Petition for Writ of Certiorari — Eddy Jean Philippeaux, Petitioner v. United States

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Note: This disposition is nonprecedential.

®ntteb States Court of gfppeate

for tfje Jfeberal Ctrcutt

EDDY JEAN PHILIPPEAUX,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

2021-1466

Appeal from the United States Court of Federal Claims

in No. l:20-cv-00275-DAT, Judge David A. Tapp.

Decided: September 7, 2021

Eddy Jean Philippeaux, Miami, FL, pro se.

Liridona Sinani, Commercial Litigation Branch, Civil

Division, United States Department of Justice, Washing­

ton, DC, for defendant-appellee. Also represented by

Brian M. Boynton, Martin F. Hockey, Jr., Elizabeth

Marie Hosford.

Before Newman, O’Malley, and Taranto, Circuit Judges.

Cas©^i02^0C®^5-D©5cu»tSEilmait 6Pa$ei^ 0OT^lD^^8CEdsf 11

2

PHILIPPEAUX v. US

Per Curiam.

Eddy Jean Philippeaux appeals from a final judgment

entered for the United States in Philippeaux v. United

States, Case No. 20-275C (Fed. Cl. Dec. 1, 2020). Mr.

Philippeaux seeks to have his honorable discharge from the

United States Navy recast as a disability retirement. The

Board for Corrections of Naval Records (“Board”) deter­

mined that no change to his record was warranted. The

Court of Federal Claims (“Claims Court”) found that the

Board decision was not arbitrary, capricious, unsupported

by evidence, or contrary to law, and granted judgment on

the administrative record in favor of the United States. On

appeal, Mr. Philippeaux challenges the Claims Court’s re­

mand to the Board for reconsideration of an earlier decision

and the Claims Court’s subsequent decision granting the

United States judgment on the administrative record. Be­

cause the Claims Court’s remand decision was not an abuse

of discretion and because the Board’s decision is supported

by substantial evidence, we affirm.

I.

Background

In 1977, while on active duty aboard the U.S.S.

McCandless, Mr. Philippeaux struck his face against a

wall. He suffered a minor laceration near his eye. He re­

ceived two sutures and then returned to duty.

Three years later, in 1980, he was honorably dis­

charged from the Navy with an RE-1 reenlistment code,

designating that he was eligible for reenlistment. Before

his discharge, he underwent a medical examination which

noted no significant medical conditions. He reported that

he was healthy and had no history of head injury, head­

aches, dizziness, eye trouble, thyroid trouble, chest pain, or

memory loss, among other conditions. Performance evalu­

ations from before his discharge reported that he “met the

minimum requirements of his rate and job assignment” but

exhibited “marginal performance” attributable to

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PHILIPPEAUX V. US

3

“domestic problems” and his “preparations for his transi­

tion to the civilian community.” S. App. 1432.1

The day after his honorable discharge, he enlisted in

the United States Air Force Reserve. Three years later, in

1983, he enlisted in the Air National Guard. Mr.

Philippeaux underwent another medical examination for

his enlistment in the Air National Guard. He again re­

ported that he was in good health with no history of head

injuries, headaches, dizziness, eye trouble, thyroid trouble,

chest pain, or memory loss. In 1989, he was discharged

from the Air National Guard for unsatisfactory participa­

tion.

In 1996, sixteen years after his discharge from the

Navy, Mr. Philippeaux sought service-connected disability

benefits. The examining physician at a Department of Vet­

erans Affairs (‘VA”) Outpatient Clinic diagnosed Mr.

Philippeaux with dysthymic disorder.2 The VA awarded

Mr. Philippeaux a 70% disability rating due to a “Psychotic

Disorder,” effective February 27, 1995. The VA later rated

Mr. Philippeaux 100% disabled with service-connected

‘Tsychotic Disorder,” effective July 1, 2008.

In 2009, Mr. Philippeaux sought service-connected

benefits for an alleged traumatic brain injury and residual

conditions associated with that alleged injury. The VA de­

nied his claim. Mr. Philippeaux appealed that decision.

In 2018, while his traumatic brain injury disability

claim was pending before the United States Court of

1 All S. App. citations refer to the Corrected Supple­

mental Appendix filed by the United States in this appeal,

Dkt. No. 62.

2 Dysthymic disorder is a chronic depression. Dysthymia, Johns Hopkins Medicine, https://www.hopkinsmedicine.org/health/conditions-and-diseases/dysthymia

(last

visited Aug. 11, 2021).

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4

PHILIPPEAUX v. US

Appeals for Veterans Claims, Mr. Philippeaux applied for

correction of his military record to reflect disability retire­

ment pursuant to 10 U.S.C. § 1201. The Board denied Mr.

Philippeaux’s request, finding that “the preponderance of

the evidence did not support a finding that [Mr.

Philippeaux was] unfit for continued naval service for any

disability condition at the time of [his] discharge from the

Navy.” S. App. 86. The Board provided two reasons for its

determination. First, the Board “could not establish a

nexus between [Mr. Philippeaux’s] poor performance [lead­

ing up to his discharge from the Navy] and any medical

condition.” S. App. 86. “Second, and more importantly, the

Board concluded [that Mr. Philippeaux’s] subsequent en­

listment in the U.S. Air Force in April 1984 was strong ev­

idence of fitness for active duty at the time of [his]

discharge from the Navy in 1980.” S. App. 87.

After the Board denied his request, Mr. Philippeaux

filed a complaint in the Claims Court asserting, first, that

he has a right to disability retirement under 10 U.S.C.

§ 1201, and, second, that the government violated his con­

stitutional due process and equal protection rights. During

that proceeding, the government sought voluntary remand

to the Board because the Board had incorrectly stated that

Mr. Philippeaux was “fit to enlist in the Air Force approxi­

mately 3.5 years after” his 1980 discharge, when Mr.

Philippeaux in fact enlisted in the Air Force Reserve only

a day after being honorably discharged from the Navy and

then enlisted in the Air National Guard in 1983. The gov­

ernment also sought remand to allow the Board to consider

additional records submitted by Mr. Philippeaux. The

Claims Court granted the government’s unopposed motion.

On remand, the Board again denied Mr. Philippeaux’s

application, finding that the “evidence did not establish

probable material error or injustice.” S. App. 82. The

Board relied on the two physical examinations conducted

in 1980 and 1983 in which Mr. Philippeaux had attested to

his good health and denied experiencing a litany of

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PHILIPPEAUX v. US

enumerated medical complaints. The Board found that Mr.

