Ernest F. Mitchell v. Hung Cao, Acting Secretary of the Navy

Lieutenant (“LT”) Ernest F. Mitchell, United States Navy, served our nation on active duty for fifteen years. He was nominated by the President, and confirmed by the Senate, for promotion to the rank of Lieutenant Commander. LT Mitchell’s promotion was delayed, however, more than the statutory maximum Congress mandated and allowed for under 10 U.S.C. § 624(d)(5), which states that the “appointment of an officer may not be delayed under this subsection for . . . more than 18-months after the date on which such officer would otherwise have been appointed.” LT Mitchell filed an application with the Board for the Correction of Naval Records (“BCNR”) which declined to find that LT Mitchell was promoted by operation of law following the end of the 18-month period. LT Mitchell brought suit in the United States District Court for the District of Columbia, which affirmed the BCNR’s decision, and then appealed to the United States Court of Appeals for the District of Columbia Circuit, which also affirmed the District Court. This raises the question: 1. Did the Circuit Court’s holding that LT Mitchell was not promoted by operation of law, when he was retained on the promotion list longer than the 18 month statutory maximum mandated by Congress in 10 U.S.C. § 624(d)(5), impermissibly override Congressional authority to “make Rules for the Government and Regulation of the land and naval Forces” under Article I, Section 8, Clause 14 of the Constitution of the United States?