McCarthy v. Del Toro

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DR. JOHN DANIEL MCCARTHY,

Plaintiff,

vs. Case No. 3:18-cv-1213-MMH-LLL

CARLOS DEL TORO, Secretary of

the Navy,

Defendant.

/

O R D E R

THIS CAUSE is before the Court on the Motion to Dismiss Plaintiff’s

Second Amended Complaint (Doc. 110; Motion), filed by Defendant Carlos Del

Toro, Secretary of the Navy (the Secretary), on May 10, 2022. Plaintiff Dr. John

Daniel McCarthy filed a response in opposition to the Motion. See Response in

Opposition to Motion to Dismiss Second Amended Complaint (Doc. 113;

Response), filed May 31, 2022. With leave of the Court, the Secretary filed a

reply, and McCarthy filed a sur-reply. See Defendant’s Reply in Support of

Motion to Dismiss Second Amended Complaint (Doc. 116; Reply), filed June 15,

2022; Plaintiff’s Sur-Reply in Support of Opposition to Motion to Dismiss

Second Amended Complaint (Doc. 117; Sur-Reply), filed June 30, 2022.

Accordingly, this matter is ripe for review.

I. Background1

Between 2005 and 2011, McCarthy served as an active-duty officer in the

United States Navy. See Second Amended Complaint for Declaratory,

Injunctive, and Mandamus Relief (Doc. 105; Second Amended Complaint) ¶ 6.

Later, in 2013, McCarthy signed a contract, in which the Navy agreed to finance

the cost of McCarthy’s medical school education. See id. ¶ 28; Second Amended

Complaint, Ex. C (Doc. 105-3; Service Agreement) at 2–4. In the Service

Agreement, McCarthy promised to serve as an ensign in the Navy Reserve while

he was in medical school. Second Amended Complaint ¶ 63; Service Agreement

at 2. McCarthy also agreed to serve four more years as an active-duty officer

after graduating from medical school (Service Obligation). Service Agreement

at 4. The Service Agreement included a provision requiring McCarthy to repay

the scholarship money paid by the United States for his education if he did not

perform the Service Obligation because of his own misconduct. Id.

In the Service Agreement, McCarthy promised to “take and pass” parts I

and II of the Comprehensive Osteopathic Medical Licensing Examination.

Service Agreement at 6. The Service Agreement provided that “[a] second time

failure of the examination or clinical skills examination may result in loss of

1 In considering the Motion, which asserts a facial challenge to the Court’s jurisdiction,

the Court must accept all factual allegations in the Second Amended Complaint as true.

Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990). As such, the facts recited here are

drawn from the Second Amended Complaint and its exhibits and may well differ from those

that ultimately can be proved.

scholarship eligibility.” Id. McCarthy failed his clinical skills examination

twice but passed it on the third attempt. See Second Amended Complaint ¶¶

102, 112; Second Amended Complaint, Ex. ppp (Doc. 105-68; BCNR Decision)

at 5–6. In response to McCarthy’s failure to pass the clinical skills examination

in his first two attempts, the Navy removed him from the Armed Forces Health

Professions Scholarship Program (Program) and honorably discharged him

from the Navy Reserve on June 2, 2017. See Second Amended Complaint ¶¶

126–27; Second Amended Complaint, Ex. ii (Doc. 105-35). Two days later, on

June 4, 2017, McCarthy graduated on time from medical school. See Second

Amended Complaint ¶ 131. In July 2018, the Navy notified McCarthy that it

would seek to recoup the funds that it had paid to cover his medical school

expenses. See id. ¶ 140. In response to the Navy’s actions, McCarthy submitted

a petition to the Board for Correction of Naval Records (BCNR). See id. ¶ 169.

In his September 13, 2018 petition, McCarthy asked the BCNR to find that he

was wrongfully removed from the Program, was illegally discharged from the

Navy, is not in debt to the Navy, and suffered numerous financial and

professional injuries because of the Navy’s actions. Id. ¶ 170; Second Amended

Complaint, Ex. ss (Doc. 105-45).

On December 19, 2020, the BCNR issued a decision in which it

recommended a resolution of McCarthy’s petition to the Secretary. See

generally BCNR Decision. The BCNR found that McCarthy was discharged

from the Navy without the process to which he was due. Id. at 8. In addition,

the BCNR concluded that the recoupment action was unjust because a valid

discharge from the Navy is a prerequisite for recouping the scholarship funds.

See id. at 8–9. With regard to McCarthy’s removal from the Program, the full

BCNR found that the Secretary had the legal authority to remove McCarthy

from the Program. See id. at 9–10. However, the members of the BCNR

disagreed about whether removing McCarthy from the Program was unjust.

See id. at 10–11. The majority of the BCNR concluded that McCarthy’s removal

from the Program was unjust, but the minority found that the removal was not

unjust because McCarthy failed to pass the clinical skills examination within

his first two attempts. Id.

