UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) JAMES M. LEWIS, ) ) Plaintiff, ) ) v. ) Civil Action No. 10

- 00842 (RBW) ) SECRETARY OF THE NAVY , ) ) Defendant. ) ____________________________________) MEMORANDUM OPINION James M. Lewis, the pro se plaintiff in this civil case, seeks injunctive and declaratory relief under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701

- 706 (2006) and 28 U.S.C. § 1331 ( 2006), alleging that the Secretary of the Navy (the “Secretary”), the Board for Correction of Naval Records (the “B oard ”), and W. Dean Pheiffer, Executive Director of the B oard , 1 violated 10 U.S.C. § 1552 (2006) by

“ confer[ring ] adjudicatory power on staff members who work fo r, but are not members of [the B oard] ” and allowing them “to evaluate reconsideration requests submitted by veterans and active [duty] members of the Navy and Marine Corps.” 2 Complaint (“Am.

1 The Court notes that the plaintiff lists the Secretary of the Navy, the Board for Correction of Naval Records, and W. Dean Pheiffer as defendants in the body of the amended c omplaint, however, only the Secretary of the Navy has been named in the caption as a defendant for purposes of this lawsuit.

2 10 U.S.C. § 1552 (a)(1) allows “[t] he Secr etary of a military department [to] correct any military record of the Secretary’s dep artment where the Secretary considers it necessary to correct an error or remove an injustice

. ” Id. “[S]uch corrections shall be made by the Secretary acting through boards of civilians of the executive part of th [e applicable] military department. ” Id.2 Compl.”) at 1. 3 Currently before the Court is the defendants’ motion to dismiss , Defendant’s Motion to Vacate Entry of Default; Defendant’s Opposition to Plaintiff’s Motion for Default Judgment; and Defendant’s Motion to Dismiss at 1 , and the plaintiff’s

cross - motion for summary judgment

. Upon consideration of the plaintiff’s amended complaint, the defendants’ motion to dismiss, and all relevant submissions by the parties, 4 the Court concludes for the reasons that follow that the defendants’ motion to dismiss must be granted

. I. BACKGROUND 5
The following facts are not in dispute and are taken from either the a mended

c omplaint or the defendant’s memora ndum in support of its motion to dismiss . The plaintiff enlisted in the United States Marine Corps in 1968. Def.’s Mem

. at 2. Two years later, o n May 22, 1970, “a ge neral court

- martial found [the p]laintiff guilty of assault with a deadly weapon and multiple specifications of disrespect, striking a non

commissioned officer, and making threats,” and he was sentenced , in addition to the imposition o f other sanction s, to “confinement and a bad conduct discharge ” that was designated to become effective on August 27, 1971. Id. at 2

- 3.

3 The plaintiff amended his original complaint on September 13, 2010, however, he failed to amend the title of his amended complaint, which was filed with the clerk’s office under the title “Complaint.”

4 In addition to the documents already identified, the Court considered the following submissions in reaching its decision: (1) the Defendant’s Memorandum of Points and Authorities in Support of Defendant’s Motion to Vacate Entry of Default; Defendant’s Opposition to Plaintiff ’s Motion for Default Judgment; and Defendant’ s Motion to Dismiss (“Def.’s Mem .”), (2 ) the Plaintiff’s Opposition to Defendant’s Motion to Dismiss; Plaintiff’s Motion for Summar y Judgment (Pl.’s Opp’n); (3 ) the Defendant’s Reply Memorandum in Support of De fendant’s Motion to Dismiss and in Opposition to Plaintiff’s Motion fo r Summary Judgment (Def.’s Reply ) ; and the Plaintiff’s Replay [sic] Memorandum to Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment

.
5 The Court notes that the plaintiff failed to include a statement of facts , as required by Local Civil Rule 7(h)(1) of the Rules of the United States District Court for the District of Columbia , with his motion for summary judgment.3 After completing his term of confinement i n March of 1971, the plaintiff “requested and received appellate [ review ] leave, during which he .

