Case: 20-2298 Document: 33 Page: 1 Filed: 08/11/2021
United States Court of Appeals
for the Federal Circuit
______________________
LEWIS B. JONES,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2020-2298
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-00520-MMS, Judge Margaret M. Sweeney.
______________________
Decided: August 11, 2021
______________________
LEWIS JONES, Kansas City, MO, pro se.
JAMES WILLIAM POIRIER, I, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for defendant-appellee. Also repre-
sented by JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN,
JR., FRANKLIN E. WHITE.
______________________
Before NEWMAN, SCHALL, and DYK, Circuit Judges.
Opinion for the court filed by Circuit Judge SCHALL.
Dissenting opinion filed by Circuit Judge NEWMAN.
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2 JONES v. US
SCHALL, Circuit Judge.
Lewis B. Jones appeals the decision of the United
States Court of Federal Claims that dismissed his
amended complaint for lack of jurisdiction. Jones v. United
States,
149 Fed. Cl. 703 (2020) (“Jones”). The Court of Fed-
eral Claims dismissed the amended complaint on the
grounds that the claims stated therein were barred by the
six-year statute of limitations set forth at 28 U.S.C. § 2501.
For the reasons stated below, we affirm.
BACKGROUND
I.
The pertinent facts are not in dispute. Mr. Jones en-
tered active-duty service in the United States Air Force
(“Air Force”) on January 29, 1981. Jones, 149 Fed. Cl. at
705. Subsequently, in 1982, while serving in Germany, he
was struck in the eye by the door of an armored personnel
carrier. Id. As his service continued, this injury resulted
in a number of sequelae, including intense headaches. Id.
In addition, over time, as a result of the injury, it became
increasingly difficult for Mr. Jones to perform his duties.
See id.
In October of 1988, Mr. Jones was referred to a Medical
Evaluation Board (“MEB”). A “Narrative Summary (Clin-
ical Resume)” dated October 16, 1988, that was before the
MEB reflects that Mr. Jones had developed “intermittent
right cranial nerve 4th palsy associated with chronic right
retro-orbital stabbing pain, usually occurring during the
late afternoon or night.” Suppl. App. 24. According to the
summary, a psychiatric consultant felt that Mr. Jones suf-
fered from psychological factors effecting a physical illness
and had recommended psychometric testing. Id. at 25. The
summary also states that Mr. Jones had previously experi-
enced headaches “three to four times a year” lasting “one
to three days.” Id. at 24. The summary further states that,
in the three months prior to the MEB proceedings, Mr.
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JONES v. US 3
Jones “noted increasing frequency and duration of head-
aches (up to two to three times a day[ ]”), and that “[i]n the
last two weeks, he noted a nearly constant headache which
was relieved only with repetitive doses of intramuscular
Demoral.” Id. On November 18, 1988, the MEB issued a
report referring Mr. Jones’s case to a Physical Evaluation
Board (“PEB”), to consider whether Mr. Jones’s medical
condition rendered him physically unfit to serve in the Air
Force. See Jones, 149 Fed. Cl. at 705–06 & n.2. Mr. Jones
provided remarks on the “Statement of Record Data,” in
which he stated that his condition had “worsened even
more since the M.E.B. evaluation.” Suppl. App. 28–29. He
indicated that he had “constant temporal and eye pain
which varie[d] in severity several times a day that [was]
incapacitating.” Suppl. App. 28. He expressed that “[p]sy-
chologically,” he felt “deformed, miserable” and possessed
“zero tolerance to stress.” Id. He remarked that, “[i]n the
event of retirement,” his injury would “positively hinder ci-
vilian employment.” Id. In a report dated December 6,
1988, the PEB recommended that Mr. Jones be discharged
with severance pay based on a 10% disability rating for
“Post traumatic pain syndrome manifest[ing] as head-
aches.” Jones, 149 Fed. Cl. at 706.
On December 29, 1988, Mr. Jones was honorably dis-
charged from the Air Force with severance pay. In 1989,
his discharge was amended to reflect the fact that his in-
jury was combat-related. Id.
In due course, Mr. Jones sought disability benefits from
the Department of Veterans Affairs (“VA”). As a result,
over a period of fifteen years, the VA issued various disa-
bility ratings or denials of disability claims in response to
claims brought by Mr. Jones. Id. Eventually, effective De-
cember 8, 2017, the VA awarded Mr. Jones a 100% disabil-
ity rating. Id.
