Keller v. United States

ORIG!t\|At

llntW@nitt! btstts @ourt of febnsl @lsims

FILED

No. l4-985C

(Filed: March 10,201s) MAR I 0 2015

U'S' COURT OF

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,1.

FEDERAL CIAIMS

KEITH L. KELLER,

:

Plaintiff, + Motion to Dismiss; RCFC 12(b)(1); RCFC

+ 12(b)(6); Military PaY; Request for

v. * Reinstatement; Wrongful Discharge; Statute

r of Limitationsl Res Judicata; Claim

THE LINITED STATES, * Preclusion

Defendant. 'i(

t:*,1.1.i(***t+,$*,s*d.:f *,lq***:i++++'f +**{:+++***

Keith L. Keller, Pine Ridge, SD, p1s se.

Jessica R. Toplin, United States Department of Justice, Washington, DC, for defendant'

OPINION AND ORDER

t.

SWDENEY, Judge

PlaintiffKeith L. Keller^ M.D. contends that tlre Air Force Board for Correction of

Military Records ('AFBCMR') arbitrarily and capriciously failed to recommend his

reinstatement to active duty. Defendant moves to dismiss plaintiff s complaint, arguing that

plaintiffs claim is baned by both the statute of limitations and the doctrine oftesjudicata. For

the reasons set fofih below, the court grants defendant's motion.

I. BACKGROUND

Plaintiff entered the United States Air Force ("Air Force") on January 8, 1996, at the rank

of rnajor.r kr both 1996 and 1997, plaintiff was considered, but not selected, for promotion to the

rank of lieutenant colonel. Further, by April 1997, the Air Force had initiated procedues to

I

A comprehensive factual and procedural history can be found in Keller v. United St ,

1 13 Fed. Cl. 779 (2013), aff d per curiam, Keller v. United States, 565 F. App'x 873 (Fed Cir.

2014). Thus, the court limits its recitation ofthe facts and procedural history to what is necessary

to resolve defendant's motion. The relevant infonnation is derived from the complaint, the

exhibits attached to the complaint, the exhibit attached to defendant's motion to dismiss, and the

previous decisions ofthe United States Court ofFederal Claims ("Court ofFederal Claims") and

the United States Court ofAppeals for the Federal Circuit ("Federal Circuit")

substandard performance. This lattercircumstance resulted in

plaintifffor plaintiffs

discharge

honorable discharge from the Air Force on November 26, 1997'

Plaintiff challenged various aspects ofhis discharge before the AFBCMR' which

ftom

ultimately recommended that the Air Force change the teason for plaintiffs discharge

,.substandard performance" to "involuntary release; non-selection, pennanent promotion," and

constructively extend plaintiffs date of separation to June 30, 1998. Dissatisfied

with the

November 26,

limited reliefprovided by the AFBCMR, tlaintiff tirnely filed suit in this court on

2003. The court stayed its proceedings and remanded plaintiff s claims to the AFBCMR'

plaintiff filed a new application for relief with the AFBCMR in which he claimed, among other

things, that he should have been considered for prornotion by a Special Selection Board

("sSB')

In ai october 12,2004 decision, the AFBCMR recornmended that plaintiffbe considered for

promotion by ssBs for 1996 and 1997, and, if he was not selected for promotion by either ssB'

ihat he be considered for continuation on active duty by the 1997 SSB'

The Air Force convened SSBs for 1996 and 199'l in 2005, but neither SSB selected

plaintiff for promotion. However, as reflected in a March i6, 2006 letter addressed to plaintifPs

in

counsel, the 199? SSB selected plaintiff for continuation. The Air Force specifically advised

its letter that plaintiffcould, if he was eligible, request reinstatement to active duty by submitting

to

an application to the AFBCMR. Not set forth in the letter were two other options available

ptainiiff: agree to a continuation on active duty via constructive service or decline continuation

altogether.

