Gaynor

Court of Claims

Gaynor

650 F.2d 291, 226 Ct. Cl. 537, 1980 U.S. Ct. Cl. LEXIS 397

CourtUnited States Court of Claims

DecidedDecember 12, 1980

DocketNo. 174-80C

StatusPublished

This text of 650 F.2d 291 (Gaynor) 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

Gaynor, 650 F.2d 291, 226 Ct. Cl. 537, 1980 U.S. Ct. Cl. LEXIS 397 (cc 1980).

Pincite

Opinion

Plaintiff, a major in the Regular Army, alleges that an officer efficiency report (OER) evaluating her performance during the period of October 25,1973, to June 23,1974, was prepared in violation of Army regulations and caused her nonselection for promotion to the grade of lieutenant colonel. Plaintiff here seeks that promotion and money damages representing the difference in the two grades, and expungement of the OER. Defendant has moved to dismiss the petition and the motion is unopposed. We agree with defendant.

This court has said so often that promotions in the military service are within the military’s discretion under the law that it is hardly necessary to cite any authority for it now. We have no such jurisdiction absent the showing of a legal right to promotion. Plaintiff here has not shown us that she has any such right. Therefore, the money damages she seeks incident to promotion cannot be awarded. See Savio v. United States, 213 Ct. Cl. 737, 740 (1977); Borgford v. United States, 208 Ct. Cl. 1040 (1976), and cases cited therein.

it is therefore ordered, upon consideration of the petition, the answer, and defendant’s unopposed motion to dismiss, that plaintiff has failed to state a claim within the jurisdiction of this court. Defendant’s motion is granted. The petition is dismissed.

Kunzig, Judge,

concurs in the result.

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Plaintiff, a major in the Regular Army, alleges that an officer efficiency report (OER) evaluating her performance during the period of October 25,1973, to June 23,1974, was prepared in violation of Army regulations and caused her nonselection for promotion to the grade of lieutenant colonel. Plaintiff here seeks that promotion and money damages representing the difference in the two grades, and expungement of the OER. Defendant has moved to dismiss the petition and the motion is unopposed. We agree with defendant.

This court has said so often that promotions in the military service are within the military’s discretion under the law that it is hardly necessary to cite any authority for it now. We have no such jurisdiction absent the showing of a legal right to promotion. Plaintiff here has not shown us that she has any such right. Therefore, the money damages she seeks incident to promotion cannot be awarded. See Savio v. United States, 213 Ct. Cl. 737, 740 (1977); Borgford v. United States, 208 Ct. Cl. 1040 (1976), and cases cited therein.

it is therefore ordered, upon consideration of the petition, the answer, and defendant’s unopposed motion to dismiss, that plaintiff has failed to state a claim within the jurisdiction of this court. Defendant’s motion is granted. The petition is dismissed.

Kunzig, Judge,

concurs in the result.

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Bluebook (online)

650 F.2d 291, 226 Ct. Cl. 537, 1980 U.S. Ct. Cl. LEXIS 397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaynor-cc-1980.