ALFORD v. USA

Filing 12

UNREPORTED ORDER - ORDER FOR THE UNITED STATES TO SHOW CAUSE. (re-docketed for administrative purposes only). Signed by Judge Charles F. Lettow. (vdw) Copy to parties.

ORIGI AL

3Jn tbe Wniteb ~tate5 ~ourt of jfeberal ~laims
No. 15-1583C
(Filed: March 18, 2016)
(NOT TO BE PUBLISHED)

CARLOS A. ALFORD,
Plaintiff,

v.
UNITED ST ATES,
Defendant.
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FILED
MAR 1 8 2ms
U.S. COURT OF
FEDERAL CLAIMS

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Carlos A. Alford, prose, Wilmington, North Carolina.
Ida Nassar, Trial Attorney, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, D.C., for defendant. With her on the briefs were Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Robert E.
Kirschman, Jr., Director, and Steven J. Gillingham, Assistant Director, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, D.C. Of counsel was
Major Cindie Blair, General Litigation Division, Office of the Judge Advocate General, United
States Marine Corps, Department of the Navy, Washington, D.C.

ORDER FOR THE UNITED STATES TO SHOW CAUSE

LETTOW, Judge.
Mr. Carlos A. Alford, a former United States Marine, brings this action claiming
entitlement to disability benefits and seeking restoration of rank, improvement in the grade of his
discharge, and back pay. The United States has responded with a motion to dismiss his claims
for lack of jurisdiction. Def. 's Motion to Dismiss, ECF No. 5. With respect to his disability
benefits claim, the United States argues that this court lacks jurisdiction because he has not
presented the claim to a military board. Id. at 6 (citing Chambers v. United States, 417 F.3d
1218, 1224 (Fed. Cir. 2005)). Pursuant to Chambers, this court generally may not take
jurisdiction over "claims of entitlement to disability retirement pay" unless "the appropriate
military board either finally denies such a claim or refuses to hear it." 417 F.3d at 1224 (citing
10 U.S.C. § 1201).
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Contrary to the government's argument, the record in this case suggests that Mr. Alford
may have presented his disability claim to a military board. Accordingly, the court issues this
show-cause order to the United States, requesting an explanation as to why its motion to dismiss
should not be denied with respect to the disability claim.

BACKGROUND
A. Mr. Alford Files Suit in This Court, and Then in United States District Court, Which
Orders Reconsideration by the Board for Correction of Naval Records
Mr. Alford served in the United States Marine Corps from 1981 through 1984, when he
was given an other-than-honorable discharge for "misconduct due to minor disciplinary
infractions." Compl. at 11. During this time, Mr. Alford was charged with at least one drug
infraction involving marijuana. He re-enlisted in 1985 by concealing his prior discharge and was
dishonorably discharged for bad conduct in 1988. Compl. 11-12. During the years that
followed, Mr. Alford filed roughly 30 applications with the Board for Correction of Naval
Records ("Board" or "Navy Correction Board"). See Alford v. United States, 123 Fed. Cl. 62, 64
n.4 (2015) ("Alford VF').
In 2010, he filed suit in the Court of Federal Claims, seeking restoration ofrank,
correction of records, back pay, and disability benefits. Alford v. United States, No. 10-525,
slip op. at 1 (Fed. Cl. Mar. 9, 2011) ("Alford I"). The court dismissed the case for lack of
jurisdiction. Id. at 8. In the order of dismissal, Judge Wiese carefully considered each of
plaintiff's claims. Beginning with Mr. Alford's claim for disability retirement, Judge Wiese
found that he had not presented his claim to a military board and consequently dismissed that
claim for lack of subject matter jurisdiction. Id. at 5. Mr. Alford's remaining claims were
likewise dismissed, although on timeliness grounds. Id. at 6-8.
Undeterred, in 2011 Mr. Alford filed suit in the United States District Court for the
Eastern District of North Carolina. See Compl., Alford v. Pfeiffer, No. 11-38 (E.D.N.C. Feb. 2,
2011) ("Alford II"). The complaint sought to remove a positive drug test from his record, to
raise his discharge to honorable, and to establish entitlement to back pay. Id. at 3. Mr. Alford
also asserted that "I am disabled. I suffer from Paranoia Schizophrenia, Major Depression, and
PTSD." Am. Compl., Alford II, No. 11-38, (E.D.N.C. Mar. 23, 2011). To support his claims,
Mr. Alford submitted the results of a polygraph examination regarding whether he ever used
marijuana while in the Marine Corps, mental health records from an examination conducted on
November 18, 2011, and mental health records from a Veterans Affairs ("VA") hospital
examination conducted January 20, 2012. Alford II, No. 11-38, 2012 WL 548806, at *4
(E.D.N.C. Feb. 21, 2012). The mental health records apparently indicated that Mr. Alford is
afflicted with mental illness. Id. "The stated purpose of the [January 20, 2012 mental health]
examination was 'to determine whether [Mr. Alford] was "insane" due to a mental health disease
when he committed the offenses that [led] to his dishonorable discharge from service in June
1984 and in June 1988. "' Id. The VA examiner opined that "[i]t is [at] least as likely as not that
Mr. Alford was 'insane' due to a mental health disease when he committed the offenses that [led]
to his dishonorable discharge from service in June 1984 and in June 1988." Id. (alterations in
original). The district court in North Carolina reviewed this new evidence, which the Board had

