                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

JAMES DANIEL FULBRIGHT,

                      Plaintiff,

                      v.                          Case No. 1:12-cv-01506 (CRC)

JOHN M. MCHUGH, Secretary, United
States Army

                      Defendant.

                                   MEMORANDUM OPINION

       For 25 years, plaintiff James Fulbright has sought retroactive disability retirement from the

Army based on injuries he suffered while in service. In this suit under the Administrative

Procedures Act (“APA”), he challenges a 2009 decision by the Army Board for Correction of

Military Records denying, for the second time, his request for disability retirement status. The

Secretary of the Army has moved to dismiss and both parties have moved for summary judgment.

In his motion to dismiss, the Secretary argues that a prior ruling by the Court of Federal Claims

(“CFC”) that Fulbright’s claims were barred by the Tucker Act’s statute of limitations precludes his

APA claims here; that Fulbright’s claims are separately barred by the APA’s statute of limitations;

and that Fulbright may not sue in this Court under the APA because he could have received the

relief he seeks in his Tucker Act case before the CFC. The Court will deny the Secretary’s motion

to dismiss. Fulbright’s APA suit is not precluded by the CFC’s prior decision because the Tucker

Act’s statute of limitations operates differently than the APA’s, and the latter had not expired when

Fulbright brought this suit. Moreover, the CFC could not have provided Fulbright the relief he

seeks in this action because he solely requests injunctive relief, which the CFC can only grant

ancillary to monetary damages.
        The Court also concludes, however, that the board’s decision denying Fulbright’s request

for disability benefits was adequately reasoned and based on sufficient evidence. It will, therefore,

grant the Secretary’s motion for summary judgment and deny Fulbright’s.

        I.      Background

                A. Regulatory Background

        Military disability retirement entitles former servicemembers to receive increased retirement

pay and other enhanced benefits relative to standard retirement. See Smalls v. United States, 471

F.3d 186, 190 (D.C. Cir. 2006). Qualifying for disability retirement, however, is no small task.

Military regulations establish a complex web of procedures for obtaining disability benefits after

leaving active service. While the bulk of these regulations need not be discussed here, a brief

summary of the pertinent rules may aid in understanding the facts and legal issues involved in this

case.

        Obtaining disability retirement from the Army, where Fulbright served, begins with an

examination of the soldier by an Army medical examiner. See Army Reg. 635–40 ¶ 4–9. The

medical examiner diagnoses the servicemember’s medical conditions and makes a determination as

to whether he is medically qualified to perform his particular duties. Id. If the medical examiner

finds the soldier fit for duty, then he is not eligible for disability retirement. If the medical

examiner finds the soldier unfit for duty—or if the servicemember suffers from certain enumerated

conditions—the Army will convene a Medical Evaluation Board (“MEB”) to review the medical

examiner’s diagnosis and fitness determination. Id. ¶¶ 4–9, 10; see also Army Reg. 40-501 Ch. 3.

If the MEB concludes that the soldier is unfit for duty due to his or her diagnosed conditions, the

Army may convene yet another board—a Physical Evaluation Board (“PEB”)—to review the

MEB’s findings. Army Reg. 635-40 ¶ 4–13. The PEB conducts a more thorough investigation into

the nature and permanency of the servicemember’s condition and makes independent findings as to

                                                     2
whether the servicemember is fit for duty and qualifies for disability retirement. 1 Id. ¶¶ 4–17, 19.

If the PEB determines that a soldier qualifies for disability retirement, it assigns a disability

percentage rating based on the Department of Veterans Affairs’ Schedule for Rating Disabilities.

Id. ¶¶ 3–5, 4–19i. The assigned disability rating affects the level of benefits a disabled soldier will

receive. 2 See id. PEB disability retirement recommendations are reviewed by the Army Physical

Disability Agency (“APDA”), Id. ¶ 4–24, within the Army Human Resources Command. See U.S.

Army Human Resources Command Website,

www.hrc.army.mil/TAGD/US%20Army%20Physical%20Disability%20Agency. Only upon

acceptance of a PEB recommendation by the APDA will a servicemember become eligible to

receive disability retirement benefits.

       Among several avenues of appeal open to a servicemember throughout this extensive

process, he may, within three years of the relevant decision, request that the Army Board for

Correction of Military Records (“ABCMR” or “board”) review an adverse disability retirement

determination. Army Reg. 635-40 ¶ 2–12. The ABCMR will review the determination for “error or

injustice.” Id.

