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Small v. United States

October 14, 1998


Before Plager, Clevenger, and Gajarsa, Circuit Judges.

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

Appealed from: United States Court of Federal Claims Judge John P. Wiese United States Court of Appeals for the Federal Circuit


Walter D. Small appeals from the decision of the United States Court of Federal Claims, Small v. United States, 37 Fed. Cl. 149 (1997), holding that the use of a panel evaluation system in the officer promotion process did not contravene relevant statutory requirements (the "promotion board issue") and that the use of a prior pass-over as part of the information relied upon to determine the level of endorsement of an officer evaluation report (OER) presented a non-justiciable issue (the "officer evaluation issue"). We hold that the panel evaluation system does not violate the relevant statutory requirements and therefore affirm the decision of the trial court with respect to the promotion board issue. We also affirm the trial court's holding with respect to the officer evaluation issue.


1. The Promotion Board Issue

Mr. Small is a former major in the United States Air Force ("Air Force") who was twice passed over for promotion to the rank of lieutenant colonel and thereafter was involuntarily separated from the military upon completion of the twenty-year service period required for retirement pay eligibility. This is the so called "up or out" policy of the Air Force. Mr. Small argues that the 1986 and 1987 selection boards that considered his record for promotion were in violation of 10 U.S.C. §§ 616 & 617 because, among other things, these boards conducted their business in panels acting essentially independently, rather than in concert as a single deliberative entity.

Officers who are designated to serve on a selection board are divided into subordinate panels for their independent scoring of records and their recommendation of officers for promotion. Prior to actual scoring of records, board members are formally briefed as to the scoring procedures and then participate in a practice scoring exercise. The purpose of such exercise is to establish a uniform board standard of scoring. Following this training, the Air Force uses a reverse social security number method to distribute the records of the candidates to the various panels. Twenty individual records of the eligible candidates for promotion are sequentially assigned to each of the panels until all the records are distributed.

Individual panel members score each candidate's records separately. As soon as a panel has reviewed and scored a block of twenty candidates' records, the scores given to each candidate by the individual panel members are summed and the total score given to each candidate is then prioritized in its relative order of merit among all the candidates' scores by that panel. Each panel is assigned a proportionate share of the entire board's promotion quota. After a panel has completed scoring all of its candidates and has sequenced the records according to their relative order of merit, the panel's proportionate share of the promotion quota is then applied to the scored candidates, beginning with the highest merit score and moving down through the numerical rankings until the promotion quota is exhausted.

When a panel's proportionate quota is applied to that panel's relative order of merit and the numerical scoring level at which the promotion cut-off point occurs contains more candidates than can be accommodated within the panel's promotion quota, the candidates with the same scores are referred to as candidates in the "gray" zone. When gray zone candidates appear, the panel is required to rescore these records in order to eliminate the duplicative scores. For example, if a panel's promotion quota is 50 candidates and 45 candidates fall into score categories above the gray zone and ten candidates are in the panel's gray zone, the panel must rescore the ten gray zone candidates in order to determine the five best among the ten.

Prior to the convening of each promotion board, the eligibility criteria, method of selection, promotion quota, and statistical data are submitted to and approved by either the Secretary of the Air Force or the Assistant Secretary of the Air Force for Manpower and Reserve Affairs. At the Conclusion of each promotion board, the board formally submits a written report, pursuant to 10 U.S.C. § 617, to the Secretary of the Air Force apprising him or her of the results of the promotion board's session (the "Board Report"). Prior to signing the Board Report, each panel member must decide whether to indorse the slate of candidates selected by the individual panels. Each member must certify that the board has (1) carefully considered the record of each promotion candidate and (2) recommended for promotion only those candidates found to be the "best qualified" for promotion among the candidates considered. If a majority of the board members adopts and certifies to the foregoing, then the Board Report is finalized and presented to the Secretary of the Air Force.

Mr. Small argued below that the use of panels to make decisions for the entire selection board violated the relevant statutory provisions, which require that (1) the board make findings and recommendations regarding the candidates for promotion and (2) each member of the board certify that the officers recommended for promotion are the best qualified in the opinion of a majority of the board members. See 10 U.S.C. §§ 616 & 617. The Court of Federal Claims held that, because nothing in the statute required personal knowledge for a majority determination by the board, the panel system complied with the statutory requirements.

2. The Officer Evaluation Issue

Air Force Regulation 36-10 (Nov. 1982) ("AFR 36-10") is the administrative guideline that sets out the requirements governing the preparation and processing of OERs. This regulation contemplates an officer evaluation system keyed to the chain of command. Each officer's performance is evaluated by a "rater" (the officer's immediate supervisor), by an additional rater (the rater's rater) and by an indorser (the additional rater's rater). Commanders are given some latitude in structuring the reporting chains for their respective commands. Although raters must be identified and assigned before the closeout date of a ratee's report, this requirement of pre- identification need not be applied to the additional rater or the indorser. The regulation vests commanders with discretion in determining the level of endorsement to be applied to a given OER, ...

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