Filed: Dec. 28, 2018
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-1736 _ DAVID L. BATTLE, Appellant v. SECRETARY UNITED STATES DEPARTMENT OF NAVY; DEPARTMENT OF THE NAVY _ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2-17-cv-00023) District Judge: Alan N. Bloch _ Submitted Under Third Circuit L.A.R. 34.1(a) November 2, 2018 _ Before: CHAGARES, JORDAN, and VANASKIE, Circuit Judges (Opinion Filed: December 28, 2018) _
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-1736 _ DAVID L. BATTLE, Appellant v. SECRETARY UNITED STATES DEPARTMENT OF NAVY; DEPARTMENT OF THE NAVY _ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil Action No. 2-17-cv-00023) District Judge: Alan N. Bloch _ Submitted Under Third Circuit L.A.R. 34.1(a) November 2, 2018 _ Before: CHAGARES, JORDAN, and VANASKIE, Circuit Judges (Opinion Filed: December 28, 2018) _ O..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-1736
_____________
DAVID L. BATTLE,
Appellant
v.
SECRETARY UNITED STATES DEPARTMENT OF NAVY; DEPARTMENT OF
THE NAVY
__________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 2-17-cv-00023)
District Judge: Alan N. Bloch
__________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 2, 2018
___________________________
Before: CHAGARES, JORDAN, and VANASKIE, Circuit Judges
(Opinion Filed: December 28, 2018)
_____________
OPINION *
_____________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
VANASKIE, Circuit Judge.
This case arises from Petitioner David A. Battle’s unsuccessful attempts to have
his discharge status designation of “other than honorable” changed to “honorable”
following his service in the United States Marine Corps from 1973 to 1976. Battle’s first
unsuccessful attempt concluded in 1978. Thirty-seven years later, in 2015, Battle moved
for reconsideration of the 1978 decision issued by the Board for Correction of Naval
Records (“BCNR” or “Board”). His reconsideration motion was denied in 2016, and
Battle then commenced an action to overturn that adverse decision. The District Court
found that Battle’s case was time-barred by 28 U.S.C. § 2401(a), which, in pertinent part,
provides that “every 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.” Battle
appeals, arguing that the denial of this reconsideration motion in 2016 reset the
limitations period so that his action was timely. We disagree. Therefore, we will affirm
the District Court’s dismissal.
I. BACKGROUND
Battle enlisted in the Marine Corps in 1973. During the term of his enlistment, he
received a number of misconduct charges. As a result, he had been recommended for
“administrative separation,” i.e., “other than honorable” discharge. 1 However, he was not
immediately discharged at the end of his term of enlistment, and instead remained in
1
Battle explains that an “other than honorable” discharge is an unfavorable
administrative discharge, and that, although they are often used interchangeably, a
“dishonorable” or “bad conduct” discharge in fact refers to discharges “only assigned by
a sentence of court-martial.” (Appellant’s Br. 4).
2
service pending a separate disability discharge proceeding instituted on his behalf
following a leg injury. While the disability discharge process was underway, an
Assistant Judge Advocate General (“AJAG”) indicated that no action should be taken
with respect to Battle’s disability discharge and instead recommended that Battle “be
discharged under other provisions of law,” i.e., via administrative separation. (App. 33).
Accordingly, Battle was administratively and involuntarily separated in May 1976, and
therefore has an “other than honorable” discharge status. Battle contends that the AJAG
lacked the authority to withhold approval and final adjudication of a disability discharge
under the Navy’s regulations at that time. Therefore, after he was discharged as “other
than honorable” in 1976, Battle moved for correction of his military records in the form
of a discharge upgrade, which the BCNR denied in 1978.
Thirty-seven years later, in 2015, Battle moved for reconsideration of the 1978
decision and asked the BCNR to reopen his case based on new arguments and/or
evidence. The BCNR denied his request in 2016. As a result, Battle sought judicial
review of the BCNR’s 2016 decision under 5 U.S.C. § 702, alleging that the BCNR
“failed to correct the error and injustice in his record.” (App. 7). As relevant to this
appeal, the District Court concluded that the BCNR’s 1978 denial was the operative,
“final decision” for purposes of calculating the six-year statute of limitations under §
2401(a). (App. 21). Therefore, the District Court found that Battle did not commence his
action within the requisite time frame and granted the Government’s motion to dismiss. 2
2
Although the Government brought its motion to dismiss pursuant to Rule
12(b)(6), the District Court treated the dismissal as one for lack of subject matter
3
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We exercise
appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise “plenary review” over a
District Court’s grant of a motion to dismiss for want of jurisdiction under Rule 12(b)(1).
Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016) (citation omitted).
III. DISCUSSION
The parties agree on the framework and relevant law governing the jurisdictional
question in this case. Pursuant to 10 U.S.C. § 1552, the Secretary of the United States
Navy “may correct any military record of the [Navy] when the Secretary considers it
necessary to correct an error or remove an injustice.” § 1552(a)(1). Additionally, §
1552(a)(1) authorizes the Secretary to establish boards like the BCNR to review and
potentially correct Navy records, including those of the Marine Corps. Id.; 32 C.F.R. §
723.2(a), (b). The BCNR thus has the ability to consider motions for reconsideration,
such as Battle’s, to correct a military record by upgrading an “other than honorable”
discharge designation. See 32 C.F.R. §§ 723.2(a), 723.9.
If a Marine Corps member receives an adverse decision from the BCNR, he may
then seek judicial review of the decision under the Administrative Procedure Act, 5
jurisdiction pursuant to Rule 12(b)(1) because it concluded that a statute of limitations
defense under § 2401(a) is jurisdictional in nature. (App. 9). Although the District Court
noted that it is unsettled whether § 2401(a)’s statute of limitations is jurisdictional and
thus expressed hesitancy to treat it as such, the District Court properly treated the motion
to dismiss as one for lack of subject matter jurisdiction pursuant to our decision in United
States v. Sams, 21 F.2d 421, 428 (3d Cir. 1975) (concluding that failure to comply with §
2401(a) deprived the District Court of jurisdiction).
4
U.S.C. §§ 701–706 et seq. Actions seeking judicial review of a BCNR decision, such as
the one at issue, are generally governed by the six-year statute of limitations set forth in §
2401(a). See Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 626–27 (2018). Thus,
both Battle and the Government agree that, in order for Battle’s action to be timely, he
must have commenced it within six years from the date that “‘the right of action first
accrue[d].’” Green v. White,
319 F.3d 560, 563 (3d Cir. 2003) (quoting § 2401(a)).
Under § 2401(a), a right of action accrues when the BCNR issues a “final decision.”
Dougherty v. U.S. Navy Bd. for Correction of Naval Records,
784 F.2d 499, 501 (3d. Cir.
1986).
As relevant here, the heart of this appeal centers on which of the BCNR adverse
decisions—the 1978 decision or the 2016 decision—constitutes the operative “final
decision” from which the six-year limitations period began to run. In that regard, it is
undisputed that the 1978 BCNR decision denying Battle’s application to upgrade his
discharge status constitutes a “final decision” for purposes of triggering the statute of
limitations under § 2401(a). What is at issue here is whether the 2016 decision restarted
the limitations period.
The BCNR may accept, at any time, petitions for reconsideration and reopen an
applicant’s case. See Green, 319 F.3d at 565; 32 C.F.R. § 723.9. Notwithstanding the
existence of prior “final decisions,” if the BCNR reopens a case and issues a denial on the
merits, it creates a new “final decision” for purposes of § 2401(a), thereby resetting the
statute of limitations clock. See
Green, 319 F.3d at 565–66.
5
For example, in Green, we made clear that a petition for reconsideration can
constitute a new, judicially reviewable “final decision” for purposes of restarting §
2401(a)’s six-year limitation period if the BCNR reopens the action based on a finding
(1) of “new evidence” or (2) that the petition “reflect[s] some ‘changed circumstances.’”
Id. at 566. In so finding, however, we emphasized that only a BCNR decision which
definitively “reopens” and considers a case based on either criterion may be considered a
“final decision.”
Id. at 567. Even if the BCNR “‘discusses the merits at length when it
denies a request for reconsideration,’” that does not mean, for purposes of judicial
review, that the BCNR has reopened the case and issued a “final decision” on the matter
for purposes of restarting § 2401(a)’s statute of limitations.
Id. (quoting Sendra Corp. v.
Magaw,
111 F.3d 162, 167 (D.C. Cir. 1997)). Rather, the BCNR’s decision will only be
considered “final” if it unambiguously indicates or “otherwise demonstrate[s]” that the
Board has reopened the proceeding.
Id. (quoting Sendra Corp., 111 F.3d at 167).
