                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
DELIA L. HOUSEAL,                    )
                                     )
                    Plaintiff,       )
                                     )
       v.                            )    Civil Action No. 12-2007 (RMC)
                                     )
JOHN M. MCHUGH,                      )
Secretary of the Army,               )
                                     )
                    Defendant.       )
____________________________________)

                                 MEMORANDUM OPINION

               Under the Administrative Procedure Act, 5 U.S.C. §§ 706 et seq., Delia L.

Houseal seeks judicial review of a final decision by the U.S. Army Board for Correction of

Military Records, refusing to cancel her U.S. Army Reserve Officers’ Training Corps

scholarship debt in the amount of $29,857.50. The Secretary of the Army has moved to dismiss

Ms. Houseal’s suit on two grounds: lack of subject matter jurisdiction and failure to state a claim.

The motion will be denied.

                                            I. FACTS

               Ms. Houseal née Williams trained as a cadet in Howard University’s U.S. Army

Reserve Officers’ Training Corps (ROTC) program for more than two years (September 1997 to

February 2000). Compl. [Dkt. 1] ¶ 5. 1 Before matriculating to Howard, Ms. Houseal had signed

a scholarship contract with the U.S. Army under its ROTC program. See Mot. to Dismiss

[Dkt. 7], Ex. [Dkt. 7-3] at 16, 20-29. Acceptance of the scholarship, which covered up to $9,000

in annual tuition and educational fees for four academic years, placed certain conditions on all

1
  For ease of reference, page numbers cited herein come from the pagination inserted by the
electronic case filing system.

                                                 1
ROTC candidates. Id. Among those obligations was the proviso that should a candidate

“disenroll[] from the ROTC program for any reason” the Army would have the discretion to

direct the ROTC candidate to repay “any amount of money, plus interest, equal to the entire

amount of financial assistance paid by the United States for [her] advanced education from the

commencement of [the] contractual agreement to the date of [her] disenrollment.” Id. at 26.

                 Ms. Houseal alleges that she was subjected to sexual harassment shortly after

enrolling in the Howard ROTC program. According to Ms. Houseal, Sergeant Miller, 2 a ROTC

instructor, repeatedly harassed her sexually in multiple ways, ranging from “comment[s] about

[her] breasts to solicitation for sex.” Compl. ¶ 6. Ms. Houseal did not report this harassment for

two years. Id. ¶ 7. After she complained, Lieutenant Colonel Ruffin 3 of the ROTC program at

Georgetown University, who was assigned to investigate her case, and Lieutenant Colonel

Tyrone Brown, the officer in charge of the Howard ROTC program, advised her to seek a leave

of absence from ROTC while her complaint was under investigation. Compl. ¶¶ 9-10.

                 Though Ms. Houseal’s leave request initially was denied, Compl., Ex. A at 2, it

was granted approximately four months later. Compl. ¶ 12. On February 10, 2000, Lt. Col.

Brown placed her on leave and instituted a “disenrollment action” against her. Id., Ex. E

[Dkt. 1-6] at 1. A disenrollment board convened on November 2, 2000, and recommended to

U.S. Army Cadet Command that Ms. Houseal be disenrolled. Id., Ex. G [Dkt. 1-8] at 3. Cadet

Command, however, rejected this recommendation due to “insufficient evidence to substantiate

indifferent attitude or breach of contract.” Id., Ex. H [Dkt.1-9] at 1. Cadet Command instructed

Howard ROTC to institute a new disenrollment action and, among other directives, to make


2
    Sgt. Miller’s first name does not appear in the record.

3
    Lt. Col. Ruffin’s first name does not appear in the record.

                                                   2
“specific findings” concerning the following: Ms. Houseal’s “allegation that she was forced to

leave the program because of sexual harassment” and her “indifferent attitude or breach of

contract.” Id. at 2. A second disenrollment hearing was held on September 13, 2001, and the

board again recommended disenrollment. Id., Ex. R [Dkt. 1-19] at 3. 4

               On October 22, 2002, over two and half years after she was placed on leave, the

Army informed Ms. Houseal that it had officially disenrolled her from Howard ROTC. The

Army cited her “indifferent attitude or lack of interest in military training as evidenced by [her]

failure to enroll in required Military Science courses” and informed Ms. Houseal that she either

would have to serve “active duty in an enlisted status” or repay the $29,857.50 in scholarship

funds that the Army had paid to date. Id., Ex. T [Dkt. 1-21] at 1; Sec. Mem. [Dkt. 7-1] at 3.

