`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`MALCOLM PIPES,
`Plaintiff-Appellant
`
`v.
`
`UNITED STATES,
`Defendant-Appellee
`______________________
`
`2019-1189
`______________________
`
`Appeal from the United States Court of Federal Claims
`in No. 1:15-cv-01163-SGB, Senior Judge Susan G. Braden.
`______________________
`
`Decided: November 15, 2019
`______________________
`
`CHERI L. CANNON, Tully Rinckey PLLC, Washington,
`DC, argued for plaintiff-appellant.
`
` ERIN MURDOCK-PARK, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, argued for defendant-appellee. Also repre-
`sented by JOSEPH H. HUNT, DEBORAH ANN BYNUM, ROBERT
`EDWARD KIRSCHMAN, JR.
` ______________________
`
`
`
`
`2
`
`PIPES v. UNITED STATES
`
`Before PROST, Chief Judge, CLEVENGER and MOORE,
`Circuit Judges.
`CLEVENGER, Circuit Judge.
`Captain Malcolm W. Pipes (“Pipes”) appeals from the
`final judgment of the United States Court of Federal
`Claims (“Claims Court”) granting Judgment on the Admin-
`istrative Record to the United States on his complaint.
`Pipes v. United States, 139 Fed. Cl. 538 (2018). For the
`reasons set forth below, we reverse the Claims Court’s final
`judgment and remand with instructions to remand the case
`to the Air Force Board for Correction of Military Records
`for further assessment consistent with this opinion.
`BACKGROUND
`I. Facts
`Pipes enlisted in the United States Air Force (“USAF”)
`in 1983. He served on active duty for seven years and in
`the United States Air Force Reserve for nine years. In
`2004, while Pipes was in the Reserve, the Air Force estab-
`lished stringent physical fitness standards, which sub-
`jected Reserve members to an annual scored fitness
`assessment. All members of the Air Force were notified
`that they must be physically fit to support the Air Force
`mission. J.A. at 91. Members who failed to satisfy physical
`fitness requirements would be subject to discharge. On Oc-
`tober 1, 2004, Pipes was informed by his Flight Com-
`mander that members who score at the marginal or poor
`fitness levels would be entered into the Self-paced Fitness
`Improvement Program (“SFIP”). On November 7, 2004,
`Pipes failed his fitness assessment which was conducted
`during a scheduled Unit Training Assembly (“UTA”). UTA
`is prescribed by the Secretary of the Air Force as a form of
`Inactive Duty Training (“IDT”). J.A. at 189. During that
`UTA, Pipes was formally enrolled in the SFIP and was
`given a written order from his Commander to “exercise at
`least five times per week,” performing the exercises
`
`
`
`PIPES v. UNITED STATES
`
`3
`
`specified by the SFIP, which included pushups, crunches,
`and a 1.5 mile run.
`
`Shortly before that first fitness assessment, Pipes be-
`gan receiving elevated blood pressure readings. Though
`Pipes continued his engagement in the SFIP, he informed
`his Commander that he was having blood pressure issues
`and trouble with the running portion of the SFIP. Pipes’
`Squadron Commander expressed concern about Pipes’ high
`blood pressure and was concerned a vigorous fitness pro-
`gram could lead to injury, stroke, and heart attack. How-
`ever, in August 2005, Pipes failed a second fitness
`assessment and was once again given orders to exercise
`five days per week to address his repeat fitness assessment
`failures.
`On January 6, 2006, due to his continuously elevated
`blood pressure readings, Pipes reported high blood pres-
`sure as a concern on his annual USAF physical screening.
