Cook v. United States

536 F.2d 365, 210 Ct. Cl. 368, 1976 U.S. Ct. Cl. LEXIS 19
CourtUnited States Court of Claims
DecidedJune 16, 1976
DocketNo. 348-74
StatusPublished
Cited by5 cases

This text of 536 F.2d 365 (Cook v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. United States, 536 F.2d 365, 210 Ct. Cl. 368, 1976 U.S. Ct. Cl. LEXIS 19 (cc 1976).

Opinion

IvuNzig, Judge,

delivered tlie opinion of tbe court:

In this civilian pay case plaintiffs, executors of the estate of • Kenneth S. Cook, formerly employed as' an Operations Research Analyst at Holloman Air Force Base, sue for Cook’s back pay. In 1967, Cook was involuntarily retired from his position for mental disability. Plaintiffs bring the instant action to invalidate the retirement.

The gravamen of the complaint is that the involuntary retirement procedures followed by defendant violated Cook’s constitutional rights to due process and free speech. Plaintiffs also say that the procedures contravened certain statutes and regulations. We find that the procedures comported with all legal requirements and, therefore, hold for defendant.

The problem .which eventually culminated in Cook’s retirement began with ■ submission of three letters to the Commander, Office of Aerospace Research (OAR). In those letters Cook criticized the performance of his immediate superior, a LTC Clarke. The letters contained several cartoon-type drawings. The OAR responded by advising Cook to settle any disputes within the grievance system provided by the Air Force. The OAR also sent copies of Cook’s letters to Clarke.

In December 1966 and January 1967, Cook underwent medical examination. The examining surgeon found no evidence of disability. Nor did the psychiatrist. However, a consulting psychologist described Cook as a “psychotic personality with' paranoid tendencies.” The psychologist recommended withdrawal of Cook’s security clearance, coupled with a change in duty assignment. As a result, Holloman convened a Medical Board to consider Cook’s case. The Board interviewed both Clarke and Cook. It ordered additional examinations which proved negative. However, the Board concluded that Cook suffered from a “paranoid personality pattern” and suggested that he be retired for medical reasons.

The Director of Base Medical Services approved the Board’s findings despite Cook’s submission of additional reports from two doctors and several character references. [371]*371On May 16,1967, the Base instituted involuntary retirement proceedings against Cook. After the requisite administrative determinations and appeals Cook was involuntarily retired. Cook then took his case to the United States District Court for the District of Columbia, Judge -William ■ B. Jones (now Chief Judge) granted the Government’s motion for summary judgment. Cook died during the pendency of an appeal to the D.C. Circuit and the case was dismissed as moot without prejudice to the executors to bring an appropriate action in this court.

Plaintiffs’ motion for summary judgment seeks a determination that Cook’s involuntary retirement proceedings were invalid. The attack centers on the proceedings before the Medical Board at Holloman Air Force Base. Plaintiffs say that there is sufficient error in the administrative determinations to reverse the actions taken by the CSC and the Air Force. The atmosphere of reprisal against Cook, the failure to consider evidence favorable to him, and the use of ■“tainted evidence” all distort the pattern of the retirement process, plaintiffs contend.

Specifically, plaintiffs contest: (1) the composition of the Medical Board, (2) the adequacy of notice given to Cook of the adverse proceedings, (3) defendant’s failure to afford Cook the right to counsel and cross-examination at the Board hearings, (4) the effect on Cook’s free speech right caused by defendant’s actions against Cook and (5) the CSC’s arbitrary misuse of its discretion.

Upon review of the motions, briefs and pleadings, in addition to the CSC record, we find no reversible error in the involuntary retirement proceedings. We, therefore, deny plaintiff’s motion for summary judgment and grant defendant’s cross-motion.

First, the Medical Board of which plaintiffs complain, was properly constituted. Plaintiffs say the Board was invalid because it included a consulting psychologist who was not a Medical Corps officer. The Air Force Manual 168-4(b) provides in part:

Appropriate Members. Begulations require that personnel appointed to a medical board will be “medical officers.” This term includes medicad officers. * * * and appointed consultants. * * *

[372]*372As a consulting psychologist at Holloman AFB, the Medical Board member of which plaintiffs complain was correctly appointed under the regulations. The Board included no unqualified officers.

'Second, plaintiff properly received all notice required by the Regulations precedent to the adverse action against him. Air Force Regulation 40-752, ¶5^), specifically provides notice requirements:

The date of the medical determination must be not more than 30 days before the date of the notice of the proposed ■ adverse action.

Plaintiffs confuse the functions of the Medical Board and the CSC. The purpose of the Board is to evaluate plaintiff’s condition and make recommendations to the Air Force. The convening of the Board is not, in and of itself, an adverse action. The adverse action is the involuntary retirement proceeding before the CSC. Plaintiffs do not allege that Cook failed to receive proper notice of the CSC proceedings. Instead, they complain that no written notice was given to plaintiff prior to the Medical Board sessions. However, the Regulations provide no specific notice requirement for Board determinations. Plaintiffs would transpose the 30 day requirement to the Medical Board setting but there is no authority for this. Even if some form of notice is required, the record shows that Cook must have received it for he did. appear before the Board. In short, plaintiffs fail to’ demonstrate that defendant violated notice requirements.

Third, defendant violated no procedural rights guaranteed to Cook by failing to provide counsel and an opportunity to cross-examine Board witnesses. Plaintiffs argue that the refusal to grant Cook his right to counsel and cross-examination violated both regulations and the Constitution.' Once again plaintiffs would confuse the nature of the Medical Board determination with the CSC action.

Defendant’s conduct did not violate the Regulations. AFR 11-1 governs the general conduct of personnel investigations. It provides for notification of the right to counsel and cross-examination. Plaintiffs say that this Regulation must be applied to Medical Board proceedings. However, AFM 168-4,, ¶ 16-5b governs such requirements. It states that the “princi-[373]*373pies” of AFB, 11-1 are to be considered in the conduct of Medical Boards. It is permissive, not mandatory. Defendant did not violate any regulations by failing to provide Cook with the right to counsel or the opportunity to cross-examine witnesses at the Board hearing.

Moreover, the failure to grant Cook these rights did not violate any Constitutional right to due process. It is axiomatic that due process guarantees no particular form of procedures. See, e.g., Mitchell v. W. T. Grant Co., 416 U.S. 600, 610 (1974).

The types of “liberty” and “property” protected by the Due Process Clause vary widely, and what may be required under that Clause in dealing with one set of interests which it protects may not be required in dealing with another set of interests. [Arnett v. Kennedy,

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536 F.2d 365, 210 Ct. Cl. 368, 1976 U.S. Ct. Cl. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-united-states-cc-1976.