Pipes v. United States

In the United States Court of Federal Claims

No. 15-1163

Filed: September 11, 2018

****************************************

*

* 10 U.S.C. §§ 101(d)(7) (defining “inactive-

* duty training”), 1204 (Retirement for

* Military on Active Duty for 30 days or

* less or on Inactive-duty Training);

MALCOLM PIPES, * 28 U.S.C. § 1491 (Tucker Act Jurisdiction);

* Air Force Instruction (“AFI”) 10-248

Plaintiff, * (May 26, 2004) (Fitness Program);

* Air Force Manual 36-8001 (Jan. 22, 2004)

* (Reserve Personnel Participation and

v. * Training Procedures);

* Rules of the United States Court of Federal

* Claims (“RCFC”) 12(b)(1) (Subject

THE UNITED STATES, * Matter Jurisdiction), 12(b)(6) (Failure to

* State a Claim Upon Which Relief Can

Defendant. * Be Granted), 52.1 (Judgment on the

* Administrative Record), 52.2

* (Remanding a Case).

*

*

*

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Matthew E. Hughes, Tully Rinckey PLLC, Washington, D.C., Counsel for Plaintiff.

David Alan Levitt, United States Department of Justice, Civil Division, Washington, D.C.,

Counsel for the Government.

MEMORANDUM OPINION AND FINAL ORDER ON REMAND

BRADEN, Senior Judge.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND.1

On October 9, 2015, SSgt Pipes (“Plaintiff”) filed a Complaint in the United States Court

of Federal Claims alleging that he was “denied the disability retirement pay and benefits to which

he is entitled under 10 U.S.C. § 1204[.]” ECF No. 1 at 9.

1

The relevant facts discussed herein were derived from the October 9, 2015 Complaint

(“Compl.”) and the Appendix attached to the Government’s January 27, 2016 Motion To Dismiss

On May 8, 2017, the Government filed a Motion To Dismiss, pursuant to RCFC 12(b)(1)

and 12(b)(6), or, in the alternative, for Judgment On The Administrative Record, pursuant to RCFC

52. ECF No. 25. On June 8, 2017, Plaintiff filed a Cross-Motion For Judgment On The

Administrative Record And Response to the Government’s May 8, 2017 Motion To Dismiss.

ECF No. 26.

On September 29, 2017, the court issued, under seal, a Memorandum Opinion And Order

denying the Government’s May 8, 2017 Motion To Dismiss and the Government’s May 8, 2017

Motion For Judgment On The Administrative Record, and granting Plaintiff’s June 8, 2017 Cross-

Motion For Judgment On The Administrative Record. See Pipes, 134 Fed. Cl. at 389. The

September 29, 2017 Memorandum Opinion And Order also vacated a February 28, 2013 Air Force

Board For Correction Of Military Records (“AFBCMR”) Decision denying Plaintiff’s Application

For A Correction Of Military Records and remanding this case to the AFBCMR for 120 days “to

reconsider Plaintiff’s Application For A Correction Of Military Records in light of the new

evidence presented by the parties,” pursuant to RCFC 52.2(a), (b)(1)(B). See id. On October 13,

2017, the court issued the public version of the September 29, 2017 Memorandum Opinion And

Order. See id.

On December 22, 2017, the parties filed a Joint Status Report notifying the court that the

new evidence presented was “under consideration and review by the Air Force Reserve

Command/Judge Advocate [(“AFRC/JA”)] and the Medical Review Board Medical Consultant

[(“MRBMC”)], both of which are advisors to the AFBCMR.” ECF No. 35 at 1. The December

22, 2017 Joint Status Report also stated that once the AFRC/JA and MRBMC “complete their

reviews, they will present their findings and recommendations to the AFBCMR,” that will “review

the recommendations and reconsider [Plaintiff’s] Application” For A Correction Of Military

Records. ECF No. 35 at 1.

