The opinion of the court was delivered by: Reggie B. Walton United States District Judge
James M. Lewis, the pro se plaintiff in this civil case, seeks
injunctive and declaratory relief under the Administrative Procedure
Act ("APA"), 5 U.S.C. §§ 701-706 (2006) and 28 U.S.C. § 1331 (2006),
alleging that the Secretary of the Navy (the "Secretary"), the Board
for Correction of Naval Records (the "Board"), and W. Dean Pheiffer,
Executive Director of the Board,*fn1 violated 10
U.S.C. § 1552 (2006) by "confer[ring] adjudicatory power on staff
members who work for, but are not members of [the Board]" and allowing
them "to evaluate reconsideration requests submitted by veterans and
active [duty] members of the Navy and Marine Corps."*fn2
Complaint ("Am. Compl.") at 1.*fn3 Currently before the Court is the
defendants' motion to dismiss, Defendant's Motion to Vacate Entry of
Default; Defendant's Opposition to Plaintiff's Motion for Default
Judgment; and Defendant's Motion to Dismiss at 1, and the plaintiff's
cross-motion for summary judgment. Upon consideration of the
plaintiff's amended complaint, the defendants' motion to dismiss, and
all relevant submissions by the parties,*fn4 the Court
concludes for the reasons that follow that the defendants' motion to
dismiss must be granted.
The following facts are not in dispute and are taken from either the amended complaint or the defendant's memorandum in support of its motion to dismiss. The plaintiff enlisted in the United States Marine Corps in 1968. Def.'s Mem. at 2. Two years later, on May 22, 1970, "a general court-martial found [the p]laintiff guilty of assault with a deadly weapon and multiple specifications of disrespect, striking a non-commissioned officer, and making threats," and he was sentenced, in addition to the imposition of other sanctions, to "confinement and a bad conduct discharge" that was designated to become effective on August 27, 1971. Id. at 2-3.
After completing his term of confinement in March of 1971, the plaintiff "requested and received appellate [review] leave, during which he . . . await[ed] final appellate review and execution of the bad conduct charge." Id. at 2-3 (footnote omitted). Ultimately, the United States Court of Military Appeals denied the plaintiff's "request for review, and he was issued a bad conduct discharge effective August 27, 1971." Id. at 3. Thereafter, "in September [of] 1972, the same court, acting upon a petition for extraordinary relief, reversed [the p]laintiff's court-martial conviction for a jurisdictional defect in the court-martial," id. (citing Lewis v. United States, 45 C.M.R. 937, 937 (C.M.A. 1972)), becauseit failed "to specify the name of the judge who was requested to try the case" and thus lacked jurisdiction, Lewis, 45 C.M.R. at 937. Furthermore, on March 28, 1974, the "[p]laintiff's bad conduct discharge was administratively changed to a general discharge under honorable conditions by reason of convenience of the government, and" the plaintiff "was assigned a re-enlistment code of RE-4," Def.'s Mem. at 3, which "is the most restrictive re-enlistment code the Department of the Navy issues . . . and . . . require[s] a waiver from the service headquarters" for re-enlistment, id. at 3 n.3. Several years later, "[i]n 1983, [the p]laintiff petitioned the Naval Discharge Review Board . . . to upgrade his general discharge to an honorable discharge," but the Board denied his request after considering his "entire military record." Id. at 3.
In 1984, the plaintiff sought relief from the Board "seeking to remove evidence of his appellate leave, unfavorable re-enlistment code, and certain conduct marks from his record." Id. The plaintiff "also sought reinstatement and retroactive promotion." Id. The Board denied his requests on April 3, 1984. Id. Unsatisfied with the decision, in November of 1987, "[the p]laintiff requested reconsideration from the B[oard]." Id.
"The B[oard] reopened his case and found [that] relief was warranted." Id. Accordingly, the Board "remov[ed] service record entries reflecting the court-martial conviction as well as certain conduct marks." Id. "However, the B[oard] . . . denied [the p]laintiff's reinstatement request and found that he was not entitled to back pay or constructive service credit." Id. Finally, "the B[oard] affirmed the characterization of [his] discharge as 'general under honorable conditions' and found the RE-4 re[-]enlistment code was not erroneous or unjust." Id. at 3-4. The plaintiff was informed of the Board's decision on June 7, 1988. Id. at 4.
