Petition for Writ of Certiorari — Voge v. United States, 109 S. Ct. 365 (1988) (No. 88-81)
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Supreme Go
88-81 FILED
No. JUL 14 1988
rr
IN THE CLERK
Supreme Court of the Gnited States
OCTOBER TERM, 1988
VICTORIA M. VOGE,
Petitioner,
V.
UNITED STATES,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
EUGENE R. FIDELL
(Counsel of Record)
EDWARD J. WALINSKY
KLORES, FELDESMAN & TUCKER
2001 L Street, N.W.
Suite 300
Washington, D.C. 20036
(202) 466-8960
Counsel for Petitioner
Of Counsel:
Guy J. FERRANTE
KING & EVERHARD, P.C.
450 West Broad Street
Falls Church, Va. 22046
July 1988
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203
QUESTIONS PRESENTED
1. Are significant military personnel actions such
as the revocation of a medical officer’s hospital cre-
dentials, or passovers for promotion, justiciable?
2. Where the monetary and nonmonetary aspects
of a military personnel case arise from a common
nucleus of operative fact, may the Claims Court re-
fuse to “‘provide an entire remedy and complete the
relief afforded’’ by the money judgment, as provided
in the Tucker Act?
TABLE OF CONTENTS
I. THE COURT OF APPEALS’ DECISION CON-
FLICTS WITH CHAPPELL V. WALLACE ......
II. THE COURT OF APPEALS’ CONSTRUCTION
OF 28 U.S.C. § 1491(ax2) DEFEATS THE
CONGRESSIONAL PURPOSE OF NOT RE-
QUIRING PARALLEL ACTIONS FOR MONE-
TARY AND NONMONETARY RELIEF ...........
ks sasdanuececeuscecvesoncess
26
29
TABLE OF AUTHORITIES
CASES: Page
Bivens v. Siz Unknown Federal Narcotics Agents,
GOB UE. BBB GBTED ccccnncccncccnseccencerssstnssntsccsonss 20
Bowen v. Massachusetts, No. 87-712 (U.S. June 29,
BOT cccecttsnsansccnsstesestdhcnnenssnaizasummentinnnneebienmens 28
Bowman v. United States, 7 Cl. Ct. 302 (1985) .... 24
Chappell v. Wallace, 462 U.S. 296 (1988) ............. passim
Citizens to Preserve Overton Park, Inc. v. Volpe,
GBA TE, GR CITED. ccescitinssnccctvenistctssnniscesanesenes 21
Cole v. United States, 171 Ct. Cl. 178 (1965) ....... 25
Craft v. United States, 589 F.2d 1057 (Ct. Cl.
RITIED cninndeociosinsdcovsanvercteentenscntquibeditdanmianteaniweniane 26
Curran v. Laird, 420 F.2d 122 (D.C. Cir. 1969) .. 20
Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
SED CO ictsehninictistitchnadndeneeasndincebininttimnnnianios 18
Fowler v. Rhode Island, 345 U.S. 67 (1953) ......... 23
Gilligan v. Morgan, 413 U.S. 1 (1973) .........:0000+ 15
Grieg v. United States, 226 Ct. Cl. 258, 640 F.2d
4261 (1981), cert. ‘denied, 455 U.S. 907
CRD ssieistetistsssistilecensaniiainaeenciaiabaniaiitiinmsnasicenesoses 20
Guy v. United States, 608 F.2d 867 (Ct. Cl.
SRCED cctnns Ia ceildeiniahied iiatiahinna teiciltale i hieiinied eniideanace 25
Henderson v. United States, 175 Ct. Cl. 690 (1966),
cert. denied, 386 U.S. 1016 (1967) .................. 20
Jones v. United States, 6 Cl. Ct. 531 (1984) ......... 26
Jordan v. United States, 205 Ct. Cl. 65 (1974) ..... 25
Mark Smith Const. Co. v. United States, 10 Cl. Ct.
Ge IE iciiiitehiccereslanssnittcteisatinitenticaonianrineesuiiannnens 18
Northeast Georgia Radiological Assoc. v. Tidwell,
670 F.2d 507 (Sth Cir. 1982) .........cccccccsscosees 23
Sanders v. United States, 594 F.2d 804 (Ct. Cl
RR aN ENO AN Re HR 20,21,22
Table of Authorities Continued
Page
Scheunemeyer v. United States, 4 Cl. Ct. 649
STITT asssenisahiuhihaihaidlddiatinacietisienetibantusdsiestedtmntnacnecoseee 25
Schmidt v. United States, 3 Cl. Ct. 190 (1983) ..... 18
Shaw v. Hospital Authority of Cobb County, 507
Fe EE es MITE cenccscsesssstcssessnscvecsececes 23
Sibbach v. Wilson & Co., 312 U.S. 1 (1940) ......... 28
Sibron v. New York, 392 U.S. 40 (1968) ............... 27
Talley v. United States, 6 Cl. Ct. 807 (1984) ........ 26
Thompson v. City of Louisville, 362 U.S. 199
SUNIIEET -Sidhincidadlisandetbadeiiihsilthiilibddndhsietenedanecrocensssccese 23
United Mine Workers v. Gidbs, 383 U.S. 715
SUT ieericichdinendesitliaditnctobisisbubidiiinndstneassiobbnndnscanecsonese 18
Vietnam Veterans of America v. Secretary of the
Navy, 843 F.2d 528 (D.C. Cir. 1988) ............. 27
Voge v. United States, 11 Cl. Ct. 510 (1987),
affd in part & vacated in part, 844 F.2d 776
i ceaies passim
Ward v. City of Monroeville, 409 U.S. 57 (1972) .. 23
Yee v. United States, 512 F.2d 1383 (Ct. Cl.
POU midsncdbasahdasibdebusdiieidinidadechintehasebbnbendtdanennensecccee 22
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ............. 23
CONSTITUTION AND STATUTES:
cE REESE ET a to 18
I a cssenonnanes 17
BF ENTE oT 21
ii i iiieticcamisniians 22,23
a a ccestcentatetios 14
10 U.S.C. § 1552 (Supp. IV 1986) .....................000. 20,22
Rie ee | a 2
28 U.S.C. § 1295(aX3) (1982) ....... p Stbliiiaiieiniiniinidiiaidia ai 28
a Se III ctcbcnlicncdeccastbicnssscetntobsnapecmnete 25
Table of Authorities Continued
Page
28 U.8.C. § 1366) (ROBE) cccccccrcceseniscscnsssnesssssseseste 25
28 U.S.C. § 1600 CEIID ccscdscccscesssnsevescstvctenseenionn passim
Bin vom 2) 9) tee 18
28 U.S.C. § SRORED CIGD sceicscccncetiectcceetvertecesesernne 2
37 U.S.C. § 302 (Supp. IV 1986) ......ccccccccrcssccessees passim
Pub. L. No. 92-415, 86 Stat. 652 ..........cccccccseeseeees 19
RULES OF COURT:
BS. Ct. BR. BOA ccsccsccssccccseessctentsiaeeaeaanaanans 2
NAVY REGULATIONS:
Secretarial Instruction 7220.75A (Apr. 23, 1982)... 3,13
Secretarial Instruction 7220.75B (Sept. 23, 1983). 3,13
Bureau of Medicine and Surgery Instruction 6320.62
(May 20, 1961) .....:c..sccssceccesseccsssessscsoesctensscoosccs 4
MISCELLANEOUS:
S. Rep. No. 92-1066, 92d Cong., 2d Sess.
(197TZ) ..cccoccscesecsesseoesssnsiaiensseauteeeaaaaaanianan 19,27
IN THE
Supreme Court of the Anited States
OcTOBER TERM, 1988
Victoria M. Voce,
Petitioner,
We
UNITED STATES,
Respondent.
Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Federal Circuit
Victoria M. Voge respectfully prays that a writ of
certiorari issue to review the judgment of the United States
Court of Appeals for the Federal Circuit entered in her
case on April 19, 1988.
Opinions Below
The decision of the United States Claims Court is re-
ported at 11 1 Cl. Ct. 510 (1987) and reproduced in the
appendix to this petition (“Pet. RA Peale
petition for rehearing and suggestion for rehearing in banc
was filed. Rehearing was denied on May 26, 1988, and the
ion for rehearing in banc was declined on June 9,
1988. Pet. App. la, 3a.
Jurisdiction
The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1) (1982). Rehearing having been denied on May
26, 1988, the petition is timely filed under 28 U.S.C. §
2101(c) (Supp. [IV 1986) and Rule 20.4.
Statutory and Regulatory Provisions
The Tucker Act provides, in pertinent part:
(1) The United States Claims Court shall have
jurisdiction to render judgment upon any claim
against the United States founded either upon
... any Act of Congress or any regulation of an
executive department... .
(2) To provide an entire remedy and to com-
plete 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 ap-
plicable records, and such orders may be issued
to any appropriate official of the United States.
... 28 U.S.C. § 1491(a) (1982).
The Uniformed Services Health Professionals Special Pay
Act of 1980, as amended, provides, in pertinent part:
(aX4XB) Subject to subsection (c) of this section,
an officer entitled to variable special pay under
paragraph (2) ... of this subsection who has ten
or more years of creditable service is entitled to
additional special pay of $10,000 for any twelve-
month period during which the officer is not
undergoing medical internship or initial residency
(2) Under regulations prescribed by the Secretary
of Defense ... , the Secretary of the military
t concerned may terminate at any time
an officer’s entitlement to the special pay au-
thorized by subsection (aX4) ... of this section.
If such entitlement is terminated, the officer con-
cerned is entitled to be paid such special pay only
for the part of the period of active duty that he
served, and he may be required to refund any
amount in excess of that entitlement. 37 U.S.C.
§ 302 (Supp. IV 1986).
Navy regulations governing special pay for Medical
Corps officers provide:
7. The [Surgeon General of the Navy], under the
Chief of Naval Operations, may deny or termi-
nate [ASP]... under the following guidelines:
a. Commanding officers may recommend to the
[Surgeon General of the Navy] that an officer’s
entitlement to [ASP] be denied or terminated
based upon an inadequate performance level sup-
ported in that officer’s periodic or special fitness
b. A review board shall review the commanding
officer’s performance as reflected in the fitness
reports, the commanding officer’s letter of rec-
ommendation and the officer’s rebuttal, if
Pere
c. The [Surgeon General of the Navy] may deny
or terminate [ASP] by approving the recommen-
dation of {*’ review board that the recipient’s
professional performance is inadequate to justify
continuing payment of special pay as evidenced
by periodic or special officer fitness reports. ...
U.S. Navy, Secretarial Instruction 7220.75A (Apr.
23, 1982); see also U.S. Navy, Secretarial Instruc-
tion 7220.75B (Sept. 23, 1983) (requiring review
board to review “fitness reports, supporting doc-
uments, commanding officer’s letter, and the of-
ficer’s rebuttal’’).
Paragraph 14-11 of Chapter 14 (Credentials Review
Process) of Bureau of Medicine and Surgery Instruction
6320.62 (May 29, 1981) sets forth a “Fair Hearing Plan”
for Navy health care professionals. The full text follows;
pertinent portions appear in boldface.
The following actions are considered ad-
verse: suspending, limiting, or revoking priv-
ileges previously granted by the same activity.
a. Whenever adverse action is contemplated,
the practitioner shall be afforded effective and
timely notice of the right to the following pro-
cedural safeguards:
(1) Written notice that adverse action is
contemplated and the reasons therefor
(2) A meaningful hearing before the cre-
dentials review committee at which time
there must be an opportunity to be heard
in person and present evidence
(3) A reasonable opportunity to present
evidence and the testimony of witnesses
and to confront opposing witnesses
(4) If adverse action is recommended, a writ-
ten decision stating the evidence relied on,
the reasons for the recommendation, and the
right to appear before the commanding of-
ficer before final action is taken (see para-
graph 14-11i)
(5) Availability of qualified and independent
assistants [sic] in preparing the case ,
The foregoing enumeration of procedural rights
to be afforded a practitioner is intended as gen-
eral guidance for all adverse actions contem-
plated during the credentials review process. The
practices of each command shall be adapted to
provide for each of these rights.
b. Except as provided in paragraph 11j, a prac-
titioner shall be given at least 10 days following
his/her receipt of notice of the foregoing rights
to file a written request for a hearing. Any such
request shall be delivered to the commanding of-
ficer in person or by certified or registered mail.
