Randall v. United States

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIE C. RANDALL, Major,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA; THE

UNITED STATES ARMY CLAIMS

SERVICE; TOGO D. WEST, JR.,

Secretary of the Army; DAVID R.

KINNEER, Executive Secretary, Army

No. 95-2504

Board for Correction of Military

Records; DEPUTY CHIEF, Appeals

and Corrections Branch; OFFICERS,

Special Review Board (OSRB);

REINARD M. LOTZ, Colonel; STEPHEN

GARRET, Colonel; ORA J. WILLIAMS,

Lieutenant Colonel,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Franklin T. Dupree Jr., Senior District Judge.

(CA-94-866-5-D)

Argued: May 7, 1996

Decided: September 10, 1996

Before WILKINSON, Chief Judge, ERVIN, Circuit Judge, and

CHAPMAN, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Senior Judge Chapman wrote the

opinion, in which Chief Judge Wilkinson and Judge Ervin concurred.

COUNSEL

ARGUED: Clifford Leon Lee, II, THE LEE LAW FIRM, P.A., Fay-

etteville, North Carolina, for Appellant. Bruce Charles Johnson,

Assistant United States Attorney, Raleigh, North Carolina, for Appel-

lee. ON BRIEF: Janice McKenzie Cole, United States Attorney,

Eileen C. Moore, Assistant United States Attorney, Raleigh, North

Carolina, for Appellee.

_________________________________________________________________

OPINION

CHAPMAN, Senior Circuit Judge:

Plaintiff-Appellant, Willie C. Randall, a Major in the United States

Army, filed this action after he was denied promotion to the rank of

Lieutenant Colonel. Plaintiff alleges that his nonselection was the

result of racial discrimination, that he was denied due process, and

that the Army failed to follow its own regulations in reviewing his

request for correction of his military records. The district court

granted Defendants' motion to dismiss or, in the alternative, for sum-

mary judgment, and Plaintiff appealed. For the reasons that follow,

we affirm.

I.

Plaintiff is a United States Army Major in the Quartermaster Corps

and is currently stationed at Fort Bragg, North Carolina. He was origi-

nally commissioned in the Army Reserve on May 9, 1976, after com-

pleting the Reserve Officer Training Corp (ROTC) Program and

graduating from college. He was promoted to First Lieutenant on

August 29, 1978, and to Captain on September 15, 1980. He received

an appointment to the regular Army from the President and was con-

firmed by the Senate on November 10, 1982. On January 1, 1988, he

was promoted to the rank of Major. By all accounts, Plaintiff has had

a distinguished military career. He has continued his formal education

while in the Army, has received several military awards, and served

with distinction in Saudi Arabia during Operations Desert Shield and

Desert Storm.

2

Plaintiff anticipated being promoted in due course to the rank of

Lieutenant Colonel. On May 16, 1991, however, he received a letter

from Lieutenant Colonel James M. Colvin, Chief of the Quartermas-

ter Branch of the United States Army, indicating that Plaintiff's 1990

Officer Evaluation Report ("OER") might present a problem for his

continued promotion. LTC Colvin stated that the rating for potential

in Plaintiff's 1990 OER "is below average compared to [his] contem-

poraries" and that "a continuation in this direction may have a serious

impact on [his] potential for promotion." S.A. at 289.

In response to LTC Colvin's letter, Plaintiff visited the Quarter-

master Branch on July 31, 1991 to review his military records to

determine the source of the unfavorable material referred to by LTC

Colvin. When Plaintiff reviewed his records, he discovered that his

OER for the period from January 1, 1990 to December 31, 1990 con-

tained an unfavorable rating of his potential.1 Plaintiff also discovered

two additional OERs that reflected similar unfavorable ratings of his

potential. Those OERs rated Plaintiff from May 5, 1982 to May 9,

1983 (OER #1) and from May 10, 1983 to November 16, 1983 (OER

#2). Plaintiff believed that all three OERs contained inaccurate ratings

of his potential because the ratings were arguably inconsistent with

the written comments contained in another part of the OER.2

_________________________________________________________________

1 Part VII(a) of the OER contains nine vertical blocks on which the

senior rater assesses the ratee's potential by placing a mark in one of the

blocks. AR 623-105, ¶ 4-16(d)(1) (Mar. 31, 1992), S.A. at 358. On Plain-

tiff's 1990 OER, the third block is marked with an"X." J.A. at 129.

