Petition for Writ of Certiorari — Doe v. United States, 128 S. Ct. 288 (2007) (No. 07-93)

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Supreme Court, U.S.

Tay FILED

“O7- 93 JUL 19 2007

NO. __ 9 Frise OF THE CLERK

In The

Supreme Court of the United States

JOHN DOE,

Pro Se Petitioner

THE UNITED STATES,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appcals

For The Federal Circuit

PETITION FOR WRIT OF CERTIORARI

JOHN DOE

Dated: July 19, 2007

QUESTIONS FOR REVIEW

1. Whether the military departments are required to grant a

service member’s request to call as a witness for

confrontation and cross-examination the doctor authoring the

Government’s adverse written report used at the disability

hearing, which 10 U.S.C. § 1214 requires to be a “full and

fair hearing,” for which the Supreme Court has already

defined due process requirements (adequate for the

ascertainment of the truth) in Townsend v. Sain, as elaborated

by Goldberg v. Kelly (when there are issues of witness

credibility and veracity, written submissions are a wholly

unsatisfactory basis for decision)?

2. Whether 10 U.S.C. § 633 provides a property interest

under the due process clause of the Fifth Amendment by

giving a regular Air Force lieutenant colonel an “expectation

of continued employment” for 28 years of active-duty

commissioned service?

3. Whether the Department of Justice’s trial attorney and his

supervisors violated the trial court’s Rule 11 when (A) the

complaint stated only one doctor’s r. port was in the record

and that two documents (a second doactor’s statement and its

addendum written by a third doctor) were never in the

Air Force administrative record because the Air Force

intentionally withheld them from the administrative record

because they contained defects including intentional false

statements; (B) the trial attorney observed that the

administrative record the Air Force delivered to him was

missing those two documents; (C) the trial attomey was then

forced to insert only the one doctor's statement and omit

those two other documents from his response’s voluminous

appendix while attempting to mislead the trial judge into

thinking those two documents Were in the administrative

record: (D) Doe surprised the trial attorney with an exchange

of letters, in which the Air Force Freedom of Information Act

Manager reported months earlier that those two documents

were not in the administrative record; (E) the trail attorney

obtained copies of those two documents from working copixs

kept by the first doctor and then presented those copies to the

trail judge claiming falsely that those two documents were

always in the administrative record; and (F) the trial

attorney's supervisors continua’ ‘y ignored Doe’s letters

complaining of his misconduct?

TABLE OF CONTENTS

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TEXT OF CONSTITUTIONAL PROVISIONS

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. 10U.S.C.§ 1214 REQUIRES “FULL

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fl. 10 U.S.C. § 633 PROVIDES A PROPERTY

INTEREST UNDER DUE PROCESS

CLAUSE OF THE FIFTH AMENDMENT

WITH RIGHT TO CONFRONT AND

CROSS-EXAMINE ADVERSE

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[t]l. DEPARTMENT OF JUSTICE’S TRIAL

ATTORNEY AND HIS SUPERVISORS

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TABLE OF AUTHORITIES

CASES

Demenech v. Secretary of the Department

of Health andHuman Services,

FID F.28 SOe CIC APIO), ic ceccccecccses.

Doe v. Garrett, 903 F.2d 1455, 1462

Ce a

Doe v United States, 66 Fed.Cl. 165

SO sila ccrlcniti deceit tesa chegian uni deiars

Goldberg v. Kelly, 397 U.S. 254,

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Greene v. McElroy, 360 U.S. 474,

TF We RACES YG ks scrcsscsersetanitinassescones

Lidy v. Sullivan, 911 F.2d 1075, 1077

re i ee.

Norman v. United States, 183 Ct.Cl. 41.

Pe Be ate Ps hide sire bands tvisacsvoaane

Perez v. United States, 156 F.3d 1366

(Se SR ENE a? HE PR Wr On ASE ee

Perry v. Sindermann, 408 U.S. 593 (1972) 2.2.0.0... cece.

Richardson v. Perales, 402 U.S. 389 (V971)..000

Townsend v. Sain, 372 U.S. 293 (1963)........

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...20, 21, and 23

OPTED om

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NRE 27 and 28

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Wallace v. Bowen, 869 F.2d 187, 192

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US CONSTITUTION

ERE AS EAMETS ]-2, 25, 27, and 28

ESE ICR TOOLS ET RARE OR AEE 21

FEDERAL STATUTES

5 U.S.C. §§ 706 (“Administrative Procedure Act”

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10. U.S.C. § 633 et seq...............20ceeed) 25, 20, 27, and 28

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MISCELLANEOUS

Air Force Instruction (“AFI”) 36-3212......2-3. 19. and 24-25

Freedom of Intormation Act (“FOIA’)...................0. 008. [8

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Dee I i a a 1,3, 17, 29, and 30

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5 Wigmore on Evidence (3d ed. 1940) § 1364.............21-22

PETITION FOR WRii «| F CERTIORARI

OPINIONS AND ORDERS BELOW

This case is under seal in both the trail court and court

of appeals, but this petition is carefully worded so that it

can be made public. Petitioner appeals (1) the unreported,

nonprecedential two-sentence April 5, 2007 Judgment

(at appendix pages | and 2 (“A1-A2”)) of the United States

Court of Appeals for the Federal Circuit (“Fed. Cir.”) which

Judgment affirmed the Judgment (A35) and Opinion

(A4-A34) of the United States Court of Federal Claims

(“CFC”) which opinion is reported at Doe v. United States,

66 Fed.Cl. 165 (2005), denying petitioner’s appeal of the

unpublished decision of the Air Force Board for Correction

of Military Records (“AFBCMR”) and (2) the unreported

February 15, 2005 one-sentence CFC Order (A3) of

Judge Braden denying petitioner’s motion for Rule | 1

sanctions, which CFC Order the Fed. Cir refused (A36)

petitioner's request for rehearing to issue an Order disposing

of petitioner’s appeal of that CFC Order.

JURISDICTION

Jurisdiction for this petition for writ of certiorari arises

under 28 U.S.C. § 1254(1) to appeal the April 5, 2007

Fed. Cir. Judgment discussed above. The Fed. Cir. filed on

May |, 2007 its very brief unpublished, nonprecedential

Order denying petitioner's request for rehearing and to issue

a disposition of petitioner's appeal of Judge Braden’s Order

denying Rule | 1 sanctions.

TEXT OF CONSTITUTIONAL PROVISIONS,

STATUTES, REGULATIONS, AND RULES

FIFTH AMENDENT TO THE U.S. CONSTITUTION

‘No person shall be ... deprived of life, liberty, or

property, without due process of law; ....”

5 U.S.C. § 706

(See appendix at A38.)

10 U.S.C. § 633

“Except an officer of the navy or Marine Corps who ts an

officer designated for limited duty to whom section 5596(e)

or 6383 of this title applies and except as provided under

section 637(b) of this title, each officer of the Regular Army,

Regular Air Force, or Regular Marine Corps who holds the

regular grade of lieutenant colonel, and each officer of the

Regular Navy who holds the regular grade of commander,

who is not on a list of officers recommended for promotion to

the regular grade of colonel or captain, respectively, shall, if

not earlier retired, be retired on the first day of the month

after the month in which he completes 28 years of active

commissioned service.”

10 U.S.C. § 1214

‘No member of the armed forces may be retired or

separated for physical disability without a full and fair

hearing if he demands it.”

28 U.S.C. § 1491(b)(4)

(4) In any action under this subsection, the courts shall

review the agency's decision pursuant to the standards set

forth in section 706 of title S”

Paragraph 3.2 of Air Force Instruction (“AFI”) 36-3212

“3.2. Legal Basis for Formal Hearings. The FPEB

provides the full and fair hearing required by 10 U.S.C. 1214

for members recommended for a disability discharge or

retirement.”

AFI 36-3212 Definition of “Full and Fair Hearing”

“Full and Fair Hearing-A hearing held by a board,

before which the Service member has the right to make a

personal appearance with the assistance of counsel and to

present evidence in his or her behalf.”

Rule 11 of the Rules of the United States Court of Federal

Claims (“RCFC”)

(See appendix at A39-A40.)

STATEMENT OF THE CASE

This case arose in the CFC under 28 U.S.C. § 149]

jurisdiction when pro se petitioner (“Doe’’) requested review

of the AFBCMR decision, which denied Doe's

10 U.S.C. § 1552 administrative claim to rescind the decision

of the Air Force Formal Physical Evaluation Board (“FPEB”)

determining Doe was unfit due to medicai disability.

Jurisdiction for Doe’s appeal to the Fed. Cir. arose under

28 U.S.C. § 1295(a)(3).

Per guidance from the Clerk of the Supreme Court on

(1) how to treat this case under seal in the CFC and Fed. Cir.

and (2) keep this petition a public document, pro se petitioner

wrote this petition referring in general terms to documents

and facts that are under seal and omitted those documents

from the appendix. Only public documents are included tn

the appendix except those. such as Doe’s published papers,

which would reveal his identity.

This Court should be aware that Judge Braden’s opinion

(A4-A34) contains much misinformation, which she

extracted from hearsay statements contained in the written

report of a resident (training to become a psychiatrist), whom

Doe was not allowed to cross-examine at his “full and fair

hearing” to expose the misinformation he wrote. The judge

and resident mention documents, many of which were never

in the administrative or court records and which, if they even

existed, were never seen by anyone involved in the disability

adjudication. So, here is the real story from the record.

If faster-than-light (“FTL”) particles were ever discovered

in the laboratory, one could telegraph messages into his past

and foresee the future. See, for example, F. A. E. Pirani,

Phys. Rev. D 1, 3224 (1970); G. A. Benford et al., Phys. Rev.

D 2, 263 (1970), and R. G. Newton, Science 167, 1569

(1970), copies of which are in the administrative record.

Professor Newton, supra, wrote “If such particles exist, some

basic assumptions of physics will have to be abandoned.” He

conciuded that relativity theory and quantum mechanics (the

twin pillars underlying all physics) would have to go by the

board. The Causality Principle underlying relativity and

quantum mechanics would be destroyed.

On page 94 of his May 1985 interview in Omni,

Nobel-Prize-winning physicist Murray Gell-Mann (one of

the many Nobel prize winners on the board of editors of the

international physics journal that published Doe's scientific

papers) stated, “The laws of the elementary particles and of

the universe underlie all of science. including all of physics.

astronomy, chemistry, geology. biology, psychology, and in a

sense even social science.” He added. “One can in principle

reduce social science to individual psychology: reduce

individual psychology to biology; reduce biology to

chemistry: reduce chemistry to physics: and then reduce

physics to elementary particle and cosmological physics.”

So, a discovery of FTL particles would upset the whole

structure of the knowledge of man. But, as Professor Newton

concluded in his paper cited above, “The final answer, of

course, rests with the experimentalist.”

After graduating from West Point and while a university

student waiting for guest lecturer Wigner (colleague of

Einstein and one of the many Nobel Prize winners on the

board of editors of the physics journal that would later

publish Doe % scientific papers on the discovery Doe was

about to make that same day), Doe walked into the physics

library across the hall to examine the paper on the anti-proton

experiment (O. Chamberlain, E. C. Segre et al., Phys. Rev.

100, 947 (1955)), which earned the 1959 Nobel Prize for

Segre and Chamberlain. That paper’s Figure 3 presented

histograms of time-of-flight data for both the anti-proton

nuclear particles and the accompanying pi mesons (“‘pions”

or simply “mesons”’). Doe’s quick calculations in his head

revealed those pions were traveling FTL. Milhons of FTL

pions were knocked loose 21 degrees in the forward direction

when the high-energy particle accelerator slammed the

4.3-GeV-to-6.2-GeV protons against the one-inch cubed

target. Later that night, Doe discovered miscalculations and

other errors, which Doe believes Segre and Chamberlain

intentionally made to conceal the FTL velocities.

After confronting Segre and Chamberlain and getting no

reply, Nobel Prize winners on the board of editors decided to

publish Doe’s first paper on the FTL pions.

A few years later, that same journal published Doe’s

second paper exposing many more false statements Segre and

Chamberlain had written. That paper also demonstrated one

could build a Pirani device in the laboratory using the FTL

pions to send messages backward in time to that device so

that one could foresee an earthquake 26 minutes in the future.

Back in 1955, if Segre and Chamberlain had announced to

the world that. in addition to producing anti-protons, their

experiment also produced FTL mesons, their experiment

would have been doubted. and they would never have won

the Nobel Prize. They would have been persecuted and run

out of the scientific community. Had Segre and Chamberlain

elected instead to challenge Einstein’s prohibition against

FTL particles and risked the wrath and condemnation of the

scientific community, in a different era and in a different

century, scientific establishments of the future would have

denounced the critics and persecutors and heaped upon Segre

and Chamberlain their eternal gratitude and the eternal fame

that transcends the winning of the Nobel Prize. Segre and

Chamberlain would have been credited with performing the

experiment that completely changed our understanding of the

laws of the universe and ushered in such revolutionary

concepts as Superrelativity, anti-gravity, and traveling

backward in time. They would have been ranked right up

there with Galileo and Columbus. School kids centuries later

would have celebrated their achievement and recounted their

persecution and suffering.

Unlike Segre and Chamberlain, Doe could champion FTL

mesons because Doe, who had no doctorate or masters

degree, had no reputation to lose and no scientific career to

be destroyed. When the editors asked Doe to write that

second paper, Doe was just a junior officer attending

Squadron Officer School by order of the Commander,

22d Combat Support Group (“CSG”). During his four-year

tour of duty with 22d CSG, Doe, who is single with no

dependents, was on orders as a member of a team the

22d CSG would first send into combat situations around the

world until the rest of the CSG could join them on the

battlefield. Doe was required to keep with him at all mes a

flight bag with his combat gear to grab and jump on a jet

within an hour whenever the call came in the middle of the

night (as it often did). Doe picked up many medals during

those four years and shortly thereafter was selected by the

promotion board in the top 10° o of all majors and ordered to

attend Air Command and Staff College ("ACSC") in

residence. Resident ACSC graduates comprise the limited

pool from which the Air Force selects tts future generals.

