Murphy v. United States

In the United States Court of Federal Claims

No. 21-1422

(Filed: 16 June 2022)

NOT FOR PUBLICATION

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MARRITA MURPHY, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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Marrita Murphy, pro se, of Ranson, West Virginia.

Kyle S. Beckrich, Trial Attorney, with whom were Eric P. Bruskin, Assistant Director,

Martin F. Hockey, Jr., Acting Director, Brian M. Boynton, Acting Assistant Attorney General,

Commercial Litigation Branch, Civil Division, U.S. Department of Justice, all of Washington,

D.C., for the defendant.

ORDER

HOLTE, Judge.

Pro se plaintiff Marrita Murphy filed a complaint appealing the denial of her election for

former spouse survivor benefits under the Survivor Benefit Plan (“SBP”) by the Defense Finance

and Accounting Service (“DFAS”) and the Defense Office of Hearings and Appeals (“DOHA”).

The government moved to dismiss plaintiff’s claims for lack of subject matter jurisdiction

pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims. For the

following reasons, the Court grants the government’s motion to dismiss and dismisses plaintiff’s

complaint.

I. Background

A. Factual History

The Court draws the following facts from plaintiff’s filings, “accept[ing] all well-pleaded

factual allegations as true and draw[ing] all reasonable inferences in [the nonmovant’s] favor.”

Boyle v. United States, 200 F.3d 1369, 1372 (Fed. Cir. 2000); see also Hamlet v. United States,

873 F.2d 1414, 1416 (Fed. Cir. 1989) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)) (“In

passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject

matter or for failure to state a cause of action, unchallenged allegations of the complaint should

be construed favorably to the pleader.”).

Plaintiff is the former spouse of Colonel Daniel Leveille. See Compl. at 2, ECF No. 1.

Col. Leveille completed 20 years of service in the United States Air Force Reserve and became

eligible to receive retired military pay once he reached 60 years of age in 2017. Def.’s Mot.

Dismiss with App. (“Gov’t MTD”) at 2, ECF No. 9 (citing App. to Gov’t MTD (“Gov’t MTD

App.”) at 10 (4 May 2021 DOHA Reconsideration Decision)). In 2001, Col. Leveille established

Survivor Benefit Plan (“SBP”) coverage for plaintiff, his spouse at that time. Id. In 2007,

plaintiff and Col. Leveille divorced and entered into a Marriage Settlement Agreement (“MSA”).

Id. The MSA stated plaintiff would receive “1/2 of the community portion of [Col. Leveille’s]

USAF retirement with right of survivorship.” Id. In 2008, the final divorce decree incorporated

the MSA into a Domestic Relations Order (“DRO”), which the court later amended to state

plaintiff “has the option of exercising her right of survivorship.” Id.; Gov’t MTD App. at 10–11

(4 May 2021 DOHA Reconsideration Decision). In December 2008, plaintiff mailed DFAS

copies of the amended DRO, final decree of divorce, and later, copies of the MSA. Gov’t MTD

App. at 2 (10 Feb. 2021 DOHA Appeal Decision). Plaintiff then spoke with DFAS to request

SBP former spouse coverage based on the divorce documents. Id. DFAS responded by advising

plaintiff to submit her SBP former spouse coverage request to Headquarters, Air Reserve

Personnel Center. Id.

Col. Leveille remarried on 10 November 2007. Id. When Col. Leveille applied to

receive his retired pay in 2017, he updated his SBP beneficiary and “elected to cover his new

spouse under the SBP.” Id. at 11. Plaintiff became aware of the change and contacted DFAS

stating she was awarded SBP former spouse coverage in the divorce. Id. at 3. DFAS responded

to plaintiff “advising her the divorce decree on file did not award her former spouse SBP

coverage and the member had not established such coverage for her.” Gov’t MTD App. at 11 (4

May 2021 DOHA Reconsideration Decision). Plaintiff submitted a claim for SBP coverage and

“DFAS again denied her claim on the basis . . . the amended DRO . . . was insufficient to award

her former spouse SBP coverage and the member did not voluntarily elect [SBP] coverage for

her.” Id. Plaintiff then filed in a Texas state district court requesting “a new order that would

clearly direct Colonel Leveille to establish [SBP] former spouse coverage for [plaintiff].” Id. at

4 (10 Feb. 2021 DOHA Appeal Decision). The trial court denied plaintiff’s motion and stated it

lacked plenary power to amend or alter the divorce decree. 1 “The trial court concluded that there

was nothing to clarify ‘that would change anything[,]’” and the Court of Appeals for the First

District of Texas affirmed. See Murphy, 2020 WL 2120005, at *5, *9.

On 3 December 2019, a few months after the Texas Court of Appeals decision, plaintiff

appealed DFAS’ denial to DOHA. Id. DOHA denied her claim due to the “passive nature of

[the] provisions” in the amended DRO and the MSA, which it found insufficient to “direct

Colonel Leveille to make an [SBP] former spouse election.” Id. at 7–8. Plaintiff requested

1

See Murphy v. Leveille, No. 01-19-00790-CV, 2020 WL 2120005, at *7 (Tex. App. May 5, 2020) (“Any motion to

modify, correct, or reform a decree must be filed within thirty days after the date the decree is signed. See Tex. R.

Civ. P. 329b. Thereafter, the trial court may not alter, amend, or modify the substantive division of the property in

the divorce decree. See Tex. Fam. Code § 9.007. Thus, at the time of Murphy’s 2019 motion, the trial court was

without plenary power to amend or modify its 2008 Amended Final Decree and Amended DRO.”).

