ORDER
Richard Reilly (plaintiff) seeks, inter alia, restoration of rank, as well as all emoluments and pay to which he is entitled following his involuntary separation from the U.S. Marine
I.
A brief recitation of the facts provides necessary context.
In 1993, plaintiff was commissioned as an officer in the Corps. In 1998, while deployed in Norway, plaintiff became inebriated while on liberty and inappropriately touched a female enlisted Marine while traveling back to base on the liberty bus. Plaintiff accepted nonjudicial punishment pursuant to 10 U.S.C. § 815, and was found guilty of violating Article 133 of the Uniform Code of Military Justice, 10 U.S.C. § 933, for engaging in conduct unbecoming an officer and a gentlemаn. He was issued a letter of reprimand, and forfeited $500.00 of his monthly pay for two months. On August 19, 1998, a board of inquiry determined that he had demonstrated substandard performance of duty and committed misconduct, but, nevertheless, recommended that he be retained in the Corps. Further administrative action on this matter was later dropped.
Plaintiff continued to serve on active duty until 2001, when he resigned and accepted a commission with the U.S. Marine Corps Reserve (USMCR). Plaintiff was first considered for promotion to Major in 2002 by the FY03 Reserve Major’s Selection Board. Indeed, he was selected for promotion by that Board and scheduled to be promoted on October 1, 2002. That promotion, however, was delayed pending further consideration of the incident described above.
From January 14, 2003, to August 6, 2003, plaintiff was recalled to active duty and deployed to Iraq as part of Operation Enduring Freedom. While plaintiff was in the midst of this tour, on June 9, 2003, the Commandant of the Marine Corps (the Commandant) submitted a three-page memorandum to the Secretary of the Navy, recommending that plaintiff remain on the FY03 Major USMCR Promotion List (the 2003 promotion list), despite his prior discipline.
Plaintiff could not pursue promotion through the FY04 and FY05 Selection Boards while still being considered by the FY03 Board. Follоwing resolution of his FY03 selection, in 2005, he resubmitted his promotion package, but was rejected by the FY06 Selection Board. This second nonpro-motion decision automatically triggered plaintiffs discharge from the USMCR.
On June 8, 2005, plaintiff petitioned the BCNR to correct the records pertaining to his removal from the FY03 Promotion List and failure to be selected for the FY06 list, requesting that he be returned to the FY03 Promotion List and that his selection failures be rescinded. He claimed that the President had been misled to believe that the Commandant had recommended that his name be withdrawn from the promotion list, when, in fact, the Commandant had supported his promotion. In response, Captain Matthew Spurlock, a lawyer in the Judge Advocate General Division of the Corps, submitted an affidavit to the BCNR in which he reported a conversation with Major Pete Gillis, who had worked in the Corps’ Office of Promotions during the relevant period. Captain Spur-lock averred that Major Gillis had “personal knowledge” that, after a conversation with the Secretary of the Navy, the Commandant had “changed his mind” and ultimately decided not to support the promotion. When plaintiffs counsel objected to this affidavit as being “triple” hearsay, Captain Spurlock produced an affidavit by Major Gillis, in which the latter backed up Captain Spurlock’s prior claims and, indeed, identified himself as the source of the information contained in the aforementioned May 31, 2004, memorandum from the Deputy Undersecretary referenced above. Neither affidavit submitted to the BCNR explained how Major Gillis had come by “personal knowledge” of the Commandant’s conversation with the Secretary of the Navy or why there is no contemporaneous evidence of the Commandant’s changed position in plaintiffs records.
Nevertheless, apparently without a hearing on the matter, on October 14, 2005, the BCNR denied plaintiffs application, rejecting his contention that there had been material error or injustice in the recommendation reported to the President. In so concluding, the BCNR relied squarely on Major Gillis’ affidavit. It declined to find any inaccuracies in the recommendation sent to the President, relying on the “presumption of regularity” that accompanies the acts of government officials. On November 1, 2005, plaintiff was involuntarily discharged from USMCR, despite having more than seventeen years of service.
On August 3, 2009, plaintiff filed a complaint in this court, invoking, inter alia, the Administrative Procedures Act, 5 U.S.C. § 702 et seq., and the Tucker Act, 28 U.S.C. § 1491, and seeking: (i) constructive service from the time he was removed from the promotion list to date; and (ii) back pay, allowances, restoration of date and rank and lineal precedence, and any other emoluments to which he was entitled as a result of his allegedly improper removal from the promotion list, from the date he should have been promoted in 2003 to the present, plus interest. Plaintiff also asserted that the BCNR abused its discretion in basing its decision upon the “hearsay statements” of an officer. On October 23, 2009, defendant filed a motion to dismiss the complaint under RCFC 12(b)(1) and 12(b)(6). That motion has been fully briefed and was argued on February 25, 2010.
