Case: 22-2203 Document: 37 Page: 1 Filed: 04/01/2024
`
`
`
`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
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`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 Colonel1 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.
`
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`BADER v. US
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`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 a senior “grade or rank,”
`including the rank of Brigadier General. 18 U.S.C.
`§ 207(c)(2)(A)(iv). Col. Bader does not challenge the deter-
`mination that he violated Section 207(c), admitting that he
`contacted members of the Air Force during his “cooling off”
`period in violation of this provision.
`Second, the Air Force determined that Col. Bader vio-
`lated 5 C.F.R. § 2635, which defines Standards for Ethical
`Conduct for Employees of the Executive Branch. Sec-
`tion 2635.702 of the regulation provides that “an employee
`shall not use or permit the use of his Government position
`or title . . . in a manner that is intended to coerce or induce
`another person, including a subordinate, to provide any
`benefit” to himself or any other person with whom the em-
`ployee is affiliated in a nongovernmental capacity. 5 C.F.R.
`§ 2635.702(a);
`see also 5 C.F.R.
`§§ 2635.702(d),
`2635.101(a), (b). Col. Bader argues that the determination
`that he violated this provision was erroneous and that this
`error requires a judgment in his favor despite the admitted
`violation of Section 207(c).
`The background leading to the Air Force’s determina-
`tions is as follows.
`
`

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`4
`
`BADER v. US
`
`II
`Col. Bader graduated from the United States Air Force
`Academy in 1985. Since that time, he has served many po-
`sitions within the Air Force, including several staff posi-
`tions at the National Guard Bureau (NGB). The National
`Guard Bureau “administers the federal functions of the
`Army and Air National Guard.” Air National Guard,
`United States Air Force, https://www.af.mil/About-
`Us/Fact-Sheets/Display/Article/104546/air-national-guard/
`(last visited Mar. 4, 2024). He also served as Commander
`of the Air National Guard/Air Force Reserve Command
`Test Center (AATC) in 2008 and 2009. He was promoted
`to the rank of Colonel in 2005 and to the rank of Brigadier
`General in August 2010. His service up until the time of
`his appointment as Brigadier General appears to have
`been exemplary. Col. Bader was awarded numerous ser-
`vice medals throughout his career and was consistently
`commended for his leadership.
`The events in question occurred during his service as
`Assistant Adjutant General – Air, New York National
`Guard (ATAG-Air NYNG) from August 2010 until August
`2012 when he held the rank of Brigadier General. During
`this period, because Col. Bader served as ATAG-Air NYNG
`in a part-time capacity, he was permitted to engage in out-
`side employment. In September 2010, Col. Bader accepted
`a part-time civilian position with Gauss Management Re-
`search and Engineering, Inc. (GMRE) as their Vice Presi-
`dent
`for
`International Programs, with
`full-time
`employment to begin in January 2011. Col. Bader’s later
`positions at GMRE included Vice President of East Coast
`Operations and Executive Vice President of Operations.
`GMRE is a veteran-owned business with its headquar-
`ters in South Ogden, Utah and is a member of System of
`Systems Security Consortium (SOSSEC). SOSSEC con-
`sists of a variety of organizations, including academic in-
`stitutions and private companies. As a consortium,
`
`

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`BADER v. US
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`5
`
`SOSSEC provides the services of its member organizations
`to the government under Other Transactions Authority,
`which, as described below, is “a special vehicle used by fed-
`eral agencies to obtain or advance research and develop-
`ment or prototypes.” J.A. 168.
`In 2011 and 2012, GMRE became aware of two govern-
`ment contracting opportunities. Col. Bader represented
`GMRE in attempting to secure these contracts, and GMRE
`was successful in obtaining both contracts. The 2011 con-
`tract concerned support for a division of the Air National
`Guard where Col. Bader previously served as Commander.
