Larkin v. United States

In the United States Court of Federal Claims

ERIK J. LARKIN,

Plaintiff,

v. No. 25-219

(Filed: June 4, 2025)

THE UNITED STATES,

Defendant.

Ann M. Welhaf, Alexandria, VA, for Plaintiff.

Catherine M. Yang, Civil Division, United States Department of Justice, Washington, DC, for

Defendant.

OPINION AND ORDER

LERNER, Judge.

I. Introduction

Plaintiff Erik J. Larkin alleges his discharge from the United States Marine Corps was

unlawful. Am. Compl. at 1, ECF No. 16. He seeks back pay, a void of his discharge, a

correction of his records, and other relief. Id. at 41. Before the Court are Plaintiff’s Motion for

an Emergency Preliminary Injunction and Defendant’s Motion for a Voluntary Remand to the

Board for Correction of Naval Records (“BCNR”). Pl.’s Mot. for Prelim. Inj., ECF No. 10;

Def.’s Second Mot. for Remand (hereinafter “Mot. for Remand”), ECF No. 17. The Court

DENIES Plaintiff’s requested preliminary injunction for lack of jurisdiction, and it also

DENIES Defendant’s request for a remand.

II. Factual Background

At this stage, the Court relies on Plaintiff’s well-pled allegations without making findings

of fact. See Rahman v. United States, 149 Fed. Cl. 685, 687 (2020). Mr. Larkin enlisted in the

Marine Corps after high school in September 2020. Am. Compl. at 3. His five-year contract

was scheduled to expire on September 7, 2025. Id. He served as an Air Traffic Control radar

technician at Marine Corps Air Station Yuma in Yuma, Arizona (“MCAS Yuma”), where he

worked the overnight shift for most of his tenure. Id. at 4. Plaintiff received several accolades,

including service medals and a nameplate erected in his honor. Id.

Plaintiff was promoted to Lance Corporal on or about September 1, 2021 and to Corporal

the following year. Id. at 5. On October 25, 2024, he received an evaluation test score high

enough to earn a promotion to Sergeant, set to take effect November 2024. Id.

Beginning in March 2024, Plaintiff began to experience a “hostile work atmosphere”

after leadership changed at MCAS Yuma. Id. at 6. The Marine Corps Criminal Investigation

Division (“CID”) opened an investigation into illegal drug use at MCAS Yuma that eventually

focused on him and two other Marines. Id. at 9, 15. The Amended Complaint includes the

resulting investigation report. Am. Compl. Ex. A (hereinafter “Ex. A”) at 81–123, ECF No. 16-

1.

Mr. Larkin concedes he purchased and used vape pens—specifically, a fruit-flavored

vape product called “Pack-A-Punch”—sold by the smoke shop “Bummy Legion.” Am. Compl.

at 7–9. Bummy Legion advertises the relaxing effects of valerian root, supposedly one of the

ingredients in Pack-A-Punch. Ex. A at 5, 8, 11. Plaintiff alleges Pack-A-Punch is a lawful

product that he used for “sleep and relaxation” after he developed insomnia working night shifts

as a radar technician. Am. Compl. at 7, 9.

On August 19, 2024, in a recorded session lasting for about eight hours, two CID agents

questioned another Marine at MCAS Yuma who used Pack-A-Punch. Id. at 10. One of the

agents told this Marine he “knew” Pack-A-Punch was “a prohibited designer drug” similar to

marijuana. Id.; Ex. A at 85. The agent allegedly pressured the Marine to “save himself” by

implicating others, and the Marine named Mr. Larkin. Am. Compl. at 10–11. The agents

obtained permission from the Marine to search his phone, discovering text exchanges with

Plaintiff from a year earlier about Pack-A-Punch. Id. at 11; Ex. A at 91–95, 97–112. However,

Plaintiff maintains the texts never refer to prohibited substances. Am. Compl. at 12.

On August 26, 2024, CID agents questioned Mr. Larkin for several hours in a recorded

session. Id. at 13. An agent read Mr. Larkin his Miranda rights, and Mr. Larkin declined to

answer questions. Id. The agent also confiscated Plaintiff’s phone, telling him that he would be

“in direct violation of a lawful order” if he did not turn it over. Id. at 14. Defendant kept

Plaintiff’s phone for several months but did not include any evidence from it in the investigation

report. Id. at 15; Ex. A at 81–123.

