In the United States Court of Federal Claims

No.17-831C F|LED
(Flled: September 28, 2017) 559 2 8 2917

 

 

) us count oF
GREGORY DEVON FREDERICK, ) FEDERAL CLAI|V|S
)
Pro Se Plaintiff, ) Pro Se, Lack of Subject Matter
) Jurisdiction, Statute of Limitations
v. )
)
THEIH{HIH)STATES, )
)
Defendant. )
)
ORDER
FIRESTONE, Sem`or Judge.

Now pending before the court is defendant United States Navy’s motion to
dismiss, pursuant to Rule lZ(b)(l) of the Rules of the United States Court of F ederal
Claims (RCFC) the complaint filed by Mr. Gregory Devon Frederick on June l9, 2017.
The defendant United States Navy (“the government”) contends that the complaint filed
by Mr. Frederick is based on a variety of wrongs he allegedly suffered during his
enlistment in the Navy between Novernber 21, 1996 and February 20, 2001, when he was
issued a general (under honorable conditions) discharge from the Navy. 'I`he government
argues that because the claims accrued on the date of his discharge on February 20, 2001,

this action, filed more than 15 years after that date, is barred by the six-year statute of

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limitations set forth in 28 U.S.C. § 2501.1 The government further argues that this court
also lacks subject matter jurisdiction over Mr. Fredericl<’s complaint to the extent his
claims sound in tort or are based on alleged due process and civil rights violations.
Because the court does not have jurisdiction over Mr. Frederick’s claims, the court
GRANTS the government’s motion to dismiss
I. BACKGROUND FACTS 2

Mr. Frederick joined the United States Navy as a serviceman on Novernber Zl,
1996. Def.’s Mot. Dismiss 2; App. l. Mr. Frederick’s first duty station was on the USS
Patriot, where he received a positive performance evaluation Def.’s Mot. Dismiss 2;
App. 4. I-Ie received a promotion from a Seaman (E-3) to an Operations Specialist Third
Petty Officer (E-4) on December 21, 1997. Def.’s Mot. Dismiss 2. Mr. Fredericl<
received mostly positive performance evaluations during the remainder of his time
aboard the USS Patriot. Def.’s Mot. Dismiss 2; App. 4-13.

Mr. Frederick was transferred to the USS Crornrnelin on April 26, 2000. Def.’s
Mot. Dismiss 2; App. 14. While aboard the USS Crommelin, Mr. Fredericl< Was charged

with three violations of Article 91 of the Uniform Code of Military Justice (“UCMJ”)

 

l 28 U.S.C. § 2501 states that “{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.”

2 The facts contained in this section are derived from Mr. Frederick’s compiaint, the
government’s motion to dismiss, and the appendix. The government has attached an appendix to
its motion which includes l\/[r. Frederick’s Navy employment file, his performance reviews, and
the prior Navy Board decisions The court may look to evidence outside the complaint to
determine jurisdiction See Lcmd v. Doflar, 330 U.S. 731, 735 (1947).

 

(insubordinate conduct toward a warrant officer, non-commissioned officer, or petty
officer) 10 U.S.C. § 891; Def.’s Mot. Dismiss 3; App. 29-31. After these charges were
filed, the Navy began administrative separation processing of Mr. Fredericl< by reason of
“Misconduct ~ Cornrnission of a Serious Offense.” Def.’s Mot. Dismiss 3; App. 17-22.
l\/lr. Frederick was separated from the Navy on February 20, 2001. Def.’s Mot. Dismiss
3; App. 1, As noted above, his discharge was characterized as “general (under honorable
conditions).” Def.’s l\/iot. Dismiss 3; App. 1.

