Santana v. United States

In the United States Court of Federal Claims

No. 16-1703C

(Filed: July 28, 2021)

)

MIRIAM SANTANA on behalf of the )

ESTATE of CELESTE SANTANA, ) Military Pay Act, 37 U.S.C. § 204;

) Review of Actions of Selection

Plaintiff, ) Boards; 10 U.S.C. § 1558;

) Administrative Remedies; Motion to

v. ) Dismiss; Cross-Motions for Judgment

) on the Administrative Record

THE UNITED STATES, )

)

Defendant. )

)

John Bennett Wells, Slidell, LA, for plaintiff.

Douglas G. Edelschick, Civil Division, U.S. Department of Justice, Washington, DC,

with whom were Chad A. Readler, Acting Assistant Attorney General, Robert E.

Kirschman, Jr., Director, and Steven J. Gillingham, Assistant Director, for defendant.

Major Matthew T. Reeder, U.S. Department of the Navy, Washington, DC, of counsel.

OPINION

FIRESTONE, Senior Judge.

In this action, plaintiff Miriam Santana (plaintiff), on behalf of the estate of

Lieutenant Commander Celeste Santana (LCDR Santana), 1 seeks from this court back

1 LCDR Santana passed away on July 18, 2018. After learning this, the court issued

an order on September 14, 2018 directing plaintiff to provide the name of the legal

representative who intended to pursue the matter on behalf of LCDR Santana’s estate.

ECF No. 26. Plaintiff did so on September 27, 2018, ECF No. 27, and filed an amended

complaint substituting plaintiff as the real party in interest on October 5, 2018, ECF No.

28.

pay and related relief under the Military Pay Act, 37 U.S.C. § 204. Plaintiff alleges that

the United States Department of the Navy (Navy) wrongfully discharged LCDR Santana

in 2011 when the Navy decided not to continue LCDR Santana on active duty. LCDR

Santana, before her death, first filed a wrongful discharge claim in this court in 2014. On

March 12, 2016, following briefing on cross-motions for judgment on the administrative

record, but prior to the court’s decision, LCDR Santana requested that the Secretary of

the Navy (the Secretary) convene a special board to review her non-continuation

decision. Before the Secretary responded to this request, the court in this first action

concluded that LCDR Santana’s wrongful discharge claim was premature because the

Secretary had not yet acted on her request for special board review. LCDR Santana

appealed that decision before the United States Court of Appeals for the Federal Circuit.

On December 28, 2016, prior to the Secretary acting on her request or the Federal

Circuit acting on her appeal, LCDR Santana filed this case. Eventually, following long

and complicated proceedings before the Navy, this court, and the Federal Circuit,

described in greater detail below, the Secretary 2 denied LCDR Santana’s request for

special board review on April 21, 2020.

2 The April 21, 2020 decision by the Secretary was signed by the Assistant

Secretary of the Navy for Manpower and Reserve Affairs, Administrative R. (AR) at 1, 6,

ECF No. 53, under the delegation set forth in Secretary of the Navy Instruction

(SECNAVINST) 1402.1, which governs, among other things, the convening of special

boards. See Def.’s App. Accompanying Def.’s Resp. to Pl.’s Mot. for J. Upon the

Administrative R., and Def.’s Cross-Mot. for J. Upon the Administrative R. (DA) at 7

(“The Assistant Secretary of the Navy (Manpower and Reserve Affairs) (ASN(M&RA))

is authorized to perform all functions of the SECNAV under [SECNAVINST 1402.1]

2

Plaintiff argues in this case that the Secretary’s April 21, 2020 denial of LCDR

Santana’s special board request, as well as the Navy’s underlying decision not to continue

her on active duty when she was eligible for retirement within six years, are not

supported and contain material errors. In addition, plaintiff has included a claim for

disability retirement relief based on LCDR Santana’s alleged post-traumatic stress

disorder, which plaintiff claims arose from a sexual assault that took place while LCDR

Santana was on active duty in Afghanistan. Plaintiff contends that the Navy’s decision to

discharge LCDR Santana without first evaluating or treating her for post-traumatic stress

disorder following her alleged sexual assault was contrary to law.

Three motions are now pending before the court. First, the government moves to

dismiss certain claims in the fourth amended and operative complaint on jurisdictional

grounds. Def.’s Mot. for Partial Dismissal of the Compl. (Def.’s Mot. to Dismiss), ECF

No. 55. Specifically, the government argues that the claim that the Navy improperly

discharged LCDR Santana before evaluating or treating her alleged post-traumatic stress

disorder is barred by the applicable six-year statute of limitations. 3

except actions pertaining to general or flag officers or those the ASN(M&RA) deems

appropriate to forward for the SECNAV’s action.’”).

3 The government also moves to dismiss several other claims in the fourth amended

complaint. See Def.’s Mot. to Dismiss at 8 (arguing that the complaint “still includes

allegations regarding the manipulation of medical records, violation of the First

Amendment, sexual harassment and assault, sanitation, health and safety, deprivations of

liberty and property, and discrimination.”). In light of plaintiff’s representations that she

is pursuing only wrongful discharge claims, ECF No. 59 at 12, the court declines to

address those issues. See infra Part IV.A.

3

Second, plaintiff moves for judgment on the administrative record, arguing that

the Secretary’s denial of special board review and the Navy’s underlying decision not to

continue LCDR Santana on active duty service were affected by “material error” and

failed to consider the “totality of the circumstances” surrounding her discharge, including

her sexual assault and post-traumatic stress disorder. Pl.’s Opp’n to Def.’s Partial Mot. to

Dismiss the Compl. and Mot. for J. on the Administrative R. (Pl.’s Opp’n & Cross-Mot.),

ECF No. 59. Plaintiff also argues that the Navy wrongfully discharged LCDR Santana

without properly evaluating the medical implications of her reported sexual assault.

Third, the government cross-moves for judgment on the administrative record,

arguing that this court may only review the Secretary’s decision denying LCDR

Santana’s request for special board review and not the underlying non-continuation

decision. Def.’s Reply in Support of Mot. for Partial Dismissal of the Compl., Def.’s

Resp. to Pl.’s Mot. for J. upon the Administrative R., and Def.’s Cross-Mot. for J. upon

the Administrative R. (Def.’s Reply & Cross-Mot.), ECF No. 60. The government

further contends that the Secretary’s denial of a special board is supported by the record

and does not contain any material error, and thus the Secretary’s decision should be

affirmed.

As explained below, the court concludes that the claims and relief sought in

connection with LCDR Santana’s alleged post-traumatic stress disorder are new claims

that do not “relate back” to the original complaint and must be dismissed for lack of

jurisdiction as they fall outside the six-year statute of limitations period governing this

4

action. Accordingly, the government’s motion for partial dismissal of the complaint is

GRANTED.

In addition, the court concludes that its review is limited to only the Secretary’s

April 21, 2020 decision denying special board review, not the Navy’s underlying

continuation decision. Further, the court concludes that it may only set aside the

Secretary’s decision not to convene a special board if the court finds that the Secretary’s

decision is arbitrary, capricious, unsupported by substantial evidence, or contrary to law.

Based on the court’s review of the record, the court concludes that the Secretary’s

decision denying a special board is not arbitrary or capricious, is supported by substantial

evidence, and is not contrary to law. The court therefore GRANTS the government’s

cross-motion for judgment on the administrative record and DENIES plaintiff’s cross-

motion for judgment on the administrative record.

I. REGULATORY BACKGROUND

Set forth below is the legal framework governing the decisions challenged in this

case and the limits of the court’s review of those decisions.

A. Promotion and Continuation Decisions

Once a naval officer reaches the rank of Lieutenant Commander, a selection board,

known as a promotion board, must recommend any further promotions. See 10 U.S.C. §§

611(a), 628(k). If a naval officer is twice passed over for promotion, the officer is

typically subject to discharge. Id. § 632(a). An officer who has been passed over twice

for promotion may nevertheless remain on active service if a separate board, called a

5

continuation board, selects the officer to continue. Id. § 611(b). The continuation board

may do so “whenever the needs of the service require.” Id.

Under Department of Defense regulations, an officer who has been twice passed

over for promotion will normally be selected for continuation if the officer is within six

years of retirement. Baude v. United States, 955 F.3d 1290, 1293-94 (Fed. Cir. 2020)

(citing Department of Defense Instruction (DoDI) 1320.08 ¶ 6.3). However, a

continuation board may decide not to continue an officer and to discharge the officer

regardless of their retirement date “in unusual circumstances such as when an officer’s

official personnel record contains derogatory information.” Id.; see also Sec’y of the

Navy Instruction (SECNAVINST) 1920.7C ¶ 5(b) (Jan. 22, 2019).

The decisions of Navy promotion and continuation boards are subject to review

within the Navy. The officer may seek review of a promotion board decision by the

Secretary, and if the Secretary finds “material unfairness” in a promotion board’s

decision not to select an officer for promotion, the Secretary under 10 U.S.C. § 628 may

convene a “special selection board” to determine whether the officer should be

recommended for promotion. Id. § 628(b)(1). Similarly, when a continuation board

decides not to continue an officer, the Secretary under 10 U.S.C. § 1558 has the authority

to convene a “special board” to review the continuation board’s decision. Id. § 1558(a)-

(c).

