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Cathy v. United States

August 13, 1999

RICHARD J. CATHY, PLAINTIFF-APPELLANT,
v.
UNITED STATES, DEFENDANT-APPELLEE.



Before Plager, Circuit Judge, Friedman, Senior Circuit Judge, and Clevenger, Circuit Judge.

The opinion of the court was delivered by: Clevenger, Circuit Judge.

Appealed from: United States Court of Federal Claims Judge Roger B. Andewelt

Richard J. Cathy (Cathy), a retired colonel in the Chaplain Corps of the United States Air Force, appeals from the summary judgment of the United States Court of Federal Claims in favor of the government. Cathy v. United States, 41 Fed. Cl. 547 (1998). We affirm.

I.

Cathy's complaint seeks reversal of his involuntary selection for early retirement, reinstatement to active duty, back pay, attorneys' fees and costs. The facts that prompt his complaint are not in dispute.

Cathy initially was passed over for promotion from lieutenant colonel to colonel. He contested his nonselection, asserting that certain erroneous officer effectiveness reports laid the predicate for his nonselection. The Air Force Board for Correction of Military Records (AFBCMR) agreed with Cathy, corrected his records, and caused his candidacy for promotion to be reconsidered by a special selection board. A special selection board determined that Cathy deserved promotion to the rank of colonel. On October 15, 1992, the Secretary of the Air Force granted Cathy the promotion he sought, with the date of rank and effective date of November 1, 1989. Consequently, Cathy was awarded a retroactive promotion to the date upon which he would have been promoted, had he been selected, instead of nonselected, for promotion in the first place. This result is dictated by statute, which requires that an officer promoted as a result of the recommendation of a special selection board "shall, upon such promotion, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the active-duty list as he would have had if he had been recommended for promotion" in the first instance. 10 U.S.C. § 628(d)(2) (1994). For the period from November 1, 1989, until October 15, 1992, Cathy received the pay and benefits of the rank of colonel even though he had not actually performed in active duty in that rank.

Under statutory authority, see id. §§ 638, 638a, the Secretary of the Air Force on January 24, 1994, convened a Selective Early Retirement Board (SERB) to consider and recommend the mandatory early retirement of a specified number of colonels serving in the Chaplain Corps. The list of officers to be considered for mandatory early retirement must include "each officer on the active-duty list in the same grade and competitive category" whose position on the active-duty list lies between the most junior and most senior officer on the list submitted to the SERB. Id. § 638(e)(2)(A).

The active-duty list is "a single list of all officers . . . who are on active duty . . . ," id. § 620(a), and "[o]fficers shall be carried on the active-duty list . . . in the order of seniority of the grade in which they are serving on active duty." Id. § 620(b). According to 10 U.S.C. § 628(d)(2), as we noted above:

"An officer who is promoted to the next higher grade as the result of the recommendation of a special selection board . . . shall, upon such promotion, have the same date of rank, . . . and the same position on the active-duty list as he would have had if he had been recommended for promotion to that grade by the board which should have considered, or which did consider, him."

Long-standing Air Force Regulations (AFR) also specify that a person's placement on the active-duty list is determined by the order of seniority in the grade. See AFR 36-89, (A)3-1 (6 June 1990) (officer's date of rank is sole criterion used in determining position on the active-duty list). Active as well as constructive service thus dictates placement on the active-duty list. As a result of his retroactive promotion to colonel, the Air Force was required to give Cathy seniority in grade as a colonel on the active-duty list effective on November 1, 1989. When an officer is retroactively promoted upon recommendation of a special selection board, his position on the active-duty list is thus dictated by the effective date of his promotion, not the date the officer actually received the promotion.

Cathy's name appeared on a list of active duty officers to be considered for selective early retirement. In due course, the SERB concluded that Cathy be selected for mandatory early retirement. After unsuccessfully seeking relief from the AFBCMR, Cathy brought suit in the Court of Federal Claims. In a thorough and well-reasoned opinion, upon which we draw below, the court on cross motions for summary judgment rejected Cathy's complaint. Cathy timely appealed to this court, and we have jurisdiction under 28 U.S.C. § 1295(a)(3) (1994).

II.

The only issue in this case is one of statutory interpretation, which we review independently. See Weddel v. Secretary of Health & Human Servs., 100 F.3d 929, 931 (Fed. Cir. 1996). The issue concerns 10 U.S.C. §§ 638(a)(1)(B) and 638a(b)(2)(B), which provide that officers in the grade of colonel can only be considered for early retirement by a SERB if they have "served on active duty" in that grade for at least two years. *fn1

We must decide, in the setting of this case, whether the words "served on active duty" are restricted to those persons who actually engage in active duty, or whether the phrase also includes those who, while not actively engaging in duty, are treated for other significant purposes as if they were engaging in active duty. In a ...


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