OnMay3l,2006,plaintiffscounselsenttheAFBCMRalettermemodalizinghis

understanding ihat if plaintiff accepted continuation "with re-entry into active duty," he would

receive back pay and allowances. Counsel also requested additional information regarding the

oiplaintiff accepting continuation. Of particular note, counsel was concemed with

"onr.qo"rr"",

plaintiff s pay grade:

Please advise me how the Air Forca intends to treat Dr. Keller's advancement in

pay grade. In accordance with Air Force Instruction 36-2501, 6 March 1998, Dr'

Keller would have been eligible for subsequent promotion boards, reassignment,

the associated

[temporary duty], schools, and training, as long as he completed

Active Duty Service cornrnitment before his mandatory retirement date oI Date of

Separation. As a continued officer, Dr. Keller would have had repeat

opportunities for promotion to lieutenant colonel as early as November 1998 and

as late as November 2001 . . . .

At the conclusion ofhis letter, counsel "petition[ed] for [plaintiffs] direct promotlon to

Lieutenani Colonel retroactive to November 2001, or in the altemative, [that] Dr' Kellet recetve

Special Selection Boards for each ye ar alter 1997 for which he was eligible for promotion

consideration." He also wrote: "Since the results of the Special Selection Boards are relevant to

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we request these boards be convened priot to

[plaintiffs] decision on acceptance ofcontinuation,

his retum to active duty."

Plaintiff s counsel received a response to his letter from the Air Force on June 16' 2006

With respect to counsel's pay grade inquiry, the Air Force provided:

The officer Promotions Branch within the Air Force Personnel center indicates

that if Dr. Keller accepted continuation, it would only be for a 3-year period,

taking his date of separation (Dos) to August 2001. He would have been eligible

to meit the [Calendar Year ("CY) ]98, CY99 and CY00 boards. Ifnonselected

by all, he would have been considered for another 3 year continuation offer by the

CY00 board and ifoffered and accepted, would have taken his DOS to 1 July

2004. He would then have been eligible to meet the CY0l, CY02 and CY03

boards. Ifnonselected, he would have been considered for another 3 year

continuation offer by the CY03 board and, ifoffered and accepted, would be

given an August 2007 DOS. . . . Dr. Keller could thus request relief to reflect he

accepted the 3-year continuation in order . . to meet the CY98, CY99 and CY00

boards and if nonselected, [to] meet the CY00 continuation board' If selected for

promotion, he could request reinstatement based on promotion. Ifnonselected,

offered continuation and accepts, he'll have to do the same thing in order to meet

the CY01, CY02 and CY03 boards.

The Air Force did not respond to counsel's petition for plaintiffs direct promotion to the rank of

lieutenant colonel. Nevertheless, in a l:u/ite 22,2006 letter to the MBCMR, counsel indicated

that plaintiffhad decidsd to accept continuation:

Dr. Keller accepts continuation for the 3-year period ending August 2001.

He requests Special Selection Boards for CY98, CY99, and CY00 ai this time. If

the CY98, CY99 or CY00 Boards do not select Dr. Keller for promotion, he will

accept continuation for the 3-year period ending I July 2004 and request Special

Selection Boards for CYO1, CY02, and CY03.

ln the event he is selected for promotion to the grade of lieutenant colonel,

he will request reinstatement based on promotion.

In other words, plaintiff chose to conshuctively serve on active duty from June 30, 1998, to

August 2001.