`On February 5, 2006, Pipes was evaluated by Dr. Granger,
`a USAF medical doctor. Pipes produced medical records to
`Dr. Granger from his civilian physician showing elevated
`blood pressure as well as a USAF form completed by his
`civilian physician stating her concerns regarding Pipes’
`continued participation in the SFIP. Dr. Granger’s evalu-
`ation demonstrated that Pipes had elevated blood pres-
`sure, which ranged between 151/94 when sitting to 146/99
`when standing. Further, Dr. Granger rendered a diagnosis
`of hypertension and obesity.1 Unlike Pipes’ civilian physi-
`cian, Dr. Granger did not relay this health information to
`Pipes and instead communicated to him the need for
`
`1 Both Pipes’ Squadron Commander, John Row-
`lands, and Logistics Support Squadron Commander, John
`Snowman, assert in their affidavits that “Capt. Pipes was
`not obese, and his correct BMI was 28.9 as recorded in his
`physical fitness assessment records for 4 Feb 2006.” J.A.
`at 74; see also J.A. at 58.
`
`
`
`4
`
`PIPES v. UNITED STATES
`
`healthy living and for additional exercise. According to
`Pipes’ Commander, the standing policy of his wing unit was
`to bar any member observed with untreated hypertension
`from exercise in a SFIP. Under the existing command, the
`medical squadron was ordered to advise the Commander of
`any member who should so be barred. In Pipes’ case, his
`Commander concluded that the medical squadron failed to
`follow the standing orders. As a result, Pipes was not ex-
`cused from the SFIP he had been ordered to perform.
`After being cleared for continued participation in the
`SFIP by Dr. Granger, Pipes participated in a third fitness
`assessment that same day. However, Pipes became ill dur-
`ing the run portion and was unable to complete the assess-
`ment. Pipes participated in additional fitness assessments
`on May 7, 2006 and July 10, 2006, both of which he also
`failed. After the July 2006 fitness assessment, Pipes re-
`ported to Major Lara Rowlands, the unit fitness advisor,
`that he was running in accordance with the SFIP, but that
`he was not seeing any improvement and that he often felt
`ill after running. Nevertheless, the medical squadron
`again failed to remove Pipes from the SFIP.
`On September 3, 2006, Pipes became ill while running
`in accordance with the SFIP and experienced “a headache,
`difficulty breathing, dizziness, an impression of being over-
`heated, and a general feeling of malaise.” J.A. at 14 (inter-
`nal citation omitted). These symptoms continued into the
`night, requiring Pipes to go to the hospital around 2:00 AM
`on September 4, 2006. Pipes was diagnosed with a Cere-
`brovascular Accident, i.e., a stroke.
`On September 6, 2006, Pipes contacted his unit con-
`cerning the stroke. On December 5, 2006, without perform-
`ing a Line of Duty (“LOD”) determination, the USAF
`informed Pipes that “he was not eligible to receive disabil-
`ity benefits, because his stroke did not occur during inac-
`tive duty training.” J.A. at 14.
`
`
`
`PIPES v. UNITED STATES
`
`5
`
`On November 26, 2007, Pipes was determined by the
`USAF to be medically disqualified for continued military
`duty. However, in lieu of an administrative discharge, the
`USAF informed Pipes that he was eligible for retirement.
`On January 30, 2008, Pipes applied for transfer to the Re-
`tired Reserves in lieu of administrative discharge for phys-
`ical disqualification. On September 15, 2008, Pipes was
`assigned to the Retired Reserves, and the assignment was
`backdated, effective September 4, 2006. In October 2008,
`Pipes was informed that his retirement from the USAF was
`approved. However, Pipes, who was forty-seven years old
`at the time, would not be able to obtain the approved re-
`tirement benefits until he was sixty years old.
`On or about October 15, 2010, Pipes obtained a copy of
`his USAF medical records. Upon review of these records,
`Pipes learned for the first time that during his February 4,
`2006 medical clearance exam, the USAF Medical Examiner
`observed that his blood pressure was abnormally high, ren-
`dered a diagnosis of untreated hypertension, but nonethe-
`less cleared him for continued participation in the SFIP
`and his fitness assessments.
