Rawlins v. United States, 456-79C.

• Decision Date: 19 November 1980
• Docket Number: No. 456-79C.,456-79C.
• Citation: 646 F.2d 459
• Parties: Edward White RAWLINS v. The UNITED STATES.
• Court: U.S. Claims Court

646 F.2d 459

Edward White RAWLINS v. The UNITED STATES.

No. 456-79C.

United States Court of Claims.

November 19, 1980.

Alan S. Weitz, Washington, D. C., attorney of record, for plaintiff; Ginsburg, Feldman, Weil & Bress, Washington, D. C., of counsel.

Virginia I. Bradley, Washington, D. C., with whom was Asst. Atty. Gen. Alice Daniel, Washington, D. C., for defendant; Captain D. L. Hitchcock, USMCR, of counsel.

Before SKELTON, Senior Judge, and KASHIWA and KUNZIG, Judges.

ON DEFENDANT'S MOTION TO DISMISS

KUNZIG, Judge:

This military pay case comes before the court on defendant's motion to dismiss for failure to state a claim upon which relief can be granted. Plaintiff retired from the United States Navy in 1951, holding the rank of commander. He alleges that he was wrongfully denied advancement to the rank of captain. He now seeks back pay in an amount equal to the difference in salary and retirement pay between what he has actually received and the amount which he would have received had he been promoted to the rank of captain at an appropriate time. The Government maintains that this court is without jurisdiction to entertain plaintiff's claim. We hold for plaintiff. This court has jurisdiction.

Plaintiff graduated from the United States Naval Academy in 1924. He thereafter advanced steadily, ascending to the rank of commander shortly after this country's entrance into World War II. Plaintiff received several war-related commendations and, until his retirement, consistently received fitness reports rating him better-than-average to excellent in the performance of his duties. Yet he never received promotion to the rank of captain.

Of a total of 2,740 Navy commanders considered for promotion to captain during World War II, only 151 were not selected. With the exception of plaintiff, all wartime commanders of better-than-average competency were promoted to captain. Plaintiff has consistently maintained that his failure to obtain promotion was the result of improper actions within the Navy. Since 1947, he has been seeking vindication.

Plaintiff first made repeated efforts within the Department of the Navy but was continually rebuffed.

In 1969, a private bill for the relief of plaintiff was introduced in the Senate and referred to the chief commissioner of the Court of Claims for a report pursuant to 28 U.S.C. §§ 1492 and 2509 (1976).¹ In his report, the chief commissioner stated that plaintiff "suffered non-promotion to the grade of captain as a probable consequence of improper and inequitable actions within the Department of the Navy" and "that there is equitably due the plaintiff a retroactive promotion to the grade of captain". Rawlins v. United States, 197 Ct.Cl. 972, 1017 (1972).²

In response, bills were introduced in Congress to award plaintiff his desired relief. Because of a provision in the House rules preventing the House from considering private bills for the correction of military records, the bill ultimately passed did not provide for direct relief. Instead, the Ninety-Fifth Congress enacted Private Law 95-60, authorizing the Court of Claims formally to adjudicate Rawlins' allegation of wrongful non-promotion and to award appropriate monetary relief. The law said nothing about the granting of a retroactive promotion as a remedy.

Private Law 95-60 provides in pertinent part:

... Notwithstanding any statute of limitations pertaining to suits against the United States, or any lapse of time, or bars of laches, jurisdiction is hereby conferred upon the United States Court of Claims to hear, determine, and render judgment upon any claim of Commander Edward White Rawlins, United States Navy (retired) ... arising out of his claim for retroactive active-duty pay and allowances and retirement pay due him as a result of nonpromotion to the grade of captain, such nonpromotion allegedly being the probable consequence of improper and inequitable actions within the Department of the Navy.

... Nothing in this Act shall be construed as an inference of liability on the part of the United States. Except as otherwise provided in this Act, proceedings for the determination of such claim and review and payment of any judgment or judgments on such claim shall be had in the same manner as in the case of claims over which such court has jurisdiction under Section 1491 of title 28 of the United States Code.

Plaintiff filed in this court on October 10, 1979. His petition sets forth claims for both retroactive promotion and back pay. Because the private law under which plaintiff sues authorizes solely the claim for back pay, the claim for retroactive promotion is of no force and effect and will be disregarded.

