In the United States Court of Federal Claims
No. 16-1250€ F""ED
(Filed: September 6, 2018] SEP 06 2018
UB.COURTOF
FEDERALCLNMS
***aaaaasaaa****$**$a$a**#$*******
) Claim for disability retirement from the
LOUISE N. PEARSON, ) military; 10 U.S.C. §§ 1201, 1202;
) administrative grant of full relief on the
Plaintiff, ) permanent disability retired list; mootness;
) disability rating during period on the
v. ) temporary disability retired list
)
UNITED STATES, )
)
Defendant. )
)
=|<=i<=i<=l=*$=k=!=*=k=!=$=!=*$*>!==i¢***=i=*>k****=I=*>l¢=i¢=|¢*
Louise Pearson, pro se, Aoton, CA.
Lauren S. Moore, Trial Attorney, Commereial Litigation Branch, Civil Division, United
States Department of .Tustice, Washington, D.C., for defendant With her on the briefs Were
Chad A. Readler, Aeting Deputy Assistant Attorney General, Civil Division, Robert E.
Kirschman, Jr., Director, and Deborah A. Bynurn, Assistant Director, Commeroial litigation
Braneh, Civil Division, United States Department of Justice, Washington, D.C.
OPINION AND ORI)ER
LETTOW, Senior Judge.
Plaintiff Louise Pearson, CAPT (ret.), United States Navy, brought suit seeking
additional military retirement pay she contends she is owed due to an improper disability rating
given to her by the Navy. Cornpl. 11 l. CAPT Pearson Was temporarily retired from the Navy for
medical reasons (1`. e., placed on the Temporary Disability Retired List, or “TDRL”) on May 15,
2008 at a 60% disability rating. Compl. 1[ 9. She Was permanently retired for medical reasons
(i. e., placed on the Permanent Disability Retired List, or “PDRL”) on October l, 2010 at the
same 60% disability rating and for the same conditions Cornpl. 1[ 9. CAPT Pearson filed her
complaint With this court on September 30, 2016, at a time When a petition by her for relief Was
still pending before the Navy’s Board for Correction of Naval Records (the “Board” or “Navy
Board”). At the request of the parties, the case Was stayed by the court to allow the Navy Board
to complete its Worlc. In due course, the Board acted to amend her disability rating to reflect
100% disability as of her permanent retirement date. CAPT Pearson contends she should have
also received an 80%-to-100% disability rating during her temporary retirementl Compl. 1[ 17.
The United States has moved to dismiss the complaint pursuant to Rule lZ(b)(l) of the
Rules of the Court of Federal Claims (“RCFC”). Def.’s Mot. to Dismiss (“Def.’s l\/lot.”), ECF
No. 23. The government asserts that CAPT Pearson’s claim became moot upon the award of
relief by the Navy Board because she had requested from the Board a higher disability rating
starting with either her temporary retirement or permanent retirement Def.’s Mot. at 1.
CAPT Pearson contends that she received only partial relief from the Board, as the Board
granted relief relating only to her permanent retirement Pl.’s Resp. to Def.’s Mot. to Dismiss
(“Pl.’s Resp.”) at 3, ECF No. 24; Hr’g Tr. at 16:6 to 18:7 (Aug. 9, 2018).l Simultaneously with
her response to the government’s motion, CAPT Pearson filed a motion to amend her complaint
to request relief specifically for both her temporary and permanent retirements as opposed to
relief in the alternative Pl.’s Mot. to Amend Compl. (“Pl.’s l\/lot. to Amend”), ECF No. 25.
Each party has filed briefs addressing the motion to dismiss and the motion to amend, and a
hearing was held on August 9, 2018. At the hearing, the court requested supplemental briefs
regarding whether the Board had considered CAPT Pearson’s request to review her disability
rating during her temporary retirement Both parties filed supplemental briefs on August 21,
2018, and the motions consequently are ready for decision.
The issues before the court are: (l) whether CAPT Pearson’s claim is mooted by the
relief afforded by the Navy Board in May 2017 and (2) whether the court should allow CAPT
Pearson to amend her complaint to reflect an independent request for relief during the period of
her temporary retirement
The court concludes that CAPT Pearson’s claim has been rendered moot by the
administrative proceeding before the Navy Board, which granted the relief sought by CAPT
Pearson. Therefore, this court now lacks jurisdiction Accordingly, the government’s motion to
dismiss the complaint is GRANTED. CAPT Pearson’s motion to amend the complaint is
DENIED because this court would lack jurisdiction to hear the temporary retirement claim due to
a time-bar by the statute of limitations
FACTS
CAPT Pearson sustained injuries in 2004 while serving on active duty in the United
States Navy. Def.’s Reply to Pl.’s Resp. to Def.’s Mot. to Dismiss (“Def.’s Reply”) Suppl. App.
at 2, ECF No. 26 (containing CAPT Pearson’s Board application). The Navy convened an
informal Physical Evaluation Board (“PEB”) on October 17, 2007 to evaluate her conditions
Def.’s Resp. to Ct.’s Inquiries App. at 30, ECF No. 33. The informal PEB recommended
temporary retirement at a 60% disability rating. Ia’. CAPT Pearson rejected the findings on
November 9, 2007, but then, on February 22, 2008, decided to accept the findings, foregoing a
proceeding before a formal PEB. Id. App. at 36 (initial rejection), 32 (acceptance). She was
temporarily retired due to disability on May 15, 2008 at a 60% disability rating. Compl. ll 9.
