SHAFER v. USA

Filing 33

Order of Dismissal granting 20 Motion to Dismiss The Clerk is directed to enter judgment. Signed by Judge Lydia Kay Griggsby. (ps) Copy to parties.

In the United States Court of Federal Claims
No. 13-889C
(Filed July 10, 2015)
ALAN SHAFER,
Plaintiff,
v.
THE UNITED STATES,
Defendant.

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Rule 12(b)(1); Subject-Matter
Jurisdiction; Mootness.

MEMORANDUM OPINION AND ORDER
William S. Aramony, Alexandria, Virginia, for plaintiff.
Elizabeth Anne Speck, Trial Attorney, Steven J. Gillingham, Assistant Director, Robert E.
Kirschman, Jr., Director, Joyce R. Branda, Assistant Attorney General, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant.
INTRODUCTION
Plaintiff, Alan Shafer, brought this military pay action seeking review of a decision by the
Air Force Board for Correction of Military Records (“AFBCMR”) to deny his request for length
of service retirement pay. See generally Compl. Specifically, plaintiff alleges that the AFBCMR
erred in denying him length of service retirement pay under 10 U.S.C. § 1401(b). Id. ¶¶ 28-31
(citing 10 U.S.C. § 1401(b) (2012 & Supp. 2013). Following a stay and remand of this matter to
the AFBCMR, the board reversed course and decided to permit plaintiff to receive length of
service retirement pay. Def. Mot. at 2-3. In light of the AFBCMR’s decision, the government
has moved to dismiss plaintiff’s complaint as moot, pursuant to Rules 12(b)(1), 12(b)(6), and
52.2 of the Rules of the United States Court of Federal Claims (“RCFC”). See generally Def.
Mot. For the reasons set forth below, the Court GRANTS the government’s motion to dismiss.

FACTUAL AND PROCEDURAL BACKGROUND1
A.

Factual Background

Plaintiff, Alan Shafer, is a retired Lieutenant Colonel who served honorably with the
United States Air Force for more than 30 years. Compl. at ¶ 2. Plaintiff commenced this
military pay action on November 8, 2013, seeking review of a decision by the AFBCMR to deny
his request for length of service retirement pay, in lieu of disability retirement pay. See generally
Id.
In 2002, plaintiff was deployed to Afghanistan for non-flight duties. Id. at ¶ 4.
Following this deployment, plaintiff injured his right knee. Id. The Air Force subsequently
processed plaintiff for a disability retirement. Id. at ¶ 7. On August 29, 2009, plaintiff was
honorably discharged from the Air Force and retired on disability retirement. Id. at ¶ 8.
The amount of plaintiff’s disability retirement pay is capped at 75% of his base pay. Id.
But, plaintiff is entitled to receive length of service retirement pay at 79% of his base pay. Id;
see also 10 U.S.C. § 8918 (2012).
Plaintiff appealed the Air Force’s decision to pay him disability retirement pay instead of
length of service retirement pay to the AFBCMR. Compl. at ¶ 10. In his appeal, plaintiff argued
that he should be paid under the most favorable retirement formula available–which, in his case,
is the formula to calculate length of service retirement pay. Id. at ¶¶ 17-18. The AFBCMR
denied plaintiff’s appeal, finding that it was not clear whether plaintiff was actually denied the
opportunity to elect length of service retirement pay over disability retirement pay. Id. at ¶ 19.
Plaintiff appealed the AFBCMR’s decision to this Court on November 8, 2013. See
generally Id. In his complaint, plaintiff alleges that the AFBCMR misinterpreted 10 U.S.C. §
1401(b), which provides that, if a person would “otherwise be entitled” to retirement pay under

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The facts recounted in this Memorandum Opinion and Order are taken from plaintiff’s
complaint cited in this Memorandum Opinion and Order as (“Compl. at ___”), defendant’s
motion to dismiss and the appendix attached thereto (“Def. Mot. at __” and “Def. App. at __”),
plaintiff’s response and opposition to defendant’s motion to dismiss (Pl. Opp. at __”), and
defendant’s reply brief and the exhibits attached thereto (“Def. Reply at __” and “Def. Ex. __”).
Except where otherwise noted, the facts recited here are undisputed. The Court accepts the
undisputed facts recited in the complaint as true.

