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Maxberry v. Department of Army

United States District Court, District Circuit

July 3, 2013




Pro se plaintiff Dennis Lee Maxberry files this action for damages for alleged wrongs committed by the Army Board for the Correction of Military Records ("ABCMR").

Defendant now moves to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1), or alternatively under Rule 12(b)(6). Upon consideration of the parties' submissions, the Court will grant defendant's motion to dismiss pursuant to Rule 12(b)(1). This Court does not have jurisdiction to hear plaintiff's claims because they are barred by the six-year statute of limitations under 28 U.S.C. § 2401(a), and because any claims of fraud and misrepresentation are exempt from the Federal Tort Claims Act's ("FTCA") general waiver of sovereign immunity. As such, the Court need not consider defendant's motion to dismiss under Rule 12(b)(6).


Plaintiff, Dennis Maxberry is a former soldier who enlisted in the Army in September, 1976. He received a "general/under honorable conditions" discharge on June 23, 1978 for "failure to maintain acceptable standards for retention." Def.'s Mot. Dismiss, App., at 87-89 [hereinafter App.]. In his complaint, he alleges that the ABCMR continues to wrongfully deny him either a change to the discharge he received or an upgrade in the characterization of his service to "honorable." He also seemingly alleges that the ABCMR breached an unspecified contract with him and that the ABCMR's failure to review the conditions of his discharge constitutes "fraud and misrepresentation." See Am. Complaint ¶¶ 12-13, 15-16, 18-19, 21, 24; id. at 11-12. Plaintiff seeks $4, 000, 000 in general damages for fraud, $66, 000 in damages for breach of contract, punitive damages, interest, attorneys fees, and $70, 000 for loss of property, bad faith, punitive damages, and a reinstatement of plaintiff's seniority.

Plaintiff's complaint fails to clearly state specific dates and events. Thus, the Court looks to defendant's memorandum in support of its motion to dismiss for missing facts and details. Plaintiff appears to have been discharged on June 23, 1978 after months of poor performance, failed rehabilitative efforts, and run-ins with local authorities. Between November 1980 and April 1983, plaintiff filed three requests with the Army Discharge Review Board ("ADRB") requesting an upgrade to his discharge. App. at 73-75. The ADRB denied his requests on April 24, 1984. App. at 65, 71-72. A year later, on April 11, 1985, plaintiff asked the ABCMR to upgrade his "under honorable conditions discharge" to "honorable, " arguing that the circumstances surrounding his discharge had been misconstrued and that the characterization of his service as being "under honorable" was unwarranted. App. at 58-59. The ABCMR denied plaintiff's application on October 15, 1986. Plaintiff had not timely filed, and the ABCMR did not find his failure to timely file excusable in the interest of justice. On June 2, 1987 plaintiff filed another application with the ABCMR challenging the circumstances of his discharge. The ABCMR again denied plaintiff any relief on August 19, 1988. App. at 44.

On October 22, 2008, plaintiff resumed his attempts to amend his discharge by submitting another application to the ABCMR. ABCMR notified plaintiff on March 19, 2009 that his application had been filed too late and that the Board would not consider future submissions. Plaintiff nonetheless continued to submit applications to the ABCMR, which were repeatedly denied.


A. Jurisdiction

Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to dismiss a complaint, or a claim therein, for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). In response to such a motion, the plaintiff must show that his claims lie within "the Judicial Power of the United States, " U.S. Const. art. III, § 1, and that a federal statute grants the court jurisdiction to hear those claims. Abdelfattah v. U.S. Dep't of Homeland Sec., 893 F.Supp.2d 75, 78 (D.D.C. 2012) (quoting Micei Int'l v. Dep't of Commerce, 613 F.3d 1147, 1151 (D.C. Cir. 2010)). If the plaintiff cannot establish both elements, the court must dismiss the action. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (citing Ex parte McCardle, 74 U.S. 506, 514, 7 Wall. 506, 19 L.Ed. 264 (1868)). The court will, however, "assume the truth of all material factual allegations in the complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.'" Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). When resolving a motion made under Rule 12(b)(1), a court may consider material beyond the allegations in the plaintiff's complaint. Abdelfattah v. U.S. Dep't of Homeland Sec., 893 F.Supp.2d 75, 78 (quoting Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005)).

B. Sovereign Immunity

The United States and its federal agencies are generally immune from suit pursuant to the doctrine of sovereign immunity unless Congress explicitly waives it. United States v. Mitchell, 445 U.S. 535, 538 (1980). "Thus, in the absence of a waiver of sovereign immunity, the court lacks jurisdiction over... claims against federal defendants for money damages." Bond v. U.S. Dep't of Justice, 828 F.Supp.2d 60, 74 (D.D.C. 2011). The Federal Tort Claims Act waives the government's sovereign immunity from tort suits. 28 U.S.C. § 1346(b)(1). However, the Act does not apply to certain claims such as "misrepresentation" or "deceit." Id. § 2680(h).

C. Pro Se Plaintiff Standard

"A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erikson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, a pro se plaintiff's complaint "must present a claim on which the Court can grant relief." Utterback v. Geithner, 754 ...

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