United States District Court, D. Columbia.
JAMES M. LEWIS, Plaintiff,
UNITED STATES OF AMERICA, Defendant
James M. Lewis, Plaintiff, Pro se, Grandview, MO USA.
For United States of America, Defendant: Alexander Daniel Shoaibi, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC USA.
Re Document Nos.: 4, 6
RUDOLPH CONTRERAS, United States District Judge.
Granting Defendant's Motion to Dismiss & Denying as Moot Plaintiff's Motion for Summary Judgment
Plaintiff James Lewis (" Mr. Lewis" ), proceeding pro se, brings suit against the United States of America (" Defendant" ) under the Federal Tort Claims Act, 28 U.S.C. § § 2671-80 (" FTCA" ). Mr. Lewis received a bad conduct discharge from the U.S. Marines in 1971, which was administratively changed to a general discharge in 1974. In the decades that followed, Mr. Lewis has repeatedly sought to upgrade his discharge to honorable, bringing a number of civil suits and filing multiple petitions for extraordinary relief with the Court of Appeals for the Armed Forces (" CAAF" ). At the heart of this latest action is Mr. Lewis's belief that under CAAF rules, he was entitled to designated counsel to aid him in seeking extraordinary relief from that court.
Mr. Lewis first claims that an employee of the Office of the Judge Advocate General of the Navy (" JAG" ) willfully misrepresented the law when he stated that Mr. Lewis was only eligible for appointed counsel as to the first appeal of his conviction. Second, Mr. Lewis claims that the employee's failure to designate counsel after Mr. Lewis filed a petition for extraordinary relief in August 2012 was contrary to CAAF rules and negligent. As a consequence of both the willful misrepresentation and negligent failure to appoint counsel, Mr. Lewis claims to have suffered emotional distress, and he seeks $750,000,000 in damages from the United States under the FTCA. Now before the Court are Defendant's motion to dismiss both claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and Mr. Lewis's motion for summary judgment. For the reasons set forth below, the Court will grant Defendant's motion to dismiss both claims for lack of subject-matter jurisdiction, and will deny Mr. Lewis's motion for summary judgment as moot.
II. FACTUAL ALLEGATIONS
Mr. Lewis enlisted in the United States Marine Corps (" USMC" ) in 1968. See Lewis v. Sec'y of the Navy, 892 F.Supp.2d 1, 2 (D.D.C. 2012). On May 22, 1970, Mr. Lewis was convicted at a general court-martial for assault with a deadly weapon, disrespect, striking a non-commissioned officer, and making threats. Id. He received a bad conduct discharge effective August 27, 1971. Id. In September 1972, Mr. Lewis's court-martial conviction was reversed due to a jurisdictional defect for failing " to specify the name of the judge who was requested to try the case." Id. at 3 (quoting Lewis v. United States, 45 C.M.R. 937, 937 (C.M.A. 1972). In 1974, the USMC reinstated Mr. Lewis to the rank of Private First Class, and his bad conduct discharge was retroactively changed to a general discharge under honorable conditions " for convenience of the government." See Lewis v. United States, 99 Fed.Cl. 772, 774 (2011).
From 1983 to the present, Mr. Lewis has filed a number of administrative and civil claims concerning the 1974 decision to give him a general discharge. He believes that he should have been given the opportunity to present materials before he was retroactively assigned a general discharge in 1974. See Mr. Pinson's Letter to JAG, Pl.'s Ex. C at 6, ECF No. 1-1 (describing Mr. Lewis's belief that the discharge procedures violated military law). Accordingly, Mr. Lewis filed a petition for extraordinary relief in the nature of a writ of error coram nobis  with the CAAF on October 11, 2011. See Def.'s Mot. at 4; Compl. at 5. The CAAF dismissed Mr. Lewis's petition for lack of jurisdiction on February 7, 2012. Lewis v. United States, No. 12-8015/NA, (C.A.A.F. Feb. 7, 2012). Mr. Lewis then filed a petition for reconsideration of the February 2012 decision, and he turned to Representative Emanuel Cleaver for assistance in obtaining appointed counsel.
On May 16, 2012, the JAG Office of Legislative Affairs fielded a question from the office of Representative Cleaver on behalf of Mr. Lewis, who is one of the Representative's constituents. See E-mail to Rep. Cleaver, Pl.'s Ex. A at 1, ECF No. 1-1. Commander Damian Flatt replied via e-mail that same day, writing:
I have reviewed the documents and can provide some options to Rep. Cleaver's constituent. As you know he intends to petition the Court of Appeals for the Armed Forces (CAAF) to reconsider a petition that was dismissed. As far as CAAF is concerned there is no case in controversy at this point. Accordingly, there is no right to counsel. The Navy could still provide counsel but either Mr. Lewis or Rep. Cleaver on his behalf would best be served by requesting assistance of counsel from the Judge Advocate General.
Id.; Compl. at 5. Mr. Lewis then asked Representative Cleaver to forward his request to JAG. Compl. at 5. Meanwhile, on May 21, 2012, the CAAF denied Mr. Lewis's request for reconsideration. Lewis v. United States, No. 12-0815/NA, (C.A.A.F. May 21, 2012).
On June 19, 2012, Colonel J.R. Ewers (" Col. Ewers" ), Assistant JAG, responded to Representative Cleaver in a letter written from the JAG headquarters in Washington, D.C. See Compl. at 1, 5; Letter from Col. Ewers, Pl's Ex. B at 4, ECF No. 1-1. After noting that the CAAF had already denied Mr. Lewis's petition for reconsideration and that Mr. Lewis was now seeking counsel to aid him in appealing the decision to the Supreme Court, Col. Ewers wrote:
On September 13, 1972, when the Court of Military Appeals set aside his conviction, Mr. Lewis's court-martial was final and conclusive, pursuant to Article 76, UCMJ and Rule for Courts-Martial 1209. Although Article 70, Uniform Code of Military Justice (UCMJ) provides that an accused is entitled to the appointment of counsel while his case is under appellate review, this right is limited to first appeals. United States v. Brooks, 66 M.J. 221 (C.A.A.F. 2008). There is no conviction or punitive discharge for Mr. Lewis to appeal and therefore there is no statutory authority for the Navy Judge Advocate General to appoint an attorney to represent Mr. Lewis in his planned post-appellate review appeal to the Supreme Court.
Letter from Col. Ewers, Pl's Ex. B at 4. Mr. Lewis contends that Col. Ewers's statement that the right to appointed counsel under Rule 70 is limited to first appeals is a " willful misrepresentation of the C.A.A.F.'s analysis," because an accused has the right to effective representation during " the ...