# RIGINAL 3Jn tbe Wniteb $tates QCourt ofjf 

# eberal QCiaints FILED

No. 16-560 

## c FEB

- 9 

### 2017 (Filed: February 9, 2017) U.S. COURT OF 

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DANIEL CHASE HARIUS Plaintiff,



### v.

THE UNITED STATES, Defendant.


### * * * * * * * * * * * * * * * * * * * * FEDERAL CLAIMS

Military Pay Act, 37 U.S.C. § 204; AbsentWithoutLeave("AWOL"); 3 7 U.S.C. 

### § 503; Absence Excused as Unavoidable; DOD Financial Management Regulation; Pretrial Confinement; SubsequentConviction; Due Process; Jurisdiction.

Daniel 

### C. H arris, pro se, plaintiff.

Meen Gue Oh, Trial Attorney, United States Department ofJustice, Civil Division, Commercial LitigationBranch, Washington, DC; with whom
was Benjamin 

### C. Mizer, Principal Deputy Assistant Attorney General,Robert E. Kirschman, Jr., Director,DouglasMickle,AssistantDirector,for defendant. LT Zachary Dembo, United States Navy, Office of the Judge Advocate General, ofcounsel.

OPINION
BRUGGINK, Judge.

This is a militarypay case in whichplaintiffseeks to recoverbackpay for the period of time during his civilian pre-trial confinement. Pending is defendant's motion to dismiss for failure to state a claim and lack of jurisdiction. Themotionis fully briefed; oral argumentis unnecessary. Plaintiff has established jurisdiction for his back pay claim, which is based on a money-mandatingfederalpay statutebuthas failed to establishjurisdictionon a separate claim challengingthejurisdiction ofthe civilian courtto prosecute
a military member. The case raises the question ofwhether a serviceman held

### in confinement prior to conviction is absent without leave, or ifinstead, his absence from duty is excused. Becauseplaintiffs absence from duty was not excused as unavoidable and becausehewas affordeddueprocess, he has failed to state a claim for back pay.
BACKGROUND
Plaintiffhas been an officer in the United States Navy since May 2005. He was arrested on November 12, 2013, for various sexual offenses involving minors. Two days after his arrest, the Navy withheld his pay pending the outcome of his criminal proceedings. On March 9, 2015, plaintiff was convicted on 31 of32 criminal counts by ajury in the United States District Court for the EasternDistrict ofVirginia. Hewas sentenced on July 13, 2015, to 50 years in prison and supervised release for the remainder of his life. Following the verdict, on April 25, 2016, the Navy recommended to a Board of Inquiry that plaintiff be separated with an "Other Than Honorable" discharge. Plaintiffhas not yet been discharged.

On May 9, 2016, plaintiff filed a complaint in this court seeking to recover back pay for the period of time from his arrest to the present. Defendant moved to dismiss on July 11, 2016 pursuant to Rules 12(b)(l) and 12(b)(6) ofthe Rules ofthe United States Court ofFederal Claims ("RCFC"). On October 3, 2016, plaintifffiled a motion for leave to amend his complaint to remove from his pay claim the period of time after conviction. The proposed amended complaint also contained substantive responses to defendant's motion to dismiss. Because the proposed amendment only narrowed plaintiffs claim, the court ordered that there was no prejudice in denying plaintiffs motion to amend his complaint and also deemed the proposed amended complaint to be the response to defendant's motion to dismiss.
DISCUSSION
Defendant moves to dismiss for failure to state a claim upon which reliefmay be granted and for lack ofsubject matterjurisdiction over certain elements ofplaintiffs back pay claim. Defendant also moves to dismiss for lack of subject matter jurisdiction over plaintiffs due process claim challenging thejurisdiction ofa civilian court to prosecute a military service member.

2I . Statutory Claim For Back Pay

In deciding a motion to dismiss under RFCF 12(b)(6), the court
assumes the truth ofall ofthe factual allegations in the complaintto determine whether it states a claim upon whichreliefmay be granted as a matter oflaw. 

### See Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). The allegations ofthe complaint "mustbeenough to raise arightto reliefabove the speculative level" in order to "state a claim to reliefthat is plausible on its face." 

### Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); 

### see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, "[l]egal conclusions, deductions, or opinions couched as factual allegations are not given a presumption oftruthfulness."

### Blaze Constr., Inc. v. UnitedStates, 27 Fed. Cl. 646, 650-651 (1991). Thus, ifthe allegations are plausible and not otherwise legally insufficient, a complaint will survive a motion under RCFC 12(b)(6).

