Otis v. United States

In the United States Court of Federal Claims

No. 24-908

(Filed: March 21, 2025)

*************************************

RYAN J. OTIS, *

*

Plaintiff, *

*

v. *

*

THE UNITED STATES, *

*

Defendant. *

*************************************

Robert C. Moscati, The Moscati Law Firm, Reston, VA, counsel for Plaintiff.

Reta E. Bezak, U.S. Department of Justice, Civil Division, Washington, DC, counsel for

Defendant. With whom was Major Nicole A. Oberjuerge, U.S. Army Legal Services Agency,

Fort Belvoir, VA, of counsel.

OPINION AND ORDER

DIETZ, Judge.

Ryan J. Otis, a former Second Lieutenant in the United States Army, claims he was

wrongfully discharged. He seeks reinstatement to active-duty status, correction of his military

records, and compensation. The government moves to dismiss his complaint under Rule 12(b)(6)

of the Rules of the United States Court of Federal Claims (“RCFC”), arguing that Mr. Otis

waived his wrongful discharge claim by not raising it to the Army Board for Correction of

Military Records (“ABCMR”). In addition, the government moves to dismiss several of Mr.

Otis’s requests for relief under RCFC 12(b)(1) and RCFC 12(b)(6). For the reasons set forth

below, the Court finds that Mr. Otis did not waive his right to bring a wrongful discharge claim

in this Court. However, the Court also finds that Mr. Otis either failed to state a claim for, or that

this Court lacks jurisdiction over, several of his requests for relief. Accordingly, the Court

GRANTS-IN-PART and DENIES-IN-PART the government’s motion to dismiss.

I. BACKGROUND

Mr. Otis served as a commissioned officer on active duty in the Army from September 8,

2018, to February 14, 2022. Compl. [ECF 1] ¶ 4. On October 17, 2019, a female Army officer

reported that Mr. Otis sexually assaulted her on August 30, 2019. Id. ¶ 6. Following an

investigation by the Army Criminal Investigation Command, the Army charged Mr. Otis with

rape and aggravated assault in violation of the Uniform Code of Military Justice (“UCMJ”). Id. ¶

8. Although the case was set for trial, id. ¶ 8, Mr. Otis’s accuser declined to testify, id. ¶ 9. On

July 23, 2020, the Army dismissed the court-martial against Mr. Otis and issued him a General

Officer Memorandum of Reprimand (“GOMOR”) for “sexually assaulting and strangling” the

female officer in violation of the UCMJ. Id. ¶¶ 10-11. The Army placed Mr. Otis’s GOMOR in

his Army Military Human Resource Record (“AMHRR”) on September 23, 2020. Id. ¶ 12.

On October 22, 2020, the Army initiated an administrative elimination action against Mr.

Otis based on the “misconduct” allegation (the alleged rape and sexual assault) and the

“derogatory information” from the GOMOR contained in his AMHRR. [ECF 1] ¶ 13. The Army

appointed a Board of Inquiry (“BOI”) to determine whether the allegations were proven by a

preponderance of the evidence and to make a recommendation as to whether Mr. Otis should be

retained or eliminated from the Army and, if eliminated, the appropriate characterization of his

discharge. Id. ¶ 14. The BOI convened on March 8th and 9th of 2021 and determined that the

allegation of misconduct—the alleged rape and aggravated assault—were unsubstantiated. Id.

¶ 16. However, it also determined that the derogatory information in Mr. Otis’s AMHRR was

“founded.” Id. The BOI recommended that Mr. Otis be discharged with a characterization of

“General Discharge (Under Honorable Conditions).” Id. The BOI further recommended that “the

GOMOR be reviewed by higher authorities since the BOI unanimously found that the allegations

underlying the GOMOR - the only ‘derogatory information’ existing which could possibly

support a discharge recommendation - had not been substantiated.” Id.

