Petition for Writ of Certiorari — Shaffer v. United States
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9031635 JUN 2 - 200
NO.
IN THE
Supreme Court of the United States
CURTIS SHAFFER
Petitioner
V.
THE UNITED STATES
Respondent
On Petition for Writ of Certiorari
To The United States Court of Appeals for the Federal
Circuit
PETITION FOR WRIT OF CERTIORARI
JOHN B. WELLS
Counsel of Record
LAW OFFICE OF JOHN B. WELLS
317 PORTSMOUTH DRIVE
SLIDELL, LA 70460-8429
985-641-1855
II
QUESTIONS PRESENTED FOR REVIEW
Whether the Federal Circuit Erred in Holding That a
Resort to Administrative Remedies Does Not Toll the
Statute of Limitations When This Unique Position is
In Conflict With the Other Circuit Courts of Appeal
Whether a Reservist Can Maintain a Cause of Action
for Military Pay if He is the Victim of an Improper
Discharge
TABLE OF CONTENTS
Questions Presented for Review .............ccccccces i
Table of Cited Authorities .......... ccc cece ccccccs IV
ee ree Vii
Corporate Disclosure Statement .................... Vii
Pertinent Constitutional Provisions, Treaties, Statutes,
Ordinances and Regulations ....................05. Vili
Sentennent OF TPA occ s ox ksen take l
Fe EE re ro ee 3
I. The Federal Circuit Erred in Holding That a Resort to
Administrative Remedies Does Not Toll the Statute of
Limitations When This Unique Position is In Conflict
With the Other Circuit Courts of Appeal ......... 3
A. The Weight of Opinion Is That Referral to the
Correction Board Is a Mandatory
Administrative Requirement ............ 3
B Under the Law of the Case Doctrine, the
Requirement to Seek Relief from the
Correction Board and Discharge Review
Board Was Mandatory ................. 7
of Under the Doctrine of Equitable Tolling, the
. Statute of Limitations Should Not Be Allowed
to Bar Plaintiff's Action ................ 9
li A Reservist Can Maintain a Cause of Action for
Military Pay if He is the Victim of an Improper
ERO... 6s 0s0d sku 10
Come... 5 « s 0assneduns cee eee 12
Appendix
Decision of the United States Court of Appeals for the
Pr re ee Appendix 1
Decision of the United States Court of Federal
CN. 05 swe cee a pine ee Appendix 2
il
Decision of the United States Court of Appeals for
ee Bets CWSU . wn cece cect .... Appendix 12
Decision of the United States District Court for the
Western District of Tennessee ........ Appendix 16
Text of Pertinent Constitutional Provisions,
Treaties, Statutes, Ordinances and
a ee abn a 4 hk 046-64 8 Appendix 23
iil
TABLE OF CITED AUTHORITIES
Cases.
Blassingame v. Secretary of the Navy, 811 F.2d 65 (2d
SN a bce cei eas eae ke Ob nae Cae e we aS 4
Brandt v. Hickel, 427 F.2d 53 (9" Cir. 1970) .......... 10
Champagne v. Schlesinger, 506 F.2d 979 (7th Cir.1974) .. 4
Christianson v. Colt Industries 486 U.S. 800 (1988) ..... 8
Clinton v. Goldsmith, 526 U.S. 529 (1999) ............. 4
Cunningham v. United States, 549 F.2d 753, 212 Ct.Cl. 451
EPR eee Cee eens en near n eT ames 7
Darby v. Cisneros, 509 U.S. 137 (1993) ............. 6, 7
Detweiler v. Pena, 38 F.3d 591 (D.C. Cir. 1997) ........ 5
Dougherty v. United States Navy Bd. for Correction of Naval
Records, 784 F.2d 499 (3d Cir.1986) ................. 4
EEOC v. Kentucky State Police Dep't, 80 F.3d 1086 (6th
ce RS, Fer ee ee re ee eae 9
Gilmore v. United States, 228 Ct.Cl. 829(1981) ......... 5
Guerra v. Scruggs, 942 F.2d 270 (4th Cir. 1991) ........ 4
Graham v. Henderson, 89 F.3d 75 (2d Cir.1996) ........ 8
Green v. United States, 260 F.3d 78 (2™ Cir. 2001) ...... 8
Haines v. Kerner, 404 U.S. 519 (1972) ................ 8
Hodges v. Callaway, 499 F.2d 417 (Sth Cir.1974) ....... 4
Holmberg v. Armbrecht, 327 U.S. 392 (1946) ........... 9
Horn v. Schlesinger, 514 F.2d 549 (8th Cir. 1975) ....... 4
Hudson v. McHugh, 148 F.3d 859, 864 (7th Cir.1998) .... 8
Hurick v. Lehman, 782 F.2d 984 (1986) ............... 3
Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990),
reh'g denied, 498 U.S. 1075 (1991) ................... 9
Joint Anti-Facist Refugee Committee v. McGrath, 341 US.
RE ab ig ae a cues vee a ee ae 9
Larionoff v. United States, 365 F.Supp. 140 (D.C.D.C.1973),
remand on other grounds 533 F.2d 1167, 175 U.S. App.
D.C. 32, cert. grant, 429 U.S. 997 aff'd, 431 U.S. 864 ... 11
Linfors v. United States, 673 F.2d 332 (11th Cir. 1982) ... 4
iV
Martinez v. United States, 333 F.3d 1295 (Fed. Cir. 2003)
cert. denied 124 S.Ct. 1404 (2004) ......... 3, 5, 7, 10, 11
Mindes v. Seaman, 453 F.2d 197(Sth Cir.1971) ......... 4
Ortiz v. Secretary of Defense, 41 F.3d 738 (D.C. Cir. 1994) 4
Osborn v. United States, 47 Fed. Cl. 224 (2000). ....... 3
Parisi v. Davidson, 405 U.S. 34 (1972) ..............6. 4
Perez v. United States, 850 F.Supp 1354 (1994) ......... 7
Saad v. Dalton, 846 F.Supp 889 (1994) ......0........ 7
Seitzinger v. Reading Hosp. and Med. Ctr., 165 F.3d 236
CORT FIO Oe, iv ccs hndeeneienes eee 9
Sherengos v. Seamans, 449 F.2d 333 (4" Cir. 1971) ...... 5
Sims v. Fox, 492 F.2d 1088 (5" Cir. 1974), on reh’g 505 F.2d
S57, cert dented 421 U.S. WOU) occ ccccwcvccccuccess 5
Smith v. Marsh, 787 F.2d 510 (10th Cir.1986) .......... 4
St. Regis Paper Co. v. United States, 368 U.S. 208 (1961) 10
Steel Improvement & Forge Co. v. United States, 174 Ct.Cl.
rw se, | re a co. Srl :
Suro v. Padilla. 441 F.Supp. 14 ( D.C. Puerto Rico 1976)
Watson v. Perry, 18 F.Supp 1403 (W.D. Wash. 1996) ... ;
Statutes.
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Pe he SS oak vs padéh akan bee 5, 10, 11
Bis Oe S| Arner me eer urine riper 8 SS. © 6
OP Uh. Oe x vos 5000 eb eee eee eee 6
10 U.S.C. § 10147 ..... PETE NET ee li
ae das Ee 5 4000 d00004nkeet eee eee Vii
ph fa rr me erry eye 12
Ft an BE vi dnsed x0 oe eee 11
ot Un BE 6 h400<60558 eee eee 12
Rules of the Supreme Court of the United States.
gg ee rl ee vii, 8, 10, 12
WGP GPS ks kd veedsese gee eee eee Vii
a
i one obb en e0keebies ethene Vil
Other Authorities.
SEE OB EGD his ccevvescedesvewewecueessesents 5
vi
BASIS FOR JURISDICTION
These issues are properly before the Supreme Court of
the United States pursuant to 28 U.S.C. § 1254 and Rule 10
of the Supreme Court rules which govern the review on
Certiorari. The final judgment of the United States Court of
Appeals for the Federal Circuit was entered on March 8,
2004. The submission for filing is within the 90 day
requirement of Rule 13.1 of the Supreme Court Rules. This
proceeding does not question the constitutionality of any Act
of Congress or any State Legislature. Consequently, the
provisions of Rule 29.4(b) and (c) do not apply.
CORPORATE DISCLOSURE STATEMENT
This document has not been filed on behalf of a
nongovernmental corporation within the scope of Rule 29.6
Vii
PERTINENT CONSTITUTION ROVISIONS
TREATIES, STATUTES, ORDINANCES AND
REGULATIONS
The following constitutional provisions treaties,
statutes, ordinances and regulations are applicable to this
proceeding:
10 U.S.C. § 938
10 U.S.C. § 1552.
10 U.S.C. § 1557
10 U.S.C. § 1558
1WVU.S.C. § 10147
28 U.S.C. § 1254
37 U.S.C. § 101
37 U.S.C. § 204
37 U.S.C. § 206
32 C.F.R. § 723.3
Pertinent text of citations are set out in the appendix.
