Case: 21-1466 Document: 78 Page: 1 Filed: 09/07/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EDDY JEAN PHILIPPEAUX,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2021-1466
______________________
Appeal from the United States Court of Federal Claims
in No. 1:20-cv-00275-DAT, Judge David A. Tapp.
______________________
Decided: September 7, 2021
______________________
EDDY JEAN PHILIPPEAUX, Miami, FL, pro se.
LIRIDONA SINANI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for defendant-appellee. Also represented by
BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., ELIZABETH
MARIE HOSFORD.
______________________
Before NEWMAN, O’MALLEY, and TARANTO, Circuit Judges.
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2 PHILIPPEAUX v. US
PER CURIAM.
Eddy Jean Philippeaux appeals from a final judgment
entered for the United States in Philippeaux v. United
States, Case No. 20-275C (Fed. Cl. Dec. 1, 2020). Mr.
Philippeaux seeks to have his honorable discharge from the
United States Navy recast as a disability retirement. The
Board for Corrections of Naval Records (“Board”) deter-
mined that no change to his record was warranted. The
Court of Federal Claims (“Claims Court”) found that the
Board decision was not arbitrary, capricious, unsupported
by evidence, or contrary to law, and granted judgment on
the administrative record in favor of the United States. On
appeal, Mr. Philippeaux challenges the Claims Court’s re-
mand to the Board for reconsideration of an earlier decision
and the Claims Court’s subsequent decision granting the
United States judgment on the administrative record. Be-
cause the Claims Court’s remand decision was not an abuse
of discretion and because the Board’s decision is supported
by substantial evidence, we affirm.
I. BACKGROUND
In 1977, while on active duty aboard the U.S.S.
McCandless, Mr. Philippeaux struck his face against a
wall. He suffered a minor laceration near his eye. He re-
ceived two sutures and then returned to duty.
Three years later, in 1980, he was honorably dis-
charged from the Navy with an RE-1 reenlistment code,
designating that he was eligible for reenlistment. Before
his discharge, he underwent a medical examination which
noted no significant medical conditions. He reported that
he was healthy and had no history of head injury, head-
aches, dizziness, eye trouble, thyroid trouble, chest pain, or
memory loss, among other conditions. Performance evalu-
ations from before his discharge reported that he “met the
minimum requirements of his rate and job assignment” but
exhibited “marginal performance” attributable to
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PHILIPPEAUX v. US 3
“domestic problems” and his “preparations for his transi-
tion to the civilian community.” S. App. 1432. 1
The day after his honorable discharge, he enlisted in
the United States Air Force Reserve. Three years later, in
1983, he enlisted in the Air National Guard. Mr.
Philippeaux underwent another medical examination for
his enlistment in the Air National Guard. He again re-
ported that he was in good health with no history of head
injuries, headaches, dizziness, eye trouble, thyroid trouble,
chest pain, or memory loss. In 1989, he was discharged
from the Air National Guard for unsatisfactory participa-
tion.
In 1996, sixteen years after his discharge from the
Navy, Mr. Philippeaux sought service-connected disability
benefits. The examining physician at a Department of Vet-
erans Affairs (“VA”) Outpatient Clinic diagnosed Mr.
Philippeaux with dysthymic disorder. 2 The VA awarded
Mr. Philippeaux a 70% disability rating due to a “Psychotic
Disorder,” effective February 27, 1995. The VA later rated
Mr. Philippeaux 100% disabled with service-connected
“Psychotic Disorder,” effective July 1, 2008.
In 2009, Mr. Philippeaux sought service-connected
benefits for an alleged traumatic brain injury and residual
conditions associated with that alleged injury. The VA de-
nied his claim. Mr. Philippeaux appealed that decision.
In 2018, while his traumatic brain injury disability
claim was pending before the United States Court of
1 All S. App. citations refer to the Corrected Supple-
mental Appendix filed by the United States in this appeal,
Dkt. No. 62.
2 Dysthymic disorder is a chronic depression. Dysthy-
mia, JOHNS HOPKINS MEDICINE, https://www.hopkinsmedi-
cine.org/health/conditions-and-diseases/dysthymia (last
visited Aug. 11, 2021).
