Shelkofsky v. United States

FILED

NOV - 4 2014

U.S. OOURT OF

FEDERAL CLAIMS

3Jn tbe mlniteb ~tates (!Court of jfeberal (!Claims

No. 13-1016 C

Filed: November 4, 2014

****************************************

Jurisdiction;

* Motion to Dismiss, RCFC 12(b)(l),

* 12(b)(6);

* Res Judicata;

* Prose;

* 10 U.S.C. § 1201 (Regulars and

* members on active duty for more than

* 30 days: retirement);

* 10 U.S.C. § 1202 (Regulars and

* members on active duty for more than

* 30 days: temporary disability retired

* list);

MORRIS SHELKOFSKY, *

10 U.S.C. § 1203 (Regulars and

*

members on active duty for more than

Plaintiff, pro se, *

30 days: separation);

*

10 U.S.C. § 1208 (Computation of

v. *

service);

*

10 U.S.C. § 1209 (Transfer to inactive

THE UNITED STATES, *

status list instead of separation);

*

10 U.S.C. § 1210 (Members on

Defendant. *

temporary disability retired list:

*

periodic physical examination; final

*

determination of status);

*

10 U.S.C. § 12731 (Age and service

*

requirements);

*

10 U.S.C. § 12738 (Limitations on

*

revocation of retired pay);

* 28 U.S.C . § 1491 (Claims against United

* States generally; actions involving

* Tennessee Valley Authority).

*

****************************************

Morris Shelkofsky, Tallahassee, Florida, Plaintiff, prose.

Barbara E. Thomas, United States Department of Justice, Civil Division, Washington, D.C.,

Counsel for the Government.

MEMORANDUM OPINION AND FINAL ORDER

BRADEN, Judge.

I. RELEVANT FACTUAL BACKGROUND. 1

In 1997, while traveling in connection with his military service, Morris Shelkofsky, a

former Judge Advocate General in the Air Force Reserve, was involved in a car accident that left

him with substantial injuries. See Shelko/sky II, 534 F. App'x at 984.

On May 5, 1998, the United States Air Force ("Air Force") issued Special Order No.

ACD-872 that released Mr. Shelkofsky from active duty as of May 26, 1998. Comp!. Ex. F. On

May 27, 1998, the Air Force assigned Mr. Shelkofsky to the Temporary Disability Retired List

("TDRL") with a physical disability rating of 40 percent. 2 Comp!. Ex. F at 3. Approximately

two years later, the Air Force reassessed Mr. Shelkofsky's condition and assigned him a

stabilized disability rating of 20 percent. See Shelko/sky II, 534 F. App'x. at 984; Gov't Mot.

App'x A4-A5.

On July 30, 2000, Mr. Shelkofsky was "removed from the TDRL and retired in the grade

ofCol[onel] by reason of physical disability per [Air Force Instruction] 36-3212 with entitlement

to Disability Severance Pay." Comp I. Ex. A. 3 Soon thereafter, Mr. Shelkofsky signed a

1

The relevant facts were derived from: Plaintiff's December 23, 2013 Complaint

("Comp!."), and exhibits attached thereto ("Comp!. Ex. A-F"); Plaintiff's May 27, 2014

Response ("Pl. Resp."), and exhibits attached thereto ("Pl. Resp. Ex. 1-6"); an Appendix

attached to the Government's April 25, 2014 Motion To Dismiss ("Gov'! Mot. App'x. Al-

A41 ");and an Appendix attached to the Government's June 9, 2014 Reply ("Gov'! Reply App'x.

SAl-SA57"). The court's discussion is also informed by an Opinion and Order in

Shelko/sky v. United States, llO Fed. Cl. 15 (2013) ("Shelko/sky f'), afj'd 534 F. App'x 983

(Fed. Cir. 2013) ("Shelko/sky If').

2

When the military "determines that a member is unfit to perform the duties of his or her

office, grade, rank, or rating because of physical disability that would qualify for disability

retirement, except that the member's disability is not determined to be stable, then the member

may be placed on the TDRL." U.S. DEP'T OF DEFENSE, DOD 700.14-R, VOLUME B: "MILITARY

PAY POLICY - RETIRED PAY" § ll0201 (2012), available at http://comptroller.defense.gov/

Portals/45/documents/fmrNolume_07b.pdf (last visited Oct. 27, 2014); see also 10

U.S.C. §§ 1201, 1202, 1210(b). If the member meets the qualifying criteria, he or she may

remain on the TDRL for up to five years, but the member must undergo periodic physical

examinations to determine whether the condition has stabilized. See 10 U.S.C. § 1210. If the

member's condition stabilizes at a disability rating of 30 percent or more, the member is

transferred to the PDRL. JO U.S.C. § 1210(c).

3

Disability Severance Pay is "a lump-sum payment to a member of the Uniformed

Services who is involuntarily separated from military service for minor physical disability and

who does not qualify for [D]isability [R]etired [P]ay." U.S. DEP'T OF DEFENSE, DoD 700.14-R,

VOLUME B: "MILITARY PAY POLICY - RETIRED PAY" § 040102(D) (2012), available at http://

comptroller.defense.gov/Portals/45/documents/frnrNolume_07b.pdf (last visited Oct. 27, 2014).

