                                   flRlffiiiriit
           l|n tbt @nite! $rtutts @ourt                   of   felrrul     @lsinrg
                                           Pro Se
                                                                                     FILED
                                        No.15-1382C
                           (Filed: May 9,2016 | Not For   Publication)              MAY - I 2016
                                                                                   U.S. COURT OF
                                                                                  FEDEML CLAIMS
    IRA LEE JACKSON.
                                                  )   Keywords: Pro Se; Subject Matter
                       Plaintiff,                 )   Jurisdiction; Motion to Dismiss; Tort;
                                                  ;   Military Retirement; l0 U.S.C. $ 1201.
         v.)
                                                  )
    THE UNITED STATES OF        AMERICA,          )
                                                  )
                       Defendant.                 )
                                                  )
                                                  )

Ira Lee Jackson, Newburgh, NY, Plaintiff, pro   se.

Kara M. llestercamp, Trial Attorney, with whom werc, Benjamin C. Mizer, principal Deputy
Assistant Attomey General, Robert E. Kirschman,./r., Director, Steven J. Giltingham, Assistant
Director, civil Division, united states Department of Justice, washington, DC, for Defendant.
Major Angela D. Swilley, Litigation Attomey, U.S. Army Legal Services Agency, Fort Belvior,
VA, Of Counsel.

                                   OPINION AND ORDERI

        The pro se plaintiff in this action, Ira Lee Jackson, enlisted in the New york Army
National Guard on April 12, 1984, for a period of six years. Def.'s Mot. to Dismiss and
Appendix (Def.'s Mot.) at Al-A2, ECF No. 8. on June 4, 1984, Mr. Jackson reported for active
duty training. Id. at 43. He was then released from duty on September 15, 1984, pursuant to
Army Regulation 635-200, fl l6-9. Id. Thereafter, on December 1, 1989, Mr. Jackson was
discharged from the New York National Guard and Army Reserve pursuant to National Guard
Regulation 600-200 and Section 94, Military Law, State of New York, with an "Under
Honorable Conditions" characterization ofservice. Id. at Al-A2.2


 ' The facts set forth in this opinion are drawn from the allegations in Mr. Jackson's complaint,
which the court accepts as true for purposes of ruling on the govemment's motion to dismiss,
from the documents appended to his complaint, which the Court assumes are authentic, and from
the appendix to the government's motion to dismiss.

2
 Section 94 provides that "when an enlisted person ofthe organized militia absents himself
without leave and there is reason to believe that he does not intend to retum, he may be dropped
        Mr. Jackson filed the present action on November 16, 2015. Although the allegations in
his complaint are difficult to follow, it appears that he is challenging the lawfulness ofhis 1984
discharge on a variety of grounds, including discrimination and retaliation. It also appears that he
is requesting a military disability retirement and seeking a correction of his military records. Mr.
Jackson's complaint also includes a claim for punitive damages based on defamation of
character, libel, and slander. In addition, he alleges breach of contract by the Army as well as
unspecified violations of 42 U.S.C. g 1983. See Compl., ECF No. 1.

       The govemment has filed a motion to dismiss Mr. Jackson's complaint pursuant to Rule
12(b)(1) ofthe Rules ofthe Court ofFederal Claims (RCFC). For the reasons set forth below, the
government's motion to dismiss is GRANTED.3

                                            DISCUSSION

        In ruling on a motion to dismiss, the Court assumes that all factual allegations are true
and construes all reasonabls inferences in favor ofthe plaintiff. Scheuer v. Rhodes,416 u.s.
232,236 (1974) (abrqgated !p other erounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)). In
considering a motion to dismiss for lack ofsubject matter jurisdiction, the court may "inquire
into jurisdictional facts" to determine whether it has jurisdiction. Rocovich v. United States, 933
 F.2d991,993 (Fed. cir. 1991). The plaintiffbears the burden of establishing subject matter
jurisdiction by a preponderance of the evidence. Brandt v. United States, 7l 0 F.3d 1369, 1373
(Fed. Cir.20l3).

       Pro se plaintiffs are held to "less stringent standards than formal pleadings drafted by
lawyers." Haines v. Kerner, 404 u.s. 519,520 (1972). Nonetheless, even pro se plaintiffs must
persuade the court that jurisdictional requirements have been met. Kelley v. Sec'y. U.s. Dep't of
Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987).

       Pursuant to the Tucker Act, the United States Court of Federal Claims has jurisdictron to
"render judgment upon any claim against the United States founded either upon the Constitution,
or any Act of congress or any regulation ofan executive department, or upon any express or
implied contract with the united states, or for liquidated or unliquidated damages in iases not
sounding in tort." 28 u.s.c. $ 1491(a). The Tucker Act thus waives the sovereign immunity of
the united states to allow a suit for money damages. United states v. Mitchell, 463 u.s. 206,
212 (1983). However, the Tucker Act does not confer any substantive rights on a plaintiff.
united states v. Testan, 424 u.s.392,399 (1976). Therefore, a plaintiff cannot invoke the


from the rolls, under such regulations   as may be prescribed pursuant   to this chapter.,'N.y. Mil.
L. $ 94.
3
  lvlr. Jackson filed a request to proceed in forma pauperis. To proceed in forma pauperis, a
plaintiff must submit an affidavit that includes a list ofall ofhis assets, a declaration that he rs
unable to pay the fees or give the security for an attomey, and a statement ofthe nature ofhis
action and his beliefthat he is entitled to judgment. 28 u.s.c. g 1915(a)(1). Here, plaintiff
satisfied these requirements, and the court therefore GRANTS his application to proceed in
forma pauperis for the limited purpose of dismissing the complaint.



