William Havens v, Raymond Edwin Mabus, Jr., Secretary of the Navy Chairman, Board for Corrections of Naval Records

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 18, 2014 Decided July 25, 2014
No. 12-5339
WILLIAM HAVENS,
APPELLANT
v.
RAYMOND EDWIN MABUS, JR., SECRETARY OF THE NAVY;
CHAIRMAN, BOARD FOR CORRECTION OF NAVAL RECORDS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01859)
John B. Wells argued the cause for the appellant.
Michelle J. Seo, Special Assistant United States Attorney,
argued the cause for the appellee. Ronald C. Machen, Jr.,
United States Attorney, and R. Craig Lawrence and Wynne P.
Kelly, Assistant United States Attorneys, were on brief.
Before: HENDERSON and WILKINS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Appellant
William Havens (Havens) is a retired officer of the United
States Navy Reserve (Navy Reserve or Reserve) who seeks a
correction of his military record to reflect that he was retired by
reason of physical disability. Havens served on active duty in
the Navy Reserve for over twenty-six years; he was discharged
and transferred to the Selected Reserve in 1996 after twice
failing to receive a promotion. See 10 U.S.C. § 14506. In
2002, Havens was then discharged from the Selected Reserve
and transferred to the Retired Reserve, having been found “Not
Physically Qualified” to continue service. Over the years,
Havens has challenged the discharges in various arenas,
arguing, inter alia, that he should have been given a physical
disability retirement due to his psoriasis and psoriatic arthritis.
Havens first sought recourse from the Board for Correction of
Naval Records (BCNR), which denied two separate record
correction applications and four reconsideration requests filed
by Havens. He then filed suit in the United States Court of
Federal Claims (Court of Federal Claims, CFC), which suit
that court dismissed as time-barred. Finally, Havens filed the
instant suit in federal district court, challenging his 1996
discharge from active duty and his 2002 retirement from the
Selected Reserve as well as the BCNR decisions denying him a
record correction. The district court dismissed the action,
concluding that it was barred by the earlier CFC dismissal
under the doctrine of res judicata. For the following reasons,
we affirm in part and reverse in part.
I. BACKGROUND
A. Disability Evaluations and the BCNR
Pursuant to 10 U.S.C. § 1216, the Secretary of the Navy
(Secretary) is responsible for “separating or retiring” those
members of the Navy who are unable “to continue [N]aval
service because of physical disability.” Instruction 1850.4D
3
at 10-1, Secretary of the Navy (1998). 1 The Secretary
evaluates the disabilities of Navy members through the Navy’s
Disability Evaluation System (DES). The first phase of the
DES process is typically conducted by a Medical Evaluation
Board (MEB), which is convened if a physician determines
that a Navy member “is unable to perform full military duty or
unlikely to be able to do so within a reasonable period of time.”
Id. at 10-2.
If the MEB determines that further evaluation is required,
it refers the case to the Physical Evaluation Board (PEB). At
the PEB stage, the service member is first evaluated by an
informal PEB. If he is an active-duty service member, the
informal PEB determines whether he is “Fit” or “Unfit” to
continue service.2 Id. at 4-8, 10-2 to 10-3. If the member is
an inactive-duty Navy Reservist, as Havens was post-1996,
however, the informal PEB typically makes a different
determination; to wit, it decides whether he is “Physically
1
Instruction 1850.4D is the instruction issued by the Secretary
governing disability evaluations that was in effect until 2002.
Accordingly, the description of disability evaluations for Navy
members based on Instruction 1850.4D describes the process as it
previously existed. Instruction 1850.4D was cancelled by
Instruction 1850.4E. See Instruction 1850.4E at 2, Secretary of the
Navy (2002). Instruction 1850.4E established a similar process,
making a number of changes not relevant here. See id. at 1-1 to 1-4.
2
“Fit” means that “the member is Fit to continue naval service
based on evidence which establishes that the member is able to
reasonably perform the duties of his or her office, grade, rank or
rating.” Instruction 1850.4D at 1-2. “Unfit” is a “finding that the
member is Unfit to continue naval service based on evidence which
establishes that the member cannot reasonably perform the duties of
his or her office, grade rank or rating.” Id.4
Qualified” or “Not Physically Qualified” 3 to continue
serving.4 Id. at 4-8. The findings of the informal PEB may
be challenged at a formal PEB hearing, during which the
member may “present evidence, testimony, and documents in
support of his or her case.” Id. at 10-3. Using the same
rubric as the informal PEB, the formal PEB makes
recommended findings, which findings become final with the
PEB President’s approval.
