Sawyer v. U.S.

• Decision Date: 23 April 1991
• Docket Number: No. 90-5101,90-5101
• Citation: 930 F.2d 1577
• Parties: Matthew H. SAWYER, Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1577

930 F.2d 1577

Matthew H. SAWYER, Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant.

No. 90-5101.

United States Court of Appeals Federal Circuit.

April 23, 1991.

Guy J. Ferrante, King & Everhard, P.C., Falls Church, Virginia, argued, for plaintiff-appellee.

James M. Kinsella, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued, for defendant-appellant. With him on the brief, were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director. Also on the brief, was Captain Robert C. Barber, Office of The Judge Advocate Gen., Dept. of the Navy, Alexandria, Va., of counsel.

Before MARKEY, MAYER and PLAGER, Circuit Judges.

OPINION

MAYER, Circuit Judge.

The United States appeals the judgment of the Claims Court awarding Matthew H. Sawyer disability benefits and ordering correction of his military records to reflect a medical discharge with thirty percent combined disability. 18 Cl.Ct. 860 (1989). We reverse.

Background

During the damp and foggy early morning hours of October 4, 1981, Sawyer was severely injured when he apparently lost control of his motorcycle and crashed as he returned home from his birthday celebration near Coos Bay, Oregon. Other Navy personnel came upon the accident, administered first aid and called for help. The initial police report attributed the accident primarily to speeding and secondarily to wet pavement, but about an hour later, Sawyer's blood alcohol level measured 0.23 percent. The Commander of the Naval Medical Command reported that his blood alcohol reading "is twice that of many state laws allowing prosecution for operating a motor vehicle while under the influence of alcohol and also exceeds the limit indicating intoxication."

Thereafter, the Navy examined Sawyer's fitness for duty and entitlement to disability benefits for which under 10 U.S.C. Secs. 1201-1221 (1988) the secretaries of each military service make the final determination. Section 1201 enables a secretary to authorize disability retirement pay for a service member if the disability is not the result of the member's intentional misconduct or willful neglect, ^* and section 1207 expressly prohibits a secretary from authorizing benefits to any member who becomes unfit for duty because of a physical disability that the secretary determines resulted from his "intentional misconduct or willful neglect."

The regulations promulgated by the Secretary of the Navy pursuant to section 1216(a) define "intentional misconduct or willful neglect" and create review boards to conduct investigations and recommend findings on members' fitness for duty and entitlement to disability benefits. The regulations establish a presumption, rebuttable by clear and convincing evidence, that an injury occurred in the line of duty and list circumstances, among them misconduct, that place a member's injuries outside the line of duty and prevent him from receiving disability benefits. Misconduct includes voluntary intoxication when impairment of physical or mental faculties and the extent of that impairment can clearly be shown and it is clear that the impairment was the proximate cause of injury.

The regulations establish three boards to provide initial, intermediate and final review. The Central Physical Evaluation Board (CPEB) conducts the initial review of the member's service and health records and the line of duty investigation which has been conducted in accordance with the Manual of the Judge Advocate General. That investigation of Sawyer's accident initially recommended a finding that his injuries occurred in the line of duty because he was in authorized liberty status at the time of his accident. But the reviewing authority disapproved that finding and found clear and convincing evidence that Sawyer's injuries resulted from his own misconduct. The CPEB reached the same result and submitted findings that Sawyer was unfit for military service as a result of his own misconduct.

Following the CPEB's decision, Sawyer demanded a formal hearing before the intermediate Regional Physical Evaluation Board (RPEB). The RPEB also found Sawyer unfit for duty because of his own misconduct. The rationale for its conclusion was:

As to the accident investigation itself, the preponderance of the evidence indicates that member drove his motorcycle solo after leaving a bar in the early AM hours and the weather was damp and foggy. He apparently was wearing a helmet. A blood alcohol level shortly after the accident was reported as 0.23% which is indicative of significant intoxication and sufficient impairment of his faculties. There was no evidence of intervening causes in the accident such as other vehicles or a malfunctioning motorcycle. Thus, this board considers member unfit for duty in the United States Navy due primarily to his persisting diabetes insipidus. His disability is considered to be the result of his own misconduct or negligence and is therefore not ratable. (Emphasis added.)

