Diaz v. United States

In the United States Court of Federal Claims

No. 25-1129C

Filed: March 10, 2026

NOT FOR PUBLICATION

SALVADOR DIAZ,

Plaintiff,

v.

UNITED STATES,

Defendant.

Wojciech Z. Kornacki, Pentagon Law Office, Washington, DC, for the plaintiff.

Nathanael Brown Yale, Commercial Litigation Branch, U.S. Department of Justice, Washington,

DC, for the defendant.

MEMORANDUM OPINION AND ORDER

HERTLING, Judge

In this military-pay case, the plaintiff, Salvador Diaz, served in the United States Navy

(“the Navy”) for more than 20 years. In December 2000, the plaintiff was court martialed and

convicted of rape and indecent acts. He was sentenced to nine years in prison, a reduction in

rank, and a dishonorable discharge.

On July 2, 2025, the plaintiff sued the United States, acting through the Navy,

challenging his dishonorable discharge and seeking reinstatement and recovery of back pay from

the date of his conviction. The plaintiff alleges that the Navy acted in a manner that was

arbitrary, capricious and contrary to law and that reviews of his trial and conviction were plagued

by due process violations, fraud, delay, and bias against him.

On January 13, 2026, the defendant moved to dismiss the complaint under Rules 12(b)(1)

and 12(b)(6) of the Rules of the United States Court of Federal Claims (“RCFC”) as untimely.

The defendant argues that the plaintiff brought his claim more than 18 years after his discharge,

and the applicable statute of limitations deprives the court of jurisdiction to consider the

plaintiff’s claims. The defendant also argues that the plaintiff’s complaint should be dismissed

for failure to state a claim because it is barred by both res judicata and collateral estoppel.

The plaintiff’s claim for back pay accrued, at the latest, on April 16, 2007, when the

Supreme Court denied his petition for a writ of certiorari. His subsequent appeals before the

Navy-Marine Corps Court of Criminal Appeals (“NMCCA”), the Board for Correction of Naval

Records (“BCNR”), and various federal courts do not toll or restart the applicable six-year

statute of limitations set forth in 28 U.S.C. § 2501. As a result, the motion to dismiss is granted,

because the plaintiff’s claim for wrongful discharge is untimely and must be dismissed for lack

of jurisdiction.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The plaintiff enlisted in the Navy in August 1980 and entered active duty in October of

that same year. On December 1, 2000, after 20 years of service, the plaintiff was court martialed

and convicted of three specifications of rape and two specifications of indecent acts, in violation

of Articles 120 and 134 of the Uniform Code of Military Justice (“UCMJ”). See United States v.

Diaz, 61 M.J. 594, 596, 598-99 (NMCCA 2005).

As a result of his conviction, the plaintiff forfeited all pay and allowances, received a

reduction in rank from Chief Petty Officer (pay grade E-7) to Seaman Recruit (pay grade E-1),

was sentenced to nine years in prison, and was dishonorably discharged upon release from

prison. Id. The plaintiff completed his prison sentence and was discharged on March 13, 2007.

Prior to his discharge, the plaintiff appealed his conviction to the NMCCA, which denied

him relief on March 23, 2005. Id. The plaintiff then appealed to the Court of Appeals for the

Armed Forces, which also affirmed his conviction. See United States v. Diaz, 64 M.J. 176

(CAAF 2006). During his confinement and since his release, the plaintiff continued to seek

review of his conviction, filing petitions for certiorari and habeas corpus and challenging his

court-martial conviction or conditions of confinement in two federal district courts, along with

related appeals. 1

1

See Diaz v. McGuire, No. 02-3271 (D. Kan. Nov. 1, 2004); Diaz v. Harrison, No. 04-3401

(D. Kan. Sept. 18, 2006); Diaz v. Inch, No. 06-3306 (D. Kan. Sept. 28, 2007). All three petitions

were denied, and the plaintiff appealed two of the denials. The Tenth Circuit affirmed both.

