The opinion of the court was delivered by: Amy Berman Jackson United States District Judge
Plaintiff William Havens brings this action against defendant Ray Mabus, in his capacity as Secretary of the Navy,*fn1 seeking review of his discharge from active duty and correction of his naval records under the Administrative Procedure Act, 5 U.S.C. Â§ 702 ("APA"). Defendant has moved to dismiss plaintiff's amended complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the alternative, for summary judgment. [Dkt. # 15]. Defendant contends that the Court lacks subject matter jurisdiction over the claims, that the statute of limitations has run, and that the doctrine of res judicata bars this action. Plaintiff has cross-moved for summary judgment in part. [Dkt. # 19]. Because the Court finds that plaintiff's claims are barred by res judicata, the Court will grant defendant's motion to dismiss under Rule 12(b)(6) and will not reach the motion for summary judgment. It will also deny plaintiff's cross-motion.
Plaintiff William Havens, a resident of Texas, seeks APA review of defendant's repeated denials of his request for correction of his naval record under 10 U.S.C. Â§ 1552 to reflect a disability retirement designation. Am. Compl. Â¶ 108. Commander Havens is a retired naval officer who served on active duty in the United States Navy Reserve ("Reserve") from March 1980 until August 1996. Id. Â¶Â¶ 3, 31, 84. He alleges that he began experiencing medical problems in 1995 while on active duty. Id. Â¶Â¶ 7--9, 11. Plaintiff was subsequently diagnosed with psoriasis and psoriatic arthritis at a naval hospital in September, 1995. Id. Â¶ 12.
In August 1996, the Reserve released plaintiff from active duty pursuant to 10 U.S.C. Â§14506 after he was not selected for promotion in two consecutive years. Id. Â¶ 22--23. Prior to his release from active duty, plaintiff was given a physical examination at Treasure Island Clinic and found to be fit for discharge. Id. Â¶Â¶ 25--27. Plaintiff claims that he requested that a medical board evaluate his disability, but the facility refused to provide an evaluation. Id. Â¶Â¶ 19--21. Plaintiff contends that this denial violated naval medical procedure and Department of Defense directives. Id. Â¶ 96. In September 1997, while on inactive duty, plaintiff was given a 40% service connected disability designation by the Department of Veterans Affairs, based on psoriasis (10%), psoriatic arthritis (20%) and undiagnosed illness (10%). Id. Â¶ 38. At the same time, in annual physicals administered in 1997, 1998, 1999, and 2000, the Navy determined that plaintiff was physically qualified for duty. Id. Â¶Â¶ 34, 45, 52, 56.
In November 1999, plaintiff filed an application before the Board for Correction of Naval Records ("BCNR") seeking a medical board evaluation to assess his physical qualifications for assuming disability retirement status. Am. Compl. Â¶ 55. In June 2000, the BCNR denied his application. Id. Â¶ 60. Plaintiff requested reconsideration of the BCNR's decision twice in 2001; both requests were denied. Id. Â¶Â¶ 70--71.
In March 2001, plaintiff submitted a request to be recalled to active duty for medical treatment. Am. Compl. Â¶ 64. But on January 2, 2002, plaintiff was evaluated by a Physical Evaluation Board and found to be unfit for active duty, and in March 2002, the Reserve transferred him to the Retired Reserve. Id. Â¶Â¶ 81, 84. Plaintiff filed a second application seeking correction of his medical records with the BCNR in 2002. Id. Â¶ 82. In 2005 he filed a third application, attaching new evidence and amending his original claims. Id. Â¶ 88. The BCNR treated both applications as requests for reconsideration and both were denied. Id. Â¶Â¶ 88--90.
Plaintiff filed a complaint in the United States Court of Federal Claims in November, 2007, and an Amended Complaint on March 13, 2008. Havens v. United States, No. 07-780 C (Ct. of Fed. Cl. 2007).*fn2 The amended complaint asserted a claim for improper release from active duty and a claim for disability retirement and severance benefits. Id. In November 2008, the Court of Federal Claims dismissed the amended complaint, holding that both of plaintiff's claims were barred by the six-year statute of limitations in the Tucker Act. Id. at 7. The court found that the statute of limitations accrued upon plaintiff's release from active duty and did not toll during plaintiff's appeals to the BCNR. Id. Plaintiff appealed to the Court of Appeals for the Federal Circuit, which affirmed the original judgment. Havens v. United States, 330 F. App'x 920 (Fed. Cir. 2009) cert. denied, 130 S. Ct. 1748, 176 L. Ed. 2d 214 (2010).
Plaintiff filed this action on November 1, 2010, seeking review and correction of his military record under the APA and an order directing the BCNR to designate him as medically retired, retroactive to either 1996 or 2002. Compl. Â¶ 99. Defendant filed a motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim upon which relief can be granted under Rule 12(b)(6). [Dkt. # 5].
On January 5, 2012, plaintiff filed an amended complaint, which, in relevant part, differs from the original complaint in the following ways: x Plaintiff asserts that "[t]his complaint should not be considered a claim for money damages under the Tucker Act, the Little Tucker Act or the Military Pay Act. Plaintiff further avers that this court does not enjoy jurisdiction under the Tucker Act." Am. Compl. Â¶ 2. x Plaintiff asserts that his severance pay was "recouped from his VA benefits as well as taxes withheld from the original severance pay . . . [and] [u]pon information and belief, any retroactive monetary benefits would be subject to recoupment due to his federal civil service worker's compensation payments." Id. Â¶Â¶ 104--05. x Plaintiff "waives his right, if any to pre-judgment retroactive monetary payments."
Id. Â¶ 106. x Plaintiff asserts that "this Court does not have the jurisdictional authority to award prospective monetary benefits and that any prospective monetary benefits must be obtained through the administrative avenues prescribed by 10 U.S.C. Â§ 1552 and 32 C.F.R. 723.10." Id. Â¶ 107.
The amended complaint contains no enumerated causes of action. It asserts generally that defendant acted arbitrarily and capriciously, in violation of the Constitution and the APA in failing to correct his record. Am. Compl. Â¶Â¶ 92--93. It seeks an order directing defendant to correct his records "to reflect that he should have been medically retired to a date as determined by this [C]court." Id. Â¶ 108.
In light of the amended complaint, the Court denied defendant's motion to dismiss the original complaint as moot. Minute Order (Jan. 10, 2012). Defendant then filed a motion to dismiss the amended complaint or, in the alternative, for summary judgment. [Dkt # 15]. Plaintiff cross-moved for summary judgment in part. [Dkt. # 19].
In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), 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) (citations omitted). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
I. Subject Matter Jurisdiction
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibly Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. Envtl. Prot. Agency, 363 F.3d 442, 448 (D.C. Cir. 2004) ("As a court of limited jurisdiction, we begin, and end, with examination of our jurisdiction."). Because "subject-matter jurisdiction is an 'Art[icle] III as well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction upon a federal court.'" Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).
When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court "is not limited to the allegations of the complaint." Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64 (1987). Rather, a court "may consider such materials outside the pleadings as it deems appropriate to resolve the question of whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. ...