Petition for Writ of Certiorari — William L. Mitchell, Jr., Petitioner v. Frank Kendall, Secretary of the Air Force

Supreme Court briefSep 3, 2024

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INDEX TO APPENDICES

APPENDIX A - U.S. Court of Appeals Order dated March 27, 2024 (p. 1)

APPENDIX B - U.S. District Court Notice of Voluntary Dismissal 1 (p. 4)

APPENDIX C - U.S. District Court FCR dated December 9, 2022 (p. 7)

APPENDIX D - U.S. District Court Response & Objection to FCR (p.17)

APPENDIX E - U.S. District Court Order dated January 3, 2023 (p. 28)

APPENDIX F - U.S. District Court Plaintiffs Objection to Order (p. 33)

APPENDIX G - U.S. District Court FCR dated August 10, 2023 (p. 38)

APPENDIX H - U.S. District Court Notice of Voluntary Dismissal 2 (p. 47)

APPENDIX I - U.S. Court of Appeals Order dated May 2, 2024 (p. 54)

APPENDIX J - U.S. Court of Appeals Order dated June 5, 2024 (p. 56)

APPENDIX A

United States Court of Appeals

for the Fifth Circuit

William L. Mitchell, Jr.,

Petitioner

Frank Kendall, III, Secretary of the Air Force,

Respondent

23-11035

Appeal from the U.S. District Court

for the Northern District of Texas in

No. 22-cv-00443, Judge Mark T. Pittman

Decided August 11, 2023

William L. Mitchell, Jr.,

Plaintiff Pro Se Litigant

This appeal is from a second voluntary dismissal,

by Plaintiff, in a case involving the same claim.

Under Federal Rules of Civil Procedure 41(a)(1)(A)

and (B), the “Effect” of a second voluntary dismissal

“acts as an adjudication on the merits.” The U.S.

Court of Appeals for the Fifth Circuit gave the second

voluntary dismissal a disposition of “without prejudice”

and denied the appeal based on appellate jurisdiction.

However, no opinion was provided. Initial Denial below.

Hmteb States Court oC Appeals

for tlje jfiftf) Circuit

United States Court of Appeals

Fifth Circuit

FILED

March 27, 2024

No. 23-11035

Lyle W. Cayce

Clerk

William L. Mitchell, Jr.,

Plaintiff—Appellant,

versus

Frank Kendall, III, Secretary ofthe Air Force,

Defendant—Appellee,

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:22-CV-443

UNPUBLISHED ORDER

Before Jones, Southwick, and Ho, Circuit Judges.

Per Curiam:

William L. Mitchell, Jr. appeals several interlocutory rulings and or

ders from the magistrate judge and the district court. However, prior to the

district court adopting or rejecting the magistrate judge’s latest recommen

dations, Mitchell filed a voluntary dismissal without prejudice.

Under 28 U.S.C. § 1291, this court must review “final decisions of the

district courts. ” A plaintiffs voluntary dismissal of a case without prejudice

is not a final appealable order. See Griggs v.S.G.E. Mgmt., L.L.C., 905 F.3d

No. 23-11035

835,840 (5th Cir. 2018). Thus, this court lacks appellate jurisdiction to con

sider any of Petitioner’s appeals.

IT IS ORDERED that Petitioner’s appeals are dismissed.

APPENDIX B

United States Court of Appeals

for the Fifth Circuit

William L. Mitchell, Jr.,

Petitioner

Frank Kendall, III, Secretary of the Air Force,

Respondent

23-11035

Appeal from the U.S. District Court

for the Northern District of Texas in

No. 22-cv-00443, Judge Mark T. Pittman

Decided August 11, 2023

William L. Mitchell, Jr.,

Plaintiff Pro Se Litigant

U.S. District Court Notice of Voluntary

Dismissal dated November 18, 2014 below.

Case 4:14-cv-00847-0 D

Filed 11/18/14

Page 1 of 2 PagelD 44

U S Q-STRiCT COURT

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

201^ MOV i8 PM Uhh

CLERK OF COURT

WILLIAM L. MITCHELL, JR.,

VS.

DEPARTMENT OF AIR FORCE, et al.

CIVIL ACTION NO . 4:14-CV-847-0

NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE

Pursuant to Federal Rule of Civil Procedure 41(a), Plaintiff, William L. Mitchell, Jr.,

hereby requests the above captioned action be dismissed, without prejudice.

Respectfully submitted,

Dated: November 18,2014

William L. Mitchell, Jr.

Plaintiff

Case 4:14-cv-00847-0 Document 10 Filed 11/18/14

Page 2 of 2 PagelD 45

CERTIFICATE OF SERVICE

I HEREB Y CERTIFY that on this date, a copy of the foregoing document was served in

accordance with Federal R. Civ. P. 5(A) and 5(D) upon the defendant DEPARTMENT OF AIR

FORCE, et al., by first class mail addressed to: Department of Air Force, Attn: Secretary

Deborah Lee lames, 1690 Air Force Pentagon, Washington, D.C. 20330-1670 and U.S.

Department of Veterans Affairs, Attn: Secretary Robert A. McDonald, 810 Vermont Avenue

NW, Washington, D.C. 20420

Dated at Fort Worth, Texas this 18th day of November, 2014.

William L. Mitchell, Jr.

APPENDIX C

United States Court of Appeals

for the Fifth Circuit

William L. Mitchell, Jr.,

Petitioner

Frank Kendall, III, Secretary of the Air Force,

Respondent

23-11035

Appeal from the U.S. District Court

for the Northern District of Texas in

No. 22-cv-00443, Judge Mark T. Pittman

Decided August 11, 2023

William L. Mitchell, Jr.,

Plaintiff Pro Se Litigant

U.S. District Court Findings, Conclusions, and Recommendations of

Magistrate Judge Jeffrey L. Cureton dated December 9, 2022 below.

Case 4:22-cv-00443-P Document 46 Filed 12/09/22

Page 1 of 9 PagelD 355

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

WILLIAM L. MITCHELL, JR.,

Plaintiff,

VS.

FRANK KENDALL, III,

United States Secretary of the Air Force

Defendant.

CIVIL ACTION NO. 4:22-CV-443-P-BJ

;

FINDINGS. CONCLUSIONS. AND RECOMMENDATION REGARDING

DEFENDANT’S MOTION TO DISMISS

Pending before the Court is Defendant Frank Kendall, III, United States Secretary of the

Air Force (“Defendant” or “Secretary”)’s Motion to Dismiss (“Def.’s Mot.”) [doc. 37]. After

reviewing the motion, the related briefs, and the applicable law, the Court RECOMMENDS that

Defendant’s Motion to dismiss be GRANTED and that all claims against him be DISMISSED.

BACKGROUND1

Plaintiff pro se William Mitchell, Jr. (“Plaintiff’ or “Mitchell”) filed this lawsuit on May

24, 2022, alleging in his complaint that while serving as a member of the United States Air Force

in 2002, he was subject to racial discrimination. Mitchell claims that he was not allowed to file a

formal complaint about this discrimination at that time and, in retaliation for his attempt to report

it, he was subject to a Letter of Reprimand (“Reprimand”). From then on, Mitchell continued his

attempts to report the discrimination. A subsequent investigation by the Air Force Inspector

General concluded that he should not have been denied the ability to file an original report;

however, the Inspector General closed the matter because it also determined that no further

investigation was needed. Although Mitchell then complained that the Reprimand constituted

1 The factual background is taken from Plaintiffs complaint (“Pl.’s Compl.”) [doc. 1], For the purposes of

this order, the Court presumes that all of Mitchell’s well-pleaded factual allegations are true.

Case 4:22-cv-00443-P Document 46 Filed 12/09/22

Page 2 of 9 PagelD 356

retaliation, the Air Force took no further action. After receiving a second Reprimand, Mitchell

retired from the military. He then sought to clear his military record of the two Reprimands, but

the Evaluation Reports Appeal Board (“Appeal Board”) denied his application. In October 2014,

Mitchell sued the Air Force and Department of Veteran Affairs in federal court (“2014 suit”),

alleging violations of the United States Constitution, Title VII of the Civil Rights Act of 1964 (42

U.S.C. § 2000e), and 10 U.S.C. § 1034 arising out of the alleged discrimination and the

Reprimands in his record. See Mitchell v. Dep’t of Air Force, No. 4:14-CV-847-0, 2015 WL

12754905 (N.D. Tex. Dec. 4, 2015) (O’Connor, J.). The Court dismissed Mitchell’s claims for

lack of subject-matter jurisdiction. Mitchell then filed again with the Appeal Board to have his

record cleared. I-Ie also requested similar review and relief from the Office of the Secretary of the

United States Air Force. This application was referred to the Air Force Board for Correction of

Military Records (“Board for Correction”). Both applications were denied.