A member who elects separation and receives Disability Severance Pay "is not entitled to any

payment from the armed force from which he was separated for, or arising out of, his service

before separation[.]" IO U.S.C. § 1213.

2

Separation Agreement opting for Disability Severance Pay, instead of Active Reserve Status, that

would have entitled him to Age-Based Retirement Pay on his 60th birthday on December 29,

2007. 4 See Shelko/sky II, 534 F. App'x. at 984.

On July 31, 2000, the Air Force erroneously placed Mr. Shelkofsky on the Permanent

Disability Retired List ("PDRL"), instead of discharging him. See id ("By an administrative

error, the Air Force transferred [Mr. Shelkofsky] from the TDRL to the PDRL. [Mr.

Shelkofsky]'s stabilized disability rating at discharge was only 20 percent, and therefore should

not have been transferred to the PDRL, which requires a rating of at least 30 percent.").

In early August of 2000, Mr. Shelkofsky contacted the Defense Finance and Accounting

Service ("DFAS") 5 to inquire about entitlement to Disability Severance Pay that he selected but

never received. Comp!. 'I/ 6. The Air Force advised Mr. Shelkofsky that his July 31, 2000

discharge was in error and that the Air Force retired him as a Colonel based on years of service

and transferred him to the PDRL. Comp!. 'I/ 6.

On March 5, 2008, shortly after turning 60 years old, Mr. Shelkofsky filed an application

with the Air Force Board for Correction of Military Records ("AFBCMR") to correct his record

and place him on the inactive status list ("ISL"). 6 See Shelko/sky II, 534 F. App'x at 984 ("In

4

Pursuant to IO U.S.C. § 12731(a), a reserve member may be entitled to Age-Based

Retirement Pay, if he or she:

(I) has attained the eligibility applicable under subsection (f) to that person;

(2) has performed at least 20 years of service computed under section 12732

of this title; [and]

***

(4) is not entitled, under any provision of law, to retired pay from an armed

force[.]

10 U.S.C. § 1273 l(a).

5

The Secretary of Defense "created [DFAS] to standardize, consolidate, and improve

accounting and financial functions throughout the [Department of Defense] .... DFAS pays all

[Department of Defense] military and civilian personnel, retirees and annuitants, as well as major

DoD contractors and vendors." DEF. FINANCE AND ACCOUNTING SERV., http://www.dfas.

mil/pressroom/aboutdfas.html (last visited Oct. 27, 2014).

6

If a reserve member "has at least 20 years of service computed under section 12732 of

[title 1OJ" and "would be qualified for retirement under this chapter but for the fact that his

disability is less than 30 percent," the reserve member may choose to be transferred to the ISL,

rather than being separated and receiving severance pay. See IO U.S.C. § 1209; see also 10

U.S.C. § 1203 (stating the required determinations of disability). Once on the ISL, the reserve

member may become eligible "to receive retired pay under section 12739 of [title 10] upon

becoming 60 years of age." 10 U.S.C. § 1209.

3

2008, after reaching the age of 60, Plaintiff filed for a correction of his military records at the

AFBCMR asking for placement on the [ISL]. If listed, he would be eligible to collect reserve

retirement pay."). The AFBCMR granted his request "[a]fter verifying that [Mr. Shelkofsky]

never received severance pay[.]" Id. On October 8, 2008, the Air Force issued Special Order

No. ACD-00051, retroactively transferring Plaintiff from the TDRL to the ISL Reserve Section,

effective July 30, 2000. Comp!. Ex. B.

Subsequently, the DFAS discovered that Mr. Shelkofsky's placement on the PDRL was

in error when it attempted to implement the AFBCMR's decision and transferred him to the ISL.

See Shelko/sky II, 534 F. App'x at 984. On November 10, 2008, the DFAS informed Mr.

Shelkofsky that, if his records were retroactively modified to reflect that he was placed on ISL as

of July 30, 2000, he would be required "to pay back the disability retire[ment] pay he received

for the previous seven years." Id. at 985.

On November 29, 2008, Mr. Shelkofsky asked the AFBCMR "to withdraw its approval

of his request to correct his records and to move to the [ISL], explaining his desire not to incur

such a debt." Id.; see also Pl. Resp. Ex. 3. On April 17, 2009, the AFBCMR granted Mr.

Shelkofsky's request by Special Order No. ACD-01045 voiding the 2008 Special Order, so that

the DFAS terminated Mr. Shelkofsky's Disability Retirement Pay. 7 Comp!. Ex. C.

In 2010, however, Mr. Shelkofsky filed an application to reinstate the AFBCMR's voided

2008 Special Order to "obtain [Age-Based Retirement Pay], or in the alternative, for an

adjustment to his assigned disability percentage so that he would be eligible to stay on the

[PDRL]." Shelko/sky II, 534 F. App'x at 985. The DFAS denied that request, because it

determined that final and conclusive prior proceedings settled his entitlement to Age-Based

7

To qualify for Disability Retirement Pay, the Secretary of the Air Force must determine

that the reservist "is unfit to perform the duties of [his or her] office, grade, rank, or rating

because of physical disability." 10 U.S.C. § 120l(a). In addition, the Secretary must find that:

(1) based upon accepted medical principles, the disability is of a permanent

nature and stable;

(2) the disability is not the result of the member's intentional misconduct or

willful neglect, and was not incurred during a period of unauthorized

absence; and

(3) either-

(A)the member has at least 20 years of service computed under section

1208 of [title 1O]; or

(B) the disability is at least 30 percent under the standard schedule of

rating disabilities in use by the Department of Veterans Affairs at the

time of the determination[.]

