                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA

    EDWARD SHINOGEE,                                )
    by his guardian, Thomas Duffy,                  )
                                                    )
           Plaintiff,                               )
                                                    )
           v.                                       )                 Civil Action No. 15-2261 (RBW)
                                                    )
    ERIC K. FANNING,                                )
    Secretary of the Army,                          )
                                                    )
           Defendant.                               )
                                                    )

                                       MEMORANDUM OPINION

          The plaintiff, Edward Shinogee, by his guardian, Thomas Duffy, seeks a declaratory

judgment under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706 (2012), as

relief for his challenge to a 2004 decision by the Army Board for Correction of Military

Records (the “Board”) that returned without action the plaintiff’s request for reconsideration

of his effort to upgrade his military discharge characterization. See Amended Complaint for

Declaratory Relief (“Am. Compl.”) ¶¶ 13, 20–24, 28, 36–39. Currently before the Court is

the Defendant’s Motion to Dismiss (“Def.’s Mot.”) and the Plaintiff’s Motion for Oral

Argument (“Pl.’s Mot. for Conf.”). Upon careful consideration of the parties’ submissions, 1

the Court concludes that it must grant the defendant’s motion to dismiss this action for lack of

subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and deny as

moot the plaintiff’s request for oral argument.


1
  In addition to the filings previously identified, the Court considered the following submissions in reaching its
decision: (1) the defendant’s Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss
(“Def.’s Mem.”); (2) the Plaintiff’s Opposition to Defendant’s Motion to Dismiss (“Pl.’s Opp’n”); (3) the
defendant’s Reply Memorandum in Further Support of Defendant’s Motion to Dismiss (“Def.’s Reply”); and (4) the
Plaintiff’s Notice of Supplemental Authority (“Pl.’s Notice”).
                                    I.     BACKGROUND

       On April 12, 1985, the plaintiff, a Private Second Class member of the United States

Army, Am. Compl. ¶ 1, was “admitted as a psychiatric inpatient after [being] diagnosed with

‘Schizophreniform Disorder’ . . . [and] was prescribed anti-psychotic medication,” id. ¶ 8. Nine

days later, the plaintiff was referred for court-martial for possession and intent to distribute

marijuana. Id. ¶ 10. After the plaintiff “went AWOL[—absent without leave—]from the

Army’s mental hospital from May 9 to 19[,] . . . the AWOL charge was added to the drug

charges.” Id. The Army’s Sanity Board determined that the plaintiff (1) was criminally

accountable for the drug offenses, which had allegedly occurred before the plaintiff was

diagnosed with Schizophreniform Disorder, (2) “was not accountable for the AWOL,” and (3)

“was now competent to stand trial.” Id. ¶ 12. On August 2, 1985, the plaintiff “submitted a

request for an administrative discharge in lieu of trial.” Id. ¶ 13. The Army approved the

plaintiff’s request and discharged him on August 23, 1985, with a service characterization that

his discharge was other than honorable. Id.

       In early 1986, the plaintiff was diagnosed with schizophrenia. Id. ¶ 15. Although he was

awarded disability benefits from the Social Security Administration based on his schizophrenia

diagnosis, id., ¶ 16, the Veterans’ Administration “repeatedly denied [the plaintiff] service-

connection and disability compensation for the schizophrenia, and other disabilities, because of

the disqualifying [other than honorable discharge],” id. ¶ 17. In 2003, however, the Board of

Veterans’ Appeals determined that the plaintiff was eligible for benefits after the Veterans’

Administration amended its regulations regarding “its ‘insanity’ exception entitling dishonorably

discharged veterans to disability compensation benefits.” Id. ¶¶ 25, 27.




                                                  2
        The plaintiff filed an application for reconsideration with the Board in 2003 to upgrade

his discharge characterization and to receive disability benefits based on the Board of Veterans’

Appeals’ decision. Id. ¶ 28. In response, on December 16, 2004, the Board sent the plaintiff a

letter stating that “no further action may be taken on [his] request” because (1) the Board

received the plaintiff’s request more than one year after the Board’s prior action, and (2) the

Board had previously reconsidered the matter. See id.

