295 F.3d 1252 (Fed. Cir. 2002), 02-5015, Lindsay v. U.S.

Docket Nº:02-5015.
Citation:295 F.3d 1252
Party Name:Daniel A. LINDSAY, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
Case Date:June 27, 2002
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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295 F.3d 1252 (Fed. Cir. 2002)

Daniel A. LINDSAY, Plaintiff-Appellant,

v.

UNITED STATES, Defendant-Appellee.

No. 02-5015.

United States Court of Appeals, Federal Circuit

June 27, 2002

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William S. Aramony, Law Office of William S. Aramony, of Alexandria, Virginia, argued for plaintiff-appellant.

David D'Alessandris, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director; and James M. Kinsella, Deputy Director. Of counsel on the brief was Captain Ira Perkins, United States Air Force, of Arlington, Virginia.

Before CLEVENGER, BRYSON and PROST, Circuit Judges.

CLEVENGER, Circuit Judge.

Daniel Lindsay appeals the decision of the Court of Federal Claims dismissing his challenge to actions by the United States Air Force that led to his involuntary separation from service; namely, particular Officer Evaluation Reports prepared in 1986, his subsequent nonselections for promotion to Major and Lieutenant Colonel, and the refusal of the Air Force Board for Correction of Military Records to void either the contested reports or his nonselections. The Court of Federal Claims held that Lindsay's complaint failed to state a claim upon which relief can be granted in that it presented a nonjusticiable challenge to discretionary military functions, or, in the alternative, that Lindsay had failed to set forth a sufficient connection between the alleged errors in his records and his non-selection for promotion. We hold that Lindsay presents a justiciable challenge grounded on the alleged failure of the Air Force to follow its own procedural regulations. We further hold that Lindsay's allegations, if proven, would set forth enough material to impel a further inquiry into the relationship between the alleged errors and his nonselection, and therefore vacate the dismissal of his complaint.

BACKGROUND

Appellant Daniel Lindsay served in the United States Air Force from 1978 to 1994, after having been honorably discharged and transferred from the Army, where he served from 1976 to 1978. He served in the Air Force Reserve from 1978 to 1985, earning the rank of Captain and the Aeronautical Rating of Navigator, and was integrated into the Regular Air Force in 1985.

In 1986, then-Captain1 Lindsay was a navigation instructor with the Technical Assistance Field Team (TAFT), 966 Airborne Warning and Control (AWAC) Training Squadron, based at Tinker Air Force Base in Oklahoma. Under an arrangement approved in 1981, the United States had agreed to sell $8.5 billion worth

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of AWACS radar surveillance aircraft and refueling aircraft to Saudi Arabia. Lindsay's duties with the TAFT included instructing Royal Saudi Air Force (RSAF) personnel to operate the AWACS aircraft before the first planes were delivered to Saudi Arabia in June 1986.

During this assignment, Lindsay experienced difficulties with a particular RSAF trainee, a Hyer of considerable family political influence but allegedly lesser navigational skills. According to Lindsay's superior, Major McMaster, this particular RSAF trainee resented being assigned an instructor he outranked, and proved uncooperative during training, frequently arriving late or not at all for flight briefings. After the TAFT team deployed to Saudi Arabia to complete the training, this RSAF officer reportedly threatened to have various TAFT personnel, contractors, and third-country nationals expelled from Saudi Arabia, and eventually left the AWACS program.

Lindsay, however, did not deploy to Saudi Arabia with the rest of the TAFT. Allegedly due to the political influence exerted by the RSAF trainee's family, the Saudi chief of the AWACS program requested that Lindsay be replaced with another instructor before the team came to Saudi Arabia, because "Capt. Dan Lindsay is too young in his experience to be able to do full justice to his appointment in the Kingdom." As a result of this request, Lindsay was removed from his assignment and remained at Tinker Air Force Base in Oklahoma, while the rest of the TAFT—including the two officers above him in the chain of command, Major McMaster and McMaster's superior, Major Morris—was deployed to Saudi Arabia.