Although the notice advised Ms. Houseal that she had fourteen days “to appeal/dispute the

amount or validity of [her scholarship] debt,” Compl., Ex. T at 2; see 10 U.S.C. § 1552(b), the

Secretary states that Ms. Houseal did not do so, Sec. Mem. at 3. Rather, Ms. Houseal waited

until late 2007 to submit to the U.S. Army Board for Correction of Military Records (ABCMR)

an Application for Correction of Military Records challenging the Army’s repayment demand. 5

Compl. ¶ 27; Sec. Mem. at 3.


4
 Ms. Houseal did not attend the September 13 hearing. Compl., Ex. R at 1. She claims that she
did not receive sufficient notice of the September 13 hearing, which prompted Howard ROTC to
schedule a third disenrollment hearing for October 18, 2001. Compl. ¶ 25; Compl., Ex. S [Dkt.
1-20] at 1. However, Ms. Houseal avers that “Howard ROTC has supplied no record of a
hearing” and posits that the October 18 hearing was “probably never held.” Compl. ¶ 25.

5
 The parties disagree as to when exactly Ms. Houseal filed her Application for Correction of
Military Records. Ms. Houseal claims that she filed the Application on October 1, 2007, for
which ABCMR acknowledged receipt on January 8, 2008. Compl., Ex. U [Dkt. 1-22] at 1. The
Secretary contends that Ms. Houseal did not file her Application until December 5, 2007. Sec.
Mem. at 3; Mot. to Dismiss Ex. at 14-15. As discussed infra, 10 U.S.C. § 1552(b) bars
applications for the correction of military records filed more than three years after the discovery

                                                  3
               ABCMR received an advisory opinion from Cadet Command which stated that

Howard ROTC had disenrolled Ms. Houseal for “breach of contract” and recommended against

cancellation of her debt. Compl., Ex. V [Dkt. 1-23] at 1. Upon ABCMR’s invitation, Ms.

Houseal filed a rebuttal. Compl. ¶ 29. She stated that she “did not voluntarily breach the terms

and conditions of [her] contract,” but instead “was intentionally misinformed [by] Army ROTC

staff at Howard University on how to properly move forward with the program while the sexual

harassment investigation was in process.” Id., Ex. X [Dkt. 1-25] at 1.

               ABCMR notified Ms. Houseal of its decision in a letter dated August 6, 2008.

Id., Ex. Y [Dkt. 1-26] at 1. ABCMR first noted that Ms. Houseal’s Application was late because

she had not filed it within three years after disenrollment from Howard ROTC, as required by 10

U.S.C. § 1552(b). Recognizing that the law empowers ABCMR to waive the statute of

limitations in the interest of justice, ABCMR “elected to conduct a substantive review of [the]

case.” Id. at 2. It explained that it would excuse Ms. Houseal’s late filing in the interest of

justice “only to the extent relief, if any, [were] granted.” Id. ABCMR then turned to the merits

of Ms. Houseal’s Application and denied it. ABCMR found that Ms. Houseal was “not entitled

to cancellation of her ROTC scholarship debt” because the Army had disenrolled her from

Howard ROTC for “breach of contract” and she had failed to submit evidence that demonstrated

“that the record [was] in error or unjust.” Id. at 9. Ms. Houseal argues that ABCMR’s merits

analysis contained two factual errors: it “incorrectly observed that [she] was disenrolled from

ROTC ‘due to refusal of a commission;’” and it failed to recognize that the results of the October




of an error or injustice unless ABCMR determines that excusing the late filing is in the interest
of justice. Because the three-year anniversary of Ms. Houseal’s disenrollment from Howard
ROTC was October 22, 2005, it is inconsequential to this case whether Ms. Houseal filed her
Application on October 1, 2007, or two months later.

                                                  4
18, 2001 disenrollment hearing were unavailable for its review because that hearing “was likely

never held.” Compl. ¶ 30.

