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No. 14-997C
This Opinion Will Not Be Published in the U.S. Court of Federal Claims Reporter Because It
Does Not Add Significantly lo the Body of Law.
(Filed: May 19,2015)
FILED
EDUARDO LUCERO, lf
* MAY 19 Z0t5
Plaintiff, *
,Hiirr"l.,_u&Iffi
THE UNITED STATES,
l(
Defendant.
*
*
OPINION
Defendant has filed a motion to dismiss plaintiff s complaint under RCFC l2(b)(1) for
lack ofjurisdiction, or altematively, a motion forjudgment on the administrative record. Oral
argument is unnecessary in this case. For the reasons that follow, the court GRANTS
deflendant's motion to dismiss
I.
On November 13, 1961, plaintiff, Eduardo Lucero, enlisted in the United States Army
and entered active duty. On June 5, i965, plaintiff was in an accident in an army vehicle and
suffered injuries. On June 21, 1965, plaintiff was discharged from the Army hospital and
qualified for limited duty with a temporary physical profile. on August 17,1965, the examining
physician found that plaintiff s injuries from the accident were unremarkable and recommended
plaintiff use pain relievers and a bed board for any remaining pain. On November 15, 1965' a
psychiatric evaluation of plaintiff was completed. The examining psychiatrist diagnosed hrm
with a personality disorder and concluded that his condition did not require separation under
medical regulations, but that he could be separated ifhe was determined to be useless to the
service pursuant to Army Regulation 635-209.
On November 16, 1965, the unit commander notified plaintiff that he was being
recommended for discharge under the provisions of Army Regulation 635-209, by reason of
unsuitability. The unit commander informed plaintiff of the basis for the contemplated
separation action and informed him ofhis rights. On November 16, 1965, plaintiff signed a
statement in which he waived his right to a hearing before a board ofofficers, elected not to
submit a statement on his own behalf, and declined representation by military counsel. On
November 17. 1965. the unit commander submitted a recommendation that plaintiff be
discharged.
On December 2, 1965, after plaintiff repeatedly retumed to sick call complaining of back
and shoulder pain, the orthopedic clinic evaluated him and determined that he was malingering.
Plaintiff s commanding officer drafted paperwork dated December 3, 1965, to punish plaintiff
through an Article l5 proceeding for being absent without offrcial leave (AWOL) for one hour.
The paperwork, which was never signed or processed, would have reduced plaintiffs rank and
required him to complete fourteen days of extra duty. Plaintiff alleges that his commanding
officer threatened him with this paperwork and used it to coerce him into signing the waiver of
his rights against a general discharge.
OnDecember 3, 1965, the separation authority approved plaintit? s separation. On
December 15, 1965, plaintiff was issued a general, "under honorable conditions" discharge for
character and behavior disorders. On June 21,1977, the Army Discharge Review Board voted to
upgrade plaintiff s discharge to fully honorable.
Plaintiff suffered from post-traumatic stress disorder and states that he did not remember
the details of his discharge until undergoing psychotherapy at the Denver Veterans Affairs
Hospital in 2004. On August 10,2004, plaintiff submitted an application to the Army Board for
Correction of Military Records (ABCMR) requesting his record be changed to reflect a medical
discharge and medical retirement with full benefits. On May 23,2005, the ABCMR denied his
application. On June 1 , 2006, the ABCMR received a request from plaintiff to reconsider his
application. On January 25,2007, the ABCMR denied his request because it was not received
within one year of the ABCMR's original decision.
On May 28,2014, plaintiff filed a complaint in the United States District Court of
Colorado. Lucero v. Obama,No.14-01491 (D. Colo.May28,2014). On August 12,2014'the
district courtjudge issued an order transferring the case to this court. On October 31,2014'
plaintiff filed his transfer complaint in this court. On January 20,2015, defendant filed a motion
to dismiss plaintiff s claim for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1), or,
in the alternative, a motion for judgment on the administrative record. Briefing on this motion
has been completed. Oral argument was deemed to be unnecessary in this case.
IL
Deciding a motion to dismiss "starts with the complaint, which must be well-pleaded in
that it must state the necessary elements ofthe plaintiff s claim, independent ofany defense that
may be interpos edJ Holley v. Llnited States,124 F.3d 1462, 1465 (Fed. Cir. 1997); see also Bell
Atl. Corp. v. Twombly,550 U.S. 544,554-55 (2007). In parlicular, the plaintiff must establish
that the court has subject matter jurisdiction over his claims. Trusted Integration, Inc. v. United
-2-
States,659 F.3d 1159, 1163 (Fed. Cir. 2011); Reynolds v. Army & Air Force Exch. Serv.,846
F.2d746,748 (Fed. Cir. 1988). With very limited exceptions, the jurisdictional statutes grant
authority to the court only to issue judgments for money against the United States and then, only
when they are grounded in a contract, a money-mandating statute, or the takings clause of the
Fifth Amendment". See 28 U.S.C. $ 149lr; United States v. Testan, 424 U.5.392,397-98 (197 6);
Hurt v. United States,64Fed. Cl. 88, 89, aff'd,134 Fed. Appx. 446 (Fed. Cir.2005).