CID forwarded the report to a Judge Advocate General (“JAG”), who concluded the

evidence was insufficient to bring before a court martial or non-judicial punishment board. Am.

Compl. at 16. Nonetheless, the JAG recommended involuntary administrative separation. Id.

Defendant told Plaintiff that under the Marine Corps Separation and Retirement Manual, he was

not entitled to a hearing before a separation board because he was a probationary servicemember

who had served fewer than six years. Id. See also MCO 1900.16 Ch. 2 ¶ 6210(6)(c). Instead,

Mr. Larkin received the “notice procedures” for probationary servicemembers, which provide a

right to written notice of the proposed discharge, consultation with counsel, and at least two days

to return a written response. See Am. Compl. at 16; MCO 1900.16 Ch. 2 ¶ 6303. Plaintiff

alleges the Commanding Officer acting as the “separation authority” was required to determine

whether the underlying reason for his discharge was supported “by a preponderance of the

evidence.” Am. Compl. at 28 (citing MCO 1900.16 Ch. 2 ¶ 6309(1)(a)).

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Plaintiff received written notice, retained counsel, and returned a written rebuttal. Am.

Compl. at 19–20, 33. Mr. Larkin was told not to “waste his time” with a rebuttal because the

“[Commanding Officer] had made up his mind.” Id. at 21. He recalls the JAG told him that his

Commanding Officer did not have access to Mr. Larkin’s positive past performance records

when making the decision. Id.

Plaintiff claims he repeatedly asked to be heard before a separation review board but was

denied. Id. at 16. Defendant also denied Plaintiff’s request for disciplinary procedures through

either a court-martial or non-judicial punishment under Article 15 of the Uniform Code of

Military Justice (“UCMJ”). Id. at 17.

On December 23, 2024, Plaintiff was discharged from active duty. Id. at 18; Ex. A at

125. The narrative reason for discharge was the commission of a “Serious Offense” under MCO

1900.16 Ch. 2 ¶ 6210(6)(c). Ex. A at 125. Specifically, Defendant concluded that Mr. Larkin

solicited and used MDMB-4en-PINACA, a synthetic cannabinoid and “a controlled substance

analogue,” in violation of Secretary of the Navy Instruction 5300.28F. Id. at 130. The discharge

was characterized as “General (Under Honorable Conditions)” with a reentry code of “RE-04”—

not recommended for reenlistment. Ex. A at 125–26.

III. Procedural Posture

Mr. Larkin filed his initial Complaint on February 5, 2025, claiming (1) his discharge

violated Marine Corps regulations and his constitutional due process rights by denying him a

hearing and (2) the seizure of his phone constituted a taking under the Fifth Amendment.

Compl. at 32–42, ECF No. 1. Defendant moved to remand the matter to the Department of the

Navy so the BCNR could consider Plaintiff’s claims “in the first instance.” Def.’s First Mot. for

Remand at 1, ECF No. 8.

Plaintiff opposes remand, arguing the BCNR cannot address the challenge to the

constitutionality of his discharge process because the Marine Corps cannot declare its own

regulations unconstitutional. Pl.’s Resp. to Def.’s Mot. for Remand (hereinafter “Pl.’s Resp.”) at

4, ECF No. 9. Mr. Larkin also believes he will be prejudiced by the delay caused by remand and

characterizes the Government’s request to reconsider his claims as “disingenuous.” Id. at 8, 11–

13. He insists that he “deserves his day in Court.” Id. at 13.

The Government contends Mr. Larkin’s constitutional claim should not preclude a

remand to first resolve the procedural claim. Def.’s Reply Supp. Remand (hereinafter “Def.’s

Reply”) at 2–3, ECF No. 11. It also maintains Plaintiff will be no more prejudiced by the delay

from remand proceedings than he would by litigation in this Court. Id. at 4–5.

On April 7, 2025, Mr. Larkin filed a Motion for Emergency Preliminary Injunction

requesting that the Court enjoin Defendant from releasing “derogatory information” related to his

discharge. Pl.’s Mot. for Prelim. Inj. at 2. The Government argues this Court lacks jurisdiction

to award such prejudgment injunctive relief, or in the alternative, Plaintiff has not established the

requirements for a preliminary injunction. Def.’s Resp. to Prelim. Inj. (hereinafter “Def.’s

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Resp.”) at 2–5, ECF No. 12. Plaintiff replies that his requested relief is within the Court’s

statutory jurisdiction, although he “acknowledges that the bifurcated system of remedies within

the federal courts pertaining to military pay cases complicates the question of the Court’s

authority to grant [his] motion.” Pl.’s Reply Supp. Prelim. Inj. (hereinafter “Pl.’s Reply”) at 1–4,

ECF No. 14.

