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No. 12-91 C FILED
April26,2016
LINPUBLISHED APR 2 6 2016
U,S, COURT OF
FEDERAL CTAIMS
OWEN EVANS.
Military Pay; Disability Discharge;
Plaintffi Due Process Clause; Motion To
Dismiss, RCFC 12(bX1) and
l2(bX6); Motion for Judgment on
the Administrative Record, RCFC
THE UNITED STATES, 52.1
Defendant.
Owen Evans, pro se, San Diego, Califomia.
Jana Moses, Esq., United States Department of Justice, Civil Division, Washington
DC, for defendant.
OPINION AND ORDER
Futey, Sr. Judge,
Plaintiff, Owen Evans, proceedingpro se, is a former reservist in the United States
Naly. Plaintiff alleges that the Navy unlawfully separated him and brings claims for back
pay and entitlements, pursuant to the Military Pay Act,37 U.S.C. 204, disability retirement
benefits, and compensatory damages based on alleged violations of his Fifth Amendment
Due Process Clause rights. Before the Court are plaintiff s motion for partial judgment on
the administrative record, pursuant to Rule of the Court of Federal Claims C'RCFC') 52.1
and defendant's motion to dismiss, pursuant to RCFC 12(bX1) and l2 (bX6), and cross-
motion for judgment on the administrative record.
BACKGROUND
Plaintiff enlisted in the U.S. Navy Reserve on December 14,2001. Am. Compl. fl
7- 13. The Nary mobilized plaintiff on February 14,2005, for l2 months of active duty in
support of Operations Iraqi Freedom and Enduring Freedom. AR90,93, 102. Prior to his
mobilization, plaintiff completed a routine pre-deployment health examination, describing
his health as "excellent." AR 176, 178. The Navy stationed plaintiff in Kuwait beginning
on March 5, 2005. AR 168. Plaintiff retumed to the United States on August 5,2005. Id.
There is substantial disagreement between the parties on the circumstances of
plaintiffs travel back to the United States. Plaintiff alleges that the Navy redeployed him
to the Navy's Mountain Warfare Training Facility. Plaintiff contends that the Naval
Personnel Command modified his orders on August 30, 2005, but that plaintiff s superior
officer did not convey the new orders.r Pl.'s Mot. at 5 (citing AR 121-22). Defendant
contends that plaintiff did not have authorization to retum to the United States and that he
disregarded his orders. Def.'s Mot. at 3 (citing AR 89-91).
On February 10,2006, as his tour of active duty was ending, plaintiff reported to
the Navy Mobilization Processing Site in San Diego, California for demobilization. Am.
Compl. fl 48. As part of this process, plaintiff completed a post-deployment health
.l60-161,
assessment, as well as dental and physical examinations. AR 159, 168-171, 165,
177. Plaintiff indicated at this time that his overall health had not changed since his last
assessment and that he did not have any conditions that limited his ability to perform his
duties. AR 160. The dental exam revealed that his blood pressure was "high" but the
medical staff did not refer him to the Disability Evaluation System and declared plaintiff
"fitforfull duty." ARl59, 165, lTT.TheNaryseparatedplaintifffromactivedutyon
February 13,2006, and eventually discharged him from the Navy Reserve several years
later. on December 13,2009.2 AR 136.
On February 9,2012, plaintiff filed his complaint in this Court, seeking $650,000
in damages, a referral to the Disability Evaluation System, a correction of his military
records, and fees. ECF No. 1. At the parties' request, the Court stayed the case and
remanded it to the Board for Correction of Naval Records (the "Board") to consider
plaintiff s claims. ECF No. 26. In that venue, plaintiff sought disability retirement with a
95% disability rating, a promotion, commensurate back pay and entitlements from
February 13,2006 to March 31,2014,, and a correction of his military personnel file. AR
8- 12.
