 

In the United States Court of Federal Claims

No. 16-‘16220
Fiied: April 14, 2017 FlLED
: 'k k * 'k 'k 1\‘ ~k * ‘k ‘k * * 'k : APR 1 q 2017
* US.COURTOF
NI|GUEL A. GARC|A-G|NES, * FEDEP.AL CLAilviS
P| ' t'ff, * _ _ , _ _
am ' t Ilililltary Dlsabl|lty Retlrement Pay;
v. * Nlotion to Dismiss; Subject Nlatter
* Jurisdiction; Statute of Limitations;
* EQ is-
UN|TED STATES, *

Defendant.

'k * 'k * * *k 'k * * * 1\' 'k * *k

Nligue| A. Garcia-Gines, gr_o Y, Oca|a, F|a.

Joshua E. Kur|andl Trial Attorney, Commercia| Litigation Branch, Civii Division,
United States Department of Justice, Washington, D.C., for defendant. VVith him was
Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and Chad A.
Read|er, Acting Assistant Attorney Genera|, Civi| Division, Department of Justice,
VVashington, D.C. Of counsel vvas Maj. Patrick Nchrath, Litigation Attomey, |Vii|itary
Personne| LaW Branch, United States Army Lega| Services Agency.

OPlNlON

HORNl J.
FIND|NGS OF FACT

39 Y plaintiff, |V|iguel Garcia-Gines, a former servicemember in the United States
Army (Army) filed the above-captioned complaint in this court on December 7, 2016,
seeking to change his discharge vvith severance pay to permanent disability retirement
due to injuries sustained during active military service, to increase his disability
percentage rating to equal 30 percent or more, and to recover monetary relief. P|aintiff
seeks “monetary relief1 and military medical retirement pay benefits against the United
States Army for disabilities of a permanent nature in relation to medical injuries that Were
manifested and sustained during active military service.” According to his complaintl
plaintiff suffered “combat-related injuries (Whip|ash) to the front of the head, neck, and

'?|]LLi LEUU |J|J[l|] l=l[]‘:lEl 'PUBE

back" on danuary 11, 1991, which caused him to have “short term memory ioss,
cerebrospinai fluid leak, and periods of unconsciousness during the Persian Gu|f War.”
Defendant has moved to dismiss piaintiff’s complaint pursuant to Ruie 12(b) of the Rules
of the United States Court of Federal Ciairns (RCFC) for tack ofjurisdiction.

in his complaint plaintiff asserts that he “firstjoined the miiitary on l\/larch 1, 1972,
had two breaks in service, and served over 19 years of honorabie military service in
combination with the Air i\iational Guard and inactive Reserve.” According to documents
submitted to the court by both parties, it appears that plaintiff was active in military service
from i\/iarch 1, 1972 to February 22, 1974, and iVlay 20, 1974 to May 19, 1977, and
September 29, 1983 to iV|ay 3, 1995.j Plaintiff alleges that he suffered “a head injury to
the front of the head” on January 11, 199i 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 head1 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 Niay 3, 1995, plaintiffwas discharged from
active service due to physical disability

Prior to his discharge from the Armyl plaintiff's medical condition was reviewed by
a medical evaluation board (i\/IEB) and by an informal physical evaiuation board (PEB).
On December15, 1994, the lViEB determined that plaintiff had “Degenerativejoint disease
of the lumbar spine," with an approximate date of origin in “Dec 1991.” The lViEB
determined that plaintiff was unfit for continued military service. P|aintiff signed “DA
FORM 3947,” stating that he had been informed of the approved findings and
recommendation of the l\/lEB and that he agreed with the iVlEB’s findings and
recommendation The iViEB referred plaintiff to a PEB.

in a decision issued on January 3, 1995, an informal PEB described plaintiffs
disabiiities as fo|iows:

Degenerative joint disease of iumbar spine, progressive symptomoiogy
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 lVlOS ofa Fire Support
Forward Observer.

