Fowler v. United States

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

NOT FOR PUBLICATION

______________________________________

)

GERRY W. FOWLER, )

)

Plaintiff, ) No. 23-2095

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v. ) Filed: November 18, 2025

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THE UNITED STATES, )

)

Defendant. )

______________________________________ )

MEMORANDUM OPINION AND ORDER

Pro se plaintiff Gerry W. Fowler, a former member of the United States Navy, asks this

Court to vacate its judgment dismissing this case for lack of jurisdiction. Mr. Fowler contends that

the Government improperly concealed a 1997 reclassification evaluation (“1997 evaluation”) and

thus prevented him from fully and fairly litigating his military pay claim. For the reasons stated

below, the Court DENIES Mr. Fowler’s Motion to Vacate the Final Judgment under Rule 60(b)(3)

of the Rules of the United States Court of Federal Claims (“RCFC”).

I. BACKGROUND

The Court assumes the reader’s familiarity with the factual background of this case as

detailed in the Court’s January 6, 2025 Opinion and Order granting the Government’s Motion to

Dismiss. See Op. and Order Dismissing Case at 1–5, ECF No. 11. There, the Court held that Mr.

Fowler’s claim for military disability retirement pay accrued in 1992, when Mr. Fowler separated

from the Navy after accepting the preliminary findings of his informal Physical Evaluation Board

(“PEB”). Id. at 8. Because more than six years elapsed between 1992 and the initiation of his

lawsuit on December 8, 2023, the Court determined that Mr. Fowler’s claim was barred by the

statute of limitations provided in 28 U.S.C. § 2501. Id. at 7.

On January 27, 2025, Mr. Fowler filed a Motion for Reconsideration under RCFC 59. See

Pl.’s Rule 59 Mot. at 1, ECF No. 16.1 In his motion, Mr. Fowler argued that the Court made

several factual and legal errors and requested leave to amend his Complaint. See id. at 4, 8. Mr.

Fowler also reiterated previous arguments and made new arguments about post-separation events

that, in his view, should have reset the statute of limitations. See id. at 7–8; Pl.’s Reply in Supp.

of Rule 59 Mot. at 3–6, ECF No. 23. One such argument was based on the 1997 evaluation, which

Mr. Fowler attached to his reply brief. See ECF No. 23 at 3–5, 16–19. On February 10, 2025, the

Government filed its response to Mr. Fowler’s motion, arguing that Mr. Fowler failed to identify

any factual or legal errors and that Mr. Fowler’s request to file an amended pleading was futile.

See Gov’t’s Resp. to Pl.’s Rule 59 Mot. at 1, 10, ECF No. 18. The Court denied Mr. Fowler’s

Motion for Reconsideration on July 2, 2025, finding that he failed to satisfy his burden to show

factual or legal errors in the Court’s decision and that any amendment of the Complaint would be

futile because Mr. Fowler’s claim was still time barred even considering his new allegations.

Mem. Op. and Order Den. Mot. for Recons. at 4, ECF No. 24. In particular, the Court stated:

“[E]ven if the [Board for Correction of Naval Records’ (“BCNR”)] 1997 or 2001 decisions cited

in Mr. Fowler’s Reply reset the statute of limitations because the Board was presented with new

evidence, [i.e., the 1997 evaluation], those decisions were made more than six years before Mr.

Fowler filed this lawsuit, and thus the Court still does not have jurisdiction.” Id. at 9.

Subsequently, on August 27, 2025, Mr. Fowler filed a Motion to Vacate the Final

Judgment, citing the Government’s alleged concealment of the 1997 evaluation. Pl.’s Mot. to

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Mr. Fowler’s Motion for Reconsideration, Reply to the Motion for Reconsideration, and

Motion to Vacate were filed under seal to protect personally identifiable information (“PII”)

contained therein. Because this opinion does not disclose PII, the Court has determined that the

information quoted or referred to from Mr. Fowler’s briefs and attached exhibits may be publicly

disclosed.

