United States District Court, District of Columbia
CARLOS A. MORENO, Plaintiff,
RICHARD V. SPENCER, in his official capacity as SECRETARY OF THE NAVY, Defendant.
N. MCFADDEN, UNITED STATES DISTRICT JUDGE.
Carlos Moreno, a service member in the United States Marine
Corps, filed for judicial review of the
Government's denial of his claim for benefits under the
Servicemembers Group Life Insurance Traumatic Injury
Protection Program (“TSGLI”). Compl. ¶¶
1, 15, ECF No. 1. The Government seeks summary judgment,
arguing that the adjudication of Mr. Moreno's claim was
not arbitrary, capricious, or otherwise contrary to law under
the Administrative Procedure Act (“APA”), 5
U.S.C. § 701 et seq. Mem. of P. & A. in
Supp. of Def.'s Mot. for Summary J. (“Def.'s
Mot. for Summary J.”) 1, ECF No. 9-1. Upon
consideration of the pleadings, relevant law, related legal
memoranda in opposition and in support, and the entire
record, the Court finds that the Government's
determination that Mr. Moreno did not present evidence
sufficient to prevail on his claim is supported by the
record. Accordingly, the Government's motion will be
December 3, 2012, while on active duty, Mr. Moreno's
right foot was run over by a M777 Howitzer tire, fracturing
several of his metatarsal bones. A.R. 97, 107. The following
day, he underwent surgery which placed metal pins on his
foot. A.R. 97. Immediately after surgery, he wore a splint
and was ordered to not bear any weight on his right foot.
Id. On December 11, 2012, he transitioned to wearing
a short leg cast and using crutches. Id.
Approximately two months after surgery, the pins were removed
and Mr. Moreno began using a cast boot with crutches. A.R.
354. His prognosis was “poor with regard to return[ing]
to active duty” and a treatment note stated that
“his care at this point is to provide him with a foot
he can ambulate with minimal or no pain. I don't expect
he will ever be able to run distances again or do heavy labor
without some foot pain.” Id. On March 14,
2013, a treatment note documented that Mr. Moreno was able to
ambulate independently at 50% weight bearing with crutches.
A.R. 356. Notes from physical therapy sessions on March 19,
2013; March 27, 2013; April 2, 2013; April 13, 2013; and
April 22, 2013, indicate that Mr. Moreno ambulated into the
clinic with crutches and/or a controlled ankle movement boot.
30, 2013, Mr. Moreno submitted an application to the Marine
Corps for TSGLI benefits for the amount of $100, 000,
representing 120 consecutive days of loss of activities of
daily living (“ADL”). A.R. 421. The TSGLI
provides lump-sum payments for service members who sustain,
among others, a traumatic injury that leads to an
“inability to independently perform two or more”
of activities of daily living, which include bathing,
continence, dressing, eating, toileting, and transferring. 38
U.S.C. § 1980A; 38 C.F.R. § 9.20(e)(7). A service
member's losses must be sustained for at least 30
consecutive days, which is compensated with a $25, 000 lump
sum payout; each additional 30 consecutive day loss period
warrants an incremental $25, 000 payment with the total
potential payout capped at $100, 000 for 120 consecutive days
of the inability to carry out ADLs. 38 C.F.R. §
9.20(e)(7). Claims are initially submitted to the service
member's branch of service, and may be administratively
appealed up to three times. Def.'s Mot. for Summary J.
7-8. Mr. Moreno claimed that he was unable to independently
bathe and dress between December 3, 2012 and April 19, 2013.
A.R. 327. Dr. Dennis Hopkins, who did not treat Mr. Moreno
but reviewed his medical records, signed the portion of the
benefits application requiring a medical professional
statement. A.R. 329.
Moreno's claim was denied on August 6, 2013 as the
“medical documentation d[id] not support [Mr.
Moreno's] inability to perform ADLs for 30 days.”
A.R. 405-07. The letter explained that TSGLI benefits accrue
when applicants are “unable to independently perform at
least two activities of daily living (ADL)s for at least 30
consecutive days. The claimant is considered unable
to perform an activity independently only if he or she
requires at least one of the following, without
which they would be incapable of performing the
task: physical assistance (hands-on), stand-by assistance
(within arm's reach), verbal assistance (must be
instructed).” A.R. 405. This decision was appealed
within the service branch, known as a claim
“reconsideration, ” on October 24, 2013 and was
denied on December 12, 2013. A.R. 19-20, 23-38. The denial
letter stated that “[t]he available medical
documentation did not support that [Mr. Moreno] had at least
two Activities of Daily Living (ADLs) for 120 days.”
