# In the United States Court of Federal Claims

No. 13-719C

(E-Filed: June 12, 2018)

TIMOTHY J. HATMAKER,

Plaintiff,

v.

THE UNITED STATES,

Defendant. ) ) ) ) ) ) ) ) ) ) ) Motion for Reconsideration, RCFC 59; Supplementation of the Administrative Record.

Jason E. Perry, Wellington, FL, for plaintiff.

Devin A. Wolak, with whom were Chad A. Readler, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director, StevenJ. Gillingham, Assist ant Director, United States Department of Justice Civil Division, Washington, DC, for defendant. Adam Frey, United States Air Force Litiga tion Division, of counsel.

OPINION

CAMPBELL-SMITH, Judge.

On March 1, 2018, this court dismissed Mr. Hatmaker’s suit after careful review of the parties’ cross-motions for judgment on the administrative record. ECF No. 88. The court has before it plainti ff’s motion for reconsideration which is brought pursuant to Rule 59 of the Rules of the United States Court of Federal Claims (RCFC). ECF No. 90. Defendant opposes plaintiff’s motion for recons ideration. ECF No. 92. For the reasons set forth below, plaintiff’s motion is DENIED

. I. Background

A. Overview

Familiarity with the opinion challenged by plaintiff is pr esumed. See Hatmaker v. United States, 136 Fed. Cl. 454 (2 018) (Hatmaker III). Plaintiff’s claims before this court pertain to military disability retir ement benefits. Id. at 457. Mr. Hatmaker’s claims were2 remanded, twice, to the Physical Disability Board of Review (PD BR), by order of this court. See Hatmaker v. United States, 127 Fed. Cl. 217 (2016) (Hatmaker II); Hatmaker v. United States, 117 Fed. Cl. 560 (2014) (H atmaker I). During these remands, had Mr. Hatmaker persuaded the PDBR that he was 30% disabled (or more) at the time of his separation from the United States Air Force, he would have been awarded military disability retirement benefits. Ha tmaker III, 136 Fed. Cl. at 458.

The PDBR did not change its view of Mr. Hatmaker’s disability ratings, but did correct its analysis to comply with this court’s instructions in Hatmaker I and Hatmaker II. In Hatmaker III, the court found that plain tiff had not met his burden to show that the PDBR’s 2016 decision was arbitrary or capric ious. 136 Fed. Cl. at 466-67. The court also denied Mr. Hatmaker’s request to supplement the administrative record with additional medical and pharmaceutical records. Id. at 467.

B. Plaintiff’s Request to Supple ment the Administrative Record

The court’s focus here is on the proceed ings in this case which followed the PDBR’s 2016 decision. That decision was file d on December 6, 2016. See ECF Nos. 56 (joint status report), 58 (PDBR’s 2016 deci sion on remand). The court subsequently lifted the stay in this case and requeste d the parties’ notices addressing further proceedings, pursuant to RCFC 52.2(f)(1). EC F No. 57.

The parties notified the court that a reco rd supplementation issue had been raised by plaintiff, and that the partie s would attempt to negotiate anamicable resolution of that issue. ECF No. 59. The parties’ notice stat ed that “Mr. Hatmaker believes that certain materials should be added to the administrative record for this case before the parties begin motion practice concerning the PDBR’s late st decision.” Id. at 1 (emphasis added). The parties requested “three more weeks” for plaintiff to a ssemble the proposed record supplement and for defendant to consider wh ether the supplement was merited. Id. The court agreed to the parties’ joint request. ECF No. 60.

Plaintiff presented the proposed record s upplement to defendant on January 26, 2017, one day before the parties’ joint status report was due to be filed at the court. ECF No. 61 at 1; ECF No. 65 at 2. Upon an initial, “not yet comp lete” review of the materials, defendant notified the court that it would o ppose the supplementation request, and the parties asked that plaintiff’s motion to supp lement the record be filed, briefed and resolved before dispos itive motions were filed. ECF No. 63 at 1. The government noted that most of the records proffered by plain tiff had not been reviewed by the PDBR, and thus were not an appropriate supplement to th e record of the PDBR’s 2016 decision. Id. The parties proposed a filing deadline of March 3, 2017, for plaintiff’s motion to supplement the admini strative record. Id.

Plaintiff filed a five-page motion, a pro posed supplement inde x, and a proposed record supplement of fifteen pages, on March 3, 2017. ECF No . 65. Although the3 motion was quite succinct, each page of the proposed supplement was addressed, giving plaintiff’s view as to the probative value of each document includ ed in the proposed record supplement. Id. at 4-5. Plaintiff’s motion was fully briefed. See ECF Nos. 66 (defendant’s response), 67 (plaintiff’s reply).

