ROURKE et al v. USA

Filing 15

ORDER OF DISMISSAL: Granting 11 Motion to Dismiss - Rule 12(b)(1) and (6). The Clerk is directed to enter judgment. Signed by Senior Judge Mary Ellen Coster Williams. (ac7) Service on parties made.

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No. l8-762C
(Filed: January 9, 2019)

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JAMES ROURKE et al..
Plaintiffs,
v.

THE UNITED STATES,
Defendant.
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ORDER OF DISMISSAL

WILLIAMS, Senior Judge.
This matter comes before the Court on Defendant's motion to dismiss. For the reasons
stated below, Defendant's motion to dismiss is sranted.

Background'

Piaintiffgq se James Rourke is a resident of the state of Massachusetts and Plaintiff pro
Albert Coggeshall is a resident ofthe state of South Carolina. Plaintiffs allege that a.fter enlisting
in the United state Air Force ("Air Force") in 1977 and 1979, respectively, the Air Force breached
their enlistment contracts and subjected them to waterboarding and other enhanced interrogation
techniques at Survival, Evade, Resist and Escape ("SERE") School. compl. l. Mr. Rourke alleges
that he signed up for a position in the electronics field at enlistment, but was later assigned to a
different career as a Radio operator Maintainer and Driver C'ROMAD) and that this change
resulted in a breach of his enlistment contract. Def 's Mot. A4. Mr. Rourke makes a similar
allegation on behalf of Mr. coggeshall. see. compl. 5. It was during their tenwe as RoMADs
that Plaintiffs allege they were subject to waterboarding and othlr enlanced intenogation
techniques at SERE School. Id. at l-2, 5-6: Def.'s Mot. .A'4.
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This background is derived from plaintiffs' complaint and the appendix attached to
Defendant's motion to dismiss.

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Mr. Rourke alleges that in 1980, Senator John Glenn of Ohio, "stepped in and ended what
the Air Force was doing to me and I was awarded breach of contract." Compl. 1. Mr. Rourke
states that he was given the choice to either serve out his enlisfrnent term or leave the Air Force
and cross-train in any electronics field, but he opted to remain in the Air Force and trained in
computer maintenance. Id. at 1, 3. Mr. Rourke further alleges that Mr. Coggeshall "was beaten
and tortured and almost lost his life." Id. at 2. Mr. Rourke alleges that he and Mr. Coggeshall
"were forced into Special Ops," despite it normally being a voluntary assignment, and that their
lives have been ruined. Id. at 6.

Mr. Rourke alleges that in 2015, the Department of Veterans Affairs ("VA") diagnosed
him with Post-Traumatic Stress Disorder ('PTSD) and that he was awarded a 100% disability
rating after the VA agreed to waive the statute of limitations on his claim. Id. at 3. Mr. Rourke
alleges that the VA awarded Mr. Coggeshall a 100% disability rating for PTSD as well. Id.
Plaintiffs each seek $25,000,000 in damages stemming ftom the alleged breach oftheir enlistment
contracts. Id. at 9.
Discussion

Plaintiff has the burden of establishing subject-matler jurisdiction in this Court. See
Revnolds v. Armv & Air Force Exch. Serv.,846F.2d746,748 (Fed. Cir. 1988). The Court must
dismiss the action if it finds subject-matter jurisdiction to be lacking. Adair v. United Stales,497
F.3d 1244, 1251 (Fed. Cir.2001). The Court assumes al1 factual allegations as true, and will
construe the complaint in a manner most favorable to Plaintiff when ruling on a motion to dismiss
pusnrntto Rule 12(b)(1). Penninston Seed. Inc. v. Produce Exch. No.299,457 F.3d 1334, 1338
(Fed. Cir. 2006).

The filings ofpro se litigants are held to "'less stringent standards than formal pleadings
drafted by lawyers."' Naskar v. United States, 82 Fed. Cl. 319, 320 (2008) (quoting Haines v.
Kerner,404 U.S.519,520 (1972)). However, pp se plaintiffs still bear the burden ofestablishing
the Court's jurisdiction and must do so by a preponderance ofthe evidence. See Revnolds, 846
F.2dat748; Tindle v. United States, 56 Fed. C|.337,341 (2003).
The Tucker Act provides that this Court:
shall have jurisdiction to render j udgrnent 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. $ 1a9i(a)(1) (2012).
The Tucker Act is not money-mandating, but rather is ajurisdictional statute. United States

v. Testan, 424 U.S. 392,398 (1976). To establish jurisdiction, a plaintiff must seek money
damages under a source of substantive law. "[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."' United States v. Mitchell, 463 U.S. 206,216-17 (1983)
(quoting Testan,424 U.S. at 400); see Jan's Helicopter Serv.. Inc. v. Fed. Aviation Admin., 525
F.3d 1299,1306 (Fed. Cir. 2008) ("[A] plaintiffmust identifu a separate source ofsubstantive law
that creates the right to money damages." (intemal citation and quotation marks omitted)).

Plaintiffs allege that the Air Force breached their enlistment contracts by employing them
ROMADs rather than in their chosen fields in electronics and telecommunications. Military
enlistment agreements, however, do not give rise to a contractual relationship. Chu v. United
States,773 F.2d1226,1229 (Fed. Cir. 1985). A soldier's entitlement to pay is statutory, not based
in conffact law. See Sonnenfeld v. United States,62Fed. Cl.336,338 (2004). Thus, legislative
authority, not principles of contract law, form the basis for military personnel's right to pay.
Schism v. United States, 316 F.3d 1259,1268 (Fed. Cir. 2002); see also Bell v. United States, 366
U.S. 393, 401 (1961) ("[C]ommonJaw rules goveming private contracts have no place in the area
ofmilitary pay. A soldier's entitlement to pay is dependent upon statutory right."). As such, this
Court does not have the authority to grant Plaintiffs damages based upon an alleged breach oftheir
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enlistment contracts.
Even if this Court could adjudicate Plaintiffs' claims, their complaint would be untimely.
A claim brought under the Tucker Act must be filed within six years ofthe claim's first accrual.
28 U.S.C. $ 2501 (2012); see John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 136
(2008); Martinez v. United States, 333 F.3d 1295,1304 (Fed. Cir. 2003) ("If the plaintiffdoes not
file suit within the six-year limitation period of 28 U.S.C. $ 2501, the plaintiff loses all rights to
sue for the loss of pay stemming from the challenged discharge."). This is a jurisdictional
requirement that cannot be waived, as it is a prerequisite for the waiver of sovereign immunity in
suits against the United States for money damages. John R. Sand & Gravel Co., 552 U.S. at 13334. Mr. Rourke enlisted inthe Air Force in 1977, and alleges that in 1980, his enlistment contract
was breached. Mr. Coggeshall enlisted in the Air Force in 1979, and his term of enlistment ended
in 1983. Plaintiffs were thus aware of the facts underlying their alleged claims no later than 1983.
Plaintiffs' complaint, filed in this Court in 2018, well over 30 years after their claims accrued,
respectively, is therefore time-barred.

Conclusion
Defendant's motion to dismiss is GRANTED. Plaintiffs' motion for referral to altemative
dispute resolution is denied as moot. The Clerk is directed to dismiss this action.