      In the United States Court of Federal Claims
                                   No. 10-648C
                               (Filed May 7, 2013)
                             NOT FOR PUBLICATION

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                        *
ERIC MARTIN MATTHEWS,   *
                        *
             Plaintiff, *
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         v.             *
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THE UNITED STATES,      *
                        *
             Defendant. *
                        *
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                    MEMORANDUM OPINION AND ORDER

WOLSKI, Judge.

       Plaintiff, Eric Matthews, filed this suit pro se on September 27, 2010, seeking
back pay and retirement pay under the theory that he was never properly
discharged from the Navy and, thus, is owed additional pay. See Compl. Mister
Matthews also seeks to change the characterization of his military service from
“other than honorable” to “honorable.” See id. ¶¶ 102-03. In response to a
document produced by the government in May of 2012, which plaintiff contends is
fraudulent, Mr. Matthews has also moved for a preliminary injunction to prohibit
the Navy from producing any additional documents without the Court’s permission.
See Pl.’s Mot. for Prelim. Inj. The government has moved to dismiss this case under
Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal
Claims (“RCFC”). See Def.’s Mot. to Dismiss (“Def.’s Mot.”). For the reasons stated
below, the Court GRANTS the government’s motion to dismiss and DENIES Mr.
Matthews’s motion for a preliminary injunction.

                                 I. BACKGROUND

       Mister Matthews enlisted in the Navy in 1990. See Ex. B, pt. 1 to Compl. at
3. On September 29, 2006, he was arrested on charges of computer pornography
and solicitation of a child. See Ex. B, pt. 2 to Compl. at 112. In 2007, he pled guilty
to coercion and enticement in violation of 18 U.S.C. section 2422(b) and distribution
of child pornography in violation of 18 U.S.C. section 2252(a)(2), and was sentenced
to prison by the United States District Court for the Southern District of Florida.
See Ex. B, pt. 2 to Compl. at 109. Since his conviction, Mr. Matthews has been
serving a federal prison sentence of twenty-one years and ten months. See id. at
114. Shortly after his conviction, the Navy initiated the process of administratively
separating Mr. Matthews from the Navy. See id. at 110. On June 6, 2007, an
administrative separation board met to consider his case, Compl. ¶ 64, and voted to
discharge Mr. Matthews with an “other than honorable” characterization of service,
Ex. B, pt. 2 to Compl. at 115-17. Mister Matthews contends that he was never
properly discharged from the Navy, and that as a result, he is owed back pay for the
time he has spent in prison and retirement pay because he was not properly
discharged before passing his twenty-year retirement benchmark. See, e.g., Compl.
¶¶ 100-103. The thrust of his complaint seems to be that the Navy had not issued a
Department of Defense Form 214 (“DD-214”) to him, and committed a variety of
other procedural errors --- with the result that he was never properly discharged.
See Compl. ¶ 103; Pl.’s Mot. for Prelim. Inj.

       Mister Matthews’s complaint and his subsequent brief in opposition to the
government’s motion to dismiss raise several allegations. First, Mr. Matthews
contends that the Navy failed to follow its own regulations in numerous respects
related to his separation processing. For example, the complaint alleges that the
Navy did not provide proper notice to plaintiff of his separation processing, Compl.
¶¶ 59-62, 97; did not provide plaintiff with the opportunity to participate at his
separation hearing, Compl. ¶¶ 64, 96; failed to provide constitutional due process,
Compl. ¶ 47; failed to provide plaintiff with a transcript or recording of the
separation board proceeding, Compl. ¶¶ 66-67; did not appropriately maintain
plaintiff’s service record, Compl. ¶¶ 68-71; did not properly respond to plaintiff’s
complaints regarding his separation proceedings, Compl. ¶¶ 72-84; and failed to
issue a DD-214 to him, in violation of Navy regulations, Compl. ¶¶ 22, 24, 90.
Mister Matthews also alleges that his administrative separation board acted
arbitrarily and capriciously, Compl. ¶¶ 64-65, and that the Board for Correction of
Naval Records and the Naval Discharge Review Board improperly failed to correct
his record, Compl. ¶¶ 28-33, 87-92. Based upon these alleged procedural violations,
Mr. Matthews contends that he was not properly discharged from the military and
is, therefore, entitled to back pay. See Compl. ¶¶ 17-24, 46, 100, 103.1 In addition,
because it has been more than twenty years since Mr. Matthews enlisted in the
Navy, and because he was allegedly never properly discharged, Mr. Matthews
argues that he is entitled to retirement pay, also known as retainer pay. See id.



