Garcia-Gines v. United States ( 2017 )


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  • back" on January 11, 1991, which caused him to have "short term memory loss,
    cerebrospinal fluid leak, and periods of unconsciousness during the Persian Gulf War."
    Defendant has moved to dismiss plaintiff's complaint pursuant to Rule 12(b) of the Rules
    of the United States Court of Federal Claims (RCFC) for lack of jurisdiction.
    In his complaint, plaintiff asserts that he "first joined the military on March 1, 1972,
    had two breaks in service, and served over 19 years of honorable military service in
    combination with the Air National Guard and Inactive Reserve." According to documents
    submitted to the court by both parties, it appears that plaintiff was active in military service
    from March 1, 1972 to February 22, 1974, and May 20, 1974 to May 19, 1977, and
    September 29, 1983 to May 3, 1995. 1 Plaintiff alleges that he suffered "a head injury to
    the front of the head" on January 11, 1991 during active military service when he was
    involved in a vehicular collision. According to plaintiff, he was traveling as a passenger in
    a "two and one-half ton truck" that was "rammed from the rear at a high rate of speed by
    a Saudi truck causing the plaintiff injuries not only to the head, neck, and back but also
    short term memory loss and leakage of spinal brain fluid through the nose." After the
    collision, plaintiff was diagnosed with degenerative joint disease of the lumbar spine.
    Approximately four years after the incident, on May 3, 1995, plaintiff was discharged from
    active service due to physical disability.
    Prior to his discharge from the Army, plaintiff's medical condition was reviewed by
    a medical evaluation board (MEB) and by an informal physical evaluation board (PEB).
    On December 15, 1994, the MEB determined that plaintiff had "Degenerative joint disease
    of the lumbar spine," with an approximate date of origin in "Dec 1991." The MEB
    determined that plaintiff was unfit for continued military service. Plaintiff signed "DA
    FORM 3947," stating that he had been informed of the approved findings and
    recommendation of the MEB and that he agreed with the MEB's findings and
    recommendation. The MEB referred plaintiff to a PEB.
    In a decision issued on January 3, 1995, an informal PEB described plaintiff's
    disabilities as follows:
    Degenerative joint disease of lumbar spine, progressive symptomology
    since motor vehicle accident Dec 1991 in Saudi Arabia.
    Your functional limitations in maintaining the appropriate level of mobility
    and agility, caused by the physical impairments recorded above, make you
    unfit to perform the duties required of a SSG in your MOS of a Fire Support
    Forward Observer.
    1 In considering defendant's motion to dismiss, the court considered the administrative
    record, including all evidence relevant to the jurisdictional facts alleged in the complaint.
    See Banks v. United States, 
    741 F.3d 1268
    , 1277 (Fed. Cir. 2014) ("If a motion to dismiss
    for lack of subject matter jurisdiction ... challenges the truth of the jurisdictional facts
    alleged in the complaint, the district court may consider relevant evidence in order to
    resolve the factual dispute.").
    2
    It is noted that your disability rating is less than 30 percent. For soldiers with
    a disability rating of less than 30 percent and with less than 20 years of
    service, AR 635-40 requires separation from service with severance pay.
    The Board finds that your condition occurred in the line of duty, not due to
    your own misconduct.
    Since you have service-connected medical conditions, you should contact
    a Veterans Administration counselor to learn about available benefits such
    as disability compensation, rehabilitation programs, insurance programs,
    employment assistance, home loans, and medical care benefits.
    The informal PEB concluded that plaintiff was physically unfit and recommended a
    combined disability rating of 20 percent and that plaintiff's disposition be characterized as
    "Separation with severance pay if otherwise qualified."
    The informal PEB also made the following "RECOMMENDED FINDING":
    A. THE MEMBER'S RETIREMENT IS NOT BASED ON DISABILITY
    FROM INJURY OR DISEASE RECEIVED IN THE LINE OF DUTY AS
    A DIRECT RESULT OF ARMED CONFLICT OR CAUSED BY AN
    INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY
    DURING A PERIOD OF WAR AS DEFINED BY LAW.
    B. EVIDENCE OF RECORD REFLECTS THE INDIVIDUAL WAS NOT A
    MEMBER OR OBLIGATED TO BECOME A MEMBER OF AN ARMED
    FORCE OR RESERVE THEREOF ... ON 24 SEPTEMBER 1975.
    C. THE DISABILITY DID NOT RESULT FROM A COMBAT RELATED
    INJURY AS DEFINED IN 26 U.S.C. 104.
    Plaintiff concurred with the informal PEB's findings and recommendations. On January 5,
    1995, plaintiff signed a form indicating that he had been advised of the findings and
    recommendations of the informal PEB and had received a full explanation of the results
    of the findings and recommendations and legal rights that pertained to the informal PEB
    decision. Plaintiff signed a form stating "I CONCUR AND WAIVE A FORMAL HEARING
    OF MY CASE." The informal PEB findings and recommendations were approved by the
    Secretary of the Army on January 6, 1995.
    As a result of the MES and informal PEB proceedings, plaintiff was discharged
    from active duty service due to physical disability on May 3, 1995. Plaintiff's discharge is
    described on his DD Form 214, which states that his discharge was honorable and the
    reason for separation is "DISABILITY, SEVERANCE PAY." The DD Form 214 includes a
    description of plaintiff's record of service and explains that plaintiff's "Net Active Service
    This Period" was 11 years, 7 months, and 5 days. The DD Form 214 also explains that
    plaintiff's "Total Prior Inactive Service" was 2 months and 28 days.
    Approximately 11 years after plaintiff was discharged from the Army due to his
    physical disability, on September 14, 2006, plaintiff filed a request with the Army Board
    for Correction of Military Records (ABCMR) to change his DD Form 214 from "Disability
    3
    Severance Pay to Permanent Retirement." Plaintiff also requested a change to his
    disability rating and asserted that "the percentage granted on the DA Form 199 is unfair
    and unjustifiable .... " In his request to the ABCMR, plaintiff acknowledged the lapse in
    time between his discharge and his request to change his military records: "I understand
    that a prolonged period of time has elapsed since the statement was issued, but I am
    pleading to you to uphold the name of justice due to a combat veteran who was dedicated
    to the mission first at all times." On April 12, 2007, the ABCMR notified plaintiff, in a letter,
    that his request to change his medical separation with severance pay to a medical
    disability retirement had been denied on April 5, 2007. In its denial decision, the ABCMR
    explained that "Title 10, U.S. Code, Section 1552(b), provides that applications for
    correction of military records must be filed within 3 years after discovery of the alleged
    error or injustice" and that the ABCMR can "excuse failure to file within the 3-year statute
    of limitations if the ABC MR determines that it would be in the interest of justice to do so."
    The ABCMR explained that plaintiff did not file his request for correction of his military
    records within the three-year statute of limitations and "that the evidence presented does
    not demonstrate the existence of a probable error or injustice." The ABCMR determined
    that "there is no evidence provided which shows that it would be in the interest of justice
    to excuse the applicant's failure to timely file this application within the 3-year statute of
    limitations prescribed by law." The April 12, 2007 letter that informed plaintiff of the
    ABCMR's denial decision explained, "[t]his decision in your case is final. You may request
    reconsideration of this decision within one year only if you can present new evidence or
    argument that was not considered by the Board when it denied your original application. "2
    2 Separate from plaintiff's request to upgrade his retirement characterization on his DD
    Form 214, on January 7, 2009, plaintiff filed a second application for correction of his
