BARRY M. WOLFE, PETITIONER V. JOHN O. MARSH, JR., SECRETARY OF THE
ARMY, ET AL.

   No. 88-235

   In the Supreme Court of the United States

   October Term, 1988

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit

   Memorandum for the Respondents in Opposition

   Petitioner, who is seeking to upgrade his discharge from the Army,
contends that the United States Court of Appeals for the Federal
Circuit rather than the United States Court of Appeals for the
District of Columbia Circuit had appellate jurisdiction in this case.

   1. After an investigation of the sale of illegal drugs at Fort
Belvoir, Virginia, the Army filed court-martial charges against
petitioner (Pet. App. 3A).  Petitioner then requested a "chapter 10
discharge," under which a member of the military admits that he is
guilty of charges that authorize a bad conduct or dishonorable
discharge, states that he does not wish to remain in the military, and
acknowledges that his discharge, if accepted, can be under other than
honorable conditions (id. at 4A-5A).  The officer exercising general
court-martial jurisdiction approved the discharge request, and
petitioner was discharged than under less honorable conditions (id. at
6A).

   Petitioner subsequently asked the Army Discharge Review Board to
upgrade his discharge to honorable.  The Review Board denied his
request for an upgrade, as did the Army Board for the Correction of
Military Records (Pet. App. 6A-7A), and the district court granted
summary judgment to the Army on petitioner's request for judicial
review of the Correction Board's decision (id. at 43A-73A).

   Petitioner appealed to the D.C. Circuit.  In its initial decision
(Pet. App. 1A-26A), the court of appeals rejected his assertions of
procedural irregularities in the initial discharge decision.  /1/
Petitioner then filed a motion for reconsideration, arguing that the
D.C. Circuit lacked appellate jurisdiction.  Asserting that the
district court's jurisdiction was based in part on the "Little Tucker
Act," 28 U.S.C. 1346(a)(2), petitioner argued for the first time that
exclusive jurisdiction to review that decision on appeal lay in the
United States Court of Appeals for the Federal Circuit under 28 U.S.C.
1295(a)(2).  He asked the court to withdraw its opinion and transfer
the case to the Federal Circuit.  See Pet. App. 28A-29A.

   The court of appeals, however, in a lengthy supplemental opinion,
denied the motion to transfer (Pet. App. 27A-42A).  It based its
decision on its earlier ruling in Vietnam Veterans of America v.
Secretary of the Navy, 843 F.2d 528, 533-535 (1988), which it
characterized as holding that "where a plaintiff seeking an upgrade
neither seeks nor is granted monetary relief, the mere fact that a
government payment of money is an automatic concomitant of the
requested relief does not support Little Tucker Act jurisdiction"
(Pet. App. 29A (emphasis in original)).  The court examined the
district court record and concluded that at no time did petitioner
make an express request for money damages (id. at 29A-33A).  The court
reasoned that a "bright line rule" (id. at 38A) against such implied
claims for money damages is necessary because "(t)here is no reason
why trial courts (or appellate courts) should have to resort to close
scrutiny of ambiguous memoranda to glean an intent to set forth a
monetary claim" (id. at 39A).

   2. While we do not necessarily agree with the D.C. Circuit's
determination that it had jurisdiction over the appeal in this case,
the technical issue petitioner raises is neither sufficiently
important nor the subject of sufficient disagreement among the
circuits to warrant a grant of certiorari.  Moreover, despite our
doubts about the D.C. Circuit's jurisdictional holding, that holding
is not so clearly wrong that a summary disposition of the petition
would be in order.  For those reasons, and because petitioner would
not, on the facts of this case, be entitled to benefit even if this
Court were to agree with his jurisdictional contention, the petition
should be denied.

   a. In cases involving the correction of military records,
plaintiffs occasionally file suit in district court asking for
equitable relief (e.g., reinstatement or a discharge upgrade) but
leaving ambiguous the question whether they also seek monetary relief.
 See, e.g., Vietnam Veterans of America v. Secretary of the Navy,
supra;  ben-Shalom v. Secretary of the Army, 807 F.2d 982 (Fed. Cir.
1986).  Such ambiguities give rise to difficulties in determining
jurisdiction, both at the trial level (where the United States Claims
Court rather than a district court has always been thought to have
exclusive jurisdiction under 28 U.S.C. 1491 over backpay claims for
more than $10,000) and at the appellate level (where the Federal
Circuit rather than the regional circuit has exclusive jurisdiction
under 28 U.S.C. 1295(a)(2) if the plaintiff's monetary claim was
cognizable in district court under the Little Tucker Act).

