In the United States Court of Federal Claims
No. 20-497C
(Filed: August 20, 2020)
FOR PUBLICATION
)
)
FAISAL RAHMAN, )
)
Plaintiff, ) Keywords: Military Pay Act; Motion for
) Voluntary Remand; RCFC 52.2; SKF
v. ) USA Inc. v. United States; Time Limits for
) Remand
THE UNITED STATES, )
)
Defendant. )
Jason E. Perry, Wellington, Florida, for the plaintiff.
William S. Rayel, Civil Division, U.S. Department of Justice, Washington, D.C., with whom
were MAJ Kyle M. Meisner, U.S. Army Legal Services Agency, Fort Belvoir, Virginia, and
Bernard E. Doyle, Office of the Chief Counsel, National Guard Bureau, Arlington, Virginia, for
the defendant.
MEMORANDUM OPINION AND ORDER
HERTLING, Judge
The plaintiff, Faisal Rahman, filed a complaint on April 24, 2020. At this stage of the
case, the Court treats as true all well-pleaded allegations and makes no findings of fact. For
current purposes, only a brief summary of the plaintiff’s claim is necessary.
The plaintiff alleges that he entered on active duty with the United States Army on July
24, 2002 and served on active duty until September 24, 2014, when he was transferred to the
Alabama Army National Guard. (ECF 1 at 2-3.) During his Army service, he alleges he served
four combat deployments to Iraq and Afghanistan. (Id. at 3.)
Mr. Rahman was ordered back to active duty from January 16, 2015 through
November 1, 2015, in order to train for a new Military Occupational Specialty. During this
period of active duty, Mr. Rahman alleges “he was injured during physical training and [ ]
aggravated his existing neck and back injuries.” (Id.) While on active duty in 2015, Mr.
Rahman requested and was recommended by his commanding officer for continuation on active
duty through the Army’s Active Duty Medical Extension program. The plaintiff was not,
however, approved for continuation on active duty and was returned to the Alabama Army
National Guard on November 1, 2015. (Id.) Thereafter, as a member of the Alabama Army
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National Guard, the plaintiff “continued to have problems with his health and the performance of
his military duties and was ultimately referred for a military [Disability Evaluation System]
evaluation and processing.” (Id.)
A Medical Evaluation Board was convened on January 29, 2018 and determined that Mr.
Rahman “failed medical retention standard for four conditions, cervical neck strain, degenerative
arthritis of the cervical spine, lumbosacral strain, and degenerative arthritis of the lumbar
spine.” (Id. at 3-4.) Mr. Rahman was then referred to a Physical Evaluation Board to adjudicate
the impact of these disabilities on his military duties and to produce a rating for the disabilities.
On February 28, 2018, an informal Physical Evaluation Board convened and found the
plaintiff “unfit to perform his military duties” due to his disabilities and rated the plaintiff as 40
percent disabled. The plaintiff accepted these findings. The plaintiff was permanently retired
from the Army on May 10, 2018. (Id. at 4.)
The plaintiff sues under the Tucker Act, 28 U.S.C. § 1491(a)(1), basing his claim on 37
U.S.C. § 204. He seeks the active duty pay that he would have received had he been continued
on active duty from November 1, 2015, until he was medically retired on May 10, 2018.
On July 28, 2020, the defendant moved pursuant to Rule 52.2 of the Rules of the Court of
Federal Claims (“RCFC”) for a voluntary remand of the plaintiff’s claim to the Army Board for
Correction of Military Records (“ABCMR”) and a stay of the case pending the ABCMR’s
decision. (ECF 8.) The defendant argues that a remand is appropriate in this instance because
the defendant “has substantial and legitimate concerns about the correctness of its decision.” (Id.
at 3.) The defendant acknowledges that the applicable regulations, cited by the plaintiff in his
complaint, “raise[ ] substantial and legitimate concerns about the correctness of Mr. Rahman’s
November 2015 release from active duty.” (Id.) Although the defendant does not confess error
in the Army’s treatment of the plaintiff, the defendant’s brief tiptoes up to that line before
stepping back a little in its reply brief. (ECF 12.)
The plaintiff opposes the defendant’s request for a remand to the ABCMR and a stay.
(ECF 10.) He argues that the defendant misconstrues the relief the plaintiff seeks. He argues
further that the defendant has effectively “conceded all the elements . . . necessary to find in
favor of Mr. Rahman.” (Id. at 4.)
