Godwin v. U.S., 03-5016.

• Decision Date: 06 August 2003
• Docket Number: No. 03-5016.,03-5016.
• Citation: 338 F.3d 1374
• Parties: Charles B. GODWIN, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

338 F.3d 1374

Charles B. GODWIN, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 03-5016.

United States Court of Appeals, Federal Circuit.

Decided August 6, 2003.

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Guy J. Ferrante, King & Everhard, P.C., of Springfield, Virginia, argued for plaintiff-appellant. Of counsel on the brief was Kevin J. Barry, of Chantilly, Virginia.

Colleen Hanrahan, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, argued for defendant-appellee. With her on the brief were David M. Cohen, Director; and Donald E. Kinner, Assistant Director. Of counsel on the brief were Paul M. Geier, Assistant General Counsel for Litigation; Dale C. Andrews, Deputy Assistant General Counsel for Litigation; and Peter S. Smith, Senior Trial Attorney, U.S. Department of Transportation, Office of the General Counsel, of Washington, DC.

Before MAYER, Chief Judge, GAJARSA, and LINN, Circuit Judges.

GAJARSA, Circuit Judge.

Charles B. Godwin ("Godwin") appeals from a final judgment of the Court of Federal Claims granting the United States ("government's") motion to dismiss Godwin's complaint for failure to state a claim upon which relief can be granted, and denying Godwin's motion for judgment on the administrative record. The Court of Federal Claims held that Godwin's complaint failed to allege that (1) the United States Coast Guard ("Coast Guard") selection board ("Selection Board") that considered Godwin for promotion in late 1993 was illegally constituted, and (2) the absence of the most recent Officer Evaluation Report ("OER") before the Selection Board prejudiced Godwin's non-selection for promotion to lieutenant commander. Godwin v. United States, 54 Fed.Cl. 217 (2002). We reverse and remand.

I. BACKGROUND

Godwin was a Coast Guard lieutenant serving on extended active duty as a Reserve Program Administrator ("RPA"). RPA officers were a category of reserve component officers who served on active duty pursuant to 10 U.S.C. § 265 (1956), which was repealed in 1994. In December of 1993, the Coast Guard convened a board to select officers for promotion to lieutenant commander, among other ranks, for 1994, and RPA captains for active duty continuation. The Selection Board considering Godwin for selection for promotion consisted of seven officers, of which only two were RPA officers. The Selection Board had before it a number of Godwin's previous semiannual OERs, but no OER for the semiannual period of June 1, 1993, to November 30, 1993. The Selection Board ultimately did not recommend Godwin for promotion. Because Godwin had not been selected for promotion to lieutenant commander in the previous year, thus having been passed up two consecutive years for promotion, he was mandatorily separated from the Coast Guard on February 27, 1994. Godwin received an OER covering the time period from June 1, 1993, to February 27, 1994 ("detachment OER").

On June 27 and July 21, 1994, Godwin submitted an application for correction to the Department of Transportation Board for Correction of Military Records ("Corrections Board"), seeking the removal of Godwin's failure of selection for promotion on the ground that an OER for the review period between June 1, 1993, and November 30, 1993, was unavailable when the Selection Board convened in December 1993. Godwin also sought removal of the February 1994 OER from his record. The Corrections Board denied relief on June 29, 1995, finding no error or injustice on the Coast Guard's part regarding Godwin's failure of selection by the Selection Board. The Corrections Board interpreted the Coast Guard regulations as allowing semiannual evaluations to be delayed as long as the officer received an OER within 92 days of the normally scheduled semiannual OER. Thus, the Corrections Board found permissible the Coast Guard's decision to process an OER for Godwin in February 1994 rather than for the semiannual review period ending November 30, 1993. The Corrections Board subsequently denied reconsideration of its decision.

On August 10, 1994, Godwin submitted another application for correction with the Corrections Board to void his second non-selection, and also asked to be returned to active duty and be awarded back pay and allowances. Godwin claimed that the Selection Board was unfairly constituted because it should have had at least three RPA members per Coast Guard Regulations. On July 21, 1995, the Corrections Board denied Godwin's request, finding that the Coast Guard had reasonably concluded that only two RPA officers were available to serve on the Selection Board. The Corrections Board denied Godwin's request for reconsideration on January 17, 1997.