It appears that upon receiving the letter from plaintiffs counsel, the AFBCMR sought the

opinion of the Air Force Personnel Center regarding the final correction ofplaintiffs records. In

a July 5,2006letter, the Air Force Personnel Center recommended:

-3-

Based on the applicant's acceptance ofcontinuation . ' ' , his record should be

corected to reflect a date ofseparation (DOS) of3l Jul 0l BasedonthisDOS,

he is now eligible to meet the CY98A, CY99A and CY00A Lreutenant Colonel

MC Central Selection Boards. Ifnonselected for promotion by these boards, he

would again be considered for continuation by the CY00A Major Contimiation

Board and if selected he would be offered a DOS of 30 Jun 04. If the applicant

accepted continuation, he would be eligible to meet the CY01A, CY02A and

CYOIA Lieutenant Colonel MC Selection Boards lf nonselected for promotion

by these boards, he would again be considered for continuation by the CY03A

Major Continuation Board and if selected he would be offered a DOS of 31 July

07. Based on this DOS, he would be eligible to meet the CY04A, CY05A and

CY06A Lieutenant Colonel Selection Boards.

.., .

lnsufficient relevant evidence has been presented to demonstrate the

existence ofprobable error or injustice in regard to the applicant's request for

direct promotion to the grade of lieutenant colonel. . . '

... We do not concur with retuming the applicant to active duty with a

.

DOS of31 Jul 07. Although we can assume the applicant would have been

selected for continuation and would have accepted, he would no longer be entitled

to meet SSBs for the promotion board he could have eligible for as continuation is

based on nonseleciion for promotion. Therefore, we recommend [the] applicant

be scheduled for all applicable ptomotion boards and ifnonselected, meet all

continuation boards he would have been eligible for. If the applicant is either

promoted or desires to accept continuation to a date in the fuiure, [the] applicant

should be given the opporhrnity to apply to retum to active duty'

In a July 19,2006 decision, the AFBCMR agreed with the Air Force Personnel Center's

recommendations and adopted its rationale as the basis for its decision that because plaintiff was

the victim of an error or injustice, his records should be corrected to reflect a separation date of

July 31, 2001.

Nine days later, plaintiff s counsel sent the AFBCMR a letter in which he objected to the

AFBCMR's adoption of the Air Force Personnel Center's recommendations First, counsel

noted that the AFBCMR adopted the recommendations without first soliciting comment from

plaintiff. second, counsel noted his understanding that contrary to the position taken by ihe Air

Force Personnel Center, plaintiff would not have been obligated to be considered by continuation

boards in 2000 and 2003 to remain on aetive duty; rather, it was his understanding, based on

previous communications with the Air Force, that plaintiff would continue on active duty

,'unconditionally until he is either retired, ol is promoted to the grade oflieutenant colonel."

counsel therefore requested that the AFBCMR amend its recommendation to reflect that

plaintiffs records should include a specific notation that plaintiffs continuation on active duty

would be unconditional. The AFBCMR responded to plaintilfs counsel's letter on August 15,

i

2006, remarking that because plaintiffs acceptance ofcontinuation "set into motion the follow-

on SSB continuation and promotion process," counsel's request was plemature. The AFBCMR

reiterated this sentiment in an October 17 ,2006letter to counsel.

Proceedings before the Court of Federal Claims remained stayed while the Air Force

calculated, and then paid, the back pay and allowances owed to plaintiffas a result ofhis

continuation on active duty via constructive service. After receiving paynent, plaintiff filed an

amended complaint, and the court lifted the stay. However, on December 2 i , 2009, plaintiff

submitted another application to the AFBCMR, challenging various aspects ofthe process by

which the Air Force conducted the 1998, 1999, and2000 SSBs. As a result, the court once again

stayed proceedings to allow the AFBCMR to consider plaintiffs claims. In an Apil 10,2012

decision, the AIBCMR rejected plaintiffs claims in their entirety. ln reaching its decision, the

AFBCMR made the following three statements relevant to the instant lawsuit: (1) "[Plaintiff]

was offered the oppoftJnity to apply for reinstatement, but instead determined to accept

continuation in order to proceed with further SSBs." (2) "[Plaintiffl was offered an opporhrnity

to request reinstatement to active duty, but instead elected continuation and fudher SSB

consideration." (3)'[Plaintiffl made a deliberate decision to choose continuation and further

SSB consideration over reinstatement . . . ."