    military records on the basis that his military personnel file did not accurately describe
    plaintiff's total time in service. Plaintiff asserted: "MY TOTAL MILITARY SERVICE WAS
    NOT ADDED CORRECTLY AT THE TIME OF DISCHARGE I WAS BEING SEPARATED
    MEDICALLY AND DUE TO HEAD TRAUMA AND VARIOUS OTHER INJURIES I WAS
    UNABLE TO GATHER ALL OF MY MILITARY DOCUMENTATION TO COMPUTE
    CORRECT DATA." On May 13, 2009, the ABC MR notified plaintiff that his request was
    granted to correct his total time in service on his DD Form 214, and the ABCMR noted
    that plaintiff did not file within the three-year statute of limitations. Notwithstanding the
    lateness of plaintiff's request, the ABCMR determined "it is in the interest of justice to
    excuse the applicant's failure to timely file" in order to correct his records with regard to
    "the computation of the applicant's total service." The ABCMR determined that, at the
    time he was discharged from the Army, plaintiff's DD Form 214 incorrectly reflected only
    two months and 28 days of total prior inactive service, when, in fact, plaintiff plaintiff's total
    prior inactive service was two years, seven months, and 21 days total. Accordingly, the
    ABCMR recommended that "all Department of the Army records of the individual
    concerned be corrected by amending item 12e on his DD Form 214 for the period ending
    3 May 1995 to show 2 years, 7 months, and 21 days total prior inactive service." On
    August 18, 2009, the Army notified plaintiff that his records had been corrected in
    accordance with the ABCMR decision.
    4
    On January 15, 2010, plaintiff filed another request to the ABC MR for the
    correction of his military records seeking to change his discharge characterization on his
    DD Form 214 "to read ('Retirement, Disability Permanent'['] ... with the appropriate
    medical retirement percentage .... " The ABCMR considered plaintiff's request as an
    untimely request for reconsideration of the ABCMR's April 5, 2007 decision denying
    plaintiff's similar request on September 14, 2006. On June 9, 2010, the ABCMR notified
    plaintiff that "[t]he staff of the ABC MR reviewed your request and determined that it was
    a request for reconsideration and that your request for reconsideration was not received
    within one year of the ABCMR's original decision" on April 5, 2007. The June 9, 2010
    letter to plaintiff stated that "[t]he ABCMR will not consider any further requests for
    reconsideration of this matter. However, you have the option to seek relief in a court of
    appropriate jurisdiction."
    Shortly after the ABCMR's letter to plaintiff on June 9, 2010, plaintiff's spouse sent
    a letter on June 17, 2010 also seeking reconsideration of plaintiff's case "due [to]
    extenuating circumstances that caused a lapse in time for the filing" of plaintiff's request
    to correct his military records. The ABCMR responded to plaintiff's wife in a letter on
    December 13, 2010, which explained that the ABCMR's decision on June 9, 201 O "was
    the final administrative action taken by the Secretary of the Army. There is no further
    action contemplated by the ABCMR since he [plaintiff] is not eligible for further
    reconsideration by this Board." In this letter, the ABCMR indicated, again, that it would
    not consider any further requests for reconsideration and that plaintiff had the option to
    seek relief in a court of appropriate jurisdiction.
    On September 9, 2014, plaintiff submitted another request to the ABCMR seeking
    to change his discharge to a retirement due to permanent disability and to increase his
    disability percentage rating. In response, the ABCMR sent plaintiff a letter on September
    25, 2014 explaining that plaintiff's request was considered by the ABCMR in April of 2007
    and that plaintiff had previously requested reconsideration of the April 2007 decision in
    2010. Similar to the ABCMR's letters to plaintiff on June 9, 201 O and December 13, 2010,
    the September 25, 2014 letter to plaintiff explained that the decision denying
    reconsideration of plaintiff's request was the final administrative action and that no further
    action would be contemplated by the ABCMR. The September 25, 2014 letter stated that
    the ABCMR would not consider further requests for reconsideration and that plaintiff had
    the option to seek relief in a court of appropriate jurisdiction.
    Approximately two years after the ABCMR's September 25, 2014 letter, and
    approximately 20 years after his discharge from the Army, plaintiff filed his complaint in
    this court seeking "compensatory damages in the sum of $238,724.90 and additional
    cost-of living adjustments increases," as well as an "[i]ncrease in medical percentages to
    equal 30 percent or more and military retirement benefits in accordance with Veterans
    Affairs Schedule for Rating Disabilities and related precepts, laws, and army regulations."
    In this court, plaintiff also requests that his "final separation document DD Form 214 is
    corrected to read: Type of Separation Retirement and Narrative Reason for Separation:
    Disability." (emphasis in original). In his complaint, plaintiff asserts that "Military and
    Physical Evaluation Board proceedings at time of discharge failed to abide by Army
    Regulations by not correctly adding his total time in service and by stating on his Physical
    Evaluation Board proceedings that he was not in the military before September 24, 1975,
    5
    and combat-related injuries were not incurred in line of duty during a time of national
    emergency after September 14, 1978." Plaintiff also alleges that his "injuries were 'passed
    over' from the Medical Evaluation Board and Physical Evaluation Board Proceedings
    because medical personnel only concentrated their medical efforts and analysis on the
    plaintiff's back injury." According to plaintiff, at the time he was discharged from the Army,
    he "did not receive any type of direct legal counseling and advice from the Chain-of-
    command and was in poor physical and mental condition." Plaintiff asserts that "[t]he last
    final administrative action with the Army Review Board was on September 25, 2014,"
    when, as noted above, the ABCMR stated that it would not consider any future request
    from plaintiff and that plaintiff had the option of seeking relief in court.
    Defendant has moved to dismiss plaintiff's complaint pursuant to RCFC 12(b)(1)
    for lack of ·subject matter jurisdiction because plaintiff's claims fall outside the six-year
    statute of limitations set forth in 28 U.S.C. § 2501 (2012), and, therefore, are time-barred.
    Defendant points out that the applicable statute of limitations is jurisdictional and may not
    be waived because it implicates the waiver of sovereign immunity. Defendant argues that,
    in the context of claims seeking disability retirement pay, the claim must be filed in this
    court within six years of a plaintiff's discharge when, at the time of discharge, an
    appropriate board has already heard and denied plaintiff's claim for disability. Plaintiff filed
    an opposition to defendant's motion to dismiss that reiterates the allegations in plaintiff's
    complaint and argues that his claims fall within the six-year statute of limitations because
    "his claim did not come into existence until the Army Correction Boards and Secretary of
    the Army rendered its final administrative action on September 25, 2014."
    DISCUSSION
    The court recognizes that plaintiff is proceeding pro se, without the assistance of
    counsel. When determining whether a complaint filed by a pro se plaintiff is sufficient to
    invoke review by a court, pro se plaintiffs are entitled to liberal construction of their
    pleadings. See Haines v. Kerner, 
    404 U.S. 519
    , 520-21 (requiring that allegations
    contained in a prose complaint be held to "less stringent standards than formal pleadings
    drafted by lawyers"}, reh'g denied, 
    405 U.S. 948
    (1972); see also Erickson v. Pardus, 
    551 U.S. 89
    , 94 (2007); Hughes v. Rowe, 
    449 U.S. 5
    , 9-10 (1980); Estelle v. Gamble, 
    429 U.S. 97
    , 106 (1976), reh'g denied, 
    429 U.S. 1066
    (1977); Matthews v. United States, 
    750 F.3d 1320
    , 1322 (Fed. Cir. 2014); Diamond v. United States, 
    115 Fed. Cl. 516
    , 524, aff'd,
    