10 u.s.c. § 120l(b).

4

Retirement Pay. Id. Mr. Shelkofsky asked for reconsideration, "based upon a more recent 60%

disability rating assessed by the Department of Veterans Affairs[]'' ("VA"), but the AFBCMR

found that evidence of eligibility must be reviewed at the time Mr. Shelkofsky was removed

from the TDRL in 2000. Id

II. PROCEDURAL HISTORY.

On November 14, 2011, Mr. Shelkofsky filed a Complaint in the United States Court of

Federal Claims alleging that he was entitled to Age-Based Retirement Pay. See Shelkofsky I, 110

Fed. Cl. 15 (2013). On March 20, 2013, the court granted the Government's Motion For

Judgment On The Administrative Record, determining that the AFBCMR's decision to deny Mr.

Shelkofsky retirement pay was not arbitrary, capricious, or contrary to law. Id. at 18-19. The

court acknowledged that Mr. Shelkofsky may have been statutorily eligible for retirement pay

but that "he waived his right to [A]ge-[B]ased [R]etirement [P]ay when he was separated from

the Air Force in 2000." Id at 18. On appeal, the United States Court of Appeals for the Federal

Circuit affirmed. See Shelko/sky II, 534 F. App'x 983.

On December 23, 2013, Mr. Shelkofsky ("Plaintiff') filed a second Complaint in the

United States Court of Federal Claims, alleging that he is entitled to Disability Retired Pay or,

alternatively, to Disability Severance Pay. Comp!. ~ I. The December 23, 2013 Complaint

cited, as support: "twenty good years" of service; having reached his sixtieth birthday on

December 29, 2007; and "total Reserve points of 5171 in the grade of Colonel 0-6 from May

2009 and continuing throughout his life." Comp!.~~ 3-4, 15. "Alternatively, [the Complaint

alleged that Plaintiff] is entitled to Disability Retired Pay based on his 40 percent rating on the

TDRL in the grade of Colonel 0-6 from May 2009 and continuing throughout his life." Comp!.

~ 16. The Complaint invoked IO U.S.C. § 12738 to limit revocation of PDRL pay that Plaintiff

received. Comp!. ~ 13. The Complaint also includes an alternative claim for Disability

Severance Pay plus "interest from July 31, 2000, to the present." Comp!.~ 18.

On April 25, 2014, the Government filed a Motion To Dismiss ("Gov't Mot."), arguing

that the court does not have subject matter jurisdiction to adjudicate the claims alleged in the

Complaint, because the events: occurred outside the applicable six-year limitations period; and in

the alternative, are barred by the doctrine of claim preclusion. On May 27, 2014, Plaintiff filed a

Response ("Pl. Resp."). On June 9, 2014, the Government filed a Reply ("Gov't Reply").

III. DISCUSSION.

A. Jurisdiction.

The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28

U.S.C. § 1491, "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. § 149l(a)(l ). The Tucker Act, however, is "a

jurisdictional statute; it does not create any substantive right enforceable against the United

States for money damages . . . . [T]he Act merely confers jurisdiction upon [the United States

Court of Federal Claims] whenever the substantive right exists." United States v. Testan, 424

U.S. 392, 398 (1976).

5

To pursue a substantive right under the Tucker Act, a plaintiff must identify and plead an

independent contractual relationship, Constitutional provision, federal statute, and/or executive

agency regulation that provides a substantive right to money damages. See Todd v. United

States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) ("[J]urisdiction under the Tucker Act requires the

litigant to identify a substantive right for money damages against the United States separate from

the Tucker Act[.]"); see also Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en

bane) ("The Tucker Act ... does not create a substantive cause of action; ... a plaintiff must

identify a separate source of substantive law that creates the right to money damages. . . . [T]hat

source must be 'money-mandating."'). Specifically, a plaintiff must demonstrate that the source

of substantive law upon which he relies "'can fairly be interpreted as mandating compensation

by the Federal Government[.]"' United States v. Mitchell, 463 U.S. 206, 217 (1983) (quoting

Testan, 424 U.S. at 400). And, the plaintiff bears the burden of establishing jurisdiction by a

preponderance of the evidence. See Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746,

748 (Fed. Cir. 1988) ("[O]nce the [trial] court's subject matter jurisdiction [is] put in

question .... [the plaintiff] bears the burden of establishing subject matter jurisdiction by a

preponderance of the evidence.").

In this case, Mr. Shelkofsky relies on money-mandating sources of law for the Disability

Retirement Pay and Disability Severance Pay claims in his December 23, 2013 Complaint. See

Fisher, 402 F .3d at 1174 (stating that "[l 0 U.S.C.] § 1201 is understood as money-mandating").

Thus, the court has jurisdiction.