On July 6, 2006, physicist Nikolay Alexeev, on behalf of

Director Boris Sharkov, wrote Doe that a group of Russian

physicists from his nuclear laboratory had read Doe’s papers

on FTL particles and time-travel device and would contact

Doe about performing the FTL experiment at the State

Science Center of the Russian Federation - Institute of

Theoretical and Experimental Physics (“ITEP”) in Moscow.

Subsequently, physicist Vyacheslav Zhabitsky wrote

appellant that he is contacting other Russian physicists about

performing the experiment at the Joint Institute for Nuclear

Research (“JINR”) at Dubna (a suburb of Moscow), where

Dr. Zhabitsky had previously been the Chief Scientific

Secretary scheduling experiments there.

Immediately after confirming the existence of the FTL

mesons, Doe intends to do a second experiment at JINR.

Doe and the Russian physicists working with him will alter

the 1955 experiment to determine the new equations

replacing the current Lorentz equations, upon which

relativity is based. By altering the settings on the magnets

and reconfiguring the timing devices, the experiment’s

equipment will accept FTL mesons with different flight-path

curvatures corresponding to different momenta centered

around 1.19 GeV/c. By pairing up these differing momenta

to the differing FTL particle velocities independently

measured by time-of-flight instruments, Doe and the

Russians can use regression analysis on the paired data

(momentum velocity) to determine the new equations

(probably the Recami-Mignani equations) underlying this

new physics, which some physicists call “Superrelativity.”

Another reason for believing the 1955 experiment will

produce FTL mesons 1s Doe's draft manuscript on the strong

nuclear force which he intends to publish after the

confirmation of the FTL mesons and that second experiment

deducing the new equations. Yukawa won the Nobel Prize

for his theory of the strong nuclear force whereby two

nucleons can bind together by continuously exchanging one

or more pions within the observational limits of the

Heisenberg Uncertainty Principle (H. Yukawa, Proc. Phys.

Math. Japan 17, 48 (1935)). Since then, more sophisticated

nuclear instrumentation has developed empirical data, which

reveal that Yukawa’s macroscopic model fails to explain

many phenomena: (1) The range of the nuclear force extends

beyond the limit of the equations for Yukawa’s macroscopic

model when they are revised to account for relativistic meson

velocities. (2) Furthermore, for proton-neutron interactions,

empirical data show the potential for the strong nuclear force

cuts off precisely at 2.0 fenta-meters (“F’’). (3) Yukawa’s

macroscopic model cannot explain why the strong nuclear

force is adequately described by only the one- and two-pion

exchange potentials for distances greater than approximately

0.7 F between the nucleons. (4) Yukawa’s macroscopic

model cannot explain why, below this distance of 0.7 F, the

possibility for many-pion exchanges rapidly becomes much

greater. (5) The equations for Yukawa’s macroscopic model

can't explain the odd shape of the potential’s curve or the

values of the potential throughout the range. (6) The

equations for Yukawa’s macroscopic model can’t explain

why the strong nuclear force changes from repulsion to

attraction or (7) why this transition occurs below 0.7 F. After

modifying the Yukawa macroscopic model by using the

Recami-Mignani equations to account for FTL pion

velocities and then allowing the revised Yukawa model to

use pions traveling at all possible velocities slower than and

faster than the speed of light. Doe's revised model explains

all seven of these empirically observed discrepancies.

Doe's breakthrough in his new superrelativistic model

for the strong nuclear force was to integrate the

Recami-Mignani equations to get

fdv (v7 )-1) = In wee)" 7-1) *)

After integrating over the appropriate range, Doe got E,y/Eo,

the average total energy at v divided by the rest energy, as

follows:

E,./Eo = 0.88137359 c - In ((v/c)+((v7/c7)-1)'”)

14142136 — (v/c)

Plugging in the range of numbers, Doe matched exactly the

empirically observed Lomon values displayed in their graph

at E. Lomon et al., Phys. Rev. Letters 6, 635 (1961).

Comparing those numbers (the Lomon empirical values to

the numbers generated by Doe’s new model) inspires Doe

with 100% confidence that his experiment will produce a

stream of FTL mesons.

Once Doe empirically determines the equations underlying

Superrelativity, Doe can use his engineering skills to build a

device to send messages backward in time and predict the

future like the device Doe described in his second paper.

Shortly after Doe’s second paper was published and

covering a period of two decades, neighbors often reported to

Doe that they had observed intruders masquerading as utility

men searching through Doe’s home, yet Doe could find

nothing missing. Every time Doe would move to a new

assignment, within a few weeks, he’d find a putty substance

in the locks to his new home. For example, on

October 20, 1987, when Doe was living in Redondo Beach,

CA, Doe’s neighbor greeted him after Doe parked his car in

his garage. The neighbor told Doe a man dressed as a utility

man had been rummaging around in Doe’s apartment. When

the intruder saw the neighbor, he came out and. in front of

the neighbor, wrote on the door a note on a card (which is

part of the administrative record) with GTE logo and left it

on Doe's front door. When Doe asked the neighbor how the

intruder got a key to Doe's home, the neighbor stated he

didn’t know. Doe telephoned GTE offices. which referred

Doe to the telephone number (826-9611) to Mr. Gonzalez.

the real GTE utility man servicing that area that day. Mr.

Gonzalez told Doe that no one from GTE had been to Doe’s

home that day. Nothing was missing that day or in any of the

other break ins spanning two decades.

The resident smeared Doe with a 1988 incident. Segre

was a founding father of a major national laboratory and

close friend with its directors. The directors falsely claimed

to the Air Force that Doe was mentally 1ll because he

believed in FTL particles and time trave!. The psychiatrist,

who told Doe they had lied to and grossly misied the

Air Force, cleared Doe. Later, investigators doing a

background check, including that incident, also cleared Doe

for upgrade of his security clearance to Top Secret.

Judge Braden repeated misleading information from the

resident’s report about a jealous woman’s false allegation of

sexual harassment against Doe. Judge Braden and the

resident wrote about a Letter of Admonishment (“LOA”) and

a reprimand, but no such documents were ever part of Doe’s

military records or part of the administrative record or court

record. Although a general initially wrote the LOA, he later

tore it up so that it never got into Doe’s military records. The

resident did a smear job on Doe writing about a document he

never saw.

Seeking acknowledgment for his contribution, Doe wrote

President Clinton two friendly letters (which were never in

the administrative or court records and which no one in the

Air Force or judicial system has ever seen, yet feel free to

describe with false statements and mischaracterizations). A

member of the White House staff telephoned Doe’s boss

denying that the President had ever used ideas from Doe's

Air War College (“AWC”) paper and directing him to

compel Doe to undergo psychiatric evaluation (leading to

discharge from the Air Force) (A8&).

On November 13, 1998. a Medical Evaluation Board

(“MEB”) in California (“first MEB”) determined Doe should

be retired for disability due to the diagnosis of delusional

disorder in the written Narrative Summary of an Air Force

psychiatrist and its addendum (a written Narrative Summary

by another Air Force psychiatrist) (“two documents”). Those

two documents were filled with lies including those (a series

of paragraphs) that two colonels together in the first

psychiatrist's office had warned her were false (which she

had totally fabricated). Despite that warning, she kept all

those lies in her final report. After Doe wrote a lengthy letter

complaining about the psychiatrist’s misconduct, a third

colonel (MEB President) and fourth colonel (Head of the

MEB administrative staff) rescinded the first MEB

determination and arranged for Doe to undergo a new

“clean slate” psychiatric evaluation at Wilford Hall Medical

Center (“WHMC’’) in Texas without the taint of the previous

two psychiatric reports.

At WHMC a resident (“resident”) (A10), training to

become a psychiatrist, interviewed Doe for only one hour.

The resident was new to the Air Force. Somehow, he got a

hold of a copy of those two tainted documents. His report

was filled with a pack of lies repeated from the report of the

discredited psychiatrist. He committed malpractice, ignored

the evidence Doe tried to show him, ignored observations

Doe’s bosses tried to convey to the resident in his telephone

calls to them, ignored the results of the 4-hour test that

showed Doe was not mentally ill, and frustrated the efforts of

the two colonels from the first MEB not to taint the process

with the two documents. On the issue of fitness, all the

evidence the resident had — conversations with Doe's bosses.

written appraisals, letters of commendation, etc, -

demonstrated that Doe’s work performance was always

outstanding. Analogous to a “new trial.” the resident's

January 13, 1999 Narrative Summary started a new disability

process without the documentation from the first MEB.

Based solely on the resident's report (without copies of the

two documents) and without Doe's input. the WHMC MEB

(“second MEB”)(A10) issued its January 28, 1999

determination that Doe should be retired for disability.

Judge Braden has mistakenly confused these two MEBs into

one MEB. The first MEB and the documents it had were

never part of the administrative record. The second MEB

report was affirmed by the WHMC Informal Physical

Evaluation Board (“IPEB”) (Al1), which issued its adverse

determination on February 23, 1999 after allowing Doe to

submit a written letter.

Doe appealed the IPEB decision to the FPEB, which on

April 2, 1999 denied Doe’s lawyer’s April 1, 1999 written

request to call the resident (only a mile away) as a witness to

the FPEB hearing. On April 9, 1999, after reading the

resident’s report (without the two documents in evidence),

denying Doe’s objection that the resident was not called to

testify, and listening to Doe’s brief testimony explaining

Doe's belief that the President used Doe’s ideas, the FPEB

issued it’s written adverse determination. (A12).

On May 19, 1999, the Secretary of the Air Force Personne]

Council (“SAFPC”) (A12-A13) without a hearing affirmed

the FPEB determination.

The Air Force involuntarily retired Doe for disability

officially on August 19, 1999 (A13) after he had taken his

accrued leave.

On June 2, 1999, just before Doe’s last work day, a colonel

handed Doe a referral Officer Performance Report (“OPR”)

(A14-A15) rebuking Doe for making false accusations

against the President. Doe had for months been removed

from his position and had been shunned. Doe did not get the

customary retirement ceremony and luncheon or the

retirement medals. etc. |

On June 4. 1999, as Doe was completing his last work day.

Doe handed his lengthy rebuttal to the general (OPR

reviewer). That general and colonel were the first people to

actually evaluate Doe’s claim. They also had the

professional competence to make that evaluation because

they were certified experts in military strategy (like Doe. all

generals, and less than 10% of all senior field grade officers),

having graduated from ACSC or AWC in residence. (Doe

was an outstanding graduate of AWC.)

Months later, Doe discovered the general and colonel had

revoked the referral OPR and issued a new OPR praising Doe

as a““visionary.” Many months after that, Doe received a big

brown package the general had mailed to Doe’s last known

address. The package was filled with medals, decorations,

and awards with effusive praise of Doe. Al4-A15.

Only a brief summary of the evidence that the President

used Doe’s ideas can be provided here.

On January 4, 1994, Doe submitted his AWC paper, which

criticized the generals and other “experts” as incompetent

and criticized Senator Sam Nunn’s August 1992 hearings,

which concluded air power would prove ineffective and no

military solution could stop the daily killing in the Balkans.

For example, Sam Nunn lacked the military skill to ask

penetrating questions to unmask the errors of the Department

of Defense (“DoD”) experts. When the DoD experts testified

that Serbian surface-to-air missiles (“SAMs”) would stop

U.S. aircraft, Sam Nunn should have asked them whether

EF-111s and EA-6s could have blinded Serbian early

warning radar and SAM radar, whether F-4G’s could have

nullified Serbian SAM effectiveness, whether strategic

bombing by TL AMs and F-117s and other aircraft could

have silenced the SA-7s and SA-9s, whether flying at high

altitudes would evade the remaining medium and

low-altitude SAMs, whether cutting their electricity off

would disrupt SAM operations, whether cutting off

communications to their tactical control centers and

headquarters would spread confusion among the SAMs, etc.

Doe’s AWC paper demonstrated how the military strategy

could demonstrate to Milosevic that all his military capacity.

industrial production facilities (and tax base), and supporting

infrastructure would be destroyed if Milosevic did not agree

to stop the genocide. Attached to that AWC paper was a

voluminous printout of Doe’s computer simulation using the

AWC software demonstrating in exact detail how the military

strategy would work (which jets with which munitions on

which targets and in what sequence with what percentage of

destruction for each target). The U.S. would suffer only one

combat loss — one jet.

On January 30, 1994, President Clinton called Nunn to the

Oval Office, after which Nunn held a news conference.

Abandoning all his conclusions from August 1992, Nunn

articulated a radical new strategy for Bosnia. He abandoned

the objectives the U.S. had had for decades and articulated

verbatim the three radical new objectives Doe had written on

pages |7 and 19 of his AWC paper. Nunn’s new

air-power-alone strategy used all Doe’s policy changes and

military tactics, identifying all of Doe’s targets.

On February 6, 1994, President Clinton called his

Secretaries of Defense, State, and Treasury to a National

Security Council (“NSC”) meeting to explain to them the

new strategy.

Immediately, all the military experts condemned the new

strategy. Chairman of the Joint Chiefs of Staff (“CJCS”)

of the Air Force (“CSAF”) General McPeak condemned the

strategy saying he didn't understand it and didn’t know

where Clinton could have gotten such a wrong strategy. A

year later, when Clinton implement that strategy, he had to

relieve the Air Force general and Navy admiral in charge of

the air attack for insubordination for refusing to carry out the

bombings. After the war had progressed exactly as Doe's

computer simulation had predicted, Milosevic begged for

peace and agreed to the Dayton Accords to the amazement of

everyone (except Doe and Clinton).

A few years later. conflict resurfaced in Kosovo, where

Clinton tried to use the old strategy without accounting for

the changed conditions and got himself into trouole. On

March 31, 1999, Doe wrote the White House a letter adding

one new objective and numerous changes to the strategy

detailing the specific target changes. Within days, Clinton

announced that one new objective verbatim and implemented

the target changes. The JCS, particularly CSAF Ryan,

denounced the new changes and testified they would lead to

disaster with pilots being shot down everywhere. The

generals asked publicly where Clinton was getting all these

sophisticated military ideas. General Clark went around

Clinton’s back and was unsuccessful in persuading NATO’s

political leaders to resist Clinton’s new strategy. Again, to

the amazement of everyone (except Doe and Clinton),

Milosevic begged for peace and stopped the genocide. For

the first time in history, a military campaign had been fought

with zero combat deaths for the victor.

