Jon T. Hoffman v. United States

In the United States Court of Federal Claims

NOT FOR PUBLICATION

No. 11-904C

(Filed: April 17, 2013)

)

JON T. HOFFMAN, )

)

Plaintiff, )

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v. )

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THE UNITED STATES, )

)

Defendant. )

)

ORDER DENYING THE PLAINTIFF’S MOTION FOR RECONSIDERATION

Pursuant to Rule 59(a) of the Rules of the United States Court of Federal Claims

(“RCFC”), the plaintiff, Colonel Jon T. Hoffman (“Colonel Hoffman” or “the plaintiff”)

seeks reconsideration of the court’s December 21, 2012 opinion in Hoffman v. United

States, 108 Fed. Cl. 106 (2012). In that opinion, this court held that the decision of the

Board of Corrections for Naval Records (“BCNR”)—that there was no material error or

injustice in processing the denial of a disability retirement for Colonel Hoffman—was not

arbitrary, capricious, an abuse of discretion, contrary to law, or unsupported by

substantial evidence. For the reasons that follow, the plaintiff’s motion for

reconsideration of that decision is DENIED.

I. Standard of Review

This court may reconsider some or all of the issues resolved by its prior ruling: (1)

for any reason for which a new trial has heretofore been granted in an action at law in

federal court; (2) for any reason for which a rehearing has heretofore been granted in a

suit in equity in federal court; or (3) upon the showing of satisfactory evidence,

cumulative or otherwise, that any fraud, wrong, or injustice has been done to the United

States. RCFC 59(a). The decision whether to grant reconsideration lies largely within

the discretion of the trial court. See Entergy Nuclear FitzPatrick, LLC v. United States,

No. 2012-5059, 2013 WL 1296699, at *4 (Fed. Cir. Apr. 2, 2013) (citing Yuba Natural

Res., Inc. v. United States, 904 F.2d 1577, 1583 (Fed. Cir. 1990)). RCFC 59(a) “is not

intended to give an unhappy litigant an additional chance to sway the court.” Bishop v.

United States, 26 Cl. Ct. 281, 286 (1992) (quoting Circle K Corp. v. United States, 23 Cl.

Ct. 659, 664-65 (1991)). The movant generally must demonstrate that relief from

judgment is necessary to prevent manifest injustice, premised upon a clear error of law or

mistake of fact. See Boston Edison Co. v. United States, 106 Fed. Cl. 330, 335 (2012);

Lechliter v. United States, 72 Fed. Cl. 17, 18 (2006).

II. Discussion

The background facts of this case are described at length in the court’s prior

opinion and are not repeated here. See Hoffman, 108 Fed. Cl. at 111-16. Throughout

this litigation the plaintiff has attempted to show that numerous alleged procedural errors

preceding a Formal Physical Evaluation Board (“PEB”) decision finding Colonel

Hoffman “Fit” for duty rendered the BCNR’s decision to not reverse the Formal PEB

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arbitrary and capricious or without evidentiary support. Specifically, Colonel Hoffman

has maintained that, had the Marine Corps properly concluded that his illness was

service-incurred or aggravated and if the Navy had timely provided him with a Medical

Evaluation Board (“MEB”), the Navy would have awarded him a disability retirement.

In its opinion, the court carefully reviewed the record before the BCNR and addressed

Colonel Hoffman’s numerous procedural complaints to the Marine Corps’ and Navy’s

handling of his disability claim. After undertaking this review, the court affirmed the

BCNR. Colonel Hoffman now raises objections to the court’s reading of the BCNR

decision and the steps the court took to determine if the record supported the BCNR’s

findings and conclusions. None of Colonel Hoffman’s contentions leads the court to

grant reconsideration.