A practitioner who fails to request a hearing
within the time and in the manner specified,
waives any right to such hearing and to any re-
view of the matter to which he/she might oth-
erwise be entitled. In, such an event, the
credentials review committee shall proceed to file
such findings and report to the commanding of-
ficer as it deems appropriate under the circum-
stances.
c. Except as provided in paragraph 11j, a hearing
shall be held not less than 15 nor more than 30
days from the date of the receipt for the hearing
request. At least 7 days prior to the hearing, the
commanding officer shall send the practitioner
notice of the time, place, and date of the hearing.
d. The commanding officer shall ensure, to the
extent practicable, that members of the cre-
dentials review committee hearing a particular
case can be objective and independent in their
deliberations. Any member with prior involve-
ment in the matter being considered should
normally be excused from taking part.
e. A hearing need not be conducted strictly ac-
cording to the rule of law relating to the ex-
amination of witnesses or presentation of
evidence. Any relevant matter upon which re-
sponsible persons customarily rely in the conduct
of serious affairs (including, but not limited to,
the standards of professional practice as estab-
lished by relevant professional literature) shall be
admitted or accepted as a matter of official notice
regardless of the admissibility of such evidence
in a court of law. Each party shall be entitled
to submit memoranda concerning any issue, and
such memoranda shall become a part of the hear-
ing record. The chairman of the credentials re-
view committee may, but shall not be required
to, order that oral evidence be taken only on oath
or affirmation. If official notice is taken of any
fact or scientific matter, the parties shall be so
informed and those matters shall be noted in the
hearing record.
f. The right to assistance in preparing the case
does not imply an absolute right to the assistance
of a representative at the hearing itself.
Attorneys and other professionals who desire to
represent a practitioner before the credentials re-
view committee shall request permission to do so
in writing prior to the commencement of the
hearing. Permission may be granted by [sic] the
sole discretion of the committee and, if so
granted, may be withdrawn at any time if the
presence of the representative impedes the com-
mittee in performing its assigned duties.
g. A record of the hearing shall be kept that is
of sufficient accuracy to ensure that an informed
and valid judgment can be made by any group
that may later be called upon to review the re-
cord and render a recommendation or decision in
the matter. The credentials review committee
may select any reasonable method to be used for
making the record (e.g., court reporter, electronic
recording unit, detailed transcription, or minutes
of the proceedings). A practitioner who desires
a method other than the one chosen by the com-
mittee may request same, but if the request is
granted, the practitioner shall pay any added ex-
pense occasioned by the alternate method.
h. Requests for postponement of a hearing shall
be granted by the credentials review committee
only upon a showing of good cause and with the
concurrence of the commanding officer. For the
convenience of the participants or for the purpose
of obtaining new or additional evidence or con-
sultation, the committee may recess the hearing
and reconvene without additional notice. Upon
conclusion of the presentation of evidence the
hearing shall be closed, and the committee shall
thereafter conduct its deliberations. Upon the
conclusion of deliberations, the hearing shall be
declared finally adjourned.
i. Within 15 days after final adjournment of the
hearing, the committee shall make a written re-
port of its findings and recommendations and
shall forward same, together with the hearing
record and all other documentation considered by
it, via the director of clinical services to the com-
manding officer for final action. If the report
recommends adverse action, a copy of the report
shall be provided to the practitioner coincident
with its forwarding to the commanding officer.
The practitioner shall have 5 working days fol-
lowing receipt of the report to file a request to
appear at Mast [traditional Navy procedure for
a commander to meet with persons subject to his
command for disciplinary, commendatory or other
reasons] to discuss the report with the com-
manding officer. Failure to request Mast within
the time allowed shall constitute a waiver of any
further review of the matter and acquiescence in
any final action the commanding officer takes
thereafter.
j. Notwithstanding any of the foregoing, a com-
manding officer is authorized to take summary
action to suspend or limit the credentials of a
practitioner when in his/her judgment the best
interests of the patients so required and a delay
in taking action might jeopardize the life or health
of a patient. In such event the commanding of-
ficer may issue any suspension or limitation order
necessary under the circumstances, but in no
event shall the suspension or limitation exceed a
period of 30 days. The credentials review com-
mittee shall hold a hearing in all cases of sum-
mary action, even though a practitioner may not
have requested one. The suspension or limitation
order itself shall be considered sufficient notice
to the practitioner, and the 7-day period referred
to in paragraph 14-lle shall be shortened to 3
days. The hearing shall be held and the commit-
tee’s report written in sufficient time for the lat-
ter to reach the commanding officer prior to the
end of the suspension or limitation period. (This
requirement may be waived by the commanding
officer, but the suspension or limitation cannot
exceed 30 days in any event.) The right to re-
quest Mast after receipt of the committee’s re-
port is not affected by summary action.
k. Final action on the recommendation of the
credentials review committee is the sole respon-
sibility of the commanding officer and shall be
based only on the report of the committee. The
commanding officer may not take action more
severe than that recommended by the committee,
but may take any lesser action deemed appro-
priate. Final action shall be documented in writ-
ing and delivered to the practitioner.
1. A credentials review committee report and
commanding officer’s final action that are
rightfully accomplished in accordance with this
chapter are not subject to withdrawal, alter-
ation, or change except by special authoriza-
tion by the Secretary of the Navy (through the
Board for Correction of Naval Records).
Statement of the Case
A
Dr. Victoria Voge, a career Navy physician who remains
on active duty, brought this action: (1) to recover $30,000
in Additional Special Pay (“‘ASP’’) under 37 U.S.C. § 302
(1982), and (2) to correct related naval records including
(a) those reflecting the withdrawal of her hospital creden-
tials, (b) adverse fitness reports, (c) a passover for pro-
motion to Captain, and (d) records of psychiatric evaluation
undertaken for retaliatory and improper purposes. All as-
pects of the case arose out of the same events and are
otherwise interconnected. The denial of ASP was expressly
predicated on the withdrawal of Dr. Voge’s credentials and
an adverse fitness report, J.A. 80,! which in turn also
referred to the withdrawal of credentials.
The decredentialing lies at the root of the problem, and
was effected in violation of applicable regulations by a
committee that included officers who had prejudged the
case and held key meetings without notice to Dr. Voge or
opportunity for her to participate. J.A. 36, 55-56. By the
time she was permitted to participate, it was already too
late because the case against her had gained unstoppable
momentum. The committee procedure was a sham for a
preordained command determination. Because the decre-
dentialing was defective, all of its administrative sequelae
were equally defective.
‘Citations to “J.A.” refer to the Joint Appendix in the Court of
Appeals.
10
B
From 1978 to 1981 Dr. Voge was assigned to the Naval
Safety Center in Norfolk, where her duties required her
to take professional positions that were highly critical of
the Naval Medical Command (formerly known as the Bu-
reau of Medicine and Surgery) and the Surgeon General
of the Navy. J.A. 40, 44, 90, 100, 116. Evidently she
developed a reputation for independence. That reputation
appears to have preceded her to her next duty station.
J.A. 40, 68.
In late 1981, Dr. Voge was transferred to the Naval
Regional Medical Center on Guam and given additional
responsibilities as command medical advisor and flight sur-
geon in charge of the branch clinic at the Naval Air Sta-
tion. The medical center commander immediately adopted
an unrelentingly hostile attitude toward her. As Judge Net-
tesheim observed from the bench, ‘‘what you have here is
an unblemished record until she sets foot on Guam and
then all heli breaks loose.” Cl. Ct. Tr. 22. For example,
she was summoned to the commanding officer’s office and,
on the basis of misinformation from third parties, was
reprimanded for something over which she had no control.
The commanding officer stated that he had “heard all
about”? Dr. Voge, and that she was considered a ‘“‘troub-
lemaker.”” She was ordered not to perform flight surgeon
duties, but to limit herself to the duties of a general med-
ical officer. J.A. 67.
Like civilian hospitals, Navy hospitals have a program
for credentialing medical personnel. Newly-assigned phy-
sicians receive credentials for 90 days, after which a de-
cision is made on permanent privileges. Dr. Voge was
therefore given 90-day privileges. Loss of hospital creden-
tials is a substantial blot on a physician’s professional rep-
utation and is likely to have an adverse effect on future
employment opportunities.
=
11
5, RE Al
In February 1982, the commanding officer told Dr. Voge
that her professional competence was in question based on
several clinical cases, but gave no details that would have
permitted her to respond. He announced that he felt she
had “serious problems,’’ and caused her to be examined
locally for a nonexistent psychiatric disorder. J.A. 40, 68,
105, as a result of which she was evaluated at a naval
hospital on the mainland and found fit for duty. J.A. 47,
105. On February 26, 1982, the commanding officer in-
formed Dr. Voge that she was on probation with the
Professional Credentials and Standards Committee, but
gave no reason for that action, and restored her to flight
surgeon duties. J.A. 68.
Ultimately, Dr. Voge’s credentials were revoked by the
hospital commander based on the “recommendation” of
the committee. J.A. 61. The procedures employed repeat-
edly violated the governing regulation. Thus, the commit-
tee met on March 9, 1982 without notice to Dr. Voge or
opportunity for her to participate. J.A. 36. It neither re-
quested nor examined her credentials from her prior duty
station. An undated addendum to the minutes of the meet-
ing summarily recorded that her initial 90-day privileges
were being extended for another 90 days. J.A. 38. This
violated the regulations, q 14-7) of which provides: ‘“Tem-
porary privileges are limited to a 90 day period.” J.A. 28.
On May 27, 1982, the committee met again. Once again
it did not invite Dr. Voge. Nonetheless, it recommended
to the hospital commander that adverse action be taken
against her credentials. J.A. 55. This ex parte action vi-
olated q a of the Fair Hearing Plan. By the time the
second meeting occurred, the action against Dr. Voge had
impermissibly gathered momentum without affording her
the basic right to participate, thus unfairly skewing the
decision against her and preventing the committee from
conducting the mind of “meaningful hearing’ and exer-
cising the kind of “objective and independent judgment”
required by {{ a(2) and d of the Fair Hearing Plan.
12
After Dr. Voge was informed of the committee’s rec-
ommendation, the commanding officer questioned her about
how she would feel when the committee found her unfit,
reminded her that he would soon be preparing her fitness
report, and opined that there was something wrong with
her. He visited her duty station and, in an astounding
breach of military and professional practice, told personnel
there that there was something medically wrong with Dr.
Voge. J.A. 60, 68, 70. He furnished her with a copy of a
proposed fitness report and informed her that it was both
adverse and extremely detrimental to her career. He of-
fered to rewrite it if she agreed to undergo two yewrs of
outpatient medical treatment. She refused. J.A. 100.
On June 15, 1982, the day before his own retirement,
the commanding officer submitted the fitness report and
minutes of the committee’s May 27, 1982 meeting to su-
periors in Washington.
Two days later the committee met again. Five of the
eight voting members in attendance had also been among
the seven voting members at the May 27 meeting. Two
senior medical officers who ostensibly recused themselves
for cause owing to their prior participation in the matter
nonetheless remained in the room and participated in the
discussion without formally voting. J.A. 55-56. This vio-
lated q d of the Fair Hearing Plan.
At long last, Dr. Voge was invited and permitted to
bring counsel, but by then the die was cast. The minutes
suggest that her input was given little attention or cre-
dence. In almost every instance, the committee’s summary
of her explanation was confined to irrelevant statements
taken out of context. The overwhelming thrust of the min-
utes was to demonstrate why each of her assertions failed
to support her position. Not surprisingly, given the mo-
mentum the matter had already achieved, the committee
recommended revocation of clinical privileges and, “‘if
13
agreeable to both C[ommander] V[oge] and the Navy Med-
ical Department,” additional training. J.A. 64.
