James Daniel FULBRIGHT, Plaintiff, v. John M. MCHUGH, Secretary, United States Army, Defendant.
Case No. 1:12-cv-01506 (CRC)
United States District Court, District of Columbia.
Signed September 9, 2014
CHRISTOPHER R. COOPER, United States District Judge
[REDACTED] Even if, as plaintiff alleges, that “there were periods of time when she did not receive assignments” and that she “contacted supervisors via e-mail and by going door-to-door asking for work,” Pl.‘s Opp‘n to Mot. Summ. J. 33, defendant has presented factual records showing that this may result through non-discriminatory circumstances to any employee. “[Plaintiff] was not the only employee who sought additional assignments. Whether employees were busy or could take on additional work was often a subject of discussion in managerial meetings. Att. 23, pp. 35-36, 38; Burke-Sanow Notebooks (Att.24), pp. 611-12, 614, 618, 624, 647-48, 654, 656, 663, [6]71, 673, 688-89, 704, 746, 775, 804, 819.” Def.‘s Mot. Summ. J. 43. It is common sense that the quantity of work available in an office fluctuates in response to various changes in the economy or even the season, see also Def.‘s Ex. 23 at 19, ECF No. 42-23 (Burke-Sanow testifying that “I personally have to have work to give work.“), and normally “[a]n employer has discretion to assign work to equally qualified employees so long as ‘the decision is not based upon unlawful criteria,” Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1557 (D.C.Cir.1997) (quoting Tex. Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981)). All considered, the D.C. Circuit‘s guidance in Jones is equally applicable here where plaintiff does not provide evidence that her situation was different than that of her coworkers. Plaintiff is unable to establish that she would have received more work had there been no underlying discrimination dispute, see Nassar, 133 S.Ct. at 2533, and also presents no evidence corroborating her claim that the time period when she allegedly received less work was related to any protected EEO action. Plaintiff therefore fails to meet her burden in proving that any lapse in work was caused by her following through with the EEO process. Because plaintiff fails to carry her burden of establishing a prima facie case and refuting defendant‘s evidence as pretextual, the Court cannot conclude that any reduction in plaintiff‘s work was retaliatory. Therefore, the Court will grant defendant‘s request for summary judgment insofar as it relates to count III of plaintiff‘s complaint.
CONCLUSION
For the aforementioned reasons, defendant‘s motion to amend its answer will be GRANTED, and plaintiff‘s request for additional discovery and attorneys’ fees will be DENIED. Further, defendant‘s motion for summary judgment will be GRANTED. This case will be DISMISSED with prejudice.
A separate order will be issued alongside this opinion reflecting the relief contemplated herein.
Wayne Holden Williams, John J. Gowel, U.S. Attorney‘s Office, Washington, DC, for Defendant.
CHRISTOPHER R. COOPER, United States District Judge
For 25 years, plaintiff James Fulbright has sought retroactive disability retirement from the Army based on injuries he suffered while in service. In this suit under the Administrative Procedures Act (“APA“), he challenges a 2009 decision by the Army Board for Correction of Military Records denying, for the second time, his request for disability retirement status. The Secretary of the Army has moved to dismiss and both parties have moved for summary judgment. In his motion to dismiss, the Secretary argues that a prior ruling by the Court of Federal Claims (“CFC“) that Fulbright‘s claims were barred by the Tucker Act‘s statute of limitations precludes his APA claims here; that Fulbright‘s claims are separately barred by the APA‘s statute of limitations; and that Fulbright may not sue in this Court under the APA because he could have received the relief he seeks in his Tucker Act case before the CFC. The Court will deny the Secretary‘s motion to dismiss. Fulbright‘s APA suit is not precluded by the CFC‘s prior decision because the Tucker Act‘s statute of limitations operates differently than the APA‘s, and the latter had not expired when Fulbright brought this suit. Moreover, the CFC could not have provided Fulbright the relief he seeks in this action because he solely requests injunctive relief, which the CFC can only grant ancillary to monetary damages.
The Court also concludes, however, that the board‘s decision denying Fulbright‘s request for disability benefits was adequately reasoned and based on sufficient evidence. It will, therefore, grant the Secretary‘s motion for summary judgment and deny Fulbright‘s.