Philippeaux’s post-discharge medical diagnoses and 1996

VA assigned disability ratings were not probative of

whether Mr. Philippeaux was fit for continued service as of

1980, particularly because contemporaneous medical rec­

ords from 1980 reported that he was in good health with no

issues. The Board again found that performance evalua­

tions from 1980 documenting Mr. Philippeaux’s marginal

military performance did not show lack of fitness for con­

tinued service, as the Navy also recommended Mr.

Philippeaux for reenlistment and he went on to serve in the

Air National Guard from 1983 to 1989.

Following the Board’s decision on remand, the United

States filed a motion for judgment on the administrative

record before the Claims Court. The United States also

sought dismissal of Mr. Philippeaux’s constitutional claims

for lack of jurisdiction. The Claims Court granted both.

Mr. Philippeaux appeals the Claims Court’s grant of

judgment on the administrative record in favor of the

United States. We have jurisdiction under 28 U.S.C.

§ 1295(a)(3).

II.

Discussion

Mr. Philippeaux appears to challenge two of the Claims

Court’s decisions on appeal. First, he challenges the

Claims Court’s remand to the Board for reconsideration.

Second, he challenges the Claims Court’s determination

that the Board’s decision is supported by substantial evi­

dence.

A. Remand for Reconsideration

Mr. Philippeaux argues that the remand decision was

incorrect for several reasons. He seems to argue that the

remand improperly gave the Board a second bite at the ap­

ple—an opportunity to correct its prior misstatement of his

military service history and develop a new rationale to

deny his claim. He asserts that the Board had no authority

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6

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PHILIPPEAUX v. US

to re-adjudicate his claim under 32 C.F.R. § 723.9, which

provides that “(ajfter final adjudication, further considera­

tion will be granted only upon presentation by the appli­

cant of new and material evidence or other matter not

previously considered by the Board.” He appears to argue

that the Board’s decision after remand was ultra vires and,

therefore, non-justiciable. He further argues that the re­

mand was an unconstitutional violation of his Fifth

Amendment due process rights.

We hold that the Claims Court’s remand to the Board

for reconsideration was not an abuse of discretion. The

Tucker Act, under which the Claims Court had jurisdiction

to hear this case, authorizes the Claims Court “to remand

appropriate matters to an administrative or executive body

or official with such directions as it may deem proper and

just.” See 28 U.S.C. § 1491(a)(2). And precedent from this

court and the Supreme Court shows that the Claims Court

did not abuse its discretion in remanding in this case.

We have previously identified several circumstances

where an agency may request a remand, including to re­

consider its previous position without confessing error.

SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed.

Cir. 2001). Where an agency requests a remand to recon­

sider its previous position, “the reviewing court has discre­

tion over whether to remand.” Id. “[I]f the agency’s

concern is substantial and legitimate, a remand is usually

appropriate.” Id.

The Supreme Court has held that where “the record be­

fore the agency does not support the agency action, if the

agency has not considered all relevant factors, or if the re­

viewing court simply cannot evaluate the challenged

agency action on the basis of the record before it, the proper

course, except in rare circumstances, is to remand to the

agency for additional investigation or explanation.” Fla.

Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see

also Walls v. United States, 582 F.3d 1358, 1367 (Fed. Cir.

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PHILIPPEAUX v. US

7

2009). The Supreme Court noted that “[t]he reviewing

court is not generally empowered to conduct a de novo in­

quiry into the matter being reviewed and to reach its own

conclusions based on such an inquiry.” Fla. Power, 470

U.S. at 744. “The focal point for judicial review should be

the administrative record already in existence, not some

new record made initially in the reviewing court.” Id. at

743. In a previous case in which a veteran presented new

evidence to the Claims Court rather than to the Board, we

required the Claims Court to remand to the Board for con­

sideration of that new evidence. Walls, 582 F.3d at 1368.

The Claims Court did not abuse its discretion when it

remanded to the Board for reconsideration. The Board’s

previous decision evinced a misunderstanding of Mr.

Philippeaux’s service history which the Board, rather than

the Claims Court, was in the best position to correct. Sim­

ilarly, the Board, rather than the Claims Court, was in the

best position to review new evidence Mr. Philippeaux pre­

sented to the Claims Court. Contrary to Mr. Philippeaux’s

arguments, the Claims Court did not give the Board an im­

proper second chance to come up with some new reason to

deny his claim. It properly permitted the Board to correct

the record and review new evidence.

Mr. Philippeaux’s arguments that the Board’s decision

on remand is non-justiciable, that the Board did not have

the power to reconsider on remand because he had not re­

quested reconsideration, and that the remand was a viola­

tion of his Fifth Amendment due process rights are

unavailing. First, at no point in these proceedings does it

appear that the government admitted that Mr. Philippeaux

was entitled to his requested relief. It merely requested

remand for the Board to reconsider its decision in light of

the factual inaccuracy in one of the Board’s reasons for

denying Mr. Philippeaux’s claim. Thus, there was always

a live controversy over Mr. Philippeaux’s right to his re­

quested relief and the case was justiciable throughout.

Second, 32 C.F.R. § 723.9 provides for Board

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PHILIPPEAUX v. US

reconsideration on an applicant’s request, but does not

limit a court’s ability to remand for reconsideration. The

Board was not acting outside of its mandate when it recon­

sidered the case on remand from the Claims Court. Third,

there is no evidence that Mr. Philippeaux was ever denied

the “essential requirements of due process”: “notice and an

opportunity to respond.” See Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 546 (1985). The record shows

that he was provided notice of the government’s remand

request, the Claims’ Courts remand order, and the Board’s

remand decision. He had the opportunity to participate

and respond throughout the proceedings. Indeed, the gov­

ernment called Mr. Philippeaux before they filed their mo­

tion for voluntary remand and he informed them that he

did not oppose the request.

B. Judgment on the Administrative Record

Mr. Philippeaux appears to challenge the Claims

Court’s finding that the Board’s decision is supported by

substantial evidence. He asserts that, contrary to the

Board’s decision, overwhelming evidence shows that he

was medically unfit for continued military service as of

1980. He argues that this evidence shows that his 1977

injury caused a traumatic brain injury, which went undi­

agnosed and untreated, and ultimately caused a myriad of

issues beginning two months after the initial injury and

continuing to appear over the next several years. These

various conditions, Mr. Philippeaux asserts, rendered him

unfit for continued service as of his 1980 discharge from

the Navy.

We review the Claims Court’s grant of a motion for

judgment on the administrative record de novo. Strand v.

United States, 951 F.3d 1347, 1351 (Fed. Cir. 2020), cert,

denied, 141 S. Ct. 894 (2020). “In reviewing an adverse de­

cision of a records correction board, we apply the same

standard of review that the Court of Federal Claims ap­

plied, without deference.” Id. This court, like the Claims

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PHILIPPEAUX v. US

9

Court, reviews records correction board decisions to deter­

mine if they are “arbitrary, capricious, contrary to law, or

unsupported by substantial evidence.” Prestonback v.

