Hirsch v. United States

In the United States Court of Federal Claims
No. 19-236C
Filed: June 8, 2021
FOR PUBLICATION

JONATHAN R. HIRSCH,

Plaintiff,

v.

UNITED STATES,

Defendant.

Thomas A. Coulter, Norton Rose Fulbright US LLP, Washington, D.C., for the plaintiff.

Richard P. Schroeder, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, Washington, D.C., Major Nicholas D. Morjal, U.S. Army Legal Services Agency, of
counsel, for the defendant.

MEMORANDUM OPINION AND ORDER

HERTLING, Judge

The plaintiff, Jonathan R. Hirsch, has moved for reconsideration of the Court’s judgment
in favor of the defendant, the United States. The plaintiff, a former lieutenant colonel in the U.S.
Army, had argued that his period of reserve service while he attended law school should have
been excluded from his total commissioned service for purposes of calculating his mandatory
removal date. The Court, interpreting the applicable statute, found that the Army Board for
Correction of Military Records (“ABCMR”) did not err when it found that the plaintiff’s reserve
service during law school was properly included in the calculation.

The plaintiff now argues that the Court’s interpretation of the applicable statute conflicts
with other statutory and regulatory provisions. Because the Court’s interpretation does not cause
a conflict or manifest injustice, the plaintiff’s motion is denied.
I. BACKGROUND1

The plaintiff initiated this suit challenging the ABCMR’s decisions that found his reserve
service during law school properly included in his total commissioned service for purposes of
calculating his mandatory removal date. After the ABCMR denied the plaintiff relief for the
fourth time, the parties cross-moved for judgment on the administrative record. (ECF 50 & 57.)
On March 31, 2021, the Court granted the defendant’s motion for judgment on the administrative
record, finding that the ABCMR’s latest decision was not arbitrary, capricious, or contrary to
law. Hirsch v. United States, No. 19-236C, 2021 WL 1205112, at *12 (Fed. Cl. Mar. 31, 2021).

The plaintiff served on active duty and in the Individual Ready Reserve before attending
law school. (ECF 1, ¶¶ 21-22.) He served as a reserve officer during law school and served in
the Judge Advocate General’s Corps (“JAG Corps”) until his retirement. (Id. ¶¶ 24, 28.) After
serving approximately 28 years in the U.S. Army, the plaintiff was involuntarily retired pursuant
to 10 U.S.C. § 14507(a), which mandates an officer’s removal upon certain conditions, including
the officer’s completion of 28 years of commissioned service. (Id. ¶ 28.)

Section 14706(a) of Title 10 provides exclusions from the computation of commissioned
service. Subsection (a)(3) provides an exclusion for service while in a program of advanced
education:

Service after appointment as a commissioned officer of a reserve
component while in a program of advanced education to obtain the
first professional degree required for appointment, designation, or
assignment to a professional specialty, but only if that service occurs
before the officer commences initial service on active duty or initial
service in the Ready Reserve in the specialty that results from such
a degree.

10 U.S.C. § 14706(a)(3). The plaintiff argued that, contrary to the ABCMR’s decision,
subsection (a)(3) should have led to the exclusion of his reserve service during law school from
the calculation of his mandatory removal date. See Hirsch, 2021 WL 1205112, at *6.

The ABCMR rejected the plaintiff’s interpretation of the statute. The defendant argued
that the ABCMR decision was correct. On the defendant’s reading, the plaintiff was not eligible
for the exclusion because his service in the JAG Corps specialty was not his initial service on
active duty and in the Ready Reserve. Id. at *5.

For a full recitation of the facts and procedural history in this case, see the Court’s March
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31, 2021 opinion, Hirsch v. United States, No. 19-236C, 2021 WL 1205112, at *1-3 (Fed. Cl.
Mar. 31, 2021).

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 Regardless of the parties’ disparate interpretations of 10 U.S.C. § 14706(a)(3), the
defendant also argued that 10 U.S.C. § 14706(b) rendered subsection (a)(3)’s exclusion
inapplicable to the plaintiff. Subsection (b) provides a limitation on subsection (a)(3):

The exclusion under subsection (a)(3) does not apply to service
performed by an officer who previously served on active duty or
participated as a member of the Ready Reserve in other than a
student status for the period of service preceding the member’s
service in a student status.

