The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Plaintiff, Darrell T. Oppermann, seeks declaratory relief against defendant, the United States, based on the alleged unconstitutionality of his Navy court-martial conviction by a military judge serving without a fixed term of office. Specifically, plaintiff alleges a violation of the equal protection component of the Fifth Amendment because fixed terms of office are prescribed for Army and Coast Guard trial and appellate military judges but not for those of the Navy, Marine Corps, and Air Force. Pending before the Court are defendant's Motion to Dismiss or, in the Alternative for Summary Judgment and plaintiff's Cross-Motion for Summary Judgment. Upon consideration of the motions, the responses and replies thereto, the applicable law, and the entire record, the Court GRANTS defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment and DENIES plaintiff's Cross-Motion for Summary Judgment.
Plaintiff, Darrell T. Oppermann, is a former United States Navy officer who served as a nurse anesthetist and held the rank of Lieutenant Commander.*fn1 On September 15, 2002, plaintiff, on duty as the sole anesthetist, was intoxicated while treating patients and later drove home while intoxicated in violation of a direct order. Answer to Supp. to Pet. for Grant of Review, App. B at 2 to Ex. F to Def.'s Mem. in Supp. As a result of this September 15, 2002 incident, the Navy commenced a general court-martial bench trial against plaintiff. The presiding judge was a Navy officer serving without a fixed term of office. On August 20, 2003, plaintiff was convicted of multiple violations of the Uniform Code of Miliary Justice ("UCMJ") including, among others, dereliction of duty, failure to obey a lawful order, operating a vehicle while drunk, and being drunk on duty.
Plaintiff's conviction was subject to automatic review by the United States Navy-Marine Corps Court of Criminal Appeals ("Navy-Marine Court") composed of Navy and Marine Corps officers who, like plaintiff's trial court judge, served without a fixed term of office. Pl.'s Statement of Material Facts ¶ 3 (citing 10 U.S.C. § 866(a)). Plaintiff raised two issues on appeal before the Navy-Marine Court: (1) his sentence was unduly severe*fn2 ; (2) he was denied equal protection as guaranteed by the Fifth Amendment because the military judge who presided over his trial and the judges of the Navy-Marine Court served without the protection of a fixed term of office, while trial and appellate military judges of the Army and Coast Guard have fixed terms.*fn3 Although the Navy-Marine Court did not hear oral argument, both parties fully briefed the equal protection issue. See Exs. B-D to Def.'s Mem. in Supp. (plaintiff's opening brief, defendant's answer, and plaintiff's reply). The Navy-Marine Court affirmed plaintiff's conviction on June 29, 2006. United States v. Opperman [sic], NMCCA 200500012 (N-M. Ct. Crim. App. June 29, 2006) ("Navy-Marine Court Decision"), Ex. A to Def.'s Mem. in Supp. The Navy-Marine Court responded to plaintiff's equal protection argument stating,
We have carefully examined the record of trial, the appellant's two assignments of error, the Government's response, and the appellant's reply. . . . [With respect to plaintiff's equal protection argument,] [w]e disagree, and decline to grant relief. See Weiss v. United States, 510 U.S. 163, 176-81 (1994); United States v. Loving, 41 M.J. 213, 295-96 (C.A.A.F. 1994), aff'd, 517 U.S. 748 (1996).
On July 5, 2006, plaintiff filed a timely petition for review in the United States Court of Appeals for the Armed Forces ("CAAF") raising only the equal protection argument. Contrary to the trial judge and the Navy-Marine Court judges, CAAF judges serve for a fixed term of fifteen years. Defendant filed an answer to plaintiff's petition for review, but there was again no oral argument. On October 11, 2006, the CAAF summarily denied plaintiff's petition. United States v. Oppermann, CAAF Dkt. No. 06-0731, (C.A.A.F. Oct. 11, 2006), Ex. G to Def.'s Mem. in Supp. Pursuant to 10 U.S.C. § 867(a), this denial is not subject to review by the Supreme Court.
Subsequently, on October 24, 2006, plaintiff filed his complaint in this Court alleging a violation of the equal protection component of the Fifth Amendment and requesting that the Court declare his conviction null and void. On February 9, 2007, defendant filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment. On March 2, 2007, plaintiff filed an opposition to defendant's motion or, in the alternative, a cross-motion for summary judgment.
Rule 12(b)(1) of the Federal Rules of Civil Procedure tests whether the court has subject matter jurisdiction over the action. Bernard v. U.S. Dep't of Def., 362 F. Supp. 2d 272, 277 (D.D.C. 2005). The plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C. 2001), aff'd, 346 F.3d 192 (D.C. Cir. 2003). In evaluating a motion to dismiss for lack of subject matter jurisdiction, the court must accept the complaint's well-pleaded factual allegations as true and construe all reasonable inferences in the plaintiff's favor. Thompson v. Capitol Police Bd., 120 F. Supp. 2d 78, 81 (D.D.C. 2000). "The court is not required, however, to accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations." Rann, 154 F. Supp. 2d at 64 (citations omitted). "[W]here necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Herbert v. Nat'l Acad. of Scis. 974 F.2d 192, 197 (D.C. Cir. 1992). Herbert has been interpreted "to allow a court to 'consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case.'" Sweeney v. Am. Registry of Pathology, 287 F. Supp. 2d 1, 3 (D.D.C. 2003) (citations omitted).
Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must present "enough facts to state a claim to relief that is plausible on its face," and "above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965, 1974 (2007). The Court will accept as true all factual allegations in the complaint, and give the plaintiff the benefit of all inferences ...