1 Mister Matthews argues both that he was never discharged, and alternatively,
that if he was in fact discharged, the discharge was improper and he is entitled to a
retroactive reinstatement. See Compl. ¶¶ 17-24, 46, 100, 103; Pl.’s Reply to Def.’s
Mot. to Dismiss at 4.
                                         -2-
       While the back pay and retainer pay claims form Mr. Matthews’s primary
allegations, he also alleges that the characterization of his military service as “other
than honorable” was improper and should be corrected by this court. See Compl.
¶¶ 30, 52, 103. Mister Matthews makes a number of other claims under the
Government in the Sunshine Act, 5 U.S.C. § 552b, the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, the Military Whistleblower Protection Act, 10 U.S.C.
§ 1034, and the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. See Compl.
¶¶ 66, 68-69, 79-81, 93-95. Plaintiff also requested in his complaint that the Court
instruct the Navy to redraft several of its regulations and change its interpretation
of certain federal statutes. See Compl. ¶ 102. In his response to the government’s
motion to dismiss, Mr. Matthews explains that these non-monetary claims are
merely offered in support of his claims brought under the Military Pay Act. See Pl.’s
Reply to Def.’s Mot. to Dismiss (“Pl.’s Reply”) at 9 (citing 37 U.S.C. § 204).

        With respect to plaintiff’s claims which are not based on money-mandating
statutes, the government argues in its motion to dismiss that the Court lacks
subject-matter jurisdiction. See Def.’s Mot. at 8-9. Regarding plaintiff’s claim for
back pay for the time he has spent in prison, the government argues that plaintiff
cannot state a claim for back pay under the Military Pay Act, 37 U.S.C. § 204(a),
and the Tucker Act, 28 U.S.C. § 1491, because servicemen in civilian confinement
forfeit all pay and allowances for their period of confinement pursuant to 37 U.S.C.
section 503 and Department of Defense Financial Management Regulation, volume
7A, chapter 1, Tables 1-12. See id. at 10-12. The government also argues that
plaintiff cannot state a claim for retainer pay because he has not attained twenty
years of active duty service, as is required to receive such pay. See id. at 10, 12-14.
Finally, the government contends that because plaintiff cannot state a claim for
monetary relief, the Court does not have jurisdiction to address the alleged
procedural violations that plaintiff identifies in connection with his separation
processing, and that the Court cannot grant the equitable relief that plaintiff seeks.
See id. at 14.

       In response, Mr. Matthews contends that he has stated a claim for back pay
and retirement pay, and repeats his argument that since he was never properly
discharged from the Navy, his time in prison should count as active duty service for
which he is entitled to pay. See Pl.’s Reply. Mister Matthews also alleges that no
DD-214 was issued as of September 18, 2010 --- the time at which he would have
reached his twenty-year retirement benchmark --- and that he is, therefore, entitled
to retainer pay as well.2 See id. at 6-7. Mister Matthews also references the


2  It is also plaintiff’s opinion that the DD-214 produced by the Navy in May of 2012
is fraudulent. See Pl.’s Mot. for Prelim. Inj. In particular, although the DD-214
purports to be an “administratively re-issued” DD-214, plaintiff argues that this is a
misleading description since he allegedly never received an original DD-214. See
id.; Joint Mot. for Status Conference (June 26, 2012).
                                          -3-
constructive service credit doctrine in his response, noting that under that doctrine,
members of the military who have been improperly released from duty without a
proper discharge are deemed to have served during the time period following their
illegal release. See Pl.’s Reply at 4. In a later-filed surreply, Mr. Matthews argues
that the Military Pay Act takes precedence over the regulatory provision which
prohibits servicemen in civilian confinement from being paid for time spent in
confinement. See Pl.’s Surreply (ECF No. 62-1).