 

1 in considering defendants motion to dismiss, the court considered the administrative
record, including ai| evidence relevant to the jurisdictional facts alleged in the complaint
See Banks v. United States, 741 F.3d 1268, 1277 (Fed, Cir. 2014) ("ifa motion to dismiss
for lack of subject matter jurisdiction . . . challenges the truth of the jurisdictional facts
alleged in the complaintl the district court may consider relevant evidence in order to
resolve the factual dispute.”).

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
servicel AR 635-40 requires separation from service with severance pay.

'i'he 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 disabiiity 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 piaintiff’s disposition be characterized as
“Separation with severance pay if othenivise quaiified."

The informal PEB also made the foliowing “RECOIV||V|ENDED Fll\iDiNG":

A. THE lVlElVlBER'S RET|RE!V|ENT lS NOT BASED ON DlSAB|i_lTY
FROl\/l lNJURY OR DlSEASE RECE|VED |l\i THE L|NE OF DUTY AS
A DlRECT RESULT OF AR|VIED CONFL|CT OR CAUSED BY AN
lNSTRUl\/lENTALiTY OF WAR AND lNCURRED lN LiNE OF DUTY
DUR|NG A PER|OD OF VVAR AS DEFENED BY L./-\VV.

B. E\/|DENCE OF RECORD REFLECTS THE iNDlViDUAL VVAS NOT A
lVlElViBER OR OBL|GATED TO BECOl\/iE A |VlEi\/lBER OF Al\l ARi\/iED
FORCE OR RESERVE THEREOF. . . ON 24 SEPTEMBER 1975.

C. THE DiSABil_iTY D|D NOT RESULT FRO|V| A CO|VlBAT REi_ATED
lNJURY AS DEF|NED lN 26 U.S.C. 104.

Plaintiff concurred with the informai PEB’s findings and recommendations On January 5,
19951 plaintiff signed a forrn indicating that he had been advised of the findings and
recommendations of the informal PEB and had received a fuli explanation of the results
of the findings and recommendations and legal rights that pertained to the informal PEB
decision Plaintiff signed a form stating “l CONCUR AND V\IA|VE A FOR|V|AL HEAR|NG
OF iVlY CASE." The informal PEB findings and recommendations were approved by the
Secretary of the Army on January 6, 1995.

As a result of the lViEB and informal PEB proceedings, plaintiff was discharged
from active duty service due to physical disability on i\/iay 3, 1995. P|aintiff's discharge is
described on his DD Form 214, which states that his discharge Was honorable and the
reason for separation is “DiSABlL|TY, SEVERANCE PAY.” The DD Form 214 includes a
description of plaintiffs record of service and explains that plaintiffs “Net Active Service
This Period” was 11 years, 7 months, and 5 days. The DD Form 214 also explains that
plaintiffs “Totai Prior inactive Service” was 2 months and 28 days.

Approximately 1'i 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 lViiiitary Records (ABC|V|R) to change his DD Form 214 from “Disabiiity

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Severance Pay to Permanent Retirement." Piaintiff 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 ABCiVIR, 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 issued1 but l am
pleading to you to uphold the name ofjustice due to a combat veteran who was dedicated
to the mission first at ali times." On April 12, 2007, the ABCi\/iR notified piaintiff, in a letter,
that his request to change his medical separation with severance pay to a medical
disability retirement had been denied on Aprii 5, 2007. in its denial decision, the ABCl\/iR
explained that "Titie 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 ABCi\/iR can “excuse failure to file within the 3-year statute
of limitations if the ABClViR determines that it would be in the interest ofjustice to do so.”
The ABC|VIR 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 ofjustice
to excuse the applicants failure to timely file this application Within the 3-year statute of
iimitations prescribed by law." The April 12, 2007 letter that informed piaintiff of the
ABCi\/lR’s denial decision expiained, “[t]his decision in your case is finai. 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 plaintiffs 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 fite did not accurately describe
plaintiffs total time in service Plaintiff asserted: “iViY TOTAl_ i\/iiLiTARY SERVICE WAS
NOT ADDED CORRECTLY AT THE Til\/iE OF DiSCHARG-E l VVAS BE|NG SEPARATEE)
iViED|CALLY AND DUE TO HEAD TRAUl\liA AND VARiOUS OTHER lNJURiES iV\iAS
UNABLE TO GATHER Al_L OF l\fi‘( i\/ilLiTARY DOCUl\/iENTATiON `l'O COMPUTE
CORRECT DATA.” On lViay 13, 2009, the ABCi\/iR notified plaintiff that his request was
granted to correct his totai time in service on his DD Form 214, and the ABCl\/iR noted
that plaintiff did not file within the three-year statute of iirnitations. Notwithstanding the
lateness of plaintiffs request the ABCi\/lR determined "it is in the interest of justice to
excuse the applicants failure to timely fi|e" in order to correct his records with regard to
“the computation of the applicants total service." The ABCi\/lR determined that at the
time he was discharged from the Armyl plaintiffs DD Form 214 incorrectly refiected only
two months and 28 days of total prior inactive service, When, in fact plaintiff plaintiffs total
prior inactive service was two years1 seven months, and 21 days total. Accordingiy, the
ABCi\/iR recommended that “ail 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 i\/iay 1995 to show 2 yearsl 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

