Leslie J. Conti v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LESLIE J. CONTI,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-1403
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-01732-TMD, Judge Thompson M. Dietz.
______________________
Decided: September 6, 2024
______________________
L ESLIE J. CONTI, San Antonio, TX, pro se.
D ANIEL H OFFMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for defendant-appellee. Also represented by
BRIAN M. BOYNTON, STEVEN J OHN G ILLINGHAM , P ATRICIA
M. MCCARTHY .
______________________
Before T ARANTO, HUGHES , and CUNNINGHAM , Circuit
Judges.
Case: 24-1403 Document: 26 Page: 1 Filed: 09/06/2024

-- 1 of 9 --

CONTI v. US 2
P ER CURIAM .
Leslie J. Conti retired from the Texas Air National
Guard effective May 2018 at the rank and grade of E-6
(technical sergeant). After her retirement, she asked the
Air Force Board for Correction of Military Records (Board)
to award her a retroactive promotion to the rank and grade
of E-7 (master sergeant), with associated back pay and
other benefits. The Board denied the request. When Ms.
Conti sued the United States in the United States Court of
Federal Claims (Claims Court) to challenge the Board’s de-
cision, the Claims Court dismissed the complaint, under
Court of Federal Claims Rule (RCFC) 12(b)(6), for failure
to state a claim upon which relief can be granted. Conti v.
United States, 168 Fed. Cl. 547 (2023) (Decision). On Ms.
Conti’s appeal, of which we have jurisdiction under 28
U.S.C. § 1295(a)(3), we affirm.
I
A
This appeal presents the following alleged facts as as-
serted in Ms. Conti’s complaint at the Claims Court. First
Amended Complaint, Conti v. United States, 168 Fed. Cl.
547 (2023) (No. 20-cv-01732), ECF No. 31 (Complaint). In
July 2004, Ms. Conti enlisted in the Texas Air National
Guard and as a reserve member of the United States Air
Force. Id. at 6 ¶ 21. In May 2005, as part of that service,
she entered a program called Active Duty for Special Work
(later called Active Duty for Operational Support) and re-
mained in that program until she retired in May 2018. Id.
at 6 ¶¶ 22–23. Ms. Conti initially had the rank and grade
of E-5 (staff sergeant), but in September 2008, she was pro-
moted to the rank and grade of E-6 (technical sergeant).
Id. at 6 ¶¶ 22, 25.
In January 2012, as part of a systemic restructuring
decision, the highest grade authorized for an occupant of
the duty position in which Ms. Conti was serving—the
Case: 24-1403 Document: 26 Page: 2 Filed: 09/06/2024

-- 2 of 9 --

CONTI v. US 3
“authorized grade”—was lowered from E-6 to E-5. Id. at 6–
7 ¶¶ 27–28; see also SAppx1 (“Normally, the authorized
grade is the highest grade that can be held by the incum-
bent of the position.”).1 That change left Ms. Conti (an E-
6) in “overgrade” status, i.e., she had a higher grade than
the highest grade authorized for her position. Complaint,
at 7 ¶ 28; see also Air National Guard Instruction (ANGI)
36-2101, Assignments within the Air National Guard
(ANG) (Apr. 10, 2012, superseding ANGI 36-2101 (June 11,
2004)) (defining “[o]vergrade” as “[a] personnel assignment
condition where an individual’s grade is greater than the
authorized grade indicated for the UMD position to which
assigned”); SAppx16.
Ms. Conti’s overgrade status rendered her ineligible for
promotion (as relevant here, from E-6 to E-7).2 Complaint,
at 7 ¶ 28; see also ANGI 36-2502 ¶ 2.1.2.2, Promotion of
Airmen (June 17, 2010); SAppx25; Air Force Instruction
(AFI) 36-2502 ¶ 10.1.15.3, Enlisted Airman Promotion/De-
motion Programs (Dec. 12, 2014); Appx24.3 During the pe-
riod at issue, Ms. Conti discovered eight positions (with
authorized grades of at least E-6) to which she could have
been moved to cure her overgrade status. Complaint, at 11
¶ 48. She also learned of an E-7 member, from outside
Texas, who had been hired into a Texas Air National Guard
position to which Ms. Conti had not been reassigned. Id.
at 13–14 ¶ 63.
1 “SAppx” refers to the supplemental appendix filed
by the United States in this court with its brief as appellee.
2 The United States maintains that, for substantial
portions of the period at issue, there were also other rea-
sons Ms. Conti was ineligible for promotion. United States
Response Br. at 7.
3 “Appx” refers to Ms. Conti’s appendix filed in this
court with her opening brief.
Case: 24-1403 Document: 26 Page: 3 Filed: 09/06/2024