                  B. Factual Background

       James Fulbright joined the United States Army as an infantryman in 1974 and went on to

serve in the military police branch, first as a second lieutenant and eventually as a captain.

Administrative Record (“AR”) 193–95, 202. Our story begins in 1978, when Fulbright fractured



1
  Even if the PEB finds that the servicemember has a disability that renders him unfit for duty, the
Army can deny disability benefits if, among other reasons, the PEB finds that the disability was the
result of misconduct or willful neglect. See Army Reg. 635-40 4-19a(3)(a), (b).
2
 The VA rating is designed to estimate the extent to which the soldier’s disabilities will impair his
or her future earning potential. 38 C.F.R. § 4.1. A 50 percent disabled servicemember under the
VA Schedule would thus be expected to generate half of his otherwise expected earnings at the time
of that designation. See id.
                                                    3
his right ankle and sprained his left ankle and knee in a parachuting accident. Id. at 187. He

aggravated his left knee sprain the next year. Id. As a result of these injuries, Fulbright was placed

on restricted duty and prohibited from parachute jumping and running more than half a mile. Id. at

139.

       Over a decade later, in 1989, Fulbright was passed over for promotion to major for a second

time. Id. at 199. The decision not to promote Fulbright was apparently unrelated to his injuries; the

Army based the decision on his overall performance and the limited slots available. Id. Because

Army regulations require release from active service after missing promotion twice, Fulbright was

honorably discharged from active duty “not by reason of physical disability” and transferred to

inactive ready reserve status later that year. Id. at 197–99.

       As required by regulation, Fulbright underwent an Army medical exam before his release

from active duty. Id. at 140–41. He was diagnosed with lower back pain, chondromalacia patella

(inflammation of the knee), a history of traumatic separation in both shoulders, and left foot trauma.

Id. The examiners pronounced Fulbright physically fit, albeit with some limitations to his day-to-

day activities. Id.; see also Army Reg. 40-501 ¶ 7–3. The medical examiner’s assessment was

consistent with the one Fulbright received after his parachuting accident in 1978. AR 139. In 1990,

a year after his separation from active duty, Fulbright applied for, and the VA awarded him,

service-connected disability compensation at a rating of 50 percent based on the same injuries that

were diagnosed in his Army separation exam, in addition to hypertension. Id. at 167–68. The VA

and Army have distinct systems for awarding disability benefits, neither of which is binding on the

other. See, e.g., Rudo v. Geren, 818 F. Supp. 2d 17, 23 n.4 (D.D.C. 2011).

       The same year, Fulbright requested that the Army Reserve Personnel Center initiate a MEB

to transfer him from the inactive ready reserve group and designate him as medically retired. AR

93–95. The Army declined his request for a MEB, but, in contrast to his 1989 separation

                                                   4
examination that found him fit for active duty, the Army agreed that Fulbright did not meet the

standards for retention in the inactive reserves due to the injuries to his right ankle. Id. at 102.

Fulbright apparently was not given the option of disability retirement, however, and instead elected

to transfer to the retired reserves while continuing to maintain that he should be eligible for

disability retirement. Id. at 96.

          In 1992, Fulbright applied to the ABCMR for a record correction, arguing that his 1989

separation medical examination and subsequent VA diagnosis demonstrated that he should have

received medical disability retirement when he was released from active duty. Id. at 183. The

ABCMR denied his request, finding that Fulbright had been physically fit for duty at the time of his

separation from active duty service. The board based its finding on the 1989 separation

examination—which, as previously noted, found Fulbright fit for service—as well as a letter to the

board from the Office of the Surgeon General indicating that Fulbright “met retention standards at

the time of discharge and an MEB was not warranted.” Id. at 183–84, 187. 3 The board concluded

further that the VA’s 50 percent disability rating was not binding on the ABCMR because the VA

does not assess a servicemember’s fitness for duty when determining eligibility for its separate

system of retirement benefits. Id. at 186. The ABCMR accordingly found that there was no

evidence to support Fulbright’s contention that his injuries prevented him from performing his

duties when relieved from active duty in 1989. Id. at 185.

