WILD v. USA
Filing
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REPORTED OPINION DISMISSING CASE granting 8 Motion to Dismiss - Rule 12(b)(6); and granting 8 Motion for Judgment on the Administrative Record The Clerk's office is directed to ENTER final judgment in defendant's favor DISMISSING plaintiff's complaint, with prejudice. Signed by Judge Patricia E. Campbell-Smith. (TQ) Service on parties made.
In the United States Court of Federal Claims
No. 21-2225C
(E-Filed: September 21, 2022)
JASON H. WILD,
Plaintiff,
v.
THE UNITED STATES,
Defendant.
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Motion to Dismiss; RCFC 12(b)(6);
Failure to State a Claim; Motion for
Judgment on the Administrative
Record; RCFC 52.1; Substantial
Evidence.
William E. Cassara, Evans, GA, for plaintiff.
David M. Kerr, Trial Attorney, with whom were Brian M. Boynton, Principal Deputy
Assistant Attorney General, Patricia M. McCarthy, Director, Steven J. Gillingham,
Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, for defendant. Jahn C. Olson, Department of
the Navy, of counsel.
OPINION
CAMPBELL-SMITH, Judge.
On February 16, 2022, defendant filed a motion to dismiss count one of plaintiff’s
complaint in this case pursuant to Rule 12(b)(6) of the Rules of the United States Court of
Federal Claims (RCFC), or, in the alternative, pursuant to RCFC 52.1, and count two of
plaintiff’s complaint pursuant to RCFC 52.1. See ECF No. 8. Plaintiff filed his response
to defendant’s motion on May 23, 2022, see ECF No. 13; and defendant filed its reply in
support of its motion on June 6, 2022, see ECF No. 14. The motion is thus fully briefed
and ripe for decision. In addition to the briefing, the court has reviewed plaintiff’s
complaint, ECF No. 1, and the administrative record (AR) in this matter, ECF No. 7.
The court has considered all of the parties’ arguments and addresses the issues that
are pertinent to the court’s ruling in this opinion. For the following reasons, defendant’s
motion to dismiss and motion for judgment on the AR are GRANTED.
I.
Background
Plaintiff challenges the decision of the United States Department of the Navy
Board for the Correction of Naval Records (BCNR) that his retirement grade was
appropriate and that the amount of his debt was correct. See ECF No. 1 at 7-11; ECF No.
13 at 5-6.
After completing active duty, plaintiff was a reserve officer in the United States
Marine Corps from 2001 until his discharge in 2016. See ECF No. 1 at 2; see also ECF
No. 7-1 at 9 (BCNR decision). During that time, plaintiff was “mobilized to active duty”
in a “series of mobilizations” between 2003 and 2014. ECF No. 1 at 2. As part of those
mobilizations, plaintiff received reimbursement for his travel expenses. See id. at 3.
Those reimbursements were the subject of an audit by the Naval Audit Service (NAS),
which was then referred to the Defense Criminal Investigative Service (DCIS) for
investigation. See id. at 3, 5. In 2015, plaintiff was indicted for conspiracy to commit
wire fraud related to his travel reimbursement claims. See id. at 6-7. Plaintiff was
convicted by a jury in November 2016. See id. at 7. In response to the audit and the
referral to DCIS, the Marine Corps Reserve Finance Officer “disqualified nearly all travel
claim payments made to [plaintiff] from 2004 to 2013,” and determined that plaintiff
owed a debt of $190,676.06, which was deducted from plaintiff’s pay until he left active
duty. Id. at 6.
While the criminal case was pending, the Marine Corps “convened a Board of
Inquiry” to review the allegations against plaintiff and decide “whether the misconduct
alleged had been substantiated, and if so, at what rank [plaintiff] should be retired.” Id. at
7. Plaintiff had been appointed captain in 2000 and major in 2006, and the board
recommended that he “be retired at the rank of 1st Lieutenant,” which was his rank prior
to his promotion to captain. Id. Plaintiff was therefore place on the retired reserve list as
first lieutenant on October 1, 2016. See id. at 7-8.
Plaintiff applied to the BCNR in May 2019, “requesting that the BCNR amend his
retirement rank to Major, eliminate the debt being collected, and pay him the travel
allowances owed to him for legitimate travel expenses.” Id. at 8. In support, plaintiff
“provided a great deal of evidence that was not considered by the Board of Inquiry or the
NAS or DCIS investigators,” including a handwritten envelope that plaintiff alleges he
found “[w]hile preparing for his federal trial in late 2016,” id. at 8, and carbon copies of
handwritten checks dated from 2004 to 2006, that plaintiff alleges establish that he
“legitimately obtained” the travel reimbursement funds and they “should not be collected
from him as a debt,” id. at 8-9.
