Lewis v. Sec'y of the Navy

• Decision Date: 01 July 2016
• Docket Number: Civil No. 10-0842 (RBW)
• Citation: 195 F.Supp.3d 277
• Parties: James M. LEWIS, Plaintiff, v. SECRETARY OF the NAVY, Defendant.
• Court: U.S. District Court — District of Columbia

195 F.Supp.3d 277

James M. LEWIS, Plaintiff,

v.SECRETARY OF the NAVY, Defendant.

Civil No. 10-0842 (RBW)

United States District Court, District of Columbia.

Signed July 1, 2016

James M. Lewis, Grandview, MO, pro se.

Melissa Gaspar Rasmussen, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

James M. Lewis, the pro se plaintiff in this civil case, seeks injunctive and declaratory relief under the Administrative Procedure Act (the "APA"), 5 U.S.C. §§ 701 –706 (2012), challenging regulations governing requests for reconsideration of decisions issued by the Department of the Navy's Board for Correction of Naval Records (the "Board") regarding military personnel records, Complaint ("Am. Compl.") at 1.¹ Specifically, the plaintiff alleges that the regulations implemented by the Secretary of the Navy (the "Secretary")² contravene 10 U.S.C. § 1552 (2012) by "confer[ring] adjudicatory power on staff members who work for, but are not members of [the Board]" and allowing them "to evaluate reconsideration requests submitted by veterans and active members of the Navy and Marine Corps." Am. Compl. at 1. Before the Court are the plaintiff's motion for summary judgment, the Plaintiff's Motion Pursuant to Federal Rules of Evidence, Rule 201, Judicial Notice of Adjudicative Facts/And Supplementary to Motion for Summary Judgment ("Pl.'s Mot. for Summ. J."), and the defendant's motion to dismiss this case on grounds of mootness pursuant to Federal Rule of Civil Procedure 12(b)(1),³ Defendant's Opposition to Plaintiff's Motion for Summary Judgment and Cross Motion for Mootness ("Def.'s Mot.") at 1. For the reasons that follow, the Court concludes that it must deny the defendant's motion to dismiss and grant the plaintiff's motion for summary judgment.⁴

I. BACKGROUND

A. Statutory and Regulatory Framework

Under 10 U.S.C. § 1552(a)(1), "[t]he Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice." In most circumstances, "such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department." Id.⁵ Based on this statutory authority, the Secretary of the Navy established the Board to oversee the "correction of naval and marine records" and implemented regulations codified in 32 C.F.R. Part 723 to govern correction proceedings. See 32 C.F.R. §§ 723.1 –723.2.

If an application for correction is denied by the Board, the regulations offer the following opportunity for reconsideration:

[F]urther consideration will be granted only upon presentation by the applicant of new and material evidence or other matter not previously considered by the Board. New evidence is defined as evidence not previously considered by the Board and not reasonably available to the applicant at the time of the previous application. Evidence is material if it is likely to have a substantial effect on the outcome. All requests for further consideration will be initially screened by the Executive Director of the Board to determine whether new and material evidence or other matter (including, but not limited to, any factual allegations or arguments why the relief should be granted) has been submitted by the applicant.

If such evidence or other matter has been submitted, the request shall be forwarded to the Board for a decision. If no such evidence or other matter has been submitted, the applicant will be informed that his/her request was not considered by the Board because it did not contain new and material evidence or other matter.

32 C.F.R. § 723.9.

B. Factual and Procedural History

In 1970, the plaintiff, then an enlisted member of the United States Marine Corps, was found guilty by a general court-martial "of assault with a deadly weapon and multiple specifications of disrespect, striking a non-commissioned officer, and making threats." Lewis v. Sec'y of the Navy, 892 F.Supp.2d 1, 2 (D.D.C.2012) (Walton, J.).⁶ "After completing his term of confinement in March of 1971," the United States Court of Military Appeals "reversed [the p]laintiff's ... conviction" based on "a jurisdictional defect in the court-martial," which prompted the Navy to change the plaintiff's bad conduct discharge "to a general discharge under honorable conditions by reason of convenience of the government." Id. at 2–3 (citations omitted). Subsequently, the plaintiff petitioned the Board for the removal of derogatory information from his military record, as well as reinstatement and retroactive promotion. Id. at 3. The Board initially denied his petition, but upon request by the plaintiff for reconsideration, determined in 1988 that changes to the plaintiff's service records were warranted. Id. However, the Board's 1988 decision upheld its prior determinations to deny reinstatement and retroactive promotion, and affirmed the characterization of his discharge. Id.

