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Chenault v. McHugh

United States District Court, District Circuit

September 27, 2013

THE HONORABLE JOHN MCHUGH. Secretary of the Army. Defendant.


BERYL A. HOWELL, District Judge.

The plaintiff, Harry Chenault, has tried to obtain a retroactive promotion to Major from the United States Army for more than twenty years. See Compl. ¶ 6, ECF No. 1. He has been before Army review boards multiple times and now petitions this Court to "declare the decision of the Army Board for Correction of Military Records... denying relief to the plaintiff to have been in error." Compl. at 1. Pending before the Court is the defendant's Motion to Dismiss, ECF No. 9, for lack of subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). For the reasons set forth below, the defendant's motion is GRANTED.


The plaintiff is a former active duty United States Army officer who was denied promotion to Major in 1986. Compl. ¶¶ 3, 8-9.[1] The plaintiff claims his non-promotion was based on the absence of an Officer Efficiency Report ("OER") from his file when it was reviewed by a Special Selection Board ("SSB"). See id. ¶¶ 8-9. The plaintiff challenged his original OER for the first time in 1987 and succeeded in having an unfavorable OER removed from his Official Military Personnel File ("OMPF"). See Appendix ("App.") at 8, ECF No. 9-2. ("In September 1987... [h]is OER as a company commander was accordingly deleted from his Official Military Personnel File."). Following this challenge, he was again reviewed for promotion to Major but he was not successful. Id. The plaintiff was discharged from the Army on September 29, 1987. Id.

In May 1989, the plaintiff applied for the second time to the Army Board for Correction of Military Records ("ABCMR" or "the Board") to be restored to active duty and promoted to Major, but his application was denied. Id. In October 1989, he applied for the third time to the ABCMR for reconsideration of the Board's May 1989 decision. Id. The plaintiff was reconsidered for promotion at that time and, again, his promotion was denied. App. at 8-9.

Nearly ten years later, on June 22, 1997, the plaintiff for the fourth time applied to the ABCMR alleging "unjust influence" at the ABCMR in 1989 and that his "command OER" had not been placed in his file. App. at 2. On September 29, 1999, the plaintiff appeared before the ABCMR, seeking "to have a reconstituted... OER placed into his... OMPF for consideration by a... SSB... for promotion selection to Major" but was denied relief. Compl. ¶¶ 5, 10. The ABCMR found that the plaintiff's records as constituted did not "contain sufficient error to warrant further promotion reconsideration, " concluding that his military file had already been amended and, in 1989, placed before an SSB, which then denied promotion. App. at 11. The plaintiff was notified of this decision by letter dated December 21, 1999. Id. at 13.

After this fourth unsuccessful attempt at being considered for promotion to major with a reconstituted OER, and nearly ten years later, on May 24, 2009, the plaintiff applied for the fifth time to the ABCMR "alleging the same error by the ABCMR" as he had in 1997, and requesting essentially the same relief, namely that he "be placed before a [SSB] for consideration for promotion to Major for 1985 and 1986 [and at] the above requested SSB [his] reconstituted OER... be placed in [his] record for consideration." App. at 15. The plaintiff also requested other forms of relief in addition to those he had requested in earlier applications. App. at 18-19. The ABCMR again denied him relief by letter dated December 18, 2009. Id. at 24.

The plaintiff tried to appeal for a sixth time on June 28, 2010, this time through counsel, and "sought to reassert the position that the September 29, 1999, decision of the ABCMR was grounded in the myth that the reconstituted OER was placed in Plaintiff's OMPF and that an SSB occurred." Pl.'s Mem. Opp'n to Def.'s Mot. Dismiss ("Pl.'s Opp'n") at 3, ECF No. 10. The plaintiff also said the Board mischaracterized the 2009 decision as a "request for reconsideration." App. at 25. The Director of the ABCMR responded to the plaintiff on January 24, 2011, and noted the ABCMR was "returning your request without action, " citing the one-year limit for requests for reconsideration for ABCMR matters that had not been previously reconsidered as prohibiting any further consideration by the ABCMR. App. at 29-30. The Director's letter set forth the plaintiff's numerous appeals, characterizing all of them as "reconsiderations" of prior cases. Id. at 29.

On May 21, 2012, approximately twenty-five years after the plaintiff was discharged from the Army and twenty-three years after his first appeal was denied, the plaintiff filed the instant complaint before this court alleging a violation of the Administrative Procedure Act ("APA"), 5 U.S.C. § 702 et seq. Compl. ¶ 1. He seeks the same relief he has already sought six times from the ABCMR, namely: "the insertion of the reconstituted OER into Plaintiff's OMPF" and an "order that Plaintiff's records with the reconstituted OMPF go before an SSB for promotion consideration to Major...." Compl. ¶ 21. The defendant moved to dismiss for lack of subject matter jurisdiction, citing the six year statute of limitations that applies to this case. This motion is now pending before the Court.


"Federal courts are courts of limited jurisdiction, ' possessing only that power authorized by Constitution and statute.'" Gunn v. Minton, 133 S.Ct. 1059, 1064 (-) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Indeed, Federal courts are "forbidden... from acting beyond our authority, " NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), and, therefore, have "an affirmative obligation to consider whether the constitutional and statutory authority exist for us to hear each dispute.'" James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996) (quoting Herbert v. National Academy of Sciences, 974 F.2d 192, 196 (D.C. Cir. 1992)).

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiff must establish the court's jurisdiction over the subject matter by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). When considering a motion under Rule 12(b)(1), the court must accept as true all uncontroverted material factual allegations contained in the complaint and "construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged and upon such facts determine jurisdictional questions." Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (internal citations and quotation marks omitted). The court need not accept inferences drawn by the plaintiff, however, if those inferences are unsupported by facts alleged in the complaint or amount merely to legal conclusions. See Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In evaluating subject-matter jurisdiction, the court, when necessary, may look beyond the complaint to "undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Herbert, 974 F.2d at 197.


The plaintiff brought the instant action under the APA, see Compl., ¶ 1, which provides for judicial review of "final agency action." 5 U.S.C. § 704. Unless another statute prescribes otherwise, suits such at the instant one challenging final agency action pursuant to § 704, are subject to the statute of limitations set out in 28 U.S.C. § 2401(a), which requires that the action be commenced within six years after the right of action first accrues. See Harris v. FAA, 353 F.3d 1006, 1009-1010 (D.C. Cir. 2004). "Compliance with the limitations period is a condition of federal court jurisdiction." Kendall v. Army Bd. for Correction of Military Records, 996 F.2d 362, 366 (D.C. Cir. 1993). This Circuit has cautioned that "[u]nlike an ordinary statute of limitations, § 2401(a) is a jurisdictional condition attached to the government's waiver of sovereign immunity, and as such must be strictly construed." Spannaus v. ...

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