                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA


                                    )
THOMAS G. ADAMSKI,                  )
                                    )
          Plaintiff,                )
                                    )
     v.                             )           Civil Action No. 14-cv-0094 (KBJ)
                                    )
JOHN McHUGH, Secretary of the Army, )
                                    )
                                    )
          Defendant.                )
                                    )


                      MEMORANDUM OPINION AND ORDER

      Plaintiff Thomas Adamski is a former soldier in the United States Army who has

spent decades trying to get the Army to modify his military records. Adamski was an

active duty enlisted soldier from 1970 until 1973, when he was involved in a harrowing

parachute-jumping incident and voluntarily requested early separation from military

service. In 1988, Adamski applied to the Army Board for Correction of Military

Records (“ABCMR” or “the Board”) seeking to have his separation status changed from

“voluntary” to “disability” in order to reflect what Adamski alleges is the real reason

that his military service came to an end: previously undiagnosed post-traumatic stress

disorder (“PTSD”). The Board denied Adamski’s application to correct his records in

1989; and then, nearly two decades later, Adamski requested in writing that the Board

reconsider this denial in light of purportedly new evidence regarding his condition. The

Board allegedly responded to Adamski’s request for reconsideration by refusing to act

on it, citing a regulation promulgated in 2006 that requires all such reconsideration

requests to be submitted to the Board within one year of the initial denial. Adamski has
filed the instant action against the Secretary of the Army (“Defendant” or “the

Secretary”) to challenge the Board’s application of the 2006 regulation to his request

for reconsideration. Adamski alleges that the Board acted “ultra vires”—i.e., in excess

of its statutory authority—when it relied on that regulation to reject his reconsideration

request. (See Am. Compl., ECF No. 22, at 1, 10.) 1

       Before this Court at present is Defendant’s motion to dismiss Adamski’s

amended complaint. (See Def.’s Mot. to Dismiss (“Def.’s Mot.”), ECF No. 23, at 1.)

Defendant argues that the six-year statute of limitations for actions against the federal

government set forth in 28 U.S.C. § 2401(a) bars Adamski’s claim against the

Secretary, and that, in any event, Adamski has failed to plead adequately the elements

of an ultra vires claim. (See id.) As explained fully below, this Court finds that the

statutory limitations period does not bar Adamski’s challenge, and thus that the Court

has subject matter jurisdiction over the amended complaint. However, it appears that

the doctrine of prudential exhaustion (which is not a pleading requirement in this

context) may apply under the circumstances presented here. Thus, Adamski may have

needed to exhaust available administrative remedies prior to seeking relief in federal

court, but the amended complaint is silent regarding whether or not Adamski actually

challenged the Board’s application of the one-year regulation to him under the

administrative process. Consequently, this Court concludes that additional submissions

are required to resolve the exhaustion issue, as explained below. Accordingly, the

Secretary’s motion to dismiss will be DENIED, and the Court will order the parties to

engage in a period of limited discovery on the issue of administrative exhaustion.


1
 Page numbers throughout this memorandum opinion and order refer to those that the Court’s
electronic filing system assigns.


                                                 2
I.     BACKGROUND

       A.     Facts

       The facts that are related in this memorandum opinion and order appear in

Adamski’s amended complaint and are largely undisputed.

              1.      Adamski’s Military Service, Separation, And Subsequent Health
                      Problems

       Adamski enlisted in the Army in 1970 and was trained as a paratrooper. (See

Am. Compl. ¶¶ 1, 2.) During a training jump in November of 1972, Adamski had a

“near-death” experience—his primary chute failed to open and his auxiliary chute did

not open until the very last moment. (Id. ¶ 2.) Shortly after this distressing training-

jump incident, Adamski allegedly developed eye twitches and nervous tics. (See id.)

Moreover, he began to receive negative performance reports with respect to his work,

and he was eventually terminated from jump status. (See id.) A few months later, in

March of 1973, Adamski requested early separation from the Army. (See id. ¶ 3.)

