NOTE: This disposition is nonprecedential 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

CAPTAIN ROSS E. JOSLYN, 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

__________________________ 

2010-5080 

__________________________ 

Appeal from the United States Court of Federal 

Claims in Case No. 08-CV-925, Chief Judge Emily C. 

Hewitt. 

__________________________ 

Decided: May 13, 2011 

__________________________ 

MICHAEL D.J. EISENBERG, Law Office of Michael D.J. 

Eisenberg, of Washington, DC, argued for plaintiffappellant. 

JAMES P. CONNOR, Attorney, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, of Washington, DC, argued for defendantappellee. With him on the brief were TONY WEST, Assis-
2

tant Attorney General, JEANNE E. DAVIDSON, Director, 

and REGINALD T. BLADES, JR., Assistant Director. 

__________________________ 

Before GAJARSA, PROST, and O’MALLEY, Circuit Judges. 

PER CURIAM.

Plaintiff Captain Ross E. Joslyn (“Captain Joslyn”) 

appeals the decision of the United States Court of Federal 

Claims (“trial court”) dismissing his complaint for lack of 

jurisdiction and, alternatively, granting judgment on the 

administrative record in favor of defendant United States. 

Joslyn v. United States, 90 Fed. Cl. 161 (2009). Captain 

Joslyn also appeals the trial court’s denial of transfer. 

For the reasons stated below, we affirm-in-part and 

vacate-in-part. 

BACKGROUND

Captain Joslyn is a veteran of Operation Iraqi Freedom, and he obtained the rank of Captain in the U.S. 

Army. During his tour in Iraq, he was involved in a 

Bradley Fighting Vehicle roll-over accident, and was 

treated for possible neck and back injuries. Following 

significant combat operations, including the death of a 

member of his platoon, Captain Joslyn was removed from 

his position as a platoon leader as his performance as a 

leader and infantryman deteriorated. 

After service in Iraq, Captain Joslyn was assigned to 

Fort Hood, Texas where, in 2004 and 2005, he received 

“outstanding” evaluations on his Officer Evaluation 

Reports (“OER”). He was then transferred to the University of Texas at Arlington to serve as an assistant ROTC 

instructor. In 2006, however, Captain Joslyn received an 

“unsatisfactory” evaluation on his OER, apparently based 
3

on problems with his level of physical fitness. According 

to Captain Joslyn, on or about May 1, 2007, his commander, Lieutenant Colonel Scott Baker, advised him 

“that if he did not retire out of the military, he would 

receive a negative [OER].” Compl. ¶16. Subsequently, 

Captain Joslyn tendered his unqualified resignation on 

June 27, and contemporaneously was given a “satisfactory” evaluation on his OER. Although his resignation 

was approved on August 7, 2007, he remained on active 

duty.1 

On December 12, 2007, a military psychiatrist found 

that “with a reasonable degree of medical certainty . . . 

[Captain] Joslyn is suffering from chronic post-traumatic 

stress disorder [(“PTSD”)] and it is affecting his ability to 

function in the military setting.” J.A. 162. The psychiatrist also noted that Captain Joslyn had been treated for 

PTSD since May 2006. She ultimately concluded that 

Captain Joslyn failed to meet retention standards and 

referred him for a disability evaluation. 

In March 2008, a military orthopedic physician provided a Medical Evaluation Board (“MEB”) report on 

Captain Joslyn. The report identified Captain Joslyn as 

having “lumbar degenerative disk disease with facet 

arthrosis,” “left anterior knee pain,” and “right knee 

status post anterior cruciate ligament reconstruction.” 

J.A. 167. The report concluded that Captain Joslyn “is 

unable to fulfill the requirements of his [Military Occupational Specialty] secondary to the pain in his back and 

now in his left knee.” Id. On review, the MEB determined that Captain Joslyn’s PTSD, lumbar degenerative 

 1 Captain Joslyn’s discharge was originally scheduled for May 1, 2008, but he subsequently received a 

series of medical extensions. In June 2008, he was reassigned to the Fort Hood separation transfer point until his 

discharge on December 31, 2008. 
4

disk disease, and left anterior knee pain were “medically 

unacceptable” in accordance with Army Regulation 40-

501, and referred him to a Physical Evaluation Board 

(“PEB”). J.A. 94. 

