Petition for Writ of Certiorari — Lewis B. Jones, Petitioner v. United States

No. _____

IN THE

Supreme Court of the United States

__________________

LEWIS B. JONES,

v.

UNITED STATES,

__________________

Petitioner,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

JONATHAN A. HERSTOFF

Counsel of Record

JASON A. KANTER

HAUG PARTNERS LLP

745 Fifth Avenue

New York, NY 10151

(212) 588-0800

jherstoff@haugpartners.com

jkanter@haugpartners.com

Counsel for Petitioner

September 15, 2022

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

10 U.S.C. § 1201 provides, in relevant part, that

a member of the armed forces is entitled to retirement

pay when the Secretary of Veterans Affairs assigns

him a disability rating of at least 30 percent. 10 U.S.C.

§ 1201(a), 1201(b)(3)(B). Petitioner Lewis B. Jones

(“Jones”) was separated from service in 1988 with a 10

percent disability rating based on migraines, after

being struck in the eye by the door of an armored

personnel carrier. Years later, after advances in

medical technology, it was determined that the

accident had, in addition to migraines, also caused

Traumatic Brain Injury with Post-Traumatic Stress

Disorder. Jones’ disability rating was increased, but

Jones, in 2020, was denied retirement pay. In what

dissenting Judge Newman termed “a significant

change in law and policy,” the United States Court of

Appeals for the Federal Circuit found that Jones’ 2020

suit to obtain retirement pay accrued in 1988 and was

therefore time-barred under the Tucker Act, even

though: (i) Jones’ disability rating was far below 30

percent in 1988; and (ii) it was not until 2020 that

Jones was denied retirement benefits while having a

disability rating of at least 30 percent. Moreover, the

Federal Circuit held that subsequent advances in

medical technology cannot suspend the accrual of a

claim for retirement pay. The questions presented are

as follows.

1. Whether a cause of action for retirement pay

can accrue and for the statute of limitations to run

before a service member receives a disability rating of

at least 30 percent, as the Federal Circuit held, or

ii

whether such a cause of action may instead be brought

after the service member is denied retirement pay

after attaining the requisite 30 percent disability

rating.

2. Whether the Federal Circuit erred in holding

that the “accrual suspension rule”—i.e., the principle

that the accrual of a cause of action against the United

States is suspended during the period of time that the

nature of the injury is inherently unknowable—is

categorically inapplicable to veterans’ injuries that

were previously unknowable due to insufficient

medical knowledge or technology, or to injuries that

were otherwise undiagnosable at the time of a service

member’s discharge from the Armed Services.

iii

PARTIES TO THE PROCEEDING

Petitioner is Lewis B. Jones, who was PlaintiffAppellant below.

Respondent is the United States.

RULE 29.6 STATEMENT

Petitioner is not a corporate entity.

STATEMENT OF RELATED PROCEEDINGS

•

Jones v. United States, No. 1:20-cv-00520MMS, United States Court of Federal

Claims. Judgment entered on August 25,

2020.

•

Jones v. United States, No. 20-2298, United

States Court of Appeals for the Federal

Circuit. Judgment entered on August 11,

2021 and vacated on March 31, 2022.

Judgment entered on March 31, 2022.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED........................................ i

PARTIES TO THE PROCEEDING .......................... iii

RULE 29.6 STATEMENT ......................................... iii

TABLE OF AUTHORITIES ..................................... vii

PETITION FOR WRIT OF CERTIORARI .................1

INTRODUCTION ........................................................1

OPINIONS BELOW ....................................................2

JURISDICTION ..........................................................2

STATUTES INVOLVED .............................................2

STATEMENT OF THE CASE ....................................2

REASONS FOR GRANTING THE WRIT ..................5

Because

the

Federal

Circuit’s

Misinterpretation of 10 U.S.C. § 1201

Departs from This Court’s Precedents,

Certiorari

Should Be

Granted on

Question 1 .........................................................5

The Federal Circuit’s Decision

Conflicts with Federal Statute-ofLimitations Principles ...........................5

v

The Federal Circuit’s Decision

Further Conflicts with This Court’s

Admonition that Any Ambiguity in a

Statute Governing Veteran Benefits

Should Be Construed in Favor of the

Veteran .................................................10

II.