On April 19, 2025, Mr. Larkin filed an Amended Complaint. Am. Compl. The

Amended Complaint removes the taking claim and requests back pay for lost salary, housing

allowance, and military benefits under 37 U.S.C. §§ 204 and 403; an order to void the unlawful

discharge; and a correction of his military records. Id. at 41. The Government filed a Second

Motion for Remand that is “substantially similar” to the first, though it additionally asserts that

the BCNR can consider “due process challenges.” Mot. for Remand at 1 n.1, 4. By Plaintiff’s

request, the Court construes his original opposition to remand as responsive to Defendant’s new

Motion. See Tr. of Status Conference Proceedings (hereinafter “Tr.”) at 35, ECF No. 22. Both

the Motion for Remand and Motion for Emergency Preliminary Injunction are fully briefed and

ripe for review.

IV. Jurisdiction

Plaintiff seeks backpay under 37 U.S.C. §§ 204 and 403 and other equitable relief. Am.

Compl. at 34–41. The Court has jurisdiction over claims for pay under § 204 and the Basic

Allowance for Housing under § 403. Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir.

2003); Sharpe v. United States, 935 F.3d 1352, 1360 (Fed. Cir. 2019). The Court may also grant

Plaintiff’s claims for nonmonetary relief insofar as they are authorized by the Tucker Act. “To

provide an entire remedy and to complete the relief afforded by the [monetary] judgement, the

court may, as an incident of and collateral to any such judgment, issue orders directing

restoration to office or position, placement in appropriate duty or retirement status, and

correction of applicable records.” 28 U.S.C. § 1491(a)(2). For example, the Court may cancel a

plaintiff’s unlawful discharge, reinstate him to active-duty service, and correct his records to

reflect constructive service during the time he was discharged. See Tippett v. United States, 28

Fed. App’x 942, 945 (Fed. Cir. 2001).

V. Discussion

A. The Court Lacks Jurisdiction to Grant Plaintiff’s Motion for a Preliminary

Injunction.

The Court cannot award Mr. Larkin’s request for an “emergency preliminary injunction”

enjoining Defendant from releasing “derogatory information” about him. See Pl.’s Mot. for

Prelim. Inj. at 1–2. Generally, the U.S. Court of Federal Claims may not provide equitable relief.

United States v. King, 395 U.S. 1, 2–3 (1969); Richardson v. Morris, 409 U.S. 464, 465 (1973).

Rather, the Court may only entertain claims for injunctive relief in “statutorily defined

circumstances.” Tetzlaff v. United States, No. 15-161, 2015 WL 7585333, at * 11 (Fed. Cir.

Nov. 25, 2015). The Tucker Act authorizes the Court to “complete the relief” afforded by a

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monetary judgment with “orders directing restoration to office or position, placement in

appropriate duty or retirement status, and correction of applicable records” when such orders are

“incident of and collateral to” the monetary judgment. 28 U.S.C. § 1491(a)(2).

Plaintiff submits the bifurcation of equitable jurisdiction between this Court and the

district courts means he “may not be able to get a complete remedy in any one forum.” Pl.’s

Reply at 1. But he nonetheless asserts the Tucker Act allows the Court to issue injunctions that

are “incident of and collateral to” the judgment. Id. at 2. While the Court may not enjoin his

separation, Plaintiff argues it may enjoin the Government from releasing “disparaging”

information about him because such relief is “ancillary” to the ultimate judgment on the merits.

Id. at 3.

But the words “incident of and collateral to [judgment]” do not create a general category

of equitable relief that the Court may provide. Rather, they describe the circumstances under

which the Court may grant an explicit and limited list of remedies: namely, “orders directing

restoration to office or position, placement in appropriate duty or retirement status, and

correction of applicable records.” 28 U.S.C. § 1491(a)(2). “Preliminary injunctions are not

included in that list.” Sergent’s Mech. Sys., Inc. v. United States, 157 Fed. Cl. 41, 50 (2021)

(citing Tetzlaff, 2015 WL 7585333, at *11; Cooper v. United States, 860 F. App'x 742, 744 (Fed.

