Randall v. United States

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIE C. RANDALL, Major,
Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA; THE
UNITED STATES ARMY CLAIMS
SERVICE; TOGO D. WEST, JR.,
Secretary of the Army; DAVID R.
KINNEER, Executive Secretary, Army
No. 95-2504
Board for Correction of Military
Records; DEPUTY CHIEF, Appeals
and Corrections Branch; OFFICERS,
Special Review Board (OSRB);
REINARD M. LOTZ, Colonel; STEPHEN
GARRET, Colonel; ORA J. WILLIAMS,
Lieutenant Colonel,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Franklin T. Dupree Jr., Senior District Judge.
(CA-94-866-5-D)

Argued: May 7, 1996

Decided: September 10, 1996

Before WILKINSON, Chief Judge, ERVIN, Circuit Judge, and
CHAPMAN, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Senior Judge Chapman wrote the
opinion, in which Chief Judge Wilkinson and Judge Ervin concurred.
COUNSEL

ARGUED: Clifford Leon Lee, II, THE LEE LAW FIRM, P.A., Fay-
etteville, North Carolina, for Appellant. Bruce Charles Johnson,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee. ON BRIEF: Janice McKenzie Cole, United States Attorney,
Eileen C. Moore, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.

_________________________________________________________________

OPINION

CHAPMAN, Senior Circuit Judge:

Plaintiff-Appellant, Willie C. Randall, a Major in the United States
Army, filed this action after he was denied promotion to the rank of
Lieutenant Colonel. Plaintiff alleges that his nonselection was the
result of racial discrimination, that he was denied due process, and
that the Army failed to follow its own regulations in reviewing his
request for correction of his military records. The district court
granted Defendants' motion to dismiss or, in the alternative, for sum-
mary judgment, and Plaintiff appealed. For the reasons that follow,
we affirm.

I.

Plaintiff is a United States Army Major in the Quartermaster Corps
and is currently stationed at Fort Bragg, North Carolina. He was origi-
nally commissioned in the Army Reserve on May 9, 1976, after com-
pleting the Reserve Officer Training Corp (ROTC) Program and
graduating from college. He was promoted to First Lieutenant on
August 29, 1978, and to Captain on September 15, 1980. He received
an appointment to the regular Army from the President and was con-
firmed by the Senate on November 10, 1982. On January 1, 1988, he
was promoted to the rank of Major. By all accounts, Plaintiff has had
a distinguished military career. He has continued his formal education
while in the Army, has received several military awards, and served
with distinction in Saudi Arabia during Operations Desert Shield and
Desert Storm.

2
Plaintiff anticipated being promoted in due course to the rank of
Lieutenant Colonel. On May 16, 1991, however, he received a letter
from Lieutenant Colonel James M. Colvin, Chief of the Quartermas-
ter Branch of the United States Army, indicating that Plaintiff's 1990
Officer Evaluation Report ("OER") might present a problem for his
continued promotion. LTC Colvin stated that the rating for potential
in Plaintiff's 1990 OER "is below average compared to [his] contem-
poraries" and that "a continuation in this direction may have a serious
impact on [his] potential for promotion." S.A. at 289.

In response to LTC Colvin's letter, Plaintiff visited the Quarter-
master Branch on July 31, 1991 to review his military records to
determine the source of the unfavorable material referred to by LTC
Colvin. When Plaintiff reviewed his records, he discovered that his
OER for the period from January 1, 1990 to December 31, 1990 con-
tained an unfavorable rating of his potential.1 Plaintiff also discovered
two additional OERs that reflected similar unfavorable ratings of his
potential. Those OERs rated Plaintiff from May 5, 1982 to May 9,
1983 (OER #1) and from May 10, 1983 to November 16, 1983 (OER
#2). Plaintiff believed that all three OERs contained inaccurate ratings
of his potential because the ratings were arguably inconsistent with
the written comments contained in another part of the OER.2
_________________________________________________________________
1 Part VII(a) of the OER contains nine vertical blocks on which the
senior rater assesses the ratee's potential by placing a mark in one of the
blocks. AR 623-105, ¶ 4-16(d)(1) (Mar. 31, 1992), S.A. at 358. On Plain-
tiff's 1990 OER, the third block is marked with an"X." J.A. at 129.
Although this selection is in the top third of the nine possible blocks, it
reflects an unfavorable rating when compared with the senior rater's pro-
file, which measures how that particular officer rated the other individu-
als he is responsible for rating. See AR 623-105, ¶ 4-167(d)(5), S.A. at
358. Plaintiff's three-block rating is below center of mass, or below aver-
age, on the senior rater's profile, because, of the nineteen officers rated
by that particular senior rater, twelve received a two-block rating for
potential, six (including Plaintiff) received a three-block rating, and one
received a four-block rating. J.A. at 129.
2 Part VII(b) of the OER contains a space for the senior rater to provide
written comments about the ratee. That portion of the OER can include
either an explanation of the potential evaluation in Part VII(a), or it can
be an assessment of the ratee's actual performance. AR 623-105, ¶ 4-
16(d)(2), S.A. at 358.

