Eric Martin Matthews v. United States

In the United States Court of Federal Claims

No. 10-648C

(Filed May 7, 2013)

NOT FOR PUBLICATION

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ERIC MARTIN MATTHEWS, *

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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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MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

Plaintiff, Eric Matthews, filed this suit pro se on September 27, 2010, seeking

back pay and retirement pay under the theory that he was never properly

discharged from the Navy and, thus, is owed additional pay. See Compl. Mister

Matthews also seeks to change the characterization of his military service from

“other than honorable” to “honorable.” See id. ¶¶ 102-03. In response to a

document produced by the government in May of 2012, which plaintiff contends is

fraudulent, Mr. Matthews has also moved for a preliminary injunction to prohibit

the Navy from producing any additional documents without the Court’s permission.

See Pl.’s Mot. for Prelim. Inj. The government has moved to dismiss this case under

Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal

Claims (“RCFC”). See Def.’s Mot. to Dismiss (“Def.’s Mot.”). For the reasons stated

below, the Court GRANTS the government’s motion to dismiss and DENIES Mr.

Matthews’s motion for a preliminary injunction.

I. BACKGROUND

Mister Matthews enlisted in the Navy in 1990. See Ex. B, pt. 1 to Compl. at

3. On September 29, 2006, he was arrested on charges of computer pornography

and solicitation of a child. See Ex. B, pt. 2 to Compl. at 112. In 2007, he pled guilty

to coercion and enticement in violation of 18 U.S.C. section 2422(b) and distribution

of child pornography in violation of 18 U.S.C. section 2252(a)(2), and was sentenced

to prison by the United States District Court for the Southern District of Florida.

See Ex. B, pt. 2 to Compl. at 109. Since his conviction, Mr. Matthews has been

serving a federal prison sentence of twenty-one years and ten months. See id. at

114. Shortly after his conviction, the Navy initiated the process of administratively

separating Mr. Matthews from the Navy. See id. at 110. On June 6, 2007, an

administrative separation board met to consider his case, Compl. ¶ 64, and voted to

discharge Mr. Matthews with an “other than honorable” characterization of service,

Ex. B, pt. 2 to Compl. at 115-17. Mister Matthews contends that he was never

properly discharged from the Navy, and that as a result, he is owed back pay for the

time he has spent in prison and retirement pay because he was not properly

discharged before passing his twenty-year retirement benchmark. See, e.g., Compl.

¶¶ 100-103. The thrust of his complaint seems to be that the Navy had not issued a

Department of Defense Form 214 (“DD-214”) to him, and committed a variety of

other procedural errors --- with the result that he was never properly discharged.

See Compl. ¶ 103; Pl.’s Mot. for Prelim. Inj.

Mister Matthews’s complaint and his subsequent brief in opposition to the

government’s motion to dismiss raise several allegations. First, Mr. Matthews

contends that the Navy failed to follow its own regulations in numerous respects

related to his separation processing. For example, the complaint alleges that the

Navy did not provide proper notice to plaintiff of his separation processing, Compl.

¶¶ 59-62, 97; did not provide plaintiff with the opportunity to participate at his

separation hearing, Compl. ¶¶ 64, 96; failed to provide constitutional due process,

Compl. ¶ 47; failed to provide plaintiff with a transcript or recording of the

separation board proceeding, Compl. ¶¶ 66-67; did not appropriately maintain

plaintiff’s service record, Compl. ¶¶ 68-71; did not properly respond to plaintiff’s

complaints regarding his separation proceedings, Compl. ¶¶ 72-84; and failed to

issue a DD-214 to him, in violation of Navy regulations, Compl. ¶¶ 22, 24, 90.

