Pendergrass v. U.S. Dep't of Def.
| Decision Date | 09 September 2020 |
| Docket Number | No. 17-cv-0546 (KBJ),17-cv-0546 (KBJ) |
| Parties | JAMES ANTHONY PENDERGRASS, Plaintiff, v. U.S. DEPARTMENT OF DEFENSE, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
In October of 2011, Plaintiff James Anthony Pendergrass, a U.S. Army veteran, fell through a roof while on a patrol mission in Afghanistan and suffered a traumatic injury. (See Compl., ECF No. 1, ¶ 17.) Pendergrass submitted an application for benefits under the Traumatic Injury Protection Servicemember's Group Life Insurance ("TSGLI") program, alleging an inability to perform several activities of daily living ("ADLs") without assistance, including bathing and dressing, for a period of 258 days. The Army Board for the Correction of Military Records ("the Board") denied Pendergrass's application for TSGLI benefits, and he filed the instant action on March 27, 2017 (see id. ¶ 31 ()), after unsuccessfully challenging the Board's determination through the internal agency review process and exhausting his administrative remedies (see id. ¶ 30). Between October 25, 2017, and May 1, 2018, the agency voluntarily re-reviewed Pendergrass's benefits claim, which was, once again, denied (see Joint Status Report, ECF No. 14, at 1), and this prompted Pendergrass to file an amended complaint on September 14, 2018 (see Am. Compl., ECF No. 16). The parties then filed cross-motions for summary judgment (see Pl.'s Mot. for Summ. J., ECF No. 23; Defs.' Cross-Mot. for Summ. J., ECF No. 24), and the Court referred this matter to a Magistrate Judge for full case management (see Min. Order of Oct. 24, 2019).
Before this Court at present is the Report and Recommendation ("R&R") that the assigned Magistrate Judge, G. Michael Harvey, has filed regarding Pendergrass's motion for summary judgment and Defendants' cross-motion for summary judgment. (See Report and Recommendation, ECF No. 35.)1 The Report and Recommendation reflects Magistrate Judge Harvey's opinion that the Board's decision cannot be considered "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" (id. at 15 (quoting 5 U.S.C. § 706(2)(A))), and, therefore, that Pendergrass's motion for summary judgment should be denied, and Defendants' cross-motion should be granted (see id. at 32).
Specifically, Magistrate Judge Harvey first rejects Pendergrass's argument that the Board evaluated his claim under the wrong evidentiary standard—i.e., adopting a "preponderance of the evidence" standard, as opposed to a "benefit of the doubt" rule. (Id. at 17.) Magistrate Judge Harvey determines that Pendergrass had waived this argument because he did not raise it before the agency (see id. at 19 (citing Nuclear Energy Inst., Inc. v. E.P.A., 373 F.3d 1251, 1297 (D.C. Cir. 2004)), and that, in any event, the benefit of the doubt statute "does not apply to [a] determination, such as that at issue here, made by the Army or the Department of Defense" (id. (quoting Sorkness v. United States, No. 17-cv-1128, 2019 WL 4451990, at *4 (D.D.C. Sept. 17, 2019)).Magistrate Judge Harvey also finds that, regardless, the evidence that Pendergrass was incapable of independently performing ADLs was so limited that his claim would have failed even under the standard that allegedly should have been applied. (See id. at 20.)
Next, the R&R concludes that the Board did not err when it evaluated Pendergrass's claim for benefits by relying on the TSGLI Procedures Guide, which directs that a person is able to "independently perform" an ADL within the meaning of the applicable statute and regulation if he can "perform the activity by using accommodating equipment (such as a cane, walker, commode, etc.) or adaptive behavior[.]" (Id. (internal citation omitted).) According to the R&R, the TSGLI Procedures Guide is not inconsistent with the relevant statutory and regulatory provisions (see id. at 21); indeed, "the phrase 'independently perform' in the statute and regulation is best understood, in context, to mean 'to perform without the assistance of a third party'—not 'without the assistance of a cane or similar equipment'" (id. at 23 (quoting Sorkness, 2019 WL 4451990, at *6))—and thus the TSGLI Procedures Guide's formulation is entitled to deference (see id. at 22-23).