. . await[ed] final appellate review and execution of the bad conduct charge.” Id. at 2

- 3 (footnote omitted)

. Ultimately , the United States Court of Military Appeals denied the plaintiff’s “ request for review , and he was issued a bad conduct discharge effective August 27, 1971

. ” Id. at 3. Thereafter , “ i n September [ of ] 1972, the same court , acting upon a petition for extraordinary relief, revers ed [the p ] laintiff’s court

- martial conviction for a jurisdictional defect in the co urt

- martial,” id. (citing Lewis v. United States , 45 C.M.R. 937, 937 (C.M. A. 1972)), because it failed “ to specify the name of the judge who was requested to try the case” and thus lacked jurisdiction, Lewis , 45 C.M.R. at 937

. Furthermore , o n March 28, 19 74, the “ [ p ] laintiff’s bad conduct discharge was administratively changed to a general discharge under h onorable conditions by reason of convenience of the government, and ” the plaintiff “ was assigned a re - enlistment code of RE

- 4, ” Def.’s Mem

. at 3, which “is the most restrictive re

- enlistment code the Department of the Navy issues . . . and . . . require[s] a waiver from the service headquarters ” for re

- enlistment, id. at 3
n.3. S everal years later, “[i] n 1983, [ the p ] laintiff petitioned t he Nav al Discharge Review Board . . . to upgrade his general discharge to an honorable discharge , ” but the Board denied his request after considering his “ entire military record. ” I d. at 3. In 1984, the plaintiff sought relief from the B oard “ seeking to remov e evidence of his appellate leave, unfavorable re

- enlistment code, and certain conduct marks from his record. ” Id. The plaintiff “also sought reinstatement and retroactive promotion.” Id. The
B oard denied his request s on April 3, 1984. Id. Unsatisfied with the decision , i n November of 1987, “[ the p ] laintiff requested reconsideration from the B [oard]

. ” Id.4 “The B [oard] reopened his case and found [that] relief was warranted.” Id. Accordingly, the B oard “remov[ed] service record entries re flecting the court

- martial conviction as well as certain conduct marks.” Id. “However, the B [oard] . . . denied [the p]laintiff’s reinstatement request and found that he was not entitled to back pay or constructive service credit.” Id. Finally, “ the B [ oard] affirmed the characterization of [ his] discharge as ‘general under honorable conditions’ and found the RE

- 4 re [

- ] enlistment code was not erroneous or unjust. ” Id. at 3

- 4. The plaintiff was informed of the B o a r d’ s decision on June 7, 1988. Id. at 4. On May 18, 1989, the plaintiff filed suit in this c ourt, challenging both his discharge and the B oard ’s actions. Id. at 4. The court granted summary judgment to the Secretary in that matter , “ finding that [ the p ] laintiff’s direct challenge [ of his discharge ] was time

- barred and that the B [oard ’s]” actions were not “arbitrary or capricious, [or] unsupported by substantial evidence, or erroneous in law.” Id ; Def.’s Reply , Ex hibit (“Ex

. ”) 1 ( Administrative Record Excerpt, Lewis v. Sec’y of Navy , Memorandum Opinion (D.D.C. June 29, 1990)) ; Lewis v. Sec’y of Navy , No. 89

- 1446, 1990 WL 454624 (D.D.C. June 29, 1990))

. Approximately two years later , on April 1, 1992 , the plaintiff filed a complaint in the United States Court of Federal Claims seeking judicial review “of the June 7, 1988,
B [oard] decision denying his request for reinstatement, retroactive promotion, and back pay.” Def.’s Mem. at 4. Th at court dismissed the plaintiff ’s complaint “finding that his claims were barred by the statu te of limitations applicable to th[e] court.” Id. ; see Lewis v. United States , 27 Fed. Cl. 104, 107 (1992) (interpreting the six

- year statute of limitations to run from the plaint iff’s initial discharge in 1971).5 Years l ater, o n November 7, 2008, the pla intiff again petitioned the B oard for reconsideration. Am. Compl. at 2. In addition to other documents , t his petition contained “ paragraphs from the Marine Corps Separation Manual that [ had been ] in effect at the time of the plaintiff’s discharge , ” which the plaintiff alleges “establish [ed] that the characterization of his separation from the Marine Corps [wa] s erroneous.” Id. at 3. 32 C.F.R. § 723.9 (2006) provides that the B oard will review a petition for

“ further consideration

. . . only upon presentation

. . . of new and material evidence” and that “all requests for further consideration will be initially screened by the Executive Director of the Board to determine whether” such evidence has been submitted

. 32 C.F.R. § 723.9 ; see al so Am. Compl. at 2. If the Executive Director determines that such evidence has been submitted , “ the request shall be forwar ded to the Board for a decision, ” however, absent such evidence, “the applicant will be informed that his/her request was not consi dered by the Board because it did not” meet the r equirements of the regulation. Am. Compl. at 2. In a letter dated February 3, 2009 , the Director of the
B oard allegedly informed the plaintiff that “[a]lthough at least some of the evidence . . . submitted [wa]s new, it [wa]s not material , ” and reconsideration was not appropriate because “even if th[e] information was presented to the Board, the decision would inevitably be the same

