Cockerham v. United States

JJn tbe Wniteb $tates QCourt of jfeberal QClaitns

No. 18-46C

(Filed: October 4, 2018)

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JOHN L. COCKERHAM, JR., ) Military retirement claim; 10 U.S.C §

) 391 l(a); statute oflimitations; 28 U.S.C. §

Plaintiff, ) 2501; tolling provision of 10 U.S.C. § 843(f);

) whistleblower claim; 10 U.S.C. § 1034, 5

v. ) U.S.C. § 2302(b)

)

UNITED STATES, )

)

Defendant. )

)

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John L. Cockerham, Jr., prose, Inez, TX.

Daniel S. Herzfeld, Trial Attorney, Commercial Litigation Branch, Civil Division, United

States Department of Justice, Washington, D.C., for defendant. With him on the briefs were

Chad A. Readler, Acting Deputy Assistant Attorney General, Civil Division, Robert E.

Kirschman, Jr., Director, and Deborah A. Bynum and Steven J. Gillingham, Assistant Directors,

Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington,

D.C., and Major Michael Townsend, Litigation Attorney, U.S. Army Legal Services Agency.

OPINION AND ORDER

LETTOW, Senior Judge.

Plaintiff John Cockerham has brought suit seeking military retirement benefits and an

award of funds recovered as a result of his whistleblowing action on military acquisition bribery

schemes that occurred from 2002 to 2006. Mr. Cockerham was serving in the Army with the

rank of Major when he was discharged in 2010 after 18.5 years of service time creditable

towards retirement. The Army had denied his request to retire after an Army board of inquiry

recommended an "other than honorable" discharge due to official misconduct.

The United States (the "government") has moved to dismiss the complaint pursuant to

Rules 12(b)(l) and 52.l(c) of the Rules of the Court of Federal Claims ("RCFC"). Def.'s Mot.

to Dismiss or, Alternatively, Mot. for Judgment on the Admin. R. ("Def. 's Mot.") at 1, ECF No.

7017 2620 0000 7637 4402

17. The government argues that this court lacks subject-matter jurisdiction over the complaint,

and alternatively seeks judgment on the administrative record. 1

The court does not have subject-matter jurisdiction over Mr. Cockerham's claims.

Accordingly, the government's motion to dismiss is GRANTED. Because the court lacks

jurisdiction to hear the case, the court does not address the government's motion for judgment on

the administrative record.

BACKGROUND

Mr. Cockerham enlisted in the A1my in August 1984 and served on active duty for

approximately five years. AR 391. He then served in the Army Reserve and Army National

Guard until December 1993, AR 391, when he was commissioned as an officer and returned to

active duty, AR 296. He was promoted to the rank of Major on October 1, 2004. AR 296. Mr.

Cockerham served on active duty until January 2010, which service included two tours totaling

more than three years in Kuwait as a contracting officer. AR 296.

While serving as a contracting officer in Kuwait, Mr. Cockerham, his wife, and his sister

accepted money from contractors doing business with the Army. AR 3, 44, 110-22, 127, 160-62.

Mr. Cockerham claims that when he initially deployed to Kuwait from 2002 to 2003, the

contracting environment was "corrupt" and that "he fought it for some time," but that "the more

[he] fought it the more ofan outcast [he] became and the more privileges that [he] lost." AR 44.

He therefore began to "accept any and all acts of appreciation an[ d] unauthorized gratuities" and

claimed to use the money for charitable purposes. AR 44. When he returned to Kuwait from

2004 to 2005, Mr. Cockerham stated it was "more corrupt than before." AR 46. He claims to

again have reported the corruption to his superiors only to find out that they were "part of the

corruption." AR 46. These superiors then retaliated against him by revoking his contracting

authority, reviewing his contracting decisions, taking away his office and vehicle, and placing

him under the supervision of a more junior officer. AR 46. He concedes he then succumbed to

the pressure and began receiving "appreciation gifts" and "a few incentive bribes," again stating

he used the money for charitable purposes. AR 46-4 7.

