Fluellen v. United States

44 Fed. Cl. 97, 1999 U.S. Claims LEXIS 143, 1999 WL 428037
CourtUnited States Court of Federal Claims
DecidedJune 23, 1999
DocketNo. 94-537 C
StatusPublished
Cited by15 cases

This text of 44 Fed. Cl. 97 (Fluellen 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
Fluellen v. United States, 44 Fed. Cl. 97, 1999 U.S. Claims LEXIS 143, 1999 WL 428037 (uscfc 1999).

Opinion

OPINION AND ORDER

HEWITT, Judge.

This is an action for the correction of military records and reinstatement to active military duty. Plaintiff, Ron L. Fluellen, filed suit against the United States in August 1994, alleging that he was involuntarily separated from active duty in the Air Force after two improper promotion nonselections.1 Plaintiff specifically challenges the conduct of the Central Major Selection Boards that declined to select him for promotion to major. He asserts that the selection boards convened in panels which contravened statutory authority (“panel evaluation issue”) and abrogated the legal protection afforded reserve officers (“reserve officer issue”).

Plaintiff also asserts that the Air Force improperly conducted his promotion review under the Officer Evaluation System introduced in 1988.2 In'particular, plaintiff alleges that the most senior officer evaluating his [99]*99record met with the other officers evaluating his record to align their promotion recommendations in violation of agency regulations (“mini-board issue”).

Defendant moved to dismiss or, alternatively, for summary judgment. Plaintiff filed a cross motion for summary judgment. In 1997, while briefing was underway, the court stayed the action pending the Federal Circuit’s decision in another case involving the review of various aspects of the Air Force’s promotion procedures. Upon issuance of the appellate court’s opinion in that case, Small v. United States, 158 F.3d 576 (Fed.Cir.1998), the parties briefed the applicability of the Federal Circuit’s decision to this case. The parties also briefed the effect of Department of Defense Directive 1320.9 on the review practices at issue, in particular, whether the use of panels contravened guidance requiring that separate boards consider each “competitive category” (“competitive category issue”).3 For the following reasons, the court grants defendant’s motion for summary judgment and denies plaintiffs motion for summary judgment.4

I. Plaintiffs Complaint

Plaintiff is a former captain in the Air Force Reserves who served on extended active duty. In 1989 and again in 1991, the Air Force’s Central Major Selection Board considered but did not select plaintiff for promotion to major.

In July 1991, plaintiff applied to the Air Force Board for Correction of Military Records (“AFBCMR”), contesting the propriety of his promotion nonselections in 1989 and 1991 and the validity of the 1989 Promotion Recommendation Form (“PRF”).5 Plaintiff specifically complained that “the Air Force’s use of panels as part of the promotion process along with its decision to include so few Reserve officers in that process violated clear statutory directives on the subject and that the new Officer Evaluation System usurps the statutory responsibility of promotion boards.” Complaint (“Compl.”) ¶ 22. The AFBCMR denied relief in February 1992. Four months later, plaintiff wrote the AFBCMR charging that it had failed to consider all of plaintiffs compláints. In January 1994, the AFBCMR denied relief again.

Plaintiff filed this complaint in the United States Court of Federal Claims in August 1994, alleging that the promotion nonselections in 1989 and in 1991 compelled his involuntary separation from active duty in the Air Force in February 1992. Plaintiff complains that the Air Force selection boards operated contrary to law because — rather than working as a collective body — the boards “are broken down into independent and autonomous ... panels.” Compl. ¶ 10. Because the board functions in five member panels without distribution of officer records to members of all panels, plaintiff contends that a majority of the board members do not “recommend” candidates for promotion as required by 10 U.S.C. § 616(c) (1994). Compl. ¶¶ 10, 27. The plaintiff also contends that the panel system prevents the board members from complying with the statutory requirement that they certify:

(1) that the board has carefully considered the record of each officer whose name was furnished to it under section 615 of this title, and (2) that, in the opinion of a majority of the members of the board, the officers recommended for promotion by the board are best qualified for promotion to meet the needs of the armed force concerned (as noted in the guidelines or [100]*100information furnished the board under section 615(b) of this title) among those officers whose names were furnished to the selection board.

10 U.S.C. § 617(a) (1994).

Plaintiff further complains that the random allotment of officer records to panels for ranking and scoring contravenes statutory authority because reserve officers do not necessarily sit on those panels considering reservists for promotion. Compl. ¶ 26. He alleges that the 40 member selection board that considered his promotability in 1989 had only one reserve officer. Compl. ¶¶ 6, 11. The 40 member selection board that considered his promotability in 1991 had just two reserve officers, one of whom considered only the promotability of medical corps officers. Compl. ¶ 12.

In May 1997, this court stayed plaintiffs case pending the decision of the Federal Circuit in Small v. United States, 158 F.3d 576 (Fed.Cir.1998)6 See Order filed May 22, 1997 (suspending the proceedings to “narrow and clarify the issues presented in this case”). After the appellate court issued its decision, this court lifted the stay of proceedings and ordered the parties to brief the legal effect of the Small decision here. The court also ordered the parties to address the promotion board policies articulated in Department of Defense (“DoD”) Directive 1320.9, a subject on which briefing was underway at the court’s request when proceedings were stayed in 1997. See Order filed March 31, 1999.

II. Discussion

A. Standard of Review of AFBCMR Decision

We decide this case on the parties’ cross-motions for summary judgment on the administrative record of the AFBCMR’s decision. Motions for judgment upon the administrative record are treated in accordance with the rules governing motions for summary judgment. Rule of Court of Federal Claims (“RCFC”) 56.1; see Nickerson v. United States, 35 Fed.Cl. 581, 588 (1996), aff'd, 113 F.3d 1255, 1997 WL 177509 (Fed.Cir.1997). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. RCFC 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Jay v. Secretary of DHHS, 998 F.2d 979, 982 (Fed.Cir.1993). A fact is material if it might significantly affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

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44 Fed. Cl. 97, 1999 U.S. Claims LEXIS 143, 1999 WL 428037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fluellen-v-united-states-uscfc-1999.