C. The Court’s Scheduling Orders

The court issued three orders relevant to the resolution of plaintiff’s request to supplement the administrative record. The first order adopted the parties’ understanding that the motion to supplement should be deci ded before cross-moti ons for judgment on the administrative record were filed. See ECF No. 64 at 1 (“The court will wait to schedule further proceedings, including briefing on Mr. Hatmaker’s anticipated motion for judgment on the administrative re[cor d], until after it resolves his motion to supplement the admini strative record.”).

This first order was superseded, however, after the court reviewed the briefing of plaintiff’s motion to supplement the administ rative record. The se cond order substituted a different approach for further proceedings. The court noted that plaintiff’s motion had not yet shown that the proposed supplement was necessary “‘to permit meaningful judicial review.’” ECF No. 68 at 2 (citing Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009)). The court explained th at further contex t was required:

The court believes the best course in this case is to defer ruling on the present motion [to supplement the admini strative record] until further context is available that will allow the court to make a proper determination as to whether the documents are necessary.

Id. The court stayed its reso lution of plaintiff’s motion to supplement, and the parties were directed to “confer and file a joint stat us report proposing further proceedings in this matter.” Id.

In light of the court’s commentary, the pa rties proposed a briefing schedule for the filing of their cross-motions for judgment on the administrative reco rd, with responsive briefing to follow according to th e rules of this court. EC F No. 69. Implicit in that proposed schedule was the parties’ recognition that no resolution of plaintiff’s motion to supplement the administrative record would be available to guide their briefing of the dispositive motions. The court adopted the pa rties’ proposed schedule. ECF No. 70. Thus, the court’s initial plan of resolving plaintiff’s motion to supplement the administrative record before turning to the parties’ cross-motions for judgment on the administrative record was c onclusively superseded by a different approach, where the4 court would consider the request to supplement the administrative recordin the context of the parties’ arguments intheir dispositive motions. 1

Thus, the court’s third order directed the parties to provide all of their arguments for judgment on the administrative record in their dis positive motions and responsive briefing. If some of plaintiff’s arguments might have found support in his proposed supplement to the administrativ e record, his only o pportunity to signal su ch support to the court was in the context of his moving brief and his response/reply brief. ECF Nos. 75, 86. To the extent that M r. Hatmaker refrained, to some degree, from relying on his proposed supplement to the admi nistrative record in those br iefs, no rational justification for such a decision can be found in the text of the court’s orders deferring a ruling on his motion to supplement the admini strative record. See ECF Nos. 68, 70. Before turning to the merits of plaintiff’s motion for reconsideration, the court addresses the pertinent standard of review.

II. Standard of Review for Motions Brought under RCFC 59

Pursuant to the rules of this court, a plai ntiff may be granted reconsideration of the court’s disposition of a case “for any reason for which a new trial has heretofore been granted in an action at law in federal cour t [or] for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.” RCFC 59(a)(1)(A)-(B). “The decision whether to grant reconsiderati on lies largely within the discretion of the [trial] court.” Yuba Nat. Res., Inc. v. Un ited States, 904 F.2d 15 77, 1583 (Fed. Cir. 1990) (citations omitted). The motion for rec onsideration “must be based on a manifest error of law or mistake of fact and must show either: (1) that an intervening change in the controlling law has occurred; (2) that previously unavailable evidence is now available; or (3) that the motion is necessary to prevent manifest injustice.” First Fed. Lincoln Bank v. Unite d States, 60 Fed. Cl. 501, 502 (2004) (citations omitted).

III. Analysis

Mr. Hatmaker presents three argum ents in support of his motion for reconsideration. The first two concern the court’s consideration and rejection of his motion to supplement the administrative record with fifteen pages of additional medical and pharmaceutical records. EC F No. 90 at 3-7. The thir d argument suggests that the court erred when it found that Mr. Hatmak er waived an argumen t based on 38 C.F.R.

1 This is hardly a novel approach. See, e.g., Strand v. Unite d States, 127 Fed. Cl. 44, 46, 51 (2016) (resolving dispositive motions concurre ntly with a motion to supplement the administrative record), aff’d, 706 F. App’x 9 96 (Fed. Cir. 2017); Miller v. United States, 119 Fed. Cl. 717, 720, 733 (2015) (re solving dispositive motion concurrently with a motion to supp lement the administrative record).5 § 4.16(b) (2017). ECF No. 90 at 7-10 (citi ng Hatmaker III, 136 Fed. Cl. at 460 n.6). None of these arguments has merit.

