Rudometkin v. United States

Case: 22-1701 Document: 55 Page: 1 Filed: 12/15/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID J. RUDOMETKIN,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-1701
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01546-EGB, Senior Judge Eric G. Bruggink.
______________________
Decided: December 15, 2022
______________________
DAVID J. RUDOMETKIN, Fort Leavenworth, KS, pro se.
ANNE DELMARE, Civil Division, Commercial Litigation
Branch, United States Department of Justice, Washington,
DC, for defendant-appellee. Also represented by BRIAN M.
BOYNTON, STEVEN JOHN GILLINGHAM, PATRICIA M.
MCCARTHY, DOUGLAS K. MICKLE.
______________________
Before DYK, REYNA, and CUNNINGHAM, Circuit Judges.
Case: 22-1701 Document: 55 Page: 2 Filed: 12/15/2022
2 RUDOMETKIN v. US
PER CURIAM.
David J. Rudometkin appeals an order from the Court
of Federal Claims (“Claims Court”) dismissing his com-
plaint for lack of jurisdiction. We reverse and remand with
instructions to stay the case until the court-martial pro-
ceedings against Mr. Rudometkin are resolved.
BACKGROUND
Mr. Rudometkin began serving in the United States
Army on October 9, 1995. On August 13, 2015, the U.S.
Army Human Resources Command notified Mr.
Rudometkin that he was not selected for promotion to the
next higher grade and must be involuntarily retired per 10
U.S.C. § 632. The U.S. Army Installation and Manage-
ment Command Headquarters, United States Army Garri-
son - Redstone (“Installation Management Command”)
issued retirement orders for Mr. Rudometkin with an effec-
tive date of retirement of January 31, 2016. On January
29, 2016, a Staff Judge Advocate requested that Mr.
Rudometkin’s retirement orders “be revoked pending [a]
criminal investigation against him with a review toward
court-martial” pursuant to Army Regulation 600-8-24, par-
agraphs 1-17 and 6-3. S.A. 3. 1 That same day, Installation
Management Command rescinded Mr. Rudometkin’s re-
tirement orders.
On February 2, 2018, a military judge, sitting as a gen-
eral court-martial, initially found Mr. Rudometkin guilty
of multiple charges in violation of the Uniform Code of Mil-
itary Justice. At that time, Mr. Rudometkin was sentenced
to a twenty-five-year confinement and a dismissal. On
March 12, 2018, the military judge resentenced Mr.
Rudometkin to a seventeen-year confinement and a dismis-
sal. Mr. Rudometkin has challenged his conviction, and
1 “S.A.” refers to the supplemental appendix filed
with the government’s brief.
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RUDOMETKIN v. US 3
the proceedings are ongoing. Most recently, the Court of
Appeals for the Armed Forces reversed a decision of the
Army Court of Criminal Appeals. The result is that the
conviction is subject to further review. See United States
v. Rudometkin, 82 M.J. 396, 402 (C.A.A.F. 2022).
On July 2, 2021, Mr. Rudometkin filed a complaint
against the United States in the Claims Court alleging that
the Army unlawfully revoked his retirement orders and
seeking “declaratory and injunctive relief by order direct-
ing Defendant to place Plaintiff in appropriate involuntary
retirement status as required by statute 10 U.S.C.
§ 632(a)(2)-(b) and to back pay the Plaintiff . . . since 31
January 2016.” Complaint at ¶ 1, Rudometkin v. United
States, No. 1:21-cv-01546 (Fed. Cl. July 2, 2021). Mr.
Rudometkin also alleged that the Army failed to follow its
own regulations.
The government moved to dismiss for lack of subject
matter jurisdiction because Mr. Rudometkin’s claim was
not ripe due to the ongoing court-martial proceedings. Mr.