    603 F. App'x 947
    (Fed. Cir.), cert. denied 
    135 S. Ct. 1909
    (2015). "However, "'[t]here is
    no duty on the part of the trial court to create a claim which [the plaintiff] has not spelled
    out in his [or her] pleading."' Lengen v. United States, 
    100 Fed. Cl. 317
    , 328 (2011)
    (alterations in original) (quoting Scogin v. United States, 
    33 Fed. Cl. 285
    , 293 (1995)
    (quoting Clark v. Nat'I Travelers Life Ins. Co., 
    518 F.2d 1167
    , 1169 (6th Cir. 1975))); see
    also Bussie v. United States, 
    96 Fed. Cl. 89
    , 94, aff'd, 
    443 F. App'x 542
    (Fed. Cir. 2011);
    Minehan v. United States, 
    75 Fed. Cl. 249
    , 253 (2007). "While a PJ:Q se plaintiff is held to
    a less stringent standard than that of a plaintiff represented by an attorney, the pro se
    plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a
    preponderance of the evidence." Riles v. United States, 
    93 Fed. Cl. 163
    , 165 (2010)
    (citing Hughes v. 
    Rowe, 449 U.S. at 9
    and Taylor v. United States, 
    303 F.3d 1357
    , 1359
    (Fed. Cir.) ("Plaintiff bears the burden of showing jurisdiction by a preponderance of the
    evidence."}, reh'g and reh'g en bane denied (Fed. Cir. 2002)); see also Shelkofsky v.
    6
    United States, 
    119 Fed. Cl. 133
    , 139 (2014) ("[W]hile the court may excuse ambiguities
    in a pro se plaintiff's complaint, the court 'does not excuse [a complaint's] failures."'
    (quoting Henke v. United States, 
    60 F.3d 795
    , 799 (Fed. Cir. 1995)); Harris v. United
    States, 
    113 Fed. Cl. 290
    , 292 (2013) ("Although plaintiff's pleadings are held to a less
    stringent standard, such leniency 'with respect to mere formalities does not relieve the
    burden to meet jurisdictional requirements."' (quoting Minehan v. United States, 75 Fed.
    Cl. at 253)).
    In Mr. Garcia-Gines' case, as noted above, defendant has moved to dismiss
    plaintiff's complaint pursuant to RCFC 12(b)(1) and argues that this court does not have
    subject matter jurisdiction to consider plaintiff's complaint because it is time-barred.
    Plaintiff, however, alleges that this court has jurisdiction to consider his claim pursuant to
    "28U.S.C.§1491(a)(1)(2) (2006), 10 U.S.C. § 1201 (a)(b) (2006), and 37 U.S.C. §204(a)-
    (d) (2006)."
    In considering defendant's motion to dismiss plaintiff's complaint for lack of subject
    matter jurisdiction pursuant to RCFC 12(b)(1), the court presumes all undisputed factual
    allegations to be true and construes all reasonable inferences in plaintiff's favor. See
    Miller v. United States, 
    119 Fed. Cl. 717
    , 724 (2015). As the plaintiff, however, Mr. Garcia-
    Gines has the burden of proving that this court has subject matter jurisdiction and that his
    claim is timely. See Banks v. United 
    States, 741 F.3d at 1277
    ("In such cases, the plaintiff
    has the burden of proving subject matter jurisdiction by a preponderance of the
    evidence.").
    It is well established that '"subject-matter jurisdiction, because it involves a court's
    power to hear a case, can never be forfeited or waived."' Arbaugh v. Y & H Com., 
    546 U.S. 500
    , 514 (2006) (quoting United States v. Cotton, 
    535 U.S. 625
    , 630 (2002)).
    "[F]ederal courts have an independent obligation to ensure that they do not exceed the
    scope of their jurisdiction, and therefore they must raise and decide jurisdictional
    questions that the parties either overlook or elect not to press." Henderson ex rel.
    Henderson v. Shinseki, 
    562 U.S. 428
    , 434 (2011); see also Gonzalez v. Thaler, 132 S.
    Ct. 641, 648 (2012) ("When a requirement goes to subject-matter jurisdiction, courts are
    obligated to consider sua sponte issues that the parties have disclaimed or have not
    presented."); Hertz Corp. v. Friend, 
    559 U.S. 77
    , 94 (2010) ("Courts have an independent
    obligation to determine whether subject-matter jurisdiction exists, even when no party
    challenges it." (citing Arbaugh v. Y & H 
    Corp., 546 U.S. at 514
    )); Special Devices. Inc. v.
    OEA, Inc., 
    269 F.3d 1340
    , 1342 (Fed. Cir. 2001) ("[A] court has a duty to inquire into its
    jurisdiction to hear and decide a case." (citing Johannsen v. Pay Less Drug Stores N.W.,
    Inc., 
    918 F.2d 160
    , 161 (Fed. Cir. 1990)); View Eng'g, Inc. v. Robotic Vision Sys., Inc.,
    
