Garcia-Gines v. United States

In the United States Court of Federal Claims

No. 16-‘16220

Fiied: April 14, 2017 FlLED

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* US.COURTOF

NI|GUEL A. GARC|A-G|NES, * FEDEP.AL CLAilviS

P| ' t'ff, * _ _ , _ _

am ' t Ilililltary Dlsabl|lty Retlrement Pay;

v. * Nlotion to Dismiss; Subject Nlatter

* Jurisdiction; Statute of Limitations;

* EQ is-

UN|TED STATES, *

Defendant.

'k * 'k * * *k 'k * * * 1\' 'k * *k

Nligue| A. Garcia-Gines, gr_o Y, Oca|a, F|a.

Joshua E. Kur|andl Trial Attorney, Commercia| Litigation Branch, Civii Division,

United States Department of Justice, Washington, D.C., for defendant. VVith him was

Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and Chad A.

Read|er, Acting Assistant Attorney Genera|, Civi| Division, Department of Justice,

VVashington, D.C. Of counsel vvas Maj. Patrick Nchrath, Litigation Attomey, |Vii|itary

Personne| LaW Branch, United States Army Lega| Services Agency.

OPlNlON

HORNl J.

FIND|NGS OF FACT

39 Y plaintiff, |V|iguel Garcia-Gines, a former servicemember in the United States

Army (Army) filed the above-captioned complaint in this court on December 7, 2016,

seeking to change his discharge vvith severance pay to permanent disability retirement

due to injuries sustained during active military service, to increase his disability

percentage rating to equal 30 percent or more, and to recover monetary relief. P|aintiff

seeks “monetary relief1 and military medical retirement pay benefits against the United

States Army for disabilities of a permanent nature in relation to medical injuries that Were

manifested and sustained during active military service.” According to his complaintl

plaintiff suffered “combat-related injuries (Whip|ash) to the front of the head, neck, and

'?|]LLi LEUU |J|J[l|] l=l[]‘:lEl 'PUBE

back" on danuary 11, 1991, which caused him to have “short term memory ioss,

cerebrospinai fluid leak, and periods of unconsciousness during the Persian Gu|f War.”

Defendant has moved to dismiss piaintiff’s complaint pursuant to Ruie 12(b) of the Rules

of the United States Court of Federal Ciairns (RCFC) for tack ofjurisdiction.

in his complaint plaintiff asserts that he “firstjoined the miiitary on l\/larch 1, 1972,

had two breaks in service, and served over 19 years of honorabie military service in

combination with the Air i\iational Guard and inactive Reserve.” According to documents

submitted to the court by both parties, it appears that plaintiff was active in military service

from i\/iarch 1, 1972 to February 22, 1974, and iVlay 20, 1974 to May 19, 1977, and

September 29, 1983 to iV|ay 3, 1995.j Plaintiff alleges that he suffered “a head injury to

the front of the head” on January 11, 199i during active military service when he was

involved in a vehicular collision According to plaintiff, he was traveling as a passenger in

a “two and one-half ton truck" that was “rammed from the rear at a high rate of speed by

a Saudi truck causing the plaintiff injuries not only to the head1 neck, and back but also

short term memory loss and leakage of spinal brain fluid through the nose." After the

collision, plaintiff was diagnosed with degenerative joint disease of the lumbar spine

Approximately four years after the incident, on Niay 3, 1995, plaintiffwas discharged from

active service due to physical disability

Prior to his discharge from the Armyl plaintiff's medical condition was reviewed by

a medical evaluation board (i\/IEB) and by an informal physical evaiuation board (PEB).

On December15, 1994, the lViEB determined that plaintiff had “Degenerativejoint disease

of the lumbar spine," with an approximate date of origin in “Dec 1991.” The lViEB

determined that plaintiff was unfit for continued military service. P|aintiff signed “DA

FORM 3947,” stating that he had been informed of the approved findings and

recommendation of the l\/lEB and that he agreed with the iVlEB’s findings and

recommendation The iViEB referred plaintiff to a PEB.

in a decision issued on January 3, 1995, an informal PEB described plaintiffs

disabiiities as fo|iows:

Degenerative joint disease of iumbar spine, progressive symptomoiogy

since motor vehicle accident Dec 1991 in Saudi Arabia.

Your functional limitations in maintaining the appropriate level of mobility

and agility, caused by the physical impairments recorded above, make you

unfit to perform the duties required of a SSG in your lVlOS ofa Fire Support

Forward Observer.

1 in considering defendants motion to dismiss, the court considered the administrative

record, including ai| evidence relevant to the jurisdictional facts alleged in the complaint

See Banks v. United States, 741 F.3d 1268, 1277 (Fed, Cir. 2014) ("ifa motion to dismiss

for lack of subject matter jurisdiction . . . challenges the truth of the jurisdictional facts

alleged in the complaintl the district court may consider relevant evidence in order to

resolve the factual dispute.”).

it is noted that your disability rating is less than 30 percent For soldiers with

a disability rating of less than 30 percent and with less than 20 years of

servicel AR 635-40 requires separation from service with severance pay.

'i'he Board finds that your condition occurred in the line of duty, not due to

your own misconduct

Since you have service-connected medical conditions, you should contact

a Veterans Administration counselor to learn about available benefits such

as disabiiity compensation, rehabilitation programs, insurance programs,

employment assistance, home loans, and medical care benefits

The informal PEB concluded that plaintiff was physically unfit and recommended a

combined disability rating of 20 percent and that piaintiff’s disposition be characterized as

“Separation with severance pay if othenivise quaiified."

