Bernard v. U.S. Dept. of Defense

• Decision Date: 30 March 2005
• Docket Number: No. CIV.A. 04-0084(RCL).,CIV.A. 04-0084(RCL).
• Citation: 362 F.Supp.2d 272
• Parties: Daniel J. BERNARD, Plaintiff, v. UNITED STATES DEPARTMENT OF DEFENSE, Defendant.
• Court: U.S. District Court — District of Columbia

362 F.Supp.2d 272

Daniel J. BERNARD, Plaintiff, v. UNITED STATES DEPARTMENT OF DEFENSE, Defendant.

No. CIV.A. 04-0084(RCL).

United States District Court, District of Columbia.

March 30, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Daniel J. Bernard, Paseos De Taxquena, Pro se.

Uldric L. Fiore, Jr., U.S. Attorney's Office, Civil Division, Washington, DC, for Defendant.

MEMORANDUM OPINION

LAMBERTH, District Judge.

This matter comes before the Court on the defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment. The defendant moves to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure on the grounds that this Court lacks subject matter jurisdiction, and Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that the plaintiff has failed to state a claim upon which relief can be granted. Alternatively, the defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that there is no genuine issue as to any material fact and the defendant is entitled to judgment as a matter of law. The defendant submitted a motion and memorandum in support of its position. The plaintiff, acting pro se¹, submitted a memorandum in opposition, and the defendant subsequently filed a reply. Upon consideration of the parties' filings, the applicable law, the Federal Rules of Civil Procedure, and the facts of this case, the Court finds that the defendant's motion to dismiss will be GRANTED.

I. BACKGROUND

The plaintiff was an Active Guard and Reserve officer in the United States Army as a JAG attorney. (A.R.509). On September 19, 2000, the plaintiff told a supervisor he wanted to resign. Id. at 506. The plaintiff then departed his place of duty without permission. Id. On October 3, 2000, the plaintiff sought medical treatment. Id. The plaintiff was hospitalized for a short period for psychiatric and medical evaluation. Id. at 489-93. Dr. Timothy Sheehan concluded the plaintiff was not qualified to remain in the Army. Id. at 493. On February 5, 2001, a Medical Evaluation Board (MEB) convened and found the plaintiff was suffering from multiple mental ailments, including ailments related to schizophrenia and depression. (A.R.486). The plaintiff concurred with the MEB's findings and recommendations on February 8, 2001. Id. at 488. The MEB referred the plaintiff's case to a Physical Evaluation Board (PEB). Id. at 486. The PEB found the plaintiff unfit for retention in the Army, but did not give the plaintiff a permanent disability rating. Id. at 478. The PEB assigned a 30% disability rating and recommended the plaintiff be placed on the Temporary Disability Retired List (TDRL) until reevaluation in March 2002. Id. at 478-79. The plaintiff concurred with the findings and recommendations of the PEB and waived his right to a formal hearing. Id. at 480.

The plaintiff's TDRL reexamination took place on or about March 25, 2002. (A.R.471). The reviewing military personnel recommended the plaintiff is unfit for military duty, but is competent for pay purposes and able to participate in PEB proceedings. Id. On or about April 29, 2002, an informal PEB reviewed the plaintiff's case and related TDRL evaluation and concluded the plaintiff was unfit for service and only 10% disabled. Id. at 449. On or about May 31, 2002, the plaintiff did not concur with these conclusions and requested a personal appearance before the PEB. Id. at 467.

A formal PEB convened on July 2, 2002. Id. at 388. The plaintiff decided to act as his own lead counsel and used his assigned counsel for the limited purpose of receiving the results of the formal PEB. Id. at 390. The PEB found that the plaintiff was physically unfit and recommended a disability rating of 10%. (A.R.388). On or about July 11, 2002, the plaintiff did not concur with the PEB's findings and recommendations. Id. at 392. On July 23, 2002, the President of the PEB notified the plaintiff that he had reviewed his rebuttal of July 11, 2002. Id. at 390. The President of the PEB affirmed the PEB's decision and advised the plaintiff that his appeal was being sent to the U.S. Army Physical Disability Agency (USAPDA) for review. Id. at 390-91.

USAPDA affirmed the findings of the PEB on July 30, 2002. Id. at 387. The plaintiff's case was then sent to the Physical Disability Branch for final disposition. Id. The Physical Disability Branch reviewed the case and affirmed the PEB's decisions on August 6, 2002. (A.R.527).

