Lanier-Finn v. Dep't of the Army

• Decision Date: 26 August 2013
• Docket Number: Civil Action No. 12–cv–03658–AW.
• Citation: 963 F.Supp.2d 476
• Parties: Louise G. LANIER–FINN, Plaintiff, v. DEPARTMENT OF the ARMY, Defendant.
• Court: U.S. District Court — District of Maryland

963 F.Supp.2d 476

Louise G. LANIER–FINN, Plaintiff,
v.
DEPARTMENT OF the ARMY, Defendant.

Civil Action No. 12–cv–03658–AW.

United States District Court,
D. Maryland,
Southern Division.

Aug. 26, 2013.

[963 F.Supp.2d 478]

Louise G. Lanier–Finn, Suitland, MD, pro se.

Joseph Ronald Baldwin, Office of the United States Attorney, Baltimore, MD, for Defendant.

MEMORANDUM OPINION
ALEXANDER WILLIAMS, JR., District Judge.

Pending before the Court is Defendant's Motion to Dismiss or, in the Alternative, for Summary Judgment. Doc. No. 12. The Court has reviewed the motion papers and concludes that no hearing is necessary. See Loc. R. 105.6 (D.Md. 2011). For the reasons discussed below, Defendant's Motion will be GRANTED.¹

I. BACKGROUND

The following is taken from Plaintiff's Complaint and the administrative record (AR) filed by Defendant, the Department of the Army. See Doc. Nos. 1, 11. Plaintiff

[963 F.Supp.2d 479]

Louise Lanier–Finn, proceeding pro se in this action, was commissioned as a Second Lieutenant in the Army Nurse Corps of the U.S. Army Reserve on August 20, 1982. Doc. No. 11, AR87. Plaintiff was promoted to Captain on December 15, 1986. AR222. In September 1990, Plaintiff was assigned to active duty, which was to begin April 1, 1991 at the Walter Reed Army Medical Center. AR206. Plaintiff was again promoted effective June 1, 1994, this time to the rank of Major. AR85. Effective April 15, 1999, Plaintiff was released from active duty and assigned to the 5th Brigade Health Services, 80th Division in the Army Reserve. AR51, AR120. As of that date, Plaintiff had completed 16 years, seven months, and 20 days of military service.

Prior to Plaintiff's sixtieth birthday in 1999, she applied for a waiver to serve past her mandatory removal date (MRD). AR73, AR75–76. The MRD is the date on which commissioned officers may be involuntarily removed by operation of law for reaching the maximum allowable age for the office. See, e.g.,10 U.S.C. §§ 14509, 14515. These provisions required that reserve officers below the rank of brigadier general would be discharged on the last day of the month in which the officer turned 60, and that officers separated for maximum age would be transferred to the Retired Reserve if so qualified.²Id. Following her application for waiver and after she reached her MRD, but prior to her discharge, Plaintiff's name was listed on an Army Human Resources Command Website as being selected for promotion to Lieutenant Colonel for the Fiscal Year 2000. See Doc. No. 1–5; AR10. However, Plaintiff's official personnel file and the administrative record filed in this case contain no indication that Plaintiff was ever processed for promotion or that promotion orders were promulgated.

Plaintiff's application for waiver to serve beyond her MRD was returned to Plaintiff because it was incomplete. AR51, AR71. The Army neither approved nor denied Plaintiff's extension request because she apparently refused to submit the required documentation to complete her application. AR71. Because Plaintiff was not eligible to be retained beyond her MRD, the Army issued discharge orders. Id. Plaintiff was informed of this fact by letter dated May 30, 2001, and she was discharged effective June 1, 2001. AR51, AR94. Plaintiff was ineligible for transfer to the Retired Reserve because she had not completed 20 years of qualifying service. AR71.

On December 28, 2002, Plaintiff filed an Application for Correction of Military Record to request a correction in her retirement point credit, a promotion to Lieutenant Colonel, and retirement pay. AR65, AR69. The Army's Board of Correction of Military Records (ABCMR) reviewed Plaintiff's file and concluded that (1) her application for MRD waiver had been incomplete; (2) she had refused to submit the documentation required to process her request; (3) her waiver request had not been approved; (4) she was properly separated at age 60 by operation of law; (5) she did not meet statutory requirements for retired pay because she did not have 20 years of qualifying service; and (6) she submitted no documentation showing that she was improperly denied a promotion or that her retirement points were improper. AR65–67. Accordingly, the ABCMR denied Plaintiff's request for relief based on her failure “to submit sufficient relevant evidence to demonstrate the existence of

[963 F.Supp.2d 480]

probable error or injustice.” AR68. The Board's Memorandum of Consideration was dated August 14, 2003. AR64. The ABCMR notified Plaintiff of its final decision on August 25, 2003, and advised Plaintiff that she could request reconsideration only if she presented newly discovered relevant evidence that was not available when the Board denied her application. AR62.

