lln tbB Glnrte! $tutls @ourt of fre\ersl @lstms No. 18-496C Filed: December 27 ,2018 *,t rr * rr * * * * * *,f * * * * + *****+********** r. ** :f ** *
CHRISTINE E. STAHL,
Plarntiff, pro se,
THE TINITED STATES,
Defendant.
****+*************++*******:t**+*********
Christine E. Stahl, Tampa, Florida, Plaintiff, pro se.
Sonia Williams Murphy, United States Department of Justice, Civil Division, Washington, D.C., Counsel for the Government.
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART THE GOVERNMENT'S MOTION TO DISMISS
BRADEN, Senior Judge.
I. RELEVANT F'ACTUAL BACKGROUND.I
Dr. Christine E. Stahl was an active duty United States Air Force ("Air Force") Lieutenant Colonel ("Lt. Col."), who served for approximately 17 years and 9.5 months, most recently as the Medical Director of the Intemal Medicine Clinic of the 6n Medical Operations Squadron at MacDill Air Force Base ("MacDill") in Tampa, Florida. Compl. at 2. From December 18, 2009 to March 1, 2017, Lt. Col. Stahl was stationed at MacDill, but for a one year deployment to Afghanistan in2012. Compl. at 2-3.
In October of 2013, Lt. Col. Stahl entered into an agreement with the Air Force to accept $20,000 in Multi-Year Incentive Special Pay C'MISP') and $35,000 in Multi-Year Special Pay ('MSP'), in exchange for a four year active duty service commitment ('ADSC'). Compl. at 3. This required Lt. Col. Stahl to serve until November 30, 2017, subject to pro rata recoupment of the MISP and MSP, if she did not serve for the entire term. Compl. at 3.
I The facts herein were derived fiom the April 4, 2018 Transfer Complaint ("Compl."). In January 2014, Lt. Col. Stahl "suffered hardship" caused by her mother's death and a divorce proceeding that resulted in shared custody of her two children' Compl at 3 '
In December 2015, Lt. Col. Stahl was selected for promotion to colonel, with an expected promotion date of May 2017 . Compl. at 4.
on March 15. 2016. the Air Force colonel Management office ("colonel's Group") notified Lt, Col. Stahl that she was being reassigned to Lackland Air Force Base in Texas (,.Lack1and"). Compl. at 3. Lt. Col. Stahl declined the assignment and instead elected to separate from the Air Force, pursuant to Air Force Instruction ('AFf) 36-2110, $ 2.30 (Sept. 22,2009)' that provides officeis a seven day option to accept or reject an assignment, by requesting a separation. Compl. at 3. The Air Force "told [Lt. Col. Stahl that she] had no other choice but to request separation and join the reservesfl" she was not informed thatshe could "request a hardship waiver in lieu of assignment[,]" putru*t to Air Force Instructions.2 compl. at 3-4. On March 16,2016, Lt. Col. Stahl applied for a separation date of July 1, 2016' Compl' at4'
on May 21,2016, Lt. Col. Stahl was notified that she had been promoted to the rank of colonel and was instructed to "pin on" the rank of colonel the next working day. compl. at 4 on July 18, 2016, Lt. Col. StahLwas instructed to remove the rank of colonel and replace it with the rank ofLt. Col, without any explanation. Compl. at 4.
On November 16,2016,Lt. Col. Stahl formally withdrew her separation request by a letter to the lead assignments officer, Lt. Col. Nate Somers, liting AFI36-3207 , $ 2.14.1 (July 9, 2004).3 Compl. at S. ft. Cot. Somers informed Lt. Col. Stahl that, nonetheless, she would be separated and February 1, 2017 was her separation date.a Compl. at5'
2 aFI 3o-Zt t0, $ A24.1 (Sept. 22,2009) states that a reassig@ent or deferment "may be Air Force." To be eligible, a servicemember approved when it is clearly in the best interests of the must substantiate a humanitarian problem involving a family member "that is more severe than usually encountered by other Air Force members with a similar problem." AFI 36-2110, $ A24.5.1 (Sept. 22,2009). AFI 36-2110 provides examples of requests that ale normally. disproved, inciuding requests "associated with child care arrangements" and "[t]hreatened separation, divorce action, or the desire to pursue child custody." AFI 36-2110,55 A247 2'9(Sept'22'2009)'
3 AFI36-3207, $ 2.14.1 provides that officers may request withdrawal of (1) "an approved [date of separation ("DOS")] r,rp to 30 days before the DOS takes effect by giving reasons for the withdrawal and stating that they have not traveled or used the separation orders to move family members, ship household goods, or receive advance travel entitlements[;]" or (2) "a pending separation apflication by giving reasons for the withdrawal." AFI 36-3207 , $ 2.14.1 . i-2 (July 9, zob+;. nut, an 36-3207, $ 2.14.1 also contains an exception that states: "officers may not submit withdrawal requests within 30 days of their approved DoS unless the lequest is for hardship." AFI 36-3201, $ 2. 14. 1 (July 9, 2004). 4 AFI 36-ZltO, 2.30.1.1 states, in pertinent part, that "[t]he decision to approve or $ disapprove the withdrawal request will be based upon the best interest ofthe Air Force." AFI 36- 2110, $ 2.30.1.1 (5ep1.22,2009). onJanuary5,2oIT,theSecretaryofAirForcePersonnelCounselC.SAF/PC)approved the separation date of February 1,2017, but cleclined to waive the ADSC. Compl. at 5. As aresult, MSP Lt. C;1. Stahl owed the Air Foice the amount she received for the pro-rated MISP and bonuses. Compl. at 5.
