In the United States Court of Federal Claims

No. 16-1250€ F""ED
(Filed: September 6, 2018] SEP 06 2018
UB.COURTOF

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) Claim for disability retirement from the
LOUISE N. PEARSON, ) military; 10 U.S.C. §§ 1201, 1202;
) administrative grant of full relief on the
Plaintiff, ) permanent disability retired list; mootness;
) disability rating during period on the
v. ) temporary disability retired list
)
UNITED STATES, )
)
Defendant. )
)

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Louise Pearson, pro se, Aoton, CA.

Lauren S. Moore, Trial Attorney, Commereial Litigation Branch, Civil Division, United
States Department of .Tustice, Washington, D.C., for defendant With her on the briefs Were
Chad A. Readler, Aeting Deputy Assistant Attorney General, Civil Division, Robert E.
Kirschman, Jr., Director, and Deborah A. Bynurn, Assistant Director, Commeroial litigation
Braneh, Civil Division, United States Department of Justice, Washington, D.C.

OPINION AND ORI)ER

LETTOW, Senior Judge.

Plaintiff Louise Pearson, CAPT (ret.), United States Navy, brought suit seeking
additional military retirement pay she contends she is owed due to an improper disability rating
given to her by the Navy. Cornpl. 11 l. CAPT Pearson Was temporarily retired from the Navy for
medical reasons (1`. e., placed on the Temporary Disability Retired List, or “TDRL”) on May 15,
2008 at a 60% disability rating. Compl. 1[ 9. She Was permanently retired for medical reasons
(i. e., placed on the Permanent Disability Retired List, or “PDRL”) on October l, 2010 at the
same 60% disability rating and for the same conditions Cornpl. 1[ 9. CAPT Pearson filed her
complaint With this court on September 30, 2016, at a time When a petition by her for relief Was
still pending before the Navy’s Board for Correction of Naval Records (the “Board” or “Navy
Board”). At the request of the parties, the case Was stayed by the court to allow the Navy Board
to complete its Worlc. In due course, the Board acted to amend her disability rating to reflect
100% disability as of her permanent retirement date. CAPT Pearson contends she should have
also received an 80%-to-100% disability rating during her temporary retirementl Compl. 1[ 17.

 

The United States has moved to dismiss the complaint pursuant to Rule lZ(b)(l) of the
Rules of the Court of Federal Claims (“RCFC”). Def.’s Mot. to Dismiss (“Def.’s l\/lot.”), ECF
No. 23. The government asserts that CAPT Pearson’s claim became moot upon the award of
relief by the Navy Board because she had requested from the Board a higher disability rating
starting with either her temporary retirement or permanent retirement Def.’s Mot. at 1.

CAPT Pearson contends that she received only partial relief from the Board, as the Board
granted relief relating only to her permanent retirement Pl.’s Resp. to Def.’s Mot. to Dismiss
(“Pl.’s Resp.”) at 3, ECF No. 24; Hr’g Tr. at 16:6 to 18:7 (Aug. 9, 2018).l Simultaneously with
her response to the government’s motion, CAPT Pearson filed a motion to amend her complaint
to request relief specifically for both her temporary and permanent retirements as opposed to
relief in the alternative Pl.’s Mot. to Amend Compl. (“Pl.’s l\/lot. to Amend”), ECF No. 25.
Each party has filed briefs addressing the motion to dismiss and the motion to amend, and a
hearing was held on August 9, 2018. At the hearing, the court requested supplemental briefs
regarding whether the Board had considered CAPT Pearson’s request to review her disability
rating during her temporary retirement Both parties filed supplemental briefs on August 21,
2018, and the motions consequently are ready for decision.

The issues before the court are: (l) whether CAPT Pearson’s claim is mooted by the
relief afforded by the Navy Board in May 2017 and (2) whether the court should allow CAPT
Pearson to amend her complaint to reflect an independent request for relief during the period of
her temporary retirement

The court concludes that CAPT Pearson’s claim has been rendered moot by the
administrative proceeding before the Navy Board, which granted the relief sought by CAPT
Pearson. Therefore, this court now lacks jurisdiction Accordingly, the government’s motion to
dismiss the complaint is GRANTED. CAPT Pearson’s motion to amend the complaint is
DENIED because this court would lack jurisdiction to hear the temporary retirement claim due to
a time-bar by the statute of limitations

FACTS

CAPT Pearson sustained injuries in 2004 while serving on active duty in the United
States Navy. Def.’s Reply to Pl.’s Resp. to Def.’s Mot. to Dismiss (“Def.’s Reply”) Suppl. App.
at 2, ECF No. 26 (containing CAPT Pearson’s Board application). The Navy convened an
informal Physical Evaluation Board (“PEB”) on October 17, 2007 to evaluate her conditions
Def.’s Resp. to Ct.’s Inquiries App. at 30, ECF No. 33. The informal PEB recommended
temporary retirement at a 60% disability rating. Ia’. CAPT Pearson rejected the findings on
November 9, 2007, but then, on February 22, 2008, decided to accept the findings, foregoing a
proceeding before a formal PEB. Id. App. at 36 (initial rejection), 32 (acceptance). She was
temporarily retired due to disability on May 15, 2008 at a 60% disability rating. Compl. ll 9.
CAPT Pearson subsequently was evaluated by the Social Security Administration and the
Department of Veterans Affairs. Compl. 1[ 10-12. The Social Security Administration found
CAPT Pearson to be totally disabled on October 19, 2008, with an effective disability date of

 

EFurther citations to the transcript of the hearing held on August 9, 2018 will omit
reference to the date.

