Listwa v. United States

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No. 15-1 I 13C FILED

(Filed: May 23,2016)

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U.S. COURT OF

STEVEN R. LISTWA, FEDEMLC|jIMS

* Pro Se Plaintiff; RCFC l2(bXl); Tucker

Plaintiff, * AcU Statute of Limitations; Application to

* Proceed ln Forma Pauoeris

THE UNITED STATES,

Defendant. ;t

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Steven R. Listwa, Philadelphia, PA, pro se.

Alison S. Vicks, United States Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

SWEENEY, Judge

Before the court is plaintiff s p1q se complaint, in which he alleges that he was

unlawfully discharged from the United States Army ("Army") in 1966. Plaintiff seeks to

proceed in forma pauperis ("IFP") and he seeks a referral to the "Pro Bono/Attorney Refenal

Pilot Program." Defendant moves to dismiss the complaint pursuant to Rule l2(b)(1) of the

Rules of the United States Court of Federal Claims ("RCFC"). For the reasons set forth below,

the court grants the plaintiff s IFP motion, denies his motion for referral, and grants defendant's

motion to dismiss.

I. BACKGROTIND

A. Factual Background

On November I 0, I 965, plaintiff completed a pre-enlistment medical examination ior the

Army. Def.'s Mot., Ex. l at 000031 . Plaintiff s vision was found to be within normal iimits and

he was allowed to enter active duty, which he did on January 3, 1966. Id. As a result of the

examination, it was noted that he had a history of eye injury and had undergone eye surgery. Id.

On January 7, 1996, plaintiff s eyesight was again examined, this time at the Eye Clinic

at Walson Army Hospital at Fort Dix, New Jersey. Id. at 000031-32. This examination revealed

abnormalities ofthe retina. Id. The examining physician therefore concluded that plaintiffwas

"unfit for induction into the Armv" but was "fit for retention." Id. at000033. The physician

therefore recommended that plaintiff "meet a Medical Evaluation Board and [be separated] from

the service." Id.

On January 13,1966, pursuant to the dictates ofa medical board, plaintiff was placed on

medical hold. Id. at 000031. While on medical hold, plaintiff developed symptoms of a viral

respiratory infection. Id. Plaintiff remained on medical hold until March 29,1966. Id. Notes

from plaintiffs medical records, dated January 19,1966 and February 25,1966, reflect that

plaintiff "had only minor or no symptoms." !!

On February 10, 1966, plaintiff requested his own discharge from the Army: "Request

that I be discharged from the service UP AR 635-205. I have had eye ftouble since 1958,

estimated ar 201400 and 20/200 both eyes with glasses. Doctor a! Optometry Clinic, Walson

Army Hospital said my eyes are not acceptable for service in the U.S. Army." Id. at 000040-41.

Plaintiff was separated from the service on April 5, 1966. Id. at 000040.

In August 1980, plaintiff applied to the Army Board for Correction of Military Records

(.'ABCMR') to have his records changed to reflect that he was not discharged voluntarily but

rather as a result of a permanent physical disability. Id. at 000041 ; 67-69. Prior to the

ABCMR's making a decision on plaintiff s August 1980 application, plaintiff requested, on May

8, 1981, that the application be closed so that he could apply to the Navy. Id.; see also id. at

000057, 000060.

On October 14,2003, plaintiff again petitioned the ABCMR to have his medical records

corrected to reflect that the reason for his discharge was a perrnanent physical disability. Id. at

000040. The ABCMR denied his application on September 1,2004, noting that plaintiff was

"discharged at his own request because ofa medical condition oflong standing" and that "[t]he

character of the discharge [was] commensurate with the reason for the discharge." Id. at 000037,

000041 .

B. ProceduralBackground

Following the 2004 dismissal of his claim by the ABCMR, plaintiff began filing a series

of federal lawsuits. On October 7, 2009, plaintiff filed his first suit in this court. See Listwa v.