Then, in 2021, Mitchell sued the Secretary (“2021 suit”). See Mitchell v. Dep't of Air

Force, No. 4:21-CV-912-Y (N.D. Tex. May 3,2022) (Means, J.). In his 2021 suit, Mitchell alleged

that the failure to allow him to file a complaint of racial discrimination violated his rights under

the Fifth Amendment and 42 U.S.C. § 1983, and the issuance of the two Reprimands violated the

Administrative Procedures Act (“APA”) and the Whistleblower Protections Act under 10 U.S.C.

§ 1034. He further claimed that the denial of his application to remove these Reprimands violated

the APA. In his 2021 suit, Mitchell effectively sought to overturn the Board for Correction’s

decision under the APA based on its failure to inform him of his right to file suit as part of the

appeal process or, alternatively, its failure to “appreciate” his claims under 10 U.S.C. § 1034. On

May 3, 2022, the Court granted the Secretary’s Motion to Dismiss and found that (1) under the

Case 4:22-cv-00443-P Document 46 Filed 12/09/22

Page 3 of 9 PagelD357

Feres doctrine,2 the Court lacked subject-matter jurisdiction to hear Mitchell’s claims that sought

to overturn the Reprimands in his military personnel file and (2) that Mitchell failed to state a claim

under the APA for the Board for Correction’s review of his record. A final judgment in the 2021

suit was entered the same day.

Roughly three weeks after the resolution of his 2021 suit, Mitchell filed this suit before the

Court (“2022 suit”), with the Secretary as the sole Defendant. The claims in Mitchell’s 2022 suit

mirror those in his 2021 suit, nearly verbatim.3 The Secretary filed his Motion to Dismiss [doc.

31], arguing that Mitchell’s claims are barred by both res judicata and the Feres doctrine and that

Mitchell fails to plead a waiver of sovereign immunity or a claim for relief. (Def.’s Mot. at 7-9.)

Mitcheil fiied his response (“Pi.’s Resp.”) [doc. 37] and the Secretary fried his reply brief (“Def.’s

Reply”) [doc. 42]. The Secretary’s Motion to Dismiss is now ripe.

II.

LEGAL STANDARD

A. Rule 12(b)Q)

Federal courts are courts of limited jurisdiction and possess only that power authorized by

the Constitution and statute. Kokkonenv. Guardian Life Ins. Co. ofAm., 511 U.S. 375, 377 (1994).

Parties “may neither consent to nor waive federal subject matter jurisdiction.” Simon v. Wal-Mart

Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999). Federal Rule of Civil Procedure 12(b)(1) “allow[s]

a party to challenge the subject matter jurisdiction of the district court to hear a case.” Ramming v.

2 The Feres doctrine provides the Government sovereign immunity and “immunize[s] the United States and

members of the military from any suit that might intrude upon military affairs, second-guess military decisions, or

impair military discipline.” Miller v. United States, 42 F.3d 297, 302 (5th Cir. 1995) (cleaned up) (citing Feres v.

United States, 340 U.S. 135 (1950)). It is broadly applied, barring claims under the Federal Torts Claims Act, Bivens,

Section 1983, and Title VII claims. Watch v. Adjutant Gen. ’s Dep't of Tex., 533 F.3d 289, 294-95 (5th Cir. 2008)

(citing Feres, 340 U.S. 135.)

3 Mitchell asks the Court for the following relief: removal of reprimand letters from 2022, rank promotion

for purposes of retired pay, and “back-pay and retirement pay” based on his “correct retirement rank.” (Pi.’s Compl.

at 2.)

Case 4:22-cv-00443-P Document 46 Filed 12/09/22

Page 4 of 9 PagelD 358

United States, 281 F.3d 158, 161 (5th Cir. 2001). “The burden of establishing subject matter

jurisdiction [and resisting dismissal under Rule 12(b)(1)] rests upon the party asserting

jurisdiction.” Volvo Trucks N. Am., Inc. v. Crescent Ford Truck Sales, Inc., 666 F.3d 932, 935

(5th Cir. 2012); see also Settlement Funding, L.L.C. v. Rapid Settlements, Ltd., 851 F.3d 530, 537

(5th Cir. 2017). “If the record does not contain sufficient evidence to show that subject matter

jurisdiction exists, ‘a federal court does not have jurisdiction over the case.’” Settlement Funding,

851 F.3d at 537 (quoting Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001)).

B. 12(b)(6)

The standard for a Motion to Dismiss under Rule 12(b)(6) Federal Rule of Civil Procedure

12(b)(6) authorizes courts to dismiss complaints when they faii "to state a claim upon which relief

can be granted." FED. R. CIV, P. 12(b)(6). To defeat a Rule 12(b)(6) motion to dismiss, a plaintiff

must plead “enough facts to state a claim to relief that is plausible on its face.” Bell All. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Twombly, 550

U.S. at 556). The Court is not bound to accept legal conclusions as true. Iqbal, 556 U.S. at 67879. Only a complaint that states a plausible claim for relief survives a motion to dismiss.4

4 Because Mitchell is a pro se litigant, the Court has a duty to liberally construe the pleadings and motions in

his favor. Thus, his papers are held to a less stringent standard than formal pleadings drafted by attorneys. See Haines

v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam).

;

Case 4:22-cv-00443-P Document 46 Filed 12/09/22

III.

Page 5 of 9 PagelD 359

ANALYSIS

A. Applicability of Res Judicata

The threshold issue before the Court is whether Mitchell’s claims are barred by the doctrine

of res judicata.5 Simply put, “res judicata prevents litigation of all grounds for, or defenses to.

recovery that were previously available to the parties.” Brown v. Felsen, 442 U.S. 127,131 (1979)

(emphasis added) (quoting Chicot Cnty. Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378

(1940)). This protection extends to available claims/defenses “regardless of whether they were

asserted or determined in the prior proceeding.” Id. Additionally, the doctrine “may be pleaded

as a bar not only as respects matters actually presented ... ‘but also as respects any other available

matter which might have been presented to that end.’” Chicot, 308 U.S. at 378 (quoting Grubb v.

Pub. Utilities Comm’n, 281 U.S. 470, 470 (1930)). Res judicata'1 s application varies depending

on which party is successful in the previous lawsuit. If a party defending a claim prevails in tire

prior lawsuit, judgment acts as a bar to matters that could have been litigated in the original lawsuit.

See Barr v. Resolution Trust Corp. ex. rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex. 1992)

(emphasis added). In determining whether res judicata prevents a claim from continuing litigation,

the Fifth Circuit employs a four-pronged test:

(1) The parties are identical or in privity; (2) the judgment in the prior action

was rendered by a court of competent jurisdiction; (3) the prior action was

concluded by a final judgment on the merits; and (4) the same claim or cause of

action was involved in both cases.

5 Res judicata is intertwined with the term “claim preclusion.” See Ban■ v. Resolution Trust Corp. ex. rel.

Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex. 1992). The doctrine’s policies “reflect the need to bring all litigation

to an end. prevent vexatious litigation, maintain stability of court decisions, promote judicial economy, and prevent

double recovery.” Id. (quoting Zollie Seakley & Weldon U. Howell, Jr., Rumination on Res Judicata, 28 Svv. L.J.

355,358-59(1974)).

Case 4:22-cv-00443-P Document 46 Filed 12/09/22

Page 6 of 9 PagelD 360

Petro-Hunt, L.L.C. v. U.S., 365 F.3d 385, 395 (5th Cir. 2004); see also In re Southmark Corp., 163

F.3d 925, 934 (5th Cir. 1999) (citing Swate v, Harwell, 99 F.3d 1282, 1286 (5th Cir. 1996)).

The record before the Court conclusively establishes that prongs one, two, and three of the

res judicata test are undisputed—the 2021 and 2022 suits both list the Secretary as Defendant, the

;

2021 suit’s judgment was rendered by a court of competent jurisdiction, and the 2021 suit’s

judgement was final and on the merits. Accordingly, the Court will only address the fourth prong

of the res judicata test.

Prong 4: Whether the Same Claim or Cause of Action are Involved in Both

Lawsuits.

The remaining issue is whether the claims surrounding his Reprimands in Mitchell’s 2022

suit are the same claims he raised, or could have raised, in his 2021 suit and whether the lawsuits

involve the same cause of action. The Court will examine (1) if Mitchell’s claims are, in fact, the

same; and (2) if Mitchell could have brought the instant claims in his earlier lawsuit.

