wide discretion
to manage [the Air Force’s] workforce.” Appellee Suppl. Br.
13. As did the Claims Court, we disagree. Although claims
that military decisions are substantively wrong are nonjus-
ticiable, procedural violations underlying military deci-
sions are generally justiciable. Godwin v. United States,
338 F.3d 1374, 1376–79 (Fed. Cir. 2003). Engle’s case is
justiciable because he is challenging whether the SecAF
had authority to modify DoDI 1320.08 and whether, under
the language of the regulation, the SecAF’s instructions
complied with DoDI 1320.08. Engle does not challenge the
SecAF’s general authority to reduce the Air Force’s man-
power and does not challenge any factual assessment of his
Case: 18-2038 Document: 39 Page: 14 Filed: 04/09/2020
14 BAUDE v. UNITED STATES
A. The Secretary of the Air Force
Cannot Rewrite DoDI 1320.08
DoDI 1320.08 states that military secretaries “shall”
administer continuation boards based on “the policies and
procedures prescribed herein.” SAppx118–19. Under this
regulation, an officer within six years from retirement
“shall normally be selected for continuation.” SAppx119.
The regulation then states that, in spite of that rule, an
individual officer might still be non-continued if there is
some “unusual circumstance[]” in his or her case, e.g., de-
rogatory information in his file. Id. Otherwise, the officer
should be continued.
Id. Finally, if the military secretary
intends to non-continue several O-4 grade officers, the Sec-
retary should notify USD(P&R), which oversees this pro-
cess on behalf of the Secretary of Defense.
Id.
The SecAF’s
instructions to the Selective Continuation
Board directly violated DoDI 1320.08. These instructions
decreased the protective threshold for O-4 officers both by
increasing the required number of years of active service,
and by modifying how that number was to be calculated.
The threshold date was now calculated from the earlier
“convening date of the board,” as opposed to the later “date
of continuation” stated in the regulation. Compare
Appx33, with DODI 1320.08, ¶ 6.3. See also Appx23.
In addition, although the regulation expressly states
that an officer within six years from retirement “shall nor-
mally be selected for continuation,” the SecAF’s instruc-
tions did not require the Board to justify discharging Engle.
Appx33. In fact, they said the opposite. The Secretary told
suitability for service. See, e.g., Roth v. United States, 378
F.3d 1371, 1385 (Fed. Cir. 2004). Accordingly, we may “de-
cide whether the military has complied with procedures set
forth in its own regulations.” Fisher v. United States,
402
F.3d 1167, 1177 (Fed. Cir. 2005).
Case: 18-2038 Document: 39 Page: 15 Filed: 04/09/2020
BAUDE v. UNITED STATES 15
the Board that majors like Engle should not be continued
unless the Board “determine[d] that continuation [was]
clearly in the best interests of the Air Force.”
Id. This is
plainly inconsistent with the text of DoDI 1320.08, which
provides: “[a] commissioned officer . . . shall normally be
selected for continuation if the officer will qualify for retire-
ment . . . within six years . . . .” DoDI 1320.08 ¶ 6.3.
The AFBCMR and the Claims Court justified the Se-
cAF’s disregard for the regulation, contending that the use
of the phrase “shall normally” does not mandate an action
but “merely establishes the norm.” Baude, 137 Fed. Cl. at
455. But the text of the regulation does not support such a
sweeping reading of that language. The regulation’s use of
“shall normally” is not an invitation for department secre-
taries to decide who deserves to be presumptively contin-
ued. It is an instruction that an officer shall normally be
continued absent unusual circumstances. See SAS Inst.,
Inc. v. Iancu,
138 S. Ct. 1348, 1354 (2018) (“The word ‘shall’
generally imposes a nondiscretionary duty.”). Applying
this presumption is mandatory, even if continuation is not.
Indeed, the SecAF’s instructions themselves reflect
this same understanding. As in DoDI 1320.08, the SecAF
used “shall normally” to tell the continuation board that it
must presumptively continue officers within their newly-
minted five-year window. See Appx33 (“Majors who will
qualify for retirement within five years . . . shall normally
be continued.”). Just as the continuation board did not
have discretion to ignore the Secretary’s instruction to pre-
sumptively continue officers within five years of retire-
ment, the SecAF did not have discretion to change the DoD-
imposed regulatory requirement that officers within six
years of retirement should be presumptively continued.
Kingdomware Techs., Inc. v. United States, 136 S. Ct.
1969 (2016), on which the dissent relies, does not suggest
that “shall normally” is permissive. In fact, the Court
acknowledged in Kingdomware that the word “shall”
Case: 18-2038 Document: 39 Page: 16 Filed: 04/09/2020
16 BAUDE v. UNITED STATES
“normally creates an obligation impervious to judicial dis-
cretion.” 136 S. Ct. at 1977. It has the same effect here.
The Secretary must continue officers within six years of re-
tirement unless there is a reason that overcomes the pre-
sumption that he must do so. The dissent’s reading of
“shall normally,” by contrast, does not require anyone to do
anything. See Dissent Op. 8–9. It therefore reads “shall”
out of the rule. Indeed, the dissent assumes that the word
normally removes any presumption in favor of continua-
tion and effectively turns the word “shall” into no more
than a nonce word. Dissent Op. 9.
In further efforts to justify its reading of the rule, the
dissent asserts that the SecAF’s discretion to “set the crite-
ria for continuation is confirmed in other parts of DoDI
1320.08.” Dissent Op. 9 n.4. Here, the dissent points to
paragraphs 6.3.1 and 6.3.2. Id. But these paragraphs—
cited by the dissent as demonstrating the limits of the Se-
cAF’s discretion—cap the “Continuation Period” for an of-
ficer, i.e., how long the officer can remain in the service
after being continued. 7 This case, however, is about
whether the Secretary can change who should be continued
in the first place. Limits on whether the Secretary can
keep officers in the service beyond their continuation
date—after they have already been continued—are there-
fore irrelevant.
7 See, e.g., Air Force Instruction 36-2501, Officer Pro-
motions and Selective Continuation (Jul. 16, 2004), ¶ 7.11
(explaining, under the heading “Determining Continuation
Period,” that the Air Force should “[c]ontinue majors until
the last day of the month in which he or she is eligible to
retire as an officer (normally upon competition of 20 years
of total active military service)” unless they “possess criti-
cal skills,” in which case they still “may not be continued
any longer than the last day of the month in which they
complete 24 years of active commissioned service”).
Case: 18-2038 Document: 39 Page: 17 Filed: 04/09/2020
BAUDE v. UNITED STATES 17
Because the SecAF was obligated to follow DoDI
1320.08 in overseeing the continuation process here, see
DoDI 1320.08, ¶ 5.2, corrective action by the AFBCMR is
warranted. See, e.g., Roth v. United States, 378 F.3d 1371,
1381 (Fed. Cir. 2004) (explaining that correction boards are
“obligated not only to properly determine the nature of any
error or injustice, but also to take ‘such corrective action as
will appropriately and fully erase such error or compensate
such injustice.’”).
B. “Unusual Circumstances” Do Not Authorize
a Department Secretary to Modify DoDI 1320.08
The government argues that, despite the plain lan-
guage of the regulation, the Secretary can change the pro-
tective window when presented with “unusual
circumstances” and that the Secretary has complete discre-
tion to decide what qualifies as an unusual circumstance.
The government’s argument is unavailing.
DoDI 1320.08 says that a department secretary
“may . . . discharge an officer” in unusual circumstances.
The text of the regulation is clear: unusual circumstances
may overcome the presumption that an O-4 officer within
the protective window shall be continued. Not only do “un-
usual circumstances” not justify doing away with the pre-
sumption of continuation, but when “unusual
circumstances do come into play, they are to relate to the
individual officer’s circumstances. Basic rules of grammar
compel this conclusion. The “unusual circumstances”
clause is not an invitation to the Secretary to blanketly re-
write the regulation. See, e.g., Starry Assocs., Inc. v. United
States, 892 F.3d 1372, 1380–81 (Fed. Cir. 2018) (“Though
the term ‘special factor,’ standing alone, is ambiguous, Con-
gress’s decision to include an example of a qualifying ‘spe-
cial factor’ cabins the contextual meaning of the term.”).
Congress vested that power in the Secretary of Defense
alone. 10 U.S.C. § 637(e).
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18 BAUDE v. UNITED STATES
The government and the dissent contend that it is non-
sensical to read “unusual circumstances” as “limited to the
personal circumstances of the officer.” Appellee Supp. Br.