Vill
STATEMENT OF THE CASE
Curtis Shaffer was hired by the Army Reserves as a
“dual status technician” on July 24, 1983. As a condition of
employment, plaintiff was required to maintain an Army
Reserve unit military membership. Shafer was a career
reservist who has served his country loyally and with honor.
In February of 1991, Shaffer applied and was selected
for a civilian position associated with a Master Sergeant (E-8)
Army Reserve position with the 3291 USARF School. He
never accepted the position but was still promoted to Master
Sergeant (E-8) on 20 February 1991. On March 25, 1992, he
was relocated to Miami Florida to accept another position.
This billet was a GS-9 civilian and Sergeant First Class
(SFC) (E-7) military position.
In April 1992 orders were issued rescinding his
promotion and returning him to the grade of E-7 but through
an oversight, the orders were not sent to Shaffer. On July 16,
1992, Shaffer was directed to stop wearing the E-8
designation and to display E-7 rank indicators. He
immediately complied.
On August 5, 1992, he finally received the orders rescinding
his advancement.
On September 18, 1992, Shaffer made a protected
communication to Congressman Dante Fascell. On January
15, 1993, he received a letter of reprimand which was filed in
his permanent record. On February 23, 1993, plaintiff made
another protected communication to the Commander, 81st U.
S. Army Reserve Command requesting a formal investigation
into the matter. The communication was referred to the
Inspector General.
In reprisal for the protected communications, the
302™ Military Intelligence company issued a sep2ration order
indicating an intent to separate plaintiff from the military
service. Shaffer then submitted a complaint of wrongs
pursuant to Art. 138 of the Uniform Code of Military Justice
(10 U.S.C. § 938). It was denied on August 12, 1993.
On October 13, 1993, a board of officers was
convened at the Headquarters, 125™ Army Reserve
Command, to consider whether Shaffer committed
misconduct and whether he should be retained or separated.
The board voted 2-1 to find misconduct only for improperly
wearing rank insignia and recommended separation under
honorable conditions.
On December 13, 1993, plaintiff was discharged from
the Reserves with a general discharge-under honorable
conditions. On April 2, 1994, plaintiff was terminated from
his civilian position with the Army because of his failure to
maintain membership in the Reserves.
On November 19, 1994, plaintiff submitted an
application for correction of records to the Army Board for
Correction of Military Records.
He then filed a pro se complaint in the United States District
Court for the Western District of Tennessee (96-2204)
seeking relief inter alia under the Fifth Amendment to the
Constitution and requesting that his discharge be set aside.
The court dismissed the suit for failure to exhaust
administrative remedies on March 7, 1997. On June 19,
1997, the Army Discharge Review Board refused to upgrade
plaintiff's discharge. On February 25, 1998, the Army Board
for Correction of Military Records refused to correct his
record.
The United States Couri of Appeals for the Sixth Circuit
affirmed the district court on May 1, 1998.
The instant action was filed in the United States Court
of Federal Claims on October 20, 2000. That court dismissed
his suit on September 28, 2001. A timely notice of appal was
filed in the United States Court of Appeals for the Federal
Circuit. The matter was stayed pending the outcome in the
case of Martinez v. United States, 333 F.3d 1295 (Fed. Cir.
2003) cert. denied 124 S.Ct. 1404 (2004).
ARGUMENT
I. The Federal Circuit Erred in Holding That a
Resort to Administrative Remedies Does Not Toll
the Statute of Limitations When This Unique
Position is In Conflict With the Other Circuit
Courts of Appeal
A. The Weight of Opinion Is That Referral to
the Correction Board Is a Mandatory
Administrative Requirement
The issue in this case is ripe for review pursuant to
Rules 10(a) and (c) of the Rules of the Supreme Court of the
United States. The Federal Circuit stands alone in their
holding that the six year statute of limitations begins to run at
the time of discharge rather than the completion of final
action by the correction board or discharge review board.
Osborn v. United States, 47 Fed. Cl. 224, 233 (2000). See,
Martinez supra. In Martinez, a divided Federal Circuit,
meeting en banc, reaffirmed their previous decision in Hurick
v. Lehman,_782 F.2d 984 (1986). As discussed herein,
Hurick was wrong when it was issued and is still wrong
despite its reaffirmance in Martinez.
The Federal Circuit jurisprudence on this issue is
against the weight of authority. Most federal courts
throughout the nation require military members to resort to
the exhaustion of administrative remedies articulated by
Parisi v. Davidson, 405 U.S. 34, 37 (1972). In the military
context this requires a review of discharge proceedings by the
service record correction board. Champagne v. Schlesinger,
506 F.2d 979 (7th Cir.1974); Hodges v. Callaway, 499 F.2d
417 (Sth Cir.1974); Mindes v. Seaman, 453 F.2d 197, 201-02
(Sth Cir.1971); Linfors v. United States, 673 F.2d 332 (11th
Cir. 1982) (per curiam); Horn v. Schlesinger, 514 F.2d 549,
551 (8th Cir. 1975); Guerra v. Scruggs, 942 F.2d 270, 276
(4th Cir. 1991); Blassingame v. Secretary of the Navy, 811
F.2d 65, 71 (2d Cir.1987).
Although this Court has not addressed this matter
directly, they have noted that the military correction boards
are “final agency action.” Clinton v. Goldsmith, 526 U.S.
529 (1999) In light of Clinton, this Court should re-examine
the Federal Circuit rulings that exhausting remedies before a
correction boards does not toll the statute of limitations.
Reversal of this precedent would bring the Federal Circuit
into agreement with the other circuits that have examined this
matter.
If the resort to the correction board is mandatory, then
the statute of limitations begins to run at the time of their
final decision. Ortiz v. Secretary of Defense, 41 F.3d 738
(D.C. Cir. 1994); Dougherty v. United States Navy Bd. for
Correction of Naval Records, 784 F.2d 499, 501 (3d
Cir.1986); Smith v. Marsh, 787 F.2d 510, 512 (10th
Cir.1986). The courts below have recognized that when
pursuance of administrative remedies is a prerequisite to suit
then the statute of limitations is suspended or tolled by such
action. Steel Improvement & Forge Co. v. United States, 174
4
ATO TET GES SOEUR I NOR ORES” NRE Tata
Ct.Cl. 24, 29, 355 F.2d 627, 631 (1966); Gilmore v. United
States, 228 Ct.Cl. 829, 831 (1981).
The dispute between the Circuits continues to widen
in light of Martinez and the current failure of the Federal
Circuit to require exhaustion may act to deprive military
members of that alternative in seeking to correct injustice.
Prior to the enactment of the correction boards enabling
statute, 10 U.S.C. § 1552, the Congress was inundated with
private bills to correct records and injustice. The purpose of
establishing correction boards was to provide for correction
of military records and for review of discharges and
dismissals. Sims v. Fox, 492 F.2d 1088 (5" Cir. 1974), on
reh’g 505 F.2d 857, cert denied 421 U.S. 1011. See, also,
Suro v. Padilla, 441 F.Supp. 14 (D.C. Puerto Rico 1976).
This administrative “ body of last resort” freed Congress from
dealing with individual applications for corrections of
injustice to servicememebrs. Sherengos v. Seamans, 449
F.2d 333 (4" Cir. 1971).
Should the Federal Circuit position be upheld, it may
jeopardize the military member’s right to seek review under
the correction board. Statutorily and by regulation, the
applicant is required to submit his petition within three years
of the date of the discovery of the injustice. 10 U.S.C. §
1552(b), 32 C.F.R. 723.3(b). Both the statute and the
regulation provide for waiver in the interests of justice. Jd.
The courts have modified this provision, however. In
Detweiler v. Pena, 38 F.3d 591 (D.C. Cir. 1997), the court
held that the statute of limitations does not begin to run until
the applicant has left military service.
Congress has never adopted a firm time period for
consideration of an application. In § 544 the 1999 Defense
Appropriations Act, Congress enacted timeliness standards
?
for the military correction boards. PL 105-261, 112 Stat.
1920, 2021 (codified as 10 U.S.C. § 1557). This enactment
required that 50 percent of all petitions received during the
fiscal years 2001 and 2002 be decided within ten months of
submission. The law requires increased percentages in
subsequent years. Currently it is at 60 percent. While a court
order may accelerate the process somewhat, there is no firm
requirement for a correction board to complete action within
a specified time frame.
Consequently, it is conceivable that the delays
inherent in the correction board system could force the
service member with a choice of remedies. The time
standards are not mandatory and the correction board process
can and has taken several years. In the instant case it took
almost three and one half years for the correction board to
render its decision. Unless the Federal Circuit is reversed,
these type of time constraints could force a service member to
abandon the preferred Congressional remedy and seek the
more expensive and more difficult relief in the Court of
Federal Claims.
Nor can it be said that the adoption of 10 U.S.C. §
1558 strengthens the Federal Circuit’s position. Initially a
plain reading of the statute seems to indicate that unless
designated as a “special board” within the scope of 10 U.S.C.
§ 1558(b)(1)(A), a correction board is exempt from the
statute. 10 U.S.C. § 1558(g)(2). Thus it is inapplicable to the
present case.
