[00:00:00] Speaker 02:
We have four argued cases this morning.

[00:00:01] Speaker 02:
The first is number 18-1386, Nelson versus United States.

[00:00:07] Speaker 02:
Mr. Crawford.

[00:00:24] Speaker 01:
Good morning, Your Honors.

[00:00:26] Speaker 01:
Again, my name is Mark Crawford.

[00:00:28] Speaker 01:
I represent the appellant in this matter, Huda Melson, in the matter of Huda Melson versus the United States of America.

[00:00:38] Speaker 02:
So, as I understand your briefs now, the only thing we're talking about is the claim for disability retirement, is that correct?

[00:00:46] Speaker 01:
That is correct, Your Honor.

[00:00:47] Speaker 02:
There's mention in the briefs of correction board proceedings, and I guess there appear to have been two of them, if I understand correctly, one in the health services and one in the army, and the health services corrections board decision is in the appendix.

[00:01:08] Speaker 02:
But is there some decision by an army board for correction of military records?

[00:01:13] Speaker 01:
Yes, Your Honor, there is a decision by the Army Board.

[00:01:18] Speaker 01:
Judge, with respect to when the motion to dismiss was decided by the lower court, it never addressed the count one of the complaint, which addressed the application that was denied by the Army Board.

[00:01:33] Speaker 02:
What was brought before the Army Board?

[00:01:36] Speaker 01:
the disability claim with respect to Mr. Nelson being discharged and his disability claim not being adjudicated appropriately by the Army Board of Corrections.

[00:01:48] Speaker 01:
And when did that happen?

[00:01:49] Speaker 01:
That happened in January of 2016, two months preceding, two months before the decision by the public health decision judge.

[00:02:01] Speaker 01:
And again, the motion to dismiss only addressed the second count.

[00:02:05] Speaker 01:
And the lower court's decision only addressed the second count, never addressed the first count.

[00:02:13] Speaker 01:
Even though it was mentioned as an issue, the court never decided that issue based on the decision and based on the government's motion to dismiss.

[00:02:22] Speaker 01:
So the only issue that I addressed with respect to my response to the motion to dismiss was the count two, which was addressed by the court.

[00:02:32] Speaker 02:
Well, is Count 1 a claim for disability retirement benefits?

[00:02:37] Speaker 02:
Yes, it was.

[00:02:39] Speaker 01:
Could you show us where it says that?

[00:02:46] Speaker 01:
The complaint in Appendix 3

[00:02:53] Speaker 01:
Even in the lower court's decision, in Count 1 of the complaint, Mr. Nelson alleges that ABCMR failed to find that Mr. Nelson suffered from a medical condition which was unequivocally due to aggravation approximately caused by basic combat training and additional ROTC training.

[00:03:14] Speaker 01:
which qualifies him for medical separation with severance pay.

[00:03:17] Speaker 01:
C, Complaint 66, but the complaint does not otherwise mention any combat experience or OOTC training in support of such a claim.

[00:03:24] Speaker 01:
And then the court goes on to mention in Count 2, Mr. Nelson requests the court to conduct de novo reviews of all ABCMR and BCPHSCCR decisions, as well as amend the documented reason for Mr. Nelson's discharge.

[00:03:39] Speaker 01:
And then the court goes on to address Count 2 only.

[00:03:43] Speaker 02:
Well, I'm not sure that I'd see in paragraph 66 a claim for retirement benefits.

[00:03:50] Speaker 02:
It seems to talk about severance pay.

[00:03:53] Speaker 02:
This is on page 19 of the appendix.

[00:03:57] Speaker 01:
I was reading from the court decision, Judge.

[00:03:59] Speaker 01:
Let me go to the complaint.

[00:04:19] Speaker 01:
Number one, Judge.

[00:04:48] Speaker 02:
Appendix one?

[00:04:50] Speaker 01:
Appendix number 11.

[00:04:52] Speaker 01:
11?

[00:04:56] Speaker 01:
Which is the complaint.

[00:04:59] Speaker 02:
Yeah.

[00:05:00] Speaker 02:
So where does this stated claim for disability return?

[00:05:17] Speaker 01:
The first count mentions a disability claim.

[00:05:24] Speaker 01:
Count one.

[00:05:35] Speaker 00:
Paragraph 66, which is on page 19, which I think Judge Dyke called your attention to, refers to severance pay.

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And then toward the end of count one,

[00:05:47] Speaker 00:
The last paragraph, paragraph 93, refers to educational benefits.

[00:05:53] Speaker 00:
That's on appendix 22.

