NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

CALVIN JOPPY, AKA KEVIN JOPPY,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2016-1329

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:15-cv-00536-EDK, Judge Elaine Kaplan.

______________________ 

Decided: May 10, 2016 

______________________ 

 CALVIN JOPPY, Milton, FL, pro se.

MELISSA M. DEVINE, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for defendant-appellee. Also represented 

by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., 

DOUGLAS K. MICKLE. 

______________________ 

Before PROST, Chief Judge, LINN, and TARANTO, Circuit 

Judges.
2 JOPPY v. US

PER CURIAM. 

Calvin Joppy alleges that the Navy unlawfully separated him from his military service in 1981. After the 

Board for Correction of Naval Records twice denied his 

challenge to his 1981 discharge, Mr. Joppy filed suit in 

the Court of Federal Claims. That court dismissed his 

claim as barred by the statute of limitations. We affirm.

BACKGROUND

In 1980, the Navy imposed non-judicial punishments 

on Mr. Joppy for several assaults (and disobedience of a 

lawful order). In 1981, a Navy psychiatrist diagnosed him 

as having an explosive personality disorder. As a result, 

the Navy dropped pending court-martial charges and, 

finding him unsuitable for further military service, terminated his service on March 13, 1981. 

More than twenty-one years later, Mr. Joppy filed a 

claim with the Board for Correction of Naval Records, 

challenging his 1981 discharge as resting on a misdiagnosis. Specifically, he argued that what the military had 

called a personality disorder was in fact post-traumatic 

stress disorder, brought on by his witnessing of the murder of a shipmate. He asked that his administrative 

separation be changed to a medical discharge, which, he 

contended, would entitle him to disability pay and retirement benefits. The Board denied Mr. Joppy’s request in 

2003. The Board likewise denied a second application, 

filed in 2014, in which Mr. Joppy argued that the Navy 

had implemented a policy by which it produced false 

evaluations in order to discharge servicemen like him who 

suffered from psychological disorders. 

Joppy then filed a complaint in the Court of Federal 

Claims on May 27, 2015, invoking that court’s jurisdiction 

under the Tucker Act, 28 U.S.C. § 1491(a). Alleging that 

he was improperly discharged, he sought backpay as well 

as disability retirement benefits. The Court of Federal 
JOPPY v. US 3

Claims dismissed the complaint for lack of jurisdiction on 

the ground that it was out of time under the applicable 

six-year statute of limitations, 28 U.S.C. § 2501. The 

court later denied reconsideration. 

Mr. Joppy appeals to this court. We have jurisdiction 

under 28 U.S.C. § 1295(a)(3). We review the jurisdictional dismissal de novo. Bank of Guam v. United States, 578 

F.3d 1318, 1325 (Fed. Cir. 2009).

DISCUSSION

The Court of Federal Claims’ jurisdiction here rests 

on the Tucker Act, and the Supreme Court has confirmed 

that, for a suit to come within the jurisdiction granted by 

that Act, the suit must be filed within the six years permitted by the statute of limitations, 28 U.S.C. § 2501. 

John R. Sand & Gravel Co. v. United States, 552 U.S. 

130, 133–34, 138–39 (2008). Here, the Court of Federal 

Claims correctly concluded that both Mr. Joppy’s claim for 

backpay (based on error in the 1981 discharge) and his 

claim for record correction and benefits (based on error in 

the reason for the 1981 discharge) were filed out of time. 

Both claims accrued more than six years before the 2015 

suit.

We have held that a claim for backpay for unlawful 

discharge, made under 37 U.S.C. § 204, accrues at the 

time of the service-member’s discharge. Martinez v. 

United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003). We 

have also clarified that the claim accrues all at once; there 

is no accrual of a new claim each pay period after the 

(allegedly wrongful) discharge. Id. at 1303–04. Here, Mr. 

Joppy’s claim accrued when he was discharged in 1981. 

His complaint challenging the discharge, filed in 2015, 

was therefore untimely.