Two weeks later, when the minutes were finalized, Dr.
Voge was permitted to meet with the new commanding
officer to discuss the matter. J.A. 71. She submitted a
formal rebuttal to all of the allegations, and fully explained
her actions. J.A. 65. He was obviously unimpressed, since
he notified her the same day that he was implementing
the committee’s recommendations and reassigning her.
Unsure of how to proceed, the commanding officer
sought guidance as to what to do with Dr. Voge. When
Washington responded that she should be sent to the Na-
val Regional Medical Center at Pensacola for 16 weeks of
additional training, he reconvened the committee, again
without notice to Dr. Voge. The committee, pliant as ever,
obliged with a recommendation that she have at least a
year’s training at one of the Navy’s four major teaching
centers. J.A. 72-73. Eventually, in 1983, Dr. Voge began
12 months of retraining with the Air Force before re-
turning to service with the Navy in Texas. She is now
stationed at the Navy Development Center in Warminster,
Pennsylvania.
Revocation of Dr. Voge’s credentials had serious side
effects. It was reflected in several of her fitness reports,
J.A. 101, 112, 114, led to the denial of ASP of $10,000
per year for three years, J.A. 88, 131, to which she would
otherwise have been entitled under 37 U.S.C. § 302 (Supp.
IV 1986), and resulted in her being passed over for pro
motion to the grade of Captain.
Navy regulations promulgated under 37 U.S.C. §
302(cX2) (Supp. IV 1986) require that decisions to deny or
terminate ASP rest on the recipient’s fitness reports. See
Secretarial Instruction 7220.75 supra.
14
Cc
Dr. Voge complained in accordance with Article 138 of
the Uniform Code of Military Justice, 10 U.S.C. § 938
(1982), without success. J.A. 77, 82. She also invoked the
military correction board process under 10 U.S.C. § 1552
(Supp. IV 1986), but the limited relief she received there
left in her record references to the revocation of her cre-
dentials as well as her passover for promotion. Eventually
she sued for money damages and the necessary related
record corrections under the Tucker Act.
In the Claims Court, the Government conceded Dr. Voge’s
entitlement to the ASP on the narrow ground that the
responsible authorities had considered records they were
barred from considering in making the decision to deny the
ASP. On summary judgment, a money judgment was en-
tered for Dr. Voge for the ASP, but the rest of her case
was dismissed. 11 Cl. Ct. 510 (1987), Pet. App. 21a. Holding
the fitness reports reviewable in an action challenging the
termination of ASP, Pet. App. 24a-28a, the court sustained
them on the basis of the correction board’s decision and
because it would not “second guess the medical judgments
of [Dr. Voge’s] superiors.” Pet. App. 33a. It also held that
the underlying revocation of her credentials was not re-
viewable. Pet. App. 3la. A timely motion for reconsidera-
tion was denied. Pet. App. 17a.
D
On appeal to the Federal Circuit, the parties again
agreed that Dr. Voge was entitled to ASP. Dr. Voge con-
tended that the decisior. of the Claims Court should be
termine the validity of the withdrawal of her credentials
and to grant relief, if warranted, as to any and all naval
records reasonably related to the events in controversy,
including the fitness reports. In the alternative, she argued
that if the Court of Appeals were to determine that the
15
Claims Court lacked jurisdiction to address those parts of
the case, the dismissal of her complaint should be vacated
or the decision modified and remanded with instructions
to transfer to the District Court for the District of Co-
lumbia. In any event, Dr. Voge argued, the Claims Court’s
decision to sustain her passover should be reversed and
remanded with instructions to set that action aside and
grant the usual relief in such cases (i.e., consideration by
another selection board as if she had not previously failed
of selection, with provision for back pay and retroactive
date of rank in the event she were selected by that board
for promotion).
The Court of Appeals affirmed the money judgment but
held that Dr. Voge’s record correction claims were outside
the Claims Court’s power because “there was no reason
to consider them in deciding’ her ASP claim. 844 F.2d
776, 781 (Fed. Cir. 1988), Pet. App. 13a. It further held
that the record correction claims were nonjusticiable. Pet.
App. 9a-12a.
After concluding, in Part I of the decision, that “‘the
procedural regularity of the termination [of Dr. Voge’s
ASP] would have been fully reviewable in the Claims
Court” if the United States had not conceded procedural
error,’ the court went on incorrectly, in Part II, to char-
acterize “‘the heart of this dispute” as “whether the court
may review the substantive merits of the decision to ter-
minate ASP.” Pet. App. 9a. Finding a lack of standards
to guide the exercise of judicial power, it concluded that
the decision to deny ASP is nonjusticiable, analogizing it
to such cosmic policy questions as the training, equipping
and control of a state’s National Guard. See Gilligan v.
Morgan, 413 U.S. 1, 10 (1973), cited at Pet. App. lla.
The court thus permitted the Government’s narrow conces-
* See also Pet. App. 12a & n.2 (“Claims Court had the authority to
enter judgment for the amount of ASP that was concededly due because
of procedural errors’’).
a iia
16
sion of procedural error as to the ASP to define the Claims
Court’s Tucker Act authority “to provide an entire remedy
and complete the relief afforded’ by the money judgment.
In a footnote, the court sought to distinguish cases in-
volving the denial of all pay and allowances through al-
legedly wrongful discharges, on the one hand, and
“relatively minor and routine military personnel actions,
like the denial of ASP,” on the other. Pet. App. 12a n.1.
Another footnote commented that there was no constitu-
tional violation in the decredentialing, composition of ser-
vice records or termination of ASP, “‘sav[ing] for another
day the difficult question of the court’s power of review
when a clear constitutional violation is established.” Pet.
App. 12a n.2.
In Part III, the Court of Appeals determined that the
other relief sought could not be justified under §
1491(aX2)’s grant of authority to “provide an entire rem-
edy and to complete the relief afforded by the [money]
judgment” by correcting applicable records. It reasoned
that the fact that the ASP cause of action could be re-
solved without resort to antecedent records destroyed any
nexus between the ASP and the records. Pet. App. 13a-
14a. It further reasoned that since it was for the Navy
to pass on the merits of the decision to deny ASP, for
the Claims Court to decide whether there was error in
the “preparation and content” of Dr. Voge’s records would
constitute an indirect means of doing what that court “is
foreclosed from doing directly.’’ Pet. App. 14a. The court
added that the correction board’s review of the entire case
did not enlarge “the justiciability of its decision in the
Claims Court.” Id.
Finally, in Part IV, the Court of Appeals inexplicably
dismissed as a request for an impermissible judicially-or-
dered promotion Dr. Voge’s thoroughly conventional prayer
for invalidation of her passover. Pet. App. 15a.
———-- in.
a a
17
Reasons for Granting the Writ
This case raises important and troublesome questions
concerning the reviewability of military records and the
role of the United States Claims Court in that process.
The decision below conflicts with Chappell v. Wallace, 462
U.S. 296 (1983), by denying military personnel the judicial
forum they have long enjoyed for the vindication of their
rights under the record correction and promotion statutes
as well as pertinent service regulations that have the force
of law.
Given the size and complexity of the military community
(which today numbers over 2,000,000 active duty mem-
bers), the unavailability of alternative remedies, see Chap-
pell, and the need to assure military medical personnel (all
of whom are volunteers) that their professional standing
will be protected against arbitrary action, the issues pre-
sented have potentially far-reaching ramifications in an
area charged with the public interest.
In particular, the case calls upon the Court to determine
the power of the Claims Court to grant nonmonetary relief
necessary to “provide an entire remedy and to complete
the relief afforded by” a money judgment under the Tucker
Act. 28 U.S.C. § 1491(aX2) (1982). The decision below ef-
fectively and improperly insulates from judicial review a
broad range of military personnel actions that might be
characterized as ‘“‘routine’’—as well as many others—on the
unfounded notion that they are nonjusticiable.*
* We thought the Court of Appeals might have used the term loosely
to refer to some other reason for denying relief under § 1491(aX(2), but
its failure to clarify its intent in response to the rehearing petition,
see Pet. App. la, 3a, compels an inference that it intended “‘justicia-
bility” in the usual Article III sense.
By so ruling on the very nonmonetary aspects of Dr. Voge’s case
over which it held the Claims Court lacked jurisdiction, the court went
beyond anything the Government had argued for, disregarded basic
18
So sweeping a curtailment of the access of military per-
sonnel to the courts for nonmonetary aspects of pay dis-
putes that may well have greater long-term consequences
than the pay issues themselves is irreconcilable with the
promise of judicial relief held out in Chappell, and should
not be permitted to enter Tucker Act jurisprudence with-
out this Court’s express approval. Additionally, the deci-
sion below compels litigants to bring separate actions to
secure money damages (in the Claims Court) and related
limits of the appellate process and effectively extinguished Dr. Voge’s
right to judicial review under other legislation. ‘‘A court lacks discretion
to consider the merits of a case over which it is without jurisdiction.
...” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379 (1981);
Mark Smith Const. Co. v. United States, 10 Cl. Ct. 540, 541 (1986)
(‘‘Lack of subject matter jurisdiction is a matter in abatement and,
when a court dismisses a case on that ground, it should not also ad-
judicate the merits of the case’’). The justiciability ruling would likely
be given preclusive effect in a district court, thus preventing Dr. Voge
from seeking relief as to the nonmonetary aspects of the case under
the general grant of federal question jurisdiction. What is more, the
ruling improperly arrogates to the Claims Court (an Article I court)
and the Federal Circuit the power to control access to other federal
courts under statutes for which they have no responsibility. Plenary
review is essential, therefore, not merely to afford Dr. Voge a judicial
forum for viable nonmonetary claims, but to restore the proper balance
between the Claims Court and Federal Circuit, on the one hand, and
the district courts and regional courts of appeals, on the other.
Bifurcation of the monetary and nonmonetary aspects of this case
would be artificial (because they arise from the same common nucleus
of operative fact, cf. United Mine Workers v. Gibbs, 383 U.S. 715, 725
(1966)), wasteful (because the Claims Court has already reviewed the
record) and, as we explain in Point II, plainly contrary to the purpose
of § 1491(aX2). Nonetheless, if the nonmonetary aspects really do lie
beyond the reach of the Claims Court, the remedy should include a
remand with instructions to determine whether they should be trans-
ferred. 28 U.S.C. § 1631 (1982). If, as the Claims Court has elsewhere
correctly held, transfer of nonmonetary portions of a case is appropriate
where monetary claims are barred by the statute of limitations, Schmidt
v. United States, 3 Cl. Ct. 190, 194 (1983), then a fortiori transfer
should be allowed where, as here, a plaintiff has prevailed on a mon-
etary claim.
4
‘
Ape ve SE,
ae:
;
19
record corrections (in the district courts), notwithstanding
Congress’s stated intent, in the 1972 Tucker Act amend-
ment, to render such two-track litigation unnecessary. Pub.
L. No. 92-415, 86 Stat. 652; S. Rep. No. 92-1066, 92d
Cong., 2d Sess. (1972), 1972 U.S. Code Cong. & Ad. News
3116, 3118 (noting that existing law required wrongfully
discharged employee to bring additional action in district
court to obtain reinstatement).
If the Tucker Act issue were confined to military pay
litigation, that would be reason enough for a writ of
certiorari to issue. Section 1491(aX2), however, is not con-
fined to military cases. As a result, the decision below is
likely to have erroneous spillover effects in other Tucker
Act litigation, thus furnishing a further reason for this
Court to grant review.