A. Motion to Supplement the Administrative Record

1. Deferred Ruling

First, plaintiff argues that the court e rred when it deferred ruling on his motion to supplement the administrative re cord. The court reproduces virtually all of plaintiff’s argument here:

By deferring ruling on the motion, Mr. Hatmak er was placed in the position of not being able to make the arguments that woul d have made the showing of the necessity of the records for effectiv e judicial review. Mr. Hatmaker was concerned about this i ssue and explicitly asked the Court to allow him to rely on the re cords in his motions. In his reply brief to his motion, he stated, “Should the Court de ny our motion, we respectfully ask that any decision and order clarify whet her Plaintiff may rely on the proffered records by including them as appendices or attachments to future motions or briefs.” ECF [No.] 75 at 4. When th e Court did not address this issue in its order staying his motion, ECF [No.] 68, plaintiff understood that he could not rely on or make arguments regard ing the documents proffered in ECF [No.] 65-1. Counsel for the plaintiff believes that in staying the motion and deferring ruling on it, the plaintiff was pr ohibited in making arguments in the parties[’] cross-motions that he needed to in order to convince the Court that the very subject records are necessary for effective judicial review. He understood the Court to mean that itwas deferring its ruling to see if the subsequent motions would ob viate [the] need to rule on the records issue, as if plaintiff was able to convince th e Court that the PDBR’s decision was arbitrary, capricious, or not supported by substantial evidence, then completion or supplementation of the record would not be necessary. By deferring its ruling, however, Mr. Hatmak er believes he was not given a fair opportunity to demonstrate the necessityof inclusion of the records in the AR . . . .

ECF No. 90 at 3-4. As the court explained in the background sect ion of this opinion, however, plaintiff’s motion to supplement could not be gr anted without some context showing why the supplement was necessary, unde r Axiom. In other words, plaintiff had failed to convince the court that the motion sh ould be granted, and deferral of any ruling on the motion was the best option ava ilable to the court at that point.

As for counsel’s misinterpretation of the court’s second and third scheduling orders, construing these as a ban on reliance on the proposed supplement to the6 administrative record, the court canno t find therein a manifest injustice. 2 Mr. Perry is an experienced litigator before this court. If he needed clarification of these scheduling orders, he should have filed a motion for clarif ication to obtain the answer he desired. In addition, the schedule proposed by the partie s allowed counsel more than a month to prepare his motion for judgment on the administrative record . Mr. Perry had ample time to request clarification from the court.

Finally, to the extent that plaintiff argues that he was deprived of a fair opportunity to renew and revise his motion to supplement within the body of hi s motion for judgment on the administrative record, the court must disagree. See ECF No. 90 at 3 (“Mr. Hatmaker was placed in the pos ition of not being able to make the arguments that would have made the showing of the necessity of the records for effectiv e judicial review.”), 4 (stating that he believed “t he plaintiff was prohibited inmaking arguments in the parties[’] cross-motions that he needed to in order to conv ince the Court that the very subject records are necessary for effective judicial review”), id. (stating that “Mr. Hatmaker believes he was not given a fair op portunity to demonstrate the necessity of inclusion of the records in the AR”). Mr. Ha tmaker had two fair opportunities to present his arguments for supplementation of the administrative record.

First, once the PDBR’s 2016 decision was f iled, the supplementation dispute was raised by plaintiff and could not be resolved amicably. Consequent ly, Mr. Hatmaker was given three weeks to prepare a motion to supp lement the administrative record pursuant to a schedule proposed by the parties. ECF Nos. 63 (joint status report), 64 (scheduling order). In that time period, plaintiff’s counsel produced a one-paragraph argument explaining why each of the particular documents included in plaintiff’s proposed supplement to the record wa s necessary for the court’s re view of the PDBR’s 2016 decision. ECF No. 65 at 4-5. Mr. Hatmak er had an ample opportunity to convince the court that his motion to supplem ent should be granted. Th at Mr. Hatmaker’s brief was unpersuasive is not tantamount to the denial of a fair opportunity to argue the motion.

Mr. Hatmaker’s motion for judgment on the administrative record offered plaintiff a second chance to argue the necessity of the proposed supplement and to meet the requirements of Axiom. As the court note d when it deferred ruling on the motion to supplement, the parties’ subsequent briefi ng would provide the context in which the necessity of the proposed supplement would be determined. See EC F No. 68 at 2 (“In order to demonstrate that including these supplementary documents is proper, plaintiff must show that they are necessary to meaningful judici al review.”). Plaintiff, however, did not devote any porti on of his dispositive motion to this issue.

2 The court observes that Mr. Perry’s i nquiry as to plaintiff’s reliance on the documents in the proposed supplement was pr edicated on the court’s denial of Mr. Hatmaker’s motion to supple ment the administrative re cord. ECF No. 67 at 4.7 Mr. Hatmaker did, however, as defendant points out, refer to the proposed supplement as support for plaintiff’s challeng e to the latest PDBR de cision. See ECF No. 92 at 4 (citing ECF No. 75 at 26, 34-35). Th e court concludes that Mr. Hatmaker was given a sufficient opportunity to convince the court that the record should be supplemented, and was also able , despite his protestations to the contrary, to point to the proposed supplement as support for his motion for judgment on the administrative record. In these circumstances, the court does not find that its deferral of a ruling on plaintiff’s motion to supplement the administrative record constituted a manifest injustice, or that reconsideration of the court’s dismissal of this suit is warrant ed on this issue.