After unsuccessfully appealing to the AFBCMR

(A13-A15), which provided no hearing, Doe unsuccessfully

appealed to the CFC (A4-A34). From February 14, 2005

through May 30, 2005, Judge Braden and others perpetrated

an elaborate fraud to keep her written opinion from Doe and

deny him the opportunity to appeal. Many months later,

when Doe discovered the fraud, he wrote Judge Braden a

short letter explaining that her actions were prophesied in the

Bible. She put the letter in the record and issued a new

Judgment (A35) allowing Doe to appeal.

Scattered throughout the Old and New Testament are

numerous related prophecies about an event in the far future

when the whole world will be stunned by a “work” - the

wisdom of the wise will be destroyed after many disbelieve a

man pointing out these prophesies.

An appropriate staring point is prophecy written decades

after the Crucifixion. Acts 13:40-41 predicts, “Beware

therefore, lest that come upon you, which 1s spoken of in the

prophets: Behold you despisers. and wonder. and perish: for |

work a work in your days, a work which ye shall in no wise

believe, though a man declare 1t unto you.”

What ts this “work” that the man will declare “in your

days” to the target audience who will in “no wise” believe?

[saiah 29:14, among many other prophecies, defines this

“work” as follows: “Therefore, behold, | will proceed to do a

marvellous work among this people, even a marvellous work

and a wonder: for the wisdom of their wise men shall perish,

and the understanding of their prudent men shall be hid.”

As for Judge Braden’s actions, Habakkuk 1:4-5 predicts,

Therefore the law is slacked, and the judgment

doth never go forth; for the wicked doth

compass about the righteous; therefore wrong

judgment proceedeth. Behold ye among the

heathen, and regard, and wonder

marvellously: for | will work a work in your

days, which ye will not believe, though it be

told you.

That prophecy describes the delaying motions and rulings

and shenanigans she, the trial attorney, and others perpetrated

to defeat Doe’s motion for judgment and allow the U.S.’s

“wrong judgment” to proceed, and predicts the

wisdom-destroying experiment that will soon follow.

That same theme is repeated in numerous other prophecies

including Isaiah 59:14-16, which reads as follows:

And judgment is turned away backward, and

justice standeth afar off: for truth ts fallen in

the street, and equity cannot enter. Yea, truth

faileth; and he that departeth from evil maketh

himself a prey: and the Lord saw it. and it

displeased him that there was no judgment.

And he saw that there was no man, and

wondered that there was no IMtercessor:

therefore his arm brought salvation unto him:

and his righteousness. it sustained him.

That prophecy describes a man, who is a plaintiff (not a

defendant) in a formal court setting seeking an ever clusive

judgment in a civil (not cnminal) action. The man is an

unrepresented pro se plaintiff (“no intercessor’). With truth

unfairly blocked by that judicial system, the man is smeared

with lies. As he tries to rid himself of one evil doer, another

evil doer pounces on him. After the court denies the man

justice, God intervenes and brings the man justice outside the

court. The truth will come out after completion of the

“work” — the event destroying the wisdom of the wise.

That theme that the man will eventually be victorious ts

repeated again and again in many prophecies. See, for

example, Isaiah 44:25-26, which states, “That frustrateth the

tokens of the liars, and maketh diviners mad; that turneth

wise men backward, and maketh their knowledge foolish:

That confirmeth the word of his servant,...."" The experiment

destroying the wisdom of the wise is the key to the man’s

salvation, getting the truth out, and shaming his enemies.

There are too many prophecies to quote here.

Doe appealed to the Fed. Cir. (1) the CFC’s judgment and

final memorandum order granting U.S.’s motion for

judgment upon the administrative record pursuant to RCFC

Rule 56.1 and (2) the order denying Doe’s motion for RCFC

Rule 11 sanctions. The Fed. Cir. affirmed (A!-A2) the CFC

judgment but refused (A36-A37) a rehearing to issue a ruling

on Doe's appeal of the RCFC Rule || Order.

Doe’s complaint in the CFC alerted the trial attorney that

two documents (the second doctor's report accompanied by

the third doctor's addendum) were kept with the first doctor's

(resident's) working papers at WHMC, but that the Air Force

had intentionally omitted those flawed documents from the

Air Force administrative record. The trial attomey observed

first hand that the administrative record the Air Force had

delivered to his office had only one doctor's statement - the

resident's, not those of the second and third doctors.

] 7

Because of that limitation, he inserted a copy of the

resident's report into his motion’s appendix, but was forced

to omit the other two documents. Despite this knowledge,

the trial attorney attempted in his responsive motion to trick

Judge Braden into thinking that the administrative record had

more doctors’ statements than the one.

Doe caught the trial attorney red handed and surprised him

with Doe’s exchange of letters with the Air Force FOIA

Manager. Doe’ FOIA request quoted the ambiguous words

(like “opinions” (plural), “medical records” (plural),

“summaries” (plural), etc. (used also in the singular)) from

the AFBCMR, SAFPC, and FPEB determinations and asked

for a copy of all written doctors reports other tlian the

resident’s report in the administrative record before those

three boards. The FOIA Manger reported back that he had

conducted a thorough search and had discovered no other

doctor’s reports — and not the two documents.

Despite this knowledge of the FOIA Manager's explicit

negative finding and the quotation of those ambiguous terms

in the request letter, the trial attorney persisted in claiming

those ambiguous terms meant that the two documents were in

the administrative record, went to WHMC, where the

resident kept his working papers, got those copies of the twe

documents, put them into the CFC court record — twice (!),

and fraudulently represented to Judge Braden that those two

documents were in the Air Force administrative record. The

trial attorney's supervisors continually ignored Doe's letters

to them complaining about the trial attorney s misconduct.

ARGUMENT

I. 10 U.S.C. § 1214 Requires “Full and Fair Hearing”

with Right to Confront and Cross-examine Adverse

Witness

Commentators have often remarked that the overwhelming

majority of American society does not bear any of the burden

of fighting the war on terror leaving that burden for the

service members. Tens of thousands of those service

members return from that war either in flag-draped coffins or

with psychological or physical injuries. Some have their

faces torn away or have their arms or legs blown off, while

many others have lesser injuries not shared by those civilians

wearing flag pins on their lapels. Those injured service

members, wanting to remain in the military, often face boards

determining whether their injuries make them unfit for

military service. Some, like General Shinseki, who lost his

foot in Vietnam as a junior officer, convince those boards

that their injuries do not make them unfit for military service.

Recognizing that service members often desire to reinain

on active duty, Congress, passed 10 U.S.C. § 1214, which

provides, “No member of the armed forces may be retired or

separated for physical disability without a full and fair

hearing if he demands it.” The phrase “if he demands it”

establishes that Congress, who many of its members

personally know the hardships of serving in the military,

created this right as a benefit for the service member.

Congress felt service members deserved more than just a

“fair hearing.” They deserved something much more.

Congress felt service members deserved a full and fair

hearing. So, what ts this “full and fair hearing?”

AFI 36-3212 requires that the FPEB hearing serve as this

“full and fair hearing;” so, if that FPEB hearing is not “full

and fair,” then the Air Force has no legal authority to retire or

separate the service member for unfitness due to disability.

Silent about Doe’s argument, Judge Braden and the

Fed. Cir. indirectly held (A23 and A25) that the requirements

of a “full and fair hearing” did not require the FPEB to grant

the April |. 1999 written request of Doe to call the resident

(only a mile away) as a witness to his April 9, 1999 FPEB

hearing. These judges have decided an important federal

question in a way that conflicts with relevant Supreme Court

decisions, discussed below. Furthermore, these judges have

decided an important question of federal law that should be

settied by the Supreme Court, especially since the war on

terror will probably last decades and inflict injuries on many

more service members.

In Townsend v. Sain, 372 U.S. 293 (1963), this Court, in a

habeas corpus case, decided what a “full and fair hearing”

required. This Court established six tests for federal courts to

measure the adequacy of state court procedures. The third

test was “(3) the fact-finding procedure employed by the

state court was not adequate to afford a full and fair hearing;

.... Townsend at 313. At page 316, this Court elaborated on

test 3 stating, “Even if all the relevant facts were presented in

the state-court hearing, it may be that the fact-finding

procedure there employed was not adequate for reaching

reasonably correct results.” It added at 316, “Even where the

procedure employed does not violate the Constitution, if it

appears to be seriously inadequate for the ascertainment of

the truth, it is the federal judge’s duty to disregard the state

findings and take evidence anew.” (Doe’s emphasis.) So, a

test for “full and fair hearing” is whether its procedures are

adequate for the ascertainment of truth, independent of

whether or not those procedures violate the Constitution.

This test concerning what is inadequate for the

ascertainment of truth was defined by this Court in

Goldberg v. Kelly, 397 U.S. 254 (1970). At page 269, this

Court wrote, “Particularly where credibility and veracity are

at issue, as they must be in many termination proceedings.

written submissions are a wholly unsatisfactory basis for

decision.” (Doe's emphasis.) It added at page 269, “In

almost every setting where important decisions turn on

questions of fact, due process requires an opportunity to

contront and cross-examine adverse witnesses.”

Together. the Goldberg and Townsend Courts require that

a hearing ts nota “full and fair hearing™ if it is inadequate for

the ascertainment of truth because the decision-maker denied

the opportunity to confront and cross-examine adverse

witnesses, who's credibility and veracity were at issue, and

instead relied on written submissions.

Goldberg justified its holding quoting extensively from

Greene v. McElroy, 360 U.S. 474 (1959). At pages 496-497,

the Greene Court wrote as follows:

Certain principles have remained relatively

immutable in our jurisprudence.... [I]t is even

more important where the evidence consists of

the testimony of individuals whose memory

might be faulty or who, in fact, might be

perjurers or persons motivated by malice,

vindictiveness, intolerance, prejudice, or

jealousy. We have formalized these

protections in the requirements of

confrontation and cross-examination. They

have ancient roots. (Lengthy footnote

omitted.) They find expression in the

Sixth Amendment which provides that in all

criminal cases the accused shall enjoy the

nght “to be confronted with the witnesses

against him.” This Court has been zealous to

protect these rights from erosion. It has

spoken out not only in criminal cases, e. g.,

(lengthy citations omitted), but also in all

types of cases where administrative and

regulatory actions were under scrutiny.

(Lengthy citations omitted.)

At footnote 25 on page 497. this Court remarked.

“Professor Wigmore explains in some detail the emergence

of the principle in Anglo American law that confrontation

and cross-examination are basic ingredients in a fair trial.

5 Wigmore on Evidence (3d ed. 1940) § 1364.” It added at

497-499 the following:

Professor Wigmore, commenting on the

importance of cross-examination, states 1n his

treatise, 5 Wigmore on Evidence (3d ed.) §

1367: “For two centuries past, the policy of

the Anglo-American system of Evidence has

been to regard the necessity of testing by

cross-examination as a vital feature of the law.

The belief that no safeguard for testing the

value of human staternents is comparable to

that furnished by cross-examination, and the

conviction that no statement (unless by special

exception) should be used as testimony until it

has been probed and sublimated by that test,

has found increasing strength in lengthening

experience.”

Doe was denied that opportunity to demonstrate the

deficiencies in the resident’s written report from the

resident’s own mouth.

A superficial analysis of Richardson v Perales,

402 U.S. 389 (1971) suggests the erroneous belief that one

cannot cross-examine writers of written medical reports.

Closer examination of that decision reveals that proposition

is not always true and that the FPEB was wrong for denying

Doe's request to confront and cross-examine the resident.

The Perales Court at 402 held as follows:

We conclude that a written report by a

licensed physician who has examined the

claimant and who sets forth in his report his

medical findings in his area of competence

may be received as evidence in a disability

hearing and, despite its hearsay character and

an absence of cross-examination, and despite

the presence of opposing direct medical

testimony and testimony by the claimant

himself, may constitute substantial evidence

supportive of a finding by the hearing

examiner adverse to the claimant, when the

claimant has not exercised his right to

subpoena the reporting physician and thereby

provide himself with the opportunity for cross-

examination of the physician. (Emphasis is

Doe’s.)

At 406-407, the Pera/es Court distinguished the Perales

holding from its previous holding in Goldberg v. Kellv,

397 U.S. 254, 267-268 (1970), which provided due process

requires ‘“‘an effective opportunity to defend by confronting

any adverse witness.” The Pera/es Court wrote that

Goldberg “concerned a situation, the Court said, ‘where

credibility and veracity are at issue, as they must be in many

termination proceedings.’ 397 U.S. at 269.” The Court

added, ‘Further, the specter of questionable credibility and

veracity is not present; there 1s professional disagreement

with the medical conclusions, to be sure, but there is no

attack here upon the doctor's credibility or veracity.”

So, Doe’s case can be distinguished from the Perales case

on the facts. Unlike the Perales case, which involved a

dispute over esoteric professional medical judgment. Doe's

case involved, not just the resident's reasoning and medical

malpractice, but the numerous false statements of fact, upon

which he based his diagnosis and which he used to mislead

other psychiatrists, and his dubious credibility. Unlike

Perales, Doe requested the FPEB to call the resident as a

witness so that he could confront and cross-examine him

about the flaws in his report and entered his formal objection

at the FPEB hearing. The rationale in the Perales case

demonstrates that the FPEB should have allowed Doe to

cross-examine the resident.

In Wallace v Bowen, 869 F.2d 187, 192 (3 Cir. 1988), the

Third Circuit Court of Appeals interpreted Perales as

authority that due process always requires confrontation and

cross-examination of the author of a wntten medical report if

the claimant, unlike Perales, requests a subpoena. The Court

wrote “Effective cross-examination could reveal what

evidence the physician considered or failed to consider in

formulating his or her conclusions, how firmly the physician

holds to those conclusions, and whether there are any

qualifications to the physician’s conclusions.” Quoting

another opinion, the Court added, “(Cross examination of the

doctor to establish the psychiatric philosophy that formed the

basis of his professional opinion could affect the weight

given to [claimant’s] testimony, especially where, as here,

there exists evidence of record to support the plaintiffs

contentions.) Particularly applicable to Doe’s case 1s the

Court’s comment that “Indeed, the need for

cross-examination may be heightened when the physician's

opinion is based on second-hand readings of other

physician's medical reports.” Wallace at 193.

