In the United States Court of Federal Claims

No. 17-305

(Filed: June 15, 2022)

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RYAN PIERRE TURNER, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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Motion to Dismiss; RCFC 12(b)(1); 

Motion to Amend; Motion to Transfer; 

Military Pay Act; Mootness.

Joseph Fellows, Mobile, AL, counsel for Plaintiff.

Mikki Cottet, U.S. Department of Justice, Civil Division, Washington, DC, counsel for 

Defendant.

OPINION AND ORDER

DIETZ, Judge

After the Board for the Correction of Naval Records (“BCNR”) granted relief for his 

wrongful termination claim, Plaintiff, Ryan Pierre Turner, argues that he is entitled to “treble 

damages” because of the government’s actions. Mr. Turner also requests that the Court grant him 

leave to amend his complaint to include tort claims and, alternatively, that the Court transfer his 

case back to the United States District Court for the Southern District of Alabama (“District 

Court”). The government moves to dismiss his complaint for lack of subject-matter jurisdiction

pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (“RCFC”)

and requests that the Court deny his motions to amend his complaint and transfer his case. 

The Court finds that Mr. Turner’s claim for “treble damages” falls outside of this Court’s 

jurisdiction because it is founded on a tort claim, not a money-mandating source of law. The 

Court also finds that allowing Mr. Turner to amend his complaint would be futile since this

Court lacks jurisdiction over tort claims and that transferring his complaint to the District Court

would not be appropriate because the District Court also lacks jurisdiction over his tort claims. 

Accordingly, the Court GRANTS the government’s motion to dismiss and DENIES Mr. 

Turner’s motions to amend his complaint and transfer his case.
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I. BACKGROUND

Mr. Turner was honorably discharged from active duty in the United States Marine Corps 

on July 30, 2014. April 19, 2021, BCNR Decision at 1, ECF No. 56. Following his discharge, 

Mr. Turner filed a complaint in the District Court alleging five claims against the United States 

Marine Corps: (1) racial discrimination, (2) negligence, (3) wantonness, (4) libel, and (5) 

wrongful termination. See Turner v. United States, No. 15-0666-KD-B, 2016 WL 7404865, at *1 

(S.D. Ala. Dec. 21, 2016). The District Court dismissed his racial discrimination claim because 

neither Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq. nor Title VII of the 

Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. are applicable to the United States Marine 

Corps. See Turner, 2016 WL 7404865, at *1. The District Court also dismissed his three tort 

claims as barred under the Feres doctrine.1Id. at *1-*2 (citing United States v. Feres, 340 U.S. 

135, 146 (1950)). His wrongful termination claim was transferred to this Court because this 

Court possesses exclusive jurisdiction under the Tucker Act over Military Pay Act claims over 

$10,000. Id. at *2-3; 28 U.S.C. § 1491(a)(1).

After his case was transferred to this Court, Mr. Turner filed a transfer complaint seeking

“just compensation from the United States for his wrongful termination.” Transfer Compl. ¶ 1, 

ECF No. 4. The Court stayed proceedings to facilitate multiple reviews by the BCNR, see Order, 

May 1, 2017, ECF No. 7, which ultimately yielded the following relief for Mr. Turner: (1) 

removal of all derogatory documents from his Official Military Personnel File (OMPF); (2) 

restoration of his rank with all associated back pay and allowance; (3) promotion consideration 

by a FY14 Staff Sergeant Enlisted Remedial Selection Board (ESRB); (4) full separation pay; (5) 

reinstatement in the United States Marine Corps; and (6) Correction of his Primary Military 

Occupation Specialty (“PMOS”) and recommendation for promotion consideration by an ESRB 

for Gunnery Sergeant.2See July 5, 2017, BCNR Decision, ECF No. 12; Sept. 5, 2017, BCNR 

Decision, ECF No. 14; Dec. 5, 2017, BCNR Decision, ECF No. 18; Apr. 19, 2021, BCNR 

Decision, ECF No. 56.

Following the BCNR decision on April 19, 2021, the government filed a status report 

stating that “Mr. Turner has now received all relief that the Court could grant him” and the 

government “respectfully request[s] a status conference with the Court to determine next steps.” 

