Stahl v. United States

lln tbB Glnrte! $tutls @ourt of fre\ersl @lstms

No. 18-496C

Filed: December 27 ,2018

*,t rr * rr * * * * * *,f * * * * + *****+********** r. ** :f ** *

CHRISTINE E. STAHL,

Plarntiff, pro se,

THE TINITED STATES,

Defendant.

****+*************++*******:t**+*********

Christine E. Stahl, Tampa, Florida, Plaintiff, pro se.

Sonia Williams Murphy, United States Department of Justice, Civil Division, Washington, D.C.,

Counsel for the Government.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART THE GOVERNMENT'S MOTION TO DISMISS

BRADEN, Senior Judge.

I. RELEVANT F'ACTUAL BACKGROUND.I

Dr. Christine E. Stahl was an active duty United States Air Force ("Air Force") Lieutenant

Colonel ("Lt. Col."), who served for approximately 17 years and 9.5 months, most recently as the

Medical Director of the Intemal Medicine Clinic of the 6n Medical Operations Squadron at

MacDill Air Force Base ("MacDill") in Tampa, Florida. Compl. at 2. From December 18, 2009

to March 1, 2017, Lt. Col. Stahl was stationed at MacDill, but for a one year deployment to

Afghanistan in2012. Compl. at 2-3.

In October of 2013, Lt. Col. Stahl entered into an agreement with the Air Force to accept

$20,000 in Multi-Year Incentive Special Pay C'MISP') and $35,000 in Multi-Year Special Pay

('MSP'), in exchange for a four year active duty service commitment ('ADSC'). Compl. at 3.

This required Lt. Col. Stahl to serve until November 30, 2017, subject to pro rata recoupment of

the MISP and MSP, if she did not serve for the entire term. Compl. at 3.

I The facts

herein were derived fiom the April 4, 2018 Transfer Complaint ("Compl.").

In January 2014, Lt. Col. Stahl "suffered hardship" caused by her mother's death and a

divorce proceeding that resulted in shared custody of her two children' Compl at 3 '

In December 2015, Lt. Col. Stahl was selected for promotion to colonel, with an expected

promotion date of May 2017 . Compl. at 4.

on March 15. 2016. the Air Force colonel Management office ("colonel's Group")

notified Lt, Col. Stahl that she was being reassigned to Lackland Air Force Base in Texas

(,.Lack1and"). Compl. at 3. Lt. Col. Stahl declined the assignment and instead elected to separate

from the Air Force, pursuant to Air Force Instruction ('AFf) 36-2110, $ 2.30 (Sept. 22,2009)'

that provides officeis a seven day option to accept or reject an assignment, by requesting a

separation. Compl. at 3. The Air Force "told [Lt. Col. Stahl that she] had no other choice but to

request separation and join the reservesfl" she was not informed thatshe could "request a hardship

waiver in lieu of assignment[,]" putru*t to Air Force Instructions.2 compl. at 3-4. On March

16,2016, Lt. Col. Stahl applied for a separation date of July 1, 2016' Compl' at4'

on May 21,2016, Lt. Col. Stahl was notified that she had been promoted to the rank of

colonel and was instructed to "pin on" the rank of colonel the next working day. compl. at 4

on July 18, 2016, Lt. Col. StahLwas instructed to remove the rank of colonel and replace it with

the rank ofLt. Col, without any explanation. Compl. at 4.

On November 16,2016,Lt. Col. Stahl formally withdrew her separation request by a letter

to the lead assignments officer, Lt. Col. Nate Somers, liting AFI36-3207 , $ 2.14.1 (July 9, 2004).3

Compl. at S. ft. Cot. Somers informed Lt. Col. Stahl that, nonetheless, she would be separated

and February 1, 2017 was her separation date.a Compl. at5'

2

aFI 3o-Zt t0, $ A24.1 (Sept. 22,2009) states that a reassig@ent or deferment "may be

Air Force." To be eligible, a servicemember

approved when it is clearly in the best interests of the

must substantiate a humanitarian problem involving a family member "that is more severe than

usually encountered by other Air Force members with a similar problem." AFI 36-2110, $ A24.5.1

(Sept. 22,2009). AFI 36-2110 provides examples of requests that ale normally. disproved,

inciuding requests "associated with child care arrangements" and "[t]hreatened separation, divorce

action, or the desire to pursue child custody." AFI 36-2110,55 A247 2'9(Sept'22'2009)'

3

AFI36-3207, $ 2.14.1 provides that officers may request withdrawal of (1) "an approved

[date of separation ("DOS")] r,rp to 30 days before the DOS takes

effect by giving reasons for the

withdrawal and stating that they have not traveled or used the separation orders to move family

members, ship household goods, or receive advance travel entitlements[;]" or (2) "a pending

separation apflication by giving reasons for the withdrawal." AFI 36-3207 , $ 2.14.1 . i-2 (July 9,

zob+;. nut, an 36-3207, $ 2.14.1 also contains an exception that states: "officers may not submit

withdrawal requests within 30 days of their approved DoS unless the lequest is for hardship."

AFI 36-3201, $ 2. 14. 1 (July 9, 2004).

4 AFI 36-ZltO, 2.30.1.1 states, in pertinent part, that "[t]he decision to approve or

$

disapprove the withdrawal request will be based upon the best interest ofthe Air Force." AFI 36-

2110, $ 2.30.1.1 (5ep1.22,2009).

onJanuary5,2oIT,theSecretaryofAirForcePersonnelCounselC.SAF/PC)approved

the separation date of February 1,2017, but cleclined to waive the ADSC.

