Petition for Writ of Certiorari — Blair Coleman, Petitioner v. Frank Kendall, Secretary of the Air Force
Supreme Court briefDec 18, 2023
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APPENDIX TABLE OF CONTENTS
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OPINION OF THE U.S. COURT OF APPEALS
FOR THE FOURTH CIRCUIT, DECIDED
JULY 26, 2023 .................................................. App. 1
OPINION OF THE U.S. DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH
CAROLINA, FILED MARCH 30, 2022 ......... App. 21
MEMORANDUM AND RECOMMENDATION,
UNITED STATES MAGISTRATE JUDGE,
U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA,
SIGNED APRIL 16, 2021 .............................. App. 42
DENIAL OF PETITION FOR REHEARING EN
BANC, U.S. COURT OF APPEALS FOR THE
FOURTH CIRCUIT, FILED SEPTEMBER
22, 2023 .......................................................... App. 67
App. 1
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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No. 22-1591
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BLAIR COLEMAN,
Plaintiff—Appellant,
v.
FRANK KENDALL, Secretary of the Air Force,
Defendant—Appellee.
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Appeal from the United States District Court for the
Western District of North Carolina, at Statesville.
Robert J. Conrad, Jr., District Judge. (5:17-cv-00096RJC-DSC)
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Argued: May 5, 2023
Decided: July 26, 2023
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Before AGEE and WYNN, Circuit Judges, and Henry
E. HUDSON, Senior United States District Judge for
the Eastern District of Virginia, sitting by designation.
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App. 2
Affirmed by published opinion. Judge Wynn wrote the
opinion, in which Judge Agee and Senior Judge Hudson joined.
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ARGUED: Alexandra Lawson, John Wilton Harris,
UNIVERSITY OF NORTH CAROLINA SCHOOL OF
LAW, Chapel Hill, North Carolina, for Appellant. Caroline B. McLean, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
ON BRIEF: Tod M. Leaven, GRIMES TEICH ANDERSON, LLP, Asheville, North Carolina, for Appellant.
Dena J. King, United States Attorney, Julia K. Wood,
Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
WYNN, Circuit Judge:
Blair Coleman, an Air Force veteran, appeals from
a decision of the Physical Disability Board of Review
(“Board”) declining to increase his disability rating,
which would entitle him to greater benefits. The district court rejected Coleman’s arguments that the
Board was required to conduct a physical examination
before making its decision and that its decision was arbitrary and capricious. For the reasons that follow, we
affirm.
App. 3
I.
A.
Coleman enlisted in the Air Force in 1997 and
served as an active-duty staff sergeant. In September
2004, while deployed in Iraq, Coleman witnessed a
rocket attack that severely injured a fellow airman.
Following that incident, he began experiencing severe
anxiety. In March 2005, the Air Force placed him on
duty restriction and referred him to the Medical Evaluation Board. His examiner found that he would “fare
exceedingly poorly in the deployed environment,” and
the Medical Evaluation Board referred him to an Informal Physical Evaluation Board. J.A. 23.1 In September 2005, the Informal Physical Evaluation Board
concluded that Coleman was unfit for military service
and recommended discharge with a 10% disability rating. Coleman did not dispute that recommendation,
and the Air Force adopted it and honorably discharged
him with severance pay on October 24, 2005.
Because Coleman was medically separated after
fewer than 20 years in the Air Force with a disability
rating under 30%, he was not entitled to retirement
benefits, such as healthcare benefits. See 10 U.S.C.
§§ 1201, 1203. If Coleman had received a 30% rating
or higher, he would have been entitled to medical retirement from the Air Force with accompanying benefits. See id. § 1201.
Citations to the “J.A.” refer to the parties’ Joint Appendix
filed in this appeal.
1
App. 4
Shortly after his discharge, Coleman applied for
disability benefits through the Department of Veterans
Affairs (“VA”). The VA conducted an examination on
February 22, 2006, and in March, assigned Coleman a
disability rating of 30% for anxiety. The VA then began
paying him disability benefits.
Notably, VA disability ratings and associated benefits are distinct from the Air Force’s. The VA separately assesses a service member and may determine
a disability rating that varies from the Air Force’s rating. See Stine v. United States, 92 Fed. Cl. 776, 795
(2010). While both the Air Force and VA use the Veterans Affairs Schedule for Rating Disabilities (“Rating
Schedule”), they calculate disability ratings in different ways. The Air Force looks only to the disability at
the time of separation, while the VA may consider how
it develops over time. Or, in other words, the Air Force
“uses the [Rating Schedule] to determine what compensation the service member is due for the interruption of his military career, while the [VA] is more
holistically examining the individual’s ability to engage in civilian employment.” Id.
Under the Rating Schedule, mental disorders
can be rated at 0%, 10%, 30%, 50%, 70%, or 100%. 38
C.F.R. § 4.130. A 10% rating is appropriate where the
mental disorder causes “[o]ccupational and social impairment due to mild or transient symptoms which
decrease work efficiency and ability to perform occupational tasks only during periods of significant stress,
or symptoms controlled by continuous medication.” Id.
By contrast, a 30% rating applies where the disorder
App. 5
causes “[o]ccupational and social impairment with
occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks
(although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal),
due to such symptoms as: depressed mood, anxiety,
suspiciousness, panic attacks (weekly or less often),
chronic sleep impairment, [or] mild memory loss (such
as forgetting names, directions, [or] recent events).” Id.
In 2008, Congress created the Physical Disability
Board of Review as part of the Wounded Warrior Act.
Wounded Warrior Act, Pub. L. No. 110-181, § 1643(a)(1),
122 Stat. 430, 465–67 (2008) (codified as amended at
10 U. S.C. § 1554a). The Board’s purpose was to retroactively review the fairness and accuracy of disability
determinations made by military branches for members of the armed forces who were medically separated
with a disability rating of 20% or less between September 11, 2001, and December 31, 2009, and who
were therefore not eligible for retirement benefits. See
id. Upon an eligible veteran’s request, the Board must
conduct a review and make a recommendation about
the veteran’s disability rating to the Secretary of the
applicable branch. 10 U.S.C. § 1554a(c)–(d).
Following the Wounded Warrior Act, the Department of Defense issued guidance for conducting retroactive reviews. Under a 2008 Department of Defense
Instruction, the Board must compare a military
branch’s rating with a veteran’s VA rating “and consider any variance in its deliberations and any impact
on the final [Physical Evaluation Board] combined
App. 6
disability rating, particularly” where, as here, the VA
rating “was awarded within 12 months” of separation.
J.A. 451 (Department of Defense Instruction 6040.44
(June 27, 2008) (amended June 2, 2009)).
Separately, in 2008, the Department of Defense ordered military branches to consider § 4.129 of the Rating Schedule in making contemporaneous disability
determinations for service members. J.A. 476 (Policy
Memorandum from the Office of the Under Secretary
of Defense on Implementing Disability-Related Provisions of the National Defense Authorization Act of
2008 (Pub L. 110-181), at E7.2 (Oct. 14, 2008)). Section
4.129, a VA regulation, requires the VA to assign a
minimum 50% disability rating to those separated for
“a mental disorder that develops in service as a result
of a highly stressful event [and] is severe enough to
bring about the veteran’s release from active military
service.” 38 C.F.R. § 4.129. The VA must then examine
the servicemember within six months “to determine
whether a change in evaluation is warranted.” Id.
The Department of Defense instructed that, in applying § 4.129 to current service members, the military
branches must place members with disability ratings
of less than 80% “on the Temporary Disability Retirement List . . . and re-evaluate[ them] within a timeframe
that is not less than 90 days, but within 6 months, from
the date of [such] placement.” J.A. 476 (2008 Policy
Memorandum, at E7.2.2).
A 2009 memorandum from the Department of Defense clarified that § 4.129 of the Rating Schedule was
also applicable to the Board’s retroactive reviews of
App. 7
disability ratings. J.A. 481–82 (Policy Memorandum
from the Office of the Under Secretary of Defense on
Requests for Correction of Military Records Relating to
Disability Ratings for Post Traumatic Stress Disorder
(July 17, 2009)). The memorandum instructed the
Board that, in applying § 4.129 retroactively, it should
assign a minimum 50% rating for a retroactive sixmonth period after separation, and then determine the
appropriate rating “based on the applicable evidence.”
J.A. 482 (2009 Policy Memorandum).
On April 16, 2011, Coleman filed an application for
review with the Board. He asserted that he should
have been medically retired at a rating higher than
10% because he still suffered from symptoms and had
planned to spend his career in the Air Force.
The Board convened in November 2011 to consider
Coleman’s case and ultimately issued its decision in
May 2012. First, the Board concluded that § 4.129
should apply retroactively in Coleman’s case. But the
Board nonetheless determined that 10% was the appropriate disability rating at his final discharge, consistent with the original rating from the Air Force. As
a result, it recommended retroactively placing Coleman on the Temporary Disability Retirement List at a
50% rating for six months, followed by discharge at a
permanent 10% rating on April 24, 2006. The Air Force
accepted the Board’s recommendation.
App. 8
B.
In June 2017, Coleman sued the Air Force under
the Administrative Procedure Act (“APA”). He sought
“an order directing [the Air Force] to increase [his] disability rating,” J.A. 8, which would entitle him to additional benefits beyond what he received as a result of
his VA disability rating. The Air Force moved to dismiss for lack of jurisdiction. The district court granted
the motion, concluding that Coleman’s complaint sought
monetary, not injunctive, relief and therefore should
have been filed in the Court of Federal Claims under
the Tucker Act. But on appeal, this Court remanded for
consideration of an affidavit that Coleman had filed
during the pendency of the appeal, where he waived
any right to retirement pay.
On remand, the Air Force again moved to dismiss
for lack of jurisdiction, and in the alternative, moved
for summary judgment. The magistrate judge recommended denying the motion to dismiss in light of Coleman’s waiver and granting the motion for summary
judgment because the Board’s decision was not arbitrary or capricious. Both parties objected, but the district court adopted the report and recommendation.
II.
On appeal, Coleman presses two main arguments. First, he argues that the Board was required
to order a new physical examination in its retroactive
review of his disability rating. Second, he argues that
the Board’s decision was arbitrary and capricious. We
App. 9
reject both arguments. But before addressing Coleman’s merits-based challenges, we take a brief detour
to consider this Court’s jurisdiction to review Coleman’s appeal.
A.
In its briefing before this Court, the Air Force does
not challenge the district court’s decision finding subject-matter jurisdiction.2 Nonetheless, this Court must
sua sponte evaluate whether jurisdiction is appropriate. See Randall v. United States, 95 F.3d 339, 344–45
(4th Cir. 1996). At issue is whether the essence of
Coleman’s complaint seeks injunctive relief, monetary
relief up to $10,000, or monetary relief exceeding
$10,000. If the answer is the last, then under the
Tucker Act, jurisdiction would be proper only in the
Court of Federal Claims, and review of that court’s decision would take place in the Federal Circuit.
