Quesada v. United States ( 2018 )

3Jn tbe Wniteb ~tates (!Court of jfeberal (!Claims
FILED
No. l 7-1088C
(Filed: March 20, 2018) MAR 2 0 2018
U.S. COURT OF
************************************* FEDERAL CLAIMS
LUIS ANGEL QUESADA, * Military Disability Retirement Pay, 10
• U.S.C. § 1201; Military Retirement Pay, 10
Plaintiff, * U.S.C. §§ 1176, 3914, 3929, 3991; Physical
* Disability Review Board, 10 U.S.C.
v. * § 1554a; RCFC 12(b)(l); Money-Mandating
* Statutes; Statute of Limitations, 28 U.S.C.
THE UNITED STATES, * § 2501; Claim Accrual; Physical Evaluation
* Board; Discharge Date; Effect of Correction
Defendant. * Board Proceedings
*************************************
Luis A. Quesada, March Air Reserve Base, CA, pro se.
Margaret J. Jantzen, United States Department of Justice, Washington, DC, for defendant.
OPINION AND ORDER
SWEENEY, Judge
Plaintiff Luis A. Quesada, proceeding pro se and applying to proceed in forma pauperis,
was separated from the United States Army ("Army") with disability severance pay in 1993 after
honorably serving his country for nearly eighteen years. He contends, however, that the Army
should have retired him for disability, and therefore seeks disability retirement pay and benefits
dating back to his discharge date pursuant to 10 U.S.C. § 1201. 1 Defendant moves to dismiss
plaintiffs complaint as barred by the statute of limitations. For the reasons set forth below, the
court grants plaintiffs application to proceed in forma pauperis, grants defendant's motion to
dismiss, and dismisses plaintiffs complaint as time-barred.
1
Unless otherwise noted, all references and citations to title 10 of the United States Code
are to the provisions in effect at the time of plaintiffs separation from the Army.
7016 3010 DODD 4308 4508
I. BACKGROUND
A. Plaintiff's Military Service
Plaintiff entered active duty service in the Army on March 2, 1976. 2 He was assigned to
the Army Medical Corps Command, and served as a medical specialist, ultimately attaining the
rank of staff sergeant on July 1, 1983. During his first fifteen years of service, plaintiff served
both in the United States and abroad.
In 1991, plaintiff was assigned to Fort Monmouth, New Jersey. In April 1992, he began
to experience neck and lower back pain. X-rays revealed mild scoliosis of the cervical and
thoracic spine, and a suggestion of spondylolysis of the LS vertebra in the lumbar spine, but no
other significant bony abnormality. He began a course of conservative treatment, including
physical therapy, traction, and exercise. Unfortunately, he saw no improvement in his condition.
Thus, in January 1993, plaintiff had MRis taken of his cervical spine and thoracic spine. The
MRI of his cervical spine revealed herniated disks between the C4 and CS vertebrae and between
the CS and C6 vertebrae, as well as ridging between the C6 and C7 vertebrae, all of which were
compressing the adjacent cervical cord. The MRI of his thoracic spine revealed a probable small
herniated disk between the L4 and LS vertebrae.
While he was stationed at Fort Monmouth, plaintiff volunteered for an assignment in
South Korea. However, due to plaintiffs back pain, a physician at Walter Reed Army Medical
Center completed a Physical Profile form for plaintiff on February 12, 1993, indicating that
plaintiffs physical activities should be limited for three months, and recommending-if
possible-that plaintiff not be deployed to South Korea for six months to allow him to continue
his rehabilitation. The same physician prepared a similar Physical Profile form on February 22,
1993, indicating that plaintiffs physical activities should be limited for six months. 3 However,
on March 4, 1993, a physician at Fort Monmouth prepared a new Physical Profile form
indicating that plaintiffs physical activities should only be limited until April lS, 1993;
plaintiffs then-upcoming deployment to South Korea was not mentioned.
In fact, plaintiff was deployed to South Korea in April 1993. After arriving in Seoul, he
was transported via truck to Camp Casey. On April 20, 1993, plaintiff underwent a medical
evaluation, and was diagnosed with chronic lower back pain, chronic cervical pain, and
subjective radicular symptoms in his upper and lower extremities. It was recommended that
2
The court derives the background from plaintiffs complaint; the addendum to
plaintiffs complaint; and the exhibits attached to plaintiffs complaint, defendant's motion to
dismiss, and plaintiffs response to defendant's motion to dismiss.
