Langan v. United States

3Jn toe Wniteb ~tatrs Court of jfrberal Oaims
Pro Se
No.17-1446
{Filed: June 11, 2019)

) Keywords: Military Pay; Voluntary
CHRISTOPHER P. LANGAN, ) Separation Pay; Tax Refund; Statute of
) Limitations; Motion to Reconsider;
Plaintiff, ) Motion for Relief from Judgment;
) Subject-Matter Jurisdiction
V. )
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )
)
--------------)

Christopher P. Langan, Goshen, NY, prose,

Andrew William Lamb, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, Washington, DC, with whom were Annie W .Morgan, Major, U.S. Air
Force, Steven J Gillingham, Assistant Director, Robert E. Kirschman, Jr., Director, and Joseph
H Hunt, Assistant Attorney General, for Defendant

OPINION AND ORDER

KAPLAN, Judge.

The prose plaintiff in this case is Christopher P. Langan, a former captain in the United
States Air Force. He filed this action on October 2, 2017, asserting a variety of claims for
monetary and other relief arising out of his service in-and separation from-the Air Force. The
ease is currently before the Court on Mr. Langan's motion for reconsideration and/or motion for
relief from judgment under Rules 59 and 60(b) of the Rules of the Court of Federal Claims
("RCFC"),

Mr. Langan seeks reconsideration of or other relief from a November 20, 2018 decision
issued by Judge Susan Braden. In that decision, Judge Braden dismissed the majority of the
claims in Mr. Langan's complaint for lack ofjllrisdiction. The dismissed claims included: claims
against defendants other than the United States; claims under the Military Whistleblower
Protection Act ("MWPA"), l OU.S.C. § I 034, and the Uniformed Services Employment and
Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301 et seq,; requests for certain equitable
relief (including an order directing the Air Force to award him several medals for distinguished
service); a tax refund claim; a claim under the Military Pay Act, 37 U.S.C. § 204, seeking
disability retirement pay; and ch1ims that Mr. Langan was entitled to receive additional active
duty pay for the final months of his service.
 On the other hand, Judge Braden concluded that the court did have jurisdiction over Mr.
Langan's claim that the Defense Finance and Accounting Service ("DFAS") had miscalculated
the amount of voluntary separation pay ("VSP") due to him. But other than correcting a minor
arithmetical error in the computation of his VSP-which resulted in partial judgment in the
amount of $2.72 for Mr. Langan-Judge Braden granted the government's motion for judgment
on the administrative record ("MJAR") as to that claim. Mem. Op. & Order ("Op."), ECF No.
34.

On December 26, 2018, Mr. Langan filed a motion to reconsider or for relief from
judgment. Pl. 's Mot. to Seek Review of J. ("Pl. 's Mot."), ECF No. 36. The next day, Judge
Braden issued an order directing the government to file a response to the motion. ECF No. 37.
The case was transferred to the undersigned on January 23, 2019. ECF No. 42. On February 28,
2019, the government filed its opposition to the motion. Def.'s Opp. to Pl.'s Mot. ("Gov't
Resp."), ECF No. 47.

For the reasons that follow, Mr. Langan's motion is GRANTED-IN-PART and
DENIED-IN-PART.

DISCUSSION

I. Standard of Review

RCFC 59 states that:

The court may, on motion, grant a new trial or a motion for reconsideration on all
or some of the issues-and to any pmiy-as follows: (A) for any reason for which
a new trial has heretofore been granted in an action at law in federal comi; (B) for
any reason for which a rehearing has heretofore been granted in a suit in equity in
federal couti; or (C) upon the showing of satisfactory evidence, cumulative or
otherwise, that any fraud, wrong, or injustice has been done to the United States.

RCFC 59(a)(l). The Federal Circuit has explained that under this rule "a court, in its discretion,
'may grant a motion for reconsideration when there has been an intervening change in the
controlling law, newly discovered evidence, or a need to correct clear factual or legal error or
prevent manifest injustice."' Biery v. United States, 818 F.3d 704, 711 (Fed. Cir. 2016) (quoting
Young v. United States, 94 Fed. Cl. 671,674 (2010)). "A motion for reconsideration under Rule
59(a) must be supported 'by a showing of extraordinary circumstances which justify relief."' Id.
(quoting Caldwell v. United States, 391 F.3d 1226, 1235 (Fed. Cir. 2004)).