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reconsideration of the 10 February 2021 DOHA decision. Gov’t MTD App. at 10 (4 May 2021

DOHA Reconsideration Decision). The DOHA Claims Appeal Board held “DFAS acted

properly in refusing to accept [plaintiff’s claim]” since the “language contained in both the MSA

and the amended DRO did not direct [Col. Leveille] to take in [sic] any action in regard to

electing former spouse SBP coverage for [plaintiff].” Id. at 14. The Board stated plaintiff “may

have been awarded benefits by another federal agency,” referring to her portion of Col.

Leveille’s retired pay, but “the SBP program is a separate insurance annuity, which requires an

express election by the annuitant to provide a former spouse with benefits.” Id. at 13. Thus,

while the “amended DRO specifically set forth the details concerning [plaintiff’s] right to a

portion of [Col. Leveille’s] retired pay,” the Board “f[ound] the amended DRO . . . lack[ed] the

specificity required to deem an election for former spouse coverage.” Id. at 14. 2 The Board

further noted the amended DRO limited “payment of [plaintiff’s] portion of [Col. Leveille’s]

disposable retired pay . . . until the death of [Col. Leveille] or [plaintiff].” Id.

Col. Leveille is currently living and has not elected SBP former spouse coverage for

plaintiff. See Gov’t MTD App. at 16–19 (Department of Defense Advance Person Search,

Daniel J. Leveille). Plaintiff requests the Court: (1) “[i]ssue an order for the Defense Finance

and Accounting Service (DFAS) to enforce the Amended Final Decree of Divorce and

correspondingly awarding [plaintiff] the DFAS survivor benefit annuity”; (2) “[i]ssue an order

for DFAS to accept [plaintiff’s] timely deemed survivor benefit election” as agreed upon in the

divorce to “ensure the election perfection”; and (3) “award all costs associated with the improper

denial of [plaintiff’s] timely filed election for [SBP coverage].” Compl. at 3.

B. Procedural History

Plaintiff filed her complaint on 1 June 2021. See Compl. at 1. The government filed a

motion to dismiss on 2 August 2021. See Gov’t MTD. Plaintiff responded to the government’s

motion to dismiss on 26 August 2021. See Pl.’s Resp. Def.’s Mot. Dismiss (Pl.’s Resp. MTD”),

ECF No. 10. The government replied in support of its motion to dismiss on 13 September 2021.

See Def.’s Reply in Support of Its Mot. Dismiss (“Gov’t Reply”), ECF No. 11. On 22 September

2021, plaintiff filed a motion for leave to file a sur-reply with her sur-reply as attached as an

exhibit. Plaintiff’s Mot. to Submit Sur-Reply In Support Of Subject Matter Jurisdiction, ECF

No. 12; Plaintiff’s Sur-Reply In Support Of Subject Matter Jurisdiction (“Pl.’s Sur-Reply”), ECF

No. 12-1. The government filed a response to plaintiff’s motion for leave to file a sur-reply on

12 October 2021 and did not object to the Court granting plaintiff leave. Def.’s Resp. Pl.’s Mot.

for Leave to File Sur-Reply (“Gov’t Resp. Mot. Sur-Reply”), ECF No. 13. On 18 October 2021,

plaintiff filed a reply to the government’s response to her motion for leave to file a sur-reply.

Pl.’s Reply Def.’s Resp. Pl. Mot. for Leave to File Sur-Reply (“Pl.’s Reply Mot. Sur-Reply”),

2

See Woll v. United States, 41 Fed. Cl. 371, 373 (1998) (“In order for plaintiff to qualify as a former spouse

beneficiary, the divorce decree must have required Major Woll to provide former spouse SBP benefits to plaintiff.

Alternatively, Major Woll must have expressly designated plaintiff as a former spouse beneficiary within one year

after the date of the divorce. The SBP program is a separate insurance annuity, which requires an express election

by the annuitant to provide a former spouse with benefits.” (citing 10 U.S.C. §§ 1448(b), (d)(3)). In Woll, this court

found although the plaintiff’s divorce decree recited a right of survivorship in the military member’s pension, and

that right could refer only to SBP benefits, the designation did not expressly entitle her to SBP benefits or require the

military member to make the election for her. Id. at 374–76. The plaintiff in Woll brought her claim after the

military member had passed away. Id. at 373.

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ECF No. 14. On 16 February 2022, the Court granted plaintiff’s motion for leave to file a sur-

reply, ordered supplemental briefing to clarify six issues identified through the briefing on the

government’s motion to dismiss, and stayed consideration of the government’s motion to dismiss

until supplemental briefing concluded. See Order, ECF No. 15. On 18 March 2022, the

government filed its supplemental brief responding to the six questions in the Court’s Order. See

Gov’t Supp. Br., ECF No. 16. Plaintiff filed her response on 18 April 2022, see Pl.’s Resp.

Supp. Br., ECF No. 17, and the government filed its reply on 3 May 2022. See Gov’t Reply

Supp. Br., ECF No. 18. On 17 May 2022, plaintiff filed her sur-reply. See Pl.’s Sur-Reply Supp.

Br., ECF No. 19.

II. Parties’ Arguments on the Government’s Motion to Dismiss

A. Government’s Arguments

Pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims

(“RCFC”), the government moves to dismiss plaintiff’s complaint for lack of subject matter

jurisdiction. Gov’t MTD at 1. The government argues the Court lacks subject matter

jurisdiction over plaintiff’s claims because: (1) plaintiff “is not asking for money presently due

her from the United States” and (2) even if plaintiff receives a “portion of Col. Leveille’s retired

pay,” that does not entitle plaintiff to receive an SBP annuity because retired pay is “completely

different . . . than the SBP” and cannot “show that she is presently entitled to an SBP annuity.”