    115 F.3d 962
    , 963 (Fed. Cir. 1997) ("[C]ourts must always look to their jurisdiction,
    whether the parties raise the issue or not."). "Objections to a tribunal's jurisdiction can be
    raised at any time, even by a party that once conceded the tribunal's subject-matter
    jurisdiction over the controversy." Sebelius v. Auburn Reg'I Med. Ctr., 
    133 S. Ct. 817
    , 824
    (2013); see also Arbaugh v. Y & H 
    Corp., 546 U.S. at 506
    ("The objection that a federal
    court lacks subject-matter jurisdiction ... may be raised by a party, or by a court on its
    own initiative, at any stage in the litigation, even after trial and the entry of judgment.");
    Cent. Pines Land Co., L.L.C. v. United States, 
    697 F.3d 1360
    , 1364 n.1 (Fed. Cir. 2012)
    ("An objection to a court's subject matter jurisdiction can be raised by any party or the
    7
    court at any stage of litigation, including after trial and the entry of judgment." (citing
    Arbaugh v. Y & H 
    Corp., 546 U.S. at 506
    -07)); Rick's Mushroom Serv., Inc. v. United
    States, 
    521 F.3d 1338
    , 1346 (Fed. Cir. 2008) ("[A]ny party may challenge, or the court
    may raise sua sponte, subject matter jurisdiction at any time." (citing Arbaugh v. Y & H
    
