Wrongful discharge from active duty

Federal District Court Opinions

CARTER v. DEPARTMENT OF NAVY, (D.C. 2006) TERRY L. CARTER,
Plaintiff, v. DEPARTMENT OF THE NAVY, et al., Defendants.
Civil Action No. 05-cv-0775 (RBW). United States District
Court, D. Columbia. August 24, 2006

MEMORANDUM OPINION

REGGIE WALTON, District Judge

Pro se plaintiff Terry L. Carter brings this action
against the Department of the Navy and the United States
Marine Corps (“the defendants”), alleging (1) wrongful
discharge from active duty based on a faulty medical
diagnosis and (2) improper failure to correct military
records, Complaint (“Compl.”) ¶¶ 1, 11-42,
Plaintiff’s Opposition to Defendants’ Motion to Dismiss
(“Pl.’s Opp.”) at 3, and seeking declaratory relief, Compl.
¶ 2; Pl’s Opp. at 3-4. Currently before the Court is
the defendants’ motion to dismiss the complaint for lack of
subject matter jurisdiction and for failure to state a
claim upon which relief may be granted.[fn1] For the
reasons set forth below, the defendants’ motion to dismiss
is granted in part and denied in part.

I. Background

The plaintiff voluntarily enlisted in the United States
Marine Corps on August 29, 1974. Compl. ¶ 24; Defs.’
Mem. at 1. While on active duty, the plaintiff suffered
from abdominal pain, was diagnosed with “sickle cell
disease,” and underwent a splenectomy in February 1977.
Page 2 Compl. ¶¶ 11, 24, 38; Defs.’ Mem. at
2. The plaintiff continued to suffer from abdominal pain
after his surgery, Compl. ¶ 11; Defs.’ Mem. at 2,
and he was honorably discharged on February 17, 1978,
following a determination by a Physical Examination Board
(“PEB”) that he was unfit for duty due to a permanent
physical disability connected, in part, with his military
service.[fn2] Compl. ¶¶ 3, 11; Defs.’ Mem. at
3.

In 1997, and again in 2000, the plaintiff sought evaluation
and treatment of his medical condition. Compl.
¶¶ 13-14. The plaintiff alleges that this
treatment revealed that his continuing medical problems
were a result of his 1977 surgery. Id. ¶ 14. In
2002, the plaintiff filed an application with the Board for
Correction of Naval Records (“BCNR” or “Board”) seeking to
change his military records to reflect that he retired with
a full disability and requesting that he be promoted to the
next highest pay grade of E-5.[fn3] Id. ¶ 18; Defs.’
Mem. at 3. The BCNR did not formally review the plaintiff’s
application; rather, in April 2003, the Board
administratively closed the plaintiff’s case pending
receipt of his medical records from the Department of
Veterans Affairs (“VA”). Compl. ¶ 16 & Exhibit
(“Ex.”) E-1. In May 2003, the plaintiff was allegedly
provided with previously concealed information which
revealed that his discharge was the result of the
defendants’ misdiagnosis of the cause for his medical
condition. Compl. ¶ 15. Page 3

On March 3, 2004, the plaintiff filed a complaint in the
United States Court of Federal Claims, alleging that the
United States, through a pattern of discriminatory and
retaliatory conduct motivated by racial animus, had
wrongfully discharged him and illegally concealed records
that would have revealed the true cause for the medical
problem that resulted in his discharge. See Defs.’ Mot., Ex
C. (Carter v. United States, No. 04-284C, slip. op. at 4
(Fed.Cl. Sept. 10, 2004)). The plaintiff sought an order
correcting his retirement status and seeking declaratory
relief and an award of back pay. See id. at 4. In September
2004, the Court of Federal Claims dismissed the plaintiff’s
complaint for lack of subject matter jurisdiction, holding
that the plaintiff’s claim was time-barred by 28 U.S.C.
¶ 2501 (2000), which provides that “[e]very claim of
which the United States Court of Claims has jurisdiction
shall be barred unless the petition thereon is filed within
six years after such claim first accrues.” See id. at 5-7,
11. The plaintiff then re-applied to the BCNR to change his
military records in November 2004. Compl. ¶ 19;
Defs.’ Mem. at 4. In January 2005, the BCNR notified the
plaintiff that it would not reopen his application until
the plaintiff provided it with a copy of the contents of
his VA claims folder. Compl., Ex. E-2 (January 28, 2005
letter from W. Dean Pfeiffer to Terry Carter) at 1-2. In
March 2005, the BCNR reaffirmed that it had been unable to
obtain a copy of the contents of the plaintiff’s VA claims
folder and, therefore, would not reopen the plaintiff’s
application until it had received a complete copy of the
contents folder from the plaintiff. Compl., Ex. E-3 (March
8, 2005 letter from W. Dean Pfeiffer to Terry Carter) at
1-2.

