Pipes v. United States

• Decision Date: 11 September 2020
• Docket Number: No. 15-1163C,15-1163C
• Parties: MALCOLM PIPES, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

MALCOLM PIPES, Plaintiff, v. UNITED STATES, Defendant.

No. 15-1163C

United States Court of Federal Claims

September 11, 2020

FOR PUBLICATION

Keywords: Military Pay; Disability Retirement; Inactive-Duty Training; 10 U.S.C. § 101(d)(7); Uniform Code of Military Justice; Self-Paced Fitness Improvement Program; Motion for Judgment on the Administrative Record; RCFC 52.1.

Cheri L. Cannon, Tully Rinckey PLLC, Washington, D.C., for the plaintiff.

Reta E. Bezak, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, D.C., Hank D. Nguyen, Air Force Legal Operations Agency, of counsel, for the defendant.

MEMORANDUM OPINION

HERTLING, Judge

The plaintiff, Malcolm Pipes, seeks review of the decision by the Air Force Board for Correction of Military Records ("AFBCMR" or "the Board"), on remand from the Court of Appeals for the Federal Circuit, denying him disability-retirement pay and benefits. The Board found that the plaintiff was not in inactive-duty training ("IDT") status at the time of his injury and thus was not injured in the line of duty, as required by the relevant statute to receive disability-retirement pay and benefits. The parties cross-move for judgment on the administrative record.

Although the Federal Circuit's opinion does not expressly answer the question of whether the plaintiff was in IDT status at the time of his injury, the Board's conclusion that he was not is inconsistent with the Federal Circuit's decision. Accordingly, the Board's conclusion denying the plaintiff benefits on that basis is vacated as arbitrary and capricious. That determination does not end the inquiry. The issue remains whether the plaintiff was required to satisfy the administrative prerequisites to be on IDT. Because the Board did not address whether the requirements of the Air Force Manual apply to the plaintiff, the matter must be remanded for further consideration. Accordingly, the Court defers a final determination on the cross-motions for judgment on the administrative record.

I. BACKGROUND

A. Facts

The Court relies on the decision by the Federal Circuit for a recitation of the facts:

Pipes enlisted in the United States Air Force ("USAF") in 1983. He served on active duty for seven years and in the United States Air Force Reserve for nine years. In 2004, while Pipes was in the Reserve, the Air Force established stringent physical fitness standards, which subjected Reserve members to an annual scored fitness assessment. All members of the Air Force were notified that they must be physically fit to support the Air Force mission. . . . Members who failed to satisfy physical fitness requirements would be subject to discharge. On October 1, 2004, Pipes was informed by his Flight Commander that members who score at the marginal or poor fitness levels would be entered into the Self-paced Fitness Improvement Program ("SFIP"). On November 7, 2004, Pipes failed his fitness assessment which was conducted during a scheduled Unit Training Assembly ("UTA"). UTA is prescribed by the Secretary of the Air Force as a form of [IDT.] . . . During that UTA, Pipes was formally enrolled in the SFIP and was given a written order from his Commander to "exercise at least five times per week," performing the exercises specified by the SFIP, which included pushups, crunches, and a 1.5 mile run.

Shortly before that first fitness assessment, Pipes began receiving elevated blood pressure readings. Though Pipes continued his engagement in the SFIP, he informed his Commander that he was having blood pressure issues and trouble with the running portion of the SFIP. Pipes' Squadron Commander expressed concern about Pipes' high blood pressure and was concerned a vigorous fitness program could lead to injury, stroke, and heart attack. However, in August 2005, Pipes failed a second fitness assessment and was once again given orders to exercise five days per week to address his repeat fitness assessment failures.

On January 6, 2006, due to his continuously elevated blood pressure readings, Pipes reported high blood pressure as a concern on his annual USAF physical screening. On February 5, 2006, Pipes was evaluated by Dr. Granger, a USAF medical doctor. Pipes produced medical records to Dr. Granger from his civilian physician showing elevated blood pressure as well as a USAF form completed by his civilian physician stating her concerns regarding Pipes' continued participation in the SFIP. Dr. Granger's evaluation demonstrated that Pipes had elevated blood pressure, which rangedbetween 151/94 when sitting to 146/99 when standing. Further, Dr. Granger rendered a diagnosis of hypertension and obesity. Unlike Pipes' civilian physician, Dr. Granger did not relay this health information to Pipes and instead communicated to him the need for healthy living and for additional exercise. According to Pipes' Commander, the standing policy of his wing unit was to bar any member observed with untreated hypertension from exercise in a SFIP. Under the existing command, the medical squadron was ordered to advise the Commander of any member who should so be barred. In Pipes' case, his Commander concluded that the medical squadron failed to follow the standing orders. As a result, Pipes was not excused from the SFIP he had been ordered to perform.