Rule 60(b) similarly states that"[ o]n motion and just terms, the couti may relieve a party
or its legal representative from a final judgment, order, or proceeding for the following reasons:
(I) mistake, inadve1ience, surprise, or excusable neglect; ... or (6) any other reason that justifies
relief." "As a remedial provision, Rule 60(b) is to be 'liberally construed for the purpose of doing
substantial justice."' Patton v. Sec'y ofDep't of Health & Human Servs., 25 F.3d 1021, 1030
(Fed. Cir. 1994) (citing 7 James W. Moore & Jo Desha Lucas, Moore's Federal Practice
~ii 60.18[8], 60.19 (2d ed. 1993)). At the same time, "[t]he United States Supreme Court ... has
'cautioned that the Rule should only be applied in extraordinary circumstances."' Perry v. United

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States, 558 F. App'x 1004, 1006 (Fed. Cir. 2014) (quoting Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847,864 (1988)) (alterations omitted).

II. Mr. Langan's Motion

Although styled as a motion for reconsideration under RCFC 59(a)(l) and/or 60(b), a
substantial portion of Mr. Langan' s suppo1iing memorandum consists of a repetition of the
arguments previously presented when his case was before Judge Braden for decision on the
government's dispositive motions. It is well established that a motion for reconsideration is not a
vehicle for making the same arguments that have already been considered and resolved against
the movant in the original opinion. See Four Rivers Invs., Inc. v. United States, 78 Fed. Cl. 662,
664 (2007) (explaining that "motions for reconsideration are not intended to allow a party to
reassert arguments that the Comi already has considered") (citations omitted). The Comi,
therefore, will consider only those points set forth in Mr. Langan's motion which take direct
issue with the November 18, 2018 decision itself.

A. Dismissal of Military Pay Claims Based on Statute of Limitations

In his amended complaint, Mr. Langan sought an award ofbackpay under the Military
Pay Act, 37 U.S.C. § 204. He claimed, among other things, that he was entitled to be paid for six
days that he spent in jail in April and June of201 l and for some forty-five days between August
and September of 2011 when he took unpaid "excess leave," allegedly "under duress." Judge
Braden concluded that these claims were barred by the Tucker Act's six-year statute of
limitations. See 28 U.S.C. § 2501. Mr. Langan seeks reconsideration of this determination. Pl.'s
Mot. at 2-10.

The Comi agrees that this aspect of the decision merits reconsideration because its
conclusion was based on clear factual error. Claims for backpay accrue on the date that a service
member is discharged or separated from the service. See Martinez v. United States, 333 F.3d
1295, 1303 (Fed. Cir. 2003) (en bane). Mr. Langan's separation was effective October I, 2011.
Am. Comp!. at 31, ECF No. 11. The statute of limitations, accordingly, was set to expire on
October I, 2017, six years later. But the prior decision did not take account of the fact that
October I fell on a Sunday in 2017. Under RCFC 6, when "computing any time period specified
... in any statute that does not specify a method of computing time ... if the last day is a
Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that
is not a Saturday, Sunday, or legal holiday." Therefore, the six-year limitations period set forth in
28 U.S.C. § 250 I expired on Monday, October 2, 2017-the day Mr. Langan filed his complaint.
His claims for backpay were therefore not barred by the statute of limitations.

Nonetheless, on the merits, the Air Force Board for the C01Tection of Military Records'
("BCMR") decision rejecting ivlr. Langan's claims for backpay was neither arbitrary and
capricious, nor contrary to law. Therefore, on reconsideration, the Comi will vacate the dismissal
without prejudice of the backpay claims and instead enter judgment on the administrative record
against Mr. Langan.

