STEVEN D. CAGE, 

Plaintiff, 

v. 

JOHN MCHUGH, 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

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) Civil Case No. 12-444 (RJL) 

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Defendant. ) 

MEMORANUUM ~ OPINION 

(August $o13) [Dkt. #11] 

Plaintiff, Steven D. Cage, ("plaintiff' or "Cage") brought the instant action on 

March 21, 20 12, seeking reversal of the Army Board for Correction of Military Records' 

("ABCMR") denial of plaintiffs request to set aside his release from active duty pursuant 

to a decision made by the Army Reduction in Force Board for fiscal year 1992 ("RIF 

Board"). Upon consideration of the parties' pleadings, relevant law, and the entire 

record herein, the Court concludes that plaintiffs claim fails for lack of subject-matter 

jurisdiction because it was untimely filed. Accordingly, the Court will GRANT 

defendant's Motion to Dismiss under Rule 12(b)(l) of the Federal Rules of Civil 

Procedure. 

1 
BACKGROUND 

Plaintiff graduated from the U.S. Military Academy in 197 8. Appendix to De f.'s 

Mot. to Dismiss ("App.") [Dkt. #11-2] A14-15; Compl. [Dkt. #1] at~ 1. He was 

appointed Second Lieutenant in the United States Army ("Army") after graduation. !d. 

In 1992, plaintiff was discharged from the Army after the RIF Board selected him for 

involuntary separation. App. A15. He held the rank of Major at that time. !d. 

Following his discharge from the Army, plaintiff was immediately appointed as a Reserve 

commissioned officer with the rank of Major. !d. Ultimately, plaintiff was promoted to 

the rank of Colonel in 2001 and retired at that rank in 2008 after reaching thirty years of 

active and reserve duty. See Com pl. ~ 21; App. A99-1 00. 

On February 15, 1994, Plaintiff applied to the ABCMR for correction of his 

military records, challenging his involuntary separation by the RIF Board and requesting 

reinstatement in the Regular Army. App. A8-12. The ABCMR denied plaintiffs 

application, finding no basis for setting aside plaintiffs involuntary separation. App. 

A 13-18. Plaintiff was notified of this decision in a letter dated February 8, 1995, which 

advised: 

Only if you can present newly discovered relevant evidence that was not 

available for consideration by the Board when it denied your application 

will there be a basis for reconsideration. If a request for reconsideration is 

submitted, the staff of the Board will evaluate the evidence and make that 

determination at the appropriate time. Otherwise, this decision is final. 

The only remaining avenue of appeal, should you desire to pursue it, would 

be in a Federal Court. 

2 
App. A19. 

A service member who obtains an adverse decision from the ABCMR may apply 

for reconsideration of the adverse review board decision, as plaintiff did here. See 32 

C.F.R. § 581.3(g)(4). Specifically, between 1995 and 2001, plaintiff filed three 

unsuccessful requests for reconsideration of the ABCMR's 1995 denial of his 

reinstatement request. 1 In 2004, the ABCMR convened to reconsider plaintiffs "1993 

request that he be restored to active duty." App. A54. Plaintiff argued that the RIF 

Board's decision should be overturned because it was unlawful and contradictory and 

because he successfully appealed several Officer Efficiency Reports ("OERs") that may 

have affected the decision. See App. A54-55. The ABCMR reviewed plaintiffs OERs 

and concluded that "there is no compelling evidence that would warrant overcoming the 

regulatory 6-year limitation imposed on applications for consideration by a special 

board." App. A65. The ABCMR also found the RIF Board's decision to be lawful and 

internally consistent. See App. A65-66. 

Following the ABCMR's 2004 decision, plaintiff wrote a letter to the Acting 

Secretary of the Army ("Secretary"), in July 2004, contending that the decision was 

"written by incompetents at best or liars at worst." App. A67. In that letter, plaintiff 

asked the Secretary to review his case and reinstate him as a Regular Army officer. See 

App. A67-69. The ABCMR assigned a case number to this letter, construing it as a 

1 Plaintiff made such requests in (1) January of 1996, see App. A24, (2) November of 

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request for reconsideration. See App. A74, A77. On December 1, 2005, the ABCMR 

denied plaintiffs request for reconsideration, concluding that the OERs successfully 

appealed by plaintiff "did not have an effect or influence on his selection for reduction in 

force separation." App. A85. 

On March 21, 2012, plaintiff filed the instant complaint challenging the ABCMR's 

December 2005 decision on reconsideration. Plaintiff styles his claim as a challenge to 

agency action under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., 

and alleges that the ABCMR's 2005 decision was arbitrary, capricious, an abuse of 

discretion, not in accordance with law and regulations, and otherwise in violation of the 

APA. See Com pl. at pp. 10-11. 

