ALFORD v. USA

Filing 22

Order of Dismissal finding as moot 12 Motion to Dismiss - Rule 12(b)(1)and finding as moot 18 Motion for Summary Judgment. The Clerk is directed to enter judgment. Signed by Judge Nancy B. Firestone. (dw1) Copy to parties.

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Nos. 15-191C & l5-898C'
(Filed: September l, 2015)

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CARLOS A. ALFORD,
Pro Se Plaintiff,

Pro Se Plaintiff; 28 U.S.C. $ 1500;
Lack of Subject-Matter Jurisdiction
THE UNITED STATES,
Defendant.

Carlos A. Alfurd,Wilmington, NC,pro se plaintiff.

David D'Allesandris,United States Department of Justice, Civil Division,
Washington, DC, with whom were Benjamin C. Mizer, Principal Deputy Assistant
Attomey General, Robert E. Kirschman, Jr., Director, and Steven J. Gillingham,
Assistant Director. Major Cindie Blair, United States Department of the Nary, Office
the Judge Advocate General, General Litigation Division, of counsel.

of

OPINION DISMISSING COMPLAINT
Firestone, Judge.
Pending before the court is the motion to dismiss filed by defendant the United
States ("the govemment"), Docket No. 12. In the motion, the government argues that

plaintiff Carlos A. Alford's ("Mr. Alford") complaint in his first case, No. l5-191, must
be dismissed for lack of subject-matter jurisdiction pursuant to Rule l2(b)(1) of the Rules

I On August 17,2015, plaintiff filed a second complaint in this court. As the complaint
is
substantially similar to plaintiffs first complaint, the court hereby CONSOLIDATES the two
cases tosether.

of the United States Court of Federal Claims ("RCFC") as both precluded by

a

prior court

ruling and time-barred by the statute of limitations. In his complaints, plaintiff alleges
that he was illegally discharged from the United States Marine Corps ("Marine Corps")
on the basis of his mental illness. and asks that the court set aside the decision ofthe

Board for Correction of Naval Records C'BCNR') regarding his discharge. He seeks
reinstatement to military duty, restoration of rank and promotions, back pay, and

compensatory and punitive damages totaling $20 million.

In response to the govemment's motions, plaintiff argues that he has stated a
claim2 and that the statute of limitations only began to run in July 2013, when he alleges
that the United States Department of Veterans Affairs

("VA") made its final

determination that plaintiff was insane at the time that he committed the offenses leading
to his other than honorable C'OTH') discharge. He also argues in the altemative that the
statute of limitations should be tolled because his mental illness constitutes a "lesal

disability."
As set forth below, the court finds based on its review that plaintiff frled a case
arising from the same operative facts in the United States District Court for the Eastern

District of North Carolina that was pending at the time that he filed his first complaint
here and that he filed an appeal of the decision in the district court to the United States

Court of Appeals for the Fourth Circuit that was pending at the time that he filed his

2

The govemment has not moved to dismiss pursuant to RCFC 12(bX6).

second complaint here. As a result, these cases are barred by 28 U.S.C. $ 1500i and, in
accordance with RCFC 12(hX3), the complaints must be DISMISSED sua sponte.

I.

BACKGROUND
Mr. Alford served in the Marine Corps twice, first from 1981 to 1984, and again

from 1985 to 1988. In his complaints, Mr. Alford alleges that he was discriminated
against by the Marine Corps on the basis of his mental illness and wrongfully discharged.

Plaintiff states that he sought an upgrade of his OTH discharge to honorable at the

BCN\

but was denied.a In his first complaint, he further alleges that the VA has

declared him to be insane for the relevant time periods and diagnosed him with post-

traumatic stress disorder, schizoaffective type. In his second complaint, he alleges that he
was suffering from mental illness during his first enlistment, causing him bedwetting,

anxiety, and sleepwalking. He alleges that small violations were used as an excuse to
discharge him despite a flight surgeon's recommendation of an honorable disability

3

The statute provides:
The United States Court ofFederal Claims shall not have jurisdiction of any claim
for or in respect to which the plaintiff or his assignee has pending in any other
court any suit or process against the United States or any person who, at the time
when the cause of action alleged in such suit or process arose, was, in respect
thereto, acting or professing to act, directly or indirectly under the authority ofthe
United States.