United States, 965 F.3d 1363, 1368 (Fed. Cir. 2020). Sub­

stantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”

Edison Co. v. Labor Board, 305 U.S. 197, 229 (1938). It “is

something less than the weight of the evidence, and the

possibility of drawing two inconsistent conclusions from

the evidence does not prevent an administrative agency’s

finding from being supported by substantial evidence.”

Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620

(1966).

Substantial evidence supports the Board’s determina­

tion made after remand. Although there is some evidence

that Mr. Philippeaux suffered various ailments in the

months before and the years after his 1980 discharge, sub­

stantial evidence from that period supports a finding that

he was in good health and was fit for reenlistment.

Mr. Philippeaux discounts the contemporaneous evi­

dence of his medical fitness for reenlistment by asserting

that brain hemorrhage is an “invisible injury” not readily

apparent through outside observation. But that assertion

does not counteract the ample affirmative evidence of Mr.

Philippeaux’s good health in 1980. Two weeks before his

discharge from the Navy, he attested to his good health and

stated that he was not currently suffering from, nor had

ever experienced, the myriad symptoms he now claims he

was suffering. The physician conducting his examination

noted no significant medical conditions. He was thus found

Three years later, Mr.

eligible for reenlistment.

Philippeaux underwent another medical examination for

his 1983 enlistment in the Air National Guard. He again

attested to his good health and denied experiencing (or ever

having experienced) many of the symptoms he now claims.

He was medically cleared for enlistment in the Air

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PHILIPPEAUX v. US

National Guard and went on to serve for six years, includ­

ing three years of active duty.

Other evidence further supports the Board’s determi­

nation. For example, in 1982, Mr. Philippeaux received a

computerized tomography scan which revealed that he had

a “normal brain” with a “prominent” pituitary gland that

“may be in the upper limits of normal.” S. App. 277. A

physician indicated that a follow-up scan may be needed

“to rule out the presence of an increasing pituitary lesion,”

but did not report concerns of traumatic brain injury. Id.

A medical record from 1979 indicates that Mr. Philippeaux

was referred to an endocrinologist with a provisional diag­

nosis of possible hyperthyroidism based on reported symp­

toms of weight loss, mood swings, and anxiety. But, after

further examination, Mr. Philippeaux was found to have

“no evidence of thyroid disease.” S. App. 899.

Mr. Philippeaux argues that negative performance

evaluations from 1979 and 1980 and evidence of later-aris­

ing medical concerns are evidence of his medical unfitness

to reenlist. But his performance evaluations merely report

poor performance.

They do not indicate that Mr.

Philippeaux’s marginal performance was due to medical

causes. Similarly unavailing is the evidence of later medi­

cal issues, such as Mr. Philippeaux’s 1982 hospitalization

due to chest pain and VA award of a 70% disability rating,

effective in 1995, and a 100% disability rating, effective in

2008, due to psychosis disorder and service-connected psy­

chotic disorder. This evidence of later-arising medical is­

sues does not indicate that Mr. Philippeaux was unfit for

reenlistment as of 1980. Even if Mr. Philippeaux’s mar­

ginal military performance in 1980 and later-arising med­

ical diagnoses were attributable to a medical condition

from 1980, they would only indicate “the possibility of

drawing two inconsistent conclusions from the evidence,”

which “does not prevent an administrative agency’s finding

from being supported by substantial evidence.” See Consolo, 383 U.S. at 620.

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PHILIPPEAUX V. US

III.

Conclusion

We have considered Mr. Philippeaux’s remaining argu­

ments and conclude that they are without merit. For the

reasons discussed above, we affirm the Claims Court.

AFFIRMED

Costs

No costs.

Case: 21-1466

Document: 83

Page: 1

Filed: 09/28/2021

NOTE: This order is nonprecedential.

GHntteb States Court of Appeals

for tfje Jfeberal Ctrcutt

EDDY JEAN PHILIPPEAUX,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

2021-1466

Appeals from the United States Court of Federal

Claims in No. l:20-cv-00275-DAT, Judge David A. Tapp.

ON PETITION FOR PANEL REHEARING

Before Newman, O’Malley, and Taranto, Circuit Judges.

Per Curiam.

ORDER

Eddy Jean Philippeaux filed a petition for panel re­

hearing. Mr. Philippeaux also filed two documents entitled

Notice of Filing of Additional Evidence in Support of Peti­

tion for Panel Rehearing [ECF No. 81] and Supplemental

Material Evidence in Further Support of Petition for a Re­

hearing by the Panel of this Court [ECF No. 82].

Case: 21-1466

Document: 83

Page: 2

Filed: 09/28/2021

PHILIPPEAUX v. US

2

Upon consideration thereof,

It Is Ordered That:

(1) The court accepts ECF Nos. 81 and 82, which were

considered alongside the petition for panel rehearing.

(2) The petition for panel rehearing is denied.

(3) No further filings related to the petition for panel

rehearing will be accepted.

For the Court

September 28. 2021

Date

Jsl Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

Case l:20-cv-00275-DAT Document 64 Filed 12/01/20 Page 1 of 12

In tfje Unttefc states! Court of Jfe&eral Claims

No. 20-275

Filed: December 1,2020

(**Not for Publication**)

EDDY JEAN PHILIPPEAUX,

Plaintiff\

v.

THE UNITED STATES,

Defendant.

MEMORANDUM OPINION AND ORDER

TAPP, Judge.

In this military pay suit, pro se Plaintiff, Eddy Jean Philippeaux, a former United States

Navy servicemember, Air Force Reservist, and Air National Guardsman, seeks alteration of his

military records and other, miscellaneous injunctive and compensatory relief. Mr. Philippeaux

suffered a minor head injury in 1977, to which he now attributes several current physical and

mental conditions, as welt as socioeconomic hardship. However, a military review board found

that Mr. Philippeaux did not establish that he was unfit for service at the time of his honorable

discharge from the Navy. This conclusion was bolstered by Mr. Philippeaux’s subsequent

service in the Air Force Reserves, and later, the Air National Guard, which required a physical

examination prior to enlistment. Mr. Philippeaux moves for judgment on the administrative

record seeking entry of an order that sets aside that decision. The United States maintains that the

decision of the military review board was correct.

For the reasons explained below, the United States’ Cross-Motion for Judgment on the

Administrative Record (ECF No. 61) is GRANTED, and Mr. Philippeaux’s Motion for

Judgment on the Administrative Record (ECF No. 52) is DENTED. Because the Court finds the

United States is entitled to judgment on the administrative record, it need not address Mr.

