                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


STEVEN D. CAGE,                                      )
                                                     )
              Plaintiff,                             )
                                                     )
                  v.                                 )    Civil Case No. 12-444 (RJL)
                                                     )
JOHN MCHUGH,                                         )
                                                     )
              Defendant.                             )


                                              ~
                              MEMORANUUM OPINION
                               (August $o13) [Dkt. #11]


       Plaintiff, Steven D. Cage, ("plaintiff' or "Cage") brought the instant action on

March 21, 20 12, seeking reversal of the Army Board for Correction of Military Records'

("ABCMR") denial of plaintiffs request to set aside his release from active duty pursuant

to a decision made by the Army Reduction in Force Board for fiscal year 1992 ("RIF

Board"). Upon consideration of the parties' pleadings, relevant law, and the entire

record herein, the Court concludes that plaintiffs claim fails for lack of subject-matter

jurisdiction because it was untimely filed. Accordingly, the Court will GRANT

defendant's Motion to Dismiss under Rule 12(b)(l) of the Federal Rules of Civil

Procedure.




                                              1
                                     BACKGROUND

       Plaintiff graduated from the U.S. Military Academy in 197 8. Appendix to De f.'s

Mot. to Dismiss ("App.") [Dkt. #11-2] A14-15; Compl. [Dkt. #1]       at~   1. He was

appointed Second Lieutenant in the United States Army ("Army") after graduation. !d.

In 1992, plaintiff was discharged from the Army after the RIF Board selected him for

involuntary separation. App. A15. He held the rank of Major at that time. !d.

Following his discharge from the Army, plaintiff was immediately appointed as a Reserve

commissioned officer with the rank of Major. !d. Ultimately, plaintiff was promoted to

the rank of Colonel in 2001 and retired at that rank in 2008 after reaching thirty years of

active and reserve duty. See Compl.    ~   21; App. A99-1 00.

       On February 15, 1994, Plaintiff applied to the ABCMR for correction of his

military records, challenging his involuntary separation by the RIF Board and requesting

reinstatement in the Regular Army. App. A8-12. The ABCMR denied plaintiffs

application, finding no basis for setting aside plaintiffs involuntary separation. App.

A 13-18. Plaintiff was notified of this decision in a letter dated February 8, 1995, which

advised:

       Only if you can present newly discovered relevant evidence that was not
       available for consideration by the Board when it denied your application
       will there be a basis for reconsideration. If a request for reconsideration is
       submitted, the staff of the Board will evaluate the evidence and make that
       determination at the appropriate time. Otherwise, this decision is final.
       The only remaining avenue of appeal, should you desire to pursue it, would
       be in a Federal Court.


                                               2
App. A19.

         A service member who obtains an adverse decision from the ABCMR may apply

for reconsideration of the adverse review board decision, as plaintiff did here. See 32

C.F.R. § 581.3(g)(4). Specifically, between 1995 and 2001, plaintiff filed three

unsuccessful requests for reconsideration of the ABCMR's 1995 denial of his

reinstatement request. 1 In 2004, the ABCMR convened to reconsider plaintiffs "1993

request that he be restored to active duty." App. A54. Plaintiff argued that the RIF

Board's decision should be overturned because it was unlawful and contradictory and

because he successfully appealed several Officer Efficiency Reports ("OERs") that may

have affected the decision. See App. A54-55. The ABCMR reviewed plaintiffs OERs

and concluded that "there is no compelling evidence that would warrant overcoming the

regulatory 6-year limitation imposed on applications for consideration by a special

board." App. A65. The ABCMR also found the RIF Board's decision to be lawful and

internally consistent. See App. A65-66.

         Following the ABCMR's 2004 decision, plaintiff wrote a letter to the Acting

Secretary of the Army ("Secretary"), in July 2004, contending that the decision was

"written by incompetents at best or liars at worst." App. A67. In that letter, plaintiff

asked the Secretary to review his case and reinstate him as a Regular Army officer. See

App. A67-69. The ABCMR assigned a case number to this letter, construing it as a



1   Plaintiff made such requests in (1) January of 1996, see App. A24, (2) November of

                                             3
request for reconsideration. See App. A74, A77. On December 1, 2005, the ABCMR

denied plaintiffs request for reconsideration, concluding that the OERs successfully

appealed by plaintiff "did not have an effect or influence on his selection for reduction in

force separation." App. A85.

