In the United States Court of Federal Claims

In the United States Court of Federal Claims

No. 03-1721 C

(Filed: April 28, 2004)

_________________________________

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Military pay; correction of

WILLIAM R. JEFFERSON,

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records, reinstatement and lost

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pay claim; 10 U.S.C. ?? 807, 809,

Plaintiff,

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815 (2000); U.S. Const. amend.

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IV; justiciability; scope of review

v.

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of nonjudicial punishment in the

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military; unreasonable seizure;

THE UNITED STATES,

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when probable cause required;

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lawful order

Defendant.

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________________________________ )

William R. Jefferson, Randolph AFB, TX, pro se.

Douglas K. Mickle, with whom were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and James M. Kinsella, Deputy Director, Civil Division, U.S. Department of Justice, Washington, DC for defendant. Lt. Col. P. Christopher Clark, General Litigation Division, Air Force Legal Services Agency, Arlington, VA, of counsel.

OPINION

HEWITT, Judge

Before the court is Defendant's Motion to Dismiss, and in the Alternative, Motion for Judgment upon the Administrative Record (Def.'s Mot. or defendant's motion). The

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motion has been fully briefed.1 For the reasons discussed below, defendant's motion for judgment upon the administrative record is GRANTED.

I. Background

The pertinent facts in this case are not in dispute.2 Plaintiff is an active-duty member of the United States Air Force. Def.'s Facts ? 1. Plaintiff, a noncommissioned officer, held the rank of technical sergeant (E-6) at the time he was the subject of an Air Force Office of Special Investigations (OSI) investigation in April 1999, an investigation triggered by a complaint from a civilian that plaintiff and a male airman had raped a female airman. Id. ?? 2, 5; Compl. at 2.

During the investigation by Special Agent Brian D. Medley of OSI, plaintiff was summoned for an interview. Def.'s Facts ? 4; AR at 44. After some questioning he requested counsel. Def.'s Facts ? 4. Thereafter, the interview was terminated. Id. After being fingerprinted and photographed, plaintiff stated he wanted to leave the OSI building, but was ordered by Special Agent Medley to remain until released to his First Sergeant. Id. Plaintiff disobeyed the order to stay seated, and once he left the building, he also disobeyed the order by another Special Agent to return to the OSI building. Id.; AR at 43, 45, 48, 50. Plaintiff was then informed that he was "under apprehension," was handcuffed, and was returned to the OSI building. Def.'s Facts ? 4; AR at 43, 45, 48, 50.

Plaintiff was not ultimately tried for rape, but for disobeying the order given by Special Agent Medley to remain at the OSI building, and for two fraternization charges based on allegations of sexual intercourse with the female airman and "partying" with the male airman. AR at 90. Plaintiff was considered for nonjudicial punishment under

1Other filings include the Complaint (Compl.), Administrative Record (AR) filed by defendant, Defendant's Statement of Facts (Def.'s Facts), plaintiff's Response to Defendant's Motion to Dismiss, and Motion for Judgment upon the Administrative Record (Pl.'s Resp.), Plaintiff's Counter-Statement of Facts (Pl.'s Facts) and Defendant's Reply to Plaintiff's Response to Defendant's Motion to Dismiss, and in the Alternative, Motion for Judgment upon the Administrative Record (Def.'s Reply).

2Facts cited to only one party in this opinion are uncontroverted. Plaintiff does not dispute any of the facts, as stated by defendant, related to the investigation that preceded his nonjudicial punishment by the Air Force. Pl.'s Facts ? 4. Plaintiff does dispute certain underlying facts that gave rise to the investigation, and disputes the legal import of the Air Force's actions during the investigation, punishment and review of his punishment. See generally id.

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Article 15, Uniform Code of Military Justice (UCMJ), 10 U.S.C. ? 815 (2000).3 Def.'s Facts ? 5. Punishment was considered for charges of "Failure to obey other lawful order," Article 92, UCMJ, and "Fraternization," Article 134, UCMJ.4 AR at 11; Def.'s Facts ? 5; see also 10 U.S.C. ?? 892, 934 (2000). The punishment plaintiff received was a reduction in rank, E-6 to E-5, and a reprimand. Def.'s Facts ? 5.

The Article 15 punishment was upheld on appeal, and placed in an Unfavorable Information File (UIF) in plaintiff's military records. Id.; AR at 174. Upon plaintiff's request for removal of the Article 15 and UIF from his records, restoration of rank and back pay, the Air Force Board for Correction of Military Records (AFBCMR) on September 21, 2000 recommended that plaintiff's records be corrected to give plaintiff the "`partial relief'" of removing that portion of the Article 15 punishment related to fraternization and removing the reprimand.5 Def.'s Facts ?? 6, 8 (quoting AR at 6); Def.'s Mot. at 2-3. "On September 21, 2000, Joe G. Lineberger, Director of the Air Force Review Boards Agency, directed that [plaintiff's] records be corrected by implementing the AFBCMR's recommendations." Def.'s Facts ? 8; AR at 1.

