Schwieger v. United States

In the United States Court of Federal Claims SCOTT SCHWIEGER, Plaintiff, and BRANDON A. PLATERO et al., No. 21-2131 Plaintiff-Intervenors, Filed August 31, 2026 v. THE UNITED STATES, Defendant. James Renne, Renne Law, Arlington, VA, for plaintiff. Mikael Rojas, Outen & Golden LLP, Washington, DC, for plaintiff-intervenors. Joseph Pixley, Civil Division, United States Department of Justice, Washington, DC, for defend- ant. OPINION AND ORDER Granting the government’s motion for partial dismissal, denying Mr. Schwieger’s motion to designate interim class counsel, and denying Mr. Schwieger’s motion to consolidate the case with Platero In August 2019, John Kluge, a military reservist and civilian employee of the federal gov- ernment, sued the U.S. government in the United States District Court for the District of Columbia to recover reservist differential pay under 5 U.S.C. § 5538 (2009) and interest under the Back Pay Act, 5 U.S.C. § 5596. Mr. Kluge’s complaint included allegations that there was a large class of similarly situated plaintiffs. In April 2020, plaintiff Scott Schwieger joined the suit as a second named plaintiff. The district court transferred the case to this court, where it was assigned to Judge Smith. Mr. Kluge later dismissed his complaint with prejudice, leaving Mr. Schwieger as the only remaining plaintiff. 1  Other military reservists who are also civilian employees of the federal government, in- cluding Brandon Platero, filed two other cases in this court. The first was filed on May 6, 2025, soon after the Supreme Court issued a decision in Feliciano v. Department of Transportation, 605 U.S. 38 (2025), which determined that military reservists who are also federal employees are en- titled to reservist differential pay under more circumstances than the government had previously acknowledged. After consolidation of those two cases, I granted those plaintiffs class certification for a class consisting of “[a]ll federal employees who, at any time from May 6, 2019, through the present, were not paid the difference between their federal civilian salary and their military pay during their time spent in active duty.” Platero v. United States, 180 Fed. Cl. 425, 436 (2026). Mr. Schwieger’s case—this case—was then transferred to me with motions pending. I granted the Platero plaintiffs’ motion to intervene in the case. There are now three pending mo- tions in this case: (1) the government moves to dismiss part of Mr. Schwieger’s claim for differ- ential pay—for the period of service from September 2009 to September 2010—as time barred, which Mr. Schwieger opposes; (2) Mr. Schwieger’s counsel requests to be designated as interim class counsel for a period of time from March 11, 2009, to May 5, 2019, which the government and the Platero plaintiffs oppose; and (3) Mr. Schwieger moves to consolidate this case with Plat- ero, which the government opposes. For the 2009-10 mobilization, Mr. Schwieger filed suit outside the statute of limitations and cannot relate his claim back to the initial complaint Mr. Kluge filed to render that count of Mr. Schwieger’s complaint timely. The court will therefore grant the government’s motion for partial dismissal, dismissing Mr. Schwieger’s claim for differential pay for his 2009-10 mobilization. Because Mr. Schwieger’s counsel has not shown that designating him as interim class counsel 2 would reduce confusion and uncertainty, and because he has not demonstrated that he has experi- ence representing class-action plaintiffs, the court will deny Mr. Schwieger’s counsel’s motion to be designated as interim class counsel. The court will also deny Mr. Schwieger’s motion to con- solidate this case with Platero for related reasons. I. Background Mr. Schwieger was a civilian employee of the United States Department of Defense while also a commissioned officer in the United States Army Reserve. ECF No. 129 at 7 [¶21]. Mr. Schwieger was twice called to active duty under 10 U.S.C. § 12301(d), from September 28, 2009, to September 27, 2010, and from August 10, 2018, to September 13, 2019. Id. at 8 [¶24]; id. at 10 [¶32]; ECF No. 138 at 3. He alleges that, for both mobilizations, he was denied the differential pay that he was owed, in violation of 5 U.S.C. § 5538. ECF No. 129 at 8-11 [¶¶25-35]. Mr. Schwieger served two other active-duty tours during the relevant timeframe, one be- tween 2012 and 2013, and another between 2015 and 2016. ECF No. 146-1 at 7; ECF No. 156 at 22:15-16. Those two mobilizations were under different orders not applicable in this case, but the times are relevant