Case: 22-1082 Document: 28 Page: 1 Filed: 04/06/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KEVIN LLEWELLYN MCGHEE,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-1082
______________________
Appeal from the United States Court of Federal Claims
in No. 1:19-cv-00629-MHS, Judge Matthew H. Solomson.
______________________
Decided: April 6, 2022
______________________
KEVIN LLEWELLYN MCGHEE, Florissant, MO, pro se.
CATHARINE PARNELL, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
BRIAN M. BOYNTON, STEVEN JOHN GILLINGHAM, PATRICIA
M. MCCARTHY.
______________________
Before MOORE, Chief Judge, CLEVENGER and HUGHES,
Circuit Judges.
Case: 22-1082 Document: 28 Page: 2 Filed: 04/06/2022
2 MCGHEE v. US
PER CURIAM.
Kevin Llewellyn McGhee appeals the United States
Court of Federal Claims’ dismissal of his complaint for lack
of subject matter jurisdiction. See McGhee v. United States,
155 Fed. Cl. 380 (2021). Because Mr. McGhee’s claims are
outside the Court of Federal Claims’ jurisdiction, we af-
firm.
I
Before his medical retirement on January 20, 2015, Mr.
McGhee served as a United States Army Lieutenant Colo-
nel and a dual-status military technician and chaplain
with the Missouri Army National Guard (“MOANG”).
McGhee, 155 Fed. Cl. at 382–83. On April 19, 2019, he filed
this suit in the Court of Federal Claims, alleging that
MOANG failed to pay him incapacitation pay pursuant to
37 U.S.C. § 204. Id. at 383. Mr. McGhee later expanded his
claims to include additional requests for monetary relief.
Id. at 384. In total, Mr. McGhee claims he is entitled to:
(1) additional incapacitation pay for the period of May 4,
2013 to November 8, 2013 pursuant to the Military Pay
Act, 37 U.S.C. § 204; 1 (2) compensation for discrimination
pursuant to the Uniformed Services Employment and
1 Mr. McGhee originally sought incapacitation pay
for the period of May 4, 2013 to January 20, 2015. McGhee,
155 Fed. Cl. at 383. Because this claim was already pend-
ing before the Army Board for Correction of Military Rec-
ords (“ABCMR”), the Court of Federal Claims granted the
government’s unopposed request for a remand. Id. The
ABCMR granted Mr. McGhee partial relief, concluding
that he is entitled to incapacitation pay from November 9,
2013—the earliest date on which he applied for incapacita-
tion pay—to January 20, 2015. Id. Mr. McGhee maintains
he is entitled to additional incapacitation pay for the period
of May 4, 2013 to November 8, 2013. Id.
Case: 22-1082 Document: 28 Page: 3 Filed: 04/06/2022
MCGHEE v. US 3
Reemployment Rights Act (“USERRA”), 38 U.S.C. §§ 4301–
4335; (3) disability retirement pay annuity under the Fed-
eral Employees’ Retirement System (“FERS”), 5 U.S.C.
§ 8451; and (4) compensation for federal and military whis-
tleblower retaliation pursuant to provisions of the Whistle-
blower Protection Act (“WPA”), 5 U.S.C. § 2302, and the
Military Whistleblower Protection Act (“MWPA”), 10
U.S.C. § 1034. McGhee, 155 Fed. Cl. at 384.
The government moved to dismiss these claims for lack
of subject matter jurisdiction and the Court of Federal
Claims granted the motion. Id. at 387. Mr. McGhee ap-
pealed. We have jurisdiction under 28 U.S.C. § 1295(a)(3).
II
We review de novo the Court of Federal Claims’ deci-
sion to dismiss a case for lack of subject matter jurisdiction.
Brandt v. United States, 710 F.3d 1369, 1373 (Fed. Cir.
2013). As the plaintiff, Mr. McGhee bears the burden of es-
tablishing the court’s jurisdiction by a preponderance of the
evidence. Id. While we hold pro se plaintiffs like Mr.
McGhee to “less stringent” pleading standards compared to
parties represented by counsel, Haines v. Kerner, 404 U.S.
519, 520 (1972), this leniency does not relieve them of ju-
risdictional requirements, Kelley v. Sec’y, U.S. Dep’t of
Lab., 812 F.2d 1378, 1380 (Fed. Cir. 1987).