Under 10 U.S.C. §§ 628 and 1558, the Navy was required to issue regulations

governing the Secretary’s review of an officer’s request for review of promotion and

continuation decisions. See §§ 628(j)(1), 1558(e)(1). When LCDR Santana filed the

6

pending case in 2016, the Navy had only issued regulations governing the review of

promotion decisions under § 628. While this case was pending, in April 2019, the Navy

promulgated regulations governing the Secretary’s review of continuation board

decisions under § 1558. See Def.’s App. Accompanying Def.’s Resp. to Pl.’s Mot. for J.

Upon the Administrative R., and Def.’s Cross-Mot. for J. Upon the Administrative R.

(DA) at 1-25. 4

The 2019 regulations governing the Secretary’s review of continuation board

decisions state that the Secretary will convene a special board if the requesting officer

demonstrates by a preponderance of the evidence that either “administrative error

prevented consideration of an officer’s record” or the continuation board “was precluded

from a fair and impartial consideration of an officer’s record due to a material error.” DA

at 21. An officer’s request for a special board to review the continuation decision must

also “demonstrate, by a preponderance of evidence, that the officer maintained

reasonably careful records in order to ensure the completeness and accuracy of the

officer’s record prior to the convening of the board.” DA at 24. Finally, an officer must

request the Secretary’s review of the continuation board’s decision “no later than three

years” after the decision by the continuation board was made public or the officer was

notified of the results, or else the request will be denied as untimely. DA at 24-25.

4 The government’s appendix of military regulations, defined above as DA, is

contained in three docket entries, ECF Nos. 60-1 (DA1-DA64), 64-1 (DA65-DA117),

and 72-1 (DA118-DA252).

7

Federal courts may review cases challenging continuation board decisions, but that

review is limited. Under 10 U.S.C. § 1558(f), a member of the military may not seek

judicial relief from the decision of a continuation board until the Secretary has convened

a special board to review that decision, or the Secretary has decided not to convene a

special board. Santana v. United States, 732 F. App’x 864, 869 (Fed. Cir. 2017). If the

Secretary has decided not to convene a special board, the court may only set aside the

Secretary’s decision if it is “arbitrary or capricious;” “not based on substantial evidence;”

“a result of material error of fact or administrative error; or” “otherwise contrary to law.”

10 U.S.C. § 1558(f)(2)(A). If the court sets aside the Secretary’s decision not to convene

a special board, it “shall remand the case to the Secretary concerned, who shall provide

for consideration by a special board.” Id. § 1558(f)(2)(B).

B. Review Before Disability Evaluation Board and Applications for

Disability Retirement

An officer may be retired for disability where the Secretary determines that the

officer “is unfit to perform the duties of the member’s office, grade, rank, or rating

because of physical disability incurred while entitled to basic pay.” 10 U.S.C. § 1201(a);

see also Chambers v. United States, 417 F.3d 1218, 1223 (Fed. Cir. 2005). The Navy has

also promulgated regulations “for evaluation of physical fitness for duty and disposition

of physical disability.” See SECNAVINST 1850.4E (Apr. 30, 2002). Under those

regulations, the “disability evaluation system”—functioning primarily through physical

evaluation boards—acts on behalf of the Secretary to make determinations about fitness

for active duty, entitlement to disability benefits, and the disposition of members referred

8

for evaluation. SECNAVINST 1850.4E ¶ 4(a). Not all officers are referred to physical

evaluation boards; officers will only be referred for evaluation “by a medical board that

has found the member’s fitness for continued naval service questionable by reason of

physical or mental impairment.” SECNAVINST 1850.4E, encl. 3 § 3201; see also

SECNAVINST 1850.4E, encl. 3 § 3202 (listing circumstances not justifying referral to

an evaluation board, which includes members being processed for separation or

retirement for reasons other than physical disability).

For a separated or retired officer to claim that she should have been referred to the

Navy’s disability evaluation system at the time of her discharge, the officer may apply for

a correction of her military records before the Board for the Correction of Naval Records

(BCNR). SECNAVINST 1850.4E, encl. 2 § 2067 (“Members who have been separated

or permanently retired may still petition the Board for Correction of Naval Records

(BCNR)” for disability relief); see also Chambers, 417 F.3d at 1224-25 (overviewing

process to be undertaken by servicemembers seeking disability retirement). Where an

officer was released from service without being evaluated by a disability evaluation

board, filing an application before the BCNR is a mandatory predicate to filing an action

for relief in federal court. Chambers, 417 F.3d at 1225 (“[W]here the service member

was released from service without a board hearing and subsequently files a claim for

disability retirement before a military correction board . . . the Correction Board

proceeding becomes a mandatory remedy; without it, the case in this court would be

dismissed as premature . . . .”) (internal citations and quotation marks omitted) (emphasis

in original).

9

C. Review of Fitness Reports

When evaluating an officer for promotion or continuation, among the key records

reviewed are fitness reports. See DA at 85 (SECNAVINST 1420.1 ¶ 13d(6), which calls

for “all pertinent records” to be submitted for board review “including fitness reports”).

Fitness reports are prepared by the officer’s reviewing officer and include both an

evaluation of the officer’s performance and a recommendation regarding further

promotion and retention. See Bureau of Naval Personnel Instruction (BUPERSINST)

1610.10E ¶ 1 (Dec. 6, 2019) (stating that “U.S. Navy Regulations, 1990, article 1129,

requires that [FITREPs] be maintained on naval personnel ‘which reflect their fitness for

the Service and performance of duties’” and specifies that they “are the responsibility of

the reporting senior who signs it”).

An officer may take issue with a fitness report by petitioning the BCNR for

correction on the grounds that correction is “necessary to correct an error or remove an

injustice.” 10 U.S.C. § 1552(a)(1). Both the statute and its implementing regulations set

a three-year time limit for challenging fitness reports, which begins after the officer

discovers the “error or injustice” warranting relief. See 10 U.S.C. § 1552(b) (“[n]o

correction may be made under subsection (a)(1) unless the claimant (or the claimant’s

heir or legal representative) or the Secretary concerned files a request for the correction

within three years after discovering the error or injustice”); see also SECNAVINST

5420.193, encl. 1 § 3(b) (“Applications for correction of a record must be filed within 3

years after discovery of the alleged error or injustice.”). Failure to adhere to this time

limit may be excused where the reviewing board “finds it to be in the interests of justice,”

10

10 U.S.C. § 1552(b), but untimely applications “must set forth the reason why the Board

should find it in the interest of justice to excuse the failure to file the application within

the time prescribed,” SECNAVINST 5420.193, enc. 1 § 3(b).

It is against this regulatory background that the court now turns to the facts of this

case.

II. FACTUAL BACKGROUND

LCDR Santana served as an Environmental Health Officer in the Medical Service

Corps of the Navy for seventeen years until her honorable discharge in 2011. In 2004,

LCDR Santana was appointed to Lieutenant Commander. During her service, LCDR

Santana complained about several health deficiencies at some of the bases where she

served, including the improper operation of open air burn pits. See Administrative R.

(AR) at 50-53, ECF No. 53. 5

In March 2009 and March 2010, promotion boards were convened to consider

LCDR Santana for promotion to Commander. Those promotion boards considered

LCDR Santana’s military record—which contained, among other things, LCDR

Santana’s fitness reports—and materials submitted for consideration by LCDR Santana.

See DA at 84 (calling for the Secretary to issue a notice informing officers eligible for

5 The government filed the first administrative record in this case on October 31,

2018. See ECF No. 31. Following the court’s two remand orders and the Secretary’s

final April 21, 2020 decision denying special board review, the government filed a

revised administrative record. ECF No. 53. All of the citations to “AR” in this opinion

refer to the revised administrative record.

11

promotion of their right to “communicate” with the promotion boards and to ensure that

their military records are “substantially accurate and complete”); DA at 85-86 (calling for

the Navy to supply “all pertinent records” to promotion boards, which must include “all

documents, including fitness reports that [were] essential for a fair and substantially

accurate and complete portrayal of [LCDR Santana’s] career” as of their review); see

also Santana v. United States, No. 14-689, Administrative R., ECF No. 18-8 at 39-61, 18-

9 at 1-22 (materials submitted by LCDR Santana for consideration by the March 2010

promotion board and considered by the March 2010 promotion and continuation

boards). 6

LCDR Santana was passed over for promotion by both boards. See AR at 128-30

(list noting that LCDR Santana was eligible, but not selected, for promotion in March

2010). After she was not selected for promotion a second time in March 2010, and

because she would be eligible for retirement within six years, a continuation board was

convened to assess whether to LCDR Santana should remain on active duty. Santana,

No. 14-689, ECF No. 18-10 at 9 (continuation board results for LCDR Santana for FY-

11). Pursuant to SECNAVINST 1920.7B, the continuation board considered the same

materials as the March 2010 promotion board. See DA at 71 (“The provisions for

promotion selection boards . . . regarding notice of convening, precept, membership,

information furnished to the board, communication with selection boards and the

6 When referring to portions of the administrative record filed in Santana, No. 14-

689, the court cites to the page numbers of the docket entry listed, not the bates numbers

included.