Cir. 2021)). Neither are injunctions preventing the release of derogatory information.

Even if the Court construed the requested injunction as the type of equitable relief

permitted by the Act, it may not grant such relief before final judgment. The Court cannot order

injunctive relief before a monetary judgment because the relief would not “complete” or be

“collateral to” the final judgment. Sergent’s Mech. Sys., Inc., 157 Fed. Cl. at 50–51 (citing

James v. Caldera, 159 F3d 573, 580 (Fed. Cir. 1998)). Therefore, the Court cannot grant

Plaintiff’s requested injunction, “both because such relief is not in the short list of allowable

equitable relief, and because a preliminary injunction, by definition, cannot be ‘incident of and

collateral to’ a final money judgment.” Id. at 48 (citing 28 U.S.C. § 1492(a)(2)).

B. The Court Declines to Remand Plaintiff’s Claims to the Board for Correction

of Naval Records.

The Tucker Act authorizes the Court “to remand appropriate matters to any

administrative or executive body or official with such direction as it may deem proper and just.”

28 U.S.C. § 1491(a)(2). Likewise, the Court’s rules provide, “[i]n any case within its

jurisdiction, the court, on motion or on its own, may order the remand of appropriate matters to

an administrative or executive body or official.” Rules of the Court of Federal Claims

(hereinafter “RCFC”) 52.2(a).

When the Government requests a remand to reconsider its previous position without

confessing error, “the reviewing court has discretion over whether to remand.” SKF USA Inc. v.

United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001). Here, the Government confesses no error

and requests a remand to allow the BCNR to consider Plaintiff’s challenge to his discharge “in

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the first instance.” Mot. for Remand at 1–2. Defendant acknowledges “the decision to remand is

within the Court’s sound discretion.” Id. at 2.

In military pay cases, the Tucker Act gives the Court “flexibility to require exhaustion of

correction board remedies in cases in which the benefits of exhaustion are applicable, but to

proceed directly to adjudication if the court concludes that resort to the correction board would

not serve a useful purpose.” Martinez, 333 F.3d at 1310. If the Government’s concern is

“substantial and legitimate, a remand is usually appropriate.” SKF USA Inc., 254 F.3d at 1029.

The Court of Federal Claims has previously applied a three-part test to determine whether

a request for remand is “substantial and legitimate.” See, e.g., Keltner v. United States, 148 Fed.

Cl. 552, 564 (2020); Lancaster v. United States, No. 22-267, 2022 WL 3100430, at *2 (Fed. Cl.

Aug. 4, 2022); Trace Sys. Inc. v. United States, No. 22-404, 2022 WL 2963486, at *3 (Fed. Cl.

July 26, 2022). The Government’s concerns are substantial and legitimate where (1) it provides

a “compelling justification for its remand request,” (2) “the need for finality does not outweigh

the [Government’s] justification for voluntary remand,” and (3) “the scope of [its] remand

request is appropriate.” Keltner, 148 Fed. Cl. at 564 (quoting Ad Hoc Shrimp Trade Action

Comm. v. United States, 882 F. Supp. 2d 1377, 1381 (Ct. Int’l Trade 2013)). In weighing each

prong, the Court may consider other factors, including “the timing of the government’s motion,

its representations regarding the reasons for a remand, the plaintiff’s factual allegations viewed

through the prism of the particular legal issues involved, and the overall fitness and completeness

of the administrative record.” Id. at 563

The Court has applied this test to deny a request for remand. For example, in Keltner the

Government requested a voluntary remand to the Air Force Board for Correction of Military

Records so that it could “expound upon its rationale for denying plaintiff’s request.” 148 Fed.

Cl. at 564 (quotation omitted). Because the Air Force did not “profess any intention to

reconsider” its decision—intending instead to merely “bolster” it—the Court found its reasons

for remand were not substantial and legitimate. Id. at 565–66. The Keltner Court noted that

“‘courts almost always issue voluntary remands to government agencies,’ creating a virtual

‘presumption’ that such motions are proper.” Id. at 556–57 (quoting Joshua Revesz, Voluntary

Remands: A Critical Reassessment, 70 Admin. L. Rev. 361, 364 (2018)). Nevertheless, it

“decline[d] to adhere to any such presumption.” Id. at 577.

