Kenneth L. Buholtz v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KENNETH L. BUHOLTZ,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2024-1009
______________________
Appeal from the United States Court of Federal Claims
in No. 1:16-cv-00408-AOB, Judge Armando O. Bonilla.
______________________
Decided: November 1, 2024
______________________
KENNETH L. BUHOLTZ, Seagoville, TX, pro se.
DELISA SANCHEZ, Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represented
by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M.
MCCARTHY.
______________________
Before MOORE, Chief Judge, STOLL and CUNNINGHAM,
Circuit Judges.
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BUHOLTZ v. US 2
PER CURIAM.
Plaintiff-Appellant Kenneth L. Buholtz appeals two
decisions of the United States Court of Federal Claims that
(1) dismissed sua sponte Counts I, II, and IV of his Fifth
Amended Complaint for lack of subject matter jurisdiction,
Buholtz v. United States, No. 16-408, 2023 WL 2054073,
at *10 (Fed. Cl. Feb. 16, 2023), and (2) dismissed or
granted judgment on the record in favor of Defendant-
Appellee United States (“the Government”) with respect to
the remaining Counts III and V–XI of Mr. Buholtz’s Fifth
Amended Complaint, Buholtz v. United States,
167 Fed. Cl. 107, 110 (2023). Mr. Buholtz challenges both
decisions.1 For the reasons set forth below, we affirm.
BACKGROUND
Mr. Buholtz is a former active-duty Army aviation
officer who obtained the rank of Lieutenant Colonel, but
ultimately retired as a Major because of his criminal
conduct.
In March 2015, Mr. Buholtz, proceeding pro se, filed
suit in the United States District Court for the District of
Columbia, requesting money damages exceeding $11
million. In January 2016, the district court transferred
this case to the United States Court of Federal Claims
because it appeared that Mr. Buholtz’s claims arose under
the Tucker Act. SAppx44.2
In March 2016, Mr. Buholtz filed his First and Second
Amended Complaints in the Court of Federal Claims,
1 Mr. Buholtz separately filed a Motion for
Sanctions. See ECF No. 55. We have reviewed and
considered the motion for sanctions, and we deny the
motion.
2 “SAppx” refers to the Supplemental Appendix that
the Government filed with its informal brief.
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followed by a Third Amended Complaint in May 2016.
SAppx2–3. In June 2016, the Court of Federal Claims
requested Mr. Buholtz’s consent for referral to the Court of
Federal Claims Bar Association Pro Bono/Attorney
Referral Pilot Program and Mr. Buholtz secured counsel in
January 2017. SAppx3–4. Then, in April 2017,
Mr. Buholtz, with the assistance of counsel, filed his Fourth
Amended Complaint. Id.
In August 2019, Mr. Buholtz filed a Fifth Amended
Complaint with 11 Counts. See SAppx133–73. In Count I,
Mr. Buholtz seeks $2,800,000.00 in damages for alleged
delays by the Government in processing his Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, requests.
SAppx144–45. In Count II, Mr. Buholtz seeks damages,
also in the amount of $2,800,000.00, for what he describes
as “excessive process delays” with respect to the amount of
time that the Army Board for Correction of Military
Records (“ABCMR”) spent addressing his various
applications. SAppx146–47. Mr. Buholtz contends in
Count III that his April 2004 Army reassignment from the
Republic of Colombia was in retaliation for his
whistleblowing activities and, as result, he lost Aviation
Career Incentive Pay (“ACIP”) under 37 U.S.C. § 204.
SAppx148–49. In Count IV, Mr. Buholtz seeks
compensation for alleged retaliation against him by the
Army for his alleged whistleblowing activities stemming
from his service in the Republic of Colombia. SAppx150–
52. In Count V, Mr. Buholtz asserts that he was deprived
of a reimbursement in the amount of $35,000.00 for
security upgrades to, and $220,000.00 in forgone rent from,
a home that he purchased in Melgar, Colombia because
Mr. Buholtz “‘blew the whistle’ on numerous issues.”