The APA allows private parties to sue the federal
government in district court over final agency actions,
so long as they seek relief other than monetary damages “for which there is no other adequate remedy in a
court.” Id. at 346 (quoting 5 U.S.C. § 704). But where “a
plaintiff has an adequate remedy by suit under the
Tucker Act,” they are precluded from review under the
APA. Id.
When pressed about this matter at oral argument, however, the Air Force continued to argue that the Court did not have
jurisdiction over Coleman’s claims.
2
App. 10
The Tucker Act “grants jurisdiction to the United
States Court of Federal Claims ‘to render judgment
upon any claim against the United States founded
. . . upon . . . any regulation of an executive department, . . . or for liquidated or unliquidated damages
in cases not sounding in tort.’ ” Id. (quoting 28 U.S.C.
§ 1491(a)(1)). Jurisdiction is exclusive in the Court of
Federal Claims for claims over $10,000, while district
courts have concurrent jurisdiction with the Court of
Federal Claims for claims at or under $10,000. Id. at
347 (citing 28 U.S.C. § 1346(a)(2)). And notably here,
“[a] plaintiff can waive damages in excess of $10,000 to
remain in district court.” Id. at 347 n.8. Typically, the
Court of Federal Claims lacks power to grant equitable
relief, although the Tucker Act does “authorize courts
to award injunctive relief in limited circumstances,
when such relief is necessary to provide an entire remedy and when the injunction is ‘an incident of and collateral to’ an award of monetary relief.” Id. at 347
(quoting 28 U.S.C. § 1491(a)(2)).
To determine whether a plaintiff seeks primarily
injunctive relief such that a district court has jurisdiction over his claim, courts must look to the “essence” of
the complaint and whether the relief requested is “not
. . . an incident of, or collateral to, a monetary award.”
Id. For example, in Randall v. United States, this Court
concluded that the district court had jurisdiction over
a plaintiff’s claims under the APA because the plaintiff primarily sought a retroactive promotion, and his
“claim for back pay would only arise if ” that injunctive relief were granted. Id. at 347 (footnote omitted).
App. 11
Accordingly, the Court held that the district court had
jurisdiction to review the plaintiff ’s claim “that the
Army failed to follow its own regulations” regarding
his request for correction of his military records. Id. at
348.
In this case, Coleman’s complaint seeks an injunction for the Board to “correct [his] discharge records
to reflect medical retirement by reason of permanent
disability with a physical disability rating of at least
30%.” J.A. 20. Although he did not specifically request
monetary relief, Coleman’s complaint noted that the
Board’s “refusal to recognize the extent of [his] serviceconnected disability . . . depriv[ed] him of military disability retirement pay and other benefits.” J.A. 7 (emphasis added). But later, by affidavit, Coleman stated
he “wish[ed] to waive any right to military retirement
pay” and identified the other nonmonetary benefits he
hoped to receive by virtue of a higher disability rating—participation in TRICARE, the military health
insurance program; access to on-base amenities and military vacation destinations; and eligibility for “space
available” flights on military aircraft. J.A. 440–41.
Based on Coleman’s waiver, the district court
properly concluded that it had jurisdiction over Coleman’s claims. As noted, plaintiffs may waive damages in excess of $10,000 to remain in district court,
see Randall, 95 F.3d at 347 n.8, which Coleman has
done here by waiving any right to retirement pay.3
The Air Force argued below that Coleman could not waive
retirement pay because if his disability rating were increased, he
3
App. 12
Accordingly, we need not reach the question of whether,
absent his waiver, the essence of his claim seeks injunctive relief.
B.
Moving to the merits, we first consider whether
the district court properly granted summary judgment
in this matter by rejecting Coleman’s arguments that
the Board was required to order a new physical examination prior to its determination of Coleman’s disability rating. We review the district court’s grant of
summary judgment de novo. Nat’l Audubon Soc’y v.
U.S. Army Corps of Eng’rs, 991 F.3d 577, 583 (4th Cir.
2021). And under the APA, we may set aside agency
action of the Board only where it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
We start with an overview of the applicable law.
First, by statute, the Board’s retroactive review of a
member’s disability rating “shall be based on the records of the armed force concerned and such other
evidence as may be presented to the” Board. 10 U.S.C.
would be eligible by law for disability retirement pay under 10
U.S.C. § 1201. But veterans generally must opt between VA disability benefits—which Coleman already receives—and military
retirement pay. See 38 U.S.C. § 5304(a)(1) (veteran cannot receive
duplicate benefits); 38 C.F.R. § 3.750(c)(1)(i) (noting that “[a]
waiver of military retired pay is necessary in order to receive disability compensation when a veteran is eligible for both military
retired pay and disability compensation,” with some exceptions
not applicable here). As such, we see no issue with Coleman’s
preemptive waiver of retirement pay here.
App. 13
§ 1554a(c)(2) (emphases added). Thus, the statute itself does not require a physical examination. And the
Department of Defense echoed a records-based review
in a separate memorandum, noting that “[e]vidence to
be reviewed by the [Board] will be primarily documentary in nature” and that the Board “shall review the
complete case record that served as the basis for the
final Military Department” rating “and, to the extent
feasible, collect all the information necessary for competent review and recommendation.” J.A. 451 (2008 Instruction) (emphases added).
The VA regulation on which Coleman relies, in
contrast, states that when the VA is making a contemporaneous disability determination, it must give veterans with certain mental disorders at least a 50%
disability rating, and then must “schedule an examination within the six month period following the veteran’s discharge to determine whether a change in
evaluation is warranted.” 38 C.F.R. § 4.129. Of course,
§ 4.129 does not generally apply to disability determinations by the military branches; however, the Department of Defense ordered the branches to consider the
regulation when making contemporaneous disability
determinations. J.A. 476 (2008 Policy Memorandum, at
E7.2). The Department instructed the branches that
members with disability ratings of less than 80%
“must be placed on the Temporary Disability Retirement List . . . and re-evaluated within a timeframe
that is not less than 90 days, but within 6 months, from
the date of placement on” that list. Id.
App. 14
Later, the Department gave guidance on how to
also apply § 4.129 in retroactive reviews, explaining
that the Board should assign a minimum 50% rating
for a retroactive six-month period after separation, and
then determine the appropriate rating “based on the
applicable evidence.” J.A. 482 (2009 Policy Memorandum) (emphasis added).
None of this requires the Board to order a new
physical examination before making its decision. The
statute governing retroactive reviews contemplates a
review of the applicant’s records and other evidence
presented to the Board. Only the VA regulation arguably requires a physical examination.4 But Coleman
has not pointed to any authority suggesting that the
Board is bound by that portion of § 4.129, which by its
terms does not contemplate retroactive reviews by the
Board. Only the Department of Defense’s memoranda
make that regulation at all applicable—and yet those
memoranda instruct that in applying § 4.129 retroactively, the Board should place members on the Temporary Disability Retirement List and then make further
rating determinations “based on the applicable evidence.” Id. In other words, the Department of Defense
did not indicate that it was importing a physicalexamination requirement that appears nowhere in
the statute and would contradict the Department’s
The Air Force disputes whether § 4.129 requires a physical examination, as opposed to solely a records review. For the
purposes of our analysis, we assume without deciding that the
instruction to “schedule an examination” denotes a physical examination. 38 C.F.R. § 4.129 (emphasis added).
4
App. 15
guidance elsewhere that suggests the evidence considered will be primarily “documentary.” J.A. 451 (2008
Instruction).
Nor was Coleman entitled to the statutory protections associated with contemporaneous placement
on the Temporary Disability Retirement List. As
background, current service members are placed on
the Temporary Disability Retirement List when they
would qualify for military retirement but for the fact
that their disabilities are not determined to be “of a
permanent nature and stable.” 10 U.S.C. § 1202. Section 1210 sets out procedures for when a service member is on the List, such as the timing for periodic
examinations.
Here, Coleman argues that by retroactively placing him on that List, the Board was then required to
abide by 10 U.S.C. § 1210(a), which states that “[a]
physical examination shall be given at least once every
18 months to each member of the armed forces whose
name is on” the Temporary Disability Retirement List
“to determine whether there has been a change in the
disability for which he was temporarily retired.” Without a physical examination, Coleman contends, the
Board could not remove him from the List or lower his
50% rating.
But again, there is no authority indicating that
the physical-examination requirements of that statute
apply to retroactive reviews. Rather, placement on the
Temporary Disability Retirement List is simply how
the military opted to abide by § 4.129’s requirement of
App. 16
a temporary 50% rating. And § 1210, by its very terms,
does not apply to members like Coleman. Section 1210
refers to physical examinations “to determine whether
there has been a change in the disability for which [a
member] was temporarily retired.” 10 U.S.C. § 1210(a)
(emphasis added). But a plaintiff like Coleman was not
actually temporarily retired—only constructively and
retroactively.
Additionally, any such physical examination would
have been either impossible or, at best, wholly irrelevant to assessing Coleman’s disability. Under Coleman’s reasoning, the Board had two options to comply
with such a requirement: travel back in time to conduct a physical examination at the time of Coleman’s
discharge or conduct an examination at the time of the
Board’s review in 2011—years after the relevant period for assessing any disability. But in suggesting that
the Board should have taken one of these routes, Coleman “misunderstands the role of the” Board. Petri v.
United States, 104 Fed. Cl. 537, 555 (2012). As the
Court of Federal Claims noted when rejecting a nearidentical argument, an “examination and/or hearing
[years later] would not have reflected [the plaintiff ]’s
state of health six months after his . . . separation, the
time period pertinent for the [Board]’s determination
of a permanent disability rating.”5 Id. at 558.
Of course, the VA performed a physical evaluation in February 2006—i.e., during the relevant time period—on which the
Board relied in rendering its decision here, and which Coleman
concedes “was the functional equivalent of what is required pursuant to 38 C.F.R. § 4.129.” Opening Br. at 10. However, he
5
App. 17
Coleman’s interpretation, taken to its logical end,
would swallow up the statutorily defined purpose of
the Board’s review. By arguing that he could not be
taken off the List or have his temporary 50% rating
lowered until the Air Force conducted a physical examination—an examination that necessarily could not
occur until years after his retroactive placement on
the List—Coleman pushes for an interpretation that
would effectively grant a retroactive 50% rating for
years to all individuals whose disabilities are reviewed
by the Board and fall under § 4.129. But that defies
the purpose of the Board: to ensure accurate disability
determinations at the time of a member’s discharge,
“based on the records of the armed force concerned and
such other evidence as may be presented to the” Board.
10 U.S.C. § 1554a(c)(2). We therefore reject Coleman’s
argument that the Board was required to order a new
physical examination before making its determination.
C.
Finally, we consider whether the Board’s decision
to recommend that the Air Force discharge Coleman at
a 10% disability rating was arbitrary and capricious
and not supported by substantial evidence.
