Ancman v. United States

77 Fed. Cl. 368, 2007 U.S. Claims LEXIS 182, 2007 WL 1740018
CourtUnited States Court of Federal Claims
DecidedJune 13, 2007
DocketNo. 05-455 C
StatusPublished
Cited by7 cases

This text of 77 Fed. Cl. 368 (Ancman v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ancman v. United States, 77 Fed. Cl. 368, 2007 U.S. Claims LEXIS 182, 2007 WL 1740018 (uscfc 2007).

Opinion

OPINION

SWEENEY, Judge.

Before the court are Defendant’s Motion to Dismiss, or in the Alternative, Motion for Judgment Upon the Administrative Record (“motion” or “Mot.”) and Plaintiffs’ Cross-Motion for Judgment on the Administrative Record (“cross-motion”). In this case, plaintiffs, upon retirement from the United States Air Force (“Air Force”), learned that their actual retirement pay differed significantly from the estimates they received before applying for retirement. After investigating the cause of the discrepancy, plaintiffs instituted an administrative proceeding before the Air Force Board for Correction of Military Records (“AFBCMR”), seeking an increase in their retirement pay to match the retirement pay estimates. The AFBCMR issued a recommended ruling favorable to plaintiffs, which was rejected by the Secretary of the Air Force. In this court, plaintiffs request a ruling that directs the Air Force to increase their retirement pay to the estimated retirement pay that they were quoted, provide them with their back retirement pay differential, and to pay them compensatory damages. For the reasons set forth below, the court finds that it lacks jurisdiction to consider the merits of some of plaintiffs’ claims and that plaintiffs have failed to state a claim upon which relief can [369]*369be granted for their remaining claims. Accordingly, defendant’s motion is granted and plaintiffs’ motion is denied.

I. FACTUAL AND PROCEDURAL HISTORY1

Plaintiffs are both retired Air Force majors. Compl. II3. At the time of their retirement, plaintiff Cort Ancman had accumulated 15 years, 3 months, and 11 days of active service and plaintiff Eileen Ancman had accumulated 15 years, 8 months, and 14 days of active service. Id. II5; AR1 at 18; AR2 at 17.

On December 2, 1997, plaintiffs applied and were approved for early retirement pursuant to the Fiscal Year 1998 Drawdown Program for Temporary Early Retirement Authority (“TERA”), Pub.L. No. 102-484, § 4403, 106 Stat. 2315, 2702-04 (1992) (codified as amended at 10 U.S.C. § 1293 note), effective August 31, 1998. Compl. II6; AR1 at 25; AR2 at 22. Prior to submitting their retirement applications, plaintiffs were required to review and sign a Retirement Pre-Application Checklist, which acknowledged their receipt of a retirement pay estimate. AR1 at 26, 28-30; AR2 at 23, 25-27. Plaintiffs’ retirement pay estimates, provided by the Pentagon Manpower Personnel Flight (“Pentagon MPF”), were $1,482 per month for plaintiff Cort Ancman and $1,535 per month for plaintiff Eileen Ancman. Compl. H 7; AR1 at 16; AR2 at 15. The computer-generated estimates included the following cautionary statement: “The dollar amount shown below is an ESTIMATE of your retirement pay. This ESTIMATE is based on the 1997 Pay Scale. This ESTIMATE is before taxes. Contact DFAS-CL for official retired pay estimates: DFAS-CL, Attn: ROB, P.O. Box 99191, Cleveland, OH 44199.”2 AR1 at 16; AR2 at 15. Plaintiffs allege that they were told that the estimates were accurate to within $1 to $2. Compl. H 7; AR1 at 12; AR2 at 11.

Pursuant to the TERA, plaintiffs retired on August 31, 1998, each with the grade of major. Compl. 118. But see AR1 at 18 (indicating a retirement date of September 1, 1998); AR2 at 17 (same). On September 25, 1998, plaintiffs each received a Summary of Retired Pay Account from the DFAS-CL, which stated the actual monthly retirement pay of $1,393 for plaintiff Cort Ancman and $1,413 for plaintiff Eileen Ancman. Compl. 119; AR1 at 18-19; AR2 at 17-18. Plaintiffs’ monthly combined actual retirement pay was $211 less than their estimated retirement pay. Plaintiffs contend that they had made “life changing decisions” based upon their estimated retirement pay and that they would not have retired had they known that their actual retirement pay would be so much less than their estimated retirement pay. AR1 at 12, 33; AR2 at 11, 30.