Adamski alleges that, at the time of his separation request, he “omitted reporting” any

physical, mental, or emotional health concerns as a reason for ending his military

service; instead, the justification he provided for requesting early separation was that he

needed to return home to help with his family’s farm work. (Id.) According to the

amended complaint, the Army granted Adamski’s request and released him from

military service in June of 1973. (See id.)

       The amended complaint alleges that, as a direct result of the training-jump

incident, Adamski has suffered from debilitating PTSD and has had to undergo long

stretches of hospitalization and medical treatment. (See, e.g., id. ¶¶ 6, 12.) The

amended complaint also explains that PTSD was not listed in the Diagnostic and



                                              3
Statistical Manual of Mental Disorders (“DSM”) until 1980, and that the Veterans

Administration (“VA”) did not formally recognize PTSD as a medical condition until

1982. (See id. ¶ 4.) Furthermore, the doctors at the VA who were treating Adamski for

chronic emotional and mental health problems did not diagnose him with PTSD until

1986. (See id. ¶ 6.)

      In light of his PTSD diagnosis, the Social Security Administration allegedly

granted Adamski “total disability” status in 1990, retroactive to 1986. (Id. ¶ 9.)

Adamski also alleges that, in 2004, the VA formally recognized that his PTSD is

“service-connected”—i.e., that it stems from the 1972 training-jump incident—and that,

as a result of this medical condition, Adamski is effectively unemployable. (Id. ¶ 11.)

According to the amended complaint, the VA’s 2004 recognition reversed an earlier VA

determination (made in 1987) in which the agency initially declined to characterize

Adamski’s condition as PTSD, relying on an older, more limited DSM definition. (See

id. ¶ 7.) Adamski asserts that, with its 2004 decision, the VA finally acknowledged that

he has received “continuous treatment for what amount[s] to” PTSD since he left the

Army in the early 1970s. (Id. ¶ 11 (internal quotation marks omitted).)

             2.        Proceedings Before The ABCMR

      Although both the Social Security Administration and the VA purportedly have

recognized that Adamski suffers from service-related PTSD stemming from the 1972

parachute debacle, Adamski has thus far been unsuccessful in his attempts to have the

Army change his military records to reflect his contention that he sought discharge due

to PTSD.




                                            4
                     a.     Adamski’s Initial Application In 1988

       Adamski asserts that he first applied to the ABCMR in 1988 seeking to change

his military separation status from “voluntary” to “disability” or “retirement.” (See id.

¶ 8.) The amended complaint states that, “[d]ue to his deteriorating mental

condition[,]” Adamski submitted relatively few records to the Board in support of this

initial application for records correction. (Id.) Adamski alleges that the Board denied

his application in 1989, finding that the statutory clock for Adamski’s application had

started to run in 1973, and that it would not be in the interest of justice to waive the

general three-year statutory time limit in Adamski’s case. (See id.) In so concluding,

Adamski claims that the Board relied in part on the VA’s 1987 decision that declined to

characterize Adamski’s health problems as service-related PTSD. (See id.) In addition,

Adamski maintains that the Board indicated in its 1989 denial that—in accordance with

then-current Army regulations—the Board would be willing to reconsider Adamski’s

application if he could present “newly discovered relevant evidence not previously

considered by the Board.” (Id. ¶ 17 (citing A. Reg. 15-185, ¶ 22 (1977)).)

                     b.     Adamski’s Request For Reconsideration In 2010

       Adamski alleges that, in 2010, he filed a request for reconsideration of the

Board’s denial of his records correction application, and that he attached various “Army

health and personnel records” as supporting evidence, including the VA’s 2004 decision

recognizing his service-connected PTSD and the Social Security Administration’s 1990

decision granting him disability status. (Id. ¶ 13.) According to Adamski, in 2011, the

Board sent him a letter in which it stated that it was refusing to consider his request

based on a regulation enacted in 2006 that requires all requests for reconsideration to be




                                             5
filed within one year of the Board’s initial decision. (Id. ¶ 16; see also id. ¶ 18 (citing

A. Reg. 15-185, ¶ 2-15b (2006)).)

       B.     Procedural History

       Adamski initiated the instant civil action on January 23, 2014 (see Compl., ECF

No. 1), and filed his amended complaint with leave of Court on November 19, 2014 (see

Minute Order dated Nov. 19, 2014). The amended complaint contains a single count

alleging that the Board’s “particular application of” the 2006 regulation to Adamski’s

request for reconsideration “was ultra vires agency action exceeding the limits of [the

Board’s] authority under 10 U.[S.C.] § 1552(a)(1)[.]” (Am. Compl. at 10.) Adamski

seeks an order from this Court remanding his case to the Board and instructing the

Board to process and consider his request for reconsideration. (See id. at 10–11.)

