Roseberry-Andrews v. Wilson

• Decision Date: 22 February 2018
• Docket Number: Civil Action No. 15–2051 (TJK)
• Citation: 292 F.Supp.3d 446
• Parties: Cynthia L. ROSEBERRY–ANDREWS, Plaintiff, v. Heather WILSON, Secretary of the Air Force, Defendant.
• Court: U.S. District Court — District of Columbia

292 F.Supp.3d 446

Cynthia L. ROSEBERRY–ANDREWS, Plaintiff,

v.Heather WILSON, Secretary of the Air Force, Defendant.

Civil Action No. 15–2051 (TJK)

United States District Court, District of Columbia.

Signed February 22, 2018

Cynthia L. Roseberry–Andrews, North Beach, MD, pro se.

Johnny Hillary Walker, III, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

TIMOTHY J. KELLY, United States District Judge

Roseberry–Andrews, proceeding pro se , challenges a number of decisions by the Air Force Board for Correction of Military Records (the "Board") denying her requests to modify her military records. She asks this Court to rule that these denials were arbitrary and capricious and to remand to the Board for a number of forms of relief, including monetary compensation. Defendant moves to dismiss the case for lack of subject matter jurisdiction, or, alternatively, for summary judgment.¹ The Court concludes that Roseberry–Andrews' request for monetary relief divests this Court of subject matter jurisdiction over her complaint. As a result, the Court transfers the case to the Court of Federal Claims.

I. Factual and Procedural Background

A. Roseberry–Andrews' Allegations

Senior Master Sergeant Cynthia Roseberry–Andrews enlisted in the Air National Guard in 1982. AR 18. After twelve years in the Air National Guard, she transferred to the United States Air Force Reserve's "Individual Mobilization Augmentee" ("IMA") program. Compl. ¶ 3; AR 18. An IMA is a part-time reservist who is assigned to an active-duty unit. Def.'s MTD at 2. In August 2002, Roseberry–Andrews accepted a position as a Program Manager in the Human Resources Directorate at the Defense Contract Management Agency ("DCMA"). Compl. ¶ 10.

Roseberry–Andrews alleges that she was harmed in a number of ways while serving at the DCMA. Broadly speaking, her allegations fall into two categories. First, Roseberry–Andrews alleges that two of her active-duty orders should have been medically extended due to an ankle injury

that she suffered, which would have provided her various employment-related benefits. Second, she alleges that various Air Force personnel retaliated against her in a number of ways for claiming that certain Air Force personnel had engaged in improper conduct.

1. Roseberry–Andrews' Ankle Injuries

While Serving on Active–Duty Orders

Roseberry–Andrews injured her ankle

twice while serving on active-duty orders. She was placed on active-duty orders from January 1, 2003, to May 28, 2004. AR 5. In August 2003, she fell while conducting agility and obedience training with a show dog, severely injuring her left ankle. Compl. ¶ 39; AR 8. The injury was determined to be in the "line of duty," meaning she was on active duty and did not act negligently or irresponsibly in causing it. Compl. ¶ 40; AR 30–31. On March 25, 2004, Roseberry–Andrews underwent reconstructive ankle surgery. Compl. ¶ 42. After the surgery, she went on convalescent leave for thirty days because she could not drive to work. Id. ¶¶ 48–50, 55. When she returned to work, Roseberry–Andrews expected to be placed on active duty while undergoing physical therapy, but instead she was placed on incapacitation pay for six months. Id. ¶¶ 56–57, 59. Thus, her active-duty orders for this tour ended on May 28, 2004. AR 8.

In November 2005, DCMA selected Roseberry–Andrews for an active-duty deployment to the Middle East from September 2, 2006, to April 15, 2007. Id. ¶ 82. During that deployment, she reinjured her ankle. Id. ¶ 84. Upon returning to the United States, her post-deployment physician referred her to an orthopedic clinic. Id. ¶ 85. An orthopedic examination

revealed that Roseberry–Andrews' ankle was broken in two places, necessitating two more surgeries and additional physical therapy. Id. ¶ 86. Roseberry–Andrews was placed on "Medical Hold" and her active-duty orders were not extended beyond April 15, 2007. Id. ¶¶ 82, 87–88.

2. Retaliation Against Roseberry–Andrews

Roseberry–Andrews also alleges that various Air Force personnel engaged in "unlawful personnel practices." Id. ¶ 11. She claims that when she refused to participate in those practices, those personnel, including Captain Michael Goodwin and Colonel Mary Purdue, retaliated against her in number of ways. For instance, Roseberry–Andrews alleges that:

• In February 2004, Roseberry–Andrews received a Letter of Counseling alleging that she sent an email to Captain Goodwin that was "condescending, confrontational, and disrespectful." Id. ¶¶ 28–29.

• In March 2004, Colonel Purdue called a military human resources office to inquire whether Roseberry–Andrews had been "erroneously enlisted" in hopes of removing her from the military. Id. ¶¶ 27, 35; AR 5. She was properly enlisted. Compl. ¶ 36.

