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
04-5117
GERHARD FRANZ JOSEF ULLMANN,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
___________________________
DECIDED: December 30, 2004
___________________________
Before SCHALL, DYK, and PROST, Circuit Judges.
PER CURIAM.
Plaintiff-Appellant, Gerhard Franz Josef Ullmann (“Ullmann”), appeals from the
decision of the United States Court of Federal Claims dismissing his complaint for lack
of subject matter jurisdiction. Ullmann v. United States, No. 03-CV-1171 (Fed. Cl. June
8, 2004). We affirm.
BACKGROUND
I
Ullmann began active duty service in the Army on February 21, 1992. He
complained of lightheadedness, dizziness, nausea, vertigo, and similar maladies soon
thereafter and continued these complaints until his eventual separation from the Army.
In response to these complaints he received numerous medical examinations and
extensive medical testing. The tests revealed no abnormalities. However, one doctor
allegedly informed Ullmann in May of 1992 that he would receive a medical discharge
due to the aftereffects of an extended fever and infection.
During much of his service with the Army, Ullmann also demonstrated difficulty
following orders and Army regulations. These difficulties with Army life led to his twice
being reduced in rank. In February of 1994, Ullmann was notified that he was to be
separated from the Army for unsatisfactory performance. On March 8, 1994, he
requested a copy of medical records regarding his treatment for vertigo.
On March 17, 1994, Ullmann was honorably discharged from the Army for
unsatisfactory performance and not by reason of physical disability, despite having
allegedly “inform[ed] his commander that he was to receive a disability discharge at the
time of discharge from [the] Active Duty Army.” (Appellant’s Resp. to Def. Informal Br.
at 2.) He was then transferred to the Army Reserve wherefrom he was discharged on
March 9, 1999. Ullmann also enlisted in the Ohio National Guard on September 20,
1996, and served until March 1, 2000, upon which date he was discharged for acts of
misconduct. Ullmann made requests for his medical records with the Department of
Veterans Affairs (the “VA”) on December 3, 2001, and February 13, 2002. Ullmann
claims that the VA’s response was incomplete.
II
Ullmann filed suit in the Court of Federal Claims on May 9, 2003. First, he
alleged a violation of 10 U.S.C. § 1142, which requires preseparation counseling for
members of the armed forces and transmittal of medical records to the VA. Second, he
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alleged that the Army failed to maintain adequate personnel records as required by
Army Regulation 680-52, paragraph 1-4(a). According to Ullmann, these violations
resulted in, inter alia, (1) loss of GI Bill benefits, (2) a deprivation of a medical discharge
from active duty status, (3) loss of Veterans benefits from 1994 onward, and (4) the
administration of unnecessary vaccinations. Ullmann sought $960,000 in damages as
compensation for these alleged violations.
The Court of Federal Claims dismissed all of Ullmann’s claims for lack of subject
matter jurisdiction. His overall claim for missing or withheld medical records was
dismissed for lack of subject matter jurisdiction because no statute or regulation
provides money damages for such acts. The claim for GI Bill benefits was dismissed
because Ullmann alleged “that his ineligibility for education funding [was] due to his
joining the Guard, not the lack of his medical records. Therefore, by plaintiff’s own
admission, the Army’s alleged failure to release his medical records did not cause the
denial of education funding.” (Def. App. at 5.) His claim for the administration of
unnecessary vaccinations was dismissed because it constituted an alleged tort, which is
a cause of action not within the Court of Federal Claims’ jurisdiction under the Tucker
Act.
The Court of Federal Claims dismissed Ullmann’s claim for military disability
benefits as barred by the 6-year statute of limitations of 28 U.S.C. § 2501. The Court of
Federal Claims found that Ullmann was aware that the Army did not consider his
condition disabling by at least March 11, 1994, because “his discharge orders
specifically so advised him.” (Id. at 8.) In spite of this knowledge, Ullmann was found
not to have requested his medical records until December 3, 2001. Thus, the court
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found, Ullmann did not even start investigating his claim until after the statute of
limitations ran, and he did not show any evidence that the Army frustrated his efforts to
learn about the basis for his claim during the limitations period.
We have jurisdiction over Ullmann’s appeal pursuant to 28 U.S.C. 1295(a)(3).