        In June 2004, the Veterans’ Administration had “adjudicated that [the plaintiff] was

incompetent to handle his financial and personal affairs,” id. ¶ 29, and from 2004 through 2012,

the plaintiff experienced a cycle of homelessness, drug addiction, criminal activity, and

hospitalization, id. ¶¶ 29–34; see also Pl.’s Opp’n, Exhibit (“Ex.”) B (Declaration of Thomas

Duffy (“Duffy Declaration”) ¶¶ 2–3. Consequently, the plaintiff was involuntarily “committed

to the Division of Mental Health” because of “a mental illness” by a Utah state court for most of

2011 and through approximately the first half of 2012. See Am. Compl. ¶¶ 33–34; see also Pl.’s

Opp’n, Ex. A (excerpts from the plaintiff’s Veterans’ Administration medical records and mental

health court commitment records (“Plaintiff’s Records”) at 5, 12, 13, 15, 17, 21); id., Ex. B

(Duffy Declaration) ¶ 3. On May 23, 2012, Thomas Duffy, the plaintiff’s brother, was appointed

as the plaintiff’s conservator and guardian. Def.’s Reply, Appendix (“App.”) at A32–33; Pl.’s

Opp’n, Ex. B (Duffy Declaration) ¶ 1. 2 The plaintiff’s brother, on the plaintiff’s behalf, then

filed a complaint in this Court on December 29, 2015, see Complaint at 1, and filed an Amended

Complaint on the plaintiff’s behalf on April 14, 2016, see Am. Compl. at 1.




2
 In his declaration, Duffy states that he became the plaintiff’s guardian and conservator “[i]n early 2013,” Pl.’s
Opp’n, Ex. B (Duffy Declaration) ¶ 4, but the Utah state court orders appointing Duffy as guardian and conservator
are dated May 23, 2012, see Def.’s Reply, App. at A32–33.

                                                         3
                                II.     STANDARD OF REVIEW

       Federal district courts are courts of limited jurisdiction, Kokkonen v. Guardian Life Ins.

Co., 511 U.S. 375, 377 (1994), and “[a] motion for dismissal under [Federal Rule of Civil

Procedure] 12(b)(1) ‘presents a threshold challenge to the court’s jurisdiction,’” Morrow v.

United States, 723 F. Supp. 2d 71, 75 (D.D.C. 2010) (Walton, J.) (quoting Haase v. Sessions,

835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, a district court is obligated to dismiss a claim if it

“lack[s] . . . subject matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). Because “it is presumed that a

cause lies outside [a federal court’s] limited jurisdiction,” Morrow, 723 F. Supp. 2d at 76

(alteration in original) (quoting Kokkonen, 511 U.S. at 377), the plaintiff bears the burden of

establishing by a preponderance of the evidence that a district court has subject matter

jurisdiction, see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

       In deciding a motion to dismiss for lack of subject matter jurisdiction, the district court

“need not limit itself to the allegations of the complaint.” Grand Lodge of the Fraternal Order of

Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001). Rather, “a court may consider such

materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has

jurisdiction [over] the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22

(D.D.C. 2000); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.

2005). Additionally, a district court must “assume the truth of all material factual allegations in

the complaint and ‘construe the complaint liberally, granting [the] plaintiff the benefit of all

inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d

1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)).

However, “‘the [p]laintiff’s factual allegations in the complaint . . . will bear closer scrutiny in

resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion’ for failure to state a claim.”



                                                   4
Grand Lodge, 185 F. Supp. 2d at 13–14 (quoting Charles A. Wright & Arthur R. Miller, Federal

Practice and Procedure § 1350 (3d ed. 1998)).

                                        III.    ANALYSIS

       28 U.S.C. § 2401(a) provides, in relevant part, that a “civil action commenced against the

United States shall be barred unless the complaint is filed within six years after the right of

action first accrues.” However, the statute states that “[t]he action of any person under legal

disability . . . at the time the claim accrues may be commenced within three years after the

disability ceases.” Id. Section 2401(a) applies to an APA claim, which “‘first accrues,’ within

the meaning of § 2401(a), as soon as (but not before) the person challenging the agency action

can institute and maintain a suit in court.” Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52, 56

(D.C. Cir. 1987) (quoting 28 U.S.C. § 2401(a)). In Spannaus, the District of Columbia Circuit

noted that, “[u]nlike an ordinary statute of limitations, § 2401(a) is a jurisdictional condition

attached to the government’s waiver of sovereign immunity, and as such must be strictly

construed.” Id. at 55; see also P & V Enters. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021,

1026 (D.C. Cir. 2008) (affirming Spannaus). As a result, § 2401(a) is “not subject to waiver or

equitable tolling.” Appalachian Voices v. McCarthy, 989 F. Supp. 2d 30, 42 (D.D.C. 2013)

(Walton, J.) (quoting John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 140 (2008)

(Stevens, J., dissenting)).

