Fulbright v. McHugh

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES DANIEL FULBRIGHT,
Plaintiff,
v. Case No. 1:12-cv-01506 (CRC)
JOHN M. MCHUGH, Secretary, United
States Army
Defendant.
MEMORANDUM OPINION
For 25 years, plaintiff James Fulbright has sought retroactive disability retirement from the
Army based on injuries he suffered while in service. In this suit under the Administrative
Procedures Act (“APA”), he challenges a 2009 decision by the Army Board for Correction of
Military Records denying, for the second time, his request for disability retirement status. The
Secretary of the Army has moved to dismiss and both parties have moved for summary judgment.
In his motion to dismiss, the Secretary argues that a prior ruling by the Court of Federal Claims
(“CFC”) that Fulbright’s claims were barred by the Tucker Act’s statute of limitations precludes his
APA claims here; that Fulbright’s claims are separately barred by the APA’s statute of limitations;
and that Fulbright may not sue in this Court under the APA because he could have received the
relief he seeks in his Tucker Act case before the CFC. The Court will deny the Secretary’s motion
to dismiss. Fulbright’s APA suit is not precluded by the CFC’s prior decision because the Tucker
Act’s statute of limitations operates differently than the APA’s, and the latter had not expired when
Fulbright brought this suit. Moreover, the CFC could not have provided Fulbright the relief he
seeks in this action because he solely requests injunctive relief, which the CFC can only grant
ancillary to monetary damages.
The Court also concludes, however, that the board’s decision denying Fulbright’s request
for disability benefits was adequately reasoned and based on sufficient evidence. It will, therefore,
grant the Secretary’s motion for summary judgment and deny Fulbright’s.
I. Background
A. Regulatory Background
Military disability retirement entitles former servicemembers to receive increased retirement
pay and other enhanced benefits relative to standard retirement. See Smalls v. United States, 471
F.3d 186, 190 (D.C. Cir. 2006). Qualifying for disability retirement, however, is no small task.
Military regulations establish a complex web of procedures for obtaining disability benefits after
leaving active service. While the bulk of these regulations need not be discussed here, a brief
summary of the pertinent rules may aid in understanding the facts and legal issues involved in this
case.
Obtaining disability retirement from the Army, where Fulbright served, begins with an
examination of the soldier by an Army medical examiner. See Army Reg. 635–40 ¶ 4–9. The
medical examiner diagnoses the servicemember’s medical conditions and makes a determination as
to whether he is medically qualified to perform his particular duties. Id. If the medical examiner
finds the soldier fit for duty, then he is not eligible for disability retirement. If the medical
examiner finds the soldier unfit for duty—or if the servicemember suffers from certain enumerated
conditions—the Army will convene a Medical Evaluation Board (“MEB”) to review the medical
examiner’s diagnosis and fitness determination. Id. ¶¶ 4–9, 10; see also Army Reg. 40-501 Ch. 3.
If the MEB concludes that the soldier is unfit for duty due to his or her diagnosed conditions, the
Army may convene yet another board—a Physical Evaluation Board (“PEB”)—to review the
MEB’s findings. Army Reg. 635-40 ¶ 4–13. The PEB conducts a more thorough investigation into
the nature and permanency of the servicemember’s condition and makes independent findings as to
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whether the servicemember is fit for duty and qualifies for disability retirement. 1 Id. ¶¶ 4–17, 19.
If the PEB determines that a soldier qualifies for disability retirement, it assigns a disability
percentage rating based on the Department of Veterans Affairs’ Schedule for Rating Disabilities.
Id. ¶¶ 3–5, 4–19i. The assigned disability rating affects the level of benefits a disabled soldier will
receive. 2 See id. PEB disability retirement recommendations are reviewed by the Army Physical
Disability Agency (“APDA”), Id. ¶ 4–24, within the Army Human Resources Command. See U.S.
Army Human Resources Command Website,
www.hrc.army.mil/TAGD/US%20Army%20Physical%20Disability%20Agency. Only upon
acceptance of a PEB recommendation by the APDA will a servicemember become eligible to
receive disability retirement benefits.
