United States Court of Appeals for the Federal Circuit
02-5082
FRANK E. FISHER,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
J. Byron Holcomb, of Bainbridge Island, Washington, argued for plaintiff-appellant.
Monica J. Palko, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for defendant-appellee. With
her on the brief were David M. Cohen, Director, and James M. Kinsella, Assistant Director.
Of counsel on the brief was Captain Andrew M. Leblanc, United States Air Force, of
Arlington, Virginia. Of counsel was Virginia G. Farrier, Attorney, Commercial Litigation
Branch.
Appealed from: United States Court of Federal Claims
Senior Judge Eric G. Bruggink
United States Court of Appeals for the Federal Circuit
02-5082
FRANK E. FISHER,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
DECIDED: March 9, 2005
__________________________
Before CLEVENGER, Circuit Judge, PLAGER, Senior Circuit Judge, and DYK, Circuit
Judge.
Opinion for the court filed by Senior Circuit Judge PLAGER. Additional views filed by
Senior Circuit Judge PLAGER, in which Circuit Judges NEWMAN and GAJARSA join.1
PLAGER, Senior Circuit Judge.
This case, brought under the United States Court of Federal Claims’ Tucker Act
jurisdiction, raises three separate though related issues. First, what must a plaintiff
establish regarding the existence of a money-mandating law source in order for the
Court of Federal Claims to have subject matter jurisdiction over the case under the
Tucker Act? Second, assuming the trial court takes jurisdiction and addresses the
1
The earlier opinion in this case, reported at 364 F.3d 1372 (Fed. Cir.
2004), is withdrawn, and this opinion substituted therefore. A portion of this opinion has
been considered and decided by the court en banc. See Order in this case issued this
date.
merits of the cause, what are the consequences of a failure to prove the elements of the
cause of action because the facts of the case do not bring it within the alleged source?
And third, even assuming the cause of action is otherwise established, are there
matters that are nonjusticiable because of their unique military implications?
The plaintiff in this case, Dr. Frank E. Fisher, a physician retired from the Air
Force, filed a complaint in the Court of Federal Claims alleging that while he was on
active duty he should have been found unfit for continued service because of a physical
disability, and therefore under 10 U.S.C. § 1201 he should have been retired for
disability, with appropriate retirement pay. The trial court at the behest of the
Government dismissed Dr. Fisher’s claim for lack of jurisdiction. The trial court
indicated that, even if the court had jurisdiction, the matter was exclusively one for
military determination, and thus nonjusticiable. Appeal was timely taken.
We conclude that, in light of the statutes on which the cause was based and the
facts alleged, the court erred in dismissing the case. We further conclude that, despite
the military origins, under controlling precedent the issue is justiciable. The case is
remanded to the trial court for further proceedings in accordance with this opinion.
I. BACKGROUND
Dr. Frank E. Fisher served as a physician on active duty in the United States Air
Force from 1989 to 1996. Thereafter, he served in the United States Air Force
Reserves until September 7, 2001, when he was discharged for physical
disqualification. While on active duty, Dr. Fisher appeared before three Medical
Evaluation Boards (MEBs). The first MEB evaluation took place in May 1994 for Dr.
02-5082 2
Fisher’s complaint of “persistent left shoulder pain.” The MEB referred Dr. Fisher’s case
to an Informal Physical Evaluation Board (IPEB), which determined that his condition
did not make him unfit for service. Accordingly, Dr. Fisher continued on active duty.
Dr. Fisher went before a second MEB in September 1995 for “chronic left wrist
and hand pain.” The MEB again referred the case to an IPEB, which found in October
1995 that Dr. Fisher was unfit for duty and recommended that he be discharged with
severance pay and given a 10 percent disability rating. Dr. Fisher disagreed with the
IPEB recommendation, alleging that the 10 percent disability rating was too low, and he
appealed to a Formal Physical Evaluation Board (FPEB). The FPEB found in
November 1995 that Dr. Fisher was “fully capable of performing all of his assigned
duties and was doing so routinely.” Accordingly, the FPEB found Dr. Fisher fit for duty
and recommended that he be returned to duty. Dr. Fisher did not further challenge this
recommendation at the time and returned to duty.
At about the same time that the FPEB was considering Dr. Fisher’s case, Dr.
Fisher was diagnosed with seronegative rheumatoid arthritis. Apparently that diagnosis
was not considered by the FPEB during its deliberations.
In June 1996 Dr. Fisher went before a third MEB, which found him fit for
continued military service. Dr. Fisher alleges that the third MEB was convened
specifically to consider his diagnosis of seronegative rheumatoid arthritis; however,
there is no documentation in the record regarding this third MEB. The MEB did not refer
Dr. Fisher to an IPEB, and Dr. Fisher did not challenge this MEB’s findings.
At the end of 1996, after completion of his active duty service commitment, Dr.
Fisher was released from active duty in the normal course and became a member of the
02-5082 3
Air Force Reserve.2 During the time he was serving in the Reserves, he applied to the
Department of Veterans Affairs (VA) for disability compensation. In March 1997 the VA
awarded him a 40 percent service-connected disability rating for rheumatoid arthritis
and a 20 percent rating for degenerative joint disease, which, using a combined rating
table, established an overall rating of 50 percent. Dr. Fisher later was awarded an
additional 10 percent disability rating for depression, which was increased to 30 percent
in October 1997.
In December 1999, Dr. Fisher applied to the Air Force Board for Correction of
Military Records (AFBCMR), alleging that the various medical boards before which he
appeared should not have found him fit for duty and should have granted him a medical
discharge. He requested that his records be corrected to show a medical disability
based on rheumatoid arthritis and that he be discharged with a medical disability as of
December 31, 1996, his last day of active duty. The AFBCMR denied Dr. Fisher’s
claim, determining that he had not demonstrated “the existence of probable material
error or injustice.”
Following the adverse decision of the AFBCMR, Dr. Fisher filed suit in the Court
of Federal Claims. His complaint alleged that the actions of the Secretary of the Air
Force and the AFBCMR were contrary to Air Force statutes, rules, and regulations. He
asked the court to reinstate him to active duty, place him in disability retirement status
effective January 1, 1997, award him medical retirement back pay from that date, and
order the correction of his records to reflect such actions.
2
The Government does not argue that Dr. Fisher, by accepting transfer
from active duty to the Reserves, waived his right to a military disability retirement.
02-5082 4
Dr. Fisher’s complaint asserted that jurisdiction in the Court of Federal Claims
was founded upon 28 U.S.C. § 1491 (the Tucker Act), 10 U.S.C. § 8011 et seq. (Air
Force organizational statutes), 10 U.S.C. § 1201 et seq. (military disability retirement
statutes), 10 U.S.C. § 1552 (military correction board enabling statute), and Air Force
rules and regulations relating to medical standards and disability retirement. The
Government filed a motion to dismiss for lack of jurisdiction.
After oral argument on the issue, the trial court granted the Government’s motion.
