Michienzi

207 Ct. Cl. 1033, 1975 U.S. Ct. Cl. LEXIS 146, 1975 WL 6643

• Court: United States Court of Claims
• Decided: October 3, 1975
• Docket: No. 108-74
• Status: Published

Opinion

On October 3, 1975 the court issued the following order:

Before Nichols, Judge, Presiding, Durfee, Senior Judge, and Kashiwa, Judge.

“This case is before the court on plaintiff’s ‘motion for rehearing and reconsideration to alter or amend a judgment’ and defendant’s opposition thereto. Under the heading ‘Conclusion’ plaintiff makes statements which we treat as a request for rehearing en banc rather than by the present panel.

“The request for rehearing en bane has been considered by all the active judges of the court, and a majority not having voted in favor of such rehearing, the motion in that aspect is denied.

“The previous decision, ante at 484, may be summarized as resting on two propositions, that plaintiff failed to show that his expectations of promotion ever left the discretionary zone and became a legally protected right, or that the timing of the official actions he complained about were such that they had the pecuniary consequences on which our jurisdiction must rely, in view of plaintiff’s voluntary retirement while his case was still pending in the Department of Defense. The Board for Correction of Military Records was not shown to be arbitrary or capricious in failing to see in plaintiff’s case either ‘error’ or ‘injustice’.

“Plaintiff’s motion supplies an item of new information, i.e., that his promotion recommendation of September 4 or October 23, 1970, did not lapse, but remained in effect until he was removed from that recommended promotion list by a Standby Advisory Board at some still unstated date after September 6,1972. Defendant does not deny these statements so we assume they are true for purposes of this decision, though we point out that even supplemented as above, the record is woefully deficient in the kind of documentation and chronology of the official actions complained of which we would need before we could uphold a claim of this kind. We will correct our previous opinion, but it does not in any way undermine the reasons for our decision. It neither establishes that plaintiff had a legally protected right to promotion at any relevant time, nor that any official actions complained of, if wrongful, had the pecuniary impact on which our jurisdiction depends.

“Accordingly, upon consideration of the motion and defendant’s opposition thereto, the said motion is denied. The previous decision of July 11, 1975, is amended as follows [these amendments have been incorporated in the report of the decision, ante] :

Slip op., p. 6, line 8. — Delete sentence commencing ‘At some point’ to end of paragraph, and substitute:

The September 4, 1970, selection published October 23,1970, we believe was only advisory. Weiss v. United States, 187 Ct. Cl. 1, 408 F. 2d 416 (1969).

Slip op., p. 6, last line on page. Delete sentence beginning ‘The alleged outrages’ and the following sentence on p. 7, which ends with the words: ‘DASEB considered the case.’

No substitution.”