Among several avenues of appeal open to a servicemember throughout this extensive
process, he may, within three years of the relevant decision, request that the Army Board for
Correction of Military Records (“ABCMR” or “board”) review an adverse disability retirement
determination. Army Reg. 635-40 ¶ 2–12. The ABCMR will review the determination for “error or
injustice.” Id.B. Factual Background
James Fulbright joined the United States Army as an infantryman in 1974 and went on to
serve in the military police branch, first as a second lieutenant and eventually as a captain.
Administrative Record (“AR”) 193–95, 202. Our story begins in 1978, when Fulbright fractured
1
Even if the PEB finds that the servicemember has a disability that renders him unfit for duty, the
Army can deny disability benefits if, among other reasons, the PEB finds that the disability was the
result of misconduct or willful neglect. See Army Reg. 635-40 4-19a(3)(a), (b).
2
The VA rating is designed to estimate the extent to which the soldier’s disabilities will impair his
or her future earning potential. 38 C.F.R. § 4.1. A 50 percent disabled servicemember under the
VA Schedule would thus be expected to generate half of his otherwise expected earnings at the time
of that designation. See id.3
his right ankle and sprained his left ankle and knee in a parachuting accident. Id. at 187. He
aggravated his left knee sprain the next year. Id. As a result of these injuries, Fulbright was placed
on restricted duty and prohibited from parachute jumping and running more than half a mile. Id. at
139.
Over a decade later, in 1989, Fulbright was passed over for promotion to major for a second
time. Id. at 199. The decision not to promote Fulbright was apparently unrelated to his injuries; the
Army based the decision on his overall performance and the limited slots available. Id. Because
Army regulations require release from active service after missing promotion twice, Fulbright was
honorably discharged from active duty “not by reason of physical disability” and transferred to
inactive ready reserve status later that year. Id. at 197–99.
As required by regulation, Fulbright underwent an Army medical exam before his release
from active duty. Id. at 140–41. He was diagnosed with lower back pain, chondromalacia patella
(inflammation of the knee), a history of traumatic separation in both shoulders, and left foot trauma.
Id. The examiners pronounced Fulbright physically fit, albeit with some limitations to his day-to-
day activities. Id.; see also Army Reg. 40-501 ¶ 7–3. The medical examiner’s assessment was
consistent with the one Fulbright received after his parachuting accident in 1978. AR 139. In 1990,
a year after his separation from active duty, Fulbright applied for, and the VA awarded him,
service-connected disability compensation at a rating of 50 percent based on the same injuries that
were diagnosed in his Army separation exam, in addition to hypertension. Id. at 167–68. The VA
and Army have distinct systems for awarding disability benefits, neither of which is binding on the
other. See, e.g., Rudo v. Geren, 818 F. Supp. 2d 17, 23 n.4 (D.D.C. 2011).
The same year, Fulbright requested that the Army Reserve Personnel Center initiate a MEB
to transfer him from the inactive ready reserve group and designate him as medically retired. AR
93–95. The Army declined his request for a MEB, but, in contrast to his 1989 separation
4
examination that found him fit for active duty, the Army agreed that Fulbright did not meet the
standards for retention in the inactive reserves due to the injuries to his right ankle. Id. at 102.
Fulbright apparently was not given the option of disability retirement, however, and instead elected
to transfer to the retired reserves while continuing to maintain that he should be eligible for
disability retirement. Id. at 96.
In 1992, Fulbright applied to the ABCMR for a record correction, arguing that his 1989
separation medical examination and subsequent VA diagnosis demonstrated that he should have
received medical disability retirement when he was released from active duty. Id. at 183. The
ABCMR denied his request, finding that Fulbright had been physically fit for duty at the time of his
separation from active duty service. The board based its finding on the 1989 separation
examination—which, as previously noted, found Fulbright fit for service—as well as a letter to the
board from the Office of the Surgeon General indicating that Fulbright “met retention standards at
the time of discharge and an MEB was not warranted.” Id. at 183–84, 187. 3 The board concluded
further that the VA’s 50 percent disability rating was not binding on the ABCMR because the VA
does not assess a servicemember’s fitness for duty when determining eligibility for its separate
system of retirement benefits. Id. at 186. The ABCMR accordingly found that there was no
evidence to support Fulbright’s contention that his injuries prevented him from performing his
duties when relieved from active duty in 1989. Id. at 185.
