Johnnie E. Green v. HON. THOMAS E. WHITE, Secretary of the Army (Pursuant to F.R.A.P. 43(c)) On Appeal…

PRECEDENTIAL
Filed February 10, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1852
JOHNNIE E. GREEN, Appellant
v.
*HON. THOMAS E. WHITE,
Secretary of the Army
*(Pursuant to F.R.A.P. 43(c))
On Appeal From the United States District Court
For the District of New Jersey
(D.C. No. 01-cv-02180)
District Judge: Honorable Anne E. Thompson
Argued: November 5, 2002
Before: BECKER, Chief Judge, McKEE and HILL,*
Circuit Judges.
(Filed: February 10, 2003)
_________________________________________________________________
* The Honorable James C. Hill, United States Circuit Judge for the
Eleventh Circuit Court of Appeals, sitting by designation.
THOMAS J. REED (Argued)
Widener University School of Law
Delaware Volunteer Legal
Services, Inc.
Veterans Assistance Program
4601 Concord Pike
P.O. Box 7474
Wilmington, DE 19803-7474
Counsel for Appellant
MAJOR SCOTT E. REID (Argued)
JOSEPH FETTERMAN
Staff Judge Advocate General
Office of Judge Advocate
Department of the Army
901 North Stuart Street
Suite 400
Arlington, VA 22203-1837
CHRISTOPHER J. CHRISTIE
United States Attorney
DOROTHY DONNELLY
Assistant United States Attorney
United State’s Attorney’s Office

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402 East State Street, Room 502
Trenton, NJ 08608
Counsel for Appellee
OPINION OF THE COURT
BECKER, Chief Judge:
This is an action by plaintiff Johnnie E. Green against
Army Secretary Thomas E. White ("the Secretary") seeking
correction of Green’s military records. Because the District
Court erred in finding that Green’s suit is time-barred, we
reverse the order of the District Court dismissing the suit
and remand for further proceedings.
I.
The case stems from Green’s 1950 discharge from the
United States Army. Green entered Army service in January
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1949 and was honorably discharged in December of the
same year. He re-enlisted 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 8th. As a result of his going
AWOL, the Army dropped Green in rank and, on July 31,
1950, gave him an undesirable discharge.
Green asserts that his discharge "hearing" was
perfunctory. He met with his First Sergeant and a Second
Lieutenant. The Sergeant told Green he had "too many
delinquent reports," and asked him how he pleaded. Green
responded that he pleaded "guilty with an explanation," and
he was then told to wait outside for a decision. When Green
was called back in ten minutes later, the Sergeant told him
that he had "pleaded guilty to being a delinquent person.
And it is the decision of this Board that you be discharged,
as an Undesirable Person." The Army duly gave Green a
"blue" discharge, which is a less-than-honorable discharge
that deprives Green of most veterans’ rights.
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

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is African-American, asserted that his discharge had been
to some extent racially motivated. In his affidavit Green
stated that he "believe[d] that my First Sergeant singled me
out for special treatment on account of my race. I had
never been punished for any military offense up to 31 July
1950, and had only one day’s time lost due to my AWOL."
Initially, the ABCMR refused to re-open Green’s case on the
grounds that "no new evidence had been presented that the
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ABCMR had not previously considered" and that his
records could not be found because they likely had been
destroyed in a 1973 fire at the National Military Personnel
Records Center. At this point, Green appealed to the
Secretary, who sent Green’s case back to the ABCMR for
consideration. The ABCMR then decided to "consider[ ] 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
Secretary disagrees, and asserts that Green had raised the
racism issue in his 1982 petition to the ABMCR. It appears
that the Secretary has the better of this argument as
Green’s own 1999 ABMCR petition stated that "[h]e based
his first [1982] petition on issues relating to racial
discrimination." Still, as discussed below, in its October 19,
2000 decision, the ABCMR appeared to consider Green’s
affidavit and other supporting materials as "new evidence."
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. S701 (the
Administrative Procedure Act), 28 U.S.C. S1651 (the All
Writs Act), and 28 U.S.C. S1346 (the Tucker Act). The Army
moved to dismiss the complaint under Federal Rule of Civil
Procedure 12(b)(6) and Green moved for summary judgment
under Federal Rule of Civil Procedure 56. 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. S 2401(a) had begun to
run in 1982 when the ABCMR first rejected Green’s
application, and that therefore Green’s action was time-
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barred.1 Green appealed.2
II.
28 U.S.C. S 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 this court’s decision in Dougherty v. U.S.
Navy Board for Correction of Naval Records, 784 F.2d 499,

