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No. 15-536C 

(Filed: October 9, 2015)
OCT ' 9 2015

US. COURT OF

KEVIN J OPPY a/k/a CALVIN J OPPY,
FEDERAL CLAIMS

Plaintiff,
Pro Se Plaintiffs; Motion to Dismiss for
Lack of Subject Matter Jurisdiction;
RCFC l2(b)(1); Military Pay; 37 U.S.C.
§ 204; Statute of Limitations; 28 U.S.C.
§ 2501.

V.

THE UNITED STATES OF AMERICA,

Defendant.

vvvvvvvvvvv

Kevin Joppy a/k/a Calvin Joppy, Milton, FL, Plaintiff, pro se.

Douglas K. Mickie, Assistant Director, with whom were, Robert E. Kirschman, Jr. , Director,
Benjamin C. Mizer, Principal Deputy Assistant Attorney General, United States Department of
Justice, Washington, DC, for defendant.

OPINION AND ORDER
KAPLAN, Judge:

The plaintiff in this action, Kevin J oppy, alleges that he was unlawfully discharged from
the United States Navy and that his military record should be corrected to reﬂect a medical
disability retirement. Proceeding m g, he challenges an adverse decision by the Board for
Correction of Naval Records (BCNR) as arbitrary, capricious, and contrary to law, and seeks an
award of backpay and disability beneﬁts in addition to the correction of his records.

The case is before the Court on the government’s motion to dismiss for lack of subject
matter jurisdiction pursuant to Rule l2(b)(l) of the Rules of the Court of Federal Claims
(RCF C). For the reasons set forth below, the government’s motion is GRANTED and the
complaint is DISMISSED without prejudice.1

I Mr. J oppy has ﬁled a request to proceed in forma pauperis. To proceed in forma pauperis, a
plaintiff must submit an afﬁdavit that includes a list of all of their assets, a declaration that they
are unable to pay the fees or give the security for an attorney, and a statement of the nature of
their action and their belief that they are entitled to judgment. 28 U.S.C. 1915(a)(1). Here,
plaintiff satisﬁed these requirements, and the Court therefore grants his application to proceed in
forma pauperis for the limited purpose of dismissing the complaint.

BACKGROUND
1. Mr. Joppy’s Discharge from the Navy

Mr. J oppy served in the United States Navy from July 16, 1979, until March 13, 1981.
Compl. at 2, 9; Def.’s Mot. to Dismiss (“Def.’s Mot.”) A36, A46.2 He was stationed in Newport,

Rhode Island, and served on the USS Edson. Compl. at 2.

During his service, Mr. J oppy was involved in a series of verbal and physical altercations
with senior ofﬁcers. On February 14, 1980, Mr. J oppy was subject to non-judicial punishment
for assaulting a chief petty ofﬁcer, for disobedience of a lawful order, and for two assaults on
non-petty ofﬁcers. Def.’s Mot. A41, A51. On June 9, 1980, he was convicted by a summary
court martial for striking a petty ofﬁcer. Li. Finally, on September 4, 1980, he was convicted by
a summary court martial for disrespecting a superior commissioned ofﬁcer. LL

After these violations of the Uniform Code of Military Justice, Mr. J oppy was evaluated
by a psychiatrist at a Navy medical center on October 1, 1980, and again on January 29, 1981.
I_d_. A46—47; A52—53. Following his second evaluation, he was diagnosed with explosive
personality disorder. Li At the time, Mr. J oppy was awaiting a special court martial proceeding
for assaulting a chief petty ofﬁcer. As a result of his diagnosis, the Navy dropped the court
martial charges and administratively separated Mr. J oppy, ﬁnding him unsuitable for continued

service. 11. A27, A36.3
11. BCNR Decisions

On August 4, 2002, Mr. Joppy ﬁled a claim with the BCNR alleging that he was
misdiagnosed by the psychiatrist and requesting that his records be corrected to reﬂect a medical
discharge, which would afford him entitlement to disability pay and retirement beneﬁts. I_d. A31.
On April 2, 2003, the BCNR found insufﬁcient evidence to establish the existence of probable
material error or injustice and denied the claim. Li. A29. Among other things, the Board
reasoned that because “a personality disorder is not considered to be a disability under the laws
administered by the Department of the Navy,” and because Mr. Joppy had not “demonstrated
that [he was] unﬁt for service by reason of physical disability, the Board was unable to
recommend any corrective action.” I_d. A30.

 

 

 

2 “Compl.” refers to Mr. Joppy’s complaint ﬁled in this case. “Def.’s Motion to Dismiss” or
“Def.’s Mot.” refers to the government’s “Motion to Dismiss Pro Se Complaint,” and “A” cites
to pages in the appendix to the government’s Motion to Dismiss. “Pl.’s Res.” refers to Plaintiffs
“Brief In Opposition to Motion To Dismiss/Partial Summary Judgement.”

 

3 According to Mr. J oppy, the diagnosis of explosive personality disorder was inaccurate.
Compl. at 6—7. He recounts witnessing the death of his “friend and shipmate at the hands of a
killer mob in East Boston . . . changing his life forever.” BL at 7. The complaint suggests,
therefore, that Mr. J oppy was suffering from the effects of post-traumatic stress disorder, not a

personality disorder. I_d.

