Garcia-Gines v. United States

back" on January 11, 1991, which caused him to have "short term memory loss,

cerebrospinal fluid leak, and periods of unconsciousness during the Persian Gulf War."

Defendant has moved to dismiss plaintiff's complaint pursuant to Rule 12(b) of the Rules

of the United States Court of Federal Claims (RCFC) for lack of jurisdiction.

In his complaint, plaintiff asserts that he "first joined the military on March 1, 1972,

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

combination with the Air National Guard and Inactive Reserve." According to documents

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

from March 1, 1972 to February 22, 1974, and May 20, 1974 to May 19, 1977, and

September 29, 1983 to May 3, 1995. 1 Plaintiff alleges that he suffered "a head injury to

the front of the head" on January 11, 1991 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 head, 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 May 3, 1995, plaintiff was discharged from

active service due to physical disability.

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

a medical evaluation board (MEB) and by an informal physical evaluation board (PEB).

On December 15, 1994, the MEB determined that plaintiff had "Degenerative joint disease

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

determined that plaintiff was unfit for continued military service. Plaintiff signed "DA

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

recommendation of the MEB and that he agreed with the MEB's findings and

recommendation. The MEB referred plaintiff to a PEB.

In a decision issued on January 3, 1995, an informal PEB described plaintiff's

disabilities as follows:

Degenerative joint disease of lumbar spine, progressive symptomology

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 MOS of a Fire Support

Forward Observer.

1 In considering defendant's motion to dismiss, the court considered the administrative

record, including all evidence relevant to the jurisdictional facts alleged in the complaint.

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

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

alleged in the complaint, the district court may consider relevant evidence in order to

resolve the factual dispute.").

2

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

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

The 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 disability 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 plaintiff's disposition be characterized as

"Separation with severance pay if otherwise qualified."

The informal PEB also made the following "RECOMMENDED FINDING":

A. THE MEMBER'S RETIREMENT IS NOT BASED ON DISABILITY

FROM INJURY OR DISEASE RECEIVED IN THE LINE OF DUTY AS

A DIRECT RESULT OF ARMED CONFLICT OR CAUSED BY AN

INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY

DURING A PERIOD OF WAR AS DEFINED BY LAW.

B. EVIDENCE OF RECORD REFLECTS THE INDIVIDUAL WAS NOT A

MEMBER OR OBLIGATED TO BECOME A MEMBER OF AN ARMED

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

C. THE DISABILITY DID NOT RESULT FROM A COMBAT RELATED

INJURY AS DEFINED IN 26 U.S.C. 104.

Plaintiff concurred with the informal PEB's findings and recommendations. On January 5,

1995, plaintiff signed a form indicating that he had been advised of the findings and

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

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

decision. Plaintiff signed a form stating "I CONCUR AND WAIVE A FORMAL HEARING

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

Secretary of the Army on January 6, 1995.

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

from active duty service due to physical disability on May 3, 1995. Plaintiff's discharge is

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

reason for separation is "DISABILITY, SEVERANCE PAY." The DD Form 214 includes a

description of plaintiff's record of service and explains that plaintiff's "Net Active Service

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

plaintiff's "Total Prior Inactive Service" was 2 months and 28 days.

Approximately 11 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 Military Records (ABCMR) to change his DD Form 214 from "Disability

3

Severance Pay to Permanent Retirement." Plaintiff 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 ABCMR, 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 issued, but I am

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

to the mission first at all times." On April 12, 2007, the ABCMR notified plaintiff, in a letter,

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

disability retirement had been denied on April 5, 2007. In its denial decision, the ABCMR

explained that "Title 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 ABCMR can "excuse failure to file within the 3-year statute

of limitations if the ABC MR determines that it would be in the interest of justice to do so."