Def.’s Status Report, ECF No. 57. After the parties filed RCFC 52.2(e) notices, the Court 

ordered Mr. Turner to file for leave to amend his complaint and, in response, for the government 

to file a motion to dismiss. Order, Sept. 1, 2021, ECF No. 67. Mr. Turner subsequently moved 

for leave to amend his complaint, or, in the alternative, have the Court transfer his case back to 

the District Court, see Pl.’s Mot. for Leave to Amend, ECF No. 68 [hereinafter Pl.’s Mot.]. The 

government moved to dismiss his complaint for lack of subject-matter jurisdiction. See Def.’s 

Mot. to Dismiss, ECF No. 69 [hereinafter Def.’s Mot.]. Based on a review of the briefing, the 

1 The Feres doctrine holds that “the [g]overnment is not liable under the Federal Tort Claims Act for injuries to 

servicemen where the injuries arise out of or are in the course of activity incident to service.” United States v. Feres, 

340 U.S. 135, 146 (1950).

2 As of September 16, 2019, Mr. Turner has been reinstated in the United States Marine Corps and is stationed at 

Camp Lejeune, North Carolina in the Wounded Warrior Battalion. Pl.’s Status Report, ECF No. 33.
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Court has determined that oral argument is not needed and that the remaining issues are ripe for 

decision. 

II. DISCUSSION

A. The Government’s Motion to Dismiss

Mr. Turner does not challenge the government’s position that he has been granted all the 

relief that he may be granted by the BCNR for his wrongful termination claim. See Pl.’s Mot. at 

2 (stating that “[b]ackpay and correction of military records are a good start, and [he] is 

thankful”); see also id. at 4 (“Related to the [wrongful termination claim], there has been some 

relief given by the remand to the BCNR. It has provided Plaintiff Turner a sliver of justice that 

his records have been corrected and that he has been granted re-enlistment and some back pay 

and some benefits.”). Instead, he argues that remand to the BCNR has not afforded him a 

satisfactory basis for disposition of his case because the Court “has a way to grant [him] more 

relief than the BCNR has granted him.” Id. at 3. Specifically, he argues that the Court can award 

him “additional treble damages” because the government’s actions related to his medical 

treatment made his wrongful termination worse. See id. at 4-5; see also Transf. Compl. ¶ 15 

(“Plaintiff requests triple back pay for the hardships this has caused him”). However, despite Mr. 

Turner’s contentions, this Court lacks jurisdiction to consider his remaining claim for “treble 

damages” because he fails to cite a money-mandating source of law that grants this Court 

authority to award such treble damages, and his claim is based on alleged medical negligence—a

tort claim that falls outside of this Court’s jurisdiction.

This Court is a court of limited jurisdiction. Brown v. United States, 105 F.3d 621, 623 

(Fed. Cir. 1997). This Court’s jurisdiction is defined by the Tucker Act, which waives the 

sovereign immunity of the United States for “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, or for liquidated or unliquidated 

damages in cases not sounding in tort.” 28 U.S.C. § 1491(a) (2018). The Tucker Act, however, is 

“merely a jurisdictional statute and does not create a substantive cause of action.” Rick’s 

Mushrooms Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir. 2008) (citing United 

States v. Testan, 424 U.S. 392, 398 (1976)). To establish this Court’s jurisdiction, a plaintiff must 

“identify a substantive source of law that creates the right to recovery of money damages against 

the United States.” Id. (citing United States v. Mitchell, 463 U.S. 206, 216 (1983)). A motion to 

dismiss for lack of subject-matter jurisdiction challenges the court’s “general power to adjudicate 

in specific areas of substantive law[.]” Palmer v. United States, 168 F.3d 1310, 1313 (Fed. Cir. 

1990); see also RCFC 12(b)(1). A plaintiff must establish jurisdiction by a preponderance of the 

evidence. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Reynolds v. Army & Air 

Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). 

Mr. Turner fails to identify a money-mandating source of law that grants this Court 

authority to award treble damages. Wrongful termination claims by members of the military 

typically invoke the Military Pay Act as the money-mandating source of law. 37 U.S.C. § 204; 

Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003). The Military Pay Act 

establishes entitlements to basic pay by uniformed servicemembers. 37 U.S.C. § 204(a). For a 
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wrongful termination claim under the Military Pay Act, a plaintiff alleges that, because of the

wrongful termination, the plaintiff “is entitled to money in the form of pay that the plaintiff

would have received but for the unlawful discharge.” Martinez, 333 F.3d at 1303. If successful, 

the monetary relief to which the plaintiff is entitled under the Military Pay Act is the amount of 

pay that the plaintiff would have received had the wrongful termination not occurred. Id. In this 

case, Mr. Turner admits, and the record reflects, that he has received all the back pay owed to 

him. Pl.’s Mot. at 2; BCNR Decision, Apr. 19, 2021. Beyond his recovery of the back pay to 

which he is entitled, the Military Pay Act does not provide authority for this Court to award

treble damages in the form of triple back pay. See 37 U.S.C. § 204. 