Moreno appealed the decision to the second level of
administrative review, the TSGLI Appeals Board of the Navy
Council of Review (“Appeals Board”). A.R. 9-11.
In support of his inability to perform at least two ADLs, he
presented a letter from his wife, Kathleen Moreno. A.R. 14.
In her letter, Mrs. Moreno described that in the weeks after
his surgery, she observed through videoconference Mr. Moreno
“struggle to get up and get to the restroom as well as
try to figure out how to get food for two weeks” and
that “[s]howering was not even possible as he was
unable to stand.” Id. She also described that
once he returned home on February 26, 2013, he
“required help undressing to use the restroom as well
as redressing when he finished. He required assistance
positioning his leg/foot as he sat on the toilet. . . . He
also required help getting in and out of the shower as well
as washing his lower extremities. I also assisted my husband
in getting dressed as he was unable to get pants on by
himself.” Id. She also stated that he was
“unable to prepare his own food” and
“unable to move around freely as he was still on
crutches.” Id. On December 22, 2015, citing a
preponderance of the evidence standard, the Appeals Board
denied the appeal because the “evidence does not
support that Sergeant Moreno required assistance for two ADLs
for a period of 120 days or more.” A.R. 2-6. Mr. Moreno
appears to not have appealed to the third level of
administrative review and instead filed suit in this Court.
Administrative exhaustion is not required for judicial review
under the APA for a service member's TSGLI claim.
See 38 U.S.C. § 1975 (granting any district
court of the United States with original jurisdiction over
TSGLI claims); 38 C.F.R. § 9.20 (i)(3) (“Nothing
in this section precludes a member from pursuing legal
remedies under 38 U.S.C. 1975 and 38 C.F.R. 9.13”);
Traumatic Injury Protection Under Servicemembers'
Group Life Insurance (TSGLI): A Procedural Guide
(version 2.41; Jan. 5, 2018) (“In addition to utilizing
the administrative appeals process, members have the right to
file suit in federal court to contest an adverse TSGLI
decision.”); see also Def.'s Reply in
Supp. of Mot. for Summary J. (“Def.'s Reply”)
2, ECF No. 12.
cases reviewing agency action under the APA, motions for
summary judgment are not analyzed under Federal Rule of Civil
Procedure 56 “because of the court's limited role
in reviewing the administrative record.” Coe v.
McHugh, 968 F.Supp.2d 237, 239 (D.D.C. 2013). In APA
cases, the Court must decide, “as a matter of law,
whether the agency action is supported by the administrative
record and otherwise consistent with the APA standard of
review.” Id. at 240. The APA requires that the
Court “set aside agency action, findings, and
conclusions” that are, inter alia,
“arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. §
706(2). Judicial review under the arbitrary or capricious
standard requires the Court to determine “whether there
is ‘such relevant evidence as a reasonable mind might
accept as adequate to support' the agency's
finding.” United Steel, Paper & Forestry,
Rubber Mfg., Energy, Allied Indus. & Serv. Workers
Int'l Union v. PBGC, 707 F.3d 319, 325 (D.C. Cir.
2013) (quoting Consolo v. Fed. Mar. Comm'n, 383
U.S. 607, 620 (1966)); see also Ass'n of Data
Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed.
Reserve Sys., 745 F.2d 677, 683 (D.C. Cir. 1984)
(“[I]n their application to the requirement of factual
support the substantial evidence test [of 5 U.S.C. §
706(2)(E)] and the arbitrary and capricious test [of 5 U.S.C.
§ 706(2)(A)] are one and the
same.”). Stated another way, courts reviewing for
substantial evidence “do not ask whether record
evidence could support the petitioner's view of the
issue, but whether it supports the [agency's] ultimate
decision.” Florida Gas Transmission Co. v.