On January 9,2017, Lt. Col. Stahl received orders reflecting a voluntary ho-norable discharge and separation date of February 1,2017. CompL at 6' On Jantary 26'2017'Lt' Col' her November 16,2016 Stahl \^/Tote Lt. Col. Somers that she had not heard a response about tasks prior to withdrawal of separation and was concemed about completing the necessary r course Compl at 6' separation, including taking a Transition Assistance Program C'TAP')
onJanuary30,20l7,Lt.col.Stahl'sseparationdatewasextendedtoMarch|'2011. Compl. at 6.
on February 8,2017,Lt. Col. Stahl contacted the colonel's Group to notiry ths Air Force of her intention to seek a writ of prohibition from the United States Court of Appeals for the Armed that Lt. col' Forces to receive retirement benefits. compl. at 7. The colonel's Group responded about the procedure Stahl would be separated on Mar ch 1 ,2011 and provided her with information for withdrawing a separation request by obtaining an endorsement ftom the wing commander. compl. at 7. On Fe-bruary 13,2017, Lt. Col. Stahl requested an endorsement from her wing commander. compl. at 7. on February 20,2017 , the wing commander met Yth Lj. col Stahl, but denied endorsement of the February 13,2017 withdrawal request, stating that "it was at her complete discretion to do so." Compl at 7.
onFebruary16,20I7,Lt'Col.StahlcompletedacorrespondenceversionoftheTAP course. Compl. at 6.
on February 20,2017, Lt. Col. Stahl requested assistance and clarification from the prior SAF/PC about her November 16, 2016 and February 13,2017 requests to withdraw the separation request, but did not receive a reply. Compl'at7'
s TAp is a congressionally mandated course designed to "provide for individual pre[-]separation counseling of each member of the armed forces whose discharge or release from u"tiul auty is anticipated is of a specific date." 10 U.S.C. $ 1142(a) (effective Dec. 72,2017 to Aug. 12, 2018; an identical regulation was in effect from Jan. 2,2013 to Nov. 24, 2015). ,.shall commence as soon as possible . . [and] in no event shali pre[-]separation counseling counselinf commence later than 90 days before tlle date of discharge of release[,]" unless ,,separatio-n is unanticipated until there are 90 or fewer days before the anticipated retirement or separation date . . . [then] pre[-]separation counseling shall begin as soon as noss]ble within the remaining period of service-." 10u.s.c. $ 11a2(a)(3)(A), (B) (effective Dec. 12,2017 to A]ug. 1'2, 2018; anldentical regulation was in effect from Jan. 2,2013 to Nov. 24, 2015). AFI 36-3203 $ 1.9 states that "TAP larticipation is mandatory for ail eligible separating Service members with 180 days of active duty or more. Members are required to contact the installation Airman & Family Readiness Centers (A&FRC) to be scheduled for the TAP." AFI 36-3203 $ 1'9(Sept 18,20l5)' On March 1,2017 , Lt. Col Stahi separated from the Air Force' Compl' at 7' Dr' Stahl the Air was unemployed for the next four months. Compl. at7. OnMay 1,2017,Dr. Stahl repaid Force the $15,122.08 for the MISP and MSP. Compl. at 5-6
on June 26.2017, Dr. Stahl was rehired at MacDill as a civilian doing the same work she previously performed. Compl. at 8.
II. PROCEDURALHISTORY.
on February 27, 2017 ,Dr. Stahl ("Plaintiff') filed a pro se complaint in the United States District court for the Middle District of Florida, Tampa Division ("District court"). on April 4, 2018, the District Court tralsfened the case to the United States Court of Federal Claims and plaintiff filed apro se Transfer Complaint in the United States Court of Federal Claims. The April 4, 2018 Transfer Complaint alleges that Plaintiff was discharged from the Air Force without cause, in violation of: (1) the due process clause of the Fifth Amendment to the united states Constitution; (2) promissory ;stoppel; (3) "Congressional Mandate[;]" and (4) Air Force regulations. io*pt. ut A. h addition, the April 4, 20i8 Complaint alleges retaiiation and inlentional in-fliction of emotional distress. Compl. at 8-9. The April 4,2018 Transfer Complaint (3) the requests: (1) back pay; (2) the cost of medicai insurance for four months of unemployment; .,recouped p.orated medical specialty bonus pay[;]" and (4) "reinstatement at the rank of colonel with credit for time in service lost," together with interest, or "immediate fuil active duty letilement benefits (with credit for a minimum of 24 years of military service) " Compl' at 9'
On May 31, 2018, the Govemment filed an Unopposed Motion For An Enlargement Of Time to file u rl.ponr". On June 1, 2018, the court granted the May 31, 2018 Unopposed Motion'
on June 19.2018, the Government fiied a second Motion For An Enlargement of Time to file a response. on June 21,2018, the coul granted the June 19,2018 Motion. That same day, the Govemment filed an Administrative Record ("AR 1-79") alld a Motion To Dismiss And Alternatively, For Judgment On The Administrative Record ("Gov't Mot ")'
on August 22,20|8, Plaintifi by leave of the court' frled a Response To The Motion To Dismiss And cross-Motion For Judgment on The Administrative Record ("P1. Resp.").
