NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

04-5103 SALLIE B. HOLLOWAY, Plaintiff-Appellant,

v. UNITED STATES, Defendant-Appellee.

__________________________ DECIDED: May 9, 2005

__________________________

Before SCHALL, Circuit Judge , ARCHER, and PLAGER, Senior Circuit Judges

. SCHALL, Circuit Judge

.

DECISION Sallie B. Holloway appeals fr om the final decision of the United States Court of Federal Claims that dismissed her complaint for lack of jurisdiction on the ground that it was not filed within the six-year limit ations period of 28 U.S.C. § 2501. Holloway v. United States , 60 Fed. Cl. 254 (2004) (“ Final Decision ”). We affirm

.DISCUSSI ON
I. The pertinent facts are not in dispute. During the re levant period of time, Ms. Holloway was a Unit ed States Naval Res e rve Of ficer. She served on active duty as a Reserve Canvasser Recruiter (“CANREC”) unt il she was involuntarily disc harged from active duty on July 1, 1997. At t hat time, she had acc u mulat ed just over fifteen years of active-duty service. Five months prior to her discharge, Ms. Holloway requ ested early retirement under the Temporary Early Reti rement Authority (“TE R A”) program, § 4403, Pub. L. No. 102-484, 106 St at. 2315, 2702 (1992), as am ended by Pub. L. No. 104-106, § 1504(c)(3), 110 Stat. 514 (1996). Under the TERA pr ogram, Reserve officers with the necessary time in active-duty service have t he option of early retirement. On March 24, 1997, the Navy denied Ms. Holloway’s request for early reti rement on the ground that as a CANREC with less than eight een years of ac tive-duty service, she did n o t qualify for TERA. Ms. Hollo way app lie d to the Bo ard for Co rre ction of Na val Record s (“BCNR”) for review of the Navy’s decision. On Oct ober 26, 1999, the BCNR denied her request fo r correction, finding that “the evidence s ubm itted was insufficient to establish th e existence of probable material error or injusti c e.” Final Decis i on , 60 Fed. Cl. at 258. O n March 21, 2000, Ms. Holloway filed a complain t in the United States District Court for the Northern District of Califor nia seeking correction of her records as well as back pay and allowances. The district court dismis sed the c o mplaint f o r lack of jurisdiction, Holloway v

. Danzig , No. C 00-0981 SBA (N. D. Cal. Oc t. 19, 2000), noting that Ms. Holloway had an adequate remedy in the Court of Federal Claims. The Ninth Circuit

04-5103 2affirmed the dismissal on Januar y 31, 2001. Hollo way v. Englan d , 50 Fed. App x . 836 (9th Cir. 2002) (table). On December 3, 2002, Ms. Holloway fil ed a compla in t in t he Court of Federal Claims seeking money damages based upon her allegedly unlawful dis c harge from active duty on J une 1, 1997. At the same time, she moved to suspend proceedings based upon the fact that she had filed a request for en banc review with the Ninth Circuit that was still pending. On Decem ber 13, 2002, the Court of Federal Cla ims judge to whom the case was assigned iss u ed an order in which he notified the parties that under 28 U.S.C. § 1500, th e court was “not permitted to consider law suits that have been filed in other courts .” Ms. Holloway thereupon file d a motion, which the cour t granted, to voluntarily dismiss her complaint without prejudice. On August 4, 2003, Ms. Holloway filed a second complaint in the Court of Federal Claims. In it, she asserted again t he claim presented in t he complaint she had filed on December 3, 2002. The government moved to di smiss the complaint for lack of jurisdiction on the ground that it was untimely

. The Court of Federal Claims granted the government’s motion. Final Dec i sion , 60 Fed. Cl. 254. The c ourt determined that the cause of action for Ms. Holloway’s claim accrued on July 1, 1997, the date she was discharged from acti ve-duty service in th e Navy. Ms. Hollo way’s com p laint was therefore ti me-barred, the cour t ruled, because it was not f iled in the Court of Federa l Claims until August 4, 2003, more than six years after accrual of the statute of limitations. See 28 U.S.C. § 2501. The Court of Federal Claims rejected Ms. Holloway ’s argument that her complaint “merged” with the voluntarily dismissed December 3, 2002 complaint. T he court ex plained that under 28 U.S.C. § 1500, the

