Wegener v. Department of the Navy

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALLEN WEGENER,
Plaintiff, 	Case No. 1:25-cv-365
v. 	Hon. Robert J. Jonker
DEPARTMENT OF THE NAVY,
Defendant.
/
REPORT AND RECOMMENDATION
On March 30, 1987, pro se plaintiff “was discharged from the Navy under other
than honorable conditions.” See Allen Craig Wegener v. Department of Navy, No. 1:88-cv-804,
1989 U.S. Dist. LEXIS 17753 (W.D. Mich. July 25, 1989) (“Wegener I”). Plaintiff contested his
discharge and sought damages in an unsuccessful lawsuit filed in 1988. Id. Now, more than 38
years after plaintiff received his discharge, plaintiff filed the present action against the Department
of Navy (“Wegener II”) seeking $10 million in damages arising from his military service and
discharge. See Compl. (ECF No. 1). 1 This matter is now before the Court on defendant’s combined
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (ECF No. 8) and plaintiff’s
motion for summary judgment (ECF No. 13). 2
1 The government refers to John Phelan, Secretary of the Navy, as a second defendant in this lawsuit. See Motion
(ECF No. 8). However, as reflected in the docket sheet, plaintiff’s complaint involves only one defendant,
“Department of Navy”. See Executed Summons for Department of Navy (ECF No. 7).
2 The Court notes that plaintiff’s motion for summary judgment is actually a response to defendants’ motion, i.e., it is
a three-page document filed “to refute Defendants [sic] brief”. See PageID.71-73.
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I. 	Plaintiff’s claim
Plaintiff’s allegations are summarized as follows. Plaintiff enlisted in the Navy in
the Delayed Entry Program in 1983 and entered active duty on January 27, 1985. Compl. (ECF
No. 1, PageID.1). 	After Boot Camp, plaintiff’s last Company Commander purposefully “mis-
transferred” him to an Air Squadron in Jacksonville, Florida and invaded plaintiff’s privacy by
obtaining his medical records. PageID.1-2. At one point, plaintiff did not board a military flight
due to a medical problem with his eardrum. PageID.2-3. 	He was charged with unauthorized
absence and two other unnamed violations, but the unauthorized absence charge was dropped.
PageID.3. In December 1986, plaintiff was promoted to Seaman. PageID.4. In February 1987,
plaintiff was accused of unauthorized absence from his duty. Id. 	Plaintiff claims that he was
“medically discharged” on March 10, 1987, but kept on active service for 20 additional days
beyond that date. Id. Plaintiff also claims he was assaulted by a first-class Petty Officer in the
barracks while trying to sleep. 	Id. 	Ultimately, plaintiff received an “Other than Honorable”
discharge on March 10, 1987. See PageID.4-5.
Plaintiff applied to the Naval Discharge Review Board (NDRB) to upgrade his
discharge to a “Medical Discharge Under Honorable Conditions,” but the NDRB denied his
petition. Id. 	Plaintiff also applied to the Board for Correction of Naval Records, which denied
his petition. Id. In Wegner II, plaintiff asks the Court to change his military record and pay him
damages, i.e., declare that he was separated on March 10, 1987, with a “Medical Discharge Under
Honorable Conditions”, 	declare that his “Other than Honorable Discharge” is “null and void”,
and enter judgment for $10 million for “hardships and emotional pain” because “[h]ad the plaintiff
not been assaulted while in uniform and obtained the kind of job he was qualified for he would
have most likely stayed in the Navy and retired.” PageID.5.
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II. 	Wegener I
As discussed, this is plaintiff’s second lawsuit regarding his military service.3
Defendants fairly summarized the previous decision in Wegener I as follows:
In that case, Plaintiff similarly alleged a claim of negligence against the Navy, a
claim to change his “other than honorable” discharge from the Navy, and a
monetary claim for back pay or disability benefits from the Navy. Id. at *1. He also
alleged a claim that the Department of Veterans Affairs erred in denying him
benefits. Id.
The factual basis for his claims included that while Plaintiff was in the
Navy, he had a medical exam that found hearing loss in his right ear but that he was
fit for general duty. Id. at *1-2. He subsequently complained of difficulty equalizing
pressure in his ears while flying, but examination found no changes and no injury
was reported. 	Id. 	He was subsequently disciplined first for missing a ship’s
movement and disobeying a lawful order, then for assaulting a member of his crew.