The ABCMR 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 of justice

to excuse the applicant's failure to timely file this application within the 3-year statute of

limitations prescribed by law." The April 12, 2007 letter that informed plaintiff of the

ABCMR's denial decision explained, "[t]his decision in your case is final. 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 plaintiff's 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 file did not accurately describe

plaintiff's total time in service. Plaintiff asserted: "MY TOTAL MILITARY SERVICE WAS

NOT ADDED CORRECTLY AT THE TIME OF DISCHARGE I WAS BEING SEPARATED

MEDICALLY AND DUE TO HEAD TRAUMA AND VARIOUS OTHER INJURIES I WAS

UNABLE TO GATHER ALL OF MY MILITARY DOCUMENTATION TO COMPUTE

CORRECT DATA." On May 13, 2009, the ABC MR notified plaintiff that his request was

granted to correct his total time in service on his DD Form 214, and the ABCMR noted

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

lateness of plaintiff's request, the ABCMR determined "it is in the interest of justice to

excuse the applicant's failure to timely file" in order to correct his records with regard to

"the computation of the applicant's total service." The ABCMR determined that, at the

time he was discharged from the Army, plaintiff's DD Form 214 incorrectly reflected only

two months and 28 days of total prior inactive service, when, in fact, plaintiff plaintiff's total

prior inactive service was two years, seven months, and 21 days total. Accordingly, the

ABCMR recommended that "all 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 May 1995 to show 2 years, 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.

4

On January 15, 2010, plaintiff filed another request to the ABC MR 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 ABCMR considered plaintiff's request as an

untimely request for reconsideration of the ABCMR's April 5, 2007 decision denying

plaintiff's similar request on September 14, 2006. On June 9, 2010, the ABCMR notified

plaintiff that "[t]he staff of the ABC MR 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 ABCMR's original decision" on April 5, 2007. The June 9, 2010

letter to plaintiff stated that "[t]he ABCMR will not consider any further requests for

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

appropriate jurisdiction."

Shortly after the ABCMR's letter to plaintiff on June 9, 2010, plaintiff's spouse sent

a letter on June 17, 2010 also seeking reconsideration of plaintiff's case "due [to]

extenuating circumstances that caused a lapse in time for the filing" of plaintiff's request

to correct his military records. The ABCMR responded to plaintiff's wife in a letter on

December 13, 2010, which explained that the ABCMR's decision on June 9, 201 O "was

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

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

reconsideration by this Board." In this letter, the ABCMR 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 ABCMR seeking

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

disability percentage rating. In response, the ABCMR sent plaintiff a letter on September

25, 2014 explaining that plaintiff's request was considered by the ABCMR in April of 2007

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

2010. Similar to the ABCMR's letters to plaintiff on June 9, 201 O and December 13, 2010,

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

reconsideration of plaintiff's request was the final administrative action and that no further

action would be contemplated by the ABCMR. The September 25, 2014 letter stated that

the ABCMR 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 from the Army, plaintiff filed his complaint in

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

cost-of living adjustments increases," as well as an "[i]ncrease in medical percentages to

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

Affairs Schedule for Rating Disabilities and related precepts, laws, 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:

Disability." (emphasis in original). In his complaint, plaintiff asserts that "Military and

Physical Evaluation Board proceedings at time of discharge failed to abide by Army

Regulations by not correctly adding his total time in service and by stating on his Physical

Evaluation Board proceedings that he was not in the military before September 24, 1975,

5

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

emergency after September 14, 1978." Plaintiff also alleges that his "injuries were 'passed

over' from the Medical Evaluation Board and Physical Evaluation Board Proceedings

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

plaintiff's back injury." According to plaintiff, 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 25, 2014,"

when, as noted above, the ABCMR stated that it would not consider any future request

from plaintiff and that plaintiff had the option of seeking relief in court.

Defendant has moved to dismiss plaintiff's complaint pursuant to RCFC 12(b)(1)

for lack of ·subject matter jurisdiction because plaintiff's 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 plaintiff's discharge when, at the time of discharge, an

appropriate board has already heard and denied plaintiff's claim for disability. Plaintiff filed

an opposition to defendant's motion to dismiss that reiterates the allegations in plaintiff's

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."

DISCUSSION

The court recognizes that plaintiff is proceeding pro se, without the assistance of

counsel. When determining whether a complaint filed by a pro se plaintiff is sufficient to

invoke review by a court, pro se plaintiffs are entitled to liberal construction of their

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

contained in a prose complaint be held to "less stringent standards than formal pleadings

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

U.S. 89, 94 (2007); Hughes v. Rowe, 449 U.S. 5, 9-10 (1980); Estelle v. Gamble, 429

U.S. 97, 106 (1976), reh'g denied, 429 U.S. 1066 (1977); Matthews v. United States, 750

F.3d 1320, 1322 (Fed. Cir. 2014); Diamond v. United States, 115 Fed. Cl. 516, 524, aff'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 plaintiff] has not spelled

out in his [or her] pleading.""' Lengen v. United States, 100 Fed. Cl. 317, 328 (2011)

