                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



TIMOTHY A. REMMIE,

       Plaintiff,
               v.                                          Civil Action No. 11-1261 (JEB)
HON. RAY MABUS,
Secretary of the Navy,

       Defendant.


                                  MEMORANDUM OPINION

       Plaintiff Timothy Remmie is a former Petty Officer in the United States Navy who

originally enlisted in 1978. During a contentious divorce, Remmie was accused by his then-wife

of sexually abusing their daughter, which ultimately led to his discharge from the Navy in 1993.

After the truth of her accusation was called into question during the divorce case, the Board for

the Correction of Naval Records (BCNR) corrected some of Plaintiff’s records, and he was

permitted to reenlist in 1999 until his voluntary retirement in 2006.

       He then brought this suit in July 2011 under the Administrative Procedure Act, asking

this Court for various forms of relief, including an order requiring the BCNR to further correct

his records. Defendant Ray Mabus, the Secretary of the Navy, has now moved to dismiss,

arguing that Plaintiff’s claims are barred by the applicable statute of limitations and are

otherwise nonjusticiable. Although some of Plaintiff’s requested remedies are beyond this

Court’s powers, the suit is timely and, in the main, seeks permissible relief. The Court,

accordingly, will largely deny the Motion.

I.     Background


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       According to the Complaint, Plaintiff had been serving in the Navy for twelve years

when, on November 25, 1990, after discovering his wife’s extramarital affair, he and his wife

agreed to separate and file for divorce. See Compl. at 2. In July 1991, after requesting custody

of his children, Plaintiff took his three-year-old daughter on a ten-day vacation to Florida. Id. at

3.   The following month, Plaintiff’s wife issued a complaint to the Virginia Beach Police

Department alleging that Plaintiff had sexually abused his daughter while in Florida, an

allegation Plaintiff denied. Id. After an investigation by the police and a polygraph test that

showed “no deception indicated,” Plaintiff was not charged with any crime; nonetheless, a

separate determination was made by the Virginia Beach Social Services Department that Plaintiff

had abused his daughter. Id. Plaintiff was also evaluated by a social worker with the Navy

Family Advocacy Program (FAP), but no conclusion was reached regarding the alleged sexual

abuse. Id.

       On August 12, 1992, a Family Advocacy Case Review Subcommittee determined that

sexual abuse was “substantiated.” Id. at 4. Relying on the subcommittee’s findings, the FAP

recommended Plaintiff be processed for separation given his commission of a serious sexual

perversion, and on April 28, 1993, an administrative discharge board approved the

recommendation, and Plaintiff was thereafter separated from the Navy. Id. During Plaintiff’s

subsequent divorce proceedings, the court granted Plaintiff’s petition for divorce and concluded

that the alleged child abuse had not been shown and that the allegations arose from a bitter

custody battle. Id. at 5. The court then imposed no restrictions on Plaintiff’s unsupervised

visitation rights. Id. Plaintiff thereafter requested independent reviews of his case by several

doctors, who found that the initial determinations of sexual abuse were flawed and that “there

was a strong possibility that Plaintiff did not sexually abuse his daughter.” Id.



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          On April 13, 1995, Plaintiff submitted a request to the BCNR seeking a discharge

upgrade to “honorable,” reinstatement to the Navy, back pay, credit for time lost due to his

adverse discharge, promotion, and the opportunity to finish his career. Id. at 5-6. In support of

his application, Plaintiff submitted his polygraph reports, police reports, doctors’ evaluations, the

divorce decree, and numerous letters of character reference. Id. at 6.         On June 3, 1997, the

BCNR issued its decision, which granted partial relief, including correcting Plaintiff’s discharge

to honorable, suspending his grade reduction, and removing or expunging any material or entry

inconsistent with the Board’s recommendation from Plaintiff’s record. Id. at 7-8. In September

1999, Plaintiff was allowed to reenlist in the Navy. Id. at 9. He retired in April 2006. Id. at 16.