The informal PEB also made the foliowing “RECOIV||V|ENDED Fll\iDiNG":

A. THE lVlElVlBER'S RET|RE!V|ENT lS NOT BASED ON DlSAB|i_lTY

FROl\/l lNJURY OR DlSEASE RECE|VED |l\i THE L|NE OF DUTY AS

A DlRECT RESULT OF AR|VIED CONFL|CT OR CAUSED BY AN

lNSTRUl\/lENTALiTY OF WAR AND lNCURRED lN LiNE OF DUTY

DUR|NG A PER|OD OF VVAR AS DEFENED BY L./-\VV.

B. E\/|DENCE OF RECORD REFLECTS THE iNDlViDUAL VVAS NOT A

lVlElViBER OR OBL|GATED TO BECOl\/iE A |VlEi\/lBER OF Al\l ARi\/iED

FORCE OR RESERVE THEREOF. . . ON 24 SEPTEMBER 1975.

C. THE DiSABil_iTY D|D NOT RESULT FRO|V| A CO|VlBAT REi_ATED

lNJURY AS DEF|NED lN 26 U.S.C. 104.

Plaintiff concurred with the informai PEB’s findings and recommendations On January 5,

19951 plaintiff signed a forrn indicating that he had been advised of the findings and

recommendations of the informal PEB and had received a fuli explanation of the results

of the findings and recommendations and legal rights that pertained to the informal PEB

decision Plaintiff signed a form stating “l CONCUR AND V\IA|VE A FOR|V|AL HEAR|NG

OF iVlY CASE." The informal PEB findings and recommendations were approved by the

Secretary of the Army on January 6, 1995.

As a result of the lViEB and informal PEB proceedings, plaintiff was discharged

from active duty service due to physical disability on i\/iay 3, 1995. P|aintiff's discharge is

described on his DD Form 214, which states that his discharge Was honorable and the

reason for separation is “DiSABlL|TY, SEVERANCE PAY.” The DD Form 214 includes a

description of plaintiffs record of service and explains that plaintiffs “Net Active Service

This Period” was 11 years, 7 months, and 5 days. The DD Form 214 also explains that

plaintiffs “Totai Prior inactive Service” was 2 months and 28 days.

Approximately 1'i years after plaintiff was discharged from the Army due to his

physical disability, on September 14, 2006, plaintiff filed a request with the Army Board

for Correction of lViiiitary Records (ABC|V|R) to change his DD Form 214 from “Disabiiity

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Severance Pay to Permanent Retirement." Piaintiff also requested a change to his

disability rating and asserted that “the percentage granted on the DA Form 199 is unfair

and unjustifiable . . . in his request to the ABCiVIR, plaintiff acknowledged the lapse in

time between his discharge and his request to change his military records: “i understand

that a prolonged period of time has elapsed since the statement was issued1 but l am

pleading to you to uphold the name ofjustice due to a combat veteran who was dedicated

to the mission first at ali times." On April 12, 2007, the ABCi\/iR notified piaintiff, in a letter,

that his request to change his medical separation with severance pay to a medical

disability retirement had been denied on Aprii 5, 2007. in its denial decision, the ABCl\/iR

explained that "Titie 10, U.S. Code, Section 1552(b), provides that applications for

correction of military records must be filed within 3 years after discovery of the alleged

error or injustice” and that the ABCi\/iR can “excuse failure to file within the 3-year statute

of limitations if the ABClViR determines that it would be in the interest ofjustice to do so.”

The ABC|VIR explained that plaintiff did not file his request for correction of his military

records Within the three-year statute of limitations and “that the evidence presented does

not demonstrate the existence of a probable error or injustice." The ABCMR determined

that “there is no evidence provided which shows that it would be in the interest ofjustice

to excuse the applicants failure to timely file this application Within the 3-year statute of

iimitations prescribed by law." The April 12, 2007 letter that informed piaintiff of the

ABCi\/lR’s denial decision expiained, “[t]his decision in your case is finai. You may request

reconsideration of this decision within one year only if you can present new evidence or

argument that was not considered by the Board when it denied your original application."2

2 Separate from plaintiffs request to upgrade his retirement characterization on his DD

Form 214, on January 7, 2009, plaintiff filed a second application for correction of his

military records on the basis that his military personnel fite did not accurately describe

plaintiffs total time in service Plaintiff asserted: “iViY TOTAl_ i\/iiLiTARY SERVICE WAS

NOT ADDED CORRECTLY AT THE Til\/iE OF DiSCHARG-E l VVAS BE|NG SEPARATEE)

iViED|CALLY AND DUE TO HEAD TRAUl\liA AND VARiOUS OTHER lNJURiES iV\iAS

UNABLE TO GATHER Al_L OF l\fi‘( i\/ilLiTARY DOCUl\/iENTATiON `l'O COMPUTE

CORRECT DATA.” On lViay 13, 2009, the ABCi\/iR notified plaintiff that his request was

granted to correct his totai time in service on his DD Form 214, and the ABCl\/iR noted

that plaintiff did not file within the three-year statute of iirnitations. Notwithstanding the

lateness of plaintiffs request the ABCi\/lR determined "it is in the interest of justice to

excuse the applicants failure to timely fi|e" in order to correct his records with regard to

