PALACIOS v. USA

Filing 12

ORDER granting 5 Motion to Dismiss - Rule 12(b)(1) Signed by Sr. Judge Robert H. Hodges, Jr. (sjv) Copy to parties.

In the United States Court of Federal Claims
No. 11-259C
Filed: October 7, 2011

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FRANK PALACIOS,

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Plaintiff,

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v.

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THE UNITED STATES OF AMERICA,

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Defendant.

Board for Correction of Naval
Records; RCFC 12(b)(1);
Jurisdictional Effect of Statute of
Limitations 28 U.S.C. § 2501;
Henderson v. Shinseki, 131 S.Ct. 1197
(2011); John R. Sand & Gravel Co.
v. United States, 552 U.S. 130 (2008).

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Michael D.J. Eisenberg, Law Office of Michael D.J. Eisenberg, Washington, D.C., for plaintiff.
Daniel B. Volk, United States Department of Justice, Civil Division, Washington, D.C., for
defendant.
OPINION AND ORDER
HODGES, Judge.
This is a wrongful discharge claim on appeal from the Board for Correction of Naval
Records. Mr. Palacios was discharged in 1995, and he filed his Complaint in this court more than
six years later, in 2011. Rulings of the United States Supreme Court and the Court of Appeals for
the Federal Circuit direct that we dismiss plaintiff’s appeal for lack of subject matter jurisdiction;
the applicable statute of limitations ran on his claim no later than 2001.
BACKGROUND
Mr. Palacios served in the United States Marine Corps from August 1992 until February
1995. He states that he suffered from chronic lower back pain, which resulted in his appearance
before a Military Examination Board and a Physical Evaluation Board. Before a medical discharge
was “completed,” Mr. Palacios was discharged with a designation Other Than Honorable. Plaintiff
claims that the discharge resulted from a “pattern of misconduct” due to his inability to maintain
weight control and military performance due to his chronic pain.

Plaintiff appealed his discharge to the Naval Discharge Review Board in 2002. The Review
Board denied his appeal. Years later, plaintiff sought a personal appearance hearing before the
Review Board, but the Board denied his request in 2009. The Review Board stated in 2009 that the
Board for Correction of Naval Records was the proper avenue for redress where a medical
component was present. Mr. Palacios appealed to the BCNR in 2009,1 asking that his discharge be
upgraded to Medical, Honorable, or General. The BCNR denied his request citing “seriousness of
repetitive misconduct.” Plaintiff appealed to this court in April 2011.
ARGUMENTS
Plaintiff contends that the BCNR’s decision to deny re-characterization of his discharge was
arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. See 5 U.S.C. § 706(2)(A).
The Board for Correction of Naval Records did not consider his mental condition in its ruling,
according to Mr. Palacios. He alleged that some of his erratic behavior could be attributed to
depression related to chronic pain.2
Defendant filed a motion to dismiss for lack of subject matter jurisdiction on the basis that
plaintiff’s Complaint is barred by the six-year statute of limitations. See 28 U.S.C. § 2501. Mr.
Palacios acknowledges that the statute of limitations began to run when he was discharged in 1995,
but he cites a recent Supreme Court decision limiting the impact of statutes of limitation. See
Henderson v. Shinseki, 131 S.Ct. 1197 (2011) (holding that statutes of limitations for court filings
are jurisdictional only where Congress has given a clear indication of intent for the rule to be
jurisdictional).
Plaintiff suggests that his case presents an opportunity for this court to apply an equitable
construction to our statute of limitations. His interpretation of Henderson calls for the court to rule
on the intent of Congress when it enacted the limiting statute. Thus, the six-year limitations period
is not jurisdictional if Congress did not intend that it be jurisdictional, according to Mr. Palacios.
DISCUSSION
A plaintiff in this court bears the burden of proving jurisdiction by a preponderance of the
evidence. See, e.g., Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).