See Gov’t Reply at 2–3 (quoting Jankovic v. United States, 204 Ct. Cl. 807, 807 (1974)).

First, the government argues plaintiff “is not asking for money presently due [to her]

from the United States,” because the conditions creating a “right to compensation” under the

SBP have not occurred. Gov’t MTD at 6 (quoting Jankovic, 204 Ct. Cl. at 807 and Rood v.

United States, 63 Fed. Cl. 213, 218 (2004)). The government contends plaintiff seeks for the

“[C]ourt to adjudicate her eligibility to make a future claim for . . . money that may become

available in the future.” Id. “[A]ny annuity due to [plaintiff] under the SBP becomes effective

the first day after the death of a service member who participated in the SBP,” and Col. Leveille

is still alive. Id. at 5. The government argues several precedential cases decided by the Claims

Court, including Jankovic, 204 Cl. Ct. at 807, as well as the Federal Circuit’s Hart v. United

States, 910 F.2d 815 (Fed Cir. 1990), “support the proposition that unless Ms. Murphy can

establish she is presently entitled to the survivor annuity, she has no claim within this Court’s

jurisdiction because her complaint would be merely seeking a declaratory judgment” which this

Court does not have the authority to award. Gov’t Supp. Br. at 2.

Second, the government argues plaintiff does not have “a present entitlement to the SBP

annuity” despite “currently receiving a portion of Col. Leveille’s retired pay.” Gov’t Reply at 2.

The government states retired military pay “is a completely different statutory framework with a

different purpose than the SBP,” thus it is “incorrect” for plaintiff to “conflate retired pay with

the SBP annuity.” Id. at 2–3. The government is “not aware of any case law discussing the

differences” between retired military pay and the SBP annuity, but the “differences between the

two statutes are evident from the statutes themselves,” citing history, statutory structure, and

placement in the U.S. Code. Gov’t Supp. Br. at 4–7.

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In response to the Court’s order for supplemental briefing, the government also suggests

“Ms. Murphy could attempt to seek APA review in a court possessing APA jurisdiction.” Id. at

3. The government contends 5 U.S.C. §§ 702, 704 provides plaintiffs “suffering legal wrong

because of agency action,” or those “adversely affected or aggrieved by agency action within the

meaning of a relevant statute,” judicial review of “final agency action for which there is no other

adequate remedy in a court.” Id. If plaintiff survives Col. Leveille, the government concedes,

plaintiff would not be barred by the Tucker Act’s six-year statute of limitation because “it is not

DFAS’s denial of [plaintiff’s] former spouse deemed election [that] triggers the statute of

limitations for [plaintiff’s] claim for the SBP annuity” but rather “the death of Col. Leveille.” Id.

at 3–4, 9. The government also states if plaintiff obtains a new divorce order, DFAS’s one-year

statutory requirement should not bar plaintiff’s claim to an SBP annuity so long as plaintiff

“submits a new deemed election request and a copy of [the] new order so they are received by

DFAS within one year of the new order.” Id. at 10.

The government rejects plaintiff’s contention the claim must be presently adjudicated to

prevent future denial of SBP benefits. Gov’t Reply Supp. Br. at 2. The government makes three

arguments on this point: (1) “Col. Leveille is currently paying SBP premiums out of his retired

pay” though “the current beneficiary for the SBP is his current spouse”; (2) if plaintiff prevails

on a future claim demonstrating SBP benefits are owed, any uncollected payments will not bar

eligibility for the annuity as the outstanding premiums are merely deducted from the annuity; (3)

accepting plaintiff’s argument as true, “all her argument would prove is that Col Leveille

presently owes money to the Government, not that the Government owes any money to her.”

Id.; Department of Defense Instruction (DoDI) 1332.42, § 10.7(c)(3) (Dec. 30, 2020).

B. Plaintiff’s Arguments

Plaintiff argues this Court has subject matter jurisdiction over her claims because “all that

is required is a determination that the claim is founded upon a money mandating source and the

plaintiff has made a nonfrivolous allegation that it is within the class of plaintiffs entitled to

recover under the money-mandating source.” Pl.’s Resp. MTD at 4 (quoting Bonewell v. United

States, 87 Fed. Cl. 413, 424 (2009) and citing Jan’s Helicopter Serv., Inc. v. F.A.A., 525 F.3d

1299, 1309 (Fed. Cir. 2008)). Plaintiff contends “[t]here is no further jurisdictional

requirement.” Id. Further, plaintiff argues she has a “present right in the continued annuity,” a

portion of Col. Leveille’s retired pay, “and is supposed to continue until her death.” Pl.’s Resp.

MTD at 8. Plaintiff avers if “money presently due” is required to establish jurisdiction, plaintiff

has a “present right in the continued annuity.” Id. Thus, plaintiff alleges she is “not asking for a

determination of her status in a future retirement benefit that she [is] not currently collecting,”

rather she is “presently asking the court for money now as the security interest in the SBP

beneficiary [that] requires perfection now.” Id. at 5, 8. Plaintiff alleges she has a “right to

current compensation under the Amended Final Decree of Divorce pursuant to the money

mandating statute Uniformed Services Former Spouse’s Protection Act (USFSPA), 10 U.S.C.

Chapter[ ] 71 § 1408.” Pl.’s Sur-Reply at 1.