       Section 2401(a) “originated in the Tucker Act,” Howard v. Pritzker, 775 F.3d 430, 436

(D.C. Cir. 2015), which contains a nearly identical provision regarding legal disability, see 28

U.S.C. § 2501 (“A petition on the claim of a person under legal disability . . . at the time the

claim accrues may be filed within three years after the disability ceases.”); see also Havens v.

Mabus, 759 F.3d 91, 96 (D.C. Cir. 2014) (noting that 28 U.S.C. § 2501 is “the Tucker Act’s



                                                  5
jurisdictional, six-year statute of limitations”). Like § 2401(a), § 2501 is a “jurisdictional,”

“more absolute, kind of limitations period.” John R. Sand & Gravel Co., 552 U.S. at 134.

         The defendant argues that the plaintiff’s amended complaint should be dismissed because

it is time-barred under § 2401(a). See Def.’s Mem. at 1; Def.’s Reply at 1. The parties agree

that the plaintiff’s claim accrued on December 16, 2004, when the Board denied his request for

reconsideration, and thus the six-year statute of limitations expired, unless properly tolled for

some reason, on December 16, 2010. See Pl.’s Opp’n at 4; Def.’s Mem. at 6. The plaintiff

argues that he “was under a continuing legal disability” “from mid-2010 to early 2013,” and thus

his action was timely filed pursuant to § 2401(a)’s legal disability provision because it was filed

“within three years in 2015.” Pl.’s Opp’n at 4. The defendant argues in response that the

plaintiff has not demonstrated a continuous legal disability from December 2004, when his cause

of action accrued, until December 2012, three years before he filed his Complaint, as required by

§ 2401(a), see Def.’s Mem. at 7–9; Def.’s Reply at 2–5. 3

         The legal disability provision of the Tucker Act has been extensively interpreted by the

United States Court of Federal Claims (“Court of Federal Claims”) and its predecessor courts,

the United States Claims Court and the United States Court of Claims, while there is a dearth of

case law interpreting the nearly identical legal disability provision of § 2401. Accordingly, the

Court considers the Tucker Act legal disability case law instructive in its analysis here.

         The Court of Federal Claims has concluded that “[l]egal disability is ‘a condition of

mental derangement which renders the sufferer incapable of caring for his property, of




3
  The defendant also argues that even if the plaintiff established a continuous legal disability dating from December
2004, that disability was cured in May 2012, when Duffy was appointed as his guardian, and thus the statute of
limitations expired three years later in May 2015. See Def.’s Reply at 5–7. The Court need not consider this
argument because, as discussed infra, it concludes that the defendant did not establish a continuous legal disability
from the time his cause of action accrued until within three years of when his complaint was filed.

                                                          6
transacting business, of understanding the nature and effects of his [or her] acts, and of

comprehending his [or her] legal rights and liabilities.’” Tansil v. United States, 113 Fed. Cl.

256, 264 (2013) (quoting Goewey v. United States, 612 F.2d 539, 544 (Ct. Cl. 1979)).

Specifically, that Court has held that the legal disability “must impair the claimant’s access to

the court . . . [and] must have prevented the [claimant] from comprehending his or her legal

rights” in order to toll the statute of limitations period. Hyde v. United States, 85 Fed. Cl. 354,

358 (2008). The claimant carries the burden of overcoming the presumption of “sanity and

competency,” Goewey, 612 F.2d at 544, and must present evidence of the existence of the legal

disability, Hyde, 85 Fed. Cl. at 358. Evidence that the claimant sought legal relief in the courts

or from administrative agencies demonstrates lucidity. See Dean v. United States, 92 Fed. Cl.

133, 150 (2010) (declining to find that the plaintiff suffered from a legal disability because the

“plaintiff exercised his legal right to seek relief from the [Air Force Board for Correction of

Military Records] on multiple occasions”); Hyde, 85 Fed. Cl. at 358–59 (finding that the

plaintiff “comprehended his legal rights” because he “repeatedly sought action from the

Government regarding his allegedly lost patents” during the statute of limitations period);

Goewey, 612 F.2d at 545 (concluding that the plaintiff did not suffer from a legal disability

because he filed habeas corpus petitions to be released from a psychiatric hospital, engaged in

efforts to secure benefits from the Veterans’ Administration, and defended himself against

criminal prosecutions).

