Cronin v. United States

• Decision Date: 28 August 2014
• Docket Number: No. 2013–5061.,2013–5061.
• Citation: 765 F.3d 1331
• Parties: Judith Louise CRONIN, Plaintiff–Appellant, v. UNITED STATES, Defendant–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

765 F.3d 1331

Judith Louise CRONIN, Plaintiff–Appellant,

v.UNITED STATES, Defendant–Appellee.

No. 2013–5061.

United States Court of Appeals,Federal Circuit.

Aug. 28, 2014.

Jeffery M. Chiow, Rogers Joseph O'Donnell, of Washington, DC, argued for plaintiff-appellant.

Douglas G. Edelschick, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Donald E. Kinner, Assistant Director. Of counsel on the brief was Matthew R. Roush, Lieutenant, Office of the Judge Advocate General, United States Department of the Navy, of Washington Navy Yard, DC.

Before TARANTO, SCHALL, and LINN, Circuit Judges.^*

TARANTO, Circuit Judge.

Commander Judith L. Cronin appeals the final judgment of the Court of Federal Claims granting judgment on the administrative record for the United States and dismissing her complaint, which alleged a wrongful denial of a promotion and an unduly low disability rating by the Navy. Cronin v. United States, 108 Fed.Cl. 39 (Fed.Cl.2012) (“ Opinion ”). The Trial Court concluded that her claims were not time barred but that she had failed to demonstrate reversible error on the merits. We hold that most of her claims were time barred, which means that there was no jurisdiction to decide them. As to one group of claims, i.e., those alleging post-traumatic stress disorder, there is no timeliness issue, but we see no error in the Trial Court's rejection of those claims on the merits.

I. Background

Commander Cronin was on active duty with the Navy from 1977 until the Navy placed her on the Temporary Disability Retired List (sometimes “TDRL” or “List”) on May 31, 1996. Cronin v. United States, 98 Fed.Cl. 268, 269 (Fed.Cl.2011) (“ Cronin III ”). During and after her service, she experienced a number of physical ailments and injuries. In 1978, she began experiencing problems with her right heel as a result of a calcaneal spur, and she had surgeries in 1979, 1993, 1994, and 1995 attempting to correct the problems. The surgeries were unsuccessful, and by 1995 the right-heel problem produced ongoing foot pain, pain in other parts of her body from walking on her right foot (even with orthotics), and an uneven gait. Opinion at 53. In 1979 or 1980, she began to experience other ailments, for which she received treatment from 1984 at least until 1998. Id. at 53–54. She was hospitalized for bipolar disorder in 1995. Id. at 57–58. Beginning in approximately 1998, medical professionals expressed differing opinions about whether she was suffering from bipolar disorder, anxiety disorder, post-traumatic stress disorder (“PTSD”), or some combination of those disorders. Id. at 58–59. In September 1999, she was diagnosed with chronic pain. Id. at 57. Commander Cronin has alleged that during her period of service, she was subjected to multiple physical and sexual assaults, stalking, and “extreme sexual harassment.” J.A. 129. At least one medical professional, a social worker, wrote a reportdescribing such assaults and harassment as supporting a PTSD diagnosis. Opinion at 59.

The Navy's Medical Evaluation Board reviewed Commander Cronin's condition on November 15, 1993, and April 16, 1994, and each time recommended that she be placed on limited duty due to the right-heel injury. J.A. 128. The second period of limited duty had an expiration date of September 12, 1994. Id. In May 1994, the Navy had selected Commander Cronin, then a Lieutenant Commander, for promotion to the rank of Commander, which was set to occur on October 1, 1994. J.A. 75; Opinion at 42. She was “frocked” to the rank of Commander on August 25, 1994 and, that same month, underwent one of her heel surgeries. In an August 1994 letter, however, a Navy physician found that Commander Cronin was not fit for full duty. Opinion at 42. In a letter that carries the date September 30, 1994, the Chief of Naval Personnel notified her that she was found not fit for duty—referring to a Medical Evaluation Board report that did not issue until October 5, 1994—and announced that her promotion would be delayed. Id. The letter offered Commander Cronin the opportunity to challenge the delay of her promotion within ten days of her receipt of this letter. Id. She received the letter by October 14, 1994, and she responded on October 26, 1994. Id.

