The opinion of the court was delivered by: Rudolph Contreras United States District Judge
MEMORANDUM OPINION GRANTING THE DEFENDANT'S MOTION TO DISMISS
This matter comes before the court on the defendant's motion to dismiss. The plaintiff previously served as a Hospital Corpsman Second Class in the United States Navy. The defendant is the United States. The plaintiff brings suit against the United States alleging that the Court of Appeals for the Armed Forces deprived him of a full and fair hearing, and that his conviction was unconstitutional. The plaintiff claims that this court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. The defendants move to dismiss the plaintiff's claims, asserting that the plaintiff's claim is barred for lack of subject mater jurisdiction, or, in the alternative, that the plaintiff failed to state a claim upon which relief can be granted. For the reasons discussed below, the Court grants the defendant's motion.
II. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Ivor Luke ("the plaintiff") previously served as a Hospital Corpsman Second Class in the United States Navy. Compl. ¶ 2. The plaintiff was convicted by a general court-martial of two specifications of indecent assault in violation Article 134 of the Uniform Code of Military Justice ("UCMJ"), 10 U.S.C. § 934, based on an incident between the plaintiff and a shipmate, Seaman Recruit TN ("TN"). Compl. ¶¶ 4, 5; United States v. Luke, NMCCA 200000481, 2004 CCA LEXIS 218, at *1 (N-M. Ct. Crim. App. Sept. 28, 2004). The plaintiff names the United States ("the defendant") as the sole defendant in the present action. The plaintiff claims that his constitutional rights were violated when the Court of Appeals for the Armed Forces ("CAAF") affirmed his conviction despite the fact that the expert witness that prepared the DNA samples in his case was discredited subsequent to trial. The plaintiff also claims that he was denied a full and fair review when the CAAF did not review one of the issues it had assigned for review, but did not reach, when the case made a previous trip to that appellate court. Compl. ¶¶ 24, 25.
Sometime in 1988, in his capacity as a Hospital Corpsman, the plaintiff examined shipmate Fireman A, during which a skin rash was discovered. Id. Fireman A conveyed that the rash might be a result of his sexual activities with TN, id, after which the plaintiff informed Fireman A that he planned to report TN and Fireman A's relationship as a violation of the ship's "no-dating" policy. Id. ¶ 5.
At some point after the plaintiff examined Fireman A, TN went to the medical spaces to be examined for a possible sexually transmitted disease.*fn1 Id. ¶ 8. At trial, TN testified that, while in the plaintiff's company, he sexually assaulted her instead of giving her a proper medical examination. Id. ¶ 8; Luke, 2004 CCA LEXIS 218, at *3. The plaintiff denied any physical contact with TN during this visit, and claimed that TN left the medical spaces upset because of the plaintiff's intention to report her relationship with Fireman A. Compl. ¶¶ 7, 8.
On February 22, 1999, a general court-martial composed of "members with enlisted representation" heard the plaintiff's case. Id. ¶¶ 4, 9. The prosecution presented two experts from the United States Army Criminal Investigations Laboratory ("USACIL"), one of which was Phillip Mills ("Mills"), previously a forensic chemist. Id. ¶ 9. Mills performed the serology analysis of TN's bra and the sheet from the bed on which the assault had allegedly occurred. Compl. ¶¶ 10, 12. Mills testified before the court-martial that the presence of amylase and epithelial cells on both the bed sheet from the medical spaces and on TN's under garments supported TN's allegations of sexual assault. Id. ¶ 12; Def.'s Mot. at 6. Another USACIL examiner, Marilyn Chase ("Chase"), conducted the subsequent DNA sequencing and analysis, and "testified that her analysis was dependent upon the integrity of  Mills' serology testing." Id. ¶ 11.
On September 28, 2004, the Navy-Marine Corps Court of Criminal Appeals ("NMCCA") affirmed the court-martial's findings and affirmed the plaintiff's conviction and sentence. Id. ¶ 16. The plaintiff then appealed the NMCCA's decision to the CAAF, which granted his petition for review and heard oral argument on two issues: first, whether the lower court erred when it upheld the trial judge's exclusion during cross-examination of evidence concerning TN's abortion, after it became relevant and material rebuttal to her testimony;*fn2 and second, whether the lower court erred when it upheld the government's failure to disclose evidence that it had prepared to use on re-direct examination of a government witness.*fn3 Id. ¶¶ 17, 18. The CAAF also granted review of a supplemental issue, which is at the heart of these proceedings: whether the plaintiff's conviction could be rightfully affirmed in light of the fact that evidence of fraudulent DNA testing had been newly discovered. Def.'s Mot. at 4; see Compl. ¶ 30.