Compl. at 5. As aresult,

MSP

Lt. C;1. Stahl owed the Air Foice the amount she received for the pro-rated MISP and

bonuses. Compl. at 5.

On January 9,2017, Lt. Col. Stahl received orders reflecting a voluntary ho-norable

discharge and separation date of February 1,2017. CompL at 6' On Jantary 26'2017'Lt'

Col'

her November 16,2016

Stahl \^/Tote Lt. Col. Somers that she had not heard a response about

tasks prior to

withdrawal of separation and was concemed about completing the necessary r

course Compl at 6'

separation, including taking a Transition Assistance Program C'TAP')

onJanuary30,20l7,Lt.col.Stahl'sseparationdatewasextendedtoMarch|'2011.

Compl. at 6.

on February 8,2017,Lt. Col. Stahl contacted the colonel's Group to notiry ths Air Force

of her intention to seek a writ of prohibition from the United States Court of

Appeals for the Armed

that Lt. col'

Forces to receive retirement benefits. compl. at 7. The colonel's Group responded

about the procedure

Stahl would be separated on Mar ch 1 ,2011 and provided her with information

for withdrawing a separation request by obtaining an endorsement ftom the wing commander.

compl. at 7. On Fe-bruary 13,2017, Lt. Col. Stahl requested an endorsement from her wing

commander. compl. at 7. on February 20,2017 , the wing commander met Yth Lj. col

Stahl,

but denied endorsement of the February 13,2017 withdrawal request, stating that "it

was at her

complete discretion to do so." Compl at 7.

onFebruary16,20I7,Lt'Col.StahlcompletedacorrespondenceversionoftheTAP

course. Compl. at 6.

on February 20,2017, Lt. Col. Stahl requested assistance and clarification from the

prior

SAF/PC about her November 16, 2016 and February 13,2017 requests to withdraw the

separation request, but did not receive a reply. Compl'at7'

s TAp is a congressionally mandated course designed to "provide for individual

pre[-]separation counseling of each member of the armed forces whose discharge or release from

u"tiul auty is anticipated is of a specific date." 10 U.S.C. $ 1142(a) (effective Dec. 72,2017 to

Aug. 12, 2018; an identical regulation was in effect from Jan. 2,2013 to Nov. 24, 2015).

,.shall commence as soon as possible . . [and] in no event shali pre[-]separation

counseling

counselinf commence later than 90 days before tlle date of discharge of release[,]"

unless

,,separatio-n is unanticipated until there are 90 or fewer days before the anticipated retirement or

separation date . . . [then] pre[-]separation counseling shall begin as soon as noss]ble within

the

remaining period of service-." 10u.s.c. $ 11a2(a)(3)(A), (B) (effective Dec. 12,2017 to A]ug. 1'2,

2018; anldentical regulation was in effect from Jan. 2,2013 to Nov. 24, 2015). AFI 36-3203 $

1.9 states that "TAP larticipation is mandatory for ail eligible separating Service members with

180 days of active duty or more. Members are required to contact the installation Airman & Family

Readiness Centers (A&FRC) to be scheduled for the TAP." AFI 36-3203 $ 1'9(Sept 18,20l5)'

On March 1,2017 , Lt. Col Stahi separated from the Air Force' Compl' at 7' Dr' Stahl

the Air

was unemployed for the next four months. Compl. at7. OnMay 1,2017,Dr. Stahl repaid

Force the $15,122.08 for the MISP and MSP. Compl. at 5-6

on June 26.2017, Dr. Stahl was rehired at MacDill as a civilian doing the same work she

previously performed. Compl. at 8.

II. PROCEDURALHISTORY.

on February 27, 2017 ,Dr. Stahl ("Plaintiff') filed a pro se complaint in the United States

District court for the Middle District of Florida, Tampa Division ("District court"). on April 4,

2018, the District Court tralsfened the case to the United States Court of Federal Claims and

plaintiff filed apro se Transfer Complaint in the United States Court of Federal Claims. The April

4, 2018 Transfer Complaint alleges that Plaintiff was discharged from the Air Force without cause,

in violation of: (1) the due process clause of the Fifth Amendment to the united states

Constitution; (2) promissory ;stoppel; (3) "Congressional Mandate[;]" and (4) Air Force

regulations. io*pt. ut A. h addition, the April 4, 20i8 Complaint alleges retaiiation and

inlentional in-fliction of emotional distress. Compl. at 8-9. The April 4,2018 Transfer Complaint

(3) the

requests: (1) back pay; (2) the cost of medicai insurance for four months of unemployment;

.,recouped p.orated medical specialty bonus pay[;]" and (4) "reinstatement at the rank of colonel

with credit for time in service lost," together with interest, or "immediate fuil active duty letilement

benefits (with credit for a minimum of 24 years of military service) " Compl' at 9'

On May 31, 2018, the Govemment filed an Unopposed Motion For An Enlargement Of

Time to file u rl.ponr". On June 1, 2018, the court granted the May 31, 2018 Unopposed Motion'

on June 19.2018, the Government fiied a second Motion For An Enlargement of Time to

file a response. on June 21,2018, the coul granted the June 19,2018 Motion. That same day,

the Govemment filed an Administrative Record ("AR 1-79") alld a Motion To Dismiss And

Alternatively, For Judgment On The Administrative Record ("Gov't Mot ")'

on August 22,20|8, Plaintifi by leave of the court' frled a Response To The Motion To

Dismiss And cross-Motion For Judgment on The Administrative Record ("P1. Resp.").