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

(quoting Clark v. Nat'I Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); see

also Bussie v. United States, 96 Fed. Cl. 89, 94, aff'd, 443 F. App'x 542 (Fed. Cir. 2011);

Minehan v. United States, 75 Fed. Cl. 249, 253 (2007). "While a PJ:Q se plaintiff is held to

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

plaintiff, nevertheless, bears the burden of establishing the Court's jurisdiction by a

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

(citing Hughes v. Rowe, 449 U.S. at 9 and Taylor v. United States, 303 F.3d 1357, 1359

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

evidence."}, reh'g and reh'g en bane denied (Fed. Cir. 2002)); see also Shelkofsky v.

6

United States, 119 Fed. Cl. 133, 139 (2014) ("[W]hile the court may excuse ambiguities

in a pro se plaintiff's complaint, the court 'does not excuse [a complaint's] failures."'

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

States, 113 Fed. Cl. 290, 292 (2013) ("Although plaintiff's pleadings are held to a less

stringent standard, such leniency 'with respect to mere formalities does not relieve the

burden to meet jurisdictional requirements."' (quoting Minehan v. United States, 75 Fed.

Cl. at 253)).

In Mr. Garcia-Gines' case, as noted above, defendant has moved to dismiss

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

subject matter jurisdiction to consider plaintiff's complaint because it is time-barred.

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

"28U.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 defendant's motion to dismiss plaintiff's complaint for lack of subject

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

allegations to be true and construes all reasonable inferences in plaintiff's favor. See

Miller v. United States, 119 Fed. Cl. 717, 724 (2015). As the plaintiff, however, Mr. Garcia-

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

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

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

evidence.").

It is well established that '"subject-matter jurisdiction, because it involves a court's

power to hear a case, can never be forfeited or waived."' Arbaugh v. Y & H Com., 546

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

"[F]ederal 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." Henderson ex rel.

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

Ct. 641, 648 (2012) ("When a requirement goes to subject-matter jurisdiction, courts are

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

presented."); Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010) ("Courts have an independent

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

challenges it." (citing Arbaugh v. Y & H Corp., 546 U.S. at 514)); Special Devices. Inc. v.

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

jurisdiction to hear and decide a case." (citing Johannsen v. Pay Less Drug Stores N.W.,

Inc., 918 F.2d 160, 161 (Fed. Cir. 1990)); View Eng'g, Inc. v. Robotic Vision Sys., Inc.,

115 F.3d 962, 963 (Fed. Cir. 1997) ("[C]ourts must always look to their jurisdiction,

whether the parties raise the issue or not."). "Objections to a tribunal's jurisdiction can be

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

jurisdiction over the controversy." Sebelius v. Auburn Reg'I Med. Ctr., 133 S. Ct. 817, 824

(2013); see also Arbaugh v. Y & H Corp., 546 U.S. at 506 ("The objection that a federal

court lacks subject-matter jurisdiction ... 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 1360, 1364 n.1 (Fed. Cir. 2012)

("An objection to a court's subject matter jurisdiction can be raised by any party or the

7

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

Arbaugh v. Y & H Corp., 546 U.S. at 506-07)); Rick's Mushroom Serv., Inc. v. United

States, 521 F.3d 1338, 1346 (Fed. Cir. 2008) ("[A]ny party may challenge, or the court

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

Corp., 546 U.S. at 506; Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh'g

and reh'g en bane denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); and

Fanning, Phillips & Molnarv. West, 160 F.3d 717, 720 (Fed. Cir. 1998))); Pikulin v. United

States, 97 Fed. Cl. 71, 76, appeal dismissed, 425 F. App'x 902 (Fed. Cir. 2011). In fact,

"[s]ubject matter jurisdiction is an inquiry that this court must raise sua sponte, even where

... neither party has raised this issue." Metabolite Labs .. Inc. v. Lab. Corp. of Am.

Holdings, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods., Inc. v. Mead Corp., 134

F.3d 1481, 1485 (Fed. Cir.), reh'g denied and en bane suggestion declined (Fed. Cir.),

cert. denied, 525 U.S. 826 (1998)), reh'g and reh'g en bane denied (Fed. Cir. 2004), cert.

granted in part sub. nom Lab. Corp. of Am. Holdings v. Metabolite Labs., Inc., 546 U.S.