The full BCNR recommended voiding McCarthy’s discharge and giving

him constructive service credit as an inactive commissioned naval officer from

the date of his improper discharge until the date of his reinstatement. Id. at 8,

11. The BCNR also recommended that the recoupment action be cancelled

without prejudice to later reinstatement if appropriate. Id. at 11. Finally, the

BCNR recommended returning McCarthy’s case to the relevant command to

determine whether the Navy should invoke the Service Obligation. Id. at 11–

12. On February 10, 2021, the Secretary adopted the BCNR’s unanimous

recommendations and findings and approved the minority’s conclusion that

McCarthy’s removal from the Program was not unjust. Id. at 13–14.

McCarthy initiated this action on October 12, 2018, by filing a Complaint

(Doc. 1) for declaratory relief. On January 10, 2020, McCarthy filed an

Amended Complaint for Declaratory Judgment (Doc. 51; Amended Complaint).

Given the then-ongoing BCNR proceedings, the Court stayed the action on April

13, 2020. See Order (Doc. 65). After the BCNR issued its decision, the Court

reopened the case on July 23, 2021. See Order (Doc. 82). McCarthy then moved

for partial summary judgment. Motion for Partial Summary Judgment (Doc.

83), filed July 30, 2021. On February 23, 2022, the Court held a hearing at

which, with the agreement of counsel, it denied without prejudice the motion

for partial summary judgment and granted McCarthy leave to file a second

amended complaint. See Clerk’s Minutes (Doc. 102).

McCarthy filed his Second Amended Complaint on March 25, 2022. In

his first five counts, McCarthy seeks declaratory judgments. In Count I,

McCarthy asks the Court to “declare that [the Secretary] wrongfully and

unlawfully dropped Dr. McCarthy from [the Program] notwithstanding Dr.

McCarthy’s successful graduation from medical school and completion of all

requirements of the [ ] Program.” Second Amended Complaint ¶ 250. In Count

II, McCarthy requests that the Court “declare that [the Secretary] wrongfully

and unlawfully separated Dr. McCarthy from the United States Navy without

providing due process requirements.” Id. ¶ 266. In Count III, McCarthy seeks

a declaration that he “is entitled to application of the constructive service

doctrine, providing for full back pay, allowances, automatic promotion to the

grade of O-3 (which would have occurred but for the Navy’s illegal discharge),

and other benefits of service including active-duty credits for retirement

purposes.” Id. ¶ 274. In Count IV, McCarthy asks the Court to declare that the

Secretary “wrongfully and unlawfully violated the Navy’s own regulation

regarding due process discovery rights.” Id. ¶ 278. And, in Count V, McCarthy

asserts that the Court should declare that the Secretary “unlawfully attempted

to recoup the full cost, with interest and penalties, of the [Program]

notwithstanding Dr. McCarthy’s aforementioned unlawful removal from [the

Program] and unlawful involuntary discharge from the Navy.” Id. ¶ 286.

In Count VI, McCarthy asserts a claim under the Administrative

Procedure Act (APA), 5 U.S.C. § 706, and asks the Court to “hold and declare

[the Secretary’s] actions unlawful and set them aside.” Second Amended

Complaint ¶ 290. In Count VII and Count VIII, McCarthy alleges that the

Secretary has unreasonably failed “to issue a DD-214 evidencing Dr.

McCarthy’s correct active status credit;” “to issue sufficient notice of a ‘with

prejudice’ revocation of the recoupment action;” and “to apply the constructive

service doctrine, providing for full back pay, allowances, automatic promotion

to the grade of O-3 (which would have occurred but for the Navy’s illegal

discharge), and other benefits of service including active-duty credits for

retirement purposes.” Id. ¶¶ 296–98, 307–09. Therefore, in Count VII,

pursuant to the APA, McCarthy asks the Court to order the Secretary to

perform these actions. Id. ¶ 302. And, in Count VIII, McCarthy makes the

same request pursuant to the mandamus statute, 28 U.S.C. § 1361. Second

Amended Complaint ¶ 313. In Count IX, McCarthy seeks attorney’s fees under

the Equal Access to Justice Act. Id. ¶¶ 315–16.

On May 10, 2022, the Secretary moved to dismiss the Second Amended

Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil

Procedure (Rule(s)). In the Motion, the Secretary raises several arguments in

support of his request to dismiss the Second Amended Complaint. See Motion

at 1, 9–10. Upon review of the parties’ briefing, the Court finds that it needs to

address only the Secretary’s facial challenge to subject matter jurisdiction.

