KELLER v. USA, No. 1:2014cv00985 - Document 9 (Fed. Cl. 2015)
Court Description: REPORTED OPINION and ORDER granting 4 Motion to Dismiss. The Clerk is directed to enter judgment. No costs. Signed by Judge Margaret M. Sweeney. (dls) Copy to parties.
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KELLER v. USA Doc. 9 ORIG!t\|At llntW@nitt! btstts @ourt of febnsl @lsims FILED No. l4-985C (Filed: March 10,201s) ,F*+,f ,! :* * ,F ,1. : + + * r * Plaintiff, v. THE LINITED STATES, Defendant. t:*,1.1.i(***t+,$*,s*d.:f *,lq***:i++++'f I 0 2015 U'S' COURT OF FEDERAL CIAIMS t * )t * ,$ * * + * + )t * ;r + + + * ,. {. * ,F + * '! * * )t * KEITH L. KELLER, MAR Motion to Dismiss; RCFC 12(b)(1); RCFC 12(b)(6); Military PaY; Request for Reinstatement; Wrongful Discharge; Statute of Limitationsl Res Judicata; Claim Preclusion 'i( +**{:+++*** Keith L. Keller, Pine Ridge, SD, p1s se. Jessica R. Toplin, United States Department of Justice, Washington, DC, for defendant' OPINION AND ORDER t. SWDENEY, Judge PlaintiffKeith L. Keller^ M.D. contends that tlre Air Force Board for Correction of Military Records ('AFBCMR') arbitrarily and capriciously failed to recommend his reinstatement to active duty. Defendant moves to dismiss plaintiff s complaint, arguing that plaintiffs claim is baned by both the statute of limitations and the doctrine oftesjudicata. For the reasons set fofih below, the court grants defendant's motion. I. BACKGROUND Plaintiff entered the United States Air Force ("Air Force") on January 8, 1996, at the rank of rnajor.r kr both 1996 and 1997, plaintiff was considered, but not selected, for promotion to the rank of lieutenant colonel. Further, by April 1997, the Air Force had initiated procedues to I A comprehensive factual and procedural history can be found in Keller v. United St , 1 13 Fed. Cl. 779 (2013), aff d per curiam, Keller v. United States, 565 F. App'x 873 (Fed Cir. 2014). Thus, the court limits its recitation ofthe facts and procedural history to what is necessary to resolve defendant's motion. The relevant infonnation is derived from the complaint, the exhibits attached to the complaint, the exhibit attached to defendant's motion to dismiss, and the previous decisions ofthe United States Court ofFederal Claims ("Court ofFederal Claims") and the United States Court ofAppeals for the Federal Circuit ("Federal Circuit") Dockets.Justia.com substandard performance. This lattercircumstance resulted in honorable discharge from the Air Force on November 26, 1997' discharge plaintifffor plaintiffs Plaintiff challenged various aspects ofhis discharge before the AFBCMR' which ftom ultimately recommended that the Air Force change the teason for plaintiffs discharge promotion," and ,.substandard performance" to "involuntary release; non-selection, pennanent with the constructively extend plaintiffs date of separation to June 30, 1998. Dissatisfied on November 26, limited reliefprovided by the AFBCMR, tlaintiff tirnely filed suit in this court 2003. The court stayed its proceedings and remanded plaintiff s claims to the AFBCMR' plaintiff filed a new application for relief with the AFBCMR in which he claimed, among other ("sSB') things, that he should have been considered for prornotion by a Special Selection Board In ai october 12,2004 decision, the AFBCMR recornmended that plaintiffbe considered for promotion by ssBs for 1996 and 1997, and, if he was not selected for promotion by either ssB' ihat he be considered for continuation on active duty by the 1997 SSB' for 1996 and 199'l in 2005, but neither SSB selected plaintiff for promotion. However, as reflected in a March i6, 2006 letter addressed to plaintifPs in counsel, the 199? SSB selected plaintiff for continuation. The Air Force specifically advised its letter that plaintiffcould, if he was eligible, request reinstatement to active duty by submitting to an application to the AFBCMR. Not set forth in the letter were two other options available ptainiiff: agree to a continuation on active duty via constructive service or decline continuation The Air Force convened SSBs altogether. OnMay3l,2006,plaintiffscounselsenttheAFBCMRalettermemodalizinghis understanding ihat if plaintiff accepted continuation "with re-entry into active duty," he would receive back pay and allowances. Counsel also requested additional information regarding the oiplaintiff accepting continuation. Of particular note, counsel was concemed with "onr.qo"rr"", grade: plaintiff s pay Please advise me how the Air Forca intends to treat Dr. Keller's advancement in pay grade. In accordance with Air Force Instruction 36-2501, 