on september 6, 201 filed a Reply In Support of Its Motion To Dismiss 8, the Govemment And Alternatively, For Judgment on the Adminishative Record ("Gov't Reply")'
ilI, DISCUSSION,
A. Subject Matter Jurisdiction.
Subject matter jurisdiction is a threshold issue that a court must determine at the outset of acase. sei steel Co. v. Citizens for a Better Env't,523 U.S. 83,94-95 (1998) ("The requirement that jurisdiction be established as a threshold matter 'spring[s] from the natwe and limits ofthe judiiial power of the United States' and is 'inflexible and without exception."') (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 3'19,382 (1884))- jurisdiction to The Tucker Act authorizes the United States Court of Federal Claims with .,any claim against the United States founded either upon the Constitution-,_ or any Act adjudicate of"Co.rgress oiany reguiation ofan executive department, or upon any express or implied_contract with th-e United States, or for liquidated damages in cases not sounding in tort." 28 U.S.C S Nation, 1a9l (a)(i ). The Tucker Act does not "create[] substantive right s." United States _Navajo v
556 U.S. i1l,ZSO (2009). lnstead, the Tuckir Act is a 'lurisdictional provisionfi that operate[s] waive sovereign immunity for claims premised on other sources of law (e.g., statutes or to contracts)." 1d
TopursueasubstantiverightundertheTuckerAct,aplaintiffmustidentifrandpleadan independent contractual relationship, Constitutional provision, federal statute, and/or executive agency regulation that provides a substantive right to money damages See Todd v United States ' tIO p.:a iOSt, tOS+ $ed. Cir. 2004) ("[J]urisdiction qnder the Tucker Act requires the litigant to the Tucker identifu a substantive iight for money damages against the United States separate from ectt.l'i. ,,The other source of law need not .*pli"itly provide that the right or duty it creates is enforc"able through a suit for damages, but it triggers liability only if it 'can fairly b-e interpreted U.S.. at 1552 as mandating coripensation by the Federal Government."' Navajo Nation,556 (quoring United S;atus v. Testan, 424 U.S. 392, 400 (1976)). "This 'fair interpretation' rule ai.*Oi a showing demonstrably lower than the standard for the initial waiver of sovereign immuniry.. Holmei v. United Stdtes,657 I.3d 1303, 1309 (Fed. Cir. 201 1) (citations omitted).
The court addresses whether it has subject matter jurisdiction to adjudicate each of the claims alleged in the April 4, 2018 Transfer Complaint at Section IILD '4, infra'
B, Standing.
Article III of the United States Constitution limits the jurisdiction of federal courts to ..cases" and ..controversies." Bank of Am. corp. v. City of Miami, Fla., 137 S. Ct. 1296' 1302 (2017). Therefore, the parry "invoking federal jurisdiction bears the burden of establishing the[ ] elements [of standing].,; Lujanv. Defs ofll/ildiife,564U.S.555,56i (1992). To demonstrate the existence ofa case or contoversy, a itaintimmust show "an 'injury in fact' that is 'fairlytraceable' ithat is likely to be redressed by a favorable judicial decision'"' to the defendant's conduct and Bank of Am' Corp', |37 S. Ct. at 1302 (quoting Spokeo, Inc. v' Robins, 136 S. Ct. |540' 154./ the same (2016)i. The Uniied States Court ofFederal Claims, although an Article I court, ' applies st*dir1g ,"qoi."ments enforced by other federal courts created under Article IIl." Weeks Marine, Inc. v. [Jnited states, 575 F .3d 1352, 1359 (Fed. cir. 2009).
The April 4, 2018 Transfer Complaint alleges that the Air Force involuntarily discharged Plaintiff from service resulting in monetary injury in the form of lost pay, medicai insurance costs' and lost retirement benefits. Compl. at 8-9. Therefore, the April 4, 2018 Transfer Compiaint alleges an injury in fact that is "fairly traceable" to the challenged Air Force actions and that can (Fed' be riclressedby a favorable decision. See Pittman v. United States, 135 Fed. Cl' 507 ' 522 cl.2017) (determining that a retired service member had standing, because "a favorable decision by the court would allow Plaintiffto recover that back pay owed")'
For these reasons, the court has determined that Plaintiff has standing to seek an adiudication of the claims alleged in the April4,2018 Transfer Complaint' C. Standards Of Review. party to Rule 12(bX1) of the united States court of Federal claims ('RCFC') authorizes_a hle a motion asserting a "lack of subject-matter jurisdiction." RCFC 12(bx1). "In deciding a tnre all uncontroverted motion to dismiss for lack of subject mitter jurisdiition, the court accepts as to the plaintiff " factual allegations in the compla"int, and construes them in the light most favorable Stephens v. (Jnited States, SS4 F.3d 1 151, 1 1 55 (Fed. Cir' 2018) (citations omitted)'
Rule 12(bX6) of the united states court of Federal claims authorizes a party to file a ,.failure to state a claim upon which relief can be granted." RCFC 12(bX6). motion asserting a ,,To s'rvive a flule 12(bX6) motion, [a] complaint must allege facts plausibly suggesting (not F'3d merely consistent with) a showing of entitlement to relief." Harris v. United states,868 "accept court must 1376,1379 (Fed.Cir.2017) (citations omitted). And, as with Rule 12(b)(1),the all wlll-pleaded factual allegations as tnre and draw all reasonable inferences in [the plaintiff s] favor." Id. " It has been the hadition of this court to "interpr et la) pro se complaint liberally f7us3 v' rn a Bauer,138 S. Ct. 2561, 2563 (2018). Nevertheless, while the court may excuse alnblguoes (lnited fa1hxes." Henke.v. pro se plaintiff s complaint, the cou.t "does not excuse [a complaint's] 'states,'60 court's F.3d 7g5, 1g9 (Fed. cir. 1995). A pro se plaintiff must still establish the jurisdiction.SeeTindlev.UnitedStates,56rea.ct.33T'34|(Fed'C1.2003)(..Thefactthat pluintiffi, pro"" edlngpro se, however, does not change the ultimate legal standard and plaintiff s
still^meetminimal turden of proof on subject matter jurisiiction."l. And, a pro se plaintiff "mLxt standards io avoid dismissal undei Rule 12(bX6)." Onah v. Fiat Chrysler,884 F'3d 1135' 1141
(Fed. Cir. 2018).