                                 II. DISCUSSION

       Under RCFC 12(b)(1), claims brought before this Court must be dismissed
when it is shown that the Court lacks jurisdiction over their subject matter. When
considering a motion to dismiss for lack of subject-matter jurisdiction, the Court will
normally accept as true all factual allegations made by the pleader and draw all
reasonable inferences in the light most favorable to that party. See Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974); Pixton v. B&B Plastics, Inc., 291 F.3d 1324, 1326
(Fed. Cir. 2002) (requiring that on a motion to dismiss for lack of subject-matter
jurisdiction the court views “the alleged facts in the complaint as true, and if the
facts reveal any reasonable basis upon which the non-movant may prevail,
dismissal is inappropriate”); CBY Design Builders v. United States, 105 Fed. Cl.
303, 325 (2012).

       While pro se plaintiffs’ filings are to be liberally construed, see Erickson v.
Pardus, 551 U.S. 89, 94 (2007), this lenient standard cannot save claims which are
outside our jurisdiction from being dismissed. See, e.g., Henke v. United States, 60
F.3d 795, 799 (Fed. Cir. 1995). Because the Tucker Act, 28 U.S.C. § 1491, does not
create any substantive rights, a plaintiff must identify a separate source of law that
creates a right to money damages for his claims to be within our jurisdiction. Jan’s
Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1306 (Fed. Cir. 2008) (quoting Fisher v.
United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part)). The
test for determining whether a statute or regulation can support jurisdiction in our
court is whether it can be fairly interpreted as mandating compensation. See, e.g.,
United States v. White Mountain Apache Tribe, 537 U.S. 465, 472-73 (2003); United
States v. Mitchell, 463 U.S. 206, 216-17 (1983); Fisher, 402 F.3d at 1173-74;
Contreras v. United States, 64 Fed. Cl. 583, 588-92 (2005).

       Plaintiff’s allegations based on the Government in the Sunshine Act, 5 U.S.C.
§ 552b, FOIA, 5 U.S.C. § 552, the Military Whistleblower Protection Act, 10 U.S.C.
§ 1034, and the APA, 5 U.S.C. § 706, do not fall within the Court’s jurisdiction
because they are not based on money-mandating statutes, regulations, or
constitutional provisions that would support our jurisdiction under the Tucker Act.
See, e.g., Pan Am. World Airways, Inc. v. Civil Aeronautics Bd., 684 F.2d 31, 36
(D.C. Cir. 1982) (noting “release of transcripts, not invalidation of the agency's
substantive action, shall be the normal remedy for Sunshine Act violations”);

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McNeil v. United States, 78 Fed. Cl. 211, 237 (2007) (dismissing FOIA claims
because “FOIA lacks any money-mandating provisions”); Gant v. United States, 63
Fed. Cl. 311, 316 (2004) (noting that the Military Whistleblower Protection Act is
not money-mandating for purposes of Tucker Act jurisdiction); Wopsock v. Natchees,
454 F.3d 1327, 1333 (Fed. Cir. 2006) (noting that the APA is not money-mandating).
In addition, the Court does not have jurisdiction to grant plaintiff’s request that the
Court direct the Navy to redraft its regulations and change its interpretation of
certain federal statutes. See Yeskoo v. United States, 34 Fed. Cl. 720, 731 (1996)
(explaining that this Court is one of limited jurisdiction and cannot “rewrite a
statute, regulation, or government contract” in order to effectuate a particular
result).

