Jacqueline Smylie Herbst v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JACQUELINE SMYLIE HERBST,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-2495
______________________
Appeal from the United States Court of Federal
Claims in No. 1:16-cv-00139-TCW, Judge Thomas C.
Wheeler.
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Decided: December 9, 2016
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J ACQUELINE SMYLIE H ERBST , Tularosa, NM, pro se.
J OSHUA E. K URLAND, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for defendant-appellee. Also represented
by BENJAMIN C. M IZER, ROBERT E. K IRSCHMAN, J R.,
CLAUDIA BURKE.
______________________

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HERBST v. US 2
Before P ROST , Chief Judge, L OURIE and MOORE, Cir-
cuit Judges.
P ER CURIAM .
Jacqueline Smylie Herbst appeals a decision from the
United States Court of Federal Claims (“Claims Court”)
dismissing her complaint as time barred. We affirm.
BACKGROUND
Ms. Smylie Herbst served as a nurse in the United
States Public Health Service Commissioned Corps
(“USPHS”) from 1986 to 1989. In 1989, she transferred to
the Army Nurse Corps, where she served until 1997. In
1997, she transferred back to the USPHS and was sta-
tioned at the Fort Yuma Service Unit of the Indian Health
Service (“IHS”) in Arizona. On November 4, 1999, the
IHS requested that Ms. Smylie Herbst be involuntarily
separated for “failure to demonstrate the performance,
conduct, dedication to duty or professional attitude, and
attributes of an officer in the Uniformed Service.”
J.A. 171. Ms. Smylie Herbst’s termination became final
on December 31, 1999. J.A. 189. After her termination,
she filed a request for reinstatement with the Board for
Correction of Commissioned Corps Records. Her request
for reinstatement was ultimately denied by the Deputy
Assistant Secretary of the Department of Health & Hu-
man Services in December 2002.
In March 2003, Ms. Smylie Herbst was recalled by the
Army and stationed at Fort Riley, where she served until
June 2004. She then served in the Army reserve until
2009, where her service included postings in Germany
and the Republic of Georgia. Ms. Smylie Herbst was
honorably discharged from the Army in 2009, having
attained the rank of Major.

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HERBST v. US 3
Ms. Smylie Herbst contends her 1999 termination
from the USPHS was in retaliation for filing a complaint
against the Fort Yuma Service Unit with the Texas State
Board of Nurse Examiners (“Texas State Board”). A few
months before her 1999 termination, Ms. Smylie Herbst
sent a letter to the Texas State Board raising allegations
that, among other things, nurses at Fort Yuma effectively
served as doctors by diagnosing patients and prescribing
medicine. J.A. 190. Ms. Smylie Herbst filed a complaint
in the Claims Court in January 2016, requesting back pay
and credit for government service for the three-year
period between her termination from the USPHS and the
date she was recalled to active duty by the Army. The
government moved to dismiss, arguing her complaint was
time-barred under 28 U.S.C. § 2501. The Claims Court
granted the motion, holding that Ms. Smylie Herbst failed
to bring suit within six years after her claim first accrued.
Ms. Smylie Herbst appeals. We have jurisdiction pursu-
ant to 28 U.S.C. § 1295(a)(3).
D ISCUSSION
The Claims Court lacks jurisdiction to hear claims
“unless the petition thereon is filed within six years after
such claim first accrues.” 28 U.S.C. § 2501. A claim
arises “when all the events have occurred which fix the
liability of the Government and entitle the claimant to
institute an action.” FloorPro, Inc. v. United States, 680
F.3d 1377, 1381 (Fed. Cir. 2012). In an action seeking
back pay, a claim accrues “all at once at the time of dis-
charge.” Martinez v. United States, 333 F.3d 1295, 1303
(Fed. Cir. 2003); see id. at 1314 (“[W]e have consistently
held that the limitations period is established by the date
of accrual, which is the date on which the service member
was denied the pay to which he claims entitlement.”).
The six-year statute of limitations cannot be waived by

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HERBST v. US 4
the Claims Court or the parties. Alder Terrace, Inc. v.
United States, 161 F.3d 1372, 1376–77 (Fed. Cir. 1998).
Whether the Claims Court possesses jurisdiction over a
claim is a question of law we review de novo. FloorPro,
680 F.3d at 1381.
Ms. Smylie Herbst’s claim accrued on December 31,
1999, the day she was terminated from the USPHS. See
Martinez, 333 F.3d at 1314. She did not file her com-
plaint in the Claims Court until January 2016, sixteen
years later. This falls outside the Claims Court’s six-year
jurisdictional window. See FloorPro, 680 F.3d at 1381.
Even if the statute of limitations did not accrue until her
request for reinstatement was denied by the Deputy
Assistant Secretary of the Department of Health & Hu-
man Services, her claim is still untimely because that
denial occurred in December 2002.
While we agree with the Claims Court that Ms. Smy-
lie Herbst “presented an arguably sympathetic case for
unjust treatment during her time with the USPHS,” her
claim is barred by the statute of limitations. See J.A. 5.
Therefore, the Claims Court lacked jurisdiction to hear it
and properly granted the government’s motion to dismiss.
CONCLUSION
The order from the United States Court of Federal
Claims is affirmed.
AFFIRMED
COSTS
No costs.

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