D' The Government's June 21, 2018 Motion To Dismiss'
1. The Government's Argument'
The Govemment argues that the court should dismiss the April 4' 2018 Transfer Complaint's due process anipromissory estoppel claims Gov't Mot' at 1 1' The court does not .,to adjudicate claims arising under the [D]ue [P]rocess [c]lause of the Fifth have jurisdiction Gov't Mot' Amendment to the United States Constitution[,i because [it is] not money-mandating'" at 13 (citation omitted). The court also does not have jurisdiction to adjudicate a claim for promissory estoppel. Gov't Mot. at 13
In addition, the April 4, 2018 Transfer complaint fails to state a claim upon which reiief can be granted for involuntary discharge, because Plaintiff voluntarily resigned from military service. Gov,t Mot. at 15. Instead of accepting her promotion and reassignment, Plaintiff ..knowingly and voluntarily decided to exercise her 7 day option to separate the Air Force'" _from Gov't Mot. at 15. Granting a hardship request is within the discretion of the Air Force' Gov',t Mot. at 15. Therefore, whether the Air Force failed to inform Plaintiffofthe possibility ofseeking a hardship request does not alter Plaintiffs voluntary decision to separate. Gov',t Mot' at 15. In addition, plaintiff s withdrawal request does not "rebut the presumption of voluntariness[,]" the Air Force' because such a request is not automatically approved and is left to the discretion of Gov'tMot.at16. is such, the April 4,2018 Transfer Complaint "fail[s] to state a plausible Tucker Act claim[; therefore,] the [c]ourt does not have jurisdiction to order the equitable relief including reinstatement and promotion that Plaintiff requests. Gov't Mot' at 17.
In addition, Plaintiff is not entitled to recoupment of the medical specialty bonus pay, because the April4,2018 Transfer Complaint alleges that Plaintiff understood the MISP and MSP bonuses requiied her to serve until November 30, 2017 or those pay incentives could be recouped. Compl. at 3. Plaintiffdid not serve until that date; therefore, proportional recoupment was proper' Gov't Mot. at 18.
Plaintiff also does not request nor is entitled to any relief for the alleged violation of a "Congressional mandate" that presumably refers to not completing the TAP course within the proper time frame. Gov't Mot. at 18. Plaintifftook the course pdor to separation and the April 4, 20i8 Transfer Complaint does not allege that the Air Force obstructed her from taking the course. Gov't Mot. at 19. In addition, the court does not have jurisdiction to adjudicate the alleged tort claims of retaliation and intentional infliction of emotion distress' Gov't Mot' at 19'
2. Plaintiff s Response. Plaintiff responds that the "non-fiivolous allegations in [the April 4,2018 Transfer Complaint] satisfies the jurisdictional requirement" of the Tucker Act as to the due process and promissory claims. Pl.Resp.at18. The Military Pay Act is a separate money-mandating "stoppel ,tutut" thui ullo*i a wrongful discharge claim to be adjudicated by the court. PI. Resp. at 19. The Tucker Act also "allows actions upon express or implied-in-fact contracts" and "money claims against the [G]ovemment to determine issue[s] of law and fact." Pi. Resp' at 19' The Air Force did not afford Plaintiff her due process rights and did not abide by its regulations by ignoring her withdrawal request. Pl. Resp. at 20. Moreover, there are "multiple cases that have allowed estoppel to be employed against the [G]overnment." Pl. Resp' at 20'
In addition, the April 4, 2018 Transfer Complaint does state a claim on which relief can be granted, because Plaintiff involuntarily was discharged when she "unsuccessfully tried to *ithdru* [her] resignation with ample time before its effective date[.]" Pl. Resp. at 21. The Air Force disregarded Plaintiffs right to withdraw her separation request. Pl. Resp. at 22. In addition, it was not in the Air Force's best interest to decline her withdrawal request, as demonstrated by the Air Force's need for Plaintiff s services and decision to retain her for a year after her initial separation request and rehire her as a civilian after her separation. Pi. Resp. at22,28. Furthermore, "when a withdrawal ofresignation is made prior to the effective date of its execution, it cannot be arbitrarily rejected on the grounds of complete discretion." Pl. Resp. at 26 (quotations omitted). The Air Force did not provide a reason why Plaintiffls withdrawal request was in its best interests. Pl. Resp, at26. Inaddition, Plaintiff was harassed, retaliated against, subjected to a hostile work environment, and..denied the 90 days to execute what she 'leamed' in the TAP coulse[.]" Pl. Resp. at 24.
