Moreno v. Spencer, Case No. 1:17–cv–01099 (TNM)

• Decision Date: 26 April 2018
• Docket Number: Case No. 1:17–cv–01099 (TNM)
• Citation: 310 F.Supp.3d 83
• Parties: Carlos A. MORENO, Plaintiff, v. Richard V. SPENCER, in his official capacity as Secretary of the Navy, Defendant.
• Court: U.S. District Court — District of Columbia

310 F.Supp.3d 83

Carlos A. MORENO, Plaintiff,

v.Richard V. SPENCER, in his official capacity as Secretary of the Navy, Defendant.

Case No. 1:17–cv–01099 (TNM)

United States District Court, District of Columbia.

Signed April 26, 2018

Jacob Robert Jagdfeld, Johnson Becker, PLLC, Saint Paul, MN, for Plaintiff.

Rhonda Lisa Campbell, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

TREVOR N. MCFADDEN, United States District Judge

Plaintiff Carlos Moreno, a service member in the United States Marine Corps, filed for judicial review of the Government's¹ denial of his claim for benefits under the Servicemembers Group Life Insurance Traumatic Injury Protection Program ("TSGLI"). Compl. ¶¶ 1, 15, ECF No. 1. The Government seeks summary judgment, arguing that the adjudication of Mr. Moreno's claim was not arbitrary, capricious, or otherwise contrary to law under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. Mem. of P. & A. in Supp. of Def.'s Mot. for Summary J. ("Def.'s Mot. for Summary J.") 1, ECF No. 9–1. Upon consideration of the pleadings, relevant law, related legal memoranda in opposition and in support, and the entire record, the Court finds that the Government's determination that Mr. Moreno did not present evidence sufficient to prevail on his claim is supported by the record. Accordingly, the Government's motion will be granted.

I.

On December 3, 2012, while on active duty, Mr. Moreno's right foot was run over by a M777 Howitzer tire, fracturing several of his metatarsal bones. A.R. 97, 107. The following day, he underwent surgery which placed metal pins on his foot. A.R. 97. Immediately after surgery, he wore a splint and was ordered to not bear any weight on his right foot. Id. On December 11, 2012, he transitioned to wearing a short leg cast and using crutches. Id. Approximately two months after surgery, the pins were removed and Mr. Moreno began using a cast boot with crutches. A.R. 354. His prognosis was "poor with regard to return[ing] to active duty" and a treatment note stated that "his care at this point is to provide him with a foot he can ambulate with minimal or no pain. I don't expect he will ever be able to run distances again or do heavy labor without some foot pain." Id. On March 14, 2013, a treatment note documented that Mr. Moreno was able to ambulate independently at 50% weight bearing with crutches. A.R. 356. Notes from physical therapy sessions on March 19, 2013; March 27, 2013; April 2, 2013; April 13, 2013; and April 22, 2013, indicate that Mr. Moreno ambulated into the clinic with crutches and/or a controlled ankle movement boot. A.R. 358–60.

On May 30, 2013, Mr. Moreno submitted an application to the Marine Corps for TSGLI benefits for the amount of $100,000, representing 120 consecutive days of loss of activities of daily living ("ADL"). A.R. 421. The TSGLI provides lump-sum payments for service members who sustain, among others, a traumatic injury that leads to an "inability to independently perform two or more" of activities of daily living, which include bathing, continence, dressing, eating, toileting, and transferring. 38 U.S.C. § 1980A ; 38 C.F.R. § 9.20(e)(7). A service member's losses must be sustained for at least 30 consecutive days, which is compensated with a $25,000 lump sum payout; each additional 30 consecutive day loss period warrants an incremental $25,000 payment with the total potential payout capped at $100,000 for 120 consecutive days of the inability to carry out ADLs. 38 C.F.R. § 9.20(e)(7). Claims are initially submitted to the service member's branch of service, and may be administratively appealed up to three times. Def.'s Mot. for Summary J. 7–8. Mr. Moreno claimed that he was unable to independently bathe and dress between December 3, 2012 and April 19, 2013. A.R. 327. Dr. Dennis Hopkins, who did not treat Mr. Moreno but reviewed his medical records, signed the portion of the benefits application requiring a medical professional statement. A.R. 329.

Mr. Moreno's claim was denied on August 6, 2013 as the "medical documentation d[id] not support [Mr. Moreno's] inability to perform ADLs for 30 days." A.R. 405–07. The letter explained that TSGLI benefits accrue when applicants are "unable to independently perform at least two activities of daily living (ADL)s for at least 30 consecutive days. The claimant is considered unable to perform an activity independently only if he or she requires at least one of the following, without which they would be incapable of performing the task: physical assistance (hands-on), stand-by assistance (within arm's reach), verbal assistance (must be instructed)." A.R. 405. This decision was appealed within the service branch, known as a claim "reconsideration," on October 24, 2013 and was denied on December 12, 2013. A.R. 19–20, 23–38. The denial letter stated that "[t]he available medical documentation did not support that [Mr. Moreno] had at least two Activities of Daily Living (ADLs) for 120 days." A.R. 19.

