Cooper v. United States

47 Fed. Cl. 115, 2000 U.S. Claims LEXIS 124, 2000 WL 863024
CourtUnited States Court of Federal Claims
DecidedJune 29, 2000
DocketNo. 99-920 C
StatusPublished
Cited by3 cases

This text of 47 Fed. Cl. 115 (Cooper 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
Cooper v. United States, 47 Fed. Cl. 115, 2000 U.S. Claims LEXIS 124, 2000 WL 863024 (uscfc 2000).

Opinion

ORDER

MOODY R. TIDWELL, III, Senior Judge.

This case is before the court on defendant’s motion to dismiss. Plaintiff, Bobby L. Cooper, claims that his conviction and subsequent discharge from the United States Army in 1967 was illegal. Plaintiff seeks back pay totaling $175,000 plus $4,825,000 in other damages. Defendant moves to dismiss plaintiffs claim pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims (RCFC) because the claim is barred by the statute of limitations. The court hereby grants defendant’s motion to dismiss.

BACKGROUND

Plaintiff, Bobby L. Cooper, brought his complaint pro se. Mr. Cooper, a former member of the United States Army, was convicted on February 15, 1967, at a general court-martial of charges of absence without leave, disobeying an order and creating a disturbance in violations of Articles 86, 90, and 94, respectively, of the Uniform Code of Military Justice. The general court-martial sentenced plaintiff to be dishonorably discharged from service, to forfeit all pay and allowances, to be confined to hard labor for five years and to be reduced to the grade of private E-l. Upon appeal, the Army authorities set aside the conviction of the charge for being absent without leave and reduced the length of confinement at hard labor initially to 4 years, and ultimately to Vk years.

Mr. Cooper unsuccessfully challenged his 1967 conviction six times. Plaintiff appealed his conviction to the United States Army Board of Review, and subsequently appealed that decision in the United States Court of Military Appeals. Twenty-two years later, in 1989, plaintiff submitted an application to the Army Board for Correction of Military Records requesting a recharacterization of his dishonorable discharge. In 1995 plaintiff filed a petition for habeas corpus before the United States District Court for the Eastern District of Kentucky, London Division, and subsequently appealed that decision to the United States Court of Appeals for the Sixth Circuit. Lastly, plaintiff submitted yet another application to the Army Board of Correction of Military Records, which was denied in 1999.

On November 3, 1999, plaintiff filed his complaint in this court, alleging a host of claims contributing to the alleged illegal conviction and dishonorable discharge. Among them are claims that he was placed in segregation without being charged or read his rights; the conviction was invalid because immunity was granted to a witness; the jury received improper instructions as to both the law and procedure; a denial of equal protection as his rights were not reinstated after five years; denial of due process because all charges should have been dropped when the basis for confinement was overturned and dismissed; ineffective assistance of counsel; and denial of a right to a hearing before the Board of Corrections of Military Records. Plaintiff seeks back pay, reinstatement of benefits, correction of his military records and punitive damages.

Defendant filed a motion to dismiss plaintiff’s complaint on January 24, 2000, contend[117]*117ing that the complaint was filed more than thirty years after plaintiffs discharge — well beyond the 28 U.S.C. § 2501 (1994) six-year statute of limitations. For the reasons below, defendant’s motion to dismiss is granted.

DISCUSSION

In evaluating defendant’s motion to dismiss for lack of subject matter jurisdiction, the court must construe the facts in the complaint in the light most favorable to plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), and accept any undisputed allegations of fact as true, see Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746, 747-48 (Fed.Cir. 1988). See also Bond v. United States, 43 Fed.Cl. 346, 348 (1999). However, plaintiff bears the ultimate burden of establishing the court’s jurisdiction over his claims. See McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Reynolds, 846 F.2d at 747.

For the purposes of this motion to dismiss, defendant accepts as true the factual allegations set forth in the complaint but argues that plaintiffs claim is barred by the six-year statute of limitations governing claims brought before this court. See 28 U.S.C. § 2501. In particular, defendant maintains that plaintiffs claim was filed well beyond the statute of limitations because the claim first accrued when plaintiff was discharged from military service in 1967. Plaintiff must establish that his claims are not barred by the statute of limitations.

I. Jurisdiction

In his complaint plaintiff requests punitive damages and additional relief for the emotional and mental anguish he experienced as a result of his dishonorable discharge. Although plaintiff might have been entitled to such relief under the Federal Tort Claims Act, 28 U.S.C. §§ 2671, 2674, 2675(a) (1994), this court cannot hear plaintiffs tort claim against the government because the district courts have exclusive jurisdiction over the Federal Torts Claims Act. See 28 U.S.C. § 1346(b); see also Cottrell v. United States, 42 Fed.Cl. 144, 147 (1998); Sanders v. United States, 34 Fed.Cl. 75, 79 (1995) (citing Martinez v. United States, 26 Cl.Ct. 1471, 1476 (1992), aff'd without opinion, 11 F.3d 1069,1993 WL 382586 (Fed.Cir.1993)).

As for plaintiffs claims for back pay, this court generally possesses jurisdiction when enlisted members are involuntarily separated prior to the end of their terms of enlistment and seek reinstatement and back pay. See 37 U.S.C. § 204 (1994 & Supp. II 1996); Sherwin v. United States, 42 Fed.Cl. 672, 675 (1999) (citing Sargisson v. United States, 913 F.2d 918, 920 (Fed.Cir.1990)). Defendant contends that plaintiffs claims are outside the subject matter jurisdiction of this court due to the expiration of the statute of limitations.

Pursuant to 28 U.S.C. § 2501, “[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.” Moreover, the statute of limitations is “jurisdictional in nature and, as an express limitation on the waiver of sovereign immunity, may not be waived.” Hart v. United States, 910 F.2d 815, 818-19 (Fed.Cir. 1990); see Bath Iron Works Corp. v. United States,

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Bluebook (online)
47 Fed. Cl. 115, 2000 U.S. Claims LEXIS 124, 2000 WL 863024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-united-states-uscfc-2000.