Frederick v. United States

In the United States Court of Federal Claims

No.17-831C F|LED

(Flled: September 28, 2017) 559 2 8 2917

) us count oF

GREGORY DEVON FREDERICK, ) FEDERAL CLAI|V|S

)

Pro Se Plaintiff, ) Pro Se, Lack of Subject Matter

) Jurisdiction, Statute of Limitations

v. )

)

THEIH{HIH)STATES, )

)

Defendant. )

)

ORDER

FIRESTONE, Sem`or Judge.

Now pending before the court is defendant United States Navy’s motion to

dismiss, pursuant to Rule lZ(b)(l) of the Rules of the United States Court of F ederal

Claims (RCFC) the complaint filed by Mr. Gregory Devon Frederick on June l9, 2017.

The defendant United States Navy (“the government”) contends that the complaint filed

by Mr. Frederick is based on a variety of wrongs he allegedly suffered during his

enlistment in the Navy between Novernber 21, 1996 and February 20, 2001, when he was

issued a general (under honorable conditions) discharge from the Navy. 'I`he government

argues that because the claims accrued on the date of his discharge on February 20, 2001,

this action, filed more than 15 years after that date, is barred by the six-year statute of

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limitations set forth in 28 U.S.C. § 2501.1 The government further argues that this court

also lacks subject matter jurisdiction over Mr. Fredericl<’s complaint to the extent his

claims sound in tort or are based on alleged due process and civil rights violations.

Because the court does not have jurisdiction over Mr. Frederick’s claims, the court

GRANTS the government’s motion to dismiss

I. BACKGROUND FACTS 2

Mr. Frederick joined the United States Navy as a serviceman on Novernber Zl,

1996. Def.’s Mot. Dismiss 2; App. l. Mr. Frederick’s first duty station was on the USS

Patriot, where he received a positive performance evaluation Def.’s Mot. Dismiss 2;

App. 4. I-Ie received a promotion from a Seaman (E-3) to an Operations Specialist Third

Petty Officer (E-4) on December 21, 1997. Def.’s Mot. Dismiss 2. Mr. Fredericl<

received mostly positive performance evaluations during the remainder of his time

aboard the USS Patriot. Def.’s Mot. Dismiss 2; App. 4-13.

Mr. Frederick was transferred to the USS Crornrnelin on April 26, 2000. Def.’s

Mot. Dismiss 2; App. 14. While aboard the USS Crommelin, Mr. Fredericl< Was charged

with three violations of Article 91 of the Uniform Code of Military Justice (“UCMJ”)

l 28 U.S.C. § 2501 states that “{e]very claim of Which the United States Court of Federal

Claims has jurisdiction shall be barred unless the petition thereon is filed Within six years after

such claim first accrues.”

2 The facts contained in this section are derived from Mr. Frederick’s compiaint, the

government’s motion to dismiss, and the appendix. The government has attached an appendix to

its motion which includes l\/[r. Frederick’s Navy employment file, his performance reviews, and

the prior Navy Board decisions The court may look to evidence outside the complaint to

determine jurisdiction See Lcmd v. Doflar, 330 U.S. 731, 735 (1947).

(insubordinate conduct toward a warrant officer, non-commissioned officer, or petty

officer) 10 U.S.C. § 891; Def.’s Mot. Dismiss 3; App. 29-31. After these charges were

filed, the Navy began administrative separation processing of Mr. Fredericl< by reason of

“Misconduct ~ Cornrnission of a Serious Offense.” Def.’s Mot. Dismiss 3; App. 17-22.

l\/lr. Frederick was separated from the Navy on February 20, 2001. Def.’s Mot. Dismiss

3; App. 1, As noted above, his discharge was characterized as “general (under honorable

conditions).” Def.’s l\/iot. Dismiss 3; App. 1.

On April 28, 2005, Mr. Fredericl< sought to change his discharge status before the

Naval Discharge Review Board (“NDRB”). Def.’s Mot. Dismiss 3; App. 24~27. In his

application before the NDRB, Mr. Fredericl< requested that his general (under honorable

eonditions) discharge be upgraded to an “honorable characterization” so that he could

“gain access to [the] l\/iontgomery Gl Bill,” study at the university level, and receive

corrective surgery. Def.’s l\/lot, Dismiss 3; App. 24~27. The NDRB reviewed Mr.

