Detweiler v. Pena, 93-5214

Citation38 F.3d 591
Decision Date01 November 1994
Docket NumberNo. 93-5214,93-5214
Parties, 63 USLW 2294 George H. DETWEILER, Jr., LCDR, USCG (Ret.), Plaintiff-Appellant, v. Federico F. PENA, Secretary of Transportation, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (Civil Action No. 92cv00398).

Eugene R. Fidell, Washington, DC, argued the cause and filed the briefs for appellant George H. Detweiler, Jr.

Michael J. Ryan, Asst. U.S. Atty., Washington, DC, argued the cause for appellee. With him on the brief were Eric H. Holder, Jr., U.S. Atty., R. Craig Lawrence, Michael T. Ambrosino, and John D. Bates, Asst. U.S. Attys.

Before WALD, SENTELLE and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

This appeal arises from former Lieutenant Commander Detweiler's action in the district court seeking review of a decision by the Coast Guard Board for the Correction of Military Records ("BCMR") dismissing his application as untimely. The district court upheld the BCMR's determination that the tolling provision found in Sec. 205 of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. app. Sec. 525 (Supp. IV 1992) ("SSCRA"), does not suspend the BCMR's three-year statute of limitations during a servicemember's period of active duty. 10 U.S.C. Sec. 1552 (Supp. IV 1992). The district court also held that the BCMR's refusal to waive its limitations period "in the interest of justice" was subject to judicial review, but that the Board's discretion had been appropriately exercised in this case. Because we hold that Sec. 205 of the SSCRA does in fact toll the BCMR's three-year statute of limitations and Detweiler's application was therefore timely filed, we need not reach the question whether the BCMR's interest-of-justice determinations are judicially reviewable. We reverse and remand the case to the district court for return to the BCMR so that it may decide Detweiler's petition on the merits.

I. BACKGROUND

From 1974 until June 1994, Detweiler was an officer in the Coast Guard. The Coast Guard employs Officer Evaluation Reports ("OERs"), completed at regular intervals by an officer's superiors, to compile information relevant to promotion. Detweiler's OERs from the time he joined the service until 1982 were satisfactory, and he received all promotions for which he was eligible. From 1982 to 1985, Detweiler served as Executive Officer aboard the Coast Guard vessel Bittersweet. His commanding officer for the first two years continued to give him positive OERs. His superior for the final year, Commander Sirois, was less enthusiastic and filed OERs critical of Detweiler's writing and delegating abilities, as well as his physical appearance. In 1990, for the first time, Detweiler was "passed over" for promotion, allegedly because of negative comments by Sirois in his OERs.

In 1991, Detweiler applied to the Coast Guard BCMR to have the Sirois OERs and the "pass over" expunged from his record. The BCMR denied relief without reaching the merits, holding:

1. That the application was untimely because it was filed after the BCMR's three-year statute of limitations had run.

2. That Sec. 205 of the SSCRA does not toll the BCMR limitations provision. 1

3. That Detweiler had not shown that it would be in the "interest of justice" under Sec. 1552(b) of the BCMR's authorizing statute to excuse the delay. 2

In re Detweiler, BCMR No. 177-91 (Feb. 14, 1992). Detweiler sought judicial review of the BCMR's decision in the district court under Sec. 702 of the Administrative Procedure Act. 5 U.S.C. Sec. 702 (1988). The district court agreed with the BCMR that Sec. 205 of the SSCRA does not toll the Sec. 1552(b) limitations period in the BCMR statute and that the BCMR therefore was not required to decide the merits of Detweiler's case. The court did, however, remand to the BCMR on the ground that the part of Sec. 1552(b) permitting the Board to waive the three-year limitation "in the interest of justice" requires it to perform some "cursory review" of an application's merits. Allen v. Card, 799 F.Supp. 158, 166 (D.D.C.1992). The Secretary of Transportation (to whom the Coast Guard reports) moved to alter or amend the district court order, arguing that "interest-of-justice" determinations are unreviewable because they are committed to agency discretion by law. The district court denied the motion without opinion.

On remand, the BCMR performed a "cursory review" of the merits, and found that they did not support waiving the limitations period in the "interest of justice." In re Detweiler, BCMR No. 42-93 (Nov. 20, 1992). Detweiler again appealed to the district court, arguing that the Board had not complied with the court's instructions on remand because its decision was "entirely conclusory." The district court held that the BCMR had satisfactorily complied with its mandate, and that its refusal to waive the Sec. 1552(b) limitations period was not an abuse of discretion. Allen v. Pena, No. 92-0398-TAF (D.D.C. Apr. 6, 1993).

