Summary:       The Court dismissed a plaintiff’s claims against the United States and the State of North Dakota, holding: (1) the plaintiff had not sustained his burden of showing that the United States had waived its sovereign immunity; (2) the plaintiff’s claims against the State were stale; and (3) his request for monetary damages from the State was barred under the Eleventh Amendment waiver of sovereign immunity.

Case Name: Sailer v. Dept. of US Army, et al.

Case Number: A1-04-53

Docket Number: 9

Date Filed: 7/1/04

Nature of Suit: 320

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

SOUTHWESTERN DIVISION
 

            Before the Court is the Department of the U.S. Army and the Department of Veterans Administration’s Motion to Dismiss filed on May 17, 2004. Also before the Court is the State of North Dakota’s Motion to Dismiss filed on May 27, 2004. For the reasons set forth below, the motions are granted.

I.         BACKGROUND

            On May 4, 2004, the pro se plaintiff, James Sailer, filed a complaint setting forth the following claim:

            On July 7, 1971, at the U.S. Army recruiting station in Dickenson (sic), N.D., the Dept. of the Armies recruiting personnel Norman A. Bruce, libeled the Enlistment Contract–Armed Forces of the U.S., DD Form 4. On 14 July 1971 at the Armed Forces Induction Center in Fargo, N.D., the U.S. Armies career counselor Kenneth L. Moore and the enlisting officer 1 Lt. R.F. Lee, also libeled the document, which resulted in the lose of promises made before any signing took place on the contract. On 18 Sept. 1973, their military judge libeled the judgment on Special Court-Martial Order #59, that was at Ft. Lewis, Washington. That on 25 Oct. 1973, their discharge officer 1 Lt. R.E. Broome libeled the Armed Forces of the U.S. Report of Discharge document, DD Form 214, that was also at Ft. Lewis Washington. The above resulted in slander and a discharge that wasn’t honor, depriving me the plaintiff of my Armed Forces career endeavor and slandered my name in the civilian job market without due process of law. On 15 Oct. 1984, their Army Discharge Review Board and Vincent C. Gomez libeled the determination document and the discharge DD Form 214 wasn’t honor that was at Washington, D.C.

            On 30 March 1976 at Mandan, ND., the judge William G. Engelter, libeled a commitment order and their sheriff Leo Snider didn’t preserve order and carried the order out which began the course of criminal mental malpractice at the V.A. hospital at Ft. Meade, South Dak., on 31 March 1976, which caused the permanent physical damage to my person . . . .

            On May 17, 2004, the federal Defendants filed a Motion to Dismiss on the following grounds: (1) lack of subject matter jurisdiction; (2) failure to state a claim upon which relief can be granted; and (3) failure to exhaust administrative remedies.

            On May 27, 2004, the State of North Dakota filed a Motion to Dismiss on the grounds that (1) the Eleventh Amendment bars claims for money damages against the State; (2) the action is barred by the statute of limitations; and (3) the action is barred by the doctrines of res judicata and collateral estoppel.

            According to the Defendants, this case relates to the same claims brought by James Sailer in an earlier lawsuit filed in the 1980’s in the District of North Dakota, Civil No. A3-86-01. The record reveals that Civil No. A3-86-01 was dismissed by the Court on July 14, 1986, “with prejudice except for any subsequent well pleaded, substantive claims over which the court may have jurisdiction.” Sailer filed a petition seeking reconsideration in Civil No. A3-86-01 in 2003. The petition was dismissed by order of the Court on March 5, 2003.

            Sailer filed a response to the Defendants’ motions on June 9, 2004. In his response, Sailer disputes the Defendant’s assertion that his present claims mirror those alleged in Civil No. A3-86-01. Sailer also contends the Defendants’ motions “are improper influence exerted upon this court and affect the impartial function, so they can’t be allowed in court proceedings.”