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more than one formula listed in section 1401(a), or pursuant to any other provision of law, the
person is entitled to be paid pursuant to the provision of law that is most favorable to him. Id. at
¶ 28. Specifically, plaintiff argues that he is entitled to the more favorable retirement of 79% of
his base pay, which he would have received if the AFBCMR applied the formula calculating
retirement pay based upon his length of service under 10 U.S.C. § 8918. Id. at ¶¶ 29-30. As
relief, plaintiff seeks to be retroactively designated as retired pursuant to the provisions contained
in 10 U.S.C. § 8918, along with retirement pay, back pay, and attorneys fees. Id. at Prayer for
Relief.
On March 5, 2014, the Court stayed and remanded this matter to the AFBCMR so that
the board could re-evaluate whether plaintiff was entitled to be designated as retired pursuant to
the length of service retirement provisions contained in 10 U.S.C. § 8918. See Order Staying &
Remanding Case, dated March 5, 2014. On December 31, 2014, the AFBCMR issued an opinion
allowing plaintiff to elect length of service retirement pursuant to 10 U.S.C. § 8918 rather than a
disability retirement. See Def. App. at 1-7.2
On January 28, 2015, the Air Force corrected plaintiff’s military records to rescind his
disability retirement. Id. at 8-10. The Air Force also issued a corrected DD Form 214, which is
a correction of plaintiff’s retirement records. Id. at 11-19. In addition, the Air Force issued a
new retirement certificate. Id. at 20-21. Plaintiff has since been paid the amount of retirement
pay that he is due as a result of the AFBCMR’s decision. Def. Ex. at 1.
B.

Procedural Background

Plaintiff commenced this action on November 8, 2013. See generally Compl. On
March 5, 2014, the Court stayed and remanded this case to the AFBCMR. See Order Staying &
Remanding Case, dated March 5, 2014. On February 27, 2015, the government moved to
dismiss plaintiff’s complaint. See generally Def. Mot. On March 29, 2015, plaintiff filed a
response to the government’s motion. See generally Pl. Opp. On June 22, 2015, the
government filed its reply. See generally Def. Reply.

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Although the AFBCMR found no legal error, the board concluded that it would be in the
interest of justice to award plaintiff a length of service retirement. Def. App. at pages 6-7.

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LEGAL STANDARDS
A.

Subject-Matter Jurisdiction

It is well established that subject-matter jurisdiction is “a threshold question that must be
resolved . . . before proceeding to the merits” of a claim. Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 88-89 (1998). When considering whether to dismiss an action for lack of subjectmatter jurisdiction, the Court is “obligated to assume all factual allegations [of the complaint] to
be true and to draw all reasonable inferences in plaintiff’s favor.” Henke v. United States, 60
F.3d 795, 797 (Fed. Cir. 1995). However, plaintiff bears the burden of showing jurisdiction by a
preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748
(Fed. Cir. 1988). If subject-matter jurisdiction is found to be lacking, the Court must dismiss the
action. RCFC 12(h)(3).
The jurisdiction of the United States Court of Federal Claims is established by the Tucker
Act, which provides:
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an 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.
28 U.S.C. § 1491(a)(1) (2012). The Tucker Act, however, is “a jurisdictional statute; it does not
create any substantive right enforceable against the United States for money damages. . . . [T]he
Act merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the
substantive right exists.” United States v. Testan, 424 U.S. 392, 398 (1976). And so, to pursue a
substantive right under the Tucker Act, a plaintiff must identify and plead a money-mandating
constitutional provision, statute or regulation, or an express or implied contract with the United
States. Cabral v. United States, 317 F. App'x 979, 981 (Fed. Cir. 2008).
B.