          After first petitioning the Army Human Resources Command, Fulbright found himself back

before the ABCMR fifteen years later, in 2008. He argued that the board’s 1992 decision denying

his request for an MEB had been erroneous and that he should have been promoted to major from

the inactive reserves in 1990. Id. at 76. Waiving its three-year statute of limitations in the interest

of justice, the ABCMR agreed with Fulbright that he should have been awarded a promotion to

3
    The record is unclear as to why the Surgeon General provided the letter.
                                                    5
major while in the reserve group. Id. at 77. It did so primarily because Human Resources

Command found that Fulbright was not promoted to major in 1990 only because of an

administrative error: The Office of Promotions had not received Fulbright’s 1989 medical

examination that showed him fit for duty. Id. at 87–88. As to his request for a MEB, however, the

ABCMR found that Fulbright had failed to provide evidence demonstrating that he was disabled

under army regulations, citing the same reasons it gave in its 1993 decision. Id.

       Fulbright requested reconsideration of the ABCMR’s decision, arguing again that the VA’s

1990 disability rating is evidence that he should have received disability retirement; that his

conditions “could have been exacerbated” between the 1989 physical and his 1991 retirement

thereby entitling him to disability retirement even if he was fit for service in 1989; and that the

Army should have conducted a new medical examination before he retired from the reserve group.

Id. at 12–15. The ABCMR denied his request in December 2009, again citing his 1989 physical

and distinguishing the roles of the Army and the VA in determining disability. Id. at 9–10. The

board also addressed the Army’s 1991 determination that Fulbright was not fit for service in the

reserve group, stating that “[i]t appears the Command Surgeon . . . . presumably made a

determination that [Fulbright’s] condition was not aggravated by service and, therefore, he was not

eligible to undergo an [MEB.]” Id. at 9. The board further explained that it would be incongruous

both to correct Fulbright’s record to promote him to major, which required the Army to find

Fulbright medically qualified for service, and to award him disability retirement, which required the

Army to find precisely the opposite. Id.

       Fulbright then brought suit under the Tucker Act, 28 U.S.C. § 1491, in the Court of Federal

Claims (“CFC”), claiming that the ABCMR erred in denying him retroactive medical retirement.

Fulbright v. United States (“Fulbright I”), 97 Fed. Cl. 221, 229 (Fed. Cl. 2011), aff’d, 480 F. App’x

998 (Fed. Cir. 2012). The CFC determined that Fulbright’s claim under the Tucker Act accrued

                                                   6
either at the date of his release from active duty in 1989 or, at latest, the 1993 ABCMR decision.

The January 2009 ABCMR decision, in the CFC’s view, constituted a denial of reconsideration that

did not restart the Tucker Act’s statute of limitations period, as a new decision would have. Id. at

230–31. Accordingly, the CFC found that Fulbright’s claims were barred by the Tucker Act’s six-

year statute of limitations. Id. Fulbright alternatively requested that the CFC transfer his claims to

this Court for review under the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq. The CFC

denied the transfer request, finding that it could have offered a full and adequate remedy had the

case been timely filed. Fulbright I, 97 Fed. Cl. at 231.

       Fulbright proceeded to bring suit in this Court under the APA against John M. McHugh, the

Secretary of the Army, arguing that the ABCMR’s 2009 decisions contained manifest error because

its conclusions were contradicted by record evidence. Compl. ¶¶ 22–24. The Secretary moved to

dismiss, arguing that Fulbright’s claims under the APA are barred by the APA’s statute of

limitations and the prior decision of the CFC. Def.’s Mem. in Supp. of Mot. to Dismiss at 1–2. In

lieu of addressing the motion at that time, the Court previously handling the case ordered briefing

on the merits, and the parties then cross-moved for summary judgment. The case was transferred to

this Court during the course of summary judgment briefing.

       II.     Standard of Review

               A. Dismissal for Lack of Subject Matter Jurisdiction

       Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies

outside this limited jurisdiction[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994). It is the plaintiff’s burden to establish that the court has subject matter jurisdiction. Lujan

v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Because subject matter jurisdiction focuses on

the Court’s power to hear a claim, the Court must give the plaintiff’s factual allegations closer

scrutiny than would be required in deciding a Rule 12(b)(6) motion for failure to state a claim.

