Jaime L. Feliciano v. United States

In the United States Court of Federal Claims

No. 13-440 C

(Filed: January 27, 2014)

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JAIME L. FELICIANO, *

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Plaintiff, * Military Back Pay and Disability

* Benefits Claim; Statute of

v. * Limitations; Rejection or “Refusal

* to Hear” by PEB; Accrual of

THE UNITED STATES, * Cause of Action

*

Defendant. *

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Jason Ellis Perry, Cheshire, CT, for Plaintiff.

Alex P. Hontos, Civil Division, United States Department of Justice, Washington, D.C.,

for Defendant.

ORDER AND OPINION

Damich, Judge:

In this action, Plaintiff seeks military back pay and allowances in challenging the

non-judicial punishment (“NJP”) that led to her discharge from the United States Marine

Corps as well as disability benefits as a result of an injury she sustained in basic training.

Defendant has moved instead to dismiss Plaintiff’s complaint for lack of subject matter

jurisdiction, on the grounds that both of her claims are barred by this Court’s applicable

six-year statute of limitations.

Because the Court finds that Plaintiff’s claims accrued more than six years prior

to the filing of her complaint, it is jurisdictionally obliged to grant Defendant’s motion

and to dismiss her claims.

I. Background

Plaintiff, Ms. Jaime L. Feliciano, enlisted in the United States Marine Corps on

August 26, 2002, and obtained the rank of Lance Corporal (E3). Compl. ¶ 6. She was

discharged on September 24, 2004. Compl. ¶¶ 6, 23.

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Ms. Feliciana avers that on September 25, 2002, during recruit combat training,

she fell from an obstacle course tower and was knocked unconscious. Compl. ¶ 6. She

asserts that she was diagnosed with a concussion “as a result of traumatic brain injury”

and that she later developed migraines, syncopal episodes, and dementia. Id. She alleges

that her medical issues persisted into 2003, after having reported to duty station in

Okinawa, Japan. Id. ¶ 7. In July 2003, she was medically evacuated from Japan to Naval

Medical Center, San Diego, California, for treatment, medication, and injury

management. Id. ¶ 8. She was placed on limited duty upon return to her duty station in

Japan. In December 2003, she asserts she was counseled by her command for deficiency

in performance, including in particular an inability, which she attributes to her migraines,

dizziness, and fainting, to participate in various exercises, conditioning hikes, and field

duty. Id. ¶ 9.

In February 2004, military police investigated the alleged theft of Ms. Feliciano’s

prescription medication by a fellow Marine. Id. ¶ 10. The accused admitted the theft and

that he had shared the medications with a roommate. The roommate required medical

intervention for overdosing. Id. The accused subsequently recanted his admission and

claimed that Ms. Feliciano had given him the medication. Id.

Ms. Feliciano’s own medical issues continued. On March 3, 2004, the Neurology

Department at Naval Hospital Okinawa notified her command that she was not

responding well to treatment for her loss of consciousness/syncopal episodes and

migraines and that a medical board had been initiated. Id. ¶ 11. On March 25, 2004, she

was afforded preliminary counseling regarding disability processing and a Medical

Evaluation Board (“MEB”) referred her medical record to a Physical Evaluation Board

(“PEB”). Id. ¶ 12; Def.s Motion to Dismiss (“Def.’s Mot.”) at 2. As her complaint

recites, “This counseling indicated that she was being considered for separation or

retirement based on her disabilities.” Compl. ¶ 12.

On April 2, 2004, however, she received non-judicial punishment (“NJP”) under

the Uniform Code of Military Justice for the offenses of having wrongfully distributed

two prescription medications: amitriptyline pills in January 2004 and Percocet pills in

November 2003. Id. ¶ 14. She was reduced in rank and forfeited two months’ pay. Id.

On May 12, 2004, she was notified of the initiation of administrative separation

proceedings due to misconduct related to drug abuse. Id. ¶ 16. The misconduct was

characterized as “wrongful use of amitriptyline.” Id.

Citing her pending administrative separation due to misconduct, the PEB

“rejected” Ms. Feliciano’s medical evaluation referral. Id. ¶ 17; Def.’s Mot., App’x

A009. The rejection was not a merits-based determination, but rather made because the

service-member had a preemptory action for legal/administrative-based separation

already pending. Id. As Plaintiff noted in her response to the Government’s motion to

dismiss, citing Secretary of the Navy Instruction (“SECNAVINST”) 1850.4E, Para.