6 March 1998, Dr' Keller would have been eligible for subsequent promotion boards, reassignment, the associated [temporary duty], schools, and training, as long as he completed before his mandatory retirement date oI Date of Active Duty Service cornrnitment Separation. As a continued officer, Dr. Keller would have had repeat opportunities for promotion to lieutenant colonel as early as November 1998 and as late as November 2001 . . . . At the conclusion ofhis letter, counsel "petition[ed] for [plaintiffs] direct promotlon to Lieutenani Colonel retroactive to November 2001, or in the altemative, [that] Dr' Kellet recetve Special Selection Boards for each ye ar alter 1997 for which he was eligible for promotion consideration." He also wrote: "Since the results of the Special Selection Boards are relevant to -2- [plaintiffs] decision on acceptance ofcontinuation, we request these boards be convened priot to his retum to active duty." a response to his letter from the Air Force on June 16' 2006 grade inquiry, the Air Force provided: With respect to counsel's pay Plaintiff s counsel received The officer Promotions Branch within the Air Force Personnel center indicates that if Dr. Keller accepted continuation, it would only be for a 3-year period, taking his date of separation (Dos) to August 2001. He would have been eligible to meit the [Calendar Year ("CY) ]98, CY99 and CY00 boards. Ifnonselected by all, he would have been considered for another 3 year continuation offer by the CY00 board and ifoffered and accepted, would have taken his DOS to 1 July 2004. He would then have been eligible to meet the CY0l, CY02 and CY03 boards. Ifnonselected, he would have been considered for another 3 year continuation offer by the CY03 board and, ifoffered and accepted, would be given an August 2007 DOS. . . . Dr. Keller could thus request relief to reflect he accepted the 3-year continuation in order . . to meet the CY98, CY99 and CY00 boards and if nonselected, [to] meet the CY00 continuation board' If selected for promotion, he could request reinstatement based on promotion. Ifnonselected, offered continuation and accepts, he'll have to do the same thing in order to meet the CY01, CY02 and CY03 boards. The Air Force did not respond to counsel's petition for plaintiffs direct promotion to the rank lieutenant colonel. Nevertheless, in a l:u/ite 22,2006 letter to the MBCMR, counsel indicated that plaintiffhad decidsd to accept continuation: of Dr. Keller accepts continuation for the 3-year period ending August 2001. He requests Special Selection Boards for CY98, CY99, and CY00 ai this time. If the CY98, CY99 or CY00 Boards do not select Dr. Keller for promotion, he will accept continuation for the 3-year period ending I July 2004 and request Special Selection Boards for CYO1, CY02, and CY03. he will ln the event he is selected for promotion to the grade of lieutenant colonel, request reinstatement based on promotion. In other words, plaintiff chose to conshuctively serve on active duty from June 30, 1998, to August 2001. It appears that upon receiving the letter from plaintiffs counsel, the AFBCMR sought the opinion of the Air Force Personnel Center regarding the final correction ofplaintiffs records. In a July 5,2006letter, the Air Force Personnel Center recommended: -3- Based on the applicant's acceptance ofcontinuation . ' ' , his record should be BasedonthisDOS, corected to reflect a date ofseparation (DOS) of3l Jul he is now eligible to meet the CY98A, CY99A and CY00A Lreutenant Colonel MC Central Selection Boards. Ifnonselected for promotion by these boards, he 0l would again be considered for continuation by the CY00A Major Contimiation Board and if selected he would be offered a DOS of 30 Jun 04. If the applicant accepted continuation, he would be eligible to meet the CY01A, CY02A and CYOIA Lieutenant Colonel MC Selection Boards lf nonselected for promotion by these boards, he would again be considered for continuation by the CY03A Major Continuation Board and if selected he would be offered a DOS of 31 July 07. Based on this DOS, he would be eligible to meet the CY04A, CY05A and CY06A Lieutenant Colonel Selection Boards. . lnsufficient relevant evidence has been presented to demonstrate the existence ofprobable error or injustice in regard to the applicant's request for direct promotion to the grade of lieutenant colonel. . . ' .., We do not concur with retuming the applicant to active duty with a DOS of31 Jul 07. Although we can assume the applicant would have been selected for continuation and would have accepted, he would no longer be