Philippeaux’s Motion for Declaratory Judgment (ECF No. 11), Motion for Permanent Injunction

(ECF No. 23), and Motion to Strike (ECF No. 25). Therefore, those motions are DENIED AS

MOOT.

Case l:20-cv-Q0275-DAT Document 64 Filed 12/01/20 Page 2 of 12

I.

Background

A. Mr. Philippeaux's Military Service

Mr. Philippeaux enlisted in the United States Navy in 1972. (AR1, 965).1 He served as a

Storekeeper and Procurement Clerk. On October 12,1977, while onboard a frigate, the U.S.S.

McCandless, Mr. Philippeaux sought medical attention for a minor laceration to his face

sustained from “hitting a wall.” (AR268). He was treated with two sutures and returned to full

duty. (Id.). The Navy honorably discharged Mr. Philippeaux on October 1,1980, and assigned

him a RE-1 reenlistment code indicating his fitness for reenlistment and retention in the Naval

Reserves. (AR1,3, 725, 1352). As part of his discharge, the Navy performed a physical

examination of Mr. Philippeaux on September 16, 1980. (AR1, 13 .11-12, 1314). Mr. Philippeaux

self-reported that he was “healthy” and “not [taking] any medication[.]” (AR1311). On this same

form, Mr. Philippeaux indicated that he was not currently suffering, nor had he ever suffered,

from a litany of medical conditions including head injury, unconsciousness, depression,

dizziness, eye trouble, or amnesia. (Id.). The examining physician did not list any medical

abnormalities. (AR1312-13).

On October 2,1980, the day following his discharge from the Navy, Mr. Philippeaux

enlisted in the United States Air Force Reserves as a Staff Sergeant. (AR974-77). Just over three

years later, in 1983, Mr. Philippeaux enlisted in the Air National Guard. (AR1). On November

19,1983, Mr. Philippeaux presented for an enlistment physical examination. (AR1300). Again,

he reported that he was not currently suffering, nor had he ever suffered, from a myriad of

medical conditions including head injury, unconsciousness, depression, dizziness, eye trouble, or

amnesia. (Id.). Mr. Philippeaux, again, self-reported that he was “presently in very good health”

and “under no medications.” (Id.). After being medically cleared for enlistment, Mr. Philippeaux

joined the Air National Guard for the District of Columbia. (AR978—80). The Air National

Guard discharge Mr. Philippeaux for “unsatisfactory participation” on October 27,1989. (AR2,

970, 978, 972).

B. Records from the Department of Veterans Affairs, the Boardfor Veterans Appeals,

and the United States Court ofAppeals for Veterans Claims

Seven years following his discharge from the Air National Guard, and nineteen years

following his injury while onboard the U.S.S. McCandless, on July 12,1996, Mr. Philippeaux

presented to a Department of Veterans Affairs (“VA”) Outpatient Clinic where he was evaluated

for mental disorders. (AR173-77). The examining physician recorded extensive notes about Mr.

Philippeaux’s service, and evaluated his mental fitness, but made no mention of Mr.

Philippeaux’s 1977 injury or a possible connection to his observed mental state. (Id.). The VA

diagnosed Mr. Philippeaux with dysthymic depression and assessed his psychiatric incapacity as

“moderate to severe.” (AR176). Much later, in 2017, the VA retroactively determined that Mr.

Philippeaux was 70 percent disabled and unemployable effective February 27,1995. (AR204).

1 The Court cites to the Administrative Record, (ECF No. 41), and the Supplement to the

Administrative Record, (ECF No. 51), as “(AR_).”

2

Case l:20-cv-0G275-DAT Document 64 Filed 12/01/20 Page 3 of 12

On May 9,2011, the VA upgraded that disability assessment to 100 percent, effective July 1,

2008. (AR2,256).

In December of 2009, Mr. Philippeaux filed an informal claim with the VA asserting

entitlement to service connection for a traumatic brain injury (“TBI”). (AR12). The VA denied

that claim in May of 2010. (Id.). Mr. Philippeaux appealed his claim to the Board for Veterans’

Appeals (“the Board”), which also denied his claim, finding that “the competent evidence of

record, including 2010 neurological testing and a February 2015 VA examination report, did not

establish a diagnosis of a TBI or residuals thereof.” (AR13). Mr. Philippeaux appealed this

denial to the United States Court of Appeals for Veterans Claims. (Id.). The Veterans Claims

Court set aside that denial and remanded Mr. Philippeaux’s case to the Board, finding “the Board

did not address favorable material evidence^]” (AR15); see also Philippeaux v. Wilkie, 814 F.

App’x 603 (Fed. Cir. 2020).

C. Military Corrections Boards Proceedings

On March 26,2018, Mr. Philippeaux applied for correction of his military records to

reflect a disability discharge under 10 U.S.C. § 1201. (AR168). The Board for the Correction of

Naval Records (“BCNR”) evaluated his application and ultimately denied the request, finding

that “the evidence submitted was insufficient to establish the existence of probable material error

or injustice.” (AR165). The BCNR explained that “[t]here was no medical evidence that [Mr.

Philippeaux] [was] diagnosed with a mental health condition or a Traumatic Brain Injury after

[the] 1977 injury to [his] face[.]” (AR165-66). Notably, the BCNR also found that because Mr.

Philippeaux received both a discharge physical examination from the Navy and an enlistment

physical from the Air National Guard, there was “strong objective evidence” that Mr,

Philippeaux was fit for active duty when he was discharged from the Navy, and thus, not entitled

to a change in his records to reflect a qualifying disability discharge. (AR166). However, the

BCNR failed to consider Mr. Philippeaux’s Air Force service records from October 2,1980,

until his enlistment in the Air National Guard in 1983, and incorrectly found that period to be a

break in service. (See AR164).

On October 29,2019, Mr. Philippeaux petitioned the BCNR for reconsideration of its

decision. (AR5,35). However, on reconsideration, the BCNR found that Mr. Philippeaux had

failed to submit “new and material evidence” necessary to overturn the decision of die BCNR.

(AR6).

D. Court ofFederal Claims Proceedings

On March 6,2020, Mr. Philippeaux filed a Complaint in this Court alleging he suffered a

TBI connected to the injuries he sustained in 1977. (Compl., ECF No. 1). Mr. Philippeaux

alleges that this injury occurred during his naval service and resulted in numerous medical

complications and other harms. (See generally, Compl.). Notably, Mr. Philippeaux contends he

“did not receive the standard, proper and appropriate care” following his head injury, that the

Navy improperly discharged him from service without a permanent disability designation, and

that the BCNR’s denial of his application to change the character of his discharge was arbitrary,

capricious, and contrary to taw. (Compl. at 2-3, 16). Mr. Philippeaux’s Complaint contains an

3

Case l:20-cv-00275-DAT Document 64 Filed 12/01/20 Page 4 of 12

extended discussion of his alleged medical conditions, all of which, he alleges, are connected to

his service in one way or another.

