The opinion of the court was delivered by: Reggie B. Walton United States District Judge
Pro se plaintiff Terry L. Carter brings this action against the Department of the Navy and the United States Marine Corps ("the defendants"), alleging (1) wrongful discharge from active duty based on a faulty medical diagnosis and (2) improper failure to correct military records, Complaint ("Compl.") ¶¶ 1, 11-42, Plaintiff's Opposition to Defendants' Motion to Dismiss ("Pl.'s Opp.") at 3, and seeking declaratory relief, Compl. ¶ 2; Pl's Opp. at 3-4. Currently before the Court is the defendants' motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted.*fn1 For the reasons set forth below, the defendants' motion to dismiss is granted in part and denied in part.
The plaintiff voluntarily enlisted in the United States Marine Corps on August 29, 1974. Compl. ¶ 24; Defs.' Mem. at 1. While on active duty, the plaintiff suffered from abdominal pain, was diagnosed with "sickle cell disease," and underwent a splenectomy in February 1977.
Compl. ¶¶ 11, 24, 38; Defs.' Mem. at 2. The plaintiff continued to suffer from abdominal pain after his surgery, Compl. ¶ 11; Defs.' Mem. at 2, and he was honorably discharged on February 17, 1978, following a determination by a Physical Examination Board ("PEB") that he was unfit for duty due to a permanent physical disability connected, in part, with his military service.*fn2
Compl. ¶¶ 3, 11; Defs.' Mem. at 3.
In 1997, and again in 2000, the plaintiff sought evaluation and treatment of his medical condition. Compl. ¶¶ 13-14. The plaintiff alleges that this treatment revealed that his continuing medical problems were a result of his 1977 surgery. Id. ¶ 14. In 2002, the plaintiff filed an application with the Board for Correction of Naval Records ("BCNR" or "Board") seeking to change his military records to reflect that he retired with a full disability and requesting that he be promoted to the next highest pay grade of E-5.*fn3 Id. ¶ 18; Defs.' Mem. at 3. The BCNR did not formally review the plaintiff's application; rather, in April 2003, the Board administratively closed the plaintiff's case pending receipt of his medical records from the Department of Veterans Affairs ("VA"). Compl. ¶ 16 & Exhibit ("Ex.") E-1. In May 2003, the plaintiff was allegedly provided with previously concealed information which revealed that his discharge was the result of the defendants' misdiagnosis of the cause for his medical condition. Compl. ¶ 15.
On March 3, 2004, the plaintiff filed a complaint in the United States Court of Federal Claims, alleging that the United States, through a pattern of discriminatory and retaliatory conduct motivated by racial animus, had wrongfully discharged him and illegally concealed records that would have revealed the true cause for the medical problem that resulted in his discharge. See Defs.' Mot., Ex C. (Carter v. United States, No. 04-284C, slip. op. at 4 (Fed. Cl. Sept. 10, 2004)). The plaintiff sought an order correcting his retirement status and seeking declaratory relief and an award of back pay. See id. at 4. In September 2004, the Court of Federal Claims dismissed the plaintiff's complaint for lack of subject matter jurisdiction, holding that the plaintiff's claim was time-barred by 28 U.S.C. § 2501 (2000), which provides that "[e]very claim of which the United States Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues." See id. at 5-7, 11. The plaintiff then re-applied to the BCNR to change his military records in November 2004. Compl. ¶ 19; Defs.' Mem. at 4. In January 2005, the BCNR notified the plaintiff that it would not reopen his application until the plaintiff provided it with a copy of the contents of his VA claims folder. Compl., Ex. E-2 (January 28, 2005 letter from W. Dean Pfeiffer to Terry Carter) at 1-2. In March 2005, the BCNR reaffirmed that it had been unable to obtain a copy of the contents of the plaintiff's VA claims folder and, therefore, would not reopen the plaintiff's application until it had received a complete copy of the contents folder from the plaintiff. Compl., Ex. E-3 (March 8, 2005 letter from W. Dean Pfeiffer to Terry Carter) at 1-2.
The plaintiff filed suit in this Court on April 18, 2005, contending that medical malpractice was committed against him by Navy doctors, that he was the victim of discrimination, and that the defendants acted unlawfully in discharging him from the military on February 17, 1978, and concealing his medical records. Compl. ¶¶ 11-14. Specifically, the plaintiff alleges that the defendants have "beleagured and besieged [him] with hostile intent" and caused him to be unlawfully discharged from the military in violation of the Fifth Amendment, various federal statutes, and sections of the United States Marine Corps Promotion Manual and the United States Department of Defense Personnel Manual. Id. ¶ 1. Although the plaintiff does not state that he is bringing a claim under the Administrative Procedure Act, 5 U.S.C. § 706 (2000) ("APA"), he does appear to challenge the BCNR's refusal to correct his military records in 2005, Compl. ¶¶ 16-20.*fn4
On July 20, 2005, the defendants moved to dismiss the complaint, asserting that the plaintiff's claims "are without merit and allege no statutory basis for this Court's subject matter jurisdiction over his claims," Defs.' Mem. at 1, and also arguing that even under a liberal construction of the complaint, the plaintiff has failed to state a claim upon which relief can be granted, id. at 2.*fn5 The defendants note that "the Court might find that [the plaintiff] attempts to state claims under the Administrative Procedure Act," id. at 1, but argue that to the extent that the plaintiff has stated a claim under the APA, the Court lacks jurisdiction because any such claim would be barred by the applicable six-year statute of limitations, id. at 6-7.*fn6 Further, the defendants allege that even if the plaintiff has brought a timely APA claim, it should be dismissed because there has been no final agency action.*fn7 Id. at 7-8. Finally, the defendants assert that any APA claims fail as a matter of law because the plaintiff seeks monetary damages.*fn8
Defs.' Reply at 6-7. In response, the plaintiff concedes that the complaint does not explicitly state a claim under the APA. Pl.'s Opp. at 4. He therefore requests that the Court deem the complaint amended to include such a claim. Id. In addition, the plaintiff contends that he submitted a complete BCNR application, that the statute of limitations period has not run on the BCNR's failure to properly act on his application, and that the BCNR's failure to act is agency action that falls under the jurisdiction of this Court. Id. at 5, 7-8.
On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), "the plaintiff bears the burden of establishing that the court has subject-matter jurisdiction." Natural Resources Def. Council v. Johnson, 422 F. Supp. 2d 105, 110 (D.D.C. 2006) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). When evaluating a Rule 12(b)(1) motion, the Court "must accept the complaint's well-pled factual allegations as true and draw all reasonable inferences in the plaintiff's favor." Thompson v. Capitol Police Bd., 120 F. Supp. 2d 78, 81 (D.D.C. 2000). However, the Court need not "accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations." Zhengxing v. Nathanson, 215 F. Supp. 2d 114, 116 (D.D.C. 2002); see also Mountain States Legal Found. v. Bush, 306 F.3d 1132, 1134 (D.C. Cir. 2002). Additionally, the Court may consider material outside of the pleadings in its effort to determine whether the Court has jurisdiction in the case. Calloway v. Brownlee, 366 F. Supp. 2d 43, 49 (D.D.C. 2005) (Walton, J.). The Court may dismiss a complaint for lack of subject matter jurisdiction ...