Law v. U.S., 92-5165

• Decision Date: 13 December 1993
• Docket Number: No. 92-5165,92-5165
• Citation: 11 F.3d 1061
• Parties: James G. LAW, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1061

11 F.3d 1061

James G. LAW, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.

No. 92-5165.

United States Court of Appeals Federal Circuit.

Dec. 13, 1993.

Eugene R. Fidell, Felderman, Tucker, Leifer, Fidell & Bank, Washington, DC, argued, for plaintiff-appellant. With him on the brief was James L. Feldesman. Of counsel was Jeffrey E. Rummel.

Kirk T. Manhardt, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued, for defendant-appellee. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and James M. Kinsella, Asst. Director. Also on the brief were Dale E. Andrews, Alexander J. Millard, Dept. of Transp. and Lieutenant Commander Joseph Donovan, U.S. Coast Guard, of counsel.

Before NIES, Chief Judge, CLEVENGER and RADER, Circuit Judges.

NIES, Chief Judge.

After nomination by the President and confirmation by the Senate, Secretary of Transportation Skinner removed the name of appellant, then Lieutenant James G. Law, U.S. Coast Guard, from the list of officers to be promoted to the grade of lieutenant commander. Appellant maintains that the appointment was nevertheless effective on June 1, 1990, and he, thus, is entitled to the rank and pay of lieutenant commander. After the Personnel Record Review Board and the Department of Transportation Board for Correction of Military Records rejected his assertions of error in procedures, he filed suit in the United States Claims Court. ¹ His complaint was dismissed. Judge Andewelt holding that the actions taken by the agency and the Secretary were effective to delay and prevent his promotion. Law v. United States, 26 Cl.Ct. 382 (1992). We affirm.

I Background

The following facts are not disputed. Appointments to the rank of lieutenant commander in the Coast Guard are made by the President, with the advice and consent of the Senate. 14 U.S.C. Sec. 271(e) (1988). A Coast Guard selection board recommended Lt. Law, along with a group of other candidates, for promotion to the rank of lieutenant commander, and these recommended candidates were placed on a list of selectees. On October 4, 1988, the Secretary of Transportation, signing "For the President," approved the selection board's promotion recommendation and stated:

Pursuant to the authority of Section 271, Title 14, U.S.Code, and subject to the advice and consent of the Senate, the President appoints to the grade of lieutenant commander, effective on the date of Senate confirmation, or the date vacancies occur, whichever is later, the officers of the Coast Guard recommended for promotion in the report of the selection board approved this date.

On January 3, 1989, the President nominated all 132 officers on the list of selectees for promotion to the rank of lieutenant commander. Subsequently, the Senate confirmed the nomination of all 132 officers, including Lt. Law. However, at that time, there were insufficient vacancies for all 132 nominees to receive their promotions immediately. As set forth in 14 U.S.C. Sec. 271(b) (1988), as vacancies become available, "[o]fficers shall be promoted in the order that their names appear on the list of selectees." Appellant's name appeared 107th on the selection list of 132. There was no vacancy available for the 107th person until June 1, 1990.

Section 271(f) permits the Secretary to delay the promotion of a Coast Guard officer and Sec. 272(a) authorizes the President to remove an officer's name from the promotion list. Section 271(f) states:

The promotion of an officer who is under investigation or against whom proceedings of a court-martial or a board of officers are pending may be delayed without prejudice by the Secretary until completion of the investigation or proceedings. However, unless the Secretary determines that a further delay is necessary in the public interest, a promotion may not be delayed under this subsection for more than one year after the date the officer would otherwise have been promoted. An officer whose promotion is delayed under this subsection and who is subsequently promoted shall be given the date of rank and position on the active duty promotion list in the grade to which promoted that he would have held had his promotion not been so delayed.

14 U.S.C. Sec. 271(f) (1988). Section 272(a) provides: "The President may remove the name of any officer from a list of selectees established under Section 271 of this title." 14 U.S.C. Sec. 272(a) (1988).

