Case Information
*1 Bеfore WILKINSON, Chief Judge, ERVIN, Circuit Judge, and CHAPMAN, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Chapman wrote the opinion, in which Chief Judge Wilkinson and Judge Ervin concurred. *2 COUNSEL
ARGUED: Clifford Leon Lee, II, THE LEE LAW FIRM, P.A., Fay- etteville, North Carolina, for Appellant. Bruce Charles Johnson, Assistant United States Attorney, Raleigh, North Carolina, for Appel- lee. ON BRIEF: Janice McKenzie Cole, United States Attorney, Eileen C. Moore, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. OPINION
CHAPMAN, Senior Circuit Judge: Plaintiff-Appellant, Willie C. Randall, a Major in the United States Army, filed this action after he was denied promotion to the rank of Lieutenant Colonel. Plaintiff alleges that his nonselectiоn was the result of racial discrimination, that he was denied due process, and that the Army failed to follow its own regulations in reviewing his request for correction of his military records. The district court granted Defendants' motion to dismiss or, in the alternative, for sum- mary judgment, and Plaintiff appealed. For the reasons that follow, we affirm. I.
Plaintiff is a United States Army Major in the Quartermaster Corps and is currently stationed at Fort Bragg, North Carolina. He was origi- nally commissioned in the Army Reserve on May 9, 1976, after com- pleting the Reserve Officer Training Corp (ROTC) Program and graduating from college. He was promoted to First Lieutenant on August 29, 1978, and to Captain on Sеptember 15, 1980. He received an appointment to the regular Army from the President and was con- firmed by the Senate on November 10, 1982. On January 1, 1988, he was promoted to the rank of Major. By all accounts, Plaintiff has had a distinguished military career. He has continued his formal education while in the Army, has received several military awards, and served with distinction in Saudi Arabia during Operations Desert Shield and Desert Storm. *3 Plaintiff anticipated being promoted in due course to the rank of Lieutenant Colonel. On May 16, 1991, however, he received a letter from Lieutenant Colonel James M. Colvin, Chief of the Quartermas- ter Branch of the United States Army, indicаting that Plaintiff's 1990 Officer Evaluation Report ("OER") might present a problem for his continued promotion. LTC Colvin stated that the rating for potential in Plaintiff's 1990 OER "is below average compared to [his] contem- poraries" and that "a continuation in this direction may have a serious impact on [his] potential for promotion." S.A. at 289. In response to LTC Colvin's letter, Plaintiff visited the Quarter- master Branch on July 31, 1991 to review his military records to determine the source of the unfavorable material referred to by LTC Colvin. When Plaintiff reviewed his records, he discovered that his OER for the period from January 1, 1990 to December 31, 1990 con- tained an unfavorable rаting of his potential. 1 Plaintiff also discovered two additional OERs that reflected similar unfavorable ratings of his potential. Those OERs rated Plaintiff from May 5, 1982 to May 9, 1983 (OER #1) and from May 10, 1983 to November 16, 1983 (OER #2). Plaintiff believed that all three OERs contained inaccurate ratings of his potential because the ratings were arguably inconsistent with the written comments contained in another part of the OER. 2 1 Part VII(a) of the OER contains nine vertical blocks on which the senior rater assesses the ratee's potential by placing a mark in one of the blocks. AR 623-105, ¶ 4-16(d)(1) (Mar. 31, 1992), S.A. at 358. On Plain- tiff's 1990 OER, the third block is marked with an"X." J.A. at 129. Although this selection is in the top third of the nine possible blocks, it reflects an unfavorable rating when compared with the senior rater's pro- file, which measures how that particular officer rated the other individu- als he is responsible for rating. See AR 623-105, ¶ 4-167(d)(5), S.A. at 358. Plaintiff's three-block rating is below center of mass, or below aver- age, on the senior rater's profile, because, of the nineteen officers rated by that particular senior rater, twelve received a two-block rating for potential, six (including Plaintiff) received a three-block rating, and one received a four-block rating. J.A. at 129. Part VII(b) of the OER contains a space for the senior rater to provide written comments abоut the ratee. That portion of the OER can include either an explanation of the potential evaluation in Part VII(a), or it can be an assessment of the ratee's actual performance. AR 623-105, ¶ 4- 16(d)(2), S.A. at 358. *4 On November 27, 1991, Plaintiff filed an appeal of his 1990 OER to the Officers Special Review Board ("OSRB"). He sought to upgrade his potential rating or to expunge that portion of the OER from his records altogether. In addition, on December 12, 1991, Plain- tiff appealed OERs #1 and 2 to the OSRB. He sought the same relief for OERs #1 and 2 that he sought for his 1990 OER, and he requested that the OSRB waive the time limitation in 10 U.S.C.§ 1552(b) 3 for the earlier OERs.
In support of his appeal of OERs #1 and 2, Plaintiff submitted to the OSRB suрporting statements from several of his superior officers and some newspaper clippings highlighting his accomplishments. The OSRB did not deem it necessary to contact the senior rater who com- pleted the OERs in question. Although the OSRB waived the statute of limitations as to OERs # 1 and 2, it nevertheless denied Plaintiff's appeal. According to the OSRB, Plaintiff "failed to provide clear and convincing evidence that supports his contention that the contested OERs are inaccurate." S.A. at 130.