for purposes of tolling calculations. See ECF No. 156 at 26:11-15. This case was originally filed, as a putative class action complaint, in D.C. district court as Kluge v. United States, No. 19-2618, on August 29, 2019. ECF No. 1. Mr. Schwieger was not a named or identified plaintiff in the original complaint. On March 31, 2020, Mr. Kluge filed a successful motion to add an additional party (ECF No. 14), and in April 2020, Mr. Kluge filed an amended class action complaint, identifying Mr. Schwieger as an additional plaintiff (ECF No. 15). The district court then dismissed the complaint without prejudice for its lack of clarity (ECF No. 39), and Mr. Kluge and Mr. Schwieger filed a fourth amended complaint and motion to 3 transfer to this court in February 2021 (ECF Nos. 40, 42). The district court transferred the case to this court, and it was assigned to Judge Smith. ECF No. 52. After a series of extensions of time and stays, Judge Smith held a status conference with the parties in October 2023. After the conference, Judge Smith issued an order lifting the then- current stay and granting Mr. Kluge’s “unopposed oral motion to dismiss his claims with preju- dice.” ECF No. 80. Mr. Schwieger then became the lead—and only—plaintiff. Id. The government filed a motion to dismiss Mr. Schwieger’s claim relating to his 2009-10 mobilization for lack of subject-matter jurisdiction, asserting that the claim was time barred. ECF No. 81 at 6. Mr. Schwieger voluntarily withdrew his “older differential pay claim for his deployment from 2009- 10 as well as [his] class claims,” leaving only the claim for his 2018-19 mobilization in the case. ECF No. 99 at 1. Judge Smith dismissed the 2009-10 and class claims without prejudice, mooting the government’s partial motion to dismiss. ECF No. 100 (dismissing “plaintiff’s claims incorpo- rated in Schwieger Count One and the Class Allegations” and determining that the dismissal mooted “defendant’s motion for partial dismissal, given that motion only seeks dismissal of plain- tiff’s now withdrawn 2009-2010 deployment claims”). In April 2025, the Supreme Court decided Feliciano, holding that a “civilian employee called to active duty pursuant to ‘any other provision of law … during a national emergency’ is entitled to differential pay.” 605 U.S. at 55 (quoting 5 U.S.C. § 5538(a)). There has been a declared national emergency at all times since September 11, 2001. See Continuation of the National Emer- gency With Respect to Certain Terrorist Attacks, 90 Fed. Reg. 42695 (Aug. 29, 2025) (renewing, for the twenty-fourth year in a row, Presidential Proclamation No. 7463, which declared a national emergency on September 14, 2001); see Feliciano, 605 U.S. at 1294 (“With the exception of a brief period in the 1970s, one declared national emergency or another has been ongoing in this 4 country for many decades.”). After Feliciano, Mr. Schwieger filed a motion to amend his com- plaint to “reinstate his older claim for differential pay as well as class claims.” ECF No. 111 at 1. Judge Smith granted that motion (ECF No. 128) and Mr. Schwieger filed a fifth amended com- plaint in April 2026 (ECF No. 129). Two weeks later, Mr. Schwieger filed a motion to appoint his counsel as interim class counsel. ECF No. 137. A month later, in May 2026, the government filed a new motion to dismiss the 2009-10 mobilization claim. ECF No. 138. Four days later, the case was transferred to me. ECF No. 141. Meanwhile, in May 2025 and July 2025, two related cases were filed in this court, Platero v. United States (25-782) and Brooks v. United States (25-1245). Both cases arose out of the Su- preme Court’s Feliciano decision, and both brought class action claims on behalf of all federal- employee-reservists who served on active duty alleging that the government violated 5 U.S.C. § 5538 when it failed to pay those individuals their reservist differential pay. Platero, No. 25-782, ECF No. 1 at 2-3 [¶¶7, 9]; Brooks, No. 25-1245, ECF No. 1 at 4-5 [¶¶10, 11]. Those cases were later consolidated (Platero, No. 25-782, ECF No. 18), and the plaintiffs moved to appoint their counsel as interim class counsel. After the court granted that motion (Platero, No. 25-782, ECF No. 33), the plaintiffs then moved to certify the class. In March 2026, this court certified the class. Platero, 180 Fed. Cl. at 436. In May 2026, the Platero plaintiffs moved to intervene in this case, and the court granted that motion. ECF No. 147. As already noted, there are now three pending motions: (1) the government’s motion to dismiss Mr. Schwieger’s claim for the 2009-10 mobilization as time barred; (2) Mr. Schwieger’s counsel’s motion to be designated as interim class counsel for the period of time from March 11, 2009, to May 5, 2019; and (3) Mr. Schwieger’s motion to consolidate this case with Platero. 