Lippmann v. United States

In the United States Court of Federal Claims
No. 15-192C
Filed June 13, 2016
FOR PUBLICATION

)
MARCUS RANDOLPH LIPPMANN, )
)
Plaintiff, )
RCFC 12(b)(6); RCFC 12(d); RCFC 52.1;
)
RCFC 56; the Military Pay Act, 37 U.S.C.
v. )
§ 204; 10 U.S.C. § 1169; 14 U.S.C. § 357.
)
THE UNITED STATES, )
)
Defendant. )
)

Raymond Jewell Toney, Counsel of Record, Law Office of Raymond J. Toney, Logan,
UT, for plaintiff.

Delisa M. Sánchez, Trial Attorney, Martin F. Hockey, Jr., Assistant Director, Robert E.
Kirschman, Jr., Director, and Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington,
DC; and LCDR Christopher L. Jones, Deputy Office Chief, Office of Claims and Litigation,
United States Coast Guard, for defendant.

MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I. INTRODUCTION

In this military pay action, plaintiff, Marcus Randolph Lippmann, challenges the United
States Coast Guard’s decision to involuntarily retire him from active duty service pursuant to the
recommendation of a Career Retention Screening Panel (“CRSP”). The government has moved
to dismiss plaintiff’s complaint for failure to state a claim upon which relief may be granted,
pursuant to Rule 12(b)(6) of the Rules of the United States Court of Federal Claims
(“RCFC”). In the alternative, the government has moved for judgment upon the administrative
record, pursuant to RCFC 52.1. The Court treats the government’s motion for judgment upon
the administrative record as one for summary judgment pursuant to RCFC 56. Plaintiff has also
moved to supplement the administrative record, pursuant to RCFC 52.1.

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 In addition, plaintiff has moved for summary judgment, pursuant to RCFC 56. The
government has also moved to strike certain documents filed in support of plaintiff’s motion for
summary judgment and for leave to file a sur-reply to plaintiff’s reply in support of his motion
for summary judgment, pursuant to RCFC 7(b).

For the reasons set forth below, the Court DENIES the government’s motion to dismiss;
GRANTS the government’s motion for summary judgment on the issue of whether plaintiff’s
involuntary retirement was lawful under 10 U.S.C. § 1169 and DENIES plaintiff’s cross-motion
for summary judgment on that issue; GRANTS the government’s motion to file a sur-reply to
plaintiff’s reply in support of his motion for summary judgment; DENIES the government’s
motions to strike; DENIES plaintiff’s motion to supplement the administrative record as moot;
and HOLDS in ABEYANCE the parties’ cross-motions for summary judgment on the question
of whether plaintiff is entitled to a hearing before an Enlisted Personnel Board pursuant to 14
U.S.C. § 357.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background1

In this military pay action, plaintiff, Marcus Randolph Lippmann, challenges the
lawfulness of the United States Coast Guard’s (“Coast Guard”) decision to involuntarily retire
him from active duty service pursuant to the recommendation of the Coast Guard’s 2013 Career
Retention Screening Panel (“CRSP”). Specifically, plaintiff alleges that the Coast Guard’s
retirement decision was unlawful because: (1) the Secretary of the Department of Homeland
Security (“Secretary”) did not order a reduction in force for Coast Guard personnel during the
relevant time period, and (2) plaintiff is entitled to the rights and procedures of an Enlisted
Personnel Board (“EPB”) in the absence of a reduction in force order.2 Compl. at ¶¶ 56-68.

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The facts recited in this Memorandum Opinion and Order are taken from plaintiff’s complaint
(“Compl.”), the government’s motion to dismiss or, in the alternative, motion for judgment upon the
administrative record (“Def. Mot.”) and accompanying appendix (“Def. App.”), the documents styled as
the “administrative record” filed by the government (“Def. 2nd App.”), and plaintiff’s statement of
material facts not in genuine dispute (“Pl. Statement”). Except where otherwise noted, the facts recited
herein are undisputed.
2
Since commencing this action, plaintiff has withdrawn his claim that he should not have been
involuntarily retired because he did not meet the criteria for involuntary retirement. Pl. Memo. at 18.
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 Plaintiff has a distinguished record of military service. Plaintiff enlisted in the Coast
Guard on September 11, 1989, and he achieved the rank of Master Chief Petty Officer, Grade E-
9. Id. at ¶¶ 8-9. During his military career, plaintiff received numerous awards and
commendations. Id. at ¶ 12, Ex. 1. The Coast Guard involuntarily retired plaintiff from active
duty service effective September 1, 2014. Id. at ¶ 33.

1. Career Retention Screening Panels

As background, Career Retention Screening Panels are a workforce shaping tool
established by the Coast Guard to address workforce flow and to provide greater opportunity for
advancement of high performing junior enlisted personnel. Compl. at Ex. 4; see also Def. 2nd
App. at 1; Pl. Statement at ¶ 7. In 2010, then-Commandant of the Coast Guard, Admiral R. J.
Papp, Jr., formally requested authorization to conduct a CRSP from former Secretary of
Homeland Security Janet Napolitano. Def. 2nd App. at 1-2. The memorandum authorizing the
2010 CRSP states that the CRSP “is required to address high retention and its adverse impact on
workforce flow.” Id. at 1. The memorandum also states that, “[t]he legal authority to conduct
such a panel derives from Title 14, [United States] Code Section 357(j) and from Title 10,
[United States] Code Section 1169 . . . . Per Title 14 [United States] Code, Section 357(j), the
Secretary of Homeland Security must provide authorization for involuntary retirements without a
Board’s action.” Id.

The Secretary signed the authorization memorandum for the 2010 CRSP on September
21, 2010, and the 2010 CRSP convened on September 27, 2010. Id. at 2, 11. The Coast Guard
has subsequently convened CRSPs in 2011, 2012, 2013, and 2014. Def. App. at 74-75. The
Coast Guard has involuntarily retired 832 enlisted servicemembers through these CRSPs since
2010. Id.; Pl. Statement at ¶ 19.