In December 2006, federal officers searched Mr. Cockerham's home and found

incriminating evidence of procurement corruption. AR 47. He claims that he then started to help

the government in their c01ruption investigation, especially after the suicide of two other

contracting officers who were under investigation. AR 47-48. His cooperation eventually

"stal[l]ed" because of a "miscommunication due to [his] lack of understanding of how the DOJ

operates," but resumed following his arrest in July 2007. AR 48.

On July 21, 2007, Mr. Cockerham was aiTested by civil authorities. AR 281. He was

charged by federal civilian prosecutors with three counts of conspiracy and three of bribery, all

1

The Administrative Record was filed on August 24, 2018, ECF No. 16. It is

consecutively paginated, and particular po1tions of the record will be cited by page as "AR ."

2

relating to corrupt acts performed as a contracting officer for the Army. AR 112-21. Mr.

Cockerham pied guilty in federal comi on February I, 2008, to one count each of conspiracy,

bribery, and conspiracy to commit money laundering. AR 127,141,281. He was sentenced on

December 15, 2009, by a federal district comi in Texas to 17.5 years in federal prison and to pay

$9.6 million in restitution. AR 4, 9. 2

The Army initiated discharge procedures on December 2, 2008, while Mr. Cockerham

remained confined by civilian authorities and after his guilty plea but prior to sentencing. AR

I 02-04, 288. Mr. Cockerham then petitioned the Army on January 15, 2009, to allow him to

retire voluntarily, arguing that he met the minimum 20 years of active service required for an

active-duty retirement. AR 288. The Army rejected his request on January 22, 2009, deciding

that he had insufficient service time, on the basis that, pursuant to 10 U.S.C. § 972(b),

confinement by civilian authorities is not counted in computing an officer's length of service

towards voluntary retirement. AR 287. At the time of his apprehension and incarce1iion, Mr.

Cockerham had accrued 18 years, 6 months, and 26 days of active military service. AR 393-94.

Simultaneously with the rejection of his retirement request, the Army referred Mr. Cockerham to

a board of officers to show cause for retention. AR 286-87.

A board of officers convened on February 27, 2009, and found that Mr. Cockerham's

actions constituted "misconduct and moral and professional dereliction." AR 69, 71, 74. The

board recommended involuntary separation with an adverse "other than honorable" discharge.

AR 74. A board of review convened by the Army on August 5, 2009, to review this

recommendation concurred with involuntary separation with an "other than honorable"

discharge. AR 12, 14. The Army approved the findings on December 22, 2009, and ordered that

Mr. Cockerham be discharged within 30 days. AR 1-2. The Army discharged Mr. Cockerham

on January 12, 2010. AR 294. Mr. Cockerham remains confined in prison through July 2024

and has paid the $9.6 million in restitution. Suppl. Comp!. at 2, ECF No. 10.

Mr. Cockerham filed suit on January 5, 2018, seeking militaiy retirement benefits and up

to 20% of funds recovered as a result of his "[w]histleblowing and cooperation" with the

government's Army contracting corrnption investigation. Comp!. at I (citing the Military

Whistleblower Protection Act, 10 U.S.C. § 1034, and a whistleblower provision of the Civil

Service Reform Act, 5 U.S.C. § 2302). He also requests damages for alleged retaliation

perpetrated by fellow soldiers as a result of his whistleblowing. Comp!. at 1. Lastly, Mr.

Cockerham seeks attorneys' fees and trial costs under 28 U.S.C. § 1927, which permits recovery

if opposing counsel "multiplies the proceedings ... unreasonably and vexatiously." Comp!. at 1.

2 Mr. Cockerham was neither apprehended nor held by the military, nor was he prosecuted

in a military comi-martial.

3

STANDARDS FOR DECISION

A. Subject-Matter Jurisdiction

The Tucker Act provides this court with jurisdiction over "any claim against the United

States founded either upon the Constitution, or any Act of Congress or any regulation of an

executive department, or upon any express or implied contract with the United States, or for

liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(l). The

Tucker Act does not, however, provide a plaintiff with any substantive rights. United States v.