After first petitioning the Army Human Resources Command, Fulbright found himself back
before the ABCMR fifteen years later, in 2008. He argued that the board’s 1992 decision denying
his request for an MEB had been erroneous and that he should have been promoted to major from
the inactive reserves in 1990. Id. at 76. Waiving its three-year statute of limitations in the interest
of justice, the ABCMR agreed with Fulbright that he should have been awarded a promotion to
3
The record is unclear as to why the Surgeon General provided the letter.
5
major while in the reserve group. Id. at 77. It did so primarily because Human Resources
Command found that Fulbright was not promoted to major in 1990 only because of an
administrative error: The Office of Promotions had not received Fulbright’s 1989 medical
examination that showed him fit for duty. Id. at 87–88. As to his request for a MEB, however, the
ABCMR found that Fulbright had failed to provide evidence demonstrating that he was disabled
under army regulations, citing the same reasons it gave in its 1993 decision. Id.Fulbright requested reconsideration of the ABCMR’s decision, arguing again that the VA’s
1990 disability rating is evidence that he should have received disability retirement; that his
conditions “could have been exacerbated” between the 1989 physical and his 1991 retirement
thereby entitling him to disability retirement even if he was fit for service in 1989; and that the
Army should have conducted a new medical examination before he retired from the reserve group.
Id. at 12–15. The ABCMR denied his request in December 2009, again citing his 1989 physical
and distinguishing the roles of the Army and the VA in determining disability. Id. at 9–10. The
board also addressed the Army’s 1991 determination that Fulbright was not fit for service in the
reserve group, stating that “[i]t appears the Command Surgeon . . . . presumably made a
determination that [Fulbright’s] condition was not aggravated by service and, therefore, he was not
eligible to undergo an [MEB.]” Id. at 9. The board further explained that it would be incongruous
both to correct Fulbright’s record to promote him to major, which required the Army to find
Fulbright medically qualified for service, and to award him disability retirement, which required the
Army to find precisely the opposite. Id.Fulbright then brought suit under the Tucker Act, 28 U.S.C. § 1491, in the Court of Federal
Claims (“CFC”), claiming that the ABCMR erred in denying him retroactive medical retirement.
Fulbright v. United States (“Fulbright I”), 97 Fed. Cl. 221, 229 (Fed. Cl. 2011), aff’d, 480 F. App’x
998 (Fed. Cir. 2012). The CFC determined that Fulbright’s claim under the Tucker Act accrued
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either at the date of his release from active duty in 1989 or, at latest, the 1993 ABCMR decision.
The January 2009 ABCMR decision, in the CFC’s view, constituted a denial of reconsideration that
did not restart the Tucker Act’s statute of limitations period, as a new decision would have. Id. at
230–31. Accordingly, the CFC found that Fulbright’s claims were barred by the Tucker Act’s six-
year statute of limitations. Id. Fulbright alternatively requested that the CFC transfer his claims to
this Court for review under the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. The CFC
denied the transfer request, finding that it could have offered a full and adequate remedy had the
case been timely filed. Fulbright I, 97 Fed. Cl. at 231.
Fulbright proceeded to bring suit in this Court under the APA against John M. McHugh, the
Secretary of the Army, arguing that the ABCMR’s 2009 decisions contained manifest error because
its conclusions were contradicted by record evidence. Compl. ¶¶ 22–24. The Secretary moved to
dismiss, arguing that Fulbright’s claims under the APA are barred by the APA’s statute of
limitations and the prior decision of the CFC. Def.’s Mem. in Supp. of Mot. to Dismiss at 1–2. In
lieu of addressing the motion at that time, the Court previously handling the case ordered briefing
on the merits, and the parties then cross-moved for summary judgment. The case was transferred to
this Court during the course of summary judgment briefing.
II. Standard of Review
A. Dismissal for Lack of Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies
outside this limited jurisdiction[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). It is the plaintiff’s burden to establish that the court has subject matter jurisdiction. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Because subject matter jurisdiction focuses on
the Court’s power to hear a claim, the Court must give the plaintiff’s factual allegations closer
scrutiny than would be required in deciding a Rule 12(b)(6) motion for failure to state a claim.
