Fournier v. United States

In the United States Court of Federal Claims

No. 14-126C

This Opinion Will Not Be Published in the U.S. Court of Federal Claims Reporter Because It

Does Not Add Significantly to the Body of Law.

(Filed: February 2, 2015)

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RICHARD FOURNIER, *

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*

Plaintiff,

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v. *

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THE UNITED STATES, *

Defendant. *

*

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OPINION AND ORDER

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ALLEGRA, Judge:

Defendant has moved to dismiss plaintiff’s complaint under RCFC 12(b)(1), asserting

that this suit is barred by the application of the statute of limitations found in 28 U.S.C. § 2501.

Argument on this motion is unnecessary. For the reasons that follow, the court GRANTS

defendant’s motion.

I. BACKGROUND 1

On April 15, 1960, plaintiff, Richard Fournier, enlisted in the United States Navy (the

Navy). On June 9, 1965, plaintiff underwent a psychiatric exam at the United States Naval

Hospital, Jacksonville, Florida. The Consultation Report following the exam included two

impressions: schizoid personality and paranoid trend. Plaintiff was also provisionally diagnosed

with “immature personality,” and was recommended for an administrative discharge. On June

1

These facts are primarily drawn from plaintiff’s complaint and, for the purpose of this

motion, are assumed to be correct. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 589 (2007).

23, 1965, the Navy recommended that plaintiff be honorably discharged by reason of

unsuitability due to “inadequate personality disorder.”

On July 16, 1965, plaintiff was discharged from the Navy. As part of his discharge,

plaintiff received a DD 214 discharge certificate. Block 11a of the DD 214 discharge certificate

stated that the “reason for discharge was not to be shown.” However, Block 11a also included

“Code 464,” a separation code reflecting a schizoid personality.

In 1988, plaintiff petitioned the United States Navy Board for Correction of Naval

Records (BCNR) requesting that his administrative discharge be reclassified as a medical

discharge due to a head injury plaintiff suffered in 1961. Plaintiff additionally asserted that he

should have been afforded a medical board prior to discharge to determine his fitness for duty.

On February 24, 1989, the BCNR denied plaintiff’s petition; on October 6, 2009, the BCNR

denied plaintiff’s second request.

On February 12, 2014, plaintiff filed a complaint in this court. On March 24, 2014,

defendant filed a motion to dismiss the complaint pursuant to RCFC 12(b)(1). The motion is

fully briefed.

II. DISCUSSION

Deciding a motion to dismiss “starts with the complaint, which must be well-pleaded in

that it must state the necessary elements of the plaintiff’s claim, independent of any defense that

may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997); see also Bell

Atl. Corp., 550 U.S. at 554-55. In particular, the plaintiff must establish that the court has

subject matter jurisdiction over its claims. Trusted Integration, Inc. v. United States, 659 F.3d

1159, 1163 (Fed. Cir. 2011); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.

Cir. 1988).

The statute of limitations for claims filed in this court is contained in 28 U.S.C. § 2501,

which provides: “Every 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.” This requirement is jurisdictional, meaning that compliance with it is a condition

of the government’s waiver of sovereign immunity. John R. Sand & Gravel Co. v. United States,

552 U.S. 130, 133-34 (2008); Martinez v. United States, 333 F.3d 1295, 1316 (Fed. Cir. 2003),

cert. denied, 540 U.S. 1177 (2004); Petro-Hunt, L.L.C. v. United States, 90 Fed. Cl. 51, 58

(2009). Under this statute, a claim accrues when ‘“all events have occurred to fix the

Government’s alleged liability,’” and the plaintiff knew or should have known of the existence

of his claim. Martinez, 333 F.3d at 1303 (quoting Nager Elec. Co. v. United States, 368 F.2d

847, 851 (Ct. Cl. 1966)); see also San Carlos Apache Tribe v. United States, 639 F.3d 1346,

1358-59 (Fed. Cir. 2011); Hart v. United States, 910 F.2d 815, 817-18 (Fed. Cir. 1990).

Plaintiff was discharged from the Navy in 1965, approximately fifty years before the

filing of his complaint. The decision to seek review from a military correction board does not

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toll this running of the statute of limitations nor does an adverse decision by a board create a new

statute of limitations. Hurick v. Lehman, 782 F.2d 984, 987 (Fed. Cir. 1986). Plaintiff’s

complaint suggests that his suit, nonetheless, is timely based on his discovery in 2009 of

assertions that allegedly impact his case. However, it is well-accepted that discovery of a new

legal theory does not impact the accrual of a claim for purposes of this court’s six-year statute of

limitations. See Catawba Indian Tribe of S.C. v. United States, 982 F.2d 1564, 1572 (Fed. Cir.),

cert. denied, 509 U.S. 904 (1993). It is, rather, “a plaintiff’s knowledge of the facts of the claim

that determines the accrual date.” Young v. United States, 529 F.3d 1380, 1385 (Fed. Cir. 2008),

cert. denied, 555 U.S. 1214 (2009); see also Eden Isle Marina, Inc. v. United States, 113 Fed. Cl.

372, 482 (2013); Stanley v. United States, 107 Fed. Cl. 94, 99 (2012) (discussing the application

of the accrual suspension rule). And that date, as noted, occurred decades ago, with no

indication whatsoever that the Navy ever attempted to conceal from plaintiff the reason for his

discharge. Accordingly, the court concludes that plaintiff’s case is time-barred. 2

Accordingly, based on the foregoing, the court finds that plaintiff’s claim is not timely

under the six-year statute of limitations provided by section 2501.

III. CONCLUSION

The court need not gild the lily. Based on the foregoing, the court concludes that it must

GRANT defendant’s motion to dismiss plaintiff’s complaint under RCFC 12(b)(1). The Clerk

shall dismiss the complaint.

IT IS SO ORDERED.

s/Francis M. Allegra

Francis M. Allegra

2

Even if the impact of the statute of limitations here were different – which it is not – the

court would lack jurisdiction over plaintiff’s complaint as he is not seeking pay within the scope

of the Military Pay Act, 37 U.S.C. § 204. In particular, plaintiff does not challenge that he was

properly discharged by the Navy and that his resignation was voluntary. See House v. United

States, 99 Fed. Cl. 342, 347-48 (2011), aff’d, 473 Fed. Appx. 901 (Fed. Cir. 2012).

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