Although this selection is in the top third of the nine possible blocks, it

reflects an unfavorable rating when compared with the senior rater's pro-

file, which measures how that particular officer rated the other individu-

als he is responsible for rating. See AR 623-105, ¶ 4-167(d)(5), S.A. at

358. Plaintiff's three-block rating is below center of mass, or below aver-

age, on the senior rater's profile, because, of the nineteen officers rated

by that particular senior rater, twelve received a two-block rating for

potential, six (including Plaintiff) received a three-block rating, and one

received a four-block rating. J.A. at 129.

2 Part VII(b) of the OER contains a space for the senior rater to provide

written comments about the ratee. That portion of the OER can include

either an explanation of the potential evaluation in Part VII(a), or it can

be an assessment of the ratee's actual performance. AR 623-105, ¶ 4-

16(d)(2), S.A. at 358.

3

On November 27, 1991, Plaintiff filed an appeal of his 1990 OER

to the Officers Special Review Board ("OSRB"). He sought to

upgrade his potential rating or to expunge that portion of the OER

from his records altogether. In addition, on December 12, 1991, Plain-

tiff appealed OERs #1 and 2 to the OSRB. He sought the same relief

for OERs #1 and 2 that he sought for his 1990 OER, and he requested

that the OSRB waive the time limitation in 10 U.S.C.§ 1552(b)3 for

the earlier OERs.

In support of his appeal of OERs #1 and 2, Plaintiff submitted to

the OSRB supporting statements from several of his superior officers

and some newspaper clippings highlighting his accomplishments. The

OSRB did not deem it necessary to contact the senior rater who com-

pleted the OERs in question. Although the OSRB waived the statute

of limitations as to OERs # 1 and 2, it nevertheless denied Plaintiff's

appeal. According to the OSRB, Plaintiff "failed to provide clear and

convincing evidence that supports his contention that the contested

OERs are inaccurate." S.A. at 130.

The OSRB reached essentially the same conclusion with respect to

Plaintiff's 1990 OER. In support of that appeal, Plaintiff again sub-

mitted favorable testimonials from several of his contemporaries and

superior officers, as well as a certificate and citation for the award of

the Bronze Star Medal he received from his service in the Gulf War

_________________________________________________________________

3 Section 1552(b) of Title 10 of the United States Code provides that

a claimant may seek to correct his military records"within three years

after he discovers the error or injustice." 10 U.S.C. § 1552(b). That sec-

tion further provides that a Board for the Correction of Military Records

"may excuse a failure to file within three years after discovery if it finds

it to be in the interest of justice." Id. Although this court need not address

the applicability of this limitations period to this case, there is some

debate about whether this statute of limitation is tolled during a service

member's period of active service by the Soldiers' and Sailors' Civil

Relief Act of 1940 ("SSCRA"), 50 U.S.C. § 525. Compare Detweiler v.

Pena, 38 F.3d 591 (D.C. Cir. 1994) (holding that tolling provision in

SSCRA tolls three-year limitations period in 10 U.S.C. § 1552(b) during

service member's period of active duty; but that the equitable defense of

laches may still prevent review), with Miller v. United States, 29 Fed. Cl.

107 (1993) (holding that SSCRA does not toll limitations period of 10

U.S.C. § 1552(b)).

4

during the rated period. The OSRB conducted a thorough investiga-

tion and interviewed the rating officials who completed Plaintiff's

1990 OER. The intermediate rater indicated that she had problems

getting Plaintiff to follow her directions and that Plaintiff seemed to

think he knew the best way to get things done. In addition, the senior

rater stated that Plaintiff was "like a loose cannon on deck." S.A. at

144. The OSRB concluded that Plaintiff "failed to provide clear and

convincing evidence that supports his contention that the contested

OER is inaccurate and unjust and does not adequately reflect his per-

formance or potential." S.A.at 146. Accordingly, the OSRB denied

Plaintiff's appeal.

Plaintiff was denied promotion to Lieutenant Colonel on August 6,

1992.

Thereafter, he appealed the decision of the OSRB as to all three of

his OERs to the Army Board for the Correction of Military Records

("ABCMR"). He requested that all three OERs be upgraded to reflect

a center of mass rating for potential or, in the alternative, that the

potential evaluation be deleted entirely from each report. In addition,

he requested that his records be corrected to reflect that he was

selected for promotion to the rank of Lieutenant Colonel by the 1990

promotion selection board.

