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Fulbright v. McHugh

United States District Court, D. Columbia.

September 9, 2014

JAMES DANIEL FULBRIGHT, Plaintiff,
v.
JOHN M. MCHUGH, Secretary, United States Army, Defendant

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For JAMES DANIEL FULBRIGHT, Plaintiff: Michael D.J. Eisenberg, LAW OFFICES OF MICHAEL D.J. EISENBERG, Washington, DC.

For JOHN M. MCHUGH, Defendant: Wayne Holden Williams, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.

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MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge.

For 25 years, plaintiff James Fulbright has sought retroactive disability retirement from the Army based on injuries he suffered while in service. In this suit under the Administrative Procedures Act (" APA" ), he challenges a 2009 decision by the Army Board for Correction of Military Records denying, for the second time, his request for disability retirement status. The Secretary of the Army has moved to dismiss and both parties have moved for summary judgment. In his motion to dismiss, the Secretary argues that a prior ruling by the Court of Federal Claims (" CFC" ) that Fulbright's claims were barred by the Tucker Act's statute of limitations precludes his APA claims here; that Fulbright's claims are separately barred by the APA's statute of limitations; and that Fulbright may not sue in this Court under the APA because he could have received the relief he seeks in his Tucker Act case before the CFC. The Court will deny the Secretary's motion to dismiss. Fulbright's APA suit is not precluded by the CFC's prior decision because the Tucker Act's statute of limitations operates differently than the APA's, and the latter had not expired when Fulbright brought this suit. Moreover, the CFC could not have provided Fulbright the relief he seeks in this action because he solely requests injunctive relief, which the CFC can only grant ancillary to monetary damages.

The Court also concludes, however, that the board's decision denying Fulbright's request for disability benefits was adequately reasoned and based on sufficient evidence. It will, therefore, grant the Secretary's motion for summary judgment and deny Fulbright's.

I. Background

A. Regulatory Background

Military disability retirement entitles former servicemembers to receive increased retirement pay and other enhanced benefits relative to standard retirement. See Smalls v. United States, 471 F.3d 186, 190, 374 U.S.App.D.C. 63 (D.C. Cir. 2006). Qualifying for disability retirement, however, is no small task. Military regulations establish a complex web of procedures for obtaining disability benefits after leaving active service. While the bulk of these regulations need not be discussed here, a brief summary of the pertinent rules may aid in understanding the facts and legal issues involved in this case.

Obtaining disability retirement from the Army, where Fulbright served, begins with an examination of the soldier by an Army medical examiner. See Army Reg. 635-40 ¶ 4-9. The medical examiner diagnoses the servicemember's medical conditions and makes a determination as to whether he is medically qualified to perform his particular duties. Id. If the medical examiner finds the soldier fit for duty, then he is not eligible for disability retirement. If the medical examiner finds the soldier unfit for duty--or if the servicemember suffers from certain enumerated conditions--the Army will convene a Medical Evaluation Board (" MEB" ) to review the medical examiner's diagnosis and fitness determination. Id. ¶ ¶ 4-9, 10; see also Army Reg. 40-501 Ch. 3. If the MEB concludes that the soldier is unfit for duty due to his or her diagnosed conditions, the Army may convene yet another board--a Physical Evaluation Board (" PEB" )--to review the MEB's findings. Army Reg. 635-40 ¶ 4-13. The PEB conducts a more thorough investigation into the nature and permanency of the servicemember's condition and makes independent findings as to whether the service

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member is fit for duty and qualifies for disability retirement.[1] Id. ¶ ¶ 4-17, 19. If the PEB determines that a soldier qualifies for disability retirement, it assigns a disability percentage rating based on the Department of Veterans Affairs' Schedule for Rating Disabilities. Id. ¶ ¶ 3-5, 4-19 i. The assigned disability rating affects the level of benefits a disabled soldier will receive.[2] See id. PEB disability retirement recommendations are reviewed by the Army Physical Disability Agency (" APDA" ), Id. ¶ 4-24, within the Army Human Resources Command. See U.S. Army Human Resources Command Website, www.hrc.army.mil/TAGD/US%20Army%20Physical%20Disability%20Agency. Only upon acceptance of a PEB recommendation by the APDA will a servicemember become eligible to receive disability retirement benefits.

