Collins v. United States

• Decision Date: 18 October 2011
• Docket Number: No. 10-778C,10-778C
• Parties: RICHARD COLLINS, individually and on behalf of a class of all those similarly situated, Plaintiff, v. THE UNITED STATES, Defendant.
• Court: U.S. Claims Court

RICHARD COLLINS, individually and on behalf of a class of all those similarly situated, Plaintiff,

v.THE UNITED STATES, Defendant.

No. 10-778C

United States Court of Feberal Claims

Filed October 18, 2011

Military pay; motion to dismiss, RCFC 12(b)(1), (b)(6); reduction of separation pay under 10 U.S.C. § 1174 (2006); subject matter jurisdiction; justiciability; extent to which discretionary element of otherwise money-mandating statute renders it not money-mandating for discharge due to homosexuality; severability; determination of ineligibility on motion to dismiss for failure to state a claim.

Joshua A. Block, New York, NY, counsel for plaintiff. Leslie Cooper, ACLU Foundation, New York, NY; and Sara Berger, Freedman Boyd Hollander Goldberg Ives & Duncan, PA; Laura Schauer Ives, ACLU of New Mexico; Matt Garcia and George Bach, Bach & Garcia, LLC, Albuquerque, NM, of counsel.

L. Misha Preheim, Washington, DC, with whom was Assistant Attorney General Tony West, for defendant. Capt. John Goehring, U.S. Air Force Civil Litigation, Joint Base Andrews, MD, of counsel.

MEMORANDUM OPINION AND ORDER

MILLER, Judge.

This case is before the court after argument on defendant's motion to dismiss for lack of subject matter jurisdiction or failure to state a claim for which relief can be granted. The key issue for decision is whether a statute entitling active-duty servicemembers involuntarily discharged for homosexuality to separation pay and requiring payment of either 100% or 50% of pay—reserving to regulations the determination of eligibility and exclusion—qualifies as a money-mandating statute when the Secretary of Defense reservesdiscretion "in extraordinary cases" to deny separation pay or to increase the award for servicemembers in the 50% category under the regulations up to 100%.

FACTS

I. Background

Richard Collins ("plaintiff") enlisted in the United States Air Force (the "Air Force") in April 1997. After serving ably for over nine years, plaintiff was involuntarily—albeit honorably—discharged from service on March 10, 2006, pursuant to 10 U.S.C. § 654 (2006), the Air Force's "Don't Ask, Don't Tell" ("DADT") policy. At the time of his discharge, plaintiff had attained the rank of Staff Sargent (E-5). Plaintiff received $12,851.24 in separation pay, rather than the $25,702.48 that he expected to receive under 10 U.S.C. § 1174 (2006). Plaintiff was informed that the reason his pay had been halved was that his discharge had been for "homosexuality."

II. Procedural history

Plaintiff filed a class-action complaint in the United States Court of Federal Claims on November 10, 2010, on behalf of himself and all other servicemembers honorably discharged between November 10, 2004, and November 10, 2010, who also received only half separation pay by reason of "homosexuality." Pl.'s Br. filed June 10, 2011, at 9. The complaint alleges that the Department of Defense's ("DoD") policy of halving the separation pay of those servicemembers discharged for "homosexuality" or "homosexual conduct" violated the servicemembers' rights to equal protection and substantive due process. Id.

On February 14, 2011, plaintiff filed a motion to certify the class and a motion to hold in abeyance briefing on class certification because defendant would mount an initial challenge to subject matter jurisdiction. After briefing was completed on March 2, 2011, with defendant indicating its agreement, the court entered an order suspending briefing on the class certification until resolution of defendant's forthcoming motion to dismiss pursuant to RCFC 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and for failure to state a claim, which was filed on May 10, 2011, and fully briefed on July 18, 2011.