SAppx153–54. In Count VI, Mr. Buholtz contends that the
Army issued him a “feint praise” officer evaluation report
(“OER”) in retaliation because “he blew the whistle on
military supply discipline problems, and the wrongful
death of two innocent civilians, while on a Special
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BUHOLTZ v. US 4
Operations assignment in Colombia.” SAppx155–56. In
Count VII, Mr. Buholtz alleges that the Army refused to
place his records before a special selection board for
promotion consideration to the rank of Colonel in
retaliation for “his 2004 whistleblowing in Colombia.”
SAppx157–58. In Count VIII, Mr. Buholtz challenges the
Army’s denial of his request for a waiver regarding the
recoupment of approximately $150,000.00 in voluntary
separation incentive (“VSI”) payments made following
Mr. Buholtz’s 1992 voluntary separation due to his post-
October 2011 collection of military retirement pay.
SAppx159–60. In Count IX, Mr. Buholtz alleges that
senior officers in his chain of command “artificially
insert[ed] themselves” into his OER for the period of
April 9, 2010, through February 1, 2011 “for the sole
purpose of retaliation.” SAppx161–62. In Count X,
Mr. Buholtz asserts that he was denied accrued leave and
that his time-in-service (“TIS”) was not correctly calculated
at the time of his separation. SAppx163–65. Finally, in
Count XI, Mr. Buholtz contends that he was wrongly
separated at the reduced grade of Major and is, instead,
entitled to a disability retirement at the rank of Lieutenant
Colonel or Colonel under 10 U.S.C. § 1201. SAppx166–69.
In February 2023, the Court of Federal Claims
dismissed sua sponte, for lack of jurisdiction, Counts I
(FOIA and Privacy Act), II (Timeliness of ABCMR
Decisions), and IV (Military Whistleblower Protection Act
(MWPA)) of the Fifth Amended Complaint.
In August 2023, the Court of Federal Claims granted
the Government’s motion to dismiss the alleged
whistleblowing claims that Mr. Buholtz advanced in
Counts III, V, VI, and VII, of his Fifth Amended Complaint
for lack of jurisdiction, Count VIII (VSI Repayment
Waiver) as nonjusticiable, Count IX (Referred OER) for
lack of jurisdiction or failure to assert a viable claim for
relief, and granted judgment on the administrative record
for the Government with respect to Count X (Accrued
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BUHOLTZ v. US 5
Leave and TIS) and Count XI (Medical Retirement and
Grade Reduction).
Mr. Buholtz timely appealed. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
Mr. Buholtz filed a Form 12 Informal Opening Brief
and a lengthy brief in support of his Form 12 Informal
Opening Brief. SAppx174–211. We reviewed both filings.
In both filings, however, Mr. Buholtz fails to explain or
establish, any specific factual or legal errors by the Court
of Federal Claims in the two opinions that it issued with
respect to Mr. Buholtz’s Fifth Amended Complaint.
Instead, in his brief, see SAppx174–211, Mr. Buholtz
restates the claims that he advanced in his Fifth Amended
Complaint, see SAppx133–73, and reiterates his grievances
based on those claims.3
We see no error in the decision of the Court of Federal
Claims in this case. As the trial court correctly
observed: (1) Counts I–VII, IX, and XI do not fall within
the Court of Federal Claims’ limited jurisdiction;
(2) Count VIII is nonjusticiable; and (3) on Count X, the
Government is entitled to judgment on the administrative
record. We address each in turn.
I
The Tucker Act establishes and limits the jurisdiction
of the Court of Federal Claims. See 28 U.S.C. § 1491. The
3 On appeal, Mr. Buholtz also asserts that the Court
of Federal Claims failed to decide Count XII—a Count that
Mr. Buholtz alleges the Court of Federal Claims created
sua sponte. There is no merit to this assertion. The Court
of Federal Claims did not create a Count XII sua sponte,
and thus did not fail to decide Count XII.
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Tucker Act, however, is “only a jurisdictional statute; it
does not create any substantive right enforceable against
the United States for money damages . . . the Act merely
confers jurisdiction upon [the Court of Federal Claims]
whenever the substantive right exists.” United States
v. Testan, 424 U.S. 392, 398 (1976). Thus, “a plaintiff must
identify a separate source of substantive law that creates
the right to money damages,” that is the “source must be
‘money-mandating.’” Fisher v United States, 402 F.3d
1167, 1172 (Fed. Cir. 2005) (en banc in relevant part). We
“review[] a grant or denial of a motion to dismiss for lack of
subject matter jurisdiction de novo.” Creative Compounds,
LLC v. Starmark Lab., 651 F.3d 1303, 1309 (Fed. Cir. 2011)
(quoting Hewlett-Packard Co. v. Acceleron LLC, 587 F.3d
1358, 1361 (Fed. Cir. 2009)).
