DocketNumber： No. 08-357C
Citation Numbers： 97 Fed. Cl. 443
Judges： Lettow
Filed Date： 2/18/2011
Status： Precedential
Modified Date： 7/20/2022
OPINION AND ORDER
This case arises from a decision by the Public Health Service (“PHS”) to terminate Mary Verbeck, a nurse practitioner who served as a Lieutenant Commander in PHS’ Commissioned Corps, during her probationary period of employment. Previously, the court had considered, vacated, and remanded a decision by the Board for Correction of PHS’ Commissioned Corps Records (“Board”), which had denied Ms. Verbeck’s
Ms. Verbeck has contested that decision by the Board on remand and has filed a renewed motion for judgment upon the administrative record or, alternatively, for an order remanding her case to the Board to allow it to consider additional evidence. First, Ms. Verbeck alleges that her termination was improper, primarily because no adverse comments about her performance had been incorporated in her Commissioned Officer Effectiveness Reports (“COERs”), that no COER had been prepared regarding the last year of her service, and that she had not been counseled about any performance deficiencies. Pl.’s Mot. for Judgment upon the Administrative Record at 25-29 (“Pl.’s Mot.”); Pl.’s Resp. and Opp’n to Def.’s Cross-Mot. (“Pl.’s Resp.”) at 8-9. Second, Ms. Verbeck avers that she was entitled to consideration for disability separation by a Medical Review Board (“MRB”) due to complications she suffered in connection with breast cancer surgery she underwent in 2001, and the ensuing severe depression from which she was suffering at the time of her termination. Pl.’s Mot. at 13-19.
The government has responded by filing a cross-motion for judgment upon the administrative record. Regarding Ms. Verbeck’s claims that her discharge was improper and that she was entitled to disability separation, the government contends that the Board properly considered the entire record and that its decision is supported by substantial evidence and accords with governing regulations. Def.’s Cross-Mot. for Judgment upon the Administrative Record, and Resp. to Pl.’s Mot. at 11-13 (“Def.’s Cross-Mot.”).
The court held a hearing on the pending cross-motions on February 1, 2011. The competing motions accordingly are ready for disposition.
FACTS
A. Ms. Verbeck’s Service as a Nurse Practitioner with PHS’ Commissioned Corp.
PHS’ Commissioned Corps provides medical services to a variety of federal entities including the Immigration and Naturalization Service (“INS”), the Bureau of Prisons, the Department of Defense, the Indian Health Service, and the Food and Drug Administration. Hr’g Tr. 38:21 to 39:20 (Feb. 1, 2011).
Upon Ms. Verbeck’s return to work in early 2002, her depression was aggravated by two workplace incidents during which she felt that her physical safety was threatened by detainees. Verbeck, 89 Fed.Cl. at 52. At about the same time, Ms. Verbeek submitted to one of her two superiors, Commander Yvonne Anthony, Health Services Administrator of the San Pedro facility,
On February 7, 2002 and February 12, 2002, Ms. Verbeck failed to report to work. Verbeck, 89 Fed.Cl. at 52-53. Each time, Ms. Verbeek provided a note from her physician who, after evaluating her over the telephone, concluded that Ms. Verbeek was suffering from major depression that was being exacerbated by workplace stressors and harassment. Id. at 53. As a result of Ms. Verbeek’s diagnosis and the lack of an in-person clinical evaluation, Ms. Verbeek’s PHS superiors expressed concern over the propriety of allowing her to treat patients. Id. Accordingly, on February 14, 2002, Ms. Verbeek was informed that she would be placed on paid leave until she obtained medical documentation based upon a formal evaluation releasing her to perform full duty. Id.
On February 15, 2002, Ms. Verbeek provided medical documentation stating that although she continued to suffer from major depression, she could “return to work full duty.” AR-393 (Physician’s Correspondence (Feb. 15, 2002)). On that same day, Commander Anthony sent a letter to Commander William Atwood, Medical Affairs Branch, United States PHS, expressing her opinion that Ms. Verbeek “pose[d] a serious risk to the safety of herself, fellow employees, and patients.” AR-371 (Letter from Commander Anthony to Commander Atwood (Feb. 15, 2002)).
On February 16, 2002, Ms. Verbeek filed a discrimination complaint with the Office of Equal Opportunity and Civil Rights (“EEO Complaint”), alleging that her superiors’ demands regarding her medical documentation constituted discrimination on the basis of “‘perceived’ physical or mental disability.” AR-631 (Letter from Ms. Verbeek to Patricia J. Mackey, Director, HRSA Office of Equal Opportunity and Civil Rights (Feb. 16, 2002)). Additionally, on February 18, 2002, Ms. Verbeek sent a letter to OSHA recounting the list of potential health and safety violations at the San Pedro INS facility that Ms. Verbeek had previously reported to Commander Anthony. Verbeck, 89 Fed.Cl. at 54.
Ms. Verbeek returned to work on February 19, 2002. Verbeck, 89 Fed.Cl. at 54. That same day, Commander Anthony and Commander Sowinski set forth the reasons they believed that Ms. Verbeek’s “continued presence in the facility [was] detrimental to the functioning, productivity, and staff morale” of the San Pedro facility. AR-369 (Mem. from Commander Anthony and Commander Sowinski to Commander Phil Jarres, Acting Chief, Field Operations (Feb. 19, 2002)). One day later, Ms. Verbeek was informed that she was being “directed into a nonduty with pay status for a period not to exceed 60 days, unless extended, pending receipt of a second opinion evaluation by the Medical Affairs Branch.” AR-396 (Letter
In late February and early March, two physicians independently conducted reviews and provided a clinical evaluation of Ms. Ver-beek’s psychiatric condition. Ms. Verbeck’s physician, Dr. Kathleen Frenchen, informed PHS that she had been treating Ms. Verbeek for major depression since November 9, 2001, and that although developments at the San Pedro facility had exacerbated her condition, Ms. Verbeek was psychiatrieally fit for full duty. AR-249 (Letter from Dr. Frenchen to Dr. Hooper (Feb. 27, 2002)). Thereafter, Ms. Verbeek was evaluated by Captain William Nash, a Navy doctor, who concluded that although Ms. Verbeek was “psychiat-rically fit for full duty ... [gjiven her stresses and the obvious [e]ffects they have on her emotional state and interpersonal functioning ... consideration should be given to transferring her to a less stressful work environment.” AR-190 to 191 (Letter from Captain Nash to Commander Atwood (Mar. 7, 2002)).
