Sean J. Dillon v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SEAN J. DILLON,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-2307
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-02016-RAH, Judge Richard A. Hertling.
______________________
Decided: September 3, 2025
______________________
SEAN J. D ILLON, Fort Leavenworth, KS, pro se.
K YLE SHANE B ECKRICH , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
ERIC P. BRUSKIN, P ATRICIA M. MCCARTHY , YAAKOV R OTH .
______________________
Before L OURIE, T ARANTO, and CUNNINGHAM , Circuit
Judges.
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DILLON v. US 2
P ER CURIAM .
Sean J. Dillon filed a complaint against the United
States in the Court of Federal Claims (Claims Court). As
now relevant, he alleged that he was improperly subject to
a court-martial after he had been medically retired from
the United States Army, causing him to lose retirement
benefits, and he sought back pay consisting of the lost ben-
efits. The Claims Court dismissed the complaint for lack
of subject matter jurisdiction and failure to state a claim
upon which relief could be granted. Dillon v. United States,
No. 21-cv-02016, 2024 WL 3262822, at *5–8 (Fed. Cl.
July 1, 2024) (Dillon CFC I); Dillon v. United States,
No. 21-cv-02016, 2024 WL 3949062, at *1–2 (Fed. Cl.
Aug. 27, 2024) (denying reconsideration) (Dillon CFC II).
Mr. Dillon appeals. We affirm.
I
A
Mr. Dillon enlisted in the Army in 1996, served in both
Iraq and Afghanistan, and suffered multiple combat-re-
lated injuries. Complaint, Dillon v. United States, No. 21-
cv-02016 (Fed. Cl.), ECF No. 1, at 4 (Complaint); Govern-
ment Supplemental Appendix at 42–43 (S. Appx.). Because
of those injuries, in November 2014 the Army approved Mr.
Dillon for medical retirement, with the Secretary of the
Army ordering that he be retired by November 30, 2015.
Complaint at 4–5. On September 11, 2015, pursuant to the
Secretary’s order, Mr. Dillon was sent an official notice that
his retirement would begin November 29, 2015. Motion to
Dismiss, Dillon v. United States, No. 21-cv-02016 (Fed.
Cl.), ECF No. 10-1 at 3–4 (Motion to Dismiss). A discharge
form gave the same date. S. Appx. at 39–40.
On November 3, 2015, however, the Army revoked Mr.
Dillon’s retirement orders. Motion to Dismiss, ECF
No. 10-1, at 2, 5; see Complaint at 9. On November 25, the
Army notified Mr. Dillon that he was being charged with
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DILLON v. US 3
violating Article 120 of the Uniform Code of Military Jus-
tice, which proscribes various sex crimes. Complaint at 5.
He was tried before a court-martial for aggravated sexual
assault of a child in April 2016. Id. at 6; see Dillon
v. United States, No. Army 20160324, 2019 WL 302073, at
*1 (Army Ct. Crim. App. Jan. 17, 2019) (Dillon ACCA).
During his trial, Mr. Dillon argued through counsel
that the court-martial lacked personal jurisdiction over
him because he had already been medically retired from
the Army. Complaint at 6. To substantiate that argument,
he provided a government record that he received in April
2016 indicating November 29, 2015, as his date of retire-
ment from active service, see S. Appx. at 48, and tax forms
showing that he received retirement pay in 2016 and 2017,
see S. Appx. at 44–47. The court-martial rejected Mr. Dil-
lon’s contentions, finding that he was never actually retired
and that the purported notice of his retirement was “inva-
lid.” Complaint at 6. He was convicted of aggravated sex-
ual assault of a child, among other charges, in April 2016,
id.; see Dillon ACCA, at *1–2, and sentenced to confine-
ment for 30 years, S. Appx. at 41.
