Free Memorandum - District Court of Federal Claims - federal

Case 1:06-cv-00507-LJB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

EUGENE DAVIS Plaintiff v. UNITED STATES OF AMERICA Defendant.

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No. 06-507 Judge Bush

MEMORANDUM BRIEF OF FACT AND LAW

Comes the Plaintiff Eugene Davis [Davis] and submits to the Court his response brief in support of his position that the Court should deny the Government's motion to dismiss. FACTS The Plaintiff filed his case against the Government in the Federal District Court in Memphis on February 9, 2006. Davis was separated from service and released to the Reserve Control Group on March 18, 1993 after having completed more than 15 years of service. (Complaint, p. 9, paragraph 3.5) On July 8, 1993, the United States Army announced that company and field grade officers were entitled to early retirement if they qualified, which Davis did. But Davis was never notified. (Id. paragraphs 3.8-3.9) When Davis learned of the benefit being afforded by the Army, he began an administrative appeal process in 1999 which lasted until June 24, 2005. ((Id. paragraph 3.10) LAW The Government argues that Davis' case is about a separation issue. It is not. Davis is not contending that he was improperly separated. Davis is contending that he was never notified

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Case 1:06-cv-00507-LJB

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of his right to apply for retirement in futuro until 1999. At that point he began an attempt to have his records corrected. This case is about correcting his records in order to allow him to obtain retirement benefits at the age of 60. Davis is not suing for money damages, such as back pay, but is seeking an order from this Honorable Court, correcting his record. Normally suits filed under the Tucker Act, must be filed within the six year statute of limitations Title 28 U.S.C.A. § 1491. However, Davis' action is governed by Title 10 U.S.C.A. § 1552 which allows for correction of Board actions. See Richey v. United States, 322, F.3d 1317, 1325 (Fed. Cir. 2003) Accordingly, Davis' claim did not accrue until the Board's final denial of his request. Crown Coat Front Co. v. United States, 386 U.S. 503, 511, 87 S.Ct. 1177, 11 L.Ed.2d 256 (1967) The final denial of his request was in June of 2005. Thus, his complaint was filed well within the applicable statute of limitations. See Japan Whaling Association v. A.M. Cetacean Society, 478 U.S. 221, 230-31, n. 4, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) CONCLUSION Based upon the foregoing facts, Davis respectfully requests that this Honorable Court deny the Government's motion. Respectfully submitted,

/s/ Phillip L. Davidson Phillip L. Davidson, #6466 2400 Crestmoor Road Suite 107 Nashville, Tennessee 37215 (615) 386-7115

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CERTIFICATE OF SERVICE I certify that an exact copy of the foregoing document was served electronically to the following: Peter D. Keisler Assistant Attorney General David M. Cohen Director /s/ Donald E. Kinner Assistant Director /s/ Richard P. Schroeder Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tel: (202) 305-7788 Attorneys for the Defendant Of Counsel: Major Jerrett Dunlap United States Army Litigation Division Military Personnel Branch 901 N. Stuart St., Suite 400 Arlington, VA 22203-1837 Tel: (703) 696-1628 Fax: (703) 696-8126 on this the ____ day of ____________, 2007.

/s/ Phillip L. Davidson Phillip L. Davidson

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