2. Denial of the Motion to Supplement

a. Background

Mr. Hatmaker suggests that the court erred when it denied his motion to supplement the administrative re cord. Before turning to pl aintiff’s arguments in this regard, the court must lay an adequate foundation. The fift een-page proposed supplement to the administrative r ecord is largely comprised of phar maceutical records showing that certain medications were issued to Mr. Hatm aker. ECF No. 65-1 at 3-11. According to his motion to supplement th e administrative record, thes e records contradict an assumption by the PDBR that he was not taking medication for obsessive compulsive disorder (OCD) at certain times. ECF No. 65 at 4-5. An additional document also relates to prescribed medications, but this document appears to lend support to the chronology of medication use described by the PDBR. EC F No. 65 at 4; ECF No. 65-1 at 2 (gall bladder surgery record); see also ECF No. 58 at 4 (showing that the PDBR speculated that gall bladder surgery delayed the filling of one of Mr. Hatmak er’s prescriptions).

The remainder of the documents are trea tment records that briefly reference vertigo. The first document, emergency roomdischarge instructions, provides general guidelines for coping with vertigo, and lists two medications that were prescribed for vertigo and congestion. ECF No. 65-1 at 12- 14. The second docu ment is a physical therapy note that comments on the patient’s “sporadic” attendance due to vertigo, and states that Mr. Hatmaker was waiting to be asse ssed for vertigo. Id. at 15. Finally, the third document, dated July 9, 2010, sche duled Mr. Hatmaker for treatment for the condition underlying his vertigo. Id. at 16. According to plaintiff’s motion to supplement the administrative re cord, these records “provide ev idence of the severity of Mr. Hatmaker’s vertigo” and contradict the PD BR’s reliance on the “l ack of other records about treatment for vertigo.” ECF No. 65 at 5.

Along with the proposed supplement of fi fteen pages, plaintiff argued that he should be given “liberal leave and [the ] right” to add more documents to the administrative record, depending on the issues raised by the briefing of the parties’ cross-motions for judgment on the administrative record. Id. at 1. The extent of future supplementation of the admini strative record was not specified by plaintiff. Id.8 In opposition, defendant argued that M r. Hatmaker’s motion to supplement the administrative record should be denied beca use the record before the court was certified to contain all of the materials consider ed by the PDBR when it rendered its 2016 decision. ECF No. 66 at 2-3. According to defendant, the records presented by plaintiff in the proposed supplement, and in any future proposed supplements, were not considered by the PDBR, and thus were not proper to include in the administrative record. Id. at 1-2. Rather than turn this su it into a de novo proc eeding which weighed record evidence and supplementa l evidence, defendant argued that only a remand to the PDBR would permit the court to consider Mr. Hatmaker’s new evidence. Id.

Plaintiff replied that he “does not agree with remand as a required step in this case.” ECF No. 67 at 4. Plaintiff argued that supplementation was proper, because “[i]n injecting issues not in the record and specu lating about facts not before the PDBR, the agency has created the problem of making st atements that the Plaintiff would like to refute with directly relevant documentary evid ence.” Id. at 3. At the conclusion of the briefing of plaintiff’s motion to supplement, as noted supra, the court deferred ruling on the supplementation issue until it could consider the request in the cont ext of the parties’ cross-motions for judgment on the administrativ e record.

b. Denial of Plaintiff’s Motion in Hatmaker III

Overall, the court concluded that “nothing in the documents presented by plaintiff shows that effective review of the PDBR’s 2016 decision co uld not occur in the absence of these documents.” Hatmaker III, 136 Fed. Cl. at 460. The basis for this conclusion was the court’s finding that these documents were not probative regarding the rationality of the PDBR’s analysis of the disability rati ngs for Mr. Hatmaker’s OCD and vertigo. Id. at 462, 466 n.12. When the court considered the potential impact of these documents on the rationality of the PDBR’s conclusions regarding OCD and ve rtigo, the impact was so inconsequential that the probative value of these documents did not merit either a remand to the PDBR or supplementation of the administrative record. Id. at 460 n.5, 462 n.8, 466 n.12.

