RIGINAL 

3Jn tbe Wniteb $tates QCourt of jf eberal QCiaints FILED 

No. 16-560 c FEB - 9 2017 

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

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

DANIEL CHASE HARIUS 

Plaintiff, 

v. 

THE UNITED STATES, 

Defendant. 

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

FEDERAL CLAIMS 

Military Pay Act, 37 U.S.C. § 204; 

Absent Without Leave ("AWOL"); 3 7 

U.S.C. § 503; Absence Excused as 

Unavoidable; DOD Financial 

Management Regulation; Pretrial 

Confinement; Subsequent Conviction; 

Due Process; Jurisdiction. 

Daniel C. Harris, pro se, plaintiff. 

Meen Gue Oh, Trial Attorney, United States Department of Justice, 

Civil Division, Commercial Litigation Branch, Washington, DC; with whom 

was Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Robert 

E. Kirschman, Jr., Director, Douglas Mickle, Assistant Director, for defendant. 

LT Zachary Dembo, United States Navy, Office of the Judge Advocate 

General, of counsel. 

OPINION 

BRUGGINK, Judge. 

This is a military pay case in which plaintiff seeks to recover back pay 

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. The motion is fully briefed; oral argument is unnecessary. Plaintiff 

has established jurisdiction for his back pay claim, which is based on a 

money-mandating federal pay statute but has failed to establish jurisdiction on 

a separate claim challenging the jurisdiction of the civilian court to prosecute 

a military member. The case raises the question of whether a serviceman held 
in confinement prior to conviction is absent without leave, or if instead, his 

absence from duty is excused. Because plaintiffs absence from duty was not 

excused as unavoidable and because he was afforded due process, he has failed 

to state a claim for back pay. 

BACKGROUND 

Plaintiff has 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 of 32 criminal counts by a jury in the United States District 

Court for the Eastern District of Virginia. He was 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. Plaintiff has 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) of the Rules of the United States Court ofFederal Claims ("RCFC"). 

On October 3, 2016, plaintiff filed 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 

relief may be granted and for lack of subject matter jurisdiction over certain 

elements of plaintiffs back pay claim. Defendant also moves to dismiss for 

lack of subject matter jurisdiction over plaintiffs due process claim 

challenging the jurisdiction of a civilian court to prosecute a military service 

member. 

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I . Statutory Claim For Back Pay 

In deciding a motion to dismiss under RFCF 12(b)(6), the court 

assumes the truth of all of the factual allegations in the complaint to determine 

whether it states a claim upon which relief may be granted as a matter oflaw. 

See Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). The 

allegations of the complaint "must be enough to raise a right to relief above the 

speculative level" in order to "state a claim to relief that 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 of truthfulness." Blaze Constr., Inc. v. United States, 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 of a uniformed service 

who is on active duty is "entitled to the basic pay of the pay grade to 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 "Absent Without Leave (AWOL)." 37 U.S.C. 

§ 503(a) ("A member of the ... Navy, ... who is absent without leave or over 

leave, forfeits all pay and allowances from the period of that absence, unless 

it is excused as unavoidable."). Department ofDefense Financial Management 

Regulation ("DOD Regulation"), Volume 7 A, 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 unavoidable then the member is not entitled to pay and allowances, 

except for that part of the 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) 

regarding his AWOL status after his conviction. See Matthew v. United States, 

750 F.3d 1320, 1323 (Fed. Cir. 2014) (holding that a plaintiff who 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 plaintiff was incarcerated."). Rather, plaintiff urges 

that the period of time he was confined prior 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 

during pre-trial confinement as excused as unavoidable, thus making plaintiff 

entitled to full pay during his absence. Plaintiff cites DOD Regulation Table 

1-12, Rule 5, which states that, ifthe plaintiff is 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, if a 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 back pay, argues 

defendant. 