Diaz v. Inch, 268 F. App’x 802, 803 (10th Cir. 2008); see also Diaz v. McGuire, 154 F. App’x 81

(10th Cir. 2005). In 2007, the plaintiff sought certiorari, which was denied. See Diaz v. United

States, 549 U.S. 1356 (2007).

The plaintiff also attempted to challenge his conviction through two civil actions in the U.S.

District Court of the Southern District of New York. See Compl., Diaz v. Dep’t of Def., No. 08-

CV-370 (S.D.N.Y. Jan. 15, 2008); See Compl., Diaz v. Judge Advocate Gen. of the Navy, No.

10-CV-1316 (S.D.N.Y. Feb. 18, 2010). His complaints were dismissed. See Mem. Dec., Diaz v.

Dep’t of Def., No. 08-CV-370 (S.D.N.Y. October 23, 2008); Order, Diaz v. Judge Advocate Gen.

of the Navy, No. 10-CV-1316 (S.D.N.Y. May 5, 2010). He appealed the dismissal of his

complaint against the Navy Judge Advocate General and the Second Circuit affirmed.

See Diaz v. Judge Advocate Gen. of the Navy, 413 F. App’x 342 (2d Cir. 2011).

2

In February 2025, the plaintiff petitioned the BCNR, alleging that he had been denied due

process in his court-martial proceedings and seeking reinstatement. The plaintiff argued that the

Navy had unlawfully and arbitrarily discharged him on March 13, 2007, by releasing him

without a required separation physical examination. On March 10, 2025, the BCNR denied the

plaintiff’s application for relief. On April 2, 2025, the plaintiff filed a request with the BCNR for

reconsideration, which was denied on April 4, 2025.

On July 2, 2025, 18 years after his discharge from the Navy, the plaintiff, acting pro se,

filed a complaint in this court challenging his 2007 discharge and seeking back pay from his time

of conviction. The plaintiff asserts that his court-martial was “fundamentally unfair,” and that he

was denied due process. He alleges that the charges against him were improperly re-referred to a

general court martial without explanation, his defense counsel had an unmitigable conflict of

interest, and his defense counsel provided him with ineffective assistance. (ECF 1 at 3.)

The plaintiff also alleges that reviews of his court martial trial and subsequent conviction

have been plagued by due process violations, fraud, delay, and bias against him. According to

the plaintiff, the NMCCA erred in its resolution of his conflict-of-interest claim against his prior

defense counsel. (ECF 18 at 13.) The plaintiff also alleges that the BCNR’s conclusions

denying his application for relief were arbitrary and unsupported by both the evidence and the

law. The plaintiff claims that the BCNR violated 10 U.S.C. § 1552(a)(3)(B) when it concluded

that the plaintiff had failed to provide evidence to substantiate due process violations. (ECF 1 at

7.) 2

On January 13, 2026, the defendant moved to dismiss the complaint under RCFC

12(b)(1) and 12(b)(6). The plaintiff responded on February 8, 2026, and the defendant replied on

February 24, 2026. Oral argument was held on March 10, 2026.

II. STANDARDS OF REVIEW

The plaintiff has the burden of establishing jurisdiction by a preponderance of the

evidence. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). If a

The plaintiff has also collaterally attacked his military conviction during related criminal

proceedings in the Southern District of New York. See United States v. Diaz, 2018 WL 5282882

(S.D.N.Y., Oct. 24, 2018) (convicting the plaintiff of failing to register as a sex offender under

the Sex Offender Registration and Notification Act), aff’d, 967 F.3d 107 (2d Cir. 2020), cert.

denied, 141 S. Ct. 1424 (2021).

2

After he filed the complaint, the plaintiff was referred to the court’s pro bono program and

obtained volunteer legal assistance. The Court expresses its gratitude to the plaintiff’s pro bono

attorney, whose representation reflects the finest traditions of the Bar.

3

court finds that it lacks subject-matter jurisdiction over a plaintiff’s claim, RCFC 12(h)(3)

requires dismissal of the claim.

