                    RIGINAL
3Jn tbe Wniteb $tates QCourt of jfeberal QCiaints                                    FILED
                                   No. 16-560 c                                 FEB - 9 2017
                           (Filed: February 9, 2017)                           U.S. COURT OF
                                                                              FEDERAL CLAIMS
* * * * * * * * * * ** * ** * * * * *

DANIEL CHASE HARIUS
                                         Military Pay Act, 37 U.S.C. § 204;
                                         Absent Without Leave ("AWOL"); 3 7
                      Plaintiff,
                                         U.S.C. § 503; Absence Excused as
                                         Unavoidable; DOD Financial
v.
                                         Management Regulation; Pretrial
                                         Confinement; Subsequent Conviction;
THE UNITED STATES,
                                         Due Process; Jurisdiction.
                      Defendant.

*** *** ** ******* ** ** *
       Daniel C. Harris, pro se, plaintiff.

       Meen Gue Oh, Trial Attorney, United States Department of Justice,
Civil Division, Commercial Litigation Branch, Washington, DC; with whom
was Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Robert
E. Kirschman, Jr., Director, Douglas Mickle, Assistant Director, for defendant.
LT Zachary Dembo, United States Navy, Office of the Judge Advocate
Genera l, of counsel.

                                    OPINION

BRUGGINK, Judge.

        This is a military pay case in which plaintiff seeks to recover back pay
for the period of time during his civilian pre-trial confinement. Pending is
defendant's motion to dismiss for failure to state a claim and lack of
jurisdiction. The motion is fully briefed; oral argument is unnecessary. Plaintiff
has established jurisdiction for his back pay claim, which is based on a
money-mandating federal pay statute but has failed to establish jurisdiction on
a separate claim challenging the jurisdiction of the civilian court to prosecute
a military member. The case raises the question of whether a serviceman held
in confinement prior to conviction is absent without leave, or if instead, his
absence from duty is excused. Because plaintiffs absence from duty was not
excused as unavoidable and because he was afforded due process, he has failed
to state a claim for back pay.

                              BACKGROUND

       Plaintiff has been an officer in the United States Navy since May 2005.
He was arrested on November 12, 2013, for various sexual offenses involving
minors. Two days after his arrest, the Navy withheld his pay pending the
outcome of his criminal proceedings. On March 9, 2015, plaintiff was
convicted on 31 of 32 criminal counts by a jury in the United States District
Court for the Eastern District of Virginia. He was sentenced on July 13, 2015,
to 50 years in prison and supervised release for the remainder of his life.
Following the verdict, on April 25, 2016, the Navy recommended to a Board
of Inquiry that plaintiff be separated with an "Other Than Honorable"
discharge. Plaintiff has not yet been discharged.

       On May 9, 2016, plaintiff filed a complaint in this court seeking to
recover back pay for the period of time from his arrest to the present.
Defendant moved to dismiss on July 11, 2016 pursuant to Rules 12(b)(l) and
12(b)(6) of the Rules of the United States Court ofFederal Claims ("RCFC").
On October 3, 2016, plaintiff filed a motion for leave to amend his complaint
to remove from his pay claim the period of time after conviction. The
proposed amended complaint also contained substantive responses to
defendant's motion to dismiss. Because the proposed amendment only
narrowed plaintiffs claim, the court ordered that there was no prejudice in
denying plaintiffs motion to amend his complaint and also deemed the
proposed amended complaint to be the response to defendant's motion to
dismiss.

                                DISCUSSION

        Defendant moves to dismiss for failure to state a claim upon which
relief may be granted and for lack of subject matter jurisdiction over certain
elements of plaintiffs back pay claim. Defendant also moves to dismiss for
lack of subject matter jurisdiction over plaintiffs due process claim
challenging the jurisdiction of a civilian court to prosecute a military service
member.


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I . Statutory Claim For Back Pay

        In deciding a motion to dismiss under RFCF 12(b)(6), the court
assumes the truth of all of the factual allegations in the complaint to determine
whether it states a claim upon which relief may be granted as a matter oflaw.
See Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). The
allegations of the complaint "must be enough to raise a right to relief above the
speculative level" in order to "state a claim to relief that is plausible on its
face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, "[l]egal conclusions,
deductions, or opinions couched as factual allegations are not given a
presumption of truthfulness." Blaze Constr., Inc. v. United States, 27 Fed. Cl.
646, 650-651 (1991). Thus, ifthe allegations are plausible and not otherwise
legally insufficient, a complaint will survive a motion under RCFC 12(b)(6).

