ORIGINAL

am the filim’teh étateg @uurt of erberal @IaimEII-ED

No. 14-565C
FEB 2‘ 0 2015
(Flled: February 20, 2015) U.S_ COURT OF
FEDERAL CLAIMS
********************************** )  pay claim; time_bar attributable
) to expiration of the limitations period
WILLIAM E. STRAUGHTER, ) specified in 28 U. S.C. § 2501; inability
) to transfer case under 28 U.S.C. § 1631
Plaintiff, ) because of request for monetary relief
)
v. )
)
UNITED STATES, )
)
Defendant. )
****$********$$$$$$$$$$$$$$$$$$$$$ ;

William E. Straughter, pro se, Long Beach, California.

Joshua D. Schnell, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, 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, DC.

OPINION AND ORDER

LETTOW, Judge.

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.

FACTS1

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” (1 st
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 of

 

“Fr —_

1The court’s findings of fact are based on the Administrative Record of the proceedings
before the Correction Board. See Bannum, Inc. v. United States, 

, 1357 (Fed. Cir,
2005) (“[T]he [c]ourt . . . is required to make factual findings under [what is now RCFC 52.1]
from the record evidence as if it were conducting a trial on the record”).

2“ARE _ _;’ refers to the Administrative Record, ECF No. 9-1, filed by the government
pursuant to RCFC 52. 1 (a).

3Nonjudicial punishment refers to specific limited punishment which may be awarded for
minor disciplinary offenses by a commanding officer or superior to members of the pertinent
command. In the Air Force, such punishment is termed “Article 15” in reference to Article 15 of
the UCMJ, which, along with Part V of the Manual for Courts-Martial, constitutes the basic law
governing procedures for nonjudicial punishment. See AR 28 (“Fact Sheet Article 15
Information”).

4Article 134 is a general article that provides in pertinent part:

Though not specifically mentioned in this chapter, all disorders and neglects to
the prejudice of good order and discipline in the armed forces, all conduct of a
nature to bring discredit upon the armed forces, and crimes and offenses not
capital, of which persons subject to this chapter may be guilty, shall be taken
cognizance of by a general, special, or summary court-martial, according to the
nature and degree of the offense, and shall be punished at the discretion of that
court.

10 U.S.C. § 934,,

reduction 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 (citing AR 47 (Letter from Michael F. LoGrande, Executive
Director, Air Force Board for Correction of Military Records (Mar. 26, 2013))). On March
26, 2013, the Board denied his request on the grounds that Mr. Straughter failed to present
any newly discovered relevant evidence. 

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.

ANALYSIS

A. Subject Matter Jurisdiction

Before addressing the merits, a “court must satisfy itself that it has jurisdiction to hear
and decide a case.” Hardie v. United States, 

, 1290 (Fed. Cir. 2004) (quoting
PIN/NIP, Inc. v. Platte Chem. Co, 

, 1241 (Fed. Cir. 2002) (citing View Eng ’g, Inc.
v. Robotic Vision Sys, Inc., 

, 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., 

, 748 (Fed. Cir. 1988) (citing Scheuer v. Rhodes, 

, 236 (1974); Air Prod. &
Chems., Inc. v. Reichhold Chems., Inc., 

, 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 1nd,, 

, 189 (1936), and this
burden must be proven by a preponderance of the evidence, 

(citing
Zunamon v. Brown, 

, 886 (8th Cir. 1969) (quoting 

, and
citing Jascourt v. United States, 

(Ct. C1. 1975))).

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. § 149l(a)(1).
However, the Tucker Act alone does not create a substantive right to relief. See United States v.
Testan, 

, 398 (1976); Martinez v. United States, 

, 1302-03 (Fed. Cir.
2003) (en banc). Rather, “[a] substantive right must be found in some other source of law.”
United States v. Mitchell, 

, 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 

. 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.

see also Ferreiro v. United States, 

, 1351—52 (Fed. Cir. 2007) (quoting
Fisher v. United States, 

, 1172 (Fed. Cir. 2005) (en banc in relevant part)).

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 

(“In the context of military discharge cases, the applicable ‘money-mandating’ statute
that is generally invoked is the Military Pay Act, 37 U.S.C. § 204 . . . . [A] plaintiff therefore
must allege that, because of the unlawful discharge, the plaintiff is entitled to money in the form
of the pay that the plaintiff would have received but for the unlawful discharge”). 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 evidence, or contrary to law.” 

