Avery v. United States Department of the Air Force et al

Filing 9

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 10/1/2015. (PSM)

FILED
2015 Oct-01 AM 10:13
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
MICHAEL ANTHONY
AVERY,
Plaintiff,
vs.
UNITED STATES
DEPARTMENT OF THE AIR
FORCE, et al,

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7:15-cv-00419-LSC

Defendants.

MEMORANDUM OF OPINION
Plaintiff Michael Avery filed a pro se complaint seeking a review of the Air
Force Board for Correction of Military Records’ decision not to change the reasons
for his discharge and not to remove certain records about mental illness. Further,
Avery asserts monetary claims stemming from his discharge from the Air Force.
The Defendants have moved to dismiss for lack of subject matter jurisdiction. For
the reasons stated below, the motion is due to be GRANTED, and this case is due
to be DISMISSED.
I.

Background
The relief Avery requests stems from his involuntary separation from the Air

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Force in 1969. Avery entered the Air Force in 1967. In a psychiatric evaluation in
1969, a psychiatrist diagnosed him with a severe character behavior disorder, which
the psychiatrist determined was not a disability. Avery was administratively
discharged later the same year. In 1971, Avery requested that his discharge be
upgraded to honorable, which the Air Force Discharge Review Board granted.
Since his discharge, Avery has filed numerous requests with the Air Force Board
for Correction of Military Records (“AFBCMR”). Further, he filed a suit in the
Court of Federal Claims seeking largely the same relief sought in this case—review
of the AFBCMR’s decision and monetary damages. The court in that case
dismissed his claims for lack of subject matter jurisdiction because his claims were
time barred. 1
II.

Standard of Reivew
Federal courts have limited jurisdiction. They possess “only that power

authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375, 377 (1994). Moreover, every federal court is presumptively
without jurisdiction “unless the contrary affirmatively appears from the record.”
King Iron Bridge & Manufacturing Co. v. County of Otoe, 120 U.S. 225, 225 (1887).

1

Avery seems to ask this Court at one point to review the decision from the Court of Federal
Claims. However, the United States Court of Appeals for the Federal Circuit has exclusive
jurisdiction over appeals from that court. 28 U.S.C. § 1295.
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The burden is on the plaintiff to establish that jurisdiction exists. OSI, Inc. v. U.S.,
285 F.3d 947, 951 (11th Cir. 2002). When a federal court lacks subject matter
jurisdiction, it must dismiss the case. Arbaugh v. Y&H Corp., 546 U.S.500, 514
(2006).
III.

Discussion
Avery cites to the Administrative Procedure Act, 5 U.S.C. § 701–706, the