The plaintiff filed suit in this Court on April 18, 2005,
contending that medical malpractice was committed against
him by Navy doctors, that he was the victim of
discrimination, and that the defendants acted unlawfully in
discharging him from the military on Page 4 February 17,
1978, and concealing his medical records. Compl.
¶¶ 11-14. Specifically, the plaintiff alleges
that the defendants have “beleagured and besieged [him]
with hostile intent” and caused him to be unlawfully
discharged from the military in violation of the Fifth
Amendment, various federal statutes, and sections of the
United States Marine Corps Promotion Manual and the United
States Department of Defense Personnel Manual. Id. ¶
1. Although the plaintiff does not state that he is bringing
a claim under the Administrative Procedure Act, 5 U.S.C.
§ 706 (2000) (“APA”), he does appear to challenge
the BCNR’s refusal to correct his military records in 2005,
Compl. ¶¶ 16-20.[fn4]

On July 20, 2005, the defendants moved to dismiss the
complaint, asserting that the plaintiff’s claims “are
without merit[] and allege no statutory basis for this
Court’s subject matter jurisdiction over his claims,”
Defs.’ Mem. at 1, and also arguing that even under a
liberal construction of the complaint, the plaintiff has
failed to state a claim upon which relief can be granted,
id. at 2.[fn5] The defendants note that “the Court might
find that [the plaintiff] attempts to Page 5 state claims
under the Administrative Procedure Act,” id. at 1, but
argue that to the extent that the plaintiff has stated a
claim under the APA, the Court lacks jurisdiction because
any such claim would be barred by the applicable six-year
statute of limitations, id. at 6-7.[fn6] Further, the Page
6 defendants allege that even if the plaintiff has brought
a timely APA claim, it should be dismissed because there
has been no final agency action.[fn7] Id. at 7-8. Finally,
the defendants assert that any APA claims fail as a matter
of law because the plaintiff seeks monetary damages.[fn8]
Page 7 Defs.’ Reply at 6-7. In response, the plaintiff
concedes that the complaint does not explicitly state a
claim under the APA. Pl.’s Opp. at 4. He therefore requests
that the Court deem the complaint amended to include such a
claim. Id. In addition, the plaintiff contends that he
submitted a complete BCNR application, that the statute of
limitations period has not run on the BCNR’s failure to
properly act on his application, and that the BCNR’s
failure to act is agency action that falls under the
jurisdiction of this Court. Id. at 5, 7-8.

II. Standards of Review

A. Rule 12(b)(1)

On a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1), “the plaintiff bears the burden of
establishing that the court has subject-matter
jurisdiction.” Natural Resources Def. Council v. Johnson,
422 F. Supp. 2d 105, 110 (D.D.C. 2006) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992)). When
evaluating a Rule 12(b)(1) motion, the Court “must accept
the complaint’s well-pled factual allegations as true and
draw all reasonable inferences in the plaintiff’s favor.”
Thompson v. Capitol Police Bd., 120 F. Supp. 2d 78, 81
(D.D.C. 2000). However, the Court need not “accept
inferences unsupported by the facts alleged or legal
conclusions that are cast as factual allegations.” Zhengxing
v. Nathanson, 215 F. Supp. 2d 114, 116 (D.D.C. 2002); see
also Mountain States Legal Found. v. Bush, 306 F.3d 1132,
1134 Page 8 (D.C. Cir. 2002). Additionally, the Court may
consider material outside of the pleadings in its effort to
determine whether the Court has jurisdiction in the case.
Calloway v. Brownlee, 366 F. Supp. 2d 43, 49 (D.D.C. 2005)
(Walton, J.). The Court may dismiss a complaint for lack of
subject matter jurisdiction only if “it appears beyond
doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.”
Loughlin v. United States, 393 F.3d 155, 162-63 (D.C. Cir.
2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957))
(internal quotation marks omitted).

