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Case number 23-5088.

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David J. Rudemankin, appellant, versus Christine E. Wormuth in her capacity as the Secretary of the Army.

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Mr. Trieger, amicus curiae for the appellant, Mr. Walker for the appellate.

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Thank you, Judge Rao.

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May it please the Court, Alex Trieger, as Court appointed amicus for Mr. Rudemankin.

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I've reserved two minutes for rebuttal.

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The question here is whether the District Court lacked jurisdiction over Mr. Rudemankin's APA claims,

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because they trigger the Tucker Act.

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This court's decisions in Kidwell, Toodle, and Smalls supply the answer.

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No, because Mr. Rudemankan's complaint did not ask for money, but instead sought only meaningful, equitable relief.

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And if there were any question whether Mr. Rudemankan sought money, the district court should have given him a chance to cure that jurisdictional defect.

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Because the district court didn't, this court should reverse.

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On our first point, Kidwell, Toodle, and Smalls establish a bright line rule for determining whether a service member's APA claims trigger the Tucker Act.

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This court looks at whether the complaint explicitly or in essence seeks more than $10,000 from the government.

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And this court has explained that a complaint does not in essence seek money

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when it requests only meaningful, equitable relief.

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Applying?

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Mr. Trigger, assume I agree with you that Mr. Rudumetkin's claim is not one for money damages.

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And so there is jurisdiction over the APA claim.

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But Mr. Rudumetkin would still need to get past the motion to dismiss.

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And so there is a question about whether he can meet the standards of APA section 704.

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And in particular, the question about whether there's another adequate remedy.

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So if we get to that point, is that a question the court should resolve, or do we need to remand that to the district court?

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It's not a question the court should resolve, Judge Rao.

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And the reason is because the secretary has forfeited that argument.

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So that's our front line position.

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And then I'll turn to why I think that there is no adequate remedy in the claims court.

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Our position principally is that this court should not consider the secretary's arguments under 704 because the secretary forfeited them.

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That argument is not jurisdictional.

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The secretary did not raise it below in moving to dismiss.

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And the secretary before this court has identified no exceptional circumstances to excuse that forfeiture.

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And I'm not aware of any case from this court, and you can maybe ask the secretary to identify one, in which this court has considered non-jurisdictional APA defenses that an agency forfeited and where there was no showing of exceptional circumstances.

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And I would submit that this case should not be the first.

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But putting forfeiture aside and sort of getting to the merits of the question, I don't think Judge Rout that the claims court can provide Mr. Rudemank an adequate equitable relief.

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And that's for the reasons that the Fourth Circuit explained in Randall, which is that under the Tucker Act, the claims court can only provide equitable relief when it is an incident to or collateral of an award for damages.

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And that's not the case here.

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And the reason that that any equitable relief in the claims court would not be incidental to his claim for back pay is that Mr man can currently doesn't have a viable claim for back pay because according to the army, he's still an active service.

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And so a claim for back pay is only going to spring to life.

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if the claims court first agrees with him on the merits and grants him the equitable relief that he's asked for in that court, which is similar to here, which is a recognition that the rescission order was unlawful, that he was discharged and some sort of order requiring the secretary to recognize that.

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And so really it's the equitable relief that's driving his claims court action, not his request for back pay.

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And so it's a request that he also be released from incarceration.

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How does that factor into this analysis?

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I don't think it does, Judge Pan.

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I think it's a request that he's made that the district court didn't take seriously.

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And I don't think, frankly, the district court could grant.

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And the reason is, and this is the one thing I think the district court got right in its decision below, is that this is not a collateral attack on Mr. Rudamancon's court martial.

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Mr. Rudamancon is not challenging here or in the claims court.

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either the Army's jurisdiction to refer charges against him or the court martial or his sentence.

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We should just ignore that part of his complaint.

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Not ignore it Judge Pan, but I what I would say is first it's.

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indisputably equitable relief that he's seeking.

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It's not a request for money.

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So that doesn't trigger the Tucker Act.

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And so it doesn't factor into the jurisdictional analysis.

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What I do think, though, is it's a request for relief that the district court doesn't need to and indeed couldn't grant.

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And just to sort of button that up,

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What he's really challenging is the rescission of his separation order in January 2016, two years before the court martial.

