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Shurland v. Air Force Board For Correction of Military Records

United States District Court, E.D. Virginia, Richmond Division

September 24, 2019

DAVID P. SHURLAND, Plaintiff,
v.
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS, Defendant.

          REPORT AND RECOMMENDATION

          DAVID J. NOVAK UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.[1] 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 No. 10).

         For the 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) be GRANTED.

         I. BACKGROUND

         In 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 facts.

         A. Plaintiffs Request for Correction of His Military Records.

         Plaintiff 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.[2] (AR at 56-57.)

         Nearly 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.)

         On June 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.)

         Plaintiff 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 17.)

         Plaintiff 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.)

         Plaintiff 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.)

         B. Plaintiffs Complaint.

         Following 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.

         C. Defendant's Motions.

         In 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.)

         Plaintiff 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.

         II. RULE 12(b)(6) MOTION TO DISMISS

         Because 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.

         A. Standard of Review.

         A 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.

         Relevant 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).

         B. Analysis.

         Defendant 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.)

         28 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 ...


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