Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Yelverton v. Department of Army

United States District Court, E.D. Pennsylvania

September 5, 2014

DEPARTMENT OF THE ARMY, et al. Defendants. pro se,




Before this Court is a motion to dismiss filed by Defendants Department of the Army and the Army Review Boards Agency (collectively, "Defendants") pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). [ECF 10]. Plaintiff James Z. Yelverton ("Plaintiff"), acting pro se, has filed an opposition. [ECF 11]. The motion is ripe for disposition.

For the reasons stated herein, the motion to dismiss is granted.


On September 23, 2013, Plaintiff, acting pro se, filed a complaint which purports to assert claims for monetary damages against Defendants for wrongfully "changing" his discharge classification obtained from the United States Army in 1969, from "bad conduct discharge" to "other than honorable discharge."[1] [ECF 5]. For the purpose of the motion to dismiss, this Court must accept, as true, all relevant and pertinent factual allegations in Plaintiff's complaint, which are briefly summarized as follows:[2]

On July 11, 1968, Plaintiff was convicted by a General Court-Martial of various offenses, and received the following sentence from a military tribunal: a "bad conduct discharge, " forfeiture of all pay and allowances, confinement to hard labor for ten (10) months and a demotion to the grade of E-1. The convening authority approved the sentence on September 6, 1968. The findings and sentence were affirmed by the Military Board of Review on April 1, 1969.
According to Plaintiff, on May 8, 1969, Plaintiff's "bad conduct discharge" was wrongfully changed to the more severe discharge category of "other than honorable."


A motion to dismiss under Rule 12(b)(1) challenges the existence of subject matter jurisdiction. As the party invoking this Court's jurisdiction, Plaintiff bears the burden of proving that the requisite jurisdictional requirements are met. Development Fin. Corp. v. Alpha Housing & Health Care, Inc., 54 F.3d 156, 158 (3d Cir. 1995); Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993). "[W]hen there is a fact question about whether a court has jurisdiction, the trial court may examine facts outside the pleadings... [b]ecause at issue in a factual 12(b)(1) motion is the trial court's jurisdiction - its very power to hear the case.'" Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997) (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). Therefore, this Court is free to consider evidence outside the pleadings to resolve factual issues bearing on the jurisdictional issue. See Gotha v. United States, 115 F.3d 176, 179 (3d Cir. 1997).

When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). The court must determine "whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief.'" Id. at 211 ( quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The complaint must do more than merely allege the plaintiff's entitlement to relief; it must "show such an entitlement with its facts." Id. (citations omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct the complaint has alleged - but it has not show[n]' - that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)) (alterations in original). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id. To survive a motion to dismiss under Rule 12(b)(6), "a plaintiff must allege facts sufficient to nudge [his] claims across the line from conceivable to plausible.'" Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 570).

Even though pleadings and other submissions by pro se litigants are subject to liberal construction and the courts are required to accept the truth of Plaintiff's well-pleaded allegations while drawing reasonable inferences in Plaintiff's favor, Wallace v. Fegan, 455 F.Appx. 137, 139 (3d Cir. 2011) (citing Capogrosso v. Sup.Ct. of N.J., 588 F.3d 180, 184 (3d Cir. 2009) (per curiam)), a pro se complaint must still "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).


Construing the complaint liberally, Plaintiff appears to challenge the categorization of his discharge as "other than honorable, " and seeks monetary damages resulting from the change. Though Plaintiff does not provide any jurisdictional basis for his claims, this Court presumes that Plaintiff intends to bring these claims under either the Tucker Act, 28 U.S.C. § 1491, or the Administrative Procedures Act, 5 U.S.C. § ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.