 

June l, 2006. Compl. ll ll. The Department of Veterans Affairs found CAPT Pearson to be
totally disabled on July 7, 2010, with an effective disability date of July l7, 2008. Compl. ‘ll 12.
Following a second PEB, CAPT Pearson was permanently retired on October l, 2010 at a 60%
disability rating and for the same conditions Compl. il 9. This case arose because CAPT
Pearson disputed the assigned disability rating, arguing it should be “at least 80% and as much as
100%,” Compl. il l7', Pl.’s Resp. at 3, which would generate an increase in her retirement benefit,
Compl. il 18; Pl.’s Resp. at 3~4.

CAPT Pearson sought review of her disability rating before the Navy Board on August
23, 2013. Def.’s l\/lot. at 2~3; Def.’s Reply Suppl. App. at 1. She claimed that the Navy
evaluated her medical condition erroneously when retiring her and failed to consider the entirety
of her medical records, resulting in a lower disability rating than warranted, See generally Def.’s
Reply Suppl. App., and consequently, less retirement pay than should have been allowed

CAPT Pearson filed suit in this court on September 30, 20l6 while ber Navy Board
application was still pending Def.’s Mot. at 2-3. ln December 20l 6, this court granted an
unopposed motion to stay proceedings to allow additional time for the Board to issue a decision.
ln May 2017, the Navy Board corrected CAPT Pearson’s military record to reflect a 100%
disability rating effective October l, 2010. Def.’s Mot. at 3 & App. at 3-4 (Board decision). As
a result, she began receiving retired pay at a 100% disability rating and also received back pay
though October l, 2010 for the monetary difference attributable to the increased disability rating.
Def.’s Mot. at 3. The Board did not change her disability rating during the period she was on the
TDRL, Def.’s l\/lot. App. at 2-3, and CAPT Pearson seeks additional back pay covering that
period. She argues that she should have received retired pay during temporary retirement at an
80% or 100% disability rating, not at a 60% rating. Pl.’s Resp. at l, 3.

In briefs to this court submitted subsequent to the Navy Board’s decision, CAPT Pearson
contends that the Navy’s denial of certain treatment was retaliatory and that she consented to the
temporary retirement disability rating only under duress. Pl.’s Reply to Def.’s Opp’n to Pl.’s
Mot. to Amend the Compl. (“Pl.’s Reply”) at 2-6, ECF No. 28; see also Hr’ g Tr. at 28:15 to
31 :18.2 The Command lnspector General (“lnspector General”) of l\/larine Corps Base Camp
Lejeune initiated a “command climate” investigation into CAPT Pearson’s unit in January 2008.

 

2In an advisory opinion by the Navy’S Council of Review Boards (“Council of Review”),
which was considered by the Navy Board, the Council of Review makes a brief reference that
CAPT Pearson may have accepted the disability rating for her temporary retirement with
“reported significant reservations.” Def.’s Resp. to Ct.’s lnquiries App. at 39 (Council of
Review Advisory Opinion to Board (May 22, 2017)). lt is not apparent whether these
“reservations” refer to the alleged duress or merely to disagreement with the assigned rating.
The first reference in the record before the court to duress or involuntary acceptance of the
informal PEB occurs in Plaintiff’s Reply at 2-6.

The Council of Review Boards hears direct appeals from the Navy Physical Evaluation
Board. See SECNAVINST 1850.4E, ll 4. This entity was previously known as the Naval
Council of Personnel Boards. Id.; see also Pl.’s Reply App. at 1-2.

 

See Pl.’s Reply at 3 & App. (lnspector General’s Report of lnquiry).3 The Inspector General’s
report substantiated CAPT Pearson’s claims about being denied proper medical care, although
there is no discussion of retaliation regarding her PEB or signing under duress to accept the
informal PEB’s findings and to waive a formal PEB, Pl.’s Reply App. at 99-100.

