Donald Zappley, Sr. v. Us , 527 F. App'x 891 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DONALD W. ZAPPLEY, SR.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5046
______________________
Appeal from the United States Court of Federal
Claims in No. 10-CV-0299, Judge Francis M. Allegra.
______________________
Decided: June 25, 2013
______________________
DONALD W. ZAPPLEY, SR., of Gladstone, Michigan, pro
se.
ROBERT C. BIGLER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for defendant-appellee. With
him on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
FRANKLIN E. WHITE, JR., Assistant Director.
______________________
Before PROST, O’MALLEY, and REYNA, Circuit Judges.
2 DONALD ZAPPLEY, SR. v. US
PER CURIAM.
Appellant Donald W. Zappley seeks review of deci-
sions of the Court of Federal Claims dismissing his claim
for wrongful discharge as barred by the statute of limita-
tions, granting judgment in favor of Defendant on the
parties’ cross-motions for judgment on the administrative
record, and denying his request to supplement the admin-
istrative record. Because Mr. Zappley did not file his
wrongful discharge suit within the limitations period, the
Court of Federal Claims did not err by dismissing the
wrongful discharge claim. Nor do we find that the deci-
sion in favor of Defendant on the parties’ cross-motions
for judgment on the administrative record to be arbitrary,
capricious, contrary to law, or otherwise lacking substan-
tial evidence. Finally, we affirm the Court of Federal
Claims’ decision to deny Mr. Zappley’s request to supple-
ment the administrative record. We therefore affirm.
BACKGROUND
The present dispute stems from Mr. Zappley’s service
in the United States Navy (the “Navy”), which began on
February 1, 1973. Prior to his enlistment, on January 4,
1973, Mr. Zappley was examined by Navy personnel and
found to be in “very good health.”
On July 5, 1973, Mr. Zappley was injured during an
altercation with another sailor while aboard the U.S.S.
Independence. 1 On July 9, 1973, following the alterca-
tion, Mr. Zappley was evaluated by the Flight Surgeon
and Medical officer of the Independence who diagnosed
him with “Inadequate Personality.” The medical officer
concluded that the inadequate personality diagnosis
1 This altercation led to the other sailor serving a
30-day sentence in the ship’s brig and being dishonorably
discharged from the Navy.
DONALD ZAPPLEY, SR. v. US 3
rendered Mr. Zappley unsuitable for duty and recom-
mended that he be discharged from the Navy. Mr. Zap-
pley was notified that he was being considered for
discharge on July 23, 1973, but declined to make any
statement in response to the notice. On July 24, 1973, the
Commanding Officer of the Independence recommended
that Mr. Zappley be processed for discharge.
On August 16, 1973, Mr. Zappley received a discharge
exam. During this exam, he did not display any injury,
disease, disability, or defect with his left eye and his
vision was tested to be 20/20 for both eyes. No record of
any residual disabling effects due to the contusions to his
nose and brow was reported. He was also found to be
physically qualified for duty and, notwithstanding his
inadequate personality diagnosis, was able “to perform all
the duties of his rate both at sea and foreign shore.” On
August 20, 1973, Mr. Zappley was honorably discharged
from the Navy.
Since his discharge, Mr. Zappley periodically request-
ed service-connected disability benefits related to alleged
injuries to his left eye. In response, he was examined in
1995, 2000, and 2001 by doctors at the Department of
Veterans Affairs (the “VA”) and found to have 20/20
eyesight or better in his left eye. The VA also noted that
his medical records indicated that he suffered injuries in
the 1973 altercation, but there was no evidence that those
injuries would be chronic or have any residual disabling
effects on Mr. Zappley. The report further acknowledged
that Mr. Zappley sustained an intervening injury to his
left eye in a car accident in 1987.
On January 8, 2003, Mr. Zappley petitioned the Board
for Corrections of Naval Records (BCNR), requesting that
his military record be changed to reflect that the 1973
altercation that led to his discharge was a “sneak attack”
and not a “fight” and the basis for his discharge was
physical disability rather than unsuitable personality.
The BCNR made requests for additional information from
Mr. Zappley and the VA, but no VA ratings decisions were
4 DONALD ZAPPLEY, SR. v. US
provided in response to those requests. On the record
before it, the BCNR denied Mr. Zappley’s petition to
change his military record on June 30, 2005, concluding
that there was insufficient evidence to establish a materi-
al error or injustice in his military record.