3. The Government's RePlY.
The Govemment replies that Plaintiff received orders to relocate and voluntarily resigned in lieu ofreassignment. Gov'tReplyat5. Plaintiff never had a "right" to withdraw her separation reouest: "the ultimate decision as to whether to accept the withdrawal was always in the hands of the Air Force." Gov't Reply at 5. In addition, the April 4,2018 Transfer complaint "provides no explanation for how the Aii Force allegedly 'denied' or in any way prevented her from taking the TAP course within the proscribed ninety days before her separation." Gov't Repiy al 6. It was available online' Gov't Plaintiffs responsibility to take the course that is publicly advertised and Reply at 6.
Finally, the court should ignore the claims Plaintiffraises in her Response of abuse, sexual discrimination, and hostile worklnvironment, because it is "improper for a party to:aise new claims not included in its complaint in an opposition to a motion to dismiss." Gov',t Reply at 7 (citation omitted).
4. The Court's Resolution.
a. Plaintiff s Due Process Claim'
TheTuckerActrequilesaplaintifftoidentifiasubstantiverightformoneydamagesunder Navaio an independent .o*"" of lu* thit can fairly be interpreted as money-mandating. See Nation,556 U.S. at 1552; see also Todd,386 F.3d at 1094. The united states court of Appeals for the Federal circuit has held that the Fifth Amendment Due Process clause is not money- mandating. see Murray v. united states,817 F.2d 1580, 1583 (Fed. cir. 1987) ("Although the Fifth Amindment,s due process clause provides that no person shall be deprived of property without due process of law, no language in the clause itself requires the payment of money 1095 (Fed. Cir. damages for its violation 1'); see atsi Nir^an v. United States, 429 F .3d 1081, jurisdiction over due process 2005)-(,,The [United States] Court ofFederal Claims ordinarily lacks jurisdiction to hear [] due claims'undeithe Tucker Act[.]"). -pittrTherefore, the court "does not have Drocess . . . claims ,rnd". ttt" Amendment to the United States Constitutlon." Crocker v' [Jnited states,125 F.3d 1415,1476 (Fed. Cir. 1997).
For this reason, the court has determined that it does not have jurisdiction to adjudicate the that claim for due process claim alleged in the April 4, 2018 Transfer Complaint and must dismiss lack of subject matter jurisdiction. See RCFC 12(bX1).
b. Plaintiff s Promissory Estoppel Claim'
The United States Supreme Court has held that Tucker Act "jurisdiction extends only to contracts either express or implied in fact, and not to claims on contracts implied in 1aw." Hercules' Inc. v. [Jnited Sties,516 U.S. +tZ, 423, (1996). "Promissory estoppel is another name for an implied-inJaw contact claim:' Lawndale Restoration Ltd. P'ship v. [Jnited states,, 95 Fed' cl' 49i, 506 (Fed. Cl. 2010). Therefore, the court does not have jurisdiction to adjudicate a claim based upon promissory estoppel. SeeCarterv. lJnitedstates,98Fed. cI.632,639 (Fed.cl.2011) court- has no jurisdiciion to hear a claim for promissory estoppel[.]") (citations omitted). 1"fhis For this reason, the court has determined that it does not have jurisdiction to adjudicate the promissory estoppel claim alleged in the April 4, 2018 Transfer Complaint and must dismiss that fo, lack of subject matter jurisdiction' See RCFC 12(bX1) "lui- c. Plaintiff s Tort Claims. jurisdiction to The Tucker Act authorizes the United States Court of Federal Claims with .,for liquidated damages in cases nol sounding in tort." 28 U'S.C. $ 1491(a)(1) adjudicate claims the united (emphasis added). In other words, the court "lacks jurisdiction over tort actions against itut"t)' Bro*n v. United States,l05 F.3d 621,623 (Fed. Cir' 1997)' For this reason, the court has determined that it does not have jurisdiction to adjudicate the claims of retaliation and intentional infliction of emotional distress alleged in the April 4, 2018 jurisdiction6 S"e Transfer Complaint and must dismiss those claims for lack of subject matter RCFC i2(bX1).