I. Background
A. Regulatory Background
[REDACTED] Military disability retirement entitles former servicemembers to receive increased retirement pay and other enhanced benefits relative to standard retirement. See Smalls v. United States, 471 F.3d 186, 190 (D.C.Cir.2006). Qualifying for disability retirement, however, is no small task. Military regulations establish a complex web of procedures for obtaining disability benefits after leaving active service. While the bulk of these regulations need not be discussed here, a brief summary of the pertinent rules may aid in understanding the facts and legal issues involved in this case.
Obtaining disability retirement from the Army, where Fulbright served, begins with an examination of the soldier by an Army medical examiner. See
Among several avenues of appeal open to a servicemember throughout this extensive process, he may, within three years of the relevant decision, request that the Army Board for Correction of Military Records (“ABCMR” or “board“) review an adverse disability retirement determination.
B. Factual Background
James Fulbright joined the United States Army as an infantryman in 1974 and went on to serve in the military police branch, first as a second lieutenant and eventually as a captain. Administrative Record (“AR“) 193-95, 202. Our story begins in 1978, when Fulbright fractured his right ankle and sprained his left ankle and knee in a parachuting accident. Id. at 187. He aggravated his left knee sprain the next year. Id. As a result of these injuries, Fulbright was placed on restricted duty and prohibited from parachute jumping and running more than half a mile. Id. at 139.
Over a decade later, in 1989, Fulbright was passed over for promotion to major for a second time. Id. at 199. The decision not to promote Fulbright was apparently unrelated to his injuries; the Army based the decision on his overall performance and the limited slots available. Id. Because Army regulations require release from active service after missing promotion twice, Fulbright was honorably discharged from active duty “not by reason of physical disability” and transferred to inactive ready reserve status later that year. Id. at 197-99.
As required by regulation, Fulbright underwent an Army medical exam before his release from active duty. Id. at 140-41. He was diagnosed with lower back pain, chondromalacia patella (inflammation of the knee), a history of traumatic separation in both shoulders, and left foot trauma. Id. The examiners pronounced Fulbright physically fit, albeit with some limitations to his day-to-day activities. Id.; see also
The same year, Fulbright requested that the Army Reserve Personnel Center initiate a MEB to transfer him from the inactive ready reserve group and designate him as medically retired. AR 93-95. The Army declined his request for a MEB, but, in contrast to his 1989 separation examination that found him fit for active duty, the Army agreed that Fulbright did not meet the standards for retention in the inactive reserves due to the injuries to his right ankle. Id. at 102. Fulbright apparently was not given the option of disability retirement, however, and instead elected to transfer to the retired reserves while continuing to maintain that he should be eligible for disability retirement. Id. at 96.
In 1992, Fulbright applied to the ABCMR for a record correction, arguing that his 1989 separation medical examination and subsequent VA diagnosis demonstrated that he should have received medical disability retirement when he was released from active duty. Id. at 183. The ABCMR denied his request, finding that Fulbright had been physically fit for duty at the time of his separation from active duty service. The board based its finding on the 1989 separation examination—which, as previously noted, found Fulbright fit for service—as well as a letter to the board from the Office of the Surgeon General indicating that Fulbright “met retention standards at the time of discharge and an MEB was not warranted.” Id. at 183-84, 187.3 The board concluded further that the VA‘s 50 percent disability rating was not binding on the ABCMR because the VA does not assess a servicemember‘s fitness for duty when determining eligibility for its separate system of retirement benefits. Id. at 186. The ABCMR accordingly found that there was no evidence to support Fulbright‘s contention that his injuries prevented him from performing his duties when relieved from active duty in 1989. Id. at 185.
After first petitioning the Army Human Resources Command, Fulbright found himself back before the ABCMR fifteen years later, in 2008. He argued that the board‘s 1992 decision denying his request for an MEB had been erroneous and that he should have been promoted to major from the inactive reserves in 1990. Id. at 76. Waiving its three-year statute of limitations in the interest of justice, the ABCMR agreed with Fulbright that he should have been awarded a promotion to major while in the reserve group. Id. at 77. It did so primarily because Human Resources Command found that Fulbright was not promoted to major in 1990 only because of an administrative error: The Office of Promotions had not received Fulbright‘s 1989 medical examination that showed him fit for duty. Id. at 87-88. As to his request for a MEB, however, the ABCMR found that Fulbright had failed to provide evidence demonstrating that he was disabled under army regulations, citing the same reasons it gave in its 1993 decision. Id.
