Durr v. United States ( 2020 )

In the United States Court of Federal Claims
No. 20-1121C
(Filed: December 7, 2020)
(NOT TO BE PUBLISHED)
)
STEPHEN DURR, )
)
Plaintiff, )
)
v. )
)
UNITED STATES, )
)
Defendant. )
)
)
Stephen Durr, pro se, Chicago, Illinois.
Kelly A. Krystyniak, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With her on the briefs
were Jeffrey Bossert Clark, Acting Assistant Attorney General, Robert E. Kirschman, Jr.,
Director, Douglas K. Mickle, Assistant Director, United States Department of Justice,
Washington, D.C., and Michelle D.D. Bernstein, Staff Attorney, Office of General Counsel,
Department of Veterans Affairs, Washington, D.C.
OPINION AND ORDER
LETTOW, Senior Judge.
Stephen Durr has sued the United States, seeking damages for alleged violations of
federal law and the Fourteenth Amendment of the Constitution. See Compl. at 12, ECF No. 1.
Mr. Durr asserts that the United States Department of Veterans Affairs (“the VA”) is liable for
failing to adjudicate his applications for vocational rehabilitation benefits. See Compl. at 12.
Pending before the court is the United States’ (“the government”) motion to dismiss. See Def.’s
Mot. to Dismiss (“Def.’s Mot.”), ECF No. 11. The motion has been fully briefed. See Pl.’s
Resp. to Def.’s Mot. (“Pl.’s Resp.”), ECF No. 15; Def.’s Reply to Pl.’s Resp. (“Def.’s Reply”),
ECF No. 16. Because Mr. Durr has failed to establish jurisdiction by a preponderance of the
evidence, the government’s motion to dismiss is GRANTED and Mr. Durr’s claim is
DISMISSED.
BACKGROUND1
Mr. Durr enlisted in the Army on July 6, 1989. Def.’s Mot. App. at 2.2 In January of
1993, after hearing voices and suffering from paranoia, Mr. Durr received medical treatment and
was placed on the Temporary Disability Retired List (“TDRL”). Id. On June 13, 1994, the
Medical Evaluation Board recommended that Mr. Durr remain on the TDRL, as he continued to
suffer from auditory hallucinations and paranoia. Id. at 2-3. On August 5, 1994, an informal
Physical Evaluation Board (“PEB”) rated Mr. Durr’s disability “at 10 percent and recommended
his separation with disability severance pay.” Id. at 3. Mr. Durr was notified of the Board’s
decision as well as “his rights to appointed counsel and to appear before a formal PEB.” Id.
After Mr. Durr “concurred with the PEB’s finding and recommendation,” he was removed from
the TDRL and discharged from the Army on September 9, 1994. Id.
Mr. Durr applied for vocational rehabilitation benefits with the Department of Veterans
Affairs, first in 1994 and again in 1997. Compl. at 3-4. He did not receive a response regarding
either application. Compl. at 3-4. In 1999, Mr. Durr petitioned the Army Board for Correction
of Military Records to change his reenlistment eligibility code, but was unsuccessful. Def.’s
Mot. App. at 3. After repeating his request to the Board in 2011, 2014, 2015, and 2017 to no
avail, see Def.’s Mot. at 3, Mr. Durr filed suit in this court on December 10, 2018, alleging that
he was “unlawfully discharged due to an unconstitutional and discriminatory regulation.” Durr
v. United States, No. 18-1910, slip op. at 2 (Fed. Cl. Apr. 16, 2019) (internal quotation marks
omitted). The court dismissed the complaint for lack of jurisdiction, noting that “because [Mr.
Durr] brought these claims more than six years after they accrued, they are time barred.” Id. at 3
(footnote omitted).
Mr. Durr filed in this court again on August 18, 2020, alleging that the VA violated
federal law and the Fourteenth Amendment of the Constitution in failing to adjudicate his 1994
and 1997 applications for vocational rehabilitation benefits. Compl. at 12. He asserts that as a
result of the VA’s alleged inaction, he was unable to obtain gainful employment or begin a
career in law, and was instead incarcerated for periods of time from 2003 to 2018. Compl. at 7-
11. Mr. Durr seeks $15,000,000 in compensatory damages and $29,000,000 in punitive
damages.3 Compl. at 15.