               Ms. Houseal filed suit on December 14, 2012. She argues that ABCMR’s

rejection of her Application was “arbitrary, capricious, an abuse of discretion, and contrary to

law” because ABCMR did not “consider the relevant facts and circumstances of [her]

disenrollment from ROTC and resulting discharge from the Army Reserve.” Compl. ¶ 31.

Specifically, Ms. Houseal contends that ABCMR’s decision contained at least one “blatant

factual error,” and “failed to explain why taking a leave of absence from the ROTC program so

that her sexual harassment allegation could be investigated constituted a breach.” Id. Ms.

Houseal asks this Court to declare ABCMR’s decision contrary to law or remand the matter to

ABCMR for renewed consideration. Id. at 9. The Secretary moved to dismiss and Ms. Houseal

opposes. See Opp’n [Dkt. 8]; Surreply [Dkt. 15-1].

                                    II. LEGAL STANDARDS

               The Secretary challenges the subject matter jurisdiction of this Court. He

contends that Ms. Houseal’s debt cancellation request, although styled as a prayer for equitable

relief, is actually a claim for money damages against the United States in excess of $10,000, for

which this Court lacks subject matter jurisdiction under the Tucker Act, 28 U.S.C. §§ 1346,

1491. The Secretary also argues that Ms. Houseal has failed to state a claim because she filed

her military records correction request after the three-year statute of limitations expired and did

not expressly ask ABCMR to waive that time bar.

               A. Lack of Subject Matter Jurisdiction

               The Secretary’s jurisdictional argument is made pursuant to Federal Rule of Civil

Procedure 12(b)(1). That Rule requires courts reviewing a motion to dismiss to construe the



                                                 5
complaint liberally, granting the plaintiff the benefit of all inferences that can be derived from

the facts alleged. Barr v. Clinton, 370 F. 3d 1196, 1199 (D.C. Cir. 2004). A court also may

consider materials outside the pleadings to determine its jurisdiction, Settles v. U.S. Parole

Comm’n, 429 F.3d 1098, 1107 (D.C. Cir. 2005), and “need not accept factual inferences drawn

by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the

Court accept plaintiffs’ legal conclusions.” Speelman v. United States, 461 F. Supp. 2d 71, 73

(D.D.C. 2006). Rule 12(b)(1) places the burden of demonstrating that subject matter jurisdiction

exists on the party claiming such jurisdiction. Khadr v. United States, 529 F.3d 1112, 1115

(D.C. Cir. 2008); see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)

(noting that federal courts are courts of limited jurisdiction and “[i]t is to be presumed that a

cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon

the party asserting jurisdiction.” (internal citations omitted)). No action of a party can confer

subject matter jurisdiction on a federal court because subject matter jurisdiction is an Article III

and a statutory requirement. Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir.

2003).

               B. Failure to State a Claim

               The Secretary’s motion to dismiss also is premised on Federal Rule of Civil

Procedure 12(b)(6). A motion to dismiss for failure to state a claim challenges the adequacy of a

complaint on its face, testing whether a plaintiff has properly stated a claim. Fed. R. Civ. P.

12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (explaining that a complaint must

be sufficient to “‘give [a] defendant fair notice of what the claim is and the grounds upon which

it rests’” (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that



                                                  6
is “plausible on its face.” Twombly, 550 U.S. at 570. “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556).

                In deciding a motion under Rule 12(b)(6), a court must treat the complaint’s

factual allegations as true, “even if doubtful in fact.” Twombly, 550 U.S. at 555. Yet, it “may

consider the facts alleged in the complaint, documents attached thereto or incorporated therein,

and matters of which [the court] may take judicial notice.” Abhe & Svoboda, Inc. v. Chao, 508

F.3d 1052, 1059 (D.C. Cir. 2007) (internal quotation marks and citation omitted). The court

need not accept as true legal conclusions set forth in a complaint. Iqbal, 556 U.S. at 678

(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.”). “While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations. When there are well-pleaded factual

allegations, a court should assume their veracity and then determine whether they plausibly give

rise to an entitlement to relief.” Id. at 679.