                                                   7
Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). Thus,

the Court is not limited to the allegations contained in the complaint. Wilderness Soc’y v. Griles,

824 F.2d 4, 16 n.10 (D.C. Cir. 1987). “The district court retains ‘considerable latitude in devising

the procedures it will follow to ferret out the facts pertinent to jurisdiction,’ but it must give the

plaintiff ‘ample opportunity to secure and present evidence relevant to the existence of

jurisdiction.’” Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)

(quoting Prakash v. Am. Univ., 727 F.2d 1174, 1179–80 (D.C. Cir. 1984)).

                B. Dismissal for Failure to State a Claim

        “To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff’s

factual allegations “must be enough to raise a right to relief above the speculative level[.]”

Twombly, 550 U.S. at 555–56 (citations omitted). “Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements,” are insufficient to withstand a motion to

dismiss. Iqbal, 556 U.S. at 678. In deciding a motion to dismiss under Rule 12(b)(6), the Court

may take judicial notice of facts litigated in a prior related case. See Oveissi v. Islamic Republic of

Iran, 879 F. Supp. 2d 44, 49–50 (D.D.C. 2012).

                C. Summary Judgment under the APA

        In a motion for summary judgment under the APA, “the standard set forth in Rule 56(a)

does not apply because of the court’s limited role in reviewing the administrative record.” Coe v.

McHugh, 968 F. Supp. 2d 237, 239 (D.D.C. 2013) (citations omitted). “‘Summary judgment is an

appropriate procedure for resolving a challenge to a federal agency’s administrative decision when

review is based upon the administrative record.’” Bloch v. Powell, 227 F. Supp. 2d 25, 30–31

(D.D.C. 2002) (quoting Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995)). Under

                                                     8
the APA, the Court must set aside agency action that is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706. “[T]he scope of review under

the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment for that

of the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983). “Arbitrary and capricious” review is “highly deferential” and “presumes the agency’s

action to be valid.” Envt’l. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981). “[T]he

court considers whether the agency acted within the scope of its legal authority, whether the agency

has explained its decision, whether the facts on which the agency purports to have relied have some

basis in the record, and whether the agency considered the relevant factors.” Fund for Animals, 903

F. Supp. at 105 (citing Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989)). Nothing

more than a “brief statement” is necessary, as long as the agency explains “why it chose to do what

it did.” Tourus Records, Inc. v. Drug, 259 F.3d 731, 737 (D.C. Cir. 2001). It is the plaintiff’s

burden to show by clearly convincing evidence that the decision was the result of a material legal

error or injustice. McDougall v. Widnall, 20 F. Supp. 2d 78, 82 (D.D.C. 1998).

         III.   Analysis

                A. The Secretary’s Motion to Dismiss

         The Secretary moves to dismiss on three grounds: (1) issue preclusion applies because the

CFC has already determined that Fulbright’s claims are barred by the statute of limitations under

the Tucker Act; (2) regardless of the CFC decision, Fulbright’s claims are barred by the APA’s

statute of limitations; and (3) Fulbright’s claims are alternatively barred because he could have

received a full and adequate remedy in his suit before the CFC. The Court discusses each ground

below.




                                                   9
                       i. Issue Preclusion

       “Issue preclusion . . . bars ‘successive litigation of an issue of fact or law actually litigated

and resolved in a valid court determination essential to the prior judgment,’ even if the issue recurs

in the context of a different claim.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (quoting New

Hampshire v. Maine, 532, U.S. 742, 748–49 (2001)). Issue preclusion requires that:

       “[1], the same issue now being raised must have been contested by the parties and
       submitted for judicial determination in the prior case[; 2], the issue must have been
       actually and necessarily determined by a court of competent jurisdiction in that prior case
       [; and] [3], preclusion in the second case must not work a basic unfairness to the party
       bound by the first determination.”

Martin v. DOJ, 488 F. 3d 446, 454 (D.C. Cir. 2007) (quoting Yamaha Corp. of Amer. v. United

States, 961 F.2d 245, 254 (D.C. Cir. 1992)).

       The Secretary argues that the CFC resolved the issues before this Court by construing

Fulbright’s 2008 ABCMR application for disability retirement benefits as a request for

reconsideration of the ABCMR’s 1993 decision, rather than a new action, and thus determining that

his claim was barred by the Tucker Act’s six-year statute of limitations. Def.’s Mem. in Supp. of

Mot. to Dismiss at 7. The CFC’s determinations, however, do not have preclusive effect in this

proceeding because whether the Tucker Act’s statute of limitations has expired is a different

question of law than whether the APA’s statute of limitations has expired.

