Piotrowski v. United States ( 2014 )

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(Filed: December 30. 2014)
DEC 30 2014
NOT FOR PUBLICATION U.S. COURT OF
FEDERAL CLAIMS
)
JOSEPH FRANK PIOTROWSKI, ) RCFC l2(b)(l); SubjectMatter
) Jurisdiction; Military Pay Act (37 U.S.C.
Plaintiff, ) g 20a); 10 U.S.C. $ 3911; Statute of
) Limitations (28 U.S.C. $ 2501); 28 U.S.C.
) $ 1491 (a)(2); Administrative Procedures
) Act; Fifth Amendment; Eighth
THE T]NITED STATES, ) Amendment; Promissory Estoppel;
) Fraudulent Misrepresentation; Collateral
Defendant. ) Attack on Court-Martial Proceedings
Joseph Frank Piotrowski, Cross City, FL, pro se.
William P. Ravel, Trial Attorney, with whom were Stuart F. Delery, Assistant Attomey
General, Robert E. Kirschman. Jr., Director, and Steven J. Gillingham, Assistant
Director, Commercial Litigation Branch, Civil Division, Department of Justice,
Washington, DC, for defendant. Maj. Nicole L. Fish, Litigation Attomey, Military
Personnel Branch, United States Army Litigation Division, of counsel.
ORDER and OPINION
CAMPBELL-SMITH, Chief Judge
Pro se plaintiff Joseph Frank Piotrowski (plaintiff or Mr. Piotrowski) filed this
military pay action against the United States Army (Army or defendant).' Plaintiff
' The caption of plaintiff s Complaint also lists as additional defendants "John
McHugh, Secretary of the Army, et. al." Compl., ECF No. 1, at l; see also id. fl 12
(attempting to sue the Secretary McHugh "in his official capacity"). Claims for relief
against any party other than the United States, including officers ofthe United States
government, "must be ignored as beyond the jurisdiction of the court." United States v.
Sherwood, 3 I 2 U.S. 584, 588 (194 l); see Brown v. United States, 1 05 F.3d 621, 624
(Fed. Cir. 1997) ("The Tucker Act grants the Court ofFederal Claims jurisdiction over
suits against the United States, not against individual federal officials."). Thus, to the
extent that plaintiff is alleging claims against the Secretary of the Army in his individual
asserts several claims arising out of his twenty-four years of service in the Army and a
2001 court-martial conviction resulting in plaintiff s imprisonment, forfeiture of pay, and
dismissal from service. Plaintiff argues, inter alia, that the Army acted contrary to law by
not approving his request to retire by December l, 2000-prior to the events leading to
his court-martial conviction. Plaintiff seeks Dast and future retirement oav as well as
other relief.
Before the court are the Complaint,' ECF No. l, attached to which are plaintiff s
exhibits3 (Pl.'s Ex.), ECF Nos. l-1 through 1-3, filed Seprember 30,2}|3;defendant's
Motion to Dismiss or, in the Altemative, Motion for Judgment on the Administrative
Record (Def.'s Mot.), ECF No. 12, filed February 11, 2014, and its corrected appendix
(Def.'s App.)," ECF No. 15-1, filed February 27,2014; the Administrative Record (AR),
capacity, such claims must be, and are, DISMISSED for lack ofjurisdiction.
2 Plaintiff filed a motion for leave to amend his Complaint on May 27,2014. ECF
No. 24. The court denied plaintiff s motion, finding that "Mr. Piotrowski's proposed
amendments [were] either unnecessary or futile." Order, July 3,2014, ECF No. 26, at3.
Any attempt by plaintiff to renew his motion to amend the complaint in subsequent
briefing is also DENIED. See Pl.'s Sur-Reply, ECF No. 29, at 1 4 (arguing that,,plaintiff
should be permitted to amend the complaint to bring it into the necessary language where
the court could exercise its subj ect-matter jurisdiction over lost pay"); id. at25 (arguing
that the court "should exercise its discretion to permit the plaintiffto [a]mend the
Complaint").
3 When citing to the exhibits attached to the Complaint, the court cites to the page
number(s) generated by the court's case Management/Electronic case Files system.
a Defendant's corrected appendix includes excerpts from several army regulations,
including two versions of Army Regulation 600-8-24, which governs officer Transfers
and Discharges. See Def.'s App., ECF No. 15-1, at 46-A30 (Army Reg. 600-g-24
(1995)), ,{3 1-455 (Army Reg. 600-8-24 (2006). plaintiff contends that considerarion of
either the I 995 version or the 2006 version of Army Regulation 600-g-24 would be
"inappropriate" because neither was in effect in August of 2000, when plaintiff submitted
his retirement request. see Pl.'s Resp., ECF No. 20, at 3, 20. plaintiff is inconect.
As defendant correctly observes, see Def.,s Reply, ECF No. 27, at I I n.7, the
1995 version of Army Regulation 600-8-24 was in effect in August 2000, when plaintiff
submitted his retirement request, and the 2006 version of Army Regulation 600--g-24 was
in effect both in June 2007, when defendant argues plaintiffwas diicharged, and in April
2008, when plaintiff alleges he was officially released from active duty.
Defendant's corrected appendix also includes an excerpt from Army Regulation
ECF No. 13, filed under seal February ll,2014: plaintiff s Response (Pl.'s Resp.), ECF
No. 20, filed May 2,2014; defendant's Reply (Def.'s Reply), ECF No. 27, filed July 17,
2014; plaintiff s Sur-Reply (Pl.'s Sur-Reply), ECF No. 29, filed August 19, 2014; and
defendant's Sur-Surreply (Def.'s Sur-Reply), ECF No. 30, filed September 2,2014.
For the reasons stated below. defendant's Motion to Dismiss is GRANTED.
I. Background
Plaintiff began serving in the Army on February 22, 1977. Compl. fl 13. By early
2000, plaintiffhad served seven of his approximately twenty-four years of service as a
commissioned reserve officer in the rank of Captain and was stationed at the MacDill Air
Force Base in Tampa, Florida. See id. flfl l3-14; Pl.'s Resp. 3-4.
On August 5,2000, plaintiff was charged with Driving Under the Influence (DUI)
while off-base. Compl. fl 15. Two days later, plaintiffs Unit Commander, Lt. Col.
Robert Bethea, Jr. (LTC Bethea), initiated an inquiry regarding plaintiff s DUI and an
alleged misuse of a govemment-issued credit card. See id. !l 17. As a result, a,.flag" was
placed in plaintiff s personnel file. See Pl.'s Sur-Reply 18; pl.'s Ex. C at 6. Army
regulations define a "flag" as "[a]n abbreviated term used to describe the initiation or
removal ofa suspension of favorable personnel actions." Army Reg. 600-8-2, Glossary
(1987). "Flags will be submitted when an unfavorable action or investigation (formal or
informal) is started against a soldier by military or civilian authorities.,' Id. tT l-11.
On August 10, 2000, the investigating official concluded that plaintiffhad
engaged in misconduct and recommended that action be taken pursuant to the Uniform
code of Military Justice (ucMJ). compl. fl l8; Pt.'s Ex. c at 3 (Investigative Findings).
The Army issued plaintiff a letter of reprimand on August 24, 2000. Compl. l9; pl.'s
fl
Ex. C at 4 (Mem. of Reprimand).
