Irby v. U.S., of Army

• Citation: 245 F.Supp.2d 792
• Decision Date: 14 February 2003
• Docket Number: No. CIV.A. 203CV54.,CIV.A. 203CV54.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: George H. IRBY, Jr., Plaintiff, v. The UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, Defendant.

245 F.Supp.2d 792

George H. IRBY, Jr., Plaintiff, v. The UNITED STATES OF AMERICA, DEPARTMENT OF THE ARMY, Defendant.

No. CIV.A. 203CV54.

United States District Court, E.D. Virginia, Norfolk Division.

February 14, 2003.

Robert W. McFarland, Steven R. Zahn, McGuire Woods LLP, Norfolk, VA, for Plaintiff.

Lawrence R. Leonard, United States Attorney's Office, Norfolk, VA, Gary Phillip-Matthew Corn, United States Army, Arlington, VA, for Defendant.

ORDER

FRIEDMAN, District Judge.

The plaintiff has filed a complaint challenging the legality of an order requiring him to serve on active duty as an enlisted soldier in the United States Army. On January 23, 2003, the court granted the plaintiffs motion for a temporary restraining order (TRO) and allowed the plaintiff to amend his complaint to reflect a claim for habeas relief. On February 4, 2003, the court heard oral argument with respect to the plaintiffs motion for a preliminary injunction. Based on the briefs submitted by the parties, the testimony of the witnesses, the arguments of counsel at the hearing, and for the reasons stated on the record and set forth below, the court DENIES the plaintiffs motion for a preliminary injunction.

I. FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff was a student at Hampton University from 1996 to 2000. While enrolled, he was a member of the Reserve Officer Training Corps (ROTC) and received scholarship benefits as a result. On August 26, 1996, Irby executed two contracts ¹

with the United States Army regarding the ROTC scholarship and his expected return commitments. In at least three separate provisions, Irby's Cadet Contract provided that he would incur an active duty or reimbursement obligation should he withdraw from the program after the first day of his second year of military education. One term clearly stated that the decision to order active duty or to reimburse the United States was within the Army's discretion. By virtue of his Enlistment Contract, Irby enlisted in the Armed Forces of the United States and was conditionally assigned to the U.S. Army Reserve Control Group (ROTC).

Irby graduated in December, 2000 and was scheduled to be commissioned in the Army in February, 2001. In a conversation occurring on February 8, 2001 with his commanding officer, Lt. Colonel Wendell Turner, Jr., Irby expressed his desire to decline his commission, claiming that his family needed him to help care for his ailing grandparents.² A day later, Irby's mother also contacted Turner to discuss the problem. Turner submitted a memorandum for record written February 19, 2001 documenting both conversations.

Turner stated that he was skeptical of Irby's reasons and thought his decision was foolish. He stated that he informed Irby of the ramifications of his decision— that Irby would be made to repay his scholarship or could be involuntarily ordered to active duty. Turner also noted that Irby's mother asked if they could repay the loan, and he informed her that he was suspicious of her son's reasons for refusing his commission and that he had not yet decided because he had his doubts. The conclusion of the memorandum stated that he would recommend that Irby "be made to repay the Army scholarship and be ordered to active duty."³ Defs. Ex. 7 at 23. Apparently this decision was premised on Turner's disbelief that Irby's concerns for his family were at the root of his decision to reject his commission, as well as Turner's awareness of "past indicators of [Irby's] half-hearted commitments to military service...." Id. With unusual prescience, Turner concluded that he "would not be surprised if the family happens to find the funds to get the best legal team that money can buy to thwart this action." Id. Irby's disenrollment packet was forwarded to him in early March, 2001, and on March 12, 2001 he submitted the completed packet. In the interim, Irby communicated with Randy Siders, a retired Army sergeant serving in an administrative capacity with the ROTC program, regarding his disenrollment questions. Because it was clear that Irby was not contesting the reason for his disenrollment —breach of contract—and because Irby indicated that he did not dispute the amount of money he owed, Siders recommended that Irby waive his right to board review of his disenrollment.

