                         ORIGINAL
           JJn tbe Wniteb ~tates QCourt of                      jfeberal (!Claims
                                                No. 18-721C
                                          Filed November 2, 2018
                                         NOT FOR PUBLICATION

                                                   )
 DANNY CAESAR,                                     )
                                                   )
                        Plaintiff,                 )    Prose; RCFC 12(b)(l); Subject-Matter
                                                   )    Jurisdiction; RCFC 12(b)(6); Failure to
 V.                                                )    State a Claim; In Forma Pauperis; Res
                                                   )    Judicata; Breach of Contract; Tort.
 THE UNITED STATES,                                )
                                                   )
                        Defendant.                 )
- -- -- - - - --                     -    -   -   -)
       Danny Caesar, Soledad, CA, plaintiff prose.

      David R. Pehlke, Trial Attorney, Deborah A. Bynum, Assistant Director, Robert E.
Kirschman, Jr., Director, Chad A. Readier, Acting Assistant Attorney General, Commercial
Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for
defendant.

                          MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I.     INTRODUCTION

       Plaintiff pro se, Danny Caesar, brings this action against the United States seeking
compensation for alleged lost employment opportunities, incarceration, pain and suffering, and
the breach of his enlistment contract, resulting from a frostbite injury to the feet that plaintiff
sustained while serving in the United States Army ( the "Anny"). See generally Compl. As
relief, plaintiff seeks to recover$ 30 million in monetary damages from the government. Id. at 3.
The government has moved to dismiss this matter for lack of subject-matter jurisdiction and for
failure to state a claim, pursuant to Rules 12(b)(l) and (b)(6) of the Rules of the United States
Comt of Federal Claims ("RCFC"). See generally Def. Mot. Plaintiff has also moved to
proceed in this matter in forma pauperis. See generally Pl. Mot. to Proceed In Forma Pauperis.
For the reasons discussed below, the Comt: (1) GRANTS the government's motion to dismiss;




                               7017 1450 0000 1346 2342
(2) GRANTS plaintiffs motion to proceed informa pauperis; and (3) DISMISSES the
complaint.

II.    FACTUAL AND PROCEDURAL BACKGROUND 1

       A.      Factual Background

       Plaintiff prose, Danny Caesar, is currently incarcerated in the Salinas Valley State Prison
located in Soledad, California. See Comp!. at 2. Plaintiff filed the complaint and a motion to
proceed informa pauperis in this matter on May 21, 2018. See generally Comp!.; Pl. Mot. to
Proceed In Forma Pauperis.

               I.      Plaintiff's Claims

       Plaintiffs handwritten complaint is difficult to follow. But, plaintiff appears to allege
that the Army breached an enlistment contract that plaintiff entered into when he "voluntarily
enlisted into the United States Army," by failing to compensate him after he suffered frostbite in
the feet while serving in the military. Comp!. at 2. Specifically, plaintiff alleges that he "had
great concern of the prognosis of [his] feet condition" after suffering from frostbite, but, "the
Army told [him] there was nothing to worry [about]." Id. Plaintiff also maintains that once he
re-entered civilian life, he "almost immediately started experiencing dreadful repercussions,"
including feeling "like swords were being driven up through the bottom of [his] feet, from
walking all day long on the job at the Boeing Company on concrete floors" and experiencing
nightmares. Id.
        In addition, plaintiff maintains that he has been unable to sustain employment, leading to
his homelessness and incarceration, as "a direct result of the Army's misinfo1mation." Id. As
relief, plaintiff seeks to recover $30 million in monetary damages from the United States. Id. at
3.
        In his response and opposition to the government's motion to dismiss, plaintiff also
appears to raise an additional claim for back pay related to an unidentified decision by the Army
Board for the Correction of Military Records (the "ABCMR"). See generally Pl. Resp. In this


1 The facts recited in this Memorandum Opinion and Order are taken from the complaint ("Comp!."), the

government's motion to dismiss ("Def. Mot.") and the exhibits attached thereto ("Def. Ex."); plaintiffs
response thereto ("Pl. Resp."); and the government's reply in suppott of its motion to dismiss ("Def.
Reply"). Unless otherwise noted herein, the facts recited are undisputed ..

