# Turner v. United States

> United States Court of Federal Claims · June 15, 2022

URL: https://www.frixlaw.com/law-library/cases/6350294

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** June 15, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Thompson M. Dietz
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

In the United States Court of Federal Claims
No. 17-305
(Filed: June 15, 2022)

**************************************
RYAN PIERRE TURNER, *
*
Plaintiff, *
* Motion to Dismiss; RCFC 12(b)(1);
v. * Motion to Amend; Motion to Transfer;
* Military Pay Act; Mootness.
THE UNITED STATES, *
*
Defendant. *
**************************************

Joseph Fellows, Mobile, AL, counsel for Plaintiff.

Mikki Cottet, U.S. Department of Justice, Civil Division, Washington, DC, counsel for
Defendant.

OPINION AND ORDER

DIETZ, Judge
After the Board for the Correction of Naval Records (“BCNR”) granted relief for his
wrongful termination claim, Plaintiff, Ryan Pierre Turner, argues that he is entitled to “treble
damages” because of the government’s actions. Mr. Turner also requests that the Court grant him
leave to amend his complaint to include tort claims and, alternatively, that the Court transfer his
case back to the United States District Court for the Southern District of Alabama (“District
Court”). The government moves to dismiss his complaint for lack of subject-matter jurisdiction
pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”)
and requests that the Court deny his motions to amend his complaint and transfer his case.

The Court finds that Mr. Turner’s claim for “treble damages” falls outside of this Court’s
jurisdiction because it is founded on a tort claim, not a money-mandating source of law. The
Court also finds that allowing Mr. Turner to amend his complaint would be futile since this
Court lacks jurisdiction over tort claims and that transferring his complaint to the District Court
would not be appropriate because the District Court also lacks jurisdiction over his tort claims.
Accordingly, the Court GRANTS the government’s motion to dismiss and DENIES Mr.
Turner’s motions to amend his complaint and transfer his case.
I. BACKGROUND

Mr. Turner was honorably discharged from active duty in the United States Marine Corps
on July 30, 2014. April 19, 2021, BCNR Decision at 1, ECF No. 56. Following his discharge,
Mr. Turner filed a complaint in the District Court alleging five claims against the United States
Marine Corps: (1) racial discrimination, (2) negligence, (3) wantonness, (4) libel, and (5)
wrongful termination. See Turner v. United States, No. 15-0666-KD-B, 2016 WL 7404865, at *1
(S.D. Ala. Dec. 21, 2016). The District Court dismissed his racial discrimination claim because
neither Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq. nor Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. are applicable to the United States Marine
Corps. See Turner, 2016 WL 7404865, at *1. The District Court also dismissed his three tort
claims as barred under the Feres doctrine.1 Id. at *1-*2 (citing United States v. Feres, 340 U.S.
135, 146 (1950)). His wrongful termination claim was transferred to this Court because this
Court possesses exclusive jurisdiction under the Tucker Act over Military Pay Act claims over
$10,000. Id. at *2-3; 28 U.S.C. § 1491(a)(1).

After his case was transferred to this Court, Mr. Turner filed a transfer complaint seeking
“just compensation from the United States for his wrongful termination.” Transfer Compl. ¶ 1,
ECF No. 4. The Court stayed proceedings to facilitate multiple reviews by the BCNR, see Order,
May 1, 2017, ECF No. 7, which ultimately yielded the following relief for Mr. Turner: (1)
removal of all derogatory documents from his Official Military Personnel File (OMPF); (2)
restoration of his rank with all associated back pay and allowance; (3) promotion consideration
by a FY14 Staff Sergeant Enlisted Remedial Selection Board (ESRB); (4) full separation pay; (5)
reinstatement in the United States Marine Corps; and (6) Correction of his Primary Military
Occupation Specialty (“PMOS”) and recommendation for promotion consideration by an ESRB
for Gunnery Sergeant.2 See July 5, 2017, BCNR Decision, ECF No. 12; Sept. 5, 2017, BCNR
Decision, ECF No. 14; Dec. 5, 2017, BCNR Decision, ECF No. 18; Apr. 19, 2021, BCNR
Decision, ECF No. 56.

