 United States Court of Appeals for the Federal Circuit

                                       05-5045


                                    ERIC L. GANT,

                                                     Plaintiff-Appellant

                                           v.


                                  UNITED STATES,

                                                     Defendant-Appellee.



      Eric Grant, of Grand Prairie, Texas, pro se.

       Claudia Burke, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for defendant-appellee. With her on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director
and Bryant G. Snee, Assistant Director. Of counsel was Armando A. Rodriguez-FEO,
Attorney, Office of the Navy JAG, Litigation Division, of Washington, DC.

Appealed from: United States Court of Federal Claims

Judge Christine O.C. Miller
 United States Court of Appeals for the Federal Circuit


                                         05-5045

                                      ERIC L. GANT,

                                                Plaintiff-Appellant,

                                           v.

                                     UNITED STATES,

                                                Defendant-Appellee.

                    _____________________________________________

                    NONPRECEDENTIAL OPINION ISSUED: May 11, 2005
                    PRECEDENTIAL OPINION ISSUED: August 3, 2005
                    _____________________________________________


Before MICHEL, Chief Judge, LOURIE, and BRYSON, Circuit Judges.

PER CURIAM.

      Eric L. Gant appeals from a decision of the United States Court of Federal

Claims dismissing most of his claims for lack of subject matter jurisdiction and granting

summary judgment for the government on the remaining claim. Gant v. United States,

63 Fed. Cl. 311 (2004). We affirm.

                                            I

      Mr. Gant began his military career when he joined the United States Navy after

graduating from high school. He was later selected to receive a Navy Reserve Officer

Training Corps scholarship that allowed him to complete a college degree program and

be commissioned as a Naval officer in 1993.
      While on duty in July 1994, Mr. Gant began to experience medical problems that

resulted in his becoming increasingly fatigued and unable to perform his job functions.

Between July 1994 and June 1997, Mr. Gant made numerous visits to medical clinics in

an effort to resolve his condition. He was eventually diagnosed with chronic fatigue

syndrome and sleep apnea, and he was placed on limited duty status. During that

period, Mr. Gant received three unfavorable fitness reports.

      On April 8, 1997, the Navy convened an informal Physical Evaluation Board

(“PEB”) to review Mr. Gant’s medical condition in order to determine if he was fit for

duty. The informal PEB found that Mr. Gant was not fit for further military duty, and it

awarded him a preliminary disability rating of 10 percent. Based on those findings, the

informal PEB recommended that he be discharged with severance pay.

      Mr. Gant initially sought to contest the preliminary findings in a formal PEB

proceeding, but before the formal hearing was held he changed his mind and waived his

right to a hearing. In the document in which he waived his right to a hearing, he stated

that he accepted the findings of the preliminary PEB. Before making that decision, Mr.

Gant was counseled by a disability evaluation counselor. In September 1997, Mr. Gant

was honorably discharged and was given approximately $62,000 in severance pay.

      In August 2003, Mr. Gant filed suit in the Court of Federal Claims claiming that he

had been wrongfully discharged from the Navy. In addition, he made a number of

claims regarding his alleged mistreatment by the Navy during his service and following

his discharge, including claims that the Navy (1) had violated the Military Whistleblower

Protection Act and a Department of Defense directive; (2) had violated his due process

rights; (3) had been grossly negligent in actions that injured him; (4) had committed



05-5045                                 2
fraud; and (5) had conspired against him in violation of 42 U.S.C. § 1985.              The

government moved to dismiss the first claim for failure to state a claim upon which relief

could be granted on the ground that Mr. Gant had waived his right to further review of

the informal PEB findings. The government moved to dismiss the remaining claims for

lack of subject matter jurisdiction.

       The trial court granted the motion to dismiss the claims other than the wrongful

discharge claim for lack of jurisdiction. With respect to the wrongful discharge claim, the

trial court treated the government’s motion to dismiss as a summary judgment motion.

The court then concluded that Mr. Gant had voluntarily waived his right to a formal PEB

hearing and that in so doing, he had waived his right to contest both the finding that he

was unfit for duty and the 10 percent disability rating. By failing to challenge the finding

of unfitness and the disability rating, the court explained, Mr. Gant waived his right to

raise those issues in subsequent administrative and judicial proceedings. This appeal

followed.