`On August 10, 2011, Pipes filed an Application For Cor-
`rection Of Military Record with the Air Force Board for
`Correction of Military Records (“AFBCMR”) requesting a
`LOD determination for disability retirement instead of his
`already-approved regular retirement. On June 4, 2012, the
`USAF Office of the Assistant Secretary for Military and Re-
`serve Affairs issued a Memorandum for the AFBCMR rec-
`ommending denial of the change in records to reflect Pipes
`was permanently medically retired. On July 5, 2012, Pipes
`responded to the June 4, 2012 Memorandum by providing
`supplemental documentation to the AFBCMR. On Febru-
`ary 28, 2013, the AFBCMR denied Pipes’ Application for
`Correction of Military Records, finding that he was not en-
`titled to disability retirement based on a determination
`that he did not demonstrate the existence of a material er-
`ror or injustice. On April 30, 2013, and again on July 3,
`
`
`
`6
`
`PIPES v. UNITED STATES
`
`2013, Pipes requested reconsideration by the AFBCMR to
`remedy the decision denying him the ability to be perma-
`nently and medically retired as of 2007. On August 11,
`2014, the USAF Office of the Assistant Secretary affirmed
`the AFBCMR’s denial.
`II. Procedural History
` On October 9, 2015, Pipes filed a Complaint in the
`Claims Court alleging that he was denied the disability re-
`tirement pay and benefits to which he was allegedly enti-
`tled under 10 U.S.C. § 1204.
`On May 8, 2017, the Government filed a Motion To Dis-
`miss, pursuant to RCFC 12(b)(1) and 12(b)(6), or, in the al-
`ternative, for Judgment On The Administrative Record,
`pursuant to RCFC 52. On June 8, 2017, Pipes filed a Cross-
`Motion For Judgment On The Administrative Record And
`Response to the Government’s May 8, 2017 Motion To Dis-
`miss.
`On September 29, 2017, the Claims Court issued, un-
`der seal, a Memorandum Opinion And Order denying the
`Government’s Motion To Dismiss and the Government’s
`Motion For Judgment On The Administrative Record, and
`granting Pipes Cross-Motion For Judgment On The Ad-
`ministrative Record. Pipes v. United States, 134 Fed. Cl.
`380, 389 (2017). The September 29, 2017 Memorandum
`Opinion And Order also vacated the February 28, 2013
`AFBCMR Decision denying Pipes’ Application For A Cor-
`rection Of Military Records and remanded the case to the
`AFBCMR for 120 days “to reconsider Plaintiff’s Application
`For A Correction Of Military Records in light of the new
`evidence presented by the parties,” pursuant to RCFC
`52.2(a), (b)(1)(B).2 See id. On October 13, 2017, the court
`
`
`2 This new evidence consisted of “supplemental dec-
`larations of relevant witnesses,” as well as Pipes’ “STRs
`
`
`
`PIPES v. UNITED STATES
`
`7
`
`issued the public version of the September 29, 2017 Mem-
`orandum Opinion And Order. See id.
`On February 1, 2018, an Air Force Reserve Com-
`mand/Judge Advocate (“AFRC/JA”) issued an Advisory
`Opinion to the AFBCMR recommending that the AFBCMR
`deny Pipes’ requested relief because it believed that Pipes’
`non-duty status rendered the order by his Commander to
`participate in the SFIP illegal.
`On May 3, 2018, the AFBCMR issued a reconsideration
`decision (“Reconsideration Decision”) concerning Pipes’ Ap-
`plication For Correction Of Military Records. In its Recon-
`sideration Decision, the AFBCMR noted that the Medical
`Advisor found “it plausible that the applicant’s participa-
`tion in vigorous training for his Fitness Assessment, dur-
`ing the 12-hour cycle of time between his alleged running
`activity and onset of stroke symptoms, contributed to the
`occurrence of a stroke on or about 4 Sep 06.” J.A. at 168–
`69. The AFBCMR opined that “adherence to SFIP could . .
`. be legally mandated when the applicant was in a duty sta-
`tus.” J.A. at 172. However, the AFBCMR agreed with the
`AFRC/JA that (1) Pipes was never lawfully ordered to par-
`ticipate in the SFIP, and (2) because he was never lawfully
`ordered to participate in the SFIP, Pipes was not in an IDT
`status when he did so participate. J.A. at 172. Accordingly,
`the Board denied Pipes’ requested relief.