entitled to meet SSBs for the promotion board he could have eligible for as continuation is based on nonseleciion for promotion. Therefore, we recommend [the] applicant be scheduled for all applicable ptomotion boards and ifnonselected, meet all continuation boards he would have been eligible for. If the applicant is either promoted or desires to accept continuation to a date in the fuiure, [the] applicant should be given the opporhrnity to apply to retum to active duty' ... . In a July 19,2006 decision, the AFBCMR agreed with the Air Force Personnel Center's recommendations and adopted its rationale as the basis for its decision that because plaintiff was the victim of an error or injustice, his records should be corrected to reflect a separation date of July 31, 2001. Nine days later, plaintiff s counsel sent the AFBCMR a letter in which he objected to the AFBCMR's adoption of the Air Force Personnel Center's recommendations First, counsel noted that the AFBCMR adopted the recommendations without first soliciting comment from plaintiff. second, counsel noted his understanding that contrary to the position taken by ihe Air Force Personnel Center, plaintiff would not have been obligated to be considered by continuation boards in 2000 and 2003 to remain on aetive duty; rather, it was his understanding, based on previous communications with the Air Force, that plaintiff would continue on active duty ,'unconditionally until he is either retired, ol is promoted to the grade oflieutenant colonel." counsel therefore requested that the AFBCMR amend its recommendation to reflect that plaintiffs records should include a specific notation that plaintiffs continuation on active duty would be unconditional. The AFBCMR responded to plaintilfs counsel's letter on August 15, i 2006, remarking that because plaintiffs acceptance ofcontinuation "set into motion the followon SSB continuation and promotion process," counsel's request was plemature. The AFBCMR reiterated this sentiment in an October 17 ,2006letter to counsel. Proceedings before the Court of Federal Claims remained stayed while the Air Force calculated, and then paid, the back pay and allowances owed to plaintiffas a result ofhis continuation on active duty via constructive service. After receiving paynent, plaintiff filed an amended complaint, and the court lifted the stay. However, on December 2 i , 2009, plaintiff submitted another application to the AFBCMR, challenging various aspects ofthe process by which the Air Force conducted the 1998, 1999, and2000 SSBs. As a result, the court once again stayed proceedings to allow the AFBCMR to consider plaintiffs claims. In an Apil 10,2012 decision, the AIBCMR rejected plaintiffs claims in their entirety. ln reaching its decision, the AFBCMR made the following three statements relevant to the instant lawsuit: (1) "[Plaintiff] was offered the oppoftJnity to apply for reinstatement, but instead determined to accept continuation in order to proceed with further SSBs." (2) "[Plaintiffl was offered an opporhrnity to request reinstatement to active duty, but instead elected continuation and fudher SSB consideration." (3)'[Plaintiffl made a deliberate decision to choose continuation and further SSB consideration over reinstatement . . . ." Plaintiff filed a second amended complaint on October 1, 2012, reiterating his objections to the process by which the 1998, 1999, and 2000 SSBs were conducted, and contending that the AFBCMR's approval ofthat process was arbitrary capricious, contrary to law, or unsupported by substantial evidsnce. He requested that the court set aside the AFBCMR's decision, compel the Air Force to correct his record to reflect that he received promotions fiom the rank oflieutenant colonel through the rank of general, compel the Air Force to correct his record to reflect that he was reinstated and credit him with back pay and allowances, award him attomey's fees and costs, and grant him any other relief deemed just and proper. Il response to the second amended complaint, defendant filed a motion to dismiss and the parties filed cross-motions for judgrnent on the adninistrative record. In a December 6, 2013 decision, the Court ofFederal Claims granted defendant's motion to dismiss, holding that plaintiff s request for an order directing the Air Force to promote him through the rank of general failed to state a claim upon which it could grant reliefl Then, with respect to the cross-motions for judgnent on the administrative record, the court granted defendant's motion and denied plaintiff s cross-motion, concluding that the AFBCMR's decision