The Military Pay Act provides that a member ofa uniformed service who is on active duty is "entitled to the basic pay ofthepay gradeto which [he is] assigned." 37 U.S.C. § 204(a) (2012). A service member is not entitled to pay, however, when he or she is "AbsentWithout Leave (AWOL)." 37 U.S.C. § 503(a) ("A member ofthe

... Navy,

...who is absent without leave or over leave, forfeits all pay and allowances from the period ofthat absence, unless itis excusedas unavoidable."). DepartmentofDefenseFinancialManagement Regulation ("DOD Regulation"), Volume7A, Chapter 1,Tables 1-12 and 1-13 lists various reasons for AWOL status and whether those circumstances are excused as unavoidable. Table 1-12, Rule 6 explains that "when a member is absent from duty in confinement by civil authorities and the absence is not excused as unavoidablethen the member is not entitled to pay and allowances, except for that part ofthe period that is covered by authorized leave, liberty,
or pass." DOD Regulation, vol. 7A, ch.1at63, Table 1-12, Rule 6 (2016).

Plaintiff does not challenge the application of 37 U.S.C. § 503(a) regardinghis AWOL status afterhis conviction. 

### See Matthew v. UnitedStates, 750 F.3d 1320, 1323 (Fed. Cir. 2014) (holdingthat aplaintiffwho is tried and convicted by civilian authorities and is in federal prison is absent from duty without leave, and his absence cannot be excused as unavoidable); 

### Lewis v. United States, 114 Fed. Cl. 682, 687 (2014) ("Section 503(a) is an insurmountable obstacle to [a] claim for back pay and allowances for any period during which the plaintiffwas incarcerated."). Rather, plaintiffurges that the period oftime he was confinedprior to his conviction, or sentencing,

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### be considered "excused as unavoidable" under the applicable regulations. 1 

### The parties cite different regulatory provisions to answer the question of whether plaintiffs pre-trial absence from service was excused.

Plaintiff argues that Table 1-12 treats a service member's absence duringpre-trial confinement as excused as unavoidable, thus making plaintiff entitled to full pay during his absence. Plaintiffcites DOD Regulation Table 1-12, Rule 5, which states that, iftheplaintiffis absent from duty because he is held in confinement by civil authorities and 

### the absence is excused as unavoidable, then he is entitled to otherwise proper credits of pay and allowances. DOD Regulation, vol. 7A, ch.I at 63, Table 1-12, Rule 5.
Defendant counters with DOD Regulation Table 1-13, Rule 6, which states that, ifa service member is absent from duty because he is confined by civil authorities and is tried and convicted, then his absence is not excused as unavoidable. DOD Regulation, vol. 7A, ch.I at 65, Table 1-13, Rule 6. Because plaintiff was subsequently tried and convicted, his pre-trial confinement was not excused and cannot support a claim for backpay, argues defendant.
Plaintiffrep lies thatRule 6ofTable 13 only applies afterthe conviction has taken place, i.e., it says nothing regarding his pretrial confinement. He pointsto the surroundingrules in theDODregulationsthatconcernthemselves with the ultimate disposition ofa service member's criminal case to argue that the context of these rules is for discerning a member's pay status postdisposition. He avers that the standard practice ofthe uniformed services is to pay a member until they are convicted or separated from service. 2

1 

### Plaintiff takes the position in his briefing that the relevant event is his sentencing rather than his conviction, but he refers generally to the period of time that he seeks compensation for as his "pretrial confinement."

2 

### Plaintiffcites three cases in support ofhis argumentthatpretrial confinement is treated as an excused absence. The first two cases are the Lewis 

### and Matthews 

### decisions cited above and relied on by the government in support of its argument that section 503 is controlling in these circumstances. In neither ofthose cases did the plaintiffs claim back pay for periods oftime prior to their convictions. Mr. Harris thus infers that this is because both ofthose plaintiffs must have been paid during their civil confinements prior to conviction; otherwise they would have claimed those periods in their
4We begin with Section 503 and its presumption that a service member who is absent without leave is not entitled to pay unless that absence is "excused as unavoidable." 37 U.S.C. § 503(a) (a service member who is AWOL "forfeits all pay and allowances from the periodofthatabsence,unless it is excused as unavoidable."). The DOD regulations provide for circumstances when a service member's absence is considered excused as unavoidable. Theprovisioncitedbyplaintiff, Rule 5 ofTable 1-12, states that, if a member absent from duty because he is "in confinement by civil authorities" and the "absence is excused as unavoidable (see Table 1-13)," then he "is entitled to otherwise proper credits ofpay and allowances." DOD Regulation, vol. 7A, ch. I at 63, Table 1-12, Rule 5. If, however, "the absence is not excused as unavoidable (see Table 1-13)," then the member is "not entitled to pay and allowances."Id. Rule 5 thus poses the question rather than
answers it and refers the reader to the answer, Table 1-13.

