*1 simultaneously with filed NAGHAN order. of Circuit
Entered with the concurrence Judge
Judge and District MURNAGHAN
TILLEY. ULMET,
Oliver Donovan
Plaintiff-Appellant, America; John O.
UNITED STATES
Marsh, Jr., capacity in his Army, Defendants-Appellees.
No. 88-2593. Appeals, Court of
United States
Fourth
Argued Feb. 1989.
Decided Oct. (Susan Smith,
John William Toothman B. Grad, Toothman, Chabot, P.C., Logan & Alexandria, brief), Va., plaintiff-ap- pellant.
Major McFetridge, Robert Office of Cook Gen., Dept, Army, Judge Advocate D.C., Hudson, Washington, (Henry E. U.S. Atty., Atty.; Szybala, Dennis E. Asst. Alexandria, brief), Va., on for defendants- appellees. MURNAGHAN, Judge,
Before Circuit BUTZNER, Judge, Senior Circuit TILLEY, Judge United States District *2 duty argued service for the Middle District of North to his record. Ulmet Carolina, sitting designation. that he sanc- was therefore entitled to the 1163(d). tuary provision Army of §
BUTZNER,
Judge:
Senior Circuit
disagreed
him
with Ulmet and released
ap-
Oliver D. Ulmet
Lieutenant Colonel
duty
from
in
active
1983. Ulmet
the
sued
of
peals from the district court’s dismissal
Army in Claims Court under the Tucker
complaint seeking
eq-
his
Act, 28 U.S.C.
1346. The Claims Court
§
requested the
uitable relief. Ulmet
court
Army’s position,
sustained the
but the Fed-
injunction
an
or
of mandamus
to issue
writ
eral Circuit reversed. Ulmet v. United
Army
ordering
pay
the
United States
States,
(Fed.Cir.1987). Upon
ed that those constituted active 1163(d) space-available duty meaning cal benefits on basis within § years hospital. added an three additional active Fort Eustis Ulmet claims 1163(d) coming eligible 10 U.S.C. Title as amended for retired retainer currently phrase provides: italicized system, purely under a regulations prescribed involuntarily Under to be released not be concerned, eligible pay, which shall be as uni- duty he becomes for that before practicable, form as a member aof reserve approved by unless release is Secre- (other component duty who is active than tary. training) years and within two of be- Cook, Navy held officer could inferior to those we these interim benefits are Navy federal district court him the Federal Circuit mandate. sue due under 1331 where the under 28 U.S.C. § delay and the likeli- Frustrated explained requested pay. We was back *3 hood case will not be resolved for that the request pay was a that since a for back sought years, months Ulmet interloc- if not request money damages, for the Claims utory in the United States District relief jurisdiction Court had exclusive over Virginia. Eastern District of Court for the Act, case under Tucker 28 U.S.C. complaint, In his the court to Ulmet asked 1346(a)(2). § injunction issue an of mandamus writ Supreme decided before the ordering Cook was comply to with the Fed- v. predicated Court’s decision in Bowen Massachu- eral Circuit’s mandate. Ulmet — setts, -, 101 request inability his on the Court’s Claims Bowen, 749 In the Su- L.Ed.2d equitable to order relief and on a statement preme whether federal Court considered a made in a March 1988 the Claims Court had jurisdiction district court over a suit hearing. denying request for In brought by the state of Massachusetts interim the Claims Court said: against Department Secretary real benefits which are retirement [T]he recoup- Health and Human Services Lt. Col. cannot flow to Ulmet benefits ment of Medicaid reimbursements. The formally And I can’t until he is retired. argued sought the state prior to flow him to the order them to damages money against the United States legal issues resolution of that we and that the action therefore within was have in this ease.... We don’t have jurisdiction exclusive the Claims equitable powers that kind of vast Supreme rejected Court. The this say Army, around to be able to argument, drawing distinction between anyway, it is “Well it because nice and do monetary money damages: relief and maybe equitable.” more recognized long cases
Our action for distinction between an at law your theory If is on some other than damages provide are intended to —which duty, ought you to then monetary compensation a victim with for else. somewhere injury person, repu- an to his property or Ulmet construes the Claims Court’s spe- an equitable tation—and action for statements to be a recommendation that he cific relief—which include order an to man- seek enforce Circuit’s providing for an the reinstatement of in forum date another because pay.... employee with back The fact power equitable order Court lacks to judicial remedy may require that a one relief. party pay money to another is not bench, Ruling from the the district court sufficient reason to characterize the re- although jurisdiction, held prin- “money damages.” had lief as precluded ciples granting it from at 2732. The Court found that S.Ct. interim in a pending relief case still before the state’s suit was the nature of an the Claims Court. equitable seeking specific action for was al- reimbursement state