Deciding a motion to dismiss “starts with the complaint, which must be well-pleaded in that it must state the necessary еlements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States,
In addition, to survive a motion to dismiss for failure to state a claim under RCFC 12(b)(6), the complaint must have sufficient “facial plausibility” to “allow [] the court to draw the reasonable inference that the defendant is liable.” Ashcroft v. Iqbal, - U.S. -,
Plaintiffs monetary claims allegedly are rooted in the Tucker Act, 28 U.S.C. § 1491. That statute affords this court juris-dietion over “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 еxpress 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). “[Bjeeause the Tucker Act itself does not create a substantive cause of action,” the Federal Circuit has adumbrated, “ ‘in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.’” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin.,
A.
Plaintiff asserts that 37 U.S.C. § 204(a)(1), in conjunction with 10 U.S.C. § 1552(e)(1), supplies the requisite pay-mandating statute.
The same fate awaits that portion of plaintiffs complaint which seeks, for his actual seivice, the differеntial in pay between the rank at which he seived and that which he allegedly was improperly denied. In this regard, the Federal Circuit has held that “[a]s a general matter, a seivice member is entitled only to the salary of the rank to which he is appointed and in which he selves.” Smith v. Sec’y of the Amy,
The only exception to this rule allows for additional compеnsation to be pursued under the Military Pay Act where “there is a clear-cut legal entitlement” to the promotion in question, Skinner v. United States,
Plaintiff can point to no other statute or regulаtion that mandates pay for reserve service never actually performed or a rank nev
Nor does this court have jurisdiction to correct the errors plaintiff asserts occurred in his first promotion review, modify his service records or set aside his involuntary discharge and order his reinstatement. While this court may address procedural violations alleged to have occurred during the course of prоmotion and discharge decisions, it may do so, via 28 U.S.C. § 1491(a)(2), only “[t]o provide an entire remedy and complete the relief afforded by the judgment.” As the quoted language intimates, this court “has no power ‘to grant affirmative non-monetary relief unless it is tied and subordinated to a money judgment.’” James,
B.
Plaintiff requests that this court transfer his nonmonetary claims to an appropriate district court under 28 U.S.C. § 1631. The latter section provides:
Whenever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action ... to any other such court in which the action ... could have been brought at the time it was filed....
“The statute requires the transferor court to determine both that it lacks jurisdiction and thаt the transferee court possesses jurisdiction.” Fisherman’s Harvest, Inc. v. PBS & J,
The first prong of this statutory analysis begs questions as to the nature of the dismissals here. Consistent with Federal Circuit precedent, the court's determination that the pled facts in this case do not support a claim under 37 U.S.C. §§ 204 and 206 results not in a dismissal for lack of jurisdiction, but for failure to state a claim — a merits determination.
The decisional law suggests that in a bifurcated resolution such as this— where some claims are dismissed for failure to state a claim, and others for lack of jurisdiction — the latter may be transferred. Thus, the Federal Circuit has held that section 1631 “permits the transfer of less than all of the claims of an action,” observing, inter alia, that it “would indeed be a curious result that a ... court could transfer an action under § 1631 containing a single claim over which it lacked jurisdiсtion but could not transfer that claim if the claimant made an additional claim in his action over which the court did have jurisdiction.” United States v. County of Cook, Illinois,
Next to bе considered is whether a district court would have possessed jurisdiction over plaintiffs nonmonetary claims when this suit was filed — in other words, whether the district court would have had jurisdiction over plaintiffs nonmonetary claims under the APA. The APA waives the sovereign immunity of the United States only for “[a]n action in a court of the United States seeking relief other than money damages.” 5 U.S.C. § 702. In addition, the APA provides that judicial review of agency action is available only “if there is no other adequate remedy.” 5 U.S.C. § 704. Thus, the twin focus of our inquiry must be on whether the claims tо be transferred effectively seek money damages and whether a suit in this court could provide plaintiff with an “adequate remedy.” See James,
Although isolated cases suggest otherwise, cf. Cobell v. Norton,
They also appear to satisfy the “no other adequate remedy” requirement of 5 U.S.C. § 704. The purpose and effect of this provision, of course, is to make clear that the APA “does not provide additional judicial remedies in situations where the Congress has provided special and adequate review procedures.” Attorney General’s Manual on the Administrative Procedure Act § 10(c), p. 101 (1947); see also Bowen v. Massachusetts,
It is still necessary, of course, to determine whether a transfer is “in the interest of justice.” When considering this issue, the court must weigh “ ‘the equities of dismissing a claim when it could be transferred.’” Ruiz v. Mukasey,
In the case sub fiidice, relevant considerations militate heavily in favor of a finding that the interests of justice are best served by transferring plaintiff’s APA claims. Although plaintiff’s claims likely would be timely if filed anew in the district court, see 28 U.S.C. § 2401(a) (establishing a six-year statute of limitations for APA review), a transfer undoubtedly would expedite their review. Moreover, every indication is that these claims have been raised in good faith and are not frivolous, prompted by what appear to bе bona fide concerns regarding the propriety of the procedures that were employed by the Corps in dealing with plaintiff’s promotion and by the BCNR’s action in resolving inconsistencies in plaintiffs promotion record on the basis of an affidavit filed by a Major claiming, without explanation, to have “personal knowledge” of a conversation between the Commandant and the Secretary of the Navy.