Id. at *2. After additional hearing tests, there was a recommendation that he be
discharged as unfit for duty due to the hearing loss, which predated his service. Id.
While that discharge was being processed, plaintiff was absent without leave for
several days; as a result, disciplinary proceedings commenced, the original
discharge was suspended, he was disciplined, and then he was discharged on March
30, 1987, under “other than honorable” conditions. Id. at *3. Later that year, he
applied to the Board for Correction of Naval Records (BCNR) to have the discharge
changed to “under honorable” conditions, but BCNR denied the request, noting that
he had not exhausted administrative remedies by first petitioning the Naval
Discharge Review Board (NDRB). Id.
This Court determined that the doctrine from Feres v. United States, 340
U.S. 135, 146 (1950) barred Plaintiff’s negligence claim because it arose out of or
was “in the course of activity incident to” military service. 	Wegener, 1989 U.S.
Dist. LEXIS 17753, at *4-5. It ruled that it lacked jurisdiction over Plaintiff’s
monetary claim against the Navy because it exceeded the $10,000 jurisdictional
threshold, so could only be brought in the Court of Federal Claims. 	Id. at *5-6.
And it concluded that he had not exhausted administrative remedies with the
NDRB, so the Court dismissed that claim. Id. at *6. It similarly dismissed his claim
against the Department of Veterans Affairs for failure to exhaust administrative
remedies. Id. at *6-7.
3 Wegner I, 1989 U.S. Dist. LEXIS 17753 at *2, includes additional factual allegations, e.g.,
On April 1, 1986, plaintiff was disciplined for missing ship’s movement and disobeying a lawful order. On
April 26, 1986, plaintiff was again disciplined, this time for assaulting a member of his ship’s crew. At the time of
his second punishment, plaintiff received a warning that subsequent violations of the Uniform Code of Military Justice
could result in discharge under other than honorable conditions and that all previous misconduct would be considered
in any future disciplinary action.
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Defendants’ Brief at PageID.26-28 (citing Wegener I, 1989 U.S. Dist. LEXIS 17753.
III. 	Discussion
A. 	This Court lacks jurisdiction for plaintiff’s tort claim which seeks
$10 million in damages against the United States arising from his
service in the Navy.
Plaintiff’s present lawsuit is a $10 million tort claim against the United States
arising from his military service and discharge in 1987, i.e., for “hardships and emotional pain”
flowing from his assault and alleged wrongfully categorized military discharge. Defendants seek
to dismiss the complaint for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).
“Federal courts are courts of limited jurisdiction” which “possess only that power authorized by
Constitution and statute.” Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375,
377 (1994). The basic statutory grants of federal-court subject-matter jurisdiction are contained
in 28 U.S.C. §§ 1331 (federal question jurisdiction) and 1332 (diversity of citizenship jurisdiction).
Arbaugh v. Y & H Corporation, 546 U.S. 500, 513 (2006). “It is to be presumed that a cause lies
outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party
asserting jurisdiction.” Kokkonen, 511 U.S. at 377 (internal citations omitted). Because plaintiff
is proceeding pro se, the Court will read his complaint indulgently. 	See Haines v. Kerner, 404
U.S. 519 (1972). However, while pro se pleadings are to be liberally construed, see Williams v.
Curtin, 631 F.3d 380, 383 (6th Cir. 2011), “this court is not required to conjure up unpled
allegations,” Dietz v. Sanders, 100 Fed. Appx. 334, 338 (6th Cir. 2004).
Defendants 	seek 	dismissal 	on 	the 	basis 	of 	sovereign 	immunity 	which 	“is
jurisdictional in nature.” 	See F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). 	“Absent a waiver,
sovereign immunity shields the Federal Government and its agencies from suit.” Id. 	“A waiver
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of sovereign immunity must be strictly construed, unequivocally expressed, and cannot be implied.
U.S. v. King, 395 U.S. 1, 4 (1969); Soriano v. U.S., 352 U.S. 270, 276 (1957).” Lumbard v. St.
Joseph County Sheriff Department, et al., No. 1:15-cv-1013, 2016 WL 316723 at *2 (W.D. Mich.