Although there appears to be little difference between the
description of an Unfit service member and a Not Physically
Qualified service member, see supra note 3, the consequences
of receiving one determination as opposed to the other are
significant. An Unfit member, whether active or inactive, is
assigned a disability rating between zero and one hundred per
3
Not Physically Qualified is a “disposition applied to a
reservist when he or she is unable to continue service in the Naval or
Marine Corps Reserves because of a non-duty related disease or
injury which precludes the member from performing the duties of his
or her office, grade, rank, or rating in such a manner as to reasonably
fulfill the purpose of his or her reserve employment.” See
Instruction 1850.4D at 2-16. Under Instruction 1850.4D, a Not
Physically Qualified disposition appears to be the same as an Unfit
disposition, compare id. at 1-2, with id. at 2-16, the key difference
being that the Not Physically Qualified service member’s disabling
condition is non duty-related.
4
There are limited circumstances, however, where an
inactive-duty Navy Reservist can receive a Fit/Unfit determination.
For example, “[a] reservist on extended active duty for 30 days or
more who has been released from active duty and now is in an
inactive duty drilling status and requests referral to the PEB for a
condition which the member alleges was incurred or aggravated
while on active duty shall be processed into the DES and the PEB
shall determine and record whether the member is Fit or Unfit.”
Instruction 1850.4D at 1-4.
5
cent by the PEB and, based on the rating and the member’s
length of service, he is entitled to either disability retirement
status and retired pay or a one-time disability severance
payment. 5 A member with a Not Physically Qualified
designation, however, does not receive any benefits and is
simply discharged.
If a service member is dissatisfied with the discharge
designation reflected in his military record, he may file an
application for a record correction with the BCNR.6 Subject
to exceptions inapplicable here, the BCNR issues the Navy’s
final decision on a record correction application, see 32 C.F.R.
§ 723.6(e), and reconsiders its decision only if the applicant
presents “new and material evidence or other matter not
previously considered by the Board,” id. § 723.9.
5
If a member has “at least 20 years of service computed under
[10 U.S.C. § 1208]” or has at least a 30% disability rating (and
satisfies other conditions set out by statute), he is entitled to
disability retirement status and retired pay. 10 U.S.C. § 1201(requirements for disability retirement for “[r]egulars and members
on active duty for more than 30 days”); id. § 1204 (requirements for
disability retirement for “[m]embers on active duty for 30 days or
less or on inactive-duty training”). A member who has served
fewer than twenty years or who has less than a 30% disability rating
is entitled to a one-time disability severance payment only. See
Instruction 1850.4D at 10-2.
6
The Congress authorizes the Secretary to “correct any
military record . . . when [he] considers it necessary to correct an
error or remove an injustice,” 10 U.S.C. § 1552(a)(1); the Secretary
has delegated this function to the BCNR, see 32 C.F.R. §§ 723.2(b),
723.6(e).
6
B. Facts
Havens began active-duty service with the Navy Reserve
on March 22, 1980. According to his amended complaint,
Havens began experiencing medical difficulties while on
active duty in 1995, including “skin problems” on various parts
of his body, “fatigue” and “pain in his feet.” Am. Compl.
¶¶ 7-9, 11, Havens v. Mabus, No. 1:10-cv-01859 (D.D.C. Jan.
5, 2012). In September 1995, Havens was diagnosed with
psoriasis and psoriatic arthritis and was referred to Travis Air
Force Base Hospital in Solano County, California, for
additional testing. While there, Havens claims that he
requested a MEB to determine his eligibility for disability
benefits but neither the Air Force nor the Navy acted on his
request.
In August 1996, Havens was discharged from active duty
pursuant to 10 U.S.C. § 14506 because he had not been
selected for promotion for two consecutive years. Around the
time of his discharge, Havens reported to Treasure Island
Clinic in San Francisco, California, for a “required discharge
physical.” Am. Compl. ¶ 25. Havens’s complaint suggests
that he was again denied a MEB while at the Clinic. See id.
