Pipes v. United States
| Decision Date | 13 October 2017 |
| Docket Number | No. 15-1163,15-1163 |
| Parties | MALCOLM PIPES, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
10 U.S.C. § 1204 ();
25 U.S.C. § 2501 (Statute of Limitations);
28 U.S.C. § 1491 (Tucker Act Jurisdiction);
Air Force Instruction ("AFI");
AFI 10-248 (Fitness Program);
AFI 36-2254 (Reserve Personnel Participation);
AFI 36-2910 ();
AFI 36-3212 (Physical Evaluation for Retention, Retirement, and Separation);
AFI 48-123 (Medical Examinations and Standards);
Rules of the United States Court of Federal Claims ("RCFC") 12(b)(1) (Subject Matter Jurisdiction);
RCFC 12(b)(6) (Failure to State a Claim Upon Which Relief Can Be Granted);
RCFC 52.1 (Judgment on the Administrative Record).
Matthew E. Hughes, Tully Rinckey PLLC, Washington, D.C., Counsel for Plaintiff.
David Alan Levitt, United States Department of Justice, Civil Division, Washington, D.C., Counsel for the Government.
In 1983, Staff Sergeant ("SSgt") Malcolm Pipes enlisted in the United States Air Force ("USAF"). Compl. ¶ 7. Mr. Pipes served in the USAF for approximately sixteen years: seven on active duty and nine in the USAF Reserve. Compl. ¶ 7; see also AR at 39. Most recently, SSgt Pipes served as a Transportation Officer/Logistics Readiness Officer for the 917th Reserve Wing at Barksdale Air Force Base in Louisiana. Compl. ¶ 7.
On May 26, 2004, the USAF began to phase in stringent physical fitness standards for USAF Reserve, requiring:
[a]ll members of the Air Force must be physically fit to support the Air Force mission. Health benefits from an active lifestyle will increase productivity, optimize health, and decrease absenteeism while maintaining a higher level of readiness. The goal of the Fitness Program (FP) is to motivate all members to participate in a year-round physical conditioning program that emphasizes total fitness, to include proper aerobic conditioning, strength/flexibility training, and healthy eating. Commanders and supervisors must incorporate fitness into the AF culture to establish an environment for members to maintain physical fitness and health to meet expeditionary mission requirements and deliver a fit and ready force. The annual fitness assessment provides commanders with a tool to assist in the determination of overall fitness of their military personnel.
3/21/16 Pl. Resp. Ex. 1 at 1-2 (Air Force Instruction ("AFI") 10-248, dated May 26, 2004) ("AFI 10-248").
To serve in the USAF Reserve, an annual fitness assessment ("FA") was required that included a "1.5 mile run for aerobic assessment." AFI 10-248 at 2, 45. In a memorandum, dated October 1, 2004, SSgt Pipes' Flight Commander informed SSgt Pipes that:
Members who score in the Marginal or Poor fitness levels will be entered into the Self-paced Fitness Improvement Program (SFIP)2 and the information will be documented on the AF Form 108 and maintained until the member scores greater or equal to numerical score, 75.
On November 7, 2004,3 SSgt Pipes failed the FA and received a "poor" rating. AR at 30. As a result, he received verbal counseling, was enrolled in the SFIP that same day, and ordered to begin running five days per week. Compl. ¶ 9, 13; see also AR at 17.
On August 7, 2005, SSgt Pipes failed a second FA and received additional verbal counseling. Compl. ¶ 14; see also AR at 30.
On November 18, 2005, SSgt Pipes saw his private physician, who observed that SSgt Pipes' blood pressure was 165/105; several days later, his blood pressure dropped to 124/90. Compl. ¶ 15.