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regard, plaintiff alleges that this claim "is premised upon [his] Constitutional Right to Due
Process of law: in this case, the decision handed down by the Army Board for the Correction of
Military Records, which claim far exceeds back pay of $10,000.00." Id. at 1.

                2.      Plaintiff's Prior District Court Litigation

        Prior to commencing this action, plaintiff brought a civil action against the United States
in the United States District Comt for the Eastern District of California alleging that the Army
and the ABCMR violated his due process and equal protection rights under the Fomteenth
Amendment to the United States Constitution and violated his enlistment contract. See Caesar v.
United States Army, No. 1:16-cv-00201-LJO-BAM, 2016 WL 8997392, at *1 (E.D. Cal. July 28,
2016). In that case, plaintiff sought monetary relief for alleged due process and equal protection
violations related to his frostbite injury and for a violation of his enlistment contract. Id.

        On July 28, 2016, the district court dismissed plaintiffs case upon the ground that
plaintiff failed to state a claim upon which relief can be granted. Id. at *2. Specifically, the
district court held that plaintiffs tmt and constitutional law claims related to his frostbite injury
were batTed because members of the armed services cannot sue the government for injuries that
arise out of, or in the course of, activity incident to service. Id. at * 1. The district court also
held that, to the extent that plaintiff attempted to raise a breach of contract claim based upon his
enlistment contract, money damages were not an available remedy. Id. at *2. Plaintiff appealed
the district court's dismissal decision, and the United States Court of Appeals for the Ninth
Circuit affirmed the decision of the district comt on March 20, 2017. See Caesar v. United
States Army, 683 F. App'x 635,635 (9th Cir. 2017). 2




2 The Ninth Circuit held that the district court properly dismissed plaintiffs federal claims
because members of the armed forces may not file suit against the government for injuries
incurred during military service and the district court properly dismissed plaintiffs breach of
contract claim because money damages are not an available remedy for the government's breach
of an enlistment contract. Caesar v. United States Army, 683 F. App'x 635, 635 (9th Cir. 2017).
Plaintiff appears to allege in the complaint that the district court erred in dismissing his case
because the district court should have transfe1Ted the case to the United States Court of Federal
Claims pursuant to Burkins v. United States, 112 F.3d. 444 (10th Cir. 1997). Comp!. at 1.


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       B.      Procedural History

       Plaintiff commenced this action on May 21, 2018. See generally Comp!. On May 21,
2018, plaintiff filed a motion to proceed in this matter in forma pauperis. See generally Pl. Mot.
to Proceed In Forma Pauperis.

       On July 20, 2018, the government filed a motion to dismiss this matter, pursuant to
RCFC 12(b)(l) and (b)(6). See generally Def. Mot. On August 16, 2018, plaintiff filed a
response and opposition to the government's motion to dismiss. See generally Pl. Resp. On
August 30, 2018, the government filed a reply in support of its motion to dismiss. See generally
Def. Reply.

       These matters having been fully briefed, the Court resolves the pending motions.

III.   LEGAL ST AND ARDS

       A.      Pro Se Litigants

       Plaintiff is proceeding in this matter pro se, without the benefit of counsel. And so, the
Court applies the pleading requirements leniently. Beriontv. GTE Labs., Inc., 535 F. App'x 919,
925-26 n.2 (Fed. Cir. 2013) (citing McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed.
Cir. 2007)). When determining whether a complaint filed by a prose plaintiff is sufficient to
survive a motion to dismiss, this Court affords more leeway under the rules to pro se plaintiffs
than plaintiffs who are represented by counsel. See Haines v. Kerner, 404 U.S. 519,520, 92 S.
Ct. 594 (1972) (holding that pro se complaints, "however inartfully pleaded," are held to "less
stringent standards than formal pleadings drafted by lawyers"); Matthews v. United States, 750
F.3d 1320, 1322 (Fed. Cir. 2014). But, there "is no duty on the pa.rt of the trial court to create a
claim which [the plaintiff] has not spelled out in his pleading." Lengen v. United States, 100
Fed. Cl. 317,328 (2011) (brackets existing) (internal quotation marks omitted) (quoting Scogin
v. United States, 33 Fed. Cl. 285, 293 (1995)).

