NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DENNIS LEE MAXBERRY,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-2271
______________________
Appeal from the United States Court of Federal
Claims in No. 1:16-cv-01256-CFL, Judge Charles F.
Lettow.
______________________
Decided: January 12, 2018
______________________
DENNIS LEE MAXBERRY, Chippewa Falls, WI, pro se.
JESSICA R. TOPLIN, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represent-
ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
DEBORAH A. BYNUM.
______________________
Before LOURIE, REYNA, and CHEN, Circuit Judges.
2 MAXBERRY v. UNITED STATES
PER CURIAM.
Dennis Lee Maxberry (“Maxberry”) appeals from the
decision of the United States Court of Federal Claims (the
“Claims Court”) dismissing his complaint for lack of
jurisdiction and failure to state a claim upon which relief
could be granted. Maxberry v. United States, No. 16-
1256C, 2017 WL 1854809, at *2 (Fed. Cl. May 8, 2017).
Because the Claims Court did not err in its dismissal, we
affirm.
BACKGROUND
Maxberry served in the United States Army from Sep-
tember 29, 1976 to June 23, 1978. He was discharged
prior to the end of his term of service because of sub-
standard performance and failed counseling and rehabili-
tation efforts. On June 15, 1978, Maxberry received
notice of his separation from the Army under the Expedi-
tious Discharge Program, which he signed indicating his
voluntary consent to the discharge. On June 23, 1978,
Maxberry was separated from the Army with a General
Discharge under honorable conditions.
Following his discharge, Maxberry filed several re-
quests to change his discharge status. In 1980, he filed
three applications to the Army Discharge Review Board
(“ADRB”) requesting to have his general discharge up-
graded to an honorable discharge; these were denied
because the ADRB determined that he was properly
discharged. In 1985, Maxberry filed requests with the
ADRB and the Army Board for Correction of Military
Records (“ABCMR”) again requesting the same upgrade to
his discharge status claiming that the circumstances
leading up to his discharge were “fictit[iou]s.” J.A. 150.
These were all denied as untimely. See 10 U.S.C. §
1552(b) (stating that requests for military record correc-
tions must be made within three years after discovering
the “error or injustice”). In 1987, Maxberry filed another
application to the ABCMR requesting reconsideration of
MAXBERRY v. UNITED STATES 3
his discharge status and alleging for the first time that it
be changed to a medical disability discharge for injuries
suffered during his service. On August 19, 1988, the
ABCMR declined to hear his request because it was
untimely, leaving its earlier decision undisturbed.
Twenty years later, Maxberry resumed his attempts
to change his discharge status. In 2008, he filed two
applications to the ABCMR, which were both denied as
untimely. Undeterred, Maxberry filed five more applica-
tions to the ADRB and ABCMR from 2010 to 2012 again
requesting a change in his discharge status. All five
applications were denied. Between 2014 and 2015, Max-
berry filed another five applications to the ABCMR re-
questing, inter alia, to upgrade his general discharge to
an honorable discharge, and to update his records to
reflect a medical separation or retirement. This time, the
ABCMR elected to waive the statute of limitations and
considered his requests. On May 17, 2016, the ABCMR
denied all his requested relief. The ABCMR specifically
noted that it had denied all of Maxberry’s prior requests
and that Maxberry had provided no evidence to support
his claims for relief. Maxberry filed an application for
reconsideration, which the ABCMR denied for lack of new
evidence.
On October 3, 2016, Maxberry filed a complaint in the
Claims Court alleging (1) that he was entitled to an
honorable discharge, disability pay, retirement pay, back
pay, and punitive damages (the “service-related claims”);
(2) constitutional violations under the Fourth, Sixth,
Eighth, Thirteenth, and Fifteenth Amendments, and the
Due Process clauses of the Fifth and Fourteenth Amend-
ments (the “constitutional claims”); and (3) statutory
violations under the Civil Rights Act (42 U.S.C. § 1983),
Speedy Trial Act (18 U.S.C. § 3161), Defense of Marriage
Act (1 U.S.C. § 7), and the Uniform Code of Military
Justice (10 U.S.C. § 815) (the “statutory claims”). The
government filed a motion to dismiss for lack of jurisdic-
4 MAXBERRY v. UNITED STATES
tion and failure to state a claim upon which relief can be
granted, or in the alternative, judgment on the adminis-
trative record in its favor.
The Claims Court granted the motion determining
that Maxberry’s service-related claims were time-barred
because he failed to assert his claims within six years of
accrual; and his constitutional and statutory claims were
not money-mandating or did not otherwise confer jurisdic-
tion in the Claims Court. See Maxberry, 2017 WL
1854809, at *5–8. The court also held that Maxberry’s
complaint failed to state a claim upon which relief could
be granted because he needed to establish that his dis-
charge was involuntary, which Maxberry was unable to
do. Id. at *8.
Maxberry timely appealed to this court. We have ju-
risdiction pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review de novo dismissals by the Claims Court for
lack of jurisdiction. Frazer v. United States, 288 F.3d
1347, 1351 (Fed. Cir. 2002). Additionally, the scope of our
review is limited and arguments not raised before the
court are waived on appeal. See San Carlos Apache Tribe
v. United States, 639 F.3d 1346, 1354–55 (Fed. Cir. 2011).
We first address Maxberry’s service-related claims.
