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YOCUM v. UNITED STATES

July 6, 1984

MARK P. YOCUM
v.
UNITED STATES OF AMERICA, DEPARTMENT OF THE NAVY and JOHN LEHMAN, SECRETARY OF THE NAVY



The opinion of the court was delivered by: SHAPIRO

 NORMA L. SHAPIRO, J.

 INTRODUCTION

 Mark Yocum, a Naval reservist involuntarily activated, brought this action against the Government following his term of service to recover as damages wages he would have earned as a civilian had he not been forced to return to active duty. Jurisdiction is asserted under the Tucker Act, 28 U.S.C. § 1346(a)(2). Plaintiff asserts a Government breach of his Navy enlistment contract.

 Plaintiff's original complaint, filed in October, 1981, contained three Counts. Counts I and II, seeking compensatory and punitive damages for alleged violations of Navy regulations and the Fifth Amendment, were dismissed for lack of subject matter jurisdiction. No waiver from the doctrine of sovereign immunity was found to apply. The suit filed against the Secretary of the Navy in his official capacity was also barred because it was really an action against the sovereign. Count III, brought under 42 U.S.C. § 1983, was dismissed for failure to state a claim because that statute applies to persons acting under the color of state rather than federal law. Plaintiff's motion for summary judgment was denied. However, plaintiff was given leave to file an amended complaint if a good faith claim for breach of contract could be stated under the Tucker Act. Plaintiff subsequently did file an amended complaint that reduced the amount claimed in damages to less than $10,000. Defendants' motion to dismiss the amended complaint was denied because the amended complaint asserted that there was a contract between plaintiff and defendants that had been breached by defendants. Defendants subsequently filed a motion for summary judgment; after hearing oral argument, the court denied that motion in order to allow plaintiff full opportunity to present the alleged contract and breach at trial. Following a bench trial on May 23, 1984, the court finds in favor of defendants.

 FINDINGS OF FACT

 1. On December 19, 1975, plaintiff enlisted in the United States Naval Reserve for a period of six (6) years.

 2. At that time, he executed a document entitled "Enlistment or Reenlistment Agreement -- Armed Forces of the United States" (the "Agreement").

 3. Section III, Paragraph 11 of the Agreement provides: "I will receive the pay and allowances and other benefits as provided by law and regulation."

 4. Section III, Paragraph 12 of the Agreement further provides: "With regard to any other benefits, I understand that only those promises, if any, recorded herein or (Annexes) A, B, C attached hereto will be honored and that any other promises not contained therein made by any person are not effective and will not be honored." [Annexes A, B, C are not relevant here.]

 5. Plaintiff agreed to serve a minimum of four (4) months on active duty.

 6. Plaintiff agreed to serve the balance of enlistment term in the Ready Reserve.

 7. Under Ready Reserve status, plaintiff was obligated to attend minimum of forty-eight (48) drills per year and serve on active duty for training at least fourteen (14) days per year; or serve on active duty for no more than thirty (30) days per year.

 8. Section IV, Paragraph 14(b)(3) of the Agreement provides: "As a member of the Ready Reserve, if I am not assigned to, or participating satisfactorily in, a unit of the Ready Reserve, have not fulfilled my statutory reserve obligation; and have not served on active duty for a total of 24 months; I may be ordered to active duty without my consent until my total service on active duty equals 24 months. If my enlistment or other period of military service expires before I have served the required period, it may be extended until I have completed the required active service[.]"

 10. Plaintiff served on active duty from January to July, 1976.

 11. On July 11, 1976, plaintiff executed a statement of understanding (the "Statement") at his reserve unit in McKeesport, Pennsylvania.

 12. The Statement acknowledged that unexcused absences of scheduled drills could not be made up and subjected the reservist to involuntary activation.

 13. By March, 1978, plaintiff's level of participation in the mandatory drills was unsatisfactory.

 14. Plaintiff was told this by his direct superior, R. W. McLellon, Officer-in-Charge, who recommended his placement on probationary drilling status.

 15. This recommendation was approved by J. W. Pfleger, Commander, Naval Reserve Readiness Command, Region Five.

 16. By June, 1978, plaintiff's participation was again unsatisfactory.

 17. This time McLellon nominated plaintiff to active duty.

 18. This nomination was endorsed by Commanding Officer J. R. Durmick.

 19. In September, 1978, upon learning of plaintiff's participation in a drug and alcohol rehabilitation program, Pfleger refused to activate plaintiff for duty but ordered continuation of his probationary status instead.

 20. Plaintiff's attendance record remained unsatisfactory.

 21. On March 4, 1979, McLellon again nominated plaintiff to active duty.

 22. McLellon's nomination letter was forwarded, the same day, to Pfleger by Commanding Officer R. E. Rogers, ...


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