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                                                                                            FILED
                                                                                           f/AR 5       2014


JOHN VERNON SCHNELL,                                   No,13-840c.                     ,9;?#i,-"3Jo?fi.
                                                       (Filed: March 5,2014)
                 Plaintiff,
                                                       Motion to Dismiss for Lack of Subject
                                                       Matter Jurisdiction; RCFC 12(bX6);
                                                       Tucker Act Jurisdiction; 28 U.S.C. $
THE UNITED STATES OF AMERICA,                          1491; Statute of Limitations;28 U.S.C.
                                                       $ 2501; Military discharge
                Defendant.




John Vernon Schnel/, Roxboro, NC, Plaintiff,    pp   se.

Joseph E. Ashman,   Civil Division, United   States Department of Justice, Washington, DC,       for
defendant.

                                OPINION AND ORDER
KAPLAN, Judge.

       The above-captioned case is before the Court on the govemment's motion to dismiss.

The plaintiff, John Vernon Schnell, appearing p1s se, is a former active duty seaman in the Navy.

He alleges that he was adversely treated by his superiors in retaliation for his complaints     of

sexual harassment and his criticism of safety procedwes.        Mr. Schnell further contends that the

Navy's failure to investigate his complaints resulted in his discharge from the Navy at     a   lower

rank. Mr. Schnell alleges that he is still suffering adverse emotional and psychological effects

from his alleged mistreatment and that the Navy has failed to implement measures to address the

issues that led to his discharge.   Mr. Schnell requests $9,707,534.21 in monetary damages.

       The govemment contends that the complaint should be dismissed for lack ofsubject

matter jurisdiction pursuant to Rule 12(b)(1)   ofthe Rules of the Court ofFederal Claims
('RCFC') because Mr. Schnell failed to raise his claims within six years of his discharge from

the military and identify a money-mandating statute upon which this Court may exercise

jurisdiction. It also contends that to the extent that Mr. Schnell is alleging   a   claim for intentional

infliction of emotional distress. that claim would sound in tort and hence would be outside ofthis

Court's Tucker Act jurisdiction.

        For the reasons set forth below, the government's motion is granted.

                                          BACKGROUND

        John Vemon Schnell served on active duty as a seaman in the Navy for several

nonconsecutive terms in the 1980s and 1990s. Def.'s Mot. to Dismiss 1. He was given a general

discharge under honorable conditions on     April 14,1997. Id. Mr. Schnell       alleges that during his

time in the Navy, he was sexually harassed and punished for bringing safety concems to the

attention of his superiors. Compl. 4-1 1.

        In December 2010, Mr. Schnell submitted an Application for Correction of Military

Records to the Board for the Correction     ofNaval Records (.'BCNR'), seeking a change in his

discharge status, repayment of monies, reinstatement ofrank, and the granting of retirement.

Def.'s Mot. to Dismiss 1-2. The BCNR denied Mr. Schnell's application in September 201 1 . Id.

at2.

        Thereafter, Mr. Schnell appealed the BCNR decision in district court.          Id. In his

complaint before the district court, Mr. Schnell also raised claims for reliefunder the equal

protection clause relating to the alleged incidents of sexual harassment and retaliation aboard

Navy vessels. Def.'s Mot. to Dismiss App. at 6. On the govemment's motion, the magistrate

judge assigned to the case recommended that the case be dismissed without prejudice to allow

Mr. Schnell to pursue his improper discharge claim in the Court of Federal Claims. Def.'s Mot.
to Dismiss 2. The district court adopted the magistrate's recommendation and denied Mr

Schnell's subsequent motion to transfer the case to the Court ofFederal Claims based on its

conclusion that Mr. Schnell's claim was most likely barred by the Tucker Act's six-year statute

of limitations. Def.'s Mot. to Dismiss App. at     I   (Schnell v. Panetta, No. 1:12CV679 (M.D.N.C.

Sept.   30,2013). Following the district court's decision, Mr, Schnell brought the instant suit in

this Court.

                                             DISCUSSION

         The United States Court of Federal Claims is a court of limited jurisdiction that, prrsuant

to the Tucker Act, may hear "any claim against the united states founded either upon the

constitution, or any Act ofcongress or any regulation ofan 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. $ I a91(aX    1)   (2006). The Tucker Act serves   as a   waiver

ofsovereign immunity and ajurisdictional grant, but it does not create a substantive cause of

action. Jan'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."      Id. (quoting Fisher v. united states,402F.td116'..,1172(Fed,.

Cir. 2005) (en banc in relevant part)).

