844 F.2d 776 (Fed. Cir. 1988), 87-1307, Voge v. United States

Docket Nº:87-1307.
Citation:844 F.2d 776
Party Name:Victoria M. VOGE, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
Case Date:April 19, 1988
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 776

844 F.2d 776 (Fed. Cir. 1988)

Victoria M. VOGE, Plaintiff-Appellant,

v.

UNITED STATES, Defendant-Appellee.

No. 87-1307.

United States Court of Appeals, Federal Circuit

April 19, 1988

Page 777

Eugene R. Fidell (argued), Klores, Feldesman and Tucker, Washington, D.C., for plaintiff-appellant.

John S. Groat (argued), Commercial Litigation Branch, Dept. of Justice, of Washington, D.C., for defendant-appellee. With him on the brief were Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director and M. Susan Burnett, Asst. Director. Also on the brief were LCDR Brian Robertson, LCDR Jan Rosen-Serafini and LT Mark Williams, Dept. of the Navy, of counsel.

Before MARKEY, Chief Judge, RICH and MAYER, Circuit Judges.

OPINION

MAYER, Circuit Judge.

This is an appeal from an order of the United States Claims Court, 11 Cl.Ct. 510 (1987), that awarded Commander Victoria M. Voge $30,000 in Additional Special Pay (ASP) but found no error in the preparation or content of Voge's military service records. We affirm the award of ASP, but vacate that portion of the order purporting to review Voge's service records.

Background

Voge, a medical doctor, was assigned to the Naval Regional Medical Center (NRMC) on Guam in 1981. Upon arrival, she was granted temporary clinical privileges as a flight surgeon. Clinical privileges typically "reflect a health care provider's qualifications for staff membership and define ... the procedures the practitioner may perform." Soon after her arrival, Voge's superiors began to express doubts about her medical competency. In 1982, her temporary clinical privileges were revoked and her application for permanent privileges was denied. Three adverse Officer Fitness Reports (OFR), covering periods between October 31, 1981 and March 31, 1983, referred to the revocation and ultimate denial of Voge's application for clinical privileges.

Also in 1982, Voge requested ASP, a form of remuneration that a medical officer normally receives after executing an agreement

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to remain on active duty for at least one year. See 37 U.S.C. Sec. 302(c)(1). Because her clinical privileges had been revoked and she had received an adverse OFR for the period ending June 16, 1982, however, Voge's commanding officer recommended that her request for ASP for the year ending June 30, 1983 be denied. A Medical Corps Officer Review Board approved, and recommended that she also be denied ASP for two additional years. Accordingly, Voge was denied ASP from July 1, 1982 until June 30, 1985. In addition, she was passed over for promotion to captain in 1986.

Voge sought relief from the Board for the Correction of Naval Records (BCNR). See 10 U.S.C. Sec. 1552. The Board recommended correction of portions of two adverse fitness reports but "concluded that the OFR's were otherwise not 'substantially erroneous or unfair' and that [Voge's] selection for promotion would have been 'unlikely' even with the corrections to her records." This was approved by the Secretary of the Navy. She then filed suit in the Claims Court seeking ASP from July 15, 1982 through June 15, 1985; review of evaluations made and decisions taken by military medical boards, committees and officers about her competence as a medical officer and correction of alleged errors in her OFR's and other records resulting from those activities; and an order requiring the Secretary of the Navy to consider her for retroactive promotion to the rank of captain with back pay and other benefits.

Because of apparent procedural errors in the action taken to deny ASP, the government conceded that Voge was entitled to the full amount of ASP she sought. Specifically, the government conceded that for "the period July 15, 1982, through June 30, 1983 ... a review board considered adverse information outside the scope of the information the board was to consider pursuant to the applicable regulation." Moreover, it acknowledged that for "the period July 1, 1983, through June 30, 1985, the cognizant official never made a discretionary determination to deny Voge ASP for that period, as is required by regulation."

Notwithstanding Voge's acknowledged entitlement to ASP, the government argued that the Claims Court had no jurisdiction to grant collateral relief by correcting Voge's military service records. In the government's view, the court could not "intrude into the [military's] discretionary matrix by examining the records that the review board considered."

The Claims Court considered the case on cross-motions for summary judgment. It ordered that the Navy pay Voge $30,000, an amount representing the ASP she had been denied and the Navy conceded she was due. It held, moreover, that it had jurisdiction to review Voge's service records pursuant to its review of the denial of ASP. However, the court found no error in the "preparation or content" of the OFR's that the BCNR refused to void, and said that Voge had no right to reconsideration of her nonselection for promotion to captain. Accordingly, the court denied any further relief.

On this appeal, Voge argues that the Claims Court has broad authority to...

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