II. Standard of Review

Federal courts are courts of limited jurisdiction “‘empowered to hear only

those cases within the judicial power of the United States as defined by Article

III of the Constitution,’ and which have been entrusted to them by a

jurisdictional grant authorized by Congress.” Univ. of S. Ala. v. Am. Tobacco

Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor v. Appleton, 30 F.3d

1365, 1367 (11th Cir. 1994)). Indeed, jurisdiction is the power of the Court to

declare the law. Id. at 410. “When a federal court acts outside its statutory

subject-matter jurisdiction, it violates the fundamental constitutional precept

of limited federal power.” Id. at 409 (internal quotation omitted). Such action

offends the “principles of separation of powers.” Id. at 410 (quoting Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)). As such, “[i]f the court

determines at any time that it lacks subject-matter jurisdiction, it must

dismiss” the claim. See Rule 12(h)(3); see also Univ. of S. Ala., 168 F.3d at 410

(“Simply put, once a federal court determines that it is without subject matter

jurisdiction, the court is powerless to continue.”). The jurisdiction of the federal

court may be attacked facially or factually. Morrison v. Amway Corp., 323 F.3d

920, 924 n.5 (11th Cir. 2003). In a facial challenge, a court assumes the

allegations in the complaint are true and determines whether the complaint

sufficiently alleges a basis for subject matter jurisdiction. Lawrence v. Dunbar,

919 F.2d 1525, 1529 (11th Cir. 1990).

III. Discussion

Having reviewed the Second Amended Complaint, the parties’ briefing,

and the applicable law, the Court concludes that this action is due to be

dismissed without prejudice for lack of subject matter jurisdiction.

A. Summary of the Relevant Arguments

In the Motion, the Secretary argues that the Court does not have

jurisdiction over McCarthy’s claims because McCarthy has failed to identify a

waiver of the United States’ sovereign immunity. See Motion at 10–20. The

Secretary contends that McCarthy cannot rely on the waiver of sovereign

immunity in the APA because he seeks money damages in the form of back pay.

See id. at 11–13. According to the Secretary, the “essence” of McCarthy’s suit

is to obtain money from the United States, even though McCarthy purports to

seek declaratory, injunctive, and mandamus relief. Id. at 13–16; Reply at 5–8.

The Secretary also maintains that McCarthy’s claims fall outside of the APA’s

waiver of sovereign immunity because an adequate remedy exists in the Court

of Federal Claims. See Motion at 16–18; Reply at 1–3.

In his Response, McCarthy asserts that the APA’s waiver of sovereign

immunity applies to his APA claims and his claims for declaratory and

injunctive relief. See Response at 14–15. McCarthy contends that the Supreme

Court’s holding in Bowen v. Massachusetts, 487 U.S. 879 (1988), determined

that the APA’s waiver of sovereign immunity applies here. See Response at 16–

17; Sur-Reply at 4–5. According to McCarthy, he does not seek money damages;

he seeks only to “effect action by the United States Navy.” Response at 16–18.

McCarthy argues that the “Court of Federal Claims lacks jurisdiction to

adjudicate” his claims concerning his allegedly improper removal from the

Program and the Navy’s recoupment of the scholarship funds. Id. at 19 n.3.

B. Applicable Law

“The United States, as sovereign, is immune from suit save as it consents

to be sued, and the terms of its consent to be sued in any court define that court’s

jurisdiction to entertain the suit.” Campbell v. United States, 962 F.2d 1579,

1581 (11th Cir. 1992) (quoting United States v. Sherwood, 312 U.S. 584, 586

(1941)). In the Tucker Act, 28 U.S.C. § 1491, and in the APA, the United States

has waived sovereign immunity for certain types of actions. “The Tucker Act

both waives sovereign immunity for, and grants the Court of Federal Claims

exclusive jurisdiction over, actions for money damages of more than $10,000.”2

Suburban Mortg. Assocs., Inc. v. U.S. Dep’t of Hous. & Urb. Dev., 480 F.3d 1116,

1121 (Fed. Cir. 2007); Keller v. Merit Sys. Prot. Bd., 679 F.2d 220, 222 (11th

Cir. 1982) (per curiam).3

In 5 U.S.C. § 702, the APA waives the United States’ sovereign immunity

for an action “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.” § 702. But, in 5 U.S.C. § 704, the

APA specifies that only “[a]gency action made reviewable by statute and final

agency action for which there is no other adequate remedy in a court are subject

to judicial review.” § 704 (emphasis added). The Eleventh Circuit Court of

Appeals has held that the provisions in § 704 limit the waiver of sovereign

immunity in § 702. See Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d

1229, 1236, 1240 (11th Cir. 2003); United States v. Simon, 609 F. App’x 1002,

2 The United States Court of Federal Claims was previously named the United States

Claims Court and is the successor to the trial division of the United States Court of Claims.

3 The related Little Tucker Act grants district courts concurrent jurisdiction over

claims against the government which seek no more than $10,000. See 28 U.S.C. § 1346(a)(2).

1007 (11th Cir. 2015) (per curiam);4 see also Bowen, 487 U.S. at 891 (noting

that the plaintiff must defeat jurisdictional arguments based on §§ 702 and 704

“in order to prevail”). Importantly, a Tucker Act claim in the Court of Federal

Claims “has been held to be an adequate remedy” for the purposes of § 704. Ala.

