         In the United States Court of Federal Claims
                                           No. 14-126C

     This Opinion Will Not Be Published in the U.S. Court of Federal Claims Reporter Because It
                           Does Not Add Significantly to the Body of Law.

                                     (Filed: February 2, 2015)
                                            __________

 RICHARD FOURNIER,                               *
                                                 *
                                                 *
                       Plaintiff,
                                                 *
             v.                                  *
                                                 *
 THE UNITED STATES,                              *
                        Defendant.               *
                                                 *

                                            __________

                                     OPINION AND ORDER
                                          __________

ALLEGRA, Judge:

        Defendant has moved to dismiss plaintiff’s complaint under RCFC 12(b)(1), asserting
that this suit is barred by the application of the statute of limitations found in 28 U.S.C. § 2501.
Argument on this motion is unnecessary. For the reasons that follow, the court GRANTS
defendant’s motion.

I.       BACKGROUND 1

        On April 15, 1960, plaintiff, Richard Fournier, enlisted in the United States Navy (the
Navy). On June 9, 1965, plaintiff underwent a psychiatric exam at the United States Naval
Hospital, Jacksonville, Florida. The Consultation Report following the exam included two
impressions: schizoid personality and paranoid trend. Plaintiff was also provisionally diagnosed
with “immature personality,” and was recommended for an administrative discharge. On June


         1
         These facts are primarily drawn from plaintiff’s complaint and, for the purpose of this
motion, are assumed to be correct. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 589 (2007).
23, 1965, the Navy recommended that plaintiff be honorably discharged by reason of
unsuitability due to “inadequate personality disorder.”

        On July 16, 1965, plaintiff was discharged from the Navy. As part of his discharge,
plaintiff received a DD 214 discharge certificate. Block 11a of the DD 214 discharge certificate
stated that the “reason for discharge was not to be shown.” However, Block 11a also included
“Code 464,” a separation code reflecting a schizoid personality.

       In 1988, plaintiff petitioned the United States Navy Board for Correction of Naval
Records (BCNR) requesting that his administrative discharge be reclassified as a medical
discharge due to a head injury plaintiff suffered in 1961. Plaintiff additionally asserted that he
should have been afforded a medical board prior to discharge to determine his fitness for duty.
On February 24, 1989, the BCNR denied plaintiff’s petition; on October 6, 2009, the BCNR
denied plaintiff’s second request.

        On February 12, 2014, plaintiff filed a complaint in this court. On March 24, 2014,
defendant filed a motion to dismiss the complaint pursuant to RCFC 12(b)(1). The motion is
fully briefed.

II.    DISCUSSION

         Deciding a motion to dismiss “starts with the complaint, which must be well-pleaded in
that it must state the necessary elements of the plaintiff’s claim, independent of any defense that
may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997); see also Bell
Atl. Corp., 550 U.S. at 554-55. In particular, the plaintiff must establish that the court has
subject matter jurisdiction over its claims. Trusted Integration, Inc. v. United States, 659 F.3d
1159, 1163 (Fed. Cir. 2011); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.
Cir. 1988).

         The statute of limitations for claims filed in this court is contained in 28 U.S.C. § 2501,
which provides: “Every 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.” This requirement is jurisdictional, meaning that compliance with it is a condition
of the government’s waiver of sovereign immunity. John R. Sand & Gravel Co. v. United States,
552 U.S. 130, 133-34 (2008); Martinez v. United States, 333 F.3d 1295, 1316 (Fed. Cir. 2003),
cert. denied, 540 U.S. 1177 (2004); Petro-Hunt, L.L.C. v. United States, 90 Fed. Cl. 51, 58
(2009). Under this statute, a claim accrues when ‘“all events have occurred to fix the
Government’s alleged liability,’” and the plaintiff knew or should have known of the existence
of his claim. Martinez, 333 F.3d at 1303 (quoting Nager Elec. Co. v. United States, 368 F.2d
847, 851 (Ct. Cl. 1966)); see also San Carlos Apache Tribe v. United States, 639 F.3d 1346,
1358-59 (Fed. Cir. 2011); Hart v. United States, 910 F.2d 815, 817-18 (Fed. Cir. 1990).

        Plaintiff was discharged from the Navy in 1965, approximately fifty years before the
filing of his complaint. The decision to seek review from a military correction board does not


                                                -2-
toll this running of the statute of limitations nor does an adverse decision by a board create a new
statute of limitations. Hurick v. Lehman, 782 F.2d 984, 987 (Fed. Cir. 1986). Plaintiff’s
complaint suggests that his suit, nonetheless, is timely based on his discovery in 2009 of
assertions that allegedly impact his case. However, it is well-accepted that discovery of a new
legal theory does not impact the accrual of a claim for purposes of this court’s six-year statute of
limitations. See Catawba Indian Tribe of S.C. v. United States, 982 F.2d 1564, 1572 (Fed. Cir.),
cert. denied, 509 U.S. 904 (1993). It is, rather, “a plaintiff’s knowledge of the facts of the claim
that determines the accrual date.” Young v. United States, 529 F.3d 1380, 1385 (Fed. Cir. 2008),
cert. denied, 555 U.S. 1214 (2009); see also Eden Isle Marina, Inc. v. United States, 113 Fed. Cl.
372, 482 (2013); Stanley v. United States, 107 Fed. Cl. 94, 99 (2012) (discussing the application
of the accrual suspension rule). And that date, as noted, occurred decades ago, with no
indication whatsoever that the Navy ever attempted to conceal from plaintiff the reason for his
discharge. Accordingly, the court concludes that plaintiff’s case is time-barred. 2

       Accordingly, based on the foregoing, the court finds that plaintiff’s claim is not timely
under the six-year statute of limitations provided by section 2501.

III.   CONCLUSION

        The court need not gild the lily. Based on the foregoing, the court concludes that it must
GRANT defendant’s motion to dismiss plaintiff’s complaint under RCFC 12(b)(1). The Clerk
shall dismiss the complaint.

       IT IS SO ORDERED.



                                                              s/Francis M. Allegra
                                                              Francis M. Allegra




       2
          Even if the impact of the statute of limitations here were different – which it is not – the
court would lack jurisdiction over plaintiff’s complaint as he is not seeking pay within the scope
of the Military Pay Act, 37 U.S.C. § 204. In particular, plaintiff does not challenge that he was
properly discharged by the Navy and that his resignation was voluntary. See House v. United
States, 99 Fed. Cl. 342, 347-48 (2011), aff’d, 473 Fed. Appx. 901 (Fed. Cir. 2012).

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