United States District Court, W.D. Pennsylvania
DAVID L. BATTLE, Plaintiff
RAY MABUS, in his official capacity as the Secretary of the Navy, and the DEPARTMENT OF THE NAVY, Defendants.
N. BLOCH, UNITED STATES DISTRICT JUDGE.
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.
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.
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. 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).
Allegations in the Complaint
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). 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).
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).
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.
Standard of Review
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. 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).
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
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
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 ...