       Furthermore, the Court of Federal Claims has concluded that to toll the statute of

limitations, the legal disability must exist “at the time when the claim accrued rather than arising

some time thereafter and [the claimant must show] that he suffered from the disability

continually during the period in which the statute is to be tolled.” Tansil, 113 Fed. Cl. at 264



                                                 7
(quoting Ware v. United States, 57 Fed. Cl. 782, 788 (2003)). And in that Court’s view, if the

disabled claimant regains legal capacity by experiencing a period of lucidity, the statute of

limitations recommences and continues to run even if the claimant’s legal disability reemerges.

Id.

         In this case, the plaintiff alleges that he was legally disabled because of mental illness

only “from mid-2010 to early 2013.” Pl.’s Opp’n at 4; see also id. at 9 (“From 2010 to 2013 [the

plaintiff] experienced an acute crisis in mental illness with grave impairments in functionality.”);

id. at 10 (“There is certainly no ‘overwhelming consensus of psychiatric testimony’ that [the

plaintiff] had the mental capability from 2010 until 2013 to make rational decisions or pursue

legal actions to protect his interests.” (quoting Goewey, 612 F.2d at 545)). As a result, the

plaintiff’s legal disability argument fails because this Court agrees with the Court of Federal

Claims that the plaintiff “must show that his disability existed at the time when the claim

accrued.” Tansil, 113 Fed. Cl. at 264 (emphasis added) (quoting Ware, 57 Fed. Cl. at 788); see

also Bennett v. United States, 36 Fed. Cl. 111, 113 (1996) (finding that the claimant failed to

establish a legal disability because his claim accrued in 1988, but the plaintiff only alleged a

disability in 1994). As noted above, the parties agree that the claim accrued on December 16,

2004, when the Board denied the plaintiff’s request for reconsideration. See Pl.’s Opp’n at 4;

Def.’s Mem. at 6. Because the plaintiff does not allege that he was disabled on that date, and

presents proof only that his disability commenced over five years thereafter, the Court concludes

that the plaintiff was not suffering from a continuous legal disability4 from the date his claim


4
  The Court concludes that, even if the plaintiff did allege that he was legally disabled in December 2004, he has
failed to demonstrate that the disability was continuous “during the period in which the statute [wa]s to be tolled.”
Tansil, 113 Fed. Cl. at 264 (quoting Ware, 57 Fed. Cl. at 788). The plaintiff submitted a claim to the Veterans’
Administration in 2006 requesting a competency evaluation so that he could “be [his] own payee,” Def.’s Reply,
App. at A23, which demonstrates that the plaintiff was lucid and comprehended his legal rights during this period,
see Dean, 92 Fed. Cl. at 150; Hyde, 85 Fed. Cl. at 358–59.


                                                           8
accrued through December 2012, three years before the plaintiff filed his Complaint. See 28

U.S.C. § 2401(a) (requiring the claimant to file his action “within three years after the disability

ceases”). Accordingly, the plaintiff’s claim is untimely under 28 U.S.C. § 2401(a). 5

                                            IV.       CONCLUSION

           For the foregoing reasons, the Court concludes that the plaintiff failed to establish that he

suffered from a legal disability that warrants tolling the statute of limitations of 28 U.S.C.

§ 2401(a). Thus, the Court must grant the Defendant’s Motion to Dismiss this action for lack of

subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), and deny as

moot the Plaintiff’s Motion for Oral Argument.

           SO ORDERED this 13th day of January, 2017. 6



                                                                         REGGIE B. WALTON
                                                                         United States District Judge




5
  The plaintiff asserts in his Amended Complaint that equitable tolling should apply, see Am. Compl. ¶ 39, and
reiterates this argument in the Plaintiff’s Notice of Supplemental Authority, which was filed on July 8, 2016, after
the authorized briefing period had concluded, see Pl.’s Not. at 1. The Court declines to consider the plaintiff’s
equitable tolling argument because, even if he had raised this argument in his opposition to the defendant’s motion
to dismiss, which he did not, see Pl.’s Opp’n at 4–10, § 2401(a) is “not subject to waiver or equitable tolling,”
Appalachian Voices, 989 F. Supp. 2d at 42–43 (quoting John R. Sand & Gravel Co., 552 U.S. at 140 (Stevens, J.,
dissenting)); see also In re: Chaplaincy, __ F. Supp. 3d __, __, Case No. 1:07-mc-269 (GK), 2016 WL 541126, at *3
(D.D.C. Feb. 9, 2016) (“[C]ourts in this circuit have continuously held that because [§] 2401(a) is jurisdictional, they
lack the power to toll its limitations period.”).
6
    The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.

                                                           9