II.       LEGAL DISCUSSION

            Rule 12(b)(1) of the Federal Rules of Civil Procedure governs challenges to subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Unlike a challenge under Rule 12(b)(6), courts may consider matters outside the pleadings. Osborn v. United States, 918 F.2d 724, 729-30 (8^th Cir. 1990). A motion to dismiss under Rule 12(b)(1) may be supported with affidavits or other documents and this Court may hold a hearing at which witnesses may testify if necessary. Id. at 730.

            A.        MOTION TO DISMISS – DEPARTMENT OF U.S. ARMY AND VETERANS ADMINISTRATION

            The Department of the U.S. Army and the Department of Veterans Administration assert Sailer has neither shown his administrative remedies have been exhausted nor demonstrated that the Defendant has waived its sovereign immunity. The Court has reviewed the record and agrees.

             The United States, as a sovereign, is immune from suit unless it waives its immunity and consents to be sued. United States v. Dalm, 494 U.S. 586, 608 (1990). A waiver of sovereign immunity is a prerequisite for jurisdiction. SBA v. Rinehart, 887 F.2d 165, 169 (8^th Cir. 1989). The plaintiff bears the burden of showing a waiver of sovereign immunity. Williams v. United States, 50 F.3d 299, 304 (4^th Cir. 1995).

            Sailer does not allege in his complaint that this action is within the waiver of sovereign immunity. As such, Sailer has not met his burden of showing a waiver of sovereign immunity. Sailer’s complaint as it relates to the Department of the U.S. Army and the Department of Veterans Administration is dismissed.

            B.        MOTION TO DISMISS – NORTH DAKOTA

                        1)        ELEVENTH AMENDMENT

            The Eleventh Amendment to the United States Constitution provides:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI.

            The Supreme Court held in Edelman v. Jordan, 415 U.S. 651 (1974), that “the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.” 415 U.S. 651, 663. “[A] federal court’s remedial power, consistent with the Eleventh Amendment, ... may not include a retroactive award which requires the payment of funds from the state treasury.” 415 U.S. 651, 677. The Supreme Court has consistently held that the Eleventh Amendment bars suits in federal court against a state, including a state agency, by its own citizens as well as citizens of another state.   Accordingly, Sailer’s claim for money damages is barred.

                        2)        STATUTE OF LIMITATIONS

            Sailer’s cause of action appears to have arisen between 1971 and 1976. If Sailer was not aware that his cause of action had accrued at that time, he was surely aware of it in 1986 when he initiated Civil No. A3-86-01 (D.N.D. 1986). The claims asserted by Sailer in the present case appear to arise out of the very same facts and circumstances as the claims asserted in Civil No. A3-86-01.

             The Court cannot discern from the complaint the legal or factual basis for Sailer’s claims against the State of North Dakota. The Court merely notes that the events which allegedly gave rise to Sailer’s claims against the State appear to have occurred more than 28 years ago.

            The State has not identified the applicable statute of limitations. Nevertheless, the State asserts that Sailer’s claim is barred by the statute of limitations because no statute allows for an action to be brought after twenty-eight years. The Court agrees. “Just determinations of fact cannot be made when, because of the passage of time, the memories of witnesses have faded or evidence is lost.” Wilson v. Garcia, 471 U.S. 261, 271 (1985). Such is the case here. Too much time has passed since the State’s alleged wrongdoing. Consequently, the Court finds that Sailer’s claims are time-barred regardless of what statute of limitations period applies. As such, the Court need not address the issues of res judicata and collateral estoppel.

III.      CONCLUSION

            The plaintiff, James Sailer has not sustained his burden of showing a waiver of sovereign immunity. Therefore, the Court GRANTS the Motion to Dismiss (Docket No. 3) filed on behalf of the Department of the U.S. Army and Department of Veterans Administration. The Court further GRANTS the State of North Dakota’s Motion to Dismiss (Docket No. 5) and finds that Sailers claims against the State are stale and his request for monetary damages is barred under the Eleventh Amendment.

            IT IS SO ORDERED.

            Dated this _____ day of July, 2004. 

                                                                        ________________________

                                                                        Daniel L. Hovland, Chief Judge

                                                                        United States District Court