Because

the

Federal

Circuit’s

Interpretation of the Accrual-Suspension

Rule Departs from This Court’s Precedents

Regarding the Construction of VeteranBenefit Statutes and the Discovery Accrual

Rule, Certiorari Should Be Granted on

Question 2 .......................................................11

A.

The Federal Circuit’s New MedicalTechnology Exception to the AccrualSuspension Rule Conflicts with This

Court’s Recognition that Veteran

Benefits Should Be Construed In

Favor of the Veteran ............................11

B.

The Federal Circuit Erred in Finding

that Jones Could Have Petitioned for

Redress at the Time of His Discharge

for a Then-Undiagnosable Injury ........14

This Case Is the Proper Vehicle to Decide

These Important Questions ............................18

CONCLUSION ..........................................................19

vi

APPENDIX

Appendix A

Opinion in the United States Court

of Appeals for the Federal Circuit

(March 31, 2022) ...................... App. 1

Appendix B

Orders Granting Panel Rehearing

and Denying Rehearing En Banc

(March 31, 2022) .................... App. 32

Appendix C

Opinion in the United States Court

of Appeals for the Federal Circuit

(August 11, 2021) ................... App. 36

Appendix D

Opinion and Order in the United

States Court of Appeals for the Court

of Federal Claims

(August 25, 2020) ................... App. 53

Appendix E

Judgment in the United States Court

of Appeals for the Court of Federal

Claims

(August 25, 2020) ................... App. 69

Appendix F

Order Denying Panel Rehearing and

Rehearing En Banc

(June 17, 2022)....................... App. 71

Appendix G

Statutory Provisions Involved

10 U.S.C. § 1201..................... App. 73

28 U.S.C. § 2501..................... App. 75

vii

TABLE OF AUTHORITIES

Cases

Bay Area Laundry & Dry Cleaning Pension Tr.

Fund v. Ferbar Corp. of Cal.,

522 U.S. 192 (1997) ................................... 7, 8, 9, 17

Coffy v. Republic Steel Corp.,

447 U.S. 191 (1980) ............................................... 13

Fishgold v. Sullivan Drydock & Repair Corp.,

328 U.S. 275 (1946) ............................................... 14

Franconia Assocs. v. United States,

536 U.S. 129 (2002) ............................................. 7, 8

Green v. Brennan,

578 U.S. 547 (2016) ............................................. 8, 9

Henderson v. Shinseki,

562 U.S. 428 (2011) ....................... 10, 11, 13, 14, 18

King v. St. Vincent’s Hospital,

502 U.S. 215 (1991) ......................................... 10, 13

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

138 S. Ct. 617 (2018) ............................................... 6

Real v. United States,

906 F.2d 1557 (Fed. Cir. 1990) ............................... 5

Rotella v. Wood,

528 U.S. 549 (2000) ......................................... 15, 16

viii

Rotkiske v. Klemm,

140 S. Ct. 355 (2019) ............................................... 7

Shinseki v. Sanders,

556 U.S. 396 (2009) ............................................... 13

United States v. Oregon,

366 U.S. 643 (1961) ............................................... 13

Statutes

10 U.S.C. § 1201 ................................................ passim

10 U.S.C. § 1201(a) .................................................. 5, 6

10 U.S.C. § 1201(b) ...................................................... 6

10 U.S.C. § 1201(b)(3)(B) ......................................... 5, 6

28 U.S.C. § 1254(1) ...................................................... 2

28 U.S.C. § 2501 ...................................... 2, 4, 5, 11, 13

Regulations

38 C.F.R. § 4.124a (1964) ...................................... 3, 13

38 C.F.R. § 4.124a (1988) .................................... 16, 17

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Lewis B. Jones (“Jones”) respectfully

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Federal

Circuit.

INTRODUCTION

Federal statute provides that a member of the

armed forces with less than 20 years of service may

obtain retirement pay only if the Secretary of Veterans

Affairs has assigned him a disability rating of at least

30 percent. Jones—a service member with less than

20 years of service—was separated from the military

in 1988 after an in-service blunt-impact injury, with a

disability rating of 10 percent based on a diagnosis of

migraines. Years later, after advances in medical

technology revealed that Jones’ in-service injury also

caused traumatic brain injury (“TBI”) with posttraumatic stress disorder (“PTSD”), Jones’ disability

rating was increased. In 2020, Jones was denied

retirement pay, despite having a disability rating in

excess of 30 percent. Jones promptly filed suit.