Finally, the decision below reflects a misuse of power
by a court of limited jurisdiction, effectively closing the
doors of the district courts to matters which they should
hear if the Claims Court will not. To the extent that the
records the Court of Appeals found nonjusticiable were
the stated basis for the denial of ASP, by definition they
had a sufficient practical nexus to the ASP to subject them
to review under § 1491(a\2). If that court was correct in
holding that the Claims Court lacked jurisdiction to review
the preparation and content of Dr. Voge’s records, its
ruling on justiciability improperly encroached on federal
question and declaratory judgment matters over which
Congress has given the district courts and regional courts
of appeals exclusive jurisdiction. Any aspect of the case
that lies outside the authority of the Claims Court should
have been transferred elsewhere.
t
THE COURT OF APPEALS’ DECISION CONFLICTS
WITH CHAPPELL V. WALLACE
In Chappell, this Court explained, in the course of re-
fusing to allow servicemen to bring Bivens actions against
20
their superiors,‘ that they could nonetheless invoke the
record correction process created by Congress, 10 U.S.C.
§ 1552 (Supp. IV 1986), and obtain judicial review if dis-
satisfied with the results. 462 U.S. at 303 (citing Grieg v.
United States, 226 Ct. Cl. 258, 640 F.2d 1261 (1981), cert.
denied, 455 U.S. 907 (1982), and Sanders v. United States,
219 Ct. Cl. 285, 594 F.2d 804 (1979)). While Chappewi
involved allegations of racial discrimination, neither Grieg
nor Sanders involved such issues, and nothing in Chappell
suggests that it should be so limited.
Moreover, nothing in Chappell suggests that the broad
range of military personnel actions is immune either to
the record correction process or, as the Court of Appeals
has sweepingly held, to judicial review thereafter. Indeed,
the petitioners in Chappell complained of such adverse per-
sonnel actions as duty assignments and performance eval-
uations, 461 U.S. at 297, each of which would certainly
seem to be “routine” in an armed service.
The Court of Appeals got around these inconvenient
facts by the simple expedient of ignoring Chappell.*
What happened to Dr. Voge was unquestionably action-
able and justiciable. The denial of ASP is not among the
‘narrow band of matters” that turn on strategy or tactics
so as to require peculiarly military technical expertise, and
therefore are not reviewable as a matter of separation of
powers. See Curran v. Laird, 420 F.2d 122 (D.C. Cir.
1969). Absent this constitutional concern, the justiciability
* Bivens v. Siz Unknown Federal Narcotics Agents, 403 U.S. 388
(1971).
’ The Court of Appeals also saw no need even to mention Henderson
v. United States, 175 Ct. Cl. 690, 701 (1966), cert. denied, 386 U.S.
1016 (1967), where the validity of military personnel actions underlying
a money claim was (properly) examined. That the court displayed so
cavalier an attitude toward circuit precedent is its problem, rather than
this Court’s, but its failure even to cite, much less distinguish, key
precedents, does little to instill confidence in its efforts.
Ol aA aa a ot th Bh A nr MORRIA jase eer
21
of military personnel record claims is governed by the
Administrative Procedure Act (““APA’’). Sanders, supra,
at 812; 5 U.S.C. § 701(a) (1982).
Where, as here, no statute precludes review, justicia-
bility turns on whether there is “law to apply.” Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410
(1971). That standard is met in this case, just as this Court
unmistakably implied that the sailors’ claims were justi-
ciable in Chappell.
ASP is automatic unless an affirmative decision is made
to deny it. The Government correctly conceded below that
this distinguishes it from other types of special pay where
the grant itself is discretionary. If judicial review was
available because the ASP decisionmakers considered doc-
uments they were barred from considering, it is impossible ~
to see why it would not also be available to determine
whether the underlying documents themselves were arbi-
trary, capricious, unsupported by substantial evidence, or
otherwise not in accordance with law (or, as here, appli-
cable agency regulations). Contrary to the Court of
Appeals’ assertion that ‘“‘there are no tests or standards
for the court to apply in determining whether the decision
to terminate ASP is correct,” Pet. App. 10a, the Navy’s
ASP-termination regulations quoted above furnish a suf-
ficient framework for meaningful judicial review; they state
the applicable standard and describe the evidentiary basis
that must be considered. If the statutory ‘feasible and
prudent alternative’”’ standard furnished “law to apply’’ in
Overton Park, the Navy’s ASP regulations surely pass
muster.
The decredentialing that underlay both the fitness re-
ports and the ASP termination was governed by the even
more detailed procedural regulations set forth in the Fair
Hearing Plan. Those regulations were violated in several
material respects that deprived Dr. Voge of a fair admin-
22
istrative determination. These Navy regulations too satisfy
the “law to apply’”’ requirement.
Military passovers are regularly reviewed to determine
whether promotion consideration was on “a fair and eq-
uitable basis.” Sanders, supra, at 813. The test has also
been stated as requiring that the records “be complete
and not misleading.” Yee v. United States, 512 F.2d 1383,
1387 n.7 (Ct. Cl. 1975). These formulae are well-accepted
and provide “law to apply.’”®
Both the denial of ASP and the decredentialing, and
indeed, Dr. Voge’s entire military record, are reviewable
by the Board for Correction of Naval Records for “‘error”’
or “injustice.” 10 U.S.C. § 1552 (Supp. IV 1986). Para-
graph | of the Fair Hearing Plan expressly indicates that
the BCNR may review a decredentialing. Judicial review
is then available to determine whether the Constitution or
a statute or regulation has been violated, applicable pro-
cedure has been disregarded, or the decision is arbitrary,
capricious, an abuse of discretion, or unsupported by sub-
stantial evidence. 5 U.S.C. § 706 (1982); Chappell, 462 U.S.
at 303. Once again, there is “law to apply.”
None of the cases cited by the Court of Appeals stand
for the proposition that Tucker Act jurisdiction is un-
* Part IV of the Court of Appeals’ decision, dismissing Dr. Voge’s
attack on her passover as an impermissible action for a promotion,
Pet. App. 15a, is mistaken both as a description of what she sought
and as a statement of the law. Dr. Voge never asked the Claims Court
for a promotion, since she can only be promoted by action of a selection
board. However, she does have a right to have the Navy directed to
remove an invalid passover so her future chances for selection are not
prejudiced. A judgment voiding a passover is not the same as a judi-
cially-ordered promotion. As this Court observed in Chappell, correction
boards have authority to award back pay and retroactive promotions,
and such decisions are subject to judicial review. 462 U.S. at 303.
Expungement of invalid passovers is integral to the record-correction
process, e.g., Sanders, supra, at 820 (ordering removal of passovers
and opportunity for further consideration for selection), as ‘‘previous
passovers may detrimentally affect promotion opportunities.” Jd. at 819.
i ai aE RP emai ae tS coy PUR Fy
23
available where military pay has been wrongly withheld.
Indeed, the court’s affirmance of the judgment for $30,000
is at war with its conclusion that ASP determinations are
nonjusticiable. The court held that ASP denials may be
reviewed for violation of procedural requirements, but not
for agency abuses of discretion. Under the plain language
of 5 U.S.C. § 706 (1982), this holding is untenable. APA
review clearly extends to both types of error. Id. §
706(2XA), (D).
In addition to the effect on Dr. Voge’s access to the
district court, see note 3 supra, the Court of Appeals’
misunderstanding of justiciability, unless corrected, is likely
to have mischievous effects in other military personnel
litigation. Its assurance that it intends to distinguish be-
tween discharges that lead to a denial of all pay and al-
lowances and “relatively minor and routine military
personnel actions, like the denial of ASP,” Pet. App. 12a
n.1, provides no comfort. Loss of $30,000 is hardly a ‘‘mi-
nor” matter; many Tucker Act cases have involved far
less.’
A physician’s loss of credentials is likely to have far-
reaching professional and pecuniary sequelae, much like
disciplinary actions imposed by a court or bar on an
attorney. Loss of hospital privileges is actionable. E.g.,
Northeast Georgia Radiological Assoc. v. Tidwell, 670 F.2d
507, 511-12 (5th Cir. 1982); Shaw v. Hospital Authority of
Cobb County, 507 F.2d 625 (5th Cir. 1975). Similarly, mil-
itary passovers have significant long-term active duty and
retired pay implications, and have often driven Tucker Act
litigation.
7 Non-Tucker Act cases involving much smaller amounts may readily
be found in the United States Reports. E.g., Ward v. City of Monroeville,
409 U.S. 57 (1972) ($100 fine); Thompson v. City of Louisville, 362
U.S. 199 (1960) ($20 fine); Fowler v. Rhode Island, 345 U.S. 67 (1953)
($5 fine); Yick Wo v. Hopkins, 118 U.S. 356 (1886) ($10 or 10 days).
24
None of these are ‘minor’ matters, and if the Court
of Appeals had in mind a de minimis principle, cf. Bowman
v. United States, 7 Cl. Ct. 302, 311 (1985), it picked a
totally inappropriate vehicle in which to apply it. Whether
one or another of the types of official action complained
of by Dr. Voge is fairly characterized as ‘“‘routine’”’ (and
it is impossible to relegate the revocation of a physician’s
credentials to that category), we know of no authority that
immunizes “routine” official action from judicial review.
Indeed, we trust the day will never come when lawless
governmental action may be defended or insulated from
judicial review on the theory that mere matters of “rou-
tine” are in issue.
Certainly nothing in Chappell suggests such a limitation.
Neither of the cases cited by the Court, with apparent
approval, 462 U.S. at 303, to illustrate the record-correc-
tion process and judicial review thereof can fairly be said
to have involved anything other than “run of the mill”
military personnel litigation.
Finally, the Court of Appeals misframed the issue by
treating Dr. Voge’s effort to obtain relief with respect to
the documents relied on in the termination of her ASP as
simply an invitation to choose between competing medical
judgments. Deciding whether a fitness report was infected
by bias and prejudice or whether the decredentialing re-
flected prejudgment or secret proceedings in violation of
regulation requires no medical judgments to be reexam-
ined.
But even if it did, that would not preclude judicial re-
view. Until this case, it was clear that fitness reports and
other service records were reviewable not only for pro-
cedural regularity (e.g., were they prepared by the proper
*In addition, the Claims Court can remand to a correction board
with instructions to have medically-trained personnel assigned to that
board for a particular case. Cl. Ct. Tr. 32 (Nettesheim, J.).
25
person? did they cover the proper reporting period? was
the subject afforded an opportunity to respond or, where
applicable, the right to counsel?), but also for factual errors
or substantive unfairness. Chappell’s promise of judicial
review for ‘substantial evidence’’ indicates as much. 462
U.S. at 303.
If allowed to stand, therefore, the decision below would
wrongly thwart judicial review of such substantive issues
as whether records were infected by bias and prejudice or
whether any factual determinations were supported by sub-
stantial evidence. The Claims Court (or, presumably, a dis-
trict court whose jurisdiction was invoked under § 1331
or the Little Tucker Act, 28 U.S.C. § 1346(a) (1982)) could
never (a) decide whether a physical disability evaluation
board had entered the wrong diagnosis or fitness for duty
finding, (b) invalidate a fitness report because the report-
ing officer was misinformed as to the reported-on officer’s
responsibilities, or (c) set aside, for lack of evidentiary
support, a finding that an individual was, for example, gay
or a security risk.®
Review in this Court is essential to untangle the knots
in the Court of Appeals’ analysis and redirect Tucker Act
doctrine to the path contemplated in Chappell.
* Since one would never know it from the Court of Appeals’ decision,
it should be stressed that the substance of military personnel deter-
minations has been subject to judicial review in the past. E.g., Guy v.
United States, 608 F.2d 867, 870 (Ct. Cl. 1979) (collecting cases, and
recognizing that jurisdiction lay to test whether a fitness report was
an objective and accurate portrayal of performance); Jordan v. United
States, 205 Ct. Cl. 65, 72-73 (1974) (on the proofs) (fitness for duty
determinations may be set aside if evidence as a whole is less than
substantial); Cole v. United States, 171 Ct. Cl. 178, 195-96, 198 (1965)
(on the proofs) (board of inquiry findings found unsupported by sub-
stantial evidence); Scheunemeyer v. United States, 4 Cl. Ct. 649, 650-
51 (1984) (reviewing factual accuracy of fitness report).
