Tippins v. United States

In the United States Court of Federal Claims

No. 18-923C

Filed: August 10, 2020

TONIA TIPPINS, et al.,

Plaintiffs, Keywords: Involuntary

Retirement; Career Retention

v. Screening Panel; Discovery;

RCFC 30(b)(6); Motion to

THE UNITED STATES, Compel

Defendant.

Nathan S. Mammen, Ragan Naresh, and Emily M. Kustina, Kirkland & Ellis LLP, Washington,

D.C., for the plaintiff.

Dlisa M. Sanchez, Trial Attorney, Commercial Litigation Branch, with whom were Martin F.

Hockey, Jr., Deputy Director, Robert E. Kirschman, Jr., Director, Civil Division, Ethan P.

Davis, Acting Assistant Attorney General, U.S. Department of Justice, Washington, D.C., and

LCDR Jesse L. Houck, U.S. Coast Guard, Of Counsel, for the defendant.

OPINION AND ORDER

Tapp, Judge.

Plaintiffs Tonia Tippins, Derrik Magnuson, George Holloway, Jennifer Rehberg, Glenda

Smithleeth, and M. Allen Bumgardner (collectively “Plaintiffs”) brought this action to challenge

the legality of their involuntary retirement from the United States Coast Guard. On March 16,

2020, the Plaintiffs filed a Motion to Compel the United States, through the Coast Guard, to

produce a designee for a RCFC 30(b)(6) Deposition. (Mot. to Comp., ECF No. 39). On May 18,

2020, the United States responded and moved for a protective order relieving it of any obligation

to provide a representative to testify about the twelve topics contained in Plaintiffs’ RCFC

30(b)(6) deposition notice. (Def.’s Resp. and Mot. for Prot. Order (“Def.’s Resp.”), ECF No. 46).

Plaintiffs filed their Reply on June 15, 2020. (Pls.’ Reply, ECF No. 50). These competing

motions now stand submitted.

For the following reasons, the United States’ Motion for a Protective Order is DENIED.

The Court DEFERS resolution of Plaintiffs’ Motion to Compel pending further discussions

between the parties.

I. Background

The ultimate resolution of this case turns on whether the Coast Guard acted contrary to

law when it involuntarily retired numerous Coast Guard members from 2010 to 2014 through

Career Retention Screening Panels (“CRSPs”). The United States maintains that the retirements

were part of a lawful “reduction in force” under 14 U.S.C. § 357(j). There have been no

proceedings before an administrative board to determine the lawfulness of these retirements.

This Court has previously determined this case should be briefed for summary judgment on the

legality of Plaintiffs’ retirement via CRSPs in lieu of Enlisted Personnel Boards. (Order, ECF

No. 22 (J. Smith)). 1

To that end, Plaintiffs seek to depose a representative from the Coast Guard regarding

several topics outlined in a July 11, 2019 request for production of documents. (Mot. to Comp.,

Ex. 1). Plaintiffs served a formal RCFC 30(b)(6) notice on the United States on November 27,

2019, which outlined twelve topics of examination. (Mot. to Comp., Exs. 4, 5). On February 7,

2020, the United States responded to that notice stating it would oppose further discovery in this

case. (Mot. to Comp., Ex. 6). Plaintiffs now ask the Court to compel the Coast Guard to produce

a representative for live deposition testimony, and the United States seeks a protective order

relieving it from any obligation to do so.

II. Legal Standard

RCFC 26(b)(1) governs the scope of permissible discovery, constraining parties to

“discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense

and proportional to the needs of the case.” Whether discovery is proportional to the needs of the

case requires considerations of “the importance of the issues at stake in the action, the amount in

controversy, the parties’ relative access to relevant information, the parties’ resources, the

importance of the discovery in resolving the issues, and whether the burden or expense of the

proposed discovery outweighs its likely benefit.” Id.

Under RCFC 30(b)(6), a party may notice deposition to a government agency, which then

must designate an appropriate representative to testify on its behalf. The notice “must describe

with reasonable particularity the matters for examination” before the agency is required to

designate a representative to be examined. RCFC 30(b)(6); see also Alexander v. F.B.I., 186

F.R.D. 137 (D.D.C. 1998). Once this burden is satisfied, the government agency then “has an

affirmative duty to make available persons who will be able to give complete, knowledgeable

and binding answers on its behalf.” Dairyland Power Co-op. v. United States, 79 Fed. Cl. 709,

714 (2007) (internal quotations omitted). The representative is obligated to be prepared to testify

“about information known or reasonably available to the organization.” RCFC 30(b)(6); see also

AG-Innovations, Inc. v. United States, 82 Fed. Cl. 69, 80 (2008).

III. Analysis

The parties’ motions place two issues before the Court. First, the parties disagree as to

whether discovery is available in this case. Second, assuming for the sake of argument that

discovery is permitted, the parties disagree over the proper scope of that discovery.