Nevertheless, the Court of Federal Claims dismissed

Jones’ suit as time-barred by the Tucker Act’s six-year

statute of limitations. This decision was based on the

conclusion that the statute of limitations began to run

upon Jones’ discharge in 1988. In a divided decision

that drew a dissenting opinion from Judge Newman,

the Federal Circuit concluded that a service member’s

suit for retirement pay will accrue regardless of

whether the statutory prerequisites of such

retirement pay have been met. The Federal Circuit

further reached the novel conclusion that Jones’

2

Tucker Act claims were not subject to the “accrual

suspension rule” because a lack of sufficient medical

technology is categorically ineligible to be the basis for

delaying the accrual of the claim. Because both

conclusions are inconsistent with federal statute-oflimitations principles and this Court’s pro-veteran

canon of statutory interpretation, certiorari should be

granted.

OPINIONS BELOW

The Federal Circuit’s opinion is reported at 30

F.4th 1094 and reproduced at App. 1-31. The panel’s

prior vacated opinion is reported at 7 F.4th 1376 and

reproduced at App. 36-52. The opinion of the Court of

Federal Claims is reported at 149 Fed. Cl. 703 and

reproduced at App. 53-68.

JURISDICTION

The court of appeals entered judgment on

March 31, 2022. On June 17, 2022, the court of

appeals denied a timely petition for rehearing. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTES INVOLVED

10 U.S.C. § 1201 is reproduced at App. 73-75.

28 U.S.C. § 2501 is reproduced at App. 75.

STATEMENT OF THE CASE

Jones entered active-duty service in the United

States Air Force in 1981. App. 3. In 1982, while

3

serving in Germany, he was struck in the eye by the

door of an armored personnel carrier. App. 3. The

impact resulted in several injuries, including but not

limited to intense headaches (migraines) and

Traumatic Brain Injury with PTSD. Suppl. Appx. 32. 1

In October 1988, Jones was referred to a

Medical Evaluation Board, which diagnosed Jones

with migraines but failed to diagnose his additional

Traumatic Brain Injury. App. 4; Suppl. Appx. 26.

Jones asserts—and the Government has not

disputed—that the technology necessary to diagnose

Jones’ Traumatic Brain Injury was not available then.

See Fed. Cir. Rec. 9 at 2. Based on the standard

schedule of rating disabilities in use by the U.S.

Department of Veterans Affairs at the time, Jones was

assigned a 10 percent disability rating associated with

migraines. App. 12; 38 C.F.R. § 4.124a (1964).

Disability ratings for migraines were based solely on

the frequency of the migraines.

In November 1988, the Medical Evaluation

Board referred Jones’ case to a Physical Evaluation

Board to consider whether Jones’ medical condition

rendered him physically unfit to serve in the Air Force.

App. 4.

The Physical Evaluation Board then

recommended that Jones be discharged from the Air

Force. App. 5. On December 29, 1988, Jones was

honorably discharged from the Air Force with

severance pay. App. 6.

1 “Suppl. Appx.” refers to pages from the supplemental appendix

filed with the court of appeals at docket entry 17.

4

In 2016, Jones was finally diagnosed with

Traumatic Brain Injury with PTSD, and he was

assigned a 30 percent disability rating for that injury

alone, in addition to his separate disability rating for

migraines.

Suppl. Appx. 32.

By 2017, Jones’

Traumatic Brain Injury with PTSD was rated 70

percent disabling, and in combination with his other

injuries, he was overall rated 100 percent disabled.

App. 6; Suppl. Appx. 32, 34.

In January 2020, the Air Force Board for

Correction of Military Records denied Jones’ request

for retirement pay. App. 6. On April 23, 2020, Jones

filed a complaint in the Court of Federal Claims

seeking review of that decision. App. 6. The Court of

Federal Claims granted the Government’s pre-answer

motion to dismiss, holding the complaint time-barred

under the Tucker Act, 28 U.S.C. § 2501. App. 7; App.