Upon receiving this 100% disability rating from the
VA, on February 26, 2018, Mr. Jones petitioned the Air
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4 JONES v. US
Force Board for Correction of Military Records
(“AFBCMR”) for changes to his record that would entitle
him to a disability retirement dating back to 1988, when he
was discharged. Id. Before the AFBCMR, Mr. Jones also
sought disability retirement pay and benefits pursuant to
10 U.S.C. § 1201. In January of 2020, the AFBCMR denied
Mr. Jones’s petition. Id.
II.
On April 23, 2020, Mr. Jones filed a complaint in the
Court of Federal Claims seeking review of the AFBCMR
decision. Thereafter, on July 1, 2020, he filed an amended
complaint. Jones, 149 Fed. Cl. at 706.
On August 25, 2020, the Court of Federal Claims
granted the government’s motion to dismiss pursuant to its
Rule 12(b)(1). Although the court determined that Mr.
Jones’s claim for disability retirement pay and benefits
pursuant to 10 U.S.C. § 1201 was a claim under a money-
mandating statute, as required by the Tucker Act, 28
U.S.C. § 1491(a)(1), and thus within the scope of its juris-
diction, it concluded that it lacked jurisdiction because the
claim was barred by the statute of limitations. Id. at 707–
08.
To fall within the jurisdiction of the Court of Federal
Claims, a claim against the United States filed in that
court must be “filed within six years after such claim first
accrues.” 28 U.S.C. § 2501; see also John R. Sand & Gravel
Co. v United States,
552 U.S. 130, 132–35 (2008). “A cause
of action cognizable in a Tucker Act suit accrues as soon as
all events have occurred that are necessary to enable the
plaintiff to bring suit, i.e., when ‘all events have occurred
to fix the Government’s alleged liability, entitling the
claimant to demand payment and sue . . . for his money.’”
Martinez v. United States,
333 F.3d 1295, 1303 (Fed. Cir.
2003) (en banc) (quoting Nager Elec. Co. v. United States,
368 F.2d 847, 851 (Ct. Cl. 1966)).
Case: 20-2298 Document: 33 Page: 5 Filed: 08/11/2021
JONES v. US 5
The Court of Federal Claims determined that Mr.
Jones’s claim for disability retirement pay and benefits ac-
crued on December 29, 1988, the date of his discharge from
the Air Force. Jones, 149 Fed. Cl. at 708. As noted above,
Mr. Jones’s discharge followed the determination of the
PEB earlier in December that Mr. Jones should be sepa-
rated, and not retired, due to his disabling trauma mani-
festing as headaches. Having determined that Mr. Jones’s
claim accrued upon his discharge, the court ruled that it
was time-barred. The court stated:
[b]ecause Mr. Jones did not file suit in this court
within six years of his separation from the Air
Force in 1988, but instead filed suit more than
thirty years later, his claim for disability retire-
ment pay and benefits is barred by 28 U.S.C.
§ 2501.
Id. In reaching this conclusion, the court ruled that Mr.
Jones could not rely on the accrual suspension rule, under
which “the accrual of a claim against the United States is
suspended, for purposes of 28 U.S.C. § 2501, until the
claimant knew or should have known that the claim ex-
isted.” Id. at 709 (quoting Martinez,
333 F.3d at 1319). Ac-
cording to the court, the “amended complaint establishe[d]
a record of Mr. Jones’s knowledge of his various health con-
ditions in the months leading up to his discharge,” and thus
“[t]he facts of this case do not show that Mr. Jones’s disa-
bling health problems were inherently unknowable in
1988.”
Id. at 709.
Based upon these findings, the court granted the gov-
ernment’s motion to dismiss and directed the entry of judg-
ment accordingly. Following the entry of judgment, Mr.
Jones timely appealed. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(3).
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6 JONES v. US
DISCUSSION
I.
Whether the Court of Federal Claims has jurisdiction
over a claim is a question of law that we review de novo.
Biafora v. United States,
773 F.3d 1326, 1334 (Fed. Cir.
2014). We review the court’s findings of fact relating to ju-
risdictional issues for clear error.
Id.
II.
The Court of Federal Claims did not err in ruling that
Mr. Jones’s claim accrued upon the date of his discharge
and therefore was barred by the six-year statute of limita-
tions set forth at 28 U.S.C. § 2501.
