Langan v. United States

3Jn toe Wniteb ~tatrs <!Court of jfrberal Oaims

Pro Se

No.17-1446

{Filed: June 11, 2019)

) Keywords: Military Pay; Voluntary

CHRISTOPHER P. LANGAN, ) Separation Pay; Tax Refund; Statute of

) Limitations; Motion to Reconsider;

Plaintiff, ) Motion for Relief from Judgment;

) Subject-Matter Jurisdiction

V. )

)

THE UNITED STATES OF AMERICA, )

)

Defendant. )

)

--------------)

Christopher P. Langan, Goshen, NY, prose,

Andrew William Lamb, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.

Department of Justice, Washington, DC, with whom were Annie W .Morgan, Major, U.S. Air

Force, Steven J Gillingham, Assistant Director, Robert E. Kirschman, Jr., Director, and Joseph

H Hunt, Assistant Attorney General, for Defendant

OPINION AND ORDER

KAPLAN, Judge.

The prose plaintiff in this case is Christopher P. Langan, a former captain in the United

States Air Force. He filed this action on October 2, 2017, asserting a variety of claims for

monetary and other relief arising out of his service in-and separation from-the Air Force. The

ease is currently before the Court on Mr. Langan's motion for reconsideration and/or motion for

relief from judgment under Rules 59 and 60(b) of the Rules of the Court of Federal Claims

("RCFC"),

Mr. Langan seeks reconsideration of or other relief from a November 20, 2018 decision

issued by Judge Susan Braden. In that decision, Judge Braden dismissed the majority of the

claims in Mr. Langan's complaint for lack ofjllrisdiction. The dismissed claims included: claims

against defendants other than the United States; claims under the Military Whistleblower

Protection Act ("MWPA"), l OU.S.C. § I 034, and the Uniformed Services Employment and

Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301 et seq,; requests for certain equitable

relief (including an order directing the Air Force to award him several medals for distinguished

service); a tax refund claim; a claim under the Military Pay Act, 37 U.S.C. § 204, seeking

disability retirement pay; and ch1ims that Mr. Langan was entitled to receive additional active

duty pay for the final months of his service.

On the other hand, Judge Braden concluded that the court did have jurisdiction over Mr.

Langan's claim that the Defense Finance and Accounting Service ("DFAS") had miscalculated

the amount of voluntary separation pay ("VSP") due to him. But other than correcting a minor

arithmetical error in the computation of his VSP-which resulted in partial judgment in the

amount of $2.72 for Mr. Langan-Judge Braden granted the government's motion for judgment

on the administrative record ("MJAR") as to that claim. Mem. Op. & Order ("Op."), ECF No.

34.

On December 26, 2018, Mr. Langan filed a motion to reconsider or for relief from

judgment. Pl. 's Mot. to Seek Review of J. ("Pl. 's Mot."), ECF No. 36. The next day, Judge

Braden issued an order directing the government to file a response to the motion. ECF No. 37.

The case was transferred to the undersigned on January 23, 2019. ECF No. 42. On February 28,

2019, the government filed its opposition to the motion. Def.'s Opp. to Pl.'s Mot. ("Gov't

Resp."), ECF No. 47.

For the reasons that follow, Mr. Langan's motion is GRANTED-IN-PART and

DENIED-IN-PART.

DISCUSSION

I. Standard of Review

RCFC 59 states that:

The court may, on motion, grant a new trial or a motion for reconsideration on all

or some of the issues-and to any pmiy-as follows: (A) for any reason for which

a new trial has heretofore been granted in an action at law in federal comi; (B) for

any reason for which a rehearing has heretofore been granted in a suit in equity in

federal couti; or (C) upon the showing of satisfactory evidence, cumulative or

otherwise, that any fraud, wrong, or injustice has been done to the United States.

RCFC 59(a)(l). The Federal Circuit has explained that under this rule "a court, in its discretion,

'may grant a motion for reconsideration when there has been an intervening change in the

controlling law, newly discovered evidence, or a need to correct clear factual or legal error or

prevent manifest injustice."' Biery v. United States, 818 F.3d 704, 711 (Fed. Cir. 2016) (quoting

Young v. United States, 94 Fed. Cl. 671,674 (2010)). "A motion for reconsideration under Rule

59(a) must be supported 'by a showing of extraordinary circumstances which justify relief."' Id.

