# Appendix — Golding v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2003
- **Citation:** 537 U.S. 1194

## Text

Appendix A

United States Court of Appeals

for the Federal Circuit

No. 01-5104

KENNETH B. GOLDING,
Plaintiff- Appellant,
¥,
UNITED STATES,

Defendant-Appellee.
JUDGMENT
ON APPEAL from the UNITED STATES COURT OF
FEDERAL CLAIMS in CASE NO(S), 95-CV-249.

This CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:
Per Curiam (CLEVENGER, RADER and LINN, Circuit

Judges).
AFFIRMED. See Fed. Cir. R. 36.

la

ENTERED BY ORDER OF THE COURT

/s/

Jan Horbaly, Clerk

DATED October 8, 2002

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THE UNITED STATES COURT
: OF FEDERAL CLAIMS

No. 95-249C
FILED: March 1, 2001
KENNETH B. GOLDING,
Plaintiff,

V.

UNITED STATES,
Defendant.

Military Pay; Motion to Dismiss; Motion For Summary
Judgment; Violation of Navy Medical Directive;
Dismissal from Service Academy; Due Process Violation;
Delegation of Authority; Equal Employment
Opportunity Program; The Rehabilitation Act;
Supplementation of the Administrative Record.

Louis P. Font, Font & Glazer, Brookline, Massachusetts,
attomey of record for the plaintiff.

Paul D. Hoburg and John S. Groat, Commercial Litigation
Branch, Civil Division, Department of Justice, Washington,
D.C., with whom were James M. Kinsella, Deputy Director,
David M. Cohen, Director, and Frank W. Hunger, Assistant
Attorney General, attoineys of record for the defendant.
Lieutenant Colone! Daniel M. Lizzul and Lieutenant Sherry
Sabol, Department of the Navy, of counsel.

OPINION

HORN, J.

This case comes before the court on defendant's
motion to dismiss, or, in the alternative, for summary
judgment and plaintiff's cross-motion for summary
judgment. Plaintiff enrolled as a midshipman at the United
States Naval Academy on July 2, 1985. Academically, he
performed acceptably at the Naval Academy, participated in
the political science honors program, and pursued a number
of extra-curricular activities. In the summer before his junior
year plaintiff developed pneumonia. He was eventually
diagnosed with reactive airways disease, chronic
sinusitis/rhinitis, allergy to grasses, and mild asthma. Over
the course of the next fifteen months after the onset of his
illness, plaintiff was treated with a number of different
medications, but continued to complain that the treatment
was ineffectual On September 26, 1988, plaintiff was
involuntarily hospitalized at the National Naval Medical
Center, Bethesda, MD, with an admission diagnosis of
adjustment disorder and major depression. Plaintiff was
eventually processed for discharge from the Naval Academy
and the United States Navy, based on physical
disqualification. The primary diagnosis was major
depression, single episode, severe without psychotic features,
not existing prior to entry into the Naval Academy. Plaintiff
argues that it was the treatment for his chronic bronchial
problems, particularly the interaction of the various drugs he
was given over time, which caused his depression. Plaintiff
was involuntarily discharged from the United States Naval
Academy, and received an honorable discharge from the
United States Navy effective March 27, 1989.

In the complaint filed in this matter on March 22,

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1995, plaintiff requests back pay and allowances for the
period from March 27, 1989, the date of his honorable
discharge, to the present; that his discharge be voided and
that he be restored to active duty; and that he be granted his
diploma from the Naval Academy. Plaintiff alleges in count
one of the comphint that the Navy violated the United States
Constitution and various statutes and Navy regulations.
Count two alleges violation of 10 U.S.C. § 6961 (1988) and
SECNAV INSTRUCTION 1531.1A, dated March 13, 1989,
which require the approval of the President of the United
States before a midshipman may be discharged from the
Naval Academy and the Naval Service. Count three alleges
violation of 10 U.S.C. § 1201, et seg. (1988), "Retirement or
Separation for Physical Disability," and other applicable
regulations which provide for a formal hearing, with a right to
be represented by counsel, to determine if discharge,
separation, or retirement based on disability is appropriate, or
to what extent a disability would interfere with active military
service, and whether such disability is temporary or
permanent. Count four alleges a violation of the
Rehabilitation Act of 1973, 29 U.S.C. § 794, et seg. (1988),
alleging failure to accommodate plaintiff's disability, thus,
unlawfully ending plaintiffs entitlement to pay and
allowances. Count five alleges defendant violated the
military's equal employment opportunity program, 32 C.F.R.
Part 51 (1988), by discriminating against plaintiff and
discharging him on the basis of his alleged disability, in
violation of law, thereby ending his entitlement to pay and
allowances. Plaintiff alleges in count six that 10 U.S.C. §
1217 (1988), which excludes midshipmen from being
evaluated and compensated under the Navy's physical
disability system described at 10 U.S.C. § 1201, et seq.., is
unconstitutional Defendant filed a motion to dismiss
pursuant to Rules 12(b)(1) and 12 (b4) of the Rules of the
United States Court of Federal Claims (RCFC). In the

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alternative, defendant moved for summary judgment. Plaintiff

has filed a cross motion for summary judgment pursuant to
-RCFC 56.

FINDINGS OF FACT

Plaintiff, Kenneth B. Golding, applied for appointment
to the United States Naval Academy, and, on June 7, 1985,
received an offer of a Presidential appointment, which he
accepted on June 14, 1985. He reported to the Naval
Academy to begin his training on July 2, 1985. While at the
Academy, plaintiff participated in numerous extra-curricular
activities, as well as achieving a 3.03/4.00 overall grade point
average through his third year at the Academy. In addition,
plaintiff was selected for the honors program in political
science at the beginning of his second year. Prior to plaintiffs
entry into the Academy, there were no documented physical
or mental problems. —

In mid-June, 1987, plaintiff began experiencing a
severe sore throat, which progressed to his having trouble
breathing. Plaintiff was at first diagnosed with an upper
respiratory infection, but on June 23, 1987, he was diagnosed
with right middle lobe pneumonitis, as confirmed by chest
x-ray. Plaintiff's pneumonia was considered to be resolved as
of July 22, 1987. From June 23, 1987 through July 22, 1987,
when x-rays showed no further presence of infiltrate in the
lungs, plaintiff was seen a total of ten times by health care
providers. With the exception of abdominal cramps on June
24, 1987, plaintiff's complaints were related to coughing,
congestion, head pain, and tightness in his chest, except for
the last visit on July 22, 1987, which was to follow up on
pain in his neck and back.

Over the course of thirteen months, from August 15,

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1987 to September 22, 1988, plaintiff was seen close to sixty
times on an outpatient basis primarily by doctors but also by
corpsmen and physician assistants for various complaints
relating to symptoms which did not abate after plaintiffs
pneumonia was considered to have been resolved, until he
was involuntarily admitted as an inpatient. Upon his return to
the Academy in August, 1987, plaintiff was excused from
exercise for one month. On September 8, 1987, plaintiff was
referred by Commander (Dr.) Sanders, at the Bancroft Hall
Clinic, for an ear, nose and throat (ENT) consultation,
because plaintiff was "no better, nasal drip [and] pain in
head." On September 13, 1987, Lieutenant Commander
(Dr.) Curtin examined plaintiff. He found plaintiff's smuses
were blocked, there was slight redness in his throat, and he
heard rales' in plaintiff's ings. He noted that plaintiff was
"not satisfied [with] medical care." Dr. Curtin followed up
with plaintiff the next day. Dr. Curtin saw plaintiff again on
September 22, 1987. Dr. Curtin heard coarse respiratory
sounds again.

Plaintiff had been seen twice in September, 1987, for
physical therapy to establish a reconditioning program to get
him back into shape for running. The physical therapy
program was primarily for plaintiff to perform various
activities, as tolerated. On September 28, 1987, plaintiff was
discontinued from physical therapy due to lack of attendance.
Plaintiff contested this in his medical records, stating he
discontinued therapy due to a "lack of sufficient program to
follow,"and that he would develop his"own program."

On October 6, 1987, plaintiff was seen by Captain

1 Rales - abnormal respiratory sounds. Dorland's Illustrated
Medical Dictionary 1408 (28th ed. 1994).

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(Dr.) D.H. Thompson, a Navy otolaryngologist’ at Bethesda
Naval Hospital's ear, nose, and throat (ENT) clinic. His
examination of plaintiff showed his ears, nose, throat, and
sinuses all within normal limits. Dr. Thompson ruled out
sinus disease. Chest x-rays raised the question of whether
plaintiff might have mild cardiomegaly.’ Plaintiff was referred
to a cardiologist, who ruled out cardiomegaly, but who
suggested that plaintiffs problems appeared to be consistent
with a broncho-pulmonary problem:

Also on October 6, 1987, plaintiff was seen by
Captain (Dr.) Robert Sarlin, a Navy pulmonary/internist. This
was the first of many outpatient visits with Dr. Sarlin from
October 1987 through August 1988. Dr. Sarlin tested
plaintiff's pulmonary function before and after use of
bronciodilators,* and concluded that plaintiff showed "no

2 Otolaryngology - "that branch of medicine concerned with
medica! and surgical treatment of the head and neck, including the ears,
nose, and throat." Dorland's Illustrated Medical Dictionary 1205 (28th
ed. 1994).

3 Cardiomegaly - enlargement of the heart. Dorland's
Illustrated Medical Dictionary 268, 802 (28th ed. 1994).

4 Bronchodilator - expanding the air passages of the lungs.
Dorland's Illustrated Medical Dictionary 231 (28th ed. 1994).

5 Predisone is categorized as a glucocorticoid. A potential
adverse reaction to glucocorticoids is depression. It does not appear,
however, that plaintiff was given Prednisone for any period other than
the prescribed ten-day course.

6 The Physician's Drug Handbook, lists, e.g., drowsiness as
one of the potential adverse reactions to Anaprox, but depression is not
listed. The 1989 Physician's Drug Handbook 677 (Springhouse Corp.
1989) [hereafter The 1989 Physician's Drug Handbook]. Extracts
from The 1989 Physician's Drug Handbook were submitted by the

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significant response to inhaled bronchodilator," and that he
probably had "post infectious obstructive airways disease,"
and possibly reactive airways disease (RAD). He prescribed a
trial short course of Prednisone for ten days.°

On October 9, 1987, Dr. Curtin reviewed Dr. Sarlin's
report and added Anaprox’ to plaintiff's medications, which
then consisted of Proventil, Humibid, and Prednisone.’ On
October 16, 1987, plaintiff saw Dr. Sarlin again. Dr. Sarlin
noted plaintiff had mild obstructive airways disease, with a
complaint of chronic post nasal drip, and that he had shown
"minimal improvement except cough improved” from the
course of Prednisone.

Dr. Thompson (ENT) saw plaintiff again on October
30, 1987. Plaintiff's complaints were noted as "1) Cannot
breathe on [right] side in area of oropharynx but can breathe
ok in Left Side in oropharynx. This [symptom] all of the
time. 2) Headaches all around Head [for] 3-4 weeks
[unintelligible] Severe. .. .". Dr. Thompson noted plaintiff's
previous ENT exam of October 16, 1987, was within normal

parties with their joint stipulations of fact.

7 Predisane was discussed above. The Physician's Drug
Handbook lists, e.g., drowsiness as one of the potential adverse reactions
to both Proventil and Humibid, but depression is not listed for either.

The 1989 Physician's Drug Handbook 24, 465.

9a

limits, and that a sinus x-ray had shown nothing. He
performed another ENT exam, and noted the findings were
again within normal limits.

On November 13, 1987, plaintiff had a follow-up
appointment with Dr. Curtin. Dr. Curtin's assessment was
that plaintiff had post nasal drip and reactive airways disease.
He ordered two bacteriology examinations and referred
plaintiff to the allergy clinic. The bacteriology results showed
plaintiff's sputum contained bacteria.

On November 23, 1987, Commander (Dr.) Rosenblatt
of Bethesda Naval Hospital tested plaintiff for allergies. Dr.
Rosenblatt noted the plaintiff had a history of reactive airways
disease. Plaintiffs allergy testing showed him to be allergic to
several grasses and a mold. Dr. Rosenblatt noted, however,
that there did not appear to be an allergic component to
plaintiff's problems. Dr. Rosenbiatt's findings were reviewed
by Commander (Dr.) David Goodman, the head of the
Allergy-Clinical Immunology Division at Bethesda Naval
Hospital. Dr. Goodman reviewed the plaintiff's chart and
x-rays, with plaintiff, on December 4, 1987, including the
recent ENT and pulmonary assessments by Drs. Thompson
and Sarlin. He stated that he concurred with their
evaluations, diagnoses, and treatment plans. He added that
the only firther treatment suggestion he could add would be
nasal saline irrigation.

On November 27 and December 3, 1987, plaintiff
made his third and fourth visits to Captain Sarlin. The
November 1987 visit showed plaintiff still with a chronic
cough which increased especially after exercise, and mild
sputum production after exercise. Plaintiff was again given
pulmonary function tests, and Dr. Sarlin reported his
condition as "Obstructive Airways Disease - Rule Out

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Reactive Airways Disease with methacholine challenge

[test]." On December 3, 1987, plaintiff was given the
methacholine challenge, and this test was positive for reactive -
airways disease. A "sinus series" was negative. Dr. Sarlin's
diagnosis was "1. Reactive Airways Disease, 2.
sinusitis/rhinitis, chronic." Dr. Sarlin prescribed the
medications Theo-Dur, Ventolin, and Intal.*

On December 23, 1987, while plaintiff was at home on
holiday break from the Naval Academy, he went to the
emergency room at Bethesda Naval Hospital His chief
complaints were listed as reactive airways disease and a sore
throat. The examining physician noted a sore throat, "chroazic
mild upper respiratory illness with congestion, minimal nasal
discharge, non-productive cough, undocumented fever and
chills." The doctor ordered a series of tests, to inchide a test
to determine the theophylline level in the blood. The result
was 6.1 mcg/ml. A therapeutic range for theophylline is
10-20 mcg/ml. The doctor increased plaintiff's Theo-Dur
dosage. The doctor's diagnosis was bronchitis. Plaintiff took
theophylline from December 3, 1987, to October 15, 1988.
Plaintiff's theophylline level was checked on December 23,
1987, as noted, and on September 30, 1988.