28 U.S.C. $ 1500,
a

It appears that plaintiff has filed 30 applications to the BCNR over the last 17 years, all seeking
to upgrade his discharges.

discharge, and re-alleges that the VA has declared him "insane and not responsible for his

offenses."

Before filing the first of his two cases in this court,5 plaintiff hled a complaint in
the district court on November 10, 2014,6 re-alleging the claims made to the BCNR and

alleging that the BCNR was required to remove his OTH discharge because the VA had
removed

it.

In that amended complaint, as in his complaints in this court, he alleged that

he developed undiagnosed PTSD during his frrst enlistment, rendering him unable to

perform his duties and leading to his discharge. Amended Complaint at 2, Alford v.
Mabus, No. 14- 195 (E.D.N.C. Nov. I7 ,2014). The district court dismissed his claim for
lack ofjurisdiction on June 26,2015, and Mr. Alford appealed the decision on June 29,

2015.

5

Plaintiff has previously filed a case in this court on substantially the same grounds. On August
5,2010, Mr. Alford filed a complaint in this court alleging that his 1984 discharge was improper.
He sought back pay and allowances for the rank of sergeant, $1.7 million in damages, a disability
retirement, and an honorable discharge. Complaint, Alfod v. United States, No. l0 -525 (Fed.
Cl. Aug. 5, 2010). On March 9, 201 1, this court dismissed his complaint, finding that it lacked
subject-matter jurisdiction over his claim for disability retirement pay and that his other claims
were baned by the statute of limitations. Alford v. United States, No. 10-525 (Fed. Cl. Mar. 9,
201l).
6

Plaintiff has previously filed several other cases in the district court on the same grounds. On
February 2, 2011, while the previous case in this court and seven applications at the BCNR were
pending, plaintiff filed a complaint against the director of the BCNR in the United States District
Court for the Eastem District ofNorth Carolina, alleging that his 1984 discharge was improper.
Alford v. Pheffer, No. 7:11-38, 2012WL 548806 (E.D.N.C. Fed. 21, 2012). On February 21,
2012, the district court in Alford v. Pfieffer dismissed his complaint for lack of subject-matter
jurisdiction, finding that he had not exhausted his administrative remedies. Id'
On January 22,2013,

plaintiff filed

a second complaint in the district court, seeking a restoration

of his previous rank, a promotion, and back pay. Alford v. Mabus. et al., No. 7:13-15 (E.D.N.C.
Jan. 10,2014). On January 10,2014, the district court remanded his case to the BCNR to
consider new evidence. Id.

4

On March 2,2015, before the case in the district court had been resolved,

plaintiff

filed the first of his two cases in this court. On August 17,2015, while his appeal of the
district court's decision was pending, plaintiff filed the second case in this court.

I

DISCUSSION: Plaintiffs Claims Are Barred by 28 U.S.C. g 1500
Without a waiver of sovereign immunity, no suit may be brought in the United

States Court of Federal Claims. United States v. Mitchell, 445 U.S. 535, 538 (1980);

United States v. Testan, 424 U.S. 392,399 (1976). Such a waiver is made in the Tucker
Act, which grants this court jurisdiction over "any claim against the United States
founded either upon the Constitution, or any Act ofCongress or any regulation ofan
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.

la91(a)(l). Whether the court possesses jurisdiction to decide

$

the merits of a case is a

threshold matter, see PODS. Inc. v. Porta Stor. Inc., 484 F.3d 1359,1365 (Fed. Cir. 2007)

(citing Steel Co. v. Citizens for
cannot proceed

a Better

Env't, 523 U.S. 83,94-95 (1998),

ifa court lacks jurisdiction

as a case

to hear it, see Arbaugh v. Y & H Corp., 546

U.S. 500, 514 (2006) ("[W]hen a federal court concludes that it lacks subject-matter

jurisdiction, the court must dismiss the complaint in its entirety." (citation omitted)).
RCFC 12(hX3); see generally John R. Sand & Gravel v. United States, 552 U.S. 130
(2008),

affg

457 F.3d 1345 (Fed. Cir.2006).

In this court's grant of subject-matter jurisdiction, Congress has carved out an
exception:

The United States Court of Federal Claims shall not have jurisdiction of
any claim for or in respect to which the plaintiff or his assignee has pending
in any other court any suit or process against the United States or any
person who, at the time when the cause of action alleged in such suit or
process arose, was, in respect thereto, acting or professing to act, directly or
indirectly under the authority of the United States.
28 U.S.C. $ 1500. According to the Supreme Court, "[t]wo suits are for or in respect to
the same claim, precluding jurisdiction in [this court], if they are based on substantially

the same operative facts, regardless ofthe relief sought in each
Tohono O'Odham Nation, 563 U.S.