Captain Joslyn’s medical records were forwarded to 

the PEB, along with memoranda from Captain Joslyn’s 

previous commanders and his OERs. Major Weinrich, 

Captain Joslyn’s commander in Iraq, provided a memorandum verifying Captain Joslyn’s combat experience, the 

loss of one of his men, and his removal from his position 

as a platoon leader. He also provided a second memorandum verifying the Bradley Fighting Vehicle accident and 

confirming that Captain Joslyn was evaluated for neck 

and back injuries following the accident. Major Weinrich 

stated that, although he was unaware of Captain Joslyn’s 

current condition, he “believe[d] the accident may have 

caused injuries that now affect [Captain Joslyn’s] ability 

to perform his current duties . . . .” J.A. 133. A memorandum from Lieutenant Colonel Baker was also included, in which he noted that Captain Joslyn, while no 

longer working at the University of Texas at Arlington, 

“has the current ability to perform the duties normally 

expected of a junior Captain in the U.S. Army.” J.A. 76. 

Lieutenant Colonel Baker’s memorandum was also forwarded to the Army psychiatrist who initially evaluated 

Captain Joslyn. After reviewing Lieutenant Colonel 

Baker’s letter, the psychiatrist nevertheless maintained 

her conclusion that Captain Joslyn did not meet retention 

standards, and submitted a memorandum to the PEB so 

stating. 

In May 2008, an informal PEB concluded that Captain Joslyn was fit for duty. He then requested a formal 

hearing. Captain Joslyn’s request was granted, and he 

appeared before a formal PEB. The record of the PEB 

proceedings notes 
5

[Captain Joslyn’s] record demonstrates that he 

has performed his duties in a satisfactory manner 

during the entire timeframe that he has had the 

symptoms of PTSD, low back pain, and left knee 

pain. His OERs and Commander’s letter show no 

adverse impact on his performance. Although 

[Captain Joslyn] states that he has no responsibilities other than to check on the supply room, 

this is not unexpected since he put in his resignation in May 2007 . . . . 

J.A. 57. The PEB issued its final determination on July 1, 

2008, again finding Captain Joslyn fit for duty. In rebuttal, Captain Joslyn submitted two additional memoranda, 

both from Major (Retired) Ricardo Diaz, Commandant of 

Cadets at the University of Texas at Arlington. Major 

Diaz identified numerous deficiencies in Captain Joslyn’s 

performance, and concluded that Captain Joslyn “has 

performed his duties in a[n] unsatisfactory manner.” J.A. 

53. Although untimely, the PEB considered the rebuttal 

memoranda, but did not change its findings. 

On November 7, 2008, Captain Joslyn requested to 

withdraw his resignation. This request was not supported by his commanders. Indeed, one commander noted 

that Captain Joslyn “is currently being considered for 

[Uniform Code of Military Justice] for adverse actions,” 

and another noted that Captain Joslyn “cannot accomplish the simplest of tasks.” J.A. 43. He was honorably 

discharged from the Army on December 31, 2008. 

Captain Joslyn filed his complaint with the Court of 

Federal Claims on December 30, 2008, immediately prior 

to his discharge. The complaint pled the Tucker Act as 

the basis for jurisdiction. Compl. ¶ 2. It then repeatedly 

stated that “[t]his is an action seeking judicial review 

under § 706 of the Administrative Procedure Act 
6

[(“APA”)].” Compl. ¶¶ 4-8. Each of the four claims for 

relief similarly asserted that particular actions “must be 

set aside under the Administrative Procedure Act, 5 

U.S.C. § 706(2)(A).” Compl. ¶¶ 33, 35, 37, 39. 

The United States moved to dismiss the action pursuant to RCFC 12(b)(1) and, alternatively, for judgment on 

the administrative record. The trial court granted both 

motions. In its opinion, the trial court first found that it 

lacked jurisdiction because the complaint failed to identify 

a money mandating statute as required to support an 

allegation of jurisdiction under the Tucker Act. Joslyn, 90 

Fed. Cl. at 178. Then, in the alternative, the trial court 

inferred that Captain Joslyn’s first and fourth claims for 

relief were intended to set forth claims under 10 U.S.C. § 

1201 and 37 U.S.C. § 204, both of which are moneymandating, and proceeded to grant judgment on the 

administrative record for the inferred claims. Id. at 181, 

184. The trial court also granted judgment on the administrative record on Captain Joslyn’s second and third 

claims for relief as pled under the APA, i.e., without 

inferring a cause of action under any other statute. Id. at 

184-85. Finally, the trial court decided that transfer to a 

district court was not appropriate. Id. at 185. 

Final judgment dismissing the claims with prejudice 

was entered, and Captain Joslyn filed a timely appeal to 

this court. We have jurisdiction pursuant to 28 U.S.C. 

§ 1295(a)(3). 

STANDARD OF REVIEW

This court reviews de novo a dismissal by the Court of 

Federal Claims for lack of jurisdiction. Rick’s Mushroom 

Serv., Inc. v. United States, 521 F.3d 1338, 1342 (Fed. Cir. 

