Petition for Writ of Certiorari — Malcolm Wade Pipes, Petitioner v. United States
Supreme Court briefJul 18, 2025
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No. 25In THE
Supreme Cuurt of the Mniteh States
MALCOLM WADE PIPES,
Petitioner,
V.
UNITED STATES OE AMERICA,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Federal Circuit
PETITION FOR A WRIT OF CERTIORARI
Mathew B. Tully
Counsel of Record
Allen A. Shoikhetbrod
Tully Rinckey PLLC
2001 L Street, NW, Suite 902
Washington, DC 20036
(202) 787-1900
mtully@tullylegal.com
Counsel for Petitioner
381394
$
COUNSEL PRESS
(800)274-3321 • (800)359-6859
i
QUESTION PRESENTED
Whether a military reservist, who was lawfully
ordered to engage in remedial fitness training without
pay and points, and suffered injury, was on inactive¬
duty training status while performing ordered military
training within the meaning of 10 U.S.C. § 101(d)(7)(B)
and, therefore, entitled to disability retirement.
ii
PARTIES TO THE PROCEEDING
The petitioner is Malcolm Wade Pipes.
The respondent is the United States.
Hi
RELATED PROCEEDINGS
The following proceedings are directly related to this
case within the meaning of Rule 14.1(b)(iii):
Pipes V. United States, No. 15-1163, U.S. Court of
Federal Claims. Order filed October 13, 2017.
Pipes V. United States, No. 15-1163, U.S. Court of
Federal Claims. Judgment entered September 11, 2018.
Pipes V. United States, No. 2019-1189, U.S. Court
of Appeals for the Federal Circuit. Judgment entered
November 15, 2019.
Pipes V. United States, No. 15-1163C, U.S. Court of
Federal Claims. Order filed September 11, 2020.
Pipes V. United States, No. 15-1163C, U.S. Court of
Federal Claims. Judgment entered January 10, 2022.
Pipes V. United States, No. 2022-1509, U.S. Court
of Appeals for the Federal Circuit. Judgment entered
December 16, 2024.
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED .
i
PARTIES TO THE PROCEEDING .
ii
RELATED PROCEEDINGS .
iii
TABLE OF CONTENTS.
iv
TABLE OF APPENDICES .
vi
TABLE OF CITED AUTHORITIES .
vii
OPINIONS BELOW .
1
JURISDICTION .
1
STATUTORY PROVISIONS INVOLVED .
1
STATEMENT .
1
A.
Legal Background.
3
B.
Factual and procedural background.
5
1.
Summary of United States Courts of
Federal Claims and Federal Circuit
Holdings .
11
V
Table of Contents
Page
REASONS FOR GRANTING THE PETITION .
I.
THE QUESTION PRESENTED
WARRANTS THIS COURT’S
REVIEW .
CONCLUSION .
14
15
24
vi
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT, DECIDED
DECEMBER 16, 2024 .
la
APPENDIX B — OPINION OF THE UNITED
STATES COURT OF FEDERAL CLAIMS,
FILED JANUARY 7, 2022 .
19a
APPENDIX C — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT, DECIDED
NOVEMBER 15, 2019 .
48a
APPENDIX D — OPINION OF THE UNITED
STATES COURT OF FEDERAL CLAIMS,
FILED SEPTEMBER 11, 2018 .
61a
APPENDIX E — ORDER OF THE UNITED
STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT, FILED
MARCH 5, 2025 .
78a
APPENDIX F — STATUTORY PROVISIONS
INVOLVED .
80a
vii
TABLE OF CITED AUTHORITIES
Page
CASES:
Avon Nursing and Rehab, v. Becerra,
119 F.4th 286 (2d Cir. 2024) .
23
Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc.,
467 U.S. 837 (1984) .
22
Finnv. United States,
548 F.2d 340, 342, 212 Ct. Cl. 353 (Ct. Cl. 1977) ...18
Gilbreth v. United States,
95 Fed. Cl. 88(2010) .
18, 19
Gray TV, Inc. v. Fed. Commun. Comm’n,
130 F.4th 1201 (11th Cir. 2025) .
23
KMart Corp. v. Cartier, Inc.,
486 U.S. 281 (1988) .
19
Lindemann Maschinenfabrik v.
American Hoist and Derrick Co.,
730 F.2d 1452 (Fed. Cir. 1984) .
19
Loper Bright Enterprises v. Raimondo,
603 U.S. 369 (2024) . 3, 22, 23
Marbury v. Madison,
5 U.S. 137 (1803) .
3
via
Cited Authorities
Page
Service v. Dulles,
354 U.S. 363 (1957) .
21, 22
Sullivan v. Stroop,
496 U.S. 478 (1990) .
19
Union P. R.R. Co. v. Surface Transportation Bd.,
113 F.4th 823 (8th Cir. 2024) . 22, 23
United States v. Lester,
92 F.4th 740 (8th Cir. 2024) .
23
Vogev. U.S.,
844 F.2d 776 (Fed. Cir. 1988) .
22
Wake V. United States,
89 F.3d 53 (2d Cir. 1996) .
17, 18
STATUTES:
5U.S.C. §706 .
3
10 U.S.C. § 101(d) .
2
10 U.S.C. § 101(d)(7) .
3, 15, 16
10 U.S.C. § 101(d)(7)(A) .
4, 16, 20, 21
10 U.S.C. § 101(d)(7)(B) .
2, 4, 13, 14, 16, 18, 19, 20
ix
Cited Authorities
Page
10 U.S.C. § 1204 .
2,3, 11, 15
10 U.S.C. § 1204(l)-(2)(A)(i) .
3
10 U.S.C. § 1204(2)(B) .
18
37 U.S.C. § 206 .
37 U.S.C. § 206(a)(3)(A)(ii) .
3, 4, 15, 16, 20, 21
16
OTHER AUTHORITIES:
Air Force Instruction 10-248 .
6, 16, 17, 23
Air Force Instruction 36-2910 .
4, 13, 19, 21, 22, 23
Air Force Manual 36-8001 .
13, 14, 20, 21
1
Malcolm Wade Pipes petitions for a writ of certiorari
to review the judgment of the Court of Appeals for the
Federal Circuit.
OPINIONS BELOW
The opinion of the court of appeals, App.la-18a, is
reported at 123 F.4th 1324. The claims court opinion,
App.l9a-47a, is reported at 157 Fed.Cl. 483. The opinion
of the court of appeals, App.48a-60a, is reported at 791
F. App’x 910. The claims court opinion, App.61a-77a, is
reported at 139 Fed.Cl. 538.
JURISDICTION
The judgment of the court of appeals was entered on
December 16, 2024. The court of appeals denied a timely
combined petition for rehearing and rehearing en banc on
March 5, 2025. App.78a. This Court extended the deadline
to file this petition until July 18, 2025. The Court has
jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
Relevant provisions of the U.S. Code are produced in
the Appendix. See App.80a-105a.
STATEMENT
This case raises an important question for all members
of the military who are injured while performing ordered
military training, without pay or points, and the relief
they may be entitled to receive. This case concerns the
definition and application of inactive-duty training (“IDT”)
2
and how it applies to Petitioner Malcolm Wade Pipes, an
Air Force Reservist who was injured after being lawfully
ordered to engage in remedial fitness training called the
Self-Paced Fitness Improvement Program (“SFIP”).
Petitioner suffered a stroke from a Cerebrovascular
Accident (“CVA”) while exercising under a mandated
SFIP, which he was instructed to participate in since
November 2004 and August 2005 by lawful and valid
military orders. Petitioner sought disability retirement
under 10 U.S.C. § 1204, which provides the conditions for
entitlement to such retirement for service members who
were on active duty or IDT for thirty (30) days or less.
10 U.S.C. § 101(d) defines duty status. Section 101(d)
(7)(B) identifies IDT without compensation, which is
relevant to Petitioner, such that the IDT he was ordered to
engage in, the SFIP, was not for pay or points. This is the
pertinent provision at issue, and applicable to Petitioner,
because Petitioner suffered a stroke while on IDT, but
did not receive pay or points. The lower court ultimately
found that, notwithstanding the Petitioner was ordered
to engage in the SFIP and suffered injury. Petitioner was
not authorized for IDT status while performing the SFIP
and, therefore, he was not entitled to relief.
As a result. Petitioner, and other Air Force Reservists
and Air National Guard members who are injured because
they were ordered to engage in training, thus performing
IDT without pay or points, are being denied the right
to obtain disability retirement under 10 U.S.C. § 1204.
Petitioner seeks certiorari for compelling reasons based
on an issue of critical importance to all military service
members and veterans.
3
A. Legal Background
The Administrative Procedure Act (“APA”) prescribes
procedures for agency action and outlines the basic
parameters of judicial review or such action. This notion
is rooted in Marbury v. Madison, 5 U.S. 137 (1803), and
reaffirmed by Loper Bright Enterprises v. Raimondo,
603 U.S. 369 (2024). The APA instructs courts, not
agencies, to “decide all relevant questions of law, interpret
constitutional and statutory provisions, and determine
the meaning or applicability of the terms of an agency
action.” 5 U.S.C. § 706. Relevant to Petitioner’s case, the
court of appeals had the authority to exercise independent
judgment from the Air Force Board for Corrections of
Military Records (“AFBCMR”) to interpret whether
Petitioner was in a “duty” status when he suffered from
a stroke while participating in a mandatory Self-Paced
Fitness Improvement Program (“SFIP”) to determine
his eligibility for military disability retirement.
Pursuant to 10 U.S.C. § 1204, members of the Armed
Forces who are unfit to perform the duties of their office,
grade, rank, or rating, because of physical disability,
like Petitioner, may be retired with retirement pay. This
statute also provides that “the disability is of a permanent
nature and stable” and was “the proximate result of
performing active duty or inactive-duty training.” 10
U.S.C. § 1204(l)-(2)(A)(i).
10 U.S.C. § 101(d)(7) defines inactive-duty training
(“IDT”) as follows: “(A) Duty prescribed for Reserves
by the Secretary concerned under Section 206 of Title 37
or any other provisions of law; and (B) special additional
duties authorized for Reserves by an authority designated
4
by the Secretary concerned and performed by them on a
voluntary basis in connection with the prescribed training
or maintenance activities of the units to which they are
assigned.”
Section 101(d)(7)(A) refers to 37 U.S.C. § 206, which,
in relevant part, compensates those engaging in IDT with
pay and points. Section 101(d)(7)(B) provides IDT without
pay or points. There is also no requirement of compensation
under 10 U.S.C. § 101(d)(7)(B). The controlling instruction
in this matter at the relevant time. Air Force Instruction
(“AFI”) 36-2910, provides as follows:
Inactive Duty Training (IDT)—Authorized
training performed by a member of a Reserve
Component not on active duty or active duty for
training and consisting of regularly scheduled
unit training assemblies, additional training
assemblies, periods of appropriate duty or
equivalent training, and any special additional
duties authorized for Reserve Component
personnel by the Secretary concerned, and
performed by them in connection with the
prescribed activities of the organization in
which they are assigned with or without pay.
Does not include work or study associated with
correspondence course. Also called IDT.
AppxlSO (emphasis added).'
1. “Appx” refers to the record below, specifically the NonConfidential Joint Appendix filed with the court of appeals on
May 18, 2023.
5
B. Factual and procedural background
Petitioner enlisted into the military in 1983 where he
honorably served sixteen (16) years with the Air Force,
consisting of seven (7) years on active duty and nine (9)
years in the Reserve. App.21a, App.49a.
In 2003, the Air Force began phasing in more rigorous
physical fitness standards. These increased standards
included, inter alia, a one and one-half (1.5) mile run.
Appxl42. Where this run accounted for fifty percent
(50%) of annual test scoring, the abdominal circumference
accounted for thirty percent (30%), and the push-up and
abdominal crunch components accounted for ten percent
(10%) respectively. Appx277.
In 2004, the Air Force Reserve began phasing in
the aforementioned fitness program. App.49a. Petitioner
began participating in the new fitness program and he
was exercising approximately two (2) to four (4) times per
week. During this same timeframe, the annual medical
physical evaluation requirements were changed for
Airmen, which eliminated blood and urine tests, as well as
Electrocardiography and heavily relied on a questionnaire
completed by the military service member and civilian
physician. Appxl39, Appxl42. If a service member
experienced or had a history of certain medical conditions,
a medical clearance examination was required to clear the
member to participate in the exercise program. Appxl39.
In October 2004, Petitioner and his unit were notified
by their Commander of the new standards and the
expectations. App.49a. According to medical records
at that time. Petitioner had erratic blood pressure
6
measurements and an increasing tendency to feel bad
after multiple daily exercises. App.SOa. In November
2004, Petitioner failed the new test, and his fitness was
rated as poor. App.49a. Petitioner was verbally counseled,
presented with a letter amounting to an order enrolling
him in the SFIP, which was a mandatory program under
AFI 10-248, and Petitioner was ordered to exercise
according to the program requirements. App.21a,
App.29a. In August 2005, Petitioner failed a second fitness
test. App.SOa. Petitioner was ordered to exercise five (5)
days per week to address the repeat failure to pass the
fitness test. App.21a, App.SOa.
In October 2004, prior to mandatory enrollment in
the SFIP by the Reserves, Petitioner’s blood pressure
was recorded as 160/100. Appx455. In November 2005,
Petitioner’s blood pressure was recorded as 165/105.
Appx455. A few days later. Petitioner’s blood pressure
dropped to 124/90. Appx455. Petitioner reported the high
blood pressure as a concern prior to the upcoming annual
fitness testing on his annual Air Force physical screening
for fitness testing on January 6, 2006. App.50a. Petitioner’s
physician was concerned and opined that Petitioner be
excused from running given the blood pressure issues,
which was presented to the Medical Unit. App.50a.
On February 5, 2006, Petitioner was evaluated by
Colonel Granger, a medical doctor of the Air Force.
App.50a. Dr. Granger’s evaluation demonstrated that
Petitioner had extremely elevated blood pressure, which
ranged between 151/94 when sitting to 146/99 when
standing. App.50a. Dr. Granger rendered a diagnosis of
hypertension and obesity. App.50a. Dr. Granger did not
relay this critical health information to Petitioner or refer
7
him to his personal physician. App.50a-51a. Dr. Granger
cleared Petitioner for full participation in the SFIP in
which he had been mandatorily enrolled, and Petitioner
took a fitness test on the same day. App.Sla.
Petitioner became ill during the run portion of the
aforementioned fitness test. App.Sla. This was Petitioner’s
third fitness test failure and his second failure since being
placed in the SFIP. App.Sla. Petitioner participated in
additional fitness tests on May 7 and July 10, 2006, which
he also failed. App.Sla.
After the July 2006 test. Petitioner reported to the
unit fitness advisor that he was running in accordance
with the SFIP, but he was not seeing any improvement
and that he often felt ill after running. App.Sla. Despite
medical notice of hypertension, and the continued failures
of the fitness tests and demonstrated failure to improve.
Petitioner was not referred by medical personnel for
further evaluation. App.Sla.
Petitioner continued to experience discomfort after
exercising for a period of nearly two (2) years without
any related improvement. Petitioner’s medical providers
noted an elevated high blood pressure. Petitioner reported
his high blood pressure to the Air Force. Petitioner was
later examined by the Air Force, through Dr. Granger,
who cleared Petitioner to participate in the fitness testing
program, despite the recorded high blood pressure and a
diagnosis by Dr. Granger of hypertension. After vomiting
and not being able to complete the run portion of the
fitness test on the same day as his medical examination,
there was no follow-up with Dr. Granger or referral to
other medical personnel.
8
On September 3, 2006, Petitioner became ill while
exercising under the mandated SFIP. App.51a-52a.
Petitioner experienced a headache, difficulty breathing,
dizziness, an impression of being overheated, and a
general feeling of malaise. App.51a-52a. Petitioner’s right
hand later became slightly clumsy, and he developed a
slight limp. Appx456. Petitioner went to the hospital at
approximately 2:00 am on September 4, 2006. App.52a.
Petitioner was diagnosed with having suffered a
Cerebrovascular Accident (“CVA”), commonly referred to
as a stroke. App.52a. The CVA occurred while Petitioner
was running in a mandated program, the SFIP, and with
military physician approval and under command of the
Air Force.
On September 6, 2006, Petitioner contacted his unit
concerning the stroke. App.52a. The Air Force was then
obligated to report the stroke to Headquarters at the Air
Force Reserve Command (“AFRC”), but no such reporting
was ever made and the medical documentation that should
have been prepared has disappeared. App.52a. Petitioner’s
unit should have initiated an investigation to determine
if the injuries occurred during the line of duty (“LOD”).
Petitioner’s unit failed to perform an LOD investigation
into the stroke. Instead, the unit determined, without
any investigation, that Petitioner was “off duty” when the
stroke occurred. App.52a.
On February 4, 2007, Petitioner was evaluated
by Colonel (Dr.) Robert Savory to determine whether
Petitioner was fit for duty or whether he should be referred
for medical discharge. Appx88. Dr. Savory concluded that
Petitioner did not meet medical retention standards due
to the persistent numbness of important muscle groups
9
and lack of coordination of his right extremities. Appx88.
Petitioner was notified he was not eligible for retirement
benefits until the age of sixty (60). App.52a. Since no LOD
investigation was ever conducted, Petitioner was ineligible
for consideration by a Medical Evaluation Board. App.52a.
Also on February 4, 2007, Petitioner was declined
for a fitness for duty board or the Informal Physical
Evaluation Board (“IPEB”). Appx63. The IPEB could not
determine eligibility for retirement benefits. Appx73-74.
On November 4, 2007, the Commander of the 917th Wing
Group made a recommendation to AFRC on the status
of Petitioner. Appx457. The Commander indicated that
Petitioner was “unable to function or even get to his office.”
Appxll2-113. The Commander opined that Petitioner
should be medically retired. Appxll3. The Commander
indicated, without any substantiating documentation,
that Petitioner was not in a military status at the time
the condition was first diagnosed, despite the lack of any
required LOD determination to that effect. Appxll2.
The Commander also noted that Petitioner was in the
SFIP and that he was unable to pass his fitness tests.
Appxll3. On December 20, 2007, Petitioner was notified
that separation was initiated to discharge him for physical
disqualification. Appx458.
In October 2008, Petitioner was informed that his
regular retirement was approved. App.52a. To receive
regular retirement benefits, however. Petitioner must be
sixty (60) years old. Petitioner was forty-seven (47) years
old at the time. App.52a.
On September 23, 2009, Petitioner filed an application
for benefits with the Department of Veterans Affairs
10
(“VA”). Appx458. The VA denied service-connection for
both hypertension and stroke. Petitioner appealed the
VA’s decision, but he was again denied. The VA refused to
consider Petitioner’s CVA as a potentially reimbursable
injury, solely because the unit arbitrarily assumed,
without an LOD, that the CVA was not duty-related
or compensable. As a result. Petitioner was denied VA
benefits and disability retirement.^
In August 2011, Petitioner appealed to the AFBCMR.