II entitled, legedly already money rather than compensation for losses suffered as jurisdiction asserted under 28 Secretary’s result of the refusal to make (diversity) U.S.C. U.S.C. § held payments. The Court (mandamus). contends § had jurisdiction. district court jurisdiction statute neither confers seeking that he support Although the district court. To its claim that Ulmet insists jurisdiction court lacked under available district request injunction or writ cites our decision in Cook Arentzen, (4th Cir.1978). disguises true merely mandamus sought, Congress the relief which is back Court that intended its amend- nature of spe- In nullify and benefits. essence he seeks ment the Federal Circuit man- monetary cific relief as defined Bowen. date. that event Ulmet would be enti- properly The district court determined that tled to no It relief. would be a serious jurisdiction it had over this action. orderly interference administra- justice tion of this court to order the
Ill Ulmet interim back claims that benefits when the issue of his entitlement declining its discretion in court abused to those benefits is still before action, rely exercise Claims Court. ing upon of other Bowen and number *4 Once Ulmet’s entitlement These deci appellate federal decisions. pay and conclusively benefits is estab- scope jurisdic simply sions delineate the lished, empowered the Claims Court is in the Court and the district tion Claims 1491(a)(2) grant 28 U.S.C. full relief. recognize purely equitable that a court and 1491(a)(2) Section states that the Claims brought could in district court action may “provide remedy Court an entire and proceeding for tandem with a Claims Court complete ... the relief afforded damages. They support do not Ulmet’s judgment [and], ... as an incident of and claim that a district court intervene judgment, collateral to such issue or- a case that has decided the Federal been directing posi- ders restoration to office or on remand before Circuit tion, placement appropriate duty or re- on the basis that the Claims Court status, tirement applica- correction of acting is not with sufficient Claims Court ble records....” dispatch. agree doWe with Ulmet that jurisdic- We are convinced to retain urged eq- seek claim at the tion over Ulmet’s would strike Rather, uitable relief in district court. judicial comity. The heart of doctrine of theory court said that if Ulmet could find a comity governs relations between courts of upon request which to base his for relief sovereign the same as well as courts of duty, other than retirement he wel- was Wells, sovereigns. generally different See come to advance it in another forum. Ul- Comity The Role of the Law of Federal theory met did not assert a different before Courts, 59, (1981). 60 N.C.L. Rev.. 61 n. 5 argued the district court that the Fed- but Independent In Gregory-Portland School granting eral mandate him the Circuit’s Agency,
Dist. v. Education 576 F.2d Texas requested retirement status entitled him to (5th Cir.1978), the court ruled that the injunction ordering comity precluded one district doctrine of salary interim retirement and benefits. issuing court from an order that conflicted injunction dis- with an issued another comity orderly Principles of and the ad- trict court in the same matter. The court against justice ministration of counsel re- orderly said “considerations of taining jurisdiction over Ulmet’s claim. justice administration of demand that hold that the district court did not We nonrendering jurisdiction court decline ... dismissing its discretion in abuse parties remand the for their relief to complaint.2 rendering appar- long court so as it is AFFIRMED. remedy ent that a is available there.” 576 Shulton, (quoting Lapin F.2d at 82-83 MURNAGHAN, Judge Circuit 169, (9th Cir.1964)). dissenting: If the district court were to issue an agree I granting requested injunction Ulmet the Ul- jurisdiction to entertain LTC. certainly court had it would conflict with however, con- disagree, I
subsequent by the met’s claim. determination Claims 9, 1989, granted. February supplement appellant's record filed 2. The motion duty periods active clude served comity justify the district cerns required time for the training exercise court’s refusal to 1163(d), case in a sanctuary provision, 10 to award U.S.C. § Therefore, I wanting. sorely where it is so granted defendant’s respectfully dissent. must summary judgment. motion for States, 10 Cl.Ct. 522, v. United succinctly stated The Federal Circuit original of Ulmet’s background factual claim: States, Ulmet v. United Donovan Ul- Oliver On June (Fed.Cir.1987). Army as an States joined met the United panel A reversed Circuit soldier, appoint- and in was enlisted Court, finding plain lan- officer of ed a Reserve commissioned within the guage included statute 12, 1973, September after Army. On period duty requirement any time active Vietnam, part of a reduc- serving in Id. training. military personnel tion in the number Notwithstanding the mandate the Fed- following cessation of hostilities Circuit, litigation has in the eral continued Asia, re- involuntarily he was Southeast *5 the over the nature of Claims Court duty. had at- from active He leased Furthermore, to be accorded Ulmet. Captain, and had ac- tained the rank of months, Army challenge to days and of has mounted another years, 15 3 7
crued
relief,
claiming
to facilitate his
entitlement
to
active service.
order
Ulmet’s
$15,-
life,
change
he
subsequently
to
received
a
transition
civilian
that
enacted
pursuant
to 10
readjustment pay
statute,
periods
of
governing
exempting
000
of ac-
1981).