         The Military Pay Act provides that a member of a uniformed service
who is on active duty is "entitled to the basic pay of the pay grade to which [he
is] assigned." 37 U.S.C. § 204(a) (2012). A service member is not entitled to
pay, however, when he or she is "Absent Without Leave (AWOL)." 37 U.S.C.
§ 503(a) ("A member of the ... Navy, ... who is absent without leave or over
leave, forfeits all pay and allowances from the period of that absence, unless
it is excused as unavoidable."). Department ofDefense Financial Management
Regulation ("DOD Regulation"), Volume 7A, Chapter 1, Tables 1-12 and 1-13
lists various reasons for AWOL status and whether those circumstances are
excused as unavoidable. Table 1-12, Rule 6 explains that "when a member is
absent from duty in confinement by civil authorities and the absence is not
excused as unavoidable then the member is not entitled to pay and allowances,
except for that part of the period that is covered by authorized leave, liberty,
or pass." DOD Regulation, vol. 7A, ch.1at63, Table 1-12, Rule 6 (2016).

        Plaintiff does not challenge the application of 37 U.S.C. § 503(a)
regarding his AWOL status after his conviction. See Matthew v. United States,
750 F.3d 1320, 1323 (Fed. Cir. 2014) (holding that a plaintiff who is tried and
convicted by civilian authorities and is in federal prison is absent from duty
without leave, and his absence cannot be excused as unavoidable); Lewis v.
United States, 114 Fed. Cl. 682, 687 (2014) ("Section 503(a) is an
insurmountable obstacle to [a] claim for back pay and allowances for any
period during which the plaintiff was incarcerated."). Rather, plaintiff urges
that the period of time he was confined prior to his conviction, or sentencing,


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be considered "excused as unavoidable" under the applicable regulations. 1
The parties cite different regulatory provisions to answer the question of
whether plaintiffs pre-trial absence from service was excused.

        Plaintiff argues that Table 1-12 treats a service member's absence
during pre-trial confinement as excused as unavoidable, thus making plaintiff
entitled to full pay during his absence. Plaintiff cites DOD Regulation Table
1-12, Rule 5, which states that, ifthe plaintiff is absent from duty because he
is held in confinement by civil authorities and the absence is excused as
unavoidable, then he is entitled to otherwise proper credits of pay and
allowances. DOD Regulation, vol. 7A, ch.I at 63, Table 1-12, Rule 5.

        Defendant counters with DOD Regulation Table 1-13, Rule 6, which
states that, if a service member is absent from duty because he is confined by
civil authorities and is tried and convicted, then his absence is not excused as
unavoidable. DOD Regulation, vol. 7A, ch.I at 65, Table 1-13, Rule 6.
Because plaintiff was subsequently tried and convicted, his pre-trial
confinement was not excused and cannot support a claim for back pay, argues
defendant.

        Plaintiff rep lies that Rule 6 ofTable 13 only applies after the conviction
has taken place, i.e., it says nothing regarding his pretrial confinement. He
points to the surrounding rules in the DOD regulations that concern themselves
with the ultimate disposition of a service member's criminal case to argue that
the context of these rules is for discerning a member's pay status post-
disposition. He avers that the standard practice of the uniformed services is
to pay a member until they are convicted or separated from service. 2

    1
   Plaintiff takes the position in his briefing that the relevant event is his
sentencing rather than his conviction, but he refers generally to the period of
time that he seeks compensation for as his "pretrial confinement."
2
  Plaintiff cites three cases in support of his argument that pretrial confinement
is treated as an excused absence. The first two cases are the Lewis and
Matthews decisions cited above and relied on by the government in support of
its argument that section 503 is controlling in these circumstances. In neither
of those cases did the plaintiffs claim back pay for periods of time prior to
their convictions. Mr. Harris thus infers that this is because both of those
plaintiffs must have been paid during their civil confinements prior to
conviction; otherwise they would have claimed those periods in their

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        We begin with Section 503 and its presumption that a service member
who is absent without leave is not entitled to pay unless that absence is
"excused as unavoidable." 37 U.S.C. § 503(a) (a service member who is
AWOL "forfeits all pay and allowances from the period of that absence, unless
it is excused as unavoidable."). The DOD regulations provide for
circumstances when a service member's absence is considered excused as
unavoidable. The provision cited by plaintiff, Rule 5 of Table 1-12, states that,
if a member absent from duty because he is "in confinement by civil
authorities" and the "absence is excused as unavoidable (see Table 1-13),"
then he "is entitled to otherwise proper credits of pay and allowances." DOD
Regulation, vol. 7A, ch. I at 63, Table 1-12, Rule 5. If, however, "the absence
is not excused as unavoidable (see Table 1-13)," then the member is "not
entitled to pay and allowances." Id. Rule 5 thus poses the question rather than
answers it and refers the reader to the answer, Table 1-13.

