Johnson v. United States

Opinion

()RE$E${AI" llr tW @nitr! 5tsttg tourt of fe[rrsl @[sims No. l5-959C (Filed October 27, 2016)

FILED * :f * *,* * * * * * * * {. * * * * * * * *,} * * * * * * * *,* * * *. ** 1. ccT 2 i 20t6 CAREY L. JOHNSON, U.S. COURTOF FEDERAL CLAIMS Plaintiff, *

v.

THE UNITED STATES,

Defendant.

* {. ** {. * :r + * :t *********** :} *( **** j<,k ***** :} :i +

OPINION & ORDER

In this action, Plaintiff Carey LeVonne Johnson, acling pro se, seeks to overtum a decision by the Board of Corrections for Naval Records C'BCNR') denying plaintiff s petition for correction of military records, medical retirement, and back pay. Defendant United States ("the Govemment") moves to dismiss Plaintiff s complaint on grounds that Plaintiff failed to bring his claim within the permissible time-frame, or in the altemative, seeks judgment on the administrative record.l For the reasons set forth below, the Government's motion to dismiss is hereby GRANTED.

I. Background

A. Military Service and Militar.y Board Reviews

Plaintiff Carey L. Johnson is a veteran of the United States Marine Corps, who served from June 1995 to December 1997. ARVoI II at 1 $ 12. On September 12, 1997, the United States Navy convened a Medical Evaluation Board (MEB) and diagnosed Plaintiff with scoliosis and "nonradicular back pain ofmechanical nature." 1d. aIlT-19. The MEB referred Plaintiff s case to the Physical Examination Board (PEB). Id. at 17, 20. Thereafter, a flight surgeon performed a medical evaluation and concurred with the MEB's diagnoses ofscoliosis and chronic back pain. Id. at34-35. The physician also

I The two-volume administrative record ("AR") filed under seal on March 22.2016 contains Plaintiffs BCNR file ("AR Vol I") and Plaintiffs personnel file ("AR Vol II").

?El,q l,aDE 8000 1893 lbal, indicated that Plaintiffs psychiatric clinical evaluation was "normal." Id. at34. On November 10,1997, an informal PEB found Plaintiff unfit for duty with a 10% disability rating, assigned for Plaintiffs back pain but not scoliosis. ARVollatl2$$8, 11. The PEB recommended separation with severance pay. Id. at 12 $ 9. Plaintiff accepted the frndings and waived all rights to a formal hearing. Id. at 14-15. On December 23, 1997, Plaintiff was honorably discharged with severance pay. AR Vol II at 1. In the final two months ofservice, Plaintiff received three nonjudicial punishments Q.,IPJs) and was reduced two pay grades. AR Vol I at 4.

On February 14,2014, sixteen years after his discharge, Plaintiff ftled an application with the Board of Corrections for Naval Records (BCNR) alleging an undiagnosed bipolar disorder while in service. AR Vol1 at 66-73 . In support, Plaintiff presented a 2011 medical opinion stating that Plaintiff suffered from bipolar disorder while in service and an April 2012 Department of Veterans Affairs (VA) Mental Disorders Disability Benefits Questionnaire. 1d The BCNR denied Plaintiff s petition on July 6, 2015, reasoning that the evidence was insufficient to conclude that the bipolar disorder existed fourteen years earlier. Id. at54-56. OnJuly3l,20l5,Plaintiff petitioned the BCNR to reconsider. Id. at 42-53. The BCNR solicited an advisory opinion from the Director ofthe Secretary of the Navy Council ofReview Boards (CORB), which was rendered on November I 8, 201 5. Id. at 9-22,23. The CORB agreed with the BCNR's denial, finding insufficient evidence to support Plaintiffs assertion. 1d ar9-22. On December 23,2015, Plaintiff flled a response, arguing that the BCNR should disregard the CORB opinion. Id. at 4-6. The BCNR reviewed Plaintills case again on January 7,2016, but similarly found the evidence insufficient and rejected Plaintiffs request to disregard the CORB opinion. Id. at 1-3. The BCNR reasoned that fourteen years was too distant in time to accurately diagnose bipolar disorder and Plaintiff s successful complelion of undergraduate study in 2004 suggested that he was not suffering from bipolar disorder when he was discharged in 1997. Id. at 1-2.

