Walls v. U.S.

• Citation: 582 F.3d 1358
• Decision Date: 29 September 2009
• Docket Number: No. 2008-5179.,2008-5179.
• Parties: Jeffrey G. WALLS, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

582 F.3d 1358

Jeffrey G. WALLS, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 2008-5179.

United States Court of Appeals, Federal Circuit.

September 29, 2009.

Rebecca A. Koch, Kirkland & Ellis LLP, of Washington, DC, argued for plaintiff-appellant. With her on the brief was Colin R. Kass.

Kent Kiffner, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. On the brief were Jeanne E. Davidson, Director, Steven J. Gillingham, Assistant Director, and Douglas G. Edelschick, Trial Attorney. Of counsel on the brief was David W. Fink, Litigation Attorney, Office of the Judge Advocate General, United States Department of the Navy, of Washington, DC.

Before NEWMAN, GAJARSA, and DYK, Circuit Judges.

Opinion for the court filed by Circuit Judge DYK.

Dissenting opinion filed by Circuit Judge NEWMAN.

DYK, Circuit Judge.

Jeffrey G. Walls ("Walls") appeals from a judgment of the United States Court of Federal Claims. The Court of Federal Claims rejected Walls's contention that he was improperly transferred to the Fleet Reserve after his active duty service in the United States Navy, and rejected Walls's claim for back pay based on his allegedly improper transfer. The Court of Federal Claims also rejected Walls's alternative claim for back pay based on his alleged performance of military duties during a period of medical treatment after his transfer. Walls v. United States, No. 05-533C, 2008 WL 4708115 (Fed.Cl. July 30, 2008). We affirm-in-part, vacate-in-part, and remand.

BACKGROUND

Walls asserts two separate claims. For clarity we describe them separately.

I The Improper Transfer Claim

Walls served on active duty in the United States Navy ("Navy") from September 2, 1980, through September 30, 2000. After twenty years of active duty service, enlisted personnel in Walls's pay grade could not re-enlist, but instead could either separate from the Navy, retire for disability, or transfer to the Fleet Reserve.¹ On September 30, 2000, Walls was transferred to the Fleet Reserve. Walls contends that the transfer was improper.

Walls agrees that under the Navy's regulations, such a transfer to the Fleet Reserve "may only be deferred [1] if the member is hospitalized or [2] a medical board ["MEB"] report has been accepted by the President, PEB ["Physical Evaluation Board"] for disability evaluation processing. 10 U.S.C. § 640 applies."² U.S. Dep't of Navy, Sec'y of the Navy Instr. 1850.4D, Department of the Navy Disability Evaluation Manual § 3710 (Dec. 23, 1998) ("SECNAVINST"); see also Military Personnel Manual 1830-40, Transfer to the Fleet Reserve and Release from Active Duty (March 27, 2000) ("MILPERSMAN"); MILPERSMAN 1830-30, Physical Examination in Connection with Retirement, Transfers to Fleet Reserve, and as a Fleet Reservist. As discussed in greater detail below, the PEB process referenced in the regulations is designed to determine whether a service member has become permanently disabled and should be separated or retired for disability, and the referenced statute (10 U.S.C. § 640) exclusively concerns separation and retirement for disability.³

In past cases we have considered claims that injured service members were improperly denied disability retirement. See, e.g., Fisher v. United States, 402 F.3d 1167 (Fed.Cir.2005) (en banc in part); Heisig v. United States, 719 F.2d 1153 (Fed.Cir.1983). However, Walls does not claim that he was permanently disabled or that he was entitled to disability retirement. He asserts that he should have been given corrective medical treatment before his transfer to the Fleet Reserve.