Rural Fire Ins. Co. v. Naylor, 530 F.2d 1221, 1230 (5th Cir. 1976);5 see Suburban

Mortg. Assocs., 480 F.3d at 1126 (“[T]he availability of an action for money

damages under the Tucker Act or Little Tucker Act is presumptively an

‘adequate remedy’ for § 704 purposes.” (quoting Telecare Corp. v. Leavitt, 409

F.3d 1345, 1349 (Fed. Cir. 2005))).

Pursuant to the APA’s waiver of sovereign immunity, district courts may

hear challenges to certain actions of the military. See Clinton v. Goldsmith, 526

U.S. 529, 539 (1999). However, “[a] money claim which can be assuaged only

by expenditure from the Treasury of the United States cannot be entertained

without a statutory grant of jurisdiction to a United States court, and dressing

it up as a review under the APA does not help at all.” Rhodes v. United States,

760 F.2d 1180, 1184 (11th Cir. 1985). Indeed, “[a] plaintiff cannot avoid the

4 The Court does not rely on unpublished opinions as binding precedent; however, they

may be cited in this Order when the Court finds them persuasive on a particular point. See

McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022); see generally Fed. R. App. P.

32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not considered binding precedent, but they

may be cited as persuasive authority.”).

5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the

Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit

handed down prior to the close of business on September 30, 1981.

jurisdictional limitations of the Tucker Act . . . by artful pleading.” Friedman

v. United States, 391 F.3d 1313, 1315 (11th Cir. 2004) (per curiam); see Consol.

Edison Co. of N.Y. v. U.S., Dep’t of Energy, 247 F.3d 1378, 1385 (Fed. Cir. 2001)

(collecting cases).

The Court of Appeals for the Federal Circuit has provided extensive

guidance for determining whether a claim falls within the scope of the Tucker

Act or the APA.6 When making this determination, a district court first must

discern whether the “true nature of a plaintiff’s claim” is a “claim for money.”

Suburban Mortg. Assocs., 480 F.3d at 1124. Then, the district court “must

determine whether the claim is excluded from APA jurisdiction by the

limitations in 5 U.S.C. §§ 702 and 704.” Id. The Federal Circuit has instructed

that, instead of analyzing whether the plaintiff seeks “money damages” within

the meaning of 5 U.S.C. § 702, “the better course” is to begin “with the question

6 Since 1988, the Federal Circuit has developed much of the case law regarding the

scope of the Tucker Act. See Suburban Mortg. Assocs., 480 F.3d at 1128. In that year,

Congress enacted a statute “providing that, when a district court order grants or denies a

motion to transfer a suit against the Government to the Court of Federal Claims, an

interlocutory appeal can be taken by either plaintiff or the Government.” Id. at 1123–24; see

28 U.S.C. § 1292(d)(4). Congress granted the Federal Circuit exclusive jurisdiction over these

interlocutory appeals “[t]o ensure uniform application of all Tucker Act issues in a single

forum.” Suburban Mortg. Assocs., 480 F.3d at 1123–24. Here, no party has moved the Court

to transfer the action to the Court of Federal Claims. Therefore, the Eleventh Circuit, not the

Federal Circuit, would have jurisdiction over any appeal from this order. But, because of the

unique role that Congress has given the Federal Circuit in determining the jurisdictional

scope of the Tucker Act, the Federal Circuit’s opinions have significant persuasive authority.

Moreover, if this Court issued a declaratory judgment or injunction relating to a monetary

claim in contravention of the Federal Circuit’s holdings about the United States’ sovereign

immunity, that judgment would be of no use to McCarthy in seeking a later money judgment

from the Court of Federal Claims. See Christopher Vill., L.P. v. United States, 360 F.3d 1319,

1333 (Fed. Cir. 2004).

raised by 5 U.S.C. § 704—is there an ‘adequate remedy’ in a court other than

the district court, that is, can the Court of Federal Claims provide an adequate

remedy under the Tucker Act for the alleged wrong?” Id. at 1124–25. The

resolution of this question “often will be dispositive.” Id. at 1125.

To resolve this question, the district court must ask (1) whether “the

jurisdictional requirements of the Tucker Act are satisfied, i.e., the claim is for

more than $10,000 and is based on a money-mandating statute, regulation, or

constitutional provision, or an express or implied contract with the

Government;” and (2) whether “the Court of Federal Claims through a money

judgment can provide an adequate remedy under the Tucker Act.” Id. at 1125–

26. The Court of Federal Claims must be able to award “full relief.” Christopher

Vill., 360 F.3d at 1333 n.6. If the Court of Federal Claims can provide full relief,

“the proper forum for resolution of the dispute is not a district court under the

APA but the Court of Federal Claims under the Tucker Act.” Suburban Mortg.

Assocs., 480 F.3d at 1126.

