ROBINSON v. USA
Filing
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UNPUBLISHED OPINION and ORDER denying 20 Defendant's Motion to Dismiss, granting 20 Defendant's Motion for Judgment on the Administrative Record, and denying 24 Plaintiff's Cross-Motion for Judgment on the Administrative Record. The Clerk is directed to enter judgment. Signed by Judge George W. Miller. (np3) Copy to parties.
In the United States Court of Federal Claims
No. 10-397
(Filed: September 23, 2011)
NOT FOR PUBLICATION
WAYNE A. ROBINSON,
Plaintiff,
v.
THE UNITED STATES,
Defendant.
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Jason E. Perry, Cheshire, Connecticut, for plaintiff.
Jessica A. Toplin, Trial Attorney, Steven J. Gillingham, Assistant Director, Jeanne
Davidson, Director, Civil Division, Commercial Litigation Branch, Tony West, Assistant
Attorney General, Civil Division, United States Department of Justice, Washington, D.C., for
defendant. Captain John Geohring, Air Force Civil Litigation, Arlington, Virginia, of counsel.
OPINION AND ORDER
GEORGE W. MILLER, Judge
Wayne A. Robinson has filed a complaint against the United States alleging wrongful
discharge from the Air Force (docket entry 1, June 28, 2010). Under the Military Pay Act, 37
U.S.C. § 204, plaintiff seeks restoration to active duty status until he is processed through the
Disability Evaluation System (“DES”), pay and allowances lost by reason of his alleged
wrongful discharge, payment of out-of-pocket expenses for medical care, and an award of costs
and attorney’s fees. Pursuant to Rule 12(b)(6) of the Rules of the Court of Federal Claims
(“RCFC”), defendant filed a motion to dismiss this action, arguing that plaintiff’s claims are
nonjusticiable 1 and moved in the alternative for judgment on the administrative record pursuant
1
Although defendant moves for dismissal pursuant to RCFC 12(b)(6), some authority
suggests that a nonjusticiable claim should be dismissed on jurisdictional grounds pursuant to
RCFC 12(b)(1). See BLR Grp. of Am., Inc. v. United States, 94 Fed. Cl. 354, 361 & n.5 (2010)
(discussing whether nonjusticiable claims should be dismissed for lack of jurisdiction or for
failure to state a claim). Here, defendant asserts that plaintiff’s claims are “beyond the Court’s
authority for review,” Def.’s Mot. to Dismiss 7 (docket entry 20, Jan. 25, 2011), which suggests
defendant seeks to dismiss for lack of jurisdiction rather than failure to state a claim. Because
to RCFC 52.1. Plaintiff subsequently filed a cross-motion for judgment on the administrative
record (docket entry 24, Feb. 25, 2011). For the reasons set forth below, the Court DENIES
defendant’s motion to dismiss pursuant to RCFC 12(b)(6), DENIES plaintiff’s cross-motion for
judgment on the administrative record, and GRANTS defendant’s motion for judgment on the
administrative record.
I.
Background
Plaintiff joined the United States Air Force in 1970 and served at various times on active
duty and as a reservist. Compl. ¶ 6. In 1985, plaintiff reenlisted in the Air Force Reserves, and,
in July 2001, he was transferred to the 137th Airlift Squadron in Newburgh, New York. Id.
¶¶ 7–8. Plaintiff was serving on active duty when, on March 3, 2007, he injured his shoulder and
back while lifting a child out of an aircraft cockpit during an official tour for civilians of the
unit’s aircraft and facilities. Administrative R. (“AR”) 37, 44 (docket entry 18, Jan. 21, 2011).
Soon after his injury, plaintiff’s primary care provider, Saratoga Family Medical Practice,
referred him to a spine specialist. AR 44. On March 22, 2007, the spine specialist, Dr. Joseph
LaRosa of Orthopedic Associates of Saratoga, referred plaintiff to a physical therapist, who
treated plaintiff for approximately one month. AR 40–41. On April 5, 2007, just over a month
after the injury, Dr. LaRosa reported that plaintiff’s “examination today is normal” and “[t]he
patient is certainly fit to fly.” AR 38.