The court also relied on a second reas on to deny Mr. Hatm aker’s motion to supplement the administrative re cord. The records in the pr oposed supplement were not presented to the PDBR in 20 12, they were not introducedin this litigation during two rounds of dispositive motions which specifica lly addressed disability ratings for OCD and vertigo, nor were they all presented to the PDBR during the remand proceedings ordered by Hatmaker I and Hatmaker II. Th e court found that ev en if the proposed supplement could be viewed as having pr obative value, these materials should be excluded because plaintiff had am ple opportunity to present themto the PDBR, or to this court, in time to have these materials review ed in an efficient fa shion by the PDBR. Hatmaker III, 136 Fed Cl. at 460 nn.4-5.9 The court’s role here is to review the PDBR’s decision under the “substantial evidence” standard. Id. at 458-59 (citations om itted). That role is undermined when the claimant withholds pote ntially relevant eviden ce until the final stages of the litigation of his case. This court must exclude evidence wh en it is clear that the evidence could, and should, have been presented to the review board at an earlie r stage of the proceedings. Id. at 460 n.4 (citing Walls v. United States, 582 F.3d 1358, 1368 (Fed. Cir. 2009)).

c. No Error in Deni al of Supplementation

Plaintiff presents three arguments cha llenging the denial of his motion to supplement the administrative re cord. First, Mr. Hatmaker st ates that he was under no obligation to submit these r ecords to the PDBR. ECF No . 90 at 5-6. Second, Mr. Hatmaker alleges that the relevance of the additional records was not made clear until the PDBR issued its 2016 decision, so he had no reason to subm it these records at any earlier time. Id. at 5. Third, Mr. Hatmaker argues that his medication records refute the PDBR’s assumptions as to his vertigo medicati on usage, and thus are necessary to assess whether the agency arbitrarily and capriciously considered the vertigo evidence before it. Id. at 6-7. Plaintiff also implies that the court impermissibly subs tituted its judgment for that of the agency. Id. at 7 (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (Chenery)). In plaintiff’s view, a re-opene d judgment and a remand of the proposed supplemental documents to the PDBR are warrant ed in these circumstances. Id. at 1.

The court must disagree. First, as to Mr. Hatmaker’s allegation that he had no regulatory obligation to present evidence to the PDBR, this may be true. But plaintiff himself acknowledged that the PDBR is required to consider evidence submitted to it by a claimant. ECF No. 16 at 21 (plaintiff’s first dispositive motion) (citations omitted). It is also clear from the record before the court that plain tiff submitted evidence to the PDBR in 2012. See, e.g., EC F No. 13 at 17 (defendant’s first dispositive motion) (citing ECF No. 12-1 at 18, 30-31). Moreover, plaintiff submitted exactly th e type of evidence proffered here during one of the remands to the PDBR. S ee, e.g., ECF No. 58 at 6-7 (evidence of prescription medica tion), 24 (evidence of vertigo), 31 (evidence of vertigo). Indeed, at least one of the documents in his proposed supplement was among those he had already submitted to the PDBR, and whic h was considered by the PDBR. Compare ECF No. 58 at 24, with ECF No . 65-1 at 15. Therefore, ev en if Mr. Hatmaker was not required to submit relevant evidence to the PDBR , he certainly should have done so if the PDBR did not appear to be aware of the evidence.

Second, Mr. Hatmaker’s medi cation usage was clearly an important issue in this case. Even if he had no reason to submit su ch records to the PDBR in the first instance, once gaps in the medication record became ev ident to the court and the parties, Mr. Hatmaker was on notice that any medication evid ence available to him that might not be in the record was essential fo r his case. The court specifica lly noted in Hatmaker I that the administrative record did not appear to be complete as to the medications plaintiff was taking for his vertigo. See 117 Fed. Cl. at 575 (sta ting that “the court cannot10 determine from the record what, if any, imp act the Board’s awarenes s (or lack thereof) of plaintiff’s vertigo medication had on its decision”). In thes e circumstances, plaintiff’s failure to present the documents containe d in his proposed supplement to the PDBR during the first remand ordered by the court doomed his attempt to add these documents to the administrative record in this case three years late r. Plaintiff’s motion to supplement the administrative re cord is improper for the reasons stated in Hatmaker III. 136 Fed Cl. at 460 nn.4-5.

Third, the court cannot agree with plain tiff that the records in the proposed supplement were probative, because their impact was inconsequential in the context of the PDBR’s analysis of Mr. Hatmaker’s OCD an d vertigo. At most, these records show that the PDBR made one erroneous assumption as to the constancy of Mr. Hatmaker’s reliance on certain medications, and may have underestimated the extensiveness of the treatment records relevant to Mr. Hatmaker’s vertigo. As defendant points out, neither of these proposed additions to the factual record address the crucial issue of “occasional staggering,” nor do they undermine the PD BR’s rational assessment of the probative value of the opinion of one of Mr. Ha tmaker’s treating physicians, Dr. Malagon. 3 ECF No. 92 at 5-6. The court refused to supple ment the administrative record here because there was no probative value in these documents. 4