App.53a. On June 4, 2012, the Air Force Office of the
Assistant Secretary for Military and Reserve Affairs
(“SAF/MRB”) issued a memorandum for the AFBCMR
recommending denial of the change in records to reflect
Petitioner was permanently medically retired. App.53a.
On February 28, 2013, the AFBCMR denied
Petitioner’s application for correction of military records,
finding that he was not entitled to disability retirement
based on a determination that he did not demonstrate the
existence of a material error or injustice. App.53a.
On April 30, 2013, and July 3, 2013, Petitioner sought
reconsideration by the AFBCMR in denying Petitioner
the ability to be permanently and medically retired as of
2007. App.53a. On August 11, 2014, the Air Force Office of
2. Petitioner was subsequently given a one hundred percent
(100%) service-connection disability rating. On May 18, 2018, the
Board of Veterans’ Appeals found that Petitioner was entitled to
service-connection for residuals of a CVA (i.e., stroke). The Board
of Veterans’ Appeals held that the residuals of the CVA incurred in
2006 were related to Petitioner’s active-duty military service. See
No. 13-31 133A, BVA 18-102810 (BVA May 16, 2018) (unpublished).
His Reserve service was of no consequence in the decision.
11
the Assistant Secretary, SAF/MRB, through its Executive
Director, affirmed the denial of Petitioner’s request for
reconsideration. App.53a.
1.
Summary of United States Courts of Federal
Claims and Federal Circuit Holdings
On October 9, 2015, Petitioner timely filed a complaint
in the Court of Federal Claims claiming that he was denied
disability retirement pay and benefits under 10 U.S.C.
§ 1204. App.53a. On October 13, 2017, the claims court
vacated the AFBCMR’s February 28, 2013, decision that
denied Petitioner’s application for a correction of military
records and remanded to the AFBCMR to reconsider
Petitioner’s application. App.54a.
On February 1, 2018, the AFRC/Judge Advocate
(“AFRC/JA”) issued an advisory opinion to the AFBCMR
recommending that the AFBCMR deny Petitioner’s
application. App.54a-55a. On May 3, 2018, the AFBCMR
issued its reconsideration decision holding that Petitioner
did not demonstrate the existence of material error or
injustice and, therefore. Petitioner’s application was
denied. App.55a. The matter returned to the claims court
for further adjudication.
On September 11, 2018, the claims court denied relief.
App.55a. The claims court considered newly provided
evidence on remand, including a report where “the Medical
Advisor found it plausible that [Petitioner’s] participation
in vigorous training for his fitness assessment may have
contributed to the occurrence of his stroked” App.67a,
Appx.Tla. Meanwhile, the claims court held that Petitioner
was not in military status or on IDT while performing the
12
SKIP. App.76a. The court held that a service member is
not on an IDT status while performing in a SFIP, because
a SFIP is a recommended remedial intervention program
for traditional Reservists, conducted on a voluntary
basis, not mandated, and performed in a non-duty status.
App.76a. Pipes timely appealed to the court of appeals.
On November 15, 2019, the court of appeals reversed
and remanded. App.OOa. The court held “both the
AFBCMR and Claims Court erred in concluding that Pipes
was not lawfully ordered to perform the SFIP designed
for him.” App.59a The court held that “the argument that
Pipes was in a non-duty status when ordered to perform
his SFIP is no longer a valid rationale.” App.GOa. The court
noted that “[a]t the time of Pipes’ stroke, the AFI made
clear that Reservists could participate in SFIP ‘on or off
duty status.’ But, in this case, for reasons not explained by
the Air Force, the apparently sui generis SFIP designed
for Pipes to perform when in civilian status went beyond
recommendation and encouragement, being mandated
by lawful orders issued during time when Pipes was in
inactive duty status.” Appx59a (internal citation omitted).
In light of the court of appeals’ opinion, the claims court
remanded to the AFBCMR. App.2a, App.7a. On May 14,
2020, AFBCMR determined that Petitioner was in a nonduty status when he suffered his stroke. Appx25.
On September 11, 2020, the claims court vacated the
May 11, 2020 AFBCMR decision. Appx20. The matter was
remanded to AFBCMR to consider whether Petitioner
was required to satisfy the administrative requirement of
the Air Force Manual (“AFMAN”) in effect at that time.
Appx33-34.
13
On December 22, 2020, the AFBCMR concluded that
the administrative requirements of AFMAN 36-8001
applied to IDT pursuant 10 U.S.C. § 101(d)(7)(B) and
Petitioner could not have been in a duty status when he
was exercising in compliance with a lawful military order
and suffered a stroke because a ministerial form was not
completed by Petitioner’s unit commander. Appx337-347.
The AFBCMR ignored AFI 36-2910; the controlling
instruction for determining IDT status. Appxl51-202.
Petitioner then timely filed with the claims court. The
JA then issued an Advisory Opinion, which found that
Petitioner was not entitled to relief because the SFIP was
not an order placing him in IDT. App.27a. The Reserve
Surgeon General’s Office also issued an advisory opinion,
which concluded that the squadron medical personnel
were not negligent in failing to alert command that
Petitioner had untreated hypertension and should have
been barred from SFIP. App.43a-44a. On August 10, 2021,
the AFBCMR adopted both advisories and determined
that the SFIP order did not place Petitioner in IDT and
recommended against correcting Petitioner’s records.
Appx419-440.
On January 7, 2022, the claims court denied relief
and held that “the relevant provisions of the AFMAN
apply to all IDT and require advance authorization for a
service member to be in IDT status” and “the SFIP order
did not automatically place Pipes in IDT status while
participating in the SFIP.” App.46a-47a.
Petitioner timely filed with the court of appeals. On
December 16, 2024, the court of appeals affirmed and
held that, at the time of his injury. Petitioner was not in
14
IDT status. App.la-18a. The court of appeals rejected
Petitioner’s following arguments: (1) the claims court erred
in upholding the AFBCMR’s conclusion that the AFMAN
36-8001 applies to all IDT under 10 U.S.C. § 101(d)(7)(B);
and (2) the claims court erred in agreeing with the
AFBCMR that Petitioner failed to prove he received the
advance authorization required by the AFMAN. The court
denied the first argument on the basis that “Mr. Pipes
points to no provision of the AFMAN contemplating that
IDT may be performed without receipt of pay or points or
that the AFMAN applies to only a subset of IDT.” App.lla.
The court denied the second argument on the basis that
Petitioner did not point to “any source of law establishing
an IDT status implicitly authorized” by way of lawful
order. App.39a-40a. Petitioner subsequently timely filed
a combined petition for rehearing and rehearing en banc,
which was denied on March 5, 2025. App.79a.
REASONS FOR GRANTING THE PETITION
This Court should grant certiorari for compelling
reasons as the question presented is of critical importance
to all military service members and veterans. The decision
below is not only wrong, but it is important because it
impacts thousands of service members.
Military service members and veterans, like
Petitioner, who were lawfully ordered to engage in
training that causes injury, are being denied relief based
on, at best, a technicality. Thousands of service members
and veterans are being denied LOD investigations
and determinations. They are being denied certain VA
benefits. They are being denied a disability retirement.
Meanwhile, there is no dispute that Petitioner was ordered
15
to engage in the SKIP. There is no dispute that Petitioner
had several underlying medical conditions that should
have disqualified him from the SFIP. There is no dispute
that Petitioner suffered from a stroke. The only dispute
is whether Petitioner was authorized, or pre-authorized,
to be in a duty status when he was engaging in the SFIP
at the time of injury. Because Petitioner was ordered to
engage in the SFIP, and he did so engage at the time of
injury, he was authorized to be in a duty status. As a result.
Petitioner’s military records should have been corrected,
and he should have been granted disability retirement.
No future case is likely to offer a better opportunity to
address the question presented as the decision below.
1.
THE QUESTION PRESENTED WARRANTS THIS
COURT’S REVIEW.
While the court of appeals correctly identified that
10 U.S.C. § 1204 provides the conditions for entitlement
to disability retirement for service members who were
on active duty or IDT for thirty (30) days or less, it failed
to properly apply the definition of IDT under 10 U.S.C.
§ 101(d)(7). IDT is defined, in relevant part, as follows:
(A) duty prescribed for Reserves ... by the
Secretary concerned under section 206 of title
37 or any other provision of law; and
(B) special additional duties authorized for
Reserves ... by an authority designated by the
Secretary concerned and performed by them
on a voluntary basis in connection with the
prescribed training or maintenance activities
of the units to which they are assigned.
16
10 U.S.C. § 101(d)(7). Section 101(d)(7)(A) refers to 37
U.S.C. § 206, which, in relevant part, compensates those
engaging in IDT with pay and points:
For a regular period of instruction that the
member is scheduled to perform but is unable to
perform because of physical disability resulting
from an injury, illness, or disease incurred or
aggravated.
37 U.S.C. § 206(a)(3)(A)(ii).
The court of appeals failed to acknowledge that
10 U.S.C. § 101(d)(7)(A) applies to those entitled to
compensation. Because Petitioner did not receive pay
or points for engaging in IDT, the court should have
analyzed and applied 10 U.S.C. § 101(d)(7)(B), because it
is controlling here.
Petitioner was given “special additional duties
authorized for Reserves.” 10 U.S.C. § 101(d)(7)(B). These
special additional duties were the enrollment in the SFIP.
Beginning on November 4, 2004, Petitioner was ordered
to participate in the SFIP, which mandated that he
exercise five (5) times per week, including engaging in a
one and one-half (1.5) mile run. App.21a, App.SOa. Under
AFI 10-248, the Air Force established that all Air Force
members, AFRC, and Air National Guard members must
meet the standards of being physically fit to support the
Air Force mission. Appxl38-150. This held all members,
even those not in military duty status, accountable for
meeting fitness standards at reassessment intervals using
the SFIP to enforce the fitness requirement. Therefore,
because Petitioner repeatedly failed the fitness test, he
17
was lawfully ordered into the SFIP to enforce the fitness
requirement of meeting fitness standards at reassessment
intervals.
Petitioner was placed in the SFIP by an authority
designated by the Secretary. The authority designated
by the Secretary counseled Petitioner to increase the
frequency of his exercise and formally ordered Petitioner
into the SFIP. Petitioner was presented with a letter
ordering him in the SFIP as established by AFI 10248, requiring almost daily exercise between normal
monthly unit training assemblies. App.49a-50a. This
AFI is a controlling instruction, because it is issued by
the Secretary of the Air Force, and compliance with the
publication is mandatory. Appxl38.
Petitioner performed the SFIP on a voluntary basis
insofar as it was without pay. Where the SFIP directed
Petitioner to record his participation on Air Force
Form 1975, Personal Fitness Progress Chart, Appxl41,
Appxl44, Appxl50, the written order included an attached
page with the required frequency and performance
standards applicable for each of the specified exercises.
The order did not specify the days and times for Petitioner
to perform these exercises but required him to exercise at
least five (5) times per week. App.49a-50a. Petitioner was
free to use his discretion in determining when to meet the
requirements of the SFIP, and he documented his training
and compliance using the specified Form 1975.
In Wake v. United States, 89 F.3d 53, 59 (2d Cir.
1996), that plaintiff was in inactive duty status, engaged
in activity incident to military service at the time of her
injury. The Second Circuit held:
18
.
.
. voluntary activities that are authorized are
considered “duty.” See 10 U.S.C. § 101(d)(7)(B)
(“inactive-duty training” means “special duties
authorized for Reserves .
.
. and performed by
them on a voluntary basis in connection with the
prescribed training or maintenance activities
of the units to which they are assigned.”)
Id. at 59 (emphasis in original). Following the same logic,
where Petitioner was ordered and authorized to participate
in SFIP, the “self-paced” component of the SFIP itself
coincides with the “voluntary basis” requirement of 10
U.S.C. § 101(d)(7)(B). Therefore, Petitioner’s participation
in the SFIP was on a voluntary basis without pay and
authorized as defined by Section 101(d)(7)(B), as IDT
without pay or points.
The court of appeals held that Petitioner was not in
duty status at the time of his stroke. The court reasoned
that, while the VA awarded Petitioner entitlements for
residuals of a CVA, “the VA’s disability determinations are
not ‘binding upon our court nor conclusive on the issue of
disability retirement.” App.lOa (quoting Gilbreth v. United
States, 95 Fed. Cl. 88, 97 (2010) (quoting Finn v. United
States, 548 F.2d 340, 342, 212 Ct. Cl. 353 (Ct. Cl. 1977)).
The plaintiff in Gilbreth relied on 10 U.S.C. § 1201(a),
which authorized disability retirement pay for a member
who incurs physical disabilities during active service.
See id. However, this is distinct from Petitioner’s claim,
such that his claim relied on 10 U.S.C. § 1204(2)(B), which
provides that, among other things, a service member may
be retired with pay where a member of the armed forces
is unfit to perform the duties of his office, grade, rank,
or rating because of a disability permanent in nature
19
caused, incurred, aggravated, or resulting from, inter
alia, performing IDT after September 23, 1996, which
was not the result of the member’s intentional misconduct
or willful neglect, and was not incurred during a period of
unauthorized absence. Because Gilbreth is premised on
“active” duty, while Petitioner’s claim was that he was on
“inactive” duty instead, Gilbreth is not controlling nor is
it persuasive. And while the VA’s determination may not
be binding nor conclusive on the issue, it should have been
considered under the circumstances.
Petitioner satisfies the criteria of 10 U.S.C. § 101(d)
(7)(B), because he suffered a stroke while performing
ordered IDT, without pay or points, while engaging in
the SFIP. Because the SFIP met the requirements of the
unambiguous statute, 10 U.S.C. § 101(d)(7)(B), and placed
Petitioner in IDT when he participated in the SFIP, he was
in a duty status when he suffered a stroke. Such a clear and
unambiguous statue cannot be disregarded or rewritten,
and it must be followed. See Sullivan v. Stroop, 496 U.S.
478, 482 (1990) (citing K Mart Corp. v. Cartier, Inc., 486
U.S. 281, 291 (1988)); Lindemann Maschinenfabrik v.
American Hoist and Derrick Co., 730 F.2d 1452, 1459
(Fed. Cir. 1984). To the extent the lower court required
some additional form of authorization, nothing in the
statute has such a requirement, and it should not have
been interpreted by the lower court to be a requirement.
The lower court’s failure to apply the unambiguous
statute is even more egregious here where the designation
of non-pay and non-points IDT is at issue. While
Petitioner’s participation in IDT meets the definition of
10 U.S.C. § 101(d)(7)(B), as well as Department of Defense
directives defined in AFI 36-2910, the court instead
20
applied the requirements for IDT for pay as enumerated
in AFMAN 36-8001, contending that it provides guidelines
for all training and education activities within an Air Force
Reserve unit; even those lasting less than two (2) hours.
App.lla-12a. However, the AFMAN, at various points,
notes that any IDT duration under two (2) hours does not
qualify for pay or points. Appx33, Appx260, Appx509-510,
Appx515.
The lower court incorrectly applied AFMAN 36-8001
such that it conveyed two (2) requirements for all IDT: (1)
the IDT must be authorized in advance and in writing, in
addition to a written order placing the service member
in a pay status, by the Reservist’s supervisor, and (2) the
IDT must be performed for either pay and points or points
only. App.lla-12a. Meanwhile, not all IDTs are authorized
in advance and in writing and not all IDTs are for pay
or points. For example, as admitted by AFRC/JA, Form
40A of AFMAN “... is the tool used to memorialize the
order and duty performed, but it is the commander or
commander’s representative, not the form, that authorizes
the IDT.” Appxl2. The AFMAN does not contain any
procedure for traditional Reservists to use Form 4OAs for
pre-authorization for IDT, and no actual evidence of such
a bifurcated process requiring both a written order and a
separate written pre-authorization was offered. Nor was
any evidence offered that this procedure even exists in
practice. There is also no requirement of compensation in
the clear language of the statute under 10 U.S.C. § 101(d)
(7)(B), and any compensation falls under 37 U.S.C. § 206 and,
thus, 10 U.S.C. § 101(d)(7)(A). In any event. Petitioner’s
orders mandated the SFIP and inherently authorized,
that is mandated and required Petitioner, to engage in
the SFIP exercise regimen five (5) times per week. The
21
lower court’s opinion makes obedience to orders optional
and, at worst, requires Reservists to ignore and disobey
lawful orders lacking a separate written authorization.
AFMAN 36-8001 sets the general requirements for
members of the Air Force Reserve unit, the Individual
Mobilization Augmentees program, and the Individual
Ready Reserve taking part in pay or points gaining activity.
AFMAN 36-8001 is a pay regulation for processing IDT
participation for pay and points as defined by 10 U.S.C.
§ 101(d)(7)(A), insofar as “duty prescribed for Reserves
.
.
. by the Secretary concerned under section 206 title 37
or any other provision of law,” such that 37 U.S.C. § 206
applies to those entitled to compensation and requires
at least a two (2) hour IDT duration. Petitioner was
participating in IDT, without pay or points, the ordered
training lasted, at most, one (1) hour, and AFMAN 368001 was, therefore, not applicable and can never apply
to without pay training lasting less than two (2) hours.
Thus, non-pay IDT necessarily falls outside the AFMAN.
AFMAN 36-8001 explicitly requires using AFI
36-2910 for determining IDT status in the event of
illness or injury during training. Paragraph 1.4 of AFI
36-2910 provides members who may be subject to LOD
determinations, such that Paragraph 1.4. 2.1. applies to:
Members of the ARC who die, incur or
aggravate an illness, injury, or disease while:
on published orders for any period of time, or
while on inactive duty.
Appxl56. The Air Force must follow the AFI and apply
the definition of IDT therein. See Service v. Dulles, 354
22
U.S. 363, 388 (1957); Voge v. U.S., 844 F.2d 776, 779 (Fed.
Cir. 1988). The Air Force has never addressed IDT as
defined in AFI 36-2910; instead ignoring the existence of
this controlling AFI for determining IDT and duty status.
The court of appeals, however, had the authority
to exercise independent legal judgment, regarding the
definition of IDT and how it applies to Petitioner. Under
the Chevron doctrine, courts were required to defer to
“permissible” agency interpretations of the statutes those
agencies administer - even when a reviewing court reads
the statute differently. Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 843 (1984).
Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 41213 (2024), however, held that the APA requires courts to
exercise their independent judgment in deciding whether
an agency has acted within its statutory authority, and
courts may not defer to an agency interpretation of the
law simply because a statute is ambiguous. Loper Bright
Enterprises recognized that exercising independent
judgment often includes according due respect to
Executive Branch interpretations of federal statutes;
however, “respect” meant that the views of the Executive
Branch could inform the judgment of the Judiciary but
did not supersede it. Loper Bright Enterprises, 603
U.S. at 382, 412-13. Loper Bright Enterprises reasoned:
“Whatever respect an Executive Branch interpretation
was due, a judge ‘certainly would not be bound to adopt
the construction given by the head of a department’ .