       Defendant filed the instant motion to dismiss on December 5, 2014. (See Def.’s

Mot.) Defendant argues, first, that this Court lacks subject matter jurisdiction and must

dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(1) because

Adamski’s claim is untimely under the jurisdictional six-year statute of limitations for

actions against the federal government that is found in 28 U.S.C. § 2401(a). (See Def.’s

Mem. in Supp. of Def.’s Mot. (“Def.’s Br.”), ECF No. 23, at 8–11; see also Mot. Hr’g

Tr., May 26, 2015, at 13:11–14:9.) Defendant further argues that the amended

complaint fails adequately to allege an ultra vires claim for relief—and is thus subject

to dismissal under Federal Rule of Civil Procedure 12(b)(6)—because, according to

Defendant, Adamski has failed to point to any specific, mandatory statutory duty that

the Board purportedly violated. (See Def.’s Br. at 11–19.) Adamski responds that his

challenge is timely under 28 U.S.C. § 2401(a), and therefore within this Court’s subject

matter jurisdiction, because Adamski initiated the instant action within six years of


                                             6
2011, which is when the Board applied the 2006 regulation to his request for

reconsideration. (See Pl.’s Opp’n to Def.’s Mot., ECF No. 26, at 20–21.) Moreover,

Adamski maintains that the Board has an affirmative obligation under 10 U.S.C. § 1552

to correct injustices in military records, and that it ignored that statutory obligation in

the instant case. (See, e.g., id. at 24 (citing Mullen v. United States, 17 Cl. Ct. 578, 581

(1989); see also Pl.’s Notice of Suppl. Auth., ECF No. 32 (attaching as Exhibit “A”

Haselwander v. McHugh, 774 F.3d 990 (D.C. Cir. 2014)).)

       This Court held a hearing on Defendant’s motion to dismiss on May 26, 2015,

and took the matter under advisement.

II.    APPLICABLE LEGAL STANDARDS

       Defendant has challenged Adamski’s amended complaint both for lack of subject

matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to

state a claim upon which relief can be granted under Rule 12(b)(6). (See Def.’s Mot. at

1.) A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction requires

the court to assess its own power to entertain the action, and in order to withstand a

Rule 12(b)(1) motion, “the plaintiff bears the burden of establishing [the court’s]

jurisdiction by a preponderance of the evidence.” Moran v. U.S. Capitol Police Bd.,

820 F. Supp. 2d 48, 53 (D.D.C. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S.

555, 561 (1992)). In reviewing such a motion, the court considers the allegations in the

complaint, and it may also “consider such materials outside the pleadings as it deems

appropriate to resolve the question whether it has jurisdiction to hear the case.”

Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000). The

court must accept the complaint’s factual allegations as true, see Jerome Stevens

Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005); however, “[b]ecause Rule


                                              7
12(b)(1) concerns a court’s ability to hear a particular claim, the court must scrutinize

the plaintiff’s allegations more closely when considering a motion to dismiss pursuant

to Rule 12(b)(1) than it would under . . . Rule 12(b)(6)[,]” Schmidt v. U.S. Capitol

Police Bd., 826 F. Supp. 2d 59, 65 (D.D.C. 2011) (citations omitted).

       A Rule 12(b)(6) motion tests the legal sufficiency of a complaint. See Howard

Univ. v. Watkins, 857 F. Supp. 2d 67, 71 (D.D.C. 2012). As a result, courts reviewing a

motion to dismiss under Rule 12(b)(6) must accept as true all factual allegations in the

complaint, and must also “grant plaintiff the benefit of all inferences that can be

derived from the facts alleged[.]” Sparrow v. United Air Lines, Inc., 216 F.3d 1111,

1113 (D.C. Cir. 2000) (internal quotation marks and citation omitted); see also Busby v.