The trial court held that Dr. Fisher’s claim was outside the scope of the Tucker Act
because any monetary entitlement was dependent upon a declaratory judgment, which
the court lacked authority to grant. Fisher v. United States, No. 00-740C (Fed. Cl. Jan.
7, 2002).
The trial court, citing Rice v. United States, 31 Fed. Cl. 156 (1994), aff’d, 48 F.3d
1236 (Fed. Cir. 1995) (summary affirmance), noted that in Rice a challenge to a
determination regarding fitness for duty was deemed nonjusticiable even if the court
possessed subject matter jurisdiction. Although the trial court in this case favorably
cited that alternative holding of Rice, the court did not decide the case on that ground,
stating that, because the court did not have jurisdiction under the Tucker Act to hear the
case, it was unnecessary to address the Government’s alternative argument that Dr.
Fisher’s claim was not justiciable. The trial court dismissed the complaint, and Dr.
Fisher filed a timely appeal with this court. We have jurisdiction over the appeal
pursuant to 28 U.S.C. § 1295(a)(3).
II. DISCUSSION
A. Tucker Act Jurisdiction
02-5082 5
1.3
Separating the question of a federal court’s subject matter jurisdiction over a
cause from the question of what a plaintiff must prove in order to prevail in the cause is,
in many areas of the law, not a difficult matter: a specific statute sets the court’s
jurisdictional parameters; a separate statute or regulation or common law rule
establishes the right that allegedly has been breached. In Tucker Act jurisprudence,
however, this neat division between jurisdiction and merits has not proved to be so neat.
In these cases, involving suits against the United States for money damages, the
question of the court’s jurisdictional grant blends with the merits of the claim. This
mixture has been a source of confusion for litigants and a struggle for courts. The
Government’s arguments, on which it prevailed at trial, and the trial court’s view of the
matter, require that we address this issue.
It is hornbook law that the Tucker Act (of which there are several versions4—it is
the Big Tucker Act with which we are here concerned) does two things: (1) it confers
jurisdiction upon the Court of Federal Claims over the specified categories of actions
brought against the United States, and (2) it waives the Government’s sovereign
immunity for those actions. See Mitchell v. United States, 463 U.S. 206, 212-18 (1983)
(Mitchell II); United States v. Testan, 424 U.S. 392, 397-98 (1976). The causes to
3
In this section we consider and overrule prior precedent. Since that can
only be done by the court en banc, see South Corp. v. United States, 690 F.2d 1368,
1370 n.2 (Fed. Cir. 1982) (en banc), this section 1. has been considered and decided by
an en banc court formed of MICHEL, Chief Judge, NEWMAN, MAYER, Circuit Judges,
PLAGER, Senior Circuit Judge, LOURIE, CLEVENGER, RADER, SCHALL, BRYSON,
GAJARSA, LINN, DYK, and PROST, Circuit Judges.
4
There are the (Big) Tucker Act, 28 U.S.C. § 1491; the Little Tucker Act, 28
U.S.C. § 1346(a)(2); and the Indian Tucker Act, 28 U.S.C. § 1505.
02-5082 6
which the Act applies are claims for money damages against the United States
“founded either upon the Constitution, or any Act of Congress or any regulation of an
executive department, or upon any express or implied contract with the United States,
or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C.
§ 1491(a)(1).
The Tucker Act itself does not create a substantive cause of action; in order to
come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must
identify a separate source of substantive law that creates the right to money damages.
Mitchell II, 463 U.S. at 216; Testan, 424 U.S. at 398. In the parlance of Tucker Act
cases, that source must be “money-mandating.” See Mitchell II, 463 U.S. at 217;
Testan, 424 U.S. at 398.
Under the existing precedent of this court, the issue of whether a source is
money-mandating is addressed in a two-step process. See Gollehon Farming v. United
States, 207 F.3d 1373, 1378-80 (Fed. Cir. 2000) (citing Banks v. Garrett, 901 F.2d
1084, 1087-88 (Fed. Cir. 1990)). As a first step, and for purposes of satisfying the
jurisdictional requirement that a money-mandating statute or regulation is before the
court, the plaintiff need only make a non-frivolous allegation that the statute or
regulation may be interpreted as money-mandating. The non-frivolous allegation
satisfies the jurisdictional requirement. If, as a second step, the issue of jurisdiction is
later pressed and it is subsequently decided that the statute or regulation is not money-
mandating, then the case is dismissed for failure to state a claim upon which relief can
be granted. Gollehon, 207 F.3d at 1379.
02-5082 7
To the extent that Gollehon relied on Banks as precedent for such a two-step
inquiry into the issue of whether a particular statute is money-mandating first for
jurisdictional and later for merits purposes, Gollehon misplaced its reliance on Banks.
In Banks, the issue was not whether the alleged statutes authorized monetary payment
to persons who could establish the right to recovery under those statutes. The question
was whether on the facts Captain Banks’ claim fell within the terms of the statutes. On
appeal we determined that the statutes alleged did not apply to his situation, and thus
he failed to establish entitlement to back pay on the merits of his claim. Consequently,
we held that the disposition of his case was properly a dismissal under Rule 12(b)(6) for
failure to state a claim on which relief could be granted, rather than a dismissal for lack
of jurisdiction, and as such was an adjudication on the merits. Banks is not support for
a two-step inquiry into whether a statute or regulation is money-mandating; it remains
good law on the issue before it.
Furthermore, nothing in Supreme Court opinions that address the Tucker Act
suggests that a court should entertain and decide the jurisdictional and merits test in
other than a single step. The single step would be one in which the trial court
determines both the question of whether the statute provides the predicate for its
jurisdiction, and lays to rest for purposes of the case before it the question of whether
the statute on its merits provides a money-mandating remedy. (The Banks question,
whether the facts of the case support a remedy, of course remains as a separate
question). Because we read the Supreme Court cases to have approved a single test
for deciding the money-mandating issue, we think the two-step process of Gollehon
must be discarded. Gollehon is thus overruled.
02-5082 8
When a complaint is filed alleging a Tucker Act claim based on a Constitutional
provision, statute, or regulation, see 28 U.S.C. § 1491(a)(1), the trial court at the outset
shall determine, either in response to a motion by the Government or sua sponte (the
court is always responsible for its own jurisdiction), whether the Constitutional provision,
statute, or regulation is one that is money-mandating.
If the court’s conclusion is that the Constitutional provision, statute, or regulation
meets the money-mandating test, the court shall declare that it has jurisdiction over the
cause, and shall then proceed with the case in the normal course. For purposes of the
case before the trial court, the determination that the source is money-mandating shall
be determinative both as to the question of the court’s jurisdiction and thereafter as to
the question of whether, on the merits, plaintiff has a money-mandating source on which
to base his cause of action.
If the court’s conclusion is that the source as alleged and pleaded is not money-
mandating, the court shall so declare, and shall dismiss the cause for lack of
jurisdiction, a Rule 12(b)(1) dismissal—the absence of a money-mandating source
being fatal to the court’s jurisdiction under the Tucker Act.