                                           III. ANALYSIS

                A. Jurisdiction

                The initial dispute between the parties is whether this Court has jurisdiction over

Ms. Houseal’s suit. It is “axiomatic that the United States may not be sued without its consent

and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463

U.S. 206, 212 (1983); see also FDIC v. Meyer, 510 U.S. 471, 475 (1994) (explaining that

without a specific waiver, the federal government and its agencies are protected from suit by the

doctrine of sovereign immunity). Ms. Houseal brings her suit under the Administrative

Procedure Act (APA), which provides a limited waiver of sovereign immunity for actions



                                                  7
“seeking relief other than money damages.” 5 U.S.C. § 702 (emphasis added). The decisions of

military record corrections boards “are subject to judicial review” under the APA,” Chappell v.

Wallace, 462 U.S. 296, 303 (1983), and, if Ms. Houseal presents an APA claim, this Court is the

appropriate forum to hear it. See 28 U.S.C. §§ 701 et seq.; 1331; 1391(e); and 2201-2202.

                The Secretary argues that the Tucker Act applies. The Tucker Act provides only

a limited waiver of sovereign immunity for money damage claims founded on contracts with the

United States or federal constitutional or statutory authority. 28 U.S.C. § 1491(a). 6 It vests

exclusive jurisdiction in the U.S. Court of Federal Claims when the monetary relief sought

exceeds $10,000. See Brown v. United States, 389 F.3d 1296, 1297 (D.C. Cir. 2004) (per

curiam). The Secretary contends that Ms. Houseal’s action is a request for money damages

cloaked in declaratory relief garb. Because she seeks to cancel a debt to the United States greater

than $10,000, he argues that this Court must dismiss the Complaint for lack of subject matter

jurisdiction.

                The question is whether Ms. Houseal’s request for injunctive relief is actually a

demand for money subject to the Tucker Act. The answer lies within this Circuit’s “bright line”

6
  There are two parts to the Tucker Act: 28 U.S.C. § 1346(a)(2) and 28 U.S.C. § 1491. The
former, which is “commonly known as the ‘Little Tucker Act,’” Randall v. United States, 95
F.3d 339, 346 (4th Cir. 1996), provides district courts with concurrent jurisdiction for monetary
damage claims that are $10,000 or less, Smalls v. United States, 471 F.3d 186, 189 (D.C. Cir.
2006). Although Ms. Houseal maintains that the APA should apply, she offers to “waive[] any
right or entitlement to recover relief relating to more than $10,000 of her debt to the United
States government” should this Court determine that her case falls under the Tucker Act. Opp’n
at 8. The Secretary counters that Ms. Houseal’s attempt to fit her case within the Little Tucker
Act is futile because she failed to bring it within six years after she was disenrolled from Howard
ROTC. Mot. to Dismiss at 14 (discussing 28 U.S.C. § 2501, which provides that “[e]very claim
of which the United States Court of Federal Claims has jurisdiction shall be barred unless the
petition thereon is filed within six years after such claim first accrues”). Because this Court
determines that it has jurisdiction over Ms. Houseal’s matter under the APA, it does not address
the potential applicability of the Little Tucker Act or § 2501’s time bar.

                                                 8
approach to the statute. Smalls v. United States, 471 F.3d 186, 189 (D.C. Cir. 2006). Tucker Act

jurisdiction exists only where “the plaintiff seeks money or the district court grants it,” Kidwell v.

Dep’t of the Army, Bd. for Corr. of Military Records, 56 F.3d 279, 285 (D.C. Cir. 1995). To

determine the nature of the relief sought, courts in this Circuit “must generally limit [their

inquiries] to the four corners of the complaint.” Tootle v. Sec’y of the Navy, 446 F.3d 167, 174

(D.C. Cir. 2006). Where a complaint prays only for equitable relief, district courts consider

whether the requested remedy “has considerable value independent of any future potential for

monetary relief,” to determine if the complaint “in essence” is a request for monetary damages.

Smalls, 471 F.3d at 190. The D.C. Circuit has warned against inquiring into the consequences

that flow from a plaintiff’s victory, explaining that such an analysis requires a look outside the

record and complicates the jurisdictional issue. Kidwell, 56 F.3d at 285.

               Whether a request for equitable relief from an agency’s refusal to forgive a debt is

in essence a claim for money damages appears to be an issue of first impression in this Circuit.

Many of the cases the Secretary cites are inapposite. See Brazos Elec. Power Coop., Inc. v.