B. Rule 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), the legal
sufficiency of a complaint is tested. Browning v. Clinton,
292 F.3d 235, 242 (D.C. Cir. 2002). A “complaint need only
set forth `a short and plain statement of the claim,’ . . .
giving the defendant fair notice of the claim and the
grounds upon which it rests.” Kingman Park Civic Ass’n v.
Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (quoting
Fed.R.Civ.P. 8(a)(2) and Conley, 355 U.S. at 47). Moreover,
the pleadings of pro se parties are held to “less stringent
standards than formal pleadings drafted by lawyers.” Haines
v. Kerner, 404 U.S. 519, 520 (1972). However, “[a]lthough a
court will read a pro se plaintiff’s complaint liberally, a
pro se complaint must present a claim on which the Court
can grant relief.” Chandler v. Roche, 215 F. Supp. 2d 166,
168 (D.D.C. 2002) (citing Crisaft v. Holland, 665 F.2d
1305, 1308 (D.C. Cir. 1981)).

When evaluating a motion for failure to state a claim upon
which relief can be granted pursuant to Federal Rule of
Civil Procedure 12(b)(6), the Court “must treat the
complaint’s factual allegations as true and must grant the
plaintiff the benefit of all inferences that can be derived
from the facts alleged.” Sparrow v. United Airlines, Inc.,
216 F.3d 1111, 1113 (D.C. Cir. Page 9 2000) (internal
quotation marks and citations omitted). A complaint may be
dismissed under Rule 12(b)(6) “only if it is clear that no
relief can be granted under any set of facts that could be
proved consistent with the allegations.” Totten v. Norton,
421 F. Supp. 2d 115, 119 (D.D.C. 2006) (quoting
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)
(internal quotation marks omitted). Moreover, “[b]are
conclusions of law and sweeping and unwarranted averments
of fact will not be deemed admitted” for the purpose of a
Rule 12(b)(6) motion. M.K. v. Tenet, 99 F. Supp. 2d 12, 17
(D.D.C. 2000) (citing Haynesworth v. Miller, 820 F.2d 1245,
1254 (D.C. Cir. 1987)).

III. Analysis

The defendants argue that the plaintiff has not set forth
a proper statutory basis for the Court’s jurisdiction over
his claims. Defs.’ Mem. at 1. They argue that “[the
plaintiff] does not cite any bases for subject matter
jurisdiction by this Court or waiver of sovereign immunity
by the United States.” Id. at 14. Further, the defendants
assert that even under a liberal construction of the
complaint, all of the plaintiff’s claims are barred by the
six-year statute of limitations.[fn9] Id. at 1-2 (citing 28
U.S.C. § 2401(a)). They argue that an action
challenging a discharge from military service accrues at the
time the discharge occurs. Id. at 7 (citing Walters v.
Sec’y of Defense, 725 F.2d 107 (D.C. Cir. 1983)). According
to the defendants, “the clock started ticking Page 10 on
February 17, 1978, and [the plaintiff] should have brought
any claims no later than February 17, 1984. It is now
twenty-one years too late.” Id.

In reply, the plaintiff cryptically contends that “[t]he
jurisdictional facts of this case are adequately set forth
in the complaint.”[fn10] Pl.’s Opp. at 1. The plaintiff
also maintains that his claims are not barred by the
statute of limitations. Id. at 5. Specifically, he argues
(1) that the claims relating to his military discharge did
not accrue in 1978; and (2) that the claims relating to his
2003 and 2004 BCNR applications are clearly within the
six-year statute of limitations. Id. at 5-6. He also
asserts that the defendants’ reliance on 28 U.S.C. §
2401(a) in connection with the plaintiff’s date of military
discharge is misplaced. Id. at 5. First, the plaintiff
argues that his military discharge date of February 17,
1978, is void because he did not receive a formal hearing
as he demanded in December 1977. Id. at 10. Rather, the
plaintiff suggests that claims relating to his military
discharge would not have begun to accrue until the time at
which he “discover[ed] the alleged error or injustice.” Id.
at 5. Second, the plaintiff argues that any limitation
period would not begin to run on his claim challenging the
defendants’ failure to act on his application for
correction of his military records “until the date that
such failure or refusal to act is determined to operate as
a final determination of the Secretary on the application.”
Id. The plaintiff claims that “[n]either the April 2003
denial of the [p]laintiff’s initial application or [the]
Page 11 January 2005 denial of the amended application is
outside the time within which an action may be brought for
review and relief of those determinations.” Id. at 5-6.

