JACKSON v. MABUS
Filing
15
MEMORANDUM OPINION regarding 8 Defendant's Motion to Dismiss. Signed by Judge Dabney L. Friedrich on May 15, 2018. (JK)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GARY L. JACKSON,
Plaintiff,
v.
Civil Action No. 16-2186 (DLF)
RICHARD V. SPENCER, Secretary,
UNITED STATES DEPARTMENT OF THE
NAVY,
Defendant.
MEMORANDUM OPINION
In this action, pro se plaintiff Gary L. Jackson asserts employment discrimination claims
based on race, color, and sex against his former employer, the Secretary of the United States
Department of the Navy. 1 Compl. at 13, Dkt. 1; Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2(a). Jackson seeks injunctive and declaratory relief, as well as damages and
attorney’s fees, for alleged “retaliation, harassment, and constructive discharge because of [his]
race (Afro-American), color [(]Dark Brown), and sex (Male).” Compl. at 13, 17–18. Before the
Court is the defendant’s Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. Dkt. 8. For the reasons that follow, the Court will grant the
defendant’s motion pursuant to Rule 12(b)(1).
1
At the time Jackson filed his complaint, Ray Maybus was Secretary of the Navy. Richard V.
Spencer has since been confirmed as Secretary and was automatically substituted as the
defendant in this case pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
I. BACKGROUND
Jackson, an African-American male, enlisted in the Unites States Marine Corps on June
1, 1977. Compl. at 1. During his Marine Corps career, Jackson received numerous decorations,
letters of appreciation, and commendations. Id. He was honorably discharged on January 15,
1991. Id.
Jackson’s discrimination claims stem from his final Marine Corps assignment to
Henderson Hall, Marine Corps Headquarters in Arlington, Virginia. Id. at 3. While there, his
superiors allegedly retaliated against him for refusing to approve a warehouse inventory
inspection in August 1988 and subsequently requesting an investigation by the U.S. Marine
Corps Inspector General. Id. at 2–4. Thereafter, the Inspector General allegedly failed to
investigate Jackson’s allegations, and Jackson’s chain of command threatened to discharge him
from the Marine Corps. Id. at 4–5. Jackson’s superiors also discussed ordering him to appear
before a competency review board but were dissuaded by a gunnery sergeant who expressed
concerns about Jackson’s harsh treatment. Id. at 5. Additionally, Jackson’s superiors delayed
for a short time, but eventually granted, Jackson’s request to attend the Non-Commissioned
Officer Academy. Id. When Jackson returned to Arlington in late 1988, he was removed from
the warehouse chief assignment and placed in a special services storefront manager assignment,
one he viewed as inconsistent with his military operational specialty and rank. Id. at 6.
As a result of his reassignment and his alleged continued mistreatment, in September
1990, 2 Jackson made a request through his chain of command for “mast”—an opportunity to
express his concerns to his commanding officer. Id.; see also Navy Marine Corps Dir. 1700.23F;
2
According to Jackson’s complaint, he first requested mast in September 1990, but this date
appears to be inaccurate given Jackson’s earlier September 1989 letter requesting mast. See
Def.’s Mot. to Dismiss, Ex. 1 at 6, Dkt. 8-2.
2
Def.’s Mem. at 4 n.7. Although his superiors allegedly threatened to demote and discharge him
for this demand, Jackson persisted. Compl. at 7. In January 1990, Brigadier General Gail M.
Reals reassigned Jackson to the warehouse position. Id. Later that year, Captain Jeffrey Nelson,
Jackson’s former commander, allegedly placed “an unsubstantiated page 11” in his military
record for a violation of security procedure, lodged an adverse fitness report against him, and
requested a Technical/Incompetence Review Board. Id. Jackson filed a rebuttal and requested,
without success, to have the adverse fitness report removed. Id.
In June 1990, Jackson applied for re-enlistment in the Marine Corps. Id. at 9. According
to Jackson, his superiors held his application until January 15, 1991, the expiration date for his
re-enlistment, and then rushed him through medical discharge processing so that he would be
deemed physically fit for discharge, despite his respiratory ailment and other health issues. Id. at
9-10. Jackson also alleges that his superiors modified his re-enlistment code—contrary to the
Office of the Commandant of the Marine Corps’ instructions—to reflect a code of RE-4
(ineligible to re-enlist), rather than RE-3C (eligible to re-enlist). Id. at 10-11.
