Almy et al v. United States Department of Defense et al

Filing 32

RESPONSE (re 19 MOTION to Transfer Case to the Court of Federal Claims, Or, In the Alternative, To Dismiss Action ) filed byMichael D. Almy, Jason D. Knight, Anthony J. Loverde. (Woodmansee, Mark) (Filed on 4/14/2011)

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M. ANDREW WOODMANSEE (CA SBN 201780)
[e-mail]
STEPHANIE L. FONG (CA SBN 240836)
[e-mail]
KIMBERLY R. GOSLING (CA SBN 247803)
[e-mail]
JESSICA A. ROBERTS (CA SBN 265570)
[e-mail]
MORRISON & FOERSTER LLP
12531 High Bluff Drive
San Diego, California 92130-2040
Telephone: [phone]
Facsimile: 858.720.5125
JOHN M. GOODMAN (DC SBN 383147)
[e-mail]
AARON D. TAX (DC SBN 501597)
[e-mail]
SERVICEMEMBERS LEGAL DEFENSE NETWORK
P. O. Box 65301
Washington, DC 20035-5301
Telephone: [phone]
Facsimile: 202.797.1635
Attorneys for Plaintiffs
MICHAEL D. ALMY, JASON D. KNIGHT,
AND ANTHONY J. LOVERDE

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL ALMY, JASON KNIGHT, and
ANTHONY LOVERDE,
Plaintiffs,

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v.
UNITED STATES DEPARTMENT OF
DEFENSE; ROBERT M. GATES, Secretary
of Defense; DEPARTMENT OF THE AIR
FORCE; MICHAEL B. DONLEY, Secretary,
Department of the Air Force; DEPARTMENT
OF THE NAVY; and RAY MABUS,
Secretary, Department of the Navy,

Case No. cv 10-5627 (RS)
PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION TO
TRANSFER ACTION TO UNITED
STATES COURT OF FEDERAL
CLAIMS, OR, IN THE
ALTERNATIVE TO DISMISS
ACTION
Date: May 5, 2011
Time: 1:30 p.m.
Dept.: Courtroom 3

Defendants.

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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER ACTION TO UNITED STATES COURT OF
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TABLE OF CONTENTS
Page

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I.

INTRODUCTION ............................................................................................................... 1

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II.

STATEMENT OF FACTS .................................................................................................. 2

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III.

ARGUMENT ....................................................................................................................... 3

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A.

Defendants’ Motion To Transfer/Dismiss Should Be Denied Because the Court
Has Jurisdiction........................................................................................................ 3

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1.

Service Credit Is An Equitable Remedy And Not “Money Damages”........ 3

2.

Defendants’ Arguments Regarding Back Pay Are Without Merit............... 6

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B.

The Court Of Claims Does Not Have Jurisdiction Over Plaintiffs’ Equitable
Reinstatement Claim. ............................................................................................... 8

C.

Defendants’ Motion To Transfer/Dismiss Is Moot As Plaintiffs Have Filed A
Motion For Leave To File An Amended Complaint................................................ 9

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IV.

CONCLUSION .................................................................................................................. 11

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TABLE OF AUTHORITIES

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Page(s)
CASES

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Bowen v. Massachusetts,
487 U.S. 879 (1988) .................................................................................................................. 4
Breier v. Northern California Bowling Proprietors’ Ass’n,
316 F.2d 787 (9th Cir. 1963)................................................................................................... 10
Dilley v. Alexander,
627 F.2d 407 (D.C. Cir. 1980) .................................................................................................. 4

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Hubbard v. Administrator, EPA,
982 F.2d 531 (D.C. Cir. 1992) .............................................................................................. 7, 8
James v. Caldera,
No. C-1779-VRW, 1999 U.S. Dist. LEXIS 18502 (N.D. Cal. Nov. 24, 1999) .................... 6, 7
Larsen v. United States Navy,
346 F. Supp. 2d 122 (D.D.C. 2004) .......................................................................................... 7

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Meinhold v. United States Dep’t of Defense,
34 F.3d 1469 (9th Cir. 1994)............................................................................................. 4, 5, 6
Richardson v. United States,
336 F.2d 265 (9th Cir. 1964)................................................................................................... 10
Rowe v. United States,
633 F.2d 799 (9th Cir. 1980)..................................................................................................... 8