5 II. Discussion A. Mr. Schwieger’s complaint is untimely with respect to the 2009-10 claims The government moves for partial dismissal, relating to Mr. Schwieger’s 2009-10 mobili- zation, under rule 12(b)(1) of the Rules of the Court of Federal Claims (RCFC). ECF No. 138. The government argues that the court lacks jurisdiction over Mr. Schwieger’s claim for the 2009-10 mobilization because it is time barred. Id. at 8-10. In response, Mr. Schwieger presents at least six arguments, each of which, he argues, would give this court jurisdiction over his 2009-10 claim: equitable tolling (ECF No. 146-1 at 6-7), class-wide tolling (id. at 7-13), the relation back doctrine (id. at 13-14), the accrual suspension doctrine (id. at 15-22), administrative exhaustion (id. at 24), and the continuing claims doctrine (id. at 23-24). See also ECF No. 129 at 6-7 [¶¶18-20]. The jurisdiction of this court is primarily defined by the Tucker Act, which provides the court with jurisdiction over “actions pursuant to contracts with the United States, actions to recover illegal exactions of money by the United States, and actions brought pursuant to money-mandating statutes, regulations, executive orders, or constitutional provisions.” Roth v. United States, 378 F.3d 1371, 1384 (Fed. Cir. 2004); see 28 U.S.C. § 1491(a)(1). The Military Pay Act, 37 U.S.C. § 204, “confers on an officer the right to the pay of the rank he was appointed to up until he is properly separated from the service.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997) (quotation marks omitted). The Military Pay Act thus “provides for suit in [the Court of Federal Claims] when the military, in violation of the Constitution, a statute, or a regulation, has denied military pay.” Antonellis v. United States, 723 F.3d 1328, 1331 (Fed. Cir. 2013) (quotation marks omitted). This court’s jurisdiction includes requests for back pay. Worthington v. United States, 168 F.3d 24, 27 (Fed. Cir. 1999). 6  A statute of limitations restricts this court’s jurisdiction. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 134 (2008) (maintaining the Supreme Court’s longstanding interpre- tation that this court’s statute of limitations is “jurisdictional”). “Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” 28 U.S.C. § 2501. A claim accrues “when all the events which fix the government’s alleged liability have occurred and the plaintiff was or should have been aware of their existence.” San Carlos Apache Tribe v. United States, 639 F.3d 1346, 1350 (Fed. Cir. 2011) (quotation marks omitted). Because section 2501’s statute of limitations is jurisdictional, the Supreme Court has held that there is no equitable tolling under section 2501. John R. Sand & Gravel, 552 U.S. at 136; see Kelly v. United States, 181 F.4th 1377, 1383 (Fed. Cir. 2026) (holding that, because John R. Sand & Gravel addressed section 2501, courts “are bound to follow its direction that § 2501 is jurisdictional and not subject to equitable tolling”). For mili- tary pay claims, “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.” Martinez v. United States, 333 F.3d 1295, 1314 (Fed. Cir. 2003) (en banc). Under RCFC 12(b)(1), “a court must accept as true all undisputed facts asserted in the plaintiff’s complaint and draw all reasonable inferences in favor of the plaintiff.” Trusted Integra- tion, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). If the court determines that it lacks subject-matter jurisdiction, it must dismiss the action. RCFC 12(b)(1), (h)(3); see Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 (1998). The court must dismiss in part if it lacks subject-matter jurisdiction over some of the claims. See Nicely v. United States, 23 F.4th 1364, 1367-68 (Fed. Cir. 2022); McDonald v. United States, 135 F.3d 778, 1998 WL 50945, *3 (Fed. Cir. 1998) (unpublished). 7  1. The Servicemember Civil Relief Act’s tolling provision would require Mr. Schwieger to have filed suit by October 11, 2019 Mr. Schwieger argues that his “statute of limitations period is actually 9 years and 14 days,” not six years, because the Servicemember Civil Relief Act (SCRA), 50 U.S.C. § 3936, tolled the statute of limitations of his claim for “three years and 14 days.” ECF No. 144 at 6 n.3; see also ECF No. 156 at 36:16-25. The SCRA has a tolling provision, which states, “The period of a ser- vicemember’s military service may not be included in computing any period ... for the bringing of any action ... by ... the servicemember.” 