Opinion
CIVIL 6:23-CV-00564-ADA-JCM
05-02-2024
KATHRYN WALKER, Plaintiff, v. CHRISTINE E. WORMUTH, SECRETARY OF THE ARMY, Defendant.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
JEFFREY C. MANSKE, UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court are Defendant Christine E. Wormuth, Secretary of the Army's Motion to Dismiss (ECF No. 7), Plaintiff's Response (ECF No. 8), and Defendant's Reply (ECF No. 10). For the following reasons, the undersigned RECOMMENDS Defendant's Motion be GRANTED.
I. BACKGROUND
Plaintiff Kathryn Walker sues the Secretary of the Army under the Administrative Procedure Act (“APA”), 5 U.S.C. § 702 et seq., which gives a right of review for persons suffering legal wrongs because of agency action. Walker seeks review of a decision rendered by the Army Board for Correction of Military Records (“ABCMR”). Walker is a former United States Army Reserve Major who served from 1989 until 2006, when she was separated from the Army with an other than honorable discharge. Compl. (ECF No. 1) at ¶ 13; Def.'s Mot. at 3. In 2003, prior to her discharge, Walker began experiencing pain in her hand and knee. Compl., Ex. 2. She contends that the Army insufficiently considered her injury and failed to properly compensate her. Compl. at ¶¶ 37-45.
The dispute centers around two requests that Walker filed with ABCMR. The first was filed in August of 2012 and decided on November 27, 2012; the second was filed in October of 2015 and decided on August 3, 2017. Compl. ¶ 31; Def.'s Mot. at 4. Both requests sought substantially similar relief and were denied. Def.'s Mot. at 4-7. The first application requested (1) removal of human resource documents related to Walker's involuntary separation; (2) evaluation by a Medical Evaluation Board; and (3) incapacitation pay from August 20, 2003, through the date of completion of her physical disability evaluation. Id. at 4. The second application requested (1) incapacitation pay from September 4, 2003, through February 4, 2004; (2) processing for physical disability evaluation and administrative separation; (3) revocation of her Army Reserve discharge orders; and (4) reinstatement in the Army Reserve in the rank of major. Id. at 6.
The Record of Proceedings released with ABCMR's 2017 decision states that, “The applicant requests reconsideration of her earlier requests.” Compl., Ex. 7. Walker's application to the Board summarized her request as seeking “correction of an alleged error or injustice that occurred on 29 November 2012 in the ABCMR's Record of Proceedings.” Id.
Walker filed this suit on August 3, 2023. Defendant moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1), arguing the statute of limitations had expired. Def.'s Mot. at 9. There is a six-year statute of limitations in civil actions against the United States. 28 U.S.C. § 2401(a).
The Army also argues that res judicata and issue preclusion bar Plaintiff's claims based on earlier litigation involving the same claims. See Walker v. United States, 117 Fed.Cl. 304 (2014). However, the earlier litigation was dismissed for lack of subject matter jurisdiction, and the Fifth Circuit does not allow claim preclusion for rulings on subject matter jurisdiction. Id. at 317-20; Bank of La v. Fed Deposit Ins. Corp., 33 F.4th 836, 838 (5th Cir. 2022). The precluded issue would be the subject matter jurisdiction for the statute Walker filed under, which was 37 U.S.C. § 204(g)(1). See Walker, 117 Fed.Cl. at 306. Walker presents a new cause of action, the APA, and may assert a new basis for jurisdiction that was not precluded. See Bank of La., 33 F.4th at 838.
II. LEGAL STANDARDS
Rule 12(b)(1) allows a party to assert lack of subject-matter jurisdiction as a defense to suit. Fed.R.Civ.P. 12(b)(1). Federal district courts are courts of limited jurisdiction and may only exercise such jurisdiction as is expressly conferred by the Constitution and federal statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court properly dismisses a case for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v. U.S., 281 F.3d 158, 161 (5th Cir. 2001). “Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.” Id. In ruling on a Rule 12(b)(1) motion, the court may consider any one of the following: (1) the complaint alone; (2) the complaint plus undisputed facts evidenced in the record; or (3) the complaint, undisputed facts, and the court's resolution of undisputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
III. DISCUSSION
Defendant argues that Plaintiff's claim is untimely because there is a six-year statute of limitations and over six years have passed since the 2012 ABCMR decision. Def's Mot. at 9. Walker counters by arguing that the six-year statute of limitations began anew after the 2017 decision, making the complaint timely. Pl.'s Resp. at 3.
