United States District Court, D. Massachusetts
Nathaniel M. Gorton, United States District Judge
case arises out of the non-honorable discharge of plaintiff
Michael Andrew Leeper (“plaintiff”) from the
United States Army in 1963. Plaintiff filed suit in 2015
contesting that discharge but his case was dismissed in
August, 2016. Leeper v. Battery A Third Division, et
al., No. 15-13791-NMG (D. Mass. Filed Nov. 9, 2015).
being easily dissuaded, Mr. Leeper filed his present
complaint in February, 2017, alleging in nearly identical
terms used in his first complaint, that the discharge was a
violation of his due process rights and that he consequently
suffered damages in the amount of $10 million.
26, 2017, defendants Vincent Viola, Secretary of the Army,
the United States Attorney's Office and Shanna L. Crowin,
counsel for the Army (“defendants”) filed a
motion to dismiss plaintiff's complaint for lack of
subject matter jurisdiction and failure to state a claim upon
which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(1)
and (6). Plaintiff has subsequently filed motions to amend
his complaint by adding claims under the Federal Tort Claims
Act (“FTCA”), under 42 U.S.C. § 1983 and for
trespass. For the reasons that follow, the motion to dismiss
will be allowed and the motions to amend will be denied as
Defendants' Motion to Dismiss
move to dismiss plaintiff's complaint on the grounds that
1) it is barred by issue preclusion, 2) this Court lacks
subject matter jurisdiction and 3) the statute of limitations
arguments in support of their motion to dismiss are well
taken. First, the suit is barred by issue preclusion: the
plaintiff filed, essentially, the same suit one year ago and
has not alleged any new facts or provided a cure for the lack
of subject matter jurisdiction then and now. See Lowe v.
United States, 79 Fed.Cl. 218 (2007).
this Court lacks subject matter jurisdiction. Plaintiff seeks
monetary damages from the Secretary of the Army, but there is
no plausible allegation that sovereign immunity has been
waived. Moreover, the prerequisites for diversity
jurisdiction are lacking and sovereign immunity is not waived
automatically for a claim for monetary damages based upon a
federal question. 18 U.S.C. §§ 1331, 1332; See
also Sibly v. Ball, 924 F.2d 25, 2829 (1st Cir. 1991).
Nor does the Administrative Procedure Act, 5 U.S.C. §
702, provide a cause of action for suits seeking monetary
damages. See Com. Of P.R. v. U.S., 490 F.3d 50, 57
(1st Cir. 1987).
plaintiff's claims, which are based upon events that
occurred in 1963, are time-barred. Although the Tucker Act
gives the Court of Federal Claims jurisdiction over non-tort
constitutional claims against the United States for over $10,
000, transfer to that Court would be futile because
plaintiff's claims have been brought nearly one-half of a
century after the running of the Tucker Act's six-year
statute of limitations. 28 U.S.C. § 2501. The three-year
statute of limitations for plaintiff's
Bivens' claims has also long since expired.
Rossiter v. Potter, 357 F.3d 26, 34 n.7 (1st Cir.
Plaintiff's Motion to Amend and to Add a Claim Under
moves to amend his complaint to add a claim under the FTCA.
Defendants counter that plaintiff's proposed FTCA claim
is without legal merit and accordingly should be denied as
futile. This Court agrees that plaintiff's motion to add
a claim under the FTCA is futile because he has failed 1) to
exhaust his administrative remedies under the FTCA and 2) to
notify the Department of the Army of his claim within two
years as required in the statute. See McNiel v. United
States, 508 U.S. 106, 113 (1993); See also Gonzales
v. United State, 284 F.3d 281, 288 (1st Cir. 2002).
Plaintiff's Motion to Amend and Add a Claim of
also moves to amend his complaint to add a state tort claim
of trespass. That motion will be denied as futile because
such a claim is time-barred. Under Massachusetts law, M.G.L.
c. 260 § 2(A), a tort action must be commenced within
three years of the accrual of the action. See
Khatchatourian v. Encompass Ins. Co. of Massachusetts,
935 N.E.2d 777, 780 (Mass. App. Ct. 2010). In the present
case, the purported trespass occurred in 1963 and is thus
outside of the applicable statute of limitations.
Plaintiff's Motion Amend and Add a 42 U.S.C. ...