NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RONALD BIAS,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-2116
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00634-CFL, Judge Charles F.
Lettow.
______________________
Decided: January 26, 2018
______________________
RONALD BIAS, Richmond, TX, pro se.
MICHAEL D. SNYDER, 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.,
DOUGLAS K. MICKLE.
______________________
Before LOURIE, O’MALLEY, and HUGHES, Circuit Judges.
2 BIAS v. UNITED STATES
PER CURIAM.
Ronald Bias was mistakenly retired from the United
States Marine Corps in 2006, before he had accrued
sufficient service time to render him eligible for retire-
ment. After receiving retirement pay for about three
years, the mistake was discovered and he returned to
active duty until his ultimate retirement in 2010. At the
trial court and here on appeal, Mr. Bias makes two pri-
mary arguments: (1) that he should have received full
back pay during the period of his mistaken retirement;
and (2) that his 2010 retirement was involuntarily caused
by a retaliatory order to change duty stations. We con-
clude that the Court of Federal Claims lacked jurisdiction
to consider these arguments. Thus, we affirm in part and
reverse in part.
I
This case has a lengthy factual and procedural histo-
ry, much of which is detailed in the thorough decision
from the Court of Federal Claims. We presume familiari-
ty with the facts and only recite those that are necessary
to this decision.
Mr. Bias is a retired Lieutenant Colonel in the United
States Marine Corps, where he served both on active duty
and in the active reserve. After being notified that he had
completed twenty years of qualifying service and was
eligible for active duty retirement, he initially retired on
November 1, 2006.
That notification turned out to be in error. When
Mr. Bias retired, he actually had accumulated only eight-
een years and approximately nine months of active duty
service, not the twenty years of service previously at-
tributed to him. Accordingly, in 2009, the Marine Corps
notified Mr. Bias that he must return to active duty and
serve until he accumulated twenty years of service to
qualify for retirement or otherwise be discharged.
BIAS v. UNITED STATES 3
Mr. Bias was also notified, around the same time, that he
would be required to repay the retirement pay he had
improperly received.
Mr. Bias returned to active duty in 2009 as an in-
structor. While he was on active duty as an instructor, he
received permanent change of station orders. Rather
than comply with those orders, he chose to retire on
November 1, 2010. By then, he had accrued more than
twenty years of active service and was eligible for retire-
ment pay.
Multiple proceedings then occurred in the Board for
Correction of Naval Records and at the Court of Federal
Claims. Ultimately, the Board found, as a matter of
equity, that he should be considered a de facto retiree
from the date of his original incorrect retirement in 2006,
and thus directed that his records be corrected to reflect
that conclusion. That decision also meant that his re-
tirement pay indebtedness would be waived. 1
Mr. Bias then filed a second amended complaint, chal-
lenging the Marine Corps’s actions that resulted in his
2006 and 2010 retirements. And he alleged that the
Board granted him only partial relief through the de facto
retirement status. He sought retroactive reinstatement to
active duty as of November 1, 2006 with full back pay and
allowances, as well as correction of his administrative
records. He also requested that the court void his 2010
1 The Defense Finance and Accounting Service
(DFAS) explained that the “De Facto Retired Member”
doctrine aims to prevent hardship by allowing an errone-
ously retired service member to retain the already re-
ceived retirement pay, even as the member returns to
active duty to accumulate the twenty years of service
necessary to qualify for retirement.
4 BIAS v. UNITED STATES
retirement and place him in de facto retirement status
starting November 1, 2010, purportedly so he could claim
retroactive reinstatement to active duty and back pay
from November 1, 2010 while retaining the retirement
benefits that he had already received since his retirement.
The Court of Federal Claims found that it had Tucker
Act jurisdiction over Mr. Bias’s claims for back pay and
allowances arising from his 2006 retirement and that the
statute of limitations had not expired, but found that he
failed to show that the Board committed reversible error.