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501 (3rd Cir. 1986), in an action for correction of military
records, the claim first accrues when the BCMR "issue[s] its
final decision," not when the service person is discharged.
The central question here is when did Green’s claim accrue,
or, put another way, what counts as a final administrative
determination in this context? The Secretary asserts that
Green’s claim accrued in 1982 when the BCMR first
rejected Green’s application. Green contends that it accrued
in 2000 when the Board re-opened his case and rejected
his request for reconsideration on the merits. We agree with
Green.
Green raises two arguments in his attempt to get past
the S 2401(a) statute of limitations. First, he posits that
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1. This reasoning applies both to Green’s Administrative Procedures Act
and Tucker Act claims. Green argues that his claim under 28 USC
S1651 is not limited by the six-year statute of limitations. Green
requested that the District Court issue a writ "in the nature of a writ of
coram nobis, directing the Secretary of the Army to change" Green’s
discharge status. Fed. R. Civ. P. 60(b) abolishes the writ of coram nobis
in civil cases, and so we consider Green’s claim under Fed. R. Civ. P.
60(b) instead. 5A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure S 2867 at 395 (2d ed. 1995). Green appears to be
asking us to apply 60(b)(6), which allows a court to grant relief from
judgment for "any other reason justifying relief from the operation of the
judgment." We have held that the remedy provided by rule 60(b)(6) is
"extraordinary, and special circumstances must justify granting relief
under it." Page v. Schweiker, 786 F.2d 150, 158 (3rd Cir. 1986). We do
not believe that such "extraordinary and special circumstances" exist in
this case and so we reject Green’s claim under FRCP 60(b)(6).
2. The District Court had jurisdiction under 28 USC S1331 and this
court has jurisdiction under 28 USC S1291. We exercise plenary review
over a district court’s dismissal for failure to state a claim. See Ditri v.
Coldwell Banker Residential Affiliates, 954 F.2d 869, 871 (3d Cir. 1992).
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because the ADRB improperly heard Green’s petition in
1981, the ABCMR’s 1982 decision was a "nullity." We agree
that the ADRB should not have taken Green’s case in 1981.
10 U.S.C. S 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. Green’s
argument is that the ABCMR cannot review a decision on a
claim that should never have been heard in the first place.
This, however, ignores the fact that the ABCMR’s function
is not limited to review of ADRB decisions. Rather, the
ABCMR had the authority to conduct a de novo review of
Green’s original discharge, regardless of the propriety of the
ADRB decision.3 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

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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." Because the ABCMR had the authority to act
on Green’s case despite the fact that the ADRB’s 1981
decision was improper, the ABCMR’s 1982 decision was not
a nullity.
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
S 2401(a) statute of limitations. Among other courts, a "split
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3. While 10 U.S.C. S 1552(b) states that the ABCMR may only correct a
military record if the claimant "files a request for the correction within
three years after he discovers the error or injustice," unlike the ADRB’s
time-bar, the ABCMR "may excuse a failure to file within three years
after discovery if it finds it to be in the interest of justice." Therefore, the
ABCMR was empowered to entertain Green’s petition in 1999 despite the
fact that it was filed eighteen years after the ADRB decision and forty-
nine years after Green’s discharge.
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of authority" has developed. Nihiser v. White , 211 F. Supp.
2d 125, 128-29 (D.D.C 2002).
At least one court seems to have left open the possibility
that a rejection of a petition for reconsideration can serve
as the final agency action and re-start the S 2401(a) statute
of limitations period regardless of how long after the
original petition it was filed. See Smalls v. United States, 87
F. Supp. 2d 1055 (D. Haw. 2000).4 Another approach to the
problem was adopted in Lewis v. Secretary of the Navy,
1990 WL 454624 (D.D.C. 1990), in which the District Court
held that the "final administrative determination" in this
context -- and the moment when the claim accrues-- is
the BCMR’s action on a claimant’s motion for
reconsideration, as long as that motion is filed within 6
years of the most recent application to the BCMR. Under
this framework, it appears possible that a claimant could
repeatedly toll the statute of limitations by submitting a
series of motions for reconsideration.
A third and final option is presented in Soble v. Army
Board of Correction of Military Records, 151 F.3d 1033,
1998 U.S. App. LEXIS 17790 (7th Cir. 1998), in which the
Court held that the S 2401(a) six-year time limit begins to
run with the first ABCMR decision and is unaffected by
subsequent motions for reconsideration. In that case, Soble
applied to the ABCMR in August 1975 seeking a retroactive
promotion to First Lieutenant. His request was denied in
March 1977 because the Board found that Soble had
submitted insufficient evidence to show that there had been
a material error or injustice in the Army’s decision not to

