Osborn v. United States

In the United States Court of Federal Claims

No. 24-1476

Filed: January 8, 2025

________________________________________

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SHANE J. OSBORN, )

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Plaintiff, )

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v. )

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THE UNITED STATES, )

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Defendant. )

________________________________________ )

REMAND ORDER

Pending before the court is the Government’s motion to stay this action while the Board

for Correction of Naval Records (“BCNR”) reconsiders its decision on Plaintiff’s claims, ECF

No. 7, and the Plaintiff’s cross-motion for remand to the BCNR, ECF No. 9.

Plaintiff brings this action to challenge the BCNR’s determination that he was fit for duty

when he was discharged and did not qualify for military disability retirement. ECF No. 1. His

complaint alleges that the BCNR erred in its evaluation because it did not apply the four

mandatory factors enumerated at Secretary of the Navy Instruction (“SECNAVINST”) 1850.4E

§ 3304. ECF No. 1 at ¶¶ 67-72, 74-75, 77-82. The Government’s motion acknowledges “[i]t is

not clear from the documentation in the existing record whether the BCNR fully considered all

four factors.” ECF No. 7 at 2. While perhaps not conceding error, this argument concedes that

the record, which is not before the court, is insufficient to allow the court to resolve this action

and the end result would be a remand to the BCNR. Rather than spinning our wheels for the

time to brief and argue the merits, the Government has represented that the BCNR wishes to

reconsider the prior decision now. “The BCNR plans to reconsider its prior decision and

evaluate all four factors from SECNAVINST 1850.4E § 3304. The BCNR will then issue a new

decision that supersedes the original decision.” ECF No. 7 at 2. As part of that reconsideration

process, the BCNR intends to allow Mr. Osborn the opportunity to present new evidence and

arguments. Id. at 4-5. The BCNR may seek additional advisory opinions and allow Mr. Osborn

the opportunity to respond to those as necessary. Id. In other words, this is the administrative

law equivalent to an Alford plea—the Government insists that it is not admitting error but

recognizes that it will lose on the merits and wants to reconsider its decision now. But the

Government admits too much. If the record does not reflect that the BCNR considered the

mandatory factors, there is error and remand is appropriate.

Yet, the Government requests specifically that the court stay this matter under Rule 7 of

the Rules of the United States Court of Federal Claims while the BCNR reconsiders its decision,

rather than remand it under Rule 52.2. ECF No. 7 at 1; ECF No. 11 at 1. The Government

argues a remand of this matter under Rule 52.2 would be improper because the six-year statute of

limitations in 28 U.S.C. § 2501 might bar this action. ECF No. 7 at 3-4; ECF No. 11 at 1. The

statute of limitations would bar Plaintiff’s action if he had “actual or constructive knowledge that

he was entitled to disability benefits” under the requirements of 10 U.S.C. § 1201 at the time of

his discharge in May 2005. Real v. United States, 906 F.2d 1557, 1563 (Fed. Cir. 1990); see

Chambers v. United States, 417 F.3d 1218, 1224 (Fed. Cir. 2005) (“The appropriate inquiry . . .

is whether at the time of his separation . . . , [the plaintiff] knew that he was entitled to disability

retirement due to a permanent disability that was not a result of his intentional misconduct and

was service-connected.”); see also ECF No. 7 at 3. The court does not share the Government’s

concerns.

If this court lacks jurisdiction over this matter, it could neither remand nor stay this case

as the Government requests. E.g., Rule 12(h)(3). But the court’s jurisdiction over this case will

turn on facts in the record (which is not yet before the court) that is apparently insufficiently

developed at this point. But that record will be more fully developed during the reconsideration

process. Indeed, the Government’s motion itself states the facts “suggest” that the statute of

limitations may bar Plaintiff’s action, ECF No. 7 at 3, but the Government does not, and cannot,

argue the facts demonstrate conclusively Plaintiff knew or should have known in May 2005 that

he qualified for disability retirement under 10 U.S.C. § 1201. In other words, the Government

does not provide any basis not to remand just because it might file a motion to dismiss at some

point in the future. And from the arguments presented thus far, the court would almost certainly

remand this matter for further development of the record even if the Government moved to

dismiss on statute of limitations grounds to allow the record to be fully developed before

deciding such a motion. In the end, the better course of action is to remand this matter to the

BCNR (as it has effectively requested) and let the BCNR compile a more complete record and

reconsider its prior decision.