12

proceedings are also applicable to continuation selection boards.”); see also Santana, No.

14-689, ECF Nos. 18-5, 18-6, 18-7, 18-8, and 18-9 (file of records for 2010 promotion

and continuation boards). The continuation board decided not to continue LCDR Santana

on active duty. Id., ECF No. 18-10 at 9 (Navy Bureau of Personnel webpage with

negative results of continuation board); ECF No. 18-10 at 16 (certificate of discharge

stating reason for discharge as failure to promote).

On December 7, 2010, the Navy determined that LCDR Santana was found

medically fit for discharge. See Ex. 1 to Pl.’s Reply to Def.’s Opp’n to Pl.’s Mot. for J.

on the Administrative R. and Opp’n to Def.’s Mot. for J. on the Administrative R., ECF

No. 63-1. On January 1, 2011, LCDR Santana was honorably discharged. Santana, No.

14-689, ECF No. 18-10 at 16.

A. LCDR Santana’s Fitness Reports (FITREPs)

The promotion and continuation boards based their decisions on materials that

LCDR Santana submitted and on her military record, which included her FITREPs from

October 2007 through February 2010. See AR at 12-23 (FITREPs); see also Santana,

No. 14-689, ECF Nos. 18-5, 18-6, 18-7, 18-8, and 18-9 (file of records for 2010

promotion and continuation boards). LCDR Santana’s FITREPs in 2007 were positive

and she was deemed “promotable” (though not “must promote” or “early promote”). See,

e.g., AR at 22-23 (FITREP covering February 26, 2007 to October 31, 2007); 20-21

(FITREP covering November 1, 2007 to August 14, 2008). Her later FITREPs, however,

were less positive. In the FITREP covering August 15, 2008 to October 31, 2009, the

reviewing officer found that “LCDR Santana’s inability to establish mutually beneficial

13

working relationships with those both senior and junior to her has impaired her

effectiveness.” AR at 19. Despite this, LCDR Santana was still ranked “promotable,”

but remained in the bottom half of her peer group. Id.

The FITREP covering May 1, 2009 to November 2, 2009, states that it was

“[s]ubmitted on occasion of member’s detachment due to loss of confidence and ability

to perform assigned duties.” AR at 17. The reviewing officer noted that LCDR Santana

performed “below standards” in the areas of teamwork and leadership, that she

“[l]ack[ed] ability to establish cooperative working environment,” that her “[m]ission

accomplishment and initiative skills [were] lacking,” and that she “[l]ack[ed] ability to

motivate or lead subordinates toward accomplishing goals.” Id. at 16-17. The reviewing

officer concluded that “LCDR Santana is not recommended for promotion or

advancement to positions of higher responsibility” and ranked LCDR Santana as having

“significant problems,” the lowest ranking available. Id. at 17.

The next FITREP, which covered November 1, 2009 to February 28, 2010,

indicated that LCDR Santana was continuing to perform “below standards” in the areas

of teamwork and mission accomplishment and initiative (but was now “progressing” in

the area of leadership). AR at 14-15. The reviewing officer noted that LCDR Santana’s

mission contributions “have been negligible,” that LCDR Santana “[a]ctively resists and

requires an inordinate level of oversight to complete valid mission requirements,” and

that she demonstrated an “[u]nrelenting fixation on personal administrative matters,”

which “left her little time for productive work.” Id. at 15. The reviewing officer stated

that, due to LCDR Santana’s “confrontational interpersonal style and inability to

14

collaborate effectively she failed to complete the single project assigned to her” and that

she “has failed to meet minimal expectations of an officer of her grade despite a

disproportionate expenditure of time and energy by [] senior staff . . . to redirect her

energies.” Id. The reviewing officer concluded that “LCDR Santana is not

recommended for promotion or retention” and again ranked her as having “significant

problems.” Id.

LCDR Santana petitioned to correct her adverse FITREPs before the BCNR.

However, on December 17, 2009—between the March 2009 and March 2010 promotion

boards—LCDR Santana submitted a complaint with the Department of Defense Inspector

General, claiming that the adverse fitness reports she received amounted to reprisal

because of alleged whistleblowing. Santana, No. 14-689, ECF No. 18-17 at 3-11. The

Department of Defense Inspector General closed its investigation on June 30, 2010,

concluding that there was “insufficient evidence” to warrant further inquiry into LCDR

Santana’s claims. Id.

On January 31, 2011, LCDR Santana submitted a complaint to the Navy Inspector

General in which she repeated the same allegations she had made in her complaint before

the Department of Defense Inspector General. Santana, No. 14-689, ECF No. 18-15 at

12-14 (report of LCDR Santana’s complaint). The Navy Inspector General closed its

investigation in September 2011 at the written request of LCDR Santana. Id., ECF No.

18-14 at 2.

LCDR Santana submitted a request to the BCNR on January 5, 2011 seeking

review of her discharge. Id., ECF No. 18-10 at 7-8. In that request, LCDR Santana

15

asserted that she should have been continued on active duty service given her proximity

to retirement and that the Navy otherwise erred in discharging her. Id. LCDR Santana’s

request did not seek correction of her adverse FITREPs. Id. On March 7, 2012, LCDR

Santana voluntarily withdrew her request for BCNR review of her discharge, without any

decision from the BCNR. Id., ECF No. 18-10 at 4.

B. LCDR Santana’s Allegations of Sexual Assault

As noted above, LCDR Santana claimed that she was sexually assaulted while

serving in Afghanistan. AR at 223-25 (LCDR Santana’s statement regarding alleged

assault); see also AR at 192-242 (records related to the Navy’s investigation).

The Naval Criminal Investigative Services (NCIS) opened an investigation into

LCDR Santana’s alleged sexual assault on November 12, 2009. AR at 238, 241. The

investigation was closed on June 2, 2010 for “lack of logical leads or suspects.” AR at

218-19. In March 2012, NCIS reopened its investigation for the purpose of conducting

interviews of potentially relevant persons that were not conducted during the initial

investigation. AR at 216-17. After completing those interviews, the NCIS again closed

its investigation citing LCDR Santana’s “inability to identify or recognize any suspect,

the incident not being reported to command personnel . . . , [and] no usable information

being generated from screening interviews or other logical leads or suspects.” AR at

192-94.

LCDR Santana claims that she did not receive any emotional or medical treatment

under the Navy’s victim assistance program, or a referral to the Navy’s disability

16

evaluation system after she reported the assault. 4th Am. Compl. (FAC) ¶ 77, ECF No.

52.

III. PROCEDURAL HISTORY

A. LCDR Santana’s First Military Pay Act Case, No. 14-689C

As noted above, LCDR Santana filed a first action in this court under the Military

Pay Act on August 1, 2014, alleging that the Navy had improperly discharged her in

reprisal for her whistleblowing actions (i.e., her complaints about the improper operation

of open air burn pits). Santana, No. 14-689, Compl. ¶¶ 172-74, ECF No. 1. It was not

disputed that LCDR Santana had started, but had not completed, the legal process for

making whistleblower claims in the Navy. See 10 U.S.C. § 1034 (the Military

Whistleblower Protection Act); see also Santana v. United States, 127 Fed. Cl. 51, 59

(2016) (overviewing the administrative remedial scheme for retaliation claims contained

in the Military Whistleblower Protection Act).

After briefing on cross-motions for judgment on the administrative record was

completed, the government filed a notice stating its intent to argue that, to the extent

LCDR Santana wanted to challenge the Navy’s decisions not to promote or continue her,

10 U.S.C. §§ 628 and 1558 required LCDR Santana to first request that the Secretary

convene a special selection board or a special board before bringing her claims in this

court. Santana, No. 14-689, ECF No. 48. Three days later, on March 12, 2016, LCDR

Santana filed a request to convene a special board to review the decision not to continue

her service with the Secretary under § 1558. AR at 487. In her request she argued that

17

she was improperly discharged “based on improper fitness reports brought in reprisal for

certain protected actions she took while on active duty.” Id.

On June 9, 2016, the court issued its decision in LCDR Santana’s first case. The

court concluded that it did not have jurisdiction to review LCDR Santana’s whistleblower

retaliation claim. Santana, 127 Fed. Cl. at 59. The court further concluded that it could

not review her wrongful discharge claims because she had not first sought review of her

promotion and continuation decisions before the Secretary. Id. at 59-60. On August 3,

2016, LCDR Santana appealed this decision to the Federal Circuit. Santana, No. 14-

689C, ECF No. 62.

B. LCDR Santana Files This Second Military Pay Case, No. 16-1703C

While her request for special board review pursuant to 10 U.S.C. § 1558 and her

Federal Circuit appeal were pending, LCDR Santana filed this case on December 28,

2016. Compl., ECF No. 1. She alleged violations of the Military Pay Act based on the

continuation board’s decision not to continue her on active duty. Id. She did not

challenge the promotion boards’ decisions not to promote her to Commander. Id.

In the complaint, LCDR Santana sought to be returned to active duty “in the grade

of O-4 [Lieutenant Commander] effective January 1, 2011, with back pay and

allowances;” removal of the October 2009, November 2009, and February 2010 adverse

FITREPs from her record; removal of all references to detachment for cause from her

record; removal of all references of failure to select from her record; and, in the

alternative, a return to active duty until eligible to retire and then a transfer to the retired

list, with all back pay and allowances. Id. at 31.

