Sanders v. United States

NICHOLS, Judge,

concurring in which SMITH, Judge, joins:

I concur in the result, but I am unable to join in the court’s opinion as I disagree with some of the statements it contains.

This case was argued March 11, 1977, before a panel consisting of Judges Kunzig, Bennett, and myself. We deemed that any decision was likely to have a precedential *316 impact in view of the large number of cases pending involving situations that were similar at least in broad outline: that is, Armed Services officers were plaintiffs, whose careers were prematurely cut off by nonselection for promotion during the highly competitive post-Vietnam liquidation period, and who alleged themselves victims of unfair OERs. We did not believe we possessed the enlightenment we needed to render an informed and reasoned decision. We therefore directed further supplemental briefing, stating eight questions the briefers should answer. Order of March 15, 1977. ( 213 Ct. Cl. 724 .) The court subsequently decided to rehear the case en banc, and further delay was due to our desire to have our full complement of seven active judges on board for the rehearing.

Question 5 in the above order reflected the panel’s uneasiness whether in reviewing Correction Board decisions refusing to correct matters of "injustice” rather than legal error, we might be in danger of overstepping the limits of the congressional consent for the government to be sued in this court. In course of rebriefing and reargument, however, I became convinced that this was not a real issue in Captain Sanders’ case, and, therefore, any discussion of it would be dictum. I am surprised and far from gratified to note the role that judicial correction of injustice seems to play in the court’s opinion.

My analysis of the case commences with the fact that the Correction Board, or, technically, the Assistant Secretary on the Board’s advice, "voided” four OERs in Captain Sanders’ file. Whether they did this to correct error or injustice in my view does not matter. Apparently it was the latter as to at least two. They had authority to do it either way. Reale v. United States, 208 Ct. Cl. 1010 , cert. denied, 429 U.S. 854 (1976). The result of the voiding was that the OERs were legally never in his file. This kind of record correction is effective ab initio unless otherwise stated. Ray v. United States, 197 Ct. Cl. 1 , 453 F.2d 754 (1972). But they were physically present in the file, and part of the basis of three temporary major selection board decisions that passed Captain Sanders over. In the conditions of the times, unhappy as they were for career officers, selection board proceedings were necessarily much like lotteries, but *317 Captain Sanders was entitled by law to a fair lottery, not one weighted in favor of the house. He could not get one with void OERs in his file. In this regard, it seems to me that it flagrantly curtails his legal rights, to say he must show that, but for the void OERs, he would have been selected. I fully agree with the court as to that. There might be some cases of obvious harmless error, if the officer’s record was hopeless, apart from the void OERs, and there might be cases where a subsequent lottery sufficiently showed the error was harmless, but it seems to me legal error for the Board, and a matter of legal wrong to the officer, to allow these passovers to contribute to shorten the officer’s active duty career, in any other case.

Thereafter, plaintiff was passed over by one temporary and two permanent major Selection Boards, that did not have the void OERs before them but did have, without explanation or extenuation, the previous illegal passovers. All counsel agree that an officer with unexplained pas-sovers in his record has scant chance of selection. Since these previous ones were highly prejudicial, by a parity of reasoning the later Selection Board decisions were illegal too.

Thus it follows that Captain Sanders has never been legally passed over and is entitled to back pay and to serve on active duty as a captain until two boards have passed him over that have the facts as to prior passovers presented in such a way that they will not be prejudicial.

If my view were adopted by the court, obviously it would follow that under ordinary circumstances no Correction Board would void an OER unless it was prepared to void also any passover that occurred while the voided OER was still in the officer’s file. This appears to me to be as it should be. I do not think the voiding of OERs should occur for purely vanity reasons, yet the Air Force Correction Board appears to have seen its function in that light to have done what it did. Under the statutory scheme, 10 U.S.C. § 1552 , military records are not corrected to assuage someone’s amour-propre, but for substantial reasons related to the effect the record, uncorrected, has had and will have on the career and pecuniary welfare of the petitioner. Caddington v. United States, 147 Ct. Cl. 629 , 178 F.Supp. 604 (1959). Whether the Correction Board voided the OERs *318 on Captain Sanders for insufficient reasons is not before us, but its subsequent actions suggest to me that it thinks so. At any rate, there is an irreconcilable inconsistency between its voiding the OERs, and not voiding all the passovers, in the circumstances of Captain Sanders’ case. Speaking for myself, I am not one who would void an OER lightly, and I would not do it for such stock reasons as that the rating officer wants to repudiate his rating when he learns what effect it has had on the career of the one rated. But this is dictum, as the rightness of the voiding of Captain Sanders’ OERs has to be taken as given in the circumstances of the present case. The removal of the OERs, even if for cosmetic motives, creates a legal right to the further actions that the removal necessarily implies.