Despite Dr. LaRosa’s diagnosis, on June 5, 2007, New York State Air Surgeon Colonel
Reid Muller instructed Captain Martin Stallone, plaintiff’s profile officer, to refer plaintiff to the
DES. Compl. Ex. 1, at 6. The DES process entails an initial hearing before a Medical
Evaluation Board (“MEB”), a “[p]hysical disability evaluation by [a] Physical Examination
Board,” counseling, and a final disposition by an authorized person. Department of Defense
Instruction (“DODI”) 1332.38 para. E3.P1.1 (Nov. 14, 1996); see also Air Force Instruction
(“AFI”) 41-210 para. 10.1.1 (Mar. 22, 2006) (“The MEB is the first step in the Air Force
disability evaluation process to determine who is not worldwide qualified.”).
On August 2, 2007, Captain Stallone determined that plaintiff’s pinched shoulder nerve
occurred in the line of duty. AR 44–45. Captain Stallone also completed plaintiff’s Physical
Profile Serial Report (“Physical Report”). AR 27. In the report, based on the PULHES 2 ranking
system, Captain Stallone recorded a temporary upper-extremity rating of 4T, AR 27, indicating
an injury affecting “[s]trength, range of motion, and general efficiency of hand, arm, shoulder
girdle, and back includ[ing] cervical and thoracic spine.” AFI 48-123v.4 Attach. 4 (June 5,
2006). The T indicated that he was “temporarily not qualified for retention or [was] undergoing
an MEB to determine fitness.” AFI 48-123v.2 para. 4.5.6.4.2 (June 5, 2006).
the Court concludes that plaintiff’s claims are justiciable, the Court need not further consider the
proper procedural basis for dismissal. See BLR Grp. of Am. Inc., 94 Fed. Cl. at 361.
2
PULHES is a physical profiling system that rates individuals on a numerical scale from
one to four in the following categories: Physical capacity, Upper extremities, Lower extremities,
Hearing and ear, Eyes, and Psychiatric. See AFI 48-123v.4 Attach. 4.
2
Pursuant to DES protocol, Captain Stallone then referred plaintiff to an MEB. AR 27.
Because plaintiff’s active duty status was set to expire on October 1, 2007, AR 46, 49, the Air
Force placed plaintiff in the Medical Continuation Program, AR 46, which allows reserve and
guard members who are receiving treatment for injuries incurred or aggravated in the line of duty
to remain on active duty on medical continuation status. See 10 U.S.C. § 12301(h); DODI
1241.2 para. 6.6.1 (May 30, 2001). The Air Force Medical Operations Agency (“Medical
Operations”) administers the Medical Continuation Program. See Supplemental (“Suppl.”) AR 3
Ex. 2, at 1–2.
After almost one year on medical continuation status, plaintiff received a diagnosis from
Dr. LaRosa on September 9, 2008, which stated, “Pinched nerve resolved[,] the prognosis is
normal function.” AR 4–5. Then, on September 10, 2008, Lieutenant Colonel (“Lt. Col.”) Eric
Wittmann, plaintiff’s new profile officer, updated plaintiff’s PULHES profile to reflect a new
upper extremity rating of 1. Suppl. AR Ex. 1, Attach. 1. That rating replaced the 4T rating and
meant that plaintiff was fit for duty. Id. For upper extremities, a 1 indicates that “bones, joints,
muscles [are] normal” and that members are capable of hand-to-hand fighting. AFI 48-123v.4
Attach. 4. Due to the determination that plaintiff was fit for duty and the resolution of his
temporary 4T status, Medical Operations did not renew plaintiff’s medical continuation status,
which expired on September 10, 2008, AR 53, resulting in the expiration of plaintiff’s active
duty status.