DISCUSSION

I. Standards

1. Subject matter jurisdiction pursuant to RCFC 12(b)(1)

Defendant levies the objection that plaintiff's asserted claims are outside the court's jurisdiction. Jurisdiction must be established before the court may proceed to the merits of a case. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88-89 (1998). Courts are presumed to lack subject matter jurisdiction unless it is affirmatively indicated by the record; therefore, it is a plaintiff's responsibility to allege facts sufficient to establish the court's subject matter jurisdiction. Renne v. Geary, 501 U.S. 312, 316 (1991); DaimlerChrysler Corp. v. United States, 442 F.3d 1313, 1318 (Fed. Cir. 2006) ("[I]t is settled that a party invoking federal court jurisdiction must, in the initial pleading, allege sufficient facts to establish the court's jurisdiction."). Once the court's subject matter jurisdiction is put into question, it is "incumbent upon [the plaintiff] to come forward with evidence establishing the court's jurisdiction. . . . [The plaintiff] bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence." Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988) (citation omitted); accord M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010). However, when a federal court hears a jurisdictional challenge, "its task is necessarily a limited one." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Id.

Defining the jurisdictional reach of the Court of Federal Claims, the Tucker Act, 28 U.S.C. § 1491(a)(1) (2006), "confers jurisdiction upon the Court of Federal Claims over the specified categories of actions brought against the United States, and . . . waives the Government's sovereign immunity for those actions." Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc). The Court of Federal Claims has "jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States . . . ." 28 U.S.C. § 1491(a)(1).

Fisher is a seminal case in which the United States Court of Appeals for the Federal Circuit sought to clarify Tucker Act jurisprudence, which had blended the questions of the Court of Federal Claims' jurisdictional grant with the merits of the claim. "This mixture has been a source of confusion for litigants and a struggle for courts." Fisher, 402 F.3d at 1172. Because the Tucker Act does not provide any substantive causes of action, "a plaintiff must identify a separate source of substantive law that creates the right to money damages" "inorder to come within the jurisdictional reach and the waiver of the Tucker Act." Id.; see also United States v. Mitchell, 463 U.S. 206, 216 (1983). In Tucker Act cases, this requirement has often been interpreted to mean that the source must be "money-mandating." See Fisher, 402 F.3d at 1172.

In Fisher the Federal Circuit condensed the required jurisdictional inquiry into a single-step approach to decide whether a constitutional provision, statute, or regulation is money-mandating and therefore within the jurisdiction of the Court of Federal Claims.

When a complaint is filed alleging a Tucker Act claim based on a Constitutional provision, statute, or regulation, . . . the trial court at the outset shall determine, either in response to a motion by the Government or sua sponte[,] . . . whether the Constitutional provision, statute, or regulation is one that is money-mandating.

If the court's conclusion is that the Constitutional provision, statute, or regulation meets the money-mandating test, the court shall declare that it has jurisdiction over the cause, and shall then proceed with the case in the normal course. For purposes of the case before the trial court, the determination that the source is money-mandating shall be determinative both as to the question of the court's jurisdiction and thereafter as to the question of whether, on the merits, plaintiff has a money-mandating source on which to base his cause of action.

If the court's conclusion is that the source as alleged and pleaded is not money-mandating, the court shall so declare, and shall dismiss the cause for lack of jurisdiction, a Rule 12(b)(1) dismissal—the absence of a money-mandating source being fatal to the court's jurisdiction under the Tucker Act.

Fisher, 402 F.3d at 1173 (citation omitted). A statute is money-mandating if "it 'can fairly be interpreted as mandating compensation for damages sustained as a result of the breach of the duties [it] impose[s].'" Id. (alteration in original) (quoting Mitchell, 463 U.S. at 219); see also Samish Indian Nation v. United States, No. 2010-5067, 2011 WL 4359941, *5 (Fed. Cir. Sept. 20, 2011) (discussing how courts determine whether statute is money-mandating and referencing same rule formulation) ("Samish II"). Regarding what constitutes a "fair interpretation," the Federal Circuit formulated a litmus test: "It is enough . . . that a statute creating a Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages. While the premise to a Tucker Act claim will not be 'lightly inferred,' . . . a fair inference will do." Fisher, 402 F.3d at 1173-74 (second alteration inoriginal) (emphasis added) (quoting United States v. White Mountain Apache Tribe, 537 U.S. 465, 473 (2003)).

Importantly, the court in Fisher made clear that "[i]t is the statute, not the Government official, that provides for the payment." Fisher, 402 F.3d at 1175. The court emphasized that

[t]he fact that the statute imposes requirements for the payment of money does not mean that only claimants who have been determined by a Government official to meet those requirements have a right to the money the statute provides. . . . If the Government official's determinations under the statute are in error, the court is there to correct the matter, and

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