Beasley v. Del Toro
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Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
LAKIA BEASLEY, et al.,
Plaintiffs,
v. Case No. 22-cv-667 (CRC)
CARLOS DEL TORO, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiffs LaKia Beasley and Richard Henderson were separated from the Navy without
the medical and retirement benefits they claim are owed to them because the Navy failed to
assess whether they incurred or aggravated their conditions in the line of duty—a prerequisite for
benefits under 10 U.S.C. § 1201. Because they were non-active Reservists at the time of their
separation and did not have a so-called Line of Duty Benefits (“LODB”) Letter, the Navy
referred them into a regulatory pathway within the Disability Evaluation System (“DES”)
reserved for non-duty related conditions. Once placed into that pathway, the Navy refused to
consider evidence that their injuries stemmed from their deployments to Afghanistan and cut
them loose empty handed. Plaintiffs responded by filing the current action under the
Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq., contending the Navy’s failure to
investigate their eligibility violated applicable regulations requiring it to determine whether a
Service member’s medical condition stems from the line of duty and then refer all eligible
members into the duty-related path of the DES for an allocation of benefits.
Beasley and Henderson maintain their stories, while tragic, are far from unique. In their
telling, the Navy has systematically violated its obligation to investigate whether a Reservist is
eligible for duty-related benefits by treating the lack of an LODB Letter as conclusive evidence that a Reservist was not injured in the line of duty, even though the Navy has no established
policy on how Reservists can obtain these letters prior to referral into the non-duty related path
of the DES. They accordingly move to certify a class of 319 Reservists who were separated or
are currently pending separation from the Navy through the non-duty related path without a
formal finding as to whether their condition arose from their time in active service. If the Court
grants the motion, the Class plans to pursue injunctive relief compelling the Navy to determine
each class member’s eligibility for benefits and to revamp its referral processes to ensure
Reservists are evaluated for eligibility for medical retirement or separation going forward.
The Navy, for its part, contends that class certification is inappropriate here because
Department of Defense and Navy regulations do not create any procedural right to a line-of-duty
determination and thus there is no legal injury common to all class members. Furthermore, even
if Plaintiffs could satisfy Federal Rule of Civil Procedure 23’s requirements, the Navy contends
class certification would still be unnecessary because the Navy has addressed Plaintiffs’ concerns
about its referral processes by creating an avenue for Reservists wrongly assigned to the non-
duty related path to cross over into the duty-related pipeline. But given that this revision will not
undo Plaintiffs’ allegedly erroneous denial of benefits because they are already separated, the
Navy has moved for voluntary remand to the Board for Correction of Naval Records (“BCNR”)
so it can reassess their eligibility in light of that new policy and, if determined eligible, award
benefits.
Having considered the briefing on these two motions and held a hearing on the matter,
the Court will (1) grant the Navy’s request for voluntary remand, (2) deny Plaintiffs’ motion for
class certification without prejudice to refiling following remand, and (3) stay this case during
the remand period. This resolution will provide Plaintiffs with a chance to receive the benefits
2 owed to them and offer the parties an opportunity to pursue a negotiated settlement over any
unresolved issues with the Navy’s DES referral processes.
I. Background
A. Legal Background
Congress has authorized the Secretaries of the military departments, including the Navy,
to provide certain retirement and medical benefits to eligible Service members who are unable to
continue their military service because of a disability that “is the proximate result of performing
active duty.” 10 U.S.C. §§ 1201, 1203. Service members with a so-called “disability rating” of
more than 30 percent are potentially eligible for medical retirement, while those with a rating of
less than 30 percent may be entitled to medical separation benefits. See id. § 1203(b). Outside
of medical ratings, the central determinant of whether a Service member is eligible for disability
benefits is whether his or her injury was “incurred in line of duty.” Id.
Pursuant to this congressional mandate, see id. § 1216, the Department of Defense has
created the DES to assess Service members’ fitness for duty and eligibility for medical
retirement and separation benefits. Department of Defense Instruction (“DoDI”) 1332.18 directs
secretaries of the various military departments to “refer Service members who meet the criteria
for disability evaluation” into the DES. DoDI 1332.18, App. 1 to Enclosure 3, § 1. This referral
is the only way to access the DES, as “Service members cannot self-refer.” Torres v. Del Toro,
No. 21-cv-306-RCL, 2021 WL 4989451, at *2 (D.D.C. Oct. 27, 2021). When referring Service
members, officials make a critical choice that stands at the center of this case: whether to send a
member to the duty-related pathway of the DES or the non-duty related pathway. Members sent
to the duty-related pathway first go before the Medical Evaluation Board (“MEB”) for medical
evaluation and, when appropriate, proceed to the Physical Evaluation Board (“PEB”) for a
3 determination of fitness and eligibility for benefits. See DoDI 1332.18, Enclosure 3, §§ 1(a),
2(a), 3(a). Those referred into the non-duty related path, by contrast, “will be referred solely for
a fitness for duty determination” and have no prospect of receiving retirement or separation
benefits. Id., App. 1 to Enclosure 3, § 3(b).
DoDI 1332.18 spells out the eligibility requirements for these two pathways for Service
members who have satisfied the medical criteria. See id. § 2 (describing the requisite medical
criteria for referral to the DES). Those presumptively eligible for the duty-related pathway
include “Service members on active duty or in the [Reserve Component (‘RC’)] who are on
orders to active duty specifying a period of more than 30 days” as well as “RC members who are
not on orders to active duty specifying a period of more than 30 days but who incurred or
aggravated a medical condition while the member was ordered to active duty for more than 30
days.” Id. § 3(a)(1), (2). The Instruction also details certain conditions that disqualify otherwise
eligible Service members from referral to the duty-related pathway, including if the “[d]isability
results from intentional misconduct or willful neglect.” Id. § 4. The residual group of Service
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
LAKIA BEASLEY, et al.,
Plaintiffs,
v. Case No. 22-cv-667 (CRC)
CARLOS DEL TORO, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiffs LaKia Beasley and Richard Henderson were separated from the Navy without
the medical and retirement benefits they claim are owed to them because the Navy failed to
assess whether they incurred or aggravated their conditions in the line of duty—a prerequisite for
benefits under 10 U.S.C. § 1201. Because they were non-active Reservists at the time of their
separation and did not have a so-called Line of Duty Benefits (“LODB”) Letter, the Navy
referred them into a regulatory pathway within the Disability Evaluation System (“DES”)
reserved for non-duty related conditions. Once placed into that pathway, the Navy refused to
consider evidence that their injuries stemmed from their deployments to Afghanistan and cut
them loose empty handed. Plaintiffs responded by filing the current action under the
Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq., contending the Navy’s failure to
investigate their eligibility violated applicable regulations requiring it to determine whether a
Service member’s medical condition stems from the line of duty and then refer all eligible
members into the duty-related path of the DES for an allocation of benefits.
Beasley and Henderson maintain their stories, while tragic, are far from unique. In their
telling, the Navy has systematically violated its obligation to investigate whether a Reservist is
eligible for duty-related benefits by treating the lack of an LODB Letter as conclusive evidence that a Reservist was not injured in the line of duty, even though the Navy has no established
policy on how Reservists can obtain these letters prior to referral into the non-duty related path
of the DES. They accordingly move to certify a class of 319 Reservists who were separated or
are currently pending separation from the Navy through the non-duty related path without a
formal finding as to whether their condition arose from their time in active service. If the Court
grants the motion, the Class plans to pursue injunctive relief compelling the Navy to determine
each class member’s eligibility for benefits and to revamp its referral processes to ensure
Reservists are evaluated for eligibility for medical retirement or separation going forward.
The Navy, for its part, contends that class certification is inappropriate here because
Department of Defense and Navy regulations do not create any procedural right to a line-of-duty
determination and thus there is no legal injury common to all class members. Furthermore, even
if Plaintiffs could satisfy Federal Rule of Civil Procedure 23’s requirements, the Navy contends
class certification would still be unnecessary because the Navy has addressed Plaintiffs’ concerns
about its referral processes by creating an avenue for Reservists wrongly assigned to the non-
duty related path to cross over into the duty-related pipeline. But given that this revision will not
undo Plaintiffs’ allegedly erroneous denial of benefits because they are already separated, the
Navy has moved for voluntary remand to the Board for Correction of Naval Records (“BCNR”)
so it can reassess their eligibility in light of that new policy and, if determined eligible, award
benefits.
Having considered the briefing on these two motions and held a hearing on the matter,
the Court will (1) grant the Navy’s request for voluntary remand, (2) deny Plaintiffs’ motion for
class certification without prejudice to refiling following remand, and (3) stay this case during
the remand period. This resolution will provide Plaintiffs with a chance to receive the benefits
2 owed to them and offer the parties an opportunity to pursue a negotiated settlement over any
unresolved issues with the Navy’s DES referral processes.
