NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit
2008-5088 EUGENE C. SMALLS, Plaintiff-Appellant,

v. UNITED STATES, Defendant-Appellee.
Eugene C. Smalls , of Largo, Florida, pro se. Joseph A. Pixley , Trial Attorney, Commercial Liti gation Branch, Civil Division, United States Department of Justice, of Washington, DC, for defendant-appellee. With him on the brief were Gregory G. Katsas , Assistant Attorney General, Jeanne E. Davidson , Director, and Kirk T. Manhardt , Assistant Director. Appealed from: United States Court of Federal Claims Judge Lynn J. BushNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-5088

EUGENE C. SMALLS, Plaintiff-Appellant,

v. UNITED STATES, Defendant-Appellee. Appeal from the Unit ed States Court of Federal Claims in Case No. 07-715 C, Judge Lynn J. Bush.

____________________________

DECIDED: November 10, 2008

____________________________ Before MAYER, LOURIE, and GAJARSA, Circuit Judges

. PER CURIAM. DECISION Eugene C. Smalls appeals fr om the decision of the United States Court of Federal Claims dismissing his amended complaint as barred by the stat ute of limitations and, in the alternative, dismissing t he amended complaint under the doctrine of res judicata

. Smalls v. United States , No. 07-715 C (Fed. Cl. June 6, 2008). Because Smalls has not demonstrated t hat the court committed legal error in its decision, we affirm

.BACKGROUND Smalls began serving in the United States Marine Corps on active duty on June 28, 1978. Smalls claims that, prior to ent ering the Marine Corps, he was not suffering from any mental or physical pr oblems. In fact, his entrance medical report indicates that he had no preexisting mental or physical c ondition. During his service, he was diagnosed with bilateral pes valgo planus and ch ronic plantar fasciitis, and the Marine Corps medical board accordingly declared hi m unfit for duty. Smalls was honorably discharged on December 4, 1980 fo r “physical disability without service pay as existing prior to service and not aggravated by service . . . .” Following his discharge, between 1986 and 1992, Smalls made several requests to the Board for Correction of Naval Records (“Board”) to correct his military records. Smalls requested that his records reflect t hat he retired because of a physical disability that occurred during his service in the Mari ne Corps and that he was entitled to disability retirement benefits. The Board denied Smalls ’ requests, first on June 26, 1986 and, in a final decision, on November 13, 1992. Smalls appealed the Board’s decisions to the Secretary of the Navy, w ho affirmed the decisions on April 11, 1997 and again on January 5, 1998. On May 20, 2005, Smalls requested reconsideration by the Board, submitting new evidence. The executive di rector of the Board denied his request on June 15, 2005 because the new evi dence did not warrant reconsideration as it was not material. Smalls filed numer ous other claims before the B oard, all requesting the same correction of his military records, and all were denied by the Board’s executive director. Meanwhile, Smalls also pursued his clai m in two other district court actions before his filing in the Court of Federal Claim s that led to this appea l. As outlined in

2008-5088 -2-detail in the court’s opinion, Smalls first fil ed suit in the District of Hawaii on November 12, 1998, seeking review of the Board’s refusa l to correct his military records. After a complicated appellate process via the Ninth Circuit Court of Ap peals, that case ultimately arrived at this court, and we di rected the Hawaii court to dismiss Smalls’ amended complaint for lack of jurisdiction as barred by the statut e of limitations. Smalls v. United States , 87 Fed. Appx. 167 (Fed. Cir. 2004). We held that Smalls’ claim was time-barred because, under Martinez v. United States , 333 F.3d 1295 (Fed. Cir. 2003) ( en banc ), the six-year statute of limitations in a militar y pay action for back pay, provided in 28 U.S.C. § 2501, began to run at the time of Smalls’ discharge from service, not on the date of the final decision of the Board. We thus held that Smalls’ claim accrued on December 4, 1980, and he did not bring suit in t he District of Hawaii until November 12, 1998, almo st eighteen years later. Smalls also filed a complaint in the Unit ed States District Court for the District of Columbia on December 22, 2003, alleging the sa me claim. The dist rict court dismissed the complaint on the ground that res judicata barred Smalls’ claim. The Court of Appeals for the District of Columbia Circuit affirmed the district court’s dismissal. Smalls eventually filed suit in the Cour t of Federal Claims on October 4, 2007, asserting new evidence and asking the court to compel the Board to reconsider his application for correction of his military reco rds. The government moved to dismiss based on lack of jurisdiction, arguing that Smalls’ claim wa s barred under the statute of limitations, and based on res judicata . The court dismissed Smalls’ amended complaint as barred by the statute of limitations and, in the alter native, under the doctrine of res judicata

.