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4 PHILIPPEAUX v. US
Appeals for Veterans Claims, Mr. Philippeaux applied for
correction of his military record to reflect disability retire-
ment pursuant to 10 U.S.C. § 1201. The Board denied Mr.
Philippeaux’s request, finding that “the preponderance of
the evidence did not support a finding that [Mr.
Philippeaux was] unfit for continued naval service for any
disability condition at the time of [his] discharge from the
Navy.” S. App. 86. The Board provided two reasons for its
determination. First, the Board “could not establish a
nexus between [Mr. Philippeaux’s] poor performance [lead-
ing up to his discharge from the Navy] and any medical
condition.” S. App. 86. “Second, and more importantly, the
Board concluded [that Mr. Philippeaux’s] subsequent en-
listment in the U.S. Air Force in April 1984 was strong ev-
idence of fitness for active duty at the time of [his]
discharge from the Navy in 1980.” S. App. 87.
After the Board denied his request, Mr. Philippeaux
filed a complaint in the Claims Court asserting, first, that
he has a right to disability retirement under 10 U.S.C.
§ 1201, and, second, that the government violated his con-
stitutional due process and equal protection rights. During
that proceeding, the government sought voluntary remand
to the Board because the Board had incorrectly stated that
Mr. Philippeaux was “fit to enlist in the Air Force approxi-
mately 3.5 years after” his 1980 discharge, when Mr.
Philippeaux in fact enlisted in the Air Force Reserve only
a day after being honorably discharged from the Navy and
then enlisted in the Air National Guard in 1983. The gov-
ernment also sought remand to allow the Board to consider
additional records submitted by Mr. Philippeaux. The
Claims Court granted the government’s unopposed motion.
On remand, the Board again denied Mr. Philippeaux’s
application, finding that the “evidence did not establish
probable material error or injustice.” S. App. 82. The
Board relied on the two physical examinations conducted
in 1980 and 1983 in which Mr. Philippeaux had attested to
his good health and denied experiencing a litany of
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PHILIPPEAUX v. US 5
enumerated medical complaints. The Board found that Mr.
Philippeaux’s post-discharge medical diagnoses and 1996
VA assigned disability ratings were not probative of
whether Mr. Philippeaux was fit for continued service as of
1980, particularly because contemporaneous medical rec-
ords from 1980 reported that he was in good health with no
issues. The Board again found that performance evalua-
tions from 1980 documenting Mr. Philippeaux’s marginal
military performance did not show lack of fitness for con-
tinued service, as the Navy also recommended Mr.
Philippeaux for reenlistment and he went on to serve in the
Air National Guard from 1983 to 1989.
Following the Board’s decision on remand, the United
States filed a motion for judgment on the administrative
record before the Claims Court. The United States also
sought dismissal of Mr. Philippeaux’s constitutional claims
for lack of jurisdiction. The Claims Court granted both.
Mr. Philippeaux appeals the Claims Court’s grant of
judgment on the administrative record in favor of the
United States. We have jurisdiction under 28 U.S.C.
§ 1295(a)(3).
II. DISCUSSION
Mr. Philippeaux appears to challenge two of the Claims
Court’s decisions on appeal. First, he challenges the
Claims Court’s remand to the Board for reconsideration.
Second, he challenges the Claims Court’s determination
that the Board’s decision is supported by substantial evi-
dence.
A. Remand for Reconsideration
Mr. Philippeaux argues that the remand decision was
incorrect for several reasons. He seems to argue that the
remand improperly gave the Board a second bite at the ap-
ple—an opportunity to correct its prior misstatement of his
military service history and develop a new rationale to
deny his claim. He asserts that the Board had no authority
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6 PHILIPPEAUX v. US
to re-adjudicate his claim under 32 C.F.R. § 723.9, which
provides that “[a]fter final adjudication, further considera-
tion will be granted only upon presentation by the appli-
cant of new and material evidence or other matter not
previously considered by the Board.” He appears to argue
that the Board’s decision after remand was ultra vires and,
therefore, non-justiciable. He further argues that the re-
mand was an unconstitutional violation of his Fifth
Amendment due process rights.