Jan. 27, 2016).
The exclusive waiver of sovereign immunity for tort actions involving the conduct
of the United States, its agencies, and its employees acting within the scope of their employment,
is found in the Federal Tort Claims Act (FTCA). 	See 28 U.S.C. § 2679. 	As the Sixth Circuit
explained,
The FTCA clearly provides that the United States is the only proper
defendant in a suit alleging negligence by a federal employee. 28 U.S.C. § 2679(a).
Failure to name the United States as defendant in an FTCA suit results in a fatal
lack of jurisdiction.
Allgeier v. United States, 909 F.2d 869, 871 (6th Cir. 1990). 	Because plaintiff’s 	complaint is
directed at the agency (the Department of Navy) rather than the United States, the Court lacks
jurisdiction to address an FTCA claim and should dismiss the lawsuit. 	See, e.g., Good v. Ohio
Edison Co., 149 F.3d 413, 418 (6th Cir. 1998) (dismissing defendant United States Coast Guard
as a party for lack of jurisdiction). Accordingly, plaintiff’s lawsuit should be dismissed for lack
of subject matter jurisdiction on this basis.
Even if plaintiff sued the United States, the Court lacks subject matter jurisdiction.
The FTCA “provides a limited sovereign immunity waiver and subject matter jurisdiction for
plaintiffs to pursue state law tort claims against the United States.” Milligan v. United States, 670
F.3d 686, 692 (6th Cir. 2012) (citing 28 U.S.C. § 1346(b)(1)). However, “[t]he FTCA, as a limited
grant of jurisdiction, excludes certain tort claims from its sovereign immunity waiver.” Id. citing
28 U.S.C. § 2680. “Because the FTCA is a jurisdictional statute, ‘[i]f a case falls within the
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statutory exceptions of 28 U.S.C. § 2680, the court lacks subject matter jurisdiction’ and the case
must be dismissed.” Id. quoting Feyers v. United States, 749 F.2d 1222, 1225 (6th Cir.1984).
Relevant to this case, the FTCA has a statutory exception for claims “arising out of
the combatant activities of the military or naval forces, or the Coast Guard, during time of war.”
28 U.S.C. § 2680(j).
The Supreme Court amplified this exception in Feres v. United States, 340 U.S.
135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Under the Feres doctrine, “the Government
is not liable under the Federal Tort Claims Act for injuries to servicemen where the
injuries arise out of or are in the course of activity incident to service.” Feres, 340
U.S. at 146, 71 S.Ct. 153. In a later case applying the Feres doctrine, the Supreme
Court explained that “a service member is injured incident to service” if the injury
is “because of his military relationship with the Government.” 	United States v.
Johnson, 481 U.S. 681, 689, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987).
Dickson v. Wojcik, 22 F. Supp. 3d 830, 835 (W.D. Mich. 2014).
Courts view the Feres doctrine as a jurisdictional bar:
Sovereign immunity is a jurisdictional doctrine, and the terms of the United States’
“consent to be sued in any court define that court’s jurisdiction to entertain the suit.”
FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (internal
quotations omitted). The Feres doctrine, which limits the scope of the FTCA’s
waiver of sovereign immunity, is likewise jurisdictional. 	See, e.g., Selbe v. United
States, 130 F.3d 1265, 1266 (7th Cir.1997); Wake v. United States, 89 F.3d 53, 57
(2d Cir.1996) (“a question of whether an FTCA claim is barred by Feres is
necessarily one of jurisdiction”).
Brown v. United States, 151 F.3d 800, 803-04 (8th Cir. 1998). See also, Brown v. United States,
451 F.3d 411, 412, 416 (6th Cir. 2006) (concluding that the district court had “no jurisdiction to
award damages for the military’s conduct related to [the injured serviceman] while he was on
active duty” under the Feres doctrine). In summary, even if plaintiff had named the United States
as a defendant and attempted to sue for relief under the FTCA for damages arising from his military
service, plaintiff’s claim is barred by the Feres doctrine. For all of these reasons, plaintiff’s lawsuit
should be dismissed for lack of subject matter jurisdiction.