On March 21, 2002, Ms. Verbeek was informed that she would “continue in a nonduty with pay status pending an administrative investigation.” AR-398 (Letter from Commander Anthony to Ms. Verbeck (Mar. 21, 2002)). Shortly thereafter, Dr. Eugene Mi-gliaceio, Director of the Division of Immigration Health Services, requested Ms. Ver-beck’s immediate separation from service “for reasons of unsuitability and for failure to demonstrate the level of performance, conduct, and dedication to duty expected of an officer in the Uniformed Services.” AR-338 (Mem. From Dr. Migliaccio to Rear Admiral Michael Davidson, Director, Division of Commissioned Personnel (“DCP”) (Apr. 4, 2002)). Ms. Verbeek was notified on May 1, 2002 that her commission was being terminated, effective June 1, 2002. Verbeck, 89 Fed.Cl. at 56.
On May 30, 2002, Ms. Verbeek requested through counsel that Rear Admiral Davidson, Director, DCP, rescind the termination letter or “delay her termination until she can complete medical care that she very much needs or allow her to be considered for a medical discharge.” AR-261 (Letter from David P. Sheldon, Attorney for Ms. Verbeek, to Rear Admiral Michael Davidson (May 30, 2002)). That letter cited Ms. Verbeck’s ongoing care resulting from her cancer, mastectomy, reconstructive surgery, and depression, and her scheduled surgical procedures to address uterine abnormalities as evidence that Ms. Verbeek was not fit to be discharged at that time and was eligible to be considered for a medical discharge. AR-261 to 263. Ms. Verbeck’s request was rejected, and she was terminated effective June 1, 2002. See AR-266 (Letter from Rear Admiral Davidson to Mr. Sheldon (June 17, 2002)).
B. The First Administrative Proceeding
On April 9, 2003, Ms. Verbeek filed suit in this court alleging that PHS had improperly terminated her and had wrongfully denied her a disability retirement. Verbeck, 89 Fed.Cl. at 56. Because Ms. Verbeek had failed to submit an application to the Board prior to filing in this court, the parties entered into a joint stipulation of dismissal. Id. at 57. Ms. Verbeck thereafter submitted an application to the Correction Board. Id.
On March 28, 2007, the Board issued a decision rejecting Ms. Verbeck’s application. AR-431 to 433 (Correction Board Final Decision Regarding Ms. Verbeck, Case No. OS-515 (Mar. 28, 2007)). The Board determined that at the time Ms. Verbeek was separated, she had been found fit for full duty, and was thus ineligible for disability retirement. AR-432. The Board additionally concluded that documentation submitted by the INS showed that Ms. Verbeek’s commission was properly
C. Prior Judicial Decision
Ms. Verbeck thereafter filed her second complaint in this court, claiming that her termination was wrongful and was the result of reprisal, that she was improperly discharged without receiving a fitness-for-discharge physical prior to her termination, and that the Board’s decision was arbitrary and capricious. Verbeck, 89 Fed.Cl. at 50-51.
The court first interpreted and applied 42 U.S.C. § 213a and held that it lacked jurisdiction over Ms. Verbeck’s allegations of retaliatory termination based on her EEO and OSHA complaints because, as a member of the PHS’ Commissioned Corps, Ms. Verbeck was not entitled to any statutory protection for whistleblowers nor was she eligible for the protections provided by the Americans with Disabilities Act, 42 U.S.C. § 12203(a). Verbeck, 89 Fed.Cl. at 61-62.
Respecting the merits of Ms. Verbeek’s improper termination claim, the court determined that the Board’s failure to consider Ms. Verbeck’s COERs, which provided remarkably positive reviews of her professional performance, coupled with a corresponding failure to consider the awards Ms. Verbeck had received during her tenure with the PHS, demonstrated that the Board had not considered all relevant aspects of Ms. Verbeck’s service. See Verbeck, 89 Fed.Cl. at 65-66. Correlatively, the court found that the Board omitted to address evidence casting potential doubt on the authenticity of Commander Sowinski’s initials on the memorandum ostensibly from Commander Anthony and Commander Sowinski dated February 19, 2002, which provided much of the reasoning behind Ms. Verbeck’s termination. Id. at 66. The court additionally found that the Board’s determination that it lacked jurisdiction over Ms. Verbeek’s claims due to her assignment to an INS facility was “clearly erroneous[,]” as Ms. Verbeck was at all times an officer in the PHS’ Commissioned Corps and had been, in fact, terminated by PHS. Id. at 67.