1

Plaintiff argued that the Review Board’s decision to deny him a personal appearance
hearing itself was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. See
5 U.S.C. § 706(2)(A).
2

Another example that plaintiff used to show diminished capacity was his decision to
waive the right to appear before an administrative discharge board. We have not discussed this
assertion because neither party argued the point, and the waiver did not have a bearing on the
controlling issue, the statue of limitations, in any event.
2

For these purposes, we treat factual allegations in the Complaint as true. Henke v. United States, 60
F.3d 795, 797 (Fed. Cir. 1995).
The Court of Federal Claims has jurisdiction of suits against the United States that meet
certain Congressional criteria. See, e.g., Tucker Act, 28 U.S.C. § 1491 (establishing subject matter
jurisdiction of this court). Another criterion is whether plaintiff’s Complaint is filed within six years
after the cause of action accrues. 28 U.S.C. § 2501 (“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.”). A claim for wrongful discharge accrues at the time of discharge.
Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003).
Plaintiff’s contention that case law gives this court the authority to apply an equitable reading
of the statute of limitations in his case depends entirely on his reading of Henderson, 131 S.Ct. 1197.
Mr. Henderson was a Korean War veteran who received a 100% disability rating. His claim for
supplemental benefits was denied by the Board of Veterans’ Appeals. He missed the deadline for
filing a notice of appeal with the Veterans Court by fifteen days. Id. at 1201. The Court held that
a veteran’s failure to file a notice of appeal with the Veterans Court within 120 days after a Board’s
final decision should not be regarded as having jurisdictional consequences. Id. at 1200. The
Supreme Court analyzed a different statute of limitations in Henderson, however.
The Supreme Court reasoned that the 120-day filing deadline in Henderson was a
“quintessential claim-processing rule” that was not jurisdictional in nature; therefore, it could be
equitably tolled. Id. at 1203. The Court explained that whether a rule is jurisdictional depends upon
whether Congress has mandated such a construction by clear indication. Id. (quoting Arbaugh v. Y
& H Corp., 546 U.S. 500, 515-16 (2006)). The Supreme Court’s ruling in Henderson was a general
one, applicable to pleading in federal courts. Its ruling in John R. Sand & Gravel was a specific one,
applicable only to the Court of Federal Claims. John R. Sand & Gravel Co. v. United States, 552
U.S. 130, 135-36 (2008).
Plaintiff’s application of the general interpretive rule of Henderson ignores the Supreme
Court’s ruling applicable specifically to the Court of Federal Claims.3 See John R. Sand, 552 U.S.
at 133-34. The Court ruled that the limitations statute here is jurisdictional and cannot be waived
or tolled. Id. Henderson did not disturb the rule of John R. Sand that this court’s statute of
limitations is jurisdictional.

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The Court explained in Henderson that where the Court’s interpretation over many years
has been to treat a rule as jurisdictional, it is presumed that Congress intended to follow that
course. The Court cited its ruling on § 2501 from John R. Sand as an example of such a longstanding interpretation. Henderson, 131 S.Ct. at 1203 (citing John R. Sand, 552 U.S. at 133-34);
see also San Carlos Apache Tribe v. United States, 639 F.3d 1346, 1349 (Fed. Cir. 2011)
(recognizing after Henderson was issued that section 2501 is jurisdictional as applied to this
court).
3

Plaintiff urges us to transfer his case to the District of Columbia District Court if we are
concerned about jurisdiction. Federal courts must transfer cases in such circumstances if the
following conditions are met: (1) The transferring court lacks jurisdiction; (2) transfer is in the
interest of justice; and (3) the action could have been brought in the transferee court when it was
filed in the transferring court. 28 U.S.C. § 1631. All conditions must be met to authorize transfer
in federal courts.
The transferring court here does not have jurisdiction, but a district court would lack
jurisdiction as well. The district court’s jurisdiction would arise from the Administrative Procedure
Act, but that Act does not apply where plaintiff had an adequate remedy in this court. See Martinez,
333 F.3d at 1320 (ruling that adequate remedy in the Court of Federal Claims for plaintiff’s
allegations voids APA jurisdiction in district courts). Given that a transfer in such circumstances
would be futile, we cannot certify that it would serve the interest of justice.
CONCLUSION
This court’s jurisdiction to hear a claim of wrongful discharge terminates six years after the
cause of action accrues. Plaintiff’s claim accrued in 1995, when he was discharged. He filed a
Complaint more than fifteen years later. The statute of limitations applicable to lawsuits against the
United States is jurisdictional.
The Supreme Court’s ruling in Henderson does not change the law of John R. Sand. The
Court in John R. Sand interpreted a statute that applies exclusively to the Court of Federal Claims,
while the Henderson holding has a general application in the federal system. Because plaintiff did
not file within six years after his claim accrued, the Complaint must be dismissed for lack of
jurisdiction.
Defendant’s motion pursuant to RCFC 12(b)(1) is GRANTED. The Clerk of Court will
dismiss plaintiff’s Complaint for lack of jurisdiction. No costs.

s/Robert H. Hodges, Jr.
Robert H. Hodges, Jr.
Judge

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