Straughter v. United States
| Decision Date | 20 February 2015 |
| Docket Number | No. 14-565C,14-565C |
| Parties | WILLIAM E. STRAUGHTER, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
ORIGNAL
Military pay claim; time-bar attributable to expiration of the limitations period specified in 28 U.S.C. § 2501; inability to transfer case under 28 U.S.C. § 1631 because of request for monetary relief
William E. Straughter, pro se, Long Beach, California.
Joshua D. Schnell, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., for defendant. With him on the brief were Joyce R. Branda, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Martin F. Hockey, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C.
Plaintiff, William E. Straughter, seeks review of a decision by the Air Force Board for Correction of Military Records ("Correction Board" or "the Board") denying him reinstatement in the United States Air Force ("Air Force"). Mr. Straughter contends that the Board's decision was arbitrary, capricious, unsupported by substantial evidence, or contrary to law. Pending before the court is the government's motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the Court of Federal Claims ("RCFC"), and, in the alternative, a motion for judgment upon the administrative record pursuant to RCFC 52.1.
Mr. Straughter served in the Air Force for over 17 years, from 1972 until his honorable discharge in 1989. Compl. at 2, 4. The case now before the court ostensibly arises from events that occurred in 1987, prior to the end of his last enlistment period. Compl. at 4. At that time, Mr. Straughter allegedly received by mail a preapproved application for a credit card from Military and Professional Service Organization ("MPSO") listing his name, address, and rank and requesting that he supply some additional personal information including his social security number, phone number, and date of birth, and return the application. Compl. at 2. Mr. Straughter completed the application but neglected to change the rank listed from "0-2" (1st Lieutenant) to "E-5" (Staff Sergeant), his correct rank. Compl. at 2; see also AR 11.2 He alleges that he did not submit the application but rather placed it in his desk drawer, where it remained forgotten for a few months until he eventually cleaned his desk and discarded it. Compl. at 2. On June 3, 1988, Mr. Straughter was notified that the application had been presented to his commander, who planned to impose nonjudicial punishment against him under Article 15 of the Uniform Code of Military Justice ("UCMJ"), 10 U.S.C. § 815,3 for his impersonation of an officer or agent of superior authority under 10 U.S.C. § 934 ("Article 134"). Compl. at 2.4 Ultimately, on July 5, 1988, his commander found that Mr. Straughter attempted to wrongfully and willfully impersonate a commissioned officer and "imposed a punishment ofreduction in grade from staff sergeant to sergeant [sic - senior airman (E-4)] with extra duty for 3 hours a day for 14 days." Compl. at 3-4. Thus, then-Staff Sergeant Straughter was found to have violated 10 U.S.C. § 880 (Attempts), not Article 134. Compl. at 3; see also AR 2. Subsequently, despite the fact that Mr. Straughter's supervisor recommended him for reenlistment, on December 30, 1988, due to the nature and outcome of his Article 15 offense, Mr. Straughter's commander did not select him. Compl. at 4; see also AR 2. Mr. Straughter appealed his commander's decision to the Deputy Assistant Secretary of Manpower, Resources & Military Personnel but his appeal was denied and he was honorably discharged from the Air Force on July 10, 1989. Compl. at 4; see also AR 3.
On July 26, 1995, Mr. Straughter sought review by the Air Force Board for Correction of Military Records, requesting reinstatement so he could serve 20 years before retiring. Compl. at 4-5; see Def's Mot. to Dismiss and, in the Alternative, Mot. for Judgment upon the Admin. Record ("Def's Mot.") at 2, ECF No. 10. The basis for Mr. Straughter's request was his belief that the denial of his right to reenlist constituted double jeopardy under the Fifth Amendment because he had already received non-judicial punishment for the same Article 15 offense. Compl. at 4-5; see also Def's Mot at 2-3. His request was denied. AR 5 (Record Proceedings by Board (Aug. 28, 1996)). In its decision, the Board explained that Mr. Straughter's double jeopardy argument lacked merit because "[t]he same offense may give rise both to action under the military justice system and administrative action ... without triggering the constitutional prohibition on double jeopardy." AR 4. One member of the Board voted to grant but did not submit a minority report. AR 5.
In October 2012, Mr. Straughter asked the Board to reconsider his request for reinstatement. Def's Mot. at 3 (). On March 26, 2013, the Board denied his request on the grounds that Mr. Straughter failed to present any newly discovered relevant evidence. Id. The following month, on April 23, 2013, Mr. Straughter again appealed to the Board, citing the additional facts that the credit card application that prompted the incident in 1987 had never been submitted or signed. Compl. at 5. The Board denied Mr. Straughter's request, noting that "reconsideration of a previously denied application is authorized only where newly discovered relevant evidence is presented which was not reasonably available when the application was originally submitted." AR 75.
Mr. Straughter filed his complaint in this court on July 2, 2014. Compl. at 1. Mr. Straughter requests declaratory relief, or, in the alternative, injunctive relief, in addition to monetary damages, including "all back pay[] and future military retirement entitlements" of an amount "exceeding $10,000." Compl. at 1, 8. The government has filed a motion to dismiss for lack of subject matter jurisdiction and, in the alternative, a motion for judgment upon the administrative record. Def's Mot. at 1.
Before addressing the merits, a "court must satisfy itself that it has jurisdiction to hear and decide a case." Hardie v. United States, 367 F.3d 1288, 1290 (Fed. Cir. 2004) (quoting PIN/NIP, Inc. v. Platte Chem. Co., 304 F.3d 1235, 1241 (Fed. Cir. 2002) (citing View Eng'g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963 (Fed. Cir. 1997))). In evaluating a motion to dismiss for lack of subject matter jurisdiction, the court will ordinarily "consider the facts alleged in the complaint to be true and correct." Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Air Prod. & Chems., Inc. v. Reichhold Chems., Inc., 755 F.2d 1559, 1562 n.4 (Fed. Cir. 1985)). However, when the court's subject matter jurisdiction has been called into question by a motion filed under RCFC 12(b)(1), the burden of establishing the court's jurisdiction rests upon the party seeking to invoke it, McNutt v. Gen. Motors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936), and this burden must be proven by a preponderance of the evidence, Reynolds, 846 F.2d at 748 ().
Mr. Straughter premises this court's jurisdiction on the Tucker Act. Compl. at 1. The Tucker Act grants this court "jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(1). However, the Tucker Act alone does not create a substantive right to relief. See United States v. Testan, 424 U.S. 392, 398 (1976); Martinez v. United States, 333 F.3d 1295, 1302-03 (Fed. Cir. 2003) (en banc). Rather, "[a] substantive right must be found in some other source of law." United States v. Mitchell, 463 U.S. 206, 216 (1983) (en banc). In essence, the Tucker Act waives the government's sovereign immunity with respect to claims deriving from a money-mandating source of law. See Testan, 424 U.S. at 400-01. Accordingly, to establish that this court has subject matter jurisdiction under the Tucker Act, the plaintiff must first point to an independent, substantive source of law that mandates payment from the United States for the injury suffered. Id. at 400; see also Ferreiro v. United States, 501 F.3d 1349, 1351-52 (Fed. Cir. 2007) ().
Although not directly invoked by Mr. Straughter, the Military Pay Act, codified at 37 U.S.C. § 204, serves as the independent, money-mandating provision that enables him to bring his wrongful discharge claim within the court's Tucker Act jurisdiction. See Martinez, 333 F.3d at 1303 ( ). In monetary actions brought under the Tucker Act, this court has the authority to review the actions of correction boards and grant relief if the court finds that the correction board's decision was "arbitrary, capricious, unsupported by substantial...
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