years of the adverse review board decision, regardless of
whether, or when, an application for reconsideration is filed.
E.g., Soble v. ABCMR, 1998 WL 60771 at *2 (N.D.Ill. Feb 5,
1998), aff'd, 151 F.3d 1033, 1998 WL 516770 (7th Cir. 1998).
Others have held that the period for filing suit runs from the
date of reconsideration, provided that the application for
reconsideration is filed within six years of the adverse review
board decision. E.g., Lewis, 1990 WL 454624 at *8.
However, if an application is not filed within six years of
the adverse review board decision, the period for filing suit
does not run from the date of the decision on reconsideration,
instead it runs from the date of the adverse review board
decision. Bethke v. Stetson, 521 F. Supp. 488, 489-91 (N.D.Ga.
1979). This rule prevents litigants from using the filing of
applications for reconsideration to "delay the running of the
six year statute of limitations indefinitely," thereby thwarting
"`those practical ends which are to be served by any limitation
of the time within which an action must be brought.'" Id. at
490, 491 (quoting Crown Coat Front Co. v. United States,
386 U.S. 503, 517, 87 S.Ct. 1177, 18 L.Ed.2d 256 (1967)). As the
court stated in Pacyna v. Marsh, 617 F. Supp. 101, 103
(W.D.N.Y. 1984), "a plaintiff cannot revive his claim by
applying to the ABCMR in 1981 and claiming that the 1982
decision revived a jurisdictional statute. To do this would
provide a plaintiff to have the power to avoid the
jurisdictional bar every time he submitted an application which
was considered by the Board." To allow this would make
28 U.S.C. § 2401(a) meaningless.
In Klehr v. A.O. Smith Corp., 521 U.S. 179, 117 S.Ct. 1984,
138 L.Ed.2d 373 (1997), the Court considered the same issue that
arose in Bethke and Pacyna — that of limitation periods
subject to indefinite renewal — and reached the same conclusion.
In Klehr, the plaintiffs argued that the four-year period of
limitations for civil RICO actions should run from the date of
the last "predicate act" committed as part of the alleged
"pattern of racketeering activity." 521 U.S. at 179, 117 S.Ct.
1984. Rejecting this argument, the Court held that acceptance of
the argument would have "lengthen[ed] the limitations period
dramatically," because "a series of predicate acts (including
acts occurring at up to 10-year intervals) can continue
indefinitely." 521 U.S. at 187, 117 S.Ct. 1984. Declining to
"create a limitations period that is longer than Congress could
have contemplated," the Court characterized the argument as one
that would have "conflict[ed] with a basic objective — repose —
that underlies limitations periods." Id.; accord Rotella, 528
U.S. at 554, 120 S.Ct. 1075 (discussing Klehr).
In this case, plaintiff was advised by letter dated May 29,
1992 that the Board had recommended he be separated
involuntarily effective January 1, 1993. To timely challenge
that action, he would have had to file suit no later than May
29, 1998. Mr. Nihiser also argues that the statute of
limitations to bring a direct challenge to the recommendation of
the Board did not begin to run until January 1, 1993, the date
of his actual separation. Even assuming that plaintiffs time to
bring a direct challenge to the recommendation of the Board did
not begin to run until January 1, 1993, his allotted six year
limit would have run on January 1, 1999. He did not commence
this action until August 27, 2001, more than six years later.
Instead, Mr. Nihiser filed for relief to the ABCMR on March
10, 1993, and was informed of his denial on May 5, 1993. To
timely challenge this decision, he would have had to file suit
by May 5, 1999. On
October 5, 1999, more than six years later, Mr. Nihiser asked
the ABCMR to reconsider its 1993 decision. But because his
petition for reconsideration was filed more than six years after
the ABCMR's initial decision, it does not delay the running of
the six year statute of limitations.*fn1 See Bethke v.
Stetson, 521 F. Supp. 488, 489-91 (N.D.Ga. 1979); Pacyna v.
Marsh, 617 F. Supp. 101, 103 (W.D.N.Y. 1984).
Plaintiff also unpersuasively argues that Adarand v. Pena,
515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) affects the
statute of limitation in this case. In Adarand, the Supreme
Court held that strict scrutiny was the standard to use when
evaluating race-based affirmative action programs. Id.
Plaintiff argues that Adarand was not decided until June 1995
and its implications did not become apparent until some time
after that. Therefore, the doctrine of equitable tolling
precludes this action from being deemed untimely. This argument
is unconvincing. Even if this decision did toll the six year
limitation, the plaintiff would still not have made it under the
six year window, since he commenced this suit August 27, 2001.