On March 17, 1993, the ABCMR issued two memoranda of con-

sideration denying Plaintiff's requests. The ABCMR determined that

Plaintiff's appeal of OERs #1 and 2 was not timely. Also, the

ABCMR stated that Plaintiff "has not presented and the records do

not contain sufficient justification to conclude that it would be in the

interest of justice to grant the relief requested or to excuse the failure

to file within the time prescribed by law." S.A. at 127. As to the 1990

OER, the ABCMR similarly determined that Plaintiff"has failed to

submit sufficient relevant evidence to demonstrate the existence of

probable error or injustice." S.A. at 141.

After Plaintiff exhausted his administrative appeals, he filed the

instant action in the United States District Court for the Eastern Dis-

trict of North Carolina on November 14, 1994. He alleges three

causes of action in his complaint: (1) employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

5

§ 2000e-16; (2) violation of the Due Process Clause of the Fifth

Amendment to the United States Constitution; and (3) the Army's

failure to follow its own regulations in reviewing his request for cor-

rection of military records. Plaintiff seeks to have the district court

order that the adverse ratings in the three challenged OERs be

upgraded or removed from his records; that he be retroactively pro-

moted to Lieutenant Colonel with back pay; and that he be allowed

to attend advanced military schools and be guaranteed an opportunity

to compete for the rank of Colonel.

On January 30, 1995, Defendants filed a motion to dismiss or, in

the alternative, for summary judgment. The district court granted

Defendants' motion on July 3, 1995. The district court dismissed

Plaintiff's Title VII claim under Fed. R. Civ. P. 12(b)(1) for lack of

subject matter jurisdiction, ruling that Title VII does not apply to uni-

formed members of the military. The district court also dismissed

Plaintiff's constitutional claim under Fed. R. Civ. P. 12(b)(6) for fail-

ure to state a claim upon which relief can be granted. The court found,

inter alia, that Plaintiff's due process claims were nonjusticiable.

Finally, the court granted summary judgment for Defendants under

Fed. R. Civ. P. 56 with regard to Plaintiff's claim that the Army failed

to follow its own regulations in reviewing his request to correct his

military records. The court found that the ABCMR's actions were not

arbitrary, capricious, or unsupported by substantial evidence.

Plaintiff appeals from the district court's order of July 3, 1995. We

address each of Plaintiff's allegations of error below.

II.

Plaintiff's first cause of action is for alleged employment discrimi-

nation in violation of Title VII. Plaintiff, who is an African American,

alleges that his unfavorable OERs were the result of improper racial

discrimination. He contends that the district court erred in dismissing

his discrimination claim.

This court reviews de novo the district court's dismissal of Plain-

tiff's Title VII claim for lack of subject matter jurisdiction. Ahmed v.

United States, 30 F.3d 514, 516 (4th Cir. 1994).

6

Section 717 of Title VII, 42 U.S.C. § 2000e-16(a), provides, in rel-

evant part, "All personnel actions affecting employees or applicants

for employment . . . in military departments as defined in section 105

of Title 5 . . . shall be made free from any discrimination based on

race, color, religion, sex, or national origin." As the district court cor-

rectly recognized, every federal court of appeal that has addressed the

issue has held that Title VII does not apply to uniformed members of

the military. E.g., Roper v. Department of Army, 832 F.2d 247, 248

(2d Cir. 1987); Gonzalez v. Department of Army , 718 F.2d 926, 928-

29 (9th Cir. 1983); Johnson v. Alexander, 572 F.2d 1219 (8th Cir.),

cert. denied, 439 U.S. 986 (1978); see also Collins v. Secretary of

Navy, 814 F. Supp. 130 (D.D.C. 1993). But see Hill v. Beckman, 635

F. Supp. 1228 (E.D.N.Y. 1986) (holding that uniformed service mem-

ber may bring sex discrimination suit under Title VII) (rejected by

Roper, supra). Those courts have recognized the difference between

the definition of the term "military departments" as used in 42 U.S.C.