Helpfully, Mr. Philippeaux distills his grievances into two counts. Count I alleges that the

Navy “provided Mr. Philippeaux an erroneous character of discharge which has left him with the

inability to earn a living while he is not receiving disability payments” and the United States “has

failed to pay [him] the pay and allowances that he is entitled to receive” under 10 U.S.C. § .1201.

(Compl. at 27). Count II alleges that the United States’ actions “resulted in [Mr. Philippeaux]

being deprived of property interests, pain and suffering, homelessness, loss of his mother,

poverty to his children, aggravation of health, deprivation of social standing and [the] wrongful

death of his mother due to homelessness[.]” (Compl. at 28). Mr. Philippeaux brings Count II

under the Due Process and Equal Protection clauses of the Fifth Amendment to the United States

Constitution. {Id.).

On June 10,2020, in light of the BCNR’s factually incorrect findings regarding Mr.

Philippeaux’s service history, the Court remanded Mr. Philippeaux’s claims to the BCNR.

(Remand Order, ECF No. 28). On remand, the Court directed the BCNR “to (!) reconsider

whether [Mr.] Philippeaux is entitled to correction of his military records denied by the BCNR in

its original decision dated October 1,2018, taking into account the correct chronology of Mr.

Philippeaux’s service history; and (2) consider any additional records submitted by Mr.

Philippeaux.” {Id.).

On June 29, 2020, the BCNR issued a second decision denying Mr. Philippeaux relief.

(AR1-4). The BCNR determined that “no change to [Mr. Philippeaux’s] record was warranted”

and he was “being appropriately compensated for [his] service connected disability conditions

based on [his] 100% VA rating that entitles [him] to a significant tax-free monthly payment, free

VA medical treatment, and other related disability benefits[.]” (AR4). In support of its decision,

the BCNR cited Mr. Philippeaux’s discharge examination, his RE-1 discharge code specifying he

was fit for reenlistment, his reenlistment in the Air Force Reserves, and his enlistment in the Air

National Guard, which included a physical examination that determined Mr. Philippeaux was fit

for service. (AR3-4). The BCNR concluded that Mr. Philippeaux’s post-discharge medical

diagnoses and disability ratings were too far removed from his discharge to be probative of

whether he was symptomatic or unfit for naval service at the time of his discharge on October 1,

1980. (AR3). The BCNR ultimately opined that “any changes in [Mr. Philippeaux’s] military

record should be from [his] time after [his] Navy service since [he] allegefs] [his] disability

symptoms later resulted in [his] ‘demotion’ and ‘involuntary discharge’ from the Air National

Guard.” (AR4).

On July 23,2020, the United States filed notice of this BCNR decision. (ECF No. 35).

Prior to setting a schedule for the parties to move for judgment on the administrative record, the

Court requested Mr. Philippeaux’s consent to appoint pro bono counsel. (ECF No. 37). Mr.

Philippeaux declined the Court’s invitation and elected to proceedpro se. (ECF No. 39).

Thereafter, the parties filed cross-motions for judgment on the administrative record. (ECF Nos.

52, 61). Briefing is now complete and this matter stands submitted for decision.

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II.

Discussion

A. Legal Standards

i. Military Discharge

Military retirement for disability is governed by 10 U.S.C. § 1201, a money-mandating

statute. Chambers v. United States, 417 F.3d 1218,1223 (Fed. Cir. 2005). Congress amended §

1201 after Mr. Philippeaux’s separation from the Navy. At the time of his discharge, § 1201

provided:

Upon a determination by the Secretary concerned that a member of a regular

component of the armed forces entitled to basic pay, or any other member of

the armed forces ... is unfit to perform the duties of his office, grade, rank,

or rating because of physical disability incurred while entitled to basic pay,

the Secretary may retire the member [for disability.]

10 U.S.C. § 1201 (1976).

SECNAV Instruction 1850.4 spells out the personnel involved in the Secretary’s making

of this determination of unfitness and disability:

The Secretary of the Navy performs his statutory responsibility by means of

the Department of the Navy Physical Disability Evaluation System. His

principal agent in this regard is the Director, Naval Council of Personnel

Boards. The Central Physical Evaluation Board, regional physical evaluation

boards, Physical Review Council and Disability Evaluation System

Counselors, together with other Navy and Marine commands and activities,

comprise the Department of the Navy Disability Evaluation System.

(DAI, ECF No. 61-1 ).2 Thus, the Disability Evaluation System was “designated and directed to

act on behalf of the Secretary of the Navy in making determinations as to fitness for active duty,.

.. entitlement to disability benefits, and disposition of members properly referred for physical

disability evaluation[.]” (DA2). Servicemembers were not referred for a disability evaluation

unless their “fitness for continued active service [was] in question.” (DA7, 8). But not all

physical defects “justify referring a case for disability evaluation.” (DAS). Referral was deemed

appropriate “only when in the opinion of the medical board the defect materially interferes with

the member’s ability to reasonably fulfill the purpose of [the member’s] employment on active

duty.” (DAS).

2 Defendant’s Appendix is attached to the United States’ Cross-Motion for Judgment on the

Administrative Record, (ECF No. 61). Helpfully, Defendant’s Appendix contains several former

military regulations pertinent to Mr. Philippeaux at the time of his discharge from the Navy. For

simplicity, rattier than cite to each of these historical regulations, the Court cites to this appendix

as “(DA_).”

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Under SECNAVINST 1850.4, the Disability Evaluation System might deem a

servicemember “unfit” if he was “unable 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.” (DA5).

The mere presence of a disability did not mean a servicemember must have been found “unfit,”

but rather the “nature and degree of the functional impairment produced by the disability” was

compared with ‘‘the requirements of the duties to which the member may reasonably expect to be

assigned!.]” (DA5).

Congress has created several administrative boards to adjudicate claims brought by

current and former military servicemembers. Under 10 U.S.C. § 1552, Congress created

administrative boards for the correction of military records. Congress created administrative

boards “to review the discharge or dismissal” of a servicemember under 10 U.S.C. § 1553.

In 2014, then-Secretary of Defense Charles Hagel issued a memo (the “Hagel Memo”)

providing supplemental guidance to the § 1552 corrections boards. (DA29-32). The Hagel

Memo recognized that numerous Vietnam veterans had sought upgrade of their discharge

characterizations3 for Post-Traumatic Stress Disorder, which was not recognized at the time of

service “and in many cases, diagnoses were not made until decades after service was complete.”