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not had an opportunity to consider, and on February 21, 2012 granted the government's motion
to dismiss without prejudice on the ground that Mr. Alford had not exhausted his remedy before
the Navy Correction Board. Id.
The Board subsequently considered Mr. Alford's case anew and denied it on January 10,
2013. See United States' Motion to Remand at 3, Alford v. Mabus, No. 13-15 (E.D.N.C. Aug.
23, 2013) ("Alford III"). But in doing so, it failed to consider the new evidence. See id. Not
accepting this result, Mr. Alford again filed suit on February 8, 2013 in the Eastern District of
North Carolina challenging the denial. Am. Compl. at 3, Alford III, No. 13-15 (E.D.N.C. Feb. 8,
2013). His complaint requested restoration of rank, restatement of his discharge to honorable, a
"full medical discharge," and back pay. Amendment to Am. Compl. at 4, Alford III, No. 13-15
(E.D.N.C. Feb. 13, 2013). In response, the United States conceded that the Board "improperly"
denied consideration and requested a remand to the Board. United States' Motion to Remand at
3, Alford III, No. 13-15 (E.D.N.C. Aug. 23, 2013). The United States' motion argued that
[r]emand is appropriate in this case because the [Navy Correction Board] did
not consider the other matters provided by the plaintiff in his petition, as was
contemplated by [the District Judge's February 21, 2012] Order. These matters
include 1) the polygraph regarding marijuana use; 2) the mental health examination
from 18 November 2011; 3) the VA Medical Center examination on 20 January
2012; and any other matters presented that were not previously considered.

Id. at 3-4. The district court granted the remand motion on January 10, 2014. Judgment, Alford
III, No. 13-15 (E.D.N.C. Jan. 10, 2014). 1
On remand, the Board reconsidered Mr. Alford's claims, and on July 7, 2014 it again
denied them. Citing SECNAV Instruction 5420.193, enclosure (1 ), the Board explained that
further consideration of an application will be granted only upon presentation
by the applicant of new and material evidence or other matter not previously
considered by the Board. New evidence is defined as evidence not previously
considered by the Board and not reasonably available to the applicant at the time
of the previous application. Evidence is material if it is likely to have a substantial
effect on the outcome.
Pl. 's Supplemental Brief ("Pl. 's Supp. Br.") Ex. 3 (setting out the initial pages of a decision by
the Board rendered July 7, 2014), ECF No. 10. The Board found the polygraph "is not 'new'
because [Mr. Alford] could have submitted a similar report with any of [his] previous
applications ... [and] [i]t is not material because it is unlikely to affect the outcome of [his]
request for correction of [his] record." Id. The Board noted that

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Mr. Alford opposed remand and filed an appeal with the United States Court of Appeals
for the Fourth Circuit, which concluded that the remand order was a non-final order over which
it lacked appellate jurisdiction. Alfordv. Mabus, 575 Fed. Appx. 170 (4th Cir. 2014) (per
curiam) ("Alford IV'').
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[t]he examination was conducted more than twenty-six years after the date
of [his] alleged use of marijuana and prior to [his] being diagnosed with
psychotic disorders. It is very likely that the passage of time, [his] long-term
alcohol abuse and use of 'crack' cocaine, the effects of [his] psychotic disorder,
and [his] mental state when the examination was conducted, had substantial
effects on the results of the examination and raise significant concerns about
the validity of those results.

