VICTORIA M. VOGE, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-81

   In the Supreme Court of the United States

   October Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Federal Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Opinions Below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the Claims Court (Pet. App. 21a-33a) is reported at
11 Cl. Ct. 510.  The opinion of the court of appeals (Pet. App.
5a-15a) is reported at 844 F.2d 776.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 16a) was entered on
April 19,1988.  A petition for rehearing was denied on May 26, 1988
(Pet. App. 3a-4a).  The petition for a writ of certiorari was filed on
July 14, 1988.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the Claims Court lacked jurisdiction to review petitioner's
military service records where there was no monetary claim at issue
whose resolution depended upon a review of those records.

                               STATEMENT

   1. Petitioner is now serving on active duty as a commander in the
Medical Corps, United States Navy.  In 1981, petitioner was assigned
to the Naval Regional Medical Center on Guam.  Upon arrival, she was
granted temporary clinical privileges as a flight surgeon.  Those
temporary privileges were subsequently revoked, however, and her
application for permanent clinical privileges was denied after doubts
arose concerning her medical competence.  The revocation and denial of
petitioner's clinical privileges, as well as the underlying concerns
as to her competence, were reflected in three adverse fitness reports
covering periods between October 31, 1981, and March 31, 1983.  Pet.
App. 6a.

   In 1982, petitioner sought additional special pay (ASP), an extra
renumeration that a medical officer normally receives after executing
an agreement to remain on active duty for at least one year.  See 37
U.S.C. 302(c)(1).  Based on the denial of clinical privileges and the
adverse fitness reports, petitioner's commanding officer recommonded
that her request be denied for the period from July 1, 1982, until
June 30,1983.  A review board approved that recommendation and further
determined that petitioner should be denied ASP from July 1, 1983,
until June 30, 1985, after she completed a course of retraining.  In
addition, petitioner was passed over for promotion to Captain in 1986.
 Pet. App. 6a.

   Petitioner sought relief from the Board for the Correction of Naval
Records (BCNR) pursuant to 10 U.S.C. 1552.  /1/ The Board recommended
correction of portions of two adverse fitness reports but "concluded
that the (reports) were otherwise not "substantially erroneous or
unfair" and that (petitioner's) selection for promotion would have
been "unlikely" even with the corrections to her records." Pet. App.
6a.  Based on this recommendation, the Secretary of the Navy approved
the deletion of specific references to pending adminstrative action in
one of her fitness reports and removal of another report, but denied
petitioner's other requests for relief (ibid.).

   2. Petitioner then instituted this action in the Claims Court,
seeking essentially the same relief that she had sought from the BCNR.
 Based upon procedural errors in the denial of petitioner's ASP, /2/
the United States did not oppose the Claims Court's issuance of a
judgment for three years' worth of retroactive ASP in the amount of
$30,000 (Pet. App. 25a).  The United States moved for dismissal of
petitioner's remaining claims on the grounds that they were beyond the
jurisdiction of the Claims Court.

   The Claims Court granted judgment for petitioner in the amount of
$30,000.  The court further held that it had jurisdiction to review
petitioner's service records pursuant to its review of the denial of
ASP.  After reviewing the administrative record, the court found no
error in the "preparation or composition" of the fitness reports that
the BCNR had refused to void and declined to "second guess" the
judgments of petitioner's superiors, reflected in the fitness reports
and the denial of clinical privileges, as to her medical and military
competence.  The court further held that petitioner had no right to
reconsideration of her nonselection for promotion to Captain.  The
court accordingly denied any further relief.  Pet. App. 26a-33a.

   3. The court of appeals affirmed the Claims Court's judgment for
ASP, but vacated that part of the Claims Court's decision that
purported to review petitioner's military records.  The court
concluded that the substantive merits of the military's decision to
deny petitioner ASP were not justiciable since "Congress statutorily
entrusted (that decision) to the discretion of the military" and the
courts may not second guess "routine personnel decisions regularly
made by the military." Pet. App. 9a-11a.  The court of appeals
therefore concluded that the Claims Court had no jurisdiction, in the
context of reviewing the procedures employed to deny ASP, to review
the denial of clinical privileges and the adverse fitness reports upon
which the military based its decision to deny petitioner ASP (id. at
8a-12a).

   The court further held that the various record corrections sought
by petitioner were not "an incident of (or) collateral to" (28 U.S.C.
1491(a)(2)) her monetary entitlement to ASP and hence were beyond the
jurisdiction of the Claims Court.  "The regularity of her military
records and the actions of her superiors in evaluating her performance
as a doctor and officer," the court concluded (Pet. App. 13a), are
"entirely unrelated" to the question whether "in the ASP termination
decision the military followed its own regulations." Since petitioner
sought no monetary relief based on the alleged errors in her military
record, the court of appeals concluded that the Claims Court had no
jurisdiction to conduct a general review of those records.  In any
event, the court stated (id. at 14a), the Claims Court cannot "do
indirectly what it is foreclosed from doing directly.  By considering
her service records for error in their "preparation or content," the
court of appeals held (ibid.), "the Claims Court was passing on the
merits of the decision to deny ASP which was first and last for the
Navy."