                                              II

       Mr. Gant’s first claim of error is that the trial court should have ruled in his favor

on the merits of his wrongful discharge claim because the government did not challenge

the court’s jurisdiction over that claim. He appears to argue that the government’s

failure to challenge the jurisdiction of the Court of Federal Claims should be taken as an

admission that he was wrongfully discharged. That argument is clearly incorrect. The

Court of Federal Claims has jurisdiction over a military discharge case if the plaintiff

alleges “that, because of the unlawful discharge, the plaintiff is entitled to money in the

form of the pay that the plaintiff would have received but for the unlawful discharge.”



05-5045                                   3
Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc). Mr. Gant

alleged that he was wrongfully discharged and that he was owed military back pay and

allowances as a result of his wrongful discharge. The court therefore had jurisdiction to

decide if Mr. Gant was wrongfully discharged. The existence of jurisdiction, however,

does not establish a right to relief. Accordingly, the government’s failure to challenge

the court’s jurisdiction on the wrongful discharge issue did not constitute an admission

of liability.

        Mr. Gant next argues that the court erred in granting judgment against him on the

wrongful discharge claim, because his waiver of a formal PEB hearing did not preclude

judicial review of that claim. The trial court, however, ruled that Mr. Gant’s waiver of his

right to a formal PEB hearing included a knowing and voluntary acceptance of the

informal PEB’s conclusions that he was unfit for military service and that his disability

rating was 10 percent. Accordingly, the court concluded, Mr. Gant “waived his right, if

he had one, to proceed in court by failing to alert the military to his objections and to

take advantage of the opportunity of a formal hearing.” Gant, 63 Fed. Cl. at 318.

        During the pendency of this appeal, this court issued an opinion in Van Cleave v.

United States, 402 F.3d 1341 (Fed. Cir. 2005), in which the court addressed the effect

of a similar waiver of a formal PEB hearing on a service member’s right to pursue an

unlawful discharge claim in court. Pursuant to our invitation, the parties in this case filed

supplemental briefs discussing the effect of the Van Cleave decision on this appeal.

After reviewing the parties’ submissions and the decision in Van Cleave, we conclude

that the decision in that case does not require that we reverse or remand in this case for

further analysis of the waiver issue.



05-5045                                   4
       In Van Cleave, which was also a military disability retirement case, the trial court

dismissed the plaintiff’s complaint for failure to state a claim on the ground that the

plaintiff’s waiver of a right to a formal PEB hearing constituted a waiver of any right to

subsequent judicial review of the plaintiff’s discharge. 402 F.3d at 1342. This court

disagreed, holding that the trial court’s conclusion that the plaintiff had waived a formal

PEB hearing did not necessarily establish that the plaintiff had waived all rights to

judicial review. This court therefore remanded the case to the trial court to determine

the scope and voluntariness of the plaintiff’s waiver. Id. at 1344-45.

       In this case, unlike in Van Cleave, the trial court specifically addressed the scope

and voluntariness of Mr. Gant’s waiver, which was precisely the question the Van

Cleave court directed the trial court to address on remand.        Focusing on the facts

relating to Mr. Gant’s waiver, the trial court concluded that Mr. Gant had expressly

accepted, and thus waived his right to contest, the informal PEB’s unfitness-for-duty

finding and its 10 percent disability rating. The court held that once Mr. Gant had

accepted those findings he was not free to challenge them administratively or in court

unless he could establish that his waiver was unknowing or involuntary. As to that

issue, the court held that Mr. Gant had not pleaded any facts or offered any evidence to

support his claim that his waiver was unknowing or involuntary.

       In challenging the trial court’s finding that he validly waived his right to a formal

PEB hearing and accepted the findings of the preliminary PEB, Mr. Gant first contends

that his waiver was made under duress. At the outset, he argues that because the

government did not file an answer to his complaint, it has conceded duress.            The

government, however, moved for dismissal of the complaint for failure to state a claim



05-5045                                  5
upon which relief could be granted, which is a procedural defense that does not require

the filing of an answer and does not concede the validity of the claim.