On January 18, 2018, the parties filed a Joint Motion For Extension Of Remand And Stay

requesting a 120-day extension of the remand and stay, because “the AFRC/JA and MRBMC have

not yet completed their review and have not yet forwarded their recommendations to the

AFBCMR.” ECF No. 36 at 1–2. On that same day, the court issued an Order granting, in part,

the parties’ January 18, 2018 Joint Motion. ECF No. 37. The January 18, 2018 Order extended

the remand and stay to May 7, 2018, “or until AFBCMR issues the reconsideration decision.” ECF

No. 37 at 1. The January 18, 2018 Order also directed the parties to file a Joint Status Report

“within ten days of the AFBCMR’s reconsideration decision[,] or on May 7, 2018, whichever

occurs first.” ECF No. 37 at 1.

On February 1, 2018, the AFRC/JA issued an Advisory Opinion to the AFBCMR

recommending that the AFBCMR deny Plaintiff’s requested relief. ECF No. 40 at 18–21.

(“AR i, ii, 1–251, AF Form 40A”), and are related in Pipes v. United States, 134 Fed. Cl. 380 (Fed.

Cl. 2017).

2

On May 14, 2018, the parties filed a Joint Status Report notifying the court that on May 3,

2018, the AFBCMR issued a reconsideration decision (“May 3, 2018 AFBCMR Reconsideration

Decision”) concerning Plaintiff’s Application For Correction Of Military Records. ECF No. 38 at

1. The May 14, 2018 Joint Status Report stated that Plaintiff believes:

(1) that the [c]ourt has properly ruled in favor of [Plaintiff] on the Administrative

Record; (2) that the Air Force has now found that [Plaintiff]’s injury (stroke)

was incurred in the line of duty . . . ; (3) that the Air Force has properly found

that [Plaintiff] was indeed ordered to run and engage in [Self-paced Fitness

Improvement Program (“SFIP”); and (4)] that the Air Force has made a legally

indefensible finding that [Plaintiff] can ignore an acknowledged order of his

Commander . . . , when it has been found that orders from superiors requiring

the performance of military duties are presumed to be lawful.”

ECF No. 38 at 2.

In contrast, the Government stated that the May 3, 2018 AFBCMR Reconsideration

Decision affords a satisfactory basis for disposition of this case. ECF No. 38 at 2.

On June 12, 2018, the court issued an Order directing the AFBCMR to file with the Clerk

of Court two copies of the May 3, 2018 AFBCMR Reconsideration Decision, pursuant to RCFC

52.2(e). On June 22, 2018, the Government filed two copies of the May 3, 2018 AFBCMR

Reconsideration Decision, including attachments thereto. ECF No. 40.

On July 3, 2018, Plaintiff filed a Motion To Supplement The Administrative Record with

“DOJ publication, Employment Rights of the National Guard and Reserve,” because this handbook

was submitted by Plaintiff to the AFBCMR on remand. ECF No. 41 at 1.

On July 10, 2018, the Government responded that, “[b]ecause this case involves

[Plaintiff’s] claim for a disability retirement pension rather than a claim of discrimination[,] based

on military service, the Government fails to see how the handbook . . . is relevant to [Plaintiff’s]

claims[.]” ECF No. 42 at 1. Nevertheless, the Government did not oppose Plaintiff’s July 3, 2018

Motion. ECF No. 42 at 1. On that same day, Plaintiff filed a Notice together with the attached

handbook. ECF No. 43. On August 3, 2018, the court issued an Order granting Plaintiff’s July 3,

2018 Motion.

II. THE AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS’

RECONSIDERATION DECISION ON REMAND.

On May 3, 2018, the AFBCMR issued a Reconsideration Decision, 2 that “reconsider[ed

Plaintiff’s] request to:

2

The May 3, 2018 AFBCMR Reconsideration Decision is part of the Administrative

Record. See 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE

§ 8306 (3d ed. 2018) (“Formal record[:] The record for review . . . includes the decision of any

lower level decisionmakers.”).