                               ARGUMENT

   The decision of the court of appeals is correct.  It does not
conflict with any decision of this Court or any other court of
appeals.  Accordingly, no further review is warranted.

   The court of appeals correctly held that, in the course of
reviewing the denial of ASP, the Claims Court could not review the
discretionary assessments of petitioner's military and professional
performance as reflected in her fitness reports and in the decision to
deny her clinical privileges.  Subsection 302(c)(2) of Title 37
provides that "(u)nder regulations prescribed by the Secretary of
Defense * * *, the Secretary of the military department concerned may
terminate at any time an officer's entitlement to (ASP)." Secretary of
the Navy Instruction 7220.75A (Apr. 23,1982) provides that the Surgeon
General of the Navy may terminate ASP by approving the recommendation
of a review board that the officer's "professional performance is
inadequate to justify continuing payment of special pay" (Pet. 3).
Neither the statute nor the implementing regulation provides a
substantive standard governing the denial of ASP;  the decision is
left solely to the discretion of the Navy.  There is, therefore, "no
meaningful standard against which (a reviewing court could) judge the
agency's exercise of discretion." Webster v. Doe, No. 86-1294 (June
15, 1988), slip op. 6 (quoting Heckler v. Chaney, 470 U.S. 821, 830
(1985)).

   The Navy consented to the entry of judgment for petitioner for ASP
for the period from July 15, 1982, through June 30, 1985.
Petitioner's entitlement to ASP for that period, however, rested
exclusively upon the failure of officials to follow proper
administrative procedures to terminate that entitlement.  See German
v. United States, 633 F.2d 1369 (Ct. Cl. 1980) (medical officer
entitled to Variable Incentive Pay where determination to deny that
pay was based upon consideration of improper matters).  Although the
Claims Court could properly review the decision to deny petitioner ASP
for procedural irregularities, the Court lacked jurisdiction to review
the substantive merits of that determination.  The Claims Court,
therefore, lacked any justification for reviewing petitioner's
underlying military and professional records incident to its review of
petitioner's claim for ASP.  /3/

   Courts have traditionally and properly been reluctant to intervene
in any matter that "goes directly to the "management" of the military
(and) calls into question basic choices about the discipline,
supervision, and control of a serviceman." United States v. Shearer,
473 U.S. 52, 58 (1985).  The "complex, subtle, and professional
decisions as to the composition, training, equipping, and control of a
military force are essentially professional military judgments,
subject always to civilian control of the Legislative and Executive
Branches." Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (emphasis
omitted).  On such matters, it is not appropriate for a "civilian
court to second-guess military decisions." United States v. Shearer,
473 U.S. at 58.  Indeed, "it is difficult to conceive of an area of
governmental activity in which the courts have less competence."
Gilligan v. Morgan, 413 U.S. at 10.

   In view of these principles, it would be plainly inappropriate for
a court to use a discretionary judgment to deny ASP as a window
through which to conduct a general review of a military officer's
service record.  In the military context, this Court has always looked
for an express mandate before exercising its jurisdiction in a way
that might interfere with the smooth functioning of the military.
See, e.g., Feres v. United States, 340 U.S. 135 (1950) (declining to
apply Federal Tort Claims Act to suits by servicemen for
service-related injuries);  Orloff v. Willoughby, 345 U.S. 83 (1953)
(declining to review propriety of duty assignment);  Burns v. Wilson,
346 U.S. 137, 142, 144 (1953) (plurality opinion) (giving narrow
interpretation to scope of federal habeas corpus relief available to
servicemen);  Gilligan v. Morgan, 413 U.S. at 10 (declining to assume
jurisdiction over training, weaponry and orders of National Guard);
Schlesinger v. Councilman, 420 U.S. 738, 757-758 (1975) (limiting
ability of servicemen to obtain injunctive relief for alleged wrongs,
including constitutional violations);  Chappell v. Wallace, 462 U.S.
296 (1983) (refusing to permit military personnel to maintain suit to
recover damages from a superior officer for alleged constitutional
violations);  Department of the Navy v. Egan, No. 86-1552 (Feb. 23,
1988) (declining to permit Merit Systems Protection Board, in the
course of reviewing an adverse action suffered by a civilian employee
of the Navy, to review security clearance determinations made by the
Navy).  The court of appeals thus correctly concluded that, in the
course of reviewing the denial of ASP for procedural propriety, the
Claims Court was without jurisdiction to review the discretionary
assessments of petitioner's military and professional performance as
reflected in her fitness reports and in the decision to deny her
clinical privileges.