          In the intervening years, Plaintiff attempted to have his name and information related to

child abuse removed from the Navy Central Registry. Id at 10-11. He ultimately made another

formal application in May 2007 to the BCNR seeking, among other things, removal of his name,

promotion, and retroactive reenlistment. Id. His application was denied on June 16, 2008. Id. at

18. Plaintiff’s name was finally removed from the registry on June 26, 2008, after Assistant

General Counsel Robert T. Cali found that the BCNR’s earlier recommendation was “untenable”

and ordered the removal. Id. The Board, however, has not otherwise corrected Plaintiff’s

record.     Id. at 18-19.   Plaintiff thus filed this case on July 12, 2011, seeking additional

corrections of his record, as well as retroactive reenlistment and promotion. Defendant has now

filed a Motion to Dismiss.

II.       Legal Standard

          In evaluating Defendant’s Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) and 12(b)(1),

the Court must “treat the complaint's factual allegations as true . . . and must grant plaintiff ‘the

benefit of all inferences that can be derived from the facts alleged.’” Sparrow v. United Air



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Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d

605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v.

FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). This standard governs the Court’s considerations of

Defendant’s Motion under both Rules 12(b)(1) and 12(b)(6). See Scheuer v. Rhodes, 416 U.S.

232, 236 (1974) (“in passing on a motion to dismiss, whether on the ground of lack of

jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the

complaint should be construed favorably to the pleader”); Walker v. Jones, 733 F.2d 923, 925-26

(D.C. Cir. 1984) (same). The Court need not accept as true, however, “a legal conclusion

couched as a factual allegation,” nor an inference unsupported by the facts set forth in the

Complaint. Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting

Papasan v. Allain, 478 U.S. 265, 286 (1986) (internal quotation marks omitted).

        To survive a motion to dismiss under Rule 12(b)(1), Plaintiffs bear the burden of proving

that the Court has subject matter jurisdiction to hear their claims. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992); U.S. Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24

(D.C. Cir. 2000). A court has an “affirmative obligation to ensure that it is acting within the

scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 185

F. Supp. 2d 9, 13 (D.D.C. 2001). For this reason, “‘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.” Id. at 13-14 (quoting 5A Charles A. Wright &

Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)).

Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court “may consider

materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of

jurisdiction.” Jerome Stevens, 402 F.3d at 1253; see also Venetian Casino Resort, L.L.C. v.



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E.E.O.C., 409 F.3d 359, 366 (D.C. Cir. 2005) (“given the present posture of this case – a

dismissal under Rule 12(b)(1) on ripeness grounds – the court may consider materials outside the

pleadings”); Herbert v. Nat’l Academy of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).

III.   Analysis

       Defendant makes two principal arguments in his Motion: first, all of Plaintiff’s causes of

action are barred by the applicable statute of limitations, see Mot. at 6-9, and second, Plaintiff’s

claims for retroactive reenlistment and promotion are nonjusticiable. Id. at 9-12. The Court will

deal with each in turn and then consider an APA argument raised in Defendant’s Reply Brief.

       A. Statute of Limitations

       Both parties agree that the applicable statute of limitations here is 28 U.S.C. § 2401(a),

which bars civil actions against the United States “unless the complaint is filed within six years

after the right of action first accrues.” See Mot. at 6; Opp. at 7. They also concur that the initial

BCNR denial took place in May 1998 and the reconsideration request was filed in May 2007.

See Mot. at 9; Opp. at 8. The question at first blush then appears to be whether this gap of more

than six years between the initial denial and the filing of this Complaint (or at least between the

denial and the request for reconsideration) dooms Plaintiff’s suit.

       Defendant helpfully informs the Court that different courts have treated this issue in

different ways. See Mot. at 8 (comparing cases). For example, some have held that “suit must

be filed within six years of the adverse board decision, regardless of whether, or when, an

application for reconsideration is filed.” Nihiser v. Marsh, 211 F. Supp. 2d 125, 129 (D.D.C.

2002) (citation omitted). “Others have held that the period for filing suit runs from the date of

reconsideration, provided that the application for reconsideration is filed within six years of the

adverse review board decision.” Id. (citing Lewis v. Sec’y of the Navy, 1990 WL 454624, at *8



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(D.D.C. 1990)). Still others have held that even if the request for reconsideration was filed more

than six years after the original decision, it would be timely if the Board on reconsideration

considered new evidence or changed circumstances. Green v. White, 319 F.3d 560, 566 (3d Cir.

