UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
August 24, 2006
TERRY L. CARTER, PLAINTIFF,
DEPARTMENT OF THE NAVY, ET AL., DEFENDANTS.
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.
II. Standards of Review
A. Rule 12(b)(1)
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 only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Loughlin v. United States, 393 F.3d 155, 162-63 (D.C. Cir. 2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)) (internal quotation marks omitted).
B. Rule 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), the legal sufficiency of a complaint is tested. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A "complaint need only set forth 'a short and plain statement of the claim,' . . . giving the defendant fair notice of the claim and the grounds upon which it rests." Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (quoting Fed. R. Civ. P. 8(a)(2) and Conley, 355 U.S. at 47). Moreover, the pleadings of pro se parties are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). However, "[a]lthough a court will read a pro se plaintiff's complaint liberally, a pro se complaint must present a claim on which the Court can grant relief." Chandler v. Roche, 215 F. Supp. 2d 166, 168 (D.D.C. 2002) (citing Crisaft v. Holland, 665 F.2d 1305, 1308 (D.C. Cir. 1981)).
When evaluating a motion for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court "must treat the complaint's factual allegations as true and must grant the plaintiff the benefit of all inferences that can be derived from the facts alleged." Sparrow v. United Airlines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (internal quotation marks and citations omitted). A complaint may be dismissed under Rule 12(b)(6) "only if it is clear that no relief can be granted under any set of facts that could be proved consistent with the allegations." Totten v. Norton, 421 F. Supp. 2d 115, 119 (D.D.C. 2006) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (internal quotation marks omitted). Moreover, "[b]are conclusions of law and sweeping and unwarranted averments of fact will not be deemed admitted" for the purpose of a Rule 12(b)(6) motion. M.K. v. Tenet, 99 F. Supp. 2d 12, 17 (D.D.C. 2000) (citing Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987)).
The defendants argue that the plaintiff has not set forth a proper statutory basis for the Court's jurisdiction over his claims. Defs.' Mem. at 1. They argue that "[the plaintiff] does not cite any bases for subject matter jurisdiction by this Court or waiver of sovereign immunity by the United States." Id. at 14. Further, the defendants assert that even under a liberal construction of the complaint, all of the plaintiff's claims are barred by the six-year statute of limitations.*fn9 Id. at 1-2 (citing 28 U.S.C. § 2401(a)). They argue that an action challenging a discharge from military service accrues at the time the discharge occurs. Id. at 7 (citing Walters v. Sec'y of Defense, 725 F.2d 107 (D.C. Cir. 1983)). According to the defendants, "the clock started ticking on February 17, 1978, and [the plaintiff] should have brought any claims no later than February 17, 1984. It is now twenty-one years too late." Id.
In reply, the plaintiff cryptically contends that "[t]he jurisdictional facts of this case are adequately set forth in the complaint."*fn10 Pl.'s Opp. at 1. The plaintiff also maintains that his claims are not barred by the statute of limitations. Id. at 5. Specifically, he argues (1) that the claims relating to his military discharge did not accrue in 1978; and (2) that the claims relating to his 2003 and 2004 BCNR applications are clearly within the six-year statute of limitations. Id. at 5-6. He also asserts that the defendants' reliance on 28 U.S.C. § 2401(a) in connection with the plaintiff's date of military discharge is misplaced. Id. at 5. First, the plaintiff argues that his military discharge date of February 17, 1978, is void because he did not receive a formal hearing as he demanded in December 1977. Id. at 10. Rather, the plaintiff suggests that claims relating to his military discharge would not have begun to accrue until the time at which he "discover[ed] the alleged error or injustice." Id. at 5. Second, the plaintiff argues that any limitation period would not begin to run on his claim challenging the defendants' failure to act on his application for correction of his military records "until the date that such failure or refusal to act is determined to operate as a final determination of the Secretary on the application." Id. The plaintiff claims that "[n]either the April 2003 denial of the [p]laintiff's initial application or [the] January 2005 denial of the amended application is outside the time within which an action may be brought for review and relief of those determinations." Id. at 5-6.