3
The change in the duration of the restriction on physical activities appears to be the only
difference between the two forms prepared by the physician at Walter Reed Army Medical
Center.
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plaintiff be returned to the United States for an administrative determination of his fitness for
duty. Thirty days after plaintiff arrived in South Korea, he was transported back to the United
States to an Army hospital of his choosing-Fitzsimmons Army Medical Center ("F AMC") in
Aurora, Colorado.
After he arrived at FAMC, plaintiff was evaluated at the orthopedic clinic on May 8,
1993, and his orthopedist, Bert C. Callahan, M.D., assessed him with mechanical lower back
pain. Dr. Callahan determined that plaintiff would undergo physical therapy and then, after
ninety days, be reevaluated to determine the need for a Medical Evaluation Board ("MEB"). 4
Later that month, Dr. Callahan prepared a Physical Profile form indicating that plaintiffs
physical activities should be limited until August 15, 1993, and certified that plaintiff would
require hospitalization for more than three months.
Dr. Callahan evaluated plaintiff again on June 7, 1993. Despite his earlier intent to
reevaluate plaintiff in August 1993 to determine the need for an MEB, Dr. Callahan's record of
the June 7, 1993 visit includes the following notation: "Would like to start MEB. Will obtain
bone scan & start MEB." In fact, Dr. Callahan dictated the MEB report on July 15, 1993. In the
report, Dr. Callahan provided the history of plaintiffs condition, reviewed all of plaintiffs
systems, and described the results of his physical examination of plaintiff. In addition, Dr.
Callahan described the results of plaintiffs x-rays, MRis, and laboratory tests. Dr. Callahan also
noted plaintiffs then-present status, remarking that notwithstanding plaintiffs dedication to his
rehabilitation program, plaintiff remained "quite limited by his back pain .... " Ultimately, Dr.
Callahan recorded diagnoses of chronic mechanical lower back pain and seasonal allergies, and
recommended that plaintiff be presented to a Physical Evaluation Board ("PEB") for an
administrative disposition.'
The PEB convened on October 15, 1993. In the report of its proceedings, the PEB
described plaintiffs disability as "[c]hronic mechanical low back pain with normal x-rays with
right sided L4/L5 herniated [disk] without radiculopathy or radiculitis but with characteristic pain
on motion," and assigned a rating of 10% for this disability. The PEB concluded that plaintiffs
disability rendered plaintiff unfit to perform the duties of a medical noncommissioned officer.
4
An MEB is "convened to document a Soldier's medical status and duty limitations
insofar as duty is affected by the Soldier's status," and "(a] decision is made as to the Soldier's
medical qualification for retention .... " Army Regulation 635-40, "Physical Evaluation for
Retention, Retirement, or Separation" ("Army Regulation 635-40"), ~ 4-10 (Aug. 15, 1990).
5
If an MEB "determines that the Soldier does not meet retention standards, [it] will
recommend referral of the soldier to a PEB." Army Regulation 635-40, ~ 4-10; accord id.~ 4-13.
PEBs "evaluate all cases of physical disability equitably for the Soldier and the Army." Id.~ 4-
17. They determine, among other things, "[w]hether the Soldier is physically fit or unfit to
perform the duties of the Soldier's office, grade, rank, or rating," and "[w]hether the disability
meets the criteria established by law for compensation." Id.~ 4-19(a).
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Because plaintiffs disability rating was less than 30% and plaintiff had less than twenty years of
service, 6 the PEB recommended that plaintiff be separated from the Army with disability
severance pay.
On October 18, 1993, plaintiff acknowledged that he had been fully apprised of the PEB's
findings and recommendations, as well as his rights pertaining to those findings and
recommendations, and indicated that he concurred with the PEB's report and waived a formal
hearing of his case. Moreover, the counselor assigned to assist plaintiff declared that she had
explained to plaintiff both the PEB' s findings and recommendations, and his rights pertaining to
those findings and recommendations.
In accordance with the PEB's recommendation, plaintiff was separated from the Army
with disability severance pay on November 15, 1993. Plaintiff was honorably discharged;
indeed, plaintiff received numerous commendations throughout his Army career.