1
The recitations that follow do not constitute findings of fact, but rather are recitals
attendant to the pending motions and reflect matters drawn from the complaint, the parties’
briefs, and records and documents appended to the complaint and briefs.
2
The government attached as an appendix to its motion the Record of Proceedings held
on October 28, 2014 by the Army Board for Correction of Military Records. When ruling on a
motion to dismiss, the court may consider documents outside the pleadings in determining
whether jurisdiction exists. See Fredericksberg Non-Profit Hous. Corp. v. United States, 113
Fed. Cl. 244, 252 (2013) (citing Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991)),
aff’d, 579 Fed. Appx. 1004 (Fed. Cir. 2014).
3
On October 26, 2020, Mr. Durr filed a motion to transfer the case to the Board of
Veterans’ Appeals. See ECF No. 13. Seven days later, Mr. Durr filed another motion, this time
2
STANDARDS FOR DECISION
The Tucker Act provides this court with jurisdiction over “any claim against the United
States founded either upon the Constitution, or any Act of Congress or any regulation of an
executive department, or upon any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). To
invoke this court’s Tucker Act jurisdiction, “a plaintiff must identify a separate source of
substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d
1167, 1172 (Fed. Cir. 2005) (en banc in relevant part) (citing United States v. Mitchell, 463 U.S.
206, 216 (1983); United States v. Testan, 424 U.S. 392, 398 (1976)). If a plaintiff fails to raise a
claim under a money-mandating provision, this court “should . . . [dismiss] for lack of subject
matter jurisdiction.” Jan’s Helicopter Serv., Inc. v. Federal Aviation Admin., 525 F.3d 1299,
1308 (Fed. Cir. 2008) (quoting Greenlee County v. United States, 487 F.3d 871, 876 (Fed. Cir.
2007)).
As plaintiff, Mr. Durr must establish jurisdiction by a preponderance of the evidence.
See Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011) (citing
Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)).4 When ruling
on a motion to dismiss for lack of jurisdiction, the court must “accept as true all undisputed facts
asserted in the plaintiff’s complaint and draw all reasonable inferences in favor of the plaintiff.”
Id. (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995)). “If a court lacks
jurisdiction to decide the merits of a case, dismissal is required as a matter of law.” Gray v.
United States, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514
to withdraw his motion to transfer. See ECF No. 14. If a court lacks subject matter jurisdiction
over a civil complaint, the court shall, “if it is in the interest of 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 . . . .” 28 U.S.C. § 1631.
The Board of Veterans’ Appeals “is a part of the Department of Veterans Affairs” with
the “mission of providing hearings and deciding appeals.” U.S. Department of Veterans Affairs,
Board of Veterans’ Appeals, https://www.bva.va.gov/. The Board is not a federal “court” under
the transfer statute. 28 U.S.C. § 610; see also Coleman v. United States, No. 13-431, 2014 WL
949984, at *4 (Fed. Cl. Mar. 7, 2014) (“[T]he Board is not a court for purposes of the transfer
provision and the Federal Circuit lacks jurisdiction over appeals from a regional VA office
pursuant to 28 U.S.C. § 7292. Thus, a transfer to [the Board] cannot be ordered.”). In short, the
court lacks the power to transfer this case to the Board of Veterans’ Appeals.
4
A court may “grant the pro se litigant leeway on procedural matters, such as pleading
requirements.” McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356 (Fed. Cir. 2007) (citing
Hughes v. Rowe, 449 U.S. 5, 15 (1980) (“An unrepresented litigant should not be punished for
his failure to recognize subtle factual or legal deficiencies in his claims.”)). This leniency,
however, cannot extend to lessening jurisdictional requirements. See Kelley v. Secretary, United
States Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987) (“[A] court may not . . . take a
liberal view of . . . jurisdictional requirement[s] and set a different rule for pro se litigants
only.”).
3
(1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed. Cir. 1985)); see also RCFC 12(h)(3)
(“If the court determines at any time that it lacks subject-matter jurisdiction, the court must
dismiss the action.”).
