Before Plager, Circuit Judge, Friedman, Senior Circuit Judge, and Schall, Circuit Judge.
The opinion of the court was delivered by: Schall, Circuit Judge.
Appealed from: United States Court of Federal Claims
Judge Robert H. Hodges, Jr.
David E. Tippett appeals the decision of the United States Court of Federal Claims that dismissed his suit seeking back pay and reinstatement in the United States Army. Tippett v. United States, No. 96-308C (Fed. Cl. Aug. 21, 1997). In his complaint, Tippett alleged, among other things, that his discharge was involuntary because he had requested it after receiving erroneous advice from a government-provided military lawyer. In due course, the government moved to dismiss the complaint for lack of jurisdiction or for failure to state a claim upon which relief could be granted, pursuant to Rules 12(b)(1) and (4) of the Court of Federal Claims. In the alternative, the government moved for summary judgment on the administrative record, pursuant to RCFC 56.1. For his part, Tippett opposed the motion to dismiss and cross-moved for summary judgment. After considering the parties' motions and hearing oral argument, the court granted the government's motion to dismiss for lack of jurisdiction because it concluded that Tippett had failed to establish that his discharge was involuntary. Because we conclude that, in the trial court, Tippett presented non-frivolous allegations of involuntariness, we vacate and remand.
The following facts are undisputed: Tippett was commissioned in the United States Army as a second lieutenant in May of 1977. At the time of the events giving rise to this case, he had attained the rank of captain and was stationed in Wuerzburg, Germany, where he was the Public Affairs Officer for the 3rd Infantry Division.
In January of 1989, Tippett's superiors became aware that he had been involved in an extra-marital relationship with a civilian co-worker in the Public Affairs Office. After admitting to the relationship, Tippett was relieved of his duties as Public Affairs Officer on January 29, 1989. Subsequently, he received an adverse Officer Efficiency Report ("OER") for the period July 25, 1988, through January 29, 1989. The OER stated that the extra-marital relationship had contributed to the degradation of Tippett's unit and had prevented Tippett from properly motivating his subordinates.
After receiving the adverse OER, Tippett consulted with Army Trial Defense Service ("TDS") lawyer Captain Thomas Barth. Subsequently, on April 14, 1989, Tippett submitted a response to the OER in which he asserted that the OER did not accurately reflect his performance of duty during the applicable time frame. Specifically, Tippett contended that the Public Affairs Office had not suffered a degradation of performance and that he had in fact motivated his subordinates. In his response to the OER, Tippett stated that "the OER will prohibit me from obtaining a Reserve commission and serving my country in time of war." In due course, Tippett was informed that, because he was the subject of an investigation that could lead to disciplinary action, pursuant to Army Regulation ("AR") 624-100, ¶ 2-10, his promotion to major, scheduled for February 1, 1989, would be delayed.
On August 18, 1989, Tippett was ordered to show cause why, in view of his "substandard performance of duty and misconduct," he should be retained on active duty. The order informed Tippett that the options available to him included: (i) submitting a resignation in lieu of elimination pursuant to AR 635-120, chapter 4; (ii) requesting a discharge in lieu of elimination pursuant to AR 635-120, chapter 8; or (iii) in lieu of resignation or discharge, requesting an appearance before a board of inquiry in order to show cause for retention.
On January 16, 1990, Captain Barth temporarily returned to the United States. In Barth's absence, Tippett met with another TDS lawyer (Tippett's "second lawyer") for advice on whether to resign, request a discharge, or appear before the board of inquiry to show cause for retention on active duty. In paragraphs 54, 55, and 56 of his complaint in the Court of Federal Claims, Tippett described as follows his dealings with his second lawyer (referenced in the complaint as "RDC Counsel") and his ensuing request for a discharge:
"54. . . . The RDC Counsel did tell plaintiff that he had spoken with the 3ID [3rd Infantry Division] Deputy SJA [Staff Judge Advocate] and that the command would recommend an honorable discharge if plaintiff would resign. . . . During this meeting, plaintiff asked the RDC Counsel what was the difference between resignation and a discharge. The RDC Counsel advised plaintiff that a "discharge would allow [plaintiff] to go into the Reserves . . . because it [was] not a resignation of the commission, you still hold the commission, but it is just a discharge from active service." The RDC Counsel told plaintiff that he would double check with both PERSCOM and the Department of the Army to make sure this information was correct. . . . Plaintiff and the RDC Counsel agreed to meet again on March 14, 1990.
1. On March 14, 1990 plaintiff met again with his attorney, the RDC Counsel. At that time, the RDC Counsel confirmed that plaintiff would be commissioned in the United States Army Reserves (USAR) at the time of separation. The RDC Counsel presented plaintiff with two memorandums. One was to OTJAG [Office of the Judge Advocate General] requesting copies of any investigative reports or summaries arising from alleged unethical conduct by the 3ID SJA. The second was a memorandum to PERSCOM in which plaintiff requested discharge from the United States Army under the provisions of Chapter 8, AR 635-120. On the advice of his attorney, the RDC Counsel, plaintiff signed both memorandums. The RDC Counsel forwarded the memorandums to the appropriate authority in the chain of command.
1. Plaintiff's chain of command recommended that plaintiff be issued an honorable discharge."
The reference in paragraph 55 of the complaint to "investigative reports or summaries" was to reports or summaries relating to an investigation that was being conducted concerning the SJA for the 3rd Infantry Division. The investigation focused on the conduct of the SJA in connection with the original investigation of Tippett's extra-marital relationship with a civilian employee in the Public Affairs Office.
On March 28, 1990, Captain Barth returned to Germany and resumed his representation of Tippett. Shortly thereafter, on April 19, 1990, Colonel Wayne Iskra was asked to investigate allegations concerning Tippett's second lawyer, who had advised Tippett while Captain Barth was in the United States. Colonel Iskra's investigation grew out of allegations that surfaced in the course of the above-noted investigation into the conduct of the 3rd Infantry Division SJA in connection with the original investigation of Tippett's extra-marital relationship. The thrust of the allegations was that Tippett's second lawyer had a conflict of interest when he represented Tippett because, prior to representing Tippett, he had written a memorandum in support of the SJA's actions taken against Tippett. In the course of the investigation, Tippett provided a sworn statement to Colonel Iskra. On May 25, 1990, Colonel Iskra submitted the report of his investigation. He concluded that Tippett's second lawyer had acted improperly by representing Tippett when Tippett was ...