Keltner v. United States
| Decision Date | 03 June 2020 |
| Docket Number | No. 19-663C,19-663C |
| Parties | JOEL V. KELTNER, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Military Pay; Board for Correction of Military Records; Motion For Voluntary Remand; Remand Statute; SKF USA Inc. v. United States; Administrative Record Review; RCFC 52.2.
Sara Ruvic, Buckley, LLP, Washington, DC, for plaintiff. With her on the briefs was Meghann Fogarty Kovler.
John M. McAdams III, United States Department of Justice, Civil Division, Washington, DC, for defendant. With him on the briefs were Joseph H. Hunt, Assistant Attorney General, Civil Division, Robert E. Kirschman, Jr., Director, and Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC.
Plaintiff, Joel V. Keltner, seeks disability retirement pay and benefits, which he alleges the United States Department of the Air Force ("Air Force") unlawfully has denied him. The government moved to stay the case and for this Court to grant a voluntary remand of the matter to the Air Force Board for Correction of Military Records ("AFBCMR") pursuant to Rule 52.2 of the Rules of the Court of Federal Claims ("RCFC"). Before resolving the government's motion, this section summarizes the underlying facts and procedural history. For the purposes of resolving the pending motion, the Court "makes no finding of facts herein and accepts as true all well-pleaded factual allegations in the Complaint." Hirsch v. United States, 2019 WL 4316880, at *1 n.1 (Fed. Cl. Sept. 12, 2019) ().
Mr. Keltner enlisted in the Air Force approximately two weeks before the terrorist attacks of September 11, 2001. ECF No. 1 ("Compl.") ¶ 12. On January 16, 2002, Mr. Keltner entered active duty service, and, in October 2003, Mr. Keltner deployed to Pakistan for his first of three combat tours of duty. Id. ¶¶ 12-13. On February 16, 2006, Mr. Keltner transitioned from active duty to the Air Force Reserve, and, in January 2008, Mr. Keltner deployed again, this time to Iraq. Id.
In August 2011, Mr. Keltner deployed to Afghanistan for his final combat tour of duty. Compl. ¶ 13. While deployed, Mr. Keltner experienced mortar, rocket, and small arms fire attacks. Id. ¶ 14. Mr. Keltner also witnessed wounded warfighters, "including a soldier who had suffered a shrapnel wound to the face." Id. As is too often the case with combat veterans, Mr. Keltner's "deployment to Afghanistan placed significant stress" on his family as well. Id. ¶ 15. Three weeks prior to his scheduled return date, Mr. Keltner's wife informed Mr. Keltner "that she planned to seek a divorce, and that she and their two children had moved from their home in Kansas to a new home in Arizona." Id. In February 2012, Mr. Keltner returned from Afghanistan "to an empty home." Id. ¶ 16.
On February 16, 2012, Mr. Keltner completed a Post Deployment Health Assessment, which did not identify symptoms of Post-Traumatic Stress Disorder ("PTSD"). Compl. ¶ 16. On August 4, 2012, however, Mr. Keltner completed a Post Deployment Re-Assessment, which indicated that Mr. Keltner was exhibiting PTSD symptoms. Id. The Air Force advised Mr. Keltner to seek out behavioral health services. Id. Thereafter, Mr. Keltner met with his primary care physician who diagnosed Mr. Keltner with chronic anxiety as well as depression and prescribed a treatment plan for him. Id. ¶ 17.
On December 1, 2012, Mr. Keltner told members of his unit that he had considered committing suicide. Compl. ¶ 18. On December 2, 2012, in response to Mr. Keltner's comments and at the recommendation of certain Air Force mental health staff, Mr. Keltner's superiors took him to a local emergency room for mental health, suicidal ideation, and homicidal ideation assessments.1 Id. ¶ 19.
On June 8, 2013, Mr. Keltner completed an Air Force Web Based Health Assessment and met with a doctor to discuss the results of that assessment. Compl. ¶ 21. The reviewing doctor determined that Mr. Keltner required further assessment and instructed Mr. Keltner to provide the 442nd Medical Squadron with his medical records. Id. On September 7, 2013, Mr. Keltner went to the 442nd Medical Squadron for an additional assessment. Id. ¶ 23. The examiner noted that Mr. Keltner presented depressed mood and recommended that he undergo further testing for depression, PTSD, and adjustment disorder. Id. The 442nd Medical Squadron staff also instructed Mr. Keltner to make an appointment with the 509th Medical Group Mental Health Clinic for further assessment. Id. On September 17, 2013, Mr. Keltner attended an appointment at the 509th Medical Group Mental Health Clinic where the examiner diagnosed Mr. Keltner with chronic adjustment disorder with anxiety and depressed mood. Id. ¶ 24.