       While "a pro se plaintiff is held to a less stringent standard than that of a plaintiff
represented by an attorney ... the pro se plaintiff, nevertheless, bears the burden of establishing
the Court's jurisdiction by a preponderance of the evidence." Riles v. United States, 93 Fed. Cl.
163, 165 (2010) (citing Taylor v. United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002)). And so,
the Cami may excuse ambiguities, but not defects, in the complaint. Colbert v. United States,

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617 F. App'x 981, 983 (Fed. Cir. 2015); see also Demes v. United States, 52 Fed. Cl. 365,368
(2002) ("[T]he leniency afforded prose litigants with respect to mere formalities does not relieve
them of jurisdictional requirements.").

       B.      RCFC 12(b)(l)

        When deciding a motion to dismiss upon the ground that the Comi does not possess
subject-matter jurisdiction pursuant to RCFC 12(b)(l), this Court must assume that all
undisputed facts alleged in the complaint are true and must draw all reasonable inferences in the
non-movant's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also RCFC 12(b)(l). But,
plaintiff bears the burden of establishing subject-matter jurisdiction, and he must do so by a
preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748
(Fed. Cir. 1988). Should the Court determine that "it lacks jurisdiction over the subject matter, it
must dismiss the claim." Matthews v. United States, 72 Fed. Cl. 274, 278 (2006).

        In this regard, the United States Court of Federal Claims is a court of limited jurisdiction
and "possess[es] only that power authorized by Constitution and statute .... " Kokkonen v.
Guardian Life Ins. Co. ofAm., 511 U.S. 375, 377 (1994). The Tucker Act grants the Court
jurisdiction over:

        [A]ny claim against the United States founded either upon the Constitution, or any
        Act of Congress or any regulation of an executive depmiment, or upon any express
        or implied contract with the United States, or for liquidated or unliquidated
        damages in cases not sounding in tort.

28 U.S.C. § 149l(a)(l). The Tucker Act is, however, "a jurisdictional statute; it does not create
any substantive right enforceable against the United States for money damages .... [T]he Act
merely confers jurisdiction upon [the United States Comi of Federal Claims] whenever the
substantive right exists." United States v. Testan, 424 U.S. 392,398 (1976) (alterations original).
And so, to pursue a substantive right against the United States under the Tucker Act, a plaintiff
must identify and plead a money-mandating constitutional provision, statute, or regulation; an
express or implied contract with the United States; or an illegal exaction of money by the United
States. Cabral v. United States, 317 F. App'x 979, 981 (Fed. Cir. 2008) (citing Fisher v. United
States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)); see also Martinez v. United States, 333 F.3d 1295,
1302 (Fed. Cir. 2003). "[A] statute or regulation is money-mandating for jurisdictional purposes


                                                                                                       5
if it 'can fairly be interpreted as mandating compensation for damages sustained as a result of the
breach of the duties [it] impose[ s]. "' Fisher, 402 F.3d at 1173 (quoting United States v. Mitchell,
463 U.S. 206,217 (1983)).

        Specifically relevant to this matter, the Federal Circuit has recognized that "[g]overning
precedents have long established a broad general rule that rights to military pay benefits are
established only by statutes and regulations, not by enlistment contracts enforceable through
damages remedies." Prestidge v. United States, 611 F. App'x 979,982 (Fed. Cir. 2015). The
Federal Circuit has also held that military health care benefits as a form of compensation are
exclusively a creature of statute, not contract. Schism v. United States, 316 F.3d 1259, 1268-76
(Fed. Cir. 2002) (en bane).

        It is also well-established that the Tucker Act explicitly places tort claims beyond the
jurisdiction of this Court. 28 U.S.C. § 1491(a) ("The United States Court of Federal Claims shall
have jurisdiction to render judgment upon any claim against the United States ... not sounding
in tort."); Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008)
("The plain language of the Tucker Act excludes from the Comi of Federal Claims jurisdiction
[over] claims sounding in to1i."); Hernandez v. United States, 96 Fed. Cl. 195,204 (2010)
("[T]he Tucker Act expressly excludes tort claims ... from the jurisdiction of the United States
Court of Federal Claims."). In addition, this Court has long held that simply citing to a provision
of the United States Constitution is not enough to establish this Court's jurisdiction over claims
based upon that provision. See Calhoun v. United States, 32 Fed. Cl. 400, 405 (I 994), ajf'd, 61
F.3d 918 (Fed. Cir. 1995) (stating "not every claim involving, or invoking, the Constitution
necessarily confers jurisdiction on this court"); see also Livingston v. Derwinski, 959 F.2d 224,
225 (Fed. Cir. 1992) ("[T]he mere recitation of a basis for jurisdiction by either party or a comi,
is not controlling.... ").