Plaintiff filed his complaint in this court on June 28, 2010. He alleges that the Air
Force’s failure to conduct an MEB hearing violated Air Force Instructions. Compl. ¶ 11 (citing
AFI 48-123v.2). Plaintiff further alleges that his discharge on September 10, 2008, was
wrongful because the governing statutes and Air Force Instructions required that he remain on
active duty until he was fully processed through the DES, which required an MEB hearing. Id. ¶
14. He also alleges that the Air Force acted arbitrarily and capriciously by failing to consider
various other alleged medical ailments when it determined that he was no longer qualified for
medical continuation status. Id. ¶ 11 (alleging plaintiff suffered orthopedic problems,
hypertension, a hiatal hernia, and aortic aneurysm, all of which he incurred in the line of duty).
As a result, plaintiff requests restoration to active duty until the DES process is completed; lost
pay and allowances due to his having been improperly removed from medical continuation status
3
On June 27, 2011, having determined that meaningful review of the Air Force’s action
was impossible given the then-existing administrative record, the Court sua sponte ordered
supplementation (docket entry 31). In so doing, the Court exercised its authority to “obtain from
the agency . . . such additional explanations of the reasons for the agency decision as may prove
necessary.” Camp v. Pitts, 411 U.S. 138, 142–43 (1973) (holding that a court may look outside
of the administrative record where “there was such failure to explain administrative action as to
frustrate effective judicial review”); accord Walls v. United States, 582 F.3d 1358, 1367–68
(Fed. Cir. 2009) (noting that the administrative record of agency action may be supplemented “if
the existing record is insufficient to permit meaningful review” (quoting Axiom Res. Mgmt. v.
United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (internal quotation marks omitted))); see
also WildWest Inst. v. Bull, 547 F.3d 1162, 1176 (9th Cir. 2008) (“We may consider extra-record
materials . . . when necessary to determine whether the agency considered all relevant factors in
making its decision; . . . [or] when necessary to explain . . . complex subject matter . . . .”).
3
and from active duty; and payment of out-of-pocket expenses for medical care. Id. ¶¶ 17–18,
Prayer for Relief ¶¶ a–e.
II.
Legal Standard
A.
Rule 12(b)(6) Motion to Dismiss
To survive a motion to dismiss for failure to state a claim upon which relief can be
granted pursuant to RCFC 12(b)(6), “a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Disputed issues
are construed favorably to the [plaintiff].” Advanced Cardiovascular Sys., Inc. v. Scimed Life
Sys., Inc., 988 F.2d 1157, 1161 (Fed. Cir. 1993) (citing United States v. Mississippi, 380 U.S.
128, 143 (1965)). A plaintiff must present a claim that a court “can finally and effectively
decide, under tests and standards which [a court] can soundly administer within [its] special field
of competence.” Sargisson v. United States, 913 F.2d 918, 922 (Fed. Cir. 1990) (quoting Voge v.
United States, 844 F.2d 776, 780 (Fed. Cir. 1988)) (internal quotation marks omitted). When a
plaintiff’s claim is nonjusticiable, it must be dismissed. See supra note 1.
Although a determination of an individual’s fitness to serve may be nonjusticiable in
most cases, “a challenge to a particular procedure followed by the military in rendering a
decision may present a justiciable issue.” Fisher v. United States, 402 F.3d 1167, 1177 (Fed.
Cir. 2005) (non-en banc portion). The military is bound to abide by its own procedures. Id.
Accordingly, “[a] court may decide whether the military has complied with procedures set forth
in its own regulations because those procedures by their nature limit the military's discretion.”
Id. In keeping with this standard, a court may not substitute its own judgment for that of the
military, especially when addressing “the basic question of an individual’s eligibility to serve the
nation as a war fighter.” Id. at 1180; see also Adkins v. United States, 68 F.3d 1317, 1323 (Fed.
Cir. 1995) (“[A]lthough the merits of a decision committed wholly to the discretion of the
military are not subject to judicial review, a challenge to the particular procedure followed in
rendering a military decision may present a justiciable controversy.”).
B.