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Washington v. Garrett,
10 F.3d 1421 (9th Cir. 1993)..................................................................................................... 5
Weber v. Dep’t of Veterans Affairs,
521 F.3d 1061 (9th Cir. 2008)............................................................................................... 7, 8
Wilkins v. United States,
279 F.3d 782 (9th Cir. 2002)..................................................................................................... 8

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Witt v. United States Dep’t of the Air Force,
No. 06-5195, 2010 WL 3522519 (W.D. Wash. Sept. 7, 2010)............................................. 7, 9

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STATUTES

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5 U.S.C. § 702 ................................................................................................................................. 4

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28 U.S.C. § 1491(a)(2)................................................................................................................ 8, 9

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MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION

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Plaintiffs Michael D. Almy, Jason D. Knight and Anthony J. Loverde (collectively,

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“Plaintiffs”) want to serve their country. They were illegally discharged under Don’t Ask, Don’t

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Tell (“DADT”) and filed their complaint asking the Court to reinstate them to active duty. In

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their complaint they did not seek back pay or lost wages; they sought only the opportunity to

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serve again. And if the Court were to grant Plaintiffs the honor to serve in the military again, they

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also asked that the Court award them credit for time they would have served if they had not been

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illegally discharged (“service credit”). This service credit would allow Plaintiffs to retire if they

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complete twenty years of active service from the date of their original enlistment.
Defendants have not opposed the merits of Plaintiffs’ complaint, but instead have engaged

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in a delay tactic by filing this motion to transfer, or in the alternative, dismiss (“Motion to

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Transfer/Dismiss). Defendants premise their motion on their claim that Plaintiffs’ request for

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service credit seeks “money damages”. As a result, Defendants contend, this Court should divest

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itself of jurisdiction and transfer Plaintiffs’ claim to the Court of Federal Claims (“Court of

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Claims”) or dismiss Plaintiffs’ complaint. Defendants continue to seek this extraordinary relief,

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even in the face of Plaintiffs’ proposed amended complaint which eliminates the request for

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service credits, the purported basis for Defendants’ motion. Defendants refused to stipulate that

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Plaintiffs be permitted to file the amended complaint.

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This Court should deny the motion to transfer because Defendants are wrong on the law.

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The request for service credit is an equitable remedy which is not “money damages” under the

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APA or Little Tucker Act. See Section III.A, infra. In addition, the Court cannot transfer this

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case to the court of Claims because that court lacks jurisdiction to hear Plaintiffs’ reinstatement

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claims. See Section III.B, infra. Finally, the Court will hear Plaintiffs’ motion to amend at the

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same time as Defendants’ motion to transfer (Pltfs.’ Mot. For Leave to File First Amended

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Complaint, ECF. No. 30), and there is no reason for the Court to deny that motion. See Section

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III.C, infra.

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Defendants’ refusal to stipulate to Plaintiffs’ filing an amended complaint and improper

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attempt to transfer or dismiss Plaintiffs’ case demonstrates that their goal is to delay the Court’s

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consideration of the merits of Plaintiffs’ constitutional claims. As evidenced by their proposed

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amended complaint, Plaintiffs’ priority is to return to military service immediately. If the Court

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grants Plaintiffs’ motion for leave to file their amended complaint, the service credit (which is the

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purported basis for Defendants’ motion) will no longer be at issue and Defendants’ motion to

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transfer would be moot.

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II.

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STATEMENT OF FACTS
Plaintiff Michael D. Almy was an officer in the United States Air Force for thirteen years.

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(See Compl. ¶¶ 19-34.) Plaintiff Anthony J. Loverde served as a member of the Air Force for

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seven years. (See Compl. ¶¶ 37-45.) Plaintiff Jason D. Knight served as a member of the United

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States Navy for five years. (See Compl. ¶¶ 48-57.) During their terms of service, Plaintiffs each

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received numerous military awards and accolades. (See Compl. ¶¶ 27, 39 and 53.) Despite their

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distinguished service records, Plaintiffs were each discharged against their will under DADT.