(DA29). The result was that servicemembers’ records often “did not contain substantive

information concerning medical condition in either Service treatment records or personnel

records” and “[i]t has therefore been extremely difficult to document conditions that form a basis

for mitigation in punitive, administrative, or other legal actions or to establish a nexus between

PTSD and the misconduct underlying” other than honorable discharge conditions. (DA29). The

memo attached medical guidance “intended to ease the application process for veterans who are

seeking redress[.]” (DA29). The attached medical guidance advocated for “[ljiberal

consideration [of] petitions for changes in characterization of service to Service treatment record

entries which document one or more symptoms which meet the diagnostic criteria of [PTSD] or

related conditions.” (DA31). In other words, where a servicemember’s discharge was

characterized as “Other Than Honorable,” the military corrections boards were to give special

consideration to symptoms that indicated PTSD and were to consider whether PTSD may have

caused the misconduct related to that servicemember’s discharge.

In 2017, then-Under Secretary of Defense Anthony Kurta issued a memo (the “Kurta

Memo”) clarifying the Hagel Memo and expanding its scope to encompass § 1553 discharge and

dismissal administrative boards. (See Mot. for Judicial Notice at 3,6, EOF No. 42).4 The Kurta

3 A servicemember’s discharge “characterization” relates to whether the servicemember was

discharged for misconduct A Navy servicemember’s discharge may be characterized as

“Honorable,” “General,” or “Other Than Honorable.” Wisotsky v. United States, 69 Fed. Cl. 299,

310 (2006). “When the [servicemember’s] separation is solely for reasons constituting

substandard performance of duty... the characterization must be Honorable.” Id. (citing

SECNAVINST 1920.6A, end. 5,11a, Guidelines on Characterization of Service (Nov. 21,

1983)).

4 On Motion from Mr. Philippeaux, the Court took judicial notice of the Kurta Memo. (ECF No.

51).

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Memo specified that the guidance from the Hagel Memo was not limited to “Other Than

Honorable” discharge characterizations, “but rather apply to any petition seeking discharge relief

including requests to change the narrative reason, re-enlistment codes, and upgrades from

General to Honorable characterizations.” {Id. at 6). Importantly, by their own terms, neither the

Hagel Memo nor the Kurta Memo applied to the fitness for duty or disability determinations.

ii. Judgment on the Administrative Record

Where, as here, the parties have filed cross-motions for judgment on the administrative

record, RCFC 52.1 provides a procedure for parties to seek the equivalent of an expedited trial

on a “paper record, allowing fact-finding by the trial court.” Bannum, Inc. v. United States, 404

F,3d 1346, 1356 (Fed. Cir. 2005). Unlike summary judgment standards, genuine issues of

material fact do not preclude a judgment on the administrative record. See id. at 1355-56.

Questions of fact are resolved by reference to the administrative record. Id. at 1356.

In challenging determinations of a military corrections board, a plaintiff must

demonstrate “by cogent and clearly convincing evidence,” Wronke v. Marsh, 787 F.2d 1569,

1576 (Fed. Cir. 1986), that the military board’s decision was “arbitrary, capricious, unsupported

by substantial evidence, or contrary to law.” Metz v. United States, 466 F.3d 991, 998 (Fed. Cir.

2006). It is well settled that “responsibility for determining who is fit or unfit to serve in the

armed services is not a judicial province; and that courts cannot substitute their judgment for that

of the military departments when reasonable minds could reach differing conclusions on the

same evidence.” Heisig v. United States, 119 F.2d 1153, 1156 (Fed. Cir. 1983) (citations

omitted). Moreover, “military administrators are presumed to act lawfully and in good faith like

other public officers, and the military is entitled to substantial deference in the governance of its

affairs.” Dodson v. United States, 988 F.2d 1199,1204 (Fed. Cir. 1993). Even if a plaintiff

identifies error in the administrative proceedings, the plaintiff still must “establish that the error

was prejudicial, i.e., that it affected the Board’s ultimate conclusion[.]” Fisher v. United States,

81 Fed. Cl. 155, 159 (2008), aff'd, No. 2008-5094,2010 WL 4009437 (Fed. Cir. Oct. 14, 2010);

see also Wagner v. United States, 365 F.3d 1358, 1365 (Fed. Cir. 2004) (recognizing that

although harmless error review is not appropriate in all cases, “[wjhere reviewable standards or

factors constrain the exercise of discretion, harmless error continues to be the appropriate test.”).

A court may set aside an agency’s decision if the agency “entirely failed to consider an

important aspect of the problem, offered an explanation for its decision that runs counter to the

evidence before the agency, or the decision is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise.” Ala. Aircraft Indus., Inc. v. United States,

586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mjrs. Ass’n v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29,43 (1983)). However, “[wjhen substantial evidence supports the

board’s action, and when that action is reasonable in light of all the evidence presented, the court

will not disturb the result.” Pope v. United States, 16 Cl. Ct. 637, 641 (1989). The court’s review

“does not require a reweighing of the evidence, but a determination whether the conclusion being

reviewed is supported by substantial evidence.” Heisig, 719F.2dat 1157.

iii. Motion to Dismiss

The Court recognizes that pro se plaintiffs’ pleadings are generally held to “less stringent

standards” than those of a professional lawyer. Haines v. Kemer, 404 U.S. 519, 520-21 (1972).

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However, the Court cannot extend this leniency to relieve Mr. Philippeaux of his jurisdictional

burden. Kelley v. Sec’y, U.S. Dep'i ofLabor, 812F.2d 1378,1380 (Fed. Cir. 1987). Whether a

court has jurisdiction is a threshold matter in every case. See Steel Co. v. Citizens for a Better

Env % 523 U.S. 83, 94-95 (1998). “If the Court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.” RCFC 12(h)(3).

“The Court of Federal Claims is a court of limited jurisdiction.” Marcum LLP v. United

States, 753 F.3d 1380,1382 (Fed. Cir. 2014). This Court resolves disputes over access to the

federal government’s wallet. The Tucker Act is the primary statute conferring jurisdiction on this

Court. The Tucker Act waives sovereign immunity for claims (1) founded on an express or

implied contract with the United States; (2) seeking a refund for a payment made to the

government; or (3) arising from federal constitutional, statutory, or regulatory law mandating

payment of money damages by the United States government. Ontario Power Generation, Inc. v.

United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see also United States v. Navajo Nation,

556 U.S. 287 (2009); United States v. Mitchell, 463 U.S. 206 (1983). Standing alone, however,

the Tucker Act does not itself create a substantive right enforceable against the United States.

Ferreiro v. United States, 501 F.3d 1349,1351 (Fed. Cir. 2007). To come within jurisdictional

reach, “a plaintiff must identify a separate source of substantive law that creates the right to

money damages.” Fisher v. United States, 402 F.3d 1167,1172 (Fed. Cir. 2005).