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On January 5, 2017, the court stayed the case pending the Federal Circuit’s

decision on her first case. Order, ECF No. 7.

C. The Secretary Denies LCDR Santana’s First Request for Special Board

Review

While the Federal Circuit appeal was still pending, the Secretary on June 19, 2017

denied LCDR Santana’s March 12, 2016 request to convene a special board to review the

continuation board’s decision not to continue her. AR at 1408-10. The Secretary

interpreted LCDR Santana’s request as one that sought review under both 10 U.S.C. §

1558 (to review her non-continuation decision) and 10 U.S.C. § 628 (to review her non-

promotion decisions). Id. at 1408.

As stated above, at the time of the Secretary’s June 19, 2017 decision denying

special board review, the Navy had only issued regulations implementing 10 U.S.C. §

628 (governing review of promotion decisions). The Navy had not issued regulations to

implement 10 U.S.C. § 1558 (governing review of continuation decisions). For this

reason, the Secretary applied the Navy regulations governing review of promotion

decisions to both decisions. In support of his decision not to revisit the promotion or

continuation decisions, the Secretary found that LCDR Santana’s request filed more than

three years after the decisions were made public was untimely; that she presented no

proof that “material unfairness” affected either decision; and that her allegations that her

adverse FITREPs constituted reprisal were not supported and, accordingly, were “not a

sufficient basis for disregarding the adverse personnel information in [her] file or for

awarding [her] a Special Board.” AR at 1409.

19

D. The Federal Circuit Affirms the Dismissal of Santana’s First Case

On November 22, 2017, the Federal Circuit affirmed this court’s dismissal of

LCDR Santana’s first case, No. 14-689C. Santana, 732 F. App’x at 864. The Federal

Circuit did not reach this court’s holding that it lacked jurisdiction over LCDR Santana’s

whistleblower claim. Id. at 871 n.4. Instead, the Federal Circuit determined that Ҥ

1558(f) bars a member of the military from seeking judicial relief from the decision of a

continuation board until the Secretary has convened a special board to review the

decision or has decided not to convene one.” Id. at 869. Because LCDR Santana had not

requested or received a decision by the Secretary regarding special board review prior to

filing the complaint in her first case, the Federal Circuit concluded that she had not

exhausted her administrative remedies and that dismissal was warranted. Id. at 870.

E. LCDR Santana Files the Second and Third Amended Complaints

Following the Federal Circuit’s decision, this court lifted the stay of this case. On

February 21, 2018, LCDR Santana filed a second amended complaint. In addition to

challenging the continuation board’s decision not to continue her, the complaint also

included a challenge to the Secretary’s June 19, 2017 decision denying special board

review. For the first time, LCDR Santana also included allegations that the Navy

wrongfully discharged her from active service due to “failure to treat her for post

traumatic stress an to refer her to the disability evaluation system.” 2d Am. Compl. at 1,

ECF No. 13-1.

20

Like the original complaint, the second amended complaint sought removal of the

adverse FITREPs from LCDR Santana’s record and a return to active-duty effective

January 1, 2011 with back pay and allowances. In addition, the second amended

complaint asked that LCDR Santana be “medically retired in pay grade O-4 effective

January 1, 2011 with all back pay and allowances” and that the Secretary convene a

special board pursuant to 10 U.S.C. § 1558. Id. at 24.

On July 18, 2018, LCDR Santana died. AR at 187. On October 5, 2018, plaintiff,

acting on behalf of LCDR Santana, filed a third amended complaint acknowledging

LCDR Santana’s death. 3d Am. Compl., ECF No. 28.

F. The Court Twice Remands the Denial of Special Board Review

On November 21, 2018, the government moved for a voluntary remand to permit

another review of LCDR Santana’s request for a special board following the Navy’s

anticipated issuance of implementing regulations for 10 U.S.C. § 1558 (which did not

exist when her initial request was denied on June 19, 2017). Def.’s Mot. for Voluntary

Remand, ECF No. 32. Following oral argument, on December 18, 2018, this court

granted the motion and ordered that the government “rescind its June 2017 decision, and .

. . issue a new decision in accordance with [N]avy regulations to be promulgated pursuant

to 10 U.S.C. § 1558.” Order, ECF No. 36.

In April 2019, the Navy issued implementing regulations for § 1558 under

SECNAVINST 1402.1. See DA at 1-25. On May 31, 2019, plaintiff submitted to the

Secretary a new request for a special board pursuant to § 1558 and SECNAVINST

1402.1. AR at 35-49. Plaintiff “specifically” requested that the “special board . . .

21

consider whether there was a material error at [LCDR Santana’s] continuation board.”

AR at 35. Plaintiff argued that LCDR Santana’s adverse FITREPs amounted to reprisal

and that LCDR Santana was effectively detached for cause. Id. at 37-48. Plaintiff further

contended that LCDR Santana was “separated without benefit of the disability evaluation

system despite the foreseeable post traumatic stress” that resulted from being sexually

assaulted while on duty. Id. at 48-49. Plaintiff also argued that, contrary to the policy of

the Navy’s Sexual Assault Victim Intervention Program, the Commander, Navy

Personnel Command did not review the decision not to continue LCDR Santana prior to

her discharge. Id. at 49.

In December 2019, the Navy denied plaintiff’s May 31, 2019 request for special

board review. AR at 1359-63. However, on January 31, 2020, the court granted a second

request for voluntary remand of that denial in light of the Secretary’s failure to consider

the supplemental arguments proffered by plaintiff. Order, ECF No. 47.

On April 21, 2020, the Secretary issued his final decision denying plaintiff’s May

31, 2019 request to convene a special board pursuant to 10 U.S.C. § 1558. AR at 1-6.

The Secretary based the denial on three independent grounds. First, the Secretary stated

that plaintiff’s request was untimely because it was submitted more than three years after

LCDR Santana learned of the non-continuation decision. Id. at 4-5, 6. Second, the

Secretary stated that plaintiff’s request failed to detail any steps LCDR Santana took to

ensure the accuracy of her record—including the accuracy of her adverse FITREPs—

before the continuation board made its decision. Id. at 5-6. Third, the Secretary stated

that plaintiff had not shown by a preponderance of the evidence that the decision of the

22

continuation board was affected by material error. 7 Id. Specifically, the Secretary

determined that the adverse FITREPs considered by the continuation board properly

remained in LCDR Santana’s record, either because she had not challenged them or

because such challenges were rejected as meritless. Id. Accordingly, the Secretary

concluded that, contrary to plaintiff’s arguments, the continuation board’s consideration

of the adverse FITREPs was not a material error. Id.

The Secretary also determined that, absent evidence to the contrary, Navy officials

are afforded a strong presumption of regularity in their actions, AR at 2, and that

“evidence supports that FITREPs were properly completed,” reviewed, and accepted in

accordance with Navy regulation and policy. AR at 5-6. The Secretary did not expressly

address plaintiff’s claim that the Navy had erred by not referring LCDR Santana to the

disability evaluation system and by failing to treat LCDR Santana’s post-traumatic stress,

but stated that these issues were not “germane” to the request for special board review of

the non-continuation decision. AR at 4. The Secretary also noted that the Navy had

conducted and closed an investigation into LCDR Santana’s sexual assault allegations.

Id.

7 The Navy also affirmed its June 2017 decision rejecting LCDR Santana’s request

for review of its decisions not to promote her pursuant to 10 U.S.C. § 628. AR at 6.

LCDR Santana does not challenge the § 628 decision in any of her complaints.

23

G. Plaintiff Files the Operative Complaint and the Parties Brief the

Pending Motions

On June 12, 2020, plaintiff filed a fourth amended complaint in this case,

challenging the Navy’s non-continuation decision, the Secretary’s final April 21, 2020

denial of special board review, and the Navy’s failure to treat LCDR Santana’s post-

traumatic stress disorder or refer LCDR Santana to the Navy’s disability evaluation

system. See generally FAC. Like the second and third amended complaints, the fourth

amended complaint sought medical retirement with all back pay and allowances; removal

of the adverse FITREPs from LCDR Santana’s record; review by a special board

pursuant to 10 U.S.C. § 1558; and, alternatively, a return to active duty with back pay and

allowances until eligible for retirement and a subsequent transfer to the retired list until

the date of LCDR Santana’s death. Id. at 25. The fourth amended complaint is the

operative complaint.

The Navy then filed the administrative record and briefing commenced. Briefing

was completed on November 23, 2020, and the court held oral argument on March 22,

2021. Following oral argument, the court ordered supplemental briefing on the

applicability of Chief of Naval Operations Instruction (OPNAVINST) 1752.1B, the

Sexual Assault Victim Intervention (SAVI) Program, to the Secretary’s decision. See

ECF No. 69. Supplemental briefing was completed on June 1, 2021. See ECF Nos. 72,

75.

