NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

JESSE RICHARDSON,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2022-2068

______________________ 

Appeal from the United States Court of Federal Claims 

in No. 1:20-cv-00086-CNL, Judge Carolyn N. Lerner.

______________________ 

Decided: March 21, 2024

______________________ 

JONATHAN W. CRISP, Crisp and Associates, LLC, Harrisburg, PA, for plaintiff-appellant.1

 ANNE DELMARE, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for defendant-appellee. Also represented by 

1 Crisp’s motion to withdraw as counsel was granted 

on March 1, 2024, after briefing but prior to the case being 

submitted on the briefs. ECF No. 53.

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2 RICHARDSON v. US

BRIAN M. BOYNTON, STEVEN JOHN GILLINGHAM, PATRICIA 

M. MCCARTHY. 

______________________ 

Before MOORE, Chief Judge, LOURIE and DYK, Circuit 

Judges. 

PER CURIAM. 

Jesse Richardson appeals from a decision of the United 

States Court of Federal Claims (“the Claims Court”) that 

dismissed his claim for reinstatement to the U.S. Army

(“the Army”) and for back pay after finding that his retirement was voluntary. Richardson v. United States, No. 20-

86C, 2022 WL 1744501 (Fed. Cl. May 31, 2022) (“Decision”). He also appeals from the dismissal of his claims for 

correction of his military records for a lack of subject matter jurisdiction. Id. For the following reasons, we affirm. 

BACKGROUND

Richardson was appointed to the rank of Warrant Officer (“WO”) on December 4, 2014. Decision at *1. In January 2015, the U.S. Army Criminal Investigation Division 

(“the CID”) began investigating allegations that Richardson had sexually assaulted a civilian Army employee. Id. 

The investigation led to his name being entered into the 

title block of an investigation report and subsequently into

a database, an action referred to as “titling.” Id. Based on 

the results of the investigation, he received a general officer memorandum of reprimand (“GOMOR”) and a negative officer evaluation report (“OER”). Id.

In August 2016, Richardson’s automatic promotion to 

Chief Warrant Officer 2 (“CW2”) was delayed and referred 

to a promotion review board (“PRB”). Id. at *2. The PRB 

convened and submitted a recommendation to the Acting 

Secretary of the Army. Id. The Acting Secretary removed 

Richardson from the promotion list, and, per Army regulations, a WO who is not selected for promotion to CW2 must 

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RICHARDSON v. US 3

be separated from the Army. Id.; Army Reg. 600-8-24 

¶ 5-11(a) (2011). On March 20, 2017, he received his notice 

of separation and was presented with four options: (1) request appointment in the Army Reserve following involuntary separation; (2) end his affiliation with the Army 

entirely after involuntary separation; (3) resign and request enlistment in the active-duty Army; or (4) request 

early retirement. Decision at *2. 

On April 4, 2017, Richardson acknowledged receipt of 

the separation notice and on the next day opted to apply for

early retirement. Id. at *3. On his retirement application, 

he stated that he understood that, if granted, his retirement “may not be withdrawn except for extreme compassionate reasons or for the definitely established 

convenience of the Government.” Id. On September 19, 

2017, his early retirement request was granted with an effective date of November 30, 2017. Id. 

Approximately seven weeks after requesting early retirement, on May 22, 2017, Richardson filed a petition with 

the Army Board for the Correction of Military Records (“the 

ABCMR”) requesting removal of the GOMOR, adverse 

OER, and titling information from his records, his retention in the Army, and his return to the CW2 promotion list. 

Id.; J.A.2 1164–72. On November 16, 2017, the ABCMR 

unanimously recommended granting the requested relief 

except for the removal of the titling, instead recommending 

that the CID consider the new information submitted by 

Richardson and change his investigation report to “unfounded” if warranted. Decision at *3; J.A. 1038–39. On 

June 21, 2018, nearly seven months after Richardson’s retirement, the Acting Assistant Secretary of the Army 

(Manpower and Reserve Affairs) (“the Assistant Secretary”) rejected the ABCMR’s recommendation and denied 

2 J.A. refers to the Joint Appendix. 

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4 RICHARDSON v. US

Richardson’s requests under 10 U.S.C. § 1552. Decision at 

*3; J.A. 1036.

