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LONG v. UNITED STATES

August 19, 1985

JAMES A. LONG, Plaintiff against THE UNITED STATES OF AMERICA, DEPARTMENT OF DEFENSE and DEPARTMENT OF THE ARMY, Defendants


The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

 Defendants, the Department of Defense and the Department of the Army *fn1" have moved for summary judgment dismissing plaintiff's complaint. Plaintiff has cross-moved for an order granting him leave to amend his original complaint. For the reasons set forth below, defendants' motion for summary judgment is granted and plaintiff's cross-motion to amend his complaint is denied.

 Military Background

 Plaintiff was enlisted in the Army from August 30, 1955 through July 26, 1960, when he was separated with an undesirable discharge for unfitness based on "frequent acts of a discreditable nature with military authorities." Plaintiff subsequently sought relief from the Army Discharge Review Board ("ADRB") in 1960, 1969 and 1979, stating that he should have been discharged for unsuitability due to alcoholism, rather than unfitness. He requested an upgrade of his discharge to honorable, or, in the alternative, a medical retirement.

 In 1979 the ADRB granted plaintiff's application and upgraded his discharge to a general discharge under honorable conditions. The ADRB concluded that plaintiff had been properly discharged but based its decision in part on its findings that the Army policy on alcohol abuse had changed and that alcohol abuse may have contributed to some of plaintiff's acts of misconduct.

 Plaintiff subsequently applied to the Army Board of Correction of Military Records ("ABCMR") on March 30, 1981, requesting that his records be changed to show that he was medically retired, or, alternatively, that his discharge be further upgraded to an honorable discharge. On August 11, 1982 the ABCMR denied his application. Subsequent to this denial, on November 4, 1982, plaintiff commenced this action.

 Procedural History

 Defendants' motion to dismiss or for summary judgment was originally filed in September 1983 and was subsequently adjourned numerous times at plaintiff's request. In January 1985 plaintiff filed a cross-motion for leave to amend his complaint. In March 1985, defendants filed a renewed motion for summary judgment. Defendants' motion is based on several grounds: (1) this Court lacks subject matter jurisdiction because sovereign immunity bars plaintiff's claims against the Department of Defense and the Department of the Army; (2) plaintiff has no tort remedy under the Federal Tort Claims Act; *fn2" (3) plaintiff's claims are barred by the statute of limitations; (4) plaintiff's claims are barred by the doctrine of laches; and (5) plaintiff has failed to state a claim upon which relief can be granted.

 In his original pro se complaint, plaintiff alleges two causes of action. First, plaintiff claims that the actions of army officials in taking disciplinary actions against him for "administrative elimination" were contrary to applicable Army regulation and in violation of his constitutional and civil rights. Plaintiff alleges that these actions make out a "prima facie tort" which has caused him irreparable harm and has damaged his reputation. Plaintiff seeks $5 million in compensatory damages for these alleged violations. Second, plaintiff claims that the charge of sodomy filed against him by former defendant Captain Logan was maliciously fabricated. He also claims that his subsequent conviction, by a special court-martial, adversely affected the administrative determination to discharge him for unfitness, and that as a result of the accusation of homosexuality he has been stigmatized and cause great embarrassment. Plaintiff seeks $15 million in punitive damages for these alleged wrongdoings.

 Plaintiff's proposed amended complaint attempts to remedy certain errors in the original complaint and to clarify the issues raised therein. In the proposed amended complaint, plaintiff characterizes his claims as follows. First, he alleges that he has established a service-connected physical disability (chronic alcoholism), and that the refusal of the ABCMR to recognize his disability and award his disability retirement benefits was arbitrary and capricious and not supported by substantial evidence. Second, plaintiff claims that the refusal of the ADRB to grant him a disability retirement in 1979 when it upgraded his discharge was similarly arbitrary and capricious.

 Discussion

 1. Motion for Summary Judgment

 Defendants correctly point out that one cannot sue the United States without its consent and a court does not have jurisdiction over a suit against the United States to which it has not consented. United States v. Sherwood, 312 U.S. 584, 588, 85 L. Ed. 1058, 61 S. Ct. 767 (1941). Suits for money damages against the United States, its agencies and instrumentalities, cannot be maintained unless there is an "unequivocally expressed" waiver of sovereign immunity. United States v. Testan, 424 U.S. 392, 399-401, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976). Such a waiver is most often found in the form of a statute. For example, 28 U.S.C. ยง 2410 waives sovereign immunity in suits challenging tax liens and permits a taxpayer to contest the validity of a tax lien and levy so long as he does not seek collaterally to attack the underlying tax assessment. There has been no such waiver in the instant case. Therefore, to the extent ...


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