Durr v. Department of Army

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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STEPHEN DURR, )
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Plaintiff, )
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v. ) Civil Action No. 19-1340 (ABJ)
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DEPARTMENT OF ARMY, et al., )
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Defendants. )
____________________________________)
MEMORANDUM OPINION
Pro se plaintiff Stephen Durr, a former soldier in the United States Army, brings this
action under the Administrative Procedure Act, 5 U.S.C. §§ 701–706 (“APA”), against the
Department of Army and the Office of Attorney General (“defendants”). Plaintiff contends he
was wrongfully separated from the Army in 1994. Since that time, he has brought a series of
appeals, requests for correction of his military record, and requests for reinstatement in the
Army, each of which has been denied. Now, plaintiff seeks judicial review of a 2014 decision by
the Army Board for Correction of Military Records (“ABCMR”) denying his requests for the
correction of his military record, reinstatement to active duty, a promotion, and receipt of back
pay and other pecuniary benefits. Among other forms of relief, plaintiff requests that the Court
set aside the decision of the ABCMR, order the Army to reinstate him to an appropriate position
in the Army, and award him monetary damages. Defendants have moved to dismiss the
complaint under Federal Rule of Civil Procedure 12(b)(1). For the reasons stated below, the
Court agrees that it lacks subject matter jurisdiction over the APA claim and that plaintiff has
failed to show his right to mandamus relief. Therefore, defendants’ motion to dismiss will be
granted.
BACKGROUND
I. Factual Background
Plaintiff served in the Army from July 6, 1989, until September 9, 1994. Compl.
[Dkt. # 1] ¶¶ 1, 5. On January 9, 1993, he was discharged from active duty after being diagnosed
with schizophrenia, App. C to Compl. [Dkt. #1-1] at 13, 1 and was placed on the Temporary
Disability Retired List (“TDRL” or “the list”) effective January 8, 1993. Compl. ¶ 2; App. B to
Compl. [Dkt. # 1-1] at 6–10. Placement on the TDRL requires a minimum disability rating of
30%, and it enables disabled service members to remain in the Army and collect retired pay and
benefits. App. B to Compl. at 7–8. To remain on the list, Plaintiff was required to have periodic
physical examinations. Id.
On May 24, 1994, a medical evaluator observed that plaintiff’s disability “does not
appear stabilized.” Compl. ¶ 3; App. C to Compl. at 13–14; Defs.’ Mem. of P & A in Supp. of
Defs.’ Mot. to Dismiss [Dkt. # 9-1] (“Defs.’ Mem.”) at 3. The medical evaluator recommended
that plaintiff remain on the TDRL. App. C to Compl. at 14. On August 9, 1994, the Army’s
Physical Evaluation Board (“PEB” or “the board”) notified plaintiff that it had “informally
reviewed [his] recent periodic medical examination and other available records,” Compl. ¶ 4;
App. D to Compl. [Dkt. # 1-1], and determined that plaintiff’s condition had not improved
sufficiently to make him fit for duty. App. D to Compl. at 18. The board found that plaintiff’s
disability rating was 10%, too low to remain on the disability list. Compl. ¶ 13; App. D to
1 A document outside the complaint may be considered on a motion to dismiss if it is
“referred to in the complaint” and is “integral to” the plaintiff’s claim. Kaempe v. Myers, 367
F.3d 958, 965 (D.C. Cir. 2004). All documents referred to by an Appendix number (“App. #”)
were attached to the complaint at Exhibit 1.
2
Compl. at 18. It informed plaintiff that he would, therefore, be removed from the TDRL with
severance pay. App. D to Compl. at 18. The PEB included information about plaintiff’s rights
to either concur or disagree with the findings, receive guidance from a Physical Evaluation
Board Liaison Officer, and have a hearing on his case. Id. at 16–17. Plaintiff concurred with the
findings. Compl. ¶ 9, App. D to Compl. at 19. Based on the determination of the Physical
Evaluation Board, the Army issued an order separating plaintiff from military service on
September 9, 1994, citing plaintiff’s “permanent physical disability” and 10% disability rating.
Compl. ¶¶ 5; App. E to Compl. [Dkt. # 1-1] at 21.