[00:05:59] Speaker 00:
Where are disability benefits referred to?

[00:06:10] Speaker 01:
In appendix 24, where we talk about the relief,

[00:06:17] Speaker 01:
It asks for the first, A, amend the existing authority and reason, separation for physical disability discharge with severance pay, effective May 12, 2007.

[00:06:33] Speaker 02:
Well, is the reference to severance pay, is what you're saying that that's a reference to disability benefits?

[00:06:40] Speaker 01:
Disability benefits inclusive of severance pay, physical disability discharge with severance pay.

[00:06:47] Speaker 02:
Because that's what the application was for.

[00:06:49] Speaker 02:
Was the Army Corrections Board decision before the court?

[00:06:55] Speaker 02:
I'm sorry, Judge.

[00:06:56] Speaker 02:
Was the Army Corrections Board decision part of the record here?

[00:07:01] Speaker 01:
No, Judge, it wasn't part of the record.

[00:07:03] Speaker 01:
It was a part of the complaint before the lower court.

[00:07:09] Speaker 01:
But the actual decision was not attached to the complaint.

[00:07:16] Speaker 02:
Well, I think it'd be helpful if you supplied a copy of the decision to us.

[00:07:32] Speaker 02:
Go ahead.

[00:07:36] Speaker 01:
So, Judge, with respect to, again, Mr. Nelson, after he was discharged from the Army Reserve, then started working for the Public Health Department.

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At some point, he went out on several occasions based on being sick.

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He was out for sometimes a month, sometimes days, sometimes weeks.

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And as a part of coming, when he came back to the service, Miss Baker, the person that

[00:08:06] Speaker 01:
was in charge of me at that time, kept harassing him and created a hostile work environment relative to him being out and having to come in late based on the fact that he was constantly ill as a result of his service-connected disability.

[00:08:22] Speaker 01:
So at some point he filed a complaint with the EEOC where he claimed that he was being discriminated against based on his disability.

[00:08:30] Speaker 01:
That was then kicked from the EEOC to the IG's office and kept being bounced around with respect to where the claim belonged.

[00:08:39] Speaker 01:
At some point he was then directed to file a claim with the Army Board of Corrections and also to file a claim with the public health, which he did, Your Honor.

[00:08:49] Speaker 02:
Is there an active EEOC case right now?

[00:08:54] Speaker 01:
No, there is not.

[00:08:57] Speaker 01:
At some point, as an aside, Your Honor, with respect to his disability, he certainly

[00:09:04] Speaker 01:
was found 100% disabled by the VA sometime in 2017.

[00:09:11] Speaker 01:
And also, it was also found to be service connected disabled and related back to the date of one day after its termination by the VA, even though the Army Board of Corrections subsequently denied that benefit.

[00:09:40] Speaker 01:
So with respect to the application to the public health, Your Honour, while that application did not specifically say that we're requesting relief based on his disability, it's our position that the disability was inextricably intertwined with the application because the application talked about his disability

[00:10:01] Speaker 01:
is the treatment based on his disability.

[00:10:04] Speaker 01:
And it also talked about him being discriminated based on his disability, even though that was not the ultimate relief that was actually asked for there.

[00:10:14] Speaker 01:
So it's our position that we did, in fact, that that should have been addressed, because that's one of the relief that the board could have provided in terms of other relief that the court may have deemed necessary as is related, as we talked about in our final request for relief.

[00:10:33] Speaker 02:
Do you want to save the rest of your time for rebuttal?

[00:10:36] Speaker 01:
Yes, Judge.

[00:10:41] Speaker 01:
I'm sorry, Doctor.

[00:10:43] Speaker 02:
Did you want to save the rest of your time for rebuttal?

[00:10:45] Speaker 01:
Yes, I do, Judge.

[00:10:46] Speaker 01:
Thank you.

[00:10:54] Speaker 02:
Mr. Hellman?

[00:11:09] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:11:11] Speaker 02:
The claim that Mr. Nelson brings here is a claim... What happened before the Army Corrections Board?

[00:11:18] Speaker 02:
Did he make a claim for disability benefits before the Army Corrections Board?

[00:11:22] Speaker 03:
So he didn't allege that he did, Your Honor.

[00:11:26] Speaker 03:
There's been several Army Board decisions.

[00:11:28] Speaker 03:
The one that Mr. Nelson's counsel cited is a reconsideration decision from 2016.

[00:11:33] Speaker 03:
There's been several ones before that.

[00:11:35] Speaker 03:
He did make a disability claim, or I think, as you were discussing, a claim for disability retirement with severance pay.