Plaintiff saw Dr. Sarlin on December 29, 1987 for the
fifth time. Plaintiff complained he was not exercising, and felt
"down," and "under stress." Dr. Sarlin had plaintiff undergo
an EKG, which showed a frequent abnormal beat. Dr. Sarlin

8 The Physician's Drug Handbook lists, e.g., dizziness, as one
of the potential adverse reactions for both Ventolin or Intal, but does not
list depression for either. Depression is listed as one of the potential
adverse reactions to Theo-Dur. The 1989 Physician's Drug Handbook
24, 264-65, 931.

lla

saw plaintiff again on January 14, 1988, for the sixth time.
The doctor's evaluation remained mild asthma and chronic
rhinitis. Dr. Sarlin recommended another ENT evaluation to
Tule out a mechanical obstruction. That same day, plaintiff
again saw Dr. Thompson at the Bethesda Naval Hospital
ENT clinic, who noted this was a follow-up visit, and that no
pathology was found at the previous visit. The doctor's notes
again show a normal examination. After these examinations,
plaintiff was maintained on Theo Dur, Proventil, Vancenase,
and Intal.°

Ten days later, on January 24, 1988, plaintiff was seen
for evening sick call, with a notation that he was having
trouble breathing, spasms, and cramps. Dr. Sanders examined
plaintiff, who stated that the pain was "located in the back of
his lungs." Dr. Sanders found that plaintiff's hings were clear,
and that plaintiff had "acute thoracic spasm.” Plaintiff was
instructed to return to the clinic, and did so on January 29,
1988. Dr. Sanders noted plaintiff was having problems
getting his breath, was constantly clearing his throat, and
exhibited nasal congestion. Dr. Sanders observed that
plaintiff's hings and airways were clear, and his throat was
"OK." Dr. Sanders noted chronic rhinitis, and wrote "consider
psychology assistance.”

On February 1, 1988, Dr. Sanders requested a
psychology consultation for plaintiff. He stated: "[Plaintiff]
[with] upper respiratory problems for some time. I feel he has
a significant depression because of it which compounds his
symptoms. Medically some reactive airway disease [and]

9 The Physician's Drug Handbook lists, ¢.g., hoarseness as one

of the potential adverse reactions to Vancenase, but depression is not

listed. The 1989 Physician's Drug Handbook 111. The other
prescriptions were discussed above.

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rhinitis." On February 2 and 5, 1988, plaintiff saw Lieutenant
Barbara Dobson, a clinical psychologist at the Midshipmen
Counseling Center. Plaintiff described the progression of
symptoms from July 1987. Her report indicates plaintiff was
"generally dissatisfied with [the] lack of physical findings
other than diagnosis of ‘mild obstructive airways." Plaintiff
complained of continually being "knocked down" so that he
could not reach his goals. In addition, piaintiff complained
that "1) running exacerbates condition; 2) having a hard time
studying, [decreased] concentration, interruptions because he
has to spit mucus (6-10 [times][per hour]); 3) feels alone, not
supported, angry at medical; 4) increased [headaches] and
sore throats; 5) feels tired; [and] 6) frustrated at waking up
‘miserable’ every day." Plaintiff expressed concern about
being able to "handle it here, being sick." Lt. Dobson's
impression was that plaintiff had an "adjustment disorder with
mixed emotional features."

Dr. Sanders saw phintiff again on February 22, 1988,
because of plaintiff's complaint of "[left] sided chest pain,
sharp shooting, entire left chest, front and back, extending to
left upper abdomen .. .." Dr. Sanders prescribed Motrin and
application of heat to the chest. Three days later, on February
25, 1988, plaintiff went to the evening sick call at the Naval
Academy. He complained that he could not sleep, was feeling
"stressed out," and was shaking. Plaintiff was kept overnight,
with a referral for a psychology consultation in the morning.
Dr. Sanders saw plaintiff the next morning, and wrote that
plaintiff was "acutely agitated, depressed, has not slept for
several days." He prescribed Elavil,'® an antidepressant, and
stated he would continue to work with Lieutenant Dobson.

10 The Physician's Drug Handbook lists, e.g., drowsiness as

one of the potential adverse reactions to Elavil, but depression is not

listed. The 1989 Physician's Drug Handbook 55.
13a

On March 2, 1988, Dr. Sanders changed plaintiffs
antidepressant medication to Norpramin."'

Plaintiff told Dr. Sanders he wanted a second opinion
from a civilian doctor regarding his respiratory condition.
During spring break, on March 8, 1988, plaintiff consulted
with Dr. Harold Silver, an internist and board certified
pulmonologist. Dr. Silver performed tests and physically
examined plaintiff, as well as interviewing him about his
medical history. Dr. Silver found "significant small airways
disease, "and requested that plaintiff be excused" from most
vigorous forms of physical activity until this is resolved." Dr.
Silver's diagnostic impression was "chronic bronchitis post
infection” that was "aggravated by the fact that [plaintiff] had
some element of allergy in [his] family history and [plaintiffs]
IGE level indicated [an] allergy at present may contribute."
Dr. Silver also stated plaintiff had difficulty because
"[plaintiff's] opportunity to convalesce after this has been
minimized, and [plaintiff has] tried to recover and at the same
time do physical and intellectual tasks full blast. As a result of
this, [plaintiff has] suffered anxiety and depression." Dr.
Silver thought that "while antidepressant medication may
seem superficially good, . . .a more understanding attitude in
respect to your illness and examination by a psychiatrist and a
discussion with somebody about your problem might be a
better way to handle it."

On March 14, 1988, plaintiff saw Dr. Sarlin for the
seventh time. In response to Dr. Silver's evaluation, Dr.
Sarlin wrote: "Excuse Midshipman Golding from running or

11 The Physician's Drug Handbook lists, e.g., drowsiness as
one of the potential adverse reactions to Norpramin, but depression is

not listed. The 1989 Physician's Drug Handbook 295.

14a

any strenuous exercise, [illegible] airways disease with
apparent exercise induced component. He is under evaluation
in Pulmonary Clinic." On April 8, 1988, Dr. Sanders saw
plaintiff again, and noted he still had "pain in ‘lungs’ with
coughing or sneezing, minimal [shortness of breath] with
climbing stairs, had numbness of entire body one evening."
Dr. Sanders noted the medicines plaintiff was taking - Theo
Dur, Proventil, and Norpramin. Dr. Sanders observed that
plaintiffs lungs were clear, and wrote that plaintiff had "chest
wall pain." He prescribed Anaprox for ten days. On May 9,
1988, plaintiffs blood was drawn to determine therapeutic
levels for Norpramin.

Plaintiff was referred to outpatient psychiatry at
Bethesda Naval Hospital on May 17, 1988. He saw
Commander (Dr.) Roger Pentzien, a psychiatrist and head of
the outpatient psychiatry section at the hospital. Dr. Pentzien
discussed plaintiffs situation at length with Lieutenant
Dobson at the Academy prior to meeting with plaintiff. Dr.
Pentzien noted plaintiffs history as "consistent with a
somewhat ATYPICAL DEPRESSION marked by a decided
tendency toward somatization,” though it was not entirely
unclear that he might indeed suffer from some mild upper
airway disease that was worsened in the throes of stress."
(emphasis in original). He noted plaintiff "had generally
benefitted from a combination of bronchodilators and
antidepressant medication" and that "he was scheduled for a
gradual decrease of the antidepressant medication to assess
[plaintiffs] level of functioning free from the drug; this was of
particular import as [plaintiff] was preparing for a summer
cruise in Long Beach, CA." Plaintiff was noted as functioning

12 Somatization - "in psychiatry, the conversion of mental
experiences or states into bodily symptoms." Dorland's Illustrated

Medical Dictionary 1544 (28th ed. 1994).
15a

in the "above average to superior level of intelligence." Dr.
Pentzien noted plaintiff did have "some continuation of mild
to moderate posterior pharyngeal discomfort," and there was
"no indication of delusional content to his complaint." Dr.
Pentzien's conclusion, after three meetings with plaintiff and a
gradual downward titration of his medication, was that
plaintiff suffered from an "atypical depressive disorder
treated, resolving. Psychological factors affecting physical
disorder, mild upper airway disease NCD [not considered
disabling], treatment in progress." Dr. Pentzien concluded
that plaintiff was to complete the discontinuation of his
antidepressant medication, and that he would be followed
closely by Lieutenant Dobson on his return to the Academy.
Dr. Pentzien's report was dated June 7, 1988.

On June 13, 1988, while at Long Beach, California,
for his summer cruise, plaintiff reported to the ship's clinic and
was examined by acorpsman there. The corpsman noted
plaintiff's symptoms were "coughing up mucous (green and
yellow and white), congestion, runny nose, dizziness, pain in
lungs upon inspiration and recurrent sore throat for
approximately five to six days." The corpsman heard rales in
plaintiffs lungs. The corpsman had plaintiff transported to the
Naval Clinic at Long Beach for further evaluation. There, a
physician's assistant also heard mild rales in plaintiffs lungs.
The physician's assistant ordered a chest x-ray. Plaintiff was
diagnosed with bronchitis. On June 30, 1988, plaintiff was
seen by Dr. J.S. Vasser, at the Naval Medical Clinic, San
Diego, California. Plaintiff complained of an "occasional
sharp pain over his right shoulder which can be brought on by
- breathing through the nose or sneezing." Dr. Vasser noted
plaintiffs lungs were clear, and he assessed plaintiff as having
musculoskeletal thorax pain with an upper respiratory
infection. He prescribed Motrin and Entex L.A. for ten days
each. On August 9, 1988, plaintiff saw Dr. Sarlin for the

l6a

eighth time. Plaintiff still complained of "frequent bilateral
chest pain,” "chest tightness, aggravated by ‘air pollution,"
"exercise induced cough,” and wheezing with shortness of
breath. Dr. Sarlin's assessment was that plaintiff had mild
reactive airways disease aggravated by exercise. He
continued plaintiff's medications, and prescribed Intal, to be
added to the regimen of Theo-Dur and Proventil. On August
19, 1988, plaintiff saw Dr. Sarlin again. Plaintiff still
complained of persistent sinus and nasal congestion, exercise
tightness, cough, and a nocturnal cough. Dr. Sarlin observed
plaintiffs lungs were clear, with no wheezing. His assessment
was that plaintiff suffered from mild asthma with primarily
nasal rhinitis symptoms and mild exertional chest tightness.
Dr. Sarlin continued the Theo-Dur and Proventil
prescriptions, prescribed Intal again, and added Vancenase,
Humibid,”’ and Ventolin. |

On August 25, 1988, plaintiff was seen by Dr.
Nowicki at the Bancroft Ambulatory Care clinic at the
Academy. Plaintiff was seeking a medical excuse from
exercise. He informed Dr. Nowicki that he was having
coughing and tightness when running. Dr. Nowicki examined
plaintiff, finding his lungs clear. Dr. Nowicki provided
plaintiff a medical excuse for two weeks. Plaintiff saw Dr.
Nowicki again on September 22, 1988. Plaintiff asserted that
he was still having difficulties with breathing and sleeping,
stating that he "awakes and worries." Dr. Nowicki noted
plaintiff was being followed by the Counseling Center. Dr.
Nowicki gave plaintiff a 30-day medical excuse from

13 The Physician's Drug Handbook lists, e.g., drowsiness as

one of the potential adverse reactions to Humibid, but depression is not

listed. The 1989 Physician's Drug Handbook 465.
17a

exercise, and prescribed Restoril.'*

On September 26, 1988, Lieutenant Dobson, at the
Counseling Center, referred plaintiff to Dr. Pentzien at the
outpatient psychiatric clinic at Bethesda Naval Hospital. Dr.
Pentzien examined plaintiff, and believed he needed to be
involuntarily admitted for mpatient treatment. Plaintiff was
hospitalized on September 26, 1988, and remained an
inpatient until discharged on December 5, 1988. Plaintiff's
admission request form gives plaintiff's diagnosis as
"adjustment [disorder], Major Depression." At the time of
plaintiff's admission he was taking Ventolm, Intal, Vancenase,
Humibid, Theo Dur, Proventil, and Restoril. The
prescriptions for the latter three were continued from the date
of his admission; the other medications were stopped, without
tapering, at admission.

On the day of admission, September 26, 1988,
plaintiff's initial attending psychiatrist, Lieutenant Commander
Anita Clayton, interviewed plamntiff. Her admission note
States:

[P]atient is a 20 [year old][Academy
Midshipman/Active Duty/Navy] admitted
[with] depression. [Symptoms] apparently
began [with] somatic complaints | 4 years
ago [primarily] involving
pulmonary[symptoms] (infection, cough,
asthma) and cardiac complaints (palpitations,
chest pain) without identified organic

14 The Physician's Drug Handbook lists depression as one of
the possible adverse reactions to Restoril. The 1989 Physician's Drug

Handbook 915.
18a

etiology.'* [Patient] was felt to be depressed
and in Feb 1988 begun on Elavil, [changed] in
March 1988 to Norpramine 150 mg [per
evening] with measured therapeutic levels of
100. He remained on Norpramine until June
1988 with gradual taper to [discontinuance].
During this [treatment], [patient] continued to
[complain of] somatic [symptoms]. Since
June his depression has [increased] [with]
poor sleep (initial [and] terminal insomnia
[and] restlessness), [decreased] energy,
feelings of worthlessness [and] social isolation.

* * &

[Plaintiff] is neatly dressed in uniform
appearing his stated age [20 years old]. He is
very bradykinetic'* [with] slow movements
[and] turning his body as a unit. No abnormal
movements or tremors noted. Speech [with]
prolonged latency, soft in tone [and] volume
[with] slow rate. Mood "worried," "in pain."
Affect: depressed - appeared near tears
throughout the interview. . . . Judgment fair,
Insight: poor. (Emphasis in original.)

