United States Court of Appeals for the Federal Circuit
04-5133
CHARLES VAN CLEAVE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Charles Van Cleave, of Poulsbo, Washington, pro se.
Domenique Kirchner, Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for defendant-appellee. With
her on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, and Brian M. Simken, Assistant Director.
Appealed from: United States Court of Federal Claims
Judge Robert H. Hodges
United States Court of Appeals for the Federal Circuit
04-5133
CHARLES VAN CLEAVE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
__________________________
DECIDED: March 31, 2005
__________________________
Before MICHEL, Chief Judge, PLAGER, Senior Circuit Judge, and LINN, Circuit Judge.
PLAGER, Senior Circuit Judge.
This is a military disability retirement case. Charles Van Cleave was separated
from active duty in the United States Navy with a disability rating that entitled him to
severance pay. In a complaint filed in the United States Court of Federal Claims, Van
Cleave sought a higher disability rating, which would have placed him on the permanent
disability retirement list and entitled him to continuing disability retirement pay. The
Court of Federal Claims dismissed the complaint for failure to state a claim on the
ground that Van Cleave waived judicial review of his claim when he voluntarily accepted
the findings of a Physical Evaluation Board (“PEB”) during the Navy’s disability
evaluation process. Van Cleave v. United States, 60 Fed. Cl. 291 (2004). Because the
trial court focused on the voluntariness of Van Cleave’s actions rather than the scope of
the waiver at issue, we vacate the judgment of the trial court and remand for further
proceedings.
BACKGROUND
In July 1996, while on active duty in the United States Navy, Van Cleave began
to experience headaches. After a period of limited duty, a local medical board referred
him to a PEB. The PEB examined Van Cleave’s medical records and in April 1997
issued a preliminary finding that Van Cleave was unfit for duty.1 The PEB assigned him
a preliminary disability rating of 10% and recommended that he be separated from
active duty with severance pay.
In May 1997 the Navy notified Van Cleave of the PEB’s preliminary findings and
provided him a form entitled “ELECTION OF OPTIONS FOR PRELIMINARY FINDINGS
OF UNFIT FOR DUTY.” The form instructed him to select one of three options: (a)
accept the preliminary findings and waive his right to a formal hearing; (b) conditionally
accept the preliminary findings subject to conditions he could state; or (c) not accept the
preliminary findings and demand a formal hearing.2 Van Cleave selected option (a),
which reads as follows: “I ACCEPT the Preliminary Findings. I understand that it is
subject to a legal review before becoming final. I waive my right to a formal hearing.”
Appellee’s App. at 8. Van Cleave also initialed a statement on the form indicating that
he had been counseled by a Disability Evaluation System Counselor. A separate form
was signed by a disability counselor certifying that Van
1
The three-member PEB panel that makes preliminary findings is
sometimes referred to as an “informal” PEB.
2
When the PEB holds a formal hearing, the proceedings are sometimes
referred to as a “formal” PEB.
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Cleave had been counseled according to the requirements of SECNAVINST 1850.4C,
the Navy’s disability evaluation instruction in effect at the time. The PEB findings
became final, and in July 1997 Van Cleave was discharged from the Navy with a
medical disability.
In August 1999 Van Cleave applied to the Board for the Correction of Naval
Records (“BCNR”), requesting that his disability rating be increased to 30%, which
would entitle him to disability retirement pay. The BCNR considered his claim on the
merits but ultimately denied his application in March 2000.
Thereafter, in July 2003, Van Cleave filed a complaint in the Court of Federal
Claims challenging the BCNR’s denial of his application and the underlying disability
rating assigned by the PEB. The Government filed a motion to dismiss the complaint
for failure to state a claim. The trial court found that by signing the Election of Options
form voluntarily, Van Cleave “accepted the findings and waived all rights.” Van Cleave,
60 Fed. Cl. at 293. This finding led the trial court to conclude that Van Cleave had
“accepted a voluntary discharge,” and therefore the court could not “consider additional
issues.” Id. The trial court granted the Government’s motion and dismissed the
complaint.
Van Cleave timely filed this appeal. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).
DISCUSSION
Much of the argument in the trial court and in the briefs on appeal addresses the
question whether Van Cleave’s signing of the Election of Options form, which ultimately
led to his discharge with a medical disability, was voluntary. That is an issue usually
04-5133 3
heard in cases in which a serviceperson contends that his or her discharge from the
service was not “voluntary,” in which case the right to continued pay and benefits
accruing after the discharge would exist, and a claim for such would lie under the
Tucker Act. That is a matter of jurisdiction for the Court of Federal Claims. See e.g.,
Tippett v. United States, 185 F.3d 1250 (Fed. Cir. 1999); Sammt v. United States, 780
F.2d 31 (Fed. Cir. 1985).