`The 2012 contract between the National Guard Bureau and
`GMRE awarded GMRE “end of year fallout funds for a
`GMRE study of [Remotely Piloted Aircraft Squadron Oper-
`ation Centers.]” J.A 150. These Squadron Operation Cen-
`ters provide ground operational support for Remotely
`Piloted Aircraft. The Air National Guard sought contrac-
`tors to research ways to integrate the Operation Centers.
`The contract impacted the six Remotely Piloted Aircraft
`units in the Air National Guard across the nation, one of
`which was located in New York at the time when Col. Ba-
`der was serving as the ATAG-Air for New York.
`In each instance, the contracting parties were GMRE
`and divisions of the National Guard Bureau. While Col.
`Bader was not directly responsible for negotiating the con-
`tracts on behalf of the National Guard Bureau at the time
`he represented GMRE in the negotiations, he was an officer
`of the Air National Guard and he dealt with Air Force of-
`ficers during the negotiating process. This led to the two
`problems at issue here—the violation of the “cooling off”
`period statute, 18 U.S.C. § 207(c), and the violation of pri-
`vate gain regulation 5 C.F.R. § 2635, described in more de-
`tail below. An investigation was commenced by the
`Secretary of the Air Force, Inspector General.
`
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`6
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`BADER v. US
`
`III
`Apparently, due to an Air Force reorganization, Col.
`Bader was required to be reassigned or to retire in 2012.
`He applied for military retirement and planned to retire on
`September 1, 2012. Bader v. United States, 160 Fed. Cl.
`529, 536 (2022). On August 29, 2012, however, Col. Bader
`was notified that he was being investigated by the Inspec-
`tor General due to alleged violations of ethics rules.
`Then, on January 14, 2013, Col. Bader was informed of
`the specific alleged misconduct that formed the basis of the
`investigation. The first allegation was that Col. Bader, “by
`his actions while serving as an Air National Guard general
`officer and as an employee of [GMRE], violated post-gov-
`ernment employment ethics restrictions as stated in Title
`18, United States Code, Section 207.” J.A. 171. The second
`allegation was that Col. Bader, “by his actions while serv-
`ing as an Air National Guard general officer and as an em-
`ployee of [GMRE], used his public office for private gain, in
`violation of 5 C.F.R. [§] 2635.” J.A. 191. In April 2014, the
`Inspector General, in a Report of Investigation, determined
`that both allegations were substantiated.
`On July 24, 2014, Col. Bader was sent a Letter of Rep-
`rimand by the Department of Air Force, Office of the Vice
`Chief of Staff. On September 25, 2014, the Director of the
`Air National Guard initiated a discretionary Officer Grade
`Determination for Col. Bader. On October 7, 2015, the Sec-
`retary of the Air Force, “after reviewing Col. Bader’s ‘entire
`military record of service, including the misconduct sub-
`stantiated by an April 2014 Air Force Inspector General
`investigation’ found that Col. Bader should be re-
`tired . . . in the lower grade of [C]olonel,” as opposed to his
`
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`Case: 22-2203 Document: 37 Page: 7 Filed: 04/01/2024
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`BADER v. US
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`7
`
`highest attained rank of Brigadier General.2 Bader, 160
`Fed. Cl. at 537. “A single incident of misconduct can render
`service in a grade unsatisfactory despite a substantial pe-
`riod of otherwise exemplary service,” and the determina-
`tion of “satisfactory or credible service” is a matter of
`Secretarial discretion. AFI 36-3203 ¶¶ 7.6.2.2, 7.6.2. On
`December 2, 2015, the Acting Under Secretary for Defense
`for Personnel and Readiness concurred with the Air Force’s
`decision.
