Lippmann v. United States

In the United States Court of Federal Claims

No. 15-192C

Filed June 13, 2016

FOR PUBLICATION

)

MARCUS RANDOLPH LIPPMANN, )

)

Plaintiff, )

RCFC 12(b)(6); RCFC 12(d); RCFC 52.1;

)

RCFC 56; the Military Pay Act, 37 U.S.C.

v. )

§ 204; 10 U.S.C. § 1169; 14 U.S.C. § 357.

)

THE UNITED STATES, )

)

Defendant. )

)

Raymond Jewell Toney, Counsel of Record, Law Office of Raymond J. Toney, Logan,

UT, for plaintiff.

Delisa M. Sánchez, Trial Attorney, Martin F. Hockey, Jr., Assistant Director, Robert E.

Kirschman, Jr., Director, and Benjamin C. Mizer, Principal Deputy Assistant Attorney General,

Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington,

DC; and LCDR Christopher L. Jones, Deputy Office Chief, Office of Claims and Litigation,

United States Coast Guard, for defendant.

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

In this military pay action, plaintiff, Marcus Randolph Lippmann, challenges the United

States Coast Guard’s decision to involuntarily retire him from active duty service pursuant to the

recommendation of a Career Retention Screening Panel (“CRSP”). The government has moved

to dismiss plaintiff’s complaint for failure to state a claim upon which relief may be granted,

pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims

(“RCFC”). In the alternative, the government has moved for judgment upon the administrative

record, pursuant to RCFC 52.1. The Court treats the government’s motion for judgment upon

the administrative record as one for summary judgment pursuant to RCFC 56. Plaintiff has also

moved to supplement the administrative record, pursuant to RCFC 52.1.

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In addition, plaintiff has moved for summary judgment, pursuant to RCFC 56. The

government has also moved to strike certain documents filed in support of plaintiff’s motion for

summary judgment and for leave to file a sur-reply to plaintiff’s reply in support of his motion

for summary judgment, pursuant to RCFC 7(b).

For the reasons set forth below, the Court DENIES the government’s motion to dismiss;

GRANTS the government’s motion for summary judgment on the issue of whether plaintiff’s

involuntary retirement was lawful under 10 U.S.C. § 1169 and DENIES plaintiff’s cross-motion

for summary judgment on that issue; GRANTS the government’s motion to file a sur-reply to

plaintiff’s reply in support of his motion for summary judgment; DENIES the government’s

motions to strike; DENIES plaintiff’s motion to supplement the administrative record as moot;

and HOLDS in ABEYANCE the parties’ cross-motions for summary judgment on the question

of whether plaintiff is entitled to a hearing before an Enlisted Personnel Board pursuant to 14

U.S.C. § 357.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background1

In this military pay action, plaintiff, Marcus Randolph Lippmann, challenges the

lawfulness of the United States Coast Guard’s (“Coast Guard”) decision to involuntarily retire

him from active duty service pursuant to the recommendation of the Coast Guard’s 2013 Career

Retention Screening Panel (“CRSP”). Specifically, plaintiff alleges that the Coast Guard’s

retirement decision was unlawful because: (1) the Secretary of the Department of Homeland

Security (“Secretary”) did not order a reduction in force for Coast Guard personnel during the

relevant time period, and (2) plaintiff is entitled to the rights and procedures of an Enlisted

Personnel Board (“EPB”) in the absence of a reduction in force order.2 Compl. at ¶¶ 56-68.

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The facts recited in this Memorandum Opinion and Order are taken from plaintiff’s complaint

(“Compl.”), the government’s motion to dismiss or, in the alternative, motion for judgment upon the

administrative record (“Def. Mot.”) and accompanying appendix (“Def. App.”), the documents styled as

the “administrative record” filed by the government (“Def. 2nd App.”), and plaintiff’s statement of

material facts not in genuine dispute (“Pl. Statement”). Except where otherwise noted, the facts recited

herein are undisputed.

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Since commencing this action, plaintiff has withdrawn his claim that he should not have been

involuntarily retired because he did not meet the criteria for involuntary retirement. Pl. Memo. at 18.

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Plaintiff has a distinguished record of military service. Plaintiff enlisted in the Coast

Guard on September 11, 1989, and he achieved the rank of Master Chief Petty Officer, Grade E-

9. Id. at ¶¶ 8-9. During his military career, plaintiff received numerous awards and

commendations. Id. at ¶ 12, Ex. 1. The Coast Guard involuntarily retired plaintiff from active

duty service effective September 1, 2014. Id. at ¶ 33.

1. Career Retention Screening Panels

As background, Career Retention Screening Panels are a workforce shaping tool

established by the Coast Guard to address workforce flow and to provide greater opportunity for

advancement of high performing junior enlisted personnel. Compl. at Ex. 4; see also Def. 2nd

App. at 1; Pl. Statement at ¶ 7. In 2010, then-Commandant of the Coast Guard, Admiral R. J.

Papp, Jr., formally requested authorization to conduct a CRSP from former Secretary of

Homeland Security Janet Napolitano. Def. 2nd App. at 1-2. The memorandum authorizing the

2010 CRSP states that the CRSP “is required to address high retention and its adverse impact on

workforce flow.” Id. at 1. The memorandum also states that, “[t]he legal authority to conduct

such a panel derives from Title 14, [United States] Code Section 357(j) and from Title 10,

[United States] Code Section 1169 . . . . Per Title 14 [United States] Code, Section 357(j), the

Secretary of Homeland Security must provide authorization for involuntary retirements without a

Board’s action.” Id.

The Secretary signed the authorization memorandum for the 2010 CRSP on September

21, 2010, and the 2010 CRSP convened on September 27, 2010. Id. at 2, 11. The Coast Guard

has subsequently convened CRSPs in 2011, 2012, 2013, and 2014. Def. App. at 74-75. The

Coast Guard has involuntarily retired 832 enlisted servicemembers through these CRSPs since

2010. Id.; Pl. Statement at ¶ 19.

2. Plaintiff’s Involuntary Retirement And Appeal

Specifically relevant to this dispute, in a memorandum dated December 5, 2012, Admiral

Papp requested authorization from the Secretary to “hold an Active Duty Enlisted Career

Retention Screening Panel (CRSP) in 2013.” Def. 2nd App. at 13; Pl. Statement at ¶ 1. Admiral

Papp stated in the memorandum that the CRSP, if authorized, would be convened pursuant to

authority codified in title 10, United States Code, section 1169 and title 14 United States Code,

section 357(j). Def. 2nd App. at 13. He further stated that, “[y]our endorsement of this memo

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will provide the Coast Guard with the legal authority required to conduct the CRSP during

2013.” Id. at 13-14.

