Appeal from the United States Court of Federal Claims in Case No. 08-CV-925, Chief Judge Emily C. Hewitt.
NOTE: This disposition is nonprecedential
Before GAJARSA, PROST, and O'MALLEY, Circuit Judges.
Plaintiff Captain Ross E. Joslyn ("Captain Joslyn") appeals the decision of the United States Court of Federal Claims ("trial court") dismissing his complaint for lack of jurisdiction and, alternatively, granting judgment on the administrative record in favor of defendant United States. Joslyn v. United States, 90 Fed. Cl. 161 (2009). Captain Joslyn also appeals the trial court's denial of transfer. For the reasons stated below, we affirm-in-part and vacate-in-part.
Captain Joslyn is a veteran of Operation Iraqi Freedom, and he obtained the rank of Captain in the U.S. Army. During his tour in Iraq, he was involved in a Bradley Fighting Vehicle roll-over accident, and was treated for possible neck and back injuries. Following significant combat operations, including the death of a member of his platoon, Captain Joslyn was removed from his position as a platoon leader as his performance as a leader and infantryman deteriorated.
After service in Iraq, Captain Joslyn was assigned to Fort Hood, Texas where, in 2004 and 2005, he received "outstanding" evaluations on his Officer Evaluation Reports ("OER"). He was then transferred to the University of Texas at Arlington to serve as an assistant ROTC instructor. In 2006, however, Captain Joslyn received an "unsatisfactory" evaluation on his OER, apparently based on problems with his level of physical fitness. According to Captain Joslyn, on or about May 1, 2007, his commander, Lieutenant Colonel Scott Baker, advised him "that if he did not retire out of the military, he would receive a negative [OER]." Compl. ¶16. Subsequently, Captain Joslyn tendered his unqualified resignation on June 27, and contemporaneously was given a "satisfactory" evaluation on his OER. Although his resignation was approved on August 7, 2007, he remained on active duty.*fn1
On December 12, 2007, a military psychiatrist found that "with a reasonable degree of medical certainty . . . [Captain] Joslyn is suffering from chronic post-traumatic stress disorder [("PTSD")] and it is affecting his ability to function in the military setting." J.A. 162. The psychiatrist also noted that Captain Joslyn had been treated for PTSD since May 2006. She ultimately concluded that Captain Joslyn failed to meet retention standards and referred him for a disability evaluation.
In March 2008, a military orthopedic physician provided a Medical Evaluation Board ("MEB") report on Captain Joslyn. The report identified Captain Joslyn as having "lumbar degenerative disk disease with facet arthrosis," "left anterior knee pain," and "right knee status post anterior cruciate ligament reconstruction." J.A. 167. The report concluded that Captain Joslyn "is unable to fulfill the requirements of his [Military Occupational Specialty] secondary to the pain in his back and now in his left knee." Id.On review, the MEB determined that Captain Joslyn's PTSD, lumbar degenerative disk disease, and left anterior knee pain were "medically unacceptable" in accordance with Army Regulation 40-501, and referred him to a Physical Evaluation Board ("PEB"). J.A. 94.
Captain Joslyn's medical records were forwarded to the PEB, along with memoranda from Captain Joslyn's previous commanders and his OERs. Major Weinrich, Captain Joslyn's commander in Iraq, provided a memorandum verifying Captain Joslyn's combat experience, the loss of one of his men, and his removal from his position as a platoon leader. He also provided a second memorandum verifying the Bradley Fighting Vehicle accident and confirming that Captain Joslyn was evaluated for neck and back injuries following the accident. Major Weinrich stated that, although he was unaware of Captain Joslyn's current condition, he "believe[d] the accident may have caused injuries that now affect [Captain Joslyn's] ability to perform his current duties . . . ." J.A. 133. A memorandum from Lieutenant Colonel Baker was also included, in which he noted that Captain Joslyn, while no longer working at the University of Texas at Arlington, "has the current ability to perform the duties normally expected of a junior Captain in the U.S. Army." J.A. 76. Lieutenant Colonel Baker's memorandum was also forwarded to the Army psychiatrist who initially evaluated Captain Joslyn. After reviewing Lieutenant Colonel Baker's letter, the psychiatrist nevertheless maintained her conclusion that Captain Joslyn did not meet retention standards, and submitted a memorandum to the PEB so stating.
In May 2008, an informal PEB concluded that Captain Joslyn was fit for duty. He then requested a formal hearing. Captain Joslyn's request was granted, and he appeared before a formal PEB. The record of the PEB proceedings notes [Captain Joslyn's] record demonstrates that he has performed his duties in a satisfactory manner during the entire timeframe that he has had the symptoms of PTSD, low back pain, and left knee pain. His OERs and Commander's letter show no adverse impact on his performance. Although [Captain Joslyn] states that he has no responsibilities other than to check on the supply room, this is not unexpected since he put in his resignation in May 2007 . . . .
J.A. 57. The PEB issued its final determination on July 1,
2008, again finding Captain Joslyn fit for duty. In rebuttal, Captain Joslyn submitted two additional memoranda, both from Major (Retired) Ricardo Diaz, Commandant of Cadets at the University of Texas at Arlington. Major Diaz identified numerous deficiencies in Captain Joslyn's performance, and concluded ...