Case 3:12-cv-01578-WWE Document 39 Filed 02/04/14 Page 1 of 10

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT WILLIAM P. DOLPHIN, Plaintiffs, v. JOHN MCHUGH, SECRETARY OF THE ARMY, Defendant. : : : : : : : :

3:12-cv-1578 (WWE)

MEMORANDUM OF DECISION ON DEFENDANTS MOTION TO DISMISS In this action, plaintiff William Dolphin challenges the Army Board for the Correction of Military Records (ABCMR) failure to review his discharge upgrade application submitted in 2011. Specifically, he alleges, pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 706(2)(A), unlawful imposition of a non-waivable statute of limitations (count one); arbitrary and capricious refusal to waive the statute of limitations (count two); and arbitrary and capricious refusal to upgrade his discharge status (count three). Defendant has filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. BACKGROUND For purposes of ruling on a motion to dismiss, the Court accepts all allegations of the complaint as true. The Court also includes facts herein that are reflected in exhibits that are integral to the allegations of the complaint. See Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 46 (2d Cir. 1991). Plaintiff was born in 1948, and he joined the United States Army on May 9, 1967.

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On October 23, 1967, he was deployed in Vietnam as an infantry rifleman. Plaintiff participated in intense combat operations, including clearing bunkers and patrolling the countryside. In 1968, plaintiff was severely injured in a firefight with enemy soldiers. At that time, he climbed a tree to identify the enemys position. He was blown out that tree and awoke on the ground unable to feel or move his limbs. He was evacuated from the battlefield to a field hospital in Vietnam before being transferred to hospitals in Japan, Alaska and Queens, New York. In error, the Army informed plaintiffs mother that he had been killed in action and gave her the Purple Heart that it had awarded her to son. While at the hospital in Queens, plaintiff experienced flashbacks and suffered insomnia due to nightmares. He remembers that he was informed by hospital staff that he could return home on convalescent leave. However, plaintiff continued to suffer from pain, memory loss and depression. On two or three occasions, he returned from Connecticut to the military hospital for additional treatment. He returned home to Connecticut after each visit. In 1974, FBI agents arrested plaintiff at his house in Connecticut and he was referred to a general court martial. Plaintiff does not remember receiving a notice of his AWOL status. Plaintiff received a bad conduct discharge from the Army on January 30, 1975, which discharge was later changed to a clemency discharge by Proclamation 4313. Military doctors had diagnosed plaintiff with physical and psychological problems but the medical community did not then recognize Post Traumatic Stress Disorder (PTSD). PTSD was recognized as a psychiatric injury in 1980. 2

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In 1994, plaintiff, proceeding pro se, submitted his first ABCMR application for a discharge upgrade. He represented that his discharge was a result of injuries and undiagnosed PTSD and that his life continues to be disrupted by severe wounds received in Vietnam. He stated further that [t]reatment for service-connected injuries and PTSD is draining veteran[s] resources. Plaintiff did not submit any supporting evidence or other documents with his application. On September 28, 1994, ABCMR rejected plaintiffs application as time-barred by the three-year statute of limitations. ABCMR had discretion to waive the statute of limitations in the interest of justice, but it found that plaintiff should have discovered his undiagnosed PTSD in 1975. In its letter to plaintiff, ABCMR stated that there would be a basis for reconsideration if plaintiff could present newly discovered relevant evidence that was not available for consideration by the Board when it denied [his] application. The letter did not specify any time limit for submitting this new evidence. In 2010, plaintiff, still proceeding pro se, submitted a second application that was rejected by ABCMR staff without any consideration because his military records were on loan to another agency. The rejection letter instructed: If you have requested information from another agency, please wait approximately 60 days . . . before submitting another application. Otherwise, please wait approximately 90 days to submit a new [application for Correction of Military Records] to the ABCMR. We have enclosed a new [application for Correction of Military Records] for your use. In 2011, plaintiff submitted an application to ABCMR with newly discovered evidence, including a psychiatric report based on in depth interviews, memory loss evaluation and diagnoses of various psychiatric disorders stemming from injuries 3