Mootness

It is well-established that justiciability, including mootness, is a question of subjectmatter jurisdiction. CW Gov’t Travel, Inc. v. United States, 46 Fed. Cl. 554, 557 (2000) (citing
North Carolina v. Rice, 404 U.S. 244, 246 (1971)). “The mootness doctrine originates from
the ‘case or controversy’ requirement of Article III of the United States Constitution.”
Northrop Corp., Northrop Elecs. Sys. Div. v. United States, 27 Fed. Cl. 795, 800 n.4 (1993)
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(citing De Funis v. Odegaard, 416 U.S. 312, 316 (1974)). Although the jurisdiction of this
Court, as an Article I court, is not limited by the “case or controversy” requirement of Article
III, this Court and other Article I courts have adopted many justiciability precepts based upon
prudential grounds. See, e.g., Schooling v. United States, 63 Fed. Cl. 204, 209 (2004)
(dismissing case for lack of subject-matter jurisdiction because claims asserted in the complaint
were moot); CW Gov’t Travel, 46 Fed. Cl. at 558 (citing Zevalkink v. Brown, 102 F.3d 1236,
1243 (Fed. Cir. 1996)) (granting motion to dismiss for mootness); see also Anderson v. United
States, 344 F.3d 1343, 1350 n.1 (Fed. Cir. 2003) (“The Court of Federal Claims, though an
Article I court . . . applies the same standing requirements enforced by other federal courts
created under Article III.”).
In addition, the Supreme Court has held that “a case is moot when the issues presented
are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” City of
Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (citing Powell v. McCormack, 395 U.S. 486,
496 (1969)). And so, “jurisdiction, properly acquired, may abate if the case becomes moot
because: (1) it can be said with assurance that ‘there is no reasonable expectation . . .’ that the
alleged violation will recur . . . and (2) interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation.” Davis, 440 U.S. at 631 (citations omitted).
LEGAL ANALYSIS
A.

Plaintiff’s Claims Are Moot

Dismissal of plaintiff’s complaint for mootness is appropriate here because the
government has provided plaintiff with all of the relief that he seeks in this action. This Court
has long recognized that mootness is a question of subject-matter jurisdiction. CW Gov’t
Travel, 46 Fed. Cl. at 556-58 (granting motion to dismiss for mootness) (citing North Carolina
v. Rice, 404 U.S. 244, 246 (1971)); see also Schooling, 63 Fed. Cl. at 209 (dismissing case for
lack of subject-matter jurisdiction because claims asserted in the complaint were moot). In
addition, the Supreme Court has held that “a case is moot when the issues presented are no
longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Davis, 440 U.S.
at 631 (citing Powell, 395 U.S. at 496). A case must be justiciable in order for the Court to
possess subject-matter jurisdiction to adjudicate the plaintiff’s claims. See Schooling, 63 Fed.
Cl. at 208. And so, this Court must dismiss an action when the issues in dispute are no longer

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live and when plaintiff lacks a legally cognizable interest in the outcome. Davis, 440 U.S. at
631.
In this case, the parties disputed whether plaintiff has received all of the relief that he
requested in this military pay action. The AFBCMR has granted plaintiff’s request to receive
length of service retirement pay in lieu of disability retirement pay. Def. App. at 1-7. To that
end, on January 28, 2015, the Air Force corrected plaintiff’s military records to rescind his
disability retirement. Id. at 8-10. In addition, the Air Force has issued a corrected DD Form
214, which corrects plaintiff’s retirement records. Id. at 11-19. The Air Force has also issued
a new retirement certificate. Id. at 20-21. Furthermore, since the government filed its motion
to dismiss, plaintiff has been paid the amount of retirement pay that he is due as a result of the
AFBCMR’s decision. Def. Ex. at 1.
In his response and opposition to the government’s motion to dismiss, filed on March
29, 2015, plaintiff acknowledges the correction of his military records. Pl. Opp. at 1, 4. But,
plaintiff opposes the government’s motion to dismiss because he has not yet received his
length of service retirement pay. Id. at 1, 4-5. In its reply brief, the government informs the
Court that “[o]n June 17, 2015, Mr. Shafer’s counsel informed counsel for the Government
that Mr. Shafer had been paid the amount due as a result of the AFBCMR’s decision on
remand.” Def. Reply at 2. With the receipt of his length of service retirement pay, as well as
the correction of his military records, plaintiff acknowledges that his complaint is now moot.
Pl. Opp. at 1, 4-5. And so, dismissal of his complaint is appropriate.
CONCLUSION
For the foregoing reasons, the Court GRANTS the government’s motion to dismiss.
The Clerk’s Office is directed to ENTER final judgment in favor of defendant,
DISMISSING the complaint.
Each party to bear their own costs.
IT IS SO ORDERED.
s/ Lydia Kay Griggsby
LYDIA KAY GRIGGSBY
Judge

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