In its first decision, the Court of Federal Claims
determined that Counts I (FOIA and Privacy Act
responsiveness), Count II (ABCMR timeliness), and
Count IV (MWPA claims) fell outside of its limited
jurisdiction. In its second decision, the Court of Federal
Claims determined that Counts III, V–VII, IX, and XI also
fell outside of its limited jurisdiction because these Counts
“relate to or otherwise stem from and are inextricably
intertwined with Mr. Buholtz’s alleged whistleblowing
activities while serving in Bogotá, Columbia.” SAppx47;
see SAppx47–53. As explained below, we agree with the
Court of Federal Claims’ determinations.
A
In Count I, Mr. Buholtz alleges the Government failed
to timely respond to his 25 requests for information and
documents submitted under the FOIA Act, 5 U.S.C. § 552,
and the Privacy Act, 5 U.S.C. § 552a. In support,
Mr. Buholtz cites a portion of 5 U.S.C. § 552a(g)(4) (civil
remedies), which provides:
In any suit brought under the provisions of
subsection (g)(1)(C) or (D) of this section in which
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the court determines that the agency acted in a
manner which was intentional or willful, the
United States shall be liable to the individual in an
amount equal to the sum of–
(A) actual damages sustained by the individual as
a result of the refusal or failure, but in no case shall
a person entitled to recovery receive less than the
sum of $1,000; and
(B) the costs of the action together with reasonable
attorney fees as determined by the court.
5 U.S.C. § 552a(g)(4). But, as the Court of Federal Claims
correctly noted, the statute that Mr. Buholtz cites expressly
vests jurisdiction over such claims in the United States
district courts. See id. § 552a(g)(1) (“[T]he individual may
bring a civil action against the agency, and the district
courts of the United States shall have jurisdiction in the
matters under the provisions of this subsection.”). As such,
we agree that the Court of Federal Claims lacks
jurisdiction over Count I, and thus affirm the trial court’s
decision to dismiss Count I.
B
In Count II, Mr. Buholtz asserts the ABCMR failed to
timely adjudicate his 21 applications for administrative
relief in accordance with 10 U.S.C. § 1557. Section 1557(b)
provides:
Clearance deadline for all applications.– Final
action by a Corrections Board on all applications
received by the Corrections Board (other than
those applications considered suitable for
administrative correction) shall be completed
within 18 months of receipt.
10 U.S.C. § 1557(b). However, the statute provides for a
discretionary Secretarial (nondelegable) waiver of this
deadline and notes that the “[f]ailure of a Corrections
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Board to meet the applicable timeliness standard . . . does
not confer any presumption or advantage with respect to
consideration by the board of any application.” See id.
§ 1557(c)–(d). In fact, the statute specifies that the
consequence of an alleged untimely adjudication by the
ABCMR is inclusion of the matter in an annual report to
Congress by the Army Secretary—not mandated monetary
damages to an individual applicant. See 10 U.S.C.
§ 1557(e). As such, the statute is not money-mandating,
and therefore this claim falls outside the jurisdiction of the
Court of Federal Claims. See Moden v. United States,
404 F.3d 1335, 1341 (Fed. Cir. 2005); Collins v. United
States, 67 F.3d 284, 286 (Fed. Cir. 1995). Accordingly, the
Court of Federal Claims correctly dismissed Count II.
