       NOTE: This disposition is nonprecedential

  United States Court of Appeals
      for the Federal Circuit
              __________________________

               SALAHDINE SABREE,
                 Plaintiff-Appellant,
                          v.
                  UNITED STATES,
                  Defendant-Appellee.
              __________________________

                      2010-5041
              __________________________

    Appeal from the United States Court of Federal
Claims in case no. 09-CV-369, Judge Marian Blank Horn.
              ___________________________

               Decided: February 9, 2011
             ___________________________

    MICHAEL D. J. EISENBERG, Law Office of Michael D.J.
Eisenberg, of Washington, DC, argued for plaintiff-
appellant.

   RENEE GERBER, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC for defendant-appellee. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and DONALD E.
KINNER, Assistant Director.
SABREE   v. US                                          2


                 __________________________

   Before RADER, Chief Judge, DYK, and PROST, Circuit
                        Judges.
PER CURIAM.


    Salahdine Sabree (“Sabree”) appeals a decision of the
Court of Federal Claims (“Claims Court”). Sabree sought
back pay and other monetary benefits, and correction of
his military records. The Claims Court dismissed, finding
that Sabree’s claim was barred by the statute of limita-
tions. We affirm.
                       BACKGROUND
    Sabree served in the United States Army from 1979 to
1983. He achieved the rank of Specialist (E-4) in 1981,
but because of six non-judicial punishments imposed
against him during his service, by 1983 he had been
reduced to the rank of Private. On October 9, 1982,
Sabree suffered neck and ankle injuries in an automobile
accident that occurred while he was on active duty. In
May 1983, a Medical Evaluation Board convened and
found Sabree medically unfit for service. The case was
referred to an informal Physical Evaluation Board
(“PEB”), which concluded Sabree was fit for duty. How-
ever, on June 27, 1983, a formal PEB concluded that his
injuries rendered him unfit for service. The formal PEB
recommended Sabree be separated from service and
receive a 20 percent disability rating. On November 9,
1983, Sabree was honorably discharged on the grounds of
a physical disability, and on December 19, 1983, an Army
Ad Hoc Review Board determined that he was entitled to
severance pay at the rank of Private First Class (rather
than Private or Specialist). He did not receive continuing
3                                              SABREE   v. US


disability payments because only a rating of 30 percent or
more would create such an entitlement. See 10 U.S.C. §
1203(b)(4).
    Apparently at some time after his discharge, Sabree
applied for benefits from the VA and was awarded disabil-
ity benefits. In 1999, Sabree asked for a benefits increase
from the Department of Veterans Affairs (“VA”), and on
November 15, 2000, the VA found Sabree had a 70 per-
cent rating for service connected major depression. On
July 7, 2004, Sabree applied to the Army Board for Cor-
rection of Military Records (“Corrections Board”) and filed
two subsequent requests for reconsideration, arguing,
inter alia, that he should have received a higher disability
rating and increased military disability benefits at the
time of discharge. The Corrections Board rejected these
claims.
    On June 3, 2009, Sabree filed suit in the Claims
Court, claiming that he was entitled to an increased
disability rating and correction of his military records.
The Claims Court dismissed the claim, holding that
Sabree’s claim was barred because he did not file his
claim within the six-year statute of limitations under 28
U.S.C. § 2501. Sabree argued that the limitations period
should be equitably tolled because of a mental disability.
The Claims Court rejected Sabree’s argument that the
limitations period should be tolled, determining that
Sabree was capable of comprehending his legal rights
during the limitations period. 1 Sabree also argued that
he asserted jurisdiction under Section 706 of the Adminis-
trative Procedure Act (“APA”), but the Claims Court