2008). In doing so, we must “assume all factual allegations to be true and . . . draw all reasonable inferences in 

[the] plaintiff’s favor.” Henke v. United States, 60 F.3d 
7

795, 797 (Fed. Cir. 1995). If jurisdiction is lacking, we 

review a grant or denial of transfer for abuse of discretion. 

Rick’s Mushroom Serv., 521 F.3d at 1342. 

ANALYSIS

I. 

The Court of Federal Claims is a court of limited jurisdiction. Massie v. United States , 226 F.3d 1318, 1321 

(Fed. Cir. 2000); see also United States v. King, 395 U.S. 1, 

2-3 (1969). As the plaintiff, Captain Joslyn had the 

burden of establishing the court’s jurisdiction. Strategic 

Hous. Fin. Corp. of Travis Cnty. v. United States, 608 F.3d 

1317, 1332 (Fed. Cir. 2010); see also RCFC 8(a). He failed 

to do so. 

Captain Joslyn’s complaint identifies the Tucker Act, 

28 U.S.C. § 1491(a)(1), as the basis for the jurisdiction of 

the Court of Federal Claims over his complaint. As we 

have explained, however, the Tucker Act only waives the 

sovereign immunity of the United States. Chambers v. 

United States, 417 F.3d 1218, 1223 (Fed. Cir. 2005). The 

plaintiff can only obtain relief pursuant to a money mandating statute. Id. 

After pleading the Tucker Act as the basis for jurisdiction, Captain Joslyn’s complaint repeatedly asserted that 

“[t]his is an action seeking judicial review under § 706 of 

the APA.” Compl. ¶¶ 4-8. Similarly, each of his four 

claims for relief asserted that the action(s) in question 

“must be set aside under the Administrative Procedure 

Act, 5 U.S.C. § 706(2)(A).” Compl. ¶¶ 33, 35, 37, 39. We 

have held, however, that the APA is not a money mandating statute. See Wopsock v. Natchees, 454 F.3d 1327, 1333 

(Fed. Cir. 2006) (“The APA does not authorize an award of 

money damages at all; to the contrary, section 10(a) of the 
8

APA, 5 U.S.C. § 702, specifically limits the Act to actions 

‘seeking relief other than money damages.’”). 

Other than the Tucker Act and the APA, Captain Joslyn’s complaint cites only two statutes: 28 U.S.C. § 2501 

and 28 U.S.C. § 1346(a)(2), a limitations provision and the 

Little Tucker Act, respectively. Neither is money mandating. We therefore agree with the trial court that Captain 

Joslyn failed to identify a money mandating source of law, 

and we affirm the dismissal of Captain Joslyn’s claims for 

lack of subject matter jurisdiction. 

II. 

After finding that it lacked jurisdiction, the trial court 

considered whether it should transfer Captain Joslyn’s 

claims to another court. Joslyn, 90 Fed. Cl. at 185-86. 

The requirements for transfer are defined by statute: 

Whenever a civil action is filed in a court as defined in [28 U.S.C. § 610] . . . and that court finds 

that there is a want of jurisdiction, the court shall, 

if it is in the interest of justice, transfer such action or appeal to any other such court in which the 

action . . . could have been brought at the time it 

was filed . . . . 

28 U.S.C. § 1631. Three elements are apparent: (1) the 

transferor court must lack jurisdiction, (2) the transferee 

court must have had jurisdiction at the time of filing, and 

(3) transfer must be in the interest of justice. Because we 

agree that the trial court lacked jurisdiction, we analyze 

the jurisdiction of the potential transferee court, i.e., a 

federal district court. 

Reviewing the jurisdiction of the potential transferee 

court, we first analyze whether a district court would 

have jurisdiction over Captain Joslyn’s claims for “back 

benefits, pay, and interest” as pled. Compl. ¶ 9. The 
9

complaint alleges that the “amount in controversy is over 

$10,000.” Id. The district courts therefore lack jurisdiction under the Little Tucker Act, 28 U.S.C. § 1346(a)(2), 

which limits their jurisdiction to claims against the 

United States not exceeding $10,000. 

Because it was explicitly pled, we also analyze 

whether a district court would have jurisdiction over 

Captain Joslyn’s claims under the APA. Judicial review 

under the APA is only available when “there is no other 

adequate remedy in a court.” 5 U.S.C. § 704. In this case, 

10 U.S.C. § 1201 and 37 U.S.C. § 204 provide Captain 

Joslyn with an adequate remedy in the Court of Federal 

Claims for his first and fourth claims for relief.2 A dis-

 2 In his response to the Motion to Dismiss, Mr. Joslyn argued that he “implicitly sues under the Military Pay 

Act, 37 U.S.C. § 204.” Motion Response (D.I. 25) at 6. 

