CRONIN v. The UNITED States
| Decision Date | 31 March 2011 |
| Docket Number | No. 06-633,06-633 |
| Parties | JUDITH LOUISE CRONIN, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
OPINION TEXT STARTS HERE
Military pay; statute of limitations; Temporary Disability Retirement List; Servicemembers' Civil Relief Act; tolling; 50 U.S.C. app. § 526; period of military service
Jeffery M. Chiow, Washington, D.C., for plaintiff.
Armando A. Rodriguez-Feo, United States Department of Justice, Civil Division, Washington, D.C., with whom were Donald E. Kinner, Assistant director, Jeanne E. Davidson, Director, and Tony West, Assistant Attorney General, for defendant.
Pending is plaintiff's motion for partial judgment on the administrative record pursuant to Rule 52.1 of the Rules of the United States Court of Federal Claims ("RCFC"). Plaintiff's motion is limited to the issue of whether the tolling provision of the Servicemembers' Civil Relief Act ("SCRA") brings plaintiff's claims within this court's six-year statute of limitations. Also pending is defendant's motion to dismiss pursuant to RCFC 12(b)(1) based on the alleged untimeliness of plaintiff's suit. The motions are fully briefed and we heard oral argument on February 28, 2011. For the reasons explained below, we grant plaintiff's motion and hold that the SCRA's tolling provision applies to Ms. Cronin's claims.
Judith L. Cronin ("Ms. Cronin") entered active duty in the United States Navy in 1977. She was scheduled to be promoted to the rank of Commander on October 1, 1994. Her promotion was delayed, however, due to a physician's report stating she was not fit for duty. Shortly thereafter, a medical board recommended she be placed on limited duty. Her case was referred to a Physical Evaluation Board ("PEB"), which, in late 1995, found her to be 60 percent disabled due to heel injuries and bipolar disorder.
Ms. Cronin continued work on active duty, though in a limited status, until May 31, 1996, when she was promoted to Commander and simultaneously placed on the Temporary Disability Retirement List ("TDRL"). On the same date, she was issued DD Form 214, "Certificate of Release or Discharge from Active Service." On October 1, 2000, Ms. Cronin was removed from the TDRL and permanently retired at a 30 percent disability rating. In 2003, she petitioned the Board of Corrections of Naval Records ("BCNR") for a review of her disability rating. The BCNR denied her petition on August 13, 2004.
On September 7, 2006—more than a decade after being placed on the TDRL but not quite six years after being permanently retired—Ms. Cronin filed suit here pro se, alleging that the delay in her promotion to Commander was improper and that she was therefore entitled to back pay during that period. She also alleged that the Navy improperly calculated her disability rating and that, when she was placed on the TDRL, she should have received a rating of 100 percent based on ten conditions or injuries.
In an unpublished order dated May 16, 2008, we granted the government's motion to dismiss her case as untimely, granted partial judgment on the administrative record, and remanded a single issue to the BCNR. Specifically, we held that Ms. Cronin's first claim, the delay in promotion, had accrued on October 1, 1994, the date she claims her promotion should have occurred. Because her suit was not filed within six years of that date, we dismissed that claim as barred by our statute of limitations. As to her second claim, we held that, because nine of the ten alleged disabilities were the subject of the 1995 PEB, those claims were also time barred. Although the tenth alleged disability, post traumatic stress disorder ("PTSD"), was not considered by that PEB and thus was not time barred, we held that the BCNR did not err when it found there was no evidence of PTSD at the time Ms. Cronin was placed on the TDRL. We thus granted judgment on the administrative record in favor of the government on this aspect of her claim.
We did, however, remand to the BCNR for the limited purpose of recalculating Ms. Cronin's annuity. The BCNR credited her with additional time served and accordingly increased her monthly retirement pay and issued her a cash credit for the amount wrongly withheld during the six-year period prior to her suit. When informed of this corrective action, we issued an order to show cause why the case should not be dismissed. Ms. Cronin did not respond to the order, and we dismissed the case with prejudice.
