SUSAN G. BRADEN, Judge.
On September 8, 1993, Nathan T. Meidl ("Plaintiff") enlisted in the Army Reserve Officers' Training Corps ("Army ROTC") program while attending the University of Wisconsin. AR 209. On April 9, 1996, Plaintiff entered active duty in the United States Army. AR 10, 194-204. On April 30, 2000, he was appointed as a commissioned officer in the Active Guard Reserve ("AGR") program. AR 167.
Later in 2000, while serving in the AGR, Plaintiff began to experience bilateral foot pain that was aggravated by prolonged standing and running. AR 10. In 2001, he was diagnosed with pes planus.
On October 5, 2005 Plaintiff entered into active duty in Iraq as an Acquisitions Corps Officer. AR 10, 95. In April 2006, while lifting weights, he tore his left pectoralis major and injured his shoulder, requiring surgery. Id. Due to these injuries, Plaintiff had a limited range of motion and difficulty bearing more than five pounds of weight. Id. On April 26, 2006, he was diagnosed with hypertension. AR 11. As a result of his injuries and surgical treatment, Plaintiff reverted to AGR status. AR 10.
From October 10, 2008 to October 21, 2008, Plaintiff was again deployed to Iraq for a temporary tour of duty. AR 10. After his return, in April 2009, his pes planus was "graded as severe, bilaterally with pronation, intolerance to weight bearing, extended standing, and extended walking." AR 10-11. In June 2009, Plaintiff began to develop bilateral plantar fasciitis
On November 12, 2009, Plaintiff was examined at an orthopedic clinic in preparation for evaluation by a MEB.
On February 26, 2010, Plaintiff's commander, recommended that the Army not retain Plaintiff due to his left shoulder injury, left wrist pain, bilateral pes planus, and bilateral plantar fasciitis, because Plaintiff could not perform his Military Occupational Specialty ("MOS") as an acquisition or logistics officer. AR 8.
On February 28, 2010, a MEB considered Plaintiff's medical condition and concluded that his left shoulder, left wrist, pes planus, and plantar fasciitis did not meet the Army's retention standards. AR 10-13. The MEB found, however, that Plaintiff's left Achilles tendon rupture and hypertension met retention standards. AR 13. As a result, the MEB recommended referral to a Physical Evaluation Board ("PEB")
On March 9, 2010, before the PEB convened, Plaintiff was given an opportunity to have the MEB's findings reviewed by an impartial medical professional. AR 14. In addition, Plaintiff was afforded the opportunity to review the MEB's findings to decide whether he concurred, and if not, to submit a statement explaining any disagreement. Id. Plaintiff declined the opportunity for an impartial medical evaluation and did not dispute the findings and recommendation of the MEB. AR 15-17.
On March 25, 2010, the PEB considered Plaintiff's medical records, determined that Plaintiff's chronic shoulder pain and wrist pain conditions rendered him unfit for service, and rated each at a ten percent disability for a total of twenty percent disability.
On March 31, 2010, after the PEB issued a determination, the orthopedic clinic issued an Addendum indicating that although it had not examined Plaintiff's bilateral pes planus and plantar fasciitis, an examination by a podiatrist on April 13, 2009, these conditions did not meet retention standards. Id.
On April 7, 2010, Plaintiff acknowledged that he was informed of his rights by the PEB Liaison Officer ("PEBLO"). AR 21-27. Plaintiff was given three options: (1) accept the preliminary findings of the PEB and waive his right to a formal hearing; (2) contest the preliminary findings and waive his right to a formal hearing; and (3) contest the preliminary findings and demand a formal hearing. Id. Plaintiff decided to concur with the result of the PEB and waive a formal hearing of his case. Id.
On July 13, 2010, Plaintiff was discharged from active duty in the Army due to his disability. AR 30. Plaintiff was separated from the Army with disability severance pay, but did not receive medical retirement because his disability rating was less than thirty percent and he had less than twenty years of service. AR 19.