(quoting Caldwell v. United States, 391 F.3d 1226, 1235 (Fed. Cir. 2004)).

Rule 60(b) similarly states that"[ o]n motion and just terms, the couti may relieve a party

or its legal representative from a final judgment, order, or proceeding for the following reasons:

(I) mistake, inadve1ience, surprise, or excusable neglect; ... or (6) any other reason that justifies

relief." "As a remedial provision, Rule 60(b) is to be 'liberally construed for the purpose of doing

substantial justice."' Patton v. Sec'y ofDep't of Health & Human Servs., 25 F.3d 1021, 1030

(Fed. Cir. 1994) (citing 7 James W. Moore & Jo Desha Lucas, Moore's Federal Practice

~ii 60.18[8], 60.19 (2d ed. 1993)). At the same time, "[t]he United States Supreme Court ... has

'cautioned that the Rule should only be applied in extraordinary circumstances."' Perry v. United

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States, 558 F. App'x 1004, 1006 (Fed. Cir. 2014) (quoting Liljeberg v. Health Servs. Acquisition

Corp., 486 U.S. 847,864 (1988)) (alterations omitted).

II. Mr. Langan's Motion

Although styled as a motion for reconsideration under RCFC 59(a)(l) and/or 60(b), a

substantial portion of Mr. Langan' s suppo1iing memorandum consists of a repetition of the

arguments previously presented when his case was before Judge Braden for decision on the

government's dispositive motions. It is well established that a motion for reconsideration is not a

vehicle for making the same arguments that have already been considered and resolved against

the movant in the original opinion. See Four Rivers Invs., Inc. v. United States, 78 Fed. Cl. 662,

664 (2007) (explaining that "motions for reconsideration are not intended to allow a party to

reassert arguments that the Comi already has considered") (citations omitted). The Comi,

therefore, will consider only those points set forth in Mr. Langan's motion which take direct

issue with the November 18, 2018 decision itself.

A. Dismissal of Military Pay Claims Based on Statute of Limitations

In his amended complaint, Mr. Langan sought an award ofbackpay under the Military

Pay Act, 37 U.S.C. § 204. He claimed, among other things, that he was entitled to be paid for six

days that he spent in jail in April and June of201 l and for some forty-five days between August

and September of 2011 when he took unpaid "excess leave," allegedly "under duress." Judge

Braden concluded that these claims were barred by the Tucker Act's six-year statute of

limitations. See 28 U.S.C. § 2501. Mr. Langan seeks reconsideration of this determination. Pl.'s

Mot. at 2-10.

The Comi agrees that this aspect of the decision merits reconsideration because its

conclusion was based on clear factual error. Claims for backpay accrue on the date that a service

member is discharged or separated from the service. See Martinez v. United States, 333 F.3d

1295, 1303 (Fed. Cir. 2003) (en bane). Mr. Langan's separation was effective October I, 2011.

Am. Comp!. at 31, ECF No. 11. The statute of limitations, accordingly, was set to expire on

October I, 2017, six years later. But the prior decision did not take account of the fact that

October I fell on a Sunday in 2017. Under RCFC 6, when "computing any time period specified

... in any statute that does not specify a method of computing time ... if the last day is a

Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that

is not a Saturday, Sunday, or legal holiday." Therefore, the six-year limitations period set forth in

28 U.S.C. § 250 I expired on Monday, October 2, 2017-the day Mr. Langan filed his complaint.

His claims for backpay were therefore not barred by the statute of limitations.

Nonetheless, on the merits, the Air Force Board for the C01Tection of Military Records'

("BCMR") decision rejecting ivlr. Langan's claims for backpay was neither arbitrary and

capricious, nor contrary to law. Therefore, on reconsideration, the Comi will vacate the dismissal

without prejudice of the backpay claims and instead enter judgment on the administrative record

against Mr. Langan.

