Lopez v. United States
| Decision Date | 10 March 2021 |
| Docket Number | Civil Action No. 20-939 (BAH) |
| Parties | JOSEF L. LOPEZ, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Columbia |
MEMORANDUM OPINION
Plaintiff Josef L. Lopez brought this action for judicial review of an administrative denial of benefits by the United States Department of the Navy under the terms of the Traumatic Injury Protection Program within the Servicemembers Group Life Insurance ("TSGLI"). Plaintiff was seriously harmed in 2006 by a rare immune response to the smallpox vaccine, which was administered to him in connection with his military service and resulted in permanent impairments.
When plaintiff applied for short-term disability benefits under the TSGLI, his claim was denied on the grounds that his adverse immune reaction to the vaccine was not caused by a "traumatic event" covered by that program. After years of appeals, the Board for Correction of Naval Records ("BCNR") eventually concluded that plaintiff's injuries were excluded from the scope of coverage by a regulation, which was in effect at the time of the injury and had been clarified with an amendment promulgated after plaintiff was injured and filed his initial TSGLI claim.
Plaintiff brought this case under the Administrative Procedure Act ("APA"), challenging the BCNR's denial of benefits on various grounds. The government has filed a motion to dismiss, arguing that plaintiff has failed to state a claim for which relief can be granted and that this Court lacks jurisdiction over one of his claims. Def.'s Mot. to Dismiss ("Def.'s Mot."), ECF No. 14. For the reasons set forth below, the government's motion to dismiss is granted.
The facts and procedural history relevant to defendant's pending motion are discussed below.
Plaintiff was a reservist radio operator in the United States Marine Corps. Am. Compl. at 1, ¶ 6, ECF No. 11. In September 2006, plaintiff received orders to deploy to Iraq and received a smallpox vaccine as part of his mandatory pre-deployment training. Id. ¶ 6. Soon after deploying to Iraq, plaintiff started to lose the ability to walk and became increasingly paralyzed over the next day. Id. ¶ 7. He was placed in a medically induced coma and evacuated to a military hospital in Germany, and then transported to Walter Reed National Military Medical Center ("Bethesda Naval") for treatment. Id. ¶¶ 7-9. Plaintiff was diagnosed with Acute Disseminated Encephalomyelitis, an extremely rare complication sometimes associated with vaccination, in which a person's immune system attacks the nervous system. Id. ¶ 8.
At Bethesda Naval, plaintiff received treatment and responded positively. Id. ¶ 13. His nervous system was permanently damaged, however, and he has lingering deficits. Id. ¶ 14. Plaintiff continues to experience physical and cognitive symptoms, including short-term memory loss, poor balance, and difficulty controlling his bowels and bladder. Id. ¶¶ 14-15.
Plaintiff submitted a claim with the Department of Veterans Affairs ("VA") for long-term disability benefits, on February 20, 2008, which was subsequently approved on July 10, 2009. Am. Compl. ¶ 16 . The VA assigned defendant a 90% disability rating based on the conditions associated with him military service, with a corresponding monthly entitlement amount of $1,604. VA Disability Approval Letter (July 10, 2009) at 1-2. The government indicates that plaintiff was "placed on the Permanent Disability Retired List, which allows him to receive all the benefits and healthcare that designation encompasses." Def.'s Mem. Supp. Mot. to Dismiss ("Def.'s Mem.") at 17 n.4, ECF No. 14-1.
Plaintiff also filed a claim for short-term disability benefits under the TSGLI. Congress established TSGLI in 2005 to provide monetary assistance for service members who suffer serious traumatic injuries. 38 U.S.C. § 1980A. TSGLI provides payments of $25,000 per qualifying 30-day period (up to a total of 120 days, for a maximum benefit of $100,000) for the short-term recovery needs of those who qualify. Id.
To be eligible for TSGLI benefits, a service member must satisfy various legal criteria, depending on the type of injury suffered. 38 U.S.C. § 1980A; 38 C.F.R. § 9.20. To make a claim for TSGLI benefits, a service member must submit an application to his service—here, the United States Marine Corps. See Am. Compl. ¶ 23. After receiving the claim materials, the service determines whether the insured member is covered by the TSGLI program and whether he sustained a qualifying loss. 38 U.S.C. § 1980A(f); 38 C.F.R. § 9.20(g). The service's determination is governed by 38 U.S.C. § 1980A, 38 C.F.R. § 9.20, and the TSGLI Procedures Guide. A claimant may appeal an adverse determination with the relevant service, 38 C.F.R. § 9.20(i), and may seek federal court review pursuant to 38 U.S.C. § 1975.