Secretary Napolitano approved this request on December 19, 2012, and the Coast Guard

convened the 2013 CRSP on May 8, 2013. Id. at 14; Compl. at Ex. 6. The 2013 CRSP reviewed

399 candidate records and selected 194 servicemembers for involuntary separation from the

Coast Guard, including plaintiff. Def. 2nd App. at 146.

The 2013 CRSP selected plaintiff for involuntary retirement on August 21, 2013. Compl.

at ¶ 29; Def. 2nd App. at 140. On August 30, 2013, plaintiff appealed the 2013 CRSP’s

decision. Compl. at Ex. 7; see also Def. 2nd App. at 148-50. In that appeal, plaintiff argued that

the CRSP should reconsider its decision, because the members of the 2013 CRSP may not have

considered certain documents that should have been part of plaintiff’s service record. Compl. at

Ex. 7; see also Def. 2nd App. at 148-50. The appeal panel denied plaintiff’s appeal on

September 23, 2013. Def. 2nd App. at 154. On November 18, 2013, plaintiff resubmitted his

appeal. Compl. at ¶ 31, Ex. 8. On November 19, 2013, the Coast Guard informed plaintiff that

his resubmission would not be considered by the appeal panel. Id. at ¶ 32, Ex. 8.

On November 27, 2013, plaintiff acknowledged his retirement date of September 1, 2014.

Id. at ¶ 33, Ex. 9. And so, plaintiff retired from active duty with the Coast Guard effective

September 1, 2014. Id. at ¶ 33.

B. Procedural Background

Plaintiff filed the complaint in this matter on March 2, 2015. See generally Compl. On

June 30, 2015, the government moved to dismiss the complaint for failure to state a claim upon

which relief may be granted, pursuant to RCFC 12(b)(6) or, in the alternative, for judgment upon

the administrative record, pursuant to RCFC 52.1. See generally Def. Mot. On the same date,

the government filed an appendix to its motion to dismiss and a collection of documents entitled

“administrative record.” See generally Def. App.; Def. 2nd App.

On August 28, 2015, plaintiff filed a motion for summary judgment and his opposition to

the government’s motion to dismiss. See generally Pl. Mot. Plaintiff also filed four attachments

to his motion, including his declaration and a statement of material facts not in dispute. See Pl.

Memo.; Pl. App.; Decl. of Marcus Randolph Lippmann; Pl. Statement. On November 4, 2015,

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the government filed a reply in support of its motion to dismiss or, in the alternative, for

judgment upon the administrative record, and a response to plaintiff’s motion for summary

judgment. See generally Def. Rep. On the same date, the government also filed a motion to

strike plaintiff’s declaration and certain other documents that plaintiff included in the appendix

to his motion for summary judgment. See generally Mot. to Strike.

On January 5, 2016, plaintiff filed a response to the government’s motion to strike and a

reply in support of his motion for summary judgment, as well as an appendix containing

additional documents. See generally Pl. Rep.; Pl. 2nd App. Thereafter, on January 15, 2016, the

government filed a reply in support of its motion to strike. See generally Def. Rep. to Mot. to

Strike. On February 17, 2016, the government filed a second motion to strike certain documents

contained in the appendix to plaintiff’s January 5, 2016 reply in support of his motion for

summary judgment and, in the alternative, a motion for leave to file a sur-reply to plaintiff’s

reply in support of his motion for summary judgment. See generally 2nd Mot. to Strike; Sur-

Reply.

On March 4, 2016, plaintiff filed a response to the government’s second motion to strike

or, in the alternative, for leave to file a sur-reply. See generally Pl. Resp. to. 2nd Mot. to Strike.

On March 17, 2016, the government filed a reply in support of its second motion to strike. See

generally Def. Rep. to 2nd Mot. to Strike. Lastly, on February 22, 2016, the government filed a

notice to inform the Court that the United States Congress had enacted an amendment to 14

U.S.C. § 357 on February 8, 2016. Def. Notice, Feb. 22, 2016. These matters having been fully

briefed, the Court decides the pending motions.

III. LEGAL STANDARDS

A. Jurisdiction

The Court’s jurisdiction is defined by the Tucker Act, 28 U.S.C. § 1491, which grants

jurisdiction over claims:

against the United States founded either upon the Constitution, or any Act of

Congress or any regulation of an executive department, or upon any express or

implied contract with the United States, or for liquidated or unliquidated damages

in cases not sounding in tort.

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28 U.S.C. § 1491(a)(1). Because the Tucker Act “does not confer any substantive rights upon a

plaintiff,” a plaintiff also “must establish an independent substantive right to money damages

from the United States–that is, a money-mandating source within a contract, regulation, statute or

Constitutional provision–in order for the case to proceed.” Volk v. United States, 111 Fed. Cl.

313, 323 (2013) (citing Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1306 (Fed. Cir.

2008)). In this regard, the Military Pay Act is a money-mandating statute, and the Court

possesses jurisdiction to consider claims brought pursuant to that act. 37 U.S.C. § 204; Miller v.

United States, 119 Fed. Cl. 717, 729-30 (2015) (“Claims for back pay based on the Military Pay

Act are generally considered to be within the jurisdiction of this court.”) (citing Metz v. United

States, 466 F.3d 991, 998 (Fed. Cir. 2006)).

B. RCFC 12(b)(6) And Justiciability

When deciding a motion to dismiss based upon failure to state a claim upon which relief

may be granted pursuant to RCFC 12(b)(6), this Court must assume that all undisputed facts

alleged in the complaint are true and draw all reasonable inferences in the non-movant’s favor.

Erickson v. Pardus, 551 U.S. 89, 94 (2007); RCFC 12(b)(6). And so, to survive a motion to

dismiss pursuant to RCFC 12(b)(6), a complaint must contain facts sufficient to “state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see

also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When the complaint fails to “state a claim to

relief that is plausible on its face,” the Court must dismiss the complaint. Iqbal, 556 U.S. at 678

(citation omitted). On the other hand, “[w]hen there are well-pleaded factual allegations, a court

should assume their veracity” and determine whether it is plausible, based upon these facts, to

find against defendant. Id. at 679.