The Fifth Circuit utilizes the transactional test of Section 24 of the Restatement (Second)

of Judgments. See Restatement (Second) of Judgments, § 24; Petro-Hunt, LLC., 365 F.2d 295-96

(5th Cir. 2004). In its determination, rather than examine the type of relief requested or advanced

theories, the Court must determine whether the two actions are based on “the same nucleus of

operative facts.” See Eubanks, 977 F.2datl71 (quoting Matter ofHowe, 913 F.2d 1138, 1144-45

(5th Cir. 1990); In re Air Crash at Dallas/Ft. Worth Airport, 861 F.2d 814, 816 (5th Cir. 1988)).

That is, whether a “grouping of facts” are related in time, space, origin, or motivation.” Test

Masters Educ. Serv. 's, Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005) (quoting Petro-Hunt, 365,

F.3d at 396). “The preclusive effect of a prior judgment extends to all rights the original plaintiff

had ‘with respect to all or any part of the transaction, or series of connected transactions, out of

Case 4:22-cv-00443-P Document 46 Filed 12/09/22

which the [original] action arose.

Page 7 of 9 PagelD 361

In re Paige, 610 F.3d 865,872 (5th Cir. 2010) (quoting Petro-

Hunt, 365, F.3d. at 395-6 (quoting Restatement (Second) of Judgments Sec. 24(a) (1982).).

In the 2021 suit, Mitchell claims that the failure to allow him to file a complaint of racial

discrimination violated his rights under the Fifth Amendment and 41 U.S.C. § 1983, and the

issuance of the two Reprimands violated the APA and the Whistleblower Protections act under 10

U.S.C. 1034. Further, he claims that the denial of his application to remove the Reprimands

violated the APA. Mitchell essentially sought to overturn the Board for Correction’s decision

under the APA based on its failure to inform him of his right to file suit as part of the appeal

process or, alternatively, its failure to “appreciate” his claims under 10 U.S.C. § 1034.

The 2022 suit is a near mirror image of the 2021 suit. In his complaint, Mitchell directs

the Court to the 2021 suit by referring to “[supporting documentation” within the 2021 suit. (Pl.’s

Compl. at 4-5.) The “[supporting documentation” consists of Mitchell and the Secretary’s

motions and related briefs, and certain administrative records.

Mitchell re-incorporates the

referenced 2021 “[supporting documentation” in the complaint before the Court, seemingly in an

effort to convince the Court that the 2021 judgment was in error.

Should Mitchell have desired additional discovery or Court relief regarding his

Reprimands, he could have litigated this in the 2021 lawsuit. See Barr, 837 S.W. 2d at 628.

Considered together, all of Mitchell’s claims are related in time, space, origin and motivation in

that they form a “convenient trial unit” that supports his end goal of reversing his military records

and obtaining compensation. See Test Masters, 428 F.2d, at 571 (quoting Restatement (Second)

of Judgments 24 § (2)). The Court therefore FINDS Mitcheil has failed to meet his burden to

6 “

If a party can only win the suit by convincing the court that a prior judgment was in error, the second suit

is barred.” N.Y. Life Insur. Co. v. Giiiispie, 203 F.3d 384, 387 (5th Cir. 2000).

Case 4:22-cv-00443-P Document 46 Filed 12/09/22

Page 8 of 9 PagelD362

show that the causes of action in his 2021 suit and the 2022 suit are different. Accordingly, the

Court FINDS the same claims and/or causes of action exists as to both the previous and current

lawsuits and, thus, the fourth element of res judicata is satisfied as to the Secretary.

Specifically, the Court FINDS that the Secretary has met his burden of establishing all

elements of his res judicata defense in the present case and that his Motion to Dismiss should be

GRANTED and all claims against him DISMISSED.7

IV.

CONCLUSION

For the reason set forth above, the Court RECOMMENDS that Motion to Dismiss [doc.

37] be GRANTED and the above-styled and numbered cause be DISMISSED.

NOTICE OF RIGHT TO OBJECT TO PROPOSED

FINDINGS. CONCLUSIONS AND RECOMMENDATION

AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions and recommendation within fourteen (14) days after the party has

been served with a copy of this document. The United States District Judge need only make a de

novo determination of those portions of the United States Magistrate Judge’s proposed findings,

conclusions and recommendation to which specific objection is timely made. See 28 U.S.C. §

636(b)(1). Failure to file, by the date stated above, a specific written objection to a proposed

factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest

injustice, from attacking on appeal any such proposed factual findings and legal conclusions

accepted by the United States District Judge. See Douglass v. United Sen’s. Auto Ass79 F.3d

7 Based on the above application and finding regarding the applicability of res judicata, the Court declines

io address the Secretary's arguments regarding the Feres doctrine, sovereign immunity, and Mitcheii’s failure to state

a claim for relief.

Case 4:22-cv-00443-P Document 46 Filed 12/09/22

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1415, 1428-29 (5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1)

(extending time to file objections to 14 days).

;

ORDER

Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until December

22, 2022, to serve and file written objections to the United States Magistrate Judge’s proposed

findings, conclusions and recommendation. It is further ORDERED that if objections are filed

and the opposing party chooses to file a response, the response shall be filed within seven (7) days

of the filing date of the objections.

It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby

is returned to the docket of the United States District Judge.

SIGNED December^.,2022.

T7.

____

RETON

JEFFUNITED STATES MAGISTRATE JUDGE

JLC/adh

APPENDIX D

United States Court of Appeals

for the Fifth Circuit

William L. Mitchell, Jr.,

Petitioner

Frank Kendall, III, Secretary of the Air Force,

Respondent

23-11035

Appeal from the U.S. District Court

for the Northern District of Texas in

No. 22-cv-00443, Judge Mark T. Pittman

Decided August 11, 2023

William L. Mitchell, Jr.,

Plaintiff Pro Se Litigant

U.S. District Court Plaintiffs Response and Objection to

Findings, Conclusions, and Recommendations of

Magistrate Judge Jeffrey L. Cureton dated

December 22, 2022 below.

Case 4:22-cv-00443-P Document 48 Filed 12/22/22

Page 1 of 10 PagelD 367

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

WILLIAM L. MITCHELL, JR.,

VS.

FRANK KENDALL III, SECRETARY OF

THE AIR FORCE

CIVIL ACTION NO. 4:22-CV-00443-P-BJ

PLAINTIFF’S RESPONSE AND OBJECTION TO “FINDINGS. CONCLUSIONS. AND

RECOMMENDATION REGARDING DEFENDANT’S MOTION TO DISMISS”

To be clear, Plaintiff maintains all contentions and allegations specified in MOTION

FOR STAY PENDING REVIEW (ECF No. 35 dated November 2, 2022) which identified

ethical violations on the part of this Court and the U.S. Attorney’s Office; PLAINTIFF’S

OBJECTION TO “DEFENDANT’S MOTION TO DISMISS” (ECF No. 37 dated November

21, 2022); related responses, replies, and objections. That stated, Plaintiff provides Response

And Objection To "Findings, Conclusions, And Recommendation Regarding Defendant’s Motion

To Dismiss, ” ECF No. 46 dated December 9,2022.

Response to I. BACKGROUND:

As identified in PLAINTIFF’S RESPONSE IN SUPPORT OF MOTION FOR

DEFAULT JUDGMENT. “Defense Council has suggested, due to the number of lawsuits filed

by Plaintiff, it represents re-litigating matters already settled or decided by the Court, but this is

not accurate. Most recent Dismissal was “without prejudice” and the merits of Plaintiff s case

were not adjudicated. Dismissal was due primarily to the fact key evidence was not submitted as

part of the original Complaint, though it was submitted in the course of litigation, so it became

necessary to re-file and meet the standard identified by the Court. It is for this reason portions of

Case 4:22-cv-00443-P Document 48 Filed 12/22/22

Page 2 of 10 PagelD368

Plaintiff s claim [may] appear to mirror the previous filing” (ECF No. 13, p. 2, para. 1). Both

Defense Counsel and the Magistrate Judge have mischaracterized and framed Plaintiffs

COMPLAINT (ECF No. 1 dated May 24, 2022) to justify flawed defense arguments. Current

action was in response to a Dismissal “without prejudice” where previous case was dismissed, in

part, because key evidence was not submitted as part of the original COMPLAINT.

The evidence has now been incorporated into current COMPLAINT and is therefore in

compliance with Judge Means’ determination in previous action. Further, there is no re

litigation of matters settled in previous actions. Plaintiff clearly identifies instances where Feres

doctrine precludes consideration of allegations given the circumstances, but rather justifies their

inclusion by virtue of their “probative value.”1 Defense Counsel and the Magistrate Judge

mistake allegations as being central to Plaintiffs claim, and proceed to present counter

arguments based on a false premise. As a result, respective arguments have no basis.