50 U.S.C. § 526(a); see also Cronin v. United States, 363 F. App’x 29, 32 (Fed. Cir. 2010); Lynch v. United States, 135 Fed. Cl. 494, 500 & n.5 (2017). “The express terms of the [SCRA] make certain that the tolling of the statute of limitations is uncondi- tional,” and “[t]he only critical factor is military service.” Bickford v. United States, 656 F.2d 636, 639 (1981). Mr. Schwieger argues that his active-duty tours between April 29, 2012, and June 16, 2019 (ECF No. 138 at 9; ECF No. 82-1), tolled the statute of limitations for a total of three years and fourteen days. The government agrees that Mr. Schwieger is entitled to that amount of tolling for his active-duty tours. ECF No. 138 at 9. Any tolling for the 2009-10 active-duty tour need not be computed because that is the first tour for which he is seeking back pay. If the last date of that tour, September 27, 2010, is timely, the whole tour will be timely. Mr. Schwieger’s case was pending when Feliciano was decided, so he is entitled to the benefit of the Feliciano decision for the whole time his case has been pending, plus the full limi- tations period before that. Harper v. Virginia Department of Taxation, 509 U.S. 86, 97 (1993) (“When [the Supreme] Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate 8 our announcement of the rule.”); Festo Corporation v. Shoketsu Kinzoku Kogyo Kabushiki Co., 344 F.3d 1359, 1370 n.4 (Fed. Cir. 2003) (en banc) (“Consistent with Supreme Court precedent, the [intervening] holdings of that Court and our own … apply … to all pending litigation that has not been concluded with a final judgment, including appeals.”). Thus, Mr. Schwieger is correct (ECF No. 144 at 6 n.3) that he can receive the benefit of the Supreme Court’s decision in Feliciano, entitling him to damages for any active-duty service for nine years and fourteen days back from when he filed his complaint, even though the Supreme Court’s decision in Feliciano did not exist when he filed his complaint. Mr. Schwieger’s 2009-10 mobilization ended on September 27, 2010 (ECF No. 129 at 8 [¶24]; ECF No. 138 at 9), so that is the last date on which his claim for the 2009-10 mobilization accrued. Counting forward from that date determines the date on which Mr. Schwieger needed to file suit. With the six-year statute of limitations plus three years and fourteen days of tolling, added to September 27, 2010, Mr. Schwieger would have needed to file his complaint by October 11, 2019. See ECF No. 149 at 2 (After adding the three years and fourteen days of tolling, “Mr. Schwieger’s claims for the 2009 to 2010 mobilization accrued no later than October 11, 2013. Six years from that date is October 11, 2019.”); ECF No. 156 at 9:12-10:13. The timing of when his complaint was deemed filed, discussed next, will determine whether the count of Mr. Schwieger’s complaint relating to his 2009-10 mobilization is timely. 2. Mr. Schwieger is not entitled to relate his complaint back to Mr. Kluge’s original complaint Mr. Kluge filed suit in district court on August 29, 2019. ECF No. 1. Mr. Schwieger joined the suit, at the earliest, on March 31, 2020, when Mr. Kluge filed a motion to amend his complaint to add Mr. Schwieger as a named plaintiff. ECF No. 14 at 3-4. Because the district court transferred the case to this court, no one disputes that Mr. Schwieger is entitled to the benefit of a filing date 9 in district court. The question is which filing date in district court applies. Mr. Schwieger’s claim covering the 2009-10 mobilization is timely under SCRA tolling only if he has the benefit of re- lating his complaint back to Mr. Kluge’s original complaint. His claim is untimely if he cannot relate back to that complaint. Mr. Schwieger’s fifth amended complaint—the current one—alleges that the 2009-10 mobilization claim and the class claim are timely because they are “not only related to the same conduct, transaction, and occurrences alleged in [Mr. Kluge’s original com- plaint (ECF No. 1)] but are, in fact, those same original allegations / claims.” ECF No. 129 at 6-7 [¶19]. The relation-back doctrine arises out of this court’s rule 15(c)(1)(B), which states that “[a]n amendment to a pleading relates back to the date of the original pleading when ... the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.” RCFC 15(c)(1)(B). This court has developed a four-factor test to determine when an amended complaint, adding a new plaintiff, can relate back to the original complaint: the court must determine “(1) whether the