To determine the existence of jurisdiction, a “court must accept as true all undisputed

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

plaintiff.” Id. When a plaintiff’s jurisdictional facts are challenged, only those factual

allegations that the government does not controvert are accepted as true. Shoshone Indian Tribe

of Wind River Rsrv. v. United States, 672 F.3d 1021, 1030 (Fed. Cir. 2012). In resolving a

disputed predicate facts in a challenge to jurisdiction under RCFC 12(b)(1), “’[the] court is not

restricted to the face of the pleadings but may review evidence extrinsic to the pleadings.’” Id.

(cleaned up) (quoting Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1584 (Fed. Cir. 1993),

cert. denied, 512 U.S. 1235 (1994)).

Dismissal for failure to state a claim upon which relief can be granted “is appropriate

when the facts asserted by the claimant do not entitle [the claimant] to a legal remedy.” Lindsay

v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). A court must both accept as true a

complaint’s well-pleaded factual allegations, Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), and

draw all reasonable inferences in favor of the non-moving party. Sommers Oil Co. v. United

States, 241 F.3d 1375, 1378 (Fed. Cir. 2001). To avoid dismissal, a complaint must allege facts

“plausibly suggesting (not merely consistent with)” a showing that the plaintiff is entitled to the

relief sought. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).

III. DISCUSSION

In its motion to dismiss the defendant argues that the statute of limitations deprives the

court of jurisdiction to consider the plaintiff’s claims. If the court finds it has jurisdiction,

however, the defendant argues that the plaintiff has failed to state a claim because his claims are

barred by res judicata and collateral estoppel. The defendant contends that the plaintiff has

unsuccessfully litigated an identical challenge and raised the same issues of lawfulness and

constitutionality of his court-martial in district court.

The plaintiff responds that his wrongful discharge claim is not time-barred because “the

Constitutional violations have not been resolved through the military justice system and he did

not have a fair chance to litigate” these violations. (ECF 18 at 7.) He claims that his prior

administrative and appellate reviews resulted in additional constitutional and procedural

violations. The plaintiff argues that his claims accrued not at the time of his discharge but on the

date of these additional violations or at the conclusion of the administrative and appellate

reviews. (Id.) He maintains that his dishonorable discharge from the Navy was improper

because the Supreme Court had yet to deny his petition for certiorari and thus his court-martial

conviction was not final. (ECF 1 at 1-2.)

In response to the government’s failure to state a claim argument, the plaintiff contends

his claims are not barred by res judicata nor collateral estoppel. The plaintiff argues that prior

federal courts failed to fully consider the merits of his action, that his current claims are not

identical to those brought in federal court, and that he did not have a fair opportunity to litigate

his claims.

4

The statute of limitations for claims brought to the Court of Federal Claims is six years

from the date the claim accrues. 28 U.S.C. § 2501. The Supreme Court has held that this statute

of limitations sets an “absolute” deadline for a plaintiff to file a claim. John R. Sand & Gravel

Co. v. United States, 552 U.S. 130, 134 (2008). This statute of limitations is not subject to

tolling. Id.

The Federal Circuit has made clear that the statute of limitations under § 2501 begins to

run “as soon as all events have occurred that are necessary to enable the plaintiff to bring suit.”

Martinez v. United States, 333 F.3d 1295, 1303-04 (Fed. Cir. 2003) (citing Nager Elec. Co. v.

United States, 368 F.2d 847, 851 (Ct. Cl. 1966)). In a military discharge case, a plaintiff’s cause

of action for back pay “accrues all at once at the time of discharge; the claim for back pay is not

a ‘continuing claim’ that accrues each time a payment would be due throughout the period that

the service member would have remained on active duty.” Martinez, 333 F.3d at 1303; see also

Longhine v. United States, 230 Ct. Cl. 920, 922 (1982). The Federal Circuit has also rejected

arguments seeking to extend the accrual date for wrongful discharge beyond the discharge date.