15 Organic - pertaining to or arising from the organs.
Dorland's Illustrated Medical Dictionary 1189 (28th ed. 1994). Etiology

- "the causes or origin of a disease or disorder." Id. at 585.

16 Bradykinetic - characterized by slow movement. Dorland's
Illustrated Medical Dictionary 223 (28th ed. 1994).

19a

Dr. Clayton's impression was "atypical depression
[with] somatic complaints as depressive equivalent [with]
depressed mood, sleep disturbance, [and] feelings of
worthlessness." Dr. Clayton noted only partial response to
Norpramin when plaintiff had been prescribed this medication
earlier in the year, and she recommended consideration of
Prozac, nortriptyline, or lithium carbonate as antidepressants

Lieutenant Beth Grossman, a psychology intern,'’ was
assigned as plaintiff's primary therapist. On September 26,
1988, Lieutenant Grossman wrote an intake note regarding
plaintiff, which was reviewed by Lieutenant Commander (Dr.)
Schraml, a psychiatry resident. In the report Lieutenant
Grossman states: "The patient's difficulties began
approximately one and a half years ago with somatic
complaints including reactive airway disorder, chronic rhinitis,
bronchitis, palpitations and chest pain. All symptoms were
without identified organic etiology.” After noting that
plaintiff had been placed on antidepressants earlier in the year,
she stated, "he remained on norpramine until June, 1988 with
a gradual taper to discharge. During this time, the patient
continued to complain of somatic symptoms. Since June
[1988] his depression has increased and is marked by
difficulty falling asleep, decreased energy, feelings of
worthlessness and social isolation."

Lieutenant Commander (Dr.) Clayton, plaintiffs initial
attending psychiatrist, reviewed the record on September 29
and 30; October 5, and 7; November 23 and 25, 1988, and
concurred with the management of plaintiffs case. Lieutenant
Commander (Dr.) Hoyle, plaintiffs attending psychiatrist,
annotated the inpatient record as having either seen plaintiff

17 Lieutenant Grossman received her Ph.D. degree after
submission of her dissertation in 1990.

20a

or concurred in the management of the case, or both, on
numerous occasions between October 2 and December 8,
1988, during plaintiffs hospitalization. Lieutenant
Commander (Dr.) Schraml, a psychiatric resident, made notes
regarding review of the chart, treatment plaintiff was
receiving or his own interaction with plaintiff or with other
staff regarding plaintiff's case, or concurrence in entries by
other staff, on numerous occasions between September 27
and November 16, 1988. Notes also were made by other
psychiatric residents and attending psychologists reviewed the
notes from psychology interns and added their own comments
to the record while plaintiff was hospitalized.

Plaintiff was started on nortriptyline, '* an
antidepressant, on September 27, 1988. Dr. Schraml's note
states, with regard to use of nortriptyline, the indications,
potential side effects, and alternative therapies were discussed
with plaintiff.'" On September 30, 1988, plaintiff was
experiencing musculoskeletal pain to the point that he was
requesting narcotics for the pain. Plaintiffs subjective pain
complaints were that the pain would get "intense" and
"unbearable." In another notation in plaintiffs medical
record, plaintiff gave the following description of his pain:
"The pain from my reactive airways is just so intense that it is
hard for me to talk and concentrate as I normally do. I've

18 The Physician’s Drug Handbook lists, e.g., drowsiness as
one of the potential adverse reactions to nortriptyline, but depression is

not listed. The 1989 Physician’s Drug Handbook 701.

19 Over the course of plaintiff's hospitalization, plaintiff
complained several times that the medications he was being given,
primarily the antidepressants, were not working. Plaintiff also felt that
being confined as an inpatient was not helping him or his symptoms.

He continued to maintain that his problems were strictly respiratory, and
that his treatment was not appropriate to address those symptoms.

2la

tried using concentration techniques to decrease the pain but
they have not worked that well. I'm not sure if some of the
pain isn't psychosomatic but I know there is a real physical
problem." "People think I'm talking slow because I'm
depressed but I'm concentrating on the pain in my airways."
Plaintiff was given Tylenol for the pain. Medical personnel
believed plaintiffs focus on medical causes of his
hospitalization reflected poor insight into his actual illness,
and that as he confronted issues contributing to his
depression, his somatic complaints might lessen.

Plaintiff's theophylline (Theo Dur) level was tested on
September 30, 1988. At about the same time that plaintiff
reported unbearable pain in his chest (September 30, 1988),
plaintiff's respiratory medications were being decreased.
Ventolin, Vancenase, Intal, and Humibid had all been
stopped, and plaintiffs dosage of Proventil was reduced to
"as needed."

Plamntiff also talked to Dr. Schraml on October 3,
1988, and described symptoms which were attributable to the
side effects of nortriptyline. Dr. Schraml explained this to
plaintiff, and that they would be monitoring the blood level of
nortriptyline to monitor plaintiff's response to it. Plaintiffs
blood was drawn on October 5, 1988, five days after starting
nortriptyline. On October 11, 1988, the results showed
plaintiffs nortriptyline level was 91 ng/ml, within the
therapeutic range of 50-150 ng/ml.

Plaintiff was seen by pulmonary specialists during his
hospitalization, including Dr. Sarlin. On October 6, 1988,
plaintiff was seen by Lieutenant Commander (Dr.) Ashburn, a
pulmonologist. Dr. Ashburn recommended increasing
plaintiff's theophylline (Theo Dur) dosage. The next day, Dr.
Clayton reviewed the chart and wrote that she did not agree

22a

with an increase in theophylline dosage. She stated she would
"[discontinue] for medical indications and reinforcement of
somatic complaints." Later that evening, Dr. Schraml wrote,

Discussed [the] pulmonologist's
recommendation to [increase] Theophylline.
In light of [patient's] relatively mild pulmonary
problems and apparent temporal association
between his current [symptoms] and anxiety
(with a clear hung exam to auscultation) [plus]
psychiatric [symptoms] sometimes associated
[with] theophylline [plus] the possibility of -
reinforcing [patient's] somatic symptomology
related to his psychiatric condition, will
maintain current [prescription] regimen until
[patient] can be evaluated by Dr. Sarlin, the
pulmonologist who has been following
[Midshipman] Golding. Dr. Sarlin will see the
[patient] on 11 Oct 88.

On October 9, 1988, Dr. Schram noted plaintiff could
not "discern between negative thoughts involving 'no goals'
and worry that he is not going to get better, and an actual
voice in his head telling him these negative things. He reports
concern that he may actually be having auditory
hallucinations. He experiences these thoughts or voices when
he is alone . . . and has noted these [for approximately] one
week. He has no prior [history] of auditory hallucinations."
On October 10, 1988, plaintiff told Lieutenant (Dr.) McNeil
that "he frequently experiences negative thoughts about
himself but denied hearing voices." Lieutenant Grossman,
plaintiffs therapist, noted on October 11, 1988 that "{patient]
discussed feelings of disappointment in himself for ‘failing’ at
Navai Academy."

23a

On October 13, 1988, Dr. Ashburn wrote that
"[patient's] home team would like to [discontinue] his
Theophylline compound, as his physicians seem to think it
may be contributing to his [symptoms] complex. I have no
objection to this." He also wrote, "the lack of any
documented wheezing makes me think his dyspnea” is, at
times, a manifestation of anxiety, and not [secondary] to
reactive airway [disease]." Plaintiff's theophylline was
discontinued on October 15, 1988.

On October 13, 1988, plaintiff's medical records
reflect that he was informed of the decision to initiate
discharge action. Plaintiff stated he would like to take time
off and then return to the Naval Academy. Plaintiff was
adamant that he wanted to return to the Academy, stating he
enjoyed the feeling of fraternity. Lieutenant Grossman noted
that part of the plan in plaintiff's case was a Medical Board.
On October 14, 1988, Dr. Hoyle noted that a Medical Board
was "in process."

On October 14, 1988, the decision was made by Dr.
Schram to take plaintiff off Restoril, and place him on
Ativan.”' Plaintiff was manifesting anxiety. Dr. Schraml
wrote that, "while Nortriptyline may exacerbate
[symptoms)/signs of anxiety, doubt it is etiological in that
[symptoms}/signs clearly existed at time of admission (i.e.
before beginning [antidepressants]. Will begin Ativan - 1 mg
[three times per day] with plan for taper and [discontinue]

20 Dyspnea - “difficult or labored breathing." Dorland's
Illustrated Medical Dictionary 518 (28th ed. 1994).

21 As with Restoril, The Physician's Drug Handbook lists
depression as one of the possible adverse reactions to Ativan. The 1989
Physician's Drug Handbook 566.

24a

once significant clinical response to [antidepressants] is
realized (or to other antidepressant therapy).". When
plaintiff's prescription of Restoril was stopped, Ativan was
started. Plaintiff was started on Ativan on October 15, 1988,
and maintained on Ativan through November 20, 1988.

Plaintiff was referred for psychological testing on
September 30, 1988, and was tested on October 4, 1988. In
a report dated October 17, 1988, Lieutenant Bryce Lefever, a
psychology intern, submitted results of the testing, which
were approved by Lieutenant Commander Wally Campbell, a
clinical psychologist. The conclusion of the report was that
plaintiff was suffering from a "severe, incapacitating obsessive
personality style which severely inhibits decision making,
taking action, and finishing tasks." As part of the clinical
interview, plaintiff stated that "his bronchi" are particularly
reactive to jogging and other exercise. Plaintiff believed that,
because of this, he would not be able to work out enough to
pass the physical fitness running test, and, therefore, would
not reach his goal of graduating from the Academy and
becoming a Naval officer. Plaintiff reported that, since June
[of 1988, when he was taken off antidepressants prior to his
summer cruise] his depression has increased while his appetite
and sleep have decreased. He also reported a decrease in
concentration and extreme difficulty making decisions.
Plaintiff was given a clinical interview, mental status
examination, the Rorschach ink blot test, the Minnesota
Multiphasic Personality Inventory (MMPI), the Rotter
Sentence Completion test, and the Beck Depression
Inventory.

The testing indicated plaintiff's judgment was
considered fair, his insight poor, and that plaintiff was
experiencing a degree of stress beyond his ability to cope. It
took him over an hour to complete two questionnaires others

25a

normally completed in twenty mimtes. He never completed
the Rotter Sentence Completion form. Clinical observation
included plaintiffs "thinking/obsessing about things'24 hours
per day.” His self-appraisal was, "I used to be pretty goal
oriented, independent, and have a high belief in myself. But
when I developed these airways, my confide::ce level
dropped, my ability to achieve my goals dropped.” The
MMPI results indicated a tendency to "somaticize
psychological conflict and stress and to consistently and
rigidly misapprehend the source of his psychological distress
as physical in origin.” Plaintiff's self-scored Beck Depression
Inventory indicated that he was severely depressed. The
recommendations at the conclusion of the report, included:
"3. Although this patient is not currently suicidal, and has no
significant history of suicidal thoughts or behavior, due to the
severity of his depression and to facing the possible loss of his
career, suicidal threats, gestures, or attempts could possibly
emerge.” and "4. This patient's personality disorder is so
severe that it is disabling. Consider that a career as a Naval
Officer might not be best for an individual who has extreme
problems with indecisiveness, anxiety and depression."

Dr. Sarlin's note from October 19, 1988, is extensive.
Dr. Sarlin was asked to comment on plaintiff's pulmonary
diagnosis and current status. He stated:

Ken [Golding] is well known to me
with a complicated mix of multiple somatic
complaints evolving over the past year to year
[and a half]. External evaluation by myself
and other consultants inchiding allergy, ENT
[and] cardiology have failed to identify any
single disease process that would explain all of
his [symptoms]. His workup did demonstrate
a component of obstructive airways disease on

26a

pulmonary function testing. His degree of
obstruction is felt to be mild [and] primarily
involves the small airways. A methacholine
challenge test was performed on 3 Dec. 87
and considered positive consistent [with]
hyperactive airways disease (asthma).
However, his disease appears to be mild
[without] severe exacerbations or frequent
episodes of acute bronchospasm (no audible
wheezes have been documented on repeated
exams). He has been treated [with] a variety
of antiallergic [and] bronchodilator
medications including a short course of
steroids [with] minimal response. In other
words, his [symptoms] continued despite
optimal medical therapy for his reactive
airways disease. Currently, his disease is
"quiescent" [and] largely subclinical [and]
should respond well to inhaled bronchodilators
[and] cromolyn before exercise. His major
somatic complaints including vague chest
pains, mucus production [and] inability to
clear his upper airway have no clinical basis
[and] are largely somatic [and] functional in
nature. His inability to run the mile cannot be
explained by his reactive airways disease alone
- since he rarely demonstrates active
bronchospasm.

Final Impression:

1) Ken [Golding] has established
hyperactive airways disease (asthma) which is

27a

largely subclinical” [and] should not be
significantly limiting at this time.

2) His other major somatic complaints
are functional [and] without sound clinical
basis (chest pain, excessive mucus, [and] nasal
congestion)

3) His airways disease problem is
definitely a secondary problem which may
have been aggravated by his underlymg
depression [and] acute situational reaction to
chronic stress.

[Recommend]:

1) [Discontinue] theophylline since it
probably has minimal effect on his [symptoms]
[and] may be potentially toxic.

2) Control his RAD [Reactive
Airways Disease] [with] inhaled
bronchodilators i.e. Albuterol ... [and]
Cromolyn ... before exercise. [Emphasis in
original. |

On October 28, 1988, Dr. Hoyle noted that plaintiff

"still [complains of] depression, physical complaints. Has an
unrealistic plan for time off from USNA, eating his own
vegetables, and exercise and use relaxation. Consxeration

22 Subclinical - without clinical manifestation; not detectable

by clinical examination or laboratary tests. Dorland's Illustrated
Medical Dictionary 1594 (28th ed. 1994).

28a

for change of medication or augmentation of current
antidepressant. His previous response to Desipramine
[Norpramin] needs to be clarified." On November 2, 1988,
after speaking with plaintiffs father and plaintiff, Dr. Hoyle
noted these same concerns, and stated: "Suggest continued
focus on this in psychotherapy. Case discussed at length with
Dr. Schraml and Grossman. Concur."