Fulbright requested reconsideration of the ABCMR‘s decision, arguing again that the VA‘s 1990 disability rating is evidence that he should have received disability re-
Fulbright then brought suit under the Tucker Act,
Fulbright proceeded to bring suit in this Court under the APA against John M. McHugh, the Secretary of the Army, arguing that the ABCMR‘s 2009 decisions contained manifest error because its conclusions were contradicted by record evidence. Compl. ¶¶ 22-24. The Secretary moved to dismiss, arguing that Fulbright‘s claims under the APA are barred by the APA‘s statute of limitations and the prior decision of the CFC. Def.‘s Mem. in Supp. of Mot. to Dismiss at 1-2. In lieu of addressing the motion at that time, the Court previously handling the case ordered briefing on the merits, and the parties then cross-moved for summary judgment. The case was transferred to this Court during the course of summary judgment briefing.
II. Standard of Review
A. Dismissal for Lack of Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies outside this limited jurisdiction[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). It is the plaintiff‘s burden to establish that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Because subject matter jurisdiction focuses on the Court‘s power to hear a claim, the Court must give the plaintiff‘s
B. Dismissal for Failure to State a Claim
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff‘s factual allegations “must be enough to raise a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555-56 (citations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. In deciding a motion to dismiss under
C. Summary Judgment under the APA
[REDACTED] In a motion for summary judgment under the APA, “the standard set forth in
A. The Secretary‘s Motion to Dismiss
The Secretary moves to dismiss on three grounds: (1) issue preclusion applies because the CFC has already determined that Fulbright‘s claims are barred by the statute of limitations under the Tucker Act; (2) regardless of the CFC decision, Fulbright‘s claims are barred by the APA‘s statute of limitations; and (3) Fulbright‘s claims are alternatively barred because he could have received a full and adequate remedy in his suit before the CFC. The Court discusses each ground below.
i. Issue Preclusion
[REDACTED] “Issue preclusion . . . bars ‘successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,’ even if the issue recurs in the context of a different claim.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (quoting New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001)). Issue preclusion requires that:
“[1], the same issue now being raised must have been contested by the parties and submitted for judicial determination in the prior case[; 2], the issue must have been actually and necessarily determined by a court of competent jurisdiction in that prior case [; and] [3], preclusion in the second case must not work a basic unfairness to the party bound by the first determination.”
Martin v. DOJ, 488 F.3d 446, 454 (D.C.Cir.2007) (quoting Yamaha Corp. of Amer. v. United States, 961 F.2d 245, 254 (D.C.Cir.1992)).
[REDACTED] The Secretary argues that the CFC resolved the issues before this Court by construing Fulbright‘s 2008 ABCMR application for disability retirement benefits as a request for reconsideration of the ABCMR‘s 1993 decision, rather than a new action, and thus determining that his claim was barred by the Tucker Act‘s six-year statute of limitations. Def.‘s Mem. in Supp. of Mot. to Dismiss at 7. The CFC‘s determinations, however, do not have preclusive effect in this proceeding because whether the Tucker Act‘s statute of limitations has expired is a different question of law than whether the APA‘s statute of limitations has expired.
The Tucker Act does not itself create substantive rights but instead provides a cause of action for suits for money damages against the United States based upon, among other things, an act of Congress.
The APA‘s statute of limitations operates differently than the Tucker Act‘s. As discussed more fully below, the APA permits an individual to challenge final agency action, and its statute of limitations begins to run from the date of that final action. Impro Prods., Inc. v. Block, 722 F.2d 845, 850-51 (D.C.Cir.1983). In Havens v. Mabus, 759 F.3d 91 (D.C.Cir.2014), the D.C. Circuit recently held that an APA suit challenging a military corrections board decision was not precluded by a prior CFC determination that the Tucker Act statute of limitations barred adjudication. Id. at 96-100. Although Havens involved claim preclusion rather than issue preclusion, its reasoning applies equally to the Secretary‘s issue preclusion argument here. See, e.g., Taylor, 553 U.S. at 892. The CFC, moreover, did not analyze when the APA statute of limitations began to run in Fulbright‘s case. Fulbright I, 97 Fed.Cl. at 231. Indeed, it could not have done so because it lacks jurisdiction to review APA challenges. Id. Because the two statutes’ limitations provisions have different standards and the CFC did not address the APA‘s limitations provisions, that court‘s ruling has no preclusive effect here.
