ATTIA v. UNITED STATES

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
ANIS ATTIA, )
)
Plaintiff, )
)
v. ) Case No. 21-cv-01063 (APM)
)
UNITED STATES OF AMERICA, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
I. INTRODUCTION
Pro se Plaintiff Anis Attia, a former Staff Sergeant in the Army, brings this action against
Defendant United States of America for deprivation of his constitutional rights and other violations
of law allegedly committed by the Army Board for Correction of Military Records (the “Correction
Board”). Plaintiff appears to seek relief pursuant to the Administrative Procedure Act (APA),
Tucker Act and Little Tucker Act, and the court’s general equity jurisdiction. Both parties move
for summary judgment. For the reasons that follow, Plaintiff’s motion is denied, and Defendant’s
motion is granted.
II. BACKGROUND
Plaintiff served three tours in Iraq, including one from December 8, 2007, to March 15,
2009. AR006.1 Shortly after his deployment on this tour, Military Police detained Plaintiff for
reportedly leaving “naked pictures” on a public computer and possessing several devices
containing many pornographic images and videos in violation of a General Order prohibiting
1 Defendant’s Appendix containing portions of the Administrative Record is at ECF Nos. 49-1 and 49-2. Citations to
the Administrative Record will be to “AR” and the last three numbers of the Administrative Record Bates number.
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pornography. AR010. On October 25, 2008, after a hearing, an administrative separation board
(ASB) recommended that Plaintiff be discharged from the Army “under honorable conditions
(General)” for a pattern of misconduct. AR013. The Army administratively discharged him
accordingly on April 14, 2009. AR014.
Plaintiff thereafter petitioned the Correction Board for reinstatement, among other relief,
and on December 6, 2012, the Correction Board voided Plaintiff’s discharge on the basis that the
ASB was improperly convened. AR080–081. The Correction Board noted that, although this was
a denial of due process, it was not proof of exoneration. AR081. Plaintiff was reinstated in the
Army with back pay but was denied expungement of his records and payment of non-cash
compensation. AR082.
Plaintiff retired from active duty in 2015 but continued petitioning the Correction Board to
alter his service record. AR004–005. On November 9, 2020, the Correction Board amended its
earlier ruling by referring him to a Standby Advisory Board (STAB) to consider retroactive
promotion and pay and issuing a statement of non-rated time. AR403, 528, 554. The STAB did
not select Plaintiff for promotion. AR021. Finally, on November 1, 2024, the Correction Board
considered additional claims from Plaintiff. AR003–025. The Correction Board determined that
it could not award non-cash benefits, Plaintiff was not entitled to discretionary awards, Plaintiff
did not demonstrate that the content of his prior reports was substantially incorrect, there were no
procedural faults with the STAB not promoting him, and there was no error or injustice that
warranted a declaration of full exoneration. AR020–022.
Plaintiff filed the instant suit on April 14, 2021. See generally Compl., ECF No. 1
[hereinafter Compl.]. Plaintiff then amended his complaint on October 10, 2022, and a second
time on June 15, 2025. See generally Am. Compl., ECF No. 6 [hereinafter FAC]; Second Am.
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Compl., ECF No. 36 [hereinafter SAC]. The complaints are hard to discern, but the court
understands Plaintiff to be asserting the following: (1) his inability to collect interest on back pay
violates equal protection under the Fifth Amendment, SAC ¶ 30; FAC ¶ 17; (2) the Army’s refusal
to include the monetary value of certain fringe benefits constitutes unlawful deprivation of
property without due process under the Fifth Amendment, SAC ¶ 30; FAC ¶ 18; (3) the Army
violated the APA by refusing to promote or bestow awards upon him because of his alleged
misconduct, SAC ¶ 28; and (4) the Army violated the APA by maintaining records showing his
discharge was overturned due to procedural reasons only, due to the Correction Board’s failure to
consider nonfrivolous arguments, id. ¶¶ 24–29.2 Plaintiff moves for summary judgment.
See generally Pl.’s Mot. for Summ. J., ECF No. 40 [hereinafter Pl.’s Mot.]. Defendant cross-
moves for summary judgment or, in the alternative, to dismiss. See generally Def.’s Mot. to
Dismiss & Cross-Mot. for Summ. J., ECF No. 41 [hereinafter Def.’s Mot.].