. ” 6 Id

. at 3. T he plaintiff responded in a letter asserting that the February 3, 2009 denial was based on various alleged “error[s]

. ” Id. O n March 17, 2009 , the Director wrote the plaintiff again, clarifying the basis for the decision and

6 The plaintiff’s amended C omplaint quotes extensively from a letter , dated February 3, 2009, allegedly sent to him from the Ex ecutive Director of the Board; however, the actual letter was not submitted for the Court’s review.6 reiterating that the plaintiff’s evidence was not considered new or material , a s required for reconsideration of the plaintiff’s case, and stating that the plaintiff’s application for reconsi deration “was properly denied.” I d

. at 10

- 11. 7 On May 20, 2010, the plaintiff instituted this case , id. at 1, claiming that the 2009
B oard decision was erroneous because 10 U.S.C. § 1552 (a)(1) requires that the correction of military records “be made by the Secretary acting through boards of civilians ,” id. at 1

- 2 , and that it was improper for the Executive Director of the Board to be the so le individual to “consider and adjudicate” his request for reconsideration , i d

. at 11

. In response , t he defendant contend s that the plaintiff failed to properly effect service of process, which deprives this Court of having personal jurisdiction o ver the defendant, Def.’s Mem. a t 10

- 12, that this Court lacks subject matter jurisdiction because the complaint is barred by the applicable statute of limitations, id. at 12

- 16, and that the plaintiff has failed to state a claim upon which relief may be granted because the complaint is barred by res judicata and collateral estoppel, id. at 16

- 23

. The defendant argues that the complaint is subject to dismissal on all of these grounds. Because the Court concludes that it lacks subject

- matter jurisdiction, the defendant’s other arguments for dismissal will not be addressed.

7 The Court notes that o n February 2, 2011, after filing this action, the plaintiff filed a second complaint in the United States Court of Federal Claims challenging his 1971 discharge and the B oard ’s 1988 decision denying his request for reinstatement, back pay, and constructive service credit. Def.’s M em . at 5. That court dismissed th e complaint , finding that it was barred by the statute of limitations, res judicata, and collateral estoppel. See Def.’s Mem . at 5; Lewis v. United States , 99 Fed. Cl. 772, 780, 783 (2011)

. Although the plaintiff was aware of the B oard ’s 2009 decision denying his request for reconsideration at the time he filed his second complaint in the Court of Federal Claims , the plaintiff did not raise the alleged violation of 10 U.S.C. § 1552 in that case

. Def.’s Mem. at 22.7 II. STANDARD OF REVIEW A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) requires the court to d etermine whether it has subject

- matter jurisdiction over a case . See Grand Lodge of the Fraternal Order of Police v. Ashcroft , 185 F. Supp. 2d 9, 13

- 14 (D.D.C. 2001). In assuming whether a court has subject

- matter jurisdiction, “ [t]he plaintiff bears the burden of persuasion . . . by a preponderance of the ev idence. ” Pitney Bowes, Inc. v.
USPS , 27 F. Supp. 2d 15, 19 (D.D.C. 2005); see Lujan v. Defenders of Wildlife , 504 U.S. 555, 561 (1992). In evaluating a motion t o dismiss under 12(b)(1), the court must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting [a] plaintiff the benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi , 394 F .3d 970, 972 (D.C. Cir. 2005)). However, t he
court is not limited to t he allegations in the complaint and “ may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005) (citing Herbert v. Nat’l Acad. of Sciences , 974 F.2d 192, 197 (D.C. Cir. 1992)). When evaluating pro se litigant s’ complaint s, court s are required to “ hold [such pleadings ] to a less stringent standard.” H aines v. Kerner , 404 U.S. 519, 520 (1972). Nonetheless, even pro se plaintiffs must “act diligently” to pursue their claims within th e statutorily prescribed limitation period. Cristwell v. Veneman , 224 F. Supp. 2d 54, 61 (D.D.C. 2002) (Walton, J.) (citi ng Bowden v. United States , 106 F.3d 433, 438 (D.C. Cir. 1997)).8 III. LEGAL ANALYSIS Before the Court can address the merits of the plaintiff’s claim, it must first determine w hether that claim is barred by the controlling statute of limitations. T he applicable statute of limitations is 28 U.S.C. § 2401(a) (2006), which governs suits brought by service member s seeking to correct their alleged ly improper discharge and decisions rendered by administrative review board s . See Walters v. Sec’y of Def. , 725 F.2d 107, 111, 113 (D.C. Cir. 1983); Lewis v. Sec’y of Navy , 1990 WL 454624, at *4. It 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 ac crues.” 28 U.S.C. § 2401(a)