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(See Compl. ¶¶ 34, 45 and 57.)

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Plaintiffs’ complaint alleges that Defendants violated each Plaintiff’s substantive due

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process rights under the Fifth Amendment, denied them equal protection under the Fifth

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Amendment and violated their First Amendment rights. (See Compl. ¶¶ 59-102.) To discharge

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any service member under DADT, the military must prove that the application of DADT in that

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specific instance significantly furthers, and is necessary to further, the government’s interest in

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military morale, good order and discipline, and unit cohesion. Defendants did not meet their

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burden. Had Plaintiffs not been discharged, they each would have remained on active duty and

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continued to serve in the armed forces to this day. (See Compl. ¶¶ 35, 45, 58.) Through this

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action, Plaintiffs do not seek lost wages or any other type of financial benefit associated with the

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lost wages such as medical care reimbursement, housing credits and/or rations that they would

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have received if they had not been discharged (collectively referred to as “back pay”). (See

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Compl. ¶¶ 35, 45, 58; Defts’ Mot. to Transfer at 2, ln. 11.) Instead, Plaintiffs seek declaratory

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and injunctive relief and have requested only reinstatement to active duty and service credit for
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time they would have served if they had not been discharged and, in the case of Plaintiff Almy,

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the promotion to Lieutenant Colonel for which he had been recommended. (See Compl. at 19.)

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III.

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ARGUMENT
Defendants’ motion to transfer should be denied on its own merits for two reasons. First,

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the cases make clear that this Court has jurisdiction to order that Plaintiffs receive the service

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credits they seek in connection with their reinstatement into the armed forces. Second, the Court

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of Federal Claims does not have jurisdiction to reinstate Plaintiffs, so this Court would retain

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jurisdiction over Plaintiffs’ main request for relief even if the service credit issue were

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transferred. In addition, Plaintiffs’ request to amend their complaint would eliminate the basis for

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Defendants’ transfer motion, making it moot.

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A.

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Defendants’ Motion To Transfer/Dismiss Should Be Denied Because
the Court Has Jurisdiction.

Defendants’ motion to transfer is premised on their assertion that Plaintiffs here seek
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“money damages”. The complaint, however, seeks only equitable relief of the sort that this Court
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may grant. Defendants do not dispute that this Court has jurisdiction to order that Plaintiffs be
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reinstated, but argue that Plaintiffs’ request for service credit is not equitable but rather a claim
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for “money damages” which requires that the entire action be transferred to the Court of Claims.
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The requested service credit is not money damages. Because that remedy is equitable in nature,
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the waiver of sovereign immunity under the APA applies, and the Court has jurisdiction to grant
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the requested relief.
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1.

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Service Credit Is An Equitable Remedy And Not “Money
Damages”.

Defendants erroneously argue that there has been no waiver of sovereign immunity

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because Plaintiffs seek “money damages” via their request for service credit. The fact is, of

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course, that Plaintiffs’ complaint does not seek the payment of any money whatsoever. Even if it

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did, however, the payment of money can be part of the sort of equitable relief as to which the

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Defendants have waived sovereign immunity. Therefore, Plaintiffs’ request for service credit is

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certainly an equitable remedy subject to the APA’s waiver of sovereign immunity.

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Courts have acknowledged a clear distinction between an action at law for damages and

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an equitable action for specific relief. In Bowen v. Massachusetts, 487 U.S. 879 (1988), the

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Supreme Court held that the mere fact that a plaintiff has requested money does not mean that a

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suit is an action for money damages to which the broad waiver of sovereign immunity set forth in

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5 U.S.C. § 702 does not apply.

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Our cases have long recognized the distinction between an action at law for
damages – which are intended to provide a victim with monetary compensation
for an injury to his person, property, or reputation – and an equitable action for
specific relief – which may include an order providing for the reinstatement of an
employee with back pay . . . . The fact that a judicial remedy may require on party
to pay money to another is no sufficient reason to characterize the relief as
“money damages”.
Bowen, 487 U.S. at 893 (emphasis added).