Martinez, 333 F.3d at 1304 (rejecting the argument that the date of accrual begins only after the

service member seeks relief from a correction board and the board enters a final decision).

Subsequent consideration of a plaintiff’s claims by a corrections board neither tolls the running

of the statute of limitations nor restarts the clock. See Real v. United States, 906 F.2d 1557, 1560

(Fed. Cir. 1990). 3

Under these rubrics, in a military pay case predicated on a wrongful discharge, “[i]f the

plaintiff does not file suit within the six-year limitation period prescribed in 28 U.S.C. § 2501,

the plaintiff loses all rights to sue for the loss of pay stemming from the challenged discharge.”

Martinez, 333 F.3d at 1304. The filing of a request for correction from the BCNR “does not toll

or restart the limitations period.” Gaylord v. United States, No. 2025-1555, 2025 WL 2924912

at *2 (Fed. Cir. Oct. 15, 2025) (affirming dismissal of unlawful discharge claim as untimely).

The plaintiff was discharged on March 13, 2007. He filed this claim for wrongful

discharge, more than 18 years after his discharge from the Navy. Neither the plaintiff’s appeals

nor his petition to the BCNR tolled or restarted the limitations period. Accordingly, the

plaintiff’s wrongful discharge claim is barred by the six-year statute of limitations. Even if the

plaintiff’s claims did not accrue until his conviction became final, his claim would still be

untimely. 4 The Supreme Court denied the plaintiff’s petition for certiorari on April 16, 2007,

also more than 18 years before he filed his wrongful discharge claim on July 2, 2025. The

3

There is a wrinkle to claims brought for military disability retirement under the “first

competent board” rule, see Jones v. United States, 30 F.4th 1094, 1100 (Fed. Cir. 2022), but that

rule is not applicable to the plaintiff’s claims.

4

UCMJ Article 71(c)(1), 10 U.S.C. § 871(c)(1), establishes the terminal point for

proceedings within the military justice system. Under that law, the plaintiff’s court-martial

conviction became final when his petition for a writ of certiorari was denied by the Supreme

Court on April 16, 2007.

5

plaintiff’s claims started to accrue either on his date of discharge or on the date the Supreme

Court rejected the plaintiff’s petition to hear his case. In either instance, the date was more than

six years before he filed this complaint. Accordingly, the claims are untimely, and the Court

lacks jurisdiction to consider them under 28 U.S.C. § 2501. 5

The plaintiff has requested that his claims be transferred under 28 U.S.C. § 1631 to the

United States District Court for the District of Columbia if the Court finds dismissal is warranted

in this court. Because the plaintiff has brought a claim for money damages, not a claim under the

Administrative Procedure Act, the district court would not have jurisdiction over his claims. In

addition, the plaintiff has already had numerous bites at the apple in two other districts. Transfer

of his claims to the district court is not in the interest of justice.

IV. CONCLUSION

The plaintiff’s claim for back pay accrued at the latest on April 16, 2007, when his

petition for certiorari was denied by the Supreme Court. His direct appeals to the NMCCA and

Court of Appeals and his various claims to the BCNR and in various federal courts neither tolled

nor restarted the six-year statute of limitations period. The plaintiff filed his claim for wrongful

discharge more than 18 years after April 16, 2007, and as a result his claims are untimely under

28 U.S.C. § 2501. Thus, the Court lacks jurisdiction over the plaintiff’s claims. Therefore, the

defendant’s motion to dismiss (ECF 17) is GRANTED, and the case is DISMISSED. The

Clerk is DIRECTED to enter judgment accordingly. No costs are awarded.

It is so ORDERED.

s/ Richard A. Hertling

Richard A. Hertling

Judge

5

Because the plaintiff’s claims are untimely, they must be dismissed. See RCFC

12(b)(1), (h)(3); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).

Accordingly, the Court does not consider whether the plaintiff’s claims are precluded under the

doctrines of res judicata or collateral estoppel.

6