Opinion
EP-06-CA-14-PRM.
June 26, 2006
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
On this day, the Court considered Defendant United States Army Review Boards Agency's ("Defendant") "Motion to Dismiss Pursuant to Fed.R.Civ.Pro. 12(b)(1)" ("Motion to Dismiss"), filed on April 5, 2006, Plaintiff Brian Jaffe Lewis's ("Plaintiff") "Response to Defendant's Motion to Dismiss" ("Response"), filed on April 18, 2006, and Defendant's Reply to Plaintiff's Response, filed on May 1, 2006 in the above-captioned cause. After due consideration, the Court is of the opinion that Defendant's Motion to Dismiss should be granted for the reasons set forth below.
Previously known as Plaintiff's "Motion to Grant Compensatory and Punitive Damages of $4.7 Trillion, Military Relief, Compensations Consisting of V.A. Compensation, Un-Employment Compensation as Pursuant to `the Whistle Blowers Act.'"
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 16, 1982, Plaintiff underwent a medical evaluation to determine whether he was "medically qualified for Army enlistment." Pl.'s Compl. 39-43. In this evaluation, the medical examiners discovered that Plaintiff had sustained an iliac fracture in November of 1976. Id. at 39. The medical officers ultimately concluded that Plaintiff was medically qualified for enlistment despite his pre-existing injury. Id. at 39-43. On December 29, 1982, Plaintiff enlisted into the United States Army (the "Army"). Id. at 8. On August 7, 1984, Plaintiff began to complain of pain in his left hip after a physical training exercise. Id. at 48. On September 7, 1984, Army physicians performed a bone scan on Plaintiff which was negative for any injury. Id. at 46. Nonetheless, the Army medical staff continued to evaluate Plaintiff to attempt to ascertain the source of his pain. See id. at 59, 68 (October 1984 medical records reviewing Plaintiff's condition). On October 2, 1984, a physician's assistant consulting on Plaintiff's case indicated a provisional diagnosis of malingering. Id. at 63. Furthermore, according to a report from the Department of the Army Board for Correction of Military Records ("ABCMR"), on September 11, 1984, a bar was placed on Plaintiff reenlisting in the Army due to Plaintiff's "absence without leave (AWOL), misconduct and unsatisfactory performance." Id. at 8. Ultimately, on December 29, 1984, Plaintiff was discharged from the Army for "unsatisfactory performance . . . under honorable conditions." Id. at 8, 12.
The page numbers cited from Plaintiff's Complaint refer to the hand written numbers placed in consecutive order on the top center or top right of every page.
For fifteen years, Plaintiff has repeatedly applied for disability retirement payments for his left hip injury through the ABCMR. Def.'s Resp. 2. On February 15, 1989, the ABCMR first reviewed Plaintiff's claim of entitlement to disability retirement payments. Id.; Pl.'s Compl. 7-11. The ABCMR denied Plaintiff's application for disability, concluding that Plaintiff was correctly discharged for "reasons other than physical disability." Pl.'s Compl. 9. Furthermore, the ABCMR refused to amend the characterization of his discharge due to his failure to "exhaust the administrative remedy available to him, i.e., application to the Discharge Review Board." Id. at 10.
See Pl.'s Compl. 21 (June 5, 1998 application to the ABCMR); id. at 20 (May 21, 1999 application to the ABCMR); id. at 13 (May 17, 2000 application to the ABCMR); id. at 19 (May 19, 2000 application to the ABCMR); id. at 15 (August 16, 2000 application to the ABCMR); id. at 18 (April 11, 2001 application to the ABCMR); id. at 16 (September 24, 2001 application to the ABCMR); id. at 37 (February 11, 2004 application to the ABCMR); id. at 29 (December 17, 2004 application to the ABCMR); id. at 17, 22 (two undated applications to the ABCMR, which may be additional applications or merely supplemental pages to previously listed applications).
It is unclear from the record whether the February 15, 1989 ABCMR review was, in fact, the first consideration of a request by Plaintiff for the provision of physical disability retirement and a correction of his military records. Two letters (December 8, 2004 and December 22, 2005) from the ABCMR to Plaintiff denying any reconsideration of Plaintiff's case reference May 2, 1987 as the first date Plaintiff's case was reviewed and denied. Id. at 26, 36. However, the February 15, 1989 review is the only one evidenced in the record. Accordingly, for the purposes of this opinion, the Court adopts this later date as the date of the first review and denial of Plaintiff's requests for relief.
On January 24, 2006, Plaintiff, appearing pro se, filed a Complaint in this Court alleging numerous claims ranging from conspiracy to felony mayhem connected with the Army's denial of claim for benefits. Id. at 1-5. Plaintiff seeks compensation in the form of disability retirement payments, "military relief," "special conditions to disabled veterans," and 4.7 trillion dollars in compensatory and punitive damages. Id. at 3.
