Barber By and Through Barber v. United States

• Decision Date: 07 April 1982
• Docket Number: No. 132-80C.,132-80C.
• Citation: 676 F.2d 651
• Parties: Kimberly Pokmi BARBER, a minor, By and Through her parent, Yong Cha BARBER, and Yong Cha Barber v. The UNITED STATES.
• Court: U.S. Claims Court

676 F.2d 651

Kimberly Pokmi BARBER, a minor, By and Through her parent, Yong Cha BARBER, and Yong Cha Barber v. The UNITED STATES.

No. 132-80C.

United States Court of Claims.

Decided April 7, 1982.

James C. Hagedorn, Sacramento, Cal., attorney of record, for plaintiffs.

Louis R. Davis, Washington, D. C., with whom was Asst. Atty. Gen., J. Paul McGrath, Washington, D. C., for defendant.

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

ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

BENNETT, Judge.

This military pay case is before the court on cross-motions for summary judgment by the parties. The question presented is whether the Air Force Board for the Correction of Military Records (the board) properly determined that plaintiffs were not entitled to recover survivors' annuity benefits under the Survivor Benefit Plan. 10 U.S.C. §§ 1447-1455 (1976 & Supps.). We have concluded that the board's determinations were erroneous and that plaintiffs are entitled to relief.

Plaintiffs Yong Cha Barber and Kimberly Pokmi Barber are the widow and surviving dependent child, respectively, of Air Force T. Sgt. Charles E. Barber, a career serviceman. The Barbers were married on July 26, 1972, in Seoul, South Korea, with Sergeant Barber formally adopting Yong Cha's daughter, Kimberly.

On March 10, 1976, prior to his retirement from the Air Force, Sergeant Barber was counseled on the facets of the Survivor Benefit Plan (the plan). Under the plan, the monthly retired pay of a participating retired serviceman is reduced by an amount determined prior to retirement and this sum goes to fund an annuity paid to the widow and surviving dependent children upon the serviceman's death. Participation in the plan is automatic for servicemen who are married or have dependent children at the time they become eligible for retired pay, unless such servicemen elect not to participate in the plan before the first day for which they are eligible for retirement pay. 10 U.S.C. § 1448(a). Should a serviceman elect not to participate in the plan at the maximum level, his spouse is required by the statute to be notified of such election.¹ The regulation implementing the statute requires that the notification to the spouse be made in writing.² At the time of his counseling, Sergeant Barber executed a copy of Department of Defense form 1883 indicating that it was his desire to provide full plan coverage for his family.

On April 29, 1976, Sergeant Barber executed a second form 1883 electing not to participate at all in the plan. At that time, he submitted a letter of explanation stating his belief that participation in the plan with its attendant reduction in his monthly retired pay would impose a financial hardship on him and his family.³

On the following day, April 30, 1976, Sergeant Barber was released from active duty in the Air Force. He entered into retired status on May 1, 1976. Some 15 months later, on or about July 30, 1977, Sergeant Barber died from carbon monoxide poisoning.

When plaintiffs applied for survivor benefits under the plan, they were informed of Sergeant Barber's election out of the plan. On December 19, 1978, plaintiffs applied to the board seeking correction of Sergeant Barber's military records to reflect their entitlement to full survivor annuity benefits. Alleging that they had received no notification from the Air Force as to Sergeant Barber's decision, plaintiffs sought to void his election not to participate in the plan and to reinstate his original decision to provide full plan coverage.

The board denied plaintiffs' application for relief on November 14, 1979. This suit followed seeking reversal of the board's decision.

The gist of plaintiffs' position before this court is that Sergeant Barber's attempt to elect out of the Survivor Benefit Plan was improperly effected because they were never notified of his intentions. According to plaintiffs, since the plan provides for automatic coverage of the spouse and dependent children unless an election not to participate is made and since notice to the spouse of such an election is statutorily required, failure to give notice invalidates the election and restores full coverage under the plan. Plaintiffs cite the legislative history of the Survivor Benefit Plan to support this result.

The defendant counters by disputing the allegations made by plaintiffs that the Air Force violated the notice requirement of section 1448(a). Defendant further maintains that this court lacks jurisdiction in this matter because plaintiffs' claim sounds in tort and because plaintiffs have not predicated their claim on a statute which provides for a money judgment.