CAPT Pearson subsequently was evaluated by the Social Security Administration and the
Department of Veterans Affairs. Compl. 1[ 10-12. The Social Security Administration found
CAPT Pearson to be totally disabled on October 19, 2008, with an effective disability date of
EFurther citations to the transcript of the hearing held on August 9, 2018 will omit
reference to the date.
June l, 2006. Compl. ll ll. The Department of Veterans Affairs found CAPT Pearson to be
totally disabled on July 7, 2010, with an effective disability date of July l7, 2008. Compl. ‘ll 12.
Following a second PEB, CAPT Pearson was permanently retired on October l, 2010 at a 60%
disability rating and for the same conditions Compl. il 9. This case arose because CAPT
Pearson disputed the assigned disability rating, arguing it should be “at least 80% and as much as
100%,” Compl. il l7', Pl.’s Resp. at 3, which would generate an increase in her retirement benefit,
Compl. il 18; Pl.’s Resp. at 3~4.
CAPT Pearson sought review of her disability rating before the Navy Board on August
23, 2013. Def.’s l\/lot. at 2~3; Def.’s Reply Suppl. App. at 1. She claimed that the Navy
evaluated her medical condition erroneously when retiring her and failed to consider the entirety
of her medical records, resulting in a lower disability rating than warranted, See generally Def.’s
Reply Suppl. App., and consequently, less retirement pay than should have been allowed
CAPT Pearson filed suit in this court on September 30, 20l6 while ber Navy Board
application was still pending Def.’s Mot. at 2-3. ln December 20l 6, this court granted an
unopposed motion to stay proceedings to allow additional time for the Board to issue a decision.
ln May 2017, the Navy Board corrected CAPT Pearson’s military record to reflect a 100%
disability rating effective October l, 2010. Def.’s Mot. at 3 & App. at 3-4 (Board decision). As
a result, she began receiving retired pay at a 100% disability rating and also received back pay
though October l, 2010 for the monetary difference attributable to the increased disability rating.
Def.’s Mot. at 3. The Board did not change her disability rating during the period she was on the
TDRL, Def.’s l\/lot. App. at 2-3, and CAPT Pearson seeks additional back pay covering that
period. She argues that she should have received retired pay during temporary retirement at an
80% or 100% disability rating, not at a 60% rating. Pl.’s Resp. at l, 3.
In briefs to this court submitted subsequent to the Navy Board’s decision, CAPT Pearson
contends that the Navy’s denial of certain treatment was retaliatory and that she consented to the
temporary retirement disability rating only under duress. Pl.’s Reply to Def.’s Opp’n to Pl.’s
Mot. to Amend the Compl. (“Pl.’s Reply”) at 2-6, ECF No. 28; see also Hr’ g Tr. at 28:15 to
31 :18.2 The Command lnspector General (“lnspector General”) of l\/larine Corps Base Camp
Lejeune initiated a “command climate” investigation into CAPT Pearson’s unit in January 2008.
2In an advisory opinion by the Navy’S Council of Review Boards (“Council of Review”),
which was considered by the Navy Board, the Council of Review makes a brief reference that
CAPT Pearson may have accepted the disability rating for her temporary retirement with
“reported significant reservations.” Def.’s Resp. to Ct.’s lnquiries App. at 39 (Council of
Review Advisory Opinion to Board (May 22, 2017)). lt is not apparent whether these
“reservations” refer to the alleged duress or merely to disagreement with the assigned rating.
The first reference in the record before the court to duress or involuntary acceptance of the
informal PEB occurs in Plaintiff’s Reply at 2-6.
The Council of Review Boards hears direct appeals from the Navy Physical Evaluation
Board. See SECNAVINST 1850.4E, ll 4. This entity was previously known as the Naval
Council of Personnel Boards. Id.; see also Pl.’s Reply App. at 1-2.
See Pl.’s Reply at 3 & App. (lnspector General’s Report of lnquiry).3 The Inspector General’s
report substantiated CAPT Pearson’s claims about being denied proper medical care, although
there is no discussion of retaliation regarding her PEB or signing under duress to accept the
informal PEB’s findings and to waive a formal PEB, Pl.’s Reply App. at 99-100.
The lnspector General’s investigation began after the informal PEB recommended
temporary retirement at 60% disability on October 17, 2007. See Def.’s Resp. to Ct.’s lnquiries
App. at 30 (Findings of the Physical Evaluation Board Proceedings (Oct. 17, 2007)). Prior to the
start of the lnspector General’s investigation, CAPT Pearson had rejected the PEB’s findings on
November 9, 2007 and requested a formal PEB. Def.’s Resp. to Ct.’s Inquiries App. at 36
(rej ection). While the investigation was still underway, CAPT Pearson decided on February 22,
2008 to accept the informal PEB’s findings and withdraw her request for a formal PEB. fnl App.
at 32 (acoeptance). The lnspector General’s investigation concluded two months before CAPT
Pearson was placed on the TDRL. Pl.’s Reply App. at 1,
STANDARDS FOR DECISION
A. Rule 12(1))(]) 4~ Lack of Subject-Matrer Jurfsdiclion
The Tucl