On January 15, 2010l plaintiff filed another request to the ABC|V|R 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 ABCi\/lR considered plaintiffs request as an
untimely request for reconsideration of the ABCiVlR‘s April 5, 2007 decision denying
plaintiffs simiiar request on September 14, 2006. On June 9, 20101 the ABCMR notified
plaintiff that “[t]he staff of the ABCIV|R 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 ABC|\/|R’s original decision” on April 5, 2007. The June 9, 2010
letter to plaintiff stated that “[t]he ABCi\/lR wili not consider any further requests for
reconsideration of this matter. However, you have the option to seek relief in a court of
appropriate jurisdiction”

Shortiy after the ABCi\/iR’s letter to plaintiff on June 9, 2010, plaintiffs spouse sent
a letter on June 17, 2010 also seeking reconsideration of plaintiffs case “due [to]
extenuating circumstances that caused a lapse in time for the filing” of plaintiffs request
to correct his military records The ABCi\/iR responded to plaintiffs wife in a letter on
December 13, 2010l which explained that the ABC|V|R's decision on June 9, 2010 "was
the final administrative action taken by the Secretary of the Army. There is no further
action contemplated by the ABCMR since he [plaintifi] is not eligible for further
reconsideration by this Board.” in this ietter, the ABCi\/iR 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 ABCl\/iR seeking
to change his discharge to a retirement due to permanent disability and to increase his
disability percentage rating. in response, the ABCN|R sent plaintiff a letter on September
25, 2014 explaining that plaintiffs request was considered by the ABCMR in Apri| of 2007
and that plaintiff had previously requested reconsideration of the Aprii 2007 decision in
2010. Simiiar to the ABCNIR’s letters to plaintiff on June 9, 2010 and December13, 20’i0,
the September 25, 2014 ietter to plaintiff explained that the decision denying
reconsideration of piaintiffs request was the final administrative action and that no further
action would be contemplated by the ABC|V|R. The September 25, 2014 letter stated that
the ABCl\/iR 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 frorn the Army, piaintiff filed his complaint in
this court seeking "compensatory damages in the sum of $238,724.90 and additional
cost-of living adjustments increases,” as weil as an “[i]ncrease in medical percentages to
equal 30 percent or more and military retirement benefits in accordance with Veterans
Affairs Scheduie for Rating Disabilities and related precepts iaws, 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:
Disabiiity.” (emphasis in original). in his complaint plaintiff asserts that "iVlilitary and
Physical Eva|uation Board proceedings at time of discharge failed to abide by Army
Reguiations by not correctly adding his total time in service and by stating on his Physicai
Evaiuation Board proceedings that he was not in the military before September 241 1975,

5

and combat-related injuries Were not incurred in line of duty during a time of national
emergency after September 14, 1978." Piaintiff also alleges that his “injuries were ‘passed
over’ from the i\/iedicai Eva|uation Board and Physicai Evaiuation Board Proceedings
because medical personnel only concentrated their medical efforts and analysis on the
plaintiffs back injury." According to piaintiff, 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 25l 2014,"
when as noted above1 the ABCl\/iR stated that it would not consider any future request
from piaintiff and that piaintiff had the option of seeking relief in court

Defendant has moved to dismiss plaintiffs complaint pursuant to RCFC 12(b)(1)
for tack of`subject matter jurisdiction because plaintiffs 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 plaintiffs discharge when at the time of discharge, an
appropriate board has already heard and denied plaintiffs claim for disability P|aintiff filed
an opposition to defendants motion to dismiss that reiterates the allegations in piaintiffs
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."