On May 18, 1989, the plaintiff filed suit in this court, challenging both his discharge and the Board's actions. Id. at 4. The court granted summary judgment to the Secretary in that matter, "finding that [the p]laintiff's direct challenge [of his discharge] was time-barred and that the B[oard's]" actions were not "arbitrary or capricious, [or] unsupported by substantial evidence, or erroneous in law." Id; Def.'s Reply, Exhibit ("Ex.") 1 (Administrative Record Excerpt, Lewis v. Sec'y of Navy, Memorandum Opinion (D.D.C. June 29, 1990)); Lewis v. Sec'y of Navy, No. 89-1446, 1990 WL 454624 (D.D.C. June 29, 1990)).
Approximately two years later, on April 1, 1992, the plaintiff filed a complaint in the United States Court of Federal Claims seeking judicial review "of the June 7, 1988, B[oard] decision denying his request for reinstatement, retroactive promotion, and back pay." Def.'s Mem. at 4. That court dismissed the plaintiff's complaint "finding that his claims were barred by the statute of limitations applicable to th[e] court." Id.; see Lewis v. United States, 27 Fed. Cl. 104, 107 (1992) (interpreting the six-year statute of limitations to run from the plaintiff's initial discharge in 1971).
Years later, on November 7, 2008, the plaintiff again petitioned the Board for reconsideration. Am. Compl. at 2. In addition to other documents, this petition contained "paragraphs from the Marine Corps Separation Manual that [had been] in effect at the time of the plaintiff's discharge," which the plaintiff alleges "establish[ed] that the characterization of his separation from the Marine Corps [wa]s erroneous." Id. at 3. 32 C.F.R. § 723.9 (2006) provides that the Board will review a petition for "further consideration . . . only upon presentation . . . of new and material evidence" and that "all requests for further consideration will be initially screened by the Executive Director of the Board to determine whether" such evidence has been submitted. 32 C.F.R. § 723.9; see also Am. Compl. at 2. If the Executive Director determines that such evidence has been submitted, "the request shall be forwarded to the Board for a decision," however, absent such evidence, "the applicant will be informed that his/her request was not considered by the Board because it did not" meet the requirements of the regulation. Am. Compl. at 2. In a letter dated February 3, 2009, the Director of the Board allegedly informed the plaintiff that "[a]lthough at least some of the evidence . . . submitted [wa]s new, it [wa]s not material," and reconsideration was not appropriate because "even if th[e] information was presented to the Board, the decision would inevitably be the same." *fn6 Id. at 3. The plaintiff responded in a letter asserting that the February 3, 2009 denial was based on various alleged "error[s]." Id. On March 17, 2009,the Director wrote the plaintiff again, clarifying the basis for the decision and reiterating that the plaintiff's evidence was not considered new or material, as required for reconsideration of the plaintiff's case, and stating that the plaintiff's application for reconsideration "was properly denied." Id. at 10-11.*fn7
On May 20, 2010, the plaintiff instituted this case, id. at 1, claiming that the 2009 Board decision was erroneous because 10 U.S.C. § 1552 (a)(1) requires that the correction of military records "be made by the Secretary acting through boards of civilians," id. at 1-2, and that it was improper for the Executive Director of the Board to be the sole individual to "consider and adjudicate" his request for reconsideration, id. at 11. In response, the defendant contends that the plaintiff failed to properly effect service of process, which deprives this Court of having personal jurisdiction over the defendant, Def.'s Mem. at 10-12, that this Court lacks subject matter jurisdiction because the complaint is barred by the applicable statute of limitations, id. at 12-16, and that the plaintiff has failed to state a claim upon which relief may be granted because the complaint is barred by res judicata and collateral estoppel, id. at 16-23. The defendant argues that the complaint is subject to dismissal on all of these grounds. Because the Court concludes that it lacks subject-matter jurisdiction, the defendant's other arguments for dismissal will not be addressed.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) requires the court to determine whether it has subject-matter jurisdiction over a case. See Grand Lodge of the Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14 (D.D.C. 2001). In assuming whether a court has subject-matter jurisdiction, "[t]he plaintiff bears the burden of persuasion . . . by a preponderance of the evidence." Pitney Bowes, Inc. v. USPS, 27 F. Supp. 2d 15, 19 (D.D.C. 2005); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In evaluating a motion to dismiss under 12(b)(1), the court must "assume the truth of all material factual allegations in the complaint and 'construe the complaint liberally, granting [a] plaintiff the benefit of all inferences that can be derived from the facts alleged.'" Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). However, the court is not limited to the allegations in the complaint and "may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction." Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citing Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992)).
When evaluating pro se litigants' complaints, courts are required to "hold [such pleadings] to a less stringent standard." Haines v. Kerner, 404 U.S. 519, 520 (1972). Nonetheless, even pro se plaintiffs must "act diligently" to pursue their claims within the statutorily prescribed limitation period. Cristwell v. Veneman, 224 F. Supp. 2d 54, 61 ...