Also on August 10, 2000, plaintiff requested voluntary retirement at his rank of
O3-E (Captain); plaintiff specifically asked to.,be released from active duty and
assignment on 30 November 2000 and [to be] placed on the retired list on I December
2000." Id.flfl la l5;Pl.'sEx. Aat2-3 (voluntaryRetirementMem.). plaintiffcontends
that the timely out-processing for his retirement was inhibited by the unlawful presence
of a flag in his personnel file. See Pl.'s Sur-Reply l8-19; cf. Army Reg. 600-g-2
f I - l4.h (providing that the presence of a flag prohibits retirement); Def.,s Reply 12
(conceding that a flag inhibits retirement but arguing that plaintiff s retiremeni was
600-8-2, which governs suspension ofFavorable personnel Actions (Flags). See Def.,s
App. 41-46 (Army Reg. 600-8-2 (1987). The court appropriately cites to this version
of the regulation because it was in effect in August and November of 2000, when the
Army placed flags in plaintiff s personnel file.
denied for reasons independent ofthe flag). Plaintiff contends that the Army should have
removed the flag from his personnel file on August 24,2000-the date on which the
Army issued plaintiff the letter of reprimand. See Pl.'s Sur-Reply 18-19,23;' cf. Army
Reg. 600-8-2 fl l-12(6) (indicating that a flag should be removed from a service
member's personnel file upon the signing of a letter of reprimand). However, the Army
did not remove the flag from plaintiff s personnel file until October 30, 2000. Pl.'s Sur-
Reply 18; see Compl. fl1[20-23 (explaining the procedures taken to remove the flag from
plaintiff s personnel file).
On November 3, 2000, plaintiff met twice with LTC Bethea regarding plaintifls
retirement request. Compl. fl 26. Following these meetings, LTC Bethea initiated a
second flag against plaintiff, the basis for which the parties dispute. See Def.'s Mot. 4
n.3 (claiming the second flag was a result of plaintiff s failure "to take the requisite steps
toward retirement"); Pl.'s Resp. 4-7 (claiming the second flag was a result of plaintiff s
failure to agree "that a disciplinary action under UCMJ should hinge on whether . . . he
retired by [December I, 2000]"); Compl. flfl 27,28 (similar).
Also on November 3,2000, plaintiff s retirement request was denied by personnel
Command (PERSCOM). AR 159. Because plaintiff only had seven years of
commissioned service, he was not eligible to retire as a captain. Id. PERSCOM advised
that if plaintiff wished to retire with less than ten years of commissioned service, he must
revert to enlisted status and resubmit a voluntary retirement application with the correct
retirement grade. Id.
That same day, plaintiff submitted a Personnel Action form, in which he asked to
revert to enlisted status and to be retired at the rank of Sergeant first class as of
December l, 2000, consistent with the advice of pERSCOM. pl.'s Ex. c at 9 (personnel
Action Form); see Compl. fl 29; cf. Def.'s Mot.23 n.16 (claiming that a ,,personnel
Action form is not the appropriate method of requesting retirement"). plaintiff s second
retirement request was denied four days later, on November 7 ,2000. See Compl. 29;
fl
Pl.'s Ex. C at 9 (Personnel Action Form).
In early 2001, the Army initiated a court-martial action against plaintiff related to
his DUI. see compl. fl 30; Def.'s Mot. 4; AR 80 (General court-Martial order (GCMo)).
while this action was pending, plaintiff was charged on February I l, 2001 wirh a second
DUI. see Def''s Mot. 4; AR 80 (GcMo). Two months later, on April 1g,2001, plaintiff
was involved in a third, and fatal, DUI. See Compl. fl 30; AR 80 (GCMO).
on June 7,2002, plaintiff was convicted by general court-martial of, inter alia,
involuntary manslaughter and three instances of drunk driving. AR g2 (GCMO).
Plaintiff was sentenced "[t]o be reprimanded, to forfeit all pay and allowances, io be
confined for l3 years and six months and to be dismissed from the service.', Id. pursuant
to a plea agreement, the convening authority suspended all prescribed confinement in
excess of twelve years for a period of eight years. Id. at 80, 83. The convening authority
also approved the execution of plaintiffs sentence with the exception of his dismissal
from service, which was stayed pending the completion of the appellate process. Id. at
83.
On January 31,2006, the United States Army Court of Criminal Appeals
substantially affirmed plaintiff s conviction and sentence.r See AR 84-89. The United
States Court of Appeals for the Armed Forces denied plaintiff s petition for review on
February 8,2007. AI.247. On April 10,2007, the Assistant Secretary of the Army for
Manpower and Reserve Affairs approved the decision of the United States Army Court of
Criminal Appeals, AR244; see also AR248, and on May 24,2007,the Chief of Staffof
the Army ordered that plaintiff be dismissed from the Army at midnight on June 7 ,2007 ,
AR 245.
In the interim, back in May 2002, while serving his military sentence, plaintiff was
indicted by the state of Florida on the charges of DUI manslaughter and vehicular
homicide. See AR 78-79. Plaintiff subsequently was found guilty and was sentenced to
two consecutive fifteen-year terms, to run concurrently with his military sentence. Id.;
Compl. !l 31. Plaintiff s military confinement ended in July 2008, but he is currently
serving the remainder of his state sentence at Cross City Correctional Institution in
Florida. Def.'s Mot. 6; see Pl.'s Resp.2l (listing Cross City Correctional Institution as
plaintiff s address).
On March 31,2011, plaintiff filed an application wirh rhe Army Board for
correction of Military Records (the Board) requesting certain corrections be made to his
Certificate of Release or Discharge from Active Duty (DD Form 214), see AR 2l-65,
including that his Dismissal be changed to Retirement and his Dishonorable
characterization of service be upgraded to Honorable, see AR 3l-32. OnJanuary 18,
2012, the Board granted partial relief by correcting three items on his DD Form 214: the
length of his total inactive service, the length of his foreign service, and his military
education training. see AR 20. The Board denied the remaining relief requested by
plaintiff, including all relief pertaining to retirement and upgrading his discharge to
honorable. Id.
Plaintiff filed the instant action on September 30,2013. plaintiff makes the
following claims in his Complaint: (l) that the Army deprived him of his right to
retirement pay and benefits without due process of law; (2) that the Army violated the
Administrative Procedures Act (APA) by failing to follow Army regulations that permit
service members with more than twenty years of service to retire upon request; (3) that
' The United States Army court of criminal Appeals reviews all court-martial cases
"in which the sentence, as approved, extends to . . . dismissal ofa commissioned officer
. . . or confinement for one year or more." 10 U.S.C. $ 866(bX1).
the Army breached a promise and intentionally misled plaintiff into believing that he was
eligible to retire as a commissioned officer after eight years of service; (4) that the Army
violated due process of law and the APA by failing to correct his military records; and (5)
that the Army violated the Double Jeopardy Clause of the Fifth Amendment by
convicting plaintiff for the DUI and "disregarding the prosecution by the State of Florida
for the same offense." Compl. tffl 41-45.
Plaintiff seeks retirement pay from December 1, 2000 through the present, Compl.
$t 6, 46, future retirement pay, id. Jf 47, reimbursement of certain medical care costs paid
for dependents, see id. Jlfl 6, 38, and correction of his military records "to reflect
corrections to his DD-214 [form, concerning] awards, type ofdischarge, and rank at
retirement," id. 11 48."
Defendant moves to dismiss plaintiff s Complaint for lack ofjurisdiction under
Rule 12(bXl), arguing that plaintiff has failed to allege any money-mandating sources of
law and failed to file within the court's statute of limitations. Def.'s Mot. 9-10. In the
alternative, defendant moves to dismiss plaintiff s complaint for failure to state a claim
upon which reliefcan be granted under Rule 12(bX6), arguing that plaintiffhas not
shown that he is entitled to receive retirement pay as a matter of law. Id. at l, 18. In the
further alternative, defendant moves for judgment on the administrative record under
Rule 52.1(l)(c), arguing that the Board's decision was in accordance with the law and
was not arbitrary, capricious, or an abuse ofdiscretion. Id. at l, 19.
