Philip L. Anderson v. United States

In the United States Court of Federal Claims
No. 12-486 C

(Filed June 6, 2013)

* * * * * * * * * * * *** *
PHILIP L. ANDERSON, et al., *
*
Plaintiffs, * Military Pay; Nonjusticiable
* Challenge to Merits of Allegedly
v. * Wrongful Discharges; No Violation
* of Statute, Regulation or Procedure;
THE UNITED STATES, * Rights to Due Process and Equal
* Protection Under the Fifth
Defendant. * Amendment Not Violated.
* * * * * * * * * * * * * *

Elvin W. Keller, Oklahoma City, OK, for plaintiffs.

Daniel G. Kim, United States Department of Justice, with whom were Stuart
F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director,
Bryant G. Snee, Deputy Director, Washington, DC, for defendant. Lieutenant
Commander Andrew E. Carmichael, Office of the Judge Advocate General, United
States Navy, Washington, DC, of counsel.

__________________________

OPINION
_______________________

Bush, Judge.

This military pay case is before the court on defendant’s motion to dismiss,
or, in the alternative, motion for judgment upon the administrative record, filed
under Rules 12(b)(1), 12(b)(6) and 52.1 of the Rules of the United States Court of
Federal Claims (RCFC). Defendant’s motion has been fully briefed and is ripe for
decision. Although plaintiffs requested oral argument, there were no ambiguities
in the legal issues presented by this case which would have been resolved by oral
argument presented by counsel. For the reasons stated below, defendant’s motion
is granted.

BACKGROUND1

In this suit, approximately three hundred plaintiffs challenge their discharges
from the United States Navy on or before September 1, 2012.2 Plaintiffs were
serving as enlisted personnel in pay grades E5, E6, and E7 until an Enlisted
Retention Board (ERB), which was convened in 2011, recommended that they
should be discharged. Compl. at 4-5.3 Relevant excerpts from a March 23, 2011
Secretary of the Navy (Secretary) memorandum titled “Notification of Intent to
Convene a Quota-Based Enlisted Retention Board” are reproduced here:

Navy will be challenged to reduce enlisted manning to
meet future planned end strength controls due to record
high retention in the current economic environment.
While Navy will continue to exercise the full extent of
existing voluntary and involuntary measures to size and
align the force, more aggressive actions will be required

1
/ The facts upon which the parties rely are undisputed unless otherwise noted. The
administrative record (AR) filed by defendant contains exhibits which are indexed, tabbed and
consecutively paginated. Plaintiffs’ exhibits are not consecutively paginated, and, in many
cases, lack pagination of any sort. Due to these deficiencies, see RCFC 5.4(a)(2)(G), 5.5(c)(6),
and plaintiffs’ often incomplete citation to exhibits, the court was unable to readily locate some
of the passages referenced by plaintiffs. See, e.g., Compl. at 7 (citing an otherwise unidentified
“paragraph 4A(3)” in an exhibit of fifty-three pages); Pls.’ Resp. at 4, 22 (quoting unspecified
passages in an exhibit of fifty-three pages). Although the court’s analysis of plaintiffs’ legal
arguments was not hampered in this instance, plaintiffs’ counsel would be well advised to pay
closer attention to filing rules and to citation conventions that facilitate the identification of the
exhibit pages, or paragraphs within those pages, upon which counsel intends to rely.
2
/ Plaintiffs have also filed a motion to certify this suit as a class action. Because this
case must be dismissed for the reasons stated in this opinion, plaintiffs’ class action motion is
denied as moot.
3
/ All references to the complaint in this case are to the third amended complaint filed
November 2, 2012.

2
 to achieve balance and fit. Current analysis shows an
FY12 requirement for approximately 3,000 additional
losses beyond that which can be expected with our
existing force-shaping measures. I am therefore advising
you of my intent to conduct an FY12 Enlisted Retention
Board (ERB) . . . .

I intend to convene the ERB in August, 2011 and
estimate that approximately 16,000 Sailors will be
eligible for the board. The board will utilize quotas to
identify approximately 3,000 Sailors whose separation is
in the best interest of the Navy and will focus in those
ratings [i.e., job specialties] that are overmanned. Sailors
in pay grades E4-E9 with between 7 and 15 years of
service will be eligible for the board.