The board “reviewed [plaintiff’s] allegations of error and injustice,” and
considered fifteen exhibits, “relevant portions of [plaintiff’s] naval record, and applicable
statutes, regulations and policies.” ECF No. 7-1 at 7. The exhibits the BCNR considered
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included documents from “the office having cognizance over the subject matter
concerning financial debt,” and “the office having cognizance over the subject matter
concerning separation grade.” Id. at 10. The exhibits also included a 2012 NAS letter
referring plaintiff to Naval Criminal Investigative Service (NCIS) for investigation,
which included a detailed summary of the travel reimbursements from 2004 to 2008 that
NAS had concluded were fraudulent. See id.; see also ECF No. 7-2 at 48-65. And, the
board exhibits included misconducts reports that detailed fraudulent activity from 2004 to
2011, and a letter from the Department of Defense Inspector General. See ECF No. 7-1
at 7; ECF No. 7-2 at 73-78 (2015 and 2016 reports of misconduct, including a summary
of the findings of the Board of Inquiry); ECF No. 7-2 at 68 (letter from the Department of
Defense Inspector General summarizing the charges and referral to the United States
Attorney’s Office for the Central District of California).
The BCNR concluded, “[u]pon review and consideration of all the evidence of
record, and especially in light of the contents” of the exhibits, that corrective action was
warranted. Id. at 10. It held that “[t]he NCIS investigation found evidence that
[plaintiff] submitted illegitimate travel claims for travel conducted as early as January
2004 [when plaintiff held the rank of] Captain,” but that a portion of his outstanding debt
had been satisfied by his payment of restitution as a result of his criminal conviction, and
that a portion of his 2012 travel expenses found to be illegitimate by the NAS were, in
fact, legitimate. Id. at 11. The board thus concluded that plaintiff’s “separation grade of
First Lieutenant was appropriate,” and the board stated that it “substantially concurred
with the comments contained in the” document from the office having cognizance over
plaintiff’s separation grade, but also concluded that plaintiff’s pay account should be
credited for the restitution he had paid and for the 2012 travel expenses it found to be
legitimate. Id.
In his complaint before this court, plaintiff alleges that the BCNR “failed to
properly place [him] on the retired list in the highest grade in which he served
satisfactorily,” ECF No. 1 at 11, and “failed to properly pay [p]laintiff the allowances that
he is entitled to receive, under the Joint Federal Travel Regulations,” id. at 12.
According to plaintiff, the board made these errors “as a result of [its] failure to consider
substantial new evidence concerning alleged misconduct,” id. at 11, and “concerning
valid travel expenses,” id. at 12. Plaintiff requests in relief that this court place him “on
the Retired Reserve list at the rank of Major,” id. at 12, pursuant to 10 U.S.C. §§ 12731
and 12771, see id. at 11, and order “[p]ayment of $53,337.71 in legitimate travel
allowances that were deducted from his active duty pay,” id. at 12. Plaintiff alleges that
the court has jurisdiction to do so on the basis of the Tucker Act, 28 U.S.C. § 1491(a)(1),
the Reserve Retired Pay Statute, 10 U.S.C. §§ 12731-12741, and the Joint Travel
Regulations. See id. at 1.
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II.
Legal Standards
A.
Failure to State a Claim
When considering a motion to dismiss brought under RCFC 12(b)(6), the court
“must presume that the facts are as alleged in the complaint, and make all reasonable
inferences in favor of the plaintiff.” Cary v. United States, 552 F.3d 1373, 1376 (Fed.
Cir. 2009) (citing Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991)). It
is well-settled that a complaint should be dismissed under RCFC 12(b)(6) “when the facts
asserted by the claimant do not entitle him to a legal remedy.” Lindsay v. United States,
295 F.3d 1252, 1257 (Fed. Cir. 2002). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
B.
Judgment on the Administrative Record
When reviewing a matter pursuant to RCFC 52.1, the court “will not disturb the
decision of the [board] unless it is arbitrary, capricious, contrary to law, or unsupported
by substantial evidence.” Barnick v. United States, 591 F.3d 1372, 1377 (Fed. Cir. 2010)
(citation omitted); see also Porter v. United States, 163 F.3d 1304, 1312 (Fed. Cir. 1998)
(“When called upon to review a decision of a corrections board . . . the standard of review
is whether the decision is arbitrary, capricious, unsupported by substantial evidence, or
contrary to law.”). The court does not sit as a “super correction board,” Skinner v. United
States, 594 F.2d 824, 829 (Ct. Cl. 1979) (citation and quotation marks omitted);
therefore, when it reviews a board decision, the court does not “reweigh[ ] . . . the
evidence, but . . . determin[es] whether the conclusion being reviewed is supported by
substantial evidence,” Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir. 1983)
(emphasis in original).