-- 3 of 9 --

CONTI v. US 4
Ultimately, in May 2018, Ms. Conti retired at the rank
and grade of E-6. Id. at 12–13 ¶ 57.
B
In October 2018, Ms. Conti filed an application with the
Board for retroactive promotion to the rank and grade of E-
7, correction of her records to reflect that promotion, and
award of the back pay and benefits associated with such a
retroactive promotion. SAppx69. Ms. Conti argued that
the governing regulation—the ANGI 36-2101 instruction—
required the Air National Guard to eliminate her over-
grade status by reassigning her “to the first available posi-
tion commensurate with [her] grade and qualifications”
and that, given the availability of other positions, the Air
National Guard violated that instruction by failing to do so.
Complaint, at 13 ¶¶ 59–60. Had the Air National Guard
followed that instruction, Ms. Conti argued, she “would
have been both eligible and qualified to promote” to an E-7
grade. Id. at 13 ¶ 61.
The Board initially denied Ms. Conti’s request,
SAppx80–82, and Ms. Conti challenged the Board’s deci-
sion by filing a complaint at the Claims Court under the
Military Pay Act, 37 U.S.C. § 204, see SAppx84. On the
government’s unopposed request, the Claims Court re-
manded the matter to the Board for redetermination.
SAppx85–87. On remand, the Board again denied Ms.
Conti’s request. SAppx69–78.
The Board found that Ms. Conti had shown “an error
and injustice” regarding the government’s handling of her
overgrade status. SAppx75. But the Board also found in-
sufficient proof of an adverse effect on promotion eligibility.
In particular, the Board reasoned, the relevant military
“unit’s responsibility to correct the applicant’s overgrade
condition by reassigning her to a position commensurate
with her [E-6] grade and for which she was qualified would
have been met by placing her in a technical sergeant (E-6)
billet [position],” which “would have corrected the
Case: 24-1403 Document: 26 Page: 4 Filed: 09/06/2024

-- 4 of 9 --

CONTI v. US 5
overgrade condition, but the applicant would still not have
been eligible for promotion to the rank and grade of master
sergeant (E-7).” SAppx76. Ultimately, the Board ruled
that Ms. Conti’s “contention that correction of her over-
grade condition would have resulted in her promotion to be
wholly speculative,” concluding that “a preponderance of
the evidence does not substantiate [her] position with re-
gard to her promotion to the rank and grade of master ser-
geant (E-7).” SAppx77.
On review of the Board’s decision, the Claims Court
held that it had jurisdiction, Decision, at 555, but dismissed
Ms. Conti’s complaint for failure to state a claim under
RCFC 12(b)(6), Decision, at 555–59. Noting that “civilian
courts are reluctant to second-guess decisions of the mili-
tary authorities as to promotion, separation, or reassign-
ment,” id. at 556 (quoting Antonellis v. United States, 723
F.3d 1328, 1332 (Fed. Cir. 2013) (collecting cases)), the
Claims Court, applying the standards governing a motion
under RCFC 12(b)(6), determined that the instructions Ms.
Conti pointed to and the facts she alleged did not give rise
to the necessary inference of “a clear-cut entitlement to a
promotion that the Air Force has failed to recognize,” id. at
559. As a result, the Claims Court ruled, Ms. Conti could
not obtain relief in this case and dismissal was required.
Id.
Ms. Conti then filed this timely appeal. We have juris-
diction under 28 U.S.C. § 1295(a)(3).
II
We review the Claims Court’s decision to dismiss under
RCFC 12(b)(6) without deference, taking all plausible fac-
tual allegations in the complaint as true and construing
those factual allegations in the light most favorable to the
non-movant. Oliva v. United States, 961 F.3d 1359, 1362
(Fed. Cir. 2020). Dismissal for failure to state a claim un-
der RCFC 12(b)(6) “is appropriate when the court deter-
mines that the facts as asserted do not entitle the claimant
Case: 24-1403 Document: 26 Page: 5 Filed: 09/06/2024

