Fuller v. United States

14 Cl. Ct. 542, 1988 U.S. Claims LEXIS 55, 1988 WL 30036
CourtUnited States Court of Claims
DecidedApril 4, 1988
DocketNo. 529-87C
StatusPublished
Cited by14 cases

This text of 14 Cl. Ct. 542 (Fuller v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fuller v. United States, 14 Cl. Ct. 542, 1988 U.S. Claims LEXIS 55, 1988 WL 30036 (cc 1988).

Opinion

OPINION

MARGOLIS, Judge.

In this military pay case, plaintiff, a former enlisted man in the United States Naval Reserve, seeks disability retirement pay for the twenty-four years since his discharge. The United States District Court for the Northern District of California transferred the case to this court on April 17, 1987. See Fuller v. United States, No. C-86-20874 SW (N.D.Cal. Apr. 20, 1987). Defendant has moved for dismissal arguing that the statute of limitations bars plaintiff’s claim and that the Claims Court lacks jurisdiction over Veterans’ Administration and Social Security Administration benefit claims. After a review of the entire record, defendant’s motion to dismiss is granted.

FACTS

The plaintiff, Robert L. Fuller, enlisted in the United States Naval Reserve on June 20, 1959 and was ordered to active duty on July 14, 1961. On November 1, 1962, while serving on board the USS RANGER, plaintiff was admitted to the ship’s sick list for suspected sleepwalking. After an examination, plaintiff’s condition was listed as “DIAGNOSIS UNDETERMINED (SOM[543]*543NAMBULISM, Cause Unknown) #9190.” That same day, plaintiff was transferred to the United States Naval Hospital in Oakland, California. On November 22, 1962, following medical, psychological, and psychiatric examinations, plaintiff’s diagnosis was revised to “SCHIZOPHRENIC REACTION, LATENT, # 3005.”

Plaintiff subsequently appeared before a Navy Board of Medical Survey (BMS). In a report dated November 29, 1962, the BMS concluded:

It is the opinion of the Board that this member Robert Lawrence FULLER, does not meet the minimum standards of enlistment or induction and that he is unfit for further Naval Service by reason of SCHIZOPHRENIC REACTION, LATENT, # 3005, and that this physical disability was neither incurred nor aggravated by service.

The BMS informed plaintiff of its determination, offered him an opportunity to rebut its findings, and fully advised him of his right to demand a hearing before a Physical Evaluation Board (PEB) prior to his discharge. Plaintiff, however, declined to submit a rebuttal statement and, on November 29, 1962, voluntarily executed a formal, written waiver of his right to demand a hearing before the PEB and requested an administrative discharge from Naval service. The Navy honorably discharged plaintiff on December 7, 1962.

In November 1986, plaintiff discovered information that led him to believe that his physical disability, for which he was discharged, could not have existed prior to his order to active Naval service. Later that month, plaintiff, seeking correction of his military record and recovery of disability retirement pay, petitioned the Board for Correction of Naval Records (BCNR).

The BCNR solicited and received comments and recommendations from the Navy’s Central Physical Evaluation Board (CPEB). The CPEB responded that the plaintiff was unfit for enlistment due to a preexisting condition that was not incurred in or aggravated by service. The CPEB further found that plaintiff was competent at the time he signed a valid waiver refusing a hearing before the PEB. The CPEB recommended that the BCNR deny the plaintiff’s petition for benefits. The BCNR then dismissed plaintiff’s claim on November 3, 1987 on the grounds that it had been untimely filed.

On December 16, 1986, plaintiff commenced an action in the United States District Court for the Northern District of California asserting claims under the Federal Tort Claims Act and the Tucker Act. The district court, by order dated April 17, 1987, directed that plaintiff’s Tucker Act claims be transferred to the United States Claims Court. Plaintiff subsequently filed a complaint in this court on August 25, 1987.

DISCUSSION

A. Statute of Limitations

The statute of limitations bars lawsuits after a prescribed period of time to avoid litigation of stale claims and to protect parties from suit after memories have faded, witnesses have died or disappeared, and evidence has been lost. Braude v. United States, 218 Ct.Cl. 270, 278, 585 F.2d 1049, 1054 (1978). The statute of limitations applicable to this court provides that “[e]very claim of which the United States Claims Court has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” 28 U.S.C. § 2501. The issue in this case is whether the claim accrued when the plaintiff signed the waiver refusing to appeal to the PEB, or whether the claim accrued twenty-four years later when the BCNR dismissed plaintiff’s claim.

The Court of Claims, in Friedman v. United States, 159 Ct.Cl. 1, 13, 310 F.2d 381, 389 (1962), cert. denied, 373 U.S. 932, 83 S.Ct. 1540, 10 L.Ed.2d 691 (1963), established the rule that a cause of action in a disability pay case accrues when final action is taken by the first board competent to decide the matter of entitlement. Where a proper board has acted finally, the running of the statute is not tolled by later consideration by other boards or agencies. Id. at 14-15, 310 F.2d at 390. Where full [544]*544action has been had, or refused, by a board competent to act, later review by a Disability Review Board or the Correction Board does not toll the statute. Id. at 15, 310 F.2d at 390.

A medical survey board, the BMS, reported on the plaintiff’s case and made several findings on November 29, 1962. A medical survey board of the Navy, however, is not a proper and competent tribunal whose decision is adequate to trigger the running of the statute of limitations. Hoppock v. United States, 163 Ct.Cl. 87, 90 (1963). Such a board does not act for the Secretary of the Navy and is not a statutory board. The board merely evaluates a servicemember’s health for a number of purposes. While the board may screen cases for possible referral to the Retiring Board, it has no power to decide that retirement should be allowed or disallowed. Id. at 92-94.

The waiver signed by plaintiff on November 29, 1962, states that he was aware of his right to a full and fair hearing before the PEB. The PEB is a proper and competent tribunal whose decision is adequate to trigger the running of the statute of limitations. Therefore, this court must determine whether plaintiff’s waiver of a hearing constitutes final action by the PEB.

The Court of Claims explained in Friedman that:

The judicial claim for disability retirement pay does not accrue on release from active duty but rather on final action of a board competent to pass upon eligibility for disability retirement (or upon refusal of a request for such a board).

159 Ct.Cl. at 24, 310 F.2d at 395-96 (emphasis in the original). Plaintiff relies on this language in Friedman

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Cite This Page — Counsel Stack

Bluebook (online)
14 Cl. Ct. 542, 1988 U.S. Claims LEXIS 55, 1988 WL 30036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuller-v-united-states-cc-1988.