B. Plaintifrs Prior Attempts to Obtain Relief
On August 10, 1995, plaintiff submitted an application for the correction of his military
records to the Army Board for Correction of Military Records ("ABCMR"), requesting that his
separation from the Army be converted to a disability retirement, entitling him to disability
retirement pay. He contended that he did not have the medical evidence he needed at the time of
his separation to establish that he should have been retired for disability. He also contended that
at the time of his separation, the Army was engaged in a reduction of force, and he was qualified
to retire due to his time in service. 7
The ABCMR obtained an advisory opinion from the Army Physical Disability Agency.
The Agency first remarked that it had no objection to plaintiff being retired under the military's
early retirement authority if plaintiff so qualified. The Agency then concluded that plaintiff had
not offered any medical evidence establishing that the PEB 's findings were erroneous, that the
higher disability ratings assigned by the United States Department of Veterans Affairs ("VA")
6
At the time of the PEB, plaintiff had served in the Army for more than seventeen-and-
one-half years.
7
The Temporary Early Retirement Authority provision of the National Defense
Authorization Act for Fiscal Year 1993 amended 10 U.S.C. § 3914 to grant the Army the
discretion to allow enlisted members to request retirement if, between October 23, 1992, and
October 1, 1995, they had more that fifteen, but less than twenty, years of service. See Pub. L.
No. 102-484, § 4403, 106 Stat. 2315, 2702-04 (1992) (codified in relevant part at 10 U.S.C.
§ 3914 note). The provision also granted the Army the authority to "prescribe regulations and
policies regarding the criteria for eligibility for early retirement ... and for the approval of
applications for such retirement." Id. § 4403(d).
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after plaintiffs separation from the Army did not indicate that the PEB' s findings were
erroneous,' and that the PEB' s findings were not, in fact, erroneous.
The ABCMR denied plaintiffs application on February 27, 1997. It determined that
plaintiff was not eligible for early retirement, 9 that the PEB's findings were proper, and that the
disability ratings assigned by the VA had no bearing on the propriety of the PEB' s findings.
Consequently, the ABCMR concluded that plaintiff had not provided sufficient evidence of a
probable error or injustice.
Plaintiff submitted another application to the ABCMR on April 13, 2010, again
requesting that his separation from the Army be converted to a disability retirement, entitling him
to disability retirement pay. He contended that the PEB should have assigned him a 30% rating,
that the PEB did not consider either his existing cervical damage or the fact that one of his legs
was shorter than the other. 10 He further contended that due to his disability, he had been unable
to review his medical records at the time of his separation, and that, in any event, his entire
medical record was not available to him.
As reflected in an October 7, 2010 letter addressed to plaintiff, the Army Review Boards
Agency treated plaintiffs new application as a request for reconsideration of the ABC MR' s
February 27, 1997 decision. The Agency advised plaintiff that Army regulations allow an
applicant to request reconsideration of an ABCMR decision if the request is received within one
year of the original decision and the applicant has not previously requested reconsideration. It
further explained that because plaintiff did not submit his request for reconsideration within one
year of the ABCMR's February 27, 1997 decision, the ABCMR was returning the application to
plaintiff without taking further action. Finally, the Agency cautioned plaintiff that the ABCMR
would not entertain any further requests for reconsideration, and advised plaintiff that he had "the
option to seek relief in a court of appropriate jurisdiction."
Rather than filing suit, plaintiff pursued his request for relief by contacting his
congressional representative, who forwarded plaintiffs inquiry to the Army. On December 17,
2014, the Army Human Resource Service Center advised the congressman that plaintiff was not
entitled to disability retirement pay and that plaintiff had previously, and unsuccessfully,
petitioned the ABCMR to obtain such pay. The Center further advised the congressman that
8
The VA assigned plaintiff a 20% rating for his back pain on August 1, 1994, and
increased that rating to 70% effective February 22, 1995.
9
According to the ABCMR, the Army limited eligibility for early retirement to soldiers
serving in certain identified specialties who would depart active duty service by August 31, 1993.
10
The difference in leg lengths was noted during a May 20, 1992 orthopedic consultation
and the April 20, 1993 medical evaluation performed in South Korea.
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plaintiff could "reapply by submitting new, substantial, and relevant evidence not previously
considered by the Board." The congressman forwarded this response to plaintiff on December
22, 2014.