on september 6, 201 filed a Reply In Support of Its Motion To Dismiss

8, the Govemment

And Alternatively, For Judgment on the Adminishative Record ("Gov't Reply")'

ilI, DISCUSSION,

A. Subject Matter Jurisdiction.

Subject matter jurisdiction is a threshold issue that a court must determine at the outset of

acase. sei steel Co. v. Citizens for a Better Env't,523 U.S. 83,94-95 (1998) ("The requirement

that jurisdiction be established as a threshold matter 'spring[s] from the natwe and limits ofthe

judiiial power of the United States' and is 'inflexible and without exception."') (quoting

Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 3'19,382 (1884))-

jurisdiction to

The Tucker Act authorizes the United States Court of Federal Claims with

.,any claim against the United States founded either upon the Constitution-,_ or any Act

adjudicate

of"Co.rgress oiany reguiation ofan executive department, or upon any express or

implied_contract

with th-e United States, or for liquidated damages in cases not sounding in tort." 28 U.S.C S

Nation,

1a9l (a)(i ). The Tucker Act does not "create[] substantive right s." United States _Navajo

v

556 U.S. i1l,ZSO (2009). lnstead, the Tuckir Act is a 'lurisdictional provisionfi that operate[s]

waive sovereign immunity for claims premised on other sources of law (e.g., statutes

or

to

contracts)." 1d

TopursueasubstantiverightundertheTuckerAct,aplaintiffmustidentifrandpleadan

independent contractual relationship, Constitutional provision, federal statute, and/or

executive

agency regulation that provides a substantive right to money damages See Todd

v United States

'

tIO p.:a iOSt, tOS+ $ed. Cir. 2004) ("[J]urisdiction qnder the Tucker Act requires the litigant to

the Tucker

identifu a substantive iight for money damages against the United States separate from

ectt.l'i. ,,The other source of law need not .*pli"itly provide that the right or duty it creates is

enforc"able through a suit for damages, but it triggers liability only if it 'can fairly

b-e interpreted

U.S.. at 1552

as mandating coripensation by the Federal Government."' Navajo Nation,556

(quoring United S;atus v. Testan, 424 U.S. 392, 400 (1976)). "This 'fair interpretation' rule

ai.*Oi a showing demonstrably lower than the standard for the initial waiver of sovereign

immuniry.. Holmei v. United Stdtes,657 I.3d 1303, 1309 (Fed. Cir. 201 1) (citations omitted).

The court addresses whether it has subject matter jurisdiction to adjudicate each

of the

claims alleged in the April 4, 2018 Transfer Complaint at Section IILD '4, infra'

B, Standing.

Article III of the United States Constitution limits the jurisdiction of federal courts to

..cases" and ..controversies." Bank of Am. corp. v. City of Miami, Fla., 137 S. Ct. 1296' 1302

(2017). Therefore, the parry "invoking federal jurisdiction bears the burden of establishing the[ ]

elements [of standing].,; Lujanv. Defs ofll/ildiife,564U.S.555,56i (1992).

To demonstrate the

existence ofa case or contoversy, a itaintimmust show "an 'injury in fact' that is 'fairlytraceable'

ithat is likely to be redressed by a favorable judicial decision'"'

to the defendant's conduct and

Bank of Am' Corp', |37 S. Ct. at 1302 (quoting Spokeo, Inc. v' Robins, 136 S. Ct. |540' 154./

the same

(2016)i. The Uniied States Court ofFederal Claims, although an Article I court, ' applies

st*dir1g ,"qoi."ments enforced by other federal courts created under Article IIl." Weeks Marine,

Inc. v. [Jnited states, 575 F .3d 1352, 1359 (Fed. cir. 2009).

The April 4, 2018 Transfer Complaint alleges that the Air Force involuntarily discharged

Plaintiff from service resulting in monetary injury in the form of lost pay, medicai insurance costs'

and lost retirement benefits. Compl. at 8-9. Therefore, the April 4, 2018 Transfer Compiaint

alleges an injury in fact that is "fairly traceable" to the challenged Air Force actions and

that can

(Fed'

be riclressedby a favorable decision. See Pittman v. United States, 135 Fed. Cl' 507 ' 522

cl.2017) (determining that a retired service member had standing, because "a favorable decision

by the court would allow Plaintiffto recover that back pay owed")'

For these reasons, the court has determined that Plaintiff has standing to seek an

adiudication of the claims alleged in the April4,2018 Transfer Complaint'

C. Standards Of Review.

party to

Rule 12(bX1) of the united States court of Federal claims ('RCFC') authorizes_a

hle a motion asserting a "lack of subject-matter jurisdiction." RCFC 12(bx1). "In

deciding a

tnre all uncontroverted

motion to dismiss for lack of subject mitter jurisdiition, the court accepts as

to the plaintiff "

factual allegations in the compla"int, and construes them in the light most favorable

Stephens v. (Jnited States, SS4 F.3d 1 151, 1 1 55 (Fed. Cir' 2018) (citations

omitted)'

Rule 12(bX6) of the united states court of Federal claims authorizes a party

to file a

,.failure to state a claim upon which relief can be granted." RCFC 12(bX6).

motion asserting a

,,To s'rvive a flule 12(bX6) motion, [a] complaint must allege facts plausibly suggesting (not

F'3d

merely consistent with) a showing of entitlement to relief." Harris v. United states,868 "accept

court must

1376,1379 (Fed.Cir.2017) (citations omitted). And, as with Rule 12(b)(1),the

all wlll-pleaded factual allegations as tnre and draw all reasonable inferences

in [the plaintiff s]

favor." Id.

