Johnson v. United States

3Jn tbe Wniteb ~tates Qtourt of jfeberal Qtlaitrts

No. 14-1236 C

(Filed August 20, 2015) FILED

AUG 2 0 2015

* * * * * * * * * * * *** * U.S. COURT OF

ANTONIO JOHNSON, * FEDERAL CLAIMS

*

Pro Se Plaintiff, * Military Pay and Disability

* Retirement Claims; Accrual of

v. * Claims.

*

THE UNITED STATES, *

*

Defendant. *

* *** ** ** * ** * * *

Antonio Johnson, Lagrange, KY, pro se.

Antonia R. Soares, United States Department of Justice, with whom were

Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Robert E.

Kirschman, Jr., Director, Martin F. Hockey, Jr., Assistant Director, Washington,

DC, for defendant. Captain Christopher J Koschnitzky, United States Army

Legal Services Agency, Fort Belvoir, VA, of counsel.

OPINION AND ORDER

Bush, Senior Judge.

This military pay and disability retirement benefits case is before the court

on defendant's motion to dismiss filed under Rule 12(b)(l) of the Rules of the

United States Court of Federal Claims (RCFC). Defendant's motion has been

fully briefed and is ripe for decision. 1 For the reasons stated below, defendant's

motion is granted in part and denied in part.

BACKGROUND 2

I. Overview of Claims

The pro se complaint filed in this case contains two overarching claims.

First, plaintiff requests relief related to his involuntary discharge from the United

States Army in 1988. These requests for relief, as far as can be discerned from the

somewhat jumbled presentation of factual allegations and legal theories in the

complaint, include demands that certain disciplinary documents be expunged from

plaintiff's service record, that he be restored to his former "rank of E-4," and that

he receive a commensurate award of back pay for his service from June 14, 1988

to December 13, 1988. Compl. at 10. Plaintiff also asserts that his discharge in

1988 was void because it was illegal. Id. at 4-5. The court refers to any and all of

plaintiff's legal and equitable claims related to the circumstances of the Army's

disciplinary actions and the subsequent administrative discharge of Mr. Johnson as

his "wrongful discharge" claim.

The complaint then presents a different claim which, like the wrongful

discharge claim, focuses on 1988 and the circumstances surrounding the

termination of Mr. Johnson's service in the Army. In this claim, however, plaintiff

asserts that he should have been discharged for medical reasons, not disciplinary

reasons. The relief requested for this claim is variously stated in the complaint but

may be succinctly summarized as a demand for "physical disability retirement with

1

/ The court has before it: (1) the complaint, which includes an appendix of exhibits;

(2) defendant's motion to dismiss, which also includes an appendix; (3) plaintiff's response brief;

(4) defendant's reply brief; and, (5) plaintiffs "Motion for Leave to Grant Plaintiff Relief," filed

June 1, 2015, which the court deems to be plaintiff's sur-reply brief. Defendant reproduces the

complaint exhibits in its own appendix. See Def. 's Mot. at 1 n.1; Def. 's App. at 1-145. For these

documents the court cites to defendant's appendix because its index and pagination are less

confusing, and also because defendant's appendix is available to the public after having been

redacted to protect plaintiffs confidential information pursuant to RCFC 5.2.

2

/The facts upon which the parties rely are undisputed unless otherwise noted. The court

makes no findings of fact in this opinion other than to determine its jurisdiction over this suit.

2

pay as a sergeant E-5." Compl. at 23. The court refers to any and all of plaintiff's

legal and equitable claims related to his medical evaluation by the Army and his

alleged service-connected disabilities as his "disability retirement" claim.

II. Factual History

Mr. Johnson joined the Army on January 29, 1980. Compl. at 3. He

achieved the rank of sergeant (E-5). Def.' s App. at 103. In 1988 plaintiff still had

approximately three years left on an enlistment contract when disciplinary actions

were taken against him; these actions resulted in two reductions in rank, from E-5

to E-4, and then from E-4 to private (E-1 ). Compl. at 4; Def.' s App. at 105. Mr.

Johnson was then discharged on December 13, 1988 with a notation of

"Misconduct - Commission of a Serious Offense" on his discharge papers, Def.' s

App. at 1, and received a general discharge under honorable conditions, Compl. at

4. The court reserves further examination of the facts of Mr. Johnson's discharge

for the analysis section of this opinion.

III. Procedural History

According to the complaint exhibits, as supplemented by defendant's

motion and accompanying exhibits, Mr. Johnson initiated several attempts to

appeal his discharge once he was forced to leave the Army. None of these

attempts was successful. According to defendant's motion, Mr. Johnson's efforts

to appeal his discharge proceeded through several fora, including this court in

2001:

Beginning with the filing of a complaint in this Court in

2001 and then by filing applications with the Army

Discharge Review Board (ADRB) in 2002 and the Army

Board [for] Correction [of] Military Records (ABCMR

or board) in 2003, Mr. Johnson has asserted that he was

wrongfully discharged from the Army in 1988, and that

he deserved various corrections to his military records.