upholding the process by which the 1998, 1999, and 2000 SSBs were conducted was not arbitrary capricious, contrary to law, or unsupported by substantial evidence. Based on these rulings, the court disrnissed plaintiff s second amended complaint with prejudice and directed the entry ofjudgment in defendant's favor. On the same day that the Court ofFederal Claims dismissed his second amended complaint, plaintiff filed an application with the AIBCMR requesting that he be reinstated to active dufy with a Jdy 3l ,2016 separation date, arguing that he had been improperly "denied [a] reium to active duty with a lseparation date] of 3 I Jul 07 " He claimed that he discovered the Ai.Fo...',allegedenoronMarchl6,2006,whenthelggTSsBselectedhimforcontinuation' to be a request for On f"Uruury zz]2014, the AFBCMR deemed plaintiff s application to suppolt it with new, reconsidefation and then denied the request due to plaintiffs failure day ln his letter, he relevant evidence. Plaintiff responded to the AFBCMR that sarne and *rut his application should not have been tfeated as a request for reconsideration, "on,*a"aifsuch a ciraracterization was proper, he provided the required evidence, stating: that even .{Tlhe AFBCMR itselfprovided new relevalt evidence . . . when it declared . . . an unchanging " The AFBCMR Ulii"ittrut 1.. Keller was elieible for reinstatement to active[ ]duty in 2006 it advanced in its February responded to plaintiffon lr4arcn ts, zot+, reiterating the position that 27 , 2014 letter. In the meantime, plaintiff, proceeding pro se, appealed the Courl ofFederal Claims' s primaty contentton dismissal of his second amended complaint to the Federal Circuit. Plaintiff offact in its on appeal was that the coult ofFederal claims made an erroneous statement for continuation by the December 6, 2013 decision when it remarked that plaintiffs selection for reinstatement to 1gg7 SSB piovided plaintiffwith three mutually exclusive options: appllng or rejecting active duty, acceptlng contmuation on active duty via constructive sewice, implied that he had the continuation altogether. According to plaintiff, the court's statement ri/as to conhnue on choice to immediately retum to active duty when, in fact, his only option prejudicial to active duty constructively. This purported factual enor, plaintiff contended, was the court him because it had negative consequences on many ofhis arguments before circuit rejected plaintiffs contention. First, it held selected for that there was no clear eror in the Court of Federal Claims' finding that upon being it continuation, plaintiff had the option of seeking reinstatsment to active duty. second, harmless because the concluded thai even if it had fognd clear error, the error would have been court ofFederal clairns did not rely on the puryofiedly eraoneous finding in dismissing plaintiffs second amended complaint. Finally, the Federal circuit noted that plaintiff did not Accordingly, the request a remedy for the alleged error that was within its authority to plovide Federal Circuit affrrmed the decision of the Court of Federal Claims' ln a May 8, 2014 ruling, the Federal Plaintiff, continuing to proceed pro se, filed his cunent lawsuit on october 14, 2014' kr and his complaint, plaintiff argues that the AFBCMR's July 19, 2006 decision was arbitrary recommendationscapncious because the AFBCMR adopted the Air Force Personnel Center's colonel and rejecting a separation date denying him a direct promotion to the rank of lieutenant According of J;ly-31, 2007-rathir than finding that plaintiff should be reinstated to active duty. it had to plaintiff, the AFBCMR should have directed his reinstatement to active duty because Indeed, plaintiff asserts, the previously determined that plaintiff was eligible for reinstatement. AFBCMR revealed for the first time in its April 10,2012 decision that it had always understood remedy the that plaintiff was eligible for an unconditional continuation on active duty. To ,q.petN4n's alleged-error, plaintiff requests that the court set aside the AFBCMR's April 10, to reflect 2012, andMarci 18, 2014 decisions; compel the Air Force to correct his record -6- constfuctive reinstatement to active duty from August l, 2001, until his actual reinstatement to active clitty or placement in retiremeni status; and compel the Air Force to cledit him with all required back pay and allowances. On December 15,2014, defendant moved to disrniss plaintiffs complaint pursuant to 12(b) of the Rules of the United States Court of Federal Claims ("RCFC"). Briefing is Rule complete and, because oral argurnent unnecessary the court is prepared to rule. II, DISCUSSION A. Standard of Review Defendant moves to dismiss plaintiff s complaint pursuant to RCFC 12(bXl) for lack of jurisdiction and pursuant to RCFC 12(bX6) for failure to state a clain upon which the court could grant relief. In ruling on a motion to dismiss, the court assumes that the allegations in the complaint are true and construes those allegations in the plaintiff s favor. U9gk9J:-Unri!g! States, 60 F.3d 795,797 (Fed. Cir. 1995). With respect to RCFC l2(b)(l) motions, the plaintiff bears the burden ofproving, by a preponderance of the evidence, that the court possesses subject matter jurisdiction. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Revnolds v. Army & Air Force Exch. Serv. ,846 F.2d746,748 (Fed. Cir. 1988). Although complaints filed by plaintiffs proceeding pro se are held to "less stringent standards than formal pleadings drafted by lawyers," Haines v. Kemer,404 U.S. 519,520-21 (1972), a plaintiff proceeding pro se is not excused from meeting basic jurisdictional requirements, Henke, 60 F.3d at 799. Ifthe court finds that it lacks subject matter jurisdiction over a claim, RCFC 12(hX3) requires the court to dismiss that claim. A claim that survives a jurisdictional challenge remains subject to dismissal under RCFC 12(b)(6) if it does not provide a basis for the court to grant relief. Lindsay v. United States, 295 F .3d 1252, 1257 (Fed. Cir. 2002) ("A motion to dismiss . . . for failure to state a claim upon which relief can be granted is appropriate when the facts asserted bythe claimant do not entitle him to a legal remedy.'). To survive a motion to dismiss under RCFC 12(bX6), a plaintiffmust include in its coinplaint "enough facts to state a claim to reliefthat is plausible on its face." Bell Atl. Com. v. Twomblv, 550 U.S. 544, 570 (2007). In other words, a plaintiff must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. iqbal, 556 U.S. 662,678 (2009) (citing Bell Atl. Com., 550 U.S. at 556). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Com.. 550 U.S. at 563. Indeed, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes , 416 U.5. 232, 236 (1974), Sygnu&d-gl1-Ajhgr-gg4 Harlow v. Fitzserald,457 U.S. 800, 814-19 (1982). -7- B'TheCourtLacksJurisdictiontoEntertainPlaintiffsComplaint is baned by the In iis rnotion to dismrss, defendant first argues that plaintiffs complaint statuteoflimitations.Tofallwithinthecourt'sjurisdiction,claimsagainsttheUnitedStates. " 28 U S C $ 2501 (2012); se9 also must be "filed within six years after such claim hrst accrues (2008) (providing that the iohn R. Sand & Gravel Co. v. United States,55? U S: 130, 133-35 is an "absolute" limit on the ability of the court @01 within the meaning of of Federal |laims to reaoh the merits of a claim). "A claim first accrues fix the liability ofthe the statute of limitations when all the events have occuned which Park Estates-F?irfield Dgy' Govemment and entitle the claimant to institute an aciion." Brown quotation marks omitted) co. v. united States , 127 F .3d 1449, 1455 (Fecl. Cir. 1 997) (intemal hlTltlit"'ydt*'*'c.cases,thegovemment'sliabilityisfixedandaplaintif|sentit]ementtosue (Fed. Cir. ,ip"nr, on th" dut"-of discharge.- Martinez v. united states, 333 F.3d 1295,1103-04 2003) (en banc). argues that becausc The parties dispute the accrual date of plaintifls claim. Defendant pay and allowalces plaintiff s request for ieinstatement to active duty and the resulting back on the date of his constitutes riief for a claim of wrongful discharge, plaintifPs claim accrued plainiifr, on the other hand, characterizes his claim as one for separation from the Air Force. yet accrued because his reinstatement to active duty, and contends that his claim has not are sevetal eligibility for reinstaternent has never been explicitly stated by the AiI Force. There flaws with plaintiff s Position is First, plaintiffs position is setf-defeating; if plaintiffs characterization ofhis claim be ripe for accurate and his claim has not yet accrued, then plaintifPs claim would not AFic. Prods. co.,473 U.S.568' 580a judication by this court. ses Thornas v. union calbidp fuh'e Si(fSSS) (noting that a claim is not ripJ for judicial review when it is contingent upon court is not aware of, events that may or may not occur). Seiond, plaintiff has not cited, and the was not heated as a remedy_for any case law in which a request for reinstatement to active duty duty wiongful discharge. To the contrary, former setwice members seek reinstatement to active Carmich?ql v. when"they believJ that their discharge from the