Ulmet v. United States

19 Cl. Ct. 527, 1990 U.S. Claims LEXIS 65, 1990 WL 15927
CourtUnited States Court of Claims
DecidedFebruary 22, 1990
DocketNo. 470-85C
StatusPublished
Cited by11 cases

This text of 19 Cl. Ct. 527 (Ulmet v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ulmet v. United States, 19 Cl. Ct. 527, 1990 U.S. Claims LEXIS 65, 1990 WL 15927 (cc 1990).

Opinion

ORDER

HORN, Judge.

This case, which has a long and overly tortured history, once again appears to be ready for disposition at the trial level.1 To be sure, the parties have carefully preserved their respective rights to appeal this court’s decision to the United States Court of Appeals for the Federal Circuit, and indeed such is their right. Nonetheless, this is a case in which the lawyers and bureaucrats perhaps should step back and take a moment to consider that at the center of all the legal maneuverings and bureaucratic calculations, the plaintiff still waits for a final resolution of his claims. Part of the delay is certainly due to the overburdened bureaucracy and judiciary and the fact that all cases filed with the court and pending in the bureaucracy need to be handled as expeditiously as possible, but largely in chronological order of ripeness for attention and decision. Yet, in this case there also is clearly evident a hardening of positions by the parties, accusations of bad faith, gamesmanship, and in general an inability of the parties to deal with one another in a comfortable manner.2

The relationship deteriorated to the point that plaintiff’s attorney felt that it was appropriate to file a Motion for Sanctions for Discovery Default, filed in response to the defendant’s Motion for a Protective Order, dated November 16, 1988, and plaintiff also filed a Motion for Sanctions and for Order to Show Cause Why the Army [529]*529Should Not be Held in Contempt on August 25, 1988, as part of his opposition to the defendant’s Motion to Dismiss. In the second motion for sanctions, plaintiff's counsel argued that the Motion to Dismiss, filed by the defendant’s counsel on August 2, 1988, late in the case, constituted an act of bad faith. Defendant filed its Reply to Plaintiff’s Response and Motion for Sanctions and to Show Cause on September 15,1989.3

From early in the case, this court has felt that, although the issues of law presented in the case could be resolved by the court, and the court attempted to do so in the Opinion issued on July 25, 1989, unless the damages calculations were arrived at through negotiations between the parties, this case would never be resolved with any finality and the parties would continue to bicker about the exact dollars, or formula to compute such dollars, to be included in LTC Ulmet’s pension and benefits package. Therefore, in this court’s July 25, 1989, Opinion, the court ordered as follows:

(a) Plaintiff is entitled to the correction of his military records to reflect active duty from September 30,1983 to October 31, 1985, and is entitled to back payment for that period of time, including basic pay, basic allowance for quarters at the with dependents rate, basic allowance for subsistence, the variable housing allowance, and annual leave pay, all at appropriate rates applicable to the location where the plaintiff was assigned to duty prior to his improper release.
(b) Plaintiff is entitled to receive back retirement pay beginning the first day of plaintiff’s constructive retirement, November 1, 1985.
(c) The plaintiff is entitled to be reimbursed for medical expenditures associated with medical services performed for the plaintiff, himself, during the constructive, active duty period. The plaintiff is not entitled to direct reimbursement from the defendant for all medical expenses associated with his spouse and dependents. The court also orders the defendant to process through the CHAMPUS insurance service and reimburse the plaintiff for medical expenses associated with the medical bills attached to his April 26, 1988 filing, as well as for those bills for which the plaintiff serves copies upon the defendant within ten days of the issuance of this opinion, which are properly subject to reimbursement under applicable statutes, regulations and guidelines.
(d) The defendant may not set off the plaintiff’s civilian earnings, which he received during the period of constructive, active duty, from the award outlined in (a), (b) and (c) above, unless such earnings were received for work inconsistent with plaintiff’s military service under applicable statutes and regulations.
(e) The defendant may set off against the gross award described in (a), (b) and (c):
(i) plaintiff’s retired pay earnings received during his constructive retirement while performing active duty service.
(ii) $11,250.00, 75% of the $15,000.00 separation pay received by the plaintiff at the time of his involuntary release from the Army in 1973;
(iii) any other debts the plaintiff owes to the defendant for government entitlement or benefits received by the plaintiff which, upon his constructive reinstatement to active duty and retirement, he would be required to reimburse the defendant, including the type of debts discussed by the Claims court in Laningham v. United States, 5 Cl.Ct. 146, 157 (1984);
(iv) all applicable federal income taxes required to be withheld on the gross recovered amount.

Ulmet v. United States, 17 Cl.Ct. 679, 710 (1989).

The court also ordered that plaintiff is entitled to a judgment amount, which, when calculated, will reflect the net items of (a) through (e) above. Id. In order to fully dispose of the case, the court required the parties to submit numerous items. [530]*530First, since a calculation would be required from the Department of the Army to help determine the precise amounts to which the plaintiff is entitled, the court issued a “Call” to the defendant, addressed to the Secretary of the Army, pursuant to 28 U.S.C. § 2507(a)(1982), and Rule 34(d)(1)(B) of the Rules of the United States Claims Court, to make the appropriate computations in schedule form and to file the schedule with the court, on or before the expiration of 30 days from the issuance date of the Opinion. Id. Second, within 15 days after the Clerk of the United States Claims Court had served notice of the filing of the computed schedule, each party was to file with the court its acceptance or rejection of the computation. Any objection(s) were to be accompanied by a specific statement, including the reasons for the rejection, along with the appropriate authoritative support. Id. The court then noted that following the aforementioned submission, the court would issue an order requesting the clerk to enter judgment in favor of the plaintiff for a specific, net dollar amount. Id. at 710-11.

Subsequent to the issuance of the court’s Opinion on July 25, 1989, the following events occurred. On July 26, 1989, plaintiff finally submitted a response to an Army calculation, which had been submitted by the Army on April 26, 1988, in response to the court’s April 4,1988 Order, which had requested information on LTC Ulmet’s official retirement date and the formula defendant proposed to use to calculate plaintiff’s entitlements to retirement and/or back pay.

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Cite This Page — Counsel Stack

Bluebook (online)
19 Cl. Ct. 527, 1990 U.S. Claims LEXIS 65, 1990 WL 15927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ulmet-v-united-states-cc-1990.