“Although there is generally no requirement that a plaintiff exhaust remedies with the
applicable Corrections Board before filing suit in the Claims Court, Heisig v. United States, 719
F.2d 1153, 1155 (Fed. Cir. 1983), these cases normally still proceed through the Corrections
Boards because ‘[t]ypically, if suit is filed just in the [Claims Court], that court will require resort
to a Corrections Board while the matter remains pending in that court.’ Richey v. United States,
322 F.3d 1317, 1322 (Fed. Cir. 2003).” Antonellis v. United States, 723 F.3d 1328, 1333 (Fed.
Cir. 2013).1
1
The plaintiff responds to the defendant’s citation to Antonellis by noting that the case “while mentioning remand as
an issue, dealt with the affirmance of the dismissal of the . . . case based on non-justiciability.” (ECF 10 at 3.) The
plaintiff’s effort to avoid the Federal Circuit’s discussion is unavailing. The plaintiff may be correct that the
2
A key factor underlying this general approach of proceeding through a Corrections Board
is the principle that “civilian courts are reluctant to second-guess decisions of the military
authorities as to promotion, separation, or reassignment.” Id. at 1332. As the Federal Circuit has
stressed, “the military is entitled to great deference in the governance of its affairs.” Dodson v.
United States, 988 F.2d 1199, 1204 (Fed. Cir. 1993). While “routine personnel decisions
regularly made by the services [ ] are variously held nonjusticiable or beyond the competence of
the court to wrestle with[,]” Voge v. United States, 844 F.2d 776, 780 (Fed. Cir. 1988), a judicial
remedy may be available “if a statute, regulation, or instruction specifies the particular procedure
to be followed in personnel actions, and the plaintiff alleges that the required procedure was not
followed.” Antonellis, 723 F.3d at 1332.
The plaintiff here has alleged that the Army has failed to comply with the procedural
requirements that the military has established. There is, therefore, no dispute over the
availability of a judicial remedy in this case. The immediate issue is whether the Army should
be given the opportunity to remedy a potential error in the first instance.
A judge of this court recently had occasion in a Military Pay Act case to elaborate on
motions to remand and analyze the governing Federal Circuit decision in SKF USA, Inc. v.
United States, 254 F.3d 1022 (Fed. Cir. 2001), by canvassing thoroughly the various
circumstances in which the government may move for a voluntary remand.2 Keltner v. United
States, 148 Fed. Cl. 552 (2020). Judge Solomson reviewed the Federal Circuit’s discussion in
SKF of the five positions agencies may take when the courts review their decisions. Only one of
these situations is present in the case at bar, the fourth type identified in SKF: “even if there are
no intervening events [between an agency’s decision and the motion to remand], the agency may
request a remand (without confessing error) in order to reconsider its previous position.” SKF,
254 F.3d at 1029.3 In such cases, the decision to allow a voluntary remand is vested in the
court’s discretion. Id.
discussion regarding remand to an agency is not part of the ratio decidendi of the case, but the Federal Circuit does
not write simply to produce more pages in the Federal Reporter. The Court of Appeals writes to provide guidance to
which this court should accord deference. Litigants before this court need to have substantive grounds for
distinguishing away guidance from the Court of Appeals. Merely noting that the posture on appeal between this
case and a Federal Circuit decision is insufficient. The Court will follow the Federal Circuit’s guidance in
Antonellis.
2
As he attempted to do with Antonellis, the plaintiff attempts to distinguish the Federal Circuit’s seminal decision in
SKF by noting that the case was “a Court of International Trade case with limited applicability to the nature of the
issues raised in this case.” (ECF 10 at 2.) The plaintiff’s distinction is true, as far as it goes, but also irrelevant.
SKF is the governing case, and the Court will abide by its discussion, as elucidated by subsequent cases dealing with
motions to remand.
3
The first two categories “by definition are not voluntary remand situations.” Keltner, 148 Fed. Cl. at 560. These
first two are instances in which 1) “the agency defends its decision on the grounds articulated by the agency,” SKF,
254 F.3d at 1028, and 2) “the agency seeks to defend its decision on grounds not previously articulated by the
agency.” Id. In the third situation, an “agency may seek a remand because of intervening events outside of the
agency’s control, for example, a new legal decision or the passage of new legislation.” Id. “A remand is generally
required if the intervening event may affect the validity of the agency action.” Id. The fifth category identified in
SKF, and the one presented in that case, is when “an agency believes its original decision is incorrect on the merits
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In cases that fall within SKF’s fourth category of agency positions on judicial review of
their decisions, the Federal Circuit instructed that “a remand is usually appropriate” when the
agency’s concern is “substantial and legitimate.” Id. One reason for allowing remand is to
permit the agency “to consider further the governing statute, or the procedures that were
followed.” Id. A motion to remand may, however, “be refused if the agency’s request is
frivolous or in bad faith.” Id. Remand should also be denied if it would either serve no useful
purpose, Martinez v. United States, 333 F.3d 1295, 1310 (Fed. Cir. 2003), cert. denied, 540 U.S.
1177 (2004), or “unduly prejudice the non-moving party.” Utility Solid Waste Activities Grp. v.