Following the BCNR decision on April 19, 2021, the government filed a status report
stating that “Mr. Turner has now received all relief that the Court could grant him” and the
government “respectfully request[s] a status conference with the Court to determine next steps.”
Def.’s Status Report, ECF No. 57. After the parties filed RCFC 52.2(e) notices, the Court
ordered Mr. Turner to file for leave to amend his complaint and, in response, for the government
to file a motion to dismiss. Order, Sept. 1, 2021, ECF No. 67. Mr. Turner subsequently moved
for leave to amend his complaint, or, in the alternative, have the Court transfer his case back to
the District Court, see Pl.’s Mot. for Leave to Amend, ECF No. 68 [hereinafter Pl.’s Mot.]. The
government moved to dismiss his complaint for lack of subject-matter jurisdiction. See Def.’s
Mot. to Dismiss, ECF No. 69 [hereinafter Def.’s Mot.]. Based on a review of the briefing, the

1
The Feres doctrine holds that “the [g]overnment is not liable under the Federal Tort Claims Act for injuries to
servicemen where the injuries arise out of or are in the course of activity incident to service.” United States v. Feres,
340 U.S. 135, 146 (1950).
2
As of September 16, 2019, Mr. Turner has been reinstated in the United States Marine Corps and is stationed at
Camp Lejeune, North Carolina in the Wounded Warrior Battalion. Pl.’s Status Report, ECF No. 33.

2
Court has determined that oral argument is not needed and that the remaining issues are ripe for
decision.

II. DISCUSSION

A. The Government’s Motion to Dismiss

Mr. Turner does not challenge the government’s position that he has been granted all the
relief that he may be granted by the BCNR for his wrongful termination claim. See Pl.’s Mot. at
2 (stating that “[b]ackpay and correction of military records are a good start, and [he] is
thankful”); see also id. at 4 (“Related to the [wrongful termination claim], there has been some
relief given by the remand to the BCNR. It has provided Plaintiff Turner a sliver of justice that
his records have been corrected and that he has been granted re-enlistment and some back pay
and some benefits.”). Instead, he argues that remand to the BCNR has not afforded him a
satisfactory basis for disposition of his case because the Court “has a way to grant [him] more
relief than the BCNR has granted him.” Id. at 3. Specifically, he argues that the Court can award
him “additional treble damages” because the government’s actions related to his medical
treatment made his wrongful termination worse. See id. at 4-5; see also Transf. Compl. ¶ 15
(“Plaintiff requests triple back pay for the hardships this has caused him”). However, despite Mr.
Turner’s contentions, this Court lacks jurisdiction to consider his remaining claim for “treble
damages” because he fails to cite a money-mandating source of law that grants this Court
authority to award such treble damages, and his claim is based on alleged medical negligence—a
tort claim that falls outside of this Court’s jurisdiction.

This Court is a court of limited jurisdiction. Brown v. United States, 105 F.3d 621, 623
(Fed. Cir. 1997). This Court’s jurisdiction is defined by the Tucker Act, which waives the
sovereign immunity of the United States for “any claim against the United States founded either
upon the Constitution, or any Act of Congress or any regulation of an executive department, or
upon any express or implied contract with the United States, or for liquidated or unliquidated
damages in cases not sounding in tort.” 28 U.S.C. § 1491(a) (2018). The Tucker Act, however, is
“merely a jurisdictional statute and does not create a substantive cause of action.” Rick’s
Mushrooms Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) (citing United
States v. Testan, 424 U.S. 392, 398 (1976)). To establish this Court’s jurisdiction, a plaintiff must
“identify a substantive source of law that creates the right to recovery of money damages against
the United States.” Id. (citing United States v. Mitchell, 463 U.S. 206, 216 (1983)). A motion to
dismiss for lack of subject-matter jurisdiction challenges the court’s “general power to adjudicate
in specific areas of substantive law[.]” Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir.
1990); see also RCFC 12(b)(1). A plaintiff must establish jurisdiction by a preponderance of the
evidence. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Reynolds v. Army & Air
Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).