"

It has been the hadition of this court to "interpr et la) pro se complaint liberally f7us3

v'

rn a

Bauer,138 S. Ct. 2561, 2563 (2018). Nevertheless, while the court may excuse alnblguoes (lnited

fa1hxes." Henke.v.

pro se plaintiff s complaint, the cou.t "does not excuse [a complaint's]

'states,'60 court's

F.3d 7g5, 1g9 (Fed. cir. 1995). A pro se plaintiff must still establish the

jurisdiction.SeeTindlev.UnitedStates,56rea.ct.33T'34|(Fed'C1.2003)(..Thefactthat

pluintiffi, pro"" edlngpro se, however, does not change the ultimate legal standard and plaintiff

s

still^meetminimal

turden of proof on subject matter jurisiiction."l. And, a pro se plaintiff "mLxt

standards io avoid dismissal undei Rule 12(bX6)." Onah v. Fiat Chrysler,884 F'3d 1135' 1141

(Fed. Cir. 2018).

D' The Government's June 21, 2018 Motion To Dismiss'

1. The Government's Argument'

The Govemment argues that the court should dismiss the April 4' 2018 Transfer

Complaint's due process anipromissory estoppel claims Gov't Mot' at 1 1'

The court does not

.,to adjudicate claims arising under the [D]ue [P]rocess [c]lause of the Fifth

have jurisdiction

Gov't Mot'

Amendment to the United States Constitution[,i because [it is] not money-mandating'"

at 13 (citation omitted). The court also does not have jurisdiction to adjudicate a claim for

promissory estoppel. Gov't Mot. at 13

In addition, the April 4, 2018 Transfer complaint fails to state a claim upon which reiief

can be granted for involuntary discharge, because Plaintiff voluntarily resigned

from military

service. Gov,t Mot. at 15. Instead of accepting her promotion and reassignment, Plaintiff

..knowingly and voluntarily decided to exercise her 7 day option to separate the Air Force'"

_from

Gov't Mot. at 15. Granting a hardship request is within the discretion of the Air Force' Gov',t

Mot. at 15. Therefore, whether the Air Force failed to inform Plaintiffofthe possibility ofseeking

a hardship request does not alter Plaintiffs voluntary decision to separate.

Gov',t Mot' at 15. In

addition, plaintiff s withdrawal request does not "rebut the presumption of voluntariness[,]"

the Air Force'

because such a request is not automatically approved and is left to the discretion of

Gov'tMot.at16. is such, the April 4,2018 Transfer Complaint "fail[s] to state a plausible Tucker

Act claim[; therefore,] the [c]ourt does not have jurisdiction to order the equitable relief including

reinstatement and promotion that Plaintiff requests. Gov't Mot' at 17.

In addition, Plaintiff is not entitled to recoupment of the medical specialty bonus pay,

because the April4,2018 Transfer Complaint alleges that Plaintiff understood the MISP and MSP

bonuses requiied her to serve until November 30, 2017 or those pay incentives could be recouped.

Compl. at 3. Plaintiffdid not serve until that date; therefore, proportional recoupment was proper'

Gov't Mot. at 18.

Plaintiff also does not request nor is entitled to any relief for the alleged violation of a

"Congressional mandate" that presumably refers to not completing the TAP course within the

proper time frame. Gov't Mot. at 18. Plaintifftook the course pdor to separation and the April 4,

20i8 Transfer Complaint does not allege that the Air Force obstructed her from taking the course.

Gov't Mot. at 19. In addition, the court does not have jurisdiction to adjudicate the alleged tort

claims of retaliation and intentional infliction of emotion distress' Gov't Mot' at 19'

2. Plaintiff s Response.

Plaintiff responds that the "non-fiivolous allegations in [the April 4,2018 Transfer

Complaint] satisfies the jurisdictional requirement" of the Tucker Act as to the due process and

promissory claims. Pl.Resp.at18. The Military Pay Act is a separate money-mandating

"stoppel

,tutut" thui ullo*i a wrongful discharge claim to be adjudicated by the court. PI. Resp. at 19. The

Tucker Act also "allows actions upon express or implied-in-fact contracts" and "money claims

against the [G]ovemment to determine issue[s] of law and fact." Pi. Resp' at 19' The Air Force

did not afford Plaintiff her due process rights and did not abide by its regulations by ignoring her

withdrawal request. Pl. Resp. at 20. Moreover, there are "multiple cases that have allowed

estoppel to be employed against the [G]overnment." Pl. Resp' at 20'

In addition, the April 4, 2018 Transfer Complaint does state a claim on which relief can be

granted, because Plaintiff involuntarily was discharged when she "unsuccessfully tried to

*ithdru* [her] resignation with ample time before its effective date[.]" Pl. Resp. at 21. The Air

Force disregarded Plaintiffs right to withdraw her separation request. Pl. Resp. at 22. In addition,

it was not in the Air Force's best interest to decline her withdrawal request, as demonstrated by

the Air Force's need for Plaintiff s services and decision to retain her for a year after her initial

separation request and rehire her as a civilian after her separation. Pi. Resp. at22,28. Furthermore,

"when a withdrawal ofresignation is made prior to the effective date of its execution, it cannot be

arbitrarily rejected on the grounds of complete discretion." Pl. Resp. at 26 (quotations omitted).

The Air Force did not provide a reason why Plaintiffls withdrawal request was in its best interests.

Pl. Resp, at26. Inaddition, Plaintiff was harassed, retaliated against, subjected to a hostile work

environment, and..denied the 90 days to execute what she 'leamed' in the TAP coulse[.]" Pl.

Resp. at 24.

