Wayne Tatum v. United States

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

WAYNE TATUM,
Plaintiff-Appellant,
V.
UNITED STATES,
Defendant-Appellee.

2011-5130

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.

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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, find-
ing 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 plaintiff's 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:

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(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 13 2012

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: Wayne Tatum
Jessica R. Toplin, Esq.
$20

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
JAN 13 2012
JAN HORBALY
CLERK