Adair v. United States, 541-76

• Decision Date: 06 May 1981
• Docket Number: 286-78,87-79C and 139-79C.,No. 541-76,461-78,541-76
• Parties: Norman E. ADAIR et al. v. The UNITED STATES.
• Court: U.S. Claims Court

648 F.2d 1318

Norman E. ADAIR et al. v. The UNITED STATES.

Nos. 541-76, 286-78, 461-78, 87-79C and 139-79C.

United States Court of Claims.

May 6, 1981.

Jeffrey M. Glosser, Washington, D. C., atty. of record, for plaintiff. Kaufmann, Glosser & Greenburg, P.C., Washington, D. C., of counsel.

Glenn E. Harris, New York City, with whom was Asst. Atty. Gen. Alice Daniel, Washington, D. C., for defendant.

Before FRIEDMAN, Chief Judge, and KUNZIG and BENNETT, Judges.

ON PARTIES' EXCEPTIONS TO THE TRIAL JUDGE'S REPORT

KUNZIG, Judge.

In these five consolidated pay cases,¹ plaintiffs are some 220 Public Health Service (PHS) physicians who claim entitlement to so-called "variable incentive pay" (VIP) under 37 U.S.C. § 313 (1976). The Government, relying on United States v. Testan (Testan)² contends that we lack jurisdiction to entertain this suit because of plaintiffs' failure to show any substantive right to receive money presently due. Plaintiffs rejoin by labeling the Government's contention as a "rather extravagant reading of Testan." Arguing that the regulations which excluded them from receiving VIP are inconsistent with the intent of § 313, plaintiffs conclude that Testan "simply does not apply in the case at bar." We find plaintiffs' argument unpersuasive and hold for the Government.³

I.

Plaintiffs, all highly trained medical specialists, voluntarily enrolled in certain of the following PHS programs: Senior Commissioned Officer Student Training and Extern Program (COSTEP); Commissioned Officer Residency Deferment Program (CORD); and PHS/NIH Associates Program (Associates). These programs were recruiting mechanisms which enabled PHS to obtain highly qualified physicians for certain government positions. As members of the COSTEP, CORD or Associates programs, plaintiffs received various benefits such as financial assistance in completing the fourth year of medical school (COSTEP), deferment from the Selective Service (CORD), and investigative and experimental research opportunities (Associates).⁴

In 1974, P.L. 93-274 was enacted into law,⁵ amending title 37, United States Code, by adding § 313. Section 313 authorized the Secretaries of the Department of Defense (DOD) and Health, Education and Welfare (HEW)⁶ to grant variable incentive pay, in limited circumstances, to both military and PHS physicians.⁷ Section 313, as then pertinent, provided as follows:⁸

§ 313. Special pay: medical officers who execute active duty agreements.

(a) Under regulations prescribed by the Secretary of Defense or by the Secretary of Health, Education, and Welfare, as appropriate, and approved by the President, an officer of the Army or Navy in the Medical Corps, an officer of the Air Force who is designated as a medical officer, or a medical officer of the Public Health Service, who —

(1) is below the pay grade of 0-7;

(2) is designated as being qualified in a critical specialty by the Secretary concerned;

(3) is determined by a board composed of officers in the medical profession under criteria prescribed by the Secretary concerned to be qualified to enter into an active duty agreement for a specified number of years;

(4) is not serving an initial active duty obligation of four years or less or is not serving the first four years of an initial active duty obligation of more than four years;

(5) is not undergoing intern or initial residency training; and

(6) executes a written active duty agreement under which he will receive incentive pay for completing a specified number of years of continuous active duty subsequent to executing such an agreement;

may, upon acceptance of the written agreement by the Secretary concerned, or his designee, and in addition to any other pay or allowances to which he is entitled, be paid an amount not to exceed $13,500 for each year of the active duty agreement. * * *⁹

Pursuant to § 313, the Secretary of HEW promulgated regulations which defined an "initial active duty obligation of four years or less, or the first four years of an initial active duty obligation of more than four years" to include COSTEP and CORD physicians. 37 U.S.C. § 313(a)(4). As such, these physicians were precluded from receiving VIP. Similarly, these regulations were interpreted by the Secretary to render Associates ineligible for VIP.¹⁰