Among several avenues of appeal open to a servicemember throughout this extensive process, he may, within three years of the relevant decision, request that the Army Board for Correction of Military Records (" ABCMR" or " board" ) review an adverse disability retirement determination. Army Reg. 635-40 ¶ 2-12. The ABCMR will review the determination for " error or injustice." Id.

B. Factual Background

James Fulbright joined the United States Army as an infantryman in 1974 and went on to serve in the military police branch, first as a second lieutenant and eventually as a captain. Administrative Record (" AR" ) 193-95, 202. Our story begins in 1978, when Fulbright fractured his right ankle and sprained his left ankle and knee in a parachuting accident. Id. at 187. He aggravated his left knee sprain the next year. Id. As a result of these injuries, Fulbright was placed on restricted duty and prohibited from parachute jumping and running more than half a mile. Id. at 139.

Over a decade later, in 1989, Fulbright was passed over for promotion to major for a second time. Id. at 199. The decision not to promote Fulbright was apparently unrelated to his injuries; the Army based the decision on his overall performance and the limited slots available. Id. Because Army regulations require release from active service after missing promotion twice, Fulbright was honorably discharged from active duty " not by reason of physical disability" and transferred to inactive ready reserve status later that year. Id. at 197-99.

As required by regulation, Fulbright underwent an Army medical exam before his release from active duty. Id. at 140-41. He was diagnosed with lower back pain, chondromalacia patella (inflammation of the knee), a history of traumatic separation in both shoulders, and left foot trauma. Id. The examiners pronounced Fulbright physically fit, albeit with some limitations to his day-to-day activities. Id.; see also Army Reg. 40-501 ¶ 7-3. The medical examiner's assessment was consistent with the one Fulbright received after his parachuting accident in 1978. AR 139. In 1990, a year after his separation

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from active duty, Fulbright applied for, and the VA awarded him, service-connected disability compensation at a rating of 50 percent based on the same injuries that were diagnosed in his Army separation exam, in addition to hypertension. Id. at 167-68. The VA and Army have distinct systems for awarding disability benefits, neither of which is binding on the other. See, e.g., Rudo v. Geren, 818 F.Supp.2d 17, 23 n.4 (D.D.C. 2011).

The same year, Fulbright requested that the Army Reserve Personnel Center initiate a MEB to transfer him from the inactive ready reserve group and designate him as medically retired. AR 93-95. The Army declined his request for a MEB, but, in contrast to his 1989 separation examination that found him fit for active duty, the Army agreed that Fulbright did not meet the standards for retention in the inactive reserves due to the injuries to his right ankle. Id. at 102. Fulbright apparently was not given the option of disability retirement, however, and instead elected to transfer to the retired reserves while continuing to maintain that he should be eligible for disability retirement. Id. at 96.

In 1992, Fulbright applied to the ABCMR for a record correction, arguing that his 1989 separation medical examination and subsequent VA diagnosis demonstrated that he should have received medical disability retirement when he was released from active duty. Id. at 183. The ABCMR denied his request, finding that Fulbright had been physically fit for duty at the time of his separation from active duty service. The board based its finding on the 1989 separation examination--which, as previously noted, found Fulbright fit for service--as well as a letter to the board from the Office of the Surgeon General indicating that Fulbright " met retention standards at the time of discharge and an MEB was not warranted." Id. at 183-84, 187.[3] The board concluded further that the VA's 50 percent disability rating was not binding on the ABCMR because the VA does not assess a servicemember's fitness for duty when determining eligibility for its separate system of retirement benefits. Id. at 186. The ABCMR accordingly found that there was no evidence to support Fulbright's contention that his injuries prevented him from performing his duties when relieved from active duty in 1989. Id. at 185.

After first petitioning the Army Human Resources Command, Fulbright found himself back before the ABCMR fifteen years later, in 2008. He argued that the board's 1992 decision denying his request for an MEB had been erroneous and that he should have been promoted to major from the inactive reserves in 1990. Id. at 76. Waiving its three-year statute of limitations in the interest of justice, the ABCMR agreed with Fulbright that he should have been awarded a promotion to major while in the reserve group. Id. at 77. It did so primarily because Human Resources Command found that Fulbright was not promoted to major in 1990 only because of an administrative error: The Office of Promotions had not received Fulbright's 1989 medical examination that showed him fit for duty. Id. at 87-88. As to his ...


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