¶ 26 (“Commanding Officer did not want to do a Medical
Board because it could delay [Havens’s] discharge” and
because of “understaff[ing]”). The Clinic found Havens “fit
for discharge” and he was transferred to the Selected Reserve
in September 1996. Id. ¶ 27. Havens continued to be rated
Physically Qualified for service in that Reserve component
following annual physicals in 1997, 1998, 1999 and 2000.7
7
Notwithstanding the Navy’s determination that Havens was
Physically Qualified for service in the Selected Reserve from 1997
to 2000, the Department of Veterans Affairs (VA) evaluated Havens
in September 1997 and assigned him a 40% service-connected
disability rating based on psoriasis (10%), psoriatic arthritis (20%)
7
In November 1999, Havens first applied for a record
correction with the BCNR, requesting a reversal of his 1996
discharge from active duty for twice failing to be promoted.
Although the application was somewhat unclear, it appeared to
claim that the Navy should not have discharged him from
active duty without first convening a MEB. The BCNR
denied his application in June 2000. Havens subsequently
requested reconsideration twice in 2001 and once in 2002 but,
finding no “new and material evidence,” the BCNR denied all
three requests.
Meanwhile, the informal PEB evaluated Havens in 2001,
recommending in July of that year that Havens be deemed “Not
Physically Qualified to Continue Reserve Status.” 8 JA 87.
Havens requested review by a formal PEB, which body
concluded on January 2, 2002, that Havens was Not Physically
Qualified for continued service in the Selected Reserve.
Havens was then discharged from the Selected Reserve and
transferred to the Retired Reserve in March 2002. As was true
of his 1996 active-duty discharge, his 2002 discharge did not
entitle Havens to disability benefits.
and undiagnosed illness (10%). The explanation for this apparent
inconsistency between the Navy’s Physically Qualified finding and
the VA’s 40% disabled finding is that the two entities use different
standards to evaluate disabilities. According to the BCNR, “the VA
assigns disability ratings to conditions it classifies as ‘service
connected’, i.e., incurred in, aggravated by, or traceable to a period
of military service. Unlike the VA, the military departments do not
award ratings based on the mere presence of conditions listed in the
VA Schedule for Rating Disabilities.” Joint Appendix (JA) 88,
Havens v. Mabus, No. 12-5339 (D.C. Cir. Oct. 21, 2013).
8
The record is unclear as to how the process began and whether
a MEB was first convened.
8
Havens again applied to the BCNR in February 2005, this
time challenging only his 2002 discharge from the Selected
Reserve. His application took issue with the PEB’s failure to
assign him a Fit/Unfit determination (rather than the Not
Physically Qualified designation) and claimed that, although
he was an inactive-duty Reservist, he should have been “retired
by reason of physical disability on 1 Mar 2002,” because his
“physical disability was incurred while on active duty over 30
days [and] did not become aggravated or more severe while in
a non-duty status.” JA 63, 65; see supra note 4. The BCNR
treated the 2005 application as a new application but
nonetheless denied it on August 3, 2006. 9 Havens then
requested reconsideration of the 2006 decision, which request
the BCNR denied in April 2007.
C. Court of Federal Claims Suit
In November 2007, Havens brought a Tucker Act action
against the United States in the Court of Federal Claims and
9
In setting out the facts, the district court stated that the BCNR
treated Havens’s February 2005 application as a request for
reconsideration. We disagree. Unlike the earlier reconsideration
denials, the BCNR’s 2006 decision does not mention
“reconsideration” or the “new and material evidence” standard. See
JA 70, 74, 83. Moreover, the 2006 decision manifests that the
BCNR reached the merits of Havens’s application, unlike the earlier
reconsideration denials. See JA 70, 74, 83. Finally, the BCNR had
confirmed previously by letter to Havens that, “[i]f [Havens] were to
submit a request for correction of [his] record to show that [he] were
retired by reason of physical disability on 1 March 2002, . . . it would
be treated as a new application, rather than a request for
reconsideration of a previous application.” Admin. Rec. 107,
Havens v. Mabus, No. 1:10-cv-01859 (D.D.C. Jan. 19, 2011).
