402 F.3d 1167 (Fed. Cir. 2005), 02-5082, Fisher v. United States

Docket Nº:02-5082.
Citation:402 F.3d 1167
Party Name:Frank E. FISHER, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
Case Date:March 09, 2005
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

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402 F.3d 1167 (Fed. Cir. 2005)

Frank E. FISHER, Plaintiff-Appellant,


UNITED STATES, Defendant-Appellee.

No. 02-5082.

United States Court of Appeals, Federal Circuit.

March 9, 2005

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[Copyrighted Material Omitted]

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J. Byron Holcomb, of Bainbridge Island, Washington, argued for plaintiff-appellant.

Monica J. Palko, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were David M. Cohen, Director, and James M. Kinsella, Assistant Director. Of counsel on the brief was Captain Andrew M. Leblanc, United States Air Force, of Arlington, Virginia. Of counsel was Virginia G. Farrier, Attorney, Commercial Litigation Branch.

Before CLEVENGER, Circuit Judge, PLAGER, Senior Circuit Judge, and DYK, Circuit Judge.

Opinion for the court filed by Senior Circuit Judge PLAGER. Additional views filed by Senior Circuit Judge PLAGER, in which Circuit Judges PAULINE NEWMAN and GAJARSA join. 1

PLAGER, Senior Circuit Judge.

This case, brought under the United States Court of Federal Claims' Tucker Act jurisdiction, raises three separate though related issues. First, what must a plaintiff establish regarding the existence of a money-mandating law source in order for the Court of Federal Claims to have subject matter jurisdiction over the case under the Tucker Act? Second, assuming the trial court takes jurisdiction and addresses the merits of the cause, what are the consequences of a failure to prove the elements of the cause of action because the facts of the case do not bring it within the alleged source? And third, even assuming the cause of action is otherwise established, are there matters that are nonjusticiable because of their unique military implications?

The plaintiff in this case, Dr. Frank E. Fisher, a physician retired from the Air Force, filed a complaint in the Court of Federal Claims alleging that while he was on active duty he should have been found unfit for continued service because of a physical disability, and therefore under 10 U.S.C. § 1201 he should have been retired for disability, with appropriate retirement pay. The trial court at the behest of the Government dismissed Dr. Fisher's claim for lack of jurisdiction. The trial court indicated that, even if the court had jurisdiction, the matter was exclusively one for military determination, and thus nonjusticiable. Appeal was timely taken.

We conclude that, in light of the statutes on which the cause was based and the facts alleged, the court erred in dismissing the case. We further conclude that, despite the military origins, under controlling precedent the issue is justiciable. The

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case is remanded to the trial court for further proceedings in accordance with this opinion.


Dr. Frank E. Fisher served as a physician on active duty in the United States Air Force from 1989 to 1996. Thereafter, he served in the United States Air Force Reserves until September 7, 2001, when he was discharged for physical disqualification. While on active duty, Dr. Fisher appeared before three Medical Evaluation Boards (MEBs). The first MEB evaluation took place in May 1994 for Dr. Fisher's complaint of "persistent left shoulder pain." The MEB referred Dr. Fisher's case to an Informal Physical Evaluation Board (IPEB), which determined that his condition did not make him unfit for service. Accordingly, Dr. Fisher continued on active duty.

Dr. Fisher went before a second MEB in September 1995 for "chronic left wrist and hand pain." The MEB again referred the case to an IPEB, which found in October 1995 that Dr. Fisher was unfit for duty and recommended that he be discharged with severance pay and given a 10 percent disability rating. Dr. Fisher disagreed with the IPEB recommendation, alleging that the 10 percent disability rating was too low, and he appealed to a Formal Physical Evaluation Board (FPEB). The FPEB found in November 1995 that Dr. Fisher was "fully capable of performing all of his assigned duties and was doing so routinely." Accordingly, the FPEB found Dr. Fisher fit for duty and recommended that he be returned to duty. Dr. Fisher did not further challenge this recommendation at the time and returned to duty.

At about the same time that the FPEB was considering Dr. Fisher's case, Dr. Fisher was diagnosed with seronegative rheumatoid arthritis. Apparently that diagnosis was not considered by the FPEB during its deliberations.