On May 24, 2021, the Army concluded its legal review of the BOI proceedings and found

“that there was a ‘legal objection’ to the BOI and Officer Elimination proceedings.” [ECF 1] ¶

17. The legal objection consisted of two substantial errors: (1) the Army’s failure to introduce

Mr. Otis’s entire AMHRR, “which the legal review concluded had a material, adverse effect on

Mr. Otis’s substantial rights under Army regulations and the Due Process Clause [of the United

States Constitution],” and (2) “the BOI’s finding of there being derogatory information in [Mr.]

Otis’s AMHRR sufficient to warrant separation when the only such information was the mere

existence of a GOMOR – a GOMOR which exclusively relied upon the same allegations that the

Board concluded were unsubstantiated.” Id. (first alteration in original). The legal review

concluded “that it was legal error for the BOI to find the existence of only an unsubstantiated

GOMOR, without other deficiencies in [Mr.] Otis’s record, to be sufficient ‘derogatory

information’ to warrant the officer’s elimination under the applicable legal standards.” Id.

Despite these conclusions, on June 17, 2021, “the BOI Convening Authority approved

the BOI’s findings and recommendation.” [ECF 1] ¶ 18. Thereafter, Mr. Otis made numerous

unsuccessful attempts to appeal the Army’s adverse actions, including filing the following:

(a) an Article 138 Complaint; (b) a [Department of Defense (“DoD”)

Inspector General] Complaint; (c) a GOMOR removal petition; (d)

a Congressional inquiry; (e) a “Titling” petition to the United States

Army Criminal Investigation Command; 1 (f) an Application for

Correction of Military Record to the Army Review Boards Agency;

1

DoD Instruction 5505.07 “[e]stablishes policy, assigns responsibilities, and prescribes uniform standard procedures

for titling persons . . . in DoD law enforcement activity (LEA) reports and indexing them in the Defense Central Index

of Investigations (DCII).” DoDI 5505.07. “Titling” refers to the placement of “the name and identifying information

of a person, corporation, or other legal entity in the title block of a DoD LEA report.” Id. at § G.2.

2

and (g) a petition to the Army Board for Correction of Military

Records [(“ABCMR”)].

Id. ¶ 19 (footnote added). On January 18, 2022, the Army Review Boards Agency determined

that Mr. Otis “would be eliminated from the Army with a General (Under Honorable Conditions)

discharge, based on ‘derogatory information.’” [ECF 1] ¶ 20. Approximately one month later, on

February 14, 2022, the Army issued him a DD-214, Certificate of Release or Discharge from

Active Duty, “with a characterization of service of ‘Under Honorable Conditions (General)’ and

a Separation Code of ‘JNC,’” which prevents re-entry into the military. Id. ¶ 21.

On January 23, 2024, following a remand from the United States District Court for the

Eastern District of Virginia (“EDVA”), the ABCMR found that Mr. Otis’s GOMOR “failed to

meet legal standards of review resulting in the grievous injustice and harm complained of.” [ECF

1] ¶ 22 (emphasis omitted). The ABCMR therefore ordered that the GOMOR be removed from

his AMHRR, id., and, on February 27, 2024, “Army Human Resources Command notified [Mr.]

Otis that his GOMOR had been removed from his AMHRR.” Id. ¶ 23.

On April 7, 2023, Mr. Otis filed a wrongful discharge complaint in this Court. See Otis v.

United States, No. 23-483 (Fed. Cl.) [ECF 1]. On January 8, 2024, the Court dismissed that

complaint for lack of subject-matter jurisdiction under 28 U.S.C. § 1500 because Mr. Otis had a

pending case in the EDVA when he filed his complaint in this Court. Otis v. United States, 168

Fed. Cl. 739, 740-41 (2024) (“Section 1500 . . . restricts the jurisdiction of this Court when

related actions against the United States are pending in other courts.”). 2 On June 13, 2024, Mr.

