Opinion
CIVIL ACTION NO. 02-2654, SECTION "N"
November 7, 2003
ORDER AND REASONS
Before the Court is a motion to dismiss filed by the United States of America ("United States"), on May 21, 2003, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. For the reasons that follow, the motion is DENIED without prejudice to the Government's right to reurge the motion.
The United States represents, in the memorandum supporting its motion to dismiss, that the Department of the Army does not participate in the motion because service upon it has not been effected.
BACKGROUND
The plaintiff, John P. Batiste, is a retired non-commissioned officer of the United States Army. Batiste was convicted at a special court martial on December 10, 1984, for dereliction of duty under article 92 of the Uniform Code of Military Justice. Batiste contends that the judge in that matter made a clemency recommendation to the convening authority regarding the forfeiture and pay reduction components of his sentence. The convening authority allegedly did not thereafter consider the recommendation, however, because Batiste's counsel did not reference it in his submission to the convening authority. Thus, the findings against Batiste and his sentence (except the pay forfeiture) were approved. According to Batiste, the Staff Judge Advocate also erred in preparing and submitting a post-trial review of the court martial without mentioning the clemency recommendation. After the court martial findings and sentence became final, Batiste sought administrative relief, including relief from the Army Board for Correction of Military Records (ABCMR). Batiste's requests that his conviction and sentence be set aside were denied.
On August 28, 2002, Batiste filed this suit, seeking relief from his court martial sentence, and contending that "it is clear error under military law to fail to inform the convening authority that the trial judge recommended clemency." Batiste maintains that, if he had been granted clemency as the military trial judge intended, he would have been promoted to subsequent grades earlier than he thereafter was promoted. He also asserts that he would have been promoted to, and retired at, a higher grade, and received greater retirement pay and benefits, but for his court martial sentence.
See August 28, 2002 Complaint at ¶ 17.
On this basis, Batiste's complaint asks this Court to: (1) to set aside his sentence and/or conviction; (2) promote him retroactively to the pay grades to which he would have been promoted had he been granted clemency; (3) award him back pay and benefits commensurate with those pay grades; and (4) provide other such relief in accordance with equity and justice. Although Batiste has not sought leave to formally amend his complaint, the opposition he submitted in response to the Government's motion to dismiss states that he seeks to have the clemency hearing that he never had, so that he may present his arguments for back pay and rank. It further suggests that his alleged entitlement to promotion above that previously achieved should be determined, upon this Court's order, by a special Army selection board.
See June 17, 2003 Opposition Memorandum at ¶ 7 (Rec. Doc. No. 15).
Id. ("Prayer for Relief").
Seeking dismissal pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the Government contends that Batiste's claims for monetary relief are barred by the doctrine of sovereign immunity. It also argues that his claims are time-barred by 28 U.S.C. § 2401. Specifically, the Government contends that the monetary relief that Batiste seeks, i.e. back pay and benefits, including retirement pay, are "money damages" to which the Administrative Procedures Act (APA) waiver of sovereign immunity does not extend. See 5 U.S.C. § 702; Armendariz-Mata v. U.S. Dept. of Justice, 82 F.3d 679, 682 (5th Cir. 1996). Citing the six-year statute of limitations set forth in 28 U.S.C. § 2401, the Government additionally contends that Batiste's monetary and non-monetary claims accrued approximately ten years ago and, thus, are untimely.
LAW AND ANALYSIS
The Government filed its motion to dismiss on May 21, 2003. On June 17, 2003, Batiste, proceeding pro se, submitted an opposition to that motion. The Court heard oral argument on the motion on July 23, 2003. Neither party has offered a post-hearing submission regarding the issues raised by the Government's motion.
Although Batiste originally was represented by counsel in this action, this Court allowed Batiste's counsel, Phillip Lawrence, to withdraw from his representation in March 2003, when he was recalled to active duty in the United States Marine Corps Reserve. Although Batiste later advised the Court that he understood Lawrence to have returned to New Orleans and to have been released from his military obligations, Batiste stated that his efforts to contact Lawrence were unsuccessful. Thus, Batiste has proceeded pro se in this matter since mid-March 2003.
Significantly, since the time that the Government filed its motion and supporting memorandum, additional information about this matter has come to light. Considering the question of the Government's waiver of sovereign immunity, the Court instructed Batiste, on October 28, 2003, to advise the Court whether the dollar amount of the monetary relief that he seeks in this action exceeds $10,000. On October 30, 2003, Batiste responded that he will not seek to recover "any amount that exceeds $9,999."