The United States may not be sued for punitive damages absent express authorization by Congress. Mo. Pac. R.R. Co. v. Ault, 256 U.S. 554, 563-65 (1921); Bank One, Tex., N.A. v. Taylor, 970 F.2d 16, 33 (5th Cir. 1992).
II. LEGAL STANDARD
Defendant has moved to dismiss all of Plaintiff's claims pursuant to Federal Rule of Civil Procedure 12(b)(1) ("Rule 12(b)(1)"). Defendant presents several arguments that it claims justify dismissal of Plaintiff's Complaint. Defendant argues (1) that Plaintiff's claims are barred by the statute of limitations; (2) that Plaintiff's monetary tort-based claims should be dismissed pursuant to the doctrine of sovereign immunity or Plaintiff's failure to exhaust administrative remedies; (3) that Plaintiff's monetary non-tort claims should be dismissed pursuant to the Tucker Act; (4) that Plaintiff's non-monetary claims should be dismissed or transferred to the United States Court of Federal Claims.
Pursuant to Rule 12(b)(1), a party may move to dismiss a case if the district court lacks "jurisdiction over the subject matter." FED. R. Civ.P.12(b)(1). A court may properly dismiss a case for lack of subject matter jurisdiction when "the court lacks the statutory or constitutional power to adjudicate the case." Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005) (internal quotation omitted). Furthermore, a court may grant a Rule 12(b)(1) motion only if "the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief." Home Builders Ass'n v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).
A court may decide a Rule 12(b)(1) motion on any of three bases: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Montez v. Dep't of Navy, 392 f.3d 147, 149 (5th Cir. 2004) (internal quotation omitted). In resolving a Rule 12(b)(1) motion, a district court may "weigh the evidence and resolve factual disputes in order to satisfy itself that it has the power to hear the case." Id.
III. ANALYSIS
"The United States, as sovereign, is immune from suit save as it consents to be sued . . ., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586 (1981). Pursuant to 28 U.S.C. § 2401, "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." 28 U.S.C. § 2401(a). This six-year statute of limitations governs the period during which the United States may waive its sovereign immunity and consent to suit. Dunn-McCampbell Royalty Interest, Inc. v. Nat'l, 112 F.3d 1283, 1287 (5th Cir. 1997). The failure of a plaintiff to sue the United States within the six-year time period "operates to deprive federal courts of jurisdiction." Id.; see also Gandy v. United States, 234 F.3d 281, 283 (5th Cir. 2000) ("If a waiver of sovereign immunity contains a limitations period, a plaintiff's failure to timely file suit deprives the court of jurisdiction.").
Plaintiff's suit clearly qualifies as a "civil action" against the United States, within the meaning of the statute. The essence of Plaintiff's numerous and varied claims is that he was "entitled to retirement and/or disability benefits when he was discharged from the U.S. Army." Def.'s Reply 7. Accordingly, Plaintiff challenges the characterization of his discharge in 1984 as well as the decisions by the ABCMR not to amend such characterization to entitle him to disability or retirement benefits. In a similar case, the Fifth Circuit held that a plaintiff's cause of action challenging the decision of the ABCMR first accrued on the date of the ABCMR decision. Geyen v. Marsh, 775 F.2d 1303, 1309 n. 6 (5th Cir. 1985). As such, Plaintiff's causes of action challenging the events surrounding his discharge and the decisions of the ABCMR accrued at the latest on February 15, 1989, the date the ABCMR first reviewed and denied Plaintiff's request for disability or retirement pay. Undoubtedly, more than six years has passed since the 1989 decision by the ABCMR. Plaintiff's failure to file suit within the six-years limitations period divests this Court of jurisdiction to hear Plaintiff's case. Accordingly, the Court need not analyze Defendant's additional arguments in support of dismissal.
A claim for money damages against a federal agency is construed as a claim against the United States. Blackmar v. Geurre, 342 U.S. 512, 514-16 (1952); see also FDIC v. Meyer, 510 U.S. 471, 484-85 (1994) (refusing to waive sovereign immunity for direct actions for damages against federal agencies).
III. CONCLUSION
Based on the foregoing analysis of facts and legal principles, the Court concludes that it does not have subject matter jurisdiction over Plaintiff's claims against Defendant.
Accordingly, IT IS ORDERED that Defendant's Motion to Dismiss Pursuant to Fed.R.Civ.Pro. 12(b)(1) is GRANTED. IT IS FURTHER ORDERED that Plaintiff's Complaint is DISMISSED. IT IS FURTHER ORDERED that all pending motions, if any, are DENIED AS MOOT.