53-68. In a 2-1 decision, the Federal Circuit affirmed.

App. 1-31.

5

REASONS FOR GRANTING THE WRIT

I.

Because

the

Federal

Circuit’s

Misinterpretation of 10 U.S.C. § 1201

Departs from This Court’s Precedents,

Certiorari Should Be Granted on

Question 1

A.

The Federal Circuit’s Decision

Conflicts with Federal Statute-ofLimitations Principles

A Tucker Act claim must be filed “within six

years after such claim first accrues.” 28 U.S.C. § 2501.

The Federal Circuit’s conclusion that Jones’ cause of

action accrued in 1988—at a time when he had neither

been statutorily entitled to retirement pay nor had

been

denied

retirement

pay—conflicts

with

longstanding and fundamental limitations principles.

As noted above, 10 U.S.C. § 1201 unambiguously

provides that a disabled service member is not entitled

to retirement pay unless the Secretary has determined

that the service member’s disability is at least 30

percent. 10 U.S.C. §§ 1201(a), 1201(b)(3)(B). And the

Federal Circuit has correctly recognized that a Tucker

Act claim for entitlement to disability retirement does

not accrue until the appropriate board has finally

denied the claim or refused to hear it. Real v. United

States, 906 F.2d 1557, 1560 (Fed. Cir. 1990).

Therefore, Jones’ claim could not have accrued until:

(i) Jones obtained a disability rating of at least 30

percent; and (ii) the appropriate board finally denied

Jones’ claim for retirement pay. These conditions did

not exist simultaneously until 2020. Accordingly,

6

Jones’ 2020 complaint was timely filed. The panel

majority’s conclusion to the contrary is inconsistent

with this Court’s longstanding precedent. Certiorari

should be granted to review this issue.

In concluding that Jones could have brought

suit at a time when he lacked a disability rating of at

least 30 percent, the Federal Circuit misinterpreted

10 U.S.C. § 1201.

App. 15-17.

Section 1201

unambiguously provides that a service member with a

physical disability is entitled to retirement pay “if the

Secretary also makes the determinations with respect

to the member and that disability specified in

subsection (b).” 10 U.S.C. § 1201(a). Moreover,

subsection (b) provides, in relevant part, that

“[d]eterminations referred to in subsection (a) are

determinations by the Secretary that . . . the disability

is at least 30 percent under the standard schedule of

rating disabilities in use by the Department of

Veterans Affairs at the time of the determination.” 10

U.S.C. §§ 1201(b), (b)(3)(B). When the plain language

of a statute is unambiguous, a court’s “inquiry begins

with the statutory text, and ends there as well.” Nat’l

Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 631 (2018)

(internal quotation mark omitted).

Here, the plain language of § 1201 makes clear

that Jones was statutorily precluded from bringing a

claim for retirement pay without a disability rating of

at least 30 percent. Nevertheless, the Federal Circuit

concluded that Jones could have brought his claim in

1988, at a time when his disability rating was only 10

percent. App. 15-17. This conclusion conflicts with

the unambiguous language of § 1201. Accordingly, as

7

Judge Newman correctly recognized in her dissenting

opinion, the panel majority erred in “hold[ing] that

Mr. Jones’ claim became time-barred during the

period when, by statute, he could not have brought the

claim.” App. 23. Although the panel majority cites

cases in which service members have challenged their

disability ratings (App. 15-16), these cases do not

address the critical question presented here: whether

a cause of action for retirement pay under 10 U.S.C.

§ 1201 can accrue in the absence of a determination by

the Secretary that the service member is at least 30

percent disabled.

The unambiguous statutory

language provides that it cannot.

Because Jones’ action for retirement pay under

10 U.S.C. § 1201 could not have accrued without Jones

having a disability rating of at least 30 percent, the

Federal Circuit’s decision conflicts with federal

statute-of-limitations principles. As this Court has

recognized, the Tucker Act does not “create[] a special

accrual rule for suits against the United States.”

Franconia Assocs. v. United States, 536 U.S. 129, 145

(2002). And precedent makes clear that a statute of

limitations will not begin to run before the cause of

action accrues.

