LEONARD v. USA

Filing 48

UNREPORTED ORDER denying 34 Motion for Reconsideration. Signed by Senior Judge Eric G. Bruggink. [Sent via Certified Mail: 7012 3460 0001 7791 8064](ar) Copy to parties.

ORIGINAL eberal Qrlaints
3Jn tbe Wniteb
Qrourt of
~tates

jf

No. 15-704C
(Filed: May 3, 2017)
NOT FOR PUBLICATION

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MAY -3 2017
U.S. COURT OF
FEDERAL CLAIMS

PATRICIA A. LEONARD,

Plaintiff,
v.

FILED

Motion for Reconsideration; Continuing
Claims Doctrine.

THE UNITED STATES,

Defendant,

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ORDER ON MOTION FOR RECONSIDERATION

This is a military pay claim in which plaintiff, Major Patricia A.
Leonard, USA, Retired, seeks retroactive promotion and disability retirement
benefits. On September 19, 2016, we entered judgment against plaintiff,
concluding that plaintiffs disability rating claim accrued in 1994, well outside
the six-year statute oflimitations, and, in any event, had already been decided
in Leonard v. United States, No. 95-817 (Fed. Cl. Aug. 15, 1996). We also
held that plaintiffs claim for improper denial of promotion to Lieutenant
Colonel was similarly barred by the statute of limitations.
Plaintiff timely filed a motion for reconsideration in which she alleges
procedural error in that the court neglected to give her an opportunity to submit
additional materials to oppose defendant' s motion to dismiss. In addition, she
seeks to advance a new legal theory to counter the running of the limitations
period- the continuing claims doctrine. We asked the government to respond
to the motion for reconsideration and the matter is now ready for resolution.
Oral argument is deemed unnecessary. For the reasons set out below, we deny
the motion. Familiarity with the background facts set out in our earlier opinion
is presumed.

We begin with plaintiffs contention that she was prejudiced by the
court's failure to consider certain additional materials she sought to introduce
prior to the court's ruling on the motion to dismiss. On April 26, 2016,
plaintiff moved, among other things, for permission to add to the
administrative record. The motion attached certain documents. Our order of
August 1, 2016 granted plaintiffs motion to supplement the administrative
record, but, as plaintiffpoints out, set no deadline for submitting any additional
materials. Plaintiff did not submit anything in addition to the materials
attached to her motion, and the court entered its final order of dismissal on
September 19, 2016. As part of the court's review of the motion for
reconsideration, however, we permitted plaintiff to file the materials she says
were not before the court, which she did on two occasions, and we have taken
them into account in ruling on the present motion.
As defendant points out, most of the documents recently submitted by
plaintiff were already before the court. None of the rest, however, alter in any
way the dates on which her causes of action began to accrue. Indeed nothing
in her motion for reconsideration attempts to explain how our factual analysis
was incorrect. The entirety of the argument of the motion for reconsideration
addresses the continuing claims doctrine.
Setting aside, for argument's sake, the untimeliness of plaintiffs
assertion of the continuing claims doctrine, we find that it is legally incorrect.
A formal Physical Evaluation Board ("PEB") considered plaintiffs
claim for disability retirement and concluded that her conditions developed
naturally and were not related to her military service. As a result, in March
1994, it denied plaintiff the disability retirement that an earlier PEB had
granted her. The Physical Disability Agency affirmed the second PEB decision
in August 1994, and the Secretary of the Army approved the Physical
Disability Agency's determination in May 1995. Plaintiff was released from
active duty on June 26, 1995 at the rank of Major.
We agree with the government that all of plaintiffs claims originate
from a single event-plaintiffs discharge, at the rank of Major, without a
disability retirement. This single event triggered both of plaintiffs claims.
Subsequent non-payment of retirement benefits calculated at the rank of
Lieutenant Colonel did not, even under the case law upon which plaintiff
relies, create new causes of action.
Plaintiff places principal reliance on Friedman v. United States, 310
F .2d 3 81 ( 1962), where the Court of Claims explained the continuing claims

doctrine:
Over the years, the court's pay cases (military and civilian)
concerned with the issue of limitations have often applied the
so-called 'continuing claim' theory, i.e., periodic pay claims
arising more than six years prior to suit are barred, but not those
arising within the six-year span even though the administrative
refusal to pay the sum claimed may have occurred, or the statute
on which the claim is grounded may have been enacted, prior to
six years. These were suits for additional pay at a higher grade,
or claiming greater compensation (under a statute or regulation)
than the claimant was receiving, or seeking special statutory
increments or allowances, etc. The important characteristics of
all these cases were: (a) Congress had not entrusted an
administrative officer or tribunal with the determination of the
claimant's eligibility for the particular pay he sought; (b) the
cases turned on pure issues of law or on specific issues of fact
which the court was to decide for itself (i.e., Congress had not
established any administrative tribunal to decide either the
factual or the legal questions); and (c) in general the cases called
upon the court to resolve sharp and narrow factual issues not
demanding judicial evaluation of broad concepts such as
'disability' (concepts which involve the weighing of numerous
factors and considerations as well as the exercise of expertise
and discretion).
Id. at 384-85.
In the present case, however, an administrative official or tribunal has
been entrusted with making the determination of whether to dismiss plaintiff
for disability and whether to deny her claim of eligibility for retirement for a
service-related injury. Moreover, that detennination was based on facts unique
to plaintiff, which the army, not the court is in the best position to assess. I.e.,
resolution of her claim did not turn on pure questions of law, such as, for
example, a class of individuals' entitlement to overtime pay. Finally, her case
does involve judicial review of broad concepts of disability, decided in the first
instance by the army. The decision to discharge plaintiff while she was still
a major, in other words, is the type of fact-bound, discretion-limited question
which needs to be resolved within the limitations period and not left for
resolution at some indefinite time in the future.
Plaintiffs motion for reconsideration is denied.

Senior Judge