Approximately three months later, on March 12, 2015, plaintiff submitted a third
application to the ABCMR in which he indicated that there was new evidence not previously
considered by the ABC MR, including evidence of his mental health. 11 The Army Review Boards
Agency acknowledged receipt of plaintiff's application in letters dated April 3, 2015, and
October 21, 2015. Ultimately, however, on February 1, 2016, the ABCMR returned the
application to plaintiff as an untimely request for reconsideration, again advising him that he had
"the option to seek relief in a court of appropriate jurisdiction."
C. Plaintiff's Suit in This Court
Plaintiff filed a complaint in this court on August 10, 2017, along with an application to
proceed in forma pauperis. In his complaint, plaintiff asserts that he was "unjustly and
erroneously discharged" from the Army with disability severance pay, and instead should have
been retired with disability retirement pay pursuant to 10 U.S.C. § 1201. In support of his claim,
plaintiff alleges that he did not receive proper medical care while he was stationed at Fort
Monmouth between 1991and1993, and that one of his superior officers purposely sought to
harm his career by damaging him physically and causing him mental anguish. He further
contends that the Army was negligent in sending him to South Korea because his physician at
Walter Reed Army Medical Center directed that his physical activities be limited for six months
and because his physical condition rendered him undeployable. Plaintiff also asserts that his
deployment to South Korea caused him additional physical damage-particularly as a result of the
truck ride to Camp Casey-and mental anguish.
Then, after the PEB issued its report, plaintiff alleges, he was not provided the
opportunity to appeal the PEB's findings and recommendations without new medical evidence,
which he could not obtain due to his weakened medical condition and his unfamiliarity with the
proper procedures. Plaintiff also criticizes the Army for failing to provide him with legal counsel
to assist him throughout the MEB and PEB proceedings, or with a psychiatric evaluation prior to
his separation. In addition, plaintiff contends that the Army lied to him when it advised him that
his severance pay was compensation for his service because the VA has been recouping the
severance pay on a monthly basis from his disability payments. 12 In fact, plaintiff asserts,
because Camp Casey is located near the Korean Demilitarized Zone, he should have received
11
Plaintiff sought a mental health evaluation from the VA in 2015, and was provisionally
diagnosed with posttraumatic stress disorder.
12
"The amount of disability severance pay received" by a former service member "shall
be deducted from any compensation for the same disability to which the former member ...
become[s] entitled under any law administered by the [VA]." 10 U.S.C. § 1212(c).
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combat pay, his severance pay should not be recouped from his VA disability payments, and he
should not be required to pay income taxes.
Ultimately, plaintiff requests that the court direct the Army to retroactively increase
his disability rating to 50% and provide him with disability retirement pay and benefits
retroactive to his discharge date. 13
On November 8, 2017, defendant moved to dismiss plaintiffs complaint for lack of
jurisdiction pursuant to Rule 12(b)(l) of the Rules of the United States Court of Federal Claims
("RCFC"). Specifically, defendant contends that plaintiffs claim for disability retirement pay
and benefits is barred by the six-year limitations period set forth in 28 U.S.C. § 2501. 14 In his
response, filed on November 27, 2017, plaintiff argues that the court possesses jurisdiction to
entertain his complaint because 10 U.S.C. § 1201 is a money-mandating statute and because the
ABCMR issued its most recent decision less than six years before he filed suit. Plaintiff further
suggests that he is entitled to a disability retirement pursuant to the 2008 law that created the
Physical Disability Board of Review ("PDBR"), see 10 U.S.C. § 1554a (2012), and that his
length of active duty service-seventeen years, eight months, and fifteen days-qualified him to be
retained on active duty until he was eligible for retirement, see 10 U.S.C. § 1176. Defendant
filed a reply in support of its motion to dismiss on December 14, 2017, maintaining its position
that this court lacks jurisdiction to entertain plaintiffs complaint. Briefing is now complete, and
the court deems oral argument unnecessary.
13
Notwithstanding plaintiffs allegations that the Army provided inadequate medical care
and caused him physical harm and mental anguish, plaintiff clarified in his response to
defendant's motion to dismiss that he was not alleging any tort claims or seeking punitive
damages.