A claim must also be justiciable to survive a motion to dismiss pursuant to RCFC

12(b)(6). See Houghtling v. United States, 114 Fed. Cl. 149, 156–57 (2013). In this regard, the

United States Supreme Court has held that justiciability depends upon “whether the duty asserted

can be judicially identified and its breach judicially determined, and whether protection for the

right asserted can be judicially molded.” Baker v. Carr, 369 U.S. 186, 198 (1962); see also

Murphy v. United States, 993 F.2d 871, 872 (Fed. Cir. 1993). And so, a controversy is

justiciable only if “it is ‘one which the courts can finally and effectively decide, under tests and

standards which they can soundly administer within their special field of competence.’” Voge v.

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United States, 844 F.2d 776, 780 (Fed. Cir. 1988) (quoting Greene v. McElroy, 254 F.2d 944,

953 (D.C. Cir. 1958), rev’d on other grounds, 360 U.S. 474 (1959)); see also Antonellis v.

United States, 723 F.3d 1328, 1334 (Fed. Cir. 2013); Adkins v. United States, 68 F.3d 1317, 1322

(Fed. Cir. 1995).

The question of justiciability is frequently at issue when courts review military activities,

and courts have often held that decisions made by the military are “beyond the institutional

competence of courts to review.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002)

(“Because ‘decisions as to the composition, training, equipping, and control of a military force

are essentially professional military judgments,’ the substance of such decisions, like many other

judgments committed to the discretion of government officials, is frequently beyond the

institutional competence of courts to review.”) (quoting Gilligan v. Morgan, 413 U.S. 1, 10

(1973)); Orloff v. Willloughby, 345 U.S. 83, 93-94 (1953) (“[J]udges are not given the task of

running the Army.”); see also Murphy, 993 F.2d at 872; Voge, 844 F.2d at 780. The United

States Court of Appeals for the Federal Circuit has also recognized that military decisions are

justiciable only to the extent that the military’s discretion is limited and Congress has provided

“tests and standards” for the Court to apply. Murphy, 993 F.2d at 873 (“Unless such a test or

standard is provided, courts must abstain.”).

Nonetheless, even when the merits of a military personnel decision are nonjusticiable, the

process by which the decision has been made may be subject to judicial review. Adkins, 68 F.3d

at 1323; Murphy, 993 F.2d at 873. And so, if the military chooses to introduce its own

procedural limits, the Court may review any violations of such limits even if the underlying

decision is nonjusticiable. Murphy, 993 F.2d at 873. In such circumstances, the Court “merely

determines whether the procedures were followed by applying the facts to the statutory or

regulatory standard.” Id.

C. RCFC 56

A grant of summary judgment is appropriate when the pleadings, affidavits and

evidentiary materials filed in a case reveal that “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a); see Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Biery v. United States, 753 F.3d 1279, 1286

(Fed. Cir. 2014). A dispute is “genuine” when “the evidence is such that a reasonable jury could

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return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. A fact is “material” if it

could “affect the outcome of the suit under the governing law . . . .” Id. In resolving motions for

summary judgment, the Court will not make credibility determinations and will draw all

inferences ‘“in the light most favorable to the party opposing the motion.”’ Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962)). The Court must “determine whether there is a genuine

issue for trial.” Anderson, 477 U.S. at 249; Agosto v. INS, 436 U.S. 748, 756 (1978). And so,

the Court may only grant summary judgment when “the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party.” Matsushita, 475 U.S. at 587.

The above standard also applies when the Court considers cross-motions for summary

judgment. Principal Life Ins. Co. & Subsidiaries v. United States, 116 Fed. Cl. 82, 89 (2014);

see also Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010). And so, when both

parties move for summary judgment, ‘“the court must evaluate each party’s motion on its own

merits, taking care in each instance to draw all reasonable inferences against the party whose

motion is under consideration.”’ Abbey v. United States, 99 Fed. Cl. 430, 436 (2011) (quoting

Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)).

D. RCFC 52.1 And Supplementing The Administrative Record

Unlike a summary judgment motion under RCFC 56, the existence of genuine issues of

material fact do not preclude a grant of judgment upon the administrative record under RCFC

52.1. Tech. Sys., Inc. v. United States, 98 Fed. Cl. 228, 242 (2011). Rather, the Court’s inquiry

is whether, “given all the disputed and undisputed facts, a party has met its burden of proof based

on the evidence in the record.” A&D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131

(2006); see also Bannum v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005).

In reviewing challenges to military corrections board decisions under RCFC 52.1, the

Court is “‘limited to determining whether a decision of the [c]orrection [b]oard is arbitrary,

capricious, unsupported by substantial evidence, or contrary to applicable statutes and

regulations.’” Melendez Camilo v. United States, 642 F.3d 1040, 1044 (Fed. Cir. 2011) (quoting

Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983)); see also Volk, 111 Fed. Cl. at 325

(citing Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992)). “Thus, correction board

decisions ‘may be reviewed for failure to correct plain legal error committed by the military,’

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including ‘the military’s violation of statute, or regulation, or published mandatory procedure, or

unauthorized act.’” Volk, 111 Fed. Cl. at 325 (quoting Dodson v. United States, 988 F.2d 1199,

1204 (Fed. Cir. 1993)).

In addition, the United States Court of Appeals for the Federal Circuit has held that the

“parties’ ability to supplement the administrative record is limited” and that the administrative

record should only be supplemented “if the existing record is insufficient to permit meaningful

review consistent with the APA.” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379-

81 (Fed. Cir. 2009); see also Camp v. Pitts, 411 U.S. 138, 142 (1973); Caddell Constr. Co., Inc.

v. United States, 111 Fed. Cl. 49, 93 (2013). In Axiom, the United States Court of Appeals for

the Federal Circuit observed that “‘the focal point for judicial review should be the

administrative record already in existence, not some new record made initially in the reviewing

court.’” 564 F.3d at 1379 (quoting Camp, 411 U.S. at 142). This focus is maintained in order to

prevent courts from using new evidence to “convert the arbitrary and capricious standard into

effectively de novo review.” L-3 Commc’ns EOTech, Inc. v. United States, 87 Fed. Cl. 656, 671

(2009) (citations omitted). This Court has interpreted the Federal Circuit’s directive in Axiom to

mean that supplementation of the administrative record is permitted to correct mistakes and fill

gaps, but is not permitted when the documents proffered are unnecessary for an effective review

of the government’s procurement decision. Id. at 672. And so, the Court has precluded

supplementation of the administrative record with declarations that contain “post-hoc contentions

of fact and argument.” Id.