26
Il
THE COURT OF APPEALS’ CONSTRUCTION OF §
1491(aX2) DEFEATS THE CONGRESSIONAL PURPOSE
OF NOT REQUIRING PARALLEL ACTIONS FOR
MONETARY AND NONMONETARY RELIEF
Contrary to the Court of Appeals’ decision, it makes no
difference, for purposes of the availability of relief under
§ 1491(aX2), which feature of a case occasions the money
judgment. The court appears to have concluded—notwith-
standing its theory that ASP denials are nonjusticiable—
that although the ASP could be set aside because of one
procedural defect, § 1491(aX2) is inapplicable to documents
related to other flaws (procedural or substantive) that in-
fected the ASP denial. This analysis is fundamentally
flawed.
The particular error that impelled the Government’s
concession and the judgment for $30,000 was that certain
fitness reports were considered by those who denied the
ASP in violation of a regulation that prescribed which
records could be considered for that purpose. Pet. App.
26a. This error was not advanced by Dr. Voge, and the
Government’s voluntary disclosure of it can no more alter
the scope of the case or the power to grant relief under
§ 1491(aX2) than did the offset in Craft v. United States,
589 F.2d 1057, 1058-59 (Ct. Cl. 1978) (per curiam). The
records relief sought here was clearly “incident of and
collateral to” the claim she framed. The Government can-
not, by a concession, undo that fact in order to oust a
court of jurisdiction conferred by Congress and properly
invoked by a plaintiff.’
° Cf. Talley v. United States, 6 Cl. Ct. 807, 811 (1984) (plaintiff not
allowed “to perform surgery” on claim to remove monetary prejudice
to defendant’”’); Jones v. United States, 6 Cl. Ct. 531, 534-35 (1984)
(denying leave to amend complaint to thwart laches defense).
27
The fact that the Government concedes part of a case
does not relieve the trial court of the obligation to adju-
dicate other properly presented issues, any more than a
confession of error bars an appellate court from examining
the record for itself. £.g., Sibron v. New York, 392 U.S.
40, 58 (1968). It is therefore appropriate to consider what
would have happened if the Government had not conceded
the point it chose to admit here. The case would have
been litigated on the basis of Dr. Voge’s challenge to the
denial of ASP, which would have entailed an examination
of the documentary basis for that action, since the Navy’s
ASP regulation defines the record on which such a decision
must rest. It would have proceeded like countless cases of
personnel who are discharged and in which the Claims
Court examines underlying records to which the money
claim can fairly be traced.
If the Court of Appeals is correct, however, no plaintiff
who succeeds in having a passover set aside and in being
restored to active duty could hope to be promoted there-
after, since his or her record would continue to suffer from
the very flaws that led to the passover in the first place.
Congress cannot have intended this, and this Court’s prec-
edents do not so hold, yet such is the logical outcome of
the Court of Appeals’ decision.
Neither § 1491(aX2) nor its legislative history support
the Court of Appeals’ interpretation, whether the focus is
on review for procedural regularity or for substantive ac-
curacy or fairness. A principal purpose of the 1972 Tucker
Act amendment was to render it unnecessary for liti-
gants—military or not—to obtain money relief in the (then)
Court of Claims and all other relief in a district court. S.
Rep. No. 92-1066, supra. The crabbed reading invented by
the Court of Appeals conflicts with this objective, finds no
support in the cases, and disregards the plain meaning of
the statute. Indeed, at a time when one circuit after an-
other has had to wrestle with the propriety of claim split-
ting by litigants, see Vietnam Veterans of America v.
28
Secretary of the Navy, 843 F.2d 528, 535 (D.C. Cir. 1988)
(noting intercircuit conflicts), it is anomalous that the Fed-
eral Circuit refused jurisdiction over parts of a case that
were properly joined as contemplated by Congress. Here,
as in Bowen v. Massachusetts, No. 87-712 (U.S. June 29,
1988), slip op. at 31 & n.50, there should be no need to
split the case into two parts. Had the court correctly con-
strued § 1491(a\X(2), instead of disavowing jurisdiction over
the nonmonetary aspects, there would be no need even to
consider bifurcation and transfer. See note 3 supra.
While a nexus must exist between the money judgment
claim that triggers Tucker Act jurisdiction and the related
relief sought under § 1491(aX2), that requirement is amply
met by the facts of this case. The ASP termination rested
expressly on Dr. Voge’s decredentialing and fitness reports
that referred back to the decredentialing. The ASP reg-
ulation, moreover, specifically links ASP terminations to
fitness reports and performance. The Court of Appeals’
observation, therefore, that ‘(t]he regularity of [Dr. Voge’s]}
military records and the actions of her superiors in eval-
uating her performance as a doctor and officer is entirely
unrelated to” the ASP termination decision, Pet. App. 13a,
is an “appeal to unreality.” Sibbach v. Wilson & Co., 312
U.S. 1, 18 (1940) (Frankfurter, J., dissenting).
Because Congress centralized Tucker Act appeals in the
Federal Circuit, 28 U.S.C. § 1295(aX3) (Supp. IV 1986),
there can never be a conflict among the circuits on the §
1491(aX2) issue. As the Court of Appeals’ misconstruction
of that important provision is egregious and will affect a
broad range of military and civilian litigants, plenary re-
view is urgently needed.
29
Conclusion
If the armed services are to attract the highly qualified
medical professionals they plainly need, those personnel
must be assured that they will be treated fairly and in
accordance with law. The petition for a writ of certiorari
should be granted.
Respectfully submitted,
EUGENE R. FIDELL
(Counsel of Record)
EDWARD J. WALINSKY
KLORES, FELDESMAN & TUCKER
2001 L Street, N.W.
Suite 300
Washington, D.C. 20036
(202) 466-8960
Counsel for Petitioner
Of Counsel:
Guy J. FERRANTE
Kinc & EVERHARD, P.C.
450 West Broad Street
Falls Church, Va. 22046
July 1988
la
APPENDIX A
Note: This Order has not been prepared for pub-
lication in a printed volume because it does not
add significantly to the body of law and is not
of widespread legal interest. It is a public record.
It is not citable as precedent.
United States Court of Appeals
for the
Federal Circuit
87-1307
VICTORIA M. VOGE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-A ppellee.
FILED
JUN 9 1988
ORDER
A suggestion for rehearing in banc having been filed in
this case,
UPON CONSIDERATION THEREOF, it is
ORDERED that the suggestion for rehearing in banc is
declined.
FOR THE COURT:
/s/ FRANCIS X. GINDHART
FRANCIS X. GINDHART, CLERK
6/9/88
Date
cc: Mr. Eugene R. Fidell
Mr. John S. Groat, DOJ
3a
APPENDIX B
Note: This Order has not been prepared for pub-
lication in a printed volume because it does not
add significantly to the body of law and is not
of widespread legal interest. It is a public record.
It is not citable as precedent.
United States Court of Appeals
for the
Federal Circuit
87-1307
VICTORIA M. VOGE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-A ppellee.
FILED
MAY 26 1988
Before MARKEY, Chief Judge, RICH and MAYER, Cir-
cuit Judges.
ORDER
A petition for rehearing having been filed in this case,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for rehearing be, and the
same hereby is, denied.
The suggestion for rehearing in banc is under consid-
eration.
FOR THE COURT:
/s/ FRANCIS X. GINDHART
FRANCIS X. GINDHART, CLERK
4a
5/26/88
Date
cc: Mr. Eugene R. Fidell
Mr. John S. Groat, DOJ
5a
APPENDIX C
United States Court of Appeals
for the
Federal Circuit
87-1307
VICTORIA M. VOGE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-A ppellee.
DECIDED: April 19, 1988
Before MARKEY, Chief Judge, RICH and MAYER, Cir-
cuit Judges.
MAYER, Circuit Judge.
OPINION
This is an appeal from an order of the United States
Claims Court, 11 Cl. Ct. 510 (1987), that awarded Com-
mander Victoria M. Voge $30,000 in Additional Special
Pay (ASP) but found no error in the preparation or content
of Voge’s military service records. We affirm the award
of ASP, but vacate that portion of the order purporting
to review Voge’s service records.
Background
Voge, a medical doctor, was assigned to the Naval Re-
gional Medical Center (NRMC) on Guam in 1981. Upon
arrival, she was granted temporary clinical privileges as
6a
a flight surgeon. Clinical privileges typically “reflect a
health care provider’s qualifications for staff membership
and define ... the procedures the practitioner may per-
form.” Soon after her arrival, Voge’s superiors began to
express doubts about her medical competency. In 1982,
her temporary clinical privileges were revoked and her
application for permanent privileges was denied. Three ad-
verse Officer Fitness Reports (OFR), covering periods be-
tween October 31, 1981 and March 31, 1983, referred to
the revocation and ultimate denial of Voge’s application
for clinical privileges.
Also in 1982, Voge requested ASP, a form of remu-
neration that a medical officer normally receives after ex-
ecuting an agreement to remain on active duty for at least
one year. See 37 U.S.C. § 302(cX1). Because her clinical
privileges had been revoked and she had received an ad-
verse OFR for the period ending June 16, 1982, however,
Voge’s commanding officer recommended that her request
for ASP for the year ending June 30, 1983 be denied. A
Medical Corps Officer Review Board approved, and rec-
ommended that she also be denied ASP for two additional
years. Accordingly, Voge was denied ASP from July 1,
1982 until June 30, 1985. In addition, she was passed over
for promotion to captain in 1986.
Voge sought relief from the Board for the Correction
of Naval Records (BCNR). See 10 U.S.C. § 1552. The Board
recommended correction of portions of two adverse fitness
reports but “concluded that the OFR’s were otherwise not
‘substantially erroneous or unfair’ and that [Voge’s] selec-
tion for promotion would have been ‘unlikely’ even with
the corrections to her records.” This was approved by the
Secretary of the Navy. She then filed suit in the Claims
Court seeking ASP from July 15, 1982 through June 15,
1985; review of evaluations made and decisions taken by
military medical boards, committees and officers about her
competence as a medical officer and correction of alleged
errors in her OFR’s and other records resulting from those
Ta
activities; and an order requiring the Secretary of the
Navy to consider her for retroactive promotion to the rank
of captain with back pay and other benefits.
Because of apparent procedural errors in the action
taken to deny ASP, the government conceded that Voge
was entitled to the full amount of ASP she sought. Spe-
cifically, the government conceded that for ‘the period
July 15, 1982, through June 30, 1983 ... a review board
considered adverse information outside the scope of the
information the board was to consider pursuant to the
applicable regulation.”” Moreover, it acknowledged that for
“the period July 1, 1983, through June 30, 1985, the cog-
nizant official never made a discretionary determination to
deny Voge ASP for that period, as is required by regu-
lation.”
Notwithstanding Voge’s acknowledged entitlement to
ASP, the government argued that the Claims Court had
no jurisdiction to grant collateral relief by correcting
Voge’s military service records. In the government’s view,
the court could not “intrude into the [military’s] discre-
tionary matrix by examining the records that the review
board considered.”’
The Claims Court considered the case on cross-motions
for summary judgment. It ordered that the Navy pay Voge
$30,000, an amount representing the ASP she had been
denied and the Navy conceded she was due. It held, more-
over, that it had jurisdiction to review Voge’s service rec-
ords pursuant to its review of the denial of ASP. However,
the court found no error in the “preparation or content”
of the OFR’s that the BCNR refused to void, and said
that Voge had no right to reconsideration of her nonse-
lection for promotion to captain. Accordingly, the court
denied any further relief.
On this appeal, Voge argues that the Claims Court has
broad authority to review the ASP denial decision for both
substantive and procedural error and erred in refusing to
8a
order a variety of corrections to her personnel records,
including the removal of adverse OFR’s and the deletion
of any reference to the revocation of her clinical privileges.
She further asserts that the court erred in refusing to
order that she be considered for retroactive promotion to
captain. The government responds that the court had no
jurisdiction to review the ASP denial decision beyond as-
suring the Navy had complied with its regulations in the
process.
Discussion
The dispute centers on the scope of the Claims Court’s
ability to review a decision by the military to deny ASP
to a medical officer. In particular, the question is whether
the court may review the merits of an ASP denial or
whether its authority extends only to procedural violations.