Plaintiff filed a second amended complaint on October 1, 2012, reiterating his objections

to the process by which the 1998, 1999, and 2000 SSBs were conducted, and contending that the

AFBCMR's approval ofthat process was arbitrary capricious, contrary to law, or unsupported by

substantial evidsnce. He requested that the court set aside the AFBCMR's decision, compel the

Air Force to correct his record to reflect that he received promotions fiom the rank oflieutenant

colonel through the rank of general, compel the Air Force to correct his record to reflect that he

was reinstated and credit him with back pay and allowances, award him attomey's fees and costs,

and grant him any other relief deemed just and proper.

Il response to the second amended complaint, defendant filed a motion to dismiss and the

parties filed cross-motions for judgrnent on the adninistrative record. In a December 6, 2013

decision, the Court ofFederal Claims granted defendant's motion to dismiss, holding that

plaintiff s request for an order directing the Air Force to promote him through the rank of general

failed to state a claim upon which it could grant reliefl Then, with respect to the cross-motions

for judgnent on the administrative record, the court granted defendant's motion and denied

plaintiff s cross-motion, concluding that the AFBCMR's decision upholding the process by

which the 1998, 1999, and 2000 SSBs were conducted was not arbitrary capricious, contrary to

law, or unsupported by substantial evidence. Based on these rulings, the court disrnissed

plaintiff s second amended complaint with prejudice and directed the entry ofjudgment in

defendant's favor.

On the same day that the Court ofFederal Claims dismissed his second amended

complaint, plaintiff filed an application with the AIBCMR requesting that he be reinstated to

active dufy with a Jdy 3l ,2016 separation date, arguing that he had been improperly "denied [a]

reium to active duty with a lseparation date] of 3 I Jul 07 " He claimed that he discovered the

Ai.Fo...',allegedenoronMarchl6,2006,whenthelggTSsBselectedhimforcontinuation'

to be a request for

On f"Uruury zz]2014, the AFBCMR deemed plaintiff s application

to suppolt it with new,

reconsidefation and then denied the request due to plaintiffs failure

relevant evidence. Plaintiff responded to the AFBCMR that sarne

day ln his letter, he

and

*rut his application should not have been tfeated as a request for reconsideration,

"on,*a"a

that even ifsuch a ciraracterization was proper, he provided the required

evidence, stating:

.{Tlhe AFBCMR itselfprovided new relevalt evidence . . . when it declared . . . an unchanging

Ulii"ittrut 1.. Keller was elieible for reinstatement to active[ ]duty in 2006

" The AFBCMR

responded to plaintiffon lr4arcn ts, zot+, reiterating the position that

it advanced in its February

27 , 2014 letter.

In the meantime, plaintiff, proceeding pro se, appealed the Courl ofFederal Claims'

s primaty contentton

dismissal of his second amended complaint to the Federal Circuit. Plaintiff

on appeal was that the coult ofFederal claims made an erroneous statement

offact in its

December 6, 2013 decision when it remarked that plaintiffs selection

for continuation by the

for reinstatement to

1gg7 SSB piovided plaintiffwith three mutually exclusive options: appllng

or rejecting

active duty, acceptlng contmuation on active duty via constructive sewice,

implied that he had the

continuation altogether. According to plaintiff, the court's statement

ri/as to conhnue on

choice to immediately retum to active duty when, in fact, his only option

prejudicial to

active duty constructively. This purported factual enor, plaintiff contended, was

him because it had negative consequences on many ofhis arguments before the court

ln a May 8, 2014 ruling, the Federalcircuit rejected plaintiffs contention. First, it held

selected for

that there was no clear eror in the Court of Federal Claims' finding that upon being

continuation, plaintiff had the option of seeking reinstatsment to active duty. second,

it

harmless because the

concluded thai even if it had fognd clear error, the error would have been

court ofFederal clairns did not rely on the puryofiedly eraoneous finding in dismissing

plaintiffs second amended complaint. Finally, the Federal circuit noted that plaintiff did not

request a remedy for the alleged error that was within its authority to plovide

Accordingly, the

Federal Circuit affrrmed the decision of the Court of Federal Claims'