3
On November 27, 1991, Plaintiff filed an appeal of his 1990 OER
to the Officers Special Review Board ("OSRB"). He sought to
upgrade his potential rating or to expunge that portion of the OER
from his records altogether. In addition, on December 12, 1991, Plain-
tiff appealed OERs #1 and 2 to the OSRB. He sought the same relief
for OERs #1 and 2 that he sought for his 1990 OER, and he requested
that the OSRB waive the time limitation in 10 U.S.C.§ 1552(b)3 for
the earlier OERs.

In support of his appeal of OERs #1 and 2, Plaintiff submitted to
the OSRB supporting statements from several of his superior officers
and some newspaper clippings highlighting his accomplishments. The
OSRB did not deem it necessary to contact the senior rater who com-
pleted the OERs in question. Although the OSRB waived the statute
of limitations as to OERs # 1 and 2, it nevertheless denied Plaintiff's
appeal. According to the OSRB, Plaintiff "failed to provide clear and
convincing evidence that supports his contention that the contested
OERs are inaccurate." S.A. at 130.

The OSRB reached essentially the same conclusion with respect to
Plaintiff's 1990 OER. In support of that appeal, Plaintiff again sub-
mitted favorable testimonials from several of his contemporaries and
superior officers, as well as a certificate and citation for the award of
the Bronze Star Medal he received from his service in the Gulf War
_________________________________________________________________
3 Section 1552(b) of Title 10 of the United States Code provides that
a claimant may seek to correct his military records"within three years
after he discovers the error or injustice." 10 U.S.C. § 1552(b). That sec-
tion further provides that a Board for the Correction of Military Records
"may excuse a failure to file within three years after discovery if it finds
it to be in the interest of justice." Id. Although this court need not address
the applicability of this limitations period to this case, there is some
debate about whether this statute of limitation is tolled during a service
member's period of active service by the Soldiers' and Sailors' Civil
Relief Act of 1940 ("SSCRA"), 50 U.S.C. § 525. Compare Detweiler v.
Pena, 38 F.3d 591 (D.C. Cir. 1994) (holding that tolling provision in
SSCRA tolls three-year limitations period in 10 U.S.C. § 1552(b) during
service member's period of active duty; but that the equitable defense of
laches may still prevent review), with Miller v. United States, 29 Fed. Cl.
107 (1993) (holding that SSCRA does not toll limitations period of 10
U.S.C. § 1552(b)).

4
during the rated period. The OSRB conducted a thorough investiga-
tion and interviewed the rating officials who completed Plaintiff's
1990 OER. The intermediate rater indicated that she had problems
getting Plaintiff to follow her directions and that Plaintiff seemed to
think he knew the best way to get things done. In addition, the senior
rater stated that Plaintiff was "like a loose cannon on deck." S.A. at
144. The OSRB concluded that Plaintiff "failed to provide clear and
convincing evidence that supports his contention that the contested
OER is inaccurate and unjust and does not adequately reflect his per-
formance or potential." S.A.at 146. Accordingly, the OSRB denied
Plaintiff's appeal.

Plaintiff was denied promotion to Lieutenant Colonel on August 6,
1992.

Thereafter, he appealed the decision of the OSRB as to all three of
his OERs to the Army Board for the Correction of Military Records
("ABCMR"). He requested that all three OERs be upgraded to reflect
a center of mass rating for potential or, in the alternative, that the
potential evaluation be deleted entirely from each report. In addition,
he requested that his records be corrected to reflect that he was
selected for promotion to the rank of Lieutenant Colonel by the 1990
promotion selection board.