The court also concluded that the Board erred in its consideration of Ms. Verbeck’s disability separation claim due to its failure to consider evidence of significant impairment that had arisen during the course of Ms. Verbeck’s tenure with the PHS’ Commissioned Corps. See Verbeck, 89 Fed.Cl. at 69-70. The court particularly noted that although the Board had emphasized an evaluation of Ms. Verbeck by her treating physician that concluded that she was fit for duty, it had ignored the evaluation done by Captain Nash in March of 2002, which indicated that Ms. Verbeck was suffering from a variety of ongoing mental and physical health difficulties which impaired her functioning as a nurse practitioner in Ms. Verbeek’s then-current assignment. Id. Because “[cjorreetion boards are ‘competent to make a disability determination in the first instance[,]’ ” the court directed that the Board make such a determination or cause such a determination to be made. Id. at 70 (quoting Sawyer v. United States, 930 F.2d 1577, 1581 (Fed.Cir.1991)).
The court consequently vacated the Board’s decision and remanded the ease to the Board with instructions to consider anew “whether the termination of Ms. Verbeck’s commission was appropriate and whether she should have been separated with a severance payment based on disability.” Verbeck, 89 Fed.Cl. at 70.
D. Administrative Proceedings on Remand
On April 16, 2010, the Board issued its second decision, again rejecting Ms. Ver-beck’s application. AR2-R2 to R6 (Correction Board’s Second Decision). As to Ms. Verbeck’s claim that she was entitled to disability separation, the Board stated that it was “neither qualified to make a medical determination of [Ms. Verbeck’s] fitness for duty nor determine whether or not she should have been referred to a Medical Review Board (MRB) for evaluation.” AR2-R4. The Board then commented on “the issue of
The Board stated that neither Ms. Verbeek nor her program officials requested an MRB. AR2-R4 (Correction Board’s Second Decision). The Board also noted that a referral could be made by the Office of Commissioned Corps Operations (“OCCO”) but indicated that such a referral is “directed when an officer uses excessive sick leave in a 12-month period or if an officer has a medical condition that is disabling or otherwise places the officer or others in jeopardy if the officer continues on active duty.” AR2-R4. The Board found that an OCCO referral was not appropriate for Ms. Verbeek because neither of these criteria was present and concluded that Ms. Verbeck’s medical conditions “did not warrant convening a MRB.” Id. The Board noted that although Ms. Verbeek “had a variety of medical issues” and Captain Nash had “indicated that her condition was exacerbated by her work assignment,” Captain Nash also determined that she was “fit for duty.” Id.
The Board also denied Ms. Verbeck’s claim of improper termination. After noting that Ms. Verbeek was transferred from the Queens facility to the San Pedro facility due to “unspecified difficulties adjusting to the work environment[,]” the Board concluded that “[t]he determination of unsuitability was based on behavioral issues that had surfaced in Ms. Verbeck’s first assignment.” AR2-R5 (Correction Board’s Second Decision). The Board additionally found that “[t]he determination of failure to demonstrate the level of performance, conduct, and dedication to duty expected of an officer was based on her failure to resolve health and safety issues throughout the medical unit as the infection control officer, [Ms. Verbeek’s] not being receptive to supervision^] and [her] diffieult[y] working with others.” Id. Although the Board recognized that “Ms. Verbeek had numerous awards and excellent officer efficiency ratings through 2001[,]” and that the emergence of her behavioral issues “appeared] to coincide with the onset of surgery and ensuing eomplieationsf,]” the Board discounted the potential importance of these facts because “similar concerns had resulted in her transfer from the Queens DIHS facility and there was no evidence of an onset of medical issues associated with her behavioral issues [in that facility].” Id.
After concluding that Ms. Verbeck’s termination followed appropriate procedures, the Board decided that although her “past performance record and illness would certainly be considered mitigating circumstances,” those factors “are not determinative absent an error in record.” AR2-R5 (Correction Board’s Second Decision). As for the dispute concerning the authenticity of Captain Sowinski’s initials on the March 2002 memorandum requesting Ms. Verbeck’s termination, the Board stated that it had verified “via sworn statement” that Captain Sowinski “did in fact initial the request and it was not a forgery.” Id.
STANDARDS FOR DECISION
In reviewing the parties’ cross-motions for judgment upon the administrative record pursuant to Rule 52.1(c), “the court asks whether, given all the disputed and undisputed facts, a party has met its burden of proof, based on the evidence in the record.” A & D Fire Prot., Inc. v. United States, 72 Fed.Cl. 126, 131 (2006) (citing Bannum, 404 F.3d at 1356). Facts that are in contention will not preclude judgment on a motion made under Rule 52.1(c); rather, the court resolves such questions by reference to the administrative record. See Bannum, 404 F.3d at 1356-57.
The court’s review in these matters is thus limited in scope and deferential in nature. Ms. Verbeck must show that the Board’s decision was arbitrary and capricious, contrary to law, or unsupported by substantial evidence. See Chambers v. United States, 417 F.3d 1218, 1227 (Fed.Cir.2005); Godwin v. United States, 338 F.3d 1374, 1378 (Fed.Cir.2003); Heisig, 719 F.2d at 1156. Under this standard, the court must ask “whether the decision was based on a consid eration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 104-05, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The Board’s decision will comply with the substantial evidence standard so long as a “ ‘reasonable mind might accept’ [the] particular evidentiary record as ‘adequate to support [the contested] conclusion.’ ” Dickinson v. Zurko, 527 U.S. 150, 162, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (quoting Consolidated Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Similarly, the arbitrary and capricious standard “requires a reviewing court to sustain an action evincing rational reasoning and consideration of relevant factors.” Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed.Cir.2000).
In sum, the court must satisfy itself that the Board considered all of the relevant evidence and provided a reasoned opinion that reflects a contemplation of the facts and circumstances pertinent to the case before it. See Heisig, 719 F.2d at 1157 (“Under the substantial evidence rule, all of the competent evidence must be considered, whether original or supplemental, and whether or not it supports the challenged conclusion.”); Van Cleave v. United States, 70 Fed.Cl. 674, 678-79 (2006) (While the court does not “serve as a ‘super correction board[,]’ Skinner v. United States, [594 F.2d 824, 830 (Ct.Cl.1979) ] ... correction boards must examine relevant data and articulate satisfactory explanations for their decisions.”) (citations omitted). If the Board “entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the [Board], or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise[,]” its decision runs afoul of even this lenient standard of review. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).