United States, No. 09-676C. On February 23,2010, the undersigned granted plaintiff s motion

to voluntarily dismiss the case. Id. Before the case was dismissed, on January 13,2010, plaintiff

filed a second suit in this court. See Listwa v. United States, No. l0-27C. One month later, on

February 23,2010, the undersigned again granted plaintiff s motion to voluntarily dismiss the

case. !!. Plaintiffs third suit in this court was filed shortly thereafter, on April 15,2010. See

Listwa v. United States, No. 10-241C. And for a third time, the undersigned granted, on llu1y 27 ,

2010, plaintiff s motion to voluntarily dismiss the case. Id. Plaintiff filed his fourth suit in this

court on January 19, 2012. See Listwa v. United States, No. 12-40C. Later that same year, on

July 19,2012, the Honorable Lawrence J. Block granted defendant's motion to dismiss the case

for lack ofjurisdiction. Id. Over three years passed before plaintiff filed, on October2,20l5,

his fifth suit in this court-the instant action. Five days later, plaintiff filed his sixth suit in this

court. See Listwav. United States, No. 15-1157C. Nine days later, on October 16,2015, the

Honorable Thomas C. Wheeler sua sponte dismissed plaintiff s sixth complaint on the ground

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that it was substantially alike in all material respects to the fifth complaint-the instant action.

Id,

In addition to the six suits filed in this court, on February 9,2009, plaintiff filed a claim

in the United States District Court for the Eastem District of Perursylvania. See Listwa v. Dep't

Veterans Affairs, No. 09-510. One year later, on February 8,2010, the Honorable Jan E. Dubois

granted plaintiff s motion to voluntarily dismiss the complaint. Id.

C. The Instant Action

Plaintiffs first complaint in the case at bar was filed on October 2,2015. ThaI same day,

he filed a motion to proceed in forma pauperis. On October 15,2015, plaintiff filed a motion for

a refenal to the "Pro Bono/Attorney Referral Pilot Program." On October 16, 2015, the court

directed the clerk to place the complaint and its accompanying exhibits under seal because they

contained personally identifing information. The court also ordered plaintiff to refile his

complaint, which he did on October 22,2015. On October 21, 2015, plaintilTmoved for a mini-

trial and on Oclober 22,2015, plaintiff filed an amended complaint, which contained identical

averments to the first complaint but included additional exhibits. On November 3,2015, the

court granted plaintiff s motion to withdraw the request for a mini-trial. On October 26,2015,

plaintiff sought leave to present a question to the court regarding the accrual date of his clarms

for statute of limitations purposes. The coun did not accept the frling and on October 30, 201 5,

the court directed the clerk to retum the submission to the plaintiff.

On November 25, 2015, defendant moved for an extension of time until Januuy 7 ,2016

to file its answer to the amended complaint, which was granted by the clerk that same day. On

January 7 ,2015, instead of filing its answer, defendant moved to dismiss the case. Plaintiff filed

two responses to the motion---one on January 19,2016 and one on January 20, 2016. Then, on

January 2l and January 22,2016, plaintifffiled notices concerning the date by which defendant's

answer to the complaint was due. On February 2,2016, defendant filed its reply in support of its

motion to dismiss and a response to plaintiff s filings regarding the date the answer was due.

On February 5, 201 6, plaintiff filed a motion to compel the production of documents.

That same day, the court denied plaintiff s motion and noted that it was premature given the

pending motion to dismiss. Three days later, plaintiff filed an unsolicited status report. On

February 12,2016, the court issued an order directing the clerk to retum three documents to

plaintiff on the ground that they were premature discovery requests. The court also precluded

plaintiff from filing any additional documents without first obtaining the court's permission.

Finally, on May 5, 2016, the court directed defendant to clarify for the court whether its motion

to dismiss, which was filed January 7,2016, was directed at the first complaint or whether

defendant meant to reference plaintiffs amended complaint. On May 20,2016, delendant filed

its response to the court's order-indicating that it intended to reference plaintilf s amended

complaint-and the court now proceeds with consideration of the merits of defendant's ripe

motion to dismiss.

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II. DISCUSSION

A, Standard of Review

The plaintiffbears the burden ofproving, by a preponderance of the evidence, that the

court possesses subject matter jurisdiction. Lujan v. Defs. of Wildlife, 504 U.S. 555,561 (1992);

McNutt v. Gen. Motors Acceptance Com., 298 U.S. 178, 189 (1936); Brandt v. United States,

710 F.3d 1369,1373 (Fed. Cir. 2013); Reynolds v. Army & Air Force Exch. Serv.,846F.2d746,

748 (Fed. Cir. I 988). The plaintiff cannot rely solely on allegations in the complaint, but must

bring forth relevant, adequate proof to establish jurisdiction. See McNutt, 298 U.S. at 1 89.