2. Plaintiff’s Involuntary Retirement And Appeal

Specifically relevant to this dispute, in a memorandum dated December 5, 2012, Admiral
Papp requested authorization from the Secretary to “hold an Active Duty Enlisted Career
Retention Screening Panel (CRSP) in 2013.” Def. 2nd App. at 13; Pl. Statement at ¶ 1. Admiral
Papp stated in the memorandum that the CRSP, if authorized, would be convened pursuant to
authority codified in title 10, United States Code, section 1169 and title 14 United States Code,
section 357(j). Def. 2nd App. at 13. He further stated that, “[y]our endorsement of this memo

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will provide the Coast Guard with the legal authority required to conduct the CRSP during
2013.” Id. at 13-14.

Secretary Napolitano approved this request on December 19, 2012, and the Coast Guard
convened the 2013 CRSP on May 8, 2013. Id. at 14; Compl. at Ex. 6. The 2013 CRSP reviewed
399 candidate records and selected 194 servicemembers for involuntary separation from the
Coast Guard, including plaintiff. Def. 2nd App. at 146.

The 2013 CRSP selected plaintiff for involuntary retirement on August 21, 2013. Compl.
at ¶ 29; Def. 2nd App. at 140. On August 30, 2013, plaintiff appealed the 2013 CRSP’s
decision. Compl. at Ex. 7; see also Def. 2nd App. at 148-50. In that appeal, plaintiff argued that
the CRSP should reconsider its decision, because the members of the 2013 CRSP may not have
considered certain documents that should have been part of plaintiff’s service record. Compl. at
Ex. 7; see also Def. 2nd App. at 148-50. The appeal panel denied plaintiff’s appeal on
September 23, 2013. Def. 2nd App. at 154. On November 18, 2013, plaintiff resubmitted his
appeal. Compl. at ¶ 31, Ex. 8. On November 19, 2013, the Coast Guard informed plaintiff that
his resubmission would not be considered by the appeal panel. Id. at ¶ 32, Ex. 8.

On November 27, 2013, plaintiff acknowledged his retirement date of September 1, 2014.
Id. at ¶ 33, Ex. 9. And so, plaintiff retired from active duty with the Coast Guard effective
September 1, 2014. Id. at ¶ 33.

B. Procedural Background

Plaintiff filed the complaint in this matter on March 2, 2015. See generally Compl. On
June 30, 2015, the government moved to dismiss the complaint for failure to state a claim upon
which relief may be granted, pursuant to RCFC 12(b)(6) or, in the alternative, for judgment upon
the administrative record, pursuant to RCFC 52.1. See generally Def. Mot. On the same date,
the government filed an appendix to its motion to dismiss and a collection of documents entitled
“administrative record.” See generally Def. App.; Def. 2nd App.

On August 28, 2015, plaintiff filed a motion for summary judgment and his opposition to
the government’s motion to dismiss. See generally Pl. Mot. Plaintiff also filed four attachments
to his motion, including his declaration and a statement of material facts not in dispute. See Pl.
Memo.; Pl. App.; Decl. of Marcus Randolph Lippmann; Pl. Statement. On November 4, 2015,

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the government filed a reply in support of its motion to dismiss or, in the alternative, for
judgment upon the administrative record, and a response to plaintiff’s motion for summary
judgment. See generally Def. Rep. On the same date, the government also filed a motion to
strike plaintiff’s declaration and certain other documents that plaintiff included in the appendix
to his motion for summary judgment. See generally Mot. to Strike.

On January 5, 2016, plaintiff filed a response to the government’s motion to strike and a
reply in support of his motion for summary judgment, as well as an appendix containing
additional documents. See generally Pl. Rep.; Pl. 2nd App. Thereafter, on January 15, 2016, the
government filed a reply in support of its motion to strike. See generally Def. Rep. to Mot. to
Strike. On February 17, 2016, the government filed a second motion to strike certain documents
contained in the appendix to plaintiff’s January 5, 2016 reply in support of his motion for
summary judgment and, in the alternative, a motion for leave to file a sur-reply to plaintiff’s
reply in support of his motion for summary judgment. See generally 2nd Mot. to Strike; Sur-
Reply.

On March 4, 2016, plaintiff filed a response to the government’s second motion to strike
or, in the alternative, for leave to file a sur-reply. See generally Pl. Resp. to. 2nd Mot. to Strike.
On March 17, 2016, the government filed a reply in support of its second motion to strike. See
generally Def. Rep. to 2nd Mot. to Strike. Lastly, on February 22, 2016, the government filed a
notice to inform the Court that the United States Congress had enacted an amendment to 14
U.S.C. § 357 on February 8, 2016. Def. Notice, Feb. 22, 2016. These matters having been fully
briefed, the Court decides the pending motions.

III. LEGAL STANDARDS

A. Jurisdiction

The Court’s jurisdiction is defined by the Tucker Act, 28 U.S.C. § 1491, which grants
jurisdiction over claims:

against the United States founded either upon the Constitution, or any Act of
Congress or any regulation of an executive department, or upon any express or
implied contract with the United States, or for liquidated or unliquidated damages
in cases not sounding in tort.

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28 U.S.C. § 1491(a)(1). Because the Tucker Act “does not confer any substantive rights upon a
plaintiff,” a plaintiff also “must establish an independent substantive right to money damages
from the United States–that is, a money-mandating source within a contract, regulation, statute or
Constitutional provision–in order for the case to proceed.” Volk v. United States, 111 Fed. Cl.
313, 323 (2013) (citing Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1306 (Fed. Cir.
2008)). In this regard, the Military Pay Act is a money-mandating statute, and the Court
possesses jurisdiction to consider claims brought pursuant to that act. 37 U.S.C. § 204; Miller v.
United States, 119 Fed. Cl. 717, 729-30 (2015) (“Claims for back pay based on the Military Pay
Act are generally considered to be within the jurisdiction of this court.”) (citing Metz v. United
States, 466 F.3d 991, 998 (Fed. Cir. 2006)).

B. RCFC 12(b)(6) And Justiciability

When deciding a motion to dismiss based upon failure to state a claim upon which relief
may be granted pursuant to RCFC 12(b)(6), this Court must assume that all undisputed facts
alleged in the complaint are true and draw all reasonable inferences in the non-movant’s favor.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); RCFC 12(b)(6). And so, to survive a motion to
dismiss pursuant to RCFC 12(b)(6), a complaint must contain facts sufficient to “state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see
also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When the complaint fails to “state a claim to
relief that is plausible on its face,” the Court must dismiss the complaint. Iqbal, 556 U.S. at 678
(citation omitted). On the other hand, “[w]hen there are well-pleaded factual allegations, a court
should assume their veracity” and determine whether it is plausible, based upon these facts, to
find against defendant. Id. at 679.

