                       Note: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      2006-5079



                              HAROLD W. VAN ALLEN,

                                                      Plaintiff-Appellant,

                                           v.


                                  UNITED STATES,

                                                      Defendant-Appellee.


      Harold W. Van Allen, of Hurley, New York, pro se.

       Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for defendant-appellee. With
her on the brief were Peter D. Keisler, Assistant Attorney General, and Mark A. Melnick,
Assistant Director. Of counsel was Lieutenant Marc Rosen, Office of the Judge
Advocate General, United States Department of the Navy, of Washington, DC.

Appealed from: United States Court of Federal Claims

Senior Judge James F. Merow
                      NOTE: This disposition is nonprecedential.


    United States Court of Appeals for the Federal Circuit


                                       2006-5079

                               HAROLD W. VAN ALLEN,

                                                       Plaintiff-Appellant,


                                            v.


                                   UNITED STATES,

                                                       Defendant-Appellee.




                           DECIDED: June 6, 2007



Before SCHALL, BRYSON, and LINN, Circuit Judges.

PER CURIAM.


                                       DECISION

      Harold W. Van Allen appeals the final decision of the United States Court of

Federal Claims dismissing his complaint seeking military disability retirement benefits

retroactive to his 1978 discharge from the Navy. Van Allen v. United States, 70 Fed. Cl.

57 (2006). The Court of Federal Claims dismissed Van Allen’s claim as barred by the

statute of limitations, 28 U.S.C. § 2501, finding that the circumstances of the case did

not warrant equitable tolling. Van Allen, 70 Fed. Cl. at 63-64. We affirm.
                                      DISCUSSION

                                             I.

       Van Allen served on active duty in the United States Navy from June 10, 1973,

until June 28, 1978. Van Allen, 70 Fed. Cl. at 58. In January of 1978 the commanding

officer of the ship to which Van Allen was assigned recommended that he be detached

from service for unsatisfactory performance. Id.

       On June 6, 1978, Van Allen was examined by a Navy physician and found

qualified for separation. Id. at 59. Two weeks later, he was honorably discharged from

active duty and transferred to the Naval Reserve. Id. Subsequently, on November 10,

1979, Van Allen was automatically honorably discharged pursuant to 10 U.S.C. § 6389

“for having twice failed of selection for promotion to the next higher grade.” Id.

       On February 25, 1985, Van Allen petitioned the Board for Correction of Naval

Records (“BCNR”) to correct his record to reflect “that my release from active duty was

inreality [sic] due to medical conditions. (undiagnosed systemic lupus E. symptoms).” 1

Id. At the same time, he requested retroactive disability retirement benefits. Id. On

March 21, 1986, the BCNR denied Van Allen’s petition. Id.

       On January 13, 1989, the BCNR denied Van Allen’s 1988 request for

reconsideration. However, on July 24, 1991, the BCNR granted a second request for

reconsideration. Id. at 60. In the reconsideration proceedings, the BCNR requested

comments and recommendations from the Specialty Advisor for Neurology, Captain

Morales, as well as Van Allen’s service record, medical record, and VA records. Id.



       1
             In 1983, Van Allen requested disability compensation from the Veterans
Administration (“VA”), and in 1985, he applied for Social Security disability insurance
benefits.


2006-5079                                    2
Captain Morales’s report stated that a suprasellar arachnoid cyst in Van Allen’s head

most likely predated his naval service and that his poor naval performance “might have

been secondary to a suprasellar arachnoid cyst.” Id. The report further stated that Van

Allen’s problems would “have had their onset while on active duty, been progressive,

and would be expected to resolve following treatment of his cyst.” Id.

      On October 20, 1992, Van Allen underwent a “right frontal craniotomy

fenestration of arachnoid cyst,” and on March 2, 1993, he had a shunt installed in his

head. Id. at 60-61. Records of these procedures were provided to the BCNR. Id. at 61.

In addition, Captain Morales provided a supplemental memorandum, in which she

concluded that Van Allen’s “claim of service exacerbation should be denied, as there is

no evidence the [his] hydrocephalus was aggravated by his active duty service.” Id.

      On June 1, 1995, the BCNR denied Van Allen’s application for reconsideration.

Id. The BCNR wrote Van Allen on June 9, 1995, informing him that “[i]n the absence of

evidence which demonstrates that you were unfit for duty at the time of your release

from active duty, the Board was unable to recommend any corrective action in your

case.” Id.

      Van Allen continued to submit communications to the BCNR, which were

construed as motions for reconsideration and were denied as such. Id. On December

7, 2000, Van Allen submitted another communication to the BCNR. The communication

included a copy of a Social Security Administrative Law Judge’s (“ALJ’s”) decision. In

the decision, the ALJ ruled that Van Allen was entitled to disability compensation for the

period June 30, 1978, though December 31, 1986. Id. at 61-62. The BCNR treated this

as another motion for reconsideration. Id. at 62. The BCNR denied reconsideration by




2006-5079                                   3
letter dated January 25, 2001, stating that the ALJ had “relied upon evidence previously

rejected by this office.” Id. The BCNR also stated to Van Allen: “Over the past several

years, you have made hundreds of separate submissions to the Board, none of which

contained any new material evidence. Future correspondence from you which is not

accompanied by new material evidence will be filed without action or reply.” Id. Van

Allen submitted another request for reconsideration on July 2, 2003, which the BCNR

denied.

                                              II.

