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.