ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS
I. INTRODUCTION
Plaintiff Eugene Smalls (“Plaintiff’) seeks to upgrade his discharge from the U.S. Marine Corps (“Marine Corps”). The defendants named in the suit include the Secretary of the Navy, the Department of the Navy, and the Board for Correction of Naval Records (“BCNR”) (collectively “Defendants”). Defendants move to dismiss the complaint as time-barred and for failure to meet the jurisdictional requirements of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. The Court grants the motion in part and denies it in part.
Plaintiff served in the Marine Corps on active duty from June 29, 1978, to December 4, 1980. Plaintiff alleges that he experienced pain under the arches of his feet during a training exercise in 1979. Apparently, Plaintiff suffered from pies planus, or flat feet. A medical board determined he was entitled to an “honorable discharge.” According to Plaintiff, the evidence supported a “military discharge.” 1 It appears the Marine Corps discharged Plaintiff on December 4, 1980, although the complaint is unclear on this point.
Plaintiff appealed to the BCNR for a rehearing regarding his discharge status. He sought correction of his military record to reflect that his foot condition occurred in the line of duty. The BCNR denied his appeal on June 26, 1986, and again in November 1992. 2 In its second denial, the BCNR explained to him, “Although your feet became symptomatic during your period of naval service, there was no increase in severity beyond the natural progression of the preexisting condition.” Am.Compl. ¶ 24. Plaintiff appealed to the Secretary of the Navy apparently on two occasions. On April 11, 1997, and again on January 5, 1998, the Secretary affirmed the BCNR’s decision.
Plaintiff filed this action on November 12, 1998. This Court dismissed it without prejudice and with leave to amend for failure to comply with Rule 8(a) of the Federal Rules of Civil Procedure. Plaintiff then filed a verified amended complaint on November 9,1999.
Plaintiff pleads three claims for relief: (1) judicial review of the BCNR’s refusal to correct his military records, pursuant to the Administrative Procedures Act (“APA”), 5 U.S.C. § 706(2); (2) negligent infliction of emotional distress (“NIED”); and (3) defamation. Defendants move to dismiss the amended complaint pursuant to Rules 12(b)(1) and (b)(6).
III. ANALYSIS
A. CORRECTION OF MILITARY RECORDS
According to Defendants, Plaintiffs APA claim accrued on December 4, 1980, when Plaintiff was discharged from the Marine Corps. The applicable limitations period is six years. See 28 U.S.C. § 2401(a). Plaintiff filed his initial complaint on November 12, 1998, nearly eighteen years after the date of his discharge. Thus, Defendants conclude, the APA claim is barred by the statute of limitations.
As an initial matter, Defendants rely on facts not in the record. The amended complaint does not state that Plaintiff was discharged on December 4, 1980, although that is a possible interpretation of Plaintiffs allegation that he ceased active duty service on that date. Defendants rely instead on the initial complaint and its voluminous exhibits, which establish December 4,1980, as the discharge date.
The initial complaint has no relevance here. A complaint that has been amended is superseded and “treated thereafter as non-existent....”
Ferdik v. Bonzelet,
A more crucial question is the nature of Plaintiffs claim, for that determines when the claim accrues. Two avenues of relief are available to former members of the armed forces seeking to upgrade their discharge status. First, after exhausting administrative remedies, they may seek declaratory and injunctive relief against the appropriate branch of service, challenging their discharge as a violation of the Constitution, statute, or service regulations.
See Geyen v. Marsh,
Defendants do not differentiate between the two actions. Their time-bar argument rests on the notion that a decision of a corrections board does not toll the six-year limitations period because it does not create a new cause of action.
See Nichols v. Hughes,
In Nichols, the plaintiff was discharged from the Navy in 1957. He unsuccessfully petitioned various military administrative agencies for an upgrade in his discharge status, including the BCNR, from 1957 to 1958. He appealed again to the BCNR in 1975, and this time, in 1977, he successfully obtained an upgrade. The plaintiff then filed suit in 1979 to have his discharge declared void. The Ninth Circuit held that his action for wrongful discharge accrued at the time of his discharge. See id. at 659. The court also held that the BCNR’s decision in 1977 did not give rise to a new cause of action or toll the statute of limitations. See id. at 660.
Nichols
is inapposite here because it does not address whether wrongful discharge is an action separate from one for correction of a service record. The Ninth Circuit itself has recognized that
Nichols
did not deal with an action for correction of a service record.
