United States District Court, E.D. Virginia, Richmond Division
DAVID P. SHURLAND, Plaintiff,
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS, Defendant.
REPORT AND RECOMMENDATION
J. NOVAK UNITED STATES MAGISTRATE JUDGE.
David P. Shurland ("Plaintiff), proceeding pro
se, brings this action against the Air Force Board for
Correction of Military Records ("Defendant" or the
"Board") pursuant to the Administrative Procedures
Act ("APA"), seeking judicial review of the
Board's decision to deny his request for a retroactive
medical retirement with a disability rating of greater than
50 percent. This matter comes before the Court for a
Report and Recommendation pursuant to 28 U.S.C. §
636(b)(1)(B) on Defendant's Motion to Dismiss (ECF No.
9), or, in the alternative, Motion for Summary Judgment (ECF
reasons set forth below, the Court recommends that
Defendant's Motion to Dismiss (ECF No. 9) be DENIED, and
that Defendant's Motion for Summary Judgment (ECF No. 10)
considering a motion to dismiss pursuant to Federal Rule of
Procedure 12(b)(6), the Court will accept a plaintiffs
well-pleaded allegations as true and view the facts in a
light most favorable to the plaintiff. Mylan Labs., Inc.
v. Matkari, 7 F.2d 1130, 1134 (4th Cir. 1993). However,
the Court need not accept the plaintiffs legal conclusions.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although as a general rule, extrinsic evidence should not be
considered at the motion to dismiss stage, the Fourth Circuit
has consistently held that when a defendant includes an
attachment with a motion to dismiss, "a court may
consider [the attachment] in determining whether to dismiss
the complaint [if] it was integral to and explicitly relied
on in the complaint and [if] the plaintiffs do not challenge
its authenticity." Am. Chiropractic Ass'n v.
Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir.
2004) (citing Phillips v. LCI Int'l Inc., 190
F.3d 609, 618 (4th Cir. 1999)). Because Plaintiff does not
challenge the authenticity of the administrative record
attached as exhibits to Defendant's Memorandum in
Support, and because the administrative record proves
integral to Plaintiffs claims, the Court also relies on the
administrative record in resolving Defendant's Motion to
Dismiss. (Exs. 1 & 2 to Def.'s Mem. in Supp. of
Def.'s Mot. to Dismiss or, in the Alternative, for Summ.
J. ("AR") (ECF Nos. 11-1, 11-2).) The Court
likewise accepts the administrative record attached to
Defendant's Memorandum as the undisputed facts for the
purposes of resolving Defendant's Motion for Summary
Judgment. Chan v. USCIS, 141 F.Supp.3d 461, 463
(W.D. N.C. 2015) ("[T]he administrative record provides
the complete factual predicate for the court's
review." (quoting Krichbaum v. Kelley, 844
F.Supp. 1107, 1110 (W.D. Va. 1994), affd, 61 F.3d
900 (4th Cir.1995))); see also LivinRite, Inc. v.
Azur, 386 F.Supp.3d 644, 650 (E.D. Va. 2019) (explaining
that in considering a motion for summary judgment based on an
underlying administrative record, unless the record is
somehow contradicted, "the presence or absence of a
genuine dispute of material fact is not an issue").
Based on these standards, the Court accepts the following
Plaintiffs Request for Correction of His Military
entered the United States Air Force on February 19, 1969, and
served until December 2, 1975, at which point the Air Force
honorably discharged him. (AR at 54-56.) The Air Force
classified Plaintiffs discharge as "Involuntary
discharge - Unsuitability, personality disorder,"
pursuant to Air Force Manual ("AFM") §
39-12. (AR at 56-57.)
thirty-five years later, on August 18, 2010, Plaintiff
submitted an application to the Board for the correction of
his military records, requesting that the Board: (1) properly
recognize his "heroic" actions in response to a
military base fire, during which he helped to save the life
of a fellow serviceman; (2) correct his record to reflect a
medical discharge instead of an administrative discharge for
unsuitability; and, (3) provide him with copies of records
regarding his court-martial, evaluation by a sanity board and
the Air Force's subsequent decision to drop the
court-martial charges. (AR at 138, 142.)