.
.
[ojtherwise judicial judgment would not be independent
at all.” Id. at 386 (internal citations and quotation marks
omitted).
Since Loper Bright Enterprises, courts must exercise
independent judgment when interpreting a statute. Union
23
P. R.R. Co. V. Surface Transportation Bd., 113 F.4th823,
833 (8th Cir. 2024), held that “in determining ‘whether
an agency has acted within its statutory authority, as
the APA requires,’ we ‘must exercise [our] independent
judgment.” (citations omitted). Union Pacific Railroad
further reasons that “when interpreting a statute, we
begin with the statute’s plain language, giving words the
meaning that proper grammar and usage would assign
them. If the intent of Congress can be clearly discerned
from the statute’s language, the judicial inquiry must end.”
Id. (quoting United States v. Lester, 92 F.4th 740, 742 (8th
Cir. 2024). Gray TV, Inc. v. Fed. Commun. Comm’n, 130
F.4th 1201, 12023 (11th Cir. 2025), acknowledged that “but,
now, ‘[cjourts must exercise their independent judgment in
deciding whether an agency has acted within its statutory
authority, as the APA requires.” (citations omitted). Avon
Nursing and Rehab, v. Becerra, 119 F.4th 286, 291 (2d Cir.
2024), also acknowledged that “[ajllowing the agency’s
terminology to control our interpretation of the statue
would be an abdication of our duty to interpret the statute
independently.” (citations omitted).
In light of Loper Bright Enterprises, supra, the
lower court was incorrect to not exercise its independent
judgment from the AFBCMR to determine the question
of whether Petitioner was in duty status when performing
the SFIP that resulted in a stroke, and whether the sui
generis order to participate in the SFIP automatically
placed Petitioner into duty status whenever he performed
the SFIP, which was authorized under AFI 10-248. The
lower court’s deference to the reasoning of the AFBCMR
does not exemplify an exercise of independent judgment
and fails to give proper consideration to the compulsory
mandating effect of Petitioner’s lawful orders or the
mandatory guidance in AFI 36-2910.
24
Petitioner, who was an Air Force Reservist ordered
to engage in the SFIP, suffered a stroke while complying
with the lawful orders of his commanding officers. The
repeated denial of his request for a correction of military
records to ensure he receives disability compensation
and retirement pay for this injury is a manifest injustice.
This is an issue of critical importance, not simply for
Petitioner, but for all members of the military who follow
lawful orders and who are injured for doing so. There is
no additional vehicle for relief for these individuals, and
thousands have been affected. Based on these reasons.
Petitioner pleads this Court to correct a manifest injustice
and grant the petition.
CONCLUSION
The Court should grant the petition for a writ of
certiorari.
Respectfully submitted,
Mathew B. Tully
Counsel of Record
Allen A. Shoikhetbrod
Tully Rinckey PLLC
2001 L Street, NW, Suite 902
Washington, DC 20036
(202) 787-1900
mtully@tullylegal.com
Counsel for Petitioner
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT, DECIDED
DECEMBER 16, 2024 .
la
APPENDIX B — OPINION OF THE UNITED
STATES COURT OF FEDERAL CLAIMS,
FILED JANUARY 7, 2022 .
19a
APPENDIX C — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT, DECIDED
NOVEMBER 15, 2019 .
48a
APPENDIX D — OPINION OF THE UNITED
STATES COURT OF FEDERAL CLAIMS,
FILED SEPTEMBER 11, 2018 .
61a
APPENDIX E — ORDER OF THE UNITED
STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT, FILED
MARCH 5, 2025 .
78a
APPENDIX F — STATUTORY PROVISIONS
INVOLVED .
80a
la
APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE FEDERAL CIRCUIT,
DECIDED DECEMBER 16, 2024
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
2022-1509
MALCOLM PIPES,
Plaintiff-Appellant,
V.
UNITED STATES,
Defendant-Appellee.
Decided: December 16, 2024
Before Prost, Clevenger, and Chen, Circuit Judges.
Chen, Circuit Judge.
Malcolm Pipes appeals the decision of the United States
Court of Federal Claims (Claims Court) granting the
United States’ motion for judgment on the administrative
record and denying Mr. Pipes’s. Pipes v. United States,
157 Fed. Cl. 483 (2022) (Decision'). Mr. Pipes, a former
reservist in the United States Air Force (Air Force),
seeks disability-retirement pay and benefits through his
Application for Correction of Military Records filed with
2a
Appendix A
the Air Force Board for Correction of Military Records
(AFBCMR)?
This case is before us for a second time. In the first
appeal, we reversed, holding that Mr. Pipes was in a
duty status—specifically, inactive-duty training (IDT)
status—when he was ordered to participate in the Air
Force’s Self-paced Fitness Improvement Program (SFIP).
Pipes V. United States, 791 F. App’x 910, 916 (Fed. Cir.
2019) (Pipes I\ We reversed because, “to the extent their
analysis turned on [Mr.] Pipes’ [s] duty status at the time
of his orders, both the AFBCMR and the Claims Court
erred in concluding that [Mr.] Pipes was not lawfully
ordered to perform the SFIP designed for him.” Id.
Although the SFIP was ordinarily offered to reservists
as a recommendation, Mr. Pipes received a sui generis
mandate to participate. Id. at 916 n.4. Pipes Idid not
address, however, the question of whether Mr. Pipes was in
a duty status when performing the SFIP, nor did it suggest
that the sui generis order to participate automatically
placed him into such status. On remand, the Claims Court
and the AFBCMR denied relief to Mr. Pipes, concluding
that, at the time of his injury, he was not in IDT status.
For the reasons explained below, we affirm.
1. “The Secretary of a military department may correct
any military record of the Secretary’s department when the
Secretary considers it necessary to correct an error or remove an
injustice. [S]uch corrections shall be made by the Secretary acting
through boards of civilians of the executive part of that military
department.” 10 U.S.C. § 1552(a)(1).
3a
Appendix A
Background
Our previous decision explains the circumstances of
Mr. Pipes’s enrollment in the SFIP and his stroke while
participating in that program, as well as the procedural
history before the AFBCMR and Claims Court leading up
to that appeal. Pipes 1, 791 F. App’x at 911-14. We assume
familiarity with these facts and therefore provide further
details only as relevant to this appeal.
I
We begin with an overview of the legal framework for
Air Force reserve disability retirement, with a particular
focus on IDT status. Section 1204 of Title 10 of the United
States Code provides the conditions for entitlement to
disability retirement for service members who were on
active duty for 30 or fewer days or on IDT. In relevant
part, the statute provides:
Upon a determination by the Secretary
concerned^ that a member of the armed forces
... is unfit to perform the duties of his office,
grade, rank, or rating because of physical
disability, the Secretary may retire the member
with retired pay ... if the Secretary also
determines that the disability ... is a result
of an injury, illness, or disease incurred or
2. The term “Secretary concerned” means “the Secretary of
the Air Force, with respect to matters concerning the Air Force
and the Space Force.” 10 U.S.C. § 101(a)(9)(C).
4a
Appendix A
aggravated in line of duty .
.
. while performing
active duty or inactive-duty training ....
10 U.S.C. § 1204(2)(B)(i) (emphases added). The term
“inactive-duty training,” in turn, is defined in relevant
part as:
(A) duty prescribed for Reserves ... by the
Secretary concerned under section 206 of title
37 or any other provision of law; and
(B) special additional duties authorized for
Reserves ... by an authority designated by the
Secretary concerned and performed by them
on a voluntary basis in connection with the
prescribed training or maintenance activities
of the units to which they are assigned.
Id. § 101(d)(7).
The Air Force regulates “reserve personnel
participation and training procedures” through Air
Force Manual (AFMAN) 36-8001. J.A. 473 (capitalization
removed); see also id. (The manual “gives guidelines for
training and education activities within an Air Force
Reserve unit.”). AFMAN 36-8001 is issued by order of the
Secretary of the Air Force (Secretary), and compliance
with the publication is mandatory. Id. Chapter four of
AFMAN 36-8001 concerns IDT, including the types of
IDT available and the administrative requirements for
“IDT Authorization.” J.A. 250-51 1111 4.1-4.2. In relevant
part, paragraph 4.2.1 provides:
5a
Appendix A
4.2.1.
All IDT must:
4.2. 1.1. Have advance authorization
from the member’s unit commander
(or designated representative) for unit
personnel. For Individual Reservists
the authorizing authority is the
supervisor or program manager (This
is done in Block III of the AF Form
40A).
4. 2. 1.2 .
All IDT periods must
be approved in advance, in writing,
by the member’s supervisor with an
information copy to the appropriate
assigned Program Manager, in
advance of performing any IDT
period.
4. 2. 1.3. Be performed for pay and
points,^ or points only as an [Air
Force Reserve] member without pay
from another US government source
(i.e. no dual compensation).
J.A. 250 V 4.2.1 (emphases added). This paragraph conveys
two requirements for “[a]H” IDT: (1) the IDT must be
authorized in advance and in writing by the reservist’s
3. “Points are a unit of measurement of tracking a member’s
participation. They are also used to calculate the amount of
participation for retirement purposes.” J.A. 238 If 2.1.
6a
Appendix A
supervisor, and (2) the IDT must be performed for either
pay and points or points only. Id.
Chapter four of AFMAN 36-8001 also provides the
minimum duration of an activity to be eligible for IDT;
“Paid IDT periods shall not be under 4 hours,” and “[p]oints
only IDT periods shall not be under 2 hours.” Id. at
254 If 4.9. The only exception is for certain designated
activities, for which a reservist can use the “cumulative
method of time accounting” to “accumulate time spent
(over 1 or more days) until reaching the 4-hour standard
for one point.” Id. 11 4.9.1.
II
On remand from our decision in Pipes I, the AFBCMR
denied relief to Mr. Pipes on the basis that the order Mr.
Pipes received to participate in the SFIP, “even though
lawful, was not enforceable when the member was in
civilian status,” and therefore Mr. Pipes was not in duty
status when his stroke occurred while he was participating
in the SFIP. J.A. 468, 470 (emphases added). The (Claims
Court vacated that decision as arbitrary and capricious
because the “finding that the lawful order was legally
unenforceable is inconsistent with” this court’s holding in
Pipes I. Pipes v. United States, 150 Fed. Cl. 76, 82-84,
87 (2020). The Claims Court further noted that the
AFBCMR “did not consider whether [Mr. Pipes] was
required to satisfy the requirements of the AFMAN
to qualify for IDT status.” Id. at 86-87. Accordingly,
the Claims Court remanded the case to the AFBCMR
to consider that question, which turns on “whether the
7a
Appendix A
AFMAN’s provisions are applicable to IDT pursuant
to subparagraph (B) of section 101(d)(7) of Title 10.”^
Id. at 87.
In December 2020, on remand from the Claims
Court, the AFBCMR again denied relief to Mr. Pipes.
The AFBCMR determined that “the AFMAN 368001 administrative requirements apply to both 10
U.S.C. [§] 101(d)(7), subparagraphs (A) and (B)” and
“AFMAN 36-8001 implements 10 U.S.C. [§] 101(d)(7) by
providing the procedures for scheduling and authorizing
IDTs, paid or unpaid, and the method for ensuring
the proper accounting for each IDT.” J.A. 346. The
AFBCMR concluded, then, that under the AFMAN,
reservists “must have the commander’s (or designee[’s])
authorization in advance to perform an IDT, paid or
unpaid.” Id. The AFBCMR found that Mr. Pipes failed
to prove he obtained the authorization for IDT required
by the AFMAN:
Although the commander issued [Mr. Pipes] a
lawful order to perform the SFIP . . ., after
a review of the entire case file, to include
[Mr. Pipes’s] rebuttal, the [AFBCMR] finds
no documented evidence of advance IDT
authorization by the commander (or designee)
for exercising. . . . While the commander
ordered [Mr. Pipes] to exercise, the [AFBCMR]
4. Mr. Pipes does not claim that at the time of his stroke he
was in IDT status under subparagraph (A) of that section.
8a
Appendix A
finds this order does not automatically authorize
IDT, paid or unpaid.
Id.
Following that decision, Mr. Pipes moved before the
Claims Court for a further remand to the AFBCMR so
that it could consider a new report by Mr. Pipes’s expert.
Colonel (Ret.) Larry D. Youngner. The Claims Court
granted Mr. Pipes’s motion.
In August 2021, the AFBCMR reviewed Col.
Youngner’s new expert report (as well as his supplemental
expert report) and issued another decision, stating that
it “remain[ed] unconvinced the evidence presented
demonstrates an error or injustice.” J.A. 433. The
AFBCMR found that “a valid order to perform duty does
not automatically place a service member in an IDT period
and the commander, outside of any other orders given to
the reservist, must approve IDT periods.” Id. at 435. It then
reiterated that, “as explained in [the AFBCMR’s] previous
conclusion ... [Mr. Pipes] has provided no evidence that
his commander ever attempted to authorize[] an unpaid
IDT for [Mr. Pipes’s] SFIP participation outside of the
UTA.” Id.^
In January 2022, the Claims Court granted the United
States’ motion for judgment on the administrative record
5. A UTA, or Unit Training Assembly, is a scheduled period
of IDT completed by a Reserve unit. See J.A. 250 H 4.1.2; Pipes I,
791 F. App’x at 912.
9a
Appendix A
and denied Mr. Pipes’s.® First, the court rejected Mr.
Pipes’s argument that the AFBCMR’s interpretation of
the AFMAN’s scope was contrary to law. Decision, 157
Fed. Cl. at 489-90. Second, the court agreed with the
AFBCMR that the order for Mr. Pipes to participate
in the SFIP did not itself authorize IDT status and that
“there is no evidence in the record that [Mr. Pipes] had
advance authorization for IDT status, as required by the
AFMAN.”/d. at 491-92.
Mr. Pipes appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(3).
Standard of Review
We review a decision of the Claims Court granting
or denying a motion for judgment on the administrative
record de novo and apply the same standard of review as
the Claims Court. Roth v. United States, 378 F.3d 1371,
1381 (Fed. Cir. 2004); see also Chambers v. United States,
417 F.3d 1218, 1227 (Fed. Cir. 2005). Under that standard,
“we will not disturb the decision of the [AFBCMR] unless
it is arbitrary, capricious, contrary to law, or unsupported
by substantial evidence.” Chambers, 417 F.3d at 1227.
Discussion
Mr. Pipes’s claim for disability-retirement pay and
benefits rests on his view that he was in IDT status at
6. The Claims Court “review[ed] both the AFBCMR’s
December 2020 decision on remand after Pipes /[] and its August
2021 decision responding to Col. Youngner’s report.” Decision,
157 Fed. Cl. at 488 n.5 (citations omitted).
10a
Appendix A
the time of his injury. Mr. Pipes does not dispute that he
did not receive authorization to perform IDT for either
pay or points. Instead, Mr. Pipes contends that when
participating in the SFIP, he was performing IDT for no
pay and no points and was authorized to do so. He alleges
two errors in the decision of the Claims Court on appeal.
First, Mr. Pipes argues that the Claims Court erred in
upholding the AFBCMR’s conclusion that the AFMAN
applies to all IDT under 10 U.S.C. § 101(d)(7)(B). Second,
Mr. Pipes contends that even if the AFMAN did apply
to him, the Claims Court erred in agreeing with the
AFBCMR that he failed to prove he received the advance
authorization required by the AFMAN. We reject both
arguments.
I
According to Mr. Pipes, “[t]he AFMAN does not apply
to duties not performed for pay or points, nor does it apply
to training periods less than two (2) hours.” Appellant’s
Br. 21. In other words, Mr. Pipes contends that a reservist
can perform IDT without complying with the AFMAN’s
procedural requirements if performing duties not for pay
or points or duties of insufficient duration.
Mr. Pipes has not shown the existence of a class of
IDT that is without compensation and not subject to the
strictures of the AFMAN. The AFMAN, with which
“compliance ... is mandatory,” J.A. 473 (capitalization
removed), states on its face that
IDT must ... [b]e
performed for pay and points, or points only” and must
“[h]ave advance authorization from the member’s unit
Ila
Appendix A
commander,” J.A. 250 V 4.2.1 (emphasis added). Mr. Pipes
points to no provision of the AFMAN contemplating that
IDT may be performed without receipt of pay or points or
that the AFMAN applies to only a subset of IDT.
Mr. Pipes relies primarily on several publications—
Air Force Instruction 36-2910 and two chapters from
Volume 7A of the Department of Defense (DOD) Financial
Management Regulation—that discuss IDT “without
pay.” See J.A. 180; J.A. 311; J.A. 312. These references do
not support Mr. Pipes’s argument. It is undisputed that
IDT without pay exists. These references do not show
the existence of IDT without compensation, i.e., IDT
without pay or points. Indeed, they are consistent with
the AFMAN, which distinguishes between IDT “for pay
and points” and IDT “for .
.
. points only .
.
. without pay
from another US government source.” J.A. 250 If 4.2. 1.3
(emphases added). Mr. Pipes also cites a definition of IDT
contained in DOD Instruction Number 4515.16, but this
definition does not even mention the words pay or points,
let alone indicate whether IDT may be performed without
pay or points. J.A. 230-31.
Nevertheless, even if Mr. Pipes were correct as to the
existence of a type of IDT without compensation under 10
U.S.C. § 101(d)(7)(B)," the AFMAN is clear that ‘^all IDT”
must be authorized in advance. J.A. 250 (emphasis added);
see also 10 U.S.C. § 12315(a) (mandating that “[d]uty
without pay shall be considered for all purposes as if
7. We note that Mr. Pipes does not challenge the legality of
AFMAN 36-8001 as contrary to 10 U.S.C. § 101(d)(7)(B).
12a
Appendix A
it were duty with pay”). Mr. Pipes confuses the AFMAN’s
requirements for IDT with the scope of the AFMAN. That
the AFMAN does not contemplate IDT without pay or
points or IDT for activity periods under two hours does
not mean that such activity can constitute IDT beyond
the scope of the AFMAN and thus be exempt from its
procedural requirements. Such logic would lead to the
nonsensical result that activity failing to meet any of the
AFMAN’s regulations of IDT—for example, activity that
lacks “appropriate and adequate training”—is exempted
from the AFMAN’s requirement that all IDT be approved
in advance. J.A. 250.
The Claims Court did not err in concluding that the
AFBCMR’s determination that the AFMAN applies to
and requires advance authorization for all IDT is not
arbitrary, capricious, contrary to law, or unsupported by
substantial evidence.
II
We next address Mr. Pipes’s contention that even if the
AFMAN requires that he obtain advance authorization
for IDT status, he received such authorization for his
participation in the SFIP and the Claims Court and
AFBCMR erred in holding otherwise. We reject each of
Mr. Pipes’s arguments in support of this position.