On March 17, 1993, the ABCMR issued two memoranda of con-
sideration denying Plaintiff's requests. The ABCMR determined that
Plaintiff's appeal of OERs #1 and 2 was not timely. Also, the
ABCMR stated that Plaintiff "has not presented and the records do
not contain sufficient justification to conclude that it would be in the
interest of justice to grant the relief requested or to excuse the failure
to file within the time prescribed by law." S.A. at 127. As to the 1990
OER, the ABCMR similarly determined that Plaintiff"has failed to
submit sufficient relevant evidence to demonstrate the existence of
probable error or injustice." S.A. at 141.

After Plaintiff exhausted his administrative appeals, he filed the
instant action in the United States District Court for the Eastern Dis-
trict of North Carolina on November 14, 1994. He alleges three
causes of action in his complaint: (1) employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

5
§ 2000e-16; (2) violation of the Due Process Clause of the Fifth
Amendment to the United States Constitution; and (3) the Army's
failure to follow its own regulations in reviewing his request for cor-
rection of military records. Plaintiff seeks to have the district court
order that the adverse ratings in the three challenged OERs be
upgraded or removed from his records; that he be retroactively pro-
moted to Lieutenant Colonel with back pay; and that he be allowed
to attend advanced military schools and be guaranteed an opportunity
to compete for the rank of Colonel.

On January 30, 1995, Defendants filed a motion to dismiss or, in
the alternative, for summary judgment. The district court granted
Defendants' motion on July 3, 1995. The district court dismissed
Plaintiff's Title VII claim under Fed. R. Civ. P. 12(b)(1) for lack of
subject matter jurisdiction, ruling that Title VII does not apply to uni-
formed members of the military. The district court also dismissed
Plaintiff's constitutional claim under Fed. R. Civ. P. 12(b)(6) for fail-
ure to state a claim upon which relief can be granted. The court found,
inter alia, that Plaintiff's due process claims were nonjusticiable.
Finally, the court granted summary judgment for Defendants under
Fed. R. Civ. P. 56 with regard to Plaintiff's claim that the Army failed
to follow its own regulations in reviewing his request to correct his
military records. The court found that the ABCMR's actions were not
arbitrary, capricious, or unsupported by substantial evidence.

Plaintiff appeals from the district court's order of July 3, 1995. We
address each of Plaintiff's allegations of error below.

II.

Plaintiff's first cause of action is for alleged employment discrimi-
nation in violation of Title VII. Plaintiff, who is an African American,
alleges that his unfavorable OERs were the result of improper racial
discrimination. He contends that the district court erred in dismissing
his discrimination claim.

This court reviews de novo the district court's dismissal of Plain-
tiff's Title VII claim for lack of subject matter jurisdiction. Ahmed v.
United States, 30 F.3d 514, 516 (4th Cir. 1994).

6
Section 717 of Title VII, 42 U.S.C. § 2000e-16(a), provides, in rel-
evant part, "All personnel actions affecting employees or applicants
for employment . . . in military departments as defined in section 105
of Title 5 . . . shall be made free from any discrimination based on
race, color, religion, sex, or national origin." As the district court cor-
rectly recognized, every federal court of appeal that has addressed the
issue has held that Title VII does not apply to uniformed members of
the military. E.g., Roper v. Department of Army, 832 F.2d 247, 248
(2d Cir. 1987); Gonzalez v. Department of Army , 718 F.2d 926, 928-
29 (9th Cir. 1983); Johnson v. Alexander, 572 F.2d 1219 (8th Cir.),
cert. denied, 439 U.S. 986 (1978); see also Collins v. Secretary of
Navy, 814 F. Supp. 130 (D.D.C. 1993). But see Hill v. Beckman, 635
F. Supp. 1228 (E.D.N.Y. 1986) (holding that uniformed service mem-
ber may bring sex discrimination suit under Title VII) (rejected by
Roper, supra). Those courts have recognized the difference between
the definition of the term "military departments" as used in 42 U.S.C.
§ 2000e-16 and the term "armed forces." Under this distinction, the
term "military departments" includes only civilian employees of the
Army, Navy, or Air Force; while the term "armed forces" refers to
uniformed military personnel.4Gonzalez, 718 F.2d at 928. The court
in Gonzalez reasoned that Congress recognized the difference
between the two terms when it drafted section 717 to apply specifi-
cally to "military departments." The Gonzalez court found support for
its interpretation of section 717 in the legislative history of the statute.
Id.