d' Plaintiff s Transition Assistance Program Claim'
The united states court of Appeals for the Federal circuit has held that 10 U.s.c. $ 1142 .'mandate[] money dama ges':; [Il*an v. (JnitedStates,l51F. App'x.970'973 (Fed- Cir. does not 2004). jurisdiction to adjudicate the For this reason, the court has determined that it does not have April 4, 2018 Transfer complaint's claim that the Air Force violated the TAP course tequirements and must dismiss this claim for lack of subject matter jurisdiction. See RCFC 12(bX1)'
e. Plaintiffls Involuntary Discharge Claim'
The United States Court of Appeals for the Federal Circuit has held that the Military Pay (Fed. Act, 37 U.S.C. g 204, is -on"y---iutin g. See Metz v. united States,466F.3d 991, 998 ..[T]he issue ofthe voluntariness ofa plaintiff s discharge is not jurisdictional; rather, Cir. ZOO'1. Ittl itrl u'qu"rtion that should be considered in the context of the merits of a plaintiff s case m a"i"-ining whether a plaintiff can take advantage of $ 204's money-mandating status." 1d the April Therefore, the court has determined it has jurisdiction under the Tucker Act to adjudicate 4, 2018 iransfer Complaint's claim of involuntary discharge. The plainfiff, _however, must and take advantage establish that h". "separation was involuntary in order to fit within the scope of, of, the money-mandating status of $ 204, or else h[er] claim falls for failure to state a claim upon which relief can be granted." 1d ,.A resignation is 'presumed to be voluntary. "' Moyer v. united states, L90 F.3d 1314' 1320 (Fed. Ck. 1999) (citations omitted). And, "the imposition of a less desirable altemative (mandatory retirement) does not render an otherwise voluntary retirement in-vo1untary." 1d at i3t9; ,r" also Sammt v. United States,78o F.2d 3 1, 33 (Fed. Cir. 1985) ("[A] choice of unpleasant altematives does not make a choice involuntary."). But, there are circumstances where the ljnited
6 The court does not have jurisdiction to adjudicate the claims of abuse, sexual discrimination, and hostile work environment raised in Plaintiffs Au g!;s|22,2018 Resp-onse. See do not Novosteel SA y. (Jnited States,284 F3d 1261, 127 4 (Fed. Cir ' 2002) ("[Reply briefs] provide the moving party with a new opportunity to present yet another issue for the court's consideration."); see ako Driessen v. lJnied States, 1 16 Fed. C|. l3, 44 n 10 (Fed. Cl. 2014) ("It is generally improper for a party to raise new claims not included in its complaint in an opposition to a motion to dismiss."). of voluntariness States Court of Appeals for the Federal Circuit has recognized that "the element is vitiated" and a iesignation has been held to be involuntary. See Scharfv. Dep't of the Air Fotce' a resignation 'lloq.2d 1572,15'14 (Fed. cir. 1983) (listing circumstances where courts have found pressure). Applicable in rendered involuntary, such as duress, unsuciessful withdrawal, and time this case are two such circumstances: (1) when a resignation is "obtained by -agency misrepresentation or deception[;]" and (2) when "an employee unsuccessfully tries to withdraw h[er] resignation before its effective date[.] ld.
i. MisrepresentationOrDeception' ,,An otherwise voluntary resignation or request for discharge is rendered involuntary if it . . . results from misrepresentation or deception on the part of govemment offrcers_." Tippett v.
UnitedStates,l85F.3d1250,1255(Fed.Cir.1999)abrogatedonotherCrgllndsbyMetz'466 F.3d 991; see also Moyer,l90 F.3d ;t 1320 (holding that the lower court "did not clearly err in was no finding as a fact that [the plaintifPs] retirement was voluntary[']" because there. for the Federal Circuit has held that the -i.."p"r"r.ntution). The United Stat"s iourt of Appeals would have been court'must apply an objective test to determin" *h"th"t "a reasonable person deceived] by the agency's statements." Covington v Dep't of Health & Human Servs' -irt"d 1o, 750F.;d%7,g421iei.Cir.iea+)..,lrln"."isnorequirementthatanemployeebeintentionally to h[er] detriment, deceived[,]" so long as the plaintiff "materially relies on the misinformation h[er] retirement is considered involuntary." id.; see also .Scharf, 7I0 F.2d at 1575 (holding a piaintiff "justifrably relied on . . . misleading advice to his detriment")'
April 4, 2018 Transfer Complaint alleges that Plaintiff deciined assignment In this case, the to relocate but, instead, elected to separate from the Air Force Compl' at 3' This is -sep-aration Plaintiff pi"sumed voluntary and the choice b"t*"".r "unpleasant alternatives" does not make s The April 4, iecision involunt ary. See Sammt, i80 F .2d, X 33; see also Moyer,190 F.3d at 1320. from the Air 2018 Transfer complaint, however, also alleges that Plaintiff "elected to [] separate and join the reserves[,]" Force as [she] was told [she] had no other choice but to request separation when she could have applied for a hardship exception under AFI 36-2110,SA24.1. Compl.at3- 4. Therefore, the Aprii 4, 201 8 Transfer iomplaint alt"ges that the Air Force misled or deceived in Plaintiff to believe ihat she had only two options and Plaintiff relied on that misrepresentation making her initial decision to separate' the The Government argues that any misrepresentation or deception was harmless,-because that Air Force had the ability to grant hardship requests, although AFI 36-2110 states requests ..associated with child care irangements; and "[t]hreatened separation, divorce action, or the desire to pursue child custody" tro.-utty are disproved. see AFI 36-2110, $$ 424.7.2' 9 (Sept. 22, 200r, The law, however, doei not riquire that a plaintiff must establish that a (holding misrepresentation rises to the level of being prejudi cial. See Covington, T 50 F .2d at 942 going to be abolished that a;laintiffrelied on the misinformation oi deception that "the agency was and the [plaintiff] had no right of assignment 1o another position" when the..possi bility of reassignment existedl; see alsi Tippett,l85 F.3d at 1256 (holding that the court is "not Persuaded by the [G]ovemment,s argument; that a misrepresentation "was not prejudicial"). The April 4, Zb18 Tiansfer Complaint'i allegation that the Air Force represented to Plaintiff,that her only two choices were to accept the reass=ignment or separate, when she could have applied for a hardship request. even if the Air Force was unlikely to grant such a request, is enough at this stage to
10 ..plausiblysuggest[]''.ashowingofentitlementtorelief,',Harris,868F.3dat1379(citations omitted).