Table 1-13 is entitled "Rules for Determining Whether Absence is Unavoidable." Rules 1-10 ofthat table apply "when a member is absent from duty in confinementby civil authorities."Id. atTable 1-13, Rules 1-10. Eight ofthetencircumstancedescribed intheserules deal withtheultimate outcome ofa service member's criminal case. Rule 1concerns acquittal; Rule 2 covers charges dismissed or the member's death; Rule 3 deals with pretrial release and restitution made; Rule 4 applies when a member is granted bail and the trial is postponed indefinitely; Rule 5 concerns when the charges are dropped
or thejuryis hung. Rule 6, cited by defendant, deals withtrial and subsequent conviction. In thatcase, the absence "maynotbe excused as unavoidable." Id. at Rule 6. Rule 7 covers an appeal that does not result in an acquittal; Rule 8 states that when a member is discharged because of imprisonment or conviction, his absence is not excused; Rule 9 applies when the confinement results because offailure to obey a court order; and Rule 10 concerns those

respective complaints, argues plaintiff. In the third case, Paalan v. United States, 120 Fed. App'x 817 (Fed. Cir. 2005), the plaintiff claimed back pay only for theperiod ofconfinement afterhis courtmartial. Plaintiffinfers that he did not claim pre-court martial confinement back pay because the Navy paid him until he was court martialed, consistent with whatplaintiffargues is the Navy's usual practice. We have considered these decisions but find that
none support plaintiff's argument. They do not speak to the issue ofwhether
a service member's pre-conviction confinement is excused under 37 U.S.C. § 503.
5tried and found not guilty by reason ofinsanity (absence is excused). None of the rules treat civil confinement while awaiting trial as a separate classification, and thus they do not grant plaintiff cover for his absence prior to his conviction. Instead, Rule 6, the only circumstance listed that fits plaintiffscurrentsituation, drawsno distinctionbetweentheperiodbefore and after conviction. That is to say, given the fact that we now know plaintiffwas convicted, his absence turns out not to be excused. We need not speculate on what the outcome should be ifthe challenge is brought prior to ajudgment of acquittal or conviction. The way the rules are structured, it is sufficient to say that plaintiffcan point to no regulation that characterizes his pre-conviction status as an excused absence. He is thus unableto state a claim for which relief
can be granted for back pay under the Military Pay Act.

II. Constitutional Claims Apparently anticipating this outcome, plaintiff also challenges the application ofthe statutes and regulations as unconstitutional because they do not afford him due process. Plaintifffurther challenges thejurisdiction ofthe civilian court to convict him because he was a member of the military. Defendant has moved to dismiss both claims as outside of this court's jurisdiction.
TheTuckerActgives this court jurisdictionto "render judgmentagainst the United States founded eitheruponthe Constitution, orany ActofCongress
or any regulation ofan executive department, or upon ay express or implied contract with the United States

... in cases not sounding in tort." 28 U.S.C. § 1491(a)(l) (2012). The constitutional provision, statute, or regulation upon which the claim is based must be "money-mandating."" Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005). The Tucker Act itselfis "only
a jurisdiction statute; it does not create any substantive right enforceable against the United States for money damages." United States v. Testan, 424 U.S. 392, 398 (1976). This means that, in orderto invokejurisdictionunderthe Tucker Act, a claimant must be able to identify a "money-mandating" provision of law, regulation, or contract "affording [him] a right to money damages." Terran v. Sec 'v of Health andHuman Servs., 195 F.3d 1302, 1309 (Fed. Cir. 1999).

6A. Jurisdiction Over Claims ofDueProcess Violation Relatingto Back Pay

We begin with the due process claimrelating to plaintiffs entitlement to pay under the Military Pay Act. Plaintiff argues that, because he was presumed innocentwhile awaiting trial, the withholding ofhis pay duringthis period deprived him ofhis propertywithout due process oflaw in violation of the Fifth and Fourteenth Amendments. Defendantresponds that this courthas consistently held that it lacks jurisdiction over Fifth and Fourteenth Amendment due process claims. See LeBlanc v. UnitedStates, 50 F.3d 1025, 1028 (Fed. Cir. 1995) (holding that the Court ofFederal Claims does not have jurisdictionto hearclaims undertheFifthandFourteenthAmendmentbecause those are not money-mandating provisions of law). Although defendant's observation is correct, plaintiffs claim is not a naked assertion ofrights under those amendments as was the case inLeBlanc and other similarjurisdictional dismissals.