       On January 25, 2005, Van Allen filed a complaint in the Court of Federal Claims,

seeking a determination correcting his discharge to disability retirement with resulting

compensation.      Id.; see 10 U.S.C. § 1201 (providing for disability retirement

compensation). In response, the government moved to dismiss the complaint as time

barred pursuant to 28 U.S.C. § 2501, which provides that “[e]very 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.”

       In considering the government’s motion, the Court of Federal Claims found that

Van Allen did not possess “the level of knowledge required to cause a claim for

disability retirement pay to accrue” at the time of separation. Van Allen, 70 Fed. Cl. at

63. Thus, the court ruled, Van Allen’s cause of action did not accrue on June 20, 1978,

when Van Allen was discharged from active duty, but rather on March 21, 1986, when

the BCNR rendered its first decision in his case. Id. at 62-63. The court considered

whether the BCNR’s July 24, 1991 decision to reconsider the case “served to deprive

the [BCNR’s] prior decision of finality such that the statute of limitations would no longer




2006-5079                                     4
commence to run as of March 21, 1986.” Id. The court explained that usually the time

for reconsideration is short and that the time between the March 21, 1986 BCNR

decision and Van Allen’s 1988 reconsideration application, which resulted in the June

24, 1991 decision to reconsider, “clearly exceeds the short or reasonable period which

serves to deprive an administrative decision of finality for statute of limitations

purposes.” Id. (citing Cooley v. United States, 324 F.3d 1297, 1305 (Fed. Cir. 2003);

Gratehouse v. United States, 512 F.2d 1104, 1109 (Ct. Cl. 1975)). Therefore, the court

concluded that the statute of limitations began to run on March 21, 1986 and expired on

March 21, 1992, which was well before the January 25, 2005 filing date of Van Allen’s

complaint. Id. at 64.

       The Court of Federal Claims also considered Van Allen’s request to toll the

running of the statue of limitations, either because he was cognitively impaired under

the “legal disability” provision of 28 U.S.C. § 2501 or because the doctrine equitable

tolling applied. Id. The court noted that medical records stated that, at the time of Van

Allen’s discharge from surgery in 1993, he was “well able to manage his Veterans

Administration funds” and that he had been “represented by counsel in submissions

subsequent to March 21, 1986 and demonstrated diligence and competence in

numerous submissions to the BCNR.”         Id.   Addressing Van Allen’s reliance on the

Social Security disability benefits decision, the court distinguished the standard for work

related disability, which requires the inability to “engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment,” id.

(quoting 42 U.S.C. § 416(i)(1)(A)), from the standard for tolling a statute of limitations,

which requires the individual to be “incapable of caring for his property, of transacting




2006-5079                                   5
business, of understanding the nature and effect of his acts, and of comprehending his

legal rights and liabilities,” id. (quoting Goewey v. United States, 612 F.2d 539, 544 (Ct.

Cl. 1979)). The court concluded that Van Allen did not qualify for equitable tolling and

ordered his complaint dismissed as time barred. Id.

                                            III.

       On appeal, Van Allen argues that the Court of Federal Claims erred in failing to

equitably toll the statue of limitations due to his asserted cognitive impairment and

impaired ability to interact with his attorney during the period 1986 until 1992. The

government responds that the court made extensive fact findings and properly

concluded that Van Allen did not qualify for equitable tolling.        We agree with the

government. 2

       To establish entitlement to equitable tolling to excuse his late filing, Van Allen

had to show “a condition of mental derangement which renders the sufferer incapable of

caring for his property, of transacting business, of understanding the nature and effect

of his acts, and of comprehending his legal rights and liabilities.” Goewey, 612 F.2d at

544. Although this court has recognized that an impaired attorney–client relationship

can result in equitable tolling, Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004)

(citing Lopez v. Citibank, N.A., 808 F.2d 905, 907 (1st Cir. 1987)), “a veteran must show

that the failure to file was the direct result of a mental illness that rendered him



       2
              Although Van Allen does not contest the Court of Federal Claims’
determination that his claim accrued on March 21, 1986, we note that we agree with the
court’s analysis and conclusion. See Chambers, 417 F.3d at 1226; Real, 906 F.2d at
1561-63; see also Dayley v. United States, 169 Ct. Cl. 305, 309 (1965) (“[O]nce there is
a final Board decision, a subsequent administrative hearing or determination does not
deprive the earlier decision of finality, toll the running of limitations, or commence a new
limitations period.”).


2006-5079                                    6
incapable of rational thought or deliberate decision making or incapable of handling [his]

own affairs or unable to function [in] society,” id. (citations and internal quotations

omitted) (alternations in original). The Court of Federal Claims found that Van Allen

“was represented by counsel in submissions subsequent to March 21, 1986 and

demonstrated diligence and competence in numerous submissions to the BCNR.” Van

Allen, 70 Fed. Cl. at 64. Van Allen, who does not challenge the trial court’s findings of

fact, has not made a showing that his disability reached a level to warrant equitable

tolling. 3 Moreover, even if the statute of limitations was tolled for the period Van Allen

alleges incapacity—1986 to 1992—his complaint still would not have been timely

because it was filed on January 25, 2005, which is more than six years after 1992.

      For the forgoing reasons, the final decision of the Court of Federal Claims is

affirmed.

      Each party shall bear its own costs.




      3
             We have considered Van Allen’s other arguments and have found them to
be without merit.


2006-5079                                    7
