Kreis v. Secretary of Air Force, 87-5037
| Decision Date | 07 February 1989 |
| Docket Number | No. 87-5037,87-5037 |
| Citation | 866 F.2d 1508 |
| Parties | John F. KREIS, Appellant, v. SECRETARY OF the AIR FORCE. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 85-01169).
Daniel M. Schember, Washington, D.C., for appellant.
Linda Halpern, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee. Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.
Before RUTH BADER GINSBURG, SILBERMAN and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge D.H. GINSBURG.
Appellant, John F. Kreis, challenges the corrective relief recommended by the Air Force Board for the Correction of Military Records and approved by the Secretary of the Air Force in connection with this effort to secure a military promotion. The district court dismissed appellant's complaint for lack of subject matter jurisdiction, concluding that the entire complaint raised nonjusticiable claims. 648 F.Supp. 383 (D.D.C.1986). We affirm in part, reverse in part, and remand for the district court to determine whether the Secretary's action was arbitrary or capricious.
At all relevant times, appellant was a major in the United States Air Force. In 1979, an Air Force Inspector General recommended that Major Kreis be reprimanded and reassigned "for acting inappropriately" while on an overseas military trip and "for making inappropriate comments to enlisted personnel about fellow and senior officers." The Inspector General did not consult Major Kreis during the preparation of the report but, instead, based his conclusions on third party sources.
Following receipt of this report, Lieutenant General Hughes, commander of the Pacific Air Force, cancelled Major Kreis's previously scheduled assignment to a position of greater responsibility at the headquarters of the Tactical Air Command; instead, he reassigned appellant to a squadron operations position with less responsibility, a position similar to one appellant had held when he was but a captain. As an "indorser" on appellant's Officer Effectiveness Report (OER), Lieutenant General Hughes also downgraded the enthusiastic evaluation that the initial "rater" had given Major Kreis. Finally, Lieutenant General Hughes issued a written reprimand to Major Kreis and placed this document in appellant's official file. After a meeting with appellant, however, Lieutenant General Hughes agreed to remove the reprimand from the file.
Through internal administrative procedures, Major Kreis then sought removal of Lieutenant General Hughes's evaluation from his OER or, alternatively, voidance of the entire OER. After receiving testimony, the Air Force Board for the Correction of Military Records, in 1980, concluded that appellant had "demonstrated the existence of probable error or injustice." The Board then stated:
[T]he evidence applicant has presented creates sufficient doubt in our minds that the contested report is an accurate reflection of his duty performance during that reporting period. However we do not feel that the evidence presented warrants a recommendation that the indorser's ratings and comments be voided. In an effort to solve this dilemma, and to afford applicant equity, we therefore recommend applicant's record be corrected by voiding the contested report.
The Assistant Secretary of the Air Force accepted this recommendation on behalf of the Secretary. Pursuant to Air Force regulations concerning voided OERs, the Assistant Secretary ordered that appellant's contested OER be removed and replaced with an AF Form 77 stating:
Shortly thereafter, a selection board considered but did not select appellant for promotion to lieutenant colonel. Appellant then submitted another application to the Board, in which he argued that the void created by removal of the OER and the prejudicial effect of the AF Form 77, combined with his 1979 reassignment to a position of reduced responsibility, had prejudiced his chances for promotion. Major Kreis requested that the Board not only void his recent nonselection for promotion but also award him retroactive promotion. The Board denied this application, stating that the AF Form 77 was not prejudicial; it did not separately address appellant's 1979 reassignment.
In 1983, appellant requested that the Board reconsider its denial of retroactive promotion. Appellant submitted additional evidence which, he claimed, demonstrated the prejudicial effect of his 1979 reassignment and voidance of his OER. In addition, he argued that prior Board cases involving awards of retroactive promotion were analogous to his own. During the pendency of this application, two more selection boards passed over Major Kreis for promotion.
Upon reconsideration, the Board reaffirmed its denial of retroactive promotion, stating that the reason for appellant's nonselection "cannot be definitively ascertained" and that the evidence submitted did not "conclusively prove" that appellant would have been promoted but for the events of 1979. The Board added that the evidence was not "sufficiently compelling to warrant a definitive finding that applicant's change in assignment was due to the results of the [Inspector General's] investigation."
In 1984, Major Kreis again sought reconsideration by the Board. This time he asked the Board to recommend restoration of his voided OER, with Lieutenant General Hughes's evaluation deleted, as well as retroactive promotion. In the alternative, Major Kreis asked the Board to recommend that the Secretary void appellant's nonselections for promotion and refer his record to special selection boards, accompanied by a statement that "[t]he OERs before and after the voided report are more characteristic of the quality of Major Kreis' performance during the rating period [covered by the voided report]" and that Major Kreis "should have been assigned," in 1979, to a position of increased responsibility at the Tactical Air Command.
In 1986, the Board granted appellant's application, in part, recommending that the Secretary reinstate the rater's portion of the OER without Lieutenant General Hughes's comments. With respect to appellant's further request for retroactive promotion, however, the Board emphasized that "[t]he function of a selection board is highly discretionary" and reiterated that "the specific reason for an officer's nonselection [for promotion] cannot be definitively ascertained." For this reason, a recommendation of promotion is not warranted, it said, except to correct an "egregious" error or injustice.
The Board then concluded that:
[T]he possible injustice of applicant's reassignment in 1979 (which has not been firmly established to our satisfaction) and the presence of the properly prepared AF Form 77 ... in applicant's selection folder does not establish a promotion injustice of such a magnitude warranting promotion by this Board.
The Board did not address appellant's alternative request for insertion of a statement in his record to indicate that his 1979 reassignment had resulted from "error and injustice," presumably due to its earlier finding that appellant had failed to show that the Inspector General's investigation had caused the reassignment. The Board did, however, recommend that Major Kreis be reconsidered for promotion, based on his corrected record, by special selection boards for each of the years 1980 to 1985. The Secretary accepted the Board's recommendations. Each of the special selection boards then considered but did not select Major Kreis for promotion to lieutenant colonel.
In a complaint filed against the Secretary before the Board issued its recommendations in 1986, appellant argued that he was entitled to retroactive promotion "[u]nder principles established by prior Correction Board cases." In the alternative, he requested "voidance of his passovers, insertion in his record of a fully adequate statement overcoming the prejudice of his unjust OER void [sic] and 1979 reassignment, and referral of his corrected record to special selection boards for promotion consideration." In the event that the Secretary failed to provide "adequate" relief, appellant called upon the court to declare the Secretary's action "arbitrary and capricious," and to order the Secretary "to state reasoned conclusions on all relevant legal issues, to apply the proper standard of review, to articulate the principles determining the circumstances in which retroactive promotion is a proper Correction Board remedy, and to determine whether under those principles that remedy is appropriate in this case."
The Secretary moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief may be granted. In terms more appropriate to a Rule 12(b)(1) motion, however, the Secretary argued that appellant's claims are not justiciable and that the district court should therefore dismiss the case for lack of jurisdiction.
After the Board had issued its recommendations, the district court granted the Secretary's motion to dismiss. On authority of Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), the court held that appellant's complaint is nonjusticiable, reasoning that the relief sought therein would require the court "to substantially interfere in such a manner as to seriously impede the Air Force in the performance of its vital duty of conducting the orderly process of promotion and advancement of personnel." 648 F.Supp. at 386.
The justiciability of this case involving a claim to a military...
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