NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-5154
DAVID P. BAIRD,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
David P. Baird, of New Orleans, Louisiana, pro se.
Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for defendant-appellee. With
her on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, and Bryant G. Snee, Deputy Director.
Appealed from: United States Court of Federal Claims
Judge Thomas C. Wheeler
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-5154
DAVID P. BAIRD,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
Appeal from the United States Court of Federal Claims in case No. 04-CV-1454,
Judge Thomas C. Wheeler.
___________________________
DECIDED: July 17, 2008
___________________________
Before MICHEL, Chief Judge, RADER, and MOORE, Circuit Judges.
PER CURIAM.
On judgment on the administrative record, the United States Court of
Federal Claims denied Mr. David P. Baird's requests for correction of his military
records, back pay and allowances for his accrued leave under 37 U.S.C.
§ 501(b)(5)(A), and damages under the Federal Fair Credit Reporting Act. Baird
v. United States, 77 Fed. Cl. 114 (2007). Because the trial court correctly
determined that the Coast Guard Board for the Correction of Military Records'
(the Board’s) decision was not arbitrary, capricious, contrary to law, or
unsupported by substantial evidence, this court affirms.
I
Mr. Baird, a Lieutenant Commander in the United States Coast Guard,
first filed an Application for Correction of Military Record with the Board in April
1996. In that application, Mr. Baird claimed that his 1990 transfer from the
Individual Ready Reserve (IRR) to the Inactive Status List (ISL) contravened
Coast Guard procedures, that the Coast Guard had “attempted to effect a
discharge,” and that he should have been eligible for promotion to Commander in
1990. He further sought active duty credit for the time he spent awaiting
resolution of a criminal matter, among other causes of action. The Board found
against Mr. Baird on all of these matters.
Dissatisfied with the Board’s decision, Mr. Baird appealed his case to the
Court of Federal Claims. Baird v. United States, No. 98-387 (Fed. Cl.). That
court granted the United States’ motion for judgment on the administrative
record, and found against Mr. Baird on all counts. Subsequently, Mr. Baird
appealed to this court, which affirmed the Court of Federal Claims’ decision in all
respects. Baird v. United States, 243 F.3d 558 (Table), 2000 WL 1229000 (Fed.
Cir. Aug. 28, 2000). This court also denied Mr. Baird’s petition for rehearing.
Subsequently, Mr. Baird filed a motion in the Court of Federal Claims to set aside
its judgment, but because of the mandate on appeal, the clerk returned the
motion as unfiled.
2007-5154 2
In September 2000, Mr. Baird sought redress from the Coast Guard under
Article 138 of the Uniform Code of Military Justice. Mr. Baird complained that the
Coast Guard had made “significant factual misstatements” concerning his service
record. That request was denied. Mr. Baird requested reconsideration again in
December 2000, but that request was also denied.
In 2002, the Coast Guard informed Mr. Baird that he must repay
$4,492.32 (later reduced to $1,755.22) — the amount of four days’ salary paid for
duties performed in September 2001. The Coast Guard could find no written
orders reflecting that Mr. Baird had been called to active duty during those four
days.
The instant case arises from Mr. Baird’s challenge to this debt. On
September 14, 2004, Mr. Baird filed a complaint in the Court of Federal Claims
alleging that he had worked the days in question and had not been overpaid by
the Coast Guard. Mr. Baird further sought payment for accrued leave and
correction of errors in his military record. The Court of Federal Claims remanded
to the Board for resolution of three stated issues:
(1) Whether and to what extent Mr. Baird’s record of military service
contains errors; (2) whether and to what extent Mr. Baird is entitled
to back pay and allowances as a result of his service in the
absence of written orders between September 22 and September
26, 2001; and (3) whether and to what extent the United States
Coast Guard made overpayments to Mr. Baird in connection with
the period between September 22 and September 26, 2001, and
whether the Coast Guard’s efforts to collect such sums may
resume.
Baird v. United States, 71 Fed. Cl. 536, 543 (2006).
2007-5154 3
In response, the Board ordered the Coast Guard to amend Mr. Baird’s
orders to reflect active duty during the four days in question. The Board also
ordered the Coast Guard to pay Mr. Baird for four days of leave accrued during
his service in support of a 9/11 contingency operation. Finally, the Board ordered
the Coast Guard to correct Mr. Baird’s DD form 214 to show net active service of
3 months and 2 days. The Board denied Mr. Baird’s remaining requests. Final
Decision, BCMR No. 2006-130.
Still unsatisfied, Mr. Baird sought further review from the Court of Federal
Claims under Court of Federal Claims Rule 52.2(b)(4). Granting the
government’s motion for judgment on the administrative record, the trial court
denied Mr. Baird’s remaining claims and awarded judgment in favor of the
government on all counts.
II
This court reviews a decision of the Court of Federal Claims granting or
denying a motion for judgment upon the administrative record without deference.
Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005) (citing
McHenry v. United States, 367 F.3d 1370, 1377 (Fed. Cir. 2004)). Thus, this
court will apply the same statutory review standards as the trial court, but “not
disturb the decision of the corrections board unless it is arbitrary, capricious,
contrary to law, or unsupported by substantial evidence.” Id.
Mr. Baird first challenges the procedural propriety of his removal from the
IRR in November 1990. Mr. Baird claims that he is entitled to four years of back
2007-5154 4
pay and credit because the Coast Guard did not follow proper procedures in
transferring him to the ISL at that time.
