GR»:¢!NAL

In the United States Court of Federal Claims

No. 16-139€

 

(Filed: June 23, 2016)

(Unpublished)

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JACQUELINE sMYuE HERBST, * JUN 23 3915

"‘ _U-S. couHT op

Piainriff, * FEDER/’~L curing

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V_ *
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THE UNITED sTATEs, *
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Defendant. *
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ORDER ON MOTION TO DISMISS

WHEELER, Judge.

Plaintiff Jacqueline Smylie Herbst brings this action for correction of her service
record as a nurse with the Commissioned Corps of the U.S. Public Health Service
("USPHS") and for commensurate back pay, service credit, and benefits For the reasons
explained below, the Court grants Defendant’s motion to dismiss for lack of subject matter

jurisdiction due to Ms. Herbst’s failure to comply with the Court’s six-year statute of
limitations.

Background

Ms. Herbst began active duty in the USPHS in 1986 and transferred to the Army
Nurse Corps in 1989. She then returned to the USPHS in 1997 and served there until she
was involuntarily separated from service at the end of 1999. To contest her separation, Ms.
Herbst submitted an application for reinstatement to the Board for Correction of Public
Health Service Commissioned Corps Rec0rds ("BFC") in November 20()O, and in
November 2001, the BFC recommended her reinstatement. Compl. Attach. 10 at 63, 104-
126. At the request of the Director of the Program Support Center, who was the deciding
official after BFC recommendations, the BFC investigated the case further and again

recommended reinstatement. §§ at l29, 178-l 8 l. However, the Director of the Program
Support Center ultimately disagreed with the BFC’s recommendations and in July 2002,
denied Ms. Herbst’s application for reinstatement. I_d. at 182-184. In September, 2002,
Ms. Herbst requested reconsideration by the Assistant Secretary of Health, U.S.

Department of Health & Human Services, which was denied in December 2002. Compl.
Attach. 9 at 20-23.

In December 2014, Ms. Herbst renewed her efforts to reverse her termination by
filing an unsuccessful action with the Merit System Protection Board ("MSPB").l Ms.
Herbst then filed the present action with this Court in January 2()16. Defendant has filed a
motion to dismiss due to lack of subject matter jurisdiction.

qStandard of Review

The Court must first determine whether a plaintiff has established subject matter
jurisdiction before proceeding to review the merits of the complaint. Fisher v. United
States, 402 F.3d 1167 (Fed. Cir. 2005). The jurisdiction of this Court is limited and extends
only as far as prescribed by statute. I_d. at ll72. It is the plaintiff’ s burden to show by a
preponderance of the evidence that his or her case fits within the jurisdictional bounds of

this Court. Reynolds v. Army and Air Force Exch. Serv., 846 F.Zd 746, 748 (Fed. Cir.
1988).

Discussion_

The general statute of limitations applicable to this Court is found in 28 U.S.C. §
2501, which bars claims filed later than six years after the claim first accrues. This statute
of limitations may not be waived by the parties or the Court. John R. Sand & Gravel Co.
v. United States, 552 U.S. 130 (2008); Martinez v. United States, 333 F.3d 1295, 1316
(Fed. Cir. 2003) (en banc). In claims such as Plaintiff’ s for back pay under the Military
Pay Act, 37 U.S.C. § 204, the claim accrues on "the date on which the service member was
denied the pay to which he claims an entitlement." l\/lartinez, 333 F.3d at 13 l4.

Ms. Herbst’s commission in the USPHS was terminated on December 3l, l999.
The final decision in her appeals before the BFC and then up to the Assistant Secretary of
Health for the Department of Health & Human Services was entered in December 2002. lt
is clear that Ms. Herbst’s claim is substantially outside the six-year statute of limitations
governing this Court’s jurisdiction.

1 The Merit System Protection Board dismissed Plaintiff s action due to lack of jurisdiction over personnel in the
uniformed services. Herbst, Jacgueline S. v. De_pt. of HHS, 2015 WL 1015505, DE-3443-l5-0l38-l-l (March 4,
2015). This MSPB ruling would not revive a claim barred by the statute of limitations

2

Although Ms. Herbst presented an arguably sympathetic case for unjust treatment
during her time with the USPHS, this Court has no choice but to dismiss her claim as barred
by the statute of 1imitations. Defendant’s motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1) of the Court is hereby GRANTED.

I'I` IS SO ORDERED.

   

`T:H i
Judge