Our standard of review renders Coleman’s challenge a tall task. Review of agency action under the
argues that the Air Force, as the rating agency at issue, was legally required to conduct the examination, even though the regulation undisputedly did not apply to the Air Force in 2006.
App. 18
APA is “highly deferential, with a presumption in favor
of finding the agency action valid.” Ohio Valley Env’t
Coal., Inc. v. Aracoma Coal Co., 556 F.3d 177, 192 (4th
Cir. 2009). We will find an action arbitrary or capricious where “the agency relied on factors that Congress
has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the
product of agency expertise.” Nat’l Audubon Soc’y, 991
F.3d at 583 (quoting Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 287–88 (4th Cir. 1999)).
“But so long as the agency ‘provide[s] an explanation
of its decision that includes a rational connection between the facts found and the choice made,’ its decision
should be sustained.” Am. Whitewater v. Tidwell, 770
F.3d 1108, 1115 (4th Cir. 2014) (quoting Ohio Valley,
556 F.3d at 192).
In reaching its decision here, the Board recognized
that the Air Force could only offer compensation “for
those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition,” whereas the VA
“is empowered to compensate service connected conditions and to periodically reevaluate said conditions for
the purpose of adjusting the veteran’s disability rating should the degree of impairment vary over[ ]time.”
J.A. 21–22. The Board decided to apply § 4.129, noting
that although its applicability was questionable, any
App. 19
reasonable doubt had to be resolved in favor of Coleman pursuant to 38 C.F.R. § 4.3.6
Then, in determining Coleman’s permanent rating
at the time of his discharge in April 2006, the Board
considered the Medical Evaluation Board examination
performed in August 2005, a commander’s statement
from the same month, and the VA evaluation performed in February 2006. The August 2005 records
noted that Coleman suffered mild anxiety most of the
time, but that it hadn’t affected his home station duty
performance. The February 2006 examination indicated continued anxiety with mild to moderate symptoms, though Coleman was functioning well in his
civilian job and doing well overall socially.
The Board ultimately concluded that a 10% rating
was appropriate. It recognized that some impairment
at the 30% level “could be surmised from some of the
documented symptoms at the time of the” February
2006 examination, such as “anxiety, monthly panic attacks, and mild problems with intrusive memories, hypervigilance, exaggerated startle response, and mild
avoidance.” J.A. 23. Overall, however, the Board concluded that the various sources “documented [Coleman]’s generally intact interpersonal and occupational
functioning with treatment, and the apparently ‘mild
“When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of
disability such doubt will be resolved in favor of the claimant.” 38
C.F.R. § 4.3.
6
App. 20
or transient’ nature of his symptoms since separation.”
J.A. 24.
Coleman primarily argues that the Board erred by
placing more weight on the August 2005 evaluation,
rather than the February 2006 evaluation that was
closer to his retroactive discharge date. But the Board’s
decision is not arbitrary and capricious simply because
it considered all recent evidence in its evaluation. And
ultimately, we conclude that its decision was supported
by substantial evidence, with a “rational connection
between the facts found and the choice made.”7 Ohio
Valley, 556 F.3d at 192 (citation omitted).
III.
For the reasons detailed above, we affirm the district court’s grant of summary judgment to the Air
Force.
AFFIRMED
We also reject Coleman’s arguments that the Board failed
to apply 38 C.F.R. §§ 4.3 and 4.7. Coleman failed to raise these
arguments below, thereby waiving them, see In re Under Seal, 749
F.3d 276, 285–86 (4th Cir. 2014), and he cannot meet the high
standard of fundamental-error review here.
7
App. 21
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:17-cv-00096-RJC-DSC
BLAIR COLEMAN,
)
)
Plaintiff,
)
ORDER
vs.
)
) (Filed Mar. 30, 2022)
HEATHER WILSON,
Secretary of the Air Force, )
)
Defendant.
)
THIS MATTER comes before the Court on the
United States’ Renewed Motion to Dismiss for Lack of
Subject Matter Jurisdiction and, in the alternative,
Motion for Summary Judgment (the “Motion”) (Doc.
No. 38), Plaintiff ’s Motion for Oral Argument on the
Issue of Jurisdiction (Doc. No. 42), the Magistrate
Judge’s Memorandum and Recommendation (“M&R”)
(Doc. No. 45), and both Parties’ objections to the M&R
(Doc. Nos. 16, 17). For the reasons stated herein the
M&R is ADOPTED.
I.
BACKGROUND
Neither party has objected to the Magistrate
Judge’s statement of the factual and procedural background of this case. Therefore, in addition to the background below, the Court adopts the facts as set forth in
the M&R.
App. 22
A. Factual Background
1. Plaintiff ’s Military Service and Discharge
Plaintiff served as an active-duty staff sergeant in
the Air Force, where he intended to spend his career.
(Doc. No. 1 ¶ 5). In 2004, while deployed in Iraq, he witnessed an airman severely injured by a rocket attack.
(Id. ¶¶ 20-21). Afterwards, Plaintiff began experiencing anxiety disorder. (Id. ¶¶ 21-23).
On March 15, 2005, Plaintiff ’s duty was restricted
due to his anxiety disorder. (Id. ¶ 28). He was referred
to a Medical Evaluation Board (“MEB”) for possible
discharge. (Id.). On August 12, 2005, after a medical
examination (the “MEB Examination”), the MEB referred his claim to an Informal Physical Evaluation
Board (“IPEB”) to determine whether his diagnosis of
anxiety disorder rendered him unfit for military service. (Id. ¶¶ 36-37). In September 2005, the IPEB concluded that Coleman was unfit for military service and
recommended discharge with severance pay and a disability rating of 10%. (Id. ¶ 38). Plaintiff did not dispute the recommendations of the IPEB and waived his
right to a formal hearing. (Id. ¶ 39). Thereafter, on October 24, 2005, Plaintiff was medically separated from
the Air Force with a 10% disability rating due to his
anxiety disorder. (Id. ¶ 41). Plaintiff was not entitled to
retirement benefits, including health care benefits, because his disability rating at separation was less than
30%. (Id.).
Afterward, Plaintiff submitted an application for
disability benefits for, among other things, his anxiety
App. 23
disorder from the Veterans Affairs (“VA”). (Id. ¶¶ 43).
On February 22, 2006, the VA conducted a Compensation & Pension Examination (“the VA Examination”) to
determine his eligibility of benefits. (Id. ¶ 43). The VA
assigned him a disability rating of 30%, for his anxiety
disorder and he began receiving disability compensation benefits from the VA.1 (Id. ¶¶ 44-45).
2. Creation of the Physical Disability Board
of Review
In 2008, Congress created the Physical Disability
Board of Review (“PDBR”) to complete retroactive reviews of disability determinations for members of the
armed forces who were separated due to a medical
condition with a disability rating of 20% or less between September 11, 2001 and December 31, 2009, and
who were not eligible for retirement. (See 10 U.S.C.
§ 1554a). Upon the eligible veteran’s request, the
PDBR reviews the findings and decisions of the military’s disability assessment, considers any evidence
presented by the veteran, and determines whether a
recharacterization or modification of the disability rating should be made. 10 U.S.C. § 1554a (c)-(d).
The Department of Defense Instruction establishing policies, responsibilities, and procedures for the
PDBR, requires the PDBR to “(a) Compare any VA disability rating for the specifically military-unfitting
The VA also assigned Plaintiff an additional 10% disability
rating due to other, not relevant, physical injuries, for a total of
40% disability rating.
1
App. 24
condition(s) with the PEB combined disability rating;
and (b) Consider any variance in its deliberations and
any impact on the final PEB combined disability rating, particularly if the VA rating was awarded within
12 months of the former Service member’s separation.”
(Department of Defense Instruction 6040.44 (June 27,
2008)). Additionally, the PDBR conducts reviews of
the disability rating in accordance with the Veterans
Affairs Schedule for Rating Disabilities (“VASRD”) in
effect at the time of separation. (Id.).
Under VASRD for mental health disorders,
“[w]hen a mental disorder that develops in service as a
result of a highly stressful event is severe enough to
bring about the veteran’s release from active military
service, the rating agency shall assign an evaluation of
not less than 50 percent and schedule an examination
within the six month period following the veteran’s
discharge to determine whether a change in evaluation
is warranted.” 38 C.F.R. § 4.129. The VASRD requires
at least a 30% disability rating when the veteran has
“[o]ccupational and social impairment with occasional
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names,
directions, recent events).” 38 C.F.R. § 4.130. The
VASRD requires a 10% disability rating when the veteran has “[o]ccupational and social impairment due to
App. 25
mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only
during periods of significant stress, or symptoms controlled by continuous medication.” Id.
3. PDBR Review of Plaintiff ’s Disability
Rating
On April 16, 2011, Coleman filed an application for
review by the PDBR, stating “I should have been medically retired. I was a career airman planning on making the Air Force my career. I feel 10% is unfair
considering I’m still suffering from symptoms.” (Doc.
No. 1-1 at 1; Doc. No. 10 at 2). On May 17, 2012, the
PDBR issued its decision. (Doc. No. 1-1).
First, the PDBR determined pursuant to VASRD
§ 4.129 that Coleman should have been placed on the
Temporary Disability Retired List (“TDRL”) for six
months at a 50% disability rating beginning October
24, 2005, rather than being permanently discharged on
that date. (Doc. No. 1-1 at 2). It determined he then
should be permanently discharged on April 24, 2006,
after six months on the TDRL. (Id.).
Next, the PDBR determined the 10% permanent
disability rating was proper. (Id. at 4). The PDBR’s
analysis “centered on a 10% versus a 30% rating.” (Id.
at 3). It reasoned that a 30% rating “could be surmised
from some of the documented symptoms at the time of
the post separation [VA Examination] . . . [h]owever,
. . . the [MEB Examination], commander’s statement,
and post separation [VA Examination] documented
App. 26
[Plaintiff ’s] generally intact interpersonal and occupational functioning with treatment, and the apparently
‘mild or transient’ nature of his symptoms since separation.” (Id. at 4).
B. Procedural Background
On June 8, 2017, Plaintiff filed this action, seeking
an injunction pursuant to the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et seq., to correct his
discharge records to reflect a medical retirement by
reason of permanent disability with a physical disability rating of at least 30%. (Doc. No. 1). The Court dismissed the action for lack of subject matter jurisdiction
because it found the “true nature of Plaintiff ’s Complaint takes a monetary form” and concluded the action should have been filed in the Court of Federal
Claims. (Doc. No. 19). Coleman appealed to the Fourth
Circuit, where he filed for the first time a Declaration
waiving “any right to military retirement pay.” (Doc.
No. 39-1 at 2). Based on the Plaintiff ’s Declaration, the
Fourth Circuit remanded to this Court to “reconsider
its jurisdictional ruling in light of the Coleman Affidavit filed on appeal.” (Doc. No. 25 at 1).
