John Rodgers Burnley v. United States

6 F.3d 788, 1993 U.S. App. LEXIS 38059, 1993 WL 375644

• Court: Court of Appeals for the Federal Circuit
• Decided: September 27, 1993
• Docket: 93-5137
• Status: Published

Opinion

6 F.3d 788
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.

John Rodgers BURNLEY, Plaintiff-Appellant,
v.
The UNITED STATES, Defendant-Appellee.

No. 93-5137.

United States Court of Appeals, Federal Circuit.

Sept. 27, 1993.

Before PLAGER and LOURIE, Circuit Judges, and RONEY, Senior Circuit Judge.*

PER CURIAM.

Plaintiff John Rodgers Burnley appeals an order of the United States Court of Federal Claims dismissing as barred by the six-year statute of limitations his complaint for damages arising out of an alleged improper discharge from the United States Marine Corps. We affirm.

Burnley was honorably discharged from the United States Marine Corps prior to completing recruit training in 1972. He filed this suit in the United States Court of Federal Claims in 1993, alleging that "[t]he core of this suit is a military pay case as a result of being wrongfully and unlawfully discharged from the United States Marine Corps on February 28, 1972."

Obviously, unless something tolls it, the six-year statute of limitations applicable to "[e]very claim of which the United States Court of Federal Claims has jurisdiction" bars consideration by that court of this complaint. 28 U.S.C. Sec. 2501. This is a claim within the jurisdiction of the Court of Federal Claims that accrued when Burnley was discharged, twenty-one years prior to suit. Japanese War Notes Claimants Ass'n Inc. v. United States, 373 F.2d 356, 358 (Ct.Cl.1967), cert. denied, 389 U.S. 971 (1967).

Contrary to Burnley's argument, this Circuit has consistently held that resort to a corrections board and the pursuit of other administrative remedies does not suspend or toll the statute of limitations. Hurlick v. Lehman, 782 F.2d 984, 987 (Fed.Cir.1986).

In any event, it appears that Burnley did not even pursue any administrative claim based on the allegedly wrongful discharge until well beyond six years after his discharge. For all the foregoing reasons, we affirm.

* Hon. Paul H. Roney, of the U.S. Court of Appeals for the Eleventh Circuit, sitting by designation