Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:08-cv-00433-EGB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ROLAND S. ROLLINS, SR., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) No. 08-433C ) (Judge Bruggink) ) ) )

DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS Pursuant to Rule 7.2(c) of the Rules of the Court of Federal Claims ("RCFC"), the United States replies to plaintiff's response to defendant's motion to dismiss for lack of subject-matter jurisdiction. As we explained in our motion, because plaintiff, Mr. Rollins's complaint was filed more than six years after his claims accrued, the Court does not possess jurisdiction to entertain this action. Moreover, Mr. Rollins cannot establish a plaintiff's complaint

basis to toll the statute. In response to our motion, Mr. Rollins asserts that this Court possesses jurisdiction to entertain his claim for disability retirement or severance pay. He states that his

"claim for disability retirement benefits or severance pay accrued when the [Army Board for the Correction of Military Records] decided that he was fit for duty in 2008." 7.1 Pl. Res. at

He explains that, under "10 U.S.C. § 1201, [his claims] did

"Pl. Res. " refers to the referenced page of Mr. Rollins's response to our motion to dismiss. "App.

1

"

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not arise until the ABCMR finally denied his application.

That

event transpired on 29 January 2008 and [his] complaint was filed within six years of that date." Rollins's arguments below. I. Mr. Rollins's Complaint Must Be Dismissed For Lack Of Subject Matter Jurisdiction Because His Claims Are Barred By The Statute Of Limitations2 Title 10, United States Code, Section 2501 provides that "every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues." As we explained in our opening brief, a cause of action for "claims of entitlement to disability retirement pay generally does not accrue until the appropriate military board either finally denies such a claim or refuses to hear it." Chambers Pl. Res. at 12. We address Mr.

v. United States, 417 F.3d 1218, 1224 (Fed. Cir. 2005)(citing Real v. United States, 906 F.2d 1557, 1560 (Fed. Cir. 1990), and Friedman v. United States, 159 Ct. Cl. 1, 310 F.2d 381, 389 (1962)). "The decision by the first statutorily authorized board

that hears or refuses to hear the claim invokes the statute of limitations." See Real, 906 F.2d at 1560. When the correction

board is the first board to consider a disability claim, the

refers to the appendix attached to our motion to dismiss. In the event the Court denies our motion to dismiss, we request the opportunity to file a motion for judgment upon the administrative record, pursuant to RCFC 52.1. 2
2

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correction board's decision triggers the accrual of the cause of action. (1998). Mr. Rollins does not contest that on December 12, 1984, he submitted his Application for Correction of Military Records to the ABCMR. He requested that his administrative discharge be By requesting a medical Id.; Aubre v. United States, 40 Fed. Cl. 371, 376 n.6

changed to a medical discharge.

discharge, he sought either a physical disability separation pay (severance pay) or a disability retirement. If the Secretary of

the Army determines that a soldier is medically unfit, he may retire the soldier or medically separate him with severance pay. See 10 U.S.C. §§ 1201, 1203. In its decision dated January 7, 1987, the ABCMR considered and decided whether Mr. Rollins's administrative discharge was appropriate, and whether he was entitled to a medical discharge, i.e., either a physical disability separation or a disability retirement. After considering all of the available medical

records, the ABCMR determined that "[Mr. Rollins] did not have any medically unfitting disability which would have required physical disability processing." App. 5. Further, "[s]ince

[his] medical condition was not medically unfitting for retention at the time in accordance with AR 40-501, there was no basis for medical retirement or separation."
3

Id. (Emphasis added).3

Although Mr. Rollins did not appear before a Medical Evaluation Board or a Physical Evaluation Board before his 3

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Thus, as we explained in our opening brief, Mr. Rollins's disability retirement claim accrued when the ABCMR issued its first decision denying him his requested relief, on January 7, 1987, and expired six years later on January 7, 1993. 906 F.2d at 1560 (The decision by the first statutorily authorized board which hears or refuses to hear the claim is the triggering event for purposes of the statute of limitations). Because he filed his complaint seeking disability retirement more than 21 years after the ABCMR issued its decision, his claims are barred by the statute of limitations, and should therefore be dismissed. Mr. Rollins asserts that his claim for disability retirement4 accrued on January 29, 2008, when the ABCMR denied his request for reconsideration of its 1987 decision. at 12. Pl. Res. See Real,

He states that because the ABCMR reviewed his allegedly

new and material evidence, the 2008 "decision had the effect of erasing the [ABCMR's] prior decision." at 12, 13. In Aubre, this Court considered whether the plaintiff's claim for disability retirement accrued upon the date of the first, or the second correction board decision. Plaintiff in Id.; see also Pl. Res.

separation from service, he underwent a separation medical examination on June 2, 1982, and was found to be qualified for administrative separation. App. 14-15. Mr. Rollins does not contest our assertion that his claim for wrongful discharge is outside the statute of limitations. 4
4

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Aubre was discharged from the United States Navy in 1968, and applied to the Board for Correction of Naval Records ("BCNR") in 1982, seeking disability retirement. The BCNR denied his request

on June 15, 1982, and he submitted a second application on December 29, 1987, which was denied on March 22, 1988. Cl. 371, 374. 40 Fed.