       The Tucker Act does not itself create substantive rights but instead provides a cause of

action for suits for money damages against the United States based upon, among other things, an act

of Congress. 28 U.S.C. § 1491(a)(1). The CFC reviewed two statutes that might have entitled

Fulbright to relief under the Tucker Act if suit was brought within its six-year statute of limitations.

First, the Military Pay Act (“MPA”), 37 U.S.C. § 204 (2006), entitles active-duty members of the

military to challenge a wrongful termination. Claims under the MPA “accrue immediately upon

discharge, because appealing to a correction board is not required for judicial review.” Fulbright I,


                                                   10
97 Fed. Cl. at 228 (citing Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en

banc)). Thus, any claim Fulbright might have had under the MPA would have accrued six years

after he lost active-duty status in 1989. But, because Fulbright challenged the ABCMR’s review of

the decision to deny him medical retirement, the CFC determined that his claim was properly

brought under another statute, 10 U.S.C. § 1201, which entitles a servicemember who is unfit for

service to disability pay. Id. (citing Chambers v. United States, 417 F.3d 1218, 1223 (Fed. Cir.

2005)). Under this statute, a decision by “‘[t]he first statutorily authorized board that hears or

refuses to hear the claim invokes the statute of limitations[.]’” Id. (quoting Chambers, 417 F.3d at

1224). Applying this statute, the CFC determined that the Tucker Act statute of limitations began

to run from the 1993 ABCMR denial of a record correction and that the 2009 ABCMR decision did

not re-start the clock. Id.

        The APA’s statute of limitations operates differently than the Tucker Act’s. As discussed

more fully below, the APA permits an individual to challenge final agency action, and its statute of

limitations begins to run from the date of that final action. Impro Prods., Inc. v. Block, 722 F.2d

845, 850–51 (D.C. Cir. 1983). In Havens v. Mabus, __ F.3d __, 2014 WL 3674599 (D.C. Cir. July

25, 2014), the D.C. Circuit recently held that an APA suit challenging a military corrections board

decision was not precluded by a prior CFC determination that the Tucker Act statute of limitations

barred adjudication. Id. at *4–6. Although Havens involved claim preclusion rather than issue

preclusion, its reasoning applies equally to the Secretary’s issue preclusion argument here. See,

e.g., Taylor, 553 U.S. at 892. The CFC, moreover, did not analyze when the APA statute of

limitations began to run in Fulbright’s case. Fulbright I, 97 Fed. Cl. at 231. Indeed, it could not

have done so because it lacks jurisdiction to review APA challenges. Id. Because the two statutes’

limitations provisions have different standards and the CFC did not address the APA’s limitations

provisions, that court’s ruling has no preclusive effect here.

                                                   11
       Nor does the CFC’s finding that the January 2009 ABCMR decision was a denial of

reconsideration rather than a new claim for a record correction have preclusive effect in this matter.

The application of the APA’s statute of limitations, unlike the Tucker Act’s, does not turn on this

distinction. As discussed below, an agency decision on a request for reconsideration may be a new

final agency action under the APA and therefore trigger its statute of limitations.

                       ii. APA Statute of Limitations

       Section 704 of the APA provides for judicial review of “final agency action for which there

is no other adequate remedy in a court[.]” 5 U.S.C. § 704. Unless another statute prescribes

otherwise, a party must bring an APA claim within six years after the right of action first accrues.

28 U.S.C. § 2401(a); Sendra Corp. v. Magaw, 111 F.3d 162, 165 (D.C. Cir. 1997). The right of

action first accrues on the date of the final agency action. See Impro Prods., 722 F.2d at 850–51.

       [T]wo conditions must be satisfied for agency action to be final: First, the action
       must mark the consummation of the agency’s decisionmaking process, . . . it must
       not be of a merely tentative or interlocutory nature. And second, the action must be
       one by which rights or obligations have been determined, or from which legal
       consequences will flow[.]

Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citations omitted).