The generally accepted rule is that claims of enti-
tlement to disability retirement pay do not accrue
until the appropriate board either finally denies
such a claim or refuses to hear it. The decision by
the first statutorily authorized board which hears
or refuses to hear the claim is the triggering event.
If at the time of discharge an appropriate board
was requested by the service member and the re-
quest was refused or if the board heard the service
member’s claim but denied it, the limitations pe-
riod begins to run upon discharge. A subsequent
petition to the corrections board does not toll the
running of the limitations period; nor does a new
claim accrue upon denial of the petition by the cor-
rections board.
Real v. United States,
906 F.2d 1557, 1560 (Fed. Cir. 1990)
(citing Friedman v. United States,
310 F.2d 381, 390, 396–
98 (Ct. Cl. 1962)); accord Chambers v. United States,
417
F.3d 1218, 1221, 1224–25, 1227 (Fed. Cir. 2005); Martinez,
333 F.3d at 1311–15.
Moreover, as the Court of Federal Claims noted, statu-
torily authorized military boards whose decisions are
Case: 20-2298 Document: 33 Page: 7 Filed: 08/11/2021
JONES v. US 7
sufficient to trigger the running of the six-year limitations
period include PEBs. Chambers,
417 F.3d at 1225 & n.2;
Schmidt v. United States,
89 Fed. Cl. 111, 120 (2009) (“An
‘informal’ [Central Physical Evaluation Board] decision is
sufficient to start the running of the statute of limita-
tions.”).
III.
On appeal, Mr. Jones devotes the bulk of his brief to
the argument that the Court of Federal Claims erred when
it held the accrual suspension rule does not apply to his
claim. According to Mr. Jones, the PEB’s discharge deci-
sion in 1988 was founded solely on his headaches (post-
traumatic pain syndrome), whereas he was later diagnosed
with traumatic brain injury (“TBI”) and Post-Traumatic
Stress Disorder (“PTSD”). See, e.g., Appellant’s Informal
Br. 12, 13, 16, 17. He contends that because the MEB and
PEB could not have articulated his health problems to be
TBI and PTSD, they were “unknowable” at the time of his
discharge. Thus, Mr. Jones argues, his claim for retire-
ment benefits did not accrue until he was diagnosed with
TBI and PTSD in 2017.
Id. at 10–12.
To take advantage of the accrual suspension rule, a
plaintiff must either show that the “defendant has con-
cealed its acts with the result that plaintiff was unaware of
their existence or it must show that its injury was ‘inher-
ently unknowable’ at the accrual date.” Martinez,
333 F.3d
at 1319 (quoting Welcker v. United States,
752 F.2d 1577,
1580 (Fed. Cir. 1985)). The accrual suspension rule is
“strictly and narrowly applied.”
Id. (quoting Welcker,
752
F.2d at 1580). As the government points out, the record
makes it clear that, in 1988, Mr. Jones knew that he had
been injured, knew that he suffered physical and psycho-
logical symptoms as a result of his injury, knew that these
symptoms had an impact upon his ability to work, and
knew that the PEB had considered his symptoms and his
ability to work, and had rated him only 10% disabled.
Case: 20-2298 Document: 33 Page: 8 Filed: 08/11/2021
8 JONES v. US
Appellee’s Br. 19–20; Suppl. App. 24–29. Moreover, the
Court of Federal Claims explained why Mr. Jones’s claim
was not inherently unknowable for these reasons. See
Jones, 149 Fed. Cl. at 709–10 (“In this case, the record
shows that Mr. Jones recognized the disabling nature of his
health problems in 1988; thus, his claim accrued in 1988
when he was discharged with severance pay rather than
with disability retirement pay and benefits.”). The court
explained that Mr. Jones may not have had a full under-
standing of all of his health problems in 1988, but his dis-
ability retirement claim was not inherently unknowable in
1988. Id. at 709. Thus, even though Mr. Jones had not
been diagnosed as having TBI or PTSD, he was aware of
the “incapacitating” nature of his injury and believed that
it would “positively hinder” his future employment. Suppl.
App. 28. Accordingly, he had an understanding of the seri-
ousness of his condition that was sufficient to justify a con-
clusion that he could have sought earlier redress. See Real,
906 F.2d at 1561–62; see also Young v. United States,
529
F.3d 1380, 1385 (Fed. Cir. 2008) (“It is a plaintiff’s
knowledge of the facts of the claim that determines the ac-
crual date.”) (first citing United States v. Kubrick,
444 U.S.
111, 122 (1979), then citing Catawba Indian Tribe v.