This court agrees that Congress intended to include only civilian
employees of the military departments, and not uniformed service
members, within the reach of Title VII. Therefore, the district court
_________________________________________________________________
4 Section 102 of Title 5 of the United States Code, which is specifically
referenced in 42 U.S.C. § 2000e-16, provides that "[t]he military depart-
ments are: The Department of the Army[;] The Department of the Navy[;
and] The Department of the Air Force." 5 U.S.C. § 102. Section
101(a)(8) of Title 10 of the United States Code contains virtually the
identical definition of the term "military departments." See 10 U.S.C.
§ 101(a)(8). Significantly, however, 10 U.S.C.§ 101 contains a separate
definition of the term "armed forces," which is defined to mean "the
Army, Navy, Air Force, Marine Corps, and Coast Guard." 10 U.S.C.
§ 101(a)(4).

7
was correct in dismissing this count of Plaintiff's complaint under
Fed. R. Civ. P. 12(b)(1) for want of subject matter jurisdiction.

III.

Plaintiff's second cause of action is for violation of his Fifth
Amendment right to due process. The district court dismissed this
cause of action under Fed. R. Civ. P. 12(b)(6), ruling that the allega-
tions presented a nonjusticiable issue.

We review a dismissal under Rule 12(b)(6) de novo, construing the
factual allegations in the light most favorable to the plaintiff. Biggs
v. Meadows, 66 F.3d 56, 59 (4th Cir. 1995)."Dismissal for failure to
state a claim is proper where `it is clear that no relief could be granted
under any set of facts that could be proved consistent with the allega-
tions.'" Id. (quoting Hinshon v. King & Spalding, 467 U.S. 69, 73
(1984)).

The district court construed Plaintiff's complaint as alleging a
cause of action under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the United
States Supreme Court held that a plaintiff could sue federal officers
individually for damages caused by constitutional torts committed
under color of their authority. See Robinson v. Overseas Military
Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994).

We have some serious reservations about whether the district court
should have implied a Bivens action from the allegations in Plaintiff's
complaint. Although Fed. R. Civ. P. 8(c) provides that "[a]ll pleadings
shall be so construed as to do substantial justice," this court has
imposed a heightened pleading requirement for plaintiffs asserting
actions against federal officials under Bivens . See Dunbar Corp. v.
Lindsey, 905 F.2d 754, 764 (4th Cir. 1990) ("We agree . . . that a
`heightened pleading standard' is highly appropriate in actions against
government officials."). The allegations in Plaintiff's complaint likely
do not contain the requisite specificity to be appropriately reviewed
as a Bivens action.

Nevertheless, we agree with the district court's ultimate conclusion
that Plaintiff cannot recover under Bivens for the alleged due process

8
violations of Defendants. In Chappell v. Wallace , 462 U.S. 296
(1983), the Supreme Court specifically held that"enlisted military
personnel may not maintain a suit to recover damages from a superior
officer for alleged constitutional violations." Id. at 305. The Chappell
Court determined that the unique disciplinary structure of the military
and Congress's plenary authority over the armed forces presented
"`special factors counselling hesitation'" to allowing a Bivens-type
action by servicemen against their superiors. Id. at 298, 304 (quoting
Bivens, 403 U.S. at 396)). The Court noted that Congress has pro-
vided specific remedies for complaints and grievances of servicemen,
such as applying to the boards for the correction of military records
under 10 U.S.C. § 1552(a).

Although the specific language of Chappell prohibits suits by
enlisted service members against their superior officers, the Supreme
Court in United States v. Stanley, 483 U.S. 669 (1987), specifically
held that "no Bivens remedy is available for injuries that `arise out of
or are in the course of activity incident to service.'" Id. at 684 (quot-
ing Feres v. United States, 340 U.S. 135, 146 (1950)); see also
Mickens v. United States, 760 F.2d 539, 540 (4th Cir. 1985) (per
curiam) (holding that the rationale of Chappell bars a Bivens-type suit
brought by a subordinate officer against a superior officer), cert.
denied, 474 U.S. 1104 (1986).

