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Battle v. Mabus

United States District Court, W.D. Pennsylvania

March 30, 2018

DAVID L. BATTLE, Plaintiff
v.
RAY MABUS, in his official capacity as the Secretary of the Navy, and the DEPARTMENT OF THE NAVY, Defendants.

          MEMORANDUM OPINION

          ALAN N. BLOCH, UNITED STATES DISTRICT JUDGE.

         Presently before the Court are Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment (Doc. No. 11), and Plaintiff's Cross-Motion for Summary Judgment (Doc. No. 20). After consideration of the parties' submissions, and for the reasons set forth herein, Defendants' motion will be granted to the extent it seeks dismissal of Plaintiff's Complaint as untimely and denied to the extent that it seeks an entry of summary judgment, and Plaintiff's motion will be denied. Accordingly, as discussed herein, the Court will dismiss this matter for lack of subject matter jurisdiction.

         I. Background

         A. General

         This case arises from Plaintiff David L. Battle's service in the United States Marine Corps, which began on February 7, 1973, and ended on May 21, 1976, when he was discharged as “other than honorable.” Plaintiff subsequently tried to have this designation changed to “honorable” on several occasions, but his requests were denied. Plaintiff now alleges that the Board for Correction of Naval Records (“BCNR”), in its most recent decision dated November 16, 2016, failed to correct the error and injustice in his record, and seeks relief from this Court.

         10 U.S.C. § 1552 authorizes the Secretary of the United States Navy, acting through civilian boards, to correct an error in, or remove an injustice from, the records of current and former members of the Navy or the Marine Corps.[1] See id. at § 1552(a)(1). The BCNR is the civilian board established by the Secretary to perform this task. See 32 C.F.R. § 723.2. It accepts new applications for the correction of records, and also petitions for reconsideration of prior final adjudications. See id. at §§ 723.3, 723.9. While Section 1552 does not itself provide for judicial review of a BCNR decision, actions challenging such decisions can be brought under statutes such as the Administrative Procedures Act, 5 U.S.C. §§ 701-06. As the Court will discuss at length below, such actions are generally governed by the six-year statute of limitation set forth in 28 U.S.C. § 2401(a).

         B. Allegations in the Complaint

         Plaintiff filed his Complaint in this matter on January 9, 2017, seeking for the Court to review the adverse decision of the BCNR dated November 16, 2016, pursuant to 5 U.S.C. § 702. (Complaint, Doc. No. 3 at ¶ 1).[2] Plaintiff states that he is a veteran of the United States Marine Corps who served from February of 1973 to May of 1976. (Id. at ¶¶ 2, 5). He alleges that, although he had been recommended for administrative separation for a number of instances of minor misconduct, he was not immediately discharged, but rather remained in service while a disability discharge was being processed on his behalf. (Id. at ¶¶ 6-8). During that process, an Assistant Judge Advocate General (“AJAG”) declined to approve a disability discharge, and instead directed that Plaintiff be separated pursuant to the administrative separation. Plaintiff alleges, though, that the AJAG lacked authority to withhold approval and final adjudication of the disability separation under the Navy's regulations applicable at the time. (Id. at ¶¶ 10-11).

         Plaintiff asserts that, after his discharge in May of 1976, he requested correction of his military records in the form of a discharge upgrade, which was denied by the BCNR in 1978. (Id. at ¶ 12). In or around 2015, Plaintiff requested reconsideration of this decision, purportedly based upon new argument and/or evidence. (Id. at ¶¶ 12-13). As part of this request, Plaintiff argued that the AJAG lacked authority to withhold approval of Plaintiff's medical separation and to direct instead that he be separated administratively. He further argued that he had inappropriately been held past his enlistment contract. Despite these arguments, the BCNR denied his request on November 16, 2016. (Id. at ¶¶ 17-18, Ex. A). Plaintiff contends that the BCNR's decision was arbitrary, capricious, and otherwise not in accordance with the law. (Id. at ¶¶ 17-18). Accordingly, he seeks for the Court to reverse the BCNR's decision, direct that his records be corrected, and award attorney fees and costs. (Id. at 5).