“the computation of the applicants total service." The ABCi\/lR determined that at the

time he was discharged from the Armyl plaintiffs DD Form 214 incorrectly refiected only

two months and 28 days of total prior inactive service, When, in fact plaintiff plaintiffs total

prior inactive service was two years1 seven months, and 21 days total. Accordingiy, the

ABCi\/iR recommended that “ail Department of the Army records of the individual

concerned be corrected by amending item 12e on his DD Form 214 for the period ending

3 i\/iay 1995 to show 2 yearsl 7 months, and 21 days total prior inactive service." On

August 18, 2009, the Army notified plaintiff that his records had been corrected in

accordance with the ABCMR decision

On January 15, 2010l plaintiff filed another request to the ABC|V|R for the

correction of his military records seeking to change his discharge characterization on his

DD Form 214 “to read (‘Retirement Disability Permanent’[’] . . . with the appropriate

medical retirement percentage . . The ABCi\/lR considered plaintiffs request as an

untimely request for reconsideration of the ABCiVlR‘s April 5, 2007 decision denying

plaintiffs simiiar request on September 14, 2006. On June 9, 20101 the ABCMR notified

plaintiff that “[t]he staff of the ABCIV|R reviewed your request and determined that it was

a request for reconsideration and that your request for reconsideration was not received

within one year of the ABC|\/|R’s original decision” on April 5, 2007. The June 9, 2010

letter to plaintiff stated that “[t]he ABCi\/lR wili not consider any further requests for

reconsideration of this matter. However, you have the option to seek relief in a court of

appropriate jurisdiction”

Shortiy after the ABCi\/iR’s letter to plaintiff on June 9, 2010, plaintiffs spouse sent

a letter on June 17, 2010 also seeking reconsideration of plaintiffs case “due [to]

extenuating circumstances that caused a lapse in time for the filing” of plaintiffs request

to correct his military records The ABCi\/iR responded to plaintiffs wife in a letter on

December 13, 2010l which explained that the ABC|V|R's decision on June 9, 2010 "was

the final administrative action taken by the Secretary of the Army. There is no further

action contemplated by the ABCMR since he [plaintifi] is not eligible for further

reconsideration by this Board.” in this ietter, the ABCi\/iR indicated, again, that it would

not consider any further requests for reconsideration and that plaintiff had the option to

seek relief in a court of appropriate jurisdiction

On September 9, 2014, plaintiff submitted another request to the ABCl\/iR seeking

to change his discharge to a retirement due to permanent disability and to increase his

disability percentage rating. in response, the ABCN|R sent plaintiff a letter on September

25, 2014 explaining that plaintiffs request was considered by the ABCMR in Apri| of 2007

and that plaintiff had previously requested reconsideration of the Aprii 2007 decision in

2010. Simiiar to the ABCNIR’s letters to plaintiff on June 9, 2010 and December13, 20’i0,

the September 25, 2014 ietter to plaintiff explained that the decision denying

reconsideration of piaintiffs request was the final administrative action and that no further

action would be contemplated by the ABC|V|R. The September 25, 2014 letter stated that

the ABCl\/iR would not consider further requests for reconsideration and that plaintiff had

the option to seek relief in a court of appropriate jurisdiction

Approximately two years after the ABCMR’s September 25, 2014 letter, and

approximately 20 years after his discharge frorn the Army, piaintiff filed his complaint in

this court seeking "compensatory damages in the sum of $238,724.90 and additional

cost-of living adjustments increases,” as weil as an “[i]ncrease in medical percentages to

equal 30 percent or more and military retirement benefits in accordance with Veterans

Affairs Scheduie for Rating Disabilities and related precepts iaws, and army regulations."

in this court plaintiff also requests that his “final separation document DD Form 214 is

corrected to read: Type of Separation Retirement and Narrative Reason for Separation:

Disabiiity.” (emphasis in original). in his complaint plaintiff asserts that "iVlilitary and

Physical Eva|uation Board proceedings at time of discharge failed to abide by Army

Reguiations by not correctly adding his total time in service and by stating on his Physicai

Evaiuation Board proceedings that he was not in the military before September 241 1975,

5

and combat-related injuries Were not incurred in line of duty during a time of national

emergency after September 14, 1978." Piaintiff also alleges that his “injuries were ‘passed

over’ from the i\/iedicai Eva|uation Board and Physicai Evaiuation Board Proceedings

because medical personnel only concentrated their medical efforts and analysis on the

plaintiffs back injury." According to piaintiff, at the time he was discharged from the Army,

he “did not receive any type of direct legal counseling and advice from the Chain-of-

command and was in poor physical and mental condition.” Plaintiff asserts that “[t]he last

final administrative action with the Army Review Board was on September 25l 2014,"

when as noted above1 the ABCl\/iR stated that it would not consider any future request

from piaintiff and that piaintiff had the option of seeking relief in court

Defendant has moved to dismiss plaintiffs complaint pursuant to RCFC 12(b)(1)

for tack of`subject matter jurisdiction because plaintiffs claims fall outside the six-year

statute of limitations set forth in 28 U.S.C. § 2501 (2012), and, therefore, are time-barred

Defendant points out that the applicable statute of limitations is jurisdictional and may not

be waived because it implicates the waiver of sovereign immunity Defendant argues that

in the context of claims seeking disability retirement pay, the claim must be filed in this

court within six years of a plaintiffs discharge when at the time of discharge, an

appropriate board has already heard and denied plaintiffs claim for disability P|aintiff filed

an opposition to defendants motion to dismiss that reiterates the allegations in piaintiffs

complaint and argues that his claims fall within the six-year statute of limitations because

“his claim did not come into existence until the Army Correction Boards and Secretary of

the Army rendered its final administrative action on September 25, 2014."

