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Air Force General Loses Appeal for Retroactive Promotion

By Mark Wilson, Esq. on January 09, 2015 | Last updated on March 21, 2019

Eight days after the New Year and we finally have the Federal Circuit's first precedential opinion of 2015. Patents? Trademarks? Tariffs? You wish!

Instead, Schwalier v. Hagel is about a promotion that never came to pass. Air Force Brigadier General Terryl Schwalier was nominated by the president and confirmed by the Senate to the rank of major general. He was supposed to be appointed in 1997, but the appointment got delayed and President Clinton decided not to appoint him after all.

Schwalier tried to use the defense of "no backsies" to claim that he had been appointed, but the Federal Circuit didn't think so.

The Sacrificial General

You're probably upset that we glossed over his delay. "He got delayed"? It's actually more interesting than that. Schwalier took over the 4404th Wing in Saudi Arabia before the effective date of his promotion. Many of the Wing's personnel lived in nearby Khobar Towers.

See where this is going? In June 1996, terrorists bombed the Khobar Towers complex, killing 19 and injuring hundreds. There was an investigation, and the Federal Circuit opinion quite tactfully said only that the "investigation was unfavorable to Mr. Schwalier." The New York Times, on the other hand, reported that Schwalier "did not take such basic steps as establishing an effective alarm system and regularly practicing a plan to evacuate troops from the Khobar Towers buildings." If the phrase had existed in 1997, we would have said that Schwalier got thrown under the bus.

No Promotion for You

Many years later, Schwalier argued that his promotion was delayed for so long that "he was therefore promoted by operation of law." The Air Force Corrections Board agreed in 2007, retroactively marking him down in the records as a major general. This, of course, meant Schwalier had to sue for back pay. That all came to a halt in 2008 when the Secretary of Defense rescinded all the corrections to his record.

The Federal Circuit had one teensy problem with Schwalier's argument. You need three things to get a senior military promotion: nomination, confirmation, and appointment. Because Clinton withdrew Schwalier's name from the promotion list in 1997, "the third and final act required for an appointment is missing altogether in this case." (And by the way, there's no such thing as automatic appointment by process of law.)

The 2007 Corrections Board decision couldn't override Clinton's decision not to appoint Schwalier. To allow otherwise "would effectively allow Congress to compel the President to appoint senior officers of the United States" by using 10 USC Section 1552.

And, in case you were wondering, the Secretary of Defense's actions weren't arbitrary and capricious, either. He stepped in to, ironically, correct an error the Corrections Board made: Schwalier couldn't have been promoted "automatically" because that's not really a thing.

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