FERC, 604 F.3d 636, 645 (D.C. Cir. 2010).
various points in their briefs, both Mr. Moreno and the
Government advocate that other standards should apply. The
Government notes that this Circuit uses “an unusually
deferential application of the arbitrary or capricious
standard of the APA” when reviewing decisions by
military review boards for the correction of military
records. Def.'s Mot. for Summary J. 10. But the cases the
Government cites in support--and the cases cited therein--do
not involve decisions about TSGLI benefits. See,
e.g., Piersall v. Winter, 435 F.3d 319, 324
(D.C. Cir. 2006) (review of non-judicial punishment);
Kreis v. Sec'y of Air Force, 866 F.2d 1508, 1514
(D.C. Cir. 1989) (review of decision whether to alter a
military record); Havens v. Maybus, 146 F.Supp.3d
202, 214-15 (D.D.C. 2015) (same). Neither party here offers
any authority that decisions about TSGLI benefits should
receive this “unusually deferential” treatment,
and on that basis, this Court will not employ it. See
Hensley v. United States, 2018 WL 1036361, at *6 (D.D.C.
Feb. 22, 2018) (applying the “traditional”
arbitrary or capricious standard of review to a claim for
Moreno claims that the agency failed to use a preponderance
of the evidence standard to evaluate his claim, id.
at 11-12, but also goes further to argue that the “true
standard applicable” is actually a lesser
“substantial evidence” standard. Id. at
12. According to Mr. Moreno and the primary case on which he
relies, Yearwood v. United States, 125 F.Supp.3d
1204, 1216 (N.D. Ala. 2015), substantial evidence is
“something more than a mere scintilla but less than a
preponderance. Once the claimant meets this
substantial-evidence burden, he is entitled to the benefit of
the doubt as to every matter on which the evidence is in
‘approximate balance'.” Pl.'s Opp'n
at 12-13 (citing 38 U.S.C. § 5107(b), which requires the
Secretary to “give the benefit of the doubt to the
claimant” when evidence is in equipoise). But as Mr.
Moreno's counsel well knows, when issues are not first
raised to the agency during the administrative process, they
need not be considered during judicial review of agency
action. See, e.g., Coker v. United States,
2016 WL 7242727 at *5 (W.D. Ky. Dec. 14, 2016) (employing the
administrative waiver doctrine against considering the
“benefit of the doubt” argument advanced by the
same counsel representing Mr. Moreno); see also Advocates
for Highway and Auto Safety v. Fed. Motor Carrier
Admin., 429 F.3d 1136, 1149 (D.C. Cir. 2005) (discussing
the administrative waiver doctrine). The Government disputes
that the “benefit of the doubt” rule applies to
TSGLI benefits cases. Def.'s Reply 5. Because it has not
been presented to or deliberated by the agency, this Court
will not consider Mr. Moreno's argument that the agency
erred in applying the wrong standard to evaluate his claim.
established that the proper standard for judicial review in
this TSGLI benefits case is the traditional arbitrary or
capricious test, the Court turns to Mr. Moreno's
substantive argument that the agency's decision was
“taken in direct disregard” of his wife's
letter, the medical certification signed by Dr. Hopkins, and
his medical records. Pl.'s Opp'n 16-21. Mr. Moreno
asserts that his wife's statement provides percipient
evidence that Mr. Moreno suffered loss of ADLs. Id.
at 19. He further argues that the certification by Dr. Dennis
Hopkins, a physician who reviewed his medical records,
“speaks for itself” that Mr. Moreno suffered more
than 120 days of loss of ADLs because Dr. Hopkins attested to
it. Id. at 16. As for his medical records, Mr.
Moreno argues that they are “unlikely to contain, on
any consistent basis, entries that document lack of ability
to perform ADLs.” Id. at 17. Because of this,
Mr. Moreno asks the Court to infer that he was
“incapable of safely performing his activities of daily
living of bathing and dressing without physical or standby
assistance” from records showing that he was
nonweightbearing for a period of time and thereafter was a
fall risk. See Id. at 18.
sure, the documentation in this case that directly addresses
Mr. Moreno's inability to perform ADLs is scant. But Mr.
Moreno's arguments miscomprehend the focus of this
Court's review, which is to “not ask whether record
evidence could support the petitioner's view of the
issue, but whether it supports the [agency's] ultimate
decision.” Florida Gas Transmission Co., 604
F.3d at 645. Even assuming, arguendo, that the
evidence emphasized by Mr. Moreno is consistent with the loss
of ADLs, it would be improper for this Court to
“substitute its judgment for that of the agency.”
See Motor Vehicle Mfrs. Ass'n of the United States,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). As previously described, judicial review ...