Tes tan, 424 U.S. 392, 398 (1976). To establish this court's jurisdiction under the Tucker Act, "a

plaintiff must identify a separate source of substantive law that creates the right to money

damages." Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane in relevant

part) (citing United States v. Mitchell, 463 U.S. 206,216 (1983); Testan, 424 U.S. at 398). Ifa

plaintiff fails to raise a claim under a money-mandating provision, this court "lacks jurisdiction,

and the dismissal should be for lack of subject matter jurisdiction." Jan's Helicopter Serv., Inc.

v. Federal Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cty. v.

United States, 487 F.3d 871, 876 (Fed. Cir. 2007)).

A claim in this court is "barred unless the petition thereon is filed within six years after

such claim first accrues." 28 U.S.C. § 2501. The six-year statute of limitations specified in

Section 2501 is jurisdictional and is not susceptible to equitable tolling or any of the other

doctrines that would excuse an untimely claim. John R. Sand & Gravel Co. v. United States, 552

U.S. 130, 134 (2008).

Mr. Cockerham, as plaintiff, must establish jurisdiction by a preponderance of the

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

(citing Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)). When

ruling on the government's motion to dismiss for lack of jurisdiction, the comi must "accept as

true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable inferences

in favor of the plaintiff." Id. at 1163 (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir.

1995)). "If a court lacks jurisdiction to decide the merits of a case, dismissal is required as a

matter of law." Gray v. United States, 69 Fed. CL 95, 98 (2005) (citing Ex parte McCardle, 74

U.S. (7 Wall.) 506,514 (1868); Thoenv. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985));

RCFC 12(h)(3) ("If the comi determines at any time that it lacks subject-matter jurisdiction, the

court must dismiss the action."). 3

3A court may "grant the pro se litigant leeway on procedural matters, such as pleading

requirements." McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir. 2007) (citing

Hughes v. Rowe, 449 U.S. 5, 9 (1980) ("An unrepresented litigant should not be punished for his

failure to recognize subtle factual or legal deficiencies in his claims.")). But, this leniency

cannot extend to jurisdictional requirements. See Kelley v. Secretary, United States Dep 't of

Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987).

4

B. Rule 52. I (c) - Judgment on the Administrative Record

In addressing military pay claims, the court reviews the pertinent decision of the military

service to "determine if it is arbitrary, capricious, contrary to law, or unsupported by substantial

evidence." Roth v. United States, 378 F.3d 1371, 1381 (Fed. Cir. 2004) (citing Heisig v. United

States, 719 F.2d 1153, 1156 (Fed. Cir. 1983)); accord Melendez Camilo v. United States, 642

F.3d 1040, 1044 (Fed. Cir. 2011). The arbitrary and capricious standard "requires a reviewing

court to sustain an action evincing rational reasoning and consideration of relevant factors."

Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000).

ANALYSIS

I. Subject-Matter Jurisdiction

A. Accrual of the Retirement Claim

The government argues that Mr. Cockerham's retirement claim is time-barred by the

statute of limitations, contending that his claim accrued on January 12, 2010, the date of Mr.

Cockerham's discharge from the Army. Def.'s Mot. at 7-9. Ifso, that claim would be time-

barred as of January 2016.

A claim in this couti must be brought within six years of accrual. 28 U.S.C. § 2501. "A

cause of action cognizable in a Tucker Act suit accrues as soon as all events have occurred that

are necessary to enable the plaintiff to bring suit, i.e., when 'all events have occurred to fix the

[g]overnment's alleged liability."' Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir.

2003) (quoting Nager Elec. Co. v. United States, 368 F.2d 847, 851 (Ct. CL 1966)). In "a

military pay case seeking retirement pay, the applicable start date for accrual of the statute of

limitations ... is the date of[] actual discharge," Levy v. United States, 83 Fed. CL 67, 74

(2008), and the claim accrues "all at once at the time of discharge," Bias v. United States, 722

Fed. Appx. 1009, 1012 (Fed. Cir. 2018) (quoting Martinez, 333 F.3d at 1303); see also

Chambers v. United States, 417 F.3d 1218, 1223-24 (Fed. Cir. 2005) (citing Martinez, 333 F.3d

at 1303).

Accordingly, Mr. Cockerham's claim for retirement benefits accrued on January 12,

2010, when the Army discharged him. Upon discharge, the Army prevented Mr. Cockerham

from serving the additional time necessary for him to retire and denied him the ability to retire

based on his accumulated time in service.

