United States District Court, District of Columbia
EUGENE C. SMALLS, Plaintiff,
RICHARD V. SPENCER, Secretary of the Navy, Defendant.
MEMORANDUM OPINION AND ORDER
TIMOTHY J. KELLY United States District Judge.
Eugene Smalls, proceeding pro se, has filed a motion
for leave to file a second amended complaint. ECF No. 24
(“2d Mot. Am.”). For the reasons stated herein,
his motion is GRANTED. The second amended
complaint, ECF No. 24-1 (“2d Am. Compl.”), shall
be deemed filed as of September 25, 2017. As a result,
Defendant's motion to dismiss the first amended
complaint, ECF No. 14 (“Mot. Dismiss”), is
DENIED AS MOOT.
Federal Rule of Civil Procedure 15(a)(2), if a party may no
longer amend its pleading as of right, then that “party
may amend its pleading only with the opposing party's
written consent or the court's leave, ” and
“[t]he court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). “The decision
to grant or deny leave to amend . . . is vested in the sound
discretion of the trial court.” Doe v.
McMillan, 566 F.2d 713, 720 (D.C. Cir. 1977). But
“it is an abuse of discretion to deny leave to amend
unless there is sufficient reason, such as undue delay, bad
faith or dilatory motive, repeated failure to cure
deficiencies by previous amendments, or futility of
amendment.” United States ex. rel Shea v. Verizon
Commc'ns, Inc., 160 F.Supp.3d 16, 29 (D.D.C. 2015)
(quoting Firestone v. Firestone, 76 F.3d 1205, 1208
(D.C. Cir. 1996)). “Generally, under Rule 15(a) the
non-movant bears the burden of persuasion that a motion to
amend should be denied.” Johnson v. District of
Columbia, No. 13-cv-1445 (JDB), 2015 WL 4396698, at *2
(D.D.C. July 17, 2015) (citing Dove v. WMATA, 221
F.R.D. 246, 247 (D.D.C. 2004)).
1986, the Board for Correction of Naval Records
(“BCNR”) denied Smalls' request to change his
1980 discharge from the Marine Corps to a medical disability
retirement, which would have entitled him to certain military
retirement benefits. Smalls subsequently petitioned the BCNR
for reconsideration and was denied relief in 1992, 2000, and
2016. See 2d Am. Compl., Ex. 1 at 31-33 (“2016
BCNR Dec.”). Smalls now seeks to amend his complaint to
clarify that under the Administrative Procedure Act
(“APA”), he is challenging the BCNR's 2016
decision. 2d Mot. Am. at 2. He asserts that this decision
constituted a reopening of his case. See 2d Am.
Compl. ¶¶ 11, 15, 21, 32, 44-45, 48, 51, 57;
see also 2d Mot. Am. at 1 (“[T]he issues [are]
quite different based on an application that the Board
reopen[ed] for review on the merit[s], which was never
properly before them in [previous] request[s].”).
his second amended complaint, Smalls appears to
“fine-tune the legal and factual basis for the relief
[sought], ” which “should benefit [Defendant] by
providing [it] with greater notice of what [his] claims are
and the grounds upon which they rest.” Council on
American-Islamic Relations Action Network, Inc. v.
Gaubatz, 793 F.Supp.2d 311, 326 (D.D.C. 2011). Such
fine-tuning “certainly does not provide a basis for
denying leave to amend.” Id. at 324. Moreover,
“[t]he practice of freely giving leave to amend is
particularly appropriate” where pro se
litigants are concerned. Kidd v. Howard Univ. Sch. of
Law, No. 06-cv-1853 (RBW), 2007 WL 1821159, at *2
(D.D.C. June 25, 2007) (citing Wyant v. Crittenden,
113 F.2d 170, 175 (D.C. Cir. 1940)). “Pro se
litigants are afforded more latitude than litigants
represented by counsel to correct defects in . . .
pleadings.” Id. (quoting Moore v.