Over the following few months, Irby's packet was supplemented and forwarded up the chain of command. Ultimately, on September 10, 2002, the Assistant Secretary of the Army (Manpower and Reserve Affairs) Reginald Brown approved the recommendation that Irby be ordered to active duty. Irby was ordered to active duty on October 25, 2002, with an eventual report date of January 27, 2003. In response, Irby retained counsel and sought a meeting with an Army representative. At this meeting, Army JAG officer Major Joe Marshall apparently agreed to extend Irby's report date in light of certain claims he had made regarding his disenrollment. When Major Marshall inquired further into the disenrollment, he became convinced that Irby had misrepresented certain facts to him, and therefore, Marshall withdrew his promise to extend Irby's report date. The instant complaint was immediately filed, alleging a breach of contract arising from this promise and claiming jurisdiction under 28 U.S.C. § 1346. The plaintiff requested that the court impose a TRO and preliminary injunction. At the TRO hearing, the court stated it did not believe it had jurisdiction to hear a breach of contract action that requested only injunctive relief. The court therefore granted the plaintiffs oral motion to amend the complaint to add a claim for habeas relief and a request for damages of $9,999.

II. ANALYSIS

A. Jurisdiction

As noted, there are currently two claims before the court: a breach of contract claim and a claim for habeas corpus relief. In issuing the TRO, the court commented that it had doubts as to its jurisdiction over the plaintiffs breach of contract claim premised on 28 U.S.C. § 1346, because the relief requested was solely equitable in nature and an injunction is not an available remedy under that statute. See Richardson v. Morris, 409 U.S. 464, 465, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973); Berman v. United States, 264 F.3d 16 (1st Cir.2001); Bobula v. Dep't of Justice, 970 F.2d 854, 858-59 (Fed.Cir.1992). In response, the plaintiff added a demand for money damages. The fact that there exists money damages in a complaint does not alone provide jurisdiction to hear this claim. The claim must also allege a money-mandating provision and the monetary damages must not be merely ancillary to the request for injunctive relief. On the contrary, it is the injunctive relief that must be incidental to the monetary relief. See Randall v. United States, 95 F.3d 339, 347 (4th Cir.1996). The court believes that the monetary relief in this case is merely ancillary to the request for an injunction. While the court will not yet dismiss this claim because the preliminary injunction hearing was solely devoted to the plaintiffs habeas claim, the court does note that the plaintiff should allege a sufficient alternative jurisdictional basis for this claim or face the possibility of dismissal.

[2] For a court to consider the plaintiffs second claim, a petition for habeas corpus relief, there are two jurisdictional prerequisites: 1) the plaintiff must be in custody, see 28 U.S.C. 2241(c)(1), and 2) the suit must be filed in the district where the petitioner is in custody. An order to active duty has been considered custodial for purposes of a habeas petition. See Karlin v. Clayton, 506 F.Supp. 642, 647 (D.Kan.1981) (collecting cases). Such cases typically involve a reservist ordered to active duty, but it is clear that the plaintiff is not considered a civilian by the military. In fact, a cadet in a college ROTC program is technically an Army reservist. See Def's. Ex. 7 at 11 (Enlistment Contract). Disenrollment from ROTC does not always coincide with a discharge from the military, and in this case, Irby was disenrolled and ordered to active duty. The court is satisfied, and the Army does not contest, that he meets this jurisdictional prerequisite.

The second component of jurisdiction is more a consideration of proper venue. The plaintiff must sue where his custodian is found. Early case law took a narrow, formalistic view of this mandate, some courts requiring that the party sue in the district where he had been ordered to report for active duty or where his literal "custodian" was located. See Crowley v. United States, 388 F.Supp. 981, 986 (E.D.Wis.1975). Today, courts employ a broader "sufficient contacts" analysis derived from the Supreme Court's discussion in Strait v. Laird 406 U.S. 341, 92 S.Ct. 1693, 32 L.Ed.2d 141 (1972). Consequently, a plaintiff may sue in a district where he had sufficient contacts with the military, even if he was ordered to active duty in another district. See Moreno v. Commander, McChord Air Force Base, 567 F.Supp. 1437, 1439 (D.Ariz.1983) (plaintiff ordered to active duty in Washington state).

Either characterization of proper venue would undoubtedly apply in this case due to the Eastern District of Virginia's unique position as home to numerous military command headquarters, and the plaintiffs relationship with the district. The plaintiffs ROTC training occurred entirely in this district at Hampton University. The United States Army Cadet Command headquarters is located at Fort Monroe in this district, and the Pentagon, where his disenrollment was processed, also is located in this district. Any correspondence with the military occurred solely within this district, and the final meeting with Major Marshall occurred in this district. Under any jurisdictional analysis, this court is a proper location for the plaintiffs lawsuit.

B. The Preliminary Injunction

[3] Courts in this circuit address the merits of a motion for a preliminary injunction through the four factors and balancing test laid...