Mr. Cockerham cites, without discussion, the tolling provision of 10 U.S.C. § 843(f),

Comp!. at 1, which tolls the statute of limitations for crimes under the Unifo1m Code of Military

Justice while the United States is at war and for three years after cessation of hostilities. 10

U.S.C. § 843(f). The tolling provision applies to fraud against the United States or crimes related

to government procurement. 10 U.S.C. § 843(f). In the circumstances at hand, this tolling

provision is inapplicable. Subsection 834(f) applies only to statutes oflimitation applicable to

crimes under the Uniform Code of Military Justice, see 10 U.S.C. § 843(f) ("applicable to any

offense ut1der [the Uniform Code of Military Justice]"), and it allows the military additional time

5

to bring charges against alleged offenders. 4 It does not negate or modify the jurisdictional

bounds of this court established in 28 U.S.C. § 2501. Mr. Cockerham's claim for retirement

benefits does not implicate the Uniform Code of Military Justice. He was not convicted of a

crime under that Code or in a military court, but rather of crimes under the federal criminal code

in a federal civilian court. See AR 3 (federal conviction record).

Correlatively, the tolling provisions of28 U.S.C. § 2501 do not apply to Mr. Cockerham.

Those provisions toll the six-year statute oflimitations in this court for "a person under legal

disability or beyond the seas at the time the claim accrues." 28 U.S.C. § 2501 (third paragraph).

"Imprisonment is not a legal disability" that tolls Section 2501. Callahan v. United States, 56

Fed. Appx. 947, 948 (Fed. Cir. 2003) (per curiam) (quoting O 'Callahan v. United States, 451

F.2d 1390, 1393 (Ct. Cl. 1971)).

Nothing occmTed between discharge on January 12, 2010, when the retirement claim

accrued, and the filing of the complaint on January 5, 2018, that would toll the statute of

limitations. Mr. Cockerham's claim for his retirement benefits thus became non-justiciable

before this comt on January 12, 2016. See 28 U.S.C. § 2501; John R. Sand & Gravel Co., 552

U.S. at 134.

B. Claims for Retaliatory Treatment

Mr. Cockerham alleges that military personnel retaliated against him when he tried to

expose contracting corruption. Comp!. at 1; see also AR 46. Mr. Cockerham seeks damages for

the retaliatory treatment, citing 5 U.S.C. § 2302 and 10 U.S.C. § 1034. Comp!. at 1.

The government argues that the Military Whistleblower Protection Act, 10 U.S.C. §

1034, provides administrative remedies but does not create a private right of action for money

damages. Def.' s Mot. at 9. The government further argues that the Civil Service Reform Act

provision cited by Mr. Cockerham, 5 U.S.C. § 2302, excludes military members and that it is not

a money-mandating statute. Id. at 10.

This court lacks jurisdiction to hear claims arising under the Military Whistleblower

Protection Act. See, e.g., Bias, 722 Fed. Appx. at 1014. Mr. Cockerham's appeal to the

protection of civil service laws of Title 5 of the United States Code is also unavailing; as the

government notes, Title 5 is inapplicable to members of the armed forces. See 5 U.S.C. § 2101;

Def.' s Mot. at 9. At all times relevant to his retaliation claim, Mr. Cockerham was in the armed

forces. And finally, while the retaliation allegations may sound in to1t, this court cannot hear tort

claims. 28 U.S.C. § 149l(a)(l); see also, e.g., New Am. Shipbuilders, Inc. v. United States, 871

4The Uniform Code of Militaiy Justice allows the military to prosecute, criminally or

administratively, those subject to the Code. Subsection 834(f) extends the time within which the

militaiy may charge someone subject to the Code; the tolling provision thus pe1tains to causes of

action brought by, not against, the military.

6

F.2d 1077, 1079 (Fed. Cir. 1989). Therefore, this court lacks jurisdiction over these retaliation

claims even if they had been timely. 5

C. Claim for 20% of Funds Recovered

Mr. Cockerham seeks "up to 20% of all funds collected as a result of [his]

whistleblowing and cooperation." Comp!. at 1. Mr. Cockerham detailed his cooperation in a

filing before the Army's board of review, AR 43-50, claiming that his actions resulted in

recuperation of over $17 million and upwards of billions of dollars. AR 50. The government

has not responded specifically to this claim.