The Board issued its decision on July 7, 2015, partially granting plaintiffs desired
records correction and denying all other requested forms of relief. AR 1-4. Plaintiff then
amended his complaint in this Court on October 8, 2015. ECF No. 41.
Plaintiff now seeks a variety of relief. He requests a declaratory judgment stating
that the Navy unlawfully discharged him, retroactive extension of his enlistment contract,
with promotion, lrom February 13,2006 to March 31,2014, and $1,200,000 in damages
as well as a permanent 95% disability classification. Additionally, he requests 55,000,000
in compensatory damages for alleged Due Process Clause violations by the Board for
' Plaintiff alleges that Naly command failed to deliver his modified orders and falsified
an attached document. Am. Compl. 1132, 34, 36, 41, 45-51.
2
Plaintiff maintains that he wished to re-enlist in the Navv on active dutv at the time of
his separation. Am. Compl. 1125,67.
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Correction of Naval Records, and the removal of additional military records. Am. Compl.
at 21-22.
Ptaintiff filed his motion for partial judgment on the administrative record on
November 19,2015. ECF No. 42. Defendant filed its motion to dismiss and cross-motion
for judgment on the administrative record on December 24,2014. ECF No. 43. Plaintiff
submitted a response to those motions on January 15,2016. ECF No, 44. Defendant filed
its reply on February 4. ECF No. 45.
DISCUSSION
Plaintiff seeks a partialjudgment on the administrative record on his claims for back
pay and entitlements, disability benefits, and correction ofhis naval records. Plaintiffbases
these claims on a theory that the Navy unlawfully discharged him because it failed to
conduct a physical examination during his separation. Pl.'s Mot. at 6. Plaintiff contends
this error entitles him to two forms of relief: a retroactive extension of his enlistment
contract, with promotion, from his date of separation on February 13,2006 to March 31,
2014, and a permanent disability retirement at a 95%o rating from that date forward. Am.
Compl. at2\-22.
Defendant has moved to dismiss these claims for failure to state a claim upon which
reliefcan be granted or, alternatively, requests ajudgment on the administrative record in
its favor. Defendant contends that plaintiffs theory cannot entitle plaintiff to the relief
requested. Furthermore, defendant seeks dismissal of plaintiffs Due Process claim for
lack of subject matter jurisdiction.
A, PlaintifPs Theory of Unlawful Separation
Naval regulations set out several minimum separation procedures for service
members, such as plaintiff, who are retuming from more than 31 consecutive days of active
duty. U.S. Nary Manual of the Med. Dep't. Ch. l5 Art. 15-20. First, service members
complete a medical history report form to document their past and present medical
conditions. Then, Narry examiners interview the service member, review their medical
history form, and note any material health changes . Id. at (2)(a-b). Finally, the Nary
provides a focused physical examination to investigate any new medical conditions and
makes a determination of the service member's fitness for separation. Id. at (2)(c-f).
The gravamen of plaintiff s allegation is that the Navy failed to provide him with a
physical examination. Am. Compl. u 55. Naval policy, however, does not require a
physical examination during separation, if the Navy has examined the service member
within five years. Military Personnel Manual 1900-808 at 1. The Navy last examined
plaintiff on October 25, 2001, roughly four years and three months prior to his separation
on February 13,2006. AR 179-86, 196. Under naval policy, a new physical examination
was therefore not reouired.
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Furthermore, the record contains significant evidence that plaintiff received a
thorough medical evaluation during his separation.3 Naly examiners evaluated plaintiff,
gauging and recording conventional health factors such as blood pressure, vision, and body
mass index. AR 159. The examiners did not discover any limitine health issues and
concluded that plaintiff was fit for full duty. 1d
Plaintiffs self-evaluation confirmed the Naly's conclusions.4 In his report of
medical assessment, plaintiff indicated that his overall health had not changed over the
course of his deployment, that he did not have any medical conditions that would limit his
ability to work, and that he did not intend to seek disability benefits. AR 160-61. Indeed,
plaintiff described his health at the time as "very good." AR 170.