Mister Matthews also alleges that his administrative separation board acted

arbitrarily and capriciously, Compl. ¶¶ 64-65, and that the Board for Correction of

Naval Records and the Naval Discharge Review Board improperly failed to correct

his record, Compl. ¶¶ 28-33, 87-92. Based upon these alleged procedural violations,

Mr. Matthews contends that he was not properly discharged from the military and

is, therefore, entitled to back pay. See Compl. ¶¶ 17-24, 46, 100, 103.1 In addition,

because it has been more than twenty years since Mr. Matthews enlisted in the

Navy, and because he was allegedly never properly discharged, Mr. Matthews

argues that he is entitled to retirement pay, also known as retainer pay. See id.

1 Mister Matthews argues both that he was never discharged, and alternatively,

that if he was in fact discharged, the discharge was improper and he is entitled to a

retroactive reinstatement. See Compl. ¶¶ 17-24, 46, 100, 103; Pl.’s Reply to Def.’s

Mot. to Dismiss at 4.

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While the back pay and retainer pay claims form Mr. Matthews’s primary

allegations, he also alleges that the characterization of his military service as “other

than honorable” was improper and should be corrected by this court. See Compl.

¶¶ 30, 52, 103. Mister Matthews makes a number of other claims under the

Government in the Sunshine Act, 5 U.S.C. § 552b, the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552, the Military Whistleblower Protection Act, 10 U.S.C.

§ 1034, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. See Compl.

¶¶ 66, 68-69, 79-81, 93-95. Plaintiff also requested in his complaint that the Court

instruct the Navy to redraft several of its regulations and change its interpretation

of certain federal statutes. See Compl. ¶ 102. In his response to the government’s

motion to dismiss, Mr. Matthews explains that these non-monetary claims are

merely offered in support of his claims brought under the Military Pay Act. See Pl.’s

Reply to Def.’s Mot. to Dismiss (“Pl.’s Reply”) at 9 (citing 37 U.S.C. § 204).

With respect to plaintiff’s claims which are not based on money-mandating

statutes, the government argues in its motion to dismiss that the Court lacks

subject-matter jurisdiction. See Def.’s Mot. at 8-9. Regarding plaintiff’s claim for

back pay for the time he has spent in prison, the government argues that plaintiff

cannot state a claim for back pay under the Military Pay Act, 37 U.S.C. § 204(a),

and the Tucker Act, 28 U.S.C. § 1491, because servicemen in civilian confinement

forfeit all pay and allowances for their period of confinement pursuant to 37 U.S.C.

section 503 and Department of Defense Financial Management Regulation, volume

7A, chapter 1, Tables 1-12. See id. at 10-12. The government also argues that

plaintiff cannot state a claim for retainer pay because he has not attained twenty

years of active duty service, as is required to receive such pay. See id. at 10, 12-14.

Finally, the government contends that because plaintiff cannot state a claim for

monetary relief, the Court does not have jurisdiction to address the alleged

procedural violations that plaintiff identifies in connection with his separation

processing, and that the Court cannot grant the equitable relief that plaintiff seeks.

See id. at 14.

In response, Mr. Matthews contends that he has stated a claim for back pay

and retirement pay, and repeats his argument that since he was never properly

discharged from the Navy, his time in prison should count as active duty service for

which he is entitled to pay. See Pl.’s Reply. Mister Matthews also alleges that no

DD-214 was issued as of September 18, 2010 --- the time at which he would have

reached his twenty-year retirement benchmark --- and that he is, therefore, entitled

to retainer pay as well.2 See id. at 6-7. Mister Matthews also references the

2 It is also plaintiff’s opinion that the DD-214 produced by the Navy in May of 2012

is fraudulent. See Pl.’s Mot. for Prelim. Inj. In particular, although the DD-214

purports to be an “administratively re-issued” DD-214, plaintiff argues that this is a

misleading description since he allegedly never received an original DD-214. See

id.; Joint Mot. for Status Conference (June 26, 2012).