On remand, the Defendant filed its Renewed Motion to Dismiss for Lack of Subject Matter Jurisdiction
and, in the alternative, Motion for Summary Judgment, which Plaintiff opposes. (Doc. Nos. 38, 39, 41, 42,
44). The Magistrate Judge recommended that the
Court deny Defendant’s motion to dismiss for lack of
subject matter jurisdiction in light of Plaintiff ’s
App. 27
waiver, and grant Defendant’s motion for summary
judgment because the PDBR decision was not arbitrary or capricious. (Doc. No. 45). Both parties objected.
(Doc. No. 46 & 47).
II.
STANDARD OF REVIEW
A district court may assign dispositive pretrial
matters, including motions to dismiss, to a magistrate
judge for “proposed findings of fact and recommendations.” 28 U.S.C. § 636(b)(1)(A) & (B). The Federal Magistrate Act provides that a district court “shall make a
de novo determination of those portions of the report
or specified proposed findings or recommendations to
which objection is made.” Id. § 636(b)(1)(C); Fed. R. Civ.
P. 72(b)(3). However, “when objections to strictly legal
issues are raised and no factual issues are challenged,
de novo review of the record may be dispensed with.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). De
novo review is also not required “when a party makes
general and conclusory objections that do not direct the
court to a specific error in the magistrate’s proposed
findings and recommendations.” Id.
III. DISCUSSION
A. Subject Matter Jurisdiction
The Magistrate Judge concluded this Court has
subject matter jurisdiction over Plaintiff ’s request for
injunctive relief under the Administrative Procedures
Act (“APA”). (Doc. No. 45). Defendant argues the Court
lacks subject matter jurisdiction and that the Court of
App. 28
Federal Claims has exclusive jurisdiction under the
Tucker Act. (Doc. No. 46).
The United States has sovereign immunity and
cannot be sued without express consent. Randall v.
U.S., 95 F.3d 339, 345 (4th Cir. 1996). Here, the Court
must examine the interplay between two federal statutes that waive sovereign immunity – the Tucker Act
and the APA. See Randall, 95 F.3d at 345 (“[P]laintiffs
in cases such as this one, challenging a decision of a
board for the correction of military records, have used
one of two avenues to establish federal jurisdiction: the
Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491; and the Administrative Procedures Act (“APA”), 5 U.S.C. §§ 701–
706.”). “The interplay between the Tucker Act and the
APA is somewhat complicated and raises some significant issues of federal court jurisdiction.” Randall, 95
F.3d at 346.
The Tucker Act allows private parties to sue the
federal government in the Court of Federal Claims for
claims “founded either upon the Constitution, or any
Act of Congress or any regulation of an executive department, or upon any express or implied contract with
the United States, or for liquidated or unliquidated
damages in cases not sounding in tort.”2 28 U.S.C.
The Tucker Act is encompassed in two statutes: 28 U.S.C.
§ 1491 (commonly referred to as the “Big Tucker Act”) and 28
U.S.C. § 1346(a)(2) (commonly referred to as the “Little Tucker
Act”). The Big Tucker Act grants exclusive jurisdiction to the
United States Court of Federal Claims for claims more than
$10,000. The Little Tucker Act allows for concurrent jurisdiction
with the district courts for civil actions or claims against the
United States not exceeding $10,000. 28 U.S.C. § 1346(a)(2);
2
App. 29
§ 1491(a)(1). The Tucker Act provides exclusive jurisdiction in the Court of Federal Claims for actions for
more than $10,000. Randall, 95 F.3d at 346. The
Tucker Act does not, on its face, grant the Court of Federal Claims equitable power, but it does authorize the
award of injunctive relief “in limited circumstances,
when such relief is necessary to provide an entire remedy and when the injunction is ‘an incident of and collateral to’ an award of monetary relief.” Randall, 95
F.3d at 346-47 (citing 28 U.S.C. § 1491(a)(2)). As such,
the Court of Federal Claims may provide claimants
with an “entire remedy,” including “restoration to office
or position, placement in appropriate duty or retirement status, and correction of applicable records.” 28
U.S.C. § 1491(a)(2); see also Mitchell v. United States,
930 F.2d 893, 896 (Fed. Cir. 1991).
The APA on the other hand allows private parties
to sue the federal government in district court over final agency actions. Randall, 95 F.3d at 346. The waiver
of sovereign immunity in the APA is limited to suits
seeking relief other than monetary damages. Id. Review under the APA is also precluded where a plaintiff
has an adequate remedy under the Tucker Act. Randall, 95 F.3d at 346. Thus, to bring a claim under the
APA a plaintiff must prove that (1) he seeks relief
other than money damages, and (2) there is no other
Randall, 95 F.3d at 346-47; Wright & Miller, Fed. Practice & Proc.
§ 3657. “[A] primary purpose of the Tucker Act is to ensure that a
central judicial body adjudicates most claims against the United
States Treasury.” Randall, 95 F.3d at 346 (internal quotation
marks omitted).
App. 30
adequate remedy. 5 U.S.C. §§ 702, 704; Hoffler v. Hagel,
122 F. Supp. 3d 438, 442 (E.D.N.C. 2015), aff ’d in part,
dismissed in part sub nom. Hoffler v. Mattis, 677 F.
App’x 119 (4th Cir. 2017) (citations omitted).
First, to determine whether a plaintiff seeks monetary relief, courts look to the “essence” of the complaint. Randall, 95 F.3d at 347. The Court previously
ruled that the nature of Plaintiff ’s Complaint is monetary relief and belongs in front of the Court of Federal
Claims, noting the Complaint specifically references
that the 10% disability rating deprived Plaintiff of retirement pay. (Doc. No. 19). Now the Court must decide,
at the direction of the Fourth Circuit, if the essence of
Plaintiff ’s Complaint changed from monetary to equitable relief based on the Plaintiff ’s express waiver of
“any right to military retirement pay.” (Doc. No. 39-1
at 2).
In analogous jurisdictional issues, courts
acknowledge district courts may exercise jurisdiction
under the Little Tucker Act when plaintiffs waive their
right to monetary relief over $10,000. See e.g. Stone v.
U.S., 683 F.2d 449, 454 (D.C. Cir. 1982) (“[P]laintiff ’s
express waiver was sufficient to bring his case within
the District Court’s jurisdiction.”); Goble v. Marsh, 684
F.2d 12, 13 (D.C. Cir. 1982) (“Plaintiffs whose damages
exceed $10,000 may waive all claims greater than
$10,000 in order to establish the jurisdiction of the
District Court.”); U.S. v. Park Place Associates, Ltd.,
563 F.3d 907, 927 (9th Cir. 2009) (“Parties may waive
their right to receive more than $10,000 in order to
satisfy the Little Tucker Act and obtain jurisdiction in
App. 31
the district court.”); Woodard v. Marsh, 658 F.2d 989,
992 (5th Cir. 2981) (“In his amended complaint,
Woodard waived all claims for damages in excess of
$9,999.99. Therefore, the district court had jurisdiction
of his monetary claims.”); Roedler v. Dep’t of Energy,
255 F.3d 1347, 1351 (Fed. Cir. 2001) (“A district court
may permit multi-plaintiff Little Tucker Act cases to
proceed when each plaintiff waives recovery in excess
of $10,000, even when potential liability exceeds
$10,000.”); Wright & Miller, Federal Practice and Proc.
§ 3657 (“[T]he plaintiff may waive all damages over
$10,000 in order to bring the claim within the district
court’s subject matter jurisdiction.”). Similarly, district
courts exercise jurisdiction over claims against the
United States under the APA where plaintiffs dismiss
causes of actions that would otherwise prevent the district courts from exercising jurisdiction. See Bennett v.
Murphy, 166 F. Supp. 3d 128, 131 (D. Mass 2016) (exercising jurisdiction under APA where “Bennett previously waived his claim for monetary damages in the
form of retirement back pay and allowances; accordingly, he seeks only injunctive and declaratory relief.”);
Clark v. Murphy, No. 5:14-cv-565-FL, 2016 WL
3102016, at *3 (E.D.N.C. June 2, 2016) (“Plaintiff seeks
leave to amend his complaint to waive all monetary
and injunctive relief previously sought in his complaint, and to advance his arguments in support of vacating and remanding the Board’s decision under the
APA. . . . Plaintiff ’s waiver of all claims for monetary
and injunctive relief reconciles his remaining claim
with the jurisdiction of this court, pursuant to the APA.
Accordingly, the court grants plaintiff ’s motion for
App. 32
leave to amend. . . .” (citations omitted)). The Court
finds these cases persuasive and agrees with the Magistrate Judge that after waiving any right to military
retirement pay, the essence of the relief Plaintiff seeks
is equitable relief to alter or amend his military records for purposes other than backpay or retirement
pay. Plaintiff provides a number of non-monetary benefits for which he will become eligible if he is ultimately successful, such as healthcare benefits.
Defendant argues the essence of Plaintiff ’s Complaint is monetary because he seeks relief based on 10
U.S.C. § 1201, a money-mandating statute. Plaintiff
brings his Complaint under 10 U.S.C. § 1554a, not 10
U.S.C. § 1201, as Defendant asserts. But Defendant
argues 10 U.S.C. § 1554a triggers 10 U.S.C. § 1201,
such that the Complaint seeks relief for monetary
benefits. While 10 U.S.C. § 1554a may implicate a
money-mandating statute, § 1554a itself is not a
money-mandating statute. The Federal Circuit in
Quesada v. United States, concluded that 10 U.S.C.
§ 1554a is not a money-mandating statute. 136 Fed. Cl.
635 (Fed. Cir. 2018). Additionally, a Complaint does not
seek monetary relief solely because it may result in
monetary gain from the government or that it may implicate a money-mandating statute. Powe v. Secretary
of Navy, 35 F.3d 556 (4th Cir. 1994) (“[A] suit seeking
a military discharge upgrade is not for money damages, even though an upgrade would entitle the recipient to payment for leave accrued at the time of
discharge.”).
App. 33
Next, the Court of Federal Claims may only award
equitable relief “in limited circumstances, when such
relief is necessary to provide an entire remedy and
when the injunction is ‘an incident of and collateral to’
an award of monetary relief.” Randall, 95 F.3d at 34647 (citing 28 U.S.C. § 1491(a)(2)). Since Plaintiff seeks
equitable relief and the Court of Federal Claims has
limited authority to provide equitable relief, the Court
agrees with the Magistrate Judge that the Court of
Federal Claims does not provide an adequate remedy.
See Smith v. United States, ___ Fed. Cl. ___, 2022 WL
778626, at * n.5 (Fed. Cir. 2022) (“This is not to say,
however, that a covered individual whose claim in this
court was time-barred as of the date of his PDBR decision would have no right to judicial review in any
court. Other plaintiffs have brought claims in federal
district court challenging PDBR decisions under the
Administrative Procedure Act.”). Accordingly, this
Court has jurisdiction under the APA.