3403, “disciplinary separation . . . normally supersede[s] disability separation or

retirement.” Pl.’s Resp. at 2.

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While her administrative separation action was proceeding, Plaintiff was

evacuated in June 2004 to the Naval Medical Center in San Diego for continued

neurological treatment. Compl. ¶ 19. A medical treatment note in September 2004

asserted that she was determined “unfit for duty.” Id. ¶ 20. On September 10, 2004, the

Navy issued a second MEB for her post-concussive syndrome. Id. ¶ 21. She was given a

processing memo relating to a PEB separation physical exam requirement. Id.

Nevertheless, she was discharged from the Marine Corps on September 24, 2004,

under “other than honorable conditions” due to misconduct related to drug abuse. Id. ¶

23. Although the second MEB had again referred her to a PEB for disability

consideration, a second PEB never was convened. Id. ¶ 24.

On August 8, 2005, Ms. Feliciano applied to the Naval Discharge Review Board

(“NDRB”) for an upgrade to honorable of the characterization of her discharge. Id. ¶ 25.

On May 4, 2006, the NDRB denied the relief sought. Id. ¶ 26. Nearly three years later,

on February 12, 2009, Ms. Feliciano submitted an appeal to the NDRB of the denial of

her request for relief. Id. ¶ 27. On April 30, 2010, the NDRB granted her relief to the

extent that her discharge was upgraded to “honorable” pursuant to “Secretarial

Authority.” Id. ¶ 28.

Consequently, on June 16, 2011, Ms. Feliciano applied to the Board for

Correction of Naval Records (“BCNR”) for relief including back pay, removal of her

NJP, and disability retirement benefits. On September 20, 2012, however, the BCNR

denied her application. Id. ¶ 33. It found that her application was untimely and that it

was not in the interest of justice to excuse its untimeliness. Id.; Def.’s Mot., App’x A001.

The BCNR noted that it was “unable to conduct a meaningful review of your contentions

of legal error in the imposition of your nonjudicial punishment, or of your claim of

factual innocence of the charge offenses, due to the amount of time which has elapsed

since the punishment was imposed . . .” Id. The BCNR further noted that the NDRB’s

upgrade of Ms. Feliciano’s discharge to honorable due to Secretarial Authority “did not

have the effect of setting aside the discharge, and it did not entitle you to consideration of

your case by the Physical Evaluation Board, or correction of your naval record to show

that you were retired by reason of physical disability.” Id. ¶ 33; Def.’s Mot., App’x A002.

Plaintiff filed her complaint in this Court on July 1, 2013. She asserts that the

BCNR decision was arbitrary, capricious, contrary to law and regulations, and not

supported by substantial evidence. Compl. ¶ 34.

II. Legal Standards

Under 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)(1) (2006).

While the Tucker Act waives the sovereign immunity of the United States for monetary

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damages, it 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). That substantive right must derive from a source that

is "money-mandating." See Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir.

2005) (en banc in relevant part).

In this case, Ms. Feliciano claims disability retirement pay under 10 U.S.C. §

1201 and restoration of military rank and forfeited pay under 37 U.S.C. § 204. However,

all claims before this court under the Tucker Act are subject to a six-year statute of

limitations: “Every claim of which the United States Court of Federal Claims has

jurisdiction shall be barred unless the petition is filed within six years after such claim

first accrues.” 28 U.S.C. § 2501. The limitations period under § 2501 “may not be

waived” because it is “a jurisdictional requirement for a suit in the Court of Federal Claims.”

John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1354 (Fed. Cir. 2006), aff’d, 552

U.S. 130 (2008). Likewise, it is “not susceptible to equitable tolling.” John R. Sand &

Gravel Co., 552 U.S. at 136.

In Martinez v. United States, the Federal Circuit determined that “[a] cause of

action cognizable in a Tucker Act suit accrues as soon as all events have occurred that are

necessary to enable the plaintiff to bring suit, i.e., when ‘all events have occurred to fix

the Government's alleged liability, entitling the claimant to demand payment and sue here

for his money.’" Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en

banc) (quoting Nager Elec. Co. v. United States, 368 F.2d 847, 851 (Ct. Cl. 1966)).