The lnspector General’s investigation began after the informal PEB recommended
temporary retirement at 60% disability on October 17, 2007. See Def.’s Resp. to Ct.’s lnquiries
App. at 30 (Findings of the Physical Evaluation Board Proceedings (Oct. 17, 2007)). Prior to the
start of the lnspector General’s investigation, CAPT Pearson had rejected the PEB’s findings on
November 9, 2007 and requested a formal PEB. Def.’s Resp. to Ct.’s Inquiries App. at 36
(rej ection). While the investigation was still underway, CAPT Pearson decided on February 22,
2008 to accept the informal PEB’s findings and withdraw her request for a formal PEB. fnl App.
at 32 (acoeptance). The lnspector General’s investigation concluded two months before CAPT
Pearson was placed on the TDRL. Pl.’s Reply App. at 1,

STANDARDS FOR DECISION
A. Rule 12(1))(]) 4~ Lack of Subject-Matrer Jurfsdiclion

The Tucl<er Act provides this court with jurisdiction over “any claim against the United
States founded either upon the Constitution, or any Act of Congress or any regulation of an
executive department, or upon any express or implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § l491(a)(l). The
Tucl<er Act does not, however, provide a plaintiff with any substantive rights. United Sla:.‘es v.
Tesfan, 424 U.S. 392, 398 (l976). To establish this court’s jurisdiction under the Tucker Act, “a
plaintiff must identify a separate source of substantive law that creates the right to money
damages.” Fisher v. United Stares, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant
part) (citing United Srates v. Mz`tchell, 463 U.S. 206, 216 (1983); Testan, 424 U.S. at 398).
Claims for disability retirement pay, whether for temporary or permanent retirement, are money-
mandating claims. 10 U.S.C. §§ l201-02.

The court must retain jurisdiction throughout the entirety of litigation With limited
exceptions inapplicable here, if the controversy ceases to exist during pendency of litigation, the
case becomes moot and thus non-justiciable See Gera’au Ameristeel Corp. v. United States, 519
F.3d 1336, 1340 (Fed. Cir. 2008) (“[T]o avoid dismissal for mootness, an actual controversy
must remain at all stages, not merely at the time the complaint is filed.”) (citing Stejj%l v.
Thompson, 415 U.S. 452, 460 n.10 (1974)). A controversy ceases to exist, and thus becomes
moot, when “(1) it can be said with assurance that there is no reasonable expectation . . . that the
alleged violation will recur and (2) interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation.” Tunik v. Merir Sys. Protectz'on Bd., 407 F.3d
1326, 1331 (Fed. Cir. 2005) (citing Coimty ofLos Angeles v. Davis, 440 U.S. 625, 631 (1979))
(internal citation and quotation marks omitted). A case that becomes moot must be dismissed for
lack of jurisdictionl See Gerdau Ameristeel, 519 F.3d at l340. Standing doctrines including

 

3The lnspector General’s report is heavily redacted under Freedom of Information Act
exemption 7(C). See Pl.’s Reply App. at 4-8 (redacting per “(b)(7)(C)”, i.e., 5 U.S.C. §
552(b)(7)(C)).

 

 

mootness arise from the case-or-controversy requirement of Article lll of the Constitution. E.g.,
Lujan v. Defena'ers of Wildlife, 504 U.S. 555, 561 (l992); see also Nortlz Carolina v. Rice, 404
U.S. 244J 246 (1971) (“l\/lootness is a jurisdictional question” that “derives from the requirement
of Article 111 . . . [of aj case or controversy.)”) (citing Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3
(1964)). These doctrines apply to this court. Anderson v. United States, 344 l~`.3d 1343, 1350 n.l
(Fed. Cir. 2003) (“The Court of Federal Claims . . . applies the same standing requirements
enforced by the other federal courts created under Article lll.”); 28 U.S.C. § 25 l9 (empowering
the Court of Federal Claims to enter final judgments in any “claim, suit, or demand against the
United States arising out of matters involved in the case or controversy”).

A claim in this court is “barred unless the petition thereon is filed within six years after
such claim first accrues.” 28 U.S.C. § 2501. The six~year statute of limitations specified in
Section 2501 is jurisdictional, John R. Sana' & Gravel Co. v. United States, 552 U.S. 130, 133-36
(2008), and is not susceptible to equitable tolling or any of the other doctrines that would excuse
an untimely claim, id. at l33-34. “Courts created by statute can have no jurisdiction but such as
the statute confers.” Christianson v. Col! Indus. Operating Corp., 486 U.S. 800, 818 (1988)
(quoting Slielclon v. Sill, 49 U.S. (8 How.) 441, 499 (1850)).

