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Timothy A. Remmie, Plaintiff v. Hon. Ray Mabus

March 5, 2012

TIMOTHY A. REMMIE, PLAINTIFF,
v.
HON. RAY MABUS, SECRETARY OF THE NAVY, DEFENDANT.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

Plaintiff Timothy Remmie is a former Petty Officer in the United States Navy who originally enlisted in 1978. During a contentious divorce, Remmie was accused by his then-wife of sexually abusing their daughter, which ultimately led to his discharge from the Navy in 1993. After the truth of her accusation was called into question during the divorce case, the Board for the Correction of Naval Records (BCNR) corrected some of Plaintiff's records, and he was permitted to re-enlist in 1999 until his voluntary retirement in 2006.

He then brought this suit in July 2011 under the Administrative Procedure Act, asking this Court for various forms of relief, including an order requiring the BCNR to further correct his records. Defendant Ray Mabus, the Secretary of the Navy, has now moved to dismiss, arguing that Plaintiff's claims are barred by the applicable statute of limitations and are otherwise non-justiciable. Although some of Plaintiff's requested remedies are beyond this Court's powers, the suit is timely and, in the main, seeks permissible relief. The Court, accordingly, will largely deny the Motion.

I.Background

According to the Complaint, Plaintiff had been serving in the Navy for twelve years when, on November 25, 1990, after discovering his wife's extramarital affair, he and his wife agreed to separate and file for divorce. See Compl. at 2. In July 1991, after requesting custody of his children, Plaintiff took his three-year-old daughter on a ten-day vacation to Florida. Id. at 3. The following month, Plaintiff's wife issued a complaint to the Virginia Beach Police Department alleging that Plaintiff had sexually abused his daughter while in Florida, an allegation Plaintiff denied. Id. After an investigation by the police and a polygraph test that showed "no deception indicated," Plaintiff was not charged with any crime; nonetheless, a separate determination was made by the Virginia Beach Social Services Department that Plaintiff had abused his daughter. Id. Plaintiff was also evaluated by a social worker with the Navy Family Advocacy Program (FAP), but no conclusion was reached regarding the alleged sexual abuse. Id.

On August 12, 1992, a Family Advocacy Case Review Subcommittee determined that sexual abuse was "substantiated." Id. at 4. Relying on the subcommittee's findings, the FAP recommended Plaintiff be processed for separation given his commission of a serious sexual perversion, and on April 28, 1993, an administrative discharge board approved the recommendation, and Plaintiff was thereafter separated from the Navy. Id. During Plaintiff's subsequent divorce proceedings, the court granted Plaintiff's petition for divorce and concluded that the alleged child abuse had not been shown and that the allegations arose from a bitter custody battle. Id. at 5. The court then imposed no restrictions on Plaintiff's unsupervised visitation rights. Id. Plaintiff thereafter requested independent reviews of his case by several doctors, who found that the initial determinations of sexual abuse were flawed and that "there was a strong possibility that Plaintiff did not sexually abuse his daughter." Id.

On April 13, 1995, Plaintiff submitted a request to the BCNR seeking a discharge upgrade to "honorable," reinstatement to the Navy, back pay, credit for time lost due to his adverse discharge, promotion, and the opportunity to finish his career. Id. at 5-6. In support of his application, Plaintiff submitted his polygraph reports, police reports, doctors' evaluations, the divorce decree, and numerous letters of character reference. Id. at 6. On June 3, 1997, the BCNR issued its decision, which granted partial relief, including correcting Plaintiff's discharge to honorable, suspending his grade reduction, and removing or expunging any material or entry inconsistent with the Board's recommendation from Plaintiff's record. Id. at 7-8. In September 1999, Plaintiff was allowed to re-enlist in the Navy. Id. at 9. He retired in April 2006. Id. at 16.

In the intervening years, Plaintiff attempted to have his name and information related to child abuse removed from the Navy Central Registry. Id at 10-11. He ultimately made another formal application in May 2007 to the BCNR seeking, among other things, removal of his name, promotion, and retroactive reenlistment. Id. His application was denied on June 16, 2008. Id. at 18. Plaintiff's name was finally removed from the registry on June 26, 2008, after Assistant General Counsel Robert T. Cali found that the BCNR's earlier recommendation was "untenable" and ordered the removal. Id. The Board, however, has not otherwise corrected Plaintiff's record. Id. at 18-19. Plaintiff thus filed this case on July 12, 2011, seeking additional corrections of his record, as well as retroactive reenlistment and promotion. Defendant has now filed a Motion to Dismiss.

II.Legal Standard

In evaluating Defendant's Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) and 12(b)(1), the Court must "treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). This standard governs the Court's considerations of Defendant's Motion under both Rules 12(b)(1) and 12(b)(6). See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader"); Walker v. Jones, 733 F.2d 923, 925-26 (D.C. Cir. 1984) (same). The Court need not accept as true, however, "a legal conclusion couched as a factual allegation," nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986) (internal quotation marks omitted).

To survive a motion to dismiss under Rule 12(b)(1), Plaintiffs bear the burden of proving that the Court has subject matter jurisdiction to hear their claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000). A court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority." Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, "'the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens, 402 F.3d at 1253; see also Venetian Casino Resort, L.L.C. v. E.E.O.C., 409 F.3d 359, 366 (D.C. Cir. 2005) ("given the present posture of this case -- a dismissal under Rule 12(b)(1) on ripeness grounds -- the court may consider materials outside the pleadings"); Herbert v. Nat'l Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).

III.Analysis

Defendant makes two principal arguments in his Motion: first, all of Plaintiff's causes of action are barred by the applicable statute of limitations, see Mot. at 6-9, and second, Plaintiff's claims for retroactive reenlistment and promotion are non-justiciable. Id. at 9-12. The Court will deal with ...


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