2003).

         Intriguing as it may be to attempt a resolution of this split, Plaintiff explains that is

unnecessary for the simple reason of tolling. In other words, because Plaintiff was on active duty

from 1999 to 2006, the Servicemembers Civil Relief Act (SCRA) protects him. That statute

provides that “[t]he period of a servicemember’s military service may not be included in

computing any period limited by law, regulation, or order for the bringing of any action or

proceeding in a court.” 50 U.S.C. App. § 526(a). Plaintiff is correct.

         In Giel v. Winter, 503 F. Supp. 2d 208 (D.D.C. 2007), another court in this District

addressed the identical question in a similar challenge to the BCNR. Judge Thomas Hogan there

rejected the Government’s limitations argument, holding that “§ 526(a) tolls the six[-]year

limitation period of 28 U.S.C. § 2401.” Id. at 211; see also Baugh v. Mabus, 2011 WL 1103851,

at *4 (E.D. Pa. 2011) (§ 526(a) tolls limitations period in § 2401); Detweiler v. Pena, 38 F.3d

591, 593 (D.C. Cir. 1994) (holding predecessor of § 526(a) is “unexceptionable . . . [and] tolls

‘any’ limitations period ‘now or hereafter’ appearing in ‘any’ law for the bringing of ‘any’

action”).

         There is no basis for reaching a contrary conclusion here; in fact, Defendant appears to

concede this is so because he never mentions the limitations issue in his Reply.

         B. Nonjusticiability

         Defendant next argues that two of Plaintiff’s claims for relief – namely, his request for

retroactive reenlistment and promotion – are nonjusticiable. See Mot. at 9. In his Complaint,



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Plaintiff seeks a number of different forms of relief, including asking the Court to “[c]orrect

Plaintiff’s record to reflect” continuous enlistment from 1980 (actually, 1978) to 2006 and to

“[c]orrect Plainitff’s record to reflect promotion with his peers to E-9.” See Compl. at 19.

Plaintiff, however, concedes in his Opposition that the Court cannot order reenlistment or

retroactive promotion. See Opp. at 10. That is true.

       As the D.C. Circuit has clearly held, “Appellant’s request for retroactive promotion falls

squarely within the realm of nonjusticiable military personnel decisions.” Kreis v. Sec’y of Air

Force, 866 F.2d 1508, 1511 (D.C. Cir. 1989); see also Dodson v. U.S. Govt., Dept. of Army, 988

F.2d 1199, 1207 (Fed. Cir. 1993) (court does not order reenlistment; decision up to Army).

       This does not, however, result in the dismissal of Plaintiff’s case. As he accurately points

out, “While it may be true that the Court itself cannot award reenlistment or retroactive

promotion, Plaintiff’s complaint still contains viable claims upon which relief can be granted.”

See Opp. at 10. Indeed, if the BCNR acted inappropriately, this Court can “remedy the legally

deficient process so as to put [Plaintiff] into the position that he would have been had the proper

procedures been followed at the relevant times.” Dodson, 988 F.2d at 1208 (citation omitted);

see also Kreis, 866 F.2d at 1511-12 (court can evaluate, using familiar administrative-law

principles, reasonableness of Secretary’s decision with respect to appellant’s record and can

determine whether decisionmaking process deficient).

       C. APA Review

       For the first time in his Reply, Defendant also argues that Plaintiff’s entire suit for

correction of records should be dismissed. See Reply at 3-5. Such a request is quite premature.

First, the position is only raised in Defendant’s Reply, which means Plaintiff has not even had an




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opportunity to address it. Second, the administrative record has not yet been filed with the

Court, making such determination rather difficult.

       The parties should meet, confer, and agree on a scheduling order for filing of the record

and briefing. The Court may then take up the issue.

IV.    Conclusion

       For the foregoing reasons, the Court will issue a contemporaneous Order granting

Defendant’s Motion on the nonjusticiability of Plaintiff’s two requested forms of relief and

otherwise denying it.


                                                      /s/ James E. Boasberg
                                                      JAMES E. BOASBERG
                                                      United States District Judge
Date: March 5, 2012




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