[00:11:47] Speaker 03:
record of the claims before the Army Board of Corrections is not before this court because this was on a motion to dismiss and that the burden is on plaintiffs to establish jurisdiction.

[00:11:58] Speaker 03:
Mr. Nelson has not.

[00:12:00] Speaker 02:
So in other words, he has exhausted a claim for retirement benefits before the Army Corrections Board.

[00:12:08] Speaker 03:
He's made claims, I believe.

[00:12:09] Speaker 03:
He has not.

[00:12:11] Speaker 03:
And they were rejected by the Corrections Board.

[00:12:14] Speaker 03:
They were, but he has not established that his

[00:12:17] Speaker 03:
that going to the Court of Federal Claims to seek further review of those claims is timely.

[00:12:33] Speaker 03:
That is not the first decision that made that determination.

[00:12:37] Speaker 03:
That is a reconsideration decision.

[00:12:40] Speaker 03:
There have been several decisions before that.

[00:12:42] Speaker 03:
There's one in 2014 and the record, well, and the correction board proceedings indicate that there have been cases in 2009 and 2010 where he's made applications to the ABCMR.

[00:12:54] Speaker 03:
he didn't establish at the Court of Federal Claims that his claim for disability with respect to the separation from the Army is timely.

[00:13:04] Speaker 03:
And based on his briefs, he's focusing on his Public Health Service Corps separation.

[00:13:10] Speaker 02:
No, but let's just stick with the Army.

[00:13:12] Speaker 02:
What is your view as to when his disability claim was first projected by an Army Corrections Board?

[00:13:21] Speaker 03:
He has not established that the first time that was rejected was in 2016.

[00:13:26] Speaker 03:
That's not the case.

[00:13:27] Speaker 03:
And even if you look at his... So when was it?

[00:13:31] Speaker 03:
We don't have the full documents from below because he's brought claims not just to the Army Board of Corrections.

[00:13:42] Speaker 03:
I think he had claims before the California National Guard Board as well.

[00:13:49] Speaker 03:
I think the first instance of his claims goes back to 2009 and 2010s, which would make them untimely.

[00:13:56] Speaker 02:
2010?

[00:13:59] Speaker 03:
Because his complaint was filed in April of 2017.

[00:14:01] Speaker 03:
So if they were rejected any time before April of 2011, then he would be untimely, and he is not established.

[00:14:09] Speaker 03:
Yeah, but were they?

[00:14:10] Speaker 02:
Were they rejected before then?

[00:14:14] Speaker 03:
You don't know.

[00:14:15] Speaker 03:
We don't know exactly when the first rejection was.

[00:14:19] Speaker 03:
And also under Chambers, Your Honor, if he was on, you know, if he had notice of his disability, the argument can be made that he should have brought his claim at his separation.

[00:14:29] Speaker 03:
And he certainly

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He had been diagnosed.

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This is not a latent discovery of medical problems.

[00:14:35] Speaker 03:
He'd been diagnosed.

[00:14:36] Speaker 03:
Well, Chambers says it's time.

[00:14:38] Speaker 02:
There was a dissent.

[00:14:40] Speaker 02:
There was, Your Honor, yes.

[00:14:41] Speaker 02:
By actually me.

[00:14:43] Speaker 02:
But Chambers holds that the statute of limitations doesn't run until the corrections board decides the issue or refuses to address it.

[00:14:53] Speaker 03:
In the typical case, yes, although the real case, I'm not sure how you pronounce it, along with chambers can be read that there is an exception when a service member has sufficient actual constructive knowledge of his disability and hence of his entitlement to disability retirement pay.

[00:15:13] Speaker 03:
at the time of discharge.

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And it's quite possible that Mr. Melson had that knowledge here because he had been having medical issues during his time with the Army and with the National Guard.

[00:15:24] Speaker 03:
At least the medical issues that he was complaining about with respect to his Army separation.

[00:15:29] Speaker 03:
Again, it's unclear as to whether that's what he's challenging here.

[00:15:32] Speaker 03:
He appears to, and even judging from an argument just now, it appears that he's challenging his separation from the public health service based on

[00:15:41] Speaker 03:
medical issues that he experienced during that time that were apparently exacerbated by this hostile work environment.

[00:15:51] Speaker 02:
claiming hostile work environment, it's a disability retirement claim, which apparently has never been submitted to a public health service corrections board.

[00:16:02] Speaker 02:
So there's no right claim with respect to that.

[00:16:07] Speaker 02:
But even according to you, it was presented to an army corrections board at some point.

[00:16:12] Speaker 03:
Well, I think there are two disability claims that he's making.