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promote him. Soble filed a second application with the
Board in December 1978, and included what he asserted
was a piece of new evidence. The BCMR treated the
application as a request for reconsideration and denied it.
Soble applied again in August 1981 and April 1994 and
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4. This decision was appealed to the Ninth Circuit Court of Appeals,
which remanded the case for clarification of whether the district court
"exercised jurisdiction under 28 U.S.C. S 1331 and the waiver of
sovereign immunity in S 702 of the Administrative Procedure Act, or
under the Little Tucker Act, 28 U.S.C. S 1346 (a)(2), or under both."
Smalls v. England, 50 Fed. Appx. 379 (9th Cir. 2002).
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was denied both times. He filed a claim in federal court in
September 1997, asserting that he should have been
promoted. The district court held that Soble’s claim was
time-barred and it dismissed the case. The Seventh Circuit
upheld the district court’s decision, ruling that Soble’s
claim that the ABCMR had erred in denying his request for
a promotion "accrued[ ] at the time of the Board’s decision,"
by which the court meant the Board’s first decision. Id. at
5.
The existing cases therefore 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 S 2401(a) six-year time bar. In
Interstate Commerce Commission v. Brotherhood of
Locomotive Engineers, 482 U.S. 270 (1986), the Supreme
Court held that the language of 5 U.S.C. S 704, which reads
"Except as otherwise expressly required by statute, agency
action otherwise final is final for the purposes of this
section whether or not there has been presented or
determined an application for . . . any form of
reconsiderations . . . ," has "long been construed by this
and other courts merely to relieve parties from the
requirement of petitioning for rehearing before seeking
judicial review (unless, of course, specifically required to do
so by statute), but not to prevent petitions for
reconsideration that are actually filed from rendering the
orders under reconsideration nonfinal." Id. at 284-85
(citations omitted). In the same opinion, the Court also
drew a crucial distinction between petitions for
reconsideration which merely allege "material error" and
those which allege "new evidence" or "changed
circumstances." The Court observed that

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. . . all of our cases entertaining review of a refusal to
reopen appear to have involved petitions alleging"new
evidence" or "changed circumstances" that rendered
the agency’s original order inappropriate. We know of
no case in which we have reviewed the denial of a
petition to reopen based upon no more than "material
error" in the original agency decision. There is good
reason for distinguishing between the two. If review of
denial to reopen for new evidence or changed
circumstances is unavailable, the petitioner will have
been deprived of all opportunity for judicial
consideration . . . of facts which, through no fault of
his own, the original proceeding did not contain. By
contrast, where no new data but only "material error"
has been put forward as the basis for reopening, an
appeal places before the courts precisely the same
substance that could have been brought there by
appeal from the original order.
Id. at 278-79 (citations omitted).
In sum, 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 (quoting Microwave
Communications Inc. v. FCC, 169 U.S. App D.C. 154, 156
(1974)).5 The Court’s decision made clear that this non-
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5. We recognize that Brotherhood of Locomotive Engineers is factually
distinct from the case at bar in a number of respects. First, that case
involved a petition to the Interstate Commerce Commission, judicial
review of which is governed by the Hobbs Act, 28 U.S.C. S 2341 et seq.
Second, the question in Brotherhood of Locomotive Engineers was not
timeliness under S 2401(a), but rather whether the ICC’s refusal to re-
open a proceeding was reviewable. Third, that case involved a formal
agency adjudication, while the case at bar involves an informal
adjudication. We believe, however, that these contextual differences do
not reduce the force or applicability of the Supreme Court’s reasoning to
the case before us.
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reviewability was a "tradition that 5 U.S.C.S 701(a)(2) was
meant to preserve."6 Id. at 282.
Applying this logic to the case at bar, we conclude that
any petition for rehearing to the ABCMR which 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 upon 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