Otis refiled his wrongful discharge complaint in this Court. [ECF 1]. In his complaint, Mr. Otis

states that “[t]he ABCMR’s findings and recommendations in its January 23, 2024[,] Record of

Proceedings have conclusively established the unlawfulness of [his] elimination and discharge”

and that “[w]ith the removal of his GOMOR – the only basis for the Board of Inquiry’s

recommendation for his elimination from the Army – [his] resultant injuries demand

compensation.” [ECF 1] ¶ 28. He seeks an order from the Court directing, inter alia, the

government “to restore [him] to an active-duty status in the Army in the grade, date of rank, and

with the years of service he otherwise would have attained and been entitled to absent the

Accuser’s allegations and all actions undertaken by the Army related thereto” and “to fully

compensate [him] for all pay and allowances he otherwise would have earned from the date of

his discharge to the date of his reinstatement on active-duty.” Id. ¶ 29.

On August 12, 2024, the government moved to dismiss the complaint for lack of subject-

matter jurisdiction pursuant to RCFC 12(b)(1) and for failure to state a claim pursuant to RCFC

12(b)(6). Def.’s Mot. to Dismiss [ECF 6]. The government’s motion to dismiss is fully briefed,

and the Court determined that oral argument is not necessary.

2

Mr. Otis filed his complaint in the EDVA on February 13, 2023. Otis, 168 Fed. Cl. at 741. The EDVA dismissed his

complaint on June 8, 2023, following the government's consent motion to remand Mr. Otis's case to the ABCMR for

corrective action. Id. at 742.

3

II. STANDARDS OF REVIEW

When the government moves to dismiss a complaint for lack of subject-matter

jurisdiction under Rule 12(b)(1), the plaintiff bears the burden of establishing subject-matter

jurisdiction by a preponderance of the evidence. Tolliver Grp., Inc. v. United States, 20 F.4th

771, 775 (Fed. Cir. 2021). When considering such a motion, “this Court must assume that all

undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the

non-movant’s favor.” Cal. Dep’t of Water Res. v. United States, 128 Fed. Cl. 603, 609 (2016)

(citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). However, the “court accepts only

uncontroverted factual allegations as true for purposes of the motion.” U.S. Enrichment Corp. v.

United States, 121 Fed. Cl. 532, 534 (2015) (quoting Banks v. United States, 741 F.3d 1268,

1277 (Fed. Cir. 2014)). “[D]isputed facts outside the pleadings are subject to the fact finding of

the court.” Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1355 (Fed. Cir. 2011) (citing

Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-1584 (Fed. Cir. 1993)). “Whether the

court possesses jurisdiction to decide the merits of a case is a threshold matter.” Sandstone

Assocs., Inc. v. United States, 146 Fed. Cl. 109, 112 (2019) (citing Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 94-95 (1998)). Thus, if the Court determines that it lacks subject-

matter jurisdiction, it must dismiss the case. RCFC 12(h)(3); Arbaugh v. Y & H Corp., 546 U.S.

500, 514 (2006).

To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, “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. v. Twombly,

550 U.S. 544, 570 (2007)). However, “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.” Id.; see also Twombly,

550 U.S. at 555 (requiring a pleading to offer “more than labels and conclusions”). “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). Rather, a plaintiff must plead

sufficient factual matter to “raise a right to relief above the speculative level . . . .” Twombly, 550

U.S. at 555. Sufficient factual matter requires “only enough facts to state a claim to relief that is

plausible on its face.” Id. at 570. “A claim is plausible on its face when ‘the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.’” TrinCo Inv. Co. v. United States, 722 F.3d 1375, 1380 (Fed. Cir.

2013) (quoting Iqbal, 556 U.S. at 678).

III. DISCUSSION

The government makes two arguments in its motion to dismiss. First, the government

argues that Mr. Otis’s complaint should be dismissed for failure to state a claim under RCFC

12(b)(6) because he waived his claim that his separation was unlawful “by failing to present it to

the [ABCMR] when he had the opportunity.” [ECF 6] at 6. 3 Second, the government argues that,

even if Mr. Otis did not waive his unlawful separation claim, he is not entitled to the majority of

the relief that he seeks because it “is unavailable in a Military Pay Act claim and otherwise falls

3

All page numbers in the parties’ briefs refer to the page numbers generated by the CM/ECF system.