• Before Roseberry–Andrews' ankle surgery in March 2004, Colonel Purdue called Walter Reed National Military Medical Center to see whether the surgery could be cancelled and whether Roseberry–Andrews could return to work immediately after the surgery. Id. ¶¶ 45–54. The hospital declined these requests. Id. ¶¶ 48, 54.

• On May 18, 2004, Lieutenant Colonel Karen Cox issued a Letter of Reprimand to Roseberry–Andrews and established an Unfavorable Information File. Id. ¶¶ 67, 71; AR 129–35.

• In June 2005, Captain Goodwin issued an unfavorable Enlisted Performance Report ("EPR") stating that, among other things, he had "lost faith and confidence in [Roseberry–Andrews'] ability to conduct herself in a manner befitting a [Senior Non–Commissioned Officer]." Compl. ¶¶ 72–73; AR 136–37; Def.'s MTD at 6 n.1.

• After Roseberry–Andrews had redeployed in April 2007, she requested to be transferred to the DCMA General Counsel's Office ("DCMA–GC") as an Advisor–Paralegal. Compl. ¶ 92. DCMA–GC submitted the transfer request, AR 170–71, but Michael McLaughlin (then the Director of Human Resources at DCMA) instead converted the billet for Roseberry–Andrews' paralegal position to an Aircraft Avionics position in Palmdale, California. Compl. ¶¶ 100–102; AR 172. McLaughlin informed Roseberry–Andrews that she would be moved to the Individual Ready Reserve unless she could find another position in her specialty in six months. AR 172.

• Roseberry–Andrews did not receive payment for 105 days of work that she performed between July 1, 2008, and October 13, 2008. Compl. ¶ 96.

• On April 1, 2009, McLaughlin and others transferred Roseberry–Andrews to the Individual Ready Reserve. Id. ¶ 104. Roseberry–Andrews ultimately was able to reenlist after briefing the Chief of Military Personnel for the Air Force Reserve. Id. ¶¶ 109–112.

At the time the complaint was filed, Roseberry–Andrews continued to serve as an IMA reservist in the Air Force. Id. ¶ 3.

B. Roseberry–Andrews' Efforts to Seek Redress From the Board

Roseberry–Andrews has sought redress for these grievances from the Board several times. On November 29, 2007, she filed her first application. Id. ¶ 115; AR 14–29. Brought pursuant to 10 U.S.C. § 1552, AR 14, it requested that (1) her active-duty orders ending in May 2004 and April 2007, respectively, be medically continued due to her ankle injury

and that she be paid associated back pay and medically-related costs, (2) that her position be transferred to DCMA–GC effective March 20, 2008, and (3) that several military records be expunged. Compl. ¶ 116; AR 4. On March 23, 2009, the Board retroactively extended the end date of Roseberry–Andrews' first active-duty orders from May 28, 2004, to December 28, 2004, but denied all the other relief she had requested. AR 11–13.

On May 29, 2009, Roseberry–Andrews filed a petition for reconsideration with the Board. Compl. ¶ 139. In addition to the relief requested in her original petition, Roseberry–Andrews also requested pay for 105 days she allegedly worked in 2008, placement on an active-duty tour in the DCMA General Counsel's Office, and favorable changes to two EPRs (proposing, for example, to change "Ineffective" to "Exceptionally effective leader," AR 136, 401). See AR 393–416; Compl. ¶¶ 138–139. On January 18, 2011, the Board again denied relief, concluding that the bulk of her application "consist[ed] of ... information already addressed by the previous Board." AR 176; Compl. ¶ 140.

At this point, Roseberry–Andrews' counsel wrote a number of letters to the Executive Director of the Board complaining that the Board had denied Roseberry–Andrews due process. See AR 1873–77 (Apr. 27, 2011 Ltr.); AR 1870–71 (Oct. 5, 2011 Ltr.); AR 1867–69 (Apr. 20, 2012 Ltr.). These letters incorporated her previous requests for relief and also added requests for a promotion and associated back pay as well as retroactive placement on active-duty orders from September 1, 2010, until the Board completed reviewing her case. AR 1867–69. On October 23, 2012, the Board denied the majority of the relief she had requested, but it did further extend the end date of her first active-duty order from December 28, 2004, to September 9, 2005. AR 806.

On November 30, 2012, Roseberry–Andrews' counsel wrote a letter to the Director of the Board requesting a meeting. AR 1909–20. On January 2, 2013, the Director responded that he would not meet with Roseberry–Andrews' counsel, that the Board's decisions were thoroughly considered, and that Roseberry–Andrews could seek further relief in federal court. AR 1921.

C. Roseberry–Andrews' Complaint

On October 15, 2015, Roseberry–Andrews filed this action. See ECF No. 1. She asserts that this Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq. Compl. ¶¶ 1–2. She also asserts that she has exhausted her administrative remedies and that her claims are timely pursuant to the six-year statute of limitations set forth in 28 U.S.C. § 2501, the statute governing the timeliness of claims over which the Court of Federal Claims has jurisdiction. Compl. ¶¶ 5–6. She appears to assert a single cause of action, under the APA. Id. ¶¶ 224–231.

The complaint...