Judges: Firestone
Filed: Oct. 21, 2013
Latest Update: Mar. 28, 2017
Summary: In the United States Court of Federal Claims No. 11-339C (Filed: October 21, 2013) ) KATHERINE G. COOPER, ) ) Plaintiff, ) Abandoned Back Pay Claim Under 37 ) U.S.C. § 204; Retroactive Disability v. ) Retirement Pay Under 10 U.S.C. § ) 1201; First Competent Board Rule; THE UNITED STATES, ) Military Correction Board; ) Constructive Service Doctrine; Defendant. ) Dismissed For Lack Of Jurisdiction. ) ) ) Jason Ellis Perry, Cheshire, CT, for plaintiff. Lauren S. Moore, Civil Division, United States
Summary: In the United States Court of Federal Claims No. 11-339C (Filed: October 21, 2013) ) KATHERINE G. COOPER, ) ) Plaintiff, ) Abandoned Back Pay Claim Under 37 ) U.S.C. § 204; Retroactive Disability v. ) Retirement Pay Under 10 U.S.C. § ) 1201; First Competent Board Rule; THE UNITED STATES, ) Military Correction Board; ) Constructive Service Doctrine; Defendant. ) Dismissed For Lack Of Jurisdiction. ) ) ) Jason Ellis Perry, Cheshire, CT, for plaintiff. Lauren S. Moore, Civil Division, United States ..
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In the United States Court of Federal Claims
No. 11-339C
(Filed: October 21, 2013)
)
KATHERINE G. COOPER, )
)
Plaintiff, ) Abandoned Back Pay Claim Under 37
) U.S.C. § 204; Retroactive Disability
v. ) Retirement Pay Under 10 U.S.C. §
) 1201; First Competent Board Rule;
THE UNITED STATES, ) Military Correction Board;
) Constructive Service Doctrine;
Defendant. ) Dismissed For Lack Of Jurisdiction.
)
)
)
Jason Ellis Perry, Cheshire, CT, for plaintiff.
Lauren S. Moore, Civil Division, United States Department of Justice, Washington, DC,
with whom were Stuart F. Delery, Assistant Attorney General, and Jeanne E. Davidson,
Director, Commercial Litigation Branch, for defendant. Major Nicole L. Fish, United
States Army Litigation Division, Fort Belvoir, VA, of counsel.
OPINION
FIRESTONE, Judge.
In this case, Ms. Katherine G. Cooper (“Ms. Cooper” or “the plaintiff”) alleges
that she became disabled after having been injured in 2005 while serving on active duty,
and that she is entitled to disability pay stemming from that injury. In this connection,
she contends that the Army wrongfully (1) terminated her 2006 Medical Evaluation
Board (“MEB”), 1 (2) failed to provide her with mandatory separation counseling, and (3)
did not convene a new MEB prior to separating her from active duty in 2007.
The plaintiff’s request for relief has evolved considerably over the course of this
litigation. 2 Ms. Cooper originally focused her action on a claim for back pay under the
Military Pay Act, 37 U.S.C. § 204 (2012), premised on her allegedly unlawful and
involuntary discharge from active duty. The complaint, however, appeared to be making
a claim for disability pay based on the injury she sustained while on active duty. In
response to questions at oral argument, the plaintiff expressly abandoned her back pay
claim, and instead asserted that she is in fact owed disability payments under 10 U.S.C. §
1201 (2012) 3 for the period between September 7, 2007 (when she was separated from
active duty) and January 3, 2013 (when she was medically retired from the United States
Army Reserves (“USAR”) with a 50% disability rating). This shift by the plaintiff
appears to be related to two simultaneous but independent Army adjudications
concerning Ms. Cooper: (1) the August 7, 2012 decision of the Army Board for the
1
MEBs “are convened to document a Soldier’s medical status and duty limitations insofar as
duty is affected by the Soldier’s status.” Army Regulation (“Army Reg.”) 635-40 ¶ 4-10. If an
MEB finds that a soldier does not meet Army medical retention standards, the MEB generally
must refer the soldier to a Physical Evaluation Board (“PEB”) for disability processing. See id.
at App. C ¶ 6. The PEB then decides whether the soldier is physically fit or unfit for duty. Id. at
¶ 7. If unfit, the PEB determines whether the soldier’s disability entitles him or her to disability
retirement or severance pay. Id. The PEB is not bound to the findings or recommendations of
the MEB. Id. at ¶ 6.