Def. 's Mot. at 2 (footnotes and citations omitted). In this court, Mr. Johnson's suit

was dismissed because he contested his discharge twelve years after the claim

accrued, exceeding this court's six-year statute of limitations provided by 28

3

U.S.C. § 2501 (2012). See Johnson v. United States, No. Ol-18C, slip op. at 4-6

(Fed. CL May 31, 2001) (Johnson!); see also Def.'s App. at 182-84.

After this unsuccessful "first round" of wrongful discharge claims and

applications for relief, Mr. Johnson returned to the ABCMR in 2013. According

to the government,

[o]ver ten years after Mr. Johnson filed his initial

ABCMR application, in September 2013[] Mr. Johnson

filed another application with the ABCMR, asserting the

same claims as before, but this time also asserting that he

should have received military disability benefits at the

time of his discharge in 1988.

Def.'s Mot. at 2 (citing Def.'s App. at 90-92). Mr. Johnson's recent application

for relief from the ABCMR eventually included four letters sent to the board

(dated September 25, 2013, July 25, 2014, August 1, 2014 and August 15, 2014)

as well as numerous exhibits provided by plaintiff. See Def.'s App. at 102.

All of Mr. Johnson's requests for relief were denied by the board on

October 7, 2014. Plaintiff appealed the ABCMR's decision by filing a complaint

in this court on December 24, 2014. Indeed, Mr. Johnson named the ABCMR as

the defendant in this suit. See Compl. at 1. Because the only proper defendant in

this court is the United States, Mr. Johnson's claims must be viewed as directed

against the United States. 3 In its motion to dismiss, the government asserts that

the claims in the complaint are untimely.

DISCUSSION

I. Standards of Review

A. Pro Se Litigants

The court acknowledges that Mr. Johnson is proceeding prose and is

3

/ Subsequent filings by Mr. Johnson have correctly listed the United States as the

defendant in this suit.

4

therefore "not expected to frame issues with the precision of a common law

pleading." Roche v. US. Postal Serv., 828 F.2d 1555, 1558 (Fed. Cir. 1987). Pro

se plaintiffs are entitled to a liberal construction of their pleadings. See Haines v.

Kerner, 404 U.S. 519, 520 (1972) (requiring that allegations contained in a prose

complaint be held to "less stringent standards than formal pleadings drafted by

lawyers"). Accordingly, the court has thoroughly examined the complaint,

plaintiffs response brief and his sur-reply brief and has attempted to discern all of

plaintiffs legal arguments.

B. RCFC 12(b)(1)

In rendering a decision on a motion to dismiss for lack of subject matter

jurisdiction pursuant to RCFC 12(b)( 1), this court must presume all undisputed

factual allegations to be true and construe all reasonable inferences in favor of the

plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other

grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Reynolds v. Army & Air

Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). However, plaintiff bears

the burden of establishing subject matter jurisdiction, including jurisdictional

timeliness. Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed. Cir.

1998) (citingMcNuttv. Gen. Motors Acceptance Corp. ofInd., 298 U.S. 178, 189

(1936)). To meet this burden, plaintiff must establish jurisdiction by a

preponderance of the evidence. Reynolds, 846 F.2d at 748 (citations omitted).

II. Analysis

A. Wrongful Discharge Claim

The complaint asserts that Mr. Johnson was wrongfully discharged by the

Army in 1988. It appears that at least one aspect of his discharge involved an

allegation that Mr. Johnson was apprehended by civilian authorities for driving

under the influence of alcohol. Compl. at 10-12. Other allegations mentioned in

the complaint include Mr. Johnson's involvement with a military vehicle accident

and absenting himself from duty without leave. Id. at 14-15. Plaintiff argues that

his discharge was illegal for a number of reasons, such as: (1) the facts did not

support the allegations against him; (2) he was subjected to unconstitutional

double jeopardy; and (3) there were regulatory improprieties in the procedures

used to discharge him from the Army. Id. at 9-12. The relief Mr. Johnson

5

requests for his wrongful discharge claim, although the complaint is somewhat

difficult to decipher on this point, includes "E-4 back pay with daily compound

interest ... from June 14, 1988 to [the present] day." Id. at 11.

The court cannot reach the merits of plaintiffs wrongful discharge claim

because it was filed too late. Military pay claims based on a theory of wrongful

discharge accrue at the time of discharge. Martinez v. United States, 333 F.3d

1295, 1313-14 (Fed. Cir. 2003) (en bane). Any timely wrongful discharge claim,

in this case, would necessarily have been filed before December 13, 1994, i.e.,

within six years of Mr. Johnson's discharge from the Army. Because Mr.

