Joslyn v. United States

• Decision Date: 10 April 2013
• Docket Number: No. 12-604 C,12-604 C
• Parties: CAPTAIN ROSS E. JOSLYN, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant.
• Court: U.S. Claims Court

CAPTAIN ROSS E. JOSLYN, Plaintiff,

v.THE UNITED STATES OF AMERICA, Defendant.

No. 12-604 C

United States Court of Federal Claims

Filed: April 10, 2013

Motion for Judgment on the

Administrative Record; RCFC

52.1; Motion to Supplement the

Administrative Record; Disability

Retirement Pay Claim Under 10

U.S.C. § 1201; Wrongful

Discharge Claim Under Military

Pay Act, 37 U.S.C. § 204

Michael D.J. Eisenberg, Washington, DC, for plaintiff.

James P. Connor, Trial Attorney, with whom were Stuart F. Delery, Deputy Principal Assistant Attorney General, Jeanne E. Davidson, Director, and Donald E. Kinner, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for defendant. Wayne H. Williams, Major, United States Army, Military Personnel Branch, Army Litigation Division, Fort Belvoir, VA, of counsel.

OPINION

HEWITT, Chief Judge

Captain Ross E. Joslyn (plaintiff or Captain Joslyn), a former United States Army (Army) officer and veteran of Operation Iraqi Freedom, brings this suit "seeking judicial review of actions by the United States Army." See Pl.'s Compl. (Complaint or Compl.), Docket Number (Dkt. No.) 1, ¶¶ 1, 11-12.

Captain Joslyn originally alleged four claims for relief stemming from the Army's evaluation of his service-connected disabilities and his subsequent discharge from the Army: (1) a claim that the Army's determination that Captain Joslyn was fit for duty "was not supported by substantial evidence, and . . . was judged against the wrong set of duties," making it "arbitrary, capricious, an abuse of discretion, or otherwise contrary to law," id. ¶¶ 31-33 (claim one); (2) a claim that the Army's "failure to conclude Plaintiff's second [medical evaluation] board [(MEB)] . . . was arbitrary, capricious, anabuse of discretion, or otherwise contrary to law," id. ¶¶ 34-35 (claim two); (3) a claim that the Army's "denial of Plaintiff's request for a medical extension so the second MEB [could] proceed was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law," id. ¶¶ 36-37 (claim three); and (4) a claim that the Army's "denials of Plaintiff's request to withdraw his resignation papers were arbitrary, capricious, an abuse of discretion, or otherwise contrary to law," id. ¶¶ 38-39 (claim four).

In the Complaint, Captain Joslyn described this case as "an action arising under" 10 U.S.C. § 1201 (2006), the Military Pay Act, 37 U.S.C. § 204 (2006), and the Administrative Procedures Act (APA), 5 U.S.C. § 706 (2006). See Compl. ¶¶ 4-6. More specifically, Captain Joslyn cited 10 U.S.C. § 1201 and the APA in support of claim one, see Compl. ¶¶ 32-33, the APA in support of claim two and claim three, see id. ¶¶ 35, 37, and the Military Pay Act in support of claim four, see id. ¶ 39.¹ It is well established that this court lacks jurisdiction over APA claims. See Martinez v. United States, 333 F.3d 1295, 1313 (Fed. Cir. 2003) (en banc) ("[T]he [United States] Court of Federal Claims lacks APA jurisdiction . . . ."); Murphy v. United States, 993 F.2d 871, 874 (Fed. Cir. 1993) ("[T]he Claims Court has no authority to invoke the APA."); see also Wopsock v. Natchees, 454 F.3d 1327, 1333 (Fed. Cir. 2006) (stating that the APA is not money mandating); Banerjee v. United States, 77 Fed. Cl. 522, 534 (2007) (same); cf. infra Part II.A (discussing this court's jurisdiction). After the United States (defendant or the government) filed a motion arguing, among other things, that plaintiff's APA claims should be dismissed as outside the court's jurisdiction pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (RCFC), see Def.'s Partial Mot. to Dismiss and Mot. for J. upon the Admin. R. (defendant's Motion or Def.'s Mot.), Dkt. No. 8, at 18, 20-21, plaintiff "withdr[e]w[] his claims as asserted under the [APA]," Pl.'s Opp'n to Def.'s Partial Mot. to Dismiss and J. on the Admin. R. and Cross-Mot. for J. on the Admin. R. in Pl.'s Favor (plaintiff's Motion or Pl.'s Mot.), Dkt. No. 11, at 1 n.1; see also id. (conceding that "[r]eference to the APA in the Complaint was in error" because "this Court does not have jurisdiction over APA claims, and . . . the APA is not a money-mandating statute").