This court agrees with the district court's determination that Plain-
tiff's allegations "arise out of or are in the course of activity incident
to service." Therefore, the district court was correct in dismissing
Plaintiff's due process cause of action for failure to state a claim.5
_________________________________________________________________
5 We do not reach the district court's alternative ruling that Plaintiff
cannot demonstrate a property interest in a military promotion or contin-
ued military service, or a liberty interest in preserving his good name and
reputation. See, e.g., Blevins v. Orr , 721 F.2d 1419, 1421-22 (D.C. Cir.
1983) ("[I]t is clear that military promotion decisions simpliciter are not
susceptible to due process challenges, inasmuch as there exists no prop-
erty or liberty interest in a military promotion per se."); Sims v. Fox, 505
F.2d 857, 860-64 (5th Cir. 1974) (en banc) (holding that serviceman
failed to demonstrate property or liberty interest in challenging his dis-
charge from Air Force), cert. denied, 421 U.S. 1011 (1975).

9
IV.

Before reaching the merits of Plaintiff's appeal as to the remaining
cause of action, we must address the issue of jurisdiction, both in the
district court and in this court. It is well settled that "[f]ederal courts
are courts of limited jurisdiction. They possess only that power autho-
rized by Constitution and statute." Kokkonen v. Guardian Life Ins.
Co., 114 S. Ct. 1673, 1675 (1994). Although neither party has chal-
lenged the jurisdiction of this court or the district court, the Supreme
Court has stated that "every federal appellate court has a special obli-
gation to `satisfy itself not only of its own jurisdiction, but also that
of the lower courts in a cause under review,' even though the parties
are prepared to concede it." Bender v. Williamsport Area School Dist.,
475 U.S. 534, 541 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237,
244 (1934)). The court's concern about jurisdiction in this case stems
primarily from the district court's failure to address the issue of sover-
eign immunity.6

As the Supreme Court has recognized, "It is axiomatic that the
United States may not be sued without its consent and that the exis-
tence of consent is a prerequisite for jurisdiction." United States v.
Mitchell, 463 U.S. 206, 212 (1983). Furthermore,"a waiver of the tra-
ditional sovereign immunity `cannot be implied but must be unequiv-
ocally expressed.'" United States v. Testan , 424 U.S. 392, 399 (1976)
(quoting United States v. King, 395 U.S. 1, 4 (1969)).

Here, the district court rejected the only basis for jurisdiction
alleged in Plaintiff's complaint: the Little Tucker Act, 28 U.S.C.
§ 1346(a)(2). The district court examined Plaintiff's allegations and
inferred jurisdiction under the general federal question jurisdiction
statute, 28 U.S.C. § 1331.7 However, section 1331 "is not a general
_________________________________________________________________
6 Plaintiff's cause of action under Title VII, were it viable, would not
present the same concerns of sovereign immunity, because 42 U.S.C.
§ 2000e-16 contains an express waiver of sovereign immunity for actions
covered by the statute. E.g., Salazar v. Heckler, 787 F.2d 527 (10th Cir.
1986) (stating that 42 U.S.C. § 2000e-16(c) is a clear expression of con-
sent to suit against the United States by federal employees covered by
subsection (a)).
7 Section 1331 provides, "The district courts shall have original juris-
diction of all civil actions arising under the Constitution, laws, or treaties
of the United States." 28 U.S.C. § 1331.

10
waiver of sovereign immunity. It merely establishes a subject matter
that is within the competence of federal courts to entertain."
Coggeshall Dev. Corp. v. Diamond, 884 F.2d 1, 4 (1st Cir. 1989)
(citation omitted); Humphreys v. United States , 62 F.3d 667 (5th Cir.
1995) (holding that 28 U.S.C. § 1331, by granting district courts juris-
diction over constitutional claims, does not thereby waive sovereign
immunity).

The district court's analysis of Plaintiff's case under Bivens, supra,
is also not sufficient to remove the concern of sovereign immunity.
Bivens did not abolish the doctrine of sovereign immunity of the
United States. Any remedy under Bivens is against federal officials
individually, not the federal government. See Robinson v. Overseas
Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994).