23, 2011, the Board completed its evaluation and denied
Plaintiffs application as untimely. (AR at 141.)
Specifically, because Plaintiff failed to file his petition
within three years of discovering the alleged error or
injustice in his military records - as required by 10 U.S.C.
§ 1552 - the Board found that Plaintiff had filed an
untimely application. (AR at 141.) Moreover, because
Plaintiff did not demonstrate a "plausible reason for
the delay in filing" nor present "issues of error
or injustice which require resolution on the merits,"
the Board concluded that it was not "in the interest of
justice to excuse [Plaintiffs] failure to file in a timely
manner." (AR at 141.) With regard to Plaintiffs request
for military personnel records, the Board relayed to
Plaintiff that he should contact the National Personnel
Records Center, the proper custodian of the requested
records. (AR at 141.)
applied to the Board again in 2013, submitting two
applications dated January 31, 2013, (AR at 18), and December
6, 2013, (AR at 31), both of which requested reconsideration
of his previous application and demanded that the Board
change his discharge records to reflect a medical, as opposed
to honorable and administrative, discharge, (AR at 14). The
Board subsequently denied Plaintiffs request for
reconsideration on June 27, 2014. (AR at 14-17.) In its
written decision, the Board explained that "[it]
remained unconvinced that [Plaintiff] has been a victim of an
error or injustice." (AR at 16.) And further, the Board
"remain[ed] unpersuaded [that] the record raises issues
of error or injustice which require resolution on the
merits." (AR at 16.) The Board concluded that "the
evidence [that Plaintiff provided] did not meet the criteria
for reconsideration and the application will only be
reconsidered upon the submission of newly discovered relevant
evidence not considered with this application." (AR at
submitted another application to the Board on June 10, 2015,
(AR at 45), which the Board regarded as a second request for
reconsideration, (AR at 9). The Board again proved
unpersuaded that "the requested relief [was]
warranted." (AR at 11.) The Board explained that
"the evidence [that Plaintiff] presented did not
demonstrate the existence of material error or injustice ...
and the application will only be reconsidered upon the
submission of newly discovered relevant evidence not
considered with [the] application." (AR at 12.)
filed his third, and final, reconsideration request with the
Board on May 10, 2017. (AR at 2.) The Board denied Plaintiffs
request on September 25, 2018, explaining that it had
"determined [that Plaintiffs request] contain[ed] no new
relevant evidence and therefore does not meet the criteria
for reconsideration." (AR at 1.) The Board added that
"[a]bsent judicial action, the Air Force considers the
[Board's] decision ... final." (AR at 2.)
the Board's denial of his third request for
reconsideration, on January 14, 2019, Plaintiff filed the
instant suit against the Board, seeking judicial review of
his discharge records for "accuracy and fairness"
and "the correction of discrepancies and errors."
(Compl. ¶ 4.) The Court interprets Plaintiffs Complaint
as seeking judicial review, pursuant to the APA, of the
Board's decision to deny his application as untimely and
its conclusion that it was not in the interest of justice to
excuse his untimeliness.
response to Plaintiffs Complaint, on March 18, 2019,
Defendant filed a Motion to Dismiss or, in the alternative,
Motion for Summary Judgment. (ECF Nos. 9, 10.) In support of
its Motions, Defendant first argues that pursuant to Rule
12(b)(6), Plaintiffs Complaint should be dismissed as
time-barred, because Plaintiff filed his Complaint beyond the
six-year limitations period set forth in 28 U.S.C. §
2401(a). (Mem. in Supp. of Def.'s Mot. to Dismiss or, in
the Alternative, for Summ. J. ("Def.'s Mem.")
(ECF No. 11) at 15.) In the alternative, Defendant asserts
that the Court should grant summary judgment in its favor
because there is "no genuine issue of material fact and
[Defendant] is entitled to judgment as a matter of law."