military was unlawful. See. e.9., States, 851 29United Siates, 298 F.3d t367 , 1370-71 (Fed. Cir. 2002); Cometta v. United ,I wTw-c F"a. cir. 1988) (en banc); Klineenschmitt v. United States, I l9 Fed..CI. 163, 180 (2014). Thi;d, the fact that plaintiff requests back pay and allowances dating back to his plaintiff believes that his consnuctive siparation from the Air Foice supports the proposition that for reinstatement to discharge was i-prop".. In sum, the court concludes that plaintifls request as relief for a active duty and associated back pay and allowances is properly characterized on the date of his wrongful iischarge claim, and thai plaintiff s wrongful discharge claim accrued separation from the Air Force _ Theonlyissuethatremains,then,iswhetherplaintiffswrongfuldischargeclaimaccrued the within the six-year statute of limitations. In defendant's view, plaintiff s claim accrued on it can also be date of his initial, actual separation from the Air Force-November 26, 1997. -8- on the date ofhis constructive separation from the Air 31, 2001. In eiiher case, plaintiffls clairn wouldbe time-baned because he did not Force-July file his cornplaint until October 14,2}14,well more than six years later''? Accordingly, the court must dismiss plaintiff s complaint for lack ofjurisdiction argued that plaintiffs claim accrued C. Plaintiff Has Failed to State a Claim Upon Which the Court Could Grant Relief ifplainfiffs claim for wrongful discharge was not time-barred, argues defendant, his claim would be baned by the doctrine of res judicata. Res judicata, as the tetm is commonly used, encompasses the related concepts of claim preclusion and issue preclusion. Tavlor v. Sturgell, 553 U.S. 880, 892 (2008); Misra v. waren City Sch. Dist. Bd. of Edus.,465 U.S. 75, 77 n.1 (1984). "Claim preclusion refers to the effect ofajudgnent in foreclosing litigation ofa matter that never has been litigated, because ofa determination that it should have been advanced in an earlier suit. Claim preclusion therefore encompasses the law of merger and bar." Miga, 465 U.S. at77 n.l. In contrast, "[i]ssue preclusion refers to the effect of ajudgment in foreclosing relitigation of a matter that has been litigated and decided. This effect also is refemed to as direct or collateral estoppel." Id. (citation omitted). "By 'preclud[ing] parties from contesting matters that they have had a full and fair opporhmity to litigate,' these two doctrines protect against 'the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foste[rl reliance on judicial action by minimizing the possibility ofinconsistent decisions."' Tavlor,553 U.S. at 892 (quoting Montana v. United States,440 U.S. 147,153-54 Even (1979). In this case, defendant invokes the doctrine of claim preclusion. "Claim preclusion applies when '(l) the parties are identical or in privity (2) the first suit ploceeded to a final judgment on the merits; and (3) the second claim is based on the same set of transactional facts as the first. "' Phillips/lr4av Com. v. United States , 524 F.3d 1264, 1268 (Fed. Cir. 2008) (quoting Amrnex. Inc. v. United States, 334 F.3d 1052, 1055 (Fed. Cir. 2003)); see also Nevada v. United States, 463 U.S. 1 10, 129-30 (1983) ("[T]he doctrine of res iudicata provides that when a final judgnent has been entered on the merits of a case, '[i]t is a finality as to the claim or demand in controversy, concluding parlies and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose."' (quoting Cromwell v. Cntv, of Sac, 94 U.S. 351, 352 (1876))); Do-Well Mach. Shop, Inc. v. United States, 870 F.2d 2 To the extent that plaintiff contends that his wrongful discharge claim accrued on July 19, 2006-the date that the AFBCMR recommended that his records be conected to show a continuation on active duty via constructive service rather than a reinstatement to active dutfhe is inconect. For one, "a plaintiff s invocation of a pennissive administrative remedy," such as seeking relieffrom a military correction board, "does not prevent the accrual of the plaintiff s cause ofaction, nor does it toll the statute of lirnitations pending the exhaustion ofthat administrative remedy." Martinez,333 F.3d at 1304. In addition, the AFBCMR issued its decision more than six years before plainfiff filed his complaint. -9- carries res jg!!94q9 Ged. Cir. 1989) (noting that while a "dismissal on the merits effect," a "dismissal for want ofjurisdiction does not")' 637 . 