Hart v. United States

17 Cl. Ct. 481, 1989 U.S. Claims LEXIS 119, 1989 WL 68145
CourtUnited States Court of Claims
DecidedJune 23, 1989
DocketNo. 603-88-C
StatusPublished
Cited by4 cases

This text of 17 Cl. Ct. 481 (Hart 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
Hart v. United States, 17 Cl. Ct. 481, 1989 U.S. Claims LEXIS 119, 1989 WL 68145 (cc 1989).

Opinion

OPINION AND ORDER

TURNER, Judge.

Jewell M. Hart, the widow of an Air Force retiree, seeks survivor annuity benefits under the Survivor Benefit Plan (SBP), 10 U.S.C. §§ 1447-1455 (1982).1 Defendant has filed a motion to dismiss the suit as barred by the pertinent statute of limitations, 28 U.S.C. § 2501 (1982). Defendant’s motion to dismiss is granted in part and denied in part.

I

Plaintiff is the widow of Sergeant Gene Cleon Hart, who retired from active duty with the Air Force on October 10, 1976.2 Sergeant Hart died on October 15, 1980. At the time of or after his retirement, Sergeant Hart elected not to participate in the SBP. Plaintiff alleges that contrary to the requirements of 10 U.S.C. § 1448(a)(3)(A),3 defendant failed to notify [482]*482her of her husband’s election out and that defendant did not counsel her as to the election’s possible adverse effect on her future pecuniary welfare as required by AFR 211-24.4

Plaintiff avers that she first became aware of her rights and possible entitlement to benefits as a result of reading a March 1987 news article. Plaintiff filed this suit on October 18, 1988. Plaintiff seeks recovery of “all sums of money which would have been due and payable to her under the [SBP] together with interest thereon” (Complaint at 3).

II

In its motion to dismiss, the government argues that plaintiff’s claim first accrued, at the latest, on the date of her husband’s death in 1980 and is therefore barred by the applicable six-year statute of limitations, 28 U.S.C. § 2501. Defendant contends, further, that plaintiff’s professed ignorance of her legal rights cannot toll the running of the statute. In its Reply, defendant urges that the “continuing claim” doctrine cited by plaintiff cannot be applied to this case since (1) the factual issue here is not sufficiently narrow and (2) plaintiff “has failed to cite to one instance in which the continuing claim doctrine has been applied to a claim for a survivor benefit” (Def. Reply at 6-7).

Plaintiff urges the court to find that this action did not accrue until she “actually became aware of her right to benefits” in 1987 (Plaintiff’s Further Opposition at 3). She asserts that to hold otherwise would permit the government to profit from its failure to comply with the law regarding the giving of notice and counseling. Alternatively, plaintiff urges that hers is a “continuing claim [which] renews at each successive pay period”; hence, she seeks at least annuity benefits “for the six years next preceding the filing of her complaint” as well as future benefits (Plaintiff’s Opposition at 4).

Ill

Title 28 U.S.C. § 2501 (1982) provides: “Every 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.” See also 28 U.S.C. § 2401(a) (“every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues”). A claim “first accrues” when “all the events have occurred which fix the liability of the government and entitle the claimant to institute an action.” Oceanic S.S. Co. v. United States, 165 Ct.Cl. 217, 225 (1964); see Collins v. United States, 14 Cl.Ct. 746, 751, aff’d, 865 F.2d 269 (Fed.Cir.1988); McDonnal v. United States, 9 Cl.Ct. 629, 632 (1986); Steiner v. United States, 9 Cl.Ct. 307, 310 (1986).

With respect to the claim (or claims) involved in this case, three “events” are required to “fix the liability of the government and entitle the claimant to institute an action,” Oceanic S.S. Co., 165 Ct.Cl. at 225: (1) Absence of a valid election by plaintiff’s retired military spouse not to participate in the SBP (a valid election out occurs only if defendant notifies plaintiff of such election), (2) death of plaintiff’s spouse survived by plaintiff and (3) failure of defendant to provide plaintiff with monthly survivor annuity benefit payments. See Barber v. United States, 230 Ct.Cl. 287, 676 F.2d 651 (1982), construing 10 U.S.C. § 1448(a)(3)(A). The Federal Circuit has held that the government’s

failure to pay an automatic annuity under the SBP, absent ... a valid election out [i.e. an election accompanied by [483]*483spousal notice from defendant] gives rise to a claim within the jurisdiction of the Claims Court for money improperly withheld.

Kelly v. United States, 826 F.2d 1049, 1052 (Fed.Cir.1987); see Barber v. United States, 230 Ct.Cl. at 291, 676 F.2d at 654.

The right which plaintiff asserts is entitlement to automatic monthly payments. Plaintiff’s claim is “for money improperly withheld.” Kelly v. United States, 826 F.2d at 1052; Barber v. United States, 230 Ct.Cl. at 291, 676 F.2d at 654. Such a claim cannot “first accrue” until money is “withheld” and money cannot be “withheld” until due and payable. Accordingly, plaintiff’s suit actually consists of a series of separate claims. Each of these separate claims “first accrued” only on the date defendant failed to make a payment then due.5 For these reasons, and for reasons set forth more fully below, it is concluded that plaintiff’s suit fits within the “continuing claim exception”6 to this court’s six-year statute of limitations.

The continuing claim doctrine was fashioned by the Court of Claims and applies to certain claims against the government which allege “failure to perform an ongoing duty prescribed by law.” Mitchell v. United States, 13 Cl.Ct. 474, 486 (1987). The most frequently recognized “continuing claims” have been suits for compensation payable periodically. See, e.g., Cosgriff v. United States, 181 Ct.Cl. 730, 387 F.2d 390 (1967); Miller v. United States, 180 Ct.Cl. 872 (1967); Lerner v. United States, 168 Ct.Cl. 247 (1964). Such a claim can be considered to involve “multiple causes of action, each arising at the time the Government fails to make the payment alleged to be due.” Burich v. United States, 177 Ct.Cl. 139, 143, 366 F.2d 984, 986 (1966), cert. denied, 389 U.S. 885, 88 S.Ct. 152, 19 L.Ed.2d 182 (1967).

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