4

outside the jurisdiction of this Court to grant.” Id. For the reasons below, the Court finds that Mr.

Otis did not waive his wrongful discharge claim, but that Mr. Otis has failed to state a claim for,

or this Court lacks jurisdiction over, several of his requests for relief.

A. Mr. Otis’s Wrongful Discharge Claim

The government argues that Mr. Otis waived his wrongful discharge claim by failing to

raise it with the ABCMR. [ECF 6] at 12. The government states that Mr. Otis “never argued to

the board that the alleged errors (namely, the existence of the GOMOR and the investigation

report identifying him as the subject) rendered his separation unlawful.” Id. According to the

government, “[b]ecause he chose to seek review by the board but did not raise the arguments he

now presents, he has waived his claims before this Court.” Id. Mr. Otis counters that “until the

ABCMR found the [GOMOR] that served as the sole basis of [Mr.] Otis’s removal invalid, and

therefore ordered it removed from his record, [he] had no basis to claim that his separation from

the service was legally flawed.” Pl.’s Resp. [ECF 9] at 4. “With that GOMOR no longer in

existence,” Mr. Otis contends that “only now does [he] have a Tucker and Military Pay Act

claim” against the government and that “[he] need not go back to the ABCMR first to in order to

bring a claim here.” Id. (emphasis omitted).

“Congress has given the military secretaries the power to correct military records using

civilian Corrections Boards.” Richey v. United States, 322 F.3d 1317, 1323 (Fed. Cir. 2003)

(citing 10 U.S.C. § 1552(a)(1) (2000)). Under the corrections board statute, “[t]he Secretary of a

military department may correct any military record of the Secretary’s department when the

Secretary considers it necessary to correct an error or remove an injustice.” 10 U.S.C.

§ 1552(a)(1). An aggrieved service member, however, need not exhaust his administrative

remedies by appealing to a military review board. Martinez v. United States, 333 F.3d 1295,

1304 (Fed. Cir. 2003) (noting that “correction boards have been regarded as a permissive

administrative remedy and that an application to a correction board is therefore not a mandatory

prerequisite to filing a Tucker Act suit challenging the discharge”); accord Klingenschmitt v.

United States, 119 Fed. Cl. 163, 182 (2014) (“It is well established that military correction

boards provide a permissive administrative remedy for wrongful discharge and that an

application to a correction board is therefore not a mandatory prerequisite to filing a Tucker Act

suit challenging the discharge.”) (internal quotation marks omitted), aff’d, 623 F. App’x 1013

(Fed. Cir. 2015). “An officer seeking correction of military records may either apply as an initial

matter to a Corrections Board, or file suit under the Tucker Act in the Court of Federal Claims.”

Richey, 322 F.3d at 1323 (citing Heisig v. United States, 719 F.2d 1153, 1155 (Fed. Cir. 1983)).

If, however, the service member first seeks relief from a corrections board, he must raise all

issues or he runs the risk that he will be precluded from raising them before this Court on the

grounds of waiver. Spehr v. United States, 51 Fed. Cl. 69, 85 (2001), aff’d, 49 F. App’x 303

(Fed. Cir. 2002) (“A claimant’s failure to raise an issue during [A]BCMR proceedings

constitutes a waiver of the issue in this court.”) (citing Walden v. United States, 22 Cl. Ct. 532,

538 (1991) and Doyle v. United States, 599 F.2d 984, 1000 (Ct. Cl.), amended sub nom. In re

Doyle, 609 F.2d 990 (Ct. Cl. 1979), superseded on other grounds by statute, 10 U.S.C. § 628

(1994)). “Simple fairness to those who are engaged in the tasks of administration, and to

litigants, requires as a general rule that courts should not topple over administrative decisions

5

unless the administrative body not only has erred but has erred against objection made at the time

appropriate under its practice.” United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 37

(1952).