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1. Correct [Plaintiff’s] record to reflect [that Plaintiff] is permanently medically

retired at 60 percent (or more) effective 4 Sep[tember] [20]06;

2. Receive back pay from the above date of retirement and [for Plaintiff] and his

family [to] be reimbursed for all medical bills from the effective date of his

permanent retirement; and, by amendment,

3. Be placed on active duty orders and afford him the opportunity to enter a

military health facility at the Air Force’s expense for further medical

rehabilitative evaluation and treatment.

ECF No. 40 at 37.

The May 3, 2018 AFBCMR Reconsideration Decision found:

1. After again reviewing [Plaintiff’s] reconsideration application, the court

documents, and the evidence provided in support of [Plaintiff’s] appeal, we

remain unpersuaded [that] the evidence presented demonstrate[s] the existence

of an error or injustice and agree with the previous Board’s decision. While the

Board notes the Medical Advisor found it plausible that [Plaintiff’s]

participation in vigorous training for his fitness assessment may have

contributed to the occurrence of his stroke, the Board further notes in order [for

Plaintiff’s] stroke to be considered in the line of duty as a traditional Reservist,

it must be determined it was the proximate result of performing military service.

In this regard, the Board slightly differs from the AFRC/JA opinion that

[Plaintiff] was actually ordered to participate in . . . SFIP; however, the Board

does agree with AFRC/JA that [Plaintiff] was never lawfully ordered to

participate in SFIP while in civilian status[,] nor that [Plaintiff] was in an

[“inactive-duty training”] status when he did so participate. The Board further

agrees with the AFRC/JA opinion that adherence to SFIP could only be legally

mandated when [Plaintiff] was in a duty status and that SFIP training is no

different than any other daily routine to maintain fitness between drilling UTAs.

Continued adherence to any fitness routine while in civilian status is highly

encouraged, but cannot be and is not mandated. The Board agrees with

AFRC/JA and finds the contention that all reservists should be in a duty status

when they are maintaining their fitness to meet Air Force fitness standards not

only overbroad, but [also] misconstrues the statute. Therefore, the Board

determines [Plaintiff’s] disability processing was done in accordance with the

applicable regulations and instructions at the time as [Plaintiff] was not in an

official military duty status. While the Board notes [Plaintiff’s] counsel

contends the [February 1, 2018] AFRC/JA [A]dvisory [Opinion] should be

disregarded[,] since it referenced the wrong Air Force Instruction . . . and

[United States Air Force Reserve Command (“AFRC”)] Supplement, the Board

reviewed the applicable AFIs and found no material difference. Additionally[,]

the Board determined [that] the AFRC supplement referenced was in effect at

the time of [Plaintiff’s] stroke and it clearly states member participation in a

non-duty status is encouraged. As stated above, participation in a fitness

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program could only be legally mandated when [Plaintiff] was in a duty status,

and at the time of [Plaintiff’s] stroke, he was not. Therefore, in the absence of

evidence to the contrary, we find no basis to recommend granting the requested

relief.

2. [Plaintiff’s] case is adequately documented and it has not been shown that a

personal appearance with or without counsel will materially add to our

understanding of the issues involved. Therefore, the request for a hearing is not

favorably considered.

ECF No. 40 at 42–43.

Therefore, the May 3, 2018 AFBCMR Reconsideration Decision ruled that “[Plaintiff] be

notified [that] the evidence presented did not demonstrate the existence of material error or

injustice; the application was denied without a personal appearance; and the application will only

be reconsidered upon the submission of newly discovered relevant evidence not considered with

this application.” ECF No. 40 at 43.

III. DISCUSSION.3

A. Standard Of Review For Judgment On The Administrative Record.

As a matter of law, the review of a military correction board’s decision is “limited to the

administrative record before the deciding official or officials.” Wyatt v. United States, 23 Cl. Ct.