After being cleared for continued participation in the SFIP by Dr. Granger, Pipes participated in a third fitness assessment that same day. However, Pipes became ill during the run portion and was unable to complete the assessment. Pipes participated in additional fitness assessments on May 7, 2006 and July 10, 2006, both of which he also failed. After the July 2006 fitness assessment, Pipes reported to Major Lara Rowlands, the unit fitness advisor, that he was running in accordance with the SFIP, but that he was not seeing any improvement and that he often felt ill after running. Nevertheless, the medical squadron again failed to remove Pipes from the SFIP.

On September 3, 2006, Pipes became ill while running in accordance with the SFIP and experienced "a headache, difficulty breathing, dizziness, an impression of being overheated, and a general feeling of malaise." . . . These symptoms continued into the night, requiring Pipes to go to the hospital around 2:00 AM on September 4, 2006. Pipes was diagnosed with a Cerebrovascular Accident, i.e., a stroke.

On September 6, 2006, Pipes contacted his unit concerning the stroke. On December 5, 2006, without performing a Line of Duty ("LOD") determination, the USAF informed Pipes that "he was not eligible to receive disability benefits, because his stroke did not occur during inactive duty training." . . .

On November 26, 2007, Pipes was determined by the USAF to be medically disqualified for continued military duty. However, in lieu of an administrative discharge, the USAF informed Pipes that he was eligible for retirement. On January 30, 2008, Pipes applied for transfer to the Retired Reserves in lieu of administrative discharge for physical disqualification. On September 15, 2008, Pipes was assigned to the Retired Reserves, and the assignment wasbackdated, effective September 4, 2006. In October 2008, Pipes was informed that his retirement from the USAF was approved. However, Pipes, who was forty-seven years old at the time, would not be able to obtain the approved retirement benefits until he was sixty years old.

On or about October 15, 2010, Pipes obtained a copy of his USAF medical records. Upon review of these records, Pipes learned for the first time that during his February 4, 2006 medical clearance exam, the USAF Medical Examiner observed that his blood pressure was abnormally high, rendered a diagnosis of untreated hypertension, but nonetheless cleared him for continued participation in the SFIP and his fitness assessments.

On August 10, 2011, Pipes filed an Application For Correction Of Military Record with the [AFBCMR] requesting a LOD determination for disability retirement instead of his already-approved regular retirement. On June 4, 2012, the USAF Office of the Assistant Secretary for Military and Reserve Affairs issued a Memorandum for the AFBCMR recommending denial of the change in records to reflect Pipes was permanently medically retired. On July 5, 2012, Pipes responded to the June 4, 2012 Memorandum by providing supplemental documentation to the AFBCMR. On February 28, 2013, the AFBCMR denied Pipes' Application for Correction of Military Records, finding that he was not entitled to disability retirement based on a determination that he did not demonstrate the existence of a material error or injustice. On April 30, 2013, and again on July 3, 2013, Pipes requested reconsideration by the AFBCMR to remedy the decision denying him the ability to be permanently and medically retired as of 2007. On August 11, 2014, the USAF Office of the Assistant Secretary affirmed the AFBCMR's denial.

Pipes v. United States, 791 F. App'x 910, 911-13 (Fed. Cir. 2019) (citations omitted). These facts are not in dispute.

B. Procedural History

Following the Board's denial of disability-retirement pay and benefits, the plaintiff filed a complaint in this court in October 2015. He alleged that he was on IDT at the time of his stroke and thus entitled to a disability retirement under 10 U.S.C. § 1204. The court remanded the case in September 2017 to the Board for reconsideration. On remand, an Air Force medical advisor concluded that it was "plausible that [the plaintiff's] participation in vigorous training for his Fitness Assessment, during the 12-hour cycle of time between his alleged running activity and onset of stroke symptoms, contributed to the occurrence of a stroke on or about [September 4, 2006]." (ECF 57, Administrative Record ("AR") at 13-14.) The Board determined that theplaintiff's participation in SFIP could have contributed to his stroke but denied relief because the SFIP was not undertaken in the line of duty. (Id. at 17.) This court then held that the Board's...