In June 1996 Dr. Fisher went before a third MEB, which found him fit for continued military service. Dr. Fisher alleges that the third MEB was convened specifically to consider his diagnosis of seronegative rheumatoid arthritis; however, there is no documentation in the record regarding this third MEB. The MEB did not refer Dr. Fisher to an IPEB, and Dr. Fisher did not challenge this MEB's findings.

At the end of 1996, after completion of his active duty service commitment, Dr. Fisher was released from active duty in the normal course and became a member of the Air Force Reserve. 2 During the time he was serving in the Reserves, he applied to the Department of Veterans Affairs (VA) for disability compensation. In March 1997 the VA awarded him a 40 percent service-connected disability rating for rheumatoid arthritis and a 20 percent rating for degenerative joint disease, which, using a combined rating table, established an overall rating of 50 percent. Dr. Fisher later was awarded an additional 10 percent disability rating for depression, which was increased to 30 percent in October 1997.

In December 1999, Dr. Fisher applied to the Air Force Board for Correction of Military Records (AFBCMR), alleging that the various medical boards before which he appeared should not have found him fit for duty and should have granted him a medical discharge. He requested that his records be corrected to show a medical disability based on rheumatoid arthritis

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and that he be discharged with a medical disability as of December 31, 1996, his last day of active duty. The AFBCMR denied Dr. Fisher's claim, determining that he had not demonstrated "the existence of probable material error or injustice."

Following the adverse decision of the AFBCMR, Dr. Fisher filed suit in the Court of Federal Claims. His complaint alleged that the actions of the Secretary of the Air Force and the AFBCMR were contrary to Air Force statutes, rules, and regulations. He asked the court to reinstate him to active duty, place him in disability retirement status effective January 1, 1997, award him medical retirement back pay from that date, and order the correction of his records to reflect such actions.

Dr. Fisher's complaint asserted that jurisdiction in the Court of Federal Claims was founded upon 28 U.S.C. § 1491 (the Tucker Act), 10 U.S.C. § 8011 et seq. (Air Force organizational statutes), 10 U.S.C. § 1201 et seq. (military disability retirement statutes), 10 U.S.C. § 1552 (military correction board enabling statute), and Air Force rules and regulations relating to medical standards and disability retirement. The Government filed a motion to dismiss for lack of jurisdiction.

After oral argument on the issue, the trial court granted the Government's motion. The trial court held that Dr. Fisher's claim was outside the scope of the Tucker Act because any monetary entitlement was dependent upon a declaratory judgment, which the court lacked authority to grant. Fisher v. United States, No. 00-740C (Fed.Cl. Jan. 7, 2002).

The trial court, citing Rice v. United States, 31 Fed. Cl. 156 (1994), aff'd, 48 F.3d 1236 (Fed.Cir.1995) (summary affirmance), noted that in Rice a challenge to a determination regarding fitness for duty was deemed nonjusticiable even if the court possessed subject matter jurisdiction. Although the trial court in this case favorably cited that alternative holding of Rice, the court did not decide the case on that ground, stating that, because the court did not have jurisdiction under the Tucker Act to hear the case, it was unnecessary to address the Government's alternative argument that Dr. Fisher's claim was not justiciable. The trial court dismissed the complaint, and Dr. Fisher filed a timely appeal with this court. We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1295(a)(3).


A. Tucker Act Jurisdiction

1. 3

Separating the question of a federal court's subject matter jurisdiction over a cause from the question of what a plaintiff must prove in order to prevail in the cause is, in many areas of the law, not a difficult matter: a specific statute sets the court's jurisdictional parameters; a separate statute or regulation or common law rule establishes the right that allegedly has been breached. In Tucker Act jurisprudence, however, this neat division between jurisdiction and merits has not proved to be so neat. In these cases, involving suits against the United States for money damages, the question of the court's jurisdictional

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grant blends with the merits of the claim. This mixture has been a source of confusion for litigants and a struggle for courts. The Government's arguments, on which it prevailed at trial, and the trial court's view of the matter, require that we address this issue.

It is hornbook law that the Tucker Act (of which there are several versions 4--it is the Big Tucker Act with which we are here concerned) does two things: (1) it confers jurisdiction upon the Court of Federal Claims over the specified categories of actions brought against the United States, and (2) it waives the Government's sovereign immunity for those actions. See U.S. v. Mitchell, 463 U.S. 206, 212-18, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ( Mitchell II ); United States v. Testan, 424 U.S. 392, 397-98, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). The causes to which the Act applies are claims for money...

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