First, there is no merit to Mr. Langan's contention that the Air Force was required to

provide him with active duty pay during the six days in April and June of201 l when he was

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incarcerated. As Judge Braden found in the context of addressing Mr. Langan's VSP-related

claims, the six days Mr. Langan spent in jail were properly treated as unexcused absences

without leave, because-notwithstanding that the charges against him were dismissed-his arrest

was based on several acts of misconduct. See Op. at 19-20 (citing DoD Fin. Mgmt. Reg. 7A, Ch.

1 (Jan. 2010), at 1-50, providing that absence due to civil confinement will be excused "if the

service member's charges are dismissed and it is clear that his arrest was not due to misconduct")

(emphasis supplied). Mr. Langan has not presented the Court with any basis for revisiting that

determination either in the context of his claims for active duty pay or his claim for an

adjustment of his VSP to reflect the time spent in jail as time in paid duty status. See Pl.'s Mot.

at 10-22; 35--40.

As noted, Mr. Langan has also alleged that he is entitled to backpay covering some forty-

five days between August and September of201 l when he agreed to be placed on unpaid

"excess leave" so that he could begin attending law school classes in California before his date of

separation from the Air Force. Mr. Langan contends that his agreement to take unpaid "excess

leave" was made under "duress" resulting from his commanding officer's denial of his request to

instead be placed on permissive temporary duty ("PTDY"). Am. Comp!. at 43. This claim was

properly rejected by the BCMR.

PTDY is "an authorized absence" that a unit commander may (but is not required to)

approve in specific circumstances expressly set forth in Air Force regulations. See Air Force

Instruction 36-3003, § 12.1 & Table 7 (Oct. 26, 2009). It does not appear to the Coutt that

attending law school classes is one of the circmnstances for which PTDY may be provided under

the Air Force regulations. But in any event, the decision whether to grant PTDY requests under

the regulations in effect when Mr. Langan agreed to take "excess leave" was left to the discretion

of unit commanders. See Air Force Instruction 36-3003, § 12.3.9 (Oct. 26, 2009) (explaining that

unit commanders "[m Jay deny PTDY requests without referring them to higher-level

headquarters"). Mr. Langan cites no regulation or other legal authority that affords service

members a legal entitlement to be placed on PTDY under any circumstances.

Further, Mr. Langan's claim that he agreed to be placed on excess leave under "duress"

lacks merit as a matter of law. Mr. Langan was not pressured by the Air Force to agree to be

placed on excess leave. He chose to be placed on excess leave so that he would be able to stait

law school on time and before he was discharged from the Air Force. But for his personal

decision to begin law school before he was discharged, he would have remained on active duty

and continued to receive active duty pay. His argument that he was placed on excess leave

involuntarily and under duress is therefore clearly without merit. Cf. Jenkins v. Merit Sys. Prot.

Bd., 911 F.3d 1370, 1375 (Fed. Cir. 2019) ("An involuntary retirement is an adverse

employment action 'where an agency imposes the terms of an employee's resignation, the

employee's circumstances permit no alternative but to accept, and those circumstances were the

result of improper acts of the agency."') (quoting Schultz v. U.S. Navy, 810 F.2d 1133, 1136

(Fed. Cir. 1987)); N. Star Steel Co. v. United States, 477 F.3d 1324, 1334 (Fed. Cir. 2007)

(holding that a claim of duress brought by a government contractor "requires a showing that the

Government's action was wrongful" and that "circumstances permitted no other alternative")

(citations omitted).

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In sh01i, Mr. Langan's claims related to excess leave and his entitlement to be paid while

he was incarcerated should not have been dismissed on statute-of-limitations grounds.

Nonetheless, for the reasons set forth above, the government is entitled to judgment on the

administrative record as to both claims.

B. Tax Refund Claims

Mr. Langan argues that Judge Braden failed to address two of his three tax refund claims.

The first is a claim that he was wrongfully taxed $1067.42 in tax year 2011 for a TSP transaction

that occurred in December of 2011. 1 Although not entirely clear, it appears that Mr. Langan

believes that the December 2011 TSP transaction should have been subject to taxation in tax year

2012 because the Form 1099-R reflecting the transaction was not issued until after April 2012,

and he did not receive it until after November 2012. Am. Comp!. at 64. Mr. Langan's second tax

claim is that he is due a refund of $413 for tax year 2011 because the IRS concluded in a May

16, 2017 notice that it should not have treated a cancellation of a debt that Mr. Langan owed to

Chase Bank as income to him. PL 's Mot. at 42.