314, 319 (Cl. Ct. 1991). The standard for judgment on the administrative record, pursuant to RCFC

52.1, is whether the plaintiff has met the burden of proof to show that the decision was without a

rational basis or not in accordance with the law, after considering the administrative record. See

Bannum, Inc. v. United States, 404 F.3d 1346, 1357 (Fed. Cir. 2005) (instructing the court to make

“factual findings under RCFC 52.1 from the [limited] record evidence as if it were conducting a

trial on the record”). Where the parties have filed cross-motions for judgment on the administrative

record, RCFC 52.1 provides a procedure for parties to seek the equivalent of an expedited trial on

a “paper record, allowing fact-finding by the trial court.” Id. at 1356. Unlike summary judgment,

genuine issues of material fact do not preclude a judgment on the administrative record.

See id. at 1355–56.

The standard of review is limited to determining whether the agency decision is “arbitrary,

capricious, unsupported by substantial evidence, or contrary to law.” Porter v. United States, 163

F.3d 1304, 1312 (Fed. Cir. 1998); see also Hoskins v. United States, 40 Fed. Cl. 259, 271–72 (Fed.

Cl. 1998) (“Once a plaintiff has sought relief from a correction board . . . the plaintiff is bound by

that board’s determination unless he can satisfy the difficult standard of proof that the correction

board’s decision was illegal[,] because it was arbitrary, capricious, or in bad faith, or unsupported

3

The court’s October 1, 2017 Memorandum Opinion And Order determined that: Plaintiff

has standing to bring the claims alleged in the October 9, 2015 Complaint; the claims alleged in

the October 9, 2015 Complaint are not barred by the statute of limitations; and the facts alleged in

the October 9, 2015 Complaint state a claim on which relief can be granted. See Pipes, 134 Fed.

Cl. at 389, 395, 401.

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by substantial evidence, or contrary to law, regulation or mandatory published procedure of a

substantive nature by which plaintiff has been seriously prejudiced, or money is due.”) (citations

omitted). The court is not authorized to retry the case on the merits. See Chayra v. United States,

23 Cl. Ct. 172, 178 (Cl. Ct. 1991) (“While the court might disagree with the board’s decision, it

cannot substitute its own judgment for that of the board if reasonable minds could reach differing

resolutions of the disputed matter.”).

Plaintiff bears the burden of proving any deficiency by “cogent and clearly convincing

evidence.” Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986) (internal citations omitted).

Therefore, the proffered evidence must “overcome the strong, but rebuttable, presumption that the

administrators of the military, like other public officers, discharge their duties correctly, lawfully,

and in good faith.” Porter, 163 F.3d at 1316 (quoting Sanders v. United States, 596 F.2d 804, 813

(Ct. Cl. 1979)).

B. Whether The Air Force Board For Correction Of Military Records’

Reconsideration Decision Was “Arbitrary, Capricious, Unsupported By

Substantial Evidence, Or Contrary To Law.”

The October 9, 2015 Complaint alleges that Plaintiff was “denied the disability retirement

pay and benefits to which he is and has been entitled under 10 U.S.C. § 1204[.]” Compl. ¶ 43.

After considering the new evidence on remand, the May 3, 2018 AFBCMR Reconsideration

Decision ruled that “the Medical Advisor found it plausible that [Plaintiff’s] participation in

vigorous training for his fitness assessment may have contributed to the occurrence of his stroke[.]”

ECF No. 40 at 43. Therefore, the only remaining issue is whether Plaintiff met the retirement

criteria set forth in 10 U.S.C. § 1204.

That Section provides, in relevant part:

Upon a determination by the Secretary concerned that a member of the armed

forces . . . is unfit to perform the duties of his office, grade, rank, or rating because

of physical disability, the Secretary may retire the member with retired pay . . . , if

the Secretary also determines[, inter alia,] that . . . the disability . . . is a result of an

injury, illness, or disease incurred or aggravated in line of duty after September 23,

1996 . . . while performing active duty or inactive-duty training[.]