Before his discharge, Jackson’s supervisors leveled a wide range of criticisms against
him. Among other things, Captain Nelson reported that Jackson did not work well with his peers
or supervisors and demonstrated inadequate leadership, poor performance, and antisocial and
discriminatory behavior. Dkt. 8-3 at 6. While First Lieutenant Jeffrey Baldyga gave Jackson a
favorable review and indicated that he was “ready for promotion,” he also noted that Jackson
was “not always willing to accept responsibility of his section” and “had difficulty
communicating with others.” Id. at 13. Based on the criticisms of these and other officers, as
well as his own personal knowledge, Colonel R. R. Buckley “strongly recommend[ed], for the
best interests of the U.S. Marine Corps, that . . . Jackson’s request for reenlistment be
3
disapproved.” Dkt. 8-8 at 5 (emphasis in original). Colonel Buckley concluded that Jackson was
“totally unprofessional, absolutely unqualified to be promoted and should never be considered
for reenlistment/retention. He is one of the poorest examples of a [Senior Non-commissioned
Officer] . . . .” Id.
Before leaving the Marine Corps, Jackson applied to the Board for Correction of Naval
Records (the Board) to have derogatory material removed from his fitness records. Dkt 8-2 at 1–
3. Jackson’s December 4, 1990 application alleged that he had become the target of “retaliation
and continual harassment” as a result of his requests to speak to his commanding officer. Id. at
1. In support, he included a September 1989 letter in which he requested mast and referred to his
change in duties as “an act of discrimination and retaliation” by his superiors who “are
prejudiced against blacks who stand up to them.” Id. at 7.
On January 15, 1991, Jackson was honorably discharged from the Marines. Dkt. 1-2 at 9.
Jackson alleges that, thereafter, Captain Nelson blocked Jackson from receiving a Navy
Achievement Award for his performance while serving in the warehouse inspection position, as
well as a commendation for securing top secret documents discovered in a rental vehicle.
Compl. at 8.
In March 1991, Jackson filed a second application with the Board requesting “to have
[his] reentry code upgraded.” Dkt. 8-3 at 1. In April 1991, the U.S. Marine Corps Performance
Evaluation Review Board issued an advisory opinion finding that Jackson’s fitness report was
appropriate and should remain in his record, and separately determined that the reenlistment code
was correctly assigned. Dkt. 8-3 at 4–7. And on April 14, 1992, the Board issued an adverse
decision denying both of Jackson’s 1990 and 1991 applications. Dkt. 8-5 at 1. The Board
concluded that the “evidence submitted was insufficient to establish the existence of probable
4
material error or injustice.” Id. The Board found no basis for removing the fitness reports or the
adverse page 11 counseling. Id. at 2. The Board also determined that the reenlistment code was
properly assigned. Id.
Following the denial of his two applications, Jackson filed four additional applications
with the Board. On October 27, 1992, Jackson alleged that “there was a concerted effort on the
part of my superiors to prevent me from re-enlisting” based on “negative generalities” and
requested that his reentry code be upgraded from “4” to “1.” Dkt. 8-6 at 3. On March 23, 1993,
Jackson filed another application requesting the removal of the RE-4 code and raising various
other “negative generalities.” Id. at 1. While Jackson’s 1992 and 1993 applications contained
new statements relating to his honorable service, the Board consolidated his applications,
concluded that the statements did not constitute material evidence warranting reconsideration,
and denied Jackson relief. Dkt. 8-7 at 1.
On August 29, 1994, Jackson filed a fifth application with the Board requesting an
upgrade of his reentry code. Dkt 8-8 at 1–2. As new evidence, Jackson included his chain of
command’s recommendation denying his request for reenlistment and a message from the
Commandant of the Marine Corps that had not been included in his previous application. Id. at
5–7. On October 14, 1994, the Board again refused to reconsider Mr. Jackson’s case for lack
“any new and material evidence or other matter not previous considered by the Board.” Dkt 8-9
at 1.