DISCUSSEON

The court recognizes that plaintiff is proceeding mg §_e__, without the assistance of
counsel. When determining Whether a complaint filed by a pr_c_) §§ piaintiff is sufficient to
invoke review by a court p_Lg § plaintiffs are entitled to liberal construction of their
pleadings See Haines v. Kerner, 404 U.S. 519l 520-21 (requiring that allegations
contained in a ppg §§ complaint be held to “iess stringent standards than formal pleadings
drafted by lawyers”), re_h'g denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551
U.S. 89, 94 (2007); i-iughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estel|e v. Gamble, 429
U.S. 97, 106 (1976), r_e_hlgdenied, 429 U.S. 1066 (1977); i\/latthews v. United States, 750
F.3d 1320, 1322 (Fed. Cir. 2014); Diamond v. United States, 115 Fed. Ci. 516, 524, a_ff’_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 piaintifl] has not spelled
out in his [or her] pieading."”’ Lenqen v. United States, 100 Fed. Cl. 317, 328 (2011)
(aiterations in original) (quoting Scodin v. United States, 33 Fed. Cl. 285, 293 (1995)
(quoting Clark v. Nat’| Travelers Life lns. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see
also Bussie v. United States, 96 Fed. Cl. 89, 941 a_ffl:i_, 443 F. App’x 542 (Fed. Cir. 2011);
i\/iinehan v. United States, 75 Fed. Ci. 249, 253 (2007). “VVhiie a p[g §§ plaintiff is held to
a less stringent standard than that of a plaintiff represented by an attorney, the p_ro_ se
piaintiff, nevertheless bears the burden of establishing the Court’s jurisdiction by a
preponderance of the evidence.” Riles v. United States, 93 Fed. Ci. 163, 165 (2010)
(citing i-iughes v. Rowe, 449 U.S. at 9 and Tavlor v. United States, 303 F.3d 1357, 1359
(Fed. Cir.) (“Plaintiff bears the burden of showing jurisdiction by a preponderance of the
evidence.”), reh’q and reh'g § banc denied (Fed. Cir. 2002)); see also Sheikofskv v.

6

United States, i19 Fed. Cl. 'i33, 139 (2014) (“[VV]hiie the court may excuse ambiguities
in a pro se plaintiffs complaint the court ‘does not excuse [a complaint’sj failures.’"
(quoting Henke v. United States 60 F.3d 795, 799 (Fed. Cir. 1995)); Harris v. United
States, 1l3 Fed. Cl. 290, 292 (2013) (“Although plaintiffs pleadings are held to a less
stringent standard, such leniency ‘With respect to mere formalities does not relieve the
burden to meetjurisdictional requirements.’" (quoting l\/linehan v. United States, 75 Fed.
C|. at 253)).

in i\/ir. Garcia-Gines’ casel as noted above, defendant has moved to dismiss
plaintiffs complaint pursuant to RCFC 12(b)(1) and argues that this court does not have
subject matter jurisdiction to consider plaintiffs complaint because it is time-barred
Plaintiff, however, alleges that this court has jurisdiction to consider his claim pursuant to
“28 U.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 defendants motion to dismiss plaintiffs complaint for lack of subject
matterjurisdiction pursuant to RCFC 12(b)(1), the court presumes all undisputed factual
aliegations to be true and construes all reasonable inferences in plaintiffs favor. §§
l\/liller v. United States, 119 Fed. Cl. 7i7, 724 (2015). As the plaintiff, however, lVir. Garcia-
Gines has the burden of proving that this court has subject matterjurisdiction and that his
claim is timely See Banks v. United States, 741 F.3d at 1277 (“ln such cases, the plaintiff
has the burden of proving subject matter jurisdiction by a preponderance of the
evidence.”).