The plaintiff's argument is also without merit. "The court's
equitable power to toll the statute of limitations will be
exercised only in extraordinary and carefully circumcised
instances." Smith-Haynie v. District of Columbia,
155 F.3d 575, 579-80 (D.C.Cir. 1998) (quoting Mondy v. Sec'y of the
Army, 845 F.2d 1051, 1057 (D.C.Cir. 1988)). Equitable tolling
is a doctrine, therefore, "which is to be employed `only
sparingly' in any event." United States v. Cicero,
214 F.3d 199, 204 (D.C.Cir. 2000) (quoting Irwin v. Dep't of Vets.
Affs., 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)).
That the law has changed or been reinterpreted is not one of
the "extraordinary and carefully circumscribed instances" that
makes the applications of equitable tolling appropriate. A case
that makes this point
clear is Catawba Indian Tribe of South Carolina v. United
States, 982 F.2d 1564 (Fed.Cir.), cert. denied, 509 U.S. 904,
113 S.Ct. 2995, 125 L.Ed.2d 689 (1993). In Catawba, the
plaintiff argued that an action commenced in 1990 was not
untimely because the plaintiff did not learn that he had been
"damaged" by the government until the Supreme Court construed
the Catawba Indian Tribe Division of Assets Act, Pub.L. No.
86-322, 73 Stat. 592 (1959), in South Carolina v. Catawba
Indian Tribe, 476 U.S. 498, 106 S.Ct. 2039, 90 L.Ed.2d 490
(1986). Holding that the action ought to have been brought
within six years of the effective date of the aforementioned
statute, and further holding that the untimeliness of the action
was not cured by the doctrine of equitable tolling, the court
said, "[A] traditional ground for equitable tolling of a statute
of limitations is based on the avoidance of penalizing a
plaintiff simply because under the circumstances plaintiff did
not and could have not known of the facts upon which the claim
is based." 982 F.2d at 1572. The court further stated, "But in
this case before us all the relevant facts were known. It was
the meaning of the law that was misunderstood." Id.
Another case similar to Catawba is United States ex rel.
Collins v. Neal, 2000 WL 1262912 (N.D.Ill. Sep. 1, 2000). In
Collins, the petitioner argued that equitable tolling excused
the untimely filing of his petition for habeas corpus because he
did not learn until after the statute of limitations had run
that the limitations period for the filing of such petitions had
been shortened by the state legislature. Holding that "ignorance
of the change in the law does not constitute `extraordinary
circumstances' sufficient to permit equitable tolling," the
court said: "A claim of excusable neglect or ignorance of the
law is ordinarily not sufficient to warrant tolling." 2000 WL
1262912 at *1.
A third case emphasizing the same point is United States ex
rel. Bishop v. Cowan, 2000 WL 1898467 (N.D.Ill. Dec 22, 2000).
In Bishop, the petitioner argued that equitable tolling
excused the late filing of his petition for habeas corpus
because he had not learned that Congress had enacted a statute
of limitations for the filing of such petitions until after the
statute had run. Rejecting this argument, the court said:
"[E]quitable tolling applies when a person does not learn the
facts upon which he bases his claim, and petitioner knew the
relevant facts in 1994." 2000 WL 1898467 at *2 (emphasis in the
In this case, plaintiff was advised by letter dated May 29,
1992, that the Board had recommended involuntary separation. He
was advised by a letter that he initialed on May 5, 1993, that
the ABCMR had denied his application for review. As a result, he
knew all of the facts relevant to his case no later than May 5,
1993. Nonetheless, he did not apply for his reconsideration of
the decision until October 5, 1999 and did not commence this
lawsuit until August 27, 2001. Because he did not commence this
action within six years of the date of his separation from the
Army or reapply for reconsideration of the ABCMR decision until
more than six years after the date of that decision, the case is
Admittedly, the law of affirmative action changed
substantially when Adarand was decided. See Adarand, 515
U.S. at 227, 115 S.Ct. 2097 (overruling Metro Broadcasting v.
FCC, 497 U.S. 547, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990)).
This change does not cause equitable tolling to mitigate the
untimeliness of this case. Here, as in the cases discussed
above, "all the relevant facts were known" to the plaintiff
before Adarand was decided; "[i]t was the meaning of the law
misunderstood." See Catawba, 982 F.2d at 1572. Equitable
tolling is thus inapplicable to this case, and the case must
therefore be dismissed.
Finally, the plaintiff took another look at his involuntary
separation when the decision of Sirmans v. Caldera,
27 F. Supp.2d 248 (D.C. Nov. 5, 1998) was decided by this Court. In
Sirmans, the court granted two officers, who challenged the
affirmative action procedures of the Army's promotion board
instruction, limited discovery and a continuance. Because
Sirmans was decided on November 5, 1998, plaintiff had six
months before the deadline of May 5, 1999 to take appropriate
action. He did not do so. Though, the plaintiff somewhat relies
on this case, the decision had no effect on extending the six
year statute of limitations.
For the reasons stated herein, the Court grants defendant's
motion to dismiss. In particular, the Court finds that Mr.
Nihiser failed to file suit within the prescribed six year
period. A separate order consistent with this memorandum opinion
will issue this date.