“Congress legislates against the standard rule

that the limitations period commences when the

plaintiff has a complete and present cause of action.”

Rotkiske v. Klemm, 140 S. Ct. 355, 360 (2019) (internal

quotation marks omitted). “[A] cause of action does

not become ‘complete and present’ for limitations

purposes until the plaintiff can file suit and obtain

relief.” Bay Area Laundry & Dry Cleaning Pension Tr.

8

Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997).

“Although the standard rule can be displaced such

that the limitations period begins to run before a

plaintiff can file suit, [this Court] will not infer such

an odd result in the absence of any such indication in

the text of the limitations period.” Green v. Brennan,

578 U.S. 547, 554 (2016) (internal quotation marks

omitted); cf. Franconia Assocs., 536 U.S. at 145-49

(applying standard federal statute-of-limitations

principles in the context of the Tucker Act). The text

of the limitations period here contains no indication

that the time to file suit for retirement pay starts to

run before the statutory prerequisite for such pay has

been satisfied. Accordingly, the Federal Circuit erred

in holding that a veteran must sue for retirement pay

before obtaining the statutorily required 30 percent

disability rating.

By holding that Jones’ Tucker Act claim

accrued in 1988—before Jones obtained a disability

rating of at least 30 percent and was denied

retirement pay—the Federal Circuit contravened this

Court’s statute-of-limitations principles outlined

above. Bay Area Laundry is instructive. There, this

Court considered when the statute of limitations

began to run on a pension fund’s action to collect

unpaid withdrawal liability. 522 U.S. at 195. In

rejecting the argument that the statute of limitations

begins to run from the date the employer withdraws

from the plan, this Court explained that “[s]uch a

result is inconsistent with basic limitations principles”

because “[a] plan cannot maintain an action until the

employer misses a scheduled withdrawal liability

payment.” Id. at 200-01. Accordingly, this Court held

9

that “[t]he statute of limitations does not begin to run”

until the employer misses a payment. Id. at 201.

Similarly here, the statute precludes an award of

retirement pay unless the service member obtains a

disability rating of at least 30 percent. Therefore, a

cause of action for retirement pay cannot accrue—and

the statute of limitations cannot begin to run—until

the service member is denied retirement pay after

obtaining a disability rating of at least 30 percent.

Green is similarly instructive. There, this

Court considered when the statute of limitations

begins to run for a constructive-discharge claim.

Green, 578 U.S. at 549-50. This Court concluded that

“such a claim accrues only after an employee resigns.”

Id. at 554. In so holding, it observed that constructivedischarge

claims

contain

two

elements:

(i) employment discrimination “to the point where a

reasonable person in [the employee’s] position would

have felt compelled to resign[;]” and (ii) resignation of

the employee. Id. at 555. “Only after both elements

are satisfied can he file suit to obtain relief.” Id.

Therefore, this Court held that the statute of

limitations begins to run when the employee resigns,

which is when “he has a complete and present cause

of action.” Id. at 556.

The Federal Circuit’s decision contravenes this

Court’s precedents, as it holds that the statute of

limitations began to run decades before Jones had “a

complete and present cause of action.” As noted above,

the right to retirement pay under § 1201 is not

triggered until the Secretary has assigned the service

member a disability rating of at least 30 percent.

10

Because Jones’ disability rating was only 10 percent

in 1988, the Federal Circuit erred in concluding that

Jones’ action accrued—and that the statute of

limitations began to run—in 1988.

Judge Newman’s dissenting opinion is

persuasive. App. 28 (recognizing that “[b]y statute,

entitlement to disability retirement requires at least

30% disability or 20 years of service” and explaining

that “[s]ince such events had not occurred in 1988, the

Tucker Act statute of limitations cannot have accrued

in 1988”). Nothing in the text of § 1201 or in the

Tucker Act suggests that a disabled service member is

entitled to sue for retirement pay prior to obtaining a

rating of at least 30 percent. Because the Federal

Circuit’s decision departs from fundamental

limitations principles, certiorari should be granted.

B.