Plaintiff rep lies that Rule 6 ofTable 13 only applies after the conviction 

has taken place, i.e., it says nothing regarding his pretrial confinement. He 

points to the surrounding rules in the DOD regulations that concern themselves 

with the ultimate disposition of a 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 of the 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 Plaintiff cites three cases in support of his argument that pretrial 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 

of those cases did the plaintiffs claim back pay for periods of time prior to 

their convictions. Mr. Harris thus infers that this is because both of those 

plaintiffs must have been paid during their civil confinements prior to 

conviction; otherwise they would have claimed those periods in their 

4 
We 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 period of that absence, unless 

it is excused as unavoidable."). The DOD regulations provide for 

circumstances when a service member's absence is considered excused as 

unavoidable. The provision cited by plaintiff, Rule 5 of Table 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 of pay and allowances." DOD 

Regulation, vol. 7 A, 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 of that table apply "when a member is absent from 

duty in confinement by civil authorities." Id. at Table 1-13, Rules 1-10. Eight 

of the ten circumstance described in these rules deal with the ultimate outcome 

of a service member's criminal case. Rule 1 concerns 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 the jury is hung. Rule 6, cited by defendant, deals with trial and subsequent 

conviction. In that case, the absence "may not be 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 of failure 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 the period of confinement after his court martial. Plaintiff infers that 

he did not claim pre-court martial confinement back pay because the Navy 

paid him until he was court martialed, consistent with what plaintiff argues 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 of whether 

a service member's pre-conviction confinement is excused under 37 U.S.C. § 

503. 

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tried and found not guilty by reason of insanity (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 

plaintiffs current situation, draws no distinction between the period before and 

after conviction. That is to say, given the fact that we now know plaintiff was 

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 a judgment of 

acquittal or conviction. The way the rules are structured, it is sufficient to say 

that plaintiff can point to no regulation that characterizes his pre-conviction 

status as an excused absence. He is thus unable to 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 of the statutes and regulations as unconstitutional because they do 

not afford him due process. Plaintiff further challenges the jurisdiction of the 

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. 

The Tucker Act gives this court jurisdiction to "render judgment against 

the United States founded either upon the Constitution, or any Act of Congress 

or any regulation of an 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 itself is "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 order to invoke jurisdiction under the 

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 and Human Servs., 195 F.3d 1302, 1309 

(Fed. Cir. 1999). 

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A. Jurisdiction Over Claims of Due Process Violation Relating to Back 

Pay 

We begin with the due process claim relating to plaintiffs entitlement 

to pay under the Military Pay Act. Plaintiff argues that, because he was 

presumed innocent while awaiting trial, the withholding of his pay during this 

period deprived him of his property without due process of law in violation of 

the Fifth and Fourteenth Amendments. Defendant responds that this court has 

consistently held that it lacks jurisdiction over Fifth and Fourteenth 

Amendment due process claims. See LeBlanc v. United States, 50 F.3d 1025, 

1028 (Fed. Cir. 1995) (holding that the Court of Federal Claims does not have 

jurisdiction to hear claims under the Fifth and Fourteenth Amendment because 

those are not money-mandating provisions of law). Although defendant's 

observation is correct, plaintiffs claim is not a naked assertion of rights under 

those amendments as was the case in LeBlanc and other similar jurisdictional 

dismissals. 

Where a plaintiff relies on a federal pay statute to establish his 

substantive right to damages, the alleged unconstitutional withholding of that 

pay is not outside of the Tucker Act's purview. Kennedy v. United States, 5 Cl. 