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Vacate Final J. at 2, ECF No. 27. Mr. Fowler obtained the 1997 evaluation in February 2025

through a Freedom of Information Act (“FOIA”) request. See id. at 2. The 1997 evaluation

contains the findings of a doctor from the Department of Veterans Affairs (“VA”) who examined

Mr. Fowler on August 14, 1997, for purposes of a Board of Veterans’ Appeals remand, see id. at

15, to determine whether Mr. Fowler’s “mental condition was aggravated and progressed during

and because of his inactive status,” id. at 16. According to Mr. Fowler, the report of this evaluation

could have helped him overcome the six-year statute of limitations, which served as the basis for

the Court’s dismissal of his claim. See id. at 4. Mr. Fowler contends that the Government’s alleged

concealment of this evidence constitutes “classic extrinsic fraud warranting vacatur under Rule

60(b)(3).” Id. at 5 (citing Assmann v. Fleming, 159 F.2d 332, 334 (8th Cir. 1947)). In addition to

the allegedly concealed evaluation, Mr. Fowler offers as proof of extrinsic fraud the Government’s

purported misapplication of Department of Defense Instruction (“DoDI”) 1332.18, which sets

forth requirements for line of duty determinations.2 Id. at 3; see id. at 8 (arguing “Defendant

consistently misrepresented . . . [DoDI 1332.18]”). Mr. Fowler argues that these instances of

extrinsic fraud “deprived [him] of a full and fair opportunity to litigate timeliness and entitlement,”

and thus are sufficient grounds for relief from judgment under Rule 60(b)(3). Id.

The Government filed its opposition to Mr. Fowler’s Motion to Vacate on September 9,

2025. Gov’t’s Resp. in Opp’n to Pl.’s Mot. to Vacate, ECF No. 28. The Government argues that

Mr. Fowler has “failed to demonstrate by clear and convincing evidence that any fraud or

misconduct took place during the litigation that prevented him from receiving a fair hearing.” Id.

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Mr. Fowler attaches as an exhibit to his motion Section 7.6 of DoDI 1332.18, which

establishes the requirements for determining that a disability was incurred in the line of duty, and

a portion of Section 7.7, which includes the evidentiary standards for determining compensability

of unfitting conditions. See ECF No. 27 at 24–27.

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at 1. Specifically, the Government argues that the 1997 evaluation “does not in any way impact

the accrual of [Mr. Fowler’s] claim” and that he fails to “alleg[e] any fraud in the course of this

present litigation, but rather [] is attempting to re-litigate the merits of his case.” Id. at 2.

Mr. Fowler filed his reply on September 12, 2025, contesting the Government’s position

that “Rule 60(b)(3) applies only to misconduct during this litigation,” and reiterating his argument

that the concealment of the 1997 evaluation constitutes extrinsic fraud that suspends accrual of the

statute of limitations. Pl.’s Reply to Def.’s Rule 60(b)(3) Resp. at 2, ECF No. 29 (emphasis in

original). The motion is now ripe for decision.

II. LEGAL STANDARDS

A. Jurisdiction of the Court of Federal Claims

The Court of Federal Claims is a court of limited jurisdiction. Massie v. United States, 226

F.3d 1318, 1321 (Fed. Cir. 2000). Pursuant to the Tucker Act, the Court’s jurisdiction extends

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. § 1491(a)(1). The Tucker Act, however, is “only a jurisdictional statute; it does not

create any substantive right enforceable against the United States for money damages.” United

States v. Testan, 424 U.S. 392, 398 (1976). Thus, to establish jurisdiction, a plaintiff must identify

a separate source of law that “can fairly be interpreted as mandating compensation by the Federal

Government.” United States v. Navajo Nation, 556 U.S. 287, 290 (2009) (quoting Testan, 424

U.S. at 400). Here, the Court has jurisdiction under 10 U.S.C. § 1201, which governs disability

payments to retired servicemembers. See Chambers v. United States, 417 F.3d 1218, 1223 (Fed.

Cir. 2005) (finding that 10 U.S.C. § 1201 is a money-mandating statute).

