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BUBLITZ v. BROWNLEE

March 19, 2004.

GARY BUBLITZ, Plaintiff,
v.
LES BROWNLEE, Acting Secretary of the Army, Defendant[fn1]



The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge

*fn1 Pursuant to Rule 25(d)(1) of the Federal Rule of Civil Procedure, Les Brownlee, current Undersecretary of the Army and Acting Secretary of the Army, is substituted for Thomas E. White, who was sued in his official capacity and was Secretary of the Army at the time the case was filed.

OPINION

This matter is before the Court on defendant's motion to dismiss, for summary judgment, or, in the alternative, to transfer, and plaintiffs cross-motion for summary judgment. Plaintiff, a former Army reservist, has sued for injunctive relief under the Administrative Procedure Act to correct the allegedly arbitrary and capricious denial of his application by the Army Board for Correction of Military Records. Specifically, plaintiff seeks the correction of his military records to reflect dates of promotion earlier than actually occurred. Defendants argue that this suit is essentially a claim for monetary damages — the retirement pay plaintiff would receive if he had been promoted as he wished. If defendants are correct, the Court of Federal Claims has exclusive jurisdiction over this action. See 28 U.S.C. § 1491(a)(1). The Court holds that plaintiff's claim is in essence one for damages. The Court therefore lacks jurisdiction to Page 2 address the merits of plaintiff's complaint. Accordingly, defendant's motion to transfer the action to the Court of Federal Claims is granted.

  I. BACKGROUND

  Plaintiff Gary Bublitz was commissioned as a second lieutenant through the Wisconsin Army National Guard Officer Candidate School program on August 22, 1971. In December 1972, he transferred into the Army Reserve. He was promoted to first lieutenant on January 16, 1976, and to captain on January 15, 1980. While serving the Army Reserve in Peoria, Illinois, in 1985, plaintiff applied for a position in the Active Guard Reserve Program, as an assistant professor of military science, Reserve Officer Training Corps, at the University of Utah. His application was forwarded for approval that September.

  At the same time, plaintiff became eligible for a unit vacancy promotion to major. The Army Reserve uses unit vacancy boards to fill positions that are difficult to staff, by promoting junior-in-rank soldiers to the senior rank required of the position to be filled. In this case, if plaintiff were selected for the unit vacancy, he would have been promoted from captain to major approximately thirteen months before he would have been eligible for the promotion in the natural promotion cycle. Plaintiff submitted an application for the unit vacancy promotion, and he was selected by the unit vacancy board for the promotion on December 13, 1985.

  Three days before, however, plaintiff had been notified that he had also been accepted to the Active Guard Reserve Program in Utah, and that his active service was to commence (as a captain) on February 15, 1986. As a result of his acceptance into the Active Guard Reserve Program, plaintiff was notified that he was no longer eligible for the unit vacancy, Page 3 and his application was removed from further consideration. Plaintiff reported for his service in Utah in February 1986, and was promoted to major pursuant to the natural promotion schedule in January 1987. In January 1994, he was promoted to lieutenant colonel, again according to the natural promotion schedule.

  During plaintiffs service as a lieutenant colonel, on October 1, 1996, the Reserve Officer Personnel Management Act ("ROPMA" or "the Act") took effect. That statute requires reservists at the rank of lieutenant colonel to be removed from active status after twenty-eight years of service, and requires reservists at the rank of colonel to be removed from active status after thirty years of service. See 10 U.S.C. § 14507(a), (b). Plaintiff was promoted to colonel on March 4, 1999, and according to the terms of the Act, he would be removed from active service in September 2001. All parties concede that it was upon plaintiff's promotion to colonel that he first became subject to the provisions of the Act.

  At the time the Act mandated plaintiff's removal from active duty, he would have served in the reserves for thirty years, but would have served on active status for only sixteen. He thus was ineligible to serve twenty years in active status and receive active duty retirement. Active duty retirees begin receiving their pensions immediately upon retirement, rather than waiting until age sixty, as is the case for reservists without twenty years' active-duty service. Had the Act not applied to plaintiff, he would have been able to continue serving on active status as a colonel until reaching twenty years' active duty service. Plaintiff was retired pursuant to the Act on September 1, 2001. Page 4

  Plaintiff alleges that the failure to promote him to major in December 1985 caused each successive promotion to occur later than it should have. According to plaintiff, he should have been promoted to colonel before October 1, 1996 — the effective date of the Act. As such, the mandatory retirement provisions of the Act would not have applied to him, and he would have been able to serve long enough to receive his active-duty retirement.

  Plaintiff initially brought this dispute before the Army Board for Correction of Military Records ("ABCMR") in 1999, after his promotion to colonel, asking the Board to change his records to reflect promotions earlier than when they were actually received, thus making him eligible for an active-duty retirement. When the Board denied him relief, plaintiff filed a complaint in this Court under the Administrative Procedure Act seeking to overturn the Board's decision as arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. See 5 U.S.C. § 706(2)(a). On August 22, 2002, the Court granted defendant's motion to remand the action voluntarily to the ABCMR for reconsideration of its denial of relief in light of new evidence submitted by plaintiff that was not part of the original administrative record.

  The ABCMR considered the new evidence on remand but reaffirmed its initial decision that the Army Reserve had acted appropriately in removing plaintiffs name from the list for possible promotion in 1985 because of his pending departure from his unit. See Supplemental Administrative Record ("SAR") at 3. It concluded, inter alia, that: (1) nomination for unit vacancy promotion is not a right, must meet the requirements of the applicable regulations, and, in plaintiff's case, would have been inconsistent with the unit vacancy selection process; (2) the Army Reserve acted properly in removing plaintiffs name from consideration based on his expected departure and entry into Active Guard Reserve Program in Utah because Page 5 plaintiff would not have been available to serve in the position for which he was considered as required by regulation; and (3) his selection for the unit vacancy promotion would have defeated the stated purpose of the unit vacancy process, to staff difficult to fill positions. See SAR at 4. The ABCMR further concluded that if plaintiff had not been accepted into the Army Guard Reserve Program or declined the assignment he could have sought redress from the ABCMR in 1985. See id.

  Defendant has moved to dismiss for lack of jurisdiction or for summary judgment, or, in the alternative, for transfer to the Court of Federal Claims. According to defendant, plaintiff's suit is a suit for damages — an active-duty retirement and back pay — made to look like a suit for injunctive relief. Plaintiff disputes this characterization, saying that he wanted to serve in active duty beyond the mandatory retirement date, although he did request early retirement in April 2001.*fn2 He also claims that injunctive relief will ...


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