The opinion of the court was delivered by: Charles P. Kocoras United States District Judge
CHARLES P. KOCORAS, District Judge
This matter comes before the court on the motion of Defendant Donald C. Winter ("Winter") to transfer this case to the Court of Federal Claims pursuant to 28 U.S.C. § 1631, or in the alternative, to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction. For the following reasons, the motion to transfer is granted.
Plaintiff Krzysztof Sobczak ("Sobczak"), a discharged military officer, seeks both legal damages and equitable relief for what he perceives as improper procedures used against him during his dismissal from the United States Marine Corps. Sobczak attempts to invoke the court's jurisdiction pursuant to the Administrative Procedures Act*fn1 ("APA"), 5 U.S.C. § 706. He also enumerates 28 U.S.C. §§ 1331, 1361, 1367, and 2201-02 as applicable jurisdictional statutes entitling him to redress in this court.
According to the allegations of the complaint, during Sobczak's active service with the military, he was charged with violating an unspecified rule. The ensuing administrative proceedings resulted in Sobczak's involuntary dismissal. Winter, a named party, is the Secretary of the Navy. James Conway is the Commandant of the U.S. Marine Corps and also a named party. For the purposes of this decision, we will use Winter as the primary party whom Sobczak alleges violated his rights. Sobczak asserts that his dismissal should be set aside because Winter violated military procedures at the Board of Inquiry ("Board") by denying the following requests:
(1) access to relevant documents to prepare a defense; (2) opportunity to confront witnesses testifying against him; and (3) a continuance that would have permitted Sobczak time to assemble his defense. Sobczak appealed the Board's ruling to the Secretary of the Navy ("Navy"), which affirmed its findings. Moreover, Sobczak contends that the record submitted to the Navy was insufficient because it inaccurately stated his position, further abusing the procedural law governing these types of military actions.
Sobczak advances three discrete claims for relief. He initially sought injunctive relief to enjoin Winter from dismissing him from active service until all laws and procedures were followed. The court denied this request on September 30, 2008. In addition, Sobczak seeks a declaratory judgment overturning the earlier administrative proceedings and ordering a new trial before the military administrative agency. Finally, he seeks money damages for ninety days of leave he claims to have earned*fn2 totaling $30,000; he also requests front pay and retirement benefits in an amount of $3,000,000 to $5,000,000.
Winter responded by filing the instant motion to transfer the case to the Court of Federal Claims pursuant to 28 U.S.C. § 1631 for want of jurisdiction, or in the alternative, to dismiss for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).
I. Transfer of Venue to Cure Want of Jurisdiction
Where a civil action is filed to review an administrative determination, transfer of such action to any other such court in which the action could have been filed is permitted in the interest of justice. 28 U.S.C. § 1631. The language employed in the statute furnishes a court that lacks jurisdiction over an action with a choice between transfer and dismissal. See Britell v. United States, 318 F.3d 70, 72-76 (1st Cir. 2003). A court desirous of transferring a case should not dismiss for lack of jurisdiction but rather transfer based on that finding. Subslave U.S.A Corp. v. Watson Mfg., Inc., 462 F.3d 41, 43 (1st Cir. 2006).
II. Motion to Dismiss for Lack of Subject-Matter Jurisdiction
The purpose of a motion to dismiss under Fed. R. Civ. P. 12(b)(1) is to dismiss claims over which the court lacks subject-matter jurisdiction. Jurisdiction is the "power to decide" and must be conferred upon a federal court. In re Chicago, Rock Island & Pac. R. R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). The party asserting federal jurisdiction bears the burden of establishing that it is present. See Kontos v. U.S. Dep't of Labor, 826 F.2d 573, 576 (7th Cir. 1987). When a defendant moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(1), the plaintiff must support his allegations with competent ...