B. Standards of Review for Pro Se Litigants.

A challenge to the United States Court of Federal Claims' "general power to adjudicate in

specific areas of substantive law . . . . is properly raised by a [Rule] 12(b)(l) motion."

Palmerv. United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see also RCFC 12(b)(I)

(allowing a party to assert, by motion, "lack of subject-matter jurisdiction"). When considering

whether to dismiss an action for lack of subject matter jurisdiction, the court is "obligated to

assume all factual allegations [of the complaint] to be true and to draw all reasonable inferences

in plaintiff's favor." Henke v. United States, 60 F.3d 795, 797 (Fed. Cir. 1995).

A challenge to the United States Court of Federal Claims' "[ability] to exercise its

general power with regard to the facts peculiar to the specific claim ... is raised by a [Rule]

12(b)(6) motion[.]" Palmer, 168 F.3d at 1313; see also RCFC 12(b)(6) ("Every defense to a

claim for relief in any pleading must be asserted in the responsive pleading .... But a party may

assert the following defenses by motion: ... (6) failure to state a claim upon which relief can be

granted[.]").

When considering whether to dismiss an action for failure to state a claim, "[t]he court

must assess whether the complaint adequately states a claim and whether plaintiffs can allege

'facts plausibly suggesting (not merely consistent with)' a showing of entitlement to relief."

Hutchens v. United States, 89 Fed. Cl. 553, 562 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 557 (2007)). The plaintiff's factual allegations must be substantial enough to raise the

right to relief"'above the speculative level,"' accepting all factual allegations in the complaint as

true and '"indulg[ing] all reasonable inferences in favor of the non-movant."' Id. (quoting

6

Twombly 550 U.S. at 555; Chapman Law Firm v. Greenleaf Constr. Co., 490 F.3d 934, 938)

(Fed. Cir. 2007)).

Pro se plaintiffs' pleadings are held to a less stringent standard than those of litigants

represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that prose

complaints, "however inartfully pleaded," are held to "less stringent standards than formal

pleadings drafted by lawyers[]"). This court traditionally examines the record "to see if [a pro

se] plaintiff has a cause of action somewhere displayed." Ruderer v. United States, 412 F.2d

1285, 1292 (Ct. Cl. 1969). Nevertheless, while the court may excuse ambiguities in a prose

plaintiffs complaint, the court "does not excuse [a complaint's] failures." Henke, 60 F.3d at

799.

C. Whether The Claims In The December 23, 2013 Complaint Are Barred By

The Statute Of Limitations.

1. The Government's Argument.

The Government argues that the United States Court of Federal Claims does not have

jurisdiction to adjudicate the military Disability Retirement Pay or Disability Severance Pay

claims alleged in the December 23, 2013 Complaint, because they are "barred unless the petition

thereon is filed within six years after such claim[s] first [accrue]." 28 U.S.C. § 2501. This is so,

because Plaintiffs claims accrued on July JO, 2000 when the Air Force issued Special Order No.

ACD-868 discharging him from the Air Force Reserve with disability. Gov't Mot. at 12. That

Order presented Plaintiff with two options: (1) be placed on the ISL; or (2) be separated with

severance. See Shelko/sky II, 534 F. App'x. at 984. Plaintiff elected the severance package

option. See id.; Comp!. if 5. Therefore, the Air Force's liability was fixed on July 10, 2000, the

date of Plaintiffs separation, requiring Plaintiff to institute an action before the limitations

period expired on July 10, 2006. Plaintiff did not, and therefore, his claim is now time-barred.

Gov't Mot. at 12.

The December 13, 2013 Complaint does not allege that the Air Force concealed any

relevant facts from Plaintiff. Gov't Mot. at 14. Instead, Plaintiffs delay in asserting a claim was

the result of "his decision to run the risk that he was receiving unauthorized benefits subject to

discontinuance," particularly since "[Plaintifl] knew that the monthly benefits he was receiving

did not match the benefits-[Disability] [S]everance [Pay]-that had been ordered." Gov't Mot.

at 14. Consequently, Plaintiffs reliance on the "inherently unknowable" injury exception is

unsupported, in light of his communications with the DFAS. Gov't Reply at 2. "[Plaintiffs]

current assertion that he was told by an unnamed DFAS employee in August 2000 that he had

been placed on the PDRL based on years of service is strikingly inconsistent with

[Plaintiffs] ... past statements and behavior." Gov't Reply at 7. "[Plaintiffs] description ... of

his alleged conversation with DFAS does not even match the one contained in the affidavit he

cites as supporting evidence." Gov't Reply at 4-5 (citing Pl. Resp. Ex. !).

In addition, even if Plaintiff contacted the DFAS in 2000, he knew or reasonably should

have known that the Secretary of the Air Force did not consider Plaintiff eligible for Disability

Retired Pay. Gov't Reply at 4. As the June 2000 correspondence between DFAS and Plaintiff

evidences, Plaintiff needed at least 20 years of service to qualify for retirement benefits, pursuant

7

to 10 U.S.C. § 1208. The July 10, 2000 Special Order NO. ACD-00051 informed Plaintiff that

he was discharged with 13.68 years of service. Comp!. Ex. B.

