Shrader v. United States

38 Fed. Cl. 788, 1997 U.S. Claims LEXIS 198, 1997 WL 590116
CourtUnited States Court of Federal Claims
DecidedSeptember 17, 1997
DocketNo. 94-644C
StatusPublished
Cited by4 cases

This text of 38 Fed. Cl. 788 (Shrader 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
Shrader v. United States, 38 Fed. Cl. 788, 1997 U.S. Claims LEXIS 198, 1997 WL 590116 (uscfc 1997).

Opinion

OPINION

HORN, Judge.

This case comes before the court on the defendant’s motion to dismiss and the parties’ cross-motions for summary judgment. Defendant’s motion to dismiss was filed pursuant to Rules 12(b)(1) and 12(b)(4) of the Rules of the United States Court of Federal Claims (RCFC) and the cross-motions for summary judgment were filed pursuant to RCFC 56.1 for review on the administrative record.

Plaintiff, Rodney L. Shrader, initiated this suit pursuant to 28 U.S.C. § 1491(a) (1994) and the Administrative Procedure Act, 5 U.S.C. § 702 et seq. (1994). Plaintiff sought a declaratory judgment and monetary relief in an effort to overturn the decision of the Air Force Board for Correction of Military Records (AFBCMR) regarding his eligibility for the Voluntary Separation Incentive/Selective Separation Bonus (VSI/SSB) programs on the date of his separation from the United States Air Force. Plaintiff requested that the AFBCMR’s denial of eligibility be declared arbitrary and capricious, an abuse of discretion, and a violation of law. Further, plaintiff asks this court to order the defendant, the United States, acting through the Department of the Air Force, to allow Mr. Shrader to select the VSI or the SSB program, as of the date of his separation from [791]*791the Air Force, and to compensate plaintiff for all benefit payments which would have accrued from that date to the issuance of this court’s order.

In response to plaintiffs complaint, defendant filed a motion to dismiss, or in the alternative, a motion for summary judgment. Defendant contends that this court does not have jurisdiction over plaintiffs claims because the relevant statutes are not money mandating and that the court cannot issue a declaratory judgment in accord with plaintiffs request. Defendant argues that plaintiff has failed to state a claim upon which relief can be granted because the Air Force was exercising the broad discretion accorded to the Secretary of the Air Force when determining the eligibility of personnel for the VSI/SSB programs. Finally, and alternatively, defendant argues that if the court reaches the merits of this case, summary judgment should be granted in favor of the defendant because the AFBCMR’s denial of plaintiffs eligibility was not arbitrary or capricious, was supported by substantial evidence, and was consistent with the law.

Plaintiff responded by submitting a cross-motion for summary judgment. Plaintiff argues that regardless of the Secretary of the Air Force’s discretionary authority, the court has jurisdiction over Mr. Shrader’s claim as a due process challenge to the AFBCMR’s denial of his liberty and property interests. Plaintiff also asserts that he is entitled to VSI/SSB benefits because the Air Force’s “discretionary denial” of Mr. Shrader’s eligibility is inconsistent with the Congressional intent of the applicable statutes. Finally, plaintiff maintains that the court may review the denial of his eligibility because the act “created enforceable substantive rights,” and the denial of the benefits was arbitrary and capricious.

FACTS

According to plaintiffs complaint, in December of 1991, Mr. Shrader was briefed by Air Force Military Personnel Center staff who alerted him that as a result of a draw-down in forces, there would be increasingly limited flying opportunities for majors and lieutenant colonels at the 37th Fighter Wing, Tonopah Test Range in Nevada. In addition, plaintiff learned that command positions within available flying posts “would most likely be limited” to those officers twice selected “below-the-zone.” At that time, Mr. Shrader, who had been in military service since June 1977, had no “below-the-zone” promotions. According to the plaintiff, therefore, he had to confront the prospect of “losing all his aviator skills and certain lack of opportunity in a career he had spent 15 years developing.”