The Federal Circuit’s Decision

Further Conflicts with This Court’s

Admonition that Any Ambiguity in a

Statute Governing Veteran Benefits

Should Be Construed in Favor of the

Service Member

This Court “ha[s] long applied ‘the canon that

provisions for benefits to members of the Armed

Services are to be construed in the beneficiaries’

favor.’” Henderson v. Shinseki, 562 U.S. 428, 441

(2011) (quoting King v. St. Vincent’s Hosp., 502 U.S.

215, 220-21 n. 9 (1991)). For example, in Henderson,

this Court used this canon in concluding that the time

to appeal a decision to the Court of Appeals for

Veterans Claims is not a jurisdictional time limit.

11

Henderson, 562 U.S. at 441. The Federal Circuit’s

decision here flaunts this longstanding canon. Rather

than recognizing that § 1201 does not provide a cause

of action for retirement pay until the service member

has at least a 30 percent disability rating and is denied

retirement pay, the Federal Circuit instead concluded

that Jones had a ripe claim long before he obtained the

requisite rating, based largely on its conclusion that

Jones should have known of the severity of his injuries

in 1988. App. 17-18. In addition to contravening the

plain language of the statute, the Federal Circuit’s

statutory interpretation is at war with the pro-veteran

canon. Certiorari should be granted to address this

issue.

II.

Because

the

Federal

Circuit’s

Interpretation of the Accrual-Suspension

Rule

Departs

from

This

Court’s

Precedents Regarding the Construction of

Veteran-Benefit

Statutes

and

the

Discovery Accrual Rule, Certiorari Should

Be Granted on Question 2

A.

The Federal Circuit’s New MedicalTechnology

Exception

to

the

Accrual-Suspension Rule Conflicts

with This Court’s Recognition that

Veteran

Benefits

Should

Be

Construed In Favor of the Service

Member

It is well established that “the accrual of a claim

against the United States is suspended, for purposes

of 28 U.S.C. § 2501, until the claimant knew or should

12

have known that the claim existed.” In rejecting

Jones’ accrual-suspension arguments, however, the

Federal Circuit held for the first time that veterans’

disability claims that become knowable due to

advancements in technology are not entitled to accrual

suspension:

To grant Mr. Jones relief in the

circumstances of this case would, we

believe, impermissibly open the door to

the resurrection of previously decided

disability retirement claims simply

because medical knowledge advanced

after the claims were first decided by the

military service involved.

App. 21. This new and unprecedented medicaltechnology exception to the accrual-suspension rule

leaves veterans who have major-but-hidden or

undiagnosable injuries with little or no recourse under

10 U.S.C. § 1201. The Federal Circuit’s only cited

support for this limitation on the accrual-suspension

rule is the language in 10 U.S.C. § 1201 requiring the

Secretary of Veterans Affairs to assess disability

based on the “standard schedule of rating disabilities

in use by the [VA] at the time of the determination.”

App. 21-22. This provision, however, in no way

prohibits the operation of the accrual-suspension rule.

And neither the VA nor the courts below have

considered whether the VA Schedule at the time of

Jones’ discharge would have entitled him to disability

retirement if his Traumatic Brain Injury with PTSD,

13

whether under that label or another, had been

properly diagnosed at the time of Jones’ discharge. 2

The Federal Circuit’s reading of § 1201 to create

a limitation on the suspension of veterans’ claims

under § 2501 conflicts with this Court’s precedent

recognizing: (i) that in judicial review of VA decisions,

the service member is to be given great solicitude, and;

(ii) that provisions for benefits to members of the

Armed Services are to be construed in the

beneficiaries’ favor. For example, in Henderson, this

Court reiterated that “[t]he solicitude of Congress for

veterans is of long standing”, and that this solicitude

“place[s] a thumb on the scale in the veteran’s favor in

the course of administrative and judicial review of VA

decisions.” 562 U.S. 428, 440 (2011) (quoting United

States v. Oregon, 366 U.S. 643 (1961); Shinseki v.

Sanders, 556 U.S. 396, 416 (2009)). And the Court

further noted that it has “long applied ‘the canon that

provisions for benefits to members of the Armed

Services are to be construed in the beneficiaries’

favor.’” Henderson, 562 U.S. at 441 (quoting King v.

