Larionoff v. U.S.
| Decision Date | 29 April 1976 |
| Docket Number | Nos. 74-1211,74-1212,s. 74-1211 |
| Citation | 533 F.2d 1167,175 U.S.App.D.C. 32 |
| Parties | Nicholas J. LARIONOFF, Jr., et al. v. The UNITED STATES of America et al., Appellants. Nicholas J. LARIONOFF, Jr., et al., Appellants, v. The UNITED STATES of America et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Stephen Daniel Keeffe, Washington, D. C., for appellants in No. 74-1212 and appellees in No. 74-1211.
Neil H. Koslowe, Atty., Dept. of Justice, Washington, D. C., with whom Carla A. Hills, Asst. Atty. Gen., New York City, at the time the brief was filed, Earl J. Silbert, U. S. Atty., and Robert E. Kopp, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellants in No. 74-1211 and appellees in No. 74-1212. Morton Hollander, Atty., Dept. of Justice and Michael A. Katz, Asst. U. S. Atty., Washington, D. C., also entered appearances for appellants in No. 74-1211 and appellees in No. 74-1212.
Before RICHARD T. RIVES, * Senior Circuit Judge for the Fifth Circuit, WRIGHT and McGOWAN, Circuit Judges.
Congress has been continuously concerned from its inception with the problem of maintaining an adequately manned military establishment for the protection of our national interests. Although one controversial response to that problem has been the operation of a system of compulsory military service, Congress has also especially in recent years attempted to provide a sufficient monetary incentive to attract men and women to careers in the military. One approach that has frequently been chosen by Congress is the award of a monetary bonus recently labeled a "Regular Reenlistment Bonus" to enlisted personnel who reenlist or extend the period of their obligated service. 1 Since 1965, Congress has also provided an additional reenlistment bonus a "Variable Reenlistment Bonus" to enlisted personnel whose skills are in critically short supply. 2 That Variable Reenlistment Bonus (VRB), which is available to enlisted personnel eligible for a Regular Reenlistment Bonus (RRB), is set by regulation at a multiple of the RRB. 3
The seven named plaintiffs who filed this class suit in the District Court are enlisted personnel in the United States Navy who claim that they are entitled by contract or under the doctrine of promissory estoppel to receive VRBs equal to four times the amount of their respective RRBs. We conclude that the District Court properly asserted jurisdiction pursuant to 28 U.S.C. § 1346(a) (2), 4 and, for the reasons set forth below, we affirm the judgment of the District Court ordering payment of VRBs to the named plaintiffs. 5 We affirm the District Court's order certifying the suit as a class action under Rule 23(b)(1)(B) of the Federal Rules of Civil Procedure and awarding attorneys' fees of $14,729. And finally, we remand the case to the District Court for further proceedings concerning an award of attorneys' fees for the efforts of counsel directed to this appeal.
On June 23, 1969 plaintiff Larionoff enlisted in the United States Navy for four years. Shortly thereafter, he underwent a series of tests and interviews to determine his appropriate duty assignment. During the course of those interviews with Navy personnel, Larionoff decided to participate in the Advanced Electronic Field (AEF) training program, successful completion of which would place him in the Communications Technician-Maintenance (CTM) service rating. At the time he decided to enter the AEF program, Larionoff was aware that the CTM rating was classified as a "critical military skill" qualifying for a Variable Reenlistment Bonus equal to four times the amount of an enlisted member's Regular Reenlistment Bonus. 6
Under applicable Navy regulations, the AEF program involved a six year service obligation, and plaintiff Larionoff consequently executed the following "Agreement to Extend Enlistment":
I NICHOLAS JOHN LARIONOFF JR., B 17 77 88, SNJEF, USN having enlisted in the Navy of the United States on 23 JUN 69 for FOUR years, in consideration of the pay, allowances, and benefits which will accrue to me during the continuances of my service, voluntarily agree to extend my enlistment as authorized by Section 5539, of Title 10, United States Code, and the regulations issued pursuant thereto. I voluntarily agree to extend my enlistment for a period of TWO years from the date of expiration thereof, subject to the provisions and obligations of my said contract of enlistment of which this, my voluntary agreement, shall form a part. REASON FOR EXTENSION:
App. at 134 (emphasis added). On that same day, plaintiff Larionoff executed a document requesting assignment to the AEF program and acknowledging his six year obligation:
I fully understand that, by virtue of having been enlisted in the U.S. Navy as a SNJC I am guaranteed assignment to either one of a group of service schools or to (sic) duty in a specific apprenticeship field upon successful completion of recruit training. I desire to waive my rights guaranteed by my enlistment contract, and I hereby request that my rate be changed in equal pay grade to SNJEF. This change of rate is requested for the purpose of: Assignment to the advanced electronics field program. The provisions of this program, the category to which my rate will be changed and the six (06) years service obligation have been fully explained to me.