new plaintiff’s claim arose out of the same conduct, transaction, or occurrence as the original complaint; (2) whether the new plaintiff shares an identity of interest with the original plaintiff; (3) whether the defendant had fair notice of the new plaintiff’s claim; and (4) whether the addition of the new plaintiff causes the defendant prejudice.” Holland v. United States, 62 Fed. Cl. 395, 407 (2004) (quotation marks omitted); see Jordan v. United States, 179 Fed. Cl. 558, 581 (2025) (same); Big Oak Farms, Inc v. United States, 141 Fed. Cl. 482, 489 n.8 (2019) (explaining that while “[t]he Federal Circuit has not had occasion to rule on this four-factor test … these same factors are relied upon in other circuits including the D.C. Circuit,” citing Leachman v. Beech Aircraft Corporation, 694 F.2d 1301, 1309 (D.C. Cir. 1982)). 10  a. Class-wide tolling is not applicable in this case Mr. Schwieger argues that he is entitled to class-wide tolling under the standard in Ameri- can Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974). He argues that “[f]rom the date filed, the original complaint (ECF [No.] 1) tolled the limitations period … because his claims were ‘en- compassed’ as putative class members in Mr. Kluge’s original pleading.” ECF No. 146-1 at 8. But, following Supreme Court precedent, the Federal Circuit recently held “that 28 U.S.C. § 2501 is not subject to American Pipe tolling.” Kelly, 181 F.4th at 1378. At the same time, the Federal Circuit in another case explained that the bar in this court against equitable tolling for class actions “is not dependent on intervening in or joining an existing suit,” although that decision addressed a situation in which the plaintiff had filed a separate suit after being dismissed from the class action. Blue Cross and Blue Shield of Kansas City Welfare Benefit Plan v. United States, No. 24-2317, 2026 WL 2070084, at *5 (Fed. Cir. July 17, 2026) (nonprecedential). To the extent that relation back or tolling is still available for a new plaintiff who is at- tempting to join an earlier class-action complaint in this court, as opposed to filing a separate suit, it is available only once the named plaintiffs have “moved for a ruling on their request for class certification”; otherwise the class action is “nothing more than a class complaint pending before the court.” Big Oak Farms, 141 Fed. Cl. at 493. “If by simply filing a class action complaint a party could unilaterally toll the statute of limitations and then have new parties join the litigation as though the new parties were opting into a class action without any court ruling on class certifi- cation,” there would be little reason for the original plaintiffs to pursue class certification. Id. Here, Mr. Kluge moved for class certification (ECF No. 27), but the motion was denied as moot (ECF No. 28) prior to the case being transferred to this court. And, to date, Mr. Schwieger has never moved for class certification. Thus, Mr. Schwieger cannot benefit from relation back or tolling based on any class-action claims. 11  b. Mr. Kluge’s dismissal of his claims rendered his original com- plaint a nullity, so Mr. Schwieger cannot relate his claims back Mr. Schwieger also seeks to relate his complaint back to Mr. Kluge’s original complaint independent of any class claims. But Mr. Kluge’s voluntary dismissal of his own claims in October 2023, with prejudice (ECF No. 80), undermines Mr. Schwieger’s relation-back argument. The Federal Circuit has held that when a plaintiff voluntarily dismisses his complaint, the effect “is to render the proceedings a nullity and leave the parties as if the action had never been brought.” Bonneville Associates, Limited Partnership v. Barram, 165 F.3d 1360, 1364 (Fed. Cir. 1999) (quotation marks omitted); see also Graves v. Principi, 294 F.3d 1350, 1355-56 (Fed. Cir. 2002) (same); Holloway v. United States, 60 Fed. Cl. 254, 261 (2004) (“When an action is dis- missed it is as if it never existed.”), aff’d, 143 F. App’x 313 (Fed. Cir. 2005); Ramona Investment Group v. United States, 115 Fed. Cl. 704, 706 (2014) (explaining “that because a dismissal without prejudice renders the prior proceedings a legal nullity, it therefore cannot have the legal effect of starting the running of the statute of limitations”); 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2367, at 321 (4th ed. 2026) (“[A] voluntary dismissal without prejudice … leaves the situation as if the action never had been filed.”). That is true whether the plaintiff has dismissed his suit with or without prejudice. Graves, 294 F.3d at 1355-56. After the court granted Mr. Kluge’s oral motion to dismiss his claims with prejudice in October 2023 (ECF No. 80), he was no longer a part of the case. Mr. Schwieger was the sole plaintiff. Id. Mr. Kluge’s dismissal of his own claims rendered his complaint a nullity, up until the date Mr. Schwieger joined the suit, or at least until Mr. Kluge moved to add Mr. Schwieger to the suit in March 2020. That fact alone prevents Mr. Schwieger from receiving the benefit of relation back to Mr. Kluge’s complaint. 