Nor does the CFC‘s finding that the January 2009 ABCMR decision was a denial of reconsideration rather than a new claim for a record correction have preclusive effect in this matter. The application of the APA‘s statute of limitations, unlike the Tucker Act‘s, does not turn on this distinction. As discussed below, an agency decision on a request for reconsideration may be a new final agency action under the APA and therefore trigger its statute of limitations.
ii. APA Statute of Limitations
[T]wo conditions must be satisfied for agency action to be final: First, the action must mark the consummation of the agency‘s decisionmaking process, it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow[.]
Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citations omitted).
Because the CFC‘s Tucker Act analysis has no preclusive effect on Fulbright‘s APA claims, the Court must determine whether the 2009 ABCMR decision was a final agency action that triggered the APA‘s statute of limitations. The Court does not analyze this issue on a blank slate, as the D.C. Circuit considered a similar issue in Havens. The petitioner in Havens was a retired navy reserve officer who challenged his 1996 discharge in six record correction requests to the Navy‘s corrections board and subsequent suits to the CFC and this Court. 759 F.3d at 92-93. The corrections board‘s first four decisions were held to be outside the APA‘s statute of limita-
[REDACTED] Demonstrating that no good deed goes unpunished, the ABCMR here decided to waive its three-year statute of limitations in the interest of justice and issue a new final decision on Fulbright‘s request for a record correction in January 2009 because it determined that he should have been promoted to major from the reserve group in 1990. AR 74-77. Based on the reasoning of both Havens and Sendra, then, this was a new final agency action that can be challenged under the APA, regardless of whether Fulbright‘s 2008 petition is considered a request for reconsideration of the 1993 denial or a new request for a record correction. Moreover, the ABCMR‘s 2009 decision passes both elements of the final agency action test: it was the Army‘s final decision on Fulbright‘s 2008 request, and it produced a change in legal rights as it required that the Army promote Fulbright to major.4 Thus, Fulbright‘s claims here are not barred by the APA‘s statute of limitations.
iii. Full and Adequate Remedy
[REDACTED] A plaintiff may not bring suit under the APA if he can achieve identical relief under a different statute because only “final agency action for which there is no other adequate remedy in a court [is] subject to judicial review” under the APA.
Fulbright‘s complaint requests injunctive and declaratory relief that he is entitled to a MEB and retroactive disability retirement from the Army; he does not seek monetary damages. Compl. ¶¶ 25-30. The Secretary contends that because Fulbright could have received the relief he seeks through a Tucker Act suit in the CFC, he cannot bring an APA claim here. Def.‘s Mem. in Supp. of Mot. to Dismiss at 11-13. The Secretary advances two supporting arguments: that the actual relief Fulbright seeks is monetary—the record
[REDACTED] As to the first argument, ” ‘as long as [a] complaint only requests non-monetary relief that has considerable value independent of any future potential for monetary relief [,]” a plaintiff need not pursue a Tucker Act claim and may bring suit in this Court under the APA. Tootle v. Secretary of the Navy, 446 F.3d 167, 176 (D.C.Cir.2006) (quoting Kidwell v. Dep‘t of the Army, Bd. for Correction of Military Records, 56 F.3d 279, 284 (D.C.Cir.1995)). As the D.C. Circuit explained in Havens, a request for a record correction has independent value other than the monetary benefits a disability designation provides. See Havens, 759 F.3d at 97 n. 11; Smalls, 471 F.3d at 190 (outlining benefits apart from disability pay that flow from an Army medical retirement). Fulbright therefore may bring suit under the APA.
[REDACTED] As to the Secretary‘s second argument, the CFC could not provide Fulbright‘s requested relief here because it cannot entertain suits for declaratory or injunctive relief, except to the extent such relief is necessary “[t]o provide an entire remedy and to complete the relief afforded by the judgment [for money damages].”
[REDACTED] Similarly, the CFC‘s decision not to transfer Fulbright‘s APA claims to this Court because the CFC could have afforded him full relief, see Fulbright I, 97 Fed. Cl. at 231, does not have preclusive effect on this Court. Unlike here, Fulbright sought monetary relief in his prior suit, which the CFC could have provided under the Tucker Act. Moreover, the CFC was analyzing whether it could transfer the case under its circuit‘s caselaw on transferring cases, not the “other adequate remedy” limitation on APA claims. Id. Because the CFC was addressing a different legal standard, its decision does not have preclusive effect. See Taylor, 553 U.S. at 892.