§ 2000e-16 and the term "armed forces." Under this distinction, the

term "military departments" includes only civilian employees of the

Army, Navy, or Air Force; while the term "armed forces" refers to

uniformed military personnel.4Gonzalez, 718 F.2d at 928. The court

in Gonzalez reasoned that Congress recognized the difference

between the two terms when it drafted section 717 to apply specifi-

cally to "military departments." The Gonzalez court found support for

its interpretation of section 717 in the legislative history of the statute.

Id.

This court agrees that Congress intended to include only civilian

employees of the military departments, and not uniformed service

members, within the reach of Title VII. Therefore, the district court

_________________________________________________________________

4 Section 102 of Title 5 of the United States Code, which is specifically

referenced in 42 U.S.C. § 2000e-16, provides that "[t]he military depart-

ments are: The Department of the Army[;] The Department of the Navy[;

and] The Department of the Air Force." 5 U.S.C. § 102. Section

101(a)(8) of Title 10 of the United States Code contains virtually the

identical definition of the term "military departments." See 10 U.S.C.

§ 101(a)(8). Significantly, however, 10 U.S.C.§ 101 contains a separate

definition of the term "armed forces," which is defined to mean "the

Army, Navy, Air Force, Marine Corps, and Coast Guard." 10 U.S.C.

§ 101(a)(4).

7

was correct in dismissing this count of Plaintiff's complaint under

Fed. R. Civ. P. 12(b)(1) for want of subject matter jurisdiction.

III.

Plaintiff's second cause of action is for violation of his Fifth

Amendment right to due process. The district court dismissed this

cause of action under Fed. R. Civ. P. 12(b)(6), ruling that the allega-

tions presented a nonjusticiable issue.

We review a dismissal under Rule 12(b)(6) de novo, construing the

factual allegations in the light most favorable to the plaintiff. Biggs

v. Meadows, 66 F.3d 56, 59 (4th Cir. 1995)."Dismissal for failure to

state a claim is proper where `it is clear that no relief could be granted

under any set of facts that could be proved consistent with the allega-

tions.'" Id. (quoting Hinshon v. King & Spalding, 467 U.S. 69, 73

(1984)).

The district court construed Plaintiff's complaint as alleging a

cause of action under Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the United

States Supreme Court held that a plaintiff could sue federal officers

individually for damages caused by constitutional torts committed

under color of their authority. See Robinson v. Overseas Military

Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994).

We have some serious reservations about whether the district court

should have implied a Bivens action from the allegations in Plaintiff's

complaint. Although Fed. R. Civ. P. 8(c) provides that "[a]ll pleadings

shall be so construed as to do substantial justice," this court has

imposed a heightened pleading requirement for plaintiffs asserting

actions against federal officials under Bivens . See Dunbar Corp. v.

Lindsey, 905 F.2d 754, 764 (4th Cir. 1990) ("We agree . . . that a

`heightened pleading standard' is highly appropriate in actions against

government officials."). The allegations in Plaintiff's complaint likely

do not contain the requisite specificity to be appropriately reviewed

as a Bivens action.

Nevertheless, we agree with the district court's ultimate conclusion

that Plaintiff cannot recover under Bivens for the alleged due process

8

violations of Defendants. In Chappell v. Wallace , 462 U.S. 296

(1983), the Supreme Court specifically held that"enlisted military

personnel may not maintain a suit to recover damages from a superior

officer for alleged constitutional violations." Id. at 305. The Chappell

Court determined that the unique disciplinary structure of the military

and Congress's plenary authority over the armed forces presented

"`special factors counselling hesitation'" to allowing a Bivens-type

action by servicemen against their superiors. Id. at 298, 304 (quoting

Bivens, 403 U.S. at 396)). The Court noted that Congress has pro-

vided specific remedies for complaints and grievances of servicemen,

such as applying to the boards for the correction of military records

under 10 U.S.C. § 1552(a).

Although the specific language of Chappell prohibits suits by

enlisted service members against their superior officers, the Supreme

Court in United States v. Stanley, 483 U.S. 669 (1987), specifically

held that "no Bivens remedy is available for injuries that `arise out of

or are in the course of activity incident to service.'" Id. at 684 (quot-

ing Feres v. United States, 340 U.S. 135, 146 (1950)); see also

Mickens v. United States, 760 F.2d 539, 540 (4th Cir. 1985) (per

curiam) (holding that the rationale of Chappell bars a Bivens-type suit

brought by a subordinate officer against a superior officer), cert.

denied, 474 U.S. 1104 (1986).

