Havens v. Mabus

• Decision Date: 25 November 2015
• Docket Number: Civil Action No. 10-1859 (ABJ)
• Citation: 146 F.Supp.3d 202
• Parties: William Havens, Plaintiff, v. Ray Mabus, Secretary of the Navy; Chairman, Board for Correction of Naval Records, Defendant.
• Court: U.S. District Court — District of Columbia

146 F.Supp.3d 202

William Havens, Plaintiff,

v.Ray Mabus, Secretary of the Navy; Chairman, Board for Correction of Naval Records, Defendant.

Civil Action No. 10-1859 (ABJ)

United States District Court, District of Columbia.

Signed November 25, 2015

John B. Wells, Law Offices of John B. Wells, Slidell, LA, for Plaintiff.

Wynne Patrick Kelly, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

AMY BERMAN JACKSON

, United States District Judge

This case comes before the Court on remand from the U.S. Court of Appeals for the District of Columbia Circuit. Plaintiff William Havens, a retired Navy Reserve officer who suffers from psoriatic arthritis

, was transferred from active duty to non-active duty in 1996 because he had not been promoted in two consecutive years. In 2002, he was transferred to the retired reserve, because he had been found not physically qualified to perform his duties as a reservist in 2001. In 2000 and 2002, Havens requested that the Board for Correction of Naval Records (“the Board”) correct his military record: the first time he maintained that he should have been offered early disability retirement in 1996, and the second time he took the position that the Navy was either wrong when it found him fit in 1996 or it was wrong when it found him not physically qualified in 2001 because his condition was the same at both times. The Board denied plaintiff's two requests for correction and four later requests for reconsideration.

Plaintiff challenged these denials under the Tucker Act in the Court of Federal Claims. That court dismissed his case on the grounds that the statute of limitations under the Tucker Act had run, and the U.S. Court of Appeals for the Federal Circuit affirmed. Plaintiff then sued in this Court under the Administrative Procedure Act (“APA”), seeking an order that defendant correct his record to reflect that he should have been medically retired. On September 26, 2012, the Court dismissed the action on res judicata grounds, given the prior court rulings. On July 25, 2014, the U.S. Court of Appeals for the D.C. Circuit reversed the dismissal on those grounds. It ruled that four of plaintiff's requests were time-barred under the APA statute of limitations, and remanded the remaining two for further review.

The two claims remanded to the Court challenge the Board's denial of plaintiff's 2002 request for correction and its denial of his request for reconsideration of that denial. After the remand, the parties filed cross-motions for summary judgment. The Court will grant defendant's motion and deny plaintiff's motion because the Court finds that the two Board decisions at issue were not arbitrary, capricious, an abuse of discretion, contrary to law, or unsupported by substantial evidence.

BACKGROUND

Commander Havens is a retired naval officer who served on active duty in the United States Navy Reserve from March 1980 until August 1996.¹ Certificate of Release or Discharge from Active Duty, Administrative Record [Dkt. # 4] (“AR”) 26. He seeks review under the Administrative Procedure Act, 5 U.S.C. § 702

, of the Board's denials of his requests to change his naval record under 10 U.S.C. § 1552. Am. Compl. [Dkt. # 13] at 1, 16–17.

I. The Governing Statute and Regulations

Pursuant to 10 U.S.C. § 1216

, the Secretary of the Navy is responsible for “separating or retiring” service members who are unable “to continue naval service because of physical disability.” Instruction 1850.4D, Secretary of the Navy (1998), at 10-1.² The Secretary evaluates service members' disabilities through the Navy's Disability Evaluation System. If a physician determines that a service member “is unable to perform full military duty or unlikely to be able to do so within a reasonable period of time,” a Medical Evaluation Board (“MEB”) evaluates the member and determines if further evaluation is required. Id. at 10-2. If so, the MEB refers the service member to an informal Physical Evaluation Board (“PEB”). Havens v. Mabus , 759 F.3d 91, 93 (D.C.Cir.2014)

.

If the service member is on active duty, the informal PEB determines whether the member is “fit” or “unfit” to continue service. Instruction 1850.4D § 4211a. If the member is on nonactive duty status, it determines whether the member is “physically qualified” or “not physically qualified” to continue service. Id. § 4221b; see also § 2054 (providing that the “Not Physically Qualified (NPQ) For Continued Naval Service” disposition applies “to a reservist when he or she is unable to continue service in the Naval or Marine Corps Reserves because of a non-duty related disease or injury which precludes the member from performing the duties of his or her office, grade, rank, or rating in such a manner as to reasonably fulfill the purpose of his or her reserve employment”).