04-5103 3Court of Federal Claim s did not have jurisd ic tion over the December 3, 2002 complaint, and, thus, the August 4, 2003 complaint could not “relate back” to the earlier complaint. II. We review the Court of Feder al Claims’ dism issal of Ms . Holloway’s complaint for lack of subject matter jurisdiction de novo. W. Co. of N. Am . v. United Stat es , 323 F.3d 1024, 1029 (Fed. Cir. 2003). We see no error in the decision of the C ourt of Federal Claims. It is undisputed that Ms. H o lloway’s c l aim accrued on Ju ly 1, 1997 when she was discharged from active duty. See Martinez v. United States , 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc) (“A cause of action cognizable in a Tu cker Act suit accrues as soon as all events have occurred that are necessary to enable the plaintiff to bring suit, i.e. , when ‘a ll events hav e occurred to fix the Government’s alleged liability, entit ling the claimant to demand payment and sue here for his money.’” (c itations omitted)). Moreover, the statute of limitations was not tolled when Ms. Holloway pursued administrative remedie s before the BCNR. Se e id. at 1312 (“[I]t is well-settled that the statute of limitations for Tucker Act claims is not tolled by the claimant ’s exercis e of his rights to seek permissive administrative review of his claim.”). On appeal, Ms. Holloway argues that 28 U. S.C. § 2501 should be equitably tolled because s he actively pursued her claim for re lief during the stat ute of limitations period—firs t, by filing suit in district cour t and second, by filing the December 3, 2002 complaint in the Court of Federal Claims. The government argues, and we agree, t hat because Ms. Holloway rais es her equitable tolling argument for the first ti me on appeal, the argument has been waiv ed.

04-5103 4See Sage Prods., Inc. v. Devon Indus., Inc. , 126 F.3d 1420, 1426 (F ed. Cir. 1997). As noted by the Court of Federal Claims, Ms. Holloway’s counsel (different from her counsel o n appeal) rejected application of the doc trine of equitable tolling, re ferring to i t as “totally misplaced.” Fina l Decision , 60 Fed. Cl. at 260 n.12. In any ev ent, there is no merit to Ms. Hollo way’s e q uita ble tolling argument. The Supreme Court has held that the same r ebuttable presumption of equitable tolling applicable to suits against priv ate defendants also applies to suits agains t the United States. Ir win v. Dep’t of Veterans Affairs , 498 U.S. 89, 95-96 (1 990). While equitable tollin g is av aila ble at least in s o me actions against the governm ent, in Unit ed States v. Brockamp , 519 U.S. 347, 350 (1997), the Court re jected applic ation of the doctrine where the statute at issue, mu ch like s e ction 2501 h e re, contai ns explicit exceptions to its basic time limits, wh ich exc eptions do not in clude equitable tolling. 1 We have declined to decide whether equit able tolling applie s with respect to 28 U.S. C. § 2501. Martinez , 333 F.3d at 1318. However, assuming eq uitable tolling were available under section 2501, Ms. Holloway has not made a sufficient showing to invoke the doctrine in this case. Irwin mak e s clear that equitable tolling against the federal gov ernment is available only when t here is a compelli ng justification for delay, such as “ where the claimant h a s actively pursued h i s judicia l re medies b y filin g a d e fective ple ading durin g the statutory period, or w here the complainant has been in du ced or tricked by his adversary's misconduct into allowing the fili ng deadline to pass.” 498 U.S. at 96. Ms.

1 Section 2501 provides that a “petition on the claim of a person under legal disab ility o r beyond the seas at the time t he claim a ccrues may be filed within three years after the disabilit y ceases.” 28 U.S.C. § 2501. 04-5103 5Holloway ’s arguments do not meet this standard. 2 For the foregoing reasons, the fi nal decis ion of the Board is affirmed. Each party shall bear its own costs.

2 We have considered Ms. Hollo way’s other arguments and have found them to be without merit. 04-5103 6