E. 10 U.S.C. § 1169

Title 10, United States Code, section 1169 places limitations upon the military’s authority

to discharge an enlisted member of an armed force from active duty. 10 U.S.C. § 1169.

Specifically, section 1169 provides that:

No regular enlisted member of an armed force may be discharged

before his term of service expires, except—

(1) as prescribed by the Secretary concerned;

(2) by sentence of a general or special court martial; or

(3) as otherwise provided by law.

Id. This Court has long recognized that section 1169 gives the Secretary of each branch of the

armed forces “the authority to discharge enlisted members prior to the expiration of their term of

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service.” Brigante v. United States, 35 Fed. Cl. 526, 530 (1996); see also Canonica v. United

States, 41 Fed. Cl. 516, 524 (1998) (“Courts have held that an enlisted member of the armed

forces does not have a property interest in his employment because he may be discharged ‘as

prescribed by the Secretary’ of his service.”); Vierrether v. United States, 27 Fed. Cl. 357, 361-

62 (1992) (“So long as no statutes or regulations are violated, enlisted personnel in military

service do not have a right to remain in the service until the expiration of their terms of

enlistment.”).

In addition, courts have construed the term “discharge” broadly, to include involuntary

retirement from active duty service, as well as other types of involuntary separations from the

military that fall short of a complete severance from military service. See Gay Veterans Ass’n,

Inc. v. Sec’y of Def., 668 F. Supp. 11, 14 (D.D.C. 1987) (“The generous language of 10 U.S.C.

§ 1169(1), vesting the several military Secretaries with wide authority, is notable. Indeed, the

relevant legislative history confirms succinctly the obvious notion that ‘10 U.S.C. 1169 would

provide ample authority for the issuance of regulations governing all types of discharges.’”)

(quoting S. Rep. No. 90-931, at 10 (1967) (emphasis existing)); cf. Brigante, 35 Fed. Cl. at 530

(holding plaintiff’s argument that the relevant Board “acted improperly when it approved

[plaintiff’s] involuntary separation based on the Navy’s general power to discharge” under a

separate statute was not persuasive) (emphasis supplied); see Vierrether, 27 Fed. Cl. at 361.

F. 14 U.S.C. § 357

Lastly, at the time plaintiff filed the complaint in this matter, title 14, United States Code,

section 357 provided, in pertinent part, that:

(a) Enlisted Personnel Boards shall be convened as the Commandant may prescribe

to review the records of enlisted members who have twenty or more years of active

military service.

(b) Enlisted members who have twenty or more years of active military service may

be considered by the Commandant for involuntary retirement and may be retired

on recommendation of a Board—

(1) because the member’s performance is below the standards the

Commandant prescribes; or

(2) because of professional dereliction.

(c) An enlisted member under review by the Board shall be . . . .

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(5) allowed to appear before the Board and present witnesses or other

documentation related to the review . . . .

(j) When the Secretary orders a reduction in force, enlisted personnel may be

involuntarily separated from the service without the Board’s action.

14 U.S.C. § 357 (2012) (amended in 2016).3 And so, section 357 allows a Secretary for a branch

of the armed forces to separate a servicemember from active duty service without a hearing

before an Enlisted Personnel Board, if the Secretary orders a reduction in force. Id.

IV. LEGAL ANALYSIS

A. The Court Possesses Jurisdiction To Consider Plaintiff’s Military Pay Claims

As an initial matter, the Court possesses jurisdiction to consider plaintiff’s military pay

claims. It is “well established that claims for back pay stemming from allegedly unlawful

separation from active duty in the armed services are within the jurisdiction of the Court of

Federal Claims under 28 U.S.C. 1491(a).” Spehr v. United States, 51 Fed. Cl. 69, 81 (2001),

aff’d, 49 F. App’x 303 (Fed. Cir. 2002). In addition, the Federal Circuit has held that:

In the context of military discharge cases, the applicable “money-mandating”

statute that is generally invoked is the Military Pay Act, 37 U.S.C. § 204. In order

to bring a military discharge case in the Court of Federal Claims, a plaintiff

therefore must allege that, because of unlawful discharge, the plaintiff is entitled to

money in the form of the pay that the plaintiff would have received but for the

unlawful discharge.

Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003). And so, the Court may

entertain plaintiff’s challenge to the Coast Guard’s decision to involuntarily retire him from

active duty service under the Military Pay Act. Id.; Compl. at ¶ 76.

B. The Court Must Deny Defendant’s Motion to Dismiss

While it is evident that the Court possesses jurisdiction to consider plaintiff’s military pay

claims, plaintiff must also state a plausible claim for relief to pursue this litigation. In this

matter, the government has moved to dismiss plaintiff’s claims for failure to state a claim upon

which relief may be granted for two reasons. Def. Mot. at 12-28. First, the government argues

3

On February 8, 2016, the Congress amended 14 U.S.C. § 357 to strike subsections (a) through (h) and

subsection (j), thereby maintaining only the prior subsection (i), relating to an increase in the retirement

pay for certain servicemembers. See Pub. L. No. 114-120.

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that plaintiff’s challenge to the lawfulness of the 2013 CRSP–which resulted in his involuntary

retirement–should be dismissed, because the claim involves a military decision that is

nonjusticiable. Id. at 13-23. Second, the government seeks dismissal of plaintiff’s claim that he

is entitled to a hearing before an Enlisted Personnel Board, because the complaint fails to

identify a protected liberty or property interest that plaintiff has in an Enlisted Personnel Board

hearing. Id. at 23-28. For the reasons set forth below, the Court disagrees with the government’s

arguments for dismissal of this matter and denies the government’s motion to dismiss.

1. The Court Need Not Convert The Government’s Motion To Dismiss

As a threshold procedural matter, the Court need not convert the government’s motion to

dismiss into one for summary judgment, because the Court may consider the undisputed

documents relied upon by the government to support the motion.

