RICKS v. USA

Filing 9

Order of Dismissal granting 6 Motion to Dismiss - Rule 12(b)(1) and (6). The Clerk is directed to enter judgment. Signed by Senior Judge Eric G. Bruggink. (dls) Copy to parties.

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No. l6-363C
(Filed: July 8, 2016)

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VIVIAN E. RICKS,

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FILED
JUL - I 2016
U,S. COURT OF
FEDERAL CLAIMS

Plaintffi

THE UNITED STATES,

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Defendant.
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ORDER

BACKGROUND
Plaintiff, Vivian E. Ricks, who is pro se, filed her complaint on March
21,2016, challenging her 1992 voluntary military discharge, a 2001 decision
denying her application to correct her military records and return her to active
duty, and a denial ofher request to reconsider the 2001 decision regarding the
application to correct her military record. Pending is defendant's motion to
dismiss the complaint for lack of subject matter jurisdiction and for failure to
state a claim upon which relief can be granted pursuant to Rules 12(b)( I ) and
12(bX6) of the Rules of the United States Court of Federal Claims ("RCFC").
Plaintiff did not respond to the motion.

Plaintiff served on active duty in the United States Air Force from
February 18, 1981 until August 15,1992, when she was voluntarily released
from duty. As part ofher voluntary release, she received a special separation
benefit of $29,388.56. In 2001, plaintiff filed an application with the AirForce
Board for Correction of Military Records ("AFBCMR" or "the Board") for
correction ofher military record, contending that "[t]he ratings she received
on several [of her Enlisted Performance Reports ("EPRs")] vr'ere not an
accurate assessment of her performance and accomplishments." Compl' at 8.
Plaintiff also alleged that her record contained a "referral" EPR which is an
EPR that contains a serious "does not meet" assessment in one of the

evaluation standards. The Air Force denied the application, finding that
plaintiffpresented insufficient relevant evidence oferror or injustice and that
there was no evidence of a referral EPR in plaintiff s record.

Plaintiff made subsequent requests to reconsider the denial of her
application for correction ofher record on July 10, 2002, September 8, 2003,
March22,2004, September 9,2004,}'4ay 26,2006, November 26,2006, and
March 12, 2012. These requests were denied by the AFBCMR because
plaintiff had not provided new relevant evidence. \n 2013, she submitted
another application for correction of her military record. The Air Force initially
retumed the application because the request was unclear. However, upon
talking with plaintiff, Air Force personnel determined that her application was
simply a request to reconsider her previous AFBCMR case. The request was
subsequently denied because plaintiffdid not provide any new information or
evidence. She filed an additional request for reconsideration ofher application
on January 14, 2014. This request was also denied on the basis that plaintiff
had not provided any new relevant evidence. The letter denying her request
provided that "absent judicial action, the Air Force considers your AFBCMR
decision final" but that "pursuant to 5 U.S.C. $ 701, et seq. and 28 U.S.C. $
1491, Congress authorizes applicants to pursue final AFBCMR decisions
through the U.S. Court of Claims." Compl. at 5.

Plaintiff s complaint, filed March 21, 2016, provides that she is
"requesting adjustment of the performance report to a higher performance
assessment and rating that. . . would readvise my active duty separation."
Compl. at 2. Thus, we read her complaint as challenging her 1992 voluntary
discharge, the Board's 2001 decision to deny her application to correct her
military record and return her to active duty, and the Board's 2014 denial of
her request to reconsider the 2001 application.
DISCUSSION

In its motion, defendant argues that plaintiff s claims regarding her
1992 discharge and 2001 decision not to retum her to active duty were not
filed within the six-year statute of limitation provided by the Tucker Act. 28
U.S.C. $ 2501 (2012), Defendant further argues that even if plaintiff s claims
had been brought within the appropriate time period, there is no moneymandating basis fbr any of her claims.

We agree that plaintiffls claims regarding her 1992 discharge and 2001
decision not to retum her to active duty are time-barred. Claims over which
this court has jurisdiction are barred if filed more than six years after accrual
of the claim. Id. A claim begins to accrue when "all events have occurred to
fix the Government's alleged liability, entitling the claimant to demand
payment and sue [] for his money." Nager Elec. Co., Inc. v. United States,368
F .2d 841 ,85 1 ( 1966). For a claim challenging a military discharge, the cause
ofaction accrues at the time ofdischarge. Zevy v. United States,83 Fed.Cl. 67,
74 (2008). Thus, plaintiffs claim challenging her 1992 voluntary discharge
began to accrue in 1992 and, as a result. is untimely.r Likewise, her claim
challenging the Air Force's 2001 decision not to return her to active duty
began to accrue at the time of the decision, and is also time-baned. See rd.
To the extent that plaintiff separately challenges the AFBCMR's 2014
decision not to reconsider its earlier denial ofher application, the claim fails
because it is not a claim for money owed to plaintiff. See Murphy v. United
States,993 F .2d 871,837 (Fed. Cir. 1993) ("[T]he Claims Court's authority to
grant equitable reliefsuch as the conection of military records is premised on
the award of monetary relief."). The only monetary relief upon which this

claim is premised relates to plaintiffs challenge of her 1992 voluntary
discharge, which, as we stated above, is time-barred. We are therefore without
jurisdiction over plaintiffs challenge of the Board's 2014 decision not to
reconsider its earlier denial ofher application.

Even if this claim were timely, it is not a claim cognizable in this court.
Claims made pursuant to the Constitution, federal law, or regulations must be
founded upon a money-mandating provision in order for this court to exercise
jurisdiction. See Eastport S.S. Corp. v. United States, 178 Ct. Cl. 599, 605
(1967). The applicable money-mandating provision for plaintiff s challenge
of her 1992 voluntary discharge is the Military Pay Act, 37 U.S.C. $ 204. See
Martinez v. United States, 333 F.3d 1295,1303 (Fed. Cir. 2003). In order to
fit within the scope of the money-mandating status of $ 204, however, a
plaintiff must assert and establish that her separation was involuntary. Metz v.
United States, 446 F.3d 991,998 (2006). Otherwise, the complaint fails to
state a claim upon which relief can be granted. Id. Here, plaintiff has not
asserted that her separation was involuntary.

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CONCLUSION
For the reasons stated above, we grant defendant's motion to dismiss.
The clerk is directed to dismiss the comolaint. No costs.

ERIC G. BRUGGINK
Senior Judge