         Defendants have moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. Among their arguments is that the Complaint is time-barred by the relevant statute of limitation, 28 U.S.C. § 2401(a), asserting that the relevant “final decision” of the BCNR was the 1978 decision, rather than the 2016 decision. Plaintiff disagrees and argues that the case is, in fact, timely. He has further filed a cross-motion for summary judgment.

         II. Standard of Review

         While the central issues in this case are fairly clear, the proper procedural vehicle for adjudicating them is less so. As noted, Defendants have moved to dismiss the Complaint pursuant to Rule 12(b)(6) on timeliness grounds. Whether this statute of limitation argument is properly raised under Rule 12(b)(6), arguing a failure to state a claim upon which relief may be granted, or under Rule 12(b)(1), arguing a lack of subject matter jurisdiction, is a somewhat unsettled issue.[3] This is because it is not settled whether the limitation period set forth in Section 2401(a) is jurisdictional in nature. See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 145 (2008) (Ginsberg, J., dissenting). Another judge in this District, the Honorable Kim Gibson, recently found that Section 2401(a) was jurisdictional in nature. See Kannikal v. Holder, Civ. No. 3:12-220, 2014 WL 917342, at *4 (W.D. Pa. Mar. 10, 2014). Judge Gibson recognized that, almost 40 years earlier, the Third Circuit had found the protections of Section 2401(a) to be non-waivable and jurisdictional. See United States v. Sams, 521 F.2d 421, 428 (3d Cir. 1975). While the district court's decision in Kannikal was reversed on other grounds, the Third Circuit did not address or question the court's reliance on Sams. Although much has happened in regard to the question of whether Section 2401(a) is jurisdictional since 1975, this Court, like Judge Gibson in Kannikal, finds that the Third Circuit's decision in Sams continues to provide the most authoritative statement by the Circuit on this issue and finds, therefore, that filing within the time frame permitted by Section 2401(a) is a jurisdictional requirement. See also Yelverton v. Dep't of the Army, Civ. No. 13-4495, 2014 WL 4413610, at *4 (E.D. Pa. Sept. 5, 2014). It will therefore consider Defendants' statute of limitation arguments pursuant to Rule 12(b)(1).

         Under Rule 12(b)(1), the standard of review depends on whether the challenge to the court's subject matter jurisdiction is facial or factual. See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Statute of limitation challenges commonly call for the court to look beyond the pleadings and therefore constitute factual challenges. See, e.g., Wright v. United States, Civ. No. 3:13-cv-223, 2014 WL 1910498, at **1-2 (M.D. Pa. May 13, 2014); Anjelino v. New York Times Co., Civ. No. 92-2582(AMW), 1993 WL 170209, at *5 (D. N.J. May 14, 1993). In considering such a challenge, a court may consider evidence outside of the pleadings, see Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000), and “no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional claim.” Mortensen, 549 F.2d at 891. In fact, the plaintiff has the burden of proving jurisdiction, and the court can weigh the evidence in determining whether that burden has been met. See id.; Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 464 (3d Cir. 2013).

         The Court notes, however, that the result in this case would be the same under Rule 12(b)(6). It is true that, in considering a Rule 12(b)(6) motion to dismiss, the factual allegations contained in the complaint must be accepted as true and must be construed in the light most favorable to the plaintiff, and the Court must “‘determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)); see Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). However, the requirement that a court accept as true all factual allegations does not extend to legal conclusions; thus, a court is “‘not bound to accept as true a legal conclusion couched as a factual allegation.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555 (internal citation omitted)).

         Under the law of the Third Circuit, statute of limitation defenses can properly be raised under Rule 12(b)(6). See Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002). In considering a defense so raised, a court, in general, is to focus on the four corners of the complaint itself to determine whether it is timely. See id.; Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384-85 (3d Cir. 1994). However, the court may also consider matters of public record, orders, exhibits attached to the complaint, and items appearing in the record of the case. See 38 F.3d at 1384 n.2. The court can also consider documents “‘integral to or explicitly relied upon in the complaint'” without converting the motion into one for summary judgment. Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)). What matters is not whether the complaint cited the extrinsic document, but rather whether the claims are based on it. See id. As the ...


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