Rawlins v. United States

NICHOLS, Judge,

concurring:

I join in Senior Judge Cowen’s opinion which deals very ably with the matters now before us. The only reason for writing anything separately is that the Act to be construed, Priv. L. No. 95-60, 92 Stat. 3817 (1978), is a consent to be sued and as such it is subject to the doctrine of strict construction which defendant would have us apply. Our Mitchell v. United States, 229 Ct.Cl. 1 , 664 F.2d 265 (1981), is not yet final, as it is pending in the Supreme Court on certiorari. I dissented, complaining that the court took strict construction too lightly. I do not wish it understood that I have abandoned or forgotten what I there said. I pointed out there that because of strict construction, Congress may intend to grant consent in a particular class of case, but fail to effectuate its intent through a technical drafting error that courts in other contexts would probably correct and apply as corrected. I pointed out Hopkins v. United States, 206 Ct.Cl. 303 , 513 F.2d 1360 (1975), rev’d, 427 U.S. 123 (1976), as a sad example. In that case, however, there was an unequivocal statutory consent to suits on contracts of certain nonappropriated fund agencies, leaving all suits not founded on contracts still barred. Congress was probably unaware — as are many able lawyers — that the federal employees who sue so commonly under 28 U.S.C. § 1491 do not do so for breach of their contracts of employment, except in unusual situations. If Senior Judge Skel- *333 ton’s dissent in Rawlins I ( 225 Ct.Cl. 367, 372 , 646 F.2d 459, 462 (1980)), was correct, it was because some such error happened here. Defendant here makes a plausible argument that our panel majority in Rawlins I was wrong, arguing that the consent is limited to instances of unlawful nonpromotion such as we deal with under our regular jurisdiction, and waives only limitations. Since the point is jurisdictional, a prior holding such as that of our previous panel does not foreclose it.

I apply the doctrine of strict construction to Priv. L. No. 95-60, as our former panel did not expressly do, or rather did so only in the context of a single not very relevant case, United States v. Testan, 424 U.S. 392 (1976). Judge Skelton, dissenting, would invoke this doctrine of strict construction to make the private law a nullity, as he could point to no reason for passing it unless to rid Congress for a season of Commander Rawlins’ importunities. I do not think strict construction requires us to impute such heartless conduct to Congress, though Judge Skelton’s position is nonfrivolous and perfectly tenable.

The private law refers to a "nonpromotion allegedly being the probable consequence of improper and inequitable actions within the Department of the Navy.” It seems absurd to tell us to consider such actions only to determine we can do nothing about them. The words are given meaning by the fact that they echo the words of our chief commissioner, going on also to state there is "equitably due the plaintiff * * * a retroactive promotion to the grade of captain.” 197 Ct.Cl. 972, 1017 . Resort to the source of language Congress employed in enacting its consent, to give meaning to its otherwise ambiguous language, is far different from actually rewriting the congressional language to correct a technical mistake. The language is, however, unambiguous insofar as it calls for relief if the Navy’s action was "inequitable.” If, however, we had to look for a legal error, it could be found in the forced substitution of a "special advisory board,” entirely nonstatutory in its operation, for the statutory Board for Correction of Naval Records, 10 U.S.C. § 1552 , which should have considered the case and advised the Secretary. The latter was wholly in error in supposing that such board was not authorized by *334 Congress to consider promotion passovers. See the chief commissioner’s report, 197 Ct.Cl. at 983, 986 . Moreover, the records assembled for the various selection boards that passed Rawlins over were illegal in that they did not fairly portray his record. Weiss v. United States, 187 Ct.Cl. 1 , 408 F.2d 416 (1969).

The Congress clearly did not intend the private law to be a nullity, and it is a fair inference it was persuaded by the chief commissioner’s recommendation and did not pass the bill introduced to relieve Commander Rawlins because, or largely because, it had denied itself the right to do this. It would be carrying strict construction into extremism to apply it against recovery here, though such a decision might have been salutary in inducing Congress to reconsider strict construction itself. I’d want to be sure of my law before voting to frustrate congressional intent for any purpose.