Smalls v. Spencer
| Decision Date | 28 January 2021 |
| Docket Number | Civil Action No. 17-606 (TJK) |
| Parties | EUGENE C. SMALLS, Plaintiff, v. RICHARD V. SPENCER et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
This suit is but one of many legal challenges that Eugene Smalls has brought stemming from the Department of the Navy's 1980 decision to discharge him without severance pay. The Navy did so because it determined that the foot condition from which he suffered both existed before his service and was not aggravated by his service. Now, over forty years later, Smalls invokes the Administrative Procedure Act to request that this Court review the Navy's 2016 denial of his latest request to reconsider its 1986 denial of his application to correct his military records. The parties have cross-moved for summary judgment. Their first set of arguments addresses whether the Navy's 2016 decision is reviewable by the Court, though under this Circuit's precedent this question is more aptly characterized as one that implicates the Court's subject-matter jurisdiction. Smalls argues that the Navy reopened his case and issued a judicially reviewable decision based on new evidence, while Defendants contend that the decision is unreviewable because the Navy declined to reopen its decision, and simply affirmed its prior one without receiving new evidence. For the reasons explained below, the Court will grant Defendants' motion on this ground, deny Smalls', and dismiss the case for lack of subject-matter jurisdiction.
Smalls entered the Marine Corps in 1978 and served on active duty until his discharge because of a physical disability in 1980. ECF No. 128-9 at 63-64. His medical examination upon his entrance into service identified no problems with his feet. Id. at 71-72. But beginning in July 1979 and continuing into 1980, he began complaining of foot pain after "prolonged standing or marching." Id. at 77. A Navy Medical Board diagnosed him with symptomatic bilateral pes planus—flat feet—and found that the condition was "not incurred in or aggravated by service." Id. at 78. Thus, the Marine Corps discharged him without severance pay because of this physical disability. Id. at 63.
In 1985, Smalls submitted his first application to the Board for Correction of Naval Records (BCNR), seeking to change his records to reflect that his foot condition was in fact aggravated by his service. Id. at 64. To evaluate his application, the BCNR requested an opinion from the Navy Central Physical Evaluation Board (CPEB). Id. at 65. The CPEB recommended that the application for correction be denied, concluding that Smalls' condition existed before enlistment and was not aggravated by his service. Id. Smalls received a copy of the CPEB report, and he answered with a letter representing that he had experienced no problems with his feet before enlisting and arguing that his service caused his condition. Id. at 66-67. He also noted that the Department of Veterans Affairs had awarded him a percentage of his disability compensation. Id. at 64. In June 1986, the Navy responded and denied Smalls' application for correction. Id. at 68.
The next year, Smalls submitted a letter to the BCNR, summarizing his medical history and again representing that he had suffered from no foot problems before his service. Id. at 69. The letter landed on the desk of Assistant Secretary of the Navy Chase Untermeyer. Id. at 70.Untermeyer referred the matter back to the CPEB, asking why Smalls had been allowed to enlist if he suffered from flat feet before entering the Marines, and why there was no documentation of his foot issues at that time. Id. at 71. The CPEB explained that Smalls' flat feet were mild, and so they might not have been found during a routine physical, and in any event a mild condition would not have disqualified him from enlisting while he was asymptomatic. Id. at 72. The CPEB also explained that Smalls' feet became symptomatic as part of a normal progression of the condition, rather than being aggravated by service, and Smalls' medical records did not reflect an injury or trauma that would have otherwise worsened it. Id. From 1988 to 2007, Smalls filed twelve more applications for correction, all of which were denied. ECF No. 128-3 at 49.
Smalls simultaneously challenged the BCNR's decisions in the federal courts. In 1998, he sued in the District of Hawaii, challenging the BCNR's 1992 denial of one of his applications for correction. The court dismissed some of his related claims, Smalls v. United States, 87 F. Supp. 2d 1055 (D. Haw. 2000), and ultimately affirmed the BCNR's decision on the merits. Smalls v. United States, 87 F. App'x 167, 167 (Fed. Cir. 2004). His appeal was transferred to the Federal Circuit, which found his claim for correction of his records untimely because it was filed more than six years after his discharge. Id. at 168. In 2003, Smalls also sued in this District. Smalls v. United States, No. 03-cv-2620 (JDB). The district court dismissed the case on res judicata grounds, and the D.C. Circuit affirmed. Smalls v. United States, 471 F.3d 186 (D.C. Cir. 2006). In 2007, Smalls sued yet again, this time in the Court of Federal Claims, asking that court to compel reconsideration of his application for correction based on new evidence. The case was dismissed as time-barred and upheld by the Federal Circuit. Smalls v. United States, 298 F. App'x 994, 995-97 (Fed. Cir. 2009).