(citing Porter v. United States, 

, 1311 (Fed. Cir. 1998); Armstrong v. United
States, 

, 761 (1974)).

In this instance, although the court would ordinarily have authority to adjudicate
Mr. Straughter’s claims, see Mitchell v. United States, 

, 896 (Fed. Cir. 1991)
(noting that this court has “extensive experience reviewing decisions of correction[] boards in
military pay cases”), it must consider the effect of the applicable statute of limitations. Under 28
U.S.C. § 2501, claims under the Tucker Act are subject to a six-year statute of limitations, and
that limitation serves as a condition of the government’s waiver of sovereign immunity and
constitutes a jurisdictional requirement. See John R. Sand & Gravel Co. v. United States, 552
US. 130 (2008). Section 2501 provides that “[e]very claim of which the United States Court of
Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years
after such claim first accrues.” 28 U.S.C. § 2501. A claim first accrues “when all the events
have occurred that fix the alleged liability of the government and entitle the claimant to institute
an action.” Ingram v. United States, 

, 1314 (Fed. Cir. 2009); see also Oceanic SS.
Co. v. United States, 

, 225 (1964). In a wrongful discharge case, a cause of action
for back pay accrues at the time of discharge. See 

. Mr. Straughter
was honorably discharged on July 10, 1989, almost twenty-five years before he filed his
complaint on July 2, 2014. Compl. at 4. Because Mr. Straughter did not file his complaint
within the six—year statute of limitations period, the court does not possess jurisdiction to
entertain his claims. See John R. Sand, 552 US. at 133—34 (holding that the Tucker Act’s statute
of limitations falls under the category of an “absolute [] kind of limitations period” and cannot be
tolled or waived by equitable considerations); see also Young v. United States, 

,
1384 (Fed. Cir. 2008) (applying John R. Sand in a military discharge case brought under the
Tucker Act and 37 U.S.C. § 204).

Notably, Mr. Straughter’s resort to the Correction Board does not influence or affect the
date of accrual of his claims. In Martinez, the Federal Circuit addressed a similar circumstance
where a plaintiff sought both reinstatement and an award of lost pay after a correction board
refused to expunge an Article 15 proceeding from his military record and void his discharge
from active duty. 

. Declining to overrule its decision in Hurick v. Lehman, 

(Fed. Cir. 1986),5 the Federal Circuit emphasized that requests made to correction
boards are regarded as permissive administrative remedies and are not mandatory prerequisites to
filing suit under the Tucker Act for wrongful discharge. See 

(“Congress did not authorize postponement of the running of the limitations period while
optional administrative remedies were being exhausted”). The court explained,

At the time of his separation, [the plaintiff] had a right to sue for improper
discharge and to obtain money if he could prove his case. At the time the
correction board acted, he still had that right. The injury caused by the separation
was not altered or exacerbated by the correction board action.

. Therefore, the fact that Mr. Straughter first sought a decision by the Board and then
reconsideration of the Board’s decision prior to filing a case in this court has no bearing on the
date of accrual of his claims. The date of his discharge is the proper date of accrual because that
was the date “when all the events [had] occurred that fix[ed] the alleged liability of the

5The court in Hurick held that the proper date of accrual of a wrongful discharge claim
brought by a former serviceman of the Navy was the date of 

.

5

government and entitle[d] [him] to institute an action.” 

; see also

.

In sum, the court does not have jurisdiction over Mr. Straughter’s claims.6

B. Possibility of Transfer

While dismissal is typically required as a matter of law if a court lacks jurisdiction to
decide the merits of a case, see Johnson v. United States, 105 Fed. C1. 85, 91 (2012), under
certain circumstances, the court may transfer the action to a federal court that would have
jurisdiction, see Gray v. United States, 69 Fed. C1. 95, 98 (2005). Pursuant to 28 U.S.C. § 1631,
transfer of a case is appropriate if “(1) the transferor court lacks jurisdiction; (2) the action could
have been brought in the transferee court at the time it was filed; and (3) transfer is in the interest
ofjustice.” Zoltek Corp. v. United States, 

, 1314 (Fed. Cir. 2012); see also
Christianson v. Colt Indus. Operating Corp, 486 US. 800, 819 (1988); Skillo v. United States,