Environmental Prot. Agency, 901 F.3d 414, 431 (D.C. Cir. 2018) (citation omitted).
Judge Solomson went on to limn one of the few decisions rejecting a government motion
for a voluntary remand, the D.C. Circuit’s decision in Limnia, Inc. v. United States Dep’t of
Energy, 857 F.3d 379 (D.C. Cir. 2017). Keltner, 148 Fed. Cl. at 562. The D.C. Circuit, in an
opinion by then-Judge Kavanaugh, limited a trial court’s discretion to remand a case voluntarily
to the agency only to those instances in which “the agency intends to take further action with
respect to the original agency decision on review.” Limnia, 857 F.3d at 386 (emphasis in
original).
After his thorough review of the case law, Judge Solomson concluded that when “an
agency requests a remand without confessing error, the agency must express some intent to
reconsider the original agency decision that is the subject of the legal challenge.” Keltner, 148
Fed. Cl. at 563. Only after making such a finding may a court then exercise its discretion to
grant or deny the motion for a voluntary remand. Id.4
The central holding of Keltner, with which this Court agrees, is that government motions
for a voluntary remand to an agency for additional consideration should not simply be granted in
a perfunctory manner. Rather, such motions should be treated as with any other motion affecting
the substantial rights of the plaintiff, by subjecting the government’s position to careful analysis
to ensure that the motion is properly supported and justified.
In the case at bar, the Court finds as an initial matter that the defendant expressly
acknowledges that the plaintiff has “raise[d] substantial and legitimate concerns about the
correctness of” the Army’s decision to release the plaintiff from active duty. (ECF 8 at 3.) The
defendant then admits that while “there may conceivably be a legitimate reason why [the
plaintiff] was not retained on active duty . . . such a reason is not apparent from his complaint or
his Army Military Human Resources Record.” (Id. at 4.) The remand is proposed to permit the
ABCMR to review the Army’s decision in the first instance. The justification proposed by the
and wishes to change the result.” Id. None of these four situations is present in the case at bar, leaving as the only
possibility the fourth category identified in SKF.
4
Ultimately, Judge Solomson denied the motion to remand in Keltner after he determined that the government had
sought “a remand simply so the [Air Force Board for Correction of Military Records] can bolster its reasons for
denying [the plaintiff’s] claim,” and thereby improve the prospect that the court would uphold the administrative
decision. 148 Fed. Cl. at 565. That is not the case here; the defendant has provided substantial and legitimate
reasons for seeking a remand in this case.
4
defendant for the voluntary remand satisfies the initial hurdle established by the caselaw, as
summarized in Keltner.
The Court may thus proceed to exercise its discretion in evaluating the merits of the
defendant’s motion. A review of Mr. Rahman’s claim by the ABCMR would substantially aid in
the resolution of this case. The ABCMR might well conclude that the plaintiff’s 2015 removal
from active duty was in error, for either substantive or procedural reasons, or not. Even if the
ABCMR were to conclude that the plaintiff should have been retained on active duty beyond
November 1, 2015, there would remain medical questions the ABCMR should resolve in the first
instance.
The plaintiff is seeking constructive active duty pay for the period from November 2,
2015, until he was retired on disability on May 10, 2018. “The basic premise of the constructive
service doctrine is to ‘return successful plaintiffs to the position that they would have occupied
“but for” their illegal release from duty.’” Barnick v. United States, 591 F.3d 1372, 1379 (Fed.
Cir. 2010) (quoting Dilley v. Alexander, 627 F.2d 407, 413 (D.C. Cir. 1980)). As the defendant
accurately argues in support of its motion to remand, even “if Mr. Rahman had been retained on
active duty beyond November 1, 2015 for Disability Evaluation System processing, . . . he may
not have been retained on active duty for another two-and-one-half years.” (ECF 12 at 4). The
defendant goes on to outline two alternative approaches to rectifying the plaintiff’s situation even
if the premise of the plaintiff’s claim is correct.
The Court is not prepared to accept at this stage of the proceeding the defendant’s
characterization of what relief may be proper or whether the defendant’s discussion about the
scope of the available relief is sensible, but the defendant’s argument along these lines suggests
that even if the Court were to agree with the plaintiff and find him entitled to relief, the
determination of the parameters of that relief would require a remand to the ABCMR to consider
these arguments in the first instance. (ECF 12 at 5.) In such a case, a remand at this stage might
produce a quicker ultimate decision on the merits, making a remand now a more efficient means
of resolving the plaintiff’s claim promptly.
A remand will provide the Army an opportunity to review its decision and, if it finds it to
have been in error, to correct its own mistake. That approach, consistent with the principle
underlying both Antonellis and SKF, is to be preferred over judicial intervention, which is most
appropriate when an agency refuses to correct a substantive or procedural error. Given the
substantial deference to be accorded the armed services in their personnel decisions, it is even
more appropriate to allow them the opportunity to correct their own mistakes.