A claim must also be justiciable to survive a motion to dismiss pursuant to RCFC
12(b)(6). See Houghtling v. United States, 114 Fed. Cl. 149, 156–57 (2013). In this regard, the
United States Supreme Court has held that justiciability depends upon “whether the duty asserted
can be judicially identified and its breach judicially determined, and whether protection for the
right asserted can be judicially molded.” Baker v. Carr, 369 U.S. 186, 198 (1962); see also
Murphy v. United States, 993 F.2d 871, 872 (Fed. Cir. 1993). And so, a controversy is
justiciable only if “it is ‘one which the courts can finally and effectively decide, under tests and
standards which they can soundly administer within their special field of competence.’” Voge v.

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United States, 844 F.2d 776, 780 (Fed. Cir. 1988) (quoting Greene v. McElroy, 254 F.2d 944,
953 (D.C. Cir. 1958), rev’d on other grounds, 360 U.S. 474 (1959)); see also Antonellis v.
United States, 723 F.3d 1328, 1334 (Fed. Cir. 2013); Adkins v. United States, 68 F.3d 1317, 1322
(Fed. Cir. 1995).

The question of justiciability is frequently at issue when courts review military activities,
and courts have often held that decisions made by the military are “beyond the institutional
competence of courts to review.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002)
(“Because ‘decisions as to the composition, training, equipping, and control of a military force
are essentially professional military judgments,’ the substance of such decisions, like many other
judgments committed to the discretion of government officials, is frequently beyond the
institutional competence of courts to review.”) (quoting Gilligan v. Morgan, 413 U.S. 1, 10
(1973)); Orloff v. Willloughby, 345 U.S. 83, 93-94 (1953) (“[J]udges are not given the task of
running the Army.”); see also Murphy, 993 F.2d at 872; Voge, 844 F.2d at 780. The United
States Court of Appeals for the Federal Circuit has also recognized that military decisions are
justiciable only to the extent that the military’s discretion is limited and Congress has provided
“tests and standards” for the Court to apply. Murphy, 993 F.2d at 873 (“Unless such a test or
standard is provided, courts must abstain.”).

Nonetheless, even when the merits of a military personnel decision are nonjusticiable, the
process by which the decision has been made may be subject to judicial review. Adkins, 68 F.3d
at 1323; Murphy, 993 F.2d at 873. And so, if the military chooses to introduce its own
procedural limits, the Court may review any violations of such limits even if the underlying
decision is nonjusticiable. Murphy, 993 F.2d at 873. In such circumstances, the Court “merely
determines whether the procedures were followed by applying the facts to the statutory or
regulatory standard.” Id.

C. RCFC 56

A grant of summary judgment is appropriate when the pleadings, affidavits and
evidentiary materials filed in a case reveal that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a); see Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Biery v. United States, 753 F.3d 1279, 1286
(Fed. Cir. 2014). A dispute is “genuine” when “the evidence is such that a reasonable jury could

7
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. A fact is “material” if it
could “affect the outcome of the suit under the governing law . . . .” Id. In resolving motions for
summary judgment, the Court will not make credibility determinations and will draw all
inferences ‘“in the light most favorable to the party opposing the motion.”’ Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)). The Court must “determine whether there is a genuine
issue for trial.” Anderson, 477 U.S. at 249; Agosto v. INS, 436 U.S. 748, 756 (1978). And so,
the Court may only grant summary judgment when “the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party.” Matsushita, 475 U.S. at 587.

The above standard also applies when the Court considers cross-motions for summary
judgment. Principal Life Ins. Co. & Subsidiaries v. United States, 116 Fed. Cl. 82, 89 (2014);
see also Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010). And so, when both
parties move for summary judgment, ‘“the court must evaluate each party’s motion on its own
merits, taking care in each instance to draw all reasonable inferences against the party whose
motion is under consideration.”’ Abbey v. United States, 99 Fed. Cl. 430, 436 (2011) (quoting
Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)).

D. RCFC 52.1 And Supplementing The Administrative Record

Unlike a summary judgment motion under RCFC 56, the existence of genuine issues of
material fact do not preclude a grant of judgment upon the administrative record under RCFC
52.1. Tech. Sys., Inc. v. United States, 98 Fed. Cl. 228, 242 (2011). Rather, the Court’s inquiry
is whether, “given all the disputed and undisputed facts, a party has met its burden of proof based
on the evidence in the record.” A&D Fire Prot., Inc. v. United States, 72 Fed. Cl. 126, 131
(2006); see also Bannum v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005).

In reviewing challenges to military corrections board decisions under RCFC 52.1, the
Court is “‘limited to determining whether a decision of the [c]orrection [b]oard is arbitrary,
capricious, unsupported by substantial evidence, or contrary to applicable statutes and
regulations.’” Melendez Camilo v. United States, 642 F.3d 1040, 1044 (Fed. Cir. 2011) (quoting
Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983)); see also Volk, 111 Fed. Cl. at 325
(citing Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992)). “Thus, correction board
decisions ‘may be reviewed for failure to correct plain legal error committed by the military,’

8
including ‘the military’s violation of statute, or regulation, or published mandatory procedure, or
unauthorized act.’” Volk, 111 Fed. Cl. at 325 (quoting Dodson v. United States, 988 F.2d 1199,
1204 (Fed. Cir. 1993)).

In addition, the United States Court of Appeals for the Federal Circuit has held that the
“parties’ ability to supplement the administrative record is limited” and that the administrative
record should only be supplemented “if the existing record is insufficient to permit meaningful
review consistent with the APA.” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379-
81 (Fed. Cir. 2009); see also Camp v. Pitts, 411 U.S. 138, 142 (1973); Caddell Constr. Co., Inc.
v. United States, 111 Fed. Cl. 49, 93 (2013). In Axiom, the United States Court of Appeals for
the Federal Circuit observed that “‘the focal point for judicial review should be the
administrative record already in existence, not some new record made initially in the reviewing
court.’” 564 F.3d at 1379 (quoting Camp, 411 U.S. at 142). This focus is maintained in order to
prevent courts from using new evidence to “convert the arbitrary and capricious standard into
effectively de novo review.” L-3 Commc’ns EOTech, Inc. v. United States, 87 Fed. Cl. 656, 671
(2009) (citations omitted). This Court has interpreted the Federal Circuit’s directive in Axiom to
mean that supplementation of the administrative record is permitted to correct mistakes and fill
gaps, but is not permitted when the documents proffered are unnecessary for an effective review
of the government’s procurement decision. Id. at 672. And so, the Court has precluded
supplementation of the administrative record with declarations that contain “post-hoc contentions
of fact and argument.” Id.