`Col. Bader was notified of this decision on February 11,
`2016. Col. Bader then petitioned the Air Force Board for
`Correction of Military Records (AFBCMR), asking that “(1)
`‘the [Inspector General’s] Report Findings be overturned as
`to the substantiated allegation that he used his public of-
`fice for private gain’; (2) ‘that his retirement grade be re-
`stored and approved in the rank and grade of Brigadier
`General/O-7’; (3) ‘retirement pay and benefits be directed
`and paid’; and (4) ‘removal or modification of his military
`
`
`2 On November 4, 2014, the Office of General Coun-
`sel for the Secretary of the Air Force “initiated a federal
`contractor debarment action against Col. Bader based on
`the Inspector General report.” Bader, 160 Fed. Cl. at 537.
`A debarment action “‘is an administrative action which ex-
`cludes nonresponsible contractors from government con-
`tracting’ and ‘effectuate[s] the [federal government’s]
`policy that agencies shall solicit offers from, award con-
`tracts to, and consent to subcontracts with responsible con-
`tractors only.’” Friedler v. Gen. Servs. Admin., 271 F. Supp.
`3d 40, 43 (D.D.C. 2017) (quoting Caiola v. Carroll, 851 F.2d
`395, 397–98 (D.C. Cir. 1988)). After Col. Bader responded
`through counsel, explaining that he failed to understand
`the requirements of the post-government employment reg-
`ulations in Section 207(c) but that he accepted responsibil-
`ity for those violations, the proposed debarment action was
`terminated.
`
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`8
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`BADER v. US
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`records to comport with the Board’s findings in [t]he inter-
`est of equity and justice.’” Bader, 160 Fed. Cl. at 538 (al-
`terations in original) (citation omitted). In September
`2017, a panel of the AFBCMR concluded that no error or
`injustice existed that would warrant the requested relief,
`relying on the Inspector General’s Report. Id. Col. Bader
`filed for reconsideration in 2019, submitting additional ev-
`idence. The Board again found that no error or injustice
`existed. Id. at 539.
`
`IV
`Col. Bader filed a complaint in the Claims Court in
`2021, seeking to recover the original retirement pay he
`would have earned if he had been retired at the rank of
`Brigadier General. The court determined that 10 U.S.C.
`§ 1370 was a money-mandating statute that supplied the
`court with jurisdiction under the Tucker Act. The Claims
`Court further concluded that Col. Bader had not demon-
`strated that the AFBCMR’s decisions were arbitrary, ca-
`pricious, unsupported by substantial evidence, or contrary
`to law. Id. at 549.
`This appeal followed. We have jurisdiction pursuant to
`28 U.S.C. § 1295(a)(3).
`DISCUSSION
`We review a decision of the Claims Court “granting or
`denying a motion for judgment on the administrative rec-
`ord without deference.” Barnick v. United States, 591 F.3d
`1372, 1377 (Fed. Cir. 2010); see also Lewis v. United States,
`458 F.3d 1372, 1376 (Fed. Cir. 2006). Applying the same
`standard of review as the Claims Court, “we will not dis-
`turb the decision of the AFBCMR unless it is arbitrary, ca-
`pricious, contrary to law, or unsupported by substantial
`evidence.” Barnick, 591 F.3d at 1377. In reviewing the de-
`cisions of the AFBCMR, we do not substitute our judgment
`for that of the military “when reasonable minds could reach
`differing conclusions on the same evidence.” Heisig v.
`
`

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`BADER v. US
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`9
`
`United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983). Relief
`from a corrections board decision will not be granted unless
`it is clear “by ‘cogent and clearly convincing evidence that
`the correction board acted arbitrarily, capriciously, con-
`trary to law, or that its determination was unsupported by
`substantial evidence.’” Dodson v. United States, 988 F.2d
`1199, 1204–05 (Fed. Cir. 1993) (quoting Arens v. United
`States, 969 F.2d 1034, 1037 (Fed. Cir. 1992)).