Therefore, "[Plaintiff] could not have reasonably relied upon the statements allegedly

made to him by a DFAS employee," because his eligibility for permanent retirement pay was not

determined by the DFAS. Gov't Mot. at 4. Instead, eligibility is determined by the Secretary of

the Air Force, and the Secretary never made that finding. Gov't Mot. at 4. Finally, Plaintiffs

allegation that he believed he was placed on the PDRL based on years of service conflicts with

prior correspondence, i.e., a 2008 request for Age-Based Retirement pay for "never [receiving]

the severance pay referred to" in his separation order); an October 2009 letter to the AFBCMR

(admitting that he "never should have been retired on the PDRL" given his 20 percent disability

rating and lack of20 years of service); and a May 2011 letter to the AFBCMR (representing that

he had been on the TDRL until May 19, 2003). Gov'! Reply at 5--{).

2. The Plaintiff's Response.

Plaintiff responds that the Tucker Act's six-year statute of limitations should run from

when the DFAS stopped paying Disability Retired Pay in May 2009 and informed Plaintiff that

he was retired based on years of service, so that the December 23, 2013 Complaint is timely. Pl.

Resp. at I. Plaintiff also contends that the Motion to Dismiss misstates the accrual suspension

rule, in light of Holmes v. United States, 657 F.3d 1303 (Fed. Cir. 2011) (stating that the

inherently unknowable test "includes an intrinsic reasonableness component"). Pl. Resp. at 5.

Plaintiffs injury was "inherently unknowable" given that the documents provided by the Air

Reserve Personnel Center ("ARPC") were "unavailable to Plaintiff prior to the computer

database upgrade of201 l." Pl. Resp. at 2-3.

Plaintiffs "continuous active service in enlisted and Regular officer status and in Reserve

Officer status comprise a total of 7, 723 points . . . . When divided by the 360 divisor of I 0

U.S.C. §§ 1208(b) and 12733, the dividend is 21.45 years, [which] ... fulfills the 20 years

requirement of IO U.S.C. § 1201." Pl. Resp. at 3. The November 10, 2008 letters from DFAS

establishes Plaintiffs entitlement to Disability Retired Pay, if he paid back the PDRL benefits.

Pl. Resp. at 2; Pl. Resp. Exs. 2, 3. Plaintiff was "removed from the TDRL by operation of law

due to the expiration of the 5 year statutory limit[.]" Pl. Resp. at 4. "[B]ased on the permanent

nature and stability of the 40% disability rating, Plaintiffs name should have been removed from

the TDRL." Pl. Resp. at 4. The statute of limitations runs from the date when the DFAS

informed Plaintiff that he was retired based on years of service and until May 2009 when DFAS

stopped paying Disability Retired Pay, so that the December 23, 2013 Complaint is timely. Pl.

Resp. at 1-2.

3. The Court's Resolution.

Plaintiff seeks either reinstatement of Disability Retirement Pay or the original

Disability Severance Pay option selected under the Separation Agreement, and requests the court

to find that the accrual suspension rule delays the accrual of both Plaintiffs Disability

Retirement Pay and Disability Severance Pay claims under the Tucker Act's statute of

limitations. Comp!. at p. 5; PI. Resp. at 5-7. Under the accrual suspension rule, "accrual of a

claim against the United States is suspended, for purposes of28 U.S.C. § 2501, until the claimant

8

knew or should have known that the claim existed." Martinez v. United States, 333 F.3d 1295,

1319 (Fed. Cir. 2003) (en bane).

a. Whether Plaintiff's Disability Severance Pay Claim Is Time-

Barred.

As to Plaintiffs Disability Severance Pay claim, the Air Force issued Special Order

ACT-00868 on July 10, 2000, that informed Plaintiff that he was "removed from the [TDRL]

and discharged in the grade of Col[ one!] by reason of physical disability ... with entitlement to

Disability Severance Pay." Comp!. Ex. A. This entitled Plaintiff to a "lump-sum payment."

DOD 700.14-R, VOLUME B: "MILITARY PAY POLICY - RETIRED PAY" § 040102(D) (2012).

Instead, Plaintiff was erroneously classified and paid due to the Government's error in placing

him on the PDRL. The Government's actions in paying monthly payments and Plaintiffs seven

years' acceptance of those payments run directly counter to either of the Separation Agreement's

options. During this time period, Plaintiff was aware that he had not received his "lump-sum

payment" for Disability Severance Pay, as evidenced by the fact that in early August 2000, he

"contacted the [DFAS] ... to inquire about his Disability Severance Pay" but continued to

receive the erroneous Disability Retirement Pay through April 2009. Com pl. 'lf'll 6, 9.

The Tucker Act provides 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. "This six-year limitations period is jurisdictional

and may not be waived or tolled." FloorPro, Inc. v. United States, 680 F.3d 1377, 1380-81

(Fed. Cir. 2012) (citing John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 136-39

(2008) ). A claim is deemed to have accrued once all events necessary for a plaintiff to bring suit

have occurred, 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." Nager Elec.