(1970) (repealed
687
duty
training
U.S.C.
from the time re-
tive
§
1985,
quirement
sanctuary provision
of 10
Ulmet continued
From 1973 to
Reserve,
1163(d),
partici-
the statute and
U.S.C.
“clarifies”
serve
classi-
pated
periods
opposite
in 15
of what was
result
to that reached
dictates an
duty
by
as active
for train-
fied
the Federal Circuit.
ranged
periods, which
ing. During these
Meanwhile, Ulmet has been left adrift.
year,
2
1
days
from
to over
duration
claim,
Pending
final
his
he
a
resolution of
Training Require-
he
skilled
a
became
hardship,
continues to suffer economic
de-
manager. He at-
Analysis System
ments
nied
that would accrue
benefits
Colonel,
the rank of Lieutenant
tained
duty
in either active
or retirement status.
years
of active ser-
and amassed over
granted
The one
Ulmet
concession
vice.
entitling
a letter
him
some
is
7, 1983, contending September
On
medical benefits.
years
over 18
of active
completed
he had
Ulmet,
of
alleging
equity
the absence
service,
he
requested that
be
LTC. Ulmet
see
Court,
powers
part
on
of
duty, and allowed to
retained on active
65;
Bowen Massa-
Claims Court Rule
necessary
complete
years
of service
—
chusetts,
-,
2722,
U.S.
LTC.
denied
for retirement.
2737,
(1988), brought
duty
April
tour in
Ulmet
disposition
a final
his
case.
district
quested
various extended
assignment
court, though
juris-
it had
acknowledging
requests were also denied.
tours. These
complaint,
diction
de-
to consider Ulmet’s
In this action
the United States
so, observing
taking
clined to do
Court,
sought back
LTC. Ulmet
status,
deluge
sort of action could result
in a
duty
pay, reinstatement
active
litigants
seeking
re-
duty credit
for retirement
and active
Holding
lief. The Court dismissed the action and
September
from
[sic].
appealed.
to in-
was not entitled
reservist
incalculable,
Considering
com-
the damage
irrepa-
the normal criteria of
and thus
merits,
rable.3
peting equities
legal
clearly qualified for
relief. More could
on the subject. Equi-
be said
Quite
suffering irreparable
He is
harm.
ty clearly
interim
demands
relief. The
(repre-
apart
deprivation
question
legally
is whether such relief is
only
amount,
senting
lump
not
financial
available from the district court.4
which,
course,
could
reimbursed
determines,
majority correctly
As the
date,1
security
later
but also the financial
district court has
over Ulmet’s
payments
regular
can be critical
which
claims under the rationale of Bowen v.
to an
employable
older
less
member
—
Massachusetts,
-,
S.Ct.
workforce,
and to
one
has
who
majori-
Army’s attempt
denigrate
those bene-
Army, through
proceed-
its extended
fits,2
and, indeed,
they
accept-
are valuable
ings
in the Claims
has failed to
“rights”
ed
retiree which
comply with the
mandate
importance beyond
undisput-
That
is not the case. The Federal
ed financial benefit.
grant
Circuit reversed a
of summary judg-
benefit,
important
Perhaps the most
litiga-
ment
the Claims Court. Further
treatment,
medical and dental
has been tion, e.g., considering the nature and
compensated to
some extent
an interim
appropriate
amount
preclud-
Army.
correctly
basis
But Ulmet
*6
ed.
equal
quali-
observes that this
the
does
the letter of the
While
Federal Circuit
ty
quantity
or
of
regular
care available to a
violated,
may
spirit
mandate
not be
the
is
Indeed,
nothing else, seeking
retiree.
if
certainly
The
contravened.
Federal Circuit
arrangements
under
provid-
treatment
the
practical
adjudicated,
purposes,
has
for all
by
Army
ed
undoubtedly
the
is
a bureau-
right
advantage
Ulmet’s
take
the
nightmare.
cratic
sanctuary provisions.
reserve officer
travel,
Other
free air
PX
benefits include
underlying
facts
the
are
basic entitlement
commissary privileges,
dispute.5
access to base
not in
Ulmet now
retire
seeks to
facilities,
advantage
etc.
advantageous
The financial
date
fi-
the
least
to him
considerable, perhaps
retrospect
nancially
alone is
under
application
an
the Ulmet
course,
Co.,
payments
Seilig Manufacturing
1. Of
interim
to Ulmet based
ture Co. v.