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constructive service credit doctrine in his response, noting that under that doctrine,

members of the military who have been improperly released from duty without a

proper discharge are deemed to have served during the time period following their

illegal release. See Pl.’s Reply at 4. In a later-filed surreply, Mr. Matthews argues

that the Military Pay Act takes precedence over the regulatory provision which

prohibits servicemen in civilian confinement from being paid for time spent in

confinement. See Pl.’s Surreply (ECF No. 62-1).

II. DISCUSSION

Under RCFC 12(b)(1), claims brought before this Court must be dismissed

when it is shown that the Court lacks jurisdiction over their subject matter. When

considering a motion to dismiss for lack of subject-matter jurisdiction, the Court will

normally accept as true all factual allegations made by the pleader and draw all

reasonable inferences in the light most favorable to that party. See Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974); Pixton v. B&B Plastics, Inc., 291 F.3d 1324, 1326

(Fed. Cir. 2002) (requiring that on a motion to dismiss for lack of subject-matter

jurisdiction the court views “the alleged facts in the complaint as true, and if the

facts reveal any reasonable basis upon which the non-movant may prevail,

dismissal is inappropriate”); CBY Design Builders v. United States, 105 Fed. Cl.

303, 325 (2012).

While pro se plaintiffs’ filings are to be liberally construed, see Erickson v.

Pardus, 551 U.S. 89, 94 (2007), this lenient standard cannot save claims which are

outside our jurisdiction from being dismissed. See, e.g., Henke v. United States, 60

F.3d 795, 799 (Fed. Cir. 1995). Because the Tucker Act, 28 U.S.C. § 1491, does not

create any substantive rights, a plaintiff must identify a separate source of law that

creates a right to money damages for his claims to be within our jurisdiction. Jan’s

Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1306 (Fed. Cir. 2008) (quoting Fisher v.

United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part)). The

test for determining whether a statute or regulation can support jurisdiction in our

court is whether it can be fairly interpreted as mandating compensation. See, e.g.,

United States v. White Mountain Apache Tribe, 537 U.S. 465, 472-73 (2003); United

States v. Mitchell, 463 U.S. 206, 216-17 (1983); Fisher, 402 F.3d at 1173-74;

Contreras v. United States, 64 Fed. Cl. 583, 588-92 (2005).

Plaintiff’s allegations based on the Government in the Sunshine Act, 5 U.S.C.

§ 552b, FOIA, 5 U.S.C. § 552, the Military Whistleblower Protection Act, 10 U.S.C.

§ 1034, and the APA, 5 U.S.C. § 706, do not fall within the Court’s jurisdiction

because they are not based on money-mandating statutes, regulations, or

constitutional provisions that would support our jurisdiction under the Tucker Act.

See, e.g., Pan Am. World Airways, Inc. v. Civil Aeronautics Bd., 684 F.2d 31, 36

(D.C. Cir. 1982) (noting “release of transcripts, not invalidation of the agency's

substantive action, shall be the normal remedy for Sunshine Act violations”);

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McNeil v. United States, 78 Fed. Cl. 211, 237 (2007) (dismissing FOIA claims

because “FOIA lacks any money-mandating provisions”); Gant v. United States, 63

Fed. Cl. 311, 316 (2004) (noting that the Military Whistleblower Protection Act is

not money-mandating for purposes of Tucker Act jurisdiction); Wopsock v. Natchees,

454 F.3d 1327, 1333 (Fed. Cir. 2006) (noting that the APA is not money-mandating).

In addition, the Court does not have jurisdiction to grant plaintiff’s request that the

Court direct the Navy to redraft its regulations and change its interpretation of

certain federal statutes. See Yeskoo v. United States, 34 Fed. Cl. 720, 731 (1996)

(explaining that this Court is one of limited jurisdiction and cannot “rewrite a

statute, regulation, or government contract” in order to effectuate a particular

result).

Turning to plaintiff’s claims for back pay, there is no question that a money-

mandating statute provides the basis for our Court’s subject-matter jurisdiction.