St. Vincent’s Hospital, 502 U.S. 215, 220-221, n.9

(1991) and citing Coffy v. Republic Steel Corp., 447

2 For example, the VA Schedule in place at that time provided for

a diagnosis of “chronic brain syndrome associated with brain

trauma” (diagnosis code 9304). 38 C.F.R. § 4.124a (1964). Under

this diagnosis, anything more than “slight impairment of social

and industrial adaptability” would have entitled Jones to at

least a 30% disability rating. 38 C.F.R. § 4.124a (1964). The

courts below had no occasion to consider this issue or any others

because the Court of Federal Claims dismissed the case on a

pre-answer motion to dismiss and did not provide an

opportunity for Jones to develop the record through discovery.

14

U.S. 191, 196 (1980); Fishgold v. Sullivan Drydock &

Repair Corp., 328 U.S. 275, 285 (1946)).

As Judge Newman aptly articulated, “if medical

knowledge indeed has advanced in a way relevant to a

veteran’s claim, surely the door should be opened

wider—not slammed shut.” App. 30. Here, the

language of § 1201 does not contain a restriction on

the accrual suspension of veterans’ disability claims,

and Petitioner is not aware of any other class of

plaintiff whose Tucker Act claims are subject to such

a restriction. Accordingly, the Federal Circuit erred

by construing § 1201 as restrictively as possible

against veterans. See Henderson, 526 U.S. at 440-441.

Because the Federal Circuit’s decision conflicts

with the pro-veteran solicitude recognized by this

Court, and because it departs from the wellestablished principle that the accrual of a Tucker Act

claim is suspended where a party does not know or

should not reasonably have known that there was a

legal injury, certiorari should be granted to address

this issue.

B.

The Federal Circuit Erred in

Finding that Jones Could Have

Petitioned for Redress at the Time of

His

Discharge

for

a

ThenUndiagnosable Injury

Jones asserts and the Government has not

disputed that: (i) at the time of Jones’ discharge, the

medical technology or knowledge to diagnose Jones’

Traumatic Brain Injury with PTSD did not exist; and

15

(ii) Jones did not learn that he had a Traumatic Brain

Injury with PTSD until more than 27 years later. Fed.

Cir. Rec. 9 at 2; Suppl. Appx. 32. At the time of his

discharge, the Medical Evaluation Board failed to

diagnose Jones’ Traumatic Brain Injury with PTSD.

Instead, it diagnosed Jones with “migraines” only,

which is a separate injury for which Jones has always

maintained a separate disability rating. Suppl. Appx.

32. The Federal Circuit found that Jones “could have

sought earlier redress” by petitioning for a higher

disability rating at the time of his discharge because

he knew that his symptoms were “incapacitating” and

“would positively hinder his future employment.”

App. 20-21 (quotations omitted). This determination

misapprehends the process by which disability ratings

are assigned and conflicts with this Court’s

precedents.

First, this Court has recognized that “in

applying a discovery accrual rule, we have been at

pains to explain that discovery of the injury, not

discovery of the other elements of a claim, is what

starts the clock.” Rotella v. Wood, 528 U.S. 549, 555

(2000). It was therefore the discovery of Jones’ legal

injury—i.e., that he had a separate undiagnosed

wound that would have entitled him to retirement—

that should have started the clock here. As Judge

Newman correctly explained, “[t]he accruing of a

statutory bar requires that the barring events were

known or reasonably knowable.” App. 27. The

Federal Circuit’s conclusion that Jones could have

petitioned for relief conflicts with this Court’s finding

in Rotella because it is undisputed that neither Jones

nor any medical professional discovered or could have

16

discovered his Traumatic Brain Injury with PTSD at

the time of his discharge. Thus, Jones could not have

discovered the legal injury entitling him to relief until

there was sufficient technology to diagnose his

Traumatic Brain Injury with PTSD. See Rotella, 529

U.S. at 555.