17; Dissent Op. 10–11. The government insists: “nothing
in the plain meaning of the instruction precludes the Sec-
retary from identifying unusual circumstances that im-
pacted the Air Force as a whole.” Id. But context and
history suggest otherwise. As to context, the “unusual cir-
cumstances” language in the regulation comes after the im-
position of a presumption of continuation and is in the
sentence referring to the non-continuation of individual of-
ficers. The only enumerated example of an “unusual cir-
cumstance” in the regulation, moreover, is “when an
officer’s official personnel record contains derogatory infor-
mation.” DoDI 1320.08, ¶ 6.3. The law is clear that, when
interpreting statutes or regulations, the provided example,
while not always deemed exclusive, indicates the character
of the circumstances to be considered. See, e.g., Yates v.
United States,
574 U.S. 528, 1085 (2015) (“[W]e rely on the
principle of noscitur a sociis—a word is known by the com-
pany it keeps—to ‘avoid ascribing to one word a meaning
so broad that it is inconsistent with its accompanying
words, thus giving unintended breadth to the Acts of Con-
gress.’”). Accordingly, unenumerated circumstances must
be of that same general character and not totally divorced
from the circumstances described. Because “[a]n exception
to a ‘general statement of policy’ is ‘usually read . . . nar-
rowly in order to preserve the primary operation of the pro-
vision,’” we decline the government’s invitation to interpret
“unusual circumstances” so broadly as to “operate to the
farthest reach of [its] linguistic possibilities” in a manner
that “contravene[s] the statutory design.” Maracich v.
Spears,
570 U.S. 48, 60 (2013).
As for history, the government’s position in this case is
inconsistent with how it has defined unusual circum-
stances in communications to members of Congress and the
public and what it conceded to Congress is the Air Force’s
Case: 18-2038 Document: 39 Page: 19 Filed: 04/09/2020
BAUDE v. UNITED STATES 19
long-standing policy. See, e.g., Appx1003 (“[T]he Selective
Continuation Board had discretion to nonrecommend con-
tinuation of officers with these special skills or more than
15 years of service if the officer’s record did not clearly jus-
tify continuation (e.g., derogatory information, Article
15s/disciplinary action, referral performance reports).”);
Appx1001 (explaining that officers are generally continued
unless there is derogatory information in their file). See
also Appx1009 (“In accordance with the ‘normal’ policy con-
tained in the DoDI, the Air Force has traditionally contin-
ued officers who are within 6 years of retirement eligibility
until 20 years of service, absent some other reason not to
do so, such as where the officer’s record contains derogatory
information.”).
Advancing new arguments on behalf of the govern-
ment, the dissent asserts that an “unusual circumstance”
is not limited to an individual’s circumstances because
“Congress expressly ‘intended’ for the SecAF’s selective
continuation authority ‘to be used sparingly and . . . pri-
marily [as] a means of reducing the numbers in senior [of-
ficer] grades when necessary, such as during a reduction in
force.’” Dissent Op. 11 (quoting H.R. Rep. No. 96–1462, at
27 (1980)). But the dissent misunderstands the context of
the House Report for 10 U.S.C. § 637. Read in the context
of the full report, it is clear that Congress is explaining why
selective-continuation boards are necessary—not whether
the need to reduce manpower itself is an “unusual circum-
stance,” nor whether those Boards could be employed in a
manner not contemplated by Department of Defense regu-
lations. H.R. Rep. 96–1462, at 27 (1980). The dissent mis-
construes Congress’s explanation for the implementation
of selective-continuation boards as an authorization for the
SecAF to use those Boards in a manner that violates the
governing regulation, whenever he believes there is a need
to reduce manpower.
The regulation is unambiguous. A Selective Continua-
tion Board “shall normally” continue an O-4 grade officer
Case: 18-2038 Document: 39 Page: 20 Filed: 04/09/2020
20 BAUDE v. UNITED STATES
within six years of retirement absent “unusual circum-
stances” in an officer’s case, such as derogatory infor-
mation. The “shall normally” language instructs
continuation boards what standard to apply: continue an
officer unless there is a reason not to do so. It is not merely
a suggestion. Under the plain language of the regulation,
the SecAF’s instructions violated DoDI 1320.08 and misin-
terpreted the regulation.
C. The Secretary of the Air Force Did Not
Identify Any “Unusual Circumstances”
Furthermore, even if the SecAF had the authority to
declare any circumstance to be sufficiently unusual to jus-
tify rewriting other aspects of the regulation (which he did
not), there simply were no “unusual circumstances” identi-
fied here. “[A] foundational principle of administrative law
[is] that a court may uphold agency action only on the
grounds that the agency invoked when it took the action.”
Michigan v. E.P.A., 135 S. Ct. 2699, 2710 (2015) (citing
SEC v. Chenery Corp.,
318 U.S. 80, 87 (1943)). This rule
requires agency judgments to stand on their own merit.
Otherwise, they cannot stand at all.
Chenery, 318 U.S. at
88 (“If an order is valid only as a determination of policy or
judgment which the agency alone is authorized to make
and which it has not made, a judicial judgment cannot be
made to do service for an administrative judgment.”).
Here, that means we may only affirm based on the ra-
tionale offered by the SecAF in changing the protective
window.
The government concedes that there were no “unusual
circumstances” akin to derogatory information in Engle’s
file that would have justified his non-continuation.
See Oral Arg. at 20:42–51. Nor did the SecAF point to any
such circumstance in his decision in this matter. The Se-
cAF’s notice to the USD(P&R) and memorandum of in-
structions, for example, mention no unusual circumstances
Case: 18-2038 Document: 39 Page: 21 Filed: 04/09/2020
BAUDE v. UNITED STATES 21
of any kind. Appx1005; Appx33. That alone should end
the inquiry. 8 See Chenery, 318 U.S. at 88.
In spite of this, the Claims Court concluded that “re-
ducing manpower while also maintaining an appropriate
mix of airmen” was an “unusual circumstance” that trig-
gered the SecAF’s authorization to modify the regulation.
Baude, 137 Fed. Cl. at 455. As we explained above, how-
ever, there is no such authorization. The Air Force’s force
management actions cannot constitute “unusual circum-
stances” under the governing regulation because the term
is limited to those personal in nature.
Even accepting that the unusual circumstance contem-
plated in the regulation need not be related to the officers’
service, the Claims Court’s finding is unsupported by the
record. The SecAF’s notice, spanning a single paragraph,
does not discuss maintaining a certain mix of officers,
much less explain why that was an unusual circumstance.
See Appx1005. Similarly, the SecAF’s memorandum of in-
structions to the Board does not identify the need to reduce
manpower and simultaneously maintain an appropriate
mix of airmen, as the Claims Court’s opinion purports. Id.;
Baude, 137 Fed. Cl. at 456. Nor does it define what an ap-
propriate “mix of airmen might be.” Indeed, the SecAF’s
8 The dissent attempts to argue away the govern-
ment’s admission, asserting that “[t]here is simply no rec-
ord evidence to support this finding [of no unusual
circumstances].” Dissent Op. 19. But the government’s ad-
mission that there were no unusual circumstances in
Engle’s personal record is not a factual finding by the court.
It is a concession by the appellee that there were no unu-
sual circumstances, as defined by the regulation.
Case: 18-2038 Document: 39 Page: 22 Filed: 04/09/2020
22 BAUDE v. UNITED STATES
notice does not even characterize its force management ef-
forts as irregular or “unusual.” 9 Appx1005.
In an attempt to justify a finding of “unusual circum-
stances” despite the SecAF’s failure to identify any, the
AFBCMR pulled language from a memorandum submitted
by the Air Force Personnel Center Judge Advocate. The
memorandum stated that “the requirement to add to the
normal force management mix a change in the retirement
window for twice nonselected majors to be selectively con-
tinued does represent an unusual circumstance indicative
of the more drastic measures required at that time.”
SAppx1011. This argument is odd. It merely states that
the need to change the protective window was an “unusual
circumstance.” But that says nothing about what
prompted that need or how it could justify a complete dis-
regard of the regulatory presumption in favor of continua-
tion. Nor do the AFBCMR’s findings. See Appx109, 115.
At most, the AFBCMR generally “adopt[ed]” the Air Force’s
arguments without providing any further explanation
about why the need to reduce manpower gives rise to a
need to prematurely non-continue officers in good stand-
ing. Appx114–15.
Accordingly, even if the SecAF could deviate from the
protective window defined by DoDI 1320.08 in unusual
9 The dissent contends that the SecAF’s failure to
identify an unusual circumstance is not a negative claim,
but rather, “an incomplete record.” Dissent Op. 19. The
dissent insists that the burden lies on Mr. Engle to estab-
lish “prejudicial error.” Dissent Op. 20. But even the gov-
ernment’s own briefing contravenes the dissent’s protests.