The Fifth Circuit Court of Appeals also interpreted Perales

as holding that “an opportunity for cross-examination is an

element of fairness of the hearing to which a claimant is

entitled.” Lidy v. Sullivan, 911 F.2d 1075, 1077

(5"" Cir. 1990). “Thus, we conclude that the better reading is

that by requesting a subpoena. a claimant has the right to

cross-examine an examining physician.” Lidy at 1077.

The Eleventh Circuit Court of Appeals agreed with the

Wallace Court that it violates a claimant's right to procedural

due process for the Secretary to deny a claimant Social

Security benefits based upon medical reports without giving

the claimant an opportunity to subpoena and cross-examine

the authors of such reports. Demenech v Secretary of the

Department of Health and Human Services, 913 F.2d 882,

884 (11"" Cir. 1990).

Adding to the 10 U.S.C. § 1214 statutory right (but never

subtracting), AFI 36-3212 provides that in a “full and fair

hearing” the service member has the right to “present

evidence.” The FPEB denied Doe the right to “present

evidence” from the resident’s own mouth.

Because the FPEB violated Doe’s 10 U.S.C. § 1214

statutory right to confront and cross-examine the resident and

Doe’s AFI 36-3212 regulatory right to present evidence at

the 9 April 1999 hearing, the Administrative Procedure Act

(“APA”) at 5 U.S.C. § 706 (triggered by

28 U.S.C. § 1491(b)(4)), required Judge Braden to “hold

unlawful and set aside agency action, findings, and

conclusions found to be ... (C) ... short of statutory nght;

(D) without observance or procedure required by law ....”

That includes setting aside the FPEB hearing and

determination and the resulting August 19, 1999 retirement

and SAFPC and AFBCMR reviewing determinations.

If. 10 U.S.C. § 633 Provides a Property Interest under

Due Process Clause of the Fifth Amendment with

Right to Confront and Cross-Examine

Adverse Witness

Judge Braden and the Court of Appeals have destroyed the

tenure rights of all regular general officers and semior field

grade officers, including the Joint Chiefs of Staff. generals

fighting the war against terror, and the brigade commanders

and battalion commanders engaged in combat with terrorists

in Iraq and Afghanistan. First, the bureaucrats deny them

flak jackets and protective armor for their vehicles and force

their injured to live in squalid housing at Walter Reed. And,

now. these judges have destroyed their tenure nghts.

Other lower court decisions have recognized these tenure

rights, but the Supreme Court has never interpreted these

statutory rights. Judge Braden and the Court of Appeals have

decided an important question of federal law that has not

been, but should be, settled by the Supreme Court.

These tenure rights are codified at 10 U.S.C. §§ 633-636.

§ 636 guarantees major generals and above 35 years active

commissioned service. §§ 634-635 guarantee brigadier

generals and colonels 30 years, while § 633 guarantees

lieutenant colonels 28 years. The relevant portions of these

four sections are worded identically. The relevant part of

§ 633 states, “ [E]ach officer of the Regular Army, Regular

Air Force, or Regular Marine Corps who holds the regular

grade of lieutenant colonel ... shall, if not earlier retired, be

retired on the first day of the month after the month in which

he completes 28 years of active commissioned service.”

Judge Braden’s opinion (A31-A32), which the Fed. Cir.

adopted, misinterpreted this wording and ignored legal

precedents that had correctly interpreted § 633 to give the

officer an expectation of continued employment for 28 years.

She focused on the words “if not earlier retired” and assumed

the military could involuntarily without due process retire the

otficer before the 28-year point (as opposed to the officer,

himself, choosing to retire earlier).

An hypothetical demonstrates the fallacy of her

misinterpretation. Most lieutenant colonels, like Doe,

achieve that rank at the 16-year point — 4 years before they

are cligible to retire. Since they cannot “retire” until 4 years

later at the earliest and since § 633 gives only two

possibilities (retire at 28 years or retire earlier), § 633 gives

those officers an expectation of continued employment until,

at a minimum, they can become eligible to retire.

Judge Braden ignored legal precedents (reflected in

military practice) which guaranteed regplar lieutenant

colonels 28 years emplovment. This 28-year guarantee was

an important fact. upon which the Fed. Cir. built one of its

arguments in Perez v. U.S., 156 F.3d 1366, 1368, 1369, and

1373

73. Fed. Cir. emphasized that Perez benefited from his

decision to give up his rank as an active-duty reserve colonel

and integrate into the regular army as a lieutenant colonel

stating the following: “‘{I]f he chose not to integrate, he

would have to retire after 20 years of active-duty service,

whereas if he integrated, he, as a lieutenant colonel, could

remain in service for 28 years.” Perez at 1373. It’s patently

dishonest for Fed. Cir. to rely on that 28-year expectation in

Perez and then deny that same 28-year guarantee to Doe.

Judge Braden also quoted Norman v. United States,

183 Ct.Cl. 41, 49 (1968), out of context (A31). She ignored

the very next sentence: “The status of these officers was not

a common law contractual relationship with the Government,

but was created entirely by statute and could be altered or

taken away by statute.” The Court wrote, “Under the Officer

Personnel Act of 1947 * lieutenant colonels could expect to

continue active service until they had completed 28 vears

service ....“* (Emphasis is Doe’s.) Norman at 45. The only

way the Air Force could get around that “guaranteed”

property right was for the Secretary of Defense to convince

Congress to pass a second statute temporarily altering the

first statute for a brief period of five years (July 12, 1960

through June 30, 1965). Norman at 44-48. If that statute had

not been modified, the officers could be early retired only if

they were accorded the full panoply of due-process rights

including the right to cross-examination. With $ 633

unmodified, as it was when Doe was involuntarily retired, the

long line of well-established case law controls so that “[A]

military officer's expectation of continued military

employment does not rise to the level of a property interest

unless it is rooted in some statute, regulation or contract.”

Doe v. Garrett, 903 F.2d 1455, 1462 (1 1" Cir. 1990). Doe

can point to § 633 as that “statute.” The military can

involuntarily remove such officers before the 28-year point

(for example, by court martial or disability retirement (or

even discharge before the 20-year retirement eligibility kicks

in)), but it must give such officers all the Fifth Amendment

due-process rights at a full and fair hearing or trial.

This military practice reflecting Doe’s interpretation of

§ 633 creates a contractual right according to the

Supreme Court's holding in Perry v. Sindermann,

408 U.S. 593, 601-602 (1972), recognizing property rights

stemming from an implied contract based on understandings,

conduct, and practice. The Perez case above reflected this

common military practice and demonstrated that both the

lieutenant colonel and the personnel office had an

understanding that the 28-year guarantee existed and relied

upon that understanding in their conduct and practice. The

Perez court also recognized and accepted that practice. The

Norman case above also reflected this common military

practice. The Secretary of Defense believed the tenure rights

existed and believed he had to go to Congress to modify the

statute for a temporary five-year period so that the military

could retire the lieutenant colonels and colonels without the

normal due process rights through Selective Early Retirement

Boards. The retired Norman lieutenant colonels and colonels

also believed they had those tenure rights. The Norman court

believed they would have had those tenure nghts had the

statute not been modified.

This property interest — stemming either (1) from the § 633

statute or (2) from an implied contract based on common

military practice and conduct — triggers Doe’s due process

right under the U.S. Constitution’s Fitth Amendment, which

provides in relevant part. “No person shall be ... deprived of

life. liberty, or property. without due process of law: ....”

According to the case law discussed 1n Section I above.

that due-process right included Doe's right to cross-examine

the resident.

Because the FPEB violated Doe's Fifth Amendment right

to contront and cross-examine the resident at the

Apnil 9. 1999 FPEB hearing. the APA at 5 U.S.C. § 706

(triggered by 28 U.S.C. § 1491(b)(4)). required Judge Braden

to “hold unlawful and set aside agency action, findings, and

conclusions found to be ... (B) contrary to constitutional

right, ... (D) without observance or procedure required by

law .... ur (E) unsupported by substantial evidence.” That

includes setting aside the FPEB hearing and determination

and the resulting August 19, 1999 retirement and SAFPC and

AFBCMR reviewing determinations.

lil. Department of Justice’s Trial Attorney and

His Supervisors Violated Rule 11

It’s been said that the mora] standards of an organization

are shaped by its leader — not by formal written codes — but

by the leader’s conduct and by the examples set by

subordinates’ conduct that the leader rewards or allows to go

unpunished. It’s this unwritten code fostered by the leader’s

winks and nods that creates the environment in which ethics

scandals occur in police departments, corporations like

Enron, and other organizations.

Accordingly, RCFC Rule 11 (A39-A40) is not worth the

paper it’s written on if Judge Braden and the Fed. Cir. judges

with a wink and a nod are allowed to give a pass to the trial

attorney’s fraudulent misconduct and the complicity of his

supervisors. He perpetrated fraud and continued with that

traud atter he was caught red handed.

The trial attorney attempted to trick Judge Braden into

thinking the second MEB had the two documents. The trail

attorney argued fallaciously that wording in the resident's

January 13, 1999 report (with the ability to foresee the

future?) meant that the second MEB (held at WHMC on

January 28, 1999 — 15 days after the resident’s report) had

Doe’s letter of exception (complaining about the two

documents), rather than the first MEB (held in California two

months before the resident's report on November 13, 1998).

Judge Braden, fully aware of the facts. did not challenge

the trial attorney and denied Does’ mouon for Rule ||

sanctions with just a one-sentence order and no opinion (A3).

After Doe appealed that terse Rule |] Order to the Fed. Cir.,

the Fed. Cir. judges wrote absolutely nothing refusing

(A36-A37) to comment about the Rule | 1 violation and even

refusing to issue a “disposition” of Doe’s appeal of

Judge Braden’s Rule 11 Order (requested in Doe’s rehearing

motion). Those are winks and nods that encourage

fraudulent attorney misconduct, that is so fraudulent and

indefensible that Judge Braden and the Fed. Cir. judges dare

not put anything in writing to justify their denial of Rule ||

sanctions. Such a written defense of that fraudulent attorney

misconduct could come back to bite those judges and haunt

their careers that someday might be scrutinized by others.

RCFC Rule 11 (A39-A40) provides that by presenting to

the court a written motion or other paper, an attorney is

certifying that to the best of the person’s knowledge,

information, and belief, formed after an inquiry reasonable

under the circumstances, the allegations and other factual

contentions have evidentiary support. The trial attorney went

well beyond that standard. He perpetrated fraud and

undermined the judicial process for determining truth and

administering justice.

The Fed. Cir. judges have so far departed from the

accepted and usual course of judicial proceedings and have

sanctioned such a departure by Judge Braden, as to call for an

exercise of the Supreme Court's supervisory power. The

Supreme Court should make it clear that no litigant in this

land should have his search for justice frustrated by

fraudulent attomey misconduct like the tral attorney's.

CONCLUSION

Shortly. after this case concludes. erupting from a nuclear

facility in Dubna. Russia will be shocking news that will

surprise everyone (except Doe and Russian physicists

working with him): A great discovery has destroyed

relativity and quantum mechanics — the basis of everything

we know - and will require the laws of the universe to be

rewritten. For years to come, people will look back on all

this and tell the story about a man. While breaking into the

man’s home to search his working papers on FTL and

time-travel physics, intruders stumbled upon his AWC paper,

which found its way to the President of the United States.

The President, against the objections of all his military

experts, used those ideas to end the genocide in the Balkan

conflicts saving perhaps the lives of millions. To discredit

the man and cover up the illegal break ins and avoid

impeachment, the President ordered his bureaucratic machine

to demonize and mislabel the man as mentally ill and destroy

the man’s lifetime career and reputation. Afterwards, unjust

judges and bureaucrats smeared the man, denied the truth,

denied the man a full and fair hearing to reveal the truth, and

disbelieved the man’s declarations that Biblical prophecies

had predicted all this. The unjust judges and others fulfilled

the prophecies that all incensed against this blameless man

shall be ashamed.

On that sunny day at West Point, when Doe raised his

white-gloved hand to take his oath and tossed his white hat

into the air, he had no idea that he would be betrayed by his

Country — the President, the military, and the judicial system,

(hat rendered the Constitution and statutes not worth the

paper they were written on.

For the reasons discussed above, petitioner requests the

Court to grant writ of certiorari.

Respectfully submitted,

S/ _ —

Dated: July 19, 2007 JOHN DOE

Pro Se Petitioner

APPENDIX

- Fed. Cir. Disposition, John Doe v. United States,

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- USCFC Order, John Doe v. United States,

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- Memorandum Opinion and Final Order, 04-90C,

John Doe v. United States,

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- USCFC Judgment, John Doe v. United States,

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- Fed. Cir. Order (Denying Rehearing),

John Doe v. United States, 2006-5119,

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- Rule 11 of Rules of United States Court of Federal

8, ial IRS ea gn Soccernet RNa ope are OO eT 39

APPENDIX

United States Court of Appeals for the Federal Circuit

2006-5119

JOHN DOE,

Plaintiff-Appellant,

UNITED STATES,

Defendant-Appellee.

Judgment

ON APPEAL from the UNITED STATES COURT OF

FEDERAL CLAIMS

In CASE NO(S). 04-CV-90.

This CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

AFFIRMED

ENTERED BY ORDER OF THE COURT

DATED APR — 5 2007 __s/

Jan Horbaly, Clerk

ISSUED AS A MANDATE: MAY 29 2007

(NOTE: Circuit Judges were Judge Mayer, Judge Rader, and

Judge Prost.)

ORIGINAL

In the United States Court of Federal Claims

No. 04-90C

Filed: February 15, 2005

FILED

6 OR ee ee ee ee i eK

FEB 15 2005

JOHN DOE,

U.S. COURT OF

Plaintiff, FEDERAL CLAIMS

THE UNITED STATES,

Defendant.

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ORDER

In accordance with the telephone status conference

conducted on February !4, 2005, plaintiff's Mution for Rule

| 1 Sanctions, filed September 16. 2004 is hereby DENIED.