10 U.S.C. § 14706(b). Subsection (b), on the defendant’s reading, renders subsection (a)(3)
inapplicable to service by an officer who has previously served on active duty or in the Ready
Reserve in other than student status before attending a program of advanced education. Hirsch,
2021 WL 1205112, at *7. The defendant argued that, even if the plaintiff’s interpretation of
subsection (a)(3) were correct, it would not matter because subsection (b) rendered subsection
(a)(3)’s exclusion inapplicable to the plaintiff’s service during law school and required that his
service be included in calculating his total commissioned service. Id. at *7-8.

In contrast to the defendant’s position, both the ABCMR and the plaintiff agreed that
subsection (b) rendered subsection (a)(3)’s exclusion inapplicable only to service leading up to
an officer’s enrollment in a program of advanced education. Id. at *6-7.

Although the ABCMR agreed with the plaintiff’s interpretation of subsection (b), the
Court found the defendant’s interpretation of subsection (b) to be the most natural reading of the
statute. The Court held that subsection (b) provided the following limitation on
subsection (a)(3):

[I]f an officer previously served on active duty or participated as a
member of the Ready Reserve in other than a student status prior to
attending a program of advanced education, then that officer cannot
exclude his or her service under (a)(3). Subsection (a)(3) does not
apply to service performed by such an officer.

Id. at *10.

As applied to the plaintiff, subsection (b) rendered subsection (a)(3)’s exclusion
inapplicable to his service during law school because he had previously served on active duty
and in the Individual Ready Reserve in other than a student status before attending law school.
Id. at *12.

Because the plaintiff could not exclude his service during law school under subsection
(a)(3), the Court concluded that the ABCMR’s decision denying the plaintiff relief was not
arbitrary, capricious, or contrary to law. Id. The Court entered judgment for the defendant.

The plaintiff has moved under Rule 59 of the Rules of the Court of Federal Claims
(“RCFC”) for reconsideration of the Court’s judgment (ECF 76), and, as the Court directed, the

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defendant has responded (ECF 78). The Court determines that oral argument would not assist in
the resolution of the motion.

II. STANDARD OF REVIEW

RCFC 59 governs motions for reconsideration, which “must be supported ‘by a showing
of extraordinary circumstances which justify relief .’” Caldwell v. United States, 391 F.3d 1226,
1235 (Fed. Cir. 2004) (quoting Fru-Con Constr. Corp. v. United States, 44 Fed. Cl. 298, 300
(1999), aff’d, 250 F.3d 762 (Fed. Cir. 2000) (table)). “Under Rule 59(a)(1), a court, in its
discretion, ‘may grant a motion for reconsideration when there has been an intervening change in
the controlling law, newly discovered evidence, or a need to correct clear factual or legal error or
prevent manifest injustice.’” Biery v. United States, 818 F.3d 704, 711 (Fed. Cir. 2016) (quoting
Young v. United States, 94 Fed. Cl. 671, 674 (2010)).

“Reconsideration of a judgment is not intended to permit a party to [reargue] its case
when it previously was afforded a full and fair opportunity to do so.” Peretz v. United States,
151 Fed. Cl. 465, 468 (2020), appeal filed, No. 21-1831 (Fed. Cir.). Rule 59 does not provide an
opportunity to “relitigate old matters, or to raise arguments or present evidence that could have
been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5
(2008) (internal quotation and citation omitted); see also Peretz, 151 Fed. Cl. at 468; Ammex,
Inc. v. United States, 52 Fed. Cl. 555, 557 (2002).

When a party seeks reconsideration on the ground of manifest injustice, that party must
demonstrate that such injustice is “apparent to the point of being almost indisputable.” Pac. Gas
& Elec. Co. v. United States, 74 Fed. Cl. 779, 785 (2006).

III. DISCUSSION

The plaintiff seeks reconsideration of the judgment and a judgment in his favor “to avoid
manifest injustice.” (ECF 76-1 at 1.) The plaintiff argues that “this Court has approved of a
novel understanding of the words of subsection (b), counter to the understanding that was,
indeed, common among both parties prior to this litigation.” (Id. at 2.) The plaintiff argues that
the Court’s reading of 10 U.S.C. § 14706(b) could cause manifest injustice for other Army
officers who rely on subsection (a)(3)’s exclusion. (Id. at 3.) Specifically, the plaintiff argues
that the Court’s interpretation conflicts with another statute and two Army regulations, citing
10 U.S.C. § 710, Army Regulation 165-1 (Army Chaplain Corps Activities), and Army Directive
2014-07 (Army Career Intermission Pilot Program).