The court understands plaintiff's withdrawal of his APA claims to encompass claim two and claim three,² which were based solely on the APA, as well as related claims for relief. Cf. Compl. ¶¶ 34-35 (claim two), 36-37 (claim three), 42-43 (relief related to claim two and claim three, respectively). The court also understands plaintiff to have withdrawn the portion of claim one that relies on the APA. Cf. id. ¶ 33 (portion of claim one relying on the APA). Accordingly, the court considers only the remaining portion of claim one and claim four, which are based respectively on the Army's finding that Captain Joslyn was fit for duty and the Army's denial of Captain Joslyn's request to withdraw his resignation. Compare id. ¶¶ 31-32 (portion of claim one citing 10 U.S.C. § 1201 and alleging that the Army's "finding of fitness was not supported by substantial evidence" and "was judged against the wrong set of duties"), and id. ¶¶ 38-39 (claim four, citing 37 U.S.C. § 204 and alleging that the Army's denial of plaintiff's request to withdraw his resignation papers was "arbitrary, capricious, an abuse of discretion, or otherwise contrary to law and must be set aside"), with Pl.'s Mot. 3 (stating that the only two issues remaining are whether the Army's determination that Captain Joslyn was fit for duty was supported by substantial evidence and whether his resignation was voluntary). Because plaintiff has withdrawn his APA claims, defendant's Motion with respect to them is now MOOT. Cf. Def.'s Resp. to Pl.'s Cross-Mot. for J. on the Admin. R. and Reply in Supp. of Partial Mot. to Dismiss and Mot. for J. upon the Admin. R. (defendant's Reply or Def.'s Reply), Dkt. No. 14, at 1 n.1 (stating that because Captain Joslyn has withdrawn his APA claims, defendant's Reply does not address them).

Defendant's Motion further contended that all of plaintiff's claims should be dismissed for lack of jurisdiction pursuant to Rule 12(b)(1) of the RCFC because the caption of the Complaint lists the Secretary of the Army, instead of the government, as the defendant. Def.'s Mot. at 18-20; cf. Compl. However, the court had already construed the Complaint as being against the government, acting through the Army, see Order of Dec. 19, 2012, Dkt. No. 9, at 1 n.1; cf. Compl. ¶ 1 (stating that plaintiff "seek[s] judicial review of actions by the United States Army"), which defendant later acknowledged, see Def.'s Reply 1 n.1. Accordingly, defendant withdrew that portion of its Motion seeking dismissal for lack of jurisdiction. Id. Because defendant's Motion sought dismissal for lack of jurisdiction only on the two grounds discussed above, see Def.'s Mot. 18, one of which is now moot and the other of which defendant has withdrawn, to the extent that defendant's Motion continues to seek dismissal under Rule 12(b)(1), defendant's Motion is DENIED-IN-PART AS MOOT.

Defendant's Motion also requested that, to the extent that the court found it had jurisdiction over any of plaintiff's claims, the court enter judgment on the administrative record in favor of defendant. Def.'s Mot. 1; accord Def.'s Reply 1 n.1 (stating that because the jurisdictional issues appeared to be resolved, "this brief will focus solely upon the parties' respective motions for judgment upon the administrative record"). Plaintiff has filed a cross-motion for judgment on the administrative record in favor of plaintiff. Pl.'s Mot. 1.

Now before the court are plaintiff's Complaint, filed September 14, 2012; defendant's Motion, filed November 16, 2012; plaintiff's Motion, filed January 2, 2013; defendant's Reply, filed February 14, 2013; and Plaintiff's Reply to Defendant's Opposition to Plaintiff's Cross-Motion for Judgment on the Administrative Record in Plaintiff's Favor (plaintiff's Reply or Pl.'s Reply), Dkt. No. 17, filed March 4, 2013.³ Both defendant's Motion and plaintiff's Motion were filed with corresponding appendices. See Defendant's Appendix (defendant's Appendix or Def.'s App.), Dkt. Nos. 8-1 to 8-7, and Plaintiff's Supplemental Appendix (plaintiff's Appendix or Pl.'s App.), Dkt. Nos. 11-1 to 11-2. The administrative record (AR), Dkt. No. 7, was filed by defendant on November 16, 2012. Also before the court are Plaintiff's Motion to Supplement the Administrative Record (plaintiff's AR Motion or Pl.'s AR Mot.), Dkt.No. 16, filed March 4, 2013; and Defendant's Response to Plaintiff's Motion to Supplement the Administrative Record (defendant's AR Response or Def.'s AR Resp.), Dkt. No. 18, filed March 21, 2013.

For the following reasons, plaintiff's AR Motion is GRANTED, defendant's Motion is GRANTED-IN-PART and DENIED-IN-PART AS MOOT, and plaintiff's Motion is DENIED.

I. Background⁴

A. The Army's Physical Disability Evaluation System

The Army's process for determining whether a soldier should be discharged by reason of medical disability is known as the Army's Physical Disability Evaluation System (Disability Evaluation System).⁵ Disability Evaluation System processing is triggered when the commander of the medical treatment facility where a soldier is receiving treatment--after determining that the soldier appears to be medically unqualified to perform his duties--refers the soldier to an MEB. Def.'s App. DA 18 (Army Regulation (Army Reg.) 635-40 ¶ 4-9). A Physical Evaluation Board Liaison Officer (PEB liaison) is appointed to counsel each soldier going through DisabilityEvaluation System processing. Id. at DA 11 (¶2-8(b)); see id. at DA 15 (¶3-8(a)) (discussing the responsibilities of the PEB liaison).

The Disability Evaluation System is three-tiered, consisting of: (1) an MEB to determine whether a soldier meets medical retention standards, see id. at DA 18 (¶ 4-10); (2) a Physical Evaluation Board (PEB) to...