On February 10, 2011, Plaintiff filed a Complaint ("Compl.") in the United States Court of Federal Claims alleging that he was denied disability retirement pay and benefits to which he is entitled under 10 U.S.C. § 1201. Compl. ¶ 22. The February 10, 2011 Complaint also alleges that the PEB failed to rate his disabilities at an eighty percent level, to provide an adequate MEB evaluation, and to apply applicable evidentiary standards. Compl. ¶ 22. On May 6, 2011, the Government filed the Administrative Record ("AR 1-211") and a Motion For Judgment On The Administrative Record ("Gov't Mot."). On June 7, 2011, Plaintiff filed a Cross-Motion For Judgment On The Administrative Record ("Pl. Mot."), together with attached Exhibits ("Pl. Ex. at 1-10"). On July 8, 2011, the Government filed a Reply ("Gov't Rep."), together with a Supplemental Administrative Record ("SAR 1-16").
The jurisdiction of the United States Court of Federal Claims is established by the Tucker Act. See 28 U.S.C. § 1491. The Tucker Act authorizes the court "to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(1). The Tucker Act, however, is "a jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages. . . . [T]he Act merely confers jurisdiction upon [the United States Court of Federal Claims] whenever the substantive right exists." United States v. Testan, 424 U.S. 392, 398 (1976). Therefore, a plaintiff must identify and plead an independent contractual relationship, constitutional provision, federal statute, or executive agency regulation that provides a substantive right to money damages. See Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc) ("The Tucker Act itself does not create a substantive cause of action; in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages."). The burden of establishing jurisdiction falls upon the plaintiff. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990) (holding that the burden is on the plaintiff to allege facts sufficient to establish jurisdiction); see also RCFC 12(b)(1).
The February 10, 2011 Complaint invokes the jurisdiction of the United States Court of Federal Claims under the Tucker Act, 28 U.S.C. § 1491(a)(1) and 10 U.S.C. § 1201. Compl. ¶ 2. Therefore, the court has subject matter jurisdiction over the claims alleged for disability retirement therein. See Sawyer v. United States, 930 F.2d 1577, 1580-81 (Fed. Cir. 1991) (holding that claims challenging disability status under 10 U.S.C. § 1201 may be adjudicated by the United States Court of Federal Claims).
The United States Supreme Court has held that "the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498 (1975). Standing must be determined "as of the commencement of suit." Rothe Dev. Corp. v. Dep't of Def., 413 F.3d 1327, 1334 (Fed. Cir. 2005). The party invoking federal jurisdiction bears the burden of establishing standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Specifically, "a plaintiff must show [that] it has suffered an `injury in fact' that is . . . concrete and particularized and . . . actual or imminent, not conjectural or hypothetical; . . . the injury is fairly traceable to the challenged action of the defendant; and . . . it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 180-81 (2000) (internal citations omitted).
The February 10, 2011 Complaint alleges that Plaintiff has suffered an injury in fact that can be determined in a specific amount and is traceable to the Army's unlawful determination of disability retirement pay and benefits. Compl. ¶ 22. Therefore, the court has determined that Plaintiff has standing to bring the claims alleged in the February 10, 2011 Complaint.
A motion for judgment on the administrative record, pursuant to RCFC 52.1, is akin to an expedited trial on the record and has no counterpart in the Federal Rules of Civil Procedure. See RCFC 52.1, Rules Committee Note (July 13, 2009); see also Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005) ("[T]he judgment on an administrative record is properly understood as intending to provide for an expedited trial on the record."). Accordingly, on a motion for judgment on the administrative record, the court is required to determine whether the plaintiff has met the burden of proof to show that the relevant federal agency decision was without a rational basis or not in accordance with the law. Id. at 1348 (instructing the trial court to make "factual findings under RCFC [52.1] from the [limited] record evidence as if it were conducting a trial on the record"); see also Afghan Am. Army Servs. Corp. v. United States, 90 Fed. Cl. 341, 355 (2009) ("In reviewing cross-motions for judgment on the administrative record, the court must determine `whether, given all the disputed and undisputed facts, a party has met its burden of proof based on the evidence in the record.'" (citations omitted)). The existence of a material issue of fact, however, does not prohibit the court from granting a motion for judgment on the administrative record, nor is the court required to conduct an evidentiary proceeding. See Bannum, 404 F.3d at 1353-54 ("RCFC [52.1] requires the [United States] Court of Federal Claims, when making a prejudice analysis in the first instance, to make factual findings from the record evidence as if it were conducting a trial on the record.").