Motion for Judgment on the Administrative Record
Pursuant to RCFC 52.1, judgment on the administrative record “is akin to an expedited
trial on the record and has no counterpart in the Federal Rules of Civil Procedure.” Bannum, Inc.
v. United States, 96 Fed. Cl. 364, 379 (2010). Unlike Rule 56 of the Federal Rules of Civil
Procedure, a dispute over a material fact does not prevent the Court from granting a motion for
judgment on the administrative record. Id. at 380. Instead, the Court determines whether “a
party has met its burden of proof based on the evidence in the record.” A & D Fire Prot., Inc. v.
United States, 72 Fed. Cl. 126, 131 (2006) (citing Bannum, 404 F.3d at 1356).
To meet his burden, plaintiff must establish by reference to the administrative record that
the action of the Air Force was “arbitrary, capricious, contrary to law, or unsupported by
substantial evidence.” Barnick v. United States, 591 F.3d 1372, 1377 (Fed. Cir. 2010) (citing
Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005)). Courts defer to agency
decisions and will not “disturb the decision” unless it falls within one of the four categories
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described in the cases cited. Id. Thus, the Court must “consider whether the decision was based
on a consideration of the relevant factors and whether there has been a clear error of judgment.”
Robbins v. United States, 29 Fed. Cl. 717, 725 (1993) (quoting Bowman Transp., Inc. v.
Arkansas-Best Freight Sys. Inc., 419 U.S. 281, 285 (1974)) (internal quotation marks omitted).
Plaintiff bears the burden of overcoming the “‘strong, but rebuttable, presumption’ that
the military discharges its duties ‘correctly, lawfully, and in good faith.’” Bernard v. United
States, 59 Fed. Cl. 497, 501 (2004) (quoting Hary v. United States, 618 F.2d 704, 707 (Ct. Cl.
1980)); accord Richey v. United States, 322 F.3d 1317, 1326 (Fed. Cir. 2003) (noting “the
presumption of regularity that attaches to all administrative decisions” of the United States).
III.
Discussion
In analyzing plaintiff’s action, the Court first determines whether the claims are
justiciable. If so, the Court will consider whether the Air Force acted arbitrarily, capriciously,
without substantial evidence, or contrary to law when it did not renew plaintiff’s medical
continuation status, resulting in his removal from active duty, which is the basis for plaintiff’s
wrongful discharge claim.
A.
Plaintiff’s Claims are Justiciable
Defendant first argues that this action should be dismissed pursuant to RCFC 12(b)(6) for
failure to state a justiciable claim upon which relief can be granted. Def.’s Mot. to Dismiss 7;
see also supra note 1. Defendant contends that plaintiff is challenging the Air Force’s
determination that he is fit for duty and that this determination is not subject to judicial review.
Def.’s Mot. to Dismiss 7. Plaintiff argues that his claims are justiciable because he does not
challenge the substance of the fitness determination. Pl.’s Opp’n to Mot. to Dismiss 6 (docket
entry 24, Feb. 26, 2011). Instead, plaintiff claims the Air Force either failed to follow its own
regulations and procedures in determining his fitness for duty or that the Air Force’s decision
finding him fit for duty was arbitrary and capricious. Id. (citing Fisher, 402 F.3d at 1177).
Defendant implies that the Court cannot grant relief to plaintiff without addressing the
merits of plaintiff’s fitness determination. Def.’s Mot. to Dismiss 7–8. But that argument—that
plaintiff “is challenging the substance of the Air Force’s decision” because “the Air Force
followed all applicable regulations when it discontinued [plaintiff’s] medical continuation,” id. at
8—assumes the key issue in this case, i.e., whether the Air Force did, in fact, correctly follow its
own procedures.
Plaintiff’s complaint and response brief in opposition to defendant’s motion to dismiss
assert only that the Air Force did not follow its own regulations and procedures and that this
failure entitles him to relief. Compl. ¶¶ 11, 14; Pl.’s Opp’n to Mot. Dismiss 6 (“[T]his case is
about the failure of the Air Force to follow proper procedures in making a fitness
determination.”). Plaintiff does not ask the Court to review the merits of the Air Force’s decision
to discontinue plaintiff’s medical continuation status. Rather, plaintiff asks the Court to assess
the Air Force’s actions in light of the Air Force’s own regulations and procedures. That
assessment can be accomplished without addressing the merits of the fitness determination.