Mr. Dillon appealed his conviction to the Army Court
of Criminal Appeals and pressed the same jurisdictional
argument. Complaint at 6; Dillon ACCA, at *1 n.2. That
court held that his argument was “meritless” because,
“[a]lthough [Mr. Dillon] was close to retirement before any
charges were preferred, he was not, in fact, retired.” Dillon
ACCA, at *1 n.2. The United States Court of Appeals for
the Armed Forces denied Mr. Dillon’s petition to review
that decision. United States v. Dillon, 79 M.J. 189, 189
(C.A.A.F. 2019). He was dishonorably discharged in July
2020. Complaint at 6–7; S. Appx. at 42–43.
B
On October 7, 2021, Mr. Dillon filed his complaint to
the Claims Court seeking declaratory and injunctive relief
and retirement back pay. Complaint at 9–10. He alleged
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DILLON v. US 4
violations of the Fifth Amendment’s Due Process Clause, of
10 U.S.C. §§ 1201–1202, and of Army Regulation 600-8-24
¶ 6-23(a). Complaint at 7–9. The government moved to
dismiss for lack of subject-matter jurisdiction and failure
to state a claim upon which relief could be granted, and the
Claims Court granted the motion. See generally Dillon
CFC I.
The Claims Court construed the complaint as contain-
ing two claims: “first, that [Mr. Dillon] was medically re-
tired on November 30, 2015, such that the 2016 court-
martial lacked jurisdiction . . . [, and] second, even if the
2016 court-martial had jurisdiction, governing law none-
theless required that the plaintiff be medically re-
tired . . . .” Id. at *5. Noting its limited power to review
the findings of a court-martial, the Claims Court held that,
in the absence of a showing of a “significant constitutional
defect[ ]” or lack of “fundamental fairness,” it did not have
jurisdiction to review the court-martial’s determination
that Mr. Dillon had not been retired. Id. at *6 (quoting
Matias v. United States, 19 Cl. Ct. 635, 642 (1990), af-
firmed, 923 F.2d 821 (Fed. Cir. 1990)). It further held that,
although Mr. Dillon’s claim for retirement back pay under
10 U.S.C. § 1201 fell within its jurisdiction, Mr. Dillon had
not plausibly alleged entitlement to back pay because “a
disabled soldier is not owed retirement pay until he is re-
tired,” and Army Regulation 635-40 ¶ 4-2 (2006) (the con-
trolling version for Mr. Dillon’s claim) prevents a soldier
from being medically retired while under a sentence of pu-
nitive discharge. Dillon CFC I, at *7. The Claims Court
subsequently denied what it construed as a motion to alter
the judgment under Rule 59 of the Rules of the United
States Court of Federal Claims. Dillon CFC II, at *1–6.
Mr. Dillon timely appealed. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(3).
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DILLON v. US 5
II
Because the Claims Court’s dismissal of the complaint
for lack of subject matter jurisdiction and for failure to
state a claim here does not rest on a resolution of factual
disputes, we review the dismissal de novo. Taylor
v. United States, 959 F.3d 1081, 1086 (Fed. Cir. 2020). Like
the Claims Court, we “take all factual allegations in the
complaint as true and construe the facts in the light most
favorable to the non-moving party.” Inter-Tribal Council
of Arizona, Inc. v. United States, 956 F.3d 1328, 1338 (Fed.
Cir. 2020) (internal quotation marks and citation omitted).
Pro se complaints are “h[e]ld to less stringent standards
than formal pleadings drafted by lawyers,” Haines
v. Kerner, 404 U.S. 519, 520 (1972), but pro se litigants
must meet the same “jurisdictional requirement[s]” as all
others, Kelley v. Secretary, United States Department of La-
bor, 812 F.2d 1378, 1380 (Fed. Cir. 1987).
The Tucker Act defines the jurisdiction of the Claims
Court to include
any claim against the United States founded either
upon the Constitution, or any Act of Congress or
any regulation of an executive department, or upon
any express or implied contract with the United
States, or for liquidated or unliquidated damages
in cases not sounding in tort.
28 U.S.C. § 1491(a)(1). The Claims Court has jurisdiction
to hear claims under 10 U.S.C. § 1201, which is money-
mandating for the purposes of the Tucker Act. See Fisher
v. United States, 402 F.3d 1167, 1174–75 (Fed. Cir. 2005)
(citing Sawyer v. United States, 930 F.2d 1577 (Fed. Cir.
1991)). Although Mr. Dillon’s claim rests on a collateral
attack on the judgment of a court-martial—which deter-
mined that he was not in fact ever retired—we have viewed
the presence of such a collateral attack not so much as de-
feating Tucker Act jurisdiction (when a claim is made un-
der a statute authorizing claims for back pay) as
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DILLON v. US 6
establishing a high standard for prevailing on the merits.