The trial court’s determination regarding the money-mandating character of the
statute at issue is of course subject to appellate review as a question of law.
2.
With this background we can address the first issue: what must a plaintiff—in this
case Dr. Fisher—establish regarding a money-mandating source in order for the Court
of Federal Claims to have subject matter jurisdiction over the case under the Tucker
Act. For decades the Supreme Court has applied what is known as the Mitchell test: a
02-5082 9
statute or regulation is money-mandating for jurisdictional purposes if it “can fairly be
interpreted as mandating compensation for damages sustained as a result of the breach
of the duties [it] impose[s].” Mitchell II, 463 U.S. at 217. Recently, in United States v.
White Mountain Apache Tribe, 537 U.S. 465 (2003), the Supreme Court restated the
test for determination of whether a statute is money-mandating for Tucker Act
jurisdictional purposes. After repeating the test from Mitchell II, the Court stated that:
This “fair interpretation” rule demands a showing demonstrably
lower than the standard for the initial waiver of sovereign immunity . . . . It
is enough, then, that a statute creating a Tucker Act right be reasonably
amenable to the reading that it mandates a right of recovery in damages.
While the premise to a Tucker Act claim will not be “lightly inferred,” . . . a
fair inference will do.
White Mountain, 537 U.S. at 472-73 (citation omitted; emphasis added). In dissent, four
justices stated that in reaching their result (the statute was found money mandating) the
majority established a new and different test for jurisdiction. The dissent described the
majority’s test as “a newly devised approach,” id. at 482, and stated: “The Court today
fashions a new test to determine whether Congress has conferred a substantive right
enforceable against the United States in a suit for money damages.” Id. at 487.
However, in a concurring opinion, id. at 479, two justices noted that the majority
opinion in White Mountain was not inconsistent with the opinion decided that same day
in United States v. Navajo Nation, 537 U.S. 488 (2003). In Navajo Nation the majority
spoke only in terms of the established “fairly be interpreted” test, citing Mitchell II. No
mention was made of the White Mountain test. (The dissent in Navajo Nation quarreled
about the import of the facts, not the test to be applied.)
Both White Mountain and Navajo Nation were concerned with whether the United
States owed fiduciary duties to Indian tribes under the laws relevant to the cases. In
02-5082 10
White Mountain a duty was found to exist; in Navajo Nation it was not. In White
Mountain, as noted, a reformulated test was applied.
Whether White Mountain alters the Mitchell test, as suggested by the dissent in
White Mountain, and whether the new test is less stringent in some respects or is the
same, as suggested by the concurrence, is less than clear. Future opinions by the
Supreme Court may clarify all this. For purposes of the case before us, however, this
much is clear—under either the new or the old formulations Dr. Fisher has stated a
claim that gives the Court of Federal Claims jurisdiction over his case.
Dr. Fisher alleges that 10 U.S.C. § 1201 provides the basis for his Tucker Act
claim. Section 1201 enables the Secretary of a military branch to authorize disability
retirement pay for service members on active duty. Subsection (a) provides in relevant
part:
Upon a determination by the Secretary concerned that a member
described in subsection (c) [i.e., on active duty] is unfit to perform the
duties of the member’s office, grade, rank, or rating because of physical
disability incurred while entitled to basic pay . . ., the Secretary may retire
the member, with retired pay . . ., if the Secretary also makes the
determinations with respect to the member and that disability specified in
subsection (b).
10 U.S.C. § 1201(a). Subsection (b) requires the Secretary to make certain
determinations, including that “the disability is of a permanent nature and stable,” and
that “the disability is not the result of the member’s intentional misconduct or willful
neglect.”
In this case, Dr. Fisher has little difficulty establishing that § 1201 is understood
as money-mandating. Section 1201 was the statute alleged to be money-mandating in
Sawyer v. United States, 930 F.2d 1577 (Fed. Cir. 1991). Despite the presence of the
02-5082 11
word “may” in the statute, in Sawyer we determined that the Secretary has no discretion
whether to pay out retirement funds once a disability is found qualifying. Id. at 1580.
Thus, we held that the statute is money-mandating because when the requirements of
the statute are met—i.e., when the Secretary determines that a service member is unfit
for duty because of a physical disability, and that disability is permanent and stable and
is not the result of the member’s intentional misconduct or willful neglect—the member
is entitled to compensation. See id.
The Government here argues that Sawyer should be understood differently.
According to the Government, § 1201 is money-mandating only for service members
who qualify for benefits under the statute, i.e., those members who have been found by
the Secretary to be unfit for duty. But that understanding turns the law on its head—
according to the Government the only persons entitled to judicial relief are those who do
not need it because they were awarded disability status; those who were denied that
status cannot get relief because they were denied what they sought.
Such a perverse understanding of Congress’s purpose cannot be the law; it is
inconsistent with the literal language of the statute and with our construction of the
statute in Sawyer. The fact that the statute imposes requirements for the payment of
money does not mean that only claimants who have been determined by a Government
official to meet those requirements have a right to the money the statute provides. It is
the statute, not the Government official, that provides for the payment. If the
Government official’s determinations under the statute are in error, the court is there to
correct the matter, and to have the proper determinations made.
02-5082 12
In the case before us, Dr. Fisher contends that the Secretary’s determination that
he was fit for duty was arbitrary and capricious and contrary to law. He wants the
money that would have been his due had he been discharged in the manner to which
he claims he was entitled, and he wants the necessary steps taken to position himself
for that result—i.e., reinstatement, etc. That is a classic Tucker Act suit for money and
the related remedies the trial court is authorized to grant.5
Furthermore, it is not, as the Government also insists, a declaratory judgment
over which the trial court lacks jurisdiction. If Dr. Fisher were to succeed on his claim
that the Secretary’s decision was wrong and should be reversed, he would be entitled to
disability retirement pay under § 1201, and whatever procedural remedies were
necessary to achieve that result. The Court of Federal Claims is fully empowered to
grant such remedies. Even if it can be said that the complaint was inartfully drafted, that
does not change the basic thrust of the cause.
The resolution of the first issue, then, is that Dr. Fisher’s well-pleaded complaint,
clearly grounded on a statute that mandates compensation, gives the Court of Federal
Claims subject-matter jurisdiction to address the case on the merits.
The resolution of the second issue—what are the consequences, once the court
has taken jurisdiction, of plaintiff failing to establish all elements of the cause of action—
follows from the answer to the first, though admittedly the answer has not always been
stated in a consistent fashion. Assuming that the Court of Federal Claims has taken
jurisdiction over the cause as a result of the initial determination that plaintiff’s cause
rests on a money-mandating source, the consequence of a ruling by the court on the
5
See 28 U.S.C. § 1491(a)(2).
02-5082 13
merits, that plaintiff’s case does not fit within the scope of the source, is simply this:
plaintiff loses on the merits for failing to state a claim on which relief can be granted.