Mr. Turner fails to identify a money-mandating source of law that grants this Court
authority to award treble damages. Wrongful termination claims by members of the military
typically invoke the Military Pay Act as the money-mandating source of law. 37 U.S.C. § 204;
Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003). The Military Pay Act
establishes entitlements to basic pay by uniformed servicemembers. 37 U.S.C. § 204(a). For a

3
wrongful termination claim under the Military Pay Act, a plaintiff alleges that, because of the
wrongful termination, the plaintiff “is entitled to money in the form of pay that the plaintiff
would have received but for the unlawful discharge.” Martinez, 333 F.3d at 1303. If successful,
the monetary relief to which the plaintiff is entitled under the Military Pay Act is the amount of
pay that the plaintiff would have received had the wrongful termination not occurred. Id. In this
case, Mr. Turner admits, and the record reflects, that he has received all the back pay owed to
him. Pl.’s Mot. at 2; BCNR Decision, Apr. 19, 2021. Beyond his recovery of the back pay to
which he is entitled, the Military Pay Act does not provide authority for this Court to award
treble damages in the form of triple back pay. See 37 U.S.C. § 204.

Mr. Turner contends that this Court has jurisdiction to grant “treble back pay” because
this claim should be viewed “through the scope” of his wrongful termination claim, not as a
separate tort claim. See Pl.’s Mot. at 4. The Court does not agree. When analyzing a claim for
subject-matter jurisdiction, the Court must determine “the true nature of the claim” and not
simply accept the party’s assertion that the Court possesses jurisdiction. See Livingston v.
Derwinski, 959 F.2d 224, 225 (Fed. Cir. 1992) (citations omitted). Mr. Turner concedes that this
Court does not have jurisdiction over tort claims, but he argues that he is entitled to treble
damages because his “wrongful termination was made drastically worse . . . than it would have
been for a typical wrongfully terminated Plaintiff because of the aggravating factor of an
undiagnosed (by Defendant United States) traumatic brain injury.” Pl.’s Mot. at 4. He also claims
that two separate knee injuries “add to the extraordinary difficulties directly related to the
wrongful termination.” Id. at 3. While he attempts to frame his claim as an extension of his
wrongful termination claim, see id. at 7, his claim for “triple back pay” is based on alleged
medical negligence, which is a tort claim. See Utley v. United States, 813 Fed.Appx. 601, 603
(Fed. Cir. 2020) (citing Rick's Mushroom Serv., 521 F.3d at 1343) (“A claim for professional
negligence is a tort claim.”). It does not matter that he frames his claim under non-tort law
because “the essence of [his] claim lies in tort.” Cottrell v. United States, 42 Fed. Cl. 144, 149
(1998) (citing Brown, 105 F.3d at 623). The Court sympathizes with the hardships that Mr.
Turner has endured in connection with his wrongful termination, but the Court cannot exercise
jurisdiction over his claim for “treble damages” because it is founded on a tort claim.

Consequently, this Court cannot retain jurisdiction over Mr. Turner’s case because it has
been rendered moot. A case may be deemed moot “[w]hen, during the course of litigation, it
develops that the relief sought has been granted or that the questions originally in controversy
between the parties are no longer at issue[.]” Chapman Law Firm Co. v. Greenleaf Constr. Co.,
Inc., 490 F.3d 934, 939 (Fed. Cir. 2007). The BCNR granted Mr. Turner all the relief to which he
is entitled for his wrongful termination claim, and his remaining claim for “treble damages” is
outside of this Court’s jurisdiction. Therefore, the government’s motion to dismiss is
GRANTED.3

3
In his motion, Mr. Turner states that his original complaint “did ask for attorney’s fees.” See Pl.’s Mot. at 4. The
Equal Access to Justice Act (“EAJA”) permits a party to file a motion to recover attorney fees within thirty days of a
final judgment. See 28 U.S.C. § 2412(d)(1)(A); see Impresa Construzioni Geom. Domenico Garufi v. United States,
531 F.3d 1367, 1369 (Fed. Cir. 2008). A “final judgment” means a judgment rendered by a court that terminates the
civil action for which EAJA fees may be received. Melkonyan v. Sullivan, 501 U.S. 89, 96 (1991). Therefore, it
would be premature for the Court to consider Mr. Turner’s request for attorney fees prior to the entry of judgment.
Mr. Turner is not precluded from filing a motion for attorney fees at the appropriate time.

