Groves v. U.S.

• Decision Date: 13 February 1995
• Docket Number: No. 94-5056,94-5056
• Citation: 47 F.3d 1140
• Parties: Sheridon H. GROVES, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1140

47 F.3d 1140

Sheridon H. GROVES, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.

No. 94-5056.

United States Court of Appeals, Federal Circuit.

Feb. 13, 1995.

Rehearing Denied April 12, 1995.

Louis P. Font, Font & Glazer, Boston, MA, argued, for plaintiff-appellant.

Steven J. Abelson, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued, for defendant-appellee. With him on the brief were Frank W. Hunger, Asst. Atty. Gen. and David M. Cohen, Director. Of counsel was Thomas W. Petersen.

Before ARCHER, Chief Judge, NEWMAN, and MAYER, Circuit Judges.

MAYER, Circuit Judge.

Sheridon H. Groves appeals the judgment of the United States Court of Federal Claims in his favor for $6,926.47, because it vastly undervalues his loss. 30 Fed.Cl. 28 (1993). We vacate the judgment in part and remand for further proceedings.

Background

In June 1969, Groves was commissioned in the Army of the United States. On June 30, 1973, he was discharged from the Army and appointed as an officer in the Reserve of the Army. He graduated from medical school in May 1976, and was ordered to active duty, effective July 5 of that year. He became a specialist in orthopedic surgery, and was eventually promoted to the rank of major effective December 16, 1979.

In July 1983, Groves was tried by a court-martial on charges of larceny, making a false claim against the United States, and conduct unbecoming an officer. The charges arose from a claim requesting reimbursement of $443.40 for dependents' travel pay and dislocation allowance he filed following a move to Fort Hood, Texas, in July 1980. He was convicted on the first two charges, and found not guilty on the last. On July 27, 1983, the military judge sentenced Groves to dismissal from the service, forfeiture of all pay and allowances, and confinement at hard labor for one year. On August 27, 1983, the convening authority approved only so much of the sentence as provided for dismissal, forfeiture of pay and allowances, and confinement for a period of three months.

Following his court-martial, from August 27, 1983 to November 4, 1983, Groves was confined at Fort Leavenworth, Kansas. For the duration of his confinement, he remained a commissioned officer in the Reserve of the Army under appointment for an indefinite term on active duty at the rank of major. He was under a service obligation for receiving Incentive Special Pay until September 30, 1983. ¹

From the time he arrived at Fort Hood until his court-martial in 1983, Groves had performed his military duty as an orthopedic surgeon. As such, he qualified for, and consistently received, financial bonuses designed to attract and retain certain professionals in military service, including Variable Special Pay, Medical Additional Special Pay, and Incentive Special Pay. ² In addition to his duties as an orthopedic surgeon in the Army Groves worked during his off-duty hours as a subcontractor for medical services companies in civilian hospitals. There he worked as an emergency room physician during evenings, weekends, and holidays.

On November 4, 1983, Groves was released from confinement and relieved from active duty pending appellate review. He was retained in the service to await final action on the court-martial charges. After his release from Fort Leavenworth, he returned to his work as a subcontractor for medical services companies, again as an emergency room physician. He obtained full-time work as an orthopedic surgeon when he moved to California in February 1990.

On January 18, 1985, the Army Court of Military Review, now Army Court of Criminal Appeals, see Pub.L. No. 103-337, Sec. 924(b)(1), 108 Stat. 2663, 2831 (Oct. 5, 1994), set aside the fraudulent claim charge and specification. United States v. Groves, 19 M.J. 804 (ACMR 1985). Then, on March 16, 1987, the Court of Military Appeals, now United States Court of Appeals for the Armed Forces, see Pub.L. No. 103-337, Sec. 924(a), 108 Stat. 2663, 2831 (Oct. 5, 1994), set aside the conviction and sentence on the larceny charge on the ground that certain evidence should not have been admitted. United States v. Groves, 23 M.J. 374 (CMA 1987). The order implementing the Court of Military Appeals judgment expressly directs that "All rights, privileges and property of which the accused has been deprived by virtue of the findings of guilty and sentence so set aside will be restored." General Court-Martial Order No. 22, HQs., Fort Hood (May 8, 1987) (paraphrasing 10 U.S.C. Sec. 875(a) (1988)). On January 22, 1991, Groves was discharged from the Ready Reserve, effective December 21, 1990.

