Sloan v. United States

In the United States Court of Federal Claims

No. 21-1478

(Filed: 29 December 2021)

NOT FOR PUBLICATION

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PETER D. SLOAN, *

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Plaintiff, *

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v. *

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THE UNITED STATES, *

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Defendant. *

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ORDER

HOLTE, Judge.

While plaintiff Mr. Sloan was serving as an Aircraft Loadmaster on deployment to a

combat zone in Africa, he sustained severe injuries on two separate occasions. Compl. at 9–12,

ECF No. 1. The Air Force later medically retired Mr. Sloan, id. at 12, and he now seeks Combat

Related Special Compensation (“CRSC”) for these combat-related injuries, id. at 25. The Air

Force CRSC Board has twice denied Mr. Sloan’s claim, id. at 14–15, so Mr. Sloan applied to the

Air Force Board for Correction of Military Records (“AFBCMR”) which also denied his claim,

id. at 15–18. On 16 June 2021, Mr. Sloan filed a complaint in this court alleging the AFBCMR

denial of his application for CRSC was arbitrary and capricious, unsupported by substantial

evidence, and contrary to applicable law. See Compl. On 30 September 2021, the government

filed a motion to remand this case so the AFBCMR can reconsider Mr. Sloan’s claims under 28

U.S.C. § 1491(a)(2) (2018) and Rule 52.2 of the Rules of the Court of Federal Claims (“RCFC”).

See Def.’s Mot. for Voluntary Remand (“Def.’s Mot.”), ECF No. 7. Plaintiff opposes this

motion alleging the government’s proposed remand is not legally supported and would serve no

purpose other than delaying judicial review of his claim. See Pl.’s Resp. to Def.’s Mot. for

Voluntary Remand (“Pl.’s Resp.”), ECF No. 8. On 20 October 2021, the government filed a

reply in support of its motion to remand arguing a voluntary remand would address Mr. Sloan’s

three procedural concerns from his complaint. See Def.’s Reply in Supp. of its Mot. for

Voluntary Remand, ECF No. 10. For the following reasons, the Court grants-in-part and denies-

in-part the government’s motion to remand the case.

The government seeks a remand to address the three concerns raised in Mr. Sloan’s

complaint: “(1) the AFBCMR’s omission of an advisory opinion from the Director of

Compensation; (2) that the AFBCMR apparently did not receive a response that Mr. Sloan

attempted to send by e-mail on May 28, 2020; and (3) Mr. Sloan’s assertion that the AFBCMR

erroneously determined that his application was untimely.” Def.’s Mot. at 2–3. First, the

government admits “the AFBCMR did not obtain an advisory opinion from the Director of

Compensation,” and so the government “seek[s] a remand so the AFBCMR may obtain an

advisory opinion from the Director of Compensation[] and reconsider its decision in light of the

advisory opinion and any response from Mr. Sloan.” Id. at 3. Second, the government admits

“the AFBCMR did not consider the response that [Mr. Sloan] attempted to send by e-mail on

May 28, 2020.” Id. at 3 (citations omitted). Third, the government states the AFBCMR did not

adequately explain its untimeliness decision and so it “request[s] a remand for the board to

reconsider its determination that Mr. Sloan’s application was untimely (and that untimeliness

need not be excused in the interest of justice), and explain its decision more thoroughly in the

event that the decision remains unchanged.” Id. at 4 (citations omitted). The government further

notes, “a remand might satisfy Mr. Sloan’s claims and make further Court proceedings

unnecessary.” Id. at 6.

Mr. Sloan avers the government’s proposed remand “would serve no useful or just

purpose because i[t] can result only in further error.” Pl.’s Resp. at 4. Mr. Sloan also argues the

remand would be “unjust”, id., and states, “[t]he process to attain [CRSC for his combat-related

injuries] has been long, arduous, and frustrating.” Id. at 1. Mr. Sloan adds “[he] has experienced

nothing before the AFBCMR other than delay and error, and permitting the Government’s

proposed remand opens the door to potentially more of the same.” Id. at 9. Mr. Sloan further

states the remand would be “inefficient” and it lacks a “guarantee that remand would not result in

new errors for which Mr. Sloan also would have to seek relief from the Court.” Id. at 10.

The Tucker Act grants the court authority “to remand appropriate matters to any

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

28 U.S.C. § 1491(a)(2) (2018); see RCFC 52.2; accord Banks v. United States, No. 19-1888,

2021 WL 5331732 (Fed. Cl. Oct. 28, 2021); Holmes v. United States, 142 Fed. Cl. 791 (2019).

An agency may request remand for a variety of reasons, including to “reconsider its previous

position” without admitting error. SKF USA Inc. v. United States, 254 F.3d 1022, 1028–29 (Fed.