3. The Government's RePlY.

The Govemment replies that Plaintiff received orders to relocate and voluntarily resigned

in lieu ofreassignment. Gov'tReplyat5. Plaintiff never had a "right" to withdraw her separation

reouest: "the ultimate decision as to whether to accept the withdrawal was always in the hands of

the Air Force." Gov't Reply at 5. In addition, the April 4,2018 Transfer complaint "provides no

explanation for how the Aii Force allegedly 'denied' or in any way prevented her from

taking the

TAP course within the proscribed ninety days before her separation." Gov't Repiy al 6.

It was

available online' Gov't

Plaintiffs responsibility to take the course that is publicly advertised and

Reply at 6.

Finally, the court should ignore the claims Plaintiffraises in her Response of abuse, sexual

discrimination, and hostile worklnvironment, because it is "improper for a party to:aise new

claims not included in its complaint in an opposition to a motion to dismiss." Gov',t

Reply at 7

(citation omitted).

4. The Court's Resolution.

a. Plaintiff s Due Process Claim'

TheTuckerActrequilesaplaintifftoidentifiasubstantiverightformoneydamagesunder

Navaio

an independent .o*"" of lu* thit can fairly be interpreted as money-mandating. See

Nation,556 U.S. at 1552; see also Todd,386 F.3d at 1094. The united states court of

Appeals

for the Federal circuit has held that the Fifth Amendment Due Process clause is not money-

mandating. see Murray v. united states,817 F.2d 1580, 1583 (Fed. cir. 1987)

("Although the

Fifth Amindment,s due process clause provides that no person shall be deprived of

property

without due process of law, no language in the clause itself requires the payment of money

1095 (Fed. Cir.

damages for its violation 1'); see atsi Nir^an v. United States, 429 F .3d 1081,

jurisdiction over due process

2005)-(,,The [United States] Court ofFederal Claims ordinarily lacks

jurisdiction to hear [] due

claims'undeithe Tucker Act[.]"). -pittrTherefore, the court "does not have

Drocess . . . claims ,rnd". ttt" Amendment to the United States Constitutlon." Crocker v'

[Jnited states,125 F.3d 1415,1476 (Fed. Cir. 1997).

For this reason, the court has determined that it does not have

jurisdiction to adjudicate the

that claim for

due process claim alleged in the April 4, 2018 Transfer Complaint and must dismiss

lack of subject matter jurisdiction. See RCFC 12(bX1).

b. Plaintiff s Promissory Estoppel Claim'

The United States Supreme Court has held that Tucker Act "jurisdiction extends only

to

contracts either express or implied in fact, and not to claims on contracts implied in 1aw."

Hercules'

Inc. v. [Jnited Sties,516 U.S. +tZ, 423, (1996). "Promissory estoppel is another name for an

implied-inJaw contact claim:' Lawndale Restoration Ltd. P'ship v. [Jnited states,, 95 Fed' cl'

49i, 506 (Fed. Cl. 2010). Therefore, the court does not have jurisdiction to adjudicate a claim

based upon promissory estoppel. SeeCarterv. lJnitedstates,98Fed. cI.632,639

(Fed.cl.2011)

court- has no jurisdiciion to hear a claim for promissory estoppel[.]") (citations omitted).

1"fhis

For this reason, the court has determined that it does not have jurisdiction to adjudicate the

promissory estoppel claim alleged in the April 4, 2018 Transfer Complaint and must dismiss that

fo, lack of subject matter jurisdiction' See RCFC 12(bX1)

"lui-

c. Plaintiff s Tort Claims.

jurisdiction to

The Tucker Act authorizes the United States Court of Federal Claims with

.,for liquidated damages in cases nol sounding in tort." 28 U'S.C. $ 1491(a)(1)

adjudicate claims

the united

(emphasis added). In other words, the court "lacks jurisdiction over tort actions against

itut"t)' Bro*n v. United States,l05 F.3d 621,623 (Fed. Cir' 1997)'

For this reason, the court has determined that it does not have

jurisdiction to adjudicate the

claims of retaliation and intentional infliction of emotional distress alleged in the

April 4, 2018

jurisdiction6 S"e

Transfer Complaint and must dismiss those claims for lack of subject matter

RCFC i2(bX1).

d' Plaintiff s Transition Assistance Program Claim'

The united states court of Appeals for the Federal circuit has held that 10 U.s.c. $

1142

.'mandate[] money dama ges':; [Il*an v. (JnitedStates,l51F. App'x.970'973 (Fed- Cir.

does not

2004).

jurisdiction to adjudicate the

For this reason, the court has determined that it does not have

April 4, 2018 Transfer complaint's claim that the Air Force violated the TAP course tequirements

and must dismiss this claim for lack of subject matter jurisdiction. See RCFC

12(bX1)'

e. Plaintiffls Involuntary Discharge Claim'

The United States Court of Appeals for the Federal Circuit has held that the Military

Pay

(Fed.

Act, 37 U.S.C. g 204, is -on"y---iutin g. See Metz v. united States,466F.3d 991, 998

..[T]he issue ofthe voluntariness ofa plaintiff s discharge is not jurisdictional; rather,

Cir. ZOO'1.