Because the court finds that its lacks jurisdiction over any of plaintiff s claims,
6 Plaintiff also requests veterans' benefits. Cornpl. tf,!f 6,47. However, it is well-
established that "[t]his court does not have jurisdiction to award veterans' benefits,"
Ferreiro v. United States, 72 F ed. Cl. l, 6 (2006) (citing 38 U.S.C. g 5 1 l), aff d, 501 F.3d
1349 (Fed. cir. 2007); nor can it review veteran benefit determinations of the Department
of Veterans Affairs (VA), Collins v. United States,47 Fed. Ct. 196, 198 (2000) (,,The
court of Appeals for veterans claims . . . has exclusive jurisdiction to review disability
decisionsof ...theDepartmentofVeteransAffairs.,,(citing38U.S.C. $ 7252)),aff d,
243 F .3d 561 (Fed. Cir. 2000) (unpublished); see also Addington v. United States, 94
Fed. cl. 779, 782 (2010) (stating that the court is "prohibited from reviewing vA benefit
determinations" further to title 38 of the united States code). Accordingly, the court
cannot consider plaintiff s claim for veterans' benefits.
Additionally, plaintiff "demands a trial by jury." Compl. fl 7. plaintiff has no
right to a jury trial in this court. Ramos v. United States,ll2Fed. cl.79, g2 n.3 (2013);
accord Order, Iuly 3,2014, ECF No. 26, at 2 (observing that that,.[t]his court does not
conduct trials by jury, so plaintiff s request for ajury trial must necessarily be rejected',
(citing Lehman v. Nakshian,453 U.S. 156, 160 (1981).
pursuant to Rule 12(b)( 1), the court does not reach defendant's alternative motions.
II. Legal Standards
The Tucker Act establishes and limits the jurisdiction of the Court of Federal
Claims. See 28 U.S.C. $ l49l (2012). The Tucker Act affords this court jurisdiction
over "any claim against the United States founded either upon the Constitution, or any
Act of Congress or any regulation ofan executive department, or upon any express or
implied contract with the United States, or for liquidated or unliquidated damages in
cases not sounding in tort."/ Id. $ 1a91(a)(1). Although the Tucker Act waives the
sovereign immunity necessary for a plaintiff to sue the United States for money damages,
united states v. Mitchell, 463 u.s. 206,212 (1983), it does not confer any substantive
rights upon a plaintiff, United States v. Testan, 424 U.S. 392, 398 ( I 976). Therefore, a
plaintiff must identifu an independent source of substantive law that creates a right to
money damages in order for the case to proceed. Fisher v. United States,402F.3d 1167,
I 172 (Fed. Cir. 2005) (en banc in relevant part). This independent source of substantive
law must constitute a "money-mandating constitutional provision, statute or regulation
that has been violated, or an express or implied contract with the United States.,'
Loveladies Harbor. Inc. v. United States,27 F.3d 1545, 1554 (Fed. Cir. 1994).
? Plaintiff asserts that Article III, Section II, Clause I of the U.S. Constitution and
2 8 U. S.C. $ 133 I serve as additional or alternative bases for this court's jurisdiction over
his claims. Compl. !l 8. Plaintiff is incorrect as to both assertions.
"'[T]he Court of Federal Claims is an Article I trial court of limited jurisdiction
that was created by congress'; it is not an [A]rticle III court." sharpe v. united states,
112 Fed. Cl, 468, 475 (2013) (quoting Kanemoto v. Reno, 41 F.3d 641,644 (Fed. Cir.
1994)). Accordingly, this court's jurisdiction "does not depend on the .arising under,
clause of Article III," or federal question jurisdiction, but rather "'on a separate clause in
Anicle III that authorizes jurisdiction over all controversies to which the United States is
a party' and on the Tucker Act." Id. at475-76 (quoting Jan,s Helicopter Serv.. Inc. v.
Fed. Aviation Admin., 525 F.3d 1299,1305-06 (Fed. Cir. 2008)).
Section 1331 of Title 28 govems federal question jurisdiction ofthe federal district
courts. The statute sets forth the "original jurisdiction" of the district courts in "all civil
actions arising under the constitution, laws or treaties of the United states." 2g u.s.c.
$ 133 I . However, the court of Federal claims is not a district court and, therefore, does
not possess jurisdiction over claims arising under 2 8 u. s.c. $ 133 1 . See Faulknerv.
united states,43 Fed. cl. 54, 55 (Fed. cl. 1999) ("The courr ofFederal claims does not
have f'ederal question jurisdiction under 28 u. s.c. $ l3 3 I . " (citing, inter alia, Crocker v.
United States, 125 F.3d 1475,1476 (Fed. Cir. 1997))).
A substantive law affords Tucker Actjurisdiction only if it "can fairly be
interpreted as mandating compensation by the Federal Govemment for the damage
sustained." Mitchell, 463 U.S. at 217. Thus, Tucker Act jurisdiction exists so long as
there is a "fair inference" that the substantive law mandates the payment of money.
United States v. White Mountain Apache Tribe, 537 U.S. 465,473 (2003). The Federal
Circuit has "acknowledged that the jurisdictional inquiry and merits inquiry may blend
together under the Tucker Act." Doe v. United States, 463 F.3d 1314, 1324 (Fed. Cir.
2006) (citing Fisher, 402 F.3d at 1173). In Fisher, the Federal Circuit explained that if
the court concludes the substantive law is money mandating, "the court shall declare that
it has jurisdiction over the cause, and shall then proceed with the case in the normal
course." Fisher, 402 F.3d at 1173. And, if the court determines that it has jurisdiction
over the cause, "the consequence ofa ruling by the court on the merits, that plaintiff s
case does not fit within the scope ofthe source, is simply this: plaintiff loses on the
merits for failing to state a claim on which relief can be granted," ld. at1175-76.
"Subject-matter jurisdiction may be challenged at any time by the parties or by the
court sua sponte." Folden v. United States ,379 F .3d 1344, 1354 (2004). When
considering a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule
l2(bX1), the court accepts as true the undisputed facts in the Complaint and draws all
reasonable inferences in favor ofthe plaintiff. Trusted Integration. Inc. v. United States,
659 F.3d 1159, 1163 (Fed. Cir. 2011).
The plaintiff bears the burden of establishing the court's jurisdiction by a
preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv. , 846 F .2d
746,748 (Fed.Cir. 1988). Althoughcomplaintsfiledbyproseplaintiffsareheld"toless
stringent standards than formal pleadings drafted by lawyers," Haines v. Kemer,404 U.S.
519,520(1972)@er curiam); Vaizburdv.UnitedStates,384F.3d l27g, l2B5 n.8(Fed.
cir.2004), pro se plaintiffs must still meet jurisdictional requirements, Bemard v. United
Srates, 59 Fed. Cl. 497,499, affd, 98 F. App'x 860 (Fed. Cir.2004) (per curiam); see
also Kelley v. Dep't of Labor, 812 F .2d t 378, 13 80 (Fed. Cir. 1987) (,,tAl court may not
similarly take a liberal view of [a] jurisdictional requirement and set a different rule for
pro se litigants only.").
A dismissal under RCFC 12(b)(1) "is warranted when, assuming the truth of all
allegations, jurisdiction over the subject matter is lacking." Arakaki v. united states, 62
Fed. Cl. 244,247 (2004) (intemal quotation maxks omitted). .,When a party challenges
the jurisdictional facts alleged in the complaint, the court may consider relevant evidence
outside the pleadings to resolve the factual dispute." Id. (citing Reynolds ,846 F .2d at
747); see 2 James Wm. Moore et al., Moore's Federal Practice-Civil n n30pl e0l4)
("[u]nlike a Rule 12(b)(6) dismissal, the court need not confine its evaluation to the face
of the pleadings . . . ."). If the court determines that it does not have iurisdiction. it must
dismissthe claim. RCFC l2(hX3).
