                 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                   is not citable as precedent. It is a public record.


    United States Court of Appeals for the Federal Circuit

                                        04-5103

                                SALLIE B. HOLLOWAY,

                                                       Plaintiff-Appellant,

                                            v.

                                   UNITED STATES,

                                                       Defendant-Appellee.



                            __________________________

                            DECIDED: May 9, 2005
                            __________________________



Before SCHALL, Circuit Judge, ARCHER, and PLAGER, Senior Circuit Judges.

SCHALL, Circuit Judge.


                                       DECISION

      Sallie B. Holloway appeals from the final decision of the United States Court of

Federal Claims that dismissed her complaint for lack of jurisdiction on the ground that it

was not filed within the six-year limitations period of 28 U.S.C. § 2501. Holloway v.

United States, 60 Fed. Cl. 254 (2004) (“Final Decision”). We affirm.
                                     DISCUSSION

                                            I.

        The pertinent facts are not in dispute. During the relevant period of time, Ms.

Holloway was a United States Naval Reserve Officer. She served on active duty as a

Reserve Canvasser Recruiter (“CANREC”) until she was involuntarily discharged from

active duty on July 1, 1997. At that time, she had accumulated just over fifteen years of

active-duty service. Five months prior to her discharge, Ms. Holloway requested early

retirement under the Temporary Early Retirement Authority (“TERA”) program, § 4403,

Pub. L. No. 102-484, 106 Stat. 2315, 2702 (1992), as amended by Pub. L. No. 104-106,

§ 1504(c)(3), 110 Stat. 514 (1996). Under the TERA program, Reserve officers with the

necessary time in active-duty service have the option of early retirement. On March 24,

1997, the Navy denied Ms. Holloway’s request for early retirement on the ground that as

a CANREC with less than eighteen years of active-duty service, she did not qualify for

TERA.

        Ms. Holloway applied to the Board for Correction of Naval Records (“BCNR”) for

review of the Navy’s decision. On October 26, 1999, the BCNR denied her request for

correction, finding that “the evidence submitted was insufficient to establish the

existence of probable material error or injustice.” Final Decision, 60 Fed. Cl. at 258. On

March 21, 2000, Ms. Holloway filed a complaint in the United States District Court for

the Northern District of California seeking correction of her records as well as back pay

and allowances.     The district court dismissed the complaint for lack of jurisdiction,

Holloway v. Danzig, No. C 00-0981 SBA (N. D. Cal. Oct. 19, 2000), noting that Ms.

Holloway had an adequate remedy in the Court of Federal Claims. The Ninth Circuit



04-5103                                          2
affirmed the dismissal on January 31, 2001. Holloway v. England, 50 Fed. Appx. 836

(9th Cir. 2002) (table).

       On December 3, 2002, Ms. Holloway filed a complaint in the Court of Federal

Claims seeking money damages based upon her allegedly unlawful discharge from

active duty on June 1, 1997. At the same time, she moved to suspend proceedings

based upon the fact that she had filed a request for en banc review with the Ninth

Circuit that was still pending. On December 13, 2002, the Court of Federal Claims

judge to whom the case was assigned issued an order in which he notified the parties

that under 28 U.S.C. § 1500, the court was “not permitted to consider law suits that

have been filed in other courts.” Ms. Holloway thereupon filed a motion, which the court

granted, to voluntarily dismiss her complaint without prejudice.

       On August 4, 2003, Ms. Holloway filed a second complaint in the Court of

Federal Claims. In it, she asserted again the claim presented in the complaint she had

filed on December 3, 2002. The government moved to dismiss the complaint for lack of

jurisdiction on the ground that it was untimely. The Court of Federal Claims granted the

government’s motion. Final Decision, 60 Fed. Cl. 254. The court determined that the

cause of action for Ms. Holloway’s claim accrued on July 1, 1997, the date she was

discharged from active-duty service in the Navy.         Ms. Holloway’s complaint was

therefore time-barred, the court ruled, because it was not filed in the Court of Federal

Claims until August 4, 2003, more than six years after accrual of the statute of

limitations.   See 28 U.S.C. § 2501.      The Court of Federal Claims rejected Ms.

Holloway’s argument that her complaint “merged” with the voluntarily dismissed

December 3, 2002 complaint. The court explained that under 28 U.S.C. § 1500, the



04-5103                                         3
Court of Federal Claims did not have jurisdiction over the December 3, 2002 complaint,

and, thus, the August 4, 2003 complaint could not “relate back” to the earlier complaint.

                                            II.

       We review the Court of Federal Claims’ dismissal of Ms. Holloway’s complaint for

lack of subject matter jurisdiction de novo. W. Co. of N. Am. v. United States, 323 F.3d

1024, 1029 (Fed. Cir. 2003).

       We see no error in the decision of the Court of Federal Claims. It is undisputed

that Ms. Holloway’s claim accrued on July 1, 1997 when she was discharged from

active duty. See Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en

banc) (“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.’” (citations omitted)). Moreover, the

statute of limitations was not tolled when Ms. Holloway pursued administrative remedies

before the BCNR. See id. at 1312 (“[I]t is well-settled that the statute of limitations for

Tucker Act claims is not tolled by the claimant’s exercise of his rights to seek permissive

administrative review of his claim.”).

       On appeal, Ms. Holloway argues that 28 U.S.C. § 2501 should be equitably tolled

because she actively pursued her claim for relief during the statute of limitations

period—first, by filing suit in district court and second, by filing the December 3, 2002

complaint in the Court of Federal Claims.

       The government argues, and we agree, that because Ms. Holloway raises her

equitable tolling argument for the first time on appeal, the argument has been waived.



04-5103                                           4
See Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1426 (Fed. Cir. 1997). As

noted by the Court of Federal Claims, Ms. Holloway’s counsel (different from her

counsel on appeal) rejected application of the doctrine of equitable tolling, referring to it

as “totally misplaced.” Final Decision, 60 Fed. Cl. at 260 n.12.

       In any event, there is no merit to Ms. Holloway’s equitable tolling argument. The

Supreme Court has held that the same rebuttable presumption of equitable tolling

applicable to suits against private defendants also applies to suits against the United

States. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96 (1990). While equitable

tolling is available at least in some actions against the government, in United States v.

Brockamp, 519 U.S. 347, 350 (1997), the Court rejected application of the doctrine

where the statute at issue, much like section 2501 here, contains explicit exceptions to

its basic time limits, which exceptions do not include equitable tolling.1        We have

declined to decide whether equitable tolling applies with respect to 28 U.S.C. § 2501.

Martinez, 333 F.3d at 1318. However, assuming equitable tolling were available under

section 2501, Ms. Holloway has not made a sufficient showing to invoke the doctrine in

this case. Irwin makes clear that equitable tolling against the federal government is

available only when there is a compelling justification for delay, such as “where the

claimant has actively pursued his judicial remedies by filing a defective pleading during

the statutory period, or where the complainant has been induced or tricked by his

adversary's misconduct into allowing the filing deadline to pass.” 498 U.S. at 96. Ms.




       1
               Section 2501 provides that 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.” 28 U.S.C. § 2501.
04-5103                                          5
Holloway’s arguments do not meet this standard.2

      For the foregoing reasons, the final decision of the Board is affirmed.

      Each party shall bear its own costs.




      2
             We have considered Ms. Holloway’s other arguments and have found
them to be without merit.
04-5103                                        6