The court also found that it lacked jurisdiction over
whistleblower retaliation and privacy violation claims
arising from his 2010 retirement.
Mr. Bias appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(3). We agree with the trial court that it
lacked jurisdiction over the claims arising from the 2010
retirement, but disagree that the court possessed jurisdic-
tion over the claims arising from the 2006 retirement.
Those claims were barred by the applicable statute of
limitations, which in the Court of Federal Claims is
jurisdictional.
II
A
Mr. Bias challenged his 2006 retirement, claiming en-
titlement to full back pay and allowances, correction of his
administrative records, and retroactive reinstatement to
active duty as of November 1, 2006 by alleging, at bottom,
a wrongful discharge claim. The Court of Federal Claims
determined that the Military Pay Act, 37 U.S.C. § 204,
provided it with the Tucker Act jurisdiction over those
BIAS v. UNITED STATES 5
claims. 2 We review a decision of the Court of Federal
Claims regarding its own jurisdiction de novo. Hymas v.
United States,
810 F.3d 1312, 1317 (Fed. Cir. 2016).
The Court of Federal Claims may hear a claim arising
under the Tucker Act only if the claim first accrued within
six years of the filing of the complaint. 28 U.S.C. § 2501;
Martinez v. United States,
333 F.3d 1295, 1304 (Fed. Cir.
2003) (en banc). This statute of limitations is jurisdic-
tional in nature and is strictly construed. John R. Sand
& Gravel Co. v. United States,
552 U.S. 130, 133–34
(2008).
The Court of Federal Claims found that the six-year
statute of limitations had not expired on Mr. Bias’s claims
relating to his 2006 retirement because those claims did
not accrue until 2009, when the Marine Corps notified
him about the error regarding his retirement eligibility
and directed him to either return to active duty or be
discharged. But a claim accrues for purposes of 28 U.S.C.
§ 2501 “‘when all the events have occurred which fix the
liability of the Government and entitle the claimant to
institute an action.’” FloorPro, Inc. v. United States,
680
F.3d 1377, 1381 (Fed. Cir. 2012) (quoting Goodrich v.
United States,
434 F.3d 1329, 1333 (Fed. Cir. 2006)).
Indeed, “a Tucker Act claim for back pay accrues all at
once at the time of discharge; the claim for back pay is not
a ‘continuing claim’ that accrues each time a payment
would be due throughout the period that the service
member would have remained on active duty.”
Martinez,
333 F.3d at 1303 (citations omitted).
2 Mr. Bias alternatively relies on 10 U.S.C. § 6323
to establish jurisdiction. Because he did not claim enti-
tlement to retirement pay, § 6323 is irrelevant to the
jurisdictional analysis.
6 BIAS v. UNITED STATES
Here, the claims accrued on the date of Mr. Bias’s dis-
charge from the service—November 1, 2006—when he
ceased receiving active duty pay and allowances to which
he now claims he is entitled. See Bowen v. United States,
292 F.3d 1383, 1385–86 (Fed. Cir. 2002) (holding that a
claim for military back pay accrued when the service
member was informed that the Army considered him
released from active duty, and when he ceased receiving
military pay from the Army). “[T]he statute of limitations
for Tucker Act claims is not tolled by the claimant’s
exercise of his right to seek permissive administrative
review of his claim.”
Martinez, 333 F.3d at 1312. Accord-
ingly, Mr. Bias’s petition to the Board did not toll the
statute of limitations for his entitlement to back pay.
Mr. Bias’s entitlement to back pay was also not con-
tingent on the DFAS asking him to pay back the retire-
ment benefits that he had earned between 2006 and 2009.