E. 10 U.S.C. § 1169

Title 10, United States Code, section 1169 places limitations upon the military’s authority
to discharge an enlisted member of an armed force from active duty. 10 U.S.C. § 1169.
Specifically, section 1169 provides that:

No regular enlisted member of an armed force may be discharged
before his term of service expires, except—
(1) as prescribed by the Secretary concerned;
(2) by sentence of a general or special court martial; or
(3) as otherwise provided by law.

Id. This Court has long recognized that section 1169 gives the Secretary of each branch of the
armed forces “the authority to discharge enlisted members prior to the expiration of their term of

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service.” Brigante v. United States, 35 Fed. Cl. 526, 530 (1996); see also Canonica v. United
States, 41 Fed. Cl. 516, 524 (1998) (“Courts have held that an enlisted member of the armed
forces does not have a property interest in his employment because he may be discharged ‘as
prescribed by the Secretary’ of his service.”); Vierrether v. United States, 27 Fed. Cl. 357, 361-
62 (1992) (“So long as no statutes or regulations are violated, enlisted personnel in military
service do not have a right to remain in the service until the expiration of their terms of
enlistment.”).

In addition, courts have construed the term “discharge” broadly, to include involuntary
retirement from active duty service, as well as other types of involuntary separations from the
military that fall short of a complete severance from military service. See Gay Veterans Ass’n,
Inc. v. Sec’y of Def., 668 F. Supp. 11, 14 (D.D.C. 1987) (“The generous language of 10 U.S.C.
§ 1169(1), vesting the several military Secretaries with wide authority, is notable. Indeed, the
relevant legislative history confirms succinctly the obvious notion that ‘10 U.S.C. 1169 would
provide ample authority for the issuance of regulations governing all types of discharges.’”)
(quoting S. Rep. No. 90-931, at 10 (1967) (emphasis existing)); cf. Brigante, 35 Fed. Cl. at 530
(holding plaintiff’s argument that the relevant Board “acted improperly when it approved
[plaintiff’s] involuntary separation based on the Navy’s general power to discharge” under a
separate statute was not persuasive) (emphasis supplied); see Vierrether, 27 Fed. Cl. at 361.

F. 14 U.S.C. § 357

Lastly, at the time plaintiff filed the complaint in this matter, title 14, United States Code,
section 357 provided, in pertinent part, that:

(a) Enlisted Personnel Boards shall be convened as the Commandant may prescribe
to review the records of enlisted members who have twenty or more years of active
military service.
(b) Enlisted members who have twenty or more years of active military service may
be considered by the Commandant for involuntary retirement and may be retired
on recommendation of a Board—
(1) because the member’s performance is below the standards the
Commandant prescribes; or
(2) because of professional dereliction.
(c) An enlisted member under review by the Board shall be . . . .

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 (5) allowed to appear before the Board and present witnesses or other
documentation related to the review . . . .
(j) When the Secretary orders a reduction in force, enlisted personnel may be
involuntarily separated from the service without the Board’s action.

14 U.S.C. § 357 (2012) (amended in 2016).3 And so, section 357 allows a Secretary for a branch
of the armed forces to separate a servicemember from active duty service without a hearing
before an Enlisted Personnel Board, if the Secretary orders a reduction in force. Id.

IV. LEGAL ANALYSIS

A. The Court Possesses Jurisdiction To Consider Plaintiff’s Military Pay Claims

As an initial matter, the Court possesses jurisdiction to consider plaintiff’s military pay
claims. It is “well established that claims for back pay stemming from allegedly unlawful
separation from active duty in the armed services are within the jurisdiction of the Court of
Federal Claims under 28 U.S.C. 1491(a).” Spehr v. United States, 51 Fed. Cl. 69, 81 (2001),
aff’d, 49 F. App’x 303 (Fed. Cir. 2002). In addition, the Federal Circuit has held that:

In the context of military discharge cases, the applicable “money-mandating”
statute that is generally invoked is the Military Pay Act, 37 U.S.C. § 204. In order
to bring a military discharge case in the Court of Federal Claims, a plaintiff
therefore must allege that, because of unlawful discharge, the plaintiff is entitled to
money in the form of the pay that the plaintiff would have received but for the
unlawful discharge.

Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003). And so, the Court may
entertain plaintiff’s challenge to the Coast Guard’s decision to involuntarily retire him from
active duty service under the Military Pay Act. Id.; Compl. at ¶ 76.

B. The Court Must Deny Defendant’s Motion to Dismiss

While it is evident that the Court possesses jurisdiction to consider plaintiff’s military pay
claims, plaintiff must also state a plausible claim for relief to pursue this litigation. In this
matter, the government has moved to dismiss plaintiff’s claims for failure to state a claim upon
which relief may be granted for two reasons. Def. Mot. at 12-28. First, the government argues

3
On February 8, 2016, the Congress amended 14 U.S.C. § 357 to strike subsections (a) through (h) and
subsection (j), thereby maintaining only the prior subsection (i), relating to an increase in the retirement
pay for certain servicemembers. See Pub. L. No. 114-120.

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that plaintiff’s challenge to the lawfulness of the 2013 CRSP–which resulted in his involuntary
retirement–should be dismissed, because the claim involves a military decision that is
nonjusticiable. Id. at 13-23. Second, the government seeks dismissal of plaintiff’s claim that he
is entitled to a hearing before an Enlisted Personnel Board, because the complaint fails to
identify a protected liberty or property interest that plaintiff has in an Enlisted Personnel Board
hearing. Id. at 23-28. For the reasons set forth below, the Court disagrees with the government’s
arguments for dismissal of this matter and denies the government’s motion to dismiss.

1. The Court Need Not Convert The Government’s Motion To Dismiss

As a threshold procedural matter, the Court need not convert the government’s motion to
dismiss into one for summary judgment, because the Court may consider the undisputed
documents relied upon by the government to support the motion.