Mr. Turner contends that this Court has jurisdiction to grant “treble back pay” because 

this claim should be viewed “through the scope” of his wrongful termination claim, not as a 

separate tort claim. See Pl.’s Mot. at 4. The Court does not agree. When analyzing a claim for 

subject-matter jurisdiction, the Court must determine “the true nature of the claim” and not 

simply accept the party’s assertion that the Court possesses jurisdiction. See Livingston v. 

Derwinski, 959 F.2d 224, 225 (Fed. Cir. 1992) (citations omitted). Mr. Turner concedes that this 

Court does not have jurisdiction over tort claims, but he argues that he is entitled to treble 

damages because his “wrongful termination was made drastically worse . . . than it would have

been for a typical wrongfully terminated Plaintiff because of the aggravating factor of an 

undiagnosed (by Defendant United States) traumatic brain injury.” Pl.’s Mot. at 4. He also claims 

that two separate knee injuries “add to the extraordinary difficulties directly related to the 

wrongful termination.” Id. at 3. While he attempts to frame his claim as an extension of his 

wrongful termination claim, see id. at 7, his claim for “triple back pay” is based on alleged

medical negligence, which is a tort claim. See Utley v. United States, 813 Fed.Appx. 601, 603 

(Fed. Cir. 2020) (citing Rick's Mushroom Serv., 521 F.3d at 1343) (“A claim for professional 

negligence is a tort claim.”). It does not matter that he frames his claim under non-tort law

because “the essence of [his] claim lies in tort.” Cottrell v. United States, 42 Fed. Cl. 144, 149 

(1998) (citing Brown, 105 F.3d at 623). The Court sympathizes with the hardships that Mr. 

Turner has endured in connection with his wrongful termination, but the Court cannot exercise

jurisdiction over his claim for “treble damages” because it is founded on a tort claim.

Consequently, this Court cannot retain jurisdiction over Mr. Turner’s case because it has 

been rendered moot. A case may be deemed moot “[w]hen, during the course of litigation, it 

develops that the relief sought has been granted or that the questions originally in controversy 

between the parties are no longer at issue[.]” Chapman Law Firm Co. v. Greenleaf Constr. Co., 

Inc., 490 F.3d 934, 939 (Fed. Cir. 2007). The BCNR granted Mr. Turner all the relief to which he 

is entitled for his wrongful termination claim, and his remaining claim for “treble damages” is 

outside of this Court’s jurisdiction. Therefore, the government’s motion to dismiss is 

GRANTED.

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In his motion, Mr. Turner states that his original complaint “did ask for attorney’s fees.” See Pl.’s Mot. at 4. The 

Equal Access to Justice Act (“EAJA”) permits a party to file a motion to recover attorney fees within thirty days of a 

final judgment. See 28 U.S.C. § 2412(d)(1)(A); see Impresa Construzioni Geom. Domenico Garufi v. United States, 

531 F.3d 1367, 1369 (Fed. Cir. 2008). A “final judgment” means a judgment rendered by a court that terminates the 

civil action for which EAJA fees may be received. Melkonyan v. Sullivan, 501 U.S. 89, 96 (1991). Therefore, it 

would be premature for the Court to consider Mr. Turner’s request for attorney fees prior to the entry of judgment. 

Mr. Turner is not precluded from filing a motion for attorney fees at the appropriate time. 
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B. Mr. Turner’s Motions to Amend and Transfer his Complaint

The Court will not grant Mr. Turner leave to amend his complaint to add tort claims

because such an amendment would be futile. RCFC 15(a) governs amendments to pleadings. It 

states that “a party may amend its pleading only with the opposing party’s written consent or the 

court’s leave” and that “[t]he court should freely give leave when justice so requires.” RCFC 

15(a)(2). A court, however, may deny a motion to amend a complaint if the amendment would 

be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962). An amendment is futile if it would not 

survive a motion to dismiss. See Kemin Foods, L.C. v. Pigmentos Vegetales Del Centro S.A. de 

C.V., 464 F.3d 1339, 1354-55 (Fed. Cir. 2006) (“When a party faces the possibility of being 

denied leave to amend on the ground of futility, that party must . . . proffer sufficient facts 

supporting the amended pleading that the claim could survive a dispositive pretrial motion.”).