Under SKF, as explicated by Keltner and other subsequent decisions, the defendant’s
motion is supported by substantial and legitimate concerns. In such cases, “remand is usually
appropriate.” 254 F.3d at 1029. Accordingly, the Court grants the defendant’s motion.
The plaintiff opposes a remand in part because of the time he fears he will lose in
obtaining the monetary relief he is seeking and needs, because he “has been without pay for five
years.” (ECF 10 at 5.) The plaintiff points to delays by the ABCMR in adjudicating a case on
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which the defendant relies in urging the Court to grant its motion. (Id. (citing Wolfing v. United
States, 144 Fed. Cl. 516 (2019)).)
The Court is sympathetic to the plaintiff’s concern. Recently, another judge of this court
confronted a similar situation. In Yang v. United States, ___ Fed. Cl. ___, 2020 WL 4198011
(July 8, 2020), Judge Lettow granted the government’s motion for a voluntary remand but found
that the plaintiff’s interest in avoiding unnecessary delay had merit. Id. at ___, 2020 WL
4198011 at *3.
The Court finds that Mr. Rahman’s concern with the prejudice he will suffer from the
delay attending a remand is justified. As Judge Lettow noted in Yang, RCFC 52.2 authorizes the
court to “specify procedural limitations for a remand.” Id. The Court will rely on that authority
to seek to expedite the time spent on the remand, but the plaintiff will need to cooperate with the
expedited schedule.
The Court directs the plaintiff to apply to the ABCMR for relief within two weeks of this
decision. The Court will allow the ABCMR 90 days (adjusted for the Thanksgiving holiday)
following the plaintiff’s application for relief to render an initial decision on the issue of whether
the Army erred in removing the plaintiff from active duty on November 1, 2015. If the ABCMR
determines at that first step that no error was made or that the plaintiff suffered no injustice, the
plaintiff will be able to return to this Court promptly. If the ABCMR finds, however, that the
Army erred in removing the plaintiff from active duty when it did, the ABCMR may have an
additional 90 days to determine the appropriate relief due to the plaintiff and any other issues the
plaintiff presents. This two-prong approach will allow a relatively quick initial decision
susceptible to judicial review, while also allowing for a more thorough treatment of the
plaintiff’s medical records if the ABCMR determines in the first instance that the Army
committed substantive or procedural error or the plaintiff suffered an injustice.
In the event further proceedings are required in this Court following the ABCMR’s
decision, the Court will set an expedited briefing schedule.
The defendant’s motion to remand pursuant to RCFC 52.2 (ECF 8) is GRANTED.
The plaintiff’s claim is REMANDED to the Secretary of the Army, who is directed to
submit the matter to the ABCMR.
The plaintiff shall apply to the ABCMR by filing a DD Form 149 with the ABCMR on or
before September 4, 2020.
The ABCMR shall determine by November 30, 2020, whether the Army committed an
error or injustice in releasing the plaintiff from active duty on November 1, 2015, rather than
continuing him on active duty. In the event the ABCMR determines that no error or injustice
was committed by the Army in releasing the plaintiff from active duty on November 1, 2015,
rather than continuing him on active duty, the defendant shall file by December 14, 2020, a
status report informing the Court of that determination.
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In the event the ABCMR determines that an error or injustice was committed by the
Army in releasing the plaintiff from active duty on November 1, 2015, rather than continuing
him on active duty, the defendant shall file a status report by December 14, 2020, notifying the
Court of that determination. If it makes such a determination, the ABCMR shall determine the
appropriate relief due to the plaintiff and address any other issues the plaintiff presents in his
application and consider all relevant evidence, including any new evidence submitted by the
plaintiff in support of his application. The ABCMR shall render its decision by February 22,
2021, with respect to the relief due to the plaintiff and on any other issue presented. The
defendant shall file a status report informing the Court of the ultimate determination of the
ABCMR by March 8, 2021.
Any extension of these deadlines will be granted only for unusually compelling reasons,
unless the plaintiff consents to the extension.
The case is hereby STAYED until further order of the Court. No answer will be required
during the pendency of the stay. The requirement of RCFC 52.2(b)(1)(D) is hereby waived, and
neither party shall be required to file a status report, other than those required by the preceding
provisions of this Order, during the pendency of the stay.
A copy of this Order shall be served on the Secretary of the Army at:
Office of the Secretary of the Army
101 Army Pentagon
Washington DC 20310-0101
A copy of this Order shall also be served on the ABCMR at:
Army Review Boards Agency
251 10th Street South, Suite 385
Arlington VA 22202-3531
It is so ORDERED.
s/Richard A. Hertling
Richard A. Hertling
Judge
7