The Tucker Act defines the Court of Federal Claims’
jurisdiction and “gives the court authority to render judg-
ment on certain monetary claims against the United
States.” RadioShack Corp. v. United States, 566 F.3d 1358,
1360 (Fed. Cir. 2009) (citing 28 U.S.C. § 1491(a)(1)). The
Tucker Act, however, “does not create a substantive cause
of action.” Fisher v. United States, 402 F.3d 1167, 1172
(Fed. Cir. 2005). Instead, “a plaintiff must identify a sepa-
rate source of substantive law that creates the right to
money damages.” Id. “[T]he absence of a money-mandating
source [is] fatal to the court’s jurisdiction under the Tucker
Act.” Id. at 1173.
Case: 22-1082 Document: 28 Page: 4 Filed: 04/06/2022
4 MCGHEE v. US
III
Although Mr. McGhee contends the Court of Federal
Claims “had ‘Jurisdiction’” over his claims, his informal
brief cites only the Tucker Act for support and does not oth-
erwise explain why jurisdiction is proper. For the reasons
discussed below, the Court of Federal Claims correctly con-
cluded it lacked jurisdiction over Mr. McGhee’s claims. 2
The Court of Federal Claims does not have jurisdiction
over Mr. McGhee’s claim for additional incapacitation pay.
We have previously held that the governing statute is not
money-mandating in such a case “because § 204 incapaci-
tation pay beyond the initial six-month period is wholly
within the [government’s] discretion under § 204(i)(2).”
Barnick v. United States, 591 F.3d 1372, 1378 (Fed. Cir.
2010). Here, where Mr. McGhee has already been granted
incapacitation pay for a period of 14 months and 11 days,
“[a]ny additional incapacitation pay under 37 U.S.C.
§ 204(g) is wholly at the discretion of the [government], and
courts lack jurisdiction over such a claim.” Id.
Moreover, under the governing statutes, jurisdiction
for both USERRA and FERS claims lies beyond the Court
of Federal Claims. The proper jurisdiction for a USERRA
claim depends on the type of employer—State, federal, or
private. See 38 U.S.C. §§ 4323(b), 4324(c)(1). Mr. McGhee,
as a dual-status technician with MOANG pursuant to 32
2 On appeal, Mr. McGhee alleges for the first time
that the incapacitation pay he received as a result of the
ABCMR’s decision was improperly taxed in violation of 26
U.S.C. § 104. Appellant Informal Br. at 13–15. Because he
never pleaded any claim arising from this alleged violation,
we do not reach this issue. See Mass. Mut. Life Ins. Co. v.
United States, 782 F.3d 1354, 1369 (Fed. Cir. 2015) (“As a
general principle, appellate courts do not consider issues
that were not clearly raised in the proceeding below.”).
Case: 22-1082 Document: 28 Page: 5 Filed: 04/06/2022
MCGHEE v. US 5
U.S.C. § 709, is considered a State employee for USERRA
purposes. 38 U.S.C. § 4303(4)(B); see also 20 C.F.R.
§ 1002.306. As such, jurisdiction over Mr. McGhee’s
USERRA claim lies with any “State court of competent ju-
risdiction in accordance with the laws of the State,” 38
U.S.C. § 4323(b)(2), i.e., Missouri state court. With respect
to his FERS claim, “[b]y statute, the authority to . . . adju-
dicate all claims arising under that retirement system
rests with [the Office of Personnel Management].”
Stekelman v. United States, 752 F. App’x 1008, 1010 (Fed.
Cir. 2018) (citing 5 U.S.C. § 8461(c)).
Finally, we have previously held that neither the WPA
nor the MWPA is a money-mandating statute. Turner v.
United States, 129 F.3d 134 (Fed. Cir. 1997) (“[B]ecause the
WPA does not provide for money damages, the Court of
Federal Claims does not have jurisdiction to review these
claims.”); Nicely v. United States, 23 F.4th 1364, 1367 (Fed.
Cir. 2022) (“Reviewing this statutory scheme [set forth by
the MWPA], we have held that the MWPA is not a money-
mandating statute and that the Claims Court does not pos-
sess jurisdiction to entertain MWPA claims.” (citing
cases)). The absence of a money-mandating source is fatal
to the Court of Federal Claims’ jurisdiction over Mr.
McGhee’s whistleblower claim. Fisher, 402 F.3d at 1173.
CONCLUSION
Because Mr. McGhee’s claims are outside the jurisdic-
tion of the Court of Federal Claims, we affirm.
AFFIRMED
COSTS
No costs.