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                            No. 13-137C          FILED
                                           (Filed: May 6,2014)
                                                                                   MAY 6 2014

 JASON W. LIEBER,
                                                                                 'Eil'33i3h?fi"
                          Plaintiff,                        Pro Se Plaintiffs; Motion to Dismiss for
                                                            Lack of Subject Matter Jurisdiction;
                                                            RCFC 12(b)(1)

 THE TINITED STATES OF AMERICA,

                         Defendant.




        Jason W. Lieber, Gilbert, AZ, plaintiff, pro se.


 - for defendant. speck, civil Division, United States Department of Justice, washington,
        Elizabeth
               Anne
_
DC,




KAPLAN, Judge:

        The   plaintiffin this   case, Staff Sergeant   ('ssc')   Jason   w. Lieber, proceeding   p1q se, has
fileda complaint claiming that the Army breached a contractual obligation to providJ il-im
                                                                                                 with a
$ 10,400 bonus upon his re-enlistment in the service. He seeks to recoup da-ages
                                                                                         in the amount
of $3 1,2.00, w_h_ich he alleges "will cover interest paid, fines associated with, ani time spent
                                                                                                  on
proceeding with this case." Compl. ,lf 7.

        The govemment has filed amotion to dismiss pursuant to Rules 12(bxr)
                                                                                  and 12(b)(6) of
the Rules of the court of Federal claims
                                              C'RCFC). Altematively, it has movei for judiment on
the administrative record. on April 21,2014, in accordance with RCFC 12(d),
                                                                                the co.'i guu"
the parties notice that it intended to treat the government's motion to dismiss
                                                                                       under RCFC
12(b)(6) as a motion for summary judgment, pursuant to RCFC 56.t



' As the Court indicated in that notice, although the government
                                                                 had moved in the alternative for
judgment on the administrative record, that procedural route is not
                                                                     available in this case because
the plaintiffis not requesting that the Court review an administrative decision;
                                                                                  he is seeking de
49p review of a breach of contract claim. Therefore, the appropriate mechanism throulh which
the court may consider the govemment's contentions is througrr a motion
                                                                             for summary
         For the reasons set forth below, the court grants the government's RCFC 12(b)(l ) motion
 to dismiss for lack ofjurisdiction.

                                      BACKGROUND

        SSG Lieber joined the Army on october 31, 2006, committing to four years of active
 duty service. Administrative Record (",A11"; Tabs A15-16. His Military occupation Specialty
 C'MOS) is 35F or Intelligence Analyst. AR Tab A1 1 at 15.
        on December 30, 2008, two years into his initial service obligation, SSG Lieber agreed
to reenlist in the Army, accruing a new expiration term ofservice date ofDecember 30,2012.
AR Tab A8 at 10-l     l.
                       Pursuant to Army regulations at the time, SSG Lieber was elisible for a
reenlistment bonus on the basis of his MOS. Id.,

           SSG Lieber received a $5000 "LoneA" reenlistment bonus (AR Tab Ag at 10), pursuant
to Army Regulation 601-280, chapter 5-6 and the Military personnel (.MILPER,) Message 0s-
241 that was then in effect. Def. App. C'AX) 23, 35 (reproducing, respecrively, MILPER
Message 08-241 and Army Regulation 601-2g0, chapter5-6). Al,zoie A- bonus is provided
                                                                                                 to
reenlistments that occur between twenty-one months ofactive Federal service and ten years of
Active service. Army Regulation 601-280, chapter 5-6. A,,Zone B" reenlistment is one that
occurs between six years and ten years of active service. Id. The regulations provide
                                                                                      that ,,[a]
qualified soldier may be paid an SRB only once within each zone oritigititity.- ra.

        SSG Lieber alleges that on or about August 29, 2012,he signed a second reenlistment
contract with the Army which included a promise that he would be provided with a lump-sum
reenlistment bonus of$10,400. compl. 4. He further alleges thaiupon signing the
                                        tf                                           contract he
immediately took an oath of reenlistment in the presence of his fellow serviie m-embers. ld.

         According to the "Enlistment/Reenlistment Document', attached to the plaintifFs
complaint' at the time he signed the agreement, SSG Lieber had already served some five years,
nine months, and twenty-eight days of active duty; his re-enlistment was for
                                                                             an additional six-
year period. Section 8(a) ofthe Form indicates that SSG Lieber
                                                                 would receive an .,Overseas
Assignment Reenlistment option (Hawaii Ap)" and an,.sRB A zone', paidin
                                                                                a lump sum as
authorized by "IAW Milper Message 12-295 para 4." In addition, in part II
                                                                             of the document,
there is a handwritten notation from SSG Lieber, recording that he had be"n p.oo,is"J
                                                                                       u fro,+oo
bonus and reassignment to Hawaii.




contentions is through a motion for summary
                                            iudgment. Lewis v. united states, 114 Fed.     cl.
682,684 n.l, 685 (2014); Williams v. United Staies, 100 Fed. Cl. 26,3 J,65
convertrng govemment's motions to dismiss or in the altemative for judgment
                                                                            eLl)(both
                                                                            on the
administrative record to motions for summary judgment).