2
Ms. Cooper’s shifting claims are discussed in Section I.B, infra.
3
Section 1201 provides that “[u]pon a determination by the Secretary concerned that a member .
. . is unfit to perform the duties of the member’s office, grade, rank, or rating because of physical
disability . . . the Secretary may retire the member . . . with retired pay . . . .”
2
Correction of Military Records (“ABCMR”), which determined, following a remand by
this court, that Ms. Cooper’s separation from active duty was voluntary and proper; and
(2) the August 8, 2012 decision of an Army Informal PEB, which recommended that Ms.
Cooper be discharged from the USAR due to physical disability and rated as 50%
disabled. 4
Presently before the court are the United States’ (“the defendant” or “the
government”) motions to dismiss for lack of jurisdiction and for failure to state a claim
pursuant to Rules 12(b)(1) and 12(b)(6) of the Rules of the United States Court of Federal
Claims (“RCFC”), or in the alternative, for judgment on the administrative record
pursuant to RCFC 52.1. The plaintiff has cross-moved for judgment on the
administrative record.
The court concludes for the reasons that follow that it lacks jurisdiction to hear the
plaintiff’s claim for disability pay under 10 U.S.C. § 1201 because no military board has,
as of yet, denied or refused to consider the plaintiff’s claim for disability pay dating from
her discharge in 2007. Therefore, the government’s 12(b)(1) motion to dismiss for lack
of subject-matter jurisdiction is GRANTED, and the government’s RCFC 12(b)(6)
motion to dismiss and the parties’ cross-motions for judgment on the record are
DENIED-AS-MOOT.
4
The disability rating is a percentage that represents, “as far as can practicably be determined,
the average impairment in civilian occupational earning capacity resulting from certain diseases
and injuries, and their residual conditions.” Department of Defense Instruction 1332.39
(November 1996).
3
I. Background 5
A. Ms. Cooper’s military service and medical evaluation
Ms. Cooper was appointed as a reserve commissioned officer in the Army Nurse
Corps, effective September 2, 2003. She served on active duty at the Walter Reed Army
Medical Center for the duration of her four-year commitment. Ms. Cooper separated
from active duty on September 7, 2007, having attained the rank of captain.
Ms. Cooper fell and injured her back sometime in early 2005. Following a “fit for
duty” examination on November 9, 2005, the Army referred Ms. Cooper to an MEB,
which was conducted on March 15, 2006. The MEB determined that Ms. Cooper
suffered from medically unacceptable chronic low back pain and referred her to a PEB.
On March 27, 2006, Ms. Cooper’s Physical Evaluation Board Liaison Officer
(“PEBLO”) 6 counseled the plaintiff on the MEB’s findings and conclusion that she be
referred to a PEB. 7 This counseling included the requirements and procedures for
5
The facts are undisputed unless otherwise noted, and are taken from the administrative record
(“AR”), the parties’ briefs, and associated attachments. Pursuant to RCFC 5.4(a)(3), with certain
exceptions the plaintiff stipulated to the facts presented in the government’s briefs. Pl.’s Cross-
Mot. 2. The government expressly reserved the right to dispute the plaintiff’s factual allegations
in the event that the court denied its first motion to dismiss. See Def.’s Mot. to Dismiss, ECF
No. 16, at *3 n.2.
6
A PEBLO is “responsible for counseling soldiers regarding their rights and privileges at each
step of the evaluation.” AR 19, 21-22; see also Army Reg. 635-40 ¶ 3-8.
7
The court acknowledges that the record remains less than clear as to the precise chronology of
events surrounding Ms. Cooper’s MEB. The record is sufficient, however, for the court to
conclude that Ms. Cooper’s PEBLO, Mr. Larry Gies, counseled Ms. Cooper as to the MEB’s
findings on March 27, 2006. Mr. Gies attested to providing such counseling, which is also
documented in the Medical Evaluation Board Internal Tracking Tool. Although the plaintiff has
contested the appropriateness of the ABCMR’s reliance on Mr. Gies’ declaration, Ms. Cooper
has never actually challenged that declaration’s accuracy.
4
appealing the MEB decision, as well as for requesting a continuation on active duty
should the PEB find her to be unfit. On April 5, 2006, the plaintiff filed an appeal
disputing the MEB’s recommendation that she be referred to a PEB. Id.
The Army reevaluated Ms. Cooper in response to her appeal on April 19, 2006.