Second, the Federal Circuit incorrectly stated

that Jones could have sought a higher disability rating

to account for his separate Traumatic Brain Injury

with PTSD. App. 20-21. Veterans’ disability ratings

are strictly dictated by the “standard schedule of

rating disabilities in use by the Department of

Veterans Affairs” (see 10 U.S.C. § 1201), otherwise

known as “38 CFR Book C” or the “VA Schedule.” The

VA Schedule does not permit ratings for undiagnosed

conditions, and Jones only diagnosis at the time of his

discharge was his separate “migraine” injury. As set

forth in § 4.124a of the VA Schedule, Jones’ migraine

disability rating was to be based solely on the

frequency of his migraines, and could not be increased

to account for Jones’ other symptoms or his

undiagnosed Traumatic Brain Injury with PTSD:

8100................................................ Migraine:

With very frequent completely prostrating

and prolonged attacks productive of severe

economic inadaptability....……..…………50

With characteristic prostrating attacks

occurring on an average once a month over

last several months.................................... 30

With characteristic prostrating attacks

averaging one in 2 months over last several

months……………………….………......... 10

With less frequent attacks.......................... 0

17

38 C.F.R § 4.124a (1988). There is no evidence in the

record that would have entitled Jones to a higher

disability rating for his “migraine” diagnosis at the

time of his discharge, regardless of how

“incapacitating” he believed those migraines to be.

Accordingly, Jones could not have sought a higher

“migraine” disability rating to account for his thenundiagnosable Traumatic Brain Injury with PTSD.

Because Jones’ additional injuries were not

diagnosable at the time of his discharge, there was no

possibility that Jones could have received a rating for

his Traumatic Brain Injury with PTSD, and the

Federal Circuit was incorrect to conclude that Jones

“could have sought earlier redress” in view of his

migraine symptoms. As noted above, “a cause of

action does not become ‘complete and present’ for

limitations purposes until the plaintiff can file suit

and obtain relief.” Bay Area Laundry, 522 U.S. at 201.

Under the accrual-suspension rule, this could not

occur until after April, 2016, when Jones was finally

diagnosed with his Traumatic Brain Injury with

PTSD. Id.

Finally, the Federal Circuit erred in holding

Jones to a higher standard than the Medical

Evaluation Board that diagnosed him. Jones is not a

doctor and lacked the knowledge to diagnose his own

injuries. Jones reasonably relied on the trained

medical professionals who evaluated Jones and had

full knowledge of his symptoms. Holding Jones to a

higher standard than these medical professionals

again runs contrary to the solicitude in favor of service

18

members that this Court recognized in Henderson.

See Henderson, 526 U.S. at 440-41.

Certiorari should be granted to address these

issues.

III.

This Case Is the Proper Vehicle to Decide

These Important Questions

This case is an excellent vehicle to decide the

important questions of veteran’s law presented by this

case. With respect to the first question presented, the

Federal Circuit has misinterpreted the plain language

of a statute that was designed to provide service

members with retirement pay when they are seriously

injured in the line of duty. There is no dispute that

Jones had only a 10 percent disability rating in 1988.

Yet under the Federal Circuit’s interpretation of 10

U.S.C. § 1201, Jones’ time to file suit started running

then, even though the statute precludes retirement

pay when the disability rating is less than 30 percent.

As Judge Newman’s dissenting opinion aptly states,

the majority’s decision is “a significant change in law

and policy.” App. 31. Because this change in law and

policy is irreconcilable with the statutory text and

improperly shuts Jones (and all other service

members similarly situated) out of court, certiorari is

warranted.

With respect to the second question presented,

the Federal Circuit’s creation of a novel and

unsupported exception to the accrual-suspension rule

that is applicable only to veterans violates the longstanding canon that statutes governing service-

19

member benefits are to be construed in favor of the

service member. The panel majority’s new rule

improperly shuts out of court those service members

who—due to a lack of sufficient medical technology to

diagnose their service-related injuries—are unable to

establish a right to retirement pay at the time of their

discharge.

Additionally, the panel majority has

misapprehended the process by which disability

ratings are assigned, and the Federal Circuit’s

decision improperly requires service members to seek

judicial review of their rating for injuries that are not

then-diagnosable. This essentially abrogates the

accrual-suspension rule for veterans with latent

service-related injuries. For these reasons, certiorari

should be granted.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Jonathan A. Herstoff, Esq.

Counsel of Record

Jason A. Kanter, Esq.

HAUG PARTNERS LLP

745 Fifth Avenue

New York, New York 10151

212-588-0800

jherstoff@haugpartners.com

jkanter@haugpartners.com

Counsel for Petitioner

Lewis B. Jones