Plaintiff in Aubre thereafter submitted another

application, which was also denied. The correction board in Aubre, as here, treated the second application for disability retirement as a request for reconsideration of the earlier board decision. at 8, 10. Id. at 375; App.

This Court in Aubre held that because plaintiff sought

reconsideration by the BCNR six years (and, again, 14 years) after its initial decision, the requests for reconsideration were not timely, and thus did not operate to toll the statute of limitations for purposes of plaintiff's claim in this Court. at 376 (citing Dayley v. United States, 169 Ct. Cl. 305, 308 (1965)).5 The Court explained that "[t]he Court of Claims has Id.

ruled in a disability case that the `mere presentation of new evidence to a reviewing board does not constitute such a `reopening' [so as to deprive an earlier decision of finality] Mr. Rollins cites to Chambers for the proposition that his request for reconsideration tolled the accrual date of his disability retirement claim. The plaintiff in Chambers, however, timely submitted a request for reconsideration of the correction board's decision. Indeed, his initial application for disability retirement was denied on March 16, 2000, and his request for reconsideration was denied on September 27, 2000. 417 F.3d at 1222. 5
5

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where the board does not accept that new evidence as sufficient to overturn the adverse decision of the prior board.'" Id. at

377 (quoting Robinson v. United States, 163 Ct. Cl. 235, 237 (1963)). Further, the "consideration of allegedly new and

material evidence is insufficient to create a new period of limitations" when the request for reconsideration is untimely. Id.; Bruno v. United States, 214 Ct. Cl. 383, 386-87, 556 F.2d 1104, 1106 (1977). Otherwise, the Court noted,

A member of the armed forces would need only file a request for reconsideration with the appropriate board to resuscitate a claim as much as five years or more after the board's decision to begin the running of a new limitations period. Such a result is utterly inconsistent with Congress' limited waiver of sovereign immunity enabling aggrieved individuals to seek redress in the Court of Federal Claims. 40 Fed. Cl. at 378. The Court thus determined that plaintiff's

complaint, filed on May 21, 1997, was outside the six-year statute of limitations because it was filed more than six years from the accrual date of plaintiff's claim, June 15, 1982. Here, Mr. Rollins's request for reconsideration was submitted to the ABCMR more than 19 years after its 1987 decision.6 App. 8. As in Aubre, the request for reconsideration

was untimely, and did not serve to toll the statute of

On page 5 of our motion to dismiss, we erroneously state that Mr. Rollins submitted his request for reconsideration of the 1987 ABCMR decision "[m]ore than nine years later . . . ." In fact, Mr. Rollins submitted his request for reconsideration of the ABCMR's decision more than 19 years later. 6

6

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limitations for Mr. Rollins's claims, which began on the date the initial ABCMR decision was issued on 1987. Mr. Rollins argues that he "had no claim for disability retirement benefits or severance pay until his application to reopen [his] discharge was denied," thus implying that he could not have applied to the ABCMR for disability retirement until after 1987, when it denied his claim for wrongful discharge. Pl. Res.

at 10 (citing Friedman v. United States, 310 F.2d 381, 389 (1962)). In making this argument, Mr. Rollins ignores the fact

that by requesting a medical discharge in his first application to the ABCMR, dated December 12, 1984, he by necessity raised the issue of whether he was entitled to disability retirement or severance pay. App. 7. Indeed, the ABCMR reviewed the record

and held that he was not entitled to medical or disability retirement, or severance pay. App. 1; 2-6. Thus, Mr. Rollins's

argument that he could not have sought disability retirement from the ABCMR before 1987 should be rejected. Finally, Mr. Rollins asserts that Congress' intent in granting the ABCMR the power to re-open a claim under 10 U.S.C. § 1551(b) would be "absurd and irrational" without judicial oversight. Pl. Res. at 13-14. To the contrary, Mr. Rollins's

had the opportunity to seek timely judicial oversight of the first ABCMR decision, which, like the second, denied his claim for disability retirement. Congress has not expressed an intent

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for a former service member to continue to seek the same relief indefinitely. Indeed, the six year statute of limitations

imposed by Congress explicitly prohibits judicial review of untimely-filed complaints. rejected. CONCLUSION For the foregoing reasons, the Government respectfully requests that the Court grant its motion to dismiss the complaint. Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director s/ Donald E. Kinner DONALD E. KINNER Assistant Director s/ Lauren S. Moore OF COUNSEL: MAJOR JENNIFER BOTTOMS United States Army Litigation Division Military Personnel Branch 901 N. Stuart Street Suite 400 Arlington, VA 22203-1837 LAUREN S. MOORE Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tele: (202) 616-0333 Fax: (202) 514-8640 Attorneys for Defendant SEPTEMBER 8, 2008 8 Thus, Mr. Rollins's argument must be

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CERTIFICATE OF ELECTRONIC FILING I hereby certify that on this 8th day of September 2008, a copy of the foregoing "DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS" was filed electronically. I

understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system, and that the parties may access this filing through the Court's system. s/Lauren S. Moore