A
Mr. Pipes first relies on certified statements by two
of his former supervising Commanders asserting that he
13a
Appendix A
was in IDT status when performing his SKIP. Mr. Pipes
forfeited this argument. As the United States points out,
“Mr. Pipes did not bring up these statements or argue
their relevance before the AFBCMR on two remands or
to the [Claims Court] after the AFBCMR’s subsequent
two decisions, even though he had opportunities to do so.”
Appellee’s Br. 32; see Metz v. United States, 466 F.3d 991,
999 (Fed. Cir. 2006) (collecting cases and finding forfeiture
of “ability to challenge the [AFBCMR’s] decision based
on” argument not raised to the AFBCMR). Mr. Pipes’s
only response is to note that these statements were part
of the record before the AFBCMR, the Claims Court, and
our court during Pipes 1. See Appellant’s Reply Br. 5-6.
This does not suffice. Courts of appeals “apply forfeiture
to unarticulated legal and evidentiary theories not only
because judges are not like pigs, hunting for truffies
buried in briefs or the record, but also because such a
rule ensures fairness to both parties.” Jones v. Kirchner,
835 F.3d 74, 83, 425 U.S. App. D.C. 302 (D.C. Cir. 2016)
(cleaned up).
In any event, despite Mr. Pipes’s failure to particularly
identify to the AFBCMR the statements he now relies
on, the AFBCMR reviewed Mr. Pipes’s “entire case
file” and “all Exhibits” yet still found “no documented
evidence of advance IDT authorization.” J.A. 346; J.A.
433, 435. The AFBCMR presumably reviewed the
Commanders’ certified statements and reasonably found
them inadequate. Neither Commander avers that he
gave Mr. Pipes the necessary advance authorization for
IDT status, nor claims personal knowledge that another
Commander did so. The conclusory, post hoc statements
14a
Appendix A
do not render the AFBCMR’s finding unsupported by
substantial evidence.
B
Mr. Pipes next argues that the lawful order requiring
him to participate in the SFIP itself constituted
authorization for IDT status. Like the AFBCMR and the
Claims Court, we are unpersuaded by this argument. The
Claims Court noted that Mr. Pipes “has not pointed to
any source of law establishing an IDT status implicitly
authorized in this way, and [Mr. Pipes’s] counsel admitted
at oral argument that this situation was not necessarily
contemplated by the relevant statutes and regulations.”
Decision, 157 Fed. Cl. at 492. Mr. Pipes has also not
provided any such authority before us.
Our decision in Clark v. United States, 656 F.3d 1317
(Fed. Cir. 2011) (Clark II) is instructive. In Clark II,
National Guard members brought a class action seeking
compensation for time spent taking correspondence
courses that they were required to take by the Secretary
of the Army and the Secretary of the Air Force. Id. at
1318-19. We affirmed a grant of summary judgment
against the National Guard members because regulations
prescribed by the respective Secretaries required “written
authorization placing [a member] into a pay duty status” as
a “prerequisite” for training to be compensable, and “none
of the plaintiffs received written orders or authorizations
from their state commanders in connection with any of the
correspondence courses they took.” Id. at 1322 (citation
omitted). That is, Clark II held that a requirement to
15h
Appendix A
participate in certain training does not ipso facto place a
member of the armed forces into duty status if advance
authorization for such status is a prerequisite prescribed
by the Secretary but is not obtained?
Mr. Pipes cites several non-binding cases and one
case from one of our predecessor courts in support
of his argument. Crucially, none of Mr. Pipes’s cases
address whether a lawful order to perform some activity
automatically places a service member in duty status
despite a lack of required preauthorization for such status.
In Skaradowski v. United States, 471 F.2d 627, 629, 200 Ct.
Cl. 488 (Ct. Cl. 1973) (per curiam), for example, a member
of the Army Active Reserve was ordered in writing to
active duty for training for a defined duration “unless .
.
.
extended by proper authority.” The Army Board for the
Correction of Military Records found that verbal orders
of the reservist’s commanding officer were insufficient
evidence that his active duty had been extended. Id. at
629, 631. The Court of Claims disagreed, holding that
the reservist’s initial period of active duty was properly
extended by verbal order, notwithstanding that the order
was not confirmed in writing. Id. at 631. By contrast, the
issue in our case is whether Mr. Pipes was authorized for
duty status at all when performing his SFIP.
8. Mr. Pipes cites to and misreads our earlier decision in
Clark V. United States, 322 F.3d 1358 (Fed. Cir. 2003) (Clark I),
as determining that the National Guard members were “entitled
to compensation for completing required correspondence courses
in off duty time.” Appellant’s Br. 34. We expressly noted in Clark
II that our Clark I“opinion did not express an ultimate view on
the merits of [the] claim for compensation.” 656 F.3d at 1321.
16a
Appendix A
Furthermore, unlike the formalistic reasoning of the
military corrections board in Skaradowski, the AFBCMR
here found that “the case turns on whether [Mr. Pipes]
had prior commander authorization to be in a no pay/no
points IDT status” regardless of the absence in Mr. Pipes’s
case file of a completed Form 40A—the form directed by
the AFMAN to be used in obtaining and documenting
advance authorization for IDT. J.A. 346; see J.A. 250
V 4.2. 1.1; J.A. 257 V 4.12.1.1; see also Decision, 157 Fed.
Cl. at 491 (“[T]he lack of the [Air Force] Form 40A was
not determinative for the [AFBCMR’s] decision .
.
.
.”). Mr.
Pipes’s arguments concerning Form 40A therefore miss
the point, as the AFBCMR’s decision did not turn on the
absence of that form.
Accordingly, the AFBCMR’s conclusion that the order
directing Mr. Pipes to participate in the SFIP did not
itself authorize IDT status is not arbitrary, capricious,
contrary to law, or unsupported by substantial evidence.
C
Finally, Mr. Pipes suggests that his stroke must
have occurred while he was in duty status because
the Department of Veterans Affairs (VA) has granted
him service connection for residuals of the stroke. See
Appellant’s Br. 24, 32, 40. But because of the different
standards applicable to the VA’s inquiry for service
connection, “the VA’s disability determinations are not
‘binding upon the court nor conclusive on the issue of
disability retirement.’” Gilbreth v. United States, 94 Fed.
Cl. 88, 97 (2010) (quoting Finn v. United States, 548 F.2d
17a
Appendix A
340, 342, 212 Ct. CL 353 (Ct. Cl. 1977)). Such differences
are on full display in this case. By regulation, the VA will
consider a “secondary condition” to be service connected
if the disability “is proximately due to or the result of a
service-connected disease or injury.” 38 C.F.R. § 3.310(a).
In granting service connection for Mr. Pipes’s stroke,
the Board of Veterans’ Appeals did not determine that
Mr. Pipes’s stroke was incurred or aggravated during
duty status. Rather, it merely found that the stroke
was proximately caused by Mr. Pipes’s already serviceconnected hypertension. See J.A. 271-74; Appellee’s Br.
36-37 (citing J.A. 271-74). This finding has no bearing
on the issue of Mr. Pipes’s duty status and whether he
received the advance authorization required by the
AFMAN for such status.®
After reviewing Mr. Pipes’s submissions, the
AFBCMR ultimately found that Mr. Pipes provided no
evidence that he was authorized for IDT status when
9. Mr. Pipes relatedly contends that a conflict exists between
the applications of 10 U.S.C. § 1204 and 38 U.S.C. § 5107, the
statutory “benefit of the doubt” rule applicable to claims for VA
benefits. In obligating “the Secretary” to provide VA claimants
with the benefit of the doubt in cases of approximately equipoised
evidence, section 5107 refers to the Secretary of Veterans Affairs,
not the Secretary of the Air Force or of any other military branch.
See 38 U.S.C. § 101(1). And to the extent Mr. Pipes refers to the
differing outcomes between the VA’s grant of service connection
and the AFBCMR’s determinations regarding Mr. Pipes’s duty
status, there is no “conflict” as just explained.
18a
Appendix A
performing the SFIP. We cannot say that this finding is
arbitrary, capricious, contrary to law, or unsupported by
substantial evidence.
CONCLUSION
We have considered Mr. Pipes’s remaining arguments
but find them unpersuasive. We sympathize with the plight
of Mr. Pipes. However, we discern no error in the decision
under review before us. We therefore affirm the judgment
of the Claims Court.
AFFIRMED
Costs
No costs.
19a
APPENDIX B — OPINION OF THE UNITED STATES
COURT OF FEDERAL CLAIMS,
FILED JANUARY 7, 2022
UNITED STATES COURT OF FEDERAL CLAIMS
157 Fed.Cl. 483
MALCOLM PIPES,
Plaintiff,
V.
UNITED STATES,
Defendant.
No. 15-1163C
Filed: January 7, 2022
MEMORANDUM OPINION
HERTLING, Judge
The plaintiff, Malcolm Pipes, seeks review of a
decision of the Air Force Board for Correction of Military
Records (“AFBCMR” or “the Board”). While in the U.S.
Air Force (“USAF”) Reserve, the plaintiff was injured
while participating in the Air Force’s Self-Paced Fitness
Improvement Program (“SFIP”) between scheduled Unit
Training Assemblies (“UTAs”). The AFBCMR denied him
20a
Appendix B
disability-retirement pay and benefits, finding that he was
not in inactive-duty training (“IDT”) status at the time
of his injury and thus was not injured in the line of duty,
as required by the relevant statute to receive disability¬
retirement pay and benefits.
This case has been before the Board and this court on
numerous occasions. After the case returned to the court
from the most recent remand to the AFBCMR, the parties
filed supplemental briefs in support of their cross-motions
for judgment on the administrative record under Rule 52.1
of the Rules of the Court of Federal Claims (“RCFC”).
The plaintiff argues that he was in IDT status at
the time of his injury because he was lawfully ordered
to exercise in the SFIP between UTAs, and that the
AFBCMR erred in holding otherwise. The defendant
argues that the AFBCMR decision was not arbitrary and
capricious and should be upheld.
The applicable Air Force guidance requires advance
authorization for a reservist to be in IDT status. Because
there is no evidence that the plaintiff was authorized for
IDT, the AFBCMR found that he was not in IDT status
at the time of his injury. The AFBCMR’s findings are
consistent with the law and the record and, under the
applicable standard of review, must be sustained.
The defendant’s motion for judgment on the
administrative record is granted, and the plaintiff’s motion
for judgment on the administrative record is denied.
21a
Appendix B
I.
BACKGROUND
A.
Facts^
Beginning in 1983, the plaintiff served in the USAF
for approximately 16 years, consisting of seven years on
active duty and nine in the USAF Reserve. (ECF 1, If 7.)
In 2004, while serving in the USAF Reserve, the plaintiff
failed an annual fitness assessment and received a “poor”
rating. {Id. If 13.) As a result of that rating, the plaintiff
received verbal counseling and was enrolled in the Air
Force’s SFIP with orders to begin running five days a
week between UTAs. {Id.)
On September 3, 2006, the plaintiff became ill while
running in accordance with the SFIP between scheduled
UTAs. {Id. If 19.) In the early hours of September 4, he
went to a hospital where his injury was diagnosed as
a cerebrovascular accident, commonly referred to as a
stroke. {Id.) Within days, the plaintiff notified the USAF
of the diagnosis. {Id. If 21.)
In November 2007, the USAF determined the plaintiff
to be “medically disqualified for continued military duty”
1. For a full recitation of the facts, see Chief Judge Braden’s
first memorandum opinion in this matter. Pipes v. United States
{“Pipes I”), 134 Fed. Cl. 380, 382-86 (2017); see also Pipes v.
United States {“Pipes III”), 791 F. App’x 910, 911-13 (Fed. Cir.
2019) (providing a summary of the facts). The facts here are only
a background summary relevant to the parties’ supplemental
briefs in support of their cross-motions for judgment on the
administrative record.
22a
Appendix B
due to his stroke. (AR 749.^) He was transferred from the
USAF Reserve to the Retired Reserve in 2008, with an
effective retirement date of September 4, 2006. (AR 220;
see also AR 370.)
B.
Procedural History
In 2011, after receiving his USAF medical records, the
plaintiff filed an application for correction of his military
records with the AFBCMR. Among other things, the
plaintiff requested that “[h]is Air Force Reserve medical
and personnel records be corrected to reflect that he is
permanently medically retired at 60 percent (or more)
effective 4 September 2006.” (AR 41.) The AFBCMR
denied relief, finding that “[i]nsufficient relevant evidence
has been presented to demonstrate the existence of error
or injustice.” (AR 46.)
In 2015, the plaintiff filed a complaint in this court
seeking review of the Board’s rejection of his request for
disability retirement. (ECF 1.) He alleged that, because
he was participating in the SFIP, he was in IDT status
at the time of his stroke and thus entitled to disability
retirement. (Id. VV 41-44.) The court denied the defendant’s
motion to dismiss and remanded the case to the AFBCMR
for reconsideration due to the parties’ supplemental
declarations of relevant witnesses and additional medical
records not before the Board when it first ruled against
the plaintiff. Pipes 1, 134 Fed. Cl. 380.
2. Citations to the administrative record (ECF 97) are cited
as “AR” with the pagination reflected in that record as filed with
the court.
23a
Appendix B
On remand, an Air Force medical advisor concluded
that it was “plausible that the [plaintiff’s] participation
in vigorous training for his Fitness Assessment, during
the 12-hour cycle of time between his alleged running
activity and onset of stroke symptoms, contributed to the
occurrence of a stroke on or about [September 4, 2006].”
(AR 34-35.) The AFBCMR nevertheless denied relief
because the SFIP was not undertaken in the line of duty.
(AR 38.) The AFBCMR found that the plaintiff “was never
lawfully ordered to participate in SFIP while in civilian
status nor that he was in an IDT status when he did so
participate.” (Id.)
After the AFBCMR issued its decision, this court
granted judgment on the administrative record to the
defendant. Pipes v. United States (‘Pipes IP’), 139 Fed.
Cl. 538 (2018). The court agreed with the AFBCMR that
participation in the SFIP while in non-duty status could
not be mandated. Id. at 544-45. The court concluded that
the AFBCMR’s determination—that the plaintiff “was
never lawfully ordered to participate in SFIP while in
civilian status nor that he was in an IDT status when he
did so participate” (AR 38)—was not arbitrary, capricious,
unsupported by substantial evidence, or contrary to law.
Pipes II, 139 Fed. Cl. at 545.
On the plaintiff’s appeal, the Federal Circuit reversed
and held “that, to the extent their analysis turned on [the
plaintiff’s] duty status at the time of his orders, both the
AFBCMR and the Claims Court erred in concluding that
[the plaintiff] was not lawfully ordered to perform the
SFIP designed for him.” Pipes III, 791 F. App’x at 916.
24a
Appendix B
The Federal Circuit explained that “the argument that
[the plaintiff] was in a non-duty status when ordered to
perform his SFIP is no longer a valid rationale for denying
his disability retirement.” Id. Although the relevant
Air Force Instruction (“AFI”) “encouraged” SFIP
participation, as a mandated lawful order, “the apparently
sui generis SFIP designed for [the plaintiff] to perform
when in civilian status went beyond recommendation and
encouragement
Id. at 916 n.4. The Federal Circuit
remanded the case to this court with instructions to
remand the case to the AFBCMR for further assessment
of the plaintiff’s request for correction of his military
records. Id. at 916.
Following the remand from the Federal Circuit, the
case was reassigned to the undersigned (ECF 51) and then
was remanded to the AFBCMR for reconsideration in
accordance with the Federal Circuit’s mandate (ECF 52).
The AFBCMR again denied relief to the plaintiff in
May 2020. (AR 23.) It agreed with the Federal Circuit
that the plaintiff had received a lawful order from his
commander while in duty status but nonetheless found that
“his stroke occurred during a non-duty, civilian status.”
(AR 29.) The Board based its decision on the exhibits,
the Air Force Reserve Command (“AFRC”) Supplement
provisions on the SFIP, and the statutory definition of
“inactive- duty training.” (Id.) The AFBCMR found that
“a reservist’s participation in the SFIP between UTAs
does not warrant automatic IDT status, even if ordered
during [sic] while in a duty status.” (Id.) It further found
“no evidence ... that the [plaintiff] requested or the
25a
Appendix B
[plaintiff’s] commander ever attempted to place him in
an authorized IDT status between UTAs to exercise.”
(AR 30.) The AFBCMR therefore found that the plaintiff
did not warrant an “In Line of Duty” determination and
subsequent disability-retirement processing. (Id.)
On consideration of the parties’ cross-motions
for judgment on the administrative record following
the Board’s decision, the Court found that the Air
Force’s argument that the SFIP order was lawful, yet
unenforceable, was inconsistent with the Federal Circuit’s
decision. Pipes v. United States ("Pipes IV”), 150 Fed. Cl.
76, 82-84 (2020). Although the Court rejected the Board’s
decision, the plaintiff was not awarded the relief he sought.
Because it had rejected the plaintiff’s claim on another
ground, the AFBCMR had not considered whether the
relevant provision of the Air Force Manual (“AFMAN”)
governing IDT status, AFMAN 36-8001, Reserve
Personnel Participation and Training Procedures (Jan.
22, 2004), applied to both subparagraphs of the statutory
definition of IDT.' Id. at 86-87. If the AFMAN applied only
to the first subparagraph of the statute and if the plaintiff
could show that his service was authorized under the
second subparagraph, then the plaintiff would not need to
3. “Inactive-duty training” is statutorily defined as “(A)
duty prescribed for Reserves by the Secretary concerned under
section 206 of title 37 or any other provision of law; and (B)
special additional duties authorized for Reserves by an authority
designated by the Secretary concerned and performed by them
on a voluntary basis in connection with the prescribed training or
maintenance activities of the units to which they are assigned.”
10 U.S.C. § 101(d)(7)(A) & (B).
26a
Appendix B
meet the AFMAN’s administrative prerequisites for IDT
status. The Court remanded the case to the AFBCMR so
that it could consider the issue in the first instance.^ Id.
In December 2020, the AFBCMR again denied the
plaintiff relief. (AR 12.) It found that the AFMAN’s
provisions governing IDT do apply to both subparagraphs
of the statutory definition of IDT. (AR 21.) Because service
“members must have the commander’s (or designee)
authorization in advance to perform an IDT, paid or
unpaid,” the plaintiff cannot establish that he was in IDT
status while participating in the SFIP. (Id.) Despite the
lawful order for the plaintiff to participate in the SFIP
between UTAs, the AFBCMR found “no documented
evidence of advance IDT authorization by the commander
(or designee) for exercising.” (Id.) The commander’s order
to participate in the SFIP, the AFBCMR found, “does not
automatically authorize IDT, paid or unpaid,” regardless
of whether an AF Form 40A is required for IDT status.
