Waters v. United States

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

MCCLENDON N. WATERS III,
Plaintiff-Appellant

v.

UNITED STATES,
Defendant-Appellee
______________________

2019-1017
______________________

Appeal from the United States Court of Federal Claims
in No. 1:17-cv-00699-EDK, Judge Elaine Kaplan.
______________________

Decided: May 20, 2019
______________________

MCCLENDON N. WATERS, III, Tampa, FL, pro se.

ISAAC B. ROSENBERG, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for defendant-appellee. Also represented by
JOSEPH H. HUNT, TARA K. HOGAN, ROBERT EDWARD
KIRSCHMAN, JR.
______________________

Before REYNA, BRYSON, and STOLL, Circuit Judges.
2 WATERS v. UNITED STATES

PER CURIAM.
Mr. McClendon N. Waters III seeks review of the
United States Court of Federal Claims’ dismissal of his
Tucker Act and Military Pay Act claims. Because we dis-
cern no reversible error in the Court of Federal Claims’ de-
cision, we affirm.
BACKGROUND
I
Prior to his retirement, Mr. Waters served in the
United States Marine Corps for over twenty-five years. Be-
tween 1992 and 2007, Mr. Waters received numerous com-
mendations and awards, ultimately resulting in his
promotion to the rank of lieutenant colonel and command
of the Marine Cryptologic Support Battalion. In 2010, the
Marine Corps received an allegation that Mr. Waters was
engaged in an inappropriate relationship with the wife of a
gunnery sergeant. Mr. Waters was relieved of his com-
mand, and an investigation soon followed.
After reviewing the evidence, including transcripts of
online conversations, the investigating officer concluded
that Mr. Waters had “established and maintained an inap-
propriate relationship of a sexual nature with a woman
other than his wife, and a woman that he knew to be mar-
ried to an enlisted Marine.” S. App’x 43. The investigating
officer recommended that Mr. Waters be charged with a vi-
olation of Article 133 of the Uniform Code of Military Jus-
tice (“UCMJ”), titled “Conduct Unbecoming an Officer and
a Gentleman.” The investigating officer specifically found,
however, that “there [was] not sufficient evidence to prove
adultery as defined in article 134” of the UCMJ.
S. App’x 42.
On October 5, 2010, Mr. Waters’s commanding officer,
Colonel Dimitri Henry, endorsed the investigative report
and recommended approval of the investigating officer’s
findings and recommendations. The report was
WATERS v. UNITED STATES 3

subsequently endorsed by the commander of Marine Corps
Base Quantico, as well as Lieutenant General George J.
Flynn. On October 14, 2010, Lieutenant General Flynn
sent Mr. Waters a notice of intent to impose non-judicial
punishment based on the conduct described in the report.
The notice advised Mr. Waters of his right to demand trial
by court martial in lieu of non-judicial punishment.
Mr. Waters responded by waiving his right to a court mar-
tial, indicating that he intended to admit to the charged
offense, and acknowledging that he had consulted with an
attorney.
On November 15, 2010, Lieutenant General Flynn con-
ducted a hearing on the matter of Mr. Waters’s non-judicial
punishment. Lieutenant General Flynn read the charge
against Mr. Waters as follows:
You are charged with committing the following vi-
olations of the Uniform Code of Military Justice . . .
Article 133, conduct unbecoming an officer and a
gentleman; in that you, a married man on active
duty as the Commanding Officer of Marine Crypto-
logic Support Battalion, did on diverse occasions at
various locations from August 2008 through Sep-
tember 2010 wrongfully engage in an inappropri-
ate relationship with . . . the wife of a Marine Corps
Gunnery Sergeant, that was unduly familiar, per-
sonal, romantic, sexual, and under the circum-
stances with conduct unbecoming an officer and a
gentleman.
S. App’x 50. Mr. Waters responded affirmatively when
asked if he understood the charge, and when asked if he
“had an inappropriate relationship with a wife of a Gun-
nery Sergeant who was [his] subordinate.” S. App’x 50, 52.
Following the hearing, Lieutenant General Flynn im-
posed non-judicial punishment in the form of a punitive let-
ter of reprimand and a two-month forfeiture of pay.
Mr. Waters was advised of his right to appeal or to make a
4 WATERS v. UNITED STATES