To investigate the discrepancy between their retirement pay estimates and actual retirement pay, plaintiffs visited Nellis Air Force Base (“Nellis”) on October 7, 1998. Compl. 1110. Officials at Nellis provided monthly retirement pay estimates of $1,398 for plaintiff Cort Ancman and $1,448 for plaintiff Eileen Ancman. Id. 1110; AR1 at 17; AR2 at 16. The Nellis estimates, when combined, were $40 less per month than plaintiffs’ actual retirement pay. Upon receiving these figures, plaintiffs came to believe that the computer model used by the Air Force to estimate retirement pay was faulty. Compl. II10. Officials at Nellis ran the model for plaintiffs several times, and obtained different pay estimates each time. Id. Concerned about the accuracy of the computer model, officials at Nellis sent a facsimile inquiry to the responsible entity, the Air Force Personnel Center (“AFPC”). Id.; AR1 at 15; AR2 at 14. The inquiry, transmitted on October 7, 1998, with the subject line “Retired Pay Calculator Inaccuracies,” stated the following:

[370]*370Please see enclosed information re: estimate of Maj Ancman and spouse’s retired pay. Understandably, the Pentagon where she retired from based the first estimates on the 97 pay calculator. We are concerned, however, that there is still a discrepancy with the 98 pay calculator, especially since the pay should be higher for 98 estimates. Your attention to this matter is appreciated.

Compl. H10; AR1 at 15; AR2 at 14. Plaintiffs also telephoned Senior Master Sergeant Feroz A. Essa at the AFPC on October 7, 1998, who purportedly told plaintiffs that the estimates were accurate to within $1 to $2. AR1 at 12, 35, 59; AR2 at 11, 32, 56; see also AR1 at 59 (Senior Airman Kelley T. Klimek’s statement confirming plaintiffs’ account of their conversation with Sergeant Essa); AR2 at 56 (same); AR1 at 23 (Sergeant Essa’s statement that the estimates were “usually within a few dollars from the actual DFAS calculated pay”). But see AR1 at 23 (Sergeant Essa’s denial that he said that the estimates were accurate to within $1 to $2). Sergeant Essa also advised plaintiffs that the amounts provided by the Pentagon MPF on December 2, 1997 were estimates only, and that plaintiffs “should have sought out ‘other opinions’” concerning the amounts of their retired pay pursuant to the disclaimers included with the estimates. AR1 at 14, 23; AR2 at 13. Finally, Sergeant Essa advised plaintiffs of their option to initiate an administrate review to challenge the amount of their retirement pay. AR1 at 14; AR2 at 13.

Plaintiffs initiated an administrative review the next day, seeking an increase in their actual retirement pay to the amount that had been provided to them in their estimates. Compl. 1111; AR1 at 11-12, 21; AR2 at 10-11, 20. Upon receipt of plaintiffs’ application, the AFBCMR solicited advisory opinions from the AFPC. AR1 at 4-5; AR2 at 4-5. The advisory opinions, prepared by Lieutenant Colonel Bret Stevens on November 25, 1998, AR1 at 25-27, AR2 at 22-24, explained why the estimates provided by the Pentagon MPF and Nellis were incorrect:

[W]e discovered incorrect information had been used in both retirement calculations. When the applicant received the Dec 97 estimate, an official 10 USC 1405 service date had not yet been computed by AFPC’s Retirements Branch personnel. Normally, this date is not produced until an individual reaches 18 years of service.

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Cite This Page — Counsel Stack

Bluebook (online)
77 Fed. Cl. 368, 2007 U.S. Claims LEXIS 182, 2007 WL 1740018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ancman-v-united-states-uscfc-2007.