The opinion of the court was delivered by: Judge Royce C. Lamberth
Now before the Court comes defendant United States' motion  to dismiss and plaintiff Kevin R. Sanford's cross-motion  for summary judgment. Upon consideration of the motions, opposition and reply briefs, the entire record herein, and applicable law, the Court finds that defendant's motion to dismiss will be GRANTED and that plaintiff's cross-motion for summary judgment will be DENIED.
This case raises the issue of whether a plaintiff's special-court martial conviction of a non-petty offense violates due process when the court-martial is composed of four members. (See Compl. ¶ 20.)
Plaintiff is a United States citizen who previously served as a sergeant in the United States Marine Corps. (Id. ¶ 2.) On October 3, 2004, a special court-martial comprised of four members*fn1 convicted plaintiff of violating lawful order, dereliction of duty, larceny, and impersonating an officer, all in violation of the Uniform Code of Military Justice ("UCMJ"). (Id. ¶¶ 4, 10); see 10 U.S.C. §§ 801 et seq. Plaintiff's conviction was based on his false preparation of recall orders for a marine reservist and other false representations that induced the reservist's employer to purchase airfare on his behalf for travel from Texas to Camp Pendleton, California. See United States v. Sanford, 2006 WL 4571896, at *1 (N-M Ct. Crim. App. Nov. 6, 2006). Plaintiff was sentenced to confinement for six months, forfeiture of $767.00 pay per month for six months, reduction from pay grade E-5 to grade E-1, and a bad-conduct discharge. See id. Claiming eight assignments of error, plaintiff appealed his conviction to the U.S. Navy-Marine Corps Court of Criminal Appeals. Id. That court considered each of plaintiff's contentions, affirmed his finding of guilt with some modifications, and decreased his sentence of confinement to 150 days. Id. at *11. Regarding plaintiff's assignment of error at issue before this Court, the military appeals court stated: "We have considered the appellant's eighth assignment of error challenging his convictions for 'non-petty offenses' by a panel of only four members, and find it to be without merit." See id. at *10 n.2 (citing United States v. Wolff, 5 M.J. 923, 925 (N.C.M.R. 1978)).
On February 7, 2007, the Court of Appeals for the Armed Forces ("CAAF") denied plaintiff's petition for grant of review. See 64 M.J. 428 (C.A.A.F. 2007). Plaintiff then filed suit in this Court on October 4, 2007.
Defendant moves to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. When a party files a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), "the plaintiff[ ] bear[s] the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction." Biton v. Palestinian Interim Self-Gov't Auth., 310 F. Supp. 2d 172, 176 (D.D.C. 2004). A court considering a motion to dismiss for lack of jurisdiction must construe plaintiffs' complaint in plaintiffs' favor, accepting all inferences that can be derived from the facts alleged. Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), this Court will dismiss a claim if the plaintiff fails to plead "enough facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). The complaint need only set forth a short and plain statement of the claim, giving the defendant fair notice of the claim and the grounds upon which it rests. Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). This Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiff and must grant the plaintiff the benefit of all inferences that can be derived from the facts alleged. Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (citing Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).
Under Federal Rule of Civil Procedure 56(c), a court must grant summary judgment when the evidence demonstrates that there are no disputed issues of material fact and that the moving party is entitled to judgment on the undisputed facts as a matter of law. FED. R. CIV. P. 56(c). A genuine issue of material fact exists if the evidence, when viewed in a light most favorable to the nonmoving party, "is such that a reasonable ...