    Corp., 546 U.S. at 506
    ; Folden v. United States, 
    379 F.3d 1344
    , 1354 (Fed. Cir.), reh'g
    and reh'g en bane denied (Fed. Cir. 2004), cert. denied, 
    545 U.S. 1127
    (2005); and
    Fanning, Phillips & Molnarv. West, 
    160 F.3d 717
    , 720 (Fed. Cir. 1998))); Pikulin v. United
    States, 
    97 Fed. Cl. 71
    , 76, appeal dismissed, 
    425 F. App'x 902
    (Fed. Cir. 2011). In fact,
    "[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte, even where
    ... neither party has raised this issue." Metabolite Labs .. Inc. v. Lab. Corp. of Am.
    Holdings, 
    370 F.3d 1354
    , 1369 (Fed. Cir.) (citing Textile Prods., Inc. v. Mead Corp., 
    134 F.3d 1481
    , 1485 (Fed. Cir.), reh'g denied and en bane suggestion declined (Fed. Cir.),
    cert. denied, 
    525 U.S. 826
    (1998)), reh'g and reh'g en bane denied (Fed. Cir. 2004), cert.
    granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 
    546 U.S. 975
    (2005), cert. dismissed as improvidently granted, 
    548 U.S. 124
    (2006); see also Avid
    Identification Sys., Inc. v. Crystal Import Corp., 
    603 F.3d 967
    , 971 (Fed. Cir.) ("This court
    must always determine for itself whether it has jurisdiction to hear the case before it, even
    when the parties do not raise or contest the issue."), reh'g and reh'g en bane denied, 
    614 F.3d 1330
    (Fed. Cir. 2010), cert. denied, 
    131 S. Ct. 909
    (2011).
    "Determination of jurisdiction starts with the complaint, which must be well-
    pleaded in that it must state the necessary elements of the plaintiff's claim, independent
    of any defense that may be interposed." Holley v. United States, 
    124 F.3d 1462
    , 1465
    (Fed. Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 
    463 U.S. 1
     (1983)), reh'g denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United
    States, 
    97 Fed. Cl. 203
    , 208 (2011); Gonzalez-Mccaulley Inv. Grp., Inc. v. United States,
    
    93 Fed. Cl. 710
    , 713 (2010). A plaintiff need only state in the complaint "a short and plain
    statement of the grounds for the court's jurisdiction," and "a short and plain statement of
    the claim showing that the pleader is entitled to relief." RCFC 8(a)(1), (2) (2016); Fed. R.
    Civ. P. 8(a)(1), (2) (2016); see also Ashcroft v. Iqbal, 
    556 U.S. 662
    , 677-78 (2009) (citing
    Bell All. Corp. v. Twombly, 
    550 U.S. 544
    , 555-57, 570 (2007)). However, "[c]onclusory
    allegations of law and unwarranted inferences of fact do not suffice to support a claim."
    Bradley v. Chiron Corp., 
    136 F.3d 1317
    , 1322 (Fed. Cir. 1998); see also Mczeal v. Sprint
    Nextel Corp., 
    501 F.3d 1354
    , 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part,
    dissenting in part) (quoting C. Wright and A. Miller, Federal Practice and Procedure §
    1286 (3d ed. 2004)). "A plaintiff's factual allegations must 'raise a right to relief above the
    speculative level' and cross 'the line from conceivable to plausible."' Three S Consulting
    v. United States, 
    104 Fed. Cl. 510
    , 523 (2012) (quoting Bell All. Corp. v. 
    Twombly, 550 U.S. at 555
    ), aff'd, 
    562 F. App'x 964
    (Fed. Cir.), reh'g denied (Fed. Cir. 2014). As stated
    in Ashcroft v. Iqbal, "[a] pleading that offers 'labels and conclusions' or 'a formulaic
    recitation of the elements of a cause of action will not 
    do.' 550 U.S. at 555
    . Nor does a
    complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'"
    Ashcroft v. 
    Iqbal, 556 U.S. at 678
    (quoting Bell All. Corp. v. 
    Twombly, 550 U.S. at 555
    ).
    8
    The Tucker Act grants jurisdiction to this court as follows:
    The United States Court of Federal Claims shall have jurisdiction to render
    judgment upon any claim against the United States founded either upon the
    Constitution, or any Act of Congress or any regulation of an executive
    department, or upon any express or implied contract with the United States,
    or for liquidated or unliquidated damages in cases not sounding in tort.
    28 U.S.C. § 1491(a}(1) (2012). As interpreted by the United States Supreme Court, the
    Tucker Act waives sovereign immunity to allow jurisdiction over claims against the United
    States (1) founded on an express or implied contract with the United States, (2) seeking
    a refund from a prior payment made to the government, or (3) based on federal
    constitutional, statutory, or regulatory law mandating compensation by the federal
    government for damages sustained. See United States v. Navajo Nation, 
    556 U.S. 287
    ,
    289-90 (2009); United States v. Mitchell, 
    463 U.S. 206
    , 216 (1983); see also Greenlee
    Cnty., Ariz. v. United States, 
    487 F.3d 871
    , 875 (Fed. Cir.), reh'g and reh'g en bane denied
    (Fed. Cir. 2007), cert. denied, 
    552 U.S. 1142
    (2008); Palmer v. United States, 
    168 F.3d 1310
    , 1314 (Fed. Cir. 1999).
    "Not every claim invoking the Constitution, a federal statute, or a regulation is
    cognizable under the Tucker Act. The claim must be one for money damages against the
    United States .... "United States v. 
    Mitchell, 463 U.S. at 216
    ; see also United States v.
    White Mountain Apache Tribe, 
    537 U.S. 465
    , 472 (2003); Smith v. United States, 
    709 F.3d 1114
    , 1116 (Fed. Cir.), cert. denied, 
    134 S. Ct. 259
    (2013); RadioShack Corp. v.
    United States, 
    566 F.3d 1358
    , 1360 (Fed. Cir. 2009); Rick's Mushroom Serv .. Inc. v.
    United 
    States, 521 F.3d at 1343
    ("[P]laintiff must ... identify a substantive source of law
    that creates the right to recovery of money damages against the United States."); Golden
    v. United States, 
    118 Fed. Cl. 764
    , 768 (2014). In Ontario Power Generation. Inc. v.
    United States, the United States Court of Appeals for the Federal Circuit identified three
    types of monetary claims for which jurisdiction is lodged in the United States Court of
    Federal Claims. The court wrote:
    The underlying monetary claims are of three types .... First, claims alleging
    the existence of a contract between the plaintiff and the government fall
    within the Tucker Act's waiver. . .. Second, the Tucker Act's waiver
    encompasses claims where "the plaintiff has paid money over to the
    Government, directly or in effect, and seeks return of all or part of that sum."
    Eastport S.S. [Corp. v. United States, 
    178 Ct. Cl. 599
    , 605-06,] 372 F.2d
    [1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims "in
    which 'the Government has the citizen's money in its pocket"' (quoting
    Clapp v. United States, 
    127 Ct. Cl. 505
    , 
    117 F. Supp. 576
    , 580 (1954)) ....
    Third, the Court of Federal Claims has jurisdiction over those claims where
    "money has not been paid but the plaintiff asserts that he is nevertheless
    entitled to a payment from the treasury." Eastport 
    S.S., 372 F.2d at 1007
    .
    Claims in this third category, where no payment has been made to the
    9
    government, either directly or in effect, require that the "particular provision
    of law relied upon grants the claimant, expressly or by implication, a right to
    be paid a certain sum." )fl; see also [United States v. JTestan, 424 U.S.
    [392,] 401-02 [1976] ("Where the United States is the defendant and the
    plaintiff is not suing for money improperly exacted or retained, the basis of
    the federal claim-whether it be the Constitution, a statute, or a regulation-
    does not create a cause of action for money damages unless, as the Court
    of Claims has stated, that basis 'in itself ... can fairly be interpreted as
    mandating compensation by the Federal Government for the damage
    sustained."' (quoting Eastport 
    S.S., 372 F.2d at 1009
    )). This category is
    commonly referred to as claims brought under a "money-mandating"
    statute.
    Ontario Power Generation. Inc. v. United States, 
    369 F.3d 1298
    , 1301 (Fed. Cir. 2004);
    see also Twp. of Saddle Brook v. United States, 
    104 Fed. Cl. 101
    , 106 (2012).
    To prove that a statute or regulation is money-mandating, a plaintiff must
    demonstrate that an independent source of substantive law relied upon "'can fairly be
    interpreted as mandating compensation by the Federal Government."' United States v.
    Navajo 
    Nation, 556 U.S. at 290
    (quoting United States v. Testan, 
    424 U.S. 392
    , 400
    (1976)); see also United States v. White Mountain Apache 
    Tribe, 537 U.S. at 472
    ; United
    States v. 
    Mitchell, 463 U.S. at 217
    ; Blueport Co., LLC v. United States, 
    533 F.3d 1374
    ,
    1383 (Fed. Cir. 2008), cert. denied, 
    555 U.S. 1153
    (2009). The source of law granting
    monetary relief must be distinct from the Tucker Act itself. See United States v. Navajo
    