I. Background
A. Legal Background
Congress has authorized the Secretaries of the military departments, including the Navy,
to provide certain retirement and medical benefits to eligible Service members who are unable to
continue their military service because of a disability that “is the proximate result of performing
active duty.” 10 U.S.C. §§ 1201, 1203. Service members with a so-called “disability rating” of
more than 30 percent are potentially eligible for medical retirement, while those with a rating of
less than 30 percent may be entitled to medical separation benefits. See id. § 1203(b). Outside
of medical ratings, the central determinant of whether a Service member is eligible for disability
benefits is whether his or her injury was “incurred in line of duty.” Id.
Pursuant to this congressional mandate, see id. § 1216, the Department of Defense has
created the DES to assess Service members’ fitness for duty and eligibility for medical
retirement and separation benefits. Department of Defense Instruction (“DoDI”) 1332.18 directs
secretaries of the various military departments to “refer Service members who meet the criteria
for disability evaluation” into the DES. DoDI 1332.18, App. 1 to Enclosure 3, § 1. This referral
is the only way to access the DES, as “Service members cannot self-refer.” Torres v. Del Toro,
No. 21-cv-306-RCL, 2021 WL 4989451, at *2 (D.D.C. Oct. 27, 2021). When referring Service
members, officials make a critical choice that stands at the center of this case: whether to send a
member to the duty-related pathway of the DES or the non-duty related pathway. Members sent
to the duty-related pathway first go before the Medical Evaluation Board (“MEB”) for medical
evaluation and, when appropriate, proceed to the Physical Evaluation Board (“PEB”) for a
3 determination of fitness and eligibility for benefits. See DoDI 1332.18, Enclosure 3, §§ 1(a),
2(a), 3(a). Those referred into the non-duty related path, by contrast, “will be referred solely for
a fitness for duty determination” and have no prospect of receiving retirement or separation
benefits. Id., App. 1 to Enclosure 3, § 3(b).
DoDI 1332.18 spells out the eligibility requirements for these two pathways for Service
members who have satisfied the medical criteria. See id. § 2 (describing the requisite medical
criteria for referral to the DES). Those presumptively eligible for the duty-related pathway
include “Service members on active duty or in the [Reserve Component (‘RC’)] who are on
orders to active duty specifying a period of more than 30 days” as well as “RC members who are
not on orders to active duty specifying a period of more than 30 days but who incurred or
aggravated a medical condition while the member was ordered to active duty for more than 30
days.” Id. § 3(a)(1), (2). The Instruction also details certain conditions that disqualify otherwise
eligible Service members from referral to the duty-related pathway, including if the “[d]isability
results from intentional misconduct or willful neglect.” Id. § 4. The residual group of Service
members who otherwise meet the requisite medical criteria but do not fall within one of these
specified categories are placed into the non-duty related pathway, id. § 3(b), designed for Service
members with “[c]onditions that were neither incurred nor aggravated while the [Active
Component] or RC Service member was performing duty,” DoDI 1332.18, Glossary, Part II.
Beyond detailing eligibility requirements, DoDI 1332.18 establishes procedures for
determining whether a Service member incurred or aggravated her condition “in line of duty” (in
“LOD”) and is thus eligible for the duty-related pathway. It defines an “LOD determination” as
“[a]n inquiry to determine whether an injury or illness was incurred when the Service member
was in a military duty status,” or, “[i]f the Service member was not in a military duty status,
4 whether it was aggravated by military duty; or whether it was incurred or aggravated due to the
Service member’s intentional misconduct or willful negligence.” Id. These LOD determinations
ensure that eligible Service members receive appropriate benefits and, conversely, that ineligible
members are separated without benefits. See DoDI 1332.18, App. 3 to Enclosure 3, § 6. The
Instruction further maintains that “[w]hen an LOD determination is required, it will be done
before sending a Service member’s case to the PEB.” Id. § 6(b). It then provides a non-
exhaustive list of when LOD determinations are necessary. Id. § 6(d). But these are the
exceptions, rather than the rule. Many (if not most) cases will not require an individualized LOD
investigation because they are controlled by “[p]resumptive [d]eterminations,” id. § 6(c),
including a presumption that “diseases or injuries incurred by Service members on continuous
orders to active duty specifying a period of more than 30 days were incurred or aggravated in the
LOD unless the disease or injury was noted at time of entry into service,” id. § 7(c)(1).
Particularly relevant here, DoDI 1332.18 does not delve into the details of how military
officials should process Reservists entering the DES from non-active status. It makes clear that
non-active Reservists are eligible for benefits for “[a]ny medical conditions incurred or
aggravated during one period of active service . . . that recurs, is aggravated, or otherwise causes
the member to be unfit . . . provided the origin of such condition or its current state is not due to
the Service member’s misconduct or willful negligence, or progressed to unfitness as the result
of intervening events when the Service member was not in a duty status.” Id. § 7(e). Yet,
beyond that general statement of the eligibility requirements, the Instruction does not explain
when a military official or branch must investigate the origins of a Reservist’s injury. This
matter thus appears to be one of the many features of the DES that the Department of Defense
has left for the military branches to color in the details. See DoDI 1332.18, Enclosure 2, § 4(b).
5 The Navy has answered this call by creating its own dual-track DES process for sailors
and Marine Corps members. As with the Department of Defense regulations, the Secretary of
Navy Instructions (“SecNavInst”) contemplates the use of LOD investigations, see SecNavInst
1770.5, Enclosure 1, § 11(a), as well as the use of presumptions in lieu of an investigation, see
SecNav M-1850.1, Ch. 3, § 6, to funnel Service members into these two pathways. The main
issue in this case is the processes for referring Reservists whose conditions manifest or worsen
when they are not on active duty.
The Navy’s DES Manual explains that Service members who are eligible for the duty-
related pathway include “RC members who are not currently on orders to active duty specifying
a period of more than 30 days but who incurred or aggravated a medical condition while the
member was previously part of the Active Component (AC) or while ordered to active duty for
more than 30 days.” Id., Ch. 2, § 1(b). Those Reservists advance first to the MEB for a medical
determination and then to the PEB for an assessment of whether they are eligible for benefits.
See id., Ch. 1, § 2. However, the only way for a Reservist who is not on active duty for more
than 30 days prior to referral into the DES to access the duty-related path is to receive an “LOD
Benefits (LODB) Letter.” Id., Ch. 2, § 1 (having an LODB letter “is required” to access the
duty-related path). Reservists “with neither active duty orders for a period longer than 30 days
nor an LODB letter” are ineligible for the duty-related path and are instead sent to the Navy’s
non-duty related Medical Retention Review (“MRR”) process. Id., Ch. 4, § 5(b)(1). Under this
MRR process, Commanding Officers prepare an MRR package, including medical information
and a recommendation as to whether the member is fit for service, and submit this package to the
Bureau of Medicine and Surgery (“BUMED”) for a determination of the individual’s physical
qualification. See Navy’s Mot. to Remand 5 (citing Navy Reserve Personnel Manual 6000-010
6 §§ 5(f)(2), 5(f)(6); Bureau of Naval Personnel Instruction 1001.39F, Ch. 2, Enclosure 1,
§ 203(2)(a)). If the BUMED determines that a Reservist is not physically qualified, she may
either accept the finding and be discharged without benefits or appeal the decision to the PEB.
Id. at 5–6. The PEB can review only the BUMED’s determination of fitness, not whether the
underlying injury arose in the line of duty. Id. at 6 (citing DoDI 1332.18, App. 1 to Enclosure 3,
§ 3(b)).
An LODB letter is thus the key. With a letter in hand, a Reservist will proceed through
the DES’s duty-related pathway and receive the benefits to which she is entitled upon separation
or retirement. Without a letter, a Reservist is funneled through the MRR and, if unfit for service,
cut loose without any retirement or separation benefits. Given the central role that the LODB
letter plays in this scheme, one might imagine the Navy has a well-ordered process for
determining who qualifies for such a letter. But that is not the case. Until recently, the Navy had
no standardized policies or practices for doling out these letters.
That changed somewhat in February 2022, when the Navy Personnel Command issued a
new standard operating procedure (“SOP”) for sailors who believe they were wrongly referred
into the non-duty related MRR process to seek an LODB letter that will allow them to cross over
into the duty-related DES pipeline. See id., Ex. A (PERS-95 SOP 6000). In what can only be
described as an alphabet soup, the Navy termed this new directive the “LODB for DES SOP.”
