NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 31 2025

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

JASON M. RAWLS, No. 24-4646 D.C. No.

Plaintiff - Appellant, 8:23-cv-00364-JWH-JDE v. MEMORANDUM* UNITED STATES OF AMERICA; SECRETARY OF THE ARMY, Defendants - Appellees.

Appeal from the United States District Court for the Central District of California John W. Holcomb, District Judge, Presiding

Argued and Submitted May 12, 2025 Pasadena, California Before: OWENS, BENNETT, and H.A. THOMAS, Circuit Judges. Dissent by Judge BENNETT

Jason Rawls appeals the judgment dismissing his first amended complaint as untimely under Federal Rule of Civil Procedure 12(b)(6). We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Ford v. Long Beach Unified Sch. Dist., 461 F.3d 1087, 1089 (9th Cir. 2006). We vacate and remand.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

the timing requirements for requests for reconsideration as they existed in 2015 apply. Thus, Rawls’s 2018 petition was untimely.

A statute enacted in 2016 can apply to a 2015 administrative decision only if the statute is retroactive. See Chang v. United States, 327 F.3d 911, 920 (9th Cir. 2003) (“Whether a statute has a retroactive effect is a fairly straightforward question: it is retroactive if it alters the legal consequences of acts completed before its effective date.”); INS v. St. Cyr, 533 U.S. 289, 321 (2001) (“A statute has retroactive effect when it ‘takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past . . . .’” (alteration in original) (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 269 (1994))). That is particularly true here, because the 2018 petition was a petition for reconsideration; we cannot divorce the timing of a petition for reconsideration from the date of the original agency decision.

But the changes in 10 U.S.C. § 1552(a)(3)(D) do not apply retroactively. Congress did not instruct that the statute applies retroactively. See Lindh v. Murphy, 521 U.S. 320, 328 n.4 (1997) (“[C]ases where this Court has found truly ‘retroactive’ effect adequately authorized by a statute have involved statutory language that was so clear that it could sustain only one interpretation.” (emphasis added)). And our precedent instructs that “a newly enacted statute that lengthens the applicable statute of limitations may not be applied retroactively to revive a plaintiff’s claim that was otherwise barred under the old statutory scheme because to do so would ‘alter the substantive rights’ of a party and ‘increase a party’s liability.’” 1 Chenault v. U.S. Postal Serv., 37 F.3d 535, 539 (9th Cir. 1994). Because Rawls did not timely petition for reconsideration by April 2016, his opportunity for reconsideration had expired. Rawls’s claim would be revived, altering the substantive rights of the Army, if he is now allowed to petition for reconsideration. Therefore, 10 U.S.C. § 1552(a)(3)(D) cannot be applied retroactively.

2. Even if his 2018 petition was timely, which it was not, Rawls’s request for reconsideration was not justiciable under ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987). 2 To be justiciable, a petition for reconsideration must be made “on the basis of new evidence or changed circumstances.” Id. at 284. Otherwise, the agency’s refusal is “ploughed ground” and “nonreviewable.” Id.

The majority suggests that “the district court may wish to consider whether the changed circumstances standard governing [Federal Rule of Civil Procedure] 60(b)(5) has any bearing on” this standard. Maj. at 4. Rule 60(b)(5) applies to final judgments by the district courts and “may not be used to challenge the legal conclusions on which a prior judgment or order rests.” Horne v. Flores, 557 U.S. 433, 447 (2009). But Locomotive Engineers dealt with the justiciability of agency denials of petitions for reconsideration, not district court judgments. Any changes to Rule 60(b)(5) are therefore inapplicable to Locomotive Engineers.

Rawls failed to present new evidence in his petition for reconsideration. Rawls included evidence that the Army was aware of his schizophrenia diagnosis and that his family attempted to contact the Army about his mental health issues. But this evidence was available at the time of the original decision. See Fry v. DEA, 353 F.3d 1041, 1044 (9th Cir. 2003) (Evidence that a petitioner could have introduced at the time of the initial decision “is not ‘new’ evidence.”).

Rawls argues that the Kurta Memorandum constituted new evidence or changed circumstances not before the Board in 2015. But “new evidence or changed circumstances” are limited to changed facts, not changes to administrative policy. The Supreme Court described “new evidence or changed circumstances” in Locomotive Engineers as “facts which, through no fault of his own, the original proceeding did not contain” and “new data.” 482 U.S. at 279 (emphases added). By contrast, a petition lacking “new evidence or changed circumstances” presented “the same substance that could have been brought there by appeal from the original order” and “the same record that was before the agency when it rendered its original decision.” Id. at 279, 280 (emphases added). The Supreme Court’s language clearly forecloses changes to policy or to the standard of review from constituting new evidence. Further, Locomotive Engineers’s limitation would be meaningless if any policy change, like the Kurta Memorandum, amounted to “new evidence or changed circumstances” permitting review. A petitioner could endlessly petition for reconsideration because any change to policy would render a petition justiciable, no matter how many decades old the original decision was or how slight the policy change was. Because the Kurta Memorandum is not new data or facts, Rawls’s petition for reconsideration was not justiciable.

* * *

Rawls received a final agency decision in April 2015. His statute of limitations began to run then. See Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 603 U.S. 799, 809 (2024) (“A right of action ‘accrues’ when the plaintiff has a ‘complete and present cause of action’—i.e., when she has the right to ‘file suit and obtain relief.’” (quoting Green v. Brennan, 578 U.S. 547, 554 (2016))). Rawls failed to file suit until March 2023, far past the six-year statute of limitations under the APA. See 28 U.S.C. § 2401(a). Rawls’s 2018 petition for reconsideration was not timely and was not justiciable. Therefore, it did not toll the running of his statute of limitations. For these reasons, I would affirm the district court’s dismissal of Rawls’s complaint as untimely. I respectfully dissent.