Dillon v. United States

1

SEAN J. DILLON, Plaintiff, v. UNITED STATES, Defendant.

No. 21-2016C

United States Court of Federal Claims

July 1, 2024

NOT FOR PUBLICATION

MEMORANDUM OPINION AND ORDER

Richard A. Hertling Judge

The plaintiff, Sean J. Dillon, an inmate at the United States Disciplinary Barracks, Fort Leavenworth, and a former soldier of the United States Army ("Army"), proceeding pro se, filed this action on October 7, 2021.

On April 28, 2016, the plaintiff was adjudged guilty by a general court-martial of sexually assaulting his two daughters and was sentenced to 30-years confinement reduction to the grade of E-1, and a dishonorable discharge.^[1] The plaintiff claims that his sentence is illegal because the Army lacked jurisdiction over him under the Uniform Code of Military Justice ("UCMJ") because he had been notified that he was to be medically retired on November 30, 2015, several months before his court-martial. The plaintiff argues that the revocation of the order that he be retired and the November 25, 2015 notice of the charges against him were ineffective, and that he retired from the Army on November 30, 2015, so that the April 2016 court-martial therefore lacked jurisdiction to try him. The plaintiff seeks a declaration that his right to due process under the fifth amendment was violated, an injunction against further violations of his rights, the correction of his military records to show he was medically retired on November 30, 2015, and back pay of his retirement annuity. Liberally construing the plaintiff's complaint, he also argues that once he had been approved for medical retirement, federal law, 10 U.S.C. § 1201, requires the Army to provide him medical-retirement pay despite the intervening court-martial.

The defendant has moved to dismiss under Rules 12(b)(1) and 12(b)(6) of the Rules of the Court of Federal Claims ("RCFC"). The defendant argues that the plaintiff's complaint is a collateral attack on his court-martial conviction, over which this court can only exercise jurisdiction in narrow circumstances that are not met here. Alternatively, the defendant argues that the plaintiff has failed to state a claim because, on the face of the complaint, the plaintiff's retirement orders had been revoked before his retirement, so that he was lawfully subject to UCMJ jurisdiction.

The complaint fails to identify a basis for Tucker Act jurisdiction over the plaintiff's claims relating to his contention that the court-martial lacked jurisdiction over him. That claim is dismissed pursuant to RCFC 12(b)(1) and 12(h)(3). As for the claim that the Army was required to pay the plaintiff his medical-retirement pay notwithstanding his court-martial, the complaint is dismissed for failure to state a claim pursuant to RCFC 12(b)(6).

I. BACKGROUND^[2]

The plaintiff enlisted in the Army on June 24, 1996, and eventually reached the rank of sergeant first class, E-7. Compl. Ex. A; Compl. Ex. F.) During his service, he suffered several combat-related injuries, including two traumatic brain injuries, and was diagnosed with post-traumatic stress disorder. (Compl. at ¶¶ 2, 24.) These injuries led a Medical Evaluation Board to determine in December 2013 that the plaintiff was not fit for active duty. (Compl. at ¶ 27.) In November 2014, a Physical Evaluation Board ("PEB") confirmed that the plaintiff's injuries were permanent and approved his retirement on medical grounds. (Compl. at ¶ 28.) Because he appealed certain aspects of the PEB's decision in February and March 2015, the plaintiff's retirement was delayed. (Compl. at ¶ 29.) In April 2015, the U.S. Army Physical Disability Agency, on behalf of the Secretary of the Army, approved the plaintiff's medical retirement under the Temporary Enhanced Disabled Retired List under Army Regulation ("AR") 630-45, ¶ 4-29(b)(2), because the plaintiff was between his 18^th and 20^th year of service. (Compl. at ¶ 30.) The Secretary of the Army ordered the plaintiff's involuntarily retirement no later than November 30, 2015. (Id.)

After a delay caused by surgery, between August and November 2015, the plaintiff engaged in tasks in preparation for his medical retirement. (Compl. at ¶¶ 32-34.) These tasks included "clear[ing] the installation of any administrative connections, receiv[ing] final accounting of pay, and receiv[ing] a DD Form 214" ("DD-214"). (Compl. at ¶ 34.) The DD Form 214 noted a disability "separation date this period" of November 29, 2015. (Compl. Ex. A at 1.)

On November 3, 2015, the plaintiff's retirement orders were revoked by an order from U.S. Army Installation Management Command either by or on behalf of the chief of the military personnel division. (Def.'s Mot. to Dismiss Ex. A at 2.)^[3] On November 25, 2015, the plaintiff was served a charge sheet (DD Form 458). (Compl. at ¶ 35.) Although the plaintiff informed his command of his view that he had already been medically retired, rendering the UCMJ charges against him invalid, his command refused to let him leave his unit or retire. (Compl. at ¶ 37.) In April 2016, the plaintiff received via certified mail an "official notification" from the Army that he had been medically retired on November 30, 2015. (Compl. at ¶ 38.)