III. LEGAL STANDARD
In APA cases, “summary judgment is the mechanism for deciding whether as a matter of
law an agency action is supported by the administrative record and is otherwise consistent with
the APA standard of review.” Louisiana v. Salazar, 170 F. Supp. 3d 75, 83 (D.D.C. 2016). In such
cases, the district court “sits as an appellate tribunal,” and “[t]he entire case on review is a question
of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (internal
quotation marks omitted). The court’s factual review does not extend beyond the administrative
2 Plaintiff explicitly brings his awards and records claims in his Second Amended Complaint. SAC ¶¶ 24–29.
However, he does not detail his two constitutional claims in his Second Amended Complaint, instead stating that he
“maintains his claims” for interest and fringe benefits from his First Amended Complaint. Id. ¶ 30. Ordinarily,
amended complaints supersede prior complaints, but courts often permit pro se amended complaints that specifically
reference prior filings to serve as addenda rather than replacements. See Webb v. U.S. Veterans Initiative, 993 F.3d
970, 973 (D.C. Cir. 2021) (finding pro se amended complaint sufficiently referred to claim in prior complaint to
incorporate claim by reference). The court permits Plaintiff’s two constitutional claims in his First Amended
Complaint to be preserved by their reference in the Second Amended Complaint.
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record, and “its role is limited to determining whether or not as a matter of law the evidence in the
administrative record permitted the agency to make the decision it did.” Philip Morris USA Inc.
v. FDA, 202 F. Supp. 3d 31, 45 (D.D.C. 2016) (cleaned up). The APA requires a court to set aside
an agency action that is “arbitrary, capricious, an abuse of discretion,” in excess of statutory
authority, contrary to constitutional rights, or “without observance of procedure required by law.”
5 U.S.C. § 706(2). Judicial review of determinations made by the Correction Board follows “an
unusually deferential application of the arbitrary or capricious standard of the APA,” Piersall v.
Winter, 435 F.3d 319, 324 (D.C. Cir. 2006) (internal quotation marks omitted), as the function of
the court “is not to serve as a super correction board that reweighs the evidence,” Charette v.
Walker, 996 F. Supp. 43, 50 (D.D.C. 1998).
IV. DISCUSSION
A. Jurisdiction
Plaintiff first seeks a declaration that the Army violated his constitutional rights by not
affording him the value of interest and fringe benefits. Defendant argues that the Tucker Act
precludes the court’s subject matter jurisdiction over these claims. Def.’s Mot., Def.’s Mem. of P.
& A. in Supp. of Def.’s Mot., ECF No. 41-1 [hereinafter Def.’s Mem.], at 11–14.
The Tucker Act confers exclusive jurisdiction to the Court of Federal Claims over
monetary claims against the United States that exceed $10,000. Kidwell v. Dep’t of Army, Bd. for
Corr. of Mil. Recs., 56 F.3d 279, 284 (D.C. Cir. 1995); see 28 U.S.C. §§ 1346(a), 1491. Monetary
claims can be brought against the federal government only if the United States has waived its
sovereign immunity from suits through a contract, a money-mandating statute, or constitutional
provision. United States v. Testan, 424 U.S. 392, 398, 400 (1976). This Circuit follows a “bright
line rule” that Tucker Act jurisdiction applies when the plaintiff requests a monetary award in the
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complaint. Kidwell, 56 F.3d at 285. Such a request could be made “explicitly or in essence,” as a
plaintiff may not engage in “artful” pleading to remain in district court by disguising a monetary
request as equitable relief. Id. at 284 (internal quotation marks omitted). However, an equitable
claim is not “in essence” a monetary claim merely because a plaintiff “hints at some interest in a
monetary reward from the federal government or because success on the merits may obligate the
United States to pay the complainant.” Id. Thus, the Tucker Act does not apply to equitable claims
with “considerable value independent of any future potential for monetary relief.” Id. (internal
quotation marks omitted).
The court previously held that Plaintiff’s Fifth Amendment fringe benefits claim was not
an explicit demand for money. Mem. Op. & Order, ECF No. 14, at 4. But Defendant now contends
that Plaintiff’s constitutional claims for equitable relief are merely dressed-up claims for monetary
damages without additional value. Def.’s Mem. at 11–14.
The court disagrees. Due process and equal protection claims involve no money-
mandating provisions, so Plaintiff’s claims cannot be heard in the Court of Federal Claims.
See Radin v. United States, 699 F.2d 681, 685 n.8 (4th Cir. 1983) (“[I]t is well settled that there is
no Tucker Act jurisdiction over a claim founded solely on a fifth amendment procedural due
process claim, because ‘[t]he Due Process Clause simply cannot be read to mandate money
damages be paid.’” (quoting Ala. Hosp. Ass’n v. United States, 656 F.2d 606, 609 (Ct. Cl. 1981))).