7
Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Thus,
the Court is not limited to the allegations contained in the complaint. Wilderness Soc’y v. Griles,
824 F.2d 4, 16 n.10 (D.C. Cir. 1987). “The district court retains ‘considerable latitude in devising
the procedures it will follow to ferret out the facts pertinent to jurisdiction,’ but it must give the
plaintiff ‘ample opportunity to secure and present evidence relevant to the existence of
jurisdiction.’” Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)
(quoting Prakash v. Am. Univ., 727 F.2d 1174, 1179–80 (D.C. Cir. 1984)).
B. Dismissal for Failure to State a Claim
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff’s
factual allegations “must be enough to raise a right to relief above the speculative level[.]”
Twombly, 550 U.S. at 555–56 (citations omitted). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements,” are insufficient to withstand a motion to
dismiss. Iqbal, 556 U.S. at 678. In deciding a motion to dismiss under Rule 12(b)(6), the Court
may take judicial notice of facts litigated in a prior related case. See Oveissi v. Islamic Republic of
Iran, 879 F. Supp. 2d 44, 49–50 (D.D.C. 2012).
C. Summary Judgment under the APA
In a motion for summary judgment under the APA, “the standard set forth in Rule 56(a)
does not apply because of the court’s limited role in reviewing the administrative record.” Coe v.
McHugh, 968 F. Supp. 2d 237, 239 (D.D.C. 2013) (citations omitted). “‘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.’” Bloch v. Powell, 227 F. Supp. 2d 25, 30–31
(D.D.C. 2002) (quoting Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995)). Under
8
the APA, the Court must set aside agency action that is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706. “[T]he scope of review under
the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that
of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). “Arbitrary and capricious” review is “highly deferential” and “presumes the agency’s
action to be valid.” Envt’l. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981). “[T]he
court considers whether the agency acted within the scope of its legal authority, whether the agency
has explained its decision, whether the facts on which the agency purports to have relied have some
basis in the record, and whether the agency considered the relevant factors.” Fund for Animals, 903
F. Supp. at 105 (citing Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989)). Nothing
more than a “brief statement” is necessary, as long as the agency explains “why it chose to do what
it did.” Tourus Records, Inc. v. Drug, 259 F.3d 731, 737 (D.C. Cir. 2001). It is the plaintiff’s
burden to show by clearly convincing evidence that the decision was the result of a material legal
error or injustice. McDougall v. Widnall, 20 F. Supp. 2d 78, 82 (D.D.C. 1998).
III. Analysis
A. The Secretary’s Motion to Dismiss
The Secretary moves to dismiss on three grounds: (1) issue preclusion applies because the
CFC has already determined that Fulbright’s claims are barred by the statute of limitations under
the Tucker Act; (2) regardless of the CFC decision, Fulbright’s claims are barred by the APA’s
statute of limitations; and (3) Fulbright’s claims are alternatively barred because he could have
received a full and adequate remedy in his suit before the CFC. The Court discusses each ground
below.
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i. Issue Preclusion
“Issue preclusion . . . bars ‘successive litigation of an issue of fact or law actually litigated
and resolved in a valid court determination essential to the prior judgment,’ even if the issue recurs
in the context of a different claim.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (quoting New
Hampshire v. Maine, 532, U.S. 742, 748–49 (2001)). Issue preclusion requires that:
“[1], the same issue now being raised must have been contested by the parties and
submitted for judicial determination in the prior case[; 2], the issue must have been
actually and necessarily determined by a court of competent jurisdiction in that prior case
[; and] [3], preclusion in the second case must not work a basic unfairness to the party
bound by the first determination.”
Martin v. DOJ, 488 F. 3d 446, 454 (D.C. Cir. 2007) (quoting Yamaha Corp. of Amer. v. United
States, 961 F.2d 245, 254 (D.C. Cir. 1992)).
The Secretary argues that the CFC resolved the issues before this Court by construing
Fulbright’s 2008 ABCMR application for disability retirement benefits as a request for
reconsideration of the ABCMR’s 1993 decision, rather than a new action, and thus determining that
his claim was barred by the Tucker Act’s six-year statute of limitations. Def.’s Mem. in Supp. of
Mot. to Dismiss at 7. The CFC’s determinations, however, do not have preclusive effect in this
proceeding because whether the Tucker Act’s statute of limitations has expired is a different
question of law than whether the APA’s statute of limitations has expired.