United States, 144 F.3d 784, 787 (Fed. Cir. 1998) (Tucker Act jurisdiction lies in the Court of

Federal Claims when plaintiff “[i]n essence . . . seek[s] a refund of money that it claims was

wrongfully paid to the federal government” regardless of whether the refund would be sent

directly to plaintiff or instead credited toward an existing debt owed to the United States);

Douglas Timber Operators, Inc. v. Salazar, 774 F. Supp. 2d 245, 261 (D.D.C. 2011) (Tucker Act

applies to suit seeking equitable enforcement of contractual agreement with the United States),

appeal dismissed, No. 11-5137, 2011 WL 2618209 (D.C. Cir. June 24, 2011); Bublitz v.

Brownlee, 309 F. Supp. 2d 1, 8-9 (D.D.C. 2004) (request for injunction correcting military

record to show earlier date of promotion subject to Tucker Act because, if successful, plaintiff



                                                  9
would receive a monetary payout). Others are ambiguous as to the legal issue. See Neutze v.

United States, 88 Fed. Cl. 763, 768, 771 (2009) (finding multiple potential bases for Tucker Act

jurisdiction, including plaintiff’s request for “basic pay lost” and educational debt relief, but

doubting that the Court of Federal Claims has jurisdiction to declare plaintiff is not obligated to

repay the United States for an Army ROTC scholarship that she received); Wilson v. McHugh,

842 F. Supp. 2d 310, 316 n.1 (D.D.C. 2012) (opining that but for plaintiff’s decision to not seek

monetary relief greater than $10,000, the court would not have jurisdiction over a prayer for

judicial review of ABCMR’s denial of several requests, which included back pay and discharge

of education debt). Indeed, Ms. Houseal has identified only one decision directly on point. See

Roetenberg v. Sec’y of the Air Force, 73 F. Supp. 2d 631 (E.D. Va. 1999).

               The Roetenberg plaintiff asked for judicial review of the Air Force Board for

Correction of Military Records’s (AFBCMR) denial of her request to revise her military records

and cancel her educational debt. Id. at 634-35. The Secretary of the Air Force, countering with

the same argument raised in this case, contended that the Tucker Act stripped the district court of

subject matter jurisdiction because the ultimate purpose of the plaintiff’s suit was debt

cancellation, which in essence was a request for monetary relief. Id. at 635. The Roetenberg

Court, however, resoundingly rejected the argument. It explained that the possibility the

plaintiff’s suit for APA review could result in AFBCMR eliminating her educational debt did not

transform her request for equitable relief into a suit for money damages. Id. at 635-36

(“[P]laintiff’s complaint is [not] a claim for money damages against the government . . .

[because] the financial benefit or detriment is merely a potential consequence of the equitable

relief sought.”). Roetenberg emphasized that a contrary ruling would shut such plaintiffs out of

the court system entirely. Because the Court of Federal Claims may only grant equitable relief



                                                  10
as “an incident of and collateral to” rendering a money judgment, 28 U.S.C. § 1491(a)(2), “a

federal district court [was] the only appropriate forum for [the] plaintiff’s claim,” id. at 636

(citing Randall v. United States, 95 F.3d 339, 347 (4th Cir. 1996)).

               The D.C. Circuit in an analogous context has indicated that it would adopt the

Roetenberg analysis. In Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989), the D.C. Circuit

considered whether jurisdiction could be had in district court when a farming family sought a

declaration that the Department of Agriculture’s suspension of more than $600,000 in

agricultural program payments to them was arbitrary and capricious. Id. at 977, 984. The

Circuit held that the district court had jurisdiction over the action. The Circuit found that “[t]he

redress [plaintiffs] want––a redetermination, in a fair and impartial hearing, of their status under

the subsidy statutes––simply is not money damages in compensation for the legal injury they

allegedly have suffered.” Id. at 984. While the Roetenberg plaintiffs certainly hoped that a new

determination by the agency would result in the disbursement of federal monies, the requested

declaratory order would not compel such a result. Id.