 

it is well estabiished that “‘subject-matterjurisdiction because it involves a courts
power to hear a case, can never be forfeited or waived.’" Arbauqh v. Y & i-i Corp., 546
U.S. 500, 514 (2006) (quoting United States v. Cotton 535 U.S. 625, 630 (2002)).
"[Fjederai 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.” l~ienderson ex re|.
Henderson v. Shinseki, 562 U.S. 428l 434 (2011); see also Gonzalez v. Thaler, 132 S.
Ct. 641, 648 (2012) (“When a requirement goes to subject-matterjurisdiction courts are
obligated to consider sua sponte issues that the parties have disclaimed or have not
presented.”); l-iertz Corp. v. Friend, 559 U.S. 771 94 (2010) (“Courts have an independent
obligation to determine whether subject-matter jurisdiction exists, even when no party
chai|enges it” (citing Arbauoh v. Y & l-i Corp., 546 U.S. at 514)); Speciai Devices, inc. v.
OEA lnc., 269 F.3d 1340l 1342 (Fed. Cir. 2001) ("{A] court has a duty to inquire into its
jurisdiction to hear and decide a case." (citing Johannsen v. Pav Less Druq Stores N.ii\l'g
ingl 918 F.2d i60, 161 (Fed. Cir. 1990)); View Enq’q, lnc. v. Robotic Vision Sys.. lnc,,
115 F.3d 962, 963 (Fed. Cir. l997) (“[C]ourts must always look to their jurisdiction
whether the parties raise the issue or not.”). “Objections to a tribunai’s jurisdiction can be
raised at any time, even by a party that once conceded the tribunal’s subject-matter
jurisdiction overthe controversy” Sebelius v. Auburn Req’i i\/ied. Ctr., 133 S. Ct. 817, 824
(2013); see also Arbauqh v. ‘r’ & H Corp., 546 U.S. at 506 ("The objection that a federal
court lacks subject-matterjurisdiction . . . 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 1360l 1364 n.1 (Fed. Cir. 2012)
(“An objection to a courts subject matter jurisdiction can be raised by any party or the

 

7

 

 

court at any stage of iitigation, including after trial and the entry of judgment.” (citing
Arbauqh v. Y & H Corp., 546 U.S. at 506-07)); Rick’s i\/iushroom Serv., inc. v. United
States, 52l F.3d 13381 1346 (Fed. Cir. 2008) (“[A]ny party may ohalienge, or the court
may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H
Corp., 546 U.S. at 506; Foiden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), re_h’g
and reh'q g banc denied (Fed. Cir. 2004), g_e_g;_ denied, 545 U.S. 1127 (2005); and
Fanninq, Phiiiips & iVioinarv. VVest, 160 F.3d 717, 720 (Fed. Cir. 1998))); Pii<ulin v. United
States, 97 Fed. Cix 71, 76, appeal dismissed, 425 F. App’x 902 (Fed. Cir. 2011). in fact,
“[s]ubject matterjurlsdiction is an inquiry that this court must raise sua sponfe, even where
. . . neither party has raised this issue." i\/ietaboiite Labs., inc. v. l_ab. Corp. of Am.
Hoidings, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., lnc. v. iViead Corp., 134
F.3d 1481, 1485 (Fed. Cir.), reh’q denied and § banc suggestion declined (Fed. Cir.),
_gem_r_t_; denied, 525 U.S. 826 (1998)), reh’q and reh’q _eg banc denied (Fed. Cir. 2004), _c_e_rt;
granted jg part sub. nom i..ab. Corp. of Am. Ho|dinqs v. Metaboiite Labs., inc.l 546 U.S.
975 (2005), cert. dismissed _a_s_ improvidently qranted, 548 U.S. 124 (2006); W_aii)_ w
identification Svs., inc. v. Crvstal 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’q and reh’q g banc denied, 614
F.3d 1330 (Fed. Cir. 2010), peg denied, 131 S. Ct. 909 (2011).

