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November 4, 1993

RANDY DUFFY, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.

The opinion of the court was delivered by: MILTON I. SHADUR

 In this action Randy Duffy ("Duffy") has launched his second effort to challenge the propriety of his resignation and discharge from the United States Air Force Reserves ("Reserves"). In Duffy's first lawsuit (Case No. 87 C 10826 in this District Court), this Court's then colleague Honorable Prentice Marshall held that the United States had not established as a matter of law that Duffy had resigned voluntarily, but Judge Marshall nonetheless dismissed all ten counts in Duffy's then-existing complaint on various differing grounds. One of those ten claims, the one that was set forth in Duffy's first count, was dismissed because Duffy had not exhausted his available intramilitary administrative remedies.

 Judge Marshall's judgment of total dismissal was affirmed by our Court of Appeals something over a year ago (966 F.2d 307 (7th Cir. 1992)), albeit "by a slightly different route" than that traveled by Judge Marshall ( id. at 314). In connection with the first count of Duffy's original complaint, though, the Court of Appeals concurred with Judge Marshall's determination that Duffy must first exhaust his administrative remedies before bringing that claim into court. En route to that conclusion, it quoted (966 F.2d at 311) the Supreme Court's decision in Parisi v. Davidson, 405 U.S. 34, 37, 31 L. Ed. 2d 17, 92 S. Ct. 815 (1972):

The basic purpose of the exhaustion doctrine is to allow an administrative agency to perform functions within its special competence--to make a factual record, to apply its expertise, and to correct its own errors so as to moot judicial controversies.

 Duffy then applied for administrative relief before the Air Force Board for Correction of Military Records ("Board"). On October 21, 1992 the Board ruled against Duffy, primarily on the ground that he had voluntarily sought a discharge in lieu of court-martial. Although Duffy's current lawsuit asserts a number of grounds for invoking judicial relief, this Court has previously determined in an oral ruling that the only potential for subject matter jurisdiction here is judicial review of the Board's decision under the Administrative Procedure Act ("APA"), 5 U.S.C. ยง 702.

 There is a reason for inserting the qualifier "potential" into the last sentence: If Duffy's resignation were indeed voluntary, this Court would then lack subject matter jurisdiction over his action for reinstatement or backpay ( Sammt v. United States, 780 F.2d 31, 32-33 (Fed. Cir. 1985)). Accordingly this Court has posed the question to the parties whether Judge Marshall's expression of views on the voluntariness issue (an issue not argued by the United States before our Court of Appeals) was law of the case.

 At this point the litigants have briefed the law-of-the-case question. Fully four reasons negate the application of that doctrine here:

1. Judge Marshall really did not hold that Duffy's resignation was not voluntary. Although he did rule (dealing, it will be remembered, with a motion to dismiss Duffy's complaint) that the United States had not established a voluntary resignation as a matter of law, all that Judge Marshall said--given the absence of proof at that threshold stage--was this (slip op. at 22) (emphasis added):
Duffy alleges, and defense do not yet dispute, that [Reserves Major Reino] Lanto [the Staff Judge Advocate who had been involved in handling Duffy's situation] imposed the terms of Duffy's resignation.
2. In any event, law of the case does not come into play because this Court's subject matter jurisdiction is now at issue. As Christianson v. Colt Indus. Operating Corp., 798 F.2d 1051, 1056 (7th Cir. 1986) (numerous citations omitted) has said:
Indeed, there is authority for the proposition that the issue of subject matter jurisdiction is not constrained by the law of the case principles. Even the Fifth Circuit, which has developed a rigorous law of the case doctrine, routinely allows for the reconsideration of jurisdictional rulings.
And where the issue has been addressed not by a superior court (such as the Court of Appeals) but by a court of coordinate jurisdiction, the non-binding nature of that court's rulings really follows a fortiori (id.)
3. Quite apart from those reasons, the very nature of Judge Marshall's decision did not bring law of the case into play. As Trustees of Ind. Univ. v. Aetna Casualty & Sur. Co., 920 F.2d 429, 435 (7th Cir. 1990) put it:
We could find no case . . . in which the law of the case has been applied to bind a district court to a factual statement made by the court in the course of denying a summary judgment motion, when subsequent proceedings following directly on that denial bring the factual statement into doubt. And for good reason: so long as the factual issue has not been brought to judgment, ...

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