                                   OR GINA
          Jfn tbe Wniteb ~tates Qtourt of jfeberal Qtlaims
                                        No. 17-200
                                   (Filed: July 20, 2017)               FILED
                                                                      JUL 2 0 2017
                                           )
 MARVINL. STEWART,                         )                         U.S. COURT OF
                                                                    FEDERAL CLAIMS
                                           )
                      Plaintiff,           )
                                           )
 v.                                        )
                                           )
 THE UNITED STATES,                        )
                                           )
     Defendant.                            )
~~~~~~~~~)


       Marvin L. Stewart, prose, Long Beach, CA

       Jessica Lee Cole, U.S. Department of Justice - Civil Division, Washington, DC,
for defendant.


                                        OPINION

FUTEY, Senior Judge

       Plaintiff, Marvin L. Stewart, proceeding prose, is a former service member in the

United States Coast Guard. Plaintiff alleges that the Government failed to provide him

with the requisite medical examination upon his discharge and subsequently created

fraudulent medical documents. Plaintiff filed the complaint on February 9, 2017, seeking

back pay and allowance, and ancillary expenses as a result of the alleged wrongful

discharge. Also, plaintiff seeks disability retirement and demands back pay and all

additional expenses that have been delayed due to administrative error. Before the Court


                                                            7017 1450 DODO 1346 3844
is defendant's motion to dismiss, filed on June 9, 2017, pursuant to Rule of the Court of

Federal Claims ("RCFC") 12(b)(l). Plaintiff failed to submit to the Court his response to

the motion to dismiss.

    I.      Background

            a. Factual Background

         Plaintiff enlisted in the United States Coast Guard and was serving upon the

USCGC Glacier on July 21, 1971 when there was an attempted firebombing on board.

Plaintiff was charged with the attempted firebombing on September 23, 1971 and was

kept in custody until December 6, 1971, when a general court-martial found him not

guilty. Immediately after the proceeding, he received a general discharge for reason of

unsuitability. Additionally, from September 30, 1971 to the date of his discharge, plaintiff

was on the Not Fit For Duty status and received medical treatment for a lower back injury

incurred while he was in the line of duty.

         The parties dispute whether Mr. Stewart received a medical examination for

separation prior to his discharge. A document entitled "Report of Medical Examination",

which has a physician's and a dentist's signatures, shows that on September 22, 1971,

and December 6, 1971, plaintiff received medical examinations and was found qualified

for discharge. Def.'s Mot. 2-3. Another form, "Termination of Health Record'', dated

December 6, 1971 and signed by plaintiff, stated that plaintiff agreed with the findings of

a physical examination given to him on that date and that he did not wish to make a

rebuttal statement. Id.




                                              2
       Plaintiff, on the other hand, claims that the "Report of Medical Examination" was

falsified since he was still on the journey from the Glacier to the base where he was held

in custody on September 22, 1971. Comp!. 20. Plaintiff also points to discrepancies,

omissions, and unclarities in the medical records and alleges that the signature is forged.

Comp!. 21-24. With regard to the "Termination of Health Record," plaintiff claims that

he signed it without being physically examined, in the absence oflegal counsel, and

under duress from the court-martial decision. Comp!. 10. In summary, plaintiff asserts

that he never received the medical examination for separation from the Coast Guard

during the time he was in custody and until the present day.

           b. Procedural History

       As a result of his discharge, plaintiff has brought claims several times before the

Board for Correction of Military Record ("BCMR" or "the Board"), the Court of Federal

Claims, and several United States District Courts.

       In 1976, plaintiff petitioned for correction of his military record before the BCMR.

The Board issued a final decision in 1979 and ordered, among other things, to upgrade

plaintiffs discharge to honorable by reason of expiration of his enlistment, and update

the date of discharge to September 21, 1973. Comp!. 6; Def.' s Mot. 3-4. The Board also

ordered the Coast Guard to pay plaintiff all payment and allowance owed to him as a

result of these corrections. Def.'s Mot. 4.

       On August 23, 1995, plaintiff filed a second claim before the BCMR, seeking

medical and other ancillary expenses between the previous and the updated date of

discharge. Comp!. 11; Def.'s Mot. 4. In addition, plaintiff sought permanent disability


                                              3
retirement for the lower back injury he sustained during military service and for post-

traumatic stress disorder alleged to have resulted from the Coast Guard's actions. He also

sought compensation for "malicious damages". Comp!. 11; Def.'s Mot. 4. During the

proceeding before the Board, plaintiff submitted supplemental statements and evidence to

attack the authenticity of the medical records. Comp!. 11-12.

       In 1996, the Board refused to reconsider its 1979 decision and denied the new

claims for relief, addressing the merits of each claim except the claim for damages, which

it did not reach because of its limited jurisdiction. Comp!. 13; Def.'s Mot. 4-5.

       Plaintiff subsequently requested reconsideration of the BCMR decision, providing

the Board with evidence, including abstract of service, travel order, missing dental health

record and charts of services rendered, as proof that the medical records were fraudulent.

Comp!. 13. On December 6, 1996, the request was denied.