Godwin appealed both Corrections Board decisions to the Court of Federal Claims, seeking back pay and allowances stemming from his alleged illegal separation from the Coast Guard. Godwin also sought to remove from his record the February 1994 OER as well as his second non-selection and ensuing involuntary separation; constructive credit for service since his separation; and retirement on the date of eligibility thereafter. Complaint ¶ 31. The government moved for dismissal of the complaint for failure to state a claim, and Godwin moved for judgment on the administrative record. On September 10, 2002, the Court of Federal Claims granted the government's motion and denied Godwin's motion. The court first found that the Selection Board was not illegally constituted, notwithstanding that the Board had only two RPA officers rather than the three RPA officers required by the applicable Coast Guard regulation. The court stated that the Coast Guard regulations provide that if a sufficient number of RPA officers is "not available" to serve on the Selection Board, then the Selection Board may consist of not less than one RPA officer, and that the question of an officer's availability is ultimately one left to the Coast Guard's discretion. Next, the court found that the missing OER was not material to Godwin's non-selection for promotion. The court accordingly granted the government's motion to dismiss Godwin's complaint for failure to state a claim upon which relief can be granted and denied Godwin's motion for judgment on the administrative record. Godwin timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

II. DISCUSSION

A. Standard of Review

We review de novo a Court of Federal Claims decision dismissing a complaint for failure to state a claim upon which relief may be granted. Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir.2002). In evaluating a motion to dismiss under Court of Federal Claims Rule 12(b)(4),¹ the court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in the plaintiff's favor. Dismissal under Rule 12(b)(4) is appropriate when the court determines that the facts as asserted do not entitle the claimant to a legal remedy. Boyle v. United States, 200 F.3d 1369, 1372 (Fed.Cir.2000). The Court of Federal Claims will overturn a Corrections Board decision when it is arbitrary, capricious, unsupported by substantial evidence, or contrary to law. Porter v. United States, 163 F.3d 1304, 1312 (Fed.Cir.1998) (citing Skinner v. United States, 219 Ct.Cl. 322, 594 F.2d 824 (1979)).

The substance of decisions as to the composition, training, equipping, and control of a military force is frequently "beyond the institutional competence of courts to review." Lindsay, 295 F.3d at 1257. For example, we regard judgments made by military officials that a particular officer does not merit promotion as nonjusticiable. Id. However, a claim of a procedural violation may be justiciable because "`the test or standards against which this court measures the military's action are inherent: they are the applicable statutes and regulations.'" Id. at 1257-58 (quoting Adkins v. United States, 68 F.3d 1317, 1323 (Fed.Cir.1995)).

B. Legality of the Selection Board

1. Availability of RPAs

We first consider Godwin's argument that the Corrections Board's acceptance of the Coast Guard's determination that only two of the twelve RPA officers eligible to serve on the Selection Board were "available" was arbitrary, capricious, or contrary to law.

Article 14-A-12b of the Coast Guard Personnel Manual states:

Composition of Boards. A board convened to consider RPA's for promotion to the next higher grade shall consist of five or more officers who are serving in or above the highest grade to which the board may recommend officers for promotion. Three of the members shall be RPA's. If a sufficient number of RPA's are not available to satisfy this requirement, Commandant (G-P) may reduce the number of RPA members to not less than one. In the event no Reserve officer is serving on active duty who is senior to all officers to be considered for promotion, a Reserve officer serving on inactive duty or in a retired status who is senior to all officers to be considered by the board shall be called to active duty and placed on the board.

Article 14-A-12b (first emphasis in original; second emphasis added). Thus, under Article 14-A-12b, if at least three RPA officers are "not available," the Coast Guard is obligated to place at least one RPA officer on the Selection Board.²

Godwin's complaint alleges that the Coast Guard determined that ten of the twelve RPA officers on active duty who were eligible to serve on the Selection Board nonetheless were "not available" to select officers for promotion for the following reasons: three officers served on the previous year's RPA Selection Board; one officer was being considered by the captains' continuation board that same year; one officer's record was deemed inadequate for participation; two officers had schedule conflicts; two officers (captains) were "more junior than [the Coast Guard] normally like[s] to have on a board making selections for promotion to captain," as well as classmates of one officer to be...