On October 31, 1988, after a little over a month of
inpatient treatment, plaintiffs medical record stated: "As
discussed in rounds today, [patient] continues to evidence
significant signs and [symptoms] of depression including
speech latency, psychomotor retardation, anhedonia,”’ and
[complaints of] depressed mood [with] corresponding affect.
He has shown partial response to Nortriptyline following
[approximately] 4 weeks at therapeutic level. In light of
persistent depression, will augment TCA [Tricyclic
Antidepressant] [with] Lithium.” However, plaintiff and his
father did not believe it would be in plaintiffs best interest to
take lithium, fearing that it would mean he would not be able
to return to the Naval Academy. After discussing plaintiffs
refusal to take lithium with Dr. Hoyle, Dr. Schram noted the
new plan was to augment Nortriptyline with Prozac, which
"has shown efficacy in the treatment of depressed individuals
with obsessive compulsive characterologic features and
primarily affects a biochemical different from that primarily
affected by Nortriptyline. Have discussed the indications,
possible side effects of and alternative therapies to Prozac.
[Patient] agrees to take this medication."

Dr. Kleiger noted on November 7, 1988, that plaintiff

23 Anhedonia - "total loss of feeling of pleasure in acts that

normally give pleasure.” Dorland’s Illustrated Medica! Dictionary 83
(28th ed. 1994).

an
ava

was "preoccupied with leaving hospital and SAH [subsisting
at home] while [medical] board is being processed. Rigidly
asserts that hospital milieu is not helpful and only makes him
more focused on his problems. . .. While he claims to want to
return to the Academy more than anything, he also makes it
clear how much he suffered there. This seems to reflect his
essential dilemma, his conflict about staying in the Naval
Academy." On November 14, 1988, Dr. Schram! noted that
"(patient] on Ativan [approximately] [four] weeks. Doubt
continuing therapeutic effect. Will taper and [discontinue]."
He was waiting for results of blood tests to determine
plaintiff's level of nortriptyline. On that same day, Dr.
Schraml notes that "224 Nortriptyline level was confirmed by
the lab (therapeutic range 50--150) Toxic level >~ 500. This
marked increase in level (i.e. from 91) at same dose may be
related to addition of Prozac to pharmacotherapy. The
mechanism involved (or possibly involved) is unknown at this
time but will be researched."

Dr. Schraml concurred in a plan to reduce the dosage
of nortriptyline. Two additional nortriptyline levels were
drawn on November 22 and 23, 1988, which showed
plaintiffs level at 179 ng/ml and 192 ng/ml, respectively.
Plaintiff was noted as tolerating the medication well, but
because his blood levels were still outside the therapeutic
range, the decision was made to again reduce the dosage of
nortriptyline. Dr. Hoyle wrote in plaintiffs record that,

"though outside of therapeutic range - [patient] is not
clinically toxic."

On November 30, 1988, plaintiff was provided a copy
of the Medical Board Report recommending discharge from
the Naval Academy and the Naval Service, to which he
submitted a rebuttal. The Medical Board Report summarized
plaintiff's history, his hospital course, and the findings and

30a

diagnoses. The report noted Dr. Sarlin's evaluation of
plaintiff, and stated that a pulmonary specialist "determined
that the patient has hyperactive airway disease which is

largely subclinical and should not be significantly limiting. He
concluded that the patient's somatic complaints are functional
and without organic basis, and that his airway disease is |
secondary to an underlying depression." The report set out

the medications given to plaintiff, but did not state a
prognosis. The report concluded:

After an adequate period of
observation, evaluation and treatment, the
primary diagnosis was established as Major
Depression, Single Episode, Severe without
Psychotic Features - DNEPTE [did not exist
prior to entry] (DSM III-R 296.23) manifested
by depressed mood, psychomotor retardation,
insomnia, diminished concentration and
feelings of worthlessness. The secondary
diagnosis is Obsessive Compulsive Personality
Disorder - EPTE (DSM III-R 301.40) as
manifested by perfectionism, excessive
devotion to work and productivity, and
inflexibility

RECOMMENDATIONS:

The Medical Board concurs with the
above findings and diagnoses. It is the opinion
of the board that the patient is unable to return
to full duty and that he be disenrolled from the
U.S. Naval Academy and discharged from the
U.S. Naval Service. The Medical Board is
further of the opinion that the patient has now
received the maximum benefit of military

3la

hospitalization and treatment and that has not
restored the patient to a duty status. . . . [T]he
Board is of the opinion that the patient is
mentally capable of handling his own affairs.

The Medical Board Report Cover Sheet indicates that a copy
of plaintiffs health record accompanied the report, as did
plaintiff's rebuttal to the report. The members of the Medical
Board were Drs. Pentzien, Hoyle, and Schraml. Captain
Pentzien saw plaintiff on an outpatient basis before his
admission; Lieutenant Commander Hoyle was the attending
psychiatrist during plaintiffs hospitalization, and Lieutenant
Commander Schraml was the psychiatric resident assigned to
plaintiff's case.

Plaintiff was to be followed by Dr. Kleiger in the
outpatient psychology clinic at Bethesda Naval Hospital, and
his medications were to be monitored by a psychiatrist at the
outpatient psychiatry clinic. On December 5, 1988, plaintiff
was discharged from the hospital Over the course of
plaintiffs hospitalization, from September 26, 1988, to
discharge on December 5, 1988, plaintiff was seen by a
number of medical and psychological professionals, including
psychiatric staff, psychiatric residents, and pulmonology
specialists. Over one-hundred forty pages of nursing notes
from nurses and corpsmen, in addition to the over sixty pages
of medical progress notes, reflect the medical attention
plaintiff received while an impatient at Bethesda Naval
Hospital.

On December 7, 1988, plaintiff submitted a rebuttal to
the Medical Board Report. The narrative of the rebuttal was
over six pages long, and plamtiff attached ne pages of
additional materials. In his rebuttal, plaintiff indicated that he
was only twenty-seven credit hours from receiving his honors

32a

political science degree, and suggested that: "Given several
months of convalescence for my present course of medication
to take full effect, coupled with self-imposed exercise and
appropriate outpatient therapy, I believe that I can learn to
manage, control and eventually prevent the reemergence of
any activities which previously may have produced somatic
effects and that I can fully overcome my diagnosed
adversities." Plaintiff's rebuttal further states, m part:

[A]s a result of a consultation by Dr.
Dobson with the Bethesda Medical
Department, I was placed on an antidepressant
which helped me control some of my anxieties
and physical discomforts such as heart
palpitations and chest pain. I was able, under
this medication, to increase my level and
length of concentration, even though I
continued to have some anxiety as to whether
I would be able to achieve my academic and
Navy goals.

In May '88, my medication was
termimated and I went on my first-class cruse.
During the cruise, I again experienced pains
similar to those I had experienced earlier in the
year. I was very uncomfortable for most of
the cruise period. Neither I, nor anyone else,
realized that I was perhaps on the brink ofa
major depressive episode, as has now been
finally diagnosed. .. .

As the 1988 fall term began, I found
myself still to be physically and emotionally
exhausted. I remained deeply agitated over
my "Airways Passage” disease and its effects

33a

on my mental and physical well-being. That
condition placed me under a severe handicap
and ineptitude to pass the mile and a half run
requirements - particularly in the last laps,
when my chest would tightened [sic] up and I
would be forced to slow down. ...

Finally, as the record shows, I was
interned in the hospital this past September.
Even though I was completely stunned over
what had happened to me, I slowly began to
realize that I had indeed suffered a major
depressive episode - but, while it cannot be
cured overnight, it can be resolved through
proper medical treatment and therapy and may
never occur again.

I have discovered that many of the
poor physical and emotional feelings which I
experienced culminated from the on set of my
depressive episode. Since I have been at
Bethesda Nava! Hospital, I have learned to
control my anxieties and to use relaxation
methods at night to calm myself I have also
learned to put my desires and goals into better
perspective in relation to my depressive
experience. I believe that, with a little more
time to allow the current program of
medication to achieve its full effect, I will be
able to recuperate fully. I will be able to build
up my physical, mental and emotional stamina
so that I can continue with my intended naval
career. In order to accomplish this, I
respectfully request that I be allowed to
pursue one of the following three options,

34a

preserving my opportunity to graduate from
the Naval Academy and receive a commission
in the United States Navy.

Plamntiff's rebuttal then proceeded to outline three
possible scenarios which would allow him to recuperate and
return to the Academy. The first option, which was plaintiffs
preferred option, would have plaintiff remain at home on
convalescent leave from December 1988 through June 1989,
then transition to the Naval Academy's class of 1990 on July
1, 1989.

Plamtiff's second option was similar to the first, except
that his convalescent leave at home would extend for two
months longer over the summer, and he would not undertake
summer activities at the Naval Academy. He would then join
the class of 1990 at the commencement of classes in the fall
of 1989. He would carry a full academic load, with expected
graduation in May, 1990. Plamtiff considered this option to
be less advantageous since, under it, he would have to take a
full course load in both the fall and spring semesters.

Plaintiffs third option would have him returning to the
Naval Academy at the beginning of the second semester in
January 1989, approximately three weeks after his discharge
from the hospital. He stated that, "because [he] would still
need to allot specific segments of time to continue the
rebuilding of [his] physical and cognitive stamina, this option
would have to permit an exception to the usual, average
number of academic hours required to be carned during an
academic semester.” He then proposed six semester hours for
that spring 1989 semester, six hours over the summer, and a
full fifteen hour course load during the fall 1989 semester, to
ensure his graduation with the honors degree mn political
science.

On February 9, 1989, the Superintendent of the
Academy, Rear Admiral V. L. Hill, Jr., forwarded the
Medical Board Report to the Secretary of the Navy via the
Chief of Naval Personnel, with a statement "concurring with
the recommendation of the Medical Board and Convening
Authority that plairtiff be disenrolled from the Naval
Academy and separated from the Naval Service." On March
9, 1989, the Office of the Chief of Naval Personnel forwarded
the Medical Board Report to the Secretary of the Navy,
stating, "the Chief of Naval Personnel concurs with the
Superintendent, U.S. Naval Academy and the Convening
Authority that Midshipman Kenneth B. Golding be
discharged from the U.S. Naval Academy and the Naval
Service by reason of major depression, single episode,
resolving, that did not exist prior to entry ito the Naval
Service. "

On March 17, 1989, the Assistant Secretary of the
Navy (Manpower and Reserve Afiairs), Kenneth P.
Bergquist, sent a letter to plaintiff, forwarded through the
Chief of Naval Personnel and the Superintendent of the Naval
Academy. The letter stated,

1. Reference (a) [the Medical Board
Report] is notification of the medical
determination that you have been found to be
physically disqualified for the Naval Service by
reason of a major depression, single episode,
resolving, that did not exist prior to entry into
the Naval Service. You are hereby discharged
from the U.S. Naval Academy and honorably
discharged from the Naval Service, by reason
of physical disability to take effect upon
completion of processing for separation.

36a

a s —_-

On March 21, 1989, the Office of the Chief of Naval
Personnel forwarded Mr. Bergquist's letter to the
Superintendent of the Naval Academy, and on March 27,
1989, the Superintendent forwarded the letter to plaintiff.
Plaintiff's honorable discharge was effective March 27, 1989.

On March 31, 1989, four days after the effective date
of plaintiffs discharge, he submitted an application to the
Veterans Administration (VA) for disability compensation.
On June 19, 1989, plaintiff filled out a VA "Report of
Medical Examination for Disability Evaluation.” Plaintiff
wrote: "1987: RML Pneumonia; 1987-Present: contracted
into Reactive Airways Disease; 1988-Depressive Episode due
to ilness involved.” He also stated, "[cJhronic state of
anxiety, depression, from withdrawal of medication.
Conventional Medication caused a number of side effects
which has affected my thinking capability and my body's
organs.”

On June 15, 1989, plaintiff was seen for a Veterans
Administration disability rating examination by Dr. Irfan
Kucukcetin, M.D., a VA psychiatrist. Dr. Kucukcetin noted
plaintiff was "very upset over the fact that conventional
medication caused a number of side effects.” Plaintiff
described himself as "persistent, innovative, creative and a
very relaxed person." Plaintiff told Dr. Kucukcetin that he
thought his asthma was getting worse. Dr. Kucukcetin stated
plaintiffs "insight was minimal or poor to his condition.”
From the history and clinical findings, Dr. Kucukcetin
diagnosed plaintiff with "Major depression - single episode,
severe, without psychotic features."

A June 19, 1989, chest x-ray was normal, with no

active cardiopulmonary findings. A pulmonary function test
performed on July 13, 1989, showed plamtiff with reduced

37a

pulmonary capacity. On August 21, 1989, plaintiff was
assigned a disability rating often percent. The effective date
of the disability rating was April 1, 1989, and the monthly
disability payment for plaintiff was set at $73.00.

On September 21, 1992, as part of a periodic
re-evaluation of plaintiffs VA benefit, plaintiff was examined
by Alex R. Kelly, M.D. Dr. Kelly notes plaintiff's belief that
he was "inadequately and inaccurately treated by the Navy,"
leading to plaintiffs discharge ftom the Naval Academy.
From his discussion with the plaintiff, Dr. Kelly stated:

It does appear that he had a reactive
adjustment-type illness, perhaps correctly
diagnosed as atypical depression while in the
Navy, and his diagnosis will be continued,
although the symptoms were not typical of
depression and he does not appear depressed
at the present time.

Dr. Kelly stated his diagnosis as "atypical depression, single
episode; now in remission." Plaintiff's disability rating was
continued at ten percent, and his monthly payment was now
$83.00.

After leaving the Naval Academy, plaintiff attended
the University of Virginia, graduating in 1992. Because of
the University of Virginia's academic requirements, plaintiff
was required to attend classes for two years in order to
receive his degree, completing seventy-two semester credit
hours.