CAPT Pearson, as plaintiff, must establish jurisdiction by a preponderance of the
evidence. Trusted lnlegrarion, Inc. v. United Sfates, 659 F.3d 1l59, 1163 (Fed. Cir. 2011)
(citing Reynolds v. Army & Air Force Exch. Serv,, 846 F.2d 746, 748 (Fed. Cir. 1988)). When
ruling on the government’s motion to dismiss for lack of jurisdiction, the court must “accept as
true all undisputed facts asserted in the plaintiffs complaint and draw all reasonable inferences
in favor of the plaintiff” ld. (citing Henke v. United Stares, 60 F.3d 795, 797 (Fed. Cir. 1995)).
“lf a court lacks jurisdiction to decide the merits of a case, dismissal is required as a matter of
law.” Gray v, United Stares, 69 Fed. Cl. 95, 98 (2005) (citing Ex parte McCara'le, 74 U.S. (7
Wall.) 506, 514 (l868); Thoen v. UnitedSlales, 765 F.2d 1110, 1116 (Fed. Cir. l985)); RCFC
l2(h)(3) (“If the court determines at any time that it lacks subject~matter jurisdiction, the court
must dismiss the action.”).

B. Review ofDecisions by a Mz'lirary Correction Board

“The Court of Federal Claims reviews a Board decision to determine if it is arbitrary,
capricious, contrary to law, or unsupported by substantial evidence.” Roth v. United States, 378
F.3d l371, 1381 (Fed. Cir. 2004) (citing Heisz'g v. United Stafes, 7l9 F.2d 1153, l156 (Fed. Cir.
l983)); accord Melendez Camilo v. United Sfates, 642 F.3d 1040, 1044 (Fed. Cir. 2011). The
arbitrary and capricious standard “requires a reviewing court to sustain an action evincing
rational reasoning and consideration of relevant factors.” Adva.nced Data Concepts, Inc. v.
United Stares, 216 F.3d 1054, 1058 (Fed. Cir. 2000).

C. Amena'ing Pleaclings Una'er Rule 15(0)

“A party may amend its pleadings once as a matter of course within [] 21 days after
service . . .; or if the pleading is one to which a responsive pleading is required, 21 days after
service of a responsive pleading or . . . a motion under RCFC l2(b) . . , .” RCFC 15(a)(1). “ln
all other cases, a party may amend its pleading only with [either] the opposing party’s written
consent or the court’s leave.” RCFC 15(a)(2).

 

l
|

 

“The court should freely give leave when justice so requires,” RCFC l5(a)(2), although
the decision is “within the discretion of the trial court,” Mffsw' Foods, Inc. v. United Srafes, 867
F.2d 1401, 1403 (Fed. Cir. 1989). While “that discretion should be exercised liberally,” a court
may deny amendment for “undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or] futility of amendment.” Mitsuz'
Fooals, 867 F.2d at 1403~04 & n.4 (quoting Foman v. Davis, 37l U.S. 178, 182 (1962)) (internal
quotes omitted).

ANALYSIS
I. Whether Relief Afforded by the Navy Board Renders Moot CAPT Pearson’s Claim

The salient issue is whether CAPT Pearson’s complaint is moot given the relief afforded
to her by the Navy Board. The Navy Board considered whether to adjust CAPT Pearson’s
disability rating for both her temporary retirement and permanent retirement, and decided only to
grant relief effective upon her permanent retirement 'l`he advisory opinion of the Council of
Review specifically had addressed both CAPT Pearson’s permanent and temporary retirement,
and found that insufficient evidence existed to change either. See Def.’s Resp. to the Ct.’s
lnquiries App. at 39~40 (Council of Review Advisory Opinion). CAPT Pearson’s rebuttal to that
opinion reiterated a claim for relief for both her temporary and permanent retirement Icl. App. at
44 (Rebuttal). The Navy Board’s decision indicated that it considered the advisory opinion and
CAPT Pearson’s rebuttal ial App. at 51, 53 (Board decision), and that the board “substantially
concurred with the opinions” of the Council of Review regarding the temporary retirement
disability rating, consequently rejecting relief relating to temporary retirement, fal. App. at 52.
The Board stated, regarding the two non~rated conditions raised by CAPT Pearson relating to her
temporary retirement, that “suffrcient evidence exists to Support the Navy’s decision not to refer
[CAPT Pearson] to the PEB for any mental health conditions or bi-lateral upper extremity
radiculopathy[, and the Boardl concluded that no relief was warranted regarding [her] request to
add those two conditions . . . to her PEB record.” Ia’. App. at 53. The Board, therefore, granted
“partial relief,” amending only the disability rating for her permanent retirement, ial App. at 53,
stating that “[n]o other relief is warranted,” ia'.; see also Hr’g Tr. at 39:l4 to 40: l3.