The APA's statute of limitations expires six years after “some direct, final agency action involving the particular plaintiff.” Dunn-McCampbell Royalty Int. v. Nat'l Park Serv., 112 F.3d 1283, 1287 (5th Cir. 1997) (applying this standard when plaintiffs challenge the application of agency rules). The question, therefore, is (1) whether the 2012 decision was “final agency action,” and (2) whether the statute of limitations “reset” when the Board reviewed its decision in 2017. See Lee v. Wynne, 384 Fed.Appx. 431, 432-33 (5th Cir. 2010).
First, ABCMR's 2012 decision was a final agency action. Final agency action within the scope of the APA is an action that (1) “marks the consummation of the agency's decisionmaking process” and (2) “by which rights or obligations have been determined, or from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted). Walker does not allege that the 2012 action was not final. Indeed, ABCMR's decision marked the consummation of the decisionmaking process when it was delivered with notice from the Director of the Board that explained, “The decision in your case is final.” Def.'s Mot., Ex. 1. The possibility of review “is a common characteristic of agency action .. [that] does not make an otherwise definitive decision nonfinal.” Army Corps of Eng'rs v. Hawkes, 578 U.S. 590, 598 (2016). The Board also defined the obligations of Walker and the Army when it denied all relief that Walker sought from the Board. Compl., Ex. 7. Moreover, the Code of Federal Regulations provides that ABCMR's decision is final when it “[d]enies any application.” 32 C.F.R § 581.3(g)(2)(i). ABCMR's 2012 decision was a final agency action, and thus the statute of limitations to review that decision started running in 2012.
Second, ABCMR's 2017 decision did not reset the statute of limitations because Walker failed to present new evidence reflecting changed circumstances. The Third Circuit's “restart rule” allows for accrual on the statute of limitations to reset if a later proceeding re-opens based on a petition containing new evidence. Green v. White, 319 F.3d 560, 566 (3d Cir. 2003). The Fifth Circuit has neither endorsed nor rejected the rule; however, the Fifth Circuit has made clear that if the Third Circuit rule applies, it only applies if there is new evidence that reflects changed circumstances. Lee, 384 Fed.Appx. at 433. In Lee, the Fifth Circuit Court of Appeals refused to apply the restart rule because although the Air Force Board for Correction of Military Records re-opened proceedings with new evidence, the new evidence merely substantiated Lee's earlier claims in prior proceedings and did not show changed circumstances. Id. The Supreme Court has held similarly for review of agency decisions grounded in statutes other than the APA. E.g., Interstate Com. Comm'n v. Bd. of Locomotive Eng'rs, 482 U.S. 270, 278-79 (1987) (declining to review re-opened proceedings by the Interstate Commerce Commission when they were reopened only for prior “material error”). Similarly, Walker's 2017 proceeding could only restart the statute of limitations if new evidence reflected changed circumstances. See Lee, 384 Fed.Appx. at 433.
Walker's claim did not provide new evidence that reflected changed circumstances. It is true that ABCMR's 2017 Record of Proceedings stated that “[Walker's] argument is new evidence that was not previously considered by the Board and warrants consideration at this time.” Compl., Ex. 7. However, Walker's new arguments alleged administrative failures by the Board in its 2012 decision and did not suggest any changed circumstances. Id. Walker's arguments alleged that in 2012 the Board relied on unapplicable regulations, failed to apply the U.S. Code, and improperly followed Army Regulations. Id. Walker's complaints about the Board's 2012 ruling may have merit, but any administrative failures of the Board existed in 2012 and could have been appealed within the six years following that decision.
Walker provided an additional document to ABCMR in 2015-a Statement of Medical Examination and Duty Status that showed she was diagnosed with carpal tunnel syndrome in both hands on August 8, 2003. Compl., Ex. 7. While the document was new, the information was not as the Board knew that Walker had been diagnosed with carpal tunnel syndrome when it rendered its 2012 decision. Def.'s Mot., Ex. 1. Because Walker's 2017 application did not provide new evidence reflecting changed circumstances, it does not reset the statute of limitations. See Lee, 384 Fed.Appx. at 433.
Walker could have appealed the ABCMR's decisions under the APA until November 27, 2018, six years after the 2012 decision. She did not appeal the decision in time. When the APA's limitations period expires, it deprives the Court of subject matter jurisdiction. Dunn-McCampbell, 112 F.3d at 1287. Because she failed to appeal, the statute of limitations expired, and the Court lacks subject matter jurisdiction.
IV. CONCLUSION
For the foregoing reasons, the undersigned RECOMMENDS that that the Secretary of the Army's Motion to Dismiss (ECF No. 7) be GRANTED.
V. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.