This Court should grant certiorari in the instant case
because it represents an unsettled area of the law that should
be settled by this court. Since this Court’s decision in
Darby v. Cisneros, 509 U.S. 137 (1993), several district
courts have been confused as to the application of Darby. As
6
A LOPE NEE ER OO Reet oe SER:
a result, the law has become increasingly unsettled with the
decisions of many district courts in conflict with others.
Compare Saad v. Dalton, 846 F.Supp 889 (1994) with Perez
v. United States, 850 F.Supp 1354, 1360 (1994) and Watson
v. Perry, 918 F.Supp 1403, 1411 (W.D. Wash. 1996). The
effect of Martinez, supra, which claims that Darby applies in
the district courts but not in the Court of Federal Claims has
further heightened the confusion.
B Under the Law of the Case Doctrine, the
Requirement to Seek Relief from the
Correction Board and Discharge Review
Board Was Mandatory
It is well settled that there are circumstances where
recourse to a correction board becomes a mandatory remedy
which must be exhausted before judicial review is available.
Cunningham vy. United States, 549 F.2d 753, 212 Ct.Cl. 451
(Ct.Cl.1977).
When Mr. Shaffer sought relief from the district
court, his complaint was dismissed for failure to exhaust his
administrative remedies by applying to the Army Board for
Correction of Military Records {4BCMR) and Army
Discharge Review Board (AD”..5). The Sixth Circuit
affirmed.’ The plaintiff complied and sought to exhaust his
administrative remedies. This case is really a continuation of
the first case filed ana dismissed in the district court.
Consequently, their finding that Shaffer had to apply to the
administrative boards was binding on the court below.
' The Sixth Circuit did not explicitly address
administrative remedies since the plaintiff had exhausted his
remedies by the time the Sixth Circuit decided the case.
7
The court below found that the complaint filed in the
Tennessee court would not have been actionable in the Court
of Federal Claims. While the complaint filed in that court did
not specifically articulate a cause of action under the Tucker
Act, the various allegations constitute such a complaint.
Shaffer filed his original suit pro se. Pro se litigants
generally are entitled to a liberal construction of their
pleadings, which should be read "to raise the strongest
arguments that they suggest." Green v. United States, 260
F.3d 78, 83 (2™ Cir. 2001); Graham v. Henderson, 89 F.3d
_ 75, 79 (2d Cir.1996); See Haines v. Kerner, 404 U.S. 519,
520 (1972) (per curiam) (holding that the allegations in a pro
se complaint are "h[e]ld to less stringent standards than
formal pleadings drafted by lawyers.” In other words the
court should apply “liberal construction” of the pleadings of
individuals who proceed pro se “to give a pro se plaintiff a
break when, although he stumbles on a technicality, his
pleading is otherwise understandable." Hudson v. McHugh,
148 F.3d 859, 864 (7th Cir.1998).
i
'
i
ERE Some
The district court held that an application to the
correction board and discharge review board was mandatory.
This Court has found that federal courts should routinely
apply law-of-the-case principles to transfer decisions of
coordinate courts. Christianson v. Colt Industries 486 U.S.
800, 815 (1988).
Consequently, the instant case represents a
controversy within the scope of Rule 10(a) since the actions
of the court below are in direct conflict with the precedence
and the mandate of the Sixth Circuit and its district court.
Accordingly, granting certiorari on this issue is necessary to
resolve the contradictions between the circuits.
Rs Under the Doctrine of Equitable Tolling, the
Statute of Limitations Should Not Be Allowed
to Bar Plaintiff's Action
Under the doctrine of equitable tolling, a plaintiff may
sue after the statute of limitations has expired if he was
prevented from filing suit in a timely manner due to
inequitable circumstances. See Seitzinger v. Reading Hosp.
and Med. Ctr., 165 F.3d 236, 240 (3d Cir.1999); EEOC v.
Kentucky State Police Dep't, 80 F.3d 1086, 1094-95 (6th
Cir.1996). The doctrine of equitable tolling applies in suits
against the government as well as against private litigants.
Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96
(1990), reh'g denied, 498 U.S. 1075 (1991). This Court has
held that equitable tolling is read into the federal statute of
limitations. Holmberg v. Armbrecht, 327 U.S. 392, 397
(1946).
Here the plaintiff strictly followed the instruction of
the federal district court - apparently to his detriment. He
should not be punished now for acting in good faith upon the
directives of that court. Instead the doctrine of equitable
estoppel should act as a safety net to prevent this case from
being dismissed on such a harsh technicality. As Justice
Frankfurter said, “[t]he heart of the matter is that democracy
implies respect for the elementary rights of men, however
suspect or unworthy; a democratic government must therefore
‘practice fairness.” Joint Anti-Facist Refugee Committee v.
McGrath, 341 U.S. 123, 170 (1951) (Frankfurter, J
concurring). It is a sad day indeed if those who defend
democracy are unnecessarily deprived of the benefits of it. As
Justice Black once said:
Our Government should not by picayunish
haggling over the scope of its promise, permit
9
one of its arms to do that which, by any fair
construction, the Government has given its
word that no arm will do. It is no less good
morals and good law that the Government
should turn square corners in dealing with the
people than that the people should turn square
corners in dealing with their government.
St. Regis Paper Co. v. United States, 368 U.S. 208, 229
(1961) (Black, J., dissenting). Another court put it more
simply:
To say to these appellants, “The joke is on
you. You shouldn't have trusted us,” is hardly
worthy of our great government
Brandt v. Hickel, 427 F.2d 53, 57 (9" Cir. 1970)
The actions of the Federal Circuit are in direct
contravention with the holdings of this Court and the other
Circuits as delineated herein. Accordingly, pursuant to Rule
10(a), certiorari should be granted on this issue.
Il A Reservist Can Maintain a Cause of Action for
Military Pay if He is the Victim of an Improper
Discharge
The Court below by a 7-6 vote in Martinez and in the
instant case, considered the question of whether 10 U.S.C. §
1552 was a money mandating statute. The majority
incorrectly concluded that it was not. Judge Plager, who was
joined by the Chief Judge and four other Judges, believed that
10 U.S.C. § 1552 was a money mandating statute.
10 U.S.C. § 1552 authorizes the Secretary to correct
10
records and provides for the payment of monetary claims “if
necessary to correct an error or remove an injustice." 10
U.S.C. § 1552(a)(1) The statute further provides that the
Secretary:
may pay, from applicable current
appropriations, a claim for the loss of pay,
allowances, compensation, emoluments, or
other pecuniary benefits, or for the repayment
of a fine or forfeiture, if, as a result of
correcting a record under this section, the
amount is found to be due the claimant.
10 U.S.C. § 1552(c).
The Martinez dissent wisely notes that compensation
is required when a record is corrected, and for purposes of
establish jurisdiction, 10 U.S.C. 1552 is a money mandating
statute. Martinez, supra., (Plager, J. dissenting).
Other Circuits have taken a different approach. The
District of Columbia courts found that the purpose of
correction boards includes providing reimbursement of
compensation denied due to an incorrect or unjust record
entry. Larionoff v. United States, 365 F.Supp. 140
(D.C.D.C.1973), remanded on other grounds 533 F.2d 1167,
175 U.S.App.D.C. 32, cert. granted, 429 U.S. 997 aff'd, 431
US. 864.
Additionally, in its opinion the court below found that
the plaintiff improperly relied upon the Military Pay Act.
This analysis ignores the fact that as a reservist, plaintiff was
also required to perform 14 days active duty for training per
year. 10 U.S.C. § 10147. This brings plaintiff within the
scope of 37 U.S.C. 204(a). Plaintiff was a member of the
11
reserve component of a uniformed service. 37 U.S.C. §
101(3). 37 U.S.C. § 206 applies only to inactive duty while
the active duty for training the plaintiff is required to perform
is considered “active duty.” 37 U.S.C. 101(a)(18).
Consequently, certiorari is appropriate under Rule
10(a) because of a divergent view between the circuits.
CONCLUSION
For the reasons delineated herein, petition prays that a
writ of certiorari be issued to the United States Court of
Appeals for the Federal Circuit.
Portsmouth Drive
idell, LA 70460-8469
985-641-1855
12
NOTE: Pursuant to Fed. Cir. R. 47.6 this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
02-5030
CURTIS SHAFFER,
Plaintiff-Appellant
Ve
UNITED STATES
Defendant-Appellee
Judgment
ON APPEAL from the UNITED STATES COURT OF
FEDERAL CLAIMS
in CASE NO(S). 00-CV-626
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED
Per Curiam (CLEVENGER, RADER and BRYSON,
Circuit Judges).
AFFIRMED, See Fed. Cir. R. 36.
ENTERED BY ORDER OF THE COURT
Jan Horbaly, Clerk
DATED _ March 8, 2004
Appendix |
IN THE UNITED STATES COURT OF FEDERAL
CLAIMS
No. 00-626C
(Filed September 28, 2001)
FEE EEE +
CURTIS SHAFFER,
Plaintiff
THE UNITED STATES
Defendant
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TTT t ttt ttt ttt ttt ttt ttt ttt tt ee.