The Tucker Act does not itself create substantive rights but instead provides a cause of
action for suits for money damages against the United States based upon, among other things, an act
of Congress. 28 U.S.C. § 1491(a)(1). The CFC reviewed two statutes that might have entitled
Fulbright to relief under the Tucker Act if suit was brought within its six-year statute of limitations.
First, the Military Pay Act (“MPA”), 37 U.S.C. § 204 (2006), entitles active-duty members of the
military to challenge a wrongful termination. Claims under the MPA “accrue immediately upon
discharge, because appealing to a correction board is not required for judicial review.” Fulbright I,
10
97 Fed. Cl. at 228 (citing Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en
banc)). Thus, any claim Fulbright might have had under the MPA would have accrued six years
after he lost active-duty status in 1989. But, because Fulbright challenged the ABCMR’s review of
the decision to deny him medical retirement, the CFC determined that his claim was properly
brought under another statute, 10 U.S.C. § 1201, which entitles a servicemember who is unfit for
service to disability pay. Id. (citing Chambers v. United States, 417 F.3d 1218, 1223 (Fed. Cir.
2005)). Under this statute, a decision by “‘[t]he first statutorily authorized board that hears or
refuses to hear the claim invokes the statute of limitations[.]’” Id. (quoting Chambers, 417 F.3d at
1224). Applying this statute, the CFC determined that the Tucker Act statute of limitations began
to run from the 1993 ABCMR denial of a record correction and that the 2009 ABCMR decision did
not re-start the clock. Id.The APA’s statute of limitations operates differently than the Tucker Act’s. As discussed
more fully below, the APA permits an individual to challenge final agency action, and its statute of
limitations begins to run from the date of that final action. Impro Prods., Inc. v. Block, 722 F.2d
845, 850–51 (D.C. Cir. 1983). In Havens v. Mabus, __ F.3d __, 2014 WL 3674599 (D.C. Cir. July
25, 2014), the D.C. Circuit recently held that an APA suit challenging a military corrections board
decision was not precluded by a prior CFC determination that the Tucker Act statute of limitations
barred adjudication. Id. at *4–6. Although Havens involved claim preclusion rather than issue
preclusion, its reasoning applies equally to the Secretary’s issue preclusion argument here. See,
e.g., Taylor, 553 U.S. at 892. The CFC, moreover, did not analyze when the APA statute of
limitations began to run in Fulbright’s case. Fulbright I, 97 Fed. Cl. at 231. Indeed, it could not
have done so because it lacks jurisdiction to review APA challenges. Id. Because the two statutes’
limitations provisions have different standards and the CFC did not address the APA’s limitations
provisions, that court’s ruling has no preclusive effect here.
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Nor does the CFC’s finding that the January 2009 ABCMR decision was a denial of
reconsideration rather than a new claim for a record correction have preclusive effect in this matter.
The application of the APA’s statute of limitations, unlike the Tucker Act’s, does not turn on this
distinction. As discussed below, an agency decision on a request for reconsideration may be a new
final agency action under the APA and therefore trigger its statute of limitations.
ii. APA Statute of Limitations
Section 704 of the APA provides for judicial review of “final agency action for which there
is no other adequate remedy in a court[.]” 5 U.S.C. § 704. Unless another statute prescribes
otherwise, a party must bring an APA claim within six years after the right of action first accrues.
28 U.S.C. § 2401(a); Sendra Corp. v. Magaw, 111 F.3d 162, 165 (D.C. Cir. 1997). The right of
action first accrues on the date of the final agency action. See Impro Prods., 722 F.2d at 850–51.
[T]wo conditions must be satisfied for agency action to be final: First, the action
must mark the consummation of the agency’s decisionmaking process, . . . it must
not be of a merely tentative or interlocutory nature. And second, the action must be
one by which rights or obligations have been determined, or from which legal
consequences will flow[.]
Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citations omitted).