Mr. Baird initially raised this complaint to the Board in 1996. The Board
found, and this court confirmed, that Mr. Baird’s transfer had been proper.
Nevertheless, Mr. Baird now reasserts this claim in light of his discovery of Article
14-I of the Reserve Training and Administration Manual (RATMAN), which
outlines the procedures for transferring officers to the inactive status list.
The Board, and subsequently the Court of Federal Claims, declined to
consider the merits of Mr. Baird’s Article 14-I argument, noting that he had failed
to allege RATMAN violations in previous proceedings. The Board’s decision was
correct. The Board’s standard for reconsideration motions, set forth in 33 C.F.R.
§ 52.67(1)-(2) requires reconsideration if:
(1) An applicant presents evidence or information that was not previously
considered by the Board and that could result in a determination other
than that originally made. Such new evidence or information may only be
considered if it could not have been presented to the Board prior to its
original determination if the applicant had exercised reasonable diligence;
or
(2) An applicant presents evidence or information that the Board, or the
Secretary as the case may be, committed legal or factual error in the
original determination that could have resulted in a determination other
than that originally made.
In its decision, the Board found that the RATMAN was accessible and available
for Mr. Baird’s review before the 1996 proceedings. In sum, the RATMAN
“reasonably could have been discovered through due diligence prior to” the 1996
decision. Final Decision, BCMR No. 2006-130 at 21. Therefore Mr. Baird
2007-5154 5
waived his Article 14-I argument when he did not raise it in conjunction with the
1996 proceedings. Accordingly, this court affirms.
Mr. Baird also appeals the Court of Federal Claims’ determination that he
was not entitled to payment for leave accumulated in a previous period of active
duty. Under 37 U.S.C. § 501, Coast Guard members are entitled to payment for
up to 60 days of leave accrued but not used during active duty. 37 U.S.C.
§ 501(b)(3). Notably, this limitation does not apply to “a member of a reserve
component while serving on active duty in support of a contingency operation.”
37 U.S.C. § 501(b)(5)(A).
Mr. Baird admits that he received payment for the 60 days of leave, the
statutory maximum. He contends, however, that he is entitled to an exemption
from this statutory maximum for leave he accrued both prior to and during a
contingency operation. In particular, Mr. Baird claims that he is entitled to
compensation for 17 days of leave accrued during a period of “temporary active
duty” from June 23, 2001 until September 22, 2001, in addition to compensation
for 4 days of leave accrued during a post-9/11 “contingency operation” from
September 23, 2001 until December 27, 2001.
The Court of Federal Claims gave Mr. Baird payment for leave
accumulated during the contingency operation under 37 U.S.C. § 501(b)(5)(A),
but denied payment for leave accrued during temporary active duty. Baird, 77
Fed.Cl. at 118. This court agrees. Section 501(b)(5)(A) unambiguously limits the
exception to the 60 day statutory maximum to leave accrued “while serving on
active duty in support of a contingency operation.” 37 U.S.C. § 501(b)(5)(A)
2007-5154 6
(emphasis supplied). This exception allows military personnel to receive
payment for leave earned during a contingency operation, but not for leave
earned outside of that operation.
Mr. Baird also complains that the Government committed fraud by failing
to disclose to this court in 2000, that Mr. Baird had been discharged with a less
than honorable discharge in 1992. Mr. Baird does not offer any evidence that he
actually was discharged. Rather, he relies on a keystroke entry in the Coast
Guard’s personnel system indicating that he was discharged from the Coast
Guard in May 1992. However, in its 2000 decision, this court ruled that such a
keystroke entry, on its own, was not enough to prove separation from the Coast
Guard. Baird v. United States, 243 F.3d 558 (Table), 2000 WL 1229000, at *2
(Fed. Cir. Aug. 28, 2000). The court stated, “While certain keystrokes indicating
a separation may have been entered into the computer system, there is no
evidence that [Plaintiff] was ever actually discharged from the Reserve.” Id.
This court will not disturb that holding. Indeed, as the Board observed, the
evidence suggests that Mr. Baird was not discharged in 1992. BCMR No. 2006-
130 at 20. The administrative record indicates that Mr. Baird was transferred
from the ISL to the IRR in 1994. If Mr. Baird had been discharged, such a
transfer could not have taken place; rather, the Coast Guard would have had to
recommission Mr. Baird. Accordingly, this court affirms the Board’s decision.
Mr. Baird also contends that the computer codes indicating that he has
been less than honorably discharged continue to remain in the Coast Guard’s
pay system and continue to hamper his efforts to obtain employment and
2007-5154 7
benefits. Mr. Baird did not raise this issue with the Board, however, and
therefore it is not properly before this court on appeal. See Baird, 77 Fed. Cl. at
119. Accordingly, the Court of Federal Claims’ decision on this issue is also
affirmed.
In his final allegation, Mr. Baird asserts that the Coast Guard’s efforts to
collect a debt that was later absolved injured his credit rating and caused him a
loss of credit in violation of the Federal Fair Credit Reporting Act (FCRA). Mr.
Baird did not state such an allegation in his original Complaint, however; nor did
he ever add one to his Complaint via amendment. As such, that cause of action
is untimely and not properly before this court. See Casa de Cambio Comdiv.
S.A., de. C.V. v. United States, 291 F.3d 1356, 1366 (Fed. Cir. 2002) (holding
that a claim not raised in the complaint was waived).
AFFIRMED.
2007-5154 8