A party may move to dismiss a case for lack of subject matter jurisdiction pursuant to

RCFC l2(bXl). When considering such a motion, the court accepts as true all undisputed

factual allegations made by the nonmoving party, and draws all reasonable inferences from those

facts in the nonmoving party's favor. Westlands Water Dist. v. United States, 109 Fed. Cl. 177,

190 (2013). Whether the court has jurisdiction to decide the merits of a case is a threshold

matter. SeeSteelCo.v. Citizens for a Better Env't, 523 U.S.83,94-95 (1998). "Without

jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law,

and when it ceases to exist, the only function remaining to the court is that of announcing the fact

and dismissing the cause." Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). Thus, the

parties, or the court sua sponte, may challenge the existence ofsubject matter jurisdiction at any

time. Arbaugh v. Y & H Com., 546 U.S. 500, 506 (2006). Ultimately, if the court finds that it

lacks subject matter jurisdiction, then it must dismiss the claim. Matthews v. Unitcd States,72

Fed. CL.274,278 (2006); see also RCFC 12(hX3) ("lfthe court determines at any time that it

lacks subject-matter jurisdiction, the court must dismiss the action.").

B. Analysis

l. The Tucker Act

The ability of the Court ofFederal Claims to entertain suits against the United States is

limited: "The United States, as sovereign, is immune from suit save as it consents to be sued."

United States v. Sherwood, 312 U.S. 584, 586 (1941). A waiver of immunity "cannot be implied

but must be unequivocally expressed." United States v. Kine, 3 95 U. S. | , 4 (1969). The Tucker

Act, the principal statute goveming the jurisdiction ofthis court, waives sovereign immunity for

claims against the United States not sounding in tort that are founded upon the Constitution, a

federal statute or regulation, or an express or implied contract with the United States. 28 U.S.C.

$ l49l (2012). However, the Tucker Act is merely ajurisdictional statute and "does not create

any substantive right enforceable against the United States for money damages." United States

v. Testan,424U.5.392,398 (1976). Instead, the substantive right must appear in another source

of law, such as a "money-mandating constitutional provision, statute or regulation that has been

violated, or an express or implied contract with the United States." Loveladies Harbor. Inc. v.

United States, 27 F.3d 1545, 1554 (Fed. Cir. 1994) (en banc).

The gravamen of plaintiff s amended complaint is that he was unlawfully discharged

from the Army in 1966. Compl. fl 4. Specifically, plaintiff claims that his Request for

Discharge, DA Form 1049 was forged. Id. tl 5. According to plaintiff, "[a]t no time did [he]

ever request a discharge or sign a Request for Discharge." Id. fl 9. Plaintiff further claims "that

he should have received a medical Discharge with a Service Connected Disability." Id. at 3.

Because plaintiff claims to have been unlawfully discharged from the Army and because he also

seeks to have the reason for his discharge from the military changed to reflect that it was related

to a disability, his suit can be viewed either as one for unlawful discharge or one for military

disabilitypay.r"Inthecontextofmilitarydischargecases,theapplicable'money-mandating'

statute that is generally invoked is the Military Pay Act, 37 U.S.C. $ 204." Maninez v. United

Stares,333 F.3d1295,1303 (Fed. Cir.2003). Claims for military disability pay are also

govemed by a money-mandating statute, found at l0 U.S.C. $ l20l (2012). See Fisherv. United

States, 402 F.3d 1 167, 117 4-7 5 (Fed. Cir. 2005); Chambers v. United States , 417 F .3d 1218,

1223 (Fed. Cir.2005). Thus, under either scenario, plaintiffhas identified two money-mandating

statutes for purposes of the Tucker Act. Nevertheless, as discussed below, the court lacks subject

matter jurisdiction over his claims.

2. Plaintiff s Claims Are Barred by the Statute Of Limitations

Under the Tucker Act, "[e]very claim of which the United States Court of Federal Claims

has jurisdiction shall be baned unless the petition thereon is filed within six years after such

claim first accrues." 28 U.S.C. $ 2501. "A cause of action cognizable in a Tucker Act suit

accrues as soon as all events have occuned that are necessary to enable the plaintiffto bring suit,

i.e., when 'all events have occurred to fix the Govemment's alleged liability, entitling the

claimant to demand payment and sue here for his money."' Martinez, 333 F.3d at 1303 (quoting

Naser Elec. Co. v. United States , 368 F .2d 847, 8 5 I ( 1966)); see also Ingrum v. United States,

560 F.3d I 3 I I, l3 14 (Fed. Cir. 2009) ("A claim first accrues when all the events have occurred

that fix the alleged liability of the govemment and entitle the claimant to institute an action."). If

a plaintiffdoes not file within the six-year period, he "loses all rights to sue for the loss ofpay

stemming from the challenged discharge." Maninez, 333 F.3d at 1304.