Plaintiff, continuing to proceed pro se, filed his cunent lawsuit on october 14, 2014' kr

his complaint, plaintiff argues that the AFBCMR's July 19, 2006 decision was arbitrary

and

capncious because the AFBCMR adopted the Air Force Personnel Center's

recommendations-

colonel and rejecting a separation date

denying him a direct promotion to the rank of lieutenant

of J;ly-31, 2007-rathir than finding that plaintiff should be reinstated to active duty.

According

to plaintiff, the AFBCMR should have directed his reinstatement to active duty because

it had

previously determined that plaintiff was eligible for reinstatement. Indeed, plaintiff asserts, the

AFBCMR revealed for the first time in its April 10,2012 decision that it had always understood

that plaintiff was eligible for an unconditional continuation on active duty. To

remedy the

,q.petN4n's alleged-error, plaintiff requests that the court set aside the AFBCMR's April 10,

to reflect

2012, andMarci 18, 2014 decisions; compel the Air Force to correct his record

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constfuctive reinstatement to active duty from August l, 2001, until his actual reinstatement to

active clitty or placement in retiremeni status; and compel the Air Force to cledit him with all

required back pay and allowances.

On December 15,2014, defendant moved to disrniss plaintiffs complaint pursuant to

Rule 12(b) of the Rules of the United States Court of Federal Claims ("RCFC"). Briefing is

complete and, because oral argurnent unnecessary the court is prepared to rule.

II, DISCUSSION

A. Standard of Review

Defendant moves to dismiss plaintiff s complaint pursuant to RCFC 12(bXl) for lack of

jurisdiction and pursuant to RCFC 12(bX6) for failure to state a clain upon which the court

could grant relief. In ruling on a motion to dismiss, the court assumes that the allegations in the

complaint are true and construes those allegations in the plaintiff s favor. U9gk9J:-Unri!g!

States, 60 F.3d 795,797 (Fed. Cir. 1995). With respect to RCFC l2(b)(l) motions, the plaintiff

bears the burden ofproving, by a preponderance of the evidence, that the court possesses subject

matter jurisdiction. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936);

Revnolds v. Army & Air Force Exch. Serv. ,846 F.2d746,748 (Fed. Cir. 1988). Although

complaints filed by plaintiffs proceeding pro se are held to "less stringent standards than formal

pleadings drafted by lawyers," Haines v. Kemer,404 U.S. 519,520-21 (1972), a plaintiff

proceeding pro se is not excused from meeting basic jurisdictional requirements, Henke, 60 F.3d

at 799. Ifthe court finds that it lacks subject matter jurisdiction over a claim, RCFC 12(hX3)

requires the court to dismiss that claim.

A claim that survives a jurisdictional challenge remains subject to dismissal under RCFC

12(b)(6) if it does not provide a basis for the court to grant relief. Lindsay v. United States, 295

F .3d 1252, 1257 (Fed. Cir. 2002) ("A motion to dismiss . . . for failure to state a claim upon

which relief can be granted is appropriate when the facts asserted bythe claimant do not entitle

him to a legal remedy.'). To survive a motion to dismiss under RCFC 12(bX6), a plaintiffmust

include in its coinplaint "enough facts to state a claim to reliefthat is plausible on its face." Bell

Atl. Com. v. Twomblv, 550 U.S. 544, 570 (2007). In other words, a plaintiff must "plead[]

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged." Ashcroft v. iqbal, 556 U.S. 662,678 (2009) (citing Bell Atl. Com.,

550 U.S. at 556). "[O]nce a claim has been stated adequately, it may be supported by showing

any set of facts consistent with the allegations in the complaint." Bell Atl. Com.. 550 U.S. at

563. Indeed, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes , 416 U.5. 232,

236 (1974), Sygnu&d-gl1-Ajhgr-gg4 Harlow v. Fitzserald,457 U.S. 800, 814-19 (1982).