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And I think it would be really odd to read the complaint as some sort of disguised habeas, particularly because Congress made clear in the APA, in Section 701B, that courts don't have jurisdiction under the APA to review court marshals.

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So to that sort of relief in subpart, I think it's D, of the prayer for relief, the court couldn't grant that.

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Mr. Trager, the government also suggests that that Mr. Rudy Ben can fail to exhaust his remedies before the army.

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And I'm wondering, is that claim properly before us?

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And if there is, is there any basis for this court to impose an exhaustion requirement?

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So

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I'll take the two parts of that question in turn.

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On the first part, whether it's before the court judge route, the answer is no.

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And that's because the secretary has doubly forfeited that argument.

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They didn't raise it below.

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And again, it's not jurisdictional.

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There's no exceptional circumstances to excuse that forfeiture.

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And then the army, or excuse me, the secretary has not presented that argument properly before this court by relegating it to a cursory footnote in their answering brief.

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And I would point you to the Markham decision from this court, which I think is on all fours here.

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There, this court said that the final agency action defense was forfeited where the petitioner filed suit, subsequently went back before the agency.

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And the agency just never informed the district court

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of the pending agency proceedings.

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And this court said, you had a fairly good defense under 704, but you've relinquished it by not presenting it.

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So I don't think the court should reach it.

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As to your second question, sort of putting forfeiture aside, what to do about it, I think if the court harbors concerns there, the court should remand

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because I don't think that the full record of the proceedings before the Army Board of Record Correction is before this Court.

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And it would be really hard, I think, to determine exactly what relief Mr. Rudemanken has requested before the Board, what the Board's reasoning was.

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And so that brings me, I think, to my second point.

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But also, is there an exhaustion requirement in this context?

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I'm sorry, the answer to that is no.

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Under Darby, the Supreme Court has made clear that an exhaustion requirement has to be found either in a statute or in the agency's regulations.

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And here there's neither.

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And I would point you to the Ostrow decision from this court, which I acknowledge is unpublished, but is on all fours, relying on Darby and explaining that there's no exhaustion requirement here.

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Judge made exhaustion doctrines, but I wonder if the military is possibly an exception to that because of the, you know, respect for for the executive branch in this context.

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I don't think so.

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Any basis for that.

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No, Judge Rao.

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And again, I think this court has rejected that argument.

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In Ostrow, I think a number of district courts, which we point out in our reply brief, similarly rejected this argument.

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The rescission order is a final agency action.

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And therefore, Mr. Rudemanken was free to challenge it without exhausting before the board.

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I do want to make sure I briefly address, though, my second point, which is that if there were any question whether Mr. Rudemanken sought money, the district court should have given him a chance to cure that jurisdictional defect.

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As this court explained in Goebel, when the Tucker Act is at play, the decision to remain in the district court is the plaintiff's choice.

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Mr. Rudemankan wasn't given that choice, and the district court's finding that amendment would have been futile was wrong.

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We know that

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Mr. Ruden Mencken would have relinquished the right to recover more than $10,000 from the government because he said that repeatedly in his submissions before the district court.

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And he's now said the same thing in his filings to this court.

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So it wasn't futile to cure the jurisdictional defect here.

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All Mr. Ruden Mencken had to do, if there was any question, was file an amended complaint that just expressly relinquished the right to recover against the secretary.

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And he's more than willing to do that.

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or if the court agrees with you that the complaint, as it is, is not a money complaint.

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Why would we need to address the denial of the motions of remand?

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You would not, Judge Ginsburg.

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In that scenario, if you agree with us that there's jurisdiction, you should just reverse with directions for the case to proceed forward.

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Thank you.

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Thank you.

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Good morning, Your Honors.

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Johnny Walker for the Secretary of the Army.

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Your Honors, over the course of two weeks, Mr. Ruder-Meckin filed two duplicate claims, one in the district court here and one of the United States Court of Federal Claims.

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Both of those cases challenge an order rescinding his retirement, and they both seek money connection to that rescission.

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The only difference is that Mr. Macon does it explicitly in the Court of Federal Claims by mentioning back pay and does it only essentially in the district court here by asking to be put in the same position had he retired in 2016.

