Curry v. United States

• Decision Date: 14 November 1979
• Docket Number: No. 397-78.,397-78.
• Parties: Ted CURRY v. The UNITED STATES.
• Court: U.S. Claims Court

609 F.2d 980

Ted CURRY v. The UNITED STATES.

No. 397-78.

United States Court of Claims.

November 14, 1979.

Lynn S. Castner, Minneapolis, Minn., attorney of record, for plaintiff. George T. Morrow, II, Minneapolis, Minn., of counsel.

Alexander Younger, Washington, D. C., with whom was Acting Asst. Atty. Gen., Alice Daniel, Washington, D. C., for defendant. Major Jon P. Bruinooge, Office of the Judge Advocate General, Dept. of the Air Force, Washington, D. C., of counsel.

Before DAVIS, NICHOLS, and BENNETT, Judges.

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

BENNETT, Judge.

This military pay claim is presented to the court on defendant's motion for summary judgment. The claim may be summarized by quoting the first two paragraphs of plaintiff's response:

This is an action for racial discrimination suffered by a black man while engaged in service of the United States of America. It is an action for declaratory and injunctive relief, and for damages for the deprivation of both liberty and private property, the right to which is protected by the due process clause of the Fifth Amendment of the United States Constitution; for involuntary, servitude and the right to be free from the "badges and incidents of slavery," secured by the Thirteenth Amendment of the United States Constitution; and for breach of an express and implied contract, the terms of which include certain provisions of the regulations of the United States Air Force and the laws and Constitution of the United States.

In his prayer for relief, plaintiff seeks retroactive appointment to the rank of Captain, a promotion he was unlawfully denied, a retroactive appointment to active reserve status, from the date of his separation from the service; and correction of his military record. He asks for substantial damages, back wages and benefits, of which he was deprived as a result of racial discrimination and prejudice, including additional readjustment pay, separation allowances, and general and punitive damages. This court has the power to grant him relief.

The petition asks for back wages and benefits, plus $250,000 in compensatory damages. For severe emotional distress and anguish caused to plaintiff he demands $100,000, for punitive and exemplary damages $1 million, and an unspecified amount for costs and attorney fees.

Plaintiff, a former Reserve officer in the United States Air Force, was scheduled to be discharged from active duty on June 27, 1975, through a reduction in force but was instead honorably discharged on that date for substandard performance of duty pursuant to Air Force Regulation (AFR) 36-3 (31 March 1971), thereby losing all Reserve status. It is this administrative discharge which plaintiff challenges here as violating his aforesaid constitutional, statutory and regulatory rights and entitling him to the relief sought. The court has before it plaintiff's master personnel record, in two volumes, covering his total period of military service. We also have plaintiff's lengthy affidavit. From this record, the briefs of the parties, and the cases, we conclude defendant is entitled to judgment on its motion.

After prior enlisted service, plaintiff was commissioned as a Reserve second lieutenant on November 18, 1970. He attended pilot training at Williams Air Force Base, Arizona, and was awarded his wings on January 15, 1971. He was, thereafter, promoted to the temporary grade of first lieutenant in 1972 while attending B-52 bomber combat crew training in California. He was later assigned to the 23d Bombardment Squadron, Fifth Bombardment Wing, Strategic Air Command (SAC), Minot Air Force Base, North Dakota.

After a number of incidents at Minot Air Force Base, which led to plaintiff's being disqualified for further promotion in 1974, a selection board determined that he would have to show cause for his retention in the Air Force, pursuant to AFR 36-3, because of allegedly substandard performance of duty. A board of inquiry (board) was convened on April 16, 1975, to receive evidence and to make findings and recommendations in plaintiff's case. The board had before it four negative OERs prepared by three different officers over a 28-month period. The evidence also included deficient technical proficiency ratings, including failure of tests for professional proficiency. Altogether, in the statement of reasons, there were six allegations considered, based upon many documented incidents and evaluations regarding plaintiff's attitude, demeanor, and competency during the course of his service at Minot Air Force Base. Plaintiff faced charges of leadership failure, a scuffle with a female airperson for which he was administratively reprimanded, failure in a series of tests (both initially and on retake) involving the employment, security, and safety of nuclear weapons, failure to follow flight safety procedures, a downward trend in duty performance which resulted in his removal from co-pilot status, a defective attitude toward assigned duties, disrespect for authority, and unmilitary appearance. The board found that plaintiff had successfully rebutted allegations that he had violated regulations as to proper uniform and refusal to wear his helmet, but sustained all other allegations set forth in the statement of reasons and concluded that plaintiff had "failed to establish that he should be retained in the Air Force." The board recommended that plaintiff be honorably discharged from all appointments. The Air Force Board of Review concurred in this recommendation on June 25, 1975, and so did the Secretary on June 26, 1975. Plaintiff's discharge was effected on June 27, 1975.

Plaintiff argues that Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the fifth and thirteenth amendments, the Tucker Act, and the Air Force regulations "imply a claim of which this court has jurisdiction under 28 U.S.C. § 1491 for money damages and other relief arising out of racial discrimination suffered in the Armed Services." Plaintiff further purports to quote and to rely on the dictum of Chief Justice Marshall in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803), that "the law is what this court says it is." Plaintiff misquotes the Chief Justice, who said: "It is emphatically the province and duty of the judicial department to say what the law is." The Chief Justice was not speaking for the Court of Claims, which was not then in existence. Our jurisdiction is a limited one. 28 U.S.C. § 1491 (1976). See Savio v. United States, 213 Ct.Cl. 737, 740 (1977); Eastport S. S. Corp. v. United States, 372 F.2d 1002, 178 Ct.Cl. 599 (1967). Nor is Bivens in point. That case was one brought against individual Government agents for allegedly unreasonable searches and seizures, and the Supreme Court held that plaintiff had stated a valid cause of action under the fourth amendment for which damages were recoverable upon proof of injuries arising from proven violation of the amendment. But, here plaintiff's suit is not against individuals but against the United States, for alleged emotional distress, anguish, and humiliation. These are torts over which we absolutely have no jurisdiction, as made explicit by the Tucker Act, 28 U.S.C. § 1491. Eastport S. S. Corp. v. United States, supra, 372 F.2d at 1010, 178 Ct.Cl. at 609. Nor does plaintiff have a contractual right that can be enforced here. An officer's rights are derived from statute and regulation. Bell v. United States, 366 U.S. 393, 401, 81 S.Ct. 1230, 6 L.Ed.2d 365 (1961); Wade v. United States, 212 Ct.Cl. 593, 595, cert. denied, 431 U.S. 940, 97 S.Ct. 2655, 53 L.Ed.2d 258 (1977). Appointments as officers are discretionary with the President. Orloff v. Willoughby, 345 U.S. 83, 90, 73 S.Ct. 534, 97 L.Ed. 842 (1953). Reserve commissioned officers may be discharged at his pleasure. 10 U.S.C. §§ 1162, 8447(c) (1976). As we have said many times, the court is not in the promotion business when selection for promotion is discretionary. Wright v. United States, 209 Ct.Cl. 734 (1976); Abruzzo v. United States, 513 F.2d 608, 206 Ct.Cl. 731 (1975). We cannot interfere in the...