   In any event, even if the Claims Court would ordinarily have
jurisdiction to review the substantive merits of a decision to deny
ASP, there was no occasion for the Claims Court to reach that question
in this case because of its resolution of the procedural issue.
Following the Navy's confession of procedural error, petitioner
received complete relief for her loss of ASP.  There was, therefore,
no occasion for the Claims Court even to reach the question of whether
the denial of ASP was arbitrary and capricious and, hence, no occasion
for the Claims Court to examine the denial of clinical privileges and
the adverse fitness reports that led to the denial of ASP.  Petitioner
cannot be heard to complain that, although she received complete
relief in the form of restoration of lost ASP, the courts below
granted that relief without reaching the grounds she advanced.

   Petitioner correctly notes (Pet. 19-20) that in Chappell v.
Wallace, 462 U.S. at 303, this Court stated that BCNR decisions are
generally subject to judicial review and can be set aside if they are
arbitrary or capricious.  Petitioner, however, did not bring suit in
district court seeking review of the decision of the BNCR declining to
make requested changes in her military records.  Rather, petitioner
sought a money judgment in the Claims Court for the loss of ASP, and
the court of appeals properly concluded (Pet. App. 12a-14a) that a
general review of her service records was not "incident of and
collateral to" that issue within the meaning of 28 U.S.C. 1491(a)(2).

   In United States v. Testan, 424 U.S. 392, 404 (1976), this Court
held that 28 U.S.C. 1491(a)(2) (permitting the Court of Claims to
grant relief "incident of and collateral to" money judgment) did not
expand the jurisdiction of the Tucker Act to encompass claims not
based upon some statute or regulation that mandates compensation.
Petitioner's entitlement to ASP under 37 U.S.C. 302(c)(2) depended
solely upon the procedural irregularities in the discretionary
determination made to deny her ASP.  The corrections she sought to her
underlying military records were wholly unrelated to that question.
Thus, the Claims Court lacked jurisdiction to entertain petitioner's
requests for changes in her military record, notwithstanding the
jurisdiction of the BCNR to entertain those requests.  The court of
appeals properly rejected (Pet. App. 14a) petitioner's contention that
the Tucker Act jurisdiction of the Claims Court is coextensive with
the BCNR's broad equitable jurisdiction to correct military records
pursuant to 10 U.S.C. 1552.  /4/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   JOHN R. BOLTON

      Assistant Attorney General

   ANTHONY J. STEINMEYER

   JOHN S. GROAT

      Attorneys

   OCTOBER 1988

   /1/ Petitioner requested that her Naval records be corrected (1) to
delete references to actions taken to revoke and deny her clinical
credentials;  (2) to reflect favorable action upon her request for
permanent clinical credentials;  (3) to delete all references to two
psychiatric evaluations;  (4) to remove adverse fitness reports;  (5)
to show that she was entitled to ASP;  and (6) to order her considered
by a special promotion board for promotion to Captain.  Pet. App. 24a.

   /2/ Specifically, the review board passing on petitioner's request
for ASP considered information beyond that prescribed in Navy
regulations, which confine review of the officer's performance to
fitness reports issued as of the date of the agreement entitling the
officer to ASP;  supporting documents;  a letter from the officer's
commanding officer;  and the officer's rebuttal, if any.  In this
instance, the review board apparently had a copy of petitoner's entire
file, which included a fitness report subsequent to the date on which
she became eligible for ASP.  Pet. App. 26a.  Furthermore, for the
period from July 1, 1983, through June 30,1985, petitioner's
commanding officer never made an official recommendation that she
should be denied ASP.  That separate recommendation is required by
Navy regulations, notwithstanding the review board's determination to
deny petitioner ASP for that period.  Pet. App. 7a.

   /3/ Petitioner does not claim that the denial of ASP -- or the
decision to deny clinical privileges -- violated any substantive
constitutional rights.  Thus, the Court's recent decision in Webster
v. Doe, supra (recognizing APA review for colorable constitutional
claims even where decision is otherwise "committed to agency
discretion by law" within the meaning of 5 U.S.C. 701(a)(2)), has no
bearing on this case.

   /4/ In any event, although BCNR decisions are generally reviewable,
the mere fact that an otherwise nonjusticiable claim has first been
passed on by the BCNR should not transform it into a justiciale claim.
 The restrictions on the justiciability of claims raised by servicemen
noted above (pp. 7-8 supra) should apply whether the case is brought
directly to federal court or indirectly on review of a BCNR decision.
Thus, petitioner' attempt to challenge simply the correctness -- as
opposed to the constitutional validity (see n.3, supra) -- of the
denial of clinical privileges would fail, in our view, even in a suit
brought in district court on review of the BCNR decision as an
impermissible judicial challenge to the propriety of a duty
assignment.  See Orloff v. Willoughby, supra.  Of course, that
question is not presented here.