Here, the parties dispute whether the BCNR’s 2016 adverse decision can properly
be considered a “final decision” for statute of limitations purposes. As the District Court
noted, the BCNR decision is not a “model of clarity.” (App. 20). For example, the
BCNR’s 2016 decision concluded that “new information” was presented to the Board that
“d[id] not warrant relief,” and that Battle’s “request ha[d] been denied,” arguably
suggesting that the BCNR had indeed reopened Battle’s case on the basis of “new
information” that it found meritless. (App. 22). On the other hand, the decision also
stated that Battle was “entitled to have the Board reconsider its decision based upon
submission of new evidence,” which, the Board explained, means “new evidence not
6
previously considered by the Board prior to making its decision in this case,” arguably
implying that the BCNR had in fact not reopened the matter because Battle had failed to
present “new evidence” or some “changed circumstances.” (App. 23) (emphasis added).
Thus, given that the language was ambiguous, the District Court concluded that the
BCNR had not “clearly” reopened the case.
We agree. In Green, we noted that “‘only when the agency has clearly stated or
otherwise demonstrated that it has reopened the proceeding will the resulting agency
decision be considered a new final order subject to judicial review[.]’” 319 F.3d at 567
(emphasis added) (internal punctuation omitted) (quoting Sendra
Corp., 111 F.3d at 167)
(explaining that, “unless [an] agency clearly states or indicates that it has reopened the
matter, its refusal of a request for reconsideration will be treated as simply that” (citation
and internal quotation marks omitted)). This is true even if the reviewing agency
discussed the merits of the underlying action, as was the case here. See, e.g., ICC v. Bhd.
of Locomotive Eng’rs,
482 U.S. 270, 280 (1987) (“It is irrelevant that the [agency]’s
order refusing reconsideration discussed the merits of the unions’ claims at length.
Where the [agency]’s formal disposition is to deny reconsideration, and where it makes
no alteration in the underlying order, [the court] will not undertake an inquiry into
whether reconsideration ‘in fact’ occurred.”). Furthermore, an agency’s explanation for
“affirming a prior denial” does not reopen proceedings and constitute “a new, judicially-
reviewable decision.” Sendra
Corp., 111 F.3d at 167 (citation and internal quotation
marks omitted). Accordingly, the fact that the BCNR here discussed the merits of
7
Battle’s case or provided an explanation why it was affirming the 1978 BCNR’s decision
is not dispositive in the “final decision” inquiry.
A comparison of the language in the decision at issue in Green and the language
employed by the BCNR here buttresses our conclusion. In Green, we determined that the
Board had appeared to reopen the proceedings at issue because the language of the
decision provided that the Board had reviewed “Green[’s] material and ‘determined that
no new evidence had been presented that the [Board] had not previously considered,”
which we concluded was sufficiently unambiguous to demonstrate that the Board had
reopened and considered Green’s case on the merits. Green, 319 F.3d at 567 (emphasis
added). In contrast, the conflicting language in the BCNR’s 2016 decision is far from
clear. Thus, because the BCNR here did not issue a clear, unambiguous statement that it
was reopening Battle’s case, we find that the District Court did not err in finding that the
BCNR’s 2016 decision did not reopen the case and was therefore not a “final decision”
for purposes of restarting § 2401(a)’s six-year time limitation. See, e.g., Fort Sumter
Tours, Inc. v. Babbitt,
202 F.3d 349, 356 (D.C. Cir. 2000) (“[A]mbiguity as to whether
the agency has reopened its decisionmaking” is insufficient to constitute a “final
decision” which restarts the statute of limitations period).
We also find unpersuasive Battle’s argument that, notwithstanding the admittedly
ambiguous language in the BCNR’s decision, the BCNR’s consideration of the
documentary items and legal issues he raised before it was sufficient to support an
inference that the BCNR reopened and affirmatively denied his application to adjust his
discharge status. Battle claims that he provided “new evidence” in his 2015 Motion such
8
that reopening of his case would have been permissible. Specifically, he claims that he
presented two pieces of evidence that the 1978 BCNR review of his case did not
consider: (1) a March 31, 1976 AJAG decision withholding approval of his disability
discharge, and (2) excerpts from the 1971 Federal Register and Marine Corps Separation
Manual (“Manual”). (App. 15).
New evidence, for purposes of reconsideration of a BCNR decision, is “evidence
not previously considered by the Board and not reasonably available to the applicant at
the time of the previous application.” 32 C.F.R. § 723.9 (emphasis added). Further, such
evidence must be “material,” i.e., “likely to have a substantial effect on the outcome.” Id.