Mr. Turner seeks to add tort claims to his complaint. Pl.’s Mot. at 3 (“An amended complaint in 

the present action must include torts”). As discussed supra, it is well-established that tort claims 

are outside of this Court’s jurisdiction. Brown, 105 F.3d at 623 (citing Keene Corp. v. United 

States 508 U.S. 200, 214 (1993)); see also 28 U.S.C. § 1491(a)(1) (excluding claims “sounding 

in tort” from this Court’s jurisdiction). Because this Court lacks jurisdiction over tort claims, Mr. 

Turner’s proposed amendment to add tort claims to his complaint would not survive a motion to 

dismiss and, thus, would be futile.

Acknowledging that this Court would lack jurisdiction over his tort claims, Mr. Turner

alternatively argues that his tort claims could be heard if his case were retransferred back to the 

District Court. See Pl.’s Mot. at 4. However, the Court finds that transfer of this case is not 

appropriate. Transfer of a case requires that: (1) the transferor court lacks jurisdiction; (2) the 

transfer is in the interest of justice; and (3) the case could have been brought originally in the 

transferee court. See 28 U.S.C. § 1631.4 Further, once a case has been transferred, law-of-thecase considerations disfavor retransfer of the case back to the original court except in 

“exceptional circumstances” such as where the initial decision was “clearly erroneous and would 

work a manifest injustice.” Rodriguez v. United States, 862 F.2d 1558, 1560 (Fed. Cir. 1988) 

(quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988)).

The District Court dismissed Mr. Turner’s tort claims as barred by the Feres doctrine. 

Turner, 2016 WL 7404865, at *1-2 (citing Feres, 340 U.S. at 146). Mr. Turner argues that the 

Feres doctrine no longer bars his claims because the National Defense Authorization Act for 

Fiscal Year 2020 (“NDAA”), codified at 10 U.S.C. § 2733 (2019), allows for claims of medical 

negligence against the government. Pl.’s Mot. at 6; Pl.’s Reply at 6, ECF No. 72. This

understanding of the NDAA is incorrect. The NDAA empowered the Secretary of Defense to 

establish an administrative claims process to “allow, settle, and pay a claim against the United 

States for personal injury or death incident to the service of a member of the uniformed services 

that was caused by the medical malpractice of a Department of Defense health care provider.” 10 

U.S.C. § 2733(a). It required that the Secretary of Defense prescribe regulations to implement an

administrative claims process. 10 U.S.C. § 2733(f)(1). Such regulations, which went into effect 

on July 19, 2021, establish the administrative claims process, equipped with an appeal 

mechanism. 32 C.F.R. § 45 (2021). Relevant to this case, section 45.14 states:

4 Mr. Turner incorrectly cites 28 U.S.C. § 1404, see Pl.’s Mot. at 5, which authorizes a district court to transfer a 

civil case, not this Court.
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[T]he adjudication and settlement of a claim under this part is final and conclusive

and not subject to review in any court. Unlike the [Federal Tort Claims Act], the 

Military Claims Act, which provides the authority for this part, does not give 

Federal courts jurisdiction over claims.

32 C.F.R. § 45.14 (2021) (internal citations omitted). Thus, contrary to Mr. Turner’s contention, 

the NDAA does not affect the applicability of the Feres doctrine to his tort claims nor does it 

provide the District Court with jurisdiction to hear such claims. Since Mr. Turner’s tort claims

still could not have been brought originally in the District Court, his motion to transfer must be 

denied because it fails the third requirement of 28 U.S.C. § 1631.

III. CONCLUSION 

For the reasons above, the government’s motion to dismiss is GRANTED. Mr. Turner’s 

motion to amend is DENIED. Mr. Turner’s motion to transfer is DENIED. This case is 

DISMISSED WITHOUT PREJUDICE for lack of subject-matter jurisdiction under RCFC 

12(b)(1). The Clerk is DIRECTED to enter JUDGMENT. 

IT IS SO ORDERED.

s/ Thompson M. Dietz 

THOMPSON M. DIETZ, Judge