After the plaintiff reported improvement as a result of new medical treatments, the
evaluating physician recommended that her MEB be cancelled and that she be returned to
duty with the limitation that she be afforded an alternate Army Physical Fitness Test
(“APFT”). 8 Consistent with this recommendation, the plaintiff’s MEB was terminated.
See AR 23; Def.’s Reply App. at 7.
On November 30, 2006, Ms. Cooper prepared and signed a “Pre-separation
Counseling Checklist for Active Component Service Members,” in which she noted that
her separation was voluntary and listed September 9, 2007 as her anticipated separation
date. Two weeks later Ms. Cooper completed a “Reproductive Health History” form in
which she indicated to the Army that she was pregnant.
In August 2007 Ms. Cooper underwent a separation medical examination. Ms.
Cooper indicated that she still suffered from chronic back pain, which limited her ability
to work in her primary medical specialty. The examining physician recorded that Ms.
Cooper suffered from “[c]hronic lower back pain–already undergone MEB + found unfit
8
Ms. Cooper’s statements concerning her improved health are not inconsistent with other record
evidence suggesting her physical ability to perform her duties between her April 19, 2006
medical evaluation and her separation from active duty on September 7, 2007. Ms. Cooper’s
2006 and 2007 Officer Evaluation Reports (“OER”) indicate that she maintained the appropriate
level of physical fitness and military bearing—notwithstanding her exemption from Army
weight control standards and her use of the APFT. AR 38-39, 44-45.
5
but allowed to finish commitment.” Pl.’s Cross-Mot. App. Tab C. The physician
apparently did not recommend that an MEB be convened to address her back pain. On
September 7, 2007, Ms. Cooper fulfilled her four year commitment and was honorably
discharged from active duty.
The day after separating from active duty, Ms. Cooper began serving as the Head
Nurse of a pediatric unit as a reserve commissioned officer in the USAR. Although Ms.
Cooper performed substantially similar duties as she had while serving on active duty,
she did not work full time at a hospital. See Oral Argument Tr.13:12-14, September 17,
2013. On October 17, 2007, Ms. Cooper received an “Individual Sick Slip,” DD Form
689, stating, “Soldier currently evaluated by MEB awaiting results of VA compensation.
Soldier new to unit and needs documentation for fitness of duty for Reserves.” AR 289.
The Army convened another MEB for Ms. Cooper on March 1, 2012. 9 On August
8, 2012, an informal PEB convened and found that the plaintiff could not sit or stand for
more than 30 minutes or lift more than 20 pounds because of mechanical low back pain.
It found that her condition prohibited all standard and alternate APFT events, and
recommended that Ms. Cooper be permanently retired and that her combined disabilities
be rated at 50%. The Secretary of the Army approved these findings and on January 3,
2013, the plaintiff was discharged and placed on the retired list. See Pl.’s Cross-Mot.
App. Tab B.
9
The record does not clearly indicate whether or not Ms. Cooper’s 2012 MEB was connected to
her 2007 DD Form 689. This information is not relevant, however, to the court’s jurisdictional
analysis.
6
B. The instant litigation
Ms. Cooper filed her complaint in this court on May 25, 2011—prior to the
convening of her 2012 MEB—in which she claimed that the Army’s alleged errors
rendered “her discharge [from active duty] wrongful and entitle[d] her to basic pay and
allowances under [the Military Pay Act,] 37 U.S.C. § 204.” Compl. ¶ 15. Specifically,
Ms. Cooper claimed that the Army had acted contrary to its regulations by (1)
terminating her 2006 MEB proceeding, (2) failing to provide her with mandatory
separation counseling, and (3) not convening a new MEB proceeding prior to separating
her from active duty. Her complaint further alleged that her separation had been
involuntary, and that she had requested to continue on active duty.
On December 20, 2012, the government moved to dismiss her complaint for lack
of jurisdiction on two grounds. First, the government contended that, under Tippett v.
United States, 185 F.3d 1250 (1999), the voluntary nature of Ms. Cooper’s separation
divested the court of jurisdiction to hear a claim for wrongful separation. Second, the
government suggested that Ms. Cooper’s suit was actually one for disability pay, which
necessitated a final administrative decision regarding her disability claim prior to filing in
federal court. In response, the plaintiff questioned the continued force of Tippett, and
strenuously denied that Ms. Cooper was seeking retroactive disability retirement pay
under 10 U.S.C. § 1201. 10
10
In opposing the government’s motion to dismiss, the plaintiff contended:
The defendant argues that we are asking this Court to rule that Ms. Cooper was
disabled. . . . This is not true. . . . The defendant seems to misunderstand that
7
After briefing on the government’s motion to dismiss for lack of jurisdiction, the
government filed an unopposed motion to remand the case to the ABCMR, which the
court granted on April 9, 2012. Order, ECF No. 23. The remand order, which centered
on the propriety of Ms. Cooper’s discharge, stated:
The ABCMR is to determine the circumstances of the termination of Ms.