Finally, the court responds to plaintiff’s insinuation that the court improperly substituted its judgment for that of the PDBR, an argument which is presented only in a bare citation to Chenery. ECF No. 90 at 7 (quoting 332 U.S. at 1 96). Plaintiff first invokes the “substantial evidence” standard of review, and then cites Chenery for the proposition that “the basis for an agenc[y’s] decision must be based on the grounds stated by the agency.” Id. This fra gment of an argument appears in the section of plaintiff’s motion for reconsideration devoted to Mr. Hatmaker’s contention that his motion to

3 Plaintiff misstates the PDBR’s weighing of the probative value of Dr. Malagon’s letter. See ECF No. 65 at 5 (stating that supplementation was necessary to “respond to the board’s statements sugges ting that Dr. Malagon’s letter does not carry much weight due to lack of other records about treatme nt for vertigo”). The letter received little weight for other reasons, including, for example, because “it was not supported by the copies of the clinic records from the period of time following separation from service that were submitted [to the PDBR by Mr. Hatmaker].” ECF No. 58 at 31 (emphasis added). Dr. Malagon’s statements were not discounted because of the PDBR’s allegedly faulty reliance on a “lack of other records about tr eatment for vertigo.” ECF No. 65 at 5.

4 The court observes that any probative weight these documents might have had was given due consideration by the court in its resolution of the partie s’ cross-motions for judgment on the administrativ e record. The court did not reject the documents out of hand as support for plaintiff’s case; it merely excluded them from the official administrative record filed in this case.11 supplement should have been granted becaus e the proffered record s were necessary for the effective review of the PDBR’s 2016 decision. Id. at 6-7. Assuming that this insinuation presented by plaintiff concerns the court’s decision to not remand the proposed document supplement to the PD BR, the court revisits this topic.

In Hatmaker III, the court discussed th e relevant standard of review for supplementation of the administrative reco rd in military pay ca ses and considered whether remand was appropriate in response to plaintiff’s motion to supplement the administrative record in this case. See 136 Fed. Cl. at 459-60 & nn.4-5 (citing, among other authorities, Walls, 582 F. 3d at 1367-68; Holmes v. Un ited States, 98 Fed. Cl. 767, 780 (2011)). Under those authorities, and Axiom, 564 F.3d at 1380, neither supplementation of the record nor remand was appropriate. Hatmaker III, 136 Fed. Cl. at 460 & nn.4-5, 462 & n.8, 466-67 & n.12. Rather than substitute its judgment for that of the PDBR, the court applied relevant prece dent to determine whether remand to the PDBR was the proper course of action. 5 In doing so, the court de termined both that there was no probative value in the proposed suppl ement and that these documents should be excluded from the administrative record be cause Mr. Hatmaker should have submitted them to the PDBR at an earlie r stage of this controversy.

The court is well aware of caselaw that fo rbids this court, under the arbitrary and capricious standard of review, from substituti ng its judgment of the underlying facts for that of the agency’s review of the facts in the first instance. See, e.g., Chenery, 332 U.S. at 196. This precedent provides that an agency’s decision can only be upheld on the basis that the agency invoked , not on some new basis determinedby the court. Id.; see also OMV Med., Inc. v. United St ates, 219 F.3d 1337, 1344 (F ed. Cir. 2000) (citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285-86 (1974); Chenery, 332 U.S. at 196). Here, the court did not stray from this principle. The reasons provided by the PDBR to affirm Mr. Hatmaker’s di sability ratings for OCD and vertigo were upheld because they were fundamentally ra tional, even when every document in the proposed supplement to the administrative record was considered. Hatmaker III, 136 Fed. Cl. at 462 & n.8, 466 n.12. The court did not subst itute its judgment for that of the PDBR.

In the court’s view, denial of plaintiff’s motion to supplement the administrative record was warranted under the circumstan ces of this litigation and under relevant precedent. Thus, the court’s denial of the motion was not improper. Nor is reconsideration of the court’s dismissal of th is suit warranted due to the errors alleged by

5 It is somewhat incongruous that plai ntiff now recommends another remand to the PDBR after opposing “additional remands” in his briefing of the supplementation issue. See ECF No. 67 at 4 (stating that “[p]lainti ff is concerned with additional remands [to] the PDBR”).12 plaintiff in the court’s decision denying plai ntiff’s motion to supplement the administrative record.

B. Waiver of Argument Not Presented to the PDBR or This Court

Mr. Hatmaker also contends that the c ourt erred when it found that plaintiff had waived any argument based on 38 C.F.R. § 4. 16(b). ECF No. 90 at 7-10. In essence, plaintiff attempts to convince the court that th e prior history of this case, which contains absolutely no reference by plaintiff to the specific regulatory language contained in 38 C.F.R. § 4.16(b), n onetheless shows that plaintiff is now entitled to argue that the specific provisions of this regulatory subsection were violated, in ad dition to his prior contentions that the specific provisions of 38 C.F.R. § 4.16(a) were violated . In support of his theory that the doctrine of waiver sh ould not be applied here, plai ntiff highlights some of the history of this case. ECF No. 90 at 7-10. The court reviews here the facts pertinent to the waiver issue.

