Coleman v. Wilson
| Decision Date | 30 March 2022 |
| Docket Number | 5:17-CV-00096-RJC-DSC |
| Parties | BLAIR COLEMAN, Plaintiff, v. HEATHER WILSON, Secretary of the Air Force, Defendant. |
| Court | U.S. District Court — Western District of North Carolina |
MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the Court on the “United States' Renewed Motion to Dismiss for Lack of Subject Matter Jurisdiction and, in the Alternative, Motion for Summary Judgment, ” Doc. 38, filed on February 22 2021, and the parties' associated briefs and exhibits.
The matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and this Motion is now ripe for the Court's consideration.
Having fully considered the arguments, the record, and the applicable authority, the undersigned respectfully recommends that Defendant's Motion to Dismiss be denied and Defendant's Motion for Summary Judgment be granted as discussed below.
Plaintiff Blair Coleman seeks injunctive relief under the Administrative Procedure Act (“APA”), 5 U.S.C § 701 et seq., to correct his discharge records to reflect medical retirement from the United States Air Force by reason of permanent disability. Doc. 1 at 14. Coleman served as an active-duty staff sergeant and witnessed service members being severely injured and killed during a mortar attack in Iraq. Id. at 15. As a result of the trauma he experienced from the attack, he was entered into the Disability Evaluation System process. Id. at 6. His claim was forwarded to an Informal Physical Evaluation Board (IPEB) to determine whether his diagnosis of anxiety disorder rendered him unfit for military service. Id. On September 9, 2005, the IPEB concluded that Coleman was unfit for military service and assigned him a disability rating of ten percent. Id. at 8.
On October 24, 2005, he was medically separated from the Air Force. Id. at 8. Based upon his ten percent disability rating, Coleman was not entitled to continuing retirement benefits including health care, because his disability rating at separation was less than thirty percent. Id. On March 15, 2006, Veterans Affairs (“VA”) assigned him a disability rating of thirty percent effective October 25, 2005. Id. at 9. He began receiving disability compensation benefits from the VA. Id.
In 2008, Congress passed the National Defense Authorization Act. See 10 U.S.C. § 1554. The Act mandated retroactive consideration of disability determinations for members of the armed forces who were separated due to a medical condition with a disability rating of twenty percent or less between September 11, 2001 and December 31, 2009. Id. The Act created the Physical Disability Board of Review (“PDBR”) to determine whether the Veterans Affairs Schedule for Rating Disabilities (“VASRD”) guideline codified at 38 C.F.R. § 4.129 () applied to cases like Coleman's. Doc. 1-1 at 2.
On April 16, 2011, Coleman requested a hearing before the PDBR, stating Doc. 1 at 11; Doc. 1-1 at 1; Doc. 10 at 2. On May 17, 2012, the PDBR issued its decision, determining pursuant to VASRD § 4.129 that Coleman should have been placed on the Temporary Disability Retired List (“TDRL”) for six months at a fifty percent disability rating beginning October 24, 2005 rather than being permanently discharged on that date. Doc. 1-1 at 4. The Board concluded that he would have been permanently discharged on April 24, 2006 after six months on the TDRL. Id. The PDBR affirmed the ten percent disability rating. Id. Coleman did not undergo a follow-up examination before his removal from the TDRL. Doc. 1 at 11-12.
On April 8, 2014, the VA revised his diagnosis to Post-Traumatic Stress Disorder and increased his disability rating to fifty percent effective February 8, 2013. Id. at 8.
On June 8, 2017, he filed this action to challenge the PDBR's decision under the APA. Doc. 1. The Court granted the United States' Motion to Dismiss for lack of subject matter jurisdiction, finding that the “true nature of Plaintiff's Complaint takes a monetary form.” Doc. 19 at 5. On May 30, 2018, Coleman appealed that Order to the Fourth Circuit. Docs. 22, 24. After Coleman filed a Declaration “waiving any right to military retirement pay, ” Doc. 39-1 at 2, the Fourth Circuit remanded the case to “reconsider its jurisdictional ruling in light of the Coleman Affidavit filed on appeal.” Doc. 25 at 1; Doc. 25-1.
On February 22, 2021, the Government filed a Renewed Motion to Dismiss for Lack of Subject Matter Jurisdiction and, in the Alternative, Motion for Summary Judgment. Doc. 38.