Co.,
(4th Cir.1977);
Maryland Undercoating
present
on his
be
entitlement could also
date,
(4th Cir.1979)."
recouped
government
Payne,
the
at a later
Inc. v.
1035
general principle
duplicative
he is entitled under the mandate of
is to
avoid
liti-
Id.
Ulmet, however,
gation.”
being
The issues
liti-
does not
case,
retry
gain
seek to
or to
identical
gated in the
the exact
involve
through
alternate channels. Ulmet
present
amount of back
under various
interlocutory equitable
seeks
avail-
formulae. Ulmet here seeks relief under
court,
only
able
requiring
the least
advantageous
computa-
mode of
duplicative adjudication
no
as to nature or
tion.
Indeed,
jurisdiction
amount.
“concurrent”
If relief cannot granted
it must be on
misnomer;
may
purposes
be a
basis,
jurisdictional
de
which the court
action,
remedy,
Ulmet’s sole
and conse-
nied,
principle
or
another
of law. The
quently
jurisdiction,
sole
lies in the district
avowed reason of the court was a concern
court.
litigants
that a stream of Claims Court
Judge
noted,
Bryan
As
Ulmet cites no
clamoring
would darken the courthouse
case
eq
where
district court awarded
Congested
interim relief.
dockets
relief in
uitable
Claims Court
sympathy;
they may not excuse a
evoke
Bowen,
But,
action.10
even before
courts
judicial authority
refusal to exercise
where
recognized
purely equitable
dis
lie. See
properly
and venue
proceedings may
trict court
extend into the
Products,
Thermtron
Inc. v. Hermansdor
See,
province
e.g.,
of the Claims
Court.
589,
fer, 423 U.S.
336, 344,
584,
96
46
S.Ct.
Heckler,
Minnesota v.
852,
857-60
(1976);
Com
L.Ed.2d 542
Microsoftware
States,
(8th Cir.1983);
Rowe v. United
633
puter Systems,
Corp.,
v.
Inc.
Ontel
686
799,
(9th Cir.1980),
cert. de
F.2d
801-02
531, 534,
(7th Cir.1982).
537
nied,
970,
2047,
451
101
S.Ct.
68
Construing
reasoning
the district court’s
(1981), including
tandem
L.Ed.2d 349
eq
as a broad concern over
does not
See,
damages
proceedings.
uitable
alter the
Admittedly, principles
result.
Roudebush,
e.g., Giordano v.
rights Richard with any effect on lack of and the powers Court, contra- in the Claims judgment final CORPO MANAGEMENT INVESTORS efficiency. comity or principle no vene Wayman RATION; Maynard; H. James barrier, le- jurisdictional or There is no Renaud; Leftwich, Jr.; Earnest E. O. the district court’s the exercise of gal, to Sewell, Jr.; Carl; Louis W. F. William Arbitrarily refuse to do so powers. McCormick; Harold S. Gen M. John judge discretion of whatever abuse Hechler; een; E. Glenn Ira J. may possess. Sr.; Sanford, Anderson, Terry Di as fur- perceived threat majority’s Management Cor rectors of Investors proceedings is also illu- ther Claims Court Defendants-Appellees. poration, arguments Army’s sory. The No. 88-2540. highly amended statute are effect of the Appeals, States Court United presumed to be unpersuasive. Statutes Fourth that a legislator’s remarks prospective. A in line brings closer change a statute Argued Nov. origi- does not mandate the original intent 6, 1989. Decided Nov. indeed, statute; it ac- nal effect original “effect” knowledges the version’s different than
may very well have been
amended version.12 argument as to stat-
Even a meritorious The man-
utory is irrelevant. construction issued. the Federal Circuit has
date of scenario, rights the factual
Given relief have in a sense “vest-
to some final equity, however sub- purposes
ed” for arguably
ject to defeasance. Given right injury, the
irreparable nature of his relatively unaf- to interim
of Ulmet Army’s statutory the- by the newest
fected precise mone-
ory, quibbling as to the
tary award. correct, the absence of
If the relief entails the existence
such interim right, a situation wrong without law, by the and a situation whose
abhorred within the
remedy apparent, well the district court.
power of *9 date, requested by Ulmet judgment with that preparation opinion, a coincidental of this 12. After Ulmet, issued, Unfortunately further complying in this action. of the Claims necessary proceedings appear to determine de- Circuit. The court mandate of the Federal award, request rendering statutory precise moot his Army's in Ulmet’s favor on cided equitable relief. for interim and affixed constructive claims