The December, 1989 American Journal of Psychiatry
contained a letter to the editor titled, "Fluoxetine and
Nortriptyline Combination Therapy.” The letter was written

38a

by Drs. Hoyle, Clayton, and Schraml, and Mr. Benedetti.
Drs. Hoyle and Schraml were two of the three members of
the plaintiffs Medical Board, in addition to being involved in
plaintiffs care. Dr. Clayton was the psychiatrist who
examined plaintiff upon his admission to the hospital. The
letter refers to the treatment of a "Mr. A." Defendant
acknowledges that plaintiff is the "Mr. A" referred to in the
letter to the editor. The letter indicates that its purpose is to
report a case where there was a marked increase in the
patient's serum level of nortriptyline following augmentation
with fluoxetine (Prozac). The letter concluded that "this case
indicates the need for caution and frequent serum level
monitoring when combining fluoxetine and other
antidepressant medications." Plaintiff advises that he
discovered the letter in December 1994, and subsequently
filed the mstant complamt.

DISCUSSION
tion to Di

The plaintiff has filed a motion for summary judgment
and the defendant has filed a motion to dismiss the complaint
for lack of subject matter jurisdiction and/or for failure to
state a claim upon which relief can be granted pursuant to
RCFC 12(b\(1) and 12(b)(4), respectively, as well as a
motion for summary judgment discussed below. Subject
matter jurisdiction may be challenged at any time by the
parties, by the court sua sponte, or on appeal Booth v.
United States, 990 F.2d 617, 620 (Fed. Cir. 1993), reh'g

denied (1993); United States v. Newport News Shipbuilding
& Dry Dock Co., 933F.2d 996, 998 n.1 (Fed. Cir. 1991).

Once jurisdiction is challenged by the court or the opposing
party, the plaintiff bears the burden of establishing

jurisdiction. See McNutt v. Gen. Motors Acceptance Corp.

39a

of Ind., 298 U.S. 178, 189, 80 L. Ed. 1135, 56 S. Ct. 780
(1936); Alaska v. United States, 32Fed. Cl 689, 695 (1995),
appeal dismissed, 86 F.3d 1178 (Fed. Cir. 1996); Catellus
Dev. Comp. v. United States, 31 Fed. CL 399, 404 (1994);

, 933 F.2d 991, 993 (Fed. Cir.
1991). A plaintiff must establish jurisdiction by a
preponderance of the evidence. Reynolds v. Army & Air
Force Exch. Serv., 846 F.2d 746, 748 (Fed. Ci. 1988);
Alaska v. United States, 32 Fed. Cl. at 695. When construing
the pleadings pursuant to a motion to dismiss, the court
should grant the motion "only if ‘it appears beyond doubt that
plaintiff can prove no set of facts in support of [its] claim
which would entitle [it] to relief”
States, 42 Fed. Cl. 532, 537 (1998) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99
(1957)); see also Hamlet v. United States, 873 F.2d 1414,
1416 (Fed. Cir. 1989); W.R. Cooper Gen, Contractor, Inc, v.
United States, 843 F.2d 1362, 1364 (Fed. Cir. 1988) ("If the .
_ . facts [alleged in the complaint} reveal any possible basis on
which the non-movant might prevail, the motion must be
denied.").

Pursuant to RCFC 8(a)(1) and the Federal Rules of
Civil Procedure 8(a)(1), a plaintiff need only state in the
complaint "a short and plain statement of the grounds upon
which the court's jurisdiction depends . . . ." However,
"determination of jurisdiction starts with the complaint, which
must be well-pleaded in that it must state the necessary
elements of the plaintiffs claim, independent of any defense
that may be interposed." Holley v. United States, 124 F.3d
1462, 1465 (Fed. Cir. 1997), reh'g denied (1997).
"Conclusory allegations unsupported by any factual assertions
will not withstand a motion to dismiss.” Briscoe v. LaHue,
663 F.2d 713, 723 (7th Cir. 1981), affd, 460 U.S. 325, 75 L.
Ed. 2d 96, 103 S. Ct. 1108 (1983); see also Bradley v. Chiron

40a

EPR eG ORRIN kT ENR FO MR

Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998) ("Conclusory
allegations of law and unwarranted inferences of fact do not
suffice to support a claim.").

When deciding on a motion to dismiss based on either
lack of subject matter jurisdiction or failure to state a claim,
this court must assume that all undisputed facts alleged in the
complaint are true and must draw all reasonable inferences in

the non-movant's favor. See Scheuer v. Rhodes, 416 U.S.
232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Conley v.

Gibson, 355 U.S. at 45-46; accord Boyle v. United States,
200 F.3d 1369, 1372 (Fed. Cir. 2000); see also Alaska v.
United States, 32 Fed. Cl. at 695; Highland Falls-Fort
Montgomery Cent. School Dist. v. United States, 48 F.3d
1166, 1167 (Fed. Cir. 1995) (citing Gould, Inc. v. United
States, 935 F.2d 1271, 1274 (Fed. Cir. 1991)), cert. denied,
516 U.S. 820 (1995); Henke v, United States, 60 F.3d 795,

797 (Fed. Cir. 1995); Hamlet v. United States, 873 F.2d at
1416. Ifa defendant or the court challenges jurisdiction or

plaintiffs claim for relief, however, the plaintiff cannot rely
merely on allegations in the complaint, but must instead bring
forth relevant, competent proof to establish jurisdiction.
McNutt v. Gen, Motors Acceptance Corp. of Ind., 298 U.S.
at 189; see also Land v. Dollar, 330 U.S. 731, 735 n.4, 91 L.
Ed. 1209, 67 S. Ct. 1009 (1947); Reynolds v. Army & Air
Force Exch. Serv., 846 F.2d at 747; Catellus Dev. Corp. v.
United States, 31 Fed. Cl. at 404-05. When considering a
motion to dismiss, the court may examine relevant evidence in
order to resolve any disputes as to the truth of the
jurisdictional facts alleged in the complaint. Reynolds v.
Army & Air Force Exch. Serv., 846 F.2d at 747; see also
Cedars-Sinai Med. Ctr, v. Watkins, 11 F.3d 1573, 1584 (Fed.

Cir. 1993), cert. denied sub nom. Cedars-Sinai Med. Ctr. v.
O'Leary, 512 U.S. 1235 (1994) ("In establishing predicate

jurisdictional facts, a court is not restricted to the face of the

4la

pleadings, but may review evidence extrinsic to the pleadings,
including affidavits and deposition testimony.").

In order for this court to have jurisdiction over a
plaintiffs complaint, the Tucker Act requires that the plaintiff
identify an independent substantive right enforceable against
the United States for money damages. 28 U.S.C. § 1491
(1994 & Supp. II 1998). The Tucker Act states:

The United States Court of Federal Claims
shall have jurisdiction to render judgment
upon any claim against the United States
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 m tort.

28 U.S.C. § 1491(a)(1). As interpreted by the United States
Supreme Court, this Act waives sovereign immunity to allow
jurisdiction over claims (1) founded on an express or implied
contract with the United States; (2) for a refund from a prior
payment made to the government; or (3) based on federal
constitutional, or statutory, or regulatory law mandating
compensation by the federal government for damages
sustained. See United States v. Testan, 424 U.S. 392, 400, 47
L. Ed. 2d 114, 96 S. Ct. 948 (1976), reh'g denied, 425 U.S.
957, 48 L. Ed. 2d 202, 96 S. Ct. 1736 (1976) (citing Eastport
Steamship Comp. v. United States, 178 Ct. Cl. 599, 605-06,
372 F.2d 1002, 1009 (1967)); see also Palmer v. United
States, 168 F.3d 1310, 1314 (Fed. Cir. 1999); Stinson, Lyons
& Bustamante, P.A nited States, 33 Fed. Cl. 474, 478
(1995), affd, 79 F.3d 136 (Fed. Cir. 1996). A waiver of
traditional sovereign immunity "cannot be implied but must

42a

be unequivocally expressed."" Saraco v. United States, 61
F.3d 863, 864 (Fed. Cir. 1995) (quoting United States v.
King, 395 U.S. 1, 4, 23 L. Ed. 2d 52, 89 S. Ct. 1501 (1969)),

cert, denied, 517 U.S. 1166 (1996).

The Tucker Act, however, merely confers jurisdiction
on the United States Court of Federal Clams, "it does not
create any substantive nght enforceable against the United
States for money damages.”

U.S. 535, 538, 63 L. Ed. 2d 607, 100 S. Ct. 1349 (quoting
United States v. Testan, 424 U.S. at 398-99), reh'g denied,
446 U.S. 992, 64 L. Ed. 2d 849, 100 S. Ct. 2979 (1980);
United States v, Connolly, 716 F.2d 882, 885 (Fed. Cr.
1983) (en banc), cert. denied, 465 U.S. 1065, 79 L. Ed. 2d
740, 104 S. Ct. 1414 (1984). Individual claimants, therefore,
must look beyond the jurisdictional statute for a waiver of
sovereign mmunity. United States v. Mitchell, 445 U.S. at
538. "In order for a claim against the United States founded
on statute or regulation to be successful, the provisions relied
upon must contain language which could famrly be mterpreted
as mandating recovery of compensation from the
government.” Cummings v. United States, 17 Cl. Ct. 475,
479 (1989), affd, 904 F.2d 45 (Fed. Cir. 1990) (table)
(citations omrted); see also United States v. Mitchell, 463
U.S. 206, 216-17, 77 L. Ed. 2d 580, 103 S. Ct. 2961 (1983)
(quoting United States v. Testan, 424 U.S. at 400 (quoting
Eastport Steamship Corp. v. United States, 178 Ct. Cl. at

607, 372 F.2d at 1009))); Tippett v. United States, 185 F.3d
1250, 1254 (Fed. Cir. 1999) ("The plaintiff must assert a

claim under a separate money-mandating constitutional!
provision, statute, or regulation, the violation of which
supports a claim for damages against the United States.”)
(quoting James v. Caldera, 159 F.3d 573, 580 (Fed. Cr.
1998), reh'g denied (1999); John Doe v. United States, 100
F.3d 1576, 1579 (Fed. Cir. 1996), reh'g denied (1997);

43a

Mover v. United States, 190 F.3d 1314, 1318 (Fed. Cir.

1999) ("Under the Tucker Act, when a cause ofaction is not
based upon breach of contract against the government, the
Court of Federal Claims has jurisdiction only over those
constitutional provisions, statutes, or regulations that by their
terms entitle a plaintiff to money.”)

Plaintiffs complaint states that he was wrongfully
discharged from the Naval Acadenry and the Naval Service.
Plaintiff does not cite a pay mandating statute, however, 37
U.S.C. § 203(c) (1988), cited by the defendant in its briefing
papers, entitled plaintiff to receive monthly cadet pay until
properly separated. If plaintiffs discharge was improper, he
would have been entitled to the pay and allowances he would
have received as a midshipman until he was offered a
commission, accepted it, and was commissioned as an officer

in the Naval Service. See Sawyer v. United States, 930 F.2d
1577, 1580 (Fed. Cir. 1991).

Plaintiff further asks that he be awarded a diploma
from the Naval Academy; that his discharge be voided and
that he be restored to duty; that he receive back pay and
allowances for the time period from his discharge from the
Navy to the present; in order to be "made whole’ for the
deprivations he has suffered.” Plaintiff asserts an entitlement
to pay, post-Naval Academy, by commissioned Naval officers
under the authority of the military pay statute, 37 U.S.C. §
204(a\ 1) (1988), and to ancillary relief under the Tucker Act.

Term of Service
Plaintiff argues that it was his mtention to make a
career in the Navy, and not merely to study at the Naval

Academy for a four-year term of service. Plamtiff's position
is that he was an officer with an indefinite term of service, and

44a

:
é

"should be found to be a constructive member of the military
service until such time as he is legally separated from the
service, which has yet to happen.” Plaintiff relies on Groves
v. United States, 47 F.3d 1140 (Fed. Cir.), reh'g denied
(1995), for support. The court, however, finds Groves
distinguishable from the present case.

Major Groves was an Army officer on active duty
when he was court-martialed, convicted for filmg false trave!
claims requesting reimbursement in the amount of $443.40,
confined for three months, then relieved from active duty
pending appellate review of his conviction. During his
confinement he remained a commissioned officer in the Army
Reserves under an appointment for an indefinite term on
active duty. Groves v. United States, 47 F.3d at 1142-43.
His conviction was subsequently overturned on appeal, with
the appellate court directing that "all mghts, privileges and
property of which the accused has been deprived by virtue of
the findings of guilty and sentence so set aside will be
restored.” Id. at 1143. This language had a statutory origm.
Id. at 1143 (citing 10 U.S.C. § 875S(a)). The United States
Court of Appeals for the Federal Circuit determined that
Major Groves’ backpay did not end upon his discharge.
Major Groves was improperly discharged on Jamuary 22,
1991, but was not ordered to report for duty until February
15, 1992. Major Groves refused to report for duty despite
being ordered to do so on the latter date. Id. at 1146. The
Federal Circuit determined that Major Groves was entitled to
backpay beyond the defective discharge, until the pomt that
he was ordered to return to duty, but refused to do so.

_ Plaintiff states that he "was like the liigant in Groves
v. tat . ,who was an officer on active duty for
an indefinite term of service. Id. at 1143," so that backpay
may be awarded, beyond a defective discharge. Had plaintiff

45a

been a commissioned officer, Groves might have applied.
However, questions regarding the interrupted service of a
midshipman at the Naval Academy by reason of physical
disability are not resolved by the decision in Groves. Rather
than the specialized statutory and regulatory scheme at issue
in Groves, the Naval Academy s governed by ts own
specialized mechanism, discussed below.