A. Availability of Discovery in This Case.

Plaintiffs argue that they are entitled to discovery because they elected to bring this

military pay action before this Court in the first instance, rather than first seeking review from

the Coast Guard Board for Correction of Military Records. (Mot. to Comp. at 6). Plaintiffs urge

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The Court reserved a decision on the appropriate standard of review for consideration in

concert with the parties’ cross-motions for summary judgment. (ECF No. 22 at 2).

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that limited discovery was contemplated by this Court’s July 2, 2019, Order. (Pls.’ Reply at 7

(citing ECF No. 22)). The United States argues that discovery outside the administrative record

is categorically prohibited because this is a military pay case, which must proceed only on the

administrative record. (Def.’s Resp. at 1 (“[P]laintiffs’ strategic decision to bypass review of

their claims by a Coast Guard correction board does not entitle them to discovery in this

Court.”), 12 (“Pursuing de novo review of their claims in this court, however, does not entitle

plaintiffs to discovery.”)).

i. The Court’s July 2, 2019 Order Does Not Rule on the

Availability of Discovery in This Case.

On June 27, 2019, the Court heard oral argument on whether this case should proceed on

motions for summary judgment or motions for judgment on the administrative record. (See ECF

No. 22 at 2 (holding the case should proceed on motions for summary judgment)). During oral

argument, discussion ensued regarding whether Plaintiffs would be entitled to discovery.

Ultimately the Court entered an order allowing Plaintiffs to file a motion to compel to address

that issue. (Id.). Despite vehement contentions to the contrary, that Order provides no support for

either party’s position on whether discovery is available in this case, much less the scope of the

contemplated discovery.

ii. Discovery is Not Categorically Prohibited in Military Pay

Cases.

Plaintiffs argue that, like in Lippmann v. United States, 127 Fed. Cl. 238 (2016), fact

discovery is necessary to determine “whether the CRSP process was conducted pursuant to a

reduction in force in view of the Coast Guard’s pre-litigation understanding and use of that

term.” (Mot. to Comp. at 7). Plaintiffs further contend that because the evidence they seek was

unavailable below, this Court’s review of Plaintiffs’ claims is not limited to the administrative

record. (Id. at 8 (citing Wyatt v. United States, 23 Cl. Ct. 314, 319 (1991)). The United States

counters that Lippmann was incorrectly decided and cites several cases in support of its argument

that this Court’s review is limited to the administrative record in military pay cases. 2 (Def.’s

Resp. at 13). While there is merit to both sides’ arguments, Plaintiffs place too much weight on

Lippman, even if correctly decided, and the cases to which the United States cites do not

squarely address the issue presented in this case.

In Lippmann v. United States, 127 Fed. Cl. 238 (2016), a servicemember challenged the

Coast Guard’s decision to involuntarily retire him pursuant to the recommendation of a CRSP.

As here, that servicemember elected to bypass a military records corrections board and instead

brought a challenge in this court. Id. at 242. The Court held that it would review the

servicemember’s claims de novo. Id. at 250. Further, the Court held in abeyance the parties’

cross-motions for summary judgment pending further briefing on whether the servicemember

was entitled to a hearing before an Enlisted Personnel Board pursuant to 14 U.S.C. § 357, the

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The United States contends Lippmann is incorrect and “contrary to other decisions of the

Federal Circuit, this Court, and this Court’s predecessor[.]” (Def. Resp. at 13 (citing Allphin v.

United States, 758 F.3d 1336 (Fed. Cir. 2014); Bateson v. United States, 48 Fed. Cl. 162 (2000),

aff’d, 64 F. Appx. 244 (Fed. Cir 2003); and Wyatt v. United States, 23 Cl. Ct. 314 (1991))).

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same “reduction in force” statute at issue in this case. Id. at 251–52. In concluding that

supplemental briefing on the issue was necessary, the Court determined that “a more complete

factual record [was] needed to inform the Court’s analysis of the parties’ cross-motion for

summary judgment on [the issue of whether the Secretary of the Department of Homeland

Security actually ordered a reduction in force].” Id. at 252. However, Lippmann was dismissed

by stipulation of the parties prior to resolution of the § 357 issue. In any event, Lippmann

provides little guidance as to whether discovery is available or warranted here.

In Allphin v. United States, 758 F.3d 1336 (Fed. Cir. 2014), approximately 300 plaintiff-

servicemembers were separated from the Navy through an Enlisted Retention Board (“ERB”).