On December 11, 2013, the 442nd Medical Squadron issued a Duty Limiting Condition Report, which determined that Mr. Keltner was no longer qualified for deployment. Compl. ¶ 25. A memorandum accompanying the report confirmed that Mr. Keltner's duty-limiting condition was his chronic adjustment disorder.2 Id.
According to the Complaint, Air Force Instruction ("AFI") 36-2910 and AFI 48-123 required the Air Force to complete a "line of duty determination" to assess whether Mr. Keltner's duty-limiting condition occurred "in the line of duty." Compl. ¶ 26. If the Air Force determined that Mr. Keltner's duty-limiting condition occurred in the line of duty, then Mr. Keltner might qualify for a medical discharge or certain retirement benefits. Id. ¶ 27. The Air Force, however, allegedly did not complete a line of duty determination. Id. ¶ 26. Instead, on April 24, 2015, the Air Force informed Mr. Keltner that it was initiating an honorable administrative discharge separation action against him. Id. ¶ 28. The effect of the administrative discharge would be to end Mr. Keltner's military career, but to do so without entitling him to a medical discharge or certain associated retirement benefits. Id.
On June 10, 2015, Mr. Keltner appealed the Air Force's decision to initiate an honorable administrative discharge separation action to the AFBCMR. Compl. ¶ 28. The AFBCMR's decision is at the heart of Mr. Keltner's Complaint in this Court.
To resolve Mr. Keltner's appeal, the AFBCMR solicited two medical advisory opinions: one from Dr. Natalya Chernyak, a psychiatric consultant, and a second from Colonel June Cook, a representative from the Air Force Reserve Command/Surgeon General Office ("AFRC/SGO"). Compl. ¶ 29. Both advisory opinions agreed that a line of duty determination was necessary to assess Mr. Keltner's claim, and both opinions proceeded to analyze whether Mr. Keltner's disorder developed "in the line of duty." Id. ¶ 30. The advisory opinions, however, allegedly applied divergent standards and thus arrived at different conclusions. Dr. Chernyak determined that Mr. Keltner incurred his disorder in the line of duty, while COL Cook determined that Mr. Keltner's disorder was the result of "personal stressors" and did not occur in the line of duty. Id. ¶¶ 32-34. Mr. Keltner alleges that Dr. Chernyak applied the correct standard as AFI 36-2910 prescribed, while COL Cook applied a standard that was contrary to AFI 36-2910. Id. ¶¶ 32-33, 36-37. Further, Mr. Keltner alleges that COL Cook's advisory opinion was unsupported by substantial evidence. Id. ¶ 37.
The AFBCMR adopted COL Cook's advisory opinion and denied Mr. Keltner's claim. Compl. ¶ 36. In particular, the AFBCMR concluded:
While we note the comments of AFBCMR Psychiatric Advisor indicating that relief should be granted because the applicant was subsequently awarded a 10 percent disability rating for Post-Traumatic Stress Disorder by the Department of Veterans Affairs, the Board took notice of the applicant's complete submission in judging the merits of the case and agreed with the opinion and recommendation of AFRC/SGO and adopt its rationale the applicant has not been a victim of an error or injustice as we did not find where the applicant's mental health issues were the result of military stressors.
Id. (emphasis added).
On May 3, 2019, Mr. Keltner filed his Complaint in this Court. See generally ECF No. 1. On June 28, 2019, the government moved for an extension of time to file its response to the Complaint, which the Court granted on July 1, 2019. ECF Nos. 5, 6. On August 22, 2019, the government moved for a second extension of time to file its response to the Complaint, which the Court granted on August 27, 2019. ECF Nos. 7, 8. The Court ordered the government to file its response by November 1, 2019. ECF No. 8.
On November 1, 2019, the government filed a motion to stay the current proceedings and to remand the matter to the AFBCMR pursuant to RCFC 52.2. ECF No. 9 ("Def. Mot."). In that motion, the government noted that it had filed the "motion for voluntary remand in lieu of a response to the complaint" and requested that "the parties be allowed to submit a proposed schedule for cross-motions for judgment on the administrative record" if "the Court does not grant this motion." Def. Mot. at 1 n.1.3 On December 16, 2019, Mr. Keltner responded to the government's motion, and the government filed its reply on December 23, 2019. ECF Nos. 12, 13 [hereinafter "Pl. Resp." and "Def. Rep." respectively].4
On March 11, 2020, the Court ordered supplemental briefing. ECF No. 16. The parties submitted their respective supplemental briefs on March 26, 2020. ECF Nos. 17, 18.
On March 31, 2020, the Court heard oral argument on the government's motion for voluntary remand. On March 31, 2020, after giving the government an opportunity to address the Court's concerns at oral argument, the Court issued an order striking the government's supplemental brief as nonresponsive to, and in violation of, this Court's March 11, 2020 Order. ECF No. 19.5
During oral argument,...
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