Fredericl<’s application which was in the form of a letter that is essentially identical to

l\/Ir. Fredericl<’s current complaint Def.’s l\/lot. Dismiss 3; App. 25-26. The NDRB also

reviewed l\/lr. Fredericl<’s service record and other documents provided by Mr. Fredericl<,

including his medical records Def.’s Mot. Dismiss 3; App. 25-26; App. 31-32. On

October 26, 2005, the NDRB denied Mr. Fredericl<’s application to change his discharge

status Def.’s Mot. Dismiss 3 ; App. 23; App. 31-32. The NDRB determined that Mr.

Fredericl<’s original general (under honorable conditions) discharge status was proper.

Def.’s Mot. Dismiss 3; App. 23; App. 31-32.

In addition to seeking to change his discharge status before the NDRB, Mr.

Frederick also sought correction of his military record before the Board for the

Correction of Naval Records (“BCNR”). ln his request before the BCNR, Mr. Frederick

argued that he wanted to have his naval records corrected on account of “pain and

suffering from [a] medical procedure.” Def.’s Mot. Dismiss 4; App. 35-36. Mr.

Frederick provided the BCNR With a statement that is also nearly identical to the

complaint he filed in this court. Def.’s Mot. Dismiss 4;, App. 36. The BCNR denied l\/lr.

Frederick’s request to correct his record on August 21, 2006. Def.’s Mot. Dismiss 4;

App. 37-3 8. l\/lr. Frederick sought a reconsideration of the BCNR decision on September

4, 2009. Def.’s Mot. Dismiss 4; App. 39. The BCNR denied reconsideration on October

6, 2009. Def.’s Mot. Dismiss 4; App. 39.

l\/lore than 15 years after his discharge from the Navy and more than six years

after the BCNR’s last decision, l\/lr. Frederick filed his complaint in this court on J unc 19,

2017 seeking to redress his “grievance against [his] supervisors [ while in the Navy] in

attempt(s) to assuage [himself] of the malice that has been afflicted upon . . . [hiin].”

Pl.’s Comp. Speciiically, l\/lr. Frederick claims that he suffered the following “wrongs:”

l. The denial of my right to submit request documents and

gain response.

2. The denial of accesses to tools which are detrimental in

accomplishing my job in a timely and proficient manner.

3. The denial of my right to file rebuttals to negative

evaluations of my job performance

4. The denial of choice aspects of training which Would

enhance rate proficiency.

5. The wrongful seizure of personal items and the

exploitation of those items with the intent of inflicting

financial inadequacy

6. Subtle forms of harassment with the intent of poisoning

my morale.

7. The denial of key watch positions even after I have

ascertained the proper qualification

8. The denial of qualification documents which would

(rnandate) the right to hold higher positions and qualify

for advancement (immediately)

9. The denial of my right to file grievance documentation

10. The denial of medical treatment

ll.Violation of my privacy in the release of medical

documentation and the like which have contributed to a

hostile work environment

12. Outright conspiracy to sabotage my intentions to extend,

advance, and progress in my career.

Pl.’s Compl. l\/lr. Frederick does not seek any specific monetary or injunctive

relief in his complaint

The government filed its motion to dismiss on August 18, 2017. Def.’s l\/Iot.

Dismiss. As noted above, in its motion, the government argues that Mr. Frederick’s

complaint should be dismissed on the grounds that all of the claims are time~barred under

28 U.S.C. § 2501. The government also argues that to the extent Mr. Frederick’s claims

sound in tort or can be construed to involve due process or civil rights violations the

claims are outside the subject matter jurisdiction of this court. On September 13, 2017,

l\/lr. Fredericl< filed another version of his complaint in response to the government’s

motion. Pl.’s Resp.