The Federal Circuit agreed that the decisions to convene the ERBs and discharge

servicemembers were nonjusticiable, but reviewed whether creation of the ERB exceeded the

Navy’s statutory authority. Id. at 1341–42. On this issue, the Federal Circuit affirmed judgment

on the administrative record for the United States, finding the Navy did not exceed its statutory

authority in implementing the ERBs. Id. at 1342. The Federal Circuit also affirmed the Court of

Federal Claims’ denial of the plaintiffs’ motion to supplement the administrative record with

four documents relevant only to the nonjusticiable claims, finding no abuse of discretion in that

decision. Id. at 1344. Ignoring that Allphin was adjudicated on the administrative record, the

United States highlights that the Federal Circuit affirmed the Court of Federal Claims’ decision

to deny supplementation of the administrative record and argues that this case contradicts

Lippman. (Def.’s Resp. at 13). The Court sees no irreconcilable tension between the two cases

and finds Allphin largely inapplicable to the discovery dispute at hand.

In Bateson v. United States, 48 Fed. Cl. 162, 164 (2000), aff’d, 64 F. Appx. 244 (Fed. Cir

2003), Air Force officers were involuntarily separated as a result of non-selection for promotion.

The plaintiffs contended the selection boards were conducted in violation of statutory and

regulatory procedural requirements. Id. at 163. Several plaintiffs did not pursue administrative

remedies with the Air Force Board for the Correction of Military Records (“AFBCMR”). Id. For

those plaintiffs, the administrative record before the Court comprised only of those plaintiffs’

personnel files. Id. The Court considered two issues: (1) whether those plaintiffs who did not

pursue administrative remedies before the AFBCMR were entitled to discovery, and (2) whether

those plaintiffs who had presented claims to the AFBCMR were entitled to conduct discovery in

order to supplement the existing administrative record. Id. at 164. The Court determined that

“[i]n cases where an officer has not pursued an administrative appeal the officer has waived the

right to make an administrative record and has to rely [on] a subsequent action for judicial

review on the evidentiary record before the deciding official.” Id. at 164. “[W]here the

evidentiary record is found to be inadequate,” the Court explained, “it is not this Court’s role to

fill in the evidentiary gaps.” Id. at 165 (citing Long v. United States, 12 Cl. Ct. 174, 177 (1987)).

In the Bateson Court’s view, plaintiffs may submit new evidence in such cases “only if, (1) the

evidence was unavailable below or (2) if there is a strong showing of bad faith or improper

behavior which creates serious doubts about the integrity of the administrative action.” Bateson,

48 Fed. Cl. at 165 (citing Wyatt v. United States, 23 Cl. Ct. 314, 319 (1991)).

In Wyatt, 23 Cl. Ct. 314, the Claims Court examined a servicemember’s challenge to his

involuntary separation. Our predecessor court held that the servicemember was not required to

present his claims for correction of military records to an administrative body prior to bringing

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them in the Claims Court. 3 Id. at 318. However, the Court also held that the servicemember did

not have the right to present new evidence in the Claims Court unless the evidence was

unavailable to the deciding official or the plaintiff demonstrated bad faith or improper behavior.

Id. at 319. Nevertheless, Wyatt is readily distinguishable from this case. The Court in Wyatt

reviewed a battalion commander’s decision to discharge the servicemember for unsatisfactory

performance. Id. at 320. The Court found the battalion commander’s decision, conducted under a

regulation that clearly committed the action to the commander’s discretion, was not arbitrary,

capricious, in bad faith, or unsupported by substantial evidence, or contrary to law. Id. at 320–

322. Here, the plaintiffs were involuntarily retired by a panel formed pursuant to a different

statute and the underlying claim pertains to the authority of that panel to retire the plaintiffs, not

the substance of the panel’s decision-making process.

In both Bateson and the present dispute, the plaintiffs filed a motion seeking to conduct

discovery. Id. at 163; (Mot. to Comp.). However, the topics of discovery sought in Bateson can

be distinguished from the discovery sought here. In Bateson, the plaintiffs sought discovery

related to the proceedings before the board. Id. at 163, and n.3 (seeking discovery “concerning

the involvement of board members in board proceedings[,]” the “‘quality control’ and auditing

process[,]” “statistical analyses of promotion board results” to compare selection board panels,

and clarification on the process itself, including the meaning of certifying signatures and

“secretarial approval.”). Here, Plaintiffs primarily seek discovery to determine the interpretation

of the relevant statute by the agency in order to determine whether the implementation of the

CRSPs was statutorily permissible. (Mot. to Comp. at 8–9). In this case, Plaintiffs do not attempt

to nitpick adherence to proper procedure by which they were selected for involuntary separation;

they reject the entire process as invalid and seek to gather evidence that was unavailable below.

(Id. (“Plaintiffs did not have the option to bring claims that their involuntary retirements through

the CRSP violated their statutory rights before a military corrections board[.]”)).