DISCUSSEON

The court recognizes that plaintiff is proceeding mg §_e__, without the assistance of

counsel. When determining Whether a complaint filed by a pr_c_) §§ piaintiff is sufficient to

invoke review by a court p_Lg § plaintiffs are entitled to liberal construction of their

pleadings See Haines v. Kerner, 404 U.S. 519l 520-21 (requiring that allegations

contained in a ppg §§ complaint be held to “iess stringent standards than formal pleadings

drafted by lawyers”), re_h'g denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551

U.S. 89, 94 (2007); i-iughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estel|e v. Gamble, 429

U.S. 97, 106 (1976), r_e_hlgdenied, 429 U.S. 1066 (1977); i\/latthews v. United States, 750

F.3d 1320, 1322 (Fed. Cir. 2014); Diamond v. United States, 115 Fed. Ci. 516, 524, a_ff’_d,

603 F. App'x 947 (Fed. Cir.), cert denied 135 S. Ct. 1909 (2015). “However, “‘[t]here is

no duty on the part of the trial court to create a claim which [the piaintifl] has not spelled

out in his [or her] pieading."”’ Lenqen v. United States, 100 Fed. Cl. 317, 328 (2011)

(aiterations in original) (quoting Scodin v. United States, 33 Fed. Cl. 285, 293 (1995)

(quoting Clark v. Nat’| Travelers Life lns. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see

also Bussie v. United States, 96 Fed. Cl. 89, 941 a_ffl:i_, 443 F. App’x 542 (Fed. Cir. 2011);

i\/iinehan v. United States, 75 Fed. Ci. 249, 253 (2007). “VVhiie a p[g §§ plaintiff is held to

a less stringent standard than that of a plaintiff represented by an attorney, the p_ro_ se

piaintiff, nevertheless bears the burden of establishing the Court’s jurisdiction by a

preponderance of the evidence.” Riles v. United States, 93 Fed. Ci. 163, 165 (2010)

(citing i-iughes v. Rowe, 449 U.S. at 9 and Tavlor v. United States, 303 F.3d 1357, 1359

(Fed. Cir.) (“Plaintiff bears the burden of showing jurisdiction by a preponderance of the

evidence.”), reh’q and reh'g § banc denied (Fed. Cir. 2002)); see also Sheikofskv v.

6

United States, i19 Fed. Cl. 'i33, 139 (2014) (“[VV]hiie the court may excuse ambiguities

in a pro se plaintiffs complaint the court ‘does not excuse [a complaint’sj failures.’"

(quoting Henke v. United States 60 F.3d 795, 799 (Fed. Cir. 1995)); Harris v. United

States, 1l3 Fed. Cl. 290, 292 (2013) (“Although plaintiffs pleadings are held to a less

stringent standard, such leniency ‘With respect to mere formalities does not relieve the

burden to meetjurisdictional requirements.’" (quoting l\/linehan v. United States, 75 Fed.

C|. at 253)).

in i\/ir. Garcia-Gines’ casel as noted above, defendant has moved to dismiss

plaintiffs complaint pursuant to RCFC 12(b)(1) and argues that this court does not have

subject matter jurisdiction to consider plaintiffs complaint because it is time-barred

Plaintiff, however, alleges that this court has jurisdiction to consider his claim pursuant to

“28 U.S.C.§1491(a)(1)(2)(2006), 10 U.S.C. § 1201 (a)(b) (2006), and 37 U.S.C. §204(a)-

(d) (2006).”

in considering defendants motion to dismiss plaintiffs complaint for lack of subject

matterjurisdiction pursuant to RCFC 12(b)(1), the court presumes all undisputed factual

aliegations to be true and construes all reasonable inferences in plaintiffs favor. §§

l\/liller v. United States, 119 Fed. Cl. 7i7, 724 (2015). As the plaintiff, however, lVir. Garcia-

Gines has the burden of proving that this court has subject matterjurisdiction and that his

claim is timely See Banks v. United States, 741 F.3d at 1277 (“ln such cases, the plaintiff

has the burden of proving subject matter jurisdiction by a preponderance of the

evidence.”).

it is well estabiished that “‘subject-matterjurisdiction because it involves a courts

power to hear a case, can never be forfeited or waived.’" Arbauqh v. Y & i-i Corp., 546

U.S. 500, 514 (2006) (quoting United States v. Cotton 535 U.S. 625, 630 (2002)).

"[Fjederai courts have an independent obligation to ensure that they do not exceed the

scope of their jurisdiction and therefore they must raise and decide jurisdictional

questions that the parties either overlook or elect not to press.” l~ienderson ex re|.

Henderson v. Shinseki, 562 U.S. 428l 434 (2011); see also Gonzalez v. Thaler, 132 S.