The Government argues that the United States Court of Appeals for the Federal Circuit and the United States Court of Federal Claims have consistently held that a Soldier's failure to exercise his right to a formal PEB waives his ability to preserve a claim in this court. See Stine v. United States, 92 Fed. Cl. 776, 798 (2010) ("To the extent plaintiff alleges error by the [informal] PEB, [Plaintiff's] waiver precludes the [c]ourt from reviewing such allegations."); see also Gant v. United States, 63 Fed. Cl. 311, 318 (2004) ("By waiving a formal hearing, plaintiff prevented [the Government] from . . . having an opportunity to entertain any claim or objection and to develop a full record that this court could review."), aff'd, 417 F.3d 1328, 1332 (Fed. Cir. 2005). In this case, Plaintiff waived the formal PEB hearing by initialing the entry on the last page of DA Form 199, stating "I concur and waive a formal hearing of my case." Gov't Mot. at 12.
Nevertheless, a waiver must be voluntary. See Stine, 92 Fed. Cl. at 792 (Plaintiff may "demonstrate involuntariness by showing, among other things, that he made the decision under duress, . . . that he was misled by his counsel's advice, . . . or that he was legally incompetent at the time of the waiver." (citations omitted)). Here, Plaintiff has not established that signing the waiver was involuntary or unknowing. Gov't Mot. at 14. Specifically, Plaintiff was not misled or misinformed, did not make the decision under duress, and was competent at the time he signed the waiver. Gov't Mot. at 14. Accordingly, Plaintiff waived his right to a judicial review of the informal PEB hearing. Gov't Mot. at 17.
Plaintiff responds that he only waived his right to a formal PEB hearing, not his right to judicial review of the informal PEB decision, since Army Regulations do not explain that this is a consequence of waiving a formal PEB hearing. Pl. Mot. at 7-8, 12. The cases cited by the Government are distinguishable because Plaintiff has not appealed to a board for correction of military records. Pl. Mot. 12-13. The court should narrowly construe waiver because military disability evaluation is non-adversarial and no right to counsel attaches until a formal PEB is convened. Pl. Mot. at 11 (citing Army Reg. 635-40 ¶ 4-21).
Even assuming that Plaintiff waived the right of judicial review, that waiver was unknowing and involuntary. Pl. Mot. at 9. First, Plaintiff was not aware of the totality of his disabilities, including asthma, sleep apnea, and mental health conditions, until after the informal PEB proceeding. Pl. Mot. at 9. Second, Plaintiff was misled because the Army failed to explain that waiver of judicial review would result from waiver of a formal PEB hearing. Pl. Mot. at 9-10. Finally, Plaintiff was not aware at the time of waiver that the MEB did not properly assess his range of joint motion in accordance with the Department of Veterans Affairs ("VA") disability worksheets. Pl. Mot. at 10.
The United States Court of Appeals for the Federal Circuit and the United States Court of Federal Claims have held that waiver of a formal PEB hearing also waives the right of judicial review of the informal PEB's determination in the United States Court of Federal Claims.
Nonetheless, the waiver is ineffective if it was involuntary. See Van Cleave v. United States, 402 F.3d 1341, 1344 (Fed. Cir. 2005) (holding that a waiver is effective only if it is a "knowing waiver"). For example, waiver is involuntary if it results from misrepresentation or deception by Army. See Moyer v. United States, 190 F.3d 1314, 1320 (Fed. Cir. 1999) (holding that an act is deemed involuntary if it "results from misrepresentation or deception on the part of government officers"); see also Gant, 63 Fed. Cl. at 319 ("An act induced by misrepresentation can render that act involuntary."). Misrepresentation "can be caused by providing misleading information or by failing to provide relevant information." Gant, 63 Fed. Cl. at 319.
