Harris v. United States

In the United States Court of Federal Claims

MORRIS M. HARRIS

Plaintiff,

v. No. 24-cv-327

(Filed: Nov. 20, 2024)

THE UNITED STATES,

Defendant.

Sean Timmons, Tully Rinckey, PLLC, Sugarland, TX for Plaintiff.

Sean K. Griffin, Commercial Litigation Branch, Civil Division, United States Department of

Justice, Washington, D.C., for Defendant. With him on the briefs was Major Nicole A.

Oberjuerge, Litigation Attorney, U.S. Army Legal Services Agency.

OPINION AND ORDER

Meriweather, Judge.

Plaintiff, Morris M. Harris (“Mr. Harris”), a former serviceman in the United States

Army Reserves (“USAR”) Active Guard Reserve (“AGR”) program, brings this action

challenging his discharge from the Army and decisions by the Army Board for Correction of

Military Records (“ABCMR”). Mr. Harris contends that the Army erroneously failed to refer

him to a Medical Evaluation Board (“MEB”) to assess whether he was eligible for separation by

reason of medical disability, and that the ABCMR failed to correct the Army’s errors or to

adequately consider Mr. Harris’s claims that he faced unjust reprisal. The United States filed a

Motion to Dismiss, ECF No. 6, for lack of subject matter jurisdiction and for failure to state a

claim upon which relief can be granted. Having reviewed the parties’ briefs1 and the relevant

law, and for the reasons explained below, the Court GRANTS the United States’ Motion to

Dismiss for lack of subject matter jurisdiction.2

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This opinion is based on the following filings: Compl., ECF No.1; Def. Mot.

to Dismiss, ECF No. 6 (“Mot.”); Pl.’s Opp. to Mot. to Dismiss, ECF No. 11 (“Opp.”); Exs. to

Pl.’s Opp., ECF Nos. 11-1–11-3; Def.’s Reply in Opp. to Mot. to Dismiss, ECF No. 8 (“Reply”).

Throughout, page citations to documents in the record refer to the document’s original

pagination, unless the page is designated with an asterisk (e.g., *1), in which case the reference is

to the pagination assigned by PACER/ECF.

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The United States alternatively argues that Mr. Harris fails to state a viable claim for

BACKGROUND

Mr. Harris enlisted in the USAR in April 1998 and served in the Army Reserve, the

Army, and then the AGR until he was formally discharged on May 6, 2011. See Compl. ¶¶ 15–

26, 54. In May 2010, Mr. Harris admitted himself for inpatient mental health care and upon

release scheduled several mandatory treatment appointments. Id. ¶ 28. Mr. Harris alleges that

command then prohibited him from attending his appointments and denied him leave for further

treatment. Id. ¶¶ 27, 29. Mr. Harris filed a “congressional” complaint, after which “multiple

allegations of misconduct [were] lodged against him.” Id. ¶ 31.

In June 2010, Mr. Harris’s commander referred him for a mental health evaluation,

during which the evaluating psychologist recommended ongoing counseling. Id. ¶¶ 33–34, 37.

In August 2010, Mr. Harris received “a permanent physical profile for asthma and depression

with anxiety” that allegedly mandated “a non-duty related [P]hysical [E]valuation [B]oard

[(“PEB”)]” review. Id. ¶¶ 42–43. Mr. Harris alleges that the examining physician “neglected to

assess Mr. Harris’[s] ability to meet retention standards . . . or to determine Mr. Harris’[s] need

for further evaluation by a[] MEB and PEB,” which he alleges was necessary at the time. Id. ¶¶

44–46. On September 27, 2010, Mr. Harris was “notified of an initiation of separation.” Id. ¶

49. Mr. Harris alleges that an Administrative Separation Board then convened and

recommended discharging him with an “Under Honorable Conditions (General) discharge,

finding him unqualified for further military service based on his command’s allegations of

unsatisfactory performance.” Id. ¶¶ 51–52. The Separation Authority approved the discharge,

and Mr. Harris was discharged May 6, 2011. Id. ¶¶ 53–54.

In 2016, Mr. Harris came before this Court pro se to challenge his discharge, and the

Court entered judgment in favor of the United States based on the administrative record. Harris

v. United States, 135 Fed. Cl. 10 (2017) (Harris I). In Harris I, this Court considered three of

Mr. Harris’s applications to the ABCMR. Mr. Harris’s first application challenged his discharge,

and on July 11, 2013, the ABCMR concluded that the discharge was proper. Id. at 13. In his

second and third applications, Mr. Harris asked the ABCMR to process his record through the

Physical Disability Evaluation System (“PDES”) and correct his record to reflect separation due

to medical disability. Id. The ABCMR denied Mr. Harris’s second application based on “the

fact that Mr. Harris was medically cleared to return to duty, without limitation, despite prior

medical issues.” Id. On November 15, 2016, the ABCMR denied Mr. Harris’s third and then-

final application, explaining “that the reasons for separation were all based on behavior, and

there was no evidence suggesting that a medical issue contributed to Mr. Harris’s conduct at the

time of separation.” Id. at 14.