John B. Wells, Slidell, LA for plaintiff
Heide L. Hermann, Trial Attorney, Commercial |
Litigation Branch, Civil Division, Department of Justice, |
Washington, D. C. , with whom were Stuart E. Schiffer,
Acting Assistant Attorney General, David M. Cohen,
Director, Commercial Litigation Branch, and James M |
Kinsella, Deputy Director, for defendant.
Opinion and Order |
Appendix 2
a
This military pay case is before the court on
defendant’s motion to dismiss plaintiff's complaint as barred
by the statute of limitations and for failure to state a claim
upon which relief can be granted.
Facts
On July 24, 1983, plaintiff was hired by the Army
Reserves (Reserves)
as a “dual status technician.” Complaint at § II]. Asa
condition of employment, plaintiff was required to maintain
an Army Reserve unit military membership. On February 20,
1991, plaintiff was promoted to Master Sergeant (E-8).
However on December 13, 1993, plaintiff was discharged
from the Reserves with a general discharge under honorable
conditions. Thereafter, on April 2, 1994, plaintiff was
terminated from his civilian position with the Army for
failure to maintain Reserve membership.
Plaintiff's November 19, 1944 application for
correction of recrods to the Army Board for Correction of
Military Records (ABCMR) was denied on March 4, 1998.
The Army Discharge Review Board (DRB) alkso denied
plaintiffs application.
On February 1, 1996, during the ABCMR review,
plaintiff filed a complaint in the United States District Court
for the Western District of Tennessee for Fifth Amendment
relief and the set aside of his discharge. The district court’s
dismissal was affirmed by the United States Court of Appeals
for the Sixth Circuit.
Plaintiff's October 20, 2000 complaint alleges: (1)
violation of the Military Whistleblower Act, 10 U.S.C. §
1034, (2) violation of the Administrative Procedures Act
Appendix 3
(APA), 28 U.S.C. § 702, (3) the ABCMR’s improper failure
to correct his record, and (4) the Army DRB’s improper
failure to upgrade his discharge.
Defendant’s motion to dismiss argued that (1) the
statute of limitations had elapsed prior to plaintiff's filing of
his complaint and (2) the plaintiff failed o state a claim upon
which relief can be granted. See Rule 12(b)(4) of the Rules
of the United States Court of Federal Claims. (RCFC).
Discussion
A. Statute of Limitations
The statute of limitations, which is a jurisdictional
requirement of this court, is six years. See 28 U.S.C. § 2501
(2001). Claims, such as this, alleging wrongful discharge,
accrue on the date of discharge or separation from active
duty. Hurick v. Lehman, 782 F.2d 984, 986 (Fed. Cir.
1986). Plaintiff was discharged from the Army Reserves on
December 13, 1993, and filed this action more than six years
later, on October 20, 2000, after the statute of limitations had
lapsed. Plaintiff contends that the statute of limitations (1)
was tolled by filing his district court complaint, and (2)
should have been tolled equitably while he pursued
administrative remedies.
Plaintiff contends that the six year statute of
limitations was tolled by “constructive transfer” of the district
court complaint, filed February 12, 1996. By “constructive
transfer,” he means that the district court although it in fact
did not, should have transferred plaintiffs case to this court,
pursuant to 28 U.S.C. § 1631, which provides:
[T]he court shall, if it is in the interest of
Appendix 4
justice, transfer such action or appeal to any
other such court in which the action or appeal
could have been brought at the time it was
filed or noticed, and the action or appeal shall
proceed as if it had been filed in or noticed for
the court to which it is transferred on the date
upon which ti was actually filed in or noticed
for the court from which it was transferred.
28 U.S.C. § 1631. However, transfer to overcome the statute
of limitations may "ot be ordered if he transferee court would
have had no subjeci matter jurisdiction over plaintiff's claim
at the time it was filed in the transferor court. See James v.
Caldera, 159 F.3d 573 (Fed. Cir. 1998).
Plaintiff's complaint in the district court could not have been
entertained in this court, because he claimed racial
discrimination based on Title VII of the Civil Rights Act of
1964, 42 U.S.C. §1981, a claim over which this court has no
authority. See Elkins v. United States, 229 Ct. Cl. 607
(1981). Thus, plaintiff's case in district court was not eligible
for transfer to this court under 28 U.S.C. §1631.
Plaintiff erroneously relies upon Rothman v. United
States, 219 Ct. Cl. 595 (1979), for support of its
“constructive transfer” theory. In Rothman, a bankruptcy
trustee for an extended-care facility sued for reimbursement
of Medicare services. After a Medicare Provider Appeal
Committee denied full reimbursement, the trustee sought
relief in district court. Plaintiff's timely-filed complaint was
dismissed by the district court for lack of jurisdiction. Id. at
596. Two months later, and nine weeks after the statute of
limitations had elapsed, plaintiff filed his action in the Court
of claims. The Rothman court denied the motion to dismiss
Appendix 5
because, had plaintiff made a transfer motion, it could and
likely would have been granted. Id. at 596-97. The
Rothman court justified departing from the statute on the
grounds that the plaintiff had a very short time before the
statue of limitations expired to file his complaint in the Court
of Claims, as well as the plaintiff's “technical failure” to file
the transfer motion. This precedent, while binding, never has
been cited by the Court of Claims or Federal Circuit. In any
event, there is no question that Rothman is distinguishable,
because the Court of Claims in Rothman had subject matter
jurisdiction over the complaint(s).
B. Equitable Tolling
Plaintiff contends that the statute of limitations was
tolled equitable by
plaintiff's pursuit of administrative remedies following the
dismissal of the district court case. Statutory limitations on
actions are construed strictly, particularly where the
government is waiving sovereign immunity. Irwin v. Dep*
of Veteran’s Affairs, 498 U.S. 89, 95-96, 111 S. Ct. 452,
456-57 (1900)(“Federal courts have typically extended
equitable relief only sparingly.”). The Supreme Court and the
Federal Circuit have employed the doctrine under limited
circumstances: fraua, Bailey v. Glover, 88 U.S. 342 347
(1874); concealment of facts by the defendant, Japanese
War Notes Claimants Ass’n of the Phillipines, Inc. v.
~ United States, 178 Ct. Cl 630, 373 F.2d 356 (1967); or
timely filing a complaint in the wrong court, Irwin v. Dept.
of Veterans’s Affairs. 498 U.S. 89, 95-96, 111 S. Ct. 452,
458. Plaintiff here alleges no fraud, concealment of facts, or
other governmental misconduct that would have prevented
him form filing his claim within the statutory period specified
by 28 U.S.C. § 2501. While permitting equitable tolling in
Appendix 6
the circumstances above, the courts have precluded its use for
“garden variety” neglect. See Irwin, 498 U.S. at 96, 111 S.
Ct. at 458.
Plaintiff relies on decisions in other circuits to support
his argument that pursing administrative remedies equitable
tolls the statute. However, the Federal Circuit repeatedly has
held that seeking permissive remedies, such as appeals to
ABCMR or the DRB, do not toll the statute of limitations.
See Heisig v. United States, 719 F.2d 1153, 1155 (Fed. Cir.
1983); see also Hurick v. Lehman, 782 F.2d 984, 987 (Fed.
Cir. 1986).
a Failure to State a Claim upon Which Relief Can be
Granted
While the court’s dismissal for lack of jurisdiction
obviates the need to
decide whether it should dismiss the complaint under RCFC
12(b)(4) for failure to state a claim upon which relief can be
granted, the court reaches and decides the issue, in the
alternative, in the interest of judicial efficiency in the event,
on appeal, the United States Court of Appeals for the Federal
Circuit overrules the jurisdictional decision.
Dismissal under RCFC 12(b)(4) is appropriate “when
the facts asserted by the plaintiff do not entitle him to a legal
remedy.” Boyle v. United States, 200 F.#d 1369, 1372 (Fed.
Cir. 2000). The court “must accept all well-pled factual
allegations [in the complaint]as true and draw all reasonable
inference in [he non-movant’s] favor.” Id. In this case, the
relevant facts are not in dispute.
Plaintiff's claims do not, as they must, identify any
Appendix 7
statute creating a “substantive right enforceable against the
United States for money damages.” United States v. Testan,
424 US. 392, 398, 96 S. Ct. 948, 953 (1976)(“The Tucker
Act, of course, is itself only a jurisdictional statute; it does
not create any substantive right enforceable against the
United States for money damages.”) See also Dehne v.
United States, 970 F.2d 890, 893f (fed. Cir.
1992)(“Therefore, in order to state a claim under the Tucker
Act, (plaintiff) must find a substantive right in the
Constitution, as act of Congress, or an executive department
regulation on which to base his claim that ‘can fairly be
interposed as mandating compensation by the federal
Government for the damage sustained.” (Quoting United
States v. Mitchell, 463 U.S. 206, 216-17, 103 S. Ct. 2961,
2967-68 (1983)).
Plaintiffs complaint raises claims under (1) the
Military Whistleblower Protection act, 10 U.S.C. §1034, (2)
the Administrative Procedures Act, §702, (3) 10 U.S.C.