The issue of unemployability was raised by plaintiff in his initial application for relief from the PDBR. ECF No. 12 -1 at 17-18. Plaintiff also referenced 38 C.F.R. § 4.16 (“Total disability ratings for compensation ba sed on unemployability of the individual.”). ECF No. 12-1 at 17. However, his only ar gument for receiving a disability rating of 100% from the PDBR relied on the principle that is incorporated in 38 C.F.R. § 4.16(a), a principle which may apply when a maximu m “schedular” rating for a disability (or disabilities) is below 100%, bu t that same disability, or combination of disabilities, renders the individual veteran unemployable. ECF No. 12-1 at 17; see also 38 C.F.R. § 4.16(a) (“Total disability rati ngs for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of serviceconnected disabilities[.] ”). No reference whatsoever is made by plaintiff to the procedures and policies, intern al to the United States Department of Veterans Affairs, which are enunciated in 38 C.F.R. § 4. 16(b), regarding the unem ployability of veterans. 6

6 As defendant argued in its latest cross-motion for judgment on the administrative record, the applicability of th is section, 38 C.F.R. § 4. 16(b), to a PDBR disability determination is not logical. ECF No. 85 at 36-37. Nor, defendant noted, did plaintiff provide any authority to support the applicability of 38 C. F.R. § 4.16(b) to this case. ECF No. 85 at 37. Plaintiff did not attemp t to rebut the government’s argument in his reply brief. ECF No. 86. The court must agree with defendant that plaintiff has failed to meet his burden to show that 38 C.F.R. § 4. 16(b) applies to this case, or that this regulation was violated by the PDBR, even if such an argument were not waived. ECF No. 85 at 37 (citing Dorl v. United States, 200 Ct. Cl. 626, 633 (1973); Rose v. United States, 35 Fed. Cl. 510, 512 (1996)).13 Once the PDBR denied plaintiff’s app lication for relief, plaintiff filed his complaint in this court. EC F No. 1. Again, Mr. Hatmak er referenced unemployability and 38 C.F.R. § 4.16, but his argument in this regard relied solely on the principle that unemployability may ove rcome a maximum schedular rati ng of less than 100% for a particular disability or combination of disab ilities, the principle that is enunciated in 38 C.F.R. § 4.16(a). ECF No. 1 at5. Plaintiff’s reliance on 38 C.F.R. § 4.16 in his first motion for judgment on the administrative record similarly espoused the principle encompassed in 38 C.F.R. § 4.16(a), with no mention of the procedures and policies described in 38 C.F.R. § 4.16(b). See ECF No . 16 at 17-18, 28-30. Indeed, the only cited language of 38 C.F.R. § 4.16 in that motion, aside from th e title of the regulation, is from 38 C.F.R. § 4.16(a). ECF No. 16 at 17-18, 28. The procedural history of this case shows that plaintiff did not raise any right to relief, from either the PDBR or this court, based on 38 C.F.R. § 4.16(b).

Unsurprisingly, then, this court focused on 38 C.F. R. § 4.16(a), not 38 C.F.R. § 4.16(b), when it granted partial judgment fo r defendant on the unemployability issue. Hatmaker I, 117 Fed. Cl. at 577-78. Plai ntiff’s second motion for judgment on the administrative record did not re ference 38 C.F.R. § 4.16 at a ll. See ECF No. 44. It is only when plaintiff filed his third motion for judgment on the admini strative record that the issue of a possible violation of 38 C.F.R. § 4.16(b) was raised. ECF No. 75 at 38-39. In light of these procedural facts, the court remains convin ced that Mr. Hatmaker waived any such argument by not presen ting it, first, to the PDBR, or to this court in his complaint, or to this court in his first two motions fo r judgment on the administrative record. 7 Hatmaker III, 136 Fed. Cl. at 460 n.6.

Plaintiff presents two principal arguments asserting that he did not waive his 38 C.F.R. § 4.16(b) challenge to the PDBR’s 2016 decision. First, plaintiff contends that various references to the con cept of unemployability and to 38 C.F.R. § 4.16 in his court filings preserved his right to raise an argum ent based on 38 C.F.R. § 4.16(b). ECF No. 90 at 8-9. Although he concedes that he ne ver directly referenced 38 C.F.R. § 4.16(b), “Mr. Hatmaker believes that his citation in the complaint to the general section, 38 C.F.R. § 4.16, was inclusive of all subs ections.” ECF No. 90 at 9. The court cannot agree. The procedural history of Mr. Ha tmaker’s claims, reviewed s upra, shows that his untimely reliance on 38 C.F.R. § 4.16(b) constituted a new argument that was raised many years