Ittl itrl u'qu"rtion that should be considered in the context of the merits of a plaintiff s case m

a"i"-ining whether a plaintiff can take advantage of $ 204's money-mandating status." 1d

the April

Therefore, the court has determined it has jurisdiction under the Tucker Act to adjudicate

4, 2018 iransfer Complaint's claim of involuntary discharge. The plainfiff, _however, must

and take advantage

establish that h". "separation was involuntary in order to fit within the scope of,

of, the money-mandating status of $ 204, or else h[er] claim falls for failure to state a claim

upon

which relief can be granted." 1d

,.A resignation is 'presumed to be voluntary. "' Moyer v. united states, L90 F.3d 1314'

1320 (Fed. Ck. 1999) (citations omitted). And, "the imposition of a less desirable

altemative

(mandatory retirement) does not render an otherwise voluntary retirement in-vo1untary." 1d at

i3t9; ,r" also Sammt v. United States,78o F.2d 3 1, 33 (Fed. Cir. 1985) ("[A] choice of unpleasant

altematives does not make a choice involuntary."). But, there are circumstances where the

ljnited

6 The court does not have jurisdiction to adjudicate the claims of abuse, sexual

discrimination, and hostile work environment raised in Plaintiffs Au g!;s|22,2018 Resp-onse. See

do not

Novosteel SA y. (Jnited States,284 F3d 1261, 127 4 (Fed. Cir ' 2002) ("[Reply briefs]

provide the moving party with a new opportunity to present yet another issue for the court's

consideration."); see ako Driessen v. lJnied States, 1 16 Fed. C|. l3, 44 n 10 (Fed. Cl. 2014)

("It

is generally improper for a party to raise new claims not included in its complaint in an opposition

to a motion to dismiss.").

of voluntariness

States Court of Appeals for the Federal Circuit has recognized that "the element

is vitiated" and a iesignation has been held to be involuntary. See Scharfv. Dep't

of the Air Fotce'

a resignation

'lloq.2d 1572,15'14 (Fed. cir. 1983) (listing circumstances where courts have found

pressure). Applicable in

rendered involuntary, such as duress, unsuciessful withdrawal, and time

this case are two such circumstances: (1) when a resignation is "obtained by -agency

misrepresentation or deception[;]" and (2) when "an employee unsuccessfully

tries to withdraw

h[er] resignation before its effective date[.] ld.

i. MisrepresentationOrDeception'

,,An otherwise voluntary resignation or request for discharge is rendered involuntary if

it . . . results from misrepresentation or deception on the part of govemment offrcers_." Tippett

v.

UnitedStates,l85F.3d1250,1255(Fed.Cir.1999)abrogatedonotherCrgllndsbyMetz'466

F.3d 991; see also Moyer,l90 F.3d ;t 1320 (holding that the lower court "did not clearly err in

was no

finding as a fact that [the plaintifPs] retirement was voluntary[']" because there.

for the Federal Circuit has held that the

-i.."p"r"r.ntution). The United Stat"s iourt of Appeals would have been

court'must apply an objective test to determin" *h"th"t "a reasonable person

deceived] by the agency's statements." Covington v Dep't of Health & Human

Servs'

-irt"d 1o,

750F.;d%7,g421iei.Cir.iea+)..,lrln"."isnorequirementthatanemployeebeintentionally

to h[er] detriment,

deceived[,]" so long as the plaintiff "materially relies on the misinformation

h[er] retirement is considered involuntary." id.; see also .Scharf, 7I0 F.2d

at 1575 (holding a

piaintiff "justifrably relied on . . . misleading advice to his detriment")'

April 4, 2018 Transfer Complaint alleges that Plaintiff deciined assignment

In this case, the

to relocate but, instead, elected to separate from the Air Force Compl' at 3'

This is

-sep-aration

Plaintiff

pi"sumed voluntary and the choice b"t*"".r "unpleasant alternatives" does not

make s

The April 4,

iecision involunt ary. See Sammt, i80 F .2d, X 33; see also Moyer,190 F.3d at 1320.

from the Air

2018 Transfer complaint, however, also alleges that Plaintiff "elected to []

separate

and join the reserves[,]"

Force as [she] was told [she] had no other choice but to request separation

when she could have applied for a hardship exception under AFI 36-2110,SA24.1.

Compl.at3-

4. Therefore, the Aprii 4, 201 8 Transfer iomplaint alt"ges that the Air Force misled or deceived

in

Plaintiff to believe ihat she had only two options and Plaintiff relied on that misrepresentation

making her initial decision to separate'

the

The Government argues that any misrepresentation or deception was harmless,-because

that

Air Force had the ability to grant hardship requests, although AFI 36-2110 states requests

..associated with child care irangements; and "[t]hreatened separation, divorce action, or the

desire to pursue child custody" tro.-utty are disproved. see AFI 36-2110, $$

424.7.2' 9 (Sept.

22, 200r, The law, however, doei not riquire that a plaintiff must establish that a

(holding

misrepresentation rises to the level of being prejudi cial. See Covington, T 50 F .2d at 942

going to be abolished

that a;laintiffrelied on the misinformation oi deception that "the agency was

and the [plaintiff] had no right of assignment 1o another position" when the..possi bility of

reassignment existedl; see alsi Tippett,l85 F.3d at 1256 (holding that the court is "not Persuaded

by the [G]ovemment,s argument; that a misrepresentation "was not prejudicial"). The April

4,

Zb18 Tiansfer Complaint'i allegation that the Air Force represented to Plaintiff,that her only two

choices were to accept the reass=ignment or separate, when she could have applied for a

hardship

request. even if the Air Force was unlikely to grant such a request, is enough at this stage to

10

..plausiblysuggest[]''.ashowingofentitlementtorelief,',Harris,868F.3dat1379(citations

omitted).