14
Defendant also contends that the United States Court of Federal Claims ("Court of
Federal Claims") lacks jurisdiction to entertain allegations of physical and mental harm, which
sound in tort, or to award punitive damages. Defendant is correct. See 28 U.S.C. § 149l(a)(l)
(2012) (excluding claims sounding in tort from the jurisdiction of the Court of Federal Claims);
Alves v. United States, 133 F.3d 1454, 1459 (Fed. Cir. 1998) ("To the extent that ... allegations
sound in tort, the Court of Federal Claims lacks jurisdiction under the Tucker Act .... "); Garner
v. United States, 230 Ct. CL 941 (1982) ("[T]he granting of ... punitive damages [is] not within
the jurisdiction of this court. Similarly, relief for mental distress and psychological damage is
founded in tort, which is also outside of the jurisdiction of this court." (citations omitted)); Curiy
v. United States, 609 F.2d 980, 983 (Ct. Cl. 1979) (declaring the torts of emotional distress and
anguish as outside of the court's jurisdiction). However, plaintiff clarified in his response to
defendant's motion to dismiss that he was not alleging any tort claims or seeking punitive
damages. See supra note 13.
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II. DISCUSSION
A. Standard of Review
When considering whether to dismiss a complaint for lack of jurisdiction pursuant to
RCFC l 2(b)(1 ), a court assumes that the allegations in the complaint are true and construes those
allegations in the plaintiffs favor. Trusted Integration, Inc. v. United States, 659 F.3d 1159,
1163 (Fed. Cir. 2011). However, plaintiffs proceeding prose are not excused from meeting basic
jurisdictional requirements, Henke v. United States, 60 F.3d 795, 799 (Fed. Cir. 1995), even
though the court holds their complaints to "less stringent standards than formal pleadings drafted
by lawyers," Haines v. Kerner, 404 U.S. 519, 520-21 (1972). In other words, a plaintiff
proceeding pro se must prove, by a preponderance of the evidence, that the court possesses
jurisdiction. See McNutt v. Gen. Motors Acceptance Com., 298 U.S. 178, 189 (1936); Trusted
Integration. Inc., 659 F.3d at 1163. If the court finds that it lacks subject matter jurisdiction over
a claim, RCFC 12(h)(3) requires the court to dismiss that claim.
B. Jurisdiction
Whether the court has jurisdiction to decide the merits of a case is a threshold matter. See
Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). "Without jurisdiction the
court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is that of announcing the fact and
dismissing the cause." Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). The parties or the
court sua sponte may challenge the existence of subject matter jurisdiction at any time. Arbaugh
v. Y & H Com., 546 U.S. 500, 506 (2006).
The ability of the Court of Federal Claims to entertain suits against the United States is
limited. "The United States, as sovereign, is immune from suit save as it consents to be sued."
United States v. Sherwood, 312 U.S. 584, 586 (1941). The waiver of immunity "cannot be
implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4 (1969).
Further, "[w]hen waiver legislation contains a statute oflimitations, the limitations provision
constitutes a condition on the waiver of sovereign immunity." Block v. North Dakota ex rel. Bd.
of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983).
The Tucker Act, the principal statute governing the jurisdiction of this court, waives
sovereign immunity for claims against the United States that are founded upon the United States
Constitution, a federal statute or regulation, or an express or implied contract with the United
States. 28 U.S.C. § 1491(a)(l). However, the Tucker Act is merely a jurisdictional statute and
"does not create any substantive right enforceable against the United States for money damages."
United States v. Testan, 424 U.S. 392, 398 (1976). Instead, the substantive right must appear in
another source oflaw, such as a "money-mandating constitutional provision, statute or regulation
that has been violated, or an express or implied contract with the United States." Loveladies
Harbor. Inc. v. United States, 27 F.3d 1545, 1554 (Fed. Cir. 1994) (en bane). In addition, to fall
-8-
within the jurisdiction of the Court of Federal Claims, any claim against the United States filed in
the court must be "filed within six years after such claim first accrues." 28 U.S.C. § 2501; see
also John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133-35 (2008) (providing that
the limitations period set forth in 28 U.S.C. § 2501 is an "absolute" limit on the ability of the
Court of Federal Claims to reach the merits ofa claim).
C. Plaintiff Has Alleged Claims Arising Under Money-Mandating Statutes
In his complaint, plaintiff claims entitlement to disability retirement pay and benefits
pursuant to 10 U.S.C. § 1201. He also suggests, in his response to defendant's motion to
dismiss, that he should have been retained on active duty until he was eligible for retirement
pursuant to 10 U.S.C. § 1176, which provides that a soldier
who is selected to be involuntarily separated, ... and who on the date on which
the member is to be discharged is within two years of qualifying for retirement
under [10 U.S.C. § 3914] ... , shall be retained on active duty until the [soldier] is
qualified for retirement ... , unless the [soldier] is sooner retired or discharged
under any other provision oflaw.
