McGhee v. United States
19-629
| Fed. Cl. | Sep 3, 2021Background
- Kevin L. McGhee, a dual‑status Missouri Army National Guard technician and chaplain, was medically retired effective January 20, 2015; he alleged incapacity beginning May 4, 2013 and sought 21 months of incapacitation pay.
- McGhee filed an administrative claim with the Army Board for Correction of Military Records (ABCMR) in January 2017 and filed suit in the Court of Federal Claims (CFC) in April 2019; the case was voluntarily remanded to ABCMR.
- ABCMR granted partial relief, finding entitlement beginning November 9, 2013 through January 20, 2015 (14 months, 11 days); McGhee sought an additional six months and four days, plus expanded claims.
- McGhee expanded his claims to include: (1) additional incapacitation pay under 37 U.S.C. § 204; (2) USERRA discrimination; (3) FERS disability retirement annuity; and (4) federal and military whistleblower retaliation, seeking $5,000,000.
- The government moved to dismiss for lack of subject‑matter jurisdiction (RCFC 12(b)(1)); the CFC granted the motion and dismissed the complaint, concluding none of McGhee’s claims were money‑mandating or within the court’s jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Incapacitation pay under 37 U.S.C. §204 | McGhee contends he is owed incapacitation pay from May 4, 2013 through Nov. 8, 2013 (in addition to ABCMR award) | §204(g)/(h) beyond six months is discretionary under §204(i)(2); not money‑mandating | Dismissed for lack of jurisdiction; §204 discretionary beyond six months (Barnick) |
| USERRA discrimination | McGhee alleges employment discrimination under USERRA | MOANG dual‑status technician is a State employer for USERRA; jurisdiction lies in state court or MSPB/MSPB schemes | Dismissed for lack of jurisdiction; USERRA claims by National Guard technicians belong in state court or other fora |
| FERS disability retirement annuity | McGhee seeks FERS disability retirement benefits | Initial adjudication and review of FERS claims lie with OPM and MSPB, not CFC | Dismissed for lack of jurisdiction; OPM/MSPB have exclusive statutory authority |
| Whistleblower retaliation (5 U.S.C. §2302; 10 U.S.C. §1034) | McGhee alleges whistleblower retaliation and seeks damages | Whistleblower statutes provide administrative remedies and do not create a private money‑mandating right enforceable in CFC | Dismissed for lack of jurisdiction; statutes do not authorize money damages in CFC; no Tucker Act basis |
Key Cases Cited
- Barnick v. United States, 591 F.3d 1372 (Fed. Cir. 2010) (§204 grants Secretary discretion to extend incapacitation pay beyond six months; such awards are not money‑mandating)
- Chambers v. United States, 417 F.3d 1218 (Fed. Cir. 2005) (discusses §204 as money‑mandating generally but did not parse subsections)
- Dyer v. Dep’t of the Air Force, 971 F.3d 1377 (Fed. Cir. 2020) (explains dual‑status National Guard technicians’ mixed federal/state employment status)
- Office of Pers. Mgmt. v. Richmond, 496 U.S. 414 (1990) (limits equitable estoppel against the government in claims involving payments from the Treasury)
- Belanger v. Office of Pers. Mgmt., 1 F.3d 1223 (Fed. Cir. 1993) (estoppel requires a threshold showing of reasonable reliance)
- United States v. Mitchell, 463 U.S. 206 (1983) (Tucker Act jurisdiction requires a money‑mandating source; not every federal statute creates Tucker Act jurisdiction)
- Fisher v. United States, 402 F.3d 1167 (Fed. Cir. 2005) (Tucker Act does not create substantive causes of action)