Capital One, N.A., 932 F. Supp. 2d 114, 134 (D.D.C. 2013). In order to survive such a

motion, the complaint must contain sufficient factual allegations to “state a claim to

relief that is plausible on its face[,]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007), meaning that the complaint’s “factual content . . . [must] allow[] the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged[,]”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “However, the court need not accept

inferences . . . [that] are unsupported by the facts set out in the complaint. Nor must the

court accept legal conclusions cast in the form of factual allegations.” Kowal v. MCI

Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

III.   ANALYSIS

       As noted, Defendant maintains that the instant lawsuit is untimely in light of the

six-year statute of limitations set forth in 28 U.S.C. § 2401(a), and that, as a result, this

Court lacks subject matter jurisdiction to consider Adamski’s amended complaint. (See

Def.’s Br. at 8–11.) Defendant also contends that the factual allegations in Adamski’s


                                              8
amended complaint do not satisfy the elements of an ultra vires claim, and thus, that

Adamski is not entitled to relief as a matter of law. (See id. at 13–21.) For the reasons

explained below, this Court concludes that the statute of limitations poses no bar to the

Court’s consideration of Adamski’s ultra vires claim, but that the doctrine of prudential

exhaustion—which requires a plaintiff to exhaust all available administrative remedies

before bringing an action in federal court—might very well prevent the Court from

entertaining the instant amended complaint. Thus, the Court will deny the pending

motion to dismiss, and will require a period of limited discovery to resolve the

threshold exhaustion issue.

       A.     The Statute Of Limitations In 28 U.S.C. § 2401(a) Does Not Bar
              Adamski’s Claim

       Section 2401(a) of Title 28 of the United States Code states 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). The D.C.

Circuit has long recognized that “[u]nlike an ordinary statute of limitations, § 2401(a)

is a jurisdictional condition attached to the government’s waiver of sovereign

immunity,” Spannaus v. DOJ, 824 F.2d 52, 55 (D.C. Cir. 1987), and also that, in the

administrative context, a cause of action “‘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[,]” id. at 56.

       Here, Adamski has alleged that “in 2011[,] . . . [t]he [A]BCMR applied its new

2006 one-year reconsideration rule” to Adamski’s request for reconsideration (Am.

Compl. ¶ 16), and that, in so doing, the Board acted ultra vires and in excess of its

congressionally conferred statutory authority. (See id. at 1, 10; see also Mot. Hr’g Tr.



                                               9
at 3:21–22 (Plaintiff’s counsel clarifying that the amended complaint challenges only

the Board’s 2011 application of its 2006 regulation and not the Board’s underlying 1989

decision).) Thus, when the allegations of the amended complaint are considered in the

light most favorable to Adamski, the relevant agency action for claim accrual purposes

took place in 2011, when the Board allegedly applied the one-year regulation to

Adamski and returned his request for reconsideration without action. (See Am. Compl.

¶ 16; see also Letter from Klaus P. Schumann, Army Review Bds. Agency Case Mgmt.

Div., to Thomas G. Adamski (Jan. 10, 2011), Ex. 2 to Def.’s Br., ECF No. 23-1, at 5

(returning Adamski’s “request for reconsideration . . . without further action” because

the request “was not received within one year of the ABCMR’s original decision” in

accordance with “[p]aragraph 2-15b” of “Army Regulation 15-185”).) And given that

Adamski filed the instant lawsuit in 2014—only three years after the challenged agency

action—it is clear that Adamski’s claim against the Secretary is timely for purposes of

28 U.S.C. § 2401(a).

       Defendant’s argument to the contrary has no support in fact or law. First of all,

Defendant is manifestly incorrect to insist that Adamski’s efforts “to focus attention on

. . . 2011” were merely an “attempt to obscure” the fact that the relevant agency action

for claim accrual purposes actually “occurred in 1989[.]” (Def.’s Br. at 8–9.) As

explained above—and as was verified at this Court’s hearing on the motion to

dismiss—Adamski’s complaint challenges the Board’s allegedly unjustified refusal in