Cooper’s medical disability evaluation and whether she was properly
separated from active duty at the end of her four-year commitment.
Further, the review will enable the ABCMR to determine whether Ms.
Cooper’s separation was voluntary. The Board may make findings as
respects the merits of this case.
Id.
The ABCMR issued its decision on August 7, 2012. After reviewing the evidence
before it, the ABCMR concluded that Ms. Cooper “both voluntarily submitted a request
for resignation and was properly separated.” AR 16. Specifically, the ABCMR
concluded that Ms. Cooper was referred first to an MEB in 2006 based on her inability to
overcome her chronic back pain. The board also found that Ms. Cooper had appealed the
MEB’s findings, which led to her subsequent medical reexamination and the eventual
termination of her MEB. The ABCMR also concluded that although Ms. Cooper might
have submitted a request to continue on active duty during her 2006 MEB, that this
while the basis of Ms. Cooper’s required retention on active duty was a result of
her disabilities failing retention standards, the complaint seeks active duty pay and
allowances required to be paid members under 37 U.S.C. § 204. . . . Nowhere in
the complaint does Ms. Cooper claim entitlement to disability retirement pay
under 10 U.S.C. [§] 1201 et. seq.
Pl.’s Resp. to Def.’s Mot. to Dismiss, ECF No. 17, at *13 (January 21, 2012) (citations omitted).
8
request “was rendered meaningless . . . when [Ms. Cooper’s] condition improved and her
MEB was terminated.” AR 15.
Following the ABCMR’s decision on remand, the court received additional
briefing, which was completed on August 23, 2013. 11 Oral argument was heard on
September 17, 2013. During oral argument, counsel for the plaintiff indicated that the
plaintiff was withdrawing her request for reinstatement to active duty with back pay, and
that she instead wanted retroactive disability pay from the date of her separation in 2007
until January 2013. Counsel for the plaintiff addressed the nature of Ms. Cooper’s claim
as follows:
COURT: Now, you have withdrawn your request for reinstatement. Tell
me what it is that you think your client should be entitled to at this point.
MR. PERRY: Yes, Your Honor. And along the lines of what [counsel for
the government] stated in Barnick, the remedy being the entitlement to
wrongfully withheld disability pay, that’s essentially the breadth of her
entitlement . . . . 12
11
On March 14, 2013, the plaintiff withdrew her claim for reinstatement, but maintained her
claim for back pay through the effective date of her discharge—January 3, 2013. See Pl.’s Resp.
and Cross-Mot. 3, ECF No. 38.
12
Prior to this exchange with the court, counsel for the government had stated:
Barnick has held that the constructive service doctrine does not apply when a
plaintiff claims that she should have been retained on active duty merely for
disability evaluation. Barnick says that, the Federal Circuit case. Also, Williams,
this court’s case, 2011, says that where a service member concedes . . . that she
wasn’t fit . . . for duty, but requests reinstatement for the purposes of contesting a
disability rating, the appropriate remedy is not application of the constructive
service doctrine, but rather a retroactive disability determination and payment of
any wrongfully denied disability benefits. In other words, [Ms. Cooper] can’t get
active duty pay no matter what.
Oral Argument Tr. 24:5-18, September 17, 2013.
9
Oral Argument Tr. 25:22-25 to Tr. 26:1-8, September 17, 2013.
II. DISCUSSION
A. Standard of review for RCFC 12(b)(1) motion to dismiss for lack of
jurisdiction 13
The Tucker Act provides this court with jurisdiction over “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) (2012). However, because it does not create a substantive right
enforceable against the United States, a plaintiff cannot rely on the Tucker Act alone.