B. Summary Judgment
The APA provides for judicial review of final
agency actions. 5 U.S.C. §§ 702, 704. Under the APA
“[t]he reviewing court shall . . . (2) hold unlawful and
set aside agency action, findings, and conclusions
found to be – (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). Although the court must conduct a
careful review of the agency’s decision, “the ultimate
standard of review is a narrow one.” Marsh v. Oregon
Nat. Res. Council, 490 U.S. 360, (1989) (citation
App. 34
omitted). Moreover, the standard is highly deferential
“which presumes the validity of the agency’s action.”
Natural Res. & Def. Council, Inc. v. Envtl. Protection
Agency, 16 F.3d 1395, 1400 (4th Cir. 1993). Courts
should not reweigh the evidence, make credibility determinations, or substitute their judgment for that of
the agency. Downey v. U.S. Dep’t of the Army, 685 Fed.
App’x 184, 189 (4th Cir. 2017). Rather, courts should
determine whether the ultimate conclusion is supported by substantial evidence in the record. Id. at 190.
“[A]n agency must examine the relevant data and
articulate a satisfactory explanation for its action including a rational connection between the facts found
and the choice made.” Id. “An action is arbitrary or capricious if ‘the agency relied on factors that Congress
has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the
product of agency expertise.’ ” Nat’l Audubon Soc. v.
U.S. Army Corps of Engineers, 991 F.3d 577, 583 (4th
Cir. 2021) (quoting Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 287-88 (4th Cir. 1999)).
“[S]o long as the agency provides an explanation of its
decision that includes a rational connection between
the facts found and the choice made, its decision should
be sustained.” Am. Whitewater v. Tidwell, 770 F.3d
1108, 1115 (4th Cir. 2014) (quotations and citations
omitted).
App. 35
This standard of review is narrow and “military
administrators are presumed to act lawfully and in
good faith like other public officers, and the military is
entitled to substantial deference in the governance of
its affairs.” Petri v. U.S., 104 Fed. Cl. 537, 550 (Fed. Cl.
2012).
The Magistrate Judge concluded the PDBR’s decision was not arbitrary and capricious. Plaintiff objects
and argues the PDBR’s decision was arbitrary and capricious.
1. Whether Plaintiff Was Required to Receive a Follow-Up Examination Pursuant to 38 C.F.R. § 4.129 After Being
Placed On TDRL
Plaintiff argues the decision is arbitrary and capricious because (1) the PDBR did not comply with 38
C.F.R. § 4.129 since Plaintiff did not undergo a followup examination after being placed on TDRL and before
his final date of separation; and (2) the Magistrate
Judge erred by relying on Petri v. U.S., 104 Fed. Cl. 537
(Fed. Cl. 2012).
Department of Defense Instruction 6040.44 requires the PDBR to conduct reviews of the disability
rating in accordance with the VASRD. The VASRD provides, “[w]hen a mental disorder that develops in service as a result of a highly stressful event is severe
enough to bring about the veteran’s release from active
military service, the rating agency shall assign an
evaluation of not less than 50 percent and schedule an
App. 36
examination within the six month period following the
veteran’s discharge to determine whether a change in
evaluation is warranted.” 38 C.F.R. § 4.129. Here, pursuant to § 4.129, the PDBR constructively placed
Plaintiff on TDRL for six months. Plaintiff did not undergo a follow-up examination before the PDBR’s recommended final separation date in April 2006.
The purpose of the PDBR is to retroactively review
certain disability determinations made between September 11, 2001 and December 31, 2009. Requiring a
retroactive physical examination would effectively
render the application of § 4.129 to PDBR reviews
meaningless because each application of § 4.129 would
require either (a) a retroactive physical examination
that is impossible to complete, or (b) every person
placed on TDRL to remain on TDRL for years until
their disability becomes legally permanent or they
undergo a physical examination ordered by the PDBR
years later. Like the Magistrate Judge, the Court finds
Petri, instructive here. 104 Fed. Cl. 537 (Fed. Cir. 2012).
In Petri, the court reviewed whether the PDBR’s
review of a former member of the Air Force was arbitrary and capricious when it recommended that the
plaintiff ’s records be retroactively corrected to reflect
a 50% disability rating for six months on TDRL, and
thereafter awarded a permanent disability rating of
10%, without the plaintiff undergoing a retroactive
physical examination in the time between the TDRL
and permanent discharge date. Id. at 549. The court
analyzed the role of the PDBR, the Department of
Defense Instruction and related memoranda, and
App. 37
ultimately concluded the PDBR board acted reasonably in assigning a permanent disability rating of 10%
to the plaintiff without a new physical or mental examination after placing the plaintiff of TDRL. Id. at
558. The court reasoned that an examination years
later would not reflect the plaintiff ’s state of health six
months after being placed on TDRL and noted that the
dependency on medical records was critical to the state
of health at the time of the plaintiff ’s separation. Id.
Plaintiff argues Petri is distinguishable because in
Petri the plaintiff ’s VA disability rating was more than
six months after the plaintiff was released from TDRL
and the PDBR expressed concerns that the plaintiff exaggerated his symptoms to the VA. These distinctions
are immaterial to the question of whether, for purposes
of the PDBR retroactive review, Plaintiff was required
to undergo a physical examination before being taken
off TDRL.
Plaintiff also relies on Cook v. United States, for
his position that the PDBR was required to order a
physical examination before taking Plaintiff off TDRL.
123 Fed. Cl. 277 (Fed. Cl. 2015). Faced with the same
issue, the Cook court concluded the PDBR could not
remove the plaintiff from TDRL in the absence of a
follow-up examination. Id. at 308. However, unlike
Petri, the Cook court considered Army regulation and
policy rather than Air Force regulation and policy. In
addition, interestingly, the Cook court recognized that
a follow-up examination is an “impossible task” but
nevertheless concluded the plaintiff was required to
remain on TDRL until legally his temporary disability
App. 38
rating became permanent after five years since a follow-up examination was not possible. Id. The court
reasoned that “[a]llowing the Army to make a determination with such evidence (and lack of evidence) is,
once again, tantamount to rewarding the Army for its
own error—its failure to schedule the follow-up examination for plaintiff pursuant to statute and regulation.” Id. The Petri court’s reasoning is more
persuasive. As discussed, the Cook court’s conclusion
renders the application of § 4.129 meaningless in the
context of retroactive reviews by the PDBR. Moreover,
allowing such a determination will not “reward” the
relevant military branch “for its own error” when the
PDBR recommends placing individuals retroactively
on TDRL years later based on legislation not in existence at the time of the individual’s original separation.
In sum, the PDBR’s failure to require Plaintiff to
undergo a follow-up examination after being placed on
TDRL and before his final date of separation was not
arbitrary and capricious.
2. Whether PDBR Properly Considered the
Evidence and Reached a Conclusion
Supported by Substantial Evidence
Plaintiff also argues (1) the PDBR failed to consider Plaintiff ’s correct date of permanent disposition;
(2) the PDBR failed to consider the severity of Plaintiff ’s condition at his permanent date of disposition;
(3) the PDBR failed to consider how Plaintiff ’s condition could have worsened in the two months after his
App. 39
VA Examination but before he was permanently separated; (4) the PDBR erred in reasoning that the purposes of the MEB and VA examinations would result
in different disability ratings; and (5) the PDBR’s decision was not supported by substantial evidence. The
thrust of these arguments is that the PDBR’s decision,
in places, referred to Plaintiff ’s date of separation in
October 2005, rather than April 2006, and the PDBR
failed to consider the medical examinations and Plaintiff ’s condition in relation to his recommended
amended final date of separation of April 24, 2006.
As an initial matter, the PDBR itself recommended correcting Plaintiff ’s final separation date
from October 2005 to April 2006, after determining he
should be placed on TDRL for six months. The PDBR’s
decision makes clear that the PDBR considered the
evidence in relation to both TDRL and final separation
date in April 2006. The PDBR’s decision is not arbitrary and capricious solely because the decision referred to two medical examinations based on their
relation to Plaintiff ’s original separation date rather
than its recommended modified separation date. When
explaining its conclusion, the PDBR stated “[w]ith regard to the permanent rating at the end of the constructive period of TDRL [the evidence] . . . did not
approach the 50% rating.” (Doc. No. 1-1 at 3). Similarly,
the PDBR’s decision discussed in detail the VA Examination, which was the closest examination in time to
his final separation date, and indicated throughout
that the PDBR considered the VA Examination in
reaching its conclusion.
App. 40
Plaintiff argues the PDBR failed to consider the
potential worsening of his condition in the two months
between the VA Examination and his final separation
date in April 2006. However, the PDBR observed that
records indicated “recurring/relapsing nature of
[Plaintiff ’s] condition during which significant social
and occupational impairment was likely; none were
seen during the time leading up to [October 2005] or
following [October 2005] up to the time of the postseparation [VA Examination].” (Doc. No. 1-1 at 4). It
noted it had to make a recommendation based on the
severity of the condition at the time of permanent disposition and not on future possible worsening. (Id.).
The PDBR reviewed the evidence and reached its conclusion based on the evidence available to it, including
the VA Examination. While the PDBR did not have the
benefit of an examination on or immediately before or
after April 24, 2006, its discussion indicates it considered the potential for Plaintiff ’s condition to worsen
following the VA Examination, and concluded, based
on the evidence, the 10% disability rating was more
appropriate than 30%, which is supported by substantial evidence. Finally, the PDBR was not required to
interpret the evidence in the same way or reach the
same conclusion as the VA. The PDBR is charged with
its own review and application of VASRD separate
from the VA. Accordingly, the PDBR’s decision was not
arbitrary and capricious and is supported by substantial evidence.
App. 41
IV. CONCLUSION
IT IS, THEREFORE, ORDERED that:
1.
The Magistrate Judge’s M&R, (Doc. No. 45), is
ADOPTED;
2.
Defendant’s Renewed Motion to Dismiss for
Lack of Subject Matter Jurisdiction and, in
the alternative, Motion for Summary Judgment, (Doc. No. 38), is GRANTED IN PART
and DENIED IN PART. Specifically, its Motion to Dismiss for Lack of Subject Matter Jurisdiction is DENIED and its Motion for
Summary Judgment is GRANTED.
4.
Plaintiff ’s Motion for Oral Argument on the
Issue of Jurisdiction, (Doc. No. 42), is DENIED as moot.
The Clerk is directed to close this case.
Signed: March 30, 2022
/s/ Robert J. Conrad, Jr.
Robert J. Conrad, Jr.
[SEAL]
United States District Judge
App. 42
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF
NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:17-CV-00096-RJC-DSC
BLAIR COLEMAN,
Plaintiff,
v.
HEATHER WILSON,
Secretary of the
Air Force,
Defendant.
)
)
MEMORANDUM
)
AND
)
) RECOMMENDATION
)
(Filed Apr. 16, 2021)
)
)
)
THIS MATTER is before the Court on the
“United States’ Renewed Motion to Dismiss for Lack of
Subject Matter Jurisdiction and, in the Alternative,
Motion for Summary Judgment,” Doc. 38, filed on February 22, 2021, and the parties’ associated briefs and
exhibits.