, 744 (2005) (citing Kolek v. Engen, 

, 1284 (9th Cir. 1989);
Rodriguez v. United States, 

, 1559-60 (Fed. Cir. 1988); Sodexho Marriott Mgmt.,
Inc. v. United States, 

, 241 (2004)).7

The first and third elements required for transfer are satisfied here. First, the court has
established that it lacks jurisdiction to hear Mr. Straughter’s claims because they are time-barred.
Additionally, transfer would be in the interest of justice because Mr. Straughter has not yet had
an opportunity to have his claims heard by a court on the merits. See Galloway Farms, Inc. v.
United States, 

, 1000 (Fed. Cir. 1987) (“The phrase ‘if it is in the interest of justice’
relates to claims which are nonfrivolous and as such should be decided on the merits”) (citing
Zinger Constr. Co. v. United States, 

, 1055 (Fed. Cir. 1985)); cf Johnson, 

(declining to transfer case where the plaintiff had already brought two actions in the

3: _ _

 

6Given the resolution of Mr. Straughter’s claims on jurisdictional grounds, the court will
not address the government’s contentions that Mr. Straughter failed to state a claim upon which
relief may be granted or that it is entitled to judgment upon the administrative record. See Def.’s
Mot. at 9, 11.

 

728 U.S.C. § 1631 provides, in relevant part:

Whenever a civil action is filed in a court as defined in section 610 of this title . . '16'.
and th[e] court finds that there is a want of jurisdiction, the court shall, if it is in
the interest of justice, transfer such action or appeal to any other such court in
which the action or appeal could have been brought at the time it was filed or
noticed, and the action or appeal shall proceed as if it had been filed in or noticed
for the court to which it is transferred on the date upon which it was actually filed
in or noticed for the court from which it is transferred.

28 U.S.C. § 16312.-

transferee court on the same subject).8

The second element, however, is not met in this instance because there is no alternative
federal court in which Mr. Straughter could have originally filed his claims as currently pled.
Generally, two distinct avenues exist for current and former service members to bring civil
actions against the United States in federal court: (1) the Tucker Act, 28 U.S.C. § 1491, or the
Little Tucker Act, 28 U.S.C. §1346(a)(2); and (2) the Administrative Procedure Act (APA), 5
U.S.C. §§ 701-706, and the federal questionjurisdictional statute, 28 U.S.C. § 1331. See, e.g.,
Tootle v. Sec’y ofNavy, 

(DC. Cir. 2006); Randall v. United States, 

(4th Cir. 1996); Kidwell v. Dep ’t of Army, Bd. for Correction of Military Records, 

(DC. Cir. 1995); Ward v. Brown, 

(2d Cir. 1994); Mitchell, 

.9 Both the
APA and the Tucker Act waive the sovereign immunity of the federal government in certain
circumstances. See 

. The Tucker Act waives the government’s sovereign
immunity only with respect to claims deriving from a money-mandating source of law and grants
this court exclusive jurisdiction over claims exceeding $10,000. See 

n.2. Under the Tucker Act, in a military pay case, this court is authorized to award injunctive
relief only when the injunction is “an incident of and collateral to” and award of monetary relief.
See 28 U.S.C. § l49l(a)(2). By contrast, the APA’s waiver of sovereign immunity is limited to
cases seeking relief “other than money damages.” 5 U.S.C. § 702. In addition, review under the
APA is available only for “final agency action for which there is no other adequate remedy in a
court,” 5 U.S.C. § 704 (emphasis added), which has been interpreted by some, but not all, courts
to preclude judicial review under the APA when this court may award, or might have awarded,
an adequate remedy under the Tucker Act. Compare 

(“[R]egardless of the
amount in controversy, an action in a district court is proper under the federal question
jurisdiction statute, 28 U.S.C. § 1331, if a statute other than the Tucker Act [including the APA]
provides the necessary waiver of sovereign immunity”), and CH. Sanders Co. v. BHAP Hous.
Dev. Fund Co., 

, 119 (2d Cir. 1990) (“[T]he Tucker Act provides merely one
limited waiver of sovereign immunity”), with Alabama Rural Fire Ins. Co. v. Naylor, 

, 1230 (5th Cir. 1976) (“[T]he availability of a remedy in the Court of [Federal] Claims
under the Tucker Act has been held to be an adequate remedy [under Section 704 of the APA]”);

; 

.

