Adkins v. U.S.

• Citation: 68 F.3d 1317
• Decision Date: 17 October 1995
• Docket Number: No. 94-5029,94-5029
• Parties: Terrence L. ADKINS, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 1317

68 F.3d 1317

Terrence L. ADKINS, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.

No. 94-5029.

United States Court of Appeals, Federal Circuit.

Oct. 17, 1995.

Rehearing Denied Feb. 7, 1996. ^*

Barry P. Steinberg, Jordan, Coyne & Savits, Washington, DC, argued for plaintiff-appellant. Of counsel, Jayson L. Spiegel.

Frank W. Hunger, Assistant Attorney General, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC. John S. Groat, Attorney, argued for defendant-appellee. Of counsel, David M. Cohen, Director, James M. Kinsella, Assistant Director.

Before NIES, MAYER, and SCHALL, Circuit Judges.

SCHALL, Circuit Judge.

Appellant, Terrence L. Adkins, a retired lieutenant colonel in the United States Army, appeals from the October 28, 1993 judgment of the United States Court of Federal Claims, dismissing his complaint on the ground of nonjusticiability. Adkins v. United States, 30 Fed.Cl. 158 (1993). In his complaint, Adkins challenged the decision of the Secretary of the Army ("Secretary") rejecting the recommendations of the Army Board for Correction of Military Records ("ABCMR" or "Board") that certain material be removed from Adkins's Official Military Personnel File ("OMPF") and that all obstacles to Adkins's restoration to the 1988 Colonel Army Promotion List be removed. The Secretary had removed Adkins from the promotion list based upon the recommendation of the Army's Promotion Review Board ("PRB"). In the Court of Federal Claims, Adkins sought reinstatement to active duty, back pay and allowances, and an order directing the Secretary to promote him to colonel. In addition to urging affirmance, the government contends that the court lacked jurisdiction to adjudicate Adkins's claims. We conclude that the Court of Federal Claims has jurisdiction and that, to the extent indicated below, Adkins has presented a

justiciable controversy. Accordingly, we affirm-in-part, reverse-in-part, and remand.

BACKGROUND

The pertinent facts are not in dispute. Adkins was selected for promotion to colonel from the 1988 Colonel Army Promotion List. 30 Fed.Cl. at 159. At the time the selection board chose him for promotion, however, it was unaware of certain facts. First, prior to Adkins's selection, the Army had conducted an investigation pursuant to Army Regulation ("AR") 15-6 into Adkins's alleged falsification of his Medical Flight Status. This investigation led to a letter of reprimand. Id. Second, the selection board did not have before it two Officer Evaluation Reports ("OERs"). One was for the period from November 19, 1987, to May 1, 1988, and contained negative comments about Adkins's ethics, judgment, and command skills. Id. The other was a "relief for cause" OER for the period from May 2, 1988, to June 27, 1988, which Adkins received upon being relieved of his command. Id. Finally, between June 1988 and July 1988, Adkins was the subject of an AR 15-6 investigation relating to an aircraft accident. This second investigation also led to a letter of reprimand. Id.

Eventually, the PRB discovered these oversights. As a result, on December 12, 1988, after the United States Senate had confirmed his promotion to colonel, the Promotions Branch of the Army Personnel Command advised Adkins that the PRB would reconsider his promotion list status. Id. When it subsequently met, the PRB had before it the two adverse OERs and the two investigative reports noted above. Upon reconsideration, the PRB recommended that the Secretary remove Adkins from the Colonel Army Promotion List. Id.

In the interim, Adkins had appealed the negative OERs to an Officer Special Review Board, which removed the "intermediate rater" and "senior rater" portions of the first OER and substituted a redacted OER in Adkins's OMPF. ¹ Id. However, the PRB did not consider the redacted OER, and in rendering its reconsideration decision removing Adkins from the promotion list instead relied on the original November 19, 1987, to May 1, 1988, OER. Id. For that reason, the Secretary deferred decision on the PRB's recommendation and directed that a second PRB consider Adkins's promotion list status using the redacted OER. Id. The Secretary also directed the PRB to remove the "relief for cause" OER from Adkins's OMPF. Id.

The second PRB had before it the rater portion of the first OER and the reports from the two AR 15-6 investigations that had resulted in letters of reprimand. Id. Based on this information, the second PRB also recommended, on June 26, 1991, that Adkins be removed from the Colonel Army Promotion List. Id. The Secretary removed Adkins from the promotion list on July 22, 1991. Id.

