Moss v. United States

101 Fed. Cl. 611, 2011 U.S. Claims LEXIS 2192, 2011 WL 5600532
CourtUnited States Court of Federal Claims
DecidedNovember 8, 2011
DocketNo. 09-708 C
StatusPublished
Cited by3 cases

This text of 101 Fed. Cl. 611 (Moss v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moss v. United States, 101 Fed. Cl. 611, 2011 U.S. Claims LEXIS 2192, 2011 WL 5600532 (uscfc 2011).

Opinion

OPINION

BUSH, Judge.

This military retirement pay dispute is before the court on defendant’s motion for partial dismissal, under Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal Claims (RCFC), and on defendant’s motion for judgment on the administrative record, under RCFC 52.1.1 These motions have been fully briefed, and oral argument was neither requested by the [613]*613parties nor deemed necessary by the court. For the reasons stated below, defendant’s motions are granted.

BACKGROUND2

1. Retirement Pay Dispute

Plaintiff Robert L. Moss enlisted in the active duty United States Air Force in 1962, and served in the Air Force, Air National Guard or United States Air Force Reserve (collectively, Air- Force or service) until 1992. Pl.’s Resp. at 1. Mr. Moss voluntarily separated from the Air Force on June 5, 1992 at the age of forty-seven, and accepted a Special Separation Benefit (SSB) for voluntary departure from the service in the amount of $101,896.78. Def.’s Mot. at 4; AR-I at 54. The SSB was to be recouped in its entirety by the service if Mr. Moss became eligible for Reserve retirement pay at age sixty. AR-I at 22, 54. The SSB agreement notified Mr. Moss that the SSB of $101,896.78 would be subject to federal and state income tax withholding. Id. at 54. Indeed, $20,379.35 was withheld from the SSB for federal income tax, and $4075.87 was withheld for state income tax. Orig. Compl. ¶ 1; AR-III at 59-60.

Mr. Moss asserts that there is a discrepancy between the SSB total amount he agreed to and the SSB payment he received in 1992, even when the income tax withholding amounts were taken into consideration. According to his calculations, he should have received a net amount of $77,441.56, but only received $71,876.38. Orig. Compl. ¶ 1. Mr. Moss suggests that the payment of $71,876.38 reflects an underpayment of his SSB, perhaps in the amount of $5565.18. Id.; see also February 16, 2011 Joint Status Report (JSR), at 2-3, 6-8. The court shall refer to this particular allegation of error as the SSB underpayment claim.

Before becoming eligible for military retirement pay, Mr. Moss applied for disability benefits from the United States Department of Veterans Affairs (DVA) on July 27, 2004. Pl.’s Resp. at 2. His initial claim was denied. Id. Mr. Moss was placed on the military retired list on November 19, 2004, and was notified in December 2004 that his retirement pay of $2943 per month would be reduced to $404.31 per month in order to recoup his SSB. Id.; AR-I at 41.

The record before the court shows that Mr. Moss repeatedly contested certain aspects of his SSB agreement. For example, he is noted to have sought relief from the Air Force Board for Correction of Military Records (AFBCMR or Board) before November 1, 1994, where he “question[ed] [the requirement for] repayment of the SSB upon receiving his retirement pay.” See AR-I at 23. Apparently, however, the Board did not relieve him of his SSB repayment obligation. Mr. Moss also raised the issue of the repayment of his SSB in a letter to the service sent October 20, 2004; the answer provided by the Defense Finance Accounting Service (DFAS) was that the SSB recoupment was required by federal law. AR-I at 41. Once recoupment had begun, Mr. Moss applied for relief from the AFBCMR in December 2004, noting that eighty-seven percent of his monthly military retirement pay was being recouped to pay his SSB obligation. AR-I at 12-13. It is unclear from the record whether plaintiff received an official rejection of his request at that time, but the AFBCMR eventually addressed his concerns regarding the SSB recoupment and formally rejected his request for relief in late 2010. AR-I at 10-11; AR-III at 4.

In the early years of his military retirement, Mr. Moss continued to pursue disability benefits from DVA and was granted a ten percent disability rating in May 2007. AR-I at 119-20. His disability benefits were made retroactive to July 2004. Id. at 120. No SSB recoupment, however, was drawn from his disability benefits. Pl.’s Resp. at 3. [614]*614Plaintiff asserts that the government’s SSB recoupment efforts between 2004 and 2007 should have been directed toward his disability benefits, not to his military retirement benefits. See Compl. ¶ 2; Orig. Compl. ¶ 2; Pl.’s Resp. at 3. The court shall refer to this particular allegation of error as the misdirected SSB recoupment claim.

Mr. Moss states that he eventually chose to accelerate the recoupment of his SSB obligation by borrowing money from his credit union and sending a large payment to DFAS, in order to receive the full amount of his monthly military retirement benefit from that point forward. Compl. ¶ 3. Thus, on August 15, 2007, his credit union sent a check in the amount of $16,692.91 to DFAS. Id. It is undisputed that the amount of this cheek exceeded plaintiffs remaining SSB obligation. DFAS returned a $3387.49 credit to plaintiffs credit union account. Id.; AR-I at 78. Mr. Moss claims that the credit received was incorrect, and that DFAS should have refunded him $5284.28, not $3387.49. Compl. ¶ 3. The court shall refer to this particular allegation of error as the SSB recoupment overpayment refund claim.

II. Procedure

The complaint presents plaintiffs claims in four paragraphs, along with a fifth paragraph that is in essence a prayer for relief. The first paragraph contains the SSB underpayment claim, and perhaps other claims: “[DFAS] made ... miscalculations in accounting, and unjustifiable deductions [inflating the amount of SSB recouped beginning in 2004].” Compl. ¶ 1. The second paragraph contains the misdirected SSB recoupment claim, alleging that the “failure of [DFAS] and [DVA] to properly ... disposfe] of Plaintiffs retirement pay and disability pay” harmed plaintiff. Id. ¶2. The third paragraph states plaintiffs SSB recoupment overpayment refund claim: “[T]he amount remitted [by plaintiff] was in excess of the current [SSB] balance due, and a credit in the amount of $5284.28 should have been issued, instead of the $3387.49 that was issued.” Id. ¶ 3. The fourth paragraph addresses the amount of the SSB that was withheld for state income tax in 1992 and that was recouped beginning in 2004, and asserts that “Defendant violated Plaintiffs 5th and 14th amendment rights by deducting from Plaintiffl’s] retirement pay an amount to replace an amount previously withheld to pay State income tax.” Id. ¶ 4. The court shall refer to this claim as the improper state tax recoupment claim.

The prayer for relief summarizes plaintiffs suit, and states that “Defendant has ... recouped over and above the amount actually received by the Plaintiff [and] Plaintiff has received absolutely zero from this process.” Compl. ¶ 5. Plaintiff requests “$25,000.00 in compensatory damages, and $250,000.00 in general and special damages.” Id. Mr. Moss also requests costs and fees for the action brought in this court.

Mr. Moss also sought relief from the AFBCMR regarding his SSB obligation and the recoupment of the SSB from his military retirement pay, as previously noted. He again petitioned the AFBCMR in 2009, a few months before filing his claims in this court. See Pl.’s Mot. to Stay/Remand, filed June 17, 2010, Att. 1. Before ruling on defendant’s dispositive motions, the court remanded plaintiffs claims to the AFBCMR, as requested by the parties.

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Cite This Page — Counsel Stack

Bluebook (online)
101 Fed. Cl. 611, 2011 U.S. Claims LEXIS 2192, 2011 WL 5600532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moss-v-united-states-uscfc-2011.