USAID, 994 F.2d 874, 876-77 (D.C. Cir. 1993)).
sole objection to Smalls' motion for leave to file a
second amended complaint is that the amendment would be
futile. ECF No. 30 (“Opp.”) at 1. Amending a
complaint is futile “if the proposed claim would not
survive a motion to dismiss.” Williams v. Lew,
819 F.3d 466, 471 (D.C. Cir. 2016) (internal quotation marks
omitted). In other words, “[f]or practical purposes,
review for futility is identical to that for a Rule 12(b)(6)
motion to dismiss.” Johnson, 2015 WL 4396698,
at *3 (citing Driscoll v. George Wash. Univ., 42
F.Supp.3d 52, 57 (D.D.C. 2012)). In support of this argument,
Defendant simply incorporates by reference the arguments in
its earlier-filed Rule 12(b)(6) motion to dismiss the first
amended complaint. See Opp. at 1. And in that
motion, Defendant's primary argument was that Smalls'
“current claim before this court, like previous
iterations” filed in federal court, was barred by res
judicata because it “stems from the same underlying
‘transaction'” that was already adjudicated:
his “discharge from the Marine Corps in 1980.”
Mot. Dismiss at 5; see Id. at 3 (citing Smalls
v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006)).
Critically, however, Defendant does not explain why
Smalls' 2016 BCNR decision was not a new final agency
action subject to an independent challenge under the APA.
well established that “‘where an agency has
reopened a previously considered issue anew' upon
application for reconsideration, ‘the reopening
doctrine allows an otherwise stale challenge to
proceed.'” Peavy v. United States, 128
F.Supp.3d 85, 99 (D.D.C. 2015) (quoting Chenault v.
McHugh, 968 F.Supp.2d 268, 272 (D.D.C. 2013)); see
Nat'l Resources Def. Council v. EPA, 571 F.3d 1245,
1265 (D.C. Cir. 2009). “‘[W]hen the agency has
clearly stated or otherwise demonstrated' that it has
reopened the proceeding, ” the “resulting agency
decision [will] be considered a new final order subject to
judicial review under the usual standards.”
Peavey, 128 F.Supp.3d at 99-100 (quoting Sendra
Corp. v. Magaw, 111 F.3d 162, 167 (D.C. Cir. 1997)).
That the agency ultimately reached the same result is of no
moment, because “[a]n agency may be found to have
reopened the case and issued a new and final order
‘even though the agency merely reaffirms its original
decision.'” Id. at 100 (quoting Sendra
Corp., 111 F.3d at 167). Moreover, “if an agency
denies a petition for reconsideration alleging ‘new
evidence' or ‘changed circumstances, ' the
agency's denial is reviewable as a final agency
action.” Id. (quoting Sendra Corp.,
111 F.3d at 166).
the 2016 BCNR decision suggests that Smalls' case was
reopened. Although the decision itself was relatively brief,
the Board states that Smalls' case “was
reconsidered . . . by a three-member panel, ” that it
considered the “entire record” including
“the new medical evidence . . . provided, ” and
that “this matter is considered a final action.”
2016 BCNR Dec. To be sure, it is possible that upon filing a
new motion to dismiss, Defendant may be able to show that the
2016 BCNR decision was not a new agency action and is
therefore barred by res judicata. But on the record presently
before it, the Court cannot find that Smalls' proposed
amendment is futile.
result, the Court will allow Smalls to file his second
amended complaint, which will become the operative complaint.
See Nat'l City Mortg. Co. v. Navarro, 220 F.R.D.
102, 106 (D.D.C. 2004) (noting while granting leave to amend
a complaint that the “amended complaint is now the
operative complaint”). Accordingly, Defendant's
motion to dismiss the first amended complaint will be denied
as moot. See Johnson, 2015 WL 4396698, at *5
(denying as moot the defendants' motion to dismiss the
original complaint on the basis that the amended complaint
supersedes the original complaint).
Conclusion and Order
foregoing reasons, Smalls' motion (ECF No. 24) is
GRANTED. His second amended complaint (ECF
No. 24-1) shall be deemed filed as of September 25, 2017.
Further, in light of the filing of the second amended
complaint, Defendant's motion to dismiss the first
amended complaint (ECF No. 14) is DENIED AS
MOOT. Defendant shall file a response to the second
amended complaint by April 5, 2018.