At oral argument, plaintiff requested that any transfer be to the United States District Court for the District of Columbia. The statute governing the selection of venue for APA actions, 28 U.S.C. § 1391(e), indicates that venue in that court is proper and the court will thus accommodate plaintiffs request.
III.
Based on the foregoing, the court GRANTS, in part, and DENIES, in part, defendant’s motion to dismiss, holding that plaintiffs monetary claims fail to state a claim upon which relief may be granted. The Clerk is hereby ordered to dismiss those portions of plaintiffs complaint. Pursuant to 28 U.S.C. § 1631, the court hereby TRANSFERS the remainder of this lawsuit, constituting plaintiff’s nonmonetary claims predicated upon the APA, to the United States District Court for thе District of Columbia. No costs.
IT IS SO ORDERED.
Notes
. These facts are drawn from plaintiff's complaint and, for purposes of this motion, are assumed to be correct. See Bell Atl. Corp. v. Twombly,
. The Commandant's memorandum is attached to plaintiff’s complaint. The Commandant based his recommendation, in part, on testimonials received from plaintiff's chain-of-command. In this regard, the Commandant wrote:
The officer-in-charge, Detachment 2, Communications Company, Headquarters and Service Battalion, 4th Force Service Support Group, states that Captain Rеilly joined the unit approximately 2 years ago and that he has "observed nothing short of excellence from him.” The officer-in-charge further states that Captain Reilly has demonstrated that "he is an officer of the highest caliber,” that he would rank Captain Reilly in the "top ten percent of Marine Corps officers” he has served with, and that Captain Reilly was slated to become the officer-in-charge of Detachment 2 before his name was withheld from the promotion list. The officer-in-charge concludes by stating that he would want Captain Reilly by his side, "leading my unit if we go into combat," and recommends that Captain Reilly be promoted. The Commanding Officer, Headquarters and Service Battalion, 4tii Force Service Support Group, states that after a "face to face interview, observation of his exceptional leadership skills and technical expertise during a drill weekend, and a thorough review of all his fitness reports and awards,” she finds Captain Reilly to be highly qualified for promotion. The Commanding Officer opines that [the incident with female Mаrine] is inconsistent with Captain Reilly's behavior and "is considered an anomaly from an otherwise sustained record of excellence and high standard of conduct.” The Deputy Commander, Marine Forces Reserve, forwards the package, recommending approval of promotion.
The recommendation concluded that “[ajlthough Captain Reilly used poor judgment when he decided to drink to excess more than 5 years ago, this single incident was out of character for Captain Reilly and I believe it to be a one-time lapse in judgment.”
. 37 U.S.C. § 204(a)(1) provides that "a member of the uniform service who is on active duty ... [is] entitled to the basic pay of the pay grade to which assigned.” 10 U.S.C. § 1552(c)(1) states: "The Secretary ... may pay ... a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, ... if, as a result of correcting a record ... the amount is found to be due the claimant on account of his ... service in the Army, Navy, Air Force, Marine Corps, or Coast Guard....”
. In pertinent part, 37 U.S.C. § 206(a) provides that—
Under regulations prescribed by the Secretаry concerned, and to the extent provided for by appropriations, a member of the National Guard or a member of a reserve component of a uniformed service who is not entitled to basic pay under section 204 of this title, is entitled to compensation, at the rate of 1/30 of the basic pay authorized for a member of a uniformed service of a corresponding grade entitled to basic pay—
(1) for each regular period of instruction, or period of appropriate duty, at which the member is engaged for at least two hours, including that performed on a Sunday or holiday;
(2) for the performance of such other equivalent training, instruction, duty, or appropriate duties, as the Secretary may prescribe....
. See also Eastern Shawnee Tribe of Okla. v. United States,
. See, e.g., Martinez,
.See Fisher,
. See, e.g., Jacobs v. United States,
. This is not to say that a discharged service member may split a military employment claim into monetary and equitable components so as to effectuate separate adjudications. See Gregory Sisk, “The Tapestry Unravels: Statutory Waivers of Sovereign Immunity and Money Claims Against the United States,” 71 Geo. Wash. L.Rev. 602, 651 (2003) (criticizing cases permitting this).
. See Gillan v. Winter,
. While defendant argues that the issues springing from these matters are nonjusticiable, those arguments cite Tucker Act precedents arising within this circuit. It would appear best to allow the district court, in the first instance, to consider whatever justiciability arguments arise in the APA context, consistent with D.C. Circuit precedent.