“The central holding of Keltner . . . is that government motions for a voluntary remand to

an agency for additional consideration should not simply be granted in a perfunctory manner.”

Rahman, 149 Fed. Cl. at 690. Instead, “such motions should be treated as with any other motion

affecting the substantial rights of the plaintiff, by subjecting the government’s position to careful

analysis.” Id. In Keltner, the Court did not rule on a motion for remand to an agency for initial

consideration. But regardless of their posture, motions for remand must be subject to careful

analysis, and this Court declines to apply a presumption that they are proper. Instead, the Court

determines the Government’s justifications for remand are not “substantial and legitimate,” and a

remand would serve no “useful purpose.” See SKF USA Inc., 254 F.3d at 1029; Martinez, 333

F.3d at 1310.

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1. Defendant Has Not Provided a Compelling Justification for Remand.

The Government offers multiple justifications for a remand to the BCNR. First and

foremost, a “remand would enable the BCNR, the highest level of administrative review within

the Department of the Navy, to consider Mr. Larkin’s challenge to his discharge for the first

time.” Mot. for Remand at 2–3. The Government also argues the BCNR is the superior forum

for Plaintiff’s claims because the Board can grant broad relief, “including on equitable grounds

that this Court may not consider.” Id. at 5. Finally, the Government invokes expediency and

efficiency, arguing “a remand now may well ‘lead to a more efficient means of resolving

plaintiff’s claim promptly.’” Id. at 6 (quoting Culpepper v. United States, No. 22-410, 2023 WL

124864, at *4 (Fed. Cl. Jan. 6, 2023)). And even if the Board granted partial relief, “remand

would still narrow the issues that remain for this Court to resolve.” Id. at 5. The Court does not

find these reasons compelling.

a. Plaintiff’s Decision to Initially Bring his Claims to the Court of

Federal Claims Is Not a Compelling Reason to Remand.

It may often be appropriate to grant a request to remand for initial review by a military

correction board but there should be no presumption that remand is proper. “[S]ince their

creation, the correction boards have been regarded as a permissive administrative remedy,” and

“an application to a correction board is therefore not a mandatory prerequisite to filing a Tucker

Act suit challenging [a] discharge.” Martinez, 333 F.3d at 1304 (first citing Richey v. United

States, 322 F.3d 1317, 1325 (Fed. Cir. 2003); and then citing Heisig v. United States, 719 F.2d

1153, 1155 (Fed. Cir. 1983)). It is well established—and Defendant concedes—that “there is

generally no requirement that a plaintiff exhaust administrative remedies with the applicable

correction board before filing suit in this Court.” Mot. for Remand at 3. See also Antonellis v.

United States, 723 F.3d 1328, 1333 (Fed. Cir. 2013) (citing Heisig, 719 F.2d at 1155).

Still, “typically, if suit is filed just in the [Court of Federal Claims], that court will require

resort to a Corrections Board while the matter remains pending in that court.” Antonellis, 723

F.3d at 1333 (quoting Richey, 322 F.3d at 1323) (alteration in original). As Defendant points

out, “this Court has repeatedly found substantial and legitimate reasons to remand so that the

board may conduct . . . review in the first instance and reconsider the challenged action.” Mot.

for Remand at 3 (first citing Lohmann v. United States, 154 Fed. Cl. 355, 359–60 (2021); then

citing Wolfing v. United States, 144 Fed. Cl. 516, 518 (2019); then citing Culpepper, 2023 WL

124864, at *3; and then citing Lancaster, 2022 WL 3100430, at *1).

But this pattern does not mean the Court should always remand to a correction board for

review in the first instance. Otherwise, the Court imposes a de facto requirement that plaintiffs

exhaust their administrative remedies before a correction board, which the Court may not do—

either explicitly or implicitly. See Clyde v. United States, 80 U.S. 38, 39 (1871); Soriano v.