The court's six-year statute of limitations is a condition on the Tucker Act,s
waiver of sovereign immunity and fuither limits the court's jurisdiction. See Martinez v.
United States, 333 F.3d 1295,1316 (Fed. Cir. 2003) (en banc) ("It is well established that
statutes of limitations for causes ofaction against the United States, being conditions on
the waiver of sovereign immunity, are jurisdictional in nature."). The statute of
limitations provides that claims over which the Court of Federal Claims would otherwise
have jurisdiction "shall be baned unless the petition thereon is filed within six years after
such claim first accrues." 28U.S.C. $2501. A claim accrues under the Tucker Act
'\ryhen 'all events have occurred to fix the Govemment's alleged liability, entitling the
claimant to demand payment and sue here for his money."' Martinez, 333 F.3d at 1303
(quoting Nager Elec. Co. v. United States, 368 F.2d 847, 851 (Ct. Cl. 1966)).
I II. Discussion
A. Plaintiff s Retirement Pay Claim
1. Plaintiff Has Alleged a Money-Mandating Source of Law
Defendant argues that plaintiffhas failed to identifu any money-mandating source
of law to support this court's jurisdiction over plaintiffs claim for retirement pay. Def.'s
Mot. 11-12; see Fisher, 402F.3d at lI'72. Defendant "presume[s]" that plaintiff bases
his retirement pay claim on 10 U.S.C. g 3911, which governs the retirement of reserve
commissioned officers. Def.'s Mot. I l; cf. Def.'s Sur-Reply 2 n. I (stating that .,[s]ection
3911 is applicable here because Mr. Piotrowski was an officer").
Section 391I provides, in relevant part,
The Secretary of the Army may, upon the officer's request, retire a regular
or reserve commissioned officer of the Army who has at least 20 years of
service , at least l0 years of which have been active service as a
commissioned officer.
10 U.S.C. g 3911 (emphasis added). Defendant contends that ,,[t]he plain language of
section 3911 vests the Army with discretion to retire an officer when the specified criteria
have been [met], but there is nothing in the language of the statute that provides that a
service member with 20 years of service is entitled to 'retired' status in the military, or
retirement pay." Def.'s Mot. 11-12; see also Def.'s Sur-Reply 2. According to
defendant, because 10 u.s.c. $ 3911 does not mandate either retirement status or
retirement pay, it cannot serve as a basis for the court,s jurisdiction. Def.'s Mot. 12.
Plaintiffdoes not directly address defendant's argument, but instead, appears to
invoke the Military Pay Act, 37 u.s.c. g 204, as a money-mandating source of law. See
Pl.'s Sur-Reply 13-14.8 The Military Pay Act provides that "a member of a uniformed
service who is on active duty" is "entitled to the basic pay of the pay grade to which
assigned." 37 U.S.C. $ 204(a); cf. Murphv v. United States,993 F.2d871,872 (Fed. Cir.
1993) (stating that the Military Pay Act entitles reserve offrcers on active duty to pay and
allowances); Sargisson v. United States,9l3F.2d918,920 (Fed. Cir. 1990) (indicating
same). That is, section 204 "confers on an officer the right to the pay of the rank he was
appointed to up until he is properly separated from the service."' Sanders v. United
States, 594 F.2d 804, 810 (Ct. Cl. 1979) (en banc), superseded by statute on other
srounds by Defense Officer Personnel Management Act, Pub. L. No. 96-513, $ 105, 94
Stat. 2835 (1980) (codified as amended at 10 U,S.C. g 628), as recognized in Richev v.
United States, 322F.3d 1317 (Fed. Cir. 2003).
Defendant concedes that the Military Pay Act "may, in certain circumstances,
serve as the requisite money-mandating statute to bring a claim within the Court's
jurisdiction." Def.'s Sur-Reply 2. Defendant argues, however, that the Military Pay Act
is simply not applicable to plaintiff s claim:
Mr. Piotrowski has never alleged that he was not paid monies for duties he
performed while in service, or that he should have been permitted to remain
on active duty. Rather, he complains that he was kept in the Army too
long, and that he should have [been] placed in retired status.
Id.; see id. ("[T]he problem here is not that Mr. Piotrowski failed to mention 37 U.S.C.
$ 204 in both his complaint and his proposed amended complaint, but rather, that section
204 does not apply to his claim." (intemal citations omitted)); cf. Pl.'s Sur-Reply 5
(basing his action on the Army's alleged "illegal retention of the plaintiff in service,').
The case law suggests that this court possesses jurisdiction over military
retirement pay claims based not on the Military Pay Act, but on the applicable retirement
pay statutes.'" See. e.g., Loeh v. United States,73Fed.Cl.327,329 n.6 (2006) (holding
o Because plaintiffis proceeding pro se, the court will address this ground as if it
properly were pled in his Complaint. Cf. RCFC 9O (requiring a party to enumerate
statutory grounds relied upon to support claims); Haines v. Kerner, 404 U.S. 519,520
(1972) (per curiam) (stating that the allegations ofa pro se complainant are "h[e]ld to less
stringent standards than formal pleadings drafted by lawyers,').
" Plaintiff misattributes support for his Military Pay Act claim to Eastport S.S. corp.
v. United States , 372 F .2d 1002 (Ct. Cl. 1967) and Austin v. United Stares ,206 Ct. Cl.
719 (1975). See Pl.'s Sur-Reply l3-14.
'u On at least one occasion, this court has construed a claim for ,'retirement pay,,as
one for "back pay" falling under the Military Pay Act. In west v. united states, 103 Fed.
l0
that, because the subject "military retirement pay statutes . . . are money mandating," it
possessed jurisdiction over a discharged Navy service member's retirement pay claim
under 10 U.S.C. $ 6323 ("An officer of the Nary or Marine Corps who applies for
retirement after completing more than 20 years of active service, of which at least l0
years was service as a commissioned officer, may, in the discretion of the President, be
retired . . . .")), amended on other grounds bv,74Fed. Cl. 106 (Fed. Cl. 2006);
see also Lewis v. United Srates, 458 F.3d 1372, 1376 n. 2 (Fed. Cir. 2006) (drawing a
distinction between back pay claims arising under the Military Pay Act and "[r]etirement
Cl. 55 (2012), an enlisted service member who had served over twenty years in the Army
requested voluntary retirement under 10 U.S.C. $ 3914, which provides, in relevant part,
that "an enlisted member of the Army who has at least 20, but less than 30, years of
service . . . may, upon his request, be retired." See id. at 57,6I. At the time of his
retirement request, Mr. West was serving a thirty-year sentence in a Texas state prison for
sexual assault. Id. at 57. The Army separation board recommended that Mr. West be
retired; however, the designee of the Secretary of the Army rejected the separation
board's recommendation and honorably discharged Mr. West at the convenience of the
government. Id. 57-58. Mr. West "argue[d] that he [was] entitled to a retirement as a
matter of law following his more than 20 years of service." Id. at 61 .
Similar to defendant's argument here, the govemment argued that Mr. West failed
to allege a money-mandating source of law for his retirement pay claim and that the cowt
therefore lacked jurisdiction over the claim. Def.'s Mot. 6-8, West, 103 Fed. Cl. 55
(2006) (No. 11-321C), ECF No. 18. The court did not directly address the government,s
argument. Instead, the coun interpreted Mr. West's request for retirement pay as a
request for back pay resulting from the alleged wrongful discharge brought pursuant to
the Military Pay Act:
At the heart of [Mr. West's] complaint is his contention that he was
illegally discharged from the Army when the [designee of the] Secretary of
the Army rejected the recommendation of the separation board to ,retire,
the plaintiff and instead decided to discharge him from the Army for the
convenience of the govemment.