See Navy’s Mot. to Remand at 7. Under the SOP—which the Navy revised and republished in
August 2022—a sailor “may submit a LOD-B for DES package for a potentially unfitting
condition incurred or aggravated during a qualified period of duty” after the BUMED has issued
its determination of the sailor’s fitness. See id., Ex. A §§ 3(b), 5(a). The new SOP provides
sailors with a detailed checklist that they must follow for requesting an LODB letter as well as
7 instructions for processing those complaints. But, as noted above, the procedure applies only to
sailors who have already been referred into the non-duty related pathway. It provides no
assistance for Reservists seeking an LODB letter before being referred into the DES. See id.
§ 4(g) (“IF SAILOR IS NOT ALREADY IN THE MRR PROCESS, DO NOT SUBMIT A MRR
PACKAGE FOR LOD-B FOR DES.”). Nor does it provide relief for Reservists who were
previously referred into the MRR process with no escape route and separated without benefits.
Reservists who were separated without benefits before the new SOP took effect are not
forever bound by that determination, however. Congress has authorized the Secretaries of the
military departments to amend “any military record” whenever “necessary to correct an error or
remove an injustice.” 10 U.S.C. § 1552(a)(1). The Secretary of the Navy has exercised this
authority by establishing the BCNR “for the purpose of determining the existence of error or
injustice in the naval records of current and former members of the Navy and Marine Corps.” 32
C.F.R. § 723.2(b). “Members who have been separated or permanently retired . . . can petition
the BCNR for relief.” SecNav M-1850.1, Ch. 4, § 8(a)(1). The BCNR then reviews all pertinent
evidence and determines whether to grant or deny the requested correction of records. 32 C.F.R.
§ 723.3(e)(1). An applicant may submit additional evidence not contained in the Navy’s records,
see id. § 723.4(e)(1), including evidence that her injury was incurred in the line of duty.
B. Factual and Procedural Background
LaKia Beasley and Richard Henderson are highly decorated former Navy members who
were medically separated while serving as non-active Reservists prior to the new SOP. Compl.
¶¶ 19–20. Beasley served in the Navy’s Active Component from 2006 to 2016. Id. ¶ 19. Within
months of her final deployment to Afghanistan in 2012 as part of Seal Team Four, two of her
close friends were killed in combat and her Commanding Officer died by suicide. Id. ¶¶ 59–62.
8 These losses stirred up feelings of anxiety and depression, according to Beasley, which
eventually led to chronic migraines, hypervigilance, insomnia, and asthma. Id. ¶ 64. Beasley
began receiving treatment for post-traumatic stress disorder (“PTSD”) and physical disabilities
before her Active Component enlistment ended, but her medical struggles allegedly continued
once she returned to the United States as a member of the Navy Reserve. Id. ¶ 65–66. It was at
this point that Beasley’s new Commanding Officer referred her into the non-duty related MRR
process. Id. ¶ 67. Once in the MRR process, the BUMED determined Beasley was unfit for
further service without investigating the origins of her conditions. Id. ¶ 68. Beasley appealed
her separation, asking the PEB to find that her injuries stemmed from her deployment. The PEB
refused this request on the ground that “[i]n adjudicating MRR cases, the PEB can only make a
Physically Qualified/Not Physically Qualified (PQ/NPQ) determination and is not authorized to
terminate a properly referred case or to render a Line of Duty Determination.” Administrative
Record (“AR”) at 4. The fact that Beasley had not received an LODB letter was determinative,
Compl. ¶ 71, and she was separated without benefits in May 2021, id. ¶ 76.
Richard Henderson’s separation played out along similar lines. Henderson enlisted in the
Navy Reserve in 2005 and rose through the ranks to become a First Class Petty Officer. Id. ¶ 20.
He was ordered to active duty and deployed to Afghanistan in 2014, where his base came under
rocket fire. Id. While running for cover, Henderson fell into a deep concrete ditch and injured
his neck, back, right knee, and shoulder. Id. ¶ 81. He was evacuated one month later to receive
treatment in Germany before returning to the United States where he underwent surgeries on his
knee and shoulder while on “MEDHOLD,” id. ¶¶ 82–84, a program “with the sole purpose of
addressing medical conditions incurred or aggravated while in the line of duty,” SecNavInst
1770.5, Enclosure 2, § 1. Once his active-duty orders ended in 2015, Henderson’s chain of
9 command launched an investigation into whether his ongoing injuries were incurred or
aggravated in the line of duty. Compl. ¶ 86. For some unknown reason, however, Henderson
says he never received an LODB letter. Id. As a result, after his conditions progressively
deteriorated over the next few years, the Navy referred Henderson into the MRR process. Id.
¶¶ 87–88. The BUMED declared Henderson physically unqualified for further service without
any determination of the origins of his injuries. Id. ¶ 89. Henderson then appealed his
determination to the PEB. Id. ¶¶ 90–92. As in Beasley’s case, however, the PEB refused to
consider evidence that Henderson’s condition was the result of his deployment and treated the
absence of an LODB letter as conclusive proof that he was not injured in the line of duty. Id.
Henderson was accordingly separated without medical retirement or separation benefits in
November 2020. Id. ¶ 94.
In early 2022, Beasley and Henderson filed a class action on behalf of themselves and
other Navy and Marine Corps Reserves who were separated from the military through the MRR
process without an LODB letter or any assessment of whether their injury was incurred in the
line of duty. Id. ¶¶ 96–97. Their complaint asserted three causes of action under the APA based
on the allegations that the Navy did not evaluate their eligibility for disability benefits or medical
retirement prior to their separations as required under the applicable Department of Defense and
Navy regulations outlined above. See id. ¶¶ 106–27. Plaintiffs sought an order setting aside
their separations and directing the Navy to assess their LOD status and, if found eligible, award
benefits. Id. ¶ 129. Additionally, Plaintiffs requested programmatic relief in the form of an
injunction requiring the Navy to “implement procedures” to ensure that Navy and Marine Corps
Reservists are evaluated for eligibility for medical retirement or separation going forward. Id.
¶ 129(g)–(h).
10 At the time they filed the complaint, Plaintiffs claim they were unaware that the Navy
had rolled out its new SOP one month earlier. See Opp’n to Remand at 6. Plaintiffs say they
first learned of that new policy during a meet-and-confer in October 2022, id., when the Navy
first “proposed voluntary remand and informed Plaintiffs that Defendants intended to move for
voluntary remand if Plaintiffs did not agree to it,” Navy’s Reply, Ex. A ¶ 8. After Plaintiffs
refused this offer, the sides proceeded with two sets of motions: one for class certification and
another for voluntary remand.
The parties filed their dualling motions on the same day. The Navy’s motion asserts that
the new SOP already supplies the systemic relief Plaintiffs seek and requests “voluntary remand
of Plaintiffs’ cases to the [BCNR] so [it] can, in light of the new guidance in the SOP, provide
the second half of Plaintiffs’ requested injunctive relief: a determination of their line-of-duty
status and, if appropriate, reconsideration of their eligibility for disability benefits or medical
retirement.” Navy’s Mot. to Remand at 1–2. Plaintiffs continue to refuse the offer, however,
reframing it as an “attempt by Defendants to pick off the claims of the named representatives
before the Court can rule on class certification.” Opp’n to Remand at 1. They protest that the
new SOP has not nullified the need for additional systemic relief because, in their eyes, “the SOP
suffers from the same core defects as the Navy’s previous practices . . . because the SOP (still)
fails to require the Navy to consider the origin or aggravation of Reservists’ disabilities prior to
sending those Reservists through the MRR.” Id. at 4–5.
Urging the Court to reject this “pick off” attempt, Plaintiffs seek to move ahead with the
certification of their putative class comprised of:
All veterans of the United States Navy Reserve or Marine Corps Reserve who were separated or are currently pending separation from the military through the Navy’s Medical Retention Review process as Not Physically Qualified without a Line of Duty Benefits Letter or a finding that they did not meet the eligibility criteria in
11 Department of Defense Instruction 1332.18 for duty-related DES processing prior to their referral to the MRR Physical Evaluation Board.
Plaintiffs’ Mot. for Class Cert. at 1. The Navy opposes this request by echoing its assertions in
its own motion for voluntary remand that class certification is “unnecessary in this case” because
the Navy has already “addressed the key programmatic issue Plaintiffs complain of.” Opp’n to
Class Cert. at 1. But beyond these practical considerations, the Navy insists Plaintiffs have failed
to satisfy Rule 23’s requirements for class certification. Id. Most critically, the Navy maintains
that the proposed class definition is overbroad because it “includes many—perhaps hundreds
of—individuals whose illness or injury was not incurred in the line of duty” and are therefore not
“statutorily eligible for disability benefits regardless of whether they were provided with an
LODB determination.” Id. Plaintiffs push back that this argument misconstrues their claim.