The OSRB reached essentially the same conclusion with respect to
Plaintiff's 1990 OER. In support of that appeal, Plaintiff again sub-
mitted favorable tеstimonials from several of his contemporaries and
superior officers, as well as a certificate and citation for the award of
the Bronze Star Medal he received from his service in the Gulf War
Section 1552(b) of Title 10 of the United States Code provides that
a claimant may seek to correct his military records"within three years
after he discovers the error or injustice." 10 U.S.C. § 1552(b). That sec-
tion further provides that a Board for the Correction of Military Records
"may excuse a failure to file within three years after discovery if it finds
it to be in the interest of justice." Id. Although this court need not address
the applicability of this limitations period to this case, there is some
debate about whether this statute of limitation is tolled during a service
member's period of active service by the Soldiers' and Sailors' Civil
Relief Act of 1940 ("SSCRA"), 50 U.S.C. § 525. Compare Detweiler v.
Pena,
during the rated period. The OSRB conducted a thorough investiga- tion and interviewed the rating officials who completed Plaintiff's 1990 OER. The intermediate rater indicated that she had problems getting Plaintiff to follow her directions and that Plaintiff seemed to think he knew the best way to get things done. In addition, the senior rater stated that Plaintiff was "like a loose cannon on deck." S.A. at 144. The OSRB concluded that Plaintiff "failed to provide clear and convincing evidence that supports his contention that the contested OER is inaccurate and unjust and does not adequately reflect his per- formance or potential." S.A.at 146. Accordingly, the OSRB denied Plaintiff's appeal. Plaintiff was denied promotion to Lieutenant Colonel on August 6, 1992. Thereafter, he appealed the decision of the OSRB as to all three of his OERs tо the Army Board for the Correction of Military Records ("ABCMR"). He requested that all three OERs be upgraded to reflect a center of mass rating for potential or, in the alternative, that the potential evaluation be deleted entirely from each report. In addition, he requested that his records be corrected to reflect that he was selected for promotion to the rank of Lieutenant Colonel by the 1990 promotion selection board. On March 17, 1993, the ABCMR issued two memoranda of con- sideration denying Plaintiff's requests. The ABCMR determined that Plaintiff's appeal of OERs #1 and 2 was not timely. Also, the ABCMR stated that Plaintiff "has not presеnted and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law." S.A. at 127. As to the 1990 OER, the ABCMR similarly determined that Plaintiff"has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice." S.A. at 141. After Plaintiff exhausted his administrative appeals, he filed the instant action in the United States District Court for the Eastern Dis- trict of North Carolina on November 14, 1994. He alleges three causes of action in his complaint: (1) employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. *6 § 2000e-16; (2) violation of the Due Process Clause of the Fifth Amendment to the United States Constitution; and (3) the Army's failure to follow its own regulations in reviewing his request for cor- rection of military records. Plaintiff seeks to have the district court order that the adverse ratings in the three challenged OERs be upgraded or removed from his records; that he be retroactively pro- moted to Lieutenant Colonel with back pay; and that he be allowed to attend advanced military schools and be guaranteed an opportunity to compete for the rank of Colonel. On January 30, 1995, Defendants filed a motion to dismiss or, in the alternative, for summary judgment. The district court granted Defendants' motion on July 3, 1995. The district court dismissed Plaintiff's Title VII claim under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, ruling that Title VII does not apply to uni- formed members of the military. The district court also dismissed Plaintiff's constitutional claim under Fed. R. Civ. P. 12(b)(6) for fail- ure to state a claim upon which relief can be granted. The court found, inter alia, that Plaintiff's due process claims were nonjusticiable. Finally, the court granted summary judgment for Defendants under Fed. R. Civ. P. 56 with regard to Plaintiff's claim that the Army failed to follow its own regulations in reviewing his request to correct his military records. The court found that the ABCMR's actions were not arbitrary, capricious, or unsupported by substantial evidence. Plaintiff appeals from the district court's order of July 3, 1995. We address each of Plaintiff's allegations of error below. II.
Plaintiff's first cause of action is for alleged employment discrimi- nation in violation of Title VII. Plaintiff, who is an African American, alleges that his unfavorable OERs were the result of improper racial discrimination. He contends that the district court erred in dismissing his discrimination claim.
This court reviews de novo the district court's dismissal of Plain-
tiff's Title VII claim for lack of subject matter jurisdiction. Ahmed v.
United States,
This court agrees that Congress intended to include only civilian employees of the military departments, and not uniformed service members, within the reach of Title VII. Therefore, the district court Section 102 of Title 5 of the United States Code, which is specifically referenced in 42 U.S.C. § 2000e-16, provides that "[t]he military depart- ments are: The Department of the Army[;] The Department of the Navy[; and] The Department of the Air Force." 5 U.S.C. § 102. Section 101(a)(8) of Title 10 of the United States Code contains virtually the identical definition of the term "military departments." See 10 U.S.C. § 101(a)(8). Significantly, however, 10 U.S.C.§ 101 contains a separate definition of the term "armed forces," which is defined to mean "the Army, Navy, Air Force, Marine Corps, and Coast Guard." 10 U.S.C. § 101(a)(4). *8 was correct in dismissing this count of Plаintiff's complaint under Fed. R. Civ. P. 12(b)(1) for want of subject matter jurisdiction. III.