It IS SO ORDERED. S/

SUSAN G. BRADEN

Judge

66 Fed.Cl. 165-179 (2005)

In the United States Court of Federal Claims

No.04-90C

Filed: June 30, 2005

TO BE PUBLISHED

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JOHN DOE,

Plaintiff,

THE UNITED STATES,

Defendant.

* Administrative Procedure

* Act, 5 U.S.C. §§ 701,

° asca..;

* Basic Allowance for

* Housing,

* ST USL. § 3:

* Basic Allowance for

* Subsistence,

* 37 U.S.C. § 402;

* Fifth and Six Amendments

* to the United States

* Constitution;

* Medical and Dental Care

* for Members and Certain

* Former Members,

* 10 U.S.C. § 1074;

* Military Pay Act,

* 37 U.S.C. § 204:

* Pro Se;

* Tucker Act,

* 28 U.S.C. § 1491 (a2):

* 10 U.S.C. § 630-36:

* 10 U.S.C. § 1201(a)

*10 U.S.C. § 1214:

* 10 U.S.C. § 15S52(ay(1).

* (2)

* AFI 36-3212 3.17

* RCFC 46.1. Review of

Decision on the Basis of

* Administrative Record.

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John Doe, pro se, Plaintiff.

Gregory T. Jaeger, Esq., United States Department of

Justice, Washington, D.C. for Defendant.

MEMORANDUM OPINION AND FINAL ORDER

Braden, Judge.

On January 26, 2004, John Doe (“Plaintiff”) filed this

action in the United States Court of federal Claims seeking

compensatory and injunctive relief arising from a final

decision of the United States Air Force (“Air Force’’) to retire

Plaintiff because of medical disability.’

The court's review of the final decisions of the Armed

Services is limited by well established United States

Supreme Court and the United States Court of Appeals for

the Federal Circuit precedent. See, e.g., Dep't of Navy v.

Egan, 484 U.S. 518, 530 (1988). (“[U]nless Congress

specifically has provided otherwise, courts traditionally have

been reluctant to intrude upon the authority of the Executive

in military [decisions.}”); Gilligan v. Moran, 413 U.S. 1, 10

(1973)("[D]ecisions as to the composition, training,

equipping, and control of a military force are essentially

professional military judgments.”); see also Murphy v.

United States, 993 F.2d 871, 873 (Fed. Cir. 1993) (“The court

is not called upon to exercise any discretion reserved for the

military[.]": Sargisson v. United States 913 F.2d 918, 922

On February | 5. 2005. the court placed the record in this cause under

seal. Accordingly. Plainuff’s name and certain factual information have

been omitted tor confidentiality reasons

(Fed. Cir. 1990) (deciding not to review a decision to release

surplus officers from active duty).

The United States Court of Appeals for the Federal Circuit

has established a two-part test to assist the court in exercising

its jurisdiction within these constraints:

[First, the court must ascertain] ‘whether the

duty asserted can be judicially identified and

its breach judicially determined, and [second]

whether protection for the nght asserted can

be judicially molded....”. We have

emphasized that judicial review is only

appropriate where the Secretary's discretion

is limited, and Congress has established ‘tests

and standards’ against which the court can

measure his conduct.... Unless such a test or

standard is provided, courts must abstain.

Murphy, 993 F.2d at 872-73 (emphasis added) (citations

omitted).

Accordingly, in this case, the court has no authority to

evaluate the merits of Plaintiff's contentions that: former

President Clinton's Bosnian War strategy was influenced or

appropriated from Plaintiff's Air Command and Staff College

scholarship, without proper attribution; or the medical

opinions that recommended Plaintiff's retirement for

disability were superficial or inadequate. This court's

jurisdiction “ts [limited] solely {to] whether the [final]

decision...violated any statute, regulation, or the fundamental

due process that the Constitution provides to all persons.”

Holley v. United States, 124 F.3d 1462, 1468 (Fed. Cir.

1997).

As will be discussed in more detail herein, the court has

determined that the Air Force did not violate any statute,

regulation, or provision of the United States Constitution.

Accordingly, as a matter of law, the court 1s required to grant

Defendant’s Motion for Summary Judgment on the

Administrative Record. As the Addendum indicates,

however, this decision does not rest easy with the conscience

of the court.

RELEVANT FACTS AND PROCEDURAL

BACKGROUND’

A. Factual Background

1. Plaintiff's Service in the United States Army,

United States Army Reserve, And

United States Air Force in 1965-1997.

In 1965, Plaintiff enlisted in the United States Army. See

Def. Supp. Ex. At 4. After completing the military’s foreign

language school, Plaintiff was selected to attend the

United States Military Academy Preparatory School and the

United States Military Academy (“West Point’). /d. At

West Point, Plaintiff studied nuclear physics and had an

“outstanding [academic and professional] record.” See

P|. App. at 38. Following graduation, Plaintiff served as a

Platoon Leader for a missile battery in Europe, until he

voluntarily was released from active duty in 1975, See

Def. Supp. Cx. At 4.

* The relevant facts recited herein were derived from: the

January 26, 2004 Complaint ("Compl"): the Defendant's (*"Government”)

May 28, 2004 Motion tor Judgment Upon the Administrative Record

(Gov't Mot. J. Admin. Rec.) and Appendix thereto (“Det App.”):

*Jainuff’s June 18. 2004 Opposition (Pi. Opp.”): the Government's

July 30. 2004 Reply ("Gov't Reply”): Plaintiff's September | 6, 2004

Motion tor Rule || Sanctions (“Pl Mot. For Sanctions’): the

Government's October 20, 2004 Response thereto (Gov't Resp.) and

Supplemental Exhibit (Det. Supp. Fx.°): Transeript of April 6, 2005

Status Conterence (TR): and Plainutfs April 23, 2005 Mouon tor

Partial Judument Upon the Admimstrausve Record ("PT Mot. Partiai J

Admin. Ree.) and Appendix thereto ("PL App.”)

From 1975 to 1978, Plaintiff attended law school, /d.

Following graduation and admission to the bar, he served as

Administrative law Judge from 1979 to 1981. Id. At 5; see

also P\. App. at 54. During that time, Plaintiff also

participated in the United States Army Reserve until

March 28, 1981 on or about the time he joined the

United States Air Force (“Air Force’) as a Judge Advocate

General (“JAG”) Officer. See Def. App. at 1; see also

Def. Supp. Ex. At 5. In 1985, Plaintiff transferred to the

Air Force's Acquisition and Contracting Department. See

Def. Supp. Ex. At 5. Thereafter, Plaintiff successfully

completed tours of duty at the Air Command and Staff

College (“AWC”), where he was given an outstanding

graduate award, and at the Defense Personnel Support

Center. /d.; see also Compl. 4 14. In 1996, while stationed at

a Headquarters, Air Force Material Command, Plaintiff

received a Letter of Admonishment regarding alleged sexual

harassment charges that were filed during his three-month

temporary assignment to Saudi Arabia. See Def. Supp. Ex.

At 2, 5; Pl. App. at 5-6. With the exception of this

reprimand, Plaintiff had an excellent record of service in the

Air Force. See Def. Supp. Ex. At 4-5.

On July 16, 1997, shortly before being transferred to the

77" Communications Squadron, Plaintiff sent a hostile letter

to former President Clinton complaining “that the strategies

{the President] used in 1994 and 1995 to resolve the Bosnian

situation came from [Plaintiff's AWC] research paper.” See

Det. Supp. Ex. at |. After the White House staff received a

second letter on February 18, 1998 to the same effect. the

Air Force Liaison Officer contacted Plaintiff's supervisor and

requested that Plaintiff undergo a “Command Directed

{Mental Health] Evaluation” (“CDE™).” Id.: see also PI. App.

“In L988, Plaintiff received a CDE after the Director of

one of the National Laboratories reported to the Air Force Office of

Special Investigations that Plainutt requested use of the lab to contirm his

at 4. On May 4, 1998 and August 17, 1998, Plaintiff was

evaluated by the Element Chief that he was the subject of

Biblical prophecy, was pursuing Russian resources to allow

him to complete research on time travel theories, and

indicated that he was unable to reconcile his grievances about

the alleged use of his AWC research paper, without

attribution. See Def. Supp. Ex. at 9-10. Plaintiff was

diagnosed as having a “Delusional Disorder, Mixed Type,

with prevalent Grandiose and Persecutory Themes.” See

Def. Supp. Ex. at 8. Thereafter, the Element Chief advised a .

Medical Evaluation Board (“MEB”)’ that Plaintiff should be

removed from active duty service. See Def. Supp. Ex. at 8,

10; see also Pl. Opp. At 4. Plaintiff objected and requested a

second opinion. See Def. Supp. Ex. at 11. On

October 8, 1998, Plaintiff was evaluated by another Air Force

base mental health Clinic. Id. On October 15, 1998, the Flight

Commander of the second Air Force Mental Health Clinic

issued a Narrative Summary that concurred with the Element

Chief's diagnosis and recommended to the MEB ‘hat Plaintiff

be removed from service. See Def. Supp. Ex. at 12.

2. Medical Evaluation Board Proceeding In

January 1999,

Somcetinie in early January 1999, the MEB President

theories on time travel. See Det. Supp. Ex. at |. Plaintitf states that the

lab misrepresented the situation and no further action was taken. /d.

‘The MEB consists of Air Force Medical Officers who evaluate a

service member's medical history, recommend the disposition of the case.

and reter it to the final approving authority. See AFI 36-3212 § 2.2.

Under the Air Force’s Medical Examination and Standards Instruction,

“[{alny condition in the opinion of the provider of care [that] is feit to be

unacceptable tor continued military service is reason for performing 2

MEB tor active duty [service members]... Questionable conditions

should be addressed to the semor ;medical] officer. and 1f required, to

HQ AFPC DPAMM[.)" AFI 48-123 Attachment 2

requested that additional medical testing be conducted prior

to the entire Board convening. See Pl. Opp. 4 5. On

January 13, 1999, a Psychiatric Resident prepared a Narrative

Summary, wherein he diagnosed Plaintiff as a psychotic

afflicted with delusional disorder. See Compl. {| 6; see also

Def. App. at 61. Prior to finalizing and submitting this

Narrative Summary, the Psychiatric Resident reviewed his

diagnosis with a third Air Force Medical Center’s “entire

psychiatry staff,” including the Program Director, who

co-signed the final January 13, 1999 Narrative Summary. See

Def. App. at 65. On January 28, 1999 the MEB issued a

report referring this matter to an Informal Physical Evaluation

Board (“IPEB”). /d. at 60.

3. Informal Physical Evaluation Board and

Formal Physical Evaluation Board

Proceedings in February-April 1999.

On February 14, 1999, Plaintiff submitted a 23-page Letter

of Exception to the IPEB” contesting the MEB’s decision:

That letter provided abundant documentary

evidence and advanced arguments that

[former] President Clinton borrowed ideas

from Plaintiff's AWC paper to formulate his

military strategy in Bosnia. That documentary

evidence included a copy of Plaintiffs AWC

research paper and AWC documents from the

~ AFI 36-3212 § 3.1 provides: “A [Physical Evaiuation board (“PEB™)|

is a fact-finding body that investigates the nature, origin. degree of

impairment, and probable permanence of the physical or mental defect or

condition of any member whose case it evaluates. The disability system

provides tor two PEBs: un Informal PEB and a Formal PEB. If either

board finds the member unfit, 1 recommends appropriate disposition

based on the degree of impairment caused by the disabling condition. the

date incurred. and the member's line of duty status.”

AWC faculty designating Plaintiff as [an]

Outstanding Graduate among the colonels and

lieutenant colonels in the 1994 AWC course.

That evidence and those arguments... later

persuaded certified experts on military

Strategy that Plaintiff's claim against [former]

President Clinton was true, despite their initial

belief to the contrary.

Compl. { 128.

On February 23, 1999, the IPEB recommended that

Plaintiff “be permanently retired with a 30% compensable

disability rating.” /d. At 58-59.° On February 24, 1999,

Plainitff requested a “full and fair hearing,” pursuant to

10 U.S.C. § 1214,’ and filed a Letter of Exception contesting

the Psychiatric resident’s January 13, 1999 Narrative

Summary, the MEB recommendation, and the IPEB findings.

See Compl. 4% 8-11. Plaintiff's appeal of the IPEB’s

determination then was forwarded to a Formal Physical

Evaluation Board (“FPEB”).*

” As part of the disability evaluation process, the Air Force assigns a

percentage rating to a medical defect or condition when the member ts

physically unfit for duty. See AFI 36-3212 $$ 1.7. 1.9. Under Title X.

the Air Force uses the Department of Veterans Affairs scheduling for

Rating Disabilities (*VASRD”) to quantify compensable disabilities. /c.

10 U.S.C. § 1201(b) authorizes the appropriate service Seerctary to retire

service members for disability if they have completed 20-vears of service

or they have a VASRD disability rating of 30°o. Plainttf was eligible to

be reured under either of these criteria.

“10 U.S.C. § 1214 provides: “No member of the armed forces may be

retired or separated tor physical disability without a full and fair hearing if

he demands it.”

* Once an IPEB determines that a service member is unfit for continued

military service. the member can request another hearing betore a FPEB

where the service member can challenge the MEB's recommendation

again. See Physical Disability Evaluation. Dept. of Defense Instruction

Prior to the FPEB’s hearing, Plaintiff's appointed counsel

requested that the Psychiatric Resident who issued the

January 13, 1999 Narrative Summary be made available for

cross-examination. See Compl. | 14-15; see a/so Pl. App. at

15. On April 2, 1999, the FPEB President denied that

request, but stated that if “the available medical information

in [Plaintiff's] case is insufficient or inaccurate, then the

Board will order additional medical consultants/opinions as

appropriate.” See Pl. App. at 67. During the April 9, 1999

FPEB hearing, Plaintiff's counsel objected to being denied

the ability to cross-examine the Psychiatric Resident;

however, Plaintiff testified and “provided evidence and

advanced arguments that [former] President Clinton

(1) borrowed ideas from Plaintiff's AWC paper to formulate

his military strategy in Bosnia and (2) used ideas from

Plaintiff's March 31, 1999 letter to make changes in [former]

President Clinton’s...military strategy in Kosovo.”