24

IV. DISCUSSION

The Military Pay Act provides this court jurisdiction over wrongful discharge

claims seeking back pay and allowances and related equitable relief, including equitable

relief under 10 U.S.C. § 1558. Baude v. United States, 137 Fed. Cl. 441, 449 (2018),

rev’d on other grounds, 955 F.3d 1290 (Fed. Cir. 2020). However, the government

argues here that certain claims raised in plaintiff’s operative complaint should be

dismissed because they are untimely or are unrelated to plaintiff’s wrongful discharge

claims and otherwise fall outside of the court’s jurisdiction. The court will first address

the government’s motion to dismiss these claims and will then turn to the parties’ cross-

motions for judgment on the administrative record.

A. The Government’s Motion to Dismiss

The operative complaint contains allegations regarding the manipulation of

medical records, violations of the First Amendment, sexual harassment and assault,

sanitation, health and safety, deprivations of liberty and property, and discrimination. To

the extent plaintiff is asserting any claims regarding these allegations, the government

argues in its motion to dismiss that these claims are not independently money-mandating

and are thus outside the jurisdiction of this court or, in the alternative, fail to state a

plausible claim. See Def.’s Mot. to Dismiss at 5-9; see also supra n.3. In response,

plaintiff states that she did not intend for these allegations to raise independent legal

claims. See Pl.’s Opp’n & Cross-Mot. at 12-13 (stating that “no whistleblower claims, if

they ever existed, survived” the court’s opinion dismissing LCDR Santana’s initial case

and that, aside from the claims rooted in LCDR Santana’s alleged wrongful discharge,

25

“there are no other claims within the four corners of the complaint”). Given plaintiff’s

concession, the court does not address this portion of the government’s motion to

dismiss.

In addition to the foregoing, the government moves to dismiss plaintiff’s claim for

disability retirement based on allegations of the Navy’s failure to evaluate or treat LCDR

Santana for post-traumatic stress disorder stemming from her alleged sexual assault.

Def.’s Mot. to Dismiss at 2-4. The government argues that, because the claim for

disability retirement based on post-traumatic stress disorder was raised for the first time

in the second amended complaint filed on February 21, 2018, it was filed more than six

years after LCDR Santana’s discharge and is thus time barred under 28 U.S.C. § 2501.

Claims brought before this court based on the Tucker Act are barred as untimely

unless they are filed “within six years after such claim first accrues.” 28 U.S.C. § 2501.

The Tucker Act’s six-year statute of limitations is a jurisdictional requirement. John R.

Sand & Gravel Co. v. United States, 457 F.3d 1345, 1354 (Fed. Cir. 2006), aff’d, 552

U.S. 130 (2008). Military pay claims accrue upon discharge, which for LCDR Santana

was January 1, 2011. See MacLean v. United States, 454 F.3d 1334, 1336 (Fed. Cir.

2006) (quoting Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003)). There

is no dispute that allegations related to LCDR Santana’s alleged post-traumatic stress

disorder and claims for disability retirement were raised for the first time in the February

21, 2018 second amended complaint, which was filed outside the statute of limitations

period. Therefore, unless the post-traumatic stress disorder related claims relate back to

26

allegations in the original complaint, the claims for relief based on LCDR Santana’s

alleged post-traumatic stress disorder must be dismissed.

To “relate back,” the operative facts in the original complaint must have put the

government on notice of the claims related to LCDR Santana’s alleged post-traumatic

stress disorder. See RCFC 15(c)(1)(B) (allowing for “relation back” where “the

amendment asserts a claim or defense that arose out of the conduct, transaction, or

occurrence set out—or attempted to be set out—in the original pleading”); see also Anza

Tech., Inc. v. Mushkin, Inc., 934 F.3d 1359, 1368 (Fed. Cir. 2019) (explaining that Rule

15(c)(1)(B)’s requirements seek to ensure that “a party who has been notified of litigation

concerning a particular occurrence has been give[n] all the notice that statutes of

limitations were intended to provide.”) (quoting Baldwin Cty. Welcome Ctr. v. Brown,

466 U.S. 147, 149 n.3 (1984)). When assessing whether the original complaint put a

party on notice of claims raised more specifically in later amendments, the Federal

Circuit uses the “logical relationship standard,” which asks “whether the facts underlying

the alleged claims ‘share an aggregate of operative facts.’” Anza Tech., Inc., 934 F.3d at

1369 (quoting In re EMC Corp., 677 F.3d 1351, 1359 (Fed. Cir. 2012)). “[A]t bottom,”

the court must ask “whether the general factual situation or the aggregate of operative

facts underlying the original claim for relief gave notice to [the defendant] of the nature

of the allegations it was being called upon to answer.” Id. at 1369-70.

The government argues that LCDR Santana’s original December 28, 2016

complaint challenged only “the deprivation of pay caused by [LCDR Santana’s]

discharge which was based upon her non-continuation and the refusal of the Secretary of

27

the Navy to restore her to active duty,” Compl. at 1, and did not put the government on

notice of her claim that the Navy wrongfully discharged her when it failed to treat or

evaluate her alleged post-traumatic stress disorder, Def.’s Mot. to Dismiss at 4. Plaintiff

argues that the allegations about the Navy’s failure to evaluate or treat LCDR Santana’s

post-traumatic stress disorder “relate back” to the claims raised in the original complaint

under RCFC 15(c) because these allegations also arise from the “wrongful discharge

cause of action.” 8 Pl.’s Opp’n & Cross-Mot. at 9-10; see also Oral Arg. Transcript (Tr.)

at 4:2-10, ECF No. 68. (arguing that allegations about fitness for discharge and post-

traumatic stress are “issues flowing from the original claim” of wrongful discharge). The

court agrees with the government.

To begin, while both part of the discharge process, the Navy’s non-continuation

decision (upheld by the Secretary) and the Navy’s decision deeming LCDR Santana fit

for discharge are different military determinations made at different times pursuant to

different statutes and regulations. At the time of LCDR Santana’s discharge, non-

continuation decisions were governed by 10 U.S.C. § 637, the statute permitting officers

subject to discharge or retirement for failure to be selected for promotion to be continued

8 Plaintiff also argues that because both the government and this court agreed to

LCDR Santana filing a second amended complaint, the court has somehow accepted that

the allegations regarding LCDR Santana’s fitness for discharge “relate back” to the

original complaint and are accordingly timely. The court disagrees. The court has never

held that the new claim relates back to LCDR Santana’s original complaint and, as the

government correctly argues, satisfying the six-year statute of limitations set forth in 28

U.S.C. § 2501 is a jurisdictional prerequisite to bringing a claim before this court, which

is not subject to waiver and may be raised at any time. See John R. Sand & Gravel Co.,

552 U.S. at 133-34; RCFC 12(h).

28

on active duty, along with both SECNAVINST 1920.7B, which established the policies

and procedures that governed the Naval continuation boards making those decisions and

DoDI 1320.8, which established the policies and procedures that governed continuation

of all military officers. In contrast, decisions related to disability retirement were

governed by 10 U.S.C. § 1201, the statute permitting the Secretary to retire members who

are “unfit to perform” their duties because of a disability incurred while serving, and

SECNAVINST 1850.4E, which established the policies and procedures for evaluating

physical disabilities.

The two decisions involve different factual predicates and administrative

records—one related to an officer’s performance as an officer, and the other related to an

officer’s health. Compare Philippeaux v. United States, No. 20-275, 2020 WL 7042908

at *4 (Fed. Cl. Dec. 1, 2020) (addressing allegation that the Navy improperly discharged

officer without a permanent disability designation by reviewing physical evaluation

boards and disability evaluation system counselors (among others) to determine whether

the officer was physically able to “perform the duties of his office, grade, rank, or rating

in such a manner as to reasonably fulfill the purpose of his employment on active duty”)

with Santana, No. 14-689, ECF Nos. 18-5, 18-6, 18-7, 18-8, and 18-9 (records presented

before the promotion and continuation boards for review, including fitness reports,

medals, and commendations documenting LCDR Santana’s job performance throughout

her career). The two decisions also have different administrative review procedures and

exhaustion requirements. Compare 10 U.S.C. § 1558 (calling for challengers to non-

continuation decisions to petition the Secretary to convene a special board to review

29

before petitioning for judicial review) with 10 U.S.C. § 1552 (calling for challengers of

disability determinations to petition the Secretary to convene a board to consider whether

it is necessary to “correct any military record . . . to correct an error or remove an

injustice”), § 1553 (calling for challengers of discharges or dismissals to file a motion or

request for review with the Secretary).

The original complaint also lacks the “operative facts” that would support

plaintiff’s claim for disability retirement. Although the original complaint references

LCDR Santana’s sexual assault allegations, Compl. ¶¶ 98-106, 118, 120, 131, 136, 147,

152, it did not include facts that would have put the Navy on notice that it would have to

answer claims asserting that LCDR Santana should have been discharged on a disability

as a result. For example, the original complaint does not include any allegations about a

post-traumatic stress condition, the Navy’s disability evaluation system, or LCDR

Santana’s fitness for discharge. Indeed, there are no allegations disputing the Navy’s

conclusion that LCDR Santana was fit for discharge. Instead, the original complaint

contained facts that contradict a claim based on post-traumatic stress disorder, stating

that, when discharged, LCDR Santana “was given a clean bill of psychiatric health” in

support of the argument that LCDR Santana should be restored to active duty. Compl. ¶

153-54.