On reconsideration, Colonel Hoffman contends that the BCNR did not review or

affirm the Formal PEB determination that he was Fit for duty as a field historian for the

Marine Corps. Colonel Hoffman further contends that the BCNR’s conclusion that his

illness was not service-incurred or aggravated is not supported by the record. In addition

to these objections, Colonel Hoffman raises several other grounds for reconsideration of

the court’s decision.

To begin, contrary to the plaintiff’s contention, a review of the record plainly

reveals that the BCNR considered the plaintiff’s objections to the Formal PEB’s Fitness

determination and thus Colonel Hoffman’s motion for reconsideration on the ground that

his Fitness was not considered by the BCNR is not supported. It is not disputed that the

Formal PEB found that Colonel Hoffman was Fit for service or that Colonel Hoffman

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appealed that determination to the BCNR. The record also reveals that upon receiving

his appeal, the BCNR requested an advisory opinion from the Secretary of the Navy

Council of Review Boards (“SNCRB”). Following its review of the record, the SNCRB

issued an opinion which states in relevant part as follows:

Colonel Hoffman has requested the 14 February 2009 Formal Physical

Evaluation Board (FPEB) determination . . . be changed from Fit for

Continued Naval Service to Unfit for Continued Naval Service . . . . After

careful consideration, I have concluded the evidence submitted to be

insufficient to warrant supporting the recommended requested change. . . .

[This] decision is based on the available evidence which provides

insufficient support for the requested relief, and includes . . . [1] Evidence

that shows Colonel Hoffman was capable of fulfilling duties appropriate for

the pay grade of an O-6 (albeit, such duties would be administrative in

nature) despite limitations on physical activities described at the time of the

contested FPEB determination and the long-term prognosis. . . . [2]

Testimony provided by Colonel Hoffman at his 14 February 2008 FPEB

hearing, to which reference was made in the FPEB Rationale, included,

“since the 1986-87 time he has functioned as a historian and in his civilian

capacity he is a historian for the Department of the Army”—this despite

additional testimony indicating a not otherwise documented “decrement in

his cognitive abilities.” Further, he indicated the residual ability to walk

“for 30 minutes on flat ground daily, is able to transit two flights of stairs,

does not suffer from paroxysmal nocturnal dyspnea or use additional

pillows at night. [He] [s]tands for 20 minutes . . . drives for one hour with

the use of a lumbar support and uses a modified straight back chair at

work.” . . . [3] Documentation of subsequent (March 2008) treadmill stress

test results that were compatible with a VASRD rating of 30 percent under

Code 7099-7020 (as contained in the 24 July 2008 VA Rating Decision),

which reflected exertion limitation to 6-7 Metabolic Equivalent of Tasks

(METS). However, such activity restriction remained compatible with the

exertion required to be able to perform appropriate duties for his pay grade

at that time.

Administrative Record (“AR”) 60-61.

After receiving the SNCRB’s advisory opinion (and Colonel Hoffman’s rebuttal),

the BCNR concluded that Colonel Hoffman had failed to establish the probable material

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error or injustice required to reverse the Formal PEB determination. The BCNR

expressly stated that, “the Board substantially concurred with the comments contained in

the [SNCRB] advisory opinion,” including the advisory opinion that Colonel Hoffman

was not Unfit for duty due to a service-incurred illness, as quoted above. AR 57. In its

decision, the BCNR also acknowledged that Colonel Hoffman had received a disability

rating from the Department of Veterans Affairs (“VA”), but noted that “[t]he VA

awarded [him] disability compensation without regard to the issue of [his] fitness to

reasonably perform the duties of [his] office, grade, or rank.”1 AR 58.

In view of the statements from the SNCRB that were referenced with approval in

the BCNR decision, Colonel Hoffman’s contention that the BCNR did not review and

uphold the Formal PEB’s Fitness determination must be rejected and Colonel Hoffman’s

motion for reconsideration on this basis must also be rejected.