In this case, the trial court concluded that Mr. Van Cleave’s signature on the form
is conclusive: “Once this court determines that a service member has accepted a
voluntary discharge, we may not consider additional issues.” Van Cleave, 60 Fed. Cl. at
293. The court cited Tippett and Sammt. But the issue in this case is not one of
jurisdiction; it is one of waiver. Both parties and the court agreed that the trial court had
jurisdiction. The Government’s motion, which the court granted, was to dismiss for
failure to state a claim.
Van Cleave, acting pro se, raised the voluntariness issue by arguing, as he did in
his brief on appeal, that “[t]he primary issue before the Court is whether Van Cleave’s
retirement from the Navy was voluntary or involuntary.”3 Appellant’s Br. at 6. The basis
for his argument was that at the time he signed the form he had been misled by a lack
of information about his case, and he notes that the two naval officers and one doctor
who conducted the medical review were equally ill-informed due to the state of the
record before them.
More to the point, Van Cleave argues on appeal that the only thing he waived by
signing the form was his right to a formal PEB. He notes that the form said nothing
3
In his pro se brief he also argued about the justiciability of his claim, an
issue not raised by the facts.
04-5133 4
about waiving his right to subsequent administrative review of his case to determine
whether the Navy had committed an error, or whether judicial review of the matter
necessarily was thereby precluded. The record indicates that Van Cleave received
counseling as to his alternatives before signing the form. Even assuming, however, that
the counseling thoroughly explained the Navy’s disability evaluation procedures as set
forth in SECNAVINST 1850.4C (a document of more than 100 pages), nothing in the
instruction addresses the legal consequences as such of “accepting” the preliminary
findings by choosing selection (a).
It is clear that by signing the form Van Cleave waived his right to have a formal
PEB undertake to review the findings of the informal PEB, making the informal PEB’s
preliminary findings final. And it appears clear from the record that his signing of the
waiver form was fully voluntary, in the sense that he was not under duress at the
signing, and that he knew what the document said and what its purpose was. There is
no evidence that the Navy misled him on that score; the trial court so found.
That does not answer the critical question: what is the scope of the waiver and
was it a knowing waiver on Van Cleave’s part? Did it include a waiver of any further
administrative review of the PEB’s now-final decision? Apparently the Navy did not so
read it, since it granted Van Cleave’s petition for a subsequent review of the case by the
BCNR. Did it include a binding waiver of any right to judicial review? That for us is the
$64 question.
The Government responds to the waiver issue by arguing that whatever lack of
information Van Cleave was suffering from, the time to correct that was when the
opportunity was given to him by the agency—i.e., he should have initialed (c), not (a),
04-5133 5
on the Election of Options form. Thereafter, in the Government’s view, he is precluded
from any further administrative review because later administrative review would unduly
burden and prejudice the Government. And the effect of the waiver is to preclude as
well judicial review of the board’s findings.
To Van Cleave’s argument that any waiver of further review, including judicial
review, was waived when the Navy undertook review by the BCNR, the Government
responds that the BCNR is an administrative board designed to correct errors and
remedy injustice, and not a court of law. According to the Government, when Van
Cleave accepted the findings of the informal board in 1997 instead of objecting at the
time and requesting a formal hearing, he could no longer complain about the terms
under which his discharge was structured.
We find the Government’s conclusory statements regarding the automatic bar to
judicial review unpersuasive. In a case decided after the trial court’s decision in this
case, we held that a voluntary discharge from the Navy does not preclude a former
service member from suing under the Tucker Act for benefits due regardless of the
discharge—in that case, as in this one, the benefits of a higher disability rating. See
McHenry v. United States, 367 F.3d 1370 (Fed. Cir. 2004). We noted in passing that
even if acceptance of a PEB decision may act as a bar to a later claim, citing the dictum
in Maier v. Orr, 754 F.2d 973, 984 (Fed. Cir. 1985), “the bar is not jurisdictional in
nature.” McHenry, 367 F.3d at 1377 n.6. So the issue remains: before dismissing the
case for failure to state a claim, it is necessary to know the scope of the waiver—did it
include a bar to further administrative review and a bar to any judicial review? If so, was
it a knowing waiver—did the service member understand what he was waiving?
04-5133 6
(Compare the waiver language in the form at issue here with the language in the waiver
McHenry signed following his formal hearing: “I agree with and accept the findings of
the Regional Hearing Panel. I am not going to appeal or rebut the final decision . . . .”
Id. at 1375.) On the basis of the record before us, we do not discern a clear answer to
this issue, or that there is any clear precedent to guide us.
Because of the way the case was presented and argued, the trial court did not
have the benefit of a full and thorough airing of the waiver issue and an exploration of
the relevant facts and law, including, as urged by the Government, how and why an
acceptance of the findings otherwise could be conclusive. Accordingly, we vacate the
judgment of the trial court and remand for further proceedings consistent with this
opinion.
VACATED and REMANDED
04-5133 7