Accordingly, because Mr. Straughter in his complaint specifically requests damages in an
amount “exceeding $10,000,” Compl. at 1, “[his] money-based complaint could not have been
brought in the district court in the first instance,” 

. As a consequence,

8Notably, Mr. Straughter was specifically advised by the Correction Board that he could
seek review by this court. See AR 78 (Letter from LoGrande to Straughter (June 12, 2014))
(“[P]ursuant to 5 U.S.C. § 701, et. seq. and 28 U.S.C. § 1491, Congress authorizes applicants,
such as yourself, to pursue review of final [Board] decisions through the US Court of [Federal]
Claims or appropriate US. District Court.”)).

9The APA entitles a person claiming to have suffered a legal wrong because of agency
action to judicial review of that action, 5 U.S.C. § 702, provided that the claim has first been
brought before a relevant agency and the agency has issued a final decision or disposition, 5
U.S.C. § 704.

the court “lack[s] authority under [S]ection 1631 to transfer it to a district court at this juncture.”

cannot address whether Mr. Straughter may initiate a new action in the federal
district court in the Central District of California under the general question statute and the APA
if he amends his complaint by limiting it to request solely nonmonetary relief.10 At least some
courts adhere to a “strict pleading requirement,” implicating Tucker Act jurisdiction only where
monetary damages are explicitly requested in the complaint. See 

(“[A]s
long as the sole remedy requested is declaratory or injunctive relief that is not ‘negligible in
comparison’ with the potential monetary recovery, . . . we respect the plaintiffs choice of
remedies and treat the complaint as something more than an artfully drafted effort to circumvent
the jurisdiction of the Court of Federal Claims.” ) (citations omitted); see also T 

(DC. Cir. 2006) (noting a determination that plaintiff is “unfit for duty” and eligible for
retirement would be of significant non-monetary value). Should Mr. Straughter bring a claim
under the APA, his action may not be time-barred. Claims brought under the APA, while subject
to a six-year statute of limitations period set forth in 28 U.S.C. § 2401, accrue on the date of
“final agency action.” 5 U.S.C. § 704; see, e.g., Sierra Club v. Slater, 

, 631 (6th
Cir. 1997). Here, it appears that Mr. Straughter received notice of the Board’s final decision in
2013. See AR 75 (“Absent judicial action, the Air Force considers your [Board] decision
final”); see also AR 78.11 Nonetheless, a statutory time-limitation on seeking review from a
correction board would have to be taken into account. See 10 U.S.C. §1553(a) (“A motion or
request for review [by a correction board] must be made within 15 years after the date of
discharge or dismissal.”).

10The Central District of California is the federal district that encompasses MR5
Straughter’s stated place of residence.

11After a suit for back pay has been dismissed in this court because the limitations
period has expired, the ability of a plaintiff to file an action in federal district court under the
APA seeking reinstatement and a correction of military records where back pay is not explicitly
requested may be an open question in the Court of Appeals for the Ninth Circuit. Compare

-20 (holding former nurse’s claims challenging discharge were proper
under the APA because the APA provided waiver of sovereign immunity separate from that
supplied by the Tucker Act); with 

(noting that for a plaintiff
requesting both monetary and nonmonetary damages, “[t]he fact that the complaint was untimely
filed in the Court of Federal Claims does not mean that court could not offer a full and adequate
remedy [under 5 U.S.C. § 704]; it merely means that [plaintiff] did not file his complaint in time
to take advantage of that remedy”); 

(holding that review of
serviceman’s case was proper under the APA because injunctive relief was the “essence” of his
complaint but noting “[t]his case is different from a case where the plaintiff brings an action . . .
after he has already been discharged” because “[i]n such a case, a successful plaintiff has a cause
of action for back pay”) (emphasis in original); and Mitchell, 

(holding service
member’s suit seeking active duty credit and back pay would receive adequate review under the
Tucker Act, triggering Section 704 of the APA to bar APA waiver of sovereign immunity).

8

CONCLUSION

For the reasons stated, the government’s motion to dismiss is GRANTED, and
Mr. Straughter’s complaint is dismissed pursuant to RCF C 12(b)(1) for lack of subject matter
jurisdiction. The clerk shall enter judgment in accord with this disposition.

No costs.

It is so ORDERED.

  

 

 

:harlesT. Lettovl/
Judge