       In the United States Court of Federal Claims
                                        No. 17-540C

                                 (Filed: November 6, 2017)

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                                    *
RUDY SAMUEL MELSON,                 *             Motion to Dismiss, RCFC 12(b)(1);
                                    *             Lack of Jurisdiction; Statute of
                    Plaintiff,      *             Limitations; Motion to Dismiss,
                                    *             RCFC 12(b)(6); Failure to State a
v.                                  *             Claim;      Wrongful      Discharge;
                                    *             Continuing Claim Doctrine; Review
THE UNITED STATES,                  *             of Military Records; Judicial Review
                                    *             of Army Board for Correction of
                    Defendant.      *             Military Records Decision
                                    *
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Mark A. Crawford, The Crawford Law Firm, PC, Floral Park, New York, for Plaintiff.
Igor Helman, with whom were Chad A. Readler, Acting Assistant Attorney General,
Robert E. Kirschman, Jr., Director, L. Misha Preheim, Assistant Director, Commercial
Litigation Branch, Civil Division, Department of Justice, Washington, D.C., and Daniel
Mazzone, U.S. Army Legal Services Agency, for Defendant.


         OPINION AND ORDER ON DEFENDANT’S MOTION TO DISMISS
WHEELER, Judge.
       Plaintiff, Rudy Samuel Melson, commenced this action on April 17, 2017 seeking
correction of his military discharge from the United States Army Reserve. Broadly
construing his complaint, Mr. Melson also alleges that a hostile work environment caused
him to suffer physical ailments. The Government has moved to dismiss the complaint for
lack of jurisdiction, or in the alternative, for failure to state a claim upon which relief can
be granted, pursuant to Rules 12(b)(1) and 12(b)(6) of the Court’s rules. For the reasons
explained below, the Government’s motion to dismiss is GRANTED.
                                   Factual Background
       Mr. Melson entered the United States Army Reserve as a Private First Class in
September 2002. Compl. ¶ 5. While pursuing higher education, Mr. Melson participated
in the Senior Commissioned Officer Student Training and Extern Program. Id. ¶ 12.
Through that program, Mr. Melson began his active duty service obligations on May 27,
2008 as a Health Services Officer Trainee with the Federal Bureau of Prisons at the Federal
Correctional Institution in Otisville, New York. Id. ¶ 13. Shortly thereafter, Mr. Melson
learned that his father in California needed his assistance, so Mr. Melson requested a
transfer of his service to California. Id. ¶ 14-15. On June 30, 2008, the Army denied his
request, but informed Mr. Melson that he could transfer if he individually found an agency
in California that would take him. Id. ¶ 16. Then, Mr. Melson was on extended medical
leave for surgery and hospitalization during August and early September 2008. Id. ¶ 24.
       When he returned from medical leave, Mr. Melson’s working conditions at the
corrections facility worsened rapidly. On September 16, 2008, a supervisor informed Mr.
Melson that his duties were being changed, and he later reviewed an allegedly adverse
Commissioned Officer Effectiveness Report on October 3, 2008. Id. ¶ 30-31. He
submitted a rebuttal to this review on October 5, 2008, but the next day an officer at the
Federal Bureau of Prisons ordered him to change his rebuttal. Id. ¶ 34, 36. Then, on
November 5, 2008, Mr. Melson received word that he was being involuntarily separated,
but on November 18, 2008, a warden at the Otisville facility told Mr. Melson that he was
being suspended with pay. Id. ¶ 40-41. Mr. Melson alleged in the complaint that on
November 25, 2008, the day after his suspension was to take effect, he “was forced to
resign in lieu of voluntary separation.” Id. ¶ 42.
        At some unspecified time, Mr. Melson emailed a wrongful termination complaint
to the Department of Health and Human Services Office of the Inspector General. See id.
¶ 48. On April 7, 2009, that office notified Mr. Melson that they would forward his
complaint to the Equal Employment Opportunity Commission (“EEOC”). Id. On May 13,
2009, the EEOC informed Mr. Melson that it was not the appropriate office to file his
complaint. Id. ¶ 49. Finally, on December 3, 2009, the Department of Health and Human
Services Equal Employment Opportunity Office (“EEO”) told Mr. Melson that he could
file his grievance with that office, and he did so the following day. Id. ¶ 50-51. But, on
January 26, 2010, the EEO dismissed Mr. Melson’s complaint for failure to timely file. Id.