DISCUSSION
Ullmann appeals the Court of Federal Claims’ dismissal of his claims for want of
subject matter jurisdiction. Specifically, he appeals the dismissal of his claims for (1)
failure to maintain and produce medical records, (2) the administration of unnecessary
vaccinations, (3) GI Bill benefits and, (4) military disability benefits.
I
We conclude that the Court of Federal Claims properly dismissed Ulmann’s
claims. The Tucker Act, 28 U.S.C. § 1491 (2000), grants subject matter jurisdiction to
the Court of Federal Claims. This jurisdictional grant is limited to monetary claims
based on contracts with the United States and money-mandating constitutional
provisions, statutes, regulations, or executive orders. United States v. Mitchell, 463
U.S. 206, 212-18 (1983).
Ullmann does not allege a violation of contractual or constitutional rights, or a
violation of any executive order. Ullmann’s claim regarding the Army’s alleged failure to
maintain and produce medical records is premised upon a statute, 10 U.S.C. § 1142
(2000), and a regulation, Army Reg. 680-52, ¶ 1-4(a), neither of which mandates money
damages. Therefore, the claim was properly dismissed for lack of subject matter
jurisdiction.
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Ullmann’s tort claim alleging unnecessary vaccinations was also properly
dismissed because it does not fall within the Court of Federal Claims’ jurisdictional
grant, which does not extend to tort claims. Furthermore, Ullmann’s claim for GI Bill
benefits was properly dismissed. Appeals from a denial of GI Bill benefits must be
made to the Board of Veterans’ Appeals, 38 U.S.C. § 7104(a) (2000) (incorporating by
reference 38 U.S.C. § 511(a)), and then to the Court of Appeals for Veterans Claims, 38
U.S.C. § 7252(a) (2000), and thereafter to this court, 38 U.S.C. § 7292 (2000). The
Court of Federal Claims has no jurisdiction over such claims. 38 U.S.C. §§ 511(a),
7104(a), 7252(a), 7292 (2000).
II
Ullmann’s claim for military disability benefits is barred by 28 U.S.C. § 2501.
That statute provides for a six-year statute of limitations on every claim over which the
Court of Federal Claims has jurisdiction. 28 U.S.C. § 2501 (2000). In Real v. United
States, 906 F.2d 1557, 1560 (Fed. Cir. 1990), we held “that claims of entitlement to
disability retirement pay do not [normally] accrue until the appropriate [retiring, physical
evaluation, or correction] board either finally denies such a claim or refuses to hear it.”
However, when a veteran is aware of his disability at the time of discharge, does not
request or receive a board hearing, and has knowledge that the disability is permanent,
service-connected, and not the result of his own misconduct, the statute of limitations
begins to run at the time of discharge. Id. at 1563. That is the case here.
Ullmann alleges that during a visit to a military doctor in 1992 he was informed
that he would be medically discharged from the military due to poor health resulting
from an extended high fever while serving in Texas. He alleges that he was then further
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informed by that doctor that brain damage had occurred and that an MRI would be
necessary to determine the extent of brain damage resulting from the fever and thus the
appropriate disability benefits. Ullmann was discharged from the Army on March 17,
1994, for nonmedical reasons. At this time, taking his allegations at face value, Ullmann
was well aware of the seriousness of his medical condition and that the disability was
permanent, service-connected, and not the result of his own misconduct. Ullmann also
did not request a board hearing of any type; he alleges only that before his discharge he
told his commander that his discharge should reflect his disability. Ullmann filed suit in
the Court of Federal Claims on May 9, 2003, well in excess of the six-year statute of
limitations. Therefore, Ullmann’s claim for military disability benefits was property
dismissed.
Ullmann appears to argue on appeal that the statute of limitations should be
tolled because he was actively attempting to pursue a claim between the time of his
discharge and the end of the limitations period on March 17, 2000. However, the
evidence of record shows actions taken only after the limitations period had already run.
Ullmann’s assertions that a claim was filed with the Department of Veterans Affairs in
1994 and not acted upon, even if true, would not work to toll the limitations period for
filing a claim for military disability benefits in the Court of Federal Claims. Our decision
does not, of course, preclude the petitioner from continuing to pursue a claim for
benefits before the VA.
We have considered Ullmann’s other arguments and found them to be without
merit.
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CONCLUSION
The order of the Court of Federal Claims is affirmed.
COSTS
No costs.
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