As noted earlier, any claims relating to the plaintiff's 1978 military discharge that were or could have been brought in the plaintiff's 2004 complaint before the Court of Federal Claims are precluded from relitigation by the doctrine of res judicata. See supra note 5. For the reasons that follow, the Court concludes that all of the plaintiff's other claims relating to his military discharge, but not those relating to his application for correction of his military records, are barred by the statute of limitations. Furthermore, to the extent that the plaintiff asks that his complaint be construed to include an APA claim alleging that the BCNR improperly failed to correct his military record when they closed his applications in April 2003 and January 2005, he is effectively attempting to raise new claims in his opposition to the defendants' motion to dismiss. Although such claims are within the six-year statute of limitations, they have not been properly alleged. Accordingly, the Court must dismiss with prejudice the claims relating to the plaintiff's 1978 military discharge, but will afford the plaintiff leave to amend his complaint to include APA claims challenging the BCNR's 2003 and 2005 actions.
A. The Statute of Limitations
All civil actions brought against the United States "shall be barred unless the complaint is filed within six years after the right of action first accrues." 28 U.S.C. § 2401(a). A cause of action "accrues when it first comes into existence as an enforceable claim or right." Felter v. Norton, 412 F. Supp. 2d 118, 125 (D.D.C. 2006) (citations omitted). The plaintiff's cause of action for his claims of racial discrimination, for which he now seeks declaratory relief, Compl. at 15, clearly began to accrue during his service time, when the plaintiff by his own admission "challenged those [allegedly discriminatory] acts and conduct of the defendant . . . to the resentment of his superiors," Compl. ¶ 30. And "it seems eminently sensible to conclude" that the plaintiff's cause of action for claims relating to his 1977 splenectomy and subsequent honorable discharge "first accrued when he received his . . . discharge" in February 1978-that is, when the PEB determined that the plaintiff was unfit for service and entitled to a partial disability. Walters, 725 F.2d at 114. Accordingly, the Court agrees with the defendants that the clock began to run no later February 17, 1978, for any claims relating to the plaintiff's military service or military discharge.*fn11 Thus, the plaintiff's claims that he was improperly discharged based on racial discrimination and a faulty medical diagnosis in violation of the United States Constitution, applicable statutes, and military regulations had to be initiated within six years of the discharge, or by February 17, 1984.*fn12 Having filed suit with this Court on April 18, 2005, the plaintiff has brought this action well outside the applicable six-year statute of limitations.*fn13 All of the plaintiff's claims alleging constitutional and statutory violations by the defendants leading to his 1978 military discharge, including the defendants' alleged medical malpractice and racial discrimination, are thus barred by § 2401(a).
On the other hand, the plaintiff's claims regarding his 2003 and 2005 applications for the correction of his military record are not barred by 28 U.S.C. § 2401(a).*fn14 Bittner v. Sec'y of Defense, 625 F. Supp. 1022, 1029 (D.D.C. 1985) (concluding that plaintiffs seeking review of administrative review boards' decisions regarding the upgrade of their military discharge were not barred by the statute of limitations, even though plaintiffs were barred from seeking review of their original discharge where it occurred more than six years before the case was filed) (quoting Van Bourg v. Nitze, 388 F.2d 557, 563 (D.C. Cir. 1967)). Accordingly, the statute of limitations does not bar the plaintiff from bringing a claim relating to the 2003 and 2005 actions of the BCNR refusing to correct his military record. Id.
