Leonard v. United States

3Jn tbe Wniteb

ORIGINAL ~tates

Qrourt of eberal Qrlaints jf

No. 15-704C

(Filed: May 3, 2017) FILED

NOT FOR PUBLICATION

** ** ** ** *** * * ** **** MAY -3 2017

U.S. COURT OF

PATRICIA A. LEONARD, FEDERAL CLAIMS

Plaintiff,

Motion for Reconsideration; Continuing

Claims Doctrine.

v.

THE UNITED STATES,

Defendant,

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

ORDER ON MOTION FOR RECONSIDERATION

This is a military pay claim in which plaintiff, Major Patricia A.

Leonard, USA, Retired, seeks retroactive promotion and disability retirement

benefits. On September 19, 2016, we entered judgment against plaintiff,

concluding that plaintiffs disability rating claim accrued in 1994, well outside

the six-year statute oflimitations, and, in any event, had already been decided

in Leonard v. United States, No. 95-817 (Fed. Cl. Aug. 15, 1996). We also

held that plaintiffs claim for improper denial of promotion to Lieutenant

Colonel was similarly barred by the statute of limitations.

Plaintiff timely filed a motion for reconsideration in which she alleges

procedural error in that the court neglected to give her an opportunity to submit

additional materials to oppose defendant' s motion to dismiss. In addition, she

seeks to advance a new legal theory to counter the running of the limitations

period- the continuing claims doctrine. We asked the government to respond

to the motion for reconsideration and the matter is now ready for resolution.

Oral argument is deemed unnecessary. For the reasons set out below, we deny

the motion. Familiarity with the background facts set out in our earlier opinion

is presumed.

We begin with plaintiffs contention that she was prejudiced by the

court's failure to consider certain additional materials she sought to introduce

prior to the court's ruling on the motion to dismiss. On April 26, 2016,

plaintiff moved, among other things, for permission to add to the

administrative record. The motion attached certain documents. Our order of

August 1, 2016 granted plaintiffs motion to supplement the administrative

record, but, as plaintiffpoints out, set no deadline for submitting any additional

materials. Plaintiff did not submit anything in addition to the materials

attached to her motion, and the court entered its final order of dismissal on

September 19, 2016. As part of the court's review of the motion for

reconsideration, however, we permitted plaintiff to file the materials she says

were not before the court, which she did on two occasions, and we have taken

them into account in ruling on the present motion.

As defendant points out, most of the documents recently submitted by

plaintiff were already before the court. None of the rest, however, alter in any

way the dates on which her causes of action began to accrue. Indeed nothing

in her motion for reconsideration attempts to explain how our factual analysis

was incorrect. The entirety of the argument of the motion for reconsideration

addresses the continuing claims doctrine.

Setting aside, for argument's sake, the untimeliness of plaintiffs

assertion of the continuing claims doctrine, we find that it is legally incorrect.

A formal Physical Evaluation Board ("PEB") considered plaintiffs

claim for disability retirement and concluded that her conditions developed

naturally and were not related to her military service. As a result, in March

1994, it denied plaintiff the disability retirement that an earlier PEB had

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

We agree with the government that all of plaintiffs claims originate

from a single event-plaintiffs discharge, at the rank of Major, without a

disability retirement. This single event triggered both of plaintiffs claims.

Subsequent non-payment of retirement benefits calculated at the rank of

Lieutenant Colonel did not, even under the case law upon which plaintiff

relies, create new causes of action.

Plaintiff places principal reliance on Friedman v. United States, 310

F .2d 3 81 ( 1962), where the Court of Claims explained the continuing claims

doctrine:

Over the years, the court's pay cases (military and civilian)

concerned with the issue of limitations have often applied the

so-called 'continuing claim' theory, i.e., periodic pay claims

arising more than six years prior to suit are barred, but not those

arising within the six-year span even though the administrative

refusal to pay the sum claimed may have occurred, or the statute

on which the claim is grounded may have been enacted, prior to

six years. These were suits for additional pay at a higher grade,

or claiming greater compensation (under a statute or regulation)

than the claimant was receiving, or seeking special statutory

increments or allowances, etc. The important characteristics of

all these cases were: (a) Congress had not entrusted an

administrative officer or tribunal with the determination of the

claimant's eligibility for the particular pay he sought; (b) the

cases turned on pure issues of law or on specific issues of fact

which the court was to decide for itself (i.e., Congress had not

established any administrative tribunal to decide either the

factual or the legal questions); and (c) in general the cases called

upon the court to resolve sharp and narrow factual issues not

demanding judicial evaluation of broad concepts such as

'disability' (concepts which involve the weighing of numerous

factors and considerations as well as the exercise of expertise

and discretion).

Id. at 384-85.

In the present case, however, an administrative official or tribunal has

been entrusted with making the determination of whether to dismiss plaintiff

for disability and whether to deny her claim of eligibility for retirement for a

service-related injury. Moreover, that detennination was based on facts unique

to plaintiff, which the army, not the court is in the best position to assess. I.e.,

resolution of her claim did not turn on pure questions of law, such as, for

example, a class of individuals' entitlement to overtime pay. Finally, her case

does involve judicial review of broad concepts of disability, decided in the first

instance by the army. The decision to discharge plaintiff while she was still

a major, in other words, is the type of fact-bound, discretion-limited question

which needs to be resolved within the limitations period and not left for

resolution at some indefinite time in the future.

Plaintiffs motion for reconsideration is denied.

Senior Judge