C
Counts III–VII, IX, and XI relate to or otherwise stem
from and are inextricably intertwined with Mr. Buholtz’s
alleged whistleblowing activities while serving in Bogotá,
Columbia. For example, in Count III, Mr. Buholtz alleges
the United States Military Group (“USMILGRP”) in
Bogotá orchestrated his April 2004 reassignment stateside
in retaliation for his whistleblowing, resulting in his loss of
ACIP. In Count IV, Mr. Buholtz seeks relief under the
MWPA, 10 U.S.C. § 1034, alleging, inter alia, that “Buholtz
had done his Colombia based ‘whistleblowing’ through the
Government Accountability Office [“GAO”]” yet “[h]is
[Inspector General] chain had repeatedly averred that
GAO was not a ‘protected source[.]’” SAppx150. In Count
V, Mr. Buholtz asserts officials improperly denied his
residential security upgrade reimbursements “after
Buholtz ‘blew the whistle’ on numerous issues,” and
thereafter, blacklisted the rental of his Columbian home
(by other servicemembers) following Mr. Buholtz’s
reassignment stateside. SAppx154. Mr. Buholtz again
invokes the MWPA in Count VI and contends his chain of
command included “feint praise” in his OER because he
“blew the whistle” on military supply discipline problems
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and the wrongful deaths of two innocent civilians.
SAppx155. In Count VII, Mr. Buholtz also invokes the
MWPA and alleges the Army took steps to ensure his
military personnel record was not competitive to merit
selection for promotion to Colonel because of his “2004
whistleblowing in Columbia.” SAppx157. In Count IX,
again relying on the MWPA, Mr. Buholtz raises retaliation
as the primary issue, and notes his “tiff with [Major] Day,
combined with his criminal issues, afforded
[Colonel] Battaglia the perfect opportunity to compound
the whistleblower activities already dogging him.”
SAppx161–62. Lastly, in Count XI, Mr. Buholtz alleges the
contested personnel actions were undertaken by the Army
in a continuing effort to further punish him for his alleged
whistleblowing activities. See SAppx169 (“The Army
Board reveled in the opportunity to exact revenge for years
of Whistleblowing complaint processing.”).
Because Mr. Buholtz is currently proceeding pro se, we
construe his pleading liberally. Durr v. Nicholson, 400 F.3d
1375, 1380 (Fed. Cir. 2005) (“[P]ro se pleadings are to be
liberally construed.” (citation omitted)). Still, pro se
plaintiffs must establish the Court of Federal Claims’
jurisdiction by a preponderance of the evidence. Taylor
v. United States, 303 F.3d 1357, 1359 (Fed. Cir. 2002).
While Mr. Buholtz generally cites the Tucker Act,
28 U.S.C. § 1491, and the Military Pay Act, 37 U.S.C.
§ 204, in support of his claims, each of these Counts (III,
V–VII, IX, and XI) fits squarely within the ambit of the
MWPA. Yet the MWPA is not money-mandating, so the
Court of Federal Claims lacks jurisdiction to adjudicate
such claims. In fact, in his complaint, Mr. Buholtz
acknowledges that the statute is not money-mandating.
See SAppx149. Therefore, we affirm the Court of Federal
Claims’ determination that it lacks jurisdiction to
adjudicate Counts III–VII, IX, and XI.
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II
A motion to dismiss pursuant to the Court of Federal
Claims Rule (“RCFC”) 12(b)(6) for failure to state a claim
upon which relief may be granted is appropriate when the
plaintiff alleges facts that do not entitle him or her to a
remedy. Godwin v. United States, 338 F.3d 1374, 1377
(Fed. Cir. 2003). “We review decisions to dismiss
complaints under Rule 12(b)(6) de novo.” Zafer
Construction Co. v. United States, 40 F.4th 1365, 1367
(Fed. Cir. 2022).
In Count VIII, Mr. Buholtz claims entitlement to a
waiver and refund of the VSI repayments under 10 U.S.C.
§ 1175a(j)(5). The Court of Federal Claims determined that
“Count VIII must be dismissed as nonjusticiable under
RCFC 12(b)(6) for failure to state a claim upon which relief
can be granted” because “the Secretary is statutorily
entrusted with the administration of [the VSI Waiver]
program” and “[a]s such, the exercise of such authority is
not judicially reviewable.” SAppx49. We agree.