B. The APA Claim
Claims challenging the decisions of military boards for the correction of records are subject to judicial review under the APA. Piersall v. Winter, 435 F.3d 319, 324 (D.C. Cir. 2006). The plaintiff, however, concedes that his complaint does not properly articulate a claim under the APA seeking judicial review of the defendants' denial of his applications to the BCNR. Pl.'s Opp. at 4. Consequently, the plaintiff "requests that the Court deem the Complaint amended [to include a claim under the APA] or in the alternative that [he] be permitted the filing of an amended Complaint." Id. The defendants argue in response that the plaintiff cannot de facto amend his complaint by asserting new claims under the APA in his responsive pleadings. See Defs.' Reply at 3-4 (arguing that the plaintiff has not complied with Local Civil Rule 7(i) by failing to provide the defendants or the Court with his proposed amended complaint).
Local Civil Rule 7(i) requires that "[a] motion for leave to file an amended pleading shall be accompanied by an original of the proposed pleadings as amended." Local Civ. R. 7(i). However, Federal Rule of Civil Procedure 15(a) provides that leave to amend a complaint "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a); see also Davis v. Liberty Mut. Ins. Co., 871 F.2d 1134, 1136-37 (D.C. Cir. 1989) (stating that "[i]t is common ground that Rule 15 embodies a generally favorable policy toward amendments") (citation omitted); Graves v. United States, 961 F. Supp. 314, 317 (D.D.C. 1997) (noting that the decision whether to grant or deny leave to amend is within the court's discretion). Absent "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.," a court should grant a request to amend a complaint. Atchinson v. District of Columbia, 73 F.3d 418, 425-26 (D.C. Cir. 1996) (internal quotation marks and citations omitted). Further, "Rule 15(a) 'guarantees a plaintiff an absolute right' to amend the complaint once at any time so long as the defendant has not served a responsive pleading and the court has not decided a motion to dismiss." Adams v. Quattlebaum, 219 F.R.D. 195, 196 (D.D.C. 2004) (quoting James v. Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 282-83 (D.C. Cir. 2000)).
In the instant case, because the plaintiff is a pro se litigant whose pleadings are held to a less stringent standard than those drafted by a lawyer, the Court will read all of the plaintiff's filings together and consider his complaint in light of his reply to the motion to dismiss. See Richardson v. United States, 193 F.3d 545, 548 (D.C. Cir. 1999). In Richardson, the District of Columbia Circuit considered four factors in holding that the district court erred in refusing to consider a pro se plaintiff's reply to constitute an amendment to his original complaint: (1) the plaintiff was a pro se litigant; (2) the plaintiff could have amended his claim as a right because the defendant had not yet filed a responsive pleading; (3) the plaintiff recognized the need for and attempted to make a change to his original complaint; and (4) the lack of evidence showing that the defendant would be prejudiced by a grant to amend the complaint. Id. at 548-49. As in Richardson, the plaintiff here is proceeding pro se, he has requested to amend his complaint prior to its dismissal, he clearly intended to change his complaint, if so permitted, to include a claim under the APA, and the defendants will not be prejudiced by allowing the complaint to be amended. Therefore, although the plaintiff did not include an APA claim in his original complaint, this Court will read the plaintiff's complaint in light of his reply to the motion to dismiss. Because APA claims challenging the BCNR's 2003 and 2005 actions may be proper subjects for relief and because the plaintiff has requested leave to amend his complaint to include such claims, the Court grants the plaintiff leave to amend his complaint to assert with greater clarity claims challenging the 2003 and 2005 actions of the BCNR under the APA. However, the plaintiff may not seek to amend his complaint in any other respect. Cf. Wyatt v. Syrian Arab Republic, 362 F. Supp. 2d 103, 117 (D.D.C. 2005) (allowing the plaintiffs to amend their complaint with a statement indicating which jurisdiction's law they sought to apply, but not allowing any other modifications of the complaint).
For the reasons stated above, the Court dismisses the claims related to the plaintiff's 1978 military discharge, but grants the plaintiff leave to amend his complaint to assert with greater clarity his claims challenging the 2003 and 2005 closures of his BCNR applications under the APA.*fn15
SO ORDERED this 24th day of August, 2006.