In the context of a claim arising from a military discharge, a “plaintiff’s cause of

action for back pay accrues at the time of the plaintiff's discharge.” “[T]he claim for back

pay,” however, “is not a ‘continuing claim’ that accrues each time a payment would be

due throughout the period that the service member would have remained on active duty.”

Martinez, 333 F.3d at 1303 (internal citations omitted). Rather, it accrues on the date of

discharge, “‘once and for all.’” Id. (citing Mathis v. United States, 391 F.2d 938, 939 (Ct.

Cl. 1968)). Therefore, a claimant must file suit within the six-year limitation period

provided under 28 U.S.C. § 2501 or “the plaintiff loses all rights to sue for the loss of pay

stemming from the challenged discharge.” Id. at 1304. Consistently, a claimant cannot

toll the claim by seeking permissive administrative review before a military corrections

review board. Id. at 1312.

The Federal Circuit differentiates, however, between the accrual date of claims

arising from a military discharge and “claims of entitlement to disability retirement pay”

because the latter claims “generally do not accrue until the appropriate military board

either finally denies such a claim or refuses to hear it.” Chambers v. United States, 417

F.3d 1218, 1224 (Fed. Cir. 2005) (citing Real v. United States, 906 F.2d 1556, 1560 (Fed.

Cir. 1990)). Because, under 10 U.S.C. § 1201, Congress entrusted the military with the

initial task of assessing retirement due to disability, “no cause of action arises (and the

statute of limitations does not run) until a proper board has acted or declined to act.”

Friedman v. United States, 310 F.2d 381, 389 (Ct. Cl. 1962). By contrast, “mere release

from active duty without a Retiring Board (or request for one) or without disability

retirement pay is not enough to start the limitations period.” Id. at 390.

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In Real, the Federal Circuit characterized the Friedman rule: “Thus, under

Friedman if the service member had neither requested nor been offered consideration by

a retiring board prior to discharge, the later denial of his petition by the corrections board

was the triggering event, not his discharge.” Real, 906 F.2d at 1560.

III. Discussion

Ms. Feliciano’s claims must be dismissed because they accrued more than six

years before she filed her complaint on July 1, 2013 and her claims cannot otherwise be

tolled. Both of Ms. Feliciano’s claims, requesting disability retirement pay under 10

U.S.C. § 1201and restoration of military rank and forfeited pay under 37 U.S.C. § 204(a),

accrued at the time of her military discharge on September 24, 2004.

A. Claim for Restoration of Military Rank and Forfeited Pay

The Federal Circuit’s holding in Martinez, stating that “a plaintiff’s cause of

action for back pay accrues at the time of the plaintiff's discharge,” renders Ms.

Feliciano’s claim for the restoration of military rank and forfeited pay under 37 U.S.C. §

204 time-barred under 28 U.S.C. § 2501 because it accrued when she was discharged

from the Marine Corps on September 24, 2004. Martinez, 333 F.3d at 1303 (internal

citations omitted). Ms. Feliciano must have filed her case on or before September 2010

in order for her claim to have been within the six-year limitation period prescribed by §

2501.

B. Claim for Disability Retirement Pay

Whether Ms. Feliciano’s claim for disability benefits accrued as of the September

2004 date of her military discharge or in September 2012 when the BCNR denied her

application is a closer question than the accrual date of her claim for back pay.

In Chambers, the Federal Circuit indicated that a disability retirement pay claim

wouldn’t generally “accrue until the appropriate military board either finally denies such

a claim or refuses to hear it.” Chambers, 417 F.3d at 1224 (internal citations omitted).

The Federal Circuit also stated in Chambers that, “if at the time of discharge, the service

member requested review by an appropriate board and the request was denied, or if the

board heard the service member's claim and denied it, then the limitations period begins

to run upon discharge.” Id. at 1225. Prior to Chambers, the Federal Circuit’s decision in

Real stated pertinently that “[a] subsequent petition to the corrections board does not toll

the running of the limitations period.” Real, 906 F.2d at 1560 (citing Friedman, 310 F.2d

at 390.

Prior to Ms. Feliciano’s discharge from the Marine Corps on September 24, 2004,

the PEB had already rejected Ms. Feliciano’s MEB – on May 18, 2004 – because of her

pending administrative separation. Compl. at ¶¶ 17, 23. Prior to her military discharge,

the Department of the Navy initiated a second MEB for Ms. Feliciano’s post-concussive

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syndrome on September 10, 2004, but that report was not referred to an PEB for

adjudication until October 1, 2004, subsequent to her discharge. Id. at ¶¶ 21, 24. Since

Ms. Feliciano was discharged from the Marine Corps without the PEB having considered

her second MEB referral, Plaintiff argues that the BCNR in 2012 was “the first proper

board to act on her claims.” Pl.’s Resp. at 9. Thus, per the guidance in Chambers, she

argues, “the statute of limitations did not begin to run until the decision of the BCNR was

issued.” Id.