Several years later, in August 2015, Smalls turned again to the BCNR and filed another application for correction. ECF No. 128-6 at 34. In May 2016, the BCNR denied his request by letter, stating: ECF No. 128-6 at 29.
Smalls then filed this suit to challenge the BCNR's decision. ECF No. 1. He amended his complaint twice, ECF Nos. 11 and 38, most recently to clarify that he challenges the BCNR's 2016 letter denying his request for correction as arbitrary and capricious under the Administrative Procedure Act (APA). ECF No. 37 at 2; ECF No. 38 ¶¶ 8, 77.1
Smalls then moved for summary judgment, ECF No. 100, arguing that the Court could review the BCNR's 2016 decision because it had reopened his case after being presented new evidence.2 He identifies the following as purportedly new evidence: recent letters and reports prepared by his doctors asserting that he was misdiagnosed when he was discharged, ECF No. 38 ¶ 46; ECF No. 128-4 at 5-11; ECF No. 128-5 at 27-34; ECF No. 128-6 at 13-27; recent orders from the Court of Appeals for Veterans Claims awarding him an increased disability percentage retroactively, ECF No. 100 at 17, 21; ECF No. 128-8 at 88; recent cases allegedly similar to his that he argues the BCNR should follow as precedent, ECF No. 100 at 18-19; ECF No. 128-4 at31-39; ECF No. 128-5 at 12-25; letters and affidavits from family and friends attesting to his physical health before his entering the military, ECF No. 120-1 at 23, 25; and a 1981 letter from his doctor expressing a "second opinion" about his foot condition, ECF No. 100 at 40; ECF No. 128-6 at 4. Defendants then cross-moved for summary judgment, ECF No. 107. To begin with, they assert that the BCNR's 2016 decision is unreviewable by this Court because it did not reopen Smalls' case in 2016 and it considered no new evidence. ECF No. 107 at 20-23. In the alternative, Defendants argue, summary judgment should be granted in their favor based on res judicata and laches. ECF No. 107 at 23-24.
Federal courts are courts of limited jurisdiction. See Gen. Motors Corp. v. EPA, 363 F.3d 442, 448 (D.C. Cir. 2004). The law presumes that "a cause lies outside [the Court's] limited jurisdiction" unless the party asserting jurisdiction establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "A court has an 'independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.'" Walsh v. Comey, 118 F. Supp. 3d 22, 25-26 (D.C. Cir. 2015) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)).
An agency's refusal to reconsider an earlier order is "nonreviewable" unless "the agency, despite denying reconsideration, clearly states or indicates that it has reopened the matter," Palacios v. Spencer, 906 F.3d 124, 127-28 (D.C. Cir. 2018) (quoting Sendra Corp. v. Magaw, 111 F.3d 162, 167 (D.C. Cir. 1997)), or "the request for reconsideration is based upon new evidence or changed circumstances," United States Postal Serv. v. Postal Reg. Comm'n, 841 F.3d 509, 512 (D.C. Cir. 2016). In other words, "when an agency merely affirms its original decision in denying a petition for reconsideration, it has not rendered a judicially reviewabledecision." Palacios, 906 F.3d at 127. "The Court has treated nonreviewability under such circumstances as jurisdictional. . . ." Schoenbohm v. F.C.C., 204 F.3d 243, 250 (D.C. Cir. 2000) (citing ICC v. Bhd. of Locomotive Engineers, 482 U.S. 270, 287 (1987)); see also Fritch v. U.S. Dep't of State, 220 F. Supp. 3d 51, 60-61 (D.D.C. 2016). As explained below, the Court lacks subject-matter jurisdiction to review the BCNR's 2016 decision because the BCNR did not clearly state or demonstrate that it reopened Smalls' case and because he did not submit new evidence or changed circumstances for the BCNR to consider.3
"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. . . ." Sendra Corp. v. Magaw, 111 F.3d 162, 167 (D.C. Cir. 1997) (quoting Morris v. Sullivan, 897 F.2d 553, 558 (D.C. Cir. 1990)). Because a clear statement is required, courts will not "look...
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