[00:16:21] Speaker 03:
he may be trying to make, and it's unclear which one he's still pursuing.

[00:16:32] Speaker 03:
the public health service claim, and he didn't present that to the agency, so he may still be able to pursue that because under chambers he's required to exhaust that.

[00:16:42] Speaker 03:
With respect to the army service, the burden's on plaintiffs to establish jurisdiction and to show that his claim is timely.

[00:16:50] Speaker 03:
He failed to do that below.

[00:16:51] Speaker 03:
That's why the record is so limited because we moved to dismiss.

[00:16:56] Speaker 03:
He provided the public health service correction board decision.

[00:17:00] Speaker 03:
He did not provide

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his Army Board of Corrections decisions to establish that he's timely.

[00:17:15] Speaker 03:
And again, if you look to Mr. Nelson's brief on appeal, he seems to limit his claim to his Public Health Service Commission, or discharge, if you look at the brief, in a page

[00:17:30] Speaker 03:
14 and 16, it expressly states that the statutory time period relevant here accrued at the time the Department of Health and Human Services rendered its written decision.

[00:17:42] Speaker 02:
Do you read paragraph 66 of his complaint on A-19 as talking about disability and retirement?

[00:17:55] Speaker 03:
Well, it talks about medical separation with severance pay.

[00:18:04] Speaker 03:
He hasn't established that he had claimed disability or that he had a first competent board determine his disability within six years of filing the claim.

[00:18:15] Speaker 03:
I think paragraph 66 can be read either way.

[00:18:20] Speaker 03:
It talks about medical separation with severance pay.

[00:18:26] Speaker 02:
It doesn't say disability.

[00:18:27] Speaker 02:
It could be read as claiming disability benefits.

[00:18:37] Speaker 03:
I think that is one interpretation, but Mr. Melson was represented at the Court of Claims.

[00:18:42] Speaker 03:
This is not a case where he was pro se, and we sort of interpreted his pleadings in a more charitable fashion, because he's unrepresented.

[00:18:50] Speaker 03:
He was represented, and he had a chance to make the argument and to amend his complaint when we made the motion to dismiss.

[00:18:56] Speaker 03:
He didn't do that.

[00:19:01] Speaker 03:
But he still hasn't established that his first competent board was within the statutory period.

[00:19:07] Speaker 03:
He said that there's a board in 2016 in January, but that is a reconsideration board.

[00:19:11] Speaker 03:
And there have been several boards prior to that.

[00:19:14] Speaker 03:
So if the first time that he got a first competent board was prior to April of 2017, then even his disability claim is barred under chambers.

[00:19:26] Speaker 03:
This court has no further questions.

[00:19:28] Speaker 03:
I'm happy to yield the rest of my time and ask that you affirm the judgment below.

[00:19:33] Speaker 02:
Okay, thank you.

[00:19:55] Speaker 01:
Judge, again, it is our position that Mr. Nelson was required to exhaust all his administrative remedies.

[00:20:07] Speaker 01:
His appeal, his request to the Board of Military Correction was done in January of 2016.

[00:20:13] Speaker 02:
So certainly, again, the... There was no rejection of his disability claim before then by the Army Corrections Board?

[00:20:21] Speaker 01:
Judge, I believe there may have been a bit of rejection, Judge, but what Mr. Nelson did was he refiled.

[00:20:28] Speaker 01:
And so at some point, I'm not sure if the, while counsel may say it's a reconsideration, Judge, at this point, I'm not sure if it was an actual reconsideration or if that is actually where the, when the claim was actually made.

[00:20:40] Speaker 01:
My understanding from my conversation and reviewing it,

[00:20:43] Speaker 01:
is that it was a decision.

[00:20:45] Speaker 01:
I'm not sure where the reconsideration portion is coming in.

[00:20:49] Speaker 01:
Again, with respect to the motion to dismiss below, count one was never addressed.

[00:20:56] Speaker 01:
Council only addressed count two, and the court only ruled on count two.

[00:21:01] Speaker 01:
Never addressed count one in terms of whether it was timely, whether there was a jurisdiction.

[00:21:06] Speaker 01:
It simply referenced count two.

[00:21:10] Speaker 01:
So based on that, Judge, if there are no further questions, I would certainly yield my time at this point and ask that the court make a decision and or remand it back to the Federal Court of Claims to make a decision with respect to one of the complaints.

[00:21:24] Speaker 02:
Okay.

[00:21:24] Speaker 02:
Thank you.

[00:21:24] Speaker 01:
Thank both counsels.