B. Present Action

On August 31,2015, Plaintiff, acting pro se, filed his complaint in the Court of Federal Claims. Plaintiffseeks to reopen and challenge his 1997 honorable discharge from the U.S. Marine Corps based on a l0% disability for back pain, in order to obtain full disability retirement based on service-connected bipolar disorder, back pay, and correction of his records. Specifically, the Plaintiffasks the Court to: (l) conect his discharge to retlect medical retirement based on bipolar disorder with a 100% disability rating; (2) award full disability retirement benefits retroactive to discharge; (3) remove the offenses and punishments from his record; (4) reinstate him to the rank ofLance Corporal (E-3); and (5) award back pay associated with reinstatement. See Compl. 1.

On May 12,2016, the Govemment filed a Motion to Dismiss or, Altematively, For Judgment on the Administrative Record ("Def. Mot."). The Govemment moves to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(l) of the Rules of the United States Court ofFederal Claims ("RCFC"), arguing the six-year statute of limitations set forth in 28 U.S.C. $ 2501, has expired. Alternatively, the Govemment argues thatit is entitled to judgment on the administrative record "because the board's denial of Mr. Johnson's claims . . . is supported by substantial evidence." Def. Mot. at 2.

On September 2, 2016, Plaintiff filed a Motion to Supplement the Record, and a Motion to Expand Time. In his Motion to Supplement the Record, Plaintiff seeks to introduce: (1) a Board of Veterans Appeals' decision dated March 9,2016, finding an in service connection for his bipolar disorder; and (2) a Department of Veterans Affairs notice dated August, 17,2016, reflecting Plaintiffs entitlement to a 100% disability rating for his bipolar disorder, effective September 8, 2016. In his Motion to Expand Time, Plaintiff requests the Court to reconsider an earlier ruling and to issue a timely order regarding his Motion to Supplement the Record. On September 19, 2016, the Govemment filed responses, opposing the Motion to Supplement the Record on grounds of relevance, and opposing the Motion to Expand Time.

II. Standard of Review

Under the Tucker Act, 28 U.S.C. $ 1491, the Court of Federal Claims has jurisdiction to hear military pay claims. The Tucker Act, 28 U.S.C. $ i491, "confers jurisdiction upon the Court ofFederal Claims over the specified categories ofactions brought against the United States. . . ." Fisherv. UnitedStates,402F.3d1167,1l72 (Fed. Cir.2005)(en banc) (cilati.ons omitted). Further, every claim within thejurisdiction of the United States Court ofFederal Claims is subject to the statute of limitations set fo(h in 28 U.S.C. $ 2501, which is "an express limitation on the Tucker Act's waiver of sovereign immunity." Hartv. United States,9l0F.2d 815,818-19 (Fed. Cir. 1990). Here, Plaintiff relies on the Military Disability Retirement Statute, l0 U.S.C. $ 1201, and the Military Pay Act, 37 U.S.C. $ 204(a).