This Court has long recognized that, “when matters outside the pleadings are presented

and not excluded by the Court,” a motion to dismiss under RCFC 12(b)(6) is to be converted to a

motion for summary judgment and “the parties shall be given a reasonable opportunity to present

materials pertinent to the motion.” Akins v. United States, 82 Fed. Cl. 619, 622 (2008); RCFC

12(d); see also Lewis v. United States, 114 Fed. Cl. 682, 685 (2014) (converting a motion to

dismiss or, in the alternative, a motion for judgment upon the administrative record to a motion

for summary judgment due to the absence of an administrative record); see also Williams v.

United States, 100 Fed. Cl. 263, 265 (2011). “Where, however, the Court relies only on

undisputed documents attached as exhibits to the complaint, the Court may proceed without

converting the motion to dismiss to one for summary judgment.” Akins, 82 Fed. Cl. at 622

(citing Am. Contractors Indem. Co. v. United States, 81 Fed. Cl. 682, 688 (2008)); RCFC 10(c)

(“A copy of a written instrument that is an exhibit to a pleading is part of the pleading for all

purposes.”); Frazier v. United States, 67 Fed. Cl. 56, 59 (2005) (“[T]he Court may consider any

written instrument that is attached to the complaint as an exhibit without converting the motion

to dismiss under RCFC 12(b)(6) into a motion for summary judgment.”), aff’d, 186 F. App’x 990

(Fed. Cir. 2006).

In addition, the United States Court of Appeals for the Federal Circuit has held, within

the context of deciding a 12(b)(6) motion, that the Court’s primary focus is the complaint, but the

Court is “‘not limited to the four corners of the complaint.’” Dimare Fresh, Inc. v. United States,

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808 F.3d 1301, 1306 (Fed. Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3429 (U.S. Jan. 19,

2016) (No. 15-944) (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 1357 (3d ed. 2004)); see also Sebastian v. United States, 185 F.3d 1368, 1374 (Fed.

Cir. 1999). Federal Rule of Evidence 201 also permits the Court to take judicial notice of

adjudicative facts that are “not subject to reasonable dispute,” because the facts “can be

accurately and readily determined from sources whose accuracy cannot reasonably be

questioned.” Fed. R. Evid. 201. And so, in deciding the government’s motion to dismiss here,

the Court may consider “‘matters incorporated by reference or integral to the claim, items subject

to judicial notice, [and] matters of public record.’” Dimare Fresh, Inc., 808 F.3d at 1306

(quoting Wright & Miller, supra, § 1357 (brackets existing)).

A review of the documents relied upon by the government to support its motion to

dismiss shows that these documents pertain to undisputed factual matters of public record that

the Court may appropriately consider without converting the government’s motion to one for

summary judgment. In this regard, three of the documents relied upon by the government are

also exhibits to plaintiff’s complaint: a memorandum from Admiral Bob Papp to the Secretary,

dated December 5, 2015, and entitled “Coast Guard Active Duty Enlisted Career Retention

Screening Panel Authorization Request for 2013;” a Commandant Note, dated December 2012,

and entitled “ALCOAST 531/12;” and a Coast Guard memorandum, dated May 8, 2013, and

entitled “Precept Convening the Panel for Screening of Active Duty Enlisted Personnel for the

2013 Retention Screening Panel (CRSP).” Def. Rep. at 4; see Def. 2nd App. at 13-15, 20-23;

Compl. at Exs. 4, 5, 6. It is well established that the Court may consider these three documents

within the context of the government’s motion to dismiss. RCFC 10(c); Frazier, 67 Fed. Cl. at

59.

The Court may also consider the remaining documents relied upon by the government.

The government relies upon several documents contained in the appendix to its motion to

dismiss, namely, the Coast Guard’s Financial Resource Management Manual; Coast Guard

Commandant Admiral Bob Papp’s 2013 State of the Coast Guard Address; the federal budget for

fiscal years 2011, 2012, 2013 and 2014; a Coast Guard Human Resources article; an interview of

Admiral Papp by the Federal News Radio, dated June 30, 2010; an interview of Admiral Papp by

the Navy Times, dated June 12, 2013; and two legal opinions of the Department of Homeland

Security’s Board for Correction of Military Records (“BCMR”). See Def. App. at 1-7, 13, 26-

13

69, 74-75, 78, 80, 84-108. The government also relies upon two additional documents contained

in a separate filing that the government has styled as the “administrative record” for this matter,

namely: a Coast Guard Active Duty Military Workforce Management Situation Report, dated

April 2010, and entitled “ALCOAST 165/100;” and a Coast Guard Active Duty Military

Workforce Management Situation Report, dated June 2010, and entitled “ALCOAST 333/10.”

See Def. 2nd App. at 3-4. All of the above-mentioned documents pertain to matters of public

record and many of these documents are either government publications or news articles that

have been widely disseminated to the public. Dimare Fresh, Inc., 808 F.3d at 1306; see also

Fed. R. Evid. 201. More importantly, plaintiff does not dispute any of the facts contained in

these documents. See generally Pl. Rep.

In addition, the BCMR legal opinions relied upon by the government contain adjudicative

facts that are “not subject to reasonable dispute” and the accuracy of these legal opinions cannot

reasonably be questioned. Fed. R. Evid. 201. Plaintiff also does not dispute the accuracy of the

facts contained in these legal opinions. See generally Pl. Mot.; Pl. Rep. And so, the Court may

take judicial notice of the BCMR legal opinions, and may consider the other documents relied

upon by the government as matters of public record, in resolving the government’s motion to

dismiss. Dimare Fresh, Inc., 808 F.3d at 1306; Fed. R. Evid. 201.

2. Plaintiff States A Plausible Claim For Relief

While the Court need not convert the government’s motion to dismiss, the Court must,

nonetheless, deny the government’s motion because plaintiff states plausible claims for relief.

Twombly, 550 U.S. at 570 (to survive a motion to dismiss pursuant to RCFC 12(b)(6), a

complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.”);

Houghtling, 114 Fed. Cl. at 156–57 (holding that plaintiff’s claims must be justiciable in order to

survive a motion to dismiss for failure to state a claim upon which relief may be granted).

a. Plaintiff States A Justiciable Claim

First, plaintiff’s claim challenging the procedures followed by the Coast Guard in

reaching the decision to involuntarily retire plaintiff is justiciable. In its motion to dismiss, the

government argues that the Court should dismiss plaintiff’s challenge to the Coast Guard’s

involuntary retirement decision, because the merits of military staffing decisions are not subject

to judicial review. Def. Mot. at 12-23; Murphy, 993 F.3d at 873-74 (stating that the merits of a

14

military decision to release a servicemember from active duty are beyond judicial reach). The

government’s argument is, however, misguided because the government mischaracterizes the

nature of plaintiff’s claim in this litigation.