       In 1997, plaintiff filed a complaint in the United States District Court for the

Central District Court of California - Western Division and later transferred the case to

the Court of Federal Claims. In the complaint, plaintiff alleges that the Coast Guard

wrongfully discharged him without conducting a physical examination and falsified

medical documents. Def.'s Mot. 5. Plaintiff also alleged that, as a result of these false

documents, he could not obtain veteran's benefits. Id. He argued that the 1979 and 1996

BCMR decisions were arbitrary and capricious, and sought an order reinstating him to the

Coast Guard or an award of total permanent disability retirement. Def.'s Mot. 5-6.

       On June 16, 1998, the Court of Federal Claims dismissed the complaint for lack of

jurisdiction, holding that his claim was barred by the statute of!imitations, 28 U.S.C. §


                                              4
2501 (1994). See Stewart v. United States, No. 98-424C (Fed. Cl. June 16, 1998)

("Stewart I"). Specifically, the court determined that "plaintiffs cause of action accrued

in 1979 when the Correction Board amended plaintiffs military record." Id.; DA 112-13.

The court noted that "plaintiffs motion for reconsideration did not toll the statute of

limitations" and "cannot form the basis for a new cause of action." Id.

       The Court of Appeal for the Federal Circuit affirmed the decision on January 7,

1999. Stewart v. United States, No. 98-5135, 1999 U.S. App. LEXIS 735, at *6 (Fed. Cir.

Jan. 7, 1999) ("Stewart IF'). The Federal Circuit noted that a claim for unlawful discharge

from the military service accrues on the date of discharge and thus, Stewart's cause of

action accrued in 1971. Id. at *5. The Federal Circuit did not determine whether Mr.

Stewart's 1995 claim for disability was also time-barred because the issue was not before

the court. Id. at *6.

       On May 7, 1999, plaintiff filed another complaint in the Court of Federal Claims,

alleging wrongful discharge and falsifying medical documents and seeking review of the

BCMR 1996 decision. See Stewart v. United States, No. 99-281C (May 7, 1999) (order)

("Stewart III"). The court noted that the complaint was "virtually identical" with the

complaint in Stewart Jwhich was dismissed on grounds of untimeliness. Id. Thus, the

court held that the action was barred by the operation of res judicata and because it was

untimely, and dismissed the complaint. Id.

       On December 9, 1999, the Federal Circuit affirmed the court's dismissal on the

basis of res judicata and did not proceed to address the statute of limitations issue.

Stewartv. United States, No. 99-5101, 1999 U.S. App. LEXIS 32137, at *7-8 (Fed. Cir.


                                              5
Dec. 9, 1999) ("Stewart IV"). Specifically, with regard to the argument that the Court of

Federal Claims never reviewed the portion of the Board's 1996 decision that rejected

plaintiffs new disability claim, the Federal Circuit held that review of any portion of the

BCMR's decision was barred by resjudicata. Id. at *6.

         Subsequently, plaintiff filed several complaints in different United States District

Courts. The complaints were either dismissed on the ground of res judicata and

untimeliness or, to the extent that new claims were alleged, dismissed on the merits.

Def.'s Mot. 9-10.

   II.      Discussion

            a. Standard of Review

         In deciding a motion to dismiss, the court is "obligated to assume all factual

allegations to be true and to draw all reasonable inferences in plaintiffs favor." Henke v.

United States, 60 F.3d 795, 797 (Fed. Cir. 1995). Plaintiff, as the non-moving party,

however, bears the burden of establishing jurisdiction by a preponderance of the

evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir.

1988).

         A pro se complaint is to be liberally construed, and plaintiffs' filings "must be

held to 'less stringent standards than formal pleadings drafted by lawyers[.]"' Estelle v.

Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21

(1972). Nevertheless, a litigant's prose status does not relieve him of these jurisdictional

requirements. Kelley v. Sec'y, United States Dep't ofLabor, 812 F.2d 1378, 1380 (Fed.

Cir. 1987) ("[L]eniency with respect to mere formalities should be extended to a prose


                                               6
party ... [however] a court may not similarly take a liberal view of [the] jurisdictional

requirement and set a different rule for pro se litigants only.")

           b. Issue Preclusion

       Defendant argues that the issue of whether plaintiff's wrongful discharge claim is

time-barred has already been decided in Stewart I. Defendant asserts that all four

elements of issue preclusion are met and plaintiff is collaterally estopped from alleging

that he was wrongfully discharged. Def.' s Mot. 13.

       Issue preclusion is generally appropriate if: (1) an issue is identical to one decided

in the first action; (2) the issue was actually litigated in the first action; (3) the resolution

of the issue was essential to a final judgment in the first action; and (4) the party

defending against issue preclusion had a full and fair opportunity to litigate the issue in

the first action. DaCosta v. United States, 393 F. App'x 712, 714 (Fed. Cir. 2010). The

general rule is that a jurisdictional issue cannot be revisited unless new, previously

unavailable facts can cure the original jurisdictional defects. Id., at 715.

