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Havens v. Mabus

United States District Court, D. Columbia

November 25, 2015

WILLIAM HAVENS, Plaintiff,
v.
RAY MABUS, Secretary of the Navy; Chairman, Board for Correction of Naval Records, Defendant

          For William Havens, Plaintiff: John B. Wells, LEAD ATTORNEY, LAW OFFICES OF JOHN B. WELLS, Slidell, LA USA.

         For Raymond Edwin Mabus, Jr., Secretary of the Navy; Chairman, Board for Corrections of Naval Records, Defendant: Wynne Patrick Kelly, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC USA.

         MEMORANDUM OPINION

         AMY BERMAN JACKSON, United States District Judge.

         This case comes before the Court on remand from the U.S. Court of Appeals for the District of Columbia Circuit. Plaintiff William Havens, a retired Navy Reserve officer who suffers from psoriatic arthritis, was transferred from active duty to non-active duty in 1996 because he had not been promoted in two consecutive years. In 2002, he was transferred to the retired reserve, because he had been found not physically qualified to perform his duties as a reservist in 2001. In 2000 and 2002, Havens requested that the Board for Correction of Naval Records (" the Board" ) correct his military record: the first time he maintained that he should have been offered early disability retirement in 1996, and the second time he took the position that the Navy was either wrong when it found him fit in 1996 or it was wrong when it found him not physically qualified in 2001 because his condition was the same at both times. The Board denied plaintiff's two requests for correction and four later requests for reconsideration.

         Plaintiff challenged these denials under the Tucker Act in the Court of Federal Claims. That court dismissed his case on the grounds that the statute of limitations under the Tucker Act had run, and the U.S. Court of Appeals for the Federal Circuit affirmed. Plaintiff then sued in this Court under the Administrative Procedure Act (" APA" ), seeking an order that defendant correct his record to reflect that he should have been medically retired. On September 26, 2012, the Court dismissed the action on res judicata grounds, given the prior court rulings. On July 25, 2014, the U.S. Court of Appeals for the D.C. Circuit reversed the dismissal on those grounds. It ruled that four of plaintiff's requests were time-barred under the APA statute of limitations, and remanded the remaining two for further review.

         The two claims remanded to the Court challenge the Board's denial of plaintiff's 2002 request for correction and its denial of his request for reconsideration of that denial. After the remand, the parties filed cross-motions for summary judgment. The Court will grant defendant's motion and deny plaintiff's motion because the Court finds that the two Board decisions at issue were not arbitrary, capricious, an abuse of discretion, contrary to law, or unsupported by substantial evidence.

         BACKGROUND

         Commander Havens is a retired naval officer who served on active duty in the United States Navy Reserve from March 1980 until August 1996.[1] Certificate of Release or Discharge from Active Duty, Administrative Record [Dkt. # 4] (" AR" ) 26. He seeks review under the Administrative Procedure Act, 5 U.S.C. § 702, of the Board's denials of his requests to change his naval record under 10 U.S.C. § 1552. Am. Compl. [Dkt. # 13] at 1, 16-17.

         I. The Governing Statute and Regulations

         Pursuant to 10 U.S.C. § 1216, the Secretary of the Navy is responsible for " separating or retiring" service members who are unable " to continue naval service because of physical disability." Instruction 1850.4D, Secretary of the Navy (1998), at 10-1.[2] The Secretary evaluates service members' disabilities through the Navy's Disability Evaluation System. If a physician determines that a service member " is unable to perform full military duty or unlikely to be able to do so within a reasonable period of time," a Medical Evaluation Board (" MEB" ) evaluates the member and determines if further evaluation is required. Id. at 10-2. If so, the MEB refers the service member to an informal Physical Evaluation Board (" PEB" ). Havens v. Mabus, 759 F.3d 91, 93, 411 U.S.App.D.C. 282 (D.C. Cir. 2014).

         If the service member is on active duty, the informal PEB determines whether the member is " fit" or " unfit" to continue service. Instruction 1850.4D § 4211a. If the member is on non-active duty status, it determines whether the member is " physically qualified" or " not physically qualified" to continue service. Id. § 4221b; see also § 2054 (providing that the " Not Physically Qualified (NPQ) For Continued Naval Service" disposition applies " 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" ).