A plaintiff therefore cannot be sidestepping exclusive Tucker Act jurisdiction if the Court of
Federal Claims could not exercise jurisdiction in the first place. See Fisher v. United States,
402 F.3d 1167, 1173 (Fed. Cir. 2005) (“[T]he absence of a money-mandating source [is] fatal to
the [Court of Federal Claims]’s jurisdiction under the Tucker Act.”). Therefore, Plaintiff’s two
Fifth Amendment claims will be taken at face value as requests for non-compensable declarations
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of constitutionality. The court can hear such claims under the APA. See, e.g., McKoy v. Spencer,
271 F. Supp. 3d 25, 34, 36 (D.D.C. 2017) (holding that the court could consider the plaintiff’s
Fifth Amendment claim under the APA but dismissing claim insofar as it sought money
damages).3
B. Fifth Amendment Equal Protection Interest Claim
Plaintiff seemingly contends that he is subject to unconstitutional equal treatment because,
unlike in other similar circumstances, the law does not grant servicemembers who are wrongly
administratively discharged interest on back pay awards. By way of comparison, he notes that
interest payments are available to unlawfully discharged civilian employees and to
servicemembers with overturned court-martials. FAC ¶ 17; see 5 U.S.C. § 5596(b)(2) (waiver of
sovereign immunity for interest payments for unlawful personnel actions); 10 U.S.C. § 1552(c)(4)
(court-martialed servicemembers).
Equal protection claims are assessed under rational basis review unless the challenge
involves a suspect classification or infringement of fundamental constitutional rights. Mark v.
Republic of the Sudan, 77 F.4th 892, 897 (D.C. Cir. 2023). The relevant statutes therefore must
prevail “against equal protection challenge if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification.” FCC v. Beach Commc’ns, Inc., 508 U.S. 307,
313 (1993).
3 Defendant also objects to jurisdiction on Plaintiff’s education reimbursement claim. Def.’s Mem. at 12. In his
original Complaint, Plaintiff asks the court to “[d]irect the [Correction Board] to . . . correct plaintiff’s records to show
a refund for all the education debt he incurred when he failed certain courses funded by Army TA.” Compl. ¶ 27.
Here, Defendant is correct that this is explicitly and fundamentally a monetary request, so the bright line rule applies
and the court lacks jurisdiction. See Kidwell, 56 F.3d at 286; see also Van Allen v. U.S. Dep’t of Veterans Affs., 925
F. Supp. 2d 119, 125 (D.D.C. 2013) (finding request to correct records was only meaningful to extent it would permit
further monetary recovery). Regardless, the court considers this claim abandoned after Plaintiff failed to include or
reference it in his two successive amended complaints.
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A rational basis exists here. Congress’s reason not to afford interest on back pay to
servicemembers like Plaintiff who are reinstated after a wrongful administrative separation may
simply be that Congress did not believe such circumstances warranted it. Congress could have
reasoned that payment of interest on back pay was warranted to fully remedy the particular harm
caused by a criminal conviction, even if later set aside. And it could have viewed such payments
as appropriate for civilian employees who lose wages for discriminatory reasons. Plaintiff’s equal
protection claim therefore fails. Cf. Neczypor v. United States, No. 24-1155, 2025 WL 658352, at
*3 (Fed. Cl. Feb. 28, 2025) (holding that there was no waiver of sovereign immunity under
10 U.S.C. § 1552 for back pay interest claims other than for those whose court-martial convictions
are set aside even if it would create “‘absurd’ results” because “policy questions are for Congress
to decide, not [the] Court”).
C. Fifth Amendment Due Process Fringe Benefits Claim
Plaintiff asserts that fringe benefits—“health and dental insurance, quality of life programs,
and Commissary and Exchange benefits”—are used by the Army to increase members’
compensation, establishing a property interest for military members. FAC ¶ 18. Plaintiff argues
that refusing to include the value of such benefits in back pay to improperly discharged
servicemembers constitutes a deprivation of a property right. Id.; Pl.’s Mot. at 3.
In assessing a due process property rights claim, courts “apply a familiar two-part inquiry
[to] determine whether the plaintiffs were deprived of a protected interest, and, if so, whether they
received the process they were due.” Barkley v. U.S. Marshals Serv. ex rel. Hylton, 766 F.3d 25,
31 (D.C. Cir. 2014) (internal quotation marks omitted). Property interests are not established in
the Constitution but stem from independent sources of right. Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 577 (1972). To demonstrate a property right, one “must have more than an abstract
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need or desire” and “more than a unilateral expectation of it. He must, instead, have a legitimate
claim of entitlement to” the asserted property. Id.
