Young v. U.S.

• Decision Date: 25 June 2008
• Docket Number: No. 2008-5007.,2008-5007.
• Citation: 529 F.3d 1380
• Parties: Rickie J. YOUNG, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

529 F.3d 1380

Rickie J. YOUNG, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 2008-5007.

United States Court of Appeals, Federal Circuit.

June 25, 2008.

Rickie J. Young, of Stockbridge, GA, pro se.

Tara J. Kilfoyle, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for defendant-appellee. With her on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Bryant G. Snee, Assistant Director.

Before NEWMAN, LOURIE, and BRYSON, Circuit Judges.

NEWMAN, Circuit Judge.

Mr. Rickie J. Young appeals the decision of the United States Court of Federal Claims dismissing as time-barred his claim for military pay.¹ He seeks pay from the date of an asserted wrongful military discharge to the date when he would have achieved longevity retirement, and technical reinstatement and entitlement to retirement benefits. The court held that since more than six years had elapsed from the date of his honorable discharge on April 25, 1998, until the complaint was filed on October 4, 2006, his claim was barred by the Tucker Act's statute of limitations. We affirm the decision of the Court of Federal Claims.

DISCUSSION

Mr. Young held the rank of Sergeant in the United States Army. He was honorably discharged on April 25, 1998, having completed fourteen years, one month, and four days of active service. The discharge, which was involuntary, occurred because Sergeant Young had reached the "retention control point" beyond which Army regulations bar further enlistment at the same rank (E-5). He had not been promoted to the next rank (E-6). During his Army service, Mr. Young was hospitalized in 1992 with abdominal problems, with a diagnosis of "upper G.I. bleed secondary to severe gastritis." He was treated for these problems on several occasions between 1992 and his discharge in 1998. He passed the Army Physical Fitness Test following his 1992 hospitalization, failed the test in 1994, and passed it on at least two subsequent occasions. His 1994 test failure occurred during a course at a noncommissioned officers academy and prevented him from completing the course, which Mr. Young asserts prevented his promotion to a higher rank.

Four years after his discharge, on November 22, 2002 Mr. Young filed a disability claim with the Department of Veterans Affairs (VA), claiming that his continuing gastrointestinal problems were service connected. The VA ultimately granted service connection for various conditions including gastritis, esophagitis, gastro-esophageal reflux disease and hiatal hernia, and assigned a thirty percent disability rating effective from the date of his claim.

In November 2003, based on this VA finding of service connection, Mr. Young applied to the Army Board for Correction of Military Records (ABCMR) seeking to change his 1998 honorable discharge to a disability separation or medical retirement. The ABCMR denied the application, finding that his evidence did not show probable error or injustice justifying correction of his military records, and also that he had not shown just excuse for his failure to file this application within the three-year statutory period for ABCMR claims. On request for reconsideration, Mr. Young conceded that he was never unfit to perform his military duties and thus was not eligible for disability separation, but argued that the Army erred by not referring him to a Medical Evaluation Board for a proper medical profile after his hospitalization for gastrointestinal problems in 1992. The ABCMR denied reconsideration on May 6, 2004, stating that the relevant Army regulation requires referral to a Medical Evaluation Board when the soldier is believed to be unable to perform his duties, while Mr. Young agreed that he was never unable to perform his duties.

On October 4, 2006 Mr. Young filed a complaint in the Court of Federal Claims asserting jurisdiction under the Tucker Act, 28 U.S.C. § 1491, and the Military Pay Act, 37 U.S.C. § 204. Mr. Young stated that the Army's failure to refer him to a Medical Evaluation Board for proper medical "profiling" during his military service caused a cascade of unwarranted consequences culminating in his wrongful discharge, and that he would have served the twenty years required for longevity retirement if he had been allowed to achieve a higher rank and remain in the Army. Based on Mr. Young's assertions, the Court of Federal Claims construed his complaint as a monetary request under the Tucker Act, seeking back pay for the period from his discharge until the date at which he would have become eligible for longevity retirement.

The United States moved to dismiss the complaint as time-barred under 28 U.S.C. § 2501.² In Martinez v. United States, 333 F.3d 1295 (Fed.Cir.2003) (en banc) this court held that a claimant's participation in a permissive administrative proceeding, such as the ABCMR correction proceeding that Mr. Young pursued, does not toll the six-year period during which a Tucker Act action must be brought. Id. at 1303-05. The Martinez court held that a cause of action for monetary losses resulting from a wrongful discharge accrues from the date of discharge, id. at 1310; the court declined to recognize a separate Tucker Act action measured from the date of the military correction board's decision. Id. at 1314. Applying Martinez, the Court of Federal Claims ruled that Mr. Young's claim in that court accrued upon his discharge on April 25, 1998. Because this accrual date preceded the filing of Mr. Young's complaint by more than six years, the court dismissed the complaint as time-barred.

The Court of Federal Claims further stated that if Mr. Young were seeking disability retirement pay, rather than pay based on wrongful discharge, then the complaint would not be time-barred because disability retirement claims generally do not accrue until the appropriate military board either finally denies the claim or refuses to hear it, citing Chambers v. United States, 417 F.3d 1218, 1223 (Fed. Cir.2005). However, the court found that Mr. Young had clarified that he was not seeking disability retirement pay, for eligibility for disability retirement requires that the claimant was unfit to perform his military duties. Mr. Young agrees in this appeal that he does not seek disability retirement pay.

On request for reconsideration, Mr. Young argued in the Court of Federal Claims that wrongdoing by the Army in not referring him for a proper medical profile warranted equitable tolling of the statute of limitations. The court ruled that Mr. Young had not established a basis for tolling, even if equitable tolling could apply to 28 U.S.C. § 2501, because he did not show that any relevant facts were concealed or that he was in any way misled by the government into delaying more than six years before filing this complaint. After the Court of Federal Claims issued its decisions, the Supreme Court decided John R. Sand & Gravel Co. v. United States, ___ U.S. ___, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008), holding that the statute of limitations applicable to Tucker Act claims, 28 U.S.C. § 2501, is jurisdictional and not susceptible to equitable tolling. Id. at 753-57. The John R. Sand & Gravel decision resolved a question that had been left open in the en banc Martinez decision. See Martinez, 333 F.3d at 1318 ("We decline to decide whether equitable tolling is generally available under ...