Furthermore, “[e]very claim of which the United States Court of Federal Claims has
jurisdiction shall be barred unless the petition thereon is filed within six years after such claim
first accrues.” 28 U.S.C. § 2501. This six-year statute of limitations “is a jurisdictional
requirement attached by Congress as a condition of the government’s waiver of sovereign
immunity and, as such, must be strictly construed.” Dalles Irrigation Dist. v. United States, 71
Fed. Cl. 344, 350 (2006) (quoting Hopland Band of Pomo Indians v. United States, 855 F.2d
1573, 1576-77 (Fed. Cir. 1988)).
ANALYSIS
In its motion to dismiss, the government argues that Mr. Durr’s complaint “must be
dismissed because his claims accrued . . . more than six years ago.” Def.’s Mot. at 7. The
government highlights Mr. Durr’s admission that he filed his applications for vocational
rehabilitation benefits in 1994 and 1997. Id. Mr. Durr asserts that the six-year statute of
limitations does not apply to his claims because the VA has not yet adjudicated his applications.
Compl. at 13. That argument is irrelevant because this court has no juridical power to address
actions of the VA regarding veterans’ benefits.5 Given this prior history, Mr. Durr’s claim in this
court must relate to his military discharge. In that respect, “[i]n a military discharge case, . . .
[the Federal Circuit] and the Court of [Federal] Claims have long held that the plaintiff’s cause
of action for back pay accrues at the time of the plaintiff’s discharge.” Martinez v. United States,
333 F.3d 1295, 1303 (Fed. Cir. 2003) (citing Bowen v. United States, 292 F.3d 1383, 1386 (Fed.
Cir. 2002)) (additional citations omitted). Additionally, “the claim for back pay is not a
‘continuing claim’ that accrues each time a payment would be due throughout the period that the
service member would have remained on active duty.” Id. (citing Longhine v. United States, 230
Ct. Cl. 920, 922 (1982) (additional citations omitted).
To the extent Mr. Durr is making a claim for back pay here, his claim accrued when he
was discharged from the Army in 1994. See Def.’s Mot. App. at 3. While the accrual of a claim
against the United States may be suspended under the “accrual suspension” rule, this exception
to the six-year statute of limitations established by 28 U.S.C. § 2501 “is ‘strictly and narrowly
applied . . . . [The plaintiff] must either show that defendant has concealed its acts with the result
that the plaintiff was unaware of their existence or it must show that its injury was ‘inherently
5
“Plaintiff could have appealed the decision of the [Regional Office of the VA] to the
Board [of Veterans Appeals], the decision of the Board to the [Court of Appeals for Veterans
Claims], and the decision of the [Court of Appeals] to the Federal Circuit, but at no time during
plaintiff’s various claims and appeals did the Court of Federal Claims have jurisdiction.”
Coleman, 2014 WL 949984, at *3. Furthermore, this court would lack jurisdiction over Mr.
Durr’s claims that the VA violated the Fourteenth Amendment. See LeBlanc v. United States, 50
F.3d 1025, 1028 (Fed. Cir. 1995) (holding that claims made under the Due Process Clause or
Equal Protection Clause of the Fourteenth Amendment do not constitute “a sufficient basis for
jurisdiction because they do not mandate payment of money by the government”).
4
unknowable’ at the accrual date.’” Martinez, 333 F.3d at 1319 (quoting Welcker v. United
States, 752 F.2d 1577, 1580 (Fed. Cir. 1985) (alteration in original)). There is no indication that
the government concealed its actions or that Mr. Durr was unaware of the Physical Evaluation
Board’s findings and recommendation in 1994. Mr. Durr “concurred” with the Board after it
“recommended his separation with disability severance pay.” Def.’s Mot. App. at 3. The accrual
suspension rule thus does not apply. Given that Mr. Durr’s cause of action accrued more than
six years ago, his claim is not cognizable in this court.
CONCLUSION
For the reasons stated, the government’s motion to dismiss is GRANTED. Mr. Durr’s
complaint shall be DISMISSED for lack of subject-matter jurisdiction.6 The clerk shall enter
judgment accordingly.
No costs.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Senior Judge
6
The court GRANTS Mr. Durr’s motion to withdraw his motion to transfer this case to
the Board of Veterans’ Appeals.
5