   The federal government, in defending such suits, has heretofore
sought to resolve such ambiguities by assuming that a plaintiff,
unless he or she expressly waives monetary recovery, is seeking
monetary relief whenever such relief would follow naturally from the
equitable relief the plaintiff seeks.  Thus, in the Vietnam Veterans
case, we urged the court to hold that the complaint should be read as
asserting a monetary claim and that the Federal Circuit had exclusive
jurisdiction over the appeal.  And, in this case, we filed a
memorandum agreeing with petitioner that the Federal Circuit had
exclusive jurisdiction over the appeal (see Pet. App. 29A n.1).  In
both cases, however, the court rejected our argument, and in fact
there is no published decision of a court of appeals that accepts that
argument in the context of a military correction board case.  But cf.
Matthews v. United States, 810 F.2d 109, 113 (6th Cir. 1987).  In the
absence of a square conflict in the circuits, we have not thought this
issue sufficiently important -- or the case law sufficiently developed
-- to ask this Court to address the issue.  Nor do we agree with
petitioner that the issue is ripe for this Court's consideration in
this case.

   The approach that the D.C. Circuit has taken to this issue, and
applied in this case, is at the opposite extreme from the position we
have advocated, but it serves the same objective of resolving
ambiguities through predictable rules.  When it is unclear whether the
plaintiff seeks monetary relief, the D.C. Circuit presumes that he or
she does not seek such relief unless an unambiguous request has been
made.  See Vietnam Veterans, 843 F.2d at 533-535;  Pet. App. 29A.  In
this case, the court of appeals determined that petitioner had not
unambiguously sought monetary relief, and it therefore treated the
case as one in which the plaintiff sought equitable relief only (see
id. at 29A-40A).  /2/ Although the D.C. Circuit's approach is not the
one we have advocated in the past, it does make some sense from the
standpoint of judicial economy, and we cannot say that it is so
clearly wrong that summary action by this Court would be warranted.
/3/

   b. Even if the jurisdictional issue that petitioner raises were
sufficiently important, controversial, or clear to warrant this
Court's attention, and even if this Court were to determine that the
Federal Circuit rather than the D.C. Circuit had jurisdiction, it
would not follow that petitioner would be entitled to the relief he
seeks, namely a transfer to the Federal Circuit.  The normal remedy
when a court of appeals lacks jurisdiction is dismissal of the appeal
-- a remedy that obviously would do petitioner no good, since he lost
in the district court.  An exception to that normal remedy is codified
in 28 U.S.C. 1631, which allows transfer to a different court "if it
is in the interest of justice." A transfer in this case would not be
in the interest of justice.

   It was petitioner himself who noticed an appeal to the D.C. Circuit
rather than the Federal Circuit.  More than a year passed between
filing of the notice of appeal and judgment, yet at no time did
petitioner call the alleged jurisdictional defect to the attention of
the court of appeals.  It was not until 13 days after the court
rendered its judgment, which was adverse to petitioner, that
petitioner raised the jurisdictional issue for the first time.  See
Pet. 11.  Moreover, for the reasons given by the court of appeals
(Pet. App. 9A n.3, 11A-25A), petitioner's substantive claims are
plainly without merit.  Therefore it would accomplish nothing but a
waste of judicial resources to force yet another court of appeals to
pass on this case.  Given the combination of petitioner's dilatoriness
and the lack of merit to his substantive claims, it certainly would
not be "in the interest of justice" to transfer the case to the
Federal Circuit.  Rather, if petitioner were to prevail on the
jurisdictional issue, the proper course would be to dismiss
petitioner's appeal to the D.C. Circuit and leave the judgment of the
district court intact.

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   OCTOBER 1988

   /1/ Petitioner's main argument on appeal was that the officer who
originally decided that his discharge would be less than honorable
violated Army regulations by not first obtaining the recommendations
of petitioner's intermediate commanders.  The court reasoned that the
Correction Board did not act in an arbitrary and capricious manner in
rejecting that argument, since the deciding officer's failure to
obtain recommendations from the lower officers did not affect his
legal authority as a decisionmaker, only the sufficiency of the data
that he used in his decision (Pet. App. 21A-24A).  The court
determined that petitioner's other arguments were "plainly without
merit" (id. at 9A n.3).

   /2/ Petitioner nowhere discusses the theory on which the D.C.
Circuit held that it had jurisdiction, so it is difficult to determine
the basis of his challenge to that theory.  Indeed, petitioner
describes this case -- quite incorrectly -- as one involving an
inadvertent "failure of * * * the Court of Appeals * * * to take
notice of the jurisdictional issue" (Pet. 13), rather than an
extensively reasoned resolution of the jurisdictional issue (Pet. App.
27A-42A).  If petitioner means to quarrel with the D.C. Circuit's
determination that any request he may have made for monetary relief
was ambiguous, then he has raised a fact-bound issue concerning the
reading of a particular record that is plainly not of the sort that
deserves this Court's review.

   /3/ By contrast, in Ballam v. United States, 474 U.S. 1078 (1986),
on which petitioner relies (Pet. 13-14), the opinion of the court of
appeals stated in its opening paragraph that the district court had
jurisdiction under the Little Tucker Act.  Ballam v. United States,
747 F.2d 915, 917 (4th Cir. 1984).  There was thus no room for debate
in Ballam about whether the Federal Circuit had exclusive appellate
jurisdiction under 28 U.S.C. 1295(a)(2).