They disclaim any assertion that all purported class members’ substantive rights were violated
because these Service members were entitled to medical benefits. Rather, they contend that “the
injury to all Class members is the failure to provide a procedural process [for receiving the LOD
determinations] that is required by law” and insist this “failure harms all Class members
regardless of whether they would have received disability benefits if given the correct
procedure.” Plaintiffs’ Reply at 7.
II. Legal Standards
Courts have “broad discretion to grant or deny an agency’s motion to remand.” Util.
Solid Waste Activities Grp. v. EPA, 901 F.3d 414, 436 (D.C. Cir. 2018). In exercising this
discretion, courts often consider “whether [the agency requesting the remand] has identified
substantial and legitimate concerns in support of a voluntary remand, and whether a voluntary
remand would conserve the Court’s and the parties’ time and resources, without causing undue
prejudice to [the plaintiffs].” FBME Bank Ltd. v. Lew, 142 F. Supp. 3d 70, 73 (D.D.C. 2015)
12 (citations omitted). Courts generally grant such motions so long as “the agency intends to take
further action with respect to the original agency decision on review.” Limnia, Inc. v. U.S. Dep’t
of Energy, 857 F.3d 379, 386 (D.C. Cir. 2017) (emphasis removed). Although the agency need
not “confess error or impropriety in order to obtain a voluntary remand,” it typically must at least
“profess [an] intention to reconsider, re-review, or modify the original agency decision that is the
subject of the legal challenge.” Id. at 387; see also Carpenters Indus. Council v. Salazar, 734 F.
Supp. 2d 126, 132 (D.D.C. 2010) (“[C]ourts have long recognized the propriety of voluntarily
remanding a challenged agency action without judicial consideration of the merits upon an
admission of agency error.”).
As to the motion for class certification, “[t]he party seeking certification bears the burden
of persuasion, and must show that the putative classes meet the requirements of [Federal Rule of
Civil Procedure] 23 by a preponderance of the evidence.” Garnett v. Zeilinger, 301 F. Supp. 3d
199, 204 (D.D.C. 2018). Rule 23(a) establishes four threshold requirements for certification:
“(1) numerosity, that ‘the class is so numerous that joinder of all members is impracticable’; (2)
commonality, that ‘there are questions of law or fact common to the class’; (3) typicality, that
‘the claims or defenses of the representative parties are typical of the claims or defenses of the
class’; and (4) adequacy, that ‘the representative parties will fairly and adequately protect the
interests of the class.’” Id. (quoting Fed. R. Civ. P. 23(a)). In addition to meeting these four
requirements, the moving party must also “choose a type of class action under Rule 23(b) and
meet the requirements of that class type as well.” Attias v. CareFirst, Inc., 344 F.R.D. 38, 44
(D.D.C. 2023) (quoting Hoyte v. District of Columbia, 325 F.R.D. 485, 491 (D.D.C. 2017)).
13 III. Analysis
The Court will grant the Navy’s request for voluntary remand and deny Plaintiffs’ motion
for class certification without prejudice to renewal following remand. The Court is persuaded
that a voluntary remand is appropriate because it will provide Plaintiffs an opportunity to obtain
the benefits that they seek sooner, rather than later, and might shed light on whether the Navy
has successfully resolved some of the deficiencies in its prior DES processes. The Court is
cognizant of the potential pitfalls with remand when, as here, plaintiffs seek class certification in
the hopes of obtaining programmatic relief. It nonetheless finds that, on the facts of this case, the
advantages of remand outweigh any drawbacks—especially considering the significant issues
with Plaintiffs’ proposed class definition.
Regarding class certification, Plaintiffs center their proposed class around an alleged
procedural right to an actual determination on whether a Reservist’s injury was incurred or
aggravated in the line of duty. A close parsing of the regulations does not reveal this asserted
right. Although the regulations may compel Navy officials to act appropriately when confronted
with evidence that a Reservist was injured in active service to ensure she receives an LODB
letter, they do not appear to require the Navy to investigate and make an LOD determination for
each Reservist. Without such a blanket procedural right applying to all 319 Reservists in the
putative class who have been separated (or are pending separation) through the MRR process,
Plaintiffs’ proposed class flunks Rule 23 because it is significantly overbroad.
While Plaintiffs might be able to remedy these class issues through additional discovery,
and thus the denial of the class-certification motion will be without prejudice, the Court believes
the best course of action is to stay this case during the remand proceedings. Any further action
in this case would require additional rounds of briefing to resolve whether it is possible for
14 Plaintiffs to rework their class definition based on the Court’s reading of the regulations. It
would also drag the parties into a dispute over whether it is possible to conduct the necessary
class discovery here without infringing the privacy interests of potential class members. The
Court sees no good reason to charge full steam ahead into these thorny issues given that further
litigation may prove unnecessary depending on the results of the remand and any ongoing
discussions over a potential negotiated resolution that the parties seemed willing to undertake at
the motions hearing.
A. Voluntary Remand
Starting with the Navy’s motion for voluntary remand, the Navy has demonstrated that
remand is appropriate here because it will provide the Navy with a chance to correct its prior
failure to review Plaintiffs’ LOD status and offer Plaintiffs an opportunity to obtain the valuable
benefits they seek without further delay.
As noted above, courts generally grant an agency’s motion to remand if the agency has
indicated that it intends to take additional action to reconsider and potentially modify its original
decision. See Limnia, 857 F.3d at 386; Friends of Animals v. Williams, 628 F. Supp. 3d 71, 76
(D.D.C. 2022) (“An agency need not confess that its decision was erroneous in order to obtain a
remand; it must simply present a reason for reconsideration that is not frivolous or in bad faith.”).
That is the case here. Although the Navy has not admitted error, see Navy’s Mot. to Remand at
2, it has recognized its “potential error in not providing Plaintiffs with LODB determinations in
the first instance,” id. at 11. The Navy also has “acknowledge[d] that the new SOP provides a
framework for the Navy to consider whether Plaintiffs were entitled to line-of-duty benefits
determinations.” Id. at 2. It thus proposes that the Court remand this matter to the BCNR “to
allow the Navy to make, in the first instance, a decision regarding Plaintiffs’ LODB status, and
15 to do so in light of the new standard operating procedure setting forth how sailors in MRR
status—as Plaintiffs were—can seek an LODB determination and, if appropriate, be placed in
the DES.” Id. at 11. This certainly constitutes a “substantial and legitimate” reason to seek
voluntary remand. FBME Bank Ltd., 142 F. Supp. at 73.
Plaintiffs’ conjecture that this potential relief is illusory because nothing in the new SOP
indicates that it has retroactive effect does not change this fact. Opp’n to Remand at 14. As the
Navy explained in its briefing and during the hearing, see Navy’s Reply at 16; Hearing Tr. at 13–
14, whether the SOP technically has retroactive effect is not determinative because the BCNR’s
task remains the same: to “correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(1); 32
C.F.R. § 723.2(a). The BCNR therefore stands ready to correct any error in Plaintiffs’ records
and award them their appropriate benefits regardless of the SOP’s applicability. But that does
not mean that the SOP is entirely irrelevant either. Rather, the SOP demonstrates that the Navy
has recognized the issue and taken strides to solve the problem. These efforts satisfy the Court
that the Navy is committed to rectifying any past errors in the processing of Plaintiffs’ cases on
remand.
Relatedly, the Court sees no evidence that the Navy is operating in bad faith and no
reason why remand would unduly prejudice Plaintiffs. See Limnia, 857 F.3d at 386. The Navy
has identified a problem with its DES processes and is attempting to resolve the issue by
redesigning its procedures and by reexamining the cases of Plaintiffs who were potentially
wrongfully denied benefits under the old system. That makes this case a suitable candidate for
voluntary remand given that courts generally “prefer[] to allow agencies to cure their own
mistakes” when they express a desire for doing so. Ethyl Corp. v. Browner, 989 F.2d 522, 524
(D.C. Cir. 1993).
16 Plaintiffs see things differently. They first point out that the Navy waited nearly seven
months after Plaintiffs filed this case and the SOP went into effect to offer remand and contend
that this delay renders the remand offer too little, too late. See Opp’n to Remand at 11–13. The
Court disagrees. It is not unusual for an agency to take some time before agreeing to a do-over,
and courts oftentimes grant motions for voluntary remand filed many months after a lawsuit gets
underway. See, e.g., Carpenters Indus. Council, 734 F. Supp. 2d at 130–31, 134–35; Lohmann v.