Ct. 641, 648 (2012) (“When a requirement goes to subject-matterjurisdiction courts are

obligated to consider sua sponte issues that the parties have disclaimed or have not

presented.”); l-iertz Corp. v. Friend, 559 U.S. 771 94 (2010) (“Courts have an independent

obligation to determine whether subject-matter jurisdiction exists, even when no party

chai|enges it” (citing Arbauoh v. Y & l-i Corp., 546 U.S. at 514)); Speciai Devices, inc. v.

OEA lnc., 269 F.3d 1340l 1342 (Fed. Cir. 2001) ("{A] court has a duty to inquire into its

jurisdiction to hear and decide a case." (citing Johannsen v. Pav Less Druq Stores N.ii\l'g

ingl 918 F.2d i60, 161 (Fed. Cir. 1990)); View Enq’q, lnc. v. Robotic Vision Sys.. lnc,,

115 F.3d 962, 963 (Fed. Cir. l997) (“[C]ourts must always look to their jurisdiction

whether the parties raise the issue or not.”). “Objections to a tribunai’s jurisdiction can be

raised at any time, even by a party that once conceded the tribunal’s subject-matter

jurisdiction overthe controversy” Sebelius v. Auburn Req’i i\/ied. Ctr., 133 S. Ct. 817, 824

(2013); see also Arbauqh v. ‘r’ & H Corp., 546 U.S. at 506 ("The objection that a federal

court lacks subject-matterjurisdiction . . . may be raised by a party, or by a court on its

own initiative at any stage in the litigation even after trial and the entry of judgment.”);

Cent. Pines Land Co., L.L,C. v. United States, 697 F.3d 1360l 1364 n.1 (Fed. Cir. 2012)

(“An objection to a courts subject matter jurisdiction can be raised by any party or the

7

court at any stage of iitigation, including after trial and the entry of judgment.” (citing

Arbauqh v. Y & H Corp., 546 U.S. at 506-07)); Rick’s i\/iushroom Serv., inc. v. United

States, 52l F.3d 13381 1346 (Fed. Cir. 2008) (“[A]ny party may ohalienge, or the court

may raise sua sponte, subject matter jurisdiction at any time.” (citing Arbaugh v. Y & H

Corp., 546 U.S. at 506; Foiden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), re_h’g

and reh'q g banc denied (Fed. Cir. 2004), g_e_g;_ denied, 545 U.S. 1127 (2005); and

Fanninq, Phiiiips & iVioinarv. VVest, 160 F.3d 717, 720 (Fed. Cir. 1998))); Pii<ulin v. United

States, 97 Fed. Cix 71, 76, appeal dismissed, 425 F. App’x 902 (Fed. Cir. 2011). in fact,

“[s]ubject matterjurlsdiction is an inquiry that this court must raise sua sponfe, even where

. . . neither party has raised this issue." i\/ietaboiite Labs., inc. v. l_ab. Corp. of Am.

Hoidings, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., lnc. v. iViead Corp., 134

F.3d 1481, 1485 (Fed. Cir.), reh’q denied and § banc suggestion declined (Fed. Cir.),

_gem_r_t_; denied, 525 U.S. 826 (1998)), reh’q and reh’q _eg banc denied (Fed. Cir. 2004), _c_e_rt;

granted jg part sub. nom i..ab. Corp. of Am. Ho|dinqs v. Metaboiite Labs., inc.l 546 U.S.

975 (2005), cert. dismissed _a_s_ improvidently qranted, 548 U.S. 124 (2006); W_aii)_ w

identification Svs., inc. v. Crvstal import Corp., 603 F.3d 967, 971 (Fed. Cir.) (“This court

must always determine for itself whether it has jurisdiction to hear the case before it, even

when the parties do not raise or contest the issue."), reh’q and reh’q g banc denied, 614

F.3d 1330 (Fed. Cir. 2010), peg denied, 131 S. Ct. 909 (2011).

“Determination of jurisdiction starts with the complaint, which must be weil-

pieaded in that it must state the necessary elements of the plaintiffs ciaim, independent

of any defense that may be interposed." |-ioi|ev v. United States, 124 F.3d 1462, 1465

(Fed. Cir.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1

(1983)), Qh_’_g denied (Fed. Cir. 1997); see also K|amath Tribe C|aims Comm. v. United

States, 97 Fed. C|. 203, 208 (2011); Gonzalez-i\/icCauiiey inv. Grp., lnc. v. United States.

93 Fed. Cl. 710, 713 (2010). A piaintiff need only state in the complaint “a short and plain

statement of the grounds for the court's jurisdiction," and “a short and plain statement of

the oiaim showing that the pleader is entitled to reilef.” RCFC 8(a)(1), (2) (2016); Fed. R.

Civ. P. 8(a)(1), (2) (2016); see also Ashcroft v. lqbail 556 U.S. 662, 677-78 (2009) (citing

Beli At|. Corp. v. Twomblv, 550 U.S. 544, 555-57, 570 (2007)). However, "[c]onclusory

aliegations of law and unwarranted inferences of fact do not suffice to support a ciaim.”