Mr. Moreno appealed the decision to the second level of administrative review, the TSGLI Appeals Board of the Navy Council of Review ("Appeals Board"). A.R. 9–11. In support of his inability to perform at least two ADLs, he presented a letter from his wife, Kathleen Moreno. A.R. 14. In her letter, Mrs. Moreno described that in the weeks after his surgery, she observed through videoconference Mr. Moreno "struggle to get up and get to the restroom as well as try to figure out how to get food for two weeks" and that "[s]howering was not even possible as he was unable to stand." Id. She also described that once he returned home on February 26, 2013, he "required help undressing to use the restroom as well as redressing when he finished. He required assistance positioning his leg/foot as he sat on the toilet.... He also required help getting in and out of the shower as well as washing his lower extremities. I also assisted my husband in getting dressed as he was unable to get pants on by himself." Id. She also stated that he was "unable to prepare his own food" and "unable to move around freely as he was still on crutches." Id. On December 22, 2015, citing a preponderance of the evidence standard, the Appeals Board denied the appeal because the "evidence does not support that Sergeant Moreno required assistance for two ADLs for a period of 120 days or more." A.R. 2–6.

Mr. Moreno appears to not have appealed to the third level of administrative review and instead filed suit in this Court. Administrative exhaustion is not required for judicial review under the APA for a service member's TSGLI claim. See 38 U.S.C. § 1975 (granting any district court of the United States with original jurisdiction over TSGLI claims); 38 C.F.R. § 9.20 (i)(3) ("Nothing in this section precludes a member from pursuing legal remedies under 38 U.S.C. 1975 and 38 C.F.R. 9.13"); Traumatic Injury Protection Under Servicemembers' Group Life Insurance (TSGLI): A Procedural Guide (version 2.41; Jan. 5, 2018) ("In addition to utilizing the administrative appeals process, members have the right to file suit in federal court to contest an adverse TSGLI decision."); see also Def.'s Reply in Supp. of Mot. for Summary J. ("Def.'s Reply") 2, ECF No. 12.²

II.

In cases reviewing agency action under the APA, motions for summary judgment are not analyzed under Federal Rule of Civil Procedure 56"because of the court's limited role in reviewing the administrative record." Coe v. McHugh , 968 F.Supp.2d 237, 239 (D.D.C. 2013). In APA cases, the Court must decide, "as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review." Id. at 240. The APA requires that the Court "set aside agency action, findings, and conclusions" that are, inter alia , "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2). Judicial review under the arbitrary or capricious standard requires the Court to determine "whether there is ‘such relevant evidence as a reasonable mind might accept as adequate to support’ the agency's finding." United Steel, Paper & Forestry, Rubber Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union v. PBGC , 707 F.3d 319, 325 (D.C. Cir. 2013) (quoting Consolo v. Fed. Mar. Comm'n , 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) ); see also Ass'n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of Fed. Reserve Sys. , 745 F.2d 677, 683 (D.C. Cir. 1984) ("[I]n their application to the requirement of factual support the substantial evidence test [of 5 U.S.C. § 706(2)(E) ] and the arbitrary and capricious test [of 5 U.S.C. § 706(2)(A) ] are one and the same.").³ Stated another way, courts reviewing for substantial evidence "do not ask whether record evidence could support the petitioner's view of the issue, but whether it supports the [agency's] ultimate decision." Florida Gas Transmission Co. v. FERC , 604 F.3d 636, 645 (D.C. Cir. 2010).

At various points in their briefs, both Mr. Moreno and the Government advocate that other standards should apply. The Government notes that this Circuit uses "an unusually deferential application of the arbitrary or capricious standard of the APA" when reviewing decisions by military review boards for the correction of military records. Def.'s Mot. for Summary J. 10. But the cases the Government cites in support—and the cases cited therein—do not involve decisions about TSGLI benefits. See, e.g., Piersall v. Winter , 435 F.3d 319, 324 (D.C. Cir. 2006) (review of non-judicial punishment); Kreis v. Sec'y of Air Force , 866 F.2d 1508, 1514 (D.C. Cir. 1989) (review of decision whether to alter a military record); Havens v. Mabus , 146 F.Supp.3d 202, 214–15 (D.D.C. 2015) (same). Neither party here offers any authority that decisions about TSGLI benefits should receive this "unusually deferential" treatment, and on that basis, this Court will not employ it. See ...