This Court has long recognized that, “when matters outside the pleadings are presented
and not excluded by the Court,” a motion to dismiss under RCFC 12(b)(6) is to be converted to a
motion for summary judgment and “the parties shall be given a reasonable opportunity to present
materials pertinent to the motion.” Akins v. United States, 82 Fed. Cl. 619, 622 (2008); RCFC
12(d); see also Lewis v. United States, 114 Fed. Cl. 682, 685 (2014) (converting a motion to
dismiss or, in the alternative, a motion for judgment upon the administrative record to a motion
for summary judgment due to the absence of an administrative record); see also Williams v.
United States, 100 Fed. Cl. 263, 265 (2011). “Where, however, the Court relies only on
undisputed documents attached as exhibits to the complaint, the Court may proceed without
converting the motion to dismiss to one for summary judgment.” Akins, 82 Fed. Cl. at 622
(citing Am. Contractors Indem. Co. v. United States, 81 Fed. Cl. 682, 688 (2008)); RCFC 10(c)
(“A copy of a written instrument that is an exhibit to a pleading is part of the pleading for all
purposes.”); Frazier v. United States, 67 Fed. Cl. 56, 59 (2005) (“[T]he Court may consider any
written instrument that is attached to the complaint as an exhibit without converting the motion
to dismiss under RCFC 12(b)(6) into a motion for summary judgment.”), aff’d, 186 F. App’x 990
(Fed. Cir. 2006).

In addition, the United States Court of Appeals for the Federal Circuit has held, within
the context of deciding a 12(b)(6) motion, that the Court’s primary focus is the complaint, but the
Court is “‘not limited to the four corners of the complaint.’” Dimare Fresh, Inc. v. United States,

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808 F.3d 1301, 1306 (Fed. Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3429 (U.S. Jan. 19,
2016) (No. 15-944) (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357 (3d ed. 2004)); see also Sebastian v. United States, 185 F.3d 1368, 1374 (Fed.
Cir. 1999). Federal Rule of Evidence 201 also permits the Court to take judicial notice of
adjudicative facts that are “not subject to reasonable dispute,” because the facts “can be
accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201. And so, in deciding the government’s motion to dismiss here,
the Court may consider “‘matters incorporated by reference or integral to the claim, items subject
to judicial notice, [and] matters of public record.’” Dimare Fresh, Inc., 808 F.3d at 1306
(quoting Wright & Miller, supra, § 1357 (brackets existing)).

A review of the documents relied upon by the government to support its motion to
dismiss shows that these documents pertain to undisputed factual matters of public record that
the Court may appropriately consider without converting the government’s motion to one for
summary judgment. In this regard, three of the documents relied upon by the government are
also exhibits to plaintiff’s complaint: a memorandum from Admiral Bob Papp to the Secretary,
dated December 5, 2015, and entitled “Coast Guard Active Duty Enlisted Career Retention
Screening Panel Authorization Request for 2013;” a Commandant Note, dated December 2012,
and entitled “ALCOAST 531/12;” and a Coast Guard memorandum, dated May 8, 2013, and
entitled “Precept Convening the Panel for Screening of Active Duty Enlisted Personnel for the
2013 Retention Screening Panel (CRSP).” Def. Rep. at 4; see Def. 2nd App. at 13-15, 20-23;
Compl. at Exs. 4, 5, 6. It is well established that the Court may consider these three documents
within the context of the government’s motion to dismiss. RCFC 10(c); Frazier, 67 Fed. Cl. at
59.

The Court may also consider the remaining documents relied upon by the government.
The government relies upon several documents contained in the appendix to its motion to
dismiss, namely, the Coast Guard’s Financial Resource Management Manual; Coast Guard
Commandant Admiral Bob Papp’s 2013 State of the Coast Guard Address; the federal budget for
fiscal years 2011, 2012, 2013 and 2014; a Coast Guard Human Resources article; an interview of
Admiral Papp by the Federal News Radio, dated June 30, 2010; an interview of Admiral Papp by
the Navy Times, dated June 12, 2013; and two legal opinions of the Department of Homeland
Security’s Board for Correction of Military Records (“BCMR”). See Def. App. at 1-7, 13, 26-
13
69, 74-75, 78, 80, 84-108. The government also relies upon two additional documents contained
in a separate filing that the government has styled as the “administrative record” for this matter,
namely: a Coast Guard Active Duty Military Workforce Management Situation Report, dated
April 2010, and entitled “ALCOAST 165/100;” and a Coast Guard Active Duty Military
Workforce Management Situation Report, dated June 2010, and entitled “ALCOAST 333/10.”
See Def. 2nd App. at 3-4. All of the above-mentioned documents pertain to matters of public
record and many of these documents are either government publications or news articles that
have been widely disseminated to the public. Dimare Fresh, Inc., 808 F.3d at 1306; see also
Fed. R. Evid. 201. More importantly, plaintiff does not dispute any of the facts contained in
these documents. See generally Pl. Rep.

In addition, the BCMR legal opinions relied upon by the government contain adjudicative
facts that are “not subject to reasonable dispute” and the accuracy of these legal opinions cannot
reasonably be questioned. Fed. R. Evid. 201. Plaintiff also does not dispute the accuracy of the
facts contained in these legal opinions. See generally Pl. Mot.; Pl. Rep. And so, the Court may
take judicial notice of the BCMR legal opinions, and may consider the other documents relied
upon by the government as matters of public record, in resolving the government’s motion to
dismiss. Dimare Fresh, Inc., 808 F.3d at 1306; Fed. R. Evid. 201.

2. Plaintiff States A Plausible Claim For Relief

While the Court need not convert the government’s motion to dismiss, the Court must,
nonetheless, deny the government’s motion because plaintiff states plausible claims for relief.
Twombly, 550 U.S. at 570 (to survive a motion to dismiss pursuant to RCFC 12(b)(6), a
complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.”);
Houghtling, 114 Fed. Cl. at 156–57 (holding that plaintiff’s claims must be justiciable in order to
survive a motion to dismiss for failure to state a claim upon which relief may be granted).

a. Plaintiff States A Justiciable Claim

First, plaintiff’s claim challenging the procedures followed by the Coast Guard in
reaching the decision to involuntarily retire plaintiff is justiciable. In its motion to dismiss, the
government argues that the Court should dismiss plaintiff’s challenge to the Coast Guard’s
involuntary retirement decision, because the merits of military staffing decisions are not subject
to judicial review. Def. Mot. at 12-23; Murphy, 993 F.3d at 873-74 (stating that the merits of a

14
military decision to release a servicemember from active duty are beyond judicial reach). The
government’s argument is, however, misguided because the government mischaracterizes the
nature of plaintiff’s claim in this litigation.