975 (2005), cert. dismissed as improvidently granted, 548 U.S. 124 (2006); see also Avid

Identification Sys., Inc. v. Crystal 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'g and reh'g en bane denied, 614

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

"Determination of jurisdiction 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.) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1

(1983)), reh'g denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United

States, 97 Fed. Cl. 203, 208 (2011); Gonzalez-Mccaulley Inv. Grp., Inc. v. United States,

93 Fed. Cl. 710, 713 (2010). A plaintiff 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 claim showing that the pleader is entitled to relief." RCFC 8(a)(1), (2) (2016); Fed. R.

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

Bell All. Corp. v. Twombly, 550 U.S. 544, 555-57, 570 (2007)). However, "[c]onclusory

allegations of law and unwarranted inferences of fact do not suffice to support a claim."

Bradley v. Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also Mczeal v. Sprint

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

dissenting in part) (quoting C. Wright and A. Miller, Federal Practice and Procedure §

1286 (3d ed. 2004)). "A plaintiff's factual allegations must 'raise a right to relief above the

speculative level' and cross 'the line from conceivable to plausible."' Three S Consulting

v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting Bell All. Corp. v. Twombly, 550

U.S. at 555), aff'd, 562 F. App'x 964 (Fed. Cir.), reh'g denied (Fed. Cir. 2014). As stated

in Ashcroft v. Iqbal, "[a] pleading that offers 'labels and conclusions' or 'a formulaic

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. Iqbal, 556 U.S. at 678 (quoting Bell All. Corp. v. Twombly, 550 U.S. at 555).

8

The Tucker Act grants jurisdiction to this court as follows:

The United States Court of Federal Claims shall have jurisdiction to render

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

Constitution, or any Act of Congress or any regulation of an executive

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

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

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

Tucker Act waives sovereign immunity to allow jurisdiction 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

constitutional, statutory, or regulatory law mandating compensation by the federal

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

289-90 (2009); United States v. Mitchell, 463 U.S. 206, 216 (1983); see also Greenlee

Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed. Cir.), reh'g and reh'g en bane denied

(Fed. Cir. 2007), cert. denied, 552 U.S. 1142 (2008); Palmer v. United States, 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. Mitchell, 463 U.S. at 216; see also United States v.

White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); Smith v. United States, 709

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

United States, 566 F.3d 1358, 1360 (Fed. Cir. 2009); Rick's Mushroom Serv .. Inc. v.

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

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

v. United States, 118 Fed. Cl. 764, 768 (2014). In Ontario Power Generation. Inc. v.

United States, the United States Court of Appeals for the Federal Circuit identified three

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

Federal Claims. 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. [Corp. v. United States, 178 Ct. Cl. 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

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

Third, the Court of Federal Claims 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." Eastport S.S., 372 F.2d at 1007.

Claims in this third category, where no payment has been made to the

9

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

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

be paid a certain sum." )fl; see also [United States v. JTestan, 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 unless, as the Court

of Claims has stated, that basis 'in itself ... can fairly be interpreted as

mandating compensation by the Federal 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. Cl. 101, 106 (2012).

To prove that a statute or regulation 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 Federal 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 Mountain Apache Tribe, 537 U.S. at 472; United

States v. Mitchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374,

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

monetary relief must be distinct from the Tucker Act itself. See United States v. Navajo

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

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

premised on other sources of law (e.g., statutes or contracts)."). "'If the statute is not

money-mandating, the Court of Federal Claims lacks jurisdiction, and the dismissal

should be for lack of subject matter jurisdiction.'" Jan's Helicopter Serv., Inc. v. Fed.

Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., 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. Cl. 553, 565-66 (2009).

Although 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 Federal Claims 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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!(L "The six-year statute of limitations set forth in section 2501 is a jurisdictional

requirement for a suit in the Court of Federal Claims." John R. Sand & Gravel Co. v.

United States, 457 F.3d 1345, 1354 (Fed. Cir.), reh'g en bane denied (Fed. Cir. 2006),

aff'd, 552 U.S. 130 (2008); Schnell v. United States, 115 Fed. Cl. 102, 104-05 (2014).

