United States District Court, District of Columbia
B. WALTON United States District Judge.
plaintiff, Edward Shinogee, by his guardian, Thomas Duffy,
seeks a declaratory judgment under the Administrative
Procedure Act (“APA”), 5 U.S.C. §§
701-706 (2012), as relief for his challenge to a 2004
decision by the Army Board for Correction of Military Records
(the “Board”) that returned without action the
plaintiff's request for reconsideration of his effort to
upgrade his military discharge characterization. See
Amended Complaint for Declaratory Relief (“Am.
Compl.”) ¶¶ 13, 20-24, 28, 36-39. Currently
before the Court is the Defendant's Motion to Dismiss
(“Def.'s Mot.”) and the Plaintiff's
Motion for Oral Argument (“Pl.'s Mot. for
Conf.”). Upon careful consideration of the parties'
submissions, the Court concludes that it must grant the
defendant's motion to dismiss this action for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1) and deny as moot the plaintiff's
request for oral argument.
April 12, 1985, the plaintiff, a Private Second Class member
of the United States Army, Am. Compl. ¶ 1, was
“admitted as a psychiatric inpatient after [being]
diagnosed with ‘Schizophreniform Disorder' . . .
[and] was prescribed anti-psychotic medication, ”
id. ¶ 8. Nine days later, the plaintiff was
referred for court-martial for possession and intent to
distribute marijuana. Id. ¶ 10. After the
plaintiff “went AWOL[-absent without leave-]from the
Army's mental hospital from May 9 to 19[, ] . . . the
AWOL charge was added to the drug charges.”
Id. The Army's Sanity Board determined that the
plaintiff (1) was criminally accountable for the drug
offenses, which had allegedly occurred before the plaintiff
was diagnosed with Schizophreniform Disorder, (2) “was
not accountable for the AWOL, ” and (3) “was now
competent to stand trial.” Id. ¶ 12. On
August 2, 1985, the plaintiff “submitted a request for
an administrative discharge in lieu of trial.”
Id. ¶ 13. The Army approved the plaintiff's
request and discharged him on August 23, 1985, with a service
characterization that his discharge was other than honorable.
early 1986, the plaintiff was diagnosed with schizophrenia.
Id. ¶ 15. Although he was awarded disability
benefits from the Social Security Administration based on his
schizophrenia diagnosis, id., ¶ 16, the
Veterans' Administration “repeatedly denied [the
plaintiff] service-connection and disability compensation for
the schizophrenia, and other disabilities, because of the
disqualifying [other than honorable discharge], ”
id. ¶ 17. In 2003, however, the Board of
Veterans' Appeals determined that the plaintiff was
eligible for benefits after the Veterans' Administration
amended its regulations regarding “its
‘insanity' exception entitling dishonorably
discharged veterans to disability compensation
benefits.” Id. ¶¶ 25, 27.
plaintiff filed an application for reconsideration with the
Board in 2003 to upgrade his discharge characterization and
to receive disability benefits based on the Board of
Veterans' Appeals' decision. Id. ¶ 28.
In response, on December 16, 2004, the Board sent the
plaintiff a letter stating that “no further action may
be taken on [his] request” because (1) the Board
received the plaintiff's request more than one year after
the Board's prior action, and (2) the Board had
previously reconsidered the matter. See id.
2004, the Veterans' Administration had “adjudicated
that [the plaintiff] was incompetent to handle his financial
and personal affairs, ” id. ¶ 29, and
from 2004 through 2012, the plaintiff experienced a cycle of
homelessness, drug addiction, criminal activity, and
hospitalization, id. ¶¶ 29-34; see
also Pl.'s Opp'n, Exhibit (“Ex.”) B
(Declaration of Thomas Duffy (“Duffy
Declaration”) ¶¶ 2-3. Consequently, the
plaintiff was involuntarily “committed to the Division
of Mental Health” because of “a mental
illness” by a Utah state court for most of 2011 and
through approximately the first half of 2012. See
Am. Compl. ¶¶ 33-34; see also Pl.'s
Opp'n, Ex. A (excerpts from the plaintiff's
Veterans' Administration medical records and mental
health court commitment records (“Plaintiff's
Records”) at 5, 12, 13, 15, 17, 21); id., Ex.
B (Duffy Declaration) ¶ 3. On May 23, 2012, Thomas
Duffy, the plaintiff's brother, was appointed as the
plaintiff's conservator and guardian. Def.'s Reply,
Appendix (“App.”) at ¶ 32-33; Pl.'s
Opp'n, Ex. B (Duffy Declaration) ¶ 1. The
plaintiff's brother, on the plaintiff's behalf, then
filed a complaint in this Court on December 29, 2015,
see Complaint at 1, and filed an Amended Complaint
on the plaintiff's behalf on April 14, 2016, see
Am. Compl. at 1.