§1552, and (4) 10 U.S.C. §1553. None of these statutes
qualifies as money-mandating under Testan. See generally
Hernandez vy. United States, 38 Fed. Cl. 532 (1997)(no
private cause of action existed in the Military Whistleblower
Protection Act); see Dehne, 970 F.2d at 894 (“Thus, by its
terms, section 1552(c) does not mandate pay at all. Rather it
provides for appropriate discretionary payment by the
Secretary in certain circumstances.”); see Murphy v. United
States. 993 F.2d 871, 874 (Fed. Cir. 1993)([T]he Claims
Court has no authority to invoke the APA [in military pay
cases].”). 10 U.S.C. §1553, which establishes the procedures
for eview of a discharge or dismissal, creates no entitlement
to payment from the government. Because none of the
statutes identified by plaintiff mandates the payment of
money by the government, plaintiff fails to state a claim upon
Appendix 8
which relief can be granted.
Plaintiff's opposition to defendant’s motion to
dismiss requests leave
to amend the complaint to add a claim under the Military Pay
Act, 37 U.S.C. §§204 & 206, which ordinarily is deemed a
money mandating statute for wrongful discharge or
separation claims. 'See Holley v. United States, 124 F.3d
37.U.S.C. 204 (a) provides:
The following persons are entitled to the basic pay of
the pay grade to which assign ed or distributed, in
accordance with their years of service computed under
section 205 of this title-
(1) a member of a uniformed service is on active duty;
and
(2) a member of a uniformed service, or a member of
the National Guard who is not a Reserve of the Army
or the Air Force, who is participating in full-time
training with pay, or other full time duty provided by
law, including participation in exercises or the
performance of duty ....
37 U.S.C. 206(a) provides:
Under regulations prescribed by the Secretary
concerned, and to the extent provided for by
appropriations, a member of the National Guard or a
member of a reserve component of a uniformed
service who is not entitled to basic pay under section
204 of this title, is entitled to compensation, at the rate
of 1/30 of the basic pay authorized for a member of a
Appendix 9
1462, 1465 (Fed. Cir. 1997) (37 U.S.C. §204 applies to active
duty servicemen, while §206 expressly applies to the
Reserves and other inactive-duty members). See also Palmer
v. United States, 168 F.3d 1301, 1314 (Fed. Cir. 1999). Asa
reservist, plaintiff falls under §206, which authorizes pay
only of duties actually performed. See Dehne, 970 F.2d at
893 (37 U.S.C. §206 requires pay only “for the performance
of such other equivalent training, instruction, duty, or
appropriate duties as the Secretary may prescribe.”), 37
U.S.C. §206(a)(1) & (2)(1994)(emphasis added). While the
statute permits compensation for performance missed due to
physical disability, it does not apply when the serviceperson
fails to perform his duties, whether by election of the member
or by decision of the service. Palmer, 168 F.3d at 1314. See
also Dehne, 970 F.2d at 893. Therefore, plaintiffs
nonperformance due to the service’s decision to separate him
involuntarily does not entitle him to be paid for his services.
uniformed service of a corresponding grade entitled to
basic pay- -
(1) for each regular period of instruction, or period of
appropriate duty, at which the member is engaged for
at least two hours, including that performed on a
Sunday or holiday;
(2) for the performance of such other equivalent
training instruction, duty or appropriate duties, as the
Secretary may prescribe.
Appendix 10
Crit
Plaintiff's prayers for nonmonetary relief, such as
reinstatement to a position form which he was wrongfully
removed, are predicated on his entitlement to pay under a
money-mandating statute. Palmer, 168 F.3d at 1314 (citing
Holley, 124 F.3d at 1465). As plaintiff has identified no
applicable money-mandating statute, he is not entitled to such
ancillary remedies.
CONCLUSION
The court concludes that plaintiff's claim is barred by
the statute of limitations. Therefore, plaintiff s compliant is
dismissed, without prejudice, for lack of jurisdiction. The
Clerk of the Court shall enter judgment for defendant. No
costs.
DIANE GILBERT WEINSTEIN
Judge, U.S. Court of Federal Claims
Appendix 11
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CURTIS SHAFFER, JR., )
Plaintiff-Appellant, ‘
V. | ORDER
TOGO D. WEST, JR., Secretary of the ia
Defendant-Appellee.
Before: KENNEDY, CONTIE, and MOORE, Circuit
Judges.
Curtis Shaffer, Jr., proceeding pro se, appeals a
district court judgment dismissing his amended civil rights
complaint filed under 42 U.S. C. § 1981. This case has been
referred to a panel of the court pursuant to Rule 9(a), Rules of
the Sixth Circuit. Upon examination, this panel unanimously
agrees that oral argument is not needed. Fed R. App. P. 34
(a).
By way of background, in January, 1993, Shaffer was
a dual-status military technician in the United States Army
Reserve. He held the military grade of sergeant first class,
and was also employed in the civilian position of staff
operations and training specialist with the Reserves. On
January 15, 1993, Shaffer’s military commander issued a
letter of reprimand finding that Shaffer had fraudulently worn
the rank and insignia of a master sergeant and had drawn
excess pay in the amount of $1186. The letter recommended
that Shaffer be discharged from the Reserves. Following
administrative proceedings, Shaffer was indeed discharged.
Appendix 12
Naa De ea So Meta gta
Shaffer was terminated from his civilian employment because
that position was conditioned upon his maintaining
membership in the Reserves.
Thereafter, Shaffer filed a complaint against the
Secretary of the Army, alleging that the Army had violated
his Fifth Amendment due process rights by discharging him
from the Reserves without complying with Army regulations
and procedures. He also argued that he was improperly
separated from his civilian employment with the Department
of Defense. In an amended complaint, Shaffer noted that his
complaint should be construed as having been filed pursuant
to 42 U.S.C. §1981. In addition, Shaffer argued that the
defendant discriminated against him by giving him less
favorable assignments, denying him training, and not placing
a minority officer on his separation board to ensure a fair
separation hearing. Shaffer requested damages and equitable
relief, including reinstatement and back pay. The defendant
moved to dismiss Shaffer’s complaint for lack of subject
matter jurisdiction, and Shaffer filed a cross-motion for
summary judgment; each party filed numerous documents in
support of their respective motions. Upon review, the district
court dismissed Shaffer’s complaint without prejudice,
concluding that it lacked jurisdiction over Shaffer’s claims.
Shaffer has filed a timely appeal reasserting his claim that the
defendants improperly discharged him from the reserves.
Initially, we note that Shaffer has expressly withdrawn
his claim that his discharge violated due process, as well as
his claim concerning his termination from his civilian
employment. Thus, we shall consider these claims
abandoned and not reviewable on appeal. See Boyd v. Ford
Motor Co., 948 F.2d. 283 (6thCir, 1991). cert denied, 503
U.S. 939 (1992).
Appendix 13
Upon review, we affirm the district court’s judgment.
We construe the judgment as having granted summary
judgment to the defendant, because it appears that the district
court considered matters outside of the pleadings when it
rendered its judgment. See Fugarino v. Hartford Life &
Accident Ins. Co., 969 F.2d 178, 182 (6" Cir. 1992), cert
denied, 507 U.S. 966 (1993). Moreover, we conclude that the
district court properly granted summary judgment to the
defendant, see Hanover Ins. Co. v. American Eng’g Co., 33
F.3d 727, 730 (6" Cir. 1994).
The defendant was entitled to summary judgment on
Shaffer’s claim that the defendant improperly discharged him
from the Reserves. Even if we accept Shaffer’s allegations as
true, the defendant is not entitled to judgment as a matter of
law because Shaffer can prove no set of facts in support of his
claim that would entitle him to relief. See Meador v. Cabinet
for Human Resources, 902 F.2d 474 (6" Cir.), cert denied,
498 U.S. 867 (1990). Shaffer is barred from pursuing this
action in federal court as he is clearly seeking federal judicial
review of a military personnel decision resulting in his
discharge from the Reserves. See Chappell v. Wallace, 462
U.S. 296, 301-04 (1983). Shaffer may not invoke §1981 to
review specific decisions by his superior officers because the
relationship between enlisted military personnel and their
superior officers is at the heart of the necessarily unique
structure of the military establishment.
Watson v. Arkansas Nat'l Guard, 886 F.2d 1004, 1007-11 (8"
Cir. 1989). Shaffer’s claim is not justiciable because he does
not challenge the constitutionality of a military regulation or
statute, nor does he seek limited review of any final agency
action. See Wood v. United States, 968 F.2d 738, 739-40 (8"
Cir. 1992).
Accordingly, we hereby affirm the district court’s
Appendix 14
ee es ee
ee
judgment. Rule 9(b)(3), Rules of the Sixth Circuit.
ENTERED BY ORDER OF
THE COURT
Clerk
Appendix 15
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CURTIS SHAFFER )
)
Plaintiff )
. |
vs. )No. 96-2204 G/A
)
TOGO D. WEST, JR.) i
)
Defendant )
)
ORDER OF DISMISSAL
Plaintiff, Curtis Shaffer. brought this action against
Togo D, West, Jr. the Secretary of the Army . Plaintiff allege |
that the Department of the Army violated his Fifth
Amendment due process rights and its own regulations in :
discharging him from the United States Army Reserves and
terminating him from a civilian employment position with the
Department of Defense. He also alleges that the discharge
and subsequent termination were motivated by racial
discrimination. Plaintiff and defendant have filed cross-
motions for summary judgment.