The government admits that, with respect to the decision
to non-continue a particular officer, “the plain meaning of
DoDI 1320.08, ¶ 6.3 requires the Secretary to bear the bur-
den to identify ‘unusual circumstances.’” Appellee Supp.
Br. 2. The SecAF did not do so.
Case: 18-2038 Document: 39 Page: 23 Filed: 04/09/2020
BAUDE v. UNITED STATES 23
circumstances, and even if a need for reduction in force
while maintaining a certain mix of airmen could be consid-
ered an unusual circumstance within the meaning of DoDI
1320.08 to justify such a deviation, there is no basis for af-
firming his decision to do so here.
Finally, as discussed to some extent above, we must re-
ject the dissent’s attempts to bolster its reasoning by mak-
ing arguments that the government has not advanced. It
is not the job of the court, the “neutral arbiter,” to raise
questions that are not presented by the parties. Greenlaw
v. U.S., 554 U.S. 237, 244 (2008). “Our adversary system
is designed around the premise that the parties know what
is best for them, and are responsible for advancing the facts
and arguments entitling them to relief.” Castro v. United
States,
540 U.S. 375, 386 (2003) (Scalia, J., concurring in
part and concurring in judgment). 10
We find these sua sponte arguments are unpersuasive
in any event. See supra Sections II.A–C. Neither the plain
text of the regulation, the legislative history, nor the Se-
cAF’s own notice support the SecAF’s decision to modify the
protective threshold stipulated in, or reverse the presump-
tion required by, DoDI 1320.08. The dissent’s contention
that our conclusion “fails to give appropriate weight to this
separation of powers” and “divests the Secretary of the Air
Force of his authority to meet congressionally mandated
end-strength numbers and his discretion to manage the
U.S. Air Force’s work force” are unpersuasive. Dissent Op.
2, 15. There is no dispute that Congress has the power to
mandate end-strength numbers, or that the Air Force has
“wide discretion to manage its workforce,” Allphin v.
United States,
758 F.3d 1336, 1341 (Fed. Cir. 2014). As
10 And, as discussed above, “a foundational principle
of administrative law [is] that a court may uphold agency
action only on the grounds that the agency invoked when
it took the action.” Michigan, 135 S. Ct. at 2710.
Case: 18-2038 Document: 39 Page: 24 Filed: 04/09/2020
24 BAUDE v. UNITED STATES
noted above, the Air Force has “various force management
tools” to help attain Congressionally mandated end-
strength numbers. Appx18. But the SecAF’s use of
DoDI 1320.08 as an alternative “tool” for reducing man-
power was improper because it did not follow the require-
ments of the regulation, and because the SecAF did not
have authority to rewrite the regulation that he violated,
one that emanated from the Secretary of Defense. The
need to reach “congressionally mandated end-strength” is
not an unusual circumstance—under the regulation or oth-
erwise. The government itself concedes this point. Appel-
lee Supp. Br. 18 (“[O]f course the Air Force has had
excessive manpower in the past.”). Our holding does not
limit the broad discretion of the military to manage its
force. It simply stands for the rule that “government offi-
cials must follow their own regulations, even if they were
not compelled to have them at all, and certainly if directed
to promulgate them by Congress.” Voge v. United States,
844 F.2d 776 779 (Fed. Cir. 1988) (citing Service v. dulles,
354 U.S. 363, 388 (1957)). The Air Force had a number of
ways to reduce manpower, this was just not one of them.
D. DoDI’s “Notification” Requirement Does Not
Allow the Secretary of the Air Force
to Non-Continue Officers for Any Reason
Alternatively, the government argues that the last sen-
tence of DoDI 1320.08 ¶ 6.3, which states the Secretary of
a Military Department must notify the USD(P&R) before
non-continuing “larger pools” of officers within six years
from retirement, allows the Secretary to non-continue of-
ficers within six years from retirement for any reason. The
government’s reading renders the rest of the paragraph su-
perfluous. For example, the Secretary’s power to discharge
an officer within six years from retirement in “unusual cir-
cumstances” becomes unnecessary if the next sentence al-
lows him to discharge that same officer for any reason he
chooses. Indeed, the government contends that the ques-
tion of whether unusual circumstances existed is irrelevant
Case: 18-2038 Document: 39 Page: 25 Filed: 04/09/2020
BAUDE v. UNITED STATES 25
for this very reason. See Appellee Supp. Br. 16 (“[E]ven if
the Secretary’s ‘unusual circumstances’ determination was
erroneous, Engle cannot demonstrate prejudicial error, be-
cause DoDI 1320.08 ¶ 6.3 did not require the Secretary
reach such a determination.”); Oral Arg. at 25:55–26:06
(“[The Court:] So, you are saying that the un-usual circum-
stances language is irrelevant . . . [Counsel:] Yes, that is
our primary argument.”).
The government’s argument is not persuasive. The
language governing non-continuance of “larger pools of of-
ficers” stipulates an additional requirement. It is reasona-
ble to assume that, if a department secretary determines
that a large pool of O-4 officers should not be continued—
even though they should normally be continued—the
USD(P&R) would want to be apprised of this abnormality.
Oral Arg. at 38:28–38:52 (“[Counsel for Appellant]: It is en-
tirely reasonable to expect that the Undersecretary of De-
fense for Personnel and Readiness would want to know if
suddenly, a material number—a critical mass—of officers
in a particular military branch were not going to be contin-
ued.”) The “notification” requirement, however, does not
allow the Secretary to depart sub silentio from the prior
rules that apply to each individual officer. The govern-
ment’s interpretation of the regulation “is thus at odds with
one of the most basic interpretive canons:” that a statute or
regulation “should be construed so that effect is given to all
its provisions, so that no part will be inoperative or super-
fluous, void or insignificant . . . .” Corley v. United States,
556 U.S. 303, 314 (2009). The SecAF effectively
“[s]uspend[ed]” Department of Defense regulations in favor
of his own rules. Appx1005. See, e.g.,
Godwin, 338 F.3d at
1379 (“The Coast Guard’s sphere of discretion . . . does not
extend so far that we would ignore [decisions] that are in-
consistent with [its] own regulations.”). It seems that the
final sentence of DoDI 1320.08 is more likely a notification
requirement designed to guard against just what happened
Case: 18-2038 Document: 39 Page: 26 Filed: 04/09/2020
26 BAUDE v. UNITED STATES
here—the use of Continuation Boards for purposes not con-
templated by the regulation.
E. Remaining Issues
Given our finding that the Secretary of the Air Force’s
instructions violated DoDI 1320.08 because the Secretary
of the Air Force lacked the authority to narrow the protec-
tive window or disregard the regulatory presumption in fa-
vor of continuation, we do not reach Engle’s remaining
arguments.
In addition, Engle has requested relief in this case on
behalf of himself and the other plaintiffs from the consoli-
dated Claims Court case. But Engle is not an attorney, so
he cannot represent these other plaintiffs. Federal Circuit
Rule 47.3(a) (“An individual . . . may choose to be repre-
sented by counsel or to represent himself or herself pro se,
but may not be represented by a nonattorney.”). He also
cannot rest his claim for relief on their rights and interests.
See Warth v. Seldin, 422 U.S. 490, 499 (1975) (“[T]his Court
has held that the plaintiff generally must assert his own
legal rights and interests, and cannot rest his claim to re-
lief on the legal rights or interests of third parties.”). 11 We
therefore dismiss the claims of the other officers.
11 There are, of course, important exceptions to this
rule. See, e.g., Kowalski v. Tesmer, 543 U.S. 125, 129–30
(2004); see also Fed. R. Civ. P. 32. But none apply here.
For example, these cases, though consolidated, were nei-
ther asserted nor treated as a class action. See United
States v. Sanchez-Gomez,
138 S. Ct. 1532, 1539 (2018)
(“[C]ourts may not recognize a common-law kind of class
action or create de facto class actions at will.” (internal quo-
tation marks and ellipses omitted).
Case: 18-2038 Document: 39 Page: 27 Filed: 04/09/2020
BAUDE v. UNITED STATES 27
III. CONCLUSION
“It has long been established that government officials
must follow their own regulations.” Voge v. United States,
844 F.2d 776, 779 (Fed. Cir. 1988). The SecAF modified a
regulation that is meant to protect individuals who have
spent most of their lives in service to this country. These
men and women deserve a system that follows its own
rules, and a reviewing forum that does more than rubber-
stamp the actions of military officials.