DFAS’s notification was grounded in an administrative
error—the Marine Corps’s miscalculation of Mr. Bias’s
retirement eligibility. That miscalculation had already
occurred before he chose to retire, entitling him to insti-
tute an action immediately upon his retirement from
active duty. Indeed, the fact that Mr. Bias relied on the
administrative error before proceeding to request retire-
ment, see Appx 9, 3 bolsters the conclusion that all events
entitling him to institute an action for back pay had
occurred prior to his retirement, regardless of how he
chooses to characterize his claims. The date of the DFAS
notification would have been relevant to the statute of
limitations to challenge DFAS’s decision to collect the
retirement indebtedness, but that issue was obviated by
the Board’s decision to waive collection.
3 “Appx” refers to Appendix A attached to Mr. Bi-
as’s opening brief.
BIAS v. UNITED STATES 7
It is immaterial whether Mr. Bias subjectively knew
about the administrative error or whether it was the 2009
notice that alerted him to the possibility of his claims for
back pay and allowances. Fallini v. United States,
56
F.3d 1378, 1380 (Fed. Cir. 1995) (“The question whether
the pertinent events have occurred is determined under
an objective standard; a plaintiff does not have to possess
actual knowledge of all the relevant facts in order for the
cause of action to accrue.”). The 2009 notice did not alter
the nature of the administrative error by the Marine
Corps, the actual factual predicate of his claims. Indeed,
the Court of Federal Claims found that “[t]he Marine
Corps learned of its mistake in 2009,” Appx 2, not that
Mr. Bias was wrongfully discharged in 2009. The mere
fact that the Marine Corps erroneously informed Mr. Bias
that he had the option to retire entitled him to sue imme-
diately upon his retirement. 4
Mr. Bias filed his suit in the Court of Federal Claims
on June 19, 2015, but his active duty service between
August 1, 2009 and October 31, 2010 tolled the limita-
tions period for fifteen months, see 50 U.S.C. § 3936(a).
For his claims to be timely, Mr. Bias’s claims must have
accrued on or after March 19, 2008—that is, six years
prior to the date he filed his complaint plus the fifteen
month tolling period. Because the claims accrued on
November 1, 2006, the Court of Federal Claims lacked
4 Regardless, Mr. Bias petitioned the Board in July
2007, seeking reinstatement to active duty as of Novem-
ber 1, 2006 as well as back pay and allowances. This
suggests, at a minimum, that Mr. Bias was aware that his
retirement on November 1, 2006 accrued his claims for
back pay and allowances, albeit under a different alleged
administrative error.
8 BIAS v. UNITED STATES
jurisdiction to hear Mr. Bias’s claims based on his 2006
retirement.
B
Mr. Bias also challenged his 2010 retirement, alleging
retaliation and privacy violations and requesting that the
Court of Federal Claims void his 2010 retirement.
The court found that it lacked jurisdiction over those
claims. Mr. Bias argues on appeal that the court erred
because it maintains jurisdiction over a final agency
action, in this case a determination by the Board that the
evidence did not support his claims of whistleblower
retaliation and violations of his privacy. But the Court of
Federal Claims lacks jurisdiction over claims where, as
here, the factual underpinnings of the claims presented to
the agency, or for that matter to the court, lie entirely in
whistleblower retaliation under the Military Whistle-
blower Protection Act (MWPA), 10 U.S.C. § 1034, or
privacy violations under the Privacy Act of 1974, 5 U.S.C.
§ 552a.
The MWPA provides for a comprehensive administra-
tive review scheme over claims of retaliation—specifically,
the correction of military records and disciplinary actions
as remedies for prohibited actions—but no private right of
action for money damages, which could be enforced in the
Court of Federal Claims. Indeed, no judicial review is
available under the MWPA because Congress precluded
alternative fora by providing a specific form of redress in
the statute. See Klingenschmitt v. United States, 119 Fed.
Cl. 163, 185 (2014) (explaining that the court lacks juris-
diction over whistleblower retaliation claims because the
MWPA’s “comprehensive scheme establishes that Con-
gress did not intend to provide plaintiffs with a private
cause of action to enforce their rights under the MWPA in
court” (citations omitted)), aff’d, 623 F. App’x 1013 (Fed.
