Guy v. United States

20 Citing cases

  1. Hary v. United States

    618 F.2d 704 (Fed. Cir. 1980)   Cited 30 times
    In Hary v. United States, 618 F.2d 704 (Ct.Cl. 1980), the officer was passed over for promotion in the Air Force and separated from active duty. He sought relief from the Air Board, alleging that certain OERs in his record were erroneous, requiring their removal from his record and resubmission of his case to other selection boards.

    It is by now established in this court that such a claimant seeking back pay on account of a separation or relief from active duty must show both that (a) there was a material legal error or an injustice in the proceedings of the correction board, or other entity within the military department, which led to the adverse action against him, and also (b) that there is an adequate nexus or link between the error or injustice and the adverse action ( e.g., passover and non-selection for promotion). See Sanders v. United States, 219 Ct.Cl. ___, ___, 594 F.2d 804, 818 (1979); Skinner v. United States, 219 Ct.Cl. ___, ___, 594 F.2d 824, 828 (1979); Riley v. United States, 221 Ct.Cl. ___, ___, 608 F.2d 441, 443, 444 (1979); Guy v. United States, 221 Ct.Cl. ___, ___ 608 F.2d 867, 872-74, 875 (1979). To recover back pay, it is not enough for the plaintiff to show merely that an error or injustice was committed in the administrative process; he must go further and either make a showing that the defect substantially affected the decision to separate him or relieve him from active duty, or at least he must set forth enough material to impel the court to direct a further inquiry into the nexus between the error or injustice and the adverse action.

  2. Engels v. United States

    678 F.2d 173 (Fed. Cir. 1982)   Cited 18 times
    In Engels, plaintiff challenged the failure to include in his record a glowing letter of evaluation. 230 Ct Cl. at 474, 678 F.2d at 178-79.

    Officers claiming in this court that they have been improperly selected out, after passovers, must first show that the service committed a legal error (or perhaps a serious injustice). See Horn v. United States, Ct.Cl., 671 F.2d 1328 (1982); Evensen v. United States, 228 Ct.Cl. ___, 654 F.2d 68 (1981); Grieg v. United States, 226 Ct.Cl. ___, 640 F.2d 1261 (1981); Gruendyke v. United States, 226 Ct.Cl. ___, 639 F.2d 745 (1981); Hary v. United States, 223 Ct.Cl. ___, 618 F.2d 704 (1976); Guy v. United States, 221 Ct.Cl. ___, 608 F.2d 867 (1979); Riley v. United States, 221 Ct.Cl. ___, 608 F.2d 441 (1979); Doyle v. United States, 220 Ct.Cl. 285, 599 F.2d 984 (1979), cert. denied, 446 U.S. 982, 100 S.Ct. 2961, 64 L.Ed.2d 837 (1980); Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804 (1979); Skinner v. United States, 219 Ct.Cl. 322, 594 F.2d 824 (1979). Thus far, the court has taken account in passover cases of only those injustices (falling short of error) which have been expressly recognized as such by a Correction Board, but the court has also reserved the possibility of recognizing very serious injustices not accepted as such by the boards (so long as the claimant sought monetary relief within our jurisdiction).

  3. Qualls v. United States

    678 F.2d 190 (Fed. Cir. 1982)   Cited 14 times
    Denying plaintiffs veterans' preference claim because plaintiff's status as a 5-point veteran did not entitle him to any preference over non-veteran employee in competition for promotion as " veteran is entitled to preference over non-veterans only in connection with an initial appointment to the federal service or in connection with a reduction-in-force among personnel in the same competitive level, neither of which was involved in the competition between the plaintiff and [the other applicant]"

    As pointed out by the trial judge, our ability to consider these matters is precluded by the often-articulated limits on our jurisdiction. The circumscription of our ability to promote a government employee and award back pay is well recognized, United States v. Testan, 424 U.S. 392, 402, 96 S.Ct. 948, 955, 47 L.Ed.2d 114 (1975); Guy v. United States, 221 Ct.Cl. 427, 439-40, 608 F.2d 867, 874 (1979), and we see no reason to repeat the trial judge's discussion of this subject. It suffices to say that plaintiff has demonstrated no clear, legal entitlement to a promotion in this case.

  4. Grieg v. United States

    640 F.2d 1261 (Fed. Cir. 1981)   Cited 20 times

    They exercised their discretion and judgment in rendering the evaluation, and their evaluation is entitled to a presumption of correctness. Hary v. United States, supra, 223 Ct.Cl. at ___, 618 F.2d at 707; Guy v. United States, 221 Ct.Cl. ___, ___, 608 F.2d 867, 870 (1979); Sanders v. United States, supra, 219 Ct.Cl. at 302, 594 F.2d at 813. The rater and indorser reiterated and reaffirmed their criticism of plaintiff's performance during the rating period in issue when they testified in this court.