Id. at 60-61 . The court exercised jurisdiction over Mr. west's claim, observing that "[a]
claim by a former serviceman ofillegal discharge and entitlement to back pay has been
held to within the jurisdiction of the court." Id. at 59-60 (citing, inter alia, Sanders, 594
F.2d at 810). The court ultimately granted defendant,s motion forjudgment on the
administrative record, concluding that Mr. west was not entitled to retirement as a ma6er
of law. Id. at61,63. The court appears to have collapsed the concepts of "retirement
pay" and "back pay" when construing a retirement pay claim (similar to that brought by
Mr. Piotrowski here) as one for back pay under the Military pay Act.
n
pay claims . . . brought under other money-mandating statutes"-to include 10 U.S.C.
$ 6323); Ancman v. United States,77 Fed. CI.368, 368,374 (2007) (finding thatthe
plaintiffs' claim for readjustment oftheir retirement pay failed to state a claim under the
Military Pay Act and further finding that the plaintiffs could have invoked the Air Force's
retirement pay statute as a basis ofjurisdiction); Kirby v. United States ,201 Ct. Cl. 527 ,
533 (1973) (stating that "entitlement to active duty back pay and retirement pay arise
under different sections of the Code"); cf. Cedillo v. United States, 37 Fed. Cl. 128, 129
(1997) (concluding, without analysis, that the court hadjurisdiction over a claim by an
Air Force service member that he was improperly denied retirement benefits under l0
U.S.C. $ 8914 ("[A]n enlisted member of the Air Force who has at least 20, but less than
30, years of service . . .may, upon his request, be retired")), aff d, 124 F.3d 1266 (Fed.
Cir. 1997); Hare v. United States, 35 Fed. Cl. 353, 354 (1996) (similar), affd, 108 F.3d
1391 (Fed. Cir.1997) (Table).
Here, the Secretary of the Army denied ptaintiff s initial request to retire as a
commissioned officer pursuant to 10 U.S.C. $ 3911 as well as plaintiff s subsequent
request to retire as an enlisted member pursuant to l0 U.S.C. $ 3914. Had the Secretary
of the Army approved either of his requests, plaintiff would have been entitled to
retirement pay pursuant l0 U.S.C. $ 3929, which provides that "[a] member of the Army
retired under this chapter is entitled to retired pay computed under chapter 3 7 I of this
title." Accord Ancman,77 Fed. Cl. at376 (observing that "[o]nce the Secretary of the
Air Force approved plaintiffs' retirement applications, plaintiffs became entitled to
retirement pay pursuant to 10 U.S.C. $ 8929," which provides that "[a] member of the
Air Force retired under this chapter is entitled to retired pay computed under chapter 871
of this title"). Accordingly, the court finds that the Army retirement pay statutes are
money-mandating and serve as a basis for this court's jurisdiction over plaintiff s
retirement pay claim.
The court's finding that plaintiff has identified a money-mandating source of law
resolves only an aspect of the requisite jurisdictional inquiry regarding plaintiff s claim
for retirement pay.
2. Plaintiff s Retirement Pay Claim Falls Outside the Court's Statute of
Limitations
a. Plaintiff s Retirement Pay Claim Accrued in November 2000
Defendant asserts that plaintiff s retirement pay claim is barred by the court's six-
year statute of limitations because, according to defendant, plaintiffs retirement pay
claim accrued on June 7 , 2007 date his DD Form 214 lists him as separated from
-the
service. Def.'s Mot. 2, l0-1,l,; see also Def.'s Reply 4 (,,June 7, 2007,is the date
[plaintiffs] claim accrued, and he could have immediately challenged his dismissal and
loss of retired pay in this Court on that date."). Because plaintiff did not file his
complaint until September 30,2013, nearly four months after the court's limitations
12
period had run, defendant argues that the court lacks jurisdiction over plaintiff s
retirement pay claim. See Def.'s Reply 2. Plaintiff responds that he was not officially
released from active duty until April 1, 2008-the date on which he received his DD
Form 214. See Compl. 'lf 36; Pl.'s Resp. 11.
The parties' arguments appear to be premised on the theory that claims for
retirement pay based on an alleged wrongful discharge accrue on the date of discharge.
Davis v. United States, 108 Fed. Cl. 331, 33940 (2012), aff d, 550 F. App'x 864 (Fed.
Cir. 2013); Lev.y v. United States, 83 Fed. Cl.67,74 (2008); see Martinez, 333 F.3d at
1303 ("ln a military discharge case, this court and the Court of Claims have long held
that the plaintiffs cause of action for back pay accrues at the time of the plaintiff s
discharge."); cf. supra Part IILA.I (concluding that the Army retirement statutes-not the
Military Pay Act-serve as the basis of the court's jurisdiction over plaintiff s retirement
pay claim).
However, the cases that suggest a service member's claim for retirement pay
accrues on the date of his or her discharge are distinguishable from the case at hand. See.
94, Davis, 108 Fed. Cl. at 340 ("A date-of-discharge rule applies to wrongful discharge
claimants seeking back pay, whether labeled by [a plaintiff] as 'back pay,' 'retirement
pay,' or 'back retired pay."'); Levy, 83 Fed. Cl. at 74 ("Because this is a military pay case
seeking retirement pay, the applicable start date for accrual of the statute of limitations
regarding [the plaintiff s] claims is the date of his actual discharge from the [military].");
Kirby, 201 Ct. Cl. at 527 (finding that the plaintiff s "back pay claim and . . . retirement
claim are not severable under the facts of this case even though they arise under different
sections of the Code and accrue as the result of different events"). The service members
in those cases alleged that they were wrongfully discharged before becoming eligible for
voluntary retirement. See. e.9., Davis, 108 Fed. Cl. at337 ("Plaintiff alleges that the
Army violated [its retirement statutes] when it discharged him 'within two years o{'
quali$ing for retirement."'); Levy, 83 Fed. Cl. at 67 ("Plaintiff seeks retirement pay from
November 23, 1988, when plaintiff reached 62 years ofage, based on qualiffing years of
service that he would have completed had he not been discharged from the united States
Army Reserve in 1958."); Kirby, 201 Ct. Cl. at 532 ("[P]laintiff attempts to draw a
distinction between the active duty claim and the retirement claim by arguing that if the
[1963] discharge is found to be illegal as a matter of law, then he should receive
constructive credit for the years still to be served under his last 6-year enlistment contract
up to July 9, 1967, at which point he could have retired with more than 20 years of active
service to his credit."). That is, those claims for retirement pay were ,,founded on the
assertion that the claimant[s] had been improperly discharged (more than six years before
suit) and except for that invalid separation [they] would have continued to serve until
[becoming] eligible for retirement." Carlin v. United States, 578 F.2d 1391 (Ct. Cl.
1978) (interpreting Kirby, 201 Ct. Cl. at 532*540); see Kirby, 201 Ct. Cl. at 532 (stating
that the "plaintiff s pyramid ofpresumptions" in that case w€re "based upon voiding [his]
discharge").
13
In contradistinction, the plaintiff in this case contends that he should have been
retired several years prior to his discharge from service; thus, plaintiffs asserted
retirement pay claim is not based upon an effort to void an alleged unlawful discharge.