(Id.) Without evidence of the commander’s authorization,
the AFBCMR declined to correct the plaintiff’s records
and award him disability retirement. (Id.)
After the AFBCMR issued its December 2020
decision, the plaintiff filed a supplemental brief in support
of his motion for judgment on the administrative record.
(ECF 79.) With his supplemental brief, he attached a
report written by retired Air Force Colonel Larry D.
4. In Pipes II, Judge Braden applied the AFMAN’s provisions
governing IDT to the plaintiff but did not address the issue of
whether they should not apply to the plaintiff, as the plaintiff argued
in Pipes IV and argues now. See Pipes II, 139 Fed. Cl. at 543-44.
27a
Appendix B
Youngner. Col. Youngner’s report purportedly supported
the plaintiff’s position that he was in IDT status when
performing the SFIP between UTAs. The report,
however, had not been submitted to the AFBCMR,
so it had not considered the report. The Court held a
status conference at which the plaintiff was informed
that because Col. Youngner’s report was not part of
the administrative record, it could not be considered in
support of the plaintiff’s motion for judgment. Thereafter,
on the plaintiff’s unopposed motion for remand, the Court
remanded the case to the AFBCMR for the limited
purpose of allowing the plaintiff to submit Col. Youngner’s
report to the AFBCMR for consideration. (ECF 82.)
In the AFBCMR’s most recent decision in August
2021, it again denied the plaintiff relief. (AR 1.) The
AFBCMR reviewed all submitted exhibits, Col. Youngner’s
report, the plaintiff’s rebuttal to various Air Force
advisory opinions received by the Board regarding Col.
Youngner’s report, and a supplemental report prepared
by Col. Youngner. (AR 8.) The AFBCMR’s determination,
however, did not change. (AR 8-11.)
Following the AFBCMR’s December 2020 and August
2021 decisions, the parties have filed supplemental briefs
in support of their cross-motions for judgment on the
administrative record. (ECF 100 & 104.) The Court heard
oral argument on December 9, 2021.
IL JURISDICTION AND STANDARD OF REVIEW
The Tucker Act, 28 U.S.C. § 1491(a)(1), authorizes
this court to exercise jurisdiction over claims against the
28a
Appendix B
United States based on money-mandating statutes and
regulations. Metz v. United States, 466 F.3d 991, 995-98
(Fed. Cir. 2006). A statute is money-mandating when it
is “reasonably amenable to the reading that it mandates
a right of recovery in damages.” United States v. White
MountaiM Apache Tribe, 537 U.S. 465, 473, 123 S.Ct. 1126,
155 L.Ed.2d 40 (2003). The statute governing military
retirement for disability, 10 U.S.C. § 1201, is a money¬
mandating statute. Chambers v. United States, 417 F.3d
1218, 1223 (Fed. Cir. 2005).
As a claim for military-retirement pay, the plaintiff’s
claim falls within the court’s jurisdiction. Pipes 1, 134 Fed.
Cl. at 388, 393-95 (finding jurisdiction over the plaintiff’s
claim and denying the defendant’s motion to dismiss).
The parties have cross-moved for judgment on the
administrative record under RCFC 52.1. In consideration
of such motions, the court’s review is limited to the
administrative record, and the court makes findings of
fact as if it were conducting a trial on a paper record. See
Bannum, Inc. v. United States, 404 F.3d 1346, 1354 (Fed.
Cir. 2005); see also Young v. United States, 497 F. App’x 53,
58-59 (Fed. Cir. 2012) (per curiam) (applying the standard
of review articulated in Bannum to a motion for judgment
on the administrative record involving review of a decision
of the AFBCMR), cert, denied, 569 U.S. 964, 133 S.Ct.
2036, 185 L.Ed.2d 898 (2013). The court must determine
whether a party has met its burden of proof based on
the evidence contained within the administrative record.
Bannum, 404 F.3d at 1355. Genuine issues of material
fact will not foreclose judgment on the administrative
record. Id. at 1356.
29a
Appendix B
The court must uphold a “decision of the AFBCMR
unless it is arbitrary, capricious, contrary to law, or
unsupported by substantial evidence.” Barnick v. United
States, 591 F.3d 1372, 1377 (Fed. Cir. 2010). The court
cannot substitute its judgment for that of the military
departments, even if “reasonable minds could reach
differing conclusions on the same evidence.” Heisig
V. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983).
Although the scope of review is narrow, the court must
determine “whether [the agency] examined ‘the relevant
data’ and articulated ‘a satisfactory explanation’ for [its]
decision, ‘including a rational connection between the facts
found and the choice made.’” Sharpe v. United States, 935
F.3d 1352, 1358 (Fed. Cir. 2019) (alterations in original)
(quoting Dep’t of Comm. v. New York, _ U.S. _ , 139 S.
Ct. 2551, 2569, 204 L.Ed.2d 978 (2019)).
IILDISCUSSION®
To qualify for disability retirement, a military
member’s disability must, in relevant part, be “a result of
an injury, illness, or disease incurred or aggravated in the
line of duty ... while performing active duty or inactive¬
dutytraining.” 10 U.S.C. § 1204(2)(B)(i). The plaintiff was
not in active-duty status at the time of his injury. The only
other option under the law by which he can qualify for
disability retirement is IDT status. The issue before the
Board and this Court is whether the plaintiff was in IDT
status at the time of his stroke. If the plaintiff was not in
5. The Court reviews both the AFBCMR’s December 2020
decision (AR 12-22) on remand after Pipes IV and its August 2021
decision (AR 1-11) responding to Col. Youngner’s report.
30a
Appendix B
IDT status when performing his SKIP at the time of his
stroke, he is not entitled to a disability retirement; if he
was in IDT status, he is entitled to disability retirement.
The AFBCMR’s December 2020 and August 2021
decisions found that the plaintiff was not in IDT status
at the time of his stroke. The plaintiff argues that those
decisions were arbitrary, capricious, and an abuse of
discretion. The defendant argues that the AFBCMR’s
decisions are supported by the law and evidence and are
not arbitrary or capricious and not an abuse of discretion.
The parties dispute whether the lawful order to participate
in the SFIP between UTAs placed the plaintiff in IDT
status while he exercised pursuant to that order.
A.
IDT Status
Title 10 of the U.S. Code defines “inactive-duty
training” in two subparagraphs, providing that IDT
refers to both:
(A) duty prescribed for Reserves by the
Secretary concerned under section 206 of title
37 or any other provision of law; and
(B) special additional duties authorized for
Reserves by an authority designated by the
Secretary concerned and performed by them
on a voluntary basis in connection with the
prescribed training or maintenance activities
of the units to which they are assigned.
10 U.S.C. § 101(d)(7)(A) & (B).
31a
Appendix B
In Pipes IV, the Court did not decide whether the
plaintiff had been in IDT status at the time of his stroke
because an issue remained for the AFBCMR to consider.®
6. The plaintiff argues that the Court has already found that
the plaintiff was in IDT status while participating in the SFIP. No
court has made that determination.
The Federal Circuit eliminated one basis for finding the plaintiff
to have been in a non-duty status at the time of his stroke, explaining
that “the argument that [the plaintiff] was in a non-duty status
when ordered to perform his SFIP is no longer a valid rationale for
denying his disability retirement.” Pipes III, 791 F. App’x at 916. The
Federal Circuit held “that, to the extent their analysis turned on [the
plaintiff’s] duty status at the time of his orders, both the AFBCMR
and the Claims Court erred in concluding that [the plaintiff] was
not lawfully ordered to perform the SFIP designed for him.” Id. The
Federal Circuit specifically noted that the plaintiff was “in civilian
status” while performing his SFIP. Id. at 916 n.4. The Court will
not treat that reference by the Federal Circuit as a specific holding
on the issue but notes that this reference appears to undercut the
plaintiff’s assertion that the question of the plaintiff’s status in IDT
has been resolved already in his favor.
When the case came back to this Court from the AFBCMR
after remand following the Federal Circuit’s decision, the Court
vacated the AFBCMR’s decision, finding it inconsistent with the
Federal Circuit’s holding: “Although the Federal Circuit’s opinion
does not expressly answer the question of whether the plaintiff was
in IDT status at the time of his injury, the Board’s conclusion that
he was not is inconsistent with the Federal Circuit’s decision.” Pipes
IV, 150 Fed. Cl. at 78. The plaintiff relies on that sentence from the
introduction of the Court’s 2020 memorandum opinion to buttress
his argument that the issue of the plaintiff’s status has already been
resolved. That sentence, however, was not intended to imply that the
Federal Circuit’s opinion required a finding that the plaintiff was in
IDT status at the time of his stroke. Rather, as the Court went on
to explain in its opinion, the AFBCMR’s decision was inconsistent
32a
Appendix B
The AFBCMR had found that the plaintiff was not
authorized for IDT and never considered whether the
relevant provisions of the AFMAN applied to the IDT
claimed by the plaintiff. Pipes IV, 150 Fed. Cl. at 86-87.
The Court again remanded the case for the AFBCMR to
consider whether the provisions of the AFMAN governing
IDT applied to both subparagraphs of the statutory
definition of IDT, 10 U.S.C. § 101(d)(7). Id.
1.
Air Force Manual
Chapter four of AFMAN 36-8001 establishes
administrative prerequisites for IDT status. The AFMAN
provides that all IDT must “[b]e performed for pay and
points, or points only
AFMAN 36-8001, If 4.2. 1.3.
All IDT must “be approved in advance, in writing, by the
[service] member’s supervisor with an information copy to
the appropriate assigned Program Manager, in advance of
performing any IDT period.” Id. If 4. 2.1.2. “The authorizing
with the Federal Circuit’s decision for a different reason. Id. at 8284. The Air Force Evaluation, on which the AFBCMR relied, had
argued that the lawful order to participate in the SFIP between
UTAs was unenforceable. Id. at 82. The Court found that position to
be inconsistent with the Federal Circuit’s holding—a lawful order
must be enforceable. Id. at 83. That determination also does not
reflect a judicial flnding that the plaintiff was in IDT status at the
time he suffered his stroke. The question of whether the plaintiff
was in IDT status at the time of his injury remains undecided and
is the focus of this decision.
7. “Points are a unit of measurement of tracking a [reserve]
member’s participation. They are also used to calculate the amount
of participation for retirement purposes.” AFMAN 36-8001, If 2.1.
33a
Appendix B
official for IDT is the commander of the assigned unit, the
[individual Mobilization Augmentee] program manager,
supervisor, or a representative designated in writing.” Id.
If 4.4. Although the AFMAN prohibits paid IDT periods
of less than four hours or points-only IDT periods of less
than two hours, the program manager could “designate
activities for which the member may accumulate time
spent (over 1 or more days) until reaching the 4-hour
standard for one point.” Id. TH 4. 9-4.9.1. The AF Form 40A
is the designated form to certify all types of IDT, except
certain training not relevant here. Id. T 4.12.1.
a.
Scope
The plaintiff argues that he was in IDT status for no
pay and no points while exercising for the SFIP between
UTAs. (ECF 100 at 9 (citing AR 3098).) Capt. Pipes
averred in July 2021 that “[t]he 917th Wing Commander
expressly stated in a mass briefing that pay and points
were not authorized, because the time period required
to complete the exercise fell below the threshold period
of both 2 and 4 hours.” (AR 3098.) Because the AFMAN
provides that IDT must be for pay and points or for points
only, AFMAN 36-8001, T 4. 2. 1.3, the plaintiff argues
that the AFMAN’s provisions apply only to the first half
of the statutory definition of IDT, 10 U.S.C. § 101(d)(7)
(A), which cross-references a statute providing for IDT
compensation.
According to the plaintiff, the IDT authorized by
§ 101(d)(7)(B) and 10 U.S.C. § 12315 falls outside the
AFMAN’s scope. He argues that these statutes provide
34a
Appendix B
for IDT even when the reservist is not receiving pay or
points or both. (ECF 100 at 12-13.) First, the second half
of the statutory definition of IDT, § 101(d)(7)(B), provides
that IDT includes “special additional duties authorized
for Reserves by an authority designated by the Secretary
concerned and performed by them on a voluntary basis in
connection with the prescribed training or maintenance
activities of the units to which they are assigned.” 10 U.S.C.
§ 101(d)(7)(B). The plaintiff reads the word “voluntary” in
this portion of the statute to mean without pay. Second, 10
U.S.C. § 12315 provides explicitly for reserve duty “with
... consent, without pay.” Id. § 12315(a)(2). The plaintiff
reads these provisions to authorize IDT without pay or
points or both.
The plaintiff argues that pursuant to these statutory
provisions he need not meet the AFMAN’s requirements
governing IDT because the sui generis order from his
commander to him to participate in the SFIP placed him
in IDT status pursuant to those statutory provisions,
which are outside the scope of the AFMAN’s IDT
provisions covering IDT for pay or points. According to
the plaintiff, because IDT is available when the reservist
is not receiving pay or points or both, the AFMAN’s
IDT-status administrative prerequisites, which expressly
require IDT for pay or points, do not apply to this form of
IDT he was in when he was accruing no pay and no points.
In sum, the plaintiff reads the AFMAN’s provisions
governing IDT to apply only to 10 U.S.C. § 101(d)(7)(A),
the first subparagraph of the statutory definition of IDT.
Although the Court left the issue for the AFBCMR
to consider in the first instance, in its 2020 memorandum
35a
Appendix B
opinion the Court conducted its own interpretative
analysis without making a final determination on the
issue. Pipes IV, 150 Fed. Cl. at 84-86. The Air Force’s
position on remand is consistent with the Court’s analysis
of the statutory text. The AFBCMR reviewed and
agreed with the Air Force Evaluation, which interpreted
the word “voluntary” in § 101(d)(7)(B) to refer to an
exercise of free will, not to IDT without pay.® (AR 21;
see also AR 2593-94.) Accordingly, in its December 2020
decision, the AFBCMR found that “the AFMAN 36-8001
administrative requirements apply to both 10 U.S.C.
[§] 101(d)(7), subparagraphs (A) and (B).” (AR 21.)
The Air Force Evaluation also found that “[t]he
AFMAN implements 10 U.S.C. [§] 101(d)(7) by providing
the procedures for scheduling and authorizing IDTs
and the method for ensuring the proper accounting for
each IDT.” (AR 2594.) The Air Force found that, even
if § 101(d)(7)(B) were meant to apply to IDT without
pay, the AFMAN would still apply because 10 U.S.C.
§ 12315 explicitly provides that “[d]uty without pay shall
be considered for all purposes as if it were duty with
pay.” 10 U.S.C. § 12315(a). (AR 2594-95.) The AFBCMR
agreed with the Air Force’s conclusions on the scope of
the AFMAN. (AR 21.)
8. Each time the AFBCMR considers a request for correction
of military records, an Air Force Judge Advocate submits an
advisory memorandum to the Board. When the AFBCMR
summarizes the memorandum, it refers to it as the Air Force
Evaluation. In this opinion, the Court will refer to the AFRC
Judge Advocate memoranda as “Air Force Evaluations.”
36a
Appendix B
The plaintiff has not demonstrated that the AFBCMR’s
interpretation is contrary to law. The AFBCMR’s
interpretation harmonizes the IDT statutes with the
AFMAN. The Court finds the AFBCMR’s conclusions
regarding the scope of the AFMAN’s coverage on IDT
to be consistent with the relevant statutes.
b.
Authorization
AFMAN 36-8001 is the designated publication
governing “Reserve Personnel Participation and Training
Procedures” issued “by order of the Secretary of the Air
Force.” (AR 2467 (formatting modified).) The Secretary
requires that all IDT “be approved in advance, in writing,
by the [service] member’s supervisor with an information
copy to the appropriate assigned Program Manager, in
advance of performing any IDT period.” AFMAN 368001,114.2.1.2.
Having concluded that the AFMAN’s provisions
governing IDT status applied, the AFBCMR rested its
decision that the plaintiff was not in IDT status on the
AFMAN’s authorization requirement for IDT. “Although
the commander issued the [plaintiff] a lawful order to
perform the SFIP between UTAs, after a review of the
entire case file, to include the [plaintiff’s] rebuttal,” the
AFBCMR found, “no documented evidence of advance
IDT authorization by the commander (or designee)
for exercising.” (AR 21.) The AFBCMR found that the
plaintiff “failed to provide evidence that reflects his
commander ... authorized a no pay/no point IDT status
in order to perform the ordered exercise regime.” {Id.)
37a
Appendix B
Without evidence of advance authorization, the AFBCMR
recommended against correcting the plaintiff’s records,
(/d.)
The plaintiff raises several objections concerning
the AF Form 40A and a supplement to an AFI. The
AFBCMR, however, did not rely on either in making
its determination—this case is all about advance
authorization.
The AFMAN requires reservists to use AF Form
40A to certify all types of IDT, other than exceptions not
relevant here. AFMAN 36-8001, If 4.12.1. The plaintiff
argues that an AF Form 40A is not required for placement
in IDT status. (ECF 100 at 8-9, 14-15.) The May 2021 Air
Force Evaluation agreed that “the Form 40A is the tool
used to memorialize the order and duty performed, but
it is the commander or the commander’s representative,
not the form, that authorizes the IDT.” (AR 2845.) The
AFBCMR’s December 2020 decision noted that the record
contained no completed AF Forms 40A for any of the
relevant SFIP periods. (AR 21.) The AFBCMR, however,
found that, even if an AF Form 40A was not required
for placement in IDT, “the case turns on whether the
[plaintiff] had prior commander authorization to be in
a no pay/no points IDT status.” (Id.) Because the lack of
the AF Form 40A was not determinative for the Board’s
decision, the plaintiff’s argument based on the absence
of the AF Form 40A does not undercut the AFBCMR’s
rejection of the plaintiff’s claim.
The plaintiff also objects to the AFBCMR’s
interpretation of AFRC Supplement 1 to AFI 10-248. The
38a
Appendix B
AFBCMR found that the AFRC’s Supplement prohibited
cumulative AF Form 4OAs? (ECF 100 at 10-12.) The May
2021 Air Force Evaluation opined that the plaintiff’s
command could not have approved a cumulative AF Form
40A, in part, because two paragraphs of Supplement 1
prohibited it. (AR 2845-46.) The AFBCMR found that only
one of those provisions applied to traditional reservists
like the plaintiff; namely, paragraph 6.4.7 applied. (AR 10.)
Paragraph 6.4.7 provides, “‘Members will not be placed on
orders for the sole purpose of participation in the [Healthy
Living Workshop/Fitness Improvement Program].”’ {Id.
(quoting AFRC Supplement 1, AFI 10-248, V 6.4.7).) The
AFBCMR noted, however, that “one could interpret
that the two paragraphs do not apply in the [plaintiff’s]
case, as he was a traditional reservist.” {Id.) Apparently
recognizing some uncertainty over the applicability of the
AFRC Supplement to the AFI, the AFBCMR did not rest
its decision on this AFRC Supplement. It found that “even
if one would find the two paragraphs did not apply to a
traditional reservist, ... a prior authorization for all IDTs
is necessary.” {Id.) Accordingly, the plaintiff’s refutation
of the putative application of the AFRC Supplement to his
case does not undercut the Board’s rejection of his claim.