Plaintiff argues that, under the governing statutes and
agreements, a midshipmen serves until lawfully discharged
from the military or the midshipman resigns and the
resignation is accepted. Plaintiff took the oath of office as a
midshipman at the Naval Academy on July 2, 1985, and was
discharged for physical disqualification less than four years
later, on March 27, 1989. The course of study at the Naval
Academy is statutorily defined as four years. 10 U.S.C. §
6966 (1988). Plaintiff signed an "Agreement to Serve and
Degree Requirements,” prior to taking the oath of office as a
midshipman. Plaintiff's agreement provided that, "[i]n
accordance with Title 10, U.S. Code Section 6959(a),”
"unless sooner separated from the [N]aval [S]ervice,” he
would "{c]omplete the course of struction at the Naval
Academy (which inchudes satisfactorily achieving the required
standards of performance . . . until the time of appointment as
a commissioned officer).” Plamtiff also agreed to "accept a
commission .. . if it is proffered.” The language of the
agreement is consistent with 10 U.S.C. § 6959, which s cited
in the agreement. The statute provides that a midshipman
"will complete the course of mstruction at the Naval
Academy,” and upon graduation, “will accept an appomtment,
if tendered, as a commissioned officer... .” 10 U.S.C. §
6959(a)(1), (2A) (1988).

The agreement and statutory provisions demonstrate
that plamtiffs situation is not analogous to that of Major

46a

‘ 1s angel bets , 2 - wats p [Mia ote t
ig ot WE AR Y SR GAS Let POR APOE Po ST ay © ne POOR ? .

Groves. Plamtiffs situation is more analogous to enlisted
members of the armed forces, whose entitlement to backpay
ends with ther specified terms of enlistment. See Maier v.
Orr, 754 F.2d 973, 983 (Fed. Cw.), reh'g denied, 758 F.2d
1578 (Fed. Cir. 1985); Hawley v. United States, 12 Cl Ct.
563, 567 (1987); McEniry v. United States, 7 Cl. Ct. 622,
626, affd, 785 F.2d 323 (Fed. Cir. 1985) (table). Plaintiffs
situation also is more analogous to the Army Reserve Officer
Training Corps (ROTC) cadet in Martinez v. United States
who was disenrolled from the senior ROTC program’ S
advanced course due to drug abuse. Martinez v. United
States, 26 CL Ct. 1471 (1992), affd, 11 F.3d 1069 (Fed. Cr.
1993) (table). A formal Board of Officers recommended
disenroliment, and the Army Board for Correction of Military
Records denied relief to the cadet. Id. at 1477. The court
concluded that:

At the time of his separation from the military,
Martinez was a Senior ROTC cadet recetving
a monthly stpend. His status as a ROTC
cadet would have ended when he graduated
and received his commission: ten days after his
disenroliment.

The United States undertook to pay
Martinez until his current ROTC assignment
ended, unless the Army properly discharged
him pnor to that time. See Austin v. United
States, 206 Ct. CL 719, 723, cert. denied, 423
U.S. 911, 96S. Ct. 215, 46 L. Ed. 2d 140
(1975). The alleged unlawful separation
interrupted a continuing obligation between
Martinez and the United States. Thus, this
court has jurisdiction to review Martinez’s
alleged unlawfu! separation action based on

47a

his premature disenrollment from ROTC.

This court cannot, however, base any
relief on Martinez's expectation of a
commission as a second lieutenant, which was
within the Army's discretion to either grant or
deny. Wright v. United States, 209 Ct. Cl
734, 734-35 (1976); see also Testan [v.
United States, ] 424 U.S. [392,] 402, 96 S. Ct.
[948,] 955 [(1976)] (stating that "the
established rule is that one 's not entitled to
the benefit of a position until he has been duly
appointed to it”).

Martinez v. United States, 26 Cl Ct. at 1474. See also Orloff
v. Willoughby, 345 U.S. 83, 90, 97.L. Ed. 842, 73 S. Ct. 534
("It is obvious that the commissioning of officers in the Army
is a matter of discretion within the province of the President
as Commander in Chief. Whatever control courts have
exerted over temure or compensation under an appomtment,

nO
3

(emphasis in original)), reh’g denied, 345 U.S. 931, 97 L. Ed.

1360, 73 S. Ct. 779 (1953); Rice v. United States, 31 Fed. Cl

156, 162-63 (1994), affd, 48 F.3d 1236 (Fed. Cir. 1995)
(table). Plaintiff has not convinced the court that Groves
controls, in light of the circumstances of that case, compared
to the language of plaintiff's agreement with the Naval
Academy and of 10 U.S.C. § 6959. The term of service of
midshipmen is not indefinite, but contingent upon
achievement of all standards of performance, satisfactory
completion of the course of instruction, and proffer and
acceptance of a commission. Major Groves had been offered
and had accepted a commission, unlike plamtiff If plaintiff is
able to demonstrate a defective discharge for the purposes of

48a

Ra a ee ae wR AF a

back pay, it would take him to the end of a midshipman's term
of service, and no further.

Defendant argues that plaintiff is not entitled even to
the backpay between the date of his discharge and the date he
would have graduated from the Naval Academy. Citing
Graves v. United States, 176 Ct. Cl. 68, 70, 74 (1966),
defendant asserts that the plaintiff, due to physical disability,
was not "ready, willing, and able” to resume his position as a
midshipman, and asks that the request for backpay for this
period be dismissed. The court notes, however, that Mr.
Graves was not a midshipman or even a service member, but
a GS-12 civil servant, who separated from the civil service
due to a reduction m force. Id. at 74. Plaintiff argues that he
was "convalescing until such time as he recuperated and was
able to resume his duties,” and notes that he was paid during
the time at Bethesda Naval Hospital, and also during the
period that he was convalescing at home, up to the point he
was discharged. Plaintiffs argument is that, if his
"mvoluntary discharge was mproper, his statutory right to
pay was not extinguished.” This court does not accept
defendant's contention that plaintiff, who, like the plaintiff in
Graves, was on sick leave, was not ready, willing, and able to
report for duty up until the time of plaintiff Golding’s
discharge. The court, therefore, turns to a determination of
whether or not Mr. Goldmg was improperly discharged from
the Naval Academy and the Naval Service.

Dismissal in th t Int the Servi

Plamtiff alleges in count two of his complaint that 10
U.S.C. § 6961 (1988) (titled "Midshipmen: dismissal for the
best interests of the service") and Secretary of the Navy
Instruction (SECNAVINST) 1531.1A, dated March 13,
1989, which mplements the statute, required the personal

49a

approval of the President of the United States before plaintiff
could be discharged. Instead, plaintiff's discharge was
effected by a letter from the Assistant Secretary of the Navy
for Manpower, Reserve Affairs, and Logistics. Section 6961
provides that:

(a) Whenever the Superintendent of
the Naval Academy believes that the continued
presence of any midshipman at the Academy is
contrary to the best interest of the service, he
shall report in writing to the Secretary of the
Navy a full statement of the facts upon which
his belief is based. If the Secretary determines
from the report that the Superintendent's belief
is well founded, the Secretary shall serve a
copy of the report on the midshipman. Within
such time as the Secretary considers
reasonable, the midshipman shall show cause
in writing why he should not be dismissed
from the Academy. The Secretary, after
consideration of any cause so shown, and with
the written approval of the President, may
dismiss the midshipman from the Academy
and from the naval service.

(b) The truth of any issue of fact raised
under subsection (a), except as to the record
of demerits, shall be determined by a court of
inquiry convened by the Secretary.

10 U.S.C. § 6961 (1988). Plaintiff contends that the
Superintendent did not provide the Secretary of the Navy
with the required written report, the Secretary of the Navy
did not provide the plaintiff with an opportunity to show
cause why he should not be dismissed, and the President

50a

never approved plaintiffs dismissal.

Defendant responds that it did not, in fact, rely on 10
U.S.C. § 6961 as the basis for plaintiffs discharge. Defendant
cites as an example of a proper section 6961 discharge the
case of Dougherty v. Lehman, 688 F.2d 158 (3d Cir. 1982).
In that case, however, Midshipman Dougherty was
discharged from the Naval Academy for sexual misconduct
pursuant to 10 U.S.C. § 6962 (1988) (titled "Midshipmen:
discharge for unsatisfactory conduct or maptitude”), not
section 6961. Id. at 159-61. Defendant cites Wimmer v.
Lehman, 705 F.2d 1402 (4” Cir.), cert. denied, 464 U.S. 992,
78 L. Ed. 2d 681, 104S. Ct. 484 (1983), as another example
of a section 6961 case; however, Midshipman Wimmer was
discharged from the Naval Academy for possession and use
of marijuana, also pursuant to 10 U.S.C. § 6962, not section
6961. Id. at 1403. Nor has the plaintiff identified any
reported cases of midshipmen discharged from the Naval
Academy for physical disqualification pursuant to 10 U.S.C. §
6961, the statute plaintiff contends is applicable.

Section 6961, though broadly titled ("best interest of
the service”), does not state that it is required to be used for
physical disqualification cases. The United States Code
reflects that changes were made to section 1961 in 1956:
"The words ‘court of inquiry are substituted for the words
‘board of inquiry’ to conform to the terminology of the
Uniform Code of Military Justice." 10 U.S.C. § 6961
(Historical and Revision Notes) (1988). As noted above,

24 "Courts ofinquiry" may be convened by the general
court-martial convening authority to investigate any matters. 10 U.S.C.
§ 935 (1988) (Uniform Code of Military Justice, Article 135). The
record of proceedings of a court of inquiry, reflecting the testimony of a
person whose oral testimony is not available, may be admissible in a

Sla

this 1956 change is reflected in the language of 10 U.S.C. §
6961(b): "The truth of any issue of fact raised under
subsection (a). . . shall be determined by a court of inquiry
convened by the Secretary.” 10 U.S.C. § 6961 (b). This
reference in the United States Code to the Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 801-940 (1988), the
military's criminal code, suggests that section 6961 potentially
involves dismissal from the Naval Academy for UCMJ
offenses, and not disenrollment for physical disqualification,
which is not involved with the UCMJ. Furthermore, the
reference in 10 U.S.C. § 6961(b) to "demerits," suggests that
section 6961 is intended for cases involving other than
physical disqualification. No cases involving discharge under
section 6961, either physical disqualification cases, or other
types of cases have been identified.

Defendant argues that plaintiff was discharged "solely
because he was physically disqualified to be retained.”
Defendant cites to the Mamual of the Medical Department,
U.S. Navy, which states: "A periodic and precommissioning
physical examination of Naval Academy midshipmen must be
conducted following regulations governing the Naval
Academy and at such time as may be determined by the
Superintendent."** Defendant notes that the Manual of the
Medical Department, dated July 2, 1987, requires the referral
of a case to a Medical Board when:

court-martial. 10 U.S.C. § 850 (1988) (Uniform Code of Military
Justice, Article 50).

25 After reviewing the record, the court requested the parties
to provide copies of the applicable Navy Medical Manual, the Navy
Personnel Manual, and the Medical Policy for Not Physically Qualified
Naval Midshipmen instead of the very limited references provided in the
briefs.

52a

LES GR BS Sa aie 2 OOS Ret I RT Ghat ey: ae i eo Nahe’ a. ys Sa * - we

tee aan a Rg SOHAL

18-11(2)(d) Continued military service
would probably result in an inordinate amount
of hospitalization or other close medical
supervision; or would be likely to aggravate
the existing condition.

ses

18-11(2)(g) In the opinion of the
cognizant medical officer a service member
has suffered from a significant illness or Injury
which may impact on future service, even
though the member may now appear to be fit
for full duty.

18-12(2) When an officer candidate or
midshipman has been undergoing treatment
for any impairment which is likely to be
recurrent or progressive or to become
incapacitating either prior or subsequent to
appointment, the officer candidate or
midshipman will be ordered before a medical
board before being returned to duty. The
physical fitness of such members is to be
evaluated in regard to probable ability to
perform duty in commissioned grade rather
than to continue in training. In such instances,
final determination of the member's physical
fitness for appointment to commissioned grade
shall be held in abeyance pending
Departmental action on the board's report.

The Manual of the Medical Department indicates that
Medical Boards "serve to report upon the present state of

53a

health of any member of the Armed Forces and as an
administrative board by which the convening authority or
higher authority obtains a considered clinical opinion
regarding the physical status of service personnel.”

Pursuant to the Naval Military Personnel Manual,
dated January 11, 1989, disenroliment of midshipmen from
the Naval Academy and separation from the Naval Service
was authorized by letter from the Secretary of the Navy due
to physical disqualification for military service:

3640415 DISPOSITION OF
MIDSHIPMEN DISENROLLED FROM
THE NAVAL ACADEMY

ss

6. Disenrollment from the Naval Academy is
authorized by letter from the Secretary of the
Navy directing disposition in accordance with
the following: . .. b. Discharge from the naval
service provided the midshipman is determined
to be in one of the following categories: . . .
(2) Is disenrolled from the Naval Academy
because of. . . physical disqualification for
military service... In each case of this nature,
the individual letter from the Secretary of the
Navy authorizing disenroliment from the
Naval Academy will direct separation from the
naval service as well.

The record reflects that on February 9, 1989, the
Superintendent of the Naval Academy, Rear Admiral V. L.

Hill, Jr. forwarded plaintiffs Medical Board Report to the
Secretary of the Navy, through the Chief of Naval Personnel,

54a

ee ss—S

"concurring with the recommendations of the Medical Board
and Convening Authority that Midshipman Golding be
disenrolled from the Naval Academy and separated from the
Naval Service." On March 9, 1989, the Medical Board
Report was forwarded, by direction of the Chief of Naval
Personnel, to the Secretary of the Navy, concurring that
plaintiff be discharged from the Naval Academy and the
Naval Service. On March 17, 1989, the Assistant Secretary
of the Navy (Manpower and Reserve Affairs), Kenneth P.
Bergquist, in a letter "From: Secretary of the Navy,” to
plaintiff, through the Chief of Naval Personnel, stated that:
"Y ou are hereby discharged from the U.S. Naval Academy
and honorably discharged from the Naval Service, by reason
of physical disability to take effect upon completion of
processing for separation.”

Statutory language at 10 U.S.C. § 5013 (titled
"Secretary of the Navy") provides that the Secretary is
responsible for all affairs of the Navy, including recruiting and
training, 10 U.S.C. § (b)(1) and (b)(5), and that the Secretary
"may assign such of his functions, powers, and duties as he
considers appropriate to the . .. Assistant Secretaries of the
Navy... ." 10 U.S.C. § 5013(f) (1988). Pursuant to 10
U.S.C. § 5014(bX2) (1988), the Office of the Secretary of the
Navy includes the Assistant Secretaries of the Navy.
Regulations at 32 C.F.R. § 700.203 describing the
organization of the Navy under the direction of the Secretary
of the Navy, provide that:

(a) The Civilian Executive Assistants
to the Secretary of the Navy [include]. . . the
Assistant Secretaries of the Navy. .. . It is the
policy of the Secretary to assign
Department-wide responsibilities essential to
the efficient administration of the Department

55a

of the Navy to and among his Civilian
Executive Assistants.

