Freeman v. United States
2011 U.S. Claims LEXIS 607
Fed. Cl.2011Background
- Major Freeman, a Georgia National Guard AGR major, challenged termination of his aviation service and loss of ACIP, seeking records correction and back pay; he also sought early promotions and back pay for those promotions.
- The government moved to dismiss for lack of jurisdiction, failure to state a claim, and judgment on the administrative record; Freeman then sought voluntary dismissal or transfer to District Court.
- Initially, Freeman had a mixed record: FEB and NGB decisions terminated his aviation status in 2002, followed by a 2004 ABCMR denial, with downstream administrative appeals.
- Freeman was promoted to Major in the state in 2008, with federal recognition and pay in the higher grade not effective until December 2, 2008; the time for pay effects was governed by state-federal dual status rules and AR 135‑155/NG Regulations.
- The court ultimately denied the government’s motions, dismissed the aviation/ACIP claims for lack of jurisdiction (statute of limitations and SCRA tolling issues), and denied promotion-related monetary relief; transfer to district court was not warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction for ACIP/aviation-service claims | Freeman contends tolling via SCRA preserves his claim. | ACIP/aviation claims accrued in 2002; SCRA tolling does not apply. | Claims dismissed for lack of jurisdiction; SCRA tolling insufficient. |
| Voluntary dismissal request | Requests voluntary dismissal without prejudice. | Government opposes dismissal; case should proceed on merits. | Denied; voluntary dismissal inappropriate. |
| Back ACIP/termination of flight status reviewability | NGB/ABCMR errors warrant review and back pay. | Claims barred by statute of limitations and non-justiciable promotion issues. | Dismissed; longitudinal review barred and non-justiciable. |
| Promotion-related monetary relief | Seeks back pay and constructive promotions. | No statutory/regulatory entitlement to promotions; pay aligns with actual rank. | Dismissed; no legally cognizable claim to back pay or promotions. |
| Transfer to district court under 28 U.S.C. § 1631 | District court review permissible for timely ABCMR challenge and monetary claims. | No timely, district-court remedy; bifurcated relief not transferable. | Transfer denied; incomplete jurisdiction would prevent proper relief. |
Key Cases Cited
- Martinez v. United States, 333 F.3d 1295 (Fed.Cir.2003) (accrual and tolling principles for Tucker Act claims, including SCRA tolling)
- Fisher v. United States, 402 F.3d 1167 (Fed.Cir.2005) (requires a separate substantive source for money damages under Tucker Act)
- Adair v. United States, 497 F.3d 1244 (Fed.Cir.2007) (construction of statutes creating monetary rights for service members)
- Reilly v. United States, 93 Fed.Cl. 643 (Fed.Cl.1999) (promotion-related pay claims and authority to review military pay decisions)
- John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008) (jurisdictional bar and tolling respects Tucker Act)
- Hopland Band of Pomo Indians v. United States, 855 F.2d 1573 (Fed.Cir.1988) (statutory limitations treated as jurisdictional)
- Gould, Inc. v. United States, 67 F.3d 925 (Fed.Cir.1995) (standard for failure-to-state-a-claim dismissal)
- Fala Corp. v. United States, 53 Fed.Cl. 90 (Fed.Cl.2002) (withdrawal considerations in statutory context)