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Casarino v. United States

decided: September 14, 1970.


Waterman, Friendly and Hays, Circuit Judges.

Author: Waterman

WATERMAN, Circuit Judge:

Appellant Casarino, a physician, is presently serving on active duty in Vietnam as a general medical officer (GMO) in the Air Force Medical Corps. On June 18, 1969, shortly before he was initially scheduled to report to active duty, Dr. Casarino commenced an action in the United States District Court for the Southern District of New York and moved for a preliminary injunction to restrain defendants from ordering him to duty as a general medical officer. It was and is appellant's position that because he enlisted to become a reserve medical officer through recruitment in the Armed Forces Physicians' Appointment and Residency Consideration Program (commonly called the Berry Plan), he cannot lawfully be called to active duty as a general medical officer but may only be assigned to a billet involving his specialty, psychiatry. Plaintiff's motion for a preliminary injunction was denied for lack of subject matter jurisdiction, and, in the alternative, on the ground that it was unlikely that plaintiff would prevail on the merits of his action. We affirmed this order on July 23, 1969, and directed that the action be promptly heard on its merits in the district court. Thereafter Dr. Casarino reported for active duty. Plaintiff moved for summary judgment. Defendants moved to dismiss the complaint for lack of subject matter, jurisdiction or, alternatively, for summary judgment. On December 7, 1969 the defendants' motion to dismiss the complaint for lack of subject matter jurisdiction was granted. Plaintiff appealed. We affirm the dismissal of the complaint.

In August 1967, Dr. Casarino applied for enrollment in the Berry Plan by completing a form which he had removed from a brochure entitled "Information Bulletin: Armed Forces Physicians' Appointment and Residency Consideration Program (Berry Plan -- 1965)." The Bulletin explained that physicians liable for military service may "volunteer for a Reserve commission in one of the Military Services and may be brought to duty at a mutually acceptable time," and from those volunteers enrolled in the program the "Army, Navy, and Air Force may obtain * * * the required number of general duty medical officers and specialists." The Bulletin further stated that "to fill the Services' projected requirements for specialists, the Department of Defense will sponsor the deferment of a selected number of interns who will be permitted to complete residency training before being called to active duty." Dr. Casarino, pursuant to his request, was informed by letter dated August 20, 1965 that he had been selected for residency training deferment in pediatrics, provided he applied for and accepted a reserve commission in the Air Force. He complied and, on January 15, 1966, he was commissioned as a First Lieutenant in the Air Force. His residency in pediatrics, a two year training program, began in 1966. According to the Berry Plan Bulletin, "every effort" would be made to continue the deferment until completion of the required residency period. Thus Dr. Casarino believed he would not be called for active duty earlier than the summer of 1968.

In early 1967, Dr. Casarino decided to change his specialty to psychiatry, a three year training program. He notified the Air Force of his desire by a letter dated January 28, 1967. In this letter he requested an extension of his deferment "optimally" for four years, until the summer of 1972, so that he could complete eligibility requirements in the subspecialty of child psychiatry and "alternatively" an extension of but one year, until the summer of 1969, so that he could complete two years of training in general psychiatry. Although a three year residency period in general psychiatry is required before a doctor may receive certification by the appropriate American Specialty Board, the Air Force considers that doctors who have completed a two year residency period are qualified to serve as psychiatrists in the Air Force. By letter dated February 3, 1967, Dr. Casarino was advised that his alternative request for "an additional year of training with a completion date of July 1969" had been approved.

By letter dated September 3, 1968, appellant was notified that

Our records indicate that the United States Air Force will not meet the required staffing requirements in your specialty at the time you are scheduled to complete residency training. Therefore, you are being programmed for active duty in July-September 1969.

In late March 1969 appellant was notified to report on July 6, 1969 to the Medical Service School at Sheppard Air Force Base, Texas, for three weeks of basic orientation, and that his ultimate duty assignment was to be with the 3rd U.S. Air Force Dispensary, Bien Hoa Air Base, Vietnam, as a general medical officer. Upon receiving and verifying this news, Dr. Casarino wrote Lt. Colonel Kenneth W. Peters of the Medical Career Division, Office of the Assistant Surgeon General, in Texas, requesting to know why he was not assigned to a psychiatry specialty. He received the following reply:

Since the Air Force will have an adequate number of fully trained psychiatrists to fill all requirements during the summer 1969, it will be necessary to assign you against an urgent requirement for a general medical officer.

Colonel Peters expressed regret and assured Dr. Casarino that "an effort" would be made to assign him to a billet within his specialized field of psychiatry during his second year of active duty. Subsequent efforts administratively to change his assignment to one in psychiatry failed.

While we are not without sympathy that Dr. Casarino did not secure an assignment in his chosen specialty field in medicine, the facts of this case do not rise to such a level that we can grant him the relief he seeks.

Appellant initially claims that the district court had jurisdiction to review his assignment by the Air Force under the Tucker Act, 28 U.S.C. § 1346(a) (2), because the Air Force was contractually obliged, pursuant to the terms of the Berry Plan, to assign him to his specialty. Section 1346(a) (2), however, does not permit suits in which the only relief sought is specific performance. United States v. Jones, 131 U.S. 1, 9 S. Ct. 669, 33 L. Ed. 90 (1889); Wells v. United States, 280 F.2d 275, 277 (9 Cir. 1960); Blanc v. United States, 244 F.2d 708 (2 Cir.), cert. denied, 355 U.S. 874, 78 S. Ct. 126, 2 L. Ed. 2d 79 (1957); Clay v. United States, 93 U.S.App.D.C. 119, 210 F.2d 686 (1953), cert. denied, 347 U.S. 927, 74 S. Ct. 530, 98 L. Ed. 1080 (1954); R.E.D.M. Corporation v. Lo Secco, 291 F. Supp. 53, 58 (SDNY 1968), aff'd per curiam, 412 F.2d 303 (2 Cir. 1969); cf. Dugan v. Rank, 372 U.S. 609, 624, 83 S. Ct. 999, 10 L. Ed. 2d 15 (1963).

Appellant next falls back on the district court's power "to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. However, inasmuch as a court cannot, pursuant to its mandamus jurisdiction, "direct the exercise of judgment or discretion in a particular way," (emphasis added), Wilbur v. United States, 281 U.S. 206, 218, 50 S. Ct. 320, 324, 74 L. Ed. 809 (1930), it has little control over the propriety of a decision that has been made. We have recognized, however, that

United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 (2 Cir. 1968) (Friendly, J.), cert. denied, 394 U.S. 929, 89 S. Ct. 1195, 22 L. Ed. 2d 460 (1969). We conclude that the Air Force official responsible for assigning appellant did not owe appellant a duty to place him in a billet in his specialty, nor did the official's judgment ...

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