Plaintiff further argues that future SBP eligibility requires Col. Leveille to pay premiums

presently due and until his death. Pl.’s Resp. Supp. Br. at 6. The payments “are due and ow[ed]

by her former spouse right now.” Id. This constitutes, according to plaintiff, a current right to

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compensation sufficient to establish jurisdiction. Id. Moreover, plaintiff contends the Court

must mandate Col. Leveille maintain SBP eligibility because “if the premiums are not paid for

the SBP during her former spouse’s lifetime there could be no opportunity for Murphy to collect

a benefit at all following her former spouse’s death.” Id. Plaintiff distinguishes Hart on these

grounds, arguing the present case requires judicial review of an ongoing failure to satisfy SBP

requirements as opposed to a determination after the servicemember’s death. Pl.’s Resp. Supp.

Br. at 5; see Hart v. United States, 910 F.2d 815, 818 (Fed. Cir. 1990). Plaintiff also contends

the dispute must be presently litigated as SBP eligibility for a former spouse requires an election

within one year from the finalized divorce decree. Id. at 12; see Department of Defense

Instruction (DoDI) 1332.42, § 5.2(a)(1) (Dec. 30, 2020). If plaintiff must wait until Col. Leveille

dies to litigate the divorce decree, plaintiff argues she will be outside the one-year election

requirement and permanently barred from receiving the SBP annuity. Pl.’s Resp. Supp. Br. at

12.

Plaintiff rejects government’s contention retirement pay and SBP annuity payments are

distinct military benefits. Id. at 8. According to plaintiff, “[a] former spouse is not eligible to

receive a Survivor Benefit Plan annuity only, and not the retired pay.” Id. at 8–9. Moreover,

“[t]he retired pay of SBP participants is reduced in accordance with the type and number of

designated beneficiaries.” Id. at 8. Plaintiff argues there is no “mutual exclusivity between

retired pay and an SBP annuity in the very same retired pay” and the two should be treated as a

singular payment stream. Id. In this context, plaintiff argues the Court must “recognize the

validly of the Murphy-Leveille signed settlement agreement” which should be controlling over

the relevant statutory scheme. Id. at 11.

In support of adjudication in this Court, plaintiff also argues “the Administrative

Procedure Act . . . does not have jurisdiction over SBP elections in order to collect premiums

from a dead divorced spouse.” Pl.’s Resp. Supp. Br. at 10. Finally, plaintiff claims the DFAS

and DOHA reviews wrongfully construed her divorce settlement and required her to seek

clarification in the Texas state district court. Id. at 14. Plaintiff seeks compensation for the

associated litigation expenses amounting to $1,151.96. Id. In her sur-reply brief, plaintiff

reiterates her positions outlined in her original supplemental brief. See Pl.’s Sur-Reply Supp. Br.

III. Legal Standard of the Government’s Motion to Dismiss

A. Subject Matter Jurisdiction

In considering a motion to dismiss for lack of subject matter jurisdiction, “a judge must

accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551

U.S. 89, 94 (2007). “In determining jurisdiction, a court must accept as true all undisputed facts

asserted in the plaintiff’s complaint and draw all reasonable inferences in favor of the plaintiff.”

Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). Plaintiff “bears

the burden of establishing subject matter jurisdiction by a preponderance of the evidence.”

Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). “If the Court of

Federal Claims determines that it lacks subject matter jurisdiction, it must dismiss the claim.”

Kissi v. United States, 493 F. App’x 57, 58 (Fed. Cir. 2012) (per curiam) (citing RCFC 12(h)(3)).

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The Court of Federal Claims is a court of limited jurisdiction. Jentoft v. United States,

450 F.3d 1342, 1349 (Fed. Cir. 2006) (citing United States v. King, 395 U.S. 1, 3 (1969)). Under

the Tucker Act:

The United States Court of Federal Claims shall have jurisdiction to render judgment

upon 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)(1) (2018). Allegations must be “non-frivolous” and “founded upon a

money-mandating source.” Jan’s Helicopter Serv., Inc., 525 F.3d at 1309.

B. Pro Se Litigants

Pro se litigants are granted greater leeway than parties represented by counsel. See

Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (holding pro se complaints are held to “less

stringent standards than formal pleadings drafted by lawyers”). Despite such leeway, this Court

has long recognized “the leniency afforded to a pro se litigant with respect to mere formalities

does not relieve the burden to meet jurisdictional requirements.” Minehan v. United States, 75

Fed. Cl. 249, 253 (2007). The pro se plaintiff––like any other plaintiff––must bear “the burden

of establishing the Court’s jurisdiction by a preponderance of the evidence.” Riles v. United

States, 93 Fed. Cl. 163, 165 (2010) (citing Taylor v. United States, 303 F.3d 1357, 1359 (Fed.

Cir. 2002)). If a petitioner acts pro se in the drafting of her pleadings, it “may explain its

ambiguities, but it does not excuse its failures, if such there be.” Henke v. United States, 60 F.3d

795, 799 (Fed. Cir. 1995).

IV. Analysis of the Court’s Jurisdiction Over Plaintiff’s Claim

A. The Court’s Jurisdiction is Limited to Claims Seeking Actual, Presently Due

Money Damages

Throughout its entire history, “the only judgments which the Court of Claims [has been]

authorized to render against the government . . . are judgments for money found due from the

government to the petitioner.” United States v. Alire, 73 U.S. 573, 575 (1867); United States v.

King, 395 U.S. 1, 2 (1969). In United States v. King, the Supreme Court “articulated the now-

canonical principle that a plaintiff must present a claim for ‘actual, presently due money

damages from the United States’ to fall within the jurisdictional reach of the [Court of Federal

Claims].” Speed v. United States, 97 Fed. Cl. 58, 66 (2011) (quoting King, 395 U.S. at 3). Less

than a decade later, the Supreme Court in United States v. Testan, 424 U.S. 392, 398 (1976),

restated the standard established in King: Court of Federal Claims jurisdiction extends only to

claims for “actual, presently due money damages from the United States.”