The District Court concluded that the purportedly “new” evidence Battle proffered does
not meet this definition because, although the 1978 BCNR may not have considered any
of the “new” pieces of evidence, all of it was nonetheless “reasonably available” to Battle
at that time. For example, with respect to the Federal Register excerpts and Manual, the
District Court points out that the BCNR stated in the 1978 decision that that it had
considered Battle’s application “together with all material submitted in support thereof,
naval records, and pertinent statutes, regulations and policies,” (App. 15), implying that
the BCNR had considered both the 1971 Federal Register excerpts and the Manual
because both pieces of evidence could reasonably be understood to fit within the
definition of items the 1978 BCNR considered. Even if we disagree that the excerpts
and/or the Manual could not arguably fit within the BCNR’s definition of things it
considered, we nevertheless are persuaded that those two pieces of evidence would have
been “reasonably available” to Battle to use in support of his 1978 motion as both the
9
1971 Federal Register and the Manual were undoubtedly available at that time. Further,
we are not convinced that such evidence would have been “material” in that it would
have had a “substantial effect” on the BCNR’s ultimate decision.
Nor is it reasonably debatable that the 1976 AJAG decision was “new and material
evidence.” The Board was plainly aware of the AJAG decision when it issued its ruling
in 1978. 3 The fact that AJAG memoranda from March of 1976 may not have been part
of the administrative record does not alter this conclusion. As the District Court
reasoned:
[T]he BCNR, which . . . purported to have reviewed [Battle]’s naval records
at the time it rendered its decision, was either aware of the March 31, 1976
memorandum or was at least aware of the material aspects of the decision.
At best, the physical record [Battle] asserts to be new evidence would do no
more than provide cumulative evidence of a fact of which the board was well
aware. Further, given the presumption of regularity that applies to such
proceedings, see 32 C.F.R. § 723.3(e)(2), there is no basis to find that the
BCNR did not have access to a document that would have been part of the
record. Regardless, the fact that it was apparently known at the 1978
proceeding that an AJAG had made the decision as to [Battle]’s disability
discharge proceedings would demonstrate that evidence of this fact was
reasonably available at the time.
(App. 17) (internal punctuation altered). Furthermore, Battle does not point to anything
in the purportedly “new evidence” that could have had a “substantial effect” on the
3
Specifically, the Board noted in its decision that:
At the time of your discharge the [AJAG] reviewed the disability proceedings and
your disciplinary record, and recommended that you be administratively separated
with an undesirable discharge even though your disciplinary record was incomplete
and he considered only six nonjudicial punishments and one summary court-martial.
(App. 165).
10
BCNR’s 1978 decision. Accordingly, the District Court’s conclusion that the 1976
AJAG decision was not “new evidence” was not unreasonable. 4
Battle also claims that “new arguments” he raised in his 2015 Motion, including
those based on our decision in Taylor v. United States, 711 F.2d 1199 (3d Cir. 1983),
concerning retention of a serviceman beyond his enlistment date, constitute a “changed
circumstance” necessary to justify reopening a decision for purposes of § 2401(a).
Regardless, we find that the language of the 2016 BCNR decision did not clearly provide
it was reopening its initial decision. Furthermore, the 2016 ruling indicated that the
argument he was presenting concerning being retained beyond the termination date for
his enlistment was addressed in the 1978 ruling, explaining:
[T]he Board concluded that you were held beyond your enlistment in order to
consider your disability case and no regulation existed in 1976 prohibiting that
action. As a result, they determined that no regulations were violated and you
should not benefit from an argument that you were unfairly held beyond your
enlistment when it was originally intended to benefit you. Further, the fact you
were already processed and approved for administrative separation prior to the
end of your obligated service convinced the Board no injustice exists under
those circumstances.
(App. 23). Thus, there is no reason to believe that Taylor would have had a material
effect on the outcome of the first proceeding.
Accordingly, we are unpersuaded that the BCNR’s decision constituted a
“reopening” of his case based on the consideration of “new evidence” or “changed
4
On appeal, Battle now notes that there is yet another AJAG memorandum from
March 1976 that is missing from the administrative record. Once again, however, Battle
fails to demonstrate how this AJAG memorandum would have had a material effect on
the outcome of his case as his administrative separation was more than supported by his
numerous incidences of misconduct.
11
circumstances” before it. Therefore, we find that the District Court did not err in
concluding that the BCNR’s 2016 decision did not constitute a new, “final decision” for
purposes of restarting § 2401(a)’s statute of limitations. Thus, the District Court properly
dismissed Battle’s case for lack of subject matter jurisdiction.
IV. CONCLUSION
For the foregoing reasons, we will affirm the District Court’s order dismissing
Battle’s case for lack of subject matter jurisdiction.
12