“Substantial evidence is such ‘relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Strand v. United States, 951 F.3d 1347,
1351 (Fed. Cir. 2020) (quoting Consol. Edison Co. of N.Y. v. Nat’l Labor Relations Bd.,
305 U.S. 197, 229 (1938)). The court presumes that the board’s actions are valid, and
“the burden is upon the complainant to show otherwise.” Melendez Camilo v. United
States, 642 F.3d 1040, 1045 (Fed. Cir. 2011) (citation omitted). It further presumes that
the board “performed its function according to the regulations and considered all of
[plaintiff’s] records.” Id. (citations omitted).
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III.
Analysis
A.
Plaintiff Failed to State a Claim Pursuant to the Reserve Retired Pay Statute
Defendant contends that plaintiff has failed to state a claim upon which the court
can grant relief because he is not eligible for money damages under the Reserve Retired
Pay statute. See ECF No. 8 at 13-15. According to defendant, plaintiff’s claim should
therefore be dismissed as a result of both this failure and the court’s inability to grant
declaratory judgments. See id. at 14-15.
Plaintiff indeed fails to allege any facts regarding his eligibility under the Retired
Reserve Pay statute. See generally ECF No. 1. Plaintiff also admits that he is not yet
sixty years old as is required to be eligible for pay under the Reserve Retired Pay statute.
See 10 U.S.C. § 12731(f)(1) (“the eligibility age . . . is 60 years of age”); see also ECF
No. 13 at 5 (“Mr. Wild is not yet 60 years old and is not currently eligible for payment
under the retirement pay statute.”); id. at 6 (“Plaintiff is not yet 60 years old, and is
therefore not yet eligible to collect pay as a member of the Retired Reserve.”). Instead,
plaintiff argues in his response to defendant’s motion that his “claim for retirement at the
appropriate rank and cancellation of the debt [defendant] alleges to be still outstanding
are prayers for equitable relief that are tied entirely to the determination of whether the
travel payments were fraudulently obtained.” ECF No. 13 at 7. Plaintiff therefore
contends that the court should exercise ancillary jurisdiction over his claims. See id.
Defendant replies that such an exercise would be inappropriate here because “a
hypothetical money judgment on [plaintiff’s] travel-pay claim would afford him complete
relief,” and the declaratory relief he seeks “would not be necessary to provide him an
entire remedy”—the only avenue by which the court is empowered to issue a declaratory
judgment. ECF No. 14 at 2.
The court agrees with defendant that plaintiff has failed to state a claim upon
which the court can grant relief. It is well-settled that a complaint should be dismissed
under RCFC 12(b)(6) “when the facts asserted by the claimant do not entitle him to a
legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). A claim
is properly dismissed “for failure to state a claim upon which relief may be granted when
[the court] determine[s] that plaintiff[ ] could not recover under [the money-mandating]
statute.” Jan’s Helicopter Service, Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1308
(Fed. Cir. 2008). And, although the court may “grant equitable relief ancillary to claims
for monetary relief over which it has jurisdiction,” it may not do so “when [the equitable
relief] is unrelated to a claim for monetary relief pending before the court.” Nat’l Air
Traffic Controllers Ass’n v. United States, 160 F.3d 714, 716 (Fed. Cir. 1998).
Plaintiff is not eligible for pay under the Retired Reserve Pay statute because he is
not yet sixty years old and therefore may not obtain relief under that statute. See 10
U.S.C. § 12731(f)(1) (“the eligibility age . . . is 60 years of age”); ECF No. 13 at 5, 6; see
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also Lindsay, 295 F.3d at 1257; Jan’s Helicopter, 525 F.3d at 1308. Plaintiff’s claim
pursuant to the Retired Reserve Pay statute is also unrelated to his claim for travel
expenses. That claim, as defendant argues, may be addressed entirely through monetary
relief without reference to his placement on the retired reserve list. It therefore does not
fall under the court’s ancillary jurisdiction and must be dismissed. See Nat’l Air Traffic
Controllers Ass’n, 160 F.3d at 716.
B.