       Mr. Gant next contends that the evidence he proffered was sufficient to support

his claim that he signed the waiver of a formal PEB hearing under duress. He points to

statements about his medical condition, but those statements do not support his

contention that he signed the waiver under duress. He also asserts, as further evidence

of duress, that he had not been appointed an attorney for a formal PEB hearing at the

time he signed the waiver. According to SECNAVINST 1850.4C § 5220(a), a service

member will be provided a military lawyer for a formal PEB hearing when the hearing

panel receives the case.     Mr. Gant offers no evidence, however, that a panel had

received his case at the time he signed the waiver. He therefore has failed to show that

the government was in violation of section 5220(a) at the time of his waiver. Mr. Gant

makes various other conclusory allegations that he was under duress, but courts “are

not bound to accept as true a legal conclusion couched as a factual allegation.”

Papasan v. Allain, 478 U.S. 265, 286 (1986). We therefore agree with the trial court

that Mr. Gant “makes no allegation, and certainly none bolstered by evidence that is

considered on summary judgment, that any circumstances suggest duress.” Gant, 63

Fed. Cl. at 319.

       Mr. Gant next contends that his waiver was involuntary because the government

did not inform him of the option of being placed on the temporary disability retirement

list or the inactive reserve list. In order to be eligible for that status, a service member

must have 20 years of service or a disability rating of at least 30 percent. 10 U.S.C.

§§ 1201(c), 1202, 1210. Mr. Gant was ineligible for that status because he had only 13



05-5045                                  6
years of service and his disability rating was only 10 percent. While he contends that he

should have been informed about the effect of a higher disability rating, he admitted in

his complaint that he was initially disappointed with the 10 percent rating because he

knew that a 30 percent rating would qualify him for placement on the temporary

disability retirement list. Therefore, even if the government failed to inform him that a 30

percent rating would qualify him for inclusion on that list, there was no prejudicial

misrepresentation in this case because Mr. Gant concedes that he was already in

possession of that information.

       Finally, Mr. Gant argues that his waiver of a formal PEB hearing was invalid

because the findings in his case were not legally reviewed pursuant to SECNAVINST

1850.4C § 5002. That regulation, however, allows a service member to petition for legal

review of the final findings of a formal PEB hearing. Here, there were no formal PEB

findings to review. Mr. Gant does not point to any evidence that suggests he petitioned

for legal review of the informal finding, nor does he cite any authority that requires a

legal review of the informal PEB findings.

       In sum, we agree with trial court that Mr. Gant knowingly and voluntarily accepted

the finding of unfitness for duty and the disability rating assigned to him by the

preliminary PEB and that he has not shown any reason that he should be permitted to

challenge those determinations in subsequent administrative or judicial proceedings.

Accordingly, we uphold the ruling of the trial court granting summary judgment on Mr.

Gant’s challenge to the findings on which his discharge was predicated.1




   1
        Mr. Gant asserts that the trial court improperly dismissed his other claims, which
the trial court dismissed for lack of jurisdiction. He appears to assert, however, that
05-5045                                  7
      Mr. Gant makes additional arguments for the first time on appeal to this court and

in his reply brief that we need not address. Arguments not made in the court or tribunal

whose order is under review are normally considered waived. See, e.g., Caterpillar Inc.

v. Sturman Indus., Inc., 387 F.3d 1358, 1368 (Fed. Cir. 2004) (a party who fails to make

an argument at trial waives that argument on appeal).          Because there are no

exceptional circumstances in this case warranting a departure from that general rule, we

decline to address Mr. Gant’s new arguments made for the first time on appeal.

                                     AFFIRMED.




those claims should have been reviewed on the merits because they bore on his claim
that he was unlawfully discharged. Because the trial court properly found both that Mr.
Gant waived any objection to the findings that provided the basis for his discharge and
that the waiver was not shown to be unknowing or involuntary, we reject his contention
that his other claims provided additional grounds for challenging the lawfulness of his
discharge.
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