Christian v. United States

49 Fed. Cl. 720, 2001 U.S. Claims LEXIS 124, 2001 WL 789075
CourtUnited States Court of Federal Claims
DecidedJuly 10, 2001
DocketNo. 97-165C
StatusPublished
Cited by8 cases

This text of 49 Fed. Cl. 720 (Christian 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
Christian v. United States, 49 Fed. Cl. 720, 2001 U.S. Claims LEXIS 124, 2001 WL 789075 (uscfc 2001).

Opinion

OPINION

SMITH, Senior Judge.

I. INTRODUCTION

In the June 5, 2000 Opinion, Christian v. United States, 46 Fed.Cl. 793 (2000)(herein-after Liability Opinion), this court ruled that the Memorandum of Instruction (MOI) issued by the Secretary of the Army to the 1992 Army Competitive Category Lieutenant Colonel Selective Early Retirement Board (SERB) unconstitutionally discriminated on the basis of race, creating race-based evaluation criteria and revote procedures. That opinion presents the pertinent facts, which do not require wholesale repetition. The court certified the class of nonminority males1 “as to liability” and “require[d] further proceedings on the question of remedies, especially in light of class certification on liability,” id. at 817.

A status conference was held on September 11, 2000 and highlighted the parties’ diametrically opposite views on which remedies are appropriate. Plaintiff stated its position that the appropriate remedy is court-ordered active duty back pay and corresponding non-monetary remedies, such as “constructive service” remedies authorized under the Military Pay Act, 37 U.S.C. § 204, the military records correction statute, 10 U.S.C. § 1552, and the Tucker Act, 28 U.S.C. § 1491(a)(2). The government, however, requested that, pursuant to RCFC 60.1(a)(i) and (ii), and 28 U.S.C. § 1491(a)(2), the en[721]*721tire case be remanded to the Secretary for reconsideration by a reconstituted SERB. Describing the remand as a “harmless error” process, the government alleged that “[i]f the Court were to award all the relief requested by Plaintiffs counsel, regardless of merit, well over 1,000 people would receive an unjust windfall at the expense of both the taxpayers and military morale.” Tr. of Status Conference at 18. The court ordered a round of briefing on remedies and an additional oral argument. Plaintiff also filed a Motion to Require Immediate Preparation of List of Potential Class Members, Retrieval of Personnel Files, and Tagging of Financial Files (Motion to Compel), which defendant asked the court to reject for mootness. At oral argument, the court from the bench DENIED defendant’s request for remand and GRANTED plaintiffs request for remedies. Subsequently, plaintiffs counsel submitted for the court’s approval a Draft Agreement regarding attorney fees, a consulting fee for LTC Christian, and expenses. This Opinion contains full explanations of the court’s ruling on remedies, the Motion to Compel, and the Draft Agreement.

The United States and its military officers have a special relationship. No other profession asks so much of a man or a woman undertaking it. At the same time, there is no other profession on which the very existence of this country and its ideals depend so much. General Douglas MacArthur gave this definition of the Army officers’ calling:

Duty — Honor—Country. Those three hallowed words reverently dictate what you ought to be, what you can be, what you will be.... [Tjhrough all this welter of change and development [in politics, economics, and technology], your mission remains fixed, determined, inviolable — it is to win our wars. Everything else in your professional career is but corollary to this vital dedication. All other public purposes, all other public projects, all other public needs, great or small, will find others for their accomplishment; but you are the ones who are trained to fight: yours is the profession of arms — the will to win, the sure knowledge that in war there is no substitute for victory; that if you lose, the nation will be destroyed; that the very obsession of your public service must be Duty — Honor—Country. ... [Sjerene, calm, aloof, you stand as the nation’s war-guardian, as its lifeguard from the raging tides of internátional conflict, as its gladiator in the arena of battle. For a century and a half you have defended, guarded, and protected the hallowed traditions of liberty and freedom, of right and justice ____
You are the leaven which binds together the entire fabric of our national system of defense. From your ranks come the great captains who hold the nation’s destiny in their hands the moment the war tocsin sounds. [You] never failed us. Were you to do so, a million ghosts in olive drab, in brown khaki, in blue and gray, would rise from their white crosses thundering those magic words — Duty—Honor—Country.

Address by General of the Army Douglas MacArthur to the- Members of the Association of Graduates, U.S.M.A., The Corps of Cadets, and Distinguished Guests upon His Acceptance of The Sylvanus Thayer Award, United States Military Academy, West Point, New York, at 1, 5-6. (May 12, 1962)(on file with the U.S.M.A. Public Affairs Office).

When individuals accept officer commissions and assume so sacred a trust, this nation in turn fulfills its part by offering these officers pay and benefits for the duration of their service. The nation also promises, through its Constitution, that its officers who defend liberty abroad will enjoy equal rights and liberties at home. The appropriate remedy for improper retirement because of racial discrimination must honor both of these commitments. It must be consistent with the “unique characteristics and commitment of military service” and “with the Court’s historic jurisdiction.” Tr. of Oral Argument at 48.

To be sure, the government’s “harmless error” proposal addresses important considerations: Secretarial powers over defense policy and protection of the public treasury’s integrity. Yet the government’s position must yield to the judgement of Congress, acknowledged by the courts, that constructive service remedies are necessary. The [722]*722details of allowed remedies, however, are a matter for further proceedings in this case.

II. CONSTRUCTIVE SERVICE DOCTRINE

The “constructive service” doctrine is one of the most venerable in this court, originating with Smith’s Case, 2 Ct.Cl. 206, 1800 WL 464 (1866). The plaintiff, an assistant quartermaster in the Army, was dismissed by an order of the Secretary of War. President Abraham Lincoln subsequently revoked the dismissal order on appeal. The Army, however, refused pay for the time between dismissal and reinstatement. The government took the position that “[i]t may be the misfortune of this claimant to have fallen under unjust censure, requiring his removal from office, but the power to appoint includes the power to remove all military officers.” Id. at 208. The court found that constructive service pay was required:

When the order of dismissal was revoked, it was revoked from its inception, and altogether, because from its nature, it was indivisible and could not operate for a term ... for though an officer may be suspended from his duty, he cannot be suspended from his office ... [and] the reason for revoking [a dismissal] goes‘to the whole, and not to the part of it, and such is to be taken as the purpose of the revocation. If the dismissal was revoked from its inception, all the consequences were annulled, and the petitioner ...

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Bluebook (online)
49 Fed. Cl. 720, 2001 U.S. Claims LEXIS 124, 2001 WL 789075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christian-v-united-states-uscfc-2001.