     In the United States Court of Federal Claims
                               No. 14-1157C
                          (Filed: August 20, 2015)

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MATTHEW T. CRUMLEY,

                     Plaintiff,            Military pay; wrongful discharge,
                                           10 U.S.C. § 1558(f); Reduction in
v.                                         Force Board; selection board;
                                           special board requirement for
THE UNITED STATES,                         judicial review.

                     Defendant.

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       Matthew L. Eanet, Los Angeles, CA, for plaintiff.

       Mikki Cottet, Senior Trial Counsel, United States Department of Justice,
Civil Division, Commercial Litigation Branch, Washington, DC, with whom
were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Robert
E. Kirschman, Jr., Director, and Claudia Burke, Assistant Director, for
defendant. Capt. Bryce G. Poole, Air Force Civil Litigation, Andrews, MD,
of counsel.

                                  OPINION

BRUGGINK, Judge

       In his complaint, plaintiff alleges that he was wrongfully discharged
from the United States Air Force. He seeks back-pay, reinstatement, and
correction of his military service record. Pending before the court is
defendant’s motion to dismiss for lack of jurisdiction under Rule 12(b)(1).
The motion is fully briefed. Oral argument is unnecessary. Because plaintiff
did not seek review by a “special board” as required by 10 U.S.C. § 1558(f)(1)
(2012), we grant the motion to dismiss.
                              BACKGROUND

        Plaintiff began serving as a commissioned officer on active duty in the
Air Force in 2000. He received numerous favorable evaluation reports and
recommendations during his service, eventually attaining the rank of Major in
2008. In November 2010, plaintiff was injured while serving as an Honor
Guard Ceremonial Guardsman during a funeral ceremony. Plaintiff
subsequently sent an email to senior Air Force officials on November 20,
2010, detailing the incident and requesting that the Air Force address the
situation. As a result, plaintiff received a formal Letter of Admonishment
(“LOA”) on December 21, 2010, because plaintiff bypassed his normal chain
of command and allegedly acted unprofessionally. On March 20, 2011, an
Unfavorable Information File (“UIF”) was posted to plaintiff’s record.
Plaintiff’s evaluation report for the period of July 2010 to June 2011
documented this negative information.

       Plaintiff sought administrative review with the Evaluation Reports and
Appeals Board (“ERAB”) in early Fall 2011, asking to have his evaluation
report voided. The ERAB denied his appeal on June 1, 2012. While this action
was pending, a Reduction in Force Board (“RIF”) was convened to determine
which airmen to discharge from the Air Force due to budgetary constraints.
On October 27, 2011, plaintiff received a letter informing him that the RIF had
not selected him for retention and that his separation date from the Air Force
would be in March 2012.

        On December 21, 2012, plaintiff filed an application with the Air Force
Board for Correction of Military Records (“AFBCMR”), seeking review of the
RIF and ERAB decisions, reinstatement in the Air Force, and expungement of
the LOA and UIF from his record. After a lengthy review process, the
AFBCMR denied plaintiff’s appeal on January 28, 2014. Plaintiff appealed
this decision to the Under Secretary of Defense. The Under Secretary denied
plaintiff’s appeal on August 6, 2014, stating that this decision was final.
Plaintiff instituted the present action on December 1, 2014, alleging wrongful
discharge and seeking back-pay, reinstatement, and correction of his military
record.

                               DISCUSSION

      We regularly review military pay claims, such as wrongful discharge,
pursuant to the Tucker Act’s grant of jurisdiction over claims based on money-
mandating sources of law, here, the Military Pay Act, 37 U.S.C. § 204 (2012).

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See Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003). In
certain circumstances, our ability to hear such a claim may be further limited,
however.

       Section 1558 of title 10 confines judicial review of military pay claims
in cases where the claimant challenges a decision of a “selection board:”

       A person seeking to challenge an action or recommendation of
       a selection board . . . is not entitled to relief in any judicial
       proceeding unless the action or recommendation has first been
       considered by a special board under this section or the Secretary
       concerned has denied the convening of such a board for such
       consideration.

10 U.S.C. § 1558(f)(1). In other words, this court is without jurisdiction to
review a decision of a “selection board” if the individual has not first sought
review by a “special board.” A “selection board” is defined in the same statute
as a

       Board convened under section . . . [10 U.S.C. § 638a and other
       provisions] . . . and any other board convened by the Secretary
       of a military department under any authority to recommend
       persons for appointment, enlistment, reenlistment, assignment,
       promotion, or retention in the armed forces or for separation,
       retirement, or transfer to inactive status in a reserve component
       for the purpose of reducing the number of persons serving in the
       armed forces.

Id. § 1558(b)(2)(A). A “special board” in turn is defined as a “board that the
Secretary of a military department convenes under any authority to consider
whether to recommend a person for . . . retention . . . instead of referring the
records of that person for consideration by a previously convened selection board
which considered or should have considered that person.” Id. § 1558(b)(1)(A).

        Defendant moves the court to dismiss for lack of jurisdiction because
plaintiff did not seek to have the RIF’s decision reviewed by a “special board,”
as required for judicial review under 10 U.S.C. §1558(f). Defendant points out
that the administrative record does not contain a single request for a “special
board.” Instead, plaintiff submitted the standard application to the AFBCMR,
and his appeal to the Under Secretary does not mention a “special board.”
Further, defendant argues that the court cannot grant the other equitable relief

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requested in the complaint without a pendant claim for back-pay. Given that it
is plaintiff’s burden to establish jurisdiction, defendant concludes that plaintiff’s
complaint is deficient and should be dismissed.