The BCNR’s Decision Was Not Arbitrary, Capricious, Contrary to Law, or
Unsupported by Substantial Evidence
Defendant argues that plaintiff “cannot satisfy his burden of showing that the
board erred” as to his travel expenses. ECF No. 8 at 24. According to defendant, “there
is no indication that the BCNR failed to consider” the new evidence that plaintiff
introduced in his application to the board, as plaintiff alleges. See id. at 24; see also id. at
22. Plaintiff responds that the “administrative record does not contain substantial
evidence in support of the Board’s determination that the travel payments . . . were
fraudulent.” ECF No. 13 at 8.
Specifically, plaintiff argues that the record does not contain the travel claims
themselves or the DCIS investigation, and the board “relied entirely upon the NAS
referral letter and [the Board of Inquiry’s] findings despite the fact that those documents
did not include the travel documents themselves or the material [p]laintiff provided for
the Board’s consideration.” Id. at 9. Plaintiff contends that the new evidence he
provided to the board resulted in the board’s conclusion that a portion of his 2012 travel
expenses previously found to be illegitimate were, in fact, legitimate. Id. at 9. According
to plaintiff, the new evidence he submitted with regard to his travel claims from 2004
through 2011—including the handwritten envelope that plaintiff alleges he found
“[w]hile preparing for his federal trial in late 2016,” ECF No. 1 at 8, and carbon copies of
handwritten checks dated from 2004 to 2006, along with all of the travel reimbursement
documentation from 2004 to 2011—would have supported a similar conclusion had the
board considered it, see ECF No. 13 at 9-10.
In the court’s view, the BCNR’s decision was not “arbitrary, capricious, contrary
to law, or unsupported by substantial evidence.” Barnick, 591 F.3d at 1377. The court
presumes that the board’s actions are valid, and “the burden is upon the complainant to
show otherwise.” Melendez Camilo, 642 F.3d at 1045 (citation omitted). It further
presumes that the board “performed its function according to the regulations and
considered all of [plaintiff’s] records.” Id. (citations omitted). The board stated in its
decision that it “reviewed [plaintiff’s] allegations of error and injustice,” and considered
fifteen exhibits, “relevant portions of [plaintiff’s] naval record, and applicable statutes,
regulations and policies.” ECF No. 7-1 at 7. It further stated that its conclusions were
based “[u]pon review and consideration of all the evidence of the record,” and made “in
light of the contents” of the exhibits it had before it. Id. at 10. The board reviewed a
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2012 NAS letter referring plaintiff to NCIS for investigation, which included a detailed
summary of the travel reimbursements from 2004 to 2008 that NAS had concluded were
fraudulent. See id.; see also ECF No. 7-2 at 48-65. And, the board exhibits included
misconduct reports that detailed fraudulent activity from 2004 to 2011, and a letter from
the Department of Defense Inspector General. See ECF No. 7-1 at 7; ECF No. 7-2 at 7378 (2015 and 2016 reports of misconduct, including a summary of the findings of the
Board of Inquiry); ECF No. 7-2 at 68 (letter from the Department of Defense Inspector
General summarizing the charges and referral to the United States Attorney’s Office for
the Central District of California).
Plaintiff has not presented any evidence indicating that the board’s statements
about its review of the evidence are erroneous. See ECF No. 13 at 8-10. Nor has
plaintiff pointed to any evidence that the board failed to consider his new evidence. See
id. The board relied upon the summaries of plaintiff’s fraudulent activity for the years
2004 to 2011, and reviewed plaintiff’s additional evidence for 2012—a year not covered
by the summaries. See ECF No. 7-1 at 7-11; ECF No. 7-2 at 48-65, 68, 73-78. To be
supported by substantial evidence, the board’s decision must rely on “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Strand, 951 F.3d at 1351 (citation omitted). Plaintiff does not present any authority to
support his argument that a heightened standard requiring the board to look beyond the
investigation materials it relied upon for the years prior to 2012 applies in this case. The
board’s decision, therefore, permissibly “relied entirely upon the NAS referral letter and
[the Board of Inquiry’s] findings.” ECF No. 13 at 9; see also Strand, 951 F.3d at 1351.
Without more, the court will not disturb the board’s decision and will grant defendant’s
motion for judgment on the AR.
IV.
Conclusion
Accordingly, for the foregoing reasons:
(1)
Defendant’s motion to dismiss and motion for judgment on the AR, ECF
No. 8, are GRANTED; and
(2)
The clerk’s office is directed to ENTER final judgment in defendant’s
favor DISMISSING plaintiff’s complaint, with prejudice.
IT IS SO ORDERED.
s/Patricia E. Campbell-Smith
PATRICIA E. CAMPBELL-SMITH
Judge
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