LIEBER v. USA, No. 1:2013cv00137 - Document 31 (Fed. Cl. 2014)
Court Description: REPORTED OPINION and ORDER granting 17 Motion to Dismiss pursuant to Rule 12(b)(1). The Clerk is directed to enter judgment. Signed by Judge Elaine D. Kaplan. (dls) Copy to parties.
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fr:$:ri.it lJntW @nftr! $rtatts @ourt of fpltrul @tsfmg FILED No. 13-137C (Filed: May 6,2014) MAY 6 2014 JASON W. LIEBER, 'Eil'33i3h?fi" Plaintiff, Pro Se Plaintiffs; Motion to Dismiss for Lack of Subject Matter Jurisdiction; RCFC 12(b)(1) THE TINITED STATES OF AMERICA, Defendant. Jason W. Lieber, Gilbert, AZ, plaintiff, pro se. Anne - for defendant. speck, civil Division, United States Department of Justice, washington, DC, _ Elizabeth KAPLAN, Judge: The plaintiffin this case, Staff Sergeant ('ssc') Jason w. Lieber, proceeding p1q se, has fileda complaint claiming that the Army breached a contractual obligation to providJ il-im with a $ 10,400 bonus upon his re-enlistment in the service. He seeks to recoup da-ages in the amount of $3 1,2.00, w_h_ich he alleges "will cover interest paid, fines associated with, ani time spent on proceeding with this case." Compl. ,lf 7. The govemment has filed amotion to dismiss pursuant to Rules 12(bxr) and 12(b)(6) of the Rules of the court of Federal claims C'RCFC). Altematively, it has movei for judiment on the administrative record. on April 21,2014, in accordance with RCFC 12(d), the co.'i guu" the parties notice that it intended to treat the government's motion to dismiss 12(b)(6) as a motion for summary judgment, pursuant to RCFC 56.t under RCFC ' As the Court indicated in that notice, although the government had moved in the alternative for judgment on the administrative record, that procedural route is not available in this case because the plaintiffis not requesting that the Court review an administrative decision; he is seeking de 49p review of a breach of contract claim. Therefore, the appropriate mechanism throulh which the court may consider the govemment's contentions is througrr a motion for summary For the reasons set forth below, the court grants the government's RCFC 12(b)(l ) motion to dismiss for lack ofjurisdiction. BACKGROUND SSG Lieber joined the Army on october 31, 2006, committing to four years of active duty service. Administrative Record (",A11"; Tabs A15-16. His Military occupation Specialty C'MOS) is 35F or Intelligence Analyst. AR Tab A1 1 at 15. on December 30, 2008, two years into his initial service obligation, SSG Lieber agreed to reenlist in the Army, accruing a new expiration term ofservice date ofDecember 30,2012. AR Tab A8 at 10-l Pursuant to Army regulations at the time, SSG Lieber was elisible for a reenlistment bonus on the basis of his MOS. Id., l. SSG Lieber received a $5000 "Lone A" reenlistment bonus (AR Tab Ag at 10), pursuant to Army Regulation 601-280, chapter 5-6 and the Military personnel (.MILPER,) Message 0s241 that was then in effect. Def. App. C'AX) 23, 35 (reproducing, respecrively, MILPER Message 08-241 and Army Regulation 601-2g0, chapter5-6). Al,zoie A- bonus is provided to reenlistments that occur between twenty-one months ofactive Federal service and ten years of Active service. Army Regulation 601-280, chapter 5-6. A,,Zone B" reenlistment is one that occurs between six years and ten years of active service. Id. The regulations provide that ,,[a] qualified soldier may be paid an SRB only once within each zone oritigititity.- ra. SSG Lieber alleges that on or about August 29, 2012,he signed a second reenlistment contract with the Army which included a promise that he would be provided with a lump-sum reenlistment bonus of$10,400. compl. 4. He further alleges thaiupon signing the tf contract he immediately took an oath of reenlistment in the presence of his fellow serviie m-embers. ld. According to the "Enlistment/Reenlistment Document', attached to the plaintifFs complaint' at the time he signed the agreement, SSG Lieber had already served some five years, nine months, and twenty-eight days of active duty; his re-enlistment was for an additional sixyear period. Section 8(a) ofthe Form indicates that SSG Lieber would receive an .,Overseas Assignment Reenlistment option (Hawaii Ap)" and an,.sRB A zone', paidin a lump sum as authorized by "IAW Milper Message 12-295 para 4." In addition, in part II of the document, there is a handwritten notation from SSG Lieber, recording that he had be"n