         Both standards consider whether a member is able to perform " the duties of his or her office, grade, rank or rating," but the difference between the two inquiries turns upon whether the disabling condition was incurred while the member was on active duty or not. Compare Instruction 1850.4D at 1-2, with 1850.4D at 2-16; see also Havens, 759 F.3d at 93 n.4. A disability incurred on active duty that prevents a member from performing his or her duties would result in an " unfit" determination, and the member would be entitled to disability retirement benefits. See 10 U.S.C. § 1201(a) (providing that to be eligible for disability retirement, a member's physical disability must be " incurred while entitled to basic pay" ); id. § 1201(b) (requiring a member with less than 20 years' service to have a disability that " was incurred in line of duty" ).

         A disability incurred while on non-active duty status that prevents a member from performing his or her duties as a reservist would lead to a " not physically qualified" finding, and the member would be discharged. Havens, 759 F.3d at 93 (explaining that an informal PEB determines whether an active duty service member is " fit" or " unfit" to continue service, while it determines whether a non-active duty reservist is " physically qualified" or " not physically qualified" to continue service). Accordingly, the member would not be entitled to disability retirement benefits. 10 U.S.C. § 1201(a), (b).

         In explaining the term " fit," Navy regulations state that " the mere presence of a diagnosis is not synonymous with a disability. It must be established that the medical disease or condition underlying the diagnosis actually interferes significantly with the member's ability to carry out the duties of his or her office, grade, rank or rating." Instruction 1850.4D § 2032. And in explaining when a service member is entitled to disability retirement benefits, the regulations provide that the definition of " '[w]hile entitled to receive basic pay' . . . shall not be construed to entitle any member not on active duty, who, at the time of separation from active duty was considered Fit to continue naval service, to benefits under 10 U.S.C., Chapter 61, because of an increase in impairment occurring while the member was not entitled to basic pay." Id. § 2038b. In other words, a service member deemed " fit" for active duty upon separation from the Navy does not become entitled to disability retirement benefits because his or her condition later worsens while on non-active duty status.

         II. Plaintiff's Naval Service and Medical History

         Plaintiff began his service as an active duty member in March 1980 and spent most of his career performing training and administration for the Navy Reserve. Certificate of Release or Discharge from Active Duty, AR 26. He began experiencing health issues in 1995 while on active duty. Memorandum from M.L. Culver, Dir., Sec'y of Navy Council of Review Boards (" CORB" ) to Exec. Dir., Board (March 22, 2006) (" CORB First Adv. Op." ), AR 97-101 (reporting " persistent painful swollen Left dominant 4th finger DIP" and " Right great toe onycholysis," a two year history of " intergluteal skin rash," as well as fevers and fatigue in late 1995). In February 1996, Dr. Kevin Craig at Treasure Island Naval Base diagnosed plaintiff with psoriatic arthritis. CORB First Adv. Op. at AR 97; Medical Records, Feb. 6, 1996, AR 183-84.

         A. In 1996, plaintiff was removed from active duty and transferred to non-active duty because he was not promoted for two consecutive years.

         In August 1996, six months after plaintiff received Dr. Craig's diagnosis, the Reserve released him from active duty and moved him to non-active reserve duty[3] because he had failed to be promoted twice. See 10 U.S.C. § 14506.

         In September 1996, as part of his separation from the Reserve, plaintiff underwent a physical examination. Medical Examination (Sept. 9, 1996), AR 171-172. The doctor noted that plaintiff was treated for psoriatic arthritis but was " found fit for full duty and qualified for separation/retirement/transfer to Fleet Reserve during retirement physical on 27 Jun 96." Id. at 172. And plaintiff described himself at that time as in " good health and in good shape." Letter from W. Dean Pfeiffer, Exec. Dir., Board to William Havens (June 13, 2000) (" First Denial" ), AR 154-55, at AR 154. The Reserve released plaintiff from active duty with separation pay and assigned him to non-active reserve duty. Pl.'s Opp. to Def.'s Mot. and Cross-Mot. for Summ. J. [Dkt. # 36-2] (" Pl.'s Opp." ) at 8; Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. [Dkt. # 33] (" Def.'s Mem." ) at 2; Letter from Dep't of Veterans Affairs to William Havens (Sept. 24, 1997), AR 168-70, at AR 169.[4]

         B. From 1997 to 2000, plaintiff was found " physically qualified" for non-active reserve duty.

         From 1997 to early 2000, plaintiff was regularly found to be " physically qualified" for his duties as a non-active duty reservist. See Letter of Pl.'s Counsel to Board, June 2, 2005 (" Pl.'s June 2, 2005 Letter" ), AR 18-22, at AR 19; see also Am. Compl. ¶ ¶ XXXIV, XLV, LII, LVI (stating that plaintiff was found " physically qualified" in January 1997, January 1998, January 1999, and January 2000).