statement in response to the punitive letter of reprimand.
Mr. Waters elected not to appeal the imposition of non-ju-
dicial punishment or to make a statement.
On November 24, 2010, Lieutenant General Flynn sub-
mitted a report on Mr. Waters’s non-judicial punishment to
the Commandant of the Marine Corps. Lieutenant Gen-
eral Flynn stated that Mr. Waters’s actions were “deplora-
ble,” opining that “a married Marine officer who engages in
a sexual relationship with an enlisted Marine’s wife is ap-
palling.” S. App’x 60. Lieutenant General Flynn con-
cluded the report by determining that Mr. Waters’s
“knowing and willful disregard for the oath of office should
bar him from continued service as a Marine Officer,” and
indicating that he would convene a Board of Inquiry
(“BOI”) to decide whether Mr. Waters should be separated
from the Marine Corps. S. App’x 60.
That same day, Lieutenant General Flynn sent notice
to Mr. Waters of the BOI. The notice informed Mr. Waters
that as a retirement-eligible officer, the Board could recom-
mend that Mr. Waters be retired, and that he could be re-
tired at a lesser grade. The notice made clear that “the
final decision as to retirement grade rests with the Secre-
tary of the Navy.” S. App’x 63.
Before the BOI was convened, however, Mr. Waters
submitted a request for voluntary retirement. Mr. Waters
stated that he understood that the “request is purely vol-
untary and, once submitted, can only be withdrawn with
the permission of the Secretary of the Navy.” S. App’x 64.
Mr. Waters also stated his understanding that “the Secre-
tary of the Navy has the plenary authority to determine the
last grade in which [he] served satisfactorily, and may de-
termine that [he] retire in a lesser pay grade than currently
held.” S. App’x 65. Mr. Waters admitted to committing the
misconduct for which he was charged and attached a letter
explaining his lapse of judgment and the potentially miti-
gating circumstances surrounding his transgressions.
WATERS v. UNITED STATES 5

Mr. Waters also included nine letters of recommendation
from Marine Corps officers highlighting his stellar record
and requesting that he be permitted to retire as a lieuten-
ant colonel.
On January 3, 2011, Lieutenant General Flynn sub-
mitted his endorsement of Mr. Waters’s voluntary retire-
ment request to the Commandant. The endorsement
stated:
On 3 September 2010, an investigating officer was
appointed to investigate allegations of an inappro-
priate personal relationship between Lieutenant
Colonel Waters, who assumed command of Marine
Cryptologic Support Battalion on 10 July 2009, and
the wife of a gunnery sergeant within his com-
mand. The investigating officer opined that Lieu-
tenant Colonel Waters was involved in an
adulterous relationship from August 2008 to Sep-
tember 2010, and SNO was subsequently relieved
of his command on 3 September 2010.
S. App’x 91. In light of these facts, Lieutenant General
Flynn recommended that Mr. Waters be retired at the
grade of major.
Following Lieutenant General Flynn’s recommenda-
tion, the Commandant recommended to the Secretary that
Mr. Waters be retired at the grade of major. The Comman-
dant highlighted Mr. Waters’s “inappropriate relationship
of a sexual nature with the wife of a Marine gunnery ser-
geant.” S. App’x 92. On April 4, 2011, the Secretary ap-
proved Mr. Waters’s retirement “in the lesser grade of
major.” S. App’x 94.
On May 30, 2011, Mr. Waters messaged the general e-
mail account for the Office of General Counsel of the De-
partment of the Navy, requesting an “emergency delay in
[his] retirement until [he] can formally present grievances”
to the Secretary. S. App’x 107. The e-mail stated that
6 WATERS v. UNITED STATES

Mr. Waters had concerns about “possible prejudicial activ-
ity and unlawful command influence by individuals respon-
sible for handling and disposing of [his] case.”
S. App’x 107. Mr. Waters indicated that he had “originally
sent notice to the IG of the Marine Corps, but [his] under-
standing now [was] that only the separation authority has
the power to take action.” Id. The Navy did not respond to
Mr. Waters’s request and Mr. Waters’s retirement took ef-
fect on June 1, 2011.
II
On May 29, 2014, Mr. Waters submitted a petition to
the Board of Correction of Naval Records (“BCNR”), re-
questing that his retirement rank be changed to lieutenant
colonel and that certain “derogatory language” be removed
from his record. S. App’x 113. Mr. Waters identified as his
grounds for relief “unlawful command influence” and “prej-
udicial activity within the chain of command,” as well as
violations of notice requirements and his right to review
new material added by the government to his record under
the Secretary of the Navy Instructions, SECNAVINST
1920.6C. Id. With respect to his first ground for relief,
Mr. Waters alleged that: (1) the online transcripts used as
evidence in the investigation were obtained illegally by the
gunnery sergeant; and (2) several of the superior officers
involved in the investigation behaved inappropriately and
were influenced by friendship with the gunnery sergeant
or other improper motives. With respect to his second
ground for relief, Mr. Waters alleged that Lieutenant Gen-
eral Flynn’s statements that Mr. Waters “was involved in
an adulterous relationship” with the spouse of a “gunnery
sergeant within his command” in his endorsement to the
Commandant constituted new and aggravating factual ma-
terial that should have been provided to him for review and
comment. See S. App’x 136–37.
The BCNR requested an advisory opinion from the Ma-
rine Corps, and, based in substantial part on the findings
WATERS v. UNITED STATES 7