The matter has been referred to the undersigned
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and
this Motion is now ripe for the Court’s consideration.
Having fully considered the arguments, the record, and the applicable authority, the undersigned respectfully recommends that Defendant’s Motion to
Dismiss be denied and Defendant’s Motion for Summary Judgment be granted as discussed below.
App. 43
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Blair Coleman seeks injunctive relief under the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 701 et seq., to correct his discharge records to reflect
medical retirement from the United States Air Force
by reason of permanent disability. Doc. 1 at 14. Coleman served as an active-duty staff sergeant and witnessed service members being severely injured and
killed during a mortar attack in Iraq. Id. at 15. As a
result of the trauma he experienced from the attack,
he was entered into the Disability Evaluation System
process. Id. at 6. His claim was forwarded to an Informal Physical Evaluation Board (IPEB) to determine
whether his diagnosis of anxiety disorder rendered
him unfit for military service. Id. On September 9,
2005, the IPEB concluded that Coleman was unfit for
military service and assigned him a disability rating of
ten percent. Id. at 8.
On October 24, 2005, he was medically separated
from the Air Force. Id. at 8. Based upon his ten percent
disability rating, Coleman was not entitled to continuing retirement benefits including health care, because
his disability rating at separation was less than thirty
percent. Id. On March 15, 2006, Veterans Affairs (“VA”)
assigned him a disability rating of thirty percent effective October 25, 2005. Id. at 9. He began receiving disability compensation benefits from the VA. Id.
In 2008, Congress passed the National Defense
Authorization Act. See 10 U.S.C. § 1554. The Act
mandated retroactive consideration of disability
App. 44
determinations for members of the armed forces who
were separated due to a medical condition with a disability rating of twenty percent or less between September 11, 2001 and December 31, 2009. Id. The Act
created the Physical Disability Board of Review
(“PDBR”) to determine whether the Veterans Affairs
Schedule for Rating Disabilities (“VASRD”) guideline
codified at 38 C.F.R. § 4.129 (mental disorders due to
traumatic stress) applied to cases like Coleman’s. Doc.
1-1 at 2.
On April 16, 2011, Coleman requested a hearing
before the PDBR, stating “I should have been medically retired. I was a career airman planning on making the Air Force my career. I feel 10% is unfair
considering I’m still suffering from symptoms.” Doc. 1
at 11; Doc. 1-1 at 1; Doc. 10 at 2. On May 17, 2012, the
PDBR issued its decision, determining pursuant to
VASRD § 4.129 that Coleman should have been placed
on the Temporary Disability Retired List (“TDRL”) for
six months at a fifty percent disability rating beginning October 24, 2005 rather than being permanently
discharged on that date. Doc. 1-1 at 4. The Board concluded that he would have been permanently discharged on April 24, 2006 after six months on the
TDRL. Id. The PDBR affirmed the ten percent disability rating. Id. Coleman did not undergo a follow-up
examination before his removal from the TDRL. Doc. 1
at 11-12.
On April 8, 2014, the VA revised his diagnosis to
Post-Traumatic Stress Disorder and increased his
App. 45
disability rating to fifty percent effective February 8,
2013. Id. at 8.
On June 8, 2017, he filed this action to challenge
the PDBR’s decision under the APA. Doc. 1. The Court
granted the United States’ Motion to Dismiss for lack
of subject matter jurisdiction, finding that the “true
nature of Plaintiff ’s Complaint takes a monetary
form.” Doc. 19 at 5. On May 30, 2018, Coleman appealed that Order to the Fourth Circuit. Docs. 22, 24.
After Coleman filed a Declaration “waiving any right
to military retirement pay,” Doc. 39-1 at 2, the Fourth
Circuit remanded the case to “reconsider its jurisdictional ruling in light of the Coleman Affidavit filed on
appeal.” Doc. 25 at 1; Doc. 25-1.
On February 22, 2021, the Government filed a Renewed Motion to Dismiss for Lack of Subject Matter
Jurisdiction and, in the Alternative, Motion for Summary Judgment. Doc. 38.
II.
DISCUSSION
A. Standard of Review – Rule 12(b)(1)
Federal district courts have limited jurisdiction.
United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337,
347 (4th Cir. 2009). “They possess only that power
authorized by Constitution and statute.” Randall v.
United States, 95 F.3d 339, 344 (4th Cir. 1996). “Thus,
when a district court lacks subject matter jurisdiction
over an action, the action must be dismissed.”
Vuyyuru, 555 F.3d at 347.
App. 46
Federal subject matter jurisdiction is a threshold
issue for the Court, Jones v. Am. Postal Workers Union,
192 F.3d 417, 422 (4th Cir. 1999), and a challenge to
subject matter jurisdiction is properly considered on a
motion under Fed. R. Civ. P. 12(b)(1). Clinton v. Brown,
No. 3:15-cv-0048-FDW-DSC, 2015 WL 4941799
(W.D.N.C. Aug. 19, 2015).
The burden of establishing federal subject matter
jurisdiction rests on the party asserting it. See Adams
v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). The moving
party should prevail on a motion to dismiss for lack of
federal jurisdiction if “material jurisdictional facts are
not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg &
Potomac R.R. Co. v. U.S., 945 F.2d 765, 768 (4th Cir.
1991).
In determining whether a factual basis for subject
matter jurisdiction exists for purposes of deciding a
Rule 12(b)(1) motion to dismiss, the court is to regard
allegations in the pleadings as “mere evidence on the
issue,” and may consider evidence outside the pleadings without converting the motion to one for summary
judgment. Id. at 768; Fed. R. Civ. P. 12(d). “A trial court
may consider evidence by affidavit, depositions or live
testimony without converting the proceeding to one
for summary judgment.” Adams, 697 F.2d at 1219 (citations omitted).
A service member may be entitled to retirement
benefits or medical severance pay if he becomes disabled while on active duty. 10 U.S.C. §§ 1201-1221. The
App. 47
Secretary of each service is authorized to place members in disability retirement status upon a finding that
the member was unable to perform military duties by
reason of disability while on active duty. 10 U.S.C.
§ 1201. A member is placed on the TDRL for a period
not to exceed five years if the disability is not considered permanent. 10 U.S.C. § 1210. If the disability is
considered permanent and rated as thirty percent disabling or higher, the member is placed in permanent
retired status. 10 U.S.C. § 1201. If rated less than
thirty percent, the member is only entitled to medical
severance pay. 10 U.S.C. § 1203
B. The Court has subject matter jurisdiction over Coleman’s Complaint.
Coleman challenges the disability rating of ten
percent that he received upon his discharge from the
Air Force in 2005. See Doc. 10 at 2. The Government
asserts that Coleman is bringing a monetary claim and
thus, the Tucker Act, 28 U.S.C. § 1491, provides an adequate remedy. But Coleman invokes the APA, 5 U.S.C.
§ 706, as the basis for subject matter jurisdiction.
The Fourth Circuit explained the relationship between the Tucker Act and the APA in Randall v. United
States:
The interplay between the Tucker Act and the
APA is somewhat complicated and raises some significant issues of federal court jurisdiction. Determining the proper statutory framework for the
district court’s jurisdiction in this case is critical
App. 48
because it affects the appellate jurisdiction of this
court. The United States Court of Appeals for
the Federal Circuit, not the regional courts
of appeals, has exclusive jurisdiction over
appeals in cases based “in whole or in part”
on the Tucker Act. 28 U.S.C. § 1295(a)(2). The
provision of 28 U.S.C. § 1295(a)(2) is mandatory
and cannot be waived by the parties, because it
relates to the subject matter jurisdiction of this
court.
95 F.3d 339, 346 (4th Cir. 1996) (emphasis added) (internal citations omitted). The APA limits district court
jurisdiction to claims for “relief other than money damages,” and “for which there is no other adequate remedy in a court.” 5 U.S.C. §§ 702, 704. The Tucker Act,
like the APA, waives the United States’ sovereign immunity from suit. 28 U.S.C. § 1491. Under the Tucker
Act, the U.S. Court of Federal Claims has exclusive jurisdiction for monetary claims against the United
States exceeding $10,000. See 28 U.S.C. §§ 1346(a)(2),
1491(a)(1). See also Randall, 95 F.3d at 346–47.
But the Tucker Act only precludes APA judicial review “when plaintiff has an adequate remedy by suit
under the Tucker Act.” Randall, 95 F.3d at 346. The
Supreme Court has recognized a “strong presumption
that Congress intends judicial review of agency action,” so that “judicial review of a final agency action
by an aggrieved person will not be cut off unless there
is persuasive reason to believe that such was the purpose of Congress.” Bowen v. Michigan Acad. of Fam.
Physicians, 476 U.S. 667, 670 (1986).
App. 49
Therefore, to have jurisdiction over an APA claim,
the court must find that (1) Coleman seeks relief other
than money damages and (2) that there is no other adequate remedy in a court, including the U.S. Court of
Federal Claims. See Hoffler v. Hagel, 122 F. Supp. 3d
438, 442 (E.D.N.C. 2015), aff ’d in part, dismissed in
part sub nom. Hoffler v. Mattis, 677 F. App’x 119 (4th
Cir. 2017) (citing 5 U.S.C. §§ 702, 704; Bowen v. Massachusetts, 487 U.S. 879, 891 (1988); James v. Caldera,
159 F.3d 573, 578–79 (Fed. Cir. 1998)).
a. Coleman seeks injunctive relief.
In determining whether Coleman states a claim
under the Tucker Act, the court looks to the “essence of
his complaint.” Hoffler v. Hagel, 122 F. Supp. 3d 438,
443 (E.D.N.C. 2015) (quoting Randall, 95 F.3d at 347)
(citing James, 159 F.3d at 579) (“Our inquiry, however,
does not end with the words of the complaint, however
instructive they may be, for we still must look to the
true nature of the action in determining the existence
or not of jurisdiction.”) (internal quotation omitted)).
As for the first requirement, the Government contends
that Coleman seeks monetary relief.
Based upon Coleman’s declaration and the Complaint, the Court finds that the essence of his Complaint is for injunctive relief to alter or amend his
military records. See Richmond, Fredericksburg &
Potomac R.R. Co., 945 F.2d at 768 (explaining that the
court may consider evidence outside the pleadings
without converting the motion to one for summary
App. 50
judgment). In his Declaration, Plaintiff specifically
waived “any right to military retirement pay.” Doc.
39-1 at 2. The injunctive relief sought would make
Coleman eligible to:
•
participate in the “Tricare” military health insurance system;
•
enter military bases and utilize amenities
such as shopping at the post/base exchange;
•
stay at numerous campgrounds and other military vacation destinations, such as Shades of
Green at Walt Disney World Resort in Florida,
Hale Koa Hotel on Waikiki Beach in Hawaii,
and numerous on base hotels and lodging in
Germany and Italy;
•
enjoy travel privileges aboard military aircrafts;
•
wear his military uniform in public; and
•
have burial privileges in national cemeteries.