In due course, Adkins appealed the remaining negative information in his OMPF to the ABCMR. In a decision dated October 9, 1991, the Board agreed that the rater portion of the first OER did not represent a "fair, objective and valid appraisal" of his performance. Id. Regarding the AR 15-6 investigations, the Board was not convinced that Adkins had failed to demonstrate the professional ethics required for promotion to colonel, and in fact was persuaded "based on the applicant's overall record, ... that he could and would serve the Army well as a colonel." Accordingly, the Board recommended that "all of the Department of the Army records related to [the] case be corrected: first, by voiding the rater's portion of the first OER; second, by removing the OER from Adkins's OMPF; and third, by removing all obstacles to [Adkins's] restoration to the FY1988 Colonel, Army Promotion List, including any references in his Official Military Personnel File to the Army Regulation 15-6 investigations conducted in August-October 1987 and in June-July 1988." Id.

Before the Secretary had acted on the ABCMR's recommendations, however, the Army Personnel Command notified Adkins on March 18, 1992, that he had been selected for mandatory early retirement pursuant to Following his retirement, Adkins brought suit challenging the Secretary's action in the United States District Court for the Eastern District of Virginia. That court transferred the suit to the Court of Federal Claims, where Adkins filed an amended complaint on March 12, 1993. Id. In his amended complaint, Adkins alleged that, "[w]hile awaiting the Secretary's implementation of the ABCMR recommendation that he be promoted," he was compelled to submit his request for voluntary retirement because otherwise he would have been involuntarily retired, "which would have adverse connotations for employment consideration." Adkins claimed that the Secretary's rejection of the recommendations of the ABCMR was "arbitrary, capricious and without foundation in law or fact." He sought reinstatement to active duty, back pay and allowances, and an order directing the Secretary to promote him to colonel as of February 1, 1990.

                10 U.S.C. Secs. 638, 638a (1994) because he had been passed over for promotion to colonel and was not presently on a promotion list. 2  The notice stated that Adkins's retirement date would be August 31, 1992, unless he voluntarily selected an earlier date.  Thereafter, on March 25, 1992, pursuant to AR 635-100, p 4-13, 3 and as authorized by 10 U.S.C. Sec. 3911 (1994), 4 Adkins requested "voluntary retirement" effective July 1, 1992, which date he later changed to August 1, 1992.  On May 28, 1992, the Secretary rejected the recommendations of the ABCMR and enforced the recommendation of the second PRB to remove Adkins from the Colonel Army Promotion List.  Id. at 160.   Adkins was thereafter retired on his selected date.  Id
                

The government filed a motion to dismiss for failure to state a claim upon which relief could be granted, which the Court of Federal Claims treated as a motion for summary judgment. Id. at 158 n. 1. In ruling on the motion, the court concluded that it had jurisdiction to hear Adkins's claim because his retirement was, in legal effect, involuntary, despite Adkins's representation that it was "voluntary" in his retirement request. ⁵ Id. at 161-62. Having determined jurisdiction was appropriate, however, the court held that Adkins's claim presented a nonjusticiable political question. The court believed that that result was compelled in view of the deference traditionally accorded by the judiciary to military decisions, and in view of the fact that there were no judicially discernible standards by which to judge the Secretary's conduct. Id. at 164. Accordingly, the court dismissed Adkins's complaint. Id.

DISCUSSION

I. Jurisdiction

A.

"[J]urisdiction being a question of law," Transamerica Ins. Corp. v. United Adkins alleged jurisdiction under the Tucker Act, ⁶ pursuant to which he was required to assert a claim against the government under a "money-mandating" constitutional provision, statute, or regulation. United States v. Connolly, 716 F.2d 882, 886-87 (Fed.Cir.1983) (en banc). Prior to his retirement, Adkins was entitled to basic pay as "a member of a uniformed service who is on active duty." 37 U.S.C. Sec. 204(a)(1) (1988). If his discharge was involuntary and improper, Adkins's statutory right to pay was not extinguished, and thus serves as a basis for Tucker Act jurisdiction. See, e.g., Sargisson v. United States, 913 F.2d 918, 920 (Fed.Cir.1990); Heisig v. United States, 719 F.2d 1153, 1155 (Fed.Cir.1983). If, however, Adkins's retirement was "voluntary," he retained no statutory entitlement to compensation, and thus no money-mandating provision would support Tucker Act jurisdiction over his claim. See Sammt v. United States, 780 F.2d 31, 32 (Fed.Cir.1985). We agree with the Court of Federal Claims that Adkins's retirement was involuntary, and that it therefore had jurisdiction over his claim.

States, 973 F.2d 1572, 1576 (Fed.Cir.1992), we exercise complete and independent review of the Court of Federal Claims' conclusion that it had jurisdiction to entertain Adkins's claim. See also Coastal Corp. v. United States, 713 F.2d 728, 730 (Fe...