Joppy v. United States , 646 F. App'x 998 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CALVIN JOPPY, AKA KEVIN JOPPY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-1329
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00536-EDK, Judge Elaine Kaplan.
______________________
Decided: May 10, 2016
______________________
CALVIN JOPPY, Milton, FL, pro se.
MELISSA M. DEVINE, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
DOUGLAS K. MICKLE.
______________________
Before PROST, Chief Judge, LINN, and TARANTO, Circuit
Judges.
2 JOPPY v. US
PER CURIAM.
Calvin Joppy alleges that the Navy unlawfully sepa-
rated him from his military service in 1981. After the
Board for Correction of Naval Records twice denied his
challenge to his 1981 discharge, Mr. Joppy filed suit in
the Court of Federal Claims. That court dismissed his
claim as barred by the statute of limitations. We affirm.
BACKGROUND
In 1980, the Navy imposed non-judicial punishments
on Mr. Joppy for several assaults (and disobedience of a
lawful order). In 1981, a Navy psychiatrist diagnosed him
as having an explosive personality disorder. As a result,
the Navy dropped pending court-martial charges and,
finding him unsuitable for further military service, termi-
nated his service on March 13, 1981.
More than twenty-one years later, Mr. Joppy filed a
claim with the Board for Correction of Naval Records,
challenging his 1981 discharge as resting on a misdiagno-
sis. Specifically, he argued that what the military had
called a personality disorder was in fact post-traumatic
stress disorder, brought on by his witnessing of the mur-
der of a shipmate. He asked that his administrative
separation be changed to a medical discharge, which, he
contended, would entitle him to disability pay and retire-
ment benefits. The Board denied Mr. Joppy’s request in
2003. The Board likewise denied a second application,
filed in 2014, in which Mr. Joppy argued that the Navy
had implemented a policy by which it produced false
evaluations in order to discharge servicemen like him who
suffered from psychological disorders.
Joppy then filed a complaint in the Court of Federal
Claims on May 27, 2015, invoking that court’s jurisdiction
under the Tucker Act, 28 U.S.C. § 1491(a). Alleging that
he was improperly discharged, he sought backpay as well
as disability retirement benefits. The Court of Federal
JOPPY v. US 3
Claims dismissed the complaint for lack of jurisdiction on
the ground that it was out of time under the applicable
six-year statute of limitations, 28 U.S.C. § 2501. The
court later denied reconsideration.
Mr. Joppy appeals to this court. We have jurisdiction
under 28 U.S.C. § 1295(a)(3). We review the jurisdiction-
al dismissal de novo. Bank of Guam v. United States, 578
F.3d 1318, 1325 (Fed. Cir. 2009).
DISCUSSION
The Court of Federal Claims’ jurisdiction here rests
on the Tucker Act, and the Supreme Court has confirmed
that, for a suit to come within the jurisdiction granted by
that Act, the suit must be filed within the six years per-
mitted by the statute of limitations, 28 U.S.C. § 2501.
John R. Sand & Gravel Co. v. United States, 552 U.S.
130, 133–34, 138–39 (2008). Here, the Court of Federal
Claims correctly concluded that both Mr. Joppy’s claim for
backpay (based on error in the 1981 discharge) and his
claim for record correction and benefits (based on error in
the reason for the 1981 discharge) were filed out of time.
Both claims accrued more than six years before the 2015
suit.
We have held that a claim for backpay for unlawful
discharge, made under 37 U.S.C. § 204, accrues at the
time of the service-member’s discharge. Martinez v.
United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003). We
have also clarified that the claim accrues all at once; there
is no accrual of a new claim each pay period after the
(allegedly wrongful) discharge. Id. at 1303–04. Here, Mr.
Joppy’s claim accrued when he was discharged in 1981.
His complaint challenging the discharge, filed in 2015,
was therefore untimely.
Mr. Joppy’s claim for disability retirement benefits is
also untimely, but for a different reason. We have held
that such a claim, made under 10 U.S.C. § 1201, accrues
4 JOPPY v. US
when the appropriate military board first denies a claim
for disability benefits. Chambers v. United States, 417
F.3d 1218, 1224 (Fed. Cir. 2005) (“we cannot acquire
jurisdiction of such a claim until after the Board and the
Secretary have acted” (internal quotation marks omit-
ted)). The accrual of the claim for such benefits occurs
upon “[t]he decision by the first statutorily authorized
board that hears or refuses to hear the claim.” Id. (em-
phasis added). Once that occurs, the jurisdictional barrier
to suing on the claim dissolves, and nothing prevents the
filing of such a suit; accordingly, accrual does not change
upon the filing of a later second request for such benefits.
Here, the Board for Correction of Naval Records first
denied Mr. Joppy’s request in 2003. His 2015 suit in the
Court of Federal Claims was therefore out of time under
the six-year statute of limitations.
Our analysis is not changed by Mr. Joppy’s invocation
of the concept of constructive service for his claim for
backpay based on an allegedly wrongful discharge. That
concept is used in timely brought suits to describe why
plaintiffs who prove improper termination may, in speci-
fied circumstances, recover backpay and benefits during
the time they would have been employed had the improp-
er termination not occurred: they are treated as employed
during a period they actually were not. See Barnick v.
United States, 591 F.3d 1372, 1379 (Fed. Cir. 2010);
Christian v. United States, 337 F.3d 1338, 1347 (Fed. Cir.
2003); Wright v. United States, 81 Fed. Cl. 369, 375
(2008). The Court of Federal Claims correctly held that
the concept does not alter the rules for the timeliness of
the suit starting from an allegedly wrongful discharge.
The Court of Federal Claims was also correct in re-
jecting Mr. Joppy’s invocation of equitable tolling of the
starting of the six-year period allowed for the filing of the
suit. At a minimum, the jurisdictional character of this
statute of limitations makes equitable tolling unavailable.
See FloorPro, Inc. v. United States, 680 F.3d 1377, 1382
JOPPY v. US 5
(Fed. Cir. 2012) (“Because section 2501’s time limit is
jurisdictional, the six-year limitations period cannot be
extended even in cases where such an extension might be
justified on equitable grounds.”).
Finally, the Court of Federal Claims correctly rejected
Mr. Joppy’s argument that the accrual of his claim should
be suspended because the government acted in a fraudu-
lent manner by misdiagnosing him with a personality
disorder rather than with post-traumatic stress disorder
as a way to terminate him from the military. For a sus-
pension of the type asserted to be warranted, a plaintiff
“must either show that defendant has concealed its acts
with the result that plaintiff was unaware of their exist-
ence or it must show that its injury was ‘inherently un-
knowable’ at the accrual date.” Martinez, 333 F.3d at
1319 (quoting Welcker v. United States, 752 F.2d 1577,
1580 (Fed Cir. 1985)). Here, Mr. Joppy was fully aware
that he was being separated from the service because of
an alleged personality disorder: he was informed of the
discharge in writing at least twice. Neither the act (dis-
charge) nor the injury (loss of pay and potential benefits)
was concealed from nor unknown to Mr. Joppy (let alone
inherently unknowable). He also knew the stated basis of
the discharge (the personality-disorder diagnosis), and he
could have challenged its soundness: indeed, he consulted
a lawyer at the time, and he says in his petition to us
that, at the time, he disagreed with the decision to dis-
charge him, believing it was racially motivated, Pet. Br.
12–13. These facts do not fit within the “‘strictly and
narrowly applied’” doctrine of “‘accrual suspension.’”
Martinez, 333 F.3d at 1319.
CONCLUSION
The judgment of the Court of Federal Claims, dismiss-
ing the complaint as time-barred, is affirmed.
AFFIRMED