Certainly it does not follow that, after deciding the case on the merits, the court
loses jurisdiction because plaintiff loses the case. Our cases explain that the law is to
the contrary. Banks is one example. In Palmer v. United States, 168 F.3d 1310 (Fed.
Cir. 1999), we held that a claim by a reserve officer that he had been improperly
removed from his billet, thus denying him opportunities for pay, stated a cause of action
under the cited pay statute, and thus conferred jurisdiction under the Tucker Act on the
Court of Federal Claims. Id. at 1313. The ultimate conclusion in the case was that the
money-mandating statute, applied to the facts proven, did not afford the remedy
claimed. That was held to be a failure on the plaintiff’s part to state a claim on which
relief could be granted, and not a jurisdictional defect. We noted that, when the issue is
raised by motion, the proper motion is under Federal Rule of Civil Procedure 12(b)(6), a
dismissal for failure to state a claim on which relief can be granted—what the Court of
Federal Claims formerly denominated an RCFC 12(b)(4) motion—and not a Rule
12(b)(1) dismissal for lack of jurisdiction.
02-5082 14
B. Justiciability
1.
The third issue posed is whether, even assuming the cause of action is otherwise
established, are there matters that are nonjusticiable because of their unique military
implications? Justiciability has both constitutional and prudential dimensions, and
encompasses a number of doctrines under which courts will decline to hear and decide
a cause. Though justiciability has no precise definition or scope, doctrines of standing,
mootness, ripeness, and political question are within its ambit. See generally 15 James
Wm. Moore et al., Federal Practice § 101.01 (3d ed. 2003); 13 Charles Alan Wright et
al., Federal Practice and Procedure § 3529 (2d ed. Supp. 2003).
One aspect of justiciability relates to the issue of whether deference in a given
case should be given by the judiciary to the particular authority and competence of
another branch of government.6 This can arise under basic separation of powers
concepts or because Congress has dictated that such deference be given. When
issues of Federal military authority are brought to the courts, the constitutional construct
may dictate that, in limited circumstances, a particular controversy may be such that a
decision maker other than the judiciary should have the final say. In such cases the
authority of the Federal courts to protect individual rights and to decide controversies—
“[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this
6
When such deference is accorded, the matter is sometimes referred to as
a nonjusticiable “political question” (see the authorities cited in the text), though that
term can be misunderstood since its more common usage is with regard to electoral
politics.
02-5082 15
Constitution, [and] the Laws of the United States . . .”7—must be balanced against the
authority of other constitutional decision makers.
An example is the Executive power vested in the President under Article II, and
in particular the President’s duties as Commander in Chief of the Army and Navy of the
United States.8 When the question is one of physical or mental fitness for service in the
military, courts are loath to interfere with decisions made by the President and his
designated agents. It is the President who bears the responsibility for protecting the
nation from harm, and the President has broad discretion in the selection of whom he
chooses to perform this critical duty. This deference to Executive authority does not
extend to ignoring basic due process considerations, however. When there is a
question of whether reasonable process has been followed, and whether the decision
maker has complied with established procedures, courts will intervene, though only to
ensure that the decision is made in the proper manner.
This understanding of the law in military personnel cases by our court is well
established. See, e.g., Murphy v. United States, 993 F.2d 871, 874 (Fed. Cir. 1993)
(“[T]he merits of the Air Force’s decision to release [an officer] from active duty are
beyond judicial reach.”); Sargisson v. United States, 913 F.2d 918 (Fed. Cir. 1990)
(absent procedural error, the decision to release surplus officers and who should be
released was a decision for the military to make); Voge v. United States, 844 F.2d 776
(Fed. Cir. 1988) (statute provided for special pay to medical officers; the decision
whether to terminate the award was for the military and nonjusticiable); Heisig v. United
7
U.S. Const. art. III, § 2, cl. 1.
8
U.S. Const. art. II, § 2, cl. 1. The reference in the Constitution to the Army
and Navy is understood to include the Air Force and other units of the military services.
02-5082 16
States, 719 F.2d 1153, 1156 (Fed. Cir. 1983) (“[R]esponsibility for determining who is fit
or unfit to serve in the armed services is not a judicial province.”).
Though the question of fitness to serve may be nonjusticiable in various contexts,
we have consistently noted that a challenge to a particular procedure followed by the
military in rendering a decision may present a justiciable issue. Adkins v. United States,
68 F.3d 1317, 1323 (Fed. Cir. 1995). Even when Congress has given the military
discretion in conducting its affairs, the military is bound to follow its own procedural
regulations should it choose to promulgate them. Murphy, 993 F.2d at 873 (citing
Sargisson, 913 F.2d at 921). A court may decide whether the military has complied with
procedures set forth in its own regulations because those procedures by their nature
limit the military’s discretion. Id. at 873. Such a case presents a justiciable controversy
because the ‘tests and standards’ against which the court measures the military’s
conduct are inherent in the requirements of the applicable regulation itself. Adkins, 68
F.3d at 1323.
In one sense, the question before us is Dr. Fisher’s fitness for continued service
as a medical officer. At the time Dr. Fisher was released from active duty, the Air Force,
following established procedures, determined that Dr. Fisher remained fit for duty, and
discharged him without designating him as disabled. Thus the question could be
considered to be his fitness for duty, and so considered could be understood as a
question that is nonjusticiable.
In another sense, however, the question is not whether Dr. Fisher remains fit for
duty as a military officer. It is clear that the Air Force does not wish to retain him in
active service, and Dr. Fisher has made clear that his request for reinstatement is only
02-5082 17
for the purpose of positioning himself for obtaining a disability retirement. Rather the
question is, once a military serviceperson is released from duty, are the terms and
conditions of his release subject to judicial review? Specifically, can courts review the
question of whether a former serviceman was entitled under the law to disability pay at
the time of release from duty?
As previously noted, the trial court in the case before us decided the matter on
jurisdictional grounds, and noted the nonjusticiability issue only in passing. In their initial
briefs on appeal, both Dr. Fisher and the Government focused primarily on the
jurisdictional question, though both parties did address the justiciability question as well.
The Government argued that fitness determinations by statute are allocated to
the discretion of the Secretary (of the Air Force), and that whether to retire a service
member and award disability retirement pay upon any finding of unfitness is also left to
the discretion of the Secretary. Further, argued the Government, there are no
standards by which a court could review such findings.
Dr. Fisher responded that the Secretary’s discretion is limited by the Air Force’s
own rules and regulations, which themselves set forth ‘tests and standards’ against
which the Secretary’s discretionary conduct may be measured. Dr. Fisher specifically
cited Air Force Instruction (AFI) 48-123, Medical Examination and Standards,
Attachment 2 (Medical Standards for Continued Military Service) (Nov. 14, 2000). In his
complaint Dr. Fisher alleged that the Secretary violated this instruction by finding that
his diagnosis of seronegative rheumatoid arthritis did not disqualify him from continued
service.
