Kelly v. United States

Um'ted States Court of Federal Claims

No. 18-1254

Filed: December 20, 2018

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RONALD R. KELLY, )

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Plaintiff, )

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v. )

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THE UNITED STATES, )

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Defendant. )

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OPINION AND ORDER

SMITH, Senior Judge

On August 20, 2018, Plaintiff Ronald R. Kelly (“l\/lr. Kelly”), proceeding pro se,

submitted his Compiaint to this Court seeking the amendment of his military records “to reflect a

General Discharge.” Complaint (hereinafter “Compl.”) at 2. Piaintiff seeks this status because

“the military unknowingly contributed in part to [l\/Ir. Kelly’s] predisposed Native American . . .

historically induced [poSt-traumatic stress disorder] that Was the cause of [Mr. Keliy’s] atypical

behavior” vvhich led to his discharge under, as he states, “Other Than Honorable Conditions.”

]d. The defendant filed its Motion to Dismiss on Novernber 1, 2018, arguing that the statute of

limitations bars Mr. Kelly’s claims For the reasons set forth belovv, the Court grants defendant’s

Motion.

I. Background

Plaintiff served in the Unitecl States Marine Corps from February 1968 through January

1970. See Plaintiff’s Exhibit (hereinafter “Pl.’s EX.”) l at 12. Plaintiff completed initial recruit

training without incident Beginning in Aprii 1968, however, Mr. Kelly Was repeatedly absent

Without leave. Ia’. at 4. Plaintiff states that a recruiter promised that plaintiff would become _a

heavy equipment operator. Id. at 14. When plaintiff Was instead assigned to administrative clerk

school, he began taking unauthorized absences from duty. Id.

AS a result, Mr. Kelly Was convicted by a court martial of three unauthorized absences

totaling 184 days, and, on April 8, 1969, plaintiff Was sentenced to six months’ hard labor. Id. at

l4. On August l, 1969, Plaintiff was released from confinement, and on August 22, 1969, the

Navy Court of Military Review affirmed the sentence of the court martial. Pl.’s Ex. at l5. On

January 19, 1970, plaintiff Was given a “bad conduct discharge” from the United States Marine

Corps. Id. Since his discharge, Mr. Kelly has unsuccessfully petitioned the Department of the

Navy’s Board for Correction of Naval Records (“Board”) on February 20, 1974 and on July 31,

i979 for his discharge status to be upgraded. Id. at 5. The Board further denied plaintiffs

requests for reconsideration on July 28, 1983, and on February il, 1992. Id.

In his Complaint, Mr. Keily argues that his records should be amended to reflect an

“Generai Discharge” due to his Native American ancestry. Compl. at 4. In support of his claim,

plaintiff states, “no Native Arnerican, in the past and present, under any military circumstance,

should receive anything less than a non~cornpensatory General Discharge” because the Navy has

not implemented “decolonizing therapies.” Id. at 2-3. Piaintiff posits that the “decolonizing

solutions” that would have prevented his unauthorized absences included allowing Mr. Kelly to

choose his own assignments Id. at 3. l\/lr. Kelly faults the Navy for his unauthorized absences,

highlighting the Navy’s failure to realize that “there was a traumatically~embedded[j

underlying[] reason why Plaintiff was insisting on the heavy equipment training,” and that failing

to allow him into that program constituted “further collective oppression of an lndian.” Ia’. ln

his Complaint, plaintiff requests relief in the form of “a non~cornpensatory change in record to

General Discharge under 10 U.S.C. § 1553.” Id. at i.

Plaintiff submitted his Cornplaint on August 20, 2018. The defendant fried its Motion to

Dismiss on November l, 20l 8, arguing that the statute of limitations bars Mr. Kelly’s claims.

See generally Motion to Dismiss. On November 14, 20l8, Mr. Keily filed his Response,

acknowledging that the statute of limitations applies, but asserting that his claims were only

discoverable within the last six years. See generally Plaintiff’s Response to Motion to Dismiss

(hereinafter “Pl.’s Resp.”). On November 28, 2018, the government filed its Reply in support of

its Motion to Dismiss. See generally Defendant’s Reply, The motion is now fully briefed and

ripe for review.