2011 to process the request for reconsideration that Adamski had filed the previous

year, and not the Board’s initial decision in 1989 to let his record stand without




                                            10
amendment. 2 Furthermore, the cases that Defendant’s brief cites to support the

proposition that requests for reconsideration do not extend the statute of limitations (see

id. at 17 n.10) are inapposite because the claim at issue here relates to the independent

legal error that the agency allegedly made in 2011, when it applied the intervening 2006

regulation to Adamski’s request for reconsideration, and it is by no means an attempt to

extend any claim that Adamski may have had with respect to the Board’s 1989 denial.

          Defendant’s fallback position—that “what [the amended complaint is] actually

doing is challenging the 2006 regulation itself” and thus the six-year statutory deadline

expired in 2012 (Mot. Hr’g Tr. at 11:20–21, 13:20–14:9)—is also unavailing, because

even if Adamski was seeking to challenge the regulation itself, it is clear that the six-

year statute of limitations would not bar such a challenge in the context of this lawsuit.

Under the established case law of this Circuit, a statutory limitations period “does not

foreclose subsequent examination of a rule where properly brought before [a] court for

review of further [agency] action applying it.” Functional Music, Inc. v. FCC, 274 F.2d

543, 546 (D.C. Cir. 1958) (emphasis added). This is because “administrative rules and

regulations are capable of continuing application[,]” and because “limiting the right of

review of the underlying rule would effectively deny many parties ultimately affected

by a rule an opportunity to question its validity.” Id. Thus, courts in this jurisdiction



2
    Defendant actually conceded as much during argument at the motion hearing in this case:

            THE COURT: . . . [Y]our first argument is that the 1989 denial is really
            the basis, right, for [Adamski’s] claim?

            MR. GRACE: No, Your Honor. Not—I know that that’s somewhat of
            what’s briefed. . . . I think there was a little confusion as to . . . what
            exactly the claim . . . was. So no. The defense is not arguing that[.]

(Mot. Hr’g Tr. 14:11–21.)


                                                       11
“permit[] both constitutional and statutory challenges to an agency’s application . . . of

a previously promulgated rule, even if the period for review of the initial rulemaking

has expired.” Alvin Lou Media, Inc. v. FCC, 571 F.3d 1, 8 (D.C. Cir. 2009) (internal

quotation marks and citation omitted); see also NLRB Union v. Fed. Labor Relations

Auth., 834 F.2d 191, 195–97 (D.C. Cir. 1987) (explaining the various ways in which

“[a]n agency’s regulations may be attacked . . . once the statutory limitations period has

expired”). Consequently, this Court finds that, regardless of whether Adamski “could

have sought immediate review” of the 2006 regulation at the time it was promulgated,

the six-year state of limitations would not prevent him from launching a substantive

legal attack on the rule’s validity, given the Board’s application of the regulation to

Adamski’s reconsideration request in 2011. See Alvin Lou Media, Inc., 571 F.3d at 8;

see also Wind River Mining Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991)

(“If . . . a challenger contests the substance of an agency decision as exceeding

constitutional or statutory authority, the challenger may do so later than six years

following the decision by filing a complaint for review of the adverse application of the

decision to the particular challenger.”).

       The bottom line is this: a lawsuit filed in 2014 that challenges agency conduct

that occurred in 2011 falls well within the six-year statute of limitations period, and

Defendant’s contention that 28 U.S.C. § 2401(a) bars Adamski’s claim is meritless.

Therefore, this Court concludes that it has subject matter jurisdiction over Adamski’s

amended complaint.




                                            12
       B.     Adamski’s Ultra Vires Claim May Be Subject To Prudential
              Exhaustion Requirements But The Exhaustion Issue Cannot Be
              Determined At This Time

       Turning to the Defendant’s assertion that Adamski’s amended complaint

nevertheless fails to state a claim upon which relief can be granted (see Def.’s Br. at

11–13; see also Am. Compl. at 10), the Court begins by reviewing the legal landscape

regarding a claim that an agency has acted “ultra vires”—a review that leads the Court

to conclude that administrative exhaustion is likely a prerequisite to maintaining the

instant action, and that consideration of the exhaustion question is necessary here.