12  c. Multiple other dismissals without prejudice independently complicate any relation back for Mr. Schwieger’s 2009-10 mo- bilization In February 2021, after a government motion to dismiss, the district court dismissed the complaint of Mr. Kluge and Mr. Schwieger without prejudice with leave to refile because the allegations were muddled and unclear, preventing the district court from assuring itself of its ju- risdiction. ECF No. 39 at 2-4. Mr. Kluge and Mr. Schwieger then sought to transfer the case here and also refiled their complaint, also in February 2021. ECF Nos. 40, 42. Later, when Mr. Schwieger was the sole plaintiff, the government moved to dismiss his claim relating to the 2009-10 mobilization on jurisdictional grounds. ECF No. 81. In response, Mr. Schwieger, in June 2024, filed a consent motion to “withdraw / dismiss without prejudice” his claim relating to the 2009-10 mobilization. ECF No. 99 at 1. Mr. Schwieger stated that he chose to file the consent motion in order to “isolate the [2018-19 mobilization] claim left in the case.” Id. at 2. The court granted the motion that same month, dismissing Mr. Schwieger’s claim relating to the 2009-10 mobilization without prejudice. ECF No. 100. Mr. Schwieger sought to restore the claim relating to the 2009-10 mobilization again in September 2025, which the court granted in April 2026. ECF Nos. 111, 128. Those dismissals without prejudice each made Mr. Schwieger’s position even worse, inde- pendently obstructing him from relating back to Mr. Kluge’s August 2019 complaint. Thus, even if Mr. Kluge’s dismissal of his complaint with prejudice had not nullified the original complaint date of August 2019, two dismissals of Mr. Schwieger’s 2009-10 claim without prejudice would have had the same nullifying effect, resetting his filing date each time to a date well after October 2019. See Bonneville, 165 F.3d at 1364.1 1 Mr. Schwieger presented contradictory arguments about which complaint the 2009-10 mobiliza- tion claim should relate back to. When Mr. Schwieger moved to amend the complaint, he asked 13  Although Bonneville and the other cases cited above do not address dismissal of one claim among others for a single plaintiff, as happened in the June 2024 voluntary dismissal without prej- udice, the logic, at least in this case, applies similarly to Mr. Schwieger’s situation. Relation back requires determining whether the later complaint arises out of the same “conduct, transaction, or occurrence” as the earlier complaint. RCFC 15(c)(1)(B). The two different mobilizations are dif- ferent occurrences. That is why Mr. Schwieger chose to drop part of his original complaint in the first place, as one was clearly timely and the other was at least complicated. ECF No. 99 at 2. He cannot resurrect the 2009-10 claim without the new filing date having meaning. See Big Oak Farms, 141 Fed. Cl. at 493 (agreeing with the government that when “plaintiffs never sought class certification and when they abandoned their request for class status after the statute of limitations had expired, they relinquished their tolling claim”). His approach to this suit has at least caused significant confusion over which claims could have remained part of the suit over all that time. See ECF No. 39 at 2-4 (district court dismissing Mr. Kluge and Mr. Schwieger’s complaint without prejudice in February 2021 and explaining that it “cannot assure itself of jurisdiction” because of the third amended “complaint’s muddled nature”). Notably, in Mr. Schwieger’s June 2024 consent motion to dismiss his 2009-10 claim with- out prejudice, Mr. Schwieger also moved to dismiss his claim related to class certification. ECF No. 99 at 1 n.1 (noting his intent to withdraw the “older differential claim and class claims”); id. at 2 (noting his intent to “isolate the one outstanding claim left in the case”). The court noted that Mr. Schwieger “wants to withdraw his 2009-2010 deployment claims and class allegations but the court for leave to “reinstate his older claim for differential pay as well as class claims found in this case’s original Transfer Complaint.” ECF No. 111 at 1. That transfer complaint was dated December 2021. ECF No. 56. But when he filed his amended complaint, he asserted that his claim relates back to Mr. Kluge’s original complaint, dated August 2019. ECF No. 129 at 6-7 [¶19]. Regardless, the date Mr. Schwieger asserts does not control the analysis. 