In a sixth and final May 15, 2000 application to the Board, Jackson alleged that his
reentry code was “unjustly entered” and that he did not sign his form for release as required.
Dkt. 8-10 at 1. On July 17, 2000, the Board again concluded that Jackson had failed to include
any new material evidence and denied Jackson relief. Dkt. 8-11 at 1.
5
Over fourteen years later, on May 15, 2014, Jackson filed a formal employment
discrimination complaint against the Marine Corps. Dkt. 1-2 at 124. On June 19, 2015, the
Marine Corps issued a final agency decision dismissing Jackson’s complaint on the ground that
Title VII does not cover uniformed members of the military. Id. at 124–126. On July 19, 2016,
the Equal Employment Opportunity Commission (EEOC) affirmed the Marine Corps’ decision
dismissing Jackson’s complaint. Id. at 112–115. On September 21, 2016, the EEOC denied
Jackson’s request for reconsideration. Id. at 99–100.
On November 2, 2016, Jackson filed this action against the Secretary of the United States
Department of the Navy. Compl. at 1. In his complaint, Jackson sets forth general allegations of
race, color, and sex discrimination. 3 As specific evidence of discrimination, Jackson alleges that
Captain Nelson openly expressed his preference that the “number of Blacks not exceed the
number of whites in any one section of the Warehouse.” Id. at 9. He further alleges, relying on a
written statement provided in 1992 by Corporal Wayne Grice, that Corporal Grice overheard
Captain Nelson say that Jackson’s separation from the Marine Corps “took us a while, but we
finally got him. That’s one less Black Staff Sergeant.” Dkt. 1-2 at 3.
Following his discharge, Jackson sought relief from various sources, including high-level
officers in the Marine Corps, Dkt. 1-2 at 28, 74, attorneys, id. at 19, members of Congress, id. at
29, 71, and the Department of Justice, id. at 66. Nonetheless, Jackson claims that he waited
more than fifteen years after his honorable discharge to file this action because his chain of
3
For example, Jackson alleges that “[his superiors’] actions constituted employment
discrimination, (based on my race, color, and sex),” Compl. at 2; “I was subjected to retaliation,
harassment, and constructive discharge because of my race, color, and sex,” id. at 2; “I sensed
that my refusal to sign the inspection report angered the chain-of-command, because of my race,
color, and sex,” id. at 4; “Because of my race, color, and sex, I was constantly harassed by [my
civilian supervisor],” id. at 6.
6
command refused to offer him assistance and blocked his efforts to redress the retaliation.
Compl. at 13. Jackson further asserts that he was unaware of his legal rights. Id. at 12–13.
According to Jackson, “it did not occur to him that he had been discriminated against” until
October 18, 2014, when he revealed the wrongdoing to a friend. Id. at 12.
This case was reassigned to the undersigned judge on December 4, 2017. The Secretary
now moves for dismissal under Rules 12(b)(1) and 12(b)(6).
II.
LEGAL STANDARD
Under Rule 12(b)(1), a party may move to dismiss an action when the court lacks subject-
matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A motion to dismiss under Rule 12(b)(1) “presents
a threshold challenge to the court’s jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C.
Cir. 1987). Federal district courts are courts of limited jurisdiction, and it is “presumed that a
cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
377 (1994). Thus, to survive a Rule 12(b)(1) motion, the plaintiff must demonstrate that the
court has jurisdiction by a preponderance of the evidence. Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992).
When deciding a Rule 12(b)(1) motion, the court “assume[s] the truth of all material
factual allegations in the complaint and construe[s] the complaint liberally, granting plaintiff the
benefit of all inferences that can be derived from the facts alleged, and upon such facts determine
jurisdictional questions.” Am. Nat. Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011)
(internal citation and quotation marks omitted). Those factual allegations, however, receive
“closer scrutiny” than they would in the Rule 12(b)(6) context. Jeong Seon Han v. Lynch, 223 F.
Supp. 3d 95, 103 (D.D.C. 2016). Also, unlike when evaluating a Rule 12(b)(6) motion, a court
may consider documents outside the pleadings to evaluate whether it has jurisdiction. See
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Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). If the court
determines that it lacks jurisdiction, the court must dismiss the claim or action. Fed. R. Civ. P.