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B'TheCourtLacksJurisdictiontoEntertainPlaintiffsComplaint

is baned by the

In iis rnotion to dismrss, defendant first argues that plaintiffs complaint

statuteoflimitations.Tofallwithinthecourt'sjurisdiction,claimsagainsttheUnitedStates.

must be "filed within six years after such claim hrst accrues

" 28 U S C $ 2501 (2012); se9 also

(2008) (providing that the

iohn R. Sand & Gravel Co. v. United States,55? U S: 130, 133-35

is an "absolute" limit on the ability of the court

@01 within the meaning of

of Federal |laims to reaoh the merits of a claim). "A claim first accrues

the statute of limitations when all the events have occuned which

fix the liability ofthe

Park Estates-F?irfield Dgy'

Govemment and entitle the claimant to institute an aciion." Brown

quotation marks omitted)

co. v. united States , 127 F .3d 1449, 1455 (Fecl. Cir. 1 997) (intemal

hlTltlit"'ydt*'*'c.cases,thegovemment'sliabilityisfixedandaplaintif|sentit]ementtosue

(Fed. Cir.

,ip"nr, on th" dut"-of discharge.- Martinez v. united states, 333 F.3d 1295,1103-04

2003) (en banc).

argues that becausc

The parties dispute the accrual date of plaintifls claim. Defendant

pay and allowalces

plaintiff s request for ieinstatement to active duty and the resulting back

on the date of his

constitutes riief for a claim of wrongful discharge, plaintifPs claim accrued

separation from the Air Force.

plainiifr, on the other hand, characterizes his claim as one for

yet accrued because his

reinstatement to active duty, and contends that his claim has not

eligibility for reinstaternent has never been explicitly stated by the AiI Force. There

are sevetal

flaws with plaintiff s Position

First, plaintiffs position is setf-defeating; if plaintiffs characterization ofhis claim

is

be ripe for

accurate and his claim has not yet accrued, then plaintifPs claim would not

a judication by this court. ses Thornas v. union calbidp AFic. Prods. co.,473 U.S.568' 580-

Si(fSSS) (noting that a claim is not ripJ for judicial review when it is contingent upon

fuh'e

events that may or may not occur). Seiond, plaintiff has not cited, and the

court is not aware of,

not heated as a remedy_for

any case law in which a request for reinstatement to active duty was

duty

wiongful discharge. To the contrary, former setwice members seek reinstatement to active

Carmich?ql v.

when"they believJ that their discharge from the military was unlawful. See. e.9.,

29-

United Siates, 298 F.3d t367 , 1370-71 (Fed. Cir. 2002); Cometta v. United States, 851

,I _

wTw-c F"a. cir. 1988) (en banc); Klineenschmitt v. United States, I l9 Fed..CI. 163, his

180

(2014). Thi;d, the fact that plaintiff requests back pay and allowances dating back to

consnuctive siparation from the Air Foice supports the proposition that plaintiff believes that his

discharge was i-prop".. In sum, the court concludes that plaintifls request

for reinstatement to

as relief for a

active duty and associated back pay and allowances is properly characterized

on the date of his

wrongful iischarge claim, and thai plaintiff s wrongful discharge claim accrued

separation from the Air Force

Theonlyissuethatremains,then,iswhetherplaintiffswrongfuldischargeclaimaccrued

within the six-year statute of limitations. In defendant's view, plaintiff s claim accrued on

the

date of his initial, actual separation from the Air Force-November 26, 1997.

it can also be

-8-

argued that plaintiffs claim accrued on the date ofhis constructive separation from the Air

Force-July 31, 2001. In eiiher case, plaintiffls clairn wouldbe time-baned because he did not

file his cornplaint until October 14,2}14,well more than six years later''? Accordingly, the court

must dismiss plaintiff s complaint for lack ofjurisdiction

C. Plaintiff Has Failed to State a Claim Upon Which the Court Could Grant Relief

Even ifplainfiffs claim for wrongful discharge was not time-barred, argues defendant,

his claim would be baned by the doctrine of res judicata. Res judicata, as the tetm is commonly

used, encompasses the related concepts of claim preclusion and issue preclusion. Tavlor v.