p.oo,is"J u fro,+oo bonus and reassignment to Hawaii. contentions is through a motion for summary iudgment. Lewis v. united states, 114 Fed. 682,684 n.l, 685 (2014); Williams v. United Staies, 100 Fed. Cl. 26,3 J,65 (both convertrng govemment's motions to dismiss or in the altemative for judgment on the administrative record to motions for summary judgment). eLl) cl. ] lh3 reeulations provide that the "MoS designated for the [selective Reenlistment Bonus- 'lllP"t *itt be announced by message from commander, HRC-Alexandria, AX 35. Attn: AHRC-EPR.. SSG Lieber alleges that the next day, on or about August 30,2012, he was notified that he should report to the Retention office to discuss his contract. compl. 5. At that time, he was fl told "that the contract was written incorrectly and would not be honored." Id. Specifically, sSG Lieber states that he was informed that because he had already received a bonus in his ,.Alpha zone" ('ls. zone A) he was ineligible under Army Regulations to receive a second one. Id. According to a swom statement submitted by Sergeant First class ("SFC") Jedediahwells, on August 29, he discovered that SSG Lieber had already received the zone A bonus and that, because of this "discrepancy," ssG Lieber was not eligible for a zone B bonus until November 2012; he explained this to SSG Lieber on August 30. ARTab85 at 109-111. Thereafter, ssG Lieber complained to the Inspector General's office, which refened him to the Post Retention office. compl. fl 5. According to SSG Lieber, he received assurances from SFC Prada in the Post Retention Office "that there was nothing to worry about" and that he would still receive both his assignment to Hawaii and the $10,400 bonus. Id. SFC prada told SSG Lieber that he would 'Just have to wait until the 1't of November 2011, as that would mark the beginning of [SSG Lieber's] seventh year on active duty." Id. Despite these assurances, on September 17 ,2012, SSG Lieber received a phone call again that he would not be receiving the $10,400 bonus. compl. 15. In fact, MILPER Message 12-294, which was released on that day, stated that, effeciive october 15, 2012, soldiers with SSG Lieber's MoS and rank were noi eligible for an sRB. AX 16. Although sSG Lieber's command requested an exception from the new policy for him, the Army disapproved the request. AR Tab Br at 62, Tab 84 at 6g. According toih" gou"-,n"nt (Def.'s Mot' 6), at that point the Army gave SSG Lieber the option of eitheriequesti-rg processing for a defective or unfulfilled reenlistment request in order to re-establish his ireviou"s May 29,2013 Expiration Term ofService Date, or conecting his reenlistment to refleit no bonus entitiement. He chose the latter, executing a new enlistment document that reflects the assignment to Hawaii but no bonus. AR Tabs Al-3. notif ing him DISCUSSION The Court of Federal claims has jurisdiction under the Tucker Act to hear .,any claim against the United States founded either upon the constitution, or any Act ofcongress or any regulation ofan executive department, or upon any express or implied contract wiih the united states, or for liquidated or unliquidated damages in caies not sounding in tort." 2g u.s.c. $ 1a9l(a)(1) (2006). The Tucker Act waives the sovereign immunity oithe United States to allow a suit for money damages, united States v. Mitchell, +or u.s. 206,2r2(r9g3), but it does not confer-any substantive rights on a plaintiff. united states v. Testan 424 u.s. 3g2,lsz 1t0rc1. , Therefore, a plaintiff seeking to invoke the r Tu.k". Act jurisdiction must iienti$, an independent source ofa substantive right to"ou.t damages from the money United States arisins out of a contract, statute, regulation-or constitutional provision. run', rt"l"opt". se*.. tn". u.?.i. Aviation Admin., 525 F.3d t299,1306 (Fed. Cir. 2008). In deciding a motion to dismiss for lack ofsubject matter jurisdiction, the court accepts as true all undisputed facts in the pleadings and draws ali reasonable inferences in favor of the plaintiff. Trusred Integrarion. Inc. v. United Stares, 659 F.3d 1159, il63 rne 6ea. clr. courtmay go outside of the pleadings when ruling on a motion to dismiss under RCFC li(bx1) and "inquire into jurisdictional facts" to determine whether it has jurisdiction. Rocovich v. ioirj. United States, 933 F ,2d 991,993 (Fed. Cir. l gg l ). It is well established that complaints that are filed by gq se plaintiffs, as this one is, are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 5l9,520 (1972). Nonetheless, even p1q se plaintiffs must persuade the court that jwisdictional requirements have been met. Bemard v. United States, 59 Fed. Cl. 497, 499 (2004), affd,98 Fed. App'x 860 (Fed. Cir. 2004). In this case, SSG Lieber does not allege a statutory or regulatory entitlement to receive the bonus he seeks, and the court's independent analysis has not detected any basis for such a claim. see Martinez v. united states. 