Maxberry appears to argue that the Servicemembers Civil
Relief Act (“SCRA”) and the doctrine of equitable tolling
justify his late filing, citing Miller v. Runyon, 77 F.3d 189,
191 (7th Cir. 1996) (arguing mental illness as a disability
that tolls the statute of limitations). The government
responds that the Claims Court correctly dismissed the
service-related claims as time-barred and that Maxberry
has not provided any evidence regarding disabilities or
indications regarding how the SCRA would waive the
statute of limitations.
MAXBERRY v. UNITED STATES 5
We agree with the government that the Claims Court
correctly dismissed Maxberry’s service-related claims as
barred by the statute of limitations. “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.” 28
U.S.C. § 2501. Claims of unlawful discharge or separa-
tion from armed services accrue when the member is
discharged from active duty status. See Martinez v.
United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en
banc). Claims for disability retirement pay accrue when
the appropriate military board finally denies such a claim
or refuses to hear it. See Chambers v. United States, 417
F.3d 1218, 1224 (Fed. Cir. 2005).
Maxberry separated from the Army on June 23, 1978,
giving him until June 23, 1984 to file his unlawful dis-
charge claims. The ABCMR, the first board to assess
Maxberry’s claims for disability pay, denied the claims on
August 19, 1988, giving Maxberry until August 19, 1994
to file his back pay claims. Maxberry did not file his
complaint in the Claims Court until October 3, 2016, well
beyond either expiration date. Maxberry did not raise his
equitable tolling argument before the Claims Court, and
it is therefore waived. We therefore conclude that the
court properly dismissed Maxberry’s claims as barred by
the statute of limitations.
We next turn to Maxberry’s slew of constitutional and
statutory claims. Maxberry fails to address in his briefs
how the Claims Court erred in dismissing his constitu-
tional and statutory claims for lack of jurisdiction. The
government argues that the dismissal for lack of jurisdic-
tion was proper, and we agree.
The Claims Court has jurisdiction over constitutional
or statutory violations that are money-mandating. See 28
U.S.C. § 1491(a)(1); United States v. Testan, 424 U.S. 392,
397–98 (1976). From what we can decipher, none of
6 MAXBERRY v. UNITED STATES
Maxberry’s constitutional or statutory claims are money-
mandating or otherwise confer jurisdiction in the Claims
Court. The Claims Court lacks jurisdiction over claims
based on the Fourth, Sixth, Eighth, Thirteenth, and
Fifteenth Amendments, and the Due Process clauses of
the Fifth and Fourteenth Amendments, because they are
not money-mandating. 1 The Claims Court also lacks
jurisdiction over claims based on the Civil Rights Act,
Speedy Trial Act, and Defense of Marriage Act, because
they are not money-mandating; 2 and Maxberry’s claims
1 See, e.g., Brown v. United States, 105 F.3d 621,
623 (Fed. Cir. 1997) (“Because monetary damages are not
available for a Fourth Amendment violation, the Court of
Federal Claims does not have jurisdiction over such a
violation.”); LeBlanc v. United States, 50 F.3d 1025, 1028
(Fed. Cir. 1995) (holding that the “Due Process Clauses of
the Fifth and Fourteenth Amendments” are not “a suffi-
cient basis for jurisdiction because they do not mandate
payment of money by the government”); Milas v. United
States, 42 Fed. Cl. 704, 710 (1999), aff’d 217 F.3d 854
(Fed. Cir. 1999) (holding that the Sixth Amendment is not
money-mandating); Trafny v. United States, 503 F.3d
1339, 1340 (Fed. Cir. 2007) (“The Court of Federal Claims
does not have jurisdiction over claims arising under the
Eighth Amendment, as the Eighth Amendment is not a
money-mandating provision.” (internal quotations omit-
ted)); Smith v. United States, 36 F. App’x 444, 446 (Fed.
Cir. 2002) (holding that the Claims Court lacks jurisdic-
tion over “non-contractual money claims under the Thir-
teenth Amendment”); Hernandez v. United States, 93 Fed.
Cl. 193, 198 (2010) (holding that the Fifteenth Amend-
ment does not support jurisdiction in the Claims Court).
2 See, e.g., Marlin v. United States, 63 Fed. Cl. 475,
476 (2005) (holding that “jurisdiction over claims arising
under the Civil Rights Act resides exclusively in the
district courts”); Joshua v. United States, 17 F.3d 378, 379
MAXBERRY v. UNITED STATES 7
under the Uniform Code of Military Justice, because
Maxberry was never subject to a court-martial. 3 The
court therefore properly dismissed Maxberry’s constitu-
tional and statutory claims for lack of jurisdiction.
Because we have already concluded that the Claims
Court properly dismissed all of Maxberry’s claims, we
need not also decide whether it correctly determined that
the complaint failed to state a claim upon which relief can
be granted. We have considered Maxberry’s remaining
arguments but find them to be without merit or waived.
CONCLUSION
For the foregoing reasons, we affirm the Claims
Court’s dismissal of this case.
AFFIRMED
(Fed. Cir. 1994) (affirming that the Claims Court “has no
jurisdiction to adjudicate any claims whatsoever under
the federal criminal code”); 1 U.S.C. § 7 (containing no
money-mandating provisions).
3 See, e.g., Bowling v. United States, 713 F.2d 1558,
1560 (Fed. Cir. 1983) (holding that the Claims Court has
limited jurisdiction to review a court-martial judgment if
presented as “a collateral attack . . . on constitutional
grounds”).