We hold that the Claims Court’s remand to the Board
for reconsideration was not an abuse of discretion. The
Tucker Act, under which the Claims Court had jurisdiction
to hear this case, authorizes the Claims Court “to remand
appropriate matters to an administrative or executive body
or official with such directions as it may deem proper and
just.” See 28 U.S.C. § 1491(a)(2). And precedent from this
court and the Supreme Court shows that the Claims Court
did not abuse its discretion in remanding in this case.
We have previously identified several circumstances
where an agency may request a remand, including to re-
consider its previous position without confessing error.
SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed.
Cir. 2001). Where an agency requests a remand to recon-
sider its previous position, “the reviewing court has discre-
tion over whether to remand.” Id. “[I]f the agency’s
concern is substantial and legitimate, a remand is usually
appropriate.” Id.
The Supreme Court has held that where “the record be-
fore the agency does not support the agency action, if the
agency has not considered all relevant factors, or if the re-
viewing court simply cannot evaluate the challenged
agency action on the basis of the record before it, the proper
course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation.” Fla.
Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); see
also Walls v. United States, 582 F.3d 1358, 1367 (Fed. Cir.
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PHILIPPEAUX v. US 7
2009). The Supreme Court noted that “[t]he reviewing
court is not generally empowered to conduct a de novo in-
quiry into the matter being reviewed and to reach its own
conclusions based on such an inquiry.” Fla. Power, 470
U.S. at 744. “The focal point for judicial review should be
the administrative record already in existence, not some
new record made initially in the reviewing court.” Id. at
743. In a previous case in which a veteran presented new
evidence to the Claims Court rather than to the Board, we
required the Claims Court to remand to the Board for con-
sideration of that new evidence. Walls, 582 F.3d at 1368.
The Claims Court did not abuse its discretion when it
remanded to the Board for reconsideration. The Board’s
previous decision evinced a misunderstanding of Mr.
Philippeaux’s service history which the Board, rather than
the Claims Court, was in the best position to correct. Sim-
ilarly, the Board, rather than the Claims Court, was in the
best position to review new evidence Mr. Philippeaux pre-
sented to the Claims Court. Contrary to Mr. Philippeaux’s
arguments, the Claims Court did not give the Board an im-
proper second chance to come up with some new reason to
deny his claim. It properly permitted the Board to correct
the record and review new evidence.
Mr. Philippeaux’s arguments that the Board’s decision
on remand is non-justiciable, that the Board did not have
the power to reconsider on remand because he had not re-
quested reconsideration, and that the remand was a viola-
tion of his Fifth Amendment due process rights are
unavailing. First, at no point in these proceedings does it
appear that the government admitted that Mr. Philippeaux
was entitled to his requested relief. It merely requested
remand for the Board to reconsider its decision in light of
the factual inaccuracy in one of the Board’s reasons for
denying Mr. Philippeaux’s claim. Thus, there was always
a live controversy over Mr. Philippeaux’s right to his re-
quested relief and the case was justiciable throughout.
Second, 32 C.F.R. § 723.9 provides for Board
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8 PHILIPPEAUX v. US
reconsideration on an applicant’s request, but does not
limit a court’s ability to remand for reconsideration. The
Board was not acting outside of its mandate when it recon-
sidered the case on remand from the Claims Court. Third,
there is no evidence that Mr. Philippeaux was ever denied
the “essential requirements of due process”: “notice and an
opportunity to respond.” See Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 546 (1985). The record shows
that he was provided notice of the government’s remand
request, the Claims’ Courts remand order, and the Board’s
remand decision. He had the opportunity to participate
and respond throughout the proceedings. Indeed, the gov-
ernment called Mr. Philippeaux before they filed their mo-
tion for voluntary remand and he informed them that he
did not oppose the request.
B. Judgment on the Administrative Record
Mr. Philippeaux appears to challenge the Claims
Court’s finding that the Board’s decision is supported by
substantial evidence. He asserts that, contrary to the
Board’s decision, overwhelming evidence shows that he
was medically unfit for continued military service as of
1980. He argues that this evidence shows that his 1977
injury caused a traumatic brain injury, which went undi-
agnosed and untreated, and ultimately caused a myriad of
issues beginning two months after the initial injury and
continuing to appear over the next several years. These
various conditions, Mr. Philippeaux asserts, rendered him
unfit for continued service as of his 1980 discharge from
the Navy.