Plaintiff now contends that the PEB provided him with “false and misleading information
with regard for [sic] the requisites for separation from service,” which caused him to
“unknowingly” agree to its determination. Compl. ¶¶ 6, 9. In addition, plaintiff asserts that the
Army inappropriately cited a permanent disability as grounds for his separation from service
when the medical evaluation had simply stated that his disability did “not appear stabilized.”
Id. ¶¶ 10–11, 12b. Plaintiff claims that due to these errors, the Army is required to reinstate him
to service. Id. ¶ 14.
Plaintiff filed claims with the Army Board for the Correction of Military Records in
March 1999 and February 2011, asking unsuccessfully to be reinstated. Ex. 2 to Defs.’ Mem.
[Dkt. # 9-3] at 2. 2 Plaintiff then filed the ABCMR appeal at issue here on March 21, 2014.
Compl. ¶ 17. The ABCMR dismissed the action on October 28, 2014, citing plaintiff’s failure to
provide “any medical evidence to demonstrate an injustice or error with regard to the separation
of the plaintiff.” Compl. ¶ 18, citing App. F to Compl. [Dkt. # 1-1] at 3. Plaintiff contends,
2 Ex. 2 is the Court of Federal Claims Order of Dismissal of a 2018 complaint filed by
plaintiff (discussed further below). Though plaintiff fails to mention the interim ABCMR
decisions, for purposes of detailing the history of this matter, the information is included here.
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however, that he submitted the original findings of the Army medical board as evidence, and
thus the ABCMR decision was arbitrary, capricious and an abuse of discretion in violation of the
APA. Compl. ¶¶ 19–20.
Since 2014, plaintiff has filed a second claim for the correction of his military record with
the ABCMR which remains outstanding. Compl. ¶¶ 23–24. Additionally, plaintiff brought an
action in of the Court of Federal Claims seeking reinstatement to active duty, payment of lost
benefits, and other forms of monetary relief. Pl.’s Resp. To Defs.’ Mot. to Dismiss [Dkt. #12]
(“Pl.’s Resp.”) ¶ 15(a); Ex. 2 to Defs.’ Mem. [Dkt. # 9-3] at 1. 3 The Court of Federal Claims
dismissed the case, holding that the claim was barred by the court’s six-year statute of
limitations. Ex. 2 to Defs.’ Mem. at 3.
II. Procedural History
Plaintiff initiated this action on May 6, 2019, seeking judicial review of the ABCMR’s
2014 decision and monetary relief in the amount of $25 million for lost wages and other
pecuniary benefits. Compl. ¶¶ 27, 29; Pl.’s Amendment to Addendum [Dkt. # 5] ¶ 2; Pl.’s
Amendment to Relief Sought in Initial Appeal [Dkt. # 18] at 1. 4 He argues that because the
ABCMR failed to consider the medical evidence he submitted, including the 1994 medical
evaluation and PEB determination, its decision denying his request to correct his military record
was arbitrary, capricious, and an abuse of discretion. Compl. ¶ 20.
3 Although plaintiff failed to include information regarding the Court of Federal Claims
action in his complaint, defendants raised it in their Memorandum of Points & Authorities in
Support of Motion to Dismiss at 4–5 and attached the Court of Federal Claim’s Order of
Dismissal at Ex. 2 to their Motion to Dismiss, and plaintiff acknowledged the action in his
Response at ¶ 15.
4 Plaintiff filed a Supplement to the Complaint [Dkt. # 2] and an Amendment to the
Complaint (“Amendment to Addendum”) [Dkt. #5], which are read as part of the Complaint.
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In addition, plaintiff appears to seek mandamus relief under 28 U.S.C. § 1361. Compl.
¶ 29. He urges the Court to direct the Army to reinstate him to military service as of the date of
his permanent separation from the Army and to award him various employment benefits he
claims he would have received had he not been separated. Compl. ¶ 27. 5
On August 13, 2019, defendants filed their motion to dismiss for lack of subject matter
jursidiction, arguing that the APA does not waive sovereign immunity for actions seeking
monetary relief. Defs.’ Mem. at 8. In addition, defendants argue that should the Court find that
it lacks jurisdiction over the case, it should not transfer the case back to the Court of Federal
Claims for review of plaintiff’s petition for mandamus, as that court has already determined
plaintiff’s claims are time barred. Id. at 10.
