As we’ve been reporting, three cases being argued at the Federal Circuit in February attracted amicus briefs. The third of these cases is Bee v. United States. In this case, William Bee appeals the denial of his request to have his military records reflect medical retirement rather than voluntary separation. This is our argument preview.
In his opening brief, Bee argues the Board for Correction of Naval Records “erred by refusing to give ‘liberal consideration'” to his petition and the Court of Federal Claims “erred by upholding the Board’s decision.” According to Bee, the governing statute requires the Board apply liberal consideration to his petition because it seeks “discharge relief related to combat-induced” post-traumatic stress disorder or traumatic brain injury. He says this requirement to apply liberal consideration is also “independently mandated by binding [Department of Defense] guidance.” Bee argues the lower court’s conclusion that the “Board had in fact applied liberal consideration” cannot “withstand scrutiny.” Liberal consideration, he says, “requires implementing specific principles” the Board did not apply. In fact, Bee argues, the Board “relied on reasoning that is directly contrary to liberal consideration.” Bee asserts the Board erred when it “failed to consider mandatory criteria for the fitness determination” that would have compelled a finding by the Board that “it is undisputed that [Bee’s] PTSD and TBI render him unable to engage in combat.” Finally, Bee argues, the Board’s decision was “arbitrary and capricious” because it “improperly dismissed” Bee’s “90% combined disability rating,” which, Bee contends is relevant to fitness determinations.
In its response brief, the United States argues Bee’s claim is “barred by the statute of limitations” because Bee “certainly had knowledge of the facts of his claim” before he “requested separation.” According to the government, courts have repeatedly held that such circumstances constitute “statute of limitations triggers, and a claimant does not need to “‘underst[and] the full extent’ of his disability” before time accrues on a claim. The United States further contends the Board properly applied the Department of Defense’s guidance by examining whether the “medical disease or condition underlying the diagnosis actually interferes significantly” with the claimant’s “ability to carry out” his or her duties. In the government’s view, nothing “in this record” suggests Bee “did not have the capability to perform” skills required of his role. As a result, the government says, the record does not compel a finding of medical retirement.
In his reply brief, Bee argues the government “does not meaningfully defend the decision” of the Board because it “sidesteps key legal errors and relies on reasoning” already rejected by the Federal Circuit. Bee reiterates the Board was required to apply liberal consideration, emphasizing there is “no serious argument that the Board actually applied liberal consideration.” He further suggests the Board misapplied the fitness standard by assessing fitness based on a narrow instructor role, even though it is “undisputed that Mr.s Bee’s disabilities rendered him unable to perform . . . combat-related duties” required of his new role as an Infantry Unit Leader. Bee also contends the Board “ignored highly relevant evidence” to evaluate his disability rating, and suggests instead the Board conducted an “arbitrary and selective review of facts.”
Two amicus briefs were filed in this case in support of Bee and reversal. The first amicus brief was filed by four veterans. In it, they argue the Court of Federal Claims “equated ‘combat’ with ‘deployability’.” According to these veterans, that is an “oversimplified interpretation that fails to consider the intensity and countless forms of combat training.” That training, they argue, moreover occurs “irrespective of deployment.” They warn if the lower court’s holding is “not corrected,” this “fundamental error” will “dramatically reduce [service members’] rights.”
The second amicus brief was filed by Protect Our Defenders and Service Women’s Action Network. In it, these groups argue the “military has a long history of improperly discharging service members.” They say that, by doing so, the military denies them the “benefits they so desperately need[].” They argue the lower court erred when it “sidestepped entirely the question of the application of liberal consideration” when evaluating Bee’s fitness. If the decision is upheld, they argue, the decision will undermine “the primary avenue for redress” for survivors of military trauma who are “seeking medical benefits earned in service to their country.”
Oral argument in this case is scheduled to be heard on Friday, February 6 at 10:00 a.m. in Courtroom 402. We will keep track of the case and report on any developments.