We start from the premise, amply documented by the statutory language and legislative history, that Congress exercised its powers to the fullest to confer jurisdiction upon this court to adjudicate Rawlins' monetary claim. In the face of this clear expression of legislative intent, the Government invokes a number of legal doctrines which are recognized to serve as general limitations upon the exercise of jurisdiction by this court. We find nothing in defendant's arguments, however, to persuade us that we may not now proceed to a decision on the merits.

The Government relies upon United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) in arguing that this court is without jurisdiction. Testan involved a two-prong holding. We perceive no difficulty on either prong.

The first prong of Testan holds that the prerequisite for Court of Claims jurisdiction under the Tucker Act, 28 U.S.C. § 1491 (1976), is a claim for money judgment. Id., at 397-398, 96 S.Ct. at 952-953. This portion of Testan is not germane to this case because jurisdiction herein rests upon Private Law 95-60, not the Tucker Act. Nonetheless, even assuming that the Tucker Act and Private Law 95-60 should be read in conjunction, we still perceive no difficulty because Rawlins' claim here is purely and simply one for money judgment.

The second prong of Testan's holding is that federal courts may not entertain suits for money damages against the United States unless some provision of federal law specifically authorizes the award of money damages. Id., at 398-400, 96 S.Ct. at 953-954. This is a corollary of the broader constitutional doctrine of sovereign immunity. We believe that Private Law 95-60 "can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained". Id., at 400, 96 S.Ct. at 954 (quoting Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967)). Several considerations support this conclusion.

To begin with, the statute expressly empowers this court "to hear, determine, and render judgment upon any claim of ... Rawlins ... arising out of his claim for retroactive active-duty pay and allowances and retirement pay due him as a result of nonpromotion to the grade of captain, such nonpromotion allegedly being the probable consequence of improper and inequitable actions within the Department of the Navy". (Emphasis supplied). The statute also provides that "payment of any judgment ... shall be had in the same manner as in the case of claims over which the Court of Claims has jurisdiction under 28 U.S.C. § 1491 (1976)." (Emphasis supplied). This statutory language plainly sets forth the elements of a cause of action for the wrong allegedly done plaintiff, including money damages.

We note that the legislative history recited herein shows beyond any doubt that Congress was initially ready and willing to afford plaintiff redress of his grievances by direct legislative action, but chose instead to delegate this task to the Court of Claims solely for technical reasons relating to the House rules. The statutory language is fully consistent with this background. See, supra at 460-461.

By interpreting Private Law 95-60 as purely procedural — defendant's contention — and not substantive, i. e., as creating a cause of action, we would be interpreting the statute in a manner so as to render it a nullity. As Congress was well aware, plaintiff has been continually turned away in his efforts to obtain a promotion from the Navy. Thus, if Private Law 95-60 did not specifically provide for a cause of action as well as a court in which to bring the action, the law would be useless to plaintiff; it would be a dead letter. Surely Congress could not have intended such a result. See generally, Haggar Co. v. Helvering, 308 U.S. 389, 394, 60 S.Ct. 337, 339, 84 L.Ed. 340 (1940); Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 333, 59 S.Ct. 191, 200, 83 L.Ed. 195 (1938).³

We recognize that Congress' approach in the instant case is a departure from the norm. Congress has afforded Rawlins the opportunity to receive a captain's pay without actually ever having held the rank of captain. The sole requirement for entitlement to the money is a showing by Rawlins in this court that he was wrongfully denied promotion (something he has apparently succeeded in doing on one previous occasion). Such an approach is certainly within Congress' powers to effect. As was stated by this court in Selman v. United States, 204 Ct.Cl. 675, 684, 498 F.2d 1354, 1358 (1974): "Congress retains the prerogative, however, to accord, through specific statutory authorization ... entitlement to pay above that otherwise called for by rank."

Defendant objects that the granting of captain's pay to Rawlins would be tantamount to judicial promotion of military officers, an undertaking this court has repeatedly rejected. See, e. g., Brenner v. United States, 202 Ct.Cl. 678 (1973), cert. denied, 419 U.S. 831, 95 S.Ct. 54, 42 L.Ed.2d 56 (1974). We agree that we are not in the promotion business but find no call for invoking that principle here. As was stated, supra, at 461, insofar as Rawlins' complaint sets forth a claim for retroactive promotion, it is of no force and effect and will be...