Because the CFC’s Tucker Act analysis has no preclusive effect on Fulbright’s APA claims,
the Court must determine whether the 2009 ABCMR decision was a final agency action that
triggered the APA’s statute of limitations. The Court does not analyze this issue on a blank slate, as
the D.C. Circuit considered a similar issue in Havens. The petitioner in Havens was a retired navy
reserve officer who challenged his 1996 discharge in six record correction requests to the Navy’s
corrections board and subsequent suits to the CFC and this Court. 2014 WL 3674599, at *1. The
corrections board’s first four decisions were held to be outside the APA’s statute of limitations by
the time Havens filed his suit. The Circuit determined, however, that the District Court should have
reviewed the board’s last two determinations, which were filed within the six-year period, because
12
the board chose to reach the merits of the petitioner’s application. See id. n.11. The Circuit
similarly has explained that “[i]f for any reason the agency reopens a matter and, after
reconsideration, issues a new and final order, that order is reviewable on its merits, even though the
agency merely reaffirms its original decision.” Sendra Corp. v. Magaw, 111 F.3d 162, 167 (D.C.
Cir. 1997) (citing among others Interstate Commerce Comm’n v. Brotherhood of Locomotive
Engineers, 482 U.S. 270, 278 (1993)); see also, Houseal v. McHugh, 962 F. Supp. 2d 286, 294–95
(D.D.C. 2013) (ABCMR decision to deny request for reconsideration creates an independent claim
under the APA where that decision is on the merits).
Demonstrating that no good deed goes unpunished, the ABCMR here decided to waive its
three-year statute of limitations in the interest of justice and issue a new final decision on
Fulbright’s request for a record correction in January 2009 because it determined that he should
have been promoted to major from the reserve group in 1990. AR 74–77. Based on the reasoning
of both Havens and Sendra, then, this was a new final agency action that can be challenged under
the APA, regardless of whether Fulbright’s 2008 petition is considered a request for reconsideration
of the 1993 denial or a new request for a record correction. Moreover, the ABCMR’s 2009 decision
passes both elements of the final agency action test: it was the Army’s final decision on Fulbright’s
2008 request, and it produced a change in legal rights as it required that the Army promote
Fulbright to major. 4 Thus, Fulbright’s claims here are not barred by the APA’s statute of
limitations.
4
In Fulbright’s complaint, he asserts jurisdiction both under the APA and the “Little” Tucker Act,
which permits this Court to hear Tucker Act claims involving less than $10,000. The Court finds
that, for the same reasons as stated the CFC, the Court lacks jurisdiction to hear Fulbright’s Little
Tucker Act claim because he filed this suit outside its statute of limitations. See Fulbright I, 97 Fed.
Cl. at 228; see also Carter v. Dep’t of the Navy, 5-775, 2006 WL 2471520, at *2 n.5 (D.D.C. Aug.
24, 2006), aff’d sub nom., 258 F. App’x 342 (D.C. Cir. 2007) (A dismissal based on the Tucker
Act’s statute of limitations has res judicata effect on future suits alleging the same claims under the
Tucker Act).
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iii. Full and Adequate Remedy
A plaintiff may not bring suit under the APA if he can achieve identical relief under a
different statute because only “final agency action for which there is no other adequate remedy in a
court [is] subject to judicial review” under the APA. 5 U.S.C. § 704; Bennett, 520 U.S. at 162.
Similarly, this Court lacks jurisdiction to hear claims that are in actuality Tucker Act claims in
excess of $10,000 because Congress has vested exclusive jurisdiction for those claims in the CFC.
E.g., Smalls, 471 F.3d at 189.
Fulbright’s complaint requests injunctive and declaratory relief that he is entitled to a MEB
and retroactive disability retirement from the Army; he does not seek monetary damages. Compl.
¶¶ 25–30. The Secretary contends that because Fulbright could have received the relief he seeks
through a Tucker Act suit in the CFC, he cannot bring an APA claim here. Def.’s Mem. in Supp. of
Mot. to Dismiss at 11–13. The Secretary advances two supporting arguments: that the actual relief
Fulbright seeks is monetary—the record correction, it argues, is simply a means to an end—and that
the CFC was capable of providing the injunctive relief Fulbright seeks. Id.As to the first argument, “‘as long as [a] complaint only requests non-monetary relief that
has considerable value independent of any future potential for monetary relief [,]’” a plaintiff need
not pursue a Tucker Act claim and may bring suit in this Court under the APA. Tootle v. Secretary
of the Navy, 446 F.3d 167, 176 (D.C. Cir. 2006) (quoting Kidwell v. Dep’t of the Army, Bd. for
Correction of Military Records, 56 F.3d 279, 284 (D.C. Cir. 1995)). As the D.C. Circuit explained
in Havens, a request for a record correction has independent value other than the monetary benefits
a disability designation provides. See Havens, 2014 WL 3674599, at n.11; Smalls, 471 F.3d at 190(outlining benefits apart from disability pay that flow from an Army medical retirement). Fulbright
therefore may bring suit under the APA.