The undisputed facts in this case show that on January
15, 1991, plaintiff was a dual-status military technician in the
Appendix 16
United States Army Reserves. Plaintiff held the military
grade of Sergeant First Class (E-7). He was assigned to the
302™ Military Intelligence Company of the 125" Army
Readiness Command in Mernphis, Tennessee. . He also was
employed in the civilian position of staff operations and
training specialist with the United States Army Reserves
124" Combat Support Hospital of the 81" Army Reserve
Command in Perrine, Florida. On January 15, plaintiff's
military commander issued a letter of reprimand finding that
he had fraudulently worn the rank and insignia of a master
sergeant and had drawn excess pay in the amount of
$1186.00. The letter recommended that plaintiff be
discharged from the Army Reserves. Plaintiff filed a rebuttal
an February 15. 1993, denying any improper conduct: and
requesting administrative review of the commander's
decision. Between May 3 and December 1, 1993, the Army
conducted administrative proceedings reviewing the
recommended action and concluded that plaintiff should be
discharged. On December 13, 1993. plaintiff was discharged
from the Reserves.
Plaintiff's civilian employment with the Army was
conditioned upon his maintaining membership in the
Reserves. On February 23, 1994, the plaintiff received notice
that his supervisor was proposing his termination because he
had failed to maintain that membership. On April 2, 1994,
plaintiff was terminated from employment with the
Department of the Army.
On November 19, 1994, plaintiff submitted an
application for correction of military records to the Army
Board for Correction of Military Records (ABCMR). 10
U.S.C. § 1552(b). Plaintiff's application is still pending
before the ABCMR.
Appendix 17
Defendant seeks dismissal of plaintiff's claim of racial
discrimination under 42 U.S.C. § 1981 as barred by sovereign
immunity and by the exclusive remedy available to federal
employees under Title IX. Defendant seeks dismissal o f
plaintiff's claims related to violation of Army regulations and
violation of Title VII on the grounds that plaintiff has failed
to exhaust applicable administrative remedies. Plaintiff has
essentially responded that exhaustion of those remedies is
futile and should not be required.
‘“ [E]nlisted military personnel may not maintain a suit
to recover damages from a superior officer for alleged
constitutional violations. Chappel v. Wallace, 462 U.S.
296, 305 (1983). Furthermore, a member of the miiitary may
not invoke Section 1981 to review specific decisions by his
superior offices._Watson v. Arkansas National Guard, 886
F.2d 1004. 1010-11 (8" Cir. 1989). Equally importantly,
plaintiff may not: maintain an action under section 1981
against the United States because the United States is
protected by sovereign immunity. United States v. T’amons,
672 F.2d 1373, 1380 (11th Cir. 1982).
Insofar as plaintiff contests his termination from his
civilian employment with the federal government, he has no
claim. A federal employee ' s exclusive remedy for illegal
discrimination is the particular federal statute governing the
particular invidious classification. 42 U.S.C. § 2000e-16 is
the exclusive remedy for discrimination on the basis of race
of sex. Brown v. General Services Administration,, 425 U.3.
920 (1976). The Age Discrimination in Employment Act, 29
U .S. C. § 633a is the exclusive remedy for federal employees
alleging age discrimination. Paterson v. Weinberger , 644
F.2d 521, 525 (6" Cir. 1982). The Rehabilitation
act. 29 U.S.C. § 791, 794a. is the exclusive remedy for
handicapped discrimination in federal employment. Johnston
Appendix 18
SRB EI PRES IRR IT Se hel
v. Horne, 875 F.2d 1415, 1420-21 (9" Cir. 1989); Boyd c.
United States Postal Service, 752 F.2d 410 , 413 (9th Cir,
1985). Cf. Hall v. United States Postal Service, 857 F.2d
1073 (6th Cir. 1988) (noting that the plaintiff did not dispute
district court’s dismissal of state law Claims on basis that
Rehabilitation Act: is the sole remedy for federal employees)
Smith v. United States Postal Service, 766 F.2d 205, 207 n.2
(6th Cir. 14B5) (same); Smith v. United States Postal
Service, 742 F,2d 257, 259-60 (6th Cir. 1984) (holding that
Act requires exhaustion regardless of whether plaintiff
invokes remedy under section 791 or section 794). Federal
preference eligible employees contesting the validity of a
termination must exhaust their remedies with the Merit
System Protection Board (MSPB). See, Williams v. Rice,
983 F.2d 177, 180 (10" Cr. 1993).
Exhaustion of administrative remedies is a
prerequisite before filing of an employment discrimination
case. See generally, Zipes v. Trans World Airlines, 455 U.S.
385, 393 (1982); Williams v. Rice, 983 F.2d at 180;
Parsons v. Yellow Freight Systems, Inc., 741 F.2d 873 (6th
Cir. 1984). For federal employees, exhaustion of
administrative remedies is a jurisdictional prerequisite.
Williams v. Rice, 983 P.2d at 180. Plaintiff admits that he
has not exhausted his remedies under either Title VII or the
MSPB procedures. Thus he cannot proceed with any claims
of racial discrimination in employment.
Furthermore, the presently pending ABCMR
procedure provides plaintiff an adequate remedy because that
board, on review of his claims may correct his records and
reinstate him to the Reserves. Plaintiff, however, contends
that he need not exhaust that procedures. He essentially
argues that he and his family have endured economic
hardsi::> while the ABCMR has had his case uncer review.
Appendix 19
Exhaustion of adn. nistrative remedies May
not be required when (1) available remedies
provide no "genuine opportunity for adequate
relief, (2) irreparable injury may occur
without immediate judicial relief; ( 3 )
administrative appeal would be futile and (4)
in certain instances a plaintiff has raised a
“substantial constitutiona! question. "
Guitard v. Secretary of the Navy, 967 F.2d 737, 741 (2™ Cir.
1992). Here, plaintiff cannot pass this threshold because he
cannot show either a lack of genuine opportunity for adequate
relief or irreparable injury.
In Sampson v. Murray, 415 U.S. 61, 94 S.C.
937, 39 L.Ed.2d 166 (1974), the Supreme
Court held that the injuries that generally
attend a discharge from employment -1osc of
reputation, loss of income and difficulty in
finding other employment--do not constitute
the irreparable harm necessary to obtain a
preliminary injunction. 1d. at 89-92. 94 S.C. at
952-54. This reasoning applies with as much
or greater force in the case of a military
discharge. See Guerrera v. Scruggs, 94.2 F.2d
270 , 274-75 (4th Cir. 1991); Hartikka v.
United States, 754 F. 2d 1516, 1518 (9th Cir.
1985); Chilcott v. Orr. 747 F.2d 29, 34 (1*
Cir. 1984). Nor has Guitard shown either that
administrative review would be futile for
reasons other than the lack of merits of his
case or that a substantial constitutional issue is
involved. His claims thus do not fall within
any of the recognized exce; tions to the
exhaustion doctrine.
Appendix 20
Guitard,, 967 F.2d at 742. Similarly, “[i]n this case as in
Sanders, the consequence of delay for Guerrera, —
postponement of his ability to obtain damages — is
outweighed by the considerations of efficiency and agency
expertise in «quiring exhaustion.” Guerrera v. Scruggs, 942
F.2d 270, 277 (4th Cir. 1991) [requiring exhaustion of
ABCMR procedures].’ Plaintiff's position is
indistinguishable Guitard and Guerrera, and he has not
demonstrated the futility of administrative exhaustion.-
Accordingly, as plaintiff has exhausted neither the
procedure for correcting his military records, nor his civilian
employment administrative remedies with the Department of
the Amny, he is not entitled to relief, and his case is
dismissed, without prejudice. Should p'aintiff file a notice of
appeal, it is hereby certified, pursuant to 28 U.S.C. §
1915(a)(3), that any appea! in
’ Plaintiff relies on Hickey v. Commandant of the
Fourth Naval District, 461 F.Supp. 1085, 1094 (E. D. Penn
1978) to support his claim that he will suffer irreparable
hardship.
Hickey, however, was a habeas corpus challenge to the
Navy's decision to terminate the petitioner’s enrollment in a
Naval ROTC education program and activate him for full
active duty in the Navy. The irreparable injury or hardship
thus consisted of the petitioners completely serving his
enlistment period. As the period would have expired before
exhaustion of administrative remedies, the court considered
his claim on the merits and denied them. This case is
therefore distinguishable and does not support Shaffer's
contention that economic hardship requires the court to
excuse exhaustion of his administrative remedies.
Appendix 21
this matter by plaintiff is taken in good faith and plaintiff may
proceed on appeal in forma pauperis.
IT IS SO ORDERED this 7" day of March 1997.
