Deason v. United States

57 Fed. Cl. 266, 2003 U.S. Claims LEXIS 201, 2003 WL 21689595
CourtUnited States Court of Federal Claims
DecidedJuly 16, 2003
DocketNo. 03-490 C
StatusPublished
Cited by2 cases

This text of 57 Fed. Cl. 266 (Deason 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
Deason v. United States, 57 Fed. Cl. 266, 2003 U.S. Claims LEXIS 201, 2003 WL 21689595 (uscfc 2003).

Opinion

OPINION

HEWITT, Judge.

This cases arises out of plaintiffs separation from the United States Air Force on March 8, 1985. Defendant’s Motion to Dismiss (Def.’s Mot.) at 1. The court finds that the claim is time-barred under the recent decision of the United States Court of Appeals for the Federal Circuit in Martinez v. United States, 333 F.3d 1295 (Fed.Cir.2003).

I. Background

Plaintiff was a member of the United States Air Force from February 3, 1978, until March 8,1985, when he was involuntarily separated. Def.’s Mot. at 2; Appendix to Defendant’s Motion to Dismiss (Def.’s App.) at 5. While plaintiff was given an honorable discharge, the stated reason for the involuntary separation was homosexuality. Def.’s Mot. at 2; Def.’s App. at 5. Plaintiff claims that this stated reason was in error, and that error, along with an improper reenlistment code,1 prevented him from rejoining the service and “invited discrimination, which discouraged and prevented the plaintiff from using the document for purpose of gainful employability in civilian life.” 2003 Complaint (Compl.) 113 (emphasis in original). Based on several considerations,2 plaintiff re[268]*268quests the court “determine that the plaintiff has submitted enough evidence to establish reasonable doubt needed to correct, restore, and bring relief from accusations brought against him, and that, he was improperly discharged and should be compensated for loss of time in service.” Id. 1117 (emphasis in original).

Plaintiff initially applied to the Air Force Discharge Review Board to correct these errors, and his requests were denied on November 12, 1986. Def.’s Mot. at 2; Def.’s App. at 12-17. Plaintiff subsequently petitioned the Air Force Board for Correction of Military Records (AFBCMR) several times for relief.3 Plaintiffs Replication to Defendant’s Motion to Dismiss (Pl.’s Opp.) at 1. On February 7, 2002, the reason for discharge was changed to Secretarial Authority. Def.’s Mot. at 3. By letter dated March 28, 2003, plaintiff was notified that his reenlistment code had been changed administratively.4 Pl.’s Opp. at 2. On March 3, 2003, plaintiff filed this claim with the court. Now before the court are Defendant’s Motion to Dismiss and plaintiffs opposition thereto, Defendant’s Reply in Support of Its Motion to Dismiss (Def.’s Reply), and Plaintiffs Reply to Defendant’s Reply in Support of Its Motion to Dismiss (Pl.’s Reply). For the following reasons, defendant’s Motion to Dismiss is GRANTED.

II. Discussion

A. Motion to Dismiss Standard

Rule 12(b)(6) of the Court of Federal Claims (RCFC) governs dismissal for “failure to state a claim upon which relief can be granted.” RCFC 12(b)(6). Under RCFC 12(b)(6), the court must accept as true the facts alleged in the complaint, Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999), and must construe all reasonable inferences in favor of the non-movant, Sommers Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed.Cir. 2001). A court must grant the motion “when the facts asserted by the plaintiff do not entitle him to a legal remedy.” Boyle v. United States, 200 F.3d 1369, 1372 (Fed.Cir.2000). In making this determination, “pleadings drafted by pro se plaintiffs are held to a less stringent standard than pleadings drafted by attorneys.” Thomas v. United States, 56 Fed.Cl. 112, 114 (2003) (citing Troutman v. United States, 51 Fed.Cl. 527, 531 (2002)). RCFC 12(b)(6) provides that where a motion to dismiss is filed and “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in RCFC 56.” RCFC 12(b)(6); see also Rotee Indus., Inc. v. Mitsubishi Corp., 215 F.3d 1246, 1250 (Fed.Cir.2000).

B. Statute of Limitations

[1] Defendant argues that this case falls well outside the six-year statute of limitations set for this court by 28 U.S.C. § 2501 (1992). Def.’s Mot. at 7-9. Plaintiff was discharged from the Air Force on March 8, 1985. Compl. H 5. Defendant argues that plaintiffs cause of action accrued on that date, and therefore the six-year statute of limitations expired on March 8, 1991. Def.’s Mot. at 8. Defendant further argues that plaintiffs subsequent action at the AFBCMR did not create a new cause of action or toll the statute of limitations. Id. at 8-9.

Plaintiff counters that because there was never a six-year gap between the claims he filed with the AFBCMR, and because each claim was “intended to reopen, or, start a new claim with new and material relevant evidence,” the statute of limitations has not expired. Pl.’s Opp. at 1. According to plaintiff, “[tjhere would be no need for [him] to request his issues be heard before the U.S. Court of Federal Claims, had the AFBCMR made a favorable decision upon his behalf in regard to the relief sought.” Id. at 1-2. Accordingly, plaintiff believes that the last date on which plaintiff requested his file be [269]*269reopened for correction, June 23, 2002, is the date on which his claim accrued. Id. at 2.

The effect of proceedings before a corrections board on the accrual of a military pay case was recently addressed by the Federal Circuit in Martinez v. United States, 333 F.3d 1295 (Fed.Cir.2003). The court reviewed a long line of cases rejecting the argument that these claims do not accrue until after the correction board has entered a final decision denying relief. Id. at 1303 (internal citations omitted). These decisions were based on the conclusion that a petition to the correction board is a permissive, not mandatory, administrative remedy. Id. at 1303-04. Because a plaintiff is not required to exhaust his or her administrative remedies by going to the corrections board, a petition to the board cannot toll the statute of limitations. Id. at 1304. Further, the court found that “Congress did not authorize postponement of the running of the limitations period while optional administrative remedies were being exhausted.” Id. at 1306. Because Congress did not require “service members ... to exhaust their remedies in the correction boards before filing suit under the Tucker Act,” the court could not now authorize the statute of limitations to be tolled under these circumstances. Id. Under the rule stated in Martinez, plaintiffs claim accrued on March 8, 1985, and the statute of limitations expired on March 8, 1991, well before this case was filed.

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Related

Jefferson v. United States
60 Fed. Cl. 433 (Federal Claims, 2004)
Deason v. United States
83 F. App'x 332 (Federal Circuit, 2003)

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Bluebook (online)
57 Fed. Cl. 266, 2003 U.S. Claims LEXIS 201, 2003 WL 21689595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deason-v-united-states-uscfc-2003.