¶ 53. The EEO denied his appeal to that dismissal. Id. ¶ 55.
      From August 2009 through the end of 2010, Mr. Melson pursued mediation, but the
mediation concluded with no resolution. Id. ¶¶ 57-59. At some unstipulated time, Mr.
Melson also brought his claims before the Army Board for Correction of Military Records
(“ABCMR”) and the Board for the Correction of Public Health Service Commissioned
Corps Records (“BCPHSCCR”). Id. ¶ 65.
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       In count one of the complaint, Mr. Melson alleges the ABCMR failed to find that
Mr. Melson suffered from a medical condition, which was “unequivocally due to
aggravation proximately caused by Basic Combat Training and additional ROTC training
thereafter, which qualified him for medical separation with severance pay,” see Compl. ¶
66, but the complaint does not otherwise mention any combat experience or ROTC training
to support such a claim. The ABCMR apparently determined that there was not enough
evidence “to substantiate Mr. Melson’s injury was service-related or in line of duty.” Id. ¶
67. Mr. Melson asks the Court to correct that determination, characterizing it as
“misinformed” and “erroneous.” Id. ¶¶ 68, 73.
        In count two, Mr. Melson requests the Court to “conduct de novo reviews of all
ABCMR and BCPHSCCR decisions,” Compl. ¶ 106, as well as amend the documented
reason for Mr. Melson’s discharge, amend the description of his service in his discharge,
expunge the wrongful termination action and all adverse documentation in his personnel
file, order payment of retroactive retirement pension, and award punitive damages and
travel costs.
                                    Standard of Review
       The Tucker Act, 28 U.S.C. § 1491(a)(1), gives this Court authority to adjudicate
“any claim against the United States founded either upon the Constitution, or any Act of
Congress or any regulation of an 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.”
        “Subject matter jurisdiction must be established before the Court may proceed to
the merits of any action.” BearingPoint, Inc. v. United States, 77 Fed. Cl. 189, 193 (2007)
(citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89 (1998)). “The party
asserting the Court’s jurisdiction bears the burden of proof on jurisdictional issues.” Id.
(citation omitted). When determining whether Plaintiff has satisfied this burden, the Court
looks “beyond the pleadings and ‘inquire[s] into jurisdictional facts’ in order to determine
whether jurisdiction exists.” Lechliter v. United States, 70 Fed. Cl. 536, 543 (2006)
(quoting Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir. 1991)).
        Under Rule 12(b)(1), the Court will dismiss a complaint if it lacks jurisdiction over
the subject matter. When considering a Rule 12(b)(1) motion, the Court accepts as true the
undisputed allegations in the complaint, and draws all reasonable inferences in favor of the
plaintiff. Hamlet v. United States, 873 F.2d 1414, 1416 (Fed. Cir. 1989), abrogated on
other grounds by, Harlow v. Fitzgerald, 457 U.S. 800 (1982), (citing Scheuer v. Rhodes,
416 U.S. 232, 236 (1974)).
      When considering a motion to dismiss for failure to state a claim upon which relief
may be granted under RCFC 12(b)(6), the Court “must accept as true all of the allegations
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in the complaint, . . . and [the Court] must indulge all reasonable inferences in favor of the
non-movant.” Laudes Corp. v. United States, 86 Fed. Cl. 152, 160 (2009) (citing Sommers
Oil Co. v. United States, 241 F.3d 1375, 1378 (Fed. Cir. 2001)). To state a claim, the
plaintiff must allege facts “plausibly suggesting (not merely consistent with)” a showing
of entitlement to relief. Cary v. United States, 552 F.3d 1373, 1376 (Fed. Cir. 2009); see
also Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). The factual allegations must be
“enough to raise a right to relief above the speculative level on the assumption that all of
the complaint’s allegations are true.” Bell Atl. Corp., 550 U.S. at 555. Plaintiff need not
set out in detail the facts upon which the claims are based; however, there must be enough
facts to state “a claim to relief that is plausible on its face.” Cary, 552 F.3d at 1376. A
complaint will therefore only be dismissed pursuant to Rule 12(b)(6) “when the facts
asserted by the claimant do not entitle him to a legal remedy.” Laudes Corp., 86 Fed. Cl.
at 160 (citing Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002)); see also
Morse Diesel Int’l, Inc. v. United States, 66 Fed. Cl. 788, 797 (2005) (noting that dismissal
is only proper where a plaintiff can “prove no set of facts in support of his claim which
would entitle him to relief”).