30'1

,l3l

suit." United States v.

S.Ct. 1723,l73l (2011). The purpose of

1500 is to "save the Govemment from burdens of redundant

$

litigation." Id. at 1729-30'

To determine whether $ 1500 applies, a court must answer two questions in the

affrrmative:
court, and,

"(l)

if

whether there is an earlier-filed 'suit or process' pending in another

so, (2) whether the claims asserted in the earlier-filed case are

'for or in

respect to' the same claim or claims asserted in the later-filed action in [this court]."

Brandt v. United States, 710 F.3d 1369,1374 (Fed. Cir. 2013) (citing Trusted Integration.

Inc. v. United States, 659 F.3d

ll59,

1163-64 (Fed. Cir. 20l

l)).

For the first question, a

claim is "pending" from the time that it is filed until a finaljudgment is entered, and
begins pending once again when a motion for reconsideration or a notice ofappeal is

filed. Id. at 1379-80. For the second question, courts must distinguish between operative
facts and background facts; it is those that "are critical to plaintiffs' claims in both

actions" that are relevant. See Central Pines Land Co. v. United States, 697
1364-65 (Fed. Cir. 2012).

F

.3d 1360,

In this case, there is no dispute that Mr. Alford's suit was pending in the district
court when he filed his first complaint, and that his suit was pending on appeal when he

filed his second complaint. Further, it is clear that all three suits are based on the same
operative facts, as Mr. Alford's discharges-which he alleges are wrongful-and his
alleged development of mental illness during his enlistments are central to all three. In

his complaint in the district court, Mr. Alford alleges that he developed "PTSD:
Schizoaffective" and was wrongfully discharged because his condition went undiagnosed
because that disorder "was not even

fully recognized until 2010." Amended Complaint at

2, Alford v. Mabus, No. 7:14-CV-195-D (E.D.N.C. Nov. 17, 2014). He does not identifu

whether he is referring to his 1984 or 1988 discharge, but the allegations ofthe complaint

would appear to apply to both discharges. In his first complaint in this court, he alleges
that his discharge was the result of discrimination about his mental illness, which he
describes as "Combat: PTSD-Schizoaffective Disease." Complaint at 1-2, Alford v.

United States, No. l5-191C (Fed. Cl. 2015). Again, he does not identi$ the specific
discharge that he is challenging, but his reference to the most recent BCNR denial

indicates that he is referring to his 1984 discharge. In his second complaint, Mr. Alford
appears to allege that he was wrongfully discharged because his mental illness should

have prevented him from receiving a misconduct discharge and that a subsequent rating

decision by the VA and instructions from the United States Department of Defense entitle

him to an upgrade of his 1984 and 1988 discharges. Complaint at 1-2, Alford v. United
States, No. l5-898C (Fed. Cl. 2015). He further alleges that his second enlistment was

void. Id. at 2. Accordingly,

as

the operative facts of all three suits are plaintiffs alleged

mental illness and discharges, this court must dismiss both complaints for lack of subj ectmatter iurisdiction.

IIL

CONCLUSION
For the reasons set forth above, plaintiff s complaints are DISMISSED. The court

need not reach the arguments set forth in the govemment's motion to dismiss, and hereby

DENIES that motion as MOOT. Additionally, plaintiff
judgment, Docket No.

18,7

s

motion for summary

which this court stayed pending the resolution of the motion

to dismiss, is similarly DENIED as MOOT.8 The Clerk is directed to enter judgment
accordingly.

IT IS SO ORDERED.

7

In the motion, plaintiffargues that the court should change Mr. Alford's discharge date to
December 23, 2014 and find him to be insane on the basis that his discharge was wrongful
because both he and the commanding officer who discharged him were mentally ill.
Additionally, he argues that the statute of limitations should be tolled due because the
govemment failed to tum over documents necessary to discover and file his claim.

Plaintiff also filed a motion to proceed in forma pauperis, Docket No. 4. The motion is hereby
GRANTED for the purposes of filing the complaint. Further, plaintifffiled a motion for
settlement, Docket No. 22. Because the couft lacks subj ect-matter j urisdiction over plaintiff s
claims, the motion is DENIED as MOOT.
8