               This Court concludes that it has subject matter jurisdiction over Ms. Houseal’s

claim. The analyses in Roetenberg and Yeutter are entirely persuasive in their fine distinctions

between seeking a money judgment from the United States and seeking an equitable declaration

of rights that may, or may not, lead to the payment of money from the public fisc. Indeed, the

Federal Circuit also has recognized that “there is a substantive difference between a plaintiff

seeking the return of money it already paid the government and a plaintiff never having to pay

the government in the first place.” Gonzales & Gonzales Bonds and Ins. Agency, Inc. v. Dep’t of

Homeland Sec., 490 F.3d 940, 945 (Fed. Cir. 2007) (determining that the Court of Federal

Claims lacked jurisdiction under the Tucker Act where a plaintiff sought equitable relief against



                                                  11
the Department of Homeland Security that, if successful, would have relieved plaintiff’s debt

obligations to the government). Ms. Houseal’s suit falls in the latter category. The present

Complaint plainly does not seek money from the United States and, if her suit prevails, this

Court will not award such relief. Ms. Houseal asks only for court review of an adverse agency

action and either a finding that ABCMR’s decision was contrary to law or a remand to the

agency for renewed consideration. Such a request for equitable relief is as much non-cognizable

in the Court of Federal Claims under the Tucker Act as it is squarely within this Court’s

jurisdiction under the APA. See Remmie v. Mabus, 898 F. Supp. 2d 108, 115-18 (D.D.C. 2012)

(“Because any financial benefit Plaintiff might receive is not remotely within the Court’s control,

Plaintiff’s claim cannot be characterized as a claim for money damages . . . and is not within the

scope of the Tucker Act. As a result, Plaintiff’s claim for injunctive relief plainly fits within this

Court’s subject-matter jurisdiction.”). 7

               B. Issue Waiver Before ABCMR

               The Secretary argues in the alternative that even if this Court has jurisdiction over

Ms. Houseal’s claim under the APA, the matter must be dismissed for failure to state a claim.

Sec. Mem. at 15-17. This argument is premised on 10 U.S.C. § 1552(b), which requires

claimants to seek a military records correction “within three years after . . . discover[ing] the



7
 The Secretary counters that because Ms. Houseal has made “substantial” payments on her debt,
which the government would be forced to refund if the Court grants her relief, her claim is for
money damages and is subject to the Tucker Act. Reply, Ex. 1 [Dkt. 14-1] (Blanchard Decl.)
¶¶ 7, 8, 15 (indicating that Ms. Houseal has paid $7,122.77 toward the balance of her total debt,
which due to interest, penalties, and administrative charges, now totals $33,734.82). However,
“financial benefit or detriment is merely a potential consequence of the equitable relief sought.”
Roetenberg, 73 F. Supp. 2d at 635-36 (emphasis added). Further, the Secretary has failed to
explain why this Court would not have jurisdiction over the sum Ms. Houseal has paid,
$7,122.77, which is within the jurisdictional limitations of the Little Tucker Act.

                                                  12
error or injustice.” 10 U.S.C. § 1552(b).    The statute of limitations may be excused by a

military corrections board if it determines that doing so would be “in the interest of justice.” Id.

               The Secretary argues that Ms. Houseal had three years from the time she was

notified of her disenrollment and debt obligations to petition ABCMR for relief. Sec. Mot. at 15

(citing 10 U.S.C. § 1552(b)). Because she waited five years to file her Application, the Secretary

reasons that she was obligated to ask ABCMR to excuse her late filing, id., but she failed to

complete that portion of the Application. Sec. Mot. at 14. The Secretary asserts that Ms.

Houseal’s failure to request leave to late file “deprived the agency of the opportunity to address

anything she may devise at this late stage” and “forfeited her ability to make that argument to

this Court.” Sec. Mot. at 16.

               Ms. Houseal does not dispute that her Application to ABCMR was untimely

under 10 U.S.C. § 1552(b). She contends, however, that she provided an explanation to

ABCMR for her late filing. Ms. Houseal notes that she informed ABCMR that Howard ROTC

personnel had “intentionally misinformed [her] . . . on how to properly move forward with the

[ROTC] program while the sexual harassment investigation was in process,” Opp’n at 11;

Compl., Ex. X at 1, so that she did not know whether the disenrollment notice was “just one in a

series of administrative actions” or when she “needed to seek administrative appeal[],” Opp’n at

12. Moreover, Ms. Houseal argues ABCMR relieved her of the obligation to justify her late

filing any further by connecting its decision to waive the time limit to its evaluation of the merits

of her Application. Opp’n at 10. Ms. Houseal interprets ABCMR’s statement that it would

“conduct a substantive review of [her] case and, only to the extent relief, if any, [were] granted,

[would] determine[] it [was] in the interest of justice to excuse [her] failure to timely file,”

Compl., Ex. Y at 2, to mean that if ABCMR decided that her “claim merited relief, the filing



                                                  13
time limit [was] waived and, if not it [was] not,” Opp’n at 10. In other words, Ms. Houseal

contends that because the analyses were explicitly merged, the entirety of ABCMR’s decision

(timeliness and merits) is subject to judicial review via the APA. Surreply at 10. The Court

agrees.

