                                                                              ORIG!t\|At
                                llntW@nitt! btstts                                                 @ourt of   febnsl @lsims
                                                                                                                                         FILED
                                                                                    No. l4-985C
                                                                              (Filed: March           10,201s)                          MAR   I 0 2015
                                                                                                                                       U'S' COURT OF
     ,F*+,f   ,! :*   *   ,F   t * )t * ,$ * * + * + )t * ;r + + + * ,. {. * ,F + * '! * * )t *
                                     ,1.
                                                                                                                                      FEDERAL CIAIMS
     KEITH L. KELLER,
                                                                                            :
                                                    Plaintiff,                              +         Motion to Dismiss; RCFC 12(b)(1); RCFC
                                                                                            +         12(b)(6); Military PaY; Request for
     v.                                                                                     *         Reinstatement; Wrongful Discharge; Statute
                                                                                            r         of Limitationsl Res Judicata; Claim
     THE LINITED                           STATES,                                          *         Preclusion

                                                     Defendant.                              'i(
     t:*,1.1.i(***t+,$*,s*d.:f *,lq***:i++++'f                           +**{:+++***

     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")
                      substandard performance. This lattercircumstance resulted in
            plaintifffor                                                                 plaintiffs
discharge
honorable discharge from the Air Force on November 26, 1997'

        Plaintiff challenged various aspects ofhis discharge before the AFBCMR' which
                                                                                        ftom
ultimately recommended that the Air Force change the teason for plaintiffs discharge
,.substandard performance" to "involuntary release; non-selection, pennanent   promotion,"   and

constructively extend plaintiffs date of separation to June 30, 1998. Dissatisfied
                                                                                    with the
                                                                                    November 26,
limited reliefprovided by the AFBCMR, tlaintiff tirnely filed suit in this court on
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
things, that he should have been considered for prornotion by a Special Selection Board
                                                                                           ("sSB')
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'

        The   Air Force convened    SSBs  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
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"",
plaintiff s pay grade:

        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
        Active Duty Service cornrnitment   before  his mandatory  retirement  date oI Date of
        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-
                                                         we request these boards be convened priot to
[plaintiffs] decision on acceptance ofcontinuation,
his retum to active duty."

       Plaintiff s counsel received a response to his letter from the Air Force on June 16' 2006
With respect to counsel's pay grade  inquiry, the Air Force provided:

       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   of
lieutenant colonel. Nevertheless, in a l:u/ite 22,2006 letter to the MBCMR, counsel indicated
that plaintiffhad decidsd to accept continuation:

                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.

                  ln the event he is selected for promotion to the grade of lieutenant colonel,
        he will   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
       corected to reflect a date ofseparation (DOS) of3l Jul    0l  BasedonthisDOS,
       he is now eligible to meet the CY98A, CY99A and CY00A Lreutenant Colonel
       MC Central Selection Boards. Ifnonselected for promotion by these boards, he
       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 follow-
on 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
relevant evidence. Plaintiff responded to the AFBCMR that sarne
                                                                    day ln his letter, he
                                                                                                 and
            *rut his application should not have been tfeated as a request for reconsideration,
"on,*a"a
that even ifsuch a ciraracterization was proper, he provided the required
                                                                              evidence, stating:
.{Tlhe AFBCMR itselfprovided new relevalt evidence . . . when it declared . . . an unchanging
Ulii"ittrut 1.. Keller was elieible for reinstatement to active[ ]duty in 2006
                                                                                 " The AFBCMR
responded to plaintiffon lr4arcn ts, zot+, reiterating the position that
                                                                          it advanced in its February
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
on appeal was that the coult ofFederal claims made an erroneous statement
                                                                                offact in its
December 6, 2013 decision when it remarked that plaintiffs selection
                                                                        for continuation by the
                                                                                 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
him because it had negative consequences on many ofhis arguments before        the court

        ln   a May 8, 2014 ruling, the Federalcircuit rejected plaintiffs contention. First, it held
                                                                                       selected for
that there was no clear eror in the Court of Federal Claims' finding that upon being
continuation, plaintiff had the option of seeking reinstatsment to active duty. second,
                                                                                          it
                                                                            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
request a remedy for the alleged error that was within its authority to plovide
                                                                                 Accordingly, the
Federal Circuit affrrmed the decision of the Court of Federal Claims'

        Plaintiff, continuing to proceed pro se, filed his cunent lawsuit on october 14, 2014' kr
his complaint, plaintiff argues that the AFBCMR's July 19, 2006 decision was arbitrary
                                                                                              and