14 maintain his 2018-2019 deployment claim.” ECF No. 100 at 1. The court granted the motion with respect to the class claim as well. Id. Mr. Schwieger later moved to reinstate his dismissed class claim, alongside the 2009-10 mobilization claim, in 2025. ECF No. 111. The court granted the motion in April 2026 (ECF No. 128), and Mr. Schwieger filed an amended complaint that same month (ECF No. 129). But none of those actions affected Mr. Schwieger’s decision earlier to dis- miss the claims without prejudice, apparently giving up his earlier filing date in the process. * * * In sum, Mr. Schwieger cannot relate his complaint back to Mr. Kluge’s August 2019 com- plaint, and Mr. Schwieger’s complaint is untimely for purposes of the 2009-10 mobilization. 3. The accrual suspension doctrine does not apply in this case In the alternative to relating his claim back to Mr. Kluge’s complaint, Mr. Schwieger as- serts that, under the accrual suspension doctrine, his claim did not accrue until after the Supreme Court’s decision in Feliciano in April 2025 (ECF No. 129 at 7 [¶20]; see id. at 2-3 [¶6]; ECF No. 138 at 12) or after the Federal Circuit’s decision in O’Farrell v. Department of Defense, 882 F.3d 1080 (Fed. Cir. 2018) (ECF No. 146-1 at 15). Mr. Schwieger asserts that before the Supreme Court in Feliciano (or the Federal Circuit in O’Farrell) reversed “a core statutory interpretation issue,” Mr. Schwieger and other similarly situated plaintiffs could not have brought a claim for differential pay. See ECF No. 129 at 7 [¶20]. As this court recently discussed and decided in Platero v. United States, No. 25-782, 2026 WL 2263787 (Fed. Cl. July 22, 2026), an analysis the court will repeat here in large part, Mr. Schwieger, like the Platero plaintiffs, is not entitled to accrual suspension based on changes in the law in Feliciano or O’Farrell. The accrual suspension rule is “distinct from the question whether equitable tolling is avail- able under” 28 U.S.C. § 2501. Martinez, 333 F.3d at 1319. To my knowledge, the rule appears 15 only in decisions of this court and the Federal Circuit (or their predecessors).2 And the court of appeals most often denies application of the rule. See Young v. United States, 529 F.3d 1380, 1385 (Fed. Cir. 2008); Martinez, 333 F.3d at 1319; but see Holmes v. United States, 657 F.3d 1303, 1322-23 (Fed. Cir. 2011) (requiring the Court of Federal Claims to apply the accrual suspension rule in the plaintiff’s favor in determining when he reasonably should have known of the alleged breach of contract). That is because the rule must be “strictly and narrowly applied.” Welcker v. United States, 752 F.2d 1577, 1580 (Fed. Cir. 1985). According to the en banc Federal Circuit, “the accrual of a claim against the United States is suspended, for purposes of 28 U.S.C. § 2501, until the claimant knew or should have known that the claim existed.” Martinez, 333 F.3d at 1319; see Japanese War Notes Claimants Association of Philippines, Inc. v. United States, 373 F.2d 356, 358-59 (Ct. Cl. 1967). Thus, a plaintiff “must either show that [the] defendant has concealed its acts with the result that [the] plaintiff was una- ware of their existence or [he] must show that [his] injury was ‘inherently unknowable’ at the accrual date.” Japanese War Notes, 373 F.2d at 359 (quoting Urie v. Thompson, 337 U.S. 163, 169 (1949)). Mr. Schwieger does not assert that the government concealed its failure to pay him the difference between his federal civilian salary and his military pay during his 2009-10 mobilization. Mr. Schwieger concedes that he knew of his missed pay at least by the time he received the last deficient paycheck for a period of active duty. ECF No. 156 at 9:12-23. Mr. Schwieger instead argues that his injuries were inherently unknowable because binding precedent from at least 2021 to 2025, and at other earlier periods, precluded him from bringing or 2 While a unique doctrine for a limitations period applicable only to this court is odd, so is the jurisdictional nature of this court’s statute of limitations under John R. Sand & Gravel. See United States v. Wong, 575 U.S. 402, 409-10 (2015) (explaining that “most time bars are nonjurisdic- tional”); Harrow v. Department of Defense, 601 U.S. 480, 484 (2024). 