Plaintiff's second cause of action is for violation of his Fifth
Amendment right to due process. The district court dismissed this
cause of action under Fed. R. Civ. P. 12(b)(6), ruling that the allega-
tions presented a nonjusticiable issue.
We review a dismissal under Rule 12(b)(6) de novo, construing the
factual allegations in the light most favorable to the plaintiff. Biggs
v. Meadows,
Nevertheless, we agree with the district court's ultimate conclusion
that Plaintiff cannot recover under Bivens for the alleged due process
*9
violations of Defendants. In Chappell v. Wallace ,
Although the specific language of Chappell prohibits suits by
enlisted service members against their superior оfficers, the Supreme
Court in United States v. Stanley,
Before reaching thе merits of Plaintiff's appeal as to the remaining
cause of action, we must address the issue of jurisdiction, both in the
district court and in this court. It is well settled that "[f]ederal courts
are courts of limited jurisdiction. They possess only that power autho-
rized by Constitution and statute." Kokkonen v. Guardian Life Ins.
Co.,
As the Supreme Court has recognized, "It is axiomatic that the
United States may not be sued without its consent and that the exis-
tence of consent is a prerequisite for jurisdiction." United States v.
Mitchell,
of the United States." 28 U.S.C. § 1331.
waiver of sovereign immunity. It merely estаblishes a subject matter
that is within the competence of federal courts to entertain."
Coggeshall Dev. Corp. v. Diamond,
The interplay between the Tucker Act and the APA is somewhat
complicated and raises some significant issues of federal court juris-
diction. Determining the proper statutory framework for the district
court's jurisdiction in this case is critical because it affects the appel-
late jurisdiction of this court. The United States Court of Appeals for
the Federal Circuit, not the regional courts of appeals, has exclusive
jurisdiction over appeals in cases based "in whole or in part" on the
Tucker Act. 28 U.S.C. § 1295(a)(2). The provision of 28 U.S.C.
§ 1295(a)(2) is mandatory and cannot be waived by the parties,
because it relates to the subject matter jurisdiction of this court.
Trayco, Inc. v. United States,
In addition, this court is cautious about trespassing into the prov-
ince of the Court of Federal Claims and the Federal Circuit to decide
non-tort aсtions against the United States. As the United States Court
of Appeals for the D.C. Circuit has recognized,"a primary purpose
of the [Tucker] Act [is] to ensure that a central judicial body adjudi-
cates most claims against the United States Treasury." Kidwell v.
Department of Army,
The APA generally provides that a person who claims to have suf-
fered a legal wrong because of agency action is entitled to judicial
*13
review of that action. 5 U.S.C. § 702. The waiver of sovereign immu-
nity in the APA is limited to suits seeking relief"other than money
damages." Id. In addition, review under the APA is available only for
"final agency action for which there is no other adequate remedy in
a court." 5 U.S.C. § 704 (emphasis added). This limitation has been
interpreted to preclude review under the APA when a plaintiff has an
adequate remedy by suit under the Tucker Act. See, e.g., Alabama
Rural Fire Ins. Co. v. Naylor,
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 records, and such orders may be issued to any appropriаte official of the United States. In any case within its jurisdiction, the court shall have the power to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper and just.
28 U.S.C. § 1491(a)(2). This language authorizing injunctive relief in
limited circumstances does not appear in the Little Tucker Act; however,
it is generally recognized that district courts have authority under the
Mandamus Statute, 28 U.S.C. § 1361, to order the same type of injunc-
tive relief as the Court of Federal Claims. See 1 Moore's Federal Practice
¶ 0.65[2.-3], at 700.111; see also Richardson v. Morris,
The district court would have no authority to order the Secretary
of the Army to promote Plaintiff to Lieutenant Colonel. As the United
States Court of Appeals for the Federal Circuit recently recognized in
a case factually similar to the instant сase, a plaintiff's "prayer that
the Court of Federal Claims direct the Secretary to promote him to the
rank of colonel plainly was a request for impermissible `interfer[ence]
with legitimate Army matters.' Courts will not interject themselves
into the promotion process." Adkins,
B.
Although the district court did not adequately articulate the basis for its jurisdiction in this case, it correctly analyzed the merits of Plaintiff's final cause of action. The district court granted summary judgment for Defendants on Plaintiff's claim that the Army failed to follow its own regulations in reviewing his request for correction of his military records.
We review a grant of summary judgment de novo , employing the
same standards used by the district court. Swanson v. Faulkner, 55
F.3d 956, 964 (4th Cir.), cert. denied,
For all of the foregoing reasons, the order of the district court granting Defendants' motion to dismiss or, in the alternative, for sum- mary judgment, is hereby AFFIRMED.