First, there is no merit to Mr. Langan's contention that the Air Force was required to
provide him with active duty pay during the six days in April and June of201 l when he was

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incarcerated. As Judge Braden found in the context of addressing Mr. Langan's VSP-related
claims, the six days Mr. Langan spent in jail were properly treated as unexcused absences
without leave, because-notwithstanding that the charges against him were dismissed-his arrest
was based on several acts of misconduct. See Op. at 19-20 (citing DoD Fin. Mgmt. Reg. 7A, Ch.
1 (Jan. 2010), at 1-50, providing that absence due to civil confinement will be excused "if the
service member's charges are dismissed and it is clear that his arrest was not due to misconduct")
(emphasis supplied). Mr. Langan has not presented the Court with any basis for revisiting that
determination either in the context of his claims for active duty pay or his claim for an
adjustment of his VSP to reflect the time spent in jail as time in paid duty status. See Pl.'s Mot.
at 10-22; 35--40.

As noted, Mr. Langan has also alleged that he is entitled to backpay covering some forty-
five days between August and September of201 l when he agreed to be placed on unpaid
"excess leave" so that he could begin attending law school classes in California before his date of
separation from the Air Force. Mr. Langan contends that his agreement to take unpaid "excess
leave" was made under "duress" resulting from his commanding officer's denial of his request to
instead be placed on permissive temporary duty ("PTDY"). Am. Comp!. at 43. This claim was
properly rejected by the BCMR.

PTDY is "an authorized absence" that a unit commander may (but is not required to)
approve in specific circumstances expressly set forth in Air Force regulations. See Air Force
Instruction 36-3003, § 12.1 & Table 7 (Oct. 26, 2009). It does not appear to the Coutt that
attending law school classes is one of the circmnstances for which PTDY may be provided under
the Air Force regulations. But in any event, the decision whether to grant PTDY requests under
the regulations in effect when Mr. Langan agreed to take "excess leave" was left to the discretion
of unit commanders. See Air Force Instruction 36-3003, § 12.3.9 (Oct. 26, 2009) (explaining that
unit commanders "[m Jay deny PTDY requests without referring them to higher-level
headquarters"). Mr. Langan cites no regulation or other legal authority that affords service
members a legal entitlement to be placed on PTDY under any circumstances.

Further, Mr. Langan's claim that he agreed to be placed on excess leave under "duress"
lacks merit as a matter of law. Mr. Langan was not pressured by the Air Force to agree to be
placed on excess leave. He chose to be placed on excess leave so that he would be able to stait
law school on time and before he was discharged from the Air Force. But for his personal
decision to begin law school before he was discharged, he would have remained on active duty
and continued to receive active duty pay. His argument that he was placed on excess leave
involuntarily and under duress is therefore clearly without merit. Cf. Jenkins v. Merit Sys. Prot.
Bd., 911 F.3d 1370, 1375 (Fed. Cir. 2019) ("An involuntary retirement is an adverse
employment action 'where an agency imposes the terms of an employee's resignation, the
employee's circumstances permit no alternative but to accept, and those circumstances were the
result of improper acts of the agency."') (quoting Schultz v. U.S. Navy, 810 F.2d 1133, 1136
(Fed. Cir. 1987)); N. Star Steel Co. v. United States, 477 F.3d 1324, 1334 (Fed. Cir. 2007)
(holding that a claim of duress brought by a government contractor "requires a showing that the
Government's action was wrongful" and that "circumstances permitted no other alternative")
(citations omitted).

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 In sh01i, Mr. Langan's claims related to excess leave and his entitlement to be paid while
he was incarcerated should not have been dismissed on statute-of-limitations grounds.
Nonetheless, for the reasons set forth above, the government is entitled to judgment on the
administrative record as to both claims.

B. Tax Refund Claims

Mr. Langan argues that Judge Braden failed to address two of his three tax refund claims.
The first is a claim that he was wrongfully taxed $1067.42 in tax year 2011 for a TSP transaction
that occurred in December of 2011. 1 Although not entirely clear, it appears that Mr. Langan
believes that the December 2011 TSP transaction should have been subject to taxation in tax year
2012 because the Form 1099-R reflecting the transaction was not issued until after April 2012,
and he did not receive it until after November 2012. Am. Comp!. at 64. Mr. Langan's second tax
claim is that he is due a refund of $413 for tax year 2011 because the IRS concluded in a May
16, 2017 notice that it should not have treated a cancellation of a debt that Mr. Langan owed to
Chase Bank as income to him. PL 's Mot. at 42.