The Court finds the standard set out in Bateson instructive. Discovery is available in

military pay cases brought for the first time in the Court of Federal Claims where “(1) the

evidence was unavailable below or (2) if there is a strong showing of bad faith or improper

behavior which creates serious doubts about the integrity of the administrative action.” Bateson,

48 Fed. Cl. at 164, aff’d, 64 F. Appx. 244 (citing Wyatt, 23 Cl. at 319). Therefore, the United

States’ Motion for a Protective Order must be denied because it incorrectly seeks relief on the

basis discovery is categorically unavailable in military pay cases.

This conclusion is supported by the same rationale that allows supplementation of the

administrative record in standard military pay cases. “[W]hen a service member does pursue

[relief from a military corrections board], the Court of Federal Claims reviews the Board’s action

under the same standard as any other agency action.” Metz v. United States, 466 F.3d 991, 998

(Fed. Cir. 2006). That is, “whether the decision is arbitrary, capricious, unsupported by

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Unlike other circuits, this Court may hear claims for injunctive relief prior to exhaustion of

administrative remedies. Heisig v. United States, 719 F.2d 1153, 1155 (Fed. Cir. 1983); contra

Navas v. Gonzales Vales, 752 F.2d 765, 796 (1st Cir. 1985) (finding servicemember-plaintiff’s

claim nonjusticiable where he failed to exhaust intraservice administrative remedies prior to

seeking judicial review); Ballenger v. Marsh, 708 F.2d 349, 350–51 (8th Cir. 1983) (same);

Diliberti v. Brown, 583 F.2d 950, 951 (7th Cir. 1978) (same).

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substantial evidence, or contrary to law.” Porter v. United States, 163 F.3d 1304, 1312 (Fed. Cir.

1998). “The focus of judicial review of agency action remains the administrative record, which

should be supplemented only 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, 1381 (Fed.

Cir. 2009) (emphasis added). However, the Court does not “[lose] its ability to hold evidentiary

hearings to determine jurisdictional facts, or to consider ‘extra-record’ evidence in extremely

limited situations.” Metz, 466 F.3d at 998. In this extraordinary case, the Plaintiffs should not be

denied the opportunity to supply the Court with “extra-record” evidence that was unavailable to

support their claim in the administrative proceedings below.

B. Discovery Is Limited to the Coast Guard’s Interpretation of 14 U.S.C. § 357.

In their Notice of Deposition, Plaintiffs proposed twelve topics of potential examination

for their requested RCFC 30(b)(6) deposition. (See Pls.’ Not. of Dep., ECF No. 39-4). As the

Court expressed during the August 6, 2020 oral argument, while the Court is convinced limited

discovery is appropriate in this case, it will defer ruling on whether the twelve topics proposed

fall within this limited scope. For now, the Court defers resolving issues of the scope of

deposition topics in favor of negotiations between the parties who, presumably, are in the best

position to determine with specificity those topics that are necessary to illuminate how the Coast

Guard interpreted 14 U.S.C. § 357 prior to litigation in this case. However, the Court

acknowledges some discussion may aid those negotiations and ultimately render Plaintiffs’

Motion to Compel moot.

The parties agree that this case turns on whether the Coast Guard conducted a reduction

in force pursuant to 357(j), or whether retirement using the CRSP was unlawful because there

was no reduction in force. (See Mot. to Comp. at 1; Def.’s Resp. at 7). In requesting that the

Coast Guard produce a representative for deposition, Plaintiffs seek to gain context for the

documents the United States has already produced, as well as context for documents contained in

the “administrative record” compiled by the United States. (Pls.’ Reply at 8–9). The Court finds

that additional discovery is warranted to determine the Coast Guard’s interpretation of “reduction

in force,” which may be gleaned from prior uses of the CRSP, and/or prior Coast Guard

“workforce flow” tools under 357(j) within a reasonable amount of time. Additionally, insight

into the decision-making process that resulted in a public messaging campaign emphasizing that

the CRSP was a not reduction in force—a message directly contrary to the position the United

States now takes—is likely to be relevant to the Plaintiffs’ claim and proportional to the needs of

the case.

While the Court makes no decision as to compelling discovery on particular topics

identified by Plaintiffs, the Court hopes its discussion of these issues will guide the parties to

appropriate boundaries for limited discovery.

IV. Conclusion

Based on the foregoing, the United States’ Motion for a Protective Order (ECF No. 46) is

DENIED. The Court DEFERS resolution of Plaintiffs’ Motion to Compel (ECF No. 39),

pending additional discussions between the parties.

On or before August 24, 2020, the parties shall meet and confer in good faith to come to

an agreement regarding the topics and form of discovery. On or before August 27, 2020, the

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parties shall file a joint status report apprising the Court of the results from those discussions,

including whether areas of disagreement necessitate a ruling on Plaintiffs’ Motion to Compel.

This status report shall also contain a proposed schedule for further proceedings, including an

agreed schedule for dispositive motions.

IT IS SO ORDERED.

s/ David A. Tapp

DAVID A. TAPP, Judge

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