As noted earlier, any claims relating to the plaintiff’s
1978 military discharge that were or could have been
brought in the plaintiff’s 2004 complaint before the Court
of Federal Claims are precluded from relitigation by the
doctrine of res judicata. See supra note 5. For the reasons
that follow, the Court concludes that all of the
plaintiff’s other claims relating to his military
discharge, but not those relating to his application for
correction of his military records, are barred by the
statute of limitations. Furthermore, to the extent that the
plaintiff asks that his complaint be construed to include
an APA claim alleging that the BCNR improperly failed to
correct his military record when they closed his
applications in April 2003 and January 2005, he is
effectively attempting to raise new claims in his
opposition to the defendants’ motion to dismiss. Although
such claims are within the six-year statute of limitations,
they have not been properly alleged. Accordingly, the Court
must dismiss with prejudice the claims relating to the
plaintiff’s 1978 military discharge, but will afford the
plaintiff leave to amend his complaint to include APA
claims challenging the BCNR’s 2003 and 2005 actions.

A. The Statute of Limitations

All civil actions brought against the United States “shall
be barred unless the complaint is filed within six years
after the right of action first accrues.” 28 U.S.C.
§ 2401(a). A cause of action “accrues when it first
comes into existence as an enforceable claim or right.”
Felter v. Norton, 412 F. Supp. 2d 118, 125 (D.D.C. 2006)
(citations omitted). The plaintiff’s cause of action for
his claims of racial discrimination, for which he now seeks
declaratory relief, Compl. Page 12 at 15, clearly began to
accrue during his service time, when the plaintiff by his
own admission “challenged those [allegedly discriminatory]
acts and conduct of the defendant . . . to the resentment
of his superiors,” Compl. ¶ 30. And “it seems
eminently sensible to conclude” that the plaintiff’s cause
of action for claims relating to his 1977 splenectomy and
subsequent honorable discharge “first accrued when he
received his . . . discharge” in February 1978 —
that is, when the PEB determined that the plaintiff was
unfit for service and entitled to a partial disability.
Walters, 725 F.2d at 114. Accordingly, the Court agrees
with the defendants that the clock began to run no later
February 17, 1978, for any claims relating to the
plaintiff’s military service or military discharge.[fn11]
Thus, the plaintiff’s claims that he was improperly
discharged based on racial discrimination and a faulty
medical diagnosis in violation of the United States
Constitution, applicable statutes, and military regulations
had to be initiated within six years of the discharge, or
by February 17, 1984.[fn12] Having filed suit with this
Court on April 18, 2005, the Page 13 plaintiff has brought
this action well outside the applicable six-year statute of
limitations.[fn13] All of the plaintiff’s claims alleging
constitutional and statutory violations by the defendants
leading to his 1978 military discharge, including the
defendants’ alleged medical malpractice and racial
discrimination, are thus barred by § 2401(a).

On the other hand, the plaintiff’s claims regarding his
2003 and 2005 applications for the correction of his
military record are not barred by 28 U.S.C. §
2401(a).[fn14] Bittner v. Sec’y of Defense, 625 F. Supp.
1022, 1029 (D.D.C. 1985) (concluding that plaintiffs
seeking review of administrative review boards’ decisions
regarding the upgrade of their military discharge were
Page 14 not barred by the statute of limitations, even
though plaintiffs were barred from seeking review of their
original discharge where it occurred more than six years
before the case was filed) (quoting Van Bourg v. Nitze, 388
F.2d 557, 563 (D.C. Cir. 1967)). Accordingly, the statute
of limitations does not bar the plaintiff from bringing a
claim relating to the 2003 and 2005 actions of the BCNR
refusing to correct his military record. Id.

