Randall v. United StatesRandall v. United States
- Reporters:
- ,
- Before:
- Chapman, Wilkinson, Ervin
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 nonselection 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 summary 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 originally commissioned in the Army Reserve on May 9, 1976, after completing 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 September 15, 1980. He received an appointment to the regular Army from the President and was confirmed by the Senate on November 10, 1982. On January 1, 1988, he was promoted to the rank of Mаjor. 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.
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 Quartermaster Branch of the United States Army, indicating 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 avеrage compared to [his] contemporaries” 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 Quartermaster 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 contained an unfavorable rating 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
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, Plaintiff 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
In support of his appeal of OERs # 1 and 2, Plaintiff submitted to the OSRB supporting 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 completed 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 resрect to Plaintiff‘s 1990 OER. In support of that appeal, Plaintiff again submitted favorable testimonials 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 during the rated period. The OSRB conducted a thorough investigation 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 thаt 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 performance 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 to 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 consideration 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 presented and the records do not contain sufficient justification to conclude that it wоuld 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 District 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,
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
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 discrimination 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 Plaintiff‘s Title VII claim for lack of subject matter jurisdiction. Ahmed v. United States, 30 F.3d 514, 516 (4th Cir.1994).
Section 717 of Title VII,
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 was correct in dismissing this count of Plaintiff‘s сomplaint under
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
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, 66 F.3d 56, 59 (4th Cir.1995). “Dismissal for failure to state a claim is proper where ‘it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.’ ” Id. (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984)).
The district court construed Plaintiff‘s complaint as alleging a cause of action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Bivens, the United States Supreme Court held that a plaintiff could sue federal officers individually for damages caused by constitutional torts committed under color of their authority. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.1994).
We have some serious reservations about whether the district court should have implied a Bivens action from the allegations in Plaintiff‘s complaint. Although
Nevertheless, we agree with the district court‘s ultimate conclusion that Plaintiff cannot recover under Bivens for the alleged due process violations of Defendants. In Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), the Supreme Court specifically held that “enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations.” Id. at 305, 103 S.Ct. at 2368. The Chappell Court determined that the unique disciplinary structure of the military and Congress‘s plenary authority over the armed forces presented ” ‘special factors counselling hesitation’ ” to allowing a Bivens-type action by servicemen against their superiors. Id. at 298, 304, 103 S.Ct. at 2364, 2367 (quoting Bivens, 403 U.S. at 396, 91 S.Ct. at 2004-05). The Court noted that Congress has provided specific remedies for complaints and grievances of servicemen, such as applying to the boards for the correction of military records under
Although the specific language of Chappell prohibits suits by enlisted service members against their superior officers, the Supreme Court in United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987), specifically held that “no Bivens remedy is available for injuries that ‘arise out of or are in the course of activity incident to service.’ ” Id. at 684, 107 S.Ct. at 3064 (quoting Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950)); see also Mickens v. United States, 760 F.2d 539, 540 (4th Cir.1985) (per curiam) (holding that the rationale of Chappell bars a Bivens-type suit brought by a subordinate officer against a superior officer), cert. denied, 474 U.S. 1104, 106 S.Ct. 889, 88 L.Ed.2d 923 (1986).
This court agrees with the district court‘s determination that Plaintiff‘s allegations “arise out of or are in the course of activity incident to service.” Therefore, the district court was correct in dismissing Plaintiff‘s due process cause of action for failure to state a claim.5
IV.
Before reaching the 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 authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, ----, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994). Although neither party has challenged the jurisdiction of this court or the district court, the Supreme Court has stated that “every federal appellate court has a special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,’ even though the parties are prepared to concede it.” Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934)). The court‘s concern about jurisdiction in this case stems primarily from the district court‘s failure to address the issue of sovereign immunity.6
As the Supreme Court has recognized, “It is axiomatic that the United States may not be sued without its consent and that the existеnce of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983). Furthermore, “a waiver of the traditional sovereign immunity ‘cannot be implied but must be unequivocally expressed.’ ” United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953-54, 47 L.Ed.2d 114 (1976) (quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502-03, 23 L.Ed.2d 52 (1969)).
Here, the district court rejected the only basis for jurisdiction alleged in Plaintiff‘s complaint: the Little Tucker Act,
The district court‘s analysis of Plaintiff‘s case under Bivens, supra, is also not sufficient to remove the concern of sovereign immunity. Bivens did not abolish the doctrine of sovereign immunity of the United States. Any remedy under Bivens is against federal officials individually, not the federal government. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.1994).
Generally, plaintiffs in cases such as this one, challenging a decision of a board for the correction of military records, have used one of two avenues to establish federal jurisdiction: the Tucker Act,
As noted earlier, Plaintiff‘s complaint invokes the Little Tucker Act,
The interplay between the Tucker Act and the APA is somewhat complicated and raises some significant issues of federal court jurisdiction. Determining the proper statutory framework for the district court‘s jurisdiction in this case is critical because it affects the appellate 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.
