Case: 22-2068 Document: 55 Page: 1 Filed: 03/21/2024
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`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`JESSE RICHARDSON,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`______________________
`
`2022-2068
`______________________
`
`Appeal from the United States Court of Federal Claims
`in No. 1:20-cv-00086-CNL, Judge Carolyn N. Lerner.
`______________________
`
`Decided: March 21, 2024
`______________________
`
`JONATHAN W. CRISP, Crisp and Associates, LLC, Har-
`risburg, PA, for plaintiff-appellant.1
`
` ANNE DELMARE, Commercial Litigation Branch, Civil
`Division, United States Department of Justice, Washing-
`ton, DC, for defendant-appellee. Also represented by
`
`1 Crisp’s motion to withdraw as counsel was granted
`on March 1, 2024, after briefing but prior to the case being
`submitted on the briefs. ECF No. 53.
`
`

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`Case: 22-2068 Document: 55 Page: 2 Filed: 03/21/2024
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`2
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`RICHARDSON v. US
`
`BRIAN M. BOYNTON, STEVEN JOHN GILLINGHAM, PATRICIA
`M. MCCARTHY.
`
`______________________
`
`Before MOORE, Chief Judge, LOURIE and DYK, Circuit
`Judges.
`
`PER CURIAM.
`Jesse Richardson appeals from a decision of the United
`States Court of Federal Claims (“the Claims Court”) that
`dismissed his claim for reinstatement to the U.S. Army
`(“the Army”) and for back pay after finding that his retire-
`ment was voluntary. Richardson v. United States, No. 20-
`86C, 2022 WL 1744501 (Fed. Cl. May 31, 2022) (“Deci-
`sion”). He also appeals from the dismissal of his claims for
`correction of his military records for a lack of subject mat-
`ter jurisdiction. Id. For the following reasons, we affirm.
`BACKGROUND
`Richardson was appointed to the rank of Warrant Of-
`ficer (“WO”) on December 4, 2014. Decision at *1. In Jan-
`uary 2015, the U.S. Army Criminal Investigation Division
`(“the CID”) began investigating allegations that Richard-
`son had sexually assaulted a civilian Army employee. Id.
`The investigation led to his name being entered into the
`title block of an investigation report and subsequently into
`a database, an action referred to as “titling.” Id. Based on
`the results of the investigation, he received a general of-
`ficer memorandum of reprimand (“GOMOR”) and a nega-
`tive officer evaluation report (“OER”). Id.
`In August 2016, Richardson’s automatic promotion to
`Chief Warrant Officer 2 (“CW2”) was delayed and referred
`to a promotion review board (“PRB”). Id. at *2. The PRB
`convened and submitted a recommendation to the Acting
`Secretary of the Army. Id. The Acting Secretary removed
`Richardson from the promotion list, and, per Army regula-
`tions, a WO who is not selected for promotion to CW2 must
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`Case: 22-2068 Document: 55 Page: 3 Filed: 03/21/2024
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`RICHARDSON v. US
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`3
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`be separated from the Army. Id.; Army Reg. 600-8-24
`¶ 5-11(a) (2011). On March 20, 2017, he received his notice
`of separation and was presented with four options: (1) re-
`quest appointment in the Army Reserve following involun-
`tary separation; (2) end his affiliation with the Army
`entirely after involuntary separation; (3) resign and re-
`quest enlistment in the active-duty Army; or (4) request
`early retirement. Decision at *2.
`On April 4, 2017, Richardson acknowledged receipt of
`the separation notice and on the next day opted to apply for
`early retirement. Id. at *3. On his retirement application,
`he stated that he understood that, if granted, his retire-
`ment “may not be withdrawn except for extreme compas-
`sionate reasons or
`for
`the definitely established
`convenience of the Government.” Id. On September 19,
`2017, his early retirement request was granted with an ef-
`fective date of November 30, 2017. Id.
`Approximately seven weeks after requesting early re-
`tirement, on May 22, 2017, Richardson filed a petition with
`the Army Board for the Correction of Military Records (“the
`ABCMR”) requesting removal of the GOMOR, adverse
`OER, and titling information from his records, his reten-
`tion in the Army, and his return to the CW2 promotion list.
`Id.; J.A.2 1164–72. On November 16, 2017, the ABCMR
`unanimously recommended granting the requested relief
`except for the removal of the titling, instead recommending
`that the CID consider the new information submitted by
`Richardson and change his investigation report to “un-
`founded” if warranted. Decision at *3; J.A. 1038–39. On
`June 21, 2018, nearly seven months after Richardson’s re-
`tirement, the Acting Assistant Secretary of the Army
`(Manpower and Reserve Affairs) (“the Assistant Secre-
`tary”) rejected the ABCMR’s recommendation and denied
`
`
`2 J.A. refers to the Joint Appendix.