        In his opposition, plaintiff argues that there is no evidence that the RIF
was a “selection board” as defined by section 1558(b)(2), and, thus the special
board requirement was not triggered. Even if the RIF was a “selection board,”
plaintiff reasons that the AFBCMR was a “special board” and argues that
defendant has not proven otherwise. As an alternative avenue to meeting the
statutory requirements, plaintiff asks us to construe his appeal to the Under
Secretary as a request for a “special board.” Plaintiff offers three further reasons
why the motion should be denied: (1) further administrative review would be
futile; (2) he followed all of the Air Force’s instructions regarding appeal
procedures; and (3) the exhaustion requirement is waived because plaintiff was
improperly advised by the agency. Finally, in the alternative, plaintiff asks the
court to stay the case to allow him to seek review by a special board, rather than
dismiss it.

        The initial inquiry is whether the RIF was a “selection board” as defined
in the statute. Plaintiff and defendant disagree on this point. We conclude that
it was a “selection board” because the RIF was tasked with deciding whether to
recommend Major Crumley for retention in the Air Force. This is squarely
within the definition of a “selection board” in section 1558(b)(2). Therefore, its
decisions trigger the applicability of the special board requirement of subsection
(f).

        The second inquiry is whether the AFBCMR was a “special board.”
Plaintiff points out that the AFBCMR can be a special board under the statute and
thus it was so in this case, in effect by necessity, since he followed all of the
directions for appeal given to him by the Air Force at each step of the process.
Plaintiff further characterizes his appeal to the Under Secretary as a request for
a special board and the Under Secretary’s denial of his appeal as a denial of the
“convening of such a board” as contemplated by the statute. Id. § 1558(f)(1)
(prohibiting judicial review unless first reviewed by a special board or request for
review by such a board is denied). In a last ditch effort, plaintiff argues that
defendant has not proven that the AFBCMR was not a “special board,” and so the
motion should be denied.

        Defendant responds that the AFBCMR was not special because the
Secretary must specifically designate it as a “special board” in order for it to
satisfy the statute, and that was not done in plaintiff’s case. Further, plaintiff’s

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appeal to the Under Secretary was not in fact a request for a “special board,”
according to defendant, and thus the Under Secretary’s denial of his appeal
cannot be construed as a denial of the convening of a “special board” either.

       Although plaintiff is correct that a board for correction of military records
can be a “special board,” section 1558(b)(1)(B) is clear that it is only so when
“designated as a special board by the Secretary concerned.” Id. § 1558(b)(1)(B).
There is no indication in the administrative record that the Secretary designated
the AFBCMR as a “special board” to review plaintiff’s claim or that plaintiff
asked the Secretary of the Air Force to designate it as such. Plaintiff filed a
standard application in accordance with normal Air Force procedure. Plaintiff’s
argument that defendant should prove the negative is to no avail. It is plaintiff’s
burden to establish subject-matter jurisdiction. Reynolds v. Army & Air Force
Exch. Serv., 846 F.2d 746, 747-48 (Fed. Cir. 1988). He must thus show from the
administrative record that the corrections board was convened as a “special
board” under the statute. Plaintiff has not done so, and are we unable to find any
indication of such a designation in the record.

        Similarly, plaintiff’s appeal to the Under Secretary contains no mention
of a “special board.” It is difficult to maintain that the Under Secretary denied
the convening of a special board if he had no reason to believe that plaintiff was
requesting one. Thus, the Under Secretary’s denial of plaintiff’s appeal does not
satisfy the statute’s requirement of a “special board” or denial of a request for
one.

        Plaintiff’s alternative argument that defendant in effect waived the
exhaustion defense by not instructing plaintiff to request a special board is a
general appeal to the equities of plaintiff’s circumstances. As the Supreme Court
has stated, however, “subject-matter jurisdiction, because it involves a court’s
power to hear a case, can never be forfeited or waived.” Arbaugh v. Y & H Corp.,
546 U.S. 500, 514 (2006) (citing United States v. Cotton, 535 U.S. 625, 630
(2002)). As unfair as it may seem, defendant cannot be estopped from raising the
exhaustion defense in this instance because it is directly relevant to our
jurisdiction. And we note that plaintiff is presumed to know the law. Thus, the
fact that he was not told that he could request a special board does not preclude
defendant’s argument nor excuse the court of its obligation to dismiss a complaint
when there is no jurisdiction. See Rule 13(h) of the Rules of the Court of Federal
Claims.

      Finally, plaintiff requests that we stay this action to allow him to pursue
review by a “special board.” However, we are not empowered to issue a stay if

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we lack jurisdiction. See United Partition Sys., Inc. v. United States, 59 Fed. Cl.
627, 643 (2004).

                                 CONCLUSION

       Because plaintiff did not seek review of the RIF’s decision by a “special
board,” 10 U.S.C. § 1558(f)(1) prevents our exercise of jurisdiction.
Accordingly, defendant’s motion to dismiss for lack of jurisdiction is granted.
The clerk is directed to enter judgment accordingly. No costs.




                                                   s/ Eric G. Bruggink
                                                   ERIC G. BRUGGINK
                                                   Judge




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