         Turning to plaintiff’s claims for back pay, there is no question that a money-
mandating statute provides the basis for our Court’s subject-matter jurisdiction.
This Court’s and the Federal Circuit’s precedents acknowledge that 37 U.S.C.
section 204(a) entitles full-time active duty service members to the pay of the rank
to which they are assigned until they are properly separated from the service. See
37 U.S.C. § 204(a); Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997)
(“[i]t is well established that 37 U.S.C. § 204 . . . serves as the money-mandating
statute applicable to military personnel claiming damages”); Sanders v. United
States, 594 F.2d 804, 810 (Ct. Cl. 1979) (37 U.S.C. § 204 “confers on an officer the
right to pay of the rank he was appointed to up until he is properly separated from
the service”). Nonetheless, Mr. Matthews must still state a claim upon which relief
can be granted. See RCFC 12(b)(6). “To survive a motion to dismiss [for failure to
state a claim], a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In making the
determination of whether to grant a Rule 12(b)(6) motion, the court “must accept as
true all the factual allegations in the complaint” and make “all reasonable
inferences in favor of the non-movant.” Sommers Oil Co. v. United States, 241 F.3d
1375, 1378 (Fed. Cir. 2001).

       Here, Mr. Matthews cannot state a claim for back pay under 37 U.S.C.
section 204(a) because he is precluded from obtaining back pay and allowances
while in civilian confinement by 37 U.S.C. section 503 and the corresponding
Department of Defense regulations. See 37 U.S.C. § 503; Department of Defense
Financial Management Regulation, vol. 7A, chapter 1, Tables 1-12; Stone v. United
States, 219 Ct. Cl. 604, 605-06 (1979) (holding that incarcerated serviceman was
“precluded by 37 U.S.C. § 503(a) from prevailing on his claim for back pay and
allowances” because his absence from duty could not be excused as unavoidable).
While active duty servicemen are “entitled to the basic pay of the pay grade to

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which [they are] assigned,” 37 U.S.C. § 204(a), a plaintiff must allege that he is
“entitled to money in the form of the pay that he would have received but for the
unlawful discharge” in order to state a claim over which this Court has jurisdiction.
Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc) (emphasis
added). A service member, however, “who is absent without leave or over leave,
forfeits all pay and allowances for the period of that absence, unless it is excused as
unavoidable.” 37 U.S.C. § 503(a). Department of Defense regulations make clear
that the absence of a service member who is confined by civilian authorities and is
ultimately tried and convicted may not be excused as unavoidable. See Department
of Defense Financial Management Regulation, vol. 7A, chapter 1, Tables 1-12.
Accordingly, since Mr. Matthews was tried and convicted by civilian authorities and
is in federal prison, he is absent from duty without leave, and his absence cannot be
excused as unavoidable. See id; 37 U.S.C. 503(a). As such, he is not permitted to
receive any pay or allowances for the period of his absence, and therefore, cannot
state a claim for monetary relief. This is true even if Mr. Matthews was improperly
discharged, since he would only be entitled to the pay “that he would have received
but for the unlawful discharge,” see Martinez, 333 F.3d at 1303 --- which is nothing
because his absence from duty was unexcused. Accordingly, the Court finds that
plaintiff has not stated a claim for back pay upon which relief may be granted.3

        Plaintiff’s claim for retainer pay fails for similar reasons. Members of the
Navy who complete at least twenty years of active duty service may receive retainer
pay --- the equivalent of retirement pay --- if they are transferred to the Fleet
Reserve after requesting a transfer. See 10 U.S.C. § 6330(b). Notably, time spent in
“civilian confinement” cannot count toward the twenty-year requirement, and is
instead considered “lost time.” See 10 U.S.C. §§ 972(a), 1405(c), 6328(a), 6333(a);
Department of Defense Financial Management Regulation, vol. 7A, chapter 1,
Tables 1-12; Hare v. United States, 35 Fed. Cl. 353, 354 (1996), aff’d, 108 F.3d 1391
(Fed. Cir. 1997). Plaintiff enlisted in the Navy in 1990, and his most recent
enlistment would have expired on September 15, 2007. See Ex. C, pt. 2 to Compl. at
108. The government argues that plaintiff cannot prove that he is entitled to
retainer pay because he was discharged from the Navy in 2007, several years prior