Response to II. LEGAL STANDARD:

A. Rule 12(b)(1)

Federal Jurisdiction & Legal Basis: Under 28 U.S.C. § 1331, the district courts have

jurisdiction over cases arising under the U.S. Constitution or federal laws or treaties. Frank

Kendall, III inherited liability for violation of the following federal statutes:

A. 5th Amendment to the United States Constitution, “Procedural Due Process”

- Title 10 U.S. Code 1552, Correction of Military Records: Claims Incident Thereto

B. Title 5 U.S. Code 701 - 706, Administrative Procedure Act/Review or Appeal of Agency

Decision

- Title 10 U.S. Code 1552, Correction of Military Records: Claims Incident Thereto

- Title 10 U.S. Code 1557, Timeliness Standards for Disposition of Applications Before

Corrections Boards

- Title 10 U.S. Code 1034, Protected Communications; Prohibition of Retaliatory Personnel

Actions (COMPLAINT: ECF No. 1 dated May 24,2022, p. 2, para. II, items A & B).

'Summary of Violations — The following is a summary of violations giving rise to Plaintiffs claim. Ttem

numbers 1-4 (below) have substantial probative value, but due to the dates of their occurrence, they are time barred

and not actionable in relation to current claim. In addition, they occurred incidental to Plaintiffs military service;

thereby protected under FTCA and Feres doctrine. Items 8-12 reference Electronic Court Fillings (ECF’s) from

William L. Mitchell, Jr. v. Frank Kendall III, Secretary of the Air Force, CIVIL ACTIONNO. 4:21-CV-00912-Y:

ECF No. 1 dated May 24, 2022, p. 6, paral.

Case 4:22-cv-00443-P Document 48 Filed 12/22/22

Page 3 of 10 PagelD 369

Plaintiff clearly identifies jurisdiction of Federal District Court and legal bases of claims

in current complaint as sited above. 28 U.S.C. § 1331 is addressed in principle on page 1 and

paragraph 1 of COMPLAINT; ECF No. 1 dated May 24, 2022. Dismissal “without prejudice”

should also imply a certain degree of continuity to the extent arguments are picked up from

where they were left off. To the contrary, the Magistrate Judge is suggesting, as is Defense

Counsel, current action is a re-litigation of matters settled in the previous case. Issues involving

subject matter jurisdiction to include Title 42 U.S.C. Section 1983 are being argued as if they are

part of Plaintiff s Complaint. But if subject matter jurisdiction were settled, disposition of

Dismissal would not have been “without prejudice.” And though there is no Title 42 U.S.C.

Section 1983 claim, Defense Counsel and the Magistrate Judge argue against its inclusion.

B. 12(b)(6)

Electronic Court Fillings (ECF’s) from William L. Mitchell, Jr. v. Frank Kendall III,

Secretary of the Air Force, CIVIL ACTION NO. 4:21 -CV-00912-Y serve to establish dismissal

was due to the fact documents proving the Board did not consider the evidence submitted had not

been properly incorporated into Plaintiffs complaint: ECF No. 46 dated May 3,2022, p. 9, para.

B(2) & Footnote4. Judge Means states, “Thus, Mitchell’s allegations contained in his response

are not properly before the Court on this issue; but the documents referenced in his complaint

from his motion to stay proceedings may be. ... Accordingly, the only allegations the Court is

considering are contained in Mitchell’s complaint and his motion to stay proceedings. ”

In response, Plaintiff argues in his Motion For Reconsideration, “The issue involves

violation of due process from the standpoint of Plaintiff s right to appeal to SECDEF as part of

the Board’s review process outlined in AFI36-2603: Air Force Board For Correction Of Military

Records. The Board did not review information to the extent they did not recognize application

Case 4:22-cv-00443-P Document 48 Filed 12/22/22

Page 4 of 10 PagelD 370

involved whistleblower protections. What makes the oversight so glaring are the contents of

related correspondence which explicitly identify the application as one involving Title 10 U.S.

Code 1034: Statute governing the military’s Whistleblower Protection Directive [ECF No’s. 41-1

and 42, dated January 6,2022 and January 10,2022 respectively, Plaintiff's Response To "Reply

In Support OfDefendant's Motion To Dismiss Plaintiffs Second Amended Complaint” and

“Motion For Leave To File A Surreply" (Additional Attachments)].

As referenced previously, AFI36-2603, para. 5.1 - 5.4 outline the procedures the Board

is to follow for applications involving whistleblower protections. The Board not only violated

those procedures, but obstructed Plaintiffs appeal to SECDEF. Plaintiff has provided AFBCMR

Executive Director Nicole D. Jackson’s response on behalf of SECDEF Austin (ECF No. 39, pp.

26 - 28, Plaintiff’s Objection In Response To ‘Defendant’s Motion To Dismiss 2nd Amended

Complaint And BriefIn Support ’ dated December 23,2021). It was not appropriate and not in

accordance with procedure. By default, previous decisions rendered by the Board were arbitrary,

capricious, and not in accordance with the law. Therefore, the APA claim has been stated”

{William L. Mitchell, Jr. v. Frank Kendall III, Secretary of the Air Force, CIVIL ACTION NO.

4:21-CV-00912-Y: ECF No. 48 dated May 10,2022, p. 5, para. 3 - p. 6, para. 1 and 2).

Judge Means responds to Plaintiffs Motion tor Reconsideration stating, “In his motion

for reconsideration, Mitchell argues that that the Feres doctrine does not bar his claim under the

APA; the Court agrees now, as it did in the order granting the motion to dismiss... . Allegations

and documentation submitted in Mitchell’s responsive briefing was not properly before the Court

to determine whether his complaint stated a plausible claim. See Leal v. McHugh, 731 F.3d 405,

407 n.2 (5th Cir. 2013). Therefore, Mitchell’s argument for reconsideration of his APA claim’s

dismissal must fail” (ECF No. 49 dated May 13,2022, p. 1, para. 1 and p. 2, para. 1).

, Case 4:22-cv-00443-P Document 48 Filed 12/22/22

Page 5 of 10 PagelD371

In DEFENDANT’S MOTION TO DISMISS (ECF No. 31 dated October 31, 2022)

there is no mention of key documents which led to re-filing of suit and current action. However,

APPENDIX TO DEFENDANT’S MOTION TO DISMISS (ECF No. 32 dated October 31,

2022, App. 021 - 026) provides comprehensive outline. The following is abbreviated for review:

January 6, 2022 - MOTION FOR LEAVE TO FILE A SURREPLY

February 1, 2022 - ORDER DENYING LEAVE TO FILE SURREPLY

May 3, 2022 - ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

May 3, 2022 - FINAL JUDGMENT

May 10, 2022 - MOTION FOR RECONSIDERATION

May 13, 2022 - ORDER DENYING MOTION FOR RECONSIDERATION

May 17, 2022 - MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT

May 18, 2022 - ORDER DENYING MOTION FOR LEAVE TO AMEND COMPLAINT

The above filings from William L. Mitchell, Jr. v. Frank Kendall III, Secretary of the Air

Force, CIVIL ACTION NO. 4:21-CV-00912-Y played a significant role in Plaintiffs ultimate

determination to re-file rather than appeal the Court’s ruling. On January 6,2022, Plaintiff filed

for leave to file a surreply for the purpose of including evidence to meet or exceed the threshold

of the “Plausibility Standard.” The motion was denied February 1, 2022, Defendant’s motion to

dismiss was granted, and the case was Dismissed “without prejudice” May 3, 2022. Because

Judge Means established the new evidence needed to be incorporated into the original complaint,

in response to motion for reconsideration, Plaintiff filed motion for leave to amend complaint

May 17,2022. The motion was also denied, so Plaintiff weighed his options and determined the

best outcome of filing appeal through the 5th Circuit likely would have been remand of the case

back to the District Court, so he chose to re-file directly through the District Court May 24, 2022.

Case 4:22-cv-00443-P Document 48 Filed 12/22/22

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The following are excerpts from current action which serve to identify violations

beginning with incidents from Plaintiffs military service through most recent processing of

applications through the Board of Corrections. Initial statement simply identifies liability

inherited by Defendant by virtue of his appointment as Secretary of the Air Force. Violations are

then listed to provide background on the facts alleged to have caused damages claimed:

Statement of Claim: Violations 1-12 (below) identify liability inherited by Frank

Kendall, III by virtue of his appointment to the Office of Secretary of the Air Force: ECF

No. 1 dated May 24,2022, p. 2, para. III.

