Ellis v. Board for Correction of Naval Records

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ERNEST R. ELLIS,

Plaintiff,

Case No. 2:23-cv-3261

v. Judge Edmund A. Sargus, Jr.

Magistrate Judge Elizabeth P. Deavers

BOARD FOR CORRECTION OF

NAVAL RECORDS,

Defendant.

OPINION AND ORDER

This matter is before the Court on Defendant Board for Correction of Naval Records

(“BCNR”)’s Motion to Dismiss for Lack of Jurisdiction and for Failure to State a Claim. (ECF

No. 105.) Also pending before the Court are Plaintiff Ernest R. Ellis’ss Motion for Leave of the

Civil Claims Court pursuant to Ohio Civil Rule 27 (ECF No. 82), Motion for Discovery (ECF No.

94), and Second Motion for Discovery (ECF No. 95).

For the reasons stated in this Opinion and Order, the Court lacks subject matter jurisdiction

over this matter and TRANSFERS the case to the Court of Federal Claims. The Court DENIES

without prejudice to refiling BCNR’s Motion to Dismiss. (ECF No. 105.) Mr. Ellis’s Motion for

Leave of the Civil Claims Court is DENIED as moot (ECF No. 82), and his Motions for Discovery

are DENIED without prejudice (ECF Nos. 94, 95.)

BACKGROUND

Mr. Ellis, proceeding in this matter pro se, was discharged from the United States Navy in

August 1975 following his conviction by summary court-martial for two periods of unauthorized

absence from service earlier in 1975. (ECF No. 1, PageID 35.) He was discharged “with a general,

under honorable conditions (GEN), characterization of service by reason of unsuitability.” (Id.)

Since then, Mr. Ellis has repeatedly asked courts to review adjudications by BCNR denying his

requests to correct his naval records regarding the characterization of his discharge.

Relevant to this lawsuit, Mr. Ellis applied to BCNR in June 2018 for a correction of his

naval records, arguing he “should have been honorably medically discharged due to [his]

diagnosed neurosis and accompanying symptoms.” (Id., PageID 36.) Attached to his Complaint,

Plaintiff includes two letters from the United States Department of the Navy, BCNR. The first,

dated August 31, 2019, informs Plaintiff that his June 7, 2018 request for correction of his Naval

records has been disapproved (BCNR Docket # NR20180004911). (Id., PageID 35.) BCNR stated

that it considered Plaintiff’s application for correction “in light of the Secretary of Defense’s 3

September 2014 memorandum,” which provided policy guidance on Naval records corrections

requests made by veterans with Post-Traumatic Stress Disorder (PTSD). (See id., PageID 36.)

BCNR denied Mr. Ellis’s June 2018 request because, it found, his two periods of

unauthorized absence from the military in 1975 were unjustified and his discharge designation

already accounted for a determination that he was suffering from early stages of a psychotic

disorder at the time. (Id., PageID 36–37.) BCNR thus determined that a designation of “medical

discharge was not warranted.” (Id., PageID 37.)

In BCNR’s second letter to Plaintiff, dated February 22, 2023, the Board informed Plaintiff

that it would not consider his February 21, 2022 application for correction of records because he

was previously denied relief. (Id., PageID 30.) It informed Plaintiff that he may submit a new DD

Form 149 (“Application for Correction of Military Record”), along with new evidence, to initiate

BCNR’s reconsideration of its August 31, 2019 decision. (Id.) BCNR also stated “[i]n the absence

of sufficient new and material evidence for reconsideration, the decision of the Board is final, and

your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate

jurisdiction.” (Id.)

Mr. Ellis filed a Complaint in this Court on October 4, 2023, which the Court construes as

seeking review and reversal of the BCNR’s August 2019 denial of Mr. Ellis’s June 2018

application for correction of his Naval records. (ECF No. 1.) Liberally construing the Complaint,

which is difficult to read and understand, Mr. Ellis requests a change in his discharge status to

“Honorable Medical Discharge at the rate of 100% disability.” (Id., PageID 7.) He also asks the

Court to “expunge the [unauthorized absence] time” for his two periods of absence between March

and July 1975. (Id., PageID 35.)

