Levadi v. United States , 146 F. Supp. 455 ( 1956 )

WHITAKER, Judge.

This is another case involving the proper application of the statute of limitations, 28 U.S.C.A. § 2501, to the claim of an Army officer, who claims that he had been erroneously denied the right to retirement for physical disability and, therefore, to retired pay.

This question has been heretofore considered by the court in several recent cases, to wit: Rosnick v. United States, 129 F.Supp. 958,132 F.Supp. 478, 132 Ct.Cl. 1, and the following three cases, all decided on November 8, 1955; Girault v. United States, 135 F.Supp. 521, 133 Ct.Cl. 135; Duff v. United States, 135 F.Supp. 527, 133 Ct.Cl. 161; Odell v. United States, 135 F.Supp. 539, 134 Ct.Cl. 643; and more recently in Levine v. United States, 137 F.Supp. 955, 133 Ct.Cl. 774, and MacFarlane v. United States, 140 F.Supp. 420, 134 Ct. Cl. 755. In all of these cases it was held that plaintiff’s cause of action accrued when the Secretary of War. approved the action of the Retiring Board denying plaintiff the right of retirement with pay by reason of physical disability, and that it was barred if not brought within six years thereafter.

These cases are determinative of the issue presented in the case at bar, but we have a short further comment to make on the question.

It is of course fundamental that a cause of action accrues at- the moment the alleged wrong is done the plaintiff, and that the statute begins to run at that time. This wrong was done plaintiff, if at all, when his claim to retired pay on account of permanent physical disability was disallowed.

Plaintiff asserted that he was permanently incapacitated for further military service and that he was entitled to be retired for physical disability and to receive the retired pay provided for by law. The Secretary of War replied, you are not permanently disabled and you are not entitled to retired pay and none will be paid to you. At that moment plaintiff’s right of action accrued.

In the case at bar, the Army Retiring Board, before which plaintiff appeared, at first held that plaintiff was permanently incapacitated for active service “because of chronic arthritis of the spine of minimal degree,” and that his incapacity was an incident of his service. The Surgeon General returned the case to the Board, because he said that arthritis of a minimal degree did not incapacitate a person for military service.

Upon reconsideration, the Army Retiring Board persisted in its conclusion that plaintiff was permanently incapacitated, but changed its mind as to the date of inception of the incapacity, and held that the incapacity had existed prior to his army service and, therefore, that it was notan incident of the service.

Quite naturally the Secretary of War disapproved of this finding of the Army Retiring Board. He determined, instead, that plaintiff was qualified for general military duty, but, according to the petition, he stated that plaintiff would not be recalled to active duty. Under this holding plaintiff was not entitled to retired pay and would not be entitled to active duty pay, unless he was later recalled to active duty. If the plaintiff was in fact qualified for general military duty, it was within the discretion of the Secretary to recall him to active duty or not, plaintiff being a reserve officer.

But plaintiff says he was not qualified for active duty and that the ruling of the Secretary of the Army to the contrary was erroneous, and that by reason of this erroneous ruling he was deprived of the retired pay to which he was entitled.

So long as that ruling stood, plaintiff had no right to retired pay, because the statutes vest in the Army Retiring Boards and the Secretary of War the right to determine whether or not an officer is entitled to be retired for physical disability. In order for plaintiff to receive retired pay, that ruling had to be set aside.

The statutes give plaintiff six years within which to do this. If he fails to commence an action to set it aside within that time, he is barred from doing so later. The statutes defining the jurisdiction of this court leave us powerless to set aside that allegedly erroneous ruling, unless plaintiff had instituted an action to do so within the six-year period.

So long as the ruling stands, plaintiff is not entitled to retired pay.

Cases such as this are entirely different from those where a plaintiff’s right is given him by statute, independent of any action of a board or agency. In such case plaintiff can assert his statutory right to all pay accruing to him under the statute within six years prior to the filing of his petition, as this court has frequently held. But not so where his right is dependent upon the action of a board or agency. If he presents his case to a board or agency, and that board or agency denies him the right to which he thinks he is entitled, then he must take action within six years to set aside its action.

So far as we know, there is no case in which this court has ever held to the contrary. We have many times held that where a right is given by statute, independent of the action of a board or agency, suit may be brought at any time for all benefits accruing under the statute within six years; but, where the right asserted is dependent upon favorable action of a board or agency, we have never held that a suit to set aside an allegedly erroneous action of such board or agency may be instituted after the lapse of six years.

Plaintiff's right to retired pay is dependent upon favorable action of the retiring board and the approval of such action by the Secretary of War. That action was taken more than six years before the petition was filed.

Defendant’s motion to dismiss will be granted and plaintiff’s petition will be dismissed.

It is so ordered.

JONES, Chief Judge, and LARA-MORE, Judge, concur.