Violations - The following violations (1 - 12) state the facts alleged to have caused

damages claimed. Violations 4-12 reference Electronic Court Fillings (ECF’s) from

William L. Mitchell, Jr. v. Frank Kendall 111, Secretary of the Air Force, CIVIL ACTION

NO. 4:21-CV-00912-Y: ECF No. 1 dated May 24,2022, p. 3, para. 1.

The violations are then summarized and put into proper context where it is clearly

identified which violations are time barred, and therefore not actionable. The same violations the

Magistrate Judge and Defense Counsel frame arguments against to disqualify current action.

FTCA and Feres doctrine protections are acknowledged in relation to these items, but they are

included due to their “probative value:

.55

Summary of Violations - The following is a summary of violations giving rise to

Plaintiffs claim. Item numbers 1-4 (below) have substantial probative value, but due to

the dates of their occurrence, they are time barred and not actionable in relation to current

claim. In addition, they occurred incidental to Plaintiffs military service; thereby

protected under FTCA and Feres doctrine. Items 8-12 reference Electronic Court

Fillings (ECF’s) from William L. Mitchell, Jr. v. Frank Kendall III, Secretary of the Air

Force, CIVIL ACTION NO. 4:21-CV-009I2-Y: ECF No. 1 dated May 24, 2022, p. 6, para. 1.

It is then in the conclusion portion of the complaint Plaintiff reiterates and identifies

violations which are actionable - violations of “Timeliness Standards” and “Whistleblower

Protections” during the processing of respective applications - the U.S. Constitution and the APA

are identified as the statutes which give rise to current claim:

Case 4:22-cv-00443-P Document 48 Filed 12/22/22

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Subsequent to SAF James’ violation, SECDEF Ashton B. Carter referred the matter to

the Board. Two applications were processed: an initial application and a reconsideration

application. Both were denied, but adjudication of most recent application’s final

decision set the stage for current claim. The Air Force Board For Correction Of Military

Records (AFBCMR) rendered a decision June 2021 which was not in compliance with

“Timeliness Standards” under Title 10 U.S. Code 1557, failed to process application as

one involving whistleblower protections (Title 10 U.S. Code 1034) and as a result, appeal

was not properly elevated to the Office of the Secretary of Defense (SECDEF). Instead,

AFBCMR Executive Director Nicole D. Jackson provided response on behalf of

SECDEF Austin which was not in accordance with Air Force Instruction (AFI) 36-2603,

para. 5.1 - 5.4 . . .“Decisions in Cases Under the Military Whistleblowers Protection

Act.” This claim therefore rises out of the 5th Amendment to the U.S. Constitution by

virtue of Title 5 U.S. Code 701 — 706, Administrative Procedure Act/Review or Appeal

of Agency Decision: ECF No. 1 dated May 24,2022, p. 8, para. 4.

Response to III. ANALYSIS:

A. Applicability of Res Judicata

In Latin, res judicata means “the thing has been decided” and translates to “a matter

judged.” In short, matters to which the doctrine applies are regarded as “claim preclusive” and

not subject to further adjudication. However, according to Rule 41 of the Federal Rules of Civil

Procedure (FRCP), the following are not claim preclusive and are not considered “adjudication

on the merits:” 1. A lack of jurisdiction, 2. Improper venue, 3. Failure to join a party when

required to do so under FRCP 19 (aka “Mandatory Joinder”), 4. Voluntary dismissals, and

5. If the dismissal order does not state otherwise (i.e. a decision made “without prejudice”).

In the matter of William L. Mitchell, Jr. v. Frank Kendall 111, Secretary of the Air Force, CIVIL

ACTION NO. 4:21-CV-00912-Y, Dismissal was “without prejudice” (ECF No. 46 dated May 3,

2022, p. 12, para. 2, Conclusion)-, therefore, the doctrine of res judicata does not apply.

1. Prong 4: Whether the Same Claim or Cause of Action are Involved in Both

Lawsuits.

Plaintiff has established the doctrine of res judicata does not apply; accordingly, neither

does the associated “four-pronged test.” If the dismissal order does not state otherwise (i.e. a

Case 4:22-cv-00443-P Document 48 Filed 12/22/22

Page 8 of 10 PagelD 374

decision made “without prejudice”), the matter is not claim preclusive. The previous action was

Dismissed ‘‘without prejudice” May 3,2022. The primary purpose of re-filing current action was

to incorporate key evidence into complaint in compliance with Judge Means’ determination at

that time. Plaintiff makes reference to the correspondence in paragraph 1 of his conclusion:

Conclusion: This claim goes back to June 3,2016, less than six years after the filing of

current civil action. On April 14, 2016, Plaintiff received Evaluation Reports Appeal

Board’s (ERAB’s) response on behalf of Secretary James dated April 8,2016. This is

significant because the response served to confirm SAF did not conduct review in

accordance with Air Force Instruction 36-2603, para. 5.1 as Title 10 U.S. Code 1034

assertion was inherent to Plaintiffs original complaint through federal district court dated

October 17, 2014. Therefore, SAF James’ failure to conduct review as prescribed

constitutes violation of Title 10 U.S. Code 1552 and Amendment 5 to the U.S.

Constitution. Plaintiff provides this information in a letter to AFBCMR Executive

Director John K. Vallario, dated June 3,2016, identifying key correspondence referenced

on initial application (attached). See also Violation 12 attachments 1 — 13 above: ECF

No. 1 dated May 24,2022, p. 8, para. 3.

There is also no re-litigation of arguments from previous claim or any mention of Title 42

U.S.C. Section 1983 as Defense Counsel and Magistrate Judge argue. The new evidence was not

incorporated in the 2021 suit as the Magistrate Judge contends. Notwithstanding, there are

portions of the 2021 suit which remain relevant, but context for those portions of the complaint

have been explained as ‘violations listed to provide background on the facts alleged to have

caused damages claimed (p. 4, para. 1 above).’ Finally, Plaintiff references key documentation

in support of his APA claim in the final paragraph of his conclusion:

Additional arguments in support of claim are contained in Plaintiffs “Motion For Stay

Pending Review” dated August 9,2021 (ECF No’s. 7 - 7-7): William L. Mitchell, Jr. v.

Frank Kendall III, Secretary of the Air Force, CIVIL ACTION NO. 4:21-CV-00912-Y.

Background of attempted appeal through SECDEF and direct rebuttal arguments to the

Board’s adjudication of the case, as well as Executive Director Jackson’s related

responses are all contained in these documents. Rebuttal arguments further establish the

“arbitrary and capricious” standard of Plaintiff s APA claim. Primary documents include

“Applicant’s Closing Arguments” and “Summary For Caseworker.” They help identify

the fact the Board did not review the information submitted and their decision was a

foregone conclusion from the outset.... ECF No. 1 dated May 24,2022, p. 8, para. 5.

Case 4:22-cv-00443-P Document 48 Filed 12/22/22

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Because the doctrine of resjudicata has no application in this case, no viable arguments

have been presented to contest Plaintiffs claim. Regarding the implication arguments involving

the Feres doctrine, sovereign immunity, and failure to state a claim for relief are viable, Plaintiff

has addressed the fact violations incidental to his service have been included primarily for their

probative value. There is an inherent waiver of sovereign immunity by virtue of the APA, and

the Defendant has the authority to mitigate damages incurred by virtue of Title 10 U.S.C. 1552.

Response to IV. CONCLUSION:

The Defendant, Secretary Frank Kendall, III, has not met his burden of establishing all

elements of the res judicata defense. Further, the doctrine has no application in this case. The

Defendant’s Motion to Dismiss should therefore be DENIED for the reasons set forth above.

Response to NOTICE OF RIGHT TO OBJECT TO PROPOSED

FINDINGS, CONCLUSIONS AND RECOMMENDATION

AND CONSEQUENCES OF FAILURE TO OBJECT:

Plaintiff objects to lide nova determination” and defers to OBJECTION TO ORDER

DENYING MOTION FOR RECONSIDERATION (ECF No. 47 dated December 20, 2022).

Response to ORDER:

The Magistrate Judge, with complicity of the District Judge, has prejudiced these entire

proceedings to the unfair advantage of the Defendant. Contents of ORDER reflect the same.

Respectfully submitted,

Dated: December 22,2022

/s/William L. Mitchell. Jr.

William L. Mitchell, Jr.,

Plaintiff Pro Se Litigant

2810 Tumberry Drive #915

Arlington, TX 76006

Telephone: 817-642-5440

Facsimile: 817-458-9990

E-mail: wil45(a),att.net

Case 4:22-cv-00443-P Document 48 Filed 12/22/22

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CERTIFICATE OF SERVICE

On December 22,2022,1 electronically submitted the foregoing document with the clerk

of the court for the U.S. District Court, Northern District of Texas, using the electronic case

filing system of the court. I hereby certify that I have served all parties electronically or by

certified mail, methods authorized by Federal Rule of Civil Procedure 5(b)(2).