9
filed an amended complaint in early 2008. 10 His amended
complaint alleged, inter alia, that he “was improperly released
from active duty in 1996 despite being medically unfit for
release,” Ct. of Fed. Cl. Am. Compl. ¶ 85, Havens v. United
States, No. 07-780 C (Fed. Cl. Mar. 13, 2008), and that the
United States, acting through the Navy and the BCNR,
improperly deprived him of “monetary benefits including pay,
allowances and disability retired pay” by (1) “failing to
convene a medical board in 1996,” (2) finding him Not
Physically Qualified instead of Unfit in 2002 and (3) denying
his multiple requests for a record correction, id. ¶¶ 86-90.
Havens asked the court to “restore [him] to active duty with all
pay and benefit[s] retroactive to September 1, 1996” and to
order the Navy to evaluate him through the DES. Id. ¶ 93. In
the alternative, Havens requested that the court itself modify
the 2002 PEB decision––thereby entitling him to benefits or
separation pay––or remand to the BCNR for it to determine
whether he should receive benefits or separation pay. See id.
The United States moved to dismiss the suit pursuant to
Rule 12(b)(1), arguing that Havens’s complaint was untimely
under the Tucker Act’s jurisdictional, six-year statute of
limitations. See 28 U.S.C. § 2501; Martinez v. United States,
333 F.3d 1295, 1316 (Fed. Cir. 2003) (en banc) (Tucker Act
statute of limitations “is jurisdictional in nature”). The Court
of Federal Claims agreed with the United States and dismissed
Havens’s claims as time-barred. The Federal Circuit affirmed
without opinion. See Havens v. United States, 330 F. App’x
920 (Fed. Cir. 2009), cert. denied, 559 U.S. 992 (2010).
10
The Tucker Act gives the Court of Federal Claims exclusive
jurisdiction over non-tort suits against the United States seeking
more than $10,000 in damages. See 28 U.S.C. § 1491(a)(1); id.§ 1346(a)(2).
10
D. District Court Suit
On November 1, 2010, Havens filed this suit against the
Secretary in the district court for the District of Columbia.
Havens’s amended complaint alleged, inter alia, that he “was
improperly released from active duty in 1996 despite being
medically unfit for release,” Am. Compl. ¶ 95, that the PEB
incorrectly evaluated him under the Physically Qualified/Not
Physically Qualified standard (instead of the Fit/Unfit
standard), see id. ¶ 81, and that the BCNR violated the
Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq.,
and the Due Process Clause of the Fifth Amendment to the
Constitution by denying Havens’s record correction
applications, see Am. Compl. ¶¶ 98-103. Notably, the
amended complaint disclaimed Havens’s right to
“pre-judgment retroactive monetary payments” and
acknowledged that “prospective monetary benefits must be
obtained through the [relevant] administrative avenues.” Id.
¶¶ 106-07. As relief, Havens requested the court to direct the
Secretary and the BCNR “to correct his records to reflect that
he should have been medically retired to a date as determined
by this court.” Id. ¶ 108.
