Ulmet v. U.S.

• Decision Date: 31 October 1989
• Docket Number: No. 88-2593,88-2593
• Parties: Oliver Donovan ULMET, Plaintiff-Appellant, v. UNITED STATES of America; John O. Marsh, Jr., in his capacity as Secretary of the Army, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1028

888 F.2d 1028

Oliver Donovan ULMET, Plaintiff-Appellant, v. UNITED STATES of America; John O. Marsh, Jr., in his

capacity as Secretary of the Army, Defendants-Appellees.

No. 88-2593.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 9, 1989.

Decided Oct. 31, 1989.

John William Toothman (Susan B. Smith, Grad, Toothman, Logan & Chabot, P.C., Alexandria, Va., on brief), for plaintiff-appellant.

Major Robert Cook McFetridge, Office of Judge Advocate Gen., Dept. of Army, Washington, D.C., (Henry E. Hudson, U.S. Atty.; Dennis E. Szybala, Asst. U.S. Atty., Alexandria, Va., on brief), for defendants-appellees.

Before MURNAGHAN, Circuit Judge, BUTZNER, Senior Circuit Judge, and TILLEY, United States District Judge

for the Middle District of North Carolina, sitting by designation.

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. Sec. 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." Ulmet 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 Sec. 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 Sec. 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. Sec. 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 Sec. 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 Sec. 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 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 case.... 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. Sec. 1331 (diversity) and 28 U.S.C. Sec. 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 Sec. 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. Sec. 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. Sec. 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:

Our cases have long recognized the distinction between an action at law for damages--which are intended to provide a victim with monetary compensation for an injury to his person, property or reputation--and an equitable action for specific relief--which may include an order providing for the reinstatement of an employee with back pay.... The fact that a judicial remedy may require one party to pay money to another is not sufficient reason to characterize the relief as "money damages."

108 S.Ct. at 2732. The Court found that the state's suit was in the nature of an equitable action for specific relief seeking reimbursement to which the state was allegedly already entitled, rather than money in compensation for losses suffered as a result of the Secretary's refusal to make the payments. The Court held that the district court had jurisdiction.

Although Ulmet insists that he is seeking equitable relief not available in the Claims Court, his request for an injunction or writ of mandamus merely disguises the true nature of the relief sought, which is back pay and benefits. In essence he seeks specific monetary relief as defined in Bowen. The district court properly determined that it had jurisdiction over this action.

III

Ulmet claims that the district court abused its discretion in declining to exercise jurisdiction over this action, relying upon Bowen and a number of other federal appellate decisions. These decisions simply delineate the scope of jurisdiction in the Claims Court and the district court and recognize that a purely equitable district court action could be brought in tandem with a Claims Court proceeding for damages. They do not support Ulmet's claim that a district court may intervene in a case that has been decided by the Federal Circuit and is pending on remand before the Claims Court on the basis that the Claims Court is not acting with sufficient dispatch.

We are convinced that to retain jurisdiction over Ulmet's claim would strike at the heart of judicial comity. The doctrine of comity governs relations between courts of the same sovereign as well as courts of different sovereigns. See generally Wells, The Role of Comity in the Law of Federal Courts, 60 N.C.L. Rev. 59, 61 n. 5 (1981). In Gregory-Portland Independent School Dist. v. Texas Education Agency, 576 F.2d 81 (5th Cir.1978), the court ruled that the doctrine of comity precluded one district court from issuing an order that conflicted with an injunction issued by another district court in the same matter. The court said "considerations of comity and orderly administration of justice demand that the nonrendering court decline jurisdiction ... and remand the parties for their relief to the rendering court so long as it is apparent that a remedy is available there." 576...