NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RUDY SAMUEL MELSON,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-1386
______________________
Appeal from the United States Court of Federal Claims
in No. 1:17-cv-00540-TCW, Judge Thomas C. Wheeler.
______________________
Decided: July 17, 2019
______________________
MARK ANTHONY CRAWFORD, The Crawford Law Firm,
PC, Floral Park, NY, argued for plaintiff-appellant.
IGOR HELMAN, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for defendant-appellee. Also represented by
ROBERT EDWARD KIRSCHMAN, JR., LOREN MISHA PREHEIM,
JOSEPH H. HUNT.
______________________
Before DYK, REYNA, and TARANTO, Circuit Judges.
2 MELSON v. UNITED STATES
PER CURIAM.
Rudy Melson brought suit in the Court of Federal
Claims (“Claims Court”) seeking damages related to his
2005 discharge from the United States Army Reserve and
his 2008 separation from the United States Public Health
Service (“USPHS”) Commissioned Corps. The Claims
Court dismissed his suit. We affirm in part, vacate in part,
and remand.
BACKGROUND
According to his complaint, Melson served in the
United States Army Reserve from 2002 to 2005. He was
discharged in 2005. He thereafter served in the USPHS
Commissioned Corps in various capacities from 2006 to
2008. For part of Melson’s time in the USPHS, he was as-
signed to the Bureau of Prisons to fulfill his active duty ser-
vice obligation. Melson alleges that he was informed that
would be involuntarily separated for cause, but that he was
then forced to resign in lieu of involuntary termination in
2008.
On April 17, 2017, Melson filed suit in the Claims
Court, seeking compensation related to his discharge from
the Army Reserve and his separation from the USPHS
Commissioned Corps. The Claims Court interpreted Mel-
son’s complaint as requesting back pay based on his wrong-
ful discharge from the Army Reserve and USPHS
Commissioned Corps, and as seeking damages for illegal
discrimination and a hostile work environment at the
USPHS. The court held that the back pay claims were
barred by the six-year statute of limitations applicable to
all claims over which the Claims Court has jurisdiction,
28
U.S.C. § 2501. The court noted that back pay claims accrue
upon discharge under our decision in Martinez v. United
States,
333 F.3d 1295, 1303–04 (Fed. Cir. 2003) (en banc).
It held that Melson was discharged from the Army Reserve
in 2005 and separated from the USPHS in 2008, more than
six years before he brought suit in 2017. As to the
MELSON v. UNITED STATES 3
discrimination and hostile work environment claims, the
court held that these claims—like other tort or discrimina-
tion claims—fall outside the Claims Court’s limited juris-
diction.
Melson appeals. We have jurisdiction under
28 U.S.C.
§ 1295(a)(3). We review dismissal of a complaint for lack
of jurisdiction and failure to state a claim de novo. See
Turping v. United States,
913 F.3d 1060, 1064 (Fed. Cir.
2019).
DISCUSSION
There are three types of claims at issue in this case:
back pay claims, discrimination and hostile work environ-
ment claims, and disability retirement claims. On appeal,
Melson “concedes that his back pay claims may be un-
timely,” as the Claims Court held. Appellant’s Br. at 13.
Such a concession is appropriate because under Martinez,
333 F.3d at 1303–04, a “claim for back pay accrues all at
once at the time of discharge” and a plaintiff must “file suit
within the six-year limitation period prescribed in
28
U.S.C. § 2501.” Here both the discharge and separation
dates were more than six years before Melson brought suit
in the Claims Court. The Claims Court thus properly dis-
missed the back pay claims as untimely.
Melson also does not allege any error in the court’s dis-
missal of his discrimination and hostile work environment
claims, which the Claims Court held were not within its
limited jurisdiction. We therefore affirm the Claims
Court’s dismissal of the discrimination and hostile work
environment claims.
On appeal, Melson contends only that the Claims Court
improperly dismissed his claims for disability retirement
benefits. Disability retirement is governed by
10 U.S.C.
§ 1201, which provides that a service member may retire
and receive “retired pay” if the member is “unfit to perform
the duties of the member’s office, grade, rank, or rating
4 MELSON v. UNITED STATES
because of physical disability” that is “of a permanent na-
ture and stable.”