In its August 2021 decision, the AFBCMR agreed
with Col. Youngner that it has “the authority to correct
an administrative error of the wing regarding the AF
Form 40s to award the [plaintiff] IDT points.” (AR 10.)
9. For specifically designated activities, reserve members
may accumulate time spent in the activity, even over multiple
days, until reaching the four-hour standard for one point. AFMAN
36-8001,114.9.1.
39a
Appendix B
The AFBCMR’s finding that cumulative AF Form 4OAs
were prohibited was not dispositive in determining that
the plaintiff was not in IDT status at the time of his injury,
but the AFBCMR did rely on the prohibition to respond
to Col. Youngner’s objection regarding the AFBCMR’s
authority. Because it found that cumulative AF Form
4OAs were prohibited, the Board found that there was no
administrative error to correct. (Id.) Although the plaintiff
argues that those findings are arbitrary and capricious
(ECF 100 at 14-15), this issue goes to the hypothetical
relief available had the AFBCMR found the plaintiff to
have been in IDT status at the time of his injury. The
AFBCMR discussed the issue solely to respond to the
plaintiff’s submission of Col. Youngner’s report, and that
discussion does not undercut the AFBCMR’s decision
regarding the plaintiff’s duty status.
As previously noted, the Board determined that the
AF Form 40A is not required for authorization of IDT. (AR
2845.) The plaintiff agrees. (ECF 100 at 8-9.) As a result,
each of the plaintiff’s objections regarding the AF Form
40A is ultimately not relevant to the threshold question of
whether the plaintiff had advance authorization for IDT
status, and the AFBCMR did not deny relief on the basis
that the plaintiff had not completed an AF Form 40A.
To show advance authorization, the plaintiff can point
only to the order to participate in the SFIP. The plaintiff
argues that the sui generis lawful order to participate in
the SFIP between UTAs authorized IDT for no pay and
no points. (ECF 100 at 12-14.) The plaintiff has not pointed
to any source of law establishing an IDT status implicitly
40a
Appendix B
authorized in this way, and the plaintiff’s counsel admitted
at oral argument that this situation was not necessarily
contemplated by the relevant statutes and regulations.
(See Oral Arg. at 1:27:25 to 1:27:35.)
Considering other similar orders given to reserve
members for compliance between UTAs, the Court
finds that accepting the plaintiff’s argument would run
counter to typical Air Force operations performed by
reservists. The May 2021 Air Force Evaluation notes
that “[rjeservists are ordered to update medical records,
to retrieve and provide records to their command,
complete medical readiness requirements, finish on-line
training, certify licensing status, complete required
military professional education, complete [Air Force
Specialty Code] qualification requirements, etc. and often
by a certain date as ordered by their commander.” (AR
2845.) These duties extend beyond the scheduled duty
periods but do not place reservists in an IDT status.
(Id.) While the plaintiff’s order was sui generis for the
normally “encouraged” SFIP, orders requiring reservists
to perform other duties between UTAs do not appear
to be unique. To rule for the plaintiff could have broad
implications for other types of inter-UTA orders given
to reservists.
Without pointing to any law supporting its position or
undermining the AFBCMR’s, the plaintiff has failed to
show that the AFBCMR acted improperly.^® The Court is
10. The plaintiff also alleges that the defendant has acted in
bad faith, but he has not presented any evidence supporting such
a claim. (See ECF 100 at 5, 14-15.)
41a
Appendix B
bound by a deferential standard of review, under which
the AFBCMR’s decision must be upheld “unless it is
arbitrary, capricious, contrary to law, or unsupported
by substantial evidence.”” Barnick, 591 F.3d at 1377.
The AFBCMR correctly pointed out that there is no
evidence in the record that the plaintiff had advance
authorization for IDT status, as required by the AFMAN.
The AFBCMR’s reasoning is consistent with the record
and the law, including the previous opinions in this case
of the Federal Circuit and this court.
2.
Colonel Youngner’s Report
To rebut the AFBCMR’s December 2020 decision,
the plaintiff filed with his supplemental brief in this
11. In arguing that the AFBCMR is not entitled to Chevron
deference in this case, the plaintiff appears to conflate Chevron
deference with the standard of review applied to decisions of
military-records corrections boards in this court. (See ECF 100
at 4-6 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).) The defendant
relies not on Chevron deference but on the deferential standard
of review applied by this court to decisions of military-records
corrections boards. (ECF 104 at 9 (“While this case certainly
involves interpretation of statutes and regulations administered
by the military, and deference is therefore due the agency’s
interpretation, the standard of review applied by this Court to
military pay cases goes beyond statutory interpretation and
extends to application of law to facts and factual determinations.”).)
The plaintiff has provided no valid basis for deviating from that
standard. See Sharpe, 935 F.3d at 1358-59 (discussing the standard
of review applied to decisions of military-records corrections
boards); see also Heisig, 719 F.2d at 1156.
42a
Appendix B
court a report written by Col. Youngner. (ECF 79-1.) The
report was written after the December 2020 decision, so
it was not part of the administrative record. The Court
granted the plaintiff’s unopposed motion for remand to
the AFBCMR so that it could review and consider Col.
Youngner’s report. (ECF 82.) The AFBCMR conducted
a further review of all exhibits, Col. Youngner’s report,
the plaintiff’s rebuttal to the advisory opinions received
by the Board, and Col. Youngner’s supplemental report,
but the AFBCMR “remain[ed] unconvinced the evidence
presented demonstrates error or injustice.” (AR 8.)
On remand, the AFBCMR responded to each of Col.
Youngner’s objections to the Board’s December 2020
decision. (AR 8-10.) In responding to Col. Youngner’s
report, the AFBCMR again found that the AFMAN’s
administrative prerequisites for IDT status applied to the
plaintiff, that the lawful order to participate in the SFIP
between UTAs did not automatically place the plaintiff
in IDT status, and that “prior authorization for all IDTs
is necessary.” (AR 9-10.)
The Court has already determined that the AFBCMR’s
conclusions in both its December 2020 and August 2021
decisions regarding the applicability of the AFMAN and
the lack of authorization are consistent with the record
and the law, and that the issues concerning the AF Form
40A are not relevant to those conclusions. Supra, III.A.l.
Aside from the duty-status issue, Col. Youngner also
argued that the AFBCMR “never fully addressed that the
917th Wing Reserve Medical Units neglected to enforce
43a
Appendix B
medical screening standards and neglected to complete
[line-of-duty] requirements after receiving information
of Capt Pipes’ stroke in September 2006.” (ECF 79-1 at
30.) To respond to this objection, the AFBCMR sought an
advisory opinion from the Surgeon General of the AFRC.
The Board’s request for the advisory opinion resulted in
the defendant moving to extend the remand. (ECF 87.) In
opposition, the plaintiff argued that the advisory opinion
was for an “ancillary issue”; the advisory opinion “has
no bearing on whether Plaintiff’s disability retirement
should be approved ....” (ECF 90 at 2.) The Court granted
the extension because the AFBCMR had determined that
it needed the additional advisory opinion to respond to
Col. Youngner’s report, as required by the remand order.
(ECF 93.)
In his supplemental brief, the plaintiff again argues
that the medical-advisory opinion exceeded the scope of
the Court’s remand order. (ECF 100 at 20.) He requests
that the opinion either be stricken from the record or
given no weight. {Id.) The defendant now concedes that
the question of whether medical squadron personnel met
standards of care is an ancillary issue. (ECF 104 at 14.)
The AFBCMR explained that the medical-advisory
opinion was necessary to address Col. Youngner’s
objection to the medical care afforded to the plaintiff,
and “the Court order specifically asked the AFBCMR to
consider the applicant-provided report.” (AR 9.) Although
the AFBCMR noted that all three medical-advisory
opinions in this case have recommended denying the
plaintiff’s request, the medical-advisory opinion does
44a
Appendix B
not appear to be the reason relief has been denied to the
plaintiff by the Board. (See id.) Reiterated throughout
the decision, the reason for denying relief was the lack of
advance authorization for IDT. (AR 9-10.)
The Court finds that, although the AFBCMR followed
the Court’s remand order, the issue addressed by the
Surgeon General’s advisory opinion is ancillary, as both
parties agree. The AFBCMR’s conclusions on this issue
have no bearing on whether the plaintiff qualifies for
disability retirement.^^
B.
Judicial Estoppel
Judicial estoppel ‘“prevents a party from prevailing in
one phase of a case on an argument and then relying on a
contradictory argument to prevail in another phase.’” New
Hampshi/re v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149
L.Ed.2d 968 (2001) (quoting Pegram v. Herdrich, 530 U.S.
211, 227 n.8, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000)). The
Federal Circuit has explained the three factors informing
a court’s judicial-estoppel determination:
12. The plaintiff argues that the most recent medical¬
advisory opinion contradicts the December 2017 medical-advisory
opinion, “which concluded that there was medical negligence on
the part of the 917th medical unit ....” (ECF 100 at 7 (emphasis
omitted).) The December 2017 opinion, however, did not find that
the military medical providers were negligent. (See generally
AR 1970-78.) The Court declines to resolve any dispute over the
medical-advisory opinions because they are ancillary to the issue
presented by the plaintiff’s claim.
45a
Appendix B
The determination of whether a party’s
inconsistent legal positions constitute judicial
estoppel is informed by three factors, which the
Supreme Court did not intend to be exclusive;
(1) whether the “party’s later position [is]
‘clearly inconsistent’ with its earlier position”;
(2) “whether the party has succeeded in
persuading a court to accept that party’s
earlier position, so that judicial acceptance of an
inconsistent position in a later proceeding would
create ‘the perception that either the first or the
second court was misled’”; and (3) “whether the
party seeking to assert an inconsistent position
would derive an unfair advantage or impose an
unfair detriment on the opposing party if not
estopped.”
Trustees in Bankr. ofN. Am. Rubber Thread Co. v. United
States, 593 F.3d 1346, 1354 (Fed. Cir. 2010) (modifications
in original) (quoting New Hampshire, 532 U.S. at 750-51,
121 S.Ct. 1808 (quoting United States v. Hook, 195 F.3d
299, 306 (7th Cir. 1999); Edwards v. Aetna Life Ins. Co.,
690 F.2d 595, 598 (6th Cir. 1982))).
The plaintiff argues that the “[djefendant should be
estopped from continuing its approach of judicial whacka-mole ....” (ECF 100 at 17.) According to the plaintiff, the
“[djefendant is clearly and deliberately changing positions
according to the exigencies of the moment and it has
consistently done so over the course of the last several
years of litigation.” (Id. at 16.) Specifically, the plaintiff
asserts that the AFBCMR first relied on its finding that
46a
Appendix B
the SFIP order was unlawful, but that it now relies on
additional IDT requirements not previously raised. {Id.
at 15-17.)
The defendant has not taken inconsistent positions in
this case. On each remand, the AFBCMR has reconsidered
the plaintiff’s claim pursuant to the court’s remand orders.
In its May 2018 decision, the AFBCMR ended its analysis
when it determined that the plaintiff could not be legally
mandated to participate in the SFIP. (AR 37-38.) After
the Federal Circuit rejected that basis for denying relief,
the AFBCMR in its May 2020 decision determined that
there was no evidence that the plaintiff had authorization
for IDT status between UTAs to exercise, even as a
lawful order. (AR 29-30.) Since the May 2020 decision, the
AFBCMR has consistently asserted that position. {See AR
21 (December 2020 decision), 8-10 (August 2021 decision).)
In December 2020, the AFBCMR considered on remand
the applicability of the AFMAN’s IDT requirements as
directed by the order of this Court. See Pipes IV, 150
Fed. Cl. at 86-87 (explaining the issue remaining for the
AFBCMR to resolve in the first instance).
By following the remand orders in this case, the
defendant has not engaged in “judicial whack-a-mole.” The
Court finds no basis for judicially estopping the AFBCMR
from determining that the plaintiff had to have advance
authorization to be placed in IDT status.
IV. CONCLUSION
The AFBCMR found that the relevant provisions
of the AFMAN apply to all IDT and require advance
47a
Appendix B
authorization for a service member to be in IDT status.
The plaintiff has not presented any evidence that he was
authorized for IDT, except the order to participate in
the SKIP. Applying the AFMAN, the AFBCMR noted
the lack of evidence and found that the SFIP order did
not automatically place the plaintiff in IDT status while
participating in the SFIP. The AFBCMR’s findings
are consistent with the record and are not arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with the law.
Accordingly, the defendant’s motion for judgment on
the administrative record is granted, and the plaintiff’s
motion for judgment on the administrative record is
denied.
The Court will issue an order in accordance with this
memorandum opinion.
48a
APPENDIX C — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE FEDERAL CIRCUIT,
DECIDED NOVEMBER 15, 2019
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
2019-1189
MALCOLM PIPES,
Plaintiff-Appellant,
V.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal
Claims in No. l:15-cv-01163-SGB, Senior Judge Susan
G. Braden.
Begore Prost, Chief Judge, Clevenger and Moore,
Circuit Judges.
Clevenger, Circuit Judge.
Decided: November 15, 2019
Captain Malcolm W. Pipes (“Pipes”) appeals from
the final judgment of the United States Court of Federal
Claims (“Claims Court”) granting Judgment on the
49a
Appendix C
Administrative Record to the United States on his
complaint. Pipes v. United States, 139 Fed. Cl. 538 (2018).
For the reasons set forth below, we reverse the Claims
Court’s final judgment and remand with instructions to
remand the case to the Air Force Board for Correction of
Military Records for further assessment consistent with
this opinion.
Background
I.
Facts
Pipes enlisted in the United States Air Force
(“USAF”) in 1983. He served on active duty for seven
years and in the United States Air Force Reserve for nine
years. In 2004, while Pipes was in the Reserve, the Air
Force established stringent physical fitness standards,
which subjected Reserve members to an annual scored
fitness assessment. All members of the Air Force were
notified that they must be physically fit to support the
Air Force mission. J.A. at 91. Members who failed to
satisfy physical fitness requirements would be subject to
discharge. On October 1, 2004, Pipes was informed by
his Flight Commander that members who score at the
marginal or poor fitness levels would be entered into the
Self-paced Fitness Improvement Program (“SFIP”). On
November 7, 2004, Pipes failed his fitness assessment
which was conducted during a scheduled Unit Training
Assembly (“UTA”). UTA is prescribed by the Secretary
of the Air Force as a form of Inactive Duty Training
(“IDT”). J. A. at 189. During that UTA, Pipes was formally
enrolled in the SFIP and was given a written order from
50a
Appendix C
his Commander to “exercise at least five times per week,”
performing the exercises specified by the SFIP, which
included pushups, crunches, and a 1.5 mile run.
Shortly before that first fitness assessment. Pipes
began receiving elevated blood pressure readings. Though
Pipes continued his engagement in the SFIP, he informed
his Commander that he was having blood pressure issues
and trouble with the running portion of the SFIP. Pipes’
Squadron Commander expressed concern about Pipes’
high blood pressure and was concerned a vigorous fitness
program could lead to injury, stroke, and heart attack.
However, in August 2005, Pipes failed a second fitness
assessment and was once again given orders to exercise
five days per week to address his repeat fitness assessment
failures.
On January 6, 2006, due to his continuously elevated
blood pressure readings. Pipes reported high blood
pressure as a concern on his annual USAF physical
screening. On February 5, 2006, Pipes was evaluated by
Dr. Granger, a USAF medical doctor. Pipes produced
medical records to Dr. Granger from his civilian physician
showing elevated blood pressure as well as a USAF
form completed by his civilian physician stating her
concerns regarding Pipes’ continued participation in the
SFIP. Dr. Granger’s evaluation demonstrated that Pipes
had elevated blood pressure, which ranged between
151/94 when sitting to 146/99 when standing. Further,
Dr. Granger rendered a diagnosis of hypertension and
obesity.^ Unlike Pipes’ civilian physician. Dr. Granger
1. Both Pipes’ Squadron Commander, John Row-lands, and
Logistics Support Squadron Commander, John Snowman, assert
51h
Appendix C
did not relay this health information to Pipes and instead
communicated to him the need for healthy living and for
additional exercise. According to Pipes’ Commander, the
standing policy of his wing unit was to bar any member
observed with untreated hypertension from exercise in a
SFIP. Under the existing command, the medical squadron
was ordered to advise the Commander of any member
who should so be barred. In Pipes’ case, his Commander
concluded that the medical squadron failed to follow the
standing orders. As a result. Pipes was not excused from
the SFIP he had been ordered to perform.
After being cleared for continued participation
in the SFIP by Dr. Granger, Pipes participated in a
third fitness assessment that same day. However, Pipes
became ill during the run portion and was unable to
complete the assessment. Pipes participated in additional
fitness assessments on May 7, 2006 and July 10, 2006,
both of which he also failed. After the July 2006 fitness
assessment. Pipes reported to Major Lara Rowlands, the
unit fitness advisor, that he was running in accordance
with the SFIP, but that he was not seeing any improvement
and that he often felt ill after running. Nevertheless, the
medical squadron again failed to remove Pipes from the
SFIP.
On September 3, 2006, Pipes became ill while running
in accordance with the SFIP and experienced “a headache,
difficulty breathing, dizziness, an impression of being
in their affidavits that “Capt. Pipes was not obese, and his correct
BMI was 28.9 as recorded in his physical fitness assessment
records for 4 Feb 2006.” J.A. at 74; see also J.A. at 58.
52a
Appendix C
overheated, and a general feeling of malaise.” J.A. at 14
(internal citation omitted). These symptoms continued
into the night, requiring Pipes to go to the hospital around
2:00 AM on September 4, 2006. Pipes was diagnosed with
a Cerebrovascular Accident, i.e., astroke.
On September 6, 2006, Pipes contacted his unit
concerning the stroke. On December 5, 2006, without
performing a Line of Duty (“LOD”) determination, the
USAF informed Pipes that “he was not eligible to receive
disability benefits, because his stroke did not occur during
inactive duty training.” J.A. at 14.
On November 26, 2007, Pipes was determined by the
USAF to be medically disqualified for continued military
duty. However, in lieu of an administrative discharge, the
USAF informed Pipes that he was eligible for retirement.
On January 30, 2008, Pipes applied for transfer to the
Retired Reserves in lieu of administrative discharge for
physical disqualification. On September 15, 2008, Pipes
was assigned to the Retired Reserves, and the assignment
was backdated, effective September 4, 2006. In October
2008, Pipes was informed that his retirement from the
USAF was approved. However, Pipes, who was forty¬
seven years old at the time, would not be able to obtain the
approved retirement benefits until he was sixty years old.