Indeed, Plaintiff requests a remand for the same reason the Government seeks a stay—to

allow the BCNR to reconsider its decision and consider all four SECNAVINST factors. ECF

No. 7 at 2; ECF No. 9 at 4-5. Rule 52.2(a) authorizes this court to remand matters to executive

agencies, and the court has “discretion over whether to remand.” SKF USA Inc. v. United States,

254 F.3d 1022, 1029 (Fed. Cir. 2001). When “the agency has not considered all relevant factors,

. . . the proper course, except in rare circumstances, is to remand to the agency for additional

investigation or explanation.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); INS

v. Orlando Ventura, 537 U.S. 12, 16 (2002) (“Generally speaking, a court of appeals should

remand a case to an agency for decision of a matter that statutes place primarily in agency

hands.”). In Kelly v. United States, 69 F.4th 887 (Fed. Cir. 2023), the agency failed to consider

all the criteria in SECNAVINST 1850.4E § 3304—the same alleged error in this case. There,

the court remanded the case to address the required criteria. Id. at 896. A remand of this case to

consider all the SECNAVINST criteria would comport with Kelly and align with the actions the

BCNR already plans to take. See ECF No. 7 at 2 (“The BCNR plans to reconsider its prior

decision and evaluate all four factors from SECNAVINST 1850.4E § 3304. The BCNR will

then issue a new decision that supersedes the original decision.”). Additionally, a remand to the

agency could afford Plaintiff the relief he seeks in the present litigation and remove the need for

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the court to consider a potential motion to dismiss or merits briefing. ECF No. 9 at 5.

Accordingly, the court exercises its discretion to remand this case.

That said, the court is not inclined to instruct the BCNR to take the specific actions that

Mr. Osborn asks the court to include in its order. Specifically, Mr. Osborn asks the court to

instruct the BCNR to reconsider its prior decision and correct any error or remove injustices.

ECF No. 9 at 7. But the BCNR already intends to do that, so the court does not need to instruct

it to do that. Similarly, Mr. Osborn wants the court to instruct the BCNR to allow him 30 days to

submit additional claims, evidence, and argument to the BCNR as part of the remand. ECF No.

9 at 7. Again, the BCNR already intends to allow this. See ECF No. 7 at 4-5. The same is true

regarding Mr. Osborn’s request that the court instruct the BCNR to consider getting new

advisory opinions. See ECF No. 7 at 5; ECF No. 9 at 7.

For the foregoing reasons, the court GRANTS-IN-PART and DENIES-IN-PART the

Plaintiff’s cross-motion for a remand, ECF No. 9, and GRANTS-IN-PART and DENIES-IN-

PART the Government’s motion to stay, ECF No. 7.

The court REMANDS this case to the BCNR for 180 days until July 7, 2025, for further

consideration consistent with this opinion. Pursuant to Rule 52.2(b)(1)(D), the Government shall

file a status report in 90 days on April 8, 2025, updating the court on the status of the remand.

The Parties shall then file a joint status report within 30 days of the BCNR’s final decision

advising the court of the need for any further proceedings. This case will be STAYED during

the remand.

The Clerk of Court is DIRECTED to send a certified copy of this Order to the Board for

Correction of Naval Records at the following address:

Elizabeth A. Hill, Executive Director

Department of the Navy

Board for Correction of Naval Records

701 South Courthouse Road

Building 12, Suite BE140

Arlington, Virginia 22204-2490

It is so ORDERED.

s/ Edward H. Meyers

Edward H. Meyers

Judge

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