    Nation, 556 U.S. at 290
    (The Tucker Act does not create "substantive rights; [it is simply
    a] jurisdictional provision[] that operate[s] to waive sovereign immunity for claims
    premised on other sources of law (e.g., statutes or contracts)."). "'If the statute is not
    money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal
    should be for lack of subject matter jurisdiction.'" Jan's Helicopter Serv., Inc. v. Fed.
    Aviation Admin., 
    525 F.3d 1299
    , 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v.
    United 
    States, 487 F.3d at 876
    ); Fisher v. United States, 
    402 F.3d 1167
    , 1173 (Fed. Cir.
    2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction under
    the Tucker Act.''); Peoples v. United States, 
    87 Fed. Cl. 553
    , 565-66 (2009).
    Although the Tucker Act waives federal sovereign immunity and grants this court
    jurisdiction to hear monetary claims against the government, this court's jurisdiction is
    expressly limited by 28 U.S.C. § 2501 (2012), which prescribes a six-year statute of
    limitations for claims arising under the Tucker Act's waiver of sovereign immunity.
    According to 28 U.S.C. § 2501:
    Every claim of 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 petition on the claim of a person under
    legal disability or beyond the seas at the time the claim accrues may be filed
    within three years after the disability ceases.
    10
    !(L "The six-year statute of limitations set forth in section 2501 is a jurisdictional
    requirement for a suit in the Court of Federal Claims." John R. Sand & Gravel Co. v.
    United States, 
    457 F.3d 1345
    , 1354 (Fed. Cir.), reh'g en bane denied (Fed. Cir. 2006),
    aff'd, 
    552 U.S. 130
    (2008); Schnell v. United States, 
    115 Fed. Cl. 102
    , 104-05 (2014).
    The United States Court of Appeals for the Federal Circuit has indicated that a claim
    accrues "'when all events have occurred to fix the Government's alleged liability, entitling
    the claimant to demand payment and sue here for his money.'" San Carlos Apache Tribe
    v. United States, 
    639 F.3d 1346
    , 1358-59 (Fed. Cir.) (quoting Samish Indian Nation v.
    United States, 
    419 F.3d 1355
    , 1369 (Fed. Cir. 2005) (quoting Martinez v. United States,
    
