OPINION
Before the court is defendant’s motion to dismiss a pro se plaintiffs complaint seeking
BACKGROUND
On August 12, 2003, plaintiff filed a pro se complaint in the Court of Federal Claims seeking relief on six counts.
Plaintiffs military career began in 1984 when he enlisted in the United States Navy (the “Navy”). He details the history of his military service, but material to his claims before the Court of Federal Claims are the allegations that describe his history of worsening medical symptoms and the treatment by his superiors that allegedly led to his discharge. Plaintiff describes various symptoms, including fatigue, that motivated him to seek medical treatment. As a result, the physicians provided plaintiff with some orders — not identified in the complaint — that his superiors ignored. Plaintiff alleges that he began complaining about this treatment, which precipitated a sequence of events, including retaliatory acts, that led to his wrongful discharge. By issuing plaintiff false adverse fitness reports, denying home awaiting orders, and denying shore duty station, the Navy allegedly executed a scheme with the intent to remove plaintiff from service.
Eventually, the Navy convened a preliminary Physical Evaluation Board (the “PEB”) to review plaintiffs medical history for a determination of fitness for duty. (It is not clear at whose behest the PEB was convened.) In an attachment to the complaint, plaintiff explains that on April 10, 1997, he received via “telecopier” a document entitled “Preliminary Findings of the Physical Evaluation Board Proceedings.” The PEB recommended separation from active duty with severance pay due to Chronic Fatigue Syndrome, for which the PEB assigned a 10% disability rating. Plaintiff also explained in his complaint that the PEB’s discharge recommendation was based on a finding of a temporary disability.
Initially, plaintiff “express[ed] disappoint [sic] of not being 30% because [he] believe[d] based on promulgated literature that such a rating would entitle the plaintiff to Temporary Disability Retirement List [(the “TDRL”)] with the option of continuation of service.” Compl. filed Aug. 12, 2003, If 47. On July 10,1997, per his allegations, plaintiff signed a waiver, which forfeited the right to rebut the findings of a PEB. Plaintiff quotes the waiver:
“From LT(jg) Eric Lionel Gant to President, Physical Evaluation Board Subject: Election of Options for Preliminary/Findings of Unfit for Duty”
*313 a. Signature of Initials — “stating I accept the preliminaiy/findings. I understand that it is subject to legal review before becoming final. I waive my right to a formal hearing.”
Id. Attachment ¶ 33.
Plaintiff states that he had no attorney present and had “limited time to consider the findings.” Compl. ¶ 121. Plaintiff otherwise was not informed of a “continuation of service alternative (i.e. ‘inactive reserves’).” Id. ¶ 48. According to the complaint, plaintiff could have been granted “adequate time to recuperate,” which would have allowed him to return to full duty after temporary leave. Id. He “informed his physician of his disagreement with [the] findings[.]” Id. ¶ 120.
Plaintiff was honorably discharged on September 17, 1997, after thirteen years
The remaining allegations of the complaint describe events that occurred after discharge. The allegations depict a troubling post-discharge experience. In chief, they involve certain treatment plaintiff underwent while confined at Charter Peachford Behavioral Health System of Atlanta, Georgia. In addition to forcing him to undergo experimentation, the Navy also allegedly conspired to silence plaintiff from voicing his complaints. The principal act of conspiracy alleged is the Navy’s conspiracy to prohibit plaintiff from entering into law school. Plaintiff explained that the Navy frustrated his attempt so that, by the time he was learned in the law, the statute of limitations would bar his claims.
Plaintiff has voiced his grievances regarding this alleged treatment to various officials, including numerous members of Congress, the FBI, the CIA, and the President of the United States. He also has filed other civil complaints in other courts, the nature of which is not described.
Plaintiffs complaint seeks relief on the following six counts: (1) wrongful discharge; (2) violation of the Military Whistle Blower Protection Act and DoD Directive 7050.6; (3) violation of the Due Process clause of the Fifth and Fourteenth Amendments; (4) gross negligence; (5) civil fraud; and (6) civil conspiracy under 42 U.S.C. § 1985 (2000).
