# Richard Walter Ricker and Oswald Bryan Salyer v. The United States

> United States Court of Claims · June 14, 1968 · 396 F.2d 454

URL: https://www.frixlaw.com/law-library/cases/9453724

## Case

- **Full name:** Richard Walter RICKER and Oswald Bryan Salyer v. the UNITED STATES
- **Court:** United States Court of Claims
- **Decided:** June 14, 1968
- **Citations:** 396 F.2d 454; 184 Ct. Cl. 402; 1968 U.S. Ct. Cl. LEXIS 122
- **Precedential status:** Published
- **Opinion:** Concurrence by Nichols
- **Judges:** Cowen, Laramore, Durfee, Davis, Collins, Skelton, Nichols
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9453724

## Opinion text

NICHOLS, Judge
(concurring):
This case presented me with difficulties, which I have resolved, but I do not see the path to decision as a mere following of settled precedents.
First, defendant has cited Rector, etc., Holy Trinity Church v. United States, 143 U.S. 457 , 12 S.Ct. 511 , 36 L.Ed. 226 (1892), a case I think should be of tener followed than it is. Here it is not in point, for this is not a Holy Trinity Church situation. In my concurring opinion in Eastern School et al. v. United States, 381 F.2d 421, 438 , 180 Ct. Cl. 676, 706 (1967), I indicate what I think the Holy Trinity Church case really stands for. I have faith that we will follow Holy Trinity Church when it is applicable as a precedent.
Second, by the pertinent statutes, Selection Boards merely recommend Public Law 86-155, 73 Stat. 333, 10 U. S.C. §§ 5701, 5702. If they lack power to decide, I question if United States v. Brown, 206 U.S. 240, 244 , 27 S.Ct. 620 , 51 L.Ed. 1046 (1907), is as conclusive as plaintiff imagines. The rule of Brown is, if a person disqualified by law to serve on a court-martial serves thereon, the sentence of that court-martial is void for lack of jurisdiction, and therefore is exposed to collateral attack in a back pay suit in this court. It could be a non sequitur that a nonpenal personnel action of a Service Secretary is likewise void if based on mere recommendation of a Board having a disqualified member. Recently in Juhl v. United States, 383 F.2d 1009 , 181 Ct.Cl. 210 (1967) cert. granted April 29, 1968, we *458 had to consider the jurisdiction of courts-martial in their historic setting. Whether we were right or wrong in that particular case, one cannot but see that the law applicable there has evolved in that sole area and has no relation to any other.
Third, I feel qualms about applying a law outside its literal command when I do not know its purpose. Despite the researches of counsel, their speculations, and ours, we really do not know why the Congress allows the same officer to sit on two successive “Hump Boards” when it is one that deals with line officers but forbids him to do so when it deals with staff officers. If we do not know the purpose, we do not know whether invalidating the Secretary’s personnel action is a proper way to implement it. The Congress did not expressly say this was to be the consequence of a breach. I am willing, however, to presume that in case of any tribunals having the powers imputed to these Boards, any provision respecting their makeup must be intended to protect those whose careers they are supposed to extend or terminate. In John A. Fletcher, Jr. v. United States, 183 Ct.Cl. -, 392 F.2d 266 (1968), we likewise presumed that regulations governing procedure before appeal boards in civilian adverse actions were intended for protection of employees, no other purpose appearing. The appropriate consequence for a breach therefore was invalidity of the removal. And so in this case. If it should appear that the involved provision was enacted, e. g., because service on “Hump Boards” was so irksome it should be rotated among senior officers, I think a different result would be indicated, but that would have to be shown.
Finally, I note that in the Brown case, and in our own decision cited by the court herein, Henderson v. United States, 175 Ct.Cl. 690 (1966), cert. denied 386 U.S. 1016 , 87 S.Ct. 1373 , 18 L. Ed.2d 455 (1967), the reason why the inclusion of an incompetent person on a tribunal permits a back pay suit in this court, is stated to be that the tribunal’s decision is “void.” In Henderson we called it “void ab initio,” which I suppose is even worse. It is as if the tribunal had never sat. See McClaughry v. Deming, 186 U.S. 49, 64 , 22 S.Ct. 786 , 46 L.Ed. 1049 (1902). That is a bothersome concept in the case of Selection Boards. They “recommend” lists of names, in the case of “Hump Boards” for retention, in the case of others, for promotion, retention, or “selection out.” If the Board, in the eyes of the law, never was, it would seem the Secretary had no jurisdiction to promote or retain those to whom it gave favorable consideration, and perhaps they now owe the Government for overpayments of salary and fringe benefits. This is a result too horrible to contemplate. Our decision does not imitate its authorities in calling the Selection Board recommendation “void” and common sense certainly dictates that we should not do so. But if it is not “void,” then we are not following our authorities but proceeding on a different theory, the nature of which is left unstated. I think it is nowadays considered good judgment generally to refrain from calling any act or decision “void” if other words will serve the purpose. Perhaps it suffices here to say the Secretary was arbitrary and capricious insofar as he took adverse action against anyone on the basis of a recommendation by an illegally constituted Board. If the purpose of the provision the Navy breached was to protect persons whom the Board might view with disfavor, that purpose would not require us to say or do anything adverse to the interests of persons not parties to this litigation, on whom the Board looked favorably.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9453724. Public record. Not legal advice.