BCNR moved to dismiss, arguing this Court lacks jurisdiction over Mr. Ellis’s claims, and

even if it did have jurisdiction, Mr. Ellis’s Complaint fails to state a claim for relief. (ECF No.

105.) Mr. Ellis responded in opposition. (ECF No. 109.) BCNR replied. (ECF No. 115.)

Since Mr. Ellis filed the Complaint, over one hundred ECF entries have been docketed,

including at least sixty filings by Mr. Ellis. The Court ordered Mr. Ellis to stop filing documents

in this case pending resolution of BCNR’s Motion to Dismiss. (ECF No. 122.)

LEGAL STANDARD

I. Lack of Subject Matter Jurisdiction

“Federal courts are courts of limited jurisdiction” that “possess only that power authorized

by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

“It is to be presumed that a cause lies outside this limited jurisdiction, . . . and the burden of

establishing the contrary rests upon the party asserting jurisdiction.” Id. (internal citations omitted).

Federal subject matter jurisdiction “can never be waived or forfeited.” Gonzalez v. Thaler, 565

U.S. 134, 141 (2012).

A court may dismiss an action under Rule 12(b)(1) when the court lacks subject matter

jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion to dismiss for a lack of subject matter jurisdiction

falls into two general categories: facial attacks and factual attacks. United States v. Ritchie, 15 F.3d

592, 598 (6th Cir. 1994). BCNR raises both a facial challenge and a factual challenge to this

Court’s jurisdiction, but only BCNR’s facial attack is relevant to this Opinion and Order. (ECF

No. 105, PageID 1321.)

A facial attack challenges the sufficiency of the pleading itself, and the district court

accepts the allegations of the complaint as true. Ritchie, 15 F.3d at 598. To survive a facial attack,

the complaint must contain a “short and plain statement of the grounds” for jurisdiction. Dehen v.

Ohio State Univ., No. 2:23-cv-517, 2023 WL 4842706, at *2 (S.D. Ohio June 5, 2023) (Watson,

J.) (citing Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016)).

II. Pro Se Litigants

Courts liberally construe pleadings by pro se litigants, and such pleadings are subject to

“‘less stringent standards than formal pleadings drafted by lawyers’ and can only be dismissed for

failure to state a claim if it appears ‘beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.’” Estelle v. Gamble, 429 U.S. 97, 106 (1976)

(quoting Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (cleaned up)). The Court must “construe

the complaint in the light most favorable to the plaintiff [and] accept all well-pleaded factual

allegations as true.” Trzebuckowski v. City of Cleveland, 319 F.3d 853, 855 (6th Cir. 2003).

ANALYSIS

After briefly discussing the status of Mr. Ellis’s claims, the Court considers whether there

is subject matter jurisdiction over the Complaint.

I. Interpretation and Status of Mr. Ellis’s Claim

As previously noted by the Court, on September 3, 2014, then-U.S. Secretary of Defense

Chuck Hagel issued a memorandum, titled “Supplemental Guidance to Military Boards for

Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans

Claiming Post Traumatic Stress Disorder.” (ECF No. 74, PageID 939, n.1); United States Secretary

of Defense, Supplemental Guidance to Military Boards for Correction of Military/Naval Records

(Sept. 3, 2014), https://www.secnav.navy.mil/mra/bcnr/Documents/HagelMemo.pdf (“Hagel

Memorandum”). The Hagel Memorandum included policy guidance “intended to ease the

application process for veterans who are seeking redress and assist the Boards [for Correction] in

reaching fair and consistent results in” cases where veterans request discharge upgrades “based on

previously unrecognized [PTSD].” Id. The Court takes judicial notice of the Hagel Memorandum

as a public government record. See Total Benefits Plan. Agency Inc. v. Anthem Blue Cross & Blue

Shield, 630 F. Supp. 2d 842, 849 (S.D. Ohio 2007) (Barrett, J.) (holding the Court may take judicial

notice of “public records and government documents available from reliable sources on the

Internet”).