B. Plaintiff Cannot State a Claim for Extension of His Enlistment
In order to survive a motion to dismiss for failure to state a claim, "a complaint must
contain sufficient factual matter, accepted as true, to 'state a claim to reliefthat is plausible
on its face."' Ashcroft v. Iqbal,556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly,550 U.S. 544,570 (2007)). Dismissal under RCFC l2(bX6) is proper "when the
f'acts asserted by claimant do not entitle him to a legal remedy." Lindsay v. United States,
295 F.3d 1252, 1257 (Fed. Cir. 2002). ln considering such a motion, the Court accepts "all
well-pleaded factual allegations as true and draws all reasonable inferences in the
claimant's favor." Id. at 1257.
Plaintiff cannot state a claim upon which reliefcan be granted because the alleged
facts do not entitle him to relief. The Navy mobilized plaintiff for 12 months of active
duty, beginning on February 14,2005, and his orders for active duty expired in February
of 2006. AR 102. At that point, his tour of active duty came to a natural conclusion.
Service members do not have a "right to enlist or reenlist in the armed forces, unless
specially given one by statute or regulation." Dodson v. Uniled States, 988 F.2d 1199,
1203-1204 (Fed.Cir. 1993). Thus,plaintiffstheorythathewouldhaveremainedonactive
duty but for his separation runs aground of"[t]he established rule . . . that one is not entitled
to the benefit of a position until he has been duly appointed to it." United States v. Testan,
424 U.S. 392,402 (1976). Plaintiff cannot state a claim for an extension of his enlistment
contract because he had no entitlement to continue to serve in the Naw on active dutv.s
3
The administrative record contains extensive documentation of plaintiff s medical records
while enlisted in the Navy. AR 99-228,
4Plaintiff now alleges that he "signed all [medical] forms under duress." Am. Compl. tf
54. Plaintiff does not, however, present any alternative, contemporaneous medical
evidence of his alleged disability, such as an examination from a third-party physician.
5Plaintiff also cannot seek relief under the constructive service doctrine for this reason.
Under that doctrine, improperly separated service members can recover damages for the
C. Plaintiffls Claim for Disability Benefits Is Not Supported by the Record
A judgment on the administrative record is "properly understood as . . . an expedited
trial on the record." Bannum, Inc. v. Uniled States,404 F.3d 1346, 1356 (Fed. Cir.2005).
In contrast to a RCFC 56 motion for summary judgment, "a genuine dispute of material
fact does not preclude a judgment on the administrative record." Sierra Nevada Corp. v.
UnitedStates,107Fed.Cl.735,751 (2012)(ciLingBannum,404F.3datl355-56). Instead,
the Court considers whether, given all of the disputed and undisputed facts in the record, a
party has satisfled its burden ofproof. Bannum,404 F.3d at 1356.
Plaintiff has not demonstrated that the Navy improperly failed to refer him to the
Disability Evaluation System. The record reflects that the Naly conducted a thorough
medical examination of plaintiff, including post-deployment health assessment, physical,
and dental examinations. AR 159-162. Navy medical personnel concluded that plaintiff
was "physically qualified for separation from active duty" and that "[n]o defects have been
noted that would disqualifo [him] from the performance of [his] duties or entitle [him] to
disability benefits." 1d. Although plaintiff s medical examination revealed that plaintiff s
blood pressure was "high," his readings were below the threshold set by Nary guidelines
for refenal to the disability system.6
Furthermore, the Board for Correction of Naval Records considered and denied
plaintiff s claim for disability. The Board found that "insufficient evidence exists" to place
petitioner on permanent disability and that "he did not meet the criteria for refenal" to the
Disability Evaluation System during his separation. AR 1-2. An advisory opinion from
the U.S. Nary Bureau of Medicine and Surgery buttressed the Board's conclusion. AR 21 .