77 Fed. cl. 319,323 (2007) (observing that where a complaint has been filed by a pro se litigant, the court should look to the record as well as the complaint to determine if the plaintiff"has a cause of action somewhere displayed") (quotrng Ruderer v. Unired states. 412F.2d,1285,1292 (ct. cl. 1969)), affd.260 ria. app;xiea cir.2008) (per curiam). Instead, 6ia. he has alleged a right to recover damages based on an alleged breach of contract by the govemment.' While this Court has jurisdiction over claims founded on contracts with the government, it is well established that a service member's entitlement to pay and other benefits is set by statute and regulation and not by contract. United States v. Larionoff,43l u.s. s64, s69 (1977); schism v. united states. 316 F.3d 1259,1272 (Fed. cir. 2002) (enbanc). Therefore, the failure to pay a military bonus does not give rise to a claim for breach of contract. Favreau v. United states, 3 17 F .3d 1346, 1356-57 (Fed Cir. 2002;; see also Bell v. united states,166 u-sj93, 401 (1961) (observing that "commonlaw rules governing e no place in the area of military pay"). Nor can the doctrine of equitable ;;toppel be invokedto.nubl" th" plaintiffto enforce the verbal and written representations made to him about his bonus entitlement' under equally well-established precedent, promises made by military personnel regarding bonus entitlements that are inconsistent with governing laws and regulations may not serve as the basis for a claim for monetary relief. parker v. Unitid States 461F g06, sd9 (ct. .2d , c_1. 1972); see also Brant v. United states 597 F.2d716,7t0 (cl. ct. 197t). As the Supreme court observed in office of personnel Management v. Richmond, 496 u.S. 4r4,416, 4rg-20 (1990), thc doctrine ofequitable estoppel cannot provide a basis for recovering ,non"t*y benefits that have been mistakenly promised by igovemment official because',.paymenis of money from the Federal rreasury are limited to those authorized by statute.,' Fo, ti"r" ..u.o.,r, the court lacks jurisdiction over SSG Leiber's claims under the Tucker Act. see Moden v. priuut 13"^nt-"t-*1ff aoes not appear to be alleging a statutory claim for a re-enlistment bonus under 37 U'S'C' $ 308 (and the Court's independent analysis has for.rnd no apparent basis for such a claim) Therefore, the Court need not resolve the merits ofthe government-'s argument that section 30g is not a "money-mandating" statute for purposes ofinvJking this Courtis Tucker Act jurisdiction because it employs the term "may" with reipect to the Seciary's decision to grant eilistment bonuses. The court notes, nonetheless, thai the govemment's argument appeis to conflict with the Supreme Court's decision in Uurla(! States v. Larionoff, 431 a.S. g64,^ti69 (1977), in which it considered and favorably adjudicated claims fo, enlistment bonuses based on'section 30g, brought by a class of service members. see also parker v. United states 46r F .2d s06 (ct. cr , 1972) (exercising jurisdiction over claim for enlistment bonus under section 308); Hale v. United Fed' cl. 339, 346 (2012) (expressly holding that Tucker A"tiu.irai"tion ti". claim based on 37 u.S.c. g308i(a)(l) foi prioi-service enlistment bonus for reservists). S-tates, 107 toi: United States, 404 F.3d 1335, 1341 (Fed. Cir. 2005) (dismissal for lack ofsubject matter jurisdiction is appropriate where a claim is "foreclosed by prior decisions of [the Supreme] court, or otherwise completely devoid of merit as not to involve a federal controversy") (quoting Steel Co. v. Citizens for a Betrer Env't, 523 U.S. 33, 89 0998)) . CONCLUSION SSG Leiber has not met his burden of demonstrating that this Court has jurisdiction over his claim that the govemment wrongfully denied him a reenlistment bonus. Foi that reason, the govemment's motion to dismiss pursuant to RCFC l2(bx1) is GRANTED and the complaint is dismissed without prejudice. IT IS SO ORDERED. ELAINE D. KAPLAN Judge
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