        C.      RCFC 12(b)(6)

        When deciding a motion to dismiss based upon failure to state a claim upon which relief
can be granted, pursuant to RCFC l 2(b )(6), this Comi must also assume that all undisputed facts
alleged in the complaint are true and must draw all reasonable inferences in the non-movant's
favor. See Redondo v. United States, 542 F. App'x 908,910 (Fed. Cir. 2013). And so, to survive
a motion to dismiss under RCFC 12(b)(6), a complaint must contain facts sufficient to "state a

                                                                                                      6
claim to relief that is plausible on its face." Bell At/. Corp. v. Twombly, 550 U.S. 544, 570
(2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
       When the complaint fails to "state a claim to relief that is plausible on its face," the Court
must dismiss the complaint. Iqbal, 556 U.S. at 678 (citation omitted). On the other hand,
"[w]hen there are well-pleaded factual allegations, a court should assume their veracity," and
determine whether it is plausible, based upon these facts, to find against the defendant. Id at
663-64, 678 ("A claim has facial plausibility when the pleaded factual content allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.").

       D.      Res ,Judicata And Claim Preclusion

       Lastly, the Federal Circuit has recognized that "[t]he doctrine of res judicata involves the
related concepts of claim preclusion and issue preclusion." Phillips/May Corp. v. United States,
524 F.3d 1264, 1267 (Fed. Cir. 2008). Claim preclusion prevents a party from relitigating the
same claims that were or could have been raised in a prior action and serves the public interest
by reducing the number oflawsuits, conserving judicial resources, and preventing inconsistent
decisions. Goad v. United States, 46 Fed. Cl. 395,397 (2000) (citations omitted). Specifically,
claim preclusion bars a claim where: "(l) the parties are identical or in privity; (2) the first suit
proceeded to a final judgment on the merits; and (3) the second claim is based on the same set of
transactional facts as the first." Cunningham v. United States, 748 F.3d 1172, 1179 (Fed. Cir.
2014) (internal quotation marks omitted) (quoting Ammex, Inc. v. United States, 334 F.3d 1052,
1055 (Fed. Cir. 2003)); see also Federated Dep 't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)
(citations omitted) ("A final judgment on the merits of an action precludes the pmiies or their
privies from relitigating issues that were or could have been raised in that action.").

        This Comi has recognized that dismissals for failure to state a claim upon which relief
can be granted are judgments on the merits, and, thus, entitled to the res judicata effect. Goad,
46 Fed. Cl. at 397 (citations omitted); see also Federated Dep 't Stores, Inc., 452 U.S. at 399, n.3
("The dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a
'judgment on the merits."'). But, "[ d]ismissals for lack of jurisdiction do not reach the merits of
a claim and therefore are [typically] without prejudice to a plaintiff filing a new suit in a comi
with proper jurisdiction to address the merits." Goad, 46 Fed. Cl. at 398 (citation omitted); see
also Richmond, Fredericksburg and Potomac R.R. Co. v. United States, 27 Fed. Cl. 275, 286


                                                                                                        7
(1992) (citation omitted) ("A dismissal for lack of subject matter jurisdiction, however, typically
signifies a dismissal without prejudice"). Dismissals for lack of jurisdiction may, however, be
given res judicata effect as to the jurisdictional issue. Goad, 46 Fed. Cl. at 398 (citations
omitted); see also Watson v. United States, 349 F. App'x 542, 544 (Fed. Cir. 2009) (citations
omitted) ("A dismissal for lack of jurisdiction triggers the application of the doctrine of res
judicata as to the jurisdictional issue.").

 IV.    LEGAL ANALYSIS

        The government has moved to dismiss this matter for lack of subject-matter jurisdiction
upon the grounds that: (1) plaintiffs claims are barred by the doctrine ofresjudicata; (2) the
Court cannot consider plaintiffs tort claim; and (3) plaintiff cannot receive money damages for
the alleged breach of his enlistment contract. See Def. Mot. at 3-6. In addition, the government
argues that dismissal of this case is warranted because plaintiff improperly and belatedly seeks to
assert a claim based upon an alleged decision by the ABCMR regarding his military records.
Def. Reply at I.