12(b)(1), 12(h)(3).
III. ANALYSIS
In his complaint, Jackson alleges that Marine Corps officials unlawfully discriminated
against him based on his race, color, and sex, in violation of Title VII. Jackson requests the
following relief: (1) immediate reinstatement in the Marine Corps with back pay, bonuses, and
cost of living allowances; (2) retirement, after one month’s reinstatement; (3) compensatory
damages in the amount of $300,000; (4) expungement of adverse statements in his military
record; (5) attorney’s fees; (6) a letter of apology; (7) training for all civilian and military
personnel on “MAST, Chapter 138, EEO” procedures; and (8) no future retaliation as a result of
this action. Compl. at 17–18.
Although Jackson only asserts claims under Title VII, construing his pro se complaint in
the most favorable light, see Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999),
the Court will also consider whether Jackson asserts a viable claim for relief under the Military
Whistleblowers and Protection Act, the Administrative Procedure Act (APA), or other federal
statutes.
A.
Title VII
Jackson’s Title VII claims fail because Title VII does not apply to uniformed members of
the armed forces. While this Circuit has not addressed the issue, see Veitch v. England, 471 F.3d
124, 127 (D.C. Cir. 2006), every Circuit deciding the question has held that Title VII does not
apply to uniformed members of the military. See, e.g., Fisher v. Peters, 249 F.3d 433, 438 (6th
Cir. 2001); Brown v. United States, 227 F.3d 295, 298 (5th Cir. 2000); Hodge v. Dalton, 107
8
F.3d 705, 707–12 (9th Cir. 1997); Randall v. United States, 95 F.3d 339, 343 (4th Cir. 1996);
Doe v. Garrett, 903 F.2d 1455, 1459 (11th Cir. 1990); Roper v. Dep’t of the Army, 832 F.2d 247,
248 (2d Cir. 1987); Johnson v. Alexander, 572 F.2d 1219, 1223–24 (8th Cir. 1978); see also
Collins v. Sec’y of Navy, 814 F. Supp. 130, 132 (D.D.C. 1993) (dismissing a former Navy
lieutenant’s Title VII complaint for lack of jurisdiction). There is no dispute that Jackson was a
uniformed member of the Marine Corps when the alleged discriminatory acts took place.
Compl. at 1–2. Thus, the Court lacks jurisdiction to consider Jackson’s Title VII claims.
B.
Military Whistleblower Protection Act
Jackson fares no better under the MWPA because the statute does not “provide . . . any
private cause of action, express or implied.” Acquisto v. United States, 70 F.3d 1010, 1011 (8th
Cir. 1995) (per curiam); accord Penland v. Mabus, 78 F. Supp. 3d 484, 495 (D.D.C. 2015)
(stating that a violation of the MWPA “cannot be rectified by this court because the MWPA does
not provide a private right of action”). “Indeed, no judicial review is available under the MWPA
because Congress precluded alternative fora by providing a specific form of redress in the
statute.” Bias v. United States, No. 17-2116, 2018 WL 566415, at *3 (Fed. Cir. Jan. 26, 2018);
see also Rana v. Dep’t of the Army, No. 15-cv-0957, 2015 WL 3916361, at *1 (D.D.C. June 22,
2015) (dismissing service member’s MWPA claims for lack of subject-matter jurisdiction).
Accordingly, to the extent that Jackson alleges a claim under the MWPA, this Court lacks
jurisdiction to consider it.
C.
Administrative Procedure Act
Applying “familiar principles of administrative law,” however, this Court has the
authority to review decisions rendered by the Board in Jackson’s case. Kreis v. Sec’y of the Air
Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989) (Kreis I); see also Rodrigues v. Penrod, 857 F.3d
9
902, 906 (D.C. Cir. 2017) (“[D]istrict courts have routinely reviewed these board decisions in the
first instance.”). “Board decisions are subject to judicial review and can be set aside if they are
arbitrary, capricious or not based on substantial evidence.” Chappell v. Wallace, 462 U.S. 296,
303 (1983); see also 5 U.S.C. § 706(2)(A). Courts are equipped to determine whether a board of
correction “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action
including a rational connection between the facts found and the choice made.” Kreis v. Sec’y of
the Air Force, 406 F.3d 684, 686 (D.C. Cir. 2005) (quotation marks omitted) (Kreis II). But
because “courts are particularly unfit to review the substance of military decisions,” decisions of
boards of corrections are entitled to an “unusually deferential application of the arbitrary and
capricious standard.” Kreis I, 866 F.2d at 1514 (internal quotation marks omitted).