See Matias v. United States, 923 F.2d 821, 822–26 (Fed.
Cir. 1990). “[Q]uestions of fact resolved by military courts
are not subject to collateral attack,” id. at 826, and such an
attack can succeed only in “narrow” circumstances, where
the claimant “demonstrate[s] convincingly that in the
court-martial proceedings there has been such a depriva-
tion of fundamental fairness as to impair due process,”
Bowling v. United States, 713 F.2d 1558, 1560–61 (Fed.
Cir. 1983). Mr. Dillon does not meet the demanding stand-
ard in this setting for having a plausible claim, as required
at the pleading stage.
Mr. Dillon argues that a court-martial simply has no
power to determine whether a soldier is retired. Dillon In-
formal Reply Br. at 15–17, 19–20 (citing United States
v. Sumrall, 45 M.J. 207, 210 (C.A.A.F. 1996) and Clinton
v. Goldsmith, 526 U.S. 529, 540 (1999)). At least to the ex-
tent that the issue is not a jurisdictional one, the failure to
present this argument until the reply brief in this court
means that the argument is untimely. In any event, the
argument is unsupported. The cited decisions say at most
that a court-martial cannot enjoin a retirement, see Gold-
smith, 526 U.S. at 535, or review the Secretary’s decision
to deny (or grant) retirement, see Sumrall, 45 M.J. at 210.
They do not deny that a court-martial may find as a fact
that a soldier has been—or has not been—retired. A denial
of such authority would be surprising: A court-martial, like
a civilian court, must have the power to find facts deter-
mining its own jurisdiction, including whether the accused
is subject to the Uniform Code of Military Justice. See
United States v. Oliver, 57 M.J. 170, 172 (C.A.A.F. 2002)
(“Jurisdiction is an interlocutory issue, to be decided by the
military judge.”).
Mr. Dillon also insists that he was medically retired be-
fore his conviction because, as a matter of law, his Army
superiors had no authority to revoke a medical discharge
order (like the September 2015 order), see, e.g., Dillon
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DILLON v. US 7
Informal Br. at 5–9, so that he was medically discharged
by operation of law in late November 2015, regardless of
the intervening revocation, id. at 17; see also Dillon Infor-
mal Reply Br. at 12–21. These are substantially the same
arguments that he made to, and that were rejected by, the
court-martial, and later by the Army Court of Criminal Ap-
peals and the Claims Court. See Complaint at 6; Dillon
ACCA, at *1 n.2; Dillon CFC I, at *7–8. But he “does not
identify any specific constitutional defects that infected his
court-martial proceedings,” where, as his own complaint
establishes, he was represented by counsel, had the oppor-
tunity to raise his claim of jurisdictional error, and had ac-
cess to multiple levels of appeal. Dillon CFC I, at *6;
Complaint at 6. Mr. Dillon’s jurisdictional claims have re-
ceived “fair consideration,” as due process requires. Burns
v. Wilson, 346 U.S. 137, 144 (1953); see also Mathews v. El-
dridge, 424 U.S. 319, 333 (1976) (“The fundamental re-
quirement of due process is the opportunity to be heard at
a meaningful time and in a meaningful manner.” (internal
quotation marks and citations omitted)). He has not met
the demanding standard for prevailing in a collateral at-
tack.
In addition, Mr. Dillon has not shown error in the
Claims Court’s ruling that, on the facts alleged in his com-
plaint, Mr. Dillon, once he was convicted, was ineligible for
medical retirement in light of Army Regulation 635-40
¶ 4-2 (2006) (AR 635-40), which provides that “a [s]oldier
may not be referred for, or continue, disability processing
if under sentence of dismissal or punitive discharge.” See
Dillon CFC I, at *7–8; Dillon CFC II, at *5. The statutes
at issue do not show otherwise. Section 1201 of Title 10
provides that “[u]pon a determination by the Secre-
tary . . . that a[n eligible service] member . . . is un-
fit . . . because of physical disability . . . the Secretary may
retire the member” if the Secretary also determines that
the disability is of a “permanent nature and stable,” among
other requirements. 10 U.S.C. § 1201 (emphasis added).
