Harris v. United States, No. 09-421C

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtMARIAN BLANK HORN
PartiesSAMUEL W. HARRIS, Plaintiff, v. UNITED STATES, Defendant.
Docket NumberNo. 09-421C
Decision Date21 November 2011

SAMUEL W. HARRIS, Plaintiff,
v.
UNITED STATES, Defendant.

No. 09-421C

United States Court of Federal Claims

Filed: November 21, 2011


Military Pay; Lack of Subject Matter Jurisdiction; Failure to State a Claim; Cross-Motions for Judgment on the Administrative Record; Voluntary Resignation; Partially Vacated Court-Martial Conviction.

William E. Cassara, William E. Cassara, PC, Evans, GA, for the plaintiff.

Stacey K. Grigsby, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for the defendant. With her were Bryant G. Snee, Deputy Director, Jeanne E. Davidson, Director, Commercial Litigation Branch, and Tony West, Assistant Attorney General, Civil Division.

OPINION

HORN, J.

FINDINGS OF FACT

Plaintiff Samuel W. Harris was a Lieutenant in the United States Navy until he submitted his resignation from the military on March 19, 2003 and was separated from the Navy on July 1, 2003. Mr. Harris asks this court to (1) set aside his resignation from the Navy, or, alternatively, to allow him to argue his case before a separation board, (2) order his retroactive promotion to the rank of Lieutenant Commander and award corresponding backpay and allowances, (3) set aside his court-martial conviction for making false statements in violation of Article 107 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 907 (2000), and (4) award plaintiff the $1,000.00 in pay he was required to forfeit as a result of his UCMJ conviction. The government filed motions to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Alternatively, defendant seeks judgment on the Administrative Record, affirming the decision by the Board for Correction of Naval Records (BCNR), which rejected Mr. Harris' claims. Mr. Harris responded to the defendant's motions to dismiss and cross-moved for judgment on the Administrative Record, asking the court to reject the BCNR decision.

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Mr. Harris joined the Navy and was commissioned through the United States Naval Reserve Officers' Training Corps on December 14, 1990. Prior to the occurrences on the night of January 31, 2001 discussed below, Mr. Harris held the rank of Lieutenant (LT, Officer Grade O-3). He had been selected for promotion to Lieutenant Commander (Officer Grade O-4) in 2000. His name had been submitted to the United States Senate for confirmation on September 12, 2000, and the Senate had confirmed his promotion on October 6, 2000. See 146 Cong. Rec. S8436 (daily ed. Sept. 12, 2000); 146 Cong. Rec. S10117 (daily ed. Oct. 6, 2000). On April 21, 2001, Mr. Harris received a letter from the Navy notifying him of the decision to delay his promotion. Prior to the July 1, 2003 date of plaintiff's separation from the Navy, Mr. Harris had not been promoted to the rank of Lieutenant Commander.

On February 1, 2001, a Navy enlisted female reported to the Naval Criminal Investigative Service (NCIS) that Mr. Harris, then known to her only as "Big Sam," along with Navy Lieutenants Roger A. House and Reginal G. Williams, had raped and assaulted her the prior evening at Mr. Harris' house. NCIS Special Agent Gail Beasley served as the lead investigator in the case. She interviewed and obtained a sworn statement from the enlisted female on February 2, 2001. The enlisted female told Special Agent Beasley that on January 31, 2001, she had encountered three men, identified as Reginal Williams, Roger House, and a man she knew only as "Big Sam," subsequently identified as plaintiff Samuel W. Harris, at the Helmsman Club, Naval Support Activity Mid-South, Millington, Tennessee.