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`4
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`RICHARDSON v. US
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`Richardson’s requests under 10 U.S.C. § 1552. Decision at
`*3; J.A. 1036.
`On January 27, 2020, Richardson filed his complaint in
`the Claims Court under the Military Pay Act, 37 U.S.C.
`§ 204. Decision at *4. He requested reinstatement to the
`Army at the rank of CW2 with back pay and benefits, re-
`moval of the GOMOR, adverse OER, and titling records,
`and amendments of the CID investigation record to “un-
`founded.” Id.; J.A. 1026–27. The case was voluntarily re-
`manded to the Assistant Secretary to issue a new decision,
`which again rejected the ABCMR’s recommendation and
`denied Richardson’s requests. Decision at *4; J.A.
`1030–33.
`Following remand, the parties filed dispositive cross-
`motions. Decision at *4. The Claims Court dismissed Rich-
`ardson’s claim for reinstatement and promotion with back
`pay for failure to state a claim because he failed to suffi-
`ciently allege that his retirement was involuntary. Id. at
`*11. Specifically, the Claims Court held that Richardson
`failed to allege facts that would satisfy any of the elements
`of the test for involuntariness under Carmichael v. United
`States, 298 F.3d 1367 (Fed. Cir. 2002). Id. at *7–11. The
`Claims Court also dismissed his equitable requests for cor-
`rection of his military records for a lack of subject matter
`jurisdiction. Id. at *5–6. Richardson timely appealed and
`we have jurisdiction under 28 U.S.C. § 1295(a)(3).
`DISCUSSION
`We review a grant of a motion to dismiss for failure to
`state a claim de novo. Prairie Cty., Mont. v. United States,
`782 F.3d 685, 688 (Fed. Cir. 2015). We take “all factual
`allegations in the complaint as true and construe the facts
`in the light most favorable to the non-moving party.” Jones
`v. United States, 846 F.3d 1343, 1351 (Fed. Cir. 2017).
`Granting a motion to dismiss for failure to state a claim “is
`appropriate when the facts asserted by the claimant do not
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`RICHARDSON v. US
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`entitle him to a legal remedy.” Lindsay v. United States,
`295 F.3d 1252, 1257 (Fed. Cir. 2002).
`Richardson’s claim for reinstatement and promotion
`with back pay is predicated on his allegedly wrongful re-
`tirement. To state a claim for relief under the Military Pay
`Act, he must establish that his retirement was involuntary.
`See Metz v. United States, 466 F.3d 991, 1000 (Fed. Cir.
`2006) (holding that voluntariness is part of the merits of a
`case under the Military Pay Act rather than a jurisdic-
`tional concern). Retirement is generally presumed volun-
`tary; however, Richardson may rebut that presumption if
`he can “demonstrate that: (1) he involuntarily accepted the
`terms of the government; (2) circumstances permitted no
`other alternative; and (3) said circumstances were the re-
`sult of the government’s coercive acts.” Carmichael,
`298 F.3d at 1372. Richardson must allege facts establish-
`ing all three elements to rebut the presumption of volun-
`tariness.
`We begin and end with the third element for rebutting
`the presumption of voluntariness. Richardson argues that
`he sufficiently alleged the third element of the Carmichael
`test because the Assistant Secretary’s decision to reject the
`unanimous recommendation of the ABCMR was a coercive
`act. He argues that a plaintiff may demonstrate that gov-
`ernment conduct was coercive by establishing that it was
`“wrongful.” App. Br. at 33 (citing Roskos v. United States,
`549 F.2d 1386, 1389–90 (Ct. Cl. 1977)). He goes on to argue
`that the Assistant Secretary’s decision to reject the recom-
`mendation of the ABCMR violated Army Regulation 15-
`185, ¶ 2-13, which makes decisions “unanimously agreed to
`by the ABCMR panel” final. App. Br. at 34. According to
`Richardson, because the Assistant Secretary’s action alleg-
`edly violated an Army regulation, it was wrongful and
`therefore a coercive act under Carmichael. Id.
`Richardson’s reliance on the “wrongful” language from
`Roskos is taken out of context. In Roskos, the Court of
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`Case: 22-2068 Document: 55 Page: 6 Filed: 03/21/2024
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`6
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`RICHARDSON v. US
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`Claims stated that “[a]n action is not voluntary if it is pro-
`duced by government conduct which is wrongful.” Roskos,
`549 F.2d at 1389–90. It is insufficient for the government
`conduct merely to be wrongful; the plaintiff’s actions, i.e.,
`his retirement, must be the product of that government ac-
`tion. See id. (finding that the earlier unauthorized reas-
`signment of Roskos directly caused his later retirement).