Executing a board of this nature is essential at this time to
optimize the quality of the force, shape our end strength
to meet future challenges, and relieve pressure on
Perform-to-Serve (PTS).[4] It will also enable the Navy
to meet FY-12 end strength targets and to ensure we
retain our best with a balance of seniority, skills, and
experience.

AR at 1.

Thus, unlike most wrongful discharge suits brought by individual
service-members before this court, this action challenges a large-scale reduction in
the number of enlisted personnel serving in the Navy. Two thousand nine hundred

4
/ Perform-to-Serve “is a centralized reservation system used to manage reenlistments”
in the Navy. Navy Personnel Command, at
http://www.public.navy.mil/bupers-npc/organization/
npc/publicaffairs/news/Pages/2010/NavyAnnouncesNewRequirementsforPerformtoServe.aspx
(last visited May 17, 2013).

3
and forty-six enlisted personnel were discharged as a result of the ERB process.5
Def.’s Mot. at 9; Pls.’ Resp. at 1. The court reserves further discussion of the ERB
process, and plaintiffs’ specific challenges to their discharges, for the analysis
section of this opinion.

Plaintiffs’ suit in this court was filed on August 2, 2012 and originally
sought a preliminary injunction of plaintiffs’ discharges. The court explained that
injunctive relief of that nature was not available in this forum. See Order of
August 23, 2012. Plaintiffs’ remaining requests for relief include reinstatement “to
serve their tour[s] of duty,” or, in the alternative, damages related to pay,
allowances, benefits and “pension monies” incident to their tours of service
terminated by the Navy. Compl. at 11.

On October 15, 2012, defendant filed its motion to dismiss, or, in the
alternative, motion for judgment upon the administrative record. Plaintiffs
responded on January 14, 2013, and attached several exhibits to their response
brief (Pls.’ Exs. A-L). Defendant’s reply brief, filed February 8, 2013, addressed
the arguments in plaintiffs’ response brief and also suggested that the court strike
certain exhibits attached to plaintiffs’ response brief (Pls.’ Exs. B, E, G, H, and K).
Def.’s Reply at 9-10.

After two and a half months had transpired, plaintiffs filed a motion to
supplement the administrative record on April 26, 2013, which has been fully
briefed. Attached to that motion were four exhibits (Pls.’ Supp. Exs. A-D).6
Plaintiffs’ motion did not specifically address the contested exhibits that were
attached to plaintiffs’ response brief (i.e., those that were challenged by defendant),
but instead argued that plaintiffs’ newly-discovered supplemental exhibits should
augment the administrative record in this case. See Pls.’ Mot. at 1 (requesting leave

5
/ For the purposes of this opinion, the term “ERB process” refers inclusively to the
retention and non-retention recommendations of that board, as well as the subsequent discharges
of plaintiffs.
6
/ The exhibits attached to the complaint, plaintiffs’ response to defendant’s dispositive
motion, and plaintiffs’ motion to supplement the administrative record are all identified as
Exhibit A, Exhibit B, etc. To reduce confusion, the court cites exhibits attached to the complaint
as Compl. Ex. A, Compl. Ex. B, etc.; the court cites exhibits attached to plaintiffs’ response brief
as Pls.’ Ex. A, Pls.’ Ex. B, etc.; the court cites exhibits attached to plaintiffs’ motion as Pls.’
Supp. Ex. A, Pls.’ Supp. Ex. B, etc.

4
to file “newly occurring and discovered evidence” that was attached to the motion).
The parties’ dispute over supplementation of the administrative record will be
discussed in the analysis section of this opinion.

DISCUSSION

I. Standards of Review

A. RCFC 12(b)(1)

In rendering a decision on a motion to dismiss for lack of subject matter
jurisdiction pursuant to RCFC 12(b)(1), this court must presume all undisputed
factual allegations to be true and construe all reasonable inferences in favor of the
plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other
grounds by Harlow v. Fitzgerald, 457 U.S. 800, 814-15 (1982); Reynolds v. Army &
Air Force Exch. Serv., 846 F.2d 746, 747 (Fed. Cir. 1988). However, plaintiff bears
the burden of establishing subject matter jurisdiction, Alder Terrace, Inc. v. United
States, 161 F.3d 1372, 1377 (Fed. Cir. 1998) (citing McNutt v. Gen. Motors
Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936)), and must do so by a
preponderance of the evidence, Reynolds, 846 F.2d at 748 (citations omitted). If
jurisdiction is found to be lacking, this court must dismiss the action. RCFC
12(h)(3).