`I
`Regulation of the ethical standards of public officials
`has been a concern since the founding of our country. Dan-
`iel L. Koffsky, Coming to Terms with Bureaucratic Ethics,
`11 J.L. & Pol. 235, 240 n.28 (1995).3 As the government
`expanded over time in both size and function, the regula-
`tion of government employee conduct became more exten-
`sive. Notable was the Ethics in Government Act of 1978,
`Pub. L. No. 95-521, 92 Stat. 1824, following the events of
`Watergate, which, among other things, amended the
`
`3 Historical conflict of interest provisions include “(1)
`limits imposed on the Secretary of Treasury by the First
`Congress; (2) an 1853 prohibition on the prosecution by fed-
`eral employees of claims against the government; (3) 18
`U.S.C. § 216, which in 1862 barred federal employees from
`receiving consideration for taking or procuring contracts;
`(4) 18 U.S.C. § 434, which in 1863 barred federal employees
`from transacting government business with companies
`with which they had an interest; (5) 18 U.S.C. § 281, which
`in 1864 barred federal employees from rendering services
`for a fee in matters which the United States had an inter-
`est; (6) 5 U.S.C. § 99, which in 1872 imposed a two year ban
`on post-employment claims; and (7) the salary supplemen-
`tation prohibition first enacted in 1917.” Koffsky, supra, at
`240 n.28 (citing Robert N. Roberts, White House Ethics:
`The History of the Politics of Conflict of Interest Regulation
`7 (1988)).
`
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`10
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`BADER v. US
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`existing post-government employment restrictions, re-
`quired financial disclosures and established the Office of
`Government Ethics within the Office of Personnel Manage-
`ment. We are concerned here with two statutes enacted in
`1962 and 1966.
`In 1962, Congress enacted a statute, 76 Stat. 1119, to
`“simplify and strengthen the conflict laws presently in ef-
`fect.” S. Rep. No. 87-2213, at 4 (1962). Among other things,
`this statute continued the pre-existing restrictions on con-
`tacts between former senior officials and their agencies.
`See, e.g., 18 U.S.C. §§ 203, 205, 207.
`Additionally, 5 U.S.C. § 7301, enacted in 1966, author-
`ized the President to “prescribe regulations for the conduct
`of employees in the executive branch.” The Office of Gov-
`ernment Ethics promulgated regulations that set out the
`Standards of Ethical Conduct for Employees of the Execu-
`tive Branch, including the provisions at issue here. 5
`C.F.R. § 2635. This regulation lays out the responsibilities
`of public service, delineating “general principles” that “re-
`quir[e] employees to place loyalty to the Constitution, the
`laws and ethical principles above private gain.” 5 C.F.R.
`§ 2635.101(a), (b). Among those general principles is that
`employees shall not use their public office for private gain.
`5 C.F.R. § 2635.101(b)(7). Other provisions of the regula-
`tion reinforce this obligation. See 5 C.F.R. § 2635.702(a),
`(d).
`
`A. Violations of 18 U.S.C. § 207(c)
`Col. Bader, a part-time general officer in the Air Na-
`tional Guard who was returned to active-duty status as
`needed, was a government employee subject to the “cooling
`off” restrictions of 18 U.S.C. § 207. Because Col. Bader was
`a “special Government employee,” he was prohibited from
`“knowingly mak[ing], with the intent to influence, any
`
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`BADER v. US
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`11
`
`communication to or appearance before” his former4 agency
`“on behalf of any other person . . . in connection with any
`matter on which such person seeks official action by any
`officer or employee of such department or agency,” for one
`year following his last day of active service. This prohibi-
`tion only applies if an officer serves in active duty for more
`than 60 days within the prior 365 days. If Col. Bader
`served in active duty status for more than 60 days within
`the prior 365 days, he was barred from contacting his for-
`mer agency for one year. 18 U.S.C. § 207(c)(1), (c)(2)(B);
`Bader, 160 Fed. Cl. at 534. Due to Col. Bader’s active duty
`service between 2010 and April 2012, he was in a “cooling
`off” period continuously from January 1, 2011, through
`April 10, 2013, and was prohibited from communicating
`with the Department of the Air Force during that time “on
`behalf of any other person.” 18 U.S.C. § 207(c).
