Durr v. United States ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHEN DURR,
Plaintiff,
v. Case No. 1:21-cv-00354 (TNM)
UNITED STATES, et al.,
Defendants.
MEMORANDUM OPINION
Proceeding pro se, Stephen Durr challenges his 1994 discharge from the U.S. Army.
This is Durr’s third attempt in various courts to obtain monetary and injunctive relief as to his
discharge. Both of his previous complaints were dismissed. This Complaint resembles those
unsuccessful challenges and will also be dismissed.
I.
Much of the factual background for this case has been ably recited in Judge Jackson’s
opinion dismissing Durr’s last failed complaint. See Durr v. Dep’t of Army, No. 19-cv-1340,
2020 WL 491460 (D.D.C. Jan. 30, 2020). The Court incorporates that opinion by reference here.
In short, the Army discharged Durr from active duty in 1993 after he was diagnosed with
schizophrenia. See Second Amended Complaint (SAC) ¶ 2, ECF No. 10. As a result of that
diagnosis, the Army placed Durr on the Temporary Disability Retired List (TDRL), see id.,which allows disabled soldiers to remain in the Army and to collect retired pay, see Durr, 2020
WL 491460, at *1. But in 1994, the Army’s Physical Evaluation Board (PEB) determined that
Durr’s condition had not improved to make him fit for active duty nor was his disability severe
enough to keep him on the TDRL. See SAC ¶¶ 3–4. At the time, Durr agreed with the PEB’s
findings, see Durr, 2020 WL 491460, at *1; SAC ¶ 9, and the Army discharged him in 1994
from all military service, see SAC ¶ 5.
Years later, Durr changed his mind. He twice filed claims with the Army Board for the
Correction of Military Records (ABCMR), asking to be reinstated based on new medical
information that the PEB had not previously considered. See Durr, 2020 WL 491460, at *2.
The ABCMR denied his claims, most recently in 2014. See id. Durr appealed that decision to
the Court of Federal Claims, which held that Durr had not filed his claim within the applicable
six-year statute of limitations. See Court of Federal Claims’ Order of Dismissal (“Ct. Fed. Cl.
Order”), Defs.’ Motion to Dismiss Ex. 2 at 4, ECF No. 14-3. 1
From there, Durr filed a complaint in this district. He sought judicial review under the
Administrative Procedures Act (APA) of the ABCMR’s decision and asked for $25 million in
damages. See Durr, 2020 WL 491460, at *2. When the Government moved to dismiss Durr’s
complaint on jurisdictional grounds, he argued that he was entitled to mandamus relief under 28
U.S.C. § 1361. See id. at *3. Judge Jackson noted that Durr’s complaint requested money
damages above $10,000. See id. at *4. Thus, according to the Tucker Act, 28 U.S.C. § 1491(a),
jurisdiction over Durr’s complaint lay exclusively with the Court of Federal Claims. See id.Judge Jackson also concluded that Durr had not shown a “clear and indisputable right” to
mandamus relief because no law required the Army to perform the requested actions and Durr
had failed in all other efforts to correct his military records. See id. at *5. The court accordingly
dismissed Durr’s complaint. See id. The D.C. Circuit summarily affirmed. See Durr v. Dep’t of
the Army, 828 F. App’x 723 (D.C. Cir. 2020) (per curiam).
1
All page citations refer to the pagination generated by the Court’s CM/ECF system and all
exhibit numbers refer to the numbered attachments to the CM/ECF filings.
2
During Durr’s suit before Judge Jackson, the ABCMR released another decision denying
his request to correct his records and to receive backpay. See Compl. Ex. 1, Part 3 at 37–43,
ECF No. 4. Durr now seeks judicial review of that most recent decision. See SAC ¶ 22. Like
the earlier complaint before Judge Jackson, his Complaint here asks for, among other things,
retroactive reinstatement to military service, promotion to the rank of colonel, and attendance at
advanced military training. See id. ¶ 23. He also requests compensatory and monetary damages
of over $400 million. See id. ¶¶ 23–24, 33–34.
