Lowe v. United States

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JEROLD LOWE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2014-5039
______________________
Appeal from the United States Court of Federal
Claims in No. 13-CV-00357, Senior Judge Eric G. Brug-
gink.
______________________
Decided: June 9, 2014
______________________
JEROLD LOWE, of Little Rock, Arkansas, pro se.
JOSEPH E. ASHMAN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for defendant-appellee.
With him on the brief were STUART F. DELERY, Assistant
Attorney General, BRYANT G. SNEE, Acting Director, and
MARTIN F. HOCKEY, Assistant Director.
______________________
2 LOWE v. US
Before O’MALLEY, TARANTO, and HUGHES, Circuit Judges.
PER CURIAM.
At the Court of Federal Claims, Mr. Lowe claimed
money damages and back pay stemming from his military
service in the United States Navy between 1966 and
1970. Claims for money filed in the Court of Federal
Claims pursuant to the Tucker Act must be filed within
six years of their accrual. Because Mr. Lowe did not file
his complaint until May 24, 2013, well after the six-year
statute of limitations had expired, the Court of Federal
Claims properly dismissed the case. We affirm.
I.
Mr. Lowe served on active duty in the United States
Navy between 1966 and 1970. While on active duty, he
volunteered for a tour in Vietnam and served there from
May 1968 to May 1969. As part of his agreement to
volunteer for duty in Vietnam, he was guaranteed ad-
vancement to pay grade E-3. But at the time he was
separated from active service in 1970, he was listed at
grade E-2. His out-processing form at that time listed his
separation code as RE-3R, meaning that he was only
eligible for a probationary two-year reenlistment.
Following separation from active duty in 1970, Mr.
Lowe served two years in the Navy Reserve. He was
honorably discharged on November 24, 1972. He later
reenlisted in the Navy Reserve, and served from March
1981 to March 1983.
In 1983, Mr. Lowe asked the Board for Correction of
Naval Records to correct his records. The Board corrected
his separation records to show that he had advanced in
pay grade to E-3 as of June 5, 1968, and awarded him
back pay. Mr. Lowe received back pay for his time in the
reserves from 1981 to 1983, but not for his earlier service.
The Board also did not correct his 1970 separation code.
LOWE v. US 3
In 1986, Mr. Lowe asked the Board to correct his 1970
separation code. The Board granted his request, correct-
ing his separation code and removing a mark indicating
that he was not recommended for reenlistment in 1970.
In May 1989, Mr. Lowe filed suit against the Navy in
the United States District Court for the Western District
of Missouri, alleging violations of the Privacy Act of 1974
and seeking correction of his records and money damages.
In September 1989, the Navy paid Mr. Lowe back pay for
his period of active service, from 1968 to 1970, when he
should have been paid at the E-3 level. But Mr. Lowe did
not accept this payment. Instead, he sent the check to the
Department of Veterans Affairs along with a claim form,
citing his pending litigation in the Western District of
Missouri.
The district court granted summary judgment against
Mr. Lowe on December 7, 1990, because his records had
already been corrected and he had not responded to the
Navy’s motion for summary judgment. Lowe v. Dep’t of
the Navy, No. 89-0496 (W.D. Mo. Dec. 7, 1990). Mr. Lowe
appealed, but the United States Court of Appeals for the
Eighth Circuit dismissed his appeal, stating that his
records had been corrected, he had already been awarded
back pay, and his other claims were time-barred. Lowe v.
Dep’t of the Navy, No. 91–2069WM (8th Cir. May 29,
1991).
Mr. Lowe filed his complaint in the Court of Federal
Claims on May 24, 2013. He asks for back pay and money
damages stemming from his incorrect pay rating while in
active service, his allegedly premature release from active
service in 1970, and his erroneous records. He alleges
that the Court of Federal Claims has jurisdiction over his
claim under the Tucker Act, 28 U.S.C. § 1491, and the
Privacy Act of 1974, 5 U.S.C. § 552.
The Court of Federal Claims dismissed Mr. Lowe’s
complaint on November 14, 2013. It found Mr. Lowe’s
4 LOWE v. US
claims barred by the six-year statute of limitations for
claims brought under the Tucker Act. See 28
U.S.C. § 2501 (2012). Mr. Lowe appeals. We have juris-
diction under 28 U.S.C. § 1295(a)(3).
II.
We review the Court of Federal Claims’ decision to
dismiss a complaint without deference. Kam-Almaz v.
United States, 682 F.3d 1364, 1368 (Fed. Cir. 2012). We
also review without deference the court’s interpretation of
statutes. DIRECTV Grp., Inc. v. United States, 670 F.3d
1370, 1375 (Fed. Cir. 2012).
The Court of Federal Claims may only hear a claim
arising under the Tucker Act if the claim first accrued
within six years of the filing of the complaint. 28 U.S.C.
§ 2501; Martinez v. United States, 333 F.3d 1295, 1304
(Fed. Cir. 2003) (en banc). This statute of limitations is
jurisdictional in nature and is strictly construed. John R.
Sand & Gravel Co. v. United States, 552 U.S. 130, 133–34
(2008).
A cause of action accrues for purposes of this statute
of limitations “when all the events have occurred which
fix the liability of the Government and entitle the claim-
ant to institute an action.” FloorPro, Inc. v. United States,
680 F.3d 1377, 1381 (Fed. Cir. 2012) (citation and internal
quotation marks omitted). “The question of whether the
pertinent events have occurred is determined under an
objective standard; a plaintiff does not have to possess
actual knowledge of all the relevant facts in order for the
cause of action to accrue.” Fallini v. United States, 56
F.3d 1378, 1380 (Fed. Cir. 1995).
For the Court of Federal Claims to have jurisdiction,
Mr. Lowe’s claims must have accrued on or after May 24,
2007—six years prior to the date he filed his complaint.
Martinez, 333 F.3d at 1304. Mr. Lowe, however, does not
argue that his claims accrued on or after May 24, 2007.
LOWE v. US 5
Indeed, he identifies no potentially relevant events after
1991 and provides no explanation for his failure to bring
his complaint in the Court of Federal Claims until May
24, 2013.
Because Mr. Lowe’s claims accrued more than six
years prior to the date he filed his complaint, the Court of
Federal Claims correctly dismissed his complaint for lack
of jurisdiction.
AFFIRMED
No costs.