         The administrative record reflects that during the 2000s, the Navy began to focus more attention on plaintiff's physical qualification for duty, but the reports were not always consistent. In late May or early June of 2000, Havens was placed in a " not physically qualified" status due to his psoriatic arthritis. Memorandum from J.F. Lowder to Commanding Officer, Naval Air Reserve Center San Jose (June 2, 2000) (" Lowder June 2000 Mem." ), AR 149; Am. Compl. ¶ LVIII. A few months later, an October 21, 2000 physical exam recommended " Board Review for 'Psoriatic arthritis' history" and noted " swelling DIP joint Left 4th finger" and " swelling 1st & 2nd toes bilaterally." CORB First Adv. Op. at AR 98. A March 11, 2001 report stated that his " arthritis limit[ed] time standing and grasping of heavy objects with left hand," but that the condition " had not required time away from duties for treatment/evaluation/recuperation." Id. An April 21, 2001 physical exam found plaintiff not physically qualified, but two months later, on June 13, 2001, an informal PEB found him physically qualified for reserve duty. Id.

         C. In 2002, plaintiff was finally determined " not physically qualified" and transferred to the retired reserve.

         The next month, on July 7, 2001, Havens's commanding officer J.F. Lowder requested guidance from the Navy's PEB because " Havens contends that his arthritis causes pain, prevents him from standing for moderate periods of time and that he has great difficulty descending stairs." Memorandum from Commanding Officer, Naval Air Reserve Center, San Jose to President, PEB (Jul. 7, 2001), AR 111. On July 9, 2001, Dr. Mary Nakamura, a rheumatologist, evaluated plaintiff and described his condition as follows:

[P]soriatic arthritis. His symptoms began in September 1995. Since that time he has had a series of symptoms including arthritic complaints in the hands, ankles, feet, and low back. Until recently, his symptoms were limited and treated with regular doses of NSAIDS. His low back pain has persisted for four years. He also cites intermittent recurrent pain and swelling of the joints in the regions described above. . . . Beginning in May 2001, he developed worsening right ankle pain [and] . . . continues to have difficulty with ambulation. Over the next 6 months . . . [he] should not engage in activities requiring prolonged or rapid ambulation.

         CORB First Adv. Op. at AR 99-100.

         Thereafter, on July 19, 2001, the informal PEB found plaintiff " not physically qualified" to continue service. Id. at AR 98. On January 2, 2002, the formal PEB issued its notification of decision, finding plaintiff " not physically qualified" for service, Not. of Decision (Jan. 2, 2002), AR 126, and Havens was notified that he was eligible for transfer to the retired reserve. Memorandum from Commander, Navy Personnel Command to William Havens (Jan. 3, 2002), AR 125. On March 1, 2002, plaintiff was transferred to the retired reserve. Am. Compl. ¶ LXXXIV.

         III. Plaintiff's Administrative Appeals

         A. Request #1: 1999 Application to Correct Military Record

         In November 1999, while he was still a non-active duty reservist, plaintiff applied to the Board to request that his " separation for twice failure of selection (FOS) to next higher paygrade be reversed" because he should have been offered early disability retirement based on his medical condition. See Memorandum from William Havens to Board (Nov. 11, 1999), AR 162; Application of William Havens (Nov. 29, 1999), AR 167.

         On June 13, 2000, the Board denied plaintiff's application. First Denial, AR 154-55. It concluded that plaintiff's medical records as of the time of his transfer in 1996 indicated that even though plaintiff was experiencing certain medical conditions upon discharge, they did not render him unfit for duty. Id. The Board noted that Havens described himself as in " good health and in good shape," and that no medical authority recommended that plaintiff be retained on active duty for further evaluation and treatment by a medical board. Id. at AR 154. As for plaintiff's forty percent VA disability rating, the Board stated " that 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." Id. But " the military departments do not award ratings based on the mere presence of conditions listed in the VA Schedule for Rating Disabilities. The military departments may rate only those considerations which render the service member unfit to perform the duties of his office, grade, rank or rating." Id. Because Havens's fitness for duty was not in question in 1996, he was not referred to the Disability Evaluation System. Id. at AR 154-55.