United States,
982 F.2d 1564, 1572 (Fed. Cir. 1993)). The
accrual suspension rule therefore does not apply.
IV.
We have considered Mr. Jones’s additional arguments
and have found them all to be without merit.
CONCLUSION
For the foregoing reasons, we affirm the decision of the
Court of Federal Claims dismissing Mr. Jones’s amended
complaint for lack of jurisdiction.
AFFIRMED
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JONES v. US 9
COSTS
No costs.
Case: 20-2298 Document: 33 Page: 10 Filed: 08/11/2021
United States Court of Appeals
for the Federal Circuit
______________________
LEWIS B. JONES,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2020-2298
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-00520-MMS, Judge Margaret M. Sweeney.
______________________
NEWMAN, Circuit Judge, dissenting.
When Lewis B. Jones was honorably discharged from
the United States Air Force in 1988 because of an eye in-
jury, he received severance pay and a 10% disability rating.
He was not granted disability retirement, which requires a
disability rating of at least 30%. Thus, even if the six-year
Tucker Act statute of limitations were to apply to review of
actions of correction boards, a limitations bar cannot ac-
crue before the action could have been brought. From the
court’s dismissal of this appeal on limitations grounds, I
respectfully dissent.
The Court of Federal Claims, and now the Federal Cir-
cuit, hold that this action is subject to a six-year period of
limitations accruing from the date of Mr. Jones’ 1988 dis-
charge with 10% disability, but since disability retirement
Case: 20-2298 Document: 33 Page: 11 Filed: 08/11/2021
2 JONES v. US
requires at least 30% disability (or 20 years of service, not
here applicable), Mr. Jones was not entitled to disability
retirement in 1988. As provided in 10 U.S.C.
§ 1201(b)(3)(B), to be eligible for disability retirement “the
disability is at least 30 percent under the standard sched-
ule of rating disabilities in use by the Department of Vet-
erans Affairs at the time of the determination.”
Air Force Instruction 36-3212 Physical Evaluation for
Retention, Retirement and Separation (15 July 2019) pro-
vides:
¶ 3.13. Determining Compensable Disabili-
ties. Eligibility for referral to the DES for fitness
determinations does not automatically confer re-
tirement or separation benefits to the service mem-
ber. A service member determined unfit to perform
the duties of his or her office, grade, rank, or rating
because of disability may be eligible for disability
compensation. The PEB determines compensabil-
ity in accordance with DoDI 1332.18, Appendix 3 to
Enclosure 3.
***
¶ 3.17. Recommended Disposition. Upon re-
view and evaluation of a disability case, the PEB
recommends one of the following dispositions. (See
Table 3.1 for a recommended disposition decision
rules):
***
3.17.2. Permanent Disability Retirement.
Applies to service members who have been
found unfit, the condition is stable and per-
manent, and the total disability rating is 30
percent or greater or the service member
has 20 years or more service computed un-
der 10 U.S.C. § 1208 regardless of the com-
bined compensable disability rating.
Case: 20-2298 Document: 33 Page: 12 Filed: 08/11/2021
JONES v. US 3
The question on this appeal is not whether Mr. Jones is
entitled to the award of retroactive disability retirement
pay, for the Court of Federal Claims did not decide the mer-
its of Mr. Jones’ action. The question before us is whether
this suit is barred by the Tucker Act six-year statute of lim-
itations.
The Court of Federal Claims accepted the govern-
ment’s position that Mr. Jones’ claim became barred six
years after his 1988 discharge, although his 10% disability
rating was not entitled to disability retirement. That is not
correct application of limitations law. See Martinez v.
United States,
333 F.3d 1295, 1303 (Fed. Cir. 2003) (en
banc) (“A cause of action cognizable in a Tucker Act suit
accrues as soon as all events have occurred that are neces-
sary to enable the plaintiff to bring suit, i.e., when ‘all
events have occurred to fix the Government’s alleged liabil-
ity, entitling the claimant to demand payment and sue here
for his money.’”) (quoting Nager Elec. Co. v. United States,
368 F.2d 847, 851 (Ct. Cl. 1966)). “‘Accrue’ is ‘[t]o come into
existence as an enforceable claim or right.’” Shoshone In-
dian Tribe of Wind River Reserve, Wyo. v. United States,
51
Fed. Cl. 60, 67, n.8 (2001) (quoting Black’s Law Dictionary
21 (7th ed. 1999)).