The Secretary moved to dismiss the complaint under Rule
12(b)(1) for lack of subject-matter jurisdiction and under Rule
12(b)(6) for failure to state a claim. In the alternative, the
Secretary sought summary judgment; Havens cross-moved for
summary judgment in part. The Secretary argued that the
district court lacked subject-matter jurisdiction because
Havens’s suit was an action for money damages that could be
brought only in the Court of Federal Claims under the Tucker
Act. The Secretary also argued that the court lacked
jurisdiction because Havens’s complaint was filed outside the
APA’s six-year statute of limitations, which, like the Tucker
Act’s statute of limitations, is jurisdictional in nature. See 28
11
U.S.C. § 2401(a) (six-year statute of limitations); Muwekma
Ohlone Tribe v. Salazar, 708 F.3d 209, 218 (D.C. Cir. 2013)
(“The court lacks subject matter jurisdiction to hear a claim
barred by section 2401(a).”). Finally, the Secretary asserted
that Havens’s complaint failed to state a claim because it was
barred by the Court of Federal Claims dismissal under res
judicata. The court concluded that the Tucker Act did not
deprive it of jurisdiction but agreed with the Secretary that the
suit was barred by res judicata and therefore dismissed the
complaint. It did not rule on the statute of limitations
question. Havens now appeals.11
11
Although the Secretary does not press on appeal his Tucker
Act and APA statute of limitations arguments, we address them as
they both implicate the district court’s jurisdiction. See Arizonans
for Official English v. Arizona, 520 U.S. 43, 73 (1997) (“[E]very
federal appellate court has a special obligation to satisfy itself not
only of its own jurisdiction, but also that of the lower courts in a
cause under review, even though the parties are prepared to concede
it. And if the record discloses that the lower court was without
jurisdiction this court will notice the defect, although the parties
make no contention concerning it.” (quotation marks and citation
omitted)); accord Riley v. Titus, 190 F.2d 653, 655 (D.C. Cir. 1951)
(“[T]his court may raise, sua sponte, defects of the District Court’s
jurisdiction which are apparent on the face of the record.”). We
conclude that the district court’s dismissal cannot be affirmed in toto
using either of these alternative grounds. See, e.g., Malladi Drugs
& Pharm., Ltd. v. Tandy, 552 F.3d 885, 892 (D.C. Cir. 2009)
(affirming dismissal on alternative ground). First, like the district
court, we believe Havens’s suit is not a Tucker Act damages action
that can be brought only in the Court of Federal Claims because
Havens does not seek monetary relief, see Am. Compl. ¶¶ 106-08,
and the injunctive relief he seeks––disability retirement status––has
considerable value that is independent of any future financial
benefits flowing from a disability designation, see Tootle v. Sec’y of
Navy, 446 F.3d 167, 176 (D.C. Cir. 2006) (suit is not damages action
properly belonging in CFC if party seeks only injunctive relief with
12
II. RES JUDICATA
We review de novo the district court’s application of res
judicata. See Ibrahim v. District of Columbia, 463 F.3d 3, 7
considerable independent value); Smalls v. United States, 471 F.3d
186, 190 (D.C. Cir. 2006) (record correction to reflect disability
retirement status has considerable independent value because it
entitles plaintiff to “host” of non-monetary benefits).
Second, we do not think the APA’s six-year statute of
limitations bars consideration of all of Havens’s claims. We read
Havens’s amended complaint to challenge his 1996 discharge from
active duty, see Am. Compl. ¶ 95, his 2002 discharge from the
Selected Reserve, see id. ¶ 81, and all six BCNR decisions from 2000
through 2007 denying Havens’s record correction and
reconsideration requests, see id. ¶¶ 98-100, 103. Although we
affirm the dismissal of Havens’s claims challenging the 1996 and
2002 discharges and the BCNR decisions issued between 2000 and
2002––as the limitations periods for his claims challenging the
discharges and those BCNR decisions had plainly expired by the
time Havens filed suit in 2010––his challenges to the 2006 and 2007
BCNR decisions denying him a record correction in relation to the
2002 discharge from the Selected Reserve are timely. Havens’s
APA claims challenging those decisions accrued when the decisions
issued in 2006 and 2007, well within six years of the 2010 complaint.
See, e.g., Blassingame v. Sec’y of Navy, 811 F.2d 65, 71 (2d Cir.
1987) (claim challenging correction board decision accrues on date
of decision); Dougherty v. BCNR, 784 F.2d 499, 501-02 (3d Cir.
1986) (same); Smith v. Marsh, 787 F.2d 510, 512 (10th Cir. 1986)
(same); Geyen v. Marsh, 775 F.2d 1303, 1309 (5th Cir. 1985)
(same). Compare Martinez, 333 F.3d at 1303-04 (Tucker Act suit
challenging service member’s discharge accrues on date discharge is
finalized, notwithstanding subsequent correction board decision)
with Chambers v. United States, 417 F.3d 1218, 1224 (Fed. Cir.
2005) (“[C]laims of entitlement to disability retirement pay
generally do not accrue until the appropriate military board either
finally denies such a claim or refuses to hear it.”).
