Stewart v. United States ( 2017 )

OR GINA
Jfn tbe Wniteb ~tates Qtourt of jfeberal Qtlaims
No. 17-200
(Filed: July 20, 2017) FILED
JUL 2 0 2017
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MARVINL. STEWART, ) U.S. COURT OF
FEDERAL CLAIMS
)
Plaintiff, )
)
v. )
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THE UNITED STATES, )
)
Defendant. )
````````~)
Marvin L. Stewart, prose, Long Beach, CA
Jessica Lee Cole, U.S. Department of Justice - Civil Division, Washington, DC,
for defendant.
OPINION
FUTEY, Senior Judge
Plaintiff, Marvin L. Stewart, proceeding prose, is a former service member in the
United States Coast Guard. Plaintiff alleges that the Government failed to provide him
with the requisite medical examination upon his discharge and subsequently created
fraudulent medical documents. Plaintiff filed the complaint on February 9, 2017, seeking
back pay and allowance, and ancillary expenses as a result of the alleged wrongful
discharge. Also, plaintiff seeks disability retirement and demands back pay and all
additional expenses that have been delayed due to administrative error. Before the Court
7017 1450 DODO 1346 3844
is defendant's motion to dismiss, filed on June 9, 2017, pursuant to Rule of the Court of
Federal Claims ("RCFC") 12(b)(l). Plaintiff failed to submit to the Court his response to
the motion to dismiss.
I. Background
a. Factual Background
Plaintiff enlisted in the United States Coast Guard and was serving upon the
USCGC Glacier on July 21, 1971 when there was an attempted firebombing on board.
Plaintiff was charged with the attempted firebombing on September 23, 1971 and was
kept in custody until December 6, 1971, when a general court-martial found him not
guilty. Immediately after the proceeding, he received a general discharge for reason of
unsuitability. Additionally, from September 30, 1971 to the date of his discharge, plaintiff
was on the Not Fit For Duty status and received medical treatment for a lower back injury
incurred while he was in the line of duty.
The parties dispute whether Mr. Stewart received a medical examination for
separation prior to his discharge. A document entitled "Report of Medical Examination",
which has a physician's and a dentist's signatures, shows that on September 22, 1971,
and December 6, 1971, plaintiff received medical examinations and was found qualified
for discharge. Def.'s Mot. 2-3. Another form, "Termination of Health Record'', dated
December 6, 1971 and signed by plaintiff, stated that plaintiff agreed with the findings of
a physical examination given to him on that date and that he did not wish to make a
rebuttal statement. Id.
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Plaintiff, on the other hand, claims that the "Report of Medical Examination" was
falsified since he was still on the journey from the Glacier to the base where he was held
in custody on September 22, 1971. Comp!. 20. Plaintiff also points to discrepancies,
omissions, and unclarities in the medical records and alleges that the signature is forged.
Comp!. 21-24. With regard to the "Termination of Health Record," plaintiff claims that
he signed it without being physically examined, in the absence oflegal counsel, and
under duress from the court-martial decision. Comp!. 10. In summary, plaintiff asserts
that he never received the medical examination for separation from the Coast Guard
during the time he was in custody and until the present day.
b. Procedural History
As a result of his discharge, plaintiff has brought claims several times before the
Board for Correction of Military Record ("BCMR" or "the Board"), the Court of Federal
Claims, and several United States District Courts.
In 1976, plaintiff petitioned for correction of his military record before the BCMR.
The Board issued a final decision in 1979 and ordered, among other things, to upgrade
plaintiffs discharge to honorable by reason of expiration of his enlistment, and update
the date of discharge to September 21, 1973. Comp!. 6; Def.' s Mot. 3-4. The Board also
ordered the Coast Guard to pay plaintiff all payment and allowance owed to him as a
result of these corrections. Def.'s Mot. 4.
On August 23, 1995, plaintiff filed a second claim before the BCMR, seeking
medical and other ancillary expenses between the previous and the updated date of
discharge. Comp!. 11; Def.'s Mot. 4. In addition, plaintiff sought permanent disability
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retirement for the lower back injury he sustained during military service and for post-
traumatic stress disorder alleged to have resulted from the Coast Guard's actions. He also
sought compensation for "malicious damages". Comp!. 11; Def.'s Mot. 4. During the
proceeding before the Board, plaintiff submitted supplemental statements and evidence to
attack the authenticity of the medical records. Comp!. 11-12.
In 1996, the Board refused to reconsider its 1979 decision and denied the new
claims for relief, addressing the merits of each claim except the claim for damages, which
it did not reach because of its limited jurisdiction. Comp!. 13; Def.'s Mot. 4-5.
Plaintiff subsequently requested reconsideration of the BCMR decision, providing
the Board with evidence, including abstract of service, travel order, missing dental health
record and charts of services rendered, as proof that the medical records were fraudulent.
Comp!. 13. On December 6, 1996, the request was denied.