Compl. 4 131; see also id. 4 122, 125, 128, 132-137. On

April 9, 1999, the FPEB issued a final decision concurring

with the IPEB’s recommendation that Plaintiff was unfit for

further military service. See Def. App. at 56-57.

4. Secretary of the Air Force Personnel

Command Proceeding in April-May 1999

On April 20, 1999, Plaintiff filed a timely appeal of the

FPEB’s April 9, 1999 final decision to the Secretary of the

Air Force Personnel Command (“SAFPC”™). See

Compl. § 25. The Senior Legal Advisor to the SAFPC

1332.38 Enel. 3 at 19 (Nov. 14. 1996). Service members who contest the

IPEB’s fitness determination before a FPEB are provided with legal

counsel and the opportunity to present evidence on their behalf and make

a personal appearance. See Pl. App. at 134. Pursuant to Air Force

regulations. a FPEB determination satisfies the statutory requirement for a

“full and tair hearing.” See AFL 36 3212 § 3.2: see also Pl. App. at 130

Director, however, concluded that Plaintiff “did not present

any compelling arguments to support his contention [of lack

of due process.]” Def. App. at 54; see also Compl. 4 26. On

May 19, 1999, SAFPC issued a final decision affirming the

FPEB’s decision. See Def. App. at 54-55. On June 8, 1999,

Air Force Personnel Command issued Special Order

No. ACD-00882, pursuant to 10 U.S.C. § 1201(a),” setting

Plaintiff's mandatory retirement date for August 19, 1999. Id

at 53. On August 19, 1999, Plaintiff was retired by the

Air Force because of disability. Id. at 6.

5. Air Force Board for Correction of Military

Records

On December 15, 2000, Plaintiff properly petitioned the

Air Force Board for Correction of Military Records

(“AFBCMR”)’” to correct his disability evaluation and

associated military records “by revocation” of the FPEB’s

April 9, 1999 decision and restore him to active duty. See

Compl. 4 33. In support, Plaintiff proffered a medical

evaluation conducted on December 10, 1999 by a Department

of Veterans Affairs (“VA’’) physician that concluded:

“Currently | am unable to confirm the diagnosis of delusional

disorder. Through a series of retrospective connections and

"10 U.S.C. § 1201(a) provides: “Retirement.---Upon a determination

by the Secretary concerned that a member [ot a regular component of the

armed forces] is unfit to perform the duties of the member's office, grade.

rank, or rating because of physical disability incurred while entitled to

basic pay...the Secretary may retire the member, with retired pay

computed under section 1401 of this ntle[.}”

” The AFBCMR is comprised solely of civilian employees authorized

by Congress to change any military record, when it is necessary to correct

an error or remove an injustice. See LOL SC $s 1S82fandit2) The

AFBCMR ts the final administrative appeal level to correct service

records. See Det. App. at 130; see also Strickland v. United States,

6) Fed. Cl 443. 452 (2004).

inferences it is possible that another evaluator might have

made the diagnosis of a mental disorder but I cannot

corroborate this at this time.” Def. App. at 72; see also

Pi. App. at 48.

On February 23, 2001, AFBCMR forwarded Plaintiff

copies of advisory opinions written by the AFBCMR’s legal

and medical advisors concluding that the Air Force provided

Plaintiff with a “full and fair hearrng” concerning the

circumstances surrounding his retirement. See Def. App. at

102-05; see also Compl. 4§ 34-35. AFBCMR’s Legal

Advisor also determined that the Air Force satisfied all

applicable regulations. See Def. App. at 104-05. In addition,

AFBCMR’s Medical Officer concurred with the FPEB and

distinguished the VA physician’s December 10, 1999

evaluation in light of prior opinions issued by Air Force

mental health personnel, particularly since the VA

physician's analysis was based on a single meeting, without

access to Plaintiff's military and medical records. See.

Def. App. at 102-03. On March 20, 2001, Plaintiff filed a

Response. See Compl. “| 35. On June 3, 2001, the AFBCMR

denied Plainuffs petition, adopting the position of the

aforementioned advisory opinions and concluding that

“insufficient relevant evidence has been presented to

demonstrate the existence of probable error or injustice.”

Def. App. at 1-3: see also Compl. 4 36.

On March 20. 2002. Plaintiff requested that the AFBCMR

reconsider his petition for correction based on “new

evidence.” 1.e., that a former Secretary of the Treasury's wife

telephoned Plaintiff to advise him that “President Clinton

may very well have presented the ideas from Plaintiff's AWC

paper to [the former Secretary} and the other national

Security Council members on 6 February 1994 as a new

unconsenuonal military strategy tor the conflict in Bosnia.

That request also related information about several science

ficuon authors ..and [that certain Air Force officers} had

revoked the adverse referral Officer Pertormance Report

(“OPR”) and replaced it with an outstanding OPR, and that

long after Plaintiff had retired [these officers] arranged for

Plaintiff to receive numerous awards and decorations, placed

them in a brown package and mailed the package to

Plaintiff's last know address.” Compl. 4 142. On

May 2, 2002, the Director of the AFBCMR advised Plaintiff

that his request for reconsideration was rejected. See

Det. App. at 129; see also Compl. § 143. On July 9, 2003,

the Director of the AFBCMR notified Plaintiff that the

evidence submitted in another letter dated June 18, 2003 was

not relevant and that all future submissions would be “filed

without action.” See Def. App. at 130.

B. Procedural History.

On January 26, 2004, Plainuff filed a timely Complaint in

the United States Court of Federal Claims seeking

compensation and injunctive relief arising from the

Air Force’s decision to retire him with a medical disability.

See Compl. “| 1-5. The Complaint states five Causes of

Action that are interrelated and often redundant.

The First Cause of Action alleged that the Air Force

'' The First Cause of Action alleged a violation of the Takings Clause

of the Fifth Amendment. Sec, v.g.. Compl. €¥ 12-13, 18-16, 20-25, 35-37.

39, 45-52. A violation of the Due Process of the Fifth Amendment is also

asserted and a violation of the Confrontation Clause of the Sixth

Amendment is implied. /d. © 12. 14-25. 27, 29, 33, 35-37, 39, 82.

" The First Cause of Action also alleged a violation of the following

statutes: 10 U.S.C. § 633 (requiring 28 years of active commissioned

service before retirement) see v.g., Compl. @ 2. 14. LO U.S.C. § 1214 (No

member of the armed forces may be retired or separated for physical

disability without a full and fair hearing if he demands 1t.”). see e.g.

Compl. €© 9-11, 22, 24. 29, 39-44. 52(a)-(1): 37 U.S.C. § 204 (Pay and

\liowances of the Unitormed Services”). see, e.g... Compl. © 2. 14:

37 U.S.C. § 402 (Basic Allowance for Subsistence”), see. e.g.

Compl. 2, 14. 46-51: 37 U.S.C. § 403 ("Basic Allowance tor

Housing”). see. e g.. Compl. € 2. 14. 46-51. 10 U.S.C. § 1074 ("Medical

violated a series of constitutional,'' statutory,'*, and

regulatory rights.'’ See Compl, 4 6-53. As a result, the

Air Force “unlawfully retired Plaintiff...and has refused to

correct his military records or afford any other administrative

relief to which he is entitled.” /d. 4 53.

The Second Cause of Action alleged that the Air Force

engaged in a series of acts in “bad faith,” including violating

Plaintiff's “constitutional rights by depriving him of property

and liberty without due process of law.” Jd. 4 66; see also id.

"| 54-65, 67.

The Third Cause of Action alleged that the Air Force

violated AFI 36-3212 § 3.17 (Presumption of Fitness) by the

unlawful retirement of Plaintiff and refusal to correct his

military records. /d. 4§ 68-103

The Fourth Cause of Action alleged that the Air Force’s

decision not to accord “due weight” to the VA physician's

December 10, 1999 examination rendered the AFBCMR

decision “(1) arbitrary, capricious, or an abuse of discretion

and (2) unsupported by substantial evidence” and therefore

legally insufficient. /d. #4 118-119; see also id. 44 104-117,

120.

The Fifth Cause of Action alleged that the Air Force’s

“forced disability retirement of Plaintiff and denial of his

application to the AFBCMR, Defendant's determinations,

documents, and actions were (1) arbitrary, capricious, or an

abuse of discretion, (2) unsupported by substantial evidence

and not 1n accordance to law,” /d. 4 197: see also id.

and Dental Care for Members and Certain Former Members’). see. e g..

Compl. “ 2. 14, 46-51: 10 U.S.C. § 1552(ay1) (Secretary of a military

department may correct any military record...to correct or remove an

AF] 36-3212 (Lega! Basis for Formal hearings). see, e.g.. Compl. “ 10.

19-22, 24. 29, 31, 39, 52-53. and Terms-Attachment | (Full and Fair

Hearings}. See. e.g.. Compl. @ 10. 31. 35, $2-83.

“| 121-196, 198.

On May 28, 2004, the Government filed a Motion for

Judgment on the Administrative record, together with a

Statement of Facts in Support Thereof. On June 18, 2004,

Plaintiff filed a Brief in Opposition, together with a Counter

Statement of facts. On August 3, 2004, the Government filed

a Reply. On August 17, 2004, Plaintiff filed a

Protest/Objection to fraud Perpetrated in the Defendant's

Reply to Plaintiff's Response to defendant’s Motion for

Judgment Upon the Administrative record.” On

September 9, 2004, the Government filed a Response. On

September 14, 2004, Plaintiff filed a Reply. On

September 16, 2004, Plaintiff filed a Motion for Rule | |

Sanctions. On October 20, 2004, the Government filed a

Response.

On February 15, 2005, the court denied Plaintiff's Motion

for Rule 11 Sanctions. In addition, on February 15, 2005, the

court appointed pro bono counsel to represent Plaintiff and

issued a 60-day stay of proceedings.'* During an

April 6, 2005 status conference, the court asked the parties to

explore a potential settlement. On April 25, 2005, Plaintiff

“discharged” appointed counsel informing the court that

Plaintiff would not agree to any settlement unless one of the

provisions mandated his return to service. Plaintiff's

“discharge” was based on a misunderstanding about thie

DISCUSSION

* The United States Court of Federal Claims maintains a list of

attomeys experienced with Disability Appeals and Veterans Affairs

reguiations willing to provide pro se assistance to current and former

members of the Armed Services who file lawsuits against the

Government. Professor James T. O'Reilly of the University of Cincinnau

College of Law. a member of the United States Court of Federal Claims

Pro Bono Program and tormer Chairman of the American Bar

Association's Section on Administrative Law and Regulatory Practice.

Was appointed by the court to serve as Counsel to Plainuft.

nature of the April 6, 2005 status conference. Accordingly,

the court has not acted on Plaintiff's unilateral “discharge.”

On that same day, Plaintiff filed a Motion for Partial

Judgment on the Administrative record.

A. Jurisdiction.

The United States Court of Federal Claims has been

authorized by Congress to “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.”

28 U.S.C. § 1491(a)(1). In United States v. Mitchell,

445 U.S. 535, 538 (1980), however, the United States

Supreme Court held that the Tucker Act does not create any

substantive right for monetary damages. Therefore, a

plaintiff must identify and plead an independent contractual

relationship, constitutional provision, federal statute, and/or

executive agency regulation that provides a substantive nght

to money damages in order for the court to have jurisdiction.

See Khan v. United States, 201 F.3d 1375, 1377

(Fed. Cir. 2000); see also Fisher v. United States,

402 F.3d 1167, 1173-74 (Fed. Cir. 2005) (en banc) (emphasis

in original) (recognizing that United States v. White Mountain

ApacheTribe, 537 U.S. 465, 472-73 (2000) articulated a new

test that “demands a showing demonstrably lower.... It is

enough that a statute creating a Tucker Act nght be

reasonably amenable to the damages... a fair inference will

do.”)

Although the Tucker Act does not provide independent

jurisdiction over claims for declaratory or injunctive relief,

~ 28 U.S.C. § 1491 (a2) states: “To provide an entire remedy and to

eager ;

complete the reliet afforded by the judgment. the court may. as an

the court has authority to provide equitable relief if the action

is collateral to a claim for monetary damages.'” See

Brown v. United States, 105 F.3d 621, 624 (Fed. Cir. 1997)

(“The Tucker Act does not provide independent jurisdiction

over such claims for equitable relief.”); see also Passaro v.

United States, 774 F.2d 456, 459 (Fed. Cir. 1985) (“Equity to

the extent that it can be administered by the {United States

Court of Federal Claims], exists as an incident of general

jurisdiction under the Tucker Act[.]”).

The Complaint properly alleges a money mandating statute

by invoking the Military Pay Act, 37 U.S.C. § 204, since that

Act in relevant part, provides: “a member of the uniform

service who is on active duty...[is] entitled to basic pay of the

grade to which assigned.” 37 U.S.C. § 204; see also

Martinez v. United States, 333 F.3d 1295, 1303

(Fed. Cir. 2002) (en banc) (“In the context of military

discharge cases, the applicable ‘money-mandating’ statute

that is generally invoked 1s the Military Pay Act,

37 U.S.C. § 204[,]”). The Complaint also properly alleges

26 U.S.C. § 1491(a) as a basis to review the correction of

military records. See Voge v. United States, 844 F.2d 776,

781 (Fed. Cir. 1988).

B. Justiciability.

When legal challenges to final military decisions are

raised, the court is obligated first to consider the justiciability

of the legal question presented. See Orloff v. Willoughby,

345 U.S. 83, 93-94 (1953). (“[JjJudges are not given the task

of running the [military]. The responsibility for setting up

incident of and collateral to anv such judgment. issue orders directing

restoration to office or position, placement in appropriate duty or

reurement status. and correction of applicable records. and such orders

mav be issued to any appropriate official of the United States.”

channels through which such grievances can be considered

and fairly settled rests upon the Congress and upon the

President of the United States and his subordinates.”’); see

also Murphy v. United States, 993 F.2d 871, 874

(Fed. Cir. 1993) (“[J]udicial review is only appropriate where

the Secretary [of the Air Force]’s discretion is limited, and

Congress has established ‘tests and standards’ against which

the court can measure his conduct.) The United States

Court of Appeals for the Federal Circuit specifically has held

that determining who is fit or unfit to serve in the armed

forces does not fall within the judicial province. See

Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983)

(holding that the merits of the military’s decision to release a

service member from active duty are non-justiciable).