In this respect, the factual basis for Walls's improper transfer claim is relatively straightforward. He alleges that during his Navy service he was assigned to an aircraft carrier, and that around 1984 he injured his knee and back during an aircraft launch accident. Am. Compl. ¶¶ 28-29. Walls alleges that an F-18 fighter jet was launched while Walls was on deck, blowing him across the flight deck and causing injuries. Id. He asserts that he suffered permanent damage from the incident, and that for years thereafter he suffered pain. The pain increased about eighteen months before the date of his separation. As part of the process for transferring to the Fleet Reserve, Walls had a physical in June 2000 "to permit correction of any minor physical defects or identification of those requiring processing for disability retirement, if disability retirement is indicated, prior to the date otherwise scheduled for retirement." See MILPERSMAN 1830-030, at 1. The physician's report indicated Walls had "[r]ecurrent back pain" and a "`[t]rick' or locked knee" but that Walls was in "good" health and taking no medications. In early August 2000, Walls experienced knee and back pain and was examined by Dr. Cullom, a Navy physician. In late August 2000, Walls received an MRI scan that showed he had scoliosis and mild to moderate spinal stenosis; a June 1999 spinal x-ray had also shown "significant" scoliosis. A medical report from Walls's September 2000 appointment with Dr. Helm, a neurosurgeon, indicated that Walls did not require surgery and that chiropractic care and pain management might be helpful. Walls was seen by Dr. Cullom again after his MRI scan. Walls does not assert that Dr. Cullom thought he was eligible for disability retirement; instead, Walls alleges that Dr. Cullom "told him that he was not fit to retire due to his injuries" and that "she would recommend . . . that he be placed on `medical hold,' which would keep him on active duty past his scheduled retirement date so that he could be adequately treated for his medical problems before his retirement." Am. Compl. ¶ 39. Walls argues that he should not have been transferred until the necessary treatment was completed.

In November 2000, Walls petitioned the Board of Correction for Naval Records ("BCNR" or "corrections board") for correction of his service records, requesting "to remain on active duty in a medical hold status, until my injury can be corrected" and asserting that he "was release[d] from the military with a[n] injury that should have been corrected." In August 2001, the corrections board denied Walls's petition. Walls requested reconsideration by the corrections board, and the corrections board denied this request in November 2001. Walls again requested reconsideration by the corrections board, providing additional evidence, and in December 2002 the corrections board again denied his request, finding that the new evidence was not material. In April 2003, Walls again unsuccessfully requested that the corrections board reconsider its decision not to extend his release from active duty by six months and not to award him back pay for those six months.⁴

In May 2005, Walls filed a complaint in the Court of Federal Claims, asserting claims that his transfer should have been deferred pending medical treatment and requesting back pay from September 30, 2000, through March 30, 2001, as well as additional relief. See Compl. ¶ 10 (alleging Walls's "retirement should have been withheld until his medical condition could be corrected or resolved by the United States Navy"); Am. Compl. ¶¶ 39, 58 (alleging that Walls's BCNR petition requested retention "on medical hold status pending the completion of his medical treatment"). The Court of Federal Claims remanded Walls's case to the corrections board for further development of the record in August 2005.

In May 2006, the BCNR issued its remand decision, finding that Walls had not been hospitalized prior to his transfer, that no MEB had been initiated for him, and that he had been fit to reasonably perform his duties. The corrections board found that there was no credible evidence of Walls's "inability to perform military duty," and thus that there was "no basis for initiating a medical board." App. 94. The corrections board also found that even if an MEB had been initiated, it was unlikely that Walls could have rebutted the presumption of fitness that applies to enlisted service members within twelve months of their mandatory separation or transfer. Id.; see SECNAVINST 1850.4D, § 3305(b)(4).⁵

Walls filed an amended complaint in the Court of Federal Claims in August 2007, seeking back pay and allowances from September 30, 2000, through mid-May 2001, as well as injunctive relief ordering correction of his naval records "to properly reflect his service to the Navy through the middle of May 2001" and attorney fees and costs. Am. Compl. ¶ 7. Walls alleged that the Navy had violated its own regulations in failing to extend his active duty service by placing him on "medical hold" pending an MEB and PEB review process. As an attachment to his amended complaint, Walls provided a new sworn declaration dated August 8, 2007, that was not presented to the corrections board.

The United States ("the government") moved to dismiss Walls's complaint, or in the alternative for judgment on the administrative record. The Court of Federal Claims concluded that before Walls's transfer he had not been hospitalized, that no MEB report had been accepted by the PEB, and that there had been no violations of regulations in failing to convene an MEB. The court found that Walls failed to state a claim on which relief could be granted.

II The Full-Time Duty Claim

Walls alleges that after his transfer he was admitted to a hospital. Walls claims, assuming that he was properly transferred to the Fleet Reserve, that he is entitled to back pay for the period from October 2000 to May 2001 for performing "other full-time duty" under 37 U.S.C. § 204(a)(2). He asserts that while he received treatment at the National Naval Medical Center ("NNMC") during this period, he performed military duties at the NNMC. Walls initially presented this claim to the Court of Federal Claims, which remanded to the BCNR to consider the claim in...