. “Unlike an ordinary statute of limitations, § 2401(a) is a jurisdictional condition attached to the government’s waiver of sovereign immunity and, as such, must be strictly construed.” Spannaus v. DOJ , 824 F.2d 52, 55 (D.C. Cir. 1987). “A service member who seeks administrative review of his or her discharge and obtains an adverse decision from the administrative review board may apply for reconsideration of the adverse review board decision . . . .” Nihiser v. White , 211 F. Supp. 2d 125, 12 8 (D.D.C. 2002)

. 8 But “if an application [for reconsideration] is not filed within six years of the adverse review board decision , the period for filing suit [in

8 S ome courts have held that “ [a civ il] suit must be filed within six years of the adverse review board decision, regardless of whether, or when, an application for reconsideration is filed,” Nihiser , 211 F. Supp. 2d at 128

- 29, while other courts have held that “the period for filing suit ru ns from the date of reconsideration, provided that the application for reconsideration is filed within six years of the adverse review board decision,” id. at 129. Under either interpreta tion , the plaintiff’s complaint is barred by the statute of limitati ons because it was filed outside of both time periods

. At least one court has held that in a situation where the request for reconsideration i s filed more than six years after the original decision, it would nonetheless be timely if the Board on reconsideration considered “ new evidence ” or “ changed circumstances,” Green v. White , 319 F.3d 560, 566 (3d Cir. 2003); however, adherence to this rule would not aid the plaintiff in this case as the Director of the B oard found that the pla intiff failed to present any new and material evidence , and accordingly, refused to refer this matter to the Board for reconsideration.9 federal court] does not run from the date of the decision on reconsiderat ion, instead it runs from the date of the adverse review board decision .” Id. at 129 (emphasis added) (relying on Klehr v. A.O. Smith Corp. , 521 U.S. 179 (1997 ) ). “This rule prevents litigants from using the filing of applications for reconsideration to delay the running of the six year statute of limitations indefinitely, thereby thwarting those practical ends which are to be served by any limitation of the time within which an action must be brought. ” Nihiser , 211 F. Supp. 2d at 12 9 (internal quotati on marks and citation omitted). In Klehr , the Supreme Court declined to interpret the statute of limitations applicable to civil violations of the Racketeer Influenced and Corrupt Organization s Act, 18 U.S.C. §§ 1961

- 1968, to run from the date of the last “ predicate act” of the conspiracy. It reasoned that such an interpretation would “create[] a limitations period that is longer than Congress could have contemplated” and would “continue indefinitely,” interfering with the “basic objective

— repose

— that under lies limitations periods.” 521
U.S. at 187. Here, t he defendant seek s dismissal of the plaintiff’s amended complaint pursuant to Rule 12(b)(1) , arguing that it is time

- barred. 9 Def.’s Mem . at 12. The defendant
argue s that “a petition fo r reconsideration filed more than six years from the initial adverse decision does not delay the running of the six year statute of limitations, and the period for filing suit would then run from the date of the initial adverse decision

. ” Id. at 16 (interna l quotation marks and citation omitted)

. And the defendant notes that t he “[p]laintiff was informed of the B [oard] ’s decision on June 7, 1988” but failed to request

9 As noted earlier, t he defendant also claim s that the court “[l]acks [p]ersonal [j]urisdiction [o]ver [t]he [d]efendant [b]ecause [t]he [s]ervice [o]f [p]rocess [w]as [i]nsufficient” and that the “[p]laintiff [h]as [f]ailed [t]o [s]tate [a] [c]laim [u]pon [w]hich [r]elief [c]an [b]e [g]ranted [b]eca use [t]he [c]omplaint [i]s [b]arred [b]y [r]es [j]udicata [a]nd [c]ol lateral [e]stoppel.” Def.’s Mem

. at 1 0, 16.10 reconsideration from the B oard until November 7, 2008, “approximately twenty years later.” Id. at 15

- 16 . Thus, the defendant posit s that the “[p]laintiff’s complaint is barred by the statute of limitations.” Id. at 16. In opposition , the plaintiff asserts that his current “complaint originate [sic] from the violation of 10 U.S.C. § 1552 i n [his] application for correction of his military record submitted on November 7, 2008[, which] . . . occurred on February 3, 2009 , ” and as a result, he opines that he had “until February 3, 2015, to bring suit.” Pl s.’s Opp’n at 3. The defendant respond s that the “[p]laintiff merely reiterates his position that the period for filing his present suit began on February 3, 2009 , the first date B [oard] declined to consider his most recent application for reconsideration,” and that if the court were to
agree with the plaintiff ’s position , it “would provide [the p]laintiff with ‘the power to avoid the jurisdictional bar every time he submitted an application which was considered by the Bo ard.’” Def.’s Opp’n at 4