The current challenge to Mills's testimony arises out of a USACIL-issued memorandum identifying Mills as having conducted serology tests utilizing improper practices and attributing a falsified entry to him during an unrelated DNA analysis. Compl. ¶¶ 20, 21 ("[T]echnicians determined that Mills had represented on several documents that he had completed a step of a forensic test that he had never conducted and then fabricated the results of that step."). According to the plaintiff's complaint, the USACIL investigation of Mills uncovered "substantial evidence of dishonesty, sloppiness and incompetence in [his] work product during his time at USACIL." Compl. ¶ 23. The plaintiff claims that, although USACIL's investigation concluded that Mills's serology work was incorrect more than 55 percent of the time, USACIL destroyed the DNA evidence from the plaintiff's case, foreclosing the ability to re-test it. Id. ¶¶ 24, 25. The defendant conversely notes that a 2005 USACIL review of Mills's serology work revealed that his "major flaw was a failure to locate stains," Def.'s Mot. at 7, and "found no evidence that  Mills falsified any serology data in [the p]laintiff's or any other case." Id. The defendant further asserts that the "NMCCA also held that, even without the forensic evidence in the case, the Government's case was strong enough to prove [the p]laintiff's guilt," Def.'s Mot. at 7, noting that TN's testimony was corroborated by both Fireman A and an impartial third party, and that TN reported the incident regardless of having to reveal her inappropriate romantic relationship with Fireman A. Id.
Pursuant to the findings regarding Mills's suspect handling of DNA
samples, the CAAF set aside the NMCCA's opinion affirming the
conviction, returned the record of trial to the Judge Advocate General
of the Navy for a Dubay hearing,*fn4 and directed that
the record be returned to the CAAF. Compl. ¶ 31; Def.'s Mot. at 5; see
United States v. Dubay, 17 U.S.C.M.A. 147 (1967).The military judge
conducted two subsequent Dubay hearings in June 2006 and August 2008,
respectively, both of which addressed an ongoing internal USACIL
investigation of Mills's prior work. Compl. ¶¶ 32, 33; Def.'s Mot. at
5. The plaintiff alleges, however, that these hearings were "exercises
in futility because NCIS had, as a result of USACIL's negligence,
destroyed the evidence, thereby eliminating any chance at retesting
and ultimately undermining the very reason for CAAF to order the
hearings by precluding the retesting necessary to answer the
fundamental question of contamination of the evidence[.]"*fn5
Compl. ¶ 33. After receiving the final USACIL report and
considering it alongside the findings from the two Dubay hearings, the
NMCCA affirmed the findings and the plaintiff's original sentence on
July 31, 2009. Id. ¶ 34. The NMCCA also concluded that the plaintiff's
original assignments of error were without merit. United States v.
Luke, 2009 WL 2345124, at *7 (N. M. Ct. Crim. App. July 31, 2009).
On the case's return to the Court of Appeals, the CAAF granted review of the plaintiff's case for three issues: (1) whether the results of the plaintiff's trial are not reliable in light of newly discovered evidence of Mills's misconduct; (2) whether the military judge erred when he found the government was not required to disclose evidence prepared for use on re-direct examination of a Government witness; and (3) whether the plaintiff's due process rights were violated by the untimely post-trial processing and appellate review of his court-martial. United States v. Luke, 69 M.J. 309, 311 (C.A.A.F. 2011). The CAAF did not grant review of the issue on which it had previously granted review: whether the lower court erred when it upheld the trial court's exclusion of evidence concerning TN's abortion after it became material rebuttal to her testimony. Id.
On January 25, 2011, the CAAF affirmed the NMCCA's decision and denied all three of the plaintiff's assignments of error on appeal. Id. Applying the standard contained in R.C.M. 1210(f)(2) for a new trial based on newly discovered evidence, the CAAF specifically held, despite the plaintiff's arguments to the contrary, that the newly discovered evidence involving Mills's misconduct would probably not have resulted in a substantially more favorable result for the plaintiff, Luke, 69 M.J. at 318, and based this conclusion on the USACIL finding that Mills's defective testing resulted in false negatives rather than false positives. Id.; See United States v. Brooks, 49 M.J. 64, 69 (C.A.A.F. 1998) (finding that the appropriate inquiry is "whether the newly discovered evidence, if considered by a court-martial in light of all other pertinent evidence, would probably produce a substantially more favorable result of the accused.").The CAAF "found that 'the report did not contain any evidence of contamination or false reporting in Mills' serological analysis between 1995 and 1999,' the time period during which  Mills worked on [the p]laintiff's case." Luke, 69 M.J. at 316. The CAAF concluded that the newly discovered evidence did not warrant a new trial under R.C.M. 1210(f)(2). Id. at 318.
It is from this CAAF ruling that plaintiff brings suit in this Court. In his complaint, plaintiff claims, based on the standard set forth in Mesarosh v. United States, 352 U.S. 1 (1956), that his constitutional rights were violated when the CAAF affirmed his conviction despite it being undermined by the post-trial discrediting of Mills's lab work. Plaintiff also claims that CAAF deprived him of a full and fair hearing by failing to rule on the plaintiff's original assignments of error. Compl. ¶¶ 49, 50, 51. The defendant has moved to dismiss both of the plaintiff's claims. For the reasons set forth below, the defendant's motion to dismiss is granted.
A.Legal Standard for a Rule 12(b)(1) Motion to Dismiss
The defendants move to dismiss this case pursuant to Rule 12(b)(1), or, in the alternative, Rule 12(b)(6). A Rule 12(b)(1) motion "imposes an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority," and gives the plaintiff the burden of establishing that the court has jurisdiction. Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). "Because subject-matter jurisdiction focuses on the court's power to hear the plaintiff's claim, a Rule 12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Id. at 13-14.In considering a Rule 12(b)(1) motion to dismiss, the court need not limit itself to the allegations in the complaint, but may consider such materials outside of the pleadings as it deems appropriate to resolve the question of whether it has ...