This court agrees with the district court's determination that Plain-

tiff's allegations "arise out of or are in the course of activity incident

to service." Therefore, the district court was correct in dismissing

Plaintiff's due process cause of action for failure to state a claim.5

_________________________________________________________________

5 We do not reach the district court's alternative ruling that Plaintiff

cannot demonstrate a property interest in a military promotion or contin-

ued military service, or a liberty interest in preserving his good name and

reputation. See, e.g., Blevins v. Orr , 721 F.2d 1419, 1421-22 (D.C. Cir.

1983) ("[I]t is clear that military promotion decisions simpliciter are not

susceptible to due process challenges, inasmuch as there exists no prop-

erty or liberty interest in a military promotion per se."); Sims v. Fox, 505

F.2d 857, 860-64 (5th Cir. 1974) (en banc) (holding that serviceman

failed to demonstrate property or liberty interest in challenging his dis-

charge from Air Force), cert. denied, 421 U.S. 1011 (1975).

9

IV.

Before reaching the merits of Plaintiff's appeal as to the remaining

cause of action, we must address the issue of jurisdiction, both in the

district court and in this court. It is well settled that "[f]ederal courts

are courts of limited jurisdiction. They possess only that power autho-

rized by Constitution and statute." Kokkonen v. Guardian Life Ins.

Co., 114 S. Ct. 1673, 1675 (1994). Although neither party has chal-

lenged the jurisdiction of this court or the district court, the Supreme

Court has stated that "every federal appellate court has a special obli-

gation to `satisfy itself not only of its own jurisdiction, but also that

of the lower courts in a cause under review,' even though the parties

are prepared to concede it." Bender v. Williamsport Area School Dist.,

475 U.S. 534, 541 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237,

244 (1934)). The court's concern about jurisdiction in this case stems

primarily from the district court's failure to address the issue of sover-

eign immunity.6

As the Supreme Court has recognized, "It is axiomatic that the

United States may not be sued without its consent and that the exis-

tence of consent is a prerequisite for jurisdiction." United States v.

Mitchell, 463 U.S. 206, 212 (1983). Furthermore,"a waiver of the tra-

ditional sovereign immunity `cannot be implied but must be unequiv-

ocally expressed.'" United States v. Testan , 424 U.S. 392, 399 (1976)

(quoting United States v. King, 395 U.S. 1, 4 (1969)).

Here, the district court rejected the only basis for jurisdiction

alleged in Plaintiff's complaint: the Little Tucker Act, 28 U.S.C.

§ 1346(a)(2). The district court examined Plaintiff's allegations and

inferred jurisdiction under the general federal question jurisdiction

statute, 28 U.S.C. § 1331.7 However, section 1331 "is not a general

_________________________________________________________________

6 Plaintiff's cause of action under Title VII, were it viable, would not

present the same concerns of sovereign immunity, because 42 U.S.C.

§ 2000e-16 contains an express waiver of sovereign immunity for actions

covered by the statute. E.g., Salazar v. Heckler, 787 F.2d 527 (10th Cir.

1986) (stating that 42 U.S.C. § 2000e-16(c) is a clear expression of con-

sent to suit against the United States by federal employees covered by

subsection (a)).

7 Section 1331 provides, "The district courts shall have original juris-

diction of all civil actions arising under the Constitution, laws, or treaties

of the United States." 28 U.S.C. § 1331.

10

waiver of sovereign immunity. It merely establishes a subject matter

that is within the competence of federal courts to entertain."

Coggeshall Dev. Corp. v. Diamond, 884 F.2d 1, 4 (1st Cir. 1989)

(citation omitted); Humphreys v. United States , 62 F.3d 667 (5th Cir.

1995) (holding that 28 U.S.C. § 1331, by granting district courts juris-

diction over constitutional claims, does not thereby waive sovereign

immunity).

The district court's analysis of Plaintiff's case under Bivens, supra,

is also not sufficient to remove the concern of sovereign immunity.

Bivens did not abolish the doctrine of sovereign immunity of the

United States. Any remedy under Bivens is against federal officials

individually, not the federal government. See Robinson v. Overseas

Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994).