ANALYSIS
I. VALIDITY OF MS. VERBECK’S TERMINATION
A. Whistleblower Protection and Disability Discrimination
In her motion and initial briefing, Ms. Ver-beck appeared to renew her claim that her
Nonetheless, in support of her factual-predicate argument, Ms. Verbeek points to provisions within the PHS’ Personnel Manual which state that officers shall be free of reprisal and discrimination based on disability, among other things. Pl.’s Mot. at 6-7; AR2-R67 to 68 (eCCIS CC26.1, Instruction 6, Sections D(7) and E(1)).
B. Commissioned Officer Efficiency Reports
1. The Board’s consideration of Ms. Ver-beck’s COERs.
Ms. Verbeek argues that the Board’s decision was arbitrary and capricious because “none of the behavioral incidents [cited as cause for her termination] were made a part of [her] COERs which clearly established that [her] ratings were exceptional through June of 2001, and the Board failed to recognize that to exclude the behavioral assertions from the COERs not only violates USPHS policy but is an error in the record.” Pl.’s Mot. at 25; see also id. at 27. The Board dismissed any temporal connection between Ms. Verbeck’s alleged behavioral issues and her medical difficulties by referring to notes and recollections about Ms. Ver-beck’s interactions with other PHS personnel that occurred prior to her illnesses and surgeries:
Ms. Verbeek had numerous awards and excellent officer efficiency ratings through 2001. The Board also notes that issues with Ms. Verbeck’s behavior, performance of duties, response to supervision, and difficulty working with others appear to coincide with the onset of surgery and ensuing complications. However, the Board also notes that similar concerns had resulted in her transfer from the Queens DIHS facility and there was no evidence of an onset of medical issues associated with her behavioral issues.
The PHS Personnel Manual emphasizes that COERs must be “candid and objective” because they are used respecting “assignment, promotion, and retention:”
The COER is extensively used in the evaluation of officers for various personnel actions.... The COER is also basic to fulfilling an important supervisory responsibility, that of the discussion of an officer’s performance with him/her. Such discussions provide officers with an opportunity to assess their strong and weak points, and overcome perceived performance and/or attitudinal deficiencies, in order to increase their value to the Service .... It is PHS policy that an officer’s evaluation must be discussed with him/her in a formal manner at least once annually, and more frequently, if appropriate. In all instances, the officer’s immediate supervisor must discuss the evaluation with the officer.... Moreover, the COER is utilized by DCP as an adjunct in processing both positive and adverse actions that are initiated by program officials. Therefore, it is imperative both to the officer and to the Service that reports be candid and objective. Since COERs are often the basis for personnel actions involving assignment, promotion, and retention, raters are reminded that it is expected that problems and/or difficulties shall be documented.
AR2-R35 (eCCIS CC25.1, Instruction 1, Section C(2-4)) (emphasis added). Either this “basic” and “imperative” instruction regarding COERs was not followed by Ms. Ver-beck’s supervisors, or Ms. Verbeck’s difficult relationships with her supervisors and peers arose in concert with her medical infirmities. Either way, the Board manifestly erred in its assessment of the evidence by failing to deal with the blatant contradictions between the uniformly favorable COERs and the disparaging commentary.
There is sparse documentation — which was prepared after Ms. Verbeek’s separation had been requested — reporting that Ms. Verbeck experienced behavioral problems at the Queens facility. See AR-R221 (Mem. from Captain Jim Imholte, Health Services Administrator, to Captain Janet Dumont, Assistant Director (Mar. 12, 2002)) (stating that Ms. Verbeck had improperly requested her brother, an Air Force Colonel, to intervene on her behalf in an INS matter, and characterizing Ms. Verbeck as “a very moody person ... who at times could be difficult”); AR-R222 (Mem. from Captain Neal Collins to Captain Jan Dumont (Apr. 4, 2002)) (noting Ms. Verbeek’s objection to performing routine nursing duties, her numerous episodes of crying, her refusal to submit her security clearance to INS, and her “very poor relationships with her peers[,]” including her argumentativeness and frequent complaints).
Ms. Verbeek’s subsequent COER, prepared in June of 2001, equally is discordant with PHS’ account of her behavior at the San Pedro facility. The February 19, 2002 memorandum that requested Ms. Verbeck’s separation states that “[w]ithin four months after arrival at this facility ... [Ms.] Verbeck required verbal counseling due to her behavior and its effect on the staff and productivity of this clinic.” AR-369 (Mem. from Commander Anthony and Commander Sowinski to Commander Phil Jarres, Acting Chief, Field Operations (Feb. 19, 2002)). That behavior reportedly included Ms. Verbeck’s creation of a “hostile work environment^]” her paranoia, her bossiness, her condescending nature to her colleagues, and her effect of “decreasing productivity^]” Id. Ms. Verbeck’s COER for this exact period states that she “gets the most out of all employees supervised[,] that she “[i]s able to cooperate with others in a manner that helps produce better work than any one member of the group could produce [] ” and that “[t]hrough mutual brainstorming [she] attempts to achieve the maximum efficiency for distribution of the daily workload.” AR-167 (Ms. Verbeck’s COER for 2001) (emphasis added). The 2001 COER also provided that Ms. Verbeck “[w]orks with supervisory guidance constructively[] ” [i]ntegrates personal and program interests so that conflicts rarely <znse[,]” and that she is “an asset to [the] division and the USPHS.” AR-168, 171 (Ms. Verbeck’s COER for 2001) (emphasis added). The rater ended the COER by stating that “[without any reservations, I support her further career advancement in the USPHS.” AR-171 (Ms. Verbeck’s COER for 2001).