United States, 352 U.S. 270, 276 (1957). In Clyde, the U.S. Supreme Court struck down a court

rule created by the then-nascent Court of Claims requiring parties to present their claims to an

executive department before suing in the Court. 80 U.S. at 39. The rule improperly “required

the claimant to do what the acts giving the court jurisdiction did not require him to do before it

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would assume jurisdiction of his case.” Id. And in Soriano, the Supreme Court held the Tucker

Act does not impose an administrative exhaustion requirement, admonishing that “limitations

and conditions upon which the Government consents to be sued must be strictly observed and

exceptions thereto are not to be implied.” 352 U.S. at 276. “[T]he Tucker Act strictly define[s]

the class of cases in which Congress consented to suit against the sovereign,” and “courts [are]

not empowered to engraft additional limitations on the Court of Claims’ exercise of its

jurisdiction.” Martinez, 333 F.3d at 1306 (citing Soriano, 352 U.S. at 276). Just as the Court

cannot skirt its jurisdiction with a court rule, it may not engraft additional limitations on its

jurisdiction by reflexively remanding claims to a correction board in the first instance.

A reflexive remand to the BCNR distorts the purpose of both the Tucker Act and the

Legislative Reorganization Act of 1946, which created the military correction boards.

Previously, servicemembers could bring monetary claims to the Court under the Tucker Act or to

Congress through private bills. Martinez, 333 F.3d at 1307. Congress created the correction

boards to relieve itself of the burden to hear private bills. Id. at 1306–07 (first citing the

Legislative Reorganization Act of 1946, Pub. L. No. 79-601, §§ 131, 207, 60 Stat. 812, 831, 837;

then citing S. Rep. No. 82-893 (1951); and then citing 40 Op. Att’y Gen. 504, 505 (1947)). But

the boards’ purpose is not to relieve any burden upon the Court. “When Congress authorized the

creation of correction boards . . . , it did not suggest that service members would be barred from

obtaining relief under the Tucker Act until and unless they had sought relief from the pertinent

correction board.” Id. at 1307.

Furthermore, an expectation that this Court will presumptively redirect plaintiffs to

correction boards could incentivize the military to forgo evidentiary hearings before discharge,

knowing there will be a second chance to offer a hearing. While the U.S. Armed Forces are not

always required to conduct evidentiary hearings before a discharge, constitutional due process

may require hearings in certain cases. See Anderson v. United States, 111 Fed. Cl. 572, 588

(2013). For example, stigma occasioned by a discharge triggers “due process rights to notice and

a hearing.” Id. at 589; Holley v. United States, 124 F.3d 1462, 1470 (Fed. Cir. 1997) (confirming

that “when an action is stigmatizing there is an enhanced right to a hearing”). Indeed, in this

case Plaintiff alleges his drug-related discharge is “stigmatizing,” but the Marine Corps denied

several requests for a pre-separation hearing. Am. Compl. at 16–17, 36–37. Only now before

the Court does Defendant request to send the case to the BCNR, invoking case law that a

“proceeding before the BCNR provides due process.” Mot. to Remand at 4 (citing Volk v.

United States, 111 Fed. Cl. 313, 331–32 (2013)).

To be sure, the Government’s professed intent for the BCNR to freshly consider Mr.

Larkin’s discharge is a more legitimate reason to remand than the desire to “expound upon” a

previous decision. See Keltner, 148 Fed. Cl. at 567–68. But this alone is not a basis for the

Court to remand Plaintiff’s claims to the BCNR. Instead, a compelling justification would

convince the Court that a remand to the Board serves a “useful purpose.” See Martinez, 333 F.3d

at 1310. Here, it is not apparent what useful purpose a remand to the BCNR would serve, or how

it would benefit the fair and efficient resolution of Plaintiff’s claims.

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b. The Court Is Competent to Assess the Factual Conclusions and

Procedures Relied Upon in Plaintiff’s Discharge.

Plaintiff alleges his discharge violated applicable military regulations and his

constitutional due process rights. Am. Compl. at 34–40. Defendant points out the BCNR can

consider both kinds of challenges and has “unique familiarity” with the required procedures for

separation. Mot. for Remand at 4–5. The Government also argues that, should Plaintiff appeal

an unfavorable decision by the BCNR, “the Court would have the benefit of an explanation from

the Department of the Navy’s highest administrative review body as to why Mr. Larkin was not

entitled to particular relief.” Id. at 5 (citing SKF USA, Inc., 254 F.3d at 1029).

The military’s familiarity with its own discharge procedures may at times support a

remand. But procedural expertise bears little weight here when viewing Mr. Larkin’s “factual

allegations . . . through the prism of the particular legal issues involved.” See Keltner, 148 Fed.