capncious because the AFBCMR adopted the Air Force Personnel Center's
                                                                                 recommendations-
                                                            colonel and  rejecting a separation date
denying him a direct promotion to the rank of lieutenant
of J;ly-31, 2007-rathir than finding that plaintiff should be reinstated to active duty.
                                                                                           According
to plaintiff, the AFBCMR should have directed his reinstatement to active duty because
                                                                                              it had
previously determined that plaintiff was eligible for reinstatement.   Indeed,  plaintiff asserts, the
AFBCMR revealed for the first time in its April 10,2012 decision that it had always understood
that plaintiff was eligible for an unconditional continuation on active duty. To
                                                                                    remedy the
,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
Rule 12(b) of the Rules of the United States Court of Federal Claims ("RCFC"). Briefing is
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.
must be "filed within six years after such claim hrst accrues
                                                                " 28 U S C $ 2501 (2012); se9 also
                                                                       (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
the statute of limitations when all the events have occuned which
                                                                     fix the liability ofthe
                                                                        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
separation from the Air Force.
                                  plainiifr, on the other hand, characterizes his claim as one for
                                                                     yet accrued because his
reinstatement to active duty, and contends that his claim has not
eligibility for reinstaternent has never been explicitly stated by the AiI Force. There
                                                                                          are sevetal

flaws with plaintiff   s   Position

        First, plaintiffs position is setf-defeating; if plaintiffs characterization ofhis claim
                                                                                                      is
                                                                                  be ripe for
accurate and his claim has not yet accrued, then plaintifPs claim would not
a judication by this court. ses Thornas v. union calbidp       AFic.   Prods. co.,473    U.S.568' 580-
Si(fSSS) (noting that a claim is not ripJ for judicial review when it is contingent upon
                                                                                                fuh'e
events that may or may not occur). Seiond, plaintiff has not cited, and the
                                                                                  court is not aware of,
                                                                          not heated   as a remedy_for
any case law in which a request for reinstatement to active duty      was
                                                                                                     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.,
                                                                                                   29-
United Siates, 298 F.3d t367 , 1370-71 (Fed. Cir. 2002); Cometta v. United         States,  851
                                                                                                ,I   _


wTw-c F"a. cir. 1988) (en banc); Klineenschmitt v. United States, I l9 Fed..CI. 163,          his
                                                                                                     180

(2014). Thi;d, the fact that plaintiff requests back    pay and  allowances  dating  back  to
consnuctive siparation    from  the Air Foice  supports  the proposition that plaintiff believes that his
discharge was i-prop".. In sum, the court concludes that plaintifls request
                                                                                    for reinstatement to
                                                                                     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
 within the six-year statute of limitations. In defendant's view, plaintiff s claim accrued on
                                                                                                 the
 date of his initial, actual separation from the Air Force-November 26, 1997.
                                                                                  it can also be


                                                   -8-
argued that   plaintiffs claim accrued   on the date ofhis constructive separation from the Air
Force-July   31, 2001.   In eiiher case, plaintiffls clairn wouldbe time-baned because he did not
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

    C. Plaintiff Has Failed to State a Claim Upon Which the Court Could Grant Relief

       Even    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
(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
637 . 640 Ged. Cir. 1989) (noting that while a "dismissal on the merits
effect," a "dismissal for want ofjurisdiction does not")'

                                                                                   the parties in the
          There can be no dispute that the parties in this case are identical to
                                                                         in   judgment    on the merits.
lawsuit filed by plaintiff in 2003, or that the 2003 lawsuit   resulted     a
                                                                                  "is based on the same
Thus, the only question to be resolved is whether plaintiff s current
                                                                           claim
                                                                                        question of
set oi transaciional facts" as the claims he raised in his earlier lawsuit. "ff]he
                                                                       'to     determined    pragmatically,
whether two claims involve the same set of fansactional facts is            be
                                                                                              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
confonns to the parties' expectations or business understanding or usage."'
                                                                                     Phillips,Mav Com''
                                                                            (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
operative facts,' the 'sarne operative facts,' or the 'sarne nucleus of operative
                                                                                       facts,' and 'based
 on the same, or nearly the same factual allegations"')'

        In his current complaint, plaintiff alleges that he was improperly separated
                                                                                        from the Atr
                                                                                      should   not have
Force, contending in partiiular that the AFBCMR, in its July 19,2006       decision,
adopted the ,"com-endation ofthe Air Force Personnel Center over its own
                                                                                  view that plaintiff
was eligible for reinstatement to active duty. He therefore seeks   reinstatement   to active duty and
the resrilting back pay and allowances. In the second amended complaint that he filed
                                                                                             in the
2003 lawsuit, plaintiff alleged that he was improperly separated from the Air Force due
                                                                                               to
                                                                                        2000   SSBs,
deficiencies in th" p.or"rr by which the Air Force conducted the     1998,  1999,  and
and that the AIBCMn, in its April 10, 2012 decision, refused to correct his records
                                                                                          to cure those
                He therefore sought, among other relief, reinstatement  to active  duty  and  the
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
factual circumstances: plaintiff s separation from the Air Force in 1997; the AFBCMR's
                                                                                            initial
failure to grant plaintiff any reliefbeyond conecting the date of, and reason for, his separation
from the,{ir Foice; the AFBCMR's subsequent recommendation that plaintiff be considered
                                                                                                 for
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;
beiieen plaintiifs counsel and the AFBCMR regarding plaintiffs options        for  continuing on
active duiy; plaintiff s decision to request continuation on active duty via constructive sewice;
the ApSiMR's July 19, 2006 decision memorializing plaintiffs choice and adopting
                                                                                          the
recommendations ofthe Air Force Personnel Center that plaintiffbe considered for
                                                                                        promotion by
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.




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