Where a plaintiff relies on a federal pay statute to establish his substantive right to damages, the alleged unconstitutional withholding ofthat pay is not outside ofthe TuckerAct'spurview. Kennedyv. UnitedStates, 5Cl. Ct. 792, 795 (1984) (finding jurisdiction when the plaintiff derived his substantive right from the pay statute coupled with his claim that he was deprived ofthat substantive right in violation ofhis First Amendment). Here, plaintiffrelies on the Military Pay Act as establishing a substantive right to damages under the Tucker Act. He argues that the application ofthe AWOL statute and implementing DODregulations run afoul ofthe Constitution's due process protections. There is a sufficient nexus between his alleged violation of Fifth and Fourteenth Amendment rights and the Military Pay Act to establishjurisdiction under the Tucker Act. See Holley v. United States, 124 F.3d 1462, 1466 (Fed. Cir. 1997).

B. Failure to State a Claim

We thus consider whether plaintiffs due process claim is legally deficient because it fails to state a claim that could entitle him to relief. Before reaching the question of whether such a claim withstands Rule 12(b)(6) scrutiny, we note that, due to the somewhat anomalous procedural history of this motion, we are technicallyraisingthis issuesuasponte. Plaintiffs original complaint asked for damages under the Military Pay Act from the moment of plaintiffs pretrial confinement until the present day because he has not yet

7been discharged. Defendantmoved to dismissthe complaintfor failure to state a claim, citing the application ofthe AWOL statute to plaintiffs claims. In response, plaintiffmoved to amend his complaint to reduce his claim to the period ofconfinement prior to his sentencing. The proposed complaint also containedsubstantive arguments in responseto defendant'smotion, such as the citation to Table 1-12 and the assertion ofdue process rights. In orderto avoid further delay in resolving the motion and because there was no prejudice to plaintiffin doing so, we deniedthe motionto amendthe complaintbutdirected the clerk's office to treat the filing as a response to defendant's motion to dismiss. Defendant then brought the jurisdictional challenges to the due process arguments in its reply briefbut did not challenge these new claims under Rule 12(b)(6). We allowed plaintiffto file a sur-reply to respond to those arguments. Normally, the court considers the issue ofwhether a complaint alleges
a claim for which the court can afford reliefupon a motion by a party. See RCFC 12(h)(2). By contrast, the issue of subject matterjurisdiction can be raised at any time, including by the court ofits own accord. RCFC 12(h)(3). The court may, however, under certain circumstances, raise the issue ofthe merits ofthe complaint sua sponte. See, e.g., Constant v. United States, 929 F.2d 654, 657 (Fed. Cir. 1991) (affirming a sua sponte dismissal for failure to state a claim). The test is whether "additional proceedings would enable the plaintiff to prove facts entitling him to prevail." New York Life Ins. Co. v. UnitedStates, 190 F.3d 1372, 1377 (Fed. Cir. 1999). Here, the issueswerewell ventilated by the parties' briefing, and defendant lost the opportunity to formally move under Rule 12(b)(6) on this claim due only to the court's own procedural order. We thus find it appropriate to raise the issue now because further proceedings will not enable plaintiffto prove facts that would entitle him to prevail.
Plaintiffargues that the withholding ofhis pay prior to conviction, a period duringwhich the accused is presumed innocent, without opportunity to be heard on the issue ofgarnishment violates the fundamental constitutional protection from the deprivation ofliberty andpropertywithout due process of law. Plaintiffcites Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), where the Supreme Court struck down a Wisconsin state statute that allowed for prejudgment garnishment ofwages when those wages were the subject of
a civil action for garnishment. The Courtheld that the automatic garnishment ofa person's wages prior to a decision on the merits violated the Fourteenth Amendment's due process protections. Id. at 341-42. Plaintiffalso cites Bell

8v. Wofjish, 441 U.S. 520 (1979), for the proposition that due process rights attach to actions that deprive confined persons ofliberty and property rights priorto conviction. Reading these two cases together, plaintiffargues thatthe Navycouldnotlegallyhave stoppedpayinghimpriorto his convictionwithout
some additional process being afforded. We disagree.