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Like all claims filed in this Court, a claim for military disability retirement pay is subject

to the statute of limitations found in 28 U.S.C. § 2501. As such, the claim must be brought within

six years of its accrual. 28 U.S.C. § 2501; Chambers, 417 F.3d at 1223. The limitations period is

jurisdictional and not subject to equitable tolling. See John R. Sand & Gravel Co. v. United States,

552 U.S. 130, 133–34 (2008); Young v. United States, 529 F.3d 1380, 1384 (Fed. Cir. 2008).

The United States Court of Appeals for the Federal Circuit has recognized that certain

circumstances can suspend accrual of a claim under § 2501. See Holmes v. United States, 657

F.3d 1303, 1317 (Fed. Cir. 2011). The applicability of the accrual suspension rule is “distinct from

the question whether equitable tolling is available under [§ 2501].” Martinez v. United States, 333

F.3d 1295, 1319 (Fed. Cir. 2003). Under the accrual suspension rule, “the accrual of a claim

against the United States will in some situations be suspended when an accrual date has been

ascertained, but the plaintiff does not know of the claim.” Ingrum v. United States, 560 F.3d 1311,

1314 (Fed. Cir. 2009). To successfully invoke the accrual suspension rule, the plaintiff “must

either show that the 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.”

Holmes, 657 F.3d at 1317 (quoting Young, 529 F.3d at 1384). Accordingly, the focus is on the

“existence of [the] injury and the acts giving rise to [the] claim,” not on the later revelation of

evidence that “provided [the plaintiff] with additional ammunition with which to pursue the

claim.” Martinez, 333 F.3d at 1319.

B. Standard of Review for Rule 60(b)(3) Motion

Pursuant to Rule 60(b)(3), a party may ask the Court for relief “from a final judgment,

order, or proceeding for . . . fraud (whether previously called intrinsic or extrinsic),

misrepresentation, or misconduct by an opposing party.” RCFC 60(b)(3). “To succeed on a

motion under RCFC 60(b)(3), the ‘movant must demonstrate fraud, misrepresentation, or

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misconduct by clear and convincing evidence.’” Wagstaff v. United States, 118 Fed. Cl. 172, 176

(2014) (quoting Madison Servs., Inc. v. United States, 94 Fed. Cl. 501, 507 (2010)), aff’d, 595 F.

App’x 975 (Fed. Cir. 2014). Accordingly, “unsubstantiated innuendo and uncorroborated

inferences” are not enough. Madison Servs., 94 Fed. Cl. at 507. In addition, the fraud,

misrepresentation, or misconduct must have “prevented the movant from receiving a fair hearing

or trial.” Griffin v. United States, 96 Fed. Cl. 1, 9 (2010) (quoting Madison Servs., 94 Fed. Cl. at

507). A Rule 60(b)(3) “motion for relief is . . . ‘entrusted to the discretion of the [c]ourt’” and

“may be granted only in extraordinary circumstances.” Wagstaff, 118 Fed. Cl. at 175 (quoting

TDM Am., LLC v. United States, 100 Fed. Cl. 485, 490 (2011)). To obtain relief, the movant “must

provide a sufficient ‘reason to believe that vacating the judgment will not be an empty exercise or

a futile gesture.’” Dobyns v. United States, 915 F.3d 733, 738 (Fed. Cir. 2019) (quoting Murray v.

District of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995)).

III. DISCUSSION

Mr. Fowler’s Motion to Vacate fails to provide a valid basis to disturb the Court’s judgment

dismissing his case. Firstly, Mr. Fowler does not demonstrate by clear and convincing evidence

that the Government’s failure to disclose the 1997 evaluation to Mr. Fowler prior to his February

2025 FOIA request constitutes fraud, misrepresentation, or misconduct or that he was deprived of

a fair opportunity to oppose dismissal. And secondly, vacating the Court’s judgment would be a

futile gesture because the accrual suspension rule fails to overcome the bar imposed by the statute

of limitations, even considering any new evidence contained in the 1997 evaluation.