Cir. 2001). “Where the agency’s request is ‘substantial and legitimate,’ a court ordinarily should

grant the motion; alternatively, where the agency’s request is in bad faith or frivolous, a court

should deny the motion.” Keltner v. United States, 148 Fed. Cl. 552, 563 (2020) (citing SKF

USA Inc., 254 F.3d at 1028). “In between those relative extremes, . . . the trial court has

substantial discretion depending on the timing of the government's motion, its representations

regarding the reasons for a remand, the plaintiff’s factual allegations viewed through the prism of

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

administrative record available for the Court’s review.” Id. Additionally, the Court should

exercise its “ample discretion to deny the government’s motion,” id. at 557, to “proceed directly

to adjudication” when remand to the correction board would serve no just or useful purpose,

Martinez v. United States, 333 F.3d 1295, 1310 (Fed. Cir. 2003) (en banc). Lastly, “a court must

also ‘consider whether remand would unduly prejudice the non-moving party.’” Keltner, 148

Fed. Cl. at 562 (quoting Am. Waterways Operators v. Wheeler, 427 F. Supp. 3d 95, 99 (D.D.C.

2019), reconsideration denied, 507 F. Supp. 3d 47 (D.D.C. 2020)); see also Util. Solid Waste

Activities Grp. v. Env’t Prot. Agency, 901 F.3d 414, 436 (D.C. Cir. 2018) (citation omitted).

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Under RCFC 52.2, “[a]n order remanding a case must (A) include such direction as the

court deems proper and just; (B) establish the duration of the remand period, not to exceed 6

months; (C) specify the extent to which court proceedings will be stayed during the remand

period; and (D) designate a party to report to the court, every 90 days or less, on the status of the

remand proceedings.” RCFC 52.2(b)(1).

In this case, the government considers plaintiff’s three procedural concerns relevant as it

“request[s] a voluntary remand to allow the board to address these three concerns.” Def.’s Reply

at 1. Under the circumstances, the AFBCMR’s failure to obtain an advisory opinion from the

Director of Compensation and failure to consider the response Mr. Sloan attempted to submit by

e-mail on 28 May 2020 raise substantial and legitimate concerns about the correctness of the

AFBCMR decision. See Holmes, 142 Fed. Cl. at 793. Mr. Sloan complains the delay he has

suffered is “unjust” and a remand would be “inefficient”, however, plaintiff does not show he

would be unduly prejudiced by a remand. Pl.’s Resp. at 1, 4, 9; see Util. Solid Waste Activities

Grp., 901 F.3d at 436; Keltner, 148 Fed. Cl. at 562 (citation omitted). The government’s

voluntary remand request to “reconsider its previous position,” might afford Mr. Sloan the relief

he requests, and Mr. Sloan does not aver he will be unduly prejudiced by the remand; thus, the

Court finds that the voluntary remand sought by the government is warranted for the purposes

requested. See SKF USA Inc., 254 F.3d at 1028; Util. Solid Waste Activities Grp., 901 F.3d at

436.

The Court, however, cannot agree to the requested remand period of six months. Def.’s

Mot. at 7. Although the maximum duration of the remand period is six months, RCFC

52.2(b)(1)(B), this court frequently remands to military corrections or review boards for periods

ranging from 90 to 120 days. See e.g., Banks, 2021 WL 5331732 (120 days); Holmes, 142 Fed.

Cl. 791 (105 days); Wollman v. United States, 108 Fed. Cl. 656, 675 (2013) (90 days); Boyle v.

United States, 101 Fed. Cl. 592, 604 (2011) (90 days). As Judge Wolski aptly explained in

Holmes, the length of a remand period depends on the circumstances of each case, but several

factors may be considered by the Court, including: (1) any exigencies faced by the former

service member; (2) the extent of prior proceedings, and whether records had previously been

compiled; (3) the narrowness of the scope of the issues on remand; and (4) any special problems

faced by the corrections board. See Holmes, 142 Fed. Cl. at 794. Considering plaintiff’s

concerns regarding ongoing delays and the relatively small number of documents for the Board

to consider on remand, this Court determines 120 days should be an appropriate duration for the

remand in this case. See id.

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

government’s motion to remand, ECF No. 7, and REMANDS the case to the AFBCMR.

Pursuant to RCFC 52.2, the Court provides the following directions to the parties on

remand:

(1) The remand period shall terminate on 28 April 2022 and the Court STAYS all

proceedings in this case until that date. 1 See RCFC 52.2(b)(1)(C). If the AFBCMR has

1

On 15 October 2021, the government filed a motion for extension of time to respond to plaintiff’s complaint. See

Def.’s Mot. for an Extension of Time to Respond to the Compl., ECF No. 9. Plaintiff filed an opposition to this

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not responded on or before 28 April 2022, the parties shall follow the procedures

provided in RCFC 52.2(c).