B. RCFC 12(b)(6)

When considering a motion to dismiss under RCFC 12(b)(6), “the allegations
of the complaint should be construed favorably to the pleader.” Scheuer, 416 U.S.
at 236. The court must inquire, however, whether the complaint meets the
“plausibility” standard described by the United States Supreme Court, i.e., whether
it adequately states a claim and provides a “showing [of] any set of facts consistent
with the allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 560, 563 (2007) (citations omitted). It is well-settled that a complaint should
be dismissed under RCFC 12(b)(6) “when the facts asserted by the claimant do not
entitle him to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed.
Cir. 2002).

C. RCFC 52.1

5
 RCFC 52.1(c) provides for judgment on the administrative record. To review
a motion under RCFC 52.1(c), the court asks whether, given all the disputed and
undisputed facts, a party has met its burden of proof based on the evidence in the
record. Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005). The
court must make fact findings where necessary. Id. The resolution of a motion
filed under RCFC 52.1(c) is akin to an expedited trial on the paper record. Id.

D. Supplementation of the Administrative Record

In Axiom Resource Management, Inc. v. United States, 564 F.3d 1374 (Fed.
Cir. 2009), the United States Court of Appeals for the Federal Circuit identified the
acceptable circumstances under which an administrative record may be
supplemented. The Axiom panel criticized a decision by this court which permitted
supplementation of the administrative record in a bid protest, and criticized the trial
court’s over-broad reliance on Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989),
a decision which provides a list of justifications for the supplementation of the
administrative record of an agency action. Axiom, 564 F.3d at 1379-81. Axiom, the
seminal case on record supplementation in this circuit, is precedent binding on this
court.

The court notes that the Axiom panel adopted a restrictive standard for
supplementation of the administrative record, and favorably cited Murakami v.
United States, 46 Fed. Cl. 731 (2000), aff’d, 398 F.3d 1342 (Fed. Cir. 2005).
Axiom, 564 F.3d at 1380. The Axiom standard for supplementation of the
administrative record is a direct quotation from Murakami, stating that
“supplementation of the record should be limited to cases in which ‘the omission of
extra-record evidence precludes effective judicial review.’” Id. (quoting Murakami,
46 Fed. Cl. at 735). The Federal Circuit relied on the cases cited by this court in
Murakami to conclude that “[t]he purpose of limiting review to the record actually
before the agency is to guard against courts using new evidence to ‘convert the
“arbitrary and capricious” standard into effectively de novo review.’” Id. (quoting
Murakami, 46 Fed. Cl. at 735 and citing Fla. Power & Light Co. v. Lorion, 470
U.S. 729, 743-44 (1985); Camp v. Pitts, 411 U.S. 138, 142 (1973)). The thrust of
the Axiom decision, and Murakami, is that this court must exercise restraint when
considering whether or not to supplement the administrative record. See id.
(favoring a “more restrictive approach” and questioning the vitality of Esch)
(citations omitted); Murakami, 46 Fed. Cl. at 735 (stating that the construction of

6
the Esch justifications for allowing supplementation of an administrative record
should be “‘extremely limited’”) (citations omitted).

II. Analysis

A. Jurisdiction

Pursuant to the Tucker Act, the United States Court of Federal Claims has
jurisdiction “to render judgment upon any claim 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.” 28
U.S.C. § 1491(a)(1) (2006). The Tucker Act, however, “does not create any
substantive right enforceable against the United States for money damages. The
Court of Claims has recognized that the Act merely confers jurisdiction upon it
whenever the substantive right exists.” United States v. Testan, 424 U.S. 392, 398
(1976) (citation omitted). A plaintiff coming before the United States Court of
Federal Claims, therefore, must also identify a separate provision of law conferring
a substantive right for money damages against the United States. Todd v. United
States, 386 F.3d 1091, 1094 (Fed. Cir. 2004) (citing Testan, 424 U.S. at 398).