              1.     Ultra Vires Claims In The Administrative Context

       Literally translated, the Latin phrase “ultra vires” means “beyond the powers

(of),” and as a legal term, the phrase means “[u]nauthorized” or “beyond the scope of

power allowed or granted . . . by law[.]” Black’s Law Dictionary 1755 (10th ed. 2014).

In the administrative law context, ultra vires claims come in both a statutory and a non-

statutory variety; indeed, the phrase “ultra vires” is often used to describe certain

claims that have been brought under provisions of the APA. Specifically, when a

plaintiff contends that a particular agency action is “not in accordance with law” under

5 U.S.C. § 706(2)(A) or “in excess of statutory jurisdiction, authority, or limitations, or

short of statutory right” under 5 U.S.C. § 706(2)(C), courts sometimes characterize

these statutorily-based assertions as “ultra vires” claims. See, e.g., Tex. Alliance for

Home Care Servs. v. Sebelius, 681 F.3d 402, 408 (D.C. Cir. 2012) (describing

plaintiffs’ claim under 5 U.S.C. § 706(2) as an argument that certain agency action

“should be set aside under the APA as ultra vires”); see also Iowa League of Cities v.

EPA, 711 F.3d 844, 876 (8th Cir. 2013) (explaining that “the APA authorizes courts to

strike down as ultra vires agency rules promulgated without valid statutory authority”);


                                            13
Nw. Envtl. Advocates v. EPA, 537 F.3d 1006, 1014 (9th Cir. 2008) (referring to

plaintiff’s claims under APA sections 706(2)(A) and (C) as “ultra vires argument[s]”).

       There is also an ultra vires claim that can be brought in federal court “[i]f a

plaintiff is unable to bring his case predicated on either a specific or a general statutory

review provision[.]” Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322, 1327 (D.C.

Cir. 1996); see, e.g., Dart v. United States, 848 F.2d 217, 224 (D.C. Cir. 1988) (holding

that section 701(a)(1) of the APA, which prohibits judicial review to the extent that

other statutes preclude it, “serves only to take away . . . the APA’s own guarantee of

judicial review” and “does not repeal” the availability of non-statutory review of ultra

vires actions); see also Aid Ass’n for Lutherans v. USPS, 321 F.3d 1166, 1172–73 (D.C.

Cir. 2003) (citing Dart, 848 F.2d at 221, 224); Tex. Alliance for Home Care Servs. v.

Sebelius, 811 F. Supp. 2d 76, 94 (D.D.C. 2011) (citing Dart, 848 F.2d at 224). This

type of ultra vires claim derives from the contention that the agency has acted without

the authority to do so, and it is based on the inherent power of the federal courts “to

reestablish the limits on [executive] authority” through judicial review. Dart, 848 F.2d

at 224; see also Aid Ass’n for Lutherans, 321 F.3d at 1173 (quoting id.).

       These different uses of the term “ultra vires” have given rise to considerable

confusion regarding the intended legal claim in the instant case. At oral argument,

Adamski insisted that the amended complaint contains only a non-statutory, non-APA

ultra vires claim (see, e.g., Mot. Hr’g Tr. at 8:3 (Plaintiff’s counsel stating that he

amended the original complaint to “remove[] the APA claim”)), while defense counsel

stated that he had been under the impression that Adamski was proceeding under the

APA and that Defendant’s motion to dismiss had been briefed accordingly (see id. at




                                             14
9:17–10:6, 14:17–20). To be sure, if the ultra vires claim that exists in the amended

complaint is statutory, then there is a colorable argument that Adamski’s amended

complaint needs to contain allegations that satisfy all of the requirements for APA

claims in order to survive Defendant’s Rule 12(b)(6) motion to dismiss. Cf. Oryszak v.