         Table 1-13 is entitled "Rules for Determining Whether Absence is
Unavoidable." Rules 1-10 of that table apply "when a member is absent from
duty in confinement by civil authorities." Id. at Table 1-13, Rules 1-10. Eight
of the ten circumstance described in these rules deal with the ultimate outcome
of a service member's criminal case. Rule 1 concerns acquittal; Rule 2 covers
charges dismissed or the member's death; Rule 3 deals with pretrial release
and restitution made; Rule 4 applies when a member is granted bail and the
trial is postponed indefinitely; Rule 5 concerns when the charges are dropped
or the jury is hung. Rule 6, cited by defendant, deals with trial and subsequent
conviction. In that case, the absence "may not be excused as unavoidable." Id.
at Rule 6. Rule 7 covers an appeal that does not result in an acquittal; Rule 8
states that when a member is discharged because of imprisonment or
conviction, his absence is not excused; Rule 9 applies when the confinement
results because of failure to obey a court order; and Rule 10 concerns those



respective complaints, argues plaintiff. In the third case, Paalan v. United
States, 120 Fed. App'x 817 (Fed. Cir. 2005), the plaintiff claimed back pay
only for the period of confinement after his court martial. Plaintiff infers that
he did not claim pre-court martial confinement back pay because the Navy
paid him until he was court martialed, consistent with what plaintiff argues is
the Navy's usual practice. We have considered these decisions but find that
none support plaintiff's argument. They do not speak to the issue of whether
a service member's pre-conviction confinement is excused under 37 U.S.C. §
503.

                                       5
tried and found not guilty by reason of insanity (absence is excused). None of
the rules treat civil confinement while awaiting trial as a separate
classification, and thus they do not grant plaintiff cover for his absence prior
to his conviction. Instead, Rule 6, the only circumstance listed that fits
plaintiffs current situation, draws no distinction between the period before and
after conviction. That is to say, given the fact that we now know plaintiff was
convicted, his absence turns out not to be excused. We need not speculate on
what the outcome should be ifthe challenge is brought prior to a judgment of
acquittal or conviction. The way the rules are structured, it is sufficient to say
that plaintiff can point to no regulation that characterizes his pre-conviction
status as an excused absence. He is thus unable to state a claim for which relief
can be granted for back pay under the Military Pay Act.

II. Constitutional Claims

        Apparently anticipating this outcome, plaintiff also challenges the
application of the statutes and regulations as unconstitutional because they do
not afford him due process. Plaintiff further challenges the jurisdiction of the
civilian court to convict him because he was a member of the military.
Defendant has moved to dismiss both claims as outside of this court's
jurisdiction.

        The Tucker Act gives this court jurisdiction to "render judgment against
the United States founded either upon the Constitution, or any Act of Congress
or any regulation of an executive department, or upon ay express or implied
contract with the United States ... in cases not sounding in tort." 28 U.S.C.
§ 1491(a)(l) (2012). The constitutional provision, statute, or regulation upon
which the claim is based must be "money-mandating."" Fisher v. United
States, 402 F.3d 1167, 1173 (Fed. Cir. 2005). The Tucker Act itself is "only
a jurisdiction statute; it does not create any substantive right enforceable
against the United States for money damages." United States v. Testan, 424
U.S. 392, 398 (1976). This means that, in order to invoke jurisdiction under the
Tucker Act, a claimant must be able to identify a "money-mandating"
provision of law, regulation, or contract "affording [him] a right to money
damages." Terran v. Sec 'v ofHealth and Human Servs., 195 F.3d 1302, 1309
(Fed. Cir. 1999).




                                       6
        A. Jurisdiction Over Claims of Due Process Violation Relating to Back
        Pay

        We begin with the due process claim relating to plaintiffs entitlement
to pay under the Military Pay Act. Plaintiff argues that, because he was
presumed innocent while awaiting trial, the withholding of his pay during this
period deprived him of his property without due process of law in violation of
the Fifth and Fourteenth Amendments. Defendant responds that this court has
consistently held that it lacks jurisdiction over Fifth and Fourteenth
Amendment due process claims. See LeBlanc v. United States, 50 F.3d 1025,
 1028 (Fed. Cir. 1995) (holding that the Court of Federal Claims does not have
jurisdiction to hear claims under the Fifth and Fourteenth Amendment because
those are not money-mandating provisions of law). Although defendant's
observation is correct, plaintiffs claim is not a naked assertion of rights under
those amendments as was the case in LeBlanc and other similar jurisdictional
dismissals.