(b) The Civilian Executive Assistants,
within their respective areas of responsibility,
are the principal advisers and assistants to the
Secretary on the administration of the affairs
of the Department of the Navy. ... The
Civilian Executive Assistants are authorized
and directed to act for the Secretary within
their assigned areas of responsibility.

** *

(e) The Assistant Secretary of the
Navy (Manpower, Reserve Affairs and
Logistics) is responsible for the overall
supervision of manpower and reserve
component affairs of the Department of the
Navy, including policy and administration of
affairs related to military (active and mactive)
and civilian personnel. . . .

32 C-F.R. § 700.203(a), (b), (e) (1988). The court concludes
that the Secretary of the Navy was authorized, by Navy
regulations, to discharge plaintiff for physical disqualification,
and that the Assistant Secretary of the Navy for Manpower,
in turn, was authorized to act for the Secretary in this regard.
Count two of the comphint, which alleges a violation of 10
U.S.C. § 6961 and the Navy instruction which implements 10
U.S.C. § 6961, is inapplicable to this case, and is dismissed
on the pleadings, for failure to state a claim upon which relief

56a

can be granted.”

The Equal Employment Opportunity (EEO) Program

Plaintiff alleges in count five of the complaint that his
discharge violated the Department of Defense Equal

26 Defendant argues, in the alternative, that even if 10 U.S.C
§ 6961 applied to this case, the Navy properly discharged plaintiff.
Section 6961 provides for the dismissal of midshipmen only with the
written approval of the President. In this regard, the United States Code
also provides, at 10 U.S.C. § 6961, as follows: “For delegation to the
Secretary of Defense of authority vested in the President by section 1062
of former Title 34 [the source of section 6961], see Ex. Ord. No. 10621,
July 1, 1955, 20 F.R. 4759, set out as a note under section 301 of Title 3,
The President." 10 U.S.C. § 6961 (1988) ("Delegation of Functions").
The cited Executive Order 10621 delegates the President's discharge
authority under 10 U.S.C. § 6961 to the Secretary of Defense, with no
restrictions on redelegation. Exec. Order No. 10,621, 20 F.R. 4759
(July 1, 1955), reprinted as amended in 3 U.S.C. § 301 app. (1994). In
turn, Department of Defense Directive 1332.23, dated Feb. 19, 1988,
and titled “Service Academy Disenrollment,” provides for the separation
of physically disqualified service academy cadets and midshipmen, and
directs the Secretaries of the Military Departments to comply with the
Department of Defense directive. Implementing the Department of
Defense Directive, Secretary of the Navy Instruction (SECNAVINST)
1531.1A, dated March 13, 1989, and titled "U.S. NAVAL ACADEMY
MIDSHIPMEN DISENROLLMENT,” similarly provides for the
separation of physically disqualified midshipmen. Thus, section 6961
discharge authority appears to have been delegated to the Navy, as
suggested by the defendant. Section 6961 also provides for a written
report providing the basis for the discharge, and an opportunity for a
midshipman to show cause why he should not be dismissed from the
Naval Academy. Both of these elements are present in this case, with
the Medical Board Report and plaintiff's rebuttal serving these
functions. Therefore, even if section 6961 applied to this case, it would
be satisfied under the facts of this case. As noted above, however,
section 6961 did not provide the basis for plaintiff's disenrollment for
physical disqualification.

57a

Employment Opportunity (EEO) Program, citing 32 CFR.
Part 51 (1988). Part 51 is titled "Education and Training in
Human/ Race Relations for Military Personnel,” and
"establishes the policies and assigns responsibilities for
developing an active DoD program of education and training
in human/race relations and equal opportunity.” 32 C.F.R. §
$1.1(c). Plaintiff does not cite specific provisions of this
regulation, or case citations, and does not specify how this
EEO training program within the Department of Defense
provides plaintiff with a potential remedy in the Court of
Federal Claims.

Part 51 does not address remedial action, but an EEO
training program. Although plaintiff argues a violation of the
"Equal Employment Opportunity Program,” plaintiff does not
cite, for example, to Title VII of the Civil Rights Act of 1964,
as amended by the Equal Employment Opportunity Act of
1972, 42 U.S.C. § 2000e-16 (1994). Title VII prohibits the
federal government from acts of discrimmation. Nor does
Title VII apply to military personnel.”” See Canonica v.
United States, 41 Fed. Cl. 516, 522-23 (1998) (Title VII does
not apply to military personnel, citing Roper v. Department of
Army, 832 F.2d 247, 247-48 (2d Cir. 1987) and Gonzalez v.
Department of the Army, 718 F.2d 926, 927-29 (9th Cir.
1983)); Hodge v. Dalton, 107 F.3d 705, 707-08, 712 io"
Cir.) (Equal Employment Opportunity Commission
regulations, at 29 C.F.R. § 1614.103(d)(1), mterpret Title VI
as not applying to complaints of discrimination by military
members), cert. denied, 522 U.S. 815, 139 L. Ed. 2d 25, 118

27 See Miller v. United States, 42 F.3d 297, 301 (Sth Cir.
1995) ("[A] cadet in the Military or Naval academies has always been
considered to be a member of the military forces of the United States. . .

“) (quoting Travis v. United States, 137 Ct. Cl. 148, 152, 146 F. Supp.
847, 850 (1956)).

58a

S. Ct. 62 (1997). As stated by the Supreme Court, "the
special status of the military has required, the Constitution
contemplated, Congress has created and this Court has long
recognized two systems of justice, to some extent paralle'
one for civilians and one for military personnel." Chappell v.
Wallace, 462 U.S. 296, 303-04, 76 L. Ed. 2d 586, 103S. Ct.
2362 (1983) (citing Burns v. Wilson, 346 U.S. 137, 140, 97
L. Ed. 1508, 73 S. Ct. 1045 (1953)).

Furthermore, even if Title VII did apply to military
personnel, jurisdiction for such claims lies in federal district
court, not in the Court of Federal Claims. 42 U.S.C. §§
2000e-5(f(3), 2000e-16(c) (1994). See Brown v. Genera]
Services Administration, 425 U.S. 820, 825, 832, 48 L. Ed.
2d 402, 96 S. Ct. 1961 (1976) (Titie VII provides for a civil
action in federal district court); Mitchell v. United States, 44
Fed. CL 437, 439 (1999) (judicial review of a federal!
employee's Title VII claim is m federal district court, and not
in the United States Court of Federal Claims); Canonica v.
United States, 41 Fed. Cl. at 523 (Title VII jurisdiction rests
exclusively with federal district courts). Had plaintiff based
his claim on Title VII, the count would have been dismssed
for lack of jurisdiction. However, plamtiff pled, and failed to
demonstrate a basis for recovery, under the military's EEO
Education and Training Program. Therefore, count five of
the complaint ss dismissed for failure to state a claim upon
which relief can be granted.

Th ati

In count four of the complaint, the plaintiff alleges a
violation by the Navy of the Rehabilitation Act of 1973, 29
U.S.C. § 794 (1988), as amended, for failure to reasonably
accommodate plaintiffs disability and permit the plamtiff to
continue his studies at the Naval Academy. The Department

59a

of Defense has published regulations implementing the
Rehabilitation Act, at 32 C.F.R. Part 56 (1988). The purpose
of the regulations was to prohibit discrimination, based on
handicap, in programs and activities conducted by the
Department of Defense. In a 1985 case, the United States
Court of Appeals for the Eleventh Circuit observed that 32
C.F.R. § 56.7 contained "an extensive and exhaustive list of
Department of Defense activities subject to the Rehabilitation
Act. This list, however, omits mention of any program
related to the procurement of military personnel” Smith v.
Christian, 763 F.2d 1322, 1325 (11th Cir. 1985). The United
States Court of Appeals for the Sixth Circuit, in Coffman v.
Michigan, agreed with the Eleventh Circutt that the rationale
of courts refusing to extend the protections afforded to
civilian members of military departments under Title VII to
uniformed members of the armed forces was equally
applicable to the Rehabilitation Act, and that "claims under
the Rehabilitation Act may not be asserted by uniformed
members of the armed forces.” Coffman v. Michigan, 120
F.3d 57, 59 (6th Cir. 1997) (citing Doe v. Garrett, 903 F.2d
1455, 1458-62 (11th Cir. 1990), cert. denied, 499 U.S. 904,
113 L. Ed. 2d 213, 111 S. Ct. 1102 (1991)). See also
Leistiko v. Stone, 134 F.3d 817, 820-21 (6th Cir.), reh'g
denied (1998).

Plaintiff, in response, argues that this military
exception to the applicability of the Rehabilitation Act does
not apply to midshipmen at the Naval Academy, cifing a
United States Supreme Court decision. Plaintiff argues
that:

In Lane v, Pena, 518 U.S. 187, 135 L.
Ed. 2d 486, 116 S. Ct. 2092 (1996), the

Department of Transportation was held to be
required to accommodate and reinstate a

60a

midshipman at the Merchant Marine Academy
who suffered from diabetes. The Secretary of
Transportation argued that because
Midshipman Lane had diabetes, it was
required that he be dismissed from the
Academy because he would not meet
commussioning standards of the Department of
Defense. The Court rejected the Academy's
argument, finding that although Lane suffered
from diabetes, the law required that his
condition should reasonably be accommodated
by the Merchant Marine Academy. Similarly,
here, plaintiffs medical condition should
reasonably have been accommodated but it
was not. Plaintiffs condition could easily have
been accommodated by allowing plaintiff to
subssst at home or elsewhere until he had
recuperated, and then allowing him to return
to the U.S. Naval Academy, graduate, and be
commussioned.

This Court should therefore find that

the Rehabilitation Act of 1973 applies to
plaintiff, and that the act was violated.

A closer reading of Lane v. Pena, however, reveals

that the case does not support plaintiffs position. The
Academy at issue in Lane v. Pena was the Merchant Marine
Academy, which is organized under the Maritime
Adminstration, within the United States Department of
Transportation. The Merchant Marine Academy trains cadets
to serve as commercial merchant marine officers, and also as
commissioned officers in the armed forces. Lane v. Pena, 867
F. Supp. 1050, 1054 (D.D.C. 1994). Cadets at the Merchant
Marine Academy agreed to serve as merchant marme officers,

6la

as employees of the United States maritime industry, Or as
commissioned officers on active duty in the armed forces, and
also to apply for appointment as commussioned officers in the
Naval Reserve, the Merchant Marine Reserve, the Coast
Guard Reserve, or any armed forces reserve unit. Id. at 1057.
Although diabetes was physically disqualifying for the Navy,
the United States Coast Guard granted merchant marine
licenses to persons, like James Lane, who qualified for a
waiver by demonstrating that his diabetes was under control
Id. at 1055, 1056, 1067.

The federal district court in Lane v. Pena determmed
that, under the plain language of the Maritime Education and
Training Act of 1980, 46 U.S.C. App. § 1295 (1988), cadets
were required to qualify for a license as an officer in the
merchant marine, and also to apply for, and, if tendered,
accept, a commission in the armed forces reserve. Id, at
1060. The federal district court distinguished the Naval
Academy from the Merchant Marine Academy: "It is
undisputed that the Annapolis Acadenty and West Point serve
only a military purpose. In contrast, Congress charged the
(Merchant Marine Academy] with a dual purpose and,
accordingly, gave cadets a choice of where to serve their
active duty after graduation.” Id. at 1062. The federal district
court concluded that cadets must qualify for merchant marine
licenses. but not necessarily for a commission in the armed
forces. Id. at 1066. "The Court finds that meeting physical
requirements for commissioning in the naval reserve is not
an essential program requirement.” Id. at 1072. In the case
before this court, plaintiff faced the physical qualification
requirements of the Navy, not of the Merchant Marine, and is
covered by the military exception to the applicability of the
Rehabilitation Act, which this court adopts.

The federal district court not only ordered James Lane

62a

readmitted to the Merchant Marine Academy, but also
awarded compensatory damages for the violation of the
Rehabilitation Act. Before the United States Supreme Court,
however, the government argued that the United States was
protected against a damages claim by sovereign immunity.
Lane v. Pena, 518 U.S. 187, 190, 135 L. Ed. 2d 486, 116S.
Ct. 2092 (1996). The government's view prevailed. The
Supreme Court restated settled principles for the waiver of
sovereign Immunity:

A waiver of the Federal Government's
sovereign immunity must be unequivocally
expressed in statutory text, and will not be
implied. Moreover, a waiver of the
Government's sovereign immunity will be
strictly construed, in terms of its scope, in
favor of the sovereign. .. . A statute's
legislative history cannot supply a waiver that
does not appear clearly in any statutory text;
"the ‘unequivocal expression’ of elimination of
sovereign immunity that we insist upon is an
expression in statutory tcxt.” { United States

v. Nordic Village, Inc., 503 U.S. 30, 37, 117
L. Ed. 2d 181, 112 S. Ct. 1011 (1992)}.

Lane v. Pena, 518 U.S. at 192 (citations omitted). The
Rehabilitation Act does not explicitly waive the government's
immunity from monetary damages. Id. at 196. The Supreme
Court analogized the Rehabilitation Act to the Administrative
Procedure Act, the latter providing for "'an action in a court
of the United States seeking relief other than money damages
...." Id. (citing 5 U.S.C. § 702 (emphasis in original)). For
claims founded on a statute to be successful in the United
States Court of Federal Claims, the provisions relied upon
must contain language which "can fairly be interpreted as

63a

mandating compensation by the Federal Government for the
damages sustained.” United States v. Testan, 424 U.S. 392,
400, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1976) (quoting
Eastport Steamship Comp. v. United States, 178 Ct. Cl. 599,
607, 372 F.2d 1002, 1009 (1967)). The Supreme Court in
Lane v. Pena has instructed that the Rehabilitation Act 1s not
a money-mandating statute. If plaintiff were relying
exclusively on the Rehabilitation Act for the requisite
money-mandating statute to proceed in this court, the case
would be dismissed. Since other money-mandating statutes
were identified earlier, the Rehabilitation Act is not

needed to serve that function.