The Court agrees that these claims were not addressed in the prior decision. 2 Nonetheless,
for the reasons set forth below, it finds that Mr. Langan's tax refund claims must be dismissed
under RCFC 12(b)(6) for failure to state a claim.

The statutory framework governing this Court's tax refund jurisdiction is set f01ih in the
prior decision. Op. at 9. To summarize, l.R.C. § 7422(a) requires that a taxpayer file an
administrative refund request before he may bring an action in comi. l.R.C. § 651 l(a) states
that-for taxes requiring a return-a taxpayer must file such a request no later than "3 years
from the time the return was filed or 2 years from the time the tax was paid, whichever of such
periods expires the later." And, l.R.C. § 6532(a)(l) states that a taxpayer must file suit within
two years of the date the Secretary mails a notice of disallowance covering the disputed claim.

1 "TSP" refers to the Thrift Savings Plan, which is a federal retirement savings program for
military personnel and many other federal employees.
2 The Court notes that, on the other hand, Judge Braden did address Mr. Langan's claim that the
Internal Revenue Service unlawfully withheld a p01iion of his tax refund for tax year 2011 in
order to satisfy his outstanding debt of $41,591.85 to DFAS. She concluded that the court lacked
jurisdiction over that claim to the extent that it had been "brought to restrain or review a
reduction authorized by subsection ... (d)" of26 U.S.C. § 6402 authorizing IRS to collect debts
owed to other federal agencies. Op. at 13-14 (citing 26 U.S.C. § 6402(g)). And while§ 6402(g)
also states that it "does not preclude any legal, equitable, or administrative action against the
Federal agency or State to which the amount of such reduction was paid," Judge Braden
exercised the court's Tucker Act jurisdiction to adjudicate the validity of the underlying debt to
DF AS in the context of determining Mr. Langan 's military pay claims.

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 On August 5, 2013, the IRS assessed additional tax against Mr. Langan based on upward
revisions to his 2011 taxable income. Am. Comp!. Ex. K, at 179, ECF No. 11-3. 3 Those upward
revisions were based on unreported income derived from two sources: (I) a cancellation of debt
related to Mr. Langan's Chase Bank account; and (2) a taxable distribution of funds from his
TSP account. Id. at 180. 4 It appears that Mr. Langan eventually paid the tax for these additional
items by check on February 8, 2017. Id. Ex. L, at 200.

On February 21, 2017, Mr. Langan submitted an administrative refund request to the IRS
which covered these items. See id. at 212 (notice of disallowance referring to a letter dated
"02/21/2017"). On May 16, 2017, the IRS mailed him a notice of disallowance denying the TSP
claim but approving the $413 claim related to the debt cancellation by Chase Bank. Id. at 212-
14. The notice advised Mr. Langan that "[a] request for adjustment was forwarded for processing
by this office and will result in a decrease in income tax of($413.00-)." Id. at 213.

The Court finds that Mr. Langan's tax refund claims were timely filed for purposes of
invoking this Court's jurisdiction. He paid the pe1iinent taxes on February 8, 2017 and filed an
administrative refund claim on February 21, 2017, within the two-year time limit set forth in
I.R.C. § 65 ll(a). The IRS mailed its notice of disallowance on May 16, 2017. Mr. Langan then
filed suit on October 1, 2017, within the two-year time limit set fmih in I.R.C. § 6532(a)(l).

Turning to the merits, Mr. Langan's TSP-based claim fails for the reasons stated in the
IRS's notice of disallowance; namely, that the "taxable year for income is based on when the
income is paid or when, in this case, it became income." Am. Comp!. Ex. L, at 212. The date on
which Mr. Langan received the Form 1099-R that memorialized the transaction does not
determine the tax year to which the income is attributable. Mr. Langan has not provided any
legal basis for challenging this conclusion.