The parties nonetheless disagree over whether the relief awarded is complete The
government contends that CAPT Pearson received the relief she requested from the Board
because she asked for relief effective from either the date of permanent retirement or temporary
retirement, one of which she was grantedl Def.’s Resp. to Ct.’s lnquiries at 2; Def.’s Reply at 2~
3; see also Compl. il l7 (“Had her case been properly adjudicated, [CAPT Pearson] should have
been retired, either originally or upon [permanent retirement], with a rating of at least 80% and
as much as l00%.”) (emphasis added)', Def.’s Opp’n to Pl.’s l\/lot to Amend the Compl. (“Def.’s
Opp’n”) Suppl. App. at 1 (Board application form) (requesting corrections to permanent
retirement only), ECF No. 27. CAPT Pearson responded by arguing that her complaint requests
corrections to both her temporary and permanent retirement, Pl.’s Resp. at 2-3; Pl.’s Reply to
Def.’s Reply to Opp’n to Def.’s Mot. to Dismiss (“Pl.’s 2d Resp.”) at 1, ECF No. 29.; Hr’g Tr.
16:6 to 1817 (Aug. 9, 2018), attributing the disjunctive language to a “scrivener’s error” by her
former attorney, Pl.’s l\/lot. to Amend at l, 6. ln contrast to the complaint, filings before the
Navy Board did not seek relief in the alternative See Def.’s Opp’n Suppl. App. at 3, 5 (Board

 

 

 

application narrative) (requesting relief for temporary retirement separate from relief for
permanent retirement); Def. ’s Resp. to Ct.’s lnquiries App. at 44 (advisory opinion rebuttal)
(requesting separate relief).

In short, CAPT Pearson’s submissions to the Navy Board indicate that she requested
relief regarding her permanent retirement separate from her temporary retirement Her
complaint before this court, however, indicates otherwise She contends that if the Navy had
acted properly, she should have been given a higher disability rating “either [] on the Temporary
Disability Retir'ement List (‘TDRL’) or the Permanent Disability Retirement List (‘PDRL’) . . . .”
Compl. ll 3. CAPT Pearson reiterates that “[h]ad her case been properly adjudicated she should
have been retired, either originally or upon the PDRL, with a rating of at least 80% and as much
as 100%.” Compl. ll 17. The Navy Board’s decision remedies the harm caused to CAPT
Pearson insofar as her permanent disability rating has been increased to 100% effective October
l, 2010 and she has received all back pay owed to her due to the correction T he disjunctive
language of the complaint creates options to afford relief, and the Navy Board’s decision
satisfies one of those options Consequently, the relief requested in the complaint has been
provided Absent amendment of the complaint, CAPT Pearson’s claim has been mooted in this
court by her success before the Board.

II. Whether CAPT Pearson Can Amend Her Complaint

CAPT Pearson’s proposed amendment to her complaint would request relief on her
temporary retirement claim independently from her permanent retirement claim. Permitting the
amendment would render the Navy Board’s relief as partial, allowing for this suit to proceed
regarding back pay owed during the 28 months of CAPT Pearson’s placement on the TDRL.
CAPT Pearson filed her motion to amend her complaint on June 28, 20l 8, more than 21 days
after May 3l, 2018, when the government filed its motion to dismiss under RCFC 12(b)(l). See
RCFC 15(a)(l)(B). The amendment therefore requires this court’s permission, see RCFC 15(a),
and the government opposes the proposed amendment, see generally Def.’s Opp’n.

A. Pr'ejadz'ce to the Governmem

The government contends that amendment of the complaint would prejudice its posture in
the case. Def.’s Opp’n at 3-4. Amending the complaint “at this late date would require the
parties, as well as the [c]ourt, to litigate issues that could have, and should have[,] been litigated
earlier,” especially given that the parties had agreed to a stay to let the Navy Board act on CAPT
Pearson’s request for relief. Id.; see Mitsui Fooa's, 867 F.2d at 1403 (court should not permit
amendment if prejudicial to the non-moving party).

“Undue prejudice may be found when an amended pleading would cause unfair surprise
to the opposing party, unreasonably broaden the issues, or require additional discovery.” Cooke
v. United States, 79 Fed. Cl. 741, 742-43 (2007) (allowing defendant to add an affirmative
defense upon realizing its omission when responding to plaintiffs motion for summary
judgment). Tommaseo v. United S).‘ates, 80 Fed. Cl. 366, 373 (2008), reached a similar result
where an additional set of claims rather than a defense was amended There, the court found no
prejudice in allowing property owners in an inverse condemnation case to amend the complaint
to add additional parties with similar factual backgrounds because the government had sufficient

 

 

 

notice of the claims and amendment would not cause surprise, broaden the issues, or require
additional discovery Id. at 373-75.

Here, the government has had full knowledge of CAPT Pearson’s temporary retirement
claim and its factual background Had the Board not granted relief, both the temporary and
permanent retirement claims would be at issue. CAPT Pearson’s amended complaint raises no
new legal theories nor requires additional consideration administratively by the Board. The
timing does not itself constitute undue delay, as CAPT Pearson seeks to amend in response to the
government’s motion to dismiss. 'l`hough untimely for amendment as of right, a pro se plaintiff
seeking amendment one month after receiving a motion to dismiss does not connote a lack of
diligence See, e.g., Tommaseo, 80 Fed. Cl. at 373 (two years from filing complaint not
excessive).

