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Palmer v. United States

February 23, 1999


Before Plager, Rader, and Gajarsa, Circuit Judges.

The opinion of the court was delivered by: Plager, Circuit Judge.

Appealed from: United States Court of Federal Claims Senior Judge Kenneth R. Harkins

This is a military pay case. The United States Court of Federal Claims rendered judgment against Colonel David W. Palmer II on his claim for pay he alleged to have been wrongfully denied. See Palmer v. United States, 38 Fed. Cl. 316 (1997). Col. Palmer appeals the judgment. Because Col. Palmer, as an officer not on regular active duty, is not entitled to pay for duty he did not perform, we affirm the decision of the Court of Federal Claims.


After five years of active duty as a regular officer in the U.S. Army, Col. Palmer became a member of the U.S. Army Reserve in October 1969. Col. Palmer served in a Ready Reserve unit - the 361st Civil Affairs Brigade, in Pensacola, Florida - from May 1970 until 1987. As a ready reservist, Col. Palmer performed forty-eight paid drills each year, as well as an annual period of active duty.

In September 1984, the reserve unit commander assigned Palmer to the position of Assistant Chief of Staff, Special Functions. This assignment was for "an indefinite period or until relieved by the Commander." In June 1987, a Selective Retention Board recommended Col. Palmer for continuation in the unit for another two-year period. Although the Commanding General approved the Board's recommendation, three months later a new commander ordered Col. Palmer's transfer out of the unit. The new commander's decision was based on the assumption that Col. Palmer's position was a tenured one with a three-year tour length, and that there was a lack of an alternative position of increasing responsibility. Before Col. Palmer's removal, the senior military commander reviewed the proposed involuntary transfer and denied relief.

Consequently, in November 1987, the Army transferred Col. Palmer out of the ready reserve unit to the Army Personnel Center, Control Group (Reinforcement), in St. Louis, Missouri. Following the transfer, Col. Palmer no longer drilled with or received pay from a reserve unit.

Col. Palmer appealed his transfer to the Army Board for the Correction of Military Records ("ABCMR"). Under Army regulations, an officer may serve in a "command" or "principal" staff position for "no more than 3 years." Army Regulation 140-10, ¶ 2-18a. At the end of three years, the unit commander has the option of reassigning the officer within the unit. Otherwise, the Army can transfer the officer from the unit. There is an exception to the three-year limitation for officers in a "special" or "personal" staff position. See Army Regulation 140-10, ¶ 2-18c. Col. Palmer argued that his position was not tenured, and thus, not subject to the three-year tenure limitation. An advisory opinion requested by the ABCMR from the Army Reserve Personnel Center found merit in Col. Palmer's claim; nevertheless, the ABCMR affirmed the transfer, citing a new basis of "command prerogative." The ABCMR denied reconsideration in June 1991.

After the ABCMR declined to reconsider its decision, Col. Palmer filed suit in the U.S. Court of Federal Claims for back pay, reinstatement, and correction of his records. See 28 U.S.C. § 1491(a)(2) (1994). On cross-motions for summary judgment, the Court of Federal Claims found that even if the ABCMR's decision were improper, Col. Palmer was not entitled to compensation for drills unless he was ordered to perform and actually performed the work. See Palmer, 38 Fed. Cl. at 330. Col. Palmer is now before this court appealing the dismissal of his claim by the Court of Federal Claims. We have jurisdiction to hear this appeal under 28 U.S.C. § 1295 (1994).



On review of the record in this case, and after reading the thorough and extensive opinion of the trial Judge, we cannot help but be struck by the procedural morass with which the trial Judge had to struggle. Part of this difficulty may be attributed to the fact that Col. Palmer appeared before the court, as he does here, pro se, *fn1 but a substantial portion must be laid at the doorstep of Government counsel. The Government insisted, as it so often does, that a plaintiff whose case is, in the Government's view, less than meritorious is a plaintiff with a case over which the Court of Federal Claims has no jurisdiction. As the trial court observed, "[d]efendant's continued assertion of a motion to dismiss for lack of subject matter jurisdiction reflects a persistent confusion over the meaning of `jurisdiction' as that term applies to claims against the United States under the Tucker Act." Palmer, 38 Fed. Cl. at 320.

The trial court politely but firmly explained to the Government the difference between a court's general power to adjudicate in specific areas of substantive law, on the one hand, and the question of whether in a specific case a court is able to exercise its general power with regard to the facts peculiar to the specific claim, on the other. The former is a question of a court's subject matter jurisdiction, and is properly raised by a Fed. R. Civ. P. 12(b)(1) motion; the latter is properly addressed as a question of whether the plaintiff has stated a claim upon which relief can be granted, and is raised by a Fed. R. Civ. P. 12(b)(6) motion (the Court of Federal Claims denominates this an RCFC 12(b)(4) motion).

As the trial court sagely noted, when dealing with the Tucker Act, issues of sovereign capacity and consent to be sued cloud jurisdictional concepts. See Palmer, 38 Fed. Cl. at 320. This makes it even more important that parties before the court, and particularly the Government since it is always a party in a Tucker Act suit, make the effort to understand and respect the difference. (Oddly enough, off and on during the course of the six years the matter was before the trial Judge, the ...

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