While any such claims that Jackson can assert under the APA are reviewable by this
Court, they are untimely. See 28 U.S.C. § 2401(a) (civil actions against the United States must
be commenced “within six years after the right of action first accrues”). “Unlike an ordinary
statute of limitations, § 2401(a) is a jurisdictional condition attached to the government’s waiver
of sovereign immunity and, as such, must be strictly construed.” Spannaus v. DOJ, 824 F.2d 52,
55 (D.C. Cir. 1987); see also Lewis v. Sec’y Navy, 892 F. Supp. 2d 1, 5 (D.D.C. 2012) (same).
Section 2401 applies to “all civil actions whether legal, equitable, or mixed,” and “likewise
applies to claims seeking to correct or upgrade the discharge of former service members.”
Kendall v. Army Bd. for Corr. of Military Records, 996 F.2d 362, 365 (D.C. Cir. 1993). Thus, a
challenge to military board of corrections decision must be filed within six years of an adverse
review board decision. See Nihiser v. White, 211 F. Supp. 2d 125, 128–29 (D.D.C. 2002)
(citation omitted). But where a board of correction “reconsiders” a decision, some courts have
held that “the reopening doctrine allows an otherwise stale challenge to proceed,” Peavy v.
10
United States, 128 F. Supp. 3d 85, 99 (D.D.C. 2015) (quotations omitted), “provided that the
application for reconsideration is filed within six years of the adverse review board decision,”
Nihiser, 211 F. Supp. 2d at 129.
In Jackson’s case, the Board issued its initial adverse decision on April 14, 1992. Dkt 85. Thereafter, in 1993, 1994, and again in 2000, Jackson applied for reconsideration, but on each
occasion the Board refused to reconsider its decision, citing a lack of new and material evidence.
On each occasion, Jackson listed the date of discovery as May 18, 1990. Dkt. 8-6; Dkt. 8-7; Dkt.
8-8; Dkt. 8-9; Dkt. 8-10; Dkt. 8-11. Regardless of whether the Board’s most recent decision is
deemed an “adverse review decision” or a “reconsideration,” Jackson’s APA claims are time
barred because he did not file this action until November 2, 2016, more than twenty-three years
after the Board’s initial decision and more than sixteen years after the Board’s July 17, 2000
final decision.
In an attempt to keep his claims alive, Jackson invokes the equitable tolling doctrine.
Compl. at 13. Equitable tolling is an extraordinary remedy that courts apply sparingly. Norman
v. United States, 467 F.3d 773, 776 (D.C. Cir. 2006). “[M]ere excusable neglect is not enough to
establish a basis for equitable tolling; there must be a compelling justification for delay, such as
‘where the complainant has been induced or tricked by his adversary’s misconduct into allowing
the filing deadline to pass,’” Martinez v. United States, 333 F.3d 1295, 1318 (Fed. Cir. 2003)
(quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)), or where a plaintiff has
been unable “despite all due diligence . . . to obtain vital information bearing on the existence of
[his] claim,” Holland v. Florida., 560 U.S. 631, 649 (2010) (citations omitted). In Jackson’s
case, no such extraordinary circumstance stood in his way.
11
Jackson suggests that the statute of limitations should be tolled because he was unaware
of the laws that applied to his claims. That reason falls well short of the high bar for equitable
tolling. See Menominee Indian Tribe of Wis. v. United States, 764 F.3d 51, 58 (D.C. Cir. 2014)
(“The circumstance that stood in a litigant’s way cannot be a product of that litigant’s own
misunderstanding of the law.”). Even accepting that Jackson was unaware of his legal rights, he
was acutely aware of the alleged underlying acts of discrimination, and the record reveals “no
extraordinary circumstances” that prevented Jackson from timely filing suit.