The Court of Federal Claims reports that Mr. Jones
was rated 50% disabled in 2005 and 100% disabled in 2017.
Jones v. United States,
149 Fed. Cl. 703, 706 (2020). After
Mr. Jones was rated 100% disabled, he requested the Air
Force Board for Correction of Military Records
(“AFBCMR”) to correct his 1988 discharge to establish en-
titlement to disability retirement from the date of dis-
charge. The Court of Federal Claims, stating that “Mr.
Jones now seeks review of the AFBCMR’s decision,” held
that the requested action was barred by the Tucker Act
statute of limitations.
Id. at 706, 710.
This holding violates limitations principles, for a
Tucker Act suit cannot be brought until “all events have
Case: 20-2298 Document: 33 Page: 13 Filed: 08/11/2021
4 JONES v. US
occurred that are necessary to enable the plaintiff to bring
suit.” Martinez,
333 F.3d at 1303. Although Mr. Jones had
no claim for disability retirement with a 10% disability rat-
ing, my colleagues hold that he could have and should have
taken some sort of action in 1988:
[E]ven though Mr. Jones had not been diagnosed as
having TBI or PTSD [at discharge in 1988], he was
aware of the “incapacitating” nature of his injury
and believed that it would “positively hinder” his
future employment. Accordingly, he had an under-
standing of the seriousness of his condition that
was sufficient to justify a conclusion that he could
have sought earlier redress.
Maj. Op. at 8 (internal citation omitted). According to the
majority, Mr. Jones’ symptoms at the time of his discharge
were such that he “could have sought earlier redress,”
id.,
whereby the majority concludes that the statute of limita-
tions bars suit for redress six years after discharge. How-
ever, with only 10% disability, he was not entitled to
“earlier redress.”
The court errs in holding that the period of limitations
accrued from the date of discharge in 1988. The record be-
fore us does not explain how Mr. Jones’ undiagnosed disa-
bilities qualified him for disability retirement in 1988, and
the Court of Federal Claims did not discuss the merits. My
concern is with the ruling that although Mr. Jones did not
have a legally cognizable claim in 1988, this claim became
barred after six years.
The government urges that the statute of limitations
was properly applied, stating that “[i]n 1988, Mr. Jones
could have filed suit to challenge the disability rating by
the Air Force as insufficient, and so could have sought a
medical retirement.” Gov’t Br. 20. The government re-
sponds to Mr. Jones’ argument that he was not aware of all
his ailments in 1988 “and so it was impossible for him to
make a claim in 1988,” with the response that “it was not
Case: 20-2298 Document: 33 Page: 14 Filed: 08/11/2021
JONES v. US 5
necessary for Mr. Jones to know the term ‘PTSD’ in order
to bring suit. There was no requirement that Mr. Jones
give this name (or any name) to his symptoms. Instead,
Mr. Jones merely needed to show that he was injured dur-
ing his military service, and that, as a result, he qualified
for a rating of 30 percent disability.”
Id. The government
states that Mr. Jones “understood that the symptoms ex-
perienced in 1988 would have an impact upon his ability to
work,” and therefore “accrual of his claim should not be
suspended.” Gov’t Br. 22.
The government also rejects Mr. Jones’ alternative ar-
guments of equitable tolling, his reference to Department
of Defense guidance documents, and any theory of “legal
disability.” Govt Br. 24–27.
It is not disputed that Mr. Jones’ present 100% disabil-
ity is a “disability resulting from personal injury suffered
or disease contracted in line of duty.” 38 U.S.C. § 1110.
There is no issue before us concerning this rating; the only
issue is the holding that a limitations bar arose six years
after his 1988 discharge from service.
No law or policy requires a veteran to apply for or sue
for a benefit within a statutory period after he might have
become eligible for the benefit. The veterans’ laws recog-
nize the possible progression of service-connected disabil-
ity, and simply hold that any compensation to which the
veteran is or becomes entitled is paid only from the date of
application, although the evidence of service-connection
may span decades. A veteran’s claim is not barred if the
claim could have been brought more than six years earlier.
Heretofore, a claim for service-connected benefits could
be filed at the veteran’s choice, although benefits are pay-
able only from the date of filing the claim. Today’s holding
is a significant change for veterans’ claims. I respectfully
dissent.