    333 F.3d 1295
    , 1303 (Fed. Cir. 2003), cert. denied, 
    540 U.S. 1177
    (2004))), reh'g en bane
    denied (Fed. Cir. 2011); see also FloorPro, Inc. v. United States, 
    680 F.3d 1377
    , 1381
    (Fed. Cir. 2012); Martinez v. United 
    States, 333 F.3d at 1303
    ) ("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."' (quoting Nager Elec. Co. v. United States, 
    177 Ct. Cl. 234
    , 240, 
    368 F.2d 847
    , 851 (1966), motion denied, 
    184 Ct. Cl. 390
    , 
    396 F.2d 977
    (1968)); Mildenberger v.
    United States, 
    643 F.3d 938
    , 944-45 (Fed. Cir. 2011); Hopland Band of Pomo Indians v.
    United States, 
    855 F.2d 1573
    , 1577 (Fed. Cir. 1988); see also Eden Isle Marina. Inc. v.
    United States, 
    113 Fed. Cl. 372
    , 481 (2013); Brizuela v. United States, 
    103 Fed. Cl. 635
    ,
    639, aff'd, 
    492 F. App'x 97
    (Fed. Cir. 2012), cert. denied, 
    133 S. Ct. 1645
    (2013); see also
    Levy v. United States, 
    83 Fed. Cl. 67
    , 73, 79 (2008) (dismissing a claim for military reserve
    retirement benefits because suits against the United States are subject to a six-year
    statute of limitations and the claim was filed outside the allotted timeframe); Barney v.
    United States, 
    57 Fed. Cl. 76
    , 83, 86 (2003) (dismissing former Airman's claims for
    wrongful discharge/unpaid wages and disability retirement because they were time-
    barred by the six-year statute of limitations). A Judge of the United States Court of Federal
    Claims has noted that:
    It is well-established that a claim accrues under section 2501 "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 v.
    United States, 
    333 F.3d 1295
    , 1303 (Fed. Cir. 2003) (en bane), cert. denied,
    
    540 U.S. 1177
    (2004) (quoting Nager Elec. Co. v. United States, 
    368 F.2d 847
    , 851 (Ct. Cl. 1966)); see also Samish [Indian Nation v. United States),
    419 F.3d [1355,] 1369 [(2005)]. Because, as noted, this requirement is
    jurisdictional, plaintiff bears the burden of demonstrating that its claims were
    timely. See Alder Terrace, Inc. v. United States, 
    161 F.3d 1372
    , 1377 (Fed.
    Cir. 1998); Entines v. United States, 
    39 Fed. Cl. 673
    , 678 (1997), aff'd, 
    185 F.3d 881
    (Fed. Cir.), cert. denied, 
    526 U.S. 1117
    (1999); see also John R.
    Sand & Gravel Co. v. United States, 
    457 F.3d 1345
    , 1362 (Fed. Cir. 2006)
    (Newman, J., dissenting); Reynolds v. Army & Air Force Exch. Serv., 
    846 F.2d 746
    , 748 (Fed. Cir. 1988).
    Parkwood Assocs. Ltd. P'ship v. United States, 
    97 Fed. Cl. 809
    , 813-14 (2011), aff'd, 
    465 F. App'x 952
    (Fed. Cir. 2012); see also Klamath Tribe Claims Comm. v. United States, 97
    
