Cowles v. McHugh

• Decision Date: 30 September 2014
• Docket Number: CIVIL ACTION NO. 3:13-CV-1741 (JCH)
• Court: U.S. District Court — District of Connecticut
• Parties: WILLIAM B. COWLES, Plaintiff, v. JOHN McHUGH, in his official capacity as Secretary of the Army, Defendant.

WILLIAM B. COWLES, Plaintiff, v. JOHN McHUGH, in his official capacity as Secretary of the Army, Defendant.

CIVIL ACTION NO. 3:13-CV-1741 (JCH)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

SEPTEMBER 30, 2014

RULING re: MOTION TO DISMISS AND FOR SUMMARY JUDGMENT (Doc. No. 15), MOTION FOR PROTECTIVE ORDER (Doc. No. 19), and CROSS-MOTION FOR SUMMARY JUDGMENT AND 56(d) MOTION (Doc. No. 23)

Plaintiff William B. Cowles brings this action against Secretary of the Army John McHugh in his official capacity as Secretary of the Army. Cowles alleges that he became disabled with post-traumatic stress disorder ("PTSD") because of his combat service in 2003, and that the Army erroneously diagnosed him with Adjustment Disorder (sometimes "AD") at that time. Less than two months later, the United States Department of Veteran's Affairs ("VA") diagnosed Cowles with PTSD. Later on, seeking military disability retirement pay and other tangible and intangible benefits that accrue to individuals whom the Army recognizes to have been separated for a disability incurred because of service, Cowles applied to the Army Board for Correction of Military Records ("ABCMR") to correct his records to reflect that he was separated for PTSD rather than for AD. See Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552 (AR 17);¹ 10 U.S.C. §§ 1201, 1552(a)(1). The ABCMRdenied Cowles' application. See ABCMR Decision (AR 3-15). Now, Cowles sues, arguing that the ABCMR was required to correct his records and award him the corresponding monies, or, in the alternative, that it did not adequately respond to the arguments that he raised. See Complaint ("Compl.") (Doc. No. 1). Specifically, Cowles alleges violations of: section 706(2)(A) of title 5 of the United States Code (the provision of the Administrative Procedure Act ("APA") prohibiting agency action that is "arbitrary [or] capricious") in Count I; the Due Process Clause of the Fifth Amendment in Count II; section 504 of the Rehabilitation Act of 1973 in Count III; and section 1201 of title 10 of the United States Code ("the military disability retirement statute") in Count IV.

Now, McHugh simultaneously moves to dismiss all of the counts of Cowles' Complaint and, in the alternative, for summary judgment as to all counts except Count III. See Defendant's Motion to Dismiss and for Summary Judgment ("Def.'s MTD/MSJ") (Doc. No. 15); Memorandum of Law in Support of Defendant's Motion to Dismiss and for Summary Judgment ("Def.'s Mem.") (Doc. No. 15-1). Cowles responds with a Cross-Motion for Summary Judgment on Counts I and IV and, in the alternative, seeks to stay consideration of the defendant's Motions pending discovery. See Plaintiff's Cross-Motion for Summary Judgment and 56(d) Motion ("Pl.'s MSJ") (Doc. No. 23); Memorandum of Law in Opposition to Defendant's Motion to Dismiss and for Summary Judgment and in Support of Plaintiff's Cross-Motion for Summary Judgment and Rule 56(d) Motion ("Pl.'s Mem.") (Doc. No. 23-1); see also Defendant's Reply Memorandumin Support of Motion to Dismiss and for Summary Judgment and Memorandum in Opposition to Plaintiff's Cross-Motion for Summary Judgment ("Def.'s Reply Mem.") (Doc. No. 27); Reply Memorandum in Support of Plaintiff's Cross-Motion for Summary Judgment ("Pl.'s Reply Mem.") (Doc. No. 34). McHugh also asks the court to preclude all discovery in the case. See Defendant's Motion for Protective Order ("MPO") (Doc. No. 19).

As explained in more detail below, the court concludes that the ABCMR's Decision was flawed in certain key respects and accordingly vacates the ABCMR's Decision and remands the case for further proceedings. The court declines to reach the remainder of the issues raised in the parties' Motions because they are either moot or premature at this time.

I. FACTS²

William B. Cowles is a 58-year-old resident of Connecticut. On September 21, 1974, Cowles enlisted in the Army National Guard. Defendant's Local Rule 56(a)(1) Statement ("Def.'s L.R. 56(a)(1) Stmt.") (Doc. No. 15-2) ¶ 1; Plaintiff's Local Rule 56(a)(2) Statement ("Pl.'s L.R. 56(a)(2) Stmt.") (Doc. No. 23-3) ¶ 1. During the course of his service, Cowles reached the rank of Sergeant (E-5). Def.'s L.R. 56(a)(1) Stmt. ¶ 2; Pl.'s L.R. 56(a)(2) Stmt. ¶ 2. On February 24, 2003, Cowles was activated for federal service as a member of the 248th Engineering Company, as part of the Connecticut National Guard. Def.'s L.R. 56(a)(1) Stmt. ¶ 4; Pl.'s L.R. 56(a)(2) Stmt. ¶ 4. He deployed to Kuwait (as an equipment specialist) on May 3, 2003. Def.'s L.R.56(a)(1) Stmt. ¶ 5; Pl.'s L.R. 56(a)(2) Stmt. ¶ 5.