Mr. Zappley then sought reconsideration of the
BCNR’s determination, relying in part on a ten-percent,
service-connected disability benefit granted by the VA on
March 16, 2005. This VA decision was not provided to the
BCNR before it denied Mr. Zappley’s original request.
The VA’s March 16, 2005, disability award arose from
Mr. Zappley’s argument that his 1987 motor vehicle
accident aggravated the pre-existing injury to his left eye
sustained during the July 5, 1973, altercation. In grant-
ing the benefit, the VA admitted it was “acknowledging
service connection for the mild superior temporal field
distortion in [Mr. Zappley’s] left eye and assigning a
disability evaluation of 10 percent for that condition
effective March 14, 1995.” Despite the VA’s assignment of
a ten-percent disability rating, the BCNR determined that
Mr. Zappley had failed to submit any new evidence that
warranted reconsideration.
On May 17, 2010, Mr. Zappley filed a complaint in the
United States Court of Federal Claims (“Court of Federal
Claims”). The complaint included a claim for wrongful
termination and an appeal of the BCNR’s denial of his
request for corrective action. 2 The Court of Federal
Claims dismissed the wrongful termination claim as time-
barred by the statute of limitations and remanded the
claim for corrective action to the BCNR for further con-
sideration in light of the VA’s ten-percent disability
award.
2 Mr. Zappley’s complaint also included tort and
criminal claims that are not at issue in this appeal.
DONALD ZAPPLEY, SR. v. US 5
Upon remand, the BCNR denied Mr. Zappley’s re-
quest for reconsideration. The BCNR concluded that the
submission of the VA’s ten-percent disability determina-
tion was untimely because it was reasonably available to
Mr. Zappley prior to the BCNR’s initial June 30, 2005,
decision. The BCNR also found that the VA’s ten-percent
disability rating was not probative of the existence of
material error or injustice in Mr. Zappley’s naval record
because the VA explicitly granted the disability rating
“without regard to the issue of your fitness for military
duty on 20 August 1973.”
On October 12, 2011, Mr. Zappley filed a motion to
supplement the record which the Court of Federal Claims
denied. Thereafter, the parties filed cross-motions for
judgment on the administrative record and the Court of
Federal Claims granted judgment in favor of Defendant.
Mr. Zappley appeals.
DISCUSSION
A. WRONGFUL TERMINATION
The Court of Federal Claims is a court of specific ju-
risdiction and can only resolve claims for which the Unit-
ed States has waived sovereign immunity. United States.
v. Testan, 424 U.S. 392, 399 (1976) (“the United States, as
sovereign, ‘is immune from suit save as it consents to be
sued . . . and the terms of its consent to be sued in any
court define that court’s jurisdiction to entertain the
suit.’”) (quoting United States v. Sherwood, 312 U.S. 584,
586 (1941)). Pursuant to the Tucker Act, the Government
has waived sovereign immunity for certain claims seeking
monetary relief in the Court of Federal Claims. Martinez
v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en
banc).
The statute of limitations is a jurisdictional require-
ment of the government’s waiver of sovereign immunity.
Maclean v. United States, 454 F.3d 1334, 1336 (Fed. Cir.
2006). The waiver of sovereign immunity is embodied in
28 U.S.C. § 2501, which mandates that “[e]very claim of
6 DONALD ZAPPLEY, SR. v. US
which the United States Court of Federal Claims has
jurisdiction shall be barred unless the petition thereon is
filed within six years after such claim first accrues.” A
claim under the Tucker Act accrues “as soon as all events
have occurred that are necessary to enable the plaintiff to
bring suit.” Martinez, 333 F.3d at 1303.
Here, Mr. Zappley was honorably discharged from the
Navy on August 20, 1973. At that time, Mr. Zappley was
informed that he was being discharged due to inadequate
personality. He participated in a hearing regarding his
discharge and was notified of his right to make a written
statement concerning the inadequate personality diagno-
sis and discharge. Instead of contesting his discharge at
that time, he declined to make a written statement. He
thereafter signed his “Record of Discharge,” which ex-
pressly indicated that he was being discharged for “un-
suitability,” without any apparent protest.
In addition to the information known by Mr. Zappley
contemporaneous with his discharge, in 1977, he obtained
a copy of his naval personnel records, including records
addressing his discharge. He used those records in con-
nection with a 1977 disability application to the VA.