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 of that substantive right in violation of his First Amendment). Here, 

plaintiff relies on the Military Pay Act as establishing a substantive right to 

damages under the Tucker Act. He argues that the application of the AWOL 

statute and implementing DOD regulations run afoul of the 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 

establish jurisdiction 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 technically raising this issue sua sponte. 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 

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been discharged. Defendant moved to dismiss the complaint for failure to state 

a claim, citing the application of the AWOL statute to plaintiffs claims. In 

response, plaintiff moved to amend his complaint to reduce his claim to the 

period of confinement prior to his sentencing. The proposed complaint also 

contained substantive arguments in response to defendant's motion, such as the 

citation to Table 1-12 and the assertion of due process rights. In order to avoid 

further delay in resolving the motion and because there was no prejudice to 

plaintiff in doing so, we denied the motion to amend the complaint but directed 

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 brief but did not challenge these new claims 

under Rule 12(b)(6). We allowed plaintiff to file a sur-reply to respond to 

those arguments. 

Normally, the court considers the issue of whether a complaint alleges 

a claim for which the court can afford relief upon a motion by a party. See 

RCFC 12(h)(2). By contrast, the issue of subject matter jurisdiction can be 

raised at any time, including by the court of its own accord. RCFC 12(h)(3). 

The court may, however, under certain circumstances, raise the issue of the 

merits of the 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. 

United States, 190 F.3d 1372, 1377 (Fed. Cir. 1999). Here, the issues were well 

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 plaintiff to prove facts that would entitle 

him to prevail. 

Plaintiff argues that the withholding of his pay prior to conviction, a 

period during which the accused is presumed innocent, without opportunity to 

be heard on the issue of garnishment violates the fundamental constitutional 

protection from the deprivation ofliberty and property without due process of 

law. Plaintiff cites 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 of wages when those wages were the subject of 

a civil action for garnishment. The Court held 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. Plaintiff also cites Bell 

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v. Wofjish, 441 U.S. 520 (1979), for the proposition that due process rights 

attach to actions that deprive confined persons of liberty and property rights 

prior to conviction. Reading these two cases together, plaintiff argues that the 

Navy could not legally have stopped paying him prior to his conviction without 

some additional process being afforded. We disagree. 

Plaintiff has confounded pretrial actions taken during a criminal 

proceeding by 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. If the 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 of the law. 

Id. 

Here, plaintiff does not question his pretrial confinement or the other 

conditions placed upon his liberty rights prior to his trial, nor would this be the 

court in which to assert such a challenge. The rights cited in Bell are thus not 

implicated here. The challenge is to the Navy's administrative withholding of 

pay during his civilian confinement. There is no doubt that the Navy has the 

legal authority to do so pursuant to 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 of Congress, 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. If the service member is unavailable and not otherwise 

excused, that member is not entitled to pay. Plaintiff does not challenge that 

he was AWOL during his civilian confinement. That law 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 of the 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 of the 

underlying merits of the civilian criminal case. Plaintiffherewas subsequently 

found guilty. He was therefore not statutorily eligible to receive pay during his 

detention. These allegations thus fail to state a claim upon which relief can be 

granted. 

C. Plaintiffs Challenge to Civilian Jurisdiction 

Plaintiffs final challenge is to the jurisdiction of the civilian court to 

prosecute him as a military service member. He asserts that such jurisdiction 

was a violation of the 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 of other district courts." Joshua v. United 

States, 17 F.3d 378, 380 (Fed. Cir. 1994). This includes review of whether a 

district court has jurisdiction over a particular case. Further, it is well settled 

that this court "does not have jurisdiction to review and overturn criminal 

convictions." Anderson v. United States, 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, we have jurisdiction over both of plaintiffs back pay claims but 

lack jurisdiction over his challenge to being subjected to the civilian criminal 

justice system while a member of the armed services. Nevertheless, because 

plaintiff was 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. 

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2. Defendant's motion to dismiss for lack of jurisdiction is granted as 

to plain ti ff s claim challenging the jurisdiction of the district court to 

try and convict him. The motion is denied in all other 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 entitlement to pay. 

4. We sua sponte dismiss plaintiffs due process challenge to the 

application of those statutes and regulations as fa iling to state a claim 

upon which relief may be granted. No further legal proceedings would 

allow plaintiff to 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. 

ERICG.B~( vi Senior Judge 

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