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That necessarily would entail payment of back pay connected to the retirement as part of that make whole relief.

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Are there any cases in which we consider whether a claim is in essence

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for damages.

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I mean, it seems like under Kidwell and Toodle, that's not permitted.

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We just have to look at the complaint.

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And, you know, our cases have sort of have suggested that there's a bright line rule.

[00:10:55] Speaker 05:
Well, what Kidwell says is there is a bright line rule to look at the complaint only, but what Kidwell says is that the court has to be careful of plaintiffs who are disguising what are essentially money claims as equitable claims and therefore trying to form shop in the district court rather than to go to the Court of Federal Claims.

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And there's no clearer case of form shopping, I believe, than what Mr. Rudemeckin is doing here.

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He has duplicate claims pending in both the Court of Federal Claims and the District Court.

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So under Kidwell, the court should look to the substance, is the word that Kidwell uses, look to the substance and not only the form of the complaint to determine whether it essentially seeks money.

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And here it does, not only in the form of asking to be put in the same position had Mr. Rudemeckin retired in 2016,

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But there are also other structural aspects of this claim that make it appear as a TUCRAC claim and not an APA claim.

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The big one is that Mr. Rudemeckin has obtained a final agency action from the army by exhausting his claims through the board for the correction of military records.

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And in an APA case, it is that decision by the board and the record associated with that decision that is the final agency action under review.

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But Mr. Rudamechan here targets the underlying order that was issued in 2016 and that gives it the appearance of a Tucker Act claim.

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I think this is explained well in the Hanson case from the 10th Circuit that we cite that is not directly on point in terms of its holding but provides a useful discussion of the difference between an APA claim and a Tucker Act claim.

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It's also

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apparent, I think, in the Martinez case that we cite in the Federal Circuit, that notes that a Tucker Act claim accrues at the time of the original order and challenges that order, whereas an APA claim accrues at the time of the board's decision.

[00:12:42] Speaker 05:
So because Rudumetkin's claim here both challenges the underlying order and seeks make whole relief, including damages in its request to be put in the same position, it is a Tucker Act claim in essence and in substance and should be brought in the court of Federal claims.

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separate and apart from the jurisdictional Tucker aspects.

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There is also the argument that even if the court does have jurisdiction, and this is not a money claim, it is subject to dismissal under the APA because Mr. Ruedemeckin has another adequate remedy in the court of federal claims.

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I first want to get over this.

[00:13:15] Speaker 03:
Yeah.

[00:13:16] Speaker 03:
Let's talk about forfeiture.

[00:13:17] Speaker 05:
Sure.

[00:13:18] Speaker 05:
I don't think there's an appropriate case for forfeiture.

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I mean, this court has held

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that a fully briefed issue on a core legal tenant is subject to appellate review.

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Here, this was not part of the government's motion to dismiss in the district court.

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The court had its own suesponte reasons for dismissing the claim.

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Other adequate remedy was one of the reasons that the district court gave for the dismissal.

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It was raised by amicus in the opening brief and argued by amicus in the opening brief.

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So I don't think it's the amicus can argue that they were permitted to make that argument.

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But then we are blocked by forfeiture from responding to that argument and offering an argument on that issue of our own.

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And it's not just confined.

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That's on another point.

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So I don't think this is an appropriate case for forfeiture.

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It's fully briefed.

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It was part of the district court's decision.

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And it's an important issue.

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And I think it's a relatively straightforward issue, because you don't see many cases where the question of other adequate remedy is as easy as it is here, because you both have a theoretical other adequate remedy in the fact that we know the Court of Claims has held that the Army's retirement statutes are money-mandating statutes that can give rise to a Tucker Act claim in the Court of Federal Claims.

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and the Tucker Act itself specifically in the statutory's text says that the Court of Federal Claims can grant placement and appropriate retirement status in connection with the Tucker Act claim in the Court of Federal Claims.

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So not only is there a adequate remedy very clearly in theory, but here we also have that adequate remedy playing out in practice.

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Mr. Rudomeckin has in fact

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brought precisely that claim in the Court of Federal Claims, the government moved to dismiss but purely on ripeness grounds, and in that motion to dismiss, acknowledge that Mr. Rudameckin can challenge the rescission of his retirement as ultraviris in that court.