        Where a plaintiff relies on a federal pay statute to establish his
substantive right to damages, the alleged unconstitutional withholding of that
pay is not outside of the Tucker Act's purview. Kennedy v. United States, 5 Cl.
Ct. 792, 795 (1984) (finding jurisdiction when the plaintiff derived his
substantive right from the pay statute coupled with his claim that he was
deprived of that substantive right in violation of his First Amendment). Here,
plaintiff relies on the Military Pay Act as establishing a substantive right to
damages under the Tucker Act. He argues that the application of the AWOL
statute and implementing DOD regulations run afoul of the Constitution's due
process protections. There is a sufficient nexus between his alleged violation
of Fifth and Fourteenth Amendment rights and the Military Pay Act to
establish jurisdiction under the Tucker Act. See Holley v. United States, 124
F.3d 1462, 1466 (Fed. Cir. 1997).

       B. Failure to State a Claim

       We thus consider whether plaintiffs due process claim is legally
deficient because it fails to state a claim that could entitle him to relief. Before
reaching the question of whether such a claim withstands Rule 12(b)(6)
scrutiny, we note that, due to the somewhat anomalous procedural history of
this motion, we are technically raising this issue sua sponte. Plaintiffs original
complaint asked for damages under the Military Pay Act from the moment of
plaintiffs pretrial confinement until the present day because he has not yet

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been discharged. Defendant moved to dismiss the complaint for failure to state
a claim, citing the application of the AWOL statute to plaintiffs claims. In
response, plaintiff moved to amend his complaint to reduce his claim to the
period of confinement prior to his sentencing. The proposed complaint also
contained substantive arguments in response to defendant's motion, such as the
citation to Table 1-12 and the assertion of due process rights. In order to avoid
further delay in resolving the motion and because there was no prejudice to
plaintiff in doing so, we denied the motion to amend the complaint but directed
the clerk's office to treat the filing as a response to defendant's motion to
dismiss. Defendant then brought the jurisdictional challenges to the due
process arguments in its reply brief but did not challenge these new claims
under Rule 12(b)(6). We allowed plaintiff to file a sur-reply to respond to
those arguments.

        Normally, the court considers the issue of whether a complaint alleges
a claim for which the court can afford relief upon a motion by a party. See
RCFC 12(h)(2). By contrast, the issue of subject matter jurisdiction can be
raised at any time, including by the court of its own accord. RCFC 12(h)(3).
The court may, however, under certain circumstances, raise the issue of the
merits of the complaint sua sponte. See, e.g., Constant v. United States, 929
F .2d 654, 657 (Fed. Cir. 1991) (affirming a sua sponte dismissal for failure to
state a claim). The test is whether "additional proceedings would enable the
plaintiff to prove facts entitling him to prevail." New York Life Ins. Co. v.
United States, 190 F.3d 1372, 1377 (Fed. Cir. 1999). Here, the issues were well
ventilated by the parties' briefing, and defendant lost the opportunity to
formally move under Rule 12(b)(6) on this claim due only to the court's own
procedural order. We thus find it appropriate to raise the issue now because
further proceedings will not enable plaintiff to prove facts that would entitle
him to prevail.

        Plaintiff argues that the withholding of his pay prior to conviction, a
period during which the accused is presumed innocent, without opportunity to
be heard on the issue of garnishment violates the fundamental constitutional
protection from the deprivation ofliberty and property without due process of
law. Plaintiff cites Sniadach v. Family Finance Corp., 395 U.S. 337 (1969),
where the Supreme Court struck down a Wisconsin state statute that allowed
for prejudgment garnishment of wages when those wages were the subject of
a civil action for garnishment. The Court held that the automatic garnishment
ofa person's wages prior to a decision on the merits violated the Fourteenth
Amendment's due process protections. Id. at 341-42. Plaintiff also cites Bell

                                       8
v. Wofjish, 441 U.S. 520 (1979), for the proposition that due process rights
attach to actions that deprive confined persons of liberty and property rights
prior to conviction. Reading these two cases together, plaintiff argues that the
Navy could not legally have stopped paying him prior to his conviction without
some additional process being afforded. We disagree.

       Plaintiff has confounded pretrial actions taken during a criminal
proceeding by the forum prosecuting the crime with the administrative actions
taken by the Navy concerning plaintiffs pay status. The Court in Bell v.
Wofjish stated that accused persons cannot generally be deprived ofliberty or
property prior to their conviction unless afforded probable cause and bail
hearings. Bell, 441 U.S. at 535-36. If the state affords that process and the
accused remains detained, the only question is whether the conditions placed
on the accused's rights are too punitive or otherwise in violation of the law.
Id.