United States, 154 Fed. Cl. 355, 359–60 (2021). The D.C. Circuit’s decision in Lutheran
Church-Missouri Synod v. FCC, 141 F.3d 344 (D.C. Cir. 1998), is not to the contrary. There, the
court found the agency’s “novel, last second motion to remand” after oral argument was little
more than a “legal tactic[] . . . to avoid judicial review.” Id. at 349. But that decision in no way
indicated that a multi-month lag in offering voluntary remand will doom such a request in less
extreme cases where the remand request does not evince a bad-faith effort to dodge judicial
oversight. Here, nothing suggests that the Navy’s offer to remand Plaintiffs’ cases during a
meet-and-confer one month after the Navy revised its new SOP (which it initially implemented
prior to the filing of this lawsuit) and before any motion was pending before the Court was a
similarly evasive maneuver. Nor have Plaintiffs shown how this delay prejudiced them. And
even if slow walking the remand offer did prejudice Plaintiffs by preventing them from accessing
benefits sooner, refusing that offer now would only compound the problem.
Plaintiffs maintain that this line of reasoning about their individual claims misses the
mark because their primary objection to remand is it will interfere with their ability to proceed
with their class action. In particular, Plaintiffs express concerns that the Navy may be attempting
to “pick off” the named representatives before the Court can rule on their class-certification
motion. See Opp’n to Remand at 7–11. They raise alarms that permitting such a ruse would
17 “provide[] an end-run around the protections of Rule 23,” id. at 10, and note that courts typically
fight back efforts to moot a named plaintiff’s case in order to kill off the proposed class, see, e.g.,
Plunkett v. Castro, 67 F. Supp. 3d 1, 12 & n.6 (D.D.C. 2014) (holding that a “defendant may not
moot a motion for class certification by providing judgment to the named plaintiffs”); Wilson v.
Gordon, 822 F.3d 934, 947–49 (6th Cir. 2016) (collecting “pick off” cases). Such fears
regarding pick off are doubly misplaced here, however.
At the outset, the pick-off doctrine is an exception to claims of mootness rather than a
carve out to the standard rules regarding voluntary remand. See Kang v. Dep’t of Homeland
Sec., 2022 WL 4446385, at *5 (D.D.C. Sept. 23, 2022). The Navy is not claiming that the
Plaintiffs’ claims are moot, and remand would not eliminate their ability to seek class relief if
further litigation is necessary following the proceedings before the BCNR. The proper time to
raise this objection would therefore be if the Navy filed a Rule 12(b)(1) motion to dismiss after
those proceedings. But that is not the issue before the Court now. As a result, whether the pick-
off doctrine applies in this context (even in spirit) is largely beside the point.1 Furthermore,
Plaintiffs contend that the pick-off doctrine’s animating principle is to ensure plaintiffs are
“accorded a fair opportunity to show that certification is warranted.” Campbell-Ewald Co. v.
Gomez, 577 U.S. 153, 165 (2016), as revised (Feb. 9, 2016). Even if this principle generally
suggests courts should be hesitant in granting voluntary remand in putative class actions seeking
programmatic relief, those considerations are inapt here because the Court is not remanding
Plaintiffs cases before they have had a fair opportunity to litigate their class-certification motion.
1 Accordingly, other courts have granted motions for voluntary remand to a military board of records correction in putative class action suits. See Order, Monk v. Mabus, No. 14-cv- 260, ECF No. 48 (D. Conn. Nov. 14, 2014); Lohmann, 154 Fed. Cl. at 360–61.
18 Rather, as detailed below, the Court finds remand is appropriate here in part because Plaintiffs
have had their chance to litigate their class-certification motion but have failed to show that they
can satisfy Rule 23—at least under the current class definition. There is nothing unfair about
remanding Plaintiffs cases to the Navy in this context.
Remand would also not harm judicial economy by putting off class resolution in favor of
piecemeal relief, as Plaintiffs suggest. See Opp’n to Remand at 13. To the contrary: It would be
inefficient to afford Plaintiffs a second stab at class certification—which, for the reasons detailed
below, would involve additional rounds of briefing and possibly complicated class discovery—
when the Navy has offered Plaintiffs an opportunity to receive the benefits they seek. Judicial
economy also tilts in favor of remand in this case because it will provide the parties with an
opportunity to observe how the BCNR handles Reservists who have already been separated and
whether the Navy’s new SOP works as intended for Reservists who are still working their way
through the DES process. This additional information, in turn, will aid the parties in ongoing
negotiations in this matter, which may obviate the need for any further judicial involvement.
For these reasons, the Court will grant the Navy’s motion for voluntary remand. But to
fully explain why this is the best route forward, the Court explores below why Plaintiffs’ current
class-certification motion falls short.
B. Class Certification
The dispute over class certification here hinges on whether Reservists have a procedural
right to an individualized LOD determination in the DES process. Plaintiffs contend that three
provisions in the Department of Defense’s and the Navy’s regulations create such a procedural
right and specify that the determination must occur before the Navy refers a case to the PEB: (1)
DoDI 1332.18, Appendix 1 to Enclosure 3, § 1; (2) DoDI 1332.18, Appendix 3 to Enclosure 3,
19 § 6; and (3) SecNavInst 1770.5, Enclosure 1, § 3(i). Under Plaintiffs’ reading of these
regulations, all 319 putative class members suffered the same system-wide violation of their
procedural rights, regardless of whether they are ultimately entitled to benefits. Additionally,
they contend that the Navy’s new SOP fails to resolve the core issue because it wrongly retains
Reservists’ burden to request an LODB letter and permits them to do so only after entering the
non-duty MRR process.
The Navy takes the opposite view. It maintains the regulations confer a substantive right
to benefits for eligible Service members but create no procedural right to an LOD determination.
If a Reservist believes her current injury spawns from her prior deployment, the Navy insists it is
the Reservists’ onus to request an LODB letter because, in the absence of a letter, the controlling
presumption is that the injury was not incurred or aggravated while on active duty. Without a
procedural right, the question becomes whether each Reservist was erroneously denied benefits
despite meeting the statutory requirements—an individualized determination not suitable for
class-wide resolution.
From the Court’s reading of the regulations, reality lies somewhere in the middle of these
two positions. Plaintiffs appear to overread the three provisions on which they chiefly rely in an
effort to create an ironclad obligation to investigate LOD status. But it requires inferential leaps
and contortions of the regulatory text to reach this result. And, even then, the outcome is hard to
square with the fact the regulations permit the Navy to rely on certain presumptions of eligibility
for DES benefits. But that does not imply that the regulations give the Navy carte blanche to
funnel Reservists into the MRR process even when there are clear indicators their injuries stem
from the line of duty. Commanding Officers must respond reasonably to reported conditions to
ensure eligible Reservists are referred into the proper DES channel. In other words, higher ups
20 are not free to ignore warning signs that a Reservist’s reported injury might have been incurred
while in active status.
This procedural obligation, however, is far more supple than the rigid procedural right
Plaintiffs advance. While the Navy appears to have violated this duty when it referred LaKia
Beasley and Richard Henderson into the non-duty related path despite clear indications that their
conditions directly resulted from their deployments to Afghanistan, it is doubtful that the Navy
violated this duty for all 319 putative class members. Thus, even if its reasoning may be flawed,
the Navy is correct in arguing that Plaintiffs class is overbroad. Without a clearer understanding
of the class’s proper scope, the Court cannot determine whether it satisfies Rule 23’s numerosity
requirement or whether Plaintiffs’ experiences are typical of the Reservists they seek to
represent. The Court therefore cannot certify the putative class at this point. Moreover, while
class discovery could resolve some of these issues, discovery might prove challenging in this
area given the significant privacy interests at play. And, even if discovery can proceed, it is
uncertain whether it would save the class here because it is unclear whether class-wide legal
issues will predominate case-specific factual questions. Rather than plunge headfirst into these
murky waters, the Court will deny the class-certification motion without prejudice to renewal
after remand proceedings.
1. Plaintiffs’ Claimed Procedural Right
Plaintiffs point to three regulations—(1) DoDI 1332.18, Appendix 1 to Enclosure 3, § 1;
(2) DoDI 1332.18, Appendix 3 to Enclosure 3, § 6; and (3) SecNavInst 1770.5, Enclosure 1,
§ 3(i)—as evidence that the Navy must investigate the causes of a Reservist’s condition before
referring her to the non-duty related MRR process. Upon close inspection, however, this trio of
regulations does not create a blanket procedural right to an LOD determination in every case.
21 The first provision that Plaintiffs identify is DoDI 1332.18, Appendix 1 to Enclosure 3,
§ 1. This provision directs the “Secretary of the Military Department concerned [to] refer [into
the DES Service] members who meet the criteria for disability evaluation regardless of eligibility
for disability compensation.” The next section termed “Criteria for Referral” specifies the
medical requirements for referral into the DES and reiterates that military officials must refer
members into the system whenever these conditions are satisfied. Id. § 2(a). The Instruction
then describes the “Eligibility for Referral” into the two different DES paths. Id. § 3. Under the
banner “Duty-[R]elated Determinations,” it states that, “[e]xcept as provided in section 4 of this
appendix, the following categories of Service members who meet the criteria in section 2 of this
appendix are eligible for referral to the DES for duty-related determinations”—listing Service
members on duty for more than 30 days and “RC members who are not on orders to active duty
specifying a period of more than 30 days but who incurred or aggravated a medical condition
while the member was ordered to active duty for more than 30 days.” Id. § 3(a). The Instruction
then defines a residual group of “Non-[D]uty Related Determinations” when explaining that
“[m]embers the RC with non-duty related determinations, who are otherwise eligible as
described in section 2 of this appendix, will be referred solely for a fitness for duty determination
when one of the following [three conditions] exist.” Id. § 3(b). As relevant here, the first of
these conditions is that “the RC member does not qualify under paragraph 3.a. of this appendix.”