                                                   2
court's Tucker Act jurisdiction unless he or she can identifu an independent source ofa
substantive right to money damages from the united states arising out ofa contract, statute,
regulation, or constitutional provision. Jan's Helicopter Serv.. Inc. v. Fed. Aviation Admin., 525
F.3d 1299, 1306 (Fed. Cir. 2008); see also Golden Pacific Bancom v. United States, l5 F.3d
1066, 1076 (Fed. Cir. 1994).

        Mr. Jackson's claims for punitive damages based on defamation of character, libel, and
slander are beyond this Court's jurisdiction because they sound in tort, Rick's Mushroom Service
v. United States, 521 F.3d 1338, 1343 (Fed. Cir.2008), and because this Court lacks jurisdiction
to award punitive damages, Garner v. United States,230 Ct. CI.941,943 (19g2). Similarly, this
Court lacks jurisdiction to hear claims arising under 42 U.S.C. $ 1983 as jurisdiction over claims
under the civil rights acts is vested exclusively in the federal district courts. See Gibson v. United
states, 121 Fed. CI.215,217 (2015).

        Further, to the extent that Mr. Jackson alleges a breach of contract in connection with his
discharge, it is well settled that "statutes are the exclusive source of law goveming the
compensation rights of members of the military." schism v. United States, 316 F.3d 1259,1272
(Fed. Cir. 2002) (en banc); accord Bell v. United States, 366 U.S. 393, 401 ( 1961) (,A soldier's
entitlement to pay is dependent upon statutory right."). Thus, ,,common-law rules goveming
private contracts have no place in the area of military pay." Bell, 366 u.s. at 401. Therefore, this
Court lacks jurisdiction over Mr. Jackson's breach ofcontract claims.

       On the other hand, the Military Pay Act, 37 U.S.C. g 204, .,provides for suit in [the Court
of Federal claims] when the military, in violation of the constitution, a statute, or a regulation,
has denied military pay." Antonellis v. United States ,723 F ,3d 1328, 133 1 (Fed. Cir. 2013)
(quoting Dysart v. United states, 369 F.3d 1303, 1315 (Fed. cir. 2004)). But the courr's Tucker
Act jurisdiction to hear a claim by Mr. Jackson under the Military pay Act is subject to the six
year statute of limitations set forth in 28 U.S.c. g 2501. Section 2501 provides that "[e]very
claim of which the United States Court ofFederal Claims has jurisdiction shall be baned unless
the petition thereon is filed within six years after such claim first accrues.,,

        A claim for unlawful discharge from the armed services first accrues when the member is
discharged from active duty status. Martinez v. united states,333 F.3d 1295,1303 (Fed. cir.
2003) (en banc); id. at 1310. Here, Mr. Jackson's discharge from the Army occurred in 19g4.
This court, accordingly, lacks jurisdiction to consider his claim for back pay based on unlauful
discharge.

        The Court also lacks jurisdiction to correct Mr. Jackson's military records. The Court of
Federal Claims may order the correction of military records if it is "incident ofand collateral to"
a money judgment. 28 U.S.C. g la91(a)(2). But this Court cannot,,grant affirmative non-
monetary relief unless it is tied and subordinate to a money judgment." James v. caldera, 159
F.3d 573, 5 80 (Fed. cir. 1998). Here, because the court lacks jwisdiction over Mr. Jackson's
claim for back pay resulting from an unlawful discharge, it cannot independently order the
correction of his military records.

        Finally, to the extent that Mr. Jackson's complaint could be construed as including a
claim for disability retirement pay under 10 u.s.c. $ 1201, such claims "do not accrue until the
approPriate board either finally denies such a claim or refuses to hear it." Real v. United States,
906 F .2d 1557, I 560 (Fed. Cir. 1990); see also Chambers v. United States , 417 F .3d 1218, l,ZZ7
(Fed. Cir. 2005). Mr. Jackson has not exhausted his administrative remedies with regard to a
claim for disability retirement. Therefore, this Court lacks jurisdiction to hear it.

                                          CONCLUSION

       For the reasons stated above, the Court GRANTS the govemment's motion to dismiss,
and DISMISSES PlaintifPs complaint for lack ofjurisdiction, without prejudice. The clerk is
directed to enter judgment accordingly.




       IT IS SO ORDERED.


                                                         t- t4l-,
                                                      ELAINED. KAPLAN
                                                      Judge




                                                  4
