Battle v. Sec'y U.S. Dep't of Navy
| Decision Date | 28 December 2018 |
| Docket Number | No. 18-1736,18-1736 |
| Parties | DAVID L. BATTLE, Appellant v. SECRETARY UNITED STATES DEPARTMENT OF NAVY; DEPARTMENT OF THE NAVY |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
On Appeal from the United States District Court for the Western District of Pennsylvania
Submitted Under Third Circuit L.A.R. 34.1(a)
November 2, 2018
Before: CHAGARES, JORDAN, and VANASKIE, Circuit Judges
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.
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 inservice 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
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).
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, 5U.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.
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 notpreviously 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) ( 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) ( ). Furthermore, an agency's explanation for "affirming a prior denial" does not reopen...
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