Albino v. United States
104 Fed. Cl. 801
| Fed. Cl. | 2012Background
- Plaintiff is a Captain in the Army Reserve JAG Corps challenging the ABCMR denial to remove an unfavorable OER from his record.
- The OER covering Dec 1, 2003–Jun 22, 2004 rated him unsatisfactory and recommended not to promote; OSRB corrected some administrative errors.
- ABCMR denied relief, finding no probable error or injustice; later a DA Form 5500-R created an inconsistency about height/weight, which ABCMR corrected without affecting the contested OER.
- Plaintiff sought monetary relief under the Military Pay Act for back pay at Major rank and various forms of equitable relief including promotion reconsideration; defendant moved to dismiss under RCFC 12(b)(1)/(b)(6).
- The court remanded, later determined lack of jurisdiction over back pay and promotion claims, and eventually transferred the promotion-related portion to the District of Columbia under 28 U.S.C. § 1631; no costs awarded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction over back pay under the Military Pay Act | Plaintiff asserts MPA money-mandates relief for pay differences | Back pay premised on a rank never attained and not involuntary separation does not qualify | Court lacks jurisdiction over back pay claim |
| Whether the back pay claim is ripe under MPA | Back pay accrues when denied promotion | Claim untimely or not ripe since no involuntary separation occurred | Back pay claim not ripe; dismissal without prejudice |
| Whether the promotion claim falls within Tucker Act equitable relief without a monetary claim | Promotion relief under Dysart based on MPA entitlement | No monetary claim; equitable relief not available absent money-mandating claim | Court lacks jurisdiction over promotion claim for lack of monetary relief |
| Whether transfer under 28 U.S.C. § 1631 is appropriate for the promotion claim | District Court APA review available; transfer warranted | APA review not available if no monetary relief; transfer may be appropriate | |
| Whether APA claims are within court's jurisdiction | Claims include APA review of ABCMR decision | APA jurisdiction waived for nonmonetary relief in this context | Court lacks APA jurisdiction for promotion claim |
Key Cases Cited
- Fisher v. United States, 402 F.3d 1167 (Fed. Cir. 2005) (money-mandating status of statutes; jurisdiction hinges on money-mandating source)
- Jan's Helicopter Serv., Inc. v. FAA, 525 F.3d 1299 (Fed. Cir. 2008) (one-step jurisdictional test for money-mandating claims; class eligibility matters)
- Smith v. Sec'y of the Army, 384 F.3d 1288 (Fed. Cir. 2004) (MPA generally does not award pay for increased rank not attained)
- Reilly v. United States, 93 Fed.Cl. 643 (Fed. Cir. 2010) (MPA applies to involuntary separation; APA review available where appropriate)
- Dysart v. United States, 369 F.3d 1303 (Fed. Cir. 2004) (Dysart recognizes promotion review when proper money-mandating claim exists)
- Testan v. United States, 424 U.S. 392 (1986) (established rule: entitlement to position only after appointment; exceptions limited)
- Knightly v. United States, 227 Ct.Cl. 767 (Ct.Cl. 1981) (back pay not recoverable for promotion not received)
- Martinez v. United States, 333 F.3d 1295 (Fed. Cir. 2003) (military pay act accrual and jurisdictional principles)