10 U.S.C. § 1204(2)(B)(i) (2000) (italics added).

The term “active duty” means “full-time duty in the active military service of the United

States.” 10 U.S.C. 101(d)(1) (2000). The October 9, 2015 Complaint does not allege that Plaintiff

was in an “active duty” status at the time of the alleged injury. Compl. ¶ 44 (Plaintiff “suffered a

[stroke] . . . that rendered him physically disabled, and that [stroke] was incurred while performing

the task of running as he was ordered to do as part of the SFIP inactive-duty training.”) (italics

added).

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Section 101 of Title 10 of the United States Code defines “inactive-duty training” as:

(A) duty prescribed for Reserves by the Secretary concerned under section 206 of

title 37[4] or any other provision of law; and

(B) special additional duties authorized for Reserves by an authority designated by

the Secretary concerned and performed by them on a voluntary basis in

connection with the prescribed training or maintenance activities of the units

to which they are assigned.

10 U.S.C. § 101(d)(7) (2000).

The Secretary of the Air Force, however, requires that, “[a]ll [‘inactive-duty training’]

must . . . [h]ave advance authorization from the [service] member’s unit commander (or designated

representative) for unit personnel. For Individual Reservists[,] the authorizing authority is the

supervisor or program manager ([t]his is done in Block III of the AF Form 40A).” AFMAN 36-

8001 ¶ 4.2.1.1 (Jan. 22, 2004). In addition, “[a]ll [‘inactive-duty training’] must . . . [b]e performed

for pay and points, or points only as an USAFR member without pay from another [United States]

government source (i.e. no dual compensation).” AFMAN 36-8001 ¶ 4.2.1.3 (Jan. 22, 2004).

In this case, the Administrative Record evidenced that Plaintiff failed to establish that he

was in an “inactive-duty training” status while performing SFIP. First, Plaintiff did not produce a

completed AF Form 40A to demonstrate that he was authorized by his Commander to perform

“inactive-duty training.” Such authorization is a pre-condition for any activity, including SFIP, to

be considered performed by a service member in an “inactive-duty training” status. See AFMAN

36-8001 ¶ 4.2.1.1 (Jan. 22, 2004); see also United States v. Hale, 77 M.J. 598, 604 (A.F. Ct. Crim.

App. 2018) (determining that “no authority existed to extend a reserve member’s military status

while on inactive-duty training beyond the designated block of time listed on the AF Form 40A”).

Second, Plaintiff did not produce evidence that he performed SFIP for pay and points, or points

only. As a matter of law, all “inactive-duty training” must be performed for pay and points, or

points only. See AFMAN 36-8001 ¶ 4.2.1.3 (Jan. 22, 2004); see also 31 U.S.C. § 1342 (“An

officer or employee of the United States Government . . . may not accept voluntary services for

[the G]overnment or employ personal services exceeding that authorized by law except for

emergencies involving the safety of human life or the protection of property. . . . As used in this

section, the term ‘emergencies involving the safety of human life or the protection of property’

does not include ongoing, regular functions of government the suspension of which would not

imminently threaten the safety of human life or the protection of property.”).

SFIP is not a “special additional dut[y]” authorized by the Secretary of the Air Force as a

type of “inactive-duty training.” See 10 U.S.C. § 101(d)(7)(B). The Secretary of the Air Force

has determined that there are only five types of “inactive-duty training:” (1) Training Period: “[a]

4-hour period of training, duty, or instruction[;]” (2) Unit Training Assembly: “[a] planned period

4

The duties prescribed for Reserves by the Secretary of the Air Force in Section 206 of

Title 37 are: (1) “a regular period of instruction[;]” (2) “the performance of such other equivalent

training, instruction, duty, or appropriate duties, as the Secretary [of the Air Force] may prescribe;”

and (3) “a regular period of instruction that the member is scheduled to perform but is unable to

perform[,] because of physical disability[.]” 37 U.S.C. § 206 (2000).