As for the $413 adjustment the IRS agreed to make to Mr. Langan's tax liability for 2011,
the Court understands Mr. Langan to be complaining not that the IRS failed to make the
adjustment, but that the adjustment did not result in him receiving a refund check. As the
government observes, however, the $413 adjustment was subject to the offset authorized to
satisfy Mr. Langan's outstanding debt to the United States arising out ofDFAS's overpayment
on his VSP. Gov't Mot. at 37, ECF No. 17 (citing ECF No. 11-1 at 34, stating that the
Department of Treasury "intended to collect the debt by intercepting any Federal payments made
to you, including tax refunds"). Mr. Langan, for his pmi, does not claim otherwise. Indeed, the
record shows that as of February 21, 2018, some eight months after the IRS indicated that it
would adjust his tax liability by $413, he still owed DF AS over $12,000. App. to Gov't Mot. at

3Page numbers cited in the exhibits to the amended complaint correspond with the ECF-stamped
numbers at the top of the page.
4
The IRS appears to have revised its assessment several times between August 5, 2013 and
Februm·y 8, 2017 at Plaintiffs request. Am. Comp!. Ex. L, at 197 (December 12, 2016 revised
assessment); id. at 208 (February 13, 2017 revised assessment).

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A65, ECF No. 17-1. The Comi concludes, therefore, that he has failed to state a claim that he is
entitled to a refund of $413.

C. Moving and Travel Vouchers

Mr. Langan's motion for reconsideration includes allegations that DFAS incorrectly
calculated the amount of the reimbursement due to him under a travel voucher and a "personally
procured move voucher." Pl. 's Mot. at 40; ECF No. 26-1 at 395-96 (travel voucher); ECF No.
26-1 at 410 (personally procured move voucher). These claims were referenced only in the
prayer for relief section of his amended complaint and were not addressed by in the prior
decision. There are no facts offered in support of the claims; nor does Mr. Langan identify the
relevant provisions of law or regulation upon which he relies. The Couti concludes, therefore,
that he has failed to establish the prerequisite to this Couti's exercise of jurisdiction under the
Tucker Act-namely, a money-mandating source of law or regulation. I-le has also failed to state
a claim for relief regarding these items. His request for reconsideration of the prior decision as to
these claims therefore lacks merit.

D. Property Damage

In his amended complaint, Mr. Langan alleged that when he moved from Florida to
California, the Air Force movers "caused over $1,400 of damage to [his] property and thus the
Defendant owes [him] $1,400." Am. Comp!. at 87. I-le repeats this claim in his motion for
reconsideration. Pl. 's Mot. at 41.

As with the voucher claims, the amended complaint provides no explanation of the
factual or legal basis for this claim. To the extent that Mr. Langan is alleging the commission of
a tort, this Court lacks jurisdiction under the Tucker Act to adjudicate it. See 28 U.S.C.
§ 1491(a)(l) (conferring jurisdiction to adjudicate "cases not sounding in tmi"); U.S. Marine,
Inc. v. United States, 722 F.3d 1360, 1372 (Fed. Cir. 2013). And if there is some other basis for
the claim based on a money-mandating statute or regulation, Mr. Langan has not identified it.
The Comi, accordingly, concludes that reconsideration of Judge Braden's dismissal of this claim
is not warranted.

E. Transfer Request

Lastly, Mr. Langan requests that this Court transfer his claims under the MWPA and
USERRA, as well as his claim for a refund of taxes withheld under the Treasury offset program,
to another court that would have jurisdiction over those claims. Pl. 's Mot. at 44. In support of
that request, he cites 28 U.S.C. § 1631, which provides in pe1iinent part that "[w]henever a civil
action is filed in a court ... and that court finds that there is a want of jurisdiction, the comi
shall, if it is in the interest of justice, transfer such action or appeal to any other such court (or,
for cases within the jurisdiction of the United States Tax Comi, to that comi) in which the action
or appeal could have been brought at the time it was filed or noticed."