Mr. Ellis asks this Court to review the August 2019 adjudication by BCNR denying his

July 2018 application for correction of military records. This is the latest in a long line of federal

cases Mr. Ellis has filed since at least 1983 regarding the categorization of his 1975 discharge from

the U.S. Navy. (See ECF No. 105, PageID 1332–33 (collecting cases)). As BCNR observes, this

Court has previously placed filing restrictions on Mr. Ellis and has sanctioned him due to his failure

to comply with those restrictions. (See id., PageID 1333–35.) The Court acknowledges that Mr.

Ellis has not complied with those filing restrictions in this case, including requirements to list every

prior case he has filed and for an attorney to certify that his claims are warranted. But to this

Court’s knowledge, this is the only case Mr. Ellis has filed in this Court challenging BCNR’s

rejection of his July 2018 application for correction of his Naval records, following the Hagel

Memorandum. Given Mr. Ellis’s pro se status, the Court considers its jurisdiction over the case

based on BCNR’s jurisdictional arguments in its Motion to Dismiss.

This Court generously construes Mr. Ellis’s complaint as raising claims under the

Administrative Procedure Act (“APA”) and has afforded him extraordinary time and guidance to

properly effectuate service. (See ECF No. 74 (construing Mr. Ellis’s Complaint and providing

resources regarding proper service)). The docket reflects that service has been completed on the

U.S. Navy, the U.S. Attorney General, and the U.S. Attorney’s Office. (ECF Nos. 113, 117, 120.)

II. Lack of Subject Matter Jurisdiction

BCNR argues the Court lacks subject matter jurisdiction because Mr. Ellis’s “requested

relief of an 100% military disability rating and restoring of his lost unauthorized access time entail

the payment of monetary damages in excess of $10,000, falling under the exclusive jurisdiction of

the Court of Federal Claims.” (ECF No. 105, PageID 1323.) The Court agrees.

BCNR was created “for the purpose of determining the existence of error or injustice in

the naval records of current and former members of the Navy and Marine Corps, to make

recommendations to the Secretary or to take corrective action on the Secretary’s behalf when

authorized.” 32 C.F.R. § 723.2(b). “Federal courts have the authority to review the decision of a

military board of correction under the Administrative Procedure Act (APA).” Bolton v. Dep’t of

the Navy Bd. for Corr. of Naval Recs., 914 F.3d 401, 406 (6th Cir. 2019) (citing 5 U.S.C. § 701 et

seq.; Piersall v. Winter, 435 F.3d 319, 323–25 (D.C. Cir. 2006)). “Decisions of the BCNR are

‘subject to judicial review and can be set aside if they are arbitrary, capricious or not based on

substantial evidence.’” Id. (quoting Chappell v. Wallace, 462 U.S. 296, 303 (1983)); see also 10

U.S.C. § 1558(f)(3)(A) (authorizing a court to set aside an action of the Secretary of any military

department “only if the court finds that the recommendation or action was—(A) arbitrary or

capricious; (B) not based on substantial evidence; (C) a result of material error of fact or material

administrative error; or (D) otherwise contrary to law”).

Congress’s waiver of the United States’s sovereign immunity under the APA extends only

to claims in U.S. District Courts “seeking relief other than money damages,” 5 U.S.C. § 702, and

claims seeking review of “final agency action for which there is no other adequate remedy in a

court,” id. § 704. The proper forum for damages claims against the United States depends, in part,

on the amount sought. Under the Tucker Act, “[f]ederal district courts do not have subject matter

jurisdiction to consider just-compensation claims for money damages in excess of $10,000 against

the United States. Rather the Tucker Act vests jurisdiction over such claims in the Court of Federal

Claims.” Brott v. United States, 858 F.3d 425, 428 (6th Cir. 2017).

Mr. Ellis’s request for “Honorable Medical Discharge at the rate of 100% disability”

equates to a request for full receipt of disability retirement pay since 1975. (See ECF No. 1, PageID

7.) As calculated by BCNR and unrefuted by Mr. Ellis, Mr. Ellis’s requested discharge status

change would result in him being owed approximately $93,000 in backpay. (See ECF No. 105,

PageID 1326.) His request to expunge his unauthorized absence designations could also result in

backpay damages that would add to this total. (See id., PageID 1327.)