Engle has demonstrated that the AFBCMR’s decision
is arbitrary, contrary to law, and unsupported by substan-
tial evidence. We therefore vacate the Claims Court’s
grant of the government’s motion for judgment on the ad-
ministrative record, reverse the Claims Court’s denial of
plaintiff’s cross-motion for summary judgment, and re-
mand, with instructions to convene a special board for re-
consideration of Engle’s non-continuation through a
process consistent with the plain meaning of DoDI 1320.08.
See Baude, 137 Fed. Cl. at 446.
DISMISSED-IN-PART, VACATED-IN-PART,
REVERSED-IN-PART, AND REMANDED
COSTS
Costs to appellant.
Case: 18-2038 Document: 39 Page: 28 Filed: 04/09/2020
United States Court of Appeals
for the Federal Circuit
______________________
BRIAN R. BAUDE, JOANNA L. MITCHELL,
RANDALL E. FELTNER, JASON K. HUMPHREY,
JEFFREY W. KERNEKLIAN, DAVID C. KIRKMAN,
KENJI LIGON, KALE M. MOSLEY, RICHARD
PERRON, CHRISTOPHER T. PROTT, ROBERT B.
RUSSELL, STEVEN P. SCHREFFLER, ERIC SUCIU,
JAMES A. TREVINO, JOSEPH WILLIAMS, JR.,
KIRK M. SHAFFER,
Plaintiffs
JASON D. ENGLE,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-2038
______________________
Appeal from the United States Court of Federal Claims
in Nos. 1:16-cv-00049-EJD, 1:16-cv-00051-EJD, 1:16-cv-
00053-EJD, 1:16-cv-00054-EJD, 1:16-cv-00055-EJD, 1:16-
cv-00056-EJD, 1:16-cv-00057-EJD, 1:16-cv-00058-EJD,
1:16-cv-00059-EJD, 1:16-cv-00060-EJD, 1:16-cv-00061-
EJD, 1:16-cv-00062-EJD, 1:16-cv-00063-EJD, 1:16-cv-
00064-EJD, 1:16-cv-00065-EJD, 1:16-cv-00066-EJD, 1:16-
cv-00392-EJD, Senior Judge Edward J. Damich.
______________________
Case: 18-2038 Document: 39 Page: 29 Filed: 04/09/2020
2 BAUDE v. UNITED STATES
WALLACH, Circuit Judge, dissenting.
This case is about the balance between Congress’s
power to “raise and support Armies,” U.S. CONST. art. I,
§ 8, cl. 12, and the judiciary’s authority to “say what the
law is,” Marbury v. Madison, 5 U.S. 137, 177 (1803); see
Fisher v. United States,
402 F.3d 1167, 1177 (Fed. Cir.
2005) (en banc) (“A court may decide whether the military
has complied with procedures set forth in its own regula-
tions[.]”). The Majority, neglecting the former in exercise
of the latter, misreads paragraph 6.3 of Department of De-
fense Instruction (“DoDI”) 1320.08, Continuation of Com-
missioned Officers on Active Duty and on the Reserve Active
Status List (Mar. 14, 2007), and divests the Secretary of the
Air Force (“SecAF”) of his authority to meet congressionally
mandated end-strength numbers and his discretion to
manage the U.S. Air Force’s (“Air Force”) work force. The
Majority opinion is incorrect in substance and pernicious
in effect. The result is a derogation of civilian control of the
military and the good order and discipline of the armed ser-
vices.
Accordingly, I respectfully dissent.
BACKGROUND
I. Statutory Framework
If an Air Force major has “failed of selection for promo-
tion to the next higher grade for the second time” (that is,
“twice-deferred”), the major will, with limited exception,
“be discharged” or, if eligible, “retired” from the Air Force.
10 U.S.C. § 632(a)(1), (2). A twice-deferred major may re-
main in active service if he or she is selected for continua-
tion of service by a selective continuation board. See id.
§ 611(b); see also
id. § 637. If a twice-deferred major “is
within two years of qualifying for retirement[,]” then the
selective continuation board must continue him or her on
active duty “until he [or she] is qualified for retirement.”
Id. § 632(a)(3); see
id. § 637(a)(5). If a twice-deferred major
Case: 18-2038 Document: 39 Page: 30 Filed: 04/09/2020
BAUDE v. UNITED STATES 3
is not within two years of retirement, the SecAF retains
discretion over the continuation decision.
Id. § 637(c)
(“Continuation of an officer on active duty under [§ 637]
pursuant to the action of a selection board convened under
[§] 611(b) . . . is subject to the approval of the Secretary of
the military department concerned.”). Majors not selected
for continuation are “discharged” or “retired.”
Id.
§ 632(a)(1), (2).
The Secretary of Defense promulgated DoDI 1320.08
pursuant to, inter alia, §§ 611(c) and 637(e). DoDI 1320.08.
The SecAF “may, when the needs of the [Air Force] require,
convene continuation selection boards according to
[§] 611(b).” Id. ¶ 6.3. The continuation selection board
“shall normally” continue a major who may otherwise be
discharged, if that officer “will qualify for retire-
ment . . . within [six] years of the date of continuation.”
Id.
The SecAF “may, in unusual circumstances such as when
an officer’s official personnel record contains derogatory in-
formation, discharge an officer involuntarily in accordance
with [§] 632.”
Id. If the SecAF “intends not to continue
larger pools of officers . . . who would qualify for retirement
within [six] years,” the SecAF “shall notify the [Depart-
ment of Defense Undersecretary for Defense for Personnel
and Readiness (‘USD(P&R)’)] of the proposed course of ac-
tion.”
Id.
II. Relevant Procedural History
In November 2010, the Air Force briefed the
USD(P&R) “on a number of planned measures to reduce
officer numbers which included limiting selective continu-
ation of various officers” in order to meet congressionally
Case: 18-2038 Document: 39 Page: 31 Filed: 04/09/2020
4 BAUDE v. UNITED STATES
mandated end-strength 1 numbers for that fiscal year. 2
SAppx 105; see Ike Skelton National Defense Authorization
Act for Fiscal Year 2011 (“NDAA FY11”), Pub. L. No. 111-
383, § 401, 124 Stat. 4137, 4202 (2011); SAppx 129 (provid-
ing the mandated end-strength numbers for the Air Force
for Fiscal Year 2011). In December 2010, the SecAF noti-
fied the USD(P&R) that, in furtherance of the Air Force’s
ongoing “efforts to manage [its] officer corps and bring [the
Air Force] within congressionally mandated end-strength,
[he] intend[ed] to exercise [his] authority contained in
DoDI 1320.08 ¶ 6.3 to not selectively continue large pools
of twice-deferred [majors] . . . who would otherwise qualify
for retirement within [six] years.” Appx 1005. The
USD(P&R) acknowledged receipt. SAppx 105. The Air
Force briefed “[c]ongressional subcommittee professional
staff members” on the plan in January 2011. SAppx 105.
The Air Force again briefed the USD(P&R) “on the final
plan” at the end of January 2011. SAppx 105.
In March 2011, Appellant Jason Engle, then a major in
the Air Force, was passed over for a promotion to lieuten-
ant colonel for the second time. See Baude v. United States,
137 Fed. Cl. 441, 445 (2018). 3 A selective continuation
1 “End-strength” is “the maximum number of per-
sonnel each of the military services is authorized to have
on the last day of the fiscal year.” SAppx 147 (citation omit-
ted).
“SAppx” refers to the supplemental appendices at-
tached to the Government’s informal brief and supple-
mental brief. “Appx” refers to the appendices attached to
Mr. Engle’s informal brief and supplemental brief.
2 The Federal fiscal year begins on October 1 of the
previous calendar year. See 2 U.S.C. § 602(e).
3 Because this is an appeal from a consolidated case,
the administrative record is not specific to Mr. Engle, but
rather to the lead plaintiff in the case below. See Baude,
Case: 18-2038 Document: 39 Page: 32 Filed: 04/09/2020
BAUDE v. UNITED STATES 5
board (“the Selective Continuation Board”) was convened
to consider multiple officers, including Mr. Engle, for con-
tinuation to retirement eligibility. Id. The SecAF in-
structed the Selective Continuation Board to continue
majors “who [would] qualify for retirement within five
years of the convening date of the [Selective Continuation
Board].” Appx 33. Mr. Engle was within six years of re-
tirement.
Baude, 137 Fed. Cl. at 445. The Selective Con-
tinuation Board declined to recommend 157 out of 245
individuals, including Mr. Engle, for continuation. See
id.
The SecAF approved the Selective Continuation Board’s
determination, and Mr. Engle and the other 156 majors
were involuntarily discharged.
Id. The Air Force again
briefed congressional subcommittee professional staff
members in March and May 2011. SAppx 147.
In 2013, sixteen of the 157 majors, including Mr. Engle,
(collectively, “Petitioners”), applied separately to the Air
Force Board for Correction of Military Records
(“AFBCMR”) to convene a special board to correct their mil-
itary records under 10 U.S.C. § 1558. Baude, 137 Fed. Cl.
at 445; SAppx 104; see 10 U.S.C. § 1558 (providing for the
“[r]eview of actions of selection boards”). They asked to be
reinstated to active duty or, alternatively, granted pro-
rated retirement. SAppx 102. They argued that the SecAF
had “violated [DoDI] 1320.08” by “erroneously applying” a
continuation eligibility window of five rather than six years
to retirement. SAppx 102. The AFBCMR denied the ap-
plications, finding “no basis to grant any of the relief re-
quested.” SAppx
116.
137 Fed. Cl. at 445 (explaining that “Major Brian R.
Baude . . . was the first to file his complaint” and that his
case was subsequently “consolidate[d] [with] fifteen other
cases as they involved the same common questions of fact
and law,” among them, Mr. Engle’s).
Case: 18-2038 Document: 39 Page: 33 Filed: 04/09/2020
6 BAUDE v. UNITED STATES
Mr. Engle and the other Petitioners then filed separate
appeals in the U.S. Court of Federal Claims, and their
cases were consolidated. Baude, 137 Fed. Cl. at 445. The
Court of Federal Claims remanded the consolidated case to
the AFBCMR, to consider the Petitioners’ request for spe-
cial boards.
Id. at 446. On remand, the AFBCMR con-
cluded that there was “no basis to grant [Petitioners]
consideration by a special board.” SAppx 135. The Peti-
tioners then moved to supplement the administrative rec-
ord before the Court of Federal Claims. Baude, 137 Fed.
Cl. at 445. Petitioners sought to compel the Government to
supplement the administrative record with, inter alia, “de-
tails (copies of the brief provided, briefing materials, tran-
scripts, and any and all correspondence) of the information
SecAF briefed to the USD(P&R) [in January 2011] regard-
ing SecAF’s intent to not selectively continue certain offic-
ers”; “details (copies of the brief provided, briefing
materials, transcripts, and any and all correspondence) of
the information the Air Force briefed to USD(P&R) and
[c]ongressional subcommittee staff members on January
12, 13, and 24, 2011 regarding SecAF’s intent to not selec-
tively continue certain officers”; and “details (copies of the
brief provided, briefing materials, transcripts, and any and
all correspondence) of the information the Air Force briefed
to [c]ongressional subcommittee staff members on March
17, 2011[,] and May 11, 2011[,] regarding SecAF’s intent to
not selectively continue certain officers.” SAppx 147. The
Court of Federal Claims denied Petitioners’ motion, ex-
plaining that Petitioners’ requested “‘details’ [were] di-
rected to the [non-justiciable] merits of the Air Force’s
decision as to whether or not it should have reduced its
end-strength and how it should have reduced its end-
strength” and “that despite being before the [AFBCMR]
twice, [Petitioners] failed to identify that this evidence was
missing during review and, therefore, waived its supple-
mentation rights.” SAppx 149 (emphasis in original).
Case: 18-2038 Document: 39 Page: 34 Filed: 04/09/2020
BAUDE v. UNITED STATES 7
Petitioners and the Government then filed cross-mo-
tions for judgment on the administrative record in the
Court of Federal Claims. Baude, 137 Fed. Cl. at 445. In
granting the Government’s motion, the Court of Federal
Claims determined that the SecAF “did possess the discre-
tion not to continue a major,” and that “there was an unu-
sual circumstance that triggered [the SecAF’s] authority”
under DoDI 1320.08.
Id. at 455–56.
DISCUSSION
The Majority concludes that “[t]he SecAF’s instructions
to the Selective Continuation Board directly violated
DoDI 1320.08,” Maj. Op. 14, because DoDI 1320.08 ¶ 6.3
requires that the SecAF “continue [an] officer [within six
years of retirement] unless there is” an individualized “un-
usual circumstance” to justify non-continuation, “e.g., de-
rogatory information in their personnel file,” id. at 5; see
id.
at 17–20. The Majority then finds that there were no indi-
vidual “unusual circumstances” to merit Mr. Engle’s non-
continuation, and that, even if non-individualized “unusual
circumstances” could justify narrowing eligibility criteria
“there simply were no ‘unusual circumstances’ identified
here.”
Id. at 20–21.
The Majority opinion suffers from two critical defects.
First, the Majority misreads DoDI 1320.08 ¶ 6.3. Second,
the Majority overreaches our standard of review to find
facts not on the record.
I. The Majority Misconstrues DoDI 1320.08
A. The Majority Misreads the Plain Language of
DoDI 1320.08 ¶ 6.3
“We construe a regulation in the same manner as we
construe a statute[.]” Tesoro Haw. Corp. v. United States,
405 F.3d 1339, 1346 (Fed. Cir. 2005). We first consider “its
plain language” and “terms in accordance with their com-
mon meaning.” Lockheed Corp. v. Widnall,
113 F.3d 1225,
1227 (Fed. Cir. 1997). “In doing so, the court considers the
Case: 18-2038 Document: 39 Page: 35 Filed: 04/09/2020
8 BAUDE v. UNITED STATES
text of the regulation as a whole, reconciling the section in
question with sections related to it.” Mass. Mut. Life Ins.
Co. v. United States,
782 F.3d 1354, 1365 (Fed. Cir. 2015)
(internal quotation marks and citation omitted). If the reg-
ulation contains “clear and unambiguous” terms, “then no
further inquiry is usually required.”
Id.
We begin with the language of the regulation itself.
DoDI 1320.08 provides that a twice-deferred major “shall
normally be selected for continuation” if the officer is
“within [six] years” of retirement on “the date of continua-
tion.” DoDI 1320.08 ¶ 6.3. The Majority concludes that the
phrase “shall normally” creates a “presumption,” Maj.
Op. 15, under which the SecAF must “continue [an] officer
[within six years of retirement] unless there is a reason not
to do so,”
id. at 20. The Majority says that “applying this
presumption is mandatory, even if continuation is not.”
Id.
at 15. This erroneously reads “normally” out of the regula-
tion. See TRW Inc. v. Andrews,
534 U.S. 19, 31 (2001) (ex-
plaining a “cardinal principal of statutory construction that
a statute” or regulation is read so that “no clause, sentence,
or word shall be superfluous, void, or insignificant” (inter-
nal quotation marks and citation omitted)); King v. St. Vin-
cent’s Hosp.,
502 U.S. 215, 221 (1991) (“Words are not
pebbles in alien juxtaposition.” (quoting NLRB v. Feder-
bush Co.,
121 F.2d 954, 957 (2d Cir. 1941) (L. Hand, J.))).
While use of the word “shall,” by itself, is generally manda-
tory, Lexecon Inc. v. Milberg Weiss Bershad Hynes & Ler-
ach,
523 U.S. 26, 35 (1998) (explaining that “shall”
generally creates “an obligation impervious to judicial dis-
cretion” (citation omitted)), “shall normally” is permissive,
see, e.g., SKF USA Inc. v. United States,
630 F.3d 1365,
1371 (Fed. Cir. 2011) (explaining that statutory language
providing that an agency “shall normally” use a specified
methodology “does not mandate” use of that methodology);
Am. Silicon Techs. v. United States,
261 F.3d 1371, 1377
(Fed. Cir. 2001) (interpreting the phrase “shall normally”
as providing “a general,” not mandatory, “rule,” leaving
Case: 18-2038 Document: 39 Page: 36 Filed: 04/09/2020
BAUDE v. UNITED STATES 9
choice of methodology within the reasonable discretion of
the agency). Accordingly, “shall normally” conveys the Se-
cAF’s discretion to set the criteria for continuation—it cre-
ates a norm and provides the discretion to deviate from
that norm. See Kingdomware Techs., Inc. v. United States,
136 S. Ct. 1969, 1977 (2016) (explaining that permissive
language “implies discretion”); see also 10 U.S.C. § 637(c)
(providing that continuation is “subject to the approval of
the [SecAF]”); Maier v. Orr,
754 F.2d 973, 984 (Fed. Cir.
1985) (“The Air Force is entitled to discharge an officer on
grounds rationally related to the standards of fitness for
retention in that branch of the service.” (citation omitted)). 4
Next, DoDI 1320.08 provides that, even if an officer
otherwise meets the criteria for continuation, the SecAF
“may, in unusual circumstances such as when an officer’s
official personnel record contains derogatory information,
discharge an officer involuntarily in accordance with
4 This discretion is confirmed in other parts of DoDI
1320.08. Specifically, the SecAF has discretion to set the
length of the period of continuation. 10 U.S.C. § 637(a)(5)
(providing guaranteed continuation only for officers
“within two years of qualifying for retirement”);
DoDI 1320.08 ¶¶ 6.3.1–2 (setting express limits, “Mini-
mum” and “Maximum Continuation Period[s],” thereby ac-
knowledging the SecAF’s discretion to act within those
limits); Air Force Instruction (“AFI”) 36-2501, Officer Pro-
motion and Selective Continuation (July 16, 2004),
https://static.e-publishing.af.mil/production/1/af_a1/publi-
cation/afi36-2501/afi36-2501.pdf at ¶¶ 7.9 (providing that
“[b]ased on the needs of the Air Force, [the] SecAF deter-
mines [continuation] eligibility criteria”), 7.11.1 (“The Se-
cAF determines the actual length of the continuation
period.”), 7.18 (“The period of continuation on active duty
may be reduced by the SecAF due to subsequent changes
in the ‘critical skill needs’ of the Air Force.”).
Case: 18-2038 Document: 39 Page: 37 Filed: 04/09/2020
10 BAUDE v. UNITED STATES
[§] 632.” DoDI 1320.08 ¶ 6.3. From this, the Majority con-
cludes that the SecAF must find “unusual circumstances”
to not continue an officer and that the “unusual circum-
stances” must “relate to the individual officer’s circum-
stances.” Maj. Op. 18. This reading, however, fails to
consider regulatory and statutory context. See Mass. Mut.
Life Ins., 782 F.3d at 1365. DoDI 1320.08 ¶ 6.3’s “unusual
circumstances” clause does not divest the SecAF of his dis-
cretion to set continuation eligibility criteria according to
the needs of the service. See 10 U.S.C. § 637(a)(1) (provid-
ing that continuation is “subject to the needs of the ser-
vice”); DoDI 1320.08 ¶ 6.3 (providing that the SecAF “shall
normally” continue officers within six years of retirement).
Rather, it establishes that an officer who otherwise meets
the continuation eligibility criteria, as set by the SecAF,
may be involuntarily discharged, rather than retired or
continued, in “unusual circumstances.” DoDI 1320.08
¶ 6.3; see 10 U.S.C. § 632(a)(1), (2) (providing that an officer
not selected for continuation may be “discharged” or, if eli-
gible, “retired”); SAppx 1001 (Air Force Selective Continu-
ation Fact Sheet) (explaining that “those individuals
meeting the continuation eligibility criteria will be consid-
ered” by the selective continuation board” and “[r]ecords
which contain . . . derogatory information may warrant a
‘not fully qualified’ determination”).
Further, even if this language did require the SecAF to
find “unusual circumstances” before changing continuation
eligibility criteria, nothing in the language of DoDI 1320.08
or relevant statutes limits those “unusual circumstances”
to individual “derogatory information.” DoDI 1320.08
¶ 6.3. The Majority provides that “[t]he law is clear that,
when interpreting statutes or regulations, the provided ex-
ample, while not always deemed exclusive, indicates the
character of the circumstances to be considered.” Maj.
Op. 18. “The law,” however, is not so absolute—ejusdem
generis and noscitur a sociis cannot “be resorted to” in order
“to obscure and defeat the intent and purpose of Congress.”
Case: 18-2038 Document: 39 Page: 38 Filed: 04/09/2020
BAUDE v. UNITED STATES 11
United States v. Alpers, 338 U.S. 680, 682 (1950) (citation
omitted); see Gustafson v. Alloyd Co.,
513 U.S. 561, 575
(1995) (providing that we rely on “the doctrine of noscitur
a sociis . . . to avoid ascribing to one word a meaning so
broad that it is inconsistent with its accompanying words,
thus giving unintended breadth to the Acts of Congress”).
Here, when enacting 10 U.S.C. § 637, Congress expressly
“intended” for selective continuation “to be used sparingly
and . . . primarily [as] a means of reducing the numbers in
senior [officer] grades when necessary, such as during a re-
duction in force.” H.R. REP. No. 96–1462, at 27 (1980); see
S. REP. No. 96–375, at 81 (1979) (similar). Congress’s ex-
press purpose was to create a force management tool re-
sponsive to congressionally mandated end-strength
numbers. See H.R. REP. No. 96–1462 at 27 (“With the elim-
ination of the temporary promotion system, some provision
for forced separation is required. Otherwise there would
be no method of thinning the force at senior grades during
a reduction in force.”). Reading “unusual circumstances”
so narrowly as to defeat this intent and purpose, based on
a single, non-exclusive example, is an error. See Christo-
pher v. SmithKline Beecham Corp.,
567 U.S. 142, 163
(2012) (declining to apply “the rule of ejusdem generis” to
“defeat Congress’ intent”); Ali v. Fed. Bureau of Prisons,
552 U.S. 214, 225 (2008) (explaining that “[t]he absence of
a list of specific items undercuts the inference embodied in
ejusdem generis [and noscitur a sociis] that [the drafter] re-
mained focused on the common attribute when it used the
catchall phrase”).
Last, DoDI 1320.08 provides that when the SecAF “in-
tends not to continue larger pools of officers . . . who would
qualify for retirement within [six] years of the date of a con-
tinuation, the [SecAF] shall notify the USD(P&R) of the
proposed course of action.” DoDI 1320.08 ¶ 6.3. By its
plain and ordinary language, the SecAF has the authority
and discretion to not continue “larger pools of officers” even
if they would otherwise “qualify for retirement within [six]
Case: 18-2038 Document: 39 Page: 39 Filed: 04/09/2020
12 BAUDE v. UNITED STATES
years.” Id. The Majority’s “individualized decision” re-
quirement presumes that there are “larger pools” of senior
officers with derogatory or similar information on their rec-
ord waiting to be non-continued. The simpler, more realis-
tic, explanation is that the SecAF may, when the needs of
the service require, not continue larger pools of officers, in
keeping with his discretion and authority. See 10 U.S.C.
§ 637(a)(5) (providing guaranteed continuation only for of-
ficers “within two years of qualifying for retirement”); Bee-
cham v. United States,
511 U.S. 368, 372 (1994) (“The plain
meaning that we seek to discern is the plain meaning of the
whole [regulation or] statute, not of isolated sentences.”). 5
Therefore, DoDI 1320.08 ¶ 6.3 accords the SecAF the dis-
cretion to set continuation eligibility criteria, to not con-
tinue an officer even if he or she meets that criteria in
unusual circumstances, and to not continue large numbers
of officers within six years of retirement. See Lengerich v.
Dep’t of Interior,
454 F.3d 1367, 1370 (Fed. Cir. 2006)
(“[W]e examine the text of the regulation as a whole, recon-
ciling the section in question with sections related to it.”).
B. The Majority’s Reading of DoDI 1320.08 ¶ 6.3 Is Con-
trary to Statute and Congressional Intent
The Majority’s conclusion that the SecAF does not have
the discretion to set continuation eligibility criteria is in
substantial tension with DoDI 1320.08’s enabling statute
and congressional intent. Congress provided that selective
continuation is “subject to the needs of the service,” 10
U.S.C. § 637(a)(1), and “subject to the approval of the [Se-
cAF],” id. § 637(c), with guaranteed continuation only for
officers “within two years of qualifying for retirement,”
id.
§ 637(a)(5). In enacting such legislation, Congress sought
to “[s]tandardize officer-promotion procedures among the
5 Mr. Engle does not contest that “the SecAF had the
authority to not continue large pools of majors within six
years of retirement[.]” Appellant’s Supp. Br. 1 n.1.
Case: 18-2038 Document: 39 Page: 40 Filed: 04/09/2020
BAUDE v. UNITED STATES 13
service” and to “tighten[] up the allowances on the number
of officers in the higher grades.” 126 CONG. REC. H29,886
(Nov. 17, 1980) (statement of Rep. Mitchell). Congress ex-
pressly “intended” for the SecAF’s selective continuation
authority “to be used sparingly and . . . primarily [as] a
means of reducing the numbers in senior [officer] grades
when necessary, such as during a reduction in force.” H.R.
REP. No. 96–1462, at 27 (1980); see S. REP. No. 96–375, at
81 (1979) (similar); see also 126 CONG. REC. H29,886 (Nov.
17, 1980) (statement of Rep. Mitchell) (“It is the commit-
tee’s strong desire that [majors] be continued to [a stand-
ardized] 20 years of service as a matter of course; only in
unusual circumstances would this authority not be fully
utilized.”). This demonstrates that the SecAF has the au-
thority to use selective continuation, as necessary, for re-
ductions in force—not just for the removal of senior officers
with derogatory information on their record. 6 It further
shows that the SecAF has the discretion to determine who,
outside the congressionally mandated two-year protective
window, may be continued, according to the needs of the
service. 7 The Secretary of Defense is charged with
6 Department of Defense regulation and policy re-
flects this understanding. See DoDI 1320.08 ¶¶ 4 (“It is
[Department of Defense] policy to retain competent and ef-
fective commissioned officers through the selective contin-
uation process as a cost-effective means of satisfying skill
needs in the Military Services.”), 5.2.1 (providing that the
“Secretaries of the Military Departments shall” “[a]dminis-
ter the policy and procedures prescribe [in DoDI 1320.08]”),
5.2.3 (providing that the “Secretaries of the Military De-
partments shall” “[c]onvene continuation selection boards
based on the needs of the Military Service concerned for
continuation of officers on the Active Duty List”).
7 Air Force regulation and policy reflects this under-
standing. AFI 36-2501 at ¶¶ 7.9 (providing that “[b]ased
on the needs of the Air Force, [the SecAF] determines
Case: 18-2038 Document: 39 Page: 41 Filed: 04/09/2020
14 BAUDE v. UNITED STATES
“prescribing regulations for the administration of [10
U.S.C. § 637],” 10 U.S.C. § 637(e), however, those regula-
tions cannot be contrary to the express intent of Congress,
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837, 842–43 (1984) (“If the intent of Congress is clear,
that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed
intent of Congress.”); see Cuozzo Speed Techs., LLC v. Lee,
136 S. Ct. 2131, 2142 (2016) (explaining that, to the extent
Congress grants authority to promulgate regulations,
those regulations must be “reasonable in light of the text,
nature, and purpose of the statute”).
C. The Majority’s Reading of DoDI 1320.08 ¶ 6.3 Under-
mines the Separation of Powers and Civilian Control of
the Military
Preserving the SecAF’s authority and discretion to use
selective continuation within statutory and regulatory
bounds is important because the SecAF must be able to
meet congressionally mandated end-strength numbers.
Article I of the Constitution gives Congress the power to
“raise and support Armies,” U.S. CONST. art. I, § 8, cl. 12,
and “provide and maintain a Navy,” id. art. I, § 8, cl. 13.
[continuation] eligibility criteria”), 7.10 (“All officers rec-
ommended for continuation must meet a selective continu-
ation board that will ultimately be forwarded to [the]
SecAF for final approval”); Appx 1001 (Air Force Selective
Continuation Fact Sheet) (explaining that “[s]elective con-
tinuation allows the Air Force, as determined by the [Se-
cAF], to retain twice-deferred officers in critical skills for a
length of time determined by the [SecAF]”); Appx 1001
(providing that the “SecAF determines the selective contin-
uation eligibility criteria” and that it may “change from
board to board based on current and projected needs of the
Air Force”); Appx 1001 (providing that the “worst case sce-
nario” is that “continuation is not offered to anyone”).
Case: 18-2038 Document: 39 Page: 42 Filed: 04/09/2020
BAUDE v. UNITED STATES 15
Each fiscal year, Congress “authorizes appropriations . . .
for military activities of the Department of Defense,” to, in-
ter alia, “prescribe military personnel strengths for [that]
fiscal year.” NDAA FY11, 124 Stat. at 4137. Neither the
Secretary of Defense nor the SecAF has the authority to
“make or authorize an expenditure or obligation exceeding
an amount available in an appropriation or fund for the ex-
penditure or obligation.” 31 U.S.C. § 1341(a)(1)(A); see
Appx 1006–07 (Air Force Policy Directive 36-32, Military
Retirements and Separations (July 14, 1993)) (“[T]he Air
Force must be able to meet personnel strength levels estab-
lished in law.”). Congress’s power to mandate end-strength
numbers is central to civilian control of the military. See
THE FEDERALIST NO. 41, at 225 (James Madison) (E.H.
Scott ed., 1898) (“A standing force . . . is a dangerous, at the
same time that it may be a necessary, provision. . . . A wise
nation will combine all these considerations; and, whilst it
does not rashly preclude itself from any resource which
may become essential to its safety, will exert all its pru-
dence in diminishing both the necessity and the danger of
resorting to one which may be inauspicious to its liber-
ties.”). “[J]udicial deference to . . . congressional exercise of
authority is at its apogee when legislative action under the
congressional authority to raise and support armies and
make rules and regulations for their governance is chal-
lenged.” Rostker v. Goldberg,
453 U.S. 57, 70 (1981).
Further, the “composition of [military] forces” is
“within the purview of the Congress and the military.”
Maier, 754 F.2d at 980. “Subject to the authority, direction,
and control of the Secretary of Defense,” the SecAF “is re-
sponsible for, and has the authority necessary to conduct,
all affairs of the Department of the Air Force, including,”
“organizing,” “supplying,” “equipping,” “administering,”
and “maintaining” that force. 10 U.S.C. § 8013(b). “The
complex subtle, and professional decisions as to the compo-
sition, training, equipping, and control of a military force
are essentially professional military judgments,
Case: 18-2038 Document: 39 Page: 43 Filed: 04/09/2020
16 BAUDE v. UNITED STATES
subject always to civilian control of the Legislative and Ex-
ecutive Branches.” Gilligan v. Morgan,
413 U.S. 1, 10
(1973) (emphasis in original)). It is well “settled that re-
sponsibility for determining who is fit or unfit to serve in
the armed services is not a judicial province.” Heisig v.
United States,
719 F.2d 1153, 1156 (Fed. Cir. 1983).
The Majority “fail[s] to give appropriate weight to this
separation of powers,” Gilligan, 413 U.S. at 11, and the
“wide discretion [of the SecAF] to manage [the Air Force’s]
workforce,” Allphin v. United States,
758 F.3d 1336, 1341
(Fed. Cir. 2014). Instead, the Majority’s reading of
DoDI 1320.08 ¶ 6.3 effectively gives the Secretary of De-
fense the means to make an end run around Congression-
ally mandated end-strength numbers, by giving the
Secretary of Defense the authority to create an entitlement
to continued employment in the military. See Maj. Op. 5
(explaining that the SecAF “must continue” an officer
within the Secretary of Defense’s prescribed protective
window absent “reason not to,” such as “derogatory infor-
mation in [his or her] personnel file”). This is contrary to
the “power of oversight and control of military force by
elected representatives and officials” that “underlies our
entire constitutional system[.]”
Gilligan, 413 U.S. at 11.
This is unquestionably in derogation of the good order and
discipline of the armed services. See Chappell v. Wallace,
462 U.S. 296, 300 (1983) (“In the civilian life of a democracy
many command few; in the military, however, this is re-
versed, for military necessity makes demands on its per-
sonnel without counterpart in civilian life.” (internal
quotation marks and citations omitted)). There is no right
to remain in the military, see
Maier, 754 F.2d at 980 (“No
one has an individual right, constitutional or otherwise, to
enlist in the armed forces[.]”), and no “liberty or property
interest” attached to an honorable discharge “sufficient to
invoke due process rights to notice and a hearing,”
Allphin,
758 F.3d at 1343. To the extent that an individual has any
property interest, it is only a “reasonable expectation” in
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BAUDE v. UNITED STATES 17
continued employment—there is no reasonable expectation
that an officer who does not meet the basic requirements
and standards set by the SecAF for continued employment
will be selected for continuation. See Bd. of Regents of State
Colleges v. Roth,
408 U.S. 564, 577 (1972) (“To have a prop-
erty interest in a benefit, a person clearly must have more
than an abstract need or desire for it. He must have more
than a unilateral expectation of it. He must, instead, have
a legitimate claim of entitlement to it.”). 8
8 The Majority faults this Dissent for considering rel-
evant legislative history and pointing out the constitu-
tional implications of the Majority’s opinion. See Maj. Op.