Mr. Joppy’s claim for disability retirement benefits is 

also untimely, but for a different reason. We have held 

that such a claim, made under 10 U.S.C. § 1201, accrues 
4 JOPPY v. US

when the appropriate military board first denies a claim

for disability benefits. Chambers v. United States, 417 

F.3d 1218, 1224 (Fed. Cir. 2005) (“we cannot acquire 

jurisdiction of such a claim until after the Board and the 

Secretary have acted” (internal quotation marks omitted)). The accrual of the claim for such benefits occurs 

upon “[t]he decision by the first statutorily authorized 

board that hears or refuses to hear the claim.” Id. (emphasis added). Once that occurs, the jurisdictional barrier 

to suing on the claim dissolves, and nothing prevents the 

filing of such a suit; accordingly, accrual does not change 

upon the filing of a later second request for such benefits. 

Here, the Board for Correction of Naval Records first 

denied Mr. Joppy’s request in 2003. His 2015 suit in the 

Court of Federal Claims was therefore out of time under 

the six-year statute of limitations. 

Our analysis is not changed by Mr. Joppy’s invocation 

of the concept of constructive service for his claim for 

backpay based on an allegedly wrongful discharge. That 

concept is used in timely brought suits to describe why 

plaintiffs who prove improper termination may, in specified circumstances, recover backpay and benefits during 

the time they would have been employed had the improper termination not occurred: they are treated as employed 

during a period they actually were not. See Barnick v. 

United States, 591 F.3d 1372, 1379 (Fed. Cir. 2010); 

Christian v. United States, 337 F.3d 1338, 1347 (Fed. Cir. 

2003); Wright v. United States, 81 Fed. Cl. 369, 375 

(2008). The Court of Federal Claims correctly held that 

the concept does not alter the rules for the timeliness of 

the suit starting from an allegedly wrongful discharge.

The Court of Federal Claims was also correct in rejecting Mr. Joppy’s invocation of equitable tolling of the 

starting of the six-year period allowed for the filing of the 

suit. At a minimum, the jurisdictional character of this 

statute of limitations makes equitable tolling unavailable. 

See FloorPro, Inc. v. United States, 680 F.3d 1377, 1382 
JOPPY v. US 5

(Fed. Cir. 2012) (“Because section 2501’s time limit is 

jurisdictional, the six-year limitations period cannot be

extended even in cases where such an extension might be 

justified on equitable grounds.”). 

Finally, the Court of Federal Claims correctly rejected 

Mr. Joppy’s argument that the accrual of his claim should 

be suspended because the government acted in a fraudulent manner by misdiagnosing him with a personality 

disorder rather than with post-traumatic stress disorder 

as a way to terminate him from the military. For a suspension of the type asserted to be warranted, a plaintiff

“must either show that defendant has concealed its acts 

with the result that plaintiff was unaware of their existence or it must show that its injury was ‘inherently unknowable’ at the accrual date.” Martinez, 333 F.3d at

1319 (quoting Welcker v. United States, 752 F.2d 1577, 

1580 (Fed Cir. 1985)). Here, Mr. Joppy was fully aware 

that he was being separated from the service because of 

an alleged personality disorder: he was informed of the 

discharge in writing at least twice. Neither the act (discharge) nor the injury (loss of pay and potential benefits) 

was concealed from nor unknown to Mr. Joppy (let alone 

inherently unknowable). He also knew the stated basis of 

the discharge (the personality-disorder diagnosis), and he

could have challenged its soundness: indeed, he consulted 

a lawyer at the time, and he says in his petition to us 

that, at the time, he disagreed with the decision to discharge him, believing it was racially motivated, Pet. Br. 

12–13. These facts do not fit within the “‘strictly and 

narrowly applied’” doctrine of “‘accrual suspension.’” 

Martinez, 333 F.3d at 1319. 

CONCLUSION

The judgment of the Court of Federal Claims, dismissing the complaint as time-barred, is affirmed. 

AFFIRMED