Tippett v. United States
98 Fed. Cl. 171
Fed. Cl.2011Background
- This is a military pay case brought by Tippett against the United States, with defendant moving to dismiss under RCFC 12(b)(1) and 12(b)(6) and for judgment on the administrative record under RCFC 52.1.
- Tippett previously won a judgment in Tippett III (Fed. Cl. Apr. 23, 2002) following Tippett I and II on involuntary discharge, back pay, and reinstatement issues.
- The present complaint asserts two main sets of claims: (i) satisfaction delays and back pay from Tippett III and equitable relief; (ii) promotion-related pay and benefits for failure to promote to lieutenant colonel and colonel.
- The Army initially discharged Tippett for misconduct, later reinstated him and corrected records after the Federal Circuit mandate, and back pay was determined with offsets and taxes.
- ABCMR proceedings and a subsequent promotion-review process occurred, with the ABCMR denying promotion requests and the Army later considering Tippett for promotions through Special Selection Boards (SSBs) and again denying promotion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction over the promotion claim under money-mandating authority. | Tippett asserts the Military Pay Act provides money-mandating relief for promotion. | Fisher en banc and related authority require analysis of jurisdiction, with limits on promotion relief. | Jurisdiction exists for the promotion claim. |
| Whether the retirement pay claim falls within the court's jurisdiction. | Tippett seeks increased retirement pay. | No money-mandating statute supports such relief; lack of jurisdiction. | Retirement pay claim dismissed for lack of jurisdiction. |
| Whether EAJA claims are timely or ripe, and whether related expenses are recoverable. | EAJA expenses should be recoverable; timelines may be flexible. | EAJA applications untimely for Tippett III and ripeness issues for this suit. | EAJA expenses for Tippett III dismissed as untimely; EAJA claim for this suit not ripe. |
| Whether claims for equitable tax relief and offset nullification are justiciable. | Dispute over taxes and offsets should be resolved by this court. | Court lacks jurisdiction over non-monetary equitable relief and offset challenges. | Equitable tax relief and offset nullification claims dismissed for lack of jurisdiction. |
| Whether monetary sanctions or litigation expenses can be awarded under the court's inherent powers. | Requests for contempt sanctions and expenses should be recoverable. | Sovereign immunity bars monetary sanctions and expenses absent a statute. | No jurisdiction to award monetary sanctions or litigation expenses absent an express waiver. |
Key Cases Cited
- Fisher v. United States, 402 F.3d 1167 (Fed. Cir. 2005) (money-mandating status determined at jurisdictional stage; merits not controlling)
- Dysart v. United States, 369 F.3d 1303 (Fed. Cir. 2004) (promotion claims governed by statute; automatic promotion not required)
- Lewis v. United States, 458 F.3d 1372 (Fed. Cir. 2006) (jurisdiction over promotion claims; non-entitlement to automatic promotions)
- Barnes v. United States, 473 F.3d 1356 (Fed. Cir. 2007) (review of promotion procedures; not core merits determination)
- Smith v. Sec'y of Army, 384 F.3d 1288 (Fed. Cir. 2004) (promotion decisions; substantive rights and procedures)
- Metz v. United States, 466 F.3d 991 (Fed. Cir. 2006) (money-mandating status and Tucker Act jurisdiction)