It is well established that the Court may review plaintiff’s challenge to the process that
the Coast Guard followed in reaching the decision to involuntarily retire him from active duty
service. Adkins, 68 F.3d at 1323. In this regard, a plain reading of the complaint shows that,
plaintiff is challenging the lawfulness of the process that led to his involuntary retirement.
Compl. at ¶¶ 56-68. Specifically, plaintiff alleges in the complaint that the Coast Guard failed to
comply with 14 U.S.C. § 357–and, in particular, failed to provide a hearing before the Enlisted
Personnel Board–in reaching its decision to involuntarily retire him from active duty service. Id.
at ¶¶ 56-68.

Here, the allegations in the complaint make clear that plaintiff is disputing the process
followed by the Coast Guard in reaching the decision to involuntarily retire plaintiff, rather than
bringing a challenge to the Coast Guard’s underlying decision. Id; see also Pl. Memo. at 18-22.
As the Federal Circuit recognized in Murphy, this Court “may appropriately decide whether the
military followed procedures because by their nature the procedures limit the military’s
discretion.” Murphy, 993 F.2d at 873; 10 U.S.C. § 1169; 14 U.S.C. § 357. And so, plaintiff’s
challenge to the procedures followed by the Coast Guard in reaching the decision to involuntarily
retire plaintiff is justiciable. Given this, the Court must deny the government’s motion to dismiss
this claim.

b. Plaintiff States A Plausible Claim Of
Entitlement To An Enlisted Personnel Board Hearing

The government’s request that the Court dismiss plaintiff’s claim that he is entitled to a
hearing before an Enlisted Personnel Board is equally without merit. In its motion to dismiss,
the government argues that the Court should dismiss this claim because plaintiff identifies no
constitutional, statutory, or regulatory right to such a hearing in the complaint. Def. Mot. at 23.
But, the government’s argument is belied by a plain reading of the complaint.

In the complaint, plaintiff specifically refers to title 14, United States Code, section 357.
Compl. at ¶¶ 63-68. When plaintiff commenced this litigation, section 357 provided that enlisted
servicemembers with over twenty years of active military service are entitled to a hearing before

15
an Enlisted Personnel Board before being involuntarily retired, unless “the Secretary orders a
reduction in force.”4 Plaintiff alleges in the complaint that he is entitled to such a hearing before
an Enlisted Personnel Board under this statutory provision. Compl. at ¶ 65. And so, when read
in the light most favorable to plaintiff, the complaint clearly states a plausible claim for relief
under section 357. Id.; RCFC 12(b)(6).

C. The Government Is Entitled To Judgment In Its Favor As
A Matter of Law With Respect To Plaintiff’s Section 1169 Claim

Having determined that dismissal of plaintiff’s complaint is not warranted, the Court
turns to plaintiff’s motion for summary judgment and defendant’s motion for judgment upon the
administrative record. Pl. Mot.; Def. Mot.

In this regard, the parties have filed competing dispositive motions on the question of
whether the Coast Guard complied with the Constitution and applicable federal statutes and
regulations in deciding to involuntarily retire plaintiff. Id. Specifically, plaintiff moves for
summary judgment upon the ground that the undisputed material facts in this matter show that
the Secretary did not have the authority to involuntarily retire him under 10 U.S.C § 1169. Pl.
Memo. at 22-24; Pl. Rep. at 11-12. Plaintiff also contends that the undisputed material facts
demonstrate that he is entitled to a hearing before an Enlisted Personnel Board under 14 U.S.C.
§ 357. Pl. Memo. at 24-45; Pl. Rep. at 11-27. The government also seeks judgment upon the

4
At the time plaintiff filed the complaint in this matter, title 14, U.S. Code, section 357 provided, in
pertinent part, that:
(b) Enlisted members who have twenty or more years of active military service may be
considered by the Commandant for involuntary retirement and may be retired on
recommendation of a Board—
(1) because the member’s performance is below the standards the Commandant
prescribes; or
(2) because of professional dereliction.
(c) An enlisted member under review by the Board shall be . . . .
(5) allowed to appear before the Board and present witnesses or other
documentation related to the review. . . . .
(j) When the Secretary orders a reduction in force, enlisted personnel may be involuntarily
separated from the service without the Board’s action.

14 U.S.C. § 357.

16
administrative record upon the ground that section 1169 provides the legal authority for the
Secretary to involuntarily retire plaintiff and that plaintiff has no right to a hearing before an
Enlisted Personnel Board under section 357. Def. Mot. at 29-31. The Court treats the
government’s motion as one for summary judgment pursuant to RCFC 56. And so, the Court has
before it the parties’ cross-motions for summary judgment on these issues.

For the reasons discussed below, the Court grants the government’s motion for summary
judgment on the issue of whether the Secretary had authority under section 1169 to involuntarily
retire plaintiff and denies plaintiff’s cross-motion for summary judgment on this issue. In
addition, the Court holds in abeyance the parties’ cross-motions for summary judgment on the
issue of whether plaintiff is entitled to a hearing before an Enlisted Personnel Board pursuant to
section 357(j).

1. The Court Reviews Plaintiff’s Claims De Novo

As an initial matter, the Court reviews plaintiff’s claims in this matter de novo because
plaintiff asserts his claims for the first time in this litigation. And so, the Court must treat the
government’s motion for judgment upon the administrative record in this matter as a motion for
summary judgment pursuant to RCFC 56. See Lewis, 114 Fed. Cl. at 684, n.1.

A plain reading of the complaint and the documents that the government has filed as the
“administrative record” make clear that the Court is not reviewing a prior decision of the Coast
Guard or a military corrections board in considering this matter. Compl. at ¶¶ 56-68; see
generally Def. 2nd App. Rather, plaintiff brings his claims that the Coast Guard failed to comply
with applicable federal statutes and regulations in reaching the decision to involuntarily retire
plaintiff for the first time in this litigation. Def. 2nd App. at 145, 148-50, 152-54.