B.\ Futilily Due to Srarule ofLimfrations

The government further opposes amending the complaint on the grounds that the
temporary retirement claim is time-barred by the statute of limitations, and amendment therefore
would be futile. Def.’s Opp’n at 3-4. The government argues that the temporary retirement
claim accrued on May 15, 2008, the date of her temporary retirement Def.’s Resp. to Ct.’s
lnquiries at 4.

CAPT Pearson filed her complaint on September 30, 2016. Compl. 11 1. l-Ier claim must
have accrued on or after September 30, 2010 to be within the jurisdiction of this court. See 28
U.S.C. § 2501 (specifying a six-year statute of limitations). CAPT Pearson defends her motion
to amend by stating that the statute of limitations did not begin to run until l\/lay 2017, when the
Navy Board issued its decision. Pl.’s Reply at 2-3, 5~6 (citing Blassingame v. Secremry of the
Navy, 811 F.2d 65, 71 (2d Cir. 1987)). Blassz`ngame held the statute of limitations for a
challenge to a decision by a correction board ran upon final action by the correction board, and
not upon action by the prior review boards or upon discharge 811 F.2d at 70-71.

As a preliminary matter regarding accrual, disability claims are treated differently from
wrongful discharge claims. See Chambers v. United Sl'ates, 417 F.3d 1218, 1224 (Fed. Cir.
2005). Claims for a wronng discharge accrue at the time of discharge, and seeking relief from
a correction board is a permissive remedy. Id. at 1223-24 (Fed. Cir. 2005) (citing Martinez v.
United Stares, 333 F.3d 1295, 1303 (Fed, Cir. 2003)). Contrastingly, claims for “disability
retirement generally do not accrue until an appropriate military board either finally denies such a
claim or refuses to hear it,” and action by a board is mandatory before this court has jurisdiction
Id. at 1224. “The decision by the first statutorily authorized board that hears or refuses to hear
the claim invokes the statute of limitations,” id., and this court does not acquire jurisdiction until
after both “the retiring board and the Secretary [havej acted,” id. (quoting Furlong v. United
Srafes, 152 F.Supp. 238, 240-41 (Ct. Cl. 1957)). Where a PEB reviewed the request, which will
occur pre-discharge, “the limitations period begins to run upon discharge.” Id. at 1225 (citing
Real v. United Srcrfes, 906 F.2d 1557, 1560 (Fed. Cir. 1990)).

For CAPT Pearson, the first board was the informal PEB that convened on October 17,
2007. The recommendation of this board, temporary retirement at 60% disability, resulted in
CAPT Pearson being placed on the TDRL on l\/lay 15, 2008.

 

 

 

The court in Cronln v. United Slates, 765 F.3d 133l (Fed. Cir. 2014), addressed the effect
of temporary retirement on military service. ln Crom`n, a case with a similar factual background,
a Navy officer appealed a decision of the Navy Board to not increase her disability rating, Ia’. at
l332-34. While acknowledging that more than six years had elapsed from the PEB’s action that
set the disability rating, the officer argued that the statute of limitations was tolled by the
Servicemembers Civil Relief Act. la'. That Act states that a “period of military service may not
be included in computing” the statute of limitations 50 U.S.C. § 393 6. Military service ends
upon either release or death and includes “any period during which a servicemember is absent
from duty on account of sickness, wounds, leave, or other lawful cause.” 50 U.S.C. § 3911.
Reversing the trial court, the Court of Appeals for the Federal Circuit held that the
Servicemembers Civil Relief Act “did not toll the six-year statute of limitations . . . for the [time]
that [the Navy officer] was on the 'l`emporary Disability Retired List under 10 U.S.C. § 1202.”
Crom'n, 765 F.3d at 1334. The court noted that upon temporary retirement, the officer received a
Form DD-214 (Certificate of Release or Discharge from Active Duty), had no “persis-ting duty”
of service, and could not be returned to service without her consent. ld. at 1333, 1335-36', see
also l0 U.S.C. §§ 1210(f)(l), 1211. Thus, because temporary retirement engenders a discharge
and occurs subsequent to action by a competent board, CAPT Pearson’s temporary retirement
commenced the statute of limitations for her temporary retirement claim. Chambers, 417 F.3d at
l225 (commenting that the statute of limitations began to “run upon discharge”); see also
Cronin, 765 F.3d at 1335-1338 (holding that temporary retirement results in discharge);
Dambrava v. Ojj"‘l`ce of Personnel Mgmf., 466 F.3d 1061, 1062 (Fed. Cir. 2006) (“[T]ime spent on
the TDRL did not qualify as ‘creditable [military] service.”’); Crafl v. Um'lea' Srales, 544 F.2d
468, 476 (Ct. Cl. 1976) (A member on the TDRL “is actually separated from the military.”).