14
As to the Secretary’s second argument, the CFC could not provide Fulbright’s requested
relief here because it cannot entertain suits for declaratory or injunctive relief, except to the extent
such relief is necessary “[t]o provide an entire remedy and to complete the relief afforded by the
judgment [for money damages].” 28 U.S.C. § 1491(a)(2). Because Fulbright does not seek
monetary relief in this suit, the CFC could not award him the injunctive relief he requests. See
Kidwell, 56 F.3d at 284; Carter v. Dep’t of the Navy, No. 5-775, 2006 WL 2471520, at *2 n.5
(D.D.C. Aug. 24, 2006), aff’d sub nom., 258 F. App’x 342 (D.C. Cir. 2007) (CFC could not afford
plaintiff adequate relief “[b]ecause the plaintiff appears to seek exclusively declaratory relief” for a
military record correction). Many courts in this district have reviewed decisions of the ABCMR
under the APA where plaintiffs have requested injunctive or declaratory relief only. See, e.g.,
Coburn v. McHugh, 679 F.3d 924 (D.C. Cir. 2012); Coe v. McHugh, 968 F. Supp. 2d 237 (D.D.C.
2013); Houseal, 962 F. Supp. 2d at 294–95.
Similarly, the CFC’s decision not to transfer Fulbright’s APA claims to this Court because
the CFC could have afforded him full relief, see Fulbright I, 97 Fed. Cl. at 231, does not have
preclusive effect on this Court. Unlike here, Fulbright sought monetary relief in his prior suit,
which the CFC could have provided under the Tucker Act. Moreover, the CFC was analyzing
whether it could transfer the case under its circuit’s caselaw on transferring cases, not the “other
adequate remedy” limitation on APA claims. Id. Because the CFC was addressing a different legal
standard, its decision does not have preclusive effect. See Taylor, 553 U.S. at 892.
B. Summary Judgment under the APA
Having found that the Secretary is not entitled to dismissal of Fulbright’s complaint, the
Court moves to the Secretary’s motion for summary judgment on Fulbright’s APA challenge.
“[W]hile judicial review of an agency’s actions is generally narrow and subject to a
presumption of validity, review of the Board’s decisions in particular under the APA is ‘unusually
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deferential.’” Coe, 968 F. Supp. 2d at 240 (quoting Piersall v. Winter, 435 F.3d 319, 324 (D.C. Cir.
2006)). As a military review board, the ABCMR is entitled to greater deference than civilian
administrative agencies. Id. (citing Calloway v. Brownlee, 366 F. Supp. 2d 43, 53 (D.D.C. 2005)).
The Court determines whether the ABCMR “‘permissibly exercised [its] discretion and made a
choice that is supported by at least substantial evidence.’” Hill v. Geren, 597 F. Supp. 2d 23, 29
(D.D.C. 2009) (quoting Homer v. Roche, 226 F. Supp. 2d 222, 226 (D.D.C. 2002)). The board’s
decision must “minimally contain[] a rational connection between the facts found and the choice
made.” Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997) (internal quotation marks and
citations omitted). “[A] party seeking review of a board decision bears the burden of overcoming
the ‘strong, but rebuttable, presumption that administrators of the military, like other public officers,
discharge their duties correctly, lawfully and in good faith.’” Roberts v. Geren, 530 F. Supp. 2d 24,
33 (D.D.C. 2007) (quoting Frizelle, 111 F.3d at 177).
At the outset, the Court must clarify the relief Fulbright requests. The Secretary argues, and
Fulbright does not dispute, that Fulbright could not have been placed on the disability retirement list
from the reserve group because reserve soldiers not on active duty cannot receive a MEB under
Army Regulation 40-501. Def.’s Mem. in Supp. of Mot. for Sum. J. at 10; see also Army Reg. 40-
501 ¶ 9–15a (1989) (“Reservists who do not meet the fitness standards set by chapter 3” are
“transferred to the Retired Reserve . . . or discharged[.]”). Thus, Fulbright only challenges the
ABCMR’s review of the 1989 decision not to place him on the disability retirement list when he
was removed from active duty. Pl.’s Opp. & Mem. in Supp. of Cross-Mot. for Summ. J. at 12.