There is no dispute that 10 U.S.C. § 1201 is a money-mandating statute. See Fisher v. United
States, 402 F.3d 1167, 1174-75 (Fed. Cir. 2005) (panel portion). Further, plaintiffs suggestion
that he should have been retained on active duty until he was eligible for retirement is, in
essence, a claim for military retirement pay, and statutes authorizing retirement pay-such as 10
U.S.C. §§ 3929, 3991-are money-mandating. See Lewis v. United States, 458 F.3d 1372, 1376
n.2 (Fed. Cir. 2006) (citing statutes relating to the retirement pay of officers of the United States
Navy and the United States Marine Corps that are analogous to the Army's retirement pay
statues); Piotrowski v. United States, No. 13-760C, 2014 WL 7476033, at *8-9 (Fed. Cl. Dec. 30,
2014) ("[T]he court finds that the Army retirement pay statutes are money-mandating and serve
as a basis for this court's jurisdiction over plaintiffs retirement pay claim."), aff d, No.
2015-5098, 2018 WL 388488 (Fed. Cir. Jan. 12, 2018) (unpublished per curiam decision).
In contrast, the statute creating the PDBR, 10 U.S.C. § 1554a, is not a money-mandating
source of jurisdiction. Created by Congress in January 2008, the PDBR is charged with
reviewing the findings and decisions of PEBs for former service members who were medically
separated from service between September 11, 2001, and December 31, 2009, with a disability
rating of20% or less. 10 U.S.C. § 1554a(a)-(b). Upon such a review, the PDBR may make the
following recommendations to the Secretary of the pertinent military department:
(I) No recharacterization of the separation of such individual or modification of
the disability rating previously assigned such individual.
(2) The recharacterization of the separation of such individual to retirement for
disability.
-9-
(3) The modification of the disability rating previously assigned such individual
by the Physical Evaluation Board concerned, which modified disability rating may
not be a reduction of the disability rating previously assigned such individual by
that Physical Evaluation Board.
(4) The issuance of a new disability rating for such individual.
Id.§ 1554a(d). The relevant Secretary is authorized to correct the military records of the former
service member in accordance with the PDBR's recommendation, id.§ 1554a(e)(l), and such a
correction may entitle the service member to additional pay and benefits, id. § 1554a(e)(2).
However, the source of the right to that pay is not 10 U.S.C. § 1554a, but instead is another
statute, such as 10 U.S.C. § 1201. See Martinez v. United States, 333 F.3d 1295, 1315 (Fed. Cir.
2003) (en bane) (holding that the statute governing the military correction boards, 10 U.S.C.
§ 1552, "is 'money-mandating' in the sense that it requires that the government grant monetary
relief to a service member ifthe correction board determines that the service member's record
should be corrected in a way that entitles the service member to back pay," but is not itself "the
source of the right to back pay"). Thus, the court lacks jurisdiction to entertain any claim by
plaintiff that 10 U.S.C. § 1554a offers him relief. 15
D. Plaintiff's Claims Are Barred by the Statute of Limitations
Although plaintiff has asserted claims under money-mandating statutes, those claims
must be timely filed for the court to exercise its jurisdiction to rule upon their merits. Pursuant to
28 U.S.C. § 2501, a claim is timely ifit is "filed within six years after such claim first accrues."
"A cause of action cognizable in a Tucker Act suit accrues as soon as all events have occurred
that are necessary to enable the plaintiff to bring suit, i.e., when 'all events have occurred to fix
the Government's alleged liability, entitling the claimant to demand payment and sue here for his
money."' Martinez, 333 F.3d at 1303 (quoting Nager Elec. Co. v. United States, 368 F.2d 847,
851 (Ct. Cl.1966)).
1. Plaintiff's Claim for Disability Retirement Pay and Benefits
The United States Court of Appeals for the Federal Circuit has succinctly summarized the
rules for determining when a claim for disability retirement pay and benefits accrues:
The generally accepted rule is that claims of entitlement to disability
retirement pay do not accrue until the appropriate board either finally denies such
a claim or refuses to hear it. The decision by the first statutorily authorized board
which hears or refuses to hear the claim is the triggering event. If at the time of
discharge an appropriate board was requested by the service member and the
15
The court also notes that plaintiff is not eligible to have his case heard by the PDBR
because he was medically separated from service before September 11, 200 I.