16 maintaining a suit. In Adams v. Department of Homeland Security, 3 F.4th 1375, 1380 (Fed. Cir. 2021), the Federal Circuit held that a reservist’s service needed to be connected to the declared emergency to entitle that reservist to differential pay. That decision was binding on this court and the Federal Circuit until the Supreme Court’s 2025 reversal in Feliciano. Mr. Schwieger also relies on O’Farrell, but for the opposite proposition from the Platero plaintiffs. The Platero plaintiffs argued that, before Adams, in the 2018 O’Farrell decision, the Federal Circuit had intimated, albeit primarily in the context of a different statute, that reservists “must demonstrate that their call to active duty was in support of a contingency operation.” O’Far- rell, 882 F.3d at 1086 n.5 (quotation marks omitted); see Platero, No. 25-782, ECF No. 65 at 17:24-18:17. They thus argued that the Federal Circuit had announced the same interpretation of the statute at least as early as 2018, which the court of appeals carried through to Adams, and which remained the binding interpretation until the 2025 Feliciano decision. Mr. Schwieger argues, on the other hand, that the Federal Circuit in O’Farrell held that reservists were entitled to their dif- ferential pay, regardless of the reason for their mobilization. ECF No. 146-1 at 5, 15-22. By impli- cation, the Federal Circuit must have then changed its interpretation in Adams, before being re- versed in Feliciano. Mr. Schwieger adds that, before any of the Federal Circuit’s decisions, the government, including the Office of Personnel Management, consistently took the position that the relief he now seeks was unavailable, or at least the government failed to provide clear guidance. ECF No. 146-1 at 16-17. Mr. Schwieger thus appears to argue that, although the facts of his case were knowable at all times, the law was unknowable, at least before O’Farrell in 2018, and between Adams in 2021 and Feliciano in 2025. 17  Regardless of which case—O’Farrell or Adams—first announced a rule limiting differen- tial pay to only certain reservists, or whether there was the flipflopping series of precedents Mr. Schwieger alleges, the analysis is the same. As an initial matter, Mr. Schwieger cites no binding authority indicating that the accrual suspension rule applies to changes in law, as opposed to unknowable facts. Although this court applied the rule to changes in law in Ciapessoni v. United States, 129 Fed. Cl. 332, 335 (2016); Boyajian v. United States, 129 Fed. Cl. 336, 340 (2016); and Petro-Hunt, LLC v. United States, 90 Fed. Cl. 51, 62-63 (2009), aff’d on other grounds, 862 F.3d 1370, 1378-79 (Fed. Cir. 2017), courts generally do not suspend accrual of statutes of limitations for changes in law. See Catawba Indian Tribe of South Carolina v. United States, 982 F.2d 1564, 1572 (Fed. Cir. 1993) (declining to apply the accrual suspension rule where “all the relevant facts were known. It was the meaning of the law that was misunderstood.”); cf. Boling v. United States, 220 F.3d 1365, 1374 (Fed. Cir. 2000) (addressing equitable tolling—not accrual suspension—and holding that, even though there was an earlier binding decision that “effectively barred the cause of action,” “the plaintiffs point[ed] to no authority which would suggest that the presence of adverse precedent automatically leads to equitable tolling,” and the plaintiffs could not toll the statute of limitations); but cf. Menominee Indian Tribe of Wisconsin v. United States, 577 U.S. 250, 257-58 & nn.3-4 (2016) (denying equi- table tolling to the Menominee Tribe but declining to decide whether equitable tolling—not accrual suspension—could apply based on a party’s “relying on actually binding precedent that is subse- quently reversed”).3 3 Boling and Menominee Indian Tribe both concerned equitable tolling rather than accrual suspen- sion. The standard for equitable tolling—which requires that a plaintiff show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing,” Menominee Indian Tribe, 577 U.S. at 255—appears to be more forgiving 18  In fact, applying the accrual suspension rule to changes in law can lead to unreasonable results. The differential-pay statute at issue was enacted in 2009. If the statute were much older, say, dating back to the 1970s instead of 2009, under Mr. Schwieger’s theory the accrual suspension rule would still allow damages for periods of service dating back that far. But this court’s statute of limitations is designed “to achieve a broader system-related goal, such as facilitating the admin- istration of claims, limiting the scope of a governmental waiver of s