Cir. 2015), cert. denied,
137 S. Ct. 93 (2016); Rana v.
United States, 664 F. App’x 943, 948 (Fed. Cir. 2016)
BIAS v. UNITED STATES 9
(holding that the MWPA is not money-mandating, relying
on the fact that the Act “provides for a specific non-
monetary remedy—correction of the record of a prohibited
personnel action—but does not provide for monetary
relief,” and affirming the dismissal of a whistleblower
claim under the Act), cert. denied,
137 S. Ct. 2101 (2017);
Soeken v. United States,
47 Fed. Cl. 430, 433 (2000)
(“Because the Military Whistleblower Protection Act
provides strictly administrative remedies, plaintiff does
not have a private cause of action on which to file a claim
in this court.”), aff’d, 20 F. App’x 900 (Fed. Cir. 2001);
Acquisto v. United States,
70 F.3d 1010, 1011 & n.2 (8th
Cir. 1995) (reviewing “the statutory language, the legisla-
tive history, and administrative regulations” and holding
that § 1034 does not provide a service member “with any
private cause of action, express or implied”); Penland v.
Mabus,
78 F. Supp. 3d 484, 495 (D.D.C. 2015) (“[T]he
MWPA does not provide a private cause of action.” (citing
inter alia
Acquisto, 70 F.3d at 1011)). But see Rodriguez
v. Penrod,
857 F.3d 902, 906 (D.C. Cir. 2017) (observing
that because “the entire Whistleblower Act is ‘silent’ on
the question of judicial review,” including the provision
for seeking relief from “boards for correction of military
records,” “district courts have routinely reviewed those
board decisions in the first instance.” (citing inter alia
Kidwell v. Dep’t of Army, Bd. for Corr. of Military Records,
56 F.3d 279, 283–84 (D.C. Cir. 1995))).
And while “the Privacy Act creates a civil cause of ac-
tion for monetary damages, the Act expressly vests juris-
diction for such claims in the United States District
Courts.” Parker v. United States,
77 Fed. Cl. 279, 291
(2007) (citing 5 U.S.C. § 552a(g)(1)), aff’d, 280 F. App’x
957, 958 (Fed. Cir.) (“[T]o the extent Mr. Parker intended
to bring a claim under the Privacy Act, the Court of
Federal Claims is not the proper forum for such action.”),
reh’g and reh’g en banc denied (Fed. Cir. 2008); Conner v.
United States, 641 F. App’x 972, 975 (Fed. Cir. 2016) (“We
10 BIAS v. UNITED STATES
. . . agree with the Claims Court that it lacks jurisdiction
over Privacy Act claims . . . because the federal district
courts possess exclusive jurisdiction over such matters.”
(citations omitted)); see also Frazier v. United States, 683
F. App’x 938, 940 (Fed. Cir. 2017) (rejecting outright that
the Privacy Act contains money-mandating provisions
that would give the Court of Federal Claims jurisdiction
over claimed violations of the Act). It is unremarkable
that “[t]he Court of Federal Claims ‘does not have juris-
diction to review the decisions of district courts.’” Vereda,
Ltda. v. United States,
271 F.3d 1367, 1375 (Fed. Cir.
2001) (quoting Joshua v. United States,
17 F.3d 378, 380
(Fed. Cir. 1994)).
III
Because the Court of Federal Claims lacked jurisdic-
tion over Mr. Bias’s claims of wrongful discharge in 2006,
we reverse the court’s denial of the United States’ motion
to dismiss for lack of jurisdiction. Because the court
additionally lacked jurisdiction over Mr. Bias’s claims of
wrongful discharge in 2010, we affirm the court’s dismis-
sal of those claims.
REVERSED-IN-PART AND AFFIRMED-IN-PART
COSTS
No costs.