Plaintiff has confounded pretrial actions taken during a criminal proceedingby the forum prosecuting the crime with the administrative actions taken by the Navy concerning plaintiffs pay status. The Court in Bell v. Wofjish stated that accused persons cannot generally be deprived ofliberty or property prior to their conviction unless afforded probable cause and bail hearings. Bell, 441 U.S. at 535-36. Ifthe state affords that process and the accused remains detained, the only question is whether the conditions placed
on the accused's rights are too punitive or otherwise in violation ofthe law. Id.
Here, plaintiffdoes not question his pretrial confinement or the other conditionsplacedupon his liberty rights priorto his trial, norwould this be the court in which to assert such a challenge. The rights cited in Bell are thus not implicatedhere. The challenge is to the Navy's administrativewithholding of pay during his civilian confinement. There is no doubt that the Navy has the legal authority to do so pursuantto 37 U.S.C. § 503. See Matthews, 750 F.3d at 1323. The only question that remains is whether doing so without some smt of a hearing prior to conviction invokes the due process protections of the Constitution. It does not.
The law is clear that a service member's right to pay is statutorily grounded. Dock v. United States, 46 F.3d 1083, 1084 (Fed. Cir. 1995). It follows that conditions on this right to receive pay can be enacted by legislation and implementing regulation. Id. at 1088 ("Members have a statutory right to their pay, but that right is the creation ofCongress, and it is subject to the conditions Congress chooses to put upon it."). Section 503 reasonably conditions the right to receive pay on a service member's availability for duty. Ifthe service member is unavailable and not otherwise excused, that member is not entitled to pay. Plaintiffdoes not challenge that hewas AWOL duringhis civilian confinement. Thatlaw is settled. Matthews, 750 F.3d at 1323. The implementing DOD regulations list circumstances when an absence is excused. The fact that plaintiff does not, as explained above, fit under one ofthe categories excusing his absence-namely because he was subsequently tried and convicted-means that the Fifth and Fourteenth

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### Amendments are not implicated. See Thomas v. Cheney, 

### 925 F.2d 1407, 1412 n.5 (Fed. Cir. 1991) ("To require that every time the Army-basically acting in its capacity as an employer-makes a determination to 'dock' an employee's wages or benefits for inexcusable absence, a universe of procedural due process rights arises equal to that in a criminal proceeding, would turn due process on its head."). Unlike the Wisconsin statute at issue in Sniadach, 

### the DOD regulations do not operate to garnish pay without consideration ofthe underlyingmerits ofthecivilian criminal case. Plaintiffherewas subsequently found guilty. Hewas therefore not statutorily eligibleto receive pay duringhis detention. These allegations thus fail to state a claim upon which reliefcan be granted.
C. Plaintiffs Challenge to Civilian Jurisdiction
Plaintiffs final challenge is to thejurisdiction ofthe civilian court to prosecute him as a military service member. He asserts that suchjurisdiction
was a violation ofthe Sixth and Fourteenth Amendments. Defendant moves to dismiss this challenge for lack of jurisdiction. We agree.
This claim is independent of plaintiffs back pay claim and is not otherwise attendant to it. The Court of Federal Claims "does not have jurisdiction to review the decisions ofother district courts." Joshua 

### v. United States, 

### 17 F.3d 378, 380 (Fed. Cir. 1994). This includes review ofwhether a district court hasjurisdiction over a particular case. Further, it is well settled that this court "does not have jurisdiction to review and overturn criminal convictions."Anderson v. UnitedStates, 

### No. 15-6!4C, 2015 WL 3826239, at *2 (Fed. Cl. June 19, 2015). This claim must dismissed for lack of jurisdiction.

CONCLUSION

In sum,wehavejurisdictionoverboth of plaintiffsbackpay claims but lackjurisdiction over his challenge to being subjected to the civilian criminal justice system while a member ofthe armed services. Nevertheless, because plaintiffwas not entitled to pay during his pretrial civilian confinement, he fails to state a claim for which relief can be granted. Accordingly, the following is ordered:

1. 

### For good cause shown, plaintiffs motion to proceed in Jonna pauperis 

### is granted.

102. Defendant's motion to dismiss for lack of jurisdiction is granted as to plaintiffs claim challenging thejurisdiction ofthe district court to try and convicthim. The motion is denied in all ot her respects.

3. Defendant's motion to dismiss for failure to state a claim pursuant to 

### RCFC 12(b)(6) is granted as to plaintiffs claim of statutory and regulatory entitlementto pay.
4. We 

### sua sponte dismiss plaintiffs due process challenge to the application ofthose statutes and regulations as failing to state a claim upon which reliefmay be granted. No further legal proceedings would allow plaintiffto prove facts that would entitle him to relief.

5. The clerk of court is directed to dismiss the complaint and enter judgment accordingly. No costs.

# vi**ERICG.B~(** Senior Judge

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