The dissonance between Ms. Verbeck’s COERs and her supervisors’ subsequent commentary regarding her behavior over the time from 1999 to 2001 is confounding. More importantly, it runs directly contrary to the regulations governing COERs, which demand that COERs include candid evaluations that encompass the positive and negative aspects of an officer’s performance. AR2-R35 (eCCIS CC25.1, Instruction 1, Section C(2-4)).
No explanation for, or appropriate resolution of, the discrepancy appears on the record before the court. See Frizelle v. Slater; 111 F.3d 172, 179 (D.C.Cir.1997) (observing that a Board must give “appropriate weight” to competing evidentiary submissions).
2. Three-year file review.
Ms. Verbeck additionally contends that the Board erred in denying her claims that PHS failed to follow the regulations governing review by COERs and otherwise during an officer’s last year of probation. See Pl.’s Mot. at 22-23; Pl.’s Resp. at 7-8. The government asserts that because Ms. Verbeck was terminated for cause and not involuntarily separated at the conclusion of her three-
PHS regulations dictate that “[p]rior to completion of the 3-year probationary period, each officer will be reviewed ” according to a detailed timeline. AR2-R51 (eCCIS CC23.7, Instruction 1, Section E(5)) (emphasis added). Twelve months prior to the end of an officer’s probation, the officer must be notified that he or she is entering his or her final year of probationary service. Id. (Section E(5)(a)). No later than nine months prior to the conclusion of an officer’s probationary period, the operating division or program “will review the performance and conduct of officers covered by the notice, and will make a recommendation to DCP regarding each officer’s retention beyond probation.” Id. (Section E(5)(b)) (emphasis added).
Ms. Verbeck entered her final year of probation on November 1, 2001. See Pl.’s Statement of Facts ¶1(2) (noting Ms. Verbeck’s entry into service with PHS on Nov. 1, 1999). Thus, by February 1, 2002 — nine months pri- or to the end of her probationary service— the operating division or her program was required to conduct a formal review of Ms. Verbeck’s performance by way of a COER. In the government’s view, however, the failure of Ms. Verbeck’s supervisors to do so is of no import because “[t]he program to which an officer is assigned is ‘responsible for initiating separation action whenever it becomes apparent during the probationary period that the officer’s performance or conduct is below a level desirable for continued service.” Def.’s Cross-Mot. at 24 (quoting AR2-R50 (eCCIS CC23.7, Instruction 1, Section E(2)(a))) (emphasis added).
The government’s interpretation of the relationship between eCCIS CC23.7, Instruction 1, Section E(2)(a), and those governing the procedures required during an officer’s third year of probation is erroneous. While a program may initiate a separation action at any time during an officer’s probationary period, including during the final year, any such decision neither displaces nor excuses the program’s failure to initiate and pursue the third-year file review process. In fact, the regulations contemplate the exact situation of an individual separation action arising during an officer’s final year of probation. They state:
It is possible that an officer could be in some stage of the group [third-year] review process when an individual case is initiated by the OPDIV or Program. If an individual case is under consideration while a group review is in process, the individual case will take precedence, and the group review for that particular officer need not be continued.
AR2-R50 (eCCIS CC23.7, Instruction 1, Section E(2)). Under the regulations, Ms. Ver-beck was plainly entitled to the three-year file review procedures, including notification of entry into her third year of probation and a COER performed by February 1, 2002, until such time as PHS requested her termi
3. Non-routine action.
Ms. Verbeck alleges that she was entitled to a special request COER on a second ground because her separation constituted a “nonroutine action” within the meaning of eCCIS CC25.1, Instruction 1, Section G(4)(a). Pl.’s Resp. at 8-9. The government contends that Ms. Verbeck has waived a challenge based upon the “nonroutine action” portion of the special request COER provision because she did not expressly identify that particular segment of the COER provisions in the proceedings before the Board on remand. Def.’s Reply at 8 (citing Metz v. United States, 466 F.3d 991, 999 (Fed.Cir.2006); Murakami, 398 F.3d at 1354). The government argues also that probationary termination does not qualify as a “nonroutine action” because it is “governed by regulation^] and policy guidelines that do not require special justification.” Def.’s Reply at 9.
The government’s waiver argument is unavailing. The primacy of COERs and the lack of notice to, and formal review of, Ms. Ver-beck regarding her allegedly deficient performance formed the crux of Ms. Verbeck’s improper termination claim, see AR2-R18, R20, R23 (Ms. Verbeck’s Second Application to the Board), and was a central component of this court’s prior opinion. See Verbeck, 89 Fed.Cl. at 64-66. Unlike claimants who raise divergent issues that are not strictly tethered to the regulations an administrative review board is considering and charged with enforcing,
“Nonroutine action” is not defined by the relevant instruction; however, under the interpretive canon of ejusdem generis, “when a statute sets out a series of specific items ending with a general term, that general term is confined to covering subjects comparable to the specifics it follows.” Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 586, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008); see also Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-15, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). Among the actions listed in eCCIS CC25.1, Instruction 1, Section G(4)(a), although requests for assimilation and involuntary retirement arise only after an officer’s probationary period, see AR2-R49 (eCCIS CC23.7, Instruction 1, Section D(3)); three-year file reviews commence during an officer’s probationary period, see AR2-R51 (eCCIS CC23.7, Instruction 1, Section E(5)), and assimilation can be the product of those reviews. See AR2-R100 (eCCIS CC23.7, Instruction 1, Section D(3)). Furthermore, the special-request COER provision and the relevant Instruction pertain to actions affecting both probationary as well as non-probationary officers. These circumstances indicate that termination during an officer’s third year of probation constitutes “nonroutine action.”
