McCann v. United States

12 Cl. Ct. 286, 1987 U.S. Claims LEXIS 77
CourtUnited States Court of Claims
DecidedApril 29, 1987
DocketNo. 91-86C
StatusPublished
Cited by2 cases

This text of 12 Cl. Ct. 286 (McCann 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
McCann v. United States, 12 Cl. Ct. 286, 1987 U.S. Claims LEXIS 77 (cc 1987).

Opinion

OPINION

MOODY R. TIDWELL, III, Judge:

This is an action initially brought by Lieutenant Commander James T. McCann for military pay and allowances following his retirement in 1981. Plaintiff also seeks injunctive relief in the form of mandamus. The case was transferred to this court by the United States District Court for the District of Hawaii. Defendant filed a motion to dismiss, or in the alternative, for summary judgment. Plaintiff opposed both motions and moved to amend its complaint and to retransfer the case to the United States District Court for the District of Hawaii.

FACTS

LCDR McCann (ret.) was commissioned as an Ensign in the United States Naval Reserve on October 14, 1960. His career advanced through promotions to Lieuten[287]*287ant, Junior Grade, Lieutenant, and appointment to the Regular Navy. He was commissioned a Lieutenant Commander on July 1, 1969. LCDR McCann was first considered for appointment to Commander by the 1976 fiscal year promotion board, but was non-selected. According to defendant, LCDR McCann was considered for promotion by the 1977 through 1982 fiscal year promotion boards but each year was non-selected. On June 30, 1981, having completed 20 years active service and having been non-selected for promotion at least twice, he was retired pursuant to 10 U.S.C. § 6380(a) (1976).1

The record indicates that LCDR McCann began suffering from severe abdominal pain which required surgery in 1973. From 1979 through 1981 he was on the sick list on 15 separate occasions with abdominal pains. None of the occasions lasted much longer than a week, and several lasted two days or less. As a result of his illness, and unbeknownst to him, plaintiff was evaluated on June 30, 1980 by a medical board, which recommended that he be found not fit for duty. Very shortly after learning of the existence and recommendation of the 1980 medical board, plaintiff asked that the recommendation be amended on the grounds that it was based upon inaccurate and misleading facts. In addition, plaintiff contended that defendant had failed to follow its own regulations vis-a-vis the establishment and proceedings of the board, and the counselling to which plaintiff was entitled. Defendant reports that no action was taken on the recommendation of the June 30,1980 board “in order to allow further evaluation of LCDR McCann’s condition.” Plaintiff appealed the June 30, 1980 Medical Board’s recommendation but the Surgeon General of the Navy declined to amend the recommendation as did the Judge Advocate General of the Navy on behalf of the Secretary of the Navy. However, the record shows that the June 1980 medical board’s recommendation was never placed into plaintiff’s service record. For some unexplained reason, it appears that a second medical board was convened in mid-March, 1981. That board recommended that plaintiff be found unfit for duty and that the case be referred to the Central Physical Evaluation Board (CPEB). On June 11, 1981, the CPEB recommended that plaintiff be found not fit for active duty because of a permanent physical disability.

The record shows that out of respect for plaintiff’s repeated requests to be retired for length of service, and not for disability, he was retired for length of service.2 Defendant stated that after plaintiff’s retirement, the findings and recommendation of the March 6, 1981 medical board were physically placed within his service record.

On July 6, 1981, plaintiff filed an application with the Board for the Correction of Naval Records (BCNR), requesting a finding that he was fit for duty and promotion. The BCNR referred his application to the Naval Disability Evaluation System for an advisory opinion. The latter board unanimously recommended that plaintiff be found “unfit for duty.” Based upon that recommendation and the BCNR’s lack of authority to change records to promote officers, the board denied relief.

JURISDICTION

Defendant argues that this court has no jurisdiction to retroactively promote plaintiff to the rank of Commander because the authority of this court is limited to those instances where the Constitution, laws and [288]*288regulations of executive agencies mandate compensation for damages sustained and proved. United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 954, 47 L.Ed.2d 114 (1976). The United States Court of Appeals for the Federal Circuit in Selman v. United States, 723 F.2d 877 (Fed.Cir.1983), held that “a refusal to promote on any grounds or none, and in the absence of a clear-cut entitlement to the promotion, could not, standing alone, be the basis of a suit in the Claims Court.” Id. at 881. This court does not have general equity powers such as would let it issue an order of mandamus under 28 U.S.C. § 1361, nor does it have declaratory judgment authority. United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969). The Claims Court only obtains jurisdiction to direct restoration to office, placement in an appropriate duty or retirement status, and correction of records incident to a money judgment. Smith v. United States, 228 Ct.Cl. 168, 172-73, 654 F.2d 50, 52-53 (1981).

Plaintiff moved for leave to amend its Complaint in recognition that defendant just might be correct in its jurisdictional arguments. As amended, the Complaint would have the court (1) correct plaintiff’s medical records, (2) find the actions of the June 1980 medical board improper, (3) return plaintiff to active duty with credits for years of service from his July 1, 1981 retirement date, (4) convene another Central Physical Evaluation Board to properly review plaintiff’s corrected medical records and (5) convene a special selection (promotion) board. Plaintiff would withdraw its request for an order directing that plaintiff be promoted to Commander. However, plaintiff continues, “[S]ince plaintiff still maintains that this action is one for injunc-tive relief and/or mandamus, plaintiff wishes to amend the Complaint by withdrawing any claims for monetary relief. In this way, any confusion regarding the claim for relief may be alleviated.”

Plaintiff has been most candid with the court. Plaintiff acknowledges that:

The amended Complaint would not ask for any monetary relief. Therefore no monetary judgment can be granted. Since no monetary judgment can be granted, this Court would lack jurisdiction and should therefore retransfer this case to the [United States] District Court [for the District of Hawaii].

Given plaintiff’s statement above, the sole request before the United States District Court in Hawaii would be for injunctive relief and related findings to compel defendant to convene a medical board and a special selection board to reconsider plaintiff’s records and retirement according to proper prescribed procedures.

Plaintiff was correct when it stated that leave to amend a Complaint shall be freely given when justice so requires. RUSCC 15(a). This rule is to be liberally construed. Hess v. United States,

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Bluebook (online)
12 Cl. Ct. 286, 1987 U.S. Claims LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccann-v-united-states-cc-1987.