`On September 11, 2018, the Claims Court, in agree-
`ment with the Reconsideration Decision, issued a Memo-
`randum Opinion and Final Order on Remand granting the
`Government’s Motion for Judgment on the Administrative
`Record and denying Pipes’ Cross-Motion for Judgment on
`the Administrative Record. The Claims Court’s decision
`
`
`and USAF medical records” provided by the VA. Pipes, 134
`Fed. Cl. at 405.
`
`
`
`8
`
`PIPES v. UNITED STATES
`
`became final on September 11, 2018. Pipes timely ap-
`pealed on November 5, 2018.
`STANDARD OF REVIEW
` We review a decision of the Claims Court granting or
`denying a motion for judgment on the administrative rec-
`ord de novo, and “apply the same standard of review[.]”
`Roth v. United States, 378 F.3d 1371, 1381 (Fed. Cir. 2004);
`see also Chambers v. United States, 417 F.3d 1218, 1227
`(Fed. Cir. 2005). Thus, this Court “will not disturb the de-
`cision of the corrections board unless it is arbitrary, capri-
`cious, contrary to law, or unsupported by substantial
`evidence.” Chambers, 417 F.3d at 1227 (citing Haselrig v.
`United States, 333 F.3d 1354, 1355 (Fed. Cir. 2003)).
`DISCUSSION
`Pipes’ October 9, 2015 Complaint alleged that he was
`denied the disability retirement pay and benefits to which
`he is and has been entitled under 10 U.S.C. § 1204, which
`provides in relevant part:
`Upon a determination by the Secretary concerned
`that a member of the armed forces . . . is unfit to
`perform the duties of his office, grade, rank, or rat-
`ing because of physical disability, the Secretary
`may retire the member with retired pay . . . , if the
`Secretary also determines that . . . the disability . . .
`is a result of an injury, illness, or disease incurred
`or aggravated in line of duty after September 23,
`1996 . . . while performing active duty or inactive-
`duty training[.]
`10 U.S.C. § 1204(2)(B)(i) (2000) (italics added).
`First, it is not disputed that Pipes is unfit to perform
`the duties of his office, grade, rank, or rating because of
`physical disability. Second, it is not disputed that the dis-
`ability plausibly resulted from an injury incurred or aggra-
`vated after September 23, 1996, while performing his
`
`
`
`PIPES v. UNITED STATES
`
`9
`
`SFIP. Finally, it is not disputed that Pipes’ injuries did not
`occur while in active duty. Thus, the only issue in dispute
`is whether Pipes’ disability resulted from an injury in-
`curred or aggravated while performing inactive-duty train-
`ing.
`
`Section 101 of Title 10 of the United States Code de-
`fines “inactive-duty training” as:
`(A) duty prescribed for Reserves by the Secretary
`concerned under section 206 of title 37 or any
`other provision of law; and
`(B) special additional duties authorized for Re-
`serves by an authority designated by the Sec-
`retary concerned and performed by them on a
`voluntary basis in connection with the pre-
`scribed training or maintenance activities of
`the units to which they are assigned.
`10 U.S.C. § 101(d)(7). Pipes argues that his participation
`in the SFIP constituted “inactive-duty training” under 10
`U.S.C. § 101(d)(7)(B).
`As noted above, the AFBCMR agreed with the
`AFRC/JA that Pipes’ participation in the SFIP did not con-
`stitute “inactive-duty training” because Pipes was never
`lawfully ordered to participate in the SFIP. J.A. at 172.
`Specifically, the AFBCMR, relying on AFI 10-248 (AFRC
`Sup1_I, May 2004), found that any order by Pipes’ Com-
`mander placing him in the SFIP was unlawful due to Pipes’
`supposed “non-duty status.”3 As the AFBCMR noted, how-
`ever, Pipes’ adherence to the SFIP could have been legally
`
`
`3 As the AFRC/JA noted in its Advisory Opinion,
`upon which the AFBCMR relies, an “order requir[ing] par-
`ticipation while in a non-duty status” is “illegal” because
`“reservists are not subject to the Uniform Code of Military
`Justice when not in status.” J.A. at 162.