4. Synopsis.
This court had remanded Ms. Verbeck’s claims to the Board such that it might address the manifest discrepancies between the COERs and awards Ms. Verbeek had received and the notes and commentary that immediately preceded her termination for cause by the PHS. See Verbeck, 89 Fed.Cl. at 69, 70. In its decision on remand, however, the Board failed to carry out its responsibilities to address the competing evidence of record and the all-too-evident lack of compliance by Ms. Verbeck’s supervisory officers with PHS’ regulations governing COERs. The court cannot conclude from the record that these omissions and errors are trivial. See Frizelle, 111 F.3d at 178. Accordingly, this ease must again be remanded to the Board. In making and explaining this decision, the court has endeavored to cite the evidence that is contradictory and to identify the PHS regulations that have been contravened, without specifying any particular outcome respecting Ms. Verbeck’s claims. On remand, the Board should put aside the approach taken during its prior two decisions and should undertake a fresh, complete analysis and reach a reasoned, objective decision in light of the whole record. The Board is reminded that “[t]he integrity and objectivity of the rating system [here, for commissioned officers,] go to the very heart of the military establishment’s effectiveness, and all [the court] do[es] here is to preserve it as the statutes and authorized procedures contemplate and mandate.” Skinner, 594 F.2d at 830.
II. SEPARATION BASED ON DISABILITY
As her second claim, Ms. Verbeek contends that “she should have been referred to a MRB for disability evaluation[,]” Pl.’s Mot. at 17, and that the Board failed to consider evidence relating to Ms. Verbeek’s medical impairment that arose during the last months of her service with the PHS. Pl.’s Resp. at 15-17; Hr’g Tr. 6:22-25. As support for this assertion, Ms. Verbeek relies upon her record of cancer, surgeries, and ensuing depression and upon a request by her attorney at the time, David P. Sheldon, that she be considered for a medical discharge. See Pl.’s Mot. at 14-19; Pl.’s Resp. at 15-16. The government avers that the Board properly determined that the regulatory mechanisms for referral to a MRB were not triggered prior to her separation. Def.’s Cross-Mot. at 26-27; Def.’s Reply at 18-19.
The PHS Manual provides that “[a]n officer may request, in writing, a fitness evaluation when he/she feels unable to perform the duties of his/her office and grade because of medical reasons.” See AR2-R57 (eCCIS CC23.8, Instruction 6, Section F(l)).
Just prior to her separation, on May 30, 2002, Ms. Verbeck’s counsel, David P. Sheldon, sent a letter to Rear Admiral Davidson, Director, DCP, requesting that he rescind Ms. Verbeek’s termination letter or “delay her termination until she can complete medical care that she very much needs or allow her to be considered for a medical discharge.” AR-261 (Letter from Sheldon to Rear Admiral Davidson). The letter explained that Ms. Verbeck’s ongoing care resulting from her mastectomy, reconstructive surgery, and depression, and her upcoming surgeries to address serious uterine abnormalities rendered Ms. Verbeek “unfit to be discharged” and eligible “for a medical discharge.” Id.
The government argues that “the Board rejected the notion that the letter from Ms. Verbeck’s attorney ... constituted a request for an MRB” because her attorney “neither expressly requested an MRB, nor provided that Ms. Verbeek was ‘unable to perform the duties of []her office and grade because of medical reasons.’ ” Def.’s Cross-Mot. at 27. The Board’s opinion, however, does not reflect any of the government’s present arguments; rather, the solitary sentence in the Board’s decision addressing this issue simply reads, “[s]he did not initiate a request.” AR2-R4 (Correction Board’s Second Decision).
The government maintains, however, that even if Mr. Sheldon’s letter constituted a request for a MRB, that letter alone was insufficient to serve as a basis for initiating a fitness evaluation because the Manual provides that “fw]hen an officer is being processed for separation or retirement for reasons other than physical disabilityf,] ... [t]he officer shall not be referred for disability evaluation unless his/her physical condition raises substantial doubt that he/she is fit to continue to perform the duties of his/her office and grade.” Def.’s Cross-Mot. at 27 (quoting AR2-R58 to R59 (eCCIS CC23.8, Instruction 6, Section H(b))). The government asserts that “fa]t the time of her separation, Ms. Verbeck’s physical condition did not require referral to a MRB” because Ms. Verbeek was found “psychiatrically fit for duty” and there was “no indication that she was physically affected.” Def.’s Cross-Mot. at 25.
Because the Board failed to address the fact that the letter from Ms. Verbeck’s counsel constituted a request for a fitness-for-duty evaluation, it likewise did not address whether Ms. Verbeck’s physical condition raised substantial doubt as to her fitness to continue performing her duties. The lack of consideration given to this question is only exacerbated by the fact that the evaluations contained within the administrative record and relied upon by the government address solely Ms. Verbeck’s psychiatric condition— not her physical condition.
Acknowledging, as it must, that Ms. Ver-beek “had a physical condition,” the government asserts that “this condition did not necessarily make her unfit for duty in such a way as to require MRB referral.” Def.’s Cross-Mot. at 26. However, the Board’s opinion reveals the absence of any contemplation of this issue. “The court cannot review the procedural regularity or evidentiary sufficiency of an opinion that does not opine on dispositive legal questions.” Epstein, 539 F.Supp.2d at 270. In light of the considerable evidence that Ms. Verbeek was suffering from a variety of serious, potentially incapacitating physical ailments at the time of her request for a medical discharge, the Board was arbitrary and capricious in ignoring this issue.