CAPT Pearson has not argued that her temporary retirement tolled the statute of
limitations, but she does contend that the temporary retirement claim did not accrue upon her
placement on the 'l`DRL and her temporary discharge That contention is unavailing under
Chaml)ers and Cronin, which bind this court to conclude that CAPT Pearson’s temporary
retirement claim accrued upon temporary retirement on May l5, 2008 and ran continuously
thereafter4

 

4The record does not indicate whether CAPT Pearson was issued a DD-2l4 upon her
retirement in May 2008. But, CAPT Pearson was receiving retired pay between May l5, 2008
and October 1, 2010. See Compl. ‘\H[ 1, 9; Hr’g Tr. 5: 18 to 6:18. Navy regulations require a DD-
214 for “personnel being separated . . . for physical disability.” Bureau of Naval Personnel,
Certificate of Release or Discharge from Active Duty [DD 214], BUPERSINST 1900.8D, encl. l
at 1 (2010). Further, Navy regulations state that attending required physical examinations, which
apply to a service member placed on TDRL, “do not constitute assignment to active duty.” Navy
Military Personnel l\/lanual, NAVPERS 15560D, art. 1850-030 Temporary Disability Retired
List (TDRL), at 1 (2002).

Alternatively, CAPT Pearson’s claim accrued immediately upon the decision of the
informal PEB in October 2007, but was tolled by 50 U.S.C. § 3936 until her discharge from
active service on May 15, 2008. Either way, the limitations period for the temporary retirement
claim commenced on May 15 , 2008 and expired on May 15, 2014.

 

CAPT Pearson’s argument that Chambers and Crom'n were rendered inapplicable when
the Navy Board issued its decision also fails. First, CAPT Pearson’s original complaint does not
challenge the Navy Board’s decision; she challenged the 2007 and 2010 PEBs. At the time of
filing in 2016, the Board had not rendered its decision lf CAPT Pearson’s claim did not accrue
until the Board issued its decision, she would not have been able to file her original complaint
Her claim would have been unripe for failure to exhaust the administrative remedy provided by
the Board, once she sought to invoke it. Moreover, the 2007 PEB was the “first competent
board” that triggered the statute of limitations Chaml)ers, 417 F.3d at 1225 (quoting Frr`edman
v. United Srates, 310 F.2d 381, 396 (Ct. Cl. 1962)). The Navy’s action on the PE.B’s findings
gave CAPT Pearson the right to sue, regardless of whether she pursued relief before the Navy
Board. Her resort to the Navy Board meant that the Navy Board was the second “competent
board” to evaluate her temporary retirement Because her “first competent board” occurred prior
to discharge, her claim accrued upon discharge Icl. The Board’s decision would only trigger the
statute of limitations if CAPT Pearson had not “had or sought a Retiring Board [now PEB].” ld.
at 1225 (quoting Fr'z`eclman, 3 l0 F.2d at 396).

Second, CAPT Pearson’s reliance on Blasslngame is misplaced ln Blasslngcrme, a
Marine Corps veteran received an “undesirable discharge” and petitioned discharge review
boards twice for a discharge upgrade before applying for relief from a military records correction
board. 811 F.2d at 66-68. Again, disability claims are treated differently from wrongful
discharge claims regarding the statute of limitations when the board action occurs post-
discharge. Chaml)ers, 417 F.3d at 1224. The Marine veteran’s claim for wrongful discharge in
Blassingame had a different accrual date from CAPT Pearson’s disability claim. As the court in
Chamber‘s held for retirement disability claims, the decision of the “first competent board” that
hears the claim “invokes the statute of limitations” and the “period begins to run upon discharge”
if the board acts prior to discharge Id. at 1224-25 (citing Real, 906 F.2d at 1560). Moreover,
Blassingame is not precedential in this court. The Federal Circuit has rejected Blassingame’s
accrual rule, as noted in that opinion by the Court of Appeals for the Second Circuit, see
Blassinga.me, 811 F.2d at 70 (discussing the circuit split), and as recognized in Marlinez, see
Marrlnez, 333 F.3d at 1313 (distinguishing Blassingame); See also Chambers, 417 F.3d at 1224
(distinguishing wrongful discharge from disability claims).

Thir‘d, no claim accrued when the Navy Board denied relief relating to CAP'l` Pearson’s
placement on the TDRL because the Board merely failed to remedy the injury allegedly caused
by the PEB in 2008, and the Board’s rejection of the TDRL claim does not create a second cause
of action. Martinez, 333 F.3d at 1313 (The plaintiffs “cause of action did not accrue when the
Correction Board declined to overturn his separation, because [the correction board] did not
cause monetary injury, but merely failed to remedy the injury he had previously suffered.”).
CAPT Pearson’s alleged injury occurred upon her temporary retirement in 2008 following the
2007 PEB. The monetary injury “[does] not accrue for a second time when the Correction Board
refuse[s] to grant [petitioner’sj request for relief.” Marl'inez, 333 F.3d at 1311 (citing Frieclman,
310 F.2d at 397 (“[ljt does not follow from the general existence of judicial review for
Correction Board decisions that those decisions create a new substantive cause of action which
has its own, new, limitations period.”) (emphasis in original)). While Chambers clarified the
difference between a disability claim and an unlawful discharge claim, it did not disturb
Marrinez’s holding respecting the “second cause of action” theory first rejected by Friedman.
See generally Chaml)ers, 417 F.3d 1218 (citing Friedman, 310 F.3d 381, approvingly).