Jackson also claims that he did not realize that he had been subjected to racial
discrimination until October 18, 2014 when a friend suggested that he read about employment
discrimination law under Title VII, see Compl. at 12. But Jackson’s initial request for mast in
1989 establishes that he was less unaware than he now claims. See Dkt. 8-2 at 7 (“It was an act
of discrimination and retaliation. Mr. Rix and Major Walsh are prejudiced against blacks who
stand up to them.”); Dkt. 1-2 at 3 (alleging that Captain Nelson, Jackson’s then-commanding
officer, reportedly said, “It took us awhile, but we finally got rid of him. That’s one less black
staff sergeant.”). Jackson claims that officials in his chain of command blocked and frustrated
his attempts to obtain assistance in redressing his alleged wrongdoings, see Compl. at 11, but his
repeated filings and appeals to the Board demonstrate that he was undeterred by his superiors’
actions. As Jackson acknowledges, following his discharge, he sought redress not only from the
Department of Navy, but also from “the Department of Justice, attorneys, congressmen, new
media, etc.” Id. at 12–13. Therefore, the Court dismisses any APA claims that Jackson can raise
as time barred.
12
D.
Jackson’s Remaining Inferred Claims
To the extent that Jackson’s request for reenlistment with back pay can be construed as
asserting a claim under the Military Pay Act, 37 U.S.C. § 204, and the Tucker Act, 28 U.S.C.
§ 1346(A)(2), 4 based on an alleged wrongful discharge, this Court lacks jurisdiction. “Absent
other grounds for district court jurisdiction, a claim is subject to the Tucker Act and its
jurisdictional consequences if, in whole or in part, it explicitly or ‘in essence’ seeks more than
$10,000 in monetary relief from the federal government.” Kidwell v. Dep’t of Army, Bd. for
Correction of Military Records, 56 F.3d 279, 284 (D.C. Cir. 1995). Although it is not clear what
portion of Jackson’s $300,000 demand for damages constitutes a claim for back pay and related
benefits, any such claim likely exceeds $10,000. And even assuming Jackson has a viable claim
for back pay less than $10,000, it is barred by the six-year statute of limitations that applies to
suits against the United States. Courts “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). Jackson separated from active duty on January 15, 1991, more than
twenty-five years before he filed this action. 5
4
The Tucker Act vests original jurisdiction in the U.S. Court of Federal Claims for civil actions
against the United States “founded either upon the Constitution, or any act of Congress, or any
regulation of an executive department, or for liquidated or unliquidated damages in cases not
sounding in tort.” 28 U.S.C. § 1491(a)(1). The Little Tucker Act gives federal district courts
concurrent jurisdiction over such civil actions that do not involve claims over $10,000. 28
U.S.C. § 1346(a)(2).
5
The Court does not address whether Jackson was required to seek further administrative review
before seeking back pay under the Military Pay Act. Compare Martinez v. United States, 333
F.3d 1295, 1308 (Fed. Cir. 2003) (service member was not required to exhaust board of
correction of navy records remedies before filing a Military Pay and Act Tucker Act suit for back
pay and related relief), with Santana v. United States, 127 Fed. Cl. 51, 58-59 (2016) (court
lacked jurisdiction over Military Pay Act claims that were based on allegations of whistleblower
retaliation because service member did not first pursue claims administratively by challenging
13
To the extent that Jackson bases his demand for damages on a tort claim arising out of his
emotional distress, it too fails. The Federal Tort Claims Act grants federal courts jurisdiction
over claims arising from certain torts committed by federal employees in the scope of their
employment. 28 U.S.C. § 1346. The Court lacks jurisdiction here too because any such claim is
untimely and Jackson failed to exhaust his administrative remedies. See Aguilar Mortega, 520 F.
Supp. 2d 1 (rejecting former service member’s Federal Tort Claims Act claim for failure to
exhaust administrative remedies).
CONCLUSION
For the foregoing reasons, the Court will grant the defendant’s Motion to Dismiss. Dkt.
8. A separate order consistent with this decision accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
United States District Judge
Date: May 15, 2018
the decision of special selection and continuation boards), aff’d in part and vacated in part on
other grounds, No. 16-2435, 2017 WL 5632685 (Fed. Cir. 2017).
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