In the interim, on March 22, 1989, Groves filed this suit seeking back pay, allowances, and restoration to active duty. He asserted entitlement from the date of his sentencing and confinement to the present for basic pay, basic allowances for quarters and subsistence, variable housing allowance, Variable Special Pay, Medical Additional Special Pay, Incentive Special Pay, and restoration to active duty or modification of his discharge orders to allow him to retire effective January 20, 1992, which would allow him to claim retired pay.

The Court of Federal Claims held that Groves was entitled to basic pay and allowances from the date of his sentencing until January 22, 1991, the date of the discharge orders. This foreclosed his retirement claim. The court denied Groves' request for special pay, holding that he was unable to show that he met the additional requirements for eligibility. And the court determined that the amount that Groves earned as an emergency room physician after his release should be offset against the award of back pay and allowances. Accordingly, the court awarded Groves a total of $6,926.47. This appeal followed.

Discussion

There is no disagreement that Groves is entitled to some back pay and allowances as a result of his illegal conviction. The parties argue here over just how much. We disagree with the measure adopted by the Court of Federal Claims.

I.

Groves first contends that the trial court erroneously relied on his status on November 4, 1983, to calculate his entitlement to back pay. He suggests that if the court had instead considered his status on July 27, 1983, as he says it should have done, his back pay award would have included Variable Special Pay, Medical Additional Special Pay, and Incentive Special Pay. We believe he is correct.

The Court of Federal Claims noted that "[u]nlike basic pay and allowances, such special payments are not dependant only upon active duty status. Entitlement to [Medical Additional Special Pay] requires orders to active duty for a period of at least one year; eligibility criteria for Incentive Special Pay requires the officer to sign an agreement to remain on active duty for at least 1 year." 30 Fed.Cl. at 35. The court denied Groves any special pay because he did not demonstrate that he had satisfied these additional requirements for eligibility for the special pay in question. See 37 U.S.C. Sec. 302(a) (Supp. V 1993) (Variable Special Pay); 37 U.S.C. Sec. 302(a)(4) (Additional Special Pay); 37 U.S.C. Sec. 302(b) (Incentive Special Pay).

It is unarguable that the special pay at issue here is awarded at the discretion of the Secretary of the Army, and that no court is qualified to review the substantive merits of a decision to deny it, so long as the decision comports with any procedural standards mandated by statute or regulation. See Voge v. United States, 844 F.2d 776, 779-80 (Fed.Cir.1988) (decision to terminate Additional Special Pay, to which physician would otherwise be entitled, subject only to review for compliance with established procedures, but not justiciable on the merits); Adair v. United States, 648 F.2d 1318, 1323, 227 Ct.Cl. 345 (1981) (decision to award Variable Incentive Pay discretionary and beyond review). But this is manifestly not a case where a servicemember challenges a military decision terminating an award of special pay or declining to award special pay in the first instance. In our view, the facts of this case dictate a different result.

Groves seeks payment of special pay corresponding to what he was receiving at the time of the court-martial proceedings against him. By statute,

all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, shall be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing.

10 U.S.C. Sec. 875(a). The purpose of this statute is to make the injured servicemember whole--to return him to the position that he would have enjoyed but for the erroneous conviction.

Groves is entitled to Variable Special Pay for the entire period. That pay depends solely on an officer's status on active duty under orders to active duty for at least one year. See 37 U.S.C. Sec. 302(a). Groves appears to have received Variable Special Pay consistently prior to his court-martial, and there is no reason to believe that he would not have continued to do so but for the conviction and sentence.

The Secretary of the Army had discretion not to renew Groves' Incentive Special Pay agreement when it expired on September 30, 1983, see 37 U.S.C. Sec. 302(b), and the merits of that decision would have been beyond review in court. But the Secretary must first exercise that discretion. In this case, Groves was denied his special pay by virtue of the court-martial conviction and sentence, later overturned, and not by any discretionary decision by the Secretary.

The same rationale applies to the decision not to renew Groves' Additional Special Pay when that agreement expired on June 30, 1983. While this decision would normally be well within the Secretary's discretion, see id. Sec. 302(a)(4), that discretion is tempered by the statutory command of 10 U.S.C. Sec. 875(a...