The Court agrees that these claims were not addressed in the prior decision. 2 Nonetheless,

for the reasons set forth below, it finds that Mr. Langan's tax refund claims must be dismissed

under RCFC 12(b)(6) for failure to state a claim.

The statutory framework governing this Court's tax refund jurisdiction is set f01ih in the

prior decision. Op. at 9. To summarize, l.R.C. § 7422(a) requires that a taxpayer file an

administrative refund request before he may bring an action in comi. l.R.C. § 651 l(a) states

that-for taxes requiring a return-a taxpayer must file such a request no later than "3 years

from the time the return was filed or 2 years from the time the tax was paid, whichever of such

periods expires the later." And, l.R.C. § 6532(a)(l) states that a taxpayer must file suit within

two years of the date the Secretary mails a notice of disallowance covering the disputed claim.

1 "TSP" refers to the Thrift Savings Plan, which is a federal retirement savings program for

military personnel and many other federal employees.

2 The Court notes that, on the other hand, Judge Braden did address Mr. Langan's claim that the

Internal Revenue Service unlawfully withheld a p01iion of his tax refund for tax year 2011 in

order to satisfy his outstanding debt of $41,591.85 to DFAS. She concluded that the court lacked

jurisdiction over that claim to the extent that it had been "brought to restrain or review a

reduction authorized by subsection ... (d)" of26 U.S.C. § 6402 authorizing IRS to collect debts

owed to other federal agencies. Op. at 13-14 (citing 26 U.S.C. § 6402(g)). And while§ 6402(g)

also states that it "does not preclude any legal, equitable, or administrative action against the

Federal agency or State to which the amount of such reduction was paid," Judge Braden

exercised the court's Tucker Act jurisdiction to adjudicate the validity of the underlying debt to

DF AS in the context of determining Mr. Langan 's military pay claims.

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On August 5, 2013, the IRS assessed additional tax against Mr. Langan based on upward

revisions to his 2011 taxable income. Am. Comp!. Ex. K, at 179, ECF No. 11-3. 3 Those upward

revisions were based on unreported income derived from two sources: (I) a cancellation of debt

related to Mr. Langan's Chase Bank account; and (2) a taxable distribution of funds from his

TSP account. Id. at 180. 4 It appears that Mr. Langan eventually paid the tax for these additional

items by check on February 8, 2017. Id. Ex. L, at 200.

On February 21, 2017, Mr. Langan submitted an administrative refund request to the IRS

which covered these items. See id. at 212 (notice of disallowance referring to a letter dated

"02/21/2017"). On May 16, 2017, the IRS mailed him a notice of disallowance denying the TSP

claim but approving the $413 claim related to the debt cancellation by Chase Bank. Id. at 212-

14. The notice advised Mr. Langan that "[a] request for adjustment was forwarded for processing

by this office and will result in a decrease in income tax of($413.00-)." Id. at 213.

The Court finds that Mr. Langan's tax refund claims were timely filed for purposes of

invoking this Court's jurisdiction. He paid the pe1iinent taxes on February 8, 2017 and filed an

administrative refund claim on February 21, 2017, within the two-year time limit set forth in

I.R.C. § 65 ll(a). The IRS mailed its notice of disallowance on May 16, 2017. Mr. Langan then

filed suit on October 1, 2017, within the two-year time limit set fmih in I.R.C. § 6532(a)(l).

Turning to the merits, Mr. Langan's TSP-based claim fails for the reasons stated in the

IRS's notice of disallowance; namely, that the "taxable year for income is based on when the

income is paid or when, in this case, it became income." Am. Comp!. Ex. L, at 212. The date on

which Mr. Langan received the Form 1099-R that memorialized the transaction does not

determine the tax year to which the income is attributable. Mr. Langan has not provided any

legal basis for challenging this conclusion.