See Guerrero v. Marsh, 819
F.2d 238, 241-42 (9th Cir. 1987);
see also Dougherty,
Although no model of clarity, Plaintiffs amended complaint sufficiently states a claim for correction of his service record. Plaintiff brings his claim under the APA. The APA provides for judicial review of agency action — in this case, the BCNR’s refusal to upgrade his discharge. Plaintiff is challenging the BCNR’s decision, not the discharge itself.
Returning to Defendants’ time-bar argument, then, the critical question is when Plaintiffs APA claim accrued. A six-year limitations period applies to actions against the United States. See 28 U.S.C. § 2401(a). The APA claim is clearly barred if it accrued at the time of Plaintiffs discharge. It is timely, however, if it accrued when the BCNR denied relief in November 1992. This is an issue of first impression in the Ninth Circuit. Accordingly, the Court seeks guidance from other jurisdictions.
There are compelling reasons for following the majority rule. First, the rule acknowledges that an action for wrongful discharge is distinct from judicial review of a correction board’s refusal to upgrade a discharge.
See Blassingame,
Second, a contrary rule subjects certain correction board decisions to judicial review, but not others. As the Second Circuit explained:
The position urged by the government, in contrast, would give some veterans the full six years [to seek judicial review] provided by 28 U.S.C. § 2401(a), others a period of less than six years and still others no review at all, depending on the time that had elapsed between discharge and the Correction Board decision. For example, a veteran who receives an adverse decision after discharge would have the remainder of the six-year limitation period to obtain judicial review, which can be some period of time between one day and six years. And, a veteran who receives an adverse Correction Board decision more than six years after discharge would have no opportunity to obtain judicial review.
Id.
at 71-72;
see also Geyen,
Third, since an action for correction of records involves judicial review based on the administrative record, the statute of limitations should begin to run when the administrative record is complete.
See Dougherty,
The Court is persuaded that the majority approach is sound. The inquiry is not at an end, however: Even assuming Plaintiffs APA claim accrued when the BCNR denied his claim, Defendants dispute which of the BCNR’s two decisions commenced the limitations period. The BCNR denied Plaintiffs claim on June 26, 1986, and again on November 13, 1992. Defendants argue that the limitations period began on the date of the first decision because, under Nichols, a second correction board decision does not create a new cause of action.
Again, Nichols does not control the result of this case. As discussed, Nichols did not involve a challenge of a BCNR action. Nichols merely held that, for purposes of a wrongful discharge action, the limitations period begins running at the time of discharge, and it is not tolled by the pursuit of a permissive remedy such as an appeal to the BCNR. Nichols is not inconsistent with the majority approach which sets the time of accrual at the date of the correction board’s last decision.
Therefore, Plaintiffs APA claim accrued at the earliest on November 13, 1992, when the BCNR last denied his request for an upgrade in discharge status.
4
B. NIED
Plaintiffs NIED claim is subject to the requirements of the FTCA. Exhaustion of administrative remedies is a prerequisite to suit under the FTCA. See 28 U.S.C. § 2674. Plaintiff does not allege that he presented his NIED claim to an administrative agency within his branch of service. Accordingly, his NIED claim is barred.
C. DEFAMATION
The FTCA specifically bars claims arising out of defamation:
The provisions of [the Federal Tort Claims Act] and section 1346(b) of this title shall not apply to—
(h) Any claim arising out of ... libel, slander
28 U.S.C. § 2680(h). Plaintiffs defamation claims are thus barred.
TV. CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’ Motion to Dismiss insofar as it seeks dismissal of the action to correct Plaintiffs service record, and GRANTS the motion to the extent it seeks dismissal of the NIED and defamation claims.
IT IS SO ORDERED.
Notes
. Plaintiff does not clearly specify the type of discharge he seeks. In his complaint, Plaintiff refers to "medical discharge" status in some places and to "military discharge” status in others.
. It is unclear whether the BCNR issued its decision on the thirteenth or twenty-fifth of November since the complaint refers to both dates. This ambiguity does not prevent the Court from deciding the statute of limitations issue.
. However, Defendants are free to present information outside of the complaint in the context of a motion for summary judgment. See Fed.R.Civ.P. 12(c), 56(c).
. As noted in note 2, supra, it is inconsequential whether the date of the BCNR’s last decision was the thirteenth or twenty-fifth of November 1992. Plaintiff's APA claim is timely either way.
. However, to the extent Plaintiff seeks damages in connection with his APA claim, the Court denies such relief because the APA does not allow recovery of damages. See 5 U.S.C. § 702.