CONCLUSION
For the reasons stated, plaintiffs motion for judgment on the administrative record is GRANTED IN PART and DENIED IN PART.
Defendant shall file a report on the status of the proceedings on remand within 90 days after the issuance of this opinion and order, and within each succeeding 90-day period thereafter.
It is so ORDERED.
.In the prior round of proceedings in this court, an administrative record was filed in accordance with Rule 52.1(a) of the Rules of the Court of Federal Claims ("RCFC”). A second administrative record was filed with the court on June 4, 2010 respecting the proceedings before the Board on remand. References to the first administrative record are designated as "AR-_,” while those on remand are to "AR2-_” The pages of each administrative record are paginated sequentially.
. The recitation of facts is drawn from the administrative record. See Bannum, Inc. v. United States, 404 F.3d 1346, 1357 (Fed.Cir.2005) ("The [cjourt ... is required to make factual findings under [what is now RCFC 52.1] from the record evidence as if it were conducting a trial on the record.”). A more detailed factual account is provided in this court’s prior decision. See Verbeck, 89 Fed.Cl. at 51-58.
. Subsequent citations to the transcript of the hearing held on February 1, 2011, will not include the date.
. Ms. Verbeck’s other superior was Commander Kenneth Sowinski, the Medical Director of the facility. See Verbeck, 89 Fed.Cl. at 52 n. 3.
. Ms. Verbeck's allegations were investigated, and the facility was ultimately determined to be in compliance with OSHA’s standards. Verbeck, 89 Fed.Cl. at 52. The final report of the investigation concluded that Ms. Verbeek was not "following established procedure, nor [was] she well versed in her role as the infection control officer of [the] facility.” Id. (quoting AR-367 (Letter from Commander Alysse Gordon, Assistant Health Services Administrator, to Commander Anthony (Feb. 11, 2002))).
. Ms. Verbeck’s EEO complaint was ultimately dismissed. See Verbeck, 89 Fed.Cl. at 54-55.
. In response to her termination, Ms. Verbeek Hied a second EEO complaint, claiming that her termination was in retaliation for her previous EEO complaint in February. Verbeck, 89 Fed.Cl. at 56. Ms. Verbeck's second complaint was ultimately dismissed. Id.
. Subsequent to Ms. Verbeck’s termination, she received a disability rating of 50% from the Veterans Administration. Pl.’s Statement of Facts ¶ 38(d). The Board rejected Ms. Verbeck’s claim that this rating was persuasive evidence of her entitlement to disability separation, because "the criteria for VA disability award and for a disability retirement are not analogous.” AR2-R4 (Correction Board’s Second Decision).
. The Board also addressed its erroneous prior determination that it lacked jurisdiction over Ms. Verbeck’s claim because she was assigned to an INS facility, stating that ”[t]he Board has authority to direct the Corps to take corrective action regardless of where the officer is assigned.” AR2-R5.
. The decision in Bannum was based upon the version of RCFC 56.1 that existed at the time. Subsequently, RCFC 56.1 was abrogated and replaced by RCFC 52.1, which incorporated substantial aspects of the Bannum decision. See Melendez Camilo v. United States, 89 Fed.Cl. 671, 677-78 n. 4 (2009).
. This regulation is a part of the Electronic Commissioned Corps Issuance System (thus "eC-CIS”), formerly known as the Commissioned Corps Personnel Manual. See Verbeck, 89 Fed.Cl. at 63 n. 14. The eCCIS are publicly available through the internet at http://dcp.psc.gov/eccis. They are not published in the Federal Register.
. Additionally, the regulatory provisions do not provide the Board with jurisdiction to review the complaint; the Surgeon General is charged with rendering a final decision. AR2-R77 to R78 (eCCIS CC26.1, Instruction 6, Section F(2)(f)(1)(a)). Ms. Verbeek "acknowledges that this [c]ourt and the Board do not have jurisdiction to overturn the Surgeon General's decision relative to [Ms. Verbeck’s] EEO claims.” Pl.’s Resp. at 14 n. 4.
. Ms. Verbeck raises specific evidentiary objections to the notes and recollections for the first time before this Court. See Pl.’s Resp. at 9-11. Because Ms. Verbeck failed to raise these eviden-tiary objections before the Board, she is precluded from raising these issues in the first instance before this court. See Murakami v. United States, 398 F.3d 1342, 1354 (Fed.Cir.2005).
. Included within the record as well is a page of handwritten notes, author unknown, dated April 28, 1999, which apparently recites the substance of a phone call from Captain Neal Collins relaying Ms. Verbeck’s "emotional, paranoid behavior.” AR2-R220. The Board did not address these notes and, on review, the court cannot afford substantial evidentiary weight to a photocopy of hand-scribbled notes that do not reveal the identity of the author.
. The record reveals no instances of behavioral problems or complaints for nearly the entire year preceding Ms. Verbeck’s return to work in January of 2002 following her cancer treatment. See AR-375 to 376 (Letter from Commander Anthony to Commander Atwood (Feb. 15, 2002)). This circumstance lends significant credence to Ms. Verbeck’s claim that any behavioral problems that actually precipitated her termination were a result of her illness. Captain Nash’s evaluation substantiates this claim as well. He wrote of Ms. Verbeck, "[S]he has no history of significant impairment of her occupational or social functioning in the past because of these traits [of sensitivity to criticism, perfectionism, and defensiveness,] [and] [i]t seems clear from her history ... that a number of situational stressors have greatly affected her mental and emotional state over the past several months.” AR-189 (Letter from Captain Nash to Commander Atwood (Mar. 7, 2002)).