Mr. J oppy subsequently submitted a second application for correction of his military
records on April 14, 2014. Id. A6. As additional evidence in support of his claim, he directed
the BCNR to a report by the GAO which he alleged reveals a military “policy to give those about
to be discharged and [who] had psychological issues, to give them false evaluations . . . to reduce
any future beneﬁts they may claim.” Li. A24. On June 22, 2015, the BCNR again denied Mr.

J oppy’s claim, noting that his “history of violent misconduct . . . [was] consistent with the

diagnoses [sic] of explosive personality disorder.” Id. A2—4.

III. This Action

Mr. Joppy ﬁled a complaint in this Court on May 27, 2015, alleging that he was
wrongfully and involuntarily discharged from active duty in the Navy. Compl. at 3. He
contends that the administrative discharge did not comply with applicable Department of
Defense regulations, and that the psychological evaluation did not determine that his “disorder
was so severe that [his] ability to function in the military environment was signiﬁcantly
impaired.” I_d. at 4—5. He asks that the Court correct his records to reﬂect that he was medically
discharged, providing entitlement to medical and retirement beneﬁts, and seeks back pay and

retroactive retirement beneﬁts totaling $600,000. "Id, at 8.

On July 15, 2015, the government ﬁled a motion to dismiss the complaint for lack of
jurisdiction under RCFC 12(b)(1). It argues that Mr. J oppy’s claims are barred by the Tucker
Act’s six-year statute of limitations, 28 U.S.C. § 2501. Def.’s Mot. at 6. For the reasons set
forth below, the Court agrees, and therefore dismisses Mr. J oppy’s complaint without prejudice.

DISCUSSION

In ruling on a motion to dismiss, the Court assumes that all factual allegations are true
and construes all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 US.
232, 236 (1974) (abrogated on other grounds by Harlow V. Fitzgerald, 457 US. 800 (1982)). In
considering a motion to dismiss for lack of subject matter jurisdiction, the court may “inquire
into jurisdictional facts” to determine whether it has jurisdiction. Rocovich v. United States, 933
F.2d 991, 993 (Fed. Cir. 1991). The plaintiff bears the burden of establishing subject matter
jurisdiction by a preponderance of the evidence. Brandt v. United States, 710 F.3d 1369, 1373
(Fed. Cir. 2013). Pro E plaintiffs are held to “less stringent standards than formal pleadings
drafted by lawyers.” _Haines v. .Eggrgggg; 404 US. 519, 520 (1972). Nonetheless, even pr_o E
plaintiffs must persuade the Court that jurisdictional requirements have been met. Kelley V.
Sec’y, U.S. Dep’t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 1987).

 

Pursuant to the Tucker Act, the United States Court of Federal Claims has jurisdiction to
“render judgment upon 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. § 1491(a) (2006). The Tucker Act serves as a waiver of sovereign
immunity and a jurisdictional grant, but it does not create a substantive cause of action. J an’s_

Helicopter Serv., Inc. v. Fed. Aviation Admin, 525 F.3d 1299, 1306 (Fed. Cir. 2008). A

plaintiff, therefore, must establish that “a separate source of substantive law . . . creates the right

 

to money damages.” lg, (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005)
(en banc in relevant part)).

The Military Pay Act, 37 U.S.C. § 204, provides a separate source of substantive law that
creates a right to money damages. It “confers on an ofﬁcer the right to the pay of the rank he

was appointed to up until he is properly separated from the service.” Holley v. United States,
124 F.3d 1462, 1465 (Fed. Cir. 1997) (quoting Sanders v. United States, 594 F.2d 804, 810 (Ct.

C1. 1979) (en banc)). Accordingly, the Military Pay Act “provides for suit in [the Court of
Federal Claims] when the military, in Violation of the Constitution, a statute, or a regulation, has
denied military pay.” Antonellis v. United States, 723 F.3d 1328, 1331 (Fed. Cir. 2013) (quoting
Dysart v. United States, 369 F.3d 1303, 1315 (Fed. Cir. 2004)).

While the Military Pay Act supplies a basis for this Court’s exercise of jurisdiction under
the Tucker Act, the Tucker Act’s six-year statute of limitations states 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.” 28 U.S.C. § 2501. The
government argues that the six—year limitation period has been exceeded in this case and that,
therefore, the complaint must be dismissed. The government is correct.

A claim for unlawful discharge from the armed services ﬁrst accrues when the member is
discharged from active duty status. Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir.
2003) (en banc). Here, Mr. Joppy’s discharge from the Navy occurred in 1981. The complaint
in this Court was ﬁled more than three decades later, in 2015, well beyond the six-year
limitations period. This Court, accordingly, lacks jurisdiction to consider his discharge claim.4

Further, Mr. J oppy’s claim seeking revision of his military records to qualify him for
disability pay and beneﬁts is also barred by the statute of limitations. Claims regarding a service
member’s entitlement to retirement pay ﬁrst accrue when “the appropriate military board
either . . . denies the claim or refuses to hear it.” Chambers v. United States, 417 F.3d 1218,
1224 (Fed. Cir. 2005). The BCNR denied Mr. J oppy’s retirement pay claim on April 2, 2003,
Def.’s Mot. A29, and the complaint in this case was ﬁled more than twelve years later, on May
27, 2015. Although Mr. J oppy resubmitted his claim to the BCNR in 2014, the Federal Circuit
has made clear that claims accrue after a decision by the “ﬁrst statutorily authorized board that
hears or refuses to hear the claim.” Chambers, 417 F.3d, 1224. As a result, Mr. J oppy’s
disability retirement claim also falls outside the statute of limitations.