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request was refused or ifthe board heard the service member's claim but denied it,
the limitations period begins to run upon discharge. A subsequent petition to the
corrections board does not toll the running of the limitations period; nor does a
new claim accrue upon denial of the petition by the corrections board.
Real v. United States, 906 F.2d 1557, 1560 (Fed. Cir. 1990) (citations omitted); accord
Chambers v. United States, 417 F.3d 1218, 1221, 1224-25, 1227 (Fed. Cir. 2005); Martinez, 333
F.3d at 1311-15. Statutorily authorized military boards whose decisions can trigger the running
of the six-year limitations period include PEBs and the ABCMR. Chambers, 417 F.3d at 1225 &
n.2.
In this case, a PEB was convened to consider plaintiff's fitness for duty, and it ultimately
determined-in October 1993-that plaintiff should be separated, and not retired, due to his
disabling lower back pain. Thus, pursuant to precedent binding on this court, plaintiff's claim for
disability retirement pay and benefits accrued on the date of his discharge-November 15, 1993.
This accrual date, moreover, is not affected by plaintiff's subsequent applications to the ABCMR
for disability retirement pay and benefits or by the ABCMR's denial or rejection of those
applications. In short, because plaintiff did not file suit in this court within six years of his
separation from the Army, his claim for disability retirement pay and benefits is barred by 28
u.s.c. § 2501.
2. Plaintiff's Suggested Claim for Retirement Pay
Plaintiff's suggestion that he should have been retained on active duty until he was
eligible for retirement fares no better under 28 U.S.C. § 2501. In essence, plaintiff is asserting a
claim for back retirement pay premised on an allegation that he was improperly discharged from
the Army. Such claims accrue on the date of discharge. See Roth v. United States, 378 F.3d
1371, 1384 (Fed. Cir. 2004) ("[A]n involuntarily discharged or mandatorily retired officer must
bring his or her Tucker Act action in the Court of Federal Claims within six years of the date of
discharge or retirement."); Martinez, 333 F.3d at 1303-04 ("In a military discharge case, this
court and the Court of Claims have long held that the plaintiff's cause of action for back pay
accrues at the time of the plaintiffs discharge .... If the plaintiff does not file suit within the
six-year limitation period prescribed in 28 U.S.C. § 2501, the plaintiff loses all rights to sue for
the loss of pay stemming from the challenged discharge."), 1313 ("The cause of action in [the
plaintiff's] Tucker Act suit was for the denial of money; that cause of action therefore accrued
when he was separated from active duty and his monetary injury began."). Plaintiff was
discharged from the Army on November 15, 1993. Because plaintiff filed suit more than six
years after his discharge, his claim for retirement pay is time-barred.
III. APPLICATION TO PROCEED IN FORMA PAUPERIS
As previously noted, plaintiff filed, concurrent with his complaint, an application to
proceed in forma pauperis. Pursuant to 28 U.S.C. § 1915, the Court of Federal Claims may
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waive filing fees and security under certain circumstances. See 28 U.S.C. § 1915(a)(l); see also
Hayes v. United States, 71 Fed. CL 366, 366-67 (2006) (concluding that 28 U.S.C. § 1915(a)(l)
applies to both prisoners and nonprisoners alike). Plaintiffs wishing to proceed in forma pauperis
must submit an affidavit that lists all of their assets, declares that they are unable to pay the fees
or give the security, and states the nature of the action and their belief that they are entitled to
redress. 28 U.S.C. § 1915(a)(l). Here, plaintiff has satisfied all three requirements.
Accordingly, the court grants plaintiffs application and waives his filing fee.
IV. CONCLUSION
There is no dispute that plaintiff conducted himself honorably and with distinction in the
Army for almost eighteen years until his lower back pain and other ailments prevented him from
being able to perform his duties. And, the court understands plaintiffs belief that he was ill-
served by the Army at the time of his discharge. However, the court's ability to entertain
lawsuits-including plaintiffs lawsuit-is constrained by the statute of limitations and the binding
case law construing that statute.
In sum, plaintiffs claims accrued on the date of his discharge from the Army, which
occurred more than six years before he filed his complaint in this court. Therefore, the court
GRANTS defendant's motion to dismiss and DISMISSES plaintiffs complaint for lack of
jurisdiction. The court also GRANTS plaintiffs application to proceed in forma pauperis. No
costs. The clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
Judge
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