Unlawful discharge claims accrue at the time of the discharge. Id. at 1303; accord

Bowen v. United States,292 F.3d 1383, 1386 (Fed. Cir. 2002); Real v. United States,906 F.2d

1557,1560 (Fed. Cir. 1990). Thus, ifthis case is viewed as one for unlawful discharge, the

'l-he United Stares

' Court of Federal Claims ("Court of Federal Claims") holds pleadings

of a p19 se plaintiffto less stringent standards than pleadings filed by litigants represented by

counsel. Haines v. Kerner,404 U.S. 519,520 (1972). Courts have "strained [their] proper role

in adversary proceedings to the limit, searching . . . to see ifplaintiffhas a cause ofaction

somewhere displayed." Ruderer v. United States , 412 F.2d 1285, 1292 (Ct. Cl. 1969). Although

a gq se plaintiffs pleadings are held to a less stringent standard, such leniency "with respect to

mere formalities does not relieve the burden to meet jurisdictional requirements." Minehan v.

United States, 75 Fed. Cl. 249,253 (2007); see also Kelley v. Sec'y. U.S. Dep't of Labor, 812

F.2d 1378, 1380 (Fed. Cir. 1987) ("[A] court may not . . . take a liberal view of that jurisdictional

requirement and set a different rule for pgg se litigants only."); Bernard v. United States, 59 Fed.

Cl.497,499 (noting that ple se plaintiffs are not excused from satisfying j urisdictional

requirements), aff d, 98 F. App'x 860 (Fed. Cir. 2004). As the Court of Federal Claims stated in

Demes v. United States, 52 Fed. C]l.365,369 (2002), "[w]hile a court should be receptive to pro

se plaintilfs and assist them, justice is ill-served when ajurist crosses the line from finder of fact

to advocate."

statute of limilations on plaintiffs claim began to run on April 5, 1966. Therefore, plaintiffhad

six years, or until April 5,1972,to seek redress in this court. As a result of his failure to do so,

the court is now precluded from considering his unlawful discharge claim as it is untimely under

the Tucker Act's statute of limitations.

Disability retirement pay claims accme on the date the appropriate military board has

either acted or declined to act. Chambers, 417 F.3d at 1224; accord Friedman v. United States,

310 F.2d 381, 389 (1962); Furlone v. United States, 152 F. Supp. 238,240-41 (1957). Thus, if

this case is viewed as one for disability retirement pay, the statute of limitations on plaintiff s

claim began to run on September l, 2004, the date the ABCMR denied plaintiff s petition.

Therefore, plaintiffhad six years, or until September l, 2010, to seek redress in this court.

Again, as a result of his failure to file suit for disability retirement pay within the six-year period,

as prescribed by the Tucker Act, he cannot do so now.2

3. Plaintiff s IFP Application Will Be Granted

Finally, as noted above, plaintifffiled, concurrent with his original complaint, an

application to proceed in forma pauperis. Pursuant to section 1915 of title 28, courts ofthe

United States are permitted to waive filing fees and security under certain circumstances. See 28

U.S.C. $ l9l5(a)(1); see also Hayes v. United States, 71 Fed. Cl.366,366-67 (2006)

(concluding that 28 U.S.C. $ 1915(a)(1) applies to both prisoners and nonprisoners alike).

Plaintiffs wishing to proceed in forma pauperis must submit an affidavit that (l) lists all oftheir

assets, (2) declares that they are unable to pay the fees or give the security, and (3) states the

nature of the action and their belief that they are entitled to redress. 28 U.S.C. $ 1915(a)(l).

Here, plaintilfhas satisfied all three requirements. The court therefore grants plaintiffls

application and waives his filing fee.

III. CONCLUSION

As se1 forth above. Because plaintilf s claim lor wrongful discharge is barred by the

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

plaintiff's complaint for lack ofjurisdiction pursuant to RCFC l2(bXl). In addition, the court

GRANTS plaintift's IFP application and DENIES plaintiff s motion for a referral. Finally, the

court declines defendant's invitation to determine, at this point in time, whether plaintiffis a

vexatious litigant. The clerk is directed to enterjudgment accordingly and shall not award costs.

IT IS SO ORDERED.

' Although defendant also raises issue preclusion or collateral estoppel as a bar to

plaintiff s claim, because the court concludes that plaintiffs claim is baned by the Tucker Act's

six-year statute of limitations, it need not address that argument.