BUNTIN v. USA

Filing 14

Order of Dismissal granting 9 Motion to Dismiss - Rule 12(b)(1) The Clerk is directed to enter judgment. Signed by Judge Mary Ellen Coster Williams. (dls) Copy to parties.

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No. 15-328C

(Filed: September 14, 2015)
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FREDERICK BUNTIN,

FILED
sEP

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2015

U.S. COURT OF
FEDERAL CLAIM9

Plaintiff'
v.

THE UNITED STATES,
Defendant.

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ORDER OF DISMISSAL

WILLIAMS,

Judse.

This military pay case comes before the Court on Defendant's motion to dismiss. For the
reasons stated below, Defendant's motion to dismiss is granted.

Backsround

Plaintiff is currently serving a life sentence at the Tomoka Correctional lnstitution in
Daytona Beach, Florida for several felony convictions. Id. at l. Plaintiff filed suit in this Court
on March 30,2015, seeking back pay, bonuses, and release from prison. Pl.'sNotice2'
plaintiff p19 se Frederick Buntin enlisted in the United States Air Force on January 17,
1979. Compl. i. B"caur" he was under the age of 18 at the time of enlistment, Plaintiffs
mother signld a consent form authorizing his enlistment. Id. Twenty-three days aIler
enlistment, Plaintiff was discharged from the Air Force. Id. Plaintiff claims that he did not sign
his exit papers at the time of discharge, has remained continuously enlisted in the Air Force since
January-l i, 1979, and is entitled to 36 years of back pay and the rank of either a six-star general
or..a rank by the honest assessment nearing the highest in the United States Military." ld. at2.
plaintiff also appears to allege civil rights claims, a habeas claim, a claim for unjust conviction,
and a claim of false imprisonment. Def.'s Mot. to Dismiss 5.

Discussion
Before the Court may proceed to the merits of any action, Plaintiff must first establish
subject-matter jurisdiction. See Hardie v. United States, 367 F.3d 1288, 1290 (Fed. Cir. 2004)'
The Court must dismiss the action if subject-matter jurisdiction is found to be lacking. Adair v.
United States, 497 F3d 1244, l25l (Fed. Cir. 2007). The Court assumes all factual allegations
as true, and will construe the complaint in a manner most favorable to the plaintiff when ruling
on a motion to dismiss pusuant to Rule l2(b)(1). Penninston Seed. Inc. v. Produce Exch. No.
299,4s7 F.3d 1334, 1338 (Fed. Cir.2006).

The pleadings of plq se litigants are held to "less stringent standards than formal
pfeadings drafted by lawyers." Haines v. Kerner, 40 U.S. 519, 520 (1972) (per curiam).
However, p1q se plaintiffs still bear the burden of establishing this Court's jurisdiction, and must
do so by a preponderance of the evidence. See Mvers Investieative & Sec. Servs.. Inc. v. United
States, 275 F.3d 1366, 1369 (Fed. Cir.2002); Reynolds v. Armv & Air Force Exch. Serv., 846
F.2d 746,748 (Fed. Cir. 1988); Tindle v. United States. 56 Fed. Cl. 337 ,341 (2003).
The United States is immune from suit, save by consent. See United States v. Sherwood,
312 U.S. 584, 586 (1941). This waiver of immunity, which must be strictly construed, "cannot
be implied but must be unequivocally expressed." Dep't of the Army v. Blue Fox,525U.5.255,
261, (1999); United States v. Kine, 395 U.S. 1,4 (1969).
The TuckerAct,23 U.S.C. $ la91(a)(1), provides that this Court

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 damages in cases not sounding in tort'
The Tucker Act is solely a jurisdictional statute, and a plaintiff must show that he or she is
entitled to money damages from a separate source of substantive law. Jan's Helicopter Serv..
Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir. 2008). The substantive right to
*.y du-ug"r must be based in the Constitutional provision, statute, or regulation giving rise
to the claim. See United States v. Mitchell, 463 U.S. 206,216-17 (1983) (internal citation and
quotation marks omitted) ("[T]he claimant must demonstrate that the source of substantive law
he relies upon can fairly be interpreted as mandating compensation by the Federal Govemment
for the damages sustained.").
Although Plaintiff attempts to frame his claim as one for a breach of contract, PlaintifPs
complaint should be read to invoke this court's jurisdiction based on the Military Pay Act, 37
U.S.-C. $ 204, as he is seeking back pay due to an allegedly improper discharge. A soldier's
entitlement to pay is statutory, not based in contract law. See Sonnenfeld v. United States, 62
Fed. Cl. 336, 338 (2004). The Military Pay Act grants this Court jurisdiction to hear claims
brought by "military personnel claiming damages and ancillary relief for wronqfirl discharge."
Holley v. United States , 124 F.3d 1462, 1465 (Fed. Cir. 1997) (holding that jurisdiction,is proper
irnwongful discharge suits because "[i]f the discharge was wrongful the statutory right to pay
continues.").

A claim brought under the Tucker Act must be filed within six years of the claim's first
accrual. 28 U.S.C. $ 2501 (2012). This is a jurisdictional requirement that cannot be waived.
John R. Sand & Gravel Co. v. United States,457 F.3d 1345,1354-55 (Fed. Cir. 2006). "A cause
of action cognizable in a Tucker Act suit accrues as soon as all events have occuned that are
necessary to enable the plaintiff to bring suit . . . ." Martinez v. United States, 333 F .3d 1295,
1303 (Fed. Cir. 2003). In military pay cases, the time of accrual occurs at the time of discharge.
Id. Because Plaintiffwas discharged from the Air Force in 1979, his claim for back pay, filed in
this Court in 2015, some 36 years after this claim had accrued, is time-baned.

Plaintiff also appears to allege a civil rights claim, a habeas claim, a claim of unjust
conviction, and a claim for false imprisonment. See Def.'s Mot. to Dismiss 5. However, this
Court does not have jurisdiction to hear claims brought under the Civil fughts Act, nor does it
have the authority to entertain a habeas petition. Ledford v. United States,297 F.3d 1378, 1381
(Fed. Cir. 2002); Tasbv v. United States, 91 Fed. Cl.344,347 (2010) ("This Court cannot grant a
w t of habeas comus."); Marlin v. United States, 63 Fed. Cl' 475, 476 (2005) (holding that this
Court "does not have jurisdiction to consider civil rights claims . . . because jurisdiction over
claims arising under the Civil Rights Act resides exclusively in the district courts"). This Court
also lacks jurisdiction over a claim of false imprisonment, as that claim sounds in tort. See Reid
v. United States,95 Fed. Cl.243,249 (2010).
Although this Court does possess jurisdiction to hear certain claims of unjust conviction
by federal prisoners, Plaintiff is incarcerated in a state facility. This Court does not possess
jurisdiction over claims of unjust conviction by state prisoners. See Trevino v. United States,
113 Fed. Cl.204,209 (2013).
Conclusion
Defendant's motion to dismiss is GRANTED. The clerk is directed to dismiss this
action.