BOARDS FOR THE CORRECTION OF MILITARY RECORDS (BCMR) BLOG
The Army Settles Lawsuit Challenging The ABCMR’s Retroactive Application Of Its 1-Year Reconsideration Rule
In Adamski v. McHugh, Case No. 14-cv-0094, the U.S. District Court for the District of Columbia confronted a challenge to the Army Board for the Correction of Military Record’s application of its one-year limitation rule for petitions for reconsideration of prior decisions. Since 2006, when the one-year rule was enacted, the ABCMR has applied the rule retrospectively, without regard to the date of the original application. While precise figures are unavailable, the ABCMR likely has done so in thousands of applications.
Mr. Adamski claimed that the ABCMR exceeded its legal authority by retroactively applying the rule to his 2011 application for reconsideration of the board’s 1989 denial of his original application. He also claimed that the ABCMR acted unlawfully by allowing staff members to deny Mr. Adamski’s 2011 application without referring the matter to a panel of actual ABCMR members. Both ABCMR practices appear commonplace.
The ABCMR had informed Mr. Adamski in 1989 that the board would reconsider his application if he presented “newly discovered relevant evidence not previously considered by the Board.” The ABCMR obviously did not inform him of a one-year limitation because it did not exist.
Mr. Adamski contended that the ABCMR “summarily refused Adamski’s request to reconsider its 1989 decision. The [ABCMR] applied its new 2006 one-year reconsideration rule, in his case, to retroactively revoke a right to reconsideration upon ‘new evidence’….” He informed the Court of the general prohibition on retroactive rules that extinguish existing legal claims, as occurred in his case, and argued that the ABCMR’s retroactive application of the one-year rule exceeded the Board’s legal authority (it was “ultra vires”).
The Army filed a motion to dismiss the lawsuit based in part on the six-year statute of limitations for judicial review of ABCMR decisions (28 U.S.C. Section 2401(a)). The Army argued that the six-year limitation period ran from the date of Adamski’s 1989 decision. The Army also offered a “fallback” position, that Adamski was actually challenging the decision of the Army in 2006 to impose the one-year reconsideration rule. In that case, his claim expired in 2012.
The Court readily disposed of the Army’s argument that Mr. Adamski’s claim was barred by the six-year statute of limitations, noting: "The bottom line is this: a lawsuit filed in 2014 that challenges agency conduct that occurred in 2011 falls well within the six-year statute of limitations period, and Defendant’s contention that 28 U.S.C. § 2401(a) bars Adamski’s claim is meritless."
Turning to Mr. Adamski’s “ultra vires” claim, the Court concluded that “prudential exhaustion requirements may apply here,” a defense not raised by the Army. The Court directed the parties to engage in discovery concerning the availability of an administrative process within the Army to contest its application of the one-year rule to Mr. Adamski’s case. “In this Court’s preliminary review, requiring Adamski to bring to the Board or the Secretary his argument that the ABCMT acted outside its authority … seems likely to serve the underlying purposes of administrative exhaustion….”
That, of course, meant Mr. Adamski would have to return to the ABCMR to have the ABCMR decide whether it had acted unlawfully in the first place, since the ABCMR is the Secretary of the Army for record correction purposes. To the Army’s credit, it entered into a Joint Stipulation of Settlement and Dismissal with Mr. Adamski, the Army agreeing that the ABCMR “will provide Plaintiff a decision on the merits of his request within one hundred eighty (180) days of receipt of Plaintiff’s request.” The Army further stipulated that “no member that participated in Plaintiff’s first consideration will take part in his reconsideration.”
As mentioned above, the ABCMR routinely applies the one-year limitation retroactively. In a number of cases that I am aware of, challenges to the Board’s retroactive application of the rule have resulted in the Board considering the merits of the applications. It is appalling, however, that the ABCMR continues to retroactively extinguish claims in a manner contrary to binding Supreme Court precedent. The day should come soon when applicants will gain the benefit of a federal court decision striking down the ABCMR’s underhanded practice.