In his opposition to the government’s motion, Mr. J oppy argues that the six-year
limitations period should be equitably tolled. Pl.’s Res. at 3. But section 2501, which

4 In his opposition to the govemment’s motion, Mr. J oppy argues that his challenge to his
discharge was timely in light of the “constructive service doctrine.” P1.’s Res. at 7. Under that
doctrine, service members who have been illegally discharged are “deemed to have continued in

active service until their legal separation” for purposes of determining their entitlement to
backpay. E Christian v. United States, 337 F.3d 1338, 1347 (Fed. Cir. 2003). The constructive
service doctrine, however, is a “legal ﬁction,” i_d_., that has no bearing on the accrual of the statute

of limitations, which occurs at the time of the plaintiff’s actual discharge.

establishes the statute of limitations as a jurisdictional prerequisite for Tucker Act claims, “sets
an ‘absolute’ time limit for ﬁling suit in the Court of Federal Claims” that is not subject to
equitable tolling. F loorPro Inc. V. United States, 680 F.3d 1377, 1382 (Fed. Cir. 2012) (quoting
John R. Sand & Gravel Co. V. United States, 552 US. 130, 133 (2008)). Therefore, Mr. Joppy’s
request that the Court apply equitable tolling must be rejected.

 

Mr. J oppy ﬁlrther contends that the limitations period does not bar this action because the
government engaged in “fraud” and “misrepresentation” with respect to his claims. Pl.’s Res. at
3, 7, 11—13. He argues that although the Navy’s discharge policies with respect to individuals
diagnosed with personality disorders violated law and were allegedly being investigated by the
GAO, the Navy continued to follow those policies. Li. He states that, at the time he ﬁled his
complaint with the BCNR in 2002, he did not know that Department of Defense had been
unlawfully discharging members of the service and that he did not learn that the discharges were
unlawful until the media allegedly exposed the violations of law. 1; at 13.

The Court interprets this contention as one based on the established doctrine that the
accrual of a claim against the United States may be suspended, for purposes of 28 U.S.C. § 2501,
“until the claimant knew or should have known that the claim existed.” _Martinez v. United:
States, 333 F .3d at 1319. But “[t]he ‘accrual suspension’ rule is ‘strictly and narrowly
applied: . . . [The plaintiff] must either show that defendant has concealed its acts with the result
that plaintiff was unaware of their existence or it must show that its injury was ‘inherently
unknowable’ at the accrual date’.” Li. (alteration in original) (quoting Welcker v. United States,
752 F.2d 1577, 1580 (Fed. Cir. 1985)). Further, it is knowledge of the relevant facts, not of their
legal consequences, which determines the accrual date. Young v. United States, 529 F .3d 1380,
1385 (Fed. Cir. 2008) (citing United States V. Kubrick, 444 US. 111, 122 (1979) (“We are
unconvinced that for statute of limitations purposes a plaintiffs ignorance of his legal rights and
his ignorance of the fact of his injury or its cause should receive identical treatment.”)).

 

Here, Mr. J oppy has not shown that the government concealed its act of separating him
based on the personality disorder diagnosis, nor has he shown that his injury was “inherently
unknowable” at the accrual date. To the contrary, the record shows that Mr. J oppy was aware of
and expressed disagreement with his unsuitability designation at the time of his discharge.5 And
while he may not have understood or known of the legal theory upon which he now wishes to
challenge his separation, as noted, knowledge of applicable law does not affect a claim’s accrual

date.

5 As noted above, Mr. Joppy met a psychiatrist on October 1, 1980 and January 29, 1981. Def.’s
Mot. A41, A51. He was informed in writing about the Navy’s administrative discharge and
consulted with an attorney about the consequences of his discharge relating to his access to
veterans’ beneﬁts. Li. A44—45. He also received a notice recommending his administrative
discharge and the DD-214 discharge form. Li A43; A36. Thus, while the Court accepts at face
value Mr. J oppy’s representation that he was suffering from signiﬁcant stress at the time of his
discharge, Pl.’s Res. at 18, he does not claim (nor could he) that he was unaware of the fact of his
discharge when it occurred. And even if that were his claim, it is clear that he was well aware of
all relevant facts in 2002, when he ﬁled his ﬁrst record correction request with the BCNR.

CONCLUSION

For the reasons stated above, the Court GRANTS plaintiffs motion to proceed in forma
pauperis, GRANTS the government’s motion to dismiss, and DISMISSES plaintiff’s complaint
for lack of jurisdiction, without prejudice. The Clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

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