        Here, plaintiff does not question his pretrial confinement or the other
conditions placed upon his liberty rights prior to his trial, nor would this be the
court in which to assert such a challenge. The rights cited in Bell are thus not
implicated here. The challenge is to the Navy's administrative withholding of
pay during his civilian confinement. There is no doubt that the Navy has the
legal authority to do so pursuant to 37 U.S.C. § 503. See Matthews, 750 F.3d
at 1323. The only question that remains is whether doing so without some smt
of a hearing prior to conviction invokes the due process protections of the
Constitution. It does not.

        The law is clear that a service member's right to pay is statutorily
grounded. Dock v. United States, 46 F.3d 1083, 1084 (Fed. Cir. 1995). It
follows that conditions on this right to receive pay can be enacted by
legislation and implementing regulation. Id. at 1088 ("Members have a
statutory right to their pay, but that right is the creation of Congress, and it is
subject to the conditions Congress chooses to put upon it."). Section 503
reasonably conditions the right to receive pay on a service member's
availability for duty. If the service member is unavailable and not otherwise
excused, that member is not entitled to pay. Plaintiff does not challenge that
he was AWOL during his civilian confinement. That law is settled. Matthews,
750 F.3d at 1323. The implementing DOD regulations list circumstances
when an absence is excused. The fact that plaintiff does not, as explained
above, fit under one of the categories excusing his absence-namely because
he was subsequently tried and convicted-means that the Fifth and Fourteenth

                                        9
Amendments are not implicated. See Thomas v. Cheney, 925 F.2d 1407, 1412
n.5 (Fed. Cir. 1991) ("To require that every time the Army-basically acting in
its capacity as an employer-makes a determination to 'dock' an employee's
wages or benefits for inexcusable absence, a universe of procedural due
process rights arises equal to that in a criminal proceeding, would turn due
process on its head."). Unlike the Wisconsin statute at issue in Sniadach, the
DOD regulations do not operate to garnish pay without consideration of the
underlying merits of the civilian criminal case. Plaintiffherewas subsequently
found guilty. He was therefore not statutorily eligible to receive pay during his
detention. These allegations thus fail to state a claim upon which relief can be
granted.

       C. Plaintiffs Challenge to Civilian Jurisdiction

       Plaintiffs final challenge is to the jurisdiction of the civilian court to
prosecute him as a military service member. He asserts that such jurisdiction
was a violation of the Sixth and Fourteenth Amendments. Defendant moves
to dismiss this challenge for lack of jurisdiction. We agree.

        This claim is independent of plaintiffs back pay claim and is not
otherwise attendant to it. The Court of Federal Claims "does not have
jurisdiction to review the decisions of other district courts." Joshua v. United
States, 17 F.3d 378, 380 (Fed. Cir. 1994). This includes review of whether a
district court has jurisdiction over a particular case. Further, it is well settled
that this court "does not have jurisdiction to review and overturn criminal
convictions." Anderson v. United States, No. 15-6!4C, 2015 WL 3826239, at
*2 (Fed. Cl. June 19, 2015). This claim must dismissed for lack of
jurisdiction.

                                CONCLUSION

        In sum, we have jurisdiction over both of plaintiffs back pay claims but
lack jurisdiction over his challenge to being subjected to the civilian criminal
justice system while a member of the armed services. Nevertheless, because
plaintiff was not entitled to pay during his pretrial civilian confinement, he
fails to state a claim for which relief can be granted. Accordingly, the
following is ordered:

       1. For good cause shown, plaintiffs motion to proceed in Jonna
       pauperis is granted.

                                        10
2. Defendant's motion to dismiss for lack of jurisdiction is granted as
to plain ti ff s claim challenging the jurisdiction of the district court to
try and convict him. The motion is denied in all other respects.

3. Defendant's motion to dismiss for failure to state a claim pursuant
to RCFC 12(b)(6) is granted as to plaintiffs claim of statutory and
regulatory entitlement to pay.

4. We sua sponte dismiss plaintiffs due process challenge to the
application of those statutes and regulations as fa iling to state a claim
upon which relief may be granted. No further legal proceedings would
allow plaintiff to prove facts that would entitle him to relief.

5. The clerk of court is directed to dismiss the complaint and enter
judgment accordingly. No costs.



                                             ~ ~vi
                                             ERICG.B~(
                                             Senior Judge




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