It is well established that the Court may review plaintiff’s challenge to the process that

the Coast Guard followed in reaching the decision to involuntarily retire him from active duty

service. Adkins, 68 F.3d at 1323. In this regard, a plain reading of the complaint shows that,

plaintiff is challenging the lawfulness of the process that led to his involuntary retirement.

Compl. at ¶¶ 56-68. Specifically, plaintiff alleges in the complaint that the Coast Guard failed to

comply with 14 U.S.C. § 357–and, in particular, failed to provide a hearing before the Enlisted

Personnel Board–in reaching its decision to involuntarily retire him from active duty service. Id.

at ¶¶ 56-68.

Here, the allegations in the complaint make clear that plaintiff is disputing the process

followed by the Coast Guard in reaching the decision to involuntarily retire plaintiff, rather than

bringing a challenge to the Coast Guard’s underlying decision. Id; see also Pl. Memo. at 18-22.

As the Federal Circuit recognized in Murphy, this Court “may appropriately decide whether the

military followed procedures because by their nature the procedures limit the military’s

discretion.” Murphy, 993 F.2d at 873; 10 U.S.C. § 1169; 14 U.S.C. § 357. And so, plaintiff’s

challenge to the procedures followed by the Coast Guard in reaching the decision to involuntarily

retire plaintiff is justiciable. Given this, the Court must deny the government’s motion to dismiss

this claim.

b. Plaintiff States A Plausible Claim Of

Entitlement To An Enlisted Personnel Board Hearing

The government’s request that the Court dismiss plaintiff’s claim that he is entitled to a

hearing before an Enlisted Personnel Board is equally without merit. In its motion to dismiss,

the government argues that the Court should dismiss this claim because plaintiff identifies no

constitutional, statutory, or regulatory right to such a hearing in the complaint. Def. Mot. at 23.

But, the government’s argument is belied by a plain reading of the complaint.

In the complaint, plaintiff specifically refers to title 14, United States Code, section 357.

Compl. at ¶¶ 63-68. When plaintiff commenced this litigation, section 357 provided that enlisted

servicemembers with over twenty years of active military service are entitled to a hearing before

15

an Enlisted Personnel Board before being involuntarily retired, unless “the Secretary orders a

reduction in force.”4 Plaintiff alleges in the complaint that he is entitled to such a hearing before

an Enlisted Personnel Board under this statutory provision. Compl. at ¶ 65. And so, when read

in the light most favorable to plaintiff, the complaint clearly states a plausible claim for relief

under section 357. Id.; RCFC 12(b)(6).

C. The Government Is Entitled To Judgment In Its Favor As

A Matter of Law With Respect To Plaintiff’s Section 1169 Claim

Having determined that dismissal of plaintiff’s complaint is not warranted, the Court

turns to plaintiff’s motion for summary judgment and defendant’s motion for judgment upon the

administrative record. Pl. Mot.; Def. Mot.

In this regard, the parties have filed competing dispositive motions on the question of

whether the Coast Guard complied with the Constitution and applicable federal statutes and

regulations in deciding to involuntarily retire plaintiff. Id. Specifically, plaintiff moves for

summary judgment upon the ground that the undisputed material facts in this matter show that

the Secretary did not have the authority to involuntarily retire him under 10 U.S.C § 1169. Pl.

Memo. at 22-24; Pl. Rep. at 11-12. Plaintiff also contends that the undisputed material facts

demonstrate that he is entitled to a hearing before an Enlisted Personnel Board under 14 U.S.C.

§ 357. Pl. Memo. at 24-45; Pl. Rep. at 11-27. The government also seeks judgment upon the

4

At the time plaintiff filed the complaint in this matter, title 14, U.S. Code, section 357 provided, in

pertinent part, that:

(b) Enlisted members who have twenty or more years of active military service may be

considered by the Commandant for involuntary retirement and may be retired on

recommendation of a Board—

(1) because the member’s performance is below the standards the Commandant

prescribes; or

(2) because of professional dereliction.

(c) An enlisted member under review by the Board shall be . . . .

(5) allowed to appear before the Board and present witnesses or other

documentation related to the review. . . . .

(j) When the Secretary orders a reduction in force, enlisted personnel may be involuntarily

separated from the service without the Board’s action.

14 U.S.C. § 357.

16

administrative record upon the ground that section 1169 provides the legal authority for the

Secretary to involuntarily retire plaintiff and that plaintiff has no right to a hearing before an

Enlisted Personnel Board under section 357. Def. Mot. at 29-31. The Court treats the

government’s motion as one for summary judgment pursuant to RCFC 56. And so, the Court has

before it the parties’ cross-motions for summary judgment on these issues.

For the reasons discussed below, the Court grants the government’s motion for summary

judgment on the issue of whether the Secretary had authority under section 1169 to involuntarily

retire plaintiff and denies plaintiff’s cross-motion for summary judgment on this issue. In

addition, the Court holds in abeyance the parties’ cross-motions for summary judgment on the

issue of whether plaintiff is entitled to a hearing before an Enlisted Personnel Board pursuant to

section 357(j).

1. The Court Reviews Plaintiff’s Claims De Novo

As an initial matter, the Court reviews plaintiff’s claims in this matter de novo because

plaintiff asserts his claims for the first time in this litigation. And so, the Court must treat the

government’s motion for judgment upon the administrative record in this matter as a motion for

summary judgment pursuant to RCFC 56. See Lewis, 114 Fed. Cl. at 684, n.1.

A plain reading of the complaint and the documents that the government has filed as the

“administrative record” make clear that the Court is not reviewing a prior decision of the Coast

Guard or a military corrections board in considering this matter. Compl. at ¶¶ 56-68; see

generally Def. 2nd App. Rather, plaintiff brings his claims that the Coast Guard failed to comply

with applicable federal statutes and regulations in reaching the decision to involuntarily retire

plaintiff for the first time in this litigation. Def. 2nd App. at 145, 148-50, 152-54.