This Court’s and the Federal Circuit’s precedents acknowledge that 37 U.S.C.

section 204(a) entitles full-time active duty service members to the pay of the rank

to which they are assigned until they are properly separated from the service. See

37 U.S.C. § 204(a); Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997)

(“[i]t is well established that 37 U.S.C. § 204 . . . serves as the money-mandating

statute applicable to military personnel claiming damages”); Sanders v. United

States, 594 F.2d 804, 810 (Ct. Cl. 1979) (37 U.S.C. § 204 “confers on an officer the

right to pay of the rank he was appointed to up until he is properly separated from

the service”). Nonetheless, Mr. Matthews must still state a claim upon which relief

can be granted. See RCFC 12(b)(6). “To survive a motion to dismiss [for failure to

state a claim], a complaint must contain sufficient factual matter, accepted as true,

to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A

claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In making the

determination of whether to grant a Rule 12(b)(6) motion, the court “must accept as

true all the factual allegations in the complaint” and make “all reasonable

inferences in favor of the non-movant.” Sommers Oil Co. v. United States, 241 F.3d

1375, 1378 (Fed. Cir. 2001).

Here, Mr. Matthews cannot state a claim for back pay under 37 U.S.C.

section 204(a) because he is precluded from obtaining back pay and allowances

while in civilian confinement by 37 U.S.C. section 503 and the corresponding

Department of Defense regulations. See 37 U.S.C. § 503; Department of Defense

Financial Management Regulation, vol. 7A, chapter 1, Tables 1-12; Stone v. United

States, 219 Ct. Cl. 604, 605-06 (1979) (holding that incarcerated serviceman was

“precluded by 37 U.S.C. § 503(a) from prevailing on his claim for back pay and

allowances” because his absence from duty could not be excused as unavoidable).

While active duty servicemen are “entitled to the basic pay of the pay grade to

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which [they are] assigned,” 37 U.S.C. § 204(a), a plaintiff must allege that he is

“entitled to money in the form of the pay that he would have received but for the

unlawful discharge” in order to state a claim over which this Court has jurisdiction.

Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc) (emphasis

added). A service member, however, “who is absent without leave or over leave,

forfeits all pay and allowances for the period of that absence, unless it is excused as

unavoidable.” 37 U.S.C. § 503(a). Department of Defense regulations make clear

that the absence of a service member who is confined by civilian authorities and is

ultimately tried and convicted may not be excused as unavoidable. See Department

of Defense Financial Management Regulation, vol. 7A, chapter 1, Tables 1-12.

Accordingly, since Mr. Matthews was tried and convicted by civilian authorities and

is in federal prison, he is absent from duty without leave, and his absence cannot be

excused as unavoidable. See id; 37 U.S.C. 503(a). As such, he is not permitted to

receive any pay or allowances for the period of his absence, and therefore, cannot

state a claim for monetary relief. This is true even if Mr. Matthews was improperly

discharged, since he would only be entitled to the pay “that he would have received

but for the unlawful discharge,” see Martinez, 333 F.3d at 1303 --- which is nothing

because his absence from duty was unexcused. Accordingly, the Court finds that

plaintiff has not stated a claim for back pay upon which relief may be granted.3

Plaintiff’s claim for retainer pay fails for similar reasons. Members of the

Navy who complete at least twenty years of active duty service may receive retainer

pay --- the equivalent of retirement pay --- if they are transferred to the Fleet

Reserve after requesting a transfer. See 10 U.S.C. § 6330(b). Notably, time spent in

“civilian confinement” cannot count toward the twenty-year requirement, and is

instead considered “lost time.” See 10 U.S.C. §§ 972(a), 1405(c), 6328(a), 6333(a);

Department of Defense Financial Management Regulation, vol. 7A, chapter 1,

Tables 1-12; Hare v. United States, 35 Fed. Cl. 353, 354 (1996), aff’d, 108 F.3d 1391