There is no dispute that the Claims Court had jurisdic-
tion under the Tucker Act, 28 U.S.C. § 1491(a\X1), to en-
tertain this suit because the ASP statute, 37 U.S.C. § 302,
requires the payment of money to military medical officers.
If a statute mandates payment by the government, the
Tucker Act authorizes suit in the Claims Court. See, e.g.,
Skinner v. United States, 594 F.2d 824, 831 (Ct. Cl. 1979).
The argument is over the extent of the jurisdiction, Voge
arguing that it extends to both procedural and substantive
review of the ASP denial, the government that it stops
once the procedural aspects have been examined.
I.
Starting with the area of common agreement, we concur
that the Claims Court may review the ASP denial process
for compliance with established procedures. In pertinent
part, 37 U.S.C. § 302(cX2) says, “Under regulations pre-
scribed by the Secretary of Defense ..., the Secretary of
the military department concerned may terminate at any
time an officer’s entitlement to [ASP].”’ It has long been
9a
established that government officials must follow their own
regulations, even if they were not compelled to have them
at all, and certainly if directed to promulgate them by
Congress, as in this case. See Service v. Dulles, 354 U.S.
363, 388 (1957). Here, the Secretary of the Navy pre-
scribed procedural regulations to be followed when ter-
minating ASP. See Cl. Ct. at 513. Because they apparently
were violated, the Navy conceded that Voge was entitled
to the full amount of ASP she had been denied. Absent
this concession, the procedural regularity of the termina-
tion would have been fully reviewable in the Claims Court.
Il.
The next question, the heart of this dispute, is whether
the court may review the substantive merits of the decision
to terminate ASP. Judicial deference must be “‘at its apo-
gee” in matters pertaining to the military and national
defense. Rostker v. Goldberg, 453 U.S. 57, 70 (1981); see
also Orloff v. Willoughby, 345 U.S. 83, 93 (1953) (‘judges
are not given the task of running the Army’’). Accordingly,
“unless Congress specifically has provided otherwise, courts
traditionally have been reluctant to intrude upon the au-
thority of the Executive in military and national security
affairs.” Department of Navy v. Egan, 108 S. Ct. 818, 825
(1988).
In this case Congress statutorily entrusted the decision
whether or not to terminate a medical officer’s entitlement
to ASP to the discretion of the military. Section 302 is
clear and emphatic. It is even supported by the legislative
history cited to us in an unnecessary effort to bolster the
language of the statute. That section was “‘intend[ed] ...
to provide authority for termination of those special pays
[including ASP] ... similar to the authority provided by
(37 U.S.C. § 313(b)].” H.R. Rep. No. 96-904, 96th Cong.,
2d Sess. 9, reprinted in 1980 U.S. Code Cong. & Admin.
News 1722, 1730. Under 37 U.S.C. § 313 (1976) (repealed
by Pub. L. No. 96-513, Title IV, § 414(a), 94 Stat. 2906
10a
(1980)), the payment of special pay was a matter left to
the judgment of the Secretary who “could at any time
terminate an officer’s entitlement” to it. See Adair v.
United States, 648 F.2d 1318, 1322 (Ct. Cl. 1981).
The government proposes that judicial review is there-
fore foreclosed because of an absence of jurisdiction, as
indeed it was in Adair with variable incentive pay (VIP),
a form of special compensation to medical personnel sim-
ilar to ASP. But here we have a statute which all agree
mandates payment of ASP until discretion is exercised to
deny or terminate it. Adair addressed a statute that did
not require payment until a discretionary decision was
taken to pay the VIP; it was not a money-mandating stat-
ute. See also Pardo v. United States, 648 F.2d 1330, 1333
(Ct. Cl. 1981). What we face is a jurisprudential question:
Can the Claims Court review the military’s exercise of
discretion when it has jurisdiction under the Tucker Act
because of the mandatory monetary feature of the statute?
We think not. It presents a nonjusticiable question.
A controversy is “justiciable” only if it is “one which
the courts can finally and effectively decide, under tests
and standards which they can soundly administer within
their special field of competence.” Greene v. McElroy, 254
F.2d 944, 953 (D.C. Cir. 1958), rev’d on other grounds,
360 U.S. 474 (1959); see also Egan v. Dep’t of Navy, 802
F.2d 1563, 1581 (Fed. Cir. 1986) (Markey, C.J., dissenting),
rev'd, 108 S. Ct. 818 (1988). Here there are no tests or
standards for the court to apply in determining whether
the decision to terminate ASP is correct. Cf. American
Fed’n of Gov’t Employees, Local 2017 v. Brown, 680 F.2d
722, 726 (11th Cir. 1982) (decision to contract out military
services unreviewable where there were no guidelines
against which the agency decision could be measured). In-
stead, Congress provided only that the determination to
deny ASP may be made “at any time” by the Secretary.
lla
“The complex, subtle, and professional decisions as to
the composition, training, equipping, and control of a mil-
which are periodically subject to electoral accountability.”
Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Here the “ul-
timate responsibility” for making the determination
whether to terminate ASP was explicitly vested by Con-
gress in the military. Courts do not have the institutional
competence to make the substantive determination that a
particular medical officer is deserving of additional com-
pensation. Cf. Garbacz v. United States, 656 F.2d 628, 636
(Ct. Cl. 1981) (Court of Claims had no authority to review
the decision by the Administrator of NASA to give
decision was “wholly within [the] agency’s discretion”’). As
the record shows, many military and medical factors went
into the decision to deny Voge ASP, and it would be
singularly inappropriate to second-guess the judgment of
the military medical officers involved. Cf. Maier v. Orr,
754 F.2d 973, 984 (Fed. Cir. 1985).
This is like thousands of other routine personnel deci-
sions regularly made by the services which are variously
held nonjusticiable or beyond the competence or the ju-
risdiction of courts to wrestle with. See, ¢.g., Gilligan, 413
ulation imposing mandatory age restrictions for commis-
sioned officers is nonjusticiable); Perkins v. Rumsfeld, 577
Cir. 1976) (decision whether “‘to prefer charges under the
Uniform Code of Military Justice” not subject to judicial
review); Turner v. Egan, 358 F. Supp. 560, 563 (D. Alaska),
affd mem., 414 U.S. 1105 (1973) (no review of forced
retirement of officers after specified number of years of
military service).' Although the Claims Court had the au-
thority to enter judgment for the amount of ASP that was
concededly due because of procedural defects, that is as
far as it could go.
III.
Voge counters, however, that even if the Claims Court’s
i type
is extensively addressed in cases like Sanders v. United
F.2d 804, 814 (Ct. Cl. 1979), Yee v. United States, 512 F
975), and Clackum v. United States, 296 F.2d 226,
* Koster v. United States, 685 F.2d 407, 412 (Ct. Cl. 1982), held that
13a
ASP. She relies on 28 U.S.C. § 1491(a), which in pertinent
part provides:
(1) The United States Claims Court shall have
jurisdiction 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 upon
any express or implied contract with the United
States, or for liquidated or unliquidated damages
in cases not sounding in tort....
(2) 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
The argument is untenable for two reasons. First, sec-
tion 1491(a) gives the Claims Court power to order the
correction of military records only “incident of and col-
lateral to” its award of a money judgment. See Silbert v.
United States, 215 Ct. Cl. 913 (1977) (no power to correct
records where claimant did not seek money judgment);
Austin v. United States, 206 Ct. Cl. 719, 723 (1975) (no
power “to grant affirmative non-monetary relief unless it
is tied and subordinate to a monetary award’). Here, re-
view of Voge’s service records cannot be justified as “‘in-
cident of and collateral to” the award of ASP because
there was no reason to consider them in deciding whether
in the ASP termination decision the military followed its
own ions. The regularity of her military records and
the actions of her superiors in evaluating her performance
as a doctor and officer is entirely unrelated to that issue.
In essence, she suggests that the fortuity of the ASP
decision is sufficient to open all of her records and the
actions of boards and officers over a period of several
l4a
years to judicial scrutiny when they would be otherwise
unreviewable in the Claims Court. See Abruzzo v. United
States, 513 F.2d 608, 611 (Ct. Cl. 1975) (court’s power to
award claimant money judgment did not give it authority
to grant equitable relief by directing “his appointment as
an active-duty reserve officer’’); see also Brown v. United
States, 3 Cl. Ct. 31, 47 (1983) (where claim for money
judgment was dismissed, Claims Court had no jurisdiction
over plaintiffs claim for correction of records and rein-
statement), aff'd, 741 F.2d 1374 (Fed. Cir. 1984); of. Car-
man v. United States, 602 F.2d 946, 949 (Ct. Cl. 1979)
(there must be a “sufficient nexus’ between the money
and the equitable claim for Claims Court to consider eq-
uitable claim).
The second reason for refusing to adopt Voge’s conten-
tion is that it would allow the Claims Court to do indirectly
what it is foreclosed from doing directly. By considering
her service records for error in their “preparatiun or con-
tent,” the Claims Court was passing on the merits of the
decision to deny ASP which was first and last for the
Navy.
We reach our conclusion notwithstanding that the naval
correction board did fully review this case on the merits.
But the board acts on behalf of the Secretary and its
activities are not inconsistent with the contemplation of
section 302 that discretion reside with the military. This
does not, however, enlarge the justiciability of its decision
in the Claims Court, just as board action on non-monetary
claims does not enlarge the jurisdiction of that court to
entertain them. See, e.g., Reale v. United States, 208 Ct.
Cl. 1010, 1013 (1976) (court does not function as “a sort
of super Correction Board’’). We vacate that portion of
the court’s order purporting to review Voge’s service rec-
ords.
15a
IV.
Lastly, we turn to Voge’s demand that her nonselection
for promotion to captain be set aside and that she be
considered for a retroactive promotion. As we have noted,
strong policy reasons compel courts “‘to allow the widest
possible latitude to the armed services in their adminis-
tration of personnel matters.” Sanders v. United States,
594 F.2d 804, 813 (Ct. Cl. 1979); see also Orloff, 345 U.S.
at 94. Accordingly, absent a statute or regulation entitling
a service member to a promotion as a matter of law, the
Claims Court has no authority to entertain this claim.
Ewanus v. United States, 225 Ct. Cl. 598 (1980); Curry
v. United States, 609 F.2d 980, 983 (Ct. Cl. 1979). This
demand was properly refused.
Conclusion
The Claims Court’s judgment in favor of Voge for
$30,000 in ASP is affirmed, but that portion of the order
purporting to review her military service records is va-
cated
AFFIRMED IN PART AND VACATED IN PART
16a
APPENDIX D
United States Court of Appeals
for the
Federal Circuit
87-1307
VICTORIA M. VOGE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-A ppellee.
Judgment
ON APPEAL from the United States Claims Court
in CASE NO(S). 244-86 C
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED IN PART AND VACATED IN PART.
ENTERED BY ORDER OF
THE COURT
DATED APR 19 1988 Francis X. Gindhart
Francis X. Gindhart, Clerk
ISSUED AS A MANDATE:
June 9, 1988
Costs: Against; Appellant
PUI ssrtnstdcsciosscats $252.32
17a
APPENDIX E
In the United States Claims Court
No. 244-86C
VICTORIA M. VOGE,
Plaintiff,
v.
THE UNITED STATES,
Defendant,
(Filed February 19, 1987)
ORDER
Plaintiff moved for reconsideration of the order entered
on January 16, 1987, and defendant responded as directed
by the court.
Defendant does not address all of the points made by
plaintiff; and, in fact, defendant sustains the result reached
by the court based on grounds that were not relied upon
in the January 16 order, specifically, the harmless error
doctrine. The court did not reach that ground because it
was of the view that the decredentializing process, while
its result may have been one of the reasons why Additional
Special Pay (““ASP’’) was denied to plaintiff, properly was
not inquired into in a review of the discretionary decision
to deny ASP.
Plaintiff's reconsideration motion addresses one subject
that warrants clarification, although not modification of
the court’s order. The court stated at page 9 of its order
that “{pjlaintiff may have been the victim of a cabal... .”