       The issue presented to the Court is identical to the issue presented and decided in

the previous claims brought by plaintiff in this Court. In Stewart L the court was required

to, and did, decide whether the six-year statute oflimitations barred plaintiffs claim for

wrongful discharge. As a result, the court dismissed the case for lack of jurisdiction. The

decision was upheld by the Federal Circuit in Stewart II. In Stewart IIL the court, facing a

"virtually identical" complaint, dismissed the case on the ground of res judicata and

untimeliness. The Federal Circuit, in affirming the decision in Stewart IV, held that




                                                7
plaintiffs request for review of his disability claim was also barred by resjudicata since

review of the entire 1996 BCMR decision was before the court and cannot be relitigated.

1999 U.S. App. LEXIS at *7. Therefore, the issue of whether the court has subject matter

jurisdiction over plaintiffs wrongful discharge and disability retirement claim was

actually litigated and decided.

       Plaintiff also confusingly claims for back pay and all ancillary expenses that has

been delayed due to administrative error. Comp!. 31. The Court views this request as a

request for judicial review of the previously denied claims. To this extent, the issue is

exactly the same as what was decided in Stewart I, II, III and IV

       The determination oflack of jurisdiction over plaintiffs claims for wrongful

discharge, disability retirement and judicial review led the court to dismiss plaintiffs

cases. Plaintiff appealed to the Federal Circuit after each of the Court of Federal Claims

decisions. The Federal Circuit reviewed and affirmed the decisions. There is no evidence

suggesting that plaintiff was not given a full and fair opportunity to litigate the issue in

the four pervious proceedings before this Court and the Federal Circuit.

       Finally, the present complaint does not allege new facts or evidence that were not

in the previous complaints and thus, could not constitute a new cause of action. Plaintiff

fails to allege any facts after the dismissal of Stewart I and III to cure the jurisdictional

defects. See DaCosta v. United States, No. 09-558 T, 2010 U.S. Claims LEXIS 11, at* 16

(Fed. Cl. Feb. 16, 2010) ("Generally, a court's prior dismissal of an action for lack of

subject matter jurisdiction forecloses the re-litigation of the same jurisdictional issue in a

subsequent action unless the 'curable defect' exception applies."); Citizen Elecs. Co. v.


                                               8
OSRAMGmbH, No. 2006-1211, 225 F. App'x 890, 893 (Fed. Cir. 2007) ("[P]laintiff

cannot relitigate a jurisdictional dismissal by relying upon those facts that existed at the

time of the first dismissal.").

       For the foregoing reasons, the action is barred by the issue preclusion doctrine.

           c. Statute of Limitations

       Alternatively, the Government moves to dismiss the case on the grounds that

plaintiffs action is bared by the statute oflimitations. A claim brought pursuant to the

Tucker Act must be instituted within six years of the date upon which the cause of action

accrues. 28 U.S.C. § 2501 (1994). The six-year time bar requirement should be strictly

construed. Martinez v. United States, 48 Fed. Cl. 851, 857 (2001). "The start date to

begin a statute of limitations calculation for a claim against the United States is 'when all

events have occurred to fix the Government's alleged liability, entitling the claimant to

demand payment."' Lockwood v. United States, 90 Fed. Cl. 210, 215 (2008) (citing

Martinez v. United States, 333 F .3d 1295, 1303 (Fed. Cir. 2003)).

       A claim based on an alleged unlawful discharge from the military service accrues

on the date of discharge. Hurick v. Lehman, 782 F.2d 984, 986 (Fed. Cir. 1986) (internal

quotations omitted). Wrongful discharge cases are brought pursuant to the money-

mandating Military Pay Act, 37 U.S.C. § 204, under which resort to a correction board is

not mandatory, but permissive. Lockwood, 90 Fed. Cl. at 216. Therefore, the accrual date

of the statute of limitations in wrongful discharge cases is the date of the discharge. See

id.; Chambers v. United States, 417 F .3d 1218, 1224 (Fed. Cir.). "Thus, Stewart's




                                              9
challenge to his discharge is batTed because it accrued when Stewart was discharged in

1971, more than six years before he filed his lawsuit." Stewart JI, 1999 U.S. App. LEXIS

735, at *5.

          With regard to disability retirement claims, the Court of Federal Claims has no

jurisdiction over disability retirement claims until a military board evaluates a service

member's entitlement to such retirement in the first instance. Chambers, 417 F.3d at

1225. Thus, disability retirement claims generally do not start to accrue until the

appropriate military board denies the claim in a final decision, or refuses to hear the

claim. Id. at 1224. The BCMR denied plaintiffs request for disability retirement in 1996,

more than six years prior to the filing of the instant case. DA 36-37. Accordingly,

plaintiffs claim for disability retirement is barred by the statute of limitations.

   III.       Conclusion

          For the above-stated reasons, the Court lacks jurisdiction over this matter.

Defendant's motion to dismiss is GRANTED. Plaintiff's complaint is hereby dismissed.

The Clerk is directed to enter judgment accordingly. No costs.



          IT IS SO ORDERED.




                                                            i!:f±tj#;r
                                                              Senior Judge




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