Sullivan, 576 F.3d 522, 526 (D.C. Cir. 2009) (affirming dismissal of APA claim under

Rule 12(b)(6) where challenged agency action was committed to agency discretion by

law); Hormel Foods Corp. v. USDA, 808 F. Supp. 2d 234, 246–47 (D.D.C. 2011)

(granting Rule 12(b)(6) motion to dismiss APA claim where plaintiff “failed to allege

facts that demonstrate . . . final agency action”); see also Marine Mammal Conservancy,

Inc. v. Dep’t of Agric., 134 F.3d 409, 411 (D.C. Cir. 1998) (discussing exhaustion

requirements for APA claims). However, even assuming (as this Court must) that

Adamski’s claim is non-statutory—and thus not subject to the particular strictures that

govern APA claims including, inter alia, administrative exhaustion requirements—this

Court finds, as a threshold matter, that the judicial doctrine of prudential exhaustion

may nonetheless require Adamski to have exhausted all available administrative

remedies prior to seeking relief in federal court.

              2.     Prudential Administrative Exhaustion Principles May Apply Here

       It “is well established in the jurisprudence of administrative law[,]” McKart v.

United States, 395 U.S. 185, 193 (1969), that parties must “exhaust administrative

remedies before seeking relief from federal courts, either as a matter of congressional

command or to protect the authority of the agency and to promote judicial efficiency,”

Hettinga v. United States, 560 F.3d 498, 502–03 (D.C. Cir. 2009) (citing McCarthy v.

Madigan, 503 U.S. 140, 144–45 (1992)); see also McCarthy, 503 U.S. at 144 (“Where

Congress specifically mandates, exhaustion is required. But where Congress has not


                                            15
clearly required exhaustion, sound judicial discretion governs.” (citations omitted)).

Put another way, “[t]he word ‘exhaustion’ . . . describes two distinct legal concepts”—

exhaustion required by statute, which is jurisdictional, and judicially required

(“prudential”) exhaustion, which is non-jurisdictional. Avocados Plus Inc. v. Veneman,

370 F.3d 1243, 1247 (D.C. Cir. 2004). The D.C. Circuit has made clear that, as far as

prudential exhaustion is concerned, courts must require plaintiffs to exhaust available

administrative remedies if so doing would further the underlying purposes of

exhaustion. See Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). These purposes

include: (1) “giving agencies the opportunity to correct their own errors,” (2) “affording

parties and courts the benefits of agencies’ expertise,” and (3) “compiling a record

adequate for judicial review[.]” Avocados Plus Inc., 370 F.3d at 1247 (alteration in

original) (internal quotation marks and citation omitted). Notably, however, courts may

also excuse the otherwise applicable exhaustion requirement “if delaying judicial

review would cause irreparable injury, if the agency is not competent to address the

issue or to grant effective relief, or if further pursuit of an administrative remedy would

be futile.” Ass’n of Flight Attendants-CWA v. Chao, 493 F.3d 155, 159 (D.C. Cir.

2007).

         This Court believes that Adamski’s claim that the Board acted outside of its

authority when it applied the 2006 regulation to Adamski’s reconsideration request may

be subject to prudential exhaustion requirements, and based on the information

presented to the Court thus far, there does not appear to be any basis for excusing that

requirement. In this Court’s preliminary view, requiring Adamski to bring to the Board

or the Secretary his argument that the ABCMR acted outside of its authority when it




                                             16
applied the 2006 regulation’s one-year time limit to his 2010 reconsideration request

seems likely to serve the underlying purposes of administrative exhaustion because,

first, it would ensure that the agency has an opportunity to apply its own expertise

regarding the application of that regulation in this context in order to correct (or

confirm) its decision to apply the regulation to Adamski’s situation, and second, the

agency’s consideration of the extent of its authority under the circumstances presented

here would inform the parties and the Court, enhancing the record for purposes of

judicial review. This Court is also not currently aware of any circumstances that would

give rise to a conclusion that the delay resulting from imposing prudential exhaustion

requirements here would lead to irreparable injury, nor does it appear that exhaustion

would be a futile effort, in light of recent guidance that the Secretary of Defense has

given military corrections boards regarding motions for reconsideration with respect to

previously unrecognized claims of PTSD. 3 Thus, at present, this Court sees little risk,

and potentially substantial benefit, in requiring Adamski to exhaust all administrative

remedies here. See, e.g., Avocados Plus Inc., 370 F.3d at 1251 (explaining that

determining whether to require prudential exhaustion in a given case involves

“‘balanc[ing] the interest of the individual in retaining prompt access to a federal

judicial forum against the countervailing institutional interests favoring exhaustion’”