`Richardson does not plead any facts, even taken as true
`that would satisfy this element because his retirement
`could not plausibly have been the product of the Assistant
`Secretary’s decision. The facts alleged show the Assistant
`Secretary’s decision occurred long after Richardson’s deci-
`sion to retire. He applied for early retirement on April 5,
`2017, which was granted effective on November 30, 2017.
`Decision at *4. He did not petition the ABCMR until May
`22, 2017, approximately seven weeks after he applied for
`earlier retirement. Id. The Assistant Secretary’s first de-
`cision that reviewed and rejected the recommendations of
`the ABCMR did not occur until June 21, 2018, J.A. 1036,
`and the remand decision did not occur until August 25,
`2020, J.A. 1030. Richardson has therefore failed to allege
`facts that could establish the third element of the Carmi-
`chael test, that the circumstances of his retirement were
`the result of the government’s coercive acts. See Carmi-
`chael, 298 F.3d at 1372. That is true regardless whether
`or not the Assistant Secretary violated Army Regulation
`15-185, ¶ 2-13 by rejecting a unanimous recommendation
`of ABCMR. We note that as early as 1975, our predecessor
`court recognized that “[t]his court has repeatedly upheld
`the voluntariness of resignations where they were submit-
`ted to avoid threatened termination for cause.” Christie v.
`United States, 518 F.2d 584, 588 (Ct. Cl. 1975).
`Because Richardson must allege facts that could plau-
`sibly establish each element of the Carmichael test, we
`need not address his arguments for the other two elements.
`The Claims Court therefore correctly determined that his
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`RICHARDSON v. US
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`7
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`retirement was voluntary and dismissed his claims under
`the Military Pay Act for failure to state a claim.
`We next will address the Claims Court’s dismissal of
`his remaining claims for a lack of subject matter jurisdic-
`tion. We review grant of a motion to dismiss for a lack of
`subject-matter jurisdiction de novo and accept well-pleaded
`factual allegations as true. Inter-Tribal Council of Ariz.,
`Inc. v. United States, 956 F.3d 1328, 1338 (Fed. Cir. 2020).
`The plaintiff has the burden to establish subject-matter ju-
`risdiction by a preponderance of the evidence. Id. at 1337.
`The Tucker Act grants the Claims Court jurisdiction
`over claims for the correction of military records only if
`they are “incident of and collateral to” an award of money
`damages. 28 U.S.C. § 1491(a)(2); Voge v. United States,
`844 F.2d 776, 781 (Fed. Cir. 1988). If there is no reason to
`consider the requests for equitable relief when deciding the
`claim for money damages, the Claims Court lacks subject
`matter jurisdiction over those requests. Voge, 844 F.2d at
`781.
`To have subject matter jurisdiction over Richardson’s
`claims for correction of his military records, they must be
`necessary for the court to consider to resolve his claim for
`money damages under the Military Pay Act. He argues
`that the Claims Court has jurisdiction over those requests
`because there is a nexus between those requests and his
`claim for back pay. App. Br. at 29. According to Richard-
`son, the titling action started a chain of events that led to
`the GOMOR, the adverse OER, and the eventual denial of
`his promotion and resulting separation. Id. However, he
`does not allege that the titling action and subsequent de-
`rogatory administrative filings automatically triggered his
`non-promotion and subsequent separation, and the merits
`of a decision to promote members of the military is not sub-
`ject to judicial review. Lindsay, 295 F.3d at 1257. Further-
`more, as discussed above, it was unnecessary to consider
`his requests for correction of his military record to resolve
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`Case: 22-2068 Document: 55 Page: 8 Filed: 03/21/2024
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`RICHARDSON v. US
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`his back pay claim stemming from his allegedly wrongful
`retirement because his retirement was voluntary. Those
`requests therefore have no bearing on the government’s ob-
`ligation to pay damages for his claim under the Military
`Pay Act. See Voge, 844 F.2d at 781 (determining that “re-
`view of [plaintiff’s] service records cannot be justified as ‘in-
`cident of and collateral to’” an award of money damages
`when it is unnecessary to consider them to resolve the mon-
`etary claim). The Claims Court therefore properly dis-
`missed his requests for correction of his military records for
`a lack of subject matter jurisdiction.
`CONCLUSION
`We have considered Richardson’s remaining argu-
`ments and find them unpersuasive. For the foregoing rea-
`sons, we affirm.
`
`AFFIRMED
`COSTS
`
`No costs.
`
`