Generally, plaintiffs in cases such as this one, challenging a deci-
sion of a board for the correction of military records, have used one
of two avenues to establish federal jurisdiction: the Tucker Act, 28
U.S.C. §§ 1346(a)(2), 1491; and the Administrative Procedures Act
("APA"), 5 U.S.C. §§ 701-706. Both of these statutes have been con-
strued as waivers by the United States of sovereign immunity. E.g.,
United States v. Mitchell, 463 U.S. at 212 ("[W]e conclude that by
giving the Court of [Federal] Claims jurisdiction over specified types
of claims against the United States, the Tucker Act constitutes a
waiver of sovereign immunity with respect to those claims."); Bowen
v. Massachusetts, 487 U.S. 879, 891-92 (1988) ("[I]t is undisputed
that the 1976 amendment to [5 U.S.C.] § 702 was intended to broaden
the avenues for judicial review of agency action by eliminating the
defense of sovereign immunity in cases covered by the amendment
. . . .").

As noted earlier, Plaintiff's complaint invokes the Little Tucker
Act, 28 U.S.C. § 1346(a)(2), as the sole basis for jurisdiction in this
case. J.A. at 7. We have recognized that Fed. R. Civ. P. 8(a)(1)
requires plaintiffs to affirmatively plead the jurisdiction of the federal
court. Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir.),
cert. denied, 474 U.S. 945 (1985). However, Rule 8(f) provides that
"[a]ll pleadings shall be so construed as to do substantial justice." As
the United States Court of Appeals for the Tenth Circuit has stated,
"Although a plaintiff must allege essential jurisdictional facts in a

11
complaint, federal jurisdiction may be sustained on the basis of a stat-
ute not relied on or alleged in the pleadings." Celli v. Shoell, 40 F.3d
324, 328 (10th Cir. 1994). Thus, if the allegations in Plaintiff's com-
plaint are sufficient to support jurisdiction under a provision other
than the Tucker Act, such as the APA, this court is authorized to
examine the case under that provision.

The interplay between the Tucker Act and the APA is somewhat
complicated and raises some significant issues of federal court juris-
diction. Determining the proper statutory framework for the district
court's jurisdiction in this case is critical because it affects the appel-
late jurisdiction of this court. The United States Court of Appeals for
the Federal Circuit, not the regional courts of appeals, has exclusive
jurisdiction over appeals in cases based "in whole or in part" on the
Tucker Act. 28 U.S.C. § 1295(a)(2). The provision of 28 U.S.C.
§ 1295(a)(2) is mandatory and cannot be waived by the parties,
because it relates to the subject matter jurisdiction of this court.
Trayco, Inc. v. United States, 967 F.2d 97, 100 (4th Cir. 1992).
Accordingly, if Plaintiff's action were properly before the district
court under the Little Tucker Act, the appeal therefrom would have
to go to the Federal Circuit, not to this court.

In addition, this court is cautious about trespassing into the prov-
ince of the Court of Federal Claims and the Federal Circuit to decide
non-tort actions against the United States. As the United States Court
of Appeals for the D.C. Circuit has recognized,"a primary purpose
of the [Tucker] Act [is] to ensure that a central judicial body adjudi-
cates most claims against the United States Treasury." Kidwell v.
Department of Army, 56 F.3d 279, 284 (D.C. Cir. 1995) (citing
United States v. Hohri, 482 U.S. 64, 71-73 (1987)). The Court of Fed-
eral Claims and the Court of Appeals for the Federal Circuit have "ex-
tensive experience reviewing decisions of corrections boards in
military pay cases." Mitchell v. United States, 930 F.2d 893, 896 (Fed.
Cir. 1991). With these basic principles in mind, we turn our analysis
to whether the Tucker Act or the APA provides the appropriate juris-
dictional foundation for this case.

A.

The APA generally provides that a person who claims to have suf-
fered a legal wrong because of agency action is entitled to judicial

12
review of that action. 5 U.S.C. § 702. The waiver of sovereign immu-
nity in the APA is limited to suits seeking relief"other than money
damages." Id. In addition, review under the APA is available only for
"final agency action for which there is no other adequate remedy in
a court." 5 U.S.C. § 704 (emphasis added). This limitation has been
interpreted to preclude review under the APA when a plaintiff has an
adequate remedy by suit under the Tucker Act. See, e.g., Alabama
Rural Fire Ins. Co. v. Naylor, 530 F.2d 1221, 1230 (5th Cir. 1976)
("Section 704 of the APA provides that judicial review is inappropri-
ate where there exists some other adequate remedy in a court, and the
availability of a remedy in the Court of Claims under the Tucker Act
has been held to be an adequate remedy."); see also Bowen v.
Massachusetts, 487 U.S. 879, 901 n.31 (1988) ("[S]uits under the
Tucker Act in the Claims Court offer precisely the sort of `special and
adequate review procedures' that § 704 requires to direct litigation
away from the district courts."). Therefore, to determine whether
Plaintiff's suit is cognizable under the APA, the court must first
examine whether he has an available remedy under the Tucker Act.