On January 24, 1992, the Secretary of the Air Force announced to all Air Force personnel the availability, purpose, and requirements of the VSI/SSB programs, as follows:

1. THE PURPOSE OF THIS MESSAGE IS TO ANNOUNCE THE AIR FORCE VSI/SSB PROGRAMS....
2. BY 31 DEC 92. WE NEED OVER 21,000 ENLISTED AND 4.800 OFFICER LOSSES ABOVE AND BEYOND THOSE WE WOULD EXPECT TO GET THROUGH ONGOING LOSS PROGRAMS. BECAUSE OF THEIR CONCERN OVER THE EFFECT OF STRENGTH REDUCTIONS ON THE MEN AND WOMEN IN UNIFORM, CONGRESS AUTHORIZED VSI/SSB. THEY WANTED TO GIVE A REASONABLE, FAIR CHOICE TO PERSONNEL WHO OTHERWISE WOULD HAVE NO OPTION OTHER THAN TO FACE SELECTION FOR INVOLUNTARY SEPARATION. WE ARE INTEGRATING OUR VSI/SSB OFFER INTO OUR BALANCED APPROACH TO THE DRAWDOWN.
3. BASIC ELIGIBILITY CRITERIA:
A THE FOLLOWING' CRITERIA ESTABLISHED BY LAW. MUST BE MET BY EACH MEMBER WITHIN THE ELIGIBLE POPULATIONS....
(2) ALL FIELD GRADE LINE OFFICERS (MAJOR — LIEUTENANT COLONEL), INCLUDING MAJOR SELECTS, EXCEPT OFFICERS WHO WERE SELECTED/PROMOTED BELOW-THE-PROMOTION-ZONE (BPZ) AND NOT [792]*792SUBSEQUENTLY DEFERRED FOR PROMOTION TO A HIGHER GRADE.
if! * *
D. EXCLUDED FROM CONSIDERATION:
(1) MEMBERS WHO HAVE APPLIED FOR OR RECEIVED AN APPROVED VOLUNTARY DATE OF SEPARATION IN FY92/93 (29 SEP 93 OR EARLIER). IF PENDING APPLICATION IS DISAPPROVED, MEMBER BECOMES ELIGIBLE. REQUESTS FOR WITHDRAWAL OF PENDING APPLICATIONS OR APPROVED VOLUNTARY SEPARATIONS TO ALLOW MEMBERS TO BE ELIGIBLE FOR THESE PROGRAMS WILL NOT BE APPROVED. IT IS NOT THE INTENT OF VSI/SSB TO COMPENSATE THOSE WHO HAVE PREVIOUSLY SIGNALED THEIR INTENT TO SEPARATE.

HQ USAF/DP Message, 240830Z JAN 92, SUBJECT: “FY 92-93 Voluntary Separation Incentive (VSI)/Special Separation Benefit (SSB) Programs.”

Plaintiff alleges that on February 4, 1992, Air Force separations personnel from Nellis Air Force Base “indicated” to Mr. Shrader that he was eligible for the VSI/SSB programs. Accordingly, he decided to apply. Mr. Shrader further alleges he was also informed by the Air Force that selection for “below-the-zone” promotion did not impact a VSI/SSB application. Moreover, plaintiff emphasizes that he acquired this information because he “specifically asked if [he] would be eligible even if [he] were selected for Lt. Col. from Below the Zone.”

Prior to February 17, 1992, plaintiff was selected for a promotion “below-the-zone” to lieutenant colonel.1 Following this selection, on February 18, 1992, plaintiff submitted his application for the VSI program stating that “[s]hould I not be accepted for this program, I still want to separate on my request.” The application was returned on March 3, 1992, following notice to plaintiff that his selection for “below-the-zone” promotion made him ineligible for the VSI program. Notwithstanding his inability to qualify for the VSI program, Mr. Shrader elected to voluntarily separate from the Air Force. He was granted an honorable discharge, effective on September 1,1992.

On April 5, 1993, plaintiff appealed to the AFBCMR to review “the injustice of policy” and “discriminatory practices.” On July 30, 1993, the AFBCMR forwarded an advisory opinion to plaintiff which stated:

4.

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Bluebook (online)
38 Fed. Cl. 788, 1997 U.S. Claims LEXIS 198, 1997 WL 590116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shrader-v-united-states-uscfc-1997.