Bradiev v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also i\/icZeai v. Sprint

Nextei Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyi<, J., concurring in part,

dissenting in part) (quoting C. Wright and A. i\/ii|ier, Federai Practice and Procedure §

1286 (3d ed. 2004)). “A plaintiffs factual allegations must ‘raise a right to relief above the

speculative ievel’ and cross ‘the iine from conceivable to piausibie."’ Three S Consulting

v. United States, 104 Fed. Ci. 510, 523 (2012) (quoting Beli Ati. Corp. v. Twomblyl 550

U.S. at 555), ajf§, 562 F. App’x 964 (Fed. Cir.), [e_h'g denied (Fed. Cir. 2014). As stated

in Ashcroft v. igbai, "[a] pleading that offers ‘labeis and conciusions’ or ‘a formuiaic

recitation of the elements of a cause of action will not do.' 550 U.S. at 555. Nor does a

complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement."’

Ashcroft v. |gbai, 556 U.S. at 678 (quoting Beli Ati. Corp. v. Twornbiv, 550 U.S. at 555).

The Tucker Act grants jurisdiction to this court as foilows:

The United States Court of Federai C|aims shall have jurisdiction to render

judgment upon any claim against the United States founded either upon the

Constitutionl or any Act of Congress or any regulation of an executive

department1 or upon any express or implied contract with the United States,

or for liquidated or uniiquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1) (2012). As interpreted by the United States Supreme Court, the

Tucker Act waives sovereign immunity to ailowjurisdiction over claims against the United

States (1) founded on an express or implied contract with the United States, (2) seeking

a refund from a prior payment made to the government or (3) based on federal

constitutionai, statutoryl or regulatory law mandating compensation by the federal

government for damages sustained See United States v. Navaio Nation, 556 U.S. 287,

289-90 (2009); United States v. |\/iitcheiil 463 U.S. 206, 216 (1983); B grigg Greeniee

Cntv.. Ariz. v. United States, 487 F.3d 8711 875 (Fed. Cir.), reh’q and reh’q en banc denied

(Fed. Cir. 2007), cert denied, 552 U.S. 1142 (2008); Pa|mer v. United Statesl 168 F.3d

1310, 1314 (Fed. Cir. 1999).

“Not every claim invoking the Constitution, a federal statute, or a regulation is

cognizable under the Tucker Act. The claim must be one for money damages against the

United States . . . United States v. |Viitcheil, 463 U.S. at 216; see also United States v.

White i\/icuntain Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United States, 709

F.3d 1114, 1116 (Fed. Cir.), ge_rt. denied, 134 S. Ct. 259 (2013); RadioShack Corg. v.

United States1 566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s lV|ushroom Serv.. lnc. v.

United States, 521 F.3d at 1343 (“[P]iaintiff must . . . identify a substantive source of law

that creates the right to recovery of money damages against the United States."); Goiden

v. United States, 118 Fed. C|. 764, 768 (2014). in Ontario Power Generation, inc. v.

United States, the United States Court of Appeais for the Federai Circuit identified three

types of monetary claims for which jurisdiction is lodged in the United States Court of

Federai Ciaims. The court wrote:

The underlying monetary claims are of three types. . . . First, claims alleging

the existence of a contract between the plaintiff and the government fall

within the Tucker Act’s waiver. . . . Second, the Tucker Act’s waiver

encompasses claims where “the plaintiff has paid money over to the

Government, directly or in effect, and seeks return of all or part of that sum.”

Eastport S.S. iCorp. v. United States, 178 Ct. Ci. 599, 605-06,] 372 F.2d

[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims “in

which ‘the Government has the citizen’s money in its pocket"' (quoting

Ciagg v. United States, 127 Ct. Ci. 505, 117 F. Supp. 576, 580 (1954)) . . . .

Third, the Court of Federai C|aims has jurisdiction over those claims where

“money has not been paid but the plaintiff asserts that he is nevertheless

entitled to a payment from the treasury." Eastgort S.S., 372 F.2d at 1007.

C|aims in this third category, where no payment has been made to the

government, either directly or in effect, require that the “particular provision

of law reiied upon grants the claimant, expressly or by implication, a right to

be paid a certain sum.” l_d_.; see also iUnited States v. i`i`estan, 424 U.S.

[392,] 401-02 [1976] (“Where the United States is the defendant and the

plaintiff is not suing for money improperly exacted or retained, the basis of

the federal claim-whether it be the Constitution, a statute, or a regulation-

does not create a cause of action for money damages unlessl as the Court

of Claims has stated, that basis ‘in itseif . . . can fairly be interpreted as

mandating compensation by the Federai Government for the damage

sustained.”’ (quoting Eastport S.S., 372 F.2d at 1009)). this category is

commonly referred to as claims brought under a “money-mandating"

statute

Ontario Power Generation, inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004);

see also Twp. of Saddle Brook v. United States, 104 Fed. Ci. 101, 106 (2012).

To prove that a statute or reguiation is money-mandating, a plaintiff must

demonstrate that an independent source of substantive law relied upon "‘can fairly be

interpreted as mandating compensation by the Federai Government.’" United States v.

Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. 392, 400

(1976)); See also United States v. White l\/lountain Apache Tribe, 537 U.S. at 472; United

States v. i\flitchell, 463 U.S. at 217; Biueport Co., LLC v. United States, 533 F.3d 1374,

1383 (Fed. Cir. 2008), gem¢ denied, 555 U.S. 1153 (2009). The source of law granting

monetary relief must be distinct from the Tucker Act itselfl See United States v. Navaio

Nation, 556 U.S. at 290 (The Tucker Act does not create “substantive rights; [it is simply

aj jurisdictional provision[] that operate[s] to waive sovereign immunity for claims

premised on other sources of law (e.g., statutes or contracts).”). “‘lf the statute is not

money-mandatingl the Court of Federai Ciaims lacks jurisdictionl and the dismissal

should be for lack of subject matter jurisdiction.’" Jan’s Heiicopter Serv., inc. v. Fed.

Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cntv., Ariz. v.

United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.

2005) (The absence of a money-mandating source is “fatal to the court's jurisdiction under

the Tucker Act.”); Peoples v. United States, 87 Fed. Ci. 5531 565-66 (2009).

Aithough the Tucker Act waives federal sovereign immunity and grants this court

jurisdiction to hear monetary claims against the government, this court's jurisdiction is

expressly limited by 28 U.S.C. § 2501 (2012), which prescribes a six-year statute of

limitations for claims arising under the Tucker Act’s waiver of sovereign immunity.

According to 28 U.S.C. § 2501:

Every claim of which the United States Court of Federai C|aims has

jurisdiction shall be barred unless the petition thereon is filed within six years

after such claim first accrues . . . A petition on the claim of a person under

legal disability or beyond the seas at the time the claim accrues may be filed

within three years after the disability ceases.

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id_. “The six-year statute of limitations set forth in section 2501 is a jurisdictional

requirement for a suit in the Court of Federai Ciaims.” John R. Sand & Gravel Co. v.

United States, 457 F.3d 1345, 1354 (Fed. Cir.), Mg _eg b_a_n_c denied (Fed. Cir. 2006),

aid 552 U.S. 130 (2008); Schneil v. United States, 115 Fed. Ci. 102, 104-05 (2014).

The United States Court of Appeals for the Federai Circuit has indicated that a claim

accrues ““‘when all events have occurred to fix the Government's alleged liability, entitling

the claimant to demand payment and sue here for his money.””’ San Carlos Apache Tribe

v. United States, 639 F.3d 1346, 1358-59 (Fed. Cir.) (quoting Samish indian Nation v.

United States, 419 F.3d 1355, 1369 (Fed. Cir. 2005) (quoting l\/|artinez v. United States,

333 F.3d1295, 1303 (Fed. Cir. 2003), QrL denied, 540 U.S. 1177 (2004))), Mgegga_ng

denied (Fed. Cir. 2011); see also F|oorPro, lnc. v. United States, 680 F.3d 1377, 1381

(Fed. Cir. 2012); i\/lartinez v. United Statesl 333 F.3d at 1303) (“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 ‘ali events have occurred to fix

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

for his money.”’ (quoting l\iaqer Elec. Co. v. United States, 177 Ct. Ci. 234, 240, 368 F.2d

847, 851 (1966), motion denied, 184 Ct. Ci. 390, 396 F.2d 977 (1963)); l\/lildenberger v.

United States, 643 F.3d 938, 944-45 (Fed. Cir. 2011); Hopland Band of Pomo indians v.

United States, 855 F.2d 1573, 1577 (Fed. Cir. 1988); see also Eden isle i\/larina, inc. v.

United States, 113 Fed. Ci. 372, 481 (2013); Brizuela v. United States, 103 Fed. Ci. 635,

639,a_ff_c_l, 492 F. App’x 97 (Fed. Cir. 2012), M denied, 133 S. Ct. 1645 (2013); s_e_ea_l_s_o

Levy v. United States, 83 Fed. Ci. 67, 73, 79 (2008) (dismlssing a claim for military reserve

retirement benefits because suits against the United States are subject to a six-year

statute of limitations and the claim was filed outside the allotted timeframe); Barney v,

United States, 57 Fed. Ci. 761 83, 86 (2003) (dismissing former Airmah’s claims for

wrongful discharge/unpaid wages and disability retirement because they were time-

barred by the six-year statute of |imitations). A Judge of the United States Court of Federai

C|aims has noted that:

lt is weil-established that a claim accrues under section 2501 “when ‘all

events have occurred to fix the Government's alleged liability1 entitling the

claimant to demand payment and sue here for his money.’" l\/iartinez v.

United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc), g§£t_.denied,

540 U.S. 1177 (2004) (quoting Naqer Elec. Co. v. United States, 368 F.2d

847, 851 (Ct. Ci. 1966)); see also Samish [indian Nation v. United Statesl,

419 F.3d [1355,] 1369 [(2005)]. Because, as noted, this requirement is

jurisdictionai, plaintiff bears the burden of demonstrating that its claims were

timely. See AlderTerrace, lno. v. United States, 161 F.3d 1372, 1377 (Fed.

Cir. 1998); Entines v. United States, 39 Fed. Ci. 673, 678 (1997), _a_ff_g, 185

F.3d 881 (Fed. Cir.), _c_:_c-;Lr_‘mt,., denied, 526 U.S. 1117 (1999); §_e_e_ ai_s_o_ John R.

Sand & Gravei Co. v. United States, 457 F,3d 13451 1362 (Fed. Cir. 2006)

(Newman, J., dissenting); Revnolds v. Army & Air Force Exch. Serv., 846

F.2d 746l 748 (Fed. Cir. 1988).