    11 Fed. Cl. 203
    , 209 (2011) (citing Alder Terrace, Inc. v. United States, 161F.3d1372, 1377
    (Fed. Cir. 1998)). Accrual of a claim is '"determined under an objective standard"' and
    plaintiff does not have to possess actual knowledge of all the relevant facts in order for a
    cause of action to accrue. FloorPro. Inc. v. United 
    States, 680 F.3d at 1381
    (quoting
    Fallini v. United States, 
    56 F.3d 1378
    , 1380 (Fed. Cir. 1995), cert. denied, 
    517 U.S. 1243
    (1996)).
    Defendant argues that plaintiff's causes of action for disability retirement pay,
    compensatory damages, and other monetary relief accrued upon his discharge from the
    Army on May 3, 1995, because, at that time, the PEB had already determined that
    plaintiff's medical conditions made him unfit for continued military service and had
    recommended that plaintiff be separated, with severance pay, based on a 20 percent
    disability rating. According to defendant, because plaintiff's complaint was not filed until
    approximately 20 years after plaintiff's discharge from the Army, it is time-barred. In
    opposition, plaintiff argues that his claim is not time-barred because it was filed within six
    years of the ABCMR's decision on September 25, 2014.
    "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." Real v. United States, 
    906 F.2d 1557
    , 1560 (1990) (citing Friedman v. United
    States, 
    159 Ct. Cl. 1
    (1962), cert. denied, 
    373 U.S. 932
    , (1963)). "The decision by the first
    statutorily authorized board which hears or refuses to hear the claim is the triggering
    event." Real v. United 
    States, 906 F.2d at 1560
    . As an exception to this general rule,
    however, and as is pertinent to this case, a claim for disability retirement pay accrues at
    the time a service member is discharged if, at the time of discharge, the service member
    has already requested review by an appropriate board and the request was denied, or if
    the board heard the service member's claims and denied them. See Chambers v. United
    States, 
    417 F.3d 1218
    , 1225 (2005) (citing Real v. United 
    States, 906 F.2d at 1560
    ).
    When this occurs, "[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 at 1560
    (Fed. Cir.
    1990) (citing Friedman v. United 
    States, 159 Ct. Cl. at 14-15
    , 25-29).
    In the present case, it is undisputed that, following the MEB recommendation,
    plaintiff received a hearing regarding his alleged disability before an informal PEB prior to
    his discharge on May 3, 1995, and waived a formal PEB hearing. As explained above,
    the informal PEB considered plaintiff's condition in January 1995 and recommended that
    he be separated from the Army with severance pay and a 20% disability rating. Plaintiff
    concurred with the PEB's recommendation and waived a formal hearing prior to his
    discharge from the Army. Thus, at the time of his discharge from the Army, plaintiff's claim
    for disability had been considered, and denied, by an appropriate board. According to the
    United States Court of Appeals for the Federal Circuit, when a plaintiff waives a formal
    PEB hearing, a decision by an informal PEB is sufficient to trigger the running of the
    statute of limitations on a disability retirement claim. See Gant v. United States, 
    417 F.3d 1328
    , 1329-30 (Fed. Cir. 2005) (finding that plaintiff's knowing and voluntary waiver of a
    formal PEB hearing through acceptance of an informal PEB's conclusions was sufficient
    to cause a claim to accrue); Schmidt v. United States, 
    89 Fed. Cl. 111
    , 120-21 (2009)
    12
    ("An 'informal' CPEB [Central Physical Evaluation Board] decision is sufficient to start the
    running of the statute of limitations."); Fuller v. United States, 
    14 Cl. Ct. 542
    , 544 (1988)
    ("The PEB is a proper and competent tribunal whose decision is adequate to trigger the
    running of the statute of limitations."); Abatemarco v. United States, 
    226 Ct. Cl. 708
    , 710
    (1981) ("Plaintiff's cause of action accrued in May 1972 because he had then demanded
    but been refused a Physical Evaluation Board, and was released without disability
    retirement pay."). Although plaintiff relies on the ABCMR's September 25, 2014 decision
    to argue that his claim is not time-barred, plaintiff's claim for disability retirement pay
    accrued upon the date of his discharge from the Army on May 3, 1995 because, prior to
    his discharge, plaintiff's disability claim had been considered by the informal PEB, and
    plaintiff waived a formal PEB hearing. See Chambers v. United 
    States, 417 F.3d at 1225
    (citing Real v. United 
    States, 906 F.2d at 1560
    ). Therefore, the statute of limitations for
    plaintiff's military disability retirement pay expired on May 3, 2001, six years after the date
    of his discharge, and, as a result, plaintiff's claim for disability retirement pay in the above-
    captioned case filed on December 7, 2016 is untimely. The court, therefore, concludes
    that plaintiff's complaint was filed more than fifteen years after the expiration of the statute
    of limitations, and, thus, plaintiff's claims are time-barred.
    CONCLUSION
    For the reasons stated above, this court lacks jurisdiction to hear plaintiff's claims.
    Defendant's motion to dismiss is GRANTED. Plaintiff's complaint is DISMISSED. The
    clerk's office shall enter JUDGMENT consistent with this opinion.
    IT IS SO ORDERED.
    ~/X?``V---
    AARIAN BLANK HORN
    Judge
    13
    

Document Info

Docket Number: 16-1622

Judges: Marian Blank Horn

Filed Date: 4/14/2017

Precedential Status: Precedential

Modified Date: 4/18/2017

Authorities (48)

Special Devices, Inc. v. Oea, Inc. , 269 F.3d 1340 ( 2001 )

Jerry Lynn Real v. The United States , 906 F.2d 1557 ( 1990 )

Hughes v. Rowe , 101 S. Ct. 173 ( 1980 )

Clapp v. United States , 117 F. Supp. 576 ( 1954 )

Eastport Steamship Corporation v. The United States , 372 F.2d 1002 ( 1967 )

Nager Electric Company, Inc. And Keystone Engineering ... , 396 F.2d 977 ( 1968 )

John D. Holley v. United States , 124 F.3d 1462 ( 1997 )

Greenlee County, Arizona v. United States , 487 F.3d 871 ( 2007 )

donald-r-johannsen-and-wideview-scope-mount-corporation-dba-the-pumpkin , 918 F.2d 160 ( 1990 )

Nager Electric Company, Inc. And Keystone Engineering ... , 368 F.2d 847 ( 1966 )

United States v. Cotton , 122 S. Ct. 1781 ( 2002 )

Estelle v. Gamble , 97 S. Ct. 285 ( 1976 )

Metabolite Laboratories, Inc. And Competitive Technologies, ... , 370 F.3d 1354 ( 2004 )

Haines v. Kerner , 92 S. Ct. 594 ( 1972 )

Colonel David W. Palmer, II v. United States , 168 F.3d 1310 ( 1999 )

View Engineering, Inc. v. Robotic Vision Systems, Inc., and ... , 115 F.3d 962 ( 1997 )

Rose M. Clark v. National Travelers Life Insurance Company , 518 F.2d 1167 ( 1975 )

alder-terrace-inc-alder-terrace-associates-and-david-abolin-sr , 161 F.3d 1372 ( 1998 )

Mildenberger v. United States , 643 F.3d 938 ( 2011 )

Gene A. Folden, Coastal Communications Associates, and ... , 379 F.3d 1344 ( 2004 )

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