From this plaintiff argues 1) that she was the victim of
an injustice that should have been addressed by the Board
for Correction of Military Records (the ‘“‘BCMR’”) and this
18a
court and 2) that the BCMR and the court failed to ex-
amine the impact that the conspiratorial scheme had on
the accuracy of the ratings plaintiff received or the legality
of the actions taken against her.
Before issuing its order, the court reviewed plaintiff's
administrative record in its entirety and found no basis
for an injustice against plaintiff or the existence of any
conspiratorial scheme. The record revealed that one of
plaintiff's subordinates may not have liked her and re-
ported on her medical performance to plaintiff's com-
manding officer, who, in turn, made his own investigation
and authorized the subordinate and other individuals to
report on plaintiff's performance so that he could evaluate
it. Out of an abundance of caution, the court indicated
that these circumstances may have constituted a cabal.
However, the fact is that those instances that were re-
ported to the commanding officer and for which plaintiff's
medical judgment ultimately was faulted were matters
within the commanding officer’s particular medical com-
petence to evaluate, as well as that of the other medical
officers involved in the decredentializing process. Plaintiff's
rebuttals in her record do not show that the medical judg-
ments that precipitated her being decredentialized and that
also were reported in her officer fitness reports were un-
fair or invalid. Accepting plaintiff's argument would mean
that a physician could not be faulted for deficient per-
formance because one of the people reportiig incidents
concerning his performance did not like him. The court is
satisfied, based on the administrative record, that any per-
sonal animosity against plaintiff did not precipitate the
incidents reported, did not taint the reports, and did not
play a role in evaluating the incidents.
Accordingly, based on the foregoing,
IT IS ORDERED, as follows:
Plaintiff's motion for reconsideration is denied.
19a
/s/ CHRISTINE C. NETTESHEIM
Christine Cook Nettesheim
Judge
20a
APPENDIX F
United States Claims Court
No. 244-86 C
VICTORIA M. VOGE
vs.
THE UNITED STATES
At the Claims Court held in the City of Washington,
on the 20th day of January, A.D. 1987, judgment was
ordered to be entered as follows:
that plaintiff recover of and from the United
States additional service pay in the sum of
$30,000, with $6,000 to be withheld from said
amount for federal income tax purposes; and that
the complaint is dismissed in all other respects.
Costs to plaintiff.
A true copy of record.
In testimony whereof I have hereunto set my hand and
affixed the seal of said Court at Washington, this 20th
day of January, A.D. 1987
2la
APPENDIX G
United States Claims Court
Jan. 16, 1987.
No. 244-86C.
Victoria M. VOGE,
Plainttff,
v.
The UNITED STATES,
Defendant.
ORDER
NETTESHEIM, Judge.
This case is before the court after argument on
defendant’s motion for partial summary judgment and
plaintiff's cross-motion for summary judgment. Three is-
sues have been raised: 1) whether this court can review
the decision to terminate additional special pay (“ASP’’)
to which a servicemember is entitled absent its termina-
tion; 2) whether officer fitness reports (““OFR’s’’) need only
be fair and legal when they are used in connection with
promotion determinations and not ASP determinations; and
3) whether a court’s review of these OFR’s includes ex-
amining the underlying procedures for revoking temporary
medical privileges after the revocation has been reported
in an OFR.
FACTS
Plaintiff Comdr. Victoria M. Voge (‘plaintiff’) at pres-
ent and for the period of time in suit has served in the
United States Navy. Her complaint seeks ASP from July
15, 1982 through June 15, 1985, and an order purging
22a
and correcting her records and requiring that the Secre-
tary of the Navy consider her for retroactive promotion
to the rank of captain by special selection board with all
appropriate backpay, allowances, and other benefits.
Defendant’s motion for partial summary judgment asserts
that jurisdiction is lacking to consider plaintiff's claims
other than entitlement to ASP for the period July 15,
1982, to June 30, 1985, which defendant concedes in the
amount of $30,000.
The parties agree that there is no dispute with respect
to the following facts.' Plaintiff is a medical officer, who
served at Naval Regional Medical Center (‘““NRMC’’) Guam,
from October 31, 1981, through March 31, 1983. When
she arrived in Guam, plaintiff received temporary medical
privileges as a flight surgeon which, although once ex-
tended, ultimately were revoked by the NRMC command-
ing officer on July 15, 1982, following a June 17, 1982
recommendation by the NRMC Guam Credentials Review
Committee. The procedures for both extending and revok-
ing her privileges were unorthodox. The instruction allow-
ing for extension of temporary medical privileges beyond
90 days had been superseded when they were extended
for an additional 90 days. The instruction applicable at the
time did not allow for extensions. The applicable instruc-
tion also did not contemplate that the Credentials Review
Committee meet in plaintiff's absence to --asider revo-
cation, as was done on May 27, 1982, before the formal
meeting on June 17. Moreover, two individuals present at
the May 27 meeting, the Director of Clinical Services (who
was also the Chairman of the Credentials Review Com-
mittee) and the Chief of Internal Medicine, were involved
in the incidents leading to the extension of privileges. Al-
though they did not participate in the proceeding, they
1 The facts have been tailored to limit discussion of the matters that
plaintiff sought to protect from disclosure by sealing the record. See
order entered July 16, 1986.
23a
stayed in the room during the formal June 17, 1982 meet-
ing that culminated in the recommendation to revoke.
Three adverse OFR’s (October 31, 1981-June 16, 1982;
June 17, 1982-August 31, 1982; September 1, 1982-March
31, 1983) referred to the extension of plaintiff's temporary
medical privileges, the preliminary report by the Creden-
tials Review Committee that revocation of plaintiff's tem-
porary medical privileges was being considered, the
decredentializing itself, and the other consequences that
followed revocation.?
ASP is conditioned on the execution of an agreement
to remain on active duty for at least one year, 37 U.S.C.
§ 302(cX1) (1982), and plaintiff submitted such an agree-
ment. When plaintiff requested ASP for the year July 1,
1982, to June 30, 1983, her commanding officer on August
26, 1982, recommended to the Chief, Bureau of Medicine
and Surgery, that plaintiff's request be denied because her
temporary medical privileges had been revoked and be-
cause she had received an adverse OFR for the period
ending June 16, 1982. Thereafter, on August 8, 1983, a
Special Pay for Medical Corps Officer Review Board ap-
proved the commanding officer’s recommendation that
plaintiff be denied ASP for the one-year period. The board
further recommended not to allow ASP for an additional
two years. On August 12, 1983, the Director, Naval Med-
icine, approved the board’s recommendations, thereby fore-
closing plaintiff from ASP from July 1, 1982, to June 30,
1985. Plaintiff had filed complaints pursuant to 10 U.S.C.
§ 938 (1982), on August 10, 1982, and May 5, 1983, by
which she sought review of certain actions taken by her
2 See supra note 1. Failure to discuss the medical and educational
consequences to plaintiff of the decredentializing procedure does not
imply that they have been overlooked.
24a
commanding officer. She was not selected for promotion
to the rank of captain by the 1986 promotion board.
Before filing suit, plaintiff applied to the Board for the
Correction of Naval Records (the “BCNR”) requesting ex-
pungment of any reference in her records to the NRMC
Guam Credentials Review Committee proceedings, com-
ments by her superiors regarding the proceedings, and
certain medical reports; correction of her records to show
that she was granted medical privileges; removal of the
first OFR and expungment of references from the later
two OFR’s to the revocation process; ASP for the three-
year period; and consideration by a special promotion
board. On February 7, 1986, the BCNR found an injustice
warranting: (1) deletion from the October 31, 1981-June
16, 1982 OFR of language referring to prospective action,
1.¢., the preliminary report of the Credentials Review Com-
mittee to the effect that revocation was recommended; the
scheduling of plaintiff's formal appearance on June 17,
1982; and subjective remarks about the impact of the forth-
coming June 17 meeting. The BCNR also ordered removal
of the June 17, 1982-August 31, 1982 OFR, which, despite
its being adverse, had not been shown to plaintiff before
it was issued. The BCNR concluded that the OFR’s were
otherwise not “substantially erroneous or unfair’ and that
her selection for promotion would have been “unlikely’’
even with the corrections to her records. Except as noted,
relief was otherwise denied.
DISCUSSION
Jurisdiction to review OFR’s considered in terminating
ASP
ASP is awarded pursuant to 37 U.S.C. § 302, which
provides, in pertinent part.
*The BCNR did not review plaintiff's complaints under 10 U.S.C. §
938, so the court cannot consider them. See Plf's Br. filed Dec. 1, 1986,
at 15.
25a
(aX1) An officer who is an officer of the Medical
Corps of the Army or the Navy or an officer of the
Air Force designated as a medical officer and who is
on active duty under a call or order to active duty
for a period of not less than one year is entitled to
special pay in accordance with this subsection.
(cX1) An officer may not be paid additional special
pay under subsection (aX4) of this section or incentive
pay under subsection (b) of this section for any
ciel period unless the officer first executes
a written agreement under which the officer agrees
to remain on active duty for a period of not less than
one year beginning on the date the officer accepts
the ine of such special pay.
Once established, entitlement to ASP can be terminated
pursuant to 37 U.S.C. § 302(cX2), which provides in full:
(2) Under regulations prescribed by the Secretary
of Defense under section 303a(a) of this title, the Sec-
retary of the military department concerned may ter-
minate at any time an officer’s entitlement to the
special pay authorized by subsection (aX4) or oe of
this section. If such entitlement is terminated, the
officer concerned is entitled to be paid such special
pay only for the part of the period of active duty
that he served, and he may be required to refund any
amount in excess of that entitlement.
Defendant has conceded plaintiff's entitlement to ASP
for a longer period than prayed for in her complaint. Def's
Br. filed Oct. 23, 1986, at 3 & n.4. Plaintiff's entitlement
to special pay was not terminated pursuant to 37 U.S.C.
§ 302(cX2), requiring that the Secretary of the Navy ter-
minate an officer’s entitlement to ASP consistent with
regulations prescribed by the Secretary of Defense.
Defendant states that it has “failed to establish that proper
26a
procedures were followed to terminate Commander Voge’s
entitlement to ASP... .” Def’s Br. filed Oct. 23, 1986, at
3 (footnote omitted). Specifically, defendant suggests the
particular failing was that the review board considered
information beyond that prescribed in SECNAVINST
7220.75B { 7b (Sept. 23, 1983), which confines review of
the officer’s performance to the OFR’s issued as of the
date of the agreement entitling the officer to ASP: sup-
porting documents; the commanding officer’s letter; and
the officer’s rebuttal, if any. The offending information
apparently consisted of a microfiche of plaintiff's entire
record, including an OFR issued subsequent to the date
on which she became entitled to ASP. Defendant contends,
however, that this court can do no more than enter judg-
ment for the amount of ASP it has conceded based upon
the procedural error, because the decision to terminate,
assuming the proper procedures are followed, is purely
discretionary. Plaintiff argues vigorously that collateral to
entering the money judgment defendant would allow, 28
U.S.C. § 1491(aX2) (1982), empowers this court to grant
the incidental relief she seeks by way of correcting her
records and ordering that she be considered for promotion.
In German v. United States, 225 Ct. Cl. 1, 633 F.2d
1369 (1980), the United States Court of Claims took ju-
risdiction over a claim for termination of variable incentive
pay (“VIP”) after plaintiff had qualified to receive it. The
court examined the termination process, holding that the
Navy improperly considered deterioration in the officer’s
performance before he signed the VIP agreement. In doing
so, the court construed the language of the regulation
governing the Secretary of Defense’s authority to termi-
nate “ ‘upon a determination that the officer’s perform-
ance has deteriorated to a level at which no premium
should be placed upon his continued service.’ ” 225 Ct. Cl.
at 5, 633 F.2d at 1371; of Adair v. United States, 227
Ct. Cl. 345, 648 F.2d 1318 (1981) (statute authorizing VIP
for public health officers did not provide for a right to
27a
pay; statute construed as discretionary mechanism), fol-
lowed in Pardo v. United States, 227 Ct. Cl. 377, 648 F.2d
1330 (1981) (no monetary entitlement to VIP in action
brought by Army Medical Corps officer). Defendant asserts
that VIP and ASP are different in that terminating ASP
is purely discretionary, as shown by the legislative history
to the predecessor statute providing for ASP. Yet the
decision to terminate VIP is also discretionary. The Court
of Claims in German did not review whether the officer’s
performance had deteriorated, but ruled only that records
the board reviewed should not have been considered.