On January 27, 2020, Richardson filed his complaint in 

the Claims Court under the Military Pay Act, 37 U.S.C. 

§ 204. Decision at *4. He requested reinstatement to the 

Army at the rank of CW2 with back pay and benefits, removal of the GOMOR, adverse OER, and titling records, 

and amendments of the CID investigation record to “unfounded.” Id.; J.A. 1026–27. The case was voluntarily remanded to the Assistant Secretary to issue a new decision, 

which again rejected the ABCMR’s recommendation and 

denied Richardson’s requests. Decision at *4; J.A. 

1030–33. 

Following remand, the parties filed dispositive crossmotions. Decision at *4. The Claims Court dismissed Richardson’s claim for reinstatement and promotion with back

pay for failure to state a claim because he failed to sufficiently allege that his retirement was involuntary. Id. at 

*11. Specifically, the Claims Court held that Richardson 

failed to allege facts that would satisfy any of the elements 

of the test for involuntariness under Carmichael v. United 

States, 298 F.3d 1367 (Fed. Cir. 2002). Id. at *7–11. The 

Claims Court also dismissed his equitable requests for correction of his military records for a lack of subject matter 

jurisdiction. Id. at *5–6. Richardson timely appealed and 

we have jurisdiction under 28 U.S.C. § 1295(a)(3).

DISCUSSION

We review a grant of a motion to dismiss for failure to 

state a claim de novo. Prairie Cty., Mont. v. United States, 

782 F.3d 685, 688 (Fed. Cir. 2015). We take “all factual 

allegations in the complaint as true and construe the facts 

in the light most favorable to the non-moving party.” Jones 

v. United States, 846 F.3d 1343, 1351 (Fed. Cir. 2017). 

Granting a motion to dismiss for failure to state a claim “is 

appropriate when the facts asserted by the claimant do not 

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RICHARDSON v. US 5

entitle him to a legal remedy.” Lindsay v. United States, 

295 F.3d 1252, 1257 (Fed. Cir. 2002).

Richardson’s claim for reinstatement and promotion 

with back pay is predicated on his allegedly wrongful retirement. To state a claim for relief under the Military Pay 

Act, he must establish that his retirement was involuntary. 

See Metz v. United States, 466 F.3d 991, 1000 (Fed. Cir. 

2006) (holding that voluntariness is part of the merits of a 

case under the Military Pay Act rather than a jurisdictional concern). Retirement is generally presumed voluntary; however, Richardson may rebut that presumption if 

he can “demonstrate that: (1) he involuntarily accepted the 

terms of the government; (2) circumstances permitted no 

other alternative; and (3) said circumstances were the result of the government’s coercive acts.” Carmichael, 

298 F.3d at 1372. Richardson must allege facts establishing all three elements to rebut the presumption of voluntariness.

We begin and end with the third element for rebutting 

the presumption of voluntariness. Richardson argues that

he sufficiently alleged the third element of the Carmichael

test because the Assistant Secretary’s decision to reject the 

unanimous recommendation of the ABCMR was a coercive 

act. He argues that a plaintiff may demonstrate that government conduct was coercive by establishing that it was 

“wrongful.” App. Br. at 33 (citing Roskos v. United States, 

549 F.2d 1386, 1389–90 (Ct. Cl. 1977)). He goes on to argue 

that the Assistant Secretary’s decision to reject the recommendation of the ABCMR violated Army Regulation 15-

185, ¶ 2-13, which makes decisions “unanimously agreed to 

by the ABCMR panel” final. App. Br. at 34. According to 

Richardson, because the Assistant Secretary’s action allegedly violated an Army regulation, it was wrongful and 

therefore a coercive act under Carmichael. Id.

Richardson’s reliance on the “wrongful” language from 

Roskos is taken out of context. In Roskos, the Court of 

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6 RICHARDSON v. US

Claims stated that “[a]n action is not voluntary if it is produced by government conduct which is wrongful.” Roskos, 

549 F.2d at 1389–90. It is insufficient for the government 

conduct merely to be wrongful; the plaintiff’s actions, i.e.,

his retirement, must be the product of that government action. See id. (finding that the earlier unauthorized reassignment of Roskos directly caused his later retirement).