Tucker Act, 28 U.S.C. § 1491, and the Military Pay Act, 37 U.S.C. § 204, as his
bases for jurisdiction in this case. However, none of those statutes grant jurisdiction
to this Court to grant the relief requested by Avery.
1. Administrative Procedure Act
The Administrative Procedure Act (“APA”) waives sovereign immunity in
actions in district courts “seeking relief other than money damages” because of a
legal wrong due to an agency action. 5 U.S.C. § 702. However, the government
only consents to suits for “equitable and mandamus relief only and not money from
the Treasury.” Rhodes v. U.S., 760 F.2d 1180, 1183 (11th Cir. 1985). “A money
claim which can be assuaged only by expenditure from the Treasury of the United
States cannot be entertained without a statutory grant of jurisdiction to a United
States court, and dressing it up as a review under the APA does not help at all.” Id.
at 1184. Additionally, district court review is only available in claims “for which
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there is no other adequate remedy in a court.” 5 U.S.C. § 704. “[T]he availability
of a remedy in the [Court of Federal Claims] under the Tucker Act has been held to
be an adequate remedy.” Alabama Rural Fire Ins. Co. v. Naylor, 530 F.2d 1221, 1230
(5th 1976).
Further, “[b]y statute, the [Court of Federal Claims] may, in appropriate
military back pay cases, ‘provide an entire remedy,’ including ‘restoration to office
or position, placement in appropriate duty or retirement status, and correction of
applicable records.’” Mitchell v. U.S., 930 F.2d 893, 896 (Fed. Cir. 1991) (citing 28
U.S.C. § 1491(a)(2)). In fact, the Court of Federal Claims “has extensive
experience reviewing decisions of corrections boards in military pay cases.” Id. In
Martinez v. U.S., 333 F.3d 1295 (Fed. Cir. 2003), the court held that the Court of
Federal Claims still offered a “full and adequate remedy” even though the
plaintiff’s claim was time barred. Id. at 1320. The Plaintiff’s failure to take
advantage of that remedy in a timely manner did not negate the adequate remedy
that he did have before the limitations period ran in the Court of Federal Claims.
In this case, Avery is seeking “compensatory damages in an amount to be
determined by this court” and “punitive damages.” These claims seem to arise
from Avery’s claim that he “suffered the loss of a military career and military
retirement benefits” because he was administratively discharged, not medically
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discharged. If Avery had been medically discharged, he claims that he would be due
retirement benefits. Such a claim for money damages because of an unlawful
discharge is properly brought under the Military Pay Act, which is a “moneymandating” statute. See Martinez, 333 U.S. at 1303. Therefore, Avery’s claim is
primarily one for money damages, and it is not the type of equitable relief a district
court can give under the APA. See Rhodes, 760 F.2d 1180. Thus, Avery fails to meet
the first requirement to establish jurisdiction under the APA.
Additionally, as in Martinez, Avery failed to file a timely complaint with the
Court of Federal Claims. However, if Avery had sought his monetary damages and
correction of his record within the six year statute of limitations period, he would
have had a full and adequate remedy. Thus, a remedy in a court existed for Avery.
He merely failed to pursue that remedy in a timely manner. Accordingly, because
Avery’s claim is largely one for money damages and he had a full and adequate
remedy with the Court of Federal Claims, this Court does not have jurisdiction
under the APA.
2. Tucker Act and Military Pay Act
The Tucker Act, 28 U.S.C. §§ 1346, 1491, vests jurisdiction for non-tort
claims against the United States for damages less than $10,000 in district courts.
See Richardson v. Morris, 409 U.S. 464, 465 (1973). The Court of Federal Claims
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has jurisdiction over all claims above $10,000. See 28 U.S.C. § 1491; Friedman v.
U.S., 391 F.3d 1313, 1315 (11th Cir. 2004). The jurisdiction granted under the
Tucker Act “authorize[s] only actions for money judgments and not suits for
equitable relief against the United States.” Richardson, 409 U.S. at 465. Further,
the Tucker Act “is itself only a jurisdictional statute; it does not create any
substantive right enforceable against the United States for money damages.” U.S.
v. Testan, 424 U.S. 392, 398 (1976). Avery cites the Military Pay Act, 37 U.S.C. §
204, which does create a substantive right to sue “[i]n the context of military
discharge cases . . . .” Martinez, 333 F.3d at 1303. Non-monetary claims against the
United States, such as claims under the Military Pay Act, must be brought within
six years after the action accrues. 28 U.S.C. § 2401. A claim for monetary damages
under the Military Pay Act accrues at the time of discharge. See Martinez, 333 F.3d
at 1302.
Avery has only made a general request for monetary relief in his complaint.
Because this Court only has jurisdiction over claims less than $10,000, Avery failed
to plead facts sufficient to establish subject matter jurisdiction. However, even if
Avery had pleaded that his claims were less than $10,000, such monetary claims
under the Military Pay Act would be time barred. Avery was discharged from the
military in 1969. Thus, any monetary claim he had for back pay or disability pay
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should have been brought before the statute of limitations period ended in 1975.
3. Claims For Loss of Employment Opportunities, Lost Wages, and
Emotional Distress
Avery further claims that, “In the civilian sector, he has lost wages, benefits
in delay of VA Vocational Rehabilitation Benefits approval, and employment
opportunities . . . [and suffered] mental anguish, loss of enjoyment of life, and other
pecuniary benefits’ losses.” However, Avery has not cited any statute that would
allow him to recover compensatory damages for such claims. Moreover, he has not
alleged any negligent behavior that might plausibly make out a claim under the
Federal Tort Claims Act, 28 U.S.C. § 1346. Thus, Avery failed to meet his burden
of showing this Court has subject matter jurisdiction over such claims.
IV.

Conclusion
Avery has failed to plead a sufficient basis for subject matter jurisdiction.

Because he asks for monetary relief, this Court does not have jurisdiction to review
the AFBCMR’s decision under the APA. Furthermore, Avery did not specifically
request relief less than $10,000, and even if he had, the applicable statute of
limitations period has run. Thus, this Court does not have jurisdiction over his
monetary claims under the Tucker Act. Moreover, Avery failed to show that this
Court has subject matter jurisdiction over his other claims for compensatory
damages. The Defendants’ motion to dismiss for lack of subject matter jurisdiction
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is due to be GRANTED, and this case is due to be DISMISSED. A separate Order
will be entered.
Done this 1st day of October 2015.

L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
182185

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