STANDARD OF REVIEW 

Under Rule 12(b)(l), "[i]t is to be presumed that a cause lies outside [the Court's] 

limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 

( 1994 ). Accordingly, a plaintiff must establish that the Court possesses jurisdiction by a 

preponderance ofthe evidence. See Hollingsworth v. Duff, 444 F. Supp. 2d 61, 63 

(D.D.C. 2006). The Court must grant plaintiffs all favorable inferences supported by the 

facts in the complaint. Mountain States Legal Found. v. Bush, 306 F.3d 1132, 1134 

(D.C. Cir. 2002). 

1998, see id., and (3) September of2001, see App. A22-46. 

4 
ANALYSIS 

When a service member seeks judicial review under the AP A of an adverse 

decision by his service's administrative review board, the general six-year statute of 

limitations for civil actions against the federal government, 28 U.S.C. § 240l(a), applies. 

Section 2401(a) 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." 28 U.S.C. § 2401(a). Here, plaintiffs cause of action accrued in 1995 when 

the ABCMR denied his request for reinstatement. As a service member, he could have 

immediately sought review in federal court of this adverse board decision. Put simply, 

there is no requirement to exhaust administrative remedies before filing suit. See 32 

C.F .R. § 5 81.3(g)( 4) (permitting reconsideration of ABCMR decisions within one year of 

original decision). Unfortunately, plaintiff did not seek judicial review of the ABCMR's 

decision within the six-year limit set by 28 U.S.C. § 2401(a). 

Instead, plaintiff now challenges the ABCMR's December 2005 decision on 

reconsideration, which upheld the ACMBR's initial adverse decision. With respect to 

the six-year statute of limitations period under 28 U.S.C. § 2401(a), plaintiff contends that 

his petition for reconsideration effectively reset the clock. It did not. A service 

member's petition for reconsideration does not delay the running of the six-year statute of 

limitations period where the petitioner waits more than six years after the ABCMR's 

initial decision to file the petition for reconsideration. See Nihiser v. White, 211 F. Supp. 

5 
2d 125, 129 (D.D.C. 2002). Indeed, if the rule were interpreted otherwise, 28 U.S.C. § 

2401(a) would be rendered meaningless because a plaintiff could toll the statute of 

limitations indefinitely by filing an endless series of motions for reconsideration. See id. 

Here, plaintiffs 2004 petition for reconsideration was filed almost nine years after the 

ABCMR's initial adverse decision in 1995. Accordingly, the six-year statute of 

limitations period ran from the ABCMR's initial 1995 decision.2 

Undaunted, plaintiff additionally argues that tolling under the Servicemembers 

Civil Relief Act ("SCRA"), 50 App. U.S.C. § 526(a), makes his claim timely. 

Unfortunately, it does not. Tolling under the SCRA applies only to periods during which 

plaintiff served on full-time, active duty military service. 50 U.S.C. app. §§ 511, 526(a). 

Here, plaintiffs active duty service only extended the statute of limitations period from 

February 8, 2001 to on or about August 24, 2002.3 Indeed, plaintiff concedes that the 

SCRA does not provide sufficient tolling for the 1995 ABCMR decision to survive a 

statute oflimitations.argument. See PI. Opp'n. [Dkt. #14] at 16. 

Thus, because the statute of limitations expired well before plaintiff instituted the 

present action in 2012, and"§ 2401(a) is a jurisdictional condition attached to the 

2 Moreover, the ABCMR did not reopen its 1995 decision at any point, further 

undercutting plaintiffs arguments regarding tolling of the statute of limitations period. 

3 Plaintiff served 510 days on active duty between February 8, 1995, the day Plaintiff 

received the ABCMR's initial adverse decision, and February 8, 2001, the day the six 

year statute of limitations would have expired. App. A89-95. Plaintiff served an 

additional 52 days on active duty between February 9, 2001 and August 24, 2002. App. 

A94-96. 

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government's waiver of sovereign immunity, and as such must be strictly construed," this 

Court lacks jurisdiction over plaintiffs claim. Spannaus v. US. Dep 't of Justice, 824 

F .2d 52, 55 (D.C. Cir. 1987). 

CONCLUSION 

For all of the foregoing reasons, the defendant's Motion to Dismiss must be 

GRNATED pursuant to Rule 12(b)(l) of the Federal Rules of Civil Procedure. 

United States District Judge 

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