                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 EUGENE C. SMALLS,

                    Plaintiff,

        v.                                           Civil Action No. 17-606 (TJK)

 RICHARD V. SPENCER, Secretary of the
 Navy,

                  Defendant.


                          MEMORANDUM OPINION AND ORDER

       Plaintiff Eugene Smalls, proceeding pro se, has filed a motion for leave to file a second

amended complaint. ECF No. 24 (“2d Mot. Am.”). For the reasons stated herein, his motion is

GRANTED. The second amended complaint, ECF No. 24-1 (“2d Am. Compl.”), shall be

deemed filed as of September 25, 2017. As a result, Defendant’s motion to dismiss the first

amended complaint, ECF No. 14 (“Mot. Dismiss”), is DENIED AS MOOT.

I.     Legal Standard

       Under Federal Rule of Civil Procedure 15(a)(2), if a party may no longer amend its

pleading as of right, then that “party may amend its pleading only with the opposing party’s

written consent or the court’s leave,” and “[t]he court should freely give leave when justice so

requires.” Fed. R. Civ. P. 15(a)(2). “The decision to grant or deny leave to amend . . . is vested

in the sound discretion of the trial court.” Doe v. McMillan, 566 F.2d 713, 720 (D.C. Cir. 1977).

But “it is an abuse of discretion to deny leave to amend unless there is sufficient reason, such as

undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by previous

amendments, or futility of amendment.” United States ex. rel Shea v. Verizon Commc’ns, Inc.,
160 F. Supp. 3d 16, 29 (D.D.C. 2015) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.

Cir. 1996)). “Generally, under Rule 15(a) the non-movant bears the burden of persuasion that a

motion to amend should be denied.” Johnson v. District of Columbia, No. 13-cv-1445 (JDB),

2015 WL 4396698, at *2 (D.D.C. July 17, 2015) (citing Dove v. WMATA, 221 F.R.D. 246, 247

(D.D.C. 2004)).

II.    Analysis

       In 1986, the Board for Correction of Naval Records (“BCNR”) denied Smalls’ request to

change his 1980 discharge from the Marine Corps to a medical disability retirement, which

would have entitled him to certain military retirement benefits. Smalls subsequently petitioned

the BCNR for reconsideration and was denied relief in 1992, 2000, and 2016. See 2d Am.

Compl., Ex. 1 at 31-33 (“2016 BCNR Dec.”). Smalls now seeks to amend his complaint to

clarify that under the Administrative Procedure Act (“APA”), he is challenging the BCNR’s

2016 decision. 2d Mot. Am. at 2. He asserts that this decision constituted a reopening of his

case. See 2d Am. Compl. ¶¶ 11, 15, 21, 32, 44-45, 48, 51, 57; see also 2d Mot. Am. at 1 (“[T]he

issues [are] quite different based on an application that the Board reopen[ed] for review on the

merit[s], which was never properly before them in [previous] request[s].”).

       Through his second amended complaint, Smalls appears to “fine-tune the legal and

factual basis for the relief [sought],” which “should benefit [Defendant] by providing [it] with

greater notice of what [his] claims are and the grounds upon which they rest.” Council on

American-Islamic Relations Action Network, Inc. v. Gaubatz, 793 F. Supp. 2d 311, 326 (D.D.C.

2011). Such fine-tuning “certainly does not provide a basis for denying leave to amend.” Id. at

324. Moreover, “[t]he practice of freely giving leave to amend is particularly appropriate” where

pro se litigants are concerned. Kidd v. Howard Univ. Sch. of Law, No. 06-cv-1853 (RBW), 2007



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WL 1821159, at *2 (D.D.C. June 25, 2007) (citing Wyant v. Crittenden, 113 F.2d 170, 175 (D.C.

Cir. 1940)). “Pro se litigants are afforded more latitude than litigants represented by counsel to

correct defects in . . . pleadings.” Id. (quoting Moore v. USAID, 994 F.2d 874, 876-77 (D.C. Cir.

1993)).

          Defendant’s sole objection to Smalls’ motion for leave to file a second amended

complaint is that the amendment would be futile. ECF No. 30 (“Opp.”) at 1. Amending a

complaint is futile “if the proposed claim would not survive a motion to dismiss.” Williams v.

Lew, 819 F.3d 466, 471 (D.C. Cir. 2016) (internal quotation marks omitted). In other words,

“[f]or practical purposes, review for futility is identical to that for a Rule 12(b)(6) motion to

dismiss.” Johnson, 2015 WL 4396698, at *3 (citing Driscoll v. George Wash. Univ., 42 F. Supp.