The Navy referred Commander Cronin's case to its Disability Evaluation System, and in October 1995 the Navy's Physical Evaluation Board received the case for review. Id. at 42–43. That Board evaluated six of Commander Cronin's physical ailments and placed each into one of three categories: (1) unfitting conditions; (2) conditions that contribute to unfitting conditions; and (3) conditions that are not separately unfitting and do not contribute to unfitting conditions. Based on its disability findings, the Board found her unfit to perform her duties, assigned her a disability rating of 60%, and, because her conditions had not yet stabilized, stated that she was to be placed on the Temporary Disability Retired List, according her disability benefits. Id. at 43; J.A. 96–99.

In January 1996, Commander Cronin challenged the delay in her promotion before a different Navy board, namely, the Board for Correction of Naval Records. The Board for Correction, in mid-May 1996, determined that the delay was justified based on the concerns over her fitness for full duty. Id. On May 31, 1996, Commander Cronin was issued Form DD–214, formally placing her on the Temporary Disability Retired List and simultaneously promoting her to Commander. Cronin III at 269.

Having been placed on the TDRL, Commander Cronin was subject to reevaluation of her conditions every 18 months in order to continue receiving disability benefits. Opinion at 43. In March 2000, the Physical Evaluation Board concluded that her conditions had not yet stabilized but made several adjustments, for various reasons, to her disability rating. It was during the proceedings in which those adjustments were made that Commander Cronin first raised post-traumatic stress disorder as an issue. Ultimately, in August 2000, the Physical Evaluation Board declined to find a compensable claim of PTSD because there had been no finding, at the time she was placed on the List in 1996, that such a condition rendered her unfit for duty. The Physical Evaluation Board appears to have reached the same conclusion with respect to the chronic pain disorder. And it concluded that her conditions had stabilized, so that on October 1, 2000, after the August decision became final, the Navy placed her on the Permanent Disability Retired List, permanently retiring her. Id. Commander Cronin challenged the findings before the Board for Correction, which in 2004 denied her relief. Id. at 43–44.

Commander Cronin filed suit on September 7, 2006, challenging the Board for Correction's 1996 decision regarding her delayed promotion and its 2004 decision regarding her disability rating. Cronin III at 269. The Trial Court initially ruled that all but the PTSD-related claims were time barred and that the decision related to PTSD was not arbitrary and capricious, but it remanded to the Board for Correction for reevaluation of Commander Cronin's annuity payments. Id. On appeal to this court, we vacated the judgment and remanded for the Trial Court to consider whether the Servicemembers Civil Relief Act of 2003, Pub.L. No. 108–189, § 206, 117 Stat. 2835, 2844 (2003) (codified at 50 U.S.C. app. §§ 511(2), 526(a)), tolled the statute of limitations and, if so, whether the disabling conditions were exacerbated by PTSD. Cronin v. United States, 363 Fed.Appx. 29 (Fed.Cir.2010).

On remand, the Trial Court concluded that the 2003 Relief Act does toll the statute of limitations during the time a service member is on the Temporary Disability Retired List, so that all of Commander Cronin's claims were timely. Cronin III at 278. The Trial Court then remanded to the Board for Correction for consideration of her PTSD claims, but the Board for Correction subsequently declined to increase her disability rating. Opinion at 42. Commander Cronin appealed that decision to the Trial Court, which affirmed on cross motions for judgment on the administrative record. Opinion at 61.

Commander Cronin appeals. This court has jurisdiction under 28 U.S.C. § 1295(a)(3).

II. Standards of Review

The proper interpretation of the Relief Act's tolling provision as it relates to the Temporary Disability Retired List is a legal issue of first impression for this court. We decide such issues of statutory interpretation de novo. Cemex, S.A. v. United States, 384 F.3d 1314, 1319 (Fed.Cir.2004).

We also review the Trial Court's judgment on the administrative record de novo, applying the same standard of review to the Board for Correction decision as the Trial Court applied. Melendez Camilo v. United States, 642 F.3d 1040, 1044 (Fed.Cir.2011). Our review is limited to determining whether a Board for Correction decision “is arbitrary, capricious, unsupported by substantial evidence, or contrary to applicable statutes and regulations.” Id. (internal quotation marks omitted).

III. Discussion

A. The Relief Act's Tolling Provision

We conclude that, except for the claims based on posttraumatic stress disorder, Commander Cronin's claims were time barred, because the Servicemembers Civil Relief Act, 50 U.S.C. app. §§ 511(2), 526(a), did not toll the six-year statute of limitations, 28 U.S.C. § 2501, for the 4 years and five months that she was on the Temporary Disability Retired List under 10 U.S.C. § 1202. Untimeliness under this statute of limitations is “jurisdictional.” John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 134, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). Accordingly, our conclusion regarding lack of timeliness requires that we vacate the judgment on the...