         In ruling on a motion to dismiss, the Court assumes all undisputed factual allegations to

be true and construes   all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416

u.s-232,236 (1974), abrogated on other qrounds by Harlow v. Fitzeerald,45T u.s. g00 (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.2d991,993 (Fed.     cir.   1991). The plaintiff bears the burden of establishing subject maner
jurisdiction by a preponderance ofthe evidence. Brandtv. UnitedStates, Tl0 F.3d 1369,1373

(Fed.   cir.2013).   Pro se plaintiffs are held to "less stringent standards than formal pleadings

drafted by lawyers." Haines v. Kemer,404 U.S. 519,520 (1972). Nonetheless, even p1q 99

plaintiffs must persuade the court that jurisdictional requirements have been met. Bemard v.

United States, 59 Fed. Cl.     497   ,499 (2004), affd, 98 F. App,x 860 (Fed. Cir. 2004).

          In this case, plaintiffhas failed to establish that his claims are within the jurisdiction of

this court. Under28       u.s.c.    g 2501 (2006), the Tucker   Act jurisdiction ofthe court ofFederal

claims is limited to claims "filed within six years after such claim first accrues." Martinez v.

United States, 333 F.3d 1295,1304 (Fed. Cir. 2003). The six-year limitations period is

jurisdictional in nature because it is a condition of the govemment's waiver of sovereign

immunity. Id. at    13   16. consequently, the statute of limitations is strictly construed. John R.

Sand    & Gravel Co. v. United States,552 U.S. 130, 133-34 (2008).

          A claim against the govemment accrues "when all the events have occurred which fix the

liability ofthe government and entitle the claimant to institute an action." Floorpro. Inc. v.

united states, 680 F.3d      1377   , 1381 (Fed. cir. 2012) (quoting coodrich v. united states, 434

F   .3d, 1329, 1333 (Fed.   cir. 2006)); Japanese war Notes claimants Assoc. v. united         States, 373

F.2d356,358 (Ct. Cl. 1967). The plaintiffneed not have actual knowledge ofall the relevant

facts for the statute of limitations to start running. Floor pro. Inc., 680 F.3d at l3g   1.



          The gravamen of Mr. Schnell's complaint appears to consist of a claim for reinstatement,

back pay, and benefits lost in connection with his discharge from military service.         A claim for
back pay based on a service member's separation from active duty accnres at the time of his or

her discharge. See Martinez, 333 F.3d at 1304. Mr. Schnell's claim, accordingly, accrued on

April 14, 1997 (the date ofhis discharge),      and the six-year statute of limitations, 2g   U.s.c.   0
2501, began to run on that date. Mr. Schnell's complaint was filed in this Court on October 28,

2013, a decade after the limitations period had expired. As a result, the Court lacks subject

matter jurisdiction to consider Mr. Schnell's claim for reinstatement, back pay, and benefits lost

arising from his general discharge under honorable conditions. See. e.s., white v. United states,

101 Fed. Cl. 673, 677 (201 1) (court lacked   jurisdiction where plaintiff   s   claim was filed 22 yearc

after plaintiff s discharge from the Navy); chisolm v. United states, 82 Fed.        cl.   185, 19s (2008)

(court lacks jurisdiction where plaintiff failed to bring claim within six years ofdischarge from

the Army).

         In addition to being time-baned, Mr. Schnell's other claims for damages are, in any

event, also beyond the jurisdiction   ofthe court. Mr. schnell's claim for damages for mental

anguish can best be analogized to a claim for intentional infliction of emotional distress. This

court lacks jurisdiction over such claims because they "soun[d] in tort." 28 u.s.c. $ la91(a)(1);

see also 28   U.S.C. $ 1346(b) (2006) (district courts have exclusive jurisdiction under the Federal

Tort claims Act (FTCA) to hear tort claims against the United States); wood v. united states,

961 F.2d195,197 (Fed.      Cir. 1992). Mr. Schnell also requests that damages be awarded in order

to implement his plans to, among other things, improve the Navy's leadership, and implement

new safety protocols, new personnel procedures, and sexual harassment training. compl. App.              1



at 1-2. Even ifthese claims were not time-barred, the court does not have jurisdiction to

entertain them because Mr. Schnell has not identified a money-mandating statute that supports an

award of damages for these purposes. See Rick's Mushroom serv.. Inc. v. united States, 521

F.3d 1338, 1343 (Fed. cir. 2008) ("Plaintiffmust look beyond the Tucker Act to identifi a

substantive source oflaw that creates the right ofrecovery ofmoney damages against the United

States.").
                                        CONCLUSION

       On the basis of the foregoing, the government's motion to dismiss is   GRANTED, and

the Clerk is directed to dismiss Plaintiff s complaint without prejudice pursuant to RCFC

l2(bx1).


       IT IS SO ORDERED.


                                                       rJ--      '/'1*_
                                                 ELAINE D. KAPLAN
