# Harold Grubin v. The United States > United States Court of Claims · June 12, 1964 · 333 F.2d 861 URL: https://www.frixlaw.com/law-library/cases/9450143 ## Case - **Full name:** Harold GRUBIN v. the UNITED STATES - **Court:** United States Court of Claims - **Decided:** June 12, 1964 - **Citations:** 333 F.2d 861; 166 Ct. Cl. 272; 1964 U.S. Ct. Cl. LEXIS 101 - **Precedential status:** Published - **Opinion:** Dissent by Whitaker - **Judges:** Jones, Whitaker, Laramore, Durfee, Davis - **Cited by:** 17 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/9450143 ## Opinion text WHITAKER, Judge (dissenting). I cannot agree to the court’s disposition of this ease. Congress has vested in the several Secretaries of the Armed Forces the authority to determine whether an officer is entitled to be discharged for physical disability and thus draw increased retirement pay. To discharge this responsibility, the Secretaries have set up Disposition Boards and Retiring Boards. When it appears an officer is probably entitled to such retirement, he is first sent before a Disposition Board for the purpose of ascertaining whether his physical condition merits consideration of his case by a Retiring Board. When the Retiring Board considers his case and detérmines he is not entitled to such retirement, and the Secretary approves its action, that is the end of the matter. No court is given jurisdiction to review the action of the Board and the Secretary. But, since we have jurisdiction of actions founded on any law of Congress and the officer claims that he is entitled to disability retirement under the law, we have quite properly said that the claimant is entitled to a fair and impartial application of the law to his case, and that if, instead, the Board and the Secretary act arbitrarily or capriciously, we have jurisdiction to determine the claimant’s rights under the law. But only where the claimant has been denied a fair and impartial consideration of his case do we acquire jurisdiction. Before a claimant can come here at all he must show his case has not had fair and impartial consideration by the Board set up by the Secretary to determine the matter, or a refusal to submit his case to such a Board. This Board is the Retiring Board. Has plaintiff shown this? Can he show it? He cannot. He cannot, because he himself, by his own act, prevented consideration of his case by this Board. Had plaintiff permitted the Retiring Board to consider his case and had it acted arbitrarily or capriciously, plaintiff’s cause of action in this court would have then accrued. By refusing to go before the Board, by his own act, he cannot extend the period within which he must bring suit here or be barred from ever doing so. This court decided otherwise in Harper v. United States, Ct.Cl., No. 206-59, 310 F.2d 405 , decided November 7, 1962. As my concurring opinion on the denial of defendant’s motion for a rehearing, 312 F.2d 436 (rendered January 11, 1963) shows, I was not satisfied with the Harper decision at the outset; and, upon further reflection, I have come to the conclusion that that decision was erroneous and should be overruled. I think the statute of limitations begins to run when a member of the armed services, after having been offered an opportunity to appear before a retiring board, refuses to appear before it. As *867 I have said, the statute vests in the Secretary the authority to determine whether a person is entitled to disability retirement, and the Secretary acts through retiring boards. We held in Friedman v. United States, Ct.Cl., No. 377-60, decided November 7, 1962, 310 F.2d 381 , cert. denied, Lipp et al. v. United States, 373 U.S. 932 , 83 S.Ct. 1540 , 10 L.Ed.2d 691 (1963), that the action of the Secretary in that manner, or his refusal so to act, started the statute running. A subsequent appeal to the Correction Board did not extend the time within which suit could be commenced. That holding was grounded partly on the hypothesis that a person by his own act — an appeal to the Correction Board — could not extend the statutory period for bringing suit. (Slip op. page 26.) That policy was violated in Harper, and it is violated in the circumstances of this case. This plaintiff could have had his rights adjudicated in 1946, when the Army offered him a Retiring Board. He chose not to do so. Under the holding in this ease, he is permitted to wait until 1957 — 11 years later — to claim, for the first time, that he was physically disabled at the time of his discharge and to ask for disability retired pay from the date of his discharge. Not only 11 years is he permitted to wait, but if his cause of action first accrued when the Correction Board denied his claim, as the majority holds, he may wait an additional six years before bringing suit upon his claim, 17 years in all. Had he gone before the Retiring Board in 1946, which he could have done, and had that board declined to give him the right to retired pay, his cause of action would have accrued then, and had he not brought suit in this court within six years from that time, he would have been barred from doing so. But, by refusing to go before the board, the majority says, he extends the time when his cause of action accrues for 11 years and the time for initiating suit for 17 years. May a person by his own act thus extend the statute of limitations ? I do not think so. Yet, the result in this case accords to this plaintiff a self-starting statute of limitations, and this is something I believe the Friedman case intended to prevent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9450143. Public record. Not legal advice.