         The Board further stated that the recent 2000 determination that he was " not physically qualified (NPQ) for service in the Naval Reserve ha[d] no bearing on the issue of [his] fitness [for] duty in 1996." Id. at AR 155. Indeed, the Board stated that " [t]he NPQ finding was perplexing" given plaintiff's statement that his condition had not changed since he was released from active duty. Id. The Board denied his application, finding that " the evidence submitted was insufficient to establish the existence of probable material error or injustice." Id. at AR 154.

         B. Request #2: First Request for Reconsideration of the 1999 Application

         Plaintiff requested reconsideration of the Board's decision in August 2001. Memorandum from William Havens to Board (Aug. 2001), AR 148-52. In support of his request, Havens submitted the June 2, 2000 letter from his commanding officer stating he had been placed in a not physically qualified status because of psoriatic arthritis, Lowder June 2000 Mem., AR 149, and the PEB decision of July 19, 2001 that found him " Unfit" and " Not Physically Qualified to Continue Reserve Status" due to psoriatic arthritis which " may be permanent" but " not a proximate result of performing military duty." PEB Findings (July 19, 2001), AR 150.

         On August 20, 2001, the Board rejected plaintiff's request for reconsideration because it found that plaintiff had submitted no new material evidence but instead simply cited to inapplicable Department of Defense (" DOD" ) instructions. Letter from W. Dean Pfeiffer, Exec. Dir., Board to William Havens (Aug. 20, 2001) (" Second Denial" ), AR 147. The Board explained that the instructions did not apply for two reasons. First, it held that any member not on active duty, who was considered fit to continue naval service at the time of separation from active duty, was not entitled to disability retirement as the result " of an increase in impairment occurring while the member was not entitled to basic pay." Id., citing Instruction 1850.4D § 2038b. Second, the Board stated that although " [i]t appears that your conditions were incurred while you were on extended active duty prior to your transfer to the Naval Reserve, . . . you have not alleged that your conditions became more severe while you were entitled to basic pay following your release from active duty in 1996," so further review was not warranted. Id.

         C. Request #3: Second Request for Reconsideration of the 1999 Application

         Havens then submitted a second request for reconsideration.[5] Pl.'s Req. for Reconsideration, AR 137-45. This request included a letter dated September 26, 2001 from Dr. Craig, the physician who first diagnosed plaintiff in 1996 with psoriatic arthritis and found him qualified for duty. Letter from Dr. Kevin Craig to Dep't of the Navy (Sept. 26, 2001) (" Craig Letter" ), AR 139. Dr. Craig stated that plaintiff asked him to " comment on his being found not physically qualified for duty due to his diagnosis of psoriatic arthritis." Id. Dr. Craig reviewed plaintiff's medical record as of 2001 and found " no evidence that his disease ha[d] significantly progressed" since the 1996 diagnosis, and concluded that plaintiff's condition was stable and had " not manifestly changed." Id. (" I feel that at the time of his physical exam on 21 Oct 00 he was manifesting an exacerbation of his disease, which is both typical and expected of this disease, and is not representative of a worsening of his arthritis. The natural course of exacerbation and regression of symptoms in individuals with psoriatic arthritis was known at the time of his separation in 1996 . . . . " ). Dr. Craig stated that if plaintiff was not physically qualified at that time in 2001, he should have been found unfit for duty in 1996, and alternatively, if plaintiff was fit for duty back in 1996, " he should be found physically qualified now." Id. Based on all of those circumstances, he concluded that plaintiff's " status in the reserves should be adjudicated under active duty provisions only." Id.

         The Board considered the new letter from Dr. Craig, but it denied plaintiff's second request for reconsideration on October 29, 2001, explaining that although plaintiff had provided new material, " it does not tend to prove that [] you were unfit to perform the duties of your office, grade, rank or rating prior [to] your release from active duty on 1 September 1996." Letter from W. Dean Pfeiffer, Exec. Dir., Board to William Havens (Oct. 29, 2001) (" Third Denial" ), AR 136. It concluded:

Although psoriatic arthritis can be a serious disease process, it was manifested in your case by fatigue, reduced exercise tolerance, and pain in a finger and two toes, which ...

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