4
B. Mr. Turner’s Motions to Amend and Transfer his Complaint

The Court will not grant Mr. Turner leave to amend his complaint to add tort claims
because such an amendment would be futile. RCFC 15(a) governs amendments to pleadings. It
states that “a party may amend its pleading only with the opposing party’s written consent or the
court’s leave” and that “[t]he court should freely give leave when justice so requires.” RCFC
15(a)(2). A court, however, may deny a motion to amend a complaint if the amendment would
be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962). An amendment is futile if it would not
survive a motion to dismiss. See Kemin Foods, L.C. v. Pigmentos Vegetales Del Centro S.A. de
C.V., 464 F.3d 1339, 1354-55 (Fed. Cir. 2006) (“When a party faces the possibility of being
denied leave to amend on the ground of futility, that party must . . . proffer sufficient facts
supporting the amended pleading that the claim could survive a dispositive pretrial motion.”).
Mr. Turner seeks to add tort claims to his complaint. Pl.’s Mot. at 3 (“An amended complaint in
the present action must include torts”). As discussed supra, it is well-established that tort claims
are outside of this Court’s jurisdiction. Brown, 105 F.3d at 623 (citing Keene Corp. v. United
States 508 U.S. 200, 214 (1993)); see also 28 U.S.C. § 1491(a)(1) (excluding claims “sounding
in tort” from this Court’s jurisdiction). Because this Court lacks jurisdiction over tort claims, Mr.
Turner’s proposed amendment to add tort claims to his complaint would not survive a motion to
dismiss and, thus, would be futile.

Acknowledging that this Court would lack jurisdiction over his tort claims, Mr. Turner
alternatively argues that his tort claims could be heard if his case were retransferred back to the
District Court. See Pl.’s Mot. at 4. However, the Court finds that transfer of this case is not
appropriate. Transfer of a case requires that: (1) the transferor court lacks jurisdiction; (2) the
transfer is in the interest of justice; and (3) the case could have been brought originally in the
transferee court. See 28 U.S.C. § 1631.4 Further, once a case has been transferred, law-of-the-
case considerations disfavor retransfer of the case back to the original court except in
“exceptional circumstances” such as where the initial decision was “clearly erroneous and would
work a manifest injustice.” Rodriguez v. United States, 862 F.2d 1558, 1560 (Fed. Cir. 1988)
(quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988)).

The District Court dismissed Mr. Turner’s tort claims as barred by the Feres doctrine.
Turner, 2016 WL 7404865, at *1-2 (citing Feres, 340 U.S. at 146). Mr. Turner argues that the
Feres doctrine no longer bars his claims because the National Defense Authorization Act for
Fiscal Year 2020 (“NDAA”), codified at 10 U.S.C. § 2733 (2019), allows for claims of medical
negligence against the government. Pl.’s Mot. at 6; Pl.’s Reply at 6, ECF No. 72. This
understanding of the NDAA is incorrect. The NDAA empowered the Secretary of Defense to
establish an administrative claims process to “allow, settle, and pay a claim against the United
States for personal injury or death incident to the service of a member of the uniformed services
that was caused by the medical malpractice of a Department of Defense health care provider.” 10
U.S.C. § 2733(a). It required that the Secretary of Defense prescribe regulations to implement an
administrative claims process. 10 U.S.C. § 2733(f)(1). Such regulations, which went into effect
on July 19, 2021, establish the administrative claims process, equipped with an appeal
mechanism. 32 C.F.R. § 45 (2021). Relevant to this case, section 45.14 states:

4
Mr. Turner incorrectly cites 28 U.S.C. § 1404, see Pl.’s Mot. at 5, which authorizes a district court to transfer a
civil case, not this Court.

5
[T]he adjudication and settlement of a claim under this part is final and conclusive
and not subject to review in any court. Unlike the [Federal Tort Claims Act], the
Military Claims Act, which provides the authority for this part, does not give
Federal courts jurisdiction over claims.

32 C.F.R. § 45.14 (2021) (internal citations omitted). Thus, contrary to Mr. Turner’s contention,
the NDAA does not affect the applicability of the Feres doctrine to his tort claims nor does it
provide the District Court with jurisdiction to hear such claims. Since Mr. Turner’s tort claims
still could not have been brought originally in the District Court, his motion to transfer must be
denied because it fails the third requirement of 28 U.S.C. § 1631.

III. CONCLUSION

For the reasons above, the government’s motion to dismiss is GRANTED. Mr. Turner’s
motion to amend is DENIED. Mr. Turner’s motion to transfer is DENIED. This case is
DISMISSED WITHOUT PREJUDICE for lack of subject-matter jurisdiction under RCFC
12(b)(1). The Clerk is DIRECTED to enter JUDGMENT.

IT IS SO ORDERED.
s/ Thompson M. Dietz
THOMPSON M. DIETZ, Judge

6

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6350294. Public record. Not legal advice.