Leonard v. United States

Jfn tbe Wniteb ~tates QCourt of jfeberal QCiaitns

No. 15-704C

(Filed: September 19, 2016)

NOT FOR PUBLICATION FILED

SEP 1 9 2016

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

U.S . CO URT OF

FEDERAL CLAIMS

PATRICIA A. LEONARD,

Military Pay; Statute of Limitations;

Plaintiff, Claim Accrual

v.

THE UNITED STATES,

Defendant,

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

Patricia A. Leonard, Lynnwood, WA, pro se.

Jana Moses, Trial Attorney, Commercial Litigation Branch, Civil

Division, Department of Justice, Washington, DC, for defendant, with whom

were Berzjamin C. Mizer, Principal Deputy Assistant Attorney General, Robert

E. Kirschman, Jr., Director, Douglas K. Mickle, Assistant Director. Patrick

McGrath, Litigation Attorney, U.S. Army Legal Services Agency, of counsel.

OPINION

BRUGGINK, Judge .

Plaintiff, Major Patricia A. Leonard, USA, Retired, who appears prose,

alleges in her complaint, inter alia, that the Army improperly denied her both

a promotion to Lieutenant Colonel (0-5) and disability retirement benefits.

Pending is defendant's motion to dismiss for lack of jurisdiction. For the

reasons set out below, defendant's motion is granted.

BACKGROUND

Plaintiff served twenty-two years in the active reserve as well as

fourteen years as an Army civilian. Plaintiff was diagnosed with multiple

personality disorder and major depressive disorder by a Medical Evaluation

Board ("MEB") in October of 1993. The MEB determined that plaintiffs

conditions were such that she could return to duty with coinciding care, and

an informal Physical Evaluation Board ("PEB ") agreed with the MEB 's

findings one month later. In February 1994, a formal PEB concluded that

plaintiffs medical conditions were service-aggravated and granted her a

seventy percent disability rating.

Plaintiff then sought a modification of the formal PEB 's decision in an

attempt to add an additional fifty percent rating due to her migraine headaches.

A second formal PEB reconsidered plaintiffs entire case and concluded that

her conditions developed naturally and were not related to her military service.

As a result, the second PEB denied plaintiff the disability retirement that the

original PEB granted her. The Physical Disability Agency affirmed the second

PEB's decision in August 1994, and the Secretary of the Army approved the

Physical Disability Agency's determination in May 1995. Plaintiff was

released from active duty on June 26, 1995 at the rank of Major.

On November 29, 1993, plaintiff was selected for promotion to

Lieutenant Colonel. In early February 1994, President Clinton approved a

nomination list that included plaintiffs promotion, and the Senate confirmed

the list a few days later. Plaintiff, however, never received her promotion

orders. From 1996 to 2009, plaintiff submitted six requests to the Army Board

for Correction of Military Records ("ABCMR") seeking a promotion to

Lieutenant Colonel and disability compensation. The ABCMR acknowledged

errors in plaintiffs military records and issued corrected documents but

ultimately denied each request. Plaintiff began receiving military retired pay

as a Major when she turned sixty on February 16, 2009.

DISCUSSION

Pro se plaintiffs are afforded latitude in their filings, see, e.g., Henke

v. United States, 60 F .3d 795, 799 (Fed.Cir. 1995), and are entitled to a liberal

construction of their pleadings, see Haines v. Kerner, 404 U.S. 519, 520

2

(1972) (requiring that allegations contained in a pro se complaint be held to

"less stringent standards than formal pleadings drafted by lawyers"). That

said, the pro se plaintiff is not relieved of her duty to meet the court's

jurisdictional requirements. See Henke, 60 F.3d at 799. Before the court

considers the merits of a complaint, it must determine the threshold matter of

subject-matter jurisdiction. See Steel Co. v. Citizens for a Better Env 't, 523

U.S. 83, 94-95 (1998). Because we are deciding a motion to dismiss, we

construe the allegations in the complaint in the light most favorable to plaintiff

and assume all unchallenged factual allegations to be true. See, e.g., Henke v.

United States, 60 F.3d 795, 797 (Fed. Cir. 1995).

This court's primary source of jurisdiction is the Tucker Act, which

grants jurisdiction over certain claims seeking money damages from the United

States. See 28 U.S.C. § 149l(a)(l) (2012). All claims brought under the

Tucker Act are subject to a six-year statute of limitations. 28 U.S.C. § 2501.

Accordingly, for this court to entertain plaintiffs suit, she must have filed

within six years after her claim accrued. As a general matter, a claim accrues

"when all the events have occurred that fix the alleged liability of the

government and entitle the claimant to institute an action." Ingrum v. United

States, 560 F.3d 1311, 1314 (Fed.Cir. 2009) (citing Alliance a/Descendants

of Tex. Land Grants v. United States, 37 F.3d 1478, 1481 (Fed.Cir. 1994)).

Plaintiff asserts a claim for wrongful denial of a promotion and associated

back pay as well as a claim for disability compensation. We consider each of

plaintiffs claims in turn.

Defendant argues that plaintiffs claim seeking a promotion and

associated back pay accrued on June 26, 1995, the date of her release from

active duty. In her complaint, plaintiff seeks promotion orders to Lieutenant

Colonel effective June 27, 1995, and back pay from February 16, 2009, when

she began receiving retired pay as a Major. In plaintiffs opposition to

defendant's motion to dismiss, she argues that the statute oflimitations did not

start running on the date she was separated from active duty because she was

not able to receive any pay until the date of her retirement.

Whatever merit there is in plaintiffs argument, she still runs afoul of

the six-year statute of limitations. At the very latest, plaintiffs claim accrued

when she turned sixty and began receiving retirement pay on Februaryl6,

2009. This is the latest arguable date in which all events occurred that fixed the

government's potential liability for a wrongful denial of a promotion. Plaintiff

filed her complaint on July 7, 2015, and the statute of limitations ran, at the

3

latest, on February 16, 2015. As a result, we do not have jurisdiction to hear

plaintiffs claim for failure to promote.

Plaintiff also argues that her claim accrued on November 14, 2011,

because this is the date that the value of her claim reached $10,000. This

argument is unavailing. There is not a jurisdictional minimum for this court.

The Court of Federal Claims has concurrent jurisdiction with the United States

District Courts over claims against the United States "not exceeding $10,000

in amount." 28 U.S.C. § 1346(a)(2). Moreover, the dispositive date for the

purposes of the statute of limitations is the date the claim accrued and not the

date the value of the claim reaches a certain amount.

We also do not have jurisdiction over plaintiffs disability rating claim.

This claim accrued in 1994, well outside the six-year statute of limitations,

and, in any event, has already been decided. See Leonard v. United States, No.

95-817 (Fed. Cl. Aug. 15, 1996).

CONCLUSION

Because plaintiffs claims are too late, we grant defendant's motion to

dismiss for lack of subject-matter jurisdiction. The clerk is directed to dismiss

the complaint and enter judgment accordingly. No costs.

§;B~~

Senior Judge

4