The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
In his pro se amended complaint (Dkt. No. 28), plaintiff asks the Court to compel defendant, the Board for Correction of Naval Records ("BCNR"), "to upgrade/correct plaintiff's 1986 military discharge." Defendant moves (Dkt. No. 29) to dismiss under Fed. R. Civ. P. 12(b)(6) on the ground that the action is barred by the statute of limitations. As set forth below, the Court denies the motion.
Plaintiff, currently an inmate in the custody of the New York State Department of Correctional Services, asks for mandamus and an injunction compelling defendant to "correct and upgrade [his] military records and change his discharge from other than honorable conditions to honorable conditions." Plaintiff enlisted in the United States Navy on August 27, 1984. On April 1, 1986, he was discharged "Under Other than Honorable Conditions." On November 27, 2002, plaintiff applied to defendant for correction of the military record to have his discharge upgraded to honorable. The BCNR denied the application by letter dated June 2, 2003, summarizing
plaintiff's naval record and the documents he submitted in support of his application and addressing mitigating factors. Defendant advised plaintiff: "You are entitled to have the Board reconsider its decision upon submission of new and material evidence or other matter not previously considered by the Board."
Plaintiff made a second application in 2006, which was rejected by letter dated May 2, 2006 from the BCNR's Executive Director, W. Dean Pfeiffer, stating:
Your current application has been carefully examined. Although at least some of the evidence you have submitted is new, it is not material. In other words, even if this information was presented to the Board, the decision would inevitably be the same. Accordingly, reconsideration is not appropriate at this time.
Plaintiff's third application, made January 13, 2010, was rejected in an identically-worded letter from W. Dean Pfeiffer, dated March 2, 2010. Plaintiff commenced the instant action on August 12, 2010. Defendant moves to dismiss the amended complaint on the ground that judicial review of the 2003 decision is time-barred.
Judicial review of an action by a federal agency such as defendant is
authorized by the
Administrative Procedures Act, 5 U.S.C. § 706(2)(A).*fn1
A six-year statute of limitations applies. See 28 U.S.C. §
2401(a). A claim for judicial review of a BCNR decision accrues at the
time of the decision, see Blassingame v.
Secretary of Navy, 811 F.2d
65, 71 (2d Cir. 1987); thus, plaintiff's claim for direct judicial
review of the initial 2003 decision is time-barred.
Plaintiff's pro se amended complaint may, however, reasonably be read as also seeking judicial review of the Executive Director's May 2006 and March 2010 decisions denying
reconsideration. The Executive Director held that "at least some of the evidence [plaintiff] ... submitted is new," but denied reconsideration on the ground that the new evidence was not material and would not warrant a different outcome. Where an administrative body denies an application to reconsider based on new evidence, the lawfulness of the denial itself is subject to judicial review. See Interstate Commerce Comm'n v. Brotherhood of Locomotive Eng'rs ("ICC"), 482 U.S. 270, 279 (1987) (discussing judicial review of Interstate Commerce Commission decision). The ICC court observed that a contrary rule would deprive the applicant of "all opportunity for judicial consideration ... of facts which, through no fault of his own, the original proceeding did not contain." Id. The Third Circuit applied the ICC rationale in holding that an Army veteran's claim for judicial review accrued on the date the Army Board for Correction of Military Records ("ABCMR") denied his application for reconsideration based on new evidence, not on the date of the underlying ABCMR decision denying his request to correct his record. See Green v. White, 319 F.3d 560, 566-68 (3d Cir. 2003); but see Soble v. Army Bd. of Correction, 151 F.3d 1033 (Table), 1998 WL 516770, *1-2 (7th Cir. Jul. 30, 1998). The Fifth Circuit, distinguishing Green, held that the limitations period was not "restarted" on the date of the second decision of the Air Force Board for Correction of Military Records refusing to alter the veteran's record, where the second application "does not show changed circumstances, nor any additional information that was not available when [plaintiff] first filed." Lee v. Wynne, 384 Fed.Appx. 431, 433 (5th Cir. July 7, 2010). See also Sendra Corp. v. Magaw, 111 F.3d 162, 166-67 (D.C.Cir. 1997) (reviewing a decision of the Bureau of Alcohol, Tobacco and Firearms; stating: "An agency's denial of a petition, or a request, for reconsideration is not itself subject to judicial review if the petition alleges only 'material error' in the agency's original decision.... On the other hand, if an agency denies a petition for reconsideration alleging 'new evidence' or 'changed circumstances,' the agency's denial is reviewable as a final agency action[.]"); Consolidated Fibers, Inc. v. United States, 535 F.Supp.2d 1345, 1351 (CIT 2008) (stating International Trade Commission's denial of a request to reconsider is unreviewable unless the request is based on new evidence, in which case the court has jurisdiction to review the denial for abuse of discretion).