For these reasons, the court has determined that the April

4' 2018 Transfer

which relief can 'Complaint

be granted'

alleges sufficient facts to state ;;;t* i"t involuntary

discharge upon

basJd on the Air Force's alleged misrepresentation or

deceptron'

ii' UnsuccessfulWithdrawal'

Inthecontextofacivilianresignation,avoluntaryresignationcanberenderedinvoluntary'

before its effective date'"

if "an employee urrro"""rrn ity* i,# to *iittat"* h[ei] .resignationcourts have found "that the

scharf,7l0 F.2d at 1574 (listing withdrawal as a situation ihere F.2d 1379' 1384-

element of voluntariness is tliting Cunningham v.. united states,423

"iti"t;a"l

85(ct.Cl.1970)(holdingaplaintiffsresignationwasinvoluntarYwhentheAirForcedeniedthe

claims also has applied this principle in

withdrawal request)). Th" u;i#itut; cEurt of Federal

States,3o Fed Cl' 22'7 ' 230 (Fed Cl 1993)'

aff'd' 26

military pay cases. See ar"*",-i"i'a 1998)

F.3d 139 (Fed. Cir. 195+); see also Glallucci v' inned

States'4l Fed' CI 631' 637.(Fed

.Cl'

(consideringwhetherthe""r""""ttf"fwithdrawairebuttedthepresumptionofvoluntariness)'

ThepredecessortotheUnitedStatesCourtofAppealsfortheFederalCircuithasheldthat

to.accept or not' and allow [a] withdrawal

"[t]he Secretary [of the Army] can exercise discretion

will be sustained if not albihary ald capricious and

[of a resignation] or not, anihis decision cI 1892)' Therefore' in Brown'

contrary to la'w;' Cole, u"iri-srt*i'231 ct cl"lo2'704(ct'

request "had no effect upon his prior

the court determined that u piui*irr, a-ttempted withdraw-al

Flrst, because the "decision to deny

resignation,fortwo reasons.-;;; B;";",:O fea. Ct. at230.

oracceptawithdrawalofresignationftomservices^restssolelywithirrthe.discretionoftheArmy..

,,decision must be g?-r"J Ju*tial deference." Id. at 23031. second, "plaintiff s

and that

request was untimely."T Id. at23l.

Inthiscase,theApril4,2018TransferComplaintallegesthatPlaintiffsubmitteda

offrcer and again on February

withdrawal request on Nove.,ii..ig, zoio to the lead assignments

13,2017 to the Wing Co^--d"t' iompl at 5, 7' The

eprit +' ZOtS Transfer-Complaint alleges

aia *i'"ct on ihe withdrawal request and the wing

commander

that the lead assignments

"tti"* u",irg only that "it was at her complete discretion

denied endorsem.nt or trr" *iiia.u*"i r"q""r,,'reason-able

inferences" in Plaintiff s favor' these

to do so." Compl. at S, Z.---iltu*ing "'all

withdrawal requests satisfy the procedural requirements

ofAFI 36-3207' $ 2 14'1'8 See Hanis'

868 F.3d at 1379 (citations omitted)

TAtthisjuncture,thecourtdoesnotdeterminewhetheranuntimelywithdrawalisfatalto

Fed.

a claim of involuntary dir"h;;;;;Jupon an

unsuccessful withdrawal . But cf. Gallucci, 41

all the conditions precedent to grantng

cl. at 642 (..plaintiff must [] ie able to demonstrate that

such a [withdrawal] request were fulfilled'")'

EAFI36-3207,$2.14.1statest}ratofficersmayrequestwithdrawal,of'(l)..anapproved

Dosupto30daysbeforetheDostakeseffectbygivingreasonsfo.rthewithdrawa.landstating

thattheyhavenottraveledorusedtheseparationorderstomovefamilymembers.shiphousehold

ll

Moreimportantly,althoughtheAirForce'sdecisiontorejectPlaintif|swithdrawalrequest

is afforded deference, the April;, 2018 Transfer Complaint alleges that the Air Force's rejection

the decision was "based upon the

of plaintiff s withdrawal aiA not'*iA*"" *y ,"uronlng that

22,2009). The Wing Commander

best interesrs of the Air Force.ll-npI lO-Zt t O, $ 2.30.1.1 lsept.

had discretion to deny Plaintiffs withdrawa'l iequest, but

ihut ulo.t" does not evidence that the

See Cunningham,423 F.2d at 1384

(holding that the

decision was not arbitrary *J

"upti"io"r. the mutual advantage of

Air Force,s stated reason of rejection, that it was "not considered to

not enable the court to "discem

yourself and the Air Force to-.''i11't;* this resignation[,]" tlid

[any] exercise of discretion in a*yi.r!

tn","rig#ion *ithd.u* al"); see also cole,23l Cr. Cl. at

and contrary to

ioi t;it withdrawall decision will ie s,.,stainid if not arbitrary and capricious

law.").

For these reasons, the court has determined that the April

4' 2018 Transfer Complaint

glanted'

fot involuntary discharge on which relief can be

'

alleges sufftcient facts to state u

i"i; "fui- to act on Plaintiffs withdrawal request and.later decision

f.il*"

based on the Air Force,s

why such a decision was in the

to deny plaintiffls wittrarawai iequest without stating the reasons

..best interests,, of the err l'orce. to ,ft" contrary, the-fact that Plaintiff was rehired as a civilian in

that Plaintiff s separation was not in the

the same position or ,"rponriiiliiy afpears to indicate

"best interests" of the Air Force.

