Sanders v. United States

CourtCourt of Federal Claims
Citation594 F.2d 804
Docket NumberNo. 157-74.,157-74.
Decision Date21 February 1979


John Everhard, Washington, D.C., for plaintiff. Maurice F. Biddle, Washington, D.C., atty. of record. Thomas H. King and Paul A. Kiefer, Washington, D.C., of counsel.

George M. Beasley, III, Washington, D.C., with whom was Asst. Atty. Gen., Barbara Allen Babcock, Washington, D.C., for defendant. R. W. Koskinen, Marc J. Fink, and Peter A. T. Sartin, Washington, D.C., of counsel.

Neil B. Kabatchnick,* Washington, D.C., amicus curiae.

John P. Arness, Washington, D.C., for The Bar Association of the District of Columbia, amicus curiae. John A. Kendrick, Washington, D.C., and Homer A. Walkup, Summersville, of counsel. Richard P. Fox,* Los Angeles, Cal., amicus curiae.

Keith A. Rosenberg,* Washington, D.C., amicus curiae. Jeffrey M. Glosser, Washington, D.C., of counsel.

Robert M. Wright,* Baltimore, Md., amicus curiae. Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, Md., and Keith A. Rosenberg, Washington, D.C., of counsel.

Before FRIEDMAN, Chief Judge, and DAVIS, NICHOLS, KASHIWA, KUNZIG, BENNETT and SMITH, Judges, en banc.



The question presented in this case is whether the action of the Air Force Board for Correction of Military Records (hereinafter the Correction Board) denying plaintiff relief was arbitrary, capricious, unsupported by substantial evidence, or contrary to law. Plaintiff petitions this court for back pay, the correction of his records, and reinstatement to the rank of captain.1 We hold that the Correction Board's action cannot be sustained under this standard of review and that plaintiff is entitled to relief.

Plaintiff was formerly a captain on active duty in the Regular United States Air Force until April 30, 1974, when he was involuntarily separated from the service because he had been passed over twice for promotion to the permanent grade of major.2 Plaintiff's difficulties began 5 years earlier when, on April 21, 1969, he was passed over for promotion to the temporary rank of major by a selection board. On November 17, 1969, plaintiff filed an application with the Correction Board seeking the removal of four officer effectiveness reports (OERs)3 from his records.4 These OERs had been in plaintiff's file since 1965.5 On December 7, 1970, before the Correction Board had acted on his application, plaintiff was passed over a second time for promotion to the temporary rank of major.

On February 26, 1971, the Correction Board denied plaintiff's application, simply stating that plaintiff had not demonstrated the existence of error or injustice in his records.6 On August 18, 1971, plaintiff sought reconsideration, supplied more documentation and added a request for the voidance of the two passovers for temporary promotion. On November 8, 1971, while the Correction Board was still in the process of evaluating his application, plaintiff was passed over a third time for promotion to the temporary rank of major. After reconsideration of plaintiff's application, the Correction Board recommended to the Secretary the removal of the four OERs from plaintiff's record—some for "error," some for unfairness and injustice7—but plaintiff's request for voidance of the passovers for temporary major by selection boards which had considered the four removed OERs was never considered by the board or by the Secretary either through inadvertence or by mistake. The Secretary affirmed the board's recommendation on November 22, 1971. Thereafter, on the basis of a record which did not include the four voided OERs, but without explanation of the absence of OERs covering plaintiff's performance during these periods or of the prior passovers, plaintiff was passed over a first time for promotion to the permanent rank of major, a fourth time for promotion to the temporary rank of major, and a second time for promotion to the permanent rank of major on August 7, 1972, August 21, 1972, and August 20, 1973, respectively.