While terse, the ABCMR’s determination provided adequate reasoning to uphold the
board’s decision under the extremely deferential standard the Court must apply. The ABCMR
examined Fulbright’s Army and VA medical records and found that he was not entitled to a record
correction for a medical disability retirement in 1989 because he had proffered no evidence
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showing that he was unfit for service at that time. AR 8–10. It concluded that his separation
medical examination, where he “was determined not to have any medical limitations[,]” refuted his
claims that he was, in fact, unfit for duty. Id. at 8. The board further explained that the Army’s
determination was not inconsistent with Fulbright’s 50 percent VA disability rating because the VA
does not determine medical unfitness for service, which is a necessary requirement for Army
disability retirement. Id. at 9. Because the separation medical examination records and the VA
disability rating were the only two pieces of evidence put forward by Fulbright, the board’s decision
is fully supported by the evidence before it. The board also adequately explained its reasoning in
considering this evidence.
Fulbright further argues that his separation medical examination diagnosed conditions that
required mandatory referral to a MEB under Army regulations. Pl.’s Opp. & Mem. in Supp. of
Cross-Mot. for Summ. J. at 14–15. Fulbright was diagnosed with chondromamalacia patella, which
is inflammation of the knee. AR 140–41. A soldier suffering from this condition must be referred
to a MEB if it causes “more than moderate interference with function.” Army Reg. 40-501 ¶ 3-
14(b), Reoccurring shoulder dislocations, from which Fulbright also suffered, require a MEB
“when not repairable or surgery is contraindicated.” Id. ¶ 3-12(c). For both conditions, then, a
MEB is mandatory only when there has been a finding of sufficient severity. Fulbright, however,
did not advance evidence before the board that would require it to find that his chondromalacia
caused more than moderate interference with relevant functions or that his shoulder separation
history was not repairable with surgery. In fact, the only evidence he presented showing that he had
those conditions in 1989 was his separation exam, which found that none of his conditions, either in
isolation or in tandem, were severe enough to warrant a finding that he was unfit for service. AR
140–41. Thus, Fulbright has not demonstrated that either the 1989 discharge or the ABCMR’s
decision violated Army regulations.
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Fulbright also argues that the ABCMR “failed to explain why a 50% disability rating by the
VA effective in 1989 or a 70% disability rating effective in 1992 is not probative of error by the
Army.” Def.’s Mem. in Supp. of Mot. for Sum. J. at 16. But, as noted above, the ABCMR
explained that the VA does not determine whether an individual is fit for continued service in the
military before determining whether they are partially or totally disabled. AR 7–9. Army
regulations, on the other hand, first require the Army to determine whether the servicemember is
unfit for duty. 10 U.S.C. § 1201(a). It is only after this threshold determination that the VA and
Army apply the same disability rating schedule to determine a servicemember’s level of disability.
Army Reg. 635-40. The board laid out these distinctions in explaining why the VA’s determination
of disability is not determinative of Fulbright’s fitness for service. AR 7–9.
Lastly, Fulbright asserts that “preponderant evidence shows that Mr. Fulbright was not fit
for duty at the time of his separation from active duty in 1989.” Def.’s Mem. in Supp. of Mot. for
Sum. J. at 19 (emphasis in original). But preponderance of the evidence is not the standard this
Court applies in reviewing decisions of the ABCMR under the APA. As long as the board’s
determination adequately states the reasons for its decision and was in the realm of reason, this
Court must defer to it. E.g., Frizelle, 111 F.3d at 176. Here, the board determined that Fulbright
had presented no evidence showing that he was unfit for service at the time of his separation
because Army medical examiners had found him fit and the VA’s disability rating was not to the
contrary. This determination was reasonable in light of the evidence before the board, and the
Court therefore will defer to the board’s findings.
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IV. Conclusion
For the reasons above, the Court will deny Defendant’s motion to dismiss, deny Plaintiff’s
cross-motion for summary judgment, and grant Defendant’s motion for summary judgment. The
Court will issue an order consistent with this opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: September 9, 2014
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