Deemer v. Board for Correction of Naval Records

Filing 15

ORDER. ORDERED that Defendant's Motion to Dismiss 10 is GRANTED in partand DENIED in part. This Court lacks jurisdiction to consider Plaintiff's military status change claim in that it seeks monetary relief that is within the Court of Fed eral Claims exclusive jurisdiction under the Tucker Act. Because I am without jurisdiction to consider the claim, Defendant's Motion is DENIED with respect to its statute of limitations and Rule 12(b)(6) defenses. Commander Deemer shall have 20 days, or until July 20, 2015, to request a transfer to the Court of Federal Claims. Failing a timely request, this matter shall be deemed closed and may be terminated without further order of the court. Entered by Judge John L. Kane on 06/30/15.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-2978-JLK
LEONARD DEEMER,
Plaintiff,
v.
BOARD FOR CORRECTION OF NAVAL RECORDS,
Defendant.
________________________________________________________________________
ORDER
________________________________________________________________________
KANE, J.
Navy Commander Leonard Deemer challenges a decision of the Board for
Correction of Naval Records (“BCNR”) denying his records change request from
disability discharged to retired, in order to obtain retirement back pay. Commander
Deemer contends he became entitled to retirement benefits at age 60 despite having
elected a medical disability discharge from service before then, claiming, among other
things, that he had continued to serve after discharge in the Retired Reserve and had
elected to repay the disability severance pay he had received on his initial medical
discharge. The BCNR disagreed, concluding his acceptance of a disability severance in
1990 rendered him ineligible for retirement pay, and denied his petition to correct his
record.
Commander Deemer petitioned this court for review, arguing the BCNR

misinterpreted 10 U.S.C. §1213 and 10 U.S.C. §1414 on concurrent availability of VA
and retirement benefits in his case and that its denial was therefore arbitrary and
capricious. The matter is before me on the government’s Motion to Dismiss (Doc. 10),
which argues I lack subject matter jurisdiction over a dispute for retirement pay that
belongs exclusively in the Court of Federal Claims under the Tucker Act or, in the
alternative, because Commander Deemer’s claim fails on its merits under Fed. R. Civ. P.
12(b)(6). I agree the matter belongs in the Court of Claims, and direct Commander
Deemer to seek a transfer there. I express no view on the merits of his claims under 10
U.S.C. § 1213 or 1414.
FACTS AND PROCEDURAL HISTORY
The following facts are alleged in Plaintiff’s Complaint and deemed true for
purposes of this Motion.
While on active duty in 1984, Deemer was notified that his retirement eligibility
date at age 60 would be in November 1996. Six years before that date, at age 54,
Commander Deemer elected a medical discharge with a 10% disability rating. He
received disability severance pay in the amount of $98,942.40. Since then, he claims his
disability rating has increased to the current 90%.
In 1991, Commander Deemer asked the BCNR to correct his records to reflect a
30% disability rating, which the BCNR denied. He then requested a transfer to the
Retired Reserve,which request was granted by letter on September 16, 1991, effective
February 1, 1991. Commander Deemer subsequently qualified for disability benefits
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from the VA, which began withholding amounts from those benefits to reimburse the
disability severance he had received in 1990.
In 2007, Commander Deemer petitioned the BCNR to change his records to reflect
that he was not discharged with disability severance pay in 1990, but was transferred to
the inactive list with eligibility to receive retired pay when he turned 60. BCNR denied
this request, stating that Deemer had accepted the lump sum instead of retirement benefits
in 1990, and that the decision was “informed and well considered.” The Board also noted
the Concurrent Retirement and Disability Pay Act, 10 USC §1414, enacted in 2004, did
not allow a “basis for correction” as the Act is not retrospective. BCNR declined
Deemer’s request to reconsider its decision by a letter dated December 5, 2008.
Plaintiff filed this action on November 3, 2014, challenging BCNR’s decision as
involving an erroneous interpretation of the applicable military benefits statutes and
seeking an “award [of] all damages to which he is entitled, including, but not limited to
back due retirement pay” and the “continuation of full retirement benefits to [him] plus
full VA benefits.”
DISCUSSION
BCNR alleges this court does not have subject matter jurisdiction and the case
should be dismissed per Rule 12(b)(1), or alternatively, for failure to state a claim on
which relief can be granted per Rule 12(b)(6). Deemer counters that there is jurisdiction
under the Administrative Procedure Act.
Sovereign immunity generally protects the United States and its agencies from suit
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when officers are acting in their official capacity. The defense is jurisdictional in nature.
Wyoming v. United States, 279 F.3d 1214, 1225 (10th Cir. 2002). “General jurisdictional
statutes such as 28 U.S.C. § 1331 do not waive the Government's sovereign immunity,”
so a specific statute must be named to waive immunity and allow for jurisdiction. Id. In
this case, Plaintiff characterizes his claims as one for equitable, rather than purely
monetary, relief and relies on the Administrative Procedure Act (APA), 5 U.S.C. § 702 to
establish subject matter jurisdiction. Section 702 of the APA provides, in relevant part,
that:
An action in a court of the United States seeking relief other than money
damages and stating a claim that an agency or an officer or employee
thereof acted or failed to act in an official capacity or under color of legal
authority shall not be dismissed nor relief therein be denied on the ground
that it is against the United States or that the United States is an
indispensable party.
Commander Deemer overreaches. The APA’s sovereign immunity waiver is not
applicable when “any other statute that grants consent to suit expressly or impliedly
forbids the relief which is sought,” Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d
1074, 1080 (10th Cir. 2006), and in this case, the Tucker Act applies and prohibits
Commander Deemer’s suit in this court. A party may not circumvent the Claims Court’s
exclusive jurisdiction by framing a complaint in the district court as one seeking
injunctive, declaratory or mandatory relief where the thrust of the suit is to obtain money
from the United States. See Rogers v. Ink, 766 F.2d 430, 434 (10th Cir. 1985).
The Tucker Act, 28 U.S.C. §§ 1346, 1491, vests exclusive jurisdiction in the Court