] lh3 reeulations provide that the "MoS designated for the [selective Reenlistment Bonus-
'lllP"t *itt be announced by message from commander, HRC-Alexandria,         Attn: AHRC-EPR..
AX   35.
         SSG Lieber alleges that the next day, on or about August 30,2012, he was notified that
 he should report to the Retention office to discuss his contract. compl. 5. At that time, he was
                                                                         fl
 told "that the contract was written incorrectly and would not be honored." Id. Specifically, sSG
 Lieber states that he was informed that because he had already received a bonus in his ,.Alpha
 zone" ('ls. zone A) he was ineligible under Army Regulations to receive a second one. Id.
 According to a swom statement submitted by Sergeant First class ("SFC") Jedediahwells, on
 August 29, he discovered that SSG Lieber had already received the zone A bonus and that,
 because of this "discrepancy," ssG Lieber was not eligible for a zone B bonus until November
 2012; he explained this to SSG Lieber on August 30. ARTab85 at 109-111.

         Thereafter, ssG Lieber complained to the Inspector General's office, which refened him
 to the Post Retention office. compl. fl 5. According to SSG Lieber, he received assurances
 from SFC Prada in the Post Retention Office "that there was nothing to worry about" and that he
 would still receive both his assignment to Hawaii and the $10,400 bonus. Id. SFC prada told
 SSG Lieber that he would 'Just have to wait until the 1't of November 2011, as that would
                                                                                           mark
 the beginning of [SSG Lieber's] seventh year on active duty." Id.

        Despite these assurances, on September 17 ,2012, SSG Lieber received a phone call
 notif ing him  again that he would not be receiving the $10,400 bonus. compl.
                                                                                    15. In fact,
MILPER Message 12-294, which was released on that day, stated that, effeciive october 15,
2012, soldiers with SSG Lieber's MoS and rank were noi eligible for an sRB. AX 16.
Although sSG Lieber's command requested an exception from the new policy for him, the
                                                                                                Army
disapproved the request. AR Tab Br at 62, Tab 84 at 6g. According toih" gou"-,n"nt (Def.'s
Mot' 6), at that point the Army gave SSG Lieber the option of eitheriequesti-rg processing
                                                                                               for a
defective or unfulfilled reenlistment request in order to re-establish his
                                                                           ireviou"s May 29,2013
Expiration Term ofService Date, or conecting his reenlistment to refleit no bonus entitiement.
He chose the latter, executing a new enlistment document that reflects the assignment
                                                                                          to Hawaii
but no bonus. AR Tabs Al-3.

                                       DISCUSSION

        The Court of Federal claims has jurisdiction under the Tucker Act to hear .,any
                                                                                         claim
against the United States founded either upon the constitution, or any Act
                                                                            ofcongress or any
regulation ofan executive department, or upon any express or implied contract
                                                                                 wiih the united
states, or for liquidated or unliquidated damages in caies not sounding
                                                                        in tort." 2g u.s.c.      $
 1a9l(a)(1) (2006). The Tucker Act waives the sovereign immunity oithe United
                                                                                       States to allow
a suit for money damages, united States v. Mitchell, +or u.s. 206,2r2(r9g3),
                                                                                    but it does not
confer-any substantive rights on a plaintiff. united states v. Testan 424 u.s.
                                                                        ,          3g2,lsz 1t0rc1.
Therefore, a plaintiff seeking to invoke the         r Tu.k". Act jurisdiction must iienti$, an
independent source ofa substantive right to"ou.t damages from the
                                                money                      United States arisins out
of a contract, statute, regulation-or constitutional provision. run', rt"l"opt". se*..
                                                                                        tn". u.?.i.
Aviation Admin., 525 F.3d t299,1306 (Fed. Cir. 2008).

         In deciding a motion to dismiss for lack ofsubject matter jurisdiction, the court
                                                                                           accepts as
true all undisputed facts in the pleadings and draws ali reasonable inferences
                                                                                in favor of the
plaintiff. Trusred Integrarion. Inc. v. United Stares, 659 F.3d 1159, il63
                                                                            6ea. clr.
courtmay go outside of the pleadings when ruling on a motion to dismiss under
                                                                                       ioirj.   rne
                                                                                    RCFC li(bx1)
and "inquire into jurisdictional facts" to determine whether it has jurisdiction.
                                                                                  Rocovich v.
 United States, 933 F ,2d 991,993 (Fed. Cir. l gg l ). It is well established that complaints that are
 filed by gq se plaintiffs, as this one is, are held to "less stringent standards than formal pleadings
 drafted by lawyers." Haines v. Kerner, 404 U.S. 5l9,520 (1972). Nonetheless, even p1q se
 plaintiffs must persuade the court that jwisdictional requirements have been met. Bemard v.
 United States, 59 Fed. Cl. 497, 499 (2004), affd,98 Fed. App'x 860 (Fed. Cir. 2004).