        Plaintiff counters that the Court possesses subject-matter jurisdiction to consider his
claims because the Army violated his constitutional rights to due process and equal protection, as
well as other civil rights protections. See Pl. Resp. at 2. Plaintiff has also moved to proceed in
this matter informa pauperis. See generally Pl. Mot. to Proceed In Forma Pauperis.

        For the reasons discussed below, the most generous reading of plaintiffs complaint
makes clear that the Court does not possess subject-matter jurisdiction to consider any of
plaintiffs' claims. Plaintiff has, however, shown that he satisfies the statutory requirements to
proceed in this matter without paying the Court's filing fee. And so, the Court: (1) GRANTS
the government's motion to dismiss; (2) GRANTS plaintiffs motion to proceed informa
pauperis; and (3) DISMISSES the complaint. RCFC 12(b)(l).

        A.      The Court Does Not Possess Jurisdiction To Consider Plaintiff's Claims

                 1.    Plaintiff's Claims Are Barred By Claim Preclusion

        As an initial matter, plaintiffs claims that the Army breached his enlistment contract and
violated his constitutional rights are barred by the doctrine of res judicata. The Federal Circuit
has recognized that "[t]he doctrine ofres judicata involves the related concepts of claim

                                                                                                      8
preclusion and issue preclusion." Phillips/May Corp. v. United States, 524 F.3d 1264, 1267
(Fed. Cir. 2008). Specifically relevant here, claim preclusion bars a second claim where: "(1) the
parties are identical or in privity; (2) the first suit proceeded to a final judgment on the merits;
and (3) the second claim is based on the same set of transactional facts as the first."
Cunningham v. United States, 748 F.3d 1172, 1179 (Fed. Cir. 2014) (internal quotation marks
omitted)(quotingAmmex, Inc. v. United States, 334 F.3d 102, 1055 (Fed.Cir.2003)). And so,
claim preclusion prevents plaintiff from relitigating the same claims that were, or could have
been, raised in a prior action. Goad v. United States, 46 Fed. Cl. 395,397 (2000) (citations
omitted).

        A careful review of plaintiffs complaint in this case shows that claim preclusion bars
plaintiff's breach of contract and constitutional law claims. First, plaintiff acknowledges that he
previously filed a civil action alleging that the Army breached his enlistment contract and
violated his constitutional equal protection and due process rights in the United States District
Court for the Eastern District of California on February 12, 2016. See Pl. Resp. at l; Caesar v.
United States Army, No. 1 :16-cv-00201-LJO-BAM, 2016 WL 8997392, at *I (E.D. Cal. July 28,
2016). It is also without dispute that the parties to the district court case, plaintiff and the United
States Government, are identical to the parties in this action. Cunningham, 748 F.3d at 1179
(explaining that claim preclusion under the doctrine of res judicata bars a claim where the parties
are identical or in privity).

        There can also be no genuine dispute that the district court entered final judgment and
resolved plaintiffs prior litigation on the merits. Id. (Explaining that claim preclusion bars a
second claim when ... the first suit proceeded to a final judgment on the merits). On July 28,
2016, the district court dismissed plaintiffs district comi litigation upon the ground that plaintiff
failed to state a claim upon which relief can be granted. Caesar, 2016 WL 8997392, at *2. In
doing so, the district court held, among other things, that: (1) plaintiffs tort and constitutional
law claims related to his frostbite injury were barred because members of the armed services
cannot sue the government for injuries that arise out of activity incident to service and (2) to the
extent that plaintiff attempted to raise a breach of contract claim based upon his enlistment
contract, money damages were not an available remedy. Id.




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        This Court has long recognized that dismissals for failure to state a claim upon which
relief can be granted are entitled to the res judicata effect because they are judgments on the
merits of a claim. Goad, 46 Fed. Cl. at 397. And so, plaintiffs district court litigation satisfies
the second criteria for applying claim preclusion because the district court reached the merits of
plaintiffs claims.

        Plaintiffs district court litigation and this action are also based upon the same set of
transactional facts. Cunningham, 748 F.3d at 1179. A reading of the complaint makes clear that
plaintiffs breach of contract and constitutional law claims in this case are based upon facts
related to his frostbite injury during military service. Comp!. at 2. Plaintiff alleged essentially
identical transactional facts related to this injury in the district court litigation. See Caesar, 2016
WL 8997392, at* I. Given this, there can be no genuine dispute that plaintiffs prior district
court litigation and this case are based upon the same set of transactional facts.