According to the Joint Stipulation of Facts submitted by the parties, the enlisted female reported that the following events occurred on the night of January 31, 2001. Mr. Harris and the enlisted female danced together at the Helmsman Club several times during the evening of January 31, 2001. Eventually, Mr. Harris, Mr. House, and Mr. Williams invited her to a going-away party for Mr. House. The enlisted female stated that she asked whether any other women would be attending the party, and the men responded affirmatively. The enlisted female then agreed to attend the party. At approximately 10:30 p.m., Mr. Harris drove the enlisted female to his house. No other guests were present when she and Mr. Harris arrived at his home. The enlisted female stated that, upon entering, the two sat on his couch, where Mr. Harris removed her boots and socks, with her consent. They later moved to his bedroom where the two engaged in "consensual fondling." The enlisted female also told Special Agent Beasley that, "LT Harris removed her skirt and panties with her consent." Further, the enlisted female stated that Mr. Harris was performing oral sex on her when she heard a noise and looked up to see Mr. House and Mr. Williams, in her words, "peeking in the bedroom door." According to the enlisted female, Mr. House and Mr. Williams were at least partially nude. The enlisted female stated that after Lieutenants House and Williams walked into the bedroom wearing little clothing, she asked Mr. Harris to take her home, but, according to the enlisted female, the three men raped and assaulted her, despite her protests. Eventually, according to the enlisted female, Mr. Harris drove her home, although the two stopped for food "at the Connection on the way back which is close to the base."

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The City of Memphis Sexual Assault Resource Center performed a rape kit examination on the enlisted female on February 1, 2001. The Resource Center's Forensic Nursing Evaluation did not note any signs of physical injury. A saline wet mount, used to detect semen, returned negative results. The examination report also did not note evidence of any lubricant on the enlisted female's person, although she had reported that one of the men had applied some sort of lubrication.

During the February 2, 2001 NCIS interview with the enlisted female, Special Agent Beasley asked the enlisted female if she would consent to obtaining a wire intercept of a conversation between herself and one of the three alleged assailants. She consented. On February 5, 2001, the enlisted female and Special Agent Beasley obtained the wire intercept, which recorded a conversation between the enlisted female and Mr. Williams, with whom the enlisted female claimed to have had a previous relationship. During the call, she recited her allegations, however, Mr. Williams asked her who she was, what she was talking about, and how he could contact her.

On February 6, 2001, Special Agent Beasley and Special Agent James T. Harrison interviewed Mr. Harris. According to Special Agent Beasley, she informed Mr. Harris that an enlisted female had stated he had raped her. Special Agent Beasley asked Mr. Harris if he knew the enlisted female in question. He replied that he did not and that he did not know what Special Agent Beasley was talking about. When Special Agent Beasley stated that they were referring to the woman he had met at the Helmsman Club the prior Wednesday evening, January 31, 2001, Mr. Harris acknowledged that he knew the events Special Agent Beasley was referring to, but did not know the name of the woman in question. Special Agent Beasley also asked Mr. Harris if he knew anything about the February 5, 2001, telephone call between the enlisted female and Mr. Williams. Mr. Harris stated that he had spoken to Mr. Williams about a telephone call, but stated that the two did not know who the caller was and thought that the call was a prank. Mr. House and Mr. Williams also were interviewed regarding the allegations.

According to Special Agent Beasley, Mr. Harris stated that on January 31, 2001, after dancing with a woman at the Helmsman Club, whose name he did not know, he invited the woman to a private party at his residence. She agreed to go with him. When the two arrived at his home, they immediately adjourned to his bedroom and began, in Mr. Harris' words, as reported by Special Agent Beasley, "fondling one another." Mr. House and Mr. Williams, who had keys to Mr. Harris' house, then came into Mr. Harris' residence to "check on him." Special Agent Beasley indicated that Mr. Harris stated that they knocked on his bedroom door, but left after discovering that Mr. Harris was inside. Also, as reported by Special Agent Beasley, Mr. Harris said the woman became visibly upset, and stated that she "didn't want to get caught with an officer." Mr. Harris stated that he had been unaware of her enlisted status until then, and, at that point, immediately stopped his actions. The two got dressed and, according to Mr. Harris, he drove her back to her barracks, stopping for food at a restaurant on the way.

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Mr. Harris consented to a search of his residence. Special Agent Beasley conducted the search with Special Agent Harrison. In a garbage bag outside of Mr. Harris' house, the agents found a condom box containing both wrapped and unwrapped condoms. They also found a used condom at the bottom of the bag. Phillip R. Mills, a civilian forensic examiner at the United States Army Criminal Investigative Laboratory (USACIL), tested three of the condoms found by the NCIS investigators at Mr. Harris' house. Mr. Mills found no semen present on the three condoms. There were no epithelial cells present on the first condom, so Mr. Mills did not test it further. Mr. Mills...

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