Sturgell, 553 U.S. 880, 892 (2008); Misra v. waren City Sch. Dist. Bd. of Edus.,465 U.S. 75,

77 n.1 (1984). "Claim preclusion refers to the effect ofajudgnent in foreclosing litigation ofa

matter that never has been litigated, because ofa determination that it should have been advanced

in an earlier suit. Claim preclusion therefore encompasses the law of merger and bar." Miga,

465 U.S. at77 n.l. In contrast, "[i]ssue preclusion refers to the effect of ajudgment in

foreclosing relitigation of a matter that has been litigated and decided. This effect also is refemed

to as direct or collateral estoppel." Id. (citation omitted). "By 'preclud[ing] parties from

contesting matters that they have had a full and fair opporhmity to litigate,' these two doctrines

protect against 'the expense and vexation attending multiple lawsuits, conserv[e] judicial

resources, and foste[rl reliance on judicial action by minimizing the possibility ofinconsistent

decisions."' Tavlor,553 U.S. at 892 (quoting Montana v. United States,440 U.S. 147,153-54

(1979).

In this case, defendant invokes the doctrine of claim preclusion. "Claim preclusion

applies when '(l) the parties are identical or in privity (2) the first suit ploceeded to a final

judgment on the merits; and (3) the second claim is based on the same set of transactional facts

as the first. "' Phillips/lr4av Com. v. United States , 524 F.3d 1264, 1268 (Fed. Cir. 2008)

(quoting Amrnex. Inc. v. United States, 334 F.3d 1052, 1055 (Fed. Cir. 2003)); see also Nevada

v. United States, 463 U.S. 1 10, 129-30 (1983) ("[T]he doctrine of res iudicata provides that when

a final judgnent has been entered on the merits of a case, '[i]t is a finality as to the claim or

demand in controversy, concluding parlies and those in privity with them, not only as to every

matter which was offered and received to sustain or defeat the claim or demand, but as to any

other admissible matter which might have been offered for that purpose."' (quoting Cromwell v.

Cntv, of Sac, 94 U.S. 351, 352 (1876))); Do-Well Mach. Shop, Inc. v. United States, 870 F.2d

2 To the extent that plaintiff contends that his wrongful discharge claim accrued on July

19, 2006-the date that the AFBCMR recommended that his records be conected to show a

continuation on active duty via constructive service rather than a reinstatement to active dutfhe

is inconect. For one, "a plaintiff s invocation of a pennissive administrative remedy," such as

seeking relieffrom a military correction board, "does not prevent the accrual of the plaintiff s

cause ofaction, nor does it toll the statute of lirnitations pending the exhaustion ofthat

administrative remedy." Martinez,333 F.3d at 1304. In addition, the AFBCMR issued its

decision more than six years before plainfiff filed his complaint.

-9-

carries res jg!!94q9

637 . 640 Ged. Cir. 1989) (noting that while a "dismissal on the merits

effect," a "dismissal for want ofjurisdiction does not")'

the parties in the

There can be no dispute that the parties in this case are identical to

in judgment on the merits.

lawsuit filed by plaintiff in 2003, or that the 2003 lawsuit resulted a

"is based on the same

Thus, the only question to be resolved is whether plaintiff s current

claim

question of

set oi transaciional facts" as the claims he raised in his earlier lawsuit. "ff]he

'to determined pragmatically,

whether two claims involve the same set of fansactional facts is be

origin, or

giving weight to such considerations as whether the facts are related in time, space,

their treatrnent as a unit

irotir,-ation, whettrer they form a convenient trial unit, and whether

confonns to the parties' expectations or business understanding or usage."'