Thus the question of our power to review a Correction Board refusal to correct a record on the ground the record works an injustice, not amounting to a legal error, is a question not before us in the circumstances of this case. It is, however, forcibly presented by the reasoning and analysis of the court, and, therefore, I deem myself obliged to state my views, further dictum though they may be.

The court cites with approval the distinction, in this context, between "error” and "injustice,” as defined in Reale v. United States, supra at 1011. "Error,” it is there said, is "legal or factual error.” " 'Injustice,’ when not also 'error,’ is treatment by the military authorities, that shocks the sense of justice, but is not technically illegal.” We go on to say (p. 1012) that in correcting "injustice” Boards "exercise high discretionary functions in the management of the military establishment.” We say that intervention in these matters will often run into jurisdictional obstacles. Reale’s application to the Board for a retroactive promotion to active duty as a major we saw as an application for correction of injustice, not error, and we called it discretionary, saying we could see no abuse of discretion in refusing it. It seems clear to me now that even if we had seen abuse of discretion we could not have given the then Captain Reale retroactive active duty as a major. The reference to abuse of discretion was, therefore, no more than restriction of the holding to the case before us.

It now appears to me that a demand on a Correction Board to rectify "injustice” is really a moral claim, if no *319 legal or factual error can be cited to support the claim. Judicial reluctance if not refusal to adjudicate or even advise Congress on merely moral claims is old in our jurisprudence. United States v. Choctaw Nation and Chickasaw Nation, 179 U.S. 494, 532 (1900); United States v. Realty Company, 163 U.S. 427, 444 (1896); Montgomery v. United States, 49 Ct. Cl. 574 (1914). We now pass judgment on the morality of our ancestors’ doings respecting Indians, as e.g. in United States v. Oneida Nation, 217 Ct. Cl. 45 , 576 F.2d 870 (1978), but this is because the Indian Claims Commission Act, 25 U.S.C. § 70a, directs us to do so. Our predecessors very likely would have refused the assignment as contrary to the constitutional separation of powers, but ideas change. The original Tucker Act authorized suits in equity as well as law, as explained in Pauley Petroleum, Inc. v. United States, ante at 24, and Mitchell v. United States, ante at 95, so long as they demanded money only, but "equity” in those days referred to a system of equity jurisprudence, not to moral claims, which were considered outside of "equity” as well as "law.” Yet the Tucker Act, 28 U.S.C. § 1491 , as now codified, and a money claim thereunder, are the source of our jurisdiction to review decisions of Boards for Correction of Military Records. The doctrine of strict construction of the consent to be sued comes into play. United States v. Testan, 424 U.S. 392 (1976); United States v. King, 395 U.S. 1 (1969). It seems clear to me that this doctrine excludes from our jurisdiction merely moral demands on Correction Boards, and their refusals to grant relief, no matter how arbitrary or capricious, in merely moral cases.

In Flute v. United States, 210 Ct. Cl. 34 , 535 F. 2d 624 (1976) we had a Tucker Act money claimant who had been convicted by a court-martial and reduced in rank. He had asked the Correction Board to review his conviction and it had refused to do so under procedures he said denied him due process. We gave all that had happened along the line the extended review both parties seemed to expect, finding no error. But we pointed out sua sponte legislative history evidence that Congress had not meant Correction Boards to constitute another level in the otherwise sufficiently intricate system of appellate review of court-martial sentences. Rather, their function was meant to be of a *320 clemency character. Our conclusion was that complaints about lack of due process in the Board procedures were misdirected in such cases. Clearly the conclusion would have been the same if Flute had relied on an arbitrary and capricious refusal to act in his case. Flute had to show us a constitutional violation in his court-martial, the same whether he came to us directly or via the Board. What the Board did or did not do added nothing to his standing here.