Mr. Cockerham cites no legal basis for either this claim or for this court's jurisdiction.

Mr. Cockerham did not bring suit as a qui tam plaintiff, and this comt lacks jurisdiction over qui

tam actions. See LeB/anc v. United States, 50 F.3d 1025, 1031 (Fed. Cir. 1995) ("qui tam suits

may only be heard in district courts") (citing 31 U.S.C. § 3732(a)); Giles v. United States, 72

Fed. CL 335, 336-37 (2006). The court is unaware of another legal basis for Mr. Cockerham to

bring such a claim in this or another court. 6

D. Liability for Excessive Costs under 28 US. C. § 1927

The government contends that Mr. Cockerham fails to supply a rationale for citing 28

U.S.C. § 1927 and fails to identify against whom he seeks sanctions. Def. 's Mot. at 11. Mr.

Cockerham does not specify the factual basis for his claim under Section 1927. Since Mr.

Cockerham makes this request in his complaint, see Comp I. at 1, it cannot be against counsel's

conduct in this case. Based on the administrative record available to this court, federal civilian

proceedings against Mr. Cockerham ended by December 15, 2009, when he was sentenced. AR

4. Military proceedings ended by January, 12, 2010, when he was discharged. AR 294. Any

claim under Section 1927 would have become time-barred in this court by the statute of

limitations no later than January 2016.

5

The alleged retaliation occurred sometime between summer of 2004 and December

2005, AR at 46-47, and any retaliation claim would have accrued by December 2005, see

Martinez, 333 F.3d at 1303 (quoting Nager Elec. Co., 368 F.2d at 851) ("[A] Tucker Act suit

accrues as soon as all events have occurred that are necessary to enable the plaintiff to bring

suit."). It may or may not have been tolled under the Servicemembers Civil Relief Act, 50

U.S.C. § 3936, until Mr. Cockerham's discharge on January 12, 2010. This claim thus became

non-justiciable in this comt no later than January 12, 2016.

6

Mr. Cockerham's whistleblowing occurred while he was a contracting officer and a

commissioned officer of the United States, i.e., while he had a duty to uphold the integrity of the

procurement process and to report illegal activities. His cooperation with the Department of

Justice occurred only after the government raided his house and found incriminating evidence.

AR 47-49. His cooperation enabled him to reach a plea agreement that dismissed half of the

charges against him. AR 127-142, 163. He was able to provide valuable cooperation partially

due to his own corrupt actions.

7

In any event, 28 U.S.C. § 1927 is not a waiver of sovereign immunity. See, e.g., In re

Graham, 981 F.2d 1135, I 140 (10th Cir. 1992) ("Even ifwe were to read the statute as

encompassing awards against the party . .. we would still require some independent waiver of

sovereign immunity in order to apply it against the United States.") (internal citations omitted);

Alexander v. Federal Bureau ofInvestigations, 541 F. Supp. 2d 274, 300-01 (D.D.C. 2008)

(holding that sanctions under Section 1927 cannot be made against the United States because

such sanctions are only available against attorneys, not parties). While the United States was a

party to the 2009 federal trial and the 20 IO military discharge proceeding, the provisions of

Section 1927 are not intended to sanction a party for conduct in a prior unrelated case. See

Barksdale v. United States, 582 Fed. Appx. 890 (Fed. Cir. 2014) (Mem.) (affirming a denial of

sanctions under RCFC 11 and 28 U.S.C. § 1927 where the plaintiffs "allegations related to

government actions in separate matters"); see also Alexander, 541 F. Supp. 2d at 304.

II. Judgment on the Administrative Record

The court does not reach the questions whether the Army properly discharged Mr.

Cockerham and denied his retirement request because the court lacks jurisdiction over his

discharge and retirement claims.

CONCLUSION

For the reasons stated, the court does not have jurisdiction over Mr. Cockerham's claims.

Accordingly, the government's motion to dismiss is GRANTED. The clerk shall enter judgment

according! y.

No costs.

It is so ORDERED.

6(/11~_

Charles F. Lettow

Senior Judge

8