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Judicial relief for a service member who has been wrongfully discharged is premised on
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the central principle of making the injured service member “whole.” Dilley v. Alexander, 627
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F.2d 407, 413 (D.C. Cir. 1980). A court’s remedy must attempt to restore such successful
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plaintiffs to the position they would have occupied “but for” their illegal release from duty. See
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id. Here, but for their illegal discharge from duty under DADT, Plaintiffs would still be serving
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in the military, and the Court’s remedy should recognize that fact.
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The relief sought by Plaintiffs “is consistent with the general rule that a plaintiff is entitled
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to receive the benefits of constructive active duty from the date of his erroneous release until the
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date he is restored to active duty.” Dilley, 627 F.2d at 411. Like the plaintiffs in Dilley, these
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Plaintiffs “have never been lawfully discharged, so in the eyes of the law, they remain in service.”
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As the D.C. Circuit noted, “It would be a grave injustice to restrict relief in this case to a delayed
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reinstatement of appellants without awarding them credit for constructive service,” precisely the
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relief Plaintiffs in this case seek. “This relief is consistent with the general rule that a plaintiff is
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entitled to receive the benefits of constructive active duty from the date of his erroneous release
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until the date he is restored to active duty.” Id.; see also Meinhold v. United States Dep’t of
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Defense, 34 F.3d 1469, 1480 (9th Cir. 1994) (reinstating wrongfully-discharged officer to the
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Navy); Washington v. Garrett, 10 F.3d 1421 (9th Cir. 1993) (ordering reinstatement with back

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pay and benefits).

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The District Court for the Eastern District of California discussed the distinction in Poole
v. Rourke:
Damages are given to the plaintiff to substitute for a suffered loss, whereas
specific remedies are not substitute remedies at all, but attempt to give the
plaintiff the very thing to which he was entitled. Thus, while in many instances an
award of money is an award of damages, occasionally a money award is also a
specie remedy.

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779 F. Supp. 1546, 1555-56 (E.D. Ca. 1991). In Poole, the District Court granted summary
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judgment in favor of discharged Air Force staff sergeant and ordered defendants to correct
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plaintiff’s service records to reflect constructive service during the time he had been improperly
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discharged, to pay back pay and to retire plaintiff with full pay and benefits commensurate to his
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years of service, among other remedies. Id. at 1553. Defendants challenged the court’s order and
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moved to transfer to the Court of Claims on the basis that the Little Tucker Act precluded the
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Court from awarding this relief because it was money damages. The court denied defendants’
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motion and held:
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[T]he court concludes that plaintiff’s claims are not for money damages. In his
original complaint, plaintiff sought only mandamus, prohibition and a preliminary
and permanent injunction, together with “such other relief as the court deems just
and proper,” in order to effect rescission of the order discharging him from
service and to permit him to complete his current enlistment. Plaintiff has never
requested money; he merely wanted his job back. His assertion that ‘the
injunctive and declaratory relief sought by and awarded to the plaintiff have value
far above and beyond the derivative pecuniary award entailed therefrom’ is
compelling. As other courts have noted: It would be demeaning to justice and to
respect for the non-monetary concerns of former officers, for this court to hold
that plaintiff’s claims for invalidity of his conviction and discharge are necessarily
masks for a subsequent claim of monetary relief. At least as important as back pay
are a man’s career, his livelihood, his rights as a veteran, his status as a convicted
criminal, and his reputation.

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Id. at 1556 (internal citations and quotations omitted). The court also found that the plaintiff’s

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claim would not have been cognizable in the Court of Claims, because, although the Court of

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Claims may employ equitable doctrines, it may not hear a claim that requests only equitable

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relief. Id. at 1556.

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As Poole makes clear, where a plaintiff genuinely seeks equitable relief against the

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military, even where the equitable relief may lead to an award of money, jurisdiction exists in

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federal district court. Id. at 1557; see also James v. Caldera, No. C-1779-VRW, 1999 U.S. Dist.