II. LEGAL STANDARI)S

Whether the court has subject matter jurisdiction over a case is a threshold issue

that must be resolved in order for the case to proceed. Stee! Co. v. Citizensfor a Better

Env ’t, 523 U.S. 83, 94-95 (1998). The plaintiff bears the burden of proving that

jurisdiction exists based on a preponderance of the evidence Taylor v. United States,

303 F.3d 1357, 1359 (Fed. Cir. 2002) (citing Thomson v. Gaskill, 315 U.S. 442, 446

(1942) (stating “the plaintiff bears the burden of supporting the allegations by competent

proof.”)). Complaints submitted by pro se parties are held to “less stringent Standards”

than those completed by lawyers Hai'nes v. Kerner, 404 U.S. 519, 520 (1972).

Nonetheless, pro se plaintiffs still must satisfy jurisdictional requirements Heuss v.

United States, 78 Fed. Cl. 442, 444 (2007) (quoting Bernard v. United States, 59 Fed. Cl.

497, 499, aff’d, 98 Fed. Appx. 860 (Fed. Cir. 2004)).

As noted, under 28 U.S.C. § 2501, “[e]very claim of which the United States

Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed

within six years after such claim first accrues.” The six-year time bar on actions against

the United States is jurisdictional, because filing within the six-year period is a condition

of the waiver of sovereign immunity in the Court of Federal Claims under the Tucker Act

and must be strictly construed John R. Sand & Gravel Co. v. United Sfates, 552 U.S.

130, 136 (2007).

III. DISCUSSION

The government has moved to dismiss l\/Ir. Frederick’s complaint on the grounds

that his claims accrued more than six years before he filed this lawsuit and thus his action

is barred by the statute of limitations set in 28 U.S.C. § 2501, Def.’s Mot. Dismiss 6.

The court agrees lt is well-settled that claims relating to a military discharge accrue at

the time of discharge. See MacLean v. United Srates, 454 F.3d 1334, 1336 (Fed. Cir.

2006) (quoting Martinez v. United Staz‘es, 333 F.3d 1295, 1303 (Fed. Cir. 2003)). Here

l\/lr. Frederick was discharged from the Navy on February 20, 2001. Def.’s Mot. Dismiss

3; App. 1. Thus Mr. Frederick had until February 20, 2007 to challenge his discharge

before this court. Because Mr. Frederick filed his complaint with this court on June 19,

2017, more than fifteen years after his discharge his complaint is time-barred under 28

U.S.C. § 2501.

ln addition to his complaint being time-barred, the court also agrees with the

government that this court does not have subject matter jurisdiction over Mr. Frederick’s

claims in any case. Mr. Frederick’s complaint focuses on the Navy’s alleged

mistreatment of him while on active duty. Although it is difficult to characterize the legal

nature of his ciaims, it does appear that the majority either sound in tort or involve

possible due process or civil rights violations As the government correctly argues, these

types of claims are outside this court’s subject matter jurisdiction This court does not

have jurisdiction over claims sounding in tort. Shearin v. United States, 992 F.2d 1195,

1197 (Fed. Cir. 1993). “['l`]he Tucker Act explicitly excludes tort claims against the

United States from this court’s jurisdiction.” Rothing v. United States, l32 Fed. Cl. 387,

390 (2017). ln addition, this court lacks jurisdiction over claims based on due process

and civil rights violations The Federal Circuit in LeBlanc v. United States, 50 F.3d 1025,

1028 (Fed. Cir. 1995) made plain that the Court of Federal Claims does not have

jurisdiction over allegations of violations of the Due Process Clause of the Fifth and

Fourteenth Amendments because they do not “mandate payment of money by the

government.” lt is also well-settled that this court does not have jurisdiction over civil

rights claims Rather, federal district courts have “original jurisdiction” to hear those

claims See 28 U.S.C. § 1343. See also Taylor v. United States, 666 Fed. Appx. 896, 897

n.l (Fed. Cir. 2016) (“Congress has authorized federal district courts to hear such claims,

28 U.S.C. § 1343(a), but has granted no such authority to the Court of Federal Claims.”)

CONCLUSION

For the above-stated reasons, the government’s motion to dismiss for lack of

jurisdiction is GRANTED. The clerk shall enter judgment accordingly. No costs

IT IS SO ORDEREI).

l NANOYB. FIREsToNE

Senior Judge