E' The Motions For Judgment On The Administrative Record'

1. The Government's Argument'

The Govemment argues, in the altemative' that it is entitled to judgment on the

requests are left to the discretion of

Administrative Record. Gov,"t Mot. at 21. Granrs of hardship

the Air Force and there was "nottritrg 'iilegal' about the

Air Force offering [Plaintiffl two optlons:

reassign or separate.,, c*';^M;-? 21] In addition, plaintiff had no "right" to withdraw her

,,Air Force is the ultimate decision maker of whether approval is proper

,"p*o:tion ."q""st and the

basedonmanningandtheo.,reruttb"stittterestsof[the]AirForce"Gov'tMot'at22'Moreover' Mot'

plaintiff did not co-pry *it, ei. r"."" regulations'in making her withdraw{ *q.":.r1. Gov',t

at22. Thefirst withdrawal t"q"*, *". ,iot made "through Ler local chain" and did not "explain

her reasons for withdrawal.i

'Gov't

Mot. at22 (citing AFI 36-3207, $$ 2'14'1 2, 2'14'2) The

.""ond..qu.,t*asnotlessthanthirtydaysfromtheapprovedSeparationdate-anddidnot..raise Gov't Mot. at

;;;iy have justified processing the withdrawal[.]"

r1*arrrip which would .

""v

22. In addition, there is ; the Administrative Record "to suggest that the Air Force's

""rfi;

actionswerewithoutarationalb'asisornotinaccordancewiththelaw'''Gov,tMot.at22.

application by giving

- entitlementsH" or (2) "a pending separation

goods, or receive advance travel

reasons for the withdrawal." ipl

zs-zzol ,'5 z)q.t.l-2 (July 9, 2004)- But, AII

36-3207 $

'

that states: "officers may not submit withdrawal requests within

2.14.1 also contarns an excepdon

2.14.1 (July 9,

i0 days of their approved ObS untess the request is for hardship." AFI36-3207, $

2004).

12

2. Plaintiff s ResPonse.

plaintiff responds that the Air Force did not "provide a reason why the [P]laintiffs

of.its personnel

withdrawal of separatron would adversely affect the agency's administration

at 26 (citing AFI 36-307' $

requirements" in accordance *i*t et Foice regulations' Pl' R"tp'

Plaintiff s-withdr.awal request

i.i+,.+1. m"Air Force acted arbitrary and capriciously^in denying

,.demonstrated that it desperately needed 11 Plaintiff, needed her at MacDill, because it

and .and an Active Duty

oii"..a n". a [civilian] posiiion fiiling the same position she occupied as

physician[.]" Pl. ResP. at27J8-

3. The Government's RePIY'

TheGovemmentrepliesthattheAirForcedecisiontograntPlaintiffsSeparationrequest

oiihe withdrawal requests,,was rational and in accordance with Air

and refusal to accept eitrrer

Forceregulations.,,Gov,tReplyat8.TheAirForcedeterminedthatPlaintif|sdesiretorematn

as a civilian "demonstrates that the Air

at MacDill was contrary to itJ rieeds and hiring her back

as a wrongdoer'" Gov't Reply at

Force was not retaliating uguinJ P6trtiff] or tlating [Plaintiffl

properly to submit a

9. In addition, plaintiff required th" endo.se-ent oiher Wing Commander

withdrawal request. Gov't n"piy 10. The Wing Commander was not required to provide a

"t see AFI 36-3207 S2'I4'4'

reason for the decision not to endorse Plaintiff s request.

4. The Courtts Resolution'

TheTuckerActprovidesthat..[i]nanycasewithinitsjurisdiction,thecourtshallhavethe

executive body or official with such

powe. toiemand uppropriut" -un"t' to iny aiministrative.or

RCFC 5.2'2(a) (The

direction as it may a.". p.of .. u"J iust.'; z8 U S C $ l49l(a)(2);

see

.also

.,may order the remand of appropriate matters to an administrative or executive body or

court

offrcial.").

Inthiscase,PlaintiffdidnotfirstsubmitaclaimofinvoluntarydischargetotheAirForce Plaintiff s

Board for Correction ofMilitlf Re-.at gefeCUR'). Therefore, the court remandsForce

invoiuntary discharge lo ttre ersbl\an to determine whether: (1) the Air either

"tairn plaintiff by informing her that either she was required to accept

.ir."pr"r.*"a or ieceived

reassignment or separate; (2)

plaintiff r;ued on a misrepresentation or deceptive statement by the

officer to.act on the

Air Force to her detriment; -a i:l the failure either of the lead assignments

Novemberl6,20l6separation,.q,,"sto'tt'eWingCommander'sexerciseofdiscretioninrefusing

36-2110, $ 2.30'1 1 (Sept' 22'

to endorse the February tz,'iOti r"qr"r, *u, u-uiolutiott ofAFI position of

200g), particularly since .q,i. io."" rehired plaintiff as a civilian in the same

tt.

t"rfontiUifity. See Administrative Procedure Act, 5 U S C $ 706(2XA)'

Iv. CONCLUSION.

Forthesereasons,theGovernment'sJune2l,20l8MotionToDismissisgrantedinpart is

and denied in part.All other motions are denied as moot. The involuntary discharge claim

remandedforconsiderationtotheAFBCMR.SeeRFCF52.2'TheGovernmentisdirectedto

report to the court nin.iy days on the sttu:- 9I the remand proceedings -- See RCFC

"lr"ry

lzi.ziuxrl<ol. within fourteen duy, uft", the AFBCMR's decision, the parties will file a Joint

StatusReDortwiththe"o,.,tud.,isingwhether:(i)theremandaffordsasatisfactorybasisfor

13

disposition ofthe case; or (2) further proceedings are required. See RCFC 52.2(e)(l)' Ttus case

is stayed during the remand period. See RCFC 52.2(bX1XC).

The Clerk of Court is directed to enter judgment accordingly.

IT IS SO OR-DERED.

SUSAN G. BRADEN

t4