       Because the CFC’s Tucker Act analysis has no preclusive effect on Fulbright’s APA claims,

the Court must determine whether the 2009 ABCMR decision was a final agency action that

triggered the APA’s statute of limitations. The Court does not analyze this issue on a blank slate, as

the D.C. Circuit considered a similar issue in Havens. The petitioner in Havens was a retired navy

reserve officer who challenged his 1996 discharge in six record correction requests to the Navy’s

corrections board and subsequent suits to the CFC and this Court. 2014 WL 3674599, at *1. The

corrections board’s first four decisions were held to be outside the APA’s statute of limitations by

the time Havens filed his suit. The Circuit determined, however, that the District Court should have

reviewed the board’s last two determinations, which were filed within the six-year period, because

                                                  12
the board chose to reach the merits of the petitioner’s application. See id. n.11. The Circuit

similarly has explained that “[i]f for any reason the agency reopens a matter and, after

reconsideration, issues a new and final order, that order is reviewable on its merits, even though the

agency merely reaffirms its original decision.” Sendra Corp. v. Magaw, 111 F.3d 162, 167 (D.C.

Cir. 1997) (citing among others Interstate Commerce Comm’n v. Brotherhood of Locomotive

Engineers, 482 U.S. 270, 278 (1993)); see also, Houseal v. McHugh, 962 F. Supp. 2d 286, 294–95

(D.D.C. 2013) (ABCMR decision to deny request for reconsideration creates an independent claim

under the APA where that decision is on the merits).

       Demonstrating that no good deed goes unpunished, the ABCMR here decided to waive its

three-year statute of limitations in the interest of justice and issue a new final decision on

Fulbright’s request for a record correction in January 2009 because it determined that he should

have been promoted to major from the reserve group in 1990. AR 74–77. Based on the reasoning

of both Havens and Sendra, then, this was a new final agency action that can be challenged under

the APA, regardless of whether Fulbright’s 2008 petition is considered a request for reconsideration

of the 1993 denial or a new request for a record correction. Moreover, the ABCMR’s 2009 decision

passes both elements of the final agency action test: it was the Army’s final decision on Fulbright’s

2008 request, and it produced a change in legal rights as it required that the Army promote

Fulbright to major. 4 Thus, Fulbright’s claims here are not barred by the APA’s statute of

limitations.



4
  In Fulbright’s complaint, he asserts jurisdiction both under the APA and the “Little” Tucker Act,
which permits this Court to hear Tucker Act claims involving less than $10,000. The Court finds
that, for the same reasons as stated the CFC, the Court lacks jurisdiction to hear Fulbright’s Little
Tucker Act claim because he filed this suit outside its statute of limitations. See Fulbright I, 97 Fed.
Cl. at 228; see also Carter v. Dep’t of the Navy, 5-775, 2006 WL 2471520, at *2 n.5 (D.D.C. Aug.
24, 2006), aff’d sub nom., 258 F. App’x 342 (D.C. Cir. 2007) (A dismissal based on the Tucker
Act’s statute of limitations has res judicata effect on future suits alleging the same claims under the
Tucker Act).
                                                   13
                       iii. Full and Adequate Remedy

       A plaintiff may not bring suit under the APA if he can achieve identical relief under a

different statute because only “final agency action for which there is no other adequate remedy in a

court [is] subject to judicial review” under the APA. 5 U.S.C. § 704; Bennett, 520 U.S. at 162.

Similarly, this Court lacks jurisdiction to hear claims that are in actuality Tucker Act claims in

excess of $10,000 because Congress has vested exclusive jurisdiction for those claims in the CFC.

E.g., Smalls, 471 F.3d at 189.

       Fulbright’s complaint requests injunctive and declaratory relief that he is entitled to a MEB

and retroactive disability retirement from the Army; he does not seek monetary damages. Compl.

¶¶ 25–30. The Secretary contends that because Fulbright could have received the relief he seeks

through a Tucker Act suit in the CFC, he cannot bring an APA claim here. Def.’s Mem. in Supp. of

Mot. to Dismiss at 11–13. The Secretary advances two supporting arguments: that the actual relief

Fulbright seeks is monetary—the record correction, it argues, is simply a means to an end—and that

the CFC was capable of providing the injunctive relief Fulbright seeks. Id.

       As to the first argument, “‘as long as [a] complaint only requests non-monetary relief that

has considerable value independent of any future potential for monetary relief [,]’” a plaintiff need

not pursue a Tucker Act claim and may bring suit in this Court under the APA. Tootle v. Secretary

of the Navy, 446 F.3d 167, 176 (D.C. Cir. 2006) (quoting Kidwell v. Dep’t of the Army, Bd. for

Correction of Military Records, 56 F.3d 279, 284 (D.C. Cir. 1995)). As the D.C. Circuit explained

in Havens, a request for a record correction has independent value other than the monetary benefits

a disability designation provides. See Havens, 2014 WL 3674599, at n.11; Smalls, 471 F.3d at 190

(outlining benefits apart from disability pay that flow from an Army medical retirement). Fulbright

therefore may bring suit under the APA.