B. The United States is Entitled to Judgment on the Administrative Record with Respect

to Count I

In Count I of his Complaint, Mr. Philippeaux raises allegations related to his discharge

condition. (Compl. at 27). In his Motion for Judgment on the Administrative Record, Mr.

Philippeaux seeks an order from this Court setting aside the second BCNR decision finding him

not disabled while on active duty. (Pl.’s MJAR, ECF No. 52). Mr. Philippeaux supports his

request by raising numerous allegations which he scatters throughout his Motion; the Court

construes these allegations liberally. See Kemer, 404 U.S. 519. First, he contends that the BCNR

“failed to comply with the criteria set by DODI 1332.18 in determining whether or not [Mr.

Philippeaux] was fit to reenlist.” (Id. at 20). Second, he alleges that he was “permanently

disabled on active duty ... because of his demonstrated endocrine and mental disorders[.]” (Id.

at 2). Third, he highlights that the VA awarded him a 100 percent disability rating and declared

him permanently disabled unemployable. (Id.). Fourth, Mr. Philippeaux asserts that his medical

examination on discharge indicated he had cognitive and memory defects stemming from his

1977 head injury which should have entitled him to a disability discharge. (Id. at 18). Fifth, he

argues that the Navy erred by failing to refer him for a Disability Evaluation System Board based

on the Kurta Memo and his 1980 medical evaluation. (Id. at 2-3,20). Sixth, Mr. Philippeaux

summarily asserts that he met the criteria for disability retirement based on the Kurta Memo, but

the BCNR nevertheless failed to heed that guidance. (Id. at 3,19).

In its Response, the United States contends that the first four arguments “attempt[] to

have the Court impermissibly reweigh the evidence and substitute its judgment for that of the

BCNR.” (Def.’s Mot. at 20, ECF No. 61). As to the fifth, the United States argues that “Mr.

Philippeaux has not demonstrated that the Navy improperly failed to refer him to the [Disability

Evaluation System], but in any event, the error was not prejudicial.” (Id. at 21). As to Mr.

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Philippeaux’s sixth substantive argument, the United States responds that the Kurta Memo does

not apply to Mr. Philippeaux’s case, but even if it did, the BCNR complied with it. (Id.).

For the reasons that follow, the Court agrees with the United States and finds that the

United States is entitled to judgment on the administrative record with respect to Count I.

i. The BCNR Applied the Correct Standard to Determine Fitness for Service and

the Court Cannot Reweigh the Evidence Presented to the BCNR

As to the first of Mr. Philippeaux’s allegations the Court was able to identify—that the

BCNR failed to comply with Department of Defense Directive (“DODI”) 1332.18 in reaching its

decision on Mr. Philippeaux’s fitness to reenlist —Mr. Philippeaux is incorrect. DODI 1332.18

states that:

The primary requisite for eligibility for retirement or separation under

reference (a) is that the member must be unfit, because of physical disability,

to perform the duties of his office, grade, rank or rating.

(DA10). The BCNR relied on SECNAVINST 1850.4 (1977) in determining that “a

service member is unfit due to a disability when the member is unable, because of the disease or

injury, to perform the duties of their office, grade, rank or rating.” (AR2; DA5). The Secretary of

the Navy issued SECNAVINST 1850.4 “[t]o define a system for the evaluation of physical

disability and the directives and policies pertaining to it[.]” (DAI). “Physical evaluation

determinations are made independently and are ... controlled by regulations contained in the

Disability Evaluation Manual (SECNAVINST 1850.4.).” Chayra v. United States, 23 Cl. Ct.

172,181 (1991) (quoting JAG Manual 0801d); see also McCray v. United States, 3 Cl. Ct. 253,

256 (1983) (clarifying that “10 U.S.C. § 1216 (1976) directed the Secretary of the Navy to

prescribe regulations relative to disability retirement determinations. Such regulations were

issued by the Secretary of the Navy under the heading Disability Evaluation Manual,

SECNAVINST 1850.4”). It is clear that the BCNR did not err in applying SECNAVINST

1850.4 to review Mr. Philippeaux’s fitness determination. But in any event, the standards are

nearly identical. Thus, even if SECNAVINST 1850.4 were not the correct standard for making a

disability determination, the error would be harmless because Mr. Philippeaux would not have

been prejudiced by the mistake. See Sargisson v. United States, 913 F.2d 918,922-23 (Fed. Cir.

1990) (finding harmless error where there was no risk of prejudice to the serviceman due to the

violation).

The second, third, and fourth grounds for Mr. Philippeaux’s challenge to the BCNR

decision would all require the Court to reweigh the evidence before the BCNR. In its decision

dated June 29,2020, the BCNR stated that it considered all the record evidence and determined

that Mr. Philippeaux was fit for duty at the time of his discharge. (AR1-4). The BCNR

considered the report of medical treatment following Mr. Philippeaux’s October 12, 1977 injury,

his medical examination upon his discharge from the Navy, his discharge with a determination

that he was fit for reenlistment, his enlistments with the Air Force Reserves and Air National

Guard, his Air National Guard enlistment physical examination, his nine years of service in those

branches after his discharge from the Navy, his VA records establishing and adjusting his

disability ratings, and other evidence. (AR1-4).

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In considering Mr. Philippeaux’s post-discharge diagnoses, the BCNR determined those

diagnoses “were not probative on die issue of whether [Mr. Philippeaux] was symptomatic on 1

October 1980[,]” the date of his discharge from the Navy. (AR3). The BCNR concluded that the

VA’s medical evaluation “was too distant in time from [Mr. Philippeaux’s] discharge date” and

determined that “the results of the medical examination conducted contemporaneously with [his]

discharge from the Navy was better evidence in determining [his] fitness for continued naval

service at the time.” (AR3). The BCNR evaluated the form completed during that medical

examination and noted that Mr. Philippeaux self-reported that he was “healthy” and “not [taking]

any medication[.]” (AR1311). Furthermore, the BCNR noted that on that same form, Mr.

Philippeaux indicated that he was not currently suffering, nor had he ever suffered, from a

catalog of medical conditions including head injury, unconsciousness, depression, dizziness, eye

trouble, or amnesia. {Id.). The examining physician did not list any medical abnormalities,

contrary to Mr. Philippeaux’s assertions in his Complaint. {Compare AR1312-13 with Compl.

(alleging a plethora of mental and physical disorders and conditions throughout)).

Substantial evidence supports the BCNR’s conclusion and the Court declines Mr.