For these reasons, the court has determined that the April 4' 2018 Transfer which relief can 'Complaint be granted' alleges sufficient facts to state ;;;t* i"t involuntary discharge upon basJd on the Air Force's alleged misrepresentation or deceptron'
ii' UnsuccessfulWithdrawal'
Inthecontextofacivilianresignation,avoluntaryresignationcanberenderedinvoluntary' before its effective date'" if "an employee urrro"""rrn ity* i,# to *iittat"* h[ei] .resignationcourts have found "that the scharf,7l0 F.2d at 1574 (listing withdrawal as a situation ihere F.2d 1379' 1384- element of voluntariness is tliting Cunningham v.. united states,423 "iti"t;a"l 85(ct.Cl.1970)(holdingaplaintiffsresignationwasinvoluntarYwhentheAirForcedeniedthe claims also has applied this principle in withdrawal request)). Th" u;i#itut; cEurt of Federal States,3o Fed Cl' 22'7 ' 230 (Fed Cl 1993)' aff'd' 26 military pay cases. See ar"*",-i"i'a 1998) F.3d 139 (Fed. Cir. 195+); see also Glallucci v' inned States'4l Fed' CI 631' 637.(Fed .Cl' (consideringwhetherthe""r""""ttf"fwithdrawairebuttedthepresumptionofvoluntariness)'
ThepredecessortotheUnitedStatesCourtofAppealsfortheFederalCircuithasheldthat to.accept or not' and allow [a] withdrawal "[t]he Secretary [of the Army] can exercise discretion will be sustained if not albihary ald capricious and [of a resignation] or not, anihis decision cI 1892)' Therefore' in Brown' contrary to la'w;' Cole, u"iri-srt*i'231 ct cl"lo2'704(ct' request "had no effect upon his prior the court determined that u piui*irr, a-ttempted withdraw-al Flrst, because the "decision to deny resignation,fortwo reasons.-;;; B;";",:O fea. Ct. at230. oracceptawithdrawalofresignationftomservices^restssolelywithirrthe.discretionoftheArmy.. ,,decision must be g?-r"J Ju*tial deference." Id. at 23031. second, "plaintiff s and that request was untimely."T Id. at23l.
Inthiscase,theApril4,2018TransferComplaintallegesthatPlaintiffsubmitteda offrcer and again on February withdrawal request on Nove.,ii..ig, zoio to the lead assignments 13,2017 to the Wing Co^--d"t' iompl at 5, 7' The eprit +' ZOtS Transfer-Complaint alleges aia *i'"ct on ihe withdrawal request and the wing commander that the lead assignments "tti"* u",irg only that "it was at her complete discretion denied endorsem.nt or trr" *iiia.u*"i r"q""r,,'reason-able inferences" in Plaintiff s favor' these to do so." Compl. at S, Z.---iltu*ing "'all withdrawal requests satisfy the procedural requirements ofAFI 36-3207' $ 2 14'1'8 See Hanis' 868 F.3d at 1379 (citations omitted)
TAtthisjuncture,thecourtdoesnotdeterminewhetheranuntimelywithdrawalisfatalto Fed. a claim of involuntary dir"h;;;;;Jupon an unsuccessful withdrawal . But cf. Gallucci, 41 all the conditions precedent to grantng cl. at 642 (..plaintiff must [] ie able to demonstrate that such a [withdrawal] request were fulfilled'")'
EAFI36-3207,$2.14.1statest}ratofficersmayrequestwithdrawal,of'(l)..anapproved Dosupto30daysbeforetheDostakeseffectbygivingreasonsfo.rthewithdrawa.landstating thattheyhavenottraveledorusedtheseparationorderstomovefamilymembers.shiphousehold ll Moreimportantly,althoughtheAirForce'sdecisiontorejectPlaintif|swithdrawalrequest is afforded deference, the April;, 2018 Transfer Complaint alleges that the Air Force's rejection the decision was "based upon the of plaintiff s withdrawal aiA not'*iA*"" *y ,"uronlng that 22,2009). The Wing Commander best interesrs of the Air Force.ll-npI lO-Zt t O, $ 2.30.1.1 lsept. had discretion to deny Plaintiffs withdrawa'l iequest, but ihut ulo.t" does not evidence that the See Cunningham,423 F.2d at 1384 (holding that the decision was not arbitrary *J "upti"io"r. the mutual advantage of Air Force,s stated reason of rejection, that it was "not considered to not enable the court to "discem yourself and the Air Force to-.''i11't;* this resignation[,]" tlid [any] exercise of discretion in a*yi.r! tn","rig#ion *ithd.u* al"); see also cole,23l Cr. Cl. at and contrary to ioi t;it withdrawall decision will ie s,.,stainid if not arbitrary and capricious law.").
For these reasons, the court has determined that the April 4' 2018 Transfer Complaint glanted' fot involuntary discharge on which relief can be ' alleges sufftcient facts to state u i"i; "fui- to act on Plaintiffs withdrawal request and.later decision f.il*" based on the Air Force,s why such a decision was in the to deny plaintiffls wittrarawai iequest without stating the reasons ..best interests,, of the err l'orce. to ,ft" contrary, the-fact that Plaintiff was rehired as a civilian in that Plaintiff s separation was not in the the same position or ,"rponriiiliiy afpears to indicate "best interests" of the Air Force.