Similar to the APA, the mandamus statute, 28 U.S.C. § 1361, “waives, for

some purposes, the sovereign immunity of the United States.” Drake v. Panama

Canal Comm’n, 907 F.2d 532, 534 (5th Cir. 1990) (quoting McClain v. Panama

Canal Comm’n, 834 F.2d 452, 454 (5th Cir. 1987)). However, mandamus is an

extraordinary remedy available only upon a showing that the plaintiff has no

other adequate remedy. Cash v. Barnhart, 327 F.3d 1252, 1258 (11th Cir.

2003). Typically, where a statute provides for administrative or judicial review

of an agency’s actions, mandamus relief is unavailable. See Lifestar Ambulance

Serv., Inc. v. United States, 365 F.3d 1293, 1295 (11th Cir. 2004) (citing Roche

v. Evaporated Milk Ass’n, 319 U.S. 21, 27–28 (1943)).

C. Availability of Another Adequate Remedy

Applying this statutory framework, the Court finds that the United

States has not waived sovereign immunity for McCarthy’s claims in this action

because the Court of Federal Claims provides him with an adequate remedy.

The Court first notes that McCarthy seeks monetary relief. Throughout the

Second Amended Complaint, McCarthy asks the Court to declare that he is

“entitled to application of the constructive service doctrine, providing for full

back pay.” Second Amended Complaint ¶¶ 1, 12, 24, 35, 225, 262, 272, 274

(emphasis added). McCarthy also seeks “injunctive and mandamus relief

compelling . . . the Navy’s application of the constructive service doctrine,

providing for full back pay, allowances, automatic promotion to the grade of O-

3 (which would have occurred but for the Navy’s illegal discharge), and other

benefits of service.” Id. ¶¶ 3, 17–18, 25, 36, 302, 313 (emphasis added). In sum,

McCarthy has asked the Court to declare that he is entitled to back pay as an

active-duty officer in the grade O-3 (a lieutenant in the Navy) and to compel the

Navy to provide him this back pay. Granting McCarthy the relief he seeks

would settle that he is entitled to an expenditure from the United States

Treasury. See Keller, 679 F.2d at 222–23 (“The district court’s resolution of

appellee’s right to reinstatement effectively disposed of all issues concerning his

right to backpay except the amount. Hence such adjudication by the district

court substantially infringed on the Court of Claims’ exclusive jurisdiction over

appellee’s backpay claim.”). Although McCarthy frames his complaint as

seeking only declaratory and injunctive relief, he cannot avoid the limits of the

Tucker Act through artful pleading. See Rhodes, 760 F.2d at 1184; Friedman,

391 F.3d at 1315; Carter v. Seamans, 411 F.2d 767, 771 (5th Cir. 1969) (per

curiam) (“That the complaint is cast in terms of a declaratory judgment action

cannot alter the fact that what in substance is sought is a money judgment

against the United States for back pay in excess of $10,000.”).

McCarthy argues that this case is about “far more” than providing him

money. Sur-Reply at 2. While that may be true, the Court does not need to

determine what requests for relief form “the essence” of the Second Amended

Complaint because McCarthy has made an “explicit request for monetary

relief.” Schwalier v. Hagel, 734 F.3d 1218, 1221–22 (D.C. Cir. 2013)

(“Schwalier’s request for back pay, on the other hand, is unambiguously

monetary in nature, and he requested it directly from the court.”); Palacios v.

Spencer, 906 F.3d 124, 126–27 (D.C. Cir. 2018). In addition, the Court notes

that McCarthy’s subjective belief about which forms of relief are more

important cannot control the jurisdictional inquiry.7 See Wolfe v. Marsh, 846

F.2d 782, 785 (D.C. Cir. 1988) (per curiam) (“Given the need for certainty as to

jurisdiction, we cannot allow plaintiff’s subjective intent, ambiguously

expressed, to control the issue.”); Palacios v. Spencer, 267 F. Supp. 3d 1, 6

(D.D.C. 2017) (“[A] plaintiff who requests monetary damages cannot avoid the

Tucker Act by saying that he cares more about non-monetary relief.”), aff’d in

part, appeal dismissed in part, 906 F.3d 124.8 Finally, because McCarthy’s

entitlement to back pay rests on the “same factual predicate” and “essentially

the same legal bases” as his entitlement to the other requested relief, he has

presented “one claim.” Keller, 679 F.2d at 222–23. Thus, the Court concludes

that the “true nature” of McCarthy’s claim is a “claim for money.”9 Suburban

Mortg. Assocs., 480 F.3d at 1124.