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LEXIS 18502, at *19 (N.D. Cal. Nov. 24, 1999) (ordering plaintiff’s record corrected to reflect

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twenty years of active duty service so that he may receive retirement benefits). This same

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rationale has been applied by the Ninth Circuit in Beller v. Middendorf, where plaintiff sought

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back pay, as well as injunctive relief to prevent his discharge. 632 F.2d 788 (9th Cir. 1980),

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overruled on other grounds by, 527 F.3d 806 (9th Cir. 2008). The Beller court rejected

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defendants’ contention that the suit was barred by sovereign immunity and held that the APA

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waived sovereign immunity as a bar to the plaintiff’s suit which was properly bought for a

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violation of his Fifth Amendment rights.

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Plaintiffs, like the plaintiffs in the cases discussed herein, have not requested any type of

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money damages. Plaintiffs’ original complaint plainly states that they seek only equitable relief

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in the form of reinstatement and credit towards retirement. This Court has jurisdiction under the

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APA to decide Plaintiffs’ claims, and Defendants’ motion should be denied.

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2.

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Defendants’ Arguments Regarding Back Pay Are Without
Merit.

Defendants’ motion is largely based on their flawed premise that Plaintiffs’ request for

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service credit is equivalent to other remedies “plaintiffs typically seek” such as back pay,

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allowances (housing credits and rations), and medical care reimbursement. (See Defts’ Mot. to

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Transfer at 2, ln. 4-9.) But, as set forth in detail above, those remedies are not at issue. Plaintiffs’

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original complaint expressly disclaimed back pay and did not seek allowances or medical care

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reimbursement.

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Moreover, none of the cases cited by Defendants dictate the outcome of Defendants’

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motion. Each of these cases cited by Defendants is distinguishable because the plaintiff was

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seeking back pay which, if awarded, would have a resulted in monetary payment by defendant.
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See Hubbard v. Administrator, EPA, 982 F.2d 531, 532-33 (D.C. Cir. 1992) (plaintiff sought

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instatement and back pay); Witt v. United States Dep’t of the Air Force, No. 06-5195, 2010 WL

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3522519, at *1 (W.D. Wash., Sept. 7, 2010) (plaintiff sought reinstatement, back pay and service

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credits); Weber v. Dep’t of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008) (plaintiff sought

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back pay and benefits); Larsen v. United States Navy, 346 F. Supp. 2d 122, 128 (D.D.C. 2004)

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(plaintiffs sought instatement, constructive credit for active duty, award of retirement pay and

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back pay compensation).

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Defendants, tellingly, cite no law in support of their proposition that a request solely for

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“service credits” equates to a request for “money damages.” Plaintiffs have not, as Defendants

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argue, “dress[ed] up a claim for money as one for equitable relief” (Defts’ Mot. to Transfer at 4).

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Plaintiffs’ original complaint was clear in disclaiming past wages, and the prayer for relief did not

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seek housing credits or medical reimbursement. Plaintiffs made clear that the only remedy they

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sought — reinstatement on active duty — was equitable in nature. And cases from within the

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Ninth Circuit and elsewhere make clear that service credits, which Plaintiffs also requested, are

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equitable and not “monetary.” See, e.g., Poole, 779 F.Supp. at 1557; Caldera, 1999 US. Dist.

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Lexis 18502 at * 19. For the avoidance of doubt, however, Plaintiffs have sought leave to file an

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amended complaint to eliminate any concern the Court may have that service credit may be

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construed as “monetary,” thus delaying their return to active duty.

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Defendants’ citation to Witt also does not support their request to transfer this case in its

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entirety. First, the plaintiff in Witt specifically requested back pay. But Plaintiffs here

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specifically disclaimed any claim for back pay in their original complaint. That the district court

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in Witt determined a request which included back pay should be heard in the Court of Claims

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does not control whether Plaintiffs’ request here solely for service credits must be transferred to

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the Court of Claims. Second, while the defendants are correct in stating that the district court in

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Witt concluded that her request for back pay and retirement credits was a form of money

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damages, the district court did not transfer Major Witt’s case to the Court of Claims. Rather, the

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district court retained jurisdiction over, and proceeded to resolve, Witt’s claim for reinstatement,

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observing that claims for back pay and service credits could be heard by the Court of Claims.
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Finally, Defendants’ citation (Mot. at 5:7-16) to other cases purporting to hold that

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“service credits” are money damages do not stand for that proposition at all. Defendants’ brief

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attempts to blur the distinction between service credits (credit towards retirement for time they

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would have served but for their illegal discharges) and back pay. Defendants’ citations at page 5

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of their opening brief to Weber and Hubbard are inapposite. Those cases explicitly refer to “back

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pay as a claim for money damages.” None of the courts in cases cited by Defendants discussed at

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all whether only “service credits” are “money damages.”