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B. 	Plaintiff’s relief related to his discharge
Plaintiff entitled the complaint in Wegener II as a “Request for proper medical
discharge” (PageID.1), under a theory that he was “medically discharged on March 10, 1987” and
that his actual “Other Than Honorable Discharge” is a nullity. 	His relief includes: a Court order
that defendant change his discharge to a “Medical Discharge Under Honorably Conditions” on
March 10, 1987; a Court order that his “Other Than Honorable Discharge” is “null and void”; and
a monetary judgment against defendant in the amount of $10 million “for the hardships and
emotional pain he had suffered over the past years being out of the Navy”. See PageID.5. 	Even
if the Court construed Wegener II as another attempt to change plaintiff’s discharge through an
administrative appeal or through injunctive relief (declaring plaintiff’s actual discharge as “null
and void”), the Court lacks subject matter jurisdiction to grant the requested relief which includes
a $10 million monetary judgment.
Defendant acknowledges that federal district courts may review military correction
board decisions under the Administrative Procedures Act (APA) and related non-tort claims with
a damage request which does not exceed $10,000.00:
The 	APA 	waives 	the 	Government’s 	sovereign 	immunity 	and 	gives
individuals access to district court to challenge agency action, but only for claims
seeking “relief other than money damages” and claims “for which there is no other
adequate remedy in a court.” 5 U.S.C. § 702, 704. Plaintiff is requesting monetary
damages and has an adequate remedy in the Court of Federal Claims. Under the
Tucker Act, the Court of Federal Claims has jurisdiction over all non-tort claims
for monetary damages against the United States, 28 U.S.C. § 1491(a), unless the
requested relief does not exceed $10,000, in which case the district courts have
concurrent jurisdiction, 28 U.S.C. § 1346(a)(2). When a plaintiff seeks more than
$10,000, the Court of Federal Claims has exclusive jurisdiction. Brott v. United
States, 858 F.3d 425, 428-29 (6th Cir. 2017). “[I]f an action rests within the
exclusive jurisdiction of the Claims Court under the Tucker Act … the district court
does not have jurisdiction regardless of other possible statutory bases.” A.E. Finley
& Assocs., Inc. v. United States, 898 F.2d 1165, 1167 (6th Cir. 1990).
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Defendants’ Brief (ECF No. 9, PageID.34).
Here, plaintiff’s claim for damages exceeds $10,000.00. Plaintiff is attempting to
bootstrap a $10 million damage claim to either a purported appeal under the APA or to a request
for injunctive relief. In this regard, “[a] party cannot circumvent the Tucker Act’s jurisdiction by
suing solely for declaratory or injunctive relief in a case where such relief is tantamount to a
judgment for money damages.” Sosa v. Secretary, Department of Defense, 47 Fed. Appx. 350,
351 (6th Cir. 2002) (citing Veda, Inc. v. United States Department of the Air Force, 111 F.3d 37,
39 (6th Cir. 1997)). “If the prime objective of the complaining party is simply to obtain money
from the federal government, the case belongs in the Court of Federal Claims.” 	Id. 	Here, the
prime objective of plaintiff’s complaint is to obtain $10 million from the federal government. This
is apparent from plaintiff’s requested relief of $10 million in damages and from his improvidently
filed motion for default judgment seeking $10 million “for the anguish and hardship he has
suffered throughout the years of trying to upgrade his discharge through boards and other means”.
See Motion (ECF No. 12); Order (ECF No. 36) (denying motion). In short, there is no basis for
plaintiff to bring his $10 million claim against the Department of the Navy in this Court.
Accordingly, plaintiff’s complaint should be dismissed for lack of subject matter jurisdiction.
IV. 	Recommendation
For the reasons set forth above, I respectfully recommend that defendant’s motion
to dismiss for lack of subject matter jurisdiction (ECF No. 8) be GRANTED, that plaintiff’s
motion for summary judgment/response (ECF No. 13) be DENIED, and that this case be
DISMISSED.
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Dated: January 12, 2026 	/s/ Ray Kent
RAY KENT
United States Magistrate Judge
ANY OBJECTIONS to this Report and Recommendation must be served and filed with the Clerk
of the Court within fourteen (14) days after service of the report. All objections and responses to
objections are governed by W.D. Mich. LCivR 72.3(b). Failure to serve and file written objections
within the specified time waives the right to appeal the District Court’s order. Thomas v. Arn, 474
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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