# Otis v. United States

> United States Court of Federal Claims · March 21, 2025

URL: https://www.frixlaw.com/law-library/cases/10827720

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** March 21, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Thompson M. Dietz
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10827720

## How later opinions describe it (automated extraction)

- stating that “[i]t is well settled that the Court of Federal Claims lacks jurisdiction over any and every kind of tort claim”
- 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”
- 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”
- 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)

## Opinion text

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).

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10827720. Public record. Not legal advice.