On or about October 15, 2010, Pipes obtained a copy
of his USAF medical records. Upon review of these
records. Pipes learned for the first time that during his
February 4, 2006 medical clearance exam, the USAF
Medical Examiner observed that his blood pressure
53a
Appendix C
was abnormally high, rendered a diagnosis of untreated
hypertension, but nonetheless cleared him for continued
participation in the SFIP and his fitness assessments.
On August 10, 2011, Pipes filed an Application For
Correction Of Military Record with the Air Force Board for
Correction of Military Records (“AFBCMR”) requesting a
LOD determination for disability retirement instead of his
already-approved regular retirement. On June 4, 2012, the
USAF Office of the Assistant Secretary for Military and
Reserve Affairs issued a Memorandum for the AFBCMR
recommending denial of the change in records to reflect
Pipes was permanently medically retired. On July 5, 2012,
Pipes responded to the June 4, 2012 Memorandum by
providing supplemental documentation to the AFBCMR.
On February 28, 2013, the AFBCMR denied Pipes’
Application for Correction of Military Records, flnding
that he was not entitled to disability retirement based on
a determination that he did not demonstrate the existence
of a material error or injustice. On April 30, 2013, and
again on July 3, 2013, Pipes requested reconsideration
by the AFBCMR to remedy the decision denying him the
ability to be permanently and medically retired as of 2007.
On August 11, 2014, the USAF Office of the Assistant
Secretary affirmed the AFBCMR’s denial.
IL
Procedural History
On October 9, 2015, Pipes filed a Complaint in the
Claims Court alleging that he was denied the disability
retirement pay and benefits to which he was allegedly
entitled under 10 U.S.C. § 1204.
54a
Appendix C
On May 8, 2017, the Government filed a Motion To
Dismiss, pursuant to RCFC 12(b)(1) and 12(b)(6), or, in
the alternative, for Judgment On The Administrative
Record, pursuant to RCFC 52. On June 8, 2017, Pipes
filed a Cross-Motion For Judgment On The Administrative
Record And Response to the Government’s May 8, 2017
Motion To Dismiss.
On September 29, 2017, the Claims Court issued, under
seal, a Memorandum Opinion And Order denying the
Government’s Motion To Dismiss and the Government’s
Motion For Judgment On The Administrative Record,
and granting Pipes Cross-Motion For Judgment On The
Administrative Record. Pipes v. United States, 134 Fed.
Cl. 380, 389 (2017). The September 29, 2017 Memorandum
Opinion And Order also vacated the February 28, 2013
AFBCMR Decision denying Pipes’ Application For A
Correction Of Military Records and remanded the case
to the AFBCMR for 120 days “to reconsider Plaintiff’s
Application For A Correction Of Military Records in light
of the new evidence presented by the parties,” pursuant
to RCFC 52.2(a), (b)(1)(B)? See id. On October 13, 2017,
the court issued the public version of the September 29,
2017 Memorandum Opinion And Order. See id.
On February 1, 2018, an Air Force Reserve Command/
Judge Advocate (“AFRC/JA”) issued an Advisory Opinion
to the AFBCMR recommending that the AFBCMR deny
Pipes’ requested relief because it believed that Pipes’
2. This new evidence consisted of “supplemental declarations
of relevant witnesses,” as well as Pipes’ “STRs and USAF medical
records” provided by the VA. Pipes, 134 Fed. Cl. at 405.
55h
Appendix C
non-duty status rendered the order by his Commander
to participate in the SFIP illegal.
On May 3, 2018, the AFBCMR issued a reconsideration
decision (“Reconsideration Decision”) concerning Pipes’
Application For Correction Of Military Records. In its
Reconsideration Decision, the AFBCMR noted that the
Medical Advisor found “it plausible that the applicant’s
participation in vigorous training for his Fitness
Assessment, during the 12-hour cycle of time between his
alleged running activity and onset of stroke symptoms,
contributed to the occurrence of a stroke on or about
4 Sep 06.” J.A. at 168-69. The AFBCMR opined that
“adherence to SFIP could ... be legally mandated when
the applicant was in a duty status.” J.A. at 172. However,
the AFBCMR agreed with the AFRC/JA that (1) Pipes
was never lawfully ordered to participate in the SFIP, and
(2) because he was never lawfully ordered to participate
in the SFIP, Pipes was not in an IDT status when he did
so participate. J.A. at 172. Accordingly, the Board denied
Pipes’ requested relief.
On September 11, 2018, the Claims Court, in
agreement with the Reconsideration Decision, issued
a Memorandum Opinion and Final Order on Remand
granting the Government’s Motion for Judgment on the
Administrative Record and denying Pipes’ Cross-Motion
for Judgment on the Administrative Record. The Claims
Court’s decision became final on September 11, 2018. Pipes
timely appealed on November 5, 2018.
56a
Appendix C
Standard of Review
We review a decision of the Claims Court granting
or denying a motion for judgment on the administrative
record de novo, and “apply the same standard of review[.]”
Roth V. United States, 378 F.3d 1371, 1381 (Fed. Cir. 2004);
see also Chambers v. United States, 417 F.3d 1218, 1227
(Fed. Cir. 2005). Thus, this Court “will not disturb the
decision of the corrections board unless it is arbitrary,
capricious, contrary to law, or unsupported by substantial
evidence.” Chambers, 417 F.3d at 1227 (citing Haselrig v.
United States, 333 F.3d 1354, 1355 (Fed. Cir. 2003)).
Discussion
Pipes’ October 9, 2015 Complaint alleged that he was
denied the disability retirement pay and benefits to which
he is and has been entitled under 10 U.S.C. § 1204, which
provides in relevant part:
Upon a determination by the Secretary
concerned that a member of the armed forces
... is unfit to perform the duties of his office,
grade, rank, or rating because of physical
disability, the Secretary may retire the
member with retired pay ...,if the Secretary
also determines that ... the disability ... is a
result of an injury, illness, or disease incurred
or aggravated in line of duty after September
23, 1996 . . . while performing active duty or
inactive-duty trainingli]
10 U.S.C. § 1204(2)(B)(i) (2000) (italics added).
57a
Appendix C
First, it is not disputed that Pipes is unfit to perform
the duties of his office, grade, rank, or rating because
of physical disability. Second, it is not disputed that the
disability plausibly resulted from an injury incurred or
aggravated after September 23, 1996, while performing
his SFIP. Finally, it is not disputed that Pipes’ injuries
did not occur while in active duty. Thus, the only issue in
dispute is whether Pipes’ disability resulted from an injury
incurred or aggravated while performing inactive-duty
training.
Section 101 of Title 10 of the United States Code
defines “inactive-duty training” as:
(A) duty prescribed for Reserves by the
Secretary concerned under section 206 of
title 37 or any other provision of law; and
(B) special additional duties authorized for
Reserves by an authority designated by
the Secretary concerned and performed
by them on a voluntary basis in connection
with the prescribed training or maintenance
activities of the units to which they are
assigned.
10 U.S.C. § 101(d)(7). Pipes argues that his participation
in the SFIP constituted “inactive-duty training” under
10 U.S.C. § 101(d)(7)(B).
As noted above, the AFBCMR agreed with the
AFRC/JA that Pipes’ participation in the SFIP did not
58a
Appendix C
constitute “inactive-duty training” because Pipes was
never lawfully ordered to participate in the SFIP. J.A. at
172. Specifically, the AFBCMR, relying on AFI 10-248
(AFRC Supl_I, May 2004), found that any order by Pipes’
Commander placing him in the SFIP was unlawful due
to Pipes’ supposed “non-duty status.”® As the AFBCMR
noted, however. Pipes’ adherence to the SFIP could have
been legally mandated if Pipes was in a duty status,
making him subject to the Uniform Code of Military
Justice (“UCMJ”). J.A. at 172.
AFI 10-248 (AFRC Supl_I, May 2004) states that for
each Unit Reservist, Individual Mobilization Augmentee,
or Participating Individual Ready Reservist member at a
marginal or poor fitness level will be enrolled in a SFIP
by their commander. See AFI 10-248 (2004 Supp.) at 30.
Members are entered into the SFIP by letter “during
the same UTA/IDT in which the member completed the
fitness assessment.” See id. During that UTA, which is
a form of inactive duty training, members are in a duty
status. Id. at 28. Orders issued to reserve members during
UTAs are valid orders.
According to Pipes’ Commander, “Capt. Pipes failed
a fitness test on 7 Nov. 2004. He was formally enrolled in
the Self-Paced Fitness Program (SFIP) the same day.”
J.A. at 56. Thus, on the record before us, it is clear that:
3. As the AFRC/JA noted in its Advisory Opinion, upon
which the AFBCMR relies, an “order requir[ing] participation
while in a non-duty status” is “illegal” because “reservists are
not subject to the Uniform Code of Military Justice when not in
status.” J.A. at 162.
59a
Appendix C
(1) Pipes went into a duty status during the Nov. 7, 2004
UTA/IDT in which he completed his fitness assessment;
(2) because he was in a duty status, Pipes was subject to
the UCMJ, see 10 U.S.C. § 802(a)(3)(A)(i); and (3) while
he was in a duty status and subject to the UCMJ, Pipes
was ordered, in writing, by his Commander to enroll in a
personalized SFIP requiring him to exercise at least five
times per week. Pipes’ order to engage in the SFIP was
renewed in August 2005, if not in each of the subsequent
UTAs in which he failed his fitness assessments. As the
AFBCMR noted, “adherence to SFIP could ... be legally
mandated when the applicant was in a duty status.” J.A.
at 172. As Pipes was in a duty status, the order from his
Commanding Officer to participate in the SFIP was not
unlawful for that reason.*^
Thus, we hold that, to the extent their analysis turned
on Pipes’ duty status at the time of his orders, both the
AFBCMR and the Claims Court erred in concluding
that Pipes was not lawfully ordered to perform the SFIP
designed for him. The consequence of that error is the
4. As defined by the Air Force, SFIP is intended to be a
“remedial program recommended for traditional Reservists,” such
as Pipes, with participation in SFIP “encouraged” and generally
“not mandated.” AFI 10-248 (AFRC Supl_I, May 2004) at 46;
J. A. at 221. At the time of Pipes’ stroke, the AFI made clear that
Reservists could participate in SFIP “on or off duty.” AFI 10-248
(AFRC Supl_I, May 2004) at 84. But in this case, for reasons
not explained by the Air Force, the apparently sui generis SFIP
designed for Pipes to perform when in civilian status went beyond
recommendation and encouragement, being mandated by lawful
orders issued during times when Pipes was in inactive duty status.
60a
Appendix C
absence of any consideration of Pipes’ request for disability
retirement in the light of the fact that he was ordered to
perform exercises that caused his stroke and hence his
retirement. Thus, the argument that Pipes was in a non¬
duty status when ordered to perform his SFIP is no longer
a valid rationale for denying his disability retirement.
Our holding is limited to a determination that Pipes was
ordered to engage in the SFIP when in a duty status.
We therefore reverse the decision of the Claims Court,
agreeing with the AFBCMR, that Pipes is not entitled
to a disability retirement under 10 U.S.C. § 1204(2)(B)(i)
(2000) due to his non-duty status at the time he was
ordered to participate in the SFIP. The case is remanded
with instructions to remand the case to the AFBCMR for
further assessment of Pipes’ request for correction of his
military records.
REVERSED AND REMANDED
Costs
The parties shall bear their own costs.
61a
APPENDIX D — OPINION OF THE UNITED STATES
COURT OF FEDERAL CLAIMS,
FILED SEPTEMBER 11, 2018
UNITED STATES COURT OF FEDERAL CLAIMS
139 Fed.Cl. 538
MALCOLM PIPES,
Plaintiff,
V.
THE UNITED STATES,
Defendant.
No. 15-1163
Filed: September 11, 2018
MEMORANDUM OPINION AND
FINAL ORDER ON REMAND
BRADEN, Senior Judge.
1.
RELEVANT FACTUAL AND PROCEDURAL
BACKGROUND.!
On October 9, 2015, SSgt Pipes (“Plaintiff”) filed a
Complaint in the United States Court of Federal Claims
1. The relevant facts discussed herein were derived from the
October 9, 2015 Complaint (“Comph”) and the Appendix attached
to the Government’s January 27, 2016 Motion To Dismiss (“AR i, ii,
1-251, AF Form 40A”), and are related in Pipes v. United States,
134 Fed.Cl. 380 (Fed. Cl. 2017).
62a
Appendix D
alleging that he was “denied the disability retirement
pay and benefits to which he is entitled under 10 U.S.C.
§ 1204[.]” ECF No. 1 at 9.
On May 8, 2017, the Government filed a Motion To
Dismiss, pursuant to RCFC 12(b)(1) and 12(b)(6), or, in
the alternative, for Judgment On The Administrative
Record, pursuant to RCFC 52. ECF No. 25. On June 8,
2017, Plaintiff filed a Cross-Motion For Judgment On The
Administrative Record And Response to the Government’s
May 8, 2017 Motion To Dismiss. ECF No. 26.
On September 29, 2017, the court issued, under
seal, a Memorandum Opinion And Order denying the
Government’s May 8, 2017 Motion To Dismiss and the
Government’s May 8, 2017 Motion For Judgment On The
Administrative Record, and granting Plaintiff’s June 8,
2017 Cross-Motion For Judgment On The Administrative
Record. See Pipes, 134 Fed. Cl. at 389. The September
29, 2017 Memorandum Opinion And Order also vacated
a February 28, 2013 Air Force Board For Correction
Of Military Records (“AFBCMR”) Decision denying
Plaintiff’s Application For A Correction Of Military
Records and remanding this case to the AFBCMR for
120 days “to reconsider Plaintiff’s Application For A
Correction Of Military Records in light of the new evidence
presented by the parties,” pursuant to RCFC 52.2(a), (b)
O)(B). See id. On October 13, 2017, the court issued the
public version of the September 29, 2017 Memorandum
Opinion And Order. See id.
On December 22, 2017, the parties filed a Joint
Status Report notifying the court that the new evidence
63a
Appendix D
presented was “under consideration and review by
the Air Force Reserve Command/Judge Advocate
[(“AFRC/JA”)] and the Medical Review Board Medical
Consultant [(“MRBMC”)], both of which are advisors to
the AFBCMR.” ECF No. 35 at 1. The December 22, 2017
Joint Status Report also stated that once the AFRC/JA
and MRBMC “complete their reviews, they will present
their findings and recommendations to the AFBCMR,”
that will “review the recommendations and reconsider
[Plaintiff’s] Application” For A Correction Of Military
Records. ECF No. 35 at 1.
On January 18, 2018, the parties filed a Joint Motion
For Extension Of Remand And Stay requesting a 120-day
extension of the remand and stay, because “the AFRC/
JA and MRBMC have not yet completed their review and
have not yet forwarded their recommendations to the
AFBCMR.” ECF No. 36 at 1-2. On that same day, the court
issued an Order granting, in part, the parties’ January
18, 2018 Joint Motion. ECF No. 37. The January 18, 2018
Order extended the remand and stay to May 7, 2018, “or
until AFBCMR issues the reconsideration decision.” ECF
No. 37 at 1. The January 18, 2018 Order also directed the
parties to file a Joint Status Report “within ten days of
the AFBCMR’s reconsideration decision[,] or on May 7,
2018, whichever occurs first.” ECF No. 37 at 1.
On February 1, 2018, the AFRC/JA issued an
Advisory Opinion to the AFBCMR recommending that
the AFBCMR deny Plaintiff’s requested relief. ECF No.
40 at 18-21.
64a
Appendix D
On May 14, 2018, the parties filed a Joint Status
Report notifying the court that on May 3, 2018, the
AFBCMR issued a reconsideration decision (“May 3,
2018 AFBCMR Reconsideration Decision”) concerning
Plaintiff’s Application For Correction Of Military
Records. ECF No. 38 at 1. The May 14, 2018 Joint Status
Report stated that Plaintiff believes:
(1) that the [c]ourt has properly ruled in favor of
[Plaintiff] on the Administrative Record; (2) that
the Air Force has now found that [Plaintiff] ’s
injury (stroke) was incurred in the line of duty
...; (3) that the Air Force has properly found
that [Plaintiff] was indeed ordered to run and
engage in [Self-paced Fitness Improvement
Program (“SFIP”); and (4) ] that the Air
Force has made a legally indefensible finding
that [Plaintiff] can ignore an acknowledged
order of his Commander ..., when it has been
found that orders from superiors requiring the
performance of military duties are presumed
to be lawful.”
ECF No. 38 at 2.
In contrast, the Government stated that the May
3, 2018 AFBCMR Reconsideration Decision affords a
satisfactory basis for disposition of this case. ECF No.
38 at 2.
On June 12, 2018, the court issued an Order directing
the AFBCMR to file with the Clerk of Court two copies
65a
Appendix D
of the May 3, 2018 AFBCMR Reconsideration Decision,
pursuant to RCFC 52.2(e). On June 22, 2018, the
Government filed two copies of the May 3, 2018 AFBCMR
Reconsideration Decision, including attachments thereto.
ECF No. 40.
On July 3, 2018, Plaintiff filed a Motion To Supplement
The Administrative Record with “DOJ publication.
Employment Rights of the National Guard and Reserve,”
because this handbook was submitted by Plaintiff to the
AFBCMR on remand. ECF No. 41 at 1.
On July 10, 2018, the Government responded that,
“[bjecause this case involves [Plaintiff’s] claim for
a disability retirement pension rather than a claim
of discrimination[,] based on military service, the
Government fails to see how the handbook ... is relevant
to [Plaintiff’s] claims[.]” ECF No. 42 at 1. Nevertheless,
the Government did not oppose Plaintiff’s July 3, 2018
Motion. ECF No. 42 at 1. On that same day. Plaintiff filed
a Notice together with the attached handbook. ECF No.
43. On August 3, 2018, the court issued an Order granting
Plaintiff’s July 3, 2018 Motion.
IL THE AIR FORCE BOARD FOR CORRECTION
OF MILITARY RECORDS’ RECONSIDERATION
DECISION ON REMAND.
On May 3, 2018, the AFBCMR issued a Reconsideration
Decision,2 that “reconsider[ed Plaintiff’s] request to:
2. The May 3, 2018 AFBCMR Reconsideration Decision is
part of the Administrative Record. See 5 Charles Alan Wright
66a
Appendix D
1. Correct [Plaintiff’s] record to reflect
[that Plaintiff] is permanently medically
retired at 60 percent (or more) effective 4
Sep[tember] [20]06;
2. Receive back pay from the above date of
retirement and [for Plaintiff] and his family
[to] be reimbursed for all medical bills
from the effective date of his permanent
retirement; and, by amendment,
3. Be placed on active duty orders and afford
him the opportunity to enter a military
health facility at the Air Force’s expense
for further medical rehabilitative evaluation
and treatment.
ECF No. 40 at 37.