7

of training, duty, instruction, or test alert completed by a Reserve unit[;]” (3) Equivalent

Training: “[a] training period accomplished in place of a scheduled [Unit Training Assembly] or

[Training Period;]” (4) Additional Ground Training Period: “[a] flying training period authorized

for an individual in an authorized flying position[;]” and (5) Readiness Management Periods:

training periods “used to support the ongoing day-to-day operation of the unit accomplishing unit

administration, training preparation, support activities, and maintenance functions.” AFMAN 36-

8001 ¶¶ 4.1.1 to 4.1.5 (Jan. 22, 2004). Each of these types of “inactive-duty training” are

performed “in connection with the prescribed training or maintenance activities of the units to

which they are assigned.” 10 U.S.C. § 101(d)(7)(B); see also Clark v. United States, 93 Fed. Cl.

756, 773 n.40 (Fed. Cl. 2010) (“like all inactive-duty training, [Equivalent Training] is a formal,

supervised period of training”) (internal corrections omitted). Cf. United States v. Wolpert, 75

M.J. 777, 781 (A. Ct. Crim. App. 2016) (determining that a service member was not in an

“inactive-duty training” status after signing out from a period of Unit Training Assembly).

Instead, SFIP is “[a] remedial intervention program recommended for traditional

Reservists . . . identified with a composite poor fit score.” U.S. AIR FORCE, AIR FORCE

INSTRUCTION 10-248 (May 26, 2004) (“AFI 10-248”) at 46 (italics added). Reservists “are highly

encouraged to take part [in SFIP] on a voluntary basis in all available intervention programs” so

that they can meet the minimum fitness requirements of the Air Force. See AFI 10-248 at 46 (“All

[service] members of the Air Force must be physically fit to support the Air Force mission.”); see

also id. (“The [Air Force] uses a composite fitness score based on aerobic fitness, muscular

strength[,] and body composition to determine overall fitness. Overall fitness is directly related to

health risk, including risk of disease (morbidity) and death (mortality). A composite score of 70

represents the minimum accepted health, fitness[,] and readiness levels.”). As the May 3, 2018

AFBCMR Reconsideration Decision explains, “SFIP training is no different than any other daily

routine to maintain fitness between drilling [Unit Training Assemblies].” ECF No. 40 at 43.

Therefore, as a matter of law, a service member is not in an “inactive-duty training” status

while performing SFIP. This is so, because Congress requires that all service members who

perform “inactive-duty training” are in a “duty status.” 10 U.S.C. § 101(d)(7) (italics added)

(defining “inactive-duty training” as a type of “duty status”). The Secretary of the Air Force also

stated that all service members who perform SFIP “are in a non-duty status, [and] their

participation . . . is not mandated.” AFI 10-248 at 46 (italics added). Accordingly, the May 3,

2018 AFBCMR Reconsideration Decision correctly ruled that, “[c]ontinued adherence to any

fitness routine while in civilian[, non-duty] status is highly encouraged, but cannot be and is not

mandated.” ECF No. 40 at 43.

Accordingly, the May 3, 2018 AFBCMR Reconsideration Decision’s determination that

Plaintiff was neither “lawfully ordered to participate in SFIP while in civilian[, non-duty] status,

nor . . . in an [‘inactive-duty training’] status when he did so participate” is not arbitrary, capricious,

unsupported by substantial evidence, nor contrary to law.

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IV. CONCLUSION.

For these reasons, the Government’s May 8, 2017 Motion For Judgment On The

Administrative Record is granted and Plaintiff’s June 8, 2017 Cross-Motion For Judgment On The

Administrative Record is denied. The Clerk of Court is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ Susan G. Braden

SUSAN G. BRADEN

Senior Judge

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