[00:15:11] Speaker 05:
The Court of Federal Claims ended up granting the motion to dismiss on ripeness, but that was overturned by the Federal Circuit.

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So Mr. Rudameckin's name is pending, but stayed in the Court of Federal Claims.

[00:15:22] Speaker 02:
So not only does he have- The simplest way to resolve this case is to say, well, the district court did err because it believed that this adequate remedy aspect was a jurisdictional issue as opposed to

[00:15:35] Speaker 02:
going to whether it's, um, he stated a claim under the APA.

[00:15:39] Speaker 02:
So that's wrong.

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And so we reverse and remand and let the district court sort through the rest of this.

[00:15:45] Speaker 05:
I don't, I don't think there's any reason to believe that the district court would reach a different issue, whether jurisdictional or non-jurisdictional, it is still a basis to dismiss the complaint where there's an other adequate remedy in another court.

[00:15:56] Speaker 02:
Except that you didn't argue it that way.

[00:15:58] Speaker 05:
Again, we didn't argue it that way, but it was part of the district court's opinion.

[00:16:01] Speaker 05:
It was argued by Amicus in the opening brief.

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We responded to it in our brief.

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It's a fully briefed issue that the court has before it, and we think it's a basis to affirm, given that the district court would reach the same decision on a 12b6 posture.

[00:16:15] Speaker 03:
What about exhaustion?

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I mean, the government here suggests that Mr. Rudameckin didn't exhaust his claims.

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Is that properly before us?

[00:16:25] Speaker 05:
I'm glad you brought that up, Your Honor.

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I first want to clarify the nature of the government's argument.

[00:16:29] Speaker 05:
Our argument is not that Minister Rudameckin had to exhaust.

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That's frankly a difficult question, how this circuit's decision in Boyes plays out pro starby.

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Boyes, of course, was based on unique considerations relative to the military.

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It recognized a well-recognized and well-documented and well-established principle that courts generally defer from interfering in direct orders from a commander to

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a member of the military, and instead wait for the intraservice remedies to play out.

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Darby dealt with a civilian final agency action.

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So there's a difficult question there.

[00:17:02] Speaker 05:
It hasn't been briefed in this court.

[00:17:03] Speaker 05:
And our argument is not that Mr. Rudamechan had to exhaust and that he failed to exhaust.

[00:17:08] Speaker 05:
Our argument is precisely the opposite, that he did exhaust.

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But by doing so, he obtained a final agency action in the

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form of a decision from the board for the correction of military records.

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And it is only that final decision from the board that is subject to APA review.

[00:17:28] Speaker 03:
I also just had, are there any just disability concerns about this court deciding the APA claim before the military courts have finished with with their process?

[00:17:38] Speaker 03:
I know that's not something the government has briefed here either, but there are some

[00:17:43] Speaker 03:
You know, there's there are some concerns about that that have been expressed in other cases.

[00:17:48] Speaker 05:
I think that is true.

[00:17:48] Speaker 05:
I think that those concerns are expressed in boys and in the Mindy's case from the Fifth Circuit that it relies on.

[00:17:53] Speaker 05:
And I don't think there's anything about Darby or anything from this or post Darby that I know of that directly addresses.

[00:18:00] Speaker 05:
those concerns and reconciles them with Darby.

[00:18:03] Speaker 05:
Again, though, that's not the nature of our argument.

[00:18:05] Speaker 05:
Our argument is that Mr. Rudemeckin did exhaust his administrative remedies, whether required to or not.

[00:18:11] Speaker 05:
The fact is that he did.

[00:18:12] Speaker 05:
He did it while the suit was pending to go to the forfeiture point.

[00:18:17] Speaker 03:
By the time the government... Not about exhaustion.

[00:18:18] Speaker 03:
I mean, the fact that the process is still... His appeals are still pending in the military courts, aren't they?

[00:18:24] Speaker 05:
Yes, they are still pending in the military courts.

[00:18:27] Speaker 05:
And that's sort of a separate issue.

[00:18:29] Speaker 05:
He's not directly

[00:18:30] Speaker 05:
I think he has exhausted through interest service remedies through the board his request for a retroactive retirement.

[00:18:37] Speaker 03:
The question was about the courts.