Rudometkin filed a response and moved for summary judg-
ment. On March 11, 2022, the Claims Court granted the
government’s motion to dismiss for lack of subject matter
jurisdiction and denied Mr. Rudometkin’s motion for sum-
mary judgment. Mr. Rudometkin appeals. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review dismissals for lack of subject matter juris-
diction de novo. Frazer v. United States, 288 F.3d 1347,
1351 (Fed. Cir. 2002). We hold that the government has
not established a lack of ripeness preventing the Claims
Court from exercising jurisdiction, but that the Claims
Court should stay the case until the court-martial proceed-
ings are resolved.
Mr. Rudometkin’s claim is that he ought to have been
retired automatically by operation of 10 U.S.C. § 632(a)
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4 RUDOMETKIN v. US
and that the order revoking his retirement order had no
legal effect. The Claims Court held that “[t]he issue of
whether the Army appropriately revoked plaintiff’s retire-
ment orders is central to the direct appeal of his court-mar-
tial because a military officer punitively discharged from
the Army loses his eligibility for retirement.” S.A. 102. Ac-
cordingly, the Claims Court dismissed Mr. Rudometkin’s
complaint for lack of ripeness.
While a punitive discharge would result in the loss of
eligibility for retirement pay, see Hooper v. United States,
326 F.2d 982, 988 (Ct. Cl. 1964), Mr. Rudometkin’s claim is
ripe despite the unresolved court-martial proceedings.
Ripeness is a question of “whether the injury is too contin-
gent or remote to support present adjudication.” 13B
Charles Alan Wright, Arthur R. Miller, & Edward H.
Cooper, Federal Practice and Procedure § 3532.1, at 383 (3d
ed. 2008). There is nothing remote about Mr.
Rudometkin’s allegations. Mr. Rudometkin alleges that he
was unlawfully denied retirement and, as a consequence,
is entitled to back pay. The question of whether the gov-
ernment lawfully revoked Mr. Rudometkin’s retirement or-
ders does not depend on further factual developments. See
Duke Power Co. v. Carolina Envt’l Study Grp., 438 U.S. 59,
82 (1978) (holding claims ripe where further factual devel-
opment “would not, in our view, significantly advance our
ability to deal with the legal issues presented nor aid us in
their resolution”). Here, there is a question of a possible
lack of ripeness of the government’s defense. But the gov-
ernment cites no appellate authority that suggests that
lack of ripeness of a defense makes the claim unripe.
Under these circumstances, dismissal is not appropri-
ate. The appropriate resolution is to stay the case pending
the final outcome of the court-martial proceedings. See
Crane v. Fauver, 762 F.2d 325, 326 (3d Cir. 1985) (“[W]e
hold that the district court should have retained jurisdic-
tion over this action while staying it pending the outcome
of a related state proceeding.”); Deakins v. Monaghan, 484
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RUDOMETKIN v. US 5
U.S. 193, 202 (1988) (citing Crane with approval, and hold-
ing that dismissal is not appropriate in the context of
Younger abstention). A stay is particularly appropriate
given that the final outcome of the court-martial proceed-
ings will likely determine whether—or at least, to what ex-
tent—the government is liable to Mr. Rudometkin, 2 and
the legality of the revocation of Mr. Rudometkin’s retire-
ment orders is central to the court-martial proceedings as
well as the Claims Court case.
CONCLUSION
Because we find that the Claims Court had jurisdic-
tion, we reverse and remand with instructions to the
Claims Court to stay the case pending the resolution of the
court-martial proceedings. 3
REVERSED AND REMANDED
COSTS
Costs to the appellant.
2 Even if Mr. Rudometkin is punitively discharged,
Mr. Rudometkin claims that there is an issue as to entitle-
ment to retirement pay between the date Mr. Rudometkin
claims he ought to have been retired and the date of the
conviction. At this stage, we decline to address this issue.
3 Mr. Rudometkin has moved to supplement the rec-
ord with documents that were not before the Claims Court.
These documents relate to his claim that his retirement
took effect. Because we do not decide the issue on appeal,
Mr. Rudometkin’s motion is denied as moot.