`Col. Bader admitted that he violated these restrictions
`by communicating with the Air Force numerous times dur-
`ing this period. Despite being advised that he could not
`communicate with his former agency for a period of one
`year, Col. Bader “proceeded to engage” with this agency in
`his “governmental contractor capacit[y].” A.R. 369.5 His
`frequent switches from “representation of the [Air National
`Guard] to representation of GMRE” created confusion
`among those he worked with, making it unclear whether
`
`
`4 The use of the word “former” does not fully describe
`the relationship between Col. Bader and the Air Force be-
`cause he continued to be a part-time Air Guardsman with
`the Air National Guard. As a member of the Air National
`Guard, he was “periodically returned to active-duty status
`as needed.” Appellant Opening Br. 7–8. We use the lan-
`guage “former” here consistent with the statutory language
`of 18 U.S.C. § 207(c).
`5 Citations to the administrative record (“A.R.”) refer
`to Bader v. United States, 1:21-cv-01501-NBF, ECF No. 8.
`
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`12
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`BADER v. US
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`he was representing the National Guard, the State of New
`York, or GMRE. A.R. 370. He would “communicate[] via
`email with Air Force and NGB officials to advocate for var-
`ious contracting efforts—sometimes in his capacity as an
`[Air Force General Officer], and other times as a repre-
`sentative of his private employer.” A.R. 366. He received
`a Cautionary Memo from the National Guard Bureau,
`Chief Counsel (NGB/JA) Ethics Counselor, warning him of
`potential conflicts of interest because of his concurrent mil-
`itary duties and work with GMRE, but he continued to “re-
`peatedly contact[] members of AATC, NGB/A2, and
`NGB/A5 regarding the need for and award of a contract to
`conduct a [Remotely Piloted Aircraft Squadron Operations
`Centers] study.” A.R. 367.
`For example, Col. Bader “communicated with the Air
`Force by contacting AATC leadership on at least two occa-
`sions via email . . . regarding the use of SOSSEC as a con-
`tract vehicle and regarding a[] [Request for Research
`Project Proposal].” J.A. 190. He also “testified that he con-
`tacted several agencies, including the NGB, in an effort to
`identify business opportunities for GMRE.” Id. Beyond
`these communications, he “advised and assisted the NGB
`in the development of a [Statement of Objectives] for a [Re-
`mote Squadron Operation Center (“RSOC”)] study and di-
`rectly supported the RSOC study after GMRE was
`awarded the contract.” Id. Each time Col. Bader, with the
`intent to influence, communicated or appeared before his
`former agency during the “cooling off” period, he violated
`18 U.S.C. § 207(c).
`Col. Bader has accepted responsibility for his actions
`that led to the violation of § 207(c). J.A. 209. However, he
`contends that the denial of general officer retirement pay
`was based both on his violation of the cooling off statute,
`18 U.S.C. § 207(c), and a violation of 5 C.F.R. § 2635 and
`cannot be sustained if we find that the AFBCMR’s decision
`regarding the violation of 5 C.F.R. § 2635 was arbitrary
`and capricious or unsupported by substantial evidence.
`
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`BADER v. US
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`13
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`B. Violation of 5 C.F.R. § 2635
`The primary alleged misconduct relates to a 2012 con-
`tract awarded to GMRE by the National Guard Bureau.
`The AFBCMR, in its initial decision, declined to provide re-
`lief, relying on the Inspector General’s Report and advisory
`opinions from the Secretary of the Air Force and the Na-
`tional Guard Bureau as the basis for its determination that
`5 C.F.R. § 2635 was violated. The improper conduct with
`respect to the 2012 contract falls into several categories.
