TERRY v. USA

Filing 88

Order vacating [No. 87] and directing the Clerk to enter judgment. The Clerk is directed to enter judgment.Signed by Senior Judge Eric G. Bruggink. (jpk1) Service on parties made.

In the United States Court of Federal Claims
Nos. 17-1100C & 21-1107C (consolidated)
(Filed: May 25, 2021)
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EDGAR A. TERRY,
Plaintiff,
v.
THE UNITED STATES,
Defendant.
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ORDER
In order to prevent confusion regarding the judgment to be entered
by our prior order (ECF No. 87), that order is hereby vacated. The
following is substituted in its place.
The amended complaint, filed in 2018, alleged two counts: failure to
promote and wrongful discharge. After filing of the administrative record
and cross-motions for judgment on it, we held for defendant on the issue of
wrongful discharge but remanded the issue of Mr. Terry’s promotion back
to the Army. 144 Fed. Cl. 150 (2019). Ultimately, the Secretary of the
Army ordered that a Special Selection Board (“SSB”) be convened to
correct plaintiff’s records.
On April 15, 2021, defendant filed a status report and attached a
notice from Mr. Terry’s SSB, which indicate that plaintiff’s record was
corrected and that he was selected for promotion. Defendant thus asked the
court to enter judgment as the action was now moot. Plaintiff responded by
moving for a limited stay to “finalize the coordination for his promotion”
with his current National Guard unit. (ECF No. 81). We granted that
motion. Plaintiff filed a status report on May 15, 2021, indicating that Mr.
Terry had established contact with the Missouri Army National Guard
Headquarters but that he had been given no timeline for the completion of a
promotion by that unit. That same day, plaintiff’s counsel moved to

withdraw his representation of Mr. Terry. Plaintiff also asked for an
additional 14-day stay to allow him to retain new counsel.
Because the only claim that remains pending has been mooted by the
Army’s decision to promote Mr. Terry, there is no reason to delay the entry
of judgment further. The Missouri Army National Guard’s subsequent
handling of plaintiff’s promotion by the Army is not before the court.
Accordingly, the following is ordered:
1. The Clerk of Court is directed to dismiss Count 1 of the amended
complaint as moot pursuant to RCFC 12(b)(1) and to enter judgment
accordingly on that claim.
2. Having denied plaintiff’s Rule 52.1 motion for judgment on the
administrative record and granted the government’s motion on the
issue, the Clerk of Court is directed to enter judgment for defendant
on Count 2.
3. The Clerk of Court is directed to enter judgment for defendant in
the consolidated case (No. 21-1107C).
4. Plaintiff’s motion to withdraw as counsel (ECF No. 86) is denied
as moot.
Eric G. Bruggink
ERIC G. BRUGGINK
Senior Judge