Though the Court remains sympathetic to Mr. Fowler’s mental health condition and his

difficulties navigating the disability evaluation system, it is required to “strictly observe[]”

Congress’ decision to impose a statute of limitations. Smith v. United States, 158 Fed. Cl. 520,

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528 (2022) (quoting Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287

(1983)). In dismissing Mr. Fowler’s case, the Court adhered to this obligation.

A. Mr. Fowler Fails to Present Any Evidence of Fraud or Concealment, Or Denial

of a Fair Hearing.

Mr. Fowler argues that vacatur of judgment is proper because the Government fraudulently

concealed the 1997 evaluation. ECF No. 27 at 5. This claim fails because Mr. Fowler does not

demonstrate by clear and convincing evidence that the Government engaged in fraud,

misrepresentation, or misconduct. Fraud under Rule 60(b)(3), as informed by the general

definition of the term, “is the knowing misrepresentation of a material fact, or concealment of the

same when there is a duty to disclose, done to induce another to act to his or her detriment.” Info-

Hold, Inc. v. Sound Merch., Inc., 538 F.3d 448, 456 (6th Cir. 2008) (citing Black’s Law Dictionary

685 (8th ed. 2004)).3 Here, Mr. Fowler provides no evidence that the Government had a duty to

sua sponte disclose the 1997 evaluation to him. See, e.g., ECF No. 27 at 2 (arguing the

Government improperly “concealed” the 1997 evaluation without citing to a duty to disclose). Nor

does he provide evidence that the Government refused to disclose the 1997 evaluation, or denied

its existence, in response to any disclosure request of Mr. Fowler. Accordingly, Mr. Fowler has

not established fraud or concealment by clear and convincing evidence. See Info-Hold, 538 F.3d

at 456; see also Madison Servs., 94 Fed. Cl. at 507 (a motion to vacate requires more than

“unsubstantiated innuendo and uncorroborated inferences”).

Additionally, as the Government correctly argues, a Rule 60(b)(3) motion is focused on

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Because Rule 60(b) of the RCFC and Rule 60(b) of the Federal Rules of Civil Procedure

(“FRCP”) are largely identical, this Court looks to case law on FRCP 60(b) to interpret RCFC

60(b). Curtis v. United States, 61 Fed. Cl. 511, 512 n.2 (2004) (citing Info. Sys. & Networks Corp.

v. United States, 994 F.2d 792, 794–95 & 794 n.3 (Fed. Cir. 1993)).

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fraud that prevented full and fair litigation in the case at hand.4 See Madison Servs., 94 Fed. Cl. at

507; c.f. Carlisle v. United States, 66 Fed. Cl. 627, 629–30 (2005) (finding that “misrepresentation”

related to an Army Board for Correction of Military Records decision does not provide proper

grounds for relief in the Court of Federal Claims under Rule 60(b)(3)). As noted above, the Court

dismissed Mr. Fowler’s claim pursuant to the limitations period included in 28 U.S.C. § 2501 after

full briefing on the Government’s Motion to Dismiss. Therefore, Mr. Fowler must demonstrate

that any alleged fraud or concealment by the Government prevented him from fully and fairly

litigating the statute of limitations issue in this case. He cannot do so.

The Court already addressed the impact (or lack of impact) of the 1997 evaluation on the

statute of limitations in its Order and Opinion denying Plaintiff’s Motion for Reconsideration. Mr.

Fowler’s reply brief attached a copy of the evaluation, which he apparently received days earlier

in response to his FOIA request. See ECF No. 23 at 15–19. In its decision, the Court held that

even if the BCNR’s review of the 1997 evaluation reset the Court’s statute of limitations, it does

not change the conclusion that Mr. Fowler’s claim in this Court is time barred. See ECF No. 24 at

9. As a result, Mr. Fowler fails to show that any fraud or concealment on the part of the

Government (which he has not shown) “materially affected [his] ability to present the case.” ECF

No. 29 at 5 (quoting Anderson v. Cryovac, Inc., 862 F.2d 910, 924 (1st Cir. 1988)).

