Voge v. U.S.

• Decision Date: 19 April 1988
• Docket Number: No. 87-1307,87-1307
• Citation: 844 F.2d 776
• Parties: Victoria M. VOGE, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 776

844 F.2d 776

Victoria M. VOGE, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 87-1307.

United States Court of Appeals, Federal Circuit.

April 19, 1988.

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 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 Because her clinical privileges had been revoked and she had received an adverse OFR for the period ending June 16, 1982, however, Voge's commanding officer recommended that her request for ASP for the year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 review the ASP denial decision for both substantive and procedural error and erred in refusing to order a variety of corrections to her personnel records, including the removal of adverse OFR's and the deletion of any reference to the revocation of her clinical privileges. She further asserts that the court erred in refusing to order that she be considered for retroactive promotion to captain. The government responds that the court had no jurisdiction to review the ASP denial decision beyond assuring the Navy had complied with its regulations in the process.

Discussion

The dispute centers on the scope of the Claims Court's ability to review a decision by the military to deny ASP to a medical officer. In particular, the question is whether the court may review the merits of an ASP denial or whether its authority extends only to procedural violations.

There is no dispute that the Claims Court had jurisdiction under the Tucker Act, 28 U.S.C. Sec. 1491(a)(1), to entertain this suit because the ASP statute, 37 U.S.C. Sec. 302, requires the payment of money to military medical officers. If a statute mandates payment by the government, the Tucker Act authorizes suit in the Claims Court. See, e.g., Skinner v. United States, 594 F.2d 824, 831 (Ct.Cl.1979). The argument is over the extent of the jurisdiction, Voge arguing that it extends to both procedural and substantive review of the ASP denial, the government that it stops once the procedural aspects have been examined.

I.

Starting with the area of common agreement, we concur that the Claims Court may review the ASP denial process for compliance with established procedures. In pertinent part, 37 U.S.C. Sec. 302(c)(2) says, "Under regulations prescribed by the Secretary of Defense ..., the Secretary of the military department concerned may terminate at any time an officer's entitlement to [ASP]." It has long been established that government officials must follow their own regulations, even if they were not compelled to have them at all, and certainly if directed to promulgate them by Congress, as in this case. See Service v. Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152, 1165, 1 L.Ed.2d 1403 (1957). Here, the Secretary of the Navy prescribed procedural regulations to be followed when terminating ASP. See 11 Cl.Ct. at 513. Because they apparently were violated, the Navy conceded that Voge was entitled to the full amount of ASP she had been denied. Absent this concession, the procedural regularity of the termination would have been fully reviewable in the Claims Court.

II.

The next question, the heart of this dispute, is whether the court may review the substantive merits of the decision to terminate ASP. Judicial deference must be "at its apogee" in matters pertaining to the military and national defense. Rostker v. Goldberg, 453 U.S. 57, 70, 101 S.Ct. 2646, 2654-55, 69 L.Ed.2d 478 (1981); see also Orloff v. Willoughby, 345 U.S. 83, 93, 73 S.Ct. 534, 539-40, 97 L.Ed. 842 (1953) ("judges are not given the task of running the Army"). Accordingly, "unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs." Department of Navy v. Egan, --- U.S. ----, 108 S.Ct. 818, 825, 98 L.Ed.2d 918 (1988).

In this case Congress statutorily entrusted the decision whether or not to terminate a medical officer's entitlement to ASP to the discretion of the military. Section 302 is clear and emphatic. It is even supported by the legislative history cited to us in an unnecessary effort to bolster the language of the statute. That section was "intend[ed] ... to provide authority for termination of those special pays [including ASP] ... similar to the authority provided by [37 U.S.C. Sec. 313(b) ]." H.R.Rep. No. 96-904, 96th Cong., 2d Sess. 9, reprinted in 1980 U.S.Code Cong. & Admin.News 1722, 1730. Under 37 U.S.C. Sec. 313 (1976) (repealed by Pub.L. No. 96-513, Title IV, Sec. 414(a), 94 Stat. 2906 (1980)), the payment of special pay was a matter left to the judgment of the Secretary who "could at any time terminate an officer's entitlement" to it. See Adair v. United States, 648 F.2d 1318, 1322, 227 Ct.Cl. 345 (1981).

The government proposes that judicial review is therefore foreclosed because of an absence of jurisdiction, as indeed it was in Adair with variable incentive pay (VIP), a form of special compensation to medical personnel similar to ASP. But here we have a statute which all agree mandates payment of ASP until discretion is exercised to deny or terminate it. Adair addressed a statute that did not require payment until a discretionary decision was taken to pay the VIP; it was not a money-mandating statute. See also Pardo v. United States, 648 F.2d 1330, 1333 (Ct.Cl.1981). What we face is a jurisprudential question: Can the Claims Court review the...