(Fed. Cir. 1997). Plaintiff enlisted in the Navy in 1990, and his most recent

enlistment would have expired on September 15, 2007. See Ex. C, pt. 2 to Compl. at

108. The government argues that plaintiff cannot prove that he is entitled to

retainer pay because he was discharged from the Navy in 2007, several years prior

3 The constructive service credit doctrine also does not support Mr. Matthews’s

claim for back pay. Under that doctrine, service members who were not lawfully

terminated may be returned “to the position that they would have occupied ‘but for’

their illegal release from duty.” See Barnick v. United States, 591 F.3d 1372, 1379

(Fed. Cir. 2010) (internal citations omitted). Importantly, plaintiffs seeking

constructive service credit must show that they were “able to continue on active

duty” when the allegedly improper action occurred. See id. In Mr. Matthews’s case,

not only would Mr. Matthews’s position “but for” the allegedly illegal release be one

in which he is barred from receiving compensation due to his civilian confinement,

but his incarceration precludes a showing that he would have been able to continue

active duty service had he not been discharged.

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to his twenty-year benchmark. See Def.’s Mot. to Dismiss at 13. In the alternative,

the government contends that even if his discharge were unlawful or procedurally

defective, the remedy would be limited to the pay and allowances he would have

received but for the wrongful discharge up until the expiration of his current

enlistment. See id. (citing Dodson v. United States Gov’t, Dep’t of the Army, 988

F.2d 1199, 1208 (Fed. Cir. 1993)). He would not be allowed to reenlist and count the

time since his discharge toward retirement, and would not have met the twenty-

year benchmark for transferring to the Fleet Reserve as of the date that his most

recent reenlistment expired. See Def.’s Mot. at 13. Moreover, the government notes

that since time spent in civilian confinement is “lost time,” Mr. Matthews could only

count his service up until the date of his arrest, which is less than the twenty years

needed for retainer pay. See id. at 13-14.

The Court agrees with the government and finds that Mr. Matthews has

failed to state a claim for retainer pay because he has failed to allege a set of facts

showing that he reached twenty years of active duty service. Even when the facts

as pleaded are read in the light most favorable to plaintiff, as a matter of law, he

cannot receive pay for the time that he has spent in civilian confinement ---

precluding a finding that he is entitled to retainer pay, regardless of whether he

was properly discharged from the Navy.4

Mister Matthews has alleged numerous procedural irregularities related to

his separation proceeding, and requests both monetary and equitable relief for these

alleged violations. As discussed above, Mr. Matthews is precluded from receiving

any pay or allowances as compensation for the time he has spent in civilian

confinement. Therefore, even if he were successful in proving the alleged

procedural violations, he would not be entitled to monetary relief. In addition,

equitable relief is not available because this Court “has no power ‘to grant

affirmative non-monetary relief unless it is tied and subordinate to a money

judgment.’” James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (quoting Austin v.

United States, 206 Ct. Cl. 719, 723 (1975)). Therefore, the Court finds that it has no

jurisdiction over Mr. Matthews’s allegations that the Navy committed various

violations of its procedures and violated his due process rights, or over his request

that the Court change the characterization of his service.

4 Even if the DD-214 were fraudulent, plaintiff still would not state a claim for

retainer pay since he is precluded by law from counting time spent in civilian

confinement toward the twenty years of active duty service needed to receive

retainer pay. See 37 U.S.C. § 503; Department of Defense Financial Management

Regulation, vol. 7A, chapter 1, Tables 1-12.

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III. CONCLUSION

For the foregoing reasons, the government’s motion to dismiss is hereby

GRANTED. Plaintiff’s back pay and retainer pay claims are DISMISSED for

failure to state a claim, and the rest of plaintiff’s claims are DISMISSED for lack of

subject-matter jurisdiction. Plaintiff’s motion for a preliminary injunction is

DENIED as moot. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

s/ Victor J. Wolski

VICTOR J. WOLSKI

Judge

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