The Bureau found that plaintiff s "mildly elevated" blood pressure "did not require specific
follow up, did not require specialized referral, did not meet the threshold for referral to the
Disability Evaluation System, and was not sufhcient to delay separation." Id. The advisory
opinion concluded that plaintiff "met medical standards for separation." 1d
The Board's findings bind plaintiff unless he can establish that the Board acted
arbitrarilyorcapriciously. Porterv.UniledStates, 163F.3d 1304, 1312 (Fed.Cir. 1998).
This Court does not function as a "super correction board." Harris v. United States,14 Cl.
Ct.84,89(1987),aff'd,861 F.2d729(Fed.Cir. 1988). Judicial deferencetothemilitary's
fitness for duty assessments of its service members "is and of right should be the norm."
Maier v. Orr,754F.2d973,984 (Fed. Cir. 1985). This determination "is not a judicial
remainder of their tour of active duty. Barnickv. United States,59l F.3d 1372, 1379 (Fed.
Cir. 2010). Here, plaintiffs tour of active duty concluded on the date of his separation.
6 Navy guidelines recommend referral to a physical evaluation board for hypertensive
cardiovascular disease if a service member registers five blood pressure readings with a
diastolic pressure of greater than l00mm Hg. See SECNAVINST 1850.4E, Encl. 8, Sec.
8006(dX3). Plaintiff s readings were 93, 90, 92, and 90mm Hg. AR I 59, 165.
province" and the Court "cannot substitute [its] judgment for that of the military
departments when reasonable minds could reach differing conclusions on the same
evidence." Heisigv. UnitedStates,719F.2d 1153, 1156(Fed.Cir. 1983). ThisCourt's
review is limited to determining whether the Board supported its decision with substantial
evidcnce. Id. at ll57 .
In the instant case, the record demonstrates that the Board considered all of the
available evidence before it and supported its decision to deny plaintiffs disability claim
with substantial evidence. The Board reviewed plaintiff s medical records and evaluated
whether he met the medical criteria for referral to the Disability Evaluation System. AR
2. The Board also weighed the Bureau of Medicine and Surgery's advisory opinion on
plaintiff s qualification for the disability system, as well as plaintiffs rebuttal of the
advisory opinion. Id. There is no evidence in the record to indicate that the Board was
arbitrary or capricious in denying plaintiffs disability claim and, accordingly, this Court
will not disturb the Board's decision.T
D. This Court Lacks Jurisdiction over Plaintif?s Due Process Claim
Plaintiff brings a compensatory claim for a Fifth Amendment Due Process Clause
violation by the Board for Correction of Naval records. Am. Compl. lT 128-131. Plaintiff
alleges that the Board denied him a "full and fair consideration" of his case, resulting in
harm to his liberty and property interests. Id
It is well established that this Court lacks jurisdiction over claims for a violation of
the Fifth Amendment's Due Process Clause E.g., James v. Caldera, 159 F.3d 573, 581
(Fed. Cir. 1998); Flowers v. United States,32l F. App'x 928,934 (Fed. Cir.2008). The
Due Process Clause does not trigger this Court's jurisdiction because it is not money-
mandating. Mullenberg v. United States,857 F.2d '170,773 (Fed. Cir. 1988).
CONCLUSION
For the reasons discussed above, the following is hereby ordered:
l. With respect to plaintiff s first, fourth, and fifth causes of action
for back pay and constitutional claims, defendant's MOTION to
dismiss is GRANTED.
2. With respect to plaintiff s second and third causes of action for
disability benefits, defendant's CROSS-MOTION for judgment on
the administrative record is GRANTED.
7 The Court will also not upset the Board's decision to deny plaintilts military records
claim.
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3. Plaintiff s partial MOTION for judgment on the administrative
record is DENIED.
The Clerk is directed to take the necessary steps to enter judgment accordingly.
IT IS SO ORDERED.
A. Futey
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