Generally, plaintiffs in cases such as this one, challenging a deci-

sion of a board for the correction of military records, have used one

of two avenues to establish federal jurisdiction: the Tucker Act, 28

U.S.C. §§ 1346(a)(2), 1491; and the Administrative Procedures Act

("APA"), 5 U.S.C. §§ 701-706. Both of these statutes have been con-

strued as waivers by the United States of sovereign immunity. E.g.,

United States v. Mitchell, 463 U.S. at 212 ("[W]e conclude that by

giving the Court of [Federal] Claims jurisdiction over specified types

of claims against the United States, the Tucker Act constitutes a

waiver of sovereign immunity with respect to those claims."); Bowen

v. Massachusetts, 487 U.S. 879, 891-92 (1988) ("[I]t is undisputed

that the 1976 amendment to [5 U.S.C.] § 702 was intended to broaden

the avenues for judicial review of agency action by eliminating the

defense of sovereign immunity in cases covered by the amendment

. . . .").

As noted earlier, Plaintiff's complaint invokes the Little Tucker

Act, 28 U.S.C. § 1346(a)(2), as the sole basis for jurisdiction in this

case. J.A. at 7. We have recognized that Fed. R. Civ. P. 8(a)(1)

requires plaintiffs to affirmatively plead the jurisdiction of the federal

court. Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir.),

cert. denied, 474 U.S. 945 (1985). However, Rule 8(f) provides that

"[a]ll pleadings shall be so construed as to do substantial justice." As

the United States Court of Appeals for the Tenth Circuit has stated,

"Although a plaintiff must allege essential jurisdictional facts in a

11

complaint, federal jurisdiction may be sustained on the basis of a stat-

ute not relied on or alleged in the pleadings." Celli v. Shoell, 40 F.3d

324, 328 (10th Cir. 1994). Thus, if the allegations in Plaintiff's com-

plaint are sufficient to support jurisdiction under a provision other

than the Tucker Act, such as the APA, this court is authorized to

examine the case under that provision.

The interplay between the Tucker Act and the APA is somewhat

complicated and raises some significant issues of federal court juris-

diction. Determining the proper statutory framework for the district

court's jurisdiction in this case is critical because it affects the appel-

late jurisdiction of this court. The United States Court of Appeals for

the Federal Circuit, not the regional courts of appeals, has exclusive

jurisdiction over appeals in cases based "in whole or in part" on the

Tucker Act. 28 U.S.C. § 1295(a)(2). The provision of 28 U.S.C.

§ 1295(a)(2) is mandatory and cannot be waived by the parties,

because it relates to the subject matter jurisdiction of this court.

Trayco, Inc. v. United States, 967 F.2d 97, 100 (4th Cir. 1992).

Accordingly, if Plaintiff's action were properly before the district

court under the Little Tucker Act, the appeal therefrom would have

to go to the Federal Circuit, not to this court.

In addition, this court is cautious about trespassing into the prov-

ince of the Court of Federal Claims and the Federal Circuit to decide

non-tort actions against the United States. As the United States Court

of Appeals for the D.C. Circuit has recognized,"a primary purpose

of the [Tucker] Act [is] to ensure that a central judicial body adjudi-

cates most claims against the United States Treasury." Kidwell v.

Department of Army, 56 F.3d 279, 284 (D.C. Cir. 1995) (citing

United States v. Hohri, 482 U.S. 64, 71-73 (1987)). The Court of Fed-

eral Claims and the Court of Appeals for the Federal Circuit have "ex-

tensive experience reviewing decisions of corrections boards in

military pay cases." Mitchell v. United States, 930 F.2d 893, 896 (Fed.

Cir. 1991). With these basic principles in mind, we turn our analysis

to whether the Tucker Act or the APA provides the appropriate juris-

dictional foundation for this case.

A.

The APA generally provides that a person who claims to have suf-

fered a legal wrong because of agency action is entitled to judicial

12

review of that action. 5 U.S.C. § 702. The waiver of sovereign immu-

nity in the APA is limited to suits seeking relief"other than money

damages." Id. In addition, review under the APA is available only for

"final agency action for which there is no other adequate remedy in

a court." 5 U.S.C. § 704 (emphasis added). This limitation has been

interpreted to preclude review under the APA when a plaintiff has an

adequate remedy by suit under the Tucker Act. See, e.g., Alabama

Rural Fire Ins. Co. v. Naylor, 530 F.2d 1221, 1230 (5th Cir. 1976)

("Section 704 of the APA provides that judicial review is inappropri-

ate where there exists some other adequate remedy in a court, and the

availability of a remedy in the Court of Claims under the Tucker Act

has been held to be an adequate remedy."); see also Bowen v.