But after reciting the text of 37 U.S.C. § 204, he states 

that he “is clearly stating a claim under his retirement 

pay, e.g., his military medical retirement.” Id. at 7. Mr. 

Joslyn’s brief thus identifies two distinct claims, see

Chambers, 417 F.3d at 1224, both of which properly 

belong in the Court of Federal Claims. We agree that 

three of Mr. Joslyn’s arguments—that his “satisfactory” 

OER was inaccurate, that the finding of fitness was not 

supported by substantial evidence, and that his fitness for 

duty was judged against the wrong set of duties—are 

articulable under 10 U.S.C. § 1201. Cf. Roth v. United 

States, 378 F.3d 1371, 1381-82 (Fed. Cir. 2004) (requiring 

that documents “fairly portray the officer’s record”). We 

also agree that Mr. Joslyn’s challenge to the military’s 

denial of his request to withdraw his resignation is articulable under 37 U.S.C. § 204. Cf. Cole v. United States, 689 

F.2d 1040, 1041 (Ct. Cl. 1982) (noting the military’s 

discretion in permitting an officer to withdraw his resignation). Properly pled, such claims could provide Mr. 

Joslyn with an adequate remedy. But given his apparent 

confusion over the distinction, we decline to overlay the 

complaint’s express citations to the APA with our own 

view of his claims. In support of our decision to refrain, 
10

trict court would thus be barred from entertaining Captain Joslyn’s claims under the APA. See Smith v. Sec’y of 

Army, 384 F.3d 1288, 1292 (Fed. Cir. 2004). Because the 

potential transferee court would lack jurisdiction, the trial 

court did not abuse its discretion by declining to transfer 

Captain Joslyn’s first and fourth claims for relief. 

Captain Joslyn’s second claim for relief—that a second MEB was not properly concluded—and third claim for 

relief—that he was arbitrarily denied a medical extension—do potentially sound under the APA; they therefore 

require a more detailed analysis. Although a court is 

generally prohibited from reaching the merits of a claim 

after determining that it lacks jurisdiction, the “interest 

of justice” prong of 28 U.S.C. § 1631 provides jurisdiction 

for a limited review. Phillips v. Seiter, 173 F.3d 609, 611 

(7th Cir. 1999). If the limited review reveals that the case 

is a sure loser in the potential transferee court, then the 

transferor court should dismiss the case. Id. Here, the 

trial court found that the administrative record was 

completely void of evidence that Captain Joslyn was 

referred to a second MEB. Joslyn, 90 Fed. Cl. 184-85. 

The trial court also found the record void of evidence that 

Captain Joslyn requested an extension of his discharge 

date past December 31, 2008. Id. Given the complete 

absence of evidence supporting Captain Joslyn’s second 

and third claims for relief, a transferee court would almost certainly grant judgment on the administrative 

record in favor of the United States. The trial court 

therefore did not abuse its discretion by declining to 

transfer these two claims. 

 

we note that Mr. Joslyn never attempted to amend his 

complaint to reflect the claims he identified in his brief. 

See RCFC 15. 
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III. 

Having properly determined that it lacked jurisdiction, 28 U.S.C. § 1631 conferred upon the trial court 

authority to make a single decision: “whether to dismiss 

the case or, ‘in the interest of justice,’ to transfer it to a 

court . . . that has jurisdiction.” Christianson v. Colt 

Indus. Op. Gp., 486 U.S. 800, 818 (1988). The portion of 

the trial court’s opinion granting judgment on the administrative record exceeded this limited grant of authority. 

We therefore vacate the trial court’s grant of judgment on 

the administrative record. Strategic Hous. Fin. Corp., 608 

F.3d at 1332; see also Ramming v. United States, 281 F.3d 

158, 161 (5th Cir. 2001) (the requirement that a court 

address a Rule 12(b)(1) motion before other Rule 12 

motions “prevents a court without jurisdiction from prematurely dismissing a case with prejudice”). 

CONCLUSION

We affirm the dismissal of Captain Joslyn’s claims for 

lack of jurisdiction. The trial court therefore did not have 

jurisdiction to grant judgment on the administrative 

record, so we vacate that judgment. We also affirm the 

trial court’s decision not to transfer Captain Joslyn’s 

claims to a federal district court. Because Captain Joslyn’s claims are dismissed without prejudice, he may file a 

new, properly drafted complaint unless his claims are 

time-barred. 

No costs.