Lastly, Magistrate Judge Harvey explains that the Board's analysis of Pendergrass's medical records was not arbitrary and capricious. (See id. at 23.) Specifically, Magistrate Judge Harvey rejects Pendergrass's contention that the opinion of the Board's own medical advisor, on which the Board relied, was biased and conclusory. For one thing, according to the R&R, all that Pendergrass points to as evidence of bias is the medical advisor's "syntax" (id. at 24); moreover, Magistrate Judge Harvey finds that Pendergrass's contention that the medical advisor's opinion is conclusory is also unsupported, given the level of explanation that is contained in that opinion (see id. at 25-26). Magistrate Judge Harvey also rejects Pendergrass'sargument that the Board could not rely on a lack of any evidence that Pendergrass required personal assistance, given that courts have routinely found reliance on the absence of evidence to be permissible (see id. at 28 (citing Hensley v. United States, 292 F. Supp. 3d 399, 409 (D.D.C. 2018))), and, in any event, the Board further highlighted "evidence in the record that would undermine" a finding that Pendergrass needed personal assistance (id. at 29), and the Board properly discounted later statements of Pendergrass's wife and military subordinate because those statements were "very much at odds" with contemporaneous medical records (id. at 30).
In addition to articulating these conclusions, the R&R also advises the parties that either one of them may file written objections to the Magistrate Judges findings and recommendations (id. at 32), and it further advises the parties that failure to file timely objections might result in waiver of further review of the matters addressed therein (id.). Under this Court's local rules, any party who objects to an R&R filed by a Magistrate Judge must file a written objection with the Clerk of the Court within 14 days of the party's receipt of the R&R. See LCvR 72.3(b). The due date for objections to the Magistrate Judge's R&R in the instant case has passed, and none have been filed.
This Court has reviewed Magistrate Judge Harvey's report, and agrees with its careful and thorough analysis and conclusions. Thus, the Court will ADOPT the R&R in its entirety. Accordingly, Plaintiff's Motion for Summary Judgment will be DENIED; Defendant's Cross-Motion for Summary Judgment will be GRANTED.
A separate Order accompanies this Memorandum Opinion.
v.
UNITED STATES OF AMERICA, et al., Defendants.
Civil Action No. 1:17-cv-0546 (KBJ/GMH)
In this action against the United States of America and various federal agencies ("Defendants" or the "government") under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., Plaintiff James Anthony Pendergrass, a U.S. Army veteran who injured his back while on a tour of duty in Kandahar, Afghanistan, challenges the decision of the Army Board for the Correction of Military Records ("ABCMR" or the "Board") denying his application for benefits under the Traumatic Injury Protection Servicemember's Group Life Insurance ("TSGLI") program. The parties have filed cross-motions for summary judgment along with the administrative record appendix and a supplement to the administrative record appendix.2 Because the ABCMR's decision is not arbitrary or capricious and is supported by substantial evidence, Plaintiff's motion should be denied and Defendants' cross-motion should be granted.3
Congress established the TSGLI program to "provide short-term financial assistance to servicemembers and veterans who have suffered from traumatic injuries." Barker v. United States, 404 F. Supp. 3d 251, 254 (D.D.C. 2019) (citing 38 U.S.C. § 1980A). To receive benefits, the servicemember's injury must have "result[ed] in a qualifying loss" as defined in regulations promulgated by the Secretary of Veterans Affairs pursuant to the statute. 38 U.S.C. § 1980A(a)(1), (b)(1). According to the regulations, a qualifying loss includes "[t]raumatic injury, other than traumatic brain injury, resulting in an inability to independently perform at least 2 Activities of Daily Living (ADL)" that manifests within two years of the injury and lasts for at least 30 consecutive days. 38 C.F.R. § 9.20(d)(4), (f)(20). Those same regulations identify the "[q]ualifying ADLs [as] bathing, continence, dressing, eating, toileting, and transferring in and out of a bed or chair with or without equipment." Holmes v. United States, No. 17-cv-1674 (JDB), 2019 WL 131955, at *1 (D.D.C. Jan 8, 2019) (citing 38 C.F.R. § 9.20(e)(vi)(A)-(F)).
Because neither the statute nor the regulations define the phrase "independently perform," the Department of Veterans Affairs (the "VA") has "issued guidance to the service branches in the Traumatic Injury Protection Under Servicemembers' Group Life Insurance (TSGLI): A Procedural Guide" ("TSGLI Procedures Guide"). White v. United States, No. 17-cv-193 (RMC), 2018 WL 5251740, at *1 (D.D.C. Oct. 22, 2018). The TSGLI Procedures Guide states that an individual is unable to independently perform an ADL when he "REQUIRES assistance" in order to perform it. ECF No. 24-4 at 18. Thus, an individual with a physical (rather than cognitive) injury cannot independently perform an ADL when he "requires hands-on assistance from another person" or"requires someone to be within arm's reach because [his]...
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