The defendant responds that the plaintiff is attempting to reargue the law and is raising
new arguments that could have been considered earlier. (ECF 78 at 2.) The defendant argues
that the provisions cited by the plaintiff are nonetheless in harmony with the Court’s
interpretation of subsection (b). (Id. at 2, 10.)

A. 10 U.S.C. § 710

The Court held that 10 U.S.C. § 14706(b) rendered (a)(3)’s exclusion inapplicable to an
officer’s service during a program of advanced education, such as law school, if that officer had
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previously served on active duty or in the Ready Reserve in other than a student status before the
officer’s service in student status. The plaintiff argues that the Court’s interpretation of
10 U.S.C. § 14706(b) conflicts with 10 U.S.C. § 710.

Section 710 of Title 10 authorizes programs under which service members may be
temporarily inactivated from active service:

Each Secretary of a military department may carry out programs
under which members of the regular components and members on
Active Guard and Reserve duty of the armed forces under the
jurisdiction of such Secretary may be inactivated from active service
in order to meet personal or professional needs and returned to active
service at the end of such period of inactivation from active service.

10 U.S.C. § 710(a). A reserve officer’s service while in one of these programs is excluded from
computation of the total years of service: “Any service by a Reserve officer while participating
in a program under this section shall be excluded from computation of the total years of service
of that officer pursuant to section 14706(a) of [Title 10].” Id. § 710(b)(2).

The plaintiff argues that officers who wish to pursue “professional needs” in a program
authorized under § 710 are, by virtue of the Court’s prior decision, now “told [their] time while
inactivated cannot be excluded.” (ECF 76-1 at 6-7.) Those officers would have necessarily
served in other than a student status before serving in student status. (Id. at 6.) The plaintiff
concludes that the Court’s interpretation of § 14706(b) now makes § 14706(a) inapplicable to
those officers. (Id. at 7.) Characterizing the situation as a “dilemma” or a “Catch-22” for those
officers, the plaintiff argues that those officers would be faced both with § 710, a statute
authorizing an exclusion under § 14706(a), and with this Court’s interpretation of § 14706(b)
prohibiting the exclusion. (Id. at 5, 7.)

The Court finds, however, that the two statutory provisions are in harmony.
Section 14706(b), by its express terms, limits only § 14706(a)(3). 10 U.S.C. § 14706(b) (“The
exclusion under subsection (a)(3) does not apply . . . .”). Officers who wish to exclude service
under § 710 are not faced with a dilemma; their service is excluded pursuant to § 710 itself.
Section 710 provides an exclusion “pursuant to section 14706(a)” but does not require an officer
meet the requirements under § 14706(a)(3). Officers who are inactivated “to meet personal . . .
needs” under § 710 certainly would not meet § 14706(a)(3)’s requirement that the service be in a
“program of advanced education.” Id. §§ 710(a), 14706(a)(3). If the other conditions under
§ 710 were met, those officers would invoke the exclusion under § 710, not § 14706(a)(3).
Section 14706(b), therefore, would have no effect on those officers. The Court’s interpretation
of § 14706(b) does not conflict with § 710.

Congress did not enact § 710 until 2018, after the plaintiff had retired. See John S.
McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115 -232, § 551,
132 Stat. 1636, 1765-68 (2018). Indeed, the plaintiff concedes that § 710 does not apply to him.
(ECF 76-1 at 6.) The timing also demonstrates that § 710 was not the active-duty analog of the

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exclusion in § 14706 when Congress enacted § 14706 in 1999, so § 710 is not useful for
interpreting § 14706—the provision at issue in this case.

The plaintiff’s reliance on 10 U.S.C. § 710 is therefore misplaced, and § 710 does not
conflict with the Court’s interpretation of § 14706(b). The plaintiff has not shown that the
Court’s interpretation is clear legal error or would cause manifest injustice.

B. Army Regulations

The plaintiff also argues that the Court’s interpretation of § 14706(b) has a “wide-
reaching effect” on “all other officers who seek an educational delay after their initial
commission to pursue an advanced degree . . . .” (ECF 76-1 at 8.) Citing the Army regulations
for the Army Chaplain Corps and the Army Career Intermission Pilot Program (“CIPP”), the
plaintiff argues that the Court’s earlier decision risks invalidating other Army regulations. (Id. at
8-9.)