Pursuant to 28 U.S.C. $ 2501, "[e]very claim of which the United States Court of Federal Claims hasjurisdiction shall be baned unless the petition thereon is filed within six years after such claim first accrues." Thus, a cause of action for military disability retirement pay claims accrues when "the first statutorily authorized board . . . hears or refuses to hear the claim." Van Allen v. United States,66 Fed. Cl. 294,297 (2005) (quoting Real v. United States,906 F.2d 1557, 1560 (Fed. Cir. 1990)). Typically, this would be a retiring board who sees the plaintiff prior to discharge. See id. Additionally, the United States Court ofAppeals for the Federal Circuit expressly rejected the notion that "a servicemember's claim accrues when he leams ofhis disabling condition, whether before or after discharge." Chambers v. United Stqtes, 417 F.3d 1218, 1226 (Fed. Cir. 2005) (discussing the scope ofthe holding in Real v. United States,906 F.2d 1557 (Fed. Cir. 1990)). Further, a cause ofaction for back pay accrues "at the time ofthe plaintiffs discharge." Martinez v. United States,333 F.3d 1295,1303 (Fed. Cir. 2003). Finally, the Tucker Act, "[t]o provide an entire remedy and to compiete the relief afforded by the judgment," grants the court discretionary authority to "issue orders directing restoration to office or position, placement in appropriate duty or retirement status, and correction of applicable records." 28 U.S.C. $ 1a91(a)(2). However, this limited authority may only be exercised "as an incident ofand collateral to" a monetary judgment. See id The Court recognizes that Plaintiffis proceedingpro se and cannot be "expected to frame issues with the precision of a common law pleading." Roche v. United States PostalServ.,828F.2d 1555, 1558(Fed.Cir. 1987). Thus, when a complaint is filed pro se, the Court holds the pleadings ofsuch plaintifls to "less stringent standards than formal pleadings drafted by lawyers" and liberally consfues those pleadings. Haines v. Kerner, 404 U.S. 519, 520 (1972); see also Erickson v. Pardus,551 U.S. 89,94 (2007). The Court, however, cannot extend this leniency to relieve plaintifTs of their jurisdictional burden ofestablishing subject matter jurisdiction by a preponderance ofthe evidence. Knighr v. United Srates,65 Fed. App'x 286,289 (Fed. Cir. 2003); Kelley v. Sec'y, United Stctes Dep't of Labor,8l2F.2d 1378, 1380(Fed.Cir. 1987). In ruling on a motion to dismiss for lack of subject matter jurisdiction, the Court must accept as true all undisputed factual allegations and construe all reasonable inferences in favor of the plaintiff; however, ifjurisdiction is found to be lacking, this Court must dismiss the action. RCFC 12(h)(3); Scheuer v. Rhodes,4l6 U.S. 232,236 (197 4), abrogated on other grounds by Harlow v. Fitzgerald,4sT U.S.800,814-15 (1982).

The United States Supreme Court noted that the Court of Federal Claims limitation statute has long been interpreted as a "more absolute" limitations period. See John R, Sand & Gravel Co. v. United States, 552 U.S. I 30, I 34 (2008). These types of limitation statutes "seek not so much to protect a defendant's case-specific interest in timeliness as to achieve a broader system-related goal, such as facilitating the administration of claims, limiting the scope of govemmental waiver of sovereign immunity, or promoting judicial efficiency." Id. at 133 (citations omitted). As such, the six-year statute of limitations is not susceptible to equitable tolling. 1d at 133-34.

III. Discussion

Plaintiffargues that, based on the 201 1 medical opinion linding him 100% disabled from bipolar disorder, he is entitled to full disability retirement benefits, removal of off'ences and punishments from his military record, reinstatement to the rank ofLance Corporal, back pay associated with reinstatement, and correction ofhis discharge paperwork to reflect full disability. Given the nature of these claims, this Court will first address Plaintiff s military disability retirement benefits claim and back pay claim.

Regarding Plaintiff s military disability retirement benefits claim, this cause of action accrued when he met with the Physical Examination Board in 1997. This was the first board authorized to hear Plaintiff s claim. Thus, the statute of limitations for this claim began running after this examination and expired six years later in 2003. Similarly, Plaintiff's back pay claim accrued when he was discharged in 1997. After discharge, the statute of limitations for the Plaintiffto bring this claim began running and expired six years later in 2003. Accordingly, the running of the statute of limitations has taken these claims outside the Court's jurisdiction and they must be dismissed.

With respect to Plaintiff s remaining claims regarding removal of offenses and punishments lrom his record, reinstatement of rank, and correction of discharge paperwork, the Court does not have authority to provide relief. The Court may only provide this type ofrelief"as an incident ofand collateral to any [monetary] judgment." 28 U.S.C. $ 1491(aX2). Here, Plaintiff s monetary relief claims are time-baned. That being the case, the Court has no authority to provide the requested non-monetary relief because this type of relief may only be granted in addition to a monetary judgment.

Finally, with respect to Plaintiff s Motion to Expand Time and Motion to Supplement the Record, these motion are now moot in light of the holdings today. Although the Court is sympathetic to Plaintiffs bi-polar disorder, the Court is precluded from providing relief after the applicable statute of limitations has run. The Federal Circuit has rejected the argument that a claim for military disability retirement benefits accrues when "a servicemember's . . . leams of his disabling condition, whether before or after discharge." Chambers v. United States, 417 F .3d 1218, 1226 (Fed. Cir. 2005). The Court need not address the Government's altemative motion for Judsment on the Administrative Record in light of this order.

IV. Conclusion

For the reasons set forth above, the Govemment's motion to dismiss is hereby GRANTED. The Clerk is directed to enter judgment accordingly.

Senior Judge