(2) The AFBCMR shall obtain an advisory opinion from the Director of Compensation,

Office of the Deputy Assistant Secretary of Defense for Military Personnel Policy and

give Mr. Sloan an opportunity to respond to that opinion in accordance with the Board’s

usual procedures.

(3) The AFBCMR shall consider the response that Mr. Sloan attempted to submit by e-mail

on 28 May 2020, see Compl. at 16, 24–25; Compl. at Exs. K, L, M.

(4) The AFBCMR shall consider Mr. Sloan’s application, and any new arguments or

evidence he presents on his existing claims, in accordance with the Board’s otherwise

applicable procedures and powers, including but not limited to the Board’s power to seek

additional advisory opinions.

(5) The AFBCMR shall reconsider its determination that Mr. Sloan’s application was

untimely, and that the interests of justice do not warrant waiver of the three-year

deadline.

(6) If the AFBCMR determines Mr. Sloan’s application was untimely, and that the three-year

deadline should not be waived in the interests of justice, see 10 U.S.C. § 1552(b) (2018),

the Board shall explain fully:

i. when Mr. Sloan discovered the alleged “error or injustice,” see 10 U.S.C. §

1552(b), including an explanation of what Mr. Sloan discovered before

receiving a partial denial from the CRSC board; 2 and

ii. the basis for any finding that it would not be in the interests of justice to excuse

the untimeliness, see 10 U.S.C. § 1552(b). 3

motion for extension of time on 29 October 2021. See Pl’s Resp. to Def.’s Mot. for an Extension of Time to File a

Responsive Pleading to the Compl., ECF No. 11. On 1 November 2021, the government filed a reply in support of

its motion for an extension of time to respond to plaintiff’s complaint. See Def.’s Reply in Supp. of its Mot. for an

Extension of Time to Respond to the Compl., ECF No. 12. As the Court stays proceedings in this case until 28

April 2022, the Court accordingly DENIES as MOOT the government’s motion for extension of time to file a

response to plaintiff’s complaint, ECF No. 9.

2

Plaintiff argues, “[t]his instruction is . . . flawed . . . . [and i]f remand is granted, the second part of this

instruction—that the AFBCMR explain ‘why [Mr. Sloan] discovered [the error or injustice] before receiving a

partial denial from the CRSC board’—should be stricken.” Pl.’s Resp. at 7–8. Plaintiff argues, “‘[w]hy’ Mr. Sloan

discovered the error or injustice is irrelevant to what he discovered and when, which is the proper inquiry under 10

U.S.C. § 1552(b).” Pl.’s Resp. at 8. The government avers the Court should use its proposed instruction because

“[it] will make it more likely that the board addresses Mr. Sloan’s argument adequately, which might avoid the need

for a future remand.” Def.’s Reply at 8 (citation omitted). The Court understands the parties’ arguments and adopts

its own language to clarify what both parties seek regarding this instruction.

3

The government initially proposed ending this instruction with the following language: “including any discussion

of the merits that the board considers appropriate.” Plaintiff argues, the AFBCMR “is permitted only a cursory

review of the merits” and suggests “should the Court grant the Government’s motion, this instruction should be

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(7) The government SHALL FILE a joint status report every 60 days, with the first due on

28 February 2022, apprising the Court of the status of the remand proceedings.

(8) Within 30 days of the AFBCMR’s decision, the parties SHALL FILE a joint status

report advising the Court whether: (1) the remand affords a satisfactory basis for

disposition of the case; or (2) further proceedings are required and, if so, the nature of

such proceedings. See RCFC 52.2(e)(1).

The Court DIRECTS the Clerk to serve a certified copy of this order, the complaint with

all exhibits, along with a copy of the Court’s docket sheet in this case (No. 21-1478) to the

AFBCMR at:

Air Force Board for Correction of Military Records

Air Force Review Boards Agency

1500 West Perimeter Road

Joint Base Andrews, MD 20762

IT IS SO ORDERED.

s/ Ryan T. Holte

RYAN T. HOLTE

Judge

corrected to limit AFBCMR to the proper review.” Pl.’s Resp. at 7 (citation omitted). The government argues the

agency should have sufficient “latitude when considering an issue,” “banning the board from fully analyzing would

increase the risk of another insufficiently explained decision,” and “it cannot imagine how [a full review of the

merits would harm Mr. Sloan].” Def.’s Reply at 9–10. Nonetheless, the government states “[it is] not opposed to

removing the objectionable language—that the board’s explanation may ‘include[e] [sic] any discussion of the

merits that the board considers appropriate.’” Def.’s Reply at 10. As plaintiff requests the Court remove this

instruction, and the government is not opposed, the Court does not include this language in its instructions.

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