Although the merits of a fitness te serve determination are

non-justiciable, the United States Court of Appeals for the

Federal Circuit nevertheless has recognized that the

United States Court of Federal Claims has limited authority

to adjudicate a constitutional challenge arising from a

procedure used by the Armed Forces. See Atkins v.

United States, 68 F.3d 1317, 1323 (Fed. Cir. 1995) (emphasis

in original) 9°°[ A]lthough the meritsof a decision committed

wholly to the discretion of the military are not subject to

judicial review, a challenge to the particular procedure

followed in rendering a military decision may present a

justiciable controversy.”): see also Murphy, 993 F.2d at 873

(“When the military 1s given unlimited discretion by

Congress, it is nevertheless bound to follow its own

procedural regulations if it chooses to implement some.”’)

Therefore, when the Armed Forces have issued a final

decision, the court can intervene only to ensure that the

decision was made in a proper procedural manner. See

Wagner v. United States, 365 F.3d 1358. 1361

(Fed. Cir. 2004) (“|W Je will not disturb the decision of the

corrections board unless it 1s arbitrary, capricious. contrary to

law. or unsupported by substantial evidence.”): see also

Carmichael v. United States, 298 F.3d 1367, 1373-74

(Fed. Cir. 2002) (“If the Navy failed to follow its own

policies and did not properly provide [plaintiff] with religious

accommodation procedures, [plaintiff's] discharge may be

involuntary because he was faced with the untenable

option[.]”); Voge, 844 F.2d at 779 (“Though the question of

fitness to serve may be nonjusticiable in various contexts, we

Have consistently noted that a challenge to a particular

procedure followed by the military in rendering a decision

may present a justiciable issue.””); Murphy, 993 F.2d at

873-74 (holding that the United States Court of Federal

Claims may decide whether the military followed procedures

set forth in its own regulations.

C. Standard Of Review For Final Decisions In

Military Cases.

This case presents a justiciable controversy since the

Military Pay Act provides monetary damages, and the

standards by which the court measures the Air Force's

procedures are defined by the APA, which provides that

substantive standard under which final actions may be subject

to review by the United States Court of Federal Claims, 1.e.,

“whether the. ..action was arbitrary, capricious, or in bad

faith, or unsupported by substantial evidence, or contiaty to

law, regulation or mandatory published procedure of a

substantive nature by which [the complainant] has been

seriously prejudiced... The standard in these cases is broadly

referred to as the ‘substantial evidence’ rule.” Heisig,

719 F.2d at 1156; see also Voge, 844 F.2d at 779 (“[T]he

[United States Court of Federal] Claims... may review the

[challenged] process for compliance with established

procedures. ); Clayton v. United States, 225 Ct. Cl. 593, 594

(1980) ("Since there is a strong presumption that the

AFBCMR faithfully discharged their duties, plainuff has the

burden of proving otherwise. ”)

As a matter of law, the court’s review of the SAFPC’s

May 19, 1999 final decision no to overturn the FPEB’s

April 9, 19999 final decision that Plaintiff was unfit for

continued military service and its issuance of Special Order

No. ACD-0882 mandating Plaintiff's retirement for a medical

disability 1s limited to determining whether that final decision

was “arbitrary, capricious, or in bad faith, or unsupported by

substantial evidence, or contrary to law, regulation, or

mandatory published procedure.” See Fisher, 402 F.3d at

1180 (“[E]ligibility for disability retirement pay...is

conducted under a deferential standard of review[.]"’}.

Likewise, the court’s review of the AFBCMR’s June 3, 2001

final decision not to correct Plaintiff's disability evaluation

and associated military records by revoking the FPEB’s

April 9, 1999 final decision and the SAFPC’s May 19, 1999

final decision is limited to procedural compliance, not the

underlying merits. See Chappell v. Wallace, 462 U.S. 296,

303 (1983) (“[M]ilitary correction board] decisions are

subject to judicial review [by the federal courts] and can be

set aside if they are arbitrary, capricious, and not based on

substantial evidence.”’)

D. Judgment On The Administrative Record.

The standard of review for a Motion for Judgment on the

Administrative Record. pursuant to RCFC 56.1. 1s similar but

not identical to a motion under RCFC 56 for summary

judgment. See Bannum, Inc. v. United States, 404 F.3d 1346,

1355 (Fed. Cir. 2005). The inquiry on a motion for summary

judgment is whether the moving party has proved its case as a

maiter of fact and law or whether a genuine issue of material

fact precludes judgment. See Anderson vy. Liberty Lobby,

Inc... 477 U.S. 242, 247-48 (1986). In contrast, the standard

of review on a Motion for Judgment on the Administrative

Record ts narrower, 1.¢.. given all the disputed and

undisputed facts. whether the plaintiff has meet the burden of

proof to show that the decision was not in accordance with

the law. See Bannum, 404 F.3d at 1357 (instructing the court

to make “factual findings under RCFC 56.1 from the

[limited] record evidence as if it were conducting a trial on

the record.”). In the case of a final military decision, the

review of the Administrative Record further is limited to

determining whether applicable procedures were followed or

not and is supported by “substantial evidence.” See Heisig,

719 £.2d at 1156 (“[C]ourts cannot substitute their judgment

for that of the military departments when reasonable minds

could reach differing conclusions on the same evidence.”).

Specifically, the court may not retry the case on the merits.

Id. at 1157.

E. The Court’s Resolution of the Issues in This

Case.

1. The SAFPC’s May 19, 1999 And

AFBCMR’s June 3, 2001 Final Decisions

Were Supported By Substantial Evidence.

The First and Fifth Causes of Action allege that the

SAFPC’s May 19, 1999 final decision to retire Plaintiff and

AFBCMR’s June 3, 2001 final decision to deny Plaintiff's

request to revoke his August 19, 1999 involuntary disability

retirement were arbitrary, capricious, an abuse of discretion.

and unsupported by substantial evidence. See, e.g.,

Compl. {| 10, 19-22, 24,29,31,39, 52-53; see also

Compl. “| 121-198. The Compiaint also alleges that the

records and proceedings leading to Plaintiff's disability

retirement were in error, unjust, and should be deleted from

also Det. App. at |. The linchpin to these claims 1s the

allegation that the Psychiatric Resident's diagnosis and

January 13, 1999 Narrative Summary were contrary to and

directly confronted by evidence that Plaintitf provided to the

multiple evaluation boards through personal testimony,

affidavits, and legal briefs. See, e.g., Compl. {] 9-11, 22, 24,

29, 39-44; see also Def. App. at 6, 9-45, 74-75, 107-126, and

127. Indeed, if Plaintiff had done so, the President of the

FPEB indicated that he would have requested further

evaluation. See Def. App at 67. Plaintiff, however, failed to

do so. Plaintiff never supplied the MEB, IPEB, FPEB, or

SAFPC with any independent medical evidence to contradict

the diagnosis of the Psychiatric Resident or the

January 13, 1999 Narrative Summary.

Although AFBCMR was provided with an evaluation

conducted by a VA physician, that evaluation was qualified

since the VA physician did not have access to Plaintiff's prior

meetings or medical records. See Def. App. at 4, 54.

AFBCMR not only considered the unanimous findings of the

MEB, I[PEB, FPEB, and SAFPC, but also requested a

separate advisory opinion of a Chief Medical Consultant

from the Air Force personnel Command's Physical Disability

Division (“AFPC/DPPD”), who independently reviewed

Plaintiff's medical records, VA physician evaluation,

pleadings, and prior testimony submitted by Plaintiff. See

Def. App. at 2-3. AFBCMR concluded that “after a thorough

review of [Plaintiff's] submission and his medical records,

we are not persuaded by the evidence provided that he was

improperly evaluated and that the information considered by

the various medteal boards was erroneous or inaccurate.” /d.

at 3-4.

The record evidences that all five separate tribunals that

considered Plaintiff's fitness to continue to serve in the Air

Force were supported by substantial evidence and their

discretion properly was exercised pursuant to applicable

federal statutes, Department of Defense regulations, and

Air Force instructions. Therefore. the court has determined

that the SAFPC’s May 19, 1999 final decision and the

AFBCMR’s June 3, 2001 final decision not to revoke the

-4

FPEB’s recommendation to retire Plaintiff due to disability

were supported by substantial evidence.

2. Other Statutory And/Or Regulatory Related

Claims Alleged Do Not Evidence Error By

The MEB, IPEB, FPEB, SAFPC, And/Or

AFBCMR,

The Complaint also recited other statutory and/or

regulatory related claims that require only brief comment.

First, the Complaint seeks “bad faith” damages because the

Air Force failed to allow Plaintiff to cross-examine the

Psychiatric Resident. See Compl. "| 54-67 (Second Cause of

Action). The FPEB President’s denial of Plaintiff's request,

however, was well within the Board’s discretion as set forth

in the Air Force Physical Evaluation for Retention,

Retirement, and Separation Instruction AFI 36-3212. Section

3.48 therein provides: “HQ AFPC/DPPD will establish and

provide to HQ AFPC/DFFDF the formal hearing format and

procedures.” Pl. App. at 133. Since the Air Force Personnel

Command has not established any formal guidance

concerning FPEB procedure, issues regarding what witnesses

are competent to testify and the scope thereof have been left

iv the discretion of the FPEB President. See Gilligan v.

Morgan, 413 U.S. 1, 10 (1973) (lacking any specific

regulation “(t]he complex, subtle and professional decisions

as to the composition, training, equipping and control of a

military force are essentially professional military

judgments.”). Therefore, the Administrative Record does not

support Plaintiff's allegations of bad faith. Moreover.

Congress granted the Secretaries of the Armed Forces broad

discretion to administer the military. Although the Air Force

instructions do not specifically address the ability to

cross-examine any witness, Plaintuff did not provide any

evidence to overcome “the strong, but rebuttable,

presumption that administrators of the military, like other

public officers, discharge their duties correctly, lawfully, and

in good faith.” Saunders v. United States, 594 F.2d 804, 813

(Ct. Cl. 1979); see also 10 U.S.C. § 1216."°

Second, the Third Cause of Action alleged that the medical

evidence presented during the entire disability evaluation

process never overcame the “presumption of fitness,”

established by in AFI 36-3212 at § 3.17.'’ See

Compl. {§ 68-103. The Administrative record, however,

evidenced that the “presumption of fitness” was overcome in

this case by the diagnosis of several physicians that Plaintiff

had a disability that precluded further service in the

Air Force. See Def. App. at 65; see also Def. Supp. Ex. at

9-12. Therefore, as a matter of law, it is not relevant if

Plaintiff may have been able to perform his duties for the

twelve month period prior to his retirement, as a matter not

contested in the Administrative Record.

The Fourth Cause of Action also alleged that ‘due weight”

was not afforded the VA physician’s December 10, 1999

examination that rendered the AFBCMR decision

unsupported by substantial evidence. As previously

3. The Complaint Fails To Allege A Violation Of

Plaintiff's Constitutional Rights In This Case.

'" 10 U.S.C. § 1216 provides: “The Secretary fof the Air Force] has

all powers, functions. and duties incident to the determination under this

chapter of -(1) the fitness for active duty of any member of an armed

force under his jurisdiction] .|"

‘AFI 36-3212 at § 3.17 provides: “Presumption of Fitness. The

PEBs will presume a member fit if he or she has been able to do his or her

duty satistactoriyv in the 12 months before a scheduled retirement.... The

presumption of fitness may be overcome in the following circumstances:

3.17.1. Within the presumpnuve period an acute. grave illness or injury

incurs that would prevent the member trom pertorming further duty if he

or she were not retiring[.]” Det. App. at 131.

discussed, the VA physician’s December 10, 1999 evaluation

was qualified and the record evidences that the evaluation

was considered by the AFBCMR. See Def. App. at 2-3.

The First, Second, and Fifth Causes of Action allege

violations of Plaintiff's constitutional rights. As discussed

herein, none of these claims are applicable in this case.

a. The Confrontation Clause Of The Sixth

Amendment To The United States

Constitution Is Not Applicable In This Case.

The Confrontational Clause of the Sixth Amendment to the

United States Constitution provides that in all criminal cases

the accused shall enjoy the right to be confronted by adverse

witnesses. See Delaware v. Van Arsdall, 475 U.S. 673, 680

(1986) (“We think that a criminal defendant states a violation

of the Confrontation Clause by showing that he was

prohibited from engaging in otherwise appropriate

cross-examination designed to show a prototypical form of

bias on the part of the witness, and thereby “to expose to the

jury the facts from which jurors...cculd appropriately draw

inferences relating to the reliability of the witness.”) In this

case, to invoke the Confrontation Clause to compel the

testimony of the Psychiatric Resident, Plaintiff would have

had to be separated from the service with a “Dismissal”

adjudged as a part of a federal criminal conviction from a

General Court-Martial. See Manual for Courts-Martial,

Rule 1003(b)(8)(A).'*

Plaintiff cites Greene v. McElroy, 360 U.S. 474, 493(1959)

and Bland v. Connally, 293 F.2d 852. 856-57

* Dismissal is the only type of punitive discharge applicable to military

officers and 1s equivalent to either Dishonorable or Bad Conduct

Discharge. See RCM 1003(b, 8B). A Bad-Conduct Discharge is

punishment for conduct of either a civilian or military nature that does not

rise to the level of a Dishonorable Discharge. See RCM 1003( by 8 4C}.