               ABCMR clearly indicated that it would waive the limitations period of 10 U.S.C.

§ 1552(b) if it found Ms. Houseal’s claim to have merit. At the outset of its decision, ABCMR

announced that it would conduct a “substantive review” of the merits of Ms. Houseal’s case after

which it would either grant or deny relief. If it did the former, the statute of limitations was

waived, otherwise, it was not. In resolving Ms. Houseal’s matter in this way, ABCMR followed

the “sensible approach” that this Court recommended years ago. In Allen v. Card, 799 F. Supp.

158 (D.D.C. 1992), military correction boards deciding whether to waive § 1552(b)’s statute of

limitations were advised to:

               analyze both the reasons for the delay and the potential merits of the claim
               based on a cursory review. If a claim appears particularly meritorious, it
               may be in the interest of justice to provide a complete review of the
               merits, even if there has been a delay in bringing the claim. The longer
               the delay has been and the weaker the reasons for the delay are, the more
               compelling the merits would need to be justify a full review.

Id. at 164-65. ABCMR thus expressly tied its waiver determination to its merits analysis of Ms.

Houseal’s Application.

               There is no doubt that waiver determinations are subject to judicial review.

Dickson v. Sec’y of Def., 68 F.3d 1396, 1404 (D.C. Cir. 1995) (“[N]either the language of

§ 1552(b) nor the statutory scheme in which it is embedded provide ‘persuasive reason to

believe’ that Congress intended that waiver determinations be committed solely to agency

discretion.” (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967)). Here, the Secretary



                                                 14
does not challenge ABCMR’s decision to address the merits of Ms. Houseal’s Application

without explicitly deciding whether the statute of limitations should be waived. The Secretary

instead faults Ms. Houseal for not explicitly placing an explanation for her late filing directly

onto the Application form or in an appropriate motion. He stresses that Ms. Houseal’s

statements to ABCMR regarding her confusion as to the sexual harassment process were made

only in rebuttal to an advisory opinion that Cadet Command submitted to ABCMR, which was

silent as to whether the statute of limitations should apply to her Application. See Compl. Ex. V.

The Secretary’s arguments, however, ignore the plain text of 10 U.S.C. § 1552(b). That

provision does not require applications for corrections of military records, filed more than three

years after the claimant discovers an error or injustice, to contain any explanation for the late

filing. 10 U.S.C. § 1552(b). It merely empowers a military records correction board to “excuse

a failure to file within three years after discovery if [the Board] finds it to be in the interest of

justice.” Id. The Secretary would have this Court rewrite the statute to penalize late-filing

applicants who do not submit the reasons for their delay on the application form. The Court

declines to elevate form over substance and so constrain ABCMR’s discretion in determining the

interests of justice.

                Ms. Houseal’s merits arguments, in short, were the fulcrum on which waiver of

§ 1552(b)’s time bar would rise or fall. Indeed, ABCMR’s sole reason for denying relief to Ms.

Houseal was that “the overall merits of [her] case [were] insufficient as a basis for correction of

[her] records . . . .” Compl., Ex. Y at 10 (emphasis added). The Secretary does not, and cannot,

contend Ms. Houseal did not raise these merits arguments before ABCMR. Accordingly, Ms.

Houseal has stated a claim that survives the Secretary’s Rule 12(b)(6) motion.




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                                    IV. CONCLUSION

              For the reasons discussed above, the Court will deny Defendant’s Motion to

Dismiss [Dkt. 7]. The Deputy Clerk will set a status conference. A separate Order accompanies

this Memorandum Opinion.


                                                                 /s/
                                                  ROSEMARY M. COLLYER
Date: August 27, 2013                             United States District Judge




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