Upon plaintiff's request for reconsideration of the AFBCMR decision to uphold the punishment of reduction in rank for disobeying a lawful order, on December 15, 2000 the AFBCMR denied plaintiff's request stating that "[r]econsideration is authorized only where newly discovered relevant evidence is presented which was not available when the application was submitted. The reiteration of facts previously addressed by the Board, uncorroborated personal observations, or additional arguments on the evidence of record are not adequate grounds for reopening a case." AR at 142; see also Def.'s Facts ? 9; AR at 138. Plaintiff again applied to the AFBCMR, requesting that his records be corrected to remove the entirety of the Article 15 punishment, that the board restore his rank and

3"In the Uniform Code of Military Justice Congress has set forth four methods for disposing of cases involving offenses by servicemen: the general, special, and summary courtsmartial and disciplinary punishment administered by the accused's commanding officer pursuant to Article 15, UCMJ. . . . Article 15 nonjudicial punishment, UCMJ, is the least formalized method of discipline, conducted personally by the accused's commanding officer." Dumas v. United States, 620 F.2d 247, 251 (Ct. Cl. 1980) (citations and footnote omitted).

4The fraternization charges stated that plaintiff acted "as prohibited by Air Force Instruction 36-2909 paragraph 3.6, in violation of the custom of the United States Air Force that noncommissioned officers shall not fraternize with enlisted persons on terms of military equality." AR at 90.

5The bar on fraternization between noncommissioned officers and enlisted personnel was found to be unsupported by regulation, case law or Air Force custom. AR at 84.

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award back pay and that he "receive supplemental board consideration for promotion to the grade of master sergeant (E-7)." AR at 174; see also Def.'s Facts ? 10. After obtaining legal opinions from the Air Force Legal Service's Agency Military Justice Division (JAJM) regarding plaintiff's legal arguments, the majority of the AFBCMR board found "insufficient evidence of error or injustice and recommend[ed] the application be denied." AR at 177; see also Def.'s Facts ?? 7, 10-12, 14. Mr. Lineberger accepted the majority recommendation on July 24, 2002 and denied plaintiff's application, concurring in their finding that "relief is not warranted." AR at 173.

Plaintiff filed his complaint in this court on July 17, 2003, requesting that the court

[a]mend [his] military records by removing in its entirety the Article 15, reinstate [him] to the grade of E-6 with an effective date of 1 May 1994, order [him] to meet a supplemental promotion board for the grade of E-7, order the payment of all lost pay and allowances suffered as a result of the Article 15 punishment, and order any further relief the Court deems reasonable and necessary.

Compl. at 6. Defendant moved, on October 15, 2003, to dismiss plaintiff's claims based on Rule 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC), "failure to state a claim upon which relief can be granted," RCFC 12(b)(6), and, in the alternative, for judgment upon the administrative record pursuant to RCFC 56.1. Def.'s Mot. at 1, 4, 10.

II. Discussion

A. Standard of Review

The Tucker Act gives this court jurisdiction to "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." 28 U.S.C. ? 1491(a)(1) (2000). In order to invoke Tucker Act jurisdiction, a "plaintiff must assert a claim under a separate moneymandating constitutional provision, statute, or regulation, the violation of which supports a claim for damages against the United States." James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998). Active-duty members of the armed services are entitled to their pay by statute. See 37 U.S.C. ? 204(a)(1) (2000) ("The following persons are entitled to the basic pay[:] . . . a member of a uniformed service who is on active duty . . . ."); Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999) ("By virtue of their status, arising from full-time active duty service, they are entitled to the pay and allowances attributable to their rank and station.") "If [full-time active duty service members] are wrongfully

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denied the benefits of that status, they have a cause of action under the Tucker Act; section 204(a)(1) is money-mandating." Palmer, 168 F.3d at 1314.

"In evaluating [a Rule 12(b)(6)] motion, the court must accept all well-pled factual allegations as true and draw all reasonable inferences in the plaintiff[']s favor." Ainslie v. United States, 355 F.3d 1371, 1373 (Fed. Cir. 2004). "Dismissal for failure to state a claim under Rule 12(b)(6) is proper only when a plaintiff `can prove no set of facts in support of his claim which would entitle him to relief.'" Leider v. United States, 301 F.3d 1290, 1295 (Fed. Cir. 2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), cert. denied, 538 U.S. 978 (2003). In deciding a motion filed under RCFC 12(b)(6), "`pleadings drafted by pro se plaintiffs are held to a less stringent standard than pleadings drafted by attorneys.'" Deason v. United States, 57 Fed. Cl. 266, 268 (quoting Thomas v. United States, 56 Fed. Cl. 112, 114 (2003)), aff'd, 83 Fed. Appx. 332 (2003). If "matters outside the pleading are presented to and not excluded by the court, the [RCFC 12(b)(6)] motion shall be treated as one for summary judgment." RCFC 12(b).

"Motions for judgment on the administrative record filed pursuant to Rule 56.1 of the Rules of the United States Court of Federal Claims (RCFC) are reviewed under the same standards as motions for summary judgment." Eisenhuth v. United States, 59 Fed. Cl. 460, 462 (2004). Summary judgment shall be granted if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." RCFC 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (quoting the almost identical language of Rule 56(c) of the Federal Rules of Civil Procedure). "[A]ll evidence must be construed in the light most favorable to the party opposing summary judgment." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 601 (1986). However, "[a] nonmoving party's failure of proof concerning the existence of an element essential to its case on which the nonmoving party will bear the burden of proof at trial necessarily renders all other facts immaterial and entitles the moving party to summary judgment as a matter of law." Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994).

B. Analysis

1. Justiciability

Defendant argues that plaintiff's complaint should be dismissed because plaintiff's claims are nonjusticiable. Def.'s Mot. at 7, 9. Defendant asserts that plaintiff has failed to allege any claim that falls within the scope of review of this court. Id. at 7-9. Plaintiff, proceeding pro se, has alleged facts concerning his reduction in grade from E-6 to E-5 and lost pay. Complaint (Compl.) at 1-6. Plaintiff has also alleged that the Air Force

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