7 It does not help plaintiff’s cause th at once defendant cha llenged his 38 C.F.R. § 4.16(b) argument as newly raised, as well as in firm as a matter of law, plaintiff did not address either the timeliness issue or the pertinence of 38 C.F.R. § 4.16(b) to a PDBR determination in his reply brief. See ECF No . 87 at 1-2 (suggesting that the court might rule in the government’s favor on any of defendant’s legal contentions that were not addressed or rebutted in plaintiff’s reply br ief) (citing Salter v. United States, 119 Fed. Cl. 359, 363 (2014)).14 after Mr. Hatmaker first petitioned the PDBR, and this court, for relief. Mr. Hatmaker thus waived his right to bring this argument, for the first time, in his third motion for judgment on the administrative record. E.g., Metz v. Unite d States, 466 F.3d 991, 999 (Fed. Cir. 2006) (c itations omitted).

Plaintiff’s second argument against waiver is somewhatunclear, but regardless of its logic, the argument suffers from both factual and legal error. Mr. Hatmaker states that “his first opportunity to address the PDBR’s flawed [38 C.F.R. § 4.16] analysis came after it issued its decision in 2016.” ECF No. 90 at 9. This statement ignores the fact that 38 C.F.R. § 4.16 was raised by plaintiff in his applicati on for relief to the PDBR, ECF No. 12-1 at 17, that he raised arguments based on 38 C.F.R. § 4.16 both in his complaint, ECF No. 1 at 5, and in his first motion for judgment on the admi nistrative record, ECF No. 16 at 17-18, 28-30, and that this court granted partial judgment to defendant because the PDBR had not violated 38 C.F. R. § 4.16 in Hatmaker I, 117 Fed. Cl. at 577-78. Thus, to the extent that plaintiff a lleges that he had to wait for the PDBR’s 2016 decision before addressing his alleged right to disability through unemployabilityunder 38 C.F.R. § 4.16(b), these facts show that he had ma ny opportunities to clai m military disability retirement benefits under his interpretation of 38 C.F.R. § 4.16(b), at the same time he made claims under his interpretation of 38 C.F.R. § 4.16(a). All of these opportunities predate the filing of Mr. Hatmaker’s thir d motion for judgment on the administrative record.

The legal underpinning of plaintiff’s second argument against waiver is also flawed. Mr. Hatmaker presen ts the following legal analysis of the waiver issue:

As the PDBR was required to consider 38 C.F.R § 4.16 in its original decision, [Mr. Hatmaker] did not have to raise this issue before the agency to preserve it. The requirement was part of the statutory and regulatory rules that applied to the PDBR. When the PDBR undertook an analysis under 38 C.F.R § 4.16(a) and issued a decision based on its analysis, it was required to fully comply with the entirety of the regulation at issue.

ECF No. 90 at 9-10. The court notes, first, that the PDBR’s 2016 decision considered 38 C.F.R. § 4.16 because plainti ff raised that regulation’s pr ovisions for 100% disability based on unemployability, which are found in 38 C.F.R. § 4. 16(a). See ECF No. 12-1 at 17; ECF No. 58 at 16. Thus, to the extent that plaintiff argues that the PDBR’s 2016 decision in some fashion trig gered a newborn right for plaintiff to argue entitlement to benefits based on 38 C.F.R. § 4.16(b), the sequence of events shows, instead, that the PDBR was reacting to plaintiff’s reliance on 38 C.F.R. § 4.16(a). Plaintiff, not the PDBR, initiated the discussi on of 38 C.F.R. § 4.16(a).

Further, plaintiff cannot complain that the PDBR did not, on its own initiative, consider whether 38 C.F.R. § 4.16(b) might provide a rationale for plaintiff to obtain military disability retirement benefits. As de fendant notes, it is plaintiff’s burden to15 argue its case before a military corrections board. ECF No. 92 at6-7 (citing Metz, 466 F.3d at 999). Any arguments not presented to the PDBR were waived. Metz, 466 F.3d at 999 (citations omitted). Here, because plainti ff failed to argue before the PDBR that 38 C.F.R. § 4.16(b) entitled him to military disability retirement benefits, that argument has been waived and reconsideration of the court’ s ruling on this issue is not warranted.

IV. Conclusion

The court finds no error in its deferra l of a ruling on plaintiff’s motion to supplement the administrative record. The court also finds no error in its denial of plaintiff’s motion to supplement the admini strative record. Finally, the court finds no error in its determination that plaintiff waived any argument based on 38 C.F.R. § 4.16(b). Plaintiff has not shown that the di smissal of his suit invo lved a manifest error of law, mistake of fact or manifest inju stice. Accordingly, plaintiff’s motion for reconsideration, ECF No. 90, is DENIED

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IT IS SO ORDERED.

s/ Patricia Campbell-Smith PATRICIA CAMPBELL-SMITH Judge