More than five and a half years later, on May 4, 2009, Plaintiff sought reconsideration of the Board's 2003 decision. AR28. On March 4, 2010, Plaintiff's reconsideration request was returned without action pursuant to Army Regulation 15–185 ¶ 2–15, 32 C.F.R. § 581.3(g)(4), because she did not submit her request within one year of the Board's decision.³Id. Plaintiff was advised that the Board contemplated no further action on Plaintiff's matter, and that she had the option to seek relief in a court of appropriate jurisdiction.

Plaintiff originally filed suit against the Department of the Army in the Circuit Court for Prince George's County on May 7, 2012. Doc. Nos. 1–1, 1–2.⁴ Plaintiff subsequently filed her Complaint against the Department of the Army in this Court on December 13, 2012. Doc. No. 1. Plaintiff appears to be seeking retirement benefits, a promotion to Lieutenant Colonel, and compensation for ten years of pain and suffering. Id. at 3.

II. ANALYSIS

Defendant moves, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, to dismiss all of Plaintiff's claims for lack of subject matter jurisdiction. A Rule 12(b)(1) motion should be granted “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991). “The plaintiff has the burden of proving that subject matter jurisdiction exists.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999). When a defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), “the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Id. at 647 (quoting Richmond, 945 F.2d at 768). “When challenged on allegations of jurisdictional facts, the parties must support their allegations by competent proof.” Hertz Corp. v. Friend, 559 U.S. 77, 97–98, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010).

[963 F.Supp.2d 481]

“As a sovereign the United States ‘is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.’ ” McLean v. United States, 566 F.3d 391, 401 (4th Cir.2009) (quoting United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)). Sovereign immunity cannot be avoided by suing individual agencies or departments of the United States, such as the Department of the Army. See, e.g., Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 259–63, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999); Huff v. Dep't of Army, 508 F.Supp.2d 459, 462–63 (D.Md.2007). “Rather, sovereign immunity is implicated any time that ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the Government from acting, or to compel it to act.’ ” Judkins v. Veterans Admin., 415 F.Supp.2d 613, 616 (E.D.N.C.2005) (quoting Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963)). Plaintiffs suing the United States must “allege an unequivocal waiver of sovereign immunity.... Such waivers may not be implied, and must be strictly construed in favor of the sovereign.” Huff, 508 F.Supp.2d at 462 (citations omitted) (internal quotations omitted).

Complaints filed by pro se plaintiffs are “to be liberally construed ... and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citations omitted) (internal quotations omitted). Plaintiff's Complaint does not expressly articulate a basis for finding that Defendant waived its sovereign immunity. However, the Court will construe the Complaint liberally as asserting claims under the Administrative Procedure Act (APA), the Tucker Act, and the Federal Tort Claims Act (FTCA). See Huff, 508 F.Supp.2d at 462–63.

A. APA Claims for Nonmonetary Relief

Plaintiff appears to advance a claim under the Administrative Procedure Act (APA) for judicial review of the ABCMR's 2003 decision to deny Plaintiff's Application for Correction of Military Record. See Doc. No. 1–7. The APA waives the sovereign immunity of the United States for claims seeking relief other than monetary damages. See, e.g., Hostetter v. United States, 739 F.2d 983, 985 (4th Cir.1984) (citing 5 U.S.C. §§ 702, 703). Accordingly, sovereign immunity is no bar to Plaintiff's APA claims to the extent she seeks review of her discharge and Defendant's denial of her promotion. See, e.g., Huff, 508 F.Supp.2d at 462–63.

Under 28 U.S.C. § 2401(a), with certain exceptions not relevant here, “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” A complaint under the APA for judicial review of agency action is a “civil action” within the meaning of § 2401(a). Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180, 186 (4th Cir.1999). “Conduct becomes reviewable under the APA...