To the extent Mr. Fowler argues that the Government fraudulently misrepresented DoDI

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In his reply, Mr. Fowler says the Government is “incorrect” to contend that “Rule 60(b)(3)

applies only to misconduct during this litigation.” ECF No. 29 at 2 (emphasis in original). As

support, Mr. Fowler cites United States v. Throckmorton, 98 U.S. 61, 65–66 (1878), Hazel-Atlas

Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 245–46 (1944), and Griffin v. United States, 96

Fed. Cl. 1, 9 (2010). These opinions, however, merely support Mr. Fowler’s argument that

extrinsic fraud can constitute a basis for granting relief from judgment. They say nothing to

contravene the conclusion that the Rule 60(b)(3) standard focuses on extrinsic fraud in the

proceedings before the court in which the motion is filed, rather than any separate proceedings

(like the earlier BCNR proceedings in the instant case).

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1332.18, see ECF No. 27 at 8, this Court again finds that he has failed to meet his burden of proof.

Nowhere in his motion does Mr. Fowler present evidence that the Government misrepresented

DoDI 1332.18 in this litigation, nor does he present evidence that any such misrepresentation

prevented a full and fair hearing on the separate statute of limitations issue raised in the

Government’s dismissal motion. Rather, it appears that Mr. Fowler’s true complaint is with the

BCNR’s application of DoDI 1332.18 when reviewing his claim for entitlement to disability

retirement. See id. at 3. But such objection presents a merits argument challenging the underlying

BCNR decisions; it does not constitute a basis for vacating the Court’s judgment dismissing this

case for lack of jurisdiction.

Indeed, much of Mr. Fowler’s merits-based argument appears to revolve around his

disagreement with the BCNR’s refusal to grant him disability retirement and his belief that the

1997 evaluation demonstrates the impropriety of this refusal. See, e.g., id. at 2 (“Had the Board

disclosed [the 1997 evaluation], Plaintiff could have asserted then (as he is asserting now) that the

1997 document counts as ‘new and material evidence.’”); id. at 3 (arguing that the 1997 evaluation

“shows that the Board constantly misapplied Department of Defense Directives in its decision-

making”); id. at 9 (“Had the BCNR . . . disclosed [the 1997 evaluation] . . . Plaintiff would (or

should) have received his retirement . . . .”); ECF No. 29 at 6 (“The 1997 VA report—explicitly

linking Plaintiff’s mental health conditions to service—was exactly the kind of material evidence

that could have changed the course of proceedings had it been disclosed timely.”). But whether

the 1997 evaluation would have allowed Mr. Fowler to assert additional arguments or evidence to

the BCNR in support of his record correction request is not the question before the Court for

purposes of evaluating Mr. Fowler’s Rule 60(b)(3) Motion. And because the Court lacks

jurisdiction by operation of the statute of limitations, this Court is unable to rule on such merits-

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related issues.

B. The 1997 Evaluation Does Not Help Mr. Fowler Overcome the Statute of

Limitations.

Aside from the Rule 60(b)(3) standard, Mr. Fowler appears to claim that the Government’s

fraudulent concealment of the 1997 evaluation triggers the accrual suspension rule, thus obviating

the basis for the Court’s dismissal of his claim. See ECF No. 29 at 4 (“[W]here fraud conceals the

very evidence needed to pursue a claim, accrual is tolled until discovery.”); id. (“Fraudulent

concealment of a cause of action tolls the running of the statute until the party injured discovers

the fraud or by reasonable diligence could have discovered it.” (quoting Holmberg v. Armbrecht,

327 U.S. 392, 397 (1946))). According to Mr. Fowler, had he known about the 1997 evaluation at

the time he filed this action, he could have used it to “overcome the six-year limitation rule back

then.” ECF No. 27 at 2–4. This argument is unavailing.

