Baker v. United States

35 Fed. Cl. 749, 1996 U.S. Claims LEXIS 120, 1996 WL 344896
CourtUnited States Court of Federal Claims
DecidedJune 24, 1996
DocketNo. 94-453C
StatusPublished

This text of 35 Fed. Cl. 749 (Baker 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
Baker v. United States, 35 Fed. Cl. 749, 1996 U.S. Claims LEXIS 120, 1996 WL 344896 (uscfc 1996).

Opinion

ORDER

MILLER, Judge.

This case comes before the court on cross-motions for summary judgment on counts 8-12 of the amendment to the amended complaint.1 Eighty-three retired United States Air Force colonels (“plaintiffs”) challenge their selection for retirement by the Fiscal Year (“FY”) 1992 Selective Early Retirement Board (the “SERB”) formed pursuant to 10 U.S.C. §§ 638, 638a (1994). On April 3,1996, defendant filed a supplemental motion for summary judgment on the counts in the amendment to the amended complaint. On April 29, 1996, plaintiffs filed a supplemental cross-motion for summary judgment on the counts in the amendment to the amended complaint. The counts are as follows: Count 8 — alleging that the Department of the Air Force’s SERB violated Department of Defense (“DOD”) Directive 1320.12 (Feb. 4, 1992) (requiring a SERB report to include 6 certifications); Count 9 — alleging that the SERB violated the Department of Defense (“DOD”) Directive 1320.12 (June 3, 1987), by allowing staff members to give substantive guidance to the SERB; Count 10 — alleging that the Secretary of the Air Force (the “Secretary”) acted arbitrarily and capriciously when he approved the results of the SERB; Count 11 — alleging that the SERB was conducted in violation of the Formal Charge (the “Charge”) because staff members assisted the members of the SERB in preparing the report on the selection rates for minority and female officers; and Count 12 — alleging that the host of errors asserted in the previous counts amount to a denial of fundamental fairness and due process of law. Argument is deemed unnecessary.

DISCUSSION

A complete description of the facts, the applicable statutes and regulations, and the standard of review appears in the opinion addressing the complaint prior to amendment, which was issued on December 8,1995, and will not be repeated. See Baker v. United States, 34 Fed.Cl. 645 (1995). Those facts and applicable statutes and regulations necessary for a consideration of the remaining counts will be discussed in the context of the court’s analysis of those counts.

1. Count 8

Plaintiffs argue that the SERB was conducted in violation of DOD Directive 1320.12 U (F)(2)(c)(4) (Feb. 4, 1992), which requires, in part:

On completion of board deliberations, the board president, the board members, and board recorders shall, as a minimum, certify in the report to the Secretary of the Military Department concerned:
[751]*751(a) That, to the best of their knowledge, the board complied with this Directive.
(b) That he or she was not subject to or aware of any censure, reprimand, or admonishment resulting from the recommendations of the board or the exercise of any lawful function within the authorized discretion of the board.
(c) That he or she was not subject to or aware of any attempt to coerce or influence improperly any action in the formulation of the board’s recommendations.
(d) That he or she was not a party to or aware of any attempt at unauthorized communications.
(e) That, to the best of their knowledge, the board carefully considered the records of each officer whose name was furnished to the board.
(f) That the officers recommended for promotion are, in the opinion of the majority of the members of the board, fully qualified and best qualified for promotion to meet the needs of the armed force concerned, as noted in the written instructions furnished to the board by the Secretary of the Military Department, among those officers whose names were furnished to the board.

The SERB board report did not include all of these certifications. As defendant notes, however, H G of DOD Directive 1320.12 (Feb. 4, 1992), states: “This directive is effective immediately and shall govern all selection boards convened on or after the date of this Directive.” The SERB in this case was convened on January 6, 1992. Thus, this DOD Directive does not apply to the FY92 SERB.

Plaintiffs argue that, despite the clear language of the 1992 version of DOD Directive 1320.12, it applies to the FY92 SERB because of references to this DOD Directive in the Air Force’s Force Reduction Branch Records. The court has reviewed plaintiffs’ list of alleged references to the 1992 version of DOD Directive 1320.12 in the administrative record, and none of them mentions this version. It is true that copies of slides that summarize the SERB’S procedures, prepared by the Military Personnel Center, mention “Communication or Guidance and Information to Boards (DODD 1320.12)” but this refers to the June 3, 1987 version of DOD Directive 1320.12 — not the 1992 version.2 No basis exists in this record that would allow the court to find that the Air Force violated the February 4,1992 Directive. The Air Force cannot be held accountable for violation of a Directive that is not applicable to the SERB at issue.

2. Count 9

Plaintiffs argue that the SERB was conducted in violation of DOD Directive 1320.12 (June 3, 1987), because “[ajgents of the [Air Force] prepared ‘standard language’ for use by officer selection board reports that made unauthorized assumptions about how the substantive guidance to selection boards should be implemented.” Plfs’ Amendment to the Amended Compl. filed Sept. 14, 1995, H 59. According to plaintiffs, this assistance contravened the DOD Directive’s requirement that only the Secretary give substantive guidance to the SERB.

Plaintiffs assert that the January 13, 1992 SERB board report to the Secretary is evidence of improper substantive guidance by staff. Paragraph 5 of the board report reads, in pertinent part:

With your guidance concerning minorities and women specifically in mind, the board thoroughly reviewed the records of all minority and woman officers eligible for selective early retirement. The retention rates for blacks and women were better than the overall board average. The retention rate for Hispanic officers was below the board average. To ensure each minority and woman officer received fair and equitable consideration, the board president carefully reviewed their records and the scoring results. Where there was any doubt as to the competitiveness of an officer, he caused the record to be rescored [752]*752to resolve the doubt. It is the judgement of the board president and the members of the board that those officers recommended for retention are the best qualified officers.

As the December 12, 1995 opinion notes, defendant supplied affidavits from two individuals 3 who state that 115 of the board report is incorrect and does not accurately describe the procedures followed by the SERB. See Baker, 34 Fed.Cl. at 652-53. One of the declarants stated:

I did not actually draft the specific language contained in the letter to the Secretary [of January 13, 1992], I signed the draft letter the administrative staff prepared, because the draft appeared to be a fair description of the proceedings. In hindsight, other words might have more precisely portrayed the SERB’S deliberations.

Declaration of Lt. Gen. John E. Jaquish, (undated), at 7.

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35 Fed. Cl. 749, 1996 U.S. Claims LEXIS 120, 1996 WL 344896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-united-states-uscfc-1996.