Richardson does not plead any facts, even taken as true 

that would satisfy this element because his retirement 

could not plausibly have been the product of the Assistant 

Secretary’s decision. The facts alleged show the Assistant 

Secretary’s decision occurred long after Richardson’s decision to retire. He applied for early retirement on April 5, 

2017, which was granted effective on November 30, 2017. 

Decision at *4. He did not petition the ABCMR until May 

22, 2017, approximately seven weeks after he applied for 

earlier retirement. Id. The Assistant Secretary’s first decision that reviewed and rejected the recommendations of 

the ABCMR did not occur until June 21, 2018, J.A. 1036, 

and the remand decision did not occur until August 25, 

2020, J.A. 1030. Richardson has therefore failed to allege 

facts that could establish the third element of the Carmichael test, that the circumstances of his retirement were 

the result of the government’s coercive acts. See Carmichael, 298 F.3d at 1372. That is true regardless whether

or not the Assistant Secretary violated Army Regulation 

15-185, ¶ 2-13 by rejecting a unanimous recommendation 

of ABCMR. We note that as early as 1975, our predecessor 

court recognized that “[t]his court has repeatedly upheld 

the voluntariness of resignations where they were submitted to avoid threatened termination for cause.” Christie v. 

United States, 518 F.2d 584, 588 (Ct. Cl. 1975).

Because Richardson must allege facts that could plausibly establish each element of the Carmichael test, we 

need not address his arguments for the other two elements. 

The Claims Court therefore correctly determined that his 

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RICHARDSON v. US 7

retirement was voluntary and dismissed his claims under 

the Military Pay Act for failure to state a claim. 

We next will address the Claims Court’s dismissal of 

his remaining claims for a lack of subject matter jurisdiction. We review grant of a motion to dismiss for a lack of 

subject-matter jurisdiction de novo and accept well-pleaded 

factual allegations as true. Inter-Tribal Council of Ariz., 

Inc. v. United States, 956 F.3d 1328, 1338 (Fed. Cir. 2020). 

The plaintiff has the burden to establish subject-matter jurisdiction by a preponderance of the evidence. Id. at 1337.

The Tucker Act grants the Claims Court jurisdiction 

over claims for the correction of military records only if 

they are “incident of and collateral to” an award of money 

damages. 28 U.S.C. § 1491(a)(2); Voge v. United States, 

844 F.2d 776, 781 (Fed. Cir. 1988). If there is no reason to 

consider the requests for equitable relief when deciding the 

claim for money damages, the Claims Court lacks subject 

matter jurisdiction over those requests. Voge, 844 F.2d at 

781. 

To have subject matter jurisdiction over Richardson’s

claims for correction of his military records, they must be 

necessary for the court to consider to resolve his claim for 

money damages under the Military Pay Act. He argues 

that the Claims Court has jurisdiction over those requests 

because there is a nexus between those requests and his 

claim for back pay. App. Br. at 29. According to Richardson, the titling action started a chain of events that led to 

the GOMOR, the adverse OER, and the eventual denial of 

his promotion and resulting separation. Id. However, he 

does not allege that the titling action and subsequent derogatory administrative filings automatically triggered his 

non-promotion and subsequent separation, and the merits 

of a decision to promote members of the military is not subject to judicial review. Lindsay, 295 F.3d at 1257. Furthermore, as discussed above, it was unnecessary to consider 

his requests for correction of his military record to resolve 

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8 RICHARDSON v. US

his back pay claim stemming from his allegedly wrongful 

retirement because his retirement was voluntary. Those 

requests therefore have no bearing on the government’s obligation to pay damages for his claim under the Military 

Pay Act. See Voge, 844 F.2d at 781 (determining that “review of [plaintiff’s] service records cannot be justified as ‘incident of and collateral to’” an award of money damages 

when it is unnecessary to consider them to resolve the monetary claim). The Claims Court therefore properly dismissed his requests for correction of his military records for 

a lack of subject matter jurisdiction. 

CONCLUSION

We have considered Richardson’s remaining arguments and find them unpersuasive. For the foregoing reasons, we affirm. 

AFFIRMED

COSTS

No costs.

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