According to Mr. Zappley, this 1977 application “placed
the [government] on notice” that he disputed certain
statements in his Navy records and considered them “not
to be relevant to inadequate personality and unsuitabil-
ity.” (Appellant’s Informal Br. 3.)
It has long been settled law that in a military dis-
charge case, a plaintiff’s cause of action accrues at dis-
charge. Martinez, 333 F.3d at 1303. Mr. Zappley did not
contest his discharge until May 17, 2010, nearly four
decades after it occurred. The record indicates that he
knew in both 1973 and 1977 that the reason for his dis-
charge was a medical determination of inadequate per-
sonality, but Mr. Zappley failed to challenge the medical
determination within six years of discharge and we see
nothing in the record that would justify disregarding the
six-year limitations period in this case. Thus, on the
DONALD ZAPPLEY, SR. v. US 7
record before us, we determine that the Court of Federal
Claims properly dismissed Mr. Zappley’s claim of wrong-
ful termination for lack of jurisdiction.
B. JUDGMENT ON THE ADMINISTRATIVE RECORD
Mr. Zappley appeals the Court of Federal Claims’
judgment on the administrative record that affirmed the
BCNR’s refusal to correct his military records to reflect a
disability-based discharge. We review a decision of the
Court of Federal Claims on a motion for judgment on the
administrative record de novo. Chambers v. United
States, 417 F.3d 1218, 1227 (Fed. Cir. 2005). Accordingly,
we apply the same standard as the Court of Federal
Claims and will not disturb the decision of the BCNR
unless it was arbitrary, capricious, contrary to law, or
unsupported by substantial evidence. Barnick v. United
States, 591 F.3d 1372, 1377 (Fed. Cir. 2010). Substantial
evidence means that “there exists ‘such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.’” Nippon Steel Corp. v. U.S., 458 F.3d 1345,
1351 (Fed. Cir. 2006) (quoting Universal Camera v. Nat’l
Labor Relations Bd., 340 U.S. 474, 477-78 (1951)).
The BCNR based its decision on medical records and
letters created at the time of Mr. Zappley’s discharge.
Those records support the fact that Mr. Zappley was
discharged on the basis of unsuitability due to inadequate
personality. The medical records indicate that Mr. Zap-
pley received a discharge exam wherein he was deemed
physically qualified for duty, and that he had no lasting
injury or disability to his left eye. The BCNR further
noted that Mr. Zappley displayed no disability or abnor-
mality in his left eye when he was examined by the VA in
1995, 2000, and 2001. We therefore agree with the Court
of Federal Claims that the BCNR’s decision was not
arbitrary, capricious, contrary to law, or unsupported by
substantial evidence.
We agree, moreover, that the BCNR did not err when
it denied Mr. Zappley’s motion for reconsideration, either
8 DONALD ZAPPLEY, SR. v. US
initially or on remand. The BCNR was correct that VA’s
March 16, 2005 ten-percent disability rating was not new
and material evidence because it issued prior to the
BCNR’s July 12, 2005 decision and had not been present-
ed to the Board before that July decision.
Finally, Mr. Zappley also challenges the denial of his
motion to supplement the administrative record in the
Court of Federal Claims. Here, our review of the Court of
Federal Claims’ denial to supplement the administrative
record is reviewed for an abuse of discretion. Axiom Res.
Mgmt., Inc. v. United States, 564 F.3d 1374, 1378 (Fed.
Cir. 2009). Mr. Zappley filed his motion to supplement
the administrative record on October 12, 2011. Despite
that the vast majority, if not all, of the documents existed
long before he attempted to add them to the administra-
tive record, Mr. Zappley has given no explanation for his
failure to timely present these documents to the BCNR so
that they would have been part of the administrative
record so that they could be reviewed by the BCNR in the
first instance. Under these circumstances, the Court of
Federal Claims did not abuse its discretion in refusing
Mr. Zappley’s untimely submission of these materials.
CONCLUSION
In view of the foregoing, we affirm the Court of Fed-
eral Claims decision to dismiss Mr. Zappley’s wrongful
termination claim on the ground that it is barred under
the statute of limitations and that the BCNR did not act
arbitrarily, capriciously, or contrary to law, in refusing to
correct his naval records. Accordingly, the decision of the
Court of Federal Claims is
AFFIRMED.
COSTS
No Costs.