“Determination of jurisdiction starts with the complaint, which must be weil-
pieaded in that it must state the necessary elements of the plaintiffs ciaim, independent
of any defense that may be interposed." |-ioi|ev v. United States, 124 F.3d 1462, 1465
(Fed. Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1
(1983)), Qh_’_g denied (Fed. Cir. 1997); see also K|amath Tribe C|aims Comm. v. United
States, 97 Fed. C|. 203, 208 (2011); Gonzalez-i\/icCauiiey inv. Grp., lnc. v. United States.
93 Fed. Cl. 710, 713 (2010). A piaintiff 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 oiaim showing that the pleader is entitled to reilef.” RCFC 8(a)(1), (2) (2016); Fed. R.
Civ. P. 8(a)(1), (2) (2016); see also Ashcroft v. lqbail 556 U.S. 662, 677-78 (2009) (citing
Beli At|. Corp. v. Twomblv, 550 U.S. 544, 555-57, 570 (2007)). However, "[c]onclusory
aliegations of law and unwarranted inferences of fact do not suffice to support a ciaim.”
Bradiev v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also i\/icZeai v. Sprint
Nextei Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyi<, J., concurring in part,
dissenting in part) (quoting C. Wright and A. i\/ii|ier, Federai Practice and Procedure §
1286 (3d ed. 2004)). “A plaintiffs factual allegations must ‘raise a right to relief above the
speculative ievel’ and cross ‘the iine from conceivable to piausibie."’ Three S Consulting
v. United States, 104 Fed. Ci. 510, 523 (2012) (quoting Beli Ati. Corp. v. Twomblyl 550
U.S. at 555), ajf§, 562 F. App’x 964 (Fed. Cir.), [e_h'g denied (Fed. Cir. 2014). As stated
in Ashcroft v. igbai, "[a] pleading that offers ‘labeis and conciusions’ or ‘a formuiaic
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. |gbai, 556 U.S. at 678 (quoting Beli Ati. Corp. v. Twornbiv, 550 U.S. at 555).

 

 

 

The Tucker Act grants jurisdiction to this court as foilows:

The United States Court of Federai C|aims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon the
Constitutionl or any Act of Congress or any regulation of an executive
department1 or upon any express or implied contract with the United States,
or for liquidated or uniiquidated 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 ailowjurisdiction 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
constitutionai, statutoryl or regulatory law mandating compensation by the federal
government for damages sustained See United States v. Navaio Nation, 556 U.S. 287,
289-90 (2009); United States v. |\/iitcheiil 463 U.S. 206, 216 (1983); B grigg Greeniee
Cntv.. Ariz. v. United States, 487 F.3d 8711 875 (Fed. Cir.), reh’q and reh’q en banc denied

 

(Fed. Cir. 2007), cert denied, 552 U.S. 1142 (2008); Pa|mer v. United Statesl 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. |Viitcheil, 463 U.S. at 216; see also United States v.
White i\/icuntain Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United States, 709
F.3d 1114, 1116 (Fed. Cir.), ge_rt. denied, 134 S. Ct. 259 (2013); RadioShack Corg. v.
United States1 566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s lV|ushroom Serv.. lnc. v.
United States, 521 F.3d at 1343 (“[P]iaintiff must . . . identify a substantive source of law
that creates the right to recovery of money damages against the United States."); Goiden
v. United States, 118 Fed. C|. 764, 768 (2014). in Ontario Power Generation, inc. v.
United States, the United States Court of Appeais for the Federai Circuit identified three
types of monetary claims for which jurisdiction is lodged in the United States Court of
Federai Ciaims. 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. iCorp. v. United States, 178 Ct. Ci. 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
Ciagg v. United States, 127 Ct. Ci. 505, 117 F. Supp. 576, 580 (1954)) . . . .
Third, the Court of Federai C|aims 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." Eastgort S.S., 372 F.2d at 1007.
C|aims in this third category, where no payment has been made to the

government, either directly or in effect, require that the “particular provision
of law reiied upon grants the claimant, expressly or by implication, a right to
be paid a certain sum.” l_d_.; see also iUnited States v. i`i`estan, 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 unlessl as the Court
of Claims has stated, that basis ‘in itseif . . . can fairly be interpreted as
mandating compensation by the Federai 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. Ci. 101, 106 (2012).

