WE WON!!

April 23, 2004

WE WON!! THIS IS HUGE FOR ALL OF US!

The Court of Appeals for the Federal Circuit this morning (22-Apr-04)

posted its decision in my appeal of the Court of Federal Claims

dismissal for jurisdiction. I made certain that I had as strong a case

as possible on the merits, and my attorney Byron Holcomb's truly

world-class litigation skills guaranteed our victory. (Note: I talked

to Byron about the decision but did not discuss this email with him. My

interpretation here is subject to revision.) The full text of the

decision in FISHER v. UNITED STATES is available at the Court of Appeals

for the Federal Circuit website

http://www.fedcir.gov/opinions/02-5082.doc.

We began this odyssey in late 1999 with a petition to the Air Force

Board for Correction of Military Records for me to be granted my

retirement for physical disability. When we lost there (as expected),

we then appealed to the United States Court of Federal Claims. That

Court granted the government's motion to dismiss for lack of

jurisdiction. The case law the government cited in its motion is vague

and contradictory, but nevertheless applicable. (In the interim, I

requested a MEB and formal PEB from the Air Force Reserve Center in

Denver, on the basis of subsequent orthopedic surgery that made me unfit

for continued military service. Unexpectedly, it not only granted me my

discharge " from all obligations to the United States Air Force " for

physical disability, but extended its reasoning back to my having gotten

sick while on active duty. This completely destroyed the government's

contention that I was in fact fit for continued military service.) We

then petitioned the Court of Appeals for the Federal Circuit in an

effort to cut through the case law miasma that denied us access to the

Federal Courts. These issues were extremely difficult for that panel to

decide, and it exercised great care in drafting its decision. Initial

oral arguments were on 02-Dec-02, and the Court came back to us and the

government last October for briefs on three specific issues. Our

pleadings at all stages swamped the government's in their scholarship

and legal reasoning. The Court posted its decision this morning,

deciding in our favor on all issues.

This decision is significant for all of us in that it affirms the

ability and necessity of the Federal Courts to review decisions by

military boards and other military quasi-judicial entities. No longer

will Active Duty, Reserve, and Military Veterans be bounced out of

court, with the courts claiming they lack the authority to review

military board decisions. All of us who go before the Federal Courts in

the future will use this decision to get the correct and fair Federal

Court hearings to which we are all entitled.

We addressed three different but related areas of law that affect many

if not most military litigants. The essence of these is that the

Federal Courts have the jurisdiction to review the decisions of military

boards, and military board decision appeals are justiciable in the

Federal Courts. (There is a fine distinction between “jurisdiction” and

“justiciability”. “Jurisdiction” refers to the authority of a

particular court to hear a case with specific issues. “Justiciability”

refers to the ability of ANY court to hear a specific case because of

the nature of that case regardless of the issues presented. Military

board and other military decisions were for many years considered to be

essential military matters and therefore " nonjusticiable " , that is

inherently not subject to review in the Federal Courts.) FISHER v.

UNITED STATES reverses prior law and clarifies these issues.

Of specific interest to me as well as to other military physicians, this

opinion overturns the " presumption of fitness " for medical officers.

The DOD pulled that one out of thin air!* The DOD has no statutory

authority to deny medical officers the right to retirement for physical

disability, and now has no authority at all in that regard! This ruling

can extend to other _ad_hoc_ denials that by definition are not

supported by statute.

It also means that I get my full retirement pay back to 01-Jan-1997,

minus some VA benefits already paid to me. (We're going to push for as

much of my back pay as possible to be included under the newer

" concurrent receipt " legislation.) My attorney, J. Byron Holcomb, took

my litigation on contingency, and will receive his well-deserved share

of my back pay award.

For those of you with an urgent desire to read the essence of the

decision, I quote the summary:

‘‘This case, brought under the Court of Federal Claims’ Tucker Act

jurisdiction, raises three separate though related questions. First,

what must a plaintiff establish regarding the existence of a

money-mandating law source in order for the Court of Federal Claims to

have subject matter jurisdiction over the case under the Tucker Act?

Second, assuming the trial court takes jurisdiction and addresses the

merits of the cause, what are the consequences of a failure to prove the

elements of the cause of action, either as a matter of construction or

interpretation of the money-mandating source, or because the facts of

the case do not bring it within the alleged source? And third, even

assuming the cause of action is otherwise established, are there issues

that, because of their unique military implications, are nonjusticiable?

The plaintiff in this case, Dr. E. Fisher, a physician retired

from the Air Force, filed a complaint in the Court of Federal Claims

alleging that while he was on active duty, he should have been found

unfit for continued service because of a physical disability, and

therefore under 10 U.S.C. § 1201 should have been retired for

disability, with appropriate retirement pay. The trial court at the

behest of the Government dismissed Dr. Fisher’s claim for lack of

jurisdiction. The trial court indicated that, even if the court had

jurisdiction, the matter was exclusively one for military determination,

and thus nonjusticiable. Appeal was properly taken.

We conclude that Dr. Fisher’s well-pleaded complaint was sufficient to

give the Court of Federal Claims jurisdiction over the cause, and that,

in light of the statutes on which the cause was based and the facts

alleged, the court erred in dismissing the case. We further conclude

that under existing law and despite its military origins, the issue is

justiciable. The matter is remanded to the trial court for further

proceedings in accordance with this opinion.’’

* * *

I don't have legal standing to address anthrax-related disciplinary

decisions (since I didn’t receive any), so they are not specifically

within the scope of this decision. (I got " the shot " with neither my

knowledge nor consent as part of what could only have been some weird

and inept " medical experiment " . I didn't even have the opportunity to

refuse.) I am confident that all of us will now be able to use this

decision to get into the Federal Courts and have our cases reviewed,

including those for disciplinary actions. They can't argue either

jurisdiction or justiciability to lock us out any more!

The magic words were those at the very end of the decision:

REVERSED AND REMANDED

WE’LL WIN THE REST OF OUR FIGHTS FOR OUR RIGHTS, TOO!

Fisher, MD

LTC USAFR MC FS (Ret.)

VA 100% Disabled Veteran (Anthrax-Immunization Complications)

========================================================================

========

Indeed, I tremble for my country when I reflect that God is just,

and that his justice cannot sleep forever.

-- Jefferson

========================================================================

========

* I was tempted to say " pulled it out of its ass " , but this is a family

show.

========================================================================

========

April 23, 2004

WELL DONE, FRANK!!!! WEHW HEW!!!! MANY CONGRATULATIONS!!!!