Co. v. United States, 368 F.2d 847, 851 (Ct. Cl. 1966); see also Goodrich v. United States, 434

F.3d 1329, 1333 (Fed. Cir. 2006) ("[A] claim accrues when all the events have occurred which

fix the liability of the Government and entitle the claimant to institute an action.") (internal

citations omitted). But, under the accrual suspension rule, a claim cannot accrue until the

plaintiff "knew or should have known that the claim existed." Martinez, 333 F.3d at 1319

(holding that a plaintiff must show either "that the defendant has concealed its acts with the

result that plaintiff was unaware of their existence" or that "its injury was 'inherently

unknowable' at the accrual date[]") (internal citations and quotation marks omitted).

In this case, the July 10, 2000 Special Order ACD-00868 informed Plaintiff of his

entitlement to Disability Severance Pay, and the Complaint states that Plaintiff was aware that he

had not received a Disability Severance Pay check. Comp!. 'll'lf 6, 9. Therefore, the court has

determined that Plaintiff either knew, or reasonably should have known of the error within a

short time after July 10, 2000. See Martinez, 333 F.3d at 1319; Holmes, 657 F .3d at 1320-21.

Therefore, the court has determined that Plaintiffs claim for Disability Severance Pay is

time-barred under the Tucker Act.

9

b. Whether Plaintifrs Disability Retirement Pay Claim is Time-

Barred.

As to Plaintiff's Disability Retirement Pay claim, the United States Court of Federal

Claims applies the "first competent board" rule to determine whether a Disability Retirement Pay

claim is time-barred. See Chambers v. United States, 417 F.3d 1218, 1225 (Fed. Cir. 2005). 8

Under this rule, the United States Court of Federal Claims has jurisdiction over Disability

Retirement Pay claims once "a military board evaluates a service member's entitlement to such

retirement in the first instance." Id. at 1225 (internal citations and quotation marks omitted). A

8

The first competent board rule, in its entirety, states:

(a). The judicial claim for [Disability [R]etirement [P]ay does not accrue on

release from active duty but rather on final action of a board competent to pass

upon eligibility for [D]isability [R]etirement [Pay] (or upon refusal of a request

for such a board).

(b). Normally, the Retiring Board is the proper board, but where the claimant has

not had or sought a Retiring Board, his claim does not accrue until final action by

the Correction Board (which in that instance stands in the place of the Retiring

Board as the proper tribunal to determine eligibility for [D]isability [R ]etirement

[Pay]).

(c). A board's action (or failure to act) is not final if (i) the claimant has been

misled, (ii) the board's decision is tentative and invites reopening, (iii) the armed

service itself reopens the case, or (iv) there are other circumstances depriving the

action or non-action of finality.

(d). Once a final decision is had, the claim accrues, the limitations period begins

to run, and there is no tolling of the statute by reason of further applications to

other boards or agencies (including the Correction Board).

(e). Once a final decision is had, adverse determinations by other boards,

including the Correction Board, do not give rise to a new cause of action.

(f). A claim for entitlement to [D]isability [R]etirement [Pay]-of the type

requiring discretionary action by a board and the Secretary-is not a "continuing

claim" but accrues as a whole (once it accrues). However, other types of pay

claims not dependent on a board finding-including claims for increased

retirement pay because of new legislation, etc.-are "continuing" claims.

Friedman v. United States, 159 Ct. Cl. 1, 24-25 (Nov. 7, 1962); see also Chambers, 417 F.3d at

1225 n.2 ("A Retiring Board, now called Physical Examination Board or PEB, determines a

service member's fitness for duty and entitlement to [D]isability [R]etirement [Pay] once a

Medical Examination Board or MEB finds the soldier does not meet the [service]' s standards for

retention under its regulations.").

IO

military board is competent if it is "statutorily authorized" to hear the claim. See Real v. United

States, 906 F.2d 1557, 1560 (Fed. Cir. 1990).

In this case, by June 12, 2000, multiple competent boards had issued final decisions as to

Plaintiffs claims for Disability Retirement Pay. Specifically, the June 12, 2000 Memorandum

from the Director of the Secretary of the Air Force Personnel Counsel references prior decisions

by the Formal Physical Evaluation Board and Informal Physical Evaluation Board, 9 and concurs

with their recommendations "for a disposition of Separation with Severance Pay and a disability

rating of 20 percent." Gov't Mot. App'x at A4 (Memorandum For HQ AFPC/DPPS). This

decision barred Plaintiff from receiving any additional Disability Retirement Pay. See 10 U.S.C.

§ 1213 (stating that a member who elects separation and Disability Severance Pay "is not entitled

to any payment from the armed force from which he was separated for, or arising out of, his

service before separation"). 10

Although Plaintiff received Disability Retirement Pay, without entitlement, for seven

years, Plaintiffs claims for Disability Retirement Pay accrued on the date the first competent

board issued a final decision determining that Plaintiff was not entitled to Disability Retirement

Pay. Therefore, Plaintiff's claims for Disability Retirement Pay accrued no later the June 12,

2000, and the six-year statute of limitations period under Section 2501 expired no later than June

12, 2006.