1. Pay and Allowances

In the present case, plaintiffs allege that the Military Pay Act, 37 U.S.C.
§ 204 (2006), provides the money-mandating provision of law for their pay and
associated allowances claims. Pls.’ Resp. at 11. Claims for back pay based on
§ 204 are within the jurisdiction of this court. Metz v. United States, 466 F.3d 991,
998 (Fed. Cir. 2006). Claims for allowances incident to active-duty military
service are also typically within the jurisdiction of the court when brought in a
wrongful discharge suit. E.g., Miglionico v. United States, 108 Fed. Cl. 512, 520
(2012). Defendant does not contest the court’s jurisdiction over plaintiffs’ back pay
and allowances claims. See Def.’s Mot. at 10 (citing Holley v. United States, 124
F.3d 1462, 1465 (Fed. Cir. 1997)). Thus, jurisdiction lies for plaintiffs’ pay and
allowances claims.

2. Injunctive Relief to Prevent Discharges

7
 Plaintiffs’ third amended complaint continues to request an injunction
preventing the discharges of plaintiffs scheduled to occur no later than September 1,
2012, despite the fact that this version of the complaint was filed on November 2,
2012. Compl. at 11. As defendant notes, even if plaintiffs’ request for relief were
not moot, the court lacks jurisdiction over this type of injunctive relief in a military
pay case. See Def.’s Mot. at 11 (citing Anderson v. United States, 21 Cl. Ct. 143,
144 (1990)). Plaintiffs appear to have abandoned this particular request for relief,
which was expressed in Count VIII of the complaint; in any event, this claim, and
Count VIII, must be dismissed for lack of jurisdiction.7

3. Contract Claim

Plaintiffs, in Count IV of the complaint, present what appears to be a claim
based on some type of contract with the United States. See Compl. at 8 (discussing
the obligations of the “Navy in fulfilling . . . contracts with sailors”); see also Pls.’
Resp. at 7 (“Each Plaintiff had a contract with the United States Government
through the United States Navy.”). As defendant correctly notes, however, the
employment of members of the military branches is governed by statute, not by
contract. See Def.’s Reply at 4 (citing Schism v. United States, 316 F.3d 1259,
1271-76 (Fed Cir. 2002) (en banc)). Plaintiffs rely solely on the mention of the
word “contract” in the Tucker Act, and cite no cases in support of their contract
claim based on service in the Navy. Inasmuch as plaintiffs’ entitlement to pay is
based solely upon statute, to the extent that plaintiffs rely upon a military enlistment
contract or any other contract, such an alleged agreement cannot constitute a basis
for Tucker Act jurisdiction. E.g., Sonnenfeld v. United States, 62 Fed. Cl. 336, 339
(2004). Plaintiffs’ contract claim, and Count IV of the complaint, must therefore be
dismissed for lack of jurisdiction.

4. ERISA Claim

Plaintiffs introduce a claim for the violation of their rights under the

7
/ The court notes that the counts of the complaint are roughly drawn and that it is not
easy to categorize the type of claim (or claims) associated with each count. For example, Count
VI, rather than presenting a legal theory or claim, appears to consist entirely of factual
allegations as to the types of harm plaintiffs will suffer as a result of their discharges. Defendant
suggests that plaintiffs’ claims may be categorized into three basic types: wrongful discharge,
due process violations, and discriminatory treatment. Def.’s Mot. at 12-13.

8
Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1002 et seq. (2006)
(ERISA) in their response brief. As defendant correctly notes, “[p]laintiffs’
complaint never mentions any claims arising under [ERISA].” Def.’s Reply at 3
n.2. If defendant has been prejudiced by this last-minute addition of a claim that
was not enumerated in the third amended complaint, the court could reasonably
refuse to consider plaintiffs’ ERISA claim. See, e.g., Crest A Apartments Ltd. II v.
United States, 52 Fed. Cl. 607, 613 (2002) (refusing to “consider claims asserted by
[the plaintiff] in its motion but not pleaded in its complaint”) (citations omitted).

In any case, whether or not plaintiffs’ response brief should be allowed to
amend the complaint, which has already been thrice amended, plaintiffs have failed
to cite any authority which holds that ERISA applies to plaintiffs’ service in the
Navy, or that claims under ERISA are within the jurisdiction of this court.
Plaintiffs have thus failed to meet their burden to establish jurisdiction in this court
for any ERISA claim. Therefore, plaintiffs’ ERISA claim, to the extent that it is
properly before the court, is dismissed for lack of jurisdiction. See Def.’s Reply at
3 n.2 (persuasively arguing that ERISA has no applicability to military retirements
(citing 29 U.S.C. §§ 1002(32), 1003(b)(1))).