Phillips,Mav Com''

(1982)); see also AmTex,

524F.3d at 127 i (quoting Restatement (second) Judgrnents $ 24(2)

'core of

Inc., 334 F.3d at 1056 (n;ting that "courls have defined 'transaction' in tetms ofa

operative facts,' the 'sarne operative facts,' or the 'sarne nucleus of operative

facts,' and 'based

on the same, or nearly the same factual allegations"')'

In his current complaint, plaintiff alleges that he was improperly separated

from the Atr

should not have

Force, contending in partiiular that the AFBCMR, in its July 19,2006 decision,

adopted the ,"com-endation ofthe Air Force Personnel Center over its own

view that plaintiff

was eligible for reinstatement to active duty. He therefore seeks reinstatement to active duty and

the resrilting back pay and allowances. In the second amended complaint that he filed

in the

2003 lawsuit, plaintiff alleged that he was improperly separated from the Air Force due

to

2000 SSBs,

deficiencies in th" p.or"rr by which the Air Force conducted the 1998, 1999, and

and that the AIBCMn, in its April 10, 2012 decision, refused to correct his records

to cure those

He therefore sought, among other relief, reinstatement to active duty and the

deficiencies.

resulting back pay and allowances'

The allegations in both the current complaint, filed on octobet 14,2014, and the second

arnended cornplaint from the 2003 case, hled on october 1, 2012, ale drawn from the same

factual circumstances: plaintiff s separation from the Air Force in 1997; the AFBCMR's

initial

failure to grant plaintiff any reliefbeyond conecting the date of, and reason for, his separation

from the,{ir Foice; the AFBCMR's subsequent recommendation that plaintiff be considered

for

promotion by the 1996 and 1997 SSBs; rhe 1997 SSB's selection of plaintiff for continuation and

the conespondence

suggestion that plaintiff may be able to apply for reinstatement to active duty;

beiieen plaintiifs counsel and the AFBCMR regarding plaintiffs options for continuing on

active duiy; plaintiff s decision to request continuation on active duty via constructive sewice;

the ApSiMR's July 19, 2006 decision memorializing plaintiffs choice and adopting

the

recommendations ofthe Air Force Personnel Center that plaintiffbe considered for

promotion by

the 1998, 1999, and 2000 sSBs, not be directly promoted to the rank of lieutenant colonel, and

not be reinstated to active duty with a separation date ofJuly 31,2007; the objections raised by

plaintiff s counsel to the AFBCMR',s decision and the AFBCMR',s responses to those objections;

plaintiffs nonselection for promotion or continuation by the 1998, 1999, and 2000 ssBs, leading

to a constructive separation date of July 31,2001; plaintiff s challenge to the process by which

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the three most recent ssBs were conducted; and the rejection ofplaintiffs challenge by the

AFBCMR on Apil 10,2012. Further, in both this case and the 2003 case, the reliefrequested by

plaintiff is the same: reinstatement to active duty and the associated back pay and allowances'

And, in its decision affrrming the ruling of the court of Federal claims in the 2003 case, the

Federal Circuit specifically addressed whether plaintiff had the opportunity to apply for

reinstatement to active duty after he was selected for continuation.

In sum, plaintiffs current claim for wrongful discharge is based on the same transactional

facts upon which he based the claims that he articulated in the second amended complaint filed in

the 2003 case. Thus, all three elements ofclaim preclusion are satisfied. Accordingly, even if

plaintiff s complaint was timely filed, it would have been barred by the doctrine of res judicata.

III. CONCLUSION

As set forth above, because plaintifPs claim for wrongful discharge is baned by the

statute of limitations, the court GRANTS defendant's motion to dismiss and DISMISSES

plaintiffs complaint for lack ofjurisdiction. No costs. The clerk is directed to enter judgrnent

accordingly.

IT IS SO ORDERED.

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