Dated at Fort Worth, Texas this 22nd day of December, 2022.

s/William L. Mitchell. Jr.

William L. Mitchell, Jr.,

Plaintiff Pro Se Litigant

APPENDIX E

United States Court of Appeals

for the Fifth Circuit

William L. Mitchell, Jr.,

Petitioner

Frank Kendall, III, Secretary of the Air Force,

Respondent

23-11035

Appeal from the U.S. District Court

for the Northern District of Texas in

No. 22-CV-00443, Judge Mark T. Pittman

Decided August 11, 2023

William L. Mitchell, Jr.,

Plaintiff Pro Se Litigant

U.S. District Court Order by Federal District Court

Judge Mark T. Pittman dated January 3, 2023 below.

Case 4:22-cv-00443-P Document 49 Filed 01/03/23

Page lot 4 Page! D 377

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

William L. Mitchell, JR.,

Plaintiff,

No. 4:22-CV-00443-P

Frank Kendall, III,

Defendant.

ORDER

Before the Court is Defendant’s Motion to Dismiss. ECF No. 31. The

United States Magistrate Judge issued Findings, Conclusions, and

Recommendations (“FCR”) on Defendant’s Motion. For the reasons

stated below, the Court REJECTS the reasoning of the Magistrate

Judge’s FCR (ECF No. 46) and GRANTS Pro Se Plaintiffs objection.

BACKGROUND

Pro Se Plaintiff sued Defendant on May 4, 2022. ECF No. 1. This is

not Plaintiffs first time in court. Nor is it his first time suing this

Defendant.

In 2014, Plaintiff sued the United States Air Force and the

Department of Veteran Affairs, alleging violations of the Constitution,

Title VII of the Civil Rights Act of 1964, and 10 U.S.C. § 1034. Mitchell

v. Dep’t Air Force, No. 4:14-CV-847-0, 2015 WL 12754905 (N.D. Tex.

Dec. 4, 2015) (O’Connor, J.). Plaintiff alleged that he was subject to

racial discrimination related to reprimands on his service record. Id.

The Court dismissed the case for lack of subject matter jurisdiction. Id.

In 2021, Plaintiff sued the United States Air Force and the abovenamed Defendant related to the same operative facts as the 2014 suit—

this time under a different theory. See Mitchell v. Dep’t of Air Force, No.

4:2 1-CV-912-Y (N.D. Tex. May 3, 2022) (Means, J.). In this suit, Plaintiff

alleged violations of the Fifth Amendment, 42 U.S.C. § 1983, the

Case 4:22-cv-00443-P Document 49 Filed 01/03/23

Page 2 of 4 PagelD378

Administrative Procedure Act (“APA”), and the Whistleblower

Protections Act under 10 U.S.C, § 1034. Id, This case was dismissed

without prejudice due to a lack of subject-matter jurisdiction. Id.

Plaintiff brought this action three weeks after the 2021 suit’s

dismissal and asserts nearly identical claims—this time only against

one Defendant. ECF No. 1 at 1. Defendant moved to dismiss for multiple

reasons, including that res judicata requires this Court to dismiss the

case. The United States Magistrate Judge’s FCR on Defendant’s Motion

recommended dismissal based solely on the grounds of res judicata. ECF

No. 46 at 8. Plaintiff timely objected. ECF No. 48.

LEGAL STANDARD

A. Review of Magistrate Judge’s Recommendation

A Magistrate Judge’s FCR on a dispositive matter is reviewed de

novo if a party timely objects. Fed. R. ClV. P. 72. But if all or part of the

Magistrate Judge’s disposition is not objected to, the FCR is reviewed

for plain error. Id. Because Plaintiff timely objected (ECF No. 48), the

Court reviews the Magistrate Judge’s FCR de novo.

B. Motion to Dismiss

To survive a motion to dismiss for “failure to state a claim upon which

relief can he granted,” Fed. R. Civ. P. 12(b)(6), a plaintiffs complaint

“must contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). The Court accepts all well-pleaded facts as true, drawing all

inferences in favor of and viewing all facts in the light most favorable to

the nonmoving party. Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194

(5th Cir. 2009).

ANALYSIS

A. Res Judicata

Res judicata requires four elements: (1) the same parties or privity;

(2) a judgment rendered by a court of competent jurisdiction; (3) a final

judgment on the merits; and (4) the same claim or cause of action was

Case 4:22-cv-00443-P Document 49 Filed 01/03/23

Page 3 of 4 PagelD 379

involved in both cases. Petro-Hunt v. United States, 365 F.3d 385, 395

(5th Cir. 2004). If these elements are met, a plaintiff is prohibited “from

raising any claim ... in the later action that was or could have

been raised in support of . . . the cause of action asserted in the prior

action.” United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994).

The Court only considers the third element in rejecting the

application of res judicata to Pro Se Plaintiffs claims.

The Magistrate Judge’s analysis of this element states that “the 2021

suit’s judgement [sic] was final and on the merits.” ECF No. 46 at 6. Pro

Se Plaintiff objects to this reasoning and argues that the previous

dismissal “was without prejudice and the merits of Plaintiffs case were

not adjudicated.” ECF No. 48 at 1 (internal quotations omitted).

Pro Se Plaintiff is correct—the Court did not adjudicate the case on

the merits because the dismissal was without prejudice. See Semtek Inti

Inc. v. Lockheed. Martin Corp., 531 U.S. 497, 505 (2001) (“An

adjudication upon the merits is the opposite of a dismissal without

prejudice.”); see also Nilsen v. City of Moss Point, 701 F.2d 556, 562 (5th

Cir. 1983) (en band) (holding that in a res judicata context “[djismissals

for want of jurisdiction are not decisions on the merits.”). The functional

meaning of a dismissal without prejudice “is dismissal without barring

the plaintiff from returning later, to the same court, with the same

underlying claim.” Id.; see also Rolls-Royce Corp. v. Heros, Inc., 576 F.

Supp. 2d 765, 776 (N.D. Tex. 2008) (finding that a dismissal without

prejudice does not have res judicata effect).

So, while Plaintiffs claims are similar—and nearly identical in many

instances—res judicata does not apply because the previous dismissal

without prejudice does not constitute a final judgment on the merits.

Defendant’s briefing gives other arguments for dismissal that have

merit, but the FCR does not address them.

The Court thus REJECTS the reasoning of the Magistrate Judge’s

FCR (ECF No. 46) and GRANTS Pro Se Plaintiffs ohjection. The Court

further REFERS this Motion and related filings back to United States

Magistrate Judge Jeffrey Cureton for fall consideration of Defendant’s

briefing on his motion.

Case 4:22-cv-00443-P Document 49 Filed 01/03/23

Page 4 of 4 PagelD 380

SO ORDERED on this 3rd day of January 2023.

~7~~

Mark T. Pittman

United States District Judge

APPENDIX F

United States Court of Appeals

for the Fifth Circuit

William L. Mitchell, Jr.,

Petitioner

Frank Kendall, III, Secretary of the Air Force,

Respondent

23-11035

Appeal from the U.S. District Court

for the Northern District of Texas in

No. 22-cv-00443, Judge Mark T. Pittman

Decided August 11, 2023

William L. Mitchell, Jr.,

Plaintiff Pro Se Litigant

U.S. District Court Plaintiffs Objection to Order

dated January 4, 2023 below.

Case 4:22-cv-00443-P Document 52 Filed 01/03/23

Page 1 of 4 PagelD 387

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

WILLIAM L. MITCHELL, JR.,

VS.

FRANK KENDALL III, SECRETARY OF

THE AIR FORCE

CIVIL ACTION NO. 4.22-CV-00443-P

PLAINTIFF’S OBJECTION TO “ORDER”

Plaintiff is in receipt of ORDER (ECF No. 49 dated January 3, 2023). While Plaintiff is

in agreement with the Court’s GRANTING of related objection(s), the Defendant was also

afforded ‘7 days from the filing date of the objections to submit a response:’ FINDINGS.

CONCLUSIONS. AND RECOMMENDATION REGARDING DEFENDANT S MOTION

TO DISMISS (ECF No. 46 dated December 9,2022, p. 9, ORDER). The Defendant elected not

to respond in light of Plaintiff s objections, which directly addressed the implication of

additional arguments referred to in the Magistrate Judge’s FCR (ECF No. 46): PLAINTIFF’S

RESPONSE AND OBJECTION TO “FINDINGS. CONCLUSIONS. AND

RECOMMENDATION REGARDING DEFENDANT S MOTION TO DISMISS” (ECF

No. 48 dated December 22,2022, p. 9, para. 1). Plaintiff therefore maintains original objection

of referral of this case to Magistrate Judge Jeffrey L. Cureton.