`Contract Drafting
`The contemplated 2012 contract was to require that
`contractors prepare a baseline study about Remotely Pi-
`loted Aircraft Squadron Operation Centers. This study
`was necessary to bring the existing Operation Centers to a
`uniform standard, a standard which could then be used as
`a template for any new centers. In developing the Request
`for Research Project Proposal for the contract, the Air
`Force needed to write a Statement of Objectives to deline-
`ate the scope of the contract upon which contractors would
`then be able to bid. In June 2012, Col. Bader, working on
`behalf of GMRE, assisted the National Guard Bureau
`staff—the same organization where Col. Bader spent over
`half his time on active duty during this period—in develop-
`ing and writing the Statement of Objectives for this con-
`tract. To assist with the drafting, Col. Bader, on behalf of
`GMRE, led a meeting with National Guard Bureau staff
`where they discussed the requirements of the proposal be-
`fore the contract was awarded. He also provided a draft
`Statement of Objectives to the project manager of the con-
`tract. His actions caused concern among officers at the Na-
`tional Guard Bureau because, as one officer expressed, “at
`the end of the day, [the requirements] needed to be some-
`thing that was defined by the government.” J.A. 199. After
`helping set the scope of work with the National Guard Bu-
`reau, Col. Bader then helped draft GMRE’s Response to the
`Research Project Proposal.
`
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`BADER v. US
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`The Letter of Reprimand that Col. Bader received fol-
`lowing the Inspector General’s Report found “[p]articularly
`egregious . . . the action [Col. Bader] took to influence the
`scope of an NGB services contract and then writ[e] the re-
`sponse to the same contract on behalf of [his] civilian em-
`ployer.” J.A. 205.
`Interactions with Subordinates
`Col. Bader was found to have behaved unethically in
`requesting actions from subordinate officers designed to as-
`sist GMRE while its contract proposal was under consider-
`ation by the National Guard Bureau. Specifically, he was
`found to have “actively solicited and obtained the assis-
`tance of subordinate military officers to secure a contract
`on behalf of his employer, GMRE.” J.A. 202. Having ear-
`lier provided career advice to a subordinate government of-
`ficer (First Lieutenant Russo), Col. Bader sent her draft
`emails and asked her to forward those emails to contract-
`ing specialists within the government as if they came di-
`rectly from her, regarding the same proposed GMRE
`contract award. The officer testified that Col. Bader’s rank
`had influence on her, and she thought “it was a little odd”
`for him to be making this request. J.A. 196. She testified
`that she felt a “sense of trust” and an “intimidation factor”
`“given his position, given his rank.” J.A. 196–97.6
`Col. Bader enlisted the help of other subordinate offic-
`ers as well in connection with the 2012 contract. Col. Bader
`
`
`6 As part of his motion for reconsideration, Col. Ba-
`der included a letter from First Lieutenant Russo. Col. Ba-
`der contends the AFBCMR failed to consider this letter and
`argues that this constitutes procedural error. We do not
`agree. This letter does not undermine her previous testi-
`mony but instead reaffirms it. First Lieutenant Russo is
`explicit that her “testimony to the IG [stood] and [she did]
`not wish to modify anything.” A.R. 304.
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`BADER v. US
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`15
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`contacted a subordinate officer on several occasions over
`the phone and by email regarding the drafting of the State-
`ment of Objectives and the GMRE’s Response to the Re-
`motely Piloted Aircraft Squadron Operation Centers
`contract. On one occasion, after Col. Bader reached out di-
`rectly to a government contracting specialist for infor-
`mation about an internal government funding deadline
`and was told to go through the proper channels to request
`such information, Col. Bader sent a draft email to two sub-
`ordinate officers. In the draft email, he essentially made
`the same inquiry that he had just made to the contracting
`specialist but requested that the subordinate officers for-
`ward it to that same contracting specialist as if it came
`from the subordinate officers.
`After GMRE was awarded the first phase of the Re-
`motely Piloted Aircraft Squadron Operation Center con-
`tract, Col. Bader asked a subordinate officer to forward
`another draft email “to create the appearance that [he], a
`government employee, supported the award of follow-on
`phases to the [] project.” A.R. 371. The subordinate officer
`did so, “despite the fact that he did not personally support
`follow-on funding for the project.” Id.