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B.

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The Court Of Claims Does Not Have Jurisdiction Over Plaintiffs’
Equitable Reinstatement Claim.

Even if the Court determines that service credits are monetary damages subject to the
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Court of Claims jurisdiction, this entire action cannot be transferred to that court. (See Defts’
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Mot. to Transfer at 5-6.) Rather, Plaintiffs’ equitable claims for reinstatement would remain in
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this Court and only Plaintiffs’ alleged monetary claim for service credits would be dismissed
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and/or transferred to the Court of Claims. See Rowe v. United States, 633 F.2d 799, 802 (9th Cir.
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1980) (the district court retained jurisdiction over plaintiffs equitable’ claim and dismissed
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plaintiffs’ claim for monetary damages for lack of jurisdiction or to be transferred to the Court of
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Claims).
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In arguing that the Court of Claims can provide an adequate remedy for the entire action,
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defendants ignore the heart of Plaintiffs’ complaint — their request for reinstatement so they may
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serve their county again — and the Court of Claims’ limited jurisdiction. The Court of Claims
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can grant non-monetary relief, such as Plaintiffs’ request for reinstatement, only when that relief
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is “incident of and collateral to any . . . judgment.” 28 U.S.C. § 1491(a)(2). The Ninth Circuit
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has held that this language allows “the court [of claims] [to] grant injunctive relief when it is
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associated with and subordinate to a monetary claim, but it has no jurisdiction over claims where
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the monetary claim is incidental to a claim for affirmative non-monetary relief.” See Wilkins v.
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United States, 279 F.3d 782, 786 (9th Cir. 2002) (internal citations removed) (the Court of Claims
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did not have jurisdiction over non-monetary claims, including claim for reinstatement, even when
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claim for back pay was subject to Court of Claims jurisdiction.)
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As evidenced by Plaintiffs’ motion for leave and Plaintiffs’ willingness to limit their

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remedy to reinstatement, this is not an ordinary wrongful military discharge case where the

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monetary damages are at the forefront of the case.1 (See Defts’ Mot. to Transfer at 6.) The crux

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of Plaintiffs’ case is their First and Fifth Amendment constitutional challenges to DADT. (See

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Compl. ¶¶ 59-107.) These claims cannot be shoehorned into the statutory extension of the Court

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of Claims jurisdiction as “incident of and collateral to [a] judgment”, when the requested service

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credits are clearly secondary to Plaintiffs’ challenge to DADT and requested reinstatement. 28

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U.S.C. § 1491(a)(2). “It would be demeaning to justice and to respect for the non-monetary

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concerns of former officers, for this court to hold that plaintiff’s claims for invalidity of his

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conviction and discharge are necessarily masks for a subsequent claim of monetary relief. At least

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as important as back pay are a man’s career, his livelihood, his rights as a veteran, his status as a

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convicted criminal, and his reputation.” Poole, 779 F. Supp. at 1556. If the Court declines to

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permit Plaintiffs’ leave to amend and if the Court is inclined to view service credits as money

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damages, the court should, as the district court in Witt did, retain jurisdiction of Plaintiffs’

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reinstatement claims and transfer only the claims for any alleged monetary damages. See Witt,

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2010 WL 3522519, at *4 (cited on pages 4 and 5 of defendants’ Mot. to Transfer and holding that

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the district court retained jurisdiction of the claims involving wrongful discharge and

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reinstatement, and noting that the other claims could be heard in the Court of Claims).

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C.

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Defendants’ Motion To Transfer/Dismiss Is Moot As Plaintiffs Have
Filed A Motion For Leave To File An Amended Complaint.