Johnson's complaint was filed December 24, 2014, twenty years after the six-year

limitations period provided by 28 U.S.C. § 2501 had expired, this court lacks

jurisdiction over his wrongful discharge claim. John R. Sand & Gravel Co. v.

United States, 552 U.S. 130, 134-35 (2008). The court notes that Mr. Johnson's

previous wrongful discharge claim before this forum, Johnson I, was also

dismissed on timeliness grounds. For these reasons, the wrongful discharge claim

stated in the complaint must be dismissed. 4

B. Disability Retirement Claim

Mr. Johnson relies upon his Army medical records as support for his

physical disability retirement benefits claim. Compl. at 17. Plaintiff argues that

he was diagnosed with "over 30 thirty combine[ d] injuries and diseases" during

his eight years of service in the Army. Id. at 18. He concludes, therefore, that he

should have received service-connected disability ratings related to his military

service. Further, Mr. Johnson argues that it was a violation of regulation when no

such disability findings were made by the Army at the time of his discharge. Id. at

20-21. In essence, plaintiff suggests that the Army was compelled by law and

regulation to award him a disability retirement in 1988 rather than an

administrative discharge. See id. at 21 ("If it was not for the illegal demotion and

discharge, I would have been medical[ly] retired with pay of a sergeant E-5 .").

Plaintiff argues that there is no statute of limitations bar to his disability

retirement claim. Compl. at 23. The government disagrees. Def.'s Mot. at 16-18.

4

Plaintiff concedes that this court's statute of limitations bars some of the back pay

/

reliefrequested in the complaint. Pl. 's Resp. at 3-4.

6

As discussed below, plaintiffs disability retirement claim is not barred by this

court's statute of limitations.

1. General Accrual Rule for Disability Retirement Claims

In 2005, the United States Court of Appeals for the Federal Circuit issued

Chambers v. United States, 417 F.3d 1218 (2005), its seminal decision on the

accrual of military disability retirement claims. It is now well established that:

Unlike claims for unlawful discharge, ... claims of

entitlement to disability retirement pay generally do not

accrue until the appropriate military board either finally

denies such a claim or refuses to hear it.

Id. at 1224 (citations omitted). Here, the first claim submitted by Mr. Johnson for

disability retirement pay was presented to the ABCMR in 2013 and denied in

2014. Pursuant to the precedential rule of law stated in Chambers, the disability

retirement claim filed in this court in 2014 was filed well within this court's

six-year statute of limitations.

2. Exception to the General Accrual Rule for Disability

Retirement Claims

The government notes that an exception exists to the general accrual rule

provided in Chambers. The court reproduces here the government's formulation

of this exception:

A claim for medical disability benefits, however, will

accrue on the date of discharge when a service member

has knowledge of his medical condition at the time of

discharge, and thus notice of the right to sue.

Def.'s Mot. at 16 (citing Real v. United States, 906 F.2d 1557, 1560 (Fed. Cir.

1990); Barney v. United States, 57 Fed. Cl. 76, 85 n.3 (2003)). In Chambers,

however, the Federal Circuit provided a somewhat more nuanced statement of the

Real exception to the general rule for the accrual of disability retirement claims:

7

Real did not fashion a rule, as the government suggests,

that a service member's claim accrues when he learns of

his disabling condition, whether before or after

discharge. Indeed, such a rule would be untenable, given

that a military board must determine eligibility for

disability retirement before such a claim accrues. There

can be no waiver of board review absent an opportunity

for such review, as at discharge. Simply put, after

discharge, a veteran has nothing to waive. The

appropriate inquiry under Real, therefore, is whether at

the time of his separation from the Army ... , [the

plaintif!J knew that he was entitled to disability

retirement due to a permanent disability that was not a

result of his intentional misconduct and was

service-connected.

417 F.3d at 1226 (emphasis added). Thus, in this case, the question is whether Mr.

Johnson knew, in 1988, that "he was entitled to disability retirement due to a

permanent disability that was not a result of his intentional misconduct and was

service-connected." Id.

The Army determined that Mr. Johnson was not disabled and was medically

fit in 1988. Def.'s Mot. at 17; Def.'s App. at 68. As he was being processed for

separation, Mr. Johnson testified that "I have never stopped performing my duties

since [separation procedures were initiated]." Def. 's App. at 58. Although Mr.

Johnson did experience medical problems in 1988, and testified then that he had

"spots" on his lungs, his medical restrictions in 1988 were later characterized by

the ABCMR as temporary. Id. at 55, 105. Although plaintiff now claims that he

was permanently disabled in 1988, the record does not show that Mr. Johnson

knew, in 1988, that he was permanently disabled at that time.