To prove that a statute or reguiation 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 Federai 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 l\/lountain Apache Tribe, 537 U.S. at 472; United
States v. i\flitchell, 463 U.S. at 217; Biueport Co., LLC v. United States, 533 F.3d 1374,
1383 (Fed. Cir. 2008), gem¢ denied, 555 U.S. 1153 (2009). The source of law granting
monetary relief must be distinct from the Tucker Act itselfl See United States v. Navaio
Nation, 556 U.S. at 290 (The Tucker Act does not create “substantive rights; [it is simply
aj jurisdictional provision[] that operate[s] to waive sovereign immunity for claims
premised on other sources of law (e.g., statutes or contracts).”). “‘lf the statute is not
money-mandatingl the Court of Federai Ciaims lacks jurisdictionl and the dismissal
should be for lack of subject matter jurisdiction.’" Jan’s Heiicopter Serv., inc. v. Fed.
Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cntv., 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. Ci. 5531 565-66 (2009).

Aithough 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 Federai C|aims 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

 

 

id_. “The six-year statute of limitations set forth in section 2501 is a jurisdictional
requirement for a suit in the Court of Federai Ciaims.” John R. Sand & Gravel Co. v.
United States, 457 F.3d 1345, 1354 (Fed. Cir.), Mg _eg b_a_n_c denied (Fed. Cir. 2006),
aid 552 U.S. 130 (2008); Schneil v. United States, 115 Fed. Ci. 102, 104-05 (2014).
The United States Court of Appeals for the Federai 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 l\/|artinez v. United States,
333 F.3d1295, 1303 (Fed. Cir. 2003), QrL denied, 540 U.S. 1177 (2004))), Mgegga_ng
denied (Fed. Cir. 2011); see also F|oorPro, lnc. v. United States, 680 F.3d 1377, 1381
(Fed. Cir. 2012); i\/lartinez v. United Statesl 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 ‘ali events have occurred to fix
the Government's alleged liability, entitling the claimant to demand payment and sue here
for his money.”’ (quoting l\iaqer Elec. Co. v. United States, 177 Ct. Ci. 234, 240, 368 F.2d
847, 851 (1966), motion denied, 184 Ct. Ci. 390, 396 F.2d 977 (1963)); l\/lildenberger 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 i\/larina, inc. v.
United States, 113 Fed. Ci. 372, 481 (2013); Brizuela v. United States, 103 Fed. Ci. 635,
639,a_ff_c_l, 492 F. App’x 97 (Fed. Cir. 2012), M denied, 133 S. Ct. 1645 (2013); s_e_ea_l_s_o
Levy v. United States, 83 Fed. Ci. 67, 73, 79 (2008) (dismlssing 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. Ci. 761 83, 86 (2003) (dismissing former Airmah’s claims for
wrongful discharge/unpaid wages and disability retirement because they were time-
barred by the six-year statute of |imitations). A Judge of the United States Court of Federai
C|aims has noted that:

 

lt is weil-established that a claim accrues under section 2501 “when ‘all
events have occurred to fix the Government's alleged liability1 entitling the
claimant to demand payment and sue here for his money.’" l\/iartinez v.
United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc), g§£t_.denied,
540 U.S. 1177 (2004) (quoting Naqer Elec. Co. v. United States, 368 F.2d
847, 851 (Ct. Ci. 1966)); see also Samish [indian Nation v. United Statesl,
419 F.3d [1355,] 1369 [(2005)]. Because, as noted, this requirement is
jurisdictionai, plaintiff bears the burden of demonstrating that its claims were
timely. See AlderTerrace, lno. v. United States, 161 F.3d 1372, 1377 (Fed.
Cir. 1998); Entines v. United States, 39 Fed. Ci. 673, 678 (1997), _a_ff_g, 185
F.3d 881 (Fed. Cir.), _c_:_c-;Lr_‘mt,., denied, 526 U.S. 1117 (1999); §_e_e_ ai_s_o_ John R.
Sand & Gravei Co. v. United States, 457 F,3d 13451 1362 (Fed. Cir. 2006)
(Newman, J., dissenting); Revnolds v. Army & Air Force Exch. Serv., 846
F.2d 746l 748 (Fed. Cir. 1988).

