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MILITARY LAW — Administrative Law — Limitations of Actions No. 02-1852; Third Circuit; opinion by Becker, U.S.C.J.; filed February 10, 2003. Before Judges Becker, McKee and Hill, Circuit Judge, sitting by designation. On appeal from the District of New Jersey. [Sat below: Judge Thompson.] DDS No. 21-8-2810 I. Plaintiff Johnnie E. Green re-enlisted in the army and served from December 1949 to July 1950. On July 7, 1950, Green was reported absent without official leave (AWOL) as of the previous day. He returned to duty on July 8. As a result of his going AWOL, the Army dropped Green in rank and, on July 31, 1950, gave him an undesirable discharge. Thirty-one years later, in 1981, Green applied to the Army Discharge Review Board (ADRB) for review of his discharge and requested that his “undesirable discharge” be upgraded to “honorable.” The review board rejected Green’s application and he then applied to the Army Board for Correction of Military Records (ABCMR) for review of this decision. In 1982, the ABCMR upheld the ADRB’s decision. Green filed petitions for reconsideration of the ABCMR’s ruling in 1983 and 1986 and was rejected on both occasions for a failure to submit new evidence. In May 1999, Green again filed a petition with the ABCMR to re-open his discharge review case. This application for reconsideration was based on the administrative record and an affidavit in which Green, who is African-American, asserted that his discharge had been to some extent racially motivated. The ABCMR considered the new evidence, appeared to re-open the proceedings, and denied Green’s application on the merits. Green contends that he raised the issue of racism for the first time in his 1999 application for reconsideration. The army secretary, Thomas E. White, disagrees, and asserts that Green had raised the racism issue in his 1982 petition to the ABMCR. Green next filed suit in the District Court for the District of New Jersey, asserting that the ABCMR had acted “arbitrarily and capriciously” in denying his claim. He brought this claim under, inter alia, 5 U.S.C. � 701 (the Administrative Procedure Act), 28 U.S.C. � 1651 (the All Writs Act), and 28 U.S.C. � 1346 (the Tucker Act). The District Court denied Green’s motion and granted the Army’s motion to dismiss. The court reasoned that the six-year statute of limitations for civil actions against the government mandated by 28 U.S.C. � 2401(a) had begun to run in 1982 when the ABCMR first rejected Green’s application, and that therefore Green’s action was time-barred. II. Title 28 U.S.C. � 2401(a) provides for a six-year statute of limitations on civil actions against the United States, measured from the date that “the right of action first accrues.” Under Dougherty v. U.S. Navy Board for Correction of Naval Records, 784 F.2d 499, 501 (3d Cir. 1986), the claim first accrues when the ABCMR “issue[s] its final decision,” not when the service person is discharged. Green’s claim accrued in 2000, when the board re-opened his case and rejected his request for reconsideration on the merits. The ADRB should not have taken Green’s case in 1981. Title 10 U.S.C. � 1553(a) states that the ADRB may only entertain a claim if the “motion or request for review [was] made within 15 years after the date of the discharge or dismissal.” Green made his request for review 31 years after his discharge, and therefore the ADRB was not empowered to hear his complaint. It does not follow, however, that the ABCMR’s decision was a nullity. ABCMR had the authority to conduct a de novo review of Green’s original discharge, regardless of the propriety of the ADRB decision. Nothing in the regulations governing the ABCMR states that the board may only act in review of ADRB decisions. Indeed, in this case the ABCMR decision specifically noted that only “some of the information” in the record the board considered “came from the applicant’s assertions in connection with his previous application to the ADRB.” Green also urges that even if the ABCMR’s first decision was not a nullity, the final agency action in this case occurred in 2000, when the ABCMR re-opened Green’s case and denied his petition for reconsideration, not in 1982. This court has yet to issue a ruling on the proper impact of a petition to the ABCMR for reconsideration on the � 2401(a) statute of limitations. The existing cases seem to offer three ways to approach this problem: (1) any time a plaintiff files an application for reconsideration with the ABCMR, the statute is tolled and a new six-year period begins to run; (2) an application for reconsideration tolls the statute and re-starts the six-year time limit only if it is filed within six years of the most recent administrative decision in the case; or (3) the statute begins to run with the initial board decision in the case and is unaffected by petitions for reconsideration. Clearly, the crucial question here is the effect of motions for reconsideration on the � 2401(a) six-year time-bar. In Interstate Commerce Commission v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1986), the Court determined that “where a party petitions an agency for reconsideration on the ground of ‘material error,’ i.e., on the same record that was before the agency when it rendered its original decision, ‘an order which merely denies rehearing of . . . [the prior] order is not itself reviewable.’” Id. at 280. The Court’s decision made clear that this nonreviewability was a “tradition that 5 U.S.C. � 701(a)(2) was meant to preserve.” Id. at 282. Held: Applying this logic to the case at bar, any petition for rehearing to the ABCMR that does not include “new evidence” or reflect some “changed circumstances” does not re-start the six-year statute of limitations. If, however, the ABCMR re-opens a proceeding and rules on a petition that does contain such new evidence, such a ruling will constitute a final agency action and will re-start the six-year time limit. This will be the case even if the petition is filed more than six years after the original ABCMR decision in a petitioner’s case. (The discussion here deals only with the question of the circumstances under which a petition for reconsideration re-starts the six-year time-bar period and not with whether or when such a petition will temporarily toll this period.) This approach has two distinct advantages. First, it prevents plaintiffs from circumventing the spirit of � 2401(a) by “plac[ing] before the court precisely the same substance that could have been brought there by appeal from the original order.” Id. at 279. It is for this reason that the court rejects the approach that a rejection of a petition for reconsideration can serve as the final agency action and restart the � 2401(a) statute-of-limitations period regardless of how long after the original petition was filed. This would pave the way for a regime in which a plaintiff can indefinitely toll the statute of limitations, and in this way would swallow the limits established by 28 U.S.C. � 2401(a). Second, it guarantees that a plaintiff who can allege some new evidence or changed circumstances will not “have been deprived of all opportunity for judicial consideration . . . of facts which, through no fault of his own, the original proceeding did not contain.” Id. It appears from the ABCMR’s October 19, 2000, memorandum of consideration that the board treated Green’s petition as if it contained new evidence and re-opened the proceedings in Green’s case. Thus, ABCMR’s October 19, 2000, decision in Green’s case was a final administrative determination that restarted the six-year time period of � 2401(a). Therefore, the District Court erred in holding that Green’s suit was time-barred. Reversed and remanded. — Digested by Steven P. Bann [The slip opinion is 12 pages long.] For appellant — Thomas J. Reed (Widener University School of Law, Delaware Volunteer Legal Services, Inc., Veterans Assistance Program). For appellee — Major Scott E. Reid and Joseph Fetterman (Office of Judge Advocate, Department of the Army, Arlington, Va.) and Christopher J. Christie, U.S. Attorney, and Dorothy Donnelly, Assistant U.S. Attorney.

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