First, the plaintiff cites the Army Chaplain Corps Activities regulation. It provides that
“[a]ll chaplain candidates are in an educational delay status,” and that “[i]n accordance with
10 USC 14706, officers who participate in the Chaplain Candidate Program . . . will have their
time of service as a chaplain candidate excluded from their mandatory release date . . . .” Army
Reg. 165-1, 7-5(a).

Second, the plaintiff cites the CIPP regulation. The CIPP was established in 2014 to
provide “‘a one-time temporary transition from active duty in the [Regular Army] or [U.S. Army
Reserve Active Guard Reserve] Program to the Individual Ready Reserve to allow Soldiers to
pursue personal or professional growth while providing a mechanism for their seamless return to
active duty.’” (Id. at 9 (quoting Army Dir. 2014-07, ¶ 3) (emphasis omitted) (modifications
added).)2 The Army authorized that this service be excluded from an officer’s total years of
service: “‘The period spent in the CIPP as a Reserve officer will be excluded from computation
of the officer’s total years of service as defined in Title 10, U.S.C. section 14706(a).’” (Id.
(quoting Army Dir. 2014-07, ¶ 4(m)) (emphasis omitted).)

Based on these regulations, the plaintiff argues that the Court’s ruling would “force the
Army to break its express promise” to the officers in these programs because the Court’s
interpretation of § 14706(b) would render (a)(3)’s exclusion inapplicable to their service,
contrary to the Army regulations. (Id.) The Court disagrees.

The plaintiff’s argument regarding the CIPP fails for the same reasons that his argument
fails regarding 10 U.S.C. § 710. In 2021, the Army created the Career Intermission Program
(“CIP”), implementing 10 U.S.C. § 710 and rescinding the CIPP. See Army Dir. 2021-15 (May
6, 2021). Section 14706(b) limits only § 14706(a)(3), so it has no bearing on the exclusion in the

2 Neither party submitted a copy of the 2014 CIPP Directive or the 2017 revision to it; the
Court could locate only the 2021 Directive online. The Court therefore quotes the language of
the 2014 Directive as cited in the plaintiff’s brief.

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current Army regulation, which is based on 10 U.S.C. § 710. Because § 14706(a)(3) does not
provide the authority for the current regulatory exclusion, the Court’s interpretation of
§ 14706(b) does not conflict with the CIP.

Although the Court agrees with the defendant that the CIP does not conflict with the
Court’s interpretation for the same reasons as discussed above regarding § 710, the defendant
ducks the plaintiff’s argument regarding the Army Chaplain Corps regulation by claiming that he
failed “to develop his argument.” (See ECF 78 at 8.) The plaintiff does, however, adequately
lay out and support his argument, which the Court must address even in the absence of a
counterargument by the defendant.

The Court understands the plaintiff to be arguing that some chaplain candidates could
unjustly be denied the benefit of § 14706(a)(3)’s exclusion based on the Court’s interpretation of
§ 14706(b).

The Court found that § 14706(b), on its most natural reading, renders (a)(3)’s exclusion
inapplicable to this plaintiff’s service. The plaintiff was not training to be a chaplain, and the
application of the regulations covering chaplains was not before the Court. As previously noted,
the plaintiff was in neither the CIPP nor the CIP and was not in a program authorized by
10 U.S.C. § 710. The Court does not intend to upend any Army programs, and the plaintiff
overstates the Court’s authority to do so. To the extent that the Court’s interpretation conflicts
with the Army regulation governing the Chaplain Corps, the Court’s interpretation is not binding
on other parties.

The Court has noted the closeness of the case. Some other entity or court might read
§ 14706(b) differently than did this Court, which has again reviewed the language of the statute
and is not prepared to deviate from its initial reading of the statute’s unambiguous text as applied
to the plaintiff. If the statute and Army regulations are in conflict, the Army’s regulations must
give way. Congress can always cure such conflict and can overturn this Court’s reading of
§ 14706(b) by clarifying the statute. Unless and until Congress does so, the Court adheres to its
prior interpretation of § 14706(b).

IV. CONCLUSION

The Court does not find grounds to reconsider its judgment. The Court’s interpretation of
10 U.S.C. § 14706(b) does not conflict with 10 U.S.C. § 710, and the interpretation does not
have the sweeping effect on Army regulations that the plaintiff suggests. The plaintiff has not
met his burden of showing an error of law or a manifest injustice.

The plaintiff’s motion for reconsideration (ECF 76) is DENIED.

It is so ORDERED.

s/ Richard A. Hertling
Richard A. Hertling
Judge

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