B. Summary Judgment under the APA
Having found that the Secretary is not entitled to dismissal of Fulbright‘s complaint, the Court moves to the Secretary‘s motion for summary judgment on Fulbright‘s APA challenge.
[REDACTED] “[W]hile judicial review of an agency‘s actions is generally narrow and subject to a presumption of validity, review of the Board‘s decisions in particular under the APA is ‘unusually deferential.‘” Coe, 968 F.Supp.2d at 240 (quoting Piersall v. Winter, 435 F.3d 319, 324 (D.C.Cir. 2006)). As a military review board, the ABCMR is entitled to greater deference than civilian administrative agencies. Id. (citing Calloway v. Brownlee, 366 F.Supp.2d 43, 53 (D.D.C.2005)). The Court determines whether the ABCMR “permissibly exercised [its] discretion and made a choice that is supported by at
At the outset, the Court must clarify the relief Fulbright requests. The Secretary argues, and Fulbright does not dispute, that Fulbright could not have been placed on the disability retirement list from the reserve group because reserve soldiers not on active duty cannot receive a MEB under
[REDACTED] While terse, the ABCMR‘s determination provided adequate reasoning to uphold the board‘s decision under the extremely deferential standard the Court must apply. The ABCMR examined Fulbright‘s Army and VA medical records and found that he was not entitled to a record correction for a medical disability retirement in 1989 because he had proffered no evidence showing that he was unfit for service at that time. AR 8-10. It concluded that his separation medical examination, where he “was determined not to have any medical limitations[,]” refuted his claims that he was, in fact, unfit for duty. Id. at 8. The board further explained that the Army‘s determination was not inconsistent with Fulbright‘s 50 percent VA disability rating because the VA does not determine medical unfitness for service, which is a necessary requirement for Army disability retirement. Id. at 9. Because the separation medical examination records and the VA disability rating were the only two pieces of evidence put forward by Fulbright, the board‘s decision is fully supported by the evidence before it. The board also adequately explained its reasoning in considering this evidence.
Fulbright further argues that his separation medical examination diagnosed conditions that required mandatory referral to a MEB under Army regulations. Pl.‘s Opp. & Mem. in Supp. of Cross-Mot. for Summ. J. at 14-15. Fulbright was diagnosed with chondromamalacia patella, which is inflammation of the knee. AR 140-41. A soldier suffering from this condition must be referred to a MEB if it causes “more than moderate interference with function.”
Fulbright also argues that the ABCMR “failed to explain why a 50% disability rating by the VA effective in 1989 or a 70% disability rating effective in 1992 is not probative of error by the Army.” Def.‘s Mem. in Supp. of Mot. for Sum. J. at 16. But, as noted above, the ABCMR explained that the VA does not determine whether an individual is fit for continued service in the military before determining whether they are partially or totally disabled. AR 7-9. Army regulations, on the other hand, first require the Army to determine whether the servicemember is unfit for duty.
Lastly, Fulbright asserts that “preponderant evidence shows that Mr. Fulbright was not fit for duty at the time of his separation from active duty in 1989.” Def.‘s Mem. in Supp. of Mot. for Sum. J. at 19 (emphasis in original). But preponderance of the evidence is not the standard this Court applies in reviewing decisions of the ABCMR under the APA. As long as the board‘s determination adequately states the reasons for its decision and was in the realm of reason, this Court must defer to it. E.g., Frizelle, 111 F.3d at 176. Here, the board determined that Fulbright had presented no evidence showing that he was unfit for service at the time of his separation because Army medical examiners had found him fit and the VA‘s disability rating was not to the contrary. This determination was reasonable in light of the evidence before the board, and the Court therefore will defer to the board‘s findings.
IV. Conclusion
For the reasons above, the Court will deny Defendant‘s motion to dismiss, deny Plaintiff‘s cross-motion for summary judgment, and grant Defendant‘s motion for summary judgment. The Court will issue an order consistent with this opinion.
Maria Andrea MEZERHANE DE SCHNAPP, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant.
Civil Action No. 13–1461 (JDB)
United States District Court, District of Columbia.
Signed September 9, 2014