Mr. Otis did not waive his right to bring a wrongful discharge claim in this Court by

failing to raise it in the prior ABCMR proceedings. The waiver rule aptly applies where a service

member appeals an unfavorable correction board decision to the court and raises arguments that

were not previously raised for consideration by the board. See Klingenschmitt, 119 Fed. Cl. at

183 (explaining that “if a party elects to bring a claim before an administrative agency, it must

give that agency the opportunity to resolve all issues relevant to the adjudication of that claim,

and it cannot save some arguments for an initial airing before the court on review of the agency’s

decision”). Here, Mr. Otis is not attempting to “topple over” the ABCMR’s decision by raising

new arguments. L. A. Tucker Truck Lines, Inc., 344 U.S. at 37. Mr. Otis’s petition to the

ABCMR did not relate to the lawfulness of his discharge. 4 See Klingenschmitt, 119 Fed. Cl. at

183 (stating that “the full resolution of the claims presented to the Board . . . did not require the

Board to consider in any way the circumstances under which [the plaintiff] was separated from

the service”). Moreover, the ABCMR proceedings resulted in a favorable outcome for Mr.

Otis—removal of the GOMOR from his AMHRR—so he has no reason to object to it. Because

Mr. Otis’s claim in this Court is not an appeal of a prior ABCMR decision, there is no waiver

issue. In his complaint, Mr. Otis alleges that his discharge was unlawful. [ECF 1] ¶ 28. Thus,

with respect to this claim, Mr. Otis is not required to exhaust his administrative remedies by first

appealing to the ABCMR. See Martinez, 333 F.3d at 1304. Instead, he may choose to first file a

petition with the ABCMR or file a complaint in this Court. Richey, 322 F.3d at 1323.

Accordingly, because Mr. Otis brings a new claim in this Court—a claim that was never before

the ABCMR—the waiver rule is inapposite.

B. Mr. Otis’s Requests for Relief

According to the government, “[e]ven if Mr. Otis had not waived his claim before this

Court and even if he were to ultimately succeed in his claim of unlawful discharge, he has not

stated a claim for the relief he seeks.” [ECF 6] at 14. The government contends that, “[w]ith the

exception of Mr. Otis’s request to be reinstated and for resulting back pay, Mr. Otis’s claims for

relief would neither be mandated by the Military Pay Act nor incident and collateral to any

judgment thereunder.” Id. Mr. Otis “concedes there are perhaps appropriate revisions to its

prayer for relief in light of the ABCMR’s most recent ruling” but suggests that such revisions are

better resolved after the Court adjudicates the government’s motion to dismiss. [ECF 9] at 5.

Further, Mr. Otis requests “that if this motion is denied, the parties be permitted to further

supplement their pleadings, and present oral argument, as to the suitability of, and authority for,

the several forms of relief sought by the Plaintiff.” Id.

4

Mr. Otis’s application to the ABCMR requested removal of the GOMOR from his AMHRR and deletion of his name

from the titling block of the Army law enforcement report documenting the investigation into his conduct. See App.

to Def.’s Mot. to Dismiss [ECF 6-1] at 2-6; 62-75. On remand from the EDVA, the ABCMR reconsidered its earlier

denial of his application and granted the requested relief. Id. at 197-215.