Plaintiff filed a response on August 21, 2019, arguing among other things, that this Court
maintain jurisdiction through the Mandamus Statute and can, therefore, order the relief he seeks.
Pl.’s Resp. [Dkt. # 12] at 15(d)–16.
STANDARD OF REVIEW
In evaluating a motion to dismiss under Rule 12(b)(1), a court must “treat the complaint’s
factual allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be
derived from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.
Cir. 2000), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (citations
omitted). Nevertheless, the court need not accept inferences drawn by the plaintiff if those
inferences are unsupported by facts alleged in the complaint, nor must the court accept plaintiff’s
legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In addition, where
5 Plaintiff does not refer to 28 U.S.C. § 1361 in the complaint or either supplements. He
first references it in the Pl.’s Resp. ¶ 15(b). However, reading the complaint liberally, the Court
finds that plaintiff’s request that the Court order defendants to take actions to correct plaintiff’s
record and grant him other forms of relief, Compl. ¶ 29, makes out a claim for mandamus relief.
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the action is brought by a plaintiff proceeding pro se, “the court must take particular care to
construe plaintiff's filings liberally, for such complaints are held ‘to less stringent standards than
formal pleadings drafted by lawyers.’” Cheeks v. Fort Myer Constr., 722 F. Supp. 2d 93, 107
(D.D.C. 2010), quoting Haines v. Kerner, 404 U.S. 519, 520 (1972).
Unlike when deciding a motion to dismiss under Rule 12(b)(6), a court “is not limited to
the allegations of the complaint in deciding a Rule 12(b)(1) motion.” Hohri v. United States, 782
F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, a court
“may consider such materials outside the pleadings as it deems appropriate to resolve the
question whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics,
104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192,
197 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.
Cir. 2005).
ANALYSIS
I. The Court lacks subject matter jurisdiction under the APA and Tucker Act.
Under Federal Rule of Civil Procedure 12(b)(1), a plaintiff bears the burden of
establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002).
Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies outside
this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994);
see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court with limited
jurisdiction, we begin, and end, with examination of our jurisdiction.”). Because “subject-matter
jurisdiction is an ‘Art[icle] III as well as a statutory requirement [. . .] no action of the parties can
confer subject-matter jurisdiction upon a federal court.’” Akinseye v. District of Columbia, 339
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F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702 (1982).
Subject matter jurisdiction is a necessary predicate to an exercise of this Court’s Article
III power. See Kokkonen, 511 U.S. at 377. It is statutory in nature, and the party seeking federal
judicial review must establish that it has satisfied at least one of the statutory bases. See Lujan,
504 U.S. at 561. Additionally, in cases like this one where the defendant is an agency of the
United States of America, the plaintiff also bears the burden of establishing that the federal
government has waived its sovereign immunity. See Roum v. Bush, 461 F. Supp. 2d 40, 46
(D.D.C. 2006).
Here, plaintiff asserts that the Court has subject matter jurisdiction under the APA and
Mandamus Statute. Compl. ¶¶ 20, 27. Defendants, on the other hand, argue that the APA does
not waive the government’s sovereign immunity for an action seeking monetary relief. Defs.’
Mem. at 8. They maintain that the Tucker Act, 28 U.S.C. § 1491(a), divests the Court of
jurisdiction over the APA claim because it confers the Court of Federal Claims with exclusive
jurisdiction over requests for monetary relief in excess of $10,000. Defs.’ Mem. at 8–9.
Although section 702 of the APA often serves as a waiver of sovereign immunity because
it “waives that immunity for any claim brought by an individual who ‘suffer[ed] legal wrong
because of agency action, or [was] adversely affected or aggrieved by agency action,’” Nat’l
Motor Freight Traffic Assoc., Inc. v. Gen. Services Admin., 25 F. Supp. 3d 52, 61 (D.D.C. 2014),
citing 5 U.S.C. § 702, it does not apply to cases in which a party seeks monetary damages. 5
U.S.C. § 702. Congress expressly “restricted section 702’s waiver of sovereign immunity by
stating that nothing in the APA ‘confers authority to grant relief if any other statute that grants
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consent to suit expressly or impliedly forbids the relief which is sought.’” Spectrum Leasing
Corp. v. United States, 764 F.2d 891, 892–93 (D.C. Cir. 1985), quoting 5 U.S.C. § 702.