640 the parties in the There can be no dispute that the parties in this case are identical to resulted in a judgment on the merits. lawsuit filed by plaintiff in 2003, or that the 2003 lawsuit claim "is based on the same Thus, the only question to be resolved is whether plaintiff s current question of set oi transaciional facts" as the claims he raised in his earlier lawsuit. "ff]he 'to be determined pragmatically, whether two claims involve the same set of fansactional facts is origin, or giving weight to such considerations as whether the facts are related in time, space, their treatrnent as a unit irotir,-ation, whettrer they form a convenient trial unit, and whether Phillips,Mav Com'' confonns to the parties' expectations or business understanding or usage."' (1982)); see also AmTex, 524F.3d at 127 i (quoting Restatement (second) Judgrnents $ 24(2) 'core of Inc., 334 F.3d at 1056 (n;ting that "courls have defined 'transaction' in tetms ofa facts,' and 'based operative facts,' the 'sarne operative facts,' or the 'sarne nucleus of operative on the same, or nearly the same factual allegations"')' from the Atr In his current complaint, plaintiff alleges that he was improperly separated decision, should not have Force, contending in partiiular that the AFBCMR, in its July 19,2006 view that plaintiff adopted the ,"com-endation ofthe Air Force Personnel Center over its own reinstatement to active duty and was eligible for reinstatement to active duty. He therefore seeks in the the resrilting back pay and allowances. In the second amended complaint that he filed to 2003 lawsuit, plaintiff alleged that he was improperly separated from the Air Force due 1998, 1999, and 2000 SSBs, deficiencies in th" p.or"rr by which the Air Force conducted the to cure those and that the AIBCMn, in its April 10, 2012 decision, refused to correct his records to active duty and the He therefore sought, among other relief, reinstatement deficiencies. resulting back pay and allowances' The allegations in both the current complaint, filed on octobet 14,2014, and the second arnended cornplaint from the 2003 case, hled on october 1, 2012, ale drawn from the same initial factual circumstances: plaintiff s separation from the Air Force in 1997; the AFBCMR's failure to grant plaintiff any reliefbeyond conecting the date of, and reason for, his separation for from the,{ir Foice; the AFBCMR's subsequent recommendation that plaintiff be considered promotion by the 1996 and 1997 SSBs; rhe 1997 SSB's selection of plaintiff for continuation and the conespondence suggestion that plaintiff may be able to apply for reinstatement to active duty; for continuing on beiieen plaintiifs counsel and the AFBCMR regarding plaintiffs options active duiy; plaintiff s decision to request continuation on active duty via constructive sewice; the the ApSiMR's July 19, 2006 decision memorializing plaintiffs choice and adopting promotion by recommendations ofthe Air Force Personnel Center that plaintiffbe considered for the 1998, 1999, and 2000 sSBs, not be directly promoted to the rank of lieutenant colonel, and not be reinstated to active duty with a separation date ofJuly 31,2007; the objections raised by plaintiff s counsel to the AFBCMR',s decision and the AFBCMR',s responses to those objections; plaintiffs nonselection for promotion or continuation by the 1998, 1999, and 2000 ssBs, leading to a constructive separation date of July 31,2001; plaintiff s challenge to the process by which -t0- the three most recent ssBs were conducted; and the rejection ofplaintiffs challenge by the AFBCMR on Apil 10,2012. Further, in both this case and the 2003 case, the reliefrequested by plaintiff is the same: reinstatement to active duty and the associated back pay and allowances' And, in its decision affrrming the ruling of the court of Federal claims in the 2003 case, the Federal Circuit specifically addressed whether plaintiff had the opportunity to apply for reinstatement to active duty after he was selected for continuation. In sum, plaintiffs current claim for wrongful discharge is based on the same transactional facts upon which he based the claims that he articulated in the second amended complaint filed in the 2003 case. Thus, all three elements ofclaim preclusion are satisfied. Accordingly, even if plaintiff s complaint was timely filed, it would have been barred by the doctrine of res judicata. III. CONCLUSION As set forth above, because plaintifPs claim for wrongful discharge is baned by the statute of limitations, the court GRANTS defendant's motion to dismiss and DISMISSES plaintiffs complaint for lack ofjurisdiction. No costs. The clerk is directed to enter judgrnent accordingly. IT IS SO ORDERED. -11-
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