Godwin v. United States

54 Fed. Cl. 217, 2002 U.S. Claims LEXIS 290, 2002 WL 31441206
CourtUnited States Court of Federal Claims
DecidedSeptember 10, 2002
DocketNo. 98-167C
StatusPublished
Cited by1 cases

This text of 54 Fed. Cl. 217 (Godwin 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
Godwin v. United States, 54 Fed. Cl. 217, 2002 U.S. Claims LEXIS 290, 2002 WL 31441206 (uscfc 2002).

Opinion

OPINION

SMITH, Senior Judge.

This case was before the court on defendant’s Motion to Dismiss for failure to state a claim upon which relief can be granted, or, in the alternative, for Judgment on the Administrative Record and on plaintiffs Cross Motion for Judgment on the Administrative Record. Plaintiff sought back pay and allowances for his separation from the United States Coast Guard (“Coast Guard”). Plaintiff averred that the Board for Correction of Military Records (“BCMR”) acted in an arbitrary and capricious manner by rejecting his claims that the 1994 Selection Board (“Board”) was illegal and that the failure to include a recent Officer Evaluation Report (“OER”) in plaintiffs personnel file before the Board prejudiced his chances of selection for promotion. Defendant challenged plaintiffs claims.

Oral argument was held on both motions. The court finds that defendant’s actions were not arbitrary, capricious, contrary to law, nor unsupported by substantial evidence. The Coast Guard’s 1994 Board was not illegally constituted, nor was the disputed OER material to plaintiffs non-selection for promotion. For these reasons, the court grants defendant’s Motion to Dismiss for Failure to State a Claim upon which Relief can be Granted and denies plaintiffs Motion for Judgment on the Administrative Record.

FACTS

Plaintiff Charles ‘B. Godwin is a retired Coast Guard lieutenant (0-3). In 1994, he was serving on extended active duty in a Reserve Program Administrator (“RPA”)1 status. Plaintiff was considered but not recommended for promotion to the grade of lieutenant commander (0-4) by the Promotion Year 1993 and 1994 Boards. Plaintiff was mandatorily separated from active duty and retired from the Coast Guard on February 27, 1994, due to his two consecutive non-selections for promotion.

Plaintiff alleges that the 1994 Board was illegally constituted because it failed to include three RPA’s, the number of constituent RPA’s mandated by Coast Guard regulations. In December 1993 the Coast Guard convened the Board to select officers for promotion to lieutenant commander, among other ranks under consideration, for 1994, and RPA captains for active duty continuation. The Board consisted of only two RPA officers. The 1994 Board declined to select plaintiff for promotion to lieutenant commander.

On August 10,1994, plaintiff filed an application with the BCMR for the removal of his non-selection because he claimed that the 1994 Board had been unfairly constituted. The BCMR denied plaintiffs request on July 21, 1995, finding that the Coast Guard had reasonably concluded that only two RPA officers were available to serve on the 1994 Board. Plaintiff sought reconsideration for the BCMR’s decision on December 22, 1995. The BCMR denied reconsideration on January 17, 1997. The BCMR found that plaintiffs arguments would not have caused the BCMR to reach a different result on the question of the 1994 Board’s composition had plaintiff presented the evidence to the BCMR in the first instance.

Plaintiff further avers that he was improperly denied promotion because an OER reflecting his prior six months of performance was unavailable when the 1994 Board convened. Plaintiff claims that he should have received an OER covering the time period between July 1, 1993, and November 30, [219]*2191993, because a lieutenant in his position should have received a semiannual OER. Instead, plaintiff received an OER covering the period beginning on July 1, 1993, and ending on February 27, 1994, when he was involuntarily separated from the Coast Guard following his non-selection for promotion by the 1994 Board. Plaintiff contends that the wrongful omission of an OER covering the six-month period before the 1994 Board met adversely affected his consideration for promotion by failing to provide the 1994 Board with a recent assessment of his service.

Plaintiff contested the timeliness of the OER with the BCMR on June 27 and July 21, 1994. On June 29, 1995, the BCMR denied plaintiffs request to have the disputed OER declared untimely. The BCMR noted that semiannual evaluations may be delayed where officers receive an OER within ninety-two days of their normally scheduled semiannual OER’s. See Coast Guard Personnel Manual, COMDTINST M.1000.61, Article 10-A-3a(1). According to the BCMR, plaintiff was not necessarily entitled to an OER on November 30, 1993, because he ultimately received an OER on February 27,1994. The February 27, 1994, OER fell within ninety-two days of November 30, 1993, when plaintiff would normally have received his semiannual OER. The BCMR concluded that the Coast Guard had logically postponed plaintiffs OER until February 27, 1994, once it became clear that plaintiff would have to leave active service following his non-selection for promotion by the 1994 Board.

Plaintiff sought reconsideration of the June 29, 1995, BCMR decision on July 17, 1995. The BCMR denied plaintiffs request for reconsideration on June 25, 1996. The BCMR denied the request on the grounds that plaintiff had not introduced new evidence that could have resulted in a determination other than that previously announced in the June 1995 BCMR decision and because plaintiff failed to present information that could not have been presented in the original proceeding had plaintiff exercised reasonable diligence.

Plaintiff appeals the BCMR decisions to this court and seeks back pay and allowances that stem from his alleged illegal separation from the Coast Guard. Plaintiff also seeks a correction of his military record to void his February 1994 OER, delete any reference in his record to his non-selection by the Board, award constructive credit for service since his separation, and retire him on the date of eligibility thereafter.

DISCUSSION

I. JURISDICTION

The United States is immune from suit unless Congress specifically waives the government’s sovereign immunity. See United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). The Tucker Act waives the Federal Government’s sovereign immunity and allows plaintiffs to bring suit in the Court of Federal Claims seeking “judgment upon any claim against the United States founded ... upon ... any Act of Congress.” 28 U.S.C. § 1491 (1994 & Supp. 2001). This court has jurisdiction over military pay disputes under the Tucker Act. Id. See also, Sawyer v. United States, 930 F.2d 1577 (Fed.Cir.1991).

This court has Tucker Act jurisdiction over this dispute because plaintiff seeks monetary relief. While this court does not have jurisdiction over claims based upon voluntary military retirements, it does have jurisdiction to review disputes when a service member is “remov[ed] from a position to which he has been duly appointed.” Rice v. United States, 31 Fed.Cl. 156, 163 (1994). Although this court cannot review substantive military promotion decisions, the court can decide if military promotion boards adhered to the rules governing military promotions. See Strickland v. United States, 36 Fed.Cl. 651 (1996); see also Murphy v. United States, 993 F.2d 871 (Fed.Cir.1993).

II.

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Related

Charles B. Godwin v. United States
338 F.3d 1374 (Federal Circuit, 2003)

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54 Fed. Cl. 217, 2002 U.S. Claims LEXIS 290, 2002 WL 31441206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/godwin-v-united-states-uscfc-2002.