In the current suit, Mr. Harris seeks: (1) upgrading of his discharge, (2) voiding of his

discharge and reinstatement, (3) back pay and allowances from May 6, 2011, (4) promotion to

the rank of Sergeant First Class effective March 24, 2011, (5) processing through the Army

relief because his suit is claim- and issue-precluded by the Court’s earlier decision upholding Mr.

Harris’s discharge and denying his claim for disability retirement in Harris v. United States, 135

Fed. Cl. 10 (2017). The Court declines to consider this alternative ground for dismissal because

it lacks subject matter jurisdiction.

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PDES, and (6) correction of his Certificate of Release or Discharge to show he was separated by

reason of medical disability versus a pattern of misconduct. Compl. ¶ 81(a). Mr. Harris alleges

that the ABCMR failed to properly address these issues when he filed two new applications with

the ABCMR with new evidence after the conclusion of Harris I. See Opp. at 1. Mr. Harris

claims the ABCMR denied his first application after considering the new evidence. Id.; see Ex.

1 to Opp., ECF No. 11-1. Then, the ABCMR allegedly “refused to reconsider [his second

application] based on [his] new evidence” because he had exhausted his appeal options with the

Board and the ABCMR suggested that he “seek relief in a court of appropriate jurisdiction.” Id.

(quoting Ex. 2 to Opp., ECF No. 11-2). Mr. Harris contends that the “‘new’ issue that was not

raised in [his] prior petitions [is] that his medical issues should be reviewed by the Army

Physical Disability Review Board.” Id. at 2.

LEGAL STANDARD

When jurisdiction is challenged under Rule 12(b)(1), the “[p]laintiff bears the burden of

establishing jurisdiction by a preponderance of the evidence.” Park Prop. Assocs., L.P. v. United

States, 916 F.3d 998, 1002 (Fed. Cir. 2019). The “court must accept as true all undisputed facts

asserted in the plaintiff’s complaint and draw all reasonable inferences in favor of the plaintiff.”

Acevedo v. United States, 824 F.3d 1365, 1368 (Fed. Cir. 2016) (quoting Trusted Integration,

Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011)). “If the court has doubts regarding

jurisdiction, it may look at all the evidence presented to satisfy itself regarding the jurisdictional

facts. Indeed, the court may, and often must, find facts on its own.” Martinez v. United States,

48 Fed. Cl. 851, 857 (2001), aff’d in part, 281 F.3d 1376 (Fed. Cir. 2002) (citing RHI Holdings,

Inc. v. United States, 142 F.3d 1459, 1461–62 (Fed. Cir. 1998)). The Court may consider public

records including “cases of public record in which [plaintiff] was a litigant.” Jarvis v. United

States, No. 2022-1006, 2022 WL 1009728 at *3 (Fed. Cir. Apr. 5, 2022).

DISCUSSION

I. The Court Lacks Subject Matter Jurisdiction.

For the Court to have jurisdiction, a claim against the United States must be “filed within

six years after such claim first accrues.” 28 U.S.C. § 2501. “In a military discharge case, . . . the

plaintiff’s cause of action for back pay accrues at the time of the plaintiff’s discharge.” Martinez v.

United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003). Claims for disability retirement pay, however,

accrue upon issuance of “[t]he decision by the first statutorily authorized board that hears or refuses

to hear the claim.” Chambers v. United States, 417 F.3d 1218, 1224 (Fed. Cir. 2005).

The United States contends that Mr. Harris’s claims regarding his discharge are time-

barred and should therefore be dismissed for lack of subject matter jurisdiction. The United

States argues that because Mr. Harris was discharged in May 2011 and the ABCMR took final action

on his first disability retirement claim in 2014, the six-year statute of limitations has lapsed. Mr.

Harris counters that neither claim accrued until the ABCMR took final action on his most recent

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application in 2022, and alternatively asserts that the Court should equitably toll the statute of

limitations until that date. See Opp. at 5.

Mr. Harris’s recent applications to the ABCMR have no bearing on the accrual of either

claim. The Federal Circuit and this Court “have frequently addressed and rejected the argument

that the cause of action for unlawful discharge does not accrue until the service member seeks

relief from a correction board and the correction board enters a final decision denying relief.”

Martinez, 333 F.3d at 1304. Accordingly, Mr. Harris’s discharge claim accrued on his date of

discharge. See id; Chambers, 417 F.3d at 1224. The ABCMR’s adjudication of a disability

retirement claim is relevant to the accrual of that specific claim; but that clock started when the

ABCMR denied Mr. Harris’s first application seeking discharge due to medical disability in June

2014. Harris I, 135 Fed. Cl. at 13; see Chambers, 417 F.3d at 1218, 1224–1227.

Given the dates of accrual, Mr. Harris’s claims are both plainly barred by the Court’s

statute of limitations. His discharge claim accrued at the time of his discharge in 2011, and his

disability retirement claim accrued when the ABCMR first denied that claim in 2014. Harris I,

135 Fed. Cl. at 13. He filed this action on March 1, 2024, several years after the six-year

limitations period expired. See Compl.