7 Were the Court to consider McCarthy’s subjective intentions, the Court would give

significant weight to counsel’s repeated representations that McCarthy is trying to obtain a

judgment that he may use to recover money. See Motion Hearing (Doc. 62) at 22 (“Our

research indicated we could plead around the Tucker Act for purposes of getting a declaratory

judgment . . . . Then if they don’t do the right thing, then we go . . . and we seek a monetary

damage.”); Motion Hearing (Doc. 103) at 21 (“If we go to the Claims Court—the United States

Federal Claims Court with this judgment saying [the Navy] violated the law, from that it flows

. . . .”); id. at 22 (“Once this Court enters a ruling . . . certain things will flow from that, one of

which is the application of the constructive service doctrine . . . .”); id. at 23–24 (“I’m not asking

this Court to enter the back pay order, the number, because this Court doesn’t have the

jurisdiction, because that number is huge.” (emphasis added)).

8 The Court notes that although decisions of other district courts are not binding, they

may be cited as persuasive authority. See Stone v. First Union Corp., 371 F.3d 1305, 1310

(11th Cir. 2004) (noting that, “[a]lthough a district court would not be bound to follow any

other district court’s determination, the decision would have significant persuasive effects”).

9 Although there may be some debate about whether back pay is “money damages”

within the meaning of 5 U.S.C. § 702, see Klaskala v. U.S. Dep’t of Health & Hum. Servs., 889

Because McCarthy seeks to recover money from the United States, the

Court next considers whether a suit under the Tucker Act in the Court of

Federal Claims would offer McCarthy an adequate remedy. See id. at 1125. In

answering that question, the Court first notes that McCarthy’s claim “is for

more than $10,000 and is based on a money-mandating statute.” Id. at 1125–

26. When, as here, a plaintiff asserts a right to back pay but does not specify

the amount, courts have considered the length of time and the salary at issue

in determining whether the claim is for more than $10,000. See Keller, 679

F.2d at 222 n.4; Palacios, 267 F. Supp. 3d at 5–6. McCarthy represents that he

is entitled to four years of back pay as an active-duty lieutenant. As the

Secretary states, and McCarthy does not contradict, this amount would be far

more than $10,000. See Motion at 13 n.5. In addition, McCarthy’s claim for

back pay would be based on a money-mandating statute, the Military Pay Act,

32 U.S.C. § 204. See Strickland v. United States, 423 F.3d 1335, 1336 n.1 (Fed.

Cir. 2005). As such, the Court finds that McCarthy’s claim satisfies the

jurisdictional requirements of the Tucker Act.

The Court next considers whether “the Court of Federal Claims through

a money judgment can provide an adequate remedy” for all of McCarthy’s

F. Supp. 480, 486 n.6 (S.D. Fla. 1995), there is no debate that back pay is money. See Bowen,

487 U.S. at 900 n.31 (“The jurisdiction of the Claims Court, however, is not expressly limited

to actions for ‘money damages,’ whereas that term does define the limits of the exception to §

702.” (citation omitted)).

requests for relief. Suburban Mortg. Assocs., 480 F.3d at 1125–26. In addition

to seeking back pay, McCarthy asks the Court to declare that the following

actions were unlawful and to set them aside: McCarthy’s removal from the

Program, the Navy’s denial of written discovery, the Navy’s denial of military

benefits, the Navy’s recoupment efforts, and McCarthy’s discharge from the

Navy Reserve. See Second Amended Complaint ¶¶ 1–3. McCarthy also asks

the Court to compel the Navy to issue a DD-214 showing his correct active

service credit; issue notice of a “with prejudice” revocation of the Navy’s

recoupment action; and apply the constructive service doctrine by providing

McCarthy full back pay, allowances, promotion to the grade of O-3, and other

benefits of service including active-duty credits for retirement purposes. See id.

The Court of Federal Claims can grant adequate relief for all of these

requests. Although the Court of Federal Claims generally cannot award

equitable relief, it can grant equitable relief incidental and collateral to a money

judgment. See Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. Dep’t of

Homeland Sec., 490 F.3d 940, 943 & n.3 (Fed. Cir. 2007). The Tucker Act states,

“To provide an entire remedy and to complete the relief afforded by the

judgment, the court may, as an incident of and collateral to any such judgment,

issue orders directing restoration to office or position, placement in appropriate

duty or retirement status, and correction of applicable records . . . .” 28 U.S.C.

§ 1491(a)(2). Indeed, the Court of Federal Claims and its predecessor courts

have “ordered back pay, restoration to military office, placement in correct

retirement status, and correction of military records.” Mitchell v. United

States, 930 F.2d 893, 896 (Fed. Cir. 1991) (citations omitted). The Court of

Federal Claims also can apply the constructive service doctrine to “return

successful plaintiffs to the position that they would have occupied ‘but for’ their

illegal release from duty.” Barnick v. United States, 591 F.3d 1372, 1379 (Fed.

Cir. 2010) (quoting Dilley v. Alexander, 627 F.2d 407, 413 (D.C. Cir. 1980)).

Moreover, while the Court of Federal Claims lacks the authority to promote a

servicemember, the court can recognize a wrongfully withheld promotion by

awarding back pay as if the servicemember had been promoted. See Lewis v.