On April 28, 2005, Mr. Fredericl< sought to change his discharge status before the
Naval Discharge Review Board (“NDRB”). Def.’s Mot. Dismiss 3; App. 24~27. In his
application before the NDRB, Mr. Fredericl< requested that his general (under honorable
eonditions) discharge be upgraded to an “honorable characterization” so that he could
“gain access to [the] l\/iontgomery Gl Bill,” study at the university level, and receive
corrective surgery. Def.’s l\/lot, Dismiss 3; App. 24~27. The NDRB reviewed Mr.
Fredericl<’s application which was in the form of a letter that is essentially identical to
l\/Ir. Fredericl<’s current complaint Def.’s l\/lot. Dismiss 3; App. 25-26. The NDRB also
reviewed l\/lr. Fredericl<’s service record and other documents provided by Mr. Fredericl<,
including his medical records Def.’s Mot. Dismiss 3; App. 25-26; App. 31-32. On
October 26, 2005, the NDRB denied Mr. Fredericl<’s application to change his discharge
status Def.’s Mot. Dismiss 3 ; App. 23; App. 31-32. The NDRB determined that Mr.
Fredericl<’s original general (under honorable conditions) discharge status was proper.

Def.’s Mot. Dismiss 3; App. 23; App. 31-32.

 

 

In addition to seeking to change his discharge status before the NDRB, Mr.
Frederick also sought correction of his military record before the Board for the
Correction of Naval Records (“BCNR”). ln his request before the BCNR, Mr. Frederick
argued that he wanted to have his naval records corrected on account of “pain and
suffering from [a] medical procedure.” Def.’s Mot. Dismiss 4; App. 35-36. Mr.
Frederick provided the BCNR With a statement that is also nearly identical to the
complaint he filed in this court. Def.’s Mot. Dismiss 4;, App. 36. The BCNR denied l\/lr.
Frederick’s request to correct his record on August 21, 2006. Def.’s Mot. Dismiss 4;
App. 37-3 8. l\/lr. Frederick sought a reconsideration of the BCNR decision on September
4, 2009. Def.’s Mot. Dismiss 4; App. 39. The BCNR denied reconsideration on October
6, 2009. Def.’s Mot. Dismiss 4; App. 39.

l\/lore than 15 years after his discharge from the Navy and more than six years
after the BCNR’s last decision, l\/lr. Frederick filed his complaint in this court on J unc 19,
2017 seeking to redress his “grievance against [his] supervisors [ while in the Navy] in
attempt(s) to assuage [himself] of the malice that has been afflicted upon . . . [hiin].”
Pl.’s Comp. Speciiically, l\/lr. Frederick claims that he suffered the following “wrongs:”

l. The denial of my right to submit request documents and
gain response.

2. The denial of accesses to tools which are detrimental in
accomplishing my job in a timely and proficient manner.

3. The denial of my right to file rebuttals to negative
evaluations of my job performance

4. The denial of choice aspects of training which Would
enhance rate proficiency.

5. The wrongful seizure of personal items and the

exploitation of those items with the intent of inflicting
financial inadequacy

 

6. Subtle forms of harassment with the intent of poisoning
my morale.

7. The denial of key watch positions even after I have
ascertained the proper qualification

8. The denial of qualification documents which would
(rnandate) the right to hold higher positions and qualify
for advancement (immediately)

9. The denial of my right to file grievance documentation

10. The denial of medical treatment

ll.Violation of my privacy in the release of medical
documentation and the like which have contributed to a
hostile work environment

12. Outright conspiracy to sabotage my intentions to extend,
advance, and progress in my career.

Pl.’s Compl. l\/lr. Frederick does not seek any specific monetary or injunctive
relief in his complaint

The government filed its motion to dismiss on August 18, 2017. Def.’s l\/Iot.
Dismiss. As noted above, in its motion, the government argues that Mr. Frederick’s
complaint should be dismissed on the grounds that all of the claims are time~barred under
28 U.S.C. § 2501. The government also argues that to the extent Mr. Frederick’s claims
sound in tort or can be construed to involve due process or civil rights violations the
claims are outside the subject matter jurisdiction of this court. On September 13, 2017,
l\/lr. Fredericl< filed another version of his complaint in response to the government’s
motion. Pl.’s Resp.
II. LEGAL STANDARI)S

Whether the court has subject matter jurisdiction over a case is a threshold issue
that must be resolved in order for the case to proceed. Stee! Co. v. Citizensfor a Better