Accordingly, defendant’s motion to dismiss for failure to state a justiciable claim must fail.
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B.
The Air Force’s Decision to Discontinue Plaintiff’s Medical Continuation Status
Was Not Arbitrary, Capricious, Unsupported by Substantial Evidence, or
Contrary to Law
1.
The Air Force’s Decision to Discontinue Plaintiff’s Medical Continuation
Status Was Not Contrary to Law
The Air Force’s decision to discontinue plaintiff’s medical continuation status was not
contrary to law because an authorized officer found him fit for duty when the officer removed
plaintiff’s 4T designation, thereby “clearing” his physical profile. After plaintiff received a 4T
profile rating from the injuries he incurred in the line of active duty, Air Force Instructions
required that he remain on medical continuation status until one of two events occurred: (1) he
was processed through the DES (including the initial MEB hearing); or (2) his profile was
“resolved,” i.e., his profile officer removed the 4T designation and found him fit for duty. AFI
48-123v.2 para. 4.6.2 (“[Air National Guard members] with a 4T profile incurred in the line of
duty will be retained on military orders until the profile is resolved or the member is processed
through the DES.”); Suppl. AR Ex. 2, Attach. 5 (“Active duty orders will be continued until the
Airman is returned to duty or processed through the DES.”).
A 4T designation does not necessarily entitle a service member to an MEB hearing. See
Childers v. United States, 81 Fed. Cl. 693, 698, 721 (2008). In Childers, a service member
received a 4T in the Physical category of her PULHES report and was initially referred to the
MEB for a hearing. Id. at 698. However, her original diagnosis, which triggered the 4T profile,
was subsequently updated. Id. at 718. The plaintiff’s updated diagnosis provided “no suggestion
that she was not fit to continue her military duties,” id., a suggestion that would necessitate an
MEB hearing. See Suppl. AR Ex. 2, Attach. 6, at 16 (“The MEB is the first step in the Air Force
[DES] process to determine suitability for continued military duty.”); cf. Childers, 81 Fed. Cl. at
704–05 (noting that the existence of “severe or grave medical conditions” could “require[] that [a
person] be presented before an MEB”). Accordingly, the court in Childers found that the
plaintiff’s original 4T designation and MEB referral did not entitle her to an MEB hearing after
her medical records were updated to reflect the correct diagnosis and she was determined to be
fit for duty. Id. at 718–19.
Here, plaintiff alleges that the Air Force violated its own regulations and procedures by
failing to initiate an MEB hearing after the New York State Air Surgeon referred him to the
DES. Compl. ¶ 11. Plaintiff claims that once he was referred to the DES, his medical
continuation status could end lawfully only through completion of the DES process (including
the initial MEB hearing) and a final finding of fitness by the Medical Standards Branch. 4 Pl.’s
Sur-Reply 6 (citing AFI 41-210 para. 10.1.5.1) (docket entry 30, Apr. 19, 2011). However,
plaintiff was not entitled to an MEB hearing simply because he was assigned a 4T profile and
4
The “Medical Standards Branch” is the Headquarters, Air Force Personnel Center,
Directorate of Assignments, Medical Service Officer Management Division, Medical Standards
Branch (HQ AFPC/DPAMM). See AFI 36-2009 para. 1.6.1 (June 1, 1999).
6
referred to an MEB by Captain Stallone. 5 On September 10, 2008, Lt. Col. Wittmann resolved
plaintiff’s 4T profile, Suppl. AR 55, which meant plaintiff was fit for duty, no longer needed an
MEB, and was no longer eligible for medical continuation status. 6
Because plaintiff’s profile had already been resolved when Medical Operations declined
to renew his medical continuation status, see id., the Air Force complied with its own regulations
and procedures. Plaintiff has therefore failed to meet his burden to demonstrate how the Air
Force’s decision not to renew his medical continuation status was contrary to law.