In 1997, plaintiff filed a complaint in the United States District Court for the
Central District Court of California - Western Division and later transferred the case to
the Court of Federal Claims. In the complaint, plaintiff alleges that the Coast Guard
wrongfully discharged him without conducting a physical examination and falsified
medical documents. Def.'s Mot. 5. Plaintiff also alleged that, as a result of these false
documents, he could not obtain veteran's benefits. Id. He argued that the 1979 and 1996
BCMR decisions were arbitrary and capricious, and sought an order reinstating him to the
Coast Guard or an award of total permanent disability retirement. Def.'s Mot. 5-6.
On June 16, 1998, the Court of Federal Claims dismissed the complaint for lack of
jurisdiction, holding that his claim was barred by the statute of!imitations, 28 U.S.C. §
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2501 (1994). See Stewart v. United States, No. 98-424C (Fed. Cl. June 16, 1998)
("Stewart I"). Specifically, the court determined that "plaintiffs cause of action accrued
in 1979 when the Correction Board amended plaintiffs military record." Id.; DA 112-13.
The court noted that "plaintiffs motion for reconsideration did not toll the statute of
limitations" and "cannot form the basis for a new cause of action." Id.
The Court of Appeal for the Federal Circuit affirmed the decision on January 7,
1999. Stewart v. United States, No. 98-5135, 1999 U.S. App. LEXIS 735, at *6 (Fed. Cir.
Jan. 7, 1999) ("Stewart IF'). The Federal Circuit noted that a claim for unlawful discharge
from the military service accrues on the date of discharge and thus, Stewart's cause of
action accrued in 1971. Id. at *5. The Federal Circuit did not determine whether Mr.
Stewart's 1995 claim for disability was also time-barred because the issue was not before
the court. Id. at *6.
On May 7, 1999, plaintiff filed another complaint in the Court of Federal Claims,
alleging wrongful discharge and falsifying medical documents and seeking review of the
BCMR 1996 decision. See Stewart v. United States, No. 99-281C (May 7, 1999) (order)
("Stewart III"). The court noted that the complaint was "virtually identical" with the
complaint in Stewart Jwhich was dismissed on grounds of untimeliness. Id. Thus, the
court held that the action was barred by the operation of res judicata and because it was
untimely, and dismissed the complaint. Id.
On December 9, 1999, the Federal Circuit affirmed the court's dismissal on the
basis of res judicata and did not proceed to address the statute of limitations issue.
Stewartv. United States, No. 99-5101, 1999 U.S. App. LEXIS 32137, at *7-8 (Fed. Cir.
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Dec. 9, 1999) ("Stewart IV"). Specifically, with regard to the argument that the Court of
Federal Claims never reviewed the portion of the Board's 1996 decision that rejected
plaintiffs new disability claim, the Federal Circuit held that review of any portion of the
BCMR's decision was barred by resjudicata. Id. at *6.
Subsequently, plaintiff filed several complaints in different United States District
Courts. The complaints were either dismissed on the ground of res judicata and
untimeliness or, to the extent that new claims were alleged, dismissed on the merits.
Def.'s Mot. 9-10.
II. Discussion
a. Standard of Review
In deciding a motion to dismiss, the court is "obligated to assume all factual
allegations to be true and to draw all reasonable inferences in plaintiffs favor." Henke v.
United States, 60 F.3d 795, 797 (Fed. Cir. 1995). Plaintiff, as the non-moving party,
however, bears the burden of establishing jurisdiction by a preponderance of the
evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir.
1988).
A pro se complaint is to be liberally construed, and plaintiffs' filings "must be
held to 'less stringent standards than formal pleadings drafted by lawyers[.]"' Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21
(1972). Nevertheless, a litigant's prose status does not relieve him of these jurisdictional
requirements. Kelley v. Sec'y, United States Dep't ofLabor, 812 F.2d 1378, 1380 (Fed.
Cir. 1987) ("[L]eniency with respect to mere formalities should be extended to a prose
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party ... [however] a court may not similarly take a liberal view of [the] jurisdictional
requirement and set a different rule for pro se litigants only.")
b. Issue Preclusion
Defendant argues that the issue of whether plaintiff's wrongful discharge claim is
time-barred has already been decided in Stewart I. Defendant asserts that all four
elements of issue preclusion are met and plaintiff is collaterally estopped from alleging
that he was wrongfully discharged. Def.' s Mot. 13.
Issue preclusion is generally appropriate if: (1) an issue is identical to one decided
in the first action; (2) the issue was actually litigated in the first action; (3) the resolution
of the issue was essential to a final judgment in the first action; and (4) the party
defending against issue preclusion had a full and fair opportunity to litigate the issue in
the first action. DaCosta v. United States, 393 F. App'x 712, 714 (Fed. Cir. 2010). The
general rule is that a jurisdictional issue cannot be revisited unless new, previously
unavailable facts can cure the original jurisdictional defects. Id., at 715.