II. Standard of Review

rl"his Court’s jurisdictional grant is primarily defined by the Tucker Act, which provides

this Court the power “to render any judgment upon 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 . . . in cases not

sounding in tort.” 28 U.S.C. § l49l(a)(l). Aithough the Tueker Act expressly waives the

sovereign immunity of the United States against such claims, it “does not create any substantive

right enforceable against the United States for money damages.” United States v. Testan, 424

U.S. 392, 398 (1976). Rather, in order to fall within the scope of 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 banc in relevant part).

“Courts have an independent obligation to determine whether subject-matter jurisdiction

exists . . .” Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). If the Court lacks jurisdiction, it

cannot proceed With the action and must dismiss the case. Arbaugh v. Y&H Corp., 546 U.S. 500,

514 (2006). Ruie l2(h)(3) of the Rules of the United States Court of Federal Claims (“RCFC”)

provides: “if the court determines at any time that it lacks subject-matter jurisdiction, the court

must dismiss the action.” Pleadings from pro se plaintiffs are held to more lenient standards than

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pleadings drafted by lawyersl Hughes v. Rowe, 449 U.S. 5, 9 (1980); see also Ericlcson v.

Pardus, 551 U.S. 89, 94 (2007). “This leniency, however, does not extend to saving a complaint

that lies outside of this Court’s jurisdiction . . . Pro se or not, the plaintiff still has the burden of

establishing by a preponderance of the evidence that this Court has jurisdiction over its claims.”

Conerly v. United States, 137 Fed. Cl. 140, 142 (2018).

III. Discussion

In his Cornplaint, plaintiff fails to state a claim over which this Court has jurisdiction

Mr. Kelly appears to seek a writ of mandamus compelling the government to alter or amend his

military records. However, writs of mandamus are a non-monetary form of relief that this Court

lacks jurisdiction to issue. See 28 U.S.C. § 1361 (“The district courts shall have original

jurisdiction of any action in the nature of mandamus.”). To the extent that plaintiff seeks judicial

review of the Department of the Navy’s Board for Correction of Naval Records’ decision, this

Court cannot review the case because it lacks jurisdiction under the Adrninistrative Procedure

Act (“APA”) to order the non-monetary relief requested Martfnez v. United States, 333 F.3d

1295, 1313 (Fed. Cir. 2003) (“[T]he Court of Federal Claims lacks APA jurisdiction.”); Schmia't

v. United States, 3 Cl. Ct. 190, 194 (1983) (transferring a record correction case brought under

10 U.S.C. § 1553 because the Court of Federal Claims lacked jurisdiction to order APA,

non-monetary relief).

Additionally, the date of Mr. Kelly’s discharge precludes this Court from hearing his

claim. 1\/1r. Kelly’s discharge was nearly fifty years ago, and, therefore, is beyond this Court’s

six-year statute of limitations 28 U.S.C. § 2501. The Court of Federal Clairns’ statutorily-

prescribed statute of limitations is jurisdictional in nature, and is not subject to equitable tolling.

See Jol'm R. Sana' & Gravel Co. v. United States, 552 U.S. 130, 136 (2008). Plaintiff`s citations

to the observations of a licensed clinical social worker in 2017 and to 2015 research concerning

substance abuse in Native American communities do not “disclose[] the existence of a claim of

which he was previously unaware.” Marn`nez v. United Srares, 333 F.3d 1295, 1319 (Fed. Cir.

2003). Instead, those items simply provide plaintiff with “additional ammunition with which to

pursue the claim” of wrongful discharge Id. Mr. Kelly knew of his discharge in 1970 and

acknowledges that the statute of limitations has run on any claim that his discharge was

wrongfull Pl.’s Resp. at 1. As such, the Court cannot adjudicate plaintiffs wrongful discharge

claim.

II. Conclusion

For the reasons set forth above, defendant’s MOTION to Dismiss is GRANTED, and

this case is dismissed without prejudice under RCFC 12(b)(1), (h)(3). The Clerk is directed to

enter judgment in favor of defendant, consistent with this opinion.

gl///~' %j%/

Loren A. Smith, Senior Judge

IT IS SO ORDERED.

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