       On March 21, 2012, plaintiff filed the instant complaint challenging the ABCMR's

December 2005 decision on reconsideration. Plaintiff styles his claim as a challenge to

agency action under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq.,

and alleges that the ABCMR's 2005 decision was arbitrary, capricious, an abuse of

discretion, not in accordance with law and regulations, and otherwise in violation of the

APA. See Compl. at pp. 10-11.

                               STANDARD OF REVIEW

       Under Rule 12(b)(l), "[i]t is to be presumed that a cause lies outside [the Court's]

limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. ofAm., 511 U.S. 375, 377

( 1994 ). Accordingly, a plaintiff must establish that the Court possesses jurisdiction by a

preponderance ofthe evidence. See Hollingsworth v. Duff, 444 F. Supp. 2d 61, 63

(D.D.C. 2006). The Court must grant plaintiffs all favorable inferences supported by the

facts in the complaint. Mountain States Legal Found. v. Bush, 306 F.3d 1132, 1134

(D.C. Cir. 2002).




1998, see id., and (3) September of2001, see App. A22-46.

                                              4
                                         ANALYSIS

       When a service member seeks judicial review under the AP A of an adverse

decision by his service's administrative review board, the general six-year statute of

limitations for civil actions against the federal government, 28 U.S.C. § 240l(a), applies.

Section 2401(a) provides that "every 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." 28 U.S.C. § 2401(a). Here, plaintiffs cause of action accrued in 1995 when

the ABCMR denied his request for reinstatement. As a service member, he could have

immediately sought review in federal court of this adverse board decision. Put simply,

there is no requirement to exhaust administrative remedies before filing suit. See 32

C.F .R. § 5 81.3(g)(4) (permitting reconsideration of ABCMR decisions within one year of

original decision). Unfortunately, plaintiff did not seek judicial review of the ABCMR's

decision within the six-year limit set by 28 U.S.C. § 2401(a).

       Instead, plaintiff now challenges the ABCMR's December 2005 decision on

reconsideration, which upheld the ACMBR's initial adverse decision. With respect to

the six-year statute of limitations period under 28 U.S.C. § 2401(a), plaintiff contends that

his petition for reconsideration effectively reset the clock. It did not. A service

member's petition for reconsideration does not delay the running of the six-year statute of

limitations period where the petitioner waits more than six years after the ABCMR's

initial decision to file the petition for reconsideration. See Nihiser v. White, 211 F. Supp.



                                               5
2d 125, 129 (D.D.C. 2002). Indeed, if the rule were interpreted otherwise, 28 U.S.C. §

2401(a) would be rendered meaningless because a plaintiff could toll the statute of

limitations indefinitely by filing an endless series of motions for reconsideration. See id.

Here, plaintiffs 2004 petition for reconsideration was filed almost nine years after the

ABCMR's initial adverse decision in 1995. Accordingly, the six-year statute of

limitations period ran from the ABCMR's initial 1995 decision. 2

       Undaunted, plaintiff additionally argues that tolling under the Servicemembers

Civil Relief Act ("SCRA"), 50 App. U.S.C. § 526(a), makes his claim timely.

Unfortunately, it does not. Tolling under the SCRA applies only to periods during which

plaintiff served on full-time, active duty military service. 50 U.S.C. app. §§ 511, 526(a).

Here, plaintiffs active duty service only extended the statute of limitations period from

February 8, 2001 to on or about August 24, 2002. 3 Indeed, plaintiff concedes that the

SCRA does not provide sufficient tolling for the 1995 ABCMR decision to survive a

statute oflimitations.argument. See PI. Opp'n. [Dkt. #14] at 16.

       Thus, because the statute of limitations expired well before plaintiff instituted the

present action in 2012, and"§ 2401(a) is a jurisdictional condition attached to the



2Moreover, the ABCMR did not reopen its 1995 decision at any point, further
undercutting plaintiffs arguments regarding tolling of the statute of limitations period.
3 Plaintiff served 510 days on active duty between February 8, 1995, the day Plaintiff

received the ABCMR's initial adverse decision, and February 8, 2001, the day the six
year statute of limitations would have expired. App. A89-95. Plaintiff served an
additional 52 days on active duty between February 9, 2001 and August 24, 2002. App.
A94-96.

                                              6
government's waiver of sovereign immunity, and as such must be strictly construed," this

Court lacks jurisdiction over plaintiffs claim. Spannaus v. US. Dep 't ofJustice, 824

F .2d 52, 55 (D.C. Cir. 1987).

                                    CONCLUSION

       For all of the foregoing reasons, the defendant's Motion to Dismiss must be

GRNATED pursuant to Rule 12(b)(l) of the Federal Rules of Civil Procedure.




                                                  United States District Judge




                                            7