The facts in this case are somewhat analogous to those discussed in

Chambers:

We hold that the record is bereft of any evidence that

Chambers possessed such knowledge [of a permanent

disability]. The medical diagnoses Chambers received

8

prior to discharge - "transient stress reaction," "transient

situational stress," and "mild situational anxiety" - all

indicated that his condition was minor, temporary, and

circumstantial. Nothing in the record indicates that

Chambers considered these diagnoses to be erroneous.

Chambers also knew that he was returned to regular duty

after his brief hospitalizations. Thus, in 1970, he had no

basis for concluding the Army erred in finding him fit for

duty and hence suitable for discharge. The Real

exception does not apply.

417 F.3d at 1226-27. The government nonetheless attempts to analogize the facts

in this case to cases which pre-date Chambers and its precedential formulation of

the Real exception to the general accrual rule for disability retirement claims.

Def.' s Mot. at 16-18. The court finds these cases to be inapposite because the

crucial interpretation of the Real exception provided by Chambers did not yet

exist. 5

Since Chambers issued in 2005, this court has been reluctant to apply the

Real exception when a service-member was found to be fit at the time of discharge

and that service-member's medical records were inconclusive as to permanent

disability. See, e.g., Colon v. United States, 71 Fed. Cl. 473, 482 (2006) (holding

that "Mr. Colon possessed insufficient knowledge that he suffered from a

disability that made him eligible for disability retirement when he was discharged

in 1975" (citing Chambers, 417 F.3d at 1226-27)); Van Allen v. United States, 70

Fed. Cl. 57, 63 (2006) (stating that "on the record before the court it cannot be

concluded that, upon his separation, plaintiff possessed the level of knowledge

required to cause a claim for disability retirement pay to accrue at that point,

absent Board action or refusal to act"). Following Chambers, Colon and Van

Allen, the court concludes that the Real exception does not apply here and that Mr.

5

/ To the extent that defendant might argue that earlier precedent provides different

guidance than the analysis of the Real exception presented in Chambers, the court notes that the

Federal Circuit in Chambers considered two of the "analogous" cases relied upon by defendant in

its motion. Chambers, 417 F.3d at 1225-26 (citing Miller v. United States, 361 F.2d 245 (Ct. Cl.

1966); Huffaker v. United States, 2 Cl. Ct. 662 (1983)). Following Chambers, this court must

reject defendant's overbroad view of the Real exception to the general rule for the accrual of

disability retirement claims.

9

Johnson's disability retirement claim first accrued in October 2014 when the

ABCMR denied his claim and notified Mr. Johnson of the board's decision. 6

Because his claim accrued in October 2014 and his complaint before this court

was filed in December 2014, Mr. Johnson's disability retirement claim is not

barred by 28 U.S.C. § 2501.

CONCLUSION

Plaintiffs wrongful discharge claim is barred by this court's statute of

limitations. Plaintiffs disability retirement claim survives defendant's

jurisdictional challenge. Mr. Johnson's disability retirement claim appears to be

amenable to resolution on cross-motions for judgment on the administrative

record. 7 For the foregoing reasons, it is hereby ORDERED that:

(1) Defendant's Motion to Dismiss, filed April 24, 2015, is GRANTED

in part as to

(a) Plaintiffs wrongful discharge claim, which is DISMISSED

without prejudice for lack of subject matter jurisdiction;

6

Defendant notes Mr. Johnson's mention of "service connected injuries that claim

/

limited use of left arm" in a communication with the Army Discharge Review Board in 2002 and

appears to suggest that this comment signals an alternative accrual date for any disability

retirement claim. Def.'s Mot. at 18 (citing Def.'s App. at 73). The Federal Circuit in Chambers,

however, expressly excluded post-discharge events from the Real exception to the general

accrual rule. See Chambers, 417 F.3d at 1226 ("Real did not fashion a rule, as the government

suggests, that a service member's claim accrues when he learns of his disabling condition,

whether before or after discharge .... There can be no waiver of board review absent an

opportunity for such review, as at discharge. Simply put, after discharge, a veteran has nothing

to waive.").

7

/ The government should include any motion to dismiss pursuant to RCFC 12(b)(6) in a

combined brief along with its motion for judgment on the administrative record. Thus, the

parties will be expected to file the following sequence of briefs: (1) defendant's motion for

judgment on the administrative record, including any motion to dismiss pursuant to RCFC

12(b)(6); (2) plaintiffs cross-motion for judgment on the administrative record, including

plaintiffs response to defendant's motion(s); (3) defendant's response/reply brief; and, (4)

plaintiffs reply brief.

10

and DENIED in part as to

(b) Plaintiff's disability retirement claim;

(2) Defendant is directed to FILE an Administrative Record

pursuant to RCFC 52.1, as well as the government's Motion

for Judgment on the Administrative Record, on or before

October 20, 2015; and

(3) Subsequent briefing on the administrative record shall follow

pursuant to the rules of this court.

11