As for the $413 adjustment the IRS agreed to make to Mr. Langan's tax liability for 2011,

the Court understands Mr. Langan to be complaining not that the IRS failed to make the

adjustment, but that the adjustment did not result in him receiving a refund check. As the

government observes, however, the $413 adjustment was subject to the offset authorized to

satisfy Mr. Langan's outstanding debt to the United States arising out ofDFAS's overpayment

on his VSP. Gov't Mot. at 37, ECF No. 17 (citing ECF No. 11-1 at 34, stating that the

Department of Treasury "intended to collect the debt by intercepting any Federal payments made

to you, including tax refunds"). Mr. Langan, for his pmi, does not claim otherwise. Indeed, the

record shows that as of February 21, 2018, some eight months after the IRS indicated that it

would adjust his tax liability by $413, he still owed DF AS over $12,000. App. to Gov't Mot. at

3Page numbers cited in the exhibits to the amended complaint correspond with the ECF-stamped

numbers at the top of the page.

4

The IRS appears to have revised its assessment several times between August 5, 2013 and

Februm·y 8, 2017 at Plaintiffs request. Am. Comp!. Ex. L, at 197 (December 12, 2016 revised

assessment); id. at 208 (February 13, 2017 revised assessment).

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A65, ECF No. 17-1. The Comi concludes, therefore, that he has failed to state a claim that he is

entitled to a refund of $413.

C. Moving and Travel Vouchers

Mr. Langan's motion for reconsideration includes allegations that DFAS incorrectly

calculated the amount of the reimbursement due to him under a travel voucher and a "personally

procured move voucher." Pl. 's Mot. at 40; ECF No. 26-1 at 395-96 (travel voucher); ECF No.

26-1 at 410 (personally procured move voucher). These claims were referenced only in the

prayer for relief section of his amended complaint and were not addressed by in the prior

decision. There are no facts offered in support of the claims; nor does Mr. Langan identify the

relevant provisions of law or regulation upon which he relies. The Couti concludes, therefore,

that he has failed to establish the prerequisite to this Couti's exercise of jurisdiction under the

Tucker Act-namely, a money-mandating source of law or regulation. I-le has also failed to state

a claim for relief regarding these items. His request for reconsideration of the prior decision as to

these claims therefore lacks merit.

D. Property Damage

In his amended complaint, Mr. Langan alleged that when he moved from Florida to

California, the Air Force movers "caused over $1,400 of damage to [his] property and thus the

Defendant owes [him] $1,400." Am. Comp!. at 87. I-le repeats this claim in his motion for

reconsideration. Pl. 's Mot. at 41.

As with the voucher claims, the amended complaint provides no explanation of the

factual or legal basis for this claim. To the extent that Mr. Langan is alleging the commission of

a tort, this Court lacks jurisdiction under the Tucker Act to adjudicate it. See 28 U.S.C.

§ 1491(a)(l) (conferring jurisdiction to adjudicate "cases not sounding in tmi"); U.S. Marine,

Inc. v. United States, 722 F.3d 1360, 1372 (Fed. Cir. 2013). And if there is some other basis for

the claim based on a money-mandating statute or regulation, Mr. Langan has not identified it.

The Comi, accordingly, concludes that reconsideration of Judge Braden's dismissal of this claim

is not warranted.

E. Transfer Request

Lastly, Mr. Langan requests that this Court transfer his claims under the MWPA and

USERRA, as well as his claim for a refund of taxes withheld under the Treasury offset program,

to another court that would have jurisdiction over those claims. Pl. 's Mot. at 44. In support of

that request, he cites 28 U.S.C. § 1631, which provides in pe1iinent part that "[w]henever a civil

action is filed in a court ... and that court finds that there is a want of jurisdiction, the comi

shall, if it is in the interest of justice, transfer such action or appeal to any other such court (or,

for cases within the jurisdiction of the United States Tax Comi, to that comi) in which the action

or appeal could have been brought at the time it was filed or noticed."

As the couti of appeals has observed, "[a] case may be transferred under section 1631

only to a court that has subject matter jurisdiction." Jan's Helicopter Serv., Inc. v. F.A.A., 525

F.3d 1299, 1303 (Fed. Cir. 2008). In this case, no court would have jurisdiction over Mr.