Plaintiff submitted his claim for TSGLI benefits, on April 8, 2008, to the TSGLI office of the United States Marine Corps, and the office denied his claim in a letter dated May 13, 2008. Am. Compl. ¶ 25 (citing id., Ex. 5, Claim Denial Letter (May 13, 2008), ECF No. 11-5). Afterappealing this denial, id. ¶ 31 (citing id., Ex. 6, Lopez's First Appeal Letter (May 11, 2009), ECF No. 11-6), the Marine Corps TSGLI office denied plaintiff's claim on the ground that his "loss [was] determined NOT to be the result of a traumatic event," id. ¶ 32 (quoting id., Ex. 7, First Appeal Denial Letter (May 26, 2009), ECF No. 11-7). Plaintiff then received another letter further explaining the decision, stating that his claim was denied because his loss was the result of his reaction to the smallpox vaccine rather than a "traumatic event" as defined by regulation as "the application of external force, violence, chemical, biological, or radiological weapons, or accidental ingestion of a contaminated substance causing damage to a living being." Id. ¶ 33 (quoting id., Ex. 8, Letter Explaining Denial of First Appeal (June 2, 2009), ECF No. 11-8).
Plaintiff filed another appeal on May 31, 2010, id. ¶ 34 (citing id., Ex. 9, Lopez's Second Appeal Letter (May 31, 2010), ECF No. 11-9), and the TSGLI Appeals Board again rejected plaintiff's claim on June 15, 2010, this time concluding that the applicable regulations explicitly excluded his injury from TSGLI coverage, id. ¶ 35 (citing id., Ex. 10, Second Appeal Denial Letter (June 15, 2010), ECF No. 11-10). The cited regulation expressly excludes from coverage losses due to "preventive medical procedures such as inoculations." Second Appeal Denial Letter (June 15, 2020) at 2 (quoting 38 C.F.R. § 9.20(e)(3)(i)(C)).
Plaintiff then appealed, on May 18, 2012, the denial of TSGLI benefits to the Board for Correction of Naval Records ("BCNR"), but the case was administratively closed, without prejudice, on April 9, 2013, because the BCNR could not obtain plaintiff's medical records from the VA. Id. ¶ 36 (citing id., Ex. 11, Lopez's Third Appeal Letter (May 18, 2012), ECF No. 11-11); id., Ex. 12, BCNR Administrative Closure Letter, ECF No. 11-12).1 Two years later, on June 1, 2015, plaintiff appealed again to the BCNR, this time attaching his medical records. Id.¶ 37 (citing id., Ex. 13, Lopez's Renewed Third Appeal Letter (June 1, 2015), ECF No. 11-13). The BCNR denied this appeal in a letter, dated May 20, 2016, again on the grounds that plaintiff's injury was specifically excluded by regulation from the scope of the TSGLI. Id. ¶ 38 (citing id., Ex. 1, BCNR Appeal Denial (May 20, 2016), ECF No. 11-1). The BCNR relied on the exclusion of injuries caused by inoculations under 38 C.F.R. § 9.20(e)(3). BCNR Appeal Denial (May 20, 2016) at 3-4.
Plaintiff initiated this lawsuit on April 4, 2020 and filed an amended complaint on August 19, 2020, within a month of defendant's filing of the administrative record. Plaintiff claims that the TSGLI Appeals Board and the BCNR improperly denied his claim based on a regulation, 38 C.F.R. § 9.20(e)(3), that came into effect after his claim was filed. Am. Compl. ¶ 42. According to plaintiff, the BCNR committed legal error by applying the wrong regulation in reviewing his claim. Id. ¶¶ 43. Plaintiff further alleges that the regulation itself is arbitrary and capricious. Id. ¶¶ 26-30. Defendant's pending motion to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), was filed in October 2020, and briefing was completed in December 2020. This motion is now ripe for resolution.
The legal standards for motions to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure are described below, as well as the substantive legal standard for plaintiff's claims under the Administrative Procedure Act ("APA").
"Article III of the Constitution prescribes that '[f]ederal courts are courts of limited subject-matter jurisdiction' and 'ha[ve] the power to decide only those cases over which Congress grants jurisdiction.'" Bronner v. Duggan, 962 F.3d 596, 602 (D.C. Cir. 2020)(alterations in original) (quoting Al-Zahrani v. Rodriguez, 669 F.3d 315, 317 (D.C. Cir. 2012)); see Gunn v. Minton, 568 U.S. 251, 256 (2013) . Federal courts, therefore, have a corresponding "independent obligation to ensure that they do not exceed the scope of their jurisdiction" and "must raise and decide jurisdictional questions that the parties either overlook or elect not to press." Henderson v. Shinseki, 562 U.S. 428, 434 (2011). Absent subject-matter jurisdiction over a case, the court must dismiss it. See Arbaugh v. Y & H...
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