Durr’s Complaint differs from his previous complaint in that he asserts new bases for this
Court’s jurisdiction. Durr ignores the APA, instead arguing that the Court has jurisdiction under
various provisions of Title 10 of the U.S. Code, see id. ¶¶ 23, 35, a so-called “Federal Joint and
Several Liability Doctrine,” see id. ¶ 28, and 28 U.S.C. § 1331, see id. at 1. The Government
moves to dismiss the Complaint. See ECF No. 14. That motion is now ripe.
II.
The Government moves to dismiss Durr’s Complaint on various grounds, including under
Rule 12(b)(1) for lack of subject matter jurisdiction. The Government argues that Durr has not
shown, despite Judge Jackson’s dismissal of his earlier complaint, why this Court and not the
Court of Federal Claims has jurisdiction over the current Complaint.
Durr bears the burden of establishing the Court’s jurisdiction over his claims. See Lujan
v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). When deciding a Rule 12(b)(1) motion, the Court
“assume[s] the truth of all material factual allegations in the complaint and construe[s] 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) (cleaned up).
But the Court is “not required . . . to accept inferences unsupported by the facts or legal
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conclusions that are cast as factual allegations.” Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C.
2001). In deciding this motion, the Court “may consider materials outside the pleadings.”
Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
Durr proceeds without counsel. This triggers special solicitation for him. “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.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (cleaned up). More, the Court must assess a pro se complaint “in
light of all filings, including filings responsive to a motion to dismiss.” Brown v. Whole Foods
Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015). But pro se plaintiffs must still “plead
factual matter that permits the court to infer more than the mere possibility of misconduct.”
Atherton v. D.C. Off. of Mayor, 567 F.3d 672, 681–82 (D.C. Cir. 2009). The Court thus does not
accept as true legal conclusions or “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements.” Yellen v. U.S. Bank, Nat’l Ass’n, 301 F. Supp. 3d 43,
47 (D.D.C. 2018).
III.
The Government argues that the Tucker Act, 28 U.S.C. § 1491, vests exclusive
jurisdiction over Durr’s Complaint in the Court of Federal Claims. Absent a waiver of sovereign
immunity, any civil claim against the United States for monetary damages will be subject to the
Tucker Act if, “in whole or in part, it explicitly or in essence seeks more than $10,000,” Smalls v.
United States, 471 F.3d 186, 190 (D.C. Cir. 2006), and is “founded either upon the Constitution,
or any Act of Congress,” 28 U.S.C. § 1491(a)(2). Durr explicitly requests compensatory and
punitive damages of over $400 million, well above the monetary threshold for the Tucker Act to
apply. See Palacios v. Spencer, 906 F.3d 124, 126–27 (D.C. Cir. 2018). True, Durr also seeks
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various forms of non-monetary relief. But given his explicit request for monetary relief over
$10,000, the Court need not evaluate whether the “essence” of his Complaint is monetary or not
in nature. Schwalier v. Hagel, 734 F.3d 1218, 1221 (D.C. Cir. 2013). His Complaint therefore
belongs not in this Court, but in the Court of Federal Claims, just as Judge Jackson and the D.C.
Circuit have already held. See Durr, 828 F. App’x at 723; Durr, 2020 WL 491460, at *5.
Durr’s alternative bases for jurisdiction do not save his Complaint. He argues that
various provisions in 10 U.S.C. § 1552 entitle him to relief. See SAC ¶ 23. That statutory
section governs the correction of military records and authorizes the creation of boards for that
purpose. See 10 U.S.C. § 1552(i). Contrary to Durr’s allegations, that section provides no
independent judicial review of the decisions by a board to correct military records. Any review
would thus occur under the APA, see Coburn v. McHugh, 679 F.3d 924 (D.C. Cir. 2012), a
jurisdictional basis already denied to Durr by Judge Jackson’s decision. 2 See Durr, 2020 WL
491460, at *4. And even if § 1552 does allow judicial review of board decisions, it is an “Act of
Congress” providing Durr with “a substantive right to compensation.” Van Drasek v. Lehman,
762 F.2d 1065, 1071 (D.C. Cir. 1985). A claim under that statute for more than $10,000 in
damages thus would depend on the Tucker Act. See id.Durr also invokes 10 U.S.C. § 1558(f)(1). That provision allows judicial review of
decisions by a “selection board” only when that board’s recommendation has first been
considered by a “special board.” The statutory definition of “selection board” explicitly
2
Indeed, two courts of competent jurisdiction have already found against Durr on his claims that
the ABCMR erred and on his requests for monetary and injunctive relief. (Three if one counts
the D.C. Circuit’s summary affirmance of Judge Jackson’s decision.) Many issues brought by
Durr here have thus already been “actually and necessarily determined,” meaning res judicata
would likely bar Durr’s claims. See I.A.M. Nat’l Pension Fund v. Indus. Gear Mfg. Co., 723
F.2d 944, 946 (D.C. Cir. 1983).
