United States District Court, N.D. California
ORDER DISMISSING COMPLAINT PURSUANT TO 28 U.S.C. § 1915, DENYING MOTION FOR SERVICE AS MOOT, AND DENYING PETITION TO WAIVE STANDING ORDER Re: Dkt. Nos. 1, 8, 9
JOSEPH C. SPERO, Magistrate Judge.
Plaintiff Christopher P. Langan filed this pro se action against twenty-four (24) federal defendants, including the United States, the Defense Finance and Accounting Service ("DFAS"), the Department of Defense, the U.S. Air Force, the Department of the Treasury, the Bureau of Fiscal Service, the Financial Management Service ("FMS"), the Internal Revenue Service ("IRS"), and various former and current officials of each of these entities. The dispute relates to Langan's compensation upon his separation from the Air Force, which Langan alleges was underpaid and Defendants believe was overpaid. Langan seeks mandamus relief requiring Defendants to recalculate his separation benefits, expunge his debts, and pay him $36, 142.66. Having previously granted Langan's Application to Proceed in Forma Pauperis, the Court now considers whether Langan's Complaint should be dismissed under 28 U.S.C. § 1915(e)(2)(B), which requires dismissal of an in forma pauperis complaint that (1) is frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief from a defendant who is immune from such relief. See Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). The Court also considers whether to grant Langan's Motion for Summons and Service by a Marshal (Dkt. 8). For the reasons stated below, the Court DISMISSES Langan's Complaint with leave to amend, and DENIES AS MOOT Langan's Motion for Service, without prejudice. The case management conference scheduled for November 7, 2014 is hereby continued to January 9, 2015 at 2:00 PM in Courtroom G, located on the 15th floor of the San Francisco courthouse at 450 Golden Gate Avenue.
Langan has also filed a petition (Dkt. 9) to waive this Court's Civil Local Rule 5-1(e)(7) and Civil Standing Order No. 6, requiring parties to lodge printed courtesy copies of papers that require the Court to take action. That request is DENIED. Although Langan's in forma pauperis status grants him relief from filing fees and service of process, it does not excuse him from compliance with the rules of the Court.
Langan served as an intelligence officer in the United States Air Force, with the rank of Captain. Compl. ¶ 22(f) & Ex. B-5. In early 2011, Langan requested voluntary separation from the Air Force effective April 20, 2011 under the Voluntary Separation Pay ("VSP") program. Compl. Ex. C-11. Langan's commanding officer, Lieutenant Colonel Matthew Atkins, "strongly endorse[d]" this request, noting that Langan had "struggled with judgment and professionalism, " and that "VSP is the perfect opportunity for Capt. Langan to part ways with the Air Force and begin a new career path." Id. Langan's Wing Commander also supported approval. Id. According to a document attached to Langan's Complaint, an eligible officer approved for VSP receives payment equal to: his monthly base salary, multiplied by 12, multiplied by his total active time of military service (in years and fractions thereof, rounded down to the last full month), multiplied by 10%, and multiplied by 1.25. Id.
For reasons not discussed in the Complaint, Langan did not separate from the Air Force in April 2011. On August 12, 2011, Langan requested "45.5 days of excess leave under AFI 36-3003, Table 6, Rule 1 for an emergency or urgent personal situation.'" Id. Ex. B-5. In doing so, he acknowledged certain conditions of excess leave, including that it is a "no-pay status" and that he would "not accrue any pay and allowances while on excess leave." Id. Langan's commanding officer, Lieutenant Colonel Matthew Atkins, approved his request. Id. It appears that Langan requested excess leave in order to attend law school. Id. Ex. B-1.
Langan was approved for separation under the VSP program effective October 1, 2011, and left the Air Force on that date. See id. ¶ 34(c) & Exs. C-12, D-20. In November 2011, Langan received $90, 887 in VSP payments. Id. ¶ 34(h) at 26. Letters from the DFAS indicate that this took the form of two separate and duplicative payments, one for $38, 000 from the DFAS and one for $52, 885.58 from Langan's Field Service Office. E.g., id. Ex. D-22.
The DFAS later determined that Langan was entitled to only $70, 839.60, less a tax withholding of $17, 709.90, for a net payment of $53, 129.70, and that Langan therefore owed $37, 746.88 as a result of the overpayment. E.g., id. Ex. B-2. The DFAS also claims that Langan owes $3, 834.97 due to overpayment of his salary for August 2011. Id. Langan alleges that the DFAS and the FMS attempted to collect Langan's purported debt by sending him letters, reporting the purported debt to private credit reporting agencies, and confiscating a tax refund owed to Langan. See id. ¶¶ 34(b), (c), (h). Langan alleges that Defendants have not provided him an opportunity to inspect government records, enter a written repayment agreement, or request a hearing or waiver. Id. ¶ 34(c).
Offices of two United States Senators have inquired with the DFAS on Langan's behalf on multiple occasions. See id. Exs. D-20 through D-24. Langan alleges that there is also an open investigation by the Air Force Inspector General, which was "erroneously closed" in 2012 but reopened after persistence by Langan and his congressional representatives. Id. at 6.
Langan filed his Complaint in this Court on June 3, 2014. Langan contends that (1) the DFAS miscalculated his VSP pay and excess leave, id. ¶ 34 (d), (f), (g); (2) his salary for August 2011 was correct, id. ¶ 34(e); (3) he should have been placed on temporary duty (TDY) rather than excess leave for August and September 2011, and thus should have been paid for that time, id. ¶ 34(d); (4) tax should not have been withheld from his VSP pay, id. ¶ 34(h) at 26-27; and (5) he should be credited for a tax refund that was confiscated by the Financial Management Service of the Department of the Treasury, id. ¶ 34(h) at 26, 28-29. He asks the Court to "[e]njoin the defendants to recalculate the plaintiff's financial compensation above and as a result pay the plaintiff $36, 142.66 immediately, " declare this recovery non-taxable VA disability compensation, and enjoin the defendants to mark all of Langan's debts as paid in full and "remove all history of such debts from the defendants [sic] records and the records of all credit reporting agencies." Id. ¶¶ 25(a)-(b) at 33. Langan also requests his costs and fees, and any other relief to which he is entitled. Id. ¶¶ 25(b)-(c) at 33.
Along with his Complaint, Langan filed an Application to Proceed in Forma Pauperis, which the Court granted on September 3, 2014. Plaintiff filed a Motion for Summons and Service by a Marshal on June 10, 2014, which the Court resolves in this Order. A case management conference was scheduled for September 5, 2014, which Langan did not attend.
A. Legal Standard
Where a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1) and is granted leave to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: (1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). Federal Rule of Civil Procedure 8(a)(2) provides that a pleading must contain a "short and plain statement of the ...