Ms. Cronin appealed to the Court of Appeals for the Federal Circuit. That court sua sponte raised the question of whether the tolling provision of the SCRA, 50 U.S.C. app. § 526(a) (2006), applied. The Federal Circuit subsequently remanded the case to this court with instructions to determine if the tolling provision applied to the time Ms. Cronin spent on the TDRL. That court also noted evidence in the record, apparently overlooked by the BCNR, of PTSD and its potential exacerbation by other conditions. Accordingly, it instructed that, if on remand we find the other alleged disabilities are not time barred, we should consider their possible effect on the PTSD.
We have jurisdiction under the Tucker Act, which grants jurisdiction over certain claims seeking money damages from the United States. 28 U.S.C. § 1491(a)(1) (2006). We may also order the correction of military records "as an incident of and collateral to" an award of monetary damages. Id. § 1491(a)(2); see Voge v. United States, 844 F.2d 776, 781 (Fed. Cir. 1988).
All claims brought under the Tucker Act are subject to a six-year statute of limitations. 28 U.S.C. § 2501 (2006). Accordingly, for this court to entertain Ms. Cronin's claim, her suit must have been filed within six years after the accrual of the causes of action. As a general matter, a claim accrues "when all the events have occurred that fix the alleged liability of the Government and entitle the claimant to institute an action." Ingrum v. United States, 560 F.3d 1311, 1314 (Fed. Cir. 2009) (citing Alliance of Descendants of Tex. Land Grants v. United States, 37 F.3d 1478, 1481 (Fed. Cir. 1994)).
We previously held, and the parties do not dispute, that Ms. Cronin's two causes of action accrued in 1994 and 1995, respectively. See Martinez v. United States, 333 F.3d 1295, 1314 (Fed. Cir. 2003) (); Chisholm v. United States, 82 Fed. Cl. 185, 198 (2008) (); Sanders v. United States, 32 Fed. Cl. 573, 575 (1995) (citations omitted) ("Claims alleging an unlawful failure to promote accrue on the date the application for promotion is denied."). Because she did not file suit here until 2006, Ms. Cronin's claims would thus be untimely but for the operation of some mechanism to toll the statute of limitations. Ms. Cronin argues that the tolling provision of the SCRA applies to the time she spent on the TDRL and her claims therefore did not accrue until her permanent retirement in 2000 and were thus timely filed in 2006.
The SCRA is the present incarnation of the Soldiers' and Sailors' Civil Relief Act of 1940 ("SSCRA")2 and is designed to strengthen national security by allowing servicemembers "to devote their entire energy to the defense needs of the Nation [and] to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service."3 50 U.S.C. app. § 502. The SCRA's historical antecedents can be seen in state laws during the War of 1812 and in the federal laws promulgated during the Civil War and World Wars I and II. See H.R. Rep. 108-81 at *38-39. One of the SCRA's most significant sections is its tolling provision, which states, in pertinent part:
The period of a servicemember's military service may not be included in computing any period limited by law, regulation, or order for the bringing of any action or proceeding in a court . . . or other agency of a State (or political subdivision of a State) or the United States by or against the servicemember or the servicemember's heirs, executors, administrators, or assigns.
50 U.S.C. app. § 526. In essence, the Act bars any time spent in military service from being included when calculating a statute of limitation for or against that servicemember. When this provision applies, it is unconditional, i.e. there is no requirement that the military service actually prevented or handicapped the servicemember's ability to bring suit. Bickford v. United States, 656 F.2d 636, 639 (Ct. Cl. 1981); see also Mason v. Texaco, Inc., 862 F.2d 242, 245 (10th Cir. 1988) ().
By its terms, the Act applies to a servicemember's period of military service, defined as "the period beginning on the date on which a servicemember enters military service and ending on the date on which the servicemember is released from military service or dies while in military service." 50 U.S.C. app. § 511(3). Thus, the critical question in triggering the tolling provision is what constitutes military service. Bickford, 656 F.2d at 639 (citing Ricard v. Burch, 529 F.2d 214 (4th Cir. 1975)) ("[O]nce that circumstance is shown, the period of limitation is automatically tolled for the duration of service."). The Act defines military service to include both "active duty" and "any period during which a servicemember is absent from duty on account of sickness, wounds, leave, or other lawful cause." 50 U.S.C. app. § 511(2). The Act makes no mention of the TDRL.
As a general matter, and subject to certain conditions, servicemembers who incur a physical...
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