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excludes, however, “a board for the correction of military records convened under section 1552.”
10 U.S.C. § 1558(b)(2)(iv). The ABCMR is such a board. See Dickson v. Sec’y of Def., 68 F.3d
1396, 1399 (D.C. Cir. 1995) (noting that ABCMR “derives its authority from” section 1552).
Thus, the ABCMR is not a “selection board” subject to 10 U.S.C. § 1558(f)(1), and that
provision does not govern judicial review of its decisions. Nor is the ABCMR a “special board”
for purposes of this case. See 10 U.S.C. § 1558(b)(1) (noting that a board for correction of
military records can be a “special board” when designated as such by the Secretary). According
to Durr’s own documents, the ABCMR is a “special board” only for decisions on
noncommissioned officers selected for involuntary separation under the Army’s Qualitative
Management Program. See Attachment to Plaintiff’s Reply at 19, ECF No. 17-1. Durr has not
alleged that he falls under that program and has therefore failed on multiple levels to show that
§ 1558(f) applies to his case.
Durr’s other alleged bases of jurisdiction are similarly unavailing. The “Federal Joint and
Several Liability Doctrine” is a tort doctrine, not an independent grant of jurisdiction to federal
courts. And 28 U.S.C. § 1331 only confers jurisdiction to adjudicate those causes of action
“arising from other sources” in the law. Montana-Dakota Util. Co. v. Nw. Pub. Serv. Co., 341
U.S. 246, 249 (1951). Durr then must do more than invoke § 1331, he also must assert “an
independent cause of action under which to proceed.” Marciano v. Shulman, 795 F. Supp. 2d 35,
38 (D.D.C. 2011) (quoting Citizens for Resp. and Ethics in Wash. v. Cheney, 593 F. Supp. 2d
194, 212 (D.D.C. 2009)). As already discussed, Durr fails to do so.
Finally, the Court declines to transfer Durr’s Complaint to the Court of Federal Claims.
Durr admittedly does not request a transfer, but the Court may transfer a case to cure a
jurisdictional defect if the transfer “is in the interest of justice.” 28 U.S.C. § 1631. Justice would
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not be served by such a transfer here. The Court of Federal Claims has already ruled that Durr’s
claims are barred by an applicable statute of limitations. See Ct. Fed. Cl. Order at 4. The court
also said that Durr’s appeals of the ABCMR’s decision “are of no consequence” to that
limitations term. Id. This Complaint hinges on one of those appeals, meaning that a transfer
would not change the Court of Claims’ decision. Durr’s claims would still be barred.
IV.
For these reasons, the Government’s Motion to Dismiss will be granted. That dismissal
will be with prejudice. The Court may dismiss a complaint with prejudice when a plaintiff has
repeatedly failed to cure the complaint’s deficiencies. See Firestone v. Firestone, 76 F.3d 1205,
1208 (D.C. Cir. 1996). Durr’s Complaint mirrors closely the one already rejected by Judge
Jackson. He asks for similar injunctive relief and for more in monetary damages even though
Judge Jackson and the D.C. Circuit have concluded that his claims do not belong in this Court.
More, Durr’s various motions to amend his Complaint have added only requests for more relief,
including for more money, despite those earlier decisions. See ECF No 21-1 at 1–2. Durr thus
has failed to cure his Complaint’s deficiencies, and that Complaint will therefore be dismissed
with prejudice. Based on that denial, Durr’s pending motion for summary judgment, see ECF
No. 27, will be denied as moot. A separate Order will issue.
2021.11.05
12:12:17 -04'00'
Dated: November 5, 2021 TREVOR N. McFADDEN, U.S.D.J.
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