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DILLON v. US 8
Section 1202 provides a path for service members with dis-
abilities not determined to be “permanent” or “stable” to
nevertheless be medically retired, by first being placed on
the “temporary disability retired list,” id. § 1202, and then
being periodically reevaluated, see id. § 1210(a). Sec-
tion 1202 directs that the Secretary “shall” place a service
member on the temporary disability retired list “upon [the
Secretary’s] determination” that the member would be
“qualified” for retirement under section 1201. Id. § 1202
(emphasis added). None of that forecloses the qualifica-
tion-limiting provision of Army Regulation 635-40 ¶ 4-2
(2006), which prevents a soldier “under [a] sentence of dis-
missal or punitive discharge” from “continu[ing ]disability
processing.”
Mr. Dillon argues that, when the Army revoked his re-
tirement orders on November 3, 2015, he had already com-
pleted “disability processing,” as a matter of law, because
he had completed such processing when his retirement or-
der issued in September. See Dillon Informal Br. at 3–5;
Dillon Informal Reply Br. at 6–11. We disagree. While the
issuance of retirement orders corresponds to what the
Army calls a “final disposition” of disability evaluation, see
AR 635-40 ¶ 4-24(b) (2006), the regulatory issue is when
disability “processing” ends, and “processing,” naturally
understood, does not end with evaluation. The term, in its
ordinary meaning, extends as far as the actual discharge.
We see no good reason for a different interpretation.
Indeed, context undermines the suggestion that the evalu-
ation step ends processing. AR 635-40, which pertains to
disability separations, includes an appendix titled “Person-
nel Processing Actions” listing events that occur during a
disability retirement. See AR 635-40 Appendix E (2006).
That list includes entries for “delivery of separation forms”
and “retirement honors,” which are both logically and tem-
porally subsequent to the final disposition of the disability
evaluation. Id. Appendix E-9–E-14 (2006). And Mr. Dillon
offers no good reason why an action that is serious enough
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DILLON v. US 9
to disqualify a member for the retirement benefit at issue,
an action taken while the member is still in uniform,
should be exempt from that consequence just because the
retirement discharge has already been approved, though it
has not yet occurred.
We have recognized that “military disability retire-
ment benefits under 10 U.S.C. § 1201 are nondiscretion-
ary,” but that recognition means only that, “if a service
member is eligible under 10 U.S.C. § 1201,” and retired un-
der that authority, then benefits become mandatory. Kelly
v. United States, 69 F.4th 887, 900 (Fed. Cir. 2023) (citing
Sawyer, 930 F.2d at 1580) (emphasis added). Such compul-
sion does not deprive the Secretary of authority, with a
range of discretion, to make the “determination” that the
service member is unfit and to decide not to “retire the
member.” 10 U.S.C. § 1201(a); see Sawyer, 930 F.2d at
1580 (“[Section 1201] permits the Secretary to terminate a
member’s active duty early.” (emphasis added)). Sec-
tion 1202 incorporates the same discretion by reference be-
cause it applies only “[u]pon a determination by the
Secretary” that the service members concerned otherwise
meet the requirements of section 1201. 10 U.S.C. § 1202.
Here, moreover, the statutory language itself suggests
that Mr. Dillon became ineligible to be retired when he was
convicted. See Dillon CFC I, at *7. Section 1201 by its
terms applies to service members “entitled to basic pay,”
subject to narrow exceptions not relevant here. 10 U.S.C.
§ 1201(c). Section 1202 incorporates that limitation by re-
quiring that the service member be “qualified for retire-
ment under section 1201.” 10 U.S.C. § 1202. But Mr.
Dillon, by dint of his conviction, was no longer entitled to
basic pay. See 10 U.S.C. § 858b (imposing “forfeiture of
pay” as a consequence of certain court-martial sentences).
That conclusion would make section 1201 inapplicable. At
a minimum, the Secretary, following the regulation at is-
sue, could readily deny the medical retirement.
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DILLON v. US 10
III
We have considered Mr. Dillon’s remaining arguments
and find them unpersuasive. We affirm the Claims Court’s
dismissal of Mr. Dillon’s complaint.
The parties shall bear their own costs.
AFFIRMED
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