    1   Sabree also argued that his claims did not accrue
until he sought review from the Corrections Board. The
Claims Court rejected this argument, and Sabree does not
raise this argument again on appeal.
SABREE   v. US                                              4


determined that it lacked jurisdiction over APA claims.
Sabree timely appealed to this court, and we have juris-
diction pursuant to 28 U.S.C. § 1295(a)(3).
                        DISCUSSION
    We review legal determinations by the Claims Court,
including dismissal for lack of jurisdiction, de novo.
Frazer v. United States, 288 F.3d 1347, 1351 (Fed. Cir.
2002). We review factual conclusions for clear error. Bass
Enters. Prod. Co. v. United States, 381 F.3d 1360, 1365
(Fed. Cir. 2004).
                              I
     Sabree first argues that the Claims Court improperly
rejected his claim of equitable tolling under 28 U.S.C. §
2501. Section 2501 states that “[a] petition on the claim
of a person under legal disability . . . at the time the claim
accrues may be filed within three years after the disabil-
ity ceases.” In Goeway v. United States, 612 F.2d 539, 544
(Ct. Cl. 1979), our predecessor court held that “[o]nly a
serious impediment can qualify to suspend running of the
statute [of limitations]” under the “legal disability” provi-
sion of § 2501. As such, it said that the legal disability
provision “require[s] a mental derangement precluding a
person from comprehending rights which he would be
otherwise bound to understand” and that the disability
“must in some way prevent his comprehension of his legal
rights to military disability retirement pay, the necessity
of prosecuting them by timely suit, and/or cause him to
deliberately forego the filing of a timely suit to vindicate
his rights.” Id. at 545. Also, the court emphasized that
“[t]he burden of proving mental incapacity is on the
claimant.” Id. at 544.
   In Goeway, the plaintiff was diagnosed as obsessive
compulsive, depressed, and perhaps with “latent schizo-
5                                               SABREE   v. US


phrenia.” Id. at 543. The court found no legal disability
because “his active involvement in the years under con-
sideration in efforts to secure VA benefits for himself and
his family,” among other legal actions taken during that
time, “ma[d]e it abundantly clear that plaintiff was able
to understand [legal] complexities and was decidedly not
adverse to protecting his interests to the utmost.” Id. at
545. Here, the trial court found that “plaintiff completed
agency forms, applied for benefit increases with the VA,
cooperated with legal counsel during his administrative
proceedings, and drafted his own rebuttal statements, all
in the furtherance of his own interests.” Sabree v. United
States, No. 09-369C, slip. op. at 17 (Nov. 13, 2009). There-
fore, it concluded, Sabree did not carry his burden of
proving disability.
    We agree that Sabree has failed to provide evidence to
meet his burden to establish that a mental impairment
precluded him from comprehending his legal rights.
Sabree asserts that the activities relied on by the Claims
Court were not significant because he had assistance, but
he points to no specific evidence showing that his depres-
sion prevented him from understanding his legal rights
and pursuing his claim. Sabree points to the VA’s de-
scription of a 70 percent rating for severe depression,
which lists, in pertinent part, the following conditions:
    Occupational and social impairment, with defi-
    ciencies in most areas, such as work, school, fam-
    ily relations, judgment, thinking, or mood, due to
    symptoms such as: . . . near-continuous panic or
    depression affecting the ability to function inde-
    pendently, appropriately and effectively . . . [and]
    difficulty in adapting to stressful circumstances . .
    ..
SABREE   v. US                                          6


38 C.F.R. § 4.130. The VA examiner found that Sabree’s
“functioning occupationally and socially is seriously
impaired,” but he also found that Sabree’s “[m]emory is
intact” and that his “[j]udgment is fair.” Appellee’s App.
41. The examiner also determined that Sabree “displayed
no thought process disorder.” Id. The VA determination
does not support a finding that Sabree was suffering from
“a mental derangement precluding a person from compre-
hending rights which he would be otherwise bound to
understand.” Goeway, 612 F.2d at 545.
                            II
    Sabree also argues that he properly asserted a claim
under the APA and that the Army’s actions were arbi-
trary and capricious. However, it is well-established that
the Claims Court “lacks APA jurisdiction.” Martinez v.
United States, 333 F.3d 1295, 1313 (Fed. Cir. 2003). In
his reply brief, Sabree “concedes that the [Claims Court]
does not have jurisdiction regarding the Administrative
Procedure Act” but argues that the Claims Court should
have transferred the claim to the District of Columbia
Circuit under 28 U.S.C. § 1631. However, Sabree failed to
raise this argument in his principal brief, and the argu-
ment is waived. See, e.g., Amberman v. Shinseki, 570
F.3d 1377, 1381–82 (Fed. Cir. 2009); SmithKline Beecham
Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir.
2006).
                      AFFIRMED
                         COSTS
   No costs.