The government contends that Melson did not plead a
disability retirement claim in his complaint. With respect
to Melson’s service in the USPHS Commissioned Corps, his
complaint alleged that he was “placed in a hostile work en-
vironment” and that his supervisors had “a propensity to
discriminate,” J.A. 23, but he did not claim that he should
receive disability retirement based on that service. We con-
clude that Melson failed to state a disability retirement
claim based on Melson’s separation from the USPHS Com-
missioned Corps.
However, Melson’s complaint alleged that he had a
“medical condition that caused his” discharge from the
Army Reserve, and that the medical condition was “due to
aggravation proximately caused by Basic Combat Training
and additional ROTC training thereafter, which qualified
him for medical separation with severance pay.” J.A. 19
(emphasis omitted). The complaint also requested the
Claims Court to “[a]mend the existing ‘AUTHORITY AND
REASON’ of Mr. Melson’s NGB FORM 22E [his Army Re-
serve discharge form] to reflect: ‘Separation for Physical
Disability Discharge with Severance Pay.’” J.A. 24.
Though not a model of clarity, we conclude that the com-
plaint alleged a disability retirement claim with respect to
Melson’s discharge from the Army Reserve.
The government contends that Melson’s disability re-
tirement claim, based on his discharge from the Army Re-
serve, is barred by the six-year statute of limitations. On
May 13, 2019, we asked the parties to “file simultaneous
supplemental briefs addressing whether the Army Board
for the Correction of Military Records [ABCMR] denied a
claim by Melson for disability retirement benefits, and, if
it did, when it first denied such a claim.” Melson v. United
States, No. 18-1386 (Fed. Cir. May 13, 2019), ECF No. 39.
The parties agree that “claims of entitlement to disability
MELSON v. UNITED STATES 5
retirement pay generally do not accrue until the appropri-
ate military board either finally denies such a claim or re-
fuses to hear it.” Chambers v. United States,
417 F.3d
1218, 1224 (Fed. Cir. 2005); Real v. United States,
906 F.2d
1557, 1560 (Fed. Cir. 1990); Friedman v. United States,
310
F.2d 381, 395–96 (Ct. Cl. 1962). There is an exception: if a
service member has “sufficient actual or constructive notice
of his disability . . . at the time of discharge,” then the stat-
ute of limitations begins to run on the date of discharge.
Chambers,
417 F.3d at 1226 (citing Real,
906 F.2d at 1562).
Once the disability retirement claim accrues, the claimant
has six years to file that claim in the Claims Court. See
Chambers,
417 F.3d at 1223 (citing
28 U.S.C. § 2501). This
six-year limitations period is jurisdictional in nature. John
R. Sand & Gravel Co. v. United States,
552 U.S. 130, 134
(2008).
The government argues that Melson’s disability retire-
ment claim based on his discharge from the Army Reserve
is time-barred. The government urges that Melson first
asked an appropriate military board, the Army Discharge
Review Board (ADRB), to re-characterize his discharge
from the Army Reserve to reflect that “he was discharged
due to a service connected disability.” S.A. 39. The ADRB
denied Melson’s claim on April 1, 2011. The government
contends that this occurred more than six years before Mel-
son filed his complaint in the Court of Federal Claims on
April 17, 2017, and that his disability retirement claim is
therefore time-barred. The government alternatively con-
tends that Melson’s claim is time-barred because it accrued
upon Melson’s discharge, even before the ADRB denied his
claim, because Melson “knew of his disability and knew
that it was permanent and service-connected at the time of
his discharge” in 2005. Appellee’s Supp. Br. at 3; see Cham-
bers,
417 F.3d at 1226.
Melson’s supplemental brief argues that Melson’s dis-
ability claim accrued when the ABCMR denied his claim
on November 25, 2014, or when it denied his request for
6 MELSON v. UNITED STATES
reconsideration on January 19, 2016. Melson’s theory is
that he filed in the Claims Court within six years of these
dates, and thus the Claims Court had jurisdiction over this
claim. Melson does not address the government’s alterna-
tive argument that his disability claim accrued upon his
discharge because he had sufficient knowledge of his disa-
bility at that time.
We think these issues are best addressed by the Claims
Court in the first instance and therefore vacate and re-
mand. On remand, the court should determine when the
limitations period began to run for any disability claim
based on Melson’s discharge from the Army Reserve and
whether such a claim is time-barred. If the court concludes
that the claim is not time-barred, the court should proceed
to the merits of the claim. In all other respects, we affirm
the Claims Court’s dismissal of the claims.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED
COSTS
No costs.