The issue presented to the Court is identical to the issue presented and decided in
the previous claims brought by plaintiff in this Court. In Stewart L the court was required
to, and did, decide whether the six-year statute oflimitations barred plaintiffs claim for
wrongful discharge. As a result, the court dismissed the case for lack of jurisdiction. The
decision was upheld by the Federal Circuit in Stewart II. In Stewart IIL the court, facing a
"virtually identical" complaint, dismissed the case on the ground of res judicata and
untimeliness. The Federal Circuit, in affirming the decision in Stewart IV, held that
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plaintiffs request for review of his disability claim was also barred by resjudicata since
review of the entire 1996 BCMR decision was before the court and cannot be relitigated.
1999 U.S. App. LEXIS at *7. Therefore, the issue of whether the court has subject matter
jurisdiction over plaintiffs wrongful discharge and disability retirement claim was
actually litigated and decided.
Plaintiff also confusingly claims for back pay and all ancillary expenses that has
been delayed due to administrative error. Comp!. 31. The Court views this request as a
request for judicial review of the previously denied claims. To this extent, the issue is
exactly the same as what was decided in Stewart I, II, III and IV
The determination oflack of jurisdiction over plaintiffs claims for wrongful
discharge, disability retirement and judicial review led the court to dismiss plaintiffs
cases. Plaintiff appealed to the Federal Circuit after each of the Court of Federal Claims
decisions. The Federal Circuit reviewed and affirmed the decisions. There is no evidence
suggesting that plaintiff was not given a full and fair opportunity to litigate the issue in
the four pervious proceedings before this Court and the Federal Circuit.
Finally, the present complaint does not allege new facts or evidence that were not
in the previous complaints and thus, could not constitute a new cause of action. Plaintiff
fails to allege any facts after the dismissal of Stewart I and III to cure the jurisdictional
defects. See DaCosta v. United States, No. 09-558 T, 2010 U.S. Claims LEXIS 11, at* 16
(Fed. Cl. Feb. 16, 2010) ("Generally, a court's prior dismissal of an action for lack of
subject matter jurisdiction forecloses the re-litigation of the same jurisdictional issue in a
subsequent action unless the 'curable defect' exception applies."); Citizen Elecs. Co. v.
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OSRAMGmbH, No. 2006-1211, 225 F. App'x 890, 893 (Fed. Cir. 2007) ("[P]laintiff
cannot relitigate a jurisdictional dismissal by relying upon those facts that existed at the
time of the first dismissal.").
For the foregoing reasons, the action is barred by the issue preclusion doctrine.
c. Statute of Limitations
Alternatively, the Government moves to dismiss the case on the grounds that
plaintiffs action is bared by the statute oflimitations. A claim brought pursuant to the
Tucker Act must be instituted within six years of the date upon which the cause of action
accrues. 28 U.S.C. § 2501 (1994). The six-year time bar requirement should be strictly
construed. Martinez v. United States, 48 Fed. Cl. 851, 857 (2001). "The start date to
begin a statute of limitations calculation for a claim against the United States is 'when all
events have occurred to fix the Government's alleged liability, entitling the claimant to
demand payment."' Lockwood v. United States, 90 Fed. Cl. 210, 215 (2008) (citing
Martinez v. United States, 333 F .3d 1295, 1303 (Fed. Cir. 2003)).
A claim based on an alleged unlawful discharge from the military service accrues
on the date of discharge. Hurick v. Lehman, 782 F.2d 984, 986 (Fed. Cir. 1986) (internal
quotations omitted). Wrongful discharge cases are brought pursuant to the money-
mandating Military Pay Act, 37 U.S.C. § 204, under which resort to a correction board is
not mandatory, but permissive. Lockwood, 90 Fed. Cl. at 216. Therefore, the accrual date
of the statute of limitations in wrongful discharge cases is the date of the discharge. See
id.; Chambers v. United States, 417 F .3d 1218, 1224 (Fed. Cir.). "Thus, Stewart's
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challenge to his discharge is batTed because it accrued when Stewart was discharged in
1971, more than six years before he filed his lawsuit." Stewart JI, 1999 U.S. App. LEXIS
735, at *5.
With regard to disability retirement claims, the Court of Federal Claims has no
jurisdiction over disability retirement claims until a military board evaluates a service
member's entitlement to such retirement in the first instance. Chambers, 417 F.3d at
1225. Thus, disability retirement claims generally do not start to accrue until the
appropriate military board denies the claim in a final decision, or refuses to hear the
claim. Id. at 1224. The BCMR denied plaintiffs request for disability retirement in 1996,
more than six years prior to the filing of the instant case. DA 36-37. Accordingly,
plaintiffs claim for disability retirement is barred by the statute of limitations.
III. Conclusion
For the above-stated reasons, the Court lacks jurisdiction over this matter.
Defendant's motion to dismiss is GRANTED. Plaintiff's complaint is hereby dismissed.
The Clerk is directed to enter judgment accordingly. No costs.
IT IS SO ORDERED.
i!:f±tj#;r
Senior Judge
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