        In this case, SSG Lieber does not allege a statutory or regulatory entitlement to receive
 the bonus he seeks, and the court's independent analysis has not detected any basis for such a
 claim. see Martinez v. united states. 77 Fed. cl. 319,323 (2007) (observing that where a
 complaint has been filed by a pro se litigant, the court should look to the record as well as the
 complaint to determine if the plaintiff"has a cause of action somewhere displayed") (quotrng
 Ruderer v. Unired states. 412F.2d,1285,1292 (ct. cl. 1969)), affd.260 ria. app;xiea
 cir.2008) (per curiam). Instead,
                                                                                                6ia.
                                    he has alleged a right to recover damages based on an alleged
 breach of contract by the govemment.'

          While this Court has jurisdiction over claims founded on contracts with the government,
 it is well established that a service member's entitlement to pay and other benefits is set by
 statute and regulation and not by contract. United States v. Larionoff,43l u.s. s64, s69 (1977);
 schism v. united states. 316 F.3d 1259,1272 (Fed. cir. 2002) (enbanc). Therefore, the failure
 to pay a military bonus does not give rise to a claim for breach of contract. Favreau v.
                                                                                           United
 states, 3 17 F .3d 1346, 1356-57 (Fed Cir. 2002;; see also Bell v. united states,166
                                                                                        u-sj93,
 401 (1961) (observing that "commonlaw rules governing        priuut              e no place in the
 area of military pay"). Nor can the doctrine of equitable ;;toppel be invokedto.nubl"
                                                                                           th"
plaintiffto enforce the verbal and written representations made to him about his bonus
entitlement' under equally well-established precedent, promises made by military personnel
regarding bonus entitlements that are inconsistent with governing laws and regulations
                                                                                           may not
serve as the basis for a claim for monetary relief. parker v. Unitid States 461F        g06, sd9 (ct.
                                                                            ,      .2d
c_1. 1972); see also Brant v. United states 597 F.2d716,7t0 (cl.
                                                                    ct. 197t). As the Supreme
court observed in office of personnel Management v. Richmond, 496 u.S. 4r4,416, 4rg-20
(1990), thc doctrine ofequitable estoppel cannot provide a basis for recovering
                                                                                  ,non"t*y
benefits that have been mistakenly promised by igovemment official because',.paymenis
                                                                                              of
money from the Federal rreasury are limited to those authorized by statute.,'
                                                                                Fo, ti"r" ..u.o.,r,
the court lacks jurisdiction over SSG Leiber's claims under the Tucker Act.
                                                                                see Moden v.


 13"^nt-"t-*1ff aoes not appear to be alleging a statutory claim for a re-enlistment bonus under 37
 U'S'C' $ 308 (and the Court's independent analysis has for.rnd no apparent basis
                                                                                      for such a claim)
 Therefore, the Court need not resolve the merits ofthe government-'s argument
                                                                                     that section 30g
is not a "money-mandating" statute for purposes ofinvJking this Courtis
                                                                              Tucker Act jurisdiction
because it employs the term "may" with reipect to the Seciary's
                                                                     decision to grant eilistment
bonuses. The court notes, nonetheless, thai the govemment's argument
                                                                             appeis to conflict with
the Supreme Court's decision in Uurla(! States v. Larionoff, 431 a.S. g64,^ti69
                                                                                    (1977), in which
it considered and favorably adjudicated claims fo, enlistment bonuses based on'section
                                                                                             30g,
brought by a class of service members. see also parker v. United states
                                                                           ,  46r F .2d s06 (ct. cr
 1972) (exercising jurisdiction over claim for enlistment bonus under
                                                                        section 308);
                                                                                   Hale v. United
           Fed' cl. 339, 346 (2012) (expressly holding that Tucker A"tiu.irai"tion ti".
S-tates, 107
claim based on 37 u.S.c. g308i(a)(l) foi prioi-service enlistment bonus for
                                                                                             toi:
                                                                            reservists).
United States, 404 F.3d 1335, 1341 (Fed. Cir. 2005) (dismissal for lack ofsubject matter
jurisdiction is appropriate where a claim is "foreclosed by prior decisions of
                                                                               [the Supreme]
court, or otherwise completely devoid of merit as not to involve a federal controversy") (quoting
 Steel Co. v. Citizens for a Betrer Env't, 523 U.S. 33, 89 0998)) .

                                     CONCLUSION

        SSG Leiber has not met his burden of demonstrating that this Court has jurisdiction over
his claim that the govemment wrongfully denied him a reenlistment bonus. Foi that reason, the
govemment's motion to dismiss pursuant to RCFC l2(bx1) is GRANTED and the complaint is
dismissed without prejudice.

       IT IS SO ORDERED.



                                                    ELAINE D. KAPLAN
                                                    Judge
