Francis Dougherty, Sr. v. U.S. Navy Board for Correction of Naval Records

784 F.2d 499
CourtCourt of Appeals for the Third Circuit
DecidedMarch 26, 1986
Docket85-5120
StatusPublished
Cited by32 cases

This text of 784 F.2d 499 (Francis Dougherty, Sr. v. U.S. Navy Board for Correction of Naval Records) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Francis Dougherty, Sr. v. U.S. Navy Board for Correction of Naval Records, 784 F.2d 499 (3d Cir. 1986).

Opinions

OPINION OF THE COURT

VAN DUSEN, Senior Circuit Judge.

Plaintiff, Francis Dougherty, Sr., brought this action in the United States District Court for the District of New Jersey challenging a determination of defendant, United States Navy Board for Correction of Naval Records (“BCNR”). In light of a recent decision by the United States Court of Appeals for the Fifth Circuit, which was not available to the district court at the time of its decision,1 we will vacate the December 10, 1984, district court order, which dismissed the complaint “for failure to satisfy the applicable statute of limitations, 28 U.S.C. § 2401,” and will [500]*500remand the case to that court for further consideration in light of this opinion.2

The district court granted the BCNR’s motion to dismiss the complaint for failure to satisfy the applicable statute of limitations. For the reasons set forth below, we hold that the statute of limitations did not begin to run until the BCNR’s decision in 1984.

I.

Dougherty enlisted in the United States Navy in January 1957. Two months later, after developing apparent stress problems, he received a general discharge on the grounds of “unsuitability.” Upon application to the BCNR in 1982, Dougherty’s records were changed to indicate that he had received an honorable discharge in 1957. In 1983, the Veterans Administration (“VA”) denied an application by Dougherty for disability benefits. The VA found that his disabling psychiatric disorder was not service-connected.

On March 28, 1983, Dougherty again sought a change in his records from the BCNR to reflect a discharge for a nervous disorder contracted during his two months of service in the Navy in 1957. The BCNR referred the case to the Navy Central Physical Evaluation Board (“CPEB”), which found Dougherty had no grounds for a medical discharge or retirement benefits based on medical disability. The BCNR then denied Dougherty’s application.

On December 1, 1983, Dougherty filed a complaint pro se in the district court, challenging the action of the BCNR as arbitrary and capricious. Upon the district court’s discovery that the BCNR had not considered the complete record, the BCNR agreed to reconsider Dougherty’s case. On June 21, 1984, the BCNR again denied Dougherty’s application based on new findings of the CPEB. The district court dismissed the action, reasoning that the applicable six-year statute of limitations, 28 U.S.C. § 2401 (1978),3 had expired in 1963, six years after plaintiff’s 1957 discharge.

II.

The BCNR may correct a military record if the request is filed within three years of the time when the claimant discovers the error or October 26, 1961, whichever is later. 10 U.S.C. § 1552(b) (1983).4 It may only make such a correction after such period, if the BCNR finds the correction to be in the interest of justice. Id. In the instant case, there is no claim that Dougherty was unaware of the status of his discharge. Consequently, the three-year period expired three years after Dougherty’s 1957 discharge and the statute of limitations expired on October 26, 1961. The review by the BCNR was premised on its waiving the statute in the interest of justice.5 Dougherty seeks review of this action of the BCNR.

Judicial review of action by an agency such as the BCNR is provided for in the Administrative Procedure Act, 5 U.S.C. § 702 (1977).6 The action is governed by [501]*501the six-year statute of limitations codified at 28 U.S.C. § 2401 (1978).7 If the six-year statute of limitations runs from the date of discharge, then review by the district court would be precluded. If the statute of limitations does not begin to run until the BCNR acts, then this suit is timely. We must decide when the statute of limitations begins to run in a case challenging the action of the BCNR as arbitrary and capricious where monetary damages are not at issue.

III.

After careful consideration of the case history and relevant cases in federal courts, we hold that the six-year statute of limitations for the instant action did not begin to run until the BCNR issued its final decision. Consequently, the instant action is not time-barred.

In applying the statute of limitations, we must determine what action the district court is being asked to review. Is it reviewing the 1957 discharge or the 1984 action of the BCNR refusing to correct the records relating to that discharge? The standard of review of the district court is instructive. The district court is to set aside the BCNR action if it finds it to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”8 5 U.S.C. § 706 (1977). The review is generally limited to consideration of the administrative record. 5 U.S.C. § 706 (1977). See Florida Power & Light Co. v. Lorion, — U.S. —, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985); Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). The fact that the district court must base its decision on an administrative record compiled in 1984 relating to a proceeding held in 1984 suggests that the statute of limitations should not begin running based on any other event. While the basic factual issue centers around something which occurred many years earlier, the wrong asserted in the district court is not the discharge itself but its treatment by the BCNR. Consequently, the case involves not a succession of witnesses who will seek to remember what happened nearly thirty years ago but, rather, an analysis of an administrative record to determine if a particular result is an arbitrary and capricious conclusion.

The Supreme Court stated in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 861 (1967), that “a survey of our cases shows that judicial review of a final agency action by an aggrieved person will not be cut off unless there is a persuasive reason to believe that such was the purpose of Congress.” Id. at 140, 87 S.Ct. at 1511. In the instant case, the BCNR decided to waive the statute of limitations and address the merits of Dougherty’s claim. Having done so, given the facts and exigencies of this case, we see no persuasive reason to cut off judicial review of the 1984 administrative action of the BCNR. See Geyen v. Marsh, 775 F.2d 1303 (5th Cir.1985).

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Bluebook (online)
784 F.2d 499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/francis-dougherty-sr-v-us-navy-board-for-correction-of-naval-records-ca3-1986.