(D.C. Cir. 1961) to support his claim that the United States

Constitution gives him a right to cross-examine the

Psychiatric resident who wrote the January 13, 1999

Narrative Summary used during the disability retirement

process. See Pl. Mot. Partial J. Admin. Rec. at 23-24

(“Plaintiff and the FPEB had ‘no safeguard for testing by

cross-examination’ the statements of these absent witnesses

to ‘uncover inconsistencies, lapses in recollection, and

bias[.]""’); see also Compl. § 12. Plaintiff's argument,

however, ignores a fundamental distinction between these

cases and his own. In both cases, the individuals challenging

the Department of defense and the Secretary of the Navy's

administrative decisions were denied the opportunity to

cross-examine unidentified accusers who provided direct oral

testimony to the review boards. See, e.g., Greene 360 US. at

493 (holding that the Department of Defense’s security

clearance program, under which affected persons may lose

their civilian jobs if they are found unfit to hold a clearance,

violated the traditional procedural safeguards of

confrontation and cross-examination); Bland, 293 F.2d at

856-57 (holding that the Secretary of the Navy did not have

authority to issue a Other Than Honorable discharge to a

reservist for alleged criminal conduct engaged in during

inactive status, without permitting reservist to confront the

Government's witnesses even in an administrative hearing).

In this case, Plaintiff was retired with a medical disability.

Therefore. the Confrontation Clause did not attach to

proceedings before the MEB. IPEB, FPEB. FPEB, SAFPC,

or AFBCMR - in this case the nght to cross-examine the

Psychiatric Resident regarding the January | 3. 1999

Narrative Summary.

b. The Due Process Clause of the Fifth

Amendment To The United States

Constitution Was Not Violated In This

Case.

In addition, the Complaint alleges that Plaintiff's counsel’s

inability to cross-examine the Psychiatric Resident during

proceedings before the MEB, IPEB, FPEB, SAFPC, or

AFBCMR also violated the Due Process Clause of the

Fifth Amendment to the United States Constitution. See,

e.g., Compl. 4 1-2,6, 76, 105, 112, 116, 118, 137, 141.

Plaintiff contends such cross-examination was essential since

all of the Air Force’s subsequent actions resulting in his

retirement were rendered based on the FPEB’s decision that

Plaintiff was no longer fit for military service. /d. As

previously explained, Plaintiff has no right in this case to

compel the testimony or to cross-examine any witness. In

light of the five tnbunals that afforded Plaintiff a hearing,

including the submission of pleadings and live testimony

from Plaintiff, the court has determined that Plaintiff had

“due process” in this case.

The Complaint also alleges that Plaintiff's disability

retirement deprived him of the right to liberty under the

Due Process Clause of the Fifth Amendment to the

United States Constitution, because of the stigma associated

with his retirement rises to the level of a punitive discharge.

See Compl. 4 13.

Only a Dismissal, Dishonorable, Bad Conduct, or Other

Than Honorable Discharge can qualify as types of military

separations that limit Fifth Amendment liberty interests,

because they may prevent a discharged person from

qualifying for certain types of employment, receiving federal

benefits. or voting in federal and state elections. See

38 U.S.C. § 5303; see also 10 U.S.C. § 1553:

42 U.S.C. § 1973 gg-6(g)(1). In this case, Plainuffs

* [n cases of reurement tor combat injury or service-incurred

disability prior to reaching the statutory 20 vear mark. service members

are granted the same privileges as those who completed their required

service. See jOU SC. § 120d)

retirement, even for disability, signifies only the successful

completion of twenty or more years of Honorable Service.'”

Therefore, the Air Force’s decision to retire Plaintiff for

disability did not deprive Plaintiff of a liberty interest in any

future civilian employment or any other capacity. See TR at

32 (“I sincerely doubt these employees are seeing his

DD Form 214 that says retired for mental disability. It

probably just says retired with an honorable discharge and

amended.”

c. The Takings Clause Of The Fifth

Amendment To The United States

Constitution Is Not Applicable In This

Case.

In addition, the Complaint alleges a violation of the

Takings Clause of the Fifth Amendment to the United States

Constitution. It is well settled that in order to bring such a

claim under the Fifth Amendment,” a plaintiff must have a

private property interest at the time of the alleged taking. As

the United States Supreme Court restated in an unanimous

opinion less than a week ago in Lingle v. Chevron U.S.A.,

Inc., U.S. _, 125 S. Ct. 2074 (2005):

The Takings Clause of the Fifth

Amendment... does not prohibit the taking of

private property. but instead places a condition

on the exercise of that power.’ In other words,

it ‘is designed not to limit the governmental

interference with property nghts per se, but

” The Fitth Amendment to the United States Constitution provides that

no person shall be “deprived of life. liberty. or property without due

process of law: nor shall private property be taken for public use without

just compensation.” U.S. CONST. amend V, cl. 4.

rather to secure compensation in the event of

otherwise proper interference amounting to

taking.’... The paradigmatic taking requiring

just compensation is a direct government

appropriation or physical invasion of private

property.

/d. at 2080-81 (emphasis in original) (citations omitted); see

also Ciernega Gardens v. United States, 33\ F.3d 1319, 1328

(Fed. Cir. 2003) (“[T]he complaining party must show it

owned a distinct property interest at the time it was allegedly

taken[.]”).

The Complaint alleges that 10 U.S.C. § 633 creates a

vested property right affording Plaintiff the nght to continue

serving in the Air Force until he reaches 28 years of service.

See Compl. 4 14. Plaintiff has misread this statute.”' As a

matter of law, it is well settled that employment as a military

officer is not a vested property interest. See Norman vy.

United States, 392 F.2d 255, 259 (Ct. Cl. 1968) (“The

principle is well established that there is no vested right to

federal employment or to the privileges of retirement

thereby.”); see also Paskert v. United States, 20 Ct. Cl. 65, 77

(1990) (“[S]Jervice members have no right to remain on active

duty, and their rights are defined by the applicable statutes

and regulations.”). Title X only codifies the maximum years

of service that a military officer must accrue prior to reaching

mandatory retirement. See 10 U.S.C. § 630-636.

In this case, although the Air Force utilized Plaintiff's high

“' 10 U.S.C. § 633 provides: “{EJach officer of the Regular Army,

Regular Air Force, or Regular Marine Corps who holds the regular grade

of lieutenant colonel. and each officer of the Regular Navy who holds the

regular grade of commander, who is not on a list of officers recommended

for promotion to the regular grade of colonel or captain, respectively,

shall, if not earlier retired, be retired on the first day of the month after

the month in which he completes 28 years of active commissioned

service.” (emphasis added.)

year tenure date for administrative and retirement planning

purposes, the Air Force was not obligated to allow Plaintiff to

continue to serve until that date. In fact, 10 U.S.C. § 633

specifically states that it only applies if the service member

has not been retired. Congress has authorized the military to

retire members determined unfit to perform the duties of their

office, grade, rank, or rating because of physical disability

regardless of length of service. See 10 U.S.C. § 1201(a).

Therefore, the Secretary of the Air Force had legal authority

to retire Plaintiff due to his physical disability, based on the

FPEB determination that Plaintiff was no longer fit to

perform the duties of his office. /d.

CONCLUSION

For these reasons, the Government’s May 28, 2004 Motion

for Judgment Upon the Administrative Record is granted and

the January 26, 2004 Complaint is dismissed.

IT IS SO ORDERED.

Susan G. Braden

Judge

ADDENDUM:

After graduating from West Point, Plaintiff devoted his

adult life in the service of our country. The stress of

extended duty, particularly abroad, today is recognized as a

major threat to the health of military service members. See

Matthew J. Friedman. Posttraumatic Stress Disorder: An

Overview, A National Center for PTSD Fact Sheet,

United State Department of Veterans Affairs at

http: www.ncptsd.va.gov facts general fs overview html.

Plaintitf was not immune trom the effects of that extended

Stress And, as a result, he was retired involuntarily. See

What is Posttraumatic Stress Disorder, A National Center for

PTSD Fact Sheet, United States Department of Veterans

Affairs at

http://www.ncptsd.va.gov/facts/general/fs what is _

Ptsd.html (“It is generally thought that the best way to

diagnose PTSD-or any psychiatric disorder...is to combine

findings from structured interviews and questionnaires with

physiological assessments. A multi-method approach

especially helps address concerns that some patients might be

either denying or exaggerating their symptoms.”).

The record in this case is clear that Plaintiff did not have

the benefit of a multi-method approach” or drug therapy.

Therefore, Plaintiff does not appreciate that even if he 1s

absolutely correct that former President Clinton may have

utilized strategy from Plaintiff's AWC research paper,

without proper attribution, the means and manner in which

Plaintiff chose to express that concern and his perception

about those events adversely affected his continued ability to

serve as an officer in the Air Force We now know that PTSD

also often “is associated with the increased likelihood of

co-occurring psychiatric disorders [and] [i]n a large-scale

study, 88 percent of men...with PTSD met criteria for

another psychiatric disorder.” /d. at 3. The record in this

case is also clear that the Air Force did not afford Plainuff “a

variety of forms of psycho-therapy and drug therapy [even

though] some treatments appear quite promising.” /d. at 4.

Although the court has no authority to address that situation,

if Plaintiff had been able to pursue those options, perhaps this

case could have been avoided.

The court is confident that Plaintiff understands that he

may now avail himself of this assistance through the VA.

Che circumstances surrounding Plaintiff's retirement may

make this option akin to tearing a scab off an unhealed

wound. Plainuff. however. has exhibited intellect, courage.

and tenacity in the past and in this proceeding. Therefore, the

court urges Plaintiff once again to call on those resources and

reconsider allowing the VA professionals to conduct a

thorough medical analysis of all the circumstances

surrounding his retirement and help him work toward

achieving much needed closure and renewal. Although the

court does not have authority to afford Plaintiff a full

measure of “justice,” VA medical professionals are capable

of doing so and should be given the opportunity. Plaintiff has

a great deal of knowledge in the critical field of physics and

talent that can be brought to bear in starting a new and even

more productive chapter 1n his life. The court respectfully

requests that Plaintiff undertake that initiative.”

** Professor O'Reilly continues to be available to work with Plaintiff to

achieve this objective. In the alternative, at the court's request,

Ronald B. Adams, Joint Executive Director, National Veterans Legal

Services Program, Washington, D.C., stands ready and willing to afford

Plaintiff access to local resources to facilitate interface with VA medical

and other professionals towards this objective. At the conclusion of the

process, it may be possible for Plaintiff to reproach the AFBCMR, with

counsel, to ascertain what options for reconsideration and correction may

be available. Again, the court respectfully requests Plaintiff to work with

VA professionals and outside counsel to explore that option at the

appropriate time.

ORIGINAL

In the United States Court of Federal Claims

NO. 04-90 C FILED

JUN 26 2006

JOHN DOE, U.S. COURT OF

FEDERAL CLAIMS

v. JUDGMENT

THE UNITED STATES

Pursuant to the court’s Order, filed June 26, 2006,

vacating the judgment of June 30, 2005, and directing a new

entry of judgment,

IT IS ORDERED AND ADJUDGED this date,

pursuant to Rule 58, that the complaint ts dismissed.

Brian Bishop

Clerk of Court

June 26. 2006 By: s

re number of copies and listing of all plainutts. Filing tee ts

$455.00

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

2006-5119

JOHN DOE,

Plaintiff-Appellant,

UNITED STATES,

Defendant-Appellee.

ORDER

sfy

NOTE: This order is nonprecedential.

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

ORDER

Before Mayer, Circuit Judge, Rader, Circuit Judge, and Prost,

Circuit Judge.

A petition for rehearing having been filed by the

Appellant,

UPON CONSIDERATION THEREOF, tt is

ORDERED that the petition for rehearing be,

and the same hereby is, DENIED.

The mandate of the court will issue on

May 29, 2007.

FOR THE COUR!

Jan Horbaly

Clerk

Dated 05.01/2007 FILED

U.S. COURT OF APPEALS FOR

ec: John Doe THE FEDERAL CIRCUIT

Gregory Thomas Jaeger MAY - ! 2007

DOE V US, 2006-5119 JAN HORBALY

(CFC-04-C V-90) CLERK

§ U.S.C. § 706

“To the extent necessary to decision and when presented,

the reviewing court shall decide all relevant questions of law,

interpret constitutional and statutory provisions, and

determine the meaning or applicability of the terms of an

agency action. The reviewing court shall - (1) compel agency

action unlawfully withheld or unreasonably delayed; and (2)

hold unlawful and set aside agency action, findings, and

conclusions found to be — (A) arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law; (B)

contrary to constitutional right, power, privilege, or

immunity; (C) in excess of statutory jurisdiction, authority, or

limitations, or short of statutory nght; (D) without observance

of procedure required by law; (E) unsupported by substantial

evidence in a case subject to sections 556 and 557 of this title

or otherwise reviewed on the record of an agency hearing

provided by statute: or (F) unwarranted by the facts to the

extent that the facts are subject to trial de novo by the

reviewing court. In making the foregoing determinations, the

court shall review the whole record or those parts of it cited

by a party, and due account shall be taken of the rule of

prejudicial error.”

Rule 11 of the United States Court of Federal Claims

“Rule 11. Signing of Pleadings, Motions, and Other

Papers; Representations to Court; Sanctions

(a) Signature. Every pleading, motion, and other paper

shall be signed by or for the attorney of record in the signing

attorney's own individual name, or, if the party is not

represented by an attorney, shall be signed by the party. Each

paper shall state the signer’s address and telephone number,

if any. Except when otherwise specifically provided by rule

or statute, pleadings need not be verified or accompanied by

affidavit. An unsigned paper shall be stricken unless the

omission 1s corrected promptly after being called to the

attention of the attorney or party.

(b) Representation to Court. By presenting to the court

(whether by signing, filing, submitting, or later advocating) a

pleading, written motion, or other paper, an attorney or

unrepresented party is certifying that to the best of the

person’s knowledge, information, and belief, formed after an

inquiry reasonable under the circumstances,

(1) it 1s not being presented for any improper purpose,

such as to harass or to cause unnecessary delay or needless

increase in the cost of litigation:

(2) the claims, defenses, and other legal contentions

therein are warranted by existing law or by a nontrivolous

argument for the extension, modification, or reversal of

existing law or the establishment of new law;

(3) the allegations and other factual contentions are

warranted on the evidence or, if specifically so identified, are

likely to have evidentiary support after a reasonable

opportunity for turther investigation or discovery: and

(4) the denials of factual contentions are warranted on

the evidence or, if specifically so identified, are reasonable

based on a lack of information or belief.”

NOTE: Subsections (c) “Sanctions” and (d) “Inapplicability

to Discovery” have been omitted.

40)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.