02-5082 18
2.
In the course of considering the appeal in this case, and having decided that the
trial court erred in dismissing on jurisdictional grounds, we examined with some care the
issue of justiciability. Our review revealed a line of cases decided by our predecessor
court, the Court of Claims, not cited by either party, in which that court in military
disability discharge cases did not limit its review, as was generally the case in military
matters if any review was allowed, to the question of whether proper procedure was
followed. Instead, the court reviewed the merits of the military’s decision, albeit
applying a deferential standard of review.
The line of cases begins with Towell v. United States, 150 Ct. Cl. 422 (1960), in
which a former officer in the U.S. Army with a history of active duty medical problems
and hospitalization was released from active service. The stated reason was not
physical disability, and he was deemed not entitled to a disability retirement.
Subsequent review boards, up to and including the Army Board for Correction of Military
Records, reaffirmed that his physical disabilities at the time of discharge were not such
as to entitle him to disability retirement pay.
When Towell brought his complaint in the Court of Claims, the only official action
by the Army not barred by the statute of limitations was the decision of the Correction
Board.9 The Court of Claims reviewed the record before that Board, “in order to
9
But see Martinez v. United States, 333 F.3d 1295 (Fed. Cir. 2003) (en
banc) (Plager, J., dissenting) (en banc court holding that claim accrues on date of
discharge and Corrections Board decision does not create a second cause of action for
statute of limitations purposes).
02-5082 19
determine whether its conclusions were supported by substantial evidence.” Id. at 434.
The court concluded that “[w]e find nothing in the record which permits us to say that
the Army medical judgment was wrong and as a consequence that the action of the
Correction board was erroneous.” Id. at 435.
Furlong v. United States, 153 Ct. Cl. 557 (1961), is similar. When plaintiff sued
for disability benefits the Army denied him, the Court of Claims undertook a review of
his records, and concluded that “[w]e do not think that plaintiff has sustained his burden
of showing by cogent and clearly convincing evidence that the Retiring Board was
arbitrary or capricious in finding that [at the time of discharge] he was not incapacitated
for active service.” Id. at 563.
Ward v. United States, 178 Ct. Cl. 210 (1967), was the first of these cases in
which the Government lost. Despite having had his right kidney surgically removed
while on active duty, plaintiff was found physically qualified for release from active duty
with no physical defects; that finding was affirmed by the Navy’s review boards. After
reviewing the record, the Court of Claims, citing to Towell and Furlong, concluded that
“[o]n the whole record, it is found that plaintiff was not physically fit for active duty at sea
or on foreign service at the time of his release to inactive duty and that the decision of
the Board for the Correction of Naval Records to the contrary is not supported by
substantial evidence and is arbitrary.” Id. at 219.
Jordan v. United States, 205 Ct. Cl. 65 (1974), followed the Ward model,
reversing the Army’s refusal to grant disability retirement pay to an Army sergeant who,
at the time of his discharge, was deemed to be physically fit for duty. In a lengthy
decision, the Court of Claims reviewed the medical history plaintiff presented and the
02-5082 20
records before the Army review boards, including the qualifications of the various
doctors. The court concluded:
Even though defendant’s evidence in the instant case, considered of and
by itself, might support the administrative decision by the Army to
discharge plaintiff as physically fit, we find, as hereinafter discussed, that
there is “opposing evidence [principally, plaintiff’s medical record with the
VA] so substantial in character” as to detract from the weight of the
evidence in support of the Army discharge, and to render it “less than
substantial on the record as a whole.” Ward, supra.
Id. at 73 (quotes and brackets in original).
As late as 1982, the year this court was established as the successor to the
Court of Claims, the Court of Claims was reviewing military disability retirement cases
on the merits, applying the substantial evidence in the record/arbitrary and capricious
standard. See de Cicco v. United States, 677 F.2d 66 (Ct. Cl. 1982) (plaintiff loses);
Hinkle v. United States, 229 Ct. Cl. 801 (1982) (plaintiff loses).
In light of this precedent, which we normally are bound to follow, see South
Corp., 690 F.2d at 1371, we requested from the parties additional briefing on the
following questions:
1. Whether the decisions cited above [Jordan, Ward, Furlong, and
Towell] require this court to treat as justiciable an issue of fitness for
military duty involving, as it does in this case, a question of disability,
and, if so, whether our standard of review of a decision by a
Corrections Board on that issue is to determine whether the decision
was arbitrary or without substantial evidence in the record to support
it;
2. Whether the authority of the above-cited cases has been eroded or
overruled by later statutes or regulations, or by subsequent decisions
of this circuit, see, e.g., Adkins v. United States, 68 F.3d 1317 (Fed.
Cir. 1995), or by decisions of the Supreme Court;
3. Whether the rationale and holding of Lindahl v. Office of Personnel
Management, 470 U.S. 768 (1985), applies to the scope of our review
02-5082 21
of fitness determinations made by the military departments, and if so,
whether it replaces the standard of review otherwise applicable.
Fisher v. United States, No. 02-5082 (Fed. Cir. Oct. 7, 2003) (Order).
The parties have filed supplemental briefs, and we have further considered the
matter. Our conclusions regarding the three questions are the following.
a.
With regard to the first question, it is clear from this review that the controlling
precedents entitle a discharged service member to judicial review on the merits of the
question of eligibility for disability retirement pay. The cases are consistent that this
review is conducted under a deferential standard of review, essentially the standard
under which administrative agency decisions are reviewed: whether the decision is
arbitrary or capricious, unsupported by substantial evidence, or otherwise not in
accordance with law.
The Government in its supplementary brief on the question of justiciability
candidly acknowledges that “[b]ecause the decisions in Jordan, Ward, Furlong, and
Towell are based upon general presumptions of reviewability, absent further
developments in the law, they would preclude this Court from affording [conclusive]
deference to a determination [by the military] of fitness for military duty.” Appellee’s
Supplemental Br. at 4. Dr. Fisher candidly agrees, and notes that, in his view, the
decision closest in point to Dr. Fisher’s case is Jordan. Appellant’s Supplemental Br. at
3.
b.
In response to the second question asked, whether the authority of these
precedents has been eroded or overruled, the Government argues that the force of the
02-5082 22
cited decisions of the Court of Claims clearly has been undermined by subsequent
cases, in particular Adkins v. United States, 68 F.3d 1317 (Fed. Cir. 1995). Dr. Fisher
denies that Adkins had such effect, and cites to several cases decided by the Court of
Federal Claims (various trial judges), and in particular Haskins v. United States, 51 Fed.
Cl. 818 (2002), in which a discharged veteran’s suit against the Army for medical
retirement with full disability pay was found justiciable (though the veteran lost on the
merits).