A. Standard of Review - Rule 12(b)(1)
Federal district courts have limited jurisdiction. United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). “They possess only that power authorized by Constitution and statute.” Randall v. United States, 95 F.3d 339, 344 (4th Cir. 1996). “Thus, when a district court lacks subject matter jurisdiction over an action, the action must be dismissed.” Vuyyuru, 555 F.3d at 347.
Federal subject matter jurisdiction is a threshold issue for the Court, Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999), and a challenge to subject matter jurisdiction is properly considered on a motion under Fed.R.Civ.P. 12(b)(1). Clinton v. Brown, No. 3:15-cv-0048-FDW-DSC, 2015 WL 4941799 (W.D. N.C. Aug. 19, 2015).
The burden of establishing federal subject matter jurisdiction rests on the party asserting it. See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). The moving party should prevail on a motion to dismiss for lack of federal jurisdiction if “material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg & Potomac R.R. Co. v. U.S., 945 F.2d 765, 768 (4th Cir. 1991).
In determining whether a factual basis for subject matter jurisdiction exists for purposes of deciding a Rule 12(b)(1) motion to dismiss, the court is to regard allegations in the pleadings as “mere evidence on the issue, ” and may consider evidence outside the pleadings without converting the motion to one for summary judgment. Id. at 768; Fed.R.Civ.P. 12(d). “A trial court may consider evidence by affidavit, depositions or live testimony without converting the proceeding to one for summary judgment.” Adams, 697 F.2d at 1219 (citations omitted).
A service member may be entitled to retirement benefits or medical severance pay if he becomes disabled while on active duty. 10 U.S.C. §§ 1201- 1221. The Secretary of each service is authorized to place members in disability retirement status upon a finding that the member was unable to perform military duties by reason of disability while on active duty. 10 U.S.C. § 1201. A member is placed on the TDRL for a period not to exceed five years if the disability is not considered permanent. 10 U.S.C. § 1210. If the disability is considered permanent and rated as thirty percent disabling or higher, the member is placed in permanent retired status. 10 U.S.C. § 1201.
If rated less than thirty percent, the member is only entitled to medical severance pay. 10 U.S.C. § 1203
B.The Court has subject matter jurisdiction over Coleman's Complaint.
Coleman challenges the disability rating of ten percent that he received upon his discharge from the Air Force in 2005. See Doc. 10 at 2. The Government asserts that Coleman is bringing a monetary claim and thus, the Tucker Act, 28 U.S.C. § 1491, provides an adequate remedy. But Coleman invokes the APA, 5 U.S.C. § 706, as the basis for subject matter jurisdiction.
The Fourth Circuit explained the relationship between the Tucker Act and the APA in Randall v. United States:
The interplay between the Tucker Act and the APA is somewhat complicated and raises some significant issues of federal court jurisdiction. Determining the proper statutory framework for the district court's jurisdiction in this case is critical because it affects the appellate jurisdiction of this court. The United States Court of Appeals for the Federal Circuit, not the regional courts of appeals, has exclusive jurisdiction over appeals in cases based “in whole or in part” on the Tucker Act. 28 U.S.C. § 1295(a)(2). The provision of 28 U.S.C. § 1295(a)(2) is mandatory and cannot be waived by the parties, because it relates to the subject matter jurisdiction of this court.
95 F.3d 339, 346 (4th Cir. 1996) (emphasis added) (internal citations omitted). The APA limits district court jurisdiction to claims for “relief other than money damages, ” and “for which there is no other adequate remedy in a court.” 5 U.S.C. §§ 702, 704. The Tucker Act, like the APA, waives the United States' sovereign immunity from suit. 28 U.S.C. § 1491. Under the Tucker Act, the U.S. Court of Federal Claims has exclusive jurisdiction for monetary claims against the United States exceeding $10, 000. See 28 U.S.C. §§ 1346(a)(2), 1491(a)(1). See also Randall, 95 F.3d at 346-47.
But the Tucker Act only precludes APA judicial review “when plaintiff has an adequate remedy by suit under the Tucker Act.” Randall, 95 F.3d at 346. The Supreme Court has recognized a “strong presumption that Congress intends judicial review of agency action, ” so that “judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.” Bowen v. Michigan Acad. of Fam. Physicians, 476 U.S. 667, 670 (1986).
Therefore to have jurisdiction over an APA claim, the court must find that (1)...
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