Further, in previous filings, Plaintiff identified disposition of prior Dismissal was

“without prejudice” due to the fact key evidence had not been incorporated into original

compiaint. The suit has since been re-filed (May 24,2022) and evidence has now been

incorporated into current complaint in compliance with Judge Means’ determination. The

Case 4:22-cv-00443-P Document 52 Filed 01/03/23

Page 2 of 4 PagelD 388

information provides proof the Board did not consider the evidence submitted. As a result,

respective standards have been met to allow current action to move forward, t he following

identifies why both the APA’s “arbitrary and capricious” standard, and therefore the “Plausibility

Standard” thresholds have been met:

1. Violation of “ t imeliness Standards” was more significant than meets the eye. There

were two standards at play which were addressed in correspondence to Secretary of the

Air Force (SAF) Barbara M. Barrett. The following information was initially shared with

Attorney Joseph D. Galli of Gary Myers, Daniel Conway & Associates Attomeys-AtLaw in an e-mail communication dated September 15,2020:

Timeliness Standard: Title 10 USC 1557

10 to 18 mos (90% adjudicated within 10 months, 100% adjudicated within 18 months)

AFBCMR Appeal received June 13, 2019. Deadline: December 14,2020

Bar To Re-enlistment received August 20,2019. Deadline: February 22, 2021

Precise Deadline Windows:

AFBCMR Appeal: Deadline between April 3,2020 (10 month deadline) and December

13, 2020 (18 month deadline)

Bar To Re-enlistment: Deadline between June 20,2020 (10 month deadline) and

February 20,2021 (18 month deadline)

2. However, because applications involved Whistleblower Protections, they were to be

processed within 180 days (6 months) with direct appeal to SECDEF inherent (90 day

review). The two applications were each processed in excess of 2 years, and the entire

span of processing initial application and reconsideration was in excess of 5 years. So

violation of Timeliness Standards was gross and egregious given what should have been

Case 4:22-cv-00443-P Document 52 Filed 01/03/23

Page 3 of 4 PagelD389

accomplished between 1 year at a minimum, and 2 years at the most, took in excess of 5

years resulting in back to back denials because the Board did not recognize and process

applications as those involving Whistleblower Protections.

In conclusion, Plaintiff maintains original objection of referral of this case to Magistrate

Judge Jeffrey L. Cureton. t he Defendant chose not to respond within the window afforded him

by the Magistrate Judge in light of Plaintiff’s objections, which directly addressed the

implication of additional arguments referred to in the Magistrate Judge’s FCR (ECF No. 46).

In addition, the idea of a “de novo determination” would potentially serve to discount

disposition of Judge Means’ Dismissal of original suit. Therefore, Plaintiff maintains his

objection on the basis such determination would preclude proceedings from picking up from

where they were left off. Further, the Defendant has not met his burden required for dismissal

because the arguments presented have no basis and due to the APA’s inherent waiver of

sovereign immunity. However, the Defendant, Frank Kendall, HI, does have the authority to

mitigate damages incurred by virtue of Title 10 U.S.C. 1552, and the Defendant’s Motion to

Dismiss should therefore be DENIED for that reason as well as for those set forth above.

Respectfully submitted,

Dated: January 4,2023

/s/William L. Mitchell. Jr.

William L. Mitchell, Jr.,

Plaintiff Pro Se Litigant

2810 Tumberry Drive #915

Arlington, TX 76006

Telephone: 817-642-5440

Facsimile: 817-458-9990

E-mail: wil45@att.net

Case 4:22-cv-00443-P Document 52 Filed 01/03/23

Page 4 of 4 PagelD 390

CERTIFICATE OF SERVICE

On January 4,2023,1 electronically submitted the foregoing document with the clerk of

the court for the U.S. District Court, Northern District of Texas, using the electronic case filing

system of the court. I hereby certify that I have served all parties electronically or by certified

mail, methods authorized by Federal Rule of Civil Procedure 5(b)(2).

Dated at Fort Worth, Texas this 4th day of January, 2023.

s/William L. Mitchell. Jr.

William L. Mitchell, Jr.,

Plaintiff Pro Se Litigant

APPENDIX G

United States Court of Appeals

for the Fifth Circuit

William L. Mitchell, Jr.,

Petitioner

Frank Kendall, III, Secretary of the Air Force,

Respondent

23-11035

Appeal from the U.S. District Court

for the Northern District of Texas in

No. 22-cv-00443, Judge Mark T. Pittman

Decided August 11, 2023

William L. Mitchell, Jr.,

Plaintiff Pro Se Litigant

U.S. District Court Second Findings, Conclusions, and

Recommendations of Magistrate Judge Jeffrey L. Cureton

dated August 10, 2023 below.

Case 4:22-cv-00443-P Document 62 Filed 08/10/23

Page 1 of 8 PagelD 417

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

WILLIAM L. MITCHELL, JR.,

Plaintiff,

VS.

FRANK KENDALL, III,

United States Secretary ofthe Air Force

Defendant.

CIVIL ACTION NO. 4.22-CV-443-P-BJ

SECOND FINDINGS. CONCLUSIONS, AND RECOMMENDATION REGARDING

DEFENDANT’S MOTION TO DISMISS

Pending before the Court is Defendant United States Secretary of the Air Force Frank

Kendal!, Ill (“Defendant” or “Secretary Kendall”)’s Motion to Dismiss [doc. 31], filed October

31, 2022.

The undersigned previously issued his first Findings, Conclusions, and

Recommendation Regarding Defendant’s Motion to Dismiss (“FCR”) [doc. 46], recommending

dismissal of all pro se Plaintiff William L. Mitchell, Jr. (“Plaintiff5 or “Mitcheil”)’s claims against

Defendant on December 9, 2022. Mitchell timely filed his objections to the Court’s FCR and

United States District Judge Mark Pittman rejected the undersigned’s FCR on January 3, 2023

[doc. 49]. Judge Pittman referred Defendant’s Motion to Dismiss [doc. 31] back to the undersigned

for further consideration of Defendant’s briefing. Having again reviewed the motion, parties’

briefs, and all applicable law, the Court RECOMMENDS that Defendant’s Motion to Dismiss

[doc. 31] be GRANTED and that all claims against him be DISMISSED.

Case 4:22-cv-00443-P Document 62 Filed 08/10/23

Page 2 of 8 PagelD 418

BACKGROUND1

Pro se Mitchell filed the instant iawsuit on May 24,2022, alleging various “Constitutional

violations under the 5th Amendment” during his enlistment with the Department of the Air Force.

(PL’s Compl. at 1.) Mitchell has previously sued this Defendant twice before. In 2014, he sued

the United States Air Force and Department of Veteran Affairs for alleged violations of Title VII

of Civil Rights Act of 1964, 10 U.S.C. § 1034, and various other Constitutional provisions. See

Mitchell v. Dep 7 Air Force, No. 4:13-CV-847-0, 2015 WL 12754905 (N.D. Tex. Dec. 4, 2015)

(O’Connor, J.). The case was dismissed for lack of subject-matter jurisdiction.

Mitchell again sued the United States Air Force in 2021, alleging the same facts but

employing a different legai theory than in his 2014 suit. See Mitchell v. Dep’t ofAir Force, No.

4:21-CV-912-Y (N.D. Tex. May 3, 2022) (Means, J.). In his 2021 suit, Mitchell alleges Fifth

Amendment, 42 U.S.C. § 1983, Administrative Procedure Act (“APA”), and Whistleblower

Protections Act violations. Id. Like his 2014 suit, the 2021 suit was also dismissed for lack of

subject-matter jurisdiction. Less than one month after the dismissal of his 2021 suit, Mitchell filed

the instant lawsuit, naming Secretary Kendall as the sole Defendant. The current lawsuit asserts

nearly identical claims as his 2021 suit, though Mitchell added a new claim for violation of due

process by Air Force Board for the Correction of Military Records (“AFBCMR”) Executive

Director Nicole D. Jackson (“Jackson”). (Pi’s Compl. at 7.) Mitchell now claims, in addition to

all the claims contained in his 2021 suit, that Jackson violated the Fifth Amendment’s Due Process

Clause by responding on the Secretary of Defense’s behalf to Mitchell’s AFBCMR appeal. Id.

