### STEVEND. CAGE, Plaintiff,



### v. JOHNMCHUGH, 

### UNITED STATES DISTRICT COURT FORTHE DISTRICT OF COLUMBIA ) ) ) ) 

### ) Civil Case No. 12-444 (RJL) ) ) ) 

### Defendant. )

# ~ MEMORANUUM OPINION (August

# $o13) [Dkt. #11] Plaintiff, Steven D. Cage, ("plaintiff' or "Cage") broughtthe instant action on March 21, 2012, seekingreversal ofthe Army Board for Correction ofMilitary Records' ("ABCMR") denial ofplaintiffsrequest 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 ofthe parties' pleadings, relevant law, and the entire record herein, the Court concludes thatplaintiffs claim fails for lack ofsubject-matter jurisdictionbecause it was untimely filed. Accordingly, the Court will GRANT defendant's Motion to Dismiss under Rule 12(b)(l) ofthe Federal Rules ofCivil Procedure.

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### BACKGROUND Plaintiffgraduated from the U.S. Military Academy in 1978. Appendix to Def.'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, plaintiffwas discharged from the Army after the RIF Board selected him for involuntary separation. App. A15. He held the rank ofMajor at that time. 

### !d. Following his discharge from the Army, plaintiffwas immediately appointed as a Reserve commissioned officer with the rank ofMajor. 

### !d. Ultimately, plaintiffwas promoted to the rank ofColonel in 2001 and retired at that rank in 2008 after reaching thirty years of active and reserve duty. See Compl.**~** 21; App. A99-100. On February 15, 1994, Plaintiffapplied to the ABCMR for correction ofhis 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. A13-18. Plaintiffwas notified ofthis decision in a letter dated February 8, 1995, which advised: Only ifyou 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. Ifa request for reconsideration is submitted, the staffofthe Board will evaluate the evidence and make that determination at the appropriate time. Otherwise, this decision is final. The only remaining avenue ofappeal, should you desire to pursue it, would be in a Federal Court.

2App. A19. A service member who obtains an adverse decision from the ABCMRmay apply for reconsideration ofthe adverse review board decision, as plaintiffdid here. See 32 C.F.R. § 581.3(g)(4). Specifically, between 1995 and 2001, plaintifffiled three unsuccessful requests for reconsideration ofthe ABCMR's 1995 denial ofhis reinstatement request. 1 In 2004, the ABCMR convened to reconsider plaintiffs "1993 request thathe berestored to active duty." App. A54. Plaintiffargued that the RIF Board's decision should be overturned because it was unlawful and contradictory and because he successfully appealed several OfficerEfficiency Reports ("OERs") that may have affected the decision. See App. A54-55. The ABCMRreviewed plaintiffs OERs and concludedthat "there is no compelling evidence that would warrant overcomingthe 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. Followingthe ABCMR's 2004 decision, plaintiffwrote a letterto the Acting Secretary ofthe 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 numberto this letter, construing it as a

1 Plaintiffmade such requests in (1) January of 1996, see App. A24, (2) November of 3

### request for reconsideration. See 

### App. A74, A77. On December 1, 2005, the ABCMR denied plaintiffsrequest 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, plaintifffiled the instant complaint challenging the ABCMR's December 2005 decision on reconsideration. Plaintiffstyles his claim as a challenge to agency action under the Administrative Procedure Act ("APA"), 5U.S.C. § 701 etseq., 

### 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 ofthe APA. See 

### Compl. 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] limitedjurisdiction." Kokkonen v. Guardian LifeIns. Co. of Am., 

### 511 U.S. 375, 377 (1994). Accordingly, a plaintiffmust establish that the Courtpossessesjurisdiction 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 LegalFound. v. Bush, 

### 306 F.3d 1132, 1134 (D.C. Cir. 2002).

1998, see id., 

### and (3) September of2001, see 

### App. A22-46. 4ANALYSIS When a service member seeksjudicial review underthe APA ofan adverse decision by his service's administrative reviewboard, 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 bebarred unless the complaint is filed within sixyears after the right ofaction first accrues." 28 U.S.C. 

### § 2401(a). Here, plaintiffs cause ofaction accrued in 1995 when the ABCMR denied his request for reinstatement. As a service member, he could have immediately sought review in federal court ofthis adverse board decision. Put simply, there is no requirementto exhaust administrative remedies before filing suit. See 32 C.F.R. 

### § 581.3(g)(4) (permittingreconsideration ofABCMRdecisions within one year of original decision). Unfortunately, plaintiffdid not seekjudicial review ofthe ABCMR's decision within the six-year limit set by 28 U.S.C. § 2401(a). Instead, plaintiffnow challenges the ABCMR's December2005 decision on reconsideration, which upheld the ACMBR's initial adverse decision. With respect to the six-year statute oflimitations period under 28 U.S.C. § 2401(a), plaintiffcontends that his petition for reconsideration effectively reset the clock. It did not. A service member'spetition for reconsideration does not delay the running ofthe six-year statute of limitations period where the petitionerwaits more than six years afterthe ABCMR's initial decision to file the petition for reconsideration. See Nihiser v. White, 211 F. Supp.

52d 125, 129 (D.D.C. 2002). Indeed, ifthe rule were interpreted otherwise, 28 U.S.C. § 2401(a) would be rendered meaningless because aplaintiffcould toll the statute of limitations indefinitely by filing an endless series ofmotions 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, plaintiffadditionally argues that tolling under the Servicemembers Civil ReliefAct ("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 plaintiffserved on full-time, active duty military service. 50 U.S.C. app. §§ 511, 526(a). Here, plaintiffs active duty service only extended the statute oflimitations period from February 8, 2001 to on or about August 24, 2002. 3 Indeed, plaintiffconcedes that the SCRA does not provide sufficienttolling for the 1995 ABCMR decision to survive a statute oflimitations.argument. See PI. Opp'n. [Dkt. #14] at 16. Thus, because the statute oflimitations expired well before plaintiffinstituted the present action in 2012, and"§ 2401(a) is ajurisdictional condition attached to the

2 Moreover, the ABCMR did notreopen its 1995 decision at any point, further undercuttingplaintiffs arguments regarding tolling ofthe statute oflimitations period. 3 Plaintiffserved 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 oflimitations would have expired. App. A89-95. Plaintiffserved an additional 52 days on active duty betweenFebruary 9, 2001 and August 24, 2002. App. A94-96. 6government's waiver ofsovereign immunity, and as such must be strictly construed," this Court lacksjurisdiction overplaintiffs claim. 

### Spannaus v. US. Dep 't of Justice, 824 F.2d 52, 55 (D.C. Cir. 1987). CONCLUSION For all ofthe foregoing reasons, the defendant's Motion to Dismiss must be GRNATED pursuantto Rule 12(b)(l) ofthe Federal Rules ofCivil Procedure.

United States District Judge

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