Porterfield v. Army Review Board Agency

• Court: District Court, District of Columbia
• Decided: February 6, 2019
• Docket: Civil Action No. 2018-1472
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) DEMIKA UNTURIA PORTERFIELD, ) ) Plaintiff, ) ) v. ) Civil Action No. 18-1472 (EGS) ) ARMY REVIEW BOARD AGENCY, ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION Plaintiff brought this action to challenge an “unfair decision made at the ABCMR,”

Compl. at 1, the Army Board for Correction of Military Records. According to plaintiff, the

Army twice demoted her, from E-7 to E-6, and from E-6 to E-5. Compl. at 1. She has asked this

Court to restore her rank and to award her “back pay . . . in the amount of $556,234.” Id.

On October 4, 2018, defendant filed a motion to dismiss under Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6). (ECF No. 8.) On October 15, 2018, the Court issued an order

(ECF No. 9) advising the pro se plaintiff of her obligation under the Federal Rules of Civil

Procedure and the Local Civil Rules of this Court to file an opposition to defendant’s motion,

and of the consequences of her failure to oppose the motion. The order set a deadline of

November 23, 2018 for plaintiff’s opposition, and the Clerk of Court sent the order to plaintiff at

her address of record. Plaintiff has advised the Court by letter (ECF No. 11) that she would not

be responding to defendant’s motion. Absent a timely and substantive response from plaintiff,

the Court rules on defendant’s motion without the benefit of plaintiff’s position.

1 Defendant moves to dismiss the complaint under Rule 12(b)(1) for lack of subject matter

jurisdiction. Specifically, defendant argues that a plaintiff’s claim for monetary damages in

excess of $10,000 is subject to the exclusive jurisdiction of the United States Court of Federal

Claims, not this federal district court. See Mem. in Support of Def.’s Mot. to Dismiss at 4-5. The

Court concurs. Where, as here, “[t]he complaint expressly demanded the entry of a judgment

including an award of back pay exceeding $10,000[, u]nder the Tucker Act, the Court of Federal

Claims . . . ha[s] exclusive jurisdiction over [the] claim.” Palacios v. Spencer, 906 F.3d 124,

126-27 (D.C. Cir. 2018) (citations omitted). It is plaintiff’s initial burden to establish by a

preponderance of the evidence that this Court has subject matter jurisdiction over her claim. See,

e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Citizens for

Responsibility and Ethics in Wash. v. U.S. Dep’t of Homeland Sec., 527 F. Supp. 2d 101, 104

(D.D.C. 2007). This plaintiff does not meet her burden, and the Court will dismiss her claim for

damages for lack of subject matter jurisdiction. See Brown v. Mattis, No. 16-cv-1025, 2018 WL

6433754, at *5 (D.D.C. Dec. 7, 2018), appeal docketed sub nom. Brown v. Shanahan, No. 18-

5382 (D.C. Cir. Dec. 31, 2018).

Insofar as plaintiff seeks review of an ABCMR administrative action, defendant moves to

dismiss the complaint under Rule 12(b)(6). See Def.’s Mem. at 5-6. To survive a motion to

dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This plaintiff is

proceeding pro se, and the Court holds her complaint to a less stringent standard than would be

applied to a complaint prepared by a lawyer. See Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(per curiam). Even judged by this relaxed standard, plaintiff’s complaint falls short. Plaintiff

2 challenges an ABCMR decision, yet her complaint and its attachments fail to identify the “unfair

decision” at issue in this case. The Court is left with vague and conclusory assertions without

sufficient factual allegations to state a plausible legal claim. Therefore, the Court grants

defendant’s motion and dismisses the complaint. See, e.g., Voinche v. Obama, 744 F. Supp. 2d

165, 176 (D.D.C. 2010) (dismissing constitutional claims because complaint containing “only

vague assertions of purported constitutional violations . . . fail[s] to provide the ‘requisite

specificity’ needed to survive a motion to dismiss”), aff’d, 428 F. App’x 2 (D.C. Cir. 2011) (per

curiam).

An Order is issued separately.

DATE: February 6, 2019 /s/ EMMET G. SULLIVAN United States District Judge