Parkwood Assocs. Ltd. P‘ship v. United States, 97 Fed. Ci. 809, 813-14 (2011), a@, 465
F. App'x 952 (Fed. Cir. 2012); see also Kiamath Tribe C|aims Comm. v. United States, 97

11

Fed. Ci. 203, 209 (2011) (citing A|derTerrace, inc. v. United States, 161 F.3d 1372, 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. FloorF’ro, lnc. v. United States, 680 F.3d at 1381 (quoting
Failini v. United States, 56 F.3d 13781 1380 (Fed. Cir. 1995), c_e_rt.denied, 517 U.S. 1243
(1996)).

Defendant argues that plaintiffs causes of action for disability retirement pay,
compensatory damages, and other monetary relief accrued upon his discharge from the
Army on iVlay 3, 1995, because, at that time, the PEB had already determined that
plaintiffs 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 plaintiffs complaint was not filed until
approximately 20 years after plaintiffs 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 ofthe ABC|V|R’s decision on September 25, 2014.

“The generally accepted rule is that ciaims of entitlement to disability retirement
pay do not accrue until the appropriate board either finally denies such a claim or refuses
to hear it.” Reai v. United States, 906 F.2d 1557l 1560 (1990) (citing Friedman v. United
Statesl 159 Ct. Ci. 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 rulel
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 discharge1 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, “[aj subsequent petition to the corrections board does not toll the
running of the limitations period . . . , nor does a new ciaim 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. Ci. at 14-15, 25-29).

in the present case, it is undisputed thatl following the iViEB recommendation,
plaintiff received a hearing regarding his alleged disability before an informal PEB prior to
his discharge on Nlay 3, 1995, and waived a formal PEB hearing As explained above,
the informal PEB considered plaintiffs condition in January 1995 and recommended that
he be separated from the Army with severance pay and a 20% disability ratlng. P|aintlff
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 Army1 plaintiffs claim
for disability had been considered, and denied, by an appropriate board According to the
United States Court of Appeals for the Federai 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 plaintiffs 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); Schrnidt v. United States, 89 Fed. Ci. 11’l, 120-21 (2009)

12

 

(“An ‘informal’ CPEB [Central Physicai Evaluation Board] decision is sufficient to start the
running of the statute of limitations."); Fuller v. United States1 14 Ci. Ct. 542, 544 (1988)
(“`l'he 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. Ci. 708l 710
(1981) (“P|aintiff's cause of action accrued in lV|ay 1972 because he had then demanded
but been refused a Physical Evaluation Board, and was released without disability
retirement pay.”). A|though plaintiff relies on the ABCMR’s September 25, 2014 decision
to argue that his claim is not time-barred plaintiffs claim for disabiiity retirement pay
accrued upon the date of his discharge from the Army on lVlay 3, 1995 because, prior to
his discharge, plaintiffs disability ciaim had been considered by the informal F’EB, 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
plaintiffs military disability retirement pay expired on l\llay 3, 2001, six years after the date
of his discharge, and, as a result plaintiffs claim for disability retirement pay in the above-
captioned case filed on December 7, 2016 is untime|y. The court therefore, concludes
that plaintiffs complaint was filed more than fifteen years after the expiration of the statute
of iimitations, and, thus1 plaintiffs claims are time-barred.

CONCLUSEON

For the reasons stated above, this court lacks jurisdiction to hear plaintiffs claims.
Defendant’s motion to dismiss is GRANTED. P|aintiff’s complaint is DISM|SSED. The
clerk’s office shall enter JUDGlViENT consistent with this opinion

%/§%M ala

/MARIAN BLANK HORN
Judge

lT iS SO ORDERED.

 

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