The Tucker Act actually consists of two parts: 28 U.S.C. § 1491,
and 28 U.S.C. § 1346(a)(2), which is commonly known as the "Little
Tucker Act." The Tucker Act grants jurisdiction to the United States
Court of Federal Claims "to render judgment upon any claim against
the United States founded either upon the Constitution, or any Act of
Congress or any regulation of an executive department, . . . or for liq-
uidated or unliquidated damages in cases not sounding in tort." 28
U.S.C. § 1491. The Little Tucker Act makes the jurisdiction of the
Court of Federal Claims concurrent with the district court for civil
actions or claims against the United States for $10,000 or less. 28
U.S.C. § 1346(a)(2). If a plaintiff's claim is for more than $10,000,
he must bring the action in the Court of Federal Claims.8 See United
States v. Hohri, 482 U.S. 64, 67 n.1 (1987).
_________________________________________________________________
8 It is not clear from Plaintiff's complaint whether this case would sat-
isfy the jurisdictional amount requirement of 28 U.S.C. § 1346(a)(2),
because the complaint contains no prayer for a specific amount of mone-
tary damages. A plaintiff can waive damages in excess of $10,000 to
remain in district court, see, e.g., Hahn v. United States, 757 F.2d 581,
587 (3d Cir. 1985); however, there is no indication that Plaintiff has done
so here.

13
The district court rejected Plaintiff's use of the Tucker Act to
establish jurisdiction in this case, because the court concluded that his
claims were primarily for equitable relief. J.A. at 83. The court deter-
mined that Plaintiff's claim for money damages in the form of back
pay was merely subordinate to his equitable claims. Although the
actual language of the Tucker Act does not specifically prohibit the
Court of Federal Claims from issuing injunctive relief, the United
States Supreme Court has recognized, as a general rule, that "the
Court of [Federal] Claims has no power to grant equitable relief."
Richardson v. Morris, 409 U.S. 464, 465 (1973) (per curiam). The
Tucker Act does, however, authorize courts to award injunctive relief
in limited circumstances, when such relief is necessary to provide an
entire remedy and when the injunction is "an incident of and collateral
to" an award of monetary relief. 28 U.S.C. § 1491(a)(2).9

The district court is correct in its assessment that Plaintiff's claim
for injunctive relief is the essence of his complaint. The injunctive
relief requested by Plaintiff would not be available under the Tucker
Act because it would not be an incident of, or collateral to, a mone-
_________________________________________________________________
9 The relevant portion of the statute provides:

To provide an entire remedy and to complete the relief
afforded by the judgment, the court may, as an incident of and
collateral to any such judgment, issue orders directing restoration
to office or position, placement in appropriate duty or retirement
status, and correction of applicable records, and such orders may
be issued to any appropriate official of the United States. In any
case within its jurisdiction, the court shall have the power to
remand appropriate matters to any administrative or executive
body or official with such direction as it may deem proper and
just.

28 U.S.C. § 1491(a)(2). This language authorizing injunctive relief in
limited circumstances does not appear in the Little Tucker Act; however,
it is generally recognized that district courts have authority under the
Mandamus Statute, 28 U.S.C. § 1361, to order the same type of injunc-
tive relief as the Court of Federal Claims. See 1 Moore's Federal Practice
¶ 0.65[2.-3], at 700.111; see also Richardson v. Morris, 409 U.S. at 466
("`[T]he Tucker Act did no more than authorize the District Court to sit
as a court of claims . . . .'") (quoting United States v. Sherwood, 312 U.S.
584, 591 (1941)).

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tary award. See Adkins v. United States, 68 F.3d 1317, 1324 n.9 (Fed.
Cir. 1995) ("[T]he Court of Federal Claims was without authority
[under the Tucker Act] to direct the Secretary[of the Army] to pro-
mote [plaintiff] to the rank of colonel because such relief would not
be subordinate or collateral to a monetary award."). Indeed, Plaintiff's
claim for back pay10 would only arise if Plaintiff's request for retroac-
tive promotion were granted.