The “actual, presently due” standard is “both substantial and important” because relief

outside “actual, presently due money damages from the United States” has historically never

been within this Court’s jurisdiction.” King, 395 U.S. at 2–4. The Federal Circuit has declared,

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“[t]he basic rule that the Supreme Court announced in King is still in effect and has not been

changed by subsequent legislation.” Nat’l Air Traffic Controllers Ass’n v. United States, 160

F.3d 714, 716 (Fed. Cir. 1998) (citations omitted).

B. When Monetary Relief Becomes Presently Due

“A cause of action cognizable in a Tucker Act suit accrues as soon as all events have

occurred that are necessary to enable the plaintiff to bring suit, i.e., when ‘all events have

occurred to fix the Government’s alleged liability, entitling the claimant to demand payment and

sue . . . for his money.’” Jones v. United States, 7 F.4th 1376, 1379 (Fed. Cir. 2021), opinion

modified and superseded on reh’g, 30 F.4th 1094 (Fed. Cir. 2022) (quoting Martinez v. United

States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc)). The government’s alleged liability is

fixed when plaintiff’s claim is “for money presently due, not requiring further action on anyone’s

part to create the entitlement thereto.” Gentry v. United States, 546 F.2d 343, 346 (Ct. Cl. 1976).

This Court’s jurisdiction extends to only claims in which the government’s alleged liability is

fixed. See Martinez, 333 F.3d at 1303.

When plaintiffs seek an alleged government benefit, such as an SBP annuity, plaintiffs

become “eligible to receive SBP annuity benefits” when “all events fixing the government’s

liability to [the service member’s beneficiary] ha[ve] occurred.” Hart v. United States, 910 F.2d

815, 818 (Fed. Cir. 1990) (quoting Kinsey v. United States, 852 F.2d 556, 557 (Fed. Cir. 1988)

and Oceanic S.S. Co. v. United States, 165 Ct. Cl. 217, 225 (1964)). In Hart, because plaintiff’s

late husband, Sergeant Hart, “was enrolled in the [SBP], only one contingency remained before

plaintiff became eligible to receive SBP annuity benefits, i.e., Sergeant Hart’s death.” Id. “As

the statute specifically states, the annuity became due and payable to plaintiff the day after her

husband’s death. Therefore, on the day after Sergeant Hart’s death, all events fixing the

government’s liability to his widow had occurred.” Id. The Court’s Hart decision accords with

Carman v. United States, 221 Ct. Cl. 165, 168 (1979) where the Court held it lacked jurisdiction

over a claim for sick leave credits brought by a current federal employee because the “mere

crediting of sick leave to an employee’s account . . . confers no present right to payment[.]” Id.

(“Where no money damages are presently due and owing, this court does not have jurisdiction

over such a claim standing alone, Jankovic v. United States, 204 Ct. Cl. 807 (1974), for any

judgment would be is the nature of a declaratory judgment which this court has no power to

grant in the situation.” (citing King, 395 U.S. at 3)). Until “all the events have occurred which

fix the liability of the United States and entitle the claimant to institute an action thereon,” which

includes the death of a service member for SBP annuities, a plaintiff’s claim “has not accrued.”

Baker v. United States, 614 F.2d 263, 271 (Ct. Cl. 1980); see also Hart, 910 F.2d at 818.

This Court must reject “cart before the horse argument[s].” Bronger v. Off. of Pers.

Mgmt., 740 F.2d 1552, 1556 n.14 (Fed. Cir. 1984), on reh’g, 769 F.2d 756 (Fed. Cir. 1985); cf.

Brown Park Ests.-Fairfield Dev. Co. v. United States, 127 F.3d 1449, 1455 (Fed. Cir. 1997) (“At

each of these specific points in time [when the government failed to make a payment] the

government’s liability was fixed and appellants were entitled to institute an action.”). Thus, if a

claim for adjudication “rests upon ‘contingent future events that may not occur as anticipated, or

indeed may not occur at all,’” First Data Corp. v. Inselberg, 870 F.3d 1367, 1375 (Fed. Cir.

2017) (quoting Texas v. United States, 523 U.S. 296, 300 (1998)), plaintiff’s “request for relief is

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premature” and not within the jurisdiction of this Court. Prentiss v. United States, 115 Ct. Cl.

78, 78 (1949).

C. Whether Monetary Relief is Presently Due to Plaintiff

Plaintiff advances numerous arguments throughout her briefing in support of the Court

having jurisdiction over her claims. The Court addresses each in turn below.

Plaintiff argues “[t]here is no further jurisdictional requirement that the court

determine[s]” beyond “that the claim is founded upon a money mandating source and the

plaintiff has made a nonfrivolous allegation that it is within the class of plaintiffs entitled to

recover under the money-mandating source.” Pl.’s Resp. MTD at 4 (quoting Jan’s Helicopter

Serv., Inc., 525 F.3d at 1309). Plaintiff contends she meets the Court’s jurisdictional bar because

the “[SBP] is a money mandating statute” and plaintiff is “a member of a class eligible to request

a security interest in the SBP deemed election.” Id. at 3.