Detweiler returned to the district court for another try following the Supreme Court's decision in Conroy v. Aniskoff, --- U.S. ----, 113 S.Ct. 1562, 123 L.Ed.2d 229 (1993), which construed Sec. 205's tolling mandate broadly in a different factual context. In a motion filed under Federal Rules of Civil Procedure 59 and 60 (authorizing in certain circumstances alteration or amendment of, or relief from, a final judgment), Detweiler asked the court to reopen his case and reverse its ruling that Sec. 205 did not toll the BCMR's limitations period. The court found no basis in Conroy to alter its earlier decision. Allen v. Pena, No. 92-0398-TAF (D.D.C. May 19, 1993). This appeal followed.

II. ANALYSIS
A. Statutory Language

The central issue in this appeal is whether the tolling provision found in Sec. 205 of the SSCRA, 50 U.S.C.App. Sec. 525, suspends the BCMR's three-year statute of limitations during a servicemember's period of active service. Section 205 provides in pertinent part:

The period of military service shall not be included in computing any period now or hereafter to be limited by any law ... for the bringing of any action ... in any court, board ... or other agency of government by or against any person in military service ... whether such cause of action ... shall have accrued prior to or during the period of such service....

50 U.S.C.App. Sec. 525 (emphasis added).

The relevant portion of the BCMR's limitations provision reads:

(b) No correction may be made under subsection (a)(1) unless the claimant or his heir ... files a request for the correction within three years after he discovers the error or injustice.

10 U.S.C. Sec. 1552.

The command of Sec. 205 is unexceptionable. It tolls "any" limitations period "now or hereafter" appearing in "any" law for the bringing of "any" action before "any" court, board or bureau. The Supreme Court has labelled this dictate "unambiguous, unequivocal, and unlimited." Conroy, --- U.S. at ----, 113 S.Ct. at 1564 (holding that Sec. 205 suspends for the duration of military service the running of time in which title to property can be redeemed under state law).

The Secretary does not dispute the plain meaning of Sec. 205's text. The district court wrote: "The government concedes that a literal reading of [Sec. 205] would appear to encompass the time period for filing with the BCMR." Allen, 799 F.Supp. at 161. The Secretary instead proffers a battery of reasons--some appealing on policy and practical grounds--why the plain language of Sec. 205 should not be controlling. First, the Secretary suggests that to follow its literal terms would deny the BCMR statute of limitations its own "plain meaning." We do not find this argument persuasive. The tolling of a statute of limitations, under certain circumstances, does not fatally impugn its effectiveness; it merely alters the date on which the statutory period begins to run or comes to an end. Indeed, the Secretary's argument would apply to any and all instances in which Sec. 205 is given effect, since by its very terms Sec. 205 applies only to existing limitations periods.

B. Canons of Construction

The Secretary next offers two canons of statutory construction to counteract the "plain meaning" interpretation of Sec. 205: recent enactments should be favored over older ones; and specific statutory provisions should prevail over general ones. These canons, whatever their combative power against a statute's plain meaning, are not appropriately invoked in this case; they apply only in the face of "irreconcilably conflicting statutes." Watt v. Alaska, 451 U.S. 259, 266, 101 S.Ct. 1673, 1678, 68 L.Ed.2d 80 (1981) (declining to apply the recent statute canon when statutes did not "irreconcilably" conflict); see Regional Rail Reorganization Act Cases, 419 U.S. 102, 133-34, 95 S.Ct. 335, 353-54, 42 L.Ed.2d 320 (1974) (rejecting the claim that a more specific statute should be read to modify a general statute on the ground that no "positive repugnancy" existed between them); Ginsburg, Feldman & Bress v. FEA, 591 F.2d 717, 720 n. 5 (D.C.Cir.1978) ("Where statutes deal with a subject in both general and detailed terms, and there is conflict between the two, the detailed expression prevails.") (emphasis supplied). Section 205 of the SSCRA and Sec. 1552 of the BCMR law are not in "irreconcilabl[e] conflict" even if Sec. 205 is permitted to toll Sec. 1552's limitations period during a servicemember's period of active service. The BCMR's three-year time limit would remain in effect for all cases where the individual was not in active service during the period from discovery of the error to the filing of the petition; requests for changes in reenlistment status and upgrades of less-than-honorable discharges made by ex-servicemembers--two substantial categories of...

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