The court cannot extend the accrual period of Plaintiffs Disability Retirement Pay claim

under the "continuing claims doctrine" to the cessation of Disability Retirement Pay in 2009,

because those pay claims are "of the type requiring discretionary action by a board and the

Secretary." Friedman, 159 Ct. Cl. at 25. As such, Plaintiffs Disability Retirement Pay claim "is

not a 'continuing claim' but accrues as a whole (once it accrues)" by the Physical Evaluation

Board's decision. Id; see also John R. Sand & Gravel Co., 552 U.S. at 139 (holding that Section

2501 is jurisdictional and that claims shall be barred "unless filed within six years of the time it

first accrues").

For these reasons, Plaintiffs Disability Severance Pay claim is time-barred.

9

These Physical Evaluation Boards are competent for the purposes of the first competent

board rule. See Chambers, 417 F.3d at 1225 n.2 ("[A] Physical Examination Board[,] or PEB,

determines a service member's fitness for duty and entitlement to [D]isability [R]etirement [Pay]

once a Medical Examination Board or MEB finds the soldier does not meet the [service]'s

standards for retention under its regulations.").

10

Plaintiff acknowledged that he "never should have been retired on the PDRL," because

his "percentage of disability from the final physical evaluation board (FPEB) was only 20% and

[he] did not have 20 years of service." Gov't Reply App'x at SA 26.

lJ

D. Whether The Claims In The December 23, 2013 Complaint Are Claim-

Precluded.

1. The Government's Argument.

In the alternative, the Government argues that Plainti ft' s claims are precluded as a matter

of law, because Plaintiff should have asserted them in Shelko/sky I, and a new theory of recovery

does not create a new claim. Gov't Mot. at 15.

The core operative facts alleged in Plaintiff's November 14, 2011 Complaint are the same

as those alleged in Plaintiff's December 23, 2013 Complaint: i.e., Plaintiff was separated from

the Air Force in 2000 with a 20 percent disability rating; Plaintiff elected to receive Disability

Severance Pay; the Air Force erred in transferring Plaintiff to the PDRL and in issuing Disability

Retired Pay rather than Disability Severance Pay; the error became apparent when Plaintiff asked

for Age-Based Retirement Pay; and after several interactions with the AFBCMR, the erroneous

pay was discontinued. Gov. Mot. at 16.

In addition, "[n]othing prevented [Plaintift] from bringing his current claims in

Shelko/sky I; indeed, he did raise numerous arguments related to his asserted entitlement to

[Disability Retirement Pay] in that litigation." Gov't Mot. at 17. Plaintiff further misapplies the

doctrine of claim preclusion, as "[Plaintift] appears to believe that his current claims are not

precluded[,] because [D]isability [R]etired [P]ay and [D]isability [S]everance [P]ay are distinct

from retirement at age 60." Gov't Reply at 9. Likewise, Plaintiff does not appear to understand

that claim splitting, based upon different legal theories, is not allowed. Gov't Reply at 10.

Plaintiffs attempt to distinguish the roles of the military departments is irrelevant to

demonstrating that the current claims alleged are not derived from the same set of facts as

Shelkofsky I. Gov'! Reply at 8-9.

2. The Plaintiff's Response.

Plaintiffs responds that the Government has made incorrect statements to establish a

common core of operative facts. Pl. Resp. at 7. The pending claims rely upon the "facts in the

retirement documents provided [by] the ARPC to DFAS and the attachments to this Response to

the M[otion] T[o] D[ismiss]." Pl. Resp. at 10. "DFAS made a correct decision based on the

retirement documents provided by ARPC and placed Plaintiff on the PDRL on July 30, 2000,

because those documents showed Plaintiff to be a Reservist who had accumulated 21.45 years

under 10 U.S.C. § 1208(b)." Pl. Resp. at 9 (citing Comp!. Ex.Fat 1-3). The AFBCMR's

revocation of its 2008 Special Order exhausted the five year period that Plaintiff was allowed to

remain on the TDRL and "rendered the 40% disability rating to be of a permanent nature and

stable." Pl. Resp. at 10; see also Comp!. Ex. C. As such, the Disability Retirement Pay claim is,

at most, "tangentially" related to the current cause of action. Pl. Resp. at 11. "The attempted

insinuation of Retirement at Age 60 into this lawsuit is improper because that cause of action

was determined in an earlier [United States Court of Federal Claims] case and [a United States

Court of Appeals for the] Federal Circuit appeal." Pl. Resp. at 11.

In addition, the Government misunderstands the structure and operation of the Air

Force's disability evaluation system. Pl. Resp. at 7. "The Air Force has had no responsibility for

making payments of Disability Retired Pay, Disability Severance Pay, or Reserve Retired Pay at

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Age 60." Pl. Resp. at 7. DFAS has authority over retirement pay for personnel of all the

military departments. Pl. Resp. at 7. The July 10, 2000, October 8, 2008, and April 17, 2009

Special Orders confirm "the validity of the OF AS' s decision to place Plaintiff on the PDRL

effective July 30, 2000." Pl. Resp. at 8-9. As such, the "propositions stated as a common core

of facts do not support application of the doctrine of claim preclusion," as this lawsuit is based

on correspondence and comments between ARPC and DFAS. Pl. Resp. at 10.

