471 F.3d 186 (D.C. Cir. 2006), 05-5052, Smalls v. United States

Docket Nº:05-5052.
Citation:471 F.3d 186
Party Name:Eugene C. SMALLS Appellant v. UNITED STATES of America, et al., Appellees.
Case Date:December 19, 2006
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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471 F.3d 186 (D.C. Cir. 2006)

Eugene C. SMALLS Appellant


UNITED STATES of America, et al., Appellees.

No. 05-5052.

United States Court of Appeals, District of Columbia Circuit.

December 19, 2006

Argued September 19, 2006.

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Appeal from the United States District Court for the District of Columbia (No. 03cv02620).

Eugene R. Fidell, appointed by the court, argued the cause and filed the briefs as amicus curiae in support of appellant.

Eugene C. Smalls, pro se, filed briefs.

Oliver W. McDaniel, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Kenneth L.

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Wainstein , U.S. Attorney at the time the brief was filed, and Michael J. Ryan, Assistant U.S. Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: Henderson, Rogers and Griffith, Circuit Judges.


Rogers, Circuit Judge.

This is an appeal from the denial of two motions for reconsideration of a judgment dismissing, on res judicata grounds, an amended complaint for the correction of military records. Because the district court did not abuse its discretion in denying these motions, which are properly considered as filed pursuant to Fed.R.Civ.P. 60(b), we affirm.


Eugene C. Smalls served in the United States Marine Corps from 1978 to 1980. He received a general discharge under honorable conditions for a physical disability existing prior to his service. He later succeeded in having his general discharge changed to an honorable discharge. Between 1986 and 1992, Smalls repeatedly sought to have the Board for Correction of Naval Records ("BCNR") amend his record to reflect a retirement for medical disability. In 1997, the Secretary of the Navy affirmed the BCNR's denial of Smalls's requests. Thereafter, Smalls filed two complaints under the Administrative Procedure Act ("APA").

In an amended complaint filed in the federal district court of Hawaii, Smalls sought correction of his military record and damages in an amount less than $10,000 for negligent infliction of emotional distress and defamation. The district court ruled that his APA claim was timely, but dismissed his emotional distress and defamation claims. Smalls v. United States, 87 F.Supp.2d 1055, 1060 (D. Haw. 2000). On Smalls's motion for judgment on the administrative record, the district court determined that the BCNR's 1997 denial of Smalls's requests was not arbitrary or capricious because it had followed the correct procedures and had made specific findings that were sufficient to support its decision. On appeal, the Ninth Circuit initially affirmed, Smalls v. England, 41 F. App'x 989, 989 (9th Cir. 2002), but subsequently remanded the case for the district court to explain the basis on which it had exercised jurisdiction, Smalls v. England, 50 F. App'x 379, 379 (9th Cir. 2002). Following the remand, where the district court claimed jurisdiction based in part on the Little Tucker Act, 28 U.S.C. § 1346(a)(2), the Ninth Circuit transferred the appeal to the United States Court of Appeals for the Federal Circuit on the ground that court had exclusive jurisdiction. Smalls v. United States, No. 01-15827 (9th Cir. Apr. 14, 2003). The Federal Circuit held that Smalls's claim was untimely because his complaint was filed more than six years after his discharge. Smalls v. United States, 87 F. App'x 167, 167-68 (Fed. Cir. 2004), cert. denied, 543 U.S. 942, 125 S.Ct. 373, 160 L.Ed.2d 254 (2004). It vacated the district court's opinion, and, upon remand, the Hawaii district court dismissed the amended complaint for lack of jurisdiction.

Subsequently, in an amended complaint filed in the federal district court of the District of Columbia, Smalls challenged the Secretary's denials of April 11, 1997 and January 6, 2003 of his requests for disability retirement status. The government moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that the complaint was barred by the statute of limitations, by

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res judicata, and by the Tucker Act because Smalls sought monetary relief in excess of $10,000. On December 8, 2004, the district court granted the motion to dismiss, ruling that res judicata, or claim preclusion, barred the amended complaint. The court found that Smalls had merely "repackaged . . . in virtually identical form" his earlier Hawaii complaint challenging the same underlying decisions: Smalls's discharge from the Marines without disability pay and the BCNR's decisions concerning his retirement status.

On December 27, 2004, Smalls filed a motion for reconsideration, which the district court denied on February 8, 2005, relying on the same reasons it gave for dismissing his amended complaint. On February 9, 2005, Smalls filed a notice of appeal from the December 8, 2004 order dismissing his amended complaint. On March 4, 2005, Smalls filed a second motion for reconsideration, which the district court denied on March 11, 2005, again relying on the reasons in its decision dismissing the amended complaint. On March 25, 2005, Smalls filed an amended notice of appeal, including the order denying reconsideration.

This court dismissed as untimely Smalls's appeal from the December 8 order dismissing his amended complaint, see fed. R. App. P. 4(a)(1)(B), but held that the March 25...

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