As an initial matter, it is unclear whether plaintiff is “within the class of plaintiffs entitled

to recover” under the SBP statutes. Jan’s Helicopter Serv., Inc., 525 F.3d at 1309. Col. Leveille

is still living, he has not elected plaintiff as his SBP beneficiary, and three different tribunals

have denied plaintiff’s claim on five separate occasions. See Gov’t MTD App. at 16–19

(Department of Defense Advance Person Search, Daniel J. Leveille); Id. at 11, 15 (4 May 2021

DOHA Reconsideration Decision affirming the denial of her appeal and detailing the rejections

of plaintiff’s claim by DFAS and state court); 10 U.S.C. § 1450(a)(1) (2018) (SBP payments

become “[e]ffective as of the first day after the death of [the service member] . . . paid to the

person’s beneficiaries”). Assuming, arguendo, plaintiff meets the jurisdictional hurdle described

in Jan’s Helicopter Serv., Inc. regardless, the case did not displace, or even address, the Supreme

Court’s “actual, presently due money” requirement for this Court to hear a claim. See Jan’s

Helicopter Serv., Inc., 525 F.3d at 1305, 1309 (discussing whether “appellants’ claims fall within

the terms of the Tucker Act’s waiver of sovereign immunity, even if those claims are frivolous

on the merits”); King, 395 U.S. at 3; Testan, 424 U.S. at 397. The Supreme Court has explicitly

and repeatedly stated this Court may only hear claims for “actual, presently due money damages

from the [government].” King, 395 U.S. at 3; Testan, 424 U.S. at 397. Thus, the “nonfrivolous

allegation” stemming from a “money-mandating source” requirement coexists with the “actual,

presently due” money requirement; it does not replace it. See Jan’s Helicopter Serv., Inc., 525

F.3d at 1309.

Plaintiff contends her amended final decree of divorce establishes a “right to current

compensation” based on receiving a portion of Col. Leveille’s retired pay under the Uniformed

Services Former Spouses’ Protection Act (USFSPA). Pl.’s Sur-Reply at 1; 10 U.S.C. § 1408.

Even if the SBP annuities are technically distinct from USFSPA’s “method of payment,”

plaintiff argues, “[i]t is irrelevant if the government pays the claim from the left pocket or the

right pocket.” Pl.’s Sur-Reply at 2. In response, the government contends SBP annuities are

distinct from military pay; thus an “award of a portion of a member’s disposable retired pay

under the USFSPA does not mean the former spouse is entitled to an SBP annuity, and vice

versa.” Gov’t Supp. Br. at 6.

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To determine if SBP entitlement stems from or connects to retired pay entitlement, the

Court “must examine further the actual differences in the two statutory schemes.” Beer v. United

States, 696 F.3d 1174, 1183 (Fed. Cir. 2012). “The purpose of the Survivor Benefit Plan is to

fund an annuity paid to a surviving spouse [or former spouse] and dependent children upon the

servicemember’s death . . . .” Sumakeris v. United States, 34 Fed. Cl. 246, 252 (1995), aff’d, 95

F.3d 1163 (Fed. Cir. 1996) (emphasis added). The purpose of the USFSPA is to “permit an ex-

spouse to share in a portion of the service member’s retired pay” while the servicemember is

alive and receiving retired pay. Fern v. United States, 15 Cl. Ct. 580, 590 (1988), aff’d, 908 F.2d

955 (Fed. Cir. 1990). Congress created the SBP “to correct an anomaly in the otherwise

comprehensive military benefits program which left survivors of retired military personnel

without any source of income if a retired serviceman died” because the “right to retired pay of a

member of the armed services terminates upon his death.” Barber ex. rel. Barber v. United

States, 676 F.2d 651, 654 (Ct. Cl. 1982); 48 Comp. Gen. 706, 707 (Apr. 25, 1969); 10 U.S.C.

§ 1408. The SBP is governed by an “elaborate statutory scheme” found in 10 U.S.C. §§ 1447–

1455, Woll, 41 Fed. Cl. at 375, whereas USFSPA is found in 10 U.S.C. § 1408, see Kelly v.

United States, 826 F.2d 1049, 1050 (Fed. Cir. 1987). What creates an entitlement to retired pay

is distinct from the requirements to secure SBP entitlement, and what makes retired pay

presently due is distinct from what makes SBP annuities presently due. Compare Schussler v.

United States, 152 Fed. Cl. 207, 209 (2021) (“[F]or a surviving spouse of a veteran to receive

SBP, the veteran must have been eligible for retirement[,] . . . have chosen SBP coverage[,] . . .

and have paid premiums for the benefit[.]” (quoting Sharp v. United States, 580 F.3d 1234,

1236–37 (Fed. Cir. 2009))); with Monroe v. United States, 143 Fed. Cl. 315, 319 (2019) (“The

Uniformed Services Former Spouses’ Protection Act provides that the Department of Defense

must commence payments upon. . . receipt of a court order that is facially valid, identifies the

service-member, and complies with the Servicemember Civil Relief Act[.]”). Thus, a plaintiff’s

divorce decree may authorize him or her to obtain support, alimony, and division of military

retired pay pursuant to § 1408, but because the SBP is a “separate insurance annuity,” the “SBP

benefits do not fall under any of [the] categories” listed in § 1408. See Woll, 41 Fed. Cl. at 375

(holding a service member’s former spouse could be entitled to her ex-husband’s retirement pay

and also ineligible for SBP annuities for failure to meet the SBP’s specific requirements); Pence

v. United States, 52 Fed. Cl. 643, 648 (2002). SBP annuities are thus distinct from former

spouse retired pay under USFSPA. See Woll, 41 Fed. Cl. at 375.

Plaintiff nonetheless contends Barber ex. rel. Barber v. United States, 676 F.2d 651 (Ct.