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of Federal Claims over non-tort monetary claims against the United States exceeding
$10,000, including claims, such as the one here, seeking to correct discharge
classifications in military records in order to receive retirement pay. Burkins v. United
States, 112 F.3d 444, 449-51 (10th Cir.1997)(action seeking change from honorable
discharge to disability discharge for purposes of receiving disability retirement pay had to
be filed in Court of Claims under Tucker Act).
The test for Tucker Act jurisdiction is whether plaintiff’s “prime objective” or
“essential purpose” is to recover money from the government, as opposed to some other
form of relief. Burkins, 112 F.3d at 449. In this case, like in Burkins, the military
veteran’s primary objective is clearly the former. See Complaint (Doc. 1) at p. 5 (seeking
“damages . . . including . . . back due retirement pay,” “full retirement benefits,” and “prejudgment and post judgment interest”). C.f. Burkins at 450, n. 5 (distinguishing cases
where military veterans filed suit in district court to upgrade discharge from undesirable
or dishonorable to honorable, because such a change confers non-monetary benefits that
may exceed any back-pay award). Because Cdr. Deemer’s status change seeks no benefit
other than additional retirement pay, the Burkins-recognized distinction does not apply.
Under Burkins, Commander Deemer’s military correction claim properly belongs
in the Court of Federal Claims. In its Motion to Dismiss, however, the government
implies such a transfer would be futile because Deemer was aware of the facts that give
rise to his claim more than 18 years ago, far beyond the applicable statute of limitations.
Because I lack jurisdiction over the matter entirely, I do not address that issue, but leave it
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for Commander Deemer to consider in determining whether and how to proceed.
ORDERED that Defendant’s Motion to Dismiss (Doc. 10) is GRANTED in part
and DENIED in part. This Court lacks jurisdiction to consider Plaintiff’s military status
change claim in that it seeks monetary relief that is within the Court of Federal Claims
exclusive jurisdiction under the Tucker Act. Because I am without jurisdiction to
consider the claim, Defendant’s Motion is DENIED with respect to its statute of
limitations and Rule 12(b)(6) defenses. Commander Deemer shall have 20 days, or until
July 20, 2015, to request a transfer to the Court of Federal Claims. Failing a timely
request, this matter shall be deemed closed and may be terminated without further order
of the court.

Dated June 30, 2015.

s/John L. Kane
SENIOR U.S. DISTRICT JUDGE

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