        Because plaintiffs breach of contract and constitutional law claims in this case and his
district court litigation involve identical parties, the district court litigation proceeded to a final
judgment on the merits, and the two cases are based upon the same set of transactional facts,
plaintiffs breach of contract and constitutional law claims are barred by claim preclusion. And
so, the Comi must dismiss these claims for lack of subject-matter jurisdiction. RCFC 12(b)(l).

                2.    Plaintiff Has Not Established A Contract That
                      Would Entitle Him To Recover Monetary Damages If Breached
        Dismissal of plaintiffs breach of contract claim is also warranted because plaintiff fails
to show that a breach of his enlistment contract would entitle him to recover monetary damages.
See Prestidge v. United States, 611 Fed.Appx. 979, 982 (2015)(A claim for money damages
from a breach of contract within the jurisdiction of the Tucker Act "must identify a separate
source of substantive law that creates a right to money damages."); see also 28 U.S.C. §
1491 (a)(l ). In the complaint, plaintiff alleges that the Army breached his enlistment contract by
failing to justly compensate him for incurring an injury while serving in the military. Comp!. at
2. But, it is well-established that"[c]ommon law rules governing private contracts have no place
in the area of military pay." See Prestige, 611 Fed. Appx. at 982; see also Bell v. United States,
366 U.S. 393,401 (1961). And so, plaintiff cannot rely upon his enlistment contract to establish
a right to recover monetary damages. See Prestidge, 611 Fed.Appx at 982 ( Explaining the rights


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to military pay and benefits are established by statutes and regulations, not by enlistment
contracts).
        Because a breach of plaintiffs enlistment contract would not entitle him to recover
monetary damages from the government, the Court does not possess subject-matter jurisdiction
to consider plaintiffs claim. See Driessen, 116 Fed.Cl. at 41. And so, the Court must also
dismiss plaintiffs breach of contract claim for this independent reason.
                3.    The Court May Not Consider Plaintiff's Tort Claim

        Dismissal of plaintiffs tort claim is also warranted because the Court does not possess
subject-matter jurisdiction to consider this claim. In the complaint, plaintiff alleges that the
Army caused him pain and suffering, job loss, and incarceration by failing to provide treatment
for his frostbitten feet injury See Comp!. at 2. Plaintiffs claim plainly sounds in tort.

        It is well-established that the Tucker Act explicitly places tort claims beyond the
jurisdiction of this Court. 28 U.S.C. § 1491(a) ("The United States Comt of Federal Claims shall
have jurisdiction to render judgment upon any claim against the United States ... not sounding
in tort."); Rick's Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008)
("The plain language of the Tucker Act excludes from the Court of Federal Claims jurisdiction
[over] claims sounding in tort."); Hernandez v. United States, 96 Fed. Cl. 195,204 (2010)
("[T]he Tucker Act expressly excludes tort claims ... from the jurisdiction of the United States
Court of Federal Claims."). And so, the Comt must also dismiss plaintiffs tort claim for lack of
subject-matter jurisdiction. RCFC 12(b)(l).

                4.    Plaintiff's Belated Military Pay Claim Is Jurisdictionally Precluded
        Lastly, to the extent that plaintiff alleges a back pay claim based upon a decision by the
ABCMR, the Court must also dismiss this claim because plaintiff fails to establish jurisdiction or
to allege a plausible claim. 3 In his response and opposition to the government's motion to
dismiss, plaintiff raises for the first time a claim for back pay related to an unidentified decision
by the Army Board for the Correction of Military Records. See generally Pl. Resp. Specifically,


3 The Comt has held that it is generally improper to raise a new claim in response to a motion to dismiss.
Driessen v. United States, I 16 Fed. Cl. 33, 38 (2014). But, prose plaintiffs are held to less stringent
standards in the liberal construction of their pleadings. Id.