The Government is correct that our more recent precedents have articulated a
standard of judicial review of military service decisions broadly indicating that courts will
not address the merits of such decisions. See, e.g., Adkins, 68 F.3d at 1323. As we
stated earlier, that is a proper standard to apply to the basic question of an individual’s
eligibility to serve the nation as a war fighter. In Adkins, the question was whether the
Secretary of the Army acted properly when he removed Adkins’ name from the Colonel
Army Promotion List. When Adkins took his case to the Court of Federal Claims, that
court held it had jurisdiction over the cause, but that the matter presented was
nonjusticiable. On appeal, we agreed that the merits of the decision whether to promote
or not were nonjusticiable. We further concluded, however, consistent with earlier
doctrine, that Adkins was entitled to judicial review of the procedures by which the
decision was reached, to ensure that there were no violations of applicable statutes or
regulations. The matter was remanded to the trial court for appropriate further
proceedings.
Adkins was not a disability retirement situation, but a case that addressed directly
who should be allowed to serve on active duty, and in what capacity. Our precedents
02-5082 23
leave little doubt that, absent procedural or due process issues, that issue is for the
Executive to decide, not the courts. Thus we find nothing in the specifics of the Adkins
case, or its outcome, or in other cases on which it relied, to undercut the cited
precedents regarding disability retirement pay, even if such “eroding” of prior precedent
were to be recognized. Nor are we aware of any statutes or any more recent Supreme
Court authority that would dictate a different result.
The Government’s argument did not rest entirely on Adkins and its broadly-stated
propositions. The Government further supported its argument by reference to general
principles of respect for military decision-making, and the importance of constitutional
grants of authority to the President and Congress regarding the waging of war. In
particular, in its petition for rehearing,10 the Government argues that when it comes to
military decisions, there is no room for balancing; it is the court’s duty to uphold the
power of the military to govern its own affairs.
The Government supports its position by invoking two early Supreme Court
decisions, Reaves v. Ainsworth, 219 U.S. 296 (1911) and Denby v. Berry, 263 U.S. 29
(1923), neither of which, the Government argues, were properly considered in the cases
cited in support of this court’s precedents. According to the Government, these
Supreme Court decisions make both the process and substance of fitness for duty
determinations nonreviewable, and dictate that this court may not substitute its
judgment for the Secretary’s as to who is fit to serve.
10
As noted in the accompanying Order issued this date, the Government’s
petition for panel rehearing is granted.
02-5082 24
It is true that language in these cases, read as sweeping proclamations, could be
taken to say that military decisions are simply nonjusticiable, and that appeals to the
courts should be dismissed out of hand. The difficulty with this reading of the cases is
that that is not at all what happened either in Reaves and Denby themselves, or since
then.
Reaves involved a first lieutenant in the artillery who was honorably discharged
from the service. A military examining board had first concluded that he was at the time
of the examination physically incapacitated, and recommended his retention on sick
leave. During a subsequent review, however, the board concluded that he was
physically fit but that he was mentally unable to carry out his assigned duties, which led
to his discharge pursuant to Presidential order. Had the lieutenant been discharged by
reason of physical disability contracted in line of duty, he would have been retired with a
lifetime benefit. Instead, since he was found otherwise not fit to serve, he was
discharged with only one year’s pay, as the law then provided. The argument of the
serviceman was that the findings of the first board were final, that he should have been
retained and promoted and retired in due course with a pension, and that the findings of
the board could not be undone by the President.
The Supreme Court in its review of the case disposed of the finality argument by
finding that the first board’s conclusions were “not a final order, but a provisional one.”
Reaves, 219 U.S. at 300. After careful review of whether the statutes that govern such
discharges had been complied with, the Court concluded that the ultimate question of
who was to be retained in service was the President’s, and he was fully entitled to
accept the later board’s recommendation.
02-5082 25
In Denby, a Naval Reserve officer on active duty was found by a naval board of
medical survey to be under permanent disability incurred in line of duty; the board
recommended that his case be referred to a retiring board. The Secretary of the Navy
disapproved this recommendation, and the officer was ordered released from active
duty. The officer challenged the authority of the Secretary to make such an order,
claiming that under the law he was entitled to have his case considered by a retiring
board in the same manner as regular officers. The Court of Appeals of the District of
Columbia agreed with the officer.
The Supreme Court disagreed with the Court of Appeals, finding that reserve
officers came under a different statutory structure, under which the decision to order to
inactive duty reserve officers serving on active duty was within the discretion of the
President and his alter ego in the Navy Department, the Secretary. “Nowhere is there
found any limitation upon the discretion of the Executive in this regard. The orders in
such cases were in the nature of military orders by the Commander in Chief in the
assignment or withdrawal of available forces to or from duty for the good of the service.”
Denby, 263 U.S. at 34.
In neither of these cases did the Supreme Court issue a blanket denial of judicial
reviewability. On the contrary, in both cases the Court examined the statutory fabric
within which the decision was made, and concluded that on the facts before it the
military’s decision was authorized and proper. This approach was followed in later
cases. See, e.g., Harmon v. Brucker, 355 U.S. 579 (1958); Bell v. United States, 366
U.S. 393 (1961); see also Darrell L. Peck, The Justices and the Generals: the Supreme
Court and Judicial Review of Military Activities, 70 Mil. L. Rev. 1, 33 (1975).
02-5082 26
Furthermore, neither Reaves nor Denby when considered on its facts is directly
relevant to the case before us. In each of the cases that the Government cites the
serviceman was trying to get the courts to order the military to take particular action—in
Denby to order his reinstatement, in Reaves to order the board to place him on the
retired list. Neither case presented a claim against the Government for money in the
Court of Claims; neither arose under the statute involved here; neither held that a claim
for retirement benefits brought in the Court of Claims was nonjusticiable. The case
before us involves solely the issue of a claim for money from the United States.
We are aware of and sensitive to the admonitions contained in Supreme Court
cases, such as “judges are not given the task of running the Army,” Orloff v. Willoughby,
345 U.S. 83, 93 (1953), and “[t]he complex, subtle, and professional decisions as to the
composition, training, equipping, and control of a military force are essentially
professional military judgments,” Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Cases like
Adkins attempt to strike a careful balance between honoring those professional
judgments and protecting the due process rights of our citizens.
But the case before us stands outside these admonitions—the issue is not the
composition of the military, but the society’s legal obligations to those who are no longer
within the military forces. We are compelled by logic and the force of precedent to
conclude that this question is properly subject to judicial review, and that a deferential
standard of review strikes the correct balance here. (Of course, courts can provide
review only so long as there are tests or standards by which the decision can be
measured.)
02-5082 27
c.
This leads to the answer to the third question asked, whether the rationale and
holding of Lindahl v. Office of Personnel Management, 470 U.S. 768 (1985), applies to
this case, and should it in effect replace the standard of review utilized by the Court of
Claims. Lindahl involved the issue of eligibility for disability retirement by civilian
personnel working for the United States Government. Under the Civil Service
Retirement Act, Congress early on had mandated that decisions regarding disability
retirement for Federal civilian employees would be made by the Civil Service
Commission; subsequently the Supreme Court concluded that such disability retirement
decisions could be reviewed by district courts under the Tucker Act. Id. at 772 (citing
Dismuke v. United States, 297 U.S. 167, 172 (1936)).
