White v. United States
| Decision Date | 05 May 2020 |
| Docket Number | Civil Case No. 16-2509 (RJL) |
| Parties | DAVID E. WHITE, JR., Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Columbia |
[Dkt. ## 18, 19]
Plaintiff Captain David E. White, Jr. ("plaintiff" or "White"), an Army veteran who was injured during a suicide bombing in Afghanistan on March 2, 2012, brings suit against the United States ("defendant" or "the Government"), challenging a U.S. Army Board for the Correction of Military Records' ("ABCMR" or "Board") denial of his application for additional Traumatic Servicemembers Group Life Insurance ("TSGLI") benefits for his inability to perform activities of daily living ("ADL") for at least 90 days following a traumatic injury. Plaintiff seeks an additional award of appropriate TSGLI program benefits, worth $25,000, and an award of attorney's fees and costs based on the Government's alleged violations of the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq. See First Am. Compl. ¶¶ 21-25 [Dkt. #14]. Before this Court are the parties' Cross-Motions for Summary Judgment. See Pl.'s Motion for Summary Judgment [Dkt. #18] ("Pl.'s Mot."); Def.'s Cross-Motion for Summary Judgment [Dkt. # 19] ( ). For the following reasons, defendant's motion for summary judgment [Dkt. # 19] is GRANTED, and plaintiff's motion [Dkt. # 18] is DENIED.
Plaintiff is a former active-duty Army captain, now in the reserves, who was traumatically injured by an improvised explosive device on March 2, 2012 while serving in Afghanistan. Pl.'s Mot. at 1. He suffered injuries to his right arm as a result of the blast, including a right arm fracture and lacerations. Pl.'s Mot. at 1 (Administrative Record ("AR") 250); Def.'s Mot. at 1. He spent 18 days in a hospital recovering from his wounds. Pl.'s Mot. at 1 (AR 140-60); Def.'s Mot. at 5 (AR 1-13),
White subsequently filed several claims under the TSGLI benefits program, requesting benefits for his injuries and loss of ADLs. The Government does not dispute that, as an active duty soldier serving in the U.S. Army, he was eligible to apply for TSGLI benefits. See Def.'s Mot. at 5 (AR 1-13). White filed his first claim for TSGLI benefits on May 16, 2012, seeking benefits for inpatient hospitalization for at least 15 days due to a traumatic injury. Def.'s Mot. at 5 (AR 1). In support of his claim, he included a form completed by his certifying medical provider, Dr. Stephanie Susskind, certifying that he was hospitalized for at least 15 days. Def.'s Mot. at 5 (AR 6); Pl.'s Mot. at 5. While his first claim was still pending, White filed a second claim on November 30, 2012, seeking TSGLI benefits for his alleged ongoing inability to perform two ADLs—bathing anddressing—covering the entire period since his injury on March 2, 2012. Pl's. Mot. at 5-6 (AR 30-61); Def.'s Mot. at 5 (AR 30-42).
The Office of Servicemembers Group Life Insurance ("OSGLI") approved White's first TSGLI claim for 15-day hospitalization on May 22, 2012 in the amount of $25,000. It denied, however, his second claim on February 20, 2013 for additional compensation for his loss of ADLs, citing a lack of evidence that he was unable to independently bathe and dress up to the next claim threshold—more than 30 and at least 60 days. Pl.'s Mot. at 6 (AR 62-65); Def.'s Mot. at 5 (AR 62-64).
On October 22, 2013, White's request for reconsideration, Pl.'s Mot. at 7 (AR 66-113); Def.'s Mot. at 5 (AR 66-68), was also denied on the grounds that he had already received payment for his 15-day hospitalization and had not provided evidence that he was "incapable of performing ADLs of dress, or bathing for greater than 30 days." See Def.'s Mot. at 6 (AR 114-118); Pl.'s Mot. at 7 (AR 117-18). OSGLI's letter of denial also stated, "If the Soldier is able to perform the activity by the use of accommodating equipment/adaptive, then the Soldier is considered able to independently perform the activity." Pl.'s Mot. at 7 (AR 117-18).
On his appeal to the TSGLI Appeals Review Panel in May 2014, White provided additional supporting documentation for his additional benefits claim, including: (1) a new medical certification by Dr. Dennis Hopkins, Pl.'s Mot. at 7 (AR 119-31); Def.'s Mot. at 6 (AR 131, 441); (2) a caregiver affidavit from plaintiff's mother, Pl.'s Mot. at 7 (AR 241); Def.'s Mot. at 7 (AR 448); (3) a statement from Ms. Boccia, plaintiff's physical therapist, Pl.'s Mot. at 7 (AR 240); and (4) additional medical records, Pl.'s Mot. at 7 (AR 244-50).However, the TSGLI Appeals Review Panel unanimously denied his appeal, finding that the Pl.'s Mot. at 7-8 (quoting AR 260-61) (emphasis added); see also Def.'s Mot. at 6 (AR 258-59).