Sawyer then secured review by the third board, the Physical Review Council (PRC), which also ruled that he was not fit for duty because of a physical condition caused by his intentional misconduct or willful neglect. After the Judge Advocate General reviewed the case for legal sufficiency and interposed no objection, the President of the PRC promulgated findings on behalf of the Secretary that resulted in denial of disability benefits.

Sawyer next applied to the Board for Correction of Naval Records (BCNR) to correct his service record and for retroactive and prospective disability benefits. The BCNR, like the review boards, acts on behalf of the Secretary, see 32 C.F.R. Sec. 723.1(a) (1990), and under 10 U.S.C. Sec. 1552(a) (1988), the Secretary may correct a military record when he deems it necessary to correct an error or remove an injustice.

The BCNR reviewed Sawyer's application and supporting materials, his service record and advisory opinions furnished by the Naval Medical Command and the Judge Advocate General. It rejected Sawyer's first contention that the RPEB evaluated the evidence using an erroneous standard, preponderance of the evidence rather than clear and convincing. Alternatively, it examined the evidence for itself, as it was invited to in Sawyer's application and rejected his argument that significant impairment as a result of voluntary intoxication had not been established by clear and convincing evidence. The BCNR decided that there was no reasonable explanation for the accident other than his willful neglect in operating a motor vehicle in a grossly intoxicated state, and that there was insufficient evidence to establish probable material error or injustice. See 32 C.F.R. Sec. 723.3(e)(2) (1990).

Sawyer filed suit in the Claims Court alleging that the BCNR improperly denied him disability retirement. The court held that the review boards used the wrong standard to evaluate Sawyer's conduct and determine his entitlement to disability benefits which rendered the Secretary's denial of benefits based on their actions "a nullity." 18 Cl.Ct. at 869. It agreed with the BCNR's evaluation of the evidence, saying that it was not assailable because Sawyer "could not show by cogent and clearly convincing evidence that the record before the BCNR failed to demonstrate clear and convincing evidence of his misconduct." Id. But it nonetheless ordered that he have disability benefits on the ground that "[t]he decision of the BCNR ... was contrary to law" because "the BCNR erred in evaluating the evidence itself after the specialized disability boards committed legal error." Id. With both the review boards' actions and the BCNR's decision thus invalidated, the court deemed the regulatory presumption that Sawyer's injury occurred in the line of duty unrebutted.

Discussion

Preliminarily, we dispose of the government's argument that the Claims Court had no jurisdiction under the Tucker Act, 28 U.S.C. Sec. 1491 (1988), because Sawyer's claim was not founded on a statute which mandated the payment of money. See United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 2967, 77 L.Ed.2d 580 (1983). We think there is a "source of substantive law ... [which] 'can fairly be interpreted as mandating compensation ...,' " id. at 217, 103 S.Ct. at 2968, which sets out a right to recover "expressly or by implication." Id. at n. 16. According to 10 U.S.C. Sec. 1201, the Secretary may retire a service member "entitled to basic pay" for disability that did not result from his own misconduct or willful neglect, and order that he receive retired pay. The Secretary has no discretion whether or not to pay active duty service members, they are statutorily entitled to the pay of their positions until the entitlement is lawfully terminated. See 37 U.S.C. Sec. 204 (1988); Sanders v. United States, 594 F.2d 804, 810, 219 Ct.Cl. 285 (1979). And once he finds a disability qualifying, he likewise has no discretion whether to pay out retirement funds. The word "may" in section 1201 does not convey discretion whether or not to pay, it merely permits the Secretary to terminate a member's active duty early and tap the Treasury for the disability retired pay. Otherwise, at least under the facts we have, the member would remain on active duty. Either way, he would statutorily be entitled to money, unless the disability is not in the line of duty.

This scheme is similar to 10 U.S.C. Secs. 1181 and 1184 which say the Secretary "may" separate officers for misconduct...