Parkwood Assocs. Ltd. P‘ship v. United States, 97 Fed. Ci. 809, 813-14 (2011), a@, 465

F. App'x 952 (Fed. Cir. 2012); see also Kiamath Tribe C|aims Comm. v. United States, 97

11

Fed. Ci. 203, 209 (2011) (citing A|derTerrace, inc. v. United States, 161 F.3d 1372, 1377

(Fed. Cir. 1998)). Accrual of a claim is “'determined under an objective standard’" and

plaintiff does not have to possess actual knowledge of all the relevant facts in order for a

cause of action to accrue. FloorF’ro, lnc. v. United States, 680 F.3d at 1381 (quoting

Failini v. United States, 56 F.3d 13781 1380 (Fed. Cir. 1995), c_e_rt.denied, 517 U.S. 1243

(1996)).

Defendant argues that plaintiffs causes of action for disability retirement pay,

compensatory damages, and other monetary relief accrued upon his discharge from the

Army on iVlay 3, 1995, because, at that time, the PEB had already determined that

plaintiffs medical conditions made him unfit for continued military service and had

recommended that plaintiff be separated, with severance pay, based on a 20 percent

disability rating. According to defendant because plaintiffs complaint was not filed until

approximately 20 years after plaintiffs discharge from the Army, it is time-barred in

opposition, plaintiff argues that his claim is not time-barred because it Was filed within six

years ofthe ABC|V|R’s decision on September 25, 2014.

“The generally accepted rule is that ciaims of entitlement to disability retirement

pay do not accrue until the appropriate board either finally denies such a claim or refuses

to hear it.” Reai v. United States, 906 F.2d 1557l 1560 (1990) (citing Friedman v. United

Statesl 159 Ct. Ci. 1 (1962), cert. denied, 373 U.S. 932, (1963)). “The decision by the first

statutorily authorized board which hears or refuses to hear the claim is the triggering

event.” Real v. United States, 906 F.2d at 1560. As an exception to this general rulel

however, and as is pertinent to this case, a claim for disability retirement pay accrues at

the time a service member is discharged if, at the time of discharge1 the service member

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

the board heard the service member's claims and denied them. See Chambers v. United

States, 417 F.3d 1218, 1225 (2005) (citing Real v. United States, 906 F.2d at 1560).

When this occurs, “[aj subsequent petition to the corrections board does not toll the

running of the limitations period . . . , nor does a new ciaim accrue upon denial of the

petition by the corrections board . . . Real v. United States, 906 F.2d at 1560 (Fed. Cir.

1990) (citing Friedman v. United States, 159 Ct. Ci. at 14-15, 25-29).

in the present case, it is undisputed thatl following the iViEB recommendation,

plaintiff received a hearing regarding his alleged disability before an informal PEB prior to

his discharge on Nlay 3, 1995, and waived a formal PEB hearing As explained above,

the informal PEB considered plaintiffs condition in January 1995 and recommended that

he be separated from the Army with severance pay and a 20% disability ratlng. P|aintlff

concurred with the PEB’s recommendation and waived a formal hearing prior to his

discharge from the Army. Thus, at the time of his discharge from the Army1 plaintiffs claim

for disability had been considered, and denied, by an appropriate board According to the

United States Court of Appeals for the Federai Circuit, when a plaintiff waives a formal

PEB hearing, a decision by an informal PEB is sufficient to trigger the running of the

statute of limitations on a disability retirement claim. See Gant v. United States, 417 F.3d

1328, 1329-30 (Fed. Cir. 2005) (finding that plaintiffs knowing and voluntary waiver of a

formal PEB hearing through acceptance of an informal PEB’s conclusions was sufficient

to cause a claim to accrue); Schrnidt v. United States, 89 Fed. Ci. 11’l, 120-21 (2009)

12

(“An ‘informal’ CPEB [Central Physicai Evaluation Board] decision is sufficient to start the

running of the statute of limitations."); Fuller v. United States1 14 Ci. Ct. 542, 544 (1988)

(“`l'he PEB is a proper and competent tribunal whose decision is adequate to trigger the

running of the statute of limitations."); Abatemarco v. United States, 226 Ct. Ci. 708l 710

(1981) (“P|aintiff's cause of action accrued in lV|ay 1972 because he had then demanded

but been refused a Physical Evaluation Board, and was released without disability

retirement pay.”). A|though plaintiff relies on the ABCMR’s September 25, 2014 decision

to argue that his claim is not time-barred plaintiffs claim for disabiiity retirement pay

accrued upon the date of his discharge from the Army on lVlay 3, 1995 because, prior to

his discharge, plaintiffs disability ciaim had been considered by the informal F’EB, and

plaintiff waived a formal PEB hearing See Chambers v. United States, 417 F.3d at 1225

(citing Real v. United States, 906 F.2d at 1560). Therefore, the statute of limitations for

plaintiffs military disability retirement pay expired on l\llay 3, 2001, six years after the date

of his discharge, and, as a result plaintiffs claim for disability retirement pay in the above-

captioned case filed on December 7, 2016 is untime|y. The court therefore, concludes

that plaintiffs complaint was filed more than fifteen years after the expiration of the statute

of iimitations, and, thus1 plaintiffs claims are time-barred.

CONCLUSEON

For the reasons stated above, this court lacks jurisdiction to hear plaintiffs claims.

Defendant’s motion to dismiss is GRANTED. P|aintiff’s complaint is DISM|SSED. The

clerk’s office shall enter JUDGlViENT consistent with this opinion

%/§%M ala

/MARIAN BLANK HORN

Judge

lT iS SO ORDERED.

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