Id. Turning next to the medical records, the Board found they were not new because Mr. Alford
could have submitted similar records in his prior applications. Id. The Board further found these
reports were not material because they did not determine he "suffered from a psychotic disorder
during [his] service in the Marine Corps," but instead confirmed merely that he now suffered
from mental illness. Id. And despite the VA examiner's conclusion that it was "at least as likely
as not" that Mr. Alford was mentally ill during his tenure in the Marine Corps, the Board did not
credit this evidence given that the mental evaluation was largely based on Mr. Alford's own
descriptions of himself, which the Board found "self-serving." Id.

B. Mr. Alford Convinces the Department of Veterans Affairs to Upgrade His Discharge
While Alford Ill was pending, but prior to the district court's remand order of January 10,
2014, the Department of Veterans Affairs concluded on December 23, 2013 that Mr. Alford
"was insane at the time in question," i.e., May 29, 1981 to June 29, 1984 and May 29, 1985 to
June 28, 1988. Pl. 's Supp. Br. Ex. 1, at 3 (VA Rating Decision (Dec. 23, 2013)). As evidence,
the Department of Veterans Affairs cited the medical examination conducted on January 20,
2012 that plaintiff had submitted to the Board as new evidence. Id.
Then on March 22, 2014, the Department of Veterans Affairs wrote Mr. Alford a letter
concluding that "for VA purposes" the "discharge for the period of May 29, 1981 to June 29,
1984 is determined to be honorable." Pl. 's Supp. Br. Ex. 1 (Letter from VA Winston-Salem
Regional Office to Mr. Alford (Mar. 22, 2014)), at 1. The letter did not explain why the
Department had reached this conclusion, except that the VA Rating Decision dated December
23, 2013 had said "VA Rating Decision finds you meet the criteria for insanity at the time in
question, both periods of service." Id. Ex. 1, at 2. The Department's letter further stated "[t]he
claimant is entitled to health care benefits under Chapter 17, Title 3 8 USC, for any disability
determined to be service connected for the period May 29, 1981 to June 29, 1984." Id. at 1.
C. Jn Light of the Department of Veterans Affairs' Decision to Upgrade His Discharge
and the Navy Correction Board's Final Decision of July 7, 2014, Mr. Alford Again Files
Suit Challenging the Board's Decision
In 2014, Mr. Alford again filed suit in the United States District Court for the Eastern
District of North Carolina, seeking the same remedies as in his prior cases. That court dismissed
the suit for lack of jurisdiction on June 23, 2015, finding that the case properly belonged in the
Court of Federal Claims pursuant to the Tucker Act, 28 U.S.C. § 1491. Alford v. Mabus, No. 14195, 2015 WL 3885730, at *3 (E.D.N.C. June 23, 2015) ("Alford JI"). Perhaps anticipating that
decision, Mr. Alford had filed a complaint with the Court of Federal Claims three months earlier
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on March 2, 2015. See Alford VI, 123 Fed. Cl. at 62. But because he filed his complaint in the
Court of Federal Claims before the district court dismissed the action pending there, Mr. Alford
fell afoul of 28 U.S.C. § 1500, which deprives this court of jurisdiction in cases where a plaintiff
has pending a suit regarding the same operative facts in another court, including a federal district
court. Id. Pursuant to that statute, the court dismissed his complaint on September 1, 2015, even
though the district court had decided that his claims properly belonged in this court under the
Tucker Act. Id. at 65-66.
Undaunted by these procedural obstacles, Mr. Alford filed this case on December 28,
2015, again seeking restoration of rank, enhancement of discharge, back pay, and disability
benefits.
ORDER FOR THE UNITED STATES TO SHOW CAUSE
Given the foregoing circumstances, the United States is directed to show cause
(1) whether Mr. Alford's disability claim was implicated by the earlier decisions of the
United States District Court for the Eastern District of North Carolina, considering
the fact that his complaints in that court appear to have alleged mental impairments
related to his service in the United States Marine Corps;
(2) why this court should not take jurisdiction over Mr. Alford's disability claim under
the rationale of Chambers, 417 F.3d at 1224, either because: (a) the Board's actions
constitute a final decision denying Mr. Alford's disability claim, or (b) the Board's
actions constitute a refusal to hear Mr. Alford's disability claim; and
(3) whether the recent decisions of the Department of Veterans Affairs, which found
Mr. Alford was "insane" during his enlistments, and which concluded his discharge
was "honorable" for "VA purposes," have any effect on plaintiffs claims in this
court.

The United States shall comply with this order on or before April 8, 2016.
It is so ORDERED.

c~

Judge

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