Lindsay received an Officer Effectiveness Report (OER) for the period of September 1985 to May 1986, during which these events took place. At this time, the preparation of OERs was governed by Air Force Regulation (AFR) 36-10 (1982), as amended in 1985. AFR 36-10 specified that three officers were to sign a ratee's OER: a rater, an additional rater, and an indorser. These three officers occupied successively higher positions in the "rating chain," which was usually the same as the chain of supervision. Thus, the rater (who prepared most of the evaluation) was usually the officer's immediate supervisor, while the role of additional rater was to be filled by the rater's rater, i.e., the officer two levels above the ratee in the rating chain. Thus, in May of 1986, the persons designated by AFR 36-10 to be Lindsay's rater and additional rater were, respectively, Major McMaster and Major Morris.

The third officer to sign an OER was the "indorser," by default the additional rater's rater (three levels above the ratee in the chain). However, the indorser was permitted to defer to a person higher in the rating chain if desired, in which case the person deferred to became the indorser. According to Lindsay, the level at which an OER was indorsed was a critical marker of an OER's favorability, and an OER indorsed at a low level was a clear "do not promote, signal" to subsequent selection boards.

Because the rest of the TAFT deployed to Saudi Arabia in May of 1986, Lindsay's immediate superior and rater, Major McMaster, submitted his comments in draft and signed the OER form in blank. McMaster later stated that certain portions of his comments were not transcribed correctly onto Lindsay's final OER, although those errors were subsequently corrected.

McMaster's rater was Major Morris (also deployed to Saudi Arabia), and above Morris in the reporting chain were three officers who remained stationed in Oklahoma: Major Slagle (Operations Officer of

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the 966 AWAC Training Squadron), Lt. Colonel O'Neill (Commander of the Squadron), and Colonel Sterk (Commander, 552 AWAC Wing). Lindsay's May 1986 OER was signed by Major Slagle as additional rater, and by Colonel Sterk as indorser. Lindsay's complaint alleged that the presence of Major Slagle—who was three steps higher in the rating chain than Lindsay— as his additional rater violated AFR 36-10. AFR 36-10 required that the additional rater be the rater's rater (i.e., two steps higher than Lindsay in the rating chain) "or someone lower in the rating chain when deemed appropriate." Thus, Major Morris, the officer who recommended that Lindsay be removed from the TAFT, would ordinarily have been the additional rater. At least for purposes of this appeal, the government does not contest that Lindsay's OER was written in violation of Regulation 36-10.

Although Slagle made positive comments on Lindsay's OER, he, and his superior, Lt. Colonel O'Neill, later stated that they did not recommend Lindsay's OER for a high level of indorsement. Allegedly on account of these recommendations, Colonel Sterk, an 0-6 grade officer, signed Lindsay's May 1986 OER rather than passing it to a higher level officer for indorsement. According to Lindsay, this low level of indorsement, a steep decline from the 0-8 officers who had indorsed his two previous OERs and the 0-9 and 0-7 officers who indorsed subsequent OERs, had extraordinarily damaging consequences for his promotion prospects. Further damaging in Lindsay's view was Sterk's final recommendation—"Promote"—which, along with other language only moderately praising Lindsay's abilities, was allegedly an unambiguous "do not promote" recommendation.

Although Lindsay also alleged that his October 1986 OER was closed out without all facts available to the indorser (an 0-7), Lindsay alleges that his May 1986 OER was primarily responsible for his being passed over for promotion to Major in December 1986, when 85 percent of his peer Navigators were selected for promotion. According to Lindsay, the consequences of such a passover—even though Lindsay was promoted to Major by his next selection board in 1987—were devastating. Although Lindsay's next board selected him "above zone" for promotion to Major, Lindsay was not selected for promotion to Lieutenant Colonel by his next board in November 1992. Lindsay claims that his previous above-zone promotion, as well as the continued presence of the 1986 OERs in his records, handicapped him in comparison to other candidates who had been promoted to Major the first time, from within the zone. Major Lindsay was considered for above zone promotion to Lieutenant Colonel in October 1993 by a second board, which selected only one percent of the "above zone" Navigators for promotion. Major Lindsay was not one of these one percent, and his second failure of selection for promotion compelled him to retire from the Air Force in 1994.

Immediately after his retirement, Lindsay petitioned the Air Force Board for Correction of Military Records (AFBCMR) to void his May 1986 and October 1986 OERs, and for retroactive promotion to Major in 1986. The AFBCMR denied his petition as untimely. Upon repetition to the AFBCMR—in which Lindsay (now represented by counsel) also sought promotion to Lieutenant Colonel and reinstatement—the Board found that "it would be in the interest of justice to excuse the failure to timely file." However, the Board found...

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