Congress later amended the civil service laws to include a finality provision that
applied to the Commission’s disability retirement decisions. The current version of that
provision, not substantively different from the original, provides that “decisions . . . [of
the designated administrative agency] concerning these matters are final and
conclusive and are not subject to review.” 5 U.S.C § 8347(c). Interpreting this proviso
in 1968, the Court of Claims in Scroggins v. United States, 397 F.2d 295 (1968), ruled
that the statute strictly limited judicial review. Courts could not weigh the evidence or
even determine whether disability determinations were supported by substantial
evidence in the record. The court went on to hold, however, that there remained a
residual level of review despite the statute: disability decisions could be reviewed under
a highly deferential standard to determine whether there had been “a substantial
departure from important procedural rights, a misconstruction of the governing
02-5082 28
legislation, or some like error going to the heart of the administrative decision.” Id. at
297 (internal quotation marks omitted).
Congress in 1978 replaced the Civil Service Commission with the Office of
Personnel Management (OPM). A new Merit Systems Protection Board was to review
OPM’s decisions in retirement cases. No modifications were made to the finality clause
of § 8347(c).
Subsequently, the question arose whether the Scroggins rule still applied to
disability decisions by OPM. In view of the new civil service statutory provisions, this
court concluded that Congress now intended § 8347(c), the finality provision, to mean
exactly what it said: there would be no judicial review of civilian employee disability
retirement decisions whatsoever; the Scroggins rule was deemed no longer operative.
Lindahl v. Office of Pers. Mgmt., 718 F.2d 391, 394 (Fed. Cir. 1983) (en banc).
The Supreme Court disagreed, and reversed this court. See Lindahl, 470 U.S. at
782-83. The Supreme Court held that the changes to the civil service system did not
express a clearly stated Congressional intention to overturn the Scroggins residual
review standard, and that it remained in effect. Id. As a result, the Scroggins review
standard re-established in Lindahl is sometimes now referred to as the Lindahl
standard. In absence of a more rigorous review standard, it does provide a residual
basis on which a court could examine both the process and outcome of an
administrative decision.
In its supplemental brief, the Government urges us to adopt the Lindahl test as
the appropriate standard of judicial review for military disability determinations, arguing
that this standard conforms with the deference owed to military decision-making. The
02-5082 29
Government argues that judicial review of military members was not intended by
Congress to be subject to more searching review than that applied to civilian members
of the Federal workforce. Furthermore, in the Government’s view, since Dr. Fisher does
not raise any claims of procedural error as such, if we were to apply the Lindahl test
there would be no need for a remand for further proceedings.
Dr. Fisher sees no place for the Lindahl test in his case, pointing to the fact that
Scroggins and Lindahl turned on an interpretation of § 8347(c), and that there is no
parallel statute applicable to the military cases. Dr. Fisher notes that, contrary to the
Congressional mandate of nonreviewability in the civilian cases, the broad language of
the Tucker Act, specifically 28 U.S.C. § 1491(a)(2), argues in favor of judicial review.
The factual issue in Scroggins, in Lindahl, and in the case before us is the same:
whether the individual is entitled to a disability retirement. The parallels cease at that
point. First, Dr. Fisher is correct that the legal framework is quite different. There is no
express statute governing military disability case review, as there is in the case of
civilian disability cases. Further, as we have explained, the established fabric of judicial
review of military disability decisions is fully woven: the military disability cases have
their own established standard of review, a standard that strikes a balance between
allowing the military to control its membership, while preserving the individual’s right to
earned retirement pay as provided by law.
Under these circumstances, we see no basis in the case before us under which
we could substitute the Lindahl residual review standard in place of the review standard
established by our precedents. We recognize the anomaly in applying a more
deferential standard to review of civilian disability cases than we do to military disability
02-5082 30
cases. However, in absence of further Congressional guidance, if a more deferential
standard of review such as the Lindahl test is to be applied in the military disability
cases in place of the established substantial evidence/arbitrary or capricious test, that
change would have to be made by the Federal Circuit sitting en banc or perhaps by the
Supreme Court, if review is granted by either of those bodies.11
III. CONCLUSION
The Court of Federal Claims has jurisdiction to hear the case brought by Dr.
Fisher, and the issue raised by Dr. Fisher is justiciable. Accordingly, the matter is
remanded to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED
11
The en banc court in this case granted review of the jurisdiction question,
but declined to review the justiciability issue.
02-5082 31
United States Court of Appeals for the Federal Circuit
02-5082
FRANK E. FISHER,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
PLAGER, Senior Circuit Judge, additional views, joined by NEWMAN and GAJARSA,
Circuit Judges.
The court’s opinion, with the support of the full court acting en banc, straightens
out an area of confusion concerning the jurisdiction of the courts to hear and decide
Tucker Act claims and the relationship of the jurisdictional issue to the Tucker Act’s
requirement for a money-mandating source. Clarity, especially when accompanied by
simplicity, is to be valued.
I regret that the en banc court did not choose to address the justiciability issue as
well. The Government sought to have us resolve the matter in its favor by applying two
old Supreme Court cases that will not stretch that far; given the current state of the law,
the conclusion the panel reaches supporting a level of intrusive judicial review is correct.
However, I believe the state of the law is less than satisfactory.
I do not see a rational basis for imposing a more intrusive level of judicial review
in these military disability cases than is imposed in the same cases involving civilian
workers in the federal government. The issues and problems are indistinguishable. At
most, the military disability cases should be subject to the same residual due process
assurance standard imposed by Lindahl. I believe such a deferential standard better
reflects the deference due the military in these cases, and brings them into line with the
civilian cases. Why I believe this to be the right answer can best be explained by
looking more generally at the question of judicial review of military decision making.
The question of whether actions by administrative officers of the Government,
acting under Article II of the Constitution, are subject to review by judicial officers, acting
under Article III, has roots back to the Nineteenth Century. One of the earliest cases
addressing the question, Decatur v. Paulding, 39 U.S. (14 Pet.) 497 (1840), was a
military case involving the application of a federal pension statute to the widow of a
member of the Navy. The Court’s opinion, denying judicial reviewability of the executive
branch decision, did not limit itself to military concerns. From this case and others of
that era developed a doctrine of non-reviewability of executive branch decisions.
The doctrine of non-reviewability held sway for a considerable period of time. It
was still strong when the two cases cited to us by the Government, Reaves v.
Ainsworth, 219 U.S. 296 (1911) and Denby v. Berry, 263 U.S. 29 (1923), were decided.
They followed in time a series of cases involving petitions for review of military courts-
martial decisions, cases in which the Supreme Court made clear that it would not allow
civil court review of the merits of such military tribunals. See, e.g., Dynes v. Hoover, 61
U.S. (20 How.) 65 (1858); Ex Parte Reed, 100 U.S. 13 (1879).