On November 7, 2008, the plaintiff filed another petition with the Board, again seeking reconsideration of the Board's prior decision concerning his military records. See Am. Compl. at 2. In a letter dated February 3, 2009, the Executive Director of the Board informed the plaintiff of his decision that "reconsideration [was] not appropriate" because "[a]lthough, at least some of the evidence that [the plaintiff] [had] submitted [was] new, it [was] not material" and therefore "even if this information [had been] presented to the Board, the decision would inevitably [have been] the same." Id. at 3. The plaintiff responded to the letter, arguing, in part, that the Executive Director's evaluation of his request for reconsideration was improper in light of Lipsman v. Secretary of the Army, 335 F.Supp.2d 48 (D.D.C.2004), which invalidated a similar Army regulation permitting review of reconsideration petitions by the Board's staff, rather than the Board itself, as inconsistent with the language of 10 U.S.C. § 1552. Id. at 53–54.⁷ The Executive Director subsequently confirmed that the plaintiff's case would not be reconsidered, stating, in relevant part, that "this Board's regulations are different than those of the Army and no court has found that the Board's processing of reconsideration requests is improper." Id. at 10–11. The plaintiff filed the current case in 2010, challenging the Executive Director's decision denying reconsideration. See id. at 11; [Original] Complaint at 1.

Following the opportunity for complete briefing of the issue, the Court granted the defendant's motion to dismiss, finding that the plaintiff's claim was time-barred by 28 U.S.C. § 2401(a) (2006), the statute of limitations that governs challenges to military records, and therefore, the Court lacked subject matter jurisdiction over the plaintiff's claim. Lewis, 892 F.Supp.2d at 5, 7. In reaching this conclusion, the Court adopted the reasoning of Nihiser v. White, 211 F.Supp.2d 125 (D.D.C.2002), which held that the six-year limitations period under § 2401(a) begins running on the date of the adverse review board decision and bars review if the plaintiff does not file an application seeking reconsideration within six years of the adverse decision. Lewis, 892 F.Supp.2d at 5–7 (citing Nihiser, 211 F.Supp.2d at 129 ). Applying the ruling in Nihiser, the Court found that the limitations period began when the plaintiff received an adverse board decision in 1988, and that his claim was therefore time-barred. Id. at 7. On April 15, 2013, the Court denied the plaintiff's motion for reconsideration of that decision, reiterating its conclusions that the plaintiff's claims were time-barred. Order at 3–5 (Apr. 15, 2013), ECF No. 30. The plaintiff then appealed the Court's decision to the District of Columbia Circuit. Notice of Appeal at 1, ECF No. 31.

On January 23, 2014, the Circuit remanded the case to this Court with instructions "to consider the claim actually posed." Mandate at 1, ECF No. 42. Specifically, the Circuit remanded the case based on its finding that the plaintiff actually "challenged the lawfulness of the Navy regulation 32 C.F.R. § 723.9, not the substance of the reconsideration denial." Id. In response to the Circuit's remand, the plaintiff filed his motion for summary judgment, see Pl.'s Mot. for Summ. J. at 1, and the defendant filed a motion for remand to the Board, see Motion for a Voluntary Remand to the Agency and Opposition to Plaintiff's Motion for Judicial Notice and Substantive Relief at 1. On September 2, 2014, the Court denied the defendant's motion for remand and held in abeyance the plaintiff's motion for summary judgment pending further briefing by the parties. Order at 1 (Sept. 2, 2014), ECF No. 48.

Two weeks after the Court's September 2, 2014 Order, the Assistant Secretary of the Navy for Manpower and Reserve Affairs ("Assistant Secretary") issued a Memorandum for the Executive Director, Board for Correction of Naval Records ("Executive Director"), stating that "[e]ffective immediately, the policies and procedures used to process ‘reconsideration’ cases ... will be changed to comply with the decision of the U.S. District Court for the District of Columbia in Lipsman v. Secretary of the Army, 335 F.Supp.2d 48 (D.D.C.2004)." Def.'s Mot., Exhibit ("Ex.") 2 (Memorandum for the Executive Director, Board for Correction of Naval Records) at 1. This change is accomplished in the following manner: if a petition for reconsideration is received within one year of the most recent Board decision, the Executive Director will review the request to determine if it contains any new evidence. Def.'s Mot. at 4; Def.'s Mot., Ex. 1 (Declaration of Mr. Robert O'Neill ("O'Neill Decl.")) ¶ 7. If the petition does contain new evidence, it will be referred to the Board to determine whether the new evidence demonstrates a material error or injustice. Def.'s Mot. at 4; Def.'s Mot., Ex. 1 (O'Neill...