I have no doubt that clemency is a word that might be usefully and informatively applied to much of the business of Correction Boards, and their jurisdiction of moral claims may include much of the same or may be different. Whatever claims for clemency or on moral grounds may include, they and Tucker Act claims are mutually exclusive.

I had supposed that the word "injustice” in 10 U.S.C. § 1552 referred to claims that were moral or founded on clemency grounds, having a strong appeal to the conscience of the court, but lacking a foundation in legal rights. Our feeling about "him who has borne the battle” may lead us to push hard against our jurisdictional constraints, perhaps at times to breach them, as allegedly, but not really in my view we are doing in Cherry v. United States, ante at 270, decided this day. Disputes about individual cases aside, the fact remains that the doctrine of strict construction of the consent to be sued is very much alive and our highest Court is, by its track record, almost always zealous to enforce it. Deciding cases on "injustice” grounds appears to me to invite reversal, and, therefore, caution in stating such grounds is, as doctors would say, indicated.

I am not sure that the majority opinion uses the word "injustice” in the sense above suggested, though it refers to the Reale definition with approval. I rather think it does not. It appears to me to track the opinion in Yee v. United States, 206 Ct. Cl. 388 , 512 F.2d 1383 (1975), a pre-Testan decision which repeatedly calls "injustice” what I would call "error.” The Board had restored plaintiff to active duty and corrected what it called an "injustice,” rightly so far as I know, in his previous separation. But, though often requested, it failed to put anything in Yee’s file that would explain the gap in service, with the result, deemed by the court inevitable, that he was passed over again and again. *321 If the court was correct in Weiss v. United States, 187 Ct. Cl. 1, 7 , 408 F.2d 416, 419 (1976) in saying that the record before the Selection Board must "fairly portray the officer’s record,” then clearly the officer has a legal right to have his record a fair one, and the failure was "error,” not just "injustice.” The idea seemed to be in Yee , semantically, that the characterization of Yee’s original separation as an "injustice” extended to and covered any other wrong that happened later on. It seems to me we had better face up to calling it "error” if a file before a Selection Board is misleading or incomplete, or else we must expect "strict construction of the consent to be sued” reversals. As I have said, I would respect the ability of a Selection Board to evaluate conflicts of opinion in OERs and would not lightly hold a file illegally composed just because it revealed such a conflict, but if it is illegally composed in truth and fact, then "error,” not merely "injustice” is involved.

In Skaradowski v. United States, 200 Ct. Cl. 488 , 471 F.2d 627 (1973), the trial judge’s opinion and findings, which we confirmed, showed a "factual error” in failure of official records to show an order, which plaintiff received orally, and obeyed, to serve a period of active duty. We somewhat gratuitiously, in our per curiam affirmance, said that the Board was arbitrary and capricious in not removing what we called an injustice. We were not yet instructed, by Testan, supra, that any Board might be arbitrary and capricious in our eyes and still we might not have a case under the Tucker Act enabling us to take corrective action. In Duhon v. United States, 198 Ct. Cl. 564 , 461 F.2d 1278 (1972) what we called an injustice was really a factual error that effected an injustice. Earlier cases then cited answer to the same analysis and bear no resemblance to the case at bar. Both by its text, and by my recollection of our deliberations, Skaradowski was the first case in which we noted that there must be a difference between "error” and "injustice” and considered what the difference might be and how it might affect our jurisdiction. If this court has ever reversed a Board for an arbitrary and capricious decision denying a moral or clemency claim, not invoking any legal right, we have done so inadvertently and lacking the light we now have from Testan . Now that we have it, we should not track old decisions in using the word *322 "injustice” needlessly and in a manner to invite Testan- type reversals. If a claimant has only moral or clemency grounds, lacking any invocation of a legal right, we must turn him down, and it makes no difference whether he has run his case through a Board or not.