JULIA SMITH GIBBONS, Chief Judge
UNITED STATES DISTRICT COURT
Appendix 22
i
TEXT OF PERTINENT CONSTITUTIONAL
PROVISIONS, TREATIES, STATUTES, ORDINANCES
AND REGULATIONS
10 U.S.C. § 938. Art. 138. Complaints of wrongs.
Any member of the armed forces who believes
himself wronged by his commanding officer, and who, upon
due application to that commanding officer, is refused
redress, may complain to any superior commissioned officer,
who shall forward the complaint to the officer exercising
general court-martial jurisdiction over the officer against
whom it is made. The officer exercising general
court-martial jurisdiction shall examine into the complaint
and take proper measures for redressing the wrong
complained of; and he shall, as soon as possible, send to the
Secretary concerned a true statement of that complaint, with
the proceedings had thereon.
10 U.S.C. § 1552. Correction of military records: claims
incident thereto.
(a)(1) The Secretary of a military department may
correct any military record of the Secretary's department
when the Secretary considers it necessary to correct an error
or remove an injustice. Except as provided in paragraph (2),
such corrections shall be made by the Secretary acting
through boards of civilians of the executive part of that
military department. The Secretary of Transportation may in
the same manner correct any military record of the Coast
Guard.
(2) The Secretary concerned is not required to act
through 2 board in the case of the correction of a military
record announcing a decision that a person is not eligible to
enlist (or reenlist) or is not accepted for enlistment (or
Appendix 23
reenlistment) or announcing the promotion and appointment
of an enlisted member to an initial or higher grade or the
decision not to promote an enlisted member to a higher grade.
Such a correction may be made only if the correction is
favorable to the person concerned.
(3) Corrections under this section shall be made under
procedures established by the Secretary concerned. In the
case of the Secretary of a military department, those
procedures must be approved by the Secretary of Defense.
(4) Except when procured by fraud, a correction under
this section is final and conclusive on all officers of the
United States.
(b) No correction may be made under subsection
(a)(1) unless the claimant or his heir or legal representative
files a request for the correction within three years after he
discovers the error or injustice. However, a board established
under subsection (a)(1) may excuse a failure to file within
three years after discovery if it finds it to be in the interest of
justice.
(c) The Secretary concerned may pay, from applicable
current appropriations, a claim for the loss of pay,
allowances, compensation, emoluments, or other pecuniary
benefits, or for the repayment of a fine or forfeiture, if, as a
result of correcting a record under this section, the amount is
found to be due the claimant on account of his or another's
service in the Army, Navy, Air Force, Marine Corps, or Coast
Guard, as the case may be, or on account of his or another's
service as a civilian employee. If the claimant is dead, the
money shall be paid, upon demand, to his legal
representative. However, if no demand for payment is made
by a legal representative, the money shall be paid--
(1) to the surviving spouse, heir, or beneficiaries, in
the order prescribed by the law applicable to that kind of
payment;
(2) if there is no such law covering order of payment,
Appendix 24
a
pea
in the order set forth in section 2771 of this title; or
(3) as otherwise prescribed by the law applicable to
that kind of payment.
A claimant's acceptance of a settlement under this section
fully satisfies the claim concerned. This section does not
authorize the payment of any claim compensated by private
law before October 25, 1951.
(d) Applicable current appropriations are available to
continue the pay, allowances, compensation, emoluments,
and other pecuniary benefits of any person who was paid
under subsection (c), and who, because of the correction of
his military record, is entitled to those benefits, but for not
longer than one year after the date when his record is
corrected under this section if he is not reenlisted in, or
appointed or reappointed to, the grade to which those
payments relate. Without regard to qualifications for
reenlistment, or appointment or reappointment, the Secretary
concerned may reenlist a person in, or appoint or reappoint
him to, the grade to which payments under this section relate.
(e) No payment may be made under this section for a
benefit to which the claimant might later become entitled
under the laws and regulations administered by the Secretary
of Veterans Affairs.
(f) With respect to records of courts-martial and
related administrative records pertaining to court-martial
cases tried or reviewed under chapter 47 of this title (or under
the Uniform Code of Military Justice (Public Law 506 of the
81st Congress)), action under subsection (a) may extend only
to--
(1) correction of a record to reflect actions taken by
reviewing authorities under chapter 47 of this title (or under
the Uniform Code of Military Justice (Public Law 506 of the
81st Congress)); or
(2) action on the sentence of a court-martial for
purposes of clemency.
Appendix 25
(g) In this section, the term "military record" means a
document or other record that pertains to (1) an individual
member or former member of the armed forces, or (2) at the
discretion of the Secretary of the military department
concerned, any other military matter affecting a member or
former member of the armed forces, an employee or former
employee of that military department, or a dependent or
current or former spouse of any such person. Such term does
not include records pertaining to civilian employment matters
(such as matters covered by title 5 and chapters 81, 83, 87,
108, 373, 605, 607, 643, and 873 of this title).
10 U.S.C. § 1557. Timeliness standards for disposition of
applications before Corrections Boards.
(a) Ten-month clearance percentage.--Of the
applications received by a Corrections Board during a period
specified in the following table, the percentage on which final
action by the Corrections Board must be completed within 10
months of receipt (other than for those applications
considered suitable for administrative correction) is as
follows:
For applications received during-- The percentage on which
final Correction Board
action must be
completed within 10
months of receipt is—
the period of fiscal years 2001 and 2002 .......... eee 50
the period of fiscal years 2003 and 2004... eee 60
the period of fiscal years 2005, 2006, and 2007 ................... 70
the period of fiscal years 2008, 2009, and 2010 ..........0........ 80
the period of any fiscal year after fiscal year 2010 ............... 90
(b) Clearance deadline for all applications.--Effective
October 1, 2002, final action by a Corrections Board on all
Appendix 26
;
applications received by the Corrections Board (other than
those applications considered suitable for administrative
correction) shall be completed within 18 months of receipt.
(c) Waiver authority.--The Secretary of the military
department concerned may exclude an individual application
from the timeliness standards prescribed in subsections (a)
and (b) if the Secretary determines that the application
warrants a longer period of consideration. The authority of
the Secretary of a military department under this subsection
may not be delegated.
(d) Failure to meet timeliness standards not to affect
any individual application.--Failure of a Corrections Board to
meet the applicable timeliness standard for any period of time
under subsection (a) or (b) does not confer any presumption
or advantage with respect to consideration by the board of
any application.
(e) Reports on failure to meet timeliness
standards.--The Secretary of the military department
concerned shall submit to the Committee on Armed Services
of the Senate and the Committee on Armed Services of the
House of Representatives a report not later than June |
following any fiscal year during which the Corrections Board
of that Secretary's military department was unable to meet the
applicable timeliness standard for that fiscal year under
subsections (a) and (b). The report shall specify the reasons
why the standard could not be met and the corrective actions
initiated to ensure compliance in the future. The report shall
also specify the number of waivers granted under subsection
(c) during that fiscal year.
(f) Corrections board defined.--In this section, the
term "Corrections Board" means--
(1) with respect to the Department of the Army, the
Army Board for Correction of Military Records;
(2) with respect to the Department of the Navy, the
Board for Correction of Naval Records; and
Appendix 27
(3) with respect to the Department of the Air Force,
the Air Force Board for Correction of Military Records.
10 U.S.C. view of acti l
correction ili rds i ; judicial
review.
(a) Correction of military records.--The Secretary of a
military department may correct a person's military records in
accordance with a recommendation made by a special board.
Any such correction may be made effective as of the effective
date of the action taken on a report of a previous selection
board that resulted in the action corrected in the person's
military records.
(b) Definitions.--In this section:
(1) Special board.(A) The term "special board" means
a board that the Secretary of a military department convenes
under any authority to consider whether to recommend a
person for appointment, enlistment, reenlistment, assignment,
promotion, retention, separation, retirement, or transfer to
inactive status in a reserve component instead of referring the
records of that person for consideration by a previously
convened selection board which considered or should have
considered that person.
(B) Such term includes a board for the correction of
military records convened under section 1552 of this tide, if
designated as a special board by the Secretary concerned.
(C) Such term does not include a promotion special
selection board convened under section 628 or 14502 of this
title.
(2) Selection board.--(A) The term "selection board"
means a selection board convened under section 573(c), 580,
580a, 581, 611(b), 637, 638, 638a, 14101(b), 14701, 14704,
or 14705 of this title, and any other board convened by the
Secretary of a military department under any authority to
Appendix 28
recommend persons for appointment, enlistment,
reenlistment, assignment, promotion, or retention in the
armed forces or for separation, retirement, or transfer to
inactive status in a reserve component for the purpose of
reducing the number of persons serving in the armed forces.
(B) Such term does not include any of the following:
(i) A promotion board convened under section 573(a),
611(a), or 14101(a) of this title.
(ii) A special board.
(iii) A special selection board convened under section
628 of this title.
(iv) A board for the correction of military records
convened under section 1552 of this title.
(3) Involuntarily board-separated.--The term
"involuntarily board-separated" means separated or retired
from an armed force, or transferred to the Retired Reserve or
to inactive status in a reserve component, as a result of a
recommendation of a selection board.