                                                  14
       As to the Secretary’s second argument, the CFC could not provide Fulbright’s requested

relief here because it cannot entertain suits for declaratory or injunctive relief, except to the extent

such relief is necessary “[t]o provide an entire remedy and to complete the relief afforded by the

judgment [for money damages].” 28 U.S.C. § 1491(a)(2). Because Fulbright does not seek

monetary relief in this suit, the CFC could not award him the injunctive relief he requests. See

Kidwell, 56 F.3d at 284; Carter v. Dep’t of the Navy, No. 5-775, 2006 WL 2471520, at *2 n.5

(D.D.C. Aug. 24, 2006), aff’d sub nom., 258 F. App’x 342 (D.C. Cir. 2007) (CFC could not afford

plaintiff adequate relief “[b]ecause the plaintiff appears to seek exclusively declaratory relief” for a

military record correction). Many courts in this district have reviewed decisions of the ABCMR

under the APA where plaintiffs have requested injunctive or declaratory relief only. See, e.g.,

Coburn v. McHugh, 679 F.3d 924 (D.C. Cir. 2012); Coe v. McHugh, 968 F. Supp. 2d 237 (D.D.C.

2013); Houseal, 962 F. Supp. 2d at 294–95.

       Similarly, the CFC’s decision not to transfer Fulbright’s APA claims to this Court because

the CFC could have afforded him full relief, see Fulbright I, 97 Fed. Cl. at 231, does not have

preclusive effect on this Court. Unlike here, Fulbright sought monetary relief in his prior suit,

which the CFC could have provided under the Tucker Act. Moreover, the CFC was analyzing

whether it could transfer the case under its circuit’s caselaw on transferring cases, not the “other

adequate remedy” limitation on APA claims. Id. Because the CFC was addressing a different legal

standard, its decision does not have preclusive effect. See Taylor, 553 U.S. at 892.

               B. Summary Judgment under the APA

       Having found that the Secretary is not entitled to dismissal of Fulbright’s complaint, the

Court moves to the Secretary’s motion for summary judgment on Fulbright’s APA challenge.

        “[W]hile judicial review of an agency’s actions is generally narrow and subject to a

presumption of validity, review of the Board’s decisions in particular under the APA is ‘unusually

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deferential.’” Coe, 968 F. Supp. 2d at 240 (quoting Piersall v. Winter, 435 F.3d 319, 324 (D.C. Cir.

2006)). As a military review board, the ABCMR is entitled to greater deference than civilian

administrative agencies. Id. (citing Calloway v. Brownlee, 366 F. Supp. 2d 43, 53 (D.D.C. 2005)).

The Court determines whether the ABCMR “‘permissibly exercised [its] discretion and made a

choice that is supported by at least substantial evidence.’” Hill v. Geren, 597 F. Supp. 2d 23, 29

(D.D.C. 2009) (quoting Homer v. Roche, 226 F. Supp. 2d 222, 226 (D.D.C. 2002)). The board’s

decision must “minimally contain[] a rational connection between the facts found and the choice

made.” Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir. 1997) (internal quotation marks and

citations omitted). “[A] party seeking review of a board decision bears the burden of overcoming

the ‘strong, but rebuttable, presumption that administrators of the military, like other public officers,

discharge their duties correctly, lawfully and in good faith.’” Roberts v. Geren, 530 F. Supp. 2d 24,

33 (D.D.C. 2007) (quoting Frizelle, 111 F.3d at 177).

       At the outset, the Court must clarify the relief Fulbright requests. The Secretary argues, and

Fulbright does not dispute, that Fulbright could not have been placed on the disability retirement list

from the reserve group because reserve soldiers not on active duty cannot receive a MEB under

Army Regulation 40-501. Def.’s Mem. in Supp. of Mot. for Sum. J. at 10; see also Army Reg. 40-

501 ¶ 9–15a (1989) (“Reservists who do not meet the fitness standards set by chapter 3” are

“transferred to the Retired Reserve . . . or discharged[.]”). Thus, Fulbright only challenges the

ABCMR’s review of the 1989 decision not to place him on the disability retirement list when he

was removed from active duty. Pl.’s Opp. & Mem. in Supp. of Cross-Mot. for Summ. J. at 12.