Having served over tlventy years, plaintiffargues he was eligible for voluntary retirement
when he submitted his retirement request pursuant to 10 U.S.C. $ 3911 on
August 10, 2000. Compl. fl l4; Pl.'s Ex. A at 2-3. Plaintiff s request was denied on
November 3, 2000. AR 159. Plaintiff submitted a second retirement request that same
day pursuant to 10 U.S.C. $ 3914, see Pl.'s Ex. C at 9, which was denied on
November 7,2000, see Compl. fl 29; Pl.'s Ex. C at 9. Had the Secretary of the Army
approved either of plaintiff s retirement requests, plaintiff would have been entitled to
retirement pay. See 10 U.S.C. $ 3929. It is the court's view that all the events that fixed
the liability of the govemment occurred no later than November 7,2000. See Martinez,
333 F.3d at 1303 (stating that a claim accrues under the Tucker Act "when all events
have occurred to fix the Govemment's alleged liability, entitling the claimant to demand
payment and sue here for money" (internal quotation marks omitted)). This finding is
further supported by the fact that plaintiff s requested start date for retirement pay was
December 1,2000. See Compl. flfl 6, a6; cf. Pl.'s Ex. A at 2-3 (Voluntary Retirement
Mem.) (requesting that he be "placed on the retired list on I December 2000').
Accordingly, plaintiff s retirement pay claim accrued in November 2000, and the filing of
his Complaint on September 30,2013 falls well outside the court's six-year statute of
limitations.
b. The Accrual of Plaintiff s Retirement Pay Claim Is Not Subject to Tolling
Plaintiff contends that the accrual suspension doctrine, the "half-a-legal-loaf'
doctrine, and the continuing claims doctrine apply to toll the accrual of his retirement pay
claim. The court addresses each ofplaintiffs arguments, in turn, and concludes that the
accrual ofplaintiffs retirement pay claim is not subject to any of the doctrines proffered
by plaintiff.
i. Accrual Suspension Doctrine
The accrual suspension doctrine provides "that the accrual of a claim against the
united states is suspended, for purposes of 28 U.S.c. $ 2501, until the claimant knew or
should have known that the claim existed." Martinez, 333 F.3d at 1319. To come within
the ambit of the accrual suspension doctrine, a plaintiff "must either show that defendant
has concealed its acts with the result that plaintiffwas unaware of their existence or it
must show that its injury was 'inherently unknowable' at the accrual date."rr Id. (internal
rr The doctrine is to be "strictly and narrowly applied,,' Welcker v. United States,
752F.2d 1577, 1580 (Fed. cir. 1985), and "ir is not necessary that the plaintiffobtain a
complete understanding of all the facts before the tolling ceases and the statute begins to
run," Hopland Band of Pomo Indians v. United Srates, g55 F.2d 15i3,1577 (Fed. Cir.
1988). "Indeed, absent active concealment by defendant, accrual suspension requires
t4
quotation marks omitted).
Plaintiffs arguments in support of the application of the accrual suspension
doctrine to his retirement pay claim are based on the view that his claim accrued on his
date of discharge. See Pl.'s Resp. 10-13; Pl.'s Sur-Reply 9-10. However, having found
that plaintiff s retirement pay claim accrued when the Secretary of the Army denied his
requests for retirement, see supra Part III.A.2.a, and given that plaintiff does not allege
the Secretary's denial of his retirement requests were "inherently unknowable," plaintiff
cannot avail himself of the accrual suspension doctrine here.
ii. Half-a-Legal-Loaf Doctrine
Plaintiff also attempts to invoke the "half-a-legal-loaf' doctrine, which, if
applicable, would restart the statute of limitations on his retirement pay claim. See Pl.'s
Resp.9-10; Pl.'sSur-Reply8-9. Thehalf-a-legal-loafdoctrineprovidesthatwhenthe
Board "grants favorable reliefto an applicant, it may not stop short ofgranting full relief."
Teichman v. United States, 65 Fed. Cl. 610, 617 (2005), dismissed, 143 F. App'x 347 (Fed.
Cir. 2005), order recalled and vacated, 143 F. App'x 364 (Fed. Cir. 2005), af? d, 162 F .
App'x977 (Fed. Cir. 2006); see Eurell v. United States,566F.2d I146, I149 (Ct. Cl.
1977) ("[T]he 'half-a-loaf doctrine normally applies to those cases in which the
administrative body decides that the claimant should prevail on a certain claim and that
relief is appropriate, but it arbitrarily awards less than the full appropriate relief (when
requested by the plaintiff) for the claim it recognizes."). "Failure ofthe Board to grant full
relief results in . . . 'a new cause of action' or a'continuing claim' which revives the
limitation period," Homcy v. United States,536 F.2d 360,364 (Ct. Cl. 1976), the theory
being that once the Board "decides that reliefis proper, it cannot arbitrarily decide to give
'half-a-legal-loaf,"'Rumph v. United States,228 Ct. Cl. 855, 857 (1981); see Eurell, 566
F.2d at 1149 ("Once an administrative body has made a decision that relief is proper, then
it has a duty to grant thorough and fitting relief." (intemal quotation marks omitted)).
Plaintiff appears to argue that because the Board granted him partial reliefby
correcting three items on his DD Form 214 but did not grant him the full relief that he
requested (e.g., clemency and upgrading his discharge to honorable), he can avail himself
of the half-a-legal-loaf doctrine. See Pl.'s Resp. 9-10. However, the doctrine only
applies "where the reliefsought should have followed as a matter of law from the partial
relief granted by the [Board], and when the claimant was required to seek administrative
relief before coming to the court." Rumph, 228 CL Cl. at 857; cf. Pl.'s Sur-Reply 8
(conceding same).
Plaintiff has not been denied any reliefto which he is entitled as a matter of law
what is tantamount to sheer impossibility of notice." Rosales v. United States, 89 Fed.
cI. s65,578 (2009).
t5
based upon the relief granted by the Board. The Board made three corrections to
plaintiffs DD Form 214: it decreased the length of his inactive service by approximately
four months, it increased his length of his foreign service by approximately three months,
and it added a Physician Assistant Readiness and Recertification Course to his military
education training. AR l8-20. As defendant notes, "Mr. Piotrowski does not identiS
any monetary relief, and there is none, that he is legally entitled to receive as a result of
the three corrections made to his DD Form 214." Def.'s Reply 4. The court agrees with
defendant that plaintiffhas received all of the reliefto which he is entitled and has thus
receiveda"full loaf." Seeid.(citingEurell,566F.2dat1149). Accordingly,plaintiff
cannot avail himself of the half-a-legal-loaf doctrine here.''
ii i. Continuing Claims Doctrine
Plaintiff next argues that the continuing claims doctrine extends the limitations
period on his retirement pay claim. Pl.'s Resp. 14. The continuing claims doctrine
applies when a plaintiff s claim is "inherently susceptible to being broken down into a
series of independent and distinct events or wrongs, each having its own associated
damages." Brown Park Estates-Fairfield Dev. Co. v. United States, 127 F.3d 1449, 1456
(Fed. Cir. 1997). "In such cases, the continuing claims doctrine operates to save later
arising claims even if the statute of limitations has lapsed for earlier events." Ariadne
Fin. Servs. Ptv. Ltd. v. United States, 133 F.3d 874,879 (Fed. Cir. 1998). Notably, "a
claim based upon a single distinct event, which may have continued ill effects later on, is
not a continuing claim." Brown Park Estates-Fairfield Dev. Co.,127 F.3d at 1456.