The Reaves case was not itself a criminal proceeding, but an administrative
decision by the Army involving the discharge from the service of an officer who claimed
he should have been discharged with a physical disability pension. The issue in Denby
02-5082 2
was whether a federal court could force the Secretary of the Navy to return to active
duty an officer in the Naval reserve whom he had ordered released from active service,
the officer seeking a return to active duty so he could be evaluated by a retirement
board with a view to being retired with disability pay.
It is important to recognize that in both Reaves and Denby the Supreme Court
did not simply say “this is a military service case, and these are cases we judges do not
review.” Instead, in both cases, and despite its protestations of respect for Executive
authority, the Supreme Court undertook a careful review of the applicable statutes and
regulations, and examined whether the military had stayed within “the scope of its lawful
powers”1 in its decision-making. Even so, if the broad language of these cases
represented the last word on review of Executive branch decision-making in general,
and on review of military authorities in particular, there would be some force to the
Government’s argument. That of course is not the case.
It would extend unduly this opinion to recite in detail the evolution of judicial
review of administrative action during the more than 160 years since Decatur v.
Paulding, including the impact of Congress’ enactment in 1946 of the Administrative
Procedure Act (the APA).2 Today the doctrine of non-reviewability of Executive action is
understood to have lost much of its force; although the doctrine has occasional
resurgences, it is now generally accepted that there is a presumption in favor of judicial
1
Reaves, 219 U.S. at 304.
2
5 U.S.C. §§ 551-59, 701-06.
02-5082 3
review of administrative action except when Congress has expressly mandated
otherwise.3
Judicial review of administrative decisions made by an agency of the military
regarding service members has likewise undergone significant change. The APA itself
provides exemption only for specified military functions,4 leaving the general run of
military administrative decisions presumably subject to the Act.5 An exhaustive study
based on an extensive review of Supreme Court decisions in the years since Decatur v.
Paulding concluded that there are four established categories of legal challenges to
military administrative personnel actions that are judicially reviewable: (1) lack of
jurisdiction over the person; (2) violation of statutory authority; (3) violation of the
military’s own regulations; and (4) violation of the Constitution.6 In each of these
categories the issue is the one posed in Reaves v. Ainsworth: did the military stay within
the scope of its lawful powers in its decision-making.7
3
See generally Richard J. Pierce, Jr., Administrative Law Treatise, §§ 17.5-
17.9 (4th ed. 2002).
4
See 5 U.S.C. § 551(1)(F) (courts martial and military commissions); 5
U.S.C. § 551(1)(G) (military authority exercised in the field in time of war or in occupied
territory).
5
See John B. McDaniel, The Availability and Scope of Judicial Review of
Discretionary Military Administrative Decisions, 108 Mil. L. Rev. 89, 95 (1985).
6
Darrell L. Peck, The Justices and the Generals: The Supreme Court and
Judicial Review of Military Activities, 70 Mil. L. Rev. 1, 78 (1975); see also Daniel J.
Meador, Judicial Review in Military Disability Cases, 33 Mil. L. Rev. 1 (1966).
7
Peck, supra, at 78-79, notes as an exception a subset of the violation of
the Constitution category, when the question raised is not whether the governing statute
is unconstitutional, but whether the action taken pursuant to the statute is.
02-5082 4
The question of judicial reviewability becomes more difficult when the issue is
whether the military decision, though within the scope of the authorized power, is on the
merits arbitrary or capricious, or involves a denial of due process, or is unsupported or
otherwise unlawful. There are indeed good reasons why aspects of the President’s
conduct of military affairs should not be subject to challenge on their merits in the civil
courts—separation of powers argues for leaving the conduct of war and the
requirements needed for war fighting to the President and Congress, both as a
Constitutional construct and as a matter of relative competence. At the same time,
when important individual rights are at issue and are allegedly the subject of
administrative abuse, it can be argued that some room must remain for effective judicial
review—the fact that an administrative personnel decision is made by an agency that is
part of the military as distinct from an agency in some other part of the Executive branch
should not per se immunize it from judicial scrutiny.
One suggested approach to the merits-review question contemplates a careful
balancing of the interests of the individual with those of the military interests at stake.8
Factors affecting the individual are the nature and importance of the right asserted, and
the impact of the injury resulting from the action. Factors of importance to the military
include the type and amount of discretion involved; any special military expertise in the
matter inherent in the decision; the extent to which judicial intervention would interfere
with the military function; and whether judicial intervention would unduly impact on any
special requirements of the military community.
8
See Peck, supra, for a thorough discussion of the need for balancing and
the factors to be considered.
02-5082 5
Putting aside for the moment the force of the precedents of the Court of Claims
cited in the court’s opinion, and applying the above analysis, Dr. Fisher’s case falls
safely on the side of judicial reviewability. First and most important is the fact that the
issue before us is not one of military governance and authority going to the question of
war fighting; the issue is an administrative one, the outcome of which results only in a
grant or denial of disbursements from the Treasury.
Looking then to the suggested factors to be balanced, the right asserted by Dr.
Fisher is one to well-established pension benefits for those who suffer duty-related
injury, and the denial of which would be a clear and specific financial injury. From the
military side, the discretionary decision whether Dr. Fisher should be compensated for
an alleged injury does not seem to be particularly a military discretion as such; its
judicial review would not seem to intrude to any great extent on the needed prerogatives
of the President in conducting military affairs. Nor is the expertise required to decide
the case especially that of the military; to the extent courts are called upon to review
medical decisions of all sorts to determine whether there has been an abuse of
discretion, this one is not that different. Further, a decision in favor of Dr. Fisher does
not interfere with a particularly military function—the same problem of eligibility for
disability compensation arises in the civilian context as well, and since the issue is not
whether Dr. Fisher should be returned to military duty but how if at all he should be
compensated for past duty, any special requirements of the military community would
not seem to be significantly implicated.
In my view, the Government’s reliance on almost century-old cases, and on
sweeping pronouncements from an earlier era in administrative law, is less persuasive
02-5082 6
than it needs to be in order for the Government’s argument of absolute non-reviewability
to prevail in this case. At the same time, the Government is correct that it is anomalous
for courts to continue to review on the merits military disability decisions when the same
issues arising in the federal civil service are by court rule and statute not so reviewable.
If the policy of the United States is to make agency disability decisions for federal
employees subject only to the quite limited review provided by the Lindahl standard,
there seems no compelling reason not to apply that same standard to the same issues
arising when the agency is a part of the military establishment. In providing uniformity
of civilian/military treatment, we would also more properly reflect the deference owed to
the Executive in the area of military governance.
The initial choice of the standard of review in military disability cases was made
by the judiciary, and presumably an appropriate body of the judiciary could change it. It
would certainly be within the authority of Congress to apply the same statutory review
standard to both situations. Given the state of the law, however, this is not a matter that
a panel of this court has the power to correct.
02-5082 7