       While terse, the ABCMR’s determination provided adequate reasoning to uphold the

board’s decision under the extremely deferential standard the Court must apply. The ABCMR

examined Fulbright’s Army and VA medical records and found that he was not entitled to a record

correction for a medical disability retirement in 1989 because he had proffered no evidence

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showing that he was unfit for service at that time. AR 8–10. It concluded that his separation

medical examination, where he “was determined not to have any medical limitations[,]” refuted his

claims that he was, in fact, unfit for duty. Id. at 8. The board further explained that the Army’s

determination was not inconsistent with Fulbright’s 50 percent VA disability rating because the VA

does not determine medical unfitness for service, which is a necessary requirement for Army

disability retirement. Id. at 9. Because the separation medical examination records and the VA

disability rating were the only two pieces of evidence put forward by Fulbright, the board’s decision

is fully supported by the evidence before it. The board also adequately explained its reasoning in

considering this evidence.

       Fulbright further argues that his separation medical examination diagnosed conditions that

required mandatory referral to a MEB under Army regulations. Pl.’s Opp. & Mem. in Supp. of

Cross-Mot. for Summ. J. at 14–15. Fulbright was diagnosed with chondromamalacia patella, which

is inflammation of the knee. AR 140–41. A soldier suffering from this condition must be referred

to a MEB if it causes “more than moderate interference with function.” Army Reg. 40-501 ¶ 3-

14(b), Reoccurring shoulder dislocations, from which Fulbright also suffered, require a MEB

“when not repairable or surgery is contraindicated.” Id. ¶ 3-12(c). For both conditions, then, a

MEB is mandatory only when there has been a finding of sufficient severity. Fulbright, however,

did not advance evidence before the board that would require it to find that his chondromalacia

caused more than moderate interference with relevant functions or that his shoulder separation

history was not repairable with surgery. In fact, the only evidence he presented showing that he had

those conditions in 1989 was his separation exam, which found that none of his conditions, either in

isolation or in tandem, were severe enough to warrant a finding that he was unfit for service. AR

140–41. Thus, Fulbright has not demonstrated that either the 1989 discharge or the ABCMR’s

decision violated Army regulations.

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        Fulbright also argues that the ABCMR “failed to explain why a 50% disability rating by the

VA effective in 1989 or a 70% disability rating effective in 1992 is not probative of error by the

Army.” Def.’s Mem. in Supp. of Mot. for Sum. J. at 16. But, as noted above, the ABCMR

explained that the VA does not determine whether an individual is fit for continued service in the

military before determining whether they are partially or totally disabled. AR 7–9. Army

regulations, on the other hand, first require the Army to determine whether the servicemember is

unfit for duty. 10 U.S.C. § 1201(a). It is only after this threshold determination that the VA and

Army apply the same disability rating schedule to determine a servicemember’s level of disability.

Army Reg. 635-40. The board laid out these distinctions in explaining why the VA’s determination

of disability is not determinative of Fulbright’s fitness for service. AR 7–9.

       Lastly, Fulbright asserts that “preponderant evidence shows that Mr. Fulbright was not fit

for duty at the time of his separation from active duty in 1989.” Def.’s Mem. in Supp. of Mot. for

Sum. J. at 19 (emphasis in original). But preponderance of the evidence is not the standard this

Court applies in reviewing decisions of the ABCMR under the APA. As long as the board’s

determination adequately states the reasons for its decision and was in the realm of reason, this

Court must defer to it. E.g., Frizelle, 111 F.3d at 176. Here, the board determined that Fulbright

had presented no evidence showing that he was unfit for service at the time of his separation

because Army medical examiners had found him fit and the VA’s disability rating was not to the

contrary. This determination was reasonable in light of the evidence before the board, and the

Court therefore will defer to the board’s findings.




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        IV.    Conclusion

        For the reasons above, the Court will deny Defendant’s motion to dismiss, deny Plaintiff’s

cross-motion for summary judgment, and grant Defendant’s motion for summary judgment. The

Court will issue an order consistent with this opinion.




                                                            CHRISTOPHER R. COOPER
                                                            United States District Judge

Date:    September 9, 2014




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