# Thomas v. United States

> United States Court of Federal Claims · April 20, 2023

URL: https://www.frixlaw.com/law-library/cases/9388529

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** April 20, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Stephen S. Schwartz
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9388529

## How later opinions describe it (automated extraction)

- holding statute money-mandating if government “has no discretion whether to pay out retirement funds”
- explaining that “the special statute of limitations governing the Court of Federal Claims requires” that timeliness be considered a jurisdictional question, calling for “sua sponte consideration”

## Opinion text

In the United States Court of Federal Claims
No. 22-426C
(Filed: April 20, 2023)
FOR PUBLICATION
***************************************
EVELYN M. RODRIGUEZ THOMAS, *
*
Plaintiff, *
*
v. *
*
THE UNITED STATES, *
*
Defendant. *
*
***************************************
William E. Cassara, William E. Cassara, P.C., Evans, GA, for Plaintiff.
Brittney M. Welch, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C., for Defendant,
United States. With her on briefs were Brian M. Boynton, Principal Deputy Assistant
Attorney General, Patricia M. McCarthy, Director, William J. Grimaldi, Assistant
Director, as well as Andrea M. Downing, General Attorney, Office of General Counsel,
General Law Division, U.S. Department of Health and Human Services.
OPINION AND ORDER
Plaintiff Evelyn M. Rodriguez Thomas challenges the calculation of her retired
pay as a former member of the United States Public Health Service Commissioned
Corps (the “Commissioned Corps”). The government denies that Plaintiff’s retired pay
was calculated in error. The parties’ cross-motions for judgment on the
administrative record are fully briefed.1 Plaintiff’s motion is DENIED and the
government’s motion is GRANTED.

BACKGROUND
Plaintiff served with the Commissioned Corps as a commissioned officer for
sixteen years, five months, and seven days. Administrative Record at 43 (ECF 12)
(“A.R.”). She retired in September 2020. A.R. at 50. Before joining the Commissioned
Corps, she had worked for three and a half years in the civil service at the National
Institutes of Health, a different component of the United States Public Health

1See Def.’s Mot. for J. on the Admin. R. (ECF 13) (“Def.’s Mot.”); Pl.’s Cross-Mot. & Resp. for J. on the
Admin. R. (ECF 19) (“Pl.’s Cross-Mot.”); Def.’s Resp. & Reply (ECF 20) (“Def.’s R&R”).
Service. Id. at 34, 40, 43. She also completed four years of medical school and a one-
year internship before joining the National Institutes of Health. Id. at 43.
When she retired from the Commissioned Corps, Plaintiff became eligible for
retired pay. The amount of her retired pay depends on a statutory formula based on
her years of service. See 42 U.S.C. § 212(a)(4). Initially, the government credited
Plaintiff with (1) three and a half years for civil service, (2) sixteen and a half years
for service as a commissioned officer, and (3) one and a half years for her education.
A.R. at 13, 52. That yielded a total of twenty-one and a half years. Id. at 13, 52.
Plaintiff disputed the government’s calculation before the Board for Correction of
Public Health Service Commissioned Corps Records (“the Board”), arguing that she
was entitled to five years of credit for her education. Id. at 10.
The Board determined that the government had used the wrong method to
calculate Plaintiff’s years of service, but had reached the correct figure. According to
the Board, Plaintiff should have been credited for all her time as a commissioned
officer, plus the full five years of her education. Id. at 52, 37. But the Board also ruled
that Plaintiff should not have been credited for her work with the civil service. Id. at
52, 37. The government’s errors thus cancelled out: Plaintiff should have received an
extra three and a half years of credit for education, but should not have received three
and a half years of credit for civil service. Id. at 52, 37. The Board thus concluded that
Plaintiff was not entitled to relief. Id. at 52, 69–71.
Plaintiff sued in this Court, again arguing that she is entitled to credit for civil
service time, education, and time in uniformed service.

DISCUSSION
I. Jurisdiction
The United States Court of Federal Claims has jurisdiction under the Tucker
Act to adjudicate “any claim against the United States founded … upon … any Act of
Congress or any regulation of an executive department … in cases not sounding in
tort.” 28 U.S.C. § 1491(a)(1). Because the Tucker Act is “a jurisdictional statute [that]
does not create any substantive right enforceable against the United States for money
damages,” United States v. Testan, 424 U.S. 392, 398 (1976) (citing Eastport S.S.
Corp. v. United States, 178 Ct. Cl. 599, 605–07 (1967)), parties asserting Tucker Act
jurisdiction must “identify a substantive right for money damages against the United
States, separate from the Tucker Act itself.” Todd v. United States, 386 F.3d 1091,
1094 (Fed. Cir. 2004). That requires a “money-mandating” source of law, i.e., a statute
or regulation that “can fairly be interpreted as mandating compensation by the
Federal Government for the damage sustained and is reasonably amenable to the
reading that it mandates a right of recovery in damages.” Jan’s Helicopter Serv., Inc.