3
  It appears that, since Adamski filed the instant action, the Secretary of Defense has issued
supplemental policy guidance to all military correction boards—including the ABCMR—advising them
“to ease the application process for veterans who are seeking” to “upgrad[e] their discharges based on
claims of previously unrecognized Post Traumatic Stress Disorder (PTSD).” Memorandum, Secretary
of Defense Chuck Hagel, Supplemental Guidance to Military Boards for Correction of Military/Naval
Records Considering Discharge Upgrade Requests By Veterans Claiming PTSD (Sept. 3, 2014),
http://www.defense.gov/news/OSD009883-14.pdf, at 1. Significantly for present purposes, this
supplemental guidance specifically states that “[t]ime limits to reconsider decisions will be liberally
waived for applications covered by this guidance[,]” id. at A2, which suggests that petitioning the
Secretary of the Army and/or the Board to waive the 2006 regulation’s one-year time limit in the
instant case may be far from futile, and in fact, might result in precisely the relief Adamski seeks.


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(alteration in original) (quoting McCarthy, 503 U.S. at 147)); see also Ass’n of Flight

Attendants-CWA, 493 F.3d at 158–59 (requiring plaintiff to exhaust administrative

remedies where plaintiff union could “petition the agencies directly for the relief they

seek in this lawsuit”).

       Nevertheless, Defendant has not raised the exhaustion issue with respect to

Adamski’s claim, and this Court is mindful of the fact that failure to exhaust

administrative remedies functions as an affirmative defense and not a pleading

requirement in this context. See Moore v. District of Columbia, 445 F. App’x 365, 366

(D.C. Cir. 2011). Moreover, it is not clear on the current record whether there are

administrative procedures for the review of summary rejections of requests for

reconsideration by the Board (such as the one at issue here), and the parties have not

had an opportunity to address the administrative exhaustion issue. Out of an abundance

of caution, then, this Court will order the parties to proceed to discovery solely on the

exhaustion question, and may ultimately require supplemental briefing on this issue.

Cf., e.g., Order, Davis v. Architect of the Capitol, No. 12-cv-0613, ECF No. 22 (D.D.C.

Mar. 25, 2014) (ordering period of limited discovery).

       For now, it is hereby

       ORDERED that the parties shall engage in discovery with respect to the

question of exhaustion for a period of 45 days, commencing as of the date of this

memorandum opinion and order and ending on September 14, 2015. This brief

discovery period is limited to ascertaining facts regarding any available procedures for

administrative review of summary rejections of requests for reconsideration and

whether or not Adamski has exhausted them with respect to the instant claim. It is




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        FURTHER ORDERED that the parties shall appear for a status conference to

discuss briefing and other potential procedures regarding the exhaustion question on

September 21, 2015, at 2:30pm in Courtroom 17. It is

        FURTHER ORDERED Defendant’s [23] Motion to Dismiss is DENIED, for the

reasons set forth above. With respect to Defendant’s argument that 28 U.S.C. § 2401(a)

bars Adamski’s claim against the Secretary, the motion to dismiss is denied with

prejudice. With respect to Defendant’s argument that Plaintiff has otherwise failed to

state a claim on which relief may be granted, the motion to dismiss is denied without

prejudice. 4

        SO ORDERED.

DATE: July 31, 2015                              Ketanji Brown Jackson
                                                 KETANJI BROWN JACKSON
                                                 United States District Judge




4
  Given the unresolved exhaustion issue and the substantial confusion in the motion to dismiss briefing
concerning the nature of Adamski’s legal claim, this Court will neither reach nor resolve Defendant’s
remaining Rule 12(b)(6) arguments for dismissal at this time. Defendant will be permitted to raise
these contentions again, if necessary, in the context of any dispositive motions that might be filed after
the Court has considered and decided the exhaustion issue.


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