Langan's claim under USERRA because he has not exhausted his administrative remedies for

7

such a claim. See Dew v. United States, 192 F.3d 366, 372 (2d Cir. 1999) (holding that

USERRA "does not authorize a private [] action against the Federal Government, as an

employer, in federal district court; rather, it confers jurisdiction upon the Merit Systems

Protection Board"). Similarly, as described in footnote 2, above, no court has jurisdiction to hear

Mr. Langan's claim for a refund of taxes under the Treasury offset program. See 26 U.S.C.

§ 6402(g). Instead, Mr. Langan is entitled to bring an action against the agency that holds the

debt, which he has done in this case (albeit unsuccessfully).

Finally, the MWPA "provides for a comprehensive administrative review scheme over

claims of retaliation-specifically, the correction of military records and disciplinary actions as

remedies for prohibited actions-but no private right of action for money damages, which could

be enforced in the Court of Federal Claims." See Bias v. United States, 722 F. App'x 1009, 1014

(Fed. Cir. 2018); see 10 U.S.C. § 1034(c)-(h) (providing for an investigation by the Inspector

General, followed by review by the BCMR, followed by review by the Secretary of Defense).

"Indeed," the court of appeals has observed, "no judicial review is available under the MWPA

because Congress precluded alternative fora by providing a specific form of redress in the

statute." Bias, 722 F. App'x at 1014 (citations omitted). Because there are no other comis that

would have jurisdiction over any of these claims, there is no basis to transfer them under 28

U.S.C. § 1631.

CONCLUSION

For the foregoing reasons, Plaintiffs motion to reconsider or for relief from judgment is

GRANTED-IN-PART and DENIED-IN-PART. The Clerk of the Comi shall VACATE the

judgment entered on November 28, 2018 (ECF No. 35). Further, the Clerk shall enter judgment

as follows:

The government's motion for dismissal and for judgment on the administrative record is

GRANTED-IN-PART and DENIED-IN-PART. The Clerk is directed to enter judgment on the

administrative record for the government as to Plaintiffs claim that he is entitled to backpay

covering periods of time that he spent incarcerated or on excess leave. The Clerk is directed to

enter judgment on the administrative record for Plaintiff as to his claim that the Air Force

miscalculated the amount of his voluntary separation pay insofar as he was entitled to an

additional $2. 72; in all other respects judgment is entered for the government as to that claim.

The case shall be remanded to the BCMR for correction of Plaintiffs records to reflect the

proper amount of voluntary separation pay due to him, including the additional $2. 72 discussed

herein.

In addition:

• Plaintiffs claim that he is entitled to additional reimbursement based on two moving

vouchers he submitted in 2011 is DISMISSED without prejudice for lack of

jurisdiction.

• Plaintiffs claim for an award of$1400 for damage to his personal prope1iy during his

move from Florida to California in 2011 is DISMISSED without prejudice for lack of

jurisdiction.

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• Plaintiffs claim that he is entitled to a refund of$1480.42 for tax year 2011 is

DISMISSED for failure to state a claim.

• Plaintiffs claims against defendants other than the United States are DISMISSED

without prejudice for lack of jurisdiction.

• Plaintiffs claims under the Uniformed Services Employment and Reemployment Rights

Act are DISMISSED without pre,judice for lack of jurisdiction.

• Plaintiffs claims under the Military Whistleblower Protection Act are DISMISSED

without prejudice for lack of jurisdiction.

• Plaintiffs claim that he is entitled to disability retirement pay is DISMISSED without

prejudice for lack of jurisdiction.

• Plaintiffs claim that he is entitled to a refund of taxes withheld under the Treasury offset

program is DISMISSED without prejudice for lack of jurisdiction.

• Plaintiffs request that this Court transfer his claims under the Military Whistleblower

Protection Act and the Unformed Services Employment and Reemployment Rights Act,

as well as his claim for a refund of taxes withheld under the Treasury offset program, is

DENIED.

IT IS SO ORDERED.

ELAINE D. KAPLAN

Judge

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