(c) Relief associated with correction of certain
actions.--(1) The Secretary of the military department
concerned shall ensure that an involuntarily board-separated
person receives relief under paragraph (2) or under paragraph
(3) if the person, as a result of a correction of the person's
military records under subsection (a), becomes entitled to
retention on or restoration to active duty or to active status in
a reserve component.
(2)(A) A person referred to in paragraph (1) shall,
with that person's consent, be restored to the same status,
rights, and entitlements (less appropriate offsets against back
pay and allowances) in that person's armed force as the
person would have had if the person had not been selected to
be involuntarily board-separated as a result of an action the
record of which is corrected under subsection (a). An action
under this subparagraph is subject to subparagraph (B).
(B) Nothing in subparagraph (A) may be construed to
Appendix 29
permit a person to be on active duty or in an active status in a
reserve component after the date on which the person would
have been separated, retired, or transferred to the Retired
Reserve or to inactive status in a reserve component if the
person had not been selected to be involuntarily
board-separated in an action of a selection board the record of
which is corrected under subsection (a).
(3) If an involuntarily board-separated person referred
to in paragraph (1) does not consent to a restoration of status,
rights, and entitlements under paragraph (2), the Secretary
concerned shall pay that person back pay and allowances
(less appropriate offsets), and shall provide that person
service credit, for the period--
(A) beginning on the date of the person's separation,
retirement, or transfer to the Retired Reserve or to inactive
status in a reserve component, as the case may be; and
(B) ending on the earlier of--
(i) the date on which the person would have been so
restored under paragraph (2), as determined by the Secretary
concerned; or
(ii) the date on which the person would otherwise
have been separated, retired, or transferred to the Retired
Reserve or to inactive status in a reserve component, as the
case may be.
(d) Finality of unfavorable action.--If a special board
makes a recommendation not to correct the military records
of a person regarding action taken in the case of that person
on the basis of a previous report of a selection board, the
action previously taken on that report shall be considered as
final as of the date of the action taken on that report.
(e) Regulations.--(1) The Secretary of each military
department shall prescribe regulations to carry out this
section. Regulations under this subsection may not apply to
subsection (f), other than to paragraph (4)(C) of that
subsection.
Appendix 30
(2) The Secretary may prescribe in the regulations
under paragraph (1) the circumstances under which
consideration by a special board may be provided for under
this section, including the following:
(A) The circumstances under which consideration of a
person's case by a special board is contingent upon
application by or for that person.
(B) Any time limits applicable to the filing of an
application for such consideration.
(3) Regulations prescribed by the Secretary of a
military department under this subsection may not take effect
until approved by the Secretary of Defense.
(f) Judicial review.--(1) A person seeking to challenge
an action or recommendation of a selection board, or an
action taken by the Secretary of the military department
concerned on the report of a selection board, is not entitled to
relief in any judicial proceeding unless the action or
recommendation has first been considered by a special board
under this section or the Secretary concerned has denied the
convening of such a board for such consideration.
(2)(A) A court of the United States may review a
determination by the Secretary of a military department not to
convene a special board in the case of any person. In any
such case, the court may set aside the Secretary's
determination only if the court finds the determination to be--
(i) arbitrary or capricious;
(ii) not based on substantial evidence;
(iii) a result of material error of fact or material
administrative error; or
(iv) otherwise contrary to law.
(B) If a court sets aside a determination by the
Secretary of a military department not to convene a special
board, it shall remand the case to the Secretary concerned,
who shall provide for consideration by a special board.
(3) A court of the United States may review a
Appendix 31
recommendation of a special board or an action of the
Secretary of the military department concerned on the report
of a special board. In any such case, a court may set aside the
action only if the court finds that the recommendation or
action was--
(A) arbitrary or capricious;
(B) not based on substantial evidence;
(C) a result of material error of fact or material
administrative error; or
(D) otherwise contrary to law.
(4)(A) If, six months after receiving a complete
application for consideration by a special board in any case,
the Secretary concerned has not convened a special board and
has not denied consideration by a special board in that case,
the Secretary shall be deemed for the purposes of this
subsection to have denied consideration of the case by a
special board.
(B) If, six months after the convening of a special
board in any case, the Secretary concerned has not taken final
action on the report of the special board, the Secretary shall
be deemed for the purposes of this subsection to have denied
relief in such case.
(C) Under regulations prescribed under subsection (e),
the Secretary of a military department may waive the
applicability of subparagraph (A) or (B) in a case if the
Secretary determines that a longer period for consideration of
the case is warranted. Such a waiver may be for an additional
period of not more than six months. The Secretary concerned
may not delegate authority to make a determination under this
subparagraph.
(g) Existing jurisdiction.--Nothing in this section
limits--
(1) the jurisdiction of any court of the United States
under any provision of law to determine the validity of any
law, regulation, or policy relating to selection boards; or
Appendix 32
Vy RE AE EEG
(2) the authority of the Secretary of a military
department to correct a military record under section 1552 of
this title.
10 U.S.C. § 10147. Ready Reserve training requirements.
(a) Except as specifically provided in regulations to
be prescribed by the Secretary of Defense, or by the Secretary
of Transportation with respect to the Coast Guard when it is
not operating as a service in the Navy, each person who is
enlisted, inducted, or appointed in an armed force, and who
becomes a member of the Ready Reserve under any provision
of law except section 513 or 10145(b) of this title, shall be
required, while in the Ready Reserve, to--
(1) participate in at least 48 scheduled drills or
training periods during each year and serve on active duty for
training of not less than 14 days (exclusive of traveltime)
during each year; or
(2) serve on active duty for training not more than 30
days during each year.
(b) A member who has served on active duty for one
year or longer may not be required to perform a period of
active duty for training if the first day of that period falls
during the last 120 days of the member's required
membership in the Ready Reserve.
28 U.S.C. § 1254. Courts of appeals; certiorari; certified
questions.
Cases in the courts of appeals may be reviewed by the
Supreme Court by the following methods:
(1) By writ of certiorari granted upon the petition of any party
to any civil or criminal case, before or after rendition of
judgment or decree;
(2) By certification at any time by a court of appeals of any
question of law in any civil or criminal case as to which
Appendix 33
instructions are desired, and upon such certification the
Supreme Court may give binding instructions or require the
entire record to be sent up for decision of the entire matter in
controversy.
37 U.S.C. § 101 Definitions.
(3) The term "uniformed services" means the Army, Navy,
Air Force, Marine Corps, Coast Guard, National Oceanic and
Atmospheric Administration, and Public Health Service.
37 U.S.C. § 101 Definitions.
(18) The term "active duty" means full-time duty in
the active service of a uniformed service, and includes
full-time training duty, annual training duty, full-time
National Guard duty, and attendance, while in the active
service, at a school designated as a service school by law or
by the Secretary concerned.
37 U.S.C. § 204 Entitlement.
(a) The following persons are entitled to the basic pay of the
pay grade to which assigned or distributed, in accordance
with their years of service computed under section 205 of this
title--
(1) a member of a uniformed service who is on active duty;
and
(2) a member of a uniformed service, or a member of the
National Guard who is not a Reserve of the Army or the Air
Force, who is participating in full-time training, training duty
with pay, or other full-time duty, provided by law, including
participation in exercises or the performance of duty under
section 10302, 10305, 10502, or 12402 of Title 10, or section
503, 504, 505, or 506 of Title 32.
Appendix 34
— ee
37 U.S.C. § 206 Reserves; members of National Guard:
inactive-duty training.
(a) Under regulations prescribed by the Secretary concerned,
and to the extent provided for by appropriations, a member of
the National Guard or a member of a reserve component of a
uniformed service who is not entitled to basic pay under
section 204 of this title, is entitled to compensation, at the
rate of 1/30 of the basic pay authorized for a member of a
uniformed service of a corresponding grade entitled to basic
pay--
(1) for each regular period of instruction, or period of
appropriate duty, at which the member is engaged for at least
two hours, including that performed on a Sunday or holiday;
(2) for the performance of such other equivalent training,
instruction, duty, or appropriate duties, as the Secretary may
prescribe; or
(3) for a regular period of instruction that the member is
scheduled to perform
but is unable to perform because of physical disability
resulting from an injury, illness, or disease incurred or
aggravated--
(A) in line of duty while performing--
(i) active duty; or
(i1) inactive-duty training;
(B) while traveling directly to or from that duty or training
(unless such injury, illness, disease, or aggravation of an
injury, illness, or disease is the result of the gross negligence
or misconduct of the member); or
(C) in line of duty while remaining overnight immediately
before the commencement of inactive-duty training, or while
remaining overnight, between successive periods of
inactive-duty training, at or in the vicinity of the site of the
inactive-duty training.
32 C.F.R. § 723.3 Application for correction.
Appendix 35
(b) Time limit for filing application. Applications for
correction of a record must be filed within 3 years after
discovery of the alleged error or injustice. Failure to file
within the time prescribed may be excused by the Board if it
finds it would be in the interest of justice to do so. If the
application is filed more than 3 years after discovery of the
error or injustice, the application must set forth the reason
why the Board should find it in the interest of justice to
excuse the failure to file the application within the time
prescribed.
Appendix 36
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