The VSI waiver provision provides: “The Secretary of
Defense may waive, in whole or in part, repayment
required under paragraph (1) if the Secretary determines
that recovery would be against equity and good conscience
or would be contrary to the best interests of the United
States.” 10 U.S.C. § 1175a(j)(5). Here, because
§ 1175a(j)(5) waivers are wholly within the discretion of the
Secretary, the Court of Federal Claims and this court lack
the ability to review the Secretary’s decision and provide
relief. See, e.g., Voge v. United States, 844 F.2d 776, 779–
81 (Fed. Cir. 1988) (holding that a court may not review the
substantive merits as to the denial of military Additional
Special Pay under 37 U.S.C. § 302 because the military
was ultimately responsible for making the determination
on whether to terminate Additional Special Pay, and thus
the controversy is nonjusticiable). Moreover, the Defense
Secretary has not adopted a formal regulatory or policy
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BUHOLTZ v. US 11
scheme governing the substantive assessment of VSI
waiver requests. Thus, we affirm the Court of Federal
Claims’ decision to dismiss Count VIII as nonjusticiable
under RCFC 12(b)(6) for failure to state a claim upon which
relief can be granted.
III
“We review a decision of the Court of Federal Claims
granting or denying a motion for judgment on the
administrative record without deference.” Barnick
v. United States, 591 F.3d 1372, 1377 (Fed. Cir. 2010)
(citing Chambers v. United States, 417 F.3d 1218, 1227
(Fed. Cir. 2005)). Thus, “we apply the same standard of
review as the trial court,” and should only overturn the
ABCMR’s decision if it is “arbitrary, capricious, contrary to
law, or unsupported by substantial evidence.” Id. And we
review the trial court’s findings of fact for clear error.
Melendez Camilo v. United States, 642 F.3d 1040, 1044
(Fed. Cir. 2011) (citing Heisig v. United States, 719 F.2d
1153, 1156 (Fed. Cir. 1983)). This standard of review “does
not require a reweighing of the evidence, but a
determination whether the conclusion being reviewed is
supported by substantial evidence.” Heisig, 719 F.2d
at 1157.
In Count X, Mr. Buholtz alleges (1) the Army
miscalculated Mr. Buholtz’s TIS at the time of his
separation and (2) erred by denying payment for 72 leave
days. First, with respect to the alleged miscalculation of
Mr. Buholtz’s TIS, the 4-month and 16-day difference
between the Army’s and Mr. Buholtz’s calculations is
attributable to uncredited “bad time” that Mr. Buholtz
accumulated while in federal prison until his separation
from the Army (i.e., June 14, 2011, to October 31, 2011).
SAppx123–24. Mr. Buholtz claims he should have been
permitted to offset these 139 days of “bad time” with
accrued leave rather than forfeit the leave because of his
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BUHOLTZ v. US 12
“civilian confinement” status. See SAppx163–64. The
ABCMR properly denied Mr. Buholtz’s claim.
By statute, “[a] member of the Army . . . who is absent
without leave . . . forfeits all pay and allowances for the
period of that absence, unless it is excused as unavoidable.”
37 U.S.C. § 503(a). Here, Mr. Buholtz was detained and
ultimately incarcerated in a federal prison after pleading
guilty to a criminal offense. As such, Mr. Buholtz was not
entitled to military pay or the accrual of annual leave or
benefits from June 14, 2011 (i.e., his first full day in
pretrial detention following his arrest and arraignment on
a federal charge) and continuing through his military
separation on October 31, 2011. See Harris v. United
States, 868 F.3d 1376, 1380 (Fed. Cir. 2017) (holding that
military member was not entitled to pay for his pre-trial
confinement because he was ultimately convicted).
With respect to Mr. Buholtz’s claim that he was
incorrectly denied payment for his accrued leave,
Mr. Buholtz cashed out the maximum 60 days of accrued
leave in his military career and, thus, by regulation is
entitled to nothing more. See SAppx131–32. Indeed,
Mr. Buholtz admits that he cashed 30 days of accrued leave
when he first separated from the Army in 1978. SAppx131.
And an additional 30 days was cashed out on Mr. Buholtz’s
behalf during his period of civilian confinement from June
to July 2011. SAppx131–32. As such, with respect to
Count X, we will not disturb the decision of the ABCMR
because it is not arbitrary, capricious, contrary to law, or
unsupported by substantial evidence.
CONCLUSION
We have considered Mr. Buholtz remaining arguments
and do not find them persuasive. For the reasons above,
we affirm the judgments of the Court of Federal Claims.
AFFIRMED
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COSTS
No costs.
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