. The regulations reiterate the critical nature of accurate COERs leading up to an officer’s final probationary year, providing that "[s]upervisors of commissioned officers must insure that their ratings of officers’ performance and conduct during the probationary period are consistent with the recommendations which they will make regarding retention beyond the probationary period.” AR2-R50 (eCCIS CC23.7, Instruction 1, Section E(2)(b)).
. The government cites to the United States Department of Health and Human Services’ Commissioned Officer’s Handbook, which provides that “DCP may direct that a COER be submitted under certain circumstances, including 3-year file review ... or other nonroutine action,” as evidence that a COER is not necessarily required for these actions. Def.’s Reply 8-9 (citing Def.'s Reply App. 4). However, the first sentence of that provision states that "[slpecial [r]equests for COERs are made by DCP as part of the 3-year file review process ... or other non-routine action[.]” Def.’s Reply App. 4. Moreover, the provision actually contained within the PHS Manual specifies that DCP is required to request a COER under the listed circumstances.
. See, e.g., Metz, 466 F.3d at 999 (plaintiff could not claim involuntary separation due to ineffective assistance of counsel in first instance before this court); Murakami, 398 F.3d at 1354 (plaintiff could not raise a claim in this court that had not been raised before the administrative agency).
. The government also argues that even if this provision was violated it was harmless error because it "merely prevented Ms. Verbeck from having an adverse special request COER in her official record.” Def.'s Reply at 8. Given Ms. Verbeck’s excellent past COERs, which, according to the government, were generated as she was having significant behavioral problems, the court cannot conclude what a special request COER would have reported. Furthermore, the PHS Manual dictates that the DCP "will follow up immediately on officers who have low COER ratings” and "[i]n all instances, the officer’s immediate supervisor must discuss the evaluation
. The other two mechanisms for directing an officer to a fitness-for-duty evaluation and MRB may be inapplicable here, as they appear to provide for discretionary referrals by an officer’s program or the Director of DCP. AR2-R57 to R58 (eCCIS CC23.8, Instruction 6, Section F(2)-(3)). The court makes no determinations in this regard.
. The government argues that not all fitness-for-duty evaluations need be considered by a MRB, Def.'s Cross-Mot. at 28-29; however, the regulations expressly state that "the final decision regarding duty status will be made by PHS MRB.” AR2-R124 (Pamphlet No. 47; Disability Evaluation Manual for the PHS’ Commissioned Corps, Chapter 4, Section D); see also AR2-R104 (eC-CIS CC49.3, Instruction 1, Section D(Z)) ("The Surgeon General (SG) shall appoint [MRBs] as necessary to review the case of any officer who may be entitled to retirement due to physical disability.”).
. In support of its claim that Ms. Verbeck’s letter did not constitute a request for a fitness-for-duty evaluation, the government cites to a memorandum prepared in 2009, seven years after the events at issue, from the Senior Medical Evaluations Officer, Medical Affairs Branch, to the Acting Director of the Surgeon General. See AR2-R323 to 325 (Mem. from Dr. Bernard W. Parker, Captain, US PHS to Acting Director, Surgeon General (Dec. 2, 2009)). That memorandum concluded that Ms. Verbeck's counsel requested "an extension in the officer’s time on active duty to complete her medical care, but there is no indication that a request for a [fitness-for-duty] evaluation was made.” AR2-R325. This conclusion is manifestly erroneous. Captain Parker likewise concluded that there were "no medical records” in Ms. Verbeck’s file to support the contention that she was unfit to be discharged, id., and that conclusion likewise is belied by the record.
Even if the Board relied on this memorandum for its conclusion. — an entirely unsupported proposition — it accepted without scrutiny the determinations of the Senior Medical Evaluations Officer. While Ms. Verbeck's counsel indeed requested an extension of time for Ms. Verbeek to complete her medical care, he also requested that Rear Admiral Davidson "allow her to be considered for a medical discharge.” AR-261 (Letter from Sheldon to Rear Admiral Davidson). The memorandum’s failure to address that portion of Ms. Verbeck's request does not excuse the Board's failure to do so.
. In the context of addressing whether Ms. Ver-beck’s condition required that the Director of the DCP by his own initiative refer Ms. Verbeek to a MRB, the Board declared that "[t]he record makes it very clear that Ms. Verbeek was capable of satisfactory or better performance of her duties.” AR2-R4 (Correction Board's Second Decision). The Board, however, did not specify whether it was making such a determination as to Ms. Verbeck’s psychiatric capacity to perform her duties or whether that conclusion took into account Ms. Verbeck's physical condition. The latter conclusion would have been difficult to reach given that Ms. Verbeek never received a contemporaneous physical evaluation, complete or otherwise.
. At the time of Dr. Nash’s evaluation, Ms. Verbeek was suffering from "a number of significant complications” due to her mastectomy, "including wound infections which ha[d] yet to resolve.” AR-189 (Letter from Captain Nash to Commander Atwood (Mar. 7, 2002)).
. Even if the government’s current arguments as to these matters provided sufficient merit to substantiate the Board's conclusions — which they do not — such explanations have been submitted “for the first time in response to [Ms. Verbeck’s] petition for judicial review[,]” and thus constitute "improper post hoc justification[s].” Poole v. Harvey, 571 F.Supp.2d 120, 126 (D.D.C.2008); see id. ("It is a ‘fundamental rule of administrative law’ that a court reviewing an agency’s decision 'must judge the propriety of [agency] action solely by the grounds invoked by the agency.’ " (quoting SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947))).
. Ms. Verbeck's request that the court remand her case to the Board with instructions that the Board allow her to supplement the record with work schedules and to depose Lieutenant (Junior Grade) Abaya and Commander Sowinski is not adopted. The Board lacks the power to order depositions, and Ms. Verbeck may submit supplementary materials to the Board on remand, in accord with the Board's procedural rules.