19 (characterizing this Dissent’s consideration of legisla-
tive history in regulatory and statutory interpretation as
“[a]dvancing new arguments on behalf of the [G]overn-
ment”), 23 (rejecting this Dissent’s consideration of the con-
stitutional implications of the Majority’s opinion as
“attempts to bolster its reasoning with arguments that the
[G]overnment has not advanced”). The Majority misappre-
hends the nature of our judicial process. Our role is to “de-
cide all relevant questions of law” and “interpret
constitutional and statutory provisions” not just “when” or
as “presented,” but “[t]o the extent necessary to [the] deci-
sion[.]” 5 U.S.C. § 706. Whatever the Government may ar-
gue, it cannot obviate our “province and duty . . . to say
what the law is.” Marbury, 5 U.S. at 177–78; see Kisor v.
Wilkie,
139 S. Ct. 2400, 2414 (2019) (explaining that a court
must “resort[] to all the standard tools of interpretation”
when determining whether a regulation is “genuinely am-
biguous”). Judges are not advocates. We do not “advance”
arguments on behalf of the parties. Our duty is to follow
the law as we comprehend it.
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18 BAUDE v. UNITED STATES
II. The Majority Overreaches Our Standard of Review to
Find Facts Not on the Record
Having misread DoDI 1320.08, the Majority then finds
that “even if the SecAF had the authority to declare any
circumstance to be sufficiently unusual to justify rewriting
other aspects of the regulation . . . there simply were no
‘unusual circumstances’ identified here.” Maj. Op. 20. Spe-
cifically, the Majority finds, first, that “there were no ‘unu-
sual circumstances’ akin to derogatory information in [Mr.]
Engle’s file that would have justified his non-continuation,”
id., and second, that the SecAF found no broader unusual
circumstances because neither “[t]he SecAF’s notice to the
USD(P&R),” nor his “memorandum of instructions” to the
selective continuation board “mention[s] . . . unusual cir-
cumstances of any kind,”
id. (citing Appx 1005; Appx 33).
In so doing, the Majority overreaches our standard of re-
view.
“We review a decision of the Court of Federal Claims
granting or denying a motion for judgment on the adminis-
trative record without deference.” Barnick v. United
States, 591 F.3d 1372, 1377 (Fed. Cir. 2010) (citation omit-
ted). As such, “we apply the same standard of review” as
the Court of Federal Claims, and “will not disturb the deci-
sion of the AFBCMR unless it is arbitrary, capricious, con-
trary to law, or unsupported by substantial evidence.”
Id.
(citation omitted).
First, the Majority finds, based on what it says is a
Government concession, that “there were no ‘unusual cir-
cumstances’ akin to derogatory information in [Mr.]
Engle’s file that would have justified his non-continuation.”
Maj. Op. 20 (citing Oral Arg. at 20:42–51, http://oralargu-
ments.cafc.uscourts.gov/default.aspx?fl=2018-2038.mp3
(“We are unaware of any derogatory information or any de-
cision regarding [Mr.] Engle that was personal in nature,
that is not what the record here shows.”)); see
id. 8 (stating
that, if the SecAF had not changed the continuation
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BAUDE v. UNITED STATES 19
criteria Mr. Engle “almost certainly would have been con-
tinued”). This may be true; however, such a finding is im-
proper and outside our role on appeal. See Camp v. Pitts,
411 U.S. 138, 142 (1973) (“[T]he focal point for judicial re-
view should be the administrative record already in exist-
ence, not some new record made initially in the reviewing
court.”). There is simply no record evidence to support this
finding. This is unsurprising: “The proceedings of a selec-
tion board convened under [10 U.S.C. § 611] may not be
disclosed to any person not a member of the board, except
as authorized to process the report of the board.” 10 U.S.C.
§ 613a(a).
Second, the Majority finds that the “SecAF fail[ed] to
identify any [unusual circumstance]” in his notice to the
USD(P&R) or instructions to the selective continuation
board, rendering the AFBCMR’s affirmance unsupported
by substantial evidence and the Government’s arguments
post-hoc rationalizations. Maj. Op. 22; see SAppx 115
(AFBCMR concluding that Petitioners had submitted “in-
sufficient relevant evidence” to “demonstrate . . . an error
or injustice” and that “the explanation provided by [the Air
Force] that the [SecAF] had a reasonable basis to pursue
the course of action he determined necessary”). The Major-
ity concludes that this “alone should end the inquiry.” Maj.
Op. 21 (citing SEC v. Chenery Corp., 318 U.S. 80, 81
(1943)). The Majority mistakes an incomplete record for
definitive proof of a negative claim. Specifically, before the
Court of Federal Claims, Mr. Engle and the other Petition-
ers sought to compel the Government to supplement the
administrative record with the evidence the Majority now
seeks. See SAppx 147 (summarizing Petitioners’ request
that the Government “[p]rovide details . . . of the infor-
mation [the] SecAF briefed to the [USD(P&R)] on Janu-
ary 24, 2011[,] regarding the SecAF’s intent to not
selectively continue certain officers,” “of the information
the Air Force briefed to [the] USD(P&R) and [c]ongres-
sional subcommittee staff members on January 12, 13, and
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20 BAUDE v. UNITED STATES
24, 2011[,] regarding [the] SecAF’s intent to not continue
certain officers,” and “of the information the Air Force
briefed to [c]ongressional subcommittee staff members on
March 17, 2011[,] and May 11, 2011[,] regarding the Se-
cAF’s intent to not selectively continue certain officers,” in-
cluding “copies of the brief[s] provided, briefing materials,
transcripts, and any and all correspondence”). The Court
of Federal Claims, however, denied this request, because
Mr. Engle and the other Petitioners had “waived [their]
supplementation rights” by failing to “identify this evi-
dence [as] missing during [administrative] review,” despite
having been before the [AFBCMR] twice.” SAppx 149. Mr.
Engle does not contest this determination, see generally
Appellant’s Br; Appellant’s Supp. Br., nor does the Major-
ity address it, see generally Maj. Op. It is, therefore, undis-
puted that the Court of Federal Claims acted within its
discretion when it denied Mr. Engle and other Petitioners’
request. See
Barnick, 591 F.3d at 1382 (“[We] review[] ev-
identiary rulings [of the Court of Federal Claims] under an
abuse of discretion standard.” (citation omitted));
id. at
1382 (“[W]here evidence could have been submitted to a
corrections board and was not, the evidence is properly ex-
cluded by the Court of Federal Claims.” (citation omit-
ted)). 9
Before the Court of Federal Claims, the burden was on
Mr. Engle to establish “prejudicial error.” 5 U.S.C. § 706;
see 10 U.S.C. § 1558(f)(2). He did not. Rather, he conceded
that the “SecAF was only required to notify [the]
USD(P&R) of his intent to [not selectively continue larger
9 Even if such details of the SecAF’s decision were on
the record, it is unclear what the Majority could do with
them. See Adkins v. United States, 68 F.3d 1317, 1322
(Fed. Cir. 1995) (“The merits of a service secretary’s deci-
sion regarding military affairs are unquestionably beyond
the competence of the judiciary to review.”).
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BAUDE v. UNITED STATES 21
pools of officers].” SAppx 150. He nonetheless now argues
this absence of evidence to his advantage. See Appellant’s
Supp. Br. 7 (arguing that the “SecAF did not purport to
identify any ‘unusual circumstances’ justifying the six-to-
five-year change when making the determination not to se-
lectively continue Mr. Engle,” and “[t]hat failure alone is
error that requires reversal[.]”). His argument, in addition
to being improper, is without merit. See Dodson v. U.S.
Gov’t, Dep’t of Army,
988 F.2d 1199, 1204 (Fed. Cir. 1993)
(“[M]ilitary administrators are presumed to act lawfully
and in good faith like other public officers, and the military
is entitled to substantial deference in the governance of its
affairs.”); see also Biddle v. United States,
186 Ct. Cl. 87,
104 (1968) (providing for a “presumption in favor of the va-
lidity” of official military acts, such that “in the absence of
any evidence to the contrary, it must be presumed that the
[secretary] performed [his] official duties properly”).
CONCLUSION
The plain language of DoDI 1320.08 ¶ 6.3, read in its
statutory and regulatory context, aligned with Congres-
sional intent and Constitutional principles, supports the
conclusion that the SecAF has the authority and discretion
to narrow continuation eligibility criteria and not continue
large pools of officers within six years of retirement eligi-
bility. The Majority opinion misreads DoDI 1320.08 ¶ 6.3,
and, in so doing, erodes civilian control of the military and
the good order and discipline of the armed services. In es-
sence, what this Court is doing today is restricting the abil-
ity of the armed services to respond with fiscal agility to a
continuously changing and complex global environment.
That is clearly contrary to the Constitution, and the law,
and to Congressional intent.
For these reasons, I respectfully dissent.