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plaintiff alleges that this claim "is premised upon [his] Constitutional Right to Due Process of
law: in this case, the decision handed down by the Army Board for the Correction of Military
records; which claim far exceeds back pay of$10,000.00." Id. at 1. But, plaintiff neither
explains the precise nature of this claim nor demonstrates that the Court possesses subject-matter
jurisdiction to consider this claim. See generally id.
        Indeed, while plaintiff states that this claim "is premised upon [his] Constitutional Right
to Due Process oflaw," simply citing to the Due Process Clauses of the United States
Constitution is not sufficient to establish the Court's jurisdiction to consider this claim. See
Calhoun v. United States, 32 Fed. Cl. 400,405 (1994), aff'd, 61 F.3d 918 (Fed. Cir. 1995)
(stating "not every claim involving, or invoking, the Constitution necessarily confers jurisdiction
on this court"); see also Livingston v. Derwinski, 959 F.2d 224, 225 (Fed. Cir. 1992) ("[T]he
mere recitation of a basis for jurisdiction by either party or a court, is not controlling .... ").
        Plaintiff also fails to state a plausible military pay claim in the complaint. See generally
Comp!. As the government correctly argues in its reply brief, the complaint does not contain any
allegations about plaintiffs alleged case before the ABC MR seeking the correction of his
military records. Def. Reply at 1; see generally Comp!. In fact, the only information that
plaintiff provides about this claim is found in his response to the government's motion to
dismiss, which simply states that this claim is based upon "the decision handed down by the
Army Board for the Correction of Military Records, which claim far exceeds back pay of
$10,000.00." Pl. Resp. at 1.
        In addition, plaintiffs reliance upon Burkins v. United States, 112 F.3d 444 (10th Cir.
1997), to establish jurisdiction over his military pay claim is misplaced. Def. Reply at 2-3. In
Burkins, the plaintiff in that case demonstrated that, among other things, he had pursued and
successfully secured the correction of his military records in proceedings before the ABCMR.
Burkins, 112 F.3d at 448. Plaintiff makes no such showing here. See generally Pl. Resp.
        Given this, plaintiff fails to establish that the Court possesses subject-matter jurisdiction
to consider his military pay claim and to assert a plausible claim for relief. And so, the Court
also dismisses this final claim pursuant to RCFC 12(b)(l) and (b)(6).
        B.      The Court Grants Plaintiff's Motion To Proceed In Forma Pauperis
        As a final matter, plaintiff has moved to proceed in this matter informa pauperis. See
generally Pl. Mot. to Proceed In Forma Pauperis. This Court may authorize the commencement

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of a lawsuit without prepayment of fees when a plaintiff submits an affidavit including a
statement of all assets, a declaration that plaintiff is unable to pay the fees, and a statement of the
nature of the action and a belief that plaintiff is entitled to redress. See 28 U.S.C. § 1915(a)(l);
see also id § 2503(d). When plaintiff is a prisoner, as is the case here, plaintiff must also submit
"a certified copy of [his] trust fund account statement (or institutional equivalent) ... for the 6-
month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2).

        In this case, plaintiff has submitted an application for leave to proceed in this matter in
forma pauperis and the necessary statements regarding his monthly $107.78 disability payment
from the Department of Veteran Affairs; the $500.00 in his checking, savings, or inmate account;
and the debt he owes to the Department of Veteran Affairs for a $2,500.00 loan. See generally
PL Mot. to Proceed In Forma Pauperis. Because of the Court's summary disposition of this case
largely upon jurisdictional grounds, and plaintiffs prose status, the Court finds that plaintiff has
satisfied the statutory requirements to proceed in forma pauperis for the purpose of resolving the
government's motion to dismiss. And so, the Court GRANTS plaintiffs motion to proceed in
forma pauperis.

V.      CONCLUSION

        In sum, the most generous reading of plaintiffs complaint makes clear that the Court
does not possess subject-matter jurisdiction to consider any of plaintiffs claims. Given this, the
Court must dismiss this action for lack of subject-matter jurisdiction pursuant to RCFC 12(b)(1 ).
Plaintiff has, however, shown that he satisfies the statutory requirements to proceed in this matter
without paying the Comt's filing fee.

        And so, for the foregoing reasons, the Court:

        I. GRANTS the government's motion to dismiss;

        2. GRANTS plaintiffs motions to proceed informa pauperis; and

        3. DISMISSES the complaint.




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      The Clerk's Office is directed to ENTER final judgment in favor of the government,
DISMISSING the complaint.

      Each party shall bear its own costs.

      IT IS SO ORDERED.




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