3 The constructive service credit doctrine also does not support Mr. Matthews’s
claim for back pay. Under that doctrine, service members who were not lawfully
terminated may be returned “to the position that they would have occupied ‘but for’
their illegal release from duty.” See Barnick v. United States, 591 F.3d 1372, 1379
(Fed. Cir. 2010) (internal citations omitted). Importantly, plaintiffs seeking
constructive service credit must show that they were “able to continue on active
duty” when the allegedly improper action occurred. See id. In Mr. Matthews’s case,
not only would Mr. Matthews’s position “but for” the allegedly illegal release be one
in which he is barred from receiving compensation due to his civilian confinement,
but his incarceration precludes a showing that he would have been able to continue
active duty service had he not been discharged.
                                          -6-
to his twenty-year benchmark. See Def.’s Mot. to Dismiss at 13. In the alternative,
the government contends that even if his discharge were unlawful or procedurally
defective, the remedy would be limited to the pay and allowances he would have
received but for the wrongful discharge up until the expiration of his current
enlistment. See id. (citing Dodson v. United States Gov’t, Dep’t of the Army, 988
F.2d 1199, 1208 (Fed. Cir. 1993)). He would not be allowed to reenlist and count the
time since his discharge toward retirement, and would not have met the twenty-
year benchmark for transferring to the Fleet Reserve as of the date that his most
recent reenlistment expired. See Def.’s Mot. at 13. Moreover, the government notes
that since time spent in civilian confinement is “lost time,” Mr. Matthews could only
count his service up until the date of his arrest, which is less than the twenty years
needed for retainer pay. See id. at 13-14.

       The Court agrees with the government and finds that Mr. Matthews has
failed to state a claim for retainer pay because he has failed to allege a set of facts
showing that he reached twenty years of active duty service. Even when the facts
as pleaded are read in the light most favorable to plaintiff, as a matter of law, he
cannot receive pay for the time that he has spent in civilian confinement ---
precluding a finding that he is entitled to retainer pay, regardless of whether he
was properly discharged from the Navy.4

       Mister Matthews has alleged numerous procedural irregularities related to
his separation proceeding, and requests both monetary and equitable relief for these
alleged violations. As discussed above, Mr. Matthews is precluded from receiving
any pay or allowances as compensation for the time he has spent in civilian
confinement. Therefore, even if he were successful in proving the alleged
procedural violations, he would not be entitled to monetary relief. In addition,
equitable relief is not available because this Court “has no power ‘to grant
affirmative non-monetary relief unless it is tied and subordinate to a money
judgment.’” James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (quoting Austin v.
United States, 206 Ct. Cl. 719, 723 (1975)). Therefore, the Court finds that it has no
jurisdiction over Mr. Matthews’s allegations that the Navy committed various
violations of its procedures and violated his due process rights, or over his request
that the Court change the characterization of his service.




4 Even if the DD-214 were fraudulent, plaintiff still would not state a claim for
retainer pay since he is precluded by law from counting time spent in civilian
confinement toward the twenty years of active duty service needed to receive
retainer pay. See 37 U.S.C. § 503; Department of Defense Financial Management
Regulation, vol. 7A, chapter 1, Tables 1-12.
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                                III. CONCLUSION

       For the foregoing reasons, the government’s motion to dismiss is hereby
GRANTED. Plaintiff’s back pay and retainer pay claims are DISMISSED for
failure to state a claim, and the rest of plaintiff’s claims are DISMISSED for lack of
subject-matter jurisdiction. Plaintiff’s motion for a preliminary injunction is
DENIED as moot. The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.


                                       s/ Victor J. Wolski
                                       VICTOR J. WOLSKI
                                       Judge




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