United States, 458 F.3d 1372, 1377–78, 1378 n.8 (Fed. Cir. 2006); Carter, 411

F.2d at 774 (“Carter prays for a declaration that he was promoted to the rank

of Colonel on November 24, 1967. This relief is likewise available in the Court

of Claims in the proper circumstances.”). Therefore, the Court of Federal

Claims can find that the Navy wrongfully discharged McCarthy without the

proper procedural protections and discovery, and the court can correct

McCarthy’s records to reflect four years of active-duty service as a lieutenant

with an entitlement to military benefits and retirement credits.

McCarthy argues that the Court of Federal Claims cannot grant adequate

relief for the claims about his removal from the Program and about the Navy’s

recoupment of his educational expenses. See Response at 19 n.3. However, the

Court of Federal Claims would have to resolve those issues to grant McCarthy

the back pay that he requests. If McCarthy was lawfully removed from the

Program before his graduation, there is no basis for him to recover back pay as

an active-duty lieutenant because he was an ensign in the Navy Reserve when

he was discharged. See Second Amended Complaint ¶ 63; Service Agreement

at 2. Thus, to determine that the Navy would have moved McCarthy to active-

duty status, promoted him to lieutenant, and had him serve four years, the

Court of Federal Claims would have to find that McCarthy should not have been

removed from the Program. In essence, to grant McCarthy a money judgment

of back pay, the Court of Federal Claims would have to “declare” that the Navy

wrongfully removed him from the Program. Cf. Kanemoto v. Reno, 41 F.3d 641,

645–46 (Fed. Cir. 1994) (“[T]he decision by the Court of Federal Claims would

‘declare’ the proper interpretation of the statute.”).

With regard to the Navy’s recoupment of McCarthy’s medical school

expenses, McCarthy couples his request for debt relief with his claim for back

pay, and both claims arise from the same factual predicate. If the Court of

Federal Claims determines that McCarthy is entitled to back pay because he

constructively served four years, the Navy would have no basis for seeking

recoupment. Notably, the Federal Circuit has found that the Court of Federal

Claims can provide adequate relief in some circumstances even when the court

cannot give the precise prospective relief that was requested. See Consol.

Edison, 247 F.3d at 1384–85. In Consolidated Edison, a group of utility

companies sued the United States in district court for declaratory and

injunctive relief, asserting that the Energy Policy Act of 1992 (EPACT) was

unconstitutional. Id. at 1380. Under EPACT, the government required utility

companies to pay annual assessments for decontaminating and

decommissioning nuclear facilities. Id. at 1381. In an appeal of the district

court’s denial of a motion to transfer the case to the Court of Federal Claims,

the Federal Circuit found that the APA did not waive sovereign immunity for

plaintiffs’ claims because the Court of Federal Claims “can provide an ‘adequate

remedy’ in this case within the meaning of § 704.” Id. at 1382. The Federal

Circuit concluded,

In the event of success in [their] claims before the Court of Federal

Claims, [plaintiffs] will receive a refund of all payments under

EPACT because the United States illegally exacted those funds.

In the face of such a judgment, the United States could not proceed

to assess further EPACT payments without again illegally

exacting funds. Res judicata principles would require immediate

refund of any assessment with interest.

Id. at 1384–85. Although the Court of Federal Claims could not give the

plaintiffs an “explicit grant of prospective relief,” the court could provide an

adequate remedy. Id. at 1384. In a similar way, in the face of a judgment that

McCarthy is entitled to back pay for four years of constructive active-duty

service, the Navy could not seek recoupment on the grounds that McCarthy did

not fulfill his Service Obligation. Therefore, a judgment from the Court of

Federal Claims could provide McCarthy full relief.

Because McCarthy explicitly seeks back pay and the Court of Federal

Claims could give him full relief, this case is distinguishable from cases finding

that a claim for debt relief falls under the APA instead of the Tucker Act. In

those cases, the plaintiffs were not pursuing monetary claims that were within

the jurisdiction of the Court of Federal Claims and that would necessarily

resolve the validity of the contested debt. See Gonzales & Gonzales Bonds &

Ins. Agency, 490 F.3d at 945 (finding that the Court of Federal Claims does not

have jurisdiction to hear a claim seeking only debt cancellation); Postels v.

Peters, No. CIV.A. 99-2369, 2000 WL 280018, at *5 (E.D. La. Mar. 15, 2000)

(“Nowhere in the complaint does Postels ask for monetary damages. Moreover,

the injunctive and declaratory relief he requests would not compel the

government to pay him any money from the public treasury.”); Lawrence v.