This case is different from a case where the plaintiff brings an
action to review the decision of a board for the correction of military
appeals after he has already been discharged from the service. See,
e.g., Sanders v. United States, 594 F.2d 804, 810 & n.10 (Ct. Cl.
1979) (en banc). In such a case, a successful plaintiff has a cause of
action for back pay from the date of his discharge to the date of the
court's determination. See id. Here, by contrast, Plaintiff has no pres-
ent claim for back pay because he is still serving in the Army without
a loss of his position or pay.

The district court would have no authority to order the Secretary
of the Army to promote Plaintiff to Lieutenant Colonel. As the United
States Court of Appeals for the Federal Circuit recently recognized in
a case factually similar to the instant case, a plaintiff's "prayer that
the Court of Federal Claims direct the Secretary to promote him to the
rank of colonel plainly was a request for impermissible `interfer[ence]
with legitimate Army matters.' Courts will not interject themselves
into the promotion process." Adkins, 68 F.3d at 1324 (quoting Orloff
v. Willoughby, 345 U.S. 83, 94 (1953)); see also Voge v. United
States, 844 F.2d 776, 780 (Fed. Cir.) ("This is like thousands of other
routine personnel decisions regularly made by the services which are
_________________________________________________________________
10 There is considerable uncertainty about whether an award of back
pay is considered money damages or a form of equitable relief for pur-
poses of determining whether such claims are cognizable under either the
APA or the Tucker Act. In Bowen v. Massachusetts , 487 U.S. 879
(1988), the Supreme Court stated that "an order providing for the rein-
statement of an employee with backpay" is a form of equitable relief, not
damages at law. Id. at 893. In Ulmet v. United States, 888 F.2d 1028 (4th
Cir. 1989), this court arguably adopted the Bowen Court's dictum and
stated that an action for back pay was not exclusively within the Tucker
Act. Id. at 1030-31.

15
variously held nonjusticiable or beyond the competence or the juris-
diction of the courts to wrestle with."), cert. denied, 488 U.S. (1988).
The only possible relief that Plaintiff could get in this case would be
for the district court to order that Plaintiff's military records be cor-
rected and to remand the case for another review in due course by the
appropriate promotion selection board. Because Plaintiff cannot
receive a court-ordered retroactive promotion, there is no basis for
back pay in this case and, therefore, no monetary damages on which
to premise jurisdiction under the Tucker Act. Accordingly, the district
court correctly concluded that the Tucker Act does not apply in this
case. Since Plaintiff has no other adequate remedy in a court, review
of his case is proper under the APA.

B.

Although the district court did not adequately articulate the basis
for its jurisdiction in this case, it correctly analyzed the merits of
Plaintiff's final cause of action. The district court granted summary
judgment for Defendants on Plaintiff's claim that the Army failed to
follow its own regulations in reviewing his request for correction of
his military records.

We review a grant of summary judgment de novo , employing the
same standards used by the district court. Swanson v. Faulkner, 55
F.3d 956, 964 (4th Cir.), cert. denied, 116 S. Ct. 417 (1995).

The district court's review of the ABCMR's decision is quite lim-
ited. As the district court properly recognized, such decisions can be
set aside only "if they are arbitrary, capricious, or not based on sub-
stantial evidence." Chappell v. Wallace, 462 U.S. 296, 303 (1983);
Robbins v. United States, 29 Fed. Cl. 717, 725 (1993) ("The function
of the court is not to reweigh the evidence presented to the ABCMR.
Rather, the court is charged with determining `whether the conclusion
being reviewed is supported by substantial evidence.'") (quoting
Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir. 1983)).

After carefully reviewing Plaintiff's allegations and the record
below, we agree with the district court's ruling that the facts, taken
in the light most favorable to Plaintiff, cannot support a finding that
the ABCMR acted arbitrarily or capriciously, or without substantial

16
evidentiary support, in denying Plaintiff's requests. Therefore, we
determine that the district court was correct in granting Defendants'
motion for summary judgment as to Plaintiff's third cause of action.

V.

For all of the foregoing reasons, the order of the district court
granting Defendants' motion to dismiss or, in the alternative, for sum-
mary judgment, is hereby

AFFIRMED.

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