In a May 2, 1990, memorandum, the Commandant of the Coast Guard informed appellant that the Chief of Personnel and Training had directed that appellant's promotion be withheld pending a decision by a board of officers as to whether the President should remove appellant from the promotion list. The Chief based his decision on information contained in a special Officer Evaluation Report (OER) covering the period from August 7, 1989, to February 27, 1990. This information was the product of an inquiry conducted at the behest of Lt. Law's superior officer. The special OER reported numerous allegations of "crude" and improper behavior by Lt. Law which, inter alia, led to a lack of respect for Lt. Law among his subordinates. Some, but not all, of the allegations related to harassment of female workers and discrimination based on sex. Appellant's Commanding Officer concluded that appellant was "unsuitable for independent duty" and "should only be considered for assignments where he is under direct supervision."

Pursuant to the May 2, 1990, memorandum, a special board of three Coast Guard captains (hereinafter "Special Board") convened to consider appellant's promotion. The Special Board first met on June 11, 1990, after the date on which appellant's promotion originally would have been effective. During the pendency of the Special Board's deliberations, appellant sought relief from the Coast Guard Personnel Records Review Board ("Review Board"). Appellant asked the Review Board to strike from appellant's record the special OER and to cancel the proceedings of the Special Board. Alternatively, if the above relief was not granted, appellant asked that the proceedings before the Special Board be suspended until appellant was accorded all rights granted under the Military Civil Rights Manual to a person accused of sexual harassment. The Review Board denied appellant's request and upheld the special OER process and findings and stated that it lacked the power to dissolve the Special Board. The Review Board also concluded that the investigation was consistent with Coast Guard civil rights policy, since the Coast Guard handled the investigation as a performance issue rather than as a sexual harassment issue.

The Special Board ultimately recommended that appellant be removed from the promotion list, and in March 1991, the Secretary, acting "For the President," informed the Commandant of the Coast Guard that appellant's name was removed from the promotion list. Appellant then added the promotion list removal to his original motion for relief by the Department of Transportation Board for Correction of Military Records (BCMR). The BCMR found that the actions of the Coast Guard, including the actions of the Commandant, the Special Board, the Review Board, and the Secretary, were proper and denied any relief. Thereafter, appellant filed the instant action.

II Jurisdiction

As an initial matter, we reject the position of the United States that the Claims Court had no jurisdiction to entertain Law's claim. While the government is correct that "one is not entitled to the benefit of a position until he has been duly appointed to it," United States v. Testan, 424 U.S. 392, 402, 96 S.Ct. 948, 955, 47 L.Ed.2d 114 (1976), Law asserts, inter alia, a claim that he was appointed because the actions taken by the Coast Guard and the Secretary were ineffective to derail his appointment otherwise effective by reason of the Secretary's order of October 4, 1988, the Senate's confirmation and the availability of a position. Law is not asking the Claims Court to order his promotion but to recognize that it had occurred. Thus, the precedent holding that a court is without authority to grant a promotion is inapplicable. ² The Claims Court would have authority to grant the relief requested if Law's claim that the appointment had been effected were meritorious. That Law's claim fails on the merits does not negate the court's jurisdiction.

III Delay of Appointment

Appellant first argues that the requirements of Sec. 271(f) necessary to delay his appointment were not met because the Special Board which eventually recommended that he not be promoted (1) was not a "board of officers" within the meaning of Sec. 271(f) because it did not afford proper procedures and (2) in any event, such board did not convene until after his appointment became effective.

A.

On April 25, 1990, the Chief of the Office of Personnel and Training approved the creation of a "Special Board" to determine whether the name of Lieutenant Law should be removed from the selection list. Appellant maintains that any "board of officers" to delay his appointment must afford him the benefits set out in 14 U.S.C. Secs. 321-327 (1988) respecting separation of an officer from the Coast Guard for cause. Under those sections, a "board of officers" is convened to determine whether an officer should be required to show cause for his retention on active duty, i.e., a "show cause" board. 14 U.S.C. Sec. 321. If a show cause order is issued, thereafter a "board of inquiry" is convened to conduct trial proceedings. 14 U.S.C. Sec. 322. Law claims entitlement to a proceeding in which the same rights and procedures are provided as set forth in Sec. 325, that is the "board of officers" under Sec. 271(f) should have acted as a "show cause" board or should have conducted a trial. The government concedes such procedures were not provided by the Special Board but disagrees that they were required.

Judge Andewe...