This Court has recognized on numerous occasions that the Court reviews such claims de

novo and that no administrative record is appropriate under these circumstances. See Lewis, 114

Fed. Cl. at 684, n.1 (“no administrative record is appropriate” when reviewing a claim for back

pay or separation pay under applicable law, not an agency decision; “[i]nstead the court must

hear [plaintiff’s] claims as a de novo matter.”); Holt v. United States, 64 Fed. Cl. 215, 220 (2005)

(“[T]he record before us is not in the strict sense an ‘administrative record’ which we review

under the Administrative Procedures [sic] Act ‘arbitrary and capricious’ standard.”); see also

Miller v. United States, 120 Fed. Cl. 772, 780-81 (2015); Helferty v. United States, 113 Fed. Cl.

17

308, 322, n.12 (2013), aff’d, 586 F. App’x 586 (Fed. Cir. 2014). And so, the Court reviews

plaintiff’s claims here de novo and treats the government’s motion for judgment upon the

administrative record as one for summary judgment.5 Holt, 64 Fed. Cl at 220 (holding the Court

has before it “a pure Rule 56 motion,” and not a motion for judgment upon the administrative

record pursuant to RCFC 52.1); see also Lewis, 114 Fed. Cl. at 685.

2. Section 1169 Provides Legal Authority For

The Secretary To Involuntarily Retire Plaintiff

The undisputed material facts in this matter show that the Secretary had the authority to

involuntarily retire plaintiff under section 1169. And so, the government is entitled to summary

judgment in its favor on this issue as a matter of law. RCFC 56.

In this regard, a plain reading of section 1169 shows that this statute authorizes the

Secretary to involuntarily retire plaintiff pursuant to the recommendation of the 2013 CRSP.

Specifically, title 10, United States Code, section 1169 provides, in pertinent part, that “[n]o

regular enlisted member of an armed force may be discharged before his term of service

expires,” except as prescribed by the Secretary concerned. 10 U.S.C. § 1169(1).6 And so, this

Court has long recognized that the Secretary for each branch of the armed forces has the

authority under this provision to involuntarily retire a servicemember before his or her term of

service expires. Id.; Canonica, 41 Fed. Cl. at 524; Brigante, 35 Fed. Cl. at 529.

5

The cases relied upon by the government to support its position that the Court should review this matter

under the Administrative Procedure Act’s standard of review are inapplicable to this case. Unlike the

circumstances here, the cases pertain to circumstances where a military corrections board has issued a

decision prior to the commencement of litigation in this Court. See e.g., Walls v. United States, 582 F.3d

1358, 1367 (Fed. Cir. 2009) (“[I]t has become well established that judicial review of decisions of

military corrections boards is conducted under the APA.”); Metz, 466 F.3d at 998 (finding application to a

military corrections board is permissive; “[h]owever, we have also stated that when a service member

does pursue such relief, the Court of Federal Claims reviews the Board’s action under the same standard

as any other agency action”); Pearl v. United States, 111 Fed. Cl. 301, 310-11 (2013) (“review[ing] the

Army’s decision with a deferential eye,” but only after a decision from the Physical Disability Board of

Review).

6

Pursuant to 10 U.S.C. § 101(a)(4), the Coast Guard is an “armed force.” In addition, 10 U.S.C.

§ 101(a)(9)(D) provides that, for purposes of title 10, the term “Secretary concerned” means “the

Secretary of Homeland Security, with respect to matters concerning the Coast Guard when it is not

operating as a service in the Department of the Navy.” 10 U.S.C. § 101(a)(9)(D).

18

The undisputed material facts in this matter also demonstrate that the Coast Guard

complied with section 1169 in reaching the decision to involuntarily retire plaintiff at the

recommendation of the 2013 CRSP. In this regard, it is without dispute that the Secretary

approved the 2013 CRSP in a memorandum dated December 5, 2012. Compl. at Ex. 4; Def.

2nd App. at 13-14. The memorandum states, in pertinent part, that:

The legal authority to conduct a CRSP panel derives from title 10, U.S. Code

Section 1169 and title 14 U.S. Code Section 357(j). Under Section 1169, regular

enlisted members of an armed force may be discharged, before service term

expiration, as the Secretary concerned may prescribe.

Compl. at Ex. 4; Def. 2nd App. at 13-14 (emphasis supplied). And so, these undisputed material

facts make clear that the Coast Guard acted within the legal authority provided by section 1169

to reach its decision to involuntarily retire plaintiff. Id.

Plaintiff, nonetheless, argues in his motion for summary judgment that section 1169 does

not apply to the factual circumstances of this case because he has been “released,” rather than

“discharged,” from the Coast Guard. Pl. Memo. at 23; Pl. Rep. at 14-15. But, plaintiff’s

argument cannot be reconciled with any reasonable interpretation of the language contained in

section 1169 or the facts of this case.

Courts have broadly interpreted the term “discharge” in section 1169 to include

circumstances involving an involuntary retirement from active duty service, as well as many

other types of involuntary separations from the military that fall short of a complete severance

from military service. See Gay Veterans Ass’n, Inc., 668 F. Supp. at 14; see also Brigante, 35

Fed. Cl. at 530; Vierrether, 27 Fed. Cl. at 361. In this case, plaintiff acknowledges that he has

been involuntarily retired from active duty with the Coast Guard. Compl. at ¶ 29. And so, the

Court is simply not persuaded by plaintiff’s argument that his involuntary retirement status does

not fall within the definition of the term “discharge” as contemplated by section 1169.

Because the undisputed material facts demonstrate that the Secretary has the legal

authority to involuntarily retire plaintiff from active duty service with the Coast Guard, the Court

19

grants the government’s motion for summary judgment and denies plaintiff’s cross-motion for

summary judgment on plaintiff’s section 1169 claim.7

D. The Record Before The Court Is Insufficient To Resolve Plaintiff’s Claim

That He Is Entitled To A Hearing Before An Enlisted Personnel Board

The current factual record before the Court is, however, insufficient to resolve plaintiff’s

remaining claim−that plaintiff is entitled to a hearing before an Enlisted Personnel Board. See

Compl. at ¶ 64; Def. Mot. at 19-23. In this regard, plaintiff argues that the Coast Guard’s

decision to involuntarily retire him violates 14 U.S.C. § 357, because the Secretary did not order

a reduction in force prior to convening the 2013 CRSP. Compl. at ¶ 64. The government

counters that the Coast Guard had no obligation to provide plaintiff with a hearing before an

Enlisted Personnel Board, because the Secretary did, in fact, order a reduction in force. Def.

Mot. at 20; 14 U.S.C. § 357(j).

