Traumatized Vet Gets One More Shot at Army

(CN) – A veteran paratrooper with PTSD from a jump in which his primary chute didn’t open must exhaust his administrative remedies before he can sue the Army, a federal judge ruled Friday.
     Thomas Adamski enlisted in the Army in 1970 and trained as a paratrooper, but was granted early separation after a “near-death” training jump in which his primary chute failed to open and his auxiliary chute opened only at “the very last minute.”
     Adamski acknowledges that he “omitted reporting” the eye twitches and nervous tics he developed after the jump, and told the Army he had to get back home to help on the farm when he requested voluntary separation in March 1973.
     The Army granted his request and released him in June that year, U.S. District Judge Ketanji Brown Jackson wrote in her July 31 memorandum and order in District of Columbia Court.
     Adamski says he was later diagnosed with post-traumatic stress disorder, which has debilitated him and led to long stretches of hospitalization and medical treatment.
     In 1988, he asked the Army Board of Correction of Military Records (ABCMR) to change his separation status from “voluntary” to “disability,” but was denied.
     He made another appeal for the change some 20 years later, based on new evidence about his condition, but the board didn’t act, citing a 2006 regulation requiring appeals to be submitted within one year of the denial.
     Adamski sued Secretary of the Army John McHugh in January 2014, claiming the board acted ultra vires, or beyond its authority by relying on the 2006 regulation to deny his request.
     The Army filed a motion to dismiss in December 2014, arguing that he missed the 6-year statute of limitations for actions against the federal government, and that Adamski failed to adequately plead an ultra vires claim.
     Judge Brown Jackson said the 6-year statutory period clearly does not apply to Adamski in this case.
     “The bottom line is this: a lawsuit filed in 2014 that challenges agency conduct that occurred in 2011 falls well within the six-year statute of limitations period, and defendant’s contention that 28 U.S.C. § 2401(a) bars Adamski’s claim is meritless,” she wrote in a 12-page order. “Therefore, this court concludes that it has subject matter jurisdiction over Adamski’s amended complaint.”
     But she found that Adamski may not have exhausted his administrative remedies: “In this court’s preliminary review, requiring Adamski to bring to the board or the secretary his argument that the ABCMR acted outside of its authority when it applied the 2006 regulation’s one-year limit to his 2010 reconsideration request seems likely to serve the underlying purposes of administrative exhaustion because, first, it would ensure that the agency has an opportunity to apply its own expertise regarding the application of that regulation in this context in order to correct (or confirm) its decision to apply the regulation to Adamski’s situation, and second, the agency’s consideration of the extent of its authority under the circumstances presented here would inform the parties and the court, enhancing the record for purposes of judicial review.”
     Brown Jackson said that any delay in allowing Adamski to exhaust his administrative remedies would not cause “irreparable injury” and that allowing him the opportunity to exhaust those remedies would not necessarily be futile “in light of recent guidance that the Secretary of Defense has given military corrections boards regarding motions for reconsideration with respect to previously unrecognized claims of PTSD.”
     Adamski did not address the issue of exhaustive remedies in his complaint, compelling Brown Jackson to order discovery.
     “The parties shall engage in discovery with respect to the question of exhaustion for a period of 45 days,” she ruled. “This brief discovery period is limited to ascertaining facts regarding any available procedures for administrative review of summary rejections of requests for reconsideration and whether Adamski has exhausted them with respect to the instant claim.”
     She denied the Army’s motion to dismiss and set a status conference for Sept. 21.
     “With respect to defendant’s argument that plaintiff has otherwise failed to state a claim on which relief may be granted, the motion to dismiss is denied without prejudice.”
     Adamski’s attorney John Wickham told Courthouse News late Friday that he is not confident the Army’s reconsideration “in light of recent guidance” from the Secretary of Defense about previously unrecognized PTSD claims would work in his client’s favor.
     “Of all the branches of service, the Army is different,” he said. “This could end up back in court, but we will have to see what happens. Once thing is certain, though: Adamski won a huge victory with the judge’s order on the six-year statute of limitations.”
     Special Assistant U.S. Attorney Wayne Williams was not available for comment for the Army.

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