(Def.'s Mem. at 15.)
filed a Response in Opposition to Defendant's Motions on
March 25, 2019, (Mem. in Supp. of Pl.'s Mot. to Opp.
Dismissal & to Pursue a State Pros. ("Pl.'s
Mem.") (ECF No. 13)), to which Defendant filed its Reply
on March 29, 2019, (Reply Br. in Supp. of Def.'s Mot. to
Dismiss or, in the Alternative, for Summ. J.
("Def.'s Reply") (ECF No. 14)). Plaintiff
subsequently filed another Response to Defendant's Reply
on April 3, 2019, (Pl.'s Reply Br. in Supp. of Pl.'s
Mot. to Opp. Dismissal & to Pursue a State Pros.
("Pl.'s Reply") (ECF No. 15)), rendering
Defendant's Motions now ripe for review.
RULE 12(b)(6) MOTION TO DISMISS
Defendant's Motion to Dismiss pursuant to Rule 12(b)(6)
determines the plausibility of Plaintiff s claims, the Court
will consider that Motion before resolving Defendant's
Motion for Summary Judgment.
Standard of Review.
motion to dismiss pursuant to Rule 12(b)(6) tests sufficiency
of a complaint or a counterclaim. Republican Party of N.C
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). Under the
Federal Rules of Civil Procedure, a complaint or counterclaim
must state facts sufficient to '"give the defendant
fair notice of what the ... claim is and the grounds upon
which it rests.'" Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). The facts alleged must
be sufficient to "state all the elements of [any]
claim[s]." Bass v. E.I. Dupont de Nemours &
Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing
Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th
Cir. 2002) and Iodice v. United States, 289 F.3d
270, 281 (4th Cir. 2002)). Ultimately, the "[f]actual
allegations must be enough to raise a right to relief above
the speculative level," rendering the right
"plausible on its face" rather than merely
"conceivable." Twombly, 550 U.S. at 544.
here, although a motion to dismiss filed pursuant to Rule
12(b)(6) typically may not address the merits of any
affirmative defenses, in certain circumstances "where
facts sufficient to rule on the affirmative defense are
alleged in the complaint, the defense may be reached by a
motion to dismiss filed under Rule 12(b)(6)."
Goodman v. Praxair, Inc. 494 F.3d 458, 464 (4th Cir.
2007) (citing Richmond, Fredericksburg & Potomac R.R.
Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993)). This
principle applies only when "all facts necessary to the
affirmative defense clearly appear on the face of the
complaint." Goodman, 494 F.3d at 464 (internal
quotation marks omitted).
contends that Plaintiffs Complaint should be dismissed for
failure to state a claim upon which relief can be granted.
(Def.'s Mem. at 14.) In support of its Motion, Defendant
argues that Plaintiffs claim is barred by the six-year
limitations period set forth in 28 U.S.C. § 2401(a).
(Def.'s Mem. at 15.) Based on this limitations period,
Defendant avers that because the Board denied Plaintiffs
initial petition on June 23, 2011, Plaintiffs right to file
for judicial review of that decision expired on June 23,
2017. (Def.'s Mem. at 16.) Defendant adds that the
statute of limitations did not toll while Plaintiff continued
to apply for reconsideration. (Def.'s Mem. at 15-17.)
Plaintiff responds that he has "met his obligation [at
the motion to dismiss stage] by providing the grounds for
[his] entitlement to relief." (PL's Mem. at 1.)
U.S.C. § 2401(a) provides in relevant part 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."
"Conduct becomes reviewable under the APA upon
'final agency decision.'" Jersey Heights
Neighborhood Ass'n v. Glendening,174F.3d 180, 186
(4th Cir. 1999) (citing 5 U.S.C. § 704). Final agency
decision means "when the agency has completed its
decision-making process, and when the result of that process
is one that will directly affect the parties."
Id. (citing Franklin v. Mass., 505 U.S.
788, 797 (1992)). Pursuant to this legal framework, the
relevant questions become: (1) whether the Board's
initial denial of Plaintiff s ...