Cl. at 564. Mr. Larkin’s discharge does not present a particularly “complex” or “subtle” military

judgment. See, e.g., Gilligan v. Morgan, 413 U.S. 1, 10 (1973). Mr. Larkin seeks review of the

Marine Corps’ factual conclusion that he used and distributed a prohibited drug. See Am.

Compl. at 34–40. And the facts here are static; the Government is limited to the record on which

the separation authority relied to discharge Plaintiff.

The Notification of Separation Proceedings plainly states the factual findings and

regulations governing the decision to discharge Plaintiff. Ex. A at 132. The Marine Corps

discharged Plaintiff under MCO 1900.16 Ch. 2 ¶ 6210(6)(c) for “Misconduct,” specifically the

“Commission of a Serious Offense.” Id. The serious offenses in question are the violation and

solicitation to violate Enclosure 5, paragraph 1.c of Secretary of the Navy Instruction 5300.28F,

which prohibits the “wrongful use” and “distribution” of “controlled substance analogues

(designer drugs).” Id. The Notification accuses Plaintiff of “using” and “wrongfully distributing

MDMB-4en-PINACA,” which it says is a “controlled substance analogue.” Id.

The Court has jurisdiction to review whether Plaintiff’s discharge was “arbitrary,

capricious, or in bad faith, or unsupported by substantial evidence, or contrary to law, regulation,

or mandatory published procedure of a substantive nature by which [Plaintiff] has been seriously

prejudiced.” Heisig, 719 F.2d at 1156. The central issue with the discharge is whether the

separating authority properly concluded that Mr. Larkin used or distributed MDMB-4en-

PINACA. Plaintiff claims the separating authority failed to make this finding by a

“preponderance of the evidence,” as required by regulation. Am. Compl. at 28 (citing MCO

1900.16 Ch. 2 ¶ 6309(1)(a)). The Board’s familiarity with military procedure does not render it

a superior forum for reviewing that factual issue.

The Court must review the separating authority’s decision based on “the administrative

record already in existence, not some new record made initially in the reviewing court.” Walls v.

United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009) (quoting Fla. Power & Light Co. v. Lorion,

470 U.S. 729, 743 (1985)). Similarly, the BCNR “is not an investigative body,” but reviews

naval records already in existence. 32 C.F.R. § 723.2(b). If the case required the development

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or completion of the administrative record, a remand might be the best course. Indeed, this

Court has previously remanded to a correction board to “aid the defendant in compiling and

reviewing the administrative record” and prevent the Court’s review of an incomplete record.

See Lancaster, 2022 WL 3100430, at *3 (remanding because the plaintiff’s complaint attached

no supporting documentation, alleged multiple claims relating to multiple military offices, and

the Government confessed an inability to compile the appropriate documents “despite counsel’s

best efforts” to retrieve them from the relevant offices).

But here, Defendant raises no concerns about compiling the administrative record. See

generally Mot. for Remand. In a status conference before the Court, the Government suggested

that the relevant record to review is the “administrative separation package,” which is already

complete and includes the notification of the bases for separation, the investigation report,

Plaintiff’s military profile, his rebuttal materials, a legal officer’s opinion, and the separating

authority’s final decision. Tr. at 9–10. And the Amended Complaint already attaches the

supporting documents the Marine Corps gave Mr. Larkin to write his rebuttal, including the

Notification of Separation Proceedings, administrative remarks advising him of the charges, and

the CID’s full investigation report. Tr. at 22. See also Am. Compl. at 81–124, 130–133. The

Amended Complaint also attaches the final recommendation for administrative separation. Am.

Compl. at 125–129. At this stage, it appears the parties can provide the Court with a complete

record.

The Government further argues remand is appropriate “because the BCNR has uniquely

broad authority to consider not only any legal or factual errors alleged, but—unlike this Court—

also to consider the equities and correct any ‘injustice,’ and order full relief.” Mot. for Remand

at 3 (quoting 10 U.S.C. § 1552(a)(1)). Even if “the parties proceeded to litigate the matter and

Mr. Larkin ultimately prevailed,” the Government asserts “the likely remedy still would be ‘to

remand to the agency for additional investigation or explanation.’” Id. at 5 (first quoting Fla.

Power & Light Co., 470 U.S. at 744; and then citing Strand v. United States, 706 F. App’x 996,

1000–01 (Fed. Cir. 2017)).