Count One alleges that the Navy discharged him in retaliation for his complaints regarding inadequate medical care and his superiors’ continuous violation of doctors’ orders. Although plaintiff alleges that he did sign the waiver, thereby accepting the informal PEB’s preliminary findings of a disability rating of 10%, he complains that he was not informed of his alternatives to the discharge. Moreover, plaintiff complains of the Navy’s alleged change of the discharge certificate to reflect a finding of permanent disability, instead of temporary disability, which he understood the original PEB findings to reflect.
Count Two complains of the Navy’s alleged reprisal for his complaints, including certain military assignments, which otherwise he would not have received, certain unidentified acts of harassment causing him duress during the medical evaluation process, the wrongful discharge, and “the Navy’s interference to [sic] plaintiffs post graduate admission acceptance process.” Compl. ¶ 57.
Count Three alleges violations of plaintiffs right to due process based on various acts, which plaintiff describes as arbitrary and capricious. Count Four charges the Navy with negligence by subjecting plaintiff to “human subject experimentation,” which apparently occurred while plaintiff was confined involuntarily at Peachford and continued thereafter. Count Five alleges that the Navy’s failure to inform him of an alternative to discharge prior to him waiving the right to dispute the PEB’s preliminary findings constituted fraud. Finally, Count Six alleges that the Navy conspired against him to prevent him from entering into law school.
DISCUSSION
Defendant filed its motion to dismiss under RCFC 12(b)(6) arguing that plaintiff failed to state a claim upon which relief can be granted because he waived any right to judicial review of the disability determination by his acceptance of the preliminary PEB findings. Defendant also argues that this court lacks jurisdiction of all other claims, which this court treats as a motion to dismiss under RCFC 12(b)(1), even though it was not styled as such.
1. Standard of review
Defendant moved under RCFC 12(b)(6) for a dismissal of plaintiffs “wrongful discharge” claim. This rule enables a party to raise by motion the defense of failure to state a claim upon which relief can be granted. Dismissal under Rule 12(b)(6) “is appropriate when the facts asserted by the claimant do not entitle him to a legal remedy.” Lindsay v. United States,
When defendant filed its motion, however, it presented this court with documentary exhibits not subject to judicial notice. Rule 12(b) prohibits a court from considering such matters outside the pleadings unless “the motion ... [is] treated as one for summary judgment and disposed of as provided in RCFC 56[.]” Pursuant to Rule 12(b), this court has treated defendant’s motion as one seeking summary judgment and notified the parties by order dated October 5, 2004.
Defendant also disputes jurisdiction over plaintiffs other claims. A challenge to the court’s subject matter jurisdiction requires examination of the court’s “general power to adjudicate in specific areas of substantive law[.]” Palmer v. United States,
RCFC 12(b)(1) expedites compliance with these precepts by enabling parties to raise by motion, as a defense to a claim, lack of subject matter jurisdiction. The party seeking to invoke this court’s jurisdiction carries the burden of establishing it. Alder Terrace, Inc. v. United States,
This court is mindful that plaintiff is a pro se litigant, entitling him to certain leniencies afforded to all parties proceeding pro se. This is particularly so on motions to dismiss, for “[i]t is settled law that the allegations of [a pro se] complaint, however inartfully pleaded[,] are held to less stringent standards than formal pleadings drafted by lawyers!.]” Hughes v. Rowe,
2. Jurisdiction
The majority of the arguments revolve around plaintiffs claim for wrongful discharge. Because of difficulties stemming from ambiguities in the lengthy complaint, this court addresses plaintiffs other claims so as to pare the remaining portion of the complaint to its cognizable claim.
The claims which defendant argues are jurisdictionally deficient are the following specifically pleaded counts: violation of the Military Whistle Blower Protection Act and DoD Directive 7050.6; violation of the Fifth and Fourteenth Amendments Due Process Clauses; gross negligence; civil fraud; and civil conspiracy under 42 U.S.C. § 1985.