2.
The Air Force Was Not Required to Review Additional Medical Records
Plaintiff also claims that the Air Force did not adequately consider his entire medical
history when it decided to terminate his medical continuation status and that its failure to do so
was arbitrary and capricious. Pl.’s Opp’n to Mot. to Dismiss 13. Plaintiff does not assert an
entitlement to disability retirement benefits. See Status Conference at 3:04:44, Robinson v.
United States, No. 10-397 (Dec. 7, 2010). The issue is whether the Air Force properly followed
its own regulations and procedures when it removed plaintiff from medical continuation status.
Loomis v. United States, 68 Fed. Cl. 503, 508 (2005). Here, plaintiff has not identified any Air
Force Instructions that would have required the Air Force to consider additional medical records
when deciding to remove plaintiff from medical continuation status. Rather, the Air Force
Instructions require only that the Air Force either resolve the temporary disability or complete
DES processing, neither of which mandates review of additional medical records. See AFI 48123v.2 para. 4.6.2. Thus, the Air Force did not act in an arbitrary or capricious manner in
connection with its review of plaintiff’s medical records.
Similarly, the Air Force’s decision to take plaintiff off medical continuation status was
not arbitrary or capricious. Plaintiff was on medical continuation status only because he had a
pinched nerve in his shoulder. See AR 4. The various other medical ailments alleged by
plaintiff had no bearing on whether he qualified for medical continuation status. Once Lt. Col.
Wittmann received a diagnosis from plaintiff’s primary healthcare provider stating that
5
Plaintiff claims that Senior Master Sergeant (“SMSgt”) Connie Rubio of Medical
Operations exceeded her authority in finding him “fit for duty” by resolving his 4T profile and
failing to extend his medical continuation. However, as evidenced by plaintiff’s medical records,
it was not SMSgt Rubio but rather Lt. Col. Wittmann, Robinson’s profile officer, who resolved
his profile and found him fit for duty. See Suppl. AR 55.
6
The Air Force Instructions required that the Air Force terminate plaintiff’s medical
continuation status once his 4T profile was resolved. AFI 48-123v.2 para. 4.6.2; DODI 1241.2
para. 6.3.3.1 (requiring that medical continuation “shall terminate on the date that . . . [t]he
member is found fit for duty”). As plaintiff concedes in his sur-reply brief, profile officers have
the authority to find members fit for duty. Pl.’s Sur-Reply 4 (citing AFI 10-203 para. 2.9.4 (June
25, 2010)). If a profile officer finds that a member’s temporary condition is no longer impeding
his military fitness, then the profile officer has the authority to change the member’s PULHES
profile to reflect the resolution of the temporary condition and the soldier’s fitness for duty. AFI
10-203 paras. 2.12.5, 2.12.6.
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plaintiff’s pinched nerve was resolved, he had the authority to update plaintiff’s 4T profile and
find him fit for duty. Cf. AFI 10-203 para. 2.12.6 (allowing profile officers to supersede
healthcare provider recommendations, but requiring the officers to send an explanation to the
provider). Plaintiff has failed to demonstrate that the Air Force violated its own regulations or
procedures or acted arbitrarily or capriciously in terminating his medical continuation status.
CONCLUSION
In light of the foregoing, the Court concludes that plaintiff’s action is justiciable, and the
Court therefore DENIES defendant’s RCFC 12(b)(6) motion to dismiss for failure to state a
justiciable claim. The Court further concludes that plaintiff has failed to meet his burden to
demonstrate that the Air Force acted arbitrarily, capriciously, without substantial evidence, or
contrary to law in determining that plaintiff was ineligible for further medical continuation status
after his physician reported that the pinched nerve in his shoulder was resolved, with the result
that plaintiff’s active duty status expired. The Court therefore GRANTS defendant’s motion for
judgment on the administrative record and DENIES plaintiff’s cross-motion for judgment on the
administrative record. The Clerk shall enter judgment for defendant.
IT IS SO ORDERED.
s/ George W. Miller
GEORGE W. MILLER
Judge
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