Cl. 1982), supports this Court’s exercise of jurisdiction to adjudicate her possible entitlement to

SBP annuities. See Pl.’s Resp. MTD at 8. Barber states, “payment of a monthly annuity to the

beneficiaries of each [SBP] participant is provided for in section 1450,” and the “failure to pay

these monthly annuities would give rise to a claim in this [C]ourt since the claimant would be

suing for money improperly withheld . . . .” Barber, 676 F.2d at 654. Plaintiff argues Barber is

on point with this case and establishes her right to ensure a portion of Col. Leveille’s retired pay,

which she is currently collecting, “continue[s] until her death.” Pl.’s Resp. MTD at 8. Plaintiff’s

own quotation from Barber explains exactly the distinction with her position—“failure to pay

these monthly annuities would give rise to a claim.” Pl.’s Resp. MTD at 8 (quoting Barber, 676

F.2d at 654) (emphasis added). Even assuming the retirement pay plaintiff currently receives is

the same as the SBP annuity plaintiff seeks—and as established above, it is not—plaintiff states

repeatedly she “is currently receiving the annuity.” Id. at 2. Barber “[q]uite clearly” states it is

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the “failure to pay” which gives rise to a claim, and plaintiff does not allege any such lapse in

payment has occurred. Barber, 676 F.2d at 654. Plaintiff likewise does not contend Col.

Leveille has passed away, a necessary prerequisite for SBP payments. 10 U.S.C. § 1450(a)(1)

(2018). Furthermore, Barber is distinguishable from this case. The jurisdictional issue in

Barber was not whether plaintiffs sought presently due money but whether the violation of the

statute outlining SBP coverage could be “fairly said to give rise to a claim for money damages.”

Barber, 676 F.2d at 654. Plaintiff’s case differs from Barber in a critical way—money could be

presently due to the plaintiffs in Barber because the service member establishing their SBP

coverage had already died. Id. at 653. Plaintiff’s claim cannot be for money presently due

because Col. Leveille is living. See Gov’t MTD at 26; see also Hart, 910 F.2d at 818; Woll, 41

Fed. Cl. at 375.

Plaintiff maintains her divorce decree should control even if the SBP statutory scheme is

distinct from the USFSPA statutory scheme. Pl.’s Resp. Supp. Br. at 11. Plaintiff’s

interpretation of the Murphy-Leveille settlement agreement requires monthly payments until her

death. Id. at 10. To guarantee continued monthly payments pursuant to this interpretation,

plaintiff argues the Court must ignore the statutory distinction and require SBP annuity benefits.

Id. at 11. Matters of military pay, however, are determined by statutory right. See United States

v. Larionoff, 431 U.S. 864, 869 (1977) (citing Bell v. United States, 366 U.S. 393, 401 (1961))

(holding that servicemember benefits “must be determined by reference to the statutes and

regulations”). Even if the Court were to adopt plaintiff’s interpretation of the divorce decree—a

question the Court does not address—the divorce decree cannot override the relevant statutory

provisions. Id. The Court, therefore, rejects plaintiff’s argument and holds that any

determination regarding plaintiff’s entitlement to military benefits vis-à-vis Col. Leveille “must

be determined by reference to the statutes and regulations.” Id.

Plaintiff also contends “the government inappropriately applies Jankovic” to plaintiff’s

“SBP security interest perfection” because she is “not asking for a determination of her status in

a future retirement benefit that she is not currently collecting.” Pl.’s Resp. MTD at 8. In

Jankovic, plaintiff was “currently serving as an employee of the Department of State” and asked

this Court to “compel the [government] to properly credit him with the full period of his

employment service for the purpose of computing his retirement benefits.” Jankovic, 204 Ct. Cl.

at 807. The Court held it lacked jurisdiction because “plaintiff [was] not asking for money

presently due him from the United States” as he had not yet retired. Id. (citing King, 395 U.S. at

3 and Prentiss, 115 Ct. Cl. at 81). “If the cause of action [in the Court of Federal Claims] ever

accrues, it will do so only when plaintiff is presently entitled to retirement benefits.” Id; see also

Carman, 602 F.2d at 948; Baker, 614 F.2d at 271.

SBP payments become “[e]ffective as of the first day after the death of [the service

member]” if the statutory requirements are met. Hart, 910 F.2d at 818 (quoting Kinsey, 852 F.2d

at 557); see Rood v. United States, 63 Fed. Cl. 213, 218 (2004); 10 U.S.C. § 1448(b)(7)(A)

(2018). An “interest in the Survivor Benefit Plan only accrues if [the service member] elects to

pay a portion of his benefits into the Plan annuity for [the child, spouse, or former spouse’s]

benefit . . . and if [the service member] then predeceases [the beneficiary].” Rood, 63 Fed. Cl. at

218 (citing 10 U.S.C. §§ 1452, 1450 (2018)). If “neither of these conditions have occurred, [the

beneficiary] does not have any current right to compensation.” Id. Even if the possibility of

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receiving the annuity “has value” and may accrue in the future, Pl.’s Resp. MTD at 5, “one must

meet the statutory requirements for there to be any entitlement.” Holt v. United States, 64 Fed.

Cl. 215, 223, dismissed, 159 F. App’x 1004 (Fed. Cir. 2005). Plaintiff attempts to distinguish her

claims from Jankovic and similar cases by conflating the retirement pay she currently receives

with SBP annuities. See Pl.’s Resp. MTD at 8. The retirement pay plaintiff currently receives,

as established above, is distinct from the SBP annuity; thus, entitlement to a continued portion of

Col. Leveille’s retired pay cannot give rise to an entitlement to SBP annuities. See Woll, 41 Fed.

