                               NOTE: This order is nonprecedential.

                        mutub ~tate~ ~ourt of ~eaI~
                           for tbe jfeberaI ~trcutt

                                       FRANK PALACIOS,
                                        Plaintiff-Appellant,
                                                v.
                                        UNITED STATES,
                                        Defendant-Appellee.


                                            2012-5028


                         Appeal from the United States Court of Federal
                      Claims in case no. ll-CV-259, Senior Judge Robert H.
                      Hodges, Jr.


                                           ON MOTION


                        Before RADER, Chief Judge, and GAJARSA and REYNA,
                                         Circuit Judges.
                      PER CURIAM.
                                            ORDER
                          The United States moves for summary affirmance of
                      the United States Court of Federal Claims's dismissal of
                      Frank Palacios's wrongful military discharge complaint.
                      Mr. Palacios opposes. The United States replies.




1 - - - - - - ----~
PALACIOS V.   US                                         2

                            I
    Mr. Palacios received an Other Than Honorable dis-
charge from the United States Marine Corps in 1995. In
2002, Mr. Palacios appealed the discharge to the Naval
Discharge Review Board ("Review Board"). The Review
Board denied his appeal. In 2009, Mr. Palacios sought a
personal appearance hearing before the Review Board,
which was denied. At that time, the Review Board stated
that the Board for Correction of Naval Records ("Correc-
tion Board") was the proper avenue for redress, because
Mr. Palacios had argued that a medical component was a
factor in his discharge. Mr. Palacios appealed to the
Correction Board, asking that his discharge be upgraded
to Medical, Honorable, or General. The Correction Board
denied his request. In April 2011, approximately 16 years
after his discharge, Mr. Palacios filed a complaint with
the Court of Federal Claims challenging the 1995 dis-
charge.
                            II
     Before the Court of Federal Claims, the United States
filed a motion to dismiss for lack of subject matter juris-
diction because Mr. Palacios's complaint was barred by
the six-year statute of limitations. See 28 U.S.C. § 250l.
The Court of Federal Claims noted that Mr. Palacios
admitted that the statute of limitations began to run
when he was discharged in 1995. See also Martinez v.
United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) ("this
court and the Court of Claims have long held that the
plaintiffs cause of action for back pay accrues at the time
of the plaintiffs discharge"). The Court of Federal Claims
considered Mr. Palacios's argument that the Supreme
Court's decision in Henderson v. Shinseki, 131 S.Ct. 1197
(2011), should permit the trial court to apply an equitable
reading of the statute of limitations to his case.
3                                             PALACIOS V   US
     In granting the United States' motion to dismiss, the
trial court noted that the Supreme Court had previously
held in John R. Sand & Gravel Co. v. United States, 552
U.S. 130 (2008), that the specific statute of limitations at
issue here, 28 U.S.C. § 2501, is jurisdictional and cannot
be waived or equitably tolled. The Court of Federal
Claims further observed that the Supreme Court's analy-
sis in Henderson reinforced John R. Sand & Gravel. The
Court of Federal Claims stated:
      The Court explained in Henderson. that
      where the Court's interpretation over many
      years has been to treat a rule as jurisdic-
      tional, it is presumed that Congress intended
      to follow that course. The Court cited its rul-
      ing on § 2501 from John R. Sand as an ex-
      ample of such a long-standing interpretation.
      Henderson, 131 S.Ct. at 1203 (citing John R.
      Sand, 552 U.S. at 133-34); see also San-Gar-
      los Apache Tribe v. United States, 639 F.3d
      1346, 1349 (Fed. Cir. 2011) (recognizing after
      Henderson was issued that section 2501 is
      jurisdictional as applied to this court).
Palacios v. United States, 100 Fed. Cl. 656, 658 n.3 (2011).
    Mr. Palacios now appeals the Court of Federal
Claims's dismissal order. The United States has moved
for summary affirmance of that dismissal order.
                             III
    Summary disposition of a case "is appropriate, inter
alia, when the position of one party is so clearly correct as
a matter of law that no substantial question regarding the
outcome of the appeal exists." Joshua v. United States, 17
F.3d 378, 380 (Fed. Cir. 1994).
    Mr. Palacios states that he "asks this Court to over-
rule the binding precedent relied on by the [Court of
PALACIOSV.   US                                          4
Federal Claims], which construes § 2501 as jurisdictional
and not subject to equitable considerations." Regardless
of whether this court would overrule its own precedent, if
sitting en banc, we certainly cannot overrule Supreme
Court precedent.
    The Supreme Court has expressly stated that the
statute of limitations at issue here, 28 U.S.C. § 2501, is
jurisdictional and cannot be tolled. See John R. Sand &
Gravel, 552 U.S. at 130. Further, this court has not
overturned its en banc holding in Martinez, .333 F.3d at
1303, that a cause of action to challenge a military dis-
charge accrues at the time of the discharge. As a panel,
we cannot ignore this clearly controlling precedent.
    Mr. Palacios also argues that the Supreme Court's de-
cision in Henderson suggests that we can revisit the
jurisdictional nature of 28 U.S.C. § 2501. The Court's
decision in Henderson did not expressly modify the hold-
ing of John R. Sand & Gravel. In fact, the" Court ex-
plained in Henderson that "[w]hen a long line of this
Court's decisions left undisturbed by Congress has treated
a similar requirement as 'jurisdictional,' we will presume
that Congress intended to follow that course." Henderson,
131 S.Ct. at 1203 (citing John R. Sand & Gravel, 552 U.S.
130) (internal quotations and citations omitted». Had the
Court intended its holding in Henderson to reverse its
holding in John R. Sand & Gravel regarding the jurisdic-
tional nature of 28 U.s.C. § 2501, we cannot imagine that
it would have cited that case as it did for the proposition
that the court has long held that statute to be jurisdic-
tional.
     In sum, no substantial question exists as to the out-
come of the disposition of this appeal by the panel. There-
fore, we grant the government's motion for summary
affirmance.
    Accordingly,
5                                           PALACIOS V US

      IT Is ORDERED THAT:
      The motion for summary affirmance is granted.
                                   FOR THE COURT


      MAR 08 2012                  /s/ Jan Horbaly
         Date                      Jan Horbaly
                                   Clerk
cc: Michael D.J. Eisenberg, Esq.
    Daniel B. Volk, Esq.
                                                    FILED
s25                                        U.S. COURT OF APPEALS FOR
                                              THE FEDERAL CIRCUIT

                                               MAR 082012
                                                 JANHORBALY
                                                     CLBIK