[00:18:39] Speaker 05:
Yes.

[00:18:40] Speaker 05:
And I think that does raise a concern, Your Honor, because he has raised this before the court martial.

[00:18:44] Speaker 05:
I don't know that there's an exhaustion requirement that he do throw do so before the court martial.

[00:18:48] Speaker 05:
But if this case were to go forward in the district court, we think it would be prudent to do precisely what the Federal Circuit ordered the Court of Federal Claims to do, which is to stay the case pending the outcome of the court martial proceedings.

[00:19:00] Speaker 05:
I just wanted to address the issue of exhaustion with respect to finality really quickly that my friend brought up.

[00:19:09] Speaker 05:
This is not something that we can find, or not exhaustion, but final agency action is properly characterized.

[00:19:15] Speaker 05:
Our final agency action argument was not something that we can find to a footnote.

[00:19:19] Speaker 05:
We discussed it at some length on pages 35 to 38 of our brief.

[00:19:26] Speaker 05:
And we believe it is well-preserved.

[00:19:28] Speaker 05:
And again, the reason that it was not raised by the government in its motion to dismiss is that the board decision here did not issue until after the government moved to dismiss.

[00:19:36] Speaker 05:
And it was only sort of in Mr. Rudameckin's reconsideration papers in the district court that he began attempting to reframe his claims as a challenge to that final agency action in the form of the board's final decisions.

[00:19:48] Speaker 05:
Now, importantly, Mr. Rudameckin can still bring that claim.

[00:19:52] Speaker 05:
Those decisions were just issued in 2002 and 2004.

[00:19:55] Speaker 05:
the statute of limitations would run from that time, and the district court's dismissal here was without prejudice.

[00:20:02] Speaker 05:
So to the extent that he can overcome other hurdles, he could bring those claims notwithstanding the statute of limitations and the final agency action requirement.

[00:20:16] Speaker 05:
Thank you, Your Honor.

[00:20:17] Speaker 05:
Please affirm the district court.

[00:20:32] Speaker 04:
Starting with jurisdiction, the secretary is arguing to this court that Mr. Rudemankan's complaint essentially seeks money based on the complaint he filed in the claims court, echoing the reasoning of the district court.

[00:20:45] Speaker 04:
That is inconsistent with what the secretary said on page 24 of her red brief that the court should determine jurisdiction based only on the complaint filed in DDC, which, again, is this court's strict pleading requirement.

[00:20:59] Speaker 04:
It looks to the four corners

[00:21:00] Speaker 04:
complaint before it.

[00:21:01] Speaker 04:
The secretary's argument is also inconsistent with Toodle and Smalls.

[00:21:05] Speaker 04:
In both of those cases, the plaintiff had filed other complaints in other federal courts where they explicitly requested money.

[00:21:13] Speaker 04:
And yet this court didn't look at those complaints and didn't compare the complaints in the other federal forum to the complaint filed in DDC.

[00:21:21] Speaker 04:
It looked only at the four corners of the complaint filed in this district to determine whether that complaint triggered the Tucker Act.

[00:21:29] Speaker 04:
And to the extent that the court has any concerns about sort of Mr. Ruda-Mankin's dual proceedings, I would submit that this court has a well-trod path for handling those situations in which the first-in-time case proceeds and the subsequent case is stayed.

[00:21:43] Speaker 04:
And so what should have happened here is Mr. Ruda-Mankin's first-in-time district court action should have gone forward while the claims court should have waited.

[00:21:50] Speaker 04:
On forfeiture,

[00:21:53] Speaker 04:
I think Judge Pan, you're exactly right that these arguments, because they're not jurisdictional and they weren't raised below, and there are no exceptional circumstances to excuse the forfeiture, the court shouldn't reach those issues.

[00:22:04] Speaker 04:
Instead, the court should reverse and remand.

[00:22:06] Speaker 04:
And if the secretary wants to raise them, it can do so later in the proceeding, such as summary judgment.

[00:22:12] Speaker 04:
And so for those reasons, we'd ask the court to reverse and remand.

[00:22:16] Speaker 03:
Thank you.

[00:22:17] Speaker 04:
Thank you.

[00:22:18] Speaker 03:
Case is submitted.