Cl. at 375. Col. Leveille is alive which leaves at least one of the required conditions to receive

SBP annuities unsatisfied. See Hart, 910 F.2d at 818. Plaintiff, like the employee in Jankovic,

asks this Court to grant relief where the cause of action has not yet accrued, and this Court lacks

jurisdiction to do so. Id.; see Baker, 614 F.2d at 271.

Plaintiff asserts that her claim must be presently litigated because future SBP eligibility is

contingent upon premiums Col. Leveille must pay now. Pl.’s Resp. Supp. Br. at 6. According to

plaintiff, this satisfies the Supreme Court’s “actual, presently due money” requirement. King,

395 U.S. at 3; see Jan’s Helicopter Serv., Inc., 525 F.3d at 1305, 1309. For the Court to have

jurisdiction, the underlying litigation must be “for money found due from the government to the

petitioner.” Alire, 73 U.S. at 575 (emphasis added); King, 395 U.S. at 2. Plaintiff’s request,

however, would require the Court to mandate Col. Leveille pay premiums to the government.

This would not be a claim for money “from the government to the petitioner,” and therefore does

not meet the Court’s jurisdictional requirement. Alire, 73 U.S. at 575. Moreover, records

indicate that Col. Leveille is currently paying SBP premiums, but has elected his current spouse

as his beneficiary. Gov’t Reply Supp. Br. App. at 1. As such, the only remedy satisfying

plaintiff’s prayer for relief would be a mandate that Col. Leveille change his currently elected

SBP beneficiary. This amounts to a request for declaratory judgement, not monetary relief,

which likewise falls outside the jurisdictional purview of the Court. See Alire, 73 U.S. at 575;

King, 395 U.S. at 2, 5.

Plaintiff argues that DFAS and DOHA misconstrued her divorce decree and the Court

should overturn the DFAS and DOHA decisions and require Col. Leveille elect plaintiff as his

SBP beneficiary. Pl.’s Resp. Supp. Br. at 10; but see Woll, 41 Fed. Cl. 371 (holding that

“survivorship rights” in the language of a divorce decree was insufficient to require an SPB

former spouse election, even when the language was unambiguous and could only refer to SPB

benefits). Review of these agency determinations, without “actual, presently due money

damages from the [government],” King, 395 U.S. at 3, could only be pursuant to the

Administrative Procedures Act. See 5 U.S.C § 702 (2018). The Court therefore cannot review

the DFAS and DOHA decisions at this stage as the Court of Federal Claims “lacks the general

federal question jurisdiction of the district courts, which would allow it to review the agency’s

actions and to grant relief pursuant to the Administrative Procedure Act[.]” Crocker v. United

States, 125 F.3d 1475, 1476 (Fed. Cir. 1997).

D. Summary of Jurisdiction and Government Supplemental Contentions

If plaintiff’s claim eventually accrues, the government’s supplemental briefing concedes

plaintiff’s cause of action in this Court will not be barred by the Tucker Act’s six-year statute of

limitations so long as plaintiff files within six years of Col. Leveille’s death as “it is not DFAS’s

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denial of [plaintiff’s] former spouse deemed election request that triggers the statute of

limitations . . . [, r]ather, . . . [it] is the death of Col. Leveille.” Gov’t Supp. Br. at 9. If plaintiff

seeks review of DFAS’s denial before she can seek relief in this Court, the government suggests

plaintiff could “attempt to seek APA review in a court possessing APA jurisdiction.” Id. at 3. A

court possessing APA jurisdiction, the government contends, may serve as a viable avenue for

review because the APA provides plaintiffs “suffering legal wrong because of agency action,” or

those “adversely affected or aggrieved by agency action within the meaning of a relevant

statute,” judicial review of “final agency action for which there is no other adequate remedy in a

court.” Id. (quoting 5 U.S.C § 702). Although obtaining an amended divorce order is unlikely

due to time bars under Texas law, the government also states if plaintiff obtains a new or

amended divorce order, DFAS’s one-year statutory requirement should not bar plaintiff’s claim

to an SBP annuity so long as plaintiff “submits a new deemed election request and a copy of

[the] new order so they are received by DFAS within one year of the new order.” Id. at 7–10;

see also Tex. R. Civ. P. 329b.; Tex. Fam. Code § 9.007.

Even if it “could not be any clearer” plaintiff was to be Col. Leveille’s SBP beneficiary,

Compl. at 2, plaintiff’s claim for monetary relief is based on “contingent future events that may

not occur as anticipated, or indeed may not occur at all,” which puts plaintiff’s claim outside this

Court’s jurisdiction. First Data Corporation, 870 F.3d at 1375 (quoting Texas v. United States,

523 U.S. 296, 300 (1998)); see also Hart, 910 F.2d at 818. As the Court lacks jurisdiction over

plaintiff’s claim, the Court does not reach the merits of the DFAS and DOHA decisions, and

accordingly does not reach plaintiff’s request for state court litigation expenses resulting from

those decisions. See Pl.’s Resp. Supp. Br. at 14. For the foregoing reasons, the Court grants the

government’s motion to dismiss.

V. Conclusion

The Court has considered all of plaintiff’s arguments. To the extent not discussed

specifically herein, plaintiff’s other arguments are unpersuasive, meritless, or unnecessary for

resolving the issues currently before the Court. Plaintiff fails to establish subject matter

jurisdiction. The Court GRANTS the government’s motion to dismiss and DISMISSES

plaintiff’s complaint. The Clerk is DIRECTED to enter judgment dismissing plaintiff’s

complaint.

IT IS SO ORDERED.

s/ Ryan T. Holte

RYAN T. HOLTE

Judge

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