                                         Discussion
        The Government requests the Court to dismiss the complaint for lack of subject
matter jurisdiction, arguing primarily that Mr. Melson’s claims are outside of the six-year
statute of limitations. Def.’s Mot. Dismiss 6-8 (“Mot. Dismiss”). The Government also
argues that to the extent count two of the complaint alleges that Mr. Melson’s involuntary
separation was caused by discrimination and a hostile work environment, those types of
claims do not fall within this Court’s jurisdiction. Id. at 8-9.
       In the alternative, the Government argues, count two should be dismissed for failure
to state a claim upon which relief can be granted because it merely states conclusory
allegations of a hostile work environment and discrimination. Id. at 9-10. Even if this
Court had the jurisdiction to hear such claims, the allegations in the complaint would not
be enough to support a claim for which the Court could grant relief. Id.
       In opposition to the Government’s motion to dismiss, Mr. Melson argues that
because “[t]he acts and or omissions giving rise to this action are alleged by Plaintiff to
have occurred on or about and between September 16, 2008 through on or about March 22,
2016,” with the claim accruing on March 22, 2016, his claims are within the six-year statute
of limitations. Pl.’s Affirmation in Opp’n to Def.’s Mot. Dismiss ¶¶ 6-7 (“Pl.’s Opp’n”).
By analogizing to Indian breach of trust claims, Mr. Melson asserts conclusory statements
that the statute of limitations accrued at the time the Department of Health and Human
Services issued its decision on March 22, 2016. Mr. Melson fails to provide further
elaboration in support of those conclusory statements, or explain why Indian breach of trust
claims are analogous here. Moreover, in response to the Government’s assertions that Mr.
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Melson’s claims are time-barred, Mr. Melson states “any delays from 2008 to March 22,
2016 are attributable to the acts and or omissions by the Department and therefore the
burden does not lie at the Plaintiff’s table.” Id. ¶ 24. Mr. Melson then argues that the
“continuing claim doctrine” should apply to his case, but, aside from making another
conclusory statement, does not explain why. Id. ¶¶ 25-26, 31.
   A. Mr. Melson’s Claims are Untimely.
        Under 28 U.S.C. § 2501, “[e]very claim of which the United States Court of Federal
Claims has jurisdiction shall be barred unless the petition thereon is filed within six years
after such claim first accrues.” “A claim first accrues when all the events have occurred
that fix the alleged liability of the government and entitle the claimant to institute an
action.” Ingrum v. United States, 560 F.3d 1311, 1314 (Fed. Cir. 2009). This statute of
limitations is jurisdictional. John R. Sand & Gravel Co. v. United States, 552 U.S. 130
(2008).
        Mr. Melson argues that because his claim is based on an “erroneous decision” that
the Department of Health and Human Services issued on March 22, 2016, he had six years
from that date to bring this case. The case law, however, squarely opposes such an
argument that a wrongful discharge claim accrues upon an administrative board’s decision.
“This court and the Court of Claims have frequently addressed and rejected the argument
that the cause of action for unlawful discharge does not accrue until the service member
seeks relief from a correction board and the correction board enters a final decision denying
relief.” Martinez v. United States, 333 F.3d 1295, 1304 (Fed. Cir. 2003) (en banc)
(citations omitted). After citing to a series of cases supporting such a conclusion, the
Martinez court explains that “since their creation, the correction boards have been regarded
as a permissive administrative remedy and that an application to a correction board is
therefore not a mandatory prerequisite to filing a Tucker Act suit . . . .” Id. It then follows
that, here, Mr. Melson’s seeking administrative relief did not prevent the statute of
limitations tolling.
       As a defense to the statute of limitations, Mr. Melson seeks to benefit from the
“continuing claim doctrine” by asserting that he “has laid out clearly and concisely a series
of events that collectively, resulted in the causes of actions now being pursued.” Pl.’s
Opp’n ¶ 25, 28-31. The Court finds this argument unpersuasive. “In order for the
continuing claim doctrine to apply, the plaintiff’s claim must be inherently susceptible to
being broken down into a series of independent and distinct events or wrongs, each having
its own associate damages . . . .” Wells v. United States, 420 F.3d 1343, 1345 (Fed. Cir.