The May 3, 2018 AFBCMR Reconsideration Decision
found:
1. After again reviewing [Plaintiff’s]
reconsideration application, the court
documents, and the evidence provided in
support of [Plaintiff’s] appeal, we remain
unpersuaded [that] the evidence presented
demonstrate [s] the existence of an error
& Arthur R. Miller, Federal Practice and Procedure § 8306 (3d
ed. 2018) (“Formal record[:] The record for review ... includes the
decision of any lower level decisionmakers.”).
67a
Appendix D
or injustice and agree with the previous
Board’s decision. While the Board notes
the Medical Advisor found it plausible
that [Plaintiff’s] participation in vigorous
training for his fitness assessment may
have contributed to the occurrence of his
stroke, the Board further notes in order [for
Plaintiff’s] stroke to be considered in the line
of duty as a traditional Reservist, it must be
determined it was the proximate result of
performing military service. In this regard,
the Board slightly differs from the AFRC/
JA opinion that [Plaintiff] was actually
ordered to participate in ... SFIP; however,
the Board does agree with AFRC/JA that
[Plaintiff] was never lawfully ordered to
participate in SFIP while in civilian status[,]
nor that [Plaintiff] was in an [“inactive-duty
training”] status when he did so participate.
The Board further agrees with the AFRC/
JA opinion that adherence to SFIP could
only be legally mandated when [Plaintiff]
was in a duty status and that SFIP training
is no different than any other daily routine
to maintain fitness between drilling UTAs.
Continued adherence to any fitness routine
while in civilian status is highly encouraged,
but cannot be and is not mandated. The
Board agrees with AFRC/JA and finds the
contention that all reservists should be in
a duty status when they are maintaining
their fitness to meet Air Force fitness
standards not only overbroad, but [also]
misconstrues the statute. Therefore, the
68a
Appendix D
Board determines [Plaintiff’s] disability
processing was done in accordance with the
applicable regulations and instructions at
the time as [Plaintiff] was not in an official
military duty status. While the Board
notes [Plaintiff’s] counsel contends the
[February 1, 2018] AFRC/JA [A]dvisory
[Opinion] should be disregarded[,] since it
referenced the wrong Air Force Instruction
... and [United States Air Force Reserve
Command (“AFRC”) ] Supplement, the
Board reviewed the applicable AFIs and
found no material difference. Additionally[,]
the Board determined [that] the AFRC
supplement referenced was in effect at the
time of [Plaintiff’s] stroke and it clearly
states member participation in a non-duty
status is encouraged. As stated above,
participation in a fitness program could only
be legally mandated when [Plaintiff] was in
a duty status, and at the time of [Plaintiff’s]
stroke, he was not. Therefore, in the absence
of evidence to the contrary, we find no basis
to recommend granting the requested relief.
2. [Plaintiff’s] case is adequately documented
and it has not been shown that a personal
appearance with or without counsel will
materially add to our understanding of the
issues involved. Therefore, the request for
a hearing is not favorably considered.
ECF No. 40 at 42-43.
69a
Appendix D
Therefore, the May 3, 2018 AFBCMR Reconsideration
Decision ruled that “[Plaintiff] be notified [that] the
evidence presented did not demonstrate the existence
of material error or injustice; the application was denied
without a personal appearance; and the application
will only be reconsidered upon the submission of newly
discovered relevant evidence not considered with this
application.” ECF No. 40 at 43.
III. DISCUSSION.^
A.
Standard Of Review For Judgment On The
Administrative Record.
As a matter of law, the review of a military correction
board’s decision is “limited to the administrative record
before the deciding official or officials.” Wyatt v. United
States, 23 Cl. Ct. 314, 319 (Cl. Ct. 1991). The standard
for judgment on the administrative record, pursuant to
RCFC 52.1, is whether the plaintiff has met the burden
of proof to show that the decision was without a rational
basis or not in accordance with the law, after considering
the administrative record. See Bannum, Inc. v. United
States, 404 F.3d 1346, 1357 (Fed. Cir. 2005) (instructing
the court to make “factual findings under RCFC 52.1 from
3. The court’s October 1, 2017 Memorandum Opinion And
Order determined that: Plaintiff has standing to bring the claims
alleged in the October 9, 2015 Complaint; the claims alleged in
the October 9, 2015 Complaint are not barred by the statute of
limitations; and the facts alleged in the October 9, 2015 Complaint
state a claim on which relief can be granted. See Pipes, 134 Fed.
Cl. at 389, 395, 401.
70a
Appendix D
the [limited] record evidence as if it were conducting a trial
on the record”). Where 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.” Id. at 1356. Unlike summary judgment,
genuine issues of material fact do not preclude a judgment
on the administrative record. See id. at 1355-56.
The standard of review is limited to determining
whether the agency decision is “arbitrary, capricious,
unsupported by substantial evidence, or contrary to law.”
Porter v. United States, 163 F.3d 1304, 1312 (Fed. Cir.
1998); see also Hoskins v. United States, 40 Fed.Cl. 259,
271-72 (Fed. Cl. 1998) (“Once a plaintiff has sought relief
from a correction board ... the plaintiff is bound by that
board’s determination unless he can satisfy the difficult
standard of proof that the correction board’s decision was
illegal[,] because it was arbitrary, capricious, or in bad
faith, or unsupported by substantial evidence, or contrary
to law, regulation or mandatory published procedure of a
substantive nature by which plaintiff has been seriously
prejudiced, or money is due.”) (citations omitted). The
court is not authorized to retry the case on the merits.
See Chayra v. United States, 23 Cl. Ct. 172, 178 (Cl. Ct.
1991) (“While the court might disagree with the board’s
decision, it cannot substitute its own judgment for that
of the board if reasonable minds could reach differing
resolutions of the disputed matter.”).
Plaintiff bears the burden of proving any deficiency
by “cogent and clearly convincing evidence.” Wronke v.
71a
Appendix D
Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986) (internal
citations omitted). Therefore, the proffered evidence
must “overcome the strong, but rebuttable, presumption
that the administrators of the military, like other public
officers, discharge their duties correctly, lawfully, and in
good faith.” Porter, 163 F.3d at 1316 (quoting Sanders v.
United States, 594 F.2d 804, 813 (Ct. Cl. 1979)).
B.
Whether The Air Force Board For Correction
Of Military Records’ Reconsideration Decision
Was “Arbitrary, Capricious, Unsupported By
Substantial Evidence, Or Contrary To Law.”
The October 9, 2015 Complaint alleges that Plaintiff
was “denied the disability retirement pay and benefits
to which he is and has been entitled under 10 U.S.C.
§ 1204[.]” Compl. II 43. After considering the new evidence
on remand, the May 3, 2018 AFBCMR Reconsideration
Decision ruled that “the Medical Advisor found it plausible
that [Plaintiff’s] participation in vigorous training for his
fitness assessment may have contributed to the occurrence
of his stroked” ECF No. 40 at 43. Therefore, the only
remaining issue is whether Plaintiff met the retirement
criteria set forth in 10 U.S.C. § 1204.
That Section provides, in relevant part:
Upon a determination by the Secretary
concerned that a member of the armed forces ...
is unfit to perform the duties of his office, grade,
rank, or rating because of physical disability,
the Secretary may retire the member with
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Appendix D
retired pay if the Secretary also determines[,
inter alia,] that ... the disability ... is a result
of an injury, illness, or disease incurred or
aggravated in line of duty after September
23, 1996 ... while performing active duty or
inactive-duty training[.]
10 U.S.C. § 1204(2)(B)(i) (2000) (italics added).
The term “active duty” means “full-time duty in the
active military service of the United States.” 10 U.S.C.
101(d)(1) (2000). The October 9, 2015 Complaint does not
allege that Plaintiff was in an “active duty” status at the
time of the alleged injury. Compl. V 44 (Plaintiff “suffered
a [stroke] ... that rendered him physically disabled, and
that [stroke] was incurred while performing the task
of running as he was ordered to do as part of the SFIP
inactive-duty training.”) (italics added).
Section 101 of Title 10 of the United States Code
defines “inactive-duty training” as:
(A) duty prescribed for Reserves by the
Secretary concerned under section 206 of
title 37^^] or any other provision of law; and
4. The duties prescribed for Reserves by the Secretary of
the Air Force in Section 206 of Title 37 are: (1) “a regular period
of instruction[;]” (2) “the performance of such other equivalent
training, instruction, duty, or appropriate duties, as the Secretary
[of the Air Force] may prescribe;” and (3) “a regular period of
instruction that the member is scheduled to perform but is unable
to perform[,] because of physical disability[.]” 37 U.S.C. § 206
(2000).
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Appendix D
(B) special additional duties authorized for
Reserves by an authority designated by
the Secretary concerned and performed
by them on a voluntary basis in connection
with the prescribed training or maintenance
activities of the units to which they are
assigned.
10 U.S.C. § 101(d)(7) (2000).
The Secretary of the Air Force, however, requires
that, “[a]ll [‘inactive-duty training’] must ... [h]ave advance
authorization from the [service] member’s unit commander
(or designated representative) for unit personnel. For
Individual Reservists[,] the authorizing authority is the
supervisor or program manager ([t]his is done in Block
III of the AF Form 40A).” AFMAN 36-8001 H 4.2.1.1
(Jan. 22, 2004). In addition, “[a]ll [‘inactive-duty training’]
must ... [b]e performed for pay and points, or points only
as an USAFR member without pay from another [United
States] government source (i.e. no dual compensation).”
AFMAN 36-8001 H 4.2.1.3 (Jan. 22, 2004).
In this case, the Administrative Record evidenced that
Plaintiff failed to establish that he was in an “inactive¬
duty training” status while performing SFIP. First,
Plaintiff did not produce a completed AF Form 40A to
demonstrate that he was authorized by his Commander
to perform “inactive-duty training.” Such authorization
is a pre-condition for any activity, including SFIP, to
be considered performed by a service member in an
“inactive-duty training” status. See AFMAN 36-8001
74a
Appendix D
V 4.2. 1.1 (Jan. 22, 2004); see also United States v. Hale,
77 M. J. 598, 604 (A.F. Ct. Crim. App. 2018) (determining
that “no authority existed to extend a reserve member’s
military status while on inactive-duty training beyond
the designated block of time listed on the AF Form
40A”). Second, Plaintiff did not produce evidence that
he performed SFIP for pay and points, or points only.
As a matter of law, all “inactive-duty training” must be
performed for pay and points, or points only. See AFMAN
36-8001 U 4.2.1.3 (Jan. 22, 2004); see also 31 U.S.C. § 1342
(“An officer or employee of the United States Government
... may not accept voluntary services for [the GJovernment
or employ personal services exceeding that authorized by
law except for emergencies involving the safety of human
life or the protection of property. ... As used in this section,
the term ‘emergencies involving the safety of human life
or the protection of property’ does not include ongoing,
regular functions of government the suspension of which
would not imminently threaten the safety of human life
or the protection of property.”).
SFIP is not a “special additional dut[y]” authorized
by the Secretary of the Air Force as a type of “inactive¬
duty training.” See 10 U.S.C. § 101(d)(7)(B). The Secretary
of the Air Force has determined that there are only five
types of “inactive-duty training:” (1) Training Period:
“[a] 4-hour period of training, duty, or instruction[;]” (2)
Unit Training Assembly: “[a] planned period of training,
duty, instruction, or test alert completed by a Reserve
unit[;]” (3) Equivalent Training: “[a] training period
accomplished in place of a scheduled [Unit Training
Assembly] or [Training Period;]” (4) Additional Ground
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Appendix D
Training Period: “[a] flying training period authorized for
an individual in an authorized flying position[;]” and (5)
Readiness Management Periods: training periods “used
to support the ongoing day-to-day operation of the unit
accomplishing unit administration, training preparation,
support activities, and maintenance functions.” AFMAN
36-8001 HV 4.1.1 to 4.1.5 (Jan. 22, 2004). Each of these types
of “inactive-duty training” are performed “in connection
with the prescribed training or maintenance activities of
the units to which they are assigned.” 10 U.S.C. § 101(d)
(7)(B); see also Clark v. United States, 93 Fed.Cl. 756,
773 n.4O (Fed. Cl. 2010) (“like all inactive-duty training,
[Equivalent Training] is a formal, supervised period
of training”) (internal corrections omitted). Cf. United
States V. Wolpert, 75 M.J. 777, 781 (A. Ct. Crim. App.
2016) (determining that a service member was not in an
“inactive-duty training” status after signing out from a
period of Unit Training Assembly).
Instead, SFIP is “[a] remedial intervention program
recommended for traditional Reservists ... identified
with a composite poor fit score.” U.S. AIR FORCE, AIR
FORCE INSTRUCTION 10-248 (May 26, 2004) (“AFI
10-248”) at 46 (italics added). Reservists “are highly
encouraged to take part [in SFIP] on a voluntary basis in
all available intervention programs” so that they can meet
the minimum fitness requirements of the Air Force. See
AFI 10-248 at 46 (“All [service] members of the Air Force
must be physically fit to support the Air Force mission.”);
see also id. (“The [Air Force] uses a composite fitness score
based on aerobic fitness, muscular strength[,] and body
composition to determine overall fitness. Overall fitness
76a
Appendix D
is directly related to health risk, including risk of disease
(morbidity) and death (mortality). A composite score of
70 represents the minimum accepted health, fitness[,]
and readiness levels.”). As the May 3, 2018 AFBCMR
Reconsideration Decision explains, “SFIP training is no
different than any other daily routine to maintain fitness
between drilling [Unit Training Assemblies].” ECF No.
40 at 43.
Therefore, as a matter of law, a service member is not
in an “inactive-duty training” status while performing
SFIP. This is so, because Congress requires that all
service members who perform “inactive-duty training”
are in a ‘'duty status.” 10 U.S.C. § 101(d)(7) (italics added)
(defining “inactive-duty training” as a type of “duty
status”). The Secretary of the Air Force also stated that
all service members who perform SFIP “are in a non¬
duty status, [and] their participation ... is not mandated.”
AFI 10-248 at 46 (italics added). Accordingly, the May 3,
2018 AFBCMR Reconsideration Decision correctly ruled
that, “Continued adherence to any fitness routine while in
civilian[, non-duty] status is highly encouraged, but cannot
be and is not mandated.” ECF No. 40 at 43.
Accordingly, the May 3, 2018 AFBCMR Reconsideration
Decision’s determination that Plaintiff was neither
“lawfully ordered to participate in SFIP while in civilian[,
non-duty] status, nor ... in an [‘inactive-duty training’]
status when he did so participate” is not arbitrary,
capricious, unsupported by substantial evidence, nor
contrary to law.
77a
Appendix D
IV. CONCLUSION.
For these reasons, the Government’s May 8, 2017
Motion For Judgment On The Administrative Record is
granted and Plaintiff’s June 8, 2017 Cross-Motion For
Judgment On The Administrative Record is denied. The
Clerk of Court is directed to enter judgment accordingly.
IT IS SO ORDERED.
78a
APPENDIX E — ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE FEDERAL CIRCUIT,
FILED MARCH 5, 2025
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
2022-1509
MALCOLM PIPES,
Plaintiff-Appellant,
V.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal
Claims in No. l:15-cv-01163-RAH, Judge Richard A.
Hertling.
Before Moore, Chief Judge, Lourie, Clevenger^
Dyk, Prost, Reyna, Taranto, Chen, Hughes, Stoll,
Cunningham, and Stark, Circuit Judges.^
Filed March 5, 2025
1. Circuit Judge Clevenger participated only in the decision
on the petition for panel rehearing.
2. Circuit Judge Newman did not participate.
79a
Appendix E
ON PETITION FOR PANEL REHEARING AND
REHEARING EN BANC
ORDER
Per Curiam.
On January 30, 2025, Malcolm Pipes filed a combined
petition for panel rehearing and rehearing en banc [ECF
No. 55]. The petition was first referred as a petition to the
panel that heard the appeal, and thereafter the petition
was referred to the circuit judges who are in regular
active service.
Upon consideration thereof.
It Is Ordered That:
The petition for panel rehearing is denied.
The petition for rehearing en banc is denied.
March 5, 2025
Date
80a
APPENDIX F — STATUTORY
PROVISIONS INVOLVED
10 U.S.C. §101. Definitions
(a) In General.—The following definitions apply in this
title;
(1) The term “United States”, in a geographic sense,
means the States and the District of Columbia.
[(2) Repealed. Pub. L. 109-163, div. A, title X,
§1057(a)(l), Jan. 6, 2006, 119 Stat. 3440.]
(3) The term “possessions” includes the Virgin
Islands, Guam, American Samoa, and the Guano
Islands, so long as they remain possessions, but does
not include any Commonwealth.
(4) The term “armed forces” means the Army, Navy,
Air Force, Marine Corps, and Coast Guard.
(5) The term “uniformed services” means—
(A) the armed forces;
(B) the commissioned corps of the National
Oceanic and Atmospheric Administration; and
(C) the commissioned corps of the Public Health
Service.
(6) The term “department”, when used with respect
to a military department, means the executive part
81a
Appendix F
of the department and all field headquarters, forces,
reserve components, installations, activities, and
functions under the control or supervision of the
Secretary of the department. When used with respect
to the Department of Defense, such term means the
executive part of the department, including the
executive parts of the military departments, and
all field headquarters, forces, reserve components,
installations, activities, and functions under the
control or supervision of the Secretary of Defense,
including those of the military departments.
(7) The term “executive part of the department”
means the executive part of the Department of
Defense, Department of the Army, Department of
the Navy, or Department of the Air Force, as the
case may be, at the seat of government.
(8) The term “military departments” means the
Department of the Army, the Department of the
Navy, and the Department of the Air Force.
(9) The term “Secretary concerned” means—
(A) the Secretary of the Army, with respect to
matters concerning the Army;
(B) the Secretary of the Navy, with respect to
matters concerning the Navy, the Marine Corps,
and the Coast Guard when it is operating as a
service in the Department of the Navy;
82a
Appendix F
(C) the Secretary of the Air Force, with respect
to matters concerning the Air Force; and
(D) the Secretary of Homeland Security, with
respect to matters concerning the Coast Guard
when it is not operating as a service in the
Department of the Navy.
(10) The term “service acquisition executive”
means the civilian official within a military
department who is designated as the
service acquisition executive for purposes of
regulations and procedures providing for a
service acquisition executive for that military
department.
(11) The term “Defense Agency” means an
organizational entity of the Department of
Defense—
(A) that is established by the Secretary of
Defense under section 191 of this title (or under
the second sentence of section 125(d) of this title
(as in effect before October 1, 1986)) to perform
a supply or service activity common to more
than one military department (other than such
an entity that is designated by the Secretary
as a Department of Defense Field Activity); or
(B) that is designated by the Secretary of
Defense as a Defense Agency.
83a
Appendix F
(12) The term “Department of Defense Field
Activity” means an organizational entity of the
Department of Defense—
(A) that is established by the Secretary of
Defense under section 191 of this title (or under
the se
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