Doc. 39-1 at 1–2. See Smalls v. United States, 471 F.3d
186, 190 (D.C. Cir. 2006).
While injunctive relief may lead to additional benefits for Coleman and his family, the essence of his
claim is for equitable relief. See Powe v. Sec’y of Navy,
No. 94-1258, 1994 WL 445695, at *2 (4th Cir. 1994)
(“[A] suit seeking a military discharge upgrade is not
for money damages, even though an upgrade would entitle the recipient to payment for leave accrued at the
time of discharge.”) (citation omitted).
App. 51
The Government also contends that Coleman’s
claim for injunctive relief is based on a money-mandating statute, 10 U.S.C. § 1201. However, he seeks correction of his records based upon 10 U.S.C. § 1554a, which
the U.S. Court of Federal Claims has explicitly stated
“is not a money-mandating statute.” Quesada v. United
States, 136 Fed. Cl. 635, 642 (2018). See also Fisher v.
United States, 402 F.3d 1167, 1174–75 (Fed. Cir. 2005)
(citing Sawyer v. United States, 930 F.2d 1577, 1580
(Fed. Cir. 1991)). Therefore, Coleman does not exclusively seek monetary relief that falls within the jurisdiction of the U.S. Court of Federal Claims.
The Court finds that Coleman has satisfied the
first requirement for APA jurisdiction. See Smalls, 471
F.3d at 190 (stating that “the phrase ‘retirement benefits’ connotes a host of benefits to which no monetary
value can be attached,”); Nieves v. McHugh, 111
F. Supp. 3d 667, 674–675 (E.D.N.C. 2015) (stating that
a request for placement on retirement status is request
for equitable relief pursuant to the APA).
b. There is no other adequate remedy in a
court.
The Government contends that Coleman has an
adequate remedy under the Tucker Act and thus jurisdiction lies in the U.S. Court of Federal Claims.
But the Tucker Act only “authorize[s] courts to
award injunctive relief in limited circumstances, when
such relief is necessary to provide an entire remedy
and when the injunction is ‘an incident of and
App. 52
collateral to’ an award of monetary relief.” Randall, 95
F.3d at 46–47 (citing 28 U.S.C. § 1491(a)(2)). Given that
Coleman waived his right to military retirement pay
(Doc. 39-1 at 2), the injunctive relief, if granted, would
not be an “incident of and collateral to” an award of
monetary relief. See 28 U.S.C. § 1491(a)(2) (“[T]he
court may, as an incident of and collateral to any such
judgment, issue orders directing restoration to office or
position, placement in appropriate duty or retirement
status, and correction of applicable records, and such
orders may be issued to any appropriate official of the
United States.”).
The Court acknowledges that a thirty percent disability rating may entitle Coleman to monthly retirement benefits. But there is no guarantee that he will
be entitled to additional monthly payments from the
Government, especially since he waived his right to retirement pay. See Fulbright v. McHugh, 67 F. Supp. 3d
81, 85 (D.D.C. 2014) (“Qualifying for disability retirement, however, is no small task” because “military
regulations establish a complex web of procedures for
obtaining disability benefits after leaving active service.”). It is well-settled that veterans may not receive
both disability compensation and military retirement
pay outside of limited exceptions, 38 U.S.C. § 5304(a),
and any veteran entitled to both must elect which of
the two he receives. See 38 C.F.R. § 3.750(c)(i). In light
of the rules prohibiting the concurrent receipt of VA
disability and military retirement pay, the Court finds
that Coleman is not exclusively seeking monetary relief. See Randall, 95 F.3d at 347 (affirming the district
App. 53
court’s finding that Little Tucker Act did not provide
jurisdiction because the plaintiff ’s “claims were primarily for equitable relief,” such that the retroactive
promotion sought by the plaintiff was not available in
the U.S. Court of Federal Claims because it was “not
incident of, or collateral to, a monetary award.”).
Therefore, he does not have an adequate remedy in the
U.S. Court of Federal Claims.
c. Coleman’s claim is not barred by the
six-year statute of limitations in 28
U.S.C. § 2501.
Section 2501 provides that “[e]very claim of which
the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is
filed within six years after such claim first accrues.”
28 U.S.C. § 2501. The Federal Circuit has held that a
cause of action for military disability benefits accrues
when a service member seeks and is denied disability
benefits from a board competent to grant such benefits
– either a physical disability board if the member is on
active duty or from a board of correction if the member
has been discharged. See Chambers v. United States,
417 F.3d 1218, 1224, 1227 (Fed. Cir. 2005); Huff v.
United States Dep’t of the Army, 508 F. Supp. 2d 459,
464 (D. Md. 2007) (applying the Federal Circuit’s “first
competent board rule”). When a service member fails
to request a hearing board prior to discharge, this
failure has the same effect as a refusal by the service
to provide review, and the service member’s cause of
action accrues at the time of discharge. Real v. United
App. 54
States, 906 F.2d 1557, 1560 (Fed. Cir. 1990). Thus, once
a member’s military disability retirement claim accrues, he must bring the claim within six years from
the date of accrual. 28 U.S.C. § 2501.
Here, an Informal Physical Evaluation Board considered Coleman’s claim for disability benefits in September 2005, prior to his discharge from the Air Force.
See Doc. 8 at 2–3. The board considered the question of
Coleman’s fitness for duty while he was still serving
and determined a ten percent disability rating was
appropriate. See Doc. 8 at 3. See also Miller, 361 F.2d
at 250. Coleman waived his right to a formal physicalevaluation-board hearing and instead agreed with the
board’s findings and recommended disposition. Therefore, under the “date of discharge” rule in Miller and
Real, the statute of limitations accrual date for Coleman’s Tucker Act claim was April 24, 2006—the day he
was discharged.
The Court concludes that the statute of limitations
ran on any claim brought under the Tucker Act in April
2012. But, as discussed supra, Coleman is not bringing
a claim under the Tucker Act here. He is seeking injunctive relief and judicial review of a final agency action. Notably, the Tucker Act “does not itself provide
the substantive cause of action; instead, a plaintiff
must look elsewhere for the source of substantive law
on which to base a Tucker Act suit against the United
States.” Martinez v. United States, 333 F.3d 1295, 1303
(Fed. Cir. 2003) (internal citations omitted). While
Coleman could have filed a Tucker Act claim for money
damages based on retirement pay and still availed
App. 55
himself of permissive board (such as the PDBR) review,
the Court cannot weigh in on his choice of remedy.
Martinez, 333 F.3d at 1304 (noting that the Federal
Circuit has “long held that, in Tucker Act suits, a plaintiff is not required to exhaust a permissive administrative remedy before bringing suit.”). The Court finds
that Coleman’s claim is not barred by the statute of
limitations.
Accordingly, the undersigned respectfully recommends that Defendant’s Motion to Dismiss be denied.
C. Standard of Review – Rule 56
Federal Rule of Civil Procedure 56(a) provides:
A party may move for summary judgment, identifying each claim or defense-or the part of each
claim or defense—on which summary judgment is
sought. The court shall grant summary judgment
if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court
should state on the record the reasons for granting
or denying the motion.
Fed. R. Civ. P. 56(a). “A dispute is genuine if a reasonable jury could return a verdict for the non-moving
party.” Vannoy v. Fed. Rsrv. Bank of Richmond, 827
F.3d 296, 300 (4th Cir. 2016) (quoting Libertarian
Party of Va v. Judd, 718 F.3d 308, 313 (4th Cir. 2013)).
“A fact is material if it might affect the outcome of the
suit under the governing law.” Id.
App. 56
The movant has the “initial responsibility of informing the district court of the basis for its motion,
and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on
file together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The court must view the evidence and any
inferences therefrom in the light most favorable to the
non-moving party. See Tolan v. Cotton, 572 U.S. 650,
657 (2014); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). The court applies “the fundamental principle that at the summary judgment stage,
reasonable inferences should be drawn in favor of the
non-moving party.” Jacobs v. N.C. Admin. Office of the
Courts, 780 F.3d 562, 570 (4th Cir. 2015) (quoting Tolan, 572 U.S. at 660). “Summary judgment cannot be
granted merely because the court believes that the movant will prevail if the action is tried on the merits.” Id.
at 568-69 (quoting 10A Charles Alan Wright & Arthur
R. Miller et al., Federal Practice & Procedure § 2728
(3d ed.1998)). “The court therefore cannot weigh the
evidence or make credibility determinations.” Id. at
569 (citing Mercantile Peninsula Bank v. French (In re
French), 499 F.3d 345, 352 (4th Cir. 2007)). In the end,
the question posed by a summary judgment motion is
whether the evidence “is so one-sided that one party
must prevail as a matter of law.” Anderson, 477 U.S. at
252.
App. 57
D. The PDBR’s decision was not arbitrary
or capricious.
The decision of the PDBR is a final agency action
subject to judicial review under the APA. See 5 U.S.C.
§ 701, et seq.; Chappell v. Wallace, 462 U.S. 296, 303
(1983). A final agency action may be set aside only if
it is “arbitrary, capricious or not based on substantial
evidence.” 5 U.S.C. § 706(2). The reviewing court determines whether an agency action was “arbitrary and
capricious” as a matter of law. See 5 U.S.C. § 706(2)(A);
Chan v. U.S. Citizenship and Immigr. Servs. 141
F. Supp. 3d 461, 464 (W.D.N.C. 2015) (explaining that
the agency resolves “factual issues to arrive at a decision that is supported by the administrative record”
and the district court determines “whether the agency
action is supported by the administrative record and
otherwise consistent with the APA standard of review”) (internal citations and quotation marks omitted).
To comply with the APA, the “agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection
between the facts found and the choice made.’ ” Sierra
Club v. Dep’t of the Interior, 899 F.3d 260, 293 (4th Cir.
2018) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Agency action is arbitrary and capricious when the agency fails
to consider “an important aspect of the problem,” provides an explanation for its decision that contradicts
the evidence before it or “is so implausible that it could
not be ascribed to a difference in view or the product of
App. 58
agency expertise.” Roe v. Dep’t of Def., 947 F.3d 207,
220 (4th Cir. 2020) (quoting State Farm, 463 U.S. at
43).
Review is “highly deferential, with a presumption
in favor of finding the agency action valid.” Ohio Valley
Env’t Coalition v. Aracoma Coal Co., 556 F.3d 177, 192
(4th Cir. 2009) (citation omitted). The court “may not
supply a reasoned basis for the agency’s action that
the agency itself has not given.” See Roe, 947 F.3d at
220 (quoting Bowman Transp., Inc. v. Arkansas-Best
Freight Sys., Inc., 419 U.S. 281, 285–86 (1974)). Where
the agency has examined the relevant data and provided an explanation that includes “a rational connection between the facts found and the choice made,”
deference is due. Ohio Valley, 556 F.3d at 192. The court
does not re-weigh the evidence and must uphold a decision that “was supported by substantial evidence.”
Portner v. McHugh, 395 Fed. App’x. 991, 992 (4th Cir.