Id. § 3(b)(1).
Plaintiffs read the mandatory language that “the Secretary of the Military Department
concerned will refer Service members who meet the criteria for disability evaluation” to mean
that each branch “is required to refer all eligible Service members into the duty-related path of
the DES.” See Plaintiffs’ Mot. for Class Cert. at 5–6. To satisfy that obligation, Plaintiffs
22 contend that the Navy must determine whether a Service member incurred his or her injuries in
the line of duty and is therefore eligible for the duty-related pathway. See id. That interpretation
places more weight on these words than they can bear, however. This provision mandates that
the Secretary of the Navy refer members “who meet the criteria for disability evaluation
regardless of eligibility for disability compensation.” The mandatory language is thus used in
reference to the medical criteria for separation or retirement specified in § 2, not LOD criteria in
§ 3 specifying eligibility for the duty-related path. In other words, the regulation directs the
Secretary of the Navy to refer members to the DES when the medical conditions are satisfied. It
does not mandate any processes that the Secretary must follow to ensure members are referred
into the proper channel depending on whether their injuries were duty related. Plaintiffs attempt
to elide that issue by insisting that Service members who are eligible for the “duty-related”
pathway are inherently ineligible for the “non-duty related pathway,” and thus a Secretary can
fulfill her obligation only by screening for LOD status. See id. at 6. But that argument rests on a
significant inferential leap that cannot be supported considering that the second provision of
DoDI 1332.18 on which Plaintiffs rely makes clear an investigation into LOD status is not in fact
required in every case.2
This second provision—DoDI 1332.18, Appendix 3 to Enclosure 3, § 6—describes the
“standards for determining compensable disabilities” by detailing the requirements for “LOD
determinations,” which the Instruction defines as an “inquiry to determine whether an injury or
illness was incurred [or aggravated] when the Service member was in a military duty status . . .
2 For similar reasons, Plaintiffs’ citation to DoDI 1241.01 § 3(c)’s statement that an “RC member will be referred to the DES when the criteria for referral are met in accordance with DoDI 1332.18” also does not create a procedural right because this cross-reference does not specify the procedures for sorting between the two pathways. See Compl. ¶ 108.
23 or whether it was incurred or aggravated due to the Service member’s intentional misconduct or
willful negligence.” Id., Glossary, Part II. The provision first notes that “LOD determinations
will be made in accordance with the regulations of the respective Military Department. When an
LOD determination is required, the DES will consider the finding made for those issues mutually
applicable to LOD and DES determinations.” Id., App. 3 to Enclosure 3, § 6(a)(1). It further
specifies that “[w]hen an LOD determination is required, it will be done before sending a Service
member’s case to the PEB.” Id. § 6(b). Following up on this directive, the provision outlines a
non-exhaustive list of required determinations:
Required Determinations. At a minimum, LOD determinations will be required in these circumstances[:] (1) Injury, disease, or medical condition that may be due to the Service member’s intentional misconduct or willful negligence, such as a motor vehicle accident[;] (2) Injury involving the abuse of alcohol or other drugs[;] (3) Self-inflicted injury[;] (4) Injury or disease possibly incurred during a period of unauthorized absence[;] (5) Injury or disease apparently incurred during a course of conduct for which charges have been preferred[; and] (6) Injury, illness, or disease of RC members on orders specifying a period of active duty of 30 days or less while [performing a specified set of duties].
Id. § 6(d). Conversely, the provision also lists “Presumptive Determinations” in which an LOD
investigation is not necessary because the “determination is presumed to be in the LOD.” Id.
§ 6(c). The Instruction goes on to state that the “Secretaries of the Military Departments will
presume that diseases or injuries incurred by Service members on continuous orders to active
duty specifying a period of more than 30 days were incurred or aggravated in the LOD unless the
disease or injury was noted at the time of entry into service” or the presumption is rebutted by
“clear and unmistakable evidence.” Id. § 7(c)(1). By contrast, “[t]here is no presumption of
incurrence or aggravation in the LOD for RC Service members serving on orders of 30 days or
less.” Id. § 7(d)(3).
24 Plaintiffs home in on the language requiring that the military departments complete LOD
determinations before sending cases to the PEB. They contend that Navy officials violated this
procedural requirement in their cases because they never conducted an LOD investigation and
that the Navy continues to violate this requirement even under the new SOP because it only
creates an opportunity to receive an LOD determination after a Reservist has entered the MRR
process. Plaintiffs’ Mot. for Class Cert. at 12. But, the Navy points out, this provision lists
specific circumstances where “LOD determinations are . . . required,” and none of those apply in
the cases at issue here. Opp’n to Class Cert. at 5. Indeed, the Navy contends that the absence of
“Reservist status” from the list of “Required Determinations” is affirmative evidence that Navy
officials are not required to investigate the sources of Reservists’ injuries. See id.; Hearing Tr. at
43.
Once again, Plaintiffs’ arguments are unconvincing. The Navy may overstep here given
the regulation states, “[a]t a minimum, LOD determinations will be required in [the enumerated]
circumstances.” LOD determinations thus may be required in circumstances that are not listed.
Nonetheless, the repeated references to “when an LOD determination is required” combined with
the specific enumeration of required determinations makes clear that an investigation is not
required in every instance. In many cases, whether a Service member is referred into the duty-
related pipeline will turn on a controlling presumption. When a Service member suffers an
injury on active duty for more than 30 days, for example, her case typically will be controlled by
a presumption that the injury was incurred in the line of duty. Nothing in the regulation rules out
the possibility of the inverse presumption that a Reservist who reports an injury while she is not
on active duty did not suffer the injury in the line of duty unless she proves otherwise.
25 The broader regulatory context also casts doubt on Plaintiffs’ argument that the new SOP
is deficient because “DoDI 1332.18 makes clear that if the Navy is going to require an LOD
determination for DES referral, the determination must occur before the Service member goes to
a PEB.” Plaintiffs’ Mot. for Class Cert. at 12. Plaintiffs complain that, even under the new SOP,
Reservists who are referred to the non-duty MRR process do not receive an LOD determination
prior to appealing the BUMED’s medical determination to the PEB. But this provision of DoDI
1332.18 appears to apply to the process for a case that is moving through the duty-related DES
channel, going first to the MEB for a medical assessment and then to the PEB for an allocation
of benefits. Within that pipeline, an LOD determination must be completed before the case gets
to the PEB because the PEB needs that assessment in order to allocate benefits. The enumerated
list of required determinations further supports this reading. In each of the listed cases, without
an in-LOD determination indicating that the Service member did not suffer an injury while in the
line of duty, the controlling presumption would entitle that member to retirement benefits. The
purpose of requiring that the PEB have the LOD determination in hand thus appears to be culling
back benefits from otherwise eligible recipients. Given this purpose, the provision would appear
to shed little light on the timing of LOD determinations for non-active Reservists placed into the
non-duty path. This is especially true considering DoDI 1332.18 focuses on the DES process
“for all newly initiated cases referred under the duty-related process,” DoDI 1332.18, Enclosure
3, § 1(b)(1), leaving the rules governing the non-duty related path largely undefined.
The third and final provision that Plaintiffs focus on is SecNavInst 1770.5, Enclosure 1,
§ 3(i), which describes the DES obligations of the Chief of Naval Operations (“CNO”) and the
Commandant of the Marine Corps (“CMC”). Section 3 begins by explaining the “CNO and the
CMC are the [Benefit Issuing Authorities (‘BIAs’)] for their respective service and responsible
26 for efficient, effective case management and disposition of RC Service Members who incur or
aggravate an illness, injury, or disease that qualifies for benefits under this instruction.” Id. § 3.
As the BIAs, the CNO and CMC “coordinate healthcare for RC members for an injury, illness,
or disease incurred or aggravated in the line of duty” and “administer the in-LOD benefits and
Incapacitation Pay programs.” Id. Section 3(i) instructs the CNO and CMC to:
Direct in-LOD determination cases to the Integrated Disability Evaluation System (IDES) for conditions that may be permanent because the nature and degree of the condition may render the member unable to continue naval service within a reasonable period of time per references (h) and (j). Ensure all cases referred to the Physical Evaluation Board (PEB) contain complete in-LOD documentation regardless of whether illness, injury, or disease incurred either on or off-duty.
