# In the United States Court of Federal Claims

No. 17

- 305 (Filed: June 15, 2022 )

**************************************

RYAN PIERRE TURNER

, *

* Plaintiff, *

*

v. *

* THE UNITED STATES, *

*

Defendant. *

************************************** 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 th e Court transfer his

case back to the Unite d States District Court for the Southern District of Alabama (“District Court”)

. The government moves to dismiss his complaint for lack of subject

- matter jurisdiction

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

and requests that the Court deny his motion s 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

- manda ting source of law. T he

Court also finds that a llowing Mr. Turner to amend his complaint would be futile since th is Court lacks jurisdiction over tort claim s and that t ransferring his complaint to the District Court

would not be appropriate because the District Court also lacks jurisdiction over his tort claim s

. Accordingly, the Court GRANTS the government’s motion to dismiss and DENIES Mr.
Turner’s motion s to a mend his complaint and transfer his case.2

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 term ination. 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. T he District Court also dismissed his three tort

claims as barred under the Feres doctrin e. 1 Id

. at *1

- *2 (citing United States v. Feres , 340 U.S. 135, 146 (1950))

. H is 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 transfer red 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

. Th e Court stay ed proceedings to facilitate multiple reviews by the BCNR

, see Order, May 1, 2017, ECF No. 7, which ultimately yielded the following rel ief 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 Sel ection Board (ESRB); (4) full separation pay; (5) reinstatement in the United States Marine Corps; and (6) Correction of his Primary M ilitary

O ccupation S pecialty (“PMOS”) and recommendation for promotion consideration by an ESRB for Gunnery Sergeant. 2 See 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, 202 1 , 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, EC F N o. 57. After the parties filed R CFC 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

, s ee Pl.’s Mot. for Leave to Amend, ECF No. 68 [hereinafter Pl.’s Mot.] . T he government moved to dismiss his complaint for lack of subject

- ma tter 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 Sept ember 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 Rep ort , ECF No. 33.3

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 th e 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 go vernment’s actions related to his medical

treatment made his wrongful termination worse. See id

. at 4

- 5 ; s ee also Transf. Compl. ¶ 15 (“Plaintiff requests triple back pay for the hardships this has caused him”)

. However, d espite Mr.

Turner’s contentions

, this Court lacks jurisdiction to consider his remaining claim for “treble damages” because he fails to cite a mone y

- 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 Cons titution, 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 establi sh 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 l ack 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 identif y 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. Unit ed States , 333 F.3d 1295, 1303 (Fed. Cir. 2003)

. The Military Pay Act establishes entitlements to basic pay by uniformed service members . 37 U.S.C. § 204(a). For a4

wrongful termination claim under the Military Pay Act, a plaintiff allege s that, because of t he 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,

t he 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, M r. 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, t he Court must determine “the true nature of the claim” and not simply accept the party’s assertion that the Court possess es jurisdiction. See Livingston v.

Derwinski , 959 F.2d 224, 225 (Fed. Cir. 1992) (citations omitted). Mr. Turner conced es 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 difficul ties directly related to the wrongful termination

. ” Id. at 3. While he attempts to frame his claim as a n 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

. S ee 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 )

. T he Court sympathizes with the hardships that Mr.

Turner has endure d in connection with his wrongful termination

, but th e Court cannot exercise jurisdiction over his claim for “treble damages” because it is founded on a tort claim

.

Consequently, t his Court cannot retain jurisdiction over Mr. Turner’s c ase 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 controver sy 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. Turne r all the relief to which he is entitled for his wrongful termination claim, and his remain ing claim for “tr eble damages ” is

outside of this Court’s jurisdiction. Therefore, t he government’s motion to dismiss is

GRANTED

. 3

3 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. Se e 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, i t 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

.5

B. Mr. Turner’s Motion s 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 c ourt, 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

surv ive a motion to dismiss

. See Kemin Foods, L.C. v. Pigmentos Vegetales Del Centro S.A. de

C.V. , 464 F.3d 1339, 135 4

- 55 (Fed. Cir. 2006) (“When a party faces the possibility of being denied leave to amend on the ground of futility, that party must . . . prof fer sufficient facts supporting the amended pleading that the claim could survive a dispositive pretrial motion.”)

. Mr. Turner seeks to add tort claims to his complain t . Pl.’s Mot. at 3 (“ An amended complaint in the present action must include torts”). As discussed supra , it is well

- established that t ort 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.

T urn er’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

- the

case 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 wo uld 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)).

T he D istrict C ourt 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

. T his understanding of the NDAA is incorrect. T he NDAA empower ed 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 require d 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, 2 021

, establish the administrative claims process, equipped with an appeal

mechanism

. 32 C.F.R. § 45 (2021). Relevant to this case, s ection 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.6

[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, c ontrary to Mr. Turner’s contention,

the NDAA does not affect the applicability of the Feres doctrine to his tort claim s nor does it provide the District Court with jurisdiction to hear such claims

. Since Mr. Turner’s tort claim s still could not have been brought originally in the District Court

, his motion to transfer must be

denied because it fa ils 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 WITH OUT PREJUDICE for lack of subject

- matter jurisdiction under RCFC 12(b)(1). T he Clerk is DIRECTED to enter JUDGMENT

.

IT IS SO ORDERED.

s/ Thompson M. Dietz THOMPSON M. DIETZ, Judge