Both standards consider whether a member is able to perform “the duties of his or her office, grade, rank or rating,” but the difference between the two inquiries turns upon whether the disabling condition was incurred while the member was on active duty or not. Compare Instruction 1850.4D at 1-2, with 1850.4D at 2-16; see also Havens , 759 F.3d at 93 n. 4

. A disability incurred on active duty that prevents a member from performing his or her duties would result in an “unfit” determination, and the member would be entitled to disability retirement benefits. See 10 U.S.C. § 1201(a) (providing that to be eligible for disability retirement, a member's physical disability must be “incurred while entitled to basic pay”); id. § 1201(b) (requiring a member with less than 20 years' service to have a disability that “was incurred in line of duty”).

A disability incurred while on non-active duty status that prevents a member from performing his or her duties as a reservist would lead to a “not physically qualified” finding, and the member would be discharged. Havens , 759 F.3d at 93

(explaining that an informal PEB determines whether an active duty service member is “fit” or “unfit” to continue service, while it determines whether a non-active duty reservist is “physically qualified” or “not physically qualified” to continue service). Accordingly, the member would not be entitled to disability retirement benefits. 10 U.S.C. § 1201(a), (b).

In explaining the term “fit,” Navy regulations state that “the mere presence of a diagnosis is not synonymous with a disability. It must be established that the medical disease or condition underlying the diagnosis actually interferes significantly with the member's ability to carry out the duties of his or her office, grade, rank or rating.” Instruction 1850.4D § 2032. And in explaining when a service member is entitled to disability retirement benefits, the regulations provide that the definition of “ ‘[w]hile entitled to receive basic pay’ ... shall not be construed to entitle any member not on active duty, who, at the time of separation from active duty was considered Fit to continue naval service, to benefits under 10 U.S.C., Chapter 61, because of an increase in impairment occurring while the member was not entitled to basic pay.” Id. § 2038b. In other words, a service member deemed “fit” for active duty upon separation from the Navy does not become entitled to disability retirement benefits because his or her condition later worsens while on non-active duty status.

II. Plaintiff's Naval Service and Medical History

Plaintiff began his service as an active duty member in March 1980 and spent most of his career performing training and administration for the Navy Reserve. Certificate of Release or Discharge from Active Duty, AR 26. He began experiencing health issues in 1995 while on active duty. Memorandum from M.L. Culver, Dir., Sec'y of Navy Council of Review Boards (“CORB”) to Exec. Dir., Board (March 22, 2006) (“CORB First Adv. Op.”), AR 97–101 (reporting “persistent painful swollen Left dominant 4th finger DIP” and “Right great toe onycholysis

,” a two year history of “intergluteal skin rash,” as well as fevers and fatigue in late 1995). In February 1996, Dr. Kevin Craig at Treasure Island Naval Base diagnosed plaintiff with psoriatic arthritis. CORB First Adv. Op. at AR 97; Medical Records, Feb. 6, 1996, AR 183–84.

A. In 1996, plaintiff was removed from active duty and transferred to nonactive duty because he was not promoted for two consecutive years.

In August 1996, six months after plaintiff received Dr. Craig's diagnosis, the Reserve released him from active duty and moved him to non-active reserve duty³ because he had failed to be promoted twice. See 10 U.S.C. § 14506

.

In September 1996, as part of his separation from the Reserve, plaintiff underwent a physical examination. Medical Examination (Sept. 9, 1996), AR 171–172. The doctor noted that plaintiff was treated for psoriatic arthritis

but was “found fit for full duty and qualified for separation/retirement/transfer to Fleet Reserve during retirement physical on 27 Jun 96.” Id. at 172. And plaintiff described himself at that time as in “good health and in good shape.” Letter from W. Dean Pfeiffer, Exec. Dir., Board to William Havens (June 13, 2000) (“First Denial”), AR 154–55, at AR 154. The Reserve released plaintiff from active duty with separation pay and assigned him to non-active reserve duty. Pl.'s Opp. to Def.'s Mot. and Cross-Mot. for Summ. J. [Dkt. # 36-2] (“Pl.'s Opp.”) at 8; Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. for Summ. J. [Dkt. # 33] (“Def.'s Mem.”) at 2; Letter from Dep't of Veterans Affairs to William Havens (Sept. 24, 1997), AR 168–70, at AR 169.⁴

B. From 1997 to 2000, plaintiff was found “physically qualified” for nonactive reserve duty.

From 1997 to early 2000, plaintiff was regularly found to be “physically qualified” for his duties as a non-active duty reservist. See Letter of Pl.'s Counsel to Board, June 2, 2005 (“Pl.'s June 2, 2005 Letter”), AR 18–22, at AR 19; see also Am. Compl. ¶¶ XXXIV, XLV, LII, LVI (stating that plaintiff was found ...