Sieben v. United States

108 Fed. Cl. 1, 2012 U.S. Claims LEXIS 1588, 2012 WL 6554688
CourtUnited States Court of Federal Claims
DecidedDecember 13, 2012
DocketNo. 11-878C
StatusPublished
Cited by6 cases

This text of 108 Fed. Cl. 1 (Sieben 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
Sieben v. United States, 108 Fed. Cl. 1, 2012 U.S. Claims LEXIS 1588, 2012 WL 6554688 (uscfc 2012).

Opinion

Military Pay; 10 U.S.C. § 1201; Motion to Supplement the Administrative Record

OPINION AND ORDER

EDWARD J. DAMICH, Judge.

Pending before the Court is a motion filed by Plaintiff, Mary Sieben (“Sieben”), pro se,1 requesting leave to supplement the administrative record (“AR”) in this military pay case. Sieben’s motion was filed on September 19, 2012. The Government responded on October 9,2012. For the reasons that follow, Sieben’s motion is GRANTED, in part, and DENIED, in part.

I. Background

a. Allegations

This is a military disability and retirement pay and benefits case brought by Sieben against the United States. Although a full recitation of the facts is not necessary at this juncture, a brief summary of the facts alleged in this case will shed some light on the pending motion.

Sieben’s military career spans more than 27 years in the Air Force, Air Force Reserve, and Air National Guard. Toward the end of this career, in late 2004, she was assigned to Baghdad with the Army. Sieben alleges that, while in Iraq, she sustained numerous physical and mental or emotional injuries. These injuries led to Sieben being examined by the Physical Examination Board (“PEB”),2 who placed her on the temporary disability retirement list (“TDRL”) on March 16, 2006 with an initial rating of 100% disabled.3 The PEB’s findings were directed towards Sie-ben’s back issues, and it reached no conclusions as to any alleged mental condition.

The nature of the TDRL is such that Sieben’s condition was reviewed on occasion. In May of 2008, she underwent a TDRL examination and in July of that year, she was again given a rating of 100% disabled. She underwent another TDRL examination in late 2009, and in January of 2010, she was given a 10% disability rating based on her chronic lower back pain and spinal issues. The PEB also recommended that Sieben be separated from service because her back condition left her unfit for continued military service.

Sieben challenged the PEB’s findings with the Secretary of the Air Force (“SAF”). In reaching its conclusion, the SAF considered both Sieben’s physical and mental conditions. The SAF rejected modification of Sieben’s disability rating based on her alleged mental condition, finding that the evidence showed that Sieben’s condition was controlled with “good results” by medication and that there was no evidence that this condition was unfitting at the time Sieben was placed on the TDRL. See Department of Defense Instruction (“DoDI”) 1332.38 ¶ E3.P6.2.4 (requiring [5]*5a showing that a condition diagnosed while on the TDRL either be unfitting at the time the member was placed on the TDRL, or be unfitting and caused by the condition which led to TDRL placement). The SAF did conclude, however, that Sieben’s back condition merited a rating of 20% instead of the 10% initially assigned by the PEB. Still, the back condition limited Sieben’s deployability, rendering her unfit for continued military service. The SA F therefore concurred with the PEB’s finding that separation was appropriate.

In her single-count Complaint, Sieben alleges that the Air Force acted arbitrarily or in bad faith when it concluded that she was only entitled to a 20% disability rating. Sie-ben claims that she was entitled to a higher rating based on both her physical and mental conditions. Sieben asserts that the Air Force’s assignment of a 20% rating has deprived her of both retirement pay and benefits to which she is entitled.

b. Procedural History

The Government, in response to Sieben’s Complaint, filed a motion for partial dismissal and for judgment upon the A R. The Government’s argument for partial dismissal was directed at what the Government read as a wrongful separation claim, while its arguments for judgment upon the AR would be fully dispositive, if accepted.

In her response to the Government’s motion, Sieben raised a number of arguments which are irrelevant to the pending motion. Two points are pertinent here, however. First, Sieben denied any intent to raise a wrongful separation claim; consequently, the Court denied-as-moot the Government’s motion for partial dismissal, leaving only the Government’s motion for judgment on the AR pending.

Second, Sieben asserted that the AR filed with the Court was incomplete, and that the missing documents were material to her case. In light of her representations, the Court stayed briefing on the cross-motions for judgment on the A R, and instead ordered that, by September 24, 2012, Sieben should file either a motion to supplement the AR or a notice stating that such motion would not be filed. Prior to the Court’s stay on briefing, Sieben filed her cross-motion for judgment on the A R.

In accord with the Court’s order, Sieben filed the instant motion on September 19, 2012. In her motion, she initially requests that the Court strike Exhibits 1-12 to her cross-motion for judgment on the AR. Those exhibits are identical to exhibits 1-12 attached to the pending motion, save that the exhibits attached to the instant motion are properly redacted while the cross-motion exhibits are not. The Court will grant Sieben’s motion to strike without further analysis.

Sieben’s motion also requests leave to supplement the AR with thirteen exhibits — the first twelve of which match the twelve exhibits just stricken, except for redactions, and the thirteenth of which was first produced with the instant motion. The content of each exhibit is discussed below.

II. Legal Standard

a. Review of a Military Pay Decision

Although the Court is not in a position to decide the merits of Sieben’s ease at this point in time, it is useful to review the standards she must ultimately satisfy. As this Court has recognized before, in its review of the Air Force’s findings, it does not sit as a “super correction board,” but it is instead required to give substantial deference to those findings. See Chapman v. United States, 92 Fed.Cl. 570, 577 (2010) (citing Skinner v. United States, 219 Ct.Cl. 322, 594 F.2d 824, 830 (1979); Van Cleave v. United States, 70 Fed.Cl. 674, 678 (2006)). The Court is not called upon to reweigh the evidence, but instead to determine “whether the conclusion being reviewed is supported by substantial evidence.” Heisig v. United States, 719 F.2d 1153, 1157 (Fed.Cir.1983) (emphasis in original).

The burden is on the plaintiff to show that the military’s decision is “arbitrary, capricious, contrary to law, or unsupported by substantial evidence.” Barnick v. United States, 591 F.3d 1372, 1377 (Fed.Cir.2010). In order to prevail, a plaintiff must overcome “the strong, but rebuttable, presumption that administrators of the military, [6]*6like other public officers, discharge their duties correctly, lawfully, and in good faith.” Doe v. United States, 132 F.3d 1430, 1434 (Fed.Cir.1997).

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Cite This Page — Counsel Stack

Bluebook (online)
108 Fed. Cl. 1, 2012 U.S. Claims LEXIS 1588, 2012 WL 6554688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sieben-v-united-states-uscfc-2012.