6

“The Tucker Act authorizes certain actions for monetary relief against the United States

to be brought in the Court of Federal Claims.” Martinez, 333 F.3d at 1302. It “does not itself

provide the substantive cause of action” and instead requires that the plaintiff identify a separate

“source of substantive law on which to base a Tucker Act suit against the United States.” Id. at

1303. The Military Pay Act (“MPA”) provides a money-mandating statute on which a plaintiff

may bring a wrongful discharge claim under the Tucker Act. See Metz v. United States, 466 F.3d

991, 998 (Fed. Cir. 2006) (stating that “the [MPA] has previously been held to be money-

mandating”). Under the MPA, the plaintiff “must allege that, because of the unlawful discharge,

the plaintiff is entitled to money in the form of the pay that the plaintiff would have received but

for the unlawful discharge.” Martinez, 333 F.3d at 1303. The United States Court of Federal

Claims “does not have general equity jurisdiction,” but, in money claims against the United

States under the MPA, “the court may issue such orders as are necessary ‘[t]o provide an entire

remedy and to complete the relief afforded by the judgment,’ including ‘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.’” Id. (alteration in

original) (citing 28 U.S.C. § 1491(a)(2)).

Mr. Otis seeks various forms of relief for his alleged wrongful discharge. Specifically, he

requests that the Court issue an order:

(a) directing Defendant to restore Plaintiff to an active-duty status

in the Army in the grade, date of rank, and with the years of service

he otherwise would have attained and been entitled to absent the

Accuser’s allegations and all actions undertaken by the Army

related thereto;

(b) directing Defendant to fully compensate Plaintiff for all pay and

allowances he otherwise would have earned from the date of his

discharge to the date of his reinstatement on active-duty;

(c) directing Defendant to correct all of Plaintiff’s military records

to remove any and all references to the Accuser’s allegations and all

actions undertaken by the Army related thereto, or remove and

destroy such records in their entirety;

(d) alternately, if the Plaintiff elects not to seek reinstatement and

continuation on active-duty, in addition to the relief requested at

paragraph 29(b), directing Defendant to compensate Plaintiff for the

pay and allowances he would have earned in a full, twenty (20) year

career, complete with the usual promotions likely over such period,

and all retired pay which then would be paid through the remainder

of Plaintiff’s lifetime, as calculated by the Court;

(e) directing Defendant to compensate the Plaintiff for all lost

income from the date of discharge to the date he is or was able to

7

secure similar, professional employment commensurate with his

education, background and experience;

(f) directing Defendant to compensate the Plaintiff for all legal costs

and expenses he has incurred defending himself from Accuser’s

allegations, the Army’s actions against him, and his attempts to seek

redress from all such actions;

(g) directing Defendant to compensate the Plaintiff for all medical

costs and expenses he has incurred related to the Accuser’s

allegations, the Army’s actions against him, and his attempts to seek

redress from all such actions;

(h) directing Defendant to compensate the Plaintiff for all harms

related to Defendant’s actions, to include, but not be limited to: (i)

personal and professional embarrassment and harm to his

reputation; (ii) Post Traumatic Stress Syndrome; and (iii)

detrimental interference in his personal relationships with family,

friends, acquaintances, and spouse; and

(i) directing Defendant to initiate an investigation into the false

accusations and actions of the Accuser, and to take all appropriate

actions under Army regulations and/or federal law commensurate

with their findings.

[ECF 1] ¶ 29(a)-(i).

The Court shares the concerns raised by the government regarding Mr. Otis’s requests for

relief. As the government concedes, see [ECF 6] at 14, if Mr. Otis succeeds in his wrongful

discharge claim, the Court has authority under the Tucker Act to void Mr. Otis’s discharge, to

reinstate him to active duty, and to afford him back pay and allowances incident to his return to

active duty. See Tippett v. United States, 28 F. App’x 942, 945 (Fed. Cir. 2011) (holding that a

service member who has been improperly and involuntarily discharged is entitled to cancellation

of his discharge, reinstatement at the same grade as of the date of discharge, correction of his

records to reflect active duty service up to the date of reinstatement, and back pay from the date

of his discharge to reinstatement). Therefore, Mr. Otis’s claims for relief in (a), (b), and (c)

generally fall within this Court’s authority to grant. [ECF 1] ¶ 29(a)-(c).