The parties agree that section 357 permits the Secretary to involuntarily retire plaintiff

from active duty service without a hearing before an Enlisted Personnel Board if the Secretary

ordered a reduction in force. Compl. at ¶ 54; Pl. Rep. at 28; Def. Mot at 18. But, a significant

factual dispute exists in this litigation about whether the Secretary actually ordered such a

reduction in force. See 14 U.S.C. § 357(j); Compl. at ¶ 58-66; Def. Mot. at 6, n.6. Given this, a

more complete factual record is needed to inform the Court’s analysis of the parties’ cross-

motions for summary judgment on this issue. And so, the Court must hold the resolution of the

question of whether plaintiff is entitled to a hearing before an Enlisted Personnel Board under

section 357 in abeyance pending additional briefing on this issue.

7

Given the briefing and supplemental filings in this matter to date, both parties appear to have

anticipated the Court’s decision to convert the government’s motion pursuant to RCFC 52.1 to one for

summary judgment. Cf. Easter v. United States, 575 F.3d 1332, 1335-36 (Fed. Cir. 2009); see also Lewis,

114 Fed. Cl. at 684, n.1, 685 (noting that the Court provided notice to the parties that it would treat the

government’s motion to dismiss or, in the alternative, motion for judgment upon the administrative record

as a motion for summary judgment); see Williams v. United States, 100 Fed. Cl. 263, 271 (2011).

Nonetheless, the government has not been prejudiced by the Court’s decision to grant summary judgment

in its favor with respect to plaintiff’s section 1169 claim. Because the Court holds that the Secretary has

the authority to involuntarily retire plaintiff pursuant to 10 U.S.C. § 1169, the Court does not reach the

question of whether the Secretary also has such authority under 14 U.S.C. § 357.

20

E. The Parties’ Remaining Procedural Motions

Lastly, the parties have filed several procedural motions in this litigation. First, the

government has moved for leave to file a sur-reply to plaintiff’s reply in support of his motion

for summary judgment. See 2nd Mot. to Strike; Sur-Reply. Given the various procedural and

substantive issues raised in the parties’ filings, the Court finds that the resolution of this matter is

aided by its consideration of the matters presented in the government’s sur-reply. See Little v.

United States, 124 Fed. Cl. 256, 263 (2015) (granting plaintiffs leave to file a sur-reply when

they “put forth new and additional reasons on which they base their request for relief, which

either were not clearly asserted previously or were entirely absent in their original complaint.”)

And so, the Court grants the government’s motion to file a sur-reply to plaintiff’s reply in

support of his motion for summary judgment.

The government has also filed two motions to strike certain documents that plaintiff has

filed in support of his motion for summary judgment, upon the ground that these documents are

not a part of the administrative record for this matter. Mot. to Strike; 2nd Mot. to Strike. As

discussed above, plaintiff asserts the claims in this matter for the first time in this litigation.

Because there is no administrative record reflecting a prior agency or board decision on

plaintiff’s claims, plaintiff has appropriately styled his motion as one for summary judgment and

relied upon the documents filed as an appendix to that motion. Holt, 64 Fed. Cl. at 220 (“[T]he

record before us is not in the strict sense an ‘administrative record’ which we review under the

Administrative Procedures [sic] Act ‘arbitrary and capricious’ standard. . . . Instead, we have

before us a pure Rule 56 motion.”); see also Lewis, 114 Fed. Cl. at 685; RCFC 56. And so, the

Court denies the government’s motions to strike.

In addition, plaintiff has moved to supplement the administrative record with the

documents contained in the appendix to his motion for summary judgment. Pl. Rep. at 9-10.

Because plaintiff has appropriately filed these documents as an appendix to his motion for

summary judgment, the Court denies plaintiff’s motion to supplement the administrative record

as moot.

V. CONCLUSION

In sum, when viewed in the light most favorable to plaintiff, the complaint alleges

justiciable and plausible claims challenging the lawfulness of the Coast Guard’s decision to

21

involuntarily retire plaintiff from active duty service. And so, the Court must deny the

government’s motion to dismiss plaintiff’s claims for failure to state a claim upon which relief

may be granted pursuant to RCFC 12(b)(6).

In addition, because plaintiff brings his claims for the first time in this litigation, the

Court reviews plaintiff’s claims de novo and has before it cross-motions for summary judgment

on the question of whether the Coast Guard complied with 10 U.S.C. § 1169 and 14 U.S.C. § 357

in reaching the decision to involuntarily retire plaintiff. In this regard, the undisputed material

facts show that the Secretary has the legal authority to involuntarily retire plaintiff under 10

U.S.C. § 1169. And so, the government is entitled to summary judgment in its favor on this

issue as a matter of law.

The factual record before the Court is, however, insufficient for the Court to resolve the

parties’ cross-motions for summary judgment on plaintiff’s claim that he is entitled to a hearing

before an Enlisted Personnel Board under section 357. And so, the Court holds the parties’

cross-motions for summary judgment on this remaining issue in abeyance pending supplemental

briefing on this issue.

For the foregoing reasons, the Court:

1. DENIES the government’s motion to dismiss;

2. GRANTS the government’s motion for summary judgment on the issue of

whether plaintiff’s involuntary retirement was lawful under 10 U.S.C. § 1169 and

DENIES plaintiff’s cross-motion for summary judgment on that issue;

3. GRANTS the government’s motion to file a sur-reply;

4. DENIES the government’s motions to strike;

5. DENIES plaintiff’s motion to supplement the administrative record as moot; and

6. HOLDS in ABEYANCE the parties’ cross-motions for summary judgment on

the question of whether plaintiff is entitled to a hearing before an Enlisted

Personnel Board pursuant to 14 U.S.C. § 357.

The Court further ORDERS that the parties shall FILE supplemental briefs on the issue

of whether the Secretary complied with 14 U.S.C. § 357, and, in particular, whether the

Secretary ordered a reduction in force pursuant to section 357, in connection with the Coast

22

Guard’s decision to involuntarily retire plaintiff. The schedule for the supplemental briefing

shall be as follows:

1. On or before July 15, 2016, the parties shall FILE their initial supplemental briefs;

2. On or before August 5, 2016, the parties shall FILE their responsive supplemental

briefs; and

3. On or before August 12, 2016, the parties shall FILE any replies.

IT IS SO ORDERED.

s/Lydia Kay Griggsby

LYDIA KAY GRIGGSBY

Judge

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