3d 52, 57 (D.D.C. 2012)). In support of this argument, Defendant simply incorporates by

reference the arguments in its earlier-filed Rule 12(b)(6) motion to dismiss the first amended

complaint. See Opp. at 1. And in that motion, Defendant’s primary argument was that Smalls’

“current claim before this court, like previous iterations” filed in federal court, was barred by res

judicata because it “stems from the same underlying ‘transaction’” that was already adjudicated:

his “discharge from the Marine Corps in 1980.” Mot. Dismiss at 5; see id. at 3 (citing Smalls v.

United States, 471 F.3d 186, 192 (D.C. Cir. 2006)). Critically, however, Defendant does not

explain why Smalls’ 2016 BCNR decision was not a new final agency action subject to an

independent challenge under the APA.

          It is well established that “‘where an agency has reopened a previously considered issue

anew’ upon application for reconsideration, ‘the reopening doctrine allows an otherwise stale

challenge to proceed.’” Peavy v. United States, 128 F. Supp. 3d 85, 99 (D.D.C. 2015) (quoting

Chenault v. McHugh, 968 F. Supp. 2d 268, 272 (D.D.C. 2013)); see Nat’l Resources Def.



                                                  3
 
Council v. EPA, 571 F.3d 1245, 1265 (D.C. Cir. 2009). “‘[W]hen the agency has clearly stated

or otherwise demonstrated’ that it has reopened the proceeding,” the “resulting agency decision

[will] be considered a new final order subject to judicial review under the usual standards.”

Peavey, 128 F. Supp. 3d at 99-100 (quoting Sendra Corp. v. Magaw, 111 F.3d 162, 167 (D.C.

Cir. 1997)). That the agency ultimately reached the same result is of no moment, because “[a]n

agency may be found to have reopened the case and issued a new and final order ‘even though

the agency merely reaffirms its original decision.’” Id. at 100 (quoting Sendra Corp., 111 F.3d

at 167). Moreover, “if an agency denies a petition for reconsideration alleging ‘new evidence’ or

‘changed circumstances,’ the agency’s denial is reviewable as a final agency action.” Id.

(quoting Sendra Corp., 111 F.3d at 166).

              Here, the 2016 BCNR decision suggests that Smalls’ case was reopened. Although the

decision itself was relatively brief, the Board states that Smalls’ case “was reconsidered . . . by a

three-member panel,” that it considered the “entire record” including “the new medical evidence

. . . provided,” and that “this matter is considered a final action.” 2016 BCNR Dec. To be sure,

it is possible that upon filing a new motion to dismiss, Defendant may be able to show that the

2016 BCNR decision was not a new agency action and is therefore barred by res judicata.1 But

on the record presently before it, the Court cannot find that Smalls’ proposed amendment is

futile.

              As a result, the Court will allow Smalls to file his second amended complaint, which will

become the operative complaint. See Nat’l City Mortg. Co. v. Navarro, 220 F.R.D. 102, 106



                                                            
1
  “Although, as the Court notes, the analyses for futility and a 12(b)(6) motion are essentially
identical, the Court’s determination regarding the former issue does not foreclose the
[Defendant] from filing a motion to dismiss [Smalls’] [s]econd [a]mended [c]omplaint.”
Johnson, 2015 WL 4396698, at *4 n.2.
                                                               4
 
(D.D.C. 2004) (noting while granting leave to amend a complaint that the “amended complaint is

now the operative complaint”). Accordingly, Defendant’s motion to dismiss the first amended

complaint will be denied as moot. See Johnson, 2015 WL 4396698, at *5 (denying as moot the

defendants’ motion to dismiss the original complaint on the basis that the amended complaint

supersedes the original complaint).

III.   Conclusion and Order

       For the foregoing reasons, Smalls’ motion (ECF No. 24) is GRANTED. His second

amended complaint (ECF No. 24-1) shall be deemed filed as of September 25, 2017. Further, in

light of the filing of the second amended complaint, Defendant’s motion to dismiss the first

amended complaint (ECF No. 14) is DENIED AS MOOT. Defendant shall file a response to

the second amended complaint by April 5, 2018.



       SO ORDERED.

                                                        /s/ Timothy J. Kelly
                                                        TIMOTHY J. KELLY
                                                        United States District Judge

Date: March 22, 2018




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