On November 21, 1973, plaintiff again applied to the Correction Board, asking further reconsideration of his request to have his first two passovers (for temporary promotion) voided. On December 6, 1973, plaintiff presented a formal application seeking the voidance of all passovers, both temporary and permanent, retention on active duty, and the amendment of his records showing that he had been promoted to major. On March 29, 1974, this application was denied in executive session, without a hearing or explanation, and plaintiff's honorable discharge followed on April 30, 1974. On May 1, 1974, plaintiff brought this suit. On June 19, 1974, plaintiff petitioned the Correction Board to amend his records to show that he was separated from the Air Force under an authority which would permit his enlistment in the Regular Air Force. On August 7, 1974, the Secretary approved the Correction Board's recommendation directing that plaintiff's records be corrected to reflect that he enlisted in the Regular Air Force for a period of 4 years on June 15, 1974, in the grade of sergeant (E-4). Plaintiff now asks this court to hold that the Correction Board on March 29, 1974, acted arbitrarily and capriciously in failing to void the passovers, and to grant him back pay from the time of his discharge (the difference in pay between a captain and sergeant), for an order directing the Secretary to remove all of plaintiff's nonselections for promotion to major, and to restore him to active duty commissioned status as a captain.

On June 13, 1975, the court, troubled by the lack of a rationale for the Air Force's action in voiding the OERs but not the passovers, remanded the case to the Correction Board, instructing it "to make findings of fact showing the basis for its conclusions." Sanders v. United States, 207 Ct.Cl. 962 (1975). The Correction Board responded by reviewing the procedural developments, and in an opinion under date of September 2, 1975, refused to void the passovers. The board action was approved by the Secretary on September 15, 1975. The board's position was that the earlier board action in ignoring plaintiff's request to void passovers he felt to have been occasioned by the prejudicial OERs which were voided, was merely "administrative error" or "administrative oversight" that would not have made for a different result had the mistake not been made.


This case was first argued on March 11, 1977. At that time, defendant made a vigorous challenge to our jurisdiction and our role in reviewing the actions of correction and selection boards. Because of the importance of these issues, supplemental briefing by the parties was ordered and five amicus briefs have also been filed.8

Since that time, defendant has gone far to clarify its position and narrow the issues. During oral argument, defendant made a general statement to the effect that our jurisdiction over this case was not actually at issue. Defendant also explained that its jurisdictional contentions were in response to what it feels is an attempt by plaintiffs to shift the court's attention to review of the military's corrective process itself rather than military action which is the source of the particular claim for correction and remedial action. Thus, defendant has so completely entangled the concepts of our jurisdiction to review with the scope of our review, which is the primary source of controversy in this case, that such general statements are of little use as concessions, and it is necessary for the court to reach the threshold problem of subject-matter jurisdiction and to discuss points made by the parties relating thereto.

The court has jurisdiction over money claims against the United States "founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491. As we set forth in Eastport S. S. Corp. v. United States, 372 F.2d 1002, 178 Ct.Cl. 599 (1967), the noncontractual9 claims within our jurisdiction are of two types—those in which a plaintiff has paid money to the Government and seeks its return, and those claims in which money has not been paid, but the plaintiff nonetheless asserts that payment is due. It has been held, in regards to the latter class of case, which we have before us, that "the allegation must be that the particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum." Eastport S. S. Corp. v. United States, supra, 372 F.2d at 1007, 178 Ct.Cl. at 605. This category —

* * * includes the varied litigations in which we are urged to hold that some specific provision of law embodies a command to the United States to pay the plaintiff some money, upon proof of conditions which he is said to meet. * * * In this type of case, we have held, "a claimant who says that he is entitled to money from the United States because a statute or a regulation or the Constitution grants him that right, in terms or by implication, can properly come to the Court of Claims, at least if his claim is not frivolous but arguable." Ralston Steel Corp. v. United States, 340 F.2d 663, 667, 169 Ct.Cl. 119, 125 (1965), cert. denied, 381 U.S. 950, 85 S.Ct. 1803, 14 L.Ed.2d 723 Eastport S. S. Corp. v. United States, supra, 372 F.2d at 1008, 178 Ct.Cl. at 606.

Defendant cites United States v. Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976), as having some bearing on this case. Testan was a suit by Government trial attorneys in the Defense Supply Agency who claimed that their positions were erroneously classified as GS-13, alleging that they were entitled to GS-14 classifications and the pay therefor because their duties and...

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