United States, 69 Fed. Cl. 550, 554 (Fed. Cl.) (“To the extent Plaintiff’s challenge

to GSA’s refusal to grant a waiver can be characterized as a claim for money

damages . . . such claim does not derive from a money-mandating statute.”),

aff’d, 206 F. App’x 993 (Fed. Cir. 2006). Unlike the plaintiffs in Gonzales &

Gonzales Bonds & Ins. Agency and Postels, McCarthy explicitly asks for an

order compelling back pay. And, unlike the plaintiff’s claim in Lawrence,

McCarthy’s monetary claim for back pay arises from a money-mandating

statute. Therefore, the Court of Federal Claims would have jurisdiction to

resolve McCarthy’s monetary claim and, in doing so, to resolve the validity of

the debt.

Finally, the Court rejects McCarthy’s assertion that the Supreme Court’s

decision in Bowen establishes that this Court has jurisdiction over his claims.

See Response at 16–17; Sur-Reply at 4–5. In Bowen, the Supreme Court held

that a district court had “jurisdiction to review a final order of the Secretary of

Health and Human Services refusing to reimburse a State for a category of

expenditures under its Medicaid program.” 487 U.S. at 882, 912. Although the

State’s request for declaratory and injunctive relief had “monetary aspects,” the

Supreme Court found that the district court could hear the suit under the APA.

Id. at 893, 912. First, the Supreme Court concluded that the State was not

asking for “money damages,” as used in 5 U.S.C. § 702, because the State sought

the very thing that the statute mandated—a grant of money. Id. at 900.

Second, the Supreme Court found that the Claims Court did not provide an

adequate remedy within the meaning of 5 U.S.C. § 704, given the specific

circumstances of the case. Id. at 901–08. The Federal Circuit has summarized

the key circumstances that led to the Supreme Court’s conclusion in Bowen:

Bowen was a dispute between two sovereigns—a state government

and the federal government—implicating federalism issues; the

dispute centered on the administration of a major federal grant,

the Medicaid program, involving enormous sums of money and

complex interactions between the governments and the

beneficiaries; at issue were the institutional arrangements

between these two governments; the governments were locked into

a fabric of long-term administration of the program; and the money

involved in the uncovered education services was a small fraction

of the total reimbursement the state received each year for its

Medicaid costs under the program. In addition, the Court’s focus

was on the statutory requirements set forth in this complex grant

program—nowhere in Bowen did the Court make reference to the

existence of any specific contract or express agreement defining

the relationship between the parties.

Suburban Mortg. Assocs., 480 F.3d at 1127.

Here, these circumstances do not exist. In contrast, McCarthy’s “case is

specifically the kind of claim for which the [Court of Federal Claims] can provide

‘special and adequate review procedures.’” Mitchell, 930 F.2d at 896 (quoting

Bowen, 487 U.S. at 900–01 n.31, 903–05 & n.39). Where a former federal

employee seeks money from the United States as well as other forms of relief

arising from the same facts as the money claim, courts have routinely held that

the entire case should be brought in the Court of Federal Claims. See Palacios,

906 F.3d at 127; Mitchell, 930 F.2d at 896; Keller, 679 F.2d at 222–23; Carter,

411 F.2d at 771. Thus, the Court finds that McCarthy’s reliance on Bowen is

unavailing.

Because the Court of Federal Claims can provide an adequate remedy to

McCarthy, the APA’s waiver of sovereign immunity does not extend to his

claims.10 See 5 U.S.C. § 704. For the same reason, the mandamus statute does

not provide a waiver of sovereign immunity here. See Cash, 327 F.3d at 1258;

Carter, 411 F.2d at 773. Without a waiver of sovereign immunity, this Court

has no jurisdiction to hear McCarthy’s case. As such, the Motion is due to be

granted to the extent that the Court will dismiss this case without prejudice for

lack of subject matter jurisdiction.

IV. Conclusion

Because McCarthy has not identified a waiver of sovereign immunity that

applies to his claims, the Court does not have subject matter jurisdiction over

this action. Therefore, the Court will grant the Secretary’s Motion and dismiss

the case without prejudice for lack of jurisdiction. Accordingly, it is

ORDERED:

1. Defendant’s Motion to Dismiss Plaintiff’s Second Amended

Complaint (Doc. 110) is GRANTED, in part, and DENIED, in

part.

A. The Motion is GRANTED to the extent that this action is

DISMISSED without prejudice for lack of jurisdiction.

B. In all other respects, the Motion is DENIED.

10 In determining that the Court of Federal Claims provides an adequate remedy for

McCarthy’s challenge to the Secretary’s actions, the Court states no opinion about whether

McCarthy will ultimately succeed. See Mitchell, 930 F.2d at 897 (“Most important, the

question posed by APA Section 704 is whether the Claims Court offers adequate remedies, not

whether Mitchell will be entitled to receive those remedies.”).

2. The Clerk of the Court is directed to terminate any pending motions

and deadlines and close the case.

DONE AND ORDERED in Jacksonville, Florida, on March 1, 2023.

MARCIA MORALES HOWARD

United States District Judge

1¢e30

Copies to:

Counsel of Record

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