Id. § 3(i).
Plaintiffs read this requirement that “all cases referred to the [PEB] contain complete in-
LOD documentation” as connecting with DoDI 1332.18’s corresponding instructions to require
that Navy officials make an LOD determination before a case gets to the PEB. See Plaintiffs’
Mot. for Class Cert. at 7–8 (citation omitted). The Navy retorts that, as was the case with the
analogous DoDI 1332.18 provision, this requirement is inapplicable because it pertains only to
instances in which a case in the duty-related DES pipeline is referred from the MEB to the PEB.
See Navy’s Reply at 19 (“Naval regulations require ‘complete in-LOD documentation’ only
where a sailor enters the DES via the duty-related path[.]”). The Navy once again has the better
of the argument.
For starters, there is ample reason to believe the requirement for LOD documentation is
reserved for cases proceeding through the duty-related DES pathway from the MEB to the PEB
because those are the only instances in which the PEB needs LOD paperwork in hand to allocate
benefits. When a case instead gets to the PEB through the non-duty pathway via an appeal of the
BUMED’s medical determination, the PEB sits as an appellate panel reviewing only the fitness
27 determination. It does not assess LOD status in this appeal, as the named Plaintiffs learned when
the PEB refused to consider LOD evidence during their appeals and insisted that the matter was
beyond its scope of review. See AR at 4; Compl. ¶¶ 90–92. SecNav M-1850.1—the regulation
dedicated to the DES process—reinforces this point when describing the PEB stage as reviewing
a DES casefile referred from the MEB for an allocation of benefits, which is markedly different
from the role the PEB plays when it sits as an appellate body in review of the BUMED’s medical
determinations in the non-duty MRR process. See SecNav M-1850.1, Ch. 1, § 2(c). This DES
Manual directs, “[b]efore referring a case for PEB review, the MEB Convening Authority shall
review case records to ensure they contain required LOD/M determinations from the responsible
command.” Id., Ch. 3, § 6(e). Here, the regulation contemplates that when LOD documentation
is required—an important caveat that the Court will take up below—the MEB must ensure that it
is completed before forwarding a case to the PEB. It is most natural to read SecNavInst 1770.5’s
analogous requirement as applying to the same set of cases, not to the separate category of non-
duty related cases in the MRR process.
This commonsense cabining finds some textual support. The provision at issue here
applies to “in-LOD determination cases.” SecNavInst 1770.5 defines “in-LOD determination”
as an “authorization of health care benefits,” which takes place in the duty-related DES process,
not the non-duty related MRR process. SecNavInst 1770.5, Enclosure 3, § 16. At the same time,
however, some other textual clues point in the opposite direction. This provision uses expansive
language, directing that “all cases” include “complete in-LOD documentation regardless of
whether illness, injury, or disease [was] incurred either on or off-duty.” Viewed in a vacuum,
then, this broad language could suggest that the provision refers to a wider universe of cases that
might sweep within its ambit cases appealed from the MRR process.
28 But the Court cannot read one provision in isolation, as the overall scheme here undercuts
Plaintiffs’ reading of the undefined term “complete in-LOD documentation” as requiring that the
Navy conduct an LOD investigation in every case that reaches the PEB. After all, DoDI 1332.18
and corresponding Navy regulations clearly contemplate that an investigation is not required in
the mine-run of cases that are controlled by presumptions. For example, there will be little (if
any) “in-LOD documentation” for cases where a Service member was injured while on active
duty for more than 30 days and the case does not fall within one of the “required determination”
categories because the in-LOD presumption controls. By the same token, nothing precludes the
possibility that there will similarly be no in-LOD documentation for most non-active Reservists’
cases if they are governed by a contrary presumption that their injury did not arise in the line of
duty. From this perspective, the requirement that the CNO and CMS must ensure that a case file
has complete in-LOD documentation before going to the PEB is not an elephant in a mousehole
that creates a new procedural right to an LOD investigation in every single case. See Whitman
v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (describing the no “elephants in mouseholes”
canon). It is instead a simple requirement for these DES case managers to ensure that whatever
LOD documentation exists is forwarded to the PEB.
This interpretation jibes with other on-point Navy regulations. The Navy’s DES Manual
describes the various stages of the DES process. The Manual states that the PEB should review
“LOD/M determinations, when appropriate” and “LOD Benefits Letters for Reservists, when
appropriate.” SecNav M-1850.1, Ch. 1, § 2(c)(1)(b), (h) (emphasis added). It also requires that
so-called “PEBLOs,” who assist Service members throughout the DES process, obtain “the LOD
investigation and determination with all supporting documentation, when required, from the
Service Member’s command.” Id. § 5(d)(13) (emphasis added). PEBLOs also consult with the
29 member’s chain of command, which “provides a Non-Medical Assessment of duty performance
and LOD determination, when necessary,” id. § 7(c)(3) (emphasis added). Repeated references
to LOD documentation “when required,” “when appropriate,” or “when necessary” drives home
the point that a requirement for “complete in-LOD documentation” does not imply there must be
an investigation into LOD status in every case before it goes before the PEB. See also id., Ch. 3,
§ 4(g)(1) (“When a determination is required, the MEB will consider the findings made for those
issues mutually applicable to the LOD and DES referral determinations.” (emphasis added)).
Taking stock, none of the three regulations on which Plaintiffs rely create the blanket
procedural right to a DES investigation that they claim the Navy violated for all purported class
members. Even when the Court views these three regulations in unison, rather than in isolation,
it fails to see anything in the regulations indicating the Navy must conduct an LOD investigation
in every case. In fact, a plain reading of the regulations shows the opposite given that the Navy
may rely on certain presumptions when sorting Service members between the duty-related and
non-duty related DES paths. Nor can the interpretative canon that “provisions for benefits to
members of the Armed Services are to be construed in the beneficiaries’ favor” save Plaintiffs’
claims. Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 441 (2011) (citation omitted).
This pro-veteran canon puts a thumb on the scale in Service members’ favor when, after
exhausting the ordinary tools of interpretation, things stand in equipoise. See generally Kisor v.
McDonough, 995 F.3d 1347, 1348–58 (Fed. Cir. 2021) (en banc) (Prost, C.J., concurring)
(overviewing the pro-veteran canon’s proper role). It cannot craft a procedural right that is
unsupported by the regulatory text.
But none of this means that Navy officials have no obligation to ensure eligible Service
members are referred into the proper DES channel and receive the benefits that they are owed.
30 Although the LOD determination process is not as structured as Plaintiffs suggest, there are still
some procedural requirements that, on the named Plaintiffs’ allegations, the Navy likely violated
in their (and potentially other putative class members’) cases.
2. An Alternative Procedural Right
Peeling back the curtain to reveal a larger ensemble of regulations beyond those Plaintiffs
spotlight, the Court finds that Navy officials do in fact have some duty to respond to Reservists’
reported injuries and inquire into their causes to determine if the Service member is eligible for
DES benefits. The question becomes whether this more nuanced procedural right is susceptible
to class-wide resolution—a complicated issue that the Court need not definitively resolve at this
juncture.
As noted above, DoDI 1332.18 specifies the processes and presumptions that apply to
active Service members as well as Reservists who are deployed for more than 30 days. Yet it
pays almost no attention to how non-active Reservists navigate their way through the DES. For
more detail on the rules governing this group of Service members at the center of this case, one
must look to a different regulation: DoDI 1241.01. Although the parties pay it scant attention,
DoDI 1241.01 is the regulation that directly addresses medical benefits for Reservists, covering a
wide array of benefits, including separation and retirement benefits. The regulation begins by
noting an “in-LOD determination” is a “prerequisite” for treatment and benefits. DoDI 1241.01
§ 3(a)(3). It then details the procedures for the “initiation of in-LOD determination” by stating
that “[u]nless already initiated by a member’s command, the RC Service member . . . will initiate
the request for an in-LOD determination.” Id., Enclosure 3, § 2(a)(1). This directive to request
an LOD determination once more refutes Plaintiffs’ categorical claim that sailors never bear the
burden of seeking an in-LOD determination because this onus lies exclusively with the Navy.
31 See Plaintiffs’ Mot. for Class Cert. at 1 (arguing the burden “rest[s] squarely with the military,
not the Service member”). But the regulation does not suggest that military departments should
be passive players in this process. It instead specifies that a Service member should make the
request “[u]nless already initiated by a member’s command.” Thus, the regulation envisions a
process in which a Reservist is in dialogue with her higher ups and either side can call for an
LOD determination when necessary. For further detail on how that conversation plays out, one
must turn to the Navy’s own regulations on the matter.