The plaintiff also objects to the court’s decision regarding the BCNR’s alternative

conclusion that Colonel Hoffman’s illness was not service-incurred. Colonel Hoffman

takes issue with the court’s identification of record evidence in its decision that was not

specifically mentioned in the BCNR’s decision. The plaintiff argues that by citing this

additional evidence, the court provided a basis for the BCNR decision that had not been

1

To the extent that the plaintiff argues that the Navy was required to discuss the impact of

neuropathy (presumably caused by amyloidosis) on his Fitness for duty, the court notes that the

failure to specifically address his peripheral neuropathy does not require reconsideration of the

court’s decision. Indeed, the VA found that Colonel Hoffman did not present “objective

pathology of sensory loss, weakness, numbness or paralysis” due to his peripheral neuropathy.

AR 79. In this connection, the court reiterates that it was prohibited from substituting its

judgment for the BCNR even if reasonable minds could have reached a different conclusion. See

Krauss v. United States, 40 Fed. Cl. 834, 839-43 (1998), aff’d, 185 F.3d 886 (Fed. Cir. 1999)

(dismissing a challenge to a BCNR decision in similar circumstances).

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provided by the BCNR, thereby overstepping the court’s role in contravention of Motor

Vehicle Manufacturers Ass’n of United States, Inc. v. State Farm Mutual Automobile

Insurance Co., 463 U.S. 29, 43 (1983).

The court disagrees. While it is true that the court did identify evidence in the

record that did not appear in the BCNR’s decision, this evidence was in addition to the

evidence the BCNR had relied upon to support its conclusion that Colonel Hoffman’s

illness was not service-incurred. The BCNR identified several facts in the record to

support its decision regarding service-incurrence. The BCNR referenced evidence of

Colonel Hoffman’s leg-swelling and gingivitis. The BCNR explained that this evidence

did not necessarily prove that his illness was incurred while he was on active duty and

concluded that Colonel Hoffman was not ill during active service. The court, in its

opinion, determined that the BCNR’s conclusion regarding service-incurrence was

further supported by other facts in the record, including Colonel Hoffman’s Fitness tests

and echo cardio tests.

This court is authorized to decide cases based on the “whole record.” See Moyer

v. United States, 190 F.3d 1314, 1320 (Fed. Cir. 1999) (reviewing record as a whole).

This includes everything that was before the agency when it evaluated the merits of the

claim. See Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379-80 (Fed. Cir.

2009). Contrary to the plaintiff’s contention, all of the relevant facts did not have to

appear in the BCNR decision. Rather, the BCNR decision had to be supported by the

record as a whole. See Moyer, 190 F.3d at 1320. In view of the foregoing, the court

finds that Colonel Hoffman’s objection to the court’s decision on the grounds that the

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court identified additional record evidence supporting the BCNR’s decision is without

merit.

Finally, the court has reviewed all of Colonel Hoffman’s additional grounds for

reconsideration and concludes that none of them warrant reconsideration or discussion.

Applying the deferential standard of review applicable to court review of BCNR

decisions, the court determined that the BCNR decision refusing to set aside the Navy’s

decision to deny Colonel Hoffman a disability retirement should be affirmed. None of

the other issues raised by Colonel Hoffman in its motion provide a basis for the court to

revisit its decision.2

III. Conclusion

For the above-stated reasons, the plaintiff has failed to show a manifest error of

law or mistake of fact that would warrant reconsideration under RCFC 59(a). As such,

the plaintiff’s motion for reconsideration is DENIED.

IT IS SO ORDERED.

s/Nancy B. Firestone

NANCY B. FIRESTONE

Judge

2

Separate from his claim for a disability retirement, Colonel Hoffman also argues that he is

entitled to reconsideration of the court’s rejection of his claim for incapacitation pay and

benefits. Pl. Mot. 18-22. As the court explained in its decision, the plaintiff waived his claim for

incapacitation pay. Colonel Hoffman has not provided the court with any basis for reconsidering

this determination and thus his motion for reconsideration of this claim is also denied.

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