This court may only overturn a decision of a correction board when the decision is clearly unsupported by substantial evidence or when there is a noncompliance with applicable laws and regulations. Jordan v. United States, 205 Ct.Cl. 65, 72-73 (1974); Ward v. United States, 178 Ct.Cl. 210, 216-17 (1967). While plaintiffs' petition addresses these standards in only the most general fashion, we interpret the allegations therein to say that the board committed legal error in its interpretation of section 1448(a) as applied to this case. However, before considering whether reversal of the board's decision is warranted, we must first turn our attention to the threshold question of jurisdiction.

Our jurisdictional statute, 28 U.S.C. § 1491 (1976), has been construed to limit the scope of our review to suits in which a plaintiff seeks and can seek a money judgment. Austin v. United States, 206 Ct.Cl. 719, 723, cert. denied, 423 U.S. 911, 96 S.Ct. 215, 46 L.Ed.2d 140 (1975). In order to state a claim within the jurisdiction of this court, a plaintiff must assert a substantive right enforceable against the United States for money damages. United States v. Testan, 424 U.S. 392, 397-98, 96 S.Ct. 948, 952-53, 47 L.Ed.2d 114 (1976); United States v. King, 395 U.S. 1, 2-3, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969). In other words, the claimant must rely upon a particular statutory provision which grants, either expressly or by implication, "a right to be paid a certain sum." Eastport S.S. Co. v. United States, 178 Ct.Cl. 599, 605, 372 F.2d 1002, 1007 (1967).

Defendant challenges the present action on the ground that 10 U.S.C. § 1448(a), the statute relied upon by plaintiffs, does not command the payment of money to them under the circumstances alleged in their petition. Our review of the history and purpose of the Survivor Benefit Plan leads us to a different conclusion. We believe that a violation of section 1448(a) can be fairly said to give rise to a claim for money damages.

The articulated purpose of the Survivor Benefit Plan was to establish a system of survivor benefits for the survivors of military retirees.⁴ This system was intended to correct an anomaly in the otherwise comprehensive military benefits program which left survivors of retired military personnel without any source of income if a retired serviceman died from nonservice-connected causes.⁵ Under the statutory scheme, the rights of these survivors are protected through compulsory participation in the plan by each person entitled to retired pay, unless that person affirmatively chooses not to participate. Section 1448(a). The payment of a monthly annuity to the beneficiaries of each participant is provided for in section 1450. Quite clearly, failure to pay these monthly annuities would give rise to a claim in this court since the claimant would be suing for money improperly withheld; a cause of action arising from one of the two classes of claims encompassed by section 1491 of title 28 U.S.C. Eastport S.S. Co., 178 Ct.Cl. at 605, 372 F.2d at 1007.

The circumstances of the present case do not alter this underlying entitlement to money. Plaintiffs argue that violation of the statutory notice requirement nullifies an election to withdraw from the plan. Should this position prevail, we would again be faced with a situation involving the right to be paid money. Thus, a claim for money damages is no less cognizable under the facts herein than in instances where coverage under the plan is undisputed. Upon proof of conditions, a claimant would be entitled to recovery in either situation. Granted, not all statutory violations give rise to a money claim. Testan, 424 U.S. at 401, 96 S.Ct. at 954. But in our view, these statutes do. In sum, we interpret sections 1448-1450 as creating a substantive right mandating compensation for damage sustained. Eastport S.S. Co., 178 Ct.Cl. at 607, 372 F.2d at 1008-09.

Having decided that this matter is properly before us,⁶ we next consider the determinations of the board. The board concluded that section 1448(a) only required notification of the spouse when a serviceman initially elected to decline plan coverage or elected to participate in the plan at less than the maximum level, and not where the serviceman, as here, initially participated in the plan and later revoked his election prior to retirement. Thus, according to the board, section 1448(a) was not applicable to plaintiffs' situation. This is clearly an erroneous interpretation of the statute and defendant has so conceded. However, defendant urges that we uphold the board's ultimate conclusion nonetheless, arguing that, while notice was required herein, if there was failure to give such notice it had no consequence on the decision to elect out of the plan. Thus, we must consider whether, as plaintiffs assert, the notice requirement of section 1448(a) is so inextricably related to a serviceman's option to withdraw from plan coverage that failure to provide such notice invalidates an election out of the plan. Failing this interpretation of the law, defendant urges that we find that notice was in fact given.

Section 1448(a), as in effect during the period in issue, read:

The Plan applies to a person who is married or has

...