We review the Claims Court’s grant of a motion for
judgment on the administrative record de novo. Strand v.
United States, 951 F.3d 1347, 1351 (Fed. Cir. 2020), cert.
denied, 141 S. Ct. 894 (2020). “In reviewing an adverse de-
cision of a records correction board, we apply the same
standard of review that the Court of Federal Claims ap-
plied, without deference.” Id. This court, like the Claims
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PHILIPPEAUX v. US 9
Court, reviews records correction board decisions to deter-
mine if they are “arbitrary, capricious, contrary to law, or
unsupported by substantial evidence.” Prestonback v.
United States, 965 F.3d 1363, 1368 (Fed. Cir. 2020). Sub-
stantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Edison Co. v. Labor Board, 305 U.S. 197, 229 (1938). It “is
something less than the weight of the evidence, and the
possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency’s
finding from being supported by substantial evidence.”
Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620
(1966).
Substantial evidence supports the Board’s determina-
tion made after remand. Although there is some evidence
that Mr. Philippeaux suffered various ailments in the
months before and the years after his 1980 discharge, sub-
stantial evidence from that period supports a finding that
he was in good health and was fit for reenlistment.
Mr. Philippeaux discounts the contemporaneous evi-
dence of his medical fitness for reenlistment by asserting
that brain hemorrhage is an “invisible injury” not readily
apparent through outside observation. But that assertion
does not counteract the ample affirmative evidence of Mr.
Philippeaux’s good health in 1980. Two weeks before his
discharge from the Navy, he attested to his good health and
stated that he was not currently suffering from, nor had
ever experienced, the myriad symptoms he now claims he
was suffering. The physician conducting his examination
noted no significant medical conditions. He was thus found
eligible for reenlistment. Three years later, Mr.
Philippeaux underwent another medical examination for
his 1983 enlistment in the Air National Guard. He again
attested to his good health and denied experiencing (or ever
having experienced) many of the symptoms he now claims.
He was medically cleared for enlistment in the Air
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10 PHILIPPEAUX v. US
National Guard and went on to serve for six years, includ-
ing three years of active duty.
Other evidence further supports the Board’s determi-
nation. For example, in 1982, Mr. Philippeaux received a
computerized tomography scan which revealed that he had
a “normal brain” with a “prominent” pituitary gland that
“may be in the upper limits of normal.” S. App. 277. A
physician indicated that a follow-up scan may be needed
“to rule out the presence of an increasing pituitary lesion,”
but did not report concerns of traumatic brain injury. Id.
A medical record from 1979 indicates that Mr. Philippeaux
was referred to an endocrinologist with a provisional diag-
nosis of possible hyperthyroidism based on reported symp-
toms of weight loss, mood swings, and anxiety. But, after
further examination, Mr. Philippeaux was found to have
“no evidence of thyroid disease.” S. App. 899.
Mr. Philippeaux argues that negative performance
evaluations from 1979 and 1980 and evidence of later-aris-
ing medical concerns are evidence of his medical unfitness
to reenlist. But his performance evaluations merely report
poor performance. They do not indicate that Mr.
Philippeaux’s marginal performance was due to medical
causes. Similarly unavailing is the evidence of later medi-
cal issues, such as Mr. Philippeaux’s 1982 hospitalization
due to chest pain and VA award of a 70% disability rating,
effective in 1995, and a 100% disability rating, effective in
2008, due to psychosis disorder and service-connected psy-
chotic disorder. This evidence of later-arising medical is-
sues does not indicate that Mr. Philippeaux was unfit for
reenlistment as of 1980. Even if Mr. Philippeaux’s mar-
ginal military performance in 1980 and later-arising med-
ical diagnoses were attributable to a medical condition
from 1980, they would only indicate “the possibility of
drawing two inconsistent conclusions from the evidence,”
which “does not prevent an administrative agency’s finding
from being supported by substantial evidence.” See Con-
solo, 383 U.S. at 620.
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PHILIPPEAUX v. US 11
III. CONCLUSION
We have considered Mr. Philippeaux’s remaining argu-
ments and conclude that they are without merit. For the
reasons discussed above, we affirm the Claims Court.
AFFIRMED
COSTS
No costs.