The plaintiff seeks equitable and financial relief. Regarding equitable relief, the plaintiff requests the Court to correct his military records (Pl.'s Compl. at pp. 10-11, ¶¶ 6, 8), to compel the production of records, id. at pp. 9-10, ¶¶ 1,7, to direct a "Special Counsel" to initiate proceedings against various officials, id. at p. 11, ¶ 5, to assess attorney fees and "other litigation costs," id. at p. 10, ¶ 2, and to grant the plaintiff $400,000 in "actual damages" if proper relief cannot be achieved otherwise. Id. at p. 11, ¶ 10.

On February 5, 2003, the plaintiff originally filed suit in the United States Court of Federal Claims. On September 30, 2003, that court dismissed part of the plaintiff's complaint for lack of jurisdiction. Bernard v. United States, No. 03-265C (Fed.Cl. Sept.30, 2003). The court gave the plaintiff the opportunity to amend his remaining claims. The plaintiff declined to do so and appealed to the United States Court of Appeals for the Federal Circuit. On January 23, 2004, the Court of Federal Claims dismissed the plaintiff's entire first amended complaint and directed the Clerk of the Court to enter final judgment because the plaintiff failed to amend the remaining counts of his first amended complaint. Bernard v. United States, 59 Fed. Cl. 497 (Fed.Cl.2004). On April 9, 2004, the Court of Appeals for the Federal Circuit affirmed the decision of the Court of Federal Claims. Bernard v. United States, 98 Fed.Appx. 860, 2004 WL 842679 (Fed.Cir.2004), rehearing denied (May 5, 2004). On January 16, 2004, the plaintiff acting pro se, filed suit in the matter pending before this Court.

II. STANDARD OF REVIEW

The defendant filed a motion to dismiss, or in the alternative, for summary judgment. First, the standard of review for a motion to dismiss for lack of subject matter jurisdiction is discussed. Second, the standard of review for a motion to dismiss for failure to state a claim upon which relief can be granted is discussed.

A. Dismissal Under Rule 12(b)(1)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) tests whether the court has subject matter jurisdiction over the action. Federal courts are of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). A plaintiff bears the burden of persuasion to establish subject-matter jurisdiction by a preponderance of the evidence. McNutt v. Gen. Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). A complaint may be dismissed for lack of subject matter jurisdiction only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Sinclair v. Kleindienst, 711 F.2d 291, 293 (D.C.Cir.1983) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The Court assumes the truth of the allegations made in the complaint and construes them favorably to the pleader. Artis v. Greenspan, 158 F.3d 1301, 1305-06 (D.C.Cir.1998). Because subject matter jurisdiction focuses on the Court's power to hear a claim, however, the Court must give the plaintiff's factual allegations closer scrutiny when reviewing a motion to dismiss for lack of subject matter jurisdiction than reviewing a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6). Mut. Pharm. Co., Inc. v. Pfizer, 307 F.Supp.2d 88, 92 (D.D.C.2004) (citing Macharia v. United States, 334 F.3d 61, 64, 68-69 (D.C.Cir.2003); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001)). In determining whether the plaintiff has met this burden, the Court may look to materials beyond the pleadings. Herbert v. Nat'l Acad. of Sciences 974 F.2d 192, 197 (D.C.Cir.1992).

B. Dismissal Under Rule 12(b)(6)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether a plaintiff has properly stated a claim upon which relief can be granted. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The explicit language of Federal Rule of Civil Procedure 8(a)(2) provides that the complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief...." See also Conley, 355 U.S. at 47, 78 S.Ct. 99; U.S. ex. rel. Harris v. Bernad, 275 F.Supp.2d 1, 5 (D.D.C.2003). The complainant need not plead the elements of a prima facie case. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (holding that a complainant in an employment discrimination case need not plead the prima facie elements); see also Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1114 (D.C.Cir.2000). In deciding a motion to dismiss under Rule 12(b)(6), the court is bound to consider all well-pleaded facts as true, and to draw all reasonable inferences in favor of the nonmovant. Scheuer, 416 U.S. at 236, 94 S.Ct. 1683; U.S. ex. rel. Harris, 275 F.Supp.2d at 5. Therefore "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46, 78 S.Ct. 99.

III. ANALYSIS

The defendant's motion to dismiss is analyzed first. Since the Court determines the defendant's ...