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sustained in Vietnam. Previously undiagnosed disorders included chronic PTSD, panic disorder with agoraphobia, mood disorder due to chronic pain with depressive features, insomnia related to mood disorder, and cognitive disorder not otherwise specified. The psychiatric report stated that plaintiff had likely experienced Traumatic Brain Injury as a result of his injuries from the explosion. The application also included new evidence such as letters from doctors and therapists from 2011 indicating that plaintiff suffered from seizures and memory damage, was not competent to handle issues surrounding his discharge, and may not be employable as a result of such problems. In 2012, ABCMR staff returned plaintiffs application to him without review of the merits. The rejection letter stated that a request for reconsideration would not be considered if submitted more than one year after ABCMRs original decision regardless of whether the submission contained new evidence; the letter instructed that any further requests for reconsideration would not be considered. On November 8, 2012, plaintiff filed this complaint. DISCUSSION The existence of subject matter jurisdiction is a threshold inquiry and a claim is properly dismissed for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. Morrison v. National Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). The party asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The function of a motion to dismiss is merely to assess the legal feasibility of the 4

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complaint, not to assay the weight of the evidence which might be offered in support thereof. Ryder Energy Distrib. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). When deciding a motion to dismiss, the Court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the pleader. Hishon v. King, 467 U.S. 69, 73 (1984). The complaint or counterclaim must contain the grounds upon which the claim rests through factual allegations sufficient to raise a right to relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The pleader is obliged to amplify a claim with some factual allegations to allow the court to draw the reasonable inference that the defendant is liable for the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Subject Matter Jurisdiction Defendant argues that plaintiffs action is time-barred under 28 U.S.C. 2401(a), which provides that every civil action commenced against the United States shall be barred unless the complaint is filed within the six years after the right of action first accrues. Defendant posits that plaintiff is making a direct challenge to his 1975 discharge characterization. Defendant asserts that the cause of action to change his discharge characterization became time-barred on January 30, 1981. Generally, Second Circuit courts have interpreted the time limitation of Section 2401 as jurisdictional. In re Agent Orange Prod Liability Litig., 818 F.2d 210, 214 (2d Cir. 1987); Air India v. Brien, 261 F. Supp. 2d 134, 137 (E.D.N.Y. 2003). The majority of courts hold that the statute of limitations for seeking APA review of agency action runs from the date of the final agency decision rather than the date that the underlying 5

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discharge occurred. Schwalier v. Panetta, 839 F. Supp. 2d 75, 82 (D.D.C. 2012) (citing cases). This Court adopts the majority view. Defendant argues further that plaintiffs action is still time-barred because ABCMRs 1994 decision that plaintiff should have discovered his undiagnosed PTSD in 1975 represents the final agency action in this case. Plaintiff counters that his action does not seek judicial review of the 1994 decision; he clarifies that he seeks judicial review of the 2012 ABCMR rejection of his 2011 submission. The Court notes that the 1994 ABCMR letter had informed plaintiff that reconsideration was possible if he could present newly discovered relevant evidence that was not available for consideration by ABCMR when it denied his application, and that the letter provided no time limit for submission of such evidence. In this action, plaintiff now challenges the legality of ABCMRs 2012 rejection of his new evidentiary submissions based on a regulation imposing a non-waivable one-year statute of limitations that is at odds with 10 U.S.C. 1552 and prior ABCMR representations. See 32 C.F.R. 581.3(g)(4)(ii). Thus, ABCMRs 2012 rejection represents the final decision relevant to plaintiffs challenge to 32 C.F.R. 581.3(g)(4)(ii), and the Court is not barred from reviewing that action. See Mosley v. Dept. of Navy, 2011 WL 3651142, *3 (N.D.N.Y. 2011) (finding that Section 2401 did not bar challenge to unauthorized procedure applied to reject reconsideration application regarding discharge status to Board for Correction of Naval Records). To the extent that the complaint seeks review of ABCMRs rejection of plaintiffs 2011 application, the Court will deny the motion to dismiss for lack of subject matter jurisdiction. 6