However, the Court cannot provide Mr. Otis with a promotion absent a statute or

regulation entitling Mr. Otis to such promotion as a matter of law. Melendez Camilo v. United

States, 89 Fed. Cl. 671, 680 (2009) (citing Voge v. United States, 844 F.2d 776, 782 (Fed. Cir.

1988)), aff’d, 642 F.3d 1040 (Fed. Cir. 2011); see Antonellis v. United States, 723 F.3d 1328,

1332 (Fed. Cir. 2013) (stating that “civilian courts are reluctant to second-guess decisions of the

military authorities as to promotion”). Yet, Mr. Otis’s complaint does not identify any statute,

regulation, or rule that the Army violated by failing to promote him or that otherwise provides

8

him with “a clear-cut legal entitlement” to a promotion. Conti v. United States, 168 Fed. Cl. 547,

557 (2023) (stating that for plaintiff’s claims “to be justiciable, she must identify an instruction

that the Air Force violated by failing to promote her (and that provides a justiciable standard) or

she must demonstrate that she has satisfied all the legal requirements for promotion but that the

military has refused to recognize her status, i.e., a clear-cut entitlement to promotion”), aff’d, No.

2024-1403, 2024 WL 4100410 (Fed. Cir. Sept. 6, 2024). Neither can the Court mandate that the

Army compensate Mr. Otis as though he had completed a 20-year career in the Army when he

had served less than four years as of the date of his discharge. If Mr. Otis is found to have been

improperly discharged, he may be entitled to constructive active-duty credit and related back pay

and allowances at the rank he was appointed to up until he is properly separated. Bates v. United

States, 34 Fed. Cl. 51, 53 (1995) (stating that “[t]he court may restore a service member ‘to

office or position,’ place the individual in the ‘appropriate duty or retirement status,’ and correct

‘applicable [military] records.’” (second alteration in original, internal citations omitted));

Anderson v. United States, 111 Fed. Cl. 572, 579 (2013) (stating that “[c]laims for back pay . . .

[and] allowances incident to active-duty military service are also typically within the jurisdiction

of the court when brought in a wrongful discharge suit”), aff’d sub nom. Allphin v. United States,

758 F.3d 1336 (Fed. Cir. 2014). However, he will not be entitled to compensation beyond “the

salary of the rank to which he is appointed and in which he serves,” either actively or

constructively. Smith v. Sec’y of Army, 384 F.3d 1288, 1294 (Fed. Cir. 2004); Christian v. United

States, 337 F.3d 1338, 1347 (Fed. Cir. 2003), decision modified and remanded, 60 Fed. Cl. 550

(2004) (explaining that under the constructive service doctrine, “military personnel who have

been illegally or improperly separated from service are deemed to have continued in active

service until their legal separation”). Therefore, Mr. Otis has failed to state a claim for the relief

requested in (d). [ECF 1] ¶ 29(d).

Additionally, the Court does not have jurisdiction to award damages stemming from

alleged tort claims. Cottrell v. United States, 42 Fed. Cl. 144, 149 (1998) (stating that “[i]t is well

settled that the Court of Federal Claims lacks jurisdiction over any and every kind of tort

claim”). Thus, the Court lacks jurisdiction over Mr. Otis’s requests for lost income in (e); 5 legal

costs and expenses that he incurred defending himself from his accuser’s allegations, the Army’s

actions against him, his attempts to seek redress from all such actions in (f); 6 medical costs and

expenses that he incurred related to his accuser’s allegations in (g); and compensation for harms

allegedly caused by the Army’s actions, such as embarrassment and reputational harm, post-

5

The Court views Mr. Otis’s claim for “all lost income from the date of discharge to the date he is or was able to

secure similar, professional employment commensurate with his education, background and experience” in ¶ 29(e)

of his complaint as separate from his claim for backpay and allowances under ¶ 29(b). A claim for loss of income

sounds in tort and falls outside of this Court’s jurisdiction. Cramer v. United States, No. 23-37, 2023 WL 3072541,

at *3 (Fed. Cl. 2023) (concluding that the plaintiff’s requests for compensatory damages, such as loss of income

damages, sound in tort).