STANDARD OF REVIEW
district courts are courts of limited jurisdiction,
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
377 (1994), and “[a] motion for dismissal under
[Federal Rule of Civil Procedure] 12(b)(1) ‘presents a
threshold challenge to the court's jurisdiction,
'” Morrow v. United States, 723 F.Supp.2d
71, 75 (D.D.C. 2010) (Walton, J.) (quoting Haase v.
Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, a
district court is obligated to dismiss a claim if it
“lack[s] . . . subject matter jurisdiction.”
Fed.R.Civ.P. 12(b)(1). Because “it is presumed that a
cause lies outside [a federal court's] limited
jurisdiction, ” Morrow, 723 F.Supp.2d at 76
(alteration in original) (quoting Kokkonen, 511 U.S.
at 377), the plaintiff bears the burden of establishing by a
preponderance of the evidence that a district court has
subject matter jurisdiction, see Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992).
deciding a motion to dismiss for lack of subject matter
jurisdiction, the district court “need not limit itself
to the allegations of the complaint.” Grand Lodge
of the Fraternal Order of Police v. Ashcroft, 185
F.Supp.2d 9, 14 (D.D.C. 2001). Rather, “a court may
consider such materials outside the pleadings as it deems
appropriate to resolve the question [of] whether it has
jurisdiction [over] the case.” Scolaro v. D.C. Bd.
of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C.
2000); see also Jerome Stevens Pharms., Inc. v. FDA,
402 F.3d 1249, 1253 (D.C. Cir. 2005). Additionally, a
district court must “assume the truth of all material
factual allegations in the complaint and ‘construe the
complaint liberally, granting [the] 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 [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.” Grand Lodge, 185
F.Supp.2d at 13-14 (quoting Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 1350
(3d ed. 1998)).
U.S.C. § 2401(a) provides, in relevant part, that a
“civil action commenced against the United States shall
be barred unless the complaint is filed within six years
after the right of action first accrues.” However, the
statute states that “[t]he action of any person under
legal disability . . . at the time the claim accrues may be
commenced within three years after the disability
ceases.” Id. Section 2401(a) applies to an APA
claim, which “‘first accrues, ' within the
meaning of § 2401(a), as soon as (but not before) the
person challenging the agency action can institute and
maintain a suit in court.” Spannaus v. U.S.
Dep't of Justice, 824 F.2d 52, 56 (D.C. Cir. 1987)
(quoting 28 U.S.C. § 2401(a)). In Spannaus, the
District of Columbia Circuit noted 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.” Id. at 55; see also P & V
Enters. v. U.S. Army Corps of Eng'rs, 516 F.3d 1021,
1026 (D.C. Cir. 2008) (affirming Spannaus). As a
result, § 2401(a) is “not subject to waiver or
equitable tolling.” Appalachian Voices v.
McCarthy, 989 F.Supp.2d 30, 42 (D.D.C. 2013) (Walton,
J.) (quoting John R. Sand & Gravel Co. v. United
States, 552 U.S. 130, 140 (2008) (Stevens, J.,
2401(a) “originated in the Tucker Act, ”
Howard v. Pritzker, 775 F.3d 430, 436 (D.C. Cir.
2015), which contains a nearly identical provision regarding
legal disability, see 28 U.S.C. § 2501
(“A petition on the claim of a person under legal
disability . . . at the time the claim accrues may be filed
within three years after the disability ceases.”);
see also Havens v. Mabus, 759 F.3d 91, 96 (D.C. Cir.
2014) (noting that 28 U.S.C. § 2501 is “the Tucker
Act's jurisdictional, six-year statute of
limitations”). Like § 2401(a), § 2501 is a
“jurisdictional, ” “more absolute, kind of
limitations period.” John R. Sand & Gravel
Co., 552 U.S. at 134.
defendant argues that the plaintiff's amended complaint
should be dismissed because it is time-barred under §
2401(a). See Def.'s Mem. at 1; Def.'s Reply
at 1. The parties agree that the plaintiff's claim
accrued on December 16, 2004, when the Board denied his
request for reconsideration, and thus the six-year statute of
limitations expired, unless properly tolled for some reason,
on December 16, 2010. See Pl.'s Opp'n at 4;
Def.'s Mem. at 6. The plaintiff argues that he “was
under a continuing legal disability” “from
mid-2010 to early 2013, ” and thus his action was
timely filed pursuant to § 2401(a)'s legal
disability provision because it was filed “within three
years in 2015.” Pl.'s Opp'n at 4. The defendant
argues in response that the plaintiff has not demonstrated a