The United States Court of Appeals for the Federal 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 Martinez v. United States,

333 F.3d 1295, 1303 (Fed. Cir. 2003), cert. denied, 540 U.S. 1177 (2004))), reh'g en bane

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

(Fed. Cir. 2012); Martinez v. United States, 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 'all events have occurred to fix

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

for his money."' (quoting Nager Elec. Co. v. United States, 177 Ct. Cl. 234, 240, 368 F.2d

847, 851 (1966), motion denied, 184 Ct. Cl. 390, 396 F.2d 977 (1968)); Mildenberger 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 Marina. Inc. v.

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

639, aff'd, 492 F. App'x 97 (Fed. Cir. 2012), cert. denied, 133 S. Ct. 1645 (2013); see also

Levy v. United States, 83 Fed. Cl. 67, 73, 79 (2008) (dismissing 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. Cl. 76, 83, 86 (2003) (dismissing former Airman's claims for

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

barred by the six-year statute of limitations). A Judge of the United States Court of Federal

Claims has noted that:

It is well-established that a claim accrues under section 2501 "when 'all

events have occurred to fix the Government's alleged liability, entitling the

claimant to demand payment and sue here for his money."' Martinez v.

United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en bane), cert. denied,

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

847, 851 (Ct. Cl. 1966)); see also Samish [Indian Nation v. United States),

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

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

timely. See Alder Terrace, Inc. v. United States, 161 F.3d 1372, 1377 (Fed.

Cir. 1998); Entines v. United States, 39 Fed. Cl. 673, 678 (1997), aff'd, 185

F.3d 881 (Fed. Cir.), cert. denied, 526 U.S. 1117 (1999); see also John R.

Sand & Gravel Co. v. United States, 457 F.3d 1345, 1362 (Fed. Cir. 2006)

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

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

Parkwood Assocs. Ltd. P'ship v. United States, 97 Fed. Cl. 809, 813-14 (2011), aff'd, 465

F. App'x 952 (Fed. Cir. 2012); see also Klamath Tribe Claims Comm. v. United States, 97

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Fed. Cl. 203, 209 (2011) (citing Alder Terrace, Inc. v. United States, 161F.3d1372, 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. FloorPro. Inc. v. United States, 680 F.3d at 1381 (quoting

Fallini v. United States, 56 F.3d 1378, 1380 (Fed. Cir. 1995), cert. denied, 517 U.S. 1243

(1996)).

Defendant argues that plaintiff's causes of action for disability retirement pay,

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

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

plaintiff's 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 plaintiff's complaint was not filed until

approximately 20 years after plaintiff's 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 of the ABCMR's decision on September 25, 2014.

"The generally accepted rule is that claims of entitlement to disability retirement

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

to hear it." Real v. United States, 906 F.2d 1557, 1560 (1990) (citing Friedman v. United

States, 159 Ct. Cl. 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 rule,

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 discharge, 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, "[a] subsequent petition to the corrections board does not toll the

running of the limitations period ... , nor does a new claim 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. Cl. at 14-15, 25-29).

In the present case, it is undisputed that, following the MEB recommendation,

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

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

the informal PEB considered plaintiff's condition in January 1995 and recommended that

he be separated from the Army with severance pay and a 20% disability rating. Plaintiff

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 Army, plaintiff's claim

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

United States Court of Appeals for the Federal 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 plaintiff's 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); Schmidt v. United States, 89 Fed. Cl. 111, 120-21 (2009)

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("An 'informal' CPEB [Central Physical Evaluation Board] decision is sufficient to start the

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

("The 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. Cl. 708, 710

(1981) ("Plaintiff's cause of action accrued in May 1972 because he had then demanded

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

retirement pay."). Although plaintiff relies on the ABCMR's September 25, 2014 decision

to argue that his claim is not time-barred, plaintiff's claim for disability retirement pay

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

his discharge, plaintiff's disability claim had been considered by the informal PEB, 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

plaintiff's military disability retirement pay expired on May 3, 2001, six years after the date

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

captioned case filed on December 7, 2016 is untimely. The court, therefore, concludes

that plaintiff's complaint was filed more than fifteen years after the expiration of the statute

of limitations, and, thus, plaintiff's claims are time-barred.

CONCLUSION

For the reasons stated above, this court lacks jurisdiction to hear plaintiff's claims.

Defendant's motion to dismiss is GRANTED. Plaintiff's complaint is DISMISSED. The

clerk's office shall enter JUDGMENT consistent with this opinion.

IT IS SO ORDERED.

~/X?~~V---

AARIAN BLANK HORN

Judge

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