Massachusetts, 487 U.S. 879, 901 n.31 (1988) ("[S]uits under the

Tucker Act in the Claims Court offer precisely the sort of `special and

adequate review procedures' that § 704 requires to direct litigation

away from the district courts."). Therefore, to determine whether

Plaintiff's suit is cognizable under the APA, the court must first

examine whether he has an available remedy under the Tucker Act.

The Tucker Act actually consists of two parts: 28 U.S.C. § 1491,

and 28 U.S.C. § 1346(a)(2), which is commonly known as the "Little

Tucker Act." The Tucker Act grants jurisdiction to the United States

Court of Federal Claims "to render judgment upon any claim against

the United States founded either upon the Constitution, or any Act of

Congress or any regulation of an executive department, . . . or for liq-

uidated or unliquidated damages in cases not sounding in tort." 28

U.S.C. § 1491. The Little Tucker Act makes the jurisdiction of the

Court of Federal Claims concurrent with the district court for civil

actions or claims against the United States for $10,000 or less. 28

U.S.C. § 1346(a)(2). If a plaintiff's claim is for more than $10,000,

he must bring the action in the Court of Federal Claims.8 See United

States v. Hohri, 482 U.S. 64, 67 n.1 (1987).

_________________________________________________________________

8 It is not clear from Plaintiff's complaint whether this case would sat-

isfy the jurisdictional amount requirement of 28 U.S.C. § 1346(a)(2),

because the complaint contains no prayer for a specific amount of mone-

tary damages. A plaintiff can waive damages in excess of $10,000 to

remain in district court, see, e.g., Hahn v. United States, 757 F.2d 581,

587 (3d Cir. 1985); however, there is no indication that Plaintiff has done

so here.

13

The district court rejected Plaintiff's use of the Tucker Act to

establish jurisdiction in this case, because the court concluded that his

claims were primarily for equitable relief. J.A. at 83. The court deter-

mined that Plaintiff's claim for money damages in the form of back

pay was merely subordinate to his equitable claims. Although the

actual language of the Tucker Act does not specifically prohibit the

Court of Federal Claims from issuing injunctive relief, the United

States Supreme Court has recognized, as a general rule, that "the

Court of [Federal] Claims has no power to grant equitable relief."

Richardson v. Morris, 409 U.S. 464, 465 (1973) (per curiam). The

Tucker Act does, however, authorize courts to award injunctive relief

in limited circumstances, when such relief is necessary to provide an

entire remedy and when the injunction is "an incident of and collateral

to" an award of monetary relief. 28 U.S.C. § 1491(a)(2).9

The district court is correct in its assessment that Plaintiff's claim

for injunctive relief is the essence of his complaint. The injunctive

relief requested by Plaintiff would not be available under the Tucker

Act because it would not be an incident of, or collateral to, a mone-

_________________________________________________________________

9 The relevant portion of the statute provides:

To provide an entire remedy and to complete the relief

afforded by the judgment, the court may, as an incident of and

collateral to any such judgment, issue orders directing restoration

to office or position, placement in appropriate duty or retirement

status, and correction of applicable records, and such orders may

be issued to any appropriate official of the United States. In any

case within its jurisdiction, the court shall have the power to

remand appropriate matters to any administrative or executive

body or official with such direction as it may deem proper and

just.

28 U.S.C. § 1491(a)(2). This language authorizing injunctive relief in

limited circumstances does not appear in the Little Tucker Act; however,

it is generally recognized that district courts have authority under the

Mandamus Statute, 28 U.S.C. § 1361, to order the same type of injunc-

tive relief as the Court of Federal Claims. See 1 Moore's Federal Practice

¶ 0.65[2.-3], at 700.111; see also Richardson v. Morris, 409 U.S. at 466

("`[T]he Tucker Act did no more than authorize the District Court to sit

as a court of claims . . . .'") (quoting United States v. Sherwood, 312 U.S.

584, 591 (1941)).

14

tary award. See Adkins v. United States, 68 F.3d 1317, 1324 n.9 (Fed.

Cir. 1995) ("[T]he Court of Federal Claims was without authority

[under the Tucker Act] to direct the Secretary[of the Army] to pro-

mote [plaintiff] to the rank of colonel because such relief would not

be subordinate or collateral to a monetary award."). Indeed, Plaintiff's

claim for back pay10 would only arise if Plaintiff's request for retroac-

tive promotion were granted.