10

 

 

Fourth, CAPT Pearson filed with the Navy Board in 2013, before her temporary
retirement claim expired in 2014. But filing before the Board did not toll the statute of
limitations because resort to the Board was permissive While pursuing a mandatory
administrative remedy would toll the statute of limitations, pursuing a permissive administrative
remedy would not. Martinez, 333 F.3d at 1304.

C. Whelher CAPTPearson ’s Claim ofDuress Would Modij§) the Time of Accrual

CAPT Pearson seeks to invoke duress to obviate any bar based on the statute of
limitations to her claim for disability in connection with her placement on TDRL. CAPT
Pearson specifically argues that she accepted the TDRL findings of the informal PEB under
duress, i.e., that her acceptance was involuntary5 CAPT Pearson first raised this issue before the
court in response to the government’s opposition to her motion to amend. There is no mention of
duress in the original or proposed amended complaint Rather, these complaints aver that the
PEB erred in evaluating her medical conditions CAPT Pearson did provide evidence of
improper medical treatment, some of which was willfully improper, by providing the l\/larine
lnspector General’s report. See supra at 3-4. Evidence of improper medical treatment,
however, is not necessarily a basis for a belief that seeking disability review would have
triggered retaliation against her, resulting in a lowering or canceling of her disability benefits

CAPT Pearson cannot challenge for the first time via a reply brief the validity of her
waiver and acceptance of the 2007 PEB and thus vitiate the date of her first competent board
regarding placement on the TDRL. See Kemz`n Foocls, L.C. v. Pigmemos Vegerales Del Cenrro
S.A. de C. V., 464 F.3d 1339, 1354-55 (Fed. Cir. 2006) (ruling that an amended complaint must
state a claim and proffer facts to survive a motion to dismiss); Cook, 123 Fed. Cl. at 305 & n.15
(rejecting plaintiffs claim of involuntary waiver when he raised it for the first time in a reply
brief]. Nor can she challenge the Navy Board’s decision for failing to consider her claim of
involuntary acceptance of the 2007 PEB because the issue of involuntary acceptance of the 2007
PEB does not appear to have been raised before the Board. CAP'l` Pearson’s application to the
Board does not aver or allege that she accepted the informal PEB under duress, and duress was
not raised when she provided a rebuttal to the Council of Review’s advisory opinion If she had
raised the issue before the Board, this court could have considered it. See Brown v. United
Srares, 4 Fed. Appx. m, H, 20l8 WL 4181764, at *1 (Fed, Cir. Aug. 30, 2018). ln the
procedural setting at hand, however, she cannot bring the claim of duress before the court. See
Merz v. United Srares, 466 F.3d 991, 999 (Fed. Cir. 2006) (holding that a plaintiff cannot
challenge a correction board’s decision on grounds not raised before the board, when the plaintiff

 

5A knowing and voluntary acceptance of both the findings of an informal PEB and a
waiver of a formal PEB precludes this court from reviewing the decision of the informal PEB.
E. g., Cook v. United Stales, 123 Fed. Cl. 277, 304-05 (2015) (citing recent cases applying this
proposition). CAPT Pearson signed a statement waiving that right and accepting the findings of
the informal PEB. Def.’s Resp. to Ct.’s Inquiries App. at 32 (accepting the October 2007 PEB).
CAPT Pearson challenges that waiver as involuntary and thus of no effect The issue, then, is
whether her waiver was knowing and voluntary See, e.g., Van Cleave v. United States, 402 F,3d
1341, 1344 (Fed. Cir. 2005); Srine v. United Sta.tes, 92 Fed. Cl. 776, 79l-92 (2010).

11

 

 

challenged the voluntariness of his separation for the first time in response to a motion to
dismiss, having not raised it in his complaint or before the correction board).6

CONCLUSION

For the reasons stated, CAPT Pearson’s claim has been rendered moot by the relief
granted by the Board of Correction of Naval Records. Accordingly, the government’s motion to
dismiss CAPT Pearson’s complaint is GRANTED. CAPT Pearson’s motion to amend is
DENIED for lack of jurisdiction over her claim for relief related to her placement on the TDRL.

No costs.

lt is so ORDEREI).

lt%ie/e

Charle§ 15, f,ettow
Senior Judge

 

l
§
l
g

 

6CAPT Pearson may be able to again apply to the Navy Board regarding the issue of
waiving a formal PEB under duress, but that would be a matter for the Board’s consideration
under its equitable powers.

12

 