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case even if the petition is filed more than six years after
the original ABCMR decision in a petitioner’s case. 7 This
approach has two distinct advantages. First, it prevents
plaintiffs from circumventing the spirit of S 2401(a) by
"plac[ing] before the court precisely the same substance
that could have been brought there by appeal from the
original order." Brotherhood of Locomotive Engineers, 482
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6. The Court observed that it is the "Administrative Procedure Act (APA)
that codifies the nature and attributes of judicial review, including the
traditional principle of its unavailability ‘to the extent that . . . agency
action is committed to agency discretion by law.’ " Brotherhood of
Locomotive Engineers, 482 U.S. at 282 (quoting 5 U.S.C. S 701(a) (2)).
7. We note that our 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. While the Supreme Court has held that
"the filing of a timely petition for agency reconsideration [ ] extends the
time for appealing from the original decision," Brotherhood of Locomotive
Engineers, 482 U.S. at 280, it is not clear what would constitute a
"timely" petition under the ABCMR regulations. The regulations in effect
when Green filed his petition for reconsideration stated in the section
entitled "Reconsideration" that "After final adjudication, further
consideration will be granted only upon presentation by the applicant of
newly discovered relevant evidence not previously considered by the
Board and then only upon recommendation of the Board and approval
by the Secretary of the Army." At all events, whatever tolling may have
occurred as a result of the filing of timely petitions for reconsideration in
this case would not change the outcome because theS 2401(a) six-year
time bar period was re-started when the ABCMR re-opened Green’s case
in 2000. We therefore need not decide if Green’s earlier petitions for
reconsideration in 1983 and 1986 temporarily tolled the six-year time
period during their pendency.
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U.S. at 279; see also Nihiser v. White, 211 F. Supp. 125,
129 (D.D.C. 2002). It is for this reason that we reject the
Smalls approach, because it 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. S 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.
This conclusion is buttressed by the Court of Appeals for
the District of Columbia’s decision in Sendra Corporation v.
Magaw, 111 F.3d 162 (D.C. Cir. 1997). That case involved
repeated applications to the Bureau of Alcohol, Tobacco,
and Firearms to register certain weapons parts as"machine
guns." After echoing the Supreme Court’s conclusion that
agency decisions on requests for reconsideration alleging
only material error are not reviewable, the Court concluded
that "[i]f for any reason the agency reopens a matter and,

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after reconsideration, issues a new and final order, that
order is reviewable on its merits. . . ." Id. at 167. The Court
cautioned, however, that even if "the agency discusses the
merits at length when it denies a request for
reconsideration [that] does not necessarily mean the agency
has reopened the proceedings." Id. Indeed, "[o]nly ‘when the
agency has clearly stated or otherwise demonstrated,’ that
it has reopened the proceeding will the resulting agency
decision be considered a new final order subject to judicial
review under the usual standards." Id. (citations omitted).
We note that our decision here is consistent with both
the Court of Appeals for the Seventh Circuit’s holding in
Soble and with the decision of the District Court for the
District of Columbia in Lewis. In Soble , the plaintiff filed
four requests for reconsideration of the original ABCMR
decision. None of these requests alleged any new evidence
or changed circumstances, however, so the Court properly
found that the final administrative decision in the case was
the initial ABCMR ruling, not the Board’s rejection of
Soble’s petitions for reconsideration. In Lewis , the BCNR
rejected the plaintiff ’s initial petition on April 3, 1984. The
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plaintiff filed for reconsideration and the BCNR re-opened
the case on November 24, 1987. As a result of its
reconsideration, the Board altered its original holding in the
case. The fact that the Board re-opened the case
(presumably, although it is not clear from the facts, on the
basis of some new evidence) re-started the six-year time
period and therefore the district court was able to hear
Lewis’ case despite the fact that he filed suit on May 18,
1989, more than six years after the initial Board decision in
his case.
In the case at bar, 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. The
Memorandum notes that initially the "staff of the ABCMR
reviewed" the material Green submitted and "determined
that no new evidence had been presented that the ABCMR
had not previously considered." The Memorandum goes on
to state, however, that after repeated entreaties on the part
of Green and his counsel "requesting that the ABCMR
reconsider the 4 May 1999 application and new evidence
attached," the "Board hereby considers the new evidence as
follows in these proceedings." The Memorandum then goes
on to reject Green’s application on the merits. This decision
seems distinctly different from one in which the Board
rejects a petition for reconsideration out-of-hand for a
failure to present new evidence. Rather, the Board appears
to have re-opened the proceedings and considered Green’s
new evidence.
On the basis of the rule announced above, the ABCMR’s
October 19, 2000 decision in Green’s case was a final
administrative determination which re-started the six-year

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time period of S 2401(a). Therefore, the District Court erred
in holding that Green’s suit was time-barred. The judgment
of the District Court will be reversed and the case
remanded for further proceedings.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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