2005) (quoting Brown Park Estates-Fairfield Dev. Co. v. United States, 127 F.3d 1449,
1456 (Fed. Cir. 1997)). The Federal Circuit and its predecessor courts have applied the
continuing claim doctrine to situations “where the payments are to be made periodically,
each successive failure to make proper payment gives rise to a new claim upon which suit
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can be brought.” Friedman v. United States, 310 F.2d 381, 385 (Ct. Cl. 1962); see also,
e.g., Batten v. United States, 597 F.2d 1385, 1387 n.10 (Ct. Cl. 1979). “On the other hand,
if there was only a single alleged wrong, even though the wrong caused later adverse
effects, our case law has said the continuing claim doctrine is not applicable.” Wells, 420
F.3d at 1345-46. If Mr. Melson wishes to point to the discharges and the board’s
subsequent dismissal of his wrongful discharge complaint, these stem from a single alleged
wrong. Therefore, the continuing claim doctrine cannot apply.
        Mr. Melson’s discharge claims are untimely because they accrued more than six
years prior to the filing date, and they do not fit within the continuing claim doctrine
framework. Mr. Melson was discharged from the Army Reserve on October 3, 2005,
Compl. ¶ 6, and separated from the U.S. Public Health Service Commissioned Corps on
November 25, 2008, id. ¶ 42. The fact that he sought administrative relief does not shield
his claims from the statute of limitations. For these reasons, Mr. Melson’s claims are time-
barred and must be dismissed.
   B. Mr. Melson’s Count Two Claims Fall Outside of This Court’s Limited
      Jurisdiction.
        Even if Mr. Melson’s claims had been timely filed, count two of his complaint
contains no allegations that would entitle him to relief in this Court of limited jurisdiction.
To the extent that he claims he suffered emotional distress from involuntary separation,
Compl. ¶ 101, and that he was placed in a discriminatory and hostile work environment,
id. ¶ 96-100, these claims are not within the purview of this Court. See Cottrell v. United
States, 42 Fed. Cl. 144, 149 (1998) (“It is well settled that the Court of Federal Claims
lacks jurisdiction over any and every kind of tort claim.”); see also Hill v. United States,
204 Fed. Appx. 877 (Fed. Cir. 2006) (affirming the Court of Federal Claims’ dismissal of
complaint alleging hostile work environment, among other tort claims). Similarly, Mr.
Melson’s request for punitive damages is beyond this Court’s authority. See Mastrolia v.
United States, 91 Fed. Cl. 369, 381-82 (2010) (“It is well-established that the Court of
Federal Claims lacks authority to grant punitive damages.”) (citations omitted). This Court
does not have the jurisdiction to hear these claims, or to grant the requested relief, so this
case must be dismissed.
   C. Mr. Melson Fails to State a Claim Upon Which Relief Can Be Granted.
        Even supposing this Court could hear Mr. Melson’s discrimination and hostile work
environment claims, the allegations in the complaint would not be enough to “raise a right
to relief above the speculative level,” because they are conclusory and lacking
“specificity.” Bell Atl. Corp., 550 U.S. at 555, 558. Mr. Melson only describes one
situation which could plausibly support a hostile work environment claim, but does not
allege any connection between that incident and his discharge. See Compl. ¶ 28 (“LCDR

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Michelle Baker immediately pulled him into her office and screamed at him repeatedly,
and, addressed Mr. Melson in an unprofessional and condescending manner.”). Further, to
the extent that Mr. Melson seeks travel costs, see Compl. ¶106(f), he does not allege any
divestment of travel entitlements to support granting such relief. Mr. Melson fails to state
a claim upon which this Court may grant relief, so his complaint must be dismissed.
                                        Conclusion
      For the foregoing reasons, the Government’s motion to dismiss is GRANTED, and
the complaint shall be dismissed without prejudice.
       IT IS SO ORDERED.
                                                        /s/ Thomas C. Wheeler
                                                        THOMAS C. WHEELER
                                                        Judge




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