This Court has recognized on numerous occasions that the Court reviews such claims de
novo and that no administrative record is appropriate under these circumstances. See Lewis, 114
Fed. Cl. at 684, n.1 (“no administrative record is appropriate” when reviewing a claim for back
pay or separation pay under applicable law, not an agency decision; “[i]nstead the court must
hear [plaintiff’s] claims as a de novo matter.”); Holt v. United States, 64 Fed. Cl. 215, 220 (2005)
(“[T]he record before us is not in the strict sense an ‘administrative record’ which we review
under the Administrative Procedures [sic] Act ‘arbitrary and capricious’ standard.”); see also
Miller v. United States, 120 Fed. Cl. 772, 780-81 (2015); Helferty v. United States, 113 Fed. Cl.

17
308, 322, n.12 (2013), aff’d, 586 F. App’x 586 (Fed. Cir. 2014). And so, the Court reviews
plaintiff’s claims here de novo and treats the government’s motion for judgment upon the
administrative record as one for summary judgment.5 Holt, 64 Fed. Cl at 220 (holding the Court
has before it “a pure Rule 56 motion,” and not a motion for judgment upon the administrative
record pursuant to RCFC 52.1); see also Lewis, 114 Fed. Cl. at 685.

2. Section 1169 Provides Legal Authority For
The Secretary To Involuntarily Retire Plaintiff

The undisputed material facts in this matter show that the Secretary had the authority to
involuntarily retire plaintiff under section 1169. And so, the government is entitled to summary
judgment in its favor on this issue as a matter of law. RCFC 56.

In this regard, a plain reading of section 1169 shows that this statute authorizes the
Secretary to involuntarily retire plaintiff pursuant to the recommendation of the 2013 CRSP.
Specifically, title 10, United States Code, section 1169 provides, in pertinent part, that “[n]o
regular enlisted member of an armed force may be discharged before his term of service
expires,” except as prescribed by the Secretary concerned. 10 U.S.C. § 1169(1).6 And so, this
Court has long recognized that the Secretary for each branch of the armed forces has the
authority under this provision to involuntarily retire a servicemember before his or her term of
service expires. Id.; Canonica, 41 Fed. Cl. at 524; Brigante, 35 Fed. Cl. at 529.

5
The cases relied upon by the government to support its position that the Court should review this matter
under the Administrative Procedure Act’s standard of review are inapplicable to this case. Unlike the
circumstances here, the cases pertain to circumstances where a military corrections board has issued a
decision prior to the commencement of litigation in this Court. See e.g., Walls v. United States, 582 F.3d
1358, 1367 (Fed. Cir. 2009) (“[I]t has become well established that judicial review of decisions of
military corrections boards is conducted under the APA.”); Metz, 466 F.3d at 998 (finding application to a
military corrections board is permissive; “[h]owever, we have also stated that when a service member
does pursue such relief, the Court of Federal Claims reviews the Board’s action under the same standard
as any other agency action”); Pearl v. United States, 111 Fed. Cl. 301, 310-11 (2013) (“review[ing] the
Army’s decision with a deferential eye,” but only after a decision from the Physical Disability Board of
Review).
6
Pursuant to 10 U.S.C. § 101(a)(4), the Coast Guard is an “armed force.” In addition, 10 U.S.C.
§ 101(a)(9)(D) provides that, for purposes of title 10, the term “Secretary concerned” means “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 U.S.C. § 101(a)(9)(D).

18
 The undisputed material facts in this matter also demonstrate that the Coast Guard
complied with section 1169 in reaching the decision to involuntarily retire plaintiff at the
recommendation of the 2013 CRSP. In this regard, it is without dispute that the Secretary
approved the 2013 CRSP in a memorandum dated December 5, 2012. Compl. at Ex. 4; Def.
2nd App. at 13-14. The memorandum states, in pertinent part, that:

The legal authority to conduct a CRSP panel derives from title 10, U.S. Code
Section 1169 and title 14 U.S. Code Section 357(j). Under Section 1169, regular
enlisted members of an armed force may be discharged, before service term
expiration, as the Secretary concerned may prescribe.

Compl. at Ex. 4; Def. 2nd App. at 13-14 (emphasis supplied). And so, these undisputed material
facts make clear that the Coast Guard acted within the legal authority provided by section 1169
to reach its decision to involuntarily retire plaintiff. Id.

Plaintiff, nonetheless, argues in his motion for summary judgment that section 1169 does
not apply to the factual circumstances of this case because he has been “released,” rather than
“discharged,” from the Coast Guard. Pl. Memo. at 23; Pl. Rep. at 14-15. But, plaintiff’s
argument cannot be reconciled with any reasonable interpretation of the language contained in
section 1169 or the facts of this case.

Courts have broadly interpreted the term “discharge” in section 1169 to include
circumstances involving an involuntary retirement from active duty service, as well as many
other types of involuntary separations from the military that fall short of a complete severance
from military service. See Gay Veterans Ass’n, Inc., 668 F. Supp. at 14; see also Brigante, 35
Fed. Cl. at 530; Vierrether, 27 Fed. Cl. at 361. In this case, plaintiff acknowledges that he has
been involuntarily retired from active duty with the Coast Guard. Compl. at ¶ 29. And so, the
Court is simply not persuaded by plaintiff’s argument that his involuntary retirement status does
not fall within the definition of the term “discharge” as contemplated by section 1169.

Because the undisputed material facts demonstrate that the Secretary has the legal
authority to involuntarily retire plaintiff from active duty service with the Coast Guard, the Court

19
grants the government’s motion for summary judgment and denies plaintiff’s cross-motion for
summary judgment on plaintiff’s section 1169 claim.7

D. The Record Before The Court Is Insufficient To Resolve Plaintiff’s Claim
That He Is Entitled To A Hearing Before An Enlisted Personnel Board

The current factual record before the Court is, however, insufficient to resolve plaintiff’s
remaining claim−that plaintiff is entitled to a hearing before an Enlisted Personnel Board. See
Compl. at ¶ 64; Def. Mot. at 19-23. In this regard, plaintiff argues that the Coast Guard’s
decision to involuntarily retire him violates 14 U.S.C. § 357, because the Secretary did not order
a reduction in force prior to convening the 2013 CRSP. Compl. at ¶ 64. The government
counters that the Coast Guard had no obligation to provide plaintiff with a hearing before an
Enlisted Personnel Board, because the Secretary did, in fact, order a reduction in force. Def.
Mot. at 20; 14 U.S.C. § 357(j).

