Heim v. United States

45 F. App'x 921, 45 Fed. Appx. 921, 2002 U.S. App. LEXIS 18765, 2002 WL 31007820
CourtCourt of Appeals for the Federal Circuit
DecidedSeptember 6, 2002
DocketNo. 02-5004
StatusPublished
Cited by1 cases

This text of 45 F. App'x 921 (Heim v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heim v. United States, 45 F. App'x 921, 45 Fed. Appx. 921, 2002 U.S. App. LEXIS 18765, 2002 WL 31007820 (Fed. Cir. 2002).

Opinion

PER CURIAM.

In this military pay case, Richard E. Heim seeks review of the August 10, 2001 decision of the United States Court of Federal Claims in Heim v. United States, 50 Fed. Cl. 225 (2001)1, which granted the United States’ motion to dismiss Mr. Heim’s complaint. The United States Court of Federal Claims held Mr. Heim asserted claims barred under both the statute of limitations and the doctrine of res judicata. Alternatively, the court granted the United States’ motion to dismiss on the grounds that Mr. Heim failed to state a claim upon which relief could be granted. In particular, the court found that Mr. Heim’s complaint was not based upon a money-mandating statute from which back pay could be ordered. Because the Court of Federal Claims properly dismissed Mr. Heim’s complaint, this court affirms.

I.

Mr. Heim received his commission as a junior officer in the United States Army Reserve (USAR) on June 2, 1972. Mr. Heim’s performance early in his career was acceptable, such that he attained the rank of Captain on June 5, 1979. However, Mr. Heim later received two unfavorable Officer Evaluation Reports between December 4, 1979 and June 6, 1981. As a result, Mr. Heim was separated from the USAR in 1987 after twice being passed over for promotion to the rank of Major.

Prior to his separation from the USAR, Mr. Heim was transferred from his pay billet with the 3220th United States Army Garrison to a billet having non-pay status in the USAR Control Group. Mr. Heim later objected to his transfer. Specifically, Mr. Heim alleged his reassignment to a non-pay status was the involuntary result of coercion by his commanding officers. Accordingly, Mr. Heim applied to the Army Board for Correction of Military Records (Board) for relief in 1983. Mr. Heim argued his handwritten note on the Army 1AA Form 831 shows that he executed the transfer request form under duress, despite a portion of the form indicating his signature was voluntary in nature. The Board denied Mr. Heim’s request for relief on June 5, 1985, stating that no [923]*923record evidence demonstrated the transfer request was the product of duress, or that a material error or injustice had occurred when the Army effectuated his transfer.

Dissatisfied with the Board’s decision, Mr. Heim filed suit in the United States District Court for the Southern District of Florida on November 25, 1987. The district court transferred this case to the Court of Federal Claims on March 31, 1988. Mr. Heim then filed an amended complaint in the Court of Federal Claims seeking back pay for duties he would have performed had he not been transferred to non-pay status, correction of his military records, and reappointment to his former grade in the USAR. The complaint alleged jurisdiction under 37 U.S.C. § 206 (1988) (Reservists Pay Mandating Statute), and 28 U.S.C. § 1491 (Tucker Act). Heim v. United States, 22 Cl.Ct. 341, 342 (1991). The Court of Federal Claims determined that § 206 only provides for compensation to a reservist who “is ordered to perform and actually performs the work.” Heim, 22 Cl.Ct. at 344. Because Mr. Heim was in a non-pay billet at the time of his separation, and had not performed work for which compensation was due while in this billet, the Court of Federal Claims dismissed Mr. Heim’s complaint for failure to state a claim upon which relief can be granted. This court affirmed that decision. Heim v. United States, 949 F.2d 403 (Fed.Cir.1991).

Nearly thirteen years after this court’s 1991 decision in Heim, Mr. Heim petitioned to the Board for reconsideration of its original 1985 decision. The petition cited “newly discovered relevant evidence not previously considered by the Board in its original adjudication.” The new evidence was Mr. Heim’s recitation of a foreboding statement allegedly made to him by his commanding officer that illustrated his duress in executing Army 1AA Form 831. The Board considered Mr. Heim’s petition, but found his contentions did not constitute new evidence. Thereafter, Mr. Heim’s Congressional Representative inquired as to the basis for denying Mr. Heim’s application for reconsideration. The Military Personnel Subcommittee responded to this inquiry by explaining the Board’s findings.

On March 21, 2000, Mr. Heim filed a second complaint in the Court of Federal Claims, this time seeking back pay and benefits, correction of his military records and restoration of his pay-status billet pursuant to 37 U.S.C. § 204(a)(2) (1994) and 28 U.S.C. § 1491 (1994). The Court of Federal Claims dismissed this complaint, holding lack of subject matter jurisdiction because Mr. Heim’s complaint was barred by the six-year statute of limitations set forth in 28 U.S.C. § 2501 (1994). The court also found the complaint failed due to the applicability of the doctrine of res judicata. Moreover, the Court of Federal Claims held the requested relief could not be granted due to Mr. Heim’s reliance on a statute that does not entitle him to a back pay remedy.

Mr. Heim timely appealed to this court, which has jurisdiction pursuant to 28 U.S.C. § 1295(a)(3)(1994).

II.

A. Standard of Review

Whether the Court of Federal Claims properly dismissed Mr. Heim’s complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted are both questions of law that this court reviews de novo. Boyle v. United States, 200 F.3d 1369 (Fed.Cir.2000); Khan v. United States, 201 F.3d 1375, 1377 (Fed.Cir.2000). Dismissal for failure to state a claim upon which relief may be granted under Rule 12(b)(6) is [924]*924appropriate when the facts as asserted in the complaint do not entitle the plaintiff to a legal remedy. New York Life Ins. Co. v. United States, 190 F.3d 1372, 1377 (Fed.Cir.1999). This court reviews the dismissal by accepting all well-pleaded factual allegations as true, and drawing all reasonable inferences in favor of Mr. Heim. Perez v. United States, 156 F.3d 1366, 1370 (Fed.Cir.1998). However, if the plaintiff “can prove no set of facts in support of his claim that would entitle him to relief,” the case may be properly dismissed. Southfork Sys., Inc. v. United States, 141 F.3d 1124, 1131 (Fed.Cir.1998).

B. Res Judicata

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45 F. App'x 921, 45 Fed. Appx. 921, 2002 U.S. App. LEXIS 18765, 2002 WL 31007820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heim-v-united-states-cafc-2002.