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Shinogee v. Fanning

United States District Court, District of Columbia

January 13, 2017

EDWARD SHINOGEE, by his guardian, Thomas Duffy, Plaintiff,
v.
ERIC K. FANNING, Secretary of the Army, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON United States District Judge.

         The 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, [1]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.

         I. BACKGROUND

         On 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. Id.

         In 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.

         The 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.

         In June 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.[2] 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.

         II. STANDARD OF REVIEW

         Federal 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).

         In 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)).

         III. ANALYSIS

         28 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., dissenting)).

         Section 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.

         The 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 ...


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