Opinion
2011-5130
01-13-2012
WAYNE TATUM, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
NOTE: This order is nonprecedential.
Appeal from the United States Court of Federal Claims in case no. 10-CV-510, Judge Mary Ellen Coster Williams.
ON MOTION
Before NEWMAN, LINN, and REYNA, Circuit Judges. PER CURIAM.
ORDER
The United States moves to summarily affirm the United States Court of Federal Claims' June 27, 2011 order dismissing Wayne Tatum's complaint for lack of jurisdiction.
Tatum served in the United States Marine Corps from November 3, 1970, until his discharge on December 2, 1993. On August 3, 2010, Tatum filed a complaint in the Court of Federal Claims seeking correction of his military records as well as a promotion, back pay, and military benefits.
The Court of Federal Claims dismissed the suit, finding Tatum's claims time-barred. Specifically, the court found that Tatum filed his complaint outside the six year statue of limitations period which began to accrue at the time of his military discharge on December 2, 1993. Tatum appealed to this court.
Summary affirmance of a "is appropriate, inter alia, when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists." Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir. 1994). In the present case, it is clear that summary affirmance is warranted.
The Court of Federal Claims correctly determined that Tatum's complaint was time-barred. In Martinez v. United States, 333 F.3d 1295, 1310 (Fed. Cir. 2003), this court held that a plaintiffs cause of action challenging a military discharge and seeking related back pay begins to accrue on the date of the plaintiff's discharge. Because Tatum did not bring his complaint within six years of his discharge in December of 1993, the Court of Federal Claims correctly determined it lacked jurisdiction over the complaint. See John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008) (concluding that the six-year statue of limitations is jurisdictional and cannot be waived.)
Accordingly,
IT IS ORDERED THAT:
(1) The motion for summary affirmance is granted. The Court of Federal Claims' judgment is affirmed.
(2) Each side shall bear its own costs.
FOR THE COURT
_______________
Jan Horbaly
Clerk
cc: Wayne Tatum
Jessica R. Toplin, Esq.
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