Corrected:June 26, 2008
United States Court of Appeals for the Federal Circuit
2008-5007
RICKIE J. YOUNG,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Rickie J. Young, of Stockbridge, Georgia, 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.
Appealed from: United States Court of Federal Claims
Senior Judge James F. Merow
United States Court of Appeals for the Federal Circuit
2008-5007
RICKIE J. YOUNG,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims in 06-CV-690, Senior Judge James
F. Merow.
__________________________
DECIDED: June 25, 2008
__________________________
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
1
Young v. United States, No. 06-690C, 2007 WL 5171116 (Fed. Cl. July 31,
2007); Young v. United States, No. 06-690C (Fed. Cl. Aug. 30, 2007) (denying
reconsideration).
2008-5007 2
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.
2008-5007 3
§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
2
28 U.S.C. §2501 provides: “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.”
2008-5007 4
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, 128 S. Ct. 750 (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 section 2501, because even if we held that it is, Mr. Martinez has not made
a sufficient factual showing to invoke equitable tolling in this case . . . .”).
On this appeal, Mr. Young argues that the Martinez case is factually distinguishable
and that his claim should be deemed timely because his claim was “inherently unknowable”
until the VA first determined that his medical conditions were service-connected, with an
effective date of November 22, 2002; thus, he argues that his claim did not accrue until
November 22, 2002. In a supplemental brief filed after the decision of John R. Sand &
Gravel, Mr. Young argues that the Supreme Court’s conclusion that 28 U.S.C. §2501 is
“jurisdictional” does not bar this court from ruling that equitable tolling applies in his case, or
that his claim accrued only upon the VA’s determination of his disability status. Mr. Young
argues that he did not know “disability” was at issue until the VA granted his disability claim,
and that his reasonable lack of knowledge excuses any delay in commencing legal action
to obtain the pay he would have received had he been allowed to remain in military service.
To the extent that Mr. Young is seeking equitable tolling, such relief is foreclosed by
John R. Sand & Gravel, wherein the Court held that the Tucker Act's statute of limitations is
2008-5007 5
in the “more absolute” category that cannot be waived or extended by equitable
considerations. 128 S. Ct. at 753-54.
This court in Martinez also discussed the “accrual suspension rule,” which is “distinct
from the question whether equitable tolling is available under that statute, [28 U.S.C.
§2501] although the term ‘tolling’ is sometimes used in describing the rule.” Martinez, 333
F.3d at 1319. According to the accrual suspension rule, “the accrual of a claim against the
United States is suspended, for purposes of 28 U.S.C. §2501, until the claimant knew or
should have known that the claim existed.” Id. To achieve such suspension the plaintiff
“must either show that the defendant has concealed its acts with the result that plaintiff was
unaware of their existence or it must show that its injury was ‘inherently unknowable’ at the
accrual date.” Id. (quoting Welcker v. United States, 752 F.2d 1577, 1580 (Fed. Cir.
1985)). Mr. Young argues that at the time of his discharge in 1998 it was “inherently
unknowable” that his military experience would render him disabled by 2002. He seeks to
distinguish Martinez, where this court found the accrual suspension rule inapplicable
because the ABCMR action sought to correct the form of Mr. Martinez’s discharge, a
situation different from that of Mr. Young.
The Court of Federal Claims, declining to suspend accrual, observed that Mr. Young
knew all of the relevant facts at the time of his discharge. It is a plaintiff’s knowledge of the
facts of the claim that determines the accrual date. See United States v. Kubrick, 444 U.S.
111, 122 (1979) (“We are unconvinced that for statute of limitations purposes a plaintiff’s
ignorance of his legal rights and his ignorance of the fact of his injury or its cause should
receive identical treatment.”); Catawba Indian Tribe v. United States, 982 F.2d 1564, 1572
(Fed. Cir. 1993) (declining to apply a later accrual date where “all the relevant facts were
known. It was the meaning of the law that was misunderstood.”). Mr. Young knew that he
2008-5007 6
had been treated for abdominal problems repeatedly during his Army service, that he had
not been referred to a Medical Evaluation Board, and that failure of promotion led directly to
his discharge. There is no suggestion that the Army concealed any fact that might be
relevant to his claim that he should not have been discharged. The Court of Federal
Claims did not err in finding that neither the fact of Mr. Young’s medical condition, nor the
Army regulations he states required his referral to a Medical Evaluation Board, was
“inherently unknowable.” That he later applied for and received VA disability benefits does
not establish that he had inadequate knowledge concerning the reason for his discharge.
The principle confirmed in Martinez does not permit suspension of the accrual date of his
claim. Precedent supports the ruling of the Court of Federal Claims that this claim accrued
as of the date of his discharge, and is now time-barred.
We have considered all of the petitioner’s remaining arguments and find that they do
not change the result, which is simply that Mr. Young waited too long to bring this Tucker
Act claim.
No costs.
AFFIRMED
2008-5007 7