Malcolm v. United States
690 F. App'x 687
| Fed. Cir. | 2017Background
- Malcolm served in the Navy Feb–Dec 2002 and was discharged "other than honorable" after non-judicial punishments for misconduct.
- In April 2013 he was diagnosed with bipolar I disorder and claimed the disorder existed during his 2002 service and caused the misconduct.
- He sought an upgrade from the Naval Discharge Review Board (NDRB) in 2013 and was denied; a 2014 BCNR application to upgrade and expunge records was denied in 2015. He did not seek disability pay from the BCNR at that time.
- In May 2016 Malcolm sued in the Court of Federal Claims seeking correction of his discharge, back pay, and disability retirement pay.
- The Court of Federal Claims dismissed for lack of jurisdiction: back pay was time-barred under the six-year statute of limitations; disability-retirement claim was unripe because no military board had adjudicated it; equitable relief to change discharge could not be entertained absent a money judgment. Malcolm appealed.
Issues
| Issue | Malcolm's Argument | United States' Argument | Held |
|---|---|---|---|
| Timeliness of back-pay claim under 28 U.S.C. § 2501 | Accrual should be suspended because he was unaware of mental condition at discharge | Claim accrued at discharge in Dec 2002 and § 2501’s six-year bar thus expired before 2016 suit | Claim time-barred; accrual not suspended (Malcolm alleged awareness of problems pre-discharge) |
| Jurisdiction over disability-retirement pay | He contends entitlement to disability retirement based on later diagnosis and BCNR submissions | Court of Federal Claims lacks jurisdiction until a military board evaluates entitlement | Not ripe; no initial military-board determination or BCNR decision before suit |
| Jurisdiction to order corrective equitable relief changing discharge status | Equitable relief needed to remedy alleged wrongful discharge | Court cannot grant non-monetary relief absent jurisdiction over a monetary claim | No jurisdiction to grant equitable relief because no cognizable monetary claim was before the court |
| Standard of review for dismissal for lack of jurisdiction | (implicit) challenged trial court dismissal | Review is de novo | Affirmed dismissal for lack of jurisdiction |
Key Cases Cited
- Diaz v. United States, 853 F.3d 1355 (Fed. Cir. 2017) (standard of review: de novo for jurisdictional dismissals)
- FloorPro, Inc. v. United States, 680 F.3d 1377 (Fed. Cir. 2012) (§ 2501 six-year limitations period is jurisdictional)
- San Carlos Apache Tribe v. United States, 639 F.3d 1346 (Fed. Cir. 2011) (claim accrual occurs when events fixing liability have happened and plaintiff knew or should have known)
- Hopland Band of Pomo Indians v. United States, 855 F.2d 1573 (Fed. Cir. 1988) (accrual test adopted for claims against the government)
- Fallini v. United States, 56 F.3d 1378 (Fed. Cir. 1995) (objective accrual standard; actual knowledge not required)
- Martinez v. United States, 333 F.3d 1295 (Fed. Cir. 2003) (military-discharge back-pay claims accrue at time of discharge)
- Welcker v. United States, 752 F.2d 1577 (Fed. Cir. 1985) (narrow application of accrual-suspension; requires concealment or inherently unknowable injury)
- Japanese War Notes Claimants Ass’n v. United States, 373 F.2d 356 (Ct. Cl. 1967) (articulation of accrual-suspension principles)
- Chambers v. United States, 417 F.3d 1218 (Fed. Cir. 2005) (Court of Federal Claims lacks jurisdiction over disability-retirement claims before a military board evaluates entitlement)
- James v. Caldera, 159 F.3d 573 (Fed. Cir. 1998) (equitable relief under § 1491(a)(2) must be incident of and collateral to a money judgment)