The original complaint also does not include any request for relief related to

LCDR Santana’s alleged post-traumatic stress disorder such as placement on disability

retirement. Compl. at 31 (seeking reinstatement to active duty with back pay and

allowances, removal of certain items from her military record, and costs). This request

30

for relief is included for the first time in the second amended complaint, which was filed

outside of the statute of limitations period. See 2d Am. Compl. at 1, ECF No. 13-1

(stating that lawsuit is “brought solely because of the deprivation of pay caused by the

plaintiff’s discharge which was based upon her non-continuation . . . and for the

improper discharge from the active service due to failure to treat her for post traumatic

stress an to refer her to the disability evaluation system”) (emphasis added); 24 (seeking

medical retirement in pay grade O-4 effective January 1, 2011 with all back pay and

allowances).

Given these facts, the court concludes that there is not a logical relationship

between the allegations in the original complaint and the second amended complaint that

would have put the government on notice of the later-raised claims related to post-

traumatic stress disorder and disability retirement. Accordingly, claims related to LCDR

Santana’s alleged post-traumatic stress and for disability retirement do not “relate back”

to the original complaint. See Geospatial Tech. Assoc., LLC v. United States, No. 16-

346C, 2019 WL 6712094 at *7, n.5 (Fed. Cl. Nov. 5, 2019) (concluding that claims

raised for the first time in amended complaint should not relate back to the original where

such claims were “based upon newly alleged conduct and may involve different evidence

than the evidence required to resolve” claims raised in the original complaint). Those

claims, raised for the first time in plaintiff’s February 21, 2018 complaint, are therefore

untimely and must be dismissed for lack of jurisdiction. John R. Sand & Gravel Co, 457

F.3d at 1355. Accordingly, the government’s motion for partial dismissal is granted.

31

This leaves two of plaintiff’s claims before the court: (1) that the continuation

board’s decision not to continue LCDR Santana was arbitrary, capricious, not based on

substantial evidence, a result of material error of fact or material administrative error, or

otherwise contrary to law; and (2) that the Secretary’s most recent decision to deny

special board review of the continuation board’s decision was similarly problematic. The

court now turns to the parties’ cross-motions for judgment on the administrative record,

which address these two remaining claims.

B. The Cross-Motions for Judgment on the Administrative Record

The parties’ cross-motions for judgment on the administrative record, ECF Nos.

59 and 60, involve the Navy’s actions surrounding LCDR Santana’s non-continuation

and discharge, culminating in the Secretary’s denial of special board review under 10

U.S.C. § 1558. The Federal Circuit has held that courts will not disturb a § 1558 decision

“denying a special board to correct the decision of a [continuation board] ‘unless it is

arbitrary, capricious, contrary to law, or unsupported by substantial evidence.’” Baude,

955 F.3d at 1298 (quoting Barnick v. United States, 591 F.3d 1372, 1377 (Fed. Cir. 2010)

and 10 U.S.C. § 1558(f)(2)(A)(i)-(iv)).

1. The Scope of the Court’s Review under 10 U.S.C. § 1558 is

Limited to the Secretary’s Decision Not to Convene A Special

Board.

As an initial matter, the parties dispute the scope of this court’s review under 10

U.S.C. § 1558. Plaintiff challenges both the continuation board’s decision and the

Secretary’s decision denying special board review under § 1558. Pl.’s Reply to Def.’s

Opp’n to Pl.’s Mot. for J. on the Administrative R. and Opp’n to Def.’s Mot. for J. on the

32

Administrative R. (Pl.’s Reply & Opp’n), ECF No. 63 at 4-5; see also Pl.’s Reply &

Opp’n at 5-10 (arguing that the continuation board’s decision is arbitrary, capricious,

unsupported by substantial evidence, and otherwise contrary to law). The government

argues that this court may only review the Secretary’s decision not to convene a special

board. Def.’s Reply & Cross-Mot. at 19-21. For the reasons set forth below, the court

agrees with the government that it may only review the Secretary’s decision not to

convene a special board. While review of the Secretary’s decision necessarily involves

consideration of the continuation board’s decision, the court may not, as discussed below,

separately review the continuation board’s decision under the applicable statute.

When read as a whole, § 1558(f) only permits the court to review the Secretary’s

decision. See Safeguard Base Operations, LLC v. United States, 989 F.3d 1326, 1342

(Fed. Cir. 2021) (“The meaning of statutory language, plain or not, thus depends on

context.”) (quoting Barela v. Shinseki, 584 F.3d 1379, 1382-83 (Fed. Cir. 2009)). Under

10 U.S.C. § 1558(f)(1)

A person seeking to challenge an action or recommendation of a selection

board, or an action taken by the Secretary of the military department

concerned on the report of a selection board, is not entitled to relief in any

judicial proceeding unless the action or recommendation has first been

considered by a special board under this section or the Secretary concerned

has denied the convening of such a board for such consideration.

10 U.S.C. § 1558(f)(1). The following subsection—10 U.S.C. § 1558(f)(2)—discusses

what courts are permitted to do when faced with a decision denying special board review.

The statute specifically permits courts to “review a determination by the Secretary of a

military department not to convene a special board in the case of any person” and permits

33

reversal where the determination not to convene a special board is arbitrary or capricious,

not based on substantial evidence, a result of a material error of fact or material

administrative error, or is otherwise contrary to law. 10 U.S.C. § 1558(f)(2)(A)

(emphasis added). The statute then states that where a court “sets aside a determination

by the Secretary of a military department not to convene a special board, it shall remand

the case to the Secretary concerned, who shall provide for consideration by a special

board.” 10 U.S.C. § 1558(f)(2)(B) (emphasis added). In short, the statute allows this

court to review and set aside decisions by the Secretary denying special board review

under 10 U.S.C. § 1558 and directs this court to remand any decisions set aside for

mandatory consideration by a special board. The statute does not permit this court to

separately review and overturn the underlying non-continuation decision.

This reading is supported by the Federal Circuit’s decision in Santana. There, the

Federal Circuit concluded that LCDR Santana’s judicial challenge of the non-

continuation decision was premature because it had been brought before she had

exhausted the administrative remedies outlined in § 1558. Santana, 732 F. App’x at 870.

The Federal Circuit noted that under § 1558(f)’s judicial review scheme, it is the

“decision of a special board, or the Secretary’s determination not to convene a special

board,” that “is subject to judicial review.” 732 F. App’x at 869.

Plaintiff’s arguments challenging the limits of this court’s review do not compel a

different result. First, plaintiff argues that this reading of 10 U.S.C. § 1558(f)’s plain

language is “absurd” as it empowers the Navy to “circumvent the underlying actions

coming to the board by simply refusing to convene it.” Pl.’s Reply & Opp’n at 4. The

34

court disagrees. If the Secretary does not convene a special board, the court is tasked

with determining whether the Secretary’s determination is supported or if the

continuation decision should be reviewed by a special board. This necessarily requires

the court to examine the underlying non-continuation decision and the Secretary’s review

of that decision. If the court determines that the Secretary’s decision is not supported or

is contrary to law, the court is authorized to order the Secretary to convene a special

board to review and possibly correct a non-continuation decision. 10 U.S.C. §

1558(f)(2)(A)-(B). The court may also review the decision by a special board or an

action of the Secretary taken on the report of a special board, and may set aside that

recommendation or action. 10 U.S.C. § 1558(f)(3). For these reasons, plaintiff’s claim

that the government’s reading of the statute could lead to the Navy circumventing judicial

review of a non-continuation decision is without merit.

Second, plaintiff argues that the government’s reading does not comport with the

plain language of 10 U.S.C. § 1558(f)(1). That subsection states that officers challenging

non-continuation decisions are “not entitled to relief in any judicial proceeding unless the

action or recommendation has first been considered by a special board under this section

or the Secretary concerned has denied the convening of such a board for such

consideration.” 10 U.S.C. § 1558(f)(1). Plaintiff posits that the use of “or” in this

subsection suggests that this court has discretion to review a non-continuation decision

where either a special board has refused to act on that decision or the Secretary denies a

request to convene one. Pl.’s Reply & Opp’n at 4-5. Based on the larger statutory

context, however, this court disagrees with plaintiff’s reading. The court acknowledges

35

that 10 U.S.C. § 1558(f)(1) permits judicial review when either a special board is

convened but does not revise the non-continuation decision or when the Secretary

declines to convene a special board at all. The following subsections, however, explain

the limited parameters of the court’s review. Relevant here, 10 U.S.C. § 1558(f)(2)(A)

permits judicial review of the Secretary’s decision not to convene a special board, and 10

U.S.C. § 1558(f)(2)(B) precisely outlines what a court may do when it finds that such a

decision must be reversed: remand the matter to the Secretary with instructions that the

non-continuation decision be reviewed by a special board. See Santana, 732 F. App’x at

869 (holding that “the decision of a special board or the Secretary’s determination not to

convene a special board, is subject to judicial review,” citing the standards of §

1558(f)(2)-(3)). When read as a whole, therefore, the statute does not permit the court to

review the non-continuation decision separately from its review of the Secretary’s

decision.