B. The APA Claim

Claims challenging the decisions of military boards for
the correction of records are subject to judicial review
under the APA. Piersall v. Winter, 435 F.3d 319, 324 (D.C.
Cir. 2006). The plaintiff, however, concedes that his
complaint does not properly articulate a claim under the
APA seeking judicial review of the defendants’ denial of
his applications to the BCNR. Pl.’s Opp. at 4.
Consequently, the plaintiff “requests that the Court deem
the Complaint amended [to include a claim under the APA] or
in the alternative that [he] be permitted the filing of an
amended Complaint.” Id. The defendants argue in response
that the plaintiff cannot de facto amend his complaint by
asserting new claims under the APA in his responsive
pleadings. See Defs.’ Reply at 3-4 (arguing that the
plaintiff has not complied with Local Civil Rule 7(i) by
failing to provide the defendants or the Court with his
proposed amended complaint).

Local Civil Rule 7(i) requires that “[a] motion for leave
to file an amended pleading shall be accompanied by an
original of the proposed pleadings as amended.” Local Civ.
R. 7(i). However, Federal Rule of Civil Procedure 15(a)
provides that leave to amend a complaint “shall be freely
given when justice so requires.” Fed.R.Civ.P. 15(a); see
also Davis v. Liberty Mut. Ins. Co., 871 F.2d 1134, 1136-37
(D.C. Cir. 1989) (stating that “[i]t is common ground that
Rule Page 15 15 embodies a generally favorable policy
toward amendments”) (citation omitted); Graves v. United
States, 961 F. Supp. 314, 317 (D.D.C. 1997) (noting that
the decision whether to grant or deny leave to amend is
within the court’s discretion). Absent “undue delay, bad
faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party
by virtue of allowance of the amendment, futility of
amendment, etc.,” a court should grant a request to amend a
complaint. Atchinson v. District of Columbia, 73 F.3d 418,
425-26 (D.C. Cir. 1996) (internal quotation marks and
citations omitted). Further, “Rule 15(a) `guarantees a
plaintiff an absolute right’ to amend the complaint once at
any time so long as the defendant has not served a
responsive pleading and the court has not decided a motion
to dismiss.” Adams v. Quattlebaum, 219 F.R.D. 195, 196
(D.D.C. 2004) (quoting James v. Hurson Assocs., Inc. v.
Glickman, 229 F.3d 277, 282-83 (D.C. Cir. 2000)).

In the instant case, because the plaintiff is a pro se
litigant whose pleadings are held to a less stringent
standard than those drafted by a lawyer, the Court will
read all of the plaintiff’s filings together and consider
his complaint in light of his reply to the motion to
dismiss. See Richardson v. United States, 193 F.3d 545, 548
(D.C. Cir. 1999). In Richardson, the District of Columbia
Circuit considered four factors in holding that the
district court erred in refusing to consider a pro se
plaintiff’s reply to constitute an amendment to his
original complaint: (1) the plaintiff was a pro se
litigant; (2) the plaintiff could have amended his claim as
a right because the defendant had not yet filed a
responsive pleading; (3) the plaintiff recognized the need
for and attempted to make a change to his original
complaint; and (4) the lack of evidence showing that the
defendant would be prejudiced by a grant to amend the
complaint. Id. at 548-49. As in Page 16 Richardson, the
plaintiff here is proceeding pro se, he has requested to
amend his complaint prior to its dismissal, he clearly
intended to change his complaint, if so permitted, to
include a claim under the APA, and the defendants will not
be prejudiced by allowing the complaint to be amended.
Therefore, although the plaintiff did not include an APA
claim in his original complaint, this Court will read the
plaintiff’s complaint in light of his reply to the motion
to dismiss. Because APA claims challenging the BCNR’s 2003
and 2005 actions may be proper subjects for relief and
because the plaintiff has requested leave to amend his
complaint to include such claims, the Court grants the
plaintiff leave to amend his complaint to assert with
greater clarity claims challenging the 2003 and 2005
actions of the BCNR under the APA. However, the plaintiff
may not seek to amend his complaint in any other respect.
Cf. Wyatt v. Syrian Arab Republic, 362 F. Supp. 2d 103, 117
(D.D.C. 2005) (allowing the plaintiffs to amend their
complaint with a statement indicating which jurisdiction’s
law they sought to apply, but not allowing any other
modifications of the complaint).

IV. Conclusion

For the reasons stated above, the Court dismisses the
claims related to the plaintiff’s 1978 military discharge,
but grants the plaintiff leave to amend his complaint to
assert with greater clarity his claims challenging the 2003
and 2005 closures of his BCNR applications under the
APA.[fn15] Page 17

SO ORDERED.