2010) (citation omitted). Substantial evidence is “such
relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Platone v. U.S.
Dept. of Labor, 548 F.3d 322, 326 (4th Cir. 2008) (citation omitted).
The court considers the record before the agency
at the time the agency issued its decision and “affidavits not contained in the agency record . . . where ‘there
was such failure to explain administrative action as to
frustrate effective judicial review.’ ” Dow AgroSciences
LLC v. Nat’l Marine Fisheries Serv., 707 F.3d 462, 467–
68 (4th Cir. 2013) (quoting Camp v. Pitts, 411 U.S. 138,
142–43 (1973)). Because judicial review of the agency
App. 59
decision is limited to review of the administrative record, “there can be no genuine issue of material fact in
an APA action[.]” Callaway Golf Co. v. Kappos, 802
F. Supp. 2d 678, 685 (E.D. Va. 2011). Summary judgment is thus the mechanism for determining “as a
matter of law, whether the agency action is supported
by the administrative record and otherwise consistent
with the APA standard of review.” Chan, 141 F. Supp.
3d at 464 (W.D.N.C. 2015) (citation omitted).
Defendant contends that the decision of the PDBR
to deny Coleman’s request for a thirty percent disability rating and medical retirement was not arbitrary
and capricious. Coleman asserts the PDBR was arbitrary and capricious in its decision because it failed to:
(1) consider evidence demonstrating that his PTSD
worsened between the time of his original discharge
and the date he was removed from the TDRL and (2)
order a physical examination pursuant to VASRD
§ 4.129 following his release from the TDRL to determine how his condition had changed from his original
separation date to the time he was released from the
TDRL.
In assessing the accuracy and fairness of disability
ratings, the PDBR is to “[r]eview the PEB record of
findings and the combined disability rating decisions
regarding the specifically military unfitting medical
conditions with respect to the covered individual.”
Doc. 39-2 at 9. The Secretary of the Air Force must determine what information is required for PDBR review,
including but not limited to medical records. Id. at 7.
App. 60
The PDBR is required to consider retroactive application of VASRD § 4.129. 38 C.F.R. § 4.129 provides that:
when a mental disorder that develops in service
as a result of a highly stressful event is severe
enough to bring about the veteran’s release from
active military service, the rating agency shall
assign an evaluation of not less than 50 percent
and schedule an examination within the six month
period following the veteran’s discharge to determine whether a change in evaluation is warranted.
Here, the PDBR properly applied § 4.129. Doc. 1-1
at 2. The Board noted that “neither the military psychiatrists [nor] the VA C&P examiner diagnosed
PTSD” and that “the VA elected not to apply § 4.129 in
its rating decision.” Id. Nonetheless, the PDBR determined there was sufficient evidence to support that “a
highly stressful event severe enough to bring about the
Veteran’s release from active military service did occur,” such that application of § 4.129 was appropriate.
Id. In assigning a ten percent disability rating at the
end of the TDRL period, the Board considered the MEB
psychiatric examination performed two months prior
to separation and the VA Psychiatric compensation
and pension evaluation performed four months after
separation. Id. Both documents “occurred close to separation and [were] the only proximate documents
available for review.” Id.
Coleman contends that the PDBR erred by not
ordering a physical examination following his release
from the TDRL and “improperly reduced his disability
App. 61
rating from the statutorily required 50% TDRL rating
to 30% without conducting such an examination.” Doc.
1 at 13. But the plain language of § 4.129 does not require a physical examination – only an “examination”
before release from the TDRL. See 38 C.F.R. § 4.129;
Petri v. United States, 104 Fed. Cl. 537, 555 (2012).
While not binding authority, the U.S. Court of Federal Claims decision in Petri is instructive here. 104
Fed. Cl. 537 (2012). In Petri, a former Air Force member sought review from the PDBR after he was separated with a disability rating of ten percent due to
PTSD and subsequently rated as fifty percent disabled
due to PTSD by the VA. Id. at 544. The PDBR recommended that Petri’s records be corrected to reflect a
six-month placement on the TDRL followed by separation with a disability rating of ten percent. Id. at 545–
46. Because the PDBR did not actually place him on
the TDRL but instead corrected his records to reflect
TDRL placement, the court rejected plaintiff ’s argument that the PDBR should have ordered a physical
examination in 2010 before correcting his records to
remove him from the TDRL retroactively. Id. at 552,
557. The court held that the PDBR “acted reasonably”
and not “arbitrarily or capriciously” in assigning a permanent disability rating of ten percent “without a
hearing and without a new physical or mental examination in 2010.” Id. at 558–62.
As in Petri, the PDBR was not required to order a
physical examination before Coleman’s release from
the TDRL. The Board examined the evidence available
at the time – the MEB psychiatric examination created
App. 62
two months before Coleman’s separation and the VA
psychiatric compensation and pension evaluation created four months after his separation. Nothing more
was required. The PDBR satisfied § 4.129. As the court
in Petri acknowledged, a 2011 physical examination
would not have reflected Coleman’s state of health six
months after his 2005 separation, the time period pertinent for the 2011 PDBR’s determination of a permanent disability. 104 Fed. Cl. at 558. While the court in
Cook v. United States, 123 Fed. Cl. 277 (2015) declined
to follow Petri, Cook is neither binding nor persuasive
authority. Accordingly, the Court finds that the PDBR
did not act arbitrarily or capriciously in assigning a
permanent disability rating of ten percent without ordering a physical examination before Coleman’s release from the TDRL.
Moreover, Coleman contends the PDBR failed to
consider the timing of the VA’s rating decision or the
“severity of [his] condition at the time of his permanent
disposition from the military.” Doc. 41 at 17. But there
is substantial evidence that the PDBR considered that
decision. Under VASRD § 4.130, a ten percent disability rating is appropriate where there is
occupational and social impairment due to
mild or transient symptoms which decrease
work efficiency and ability to perform occupational tasks only during periods of significant
stress, or symptoms controlled by continuous
medication.
38 C.F.R. § 4.130. A thirty percent disability rating is
appropriate where there is
App. 63
occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment,
mild memory loss (such as forgetting names, directions, recent events).
38 C.F.R. § 4.130.
Here, the VA psychiatric compensation and pension evaluation noted that Coleman enjoyed his job
and was “doing fairly well,” from which the PDBR
could conclude that his work efficiency had not decreased on a day-to-day basis. Doc. 1-1 at 3. His social
functioning also appeared to be largely unaffected by
his symptoms. Id. He was able to go out to eat and
“get out socially,” though he was a “little nervous.” Id.
These subjective descriptions are consistent with “mild
or transient symptoms” and occupational and social
impairment only during periods of significant stress
as the PDBR found. Doc. 44 at 19. While the Board
noted that “social and occupational impairment consistent with a 30% evaluation [ ] could be surmised
from some of the documented symptoms at the time of
the post separation C&P examination,” it recommended ten percent based upon his “generally intact
interpersonal and occupational functioning with treatment.” Doc. 1-1 at 3–4.
App. 64
Although the VA considered the same evidence
and concluded that Coleman merited a thirty percent
disability rating, the PDBR is not required to defer to
the VA’s determination. Doc. 1-1 at 1–2 (“[T]he VA, operating under a different set of laws (Title 38, United
States Code), is empowered to compensate service connected conditions and to periodically re-evaluate said
conditions for the purpose of adjusting the veteran’s
disability rating should the degree of impairment vary
over time.”). The Board noted that its recommendation
was “based on the severity of the condition at the time
of the permanent disposition and not based on possible
future worsening.” Doc. 1-1 at 4. Because the PDBR examined the relevant data and provided an explanation
that demonstrates “a rational connection between the
facts found and the decision made,” deference is due.
Ohio Valley, 556 F.3d at 192. This Court is not “empowered to substitute its judgment for that of the [PDBR],”
which is precisely what Coleman asks the Court to do
here. See id. See also Doc. 41 at 16 (“The PDBR should
have adopted the VA’s 30% disability rating instead of
reducing Mr. Coleman’s rating to 10 percent.”).
Given that review is “highly deferential,” Ohio
Valley, 556 F.3d at 192, the Court defers to the expertise of the PDBR because its decision does not contradict the evidence before it and is not “so implausible
that it could not be ascribed to a difference in view or
the product of agency expertise.” Roe, 947 F.3d at 220.
The Court concludes that taking the evidence in the
light most favorable to Coleman, there are no genuine
issues of material fact. Callaway Golf Co., 802
App. 65
F. Supp. 2d at 685 (explaining that because judicial review of the agency decision is limited to review of the
administrative record, “there can be no genuine issue
of material fact in an APA action”). The PDBR’s decision in assigning a ten percent disability rating is supported by substantial evidence. See Chan, 141 F. Supp.
3d at 464 (applying summary judgment to determine
“as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review”).
Accordingly, the undersigned respectfully recommends that Defendant’s Motion for Summary Judgment be granted.
III.
ORDER
IT IS ORDERED that all further proceedings in
this action, including all discovery, are STAYED pending the District Judge’s ruling on this Memorandum
and Recommendation and Order.
IV.
RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that Defendant’s Motion to Dismiss be DENIED and Defendant’s Motion
for Summary Judgment be GRANTED.
V.
NOTICE OF APPEAL RIGHTS
The parties are hereby advised that pursuant to
28 U.S.C. §636(b)(1)(c), written objections to the
App. 66
proposed findings of fact and conclusions of law and
the recommendation contained in this Memorandum
must be filed within fourteen days after service of
same. Failure to file objections to this Memorandum
with the District Court constitutes a waiver of the
right to de novo review by the District Judge. Diamond
v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005);
Wells v. Shriners Hosp., 109 F.3d 198, 201 (4th Cir.
1997); Snyder v. Ridenour, 889 F.2d 1363, 1365 (4th Cir.
1989). Moreover, failure to file timely objections will
also preclude the parties from raising such objections
on appeal. Thomas v. Arn, 474 U.S. 140, 147 (1985);
Diamond, 416 F.3d at 316; Page v. Lee, 337 F.3d 411,
416 n.3 (4th Cir. 2003); Wells, 109 F.3d at 201; Wright
v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); United
States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk is directed to send copies of this Memorandum and Recommendation to the parties’ counsel
and to the Honorable Robert J. Conrad, Jr.
SO ORDERED AND RECOMMENDED.
Signed: April 16, 2021
/s/ David S. Cayer
David S. Cayer
[SEAL]
United States Magistrate Judge
App. 67
FILED:
September 22, 2023
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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No. 22-1591
(5:17-cv-00096-RJC-DSC)
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BLAIR COLEMAN
Plaintiff - Appellant
v.
FRANK KENDALL, Secretary of the Air Force
Defendant - Appellee
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ORDER
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The petition for rehearing en banc was circulated
to the full court. No judge requested a poll under
Fed. R. App. P. 35. The court denies the petition for
rehearing en banc.
For the Court
/s/ Nwamaka Anowi, Clerk
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