Mr. Harris asks the Court to excuse the untimeliness of his claims and equitably toll the

limitations period. That argument fails because “[t]he statute of limitations applicable to Tucker Act

claims, 28 U.S.C. § 2501, is jurisdictional and not susceptible to equitable tolling.” Young v. United

States, 529 F.3d 1380, 1384 (Fed. Cir. 2008); see also John R. Sand & Gravel Co. v. United States,

552 U.S. 130, 134 (2008) (noting that the Supreme Court “has long interpreted the court of claims

limitations statute” as jurisdictional, setting forth a “more absolute, kind of limitations period”).

Mr. Harris urges the Court to re-examine the jurisdictional nature of the statute of

limitations following the Supreme Court’s decisions in Boechler v. Commissioner of Internal

Revenue, 596 U.S. 199 (2022) and United States v. Kwai Fun Wong, 575 U.S. 402 (2015). In

Boechler and Kwai Fun Wong, the Supreme Court ruled that the statutes of limitations for

appeals to the Tax Court and claims under the Federal Tort Claims Act are not jurisdictional

because the relevant statutes did not “plainly show that Congress imbued a procedural bar with

jurisdictional consequences.” Boechler, 596 U.S. at 203 (quoting Kwai Fun Wong, 575 at 410

(2015)). Mr. Harris argues that the limitations period governing Tucker Act claims in this Court

should not be deemed jurisdictional because the statutory language “mandates a non-

jurisdictional reading: the court must first have jurisdiction over a claim before it can be time

barred by the statute.” Opp. at 4. Mr. Harris’s argument is contrary to decades of controlling

precedent treating the Tucker Act’s statute of limitations as jurisdictional. Indeed, in Kwai Fun

Wong itself, the Supreme Court specifically distinguished the Tucker Act from other statutes,

stating “twice we made clear that the jurisdictional status of the Tucker Act’s time bar has

precious little to do with its phrasing,” rather, it is a matter of stare decisis based on “a definitive

earlier interpretation.” 575 U.S. at 415–16 (quoting John R. Sand & Gravel Co. v. United States,

552 U.S. 130, 138 (2008)). This Court lacks the authority to disregard that binding precedent

and therefore cannot equitably toll the limitations period applicable to Mr. Harris’s claims.

Accordingly, his complaint must be dismissed for lack of subject matter jurisdiction. See RCFC

12(h).

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II. Neither Transfer nor Remand Is Appropriate.

Mr. Harris argues that if the Court lacks jurisdiction, it is appropriate to transfer this case

to a U.S. District Court “for amendment and litigation under the Administrative Procedure Act”

(“APA”) or remand this case to the ABCMR. Opp. at 6–8. The United States disagrees, arguing

that Mr. Harris does not plead an APA claim, a district court would lack jurisdiction over an

APA claim, and the Court cannot remand the case because it is not within the Court’s subject

matter jurisdiction. See Reply at 8–11.

Mr. Harris asserts in his Reply that a district court has the power to grant him relief under

the APA because the ABCMR’s 2022 decision constitutes a “final agency action.” Opp. at 6.

Plaintiffs may challenge civilian review board’s administrative decisions in federal district courts

pursuant to the Administrative Procedure Act. See Schmidt v. United States, 89 Fed. Cl. 111,

125 (2009). But unlike the plaintiff in Schmidt, Mr. Harris did not state an APA claim in his

complaint. See Compl. ¶ 11 (citing 37 U.S.C. § 204(a) (Military Pay Act); 10 U.S.C. § 6333

(retired pay schedule); 10 U.S.C. § 1463 (retired pay fund); 10 U.S.C. § 1201 (Medical

Disability Retirement); and 10 U.S.C. § 1074 (medical and dental expenses)); compare Schmidt,

89 Fed. Cl. at 124 (noting that “plaintiff claims that defendant violated the Administrative

Procedure Act” and challenged validity of an agency regulation). He seeks only monetary relief,

namely “military pay and allowances in excess of $1,000,000.00.” Compl. ¶ 12. That is not the

type of equitable relief that falls within the scope of APA jurisdiction. See 5 U.S.C. § 702

(granting jurisdiction if a person “seek[s] relief other than money damages”). Accordingly, there

is no APA claim that the Court could transfer to a district court.

Mr. Harris also asks the Court to stay proceedings and remand this matter to the ABCMR

to reconsider Mr. Harris’s most recent application. Opp. at 8. The Court may “remand

appropriate matters to any administrative or executive body or official,” but that power is limited

to “any case within its jurisdiction.” 28 U.S.C. § 1491(a)(2); RCFC 52.2(a)(1). Because the

Court lacks subject matter jurisdiction over Mr. Harris’s untimely claim, it cannot remand this

matter to the ABCMR.

CONCLUSION

For the foregoing reasons, the Court finds that it lacks subject matter jurisdiction because

Mr. Harris’s claims are time-barred. The Court hereby GRANTS the United States’ Motion to

Dismiss, ECF No. 6, pursuant to RCFC 12(b)(1). The Clerk shall enter JUDGMENT

accordingly.

IT IS SO ORDERED.

/s/Robin M. Meriweather

ROBIN M. MERIWEATHER

Judge

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