Plaintiff s invocation of the continuing claims doctrine is misplaced. Plaintiff s
retirement pay claim is based on a single distinct event-the denial of his request for
retirement. Plaintiffls retirement pay claim is not a continuing claim that accrues each
time an alleged monthly retirement paym€nt is due. See Davis, 108 Fed. Cl. 343
(rejecting similar argument). In other words, plaintiff s retirement pay claim "accrue[d]
'at one time, once and for all,' . . . even though the asserted obligation to pay the plaintiff
. . . continues."'' See Martinez, 333 F.3d at 1304 (stating similar with respect to a
'' Because plaintiff plainly fails to satisfr the first factor of the Rumph test, the court
deems it unnecessary to address whether plaintiff was required to seek administrative
relief with the Board prior to filing his action in this cou(. See Rumph v. United States,
228 Ct. CI.855, 857 (1981); Pl.'s Sur-Reply 6, 9-10 (addressing the second Rumoh
fbctor); Def.'s Sur-Reply 4-5 (same).
'' Moreover, the "independent and distinct wrongs" alleged by plaintiff-including
the Army's failure to remove the flag from his personnel file and the Army's initiation of
UCMJ proceedings against plaintiff, see Pt.'s Resp. 14-all occurred more than six years
prior to the filing of plaintiff s Complaint. Thus, even ifthese events did, as plaintiff
alleges, "give[] rise to a separate cause of action," see id. at 15, they would still fall
16
plaintiffs claim for back pay). Thus, the continuing claims doctrine does not apply to
plaintiff s retirement pay claim.
Because none of the cited doctrines apply to toll claim accrual, the court lacks
jurisdiction over plaintiff s retirement pay claim.
B. Plaintiff s APA Claim
Plaintiff further alleges that the Army violated the APA, 5 U.S.C. gg 701-706, by
failing to follow Army regulations regarding retirement of Army personnel with more
than twenty years of active service. Compl. flfl 33,42;Pl.'s Sur-Reply 24. The APA
provides that "[a] person suffering [a] legal wrong because ofan agency action, or
adversely affected or aggrieved by [an] agency action within the meaning ofa relevant
statute, is entitled to judicial review thereof." 5 U.S.C. g 702. "The APA waives the
sovereign immunity of the United States only for'[a]n action in a court of the United
States seeking relief other than money damages."' James v. Caldera, 159 F.3d 573,578
(Fed. Cir. 1998) (quoting 5 U.S.C. g 702). This court's Tucker Act jurisdiction is limited
to claims for monetary damages, see 28 U.S.C. g l 9l(a)(1); Testan,424 U.S. at 398, or
to equitable relief ancillary to a money judgment, see infra Part III.H. Accordingly, the
court is without jurisdiction to consider challenges to agency action under the APA. See
Martinez, 333 F.3d at 1313 ("[T]he Court of Federal Claims lacks APA
jurisdiction . . . ."); Stroughter v. United States, 89 Fed. Cl.755,763 (2009) ("Federal
district courts-not the Court of Federal Claims-are the proper fora for APA actions.").
C. Plaintiff s Constitutional Claims
Plaintiff also asserts claims pursuant to various provisions of the U,S.
Constitution, including the Fifth Amendment and the Eighth Amendment. Compl. fllJ 5,
8-9; see also id. !f 45 (claiming that the Army "violated the plaintiffls rights under the
Double Jeopardy clause of the Fifth Amendment"). In addition, plaintiff contends that
the Army "deprived the plaintiff of due process and equal protection under the law," id.
11112,35,41 ; see also id. nn 41, 44 (claiming other due process violations), which the
court construes as based on the Fifth and Fourteenth Amendments.
"In order for this Court to have jurisdiction over constitutional . . . claims. the claims
must be money mandating." Tasby v. United States, 9l Fed. Cl.344,346 (2010) (citing
Mitchell, 463 u.s. at216). None of the constitutional provisions upon which plaintiff
relies can fairly be interpreted as money-mandating. See. e.g., Trafn]' v. United States, 503
F.3d 1339, 1340 (Fed. Cir. 2001) (per curiam) ("The Court of Federal Claims does not
have jurisdiction over claims arising under the Eighth Amendment, as the Eighth
Amendment is not a money-mandating provision." (intemal quotation marks omitted));
outside the court's statute of limitations.
t7
James, 159 F.3d at 58 I (observing that the Double Jeopardy Clause of the Fifth
Amendment is not money mandating); LeBlanc v. United States, 50 F.3d 1025, 1028 (Fed.
Cir. 1995) ("[T]he Due Process Clauses of the Fifth and Fourteenth Amendments [and] the
Equal Protection Clause of the Fourteenth Amendment. . . [are not] a sufficient basis for
jurisdiction because they do not mandate payment of money by the govemment.").
Because violations ofthese constitutional provisions do not create a right to money
damages, the court does not have jurisdiction over plaintiff s constitutional claims.
D. Plaintiff s Contract and Promissory Estoppel Claims
Plaintiff appears to argue that the Army violated a contractual agreement by not
allowing him to retire. See Compl, fll] 4, 39. To the extent that plaintiff is alleging that
the Army violated his enlistment agreement, see AR 412-15 (Enlistment Agreement), it
is well-established that "[e]nlistment agreements are not contracts enforceable under the
Tucker Act," Andrews v. United States, 550 F. App'x 886, 888 (Fed. Cir. 2014) (citing
Chu v. United States,773 F.2d 1226, 1229 (Fed. Cir. 1985)). Rather, a service member's
"entitlement to pay is dependent upon [a] statutory right." Bell v. United States, 366 U.S.
393, 401 ( 1961); see also Schism v. United States, 3 l6 F.3d 1259, t276-77 (Fed. Cir.
2002) (en banc) ("[T]he plaintiffs' claim for breach of . . . contract for retirement health
benefits is defeated by the principle that statutes govern entitlement to these benefits, not
any contracts between the recruit and the govemment."). Accordingly, the court lacks
jurisdiction over plaintiff s breach of contract claim.
Plaintiff also contends that the Army broke its "promise" to allow plaintiff to retire
as a commissioned officer through a Time in Service (TIS) Waiver.ra Compl. U 43; see
also id. fltf 25,32. Plaintiff contends that "at a formal Career Status Presentation for
[Physician Assistants]," an Army representative "promise[d]" that "the TIS Waiver for
retirement as a commissioned officer (8 years), was being extended until 30 Sept. 2001 ."
Id. fl 43; see also id. !l 25 (alleging that he had been promised that he was "eligible for
retirement at the highest rank obtained and vested"). Plaintiff appears to allege a
promissory estoppel claim. Cf. Restatement (Second) of Contracts $ 90( l ) ( 198 1)
(providing that promissory estoppel involves "Ia] promise which the promisor should
reasonably expect to induce action or forbearance on the part of the promisee or a third
person and which does induce such action or forbearance"). This court, however, lacks
jurisdiction over promissory estoppel claims, "as it requires the finding ofa contract
'o To be eligible to retire as an officer, the Secretary ofthe Army could reduce the
requirement that officers serve at least ten years in commissioned service to a period of
not less than eight years. 10 U.S.C. g 3911(b) (2000); see also Army Reg. 600-8-24 $ 6-
ia(c)(1) (1995) ('tAl commissioned officer with 20 years [of active federal service] (of
which 10 years is active commissioned service (8 years if waived . . .)) may on his or her
request and the approval of the Secretary of the Army be retired (10 USC 39l l).).
18
implied-in-law against the Govemment, for which there has been no waiver of sovereign
immunity." Sinclair v. United States, 56 Fed. CL.270,281 (2003) (citing Hercules. Inc. v.
united states, 516 u.s. 417,423-24 (1996)); see Steinberg v. United States,90 Fed. Cl.
435, 444 (2009) ("This court has no jurisdiction to hear a claim for promissory estoppel,
and to the extent plaintiff substantively asserts the elements for promissory estoppel,
dismissal for lack ofjurisdiction under 12(b)(l) is appropriate." (internal citations
omitted)). The court therefore lacks jurisdiction over plaintiff s breach of promise claim.
