Ex-Military Smackdown: Court of Federal Claims Cracks the Whip Against “Razor’s Edge of Frivolity” Claims

In five recent cases last week, two of which are by ex-military members , the Court of Federal Claims has dismissed the cases because “Plaintiff’s counsel has submitted filings which contain numerous errors and exhibit a fundamental misunderstanding of this Court’s jurisdiction.“ (emphasis added).  The court referred the matters, along with three other cases, to the Chief Judge under Rule 83.2(d), the rule governing diciplinary proceedings for “misconduct or allegations of misconduct” by the attorney.

The two cases involving ex-military plaintiffs are Janaskie v. United States, No. 06-602C (Fed. Cl. July 31, 2007) and Pope v. United States, No. 06-446C (July 31, 2007).  The other three cases were Locke v. United States, No. 06-629T (Fed. Cl. July 10, 2007), Leshin v. United States, No. 06-637T (Fed. Cl. Jan. 11, 2006), and Cherbanaeff v. United States, No. 06-640T (Fed. Cl. July 12, 2007).  Four, and I would presume all five of the cases have the same plaintiffs’ counsel (though I cannot locate the fifth, Leshin). 

In the two miltary cases, involving a retired U.S. Air Force senior master sergeant and a discharged member of the California National Guard, the plaintiffs both claimed that the Government was required to compensate them for violations of the Uniform Code of Military Justice.  Problem is, in neither case did the plaintiffs give any facts in support of their claims, nor did they cite what provisions of the UCMJ were violated.  In both cases the plaintiffs, via counsel, made the bald claim that they were subject to a ” ’sham’ non-judicial/Admininstrative hearing [that] violated multiple military regulations, at the same time, violating the spirit of the UCMJ.”  The Janaskie court called this ludicrous allegation “indecipherable,” and Pope called the allegations “vague [and] cryptic . . . in that they fail to specify why conduct allegedly violated the UCMJ and, what action was taken against Plaintiff under the UCMJ.”

In addition, the plaintiffs variously asked for (1) veterans’ disability benefits (the correct forum is the Court of Appeals for Veterans Claims), (2) disability retirement benefits and compensation (without as required even requesting retirement pay, or first exhausting administrative remedies by requesting correction of records with the Air Force Board for Correction of Military Records), (3) back pay under the Back Pay Act, 5 U.S.C. § 5596 (which does not apply to Army National Guard members), (4) a finding of breach of contract (it’s well settled that statute, not contract, governs the relationship between servicemember and government with regard to retirement benefits), (5) a finding of a violation of Due Process (but due process violations don’t obligate the government to pay money damages–and monetary compensation, of course, is the entire purpose of the Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1491), (6) a finding of a Fifth Amendment taking (wrong again–it’s settled that retirement benefits aren’t property interests for purposes of the Takings Clause), (7) the Federal Tort Claims Act (wrong court again), and (8) reinstatement in the California National Guard (which counsel brought pursuant to the Administrative Procedure Act–again, completely outside the court’s jurisdiction).  None of plaintiffs’ claims fell under the jurisdiction of the Court of Federal Claims. 

I sadly wonder how much the ex-military members had to pay this attorney–regardless of their merit, and in spite of the money the ex-servicemembers paid the attorney–only to discover that all of their many claims were brought in the wrong court?

The court stated, kindly, that the filings “walk on the razor’s edge of frivolity,” before sending the five cases to the Chief Judge for possible disciplinary action.

Lime out