On February 5, 2006, SSgt Pipes was evaluated by a doctor from the 917th Medical Squadron and cleared for continued participation in the SFIP. AR at 19-20. That same day, SSgt Pipes failed a third FA and became ill during the running portion of the test. Compl. ¶ 16; see also AR at 30. Later that day, a USAF physician noted in SSgt Pipes' medical record that his blood pressure ranged between 151/94, when sitting, and 146/99, when standing. AR at 104. SSgt Pipes' Squadron Commander expressed concern about SSgt Pipes' high blood pressure and was concerned a vigorous fitness program could lead to injury, stroke, and heart attack. AR at 56-57. None of these observations were disclosed to SSgt Pipes. Compl. ¶ 16.
On May 7, 2006 and July 10, 2006, SSgt Pipes failed two more FAs. Compl. ¶¶ 17, 18; see also AR at 30.
On September 3, 2006, SSgt Pipes became ill while running and experienced "a headache, difficulty breathing, dizziness, an impression of being overheated, and a general feeling of malaise." Compl. ¶ 19. These symptoms continued into the night, requiring him to go to the hospital around 2:00 AM on September 4, 2006. Compl. ¶ 19. SSgt Pipes was diagnosed with a Cerebrovascular Accident,4 i.e., a stroke. AR 211-33. On September 6, 2006, SSgt Pipes informed the USAF of this diagnosis. Compl. ¶ 21.5
On December 5, 2006, the USAF informed SSgt Pipes that he was not eligible to receive disability benefits, because his stroke did not occur during inactive duty training ("IDT").6 Compl. ¶ 23; 10/21/16 Gov't Resp. App'x 1 at 5-6.
On February 4, 2007, a USAF doctor examined SSgt Pipes and reported that:
On that same day, a Technical Sergeant informed SSgt Pipes that he was not eligible to receive disability retirement benefits. Compl. ¶ 24; see also AR at 78.
On February 4, 2007, SSgt Pipes signed a Medical Evaluation ("ME") For Military Duty Fact Sheet that, in relevant part, states:
I understand that if not approved for retention in the Air Force Reserve because of a medically disqualifying non-duty related medical/dental condition(s), I'm eligible to have my case reviewed by the Physical Evaluation Board (PEB) solely for a fitness determination. By completing and signing the "PEB Election Form," I am making my election to have or not have my case reviewed by the PEB.
The Physical Evaluation Board ("PEB") Election Form ("PEB Election Form"), in relevant part, states:
AR at 146 (internal correction omitted).
On February 4, 2007, SSgt Pipes initialed next to the block of the PEB Election Form that begins "I do not desire to have my case referred to the IPEB." AR at 146. As a result, no review was performed by the PEB. Compl. ¶ 26.
On November 4, 2007, SSgt Pipes' Commander informed the United States Air Force Reserve Command ("AFRC") that SSgt Pipes "has not been able to perform any duties since his stroke" and therefore should be "medically retired." AR at 140-41.
On November 26, 2007, SSgt Pipes was determined to be "medically disqualified for continued military duty." AR at 139.
On December 20, 2007, pursuant to AFI 36-3209, paragraph 3.14, the USAF initiated a "separation action" to discharge SSgt Pipes from the Air Force Reserve and assigned him legal counsel. AR at 133. In lieu of an administrative discharge, the USAF informed SSgt Pipes that he was eligible for retirement. AR at 133.
On January 30, 2008, the USAF received from SSgt Pipes an "application for transfer to the Retired Reserve . . . in lieu of administrative discharge for physical disqualification." AR at127. The USAF noted that SSgt Pipes had "over 16 years of satisfactory services and [was] eligible for early Reserve retirement under Title 10, USC Section 12731."11 AR at 127.
On September 15, 2008, SSgt Pipes was assigned to the Retired Reserves, but the assignment was backdated, effective September 4, 2006. AR at 126.12
On September 23, 2009, SSgt Pipes filed an application for benefits with the Department of Veteran Affairs ("VA"). Compl. ¶ 29. In September 2010, the VA informed SSgt Pipes that his application for VA benefits demonstrated he was not evaluated for Reserve Service. Compl. ¶ 30.
On or about October 5, 2010, SSgt Pipes obtained a copy of his USAF medical records. Compl. ¶ 30...
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