-- 5 of 9 --

CONTI v. US 6
to a legal remedy.” Godwin v. United States, 338 F.3d
1374, 1377 (Fed. Cir. 2003).
“As a general matter, a service member is entitled only
to the salary of the rank to which he is appointed and in
which he serves,” and “[f]or that reason, in a challenge to a
decision not to promote, the Military Pay Act ordinarily
does not give rise to a right to the pay of the higher rank
for which the plaintiff was not selected.” Smith v. Secretary
of Army, 384 F.3d 1288, 1294 (Fed. Cir. 2004) (collecting
cases); see also Antonellis, 723 F.3d at 1332 (“[C]ivilian
courts are reluctant to second-guess decisions of the mili-
tary authorities as to promotion, separation, or reassign-
ment.”); Skinner v. United States, 594 F.2d 824, 830 (Ct.
Cl. 1979). There is an exception, however, to that general
rule “in the unusual case in which, on the plaintiff’s legal
theory, ‘there is a clear-cut legal entitlement’ to the promo-
tion in question, i.e., he has satisfied all the legal require-
ments for promotion, but the military has refused to
recognize his status.” Smith, 384 F.3d at 1294–95 (citation
omitted) (quoting Skinner, 594 F.2d at 830 (“We can award
a person pay above the position he occupied only if there is
a clear-cut, legal entitlement to it. Such cases are rare.”))
(collecting cases). Here, we must affirm the dismissal of
Ms. Conti’s complaint because it does not allege facts sup-
porting an inference of a “clear-cut legal entitlement” to a
retroactive promotion from the E-6 grade (at which, during
the relevant period, she served and eventually retired) to
the rank and grade of E-7.
Ms. Conti points to a number of directives and instruc-
tions that, she asserts, provide for a clear-cut legal entitle-
ment to a promotion in light of the Texas Air National
Guard’s failure to eliminate her overgrade status via reas-
signment to one of the then-available positions identified
in the complaint: Department of Defense Directive (DoDD)
1304.20 (July 28, 2005); Air Force Policy Directive (AFPD)
36-25, Military Promotion and Demotion (May 7, 2014);
AFI 36-2502; and ANGI 36-2502. Conti Informal Br. at 2–
Case: 24-1403 Document: 26 Page: 6 Filed: 09/06/2024

