NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-5103
SALLIE B. HOLLOWAY,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
DECIDED: May 9, 2005
__________________________
Before SCHALL, Circuit Judge, ARCHER, and PLAGER, Senior Circuit Judges.
SCHALL, Circuit Judge.
DECISION
Sallie B. Holloway appeals from the final decision of the United States Court of
Federal Claims that dismissed her complaint for lack of jurisdiction on the ground that it
was not filed within the six-year limitations period of 28 U.S.C. § 2501. Holloway v.
United States, 60 Fed. Cl. 254 (2004) (“Final Decision”). We affirm.
DISCUSSION
I.
The pertinent facts are not in dispute. During the relevant period of time, Ms.
Holloway was a United States Naval Reserve Officer. She served on active duty as a
Reserve Canvasser Recruiter (“CANREC”) until she was involuntarily discharged from
active duty on July 1, 1997. At that time, she had accumulated just over fifteen years of
active-duty service. Five months prior to her discharge, Ms. Holloway requested early
retirement under the Temporary Early Retirement Authority (“TERA”) program, § 4403,
Pub. L. No. 102-484, 106 Stat. 2315, 2702 (1992), as amended by Pub. L. No. 104-106,
§ 1504(c)(3), 110 Stat. 514 (1996). Under the TERA program, Reserve officers with the
necessary time in active-duty service have the option of early retirement. On March 24,
1997, the Navy denied Ms. Holloway’s request for early retirement on the ground that as
a CANREC with less than eighteen years of active-duty service, she did not qualify for
TERA.
Ms. Holloway applied to the Board for Correction of Naval Records (“BCNR”) for
review of the Navy’s decision. On October 26, 1999, the BCNR denied her request for
correction, finding that “the evidence submitted was insufficient to establish the
existence of probable material error or injustice.” Final Decision, 60 Fed. Cl. at 258. On
March 21, 2000, Ms. Holloway filed a complaint in the United States District Court for
the Northern District of California seeking correction of her records as well as back pay
and allowances. The district court dismissed the complaint for lack of jurisdiction,
Holloway v. Danzig, No. C 00-0981 SBA (N. D. Cal. Oct. 19, 2000), noting that Ms.
Holloway had an adequate remedy in the Court of Federal Claims. The Ninth Circuit
04-5103 2
affirmed the dismissal on January 31, 2001. Holloway v. England, 50 Fed. Appx. 836
(9th Cir. 2002) (table).
On December 3, 2002, Ms. Holloway filed a complaint in the Court of Federal
Claims seeking money damages based upon her allegedly unlawful discharge from
active duty on June 1, 1997. At the same time, she moved to suspend proceedings
based upon the fact that she had filed a request for en banc review with the Ninth
Circuit that was still pending. On December 13, 2002, the Court of Federal Claims
judge to whom the case was assigned issued an order in which he notified the parties
that under 28 U.S.C. § 1500, the court was “not permitted to consider law suits that
have been filed in other courts.” Ms. Holloway thereupon filed a motion, which the court
granted, to voluntarily dismiss her complaint without prejudice.
On August 4, 2003, Ms. Holloway filed a second complaint in the Court of
Federal Claims. In it, she asserted again the claim presented in the complaint she had
filed on December 3, 2002. The government moved to dismiss the complaint for lack of
jurisdiction on the ground that it was untimely. The Court of Federal Claims granted the
government’s motion. Final Decision, 60 Fed. Cl. 254. The court determined that the
cause of action for Ms. Holloway’s claim accrued on July 1, 1997, the date she was
discharged from active-duty service in the Navy. Ms. Holloway’s complaint was
therefore time-barred, the court ruled, because it was not filed in the Court of Federal
Claims until August 4, 2003, more than six years after accrual of the statute of
limitations. See 28 U.S.C. § 2501. The Court of Federal Claims rejected Ms.
Holloway’s argument that her complaint “merged” with the voluntarily dismissed
December 3, 2002 complaint. The court explained that under 28 U.S.C. § 1500, the
04-5103 3
Court of Federal Claims did not have jurisdiction over the December 3, 2002 complaint,
and, thus, the August 4, 2003 complaint could not “relate back” to the earlier complaint.
II.
We review the Court of Federal Claims’ dismissal of Ms. Holloway’s complaint for
lack of subject matter jurisdiction de novo. W. Co. of N. Am. v. United States, 323 F.3d
1024, 1029 (Fed. Cir. 2003).
We see no error in the decision of the Court of Federal Claims. It is undisputed
that Ms. Holloway’s claim accrued on July 1, 1997 when she was discharged from
active duty. See Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en
banc) (“A cause of action cognizable in a Tucker Act suit accrues as soon as all events
have occurred that are necessary to enable the plaintiff to bring suit, i.e., when ‘all
events have occurred to fix the Government’s alleged liability, entitling the claimant to
demand payment and sue here for his money.’” (citations omitted)). Moreover, the
statute of limitations was not tolled when Ms. Holloway pursued administrative remedies
before the BCNR. See id. at 1312 (“[I]t is well-settled that the statute of limitations for
Tucker Act claims is not tolled by the claimant’s exercise of his rights to seek permissive
administrative review of his claim.”).
On appeal, Ms. Holloway argues that 28 U.S.C. § 2501 should be equitably tolled
because she actively pursued her claim for relief during the statute of limitations
period—first, by filing suit in district court and second, by filing the December 3, 2002
complaint in the Court of Federal Claims.
The government argues, and we agree, that because Ms. Holloway raises her
equitable tolling argument for the first time on appeal, the argument has been waived.
04-5103 4
See Sage Prods., Inc. v. Devon Indus., Inc., 126 F.3d 1420, 1426 (Fed. Cir. 1997). As
noted by the Court of Federal Claims, Ms. Holloway’s counsel (different from her
counsel on appeal) rejected application of the doctrine of equitable tolling, referring to it
as “totally misplaced.” Final Decision, 60 Fed. Cl. at 260 n.12.
In any event, there is no merit to Ms. Holloway’s equitable tolling argument. The
Supreme Court has held that the same rebuttable presumption of equitable tolling
applicable to suits against private defendants also applies to suits against the United
States. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96 (1990). While equitable
tolling is available at least in some actions against the government, in United States v.
Brockamp, 519 U.S. 347, 350 (1997), the Court rejected application of the doctrine
where the statute at issue, much like section 2501 here, contains explicit exceptions to
its basic time limits, which exceptions do not include equitable tolling.1 We have
declined to decide whether equitable tolling applies with respect to 28 U.S.C. § 2501.
Martinez, 333 F.3d at 1318. However, assuming equitable tolling were available under
section 2501, Ms. Holloway has not made a sufficient showing to invoke the doctrine in
this case. Irwin makes clear that equitable tolling against the federal government is
available only when there is a compelling justification for delay, such as “where the
claimant has actively pursued his judicial remedies by filing a defective pleading during
the statutory period, or where the complainant has been induced or tricked by his
adversary's misconduct into allowing the filing deadline to pass.” 498 U.S. at 96. Ms.
1
Section 2501 provides that a “petition on the claim of a person under legal
disability or beyond the seas at the time the claim accrues may be filed within three
years after the disability ceases.” 28 U.S.C. § 2501.
04-5103 5
Holloway’s arguments do not meet this standard.2
For the foregoing reasons, the final decision of the Board is affirmed.
Each party shall bear its own costs.
2
We have considered Ms. Holloway’s other arguments and have found
them to be without merit.
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