Even assuming Mr. Fowler was not aware of the contents of the 1997 evaluation until he

obtained the evaluation via his FOIA request, that does not mean Mr. Fowler lacked knowledge

that he had a military disability retirement claim against the Government. Rather, he would have

simply been unaware of evidence he could have used to bolster his claim. This is not a sufficient

basis upon which to invoke the accrual suspension rule. See Martinez, 333 F.3d at 1319 (denying

a motion to vacate because “[n]othing about [the new evidence] disclosed the existence of a claim

of which [the plaintiff] was previously unaware”). Because the evaluation merely serves to

potentially strengthen Mr. Fowler’s claim to disability retirement pay, not reveal its existence

altogether, the accrual suspension rule is inapplicable.

This Court previously addressed the applicability of the accrual suspension rule in its

Opinion and Order dismissing Mr. Fowler’s case. See ECF No. 11 at 11–12. As the Court noted,

“Mr. Fowler does not allege that he was unaware of his schizophrenia diagnosis or that his

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condition was inherently unknowable.” Id. at 11. Indeed, Mr. Fowler’s own Complaint details his

schizophrenia diagnosis and treatment, which were also specifically addressed by the PEB’s 1991

findings and the 1995 BCNR decision. Id. The 1997 evaluation report does nothing to change

this analysis. Instead, it remains true that “there is sufficient evidence to show that Mr. Fowler

was aware of his ability to pursue a claim for disability retirement pay in this Court as far back as

1992 (or at the latest 1995), and the accrual suspension rule therefore does not apply.” Id. at 12.

Mr. Fowler argues that he originally did not know of and did not assert the argument that

he was entitled to disability retirement pay because his disability was incurred during his military

service. See ECF No. 29 at 5 (“Plaintiff did not know and has never asserted Service Incurrence,

but because of [the 1997 evaluation] and what was contained within, now Plaintiff is asserting

Service Connection and/or Service Incurrence . . . .” (emphasis in original)). Even so, arguing that

the 1997 evaluation supports the contention that his disability was service incurred does not

provide Mr. Fowler with a new claim. The most it can do is provide further evidence to support a

required element of Mr. Fowler’s pre-existing claim. Under 10 U.S.C. § 1201(b):

A service member is entitled to medical retirement and periodic disability pay if his

disability (1) “is of a permanent nature and stable,” (2) “is not the result of [his]

intentional misconduct or willful neglect, and was not incurred during a period of

unauthorized absence,” and, for those with fewer than 20 years of service, (3) “is

at least 30 percent” and either was “not noted” when the member entered active

duty, is the “proximate result of performing active duty,” or was “incurred in the

line of duty.”

Mazarji v. United States, 164 Fed. Cl. 298, 303 (2023) (quoting 10 U.S.C. § 1201(b)). Mr.

Fowler’s affidavit also appears to recognize this distinction: “If Plaintiff had known this

information existed, or was provided with this information, then the Plaintiff could have better

asserted his claims for a change in disability status . . . .” ECF No. 27 at 35 (emphasis added).

Although the Court understands Mr. Fowler’s frustration that he could not “better assert[] his

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claims,” id., in the earlier proceedings before the BCNR, it is not a sufficient basis upon which to

invoke the accrual suspension rule.

As a result, even if the Court found that the Government fraudulently concealed the 1997

evaluation, such fraud does not provide a basis for relief under Rule 60(b)(3). See Williams v.

United States, No. 24-996C, 2024 WL 5103186, at *2 (Fed. Cl. Dec. 13, 2024) (holding a court

must decline to grant relief from judgment where “the substantive allegations in [the plaintiff’s]

complaint . . . are outside this Court’s jurisdiction”); Orient Overseas Container Line (UK) Ltd. v.

United States, 52 Fed. Cl. 805, 810 (2002) (holding that if the plaintiff “does not state a meritorious

cause of action, court action is futile”). Because the 1997 evaluation fails to help Mr. Fowler

overcome the jurisdictional bar imposed by the six-year statute of limitations, granting Mr.

Fowler’s Motion to Vacate would be futile.

IV. CONCLUSION

For the foregoing reasons, Mr. Fowler’s Rule 60(b)(3) Motion (ECF No. 27) is DENIED.

SO ORDERED.

Dated: November 18, 2025 /s/ Kathryn C. Davis

KATHRYN C. DAVIS

Judge

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