Defendant here contends that the BCNR did not "reopen" administrative review and thus its 2006 and 2010 rulings did not affect the running of the limitations period.*fn2 It is true that the BCNR did not directly revisit its 2003 decision. The BCNR did, however through its Executive Director, make substantive rulings in 2006 and 2010 that the new evidence submitted by plaintiff was not material and would not alter the 2003 decision. It is these limited rulings that are reviewable. Accordingly, plaintiff's claims for judicial review of defendant's denial of his 2006 and 2010 applications accrued on the dates the 2006 and 2010 decisions were issued. The question brought up for review is not whether the underlying 2003 decision was correct, but rather whether the 2006 and 2010 refusals to reconsider in light of the new evidence were arbitrary, capricious, or an abuse of discretion. Judicial review of the 2006 and 2010 decisions is not time-barred. Defendant raises no other issue in support of dismissal. The dismissal motion is denied.
In compliance with its obligation to read plaintiff's pro se pleading liberally and interpret it "to raise the strongest arguments that [it] suggest[s]," see McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999), the Court reads plaintiff's amended complaint as also challenging the reconsideration procedure itself. The statute giving the Secretary of the Navy the authority to promulgate the applicable regulation is 10 U.S.C. § 1552, "Correction of military records: claims incident thereto," which provides in pertinent part:
(a) (1) The Secretary of a military department may correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice. Except as provided in paragraph (2),*fn3 such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department.... (3) Corrections under this section shall be made under procedures established by the Secretary concerned. In the case of the Secretary of a military department, those procedures must be approved by the Secretary of Defense. (Emphasis added.) Pursuant to section 1552(a)(1), the Secretary of the Navy promulgated 32 CFR Part 723, "Board for Correction of Naval Records." The regulation applicable to reconsideration of the BCNR's determinations, 32 CFR 723.9, "Reconsideration," provides in full:
After final adjudication, further consideration will be granted only
upon presentation by the applicant of new and material evidence or
other matter not previously considered by the Board. New evidence is
defined as evidence not previously considered by the Board and not
reasonably available to the applicant at the time of the previous
application. Evidence is material if it is likely to have a
substantial effect on the outcome. All requests for further
consideration will be initially screened by the Executive Director of
the Board to determine whether new and material evidence or other
but not limited to, any factual allegations or arguments why the
relief should be granted) has been submitted by the applicant. If such
evidence or other matter has been submitted, the request shall be
forwarded to the Board for a decision. If no such evidence or other
matter has been submitted, the applicant will be informed that his/her
request was not considered by the Board because it did not contain new
and material evidence or other matter. (Emphasis added.) Thus, the
regulation provides that, on a reconsideration application, the BCNR's
Executive Director -- not the BCNR -- determines not only whether
there is new
evidence, but also whether it is material. No case has directly
addressed the issue of whether the Secretary of the Navy has the power
under section 1552(a)(1) to permit the BCNR's director -- rather than
the BCNR itself -- to determine whether new evidence in a
reconsideration application is "material." A similar reconsideration
regulation promulgated by the Secretary of the Army has, however, been
struck down by a district court on the ground that, in enacting
Congress intended that the ABCMR, and not the ABCMR's staff, be the
only entity authorized to make substantive determinations on
reconsideration requests. See Lipsman v. Secretary of the Army, 335
F.Supp.2d 48, 54 (D.D.C. 2004) (holding that under 10 U.S.C. §
1552(a)(1), "the Secretary [of the Army is] bound to act through the
[ABCMR], not its staff members, when
evaluating the ...