The Tucker Act provides the Court of Federal Claims with 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.
Tucker Act, 28 U.S.C. § 1491(a)(1) (2000). The Tucker Act, however, is “only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.” United States v. Testan,
The Military Pay Act, 37 U.S.C. § 204 (2000), provides the necessary money-mandating source of law which allegedly was violated. It is well established that this statute is money-mandating under the test in United States v. Mitchell,
Plaintiff complains that the Navy violated his rights to due process under the Fifth and Fourteenth Amendments. As the “due process clause does not obligate the government to pay money damages[,]” Collins v. United States,
For a different reason, plaintiffs claims for negligence, fraud, and conspiracy are deficient for jurisdictional purposes. The Tucker Act expressly excludes from the court’s jurisdiction “cases sounding in tort.” 28 U.S.C. § 1491(a)(1). Claims for negligence, Doe v. United States,
This court also has carefully reviewed the other regulations and statutes pleaded, specifically the Navy Military Whistleblower Protection Act, 10 U.S.C. § 1034 (2000), and plaintiffs civil conspiracy claim, and can find no basis for jurisdiction over those claims. See Hernandez v. United States,
Plaintiff argues that the court can consider whether the Federal Government’s acts violated constitutional provisions, statutes, or other sources of law during its adjudication of claims for which it does have jurisdiction. The authority is the obverse: The existence of a claim beyond the court’s jurisdiction does not foreclose consideration of a claim within the court’s jurisdiction. See Holley v. United States,
3. Summary judgment
What survives the jurisdictional attack is plaintiffs claim that his discharge was wrongful, and defendant does not contest jurisdiction over this claim. See Martinez v. United States,
In this court’s order of October 5, 2004, the parties were asked whether the Federal Circuit or other precedential authority has held that a waiver of a right to contest the preliminary findings of an informal PEB effectuates a waiver of judicial review in the Court of Federal Claims. Answering in the affirmative, defendant refers this court to Maier v. Orr,
On appeal the Federal Circuit concluded that the district court abused its discretion. Maier,
Defendant reads Maier to hold that a waiver precludes judicial review by referring to the Federal Circuit’s statement that, “‘having chosen not to challenge her discharge at the time it was issued, by formal hearing or otherwise, the district court could properly have held that she had waived any right, if one existed, to challenge that military determination in a judicial forum.’” Def.’s Br. filed Nov. 3, 2004, at 8 (quoting Maier,
The Federal Circuit has touched on the waiver issue since Maier, but not precisely on point.
The waiver, as it is quoted by plaintiff, simply states that the signatory waives his right to a “formal hearing.” 10 U.S.C. § 1214 prohibits the Secretary of the Navy from retiring or separating a servicemember for physical disability without a formal hearing unless waived. Plaintiff understands now — and acknowledged then — that he was giving up this right. Navy regulation SECNAVINST 1850.4c, § 5200(c) (July 1993), explains that the formal “hearing provides an opportunity for the member to present additional material to support his or her case.”
By waiving a formal hearing, plaintiff prevented the Navy from itself having an opportunity to entertain any claim or objection and to develop a full record that this court now could review. The Navy effectively was deprived of the opportunity to correct its own errors — if they ever existed. Agencies must have these opportunities. See United States v. L.A. Tucker Truck Lines, Inc.,
Allowing plaintiff to maintain a claim after waiving it earlier would render the waiver meaningless. As defendant stated, “waiver operates to prevent [plaintiff] from manipulating the system by seeking the best of both worlds — the certainty of a guaranteed payout upon discharge and the ability to exploit the limited record for financial gain at a later time.” Def.’s Br. filed April 29, 2004, at 11.