The plaintiff was tried by a general court-martial on April 26-28, 2016. (Compl. at ¶ 39.). The plaintiff, through counsel, argued that he had been medically retired in November 2015 and was beyond the court-martial's jurisdiction, but the military judge rejected that defense. (Compl. at ¶ 38.) The plaintiff was convicted of sexually assaulting his two daughters. See United States v. Dillon, No. Army 20160324, 2019 WL 302073, at *1-2 (Army Ct. Crim. App. Jan. 17, 2019). In October 2016, the convening authority modified the period of confinement to 29 years and 11 months but otherwise approved the conviction. Id. at *1.

The plaintiff appealed to the Army Court of Criminal Appeals ("ACCA"), arguing through counsel that he had suffered an illegal post-trial punishment and that the court-martial had lacked jurisdiction over him. Id. at *1-2, 2 n.2; (see Compl. at ¶ 41.) Although the ACCA determined that the plaintiff had suffered an illegal post-trial punishment in violation of Article 57 of the UCMJ when his company commander publicly ripped the plaintiff's rank insignia off his uniform immediately after his conviction, it affirmed "the findings of guilty" and affirmed a sentence of "a dishonorable discharge, reduction to the grade of E-1, and confinement for twenty-nine years ten months and twenty-three days." Dillon, 2019 WL 302073 at *2-3. The ACCA rejected the plaintiff's argument concerning personal jurisdiction in a footnote, concluding "[a]lthough appellant was close to retirement before any charges were preferred, he was not, in fact, retired." Id. at *2 n.2. The plaintiff subsequently petitioned the U.S. Court of Appeals for the Armed Forces to review the case; that petition was denied without comment. United States v. Dillon, 79 M.J. 189 (C.A.A.F. 2019); (see Compl. at ¶ 42). On March 14, 2019, the plaintiff received a revised DD-214, and on July 24, 2020, was dishonorably discharged. (Compl. at ¶¶ 43-44; Compl. Ex. D) On August 6, 2021, the plaintiff filed a petition for a writ of habeas corpus in the United States District Court for the District of Columbia. No. 1:21-cv-02124, ECF 1 (D.D.C.). The plaintiff argued that the court-martial had lacked jurisdiction over him because he had been medically retired on November 30, 2015. D.D.C. Compl. at ¶¶ 1, 2(a) 22, 65-66.

II. PROCEDURAL HISTORY

A. Proceedings in this Court

While his habeas petition was pending, on October 7, 2021, the plaintiff filed this complaint. On December 6, 2021, the defendant filed a motion to dismiss. On December 17, 2021,Judge Campbell-Smith stayed the case and referred the plaintiff to the court's pro bono attorney-referral program. That referral failed to secure the plaintiff counsel, and on June 30, 2022,the stay was lifted. On October 31, 2022, the plaintiff filed his response to the motion to dismiss. On December 14, 2022, the defendant filed its reply.

On August 15, 2023, the plaintiff filed a motion for leave to supplement his opposition; that motion was granted. On September 19, 2023, the defendant filed a motion to stay the case pending action by the Supreme Court on a petition for certiorari in Larrabee v. Del Toro, No. 22-1082. That order was granted. On October 10, 2023, the Supreme Court denied the petition. Larrabee v. Del Toro, 144 S.Ct. 277 (2023).

After Judge Campbell-Smith retired, the case was reassigned to the undersigned, and on May 6, 2024, the stay was vacated. Each party was given to May 31, 2024, to file a supplemental brief to address "any additional authority decided since the motion was briefed and to address whether the decision in Labonte v. United States, 43 F.4th 1357 (Fed. Cir. 2022), dealing with Army Regulation 635-40, has any impact on [the plaintiff's] case." (May 6, 2024, Order.) The defendant filed its supplemental brief on May 30, 2024, but the plaintiff requested additional time and was given until June 28, 2024, to file his supplemental brief. Despite having been given the additional time, the plaintiff, the plaintiff did not file a supplemental brief by the deadline.

B. Parallel Proceedings in the District Courts

While this case was pending, the D.C. district court dismissed the plaintiff's habeas petition on March 31, 2021, for lack of jurisdiction. The court held that only the district court with jurisdiction over the plaintiff's custodian, i.e., the District of Kansas, had jurisdiction over the plaintiff's petition. Dillon v. Wormuth, No. 1:21-CV-02124, 2022 WL 971087, at *3 (D.D.C. Mar. 31, 2022).

On May 4, 2022, the plaintiff filed a petition for a writ of...