Tolar v. United States ( 2018 )

RIGINAL
3Jn tbe Wniteb ~tates 28 U.S.C. § 2501. A claim accrues when "all events have occurred to fix
the Government's alleged liability, entitling the claimant to demand payment and sue" for
the money owed. Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003).
Retirement is the latest possible accrual date when a veteran challenges the military's
failure to promote him during active service. Osborn v. United States, 4 7 Fed. Cl. 224,
233-34 (2000). Appeals to a correction board are irrelevant to the question of claim
accrual. See Martinez, 333 F.3d at 1304-05.
Although Mr. Tolar does not allege when he submitted his request for an officer
commission, his 2014 BCNR petition states that he applied for the Medical Service Corps
program in 1990 and in 1991. Mot. Dismiss App. 2. Therefore, Mr. Tolar's claims for
promotion and an officer commission accrued from the date of the Navy's decision not to
act on his request in 1991. Further, Mr. Tolar's claim for any additional retirement pay
under this higher rank accrued as of his retirement in 1995. Because Mr. Tolar brought
these claims more than six years after they accrued, they are time barred.
The Government also successfully argues that Mr. Tolar's claims for retroactive
promotion and for pay based on the higher rank that Mr. Tolar claims he is entitled to are
non-justiciable and fail to state a claim on which relief can be granted. Thousands of
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"routine personnel decisions regularly made by the services . . . are variously held
nonjusticiable." Voge v. United States, 844 F.2d 776, 780 (Fed. Cir. 1988). Judicial review
is only appropriate where the military's discretion is limited and Congress has established
tests for measuring the military's conduct, or where a court reviews only whether the
military properly followed its own procedures. Murphy v. United States, 993 F.2d 871,
873 (Fed. Cir. 1993). For a claim based on procedural error, a claimant must show a nexus
between the error and the adverse promotion decision. See Lindsay v. United States, 295
F.3d 1252, 1259 (Fed. Cir. 2002).
According to Mr. Tolar's complaint, the Navy never notified him about whether his
1990 and 1991 requests were approved or rejected. It is not clear whether Mr. Tolar alleges
that the Navy committed a procedural or a substantive error, but Mr. Tolar's claim fails
either way. IfMr. Tolar's claim is substantive, then it is non-justiciable because the Navy's
substantive decision not to promote Mr. Tolar was committed to military discretion. IfMr.
Tolar's claim is procedural, then Mr. Tolar fails to state a claim because he cannot identify
a nexus between a procedural error and his adverse promotion decision. See Comp!. at 3.
Mr. Tolar merely questions why he was never notified about whether his request was
approved or rejected: "Could Administrative error be the reason?" Id.Finally, the Court of Federal Claims cannot order an award of money damages based
on retroactive appointment or promotion. Dysart v. United States, 369 F.3d 1303, 1317-
18 (Fed. Cir. 2004). Therefore, with respect to Mr. Tolar's request for backpay based on
retroactive promotion, Mr. Tolar also fails to state a claim for this reason.
Conclusion
Unfortunately for Mr. Tolar, ifhe ever had a valid and justiciable claim against the
United States, the time to bring that claim has long since expired. The Court is thankful
for Mr. Tolar's service, but the Court is not empowered to act on his claim.
For the reasons above, the Court GRANTS the Government's motion to dismiss.
The Clerk is directed to dismiss the complaint with prejudice.
IT IS SO ORDERED.
w``c.~
THOMAS C. WHEELER
Judge
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