Env ’t, 523 U.S. 83, 94-95 (1998). The plaintiff bears the burden of proving that

 

jurisdiction exists based on a preponderance of the evidence Taylor v. United States,
303 F.3d 1357, 1359 (Fed. Cir. 2002) (citing Thomson v. Gaskill, 315 U.S. 442, 446
(1942) (stating “the plaintiff bears the burden of supporting the allegations by competent
proof.”)). Complaints submitted by pro se parties are held to “less stringent Standards”
than those completed by lawyers Hai'nes v. Kerner, 404 U.S. 519, 520 (1972).
Nonetheless, pro se plaintiffs still must satisfy jurisdictional requirements Heuss v.
United States, 78 Fed. Cl. 442, 444 (2007) (quoting Bernard v. United States, 59 Fed. Cl.
497, 499, aff’d, 98 Fed. Appx. 860 (Fed. Cir. 2004)).

As noted, 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.” The six-year time bar on actions against
the United States is jurisdictional, because filing within the six-year period is a condition
of the waiver of sovereign immunity in the Court of Federal Claims under the Tucker Act
and must be strictly construed John R. Sand & Gravel Co. v. United Sfates, 552 U.S.
130, 136 (2007).
III. DISCUSSION

The government has moved to dismiss l\/Ir. Frederick’s complaint on the grounds
that his claims accrued more than six years before he filed this lawsuit and thus his action
is barred by the statute of limitations set in 28 U.S.C. § 2501, Def.’s Mot. Dismiss 6.
The court agrees lt is well-settled that claims relating to a military discharge accrue at
the time of discharge. See MacLean v. United Srates, 454 F.3d 1334, 1336 (Fed. Cir.

2006) (quoting Martinez v. United Staz‘es, 333 F.3d 1295, 1303 (Fed. Cir. 2003)). Here

 

l\/lr. Frederick was discharged from the Navy on February 20, 2001. Def.’s Mot. Dismiss
3; App. 1. Thus Mr. Frederick had until February 20, 2007 to challenge his discharge
before this court. Because Mr. Frederick filed his complaint with this court on June 19,
2017, more than fifteen years after his discharge his complaint is time-barred under 28

U.S.C. § 2501.

ln addition to his complaint being time-barred, the court also agrees with the
government that this court does not have subject matter jurisdiction over Mr. Frederick’s
claims in any case. Mr. Frederick’s complaint focuses on the Navy’s alleged
mistreatment of him while on active duty. Although it is difficult to characterize the legal
nature of his ciaims, it does appear that the majority either sound in tort or involve
possible due process or civil rights violations As the government correctly argues, these
types of claims are outside this court’s subject matter jurisdiction This court does not
have jurisdiction over claims sounding in tort. Shearin v. United States, 992 F.2d 1195,
1197 (Fed. Cir. 1993). “['l`]he Tucker Act explicitly excludes tort claims against the
United States from this court’s jurisdiction.” Rothing v. United States, l32 Fed. Cl. 387,
390 (2017). ln addition, this court lacks jurisdiction over claims based on due process
and civil rights violations The Federal Circuit in LeBlanc v. United States, 50 F.3d 1025,
1028 (Fed. Cir. 1995) made plain that the Court of Federal Claims does not have
jurisdiction over allegations of violations of the Due Process Clause of the Fifth and
Fourteenth Amendments because they do not “mandate payment of money by the

government.” lt is also well-settled that this court does not have jurisdiction over civil

 

 

rights claims Rather, federal district courts have “original jurisdiction” to hear those
claims See 28 U.S.C. § 1343. See also Taylor v. United States, 666 Fed. Appx. 896, 897
n.l (Fed. Cir. 2016) (“Congress has authorized federal district courts to hear such claims,
28 U.S.C. § 1343(a), but has granted no such authority to the Court of Federal Claims.”)
CONCLUSION
For the above-stated reasons, the government’s motion to dismiss for lack of
jurisdiction is GRANTED. The clerk shall enter judgment accordingly. No costs

IT IS SO ORDEREI).

 

 

l NANOYB. FIREsToNE
Senior Judge

