Toney v. United States

43 Fed. Cl. 28, 1999 U.S. Claims LEXIS 27, 1999 WL 64761
CourtUnited States Court of Federal Claims
DecidedJanuary 29, 1999
DocketNo. 97-677C
StatusPublished
Cited by2 cases

This text of 43 Fed. Cl. 28 (Toney v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Toney v. United States, 43 Fed. Cl. 28, 1999 U.S. Claims LEXIS 27, 1999 WL 64761 (uscfc 1999).

Opinion

ORDER

ANDEWELT, Judge.

I.

In this military pay action, plaintiff, Ron-dell Toney, a retired Master Gunnery Sergeant in the United States Marine Corps (the Corps), seeks damages resulting from the Corps’ automatically enrolling plaintiff, upon his retirement on November 9, 1979, in the United States Armed Forces Survivor Benefit Plan (SBP). The SBP provides qualified servicemembers an opportunity to secure an annuity for their designated beneficiaries in exchange for a deduction in their retired pay. As a result of his automatic enrollment in the SBP, plaintiff received 'a 6 1/2 percent reduction in his retired pay.

Upon his retirement, plaintiff did not submit a certificate electing not to participate in the SBP. Thus, pursuant to the provisions of the SBP, the Corps automatically enrolled plaintiff in the SBP. See 10 U.S.C. §§ 1447-1455.1 Plaintiff contends that this automatic enrollment was unlawful because the Corps did not first obtain plaintiffs informed consent. Plaintiff seeks reimbursement of the deductions taken from his retirement pay under the SBP; $30,000 for the loss of ability to obtain “reasonable” life insurance; and $50,000 for loss of time, inconvenience, humiliation, interference with peace of mind, and violation of his constitutional right to freedom of speech.

In 1996, plaintiff filed a district court action against the Corps and the Department of Defense in which he alleged wrongful enrollment in the SBP. The United States District Court for the Western District of North [30]*30Carolina dismissed that action for lack of subject matter jurisdiction. Thereafter, on October 6, 1997, plaintiff filed the instant complaint.

II.

This action is before the court on defendant’s motion to dismiss the complaint for lack of jurisdiction or, in the alternative, on the ground that plaintiffs claim is barred by the six-year statute of limitations contained in 28 U.S.C. § 2501. As to jurisdiction, plaintiffs claim includes a demand for reimbursement of SBP deductions taken from plaintiffs periodic retirement payments during the six years prior to the filing of the instant complaint. To the extent plaintiffs claim is for a refund of money illegally exacted by the government during the statutory period, this court would possess jurisdiction over such a claim pursuant to the Tucker Act, 28 U.S.C. § 1491(a)(1). See Aerolineas Argentinas v. United States, 77 F.3d 1564, 1573 (Fed.Cir.1996) (“The Tucker Act provides jurisdiction to recover an illegal exaction by government officials when the exaction is based on an asserted statutory power.”). In any event, however, even if plaintiffs claim could be so classified, the claim would be barred by the six-year statute of limitations.

III.

Pursuant to 28 U.S.C. § 2501, a claim over which this court has jurisdiction is barred unless the petition was “filed within six years after such claim first accrues.” “A claim against the United States first accrues on the date when all the events have occurred which fix the liability of the Government and entitle the claimant to institute an action.” Kinsey v. United States, 852 F.2d 556, 557 (Fed.Cir.1988) (quoting Oceanic Steamship Co. v. United States, 165 Ct.Cl. 217, 225, 1964 WL 8621 (1964)). Defendant contends that the alleged event that would have fixed the liability of the government and entitled plaintiff to institute an action occurred in 1979 when plaintiff retired from the Corps and the Corps enrolled plaintiff in the SBP. Because plaintiff did not bring suit within six years thereafter, defendant contends that plaintiffs claim is barred by the statute of limitations. Plaintiffs response relies upon a legal doctrine known as the continuing claim doctrine. Plaintiff argues that pursuant to this doctrine, although deductions taken from plaintiffs retirement pay more than six years, before the institution of this action are barred by the statute of limitations, those deductions taken within six years of the filing are not.

In Brown Park Estates-Fairfield Development Co. v. United States, 127 F.3d 1449 (Fed.Cir.1997), the Court of Appeals for the Federal Circuit analyzed the pertinent case precedent and defined the metes and bounds of the continuing claim doctrine. In each decision analyzed in Brown, the plaintiffs had relied upon a statute or regulation to support their entitlement to periodic payments allegedly due from the government. In each case, the first instance of the government not paying the periodic payments allegedly required under the applicable statute or regulation occurred more than six years before the institution of the suit. Thus, in each case, the court confronted the issue under 28 U.S.C. § 2501 of when the claim to periodic payments allegedly due during the six years prior to filing suit first “accrued.” If the claim “accrued” prior to the six-year prefiling limitations period at the time when the government first failed to make a payment required under the applicable statute or regulation, then the claim would be time barred. But if each failure to make a periodic payment constituted an independent claim which “accrued” at the time the respective payment was not made, then those claims for periodic payments allegedly due within the six years prior to filing suit would constitute timely filed claims.2 In the precedent discussed in Brown, those claims that the courts placed in the latter category and over which the courts assumed jurisdiction were labeled “continuing claims.” Those claims that were time barred and over which the courts did not [31]*31assume jurisdiction were deemed outside the breadth of the continuing claim doctrine.

After reviewing the pertinent precedent, the Brown court concluded that the critical focus in distinguishing claims that are deemed to fall within the scope of the continuing claim doctrine from those that are not is the particular terms of the statute or regulation upon which the particular plaintiff based the claim. The continuing claim doctrine applied only in those situations where the government’s failure to make a particular payment during the six years prior to bringing suit constituted an independent violation of the terms of the statute or regulation. The court summarized the various precedent in which the continuing claim doctrine was held to apply as follows:

The plaintiffs claim could be broken down into a series of independent and distinct wrongs or events, each such wrong or event having its own associated damages. Each wrong constituted an alleged violation of a statute or regulation that accrued when that particular wrong occurred, independent of the accrual of other wrongs. For example, in

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Related

Davidson v. United States
66 Fed. Cl. 206 (Federal Claims, 2005)
Toney v. United States
43 Fed. Cl. 389 (Federal Claims, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
43 Fed. Cl. 28, 1999 U.S. Claims LEXIS 27, 1999 WL 64761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toney-v-united-states-uscfc-1999.