Because the court may not separately review the continuation board’s decision,

only one claim remains before the court, namely whether the Secretary’s April 21, 2020

decision to deny special board review was arbitrary, capricious, contrary to law, or

unsupported by substantial evidence. The court now turns to that claim.

2. The Secretary’s Decision Is Not Arbitrary, Capricious,

Unsupported by Substantial Evidence, or Contrary to Law.

The Secretary’s decision is governed by the Navy’s April 2019 implementing

regulations issued pursuant to § 1558. Among other things, the regulations call for an

officer to demonstrate three things. First, the requesting officer must demonstrate by a

36

preponderance of the evidence that either “administrative error prevented consideration

of an officer’s record before a board” or the continuation board “was precluded from a

fair and impartial consideration of an officer’s record due to a material error.” DA at 21.

Second, the officer must “demonstrate, by a preponderance of the evidence, that the

officer maintained reasonably careful records in order to ensure the completeness and

accuracy of the officer’s record prior to the convening of the board.” DA at 24. Finally,

an officer must file the request with the Secretary for special board review “no later than

three years” after the continuation board’s decision was made public or the officer was

notified of the decision, or else the request will be denied as untimely. DA at 24-25.

Here, the Secretary denied plaintiff’s request for a special board on the grounds

that plaintiff failed to meet all three of these regulatory requirements. First, the Secretary

concluded that plaintiff’s petition was untimely because it was submitted more than three

years after LCDR Santana was informed of the continuation board’s decision. AR at 6.

Second, the Secretary found that the request failed to detail any steps taken to ensure the

accuracy of LCDR Santana’s FITREPs prior to the 2010 continuation board convening.

Id. Third, the Secretary concluded that plaintiff failed to show by a preponderance of the

evidence that the continuation board’s decision was affected by any material error. Id. In

reviewing this decision, the court under § 1558 will set aside the Secretary’s

determination only if it is arbitrary or capricious, not based on substantial evidence, or

contrary to law. 10 U.S.C. § 1558(f)(2)(A).

Plaintiff challenges the Secretary’s denial of special board review by arguing: (1)

the Secretary improperly applied the implementing regulations passed in April 2019 in

37

evaluating plaintiff’s latest request for a special board as those regulations did not exist in

2016, when LCDR Santana originally requested a special board; and (2) even if the April

2019 regulations were properly applied, the Secretary’s decision to uphold the

continuation board’s decision was arbitrary and capricious, not supported by the record,

and contrary to law. The court addresses these arguments in turn.

First, the court agrees with the government that the Secretary properly applied the

April 2019 implementing regulations in evaluating the request for special board review.

The court expressly ordered on remand that the Secretary use the April 2019

implementing regulations and vacated the Secretary’s earlier decisions that did not use

these regulations. See Order, ECF No. 36. By court order, therefore, the April 2019

regulations applied. 9 In addition, plaintiff’s most recent request for special board review,

submitted a month after the April 2019 regulations were passed, did not ask the Secretary

to waive any of the requirements imposed by the April 2019 regulations. See AR at 35-

49. By not raising this issue at the administrative level, plaintiff has waived it here. See

Metz v. United States, 466 F.3d 991, 999 (Fed. Cir. 2006) (“The failure to raise an issue

at the administrative level waives the right to appellate review of that issue.”) (quoting

Sw. Bell Tel. Co. v. Pub. Util. Comm’n, 208 F.3d 475, 487 (5th Cir. 2000)).

9 The court notes that plaintiff opposed the Navy’s motion to remand this case to the

Secretary. See Pl.’s Opp’n, ECF No. 33. Plaintiff proffered two arguments in

opposition: (1) the governing statute, 10 U.S.C. § 1558, did not provide for

reconsideration of the Secretary’s denial of special board review; and (2) the

government’s request was not ripe as the implementing regulations for 10 U.S.C. § 1558

had not yet been approved and promulgated. Id. at 2-3. Plaintiff did not argue that the

implementing regulations, if issued, should not apply to the request for a special board.

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Having found that the 2019 regulations apply, the court agrees with the

government that the Secretary’s denial of special board review may be upheld

independently on each of the three grounds addressed by the Secretary—untimeliness,

lack of evidence or explanation of adequate record keeping, and insufficient evidence of

material error in the continuation board’s decision.

To begin, the court agrees with the government that the Secretary’s conclusion

that plaintiff’s request for special board review was untimely was not arbitrary,

capricious, unsupported by substantial evidence, or contrary to law. Plaintiff’s May 31,

2019 request was undisputedly filed more than three years after LCDR Santana learned

of the non-continuation decision, as was the original request filed on March 12, 2016. 10

Plaintiff claims that imposing a three-year limitation is unfair. See, e.g., Pl.’s Opp’n &

Cross Mot. at 34-36. However, as discussed above, plaintiff did not object to the three-

year limitations period in the most recent request for special board review filed before the

Secretary, and thus the objection has been waived. See AR at 35-49 (May 31, 2019

request for special board review); see also Metz, 466 F.3d at 999.

The court also agrees with the government that the Secretary’s conclusion that

plaintiff did not show that LCDR Santana maintained reasonably careful records was not

arbitrary, capricious, unsupported by substantial evidence, or contrary to law. Plaintiff’s

most recent request for special board review did not detail any steps that LCDR Santana

10 The Secretary in his 2017 decision found that LCDR Santana’s original 2016

request, filed five years after her discharge, was untimely. See AR at 1408-10.

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took to ensure the accuracy of her records prior to the 2010 continuation board, as

required by the implementing regulations. See AR at 35-49. In addition, in none of

plaintiff’s filings before this court does plaintiff explicitly challenge this aspect of the

Secretary’s decision.

Indeed, as the Secretary correctly states in his decision, the record demonstrates

that LCDR Santana’s efforts to correct her adverse FITREPs before and after the

continuation board convened were either unsuccessful or voluntarily withdrawn. See AR

at 6 (“LCDR Santana’s reprisal complaint was investigated and determined to be

unsubstantiated by the Navy IG and she later withdrew her BCNR petition.”).

Specifically, LCDR Santana challenged her adverse FITREPs before the Department of

Defense Inspector General in 2009, before the 2010 continuation board convened, on the

grounds that her adverse FITREPs were issued in retaliation to her challenges of the

Navy’s improper operation of open air burn pits. The Department of Defense Inspector

General’s investigation was closed after it concluded that it could not find sufficient

evidence to support LCDR Santana’s retaliation claim. See Santana, No. 14-689, ECF

No. 18-17 at 3-11. Following the 2010 continuation decision, LCDR Santana challenged

her adverse FITREPs before the Navy Inspector General and challenged her discharge

before the BCNR, but both challenges were voluntarily withdrawn. Id., ECF No. 18-15

at 12-14 (report of complaint submitted to the Navy Inspector General alleging that her

adverse FITREPs amounted to reprisal); ECF No. 18-14 at 2 (letter informing LCDR

Santana that Navy Inspector General closed its investigation into her reprisal allegations

at her request); ECF No. 18-10 at 7-8 (application for correction of records filed with the

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BCNR seeking reinstatement following wrongful discharge); ECF No. 18-10 at 4 (letter

withdrawing application before the BCNR).

In view of the foregoing, the Secretary’s conclusion that plaintiff failed to

document her efforts to ensure the accuracy of LCDR Santana’s records is well-supported

and does not provide a basis for setting aside the Secretary’s decision.

Finally, the court concludes that the Secretary’s decision not to convene a special

board on the grounds that plaintiff failed to show a material error in the continuation

board’s decision is supported and thus must be affirmed. While it is true, as plaintiff

argues, that officers within six years of retirement “shall normally be selected for

continuation,” continuation boards may elect not to continue officers “in unusual

circumstances such as when an officer’s official personnel record contains derogatory

information.” Baude, 955 F.3d at 1293-94 (quoting DoDI 1320.08 ¶ 6.3)). Here, the

Secretary reasonably relied on the adverse FITREPs in LCDR Santana’s record to

conclude that there was no evidence of material error in the continuation board’s decision

not to continue her on active duty. See AR at 5-6; see also AR at 16-17 (FITREP

covering May 1, 2009 to November 2, 2009, stating that LCDR Santana performed

“below standards” in the areas of teamwork and leadership, that she “[l]ack[ed] ability to

establish cooperative working environment,” that her “[m]ission accomplishment and

initiative skills [were] lacking,” and that she “[l]ack[ed] ability to motivate or lead

subordinates toward accomplishing goals.”); AR at 14-15 (FITREP covering November

1, 2009 to February 28, 2010, stating that LCDR Santana performed “below standards” in

the areas of teamwork and mission accomplishment and initiative and that due to LCDR

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Santana’s “confrontational interpersonal style and inability to collaborate effectively, she

failed to complete the single project assigned to her” and that she “has failed to meet

minimal expectations of an officer of her grade despite a disproportionate expenditure of

time and energy by [] senior staff . . . to redirect her energies”). This final FITREP

specifically stated that “LCDR Santana is not recommended for promotion or retention.”

