Carey L. Johnson v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CAREY L. JOHNSON,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2018-1035
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00959-EJD, Senior Judge Edward
J. Damich.
______________________
Decided: February 15, 2018
______________________
CAREY L. J OHNSON, Hercules, CA, pro se.
MOLLIE L ENORE F INNAN, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for defendant-appellee. Also
represented by CHAD A. READLER , ROBERT E. K IRSCHMAN,
J R., STEVEN J. G ILLINGHAM .
______________________

-- 1 of 5 --

JOHNSON v. UNITED STATES 2
Before P ROST , Chief Judge, SCHALL , and CHEN, Circuit
Judges.
P ER CURIAM .
Carey L. Johnson, proceeding pro se, appeals from the
decision of the Court of Federal Claims (Claims Court)
denying his motion for relief from judgment under Rule
60(a) of the Rules of the Court of Federal Claims (RCFC).
Mr. Johnson served in the United States Marine Corps
from June 1995 to December 1997. Johnson v. United
States, No. 15-959C, 2016 WL 6427655, at *1 (Fed. Cl.
Oct. 27, 2016). Because the Claims Court did not err in
denying Mr. Johnson’s Rule 60(a) motion, we affirm.
In 1997, Mr. Johnson was honorably discharged due
to a diagnosis of scoliosis and chronic back pain. Id. Mr.
Johnson’s case was reviewed by a Physical Examination
Board (PEB) that determined that he was entitled to
severance pay corresponding to a 10% disability rating for
his back pain. Id. He accepted these findings and was
discharged with severance pay pursuant to 10 U.S.C.
§ 1212. Id.
In 2011, Mr. Johnson obtained a medical opinion
“stating that [he] suffered from bipolar disorder while in
service.” Johnson, 2016 WL 6427655, at *1. In 2014, Mr.
Johnson filed an application with the Board of Corrections
for Naval Records (BCNR) seeking disability retirement
with a 100% disability rating for his bipolar disorder and
an award of retroactive benefits associated with that
retirement. In 2015, the BCNR denied his application.
Id. Later, the BCNR went on to deny his petition for
reconsideration and his later petition for additional
review. Id. Mr. Johnson in turn filed a complaint in the

-- 2 of 5 --

JOHNSON v. UNITED STATES 3
Claims Court for his requested disability rating and
retirement benefits.1
In 2016, the Claims Court denied Mr. Johnson’s claim
as time-barred under 28 U.S.C. § 2501 because his disa-
bility retirement cause of action had accrued when the
PEB issued its disability rating decision in 1997. Id. at
*3. Thus, the court found that the six-year statute of
limitations in § 2501 had run well before Mr. Johnson
filed his complaint in 2015. Id. Approximately ten
months later, in August 2017, Mr. Johnson filed a motion
for relief from judgment under RCFC Rule 60(a). The
Claims Court considered the motion but found it to be
unpersuasive.
Mr. Johnson timely filed a notice of appeal of the
Claims Court’s rejection of his motion for relief from
judgment.2 We have jurisdiction over his appeal under 28
U.S.C. § 1295(a)(3).
1 Disability retirement awarded by military PEBs
differs from disability compensation awarded by the
Veterans Administration in that “the [military] provides
for disability retirement based on fitness for military
duty, 10 U.S.C. § 1201, while the VA’s disability rating
decision is based on capacity to function in the civilian
world, 38 U.S.C. § 355.” Gossage v. United States, 394 F.
App’x 695, 698 (Fed. Cir. 2010). At the same time, “the
[military’s] disability retirement decision is based on the
service member’s ability to continue service at that time,
10 U.S.C. § 1201, while the VA’s disability rating decision
is based on the service member’s projected earning capaci-
ty in the future, 38 U.S.C. § 355.” Id.
2 The United States argues that Mr. Johnson’s ap-
peal is untimely because it is directed to the original
judgment and because his motion for reconsideration was
untimely. United States Br. 6–8. We disagree. Mr.

-- 3 of 5 --

JOHNSON v. UNITED STATES 4
Like the Claims Court, we are sympathetic to Mr.
Johnson’s bipolar disorder. But also like the Claims
Court, we agree that his claim for disability retirement is
time-barred. Our precedent makes clear that if a service
member receives a disability retirement decision from a
“Retiring Board” (the previously used term for a PEB), his
or her claim for disability retirement accrues at that time.
Chambers v. United States, 417 F.3d 1218, 1225 (Fed. Cir.
2005) (quoting Friedman v. United States, 310 F.2d 381,
396 (Ct. Cl. 1962)). Mr. Johnson received a disability
rating from a PEB in 1997 and his claim for disability
retirement accrued at that time. The six-year statute of
limitations thus expired in 2003. See 28 U.S.C. § 2501.
Mr. Johnson asks us to equitably toll the statute of limita-
tions to allow his suit. Johnson Reply Br. 1. However,
the Claims Court has a jurisdictional statute of limita-
tions that may not be equitably tolled. See John R. Sand
& Gravel Co. v. United States, 552 U.S. 130, 134 (2008);
Johnson, 2016 WL 6427655, at *3.
We have considered all of Mr. Johnson’s other argu-
ments and find them unpersuasive. To the extent that
the Claims Court’s opinion on Mr. Johnson’s Rule 60(a)
motion incorporated any of Mr. Johnson’s other claims,
Johnson’s notice of appeal is directed to the denial of his
motion for relief from judgment, not to the original judg-
ment. See App’x 53. A notice of appeal from an order
disposing of any of the categories of reconsideration
motions set forth in Federal Rule of Appellate Procedure
4(a)(4)(A) is timely if it is filed within 60 days from the
issuance of the order denying that motion. See id. Rule
4(a)(4)(B)(ii); see also Brown v. United States, 80 F. App’x
676, 678 (Fed. Cir. 2003) (“[B]ecause this appeal is limited
to the issue of the propriety of the denial of Mr. Brown’s
Rule 60(b) motion, we cannot review the original judg-
ment.”).

-- 4 of 5 --

JOHNSON v. UNITED STATES 5
such as his claims for back pay and rank reinstatement,
we note that Mr. Johnson’s motion for reconsideration
was limited only to his claim for disability retirement,
App’x 50–52, and that his briefing before this court is
limited to that claim. Johnson Opening Br. 1. For the
foregoing reasons, the order of the Court of Federal
Claims denying Mr. Johnson’s motion for relief from
judgment is
AFFIRMED
COSTS
No costs.

-- 5 of 5 --