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Bliss v. England

June 20, 2002


Document Nos. 7, 14

The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge



This matter comes before the court on the defendant's motion to dismiss. Theodore A. Bliss ("the plaintiff" or "Mr. Bliss") brings suit against his employer, the United States Navy ("the defendant"), under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., and 10 U.S.C. § 1372(3), claiming that the Board for Correction of Naval Records ("BCNR") decided his retirement rank in an unlawful manner. The plaintiff asks for declaratory relief, or, in the alternative, injunctive relief, as well as monetary damages. The defendant contends that the plain effect of this suit is to obtain monetary relief in an amount exceeding $10,000 and, as such, the Tucker Act dictates the jurisdictional requirements of this suit, vesting subject-matter jurisdiction exclusively in the Court of Federal Claims. 28 U.S.C. §§ 1346(a)(2), 1491. Unless the plaintiff waives any monetary damages greater than $10,000, the court agrees with the defendant's contention and grants the defendant's motion to dismiss.


Captain Theodore Bliss, U.S.M.C. (ret.), received a commission in the United States Marine Corps in 1978 and served on active duty until his release on November 2, 1992. *fn1 Compl. ¶¶ 4, 6. On November 4, 1992, he accepted a commission in the United States Marine Corps Reserve ("USMCR"). Id. ¶ 6. On December 1, 1993, the USMCR promoted Mr. Bliss to the rank of major. Id. ¶¶ 7, 8. Subsequently, on June 27, 1994, he suffered a seizure, which led to the discovery of a brain tumor. Id. ¶¶ 9, 10. Mr. Bliss underwent brain surgery in July 1994. Id. ¶¶ 10, 11.

Once it was conclusively established that Mr. Bliss's brain tumor had existed before his release from active duty in 1992, the BCNR placed Mr. Bliss on the Temporary Disability Retired List ("TDRL"), effective November 2, 1992. Compl. ¶ 17. The Navy subsequently placed Mr. Bliss on the Permanent Disability Retired List. Id. ¶ 18. In response to Mr. Bliss's June 16, 1996 request to have his retirement rank changed to major, the Navy advised him that it considered his retirement rank to be captain. Id. ¶ 19. On January 7, 1997, the BCNR again denied the plaintiff's request to modify his record to reflect his retirement rank as a major. Id. ¶ 22. On July 29, 1999, the BCNR denied his renewed request, informing him that reconsideration of his request would not be appropriate because "the decision would inevitably be the same." Id. ¶ 23.

On September 12, 2001, the plaintiff filed suit in this court. In his original complaint, Mr. Bliss asserted that the court had jurisdiction over this case because it presented a federal question pursuant to 28 U.S.C. § 1331. Id. ¶ 1. Mr. Bliss alleged that the court had jurisdiction pursuant to 10 U.S.C. § 1372(3), which provided that the Secretaries of the military departments must promote an officer (if so entitled) on the TDRL pursuant to 10 U.S.C. § 1201 et seq. Id.

In response, the defendant moved to dismiss the original complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. Mot. to Dismiss at 1. The defendant argued that the U.S. government is immune to suit except in cases where the government explicitly waives immunity, and that by naming as the defendant the Secretary of the Navy and by suing him in his official capacity, the plaintiff is essentially suing the sovereign. Id. at 3, 4. As the defendant stated, 28 U.S.C. § 1331 is "only a general jurisdictional statute and such a statute does not provide a general waiver of sovereign immunity." Id. at 5. In addition, the defendant explained that neither 10 U.S.C. § 1372(3) nor 28 U.S.C. § 2201 provide a waiver of sovereign immunity and thus that this court lacks subject-matter jurisdiction to hear the case. Id. at 6, 7.

Because the suit was essentially about monetary relief, the Navy maintained, the requirements of the Tucker Act controlled the case. Id. at 8. The defendant argued that because the amount in controversy was well in excess of $10,000, the Court of Federal Claims had exclusive jurisdiction to hear the case. Id. at 9 (citing 28 U.S.C. §§ 1346(a)(2), 1491).

On February 15, 2002, the plaintiff filed an amended complaint, claiming the court had jurisdiction under the APA, 5 U.S.C. § 701 et seq., which permits a federal court to review and reverse a BCNR decision that is arbitrary, capricious, unsupported by evidence or otherwise contrary to law. Am. Compl. ¶ 1. The plaintiff asserts that his amended complaint renders the defendant's first motion to dismiss moot because an action brought under the APA triggers a waiver of sovereign immunity, permitting the court to hear the case. Pl.'s Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n") at 3. Mr. Bliss also disputes that the Tucker Act is controlling in the case. He insists that he is not seeking monetary relief, but instead seeks to correct his record by having it reflect his proper rank of major. This revision, he pleads, would render value beyond mere monetary remuneration. Pl.'s Opp'n at 3.

On March 13, 2002, the defendant filed a renewed motion to dismiss, arguing that even though on its face the complaint seeks equitable relief, it actually constitutes a plea for monetary relief, that the rank of major does not have intrinsic value apart from the accompanying financial gain, and that the plaintiff is attempting to avoid the Tucker Act by "artful pleading." Def's Opp'n to Pl.'s Am. Compl. and Renewed Mot. to Dismiss ("Renewed Mot. to Dismiss") at 5. The defendant renewed his motion to dismiss, claiming that because the Tucker Act controls, this court still does not have subject-matter jurisdiction. Renewed Mot. to Dismiss at 5. The court now turns to the defendant's renewed motion to dismiss.


A. Legal Standard for Motion ...

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