  5. Kreis v. Secretary of Air Force

    406 F.3d 684 (D.C. Cir. 2005)   Cited 57 times
    Holding that an "agency must treat similar cases in a similar manner unless it can provide a legitimate reason for failing to do so" (quoting Babbitt, 92 F.3d at 1258)

    Kreis points to Board precedent that treated as evidence, not arguments, expert opinion refuting Board judgments and reasoning. See also Guy v. United States, 221 Ct.Cl. 427, 608 F.2d 867, 874 (1979). Yet in denying reconsideration, he contends, the Board "did not dispute that the declarations, deposition testimony, and statements that Major Kreis submitted were newly discovered, relevant, and not reasonably available at the time of Major Kreis's 1981 application," but instead "held them not to be evidence."

  6. Hoffman v. U.S.

    894 F.2d 380 (Fed. Cir. 1990)   Cited 14 times

    Military officers, like other public officials, are presumed to "discharge their duties correctly, lawfully, and in good faith." Guy v. United States, 608 F.2d 867, 870, 221 Ct.Cl. 427 (1979) (quoting Sanders v. United States, 594 F.2d 804, 813, 219 Ct.Cl. 285 (Ct.Cl. 1979)). Hoffman's conjectural assumptions regarding the factors that could have motivated Colonel Brashear to reject Hoffman's charge of top officer mismanagement of the Procurement Division at the 100th Air Refueling Wing do not rebut that presumption.

  7. Kreis v. Secretary of Air Force

    866 F.2d 1508 (D.C. Cir. 1989)   Cited 287 times
    Holding nonjusticiable claims for an injunction ordering retroactive promotion, but holding justiciable a claim for review of the BCMR's decision respecting the correction of military records

    Not only is that task inherently unsuitable to the judicial branch, but also Congress has vested in the Secretary alone the authority to determine whether the original selection boards erred in comparing appellant to the other candidates for promotion. See 10 U.S.C. § 628(b)(1); cf. VanderMolen v. Stetson, 571 F.2d 617 (D.C. Cir. 1977) (promotion granted by Air Force may not be rescinded by Air Force based upon illegitimate consideration); see also Guy v. United States, 608 F.2d 867, 874, 221 Ct.Cl. 427 (1979) (court cannot order promotion absent "clear, legal entitlement to it," because "[p]romotion under the selection board system results from the exercise of discretionary functions reserved for the Executive branch"). Insofar as Major Kreis seeks a retroactive promotion by judicial decree, therefore, we affirm the district court's dismissal of his case as nonjusticiable. There is also a more modest request in appellant's complaint, however.

  8. Alberico v. United States

    783 F.2d 1024 (Fed. Cir. 1986)   Cited 10 times
    Rejecting argument that generally-applicable amendment of regulation affecting plaintiff's service record constituted bill of attainder, even though amendment was "certainly inspired by his case"

    He has, however, failed to meet his burden of showing that the ABCMR's decision was arbitrary, capricious, unsupported by substantial evidence, or contrary to law. Guy v. United States, 608 F.2d 867, 870 (Ct.Cl. 1979). He has not shown harmful error in the board's failure to consider his arguments.

  9. McCartin v. Norton

    674 F.2d 1317 (9th Cir. 1982)   Cited 43 times
    Recognizing waiver of sovereign immunity with respect to EEOC employee's claims for reinstatement and consideration for promotion but stating no comparable waiver allowing a claim for damages

    Reece v. United States, 455 F.2d 240, 242 (9th Cir. 1972); see also Dilley v. Alexander, 603 F.2d 914 (D.C.Cir. 1979); Vandermolen v. Stetson, 571 F.2d 617 (D.C. Cir. 1977); McKenzie v. Calloway, 456 F. Supp. 590 (E.D.Mich. 1978), aff'd, 625 F.2d 754 (6th Cir. 1980). Guy v. United States, 608 F.2d 867 (Ct.Cl. 1979). And while there must be a "strong showing" of such "abuse" for the plaintiff to prevail, Reece, supra, 455 F.2d at 242, actions which are inconsistent with agency policy, as established by statute or regulation, can qualify as abuses of discretion.

  10. Wannamaker v. Mabus

    Case No. 3:16-cv-00549-CWD (D. Idaho Feb. 15, 2018)

    Id. Adjudication of such a challenge requires the Court to "determine only whether the Secretary's decision making process was deficient, not whether his [or her] decision was correct." Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989); see also Guy v. United States, 221 Ct. Cl. 427, 608 F.2d 867, 874 (1979) (holding that the court should not upset an agency's non-promotion decision absent "clear, legal entitlement to it," because "[p]romotion under the selection board system results from the exercise of discretionary functions reserved for the Executive branch."). If the Court sets aside the Secretary's determination not to convene a special selection board, the Court must remand the matter to the Secretary, who must provide for consideration by such a board.