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'
1. The Government's Argument'
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