Philippeaux’s invitation to supplant the BCNR’s judgment with its own. Mr. Philippeaux has

offered nothing to rebut the presumption that military administrators act in good faith and are

entitled to deference in determining who is fit or unfit to serve in the armed services. The BCNR

determined that at the time of his discharge, Mr. Philippeaux’s records showed he was “not

symptomatic for any disability conditions at the time of his discharge and that [his] performance

issues were not disability related,” thus he was “more likely than not, fit for continued active

duty on 1 October 1980 and, therefore, not eligible for assignment of physical disability as [his]

narrative reason for separation from the Navy.” (AR4).

In summary, the BCNR applied the correct standard to assess Mr. Philippeaux’s fitness at

the time of his discharge, and reasonably concluded he was fit for service and therefore not

entitled to a modification to his naval records. Mr. Philippeaux has not otherwise met his burden

to demonstrate “by cogent and clearly convincing evidence that the [BCNR’s] decision was

arbitrary, capricious or unlawful.” Dorl v. United States, 200 Ct. Cl. 626, 633 (1973). Because

“substantial evidence supports the [BCNR’s] action, and... that action is reasonable in light of

all the evidence presented, the court will not disturb the result.” Pope v. United States, 16 Cl. Ct.

637,641 (1989).

ii. The Naw Did Not Err in Failing to Refer Mr. Philippeaux to the Disability

Evaluation System

To the extent Mr. Philippeaux asserts the Navy erred by failing to refer him for a

Disability Evaluation System Board, he is again incorrect. As the BCNR made clear, “[t]he

purpose of the separation physical was to determine whether [Mr. Philippeaux] [was] physically

qualified for discharge from active duty and whether any physical conditions existed that

required a referral for treatment” or whether Mr. Philippeaux was “unable to perform [his] duties

due to a disability condition” such that referral to the Disability Evaluation System was

appropriate. (AR3). Referral to the Disability Evaluation System is only required if the

servicemember is found to be unfit for service by a medical board. (DA7,8). As discussed in

detail above, there was no indication that Mr. Philippeaux was unfit for service at the time at the

time of his separation physical conducted immediately prior to his discharge on October 1, 1980.

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Therefore, the Navy did not err when it did not refer Mr. Philippeaux to the Disability Evaluation

System.

iii. The Kurta Memo is Not Applicable to Mr. Philippeaux’s Claims

Mr. Philippeaux summarily asserts that he met the criteria for disability retirement based

on the Kurta Memo, but the BCNR erroneously failed to heed that guidance in considering

modification to his characterization of discharge. (Pl.’s MJAR at 3,19). As explained above, the

Kurta Memo was an expansion and clarification of the Hagel Memo. The purpose of the Hagel

Memo was to give more weight to mitigating factors in evaluating a servicemember’s

misconduct leading to an “Other than Honorable” or “General” discharge characterization.

(DA29-32). Petitions for modification were to be construed liberally to take into account the

effects of previously undiagnosed Post Traumatic Stress Disorders on servicemembers, Mid

review boards were directed to acutely consider whether a servicemember’s PTSD motivated

conduct that led to an other than honorable discharge. (DA31). Significantly, neither the Hagel

Memo nor the Kurta Memo mention disability determinations.

Mr. Philippeaux received an honorable discharge from the Navy. (AR725). Thus, there is

no misconduct to mitigate and no service characterization to change. By its own terms, the Kurta

Memo applies to petitions for changes in discharge characterizations, not to BCNR

determinations with respect to disability benefits. (See Mot. for Judicial Notice at 3, 6).

Therefore, the Kurta Memo has no application to the relief Mr. Philippeaux seeks and provides

no legal basis to disturb the determinations and conclusions of the BCNR.

C. Count II of Mr. Philippeaux's Complaint Must Be Dismissed Under RCFC 12(b)(1)

The United States moves for dismissal of Count II under RCFC 12(b)(1). (Def.’s Mot. at

15-18). Because Mr. Philippeaux’s Due Process and Equal Protection Clause claims are not

money mandating, the Court lacks subject matter jurisdiction and the United States’ motion must

be granted.

A constitutional provision or statute is money mandating if it “can fairly be interpreted as

mandating compensation by the Federal Government.” United States v. Navajo Nation, 556 U.S.

at 290 (quoting United States v. Testan, 424 U.S. 392,400 (1976)). Mr. Philippeaux alleges

violations of his constitutional rights to Due Process and Equal Protection under the Fifth

Amendment to the United States Constitution. However, these constitutional provisions are not

money-mandating. Leblanc v. United States, 50 F.3d 1025,1028 (Fed. Cir. 1995); Carruth v.

United States, 627F.2d 1068,1081 (Ct. Cl. 1980) (holding that the Court “has no jurisdiction

over claims based upon the Due Process and Equal Protection guarantees of the Fifth

Amendment, because these constitutional provisions do not obligate the Federal Government to

pay money damages.”).

Put simply, Count II does not present a dispute over monies owed by the United States

Government. Where, as here, the Constitutional and statutory provisions relied upon by a

plaintiff are not money-mandating, the Court of Federal Claims lacks jurisdiction and those

claims must be dismissed for lack of subject matter jurisdiction. Jan's Helicopter Serv., Inc. v.

11

Case l:20-cv-00275-DAT Document 64 Filed 12/01/20 Page 12 of 12

Fed. Aviation Admin,, 525 F.3d 1299,1308 (Fed. Cir. 2008) (citing Greenlee Cnty., Ariz. v.

United States, 487 F.3d 871, 876 (Fed. Cir. 2007)).

III.

Conclusion

The BCNR’s decision that Mr. Philippeaux is not entitled to a modification of his naval

records is not arbitrary, capricious, unsupported by evidence, or contrary to law. The BCNR

considered all important aspects of Mr. Philippeaux’s claims, and its decision was both

reasonable and supported by substantial evidence. Therefore, the United States is entitled to

judgment on the administrative record with respect to Count I. The Court lacks subject matter

jurisdiction to adjudicate the Fifth Amendment Due Process and Equal Protection claims Mr.

Philippeaux brings under Count II, so those claims must be dismissed.

In summary, the Court ORDERS the following:

1. The United States’ Cross-Motion for Judgment on the Administrative Record with

respect to Count I, (ECF No. 61) is GRANTED.

2. The United States’ Motion to Dismiss Count H, (ECF No. 61), is GRANTED.

3. Mr. Philippeaux’s Motion for Judgment on the Administrative Record, (ECF No.

52) is DENIED.

4. Mr. Philippeaux’s Motion for Declaratory Judgment (ECF No. 11), Motion for

Permanent Injunction (ECF No. 23), and Motion to Strike (ECF No. 25) are

DENIED AS MOOT.

5. No costs or fees awarded.

The Clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

,

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ji DAVID A. TAPP, Judge