Defendant argues that the court would go beyond Ger-
man and intrude into the discretionary matrix by exam-
ining the records that the review board considered,
specifically the OFR’s, to determine their legality. How-
ever, the review defendant seeks to inhibit is the same
review for procedural error made in German and in cases
where allegedly defective records are considered by pro-
motion boards. Unlike cases involving discharge following
denial of promotion, defendant contends that the record
considered in an ASP termination proceeding need not
present plaintiff's service career on a fair and equitable
basis. Sanders v. United States, 219 Ct. Cl. 285, 302, 594
F.2d 804, 814 (1979). According to defendant, this fairness
guarantee, and the statutes from which the right is de-
rived, 10 U.S.C. §§ 615, 617 (1982 & Supp. 1986), apply
only to the officer’s record when before a promotion board.
The result of defendant’s argument is that plaintiff could
not challenge the legality of her record until discharged.
Thus, according to defendant, plaintiff could be denied
ASP based on allegedly illegal information in her OFR’s
as long as the proper termination procedures were fol-
lowed, but she could not be denied pay following a dis-
charge for nonpromotion based on the same information
in her OFR’s.
This court can order an illegal OFR expunged, as long
as the cause of action is based on a statute mandating
28a
the payment of money. Sanders, 219 Ct. Cl. at 314, 594
F.2d at 820; see Testan v. United States, 424 U.S. 392
(1976); United States v. King, 395 U.S. 1, 96 S.Ct. 948,
47 L.Ed.2d 114 (1969); cf United States v. Wickersham,
201 U.S. 390, 26 S.Ct. 469, 50 L.Ed. 798 (1906) (com-
pensation to which plaintiff entitled by law as federal em-
ployee due during wrongful suspension gives right of
action). By exercising its power, the court does not make
promotion determinations. The United States Claims Court,
like its predecessor, has no authority to order a promotion
absent a statute or regulation mandating promotion or
entitling plaintiff to promotion as a matter of law. £.g.,
Schuenemeyer v. United States, 4 Cl. Ct. 649, 652 (1984)
(citing cases); Alford v. United States, 3 Cl. Ct. 229, 231
(1983) (citing cases). The Supreme Court established in
Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534,
539-40, 97 L.Ed. 842 (1953), that a court cannot order an
officer of the military to be commissioned or to define
duties. Therefore, it is concluc_d that the court can review
OFR’s in an action challenging the termination of ASP,
which derives from a money-mandating statute.
Defendant’s argument also must be rejected as imprac-
tical. If a servicemember is entitled to a legally constituted
record for promotion, a fortiori the record should be cor-
rected as soon as possible. Defendant does not hesitate to
trot out the affirmative defense of laches in military pay
cases on the ground that the military is prejudiced by delay
in contesting OFR’s. Plaintiff here only takes occasion to
ask that her record be in compliance with the law. If an
allegedly illegal record can be used for other purposes,
such as an ASP termination proceeding, and a plaintiff is
legitimately in court on the basis of a money-mandating
statute, so much the better that the contested OFR’s be
reviewed in a more timely manner.
29a
Review of the procedures in the decredentializing action.
A decision of the BCNR is on review. Plaintiff must
show that the decision was arbitrary, capricious, unsup-
ported by substantial evidence, or contrary to law. E.g.,
Alberico v. United States, 783 F.2d 1024, 1029
(Fed.Cir.1986) (citing cases). The BCNR concluded, inter
alia, that some of the procedures antecedent to decreden-
tializing were not defective and the ones that were con-
trary to applicable procedures did not harm her. Plaintiff
contends that the procedural errors—the irregularities
noted by the BCNR and others the board refused to find
in error—infect the revocation of her temporary medical
privileges and everything that flowed from it, including
references to the underlying events in her OFR’s, which
contributed to her later failure to be selected for promo-
tion.
The court declines to disturb the BCNR’s decision be-
cause the procedures whereby plaintiff's temporary med-
ical privileges were revoked, even if procedurely defective,
do not amount to error in the preparation or composition
of her record. The type of error in plaintiff's OFR’s that
is cognizable and can be remedied by judicial review is
error in their preparation or composition. In Hary v. United
States, 228 Ct. Cl. 10. 17-18, 618 F.2d 704, 708 (1980),
involving an officer effectiveness report (“OER”) which is
the equivalent of an OFR, the Court of Claims stated:
[P]laintiffs must do more, to invoke court interven-
tion, than merely allege or prove that an OER seems
inaccurate, incomplete, or subjective in some sense.
The showing is not enough where an allegation, even
if proved, fails to establish the presence of “factors
adversely affecting the ratings which had no business
being in the rating process,” id., or where there is
no clear violation of a specific objective requirement
of statute or regulation, or where there is no mis-
statement of a significant hard fact. Nor is it enough
to impel us to act that the rater may now say that
he scored the claimant too low. In Tanaka v. United
30a
States, 210 Ct. Cl. 712 [5388 F.2d 348] (1976), cert.
denied, 430 U.S. 955 [97 S.Ct. 1599, 51 L.Ed.2d 804]
(1977), we held that rater’s statement that his opinion
had changed and that he would now rate plaintiff
higher, absent any misstatements or fact in the OER,
did not tender a triable issue on the accuracy of an
OER. In Savio v. United States, 213 Ct. Cl. 737 [553
F.2d 105] (1977), the plaintiff supported a challenge
to the accuracy of an OER with a statement by the
rater that the rating was not consistent with the ra-
ter’s high regard for the plaintiff, blaming this on his
slight personal attention to the plaintiff's performance
of duties, words of caution he had received from his
superiors on inflating numerical ratings in OERs, and
his failure to include pertinent information in the re-
port. Again, there were no allegations of misstate-
ments of hard fact in the original rating, and we
refused to order the removal of the challenged OER.
See also Borgford v. United States, supra [221 Ct. Cl.
920, 618 F.2d 124]. In Stewart v. United States, 222
Ct. Cl. 42, 611 F.2d 1356 (1979), we held that
plaintiff's allegation that OERs were inaccurate be-
cause his rater’s intentionally downgraded his ratings
in order that he would show job progression was an
insufficient ground for our voiding the OERs. Jd. at
45, 611 F.2d at 1358. See also Reid v. United States,
supra [221 Ct. Cl. 864, 618 F.2d 123]; Wilson ».
United States, supra [221 Ct. Cl. 852, 618 F.2d 123].
Henderson v. United States, 175 Ct. Cl. 690 (1966) (per
curiam), cert. denied, 386 U.S. 1016, 87 S.Ct. 1373, 18
L.Ed.2d 455 (1967), does not require a different result.
There the Court of Claims held that the procedures for
judging a pilot unqualified for further training were de-
fective. The case is distinguishable because the decision
reviewed precipitated his discharge, i.e., absent qualifica-
tion, he could not longer serve in the military. Henderson
did not deal with OFR’s.
3la
Plaintiff asks for a two-tiered analysis: judicial review
of how the OFR’s were prepared and judicial review of
the legality of the procedures undertaken in the decre-
dentializing process.‘ This the court will not do, for the
door thereby would be opened to judicial review of every
procedure whereby a servicemember is deemed fit or qual-
ified for some matter that is reported in an OFR. Un-
questionably, the decision to revoke temporary medical
privileges is not judicially reviewable in this court because
it is not based on a money-mandating statute. Even if the
decision to terminate ASP was based on the results of the
decredentializing procedure, the court will not overturn the
decision to terminate ASP unless 1) the procedures for
making the decision to terminate ASP were themselves
defective, which defendant has admitted, or unless 2) the
OFR’s considered in the ASP determination were defec-
tive, and the BCNR ordered one OFR removed for im-
proper preparation. The- implications of expanding the
court’s inquiry to reviewing military procedures that un-
derlie all aspects of a servicemember’s career reported in
OFR’s are awesome. Prudence dictates that judicial review
be limited to the preparation and content of the OFR’s
themselves. In this case there was a violation of procedures
in terminating ASP, but no violation of procedures in pre-
paring the two OFR’s that the BCNR refused to void.
Assuming that this court could find an OFR defective
insofar as it referred to a defective decredentializing pro-
cedure, the OFR for October 31, 1981-June 16, 1982, would
‘ After the BCNR removed from the first OFR (October 31, 1981-
June 16, 1982) references to the decredentializing procedures and re-
moved the second OFR (June 17, 1982-August 31, 1982) from plaintiff's
record, the only mention to the revocation are a reference to the ex-
tension of her temporary medical privileges in the first OFR and com-
ments in the third (September 1, 1982-March 31, 1983) on education
required after the revocation. The BCNR properly may remove from
OFR’s whatever it deems appropriate. The court is constrained not to
go as far.
32a
remain substantially as the BCNR left it.5 Plaintiff assumes
that, because all comments in her OFR’s relating to the
decredentializing procedure could be removed if the court
found the decredentializing procedure materially defective,
all related negative comments would be removed and that
her grades would change. This is not so. The events pre-
cipitating revocation of plaintiff's temporary medical priv-
ileges were the same events that plaintiff's commanding
officer commented on in this OFR as indicating deficient
performance. Consequently, even if the court were to find
that the procedures for revoking plaintiff's temporary med-
ical privileges were error, and not harmiess error, and
ordered the remaining references to plaintiff's temporary
medical privileges in this OFR purged, the separate, but
parallel, narrative comments and grades relating to the
same conduct would remain. The material that the BCNR
did not expunge from the October 31, 1981-June 16, 1982
OFR consists, principally of opinions of her superior, who
was also a medical officer, concerning plaintiff's medical
judgment. The events forming the complaint in this case
were instances in which her medical judgment was ques-
tioned. Plaintiff may have been the victim of a cabal. Cer-
tainly her first commanding officer in Guam can be
criticized for allowing individuals to complain to him out
of the chain of command. The commanding officer none-
theless could, and did, make negative comments based on
his observation of plaintiff.
The other OFR that the BCNR declined to remove (Sep-
tember 1, 1982-March 3, 1983) contains fairly neutral com-
ments on plaintiffs performance and references to the
events that followed revocation of her temporary medical
privileges. Again, even if the latter comments were to be
excised, the former are proper, within the discretion of
her commanding officer to make, and would remain.
5 See supra note 4.
33a
The problem with plaintiff's case is that it turns on
judgments by doctors of plaintiff's medical ability. The
administrative record contains numerous rebuttals by
plaintiff to comments that her professional skills or judg-
ment were found wanting. The BCNR was justified fully
in deferring to the judgments of plaintiffs superiors on
matters of medical judgment, especially since her rebuttals
are themselves opinions as to why her skills or judgment
were not flawed in each instance—matters on which su-
periors and their subordinates often vary. The court will
not second guess the medical judgments of plaintiffs su-
periors. See Braddock v. United States, 9 Cl. Ct. 463, 474
(1986). The BCNR’s decision was not arbitrary, capricious,
or unreasonable based on the record before the BCNR and
this court.
CONCLUSION
Based on the foregoing, defendant’s motion for partial
summary judgment is granted and plaintiff's cross-motion
for summary judgment is denied, except insofar as plaintiff
is entitled to ASP. Accordingly,
IT IS ORDERED, as follows:
1. The Clerk of the Court shall enter iudgment for
plaintiff in the amount of $30,000, with instructions to
withhold $6,000 for federal income tax purposes. The com-
plaint is to be dismissed in all other respects.
2. The protective order shall be lifted 5 days after ex-
piration of the time for appeal unless an appeal is filed
in which case the protective order shall remain in effect
until further order of the court.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.