97 Fed. Cl. 221
Fed. Cl.2011Background
- Fulbright, a US Army veteran, seeks disability retirement pay via Tucker Act claim; he was discharged from active duty in 1989 and later placed in Retired Reserve.
- VA awarded 50% disability in 1990, but ARPER-CEN informed in 1991 he did not meet retention standards; he elected Retired Reserve status.
- ABCMR considered disability processing in 1993 and found no medically unfitting disability; VA rating did not establish entitlement to medical retirement.
- Fulbright petitioned ABCMR again in 2008–2009; final December 15, 2009 decision denied disability retirement eligibility.
- Plaintiff filed suit in 2010; defendant moved to dismiss arguing six-year SOL under 28 U.S.C. § 2501; accrual tied to first ABCMR denial in 1993.
- Court concludes accrual occurred by April 7, 1993, rendering suit filed in 2010 time-barred and subject matter jurisdiction lacking
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the six-year SOL bar the Tucker Act claim? | Fulbright contends accrual delayed; seeks judicial review of ABCMR decision. | Discretionary accrual when first proper board denied relief; filing after 1993 is untimely. | Claim time-barred; accrual by 1993 and six-year period expired. |
| Is APA review available or does Tucker Act jurisdiction apply? | Seeks review of ABCMR decision under APA. | APA lacks money damages; Tucker Act governs monetary claims. | APA jurisdiction not available; Tucker Act governs and limits review. |
| Should the case be transferred under 28 U.S.C. § 1631? | If lacking jurisdiction, transfer to DC District Court is appropriate. | No transfer because full and adequate remedy was not available in FCFC court. | Not transferred; FCFC lacks jurisdiction and cannot offer adequate remedy. |
| Should the court suspend proceedings pending Henderson v. Shinseki? | Stay pending Supreme Court resolution of Henderson. | Henderson is inapplicable; John R. Sand governs tolling. | Stay denied; Henderson not controlling. |
Key Cases Cited
- Chambers v. United States, 417 F.3d 1218 (Fed. Cir. 2005) (disability retirement accrues when board denies or fails to hear claim)
- Friedman v. United States, 310 F.2d 381 (Ct. Cl. 1962) (no tolling after final board action; accrual tied to denial)
- Real v. United States, 906 F.2d 1557 (Fed. Cir. 1990) (accrual tied to denial/retirement entitlement timing)
- Martinez v. United States, 333 F.3d 1295 (Fed. Cir. 2003) (APA actions differ from Tucker Act actions; accrual framework differs)
- John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (Sup. Ct. 2008) (§ 2501 jurisdictional; cannot be waived; accrual governs timeliness)