E' The Motions For Judgment On The Administrative Record'
The Govemment argues, in the altemative' that it is entitled to judgment on the requests are left to the discretion of Administrative Record. Gov,"t Mot. at 21. Granrs of hardship the Air Force and there was "nottritrg 'iilegal' about the Air Force offering [Plaintiffl two optlons: reassign or separate.,, c*';^M;-? 21] In addition, plaintiff had no "right" to withdraw her ,,Air Force is the ultimate decision maker of whether approval is proper ,"p*o:tion ."q""st and the basedonmanningandtheo.,reruttb"stittterestsof[the]AirForce"Gov'tMot'at22'Moreover' Mot' plaintiff did not co-pry *it, ei. r"."" regulations'in making her withdraw{ *q.":.r1. Gov',t at22. Thefirst withdrawal t"q"*, *". ,iot made "through Ler local chain" and did not "explain her reasons for withdrawal.i 'Gov't Mot. at22 (citing AFI 36-3207, $$ 2'14'1 2, 2'14'2) The .""ond..qu.,t*asnotlessthanthirtydaysfromtheapprovedSeparationdate-anddidnot..raise Gov't Mot. at ;;;iy have justified processing the withdrawal[.]" r1*arrrip which would . ""v 22. In addition, there is ; the Administrative Record "to suggest that the Air Force's ""rfi; actionswerewithoutarationalb'asisornotinaccordancewiththelaw'''Gov,tMot.at22.
application by giving - entitlementsH" or (2) "a pending separation goods, or receive advance travel reasons for the withdrawal." ipl zs-zzol ,'5 z)q.t.l-2 (July 9, 2004)- But, AII 36-3207 $ ' that states: "officers may not submit withdrawal requests within 2.14.1 also contarns an excepdon 2.14.1 (July 9, i0 days of their approved ObS untess the request is for hardship." AFI36-3207, $ 2004). 12 2. Plaintiff s ResPonse.
plaintiff responds that the Air Force did not "provide a reason why the [P]laintiffs of.its personnel withdrawal of separatron would adversely affect the agency's administration at 26 (citing AFI 36-307' $ requirements" in accordance *i*t et Foice regulations' Pl' R"tp' Plaintiff s-withdr.awal request i.i+,.+1. m"Air Force acted arbitrary and capriciously^in denying ,.demonstrated that it desperately needed 11 Plaintiff, needed her at MacDill, because it and .and an Active Duty oii"..a n". a [civilian] posiiion fiiling the same position she occupied as physician[.]" Pl. ResP. at27J8-
3. The Government's RePIY'
TheGovemmentrepliesthattheAirForcedecisiontograntPlaintiffsSeparationrequest oiihe withdrawal requests,,was rational and in accordance with Air and refusal to accept eitrrer Forceregulations.,,Gov,tReplyat8.TheAirForcedeterminedthatPlaintif|sdesiretorematn as a civilian "demonstrates that the Air at MacDill was contrary to itJ rieeds and hiring her back as a wrongdoer'" Gov't Reply at Force was not retaliating uguinJ P6trtiff] or tlating [Plaintiffl properly to submit a 9. In addition, plaintiff required th" endo.se-ent oiher Wing Commander withdrawal request. Gov't n"piy 10. The Wing Commander was not required to provide a "t see AFI 36-3207 S2'I4'4' reason for the decision not to endorse Plaintiff s request.
4. The Courtts Resolution'
TheTuckerActprovidesthat..[i]nanycasewithinitsjurisdiction,thecourtshallhavethe executive body or official with such powe. toiemand uppropriut" -un"t' to iny aiministrative.or RCFC 5.2'2(a) (The direction as it may a.". p.of .. u"J iust.'; z8 U S C $ l49l(a)(2); see .also .,may order the remand of appropriate matters to an administrative or executive body or court offrcial.").
Inthiscase,PlaintiffdidnotfirstsubmitaclaimofinvoluntarydischargetotheAirForce Plaintiff s Board for Correction ofMilitlf Re-.at gefeCUR'). Therefore, the court remandsForce invoiuntary discharge lo ttre ersbl\an to determine whether: (1) the Air either "tairn plaintiff by informing her that either she was required to accept .ir."pr"r.*"a or ieceived reassignment or separate; (2) plaintiff r;ued on a misrepresentation or deceptive statement by the officer to.act on the Air Force to her detriment; -a i:l the failure either of the lead assignments Novemberl6,20l6separation,.q,,"sto'tt'eWingCommander'sexerciseofdiscretioninrefusing 36-2110, $ 2.30'1 1 (Sept' 22' to endorse the February tz,'iOti r"qr"r, *u, u-uiolutiott ofAFI position of 200g), particularly since .q,i. io."" rehired plaintiff as a civilian in the same tt. t"rfontiUifity. See Administrative Procedure Act, 5 U S C $ 706(2XA)'
Iv. CONCLUSION.
Forthesereasons,theGovernment'sJune2l,20l8MotionToDismissisgrantedinpart is and denied in part.All other motions are denied as moot. The involuntary discharge claim remandedforconsiderationtotheAFBCMR.SeeRFCF52.2'TheGovernmentisdirectedto report to the court nin.iy days on the sttu:- 9I the remand proceedings -- See RCFC "lr"ry lzi.ziuxrl
The Clerk of Court is directed to enter judgment accordingly.
IT IS SO OR-DERED.
SUSAN G. BRADEN
t4