Plaintiff contends that his waiver was invalid because he was not aware of the full extent of his disabilities until after his informal PEB. Pl. Mot. at 9. Plaintiff, however, does not argue that the Army concealed the existence or extent of his disabilities. No case has ever held that a plaintiff's failure to understand the extent of his medical problems renders a waiver involuntary. Moreover, according to the medical records Plaintiff attached to his brief, he was well aware that he had asthma and sleep apnea prior to the PEB's evaluation on March 25, 2010. Pl. Ex. at 2 (noting Plaintiff's intermittent asthma, mild obstructive sleep apnea, hypertension, and dyslipidemia on March 8, 2010). Plaintiff previously had surgery to address his sleep apnea. Id. Plaintiff was given opportunities to bring these conditions the attention of the MEB and PEB but chose not to do so. AR 15, 27 (Plaintiff affirming that "the MEB adequately reflected the complete spectrum of the Soldier's injuries and/or illness").
Plaintiff also contends that he was misled because the Army failed to explain that waiver of judicial review would result from waiver of a formal PEB hearing. Pl. Mot. at 9-10. However, the case law clearly establishes that when a Soldier waives his right to challenge the findings of an informal PEB, he waives his right to challenge the informal PEB findings in the United States Court of Federal Claims. In Gant, the United States Court of Federal Claims observed that the military regulations and forms were silent on the impact of wavier of a formal PEB hearing on judicial review, but nonetheless concluded that waiving formal PEB review results in waiver of judicial review of the informal PEB decision. 63 Fed. Cl. at 319. Further, it is a "well-established rule that a citizen is presumed to know the law, and that ignorance of the law will not excuse." Page v. United States, 51 Fed. Cl. 328, 339, n.13 (2001) (internal quotation marks omitted).
Finally, Plaintiff asserts that his PEB Liaison Officer did not notify him that the MEB improperly measured his left shoulder and left wrist ranges of joint motion by failing to re-measure him after three repetitions of each joint. Pl. Mot. at 10. Assuming this is true, this argument is irrelevant because the PEB found these conditions to be unfitting and properly rated the conditions in accordance with the Veterans Affairs Schedule for Rating Disabilities ("VASRD"). AR 19. The VA rated Plaintiff's left wrist and left shoulder conditions at ten percent each, the same rating the Army gave these conditions, and Plaintiff does not suggest that he should have been rated higher for these conditions. Compl. ¶ 17. Further, his PEB Liaison Officer was only required to compare the PEB findings with Plaintiff's MEB findings, verify that the PEB did not overlook any condition that may substantially alter his benefits, and "[c]heck each [joint injury] to assure the member has been rated the most advantageous way." Army Reg. 635-40 ¶¶ C-7(b)(1)(a)-(b). Plaintiff has offered no evidence that he was not rated in the most advantageous way with respect to these two conditions. Therefore this alleged failure is not sufficient to make Plaintiff's waiver involuntary.
Therefore, the court has concluded that Plaintiff voluntarily waived judicial review of the informal PEB. Nevertheless, this does not preclude review of by the Army Board for Correction of Military Records ("ABCMR") or review by the United States Court of Federal Claims of any decision by that Board. See Stine, 92 Fed. Cl. at 794 ("[W]aiver of review of an [informal PEB] determination is not equivalent to waiver of the right to judicial review of subsequent administrative review of the case to determine whether the Navy had committed error." (internal quotation marks omitted)); Van Cleave v. United States, 70 Fed. Cl. 674, 677 (2006) ("[P]laintiff's voluntary acceptance of the informal PEB decision waived review by a formal Physical Evaluation Board, but did not necessarily prevent his appeal to the Board for Correction of Naval Records[.]").
Because waiver is not jurisdictional and does not preclude judicial review of subsequent administrative review of the case, this case is hereby remanded to the ABCMR for further administrative action pursuant to RCFC 52.2.
On remand, the ABCMR is to consider the following issues: whether Plaintiff's separation from active duty complied with applicable laws and policies; whether Plaintiff had unfitting physical conditions in addition to shoulder and wrist pain at the time of separation; and whether Plaintiff's disability rating was appropriate. The ABCMR is directed to take any corrective action the board deems appropriate based on its review.