`Blurring the Lines Between Official and Civilian Status
`The Secretary of the Air Force, Deputy General Coun-
`sel opined that “[b]y maintaining a continued official pres-
`ence as an [Air National Guard General Officer] in a
`workplace that he also utilized as a government contractor”
`and by “engaging in his official capacity as an [Air Force
`General Officer] with individuals with whom he also did
`business as a government contractor,” Col. Bader “perpet-
`uated his mantle of authority” as a general officer and took
`advantage of those relationships to advance the interests
`of his private employer. A.R. 369.
`In 2011 and 2012, Col. Bader “spent more than half of
`the time he was on orders . . . working issues with the [Na-
`tional Guard Bureau],” the same organization that “he
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`Case: 22-2203 Document: 37 Page: 16 Filed: 04/01/2024
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`16
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`BADER v. US
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`was . . . negotiating and facilitating profitable contracts
`with . . . on behalf of his private employer.” A.R. 369. His
`status throughout that time was unclear; one day he might
`walk into the building in a uniform and be a superior of-
`ficer; the next he would walk into the same building in a
`suit and contact the same individuals, purportedly in his
`civilian capacity.
`Col. Bader also participated in a meeting at the Air
`Combat Command at which topics regarding Remotely Pi-
`loted Aircraft were to be discussed, including a briefing of
`the Squadron Operation Centers study—the same study
`that was the subject of the 2012 contract with GMRE. His
`participation drew concern from the NGB Director for
`Plans and Requirements. It was unclear whether Col. Ba-
`der was there representing GMRE or in his military capac-
`ity. He also “addressed [Air Force] officials by their call
`signs” when discussing GMRE business and “assumed the
`leadership position at the head of the table” during a meet-
`ing he had convened as a civilian contractor to discuss
`GMRE business on at least one occasion. A.R. 370.
`The Inspector General “did not discover any evidence
`which indicated [Col.] Bader represented GMRE while on
`[active duty] as Brig. Gen. Bader.” J.A. 201. However,
`even though Col. Bader did not take these actions on the
`days when he was on active duty, the Inspector General’s
`Report of Investigation found “[t]he ‘blurring’ of [Col.] Ba-
`der’s military and civilian statuses supports the conclusion
`that he used the authority derived from this [National
`Guard Bureau] general officer status . . . and gave rise to
`the appearance of a genuine conflict of interest.” J.A. 201.
`The Report further found that the “appearance of impro-
`priety was substantial.” J.A. 203.
`II
`While Col. Bader does not challenge the factual find-
`ings of the Inspector General’s Report, he argues that
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`Case: 22-2203 Document: 37 Page: 17 Filed: 04/01/2024
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`BADER v. US
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`AFBCMR’s decision should be set aside for several reasons,
`none of which has merit.
`First, he argues that the failure of the criminal conflict
`of interest statute, 18 U.S.C. § 207(c), to specifically pro-
`hibit using public office for private gain means that such
`conduct is permissible. Appellant Opening Br. 42 (“By spe-
`cifically defining impermissible conduct, Congress left no
`room for the Correction Board to create a broader prohibi-
`tion under the military’s general authority to prevent use
`of public office for private gain.”). This specious argument
`finds no support in the statute. In fact, the legislative his-
`tory of this statute explicitly recognized the fact there are
`other, additional means to regulate conduct in this area
`and that, because this area is regulated by a variety of
`mechanisms, the criminal statute need not address every
`aspect of possible employee conduct. S. Rep. No. 87-2213,
`at 13 (1962) (“The committee considers that the additional
`provision included by the House falls principally within the
`field of legal ethics, where the present Canons of Ethics
`would seem to give adequate coverage.”) It was also noted
`that agencies promulgate their own regulations to govern
`conduct in addition to the statute. Id. at 10. Directly con-
`tradicting Col. Bader’s argument that this statute was
`somehow meant to set the outer bounds of prohibited con-
`duct, the statute wa