Following this denial, White appealed his claim to the Army Board for Correction of Military Records on May 4, 2015. Pl.'s Mot. at 8 (AR 262-66); see also Def.'s Mot. at 6 (AR 262). Again, the Board advised the plaintiff that he did not meet the standard for establishing additional TSGLI losses past the 60-day mark. Def.'s Mot. at 6 (AR 443); Pl.'s Mot. at 8 (AR 405-07).
Plaintiff filed his initial complaint in this Court on December 23, 2016, seeking judicial review of the Board's denial of benefits. See Compl. ¶ 1 [Dkt. #1]. This case was subsequently stayed while the ABCMR undertook a voluntary remand and reconsideration of its decision. See 3/16/17 Minute Order Granting in Part Def.'s Mot. to Remand & Stay. On remand, the Board decided, on September 12, 2017, to award a second increment of $25,000, reflecting a loss of two ADLs for 60 days post-injury, but declined to award a third increment for loss up to the fully claimed period of 90 days.1 Def.'s Mot. at 7 (AR433); Pl.'s Mot. at 9-10 (AR 433). In particular, the Board found Dr. Hopkins's statement and plaintiff's mother's affidavit conflicted with medical records showing that he was able to perform ADLs independently well before the 90-day mark. Def.'s Mot. at 7-8 (AR 447-449, 452-453).
On October 30, 2017, I granted the parties' joint motion to lift the stay in this case, and I also granted plaintiff leave to file his first amended complaint. See 10/30/17 Minute Order. Plaintiff filed his first amended complaint later that same day, seeking reversal of the Board's denial of his 90-day ADL loss claim. See First Am. Compl. I issued an Order to Show Cause for lack of prosecution under Local Rule 83.23 on December 11, 2017. See Order to Show Cause [Dkt. # 16]. Plaintiff responded the next day and requested a dispositive-motion briefing schedule. See Pl.'s Response to Order to Show Cause [Dkt. # 17]. Pursuant to the briefing schedule, the parties filed their cross-motions for summary judgment on January 15, 2018, Pl.'s Mot. [Dkt. # 18], and February 15, 2018, Def.'s Mot. [Dkt. # 19], respectively, seeking judicial review of the Board's decision under the APA.
The TSGLI program provides insurance benefits to servicemembers who "sustain[] a traumatic injury ... that results in a qualifying loss." 38 U.S.C. § 1980A(a)(1). A servicemember may demonstrate a "qualifying loss" under the statute by demonstrating that his injury resulted in an "inability to independently perform two or more of the following six functions: (i) Bathing (ii) Continence (iii) Dressing (iv) Eating (v) Toileting [and] (vi) Transferring [in or out of a bed or chair]." See id. § 1980A(b)(2)(D) (emphasis added). Congress authorized the Department of Veterans Affairs to carry out the programwith the assistance of the Department of Defense and a private insurer, the Office of Servicemembers' Group Life Insurance ("OSGLI"), Def.'s Mot. at 3, and to prescribe the terms of coverage by regulation. See id. § 1980(A)(b)(1), (3). The Department of Veterans Affairs subsequently passed regulations expanding the range of statutorily covered losses to award between $25,000 and $100,000 for a "[t]raumatic injury, other than traumatic brain injury, resulting in inability to perform at least 2 Activities of Daily Living (ADL)," that falls into at least one category of "scheduled loss." 38 C.F.R. § 9.20(f)(20). To assist in implementing the program, the VA has also published a Traumatic Injury Protection Under Servicemembers' Group Life Insurance (TSGLI): A Procedural Guide (hereinafter "Procedures Guide") that the agency uses to determine eligibility under the program. See Def.'s Mot. Ex. 1, October 1, 2016 Procedures Guide (version 2.38).2
"'Summary judgment is an appropriate procedure for resolving a challenge to a federal agency's administrative decision when review is based upon the administrative record,'" as it is here. Bloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002) (quoting Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995)). In such cases, the district court "sits as an appellate tribunal" and "the entire case ... is a question of law." Am. Biosci., Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (quotations omitted). Courts will thus defer to the agency's "findings of fact if they are supported by substantialevidence and the [Agency's] other findings and conclusions if they are not arbitrary, capricious, an abuse of discretion, or contrary to law." Montgomery Kone, Inc. v. Sec'y of Labor, 234 F.3d 720, 722 (D.C. Cir. 2000) (quotations and citation omitted); see also 5 U.S.C. § 706(2)(A).
As such, a court must generally defer to an agency's reasonable interpretation of the facts even if another interpretation would be plausible on the court's own review of the record. See Fla. Gas Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010) (...
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