Moreover, “the Tucker Act vests exclusive jurisdiction in the United States Court of
Federal Claims over claims against the United States for ‘liquidated or unliquidated damages in
cases not sounding in tort.” Smalls v. United States, 471 F.3d 186, 189 (D.C. Cir. 2006), citing
28 U.S.C. § 1491. “The Little Tucker Act provides an exception, vesting concurrent jurisdiction
in district courts for civil actions or claims against the United States for $10,000 or less.” Id.,
citing 28 U.S.C § 1346(a)(2). “So the operative question is whether [plaintiff’s] claim is one for
over $10,000 in ‘money damages.’” Palacios v. Spencer, 267 F. Supp. 3d 1, 5 (D.D.C. 2017),
aff’d Palacios v. Spencer, 906 F.3d 124 (D.C. Cir. 2018).
In Palacios, the plaintiff sought review of a decision by the Board of Correction of Naval
Records as well as back pay and other benefits “that would naturally flow from” the correction of
his military record. 267 F. Supp. 3d at 5. Despite the plaintiff’s assertion that “primarily his
complaint sought to correct his military records and that the essence of his complaint was
therefore not monetary,” Palacios, 906 F.3d at 127, the Circuit Court upheld the lower Court’s
determination that it did not have subject matter jurisdiction because “[t]he complaint expressly
demanded the entry of a judgment including an award of back pay exceeding $10,000,” and,
therefore, the Court of Federal Claims had exclusive jurisdiction over the claim under the Tucker
Act. Id. at 126–27.
Here, as in Palacios, plaintiff seeks both monetary and non-monetary relief. And given
plaintiff’s express demand for pecuniary damages in excess of $10,000, the Court is not required
to evaluate the “essence” of the complaint. See id. (“We ‘look only to the essence of a complaint
in the absence of an explicit request for monetary relief.’”), quoting Schwalier v. Hagel, 734
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F.3d 1218, 1221 (D.C. Cir. 2013). Because the Court of Federal Claims has exclusive
jurisdiction over claims exceeding $10,000 under the Tucker Act, defendants’ motion to dismiss
for want of subject matter jurisdiction is granted. 6
II. Plaintiff is not entitled to mandamus relief.
Even if the Court was to read plaintiff’s demand for the correction of his military record
and reinstatement to the Army separately from his demand for pecuniary relief, which is not
required, plaintiff would still not meet the heavy burden of showing he is owed mandamus relief.
The extraordinary remedy of a writ of mandamus is available to compel an “officer or
employee of the United States or any agency thereof to perform a duty owed to plaintiff.” 28
U.S.C. § 1361. Plaintiff bears a heavy burden of showing that his right to a writ of mandamus is
“clear and indisputable.” In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (internal citation
omitted). “‘The law must not only authorize the demanded action, but require it; the duty must
be clear and indisputable.’” Lozada Colon v. Dep’t of State, 170 F.3d 191, 191 (D.C. Cir. 1999),
quoting United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 420 (1931). Furthermore,
under D.C. Circuit case law, review of the actions of military corrections boards is “unusually
deferential.” Piersall v. Winter, 435 F.3d 319, 324 (D.C. Cir. 2006), citing Kreis v. Sec’y of the
Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989).
Here, plaintiff asserts that to correct his wrongful separation from the Army twenty-four
years ago, the Court should order the Army to reinstate him effective from the date of his
separation and make the appropriate corrections to his record, rank, and pay. Compl. ¶ 27.
However, plaintiff fails to show that his entitlement to that extraordinary relief is clear and
6 This decision would not differ if it considered plaintiff’s earlier request for $10 million in
damages instead of the $25 million request submitted in his November 25, 2019 Amendment to
Relief Sought in Initial Appeal [Dkt. # 18].
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indisputable – he does not direct the Court to any law that requires the Army to perform the
requested actions, and prior attempts to seek correction of his record and reinstatement have been
rejected by both the Army Board for Correction of Military Records and the Court of Federal
Claims. Accordingly, plaintiff’s request for a writ of mandamus is denied.
CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss is granted. A separate order
will issue.
AMY BERMAN JACKSON
United States District Judge
DATE: January 30, 2020
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