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v. F.A.A., 525 F.3d 1299, 1307 (Fed. Cir. 2008) (quotes and citations omitted) (quoting
United States v. Mitchell, 463 U.S. 206, 217 (1983), and United States v. White
Mountain Apache Tribe, 537 U.S. 465, 473 (2003)).
Plaintiff’s claims arise under 42 U.S.C. § 212. That act is money-mandating
because it entitles commissioned officers to retirement pay based on a mandatory
calculation method. Fisher v. United States, 402 F.3d 1167, 1174–75 (Fed. Cir. 2005)
(holding statute money-mandating if government “has no discretion whether to pay
out retirement funds”).
Plaintiff’s claims are also timely. John R. Sand & Gravel Co. v. United States,
552 U.S. 130, 132 (2008) (explaining that “the special statute of limitations governing
the Court of Federal Claims requires” that timeliness be considered a jurisdictional
question, calling for “sua sponte consideration”). Plaintiff had six years after her claim
accrued in which to file suit in this Court. 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 claim
“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.”
Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (internal quotes
omitted). Plaintiff retired in September 2020 and the Board denied her request for
relief in July 2021. Both dates are well within the six-year statute of limitations.
II. Merits
Plaintiff bears the burden of showing that the Board’s decision was arbitrary,
capricious, unsupported by substantial evidence, or contrary to applicable statutes
and regulations. Roth v. United States, 378 F.3d 1371, 1381 (Fed. Cir. 2004); Koretsky
v. United States, 57 Fed. Cl. 154, 158 (2003); Porter v. United States, 163 F.3d 1304,
1312 (Fed. Cir. 1998). She argues that under 42 U.S.C. § 212, she is entitled to credit
for her time in the Commissioned Corps, plus credit for both her education and her
time in civil service. Pl.’s R&R at 6. The facts of this case are undisputed, and the
error Plaintiff alleges is purely legal. Her interpretation is contrary to the plain
language of the statute.
When calculating service credit for Commissioned Corps officers’ retired pay,
the government is required to use one of two calculations: the “general” method or
the “alternate” method. See 42 U.S.C. § 212(a)(4)(A), (B); see also A.R. 52. The
government must use whichever method results in the highest service credit, and
therefore the highest retired pay. 42 U.S.C. § 212(a)(4)(B).

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Under the general method, an officer gets credit for “each year of active
service.” See 42 U.S.C. § 212(a)(4)(A). “Active service” is defined by 42 U.S.C. § 212(d)
(in relevant part) as “(1) all active service in any of the uniformed services,” and
“(2) active service with the Public Health Service, other than as a commissioned
officer[.]” The Commissioned Corps is a uniformed service. 10 U.S.C. § 101(a)(5)(C).
But the general method does not permit credit for education, which is not within the
definition of “active service.” See A.R. 52. Under the general method, Plaintiff thus
would have been entitled to credit for (1) her time in the Commissioned Corps (sixteen
and a half years), plus (2) her time in the Public Health Service when she was not a
commissioned officer (three and a half years) — a total of twenty years.
Under the alternate method, the government must credit (as relevant here)
(1) all “years of active service (determined without regard to subsection (d)) as a
member of a uniformed service,” plus (2) four years for medical school and one year
for a medical internship less any time when active service and medical education
overlap. See 42 U.S.C. § 212(a)(4)(B); see also A.R. 52. Requiring that years of active
service be determined “without regard to subsection (d)” excludes non-uniformed
Public Health Service employment from the calculation. See 42 U.S.C. § 212(d)(2); see
also 10 U.S.C. § 101(a)(5)(C) (defining “uniformed service” to include the
Commissioned Corps but not other components of the Public Health Service). The
alternate method would thus credit Plaintiff with five years of education plus her
sixteen and a half “years of active service … as a member of the uniformed service,”
resulting in twenty-one and a half years of service — the figure the Board reached.
A.R. 52.
Although Plaintiff argues that non-uniformed active service should be counted
under the alternate method, Pl.’s R&R at 6, the language of the statute is plain.
Commissioned Corps officers receive credit for their time as an employee “other than
as a commissioned officer” without credit for education, 42 U.S.C. §§ 212(a)(4)(A),
212(d), or they can receive credit for their education but not their time outside a
“uniformed service,” 42 U.S.C. §§ 212(a)(4)(B). Plaintiff, a uniformed officer for
sixteen and a half years, receives credit for either three and a half years of civil service
time or five years of education.
I therefore conclude that the Board did not err in calculating Plaintiff’s
retirement by giving her credit for her education but not her time in civil service.

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CONCLUSION
Plaintiff’s motion is DENIED and Defendant’s motion is GRANTED. The case
is DISMISSED.
The Clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.
s/ Stephen S. Schwartz
STEPHEN S. SCHWARTZ
Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9388529. Public record. Not legal advice.