After Mr. Cowles arrived in Kuwait, three people from the National Guard unit serving next to him were killed by a combination of sniper fire and a rocket-propelled grenade in an ambush on their humvee and dump truck; Cowles saw the remains when they returned to base. Plaintiff's Local Rule 56(a)(1) Statement ("Pl.'s L.R. 56(a)(1) Stmt.") (Doc. No. 23-2) ¶ 3; Defendant's Local Rule 56(a)(2) Statement ("Def.'s L.R. 56(a)(2) Stmt.") (Doc. No. 27-1) ¶ 3; AR 124. He then witnessed a death firsthand, as a soldier repeatedly beat a Pakistani truck driver in the head with the stock of his M-16 rifle until the man stopped moving; he and the other witnesses were instructed not to speak of the death. Pl.'s L.R. 56(a)(1) Stmt. ¶ 4; Def.'s L.R. 56(a)(2) Stmt. ¶ 4.

On approximately May 27, 2003, Cowles was evacuated from Kuwait to Rota, Spain. Def.'s L.R. 56(a)(1) Stmt. ¶ 7; Pl.'s L.R. 56(a)(2) Stmt. ¶ 7. Medical notes reflect that, at the time, he complained of prostate pain, which, the medical records stated, "was alleviated" with a blanket to sit on and "self medicat[ion] with [his] last percocet" pill. AR 73; Pl.'s L.R. 56(a)(1) Stmt. ¶ 5; Def.'s L.R. 56(a)(2) Stmt. ¶ 5; Def.'s L.R. 56(a)(1) Stmt. ¶ 6; Pl.'s L.R. 56(a)(2) Stmt. ¶ 6. Cowles later reported in a letter to the ABCMR that various extreme stressors, including the aforementioned deaths and other stressors, had caused various symptoms, among which was an inability to have a bowel movement. AR 125. After a number of days of these symptoms, he reported, he was suffering "extreme pain in [his] lower left side and nausea," and ultimately "hit total panic and passed out from the pain in [his] bowels." Id.

On May 28, 2003, Cowles was "screen[ed] for combat-stress related symptoms that are often associated with the development of Acute Stress or Post-TraumaticStress Disorders." Def.'s L.R. 56(a)(1) Stmt. ¶ 10; Pl.'s L.R. 56(a)(2) Stmt. ¶ 10; AR 117. The "screening indicated ... severe ... symptomatology," AR 117, although Cowles reported at that time that the source of his stress had been thoughts of his brother's death from stomach cancer ten years earlier, AR 115.

On May 31, 2003, Cowles was admitted at Walter Reed Army Medical Center. Def.'s L.R. 56(a)(1) Stmt. ¶¶ 13, 14; Pl.'s L.R. 56(a)(2) Stmt. ¶¶ 13, 14; AR 74. There, Cowles later wrote in a letter to the ABCMR that he was kept in the "Psychiatric Lock Down ward." AR 125. He also reported, inter alia, that he was having nightmares, although the treating medical staff "told [him he] had bad dreams, not nightmares." Id.

On June 11, 2003, Cowles was discharged from Walter Reed for convalescent leave, with instructions to report subsequently to Fort Drum, New York. Def.'s L.R. 56(a)(1) Stmt. ¶ 16; Pl.'s L.R. 56(a)(2) Stmt. ¶ 16; AR 81. Cowles later reported in his letter to the ABCMR that he was given "no supervision or treatment at all for a month." AR 125.

On July 14, 2003, Cowles reported to Fort Drum, New York. Def.'s L.R. 56(a)(1) Stmt. ¶ 18; Pl.'s L.R. 56(a)(2) Stmt. ¶ 18; AR 82. Cowles later reported that he was told that he "was sent [there] . . . to work on what they told [him] was anxiety and depression[; n]o one ever mentioned Adjustment Disorder to [him]." AR 125. There, he participated in "weekly group therapy and medication management." Def.'s L.R. 56(a)(1) Stmt. ¶ 19; Pl.'s L.R. 56(a)(2) Stmt. ¶ 19; AR 84. Cowles later reported that the group therapy "wasn't working for [him]." AR 125. He also reported needing "to rely on a quart of vodka to put [him] to sleep at night[, although e]ven then, it was restless [sleep]." AR 125-26. And he says that he was initially told he did not need medication,but that a friend "took [him] to the clinic . . . to get some meds because [he] was in such bad shape. [He was given] Trazadone [sic] to sleep and Zoloft to help with [shaking hands]." AR 126.

On August 21, 2003, Cowles met with Captain James Demer, Chief of the Division of Mental Health. Def.'s L.R. 56(a)(1) Stmt. ¶ 19; Pl.'s L.R. 56(a)(2) Stmt. ¶ 19; AR 83-84. Cowles later reported to the ABCMR that this meeting was no longer than fifteen minutes. AR 126. Cowles also reported that when he "told [his] doctor Captain Demers [sic] about [the medications], [Demer] got really mad. [Cowles also] told [Demer] that [Cowles'] bad dreams were turning [him] to drink excessively, too, but [Demer] didn't like hearing that either and didn't make any more attempts to speak with [Cowles] about what was wrong and what [Cowles] needed to do to get better." AR 126.

"[B]ased on clinical interview and collateral information," Demer wrote in a memorandum, Cowles "appears to be suffering from depressive and anxiety symptoms that occurred within the setting of difficulties adjusting to deployment." Def.'s L.R. 56(a)(1) Stmt. ¶ 20; Pl.'s L.R. 56(a)(2) Stmt. ¶ 20. He noted that Cowles' "condition had improved." Id. He recommended that Cowles be "demobilized and returned home for further disposition." Id.; AR 84.

In a "Developmental Counseling Form" dated August 27, 2003, Captain Kurt Walling reported that he advised Cowles that he was considering separating him under Army Regulation 635-200 for a disorder under paragraph 5-17 of that Regulation. Def.'s L.R. 56(a)(1) Stmt. ¶ 21; Pl.'s L.R. 56(a)(2) Stmt. ¶ 21. He noted that Cowles "still exhibit[ed] symptoms of...