Asbury v. United States

30 Fed. Cl. 417, 1994 U.S. Claims LEXIS 30, 1994 WL 48463
CourtUnited States Court of Federal Claims
DecidedFebruary 10, 1994
DocketNo. 93-239C
StatusPublished
Cited by5 cases

This text of 30 Fed. Cl. 417 (Asbury v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Asbury v. United States, 30 Fed. Cl. 417, 1994 U.S. Claims LEXIS 30, 1994 WL 48463 (uscfc 1994).

Opinion

ORDER

NETTESHEIM, Judge.

This case is before the court on defendant’s motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. RCFC 12(b)(1), (4). Plaintiff has opposed, and argument is deemed unnecessary. The issue to be decided is whether plaintiff exhausted his administrative remedies before filing a complaint in the Court of Federal Claims.

[418]*418FACTS

The following facts derive from plaintiffs complaint, both parties’ briefs, and the administrative record. Master Sergeant Mark Alan Asbury (“plaintiff’) is a member of the United States Air Force Reserves. He seeks disability retirement status and pay and reimbursement for medical care received at a civilian hospital for an injury allegedly incurred during a tour of active duty. Plaintiff entered active duty in the United States Air Force in May 1973 and has continued in his enlisted status to the present, except for the period February 1983 to January 1984 when he separated from the Air Force.

Plaintiff was called to active duty service from August 7-18, 1989, at Sheppard Air Force Base, Texas. On August 14, 1989, while on active duty, plaintiff injured his knee when he descended a staircase. Plaintiff told the Safety NCO of his twisted knee. On August 16, 1989, plaintiff returned to his home in Lawton, Oklahoma, while still on active duty. As he entered his house, plaintiff lost his balance and fell, injuring his back. After this incident plaintiff returned to Sheppard Air Force Base to complete his active duty term. On August 17 plaintiff reported his fall to the Safety NCO. Plaintiff completed his active duty tour on August 18.

Plaintiff’s back pain worsened over the next few days, and on August 22 he visited his personal physician, Dr. Robert Hay, in Lawton, Oklahoma. Dr. Hay considered that plaintiff might have pulled a muscle. When plaintiff’s back pain did not improve, Dr. Hay referred plaintiff to Dr. Cecil J. Hash, a neurosurgeon, on October 10, 1989. Dr. Hash determined that plaintiff had herniated a disc and on October 24, 1989, plaintiff was operated on to remove the disc. Plaintiff’s condition improved after the surgery but, on January 10, 1990, plaintiff was readmitted to Southwestern Medical Center suffering from severe leg pains. He was operated on to remove a second herniated disc on January 11, 1990.

Plaintiff, realizing the severity of his injury when Dr. Hay referred him to a neurosurgeon on October 10, 1989, notified his commander, Lt. Daniel J. Hetchler, of his injury. Plaintiff wrote and signed two memoranda for the record recounting the events of his knee injury, the later fall, and the medical care he had sought. Though neither of the memoranda is dated, one stated that plaintiff was scheduled for surgery on October 23, 1989, suggesting that plaintiff wrote that memorandum some time between October 10-23, 1989.

After his first disc operation, plaintiff on December 30, 1989, extended his enlistment for six months. After both disc surgeries, on June 5, 1990, plaintiff passed a reenlistment physical and was certified for worldwide duty. He extended his enlistment for nine months on June 30,1991. Plaintiff reenlisted for an additional six years effective on March 3, 1991.

A “Line of Duty” (“LOD”) investigation into plaintiff’s August 16, 1989 back injury was ordered on December 18, 1991. The investigating officer, Captain Roy F. Jordan, determined in a report dated March 12,1992, that the injury was incurred in the “Line of Duty”, but this finding was disapproved by the appointing, reviewing, and approving authorities. Plaintiff requested that the Air Force reconsider its LOD determination, but his request was denied on September 3,1992.

No indication appears that plaintiff ever requested a disability board or requested relief before the Air Force Board for the Correction of Military Records (“AFBCMR”). Plaintiff filed suit in the Court of Federal Claims on April 22, 1993.

DISCUSSION

Defendant contends that this court lacks jurisdiction because plaintiff has failed to exhaust his administrative remedies under the two statutory provisions upon which plaintiff seeks relief.

When evaluating a motion to dismiss for subject matter jurisdiction and for failure to state a cause of action upon which relief can be granted, the allegations of the complaint should be construed favorably to the pleader, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974), to the end that the court must accept as true the facts alleged in the complaint. Reynolds v. Army & Air Force Exch. Serv., [419]*419846 F.2d 746, 747 (Fed.Cir.1988). In W.R. Cooper General Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed.Cir.1988), the court stated: “In cases such as this in which a party has moved to dismiss for lack of jurisdiction, we must consider the facts alleged in the complaint to be correct. If these facts reveal any possible basis on which the non-movant might prevail, the motion must be denied.” (Citing Scheuer v. Rhodes, 416 U.S. at 236, 94 S.Ct. at 1686; additional citations omitted.) However, the burden is on the plaintiff to establish jurisdiction. Reynolds, 846 F.2d at 748 (citing cases). In ruling on a motion to dismiss pursuant to RCFC 12(b)(1), the court is not limited to the face of the pleadings, but may consider extrinsic evidence. Cedars-Sinai Medical Center v. Watkins, 11 F.3d 1573, 1583-84 (Fed.Cir.1993); Indium Corp. of America v. Semi-Alloys, Inc., 781 F.2d 879, 884 (Fed.Cir.1985). Thus, in deciding on defendant’s motion to dismiss, the court may look to the complaint, subsequent motions, and the administrative record.

Defendant argues that plaintiffs failure to request a disability board or to request relief from the Air Force Board for the Correction of Military Records precludes plaintiff from bringing a claim for disability retirement pay or separation under 10 U.S.C. §§ 1201-1221 (1988 & Supp. IV 1992). Defendant also argues that plaintiff cannot establish (1) that adequate medical care was unavailable from government sources and that he received authorization to obtain medical care from a non-government source prior to obtaining treatment, or (2) that the situation was a medical emergency; thus, he is precluded from bringing a claim for reimbursement for medical expenses incurred for treatment at a civilian hospital under Air Force Regulation (“AFR”) 168-10 (Nov. 1988). Plaintiffs failure to exhaust the remedies provided by the Air Force regulations, defendant argues, negates the accrual of any cognizable claim and deprives the court of jurisdiction to hear his case.

1. Members of the Air Force Reserves are entitled to be retired for disability and to receive disability retirement pay after they retire under 10 U.S.C. § 1204

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Cite This Page — Counsel Stack

Bluebook (online)
30 Fed. Cl. 417, 1994 U.S. Claims LEXIS 30, 1994 WL 48463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/asbury-v-united-states-uscfc-1994.