On March 9, 1970 Larionoff successfully completed the AEF training program and was advanced to the CTM rating and the E-4 pay grade. He executed a document on that date attesting to his advancement to the E-4 pay grade. 7
Up to this point in time, neither the Navy nor plaintiff Larionoff had reason to complain about the events that had transpired. The complicating factor, however, was that Larionoff still expected to receive a Variable Reenlistment Bonus once he entered into his period of extended service on June 23, 1973. The Navy cast some doubt on that expectation when it announced on March 24, 1972 that effective July 1, 1972 the CTM rating would no longer be designated as a "critical military skill" eligible for the VRB award. After realizing that the Navy considered him ineligible for a Variable Reenlistment Bonus, Larionoff had his elected representatives in Congress communicate with the Bureau of Naval Personnel concerning his eligibility for the VRB. 8 These efforts were unsuccessful; the Bureau asserted that the CTM service rating had been removed from the list of eligible service ratings, thus precluding payment of a VRB to plaintiff Larionoff. 9
The other six named plaintiffs 10 have undergone similar administrative processing by the Navy. They all signed extension agreements 11 subsequent to April 20, 1966 (the date the CTM rating was designated as a "critical military skill") extending their enlistments for two years for the purpose of receiving AEF training; executed documents requesting assignment to AEF training and acknowledging their six year obligations; received their training, were advanced to the CTM rating and the E-4 pay grade prior to July 1, 1972; executed documents attesting to their advancement to the E-4 pay grade; entered the extension periods of their enlistments subsequent to July 1, 1972 (the date that the "critical military skill" designation for the CTM rating was terminated); and received their Regular Reenlistment Bonuses. 12
On March 30, 1973, the named plaintiffs filed this class action 13 in the District Court seeking either payment of the VRB award level in effect when the extension agreements were signed or rescission of their extension agreements. 14 On September 28, 1973, the District Court certified the action as a class action pursuant to Rule 23(b)(1)(B); granted plaintiffs' motion for summary judgment and ordered payment of VRBs; and awarded plaintiffs' counsel attorneys' fees of $14,729.00 to be obtained from the class recovery. The Government appeals, claiming error with respect to both the grant of the motion for summary judgment and the class certification. The plaintiffs cross-appeal with respect to the failure of the District Court (1) to order rescission, (2) to order disclosure by the government of the names of members of the class, and (3) to compensate adequately plaintiffs' attorneys.
Plaintiffs offer two theories to support their contention that they are entitled to receive VRBs. They first argue that they executed their extension agreements "in consideration of the pay, allowances, and benefits" which were to accrue during the period of extended service, see --- U.S.App.D.C. pages --- - ---, 533 F.2d page 1170 supra, and that the term "pay" includes awards of VRB. As an alternative ground, plaintiffs maintain that they are entitled to receive VRBs on a theory of promissory estoppel in that they relied to their detriment on oral representations concerning VRB eligibility made by naval personnel attempting to get them to execute extension agreements. We find it unnecessary to reach the issue of promissory estoppel since we find that under applicable military regulations plaintiffs are entitled to VRBs as part of the "consideration" for which they executed extension agreements. 15 Since our interpretation of the relevant regulations depends in part on the legislative history of the statutory provisions delegating to the Secretary of Defense the authority to prescribe eligibility criteria, we turn first to an analysis of the basic statutory provisions establishing the VRB award.
As early as 1795, Congress provided by statut...
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