AR at 15

To the extent plaintiff challenges the accuracy of these FITREPs before this court,

that challenge is unavailing. As stated above, LCDR Santana’s attempts to challenge the

accuracy of these records before the Navy were either unsuccessful or voluntarily

abandoned. Santana, No. 14-689, ECF No. 18-17 at 2 (letter from Department of

Defense Inspector General informing LCDR Santana that there was “insufficient

evidence of reprisal to warrant further inquiry” into her allegations in light of her adverse

FITREPs and closing her case); ECF No. 18-14 at 2 (letter informing LCDR Santana that

Navy Inspector General closed its investigation into her February 2011 reprisal

allegations at LCDR Santana’s request). In such circumstances, the FITREPs were

properly maintained in LCDR Santana’s record and the Secretary reasonably relied on

them in deciding not to convene a special board. Based on these FITREPs, the Secretary

found that there was derogatory information in LCDR Santana’s military record that

justified non-continuation, including her final FITREP, which expressly stated that

LCDR Santana should not be retained in the Navy. See AR at 14-15. As such, the

Secretary’s decision that the continuation board did not make a material error based on

LCDR Santana’s record is supported and under § 1558(f) must be upheld.

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Plaintiff’s arguments that the Secretary ignored other “material errors” in the

continuation board decision are without merit. First, plaintiff argues that the continuation

board violated controlling regulations when it failed to notify the Secretary of Defense of

the bases of its non-continuation decision. See Pl.’s Opp’n & Cross-Mot. at 18-19 (citing

DoDI 1320.08 and SECNAVINST 1920.7B). Contrary to plaintiff’s arguments,

however, that requirement was no longer in effect when LCDR Santana was not

continued in 2010, and thus cannot serve as a basis for finding a material error. Compare

DA at 28, Dep’t of Defense Directive 1320.8 ¶ 4.3 (Dep’t of Defense Oct. 21, 1996)

(“The Secretaries of the Military Departments concerned may, in unusual circumstances,

discharge involuntarily such officers in accordance with Section 632 of reference (b)

after notifying the Secretary of Defense of the rationale for this action.”) with DA at 37,

Dep’t of Defense Directive 1320.08 ¶ 6.3.1 (Dep’t of Defense March 14, 2007) (“The

Secretary of the Military Department concerned may, in unusual circumstances such as

when an officer’s official personnel record contains derogatory information, discharge an

officer involuntarily in accordance with section 632 of [title 10, United States Code].”).

The court acknowledges that, at the time of LCDR Santana’s discharge, SECNAVINST

1920.7B still called for the Secretary to notify the Secretary of Defense of the rationale

for not continuing officers who were within six years of retirement. DA at 46. But, as

the government correctly argues, where Department of Defense and Navy regulations

conflict, the court “gives precedence to the Department of Defense regulation.” Peoples

v. United States, 101 Fed. Cl. 245, 258, n.18 (2011); see also Casey v. United States, 8

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Cl. Ct. 234, 240 (1985) (“To the extent that Army regulations conflict with those of the

Department of Defense, the service regulations must give way.”).

Plaintiff next argues that LCDR Santana was not afforded adequate due process

rights prior to the non-continuation decision. Due process considerations are only

relevant “in cases where a ‘stigma’ would attach to the discharge,” which typically occurs

when an officer is dishonorably discharged. Flowers v. United States, 80 Fed. Cl. 201,

224 (2008) (internal citations and quotation marks omitted). It is undisputed that LCDR

Santana received an honorable discharge that did not contain derogatory information.

Moreover, “due process rights are typically fulfilled by notice of the government act and

an opportunity to respond before or after the act.” Id. at 224 (quoting Canonica v. United

States, 41 Fed. Cl. 516, 524 (1998)) (emphasis added). It is undisputed that plaintiff has

had the opportunity to challenge the non-continuation decision both before the Secretary

and before this court and has done so. Plaintiff has accordingly failed to demonstrate that

the Secretary ignored a “material error” in the continuation board’s decision on due

process grounds.

Finally, plaintiff argues that the Secretary erred by overlooking the Navy’s failure

to refer LCDR Santana’s non-continuation decision for “higher level review” in

accordance with Navy guidance applicable to sexual assault victims. See DA at 118-151

(OPNAVINST 1752.1B, Sexual Assault Victim Intervention (SAVI) Program (Dep’t of

Navy Dec. 29, 2006)). For the reasons set forth below, the court finds that this guidance

does not apply to decisions of continuation boards and therefore the continuation board’s

failure to refer the non-continuation decision for higher level review on the grounds that

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LCDR Santana was a sexual assault victim does not demonstrate that the Secretary

ignored a “material error” in the continuation board’s decision.

By its own terms, the notice requirements imposed by OPNAVINST 1752.1B ¶

8(b)(11) do not apply to the Secretary or continuation boards. Instead, OPNAVINST

1752.1B ¶ 8(b)(11) imposes obligations on Commanding Officers (COs) and Navy

Personnel Command. See DA at 123 (calling for COs to ensure that “[a]ll administrative

separation actions involving victims of sexual assault are reviewed by the Commander,

Navy Personnel Command”). COs and Navy Personnel Command are not responsible

for continuation decisions. See 10 U.S.C. § 611(b) (calling for the Secretary to convene

continuation boards); 10 U.S.C. § 1558 (calling for the Secretary to convene special

boards to review decisions made by continuation boards). Plaintiff’s argument that it

does not matter that OPNAVINST 1752.1B ¶ 8(b)(11) does not apply to continuation

decisions because plaintiff is asserting claims against the United States is without merit.

As stated above, the court is tasked with reviewing whether the Secretary erred in

concluding that the continuation board’s decision was not affected by a material error.

Because the continuation board was not bound by OPNAVINST 1752.1B ¶ 8(b)(11), the

Secretary did not err in upholding the continuation board’s decision without regard to

whether OPNAVINST 1752.1B ¶ 8(b)(11) was followed.

Plaintiff’s argument that another portion of the guidance, OPNAVINST 1752.1B ¶

7, applies the guidance “throughout the Navy to all levels of the Navy,” Pl.’s Resp. to

Def.’s Suppl. Br. at 5, ECF No. 75, and accordingly imposes obligations on continuation

boards, is similarly without merit. OPNAVINST 1752.1B ¶ 7 makes clear that the victim

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services outlined in the guidance are available to various members of the Navy, including

active-duty members, reserve members, and certain retired members. OPNAVINST

1752.1B ¶ 7(a)-(e). OPNAVINST 1752.1B ¶ 7 does not impose any obligation on

continuation boards to relay non-continuation decisions for higher level review, and does

not speak to whether or how OPNAVINST 1752.1B should apply when there are specific

processes and procedures for continuation of officers within the Navy, which are

governed by separate regulations.

Finally, OPNAVINST 1752.1B states that it does not impose any legally

enforceable obligations or create any rights that are enforceable by plaintiff (or any other

similarly situated officer). OPNAVINST 1752.1B ¶ 3 states:

This instruction establishes internal Navy policy only and is not intended

to, nor does it, create any rights, substantive or procedural, enforceable at

law or equity by any victim, witness, suspect, accused, or other person in

any matter, civil or criminal, and places no limits on the lawful prerogatives

of the Navy or its officials.

Based on this explicit limitation, any violation of OPNAVINST 1752.1B does not

provide a basis for finding a material error and overturning the Secretary’s decision or

LCDR Santana’s discharge.

Despite the limits on the application of OPNAVINST 1752.1B, the record reveals

that the issue of LCDR Santana’s alleged sexual assault was not ignored. Following the

court’s initial remand, plaintiff submitted additional materials to the Secretary for

consideration, which included arguments related to LCDR Santana’s alleged sexual

assault. See AR at 37-38, 48-49. On January 30, 2020, the government informed the

court that the Secretary had not considered plaintiff’s supplemental materials in rendering

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his revised decision. See ECF No. 46. Accordingly, on January 31, 2020, the court

ordered the Secretary to rescind the initial remand decision and issue a new decision that

did consider plaintiff’s supplemental materials. ECF No. 47. The revised decision,

issued on April 21, 2020, specifically acknowledged plaintiff’s supplemental materials,

including her sexual assault allegations and expressly noted the NCIS investigation

conducted in response to those allegations. AR at 4. After considering them, the

Secretary ultimately concluded that these allegations were “not germane” to her request

for a special board. Id. Accordingly, plaintiff has failed to show that the Secretary erred

in his conclusion.

The court accordingly finds that the Secretary’s decision not to convene a special

board on the ground that the continuation board did not commit a material error was not

arbitrary, capricious, unsupported by substantial evidence, or contrary to law.

Accordingly, the decision must be upheld. See 10 U.S.C. § 1558(f)(2)(A).

V. CONCLUSION

The court wishes to note that LCDR Santana served this nation for 17 years and

that she was honorably discharged. Clearly, LCDR Santana confronted some serious

issues near the end of her service. However, the court cannot ignore the record before it.

Having reviewed that record, and for the reasons stated above, the government’s motion

to dismiss plaintiff’s claim for relief associated with her alleged post-traumatic stress

disorder and disability, ECF No. 55, is GRANTED. The government’s cross-motion for

judgment on the administrative record as to the remaining claims, ECF No. 60, is

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GRANTED and plaintiff’s cross-motion for judgment on the administrative record, ECF

No. 59, is DENIED. The clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/Nancy B. Firestone

NANCY B. FIRESTONE

Senior Judge

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