Bargsley ex rel. All Other Individuals Similarly Situated v. United States
| Decision Date | 17 April 2015 |
| Docket Number | No. 12-468C,12-468C |
| Parties | DUSTIN BARGSLEY, RANDY HOWARD, SONNY MORRISON, BRIAN WILSON, and ALFONSO AGUILAR, on Behalf of Themselves and All Other Individuals Similarly Situated, Plaintiffs, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Motion to Dismiss; Jurisdiction; Recoupment of Disability Severance Pay From Veterans' Disability Compensation; 10 U.S.C. § 1212(d); Money-Mandating Statute; Veterans' Disability Compensation, 38 U.S.C. §§ 1110, 1131, 1161; Claims for Veterans' Benefits, 38 U.S.C. § 5101; Review of Veterans' Benefits Claims, 38 U.S.C. §§ 511, 7104, 7252, 7292; Comprehensive Scheme of Review; Bormes; Fausto; Vereda, Ltda.; Carlisle
David Z. Bodenheimer, Washington, DC, for plaintiffs.
Douglas K. Mickle, United States Department of Justice, Washington, DC, for defendant.
The five named plaintiffs in this action are veterans of the United States military who, as a result of injuries they sustained during their tours of duty in Iraq during Operation Iraqi Freedom, were separated from the military for disability. Their disabilities were all deemed to be both the direct result of a combat-related injury and incurred in the line of duty as a direct result of armed conflict, but their separation documents failed to reflect these facts.
Upon their separation from the military, plaintiffs received disability severance pay. However, when they subsequently began to receive disability compensation from the United States Department of Veterans Affairs ("VA"), the VA reduced the amount of their disability compensation by the amount of their disability severance pay. This reduction was contrary to a then-recently enacted law that prohibited the recoupment of disability severance pay from veterans who became disabled as a result of injuries sustained in the line of duty in a combat zone, or during the performance of duty in combat-related operations. In their initial complaint in this court, plaintiffs sought to have their separation documents corrected to reflect that theirdisabilities were combat related. The correction sought by plaintiffs would have enabled the VA to repay plaintiffs the funds it withheld from their disability compensation.
After plaintiffs filed suit, various entities within the military endeavored to identify the service members whose separation documents should have reflected that they were separated as a result of a combat-related disability, and the VA sought to repay any funds that it had withheld from those service members' disability compensation. As a result of these efforts, the VA refunded money to all five plaintiffs. However, plaintiffs were not convinced that they, or the class of similarly situated individuals that they sought to represent, received all of the relief to which they were entitled. Plaintiffs therefore filed an amended complaint.
Defendant moves to dismiss plaintiffs' amended complaint for lack of jurisdiction and for failure to state a claim upon which relief could be granted. In response, plaintiffs move for leave to file a second amended complaint to add a sixth plaintiff. The parties have fully briefed their motions, and the court heard argument. For the reasons set forth below, the court grants defendant's motion to dismiss for lack of jurisdiction and denies the remaining motions as moot.
When members of the United States military are deemed to be unfit to perform their duties due to a physical disability, they may be retired or separated from service.1 A member who has served for at least twenty years or has received a disability rating of at least thirty percent may be retired with disability retired pay. 10 U.S.C. § 1201 (2012). Depending on the stability and permanence of the disability, the member will be placed either on the permanent disability retired list ("PDRL") or the temporary disability retired list ("TDRL"). Id. § 1202; Secretary of the Navy Instruction ("SECNAVINST") 1850.4E, § 3705 (Apr. 30, 2002). Members not eligible for disability retirement-those with less than twenty years of service and a disability rating of less than thirty percent-may be separated with disability severance pay. 10 U.S.C. § 1203.
When service members are retired or separated, they are issued a DD Form 214 (Certificate of Release or Discharge From Active Duty) that documents their active duty military service and contains a separation program designator code ("SPD code") indicating the reason for the member's retirement or separation. See generally Department of Defense Instruction 1336.01 (Aug. 20, 2009); Bureau of Naval Personnel Instruction 1900.8D (June 10, 2011). A new DD Form 214 is not issued when a service member is removed from the TDRL and permanently retired, id.; rather, the service member receives a notice that he or she was discharged from the TDRL. Regardless of whether service members are retired or separated, they are entitled to apply to the VA for disability compensation. See 38 U.S.C. §§ 1110, 1131 (2012).
Prior to 2008, veterans of the United States military were prohibited from receiving both disability severance pay and VA disability compensation. With the enactment of the National Defense Authorization Act of 2008 on January 28, 2008, the status quo changed for veterans whose disabilities were the result of combat-related injuries. The prohibition against double recovery was amended to provide:
10 U.S.C. § 1212(d) ("section 1212(d)"). In other words, veterans with combat-related disabilities could receive both disability severance pay and VA disability compensation.2
Shortly after the enactment of the National Defense Authorization Act of 2008, the United States Department of Defense ("Defense Department") revised several of its regulations to allow for the implementation of the Act's disability provisions. The revisions, disseminated to the military departments with a March 13, 2008 memorandum, included changes regarding how to report a disability-related separation on a service member's DD Form 214. Specifically, the Defense Department replaced the SPD code used to indicate a disability separation (JFL) with SPD codes to indicate combat-related disability separations (JFI and JEA) and noncombat-relateddisability separations (JFO and JEB). The Defense Department indicated that the new SPD codes should be used immediately. The VA, having coordinated with the Defense Department, advised all of its regional offices and centers of the new SPD codes in a May 21, 2008 memorandum. It noted that, effective January 28, 2008, veterans who were awarded disability compensation and were assigned one of the two new combat-related disability SPD codes on their DD Forms 214 should not have their disability compensation reduced by the amount of their disability severance pay.
Notwithstanding the guidance provided in the Defense Department's March 13, 2008 memorandum, the United States Department of the Navy ("Navy") and the United States Marine Corps ("Marine Corps") did not immediately begin to use the new SPD codes for disability separations. In fact, the Navy did not begin to use the new SPD codes until May 2008 and the Marine Corps did not begin to use the new SPD codes until either February 2009 or October 2010.3
Plaintiffs Dustin Bargsley, Randy Howard, and Sonny Morrison filed suit on July 25, 2012, alleging that they were separated from the Marine Corps due to combat-related disabilities, but that their DD Forms 214 did not contain one of the two new combat-related disability SPD codes. Thus, when they began to receive disability compensation from the VA, the VA withheld funds from that compensation to recoup their disability severance pay. Accordingly, they sought in their complaint the correction of their DD Forms 214 and the repayment of the funds withheld from their VA disability compensation. They also sought the same relief for the class of similarly situated individuals.
After filing their complaint, plaintiffs worked with the government to resolve the matter amicably. In furtherance of these efforts, the Navy, the Marine Corps, and the VA took a number of corrective actions. First, the Navy sought to determine all of the individuals who were separated from the Navy and the Marine Corps due to combat-related disabilities between January 28, 2008, the effective date of the revision to the disability severance pay rules, and November 1, 2012. This task was assigned to the Navy's Physical Evaluation Board ("PEB"), which is responsible both for assessing the fitness of sailors and marines to serve, and for determining whether sailors and marines with duty-related impairments are entitled to benefits. The PEB reviewed its database and determined that it had made a disability severance finding for 2,502 service members during the relevant time period.
The PEB then reviewed its records for those 2,502 service members to determine whether the members' disabilities were incurred in line of duty in a combat zone (the records already indicated whether the members' disabilities were combat related). It identified 261 service members (57 sailors and 204 marines) who lacked the appropriate combat-zone or combat-related finding, and forwarded that information to the personnel offices of the Navy and the...
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