Ackerman v. United States

107 Fed. Cl. 612, 2012 U.S. Claims LEXIS 1514, 2012 WL 6005378
CourtUnited States Court of Federal Claims
DecidedNovember 30, 2012
DocketNo. 12-336C
StatusPublished
Cited by3 cases

This text of 107 Fed. Cl. 612 (Ackerman v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ackerman v. United States, 107 Fed. Cl. 612, 2012 U.S. Claims LEXIS 1514, 2012 WL 6005378 (uscfc 2012).

Opinion

MEMORANDUM OPINION AND FINAL ORDER

BRADEN, Judge.

I. RELEVANT FACTS1 AND PROCEDURAL HISTORY.

On June 30, 1993, Edwin M. Ackerman (“Plaintiff’) enlisted in the United States Army (“Army”) for a term of three years, with a discharge date of June 29, 1996. Gov’t App. at A-l. In 1994, Plaintiff pled guilty to charges of rape and larceny. Gov’t App. at A-3. The Army sentenced Plaintiff to confinement for life; reduced his grade to the lowest enlisted rank (E-l); and removed him from service with a dishonorable discharge. Gov’t App. at A-3. After his convie[614]*614tion, Plaintiff was transferred to the State of Colorado, where he was convicted for a separate crime of kidnapping and sentenced to a thirty-five year prison sentence to run concurrently with the prior Army sentence. Gov’t App. at A-5.

On November 14,1995, Plaintiffs appeal of his Army conviction to the United States Army Court of Criminal Appeals was denied. Gov’t App. at A-7. On December 18, 1996, the United States Court of Appeals for the Armed Forces denied Plaintiffs petition for review. Gov’t App. at A-8. On October 10, 1997, Plaintiff was discharged from the Army. Gov’t App. at A-ll. Plaintiff currently resides in the Colorado State Penitentiary. Compl. at 1. When Plaintiffs Colorado sentence is completed, he will be released to the Army to serve his court-martial sentence. Gov’t App. at A-8.

On November 1, 2007, Plaintiff filed a pro se Complaint in the United States Court of Federal Claims alleging entitlement to back pay for the period of November 1994 to August 1998, and requested relief from an alleged Due Process violation. Gov’t App. at A-13. The court considered the November 1, 2007 Complaint as a monetary claim for back pay, pursuant to the Military Pay Act, 37 U.S.C. § 204(a)(1), but dismissed the Complaint as barred by the statute of limitations, 28 U.S.C. § 2501. See Ackerman v. United States (“Ackerman I ”), 2009 WL 586121, at *1-2 (Fed.Cl. Feb. 27,2009).

On May 14, 2012, Plaintiff filed a second Complaint in the United States Court of Federal Claims seeking back pay from November 1, 1994 to October 10, 1997 or, in the alternative, a new trial or release from prison into the Army’s custody to serve his suspended sentence (“Compl.”). The May 14, 2012 Complaint alleges that the trial judge presiding over Plaintiffs Court Martial issued an Order that Plaintiff is entitled to receive military pay at the E-l level. Compl. at 1. In addition, the May 14, 2012 Complaint alleges that Plaintiffs imprisonment by the State of Colorado violates the Due Process Clause, since he initially was sentenced by the Army, so that the State of Colorado’s sentence should run concurrently with the Army sentence. Compl. at 1. The May 14, 2012 Complaint also alleges that Plaintiff was detained without access to military law until February 2011. Compl. at 2. In addition, if Plaintiff had been placed in Army custody, he would have been able to pursue his Due Process violation claim in a timely fashion. Compl. at 2.

On July 13, 2012, the Government filed a Motion To Dismiss, arguing that: (1) this action is barred by the preclusive effect of Ackerman I; and (2) Plaintiffs back pay claim is barred by the statute of limitations in 28 U.S.C. § 2501.

On July 18, 2012, Plaintiff filed a Response, reiterating that he was unable effectively to research and timely file his claim as a result of Due Process violations detailed in the May 14, 2012 Complaint. On July 18, 2012, Plaintiff also filed a Claim For Compensation For Violation Of Plaintiff Rights Due To Denial Of Access To Uniform Code Of Military Justice. The July 18, 2012 Claim also asserts various claims for damages for alleged violations of the Due Process Clause. That Claim also alleges that the Assistant Attorney General who represented the State of Colorado in the proceeding in the Logan County District Court for the Thirteenth Judicial District of Colorado never filed an oath of office, as required by C.R.S.A. § 20-1-201, and that the Clerk of the Logan County District Court improperly dismissed Plaintiffs Motion For Default Of Judgment, because the Assistant Attorney General’s oath was never filed. The July 18, 2012 Claim further asserts Plaintiff is owed for four categories of damages: $150.00 per day for being denied access to military law from October 1995 until February 2011; $300.00 per day in punitive damages for the same violation; attorney’s fees of $90.00 per hour for inadequate access to military law during this time; and finally, $131,230 in punitive damages for the Logan County District Court Clerk’s disregard of Plaintiff s Due Process rights.

On August 7, 2012, the Government filed a Response to Plaintiffs July 18, 2012 Claim For Compensation, adding that the court does not have subject matter jurisdiction to entertain Plaintiffs new allegations, because: (1) Plaintiff has not identified a source of substantive law that creates the right to [615]*615money damages he seeks; (2) the court has jurisdiction only over claims against the United States, and not over claims against the State of Colorado or Colorado state officials; (3) the court does not have jurisdiction to review state court judgments; and (4) to the extent that the Claim alleges that state officials engaged in fraud or misrepresentation, these are tort claims falling outside the court’s jurisdiction. On August 7, 2012, the Government also filed a Reply.

On August 23, 2012, Plaintiff filed a Reply to the Government’s August 7, 2012 Response, agreeing to combine all of his claims and repeating that he was impeded in filing the May 14, 2012 Complaint due to actions by the State of Colorado depriving him of access to military law and military courts. Plaintiff adds that the Government’s August 7, 2012 Response affirmed that: Plaintiff was owed back pay and therefore the United States was in breach; according to 27 C.F.R. § 72.11, all crimes are commercial, and therefore, the issue of Colorado’s alleged violations is within the court’s jurisdiction; and Plaintiffs plea agreement with the Army was an implied contract that the Government breached, when Plaintiff did not receive back pay.

On October 18, 2012, Plaintiff filed a Motion For Status Of Case. On November 5, 2012, the Government filed a Response.

II. DISCUSSION.

A. Jurisdiction.

The Tucker Act authorizes the United States Court of Federal Claims “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 unliq-uidated damages in eases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act, however, is “only a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages ...

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Cite This Page — Counsel Stack

Bluebook (online)
107 Fed. Cl. 612, 2012 U.S. Claims LEXIS 1514, 2012 WL 6005378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ackerman-v-united-states-uscfc-2012.