Although on the surface Mr. Ellis requests injunctive relief, “a party cannot circumvent the

[Tucker Act]’s jurisdiction by suing solely for declaratory or injunctive relief in a case where such

relief is tantamount to a judgment for money damages.” Veda, Inc. v. U.S. Dep’t of the Air Force,

111 F.3d 37, 39 (6th Cir. 1997) (citing A.E. Finley & Assoc., Inc. v. United States, 898 F.2d 1165,

1167 (6th Cir. 1990)). Where the “prime objective of the complaining party is simply to obtain

money from the federal government, the case belongs in the Court of Federal Claims.” Sosa v.

Sec’y, Dep’t of Def., 47 F. App’x 350, 351 (6th Cir. 2002); see also Amoco Prod. Co. v. Hodel,

815 F.2d 352, 361 (5th Cir. 1987) (“Where the real effort of the complaining party is to obtain

money from the federal government, the exclusive jurisdiction of the [Claims Court] . . . cannot

be evaded or avoided by framing a district court complaint to appear to seek only injunctive,

mandatory or declaratory relief against government officials or the government itself.” (citation

omitted)).

Furthermore, in a filing titled “Motion for Leave of the Civil Claims Court pursuant to

Ohio Civil Rule 27,” it appears Mr. Ellis seeks relief from the Court of Federal Claims. (ECF No.

82, PageID 1022.) Accordingly, Mr. Ellis might concede that the Court of Federal Claims is the

proper forum for his claims.

Because Mr. Ellis ultimately seeks damages exceeding $10,000, this Court lacks subject

matter jurisdiction, and transfer to the Court of Federal Claims is warranted. See Sosa, 47 F. App’x

at 352 (“Pursuant to 28 U.S.C. § 1631, a district court, when it lacks subject matter jurisdiction

over a case seeking review of an administrative action, shall transfer the civil action to the

appropriate court for such review, if it is in the interests of justice.”). This disposition is in line

with decisions by other federal courts under similar circumstances. See, e.g., id. at 352 (holding

that the district court did not have subject matter jurisdiction over plaintiff’s claim seeking

correction of military records and 100% disability retirement pay and remanding for the district

court to transfer the case to the Court of Federal Claims); Bublitz v. Brownlee, 309 F. Supp. 2d 1,

9 (D.D.C. 2004) (transferring case to Court of Federal Claims in similar circumstances).

BCNR’s arguments that Mr. Ellis’s claims are barred by applicable statutes of limitation

should be resolved in the Court of Federal Claims. See Sosa, 47 F. App’x at 352. Accordingly, the

Court DENIES without prejudice to refiling BCNR’s Motion to Dismiss. (ECF No. 105.)

Last, given the early stage of this case, the statute of limitation issues raised, and the

transfer to the Court of Federal Claims, the Court finds Mr. Ellis’s Motions for Discovery are

premature. Additionally, the Court has not yet issued a Preliminary Pretrial Order permitting

discovery. Mr. Ellis’s Motions for Discovery are DENIED without prejudice. (ECF Nos. 94, 95.)

CONCLUSION

The Court lacks subject matter jurisdiction over Mr. Ellis’s claims, which should be raised

in the Court of Federal Claims. Accordingly, the Court DENIES without prejudice to refiling

Defendant Board for Correction of Naval Records’s Motion to Dismiss. (ECF No. 105). Plaintiff

Ernest R. Ellis’s Motion for Leave of the Civil Claims Court pursuant to Ohio Civil Rule 27 is

DENIED as moot. (ECF No. 82.) Mr. Ellis’s Motion for Discovery (ECF No. 94) and Second

Motion for Discovery (ECF No. 95) are DENIED without prejudice.

The Clerk is DIRECTED to TRANSFER this case to the Court of Federal Claims and to

close this case on this Court’s docket.

IT IS SO ORDERED.

8/28/2025 s/Edmund A. Sargus, Jr.

DATE EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE