Malcolm v. United States , 690 F. App'x 687 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD RALPH MALCOLM,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-1543
______________________
Appeal from the United States Court of Federal
Claims in No. 1:16-cv-00545-EDK, Judge Elaine Kaplan.
______________________
Decided: June 12, 2017
______________________
RICHARD RALPH MALCOLM, Miramar, FL, pro se.
JOSHUA A. MANDLEBAUM, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for defendant-appellee. Also
represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,
JR., DOUGLAS K. MICKLE.
______________________
Before PROST, Chief Judge, BRYSON and HUGHES, Circuit
Judges.
2 MALCOLM v. UNITED STATES
PER CURIAM.
Richard Malcolm appeals from a final judgment of the
Court of Federal Claims dismissing for lack of jurisdiction
his action to correct his Naval discharge status, for back
pay, and for disability retirement pay. Because the Court
of Federal Claims did not err, we affirm.
I
Mr. Malcolm served in the Navy from February 2002
to December 2002. During his ten-month period of ser-
vice, he was subject to several non-judicial punishments
for improper conduct, which ultimately resulted in his
discharge under “other than honorable” conditions.
More than ten years later, in April 2013, Mr. Malcolm
was diagnosed with bipolar I disorder. Shortly after his
diagnosis, he filed a request before the Naval Discharge
Review Board (NDRB) to upgrade the character of his
discharge from “other than honorable” to “honorable.”
According to Mr. Malcolm, he suffered from bipolar disor-
der in 2002 and thus was not responsible for the actions
leading to his discharge for misconduct. In January 2014,
the NDRB denied Mr. Malcolm’s request.
In March 2014, Mr. Malcolm filed a request with the
Board for Correction of Naval Records (BCNR) to upgrade
his discharge to “honorable” and expunge his disciplinary
records. In this request, he argued that the Navy had
denied him treatment for his bipolar disorder. Mr. Mal-
colm, however, did not seek disability benefits from the
BCNR. In July 2015, the BCNR denied Mr. Malcolm’s
request.
In May 2016, Mr. Malcolm filed suit in the Court of
Federal Claims seeking the correction of his naval records
to reflect an “honorable” discharge, a concomitant award
of back pay, and an award of disability retirement pay. In
January 2017, the Court of Federal Claims dismissed the
complaint for lack of jurisdiction. The Court of Federal
MALCOLM v. UNITED STATES 3
Claims found that the claim for back pay was time-barred
and the claim for disability retirement pay was not ripe.
Therefore, in the absence of jurisdiction over a monetary
claim, the court found that it lacked jurisdiction over Mr.
Malcolm’s non-monetary claim to change his discharge
status. Mr. Malcolm appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
II
We review de novo a decision by the Court of Federal
Claims to dismiss for lack of jurisdiction. Diaz v. United
States, 853 F.3d 1355, 1357 (Fed. Cir. 2017).
The Court of Federal Claims correctly found that Mr.
Malcolm’s claim for back pay under the Military Pay Act
is time-barred. “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. “This six-year
limitations period is jurisdictional and may not be waived
or tolled.” FloorPro, Inc. v. United States, 680 F.3d 1377,
1380–81 (Fed. Cir. 2012). A claim against the govern-
ment generally accrues “when all the events which fix the
government’s alleged liability have occurred and the
plaintiff was or should have been aware of their exist-
ence.” San Carlos Apache Tribe v. United States, 639 F.3d
1346, 1350 (Fed. Cir. 2011) (quoting Hopland Band of
Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed.
Cir. 1988)). “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 ac-
crue.” Fallini v. United States, 56 F.3d 1378, 1380 (Fed.
Cir. 1995).
Mr. Malcolm alleges that he was separated from the
Navy in December 2002. Thus, his cause of action ac-
crued in December 2002. See Martinez v. United States,
333 F.3d 1295, 1303 (Fed. Cir. 2003) (holding that in a
4 MALCOLM v. UNITED STATES
military discharge case, “plaintiff’s cause of action for
back pay accrues at the time of the plaintiff’s discharge”).
Mr. Malcolm did not file his complaint at the Court of
Federal Claims until May 2016, more than thirteen years
after the cause of action accrued and seven years after the
limitations period had run. Mr. Malcolm argues that the
accrual of his improper discharge claim should be sus-
pended because he was unaware of a mental problem
prior to his discharge. The accrual suspension rule “is
strictly and narrowly applied” and requires Mr. Malcolm
to “show that defendant has concealed its acts with the
result that plaintiff was unaware of their existence
or . . . that its injury was ‘inherently unknowable’ at the
accrual date.” Welcker v. United States, 752 F.2d 1577,
1580 (Fed. Cir. 1985) (quoting Japanese War Notes
Claimants Ass’n v. United States, 373 F.2d 356, 358–59
(Ct. Cl. 1967). Although Mr. Malcolm now argues that he
was unaware of his mental problems, he alleged in his
amended complaint that he was actually aware of his
mental problems prior to his discharge. Supp. Appx. 347.
Therefore, his claim for back pay is time-barred.
The Court of Federal Claims also correctly determined
that it lacks jurisdiction to review Mr. Malcolm’s claim for
disability retirement pay. “[T]he Court of Federal Claims
has no jurisdiction over disability retirement claims until
a military board evaluates a service member’s entitlement
to such retirement in the first instance.” Chambers v.
United States, 417 F.3d 1218, 1225 (Fed. Cir. 2005).
Here, Mr. Malcolm did not present any Navy board with a
disability claim prior to the trial court’s decision. Alt-
hough Mr. Malcolm argues that he applied to the BCNR
for disability benefits, he did not submit an application to
the BCNR seeking “medical disability pay” until six days
after the Court of Federal Claims dismissed his case.
Supp. Appx. 373. The BCNR has not yet issued a decision
in response to that application. Since Mr. Malcolm’s
claim has not been decided by the BCNR, the Court of
MALCOLM v. UNITED STATES 5
Federal Claims was correct in determining that it lacks
jurisdiction because the claim is not ripe.
Finally, the Court of Federal Claims lacks jurisdiction
over Mr. Malcolm’s claim for equitable relief to change his
discharge status. The court cannot grant equitable relief
unless such relief is “an incident of and collateral to” a
money judgment. 28 U.S.C. § 1491(a)(2); see James v.
Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (holding that
“incident of and collateral to” means that non-monetary
relief must be “tied and subordinate to a money judg-
ment”) (internal quotations omitted). Because Mr. Mal-
colm has not pled a claim over which the Court of Federal
Claims has jurisdiction to grant monetary relief, it has no
jurisdiction to grant equitable relief.
We have considered Mr. Malcolm’s remaining argu-
ments but find them unpersuasive. Because the Court of
Federal Claims properly dismissed the complaint for lack
of jurisdiction, we affirm.
AFFIRMED
No costs.