United States v. Testan, 424 U.S. 392, 398 (1976). Rather, the plaintiff must establish
that her case fits within the scope of some independent money-mandating source. See
Martinez v. United States,
333 F.3d 1295, 1303 (Fed. Cir. 2003).
B. The court lacks jurisdiction over the plaintiff’s claim for retroactive
disability retirement pay because there has not been a final
determination denying the plaintiff’s claim
As discussed above, it is now clear that the plaintiff is seeking retroactive
disability retirement pay from the date when she was separated from active duty
(September 7, 2007) through the date when she was medically retired from the USAR
with a 50% rating (January 3, 2013). See Oral Argument Tr. 26:1-8, September 17,
2013. In its initial briefing, the government argued that the plaintiff appeared to be
13
Although the government has not expressly renewed its RCFC 12(b)(1) motion following the
decision of the ABCMR, this court has an independent duty to address its jurisdiction. See
Holmes v. United States, 657 F.3d 1303, 1311 (Fed. Cir. 2011).
10
making a claim for disability pay, and on that basis challenged the court’s jurisdiction on
the ground that Ms. Cooper had not yet petitioned a competent military board for such
relief. The government contended that the plaintiff could not make a claim for disability
pay stemming from the date of her discharge without an Army decision denying her
request.
The court agrees with the government that because Ms. Cooper presently seeks
disability pay dating from her discharge, rather than back pay, Ms. Cooper’s complaint
must be dismissed on the ground that she failed to first seek such relief from a competent
military board before filing suit in this court. In Chambers v. United States, the Federal
Circuit explained that in contrast to claims for back pay, in which a service member may
choose to file in this court without having first sought administrative relief, the rule for
disability retirement pay is different. Chambers v. United States, 417 F.3d 1218, 1224-25
(Fed. Cir. 2005). Before seeking disability pay, the Circuit explained, a service member
must first demonstrate that the claim for disability pay was heard by a competent military
board, or show that the military upon request refused to consider the claim. See id. at
1224. This distinction, the Federal Circuit stated, is due to the fact that 10 U.S.C. § 1201
expressly entrusts to the military boards “‘the task of determining whether a serviceman
should be retired for disability . . . .’” Id. (quoting Friedman v. United States,
310 F.2d
381, 389 (Ct. Cl. 1962)). As such, the Federal Circuit has made clear that “the Court of
Federal Claims has no jurisdiction over disability retirement claims until a military board
evaluates a service member’s entitlement to such retirement in the first instance.” Id. at
1225.
11
Here it is undisputed that Ms. Cooper never sought disability pay from a
competent military board for the period beginning with her 2007 separation from active
duty. Ms. Cooper’s initial claim for back pay, which was based on her allegedly
wrongful discharge, was presented to the ABCMR following this court’s remand. The
ABCMR did not, however, consider Ms. Cooper’s eligibility for disability pay. Rather,
the ABCMR concluded that (1) the Army had not improperly terminated Ms. Cooper’s
2006 MEB, (2) Ms. Cooper’s separation had been voluntary, and (3) the Army had
properly separated Ms. Cooper from active duty. Although this court might have had
jurisdiction if Ms. Cooper had demonstrated that, at the time of her discharge, she had
sought and been denied consideration of a disability claim by an appropriate board,
Chambers, 417 F.3d at 1225, she has not made—nor can she make—that showing. 14
Thus, there has not been any decision by a competent military board regarding Ms.
Cooper’s eligibility for retroactive disability pay from the date of her discharge until
January 3, 2013.
Absent evidence of a competent board ruling on her claim for retroactive disability
pay dating from her date of discharge, there is nothing for the court to review. Under
Chambers, this court lacks subject-matter jurisdiction over Ms. Cooper’s claim for
disability pay. Id.
14
There is no evidence to suggest that the Informal PEB that ruled on the plaintiff’s disability
claim in 2012 considered her claim for disability pay dating from her discharge in 2007. During
oral argument, the plaintiff stated that PEBs “are not currently entertaining issues about
retroactivity.” See Oral Argument Tr. 33:23-35, 34:1-2. The plaintiff will need to make an
appropriate claim before a competent Army board if she wishes to pursue her claim for
retroactive disability pay.
12
III. CONCLUSION
For these reasons, Ms. Cooper’s claim for retroactive disability pay—her only
claim before this court—must be dismissed without prejudice. The government’s motion
to dismiss under RCFC 12(b)(1) for lack of jurisdiction is therefore GRANTED. The
government’s RCFC 12(b)(6) motion to dismiss for failure to state a claim and the
parties’ RCFC 52.1 motion for judgment upon the administrative record are DENIED-
AS-MOOT. The Clerk is directed to enter judgment accordingly. Each party shall bear
its own costs.
IT IS SO ORDERED.
s/Nancy B. Firestone
NANCY B. FIRESTONE
Judge
13
