United States District Court, D. Columbia
William Havens, Plaintiff: John B. Wells, LEAD ATTORNEY, LAW
OFFICES OF JOHN B. WELLS, Slidell, LA USA.
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.
BERMAN JACKSON, United States District Judge.
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.
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.
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
Havens is a retired naval officer who served on active duty
in the United States Navy Reserve from March 1980 until
August 1996. 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.
The Governing Statute and Regulations
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. 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.
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" ).
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" ).
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).
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.
Plaintiff's Naval Service and Medical History
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.
In 1996, plaintiff was removed from active duty and
transferred to non-active duty because he was not promoted
for two consecutive years.
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 because he
had failed to be promoted twice. See 10 U.S.C.
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.
From 1997 to 2000, plaintiff was found " physically
qualified" for non-active reserve
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).
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.
In 2002, plaintiff was finally determined " not
physically qualified" and transferred to the retired
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.
First Adv. Op. at AR 99-100.
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.
Plaintiff's Administrative Appeals
Request #1: 1999 Application to Correct Military
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.
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.
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.
Request #2: First Request for Reconsideration of the 1999
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.
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.
Request #3: Second Request for Reconsideration of the 1999
then submitted a second request for
reconsideration. 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
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