But here, the Board’s power to consider equities does not weigh in favor of remand. As

noted, the resolution of Plaintiff’s claims hinges on a review of the Marine Corps’ determination

that he used and distributed MDMB-4en-PINACA, a task as suitable for the Court as a correction

board. Furthermore, as discussed above, certain equitable relief is available to discharged

servicemembers at this Court. “[I]ncident of and collateral to” any judgment in Plaintiff’s favor,

the Court may “issue orders directing restoration to office or position, placement in appropriate

duty or retirement status, and correction of applicable records.” 28 U.S.C. § 1491(a)(2). See

also Tippett, 28 Fed. App’x at 945 (awarding plaintiff cancellation of his discharge,

reinstatement in the Army, and correction of records to reflect active duty service). Finally, a

remand to the BCNR will not assist with additional investigation because it is “not an

investigative body.” 32 C.F.R. § 723.2(b). See also Pope v. United States, 172 Fed. Cl. 149, 152

n.1 (2024) (noting the “curious argument” that the Court should have remanded for “additional

investigation” to the BCNR, as it is not an investigative body).

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2. Finality and Efficiency Weigh Against Remand.

The Government argues that, should the Board award complete relief to Plaintiff, a

remand may “lead to a more efficient means of resolving the plaintiff’s claim promptly.” Mot.

for Remand at 6 (quoting Culpepper, 2023 WL 124864, at *4). But the mere possibility the

Board may side with Plaintiff does not inherently fulfill the interest of judicial efficiency. If it

did, remand would always be the more efficient choice. This Court declines to adopt a general

assumption “that voluntary remands do not erode the rights of private parties to the litigation, but

rather save those parties time and resources.” Revesz, Voluntary Remands at 402. Instead, the

Court looks for specific reasons that a remand may more efficiently resolve the case at hand,

especially where the parties can already produce a record that is “sufficiently ripe for judicial

review.” See Keltner, 148 Fed. Cl. at 566.

Defendant has not provided compelling reasons. It cites prior remand orders where the

Court found “substantial and legitimate reasons to remand so that the board may conduct review

in the first instance,” but it does not analogize further. See Mot. for Remand at 3 (citing Lohman,

154 Fed. Cl. at 359–60; Wolfing, 144 Fed. L. at 518; Culpepper, 2023 WL 124864, at *3;

Lancaster, 2022 WL 33100430, at *1). In decisions to remand to a correction board in the first

instance, the Court has typically found that the board’s review will benefit the final resolution of

claims. Lohman, 154 Fed. Cl. at 360 (remanding to “limit the issues before the court”); Wolfing,

144 Fed. Cl. at 516 (remanding to benefit from “the Army’s expertise . . . and access to

interpretations of the relevant [regulatory] provisions”); Culpepper, 2023 WL 124864, at *1

(remanding because the BCNR could simultaneously correct records and “coordinate with the

appropriate agencies to provide the requisite monetary relief”).

A remand here does not promise the same potential benefits found in other cases. There

is no need to “narrow the issues that remain for this Court” because the issues are already

sufficiently narrow. See Mot. for Remand at 5. Nor do Mr. Larkin’s claims present especially

complex damages calculations. See Am. Compl. at 41 (requesting damages for back pay for a

single individual). Instead, the pressing task at hand is to review the propriety of Plaintiff’s

discharge.

Finally, the Government seemingly belies its stated expectation for an efficient resolution

on remand by requesting the maximum six-month remand period allowed by Court rules. See

Mot. for Remand at 6; RCFC 52.2(b)(1)(B). While it is well within the Court’s discretion to

grant less time than the Government requests, see Culpepper, 2023 WL 124864, at *4, it is not

required to address timeliness concerns by setting aggressive remand schedules. Plaintiff has

properly brought claims before the Court—the Court chooses to hear them.

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VI. Conclusion

For the reasons above, Plaintiff’s Motion for an Emergency Preliminary Injunction and

Defendant’s Motion for a Voluntary Remand are DENIED. ECF Nos. 10 & 17. The parties

shall file a Joint Status Report by July 7, 2025 updating the Court on the status of settlement

discussions and their respective positions on a voluntary referral of this matter to the Court’s

Alternative Dispute Resolution program. If either party reports that settlement discussions are

not productive, the Report shall include a joint motion for entry of a scheduling order pursuant to

Appendix K of the Court’s rules.

IT IS SO ORDERED.

s/ Carolyn N. Lerner

CAROLYN N. LERNER

Judge

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