Unfortunately for Ms. Feliciano, it is significant that the second MEB derives

from the same injury addressed in the first MEB, which was referred to a PEB on March

25, 2004. Compl. at ¶¶ 6, 12, 13, 17. At the time of her discharge, therefore, the PEB

had already rejected, i.e., “denied,” her first MEB and did not convene to address the

second MEB referral regarding the same injury. Id. at ¶¶ 17, 24. Under Chambers, the

PEB’s refusal to consider Ms. Feliciano’s first MEB establishes that her disability claim

accrued upon the date of Ms. Feliciano’s discharge. Chambers, 417 F.3d at 1224

(disability claim accrues when “the appropriate military board either finally denies such a

claim or refuses to hear it.”) (emphasis added). The decision in Chambers also firmly

establishes that a PEB constitutes such an appropriate board. Id. at 1225 n.2.

However, Plaintiff insists that Ms. Feliciano’s discharge without a final

determination on her second MEB evidences the BCNR’s 2012 decision as the date her

claim accrued, based the following statement from Chambers: “But where the claimant

‘has not had or sought a [PEB], his claim does not accrue until final action by the

Correction Board (which in that instance stands in the place of the [PEB] as the proper

tribunal to determine eligibility for disability retirement).’” Id. at 1225 (quoting

Friedman, 310 F.2d at 396). Plaintiff also contends that the following statement in

Chambers supports her argument:

Thus where the service member was released from service

without a board hearing and subsequently files a claim for

disability retirement before a military correction board, ‘the

Correction Board becomes the first proper board to act (or to be

asked to act) on the matter, and the claim does not ripen until that

Board's action is final….’ The Correction Board proceeding

‘becomes a mandatory remedy.’

Id. (emphasis in original) (quoting Friedman, 310 F.2d at 396).

Accordingly, Plaintiff contends that “[h]ad Ms. Feliciano filed suit in this court

[soon after her 2004 discharge] there would be a dismissal for lack of subject matter

jurisdiction because she was not eligible to receive disability compensation because of

her misconduct discharge.” Pl.’s Resp. at 9-10.

Ms. Feliciano is mistaken. In fact, a PEB took cognizance of Ms. Feliciano’s first

MEB referral and rejected it before her discharge. Compl. at ¶ 17. Thus the PEB, not the

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Corrections Board, became “the first proper board to act (or to be asked to act) on the

matter.” Chambers, 417 F.3d at 1225 (internal citations omitted).

Plaintiff also contends that because she herself had not requested the PEB, her

claim could not have accrued until the BCNR’s 2012 decision. Pl.’s Resp. at 9. “Under

either MEB, Ms. Feliciano did not have or seek a retiring board. Both MEB’s were

convened at the direction of military medical officers and not by request of Ms.

Feliciano.” Id. This Court does not find that distinction to be determinative. The key

element in determining the accrual date of a disability retirement claim is the action of an

authorized board, not who requested the PEB. See Real, 906 F.2d at 1560 (“if the service

member had neither requested nor been offered consideration by a retiring board . . .)

(emphasis added).

As Defendant soundly argues, “Ms. Feliciano’s disability claim for injuries

suffered during basic training was forwarded from the MEB to the PEB, which took

cognizance of the claim but ultimately refused to hear it because of administrative

separation proceedings related to her drug abuse.” Def.’s Reply at 3.

It is not necessary that the PEB must have acted on the merits of Plaintiff’s

disability consideration. It refused to hear her claim and that “rejection” triggered the

running of the six-year statute of limitations from the time of her discharge on September

24, 2004. She filed her complaint in this Court, however, more than six years later, on

July 1, 2013.

IV. Conclusion

Because the limitations period is jurisdictional, this Court is not empowered to

proceed in hearing her claims. For the above reasons, Defendant’s motion to dismiss is

GRANTED. The Clerk is directed to enter judgment accordingly.

s/ Edward J. Damich

EDWARD J. DAMICH

Judge

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