13
(D.C. Cir. 2006) (“We . . . turn to the District Court’s
application of res judicata, which we review de novo.”). The
district court concluded, and the Secretary argues on appeal,
that Havens’s amended complaint is barred by res judicata
because it raises the same claims that were previously
dismissed by the CFC as time-barred under the Tucker Act’s
jurisdictional statute of limitations. See Havens v. Mabus,
892 F. Supp. 2d 303, 310-14 (D.D.C. 2012). “Under the
doctrine of res judicata, or claim preclusion, a subsequent
lawsuit will be barred if there has been prior litigation (1)
involving the same claims or cause of action, (2) between the
same parties or their privies, and (3) there has been a final,
valid judgment on the merits, (4) by a court of competent
jurisdiction.” Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw,
Pittman, LLC, 569 F.3d 485, 490 (D.C. Cir. 2009) (quotation
marks omitted). We conclude that res judicata does not bar
Havens’s suit because the CFC dismissal does not constitute a
final, valid judgment on the merits.12
We have previously held that “dismissals for lack of
jurisdiction are not decisions on the merits and therefore have
no res judicata effect on subsequent attempts to bring suit in a
court of competent jurisdiction.” Kasap v. Folger Nolan
Fleming & Douglas, Inc., 166 F.3d 1243, 1248 (D.C. Cir.
1999); see also Prakash v. Am. Univ., 727 F.2d 1174, 1182
(D.C. Cir. 1984) (“A dismissal for lack of subject-matter
jurisdiction . . . is not a disposition on the merits and
consequently does not have res judicata effect.” (footnotes
omitted)); 5B CHARLES ALAN WRIGHT ET AL., FEDERAL
12
Assuming arguendo that the district court correctly described
the CFC’s APA jurisdiction, that is, that “[Havens] could have
received the benefit of a correction of his record” from that court,
Havens, 892 F. Supp. 2d at 314, the district court nonetheless erred
in treating the CFC’s dismissal of Havens’s claims as a merits
dismissal.
14
PRACTICE AND PROCEDURE § 1350, at 207-08, 210 (3d ed.
2004) (“Inasmuch as a Rule 12(b)(1) motion basically is one in
abatement, a dismissal is not a decision on the merits and has
no res judicata effect that would prevent the reinstitution of the
action in a court that has subject matter jurisdiction over the
controversy.” (footnotes omitted)).
This precedent is in line with Federal Rule of Civil
Procedure 41(b) and the Supreme Court’s interpretation of
Rule 41(b) in Semtek International Inc. v. Lockheed Martin
Corp., 531 U.S. 497 (2001). Rule 41(b) provides that an
involuntary dismissal––“except one for lack of jurisdiction,
improper venue, or failure to join a party under Rule 19––
operates as an adjudication on the merits.” FED. R. CIV. P.
41(b) (emphasis added). In Semtek, the Supreme Court
concluded that an “adjudication upon the merits” under Rule
41(b) is synonymous with a dismissal with prejudice and “the
opposite of a ‘dismissal without prejudice.’ ” 531 U.S. at 505(quotation marks omitted); see also Jones v. Horne, 634 F.3d
588, 603 (D.C. Cir. 2011) (“The Supreme Court has interpreted
[‘adjudication on the merits’] as synonymous with dismissal
‘with prejudice.’ ”). A jurisdictional dismissal––which is not
an adjudication on the merits under Rule 41(b)––is, then, a
dismissal without prejudice. As the Court explained in
Semtek, a dismissal without prejudice “will . . . ordinarily
(though not always) have the consequence of not barring the
claim from other courts.” 531 U.S. at 505 (emphasis in
original).
It is plain that the CFC dismissal of Havens’s Tucker Act
suit based on that Act’s statute of limitations is not res
judicata. First, it is undisputed that the CFC’s dismissal is a
jurisdictional dismissal. As the Federal Circuit recognized in
Martinez, the Tucker Act’s statute of limitations––codified at
28 U.S.C. § 2501––is a “condition[] on the [United States’]
15
waiver of sovereign immunity” and is therefore “jurisdictional
in nature.” 333 F.3d at 1316. Second, and consistent with
the Rule 41(b) framework described in Semtek, the CFC and
the Federal Circuit have made clear that a Tucker Act section
2501 dismissal “must be” without prejudice. Remmie v.