This case is different from a case where the plaintiff brings an

action to review the decision of a board for the correction of military

appeals after he has already been discharged from the service. See,

e.g., Sanders v. United States, 594 F.2d 804, 810 & n.10 (Ct. Cl.

1979) (en banc). In such a case, a successful plaintiff has a cause of

action for back pay from the date of his discharge to the date of the

court's determination. See id. Here, by contrast, Plaintiff has no pres-

ent claim for back pay because he is still serving in the Army without

a loss of his position or pay.

The district court would have no authority to order the Secretary

of the Army to promote Plaintiff to Lieutenant Colonel. As the United

States Court of Appeals for the Federal Circuit recently recognized in

a case factually similar to the instant case, a plaintiff's "prayer that

the Court of Federal Claims direct the Secretary to promote him to the

rank of colonel plainly was a request for impermissible `interfer[ence]

with legitimate Army matters.' Courts will not interject themselves

into the promotion process." Adkins, 68 F.3d at 1324 (quoting Orloff

v. Willoughby, 345 U.S. 83, 94 (1953)); see also Voge v. United

States, 844 F.2d 776, 780 (Fed. Cir.) ("This is like thousands of other

routine personnel decisions regularly made by the services which are

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10 There is considerable uncertainty about whether an award of back

pay is considered money damages or a form of equitable relief for pur-

poses of determining whether such claims are cognizable under either the

APA or the Tucker Act. In Bowen v. Massachusetts , 487 U.S. 879

(1988), the Supreme Court stated that "an order providing for the rein-

statement of an employee with backpay" is a form of equitable relief, not

damages at law. Id. at 893. In Ulmet v. United States, 888 F.2d 1028 (4th

Cir. 1989), this court arguably adopted the Bowen Court's dictum and

stated that an action for back pay was not exclusively within the Tucker

Act. Id. at 1030-31.

15

variously held nonjusticiable or beyond the competence or the juris-

diction of the courts to wrestle with."), cert. denied, 488 U.S. (1988).

The only possible relief that Plaintiff could get in this case would be

for the district court to order that Plaintiff's military records be cor-

rected and to remand the case for another review in due course by the

appropriate promotion selection board. Because Plaintiff cannot

receive a court-ordered retroactive promotion, there is no basis for

back pay in this case and, therefore, no monetary damages on which

to premise jurisdiction under the Tucker Act. Accordingly, the district

court correctly concluded that the Tucker Act does not apply in this

case. Since Plaintiff has no other adequate remedy in a court, review

of his case is proper under the APA.

B.

Although the district court did not adequately articulate the basis

for its jurisdiction in this case, it correctly analyzed the merits of

Plaintiff's final cause of action. The district court granted summary

judgment for Defendants on Plaintiff's claim that the Army failed to

follow its own regulations in reviewing his request for correction of

his military records.

We review a grant of summary judgment de novo , employing the

same standards used by the district court. Swanson v. Faulkner, 55

F.3d 956, 964 (4th Cir.), cert. denied, 116 S. Ct. 417 (1995).

The district court's review of the ABCMR's decision is quite lim-

ited. As the district court properly recognized, such decisions can be

set aside only "if they are arbitrary, capricious, or not based on sub-

stantial evidence." Chappell v. Wallace, 462 U.S. 296, 303 (1983);

Robbins v. United States, 29 Fed. Cl. 717, 725 (1993) ("The function

of the court is not to reweigh the evidence presented to the ABCMR.

Rather, the court is charged with determining `whether the conclusion

being reviewed is supported by substantial evidence.'") (quoting

Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir. 1983)).

After carefully reviewing Plaintiff's allegations and the record

below, we agree with the district court's ruling that the facts, taken

in the light most favorable to Plaintiff, cannot support a finding that

the ABCMR acted arbitrarily or capriciously, or without substantial

16

evidentiary support, in denying Plaintiff's requests. Therefore, we

determine that the district court was correct in granting Defendants'

motion for summary judgment as to Plaintiff's third cause of action.

V.

For all of the foregoing reasons, the order of the district court

granting Defendants' motion to dismiss or, in the alternative, for sum-

mary judgment, is hereby

AFFIRMED.

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