Secretary Kendall argues he should prevail over Mitchell’s claims under the Feres doctrine,

because Mitchell has failed to meet his burden to identify a valid waiver of sovereign immunity,

1 The factual background is taken from Plaintiff’s complaint (“Pl.’s Compl.”) [doc. 1]. For the purposes of

this order, the Court presumes that all of Mitchell’s well-pleaded factual allegations are true.

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and because he “offers no well-pleaded factual allegations showing any entitlement to [] relief.”

(Defendant’s Motion to Dismiss (“Def.’s Mot”) at 6, 8,9.)

II.

LEGAL STANDARD

A. Rule 12(b)(1)

Federal courts are courts of limited jurisdiction and possess only that power authorized by

the Constitution and federal statute. Kokkonen v. Guardian Life Ins. Co. ofAm., 511 U.S. 375,

377 (1994). Parties “may neither consent to nor waive federal subject matter jurisdiction.” Simon

v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999). Federal Rule of Civil Procedure

12(b)(1) “allow[s] a party to challenge the subject matter jurisdiction of the district court to hear a

case.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). “The burden of establishing

subject matter jurisdiction [and resisting dismissal under Rule 12(b)(1)] rests upon the party

asserting jurisdiction.” Volvo Trucks N. Am., Inc. v. Crescent Ford Truck Sales, Inc., 666 F.3d

932, 935 (5th Cir. 2012); see also Settlement Funding, L.L.C. v. Rapid Settlements, Ltd., 851 F.3d

530, 537 (5th Cir. 2017). “If the record does not contain sufficient evidence to show that subject

matter jurisdiction exists, ‘a federal court does not have jurisdiction over the case.’” Settlement

Funding, 851 F.3d at 537 (quoting Howery v. Allstate Ins. Co., 243 F.3d 912,916 (5th Cir. 2001)).

B. Rule 12(b)(6)

The standard for a Motion to Dismiss under Rule 12(b)(6) Federal Rule of Civil Procedure

12(b)(6) authorizes courts to dismiss complaints when they fail to state claims upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). To defeat a Rule 12(b)(6) motion to dismiss, a plaintiff

must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Twombly, 550

U.S. at 556). The Court is not bound to accept legal conclusions as true. Iqbal, 556 U.S. at 67879. Only a complaint that states a plausible claim for relief survives a motion to dismiss.2

III.

ANALYSIS

A. Feres Doctrine

Secretary Kendall argues Mitchell’s claims are barred by the Feres doctrine because his

claims relate to his military service.3 (Def.’s Mot. at 7.) Under the Feres doctrine, the government

cannot be held liable for personal injuries that are incident to military service. Feres v. United

States, 340 U.S. 135, 146 (1950). If the Feres doctrine applies, the court does not have subjectmatter jurisdiction over the case and must dismiss it. Stanley v. Cent. Intel. Agency, 639 F.2d

1146, 1157 (5th Cir, 1981). The Fifth Circuit has broadly applied the Feres doctrine to 1983

claims that are incident to military service and Title VII claims that originate from military status.

Crawford v. Tex. Army Nat'l Guard, 794 F.2d 1034, 1035-36 (5th Cir. 1986); Brown v. United

States, 227 F.3d 295, 299 (5th Cir. 2000). The purpose of the Feres doctrine is to “immunize the

United States and members of the military from any suit which may ‘intrude in military affairs,’

‘second-guess[ ] military decisions,’ or ‘impair[ ] military discipline.”’ Miller v. United States, 42

F.3d 297, 302 (5th Cir. 1995) (quoting Stauber v. Cline, 837 F.2d 395, 398 (9th Cir.)).

In his latest suit before the Court, Mitchell complains that his due process rights were

violated when he appealed the AFBCMR’s findings to the the Secretary of Defense and Jackson,

the Executive Director of the AFBCMR, “usurped the [Secretary of Defense’s] authority and

2 Because Mitchell is a pro se litigant, the Court has a duty to liberally construe the pleadings and motions in

his favor. Thus, his papers are held to a less stringent standard than formal pleadings drafted by attorneys. See Haines

v. Kerner, 404 U.S. 519,520-21 (1972) (per curiam).

3 The Court will not address the 2021 suit’s claims that were previously dismissed under the Feres doctrine,

despite their repeated presence in the instant lawsuit. Accordingly, the Court will focus on Mitchell’s new, additional

due process violation claim against Jackson.

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provided [a] response on [the Secretary of Defense’s] behalf.” (Pl.’s Compl. at 7.) He claims

“[t]his action was not in accordance with Air Force Instruction 36-2603 [of the Whistleblowers

Protection Act] and is therefore in violation of the APA.” {Id. (internal citations omitted)) The

Air Force Instruction Mitchell relies on states, in pertinent part, as follows:

5.1. Decisions in Cases Under the Military Whistleblowers Protection Act.

The Secretary will issue decisions on such cases within 180 days after receipt of

the case and will, unless the full relief requested is granted, inform applicants of

their right to request review of the decision by the Secretary of Defense.

United States Dep’t of Air Force Instruction 36-2603, 5.1 (Mar. 1, 1996).

The undersigned finds Feres is applicable here and that this Court does not have subjectmatter jurisdiction to hear Mitchell’s claim for violation of due process. Mitchell’s latest claim is

incident to his military service, as he seeks to rectify alleged discrimination and reprimands in his

record. “[D]ue process claims .. . invite judicial second-guessing of military actions and tend to

overlap the remedial structure created within each service, which... provide an exclusive remedy

subject to review oniy under the arbitrary and capricious standard.” Crawford, 794 F.2d 1034 at

1036 (quoting Chappell v. Wallace, 462 U.S. 305 (1983). In sum, the Air Force Instruction and

the described actions of Jackson do not give rise to a Constitutional claim that may be heard by

this Court, as the personnel actions set forth are integrally related to the military’s unique structure.

See Mier v. Owens, 57 F.3d 747,750 (9th Cir. 1995). Similarly, in Mitchell’s 2014 case the court

found that “[t]here is no private right of action under 10 U.S.C. 1034,” and that, accordingly, the

court lacked subject-matter jurisdiction to hear any such claim. Mitchell, 2015 WL 12754905, at

*1-2 (quoting Acquisto v. United States, 70 F.2d 1010, 1011 (8th Cir. 1995)).

Based on the foregoing, the Court FINDS it lacks federal subject-matter jurisdiction under

Rule 12(b)(1) to hear this case and, accordingly, that Secretary Kendall’s Motion to Dismiss [doc.

31] on this matter should be GRANTED and all claims against him be DISMISSED.

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B. Claims for Damages

Secretary Kendall argues, "[i]n addition to the jurisdictional bar imposed by the Feres

doctrine, Mitchell’s complaint is also subject to dismissal to the extent it seeks money damages

because no waiver of sovereign immunity would allow such relief in this Court.” (Def.’s Mot. at

8.) It is well-established that waivers of sovereign immunity must be “unequivocally expressed.”

Lane v. Pena, 518 U.S. 187 (1996) (finding the statute in question did not with sufficient clarity

waive the federal government’s sovereign immunity from monetary damages and holding that the

Secretary of Transportation therefore was not liable for such damages). However, the Tucker Act

permits certain claims against the federal government, including, inter alia, noncontractual claims

where a plaintiff asserts he is entitled to payment by the government in excess of $10,000. 28

U.S.C. § 1491. The Tucker Act gives the United States Court of Federal Claims the following

exclusive jurisdiction:

[Tjo render 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, or for liquidated or unliquidated damages in cases not sounding in tort.

Id.

In his Complaint, Mitchell asks the Court to award him $ 1,000,000 damages to “accountj]

for the overall damage to [his] reputation, his career, and its impact on his family.” (Pl.’s Compl.

at 9.) The Court finds it does not have jurisdiction to award damages against the federal

government to Mitchell in this lawsuit, as Mitchell has wholly failed to plead any waiver of

sovereign immunity. Further, as stated above, Tucker Act jurisdiction lies with the Court of

Federal Claims. To the extent Mitchell seeks recovery from Secretary Kendall individually, it is

weii established that military personnel cannot sue superior officers to recover damages for alleged

constitutional violations because the “relationship between enlisted military personnel and their

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superior officers ... is at the heart of the necessarily unique structure of the Military

Establishment.” Mier, 57 F.3d at 750 (quoting Chappel, 462 U.S. at 300.).

Accordingly, the Court FINDS Secretary Kendall’s Motion to Dismiss [doc. 31] on this

jurisdictional basis should also be GRANTED.

IV.

CONCLUSION

For the reason set forth above, the Court RECOMMENDS that Secretary Kendall’s

Motion to Dismiss [doc. 31] be GRANTED pursuant to Federal Rule of Civil Procedure 12(b)(1)

and that the above-styled and numbered cause be DISMISSED.