In keeping with the guidance of the Federal Circuit in Maier, quoted in its recent McHenry decision, the court rules that plaintiff waived his right, if he had one, to proceed in court by failing to alert the military to his objections and to take advantage of the opportunity for a formal hearing. He was given an opportunity to contest the finding of unfitness for duty, along with the disability rating, and he declined it. On these facts this court finds that he waived review.
The only way plaintiff could void his waiver and maintain a claim before the court would be to show that his act of signing the waiver was involuntary. The parties seem to agree implicitly that the “voluntariness” of plaintiffs act of signing the waiver is an issue governed by precedential decisions on the question of whether a discharge was voluntary. Both parties fail to recognize that, in fact, they skip a step. Defendant acknowledges jurisdiction, but then cites jurisdictional cases to support a Rule 12(b)(6) dismissal. Moreover, defendant’s reply brief is entirely an argument on the jurisdictional issue of the voluntariness of retirement: “To rebut the presumption of voluntariness, [plaintiff] must allege specific facts.” Def.’s Br. filed July 26, 2004, at 2.
Plaintiff must have pleaded facts sufficient to establish that his waiver was involuntary, and, in response to defendant’s motion which challenges that he lacked evidentiary support, plaintiff must come forward with an affidavit or similar showing. He did neither, although plaintiff attempts to argue that the waiver should be invalidated because he was induced into signing it by means of a misrepresentation and that he was otherwise under duress.
An act induced by misrepresentation can render that act involuntary. See Tippett v. United States,
As to his assertion in his argument that the he was under duress when he executed the waiver, plaintiff makes no allegation, and certainly none bolstered by evidence that is considered on summary judgment, that any circumstances suggest duress. He claims to have lacked counsel, but he does not proffer any requirement that he be represented by counsel. Plaintiff claims not to have been presented with any alternative, but this is belied by his signing the waiver form, where he affirmatively refused the alternative of contesting the disability rating before a formal PEB. He has raised other points, all of which this court has reviewed and none of which enable him to overcome defendant’s arguments.
CONCLUSION
Accordingly, based on the foregoing,
IT IS ORDERED, as follows:
1. Defendant’s motion for summary judgment is granted as to Count 1.
2. Defendant’s motion is granted as to Counts 2 through 6, and they are to be dismissed for lack of jurisdiction.
3. The Clerk of the Court is directed to enter judgment for defendant.
4. No costs.
Notes
. Concurrently with his complaint, plaintiff filed a motion for leave to proceed in forma pauperis and a motion for the appointment of counsel. The former was granted and the latter denied.
. Plaintiff included an introductory paragraph with this attachment, wherein he requested the court to take judicial notice pursuant to Fed.R.Evid. 201 of each fact contained in the attachment. This court accepts these paragraphs as part of the complaint and denies plaintiff’s motion for judicial notice.
. The thirteen years is a figure that comes from the complaint; defendant asserts that plaintiff served on active duty for nine years. The court accepts as true plaintiff's allegations pleaded in the complaint; in any event, the difference is not germane to defendant’s motion.
. If plaintiffs claims can be construed to plead not wrongful discharge but entitlement to disability benefits, plaintiff’s money-mandating source of law is 10 U.S.C. § 1201 (2000). Section 1201 requires the Secretary to pay retirement funds for qualifying disabilities and is "reasonably amenable to the reading that it is money-mandating.” Fisher,
. Although entitled as “wrongful discharge,” plaintiff’s claim disputes the disability rating — a determination by the informal PEB.
. The Federal Circuit currently has before it an appeal from the Court of Federal Claims which involves this precise issue. Van Cleave v. United States,
. In an unpublished, non-precedential decision, the Federal Circuit ruled that accepting an informal PEB rating did not divest the Court of Federal Claims of jurisdiction. See Poole v. United States,
. Were plaintiff to prevail, the effect of such a ruling would be to deny the military the right to establish an intermediate board of review for disability cases. Friedman v. United States,
. Defendant additionally states in its supplemental brief that plaintiff’s claim never accrued, citing Friedman,