-- 6 of 9 --

CONTI v. US 7
6; see also Appx15–17 (DoDD 1304.20); Appx18–19 (AFPD
36-25); Appx20–27 (AFI 36-2502); Appx28–32 (ANGI 36-
2502). But those directives and instructions state goals
and objectives of the Air National Guard promotion system
generally, often in highly discretionary or circumstance-de-
pendent terms. They do not articulate the clear-cut legal
entitlement needed by Ms. Conti to support judicial relief
from denial of her retroactive-promotion request.
DoDD 1304.20, for example, states that the Air Na-
tional Guard “shall define desired promotion timing objec-
tives for grades E-5 through E-7. In normal years the
average experience at promotion shall be within 1 year
(above or below) the desired promotion timing,” with a goal
of providing “visible, relatively stable career progression
opportunities over the long term.” DoDD 1304.20 ¶¶ 4.1.4,
4.2.2; Appx16. That directive sets out general career pro-
gression goals for the work force as a whole; it does not es-
tablish specific legal entitlements for promotion from any
particular position.
In similar terms, AFPD 36-25 states that the Air Force
and Air Force Reserve components will “[s]elect Airmen for
promotion based on potential to serve in the next higher
grade” and “using the fully qualified or best qualified con-
cept.” AFPD ¶ 3.1; Appx19. That statement clearly incor-
porates considerable discretion; we have said before that
“[c]ourts are in no position to determine the ‘best qualified
Officer’ or the ‘best match’ for a particular billet.” Antonel-
lis, 723 F.3d at 1336; see also Sargisson v. United States,
913 F.2d 918, 922 (Fed. Cir. 1990) (“A court lacks the spe-
cial expertise needed to review reserve officers’ records and
rank them on the basis of relative merit.”). AFI 36-2502
and ANGI 36-2502 are relevantly similar. They articulate
general personnel and workforce progression objectives—
requiring commanders to “ensure their personnel meet all
promotion criteria . . . prior to promotion” and to “execute
a well-conceived, viable personnel force management to eq-
uitably distribute the progressive development and
Case: 24-1403 Document: 26 Page: 7 Filed: 09/06/2024

-- 7 of 9 --

CONTI v. US 8
upward mobility of their assigned personnel,” AFI 36-2502
¶ 10.1.11; Appx23; ANGI 36-2502 ¶ 1.1.4 (similar);
Appx29—while also stating that the decision to recommend
for any particular promotion is left to a commander’s dis-
cretion, see AFI 36-2502 ¶ 10.1.11.1; Appx23; ANGI 36-
2502 ¶ 1.4.2 (similar); Appx30.
At best, the directives and instructions Ms. Conti cites
suggest that, but for the Air National Guard’s failure to
eliminate her overgrade status by reassigning her, one se-
rious obstacle to her promotion eligibility would have been
eliminated. See ANGI 36-2101 ¶ 2.18.11; Appx36; ANGI
36-2502 ¶ 2.1.2.2; SAppx25; AFI 36-2502 ¶ 10.1.15.3;
Appx24; see also Decision, at 558–59. But those documents
also confirm that mere eligibility does not create a clear-
cut legal entitlement to any promotion, as promotion deci-
sions even as to eligible candidates are discretionary. For
example, AFI 36-2502 and ANGI 36-2502 both state that
“[t]he fact a member meets each of the eligibility criteria
outlined in this instruction does not automatically guaran-
tee promotion to the next higher grade. Meeting minimum
eligibility criteria only indicates that a member can be con-
sidered eligible for promotion.” AFI 36-2502 ¶ 10.1.1.1;
Appx22; ANGI 36-2502 ¶ 1.4.1 (same); Appx30.
Accordingly, even if the Air National Guard had elimi-
nated Ms. Conti’s overgrade status, as Ms. Conti asserts it
was required to do, and even if no other factors rendered
Ms. Conti ineligible for promotion during the relevant pe-
riod, all that could be inferred is that Ms. Conti might have
been “considered for promotion . . . earlier.” Smith, 384
F.3d at 1295. And even then, the directives and instruc-
tions that Ms. Conti cites clarify that the decision to pro-
mote, or not, would have been discretionary, not
mandatory. We have previously rejected the argument
that, in such circumstances, a claimant “enjoy[s] a clear-
cut legal right to promotion.” Id. Applying the same rea-
soning, we conclude that Ms. Conti’s complaint does not
Case: 24-1403 Document: 26 Page: 8 Filed: 09/06/2024

-- 8 of 9 --

CONTI v. US 9
establish a clear-cut legal right to a promotion, and we af-
firm the Claims Court’s dismissal of that complaint.
III
We have considered Ms. Conti’s other arguments and
find them unpersuasive. For the foregoing reasons, we af-
firm the Claims Court’s dismissal of Ms. Conti’s complaint
for failure to state a claim.
The parties shall bear their own costs.
AFFIRMED
Case: 24-1403 Document: 26 Page: 9 Filed: 09/06/2024

-- 9 of 9 --