Beyond reciting responsibilities of the CNO and CMS, SecNavInst 1770.5 also describes
the duties of Commanding Officers and rank-and-file Reservists. For Commanding Officers, the
regulation states that “[t]he RC Service Member’s chain of command shall ensure expeditious
medical treatment and proper case management. The command shall ensure counseling on the
rights and benefits to which the Service Member is entitled, is provided.” SecNavInst 1770.5,
Enclosure 1, § 11. SecNavInst 1770.5 then liquidates this general duty with specific directives.
It first states: “When a Service member reports an injury incurred or aggravated during a period
of duty or while in a covered travel status, an LODI”—which is defined as “[a]n investigation to
document the official record of the circumstances surrounding an injury, illness, or disease
incurred or aggravated on active or inactive duty which may require healthcare subject to an in-
LOD Determination decision,” id., Enclosure 3, § 17—“will be conducted, to document the
occurrence and establish the Service Member’s basis for eligibility.” Id., Enclosure 1, § 11(a).
The regulation then instructs that “[w]hen a Service Member reports an injury not incurred or
aggravated during a period of authorized duty or when not in a covered travel status, but the
injury impacts the member’s ability to perform military duties, the command shall conduct
proper screening of records to ensure the injury is not related to a previously reported injury
32 incurred in-LOD.” Id. § 11(b). For Commanding Officers to serve this role, Service members
must play their part by reporting “any injury, illness, or disease incurred or aggravated during a
period of duty as soon as possible via the chain of command after occurrence.” Id. § 12(a). In
doing so, sailors must “[p]rovide the chain of command all applicable information to complete
an LODI.” Id. § 12(b).
Here, the envisioned back-and-forth dialogue comes into focus. The regulation notably
does not require that Commanding Officers conduct an LODI whenever a non-active Reservist
reports an injury, as it appears to mandate for active-duty members. See Antonin Scalia & Bryan
Garner, Reading Law: The Interpretation of Legal Texts 170 (2012) (noting that courts should
pay attention to meaningful variation). It instead creates interlocking obligations for Reservists
and their Commanding Officers: Reservists must come forward with all relevant information
about their injuries, and Commanding Officers must use that information to make an in-LOD
determination when appropriate. It is through this back and forth that the regulations ensure
Reservists are placed into the proper DES channel. Thus, even if Commanding Officers do not
have an affirmative duty to conduct an LOD investigation in every case, these higher ups in the
Navy must respond appropriately to reported injuries to ensure that Reservists receive an LOD
determination when suitable.
Commanding Officers appear to have shirked this obligation when processing the two
named Plaintiffs. One quick glance at Richard Henderson’s file would have revealed that his
injury likely stemmed from his deployment in Afghanistan, where he was airlifted from the line
of duty for medical treatment and underwent surgeries through a MEDHOLD program available
only to those injured in the line of duty. The same is true for LaKia Beasley, who was treated for
PTSD before her active enlistment ended and eventually separated for that same condition. For
33 some reason, however, their Commanding Officers failed to procure an LODB letter. Beasley
and Henderson were accordingly placed into the non-duty related MRR pathway with no chance
of receiving the benefits to which they were (allegedly) entitled. If their cases are representative
of other Reservists’ experiences, then there could well be a systemic violation of procedural
rights—one that the new SOP would not resolve by allowing individuals who have already been
wrongly placed into MRR to request a transfer into the duty-related pathway.
But a systemic violation of this more nuanced procedural right likely would not save
Plaintiffs’ proposed class. The actual procedural violation here, unlike the one Plaintiffs
advance, is not a universal violation that will apply to all 319 putative class members who have
been or are in the process of being separated from the Navy without a formal LOD investigation.
Rather, the violation is more subtle: It is a failure on the part of Commanding Officers to act
appropriately when confronted with evidence that a Reservist was injured in the line of duty to
ensure eligible Reservists receive an LODB letter and proceed through the duty-related process.
So defined, it is highly unlikely that every member of the putative class suffered a violation of
her procedural rights. For example, Commanding Officers would have little obligation to
investigate further in the hypothetical case of the Reservist who reports she injured her back not
while in the line of duty but while working as a civilian managing inventory in her job at Costco.
Such an individual should therefore not fall within the aggrieved class because she did not
endure any intrusion upon her rights. At this stage, the Court has no idea how many of the 319
identified Reservist’s cases resemble those of the two named Plaintiffs or just how many are cut
from the same cloth as the hypothetical Costco employee. It could be a large number that had
their rights violated; or it could be limited to the handful of individuals whom Plaintiffs have
identified. See Plaintiffs’ Mot. for Class Cert., Ex. 5 (Hurst Decl.); id., Ex. 6 (Fulkerson Decl.);
34 id., Ex. 7 (Ganaban Decl.). The problem is that the Court is currently in the dark and that there is
no way for it to determine whether the class is so numerous that joinder would be impracticable
or whether Ms. Beasley and Mr. Henderson are representative of the class they seek to represent.
The fact that the Court is left guessing on these central matters proves that Plaintiffs have not
met their burden of showing by a preponderance of the evidence that they satisfy all Rule 23
requirements. See Garnett, 301 F. Supp. 3d at 204. For that reason, the Court must deny
Plaintiffs’ motion.
That dismissal will be without prejudice, however, as Plaintiffs have not yet had an
opportunity to brief this matter and have raised the prospect that limited discovery could alleviate
any concerns about the putative class. See Plaintiffs’ Mot. for Class Cert. at 24–25. Class
discovery, for example, could reveal how many Reservists suffered similar procedural violations
at the hands of Commanding Officers who ignored clear warning signs that their conditions were
incurred or aggravated in the line of duty. And contrary to what the Navy suggests, see Opp’n to
Class Cert. at 32 & n.11, the Court finds no authority indicating that class discovery is
inappropriate here because review in APA cases is typically limited to the administrative record.
In fact, courts routinely permit discovery in APA cases for discrete matters that are unrelated to
why the agency took an action in a particular case. See, e.g., Manker v. Spencer, No. 3:18-cv-
372 (CSH), 2019 WL 5846828, at *19 (D. Conn. Nov. 7, 2019) (rejecting a similar argument).
With that said, the Court has significant concerns about the ability of future discovery to
cure the current deficiencies in the proposed class. This more nuanced procedural right defined
by whether a Commanding Officer acted reasonably when confronted with a reported injury may
not be susceptible to class-wide resolution. Reasonableness will likely depend on the facts of
each Reservist’s case, as it will turn on whether her Commanding Officer ignored evidence in
35 her file suggesting that she was in fact injured on active duty. As a result, whether a Reservist
suffered a procedural injury will overlap with whether the Reservist suffered a substantive
violation by being denied her statutorily entitled benefits—a question Plaintiffs tacitly admit
turns on individual rather than class-wide facts. It is thus possible that no amount of discovery
can save Plaintiffs’ motion because deciding who falls within the class would “entail[] a fact-
specific inquiry to be made on a case-by-case basis.” Daskalea v. Wash. Humane Soc’y, 275
F.R.D. 346, 362–63 (D.D.C. 2011) (citation omitted). And even if Plaintiffs theoretically could
overcome this barrier, it is not obvious how Plaintiffs could conduct class discovery here given
that the materials they would seek to uncover are primarily medical records and personnel files
protected under the Privacy Act. See Laxalt v. McClatchy, 809 F.2d 885, 889 (D.C. Cir. 1987)
(noting the difficulties with discovery where the records sought are subject to the Privacy Act).
The Court need not resolve these vexing matters right now, however, as it will stay this
case pending resolution of the Plaintiffs’ remand. Issuing a stay here will provide the parties an
opportunity to observe how the Navy’s new SOP operates in practice and therefore will inform
Plaintiffs’ decision of whether to renew their motion for class certification. Additionally, the
stay will hopefully provide the parties with more time to hammer out an agreement that resolves
the remaining issues with the DES referral process, perhaps informed by the views expressed in
this opinion, without the need for further litigation.
36 IV. Conclusion
For these reasons, it is hereby
ORDERED that [Dkt. No. 28] Plaintiffs’ Motion for Class Certification and
Appointment of Class Counsel is DENIED without prejudice. It is further
ORDERED that [Dkt. No. 30] Defendants’ Motion for Voluntary Remand is
GRANTED. It is further
ORDERED that this case is STAYED pending resolution of the remand. It is further
ORDERED that the parties file a joint status report within 14 days of the resolution of
Plaintiffs’ cases on remand. The report shall include a discussion of the need for further
proceedings.
SO ORDERED.
CHRISTOPHER R. COOPER United States District Judge
Date: September 28, 2023
Related
Cite This Page — Counsel Stack
Beasley v. Del Toro, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beasley-v-del-toro-dcd-2023.