The parties agree that section 357 permits the Secretary to involuntarily retire plaintiff
from active duty service without a hearing before an Enlisted Personnel Board if the Secretary
ordered a reduction in force. Compl. at ¶ 54; Pl. Rep. at 28; Def. Mot at 18. But, a significant
factual dispute exists in this litigation about whether the Secretary actually ordered such a
reduction in force. See 14 U.S.C. § 357(j); Compl. at ¶ 58-66; Def. Mot. at 6, n.6. Given this, a
more complete factual record is needed to inform the Court’s analysis of the parties’ cross-
motions for summary judgment on this issue. And so, the Court must hold the resolution of the
question of whether plaintiff is entitled to a hearing before an Enlisted Personnel Board under
section 357 in abeyance pending additional briefing on this issue.

7
Given the briefing and supplemental filings in this matter to date, both parties appear to have
anticipated the Court’s decision to convert the government’s motion pursuant to RCFC 52.1 to one for
summary judgment. Cf. Easter v. United States, 575 F.3d 1332, 1335-36 (Fed. Cir. 2009); see also Lewis,
114 Fed. Cl. at 684, n.1, 685 (noting that the Court provided notice to the parties that it would treat the
government’s motion to dismiss or, in the alternative, motion for judgment upon the administrative record
as a motion for summary judgment); see Williams v. United States, 100 Fed. Cl. 263, 271 (2011).
Nonetheless, the government has not been prejudiced by the Court’s decision to grant summary judgment
in its favor with respect to plaintiff’s section 1169 claim. Because the Court holds that the Secretary has
the authority to involuntarily retire plaintiff pursuant to 10 U.S.C. § 1169, the Court does not reach the
question of whether the Secretary also has such authority under 14 U.S.C. § 357.

20
 E. The Parties’ Remaining Procedural Motions

Lastly, the parties have filed several procedural motions in this litigation. First, the
government has moved for leave to file a sur-reply to plaintiff’s reply in support of his motion
for summary judgment. See 2nd Mot. to Strike; Sur-Reply. Given the various procedural and
substantive issues raised in the parties’ filings, the Court finds that the resolution of this matter is
aided by its consideration of the matters presented in the government’s sur-reply. See Little v.
United States, 124 Fed. Cl. 256, 263 (2015) (granting plaintiffs leave to file a sur-reply when
they “put forth new and additional reasons on which they base their request for relief, which
either were not clearly asserted previously or were entirely absent in their original complaint.”)
And so, the Court grants the government’s motion to file a sur-reply to plaintiff’s reply in
support of his motion for summary judgment.

The government has also filed two motions to strike certain documents that plaintiff has
filed in support of his motion for summary judgment, upon the ground that these documents are
not a part of the administrative record for this matter. Mot. to Strike; 2nd Mot. to Strike. As
discussed above, plaintiff asserts the claims in this matter for the first time in this litigation.
Because there is no administrative record reflecting a prior agency or board decision on
plaintiff’s claims, plaintiff has appropriately styled his motion as one for summary judgment and
relied upon the documents filed as an appendix to that motion. Holt, 64 Fed. Cl. at 220 (“[T]he
record before us is not in the strict sense an ‘administrative record’ which we review under the
Administrative Procedures [sic] Act ‘arbitrary and capricious’ standard. . . . Instead, we have
before us a pure Rule 56 motion.”); see also Lewis, 114 Fed. Cl. at 685; RCFC 56. And so, the
Court denies the government’s motions to strike.

In addition, plaintiff has moved to supplement the administrative record with the
documents contained in the appendix to his motion for summary judgment. Pl. Rep. at 9-10.
Because plaintiff has appropriately filed these documents as an appendix to his motion for
summary judgment, the Court denies plaintiff’s motion to supplement the administrative record
as moot.

V. CONCLUSION

In sum, when viewed in the light most favorable to plaintiff, the complaint alleges
justiciable and plausible claims challenging the lawfulness of the Coast Guard’s decision to

21
involuntarily retire plaintiff from active duty service. And so, the Court must deny the
government’s motion to dismiss plaintiff’s claims for failure to state a claim upon which relief
may be granted pursuant to RCFC 12(b)(6).

In addition, because plaintiff brings his claims for the first time in this litigation, the
Court reviews plaintiff’s claims de novo and has before it cross-motions for summary judgment
on the question of whether the Coast Guard complied with 10 U.S.C. § 1169 and 14 U.S.C. § 357
in reaching the decision to involuntarily retire plaintiff. In this regard, the undisputed material
facts show that the Secretary has the legal authority to involuntarily retire plaintiff under 10
U.S.C. § 1169. And so, the government is entitled to summary judgment in its favor on this
issue as a matter of law.

The factual record before the Court is, however, insufficient for the Court to resolve the
parties’ cross-motions for summary judgment on plaintiff’s claim that he is entitled to a hearing
before an Enlisted Personnel Board under section 357. And so, the Court holds the parties’
cross-motions for summary judgment on this remaining issue in abeyance pending supplemental
briefing on this issue.

For the foregoing reasons, the Court:

1. DENIES the government’s motion to dismiss;

2. GRANTS the government’s motion for summary judgment on the issue of
whether plaintiff’s involuntary retirement was lawful under 10 U.S.C. § 1169 and
DENIES plaintiff’s cross-motion for summary judgment on that issue;
3. GRANTS the government’s motion to file a sur-reply;

4. DENIES the government’s motions to strike;

5. DENIES plaintiff’s motion to supplement the administrative record as moot; and

6. HOLDS in ABEYANCE the parties’ cross-motions for summary judgment on
the question of whether plaintiff is entitled to a hearing before an Enlisted
Personnel Board pursuant to 14 U.S.C. § 357.

The Court further ORDERS that the parties shall FILE supplemental briefs on the issue
of whether the Secretary complied with 14 U.S.C. § 357, and, in particular, whether the
Secretary ordered a reduction in force pursuant to section 357, in connection with the Coast

22
Guard’s decision to involuntarily retire plaintiff. The schedule for the supplemental briefing
shall be as follows:

1. On or before July 15, 2016, the parties shall FILE their initial supplemental briefs;

2. On or before August 5, 2016, the parties shall FILE their responsive supplemental
briefs; and
3. On or before August 12, 2016, the parties shall FILE any replies.

IT IS SO ORDERED.

s/Lydia Kay Griggsby
LYDIA KAY GRIGGSBY
Judge

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