United States, 98 Fed. Cl. 383, 389 (2011) (“Because the
statute of limitations period [under § 2501] is jurisdictional in
this Court, a dismissal on this basis must be without
prejudice.”) (citing Scott Aviation v. United States, 953 F.2d
1377, 1378 (Fed. Cir. 1992) (“Without jurisdiction, the Claims
Court cannot presume to dismiss the complaint with
prejudice.”)). In light of Semtek and our own precedent, and
recognizing the Federal Circuit’s interpretation of the Tucker
Act––a statute that circuit is uniquely charged with applying––
we conclude that the CFC’s Rule 12(b)(1) dismissal is not a
“final, valid judgment on the merits” that bars this suit. See,
e.g., EFCO Corp. v. U.W. Marx, Inc., 124 F.3d 394, 398 (2d
Cir. 1997) (court must examine “what was intended by the first
decision and what the logical consequences of that decision
are” in order “to determine the res judicata effect of a prior
claim”). Our conclusion follows the rule that the “expiration
of the applicable statute of limitations merely bars the remedy
and does not extinguish the substantive right, so that dismissal
on that ground does not have claim-preclusive effect in other
jurisdictions with longer, unexpired limitations periods.”
Semtek, 531 U.S. at 505; see also 18A CHARLES ALAN WRIGHT
ET AL., FEDERAL PRACTICE AND PROCEDURE § 4441, at 224 (2d
ed. 2002).
Neither Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228
(1995), nor Smalls, 471 F.3d at 192––two decisions relied upon
by the Secretary and the district court––requires a different
result. In Plaut, the Supreme Court declared that “[t]he rules
of finality, both statutory and judge made, treat a dismissal on
statute-of-limitations grounds the same way they treat a
16
dismissal for failure to state a claim, for failure to prove
substantive liability, or for failure to prosecute: as a judgment
on the merits.” 514 U.S. at 228 (citing FED. R. CIV. P. 41(b)).
By analogizing the statute-of-limitations dismissal to a
dismissal for failure to state a claim, the Court made clear that
it was not addressing a 12(b)(1) dismissal based on a
jurisdictional statute of limitations.
The district court’s and the Secretary’s reliance on Smalls
is similarly unavailing. There, we concluded that an earlier
district court dismissal (in the District of Hawaii) of a lawsuit
alleging Little Tucker Act and APA claims for lack of
jurisdiction was res judicata as to a second suit also brought in
the district court under the APA. See 471 F.3d at 192. In
other words, Smalls involved a second lawsuit brought in
district court (albeit a different district) and governed by the
same statute of limitations. Relying on Kasap, Prakash and
Semtek, we do not think Smalls binds us in determining the
effect of a dismissal by a court of limited jurisdiction based on
a jurisdictional statute of limitations––section 2501––on a
second suit brought in a different court and, most important
here, applying a different statute of limitations. In Smalls, we
were not faced with a “subsequent attempt[] to bring suit in a
court of competent jurisdiction,” Kasap, 166 F.3d at 1248,
because the second Smalls suit brought the same claim, in the
same court system with the same subject-matter jurisdiction, as
the first; therefore, like the first Smalls court, the second Smalls
court was not “a court of competent jurisdiction,” id.; see, e.g.,
Martel v. Stafford, 992 F.2d 1244, 1245-46 (1st Cir. 1993)
(“[T]he general rule is that a dismissal on limitations grounds
does not bar the claim generally, but only bars a second action
in the same jurisdiction or in a jurisdiction that would apply the
same statute of limitations.”); see also Reinke v. Boden, 45
F.3d 166, 171 (7th Cir. 1995) (while “intrasystem use of res
judicata” for statute of limitations dismissals “promotes
17
judicial economy within that system . . .[,] the intent of the first
forum to save the judicial resources of the second cannot be so
readily presumed” in “intersystem use of res judicata”).
For the foregoing reasons, the district court’s dismissal of
Havens’s claims challenging his 1996 discharge from active
duty, his 2002 discharge from the Selected Reserve and the
BCNR decisions issued between 2000 and 2002 is affirmed as
those claims are barred by the APA statute of limitations. See
Malladi Drugs & Pharm., Ltd. v. Tandy, 552 F.3d 885, 892
(D.C. Cir. 2009). Its dismissal of Havens’s challenges to the
2006 and 2007 BCNR decisions is reversed and the case is
remanded for further proceedings consistent with this opinion.
So ordered.