United States Court of Appeals for the Federal Circuit ______________________

DANIEL BADER, Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee ______________________

2022-2203 ______________________

Appeal from the United States Court of Federal Claims in No. 1:21-cv-01501-NBF, Senior Judge Nancy B. Fire- stone. ______________________

Decided: April 1, 2024 ______________________

JILLIAN STONECIPHER, Sidley Austin LLP, Washington, DC, argued for plaintiff-appellant. Also represented by CARTER GLASGOW PHILLIPS; CAROLINE A. WONG, Chicago, IL.

TANYA KOENIG, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, argued for defendant-appellee. Also represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, DOUGLAS K. MICKLE. ______________________ Case: 22-2203 Document: 37 Page: 2 Filed: 04/01/2024

2 BADER v. US

Before LOURIE, DYK, and STARK, Circuit Judges. DYK, Circuit Judge. Daniel Bader was a military officer who previously had held the rank of Colonel 1 but had attained the rank of Brig- adier General at the time of his application for retirement in 2012. Following a finding that Col. Bader had violated 18 U.S.C. § 207(c) and 5 C.F.R. § 2635 and that his perfor- mance in the rank of Brigadier General was not “satisfac- tory,” Col. Bader was retired at the rank of Colonel despite his attainment of the higher rank of Brigadier General. This determination affected his rate of retirement pay. Col. Bader brought suit in the Court of Federal Claims (Claims Court) for his allegedly lost pay. The Claims Court granted the government’s cross-motion for judgment on the administrative record and denied Col. Bader’s motion for judgment on the administrative record, finding that there was no error in the decision to retire him at the rank of Colonel. Col. Bader appeals. We affirm. BACKGROUND I The sole issue in this case is whether Col. Bader was properly retired at the rank of Colonel or whether he should have been retired at the rank of Brigadier General, the highest rank he attained. This in turn affects the level of retirement pay to which Col. Bader is entitled. Under 10 U.S.C. § 1370 and Air Force Instruction (AFI) 36-3203, an “officer is not automatically entitled to retire in the highest grade held.” AFI 36-3203 ¶ 7.6 (Sept. 18, 2015). “Instead, an officer is retired in the highest grade served on active duty satisfactorily . . . .” Id. Because the Air Force determined that Col. Bader’s performance as

1 Because Col. Bader was retired at the rank of Colo- nel, we refer to him throughout this opinion as Col. Bader. Case: 22-2203 Document: 37 Page: 3 Filed: 04/01/2024

BADER v. US 3

Brigadier General was unsatisfactory, the Air Force deter- mined that he was not entitled to retire at the rank of Brig- adier General. See id. This finding was based on a determination that Col. Bader had violated ethical stand- ards set forth in 18 U.S.C. § 207(c) and 5 C.F.R. § 2635. First, the Air Force concluded that Col. Bader had vio- lated 18 U.S.C. § 207(c). This provision imposes a “cooling off” period for former senior government officials, during which time they are forbidden from communicating with, or appearing before, their former agency with the intent to influence the agency on behalf of any other person. This restriction applies to anyone “employed in a position which is held by an active duty commissioned officer of the uni- formed services” who is serving in