in the advisory opinion, denied Mr. Waters’s request. The
BCNR emphasized that Mr. Waters had been advised that
formal evidentiary rules do not apply to non-judicial pun-
ishment. The Board also highlighted that Mr. Waters “did
not demand trial by court-martial, admitted to the miscon-
duct detailed in the report of [non-judicial punishment],
and did not appeal the [non-judicial punishment] or the pu-
nitive letter of reprimand.” S. App’x 140. The BCNR
agreed with the Marine Corps that the notice requirement
at issue did not apply to Mr. Waters, and that, in any event,
the allegations of Mr. Waters’s “adulterous relationship”
with a gunnery sergeant “within his command” were not
new material. S. App’x 141.
On May 25, 2017, Mr. Waters filed a complaint in the
Court of Federal Claims seeking review of the BCNR’s de-
cision, as well as compensation under the Tucker Act or
Military Pay Act. On December 1, 2017, Mr. Waters moved
to supplement the administrative record with a variety of
materials related to the investigation, including news re-
ports, photographs, and internal documents. On May 3,
2018, the Government filed a motion to dismiss the claims,
an alternative motion for judgment on the administrative
record, and an opposition to Mr. Waters’s motion to supple-
ment the administrative record.
The Court of Federal Claims issued its decision on
July 31, 2018. First, the Court of Federal Claims dismissed
Mr. Waters’s claims under the Military Pay Act, 37 U.S.C.
§ 204, finding that Mr. Waters was not eligible for compen-
sation under the Act because he had retired voluntarily.
Second, the Court of Federal Claims held that Mr. Waters
had failed to demonstrate that introduction of the re-
quested documents was necessary for judicial resolution of
the action, as his “allegations, even if true, do not support
a finding of bias sufficient to justify supplementation of the
administrative record.” S. App’x 12. Third, the Court of
Federal Claims found that the Marine Corps did not violate
Mr. Waters’s rights under paragraph 2(a) of
8 WATERS v. UNITED STATES

SECNAVINST 1920.6C, as “Lieutenant General Flynn’s
endorsement contained nothing more than an accurate de-
scription of the known facts of the case.” S. App’x 14. Fi-
nally, the Court of Federal Claims held that Mr. Waters
was not subject to the notice requirements under para-
graph 1(c) of SECNAVINST 1920.6C. Accordingly, the
Court of Federal Claims dismissed Mr. Waters’s Military
Pay Act claims, granted judgment on the administrative
record to the Government on Mr. Waters’s Tucker Act
claims, and denied Mr. Waters’s motion to supplement the
administrative record.
Mr. Waters appeals the decision of the Court of Federal
Claims. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3).
DISCUSSION
We review de novo the Court of Federal Claims’ dismis-
sal of a complaint for failure to state a claim. Bank of
Guam v. U.S., 578 F.3d 1318, 1326 (Fed. Cir. 2009). Like-
wise, we “review a decision of the Court of Federal Claims
granting or denying a motion for judgment on the adminis-
trative record without deference.” Chambers v. U.S.,
417 F.3d 1218, 1227 (Fed. Cir. 2005). A decision on a mo-
tion to supplement the administrative record, however, is
reviewed for abuse of discretion. Axiom Res. Mgmt., Inc. v.
United States, 564 F.3d 1374, 1378 (Fed. Cir. 2009).
Mr. Waters initially challenges the Court of Federal
Claims’ decision based on multiple alleged misunderstand-
ings and misrepresentations of the material facts of the
case. In particular, Mr. Waters emphasizes: (1) a misquote
by the court identifying Mr. Waters as an enlisted Marine;
(2) the court’s failure to address in any detail the allegedly
illegal activities of the gunnery sergeant in procuring the
online transcripts; (3) the court’s failure to address the gov-
ernment’s mishandling of complaints of domestic violence
and invasions of privacy by the gunnery sergeant’s spouse;
(4) the court’s dismissal of the evidence pertaining to the
WATERS v. UNITED STATES 9