3. The Court's Resolution.

As a matter oflaw, claim preclusion bars a suit if:"(!) there is identity of parties (or their

privies); (2) there has been an earlier final judgment on the merits of a claim; and (3) the second

claim is based on the same set of transactional facts as the first." Jet, Inc. v. Sewage Aeration

Sys., 223 F.3d 1360, 1362 (Fed. Cir. 2000); Bowers Inv. Co. v. United States, 695 F.3d 1380,

1384 (Fed. Cir. 2012); see also Young Eng'rs, Inc. v. United States Int'/ Trade Comm'n, 721

F.2d 1305, 1314 (Fed. Cir. 1983). In both Shelko/sky I and in the present case, the first element

is clearly satisfied: the parties involved are Plaintiff and the United States. The second element

is also satisfied, as the United States Court of Federal Claims previously entered judgment on the

merits, determining that the AFBCMR's decision was not arbitrary, capricious, or contrary to

law. See Shelko/sky I, 110 Fed. Cl. at 18, ajf'd, 534 F. App'x 983. Therefore, the issue

presented is whether "the second claim is based on the same set of transactional facts as the

first." Jet, Inc., 223 F.3d at 1362.

In Shelkojsky I, Plaintiff disputed the AFBCMR's decision not to modify the method in

which he was compensated after separation from the military. See Shelko/sky II, 534 F. App'x at

987. The transactional facts in that case arose from the same events relevant here, i.e., Plaintiff

was separated from the Air Force in 2000 with a 20 percent disability rating; the July I 0, 2000

separation notice informed Plaintiff that he could either select to be placed on the ISL and wait

for age 60 retirement eligibility or receive a severance pay option. See Shelko/sky II, 534 F.

App'x at 984. Neither option, however, entitled Plaintiff to receive immediate monthly

payments from the Government after initial election of the Disability Severance Pay, albeit by

the Government's error. Id. Plaintiff, therefore, was transferred to the PRDL, where for seven

years he collected monthly disability checks that were terminated in 2009. Com pl. n

4-10.

Therefore, when Plaintiff filed the Complaint in Shelkojsky I in 2011, Plaintiff had at least two

years notice that no benefits were being awarded.

Although Plaintiff contends that "[D]isability [R]etire[ment] [P]ay and [D]isability

[S]everance [P]ay are distinct from retirement at age 60," that fact does not preclude the court

from findinf that Plaintiffs Disability Retirement Pay and Disability Severance Pay claims are

precluded. 1 Claim preclusion bars claims in a second suit arising from the same set of

11

In Shelko/sky I, Plaintiff "seem[ed] to want either reserve retirement pay or disability

retirement pay[,]" but "he d[id] not seek severance pay." 110 Fed. Cl. at 17. But, Plaintiff did

not articulate a claim for Disability Retirement Pay in his November 14, 2011 Complaint. Id. at

18. Nevertheless, the proper inquiry is not whether Plaintiff sought Disability Retirement Pay or

Disability Severance Pay as relief in Shelko/sky I, but rather whether Plaintiffs Complaints arise

from the same set of operative facts.

13

transactional facts, not the legal basis nor the arguments, in the first suit. See, e.g., United

States v. Tohono 0 'Odham Nation, 131 S. Ct. 1723, 1731 (2011) ("Two suits are for or in

respect the same claim, precluding jurisdiction in the [United States Court of Federal Claims], if

they are based on substantially the same operative facts, regardless of the relief sought in each

suit."); see also Foster v. Hal/co Mfg. Co., 947 F.2d 469, 478 (Fed. Cir. 1991) ('"[C]laim' does

not mean merely 'argument' or 'assertion,"' but "is used in the sense of the facts giving rise to

the suit."); Aleyska Pipeline Serv. Co. v. United States, 688 F.2d 765, 769 (Ct. Cl. 1982)

("[C]laim splitting cannot be justified on the ground that the two actions are based on different

legal theories[.]").

Because Plaintiff's Disability Retirement Pay and Disability Severance Pay claims arose

from the same core operative facts as those alleged in Sheljkofsky I, these claims are barred by

claim preclusion.

IV. CONCLUSION.

For these reasons, the Government's April 25, 2014 Motion to Dismiss is granted. See

RCFC 12(b)(I), 12(b)(6). Accordingly, the Clerk is directed to dismiss the December 23, 2013

Complaint.

IT IS SO ORDERED.

susANIG:BRADEN

Judge

Moreover, in Shelko/sky I, the court observed that its review of Plaintiff's Disability

Retirement Pay claim was limited to the AFBCMR's decision and the Administrative Record.

See Shelko/sky, 110 Fed. Cl. at 18. Precedent limits judicial review by this court to the

AFBCMR's decision under a deferential standard: whether the decision was "arbitrary,

capricious, unsupported by substantial evidence, or contrary to law." Lewis v. United States, 458

F.3d 1372, 1376 (Fed. Cir. 2006)(citing Martinez, 333 F.3d at 1314). Even if this claim survives

claim preclusion, which it does not, the court can neither review material that Plaintiff did not

first present to the AFBCMR, nor find that the AFBCMR's decision was "arbitrary, capricious,

unsupported by substantial evidence, or contrary to law." See Shelko/sky I, 110 Fed. Cl. at 18

(internal citations omitted).

14