E. Plaintiff s Fraudulent Misrepresentation Claims
Plaintiff also makes two fraudulent misrepresentation claims-that the Army
"intentionally misled" him into entering an enlistment agreement, Compl. fl 34, and into
believing that he was eligible to retire as a commissioned officer, id. lTfl 32,43. These
claims sound in tort. See Restatement (Second) of Torts $ 525 (1977) ("One who
fraudulently makes a misrepresentation of fact, opinion, intention or law for the purpose
of inducing another to act or to refrain from action in reliance upon it, is subject to
liability to the other . . . ."). This court lacks jurisdiction over claims that sound in tort.
28 U.S.C. $ la91(aXl); see also Copar Pumice Co. v. United States, I 12 Fed. Cl. 515,
537 (2013) ("Misrepresentation claims fall outside the court's jurisdiction under the
Tucker Act, which bars this court from hearing claims 'sounding in tort."'(intemal
citation omitted)). Accordingly, the court does not possess jurisdiction over plaintiffs
fraudulent misrepresentation claims.
F. Plaintiff s Collateral Attack on His Court-Martial Conviction
Plaintiff argues that the Army acted outside its jurisdictional authority when it
initiated court-martial actions against him following his August 2000 DUI. See Pl.'s
Resp. 16, 19. Plaintiff contends that the Army's court-martial actions "violated double
jeopardy protections" because he had already received a letter of reprimand, his on-base
driving privileges had been suspended, and the state ofFlorida intended to prosecute him
for his DUI. Id. at 17; see also Compl. fl 5. In plaintiff s view, "[a]bsent the illegal act of
attempting to prosecute the plaintiff for crimes already punished, the [Army] would have
had no jurisdiction over plaintiff in April 2001 to initiate court[]-martial [proceedings] for
the [subsequent] fatal DUI." Pl.'s Resp. 18; see also id. at 3 ("[I]f defendant was found
to lack jurisdiction to prosecute the initial DUI, all subsequent actions, including the
courts-martial, would be invalidated . . . .").
The court construes plaintiff s claim as a collateral attack on his court-martial
conviction. This court "can examine court-martial proceedings only in those rare
instances where a serviceman who has been convicted in a court-martial trial sues in our
court for back pay and collaterally attack[s] the court-martial proceedings on the ground
that he was deprived of his constitutional rights in such proceedings." Artis v. United
States,506F.2d1387,1391 (Ct. Cl. 1974) (emphasisomined)). Thatis,aplaintiffmay
collaterally attack a court-martial conviction in this court on the grounds that the court-
l9
martial proceedings were so "depriv[ed] of fundamental faimess" that they impaired the
plaintiff s due process rights. Bowline v. United States, 7 13 F.2d 1558, I 561 (Fed. Cir.
1983); see Loneval v. United States, 41 Fed. Cl.291,295 (1998) (stating that this court
may only review court-martial proceedings if a plaintiffcan establish "by clear and
convincing evidence that: (1) significant constitutional defects existed that deprived [the
plaintiffl ofdue process; (2) the court-martial proceeding lacked fundamental faimess,
and (3) the court's reexamination does not amount to a retrial of the case").
Here, however, the court need not consider whether plaintiff can satisff these
elements because plaintiff s attempt to collaterally attack his court-martial conviction is
baned by the court's statute of limitations. Plaintiff was convicted by a general court-
martial on June 7 , 2002. AR 8 1 . His conviction became final on February 8, 2007, when
the Court of Appeals for the Armed Forces denied plaintiff s petition for review. AR247.
Accordingly, plaintiff s claim accrued no later than February 8,2007, and the filing of his
Complaint on September 30, 2013 falls outside the court's six-year statute of limitations.
The court further observes that plaintiff has waived his opportunity to raise a
collateral attack on his court-martial conviction. Absent a showing of"good cause and
prejudice," "a plaintiff seeking to collaterally attack a court-martial conviction on
constitutional grounds . . . waive[s] his constitutional claims by failing to raise them at all
in the military justice system." Martinez v. United States ,914 F .2d 1486, 1488 (Fed. Cir.
1990) (internal quotation marks omitted); see also Moore v. United States, 61 Fed. Cl.
146, 150-5 I (2004) C'A claim not raised in the military courts is waived for the purposes
of . . . cof lateral review."), af? d, l2l F. App'x 857 (Fed. Cir. 2005). Plaintiff appealed
his court-martial conviction to both the Army Court of Criminal Appeals and the Court of
Appeals for the Armed Forces, see AR 84-89,247 , and did not raise this argument before
either tribunal, see Attachments to Answer and Retum at23646,284-306, Piotrowski v.
Commandant. USDB,2009 WL 5171780 (D. Kan. Dec.22,2009) G.{o. 08-3143-RDR),
ECF No. 14-2 (plaintiff s briefs before the Army Court of Criminal Appeals and Court of
Appeals for the Armed Forces). Because plaintiff does not allege good cause for his
failure to do so, plaintiff s claim is waived. See Moore, 121 F. App'x at 860 (finding that
a plaintiff s failure to show "where in the record he adequately put the military tribunals
on notice of his double jeopardy claim" resulted in a waiver of his argument).
G. Plaintiff s Request for Reimbursement of Certain Medical Costs
Plaintiff requests reimbursement for certain medical costs incuned by his
dependents between June7,2007 and April 1, 2008. See Compl. tTfl 6, 38. As defendant
correctly observes, see Def.'s Mot.26, when a service member seeks relief from a
military corrections board before bringing suit in this court, any argument not previously
raised before the board is waived, see Metz v. United States , 466 F .3d 991, 998 (Fed. Cir.
2006) ("[A] plaintiff may waive an argument with respect to [a non-jurisdictional] issue
by not asserting it before the Board."); Doyle v. United States, 599 F.2d 984, 1000 (Ct.
Cl. l9'79) ("It has long been part ofour law that a party cannot raise an issue on appeal to
20
a court when it faited to raise it before an administrative agency competent to hear."),
amended on other grounds b)', 609 F.2d 990 (Ct. Cl. 1979). The record reflects that
plaintiff did not raise his claim for medical care costs before the Board. Accordingly,
plaintiff has waived his opportunity to raise this claim.
H. Plaintiff s Request for Correction of His Military Records
Plaintiffalso requests that the court correct his military records "to reflect
corrections to his DD-214 [form, conceming] awards, type of discharge, and rank at
retirement." Compl. 'll 48; cf. Compl. fl 4 (claiming that the Army failed to "correct
military records to properly reflect [his] date of retirement"). Pursuant to 28 U.S.C.
$ la9l(aX2), the court may order the conection of military records if it is "incident of
and collateral to" a money judgment. Section 1491(a)(2) provides:
To provide an entire remedy and to complete the relief afforded by the
judgment, the court may, as an incident of and collateral to any such
judgment, issue orders directing restoration to office or position, placement
in appropriate duty or retirement status, and correction of applicable
records, and such orders may be issued to any appropriate official of the
United States.
Stated another way, the court has no authority to grant equitable relief"unless it is tied
and subordinate to a money judgment." James, I 59 F.3d at 580 (intemal quotation marks
omitted). Where, as here, the court lacks jurisdiction to grant monetary relief, it also
Iacks jurisdiction to correct military records.
IV. Conclusion
As addressed rnore fully above, the court finds that is without j urisdiction over
plaintiff s claims. As such, defendant's motion to dismiss for lack ofjurisdiction is
GRANTED. Plaintifls claims are dismissed without preiudice.
IT IS SO ORDERED.
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