close relationship between Colonel Henry and the gunnery
sergeant; (5) the court’s dismissal of his complaint to the
Office of General Counsel; and (6) the court’s failure to em-
phasize Mr. Waters’s excellent military record.
With respect to the first issue, a review of the record
demonstrates that the Court of Federal Claims did in fact
wrongly state that Mr. Waters was described “as an en-
listed Marine” in the investigative report. S. App’x 2. In
so stating, the Court of Federal Claims misquoted the
statement in the investigative report that Mr. Waters had
an inappropriate relationship “with a woman . . . that he
knew to be married to an enlisted Marine.” S. App’x 43 (em-
phasis added). Contrary to Mr. Waters’s argument, how-
ever, there is no evidence that the misquote by the Court of
Federal Claims was anything but a simple drafting mis-
take. Indeed, the accurate description of Mr. Waters’s
background, rank and military record in the rest of the
opinion belies any conclusion that the decision was influ-
enced by this mistake. With respect to the sixth issue,
though the Court of Federal Claims does not specifically
highlight Mr. Waters’s commendations and awards, they
were part of the full record before the court, and there is no
indication that they were not appropriately considered.
The issues raised in Mr. Waters’s second through
fourth points are likewise unconvincing. It is unclear how
these allegations relate to Mr. Waters’s right to compensa-
tion under the Military Pay Act or Tucker Act. To the ex-
tent that Mr. Waters argues that the Marine Corps failed
to prosecute the gunnery sergeant for domestic violence or
other criminal activity, these issues are unrelated to this
case. To the extent that Mr. Waters alleges that he was
the victim of unfair prejudice or bias, Mr. Waters has not
adequately demonstrated that this prejudice or bias would
have affected the outcome of the Secretary’s retirement de-
cision. As the Court of Federal Claims points out, Mr. Wa-
ters was advised by counsel, voluntarily admitted to the
charges, and elected not to appeal the imposition of non-
10 WATERS v. UNITED STATES

judicial punishment or make a statement for the record.
Further, the record does not reflect that Colonel Henry,
who Mr. Waters alleges had a close relationship with the
gunnery sergeant, was involved in any decision-making re-
lated to Mr. Waters’s retirement. Absent any plausible al-
legation of undue influence or coercion in his decision to
voluntarily retire, it is unclear how Mr. Waters’s allega-
tions raise a right to relief under the relevant statutes.
Beyond these allegations, however, Mr. Waters identi-
fies as the pivotal element of the case his e-mail to the Of-
fice of the General Counsel requesting an emergency delay
in his retirement. Mr. Waters argues that his decision to
retire became involuntary once he sent the e-mail. As the
Court of Federal Claims pointed out, however, Mr. Waters
was fully aware that a request for voluntary retirement
“can only be withdrawn with the permission of the Secre-
tary of the Navy.” S. App’x 64. While Mr. Waters was un-
derstandably frustrated at the General Counsel’s lack of
response, the decision to accept Mr. Waters’s emergency
delay was entirely at the Secretary’s discretion. Therefore,
his request to the General Counsel was insufficient to ren-
der involuntary Mr. Waters’s voluntary retirement.
Finally, Mr. Waters argues that Lieutenant General
Flynn misused the terms “adultery” and “within his com-
mand” in his endorsement of Mr. Waters’s voluntary retire-
ment request. Repeating the argument he presented
below, Mr. Waters contends that under paragraph 2(c) of
Enclosure 6 to SECNAVINST 1920.6C, he has the right to
review and comment on “[a]ny new factual material” put
on the record pertaining to a voluntary retirement request.
According to Mr. Waters, Lieutenant General Flynn’s
statement that Mr. Waters was being investigated for “an
inappropriate personal relationship . . . [with] the wife of a
gunnery sergeant within his command” constituted new
factual material because there had been no admission that
the gunnery sergeant was within his command. Likewise,
Mr. Waters argues that Lieutenant General Flynn’s
WATERS v. UNITED STATES 11

statement that the investigating officer found that he “was
involved in an adulterous relationship” constituted new
factual material because he had never been formally
charged with adultery, nor had the word “adultery” or
“adulterous” ever been used in the context of the non-judi-
cial punishment proceedings.
We agree with the Court of Federal Claims that these
statements do not constitute new factual material. When
read in context, it is clear that Lieutenant General Flynn
used the phrase “within his command” to describe the gun-
nery sergeant as subordinate to Mr. Waters. Similarly, we
conclude that, when read in context, “adulterous relation-
ship” was used to describe an “inappropriate relationship
of a sexual nature” between two married adults. Both of
these facts are clearly established on the record. This in-
terpretation is further supported by the fact that the Com-
mandant, after reviewing Lieutenant General Flynn’s
recommendation, accurately characterized Mr. Waters’s
conduct as an “inappropriate relationship of a sexual na-
ture with the wife of a Marine gunnery sergeant.”
S. App’x 92. Mr. Waters has therefore failed to establish a
procedural violation that would entitle him to relief.
CONCLUSION
We have reviewed Mr. Waters’s remaining arguments
and find them unpersuasive. We discern no reversible er-
ror in the Court of Federal Claims’ decision. The decision
is affirmed.
AFFIRMED
COSTS
No costs.