- 5 (quoting Nihiser , 211 F. Supp. 2d at 129). T he defendant maintains that “to allow this would make 28 U.S.C. § 2401 (a) meaningless.” Def.’s Opp’n at 5 (internal quotation marks and citation omitted). Finally, the defendant contends that “regardless of whether or not the reasoning of Nihiser applies here, the
B [oard] ’s rejection of the . . . [plaintiff’s] 2008 request for reconsideration” would not affect the running of the statute of limitations because the “[the p]laintiff did not submit any new evidence with that request for reconsideration.” Id. The defendant further represents that b ecause no new evidence was presented, “ the B [oard] never re - opened [the p]laintiff’s case for substantive review , . . . [and] as a result, since the B [oard] never

re - open ed [the p]laintiff’s case since the June 7, 19 88 decision, the statute of limitations lapsed in June 1994 .” Id.11 Reiterating some of the history in this case, t he plaintiff first sought review of his general discharge from the Naval Discharge Review Board in 1983. Def.’s Mem. at 3

. The Naval Disch arge Review Board denied his request shortly thereafter. Id. Then, in 1984, the plaintiff “next sought relief from the B [ oard] ” and that petition was also denied. Id. Next, i n November of 1987, the plaintiff yet again requested reconsideration by the
B oard , and it removed certain information from his record on J une 7, 1988. Id

. at 3

- 4

. The plaintiff then waited twenty years and six months before again petitioning for reconsideration by the B oard on November 7, 2008. 10 See id. at 15

- 16

. Applying the

r ule that an application for reconsideration must be filed within six years after the adverse review board decision was issued or the “period for filing suit does not run from the date of the decision on reconsideration, [but] instead it runs from the date of the adverse review board decision, ” Nihiser , 211 F. Supp. 2d at 129, the plaintiff was required to file th e m atter now before the Court by no later than June 7, 199 4 , six years after the B oard denied “ [the p]laintiff’s reinstatement request and found that he was not entitled to back
pay or constructive service credit, . . . affirmed the characterization of [his] discharge as ‘general under honorable conditions , ’ and found the . . . re [

- ] enlistment code [appli cable to the plaintiff] was not erroneous o r unjust,” Def.’s Mem. at 3

- 4. This conclusion is required because the plaintiff did not seek reconsideration of the 1988 denial until more than six years after the adverse review board decision; accordingly, it is inappropriate to calculate the limitati ons period from the date of the 2009 reconsideration date. See

10 The p laintiff was not required to file his original petition for administrative review within six years of his initial discharge in order t o meet statute of limitation requirements, see Carter v. Dept. of Navy , 2006 WL 2471520, at *5 (D.D.C. 2006) (Walton, J.); however, after petitioning for review from the B oard in 1988 and receiving an adverse decision in 1989 , he had only six years from th at date to file a petition for reconsideration in order for his claim to remain timely f or purposes of pursuing a civil lawsuit. T he plaintiff failed to meet that deadline.12 Nihiser , 211 F. Supp. 2d at 129. Therefore, this case is time

- barred

. Interpreting the statute of limitations to run from the date of the plaintiff’s last administrative appeal , regardless o f when the administrative appeal was filed , would allow the plaintiff to toll the limitations period “indefinitely,” which would certainly “create[] a limitations period . . . longer than Cong ress could have contemplated.” Klehr , 521 U.S. at 187.
IV. CONC LUSION For the reasons set forth above, t he Court concludes that the plaintiff’s amended complaint is barred by the controlling statute of limitations. Accordingly, the defendant’s
mot ion to dismiss the plaintiff’s a mended Complaint is granted , as this Court lacks subject

- matter jurisdiction to entertain this matter

. 11
SO ORDERED 12

REGGIE B. WALTON United States District Judge

11 Because the Court finds the plaintiff’s claims are barred by the statute of limitations, it is not necessary for the Court to consider the plaintiff’s cross - motion for summary judgment.

12 An o rder will be issued contemporaneously with this memorandum opinion (1) dismissing the plaintiff’ s a mended Complaint, (2) dismissing the pla intiff’s cross - motion for summary j udgment due to lack of subject

- matter jurisdiction , and (3) closing this case.