Moreover, as discussed above regarding Title VII

EEO claims, claims under the Rehabilitation Act are required
by statute to be brought in federal district court. See 29
U.S.C. § 794a(aX(1) (1994) (incorporating the remedies,
procedures, and rights set forth in the Civil Rights Act of
1964, specifically including 42 U.S.C. §§ 2000e-5( £3) and
2000e-16(c)); Mitchell v. United States, 44 Fed. Cl. 437, 439
(1999) (citing Hadley v. Dept. of the Navy, 229 Ct. Cl. 591,
1981 WL 22067, at *2 (1981) (the United States Court of
Claims is without jurisdiction to review Rehabilitation Act
claims)). Therefore, count four of the complaint, alleging a
violation of the Rehabilitation Act, is dismissed for lack of
jurisdiction in the United States Court of Federal Claims.
Alternatively, count four also is dismissed for failure to state a
claim upon which relief can be granted, since the
Rehabilitation Act, as noted above, is not applicable to
military personnel.

Due Process

Count III of the plaintiff's complaint alleges that

The actions of the defendant
complained of above violated Title 10, U.S.
Code Section 1201, et seq., entitled
"Retirement or Separation for Physical
Disability" and Department of Defense and
U.S. Navy directives, rules, and regulations,
which provide, inter alia, that members on
active duty in the military service are entitled
to a formal hearing to determine discharge,
separation, or retirement on the basis of
Physical Disability, with the right to counsel
and aright to be heard, and a determination
made by a Physical Disability Evaluation
Board (PEB) and other officials on the extent
and degree of any disability, the extent to
which any disability interferes with active duty
military service, and whether any disability is
temporary or permanent.

Although a violation of 10 U.S.C. § 1201, et seq. (1988) is
alleged, plaintiff also acknowledged, in both Count VI of the
complaint and in his brief accompanying his motion for
summary judgment, that the same cited statutory program for
"Retirement or Separation for Physical Disability" in Title 10,
contains, at section 1217, the following pertinent exception:
"This chapter does not apply to cadets at the United States
Military Academy, the United States Air Force Academy, or
the Coast Guard Academy, or to midshipmen of the Navy."
10 U.S.C. § 1217 (1988). Acknowledging this exception,
plaintiff's position is that the Retirement or Separation for
Physical Disability provisions of Title 10 should apply to
midshipmen, such as himself, and that the statutory exclusion
found at section 1217 for service academy cadets is
unconstitutional.

65a

The Federal Circuit has stated that this court does not
possess jurisdiction over the particular type of type of
constitutional claim plaintiff alleges if standing alone. In

i , for example, the Federal Circuit
addressed jurisdiction:

First, the constitutional claims. His
complaint included counts alleging violation of
his rights under the Due Process Clauses of
the Fifth and Fourteenth Amendments, the
Equal Protection Clause of the Fourteenth
Amendment, and the doctrine of separation of
powers. None of these is a sufficient basis for
jurisdiction because they do not mandate
payment of money by the government. See
Carruth v. United States, 627 F.2d 1068,
1081, 224 Ct. CL 422 (1980) (no jurisdiction
based on Fifth Amendment Due Process or
Equal Protection) . . . -

50 F.3d 1025, 1028 (Fed. Cir.
1995). See also Inupiat Community of the Arctic Slope v.
United States, 230 Ct. Cl. 647, 662, 680 F.2d 122, 132, cert.
denied, 459 U.S. 969, 74 L. Ed. 2d 281, 103 S. Ct. 299
(1982); Walker v. United States, 40 Fed. Cl 666, 671 (1998);
Gilchrist v. United States, 33 Fed. Cl. 791, 806 & n.16
(1995). However, the Federal Circuit also has pointed out
that "the presence of a constitutional issue does not erase the
jurisdiction of the Court of Federal Claims based on a
properly brought claim under the Tucker Act, or bar the court
from considering the constitutional issue in the course of
determining whether the discharge was wrongful." Holley v.
United States, 124 F.3d 1462, 1466 (Fed. Cir.), reh'g
denied (1997). The Federal Circuit had determined that
Lieutenant Holley pled a monetary claim that satisfied the

66a

jurisdictional requirements of the Tucker Act, and proceeded
to consider the alleged constitutional violations. Id. In the
present case, the plaintiff pled that his discharge was improper
and that he was entitled to a continuation of pay and
allowances. Under the reasoning of Holley, the court may
consider the claim that plaintiff's discharge lacked due

process.

Plaintiff first argues that "one does not surrender his
or her constitutional rights upon entering the military,"
quoting Meinhold v. Uni
123 F.3d 1275, app. 1286 (9th Cir.) (district court's
memorandum opinion), opinion amended, 131 F.3d 842 (9th
Cir. 1997) (quoting Beller v. Middendorf, 632 F.2d 788, 810

(9th Cir. 1980), cert. denied sub nom. Beller v, Lehman, 452
U.S. 905, 69 L. Ed. 2d 405, 101 S. Ct. 3030 (1981)).

However, the entire quotation from the source of the quoted
proposition, Bellar v. Middendorf, provides a broader context
when all of the court's words are read: "While it is clear that
one does not surrender his or her constitutional rights upon
entering the military, the Supreme Court has repeatedly held
that constitutional rights must be viewed in light of the special
circumstances and needs of the armed forces. . . . Regulations
which might infringe constitutional rights in other contexts
may survive scrutiny because of military necessities." Beller
v. Middendorf, id. 632 F.2d at 810-811 (citations omitted).

Plaintiff also cites cases from the United States Court
of Appeals for the Second Circuit, which, however, involved
the dismissal of cadets from academies for reasons other than
physical disqualification. For example, in Andrews v.
Knowlton, cadets in two separate actions, arising out of
different circumstances, challenged their impending
expulsions from the United States Military Academy.
Andrews v. Knowlton, 509 F.2d 898, 900 (2d Cir.), cert.

67a

denied, 423 U.S. 873, 46 L. Ed. 2d 105, 96 S. Ct. 142
(1975). Each cadet had a hearing before a board of officers.
One cadet was found guilty of violating the Academy's Honor
Code by cheating; the other cadet was found guilty of
violating the Honor Code by lying. Id. at 903. The Second
Circuit upheld the expulsions, noting that each cadet was
afforded a hearing before a board of officers, were
represented by counsel, were allowed to call and
cross-examine witnesses, and were afforded the right to offer
and object to the introduction of any evidence. Id. at 905.

The holdings of Wasson [v. Trowbridge, 382
F.2d 807 (2d Cir. 1967)] and Hagopian [v.
Knowlton, 470 F.2d 201 (2d Cir. 1972)],
while they dealt with dismissal proceedings
because of excessive demerits, are equally
controlling here where appellants were
separated from the Academy for violation of
the Honor Code. From their teaching, it is
clear that before a cadet can properly be
dismissed or separated from his service
academy, he must have a hearing, be apprised
of the specific charges against him, and be
given an adequate opportunity to present his
defense both from the point of view of time
and the use of witnesses and other evidence.
A military proceeding conducted within these
bounds of procedural due process would be
proper and immune from constitutional

Id. at 905. The cases of Andrews, Wasson, and Hagopian all
involved misconduct, rather than physical disqualification
from an academy. Plaintiff, moreover, failed to cite or discuss
decisions of the United States Court of Appeals for the

68a

Federal Circuit, which are binding precedent on this court. In
Holley v. United States, the Federal Circuit considered
whether the discharge of Lieutenant Holley from the Army
violated constitutional due process. Lieutenant Holley was a
recent graduate of the United States Military Academy. He
was given a general discharge (under honorable conditions)
without a hearing before a board of officers. The reason
stated on the discharge certificate was "Misconduct Moral or
Professional Dereliction or in Interest of National Security."
Holley v. United States, 124 F.3d at 1463-65. He was given
notice and an opportunity to respond to allegations of illegal
drug abuse, and in response submitted a statement to the
discharge authority. Id. at 1464. Lieutenant Holley was a
probationary officer, with less than five years of service. An
Army regulation provided that probationary officers may be
discharged without a hearing before a board of officers. Id. at
1469. In upholding the discharge,

the Federal Circuit stated that:

The threshold question is whether a general
discharge under honorable conditions may be
implemented for probationary officers solely
with written notice and an opportunity to
respond, but without a full adversary hearing,
without violating the minimum process that is
due under the circumstances.

Precedent teaches that mininmm due
process is not violated by the procedure
followed in discharging Mr. Holley. See
Department of Navy v. Egan, 484 U.S. 518,
108 S. Ct. 818, 98 L. Ed. 2d 918 (1988)
(minimum due process is met for employee
discharge in security context by written notice
and a pre-termination opportunity to respond).

69a

Id, at 1469-70. Unlike Lieutenant Holley, whose general
discharge as a result of allegations of illegal drug abuse was
effected without a hearing, plaintiff in the present case was
not defending against charges of misconduct and received an
honorable discharge. Plaintiff received the same notice and
opportunity to respond that was approved by the Federal
Circuit in Holley.

Due process is a function of property and liberty
interests. In a recent Court of Federal Claims case, the court
stated:

Plaintiff asserts that the case review
subcommittee took away both a property
interest and a liberty interest without
providing him due process. In Canonica v.
United States, 41 Fed. Cl. 516 (1998), the
court recently reviewed the due process rights
of military personnel:

Persons are entitled to due
process before they can be
deprived of property or liberty.
Courts have held that an
enlisted member of the armed
forces does not have a property
interest in his employment
because he may be discharged
"as prescribed by the
Secretary” of his service.
However, courts have held that
an enlisted member of the
armed forces has a liberty
interest in his employment.

70a

Se

This liberty interest prevents
the military from discharging a
service member without due
process - but only in cases
where a "stigma" would attach
to the discharge.

Id. at 524 (citations omitted). These
principles also apply to officers. Compare
Paskert v. United States, 20 Cl. Ct. 65, 77
(1990) (case involving discharged Army
captain; court held that "service members have
no constitutional rights to remain on active
duty, and their rights are defined by the
applicable statutes").

Milas v. United States, 42 Fed. Cl. 704, 711 (Fed. Cir.), affd,
217 F.3d 854 (Fed. Cir. 1999) (table). Similarly, plaintiff
cannot demonstrate a property interest in either the Naval
Academy or military service. See Stone v. Federal Deposit
Ins. Corp., 179 F.3d 1368, 1374 (Fed. Cir. 1999) "To have a
property interest in a benefit, a person clearly must have more
than an abstract need or desire for it. He must have more

~ than a unilateral expectation of it. He must, instead, have a
legitimate claim of entitlement to it.") (quoting Board of
Regents of State Colleges v. Roth, 408 U.S. 564, 577, 33 L.
Ed. 2d 548, 92 S. Ct. 2701 (1972)); Doe v. Garrett, 903 F.2d
1455, 1462 (11th Cir. 1990) ("It is well established that a
military officer's expectation of continued military
employment does not rise to the level of a property interest
unkess it is rooted in some statute, regulation, or contract. . . .
Courts have rejected claimed property interests even in cases
involving outright discharge from career positions in the
military.") (citations omitted)).

Tila

ee

Nor has plaintiff raised-a liberty interest through
demonstrating that any stigma attached to the receipt of an
honorable discharge based on physical disqualification. Cf

46 Fed. Cl. 69, 77 (2000) (stigma
attaches when the discharge certificate reflects derogatory
circumstances) (citing Keefv. United States, 185 Ct. Cl. 454,

467, 1968 WL 9154 (1968)); Milas v. United States, 42 Fed.
CL. at 708, 712 (the requirements of due process were

satisfied where plaintiff was afforded a hearing before a board
of officers, based on stigmatizing allegations of sexual abuse
of his son and a proposed discharge under other than
honorable conditions). Plaintiff has failed to demonstrate that
10 U.S.C. § 1217, which exempts academy cadets from the
Retirement or Separation for Physical Disability provisions of
Title 10, is unconstitutional. Plaintiff was afforded due
process through notice and an opportunity to respond, and
plaintiff chose to submit a statement, which was considered
by the discharge authority. Both count three and count six of
the complaint are dismissed for failure to state a claim upon
which relief can be granted.

Summary Judgment

In addition to the defendant's motion to dismiss, the
plaintiff and the defendant have filed cross-motions for
summary judgment under Rule 56 of the Rules of the United
States Court of Federal Claims. Summary judgment in this
court should be granted only when there is no genuine ssue
as to any material fact and the moving party is entitled to
judgment as a matter of law. RCFC 56 is patterned on Rule
56 of the Federal Rules of Civil Procedure and is similar both
in language and effect. Both rules provide that summary
judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,

72a

show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of
law."

RCFC 56 (c) provides that in order for a motion for
Summary judgment to be granted, the moving party must
demonstrate that there are no genuine issues of material fact
and that the moving party is entitled to judgment as a matter
of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Adickes v.
S. H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90

S. Ct. 1598 (1970); Avenal v. United States, 100 F.3d 933,
936 (Fed. Cir. 1996), reh’g denied (1997); Creppel v, United
States, 41 F.3d 627, 630-31 (Fed. Cir. 1994); Meyers v.

Asics Corp.., 974 F.2d 1304, 1306 (Fed. Cir. 1992); Lima
] Inc, V E 'B

Ass'n Plan Trust v. United States, 20 Cl Ct. 674, 679 (1990),
affd, 944 F.2d 885 (Fed. Cir. 1991). A fact is material if it
will make a difference in the result of a case. Curtis v. United
States, 144 Ct. Cl. 194, 199, 168 F. Supp. 213, 216 (1958),
cert. denied, 361 U.S. 843, 4 L. Ed. 2d 81, 80S. Ct. 94
(1959). Summa

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0999%3A2. Public record. Not legal advice.