6

The Court views Mr. Otis’s claim for “legal costs and expenses he has incurred defending himself from [his]

[a]ccuser’s allegations, the Army’s actions against him, and his attempts to seek redress from all such actions” in

¶ 29(f) of his complaint as separate from a request for legal fees and expenses under the Equal Access to Justice Act

(“EAJA”), 28 U.S.C. § 2412. The government concedes that the Court may consider a request for legal costs and

expenses under EAJA. [ECF 6] at 16 n.5. However, the Court does not have jurisdiction to award legal fees as

compensatory damages stemming from a tort claim. Rogers v. United States, 66 F. App’x 195, 197-98 (Fed. Cir.

2003) (affirming dismissal of claim seeking legal fees as compensatory damages).

9

traumatic stress, and interference in his personal relationships, in (h). [ECF 1] ¶ 29(e)-(h); see

Rana v. United States, 130 Fed. Cl. 629, 635 (2016) (holding that the “[p]laintiff’s claims for

compensation based on his loss of livelihood, defamation of character, and pain and suffering

sound in tort, and therefore lie outside of the jurisdiction of this Court”), aff’d, 664 F. App’x 943

(Fed. Cir. 2016). While Mr. Otis includes these claims for relief as part of his complaint seeking

compensation for his alleged wrongful discharge, they sound in tort and therefore fall outside of

this Court’s jurisdiction. See Cottrell, 42 Fed. Cl. at 149 (explaining that “[e]ven where the claim

is framed under non-tort law, the court lacks jurisdiction if the essence of the claim lies in tort”).

Lastly, with respect to Mr. Otis’s request in (i) that the Court order the Army “to initiate

an investigation into the false accusations and actions of [his] Accuser,” [ECF 1] at ¶ 29(i), this

Court does not have the authority to order such an investigation. “[L]imited equitable relief

sometimes is available in Tucker Act suits. However, that equitable relief must be ‘an incident of

and collateral to’ a money judgment. James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998)

(citing 28 U.S.C. § 1491(a)(2)). In other words, “the Court of Federal Claims has no power ‘to

grant affirmative non-monetary relief unless it is tied and subordinate to a money judgment.’” Id.

(quoting Austin v. United States, 206 Ct. Cl. 719, 723 (1975)). Mr. Otis has not sufficiently

alleged how such an investigation is tied and subordinate to a monetary award if he succeeds

with his wrongful discharge claim.

IV. CONCLUSION

For the reasons set forth above, the Court GRANTS-IN-PART and DENIES-IN-PART

the government’s motion to dismiss [ECF 6]. The Court GRANTS the government’s motion by

dismissing Mr. Otis’s claims for relief in [ECF 1], ¶ 29(d)-(i). Such dismissal shall be without

prejudice. The Court DENIES the government’s motion to dismiss Mr. Otis’s wrongful

discharge claim.

In its motion, the government states that “if the Court were to determine that Mr. Otis has

not waived his claim for unlawful discharge . . . we respectfully request that the Court remand

the matter to the board to consider in the first instance whether Mr. Otis’s discharge was

unlawful in light of the board’s previous decision.” [ECF 6] at 18. Mr. Otis contends that the

government “offers no legal mandate or authority for yet another remand; rather, they merely

fashion this as a request” that would result in delay.” [ECF 9] at 5. In light of this Opinion and

Order, the Court ORDERS the parties to meet and confer regarding a potential remand of Mr.

Otis’s wrongful discharge claim to the ABCMR and to file a joint status report on or before

April 4, 2025, advising the Court of the outcome. In the joint status report, the parties shall

address the specific issues to be remanded and the length of the remand period. To the extent that

the parties are unable to reach an agreement on a proposed remand, the Court will schedule a

hearing to determine further proceedings in this case.

IT IS SO ORDERED.

s/ Thompson M. Dietz

Thompson M. Dietz, Judge

10