In addition, this court is cautious about trespassing into the province of the Court of Federal Claims and the Federal Circuit to decide non-tort actions 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 adjudicates most claims against the United States Treasury.” Kidwell v. Department of Army, 56 F.3d 279, 284 (D.C.Cir.1995) (citing United States v. Hohri, 482 U.S. 64, 71-73, 107 S.Ct. 2246, 2251-52, 96 L.Ed.2d 51 (1987)). The Court of Federal Claims and the Court of Appeals for the Federal Circuit have “extensive experience reviewing decisions of corrections boards in military pаy cases.” Mitchell v. United States, 930 F.2d 893, 896 (Fed.Cir.1991). With these basic principles in mind, we turn our analysis to whether the Tucker Act or the APA provides the appropriate jurisdictional foundation for this case.
A.
The APA generally provides that a person who claims to have suffered a legal wrong because of agency action is entitled to judicial review of that action.
The Tucker Act actually consists of two parts:
The district court rejected Plaintiff‘s use of the Tucker Act to establish jurisdiction in this case, because the court concluded that his claims were primarily for equitable relief. J.A. at 83. The court determined that Plaintiff‘s claim for money damages in the form of back pay was merely subordinate to his equitable claims. Although the actual language of the Tucker Act does not specifically prohibit the Court of Federal Claims from issuing injunctive relief, the United States Supreme Court has recognized, as a general rule, that “the Court of [Federal] Claims hаs no power to grant equitable relief.” Richardson v. Morris, 409 U.S. 464, 465, 93 S.Ct. 629, 630, 34 L.Ed.2d 647 (1973) (per curiam). The Tucker Act does, however, authorize courts to award injunctive relief in limited circumstances, when such relief is necessary to provide an entire remedy and when the injunction is “an incident of and collateral to” an award of monetary relief.
The district court is correct in its assessment that Plaintiff‘s claim for injunctive relief is the essence of his complaint. The injunctive relief requested by Plaintiff would not be available under the Tucker Act because it would not be an incident of, or collateral to, a monetary award. See Adkins v. United States, 68 F.3d 1317, 1324 n. 9 (Fed.Cir.1995) (“[T]he Cоurt of Federal Claims was without authority [under the Tucker Act] to direct the Secretary[of the Army] to promote [plaintiff] to the rank of colonel because such relief would not be subordinate or collateral to a monetary award.“). Indeed, Plaintiff‘s claim for back pay10 would only arise if Plaintiff‘s request for retroactive promotion were granted.
This case is different from a case where the plaintiff brings an action to review the decision of a board for the correction of military appeals after he has already been discharged from the service. See, e.g., Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804, 810 & n. 10 (1979) (en banс). In such a case, a successful plaintiff has a cause of action for back pay from the date of his discharge to the date of the court‘s determination. See id. Here, by contrast, Plaintiff has no present claim for back pay because he is still serving in the Army without a loss of his position or pay.
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 case, a plaintiff‘s “prayer that the Court of Fеderal 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, 68 F.3d at 1324 (quoting Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953)); see also Voge v. United States, 844 F.2d 776, 780 (Fed.Cir.) (“This is like thousands of other routine personnel decisions regularly made by the services which are variously held nonjusticiable or beyond the competence or the jurisdiction of the courts to wrestle with.“), cert. denied, 488 U.S. 941, 109 S.Ct. 365, 102 L.Ed.2d 355 (1988). The only possible relief that Plaintiff could get in this case would be for the district court to order that Plaintiff‘s military records be corrected and to remand the сase for another review in due course by the appropriate promotion selection board. Because Plaintiff cannot receive a court-ordered retroactive promotion, there is no basis for back pay in this case and, therefore, no monetary damages on which to premise jurisdiction under the Tucker Act. Accordingly, the district court correctly concluded that the Tucker Act does not apply in this case. Since Plaintiff has no other adequate remedy in a court, review of his case is proper under the APA.
B.
Although the district court did not adequately artiсulate 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, --- U.S. ----, 116 S.Ct. 417, 133 L.Ed.2d 335 (1995).
The district court‘s review of the ABCMR‘s decision is quite limited. As the district court properly recognized, such decisions can be set aside only “if they are arbitrary, capricious, or not based on substantial evidence.” Chappell v. Wallace, 462 U.S. 296, 303, 103 S.Ct. 2362, 2367, 76 L.Ed.2d 586 (1983); Robbins v. United States, 29 Fed. Cl. 717, 725 (1993) (“The function of the court is not to rеweigh the evidence presented to the ABCMR. Rather, the court is charged with determining ‘whether the conclusion being reviewed is supported by substantial evidence.’ “) (quoting Heisig v. United States, 719 F.2d 1153, 1157 (Fed.Cir.1983)).
After carefully reviewing Plaintiff‘s allegations and the record below, we agree with the district court‘s ruling that the facts, taken in the light most favorable to Plaintiff, cannot support a finding that the ABCMR acted arbitrarily or capriciously, or without substantial evidentiary support, in denying Plaintiff‘s requests. Therefore, we determine that the district court was correct in granting Defendants’ motion for summary judgment as to Plaintiff‘s third cause of action.
V.
For all of the foregoing reasons, the order of the district court granting Defendants’ motion to dismiss or, in the alternative, for summary judgment, is hereby
AFFIRMED.
Notes
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, placemеnt in appropriate duty or retirement status, and correction of applicable records, and such orders may be issued to any appropriate 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.