Oliver Donovan Ulmet v. United States of America John O. Marsh, Jr., in His Capacity as Secretary of the Army

888 F.2d 1028, 1989 U.S. App. LEXIS 16321, 1989 WL 128510
Court of Appeals for the Fourth Circuit·Decided October 31, 1989·No. 88-2593·Published·Cited by 24 cases

Opinions

BUTZNER, Senior Circuit Judge:

Lieutenant Colonel Oliver D. Ulmet appeals from the district court’s dismissal of his complaint seeking interlocutory equitable relief. Ulmet requested the court to issue an injunction or writ of mandamus ordering the United States Army to pay him back retirement salary and benefits which he claims are due him under a mandate from the Court of Appeals for the Federal Circuit. Although the district court ruled that it had jurisdiction over Ulmet’s claim, it declined to exercise it and dismissed Ulmet’s complaint. We affirm.

I

This controversy originated in the Claims Court in 1985 when Ulmet, an officer in the Army Reserve, challenged the Army’s interpretation of a statute pertaining to retirement of reserve officers. Title 10 U.S.C. § 1163(d), known as the “sanctuary provision,” which at the time he brought this action provided that a soldier in the Army reserve who is on active duty and is within two years of becoming eligible for retired pay under the military retirement system may not be released from that duty before he becomes eligible for retired pay unless release is approved by the Secretary.

The dispute in the Claims Court concerned the definition of “active duty.” Ul-met had accrued 15 years, 3 months, and 7 days of active service in the regular Army. When Ulmet was involuntarily released from active duty in 1973, he continued to serve in the Reserve, participating in several periods of what the Army classified as “active duty for training.” Ulmet contended that those periods constituted active duty within the meaning of § 1163(d) and added an additional three years of active duty to his service record. Ulmet argued that he was therefore entitled to the sanctuary provision of § 1163(d). The Army disagreed with Ulmet and released him from active duty in 1983. Ulmet sued the Army in Claims Court under the Tucker Act, 28 U.S.C. § 1346. The Claims Court sustained the Army’s position, but the Federal Circuit reversed. Ulmet v. United States, 822 F.2d 1079 (Fed.Cir.1987). Upon review of the legislative history of § 1163(d) and other applicable provisions, the Federal Circuit concluded that active duty included “active duty for training.” 822 F.2d at 1083-87. The court remanded to the Claims Court for calculation of the relief due to Ulmet. Apparently, Ulmet and the Army disagree on the appropriate formula for computing the relief. While the case was pending before the Claims Court on remand, the Army moved to dismiss, claiming that an amendment of § 1163(d) enacted in response to the Federal Circuit’s decision in Ulmet applies retroactively to nullify the court’s mandate.1 The Army contends that the amendment corrects a codification error that purportedly misled the Federal Circuit and therefore constitutes an exception to the law of the case doctrine.

The case has been pending before the Claims Court on remand since September 1987. The Army has indicated that if the Claims Court denies its motion to dismiss, it will appeal to the Federal Circuit.

In the interim, Ulmet has been unable to obtain adequate employment and apparently has been forced to reduce his standard of living drastically. In addition, members of Ulmet’s family have required medical care which Ulmet could not afford. Ulmet petitioned the Claims Court, and the Army eventually made limited provision for medical benefits on a space-available basis at Fort Eustis hospital. Ulmet claims that [1030] these interim benefits are inferior to those due him under the Federal Circuit mandate.

Frustrated by the delay and the likelihood that the case will not be resolved for months if not years, Ulmet sought interlocutory relief in the United States District Court for the Eastern District of Virginia. In his complaint, Ulmet asked the court to issue an injunction or writ of mandamus ordering the Army to comply with the Federal Circuit’s mandate. Ulmet predicated his request on the Claims Court’s inability to order equitable relief and on a statement made by the Claims Court in a March 1988 hearing. In denying Ulmet’s request for interim relief, the Claims Court said:

[T]he retirement benefits which are real benefits cannot flow to Lt. Col. Ulmet until he is formally retired. And I can’t order them to flow to him prior to the resolution of the legal issues that we have in this ease.... We don’t have that kind of vast equitable powers around to be able to say to the Army, “Well do it anyway, because it is nice and maybe more equitable.”
If your theory is on some other than retirement duty, then you ought to be somewhere else.

Ulmet construes the Claims Court’s statements to be a recommendation that he seek to enforce the Federal Circuit’s mandate in another forum because the Claims Court lacks the power to order equitable relief.

Ruling from the bench, the district court held that although it had jurisdiction, principles of comity precluded it from granting interim relief in a case still pending before the Claims Court.

II

Ulmet asserted jurisdiction under 28 U.S.C. § 1331 (diversity) and 28 U.S.C. § 1361 (mandamus). The Army contends that neither statute confers jurisdiction on the district court. To support its claim that the district court lacked jurisdiction under § 1331, the Army cites our decision in Cook v. Arentzen, 582 F.2d 870 (4th Cir.1978). In Cook, we held that a Navy officer could not sue the Navy in federal district court under 28 U.S.C. § 1331 where the relief requested was back pay. We explained that since a request for back pay was a request for money damages, the Claims Court had exclusive jurisdiction over the case under the Tucker Act, 28 U.S.C. § 1346(a)(2).

Cook was decided before the Supreme Court’s decision in Bowen v. Massachusetts, — U.S. -, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988). In Bowen, the Supreme Court considered whether a federal district court had jurisdiction over a suit brought by the state of Massachusetts against the Secretary of the Department of Health and Human Services for the recoupment of Medicaid reimbursements. The Secretary argued that the state sought money damages against the United States and that the action was therefore within the exclusive jurisdiction of the Claims Court. The Supreme Court rejected this argument, drawing a distinction between monetary relief and money damages:

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Oliver Donovan Ulmet v. United States of America John O. Marsh, Jr., in His Capacity as Secretary of the Army, 888 F.2d 1028, 1989 U.S. App. LEXIS 16321, 1989 WL 128510 (4th Cir. 1989).

888 F.2d 1028 (Oliver Donovan Ulmet v. United States of America John O. Marsh, Jr., in His Capacity as Secretary of the Army) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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