Plaintiffs, serving on active duty for varying lengths of time during the period subsequent to the enactment of § 313, claimed entitlement to VIP on the grounds that other PHS physicians performing duties of equal or lesser responsibility were receiving these benefits. Because of plaintiffs' membership in the COSTEP, CORD or Associates programs, they were denied VIP. Plaintiffs timely filed suit in this court seeking the award of VIP in the amount and for the period of time to be determined in accordance with the facts of each respective plaintiff.¹¹

The Government essentially bases its argument on the Testan case and contends, inter alia, that § 313 is not a "money mandating" statute which would give this court jurisdiction to grant relief under a statute. 28 U.S.C. § 1491 (1976) (Tucker Act). The Government continues that even if this court assumes arguendo that the regulations denying plaintiffs VIP are inconsistent with the statute, § 313 nevertheless lacks the "money mandating" element required by Testan.

Plaintiffs, on the other hand, attempt to counter the Government's Testan analysis by attacking the PHS regulations that exclude them from receiving VIP benefits. They argue that since such regulations are invalid, they are entitled to a money judgment. The Testan case, plaintiffs contend, therefore does not apply in the instant matter. Because we find plaintiffs' analysis inapposite to the matter before us, we hold for the Government.

II.

Plaintiffs filed in this court under the Tucker Act, 28 U.S.C. § 1491 (1976), which provides in pertinent part:

The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. * * *

It is the holding of the Testan case that the Tucker Act is purely jurisdictional and does not create any substantive rights against the United States for money damages — it merely confers jurisdiction on the Court of Claims whenever the substantive right exists. Testan, 424 U.S. at 396, 96 S.Ct. at 952. In the course of its opinion, the Supreme Court stated:

The Tucker Act, of course, is itself only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages. The Court of Claims has recognized that the Act merely confers jurisdiction upon it whenever the substantive right exists. Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 605-607, 372 F.2d 1002, 1007-1009 (1967). We therefore must determine whether the two other federal statutes that are invoked by the respondents confer a substantive right to recover money damages from the United States for the period of their allegedly wrongful civil service classifications.

Id. at 398, 96 S.Ct. at 953.

The Court then went on to hold that the existence of a right to money damages in that case depended on whether the Classification Act ("equal pay for substantially equal work"),¹² could be "fairly interpreted as mandating compensation by the Federal Government for the damage sustained." Id. at 401, 96 S.Ct. at 954, citing Eastport Steamship Corp. v. United States, 178 Ct.Cl. at 607, 372 F.2d at 1008-1009. The Court concluded that the Act nowhere "makes the United States liable for pay lost through allegedly improper classification." Id. at 399-400, 96 S.Ct. at 954.¹³

It is implicit in the holding of Testan that a statute providing for solely discretionary payment of money does not give rise to a "right to recover money damages from the United States." Id. In our recent military Corrections Board case of Skinner v. United States, 219 Ct.Cl. 322, 594 F.2d 824 (1979), we were presented with a situation where the statute involved, 37 U.S.C. § 204 (1976), conferred on an officer the "right to pay of the rank he was appointed to up until he is properly separated from the service." If it was found that the officer was improperly separated, e. g., defective OER(s) and passovers, then § 204 absolutely entitled him to back pay. Thus in Skinner, the statute provided for mandatory relief upon proof of the existence of certain conditions. We held that this was the jurisdictional prerequisite. Here, by contrast, neither § 313 nor the regulations promulgated thereunder provide for mandatory payment of money to physicians under the circumstances which allegedly exist. Section 313(b), the next section of the statute after the one quoted above, provides that, under regulations he may prescribe, the Secretary may at any time terminate any officer's entitlement to VIP. Cf. German v. United States, 225 Ct.Cl. ___, 633 F.2d 1369 (1980). If this can happen to one who has previously qualified and received a signed agreement, it is hardly consistent to suppose Congress ever intended any vested entitlement for one who has not satisfied all these prerequisites.¹⁴

The facts show that under the provisions of § 313 Congress established a discretionary mechanism by which the Secretaries of DOD and HEW could offer pecuniary bonuses in recruiting physicians for various government positions. If the Secretaries, acting through boards composed of officers in the medical profession, determined that particular vacancies could be filled without offering VIP, then it was not necessary to provide VIP as an incentive. 37 U.S.C. § 313(a)(3). "This authority would be used in varying amounts by the Defense Department or PHS as the need dictates and would be used only where necessary to meet shortages of...