`
`
`
`10
`
`PIPES v. UNITED STATES
`
`mandated if Pipes was in a duty status, making him sub-
`ject to the Uniform Code of Military Justice (“UCMJ”). J.A.
`at 172.
`AFI 10-248 (AFRC Sup1_I, May 2004) states that for
`each Unit Reservist, Individual Mobilization Augmentee,
`or Participating Individual Ready Reservist member at a
`marginal or poor fitness level will be enrolled in a SFIP by
`their commander. See AFI 10-248 (2004 Supp.) at 30.
`Members are entered into the SFIP by letter “during the
`same UTA/IDT in which the member completed the fitness
`assessment.” See id. During that UTA, which is a form of
`inactive duty training, members are in a duty status. Id.
`at 28. Orders issued to reserve members during UTAs are
`valid orders.
`According to Pipes’ Commander, “Capt. Pipes failed a
`fitness test on 7 Nov. 2004. He was formally enrolled in
`the Self-Paced Fitness Program (SFIP) the same day.” J.A.
`at 56. Thus, on the record before us, it is clear that: (1)
`Pipes went into a duty status during the Nov. 7, 2004
`UTA/IDT in which he completed his fitness assessment; (2)
`because he was in a duty status, Pipes was subject to the
`UCMJ, see 10 U.S.C. § 802(a)(3)(A)(i); and (3) while he was
`in a duty status and subject to the UCMJ, Pipes was or-
`dered, in writing, by his Commander to enroll in a person-
`alized SFIP requiring him to exercise at least five times per
`week. Pipes’ order to engage in the SFIP was renewed in
`August 2005, if not in each of the subsequent UTAs in
`which he failed his fitness assessments. As the AFBCMR
`noted, “adherence to SFIP could . . . be legally mandated
`when the applicant was in a duty status.” J.A. at 172. As
`Pipes was in a duty status, the order from his Commanding
`
`
`
`PIPES v. UNITED STATES
`
`11
`
`Officer to participate in the SFIP was not unlawful for that
`reason.4
`Thus, we hold that, to the extent their analysis turned
`on Pipes’ duty status at the time of his orders, both the
`AFBCMR and the Claims Court erred in concluding that
`Pipes was not lawfully ordered to perform the SFIP de-
`signed for him. The consequence of that error is the ab-
`sence of any consideration of Pipes’ request for disability
`retirement in the light of the fact that he was ordered to
`perform exercises that caused his stroke and hence his re-
`tirement. Thus, the argument that Pipes was in a non-duty
`status when ordered to perform his SFIP is no longer a
`valid rationale for denying his disability retirement. Our
`holding is limited to a determination that Pipes was or-
`dered to engage in the SFIP when in a duty status.
`We therefore reverse the decision of the Claims Court,
`agreeing with the AFBCMR, that Pipes is not entitled to a
`disability retirement under 10 U.S.C. § 1204(2)(B)(i) (2000)
`due to his non-duty status at the time he was ordered to
`participate in the SFIP. The case is remanded with in-
`structions to remand the case to the AFBCMR for further
`
`
`4 As defined by the Air Force, SFIP is intended to be
`a “remedial program recommended for traditional Reserv-
`ists,” such as Pipes, with participation in SFIP “encour-
`aged” and generally “not mandated.” AFI 10-248 (AFRC
`Sup1_I, May 2004) at 46; J.A. at 221. At the time of Pipes’
`stroke, the AFI made clear that Reservists could partici-
`pate in SFIP “on or off duty.” AFI 10-248 (AFRC Sup1_I,
`May 2004) at 84. But in this case, for reasons not explained
`by the Air Force, the apparently sui generis SFIP designed
`for Pipes to perform when in civilian status went beyond
`recommendation and encouragement, being mandated by
`lawful orders issued during times when Pipes was in inac-
`tive duty status.
`
`
`
`12
`
`PIPES v. UNITED STATES
`
`assessment of Pipes’ request for correction of his military
`records.
`
`REVERSED AND REMANDED
`COSTS
`The parties shall bear their own costs.
`
`