This court recognizes that plaintiff is acting pro se, and thus it will hold the form of
plaintiffs submissions to a less stringent standard than those drafted by an attomey' See Reed v.
United States,23 Cl. Ct. 517 , 521. (1991) (citing Estelle v. Gamble, 429 U.S. 97 , 106 (1976)); see
also Haines v. Kerner,404 U.S. 519, 520 (1972) (per cuiam). Nevertheless, a pro se litigant's
pleadings must still meet the same jurisdictional requirements as other litigants . McKown v.
UnitedStates,ll4Fed. CI.553,555 (2014);Greenhillv. UnitedStates, Sl Fed. Cl.786,790
(2008) (citing I1e nke v. United stares, 60 F.3d 795,'/99 (Fed. Cir. 1995)).
None ofthe statutes cited in plainti{Ps complaint grant jurisdiction over plaintiff s case.
In particular, this court lacks jurisdiction under the Tucker Act, 28 U S.C' $ 1491. In addition'
the couft lacks jurisdiction over contract claims arising out ofhis enlistment contract with the
U.S. Army. Bell v. (Inited States,366 U.S. 393,401 (1961) ("[C]ommon-law rules governing
private contracts have no place in the area of military pay. A soldier's entitlement to pay is
dependent upon statutory right."); see also United States v. Larionoff,43l U.S. 864,869 (1977);
visconi v. united states,455 Fed. Appx. 986, 988 (Fed. Cir. 2012). The court lacks jurisdiction
over a variety of other claims listed in the margin.r
To the extent plaintiff s claims arise under the Military Pay Act, 37 U S.C. $ 204, or 10
U.S.C. $ 1201, pertaining to military disability pay, those claims are barred by the statute of
limitations. The statute of limitations for claims filed in this court is contained in 28 U.S.C. $
2501, which provides: "Every claim of which the United States Court of Federal Claims has
jurisdiction shall be baned unless the petition thereon is filed within six years after such claim
first accrues." This requirement is jurisdictional, meaning that compliance with it is a condition
ofthe government's waiver of sovereign immunity. John R. Sand & Gravel Co. v. United States,
552 U.S. 130, 133-34 (2008); Martinez v. United State.s, 333 F.3d 1295,1303 (Fed. Cir. 2003)(en
banc), cert. denied, 504 U.S. 1177 (2004); Petro-Hunt, L.L.C. v. United States,90 Fed. Cl. 51, 58
(2009). Under this statute, a claim accrues when "'all events have occurred to fix the
Government's alleged liability,"'and the plaintiff knew or should have known of the existence
of his claim. Martinez,333 F.3dat 1316 (quoting Nager Elec. Co. v. United States,368F.2d
847, 851 (Ct. Cl. 1966)); see also San Carlos Apache Tribe v, United States, 639 F '3d 1346'
1358-59 (Fed. Cir. 2011); Hart v. United Stdtes,910 F.2d 815, 817 (Fed Cir' 1990).
ISection I 33 I of Title 28 of the U.S. Code does not apply to this court. 28 U.S.C. $
1331;Crocker v. United \tqtes,125F.3d1475,14'76 (Fed. Cir. 1997). Plaintiffls invocation of
38 U.S.C. Q 1110 is similarly unavailing, as jurisdiction over benefit determinations made by the
U.S. Department of Veterans Affairs is vested solely in the U.S. Court of Veterans Appeals. 38
U.S.C. $$ 511(a), 7104(a).
-J
For claims under the Military Pay Act, a plaintiff s cause of action accrues at the time of
the plaintiff s discharge. Martinez,333 F.3d at 1313." Mr. Lucero's discharge occurred in 1965,
and cannot be challeneed five decades latet. See Fournier v. United States,2015 WL 412842, at
*2 (Fed. Cl. Feb. 2,2d15).3
IIL
Based on the foregoing, the court concludes that it must GRANT defendant's motion to
dismiss plaintiff s complaint under RCFC 12(bX1). The Clerk shall dismiss the complaint'
IT IS SO ORDERED.
Marian Blank Hom, Judge
for Judge Francis M. Allegra
2 Plaintiff alleges that he did not remember the details of his discharge until undergoing
treatment for posttraumatic stress disorder in 2004, and therefore the statute of limitations was
tolled. 28 U.S.C. $ 2501 ("A petition on the claim ofaperson under legal disability or beyond
the seas at the time the claim accrues may be filed within three years after the disability
ceases."); see also Martinez,333 F.3dat 1319. But, even if this disability tolling applied in
plaintiff s case, which this court does not have to decide, his complaint was still filed after the
statute of limitations had run.
3
The statute of limitations has also run on plaintiff s claim under 10 U.S.C. $ 1201,
which accrued when the ABCMR denied his claim. See Chambers v. United States,4l7 F.3d
l2\8, 1224 (Fed. Cir.), cert. denied, 546 U.S. 1066 (2005).
A