As the couti of appeals has observed, "[a] case may be transferred under section 1631
only to a court that has subject matter jurisdiction." Jan's Helicopter Serv., Inc. v. F.A.A., 525
F.3d 1299, 1303 (Fed. Cir. 2008). In this case, no court would have jurisdiction over Mr.
Langan's claim under USERRA because he has not exhausted his administrative remedies for

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such a claim. See Dew v. United States, 192 F.3d 366, 372 (2d Cir. 1999) (holding that
USERRA "does not authorize a private [] action against the Federal Government, as an
employer, in federal district court; rather, it confers jurisdiction upon the Merit Systems
Protection Board"). Similarly, as described in footnote 2, above, no court has jurisdiction to hear
Mr. Langan's claim for a refund of taxes under the Treasury offset program. See 26 U.S.C.
§ 6402(g). Instead, Mr. Langan is entitled to bring an action against the agency that holds the
debt, which he has done in this case (albeit unsuccessfully).

Finally, the MWPA "provides for a comprehensive administrative review scheme over
claims of retaliation-specifically, the correction of military records and disciplinary actions as
remedies for prohibited actions-but no private right of action for money damages, which could
be enforced in the Court of Federal Claims." See Bias v. United States, 722 F. App'x 1009, 1014
(Fed. Cir. 2018); see 10 U.S.C. § 1034(c)-(h) (providing for an investigation by the Inspector
General, followed by review by the BCMR, followed by review by the Secretary of Defense).
"Indeed," the court of appeals has observed, "no judicial review is available under the MWPA
because Congress precluded alternative fora by providing a specific form of redress in the
statute." Bias, 722 F. App'x at 1014 (citations omitted). Because there are no other comis that
would have jurisdiction over any of these claims, there is no basis to transfer them under 28
U.S.C. § 1631.

CONCLUSION

For the foregoing reasons, Plaintiffs motion to reconsider or for relief from judgment is
GRANTED-IN-PART and DENIED-IN-PART. The Clerk of the Comi shall VACATE the
judgment entered on November 28, 2018 (ECF No. 35). Further, the Clerk shall enter judgment
as follows:

The government's motion for dismissal and for judgment on the administrative record is
GRANTED-IN-PART and DENIED-IN-PART. The Clerk is directed to enter judgment on the
administrative record for the government as to Plaintiffs claim that he is entitled to backpay
covering periods of time that he spent incarcerated or on excess leave. The Clerk is directed to
enter judgment on the administrative record for Plaintiff as to his claim that the Air Force
miscalculated the amount of his voluntary separation pay insofar as he was entitled to an
additional $2. 72; in all other respects judgment is entered for the government as to that claim.
The case shall be remanded to the BCMR for correction of Plaintiffs records to reflect the
proper amount of voluntary separation pay due to him, including the additional $2. 72 discussed
herein.

In addition:

• Plaintiffs claim that he is entitled to additional reimbursement based on two moving
vouchers he submitted in 2011 is DISMISSED without prejudice for lack of
jurisdiction.

• Plaintiffs claim for an award of$1400 for damage to his personal prope1iy during his
move from Florida to California in 2011 is DISMISSED without prejudice for lack of
jurisdiction.

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• Plaintiffs claim that he is entitled to a refund of$1480.42 for tax year 2011 is
DISMISSED for failure to state a claim.

• Plaintiffs claims against defendants other than the United States are DISMISSED
without prejudice for lack of jurisdiction.

• Plaintiffs claims under the Uniformed Services Employment and Reemployment Rights
Act are DISMISSED without pre,judice for lack of jurisdiction.

• Plaintiffs claims under the Military Whistleblower Protection Act are DISMISSED
without prejudice for lack of jurisdiction.

• Plaintiffs claim that he is entitled to disability retirement pay is DISMISSED without
prejudice for lack of jurisdiction.

• Plaintiffs claim that he is entitled to a refund of taxes withheld under the Treasury offset
program is DISMISSED without prejudice for lack of jurisdiction.

• Plaintiffs request that this Court transfer his claims under the Military Whistleblower
Protection Act and the Unformed Services Employment and Reemployment Rights Act,
as well as his claim for a refund of taxes withheld under the Treasury offset program, is
DENIED.

IT IS SO ORDERED.

ELAINE D. KAPLAN
Judge

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