2008-5088 -3-Smalls timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). DISCUSSION On appeal, Smalls makes the same argum ents that he made bef ore the Court of Federal Claims. He essentia lly argues that, in his May 2005 motion for reconsideration, he submitted new and material evidence that should have restarted the statute of limitations on his claim. Alter natively, Smalls argues that t he executive director’s denial of his application for correction is a new final agency action subject to judicial review. Smalls also argues that the executive director is not authorized to make decisions that are reserved for a three-member panel of t he Board. Finally, Smalls argues that res judicata cannot bar his claim because it was never decided on the merits. The government argues that Smalls’ claim is time-barred because it accrued on November 13, 1992, when the B oard issued its final decision, and Smalls did not file this suit until November 2007, fifteen years later. The government adds that the sixyear statute of limitations is not subject to equitable to lling and cannot be restarted based on the newly-submitted evidence because Smalls waited too long to submit the alleged new evidence. Further , the government argues that Smalls’ claims are barred by res judicata for the reasons articulated by the trial court. The government also argues that the Court of Feder al Claims lacked subject matter jurisdiction to consider any of Smalls’ constitutional claims or cl aims under the Administrative Procedure Act. We review de novo a dismissal by the Court of Federal Claims for lack of jurisdiction. Wilson v. United States , 405 F.3d 1002, 1008 (Fed. Cir. 2005). A six-year statute of limitations exists for claims against the government br ought in the Court of

2008-5088 -4-Federal Claims. 28 U.S.C. § 2501 (2000). That limit ation is a jurisdictional requirement that is not subject to equi table tolling or waiver. Hopland Band of Pomo Indians v. United States , 855 F.2d 1573, 1576-77 (Fed. Cir. 1988); John R. Sand & Gravel Co. v. United States , 128 S.Ct. 750 (2008) (affirming that Section 2501 is jurisdictional in nature). A disability retirement claim under 10 U. S.C. § 1201 accrues, and the statute of limitations begins to run, w hen “an appropriate milit ary board either finally denies such a claim or refuses to hear it.” Chambers v. United States , 417 F.3d 1218, 1224 (Fed. Cir. 2005) (citation omitted). 1 A petition for reconsiderati on by the Board does not restart the statute of limitations unless there is a showing of new evidence or changed circumstances. Interstate Commerce Comm’n v. Bhd. of Locomotive Eng’rs , 482 U.S. 270, 278-79 (1986). However, to restart t he statute of limitations, any motion for reconsideration must be m ade within a reasonable time. Van Allen v. United States , 236 Fed. Appx. 612, 614-15 & n.2 (Fed. Cir . 2007) (agreeing with Court of Federal Claims that a two-year delay in petitioning for reconsideration by the Board “clearly exceeds the short or reas onable period which serves to deprive an administrative decision of finality for statute of limitations purposes”) (citing Chambers , 417 F.3d at 1226; Real v. United States , 906 F.2d 1557, 1561-63 (Fed. Cir. 1990); Dayley v. United States , 169 Ct. Cl. 305, 309 (1965)); see Cooley v. United States , 324 F.3d 1297, 1305

1 Although we held in Sma lls’ Hawaii appeal that, under Martinez , 333 F.3d 1295, Smalls’ action for back pay accrued at the time of his discharge from service, our later decision in Chambers requires us to consider Smalls’ claim as a disability retirement claim, rather than an action for back pay. Either way, Smalls loses because his complaint in the Court of Federal Claims was filed much too late. 2008-5088 -5-2008-5088 -6- (Fed. Cir. 2003) (“Reconsideration of an agency’s decision must arise within a reasonable period of time . . . .”). We agree with the government that the Court of Federal Claims lacked jurisdiction over this case because Smalls’ cl aim was barred by the six-year statute of limitations. The statute cannot be tolled, and it was not rest arted by Smalls’ submission of new evidence when he filed for reconsideration. Smalls’ claim for correction of his m ilitary records accrued in 1992, when the Board finally denied his application. He filed suit in the Court of Federal Claims in 2007, long past the expiration of the statute. The fact that he was pursuing other avenues of appeal does not change that fact. Moreover, his request for reconsideration by the Board was also long past the point of reas onableness and it therefore did not restart the six-year time period for filing suit in the C ourt of Federal Claims. Because we hold that the Court of Federal Claims lacked jurisdiction, we need not decide whether Smalls’ claims are also barred by res judicata

. Accordingly, we affirm the decision of the Court of Federal Claims.