Plaintiff fails to establish that he has a property right in the fringe benefits, asserting only
that their dollar amount is advertised to recruits. See FAC ¶ 18. Even if Plaintiff had offered
substantive arguments to that point, the weight of authority tips against him, as courts generally
do not regard government employment benefits as property under the Fifth Amendment. See, e.g.,
Smith v. Harvey, 541 F. Supp. 2d 8, 15–16 (D.D.C. 2008) (“[Plaintiff] has suffered no violation of
her right not to be deprived of property without due process because there is no constitutionally-
protected property interest in continued military service or the employment benefits that come with
military service.”); D.C. Ret. Bd. v. United States, 657 F. Supp. 428, 432–33 (D.D.C. 1987) (“It is
uniformly held that such [statutory retirement and disability] benefits are not ‘property’ sufficient
to trigger substantive constitutional protection.”). Consequently, the lost value of fringe benefits
cannot support a due process claim, and Defendant is awarded summary judgment.
D. APA Promotion and Awards Claim
Plaintiff argues that “the [Correction Board] is justifying its refusal to promote [Plaintiff]
and bestow upon him awards and decoration because of the false charges alleged against him.”
SAC ¶ 28. Insofar as Plaintiff is asking the court to review the merits of the Army’s refusal to
promote him, such a claim is nonjusticiable. See Reilly v. Sec’y of Navy, 12 F. Supp. 3d 125, 140
(D.D.C. 2014). Plaintiff later insists, however, that he is not asking the court to order the Army to
promote him or bestow awards upon him but rather to direct the Army to “come up with a fair way
to evaluate him” or adjust its ordinary procedures to accommodate his unique circumstances.
Pl.’s Reply in Supp. of his Pl.’s Mot. & in Opp’n to Def.’s Mot., ECF No. 45 [hereinafter Pl.’s
Reply], ¶¶ 7–10. Plaintiff does not identify any statutes or other provision that would compel the
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Army to adjust its procedures for persons in his circumstances, see generally SAC; Pl.’s Mot., nor
can the court say it was arbitrary and capricious for the Army to use its ordinary standards for
Plaintiff without accommodations. Plaintiff does not provide any evidence beyond conclusory
statements that the STAB relied on expunged records in deciding not to promote him or provide
him awards. See SAC ¶ 28. As Plaintiff does not demonstrate how his non-selection violates the
APA, Defendant is awarded summary judgment as to this claim.
E. APA Failure to Exonerate Claim
Finally, Plaintiff contends that he is entitled to a “full exoneration,” Pl.’s Mot. at 3, which
he alleges is impossible “[a]s long as the record is not fully corrected.” FAC ¶ 14. When pressed
by Defendant on which record Plaintiff actually seeks corrected, Plaintiff does not delve into
particulars but instead states that he believes the whole investigation leading to his separation
involved fabricated charges and that he wants to be substantively cleared of wrongdoing.
Pl.’s Reply ¶ 5. The court understands Plaintiff’s claim to take issue with statements like this in
the Correction Board record of proceedings: “[I]t appears that the applicant was technically denied
due process—as opposed to proof of exoneration for his misconduct—and is therefore entitled to
reinstatement in the Regular Army . . . .” AR081.
Plaintiff argues that the Correction Board “ignor[ed] the elephant in the room” by
neglecting to exonerate him based on the ASB “fail[ing] to present a list of the evidence,” “to state
their findings,” “to disclose how the evidence weighted [sic] against or for the plaintiff,” “mention
what they found,” or see how his due process rights were stampeded by shifting the burden of
proof. SAC ¶¶ 24, 27. But these arguments appear to be assertions that the ASB relied on unfair
procedures when recommending he be discharged, not that he did not engage in the misconduct
alleged. The Correction Board vacated Plaintiff’s discharge because procedural errors denied him
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due process. AR081. It was well within the Board’s discretion not to also exonerate him based
on that error.
Plaintiff further claims that the Correction Board relied on dubious witness reports alleging
that the image of the naked man on the public computer was him rather than favoring an additional
witness who did not believe Plaintiff was in the picture. SAC ¶ 26. Regardless of whether Plaintiff
was the naked man, Plaintiff also was found to be in possession of over 1,000 pornographic images
and over 100 pornographic videos on various personal devices. AR010. So, even if Plaintiff is
right about the public computer image, that successful contention alone would not exonerate him.
Further, to engage with disputes over the relative credibility of witnesses would be to reweigh the
evidence, which is not the court’s role. See Charette, 996 F. Supp. at 50. Decisions of military
corrections boards are entitled to an “unusually deferential application of the arbitrary or capricious
standard of the Administrative Procedure Act.” Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir.
2000) (internal quotation marks omitted). Plaintiff does little more than disagree with the
Correction Board’s conclusions. He therefore has failed to show that the Correction Board’s
decision not to exonerate him was arbitrary and capricious.
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V. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Summary Judgment, ECF No. 40, is
denied, and Defendant’s Motion to Dismiss and Cross-Motion for Summary Judgment,
ECF No. 41, is granted.
A separate final appealable order accompanies this Memorandum Opinion.
Dated: February 26, 2026 Amit P. Mehta
United States District Judge
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