See October 30, 2003 Plaintiffs Response to Court Order (Rec. Doc. No. 21).
Regarding the timeliness of his action, Batiste argued, in his June 17th opposition, that his case is not untimely because he remained on active military duty until June 30, 1995, and because he timely filed his claim on April 30, 2001. Because this action was not filed until August 28, 2002, the Court initially was not certain what Batiste meant when he stated that he had "timely filed his claim on April 30, 2001." Upon questioning at oral argument, Batiste explained that he previously had filed an action regarding his court martial sentence in the Court of Federal Claims on April 30, 2001. See Batiste v. United States, No. 01-259 (Ct. Fed. C1.).
See June 17, 2003 Opposition Memorandum at ¶ 4 (Rec. Doc. No. 15).
See Complaint (submitted by Batiste). A copy of this document is attached hereto as Exhibit A.
Documents from that action submitted by Batiste at the close of oral argument indicate that the action ultimately was dismissed by the Court of Federal Claims on December 11, 2001, as untimely, and that a motion treated as a motion for reconsideration apparently was denied on or about February 8, 2002. On May 30, 2002, the appellate court, the United States Court of Appeals for the Federal Circuit, ruled that Batiste's efforts to appeal the December 11, 2002 dismissal were untimely, and affirmed the lower court's denial of Batiste's motion for reconsideration.
See December 11, 2001 Order (submitted by Batiste); February 4, 2002 Motion in Opposition to Defendant's Motion to Dismiss, and the Order Be Rescinded (submitted by Batiste); May 30, 2002 Order of Federal Circuit (submitted by Batiste) at 2; November 4, 2003 Docket Report (obtained by Court). A copy of these documents is attached hereto as Exhibits B, C, D and E.
See May 30, 2002 Order of Federal Circuit, Exhibit D.
Upon reviewing the Court of Federal Claims documents submitted by Batiste, the undersigned also realized that, prior to filing suit in the Court of Federal Claims, Batiste had filed a suit regarding this matter in this Court in August 1996. See Batiste v. Secy. of the Dept. of the Army, et al., No. 96-2737 (E.D. La.). Judge Clement dismissed that action on April 23, 1997.
Assuming, without deciding, that the Government is correct that Batiste's requests for monetary relief are outside this Court's APA jurisdiction, the Government's motion to dismiss and supporting memorandum do not address the possibility that Batiste's statement that he will not seek to recover more than $9,999 triggers the Court's concurrent jurisdiction over Tucker Act Claims. See 28 U.S.C. § 1346 (a)(2) (the "Little Tucker Act") (giving the district courts and the United States Court of Federal Claims concurrent original jurisdiction over civil actions or claims against the United States, not exceeding $10,000 in amount, founded on, among other things, the Constitution, an Act of Congress, or an Executive Department regulation). Nor does it respond to Batiste's assertion that the six-year statute of limitations was "tolled" until June 30, 1995, when he was discharged from active service. See 50 App. U.S.C.A. § 525 (providing that a period of military service shall not be included in computing any period . . . limited by law, regulation or order for the bringing of any action or proceeding . . .). Finally, the Government's submission does not address the possibility that one or both of the two actions previously filed by Batiste regarding his court martial sentence suspended the statute of limitations pursuant to the equitable tolling doctrine such that Batiste's action is timely. See, e.g., Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453 (1991); Clymore v. United States, 217 F.3d 370 (5th Cir. 2000) (discussing doctrine of equitable tolling). In sum, the materials presently before the Court do not adequately speak to the issues to be decided.
The Court notes that the Government cites no authority for its assertion that the monetary relief that Batiste seeks constitutes "money damages" for purposes of the APA.
Neither party has addressed whether any of the relief that Batiste seeks is relief that is properly provided only by the Army, in its discretion, rather than by a civilian court. Additionally, although the Court does not suggest whether either or both of Batiste's previous suits regarding this matter should preclude this Court's consideration of the instant action by virtue of the res judicata or collateral estoppel doctrines, the Court notes that the Government has not objected to this suit on either basis or informed the Court why it has determined it to be inappropriate to do so.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that the Motion to Dismiss filed by the United Slates of America is DENIED without prejudice to the Government's right to reurge the motion upon further briefing.