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Equitable Estoppel Plaintiff argues further that defendant should be equitably estopped from refusing to consider his 2011 submission as time-barred. Specifically, plaintiff maintains that he submitted his 2011 application in reliance on representations from ABCMR that he could submit newly discovered evidence to obtain consideration of his application without a mandatory time limitation. Defendant counters that the jurisdictional bar of Section 2401(a) precludes application of the equitable estoppel doctrine. This Court recognizes that it lacks authority to create equitable exceptions to a jurisdictional requirement, Bowles v. Russell, 551 U.S. 205, 214 (2007); and that estoppel is an equitable doctrine invoked to avoid an injustice. Heckler v. Cmty. Health Servs., 467 U.S. 51, 59 (1984). As previously discussed, Section 2401(a)s time limitation is generally considered by courts within the Second Circuit to be jurisdictional. However, some courts have held otherwise. See Cedars-Sinai Medical Ctr. v. Shalala, 125 F.3d 765, 770 (9th Cir. 1997) (holding Section 2401(a) as not strictly jurisdictional); see also John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 145 (2008) (Ginsburg, J., dissenting) (noting disagreement among court decisions). Further, the Supreme Court has recently held that a limitations provision should not be treated as jurisdictional unless Congress has clearly so indicated. Sebelius v. Auburn Regl Med. Ctr., U.S. , 133 S. Ct. 817, 824 (2013); see also Sanchez v. United States, F.3d , 2014 WL 114273, 6 (1st Cir. 2014) (recognizing that Sebelius calls into question whether Section 2401(b) timeliness requirements were jurisdictional). The Court will consider arguments on whether estoppel may be properly applied in this case on a motion for summary judgment. 7

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Review of Reconsideration Request Defendant argues that plaintiff has failed to state a claim for APA review on the basis of a motion for reconsideration. Defendant maintains that plaintiff should not be allowed to circumvent Section 2401's time limitation through later filings. Pursuant to the APA, the Court may only overturn agency action if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; [or] in excess of statutory jurisdiction, authority, or limitations, or short of statutory right 5 U.S.C. 706(2). District courts have reviewed similar claims concerning the imposition of a military record corrections boards regulatory procedure to a reconsideration request based on new evidence. See Mosley, 2011 WL 3651142; Lipsman v. Secretary of the Army, 335 F. Supp. 2d 48, 51 (D.D.C. 2004) (reviewing on summary judgment whether ABCMRs regulation applied to request for reconsideration violated statutory authority; prior motion to dismiss for lack of standing and failure to state a claim had been denied). The relevant statute, 10 U.S.C. 1552, provides that any military record may be corrected in the event of an error to remove an injustice. Section 1552(b) provides: No correction may be made . . . unless the claimant or his heir or legal representative files a request for the correction within three years after he discovers the error or injustice. However, [ABCMR] may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice. Meanwhile, the challenged regulation, 32 C.F.R. 581.3(g)(4)(ii), requires rejection of the reconsideration request if it is submitted one year after the ABCMRs original decision. The complaint alleges that plaintiff received a denial of his first application to ABCMR and that the denial letter 8

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indicated that reconsideration of new evidence would be allowed but set forth no time limit for such reconsideration. Plaintiffs 2011 submission was summarily rejected based on the mandatory time limit set forth in the challenged regulation. Construing the allegations of the complaint most liberally in favor of plaintiff, the Court finds that he has set forth a plausible claim for APA review of the rejection of his 2011 reconsideration request. Plaintiff argues further that plaintiffs 2011 submission to ABCMR should be considered to be a new application rather than a request for reconsideration as characterized by ABCMR. Plaintiff points out that Section 1552 provides no distinction between new applications and requests for reconsideration. Defendant counters that plaintiffs 2011 submission requested the same relief as his prior application. On a motion for summary judgment, the Court will consider whether plaintiffs 2011 application may be considered a new application. Claim for Upgrade In Service Characterization Defendant argues that plaintiffs effort to seek an upgrade in his service characterization is foreclosed regardless of whether he obtains ABCMR review because his discharge was adjudged as part of a court-martial. Plaintiff counters that he requests an upgrade of his court-martial sentence pursuant to the clemency authority of the ABCMR. See Cossio v. Donley, 527 Fed. Appx. 932, 935 (Fed. Cir. 2013), cert. denied, 134 S. Ct. 801 (2013); 10 U.S.C. 1552(f)(2). Defendant responds that plaintiff cannot obtain further review of a subjective judgment on clemency. In this instance, plaintiff has sought ABCMR review of new evidentiary material, including diagnoses of disorders that had not been previously diagnosed. Plaintiff is not 9

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seeking ABCMR to reconsider its prior decision based on a record identical or even similar to his prior applications. Accordingly, construing all facts in favor of plaintiff, the Court finds that he could plausibly obtain the upgrade he seeks in the event that plaintiffs application is remanded to ABCMR. Thus, plaintiffs action should not be dismissed for failure to state a claim. CONCLUSION For the foregoing reasons, the motion to dismiss [doc. #14] is DENIED.

Dated at Bridgeport, Connecticut, this ___31st_____ day of January 2014.

/s/ Warren W. Eginton Senior United States District Judge

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