Plaintiffs’ motion for leave to file an amended complaint requests the Court allow
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Plaintiffs to more explicitly limit their requested remedy solely to reinstatement. (See Decl. of M.
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Andrew Woodmansee in support of Pltfs.’ Mot. For Leave to Amend at Exh. 2, ECF. No. 30.)
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The proposed amended complaint eliminates the request for service credits and the promotion for
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Plaintiffs expressly reserve all rights they may have to file a separate action in the Court
of Claims to petition for credit toward their retirement for any time they would have served on
active duty but for their discharges under DADT, and Plaintiff Almy expressly reserves his right
to petition for a promotion to the rank of lieutenant colonel. If Defendants believe they have
valid defenses to such an action based on the Complaint in this case, they can assert them at the
appropriate time in the appropriate forum.

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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER ACTION TO UNITED STATES COURT OF
FEDERAL CLAIMS, OR, IN THE ALTERNATIVE TO DISMISS ACTION

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Plaintiff Almy which Defendants claim are beyond this Court’s jurisdiction and require that this

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action be transferred. (See Defts’ Mot. to Transfer at 2, ECF No. 19.) By amending their

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complaint to not seek any remedy beyond reinstatement, Plaintiffs can overcome any purported

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sovereign immunity bar. As demonstrated above, Plaintiffs do not propose this amendment

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because they think it is necessary for jurisdictional purposes, but rather for the purpose of

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removing any doubt Defendants or the Court may have regarding this Court’s jurisdiction to

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review and remedy Defendants’ illegal discharge of Plaintiffs from active duty. If the Court

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grants Plaintiffs’ motion for leave, then the amendment will render moot defendants’ Motion to

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Transfer/Dismiss.2

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If the Court denies Plaintiffs’ motion for leave to amend and the Court finds it lacks
jurisdiction based on the original pleading, Plaintiffs respectfully request that the Court make
clear in its dismissal order that Plaintiffs may amend their complaint to cure the jurisdictional
deficiency by not seeking credit toward retirement for the time Plaintiffs would have served if
they had not been discharged. See Breier v. Northern California Bowling Proprietors’ Ass’n, 316
F.2d 787, 789 (9th Cir. 1963) (if no responsive pleading has been filed, then “an order of
dismissal denying leave to amend at that stage is improper, and a motion for leave to amend
(though unnecessary) must be granted if filed”); Richardson v. United States, 336 F.2d 265, 266
(9th Cir. 1964) (plaintiff has a “right to amend” once as a matter of course after “an order
granting . . . a motion to dismiss”).

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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER ACTION TO UNITED STATES COURT OF
FEDERAL CLAIMS, OR, IN THE ALTERNATIVE TO DISMISS ACTION

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IV.
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CONCLUSION
For the reasons stated, Plaintiffs respectfully submit that defendants’ motion to transfer, or

in the alternative, dismiss should be denied. If the Court is inclined to grant Defendants’ motion,
the Court should either (1) permit Plaintiffs to amend their complaint or (2) retain jurisdiction and
proceed without delay on the merits as to Plaintiffs’ equitable claim seeking reinstatement on
active duty.

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Dated: April 14, 2011
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M. ANDREW WOODMANSEE
STEPHANIE L. FONG
KIMBERLY R. GOSLING
JESSICA ANNE ROBERTS
MORRISON & FOERSTER LLP

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JOHN M. GOODMAN
AARON D. TAX
SERVICEMEMBERS LEGAL DEFENSE
NETWORK

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By: /s/ M. Andrew Woodmansee
M. ANDREW WOODMANSEE

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Attorneys for Plaintiffs
MICHAEL ALMY, JASON KNIGHT, and
ANTHONY LOVERDE

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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER ACTION TO UNITED STATES COURT OF
FEDERAL CLAIMS, OR, IN THE ALTERNATIVE TO DISMISS ACTION

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CERTIFICATE OF SERVICE
I hereby certify that all counsel of record, who are deemed to have consented to electronic
service, are being served this 14th day of April, 2011, with a copy of this document via the
Court’s CM/ECF system.

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/s/ M. Andrew Woodmansee
M. Andrew Woodmansee

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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER ACTION TO UNITED STATES COURT OF
FEDERAL CLAIMS, OR, IN THE ALTERNATIVE TO DISMISS ACTION

sd-553277

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