5. Independent Constitutional Claims

Defendant argues that plaintiffs, to the extent that they assert constitutional
claims that are independent of their pay claims, assert claims that should be
dismissed for lack of jurisdiction. Def.’s Mot. at 11. As a threshold matter, the
court notes that plaintiffs’ two references in the complaint to constitutional rights
are fleeting and vague.8 The first mention of constitutional rights is in Count V of

8
/ The complaint also cryptically alludes to “the 1983 Civil Rights Act” as a source of
law that was violated by discrimination in the Navy’s ERB process. Compl. at 10. There is no
citation to the United States Code in support of this comment in the complaint, nor is there any
factual allegation in the complaint which would support a claim based on civil rights protections
of any sort. The court notes that if plaintiffs intended to include an independent civil rights
claim, perhaps under 42 U.S.C. § 1983 (2006), jurisdiction for such a claim lies in the district
courts, not this court. See, e.g., Marlin v. United States, 63 Fed. Cl. 475, 476 (2005) (stating that
this court “does not have jurisdiction to consider civil rights claims brought pursuant to 42
U.S.C. §§ 1981, 1983, or 1985 because jurisdiction over claims arising under the Civil Rights
Act resides exclusively in the district courts”) (citations omitted). To the extent that the
complaint could be read to present an independent civil rights claim, that claim is dismissed for
continue...

9
the complaint: “[T]he failure to give an opportunity for a hearing or to be heard by
each Plaintiff is a violation of the 5th Amendment of the United States
Constitution.” Compl. at 8. The next mention of constitutional rights, in Count VII
of the complaint, suggests that discriminatory treatment of plaintiffs was “in
violation of . . . the United States Constitution.” Id. at 10. No further explanation
of a claim, or claims, based on plaintiffs’ constitutional rights can be found in the
complaint.

To the extent that plaintiffs’ complaint could be read to contain an
independent claim based on the Due Process Clause of the Fifth Amendment to the
United States Constitution, or an independent claim founded on the equal protection
component of that clause, such claims are not within the jurisdiction of this court,
because these constitutional provisions, by themselves, are not money-mandating.
E.g., Hamlet v. United States, 63 F.3d 1097, 1107 (Fed. Cir. 1995); LeBlanc v.
United States, 50 F.3d 1025, 1028 (Fed. Cir. 1995); Mack v. United States, 635 F.2d
828, 832 (Ct. Cl. 1980). Plaintiffs have not cited to any authority which addresses
this court’s jurisdiction over independent claims based on constitutional provisions
which are not money-mandating. See Pls.’ Resp. at 9 (asserting that “[c]ase law is
replete with decisions wherein the United States Federal Court of Claims [sic] has
ruled on constitutional issues,” yet failing to cite a single decision by this court in
support of this assertion); see also Def.’s Reply at 4 (persuasively arguing that
plaintiffs failed to cite any authority that would support this court’s jurisdiction over
any independent Fifth Amendment claims). Any independent constitutional claims
that might be discerned in plaintiffs’ complaint are dismissed for lack of
jurisdiction.9

6. Retirement Pay

8
...continue
lack of jurisdiction.

9
/ Whether a violation of due process or equal protection guarantees can be discerned in
the Navy’s conduct, as potential support for plaintiffs’ wrongful discharge claim to pay and
allowances, is a separate issue which will be discussed infra. See, e.g., Holley, 124 F.3d at 1467
(stating that the plaintiff in that case “was not barred from raising, and the Court of Federal
Claims was not barred from considering, whether the procedures of his discharge were in
violation of statutory, regulatory, or constitutional rights”).

10
 Defendant argues that plaintiffs’ claim to “pension monies,” Compl. at 11,
fails both for lack of jurisdiction and as a matter of law. See Def.’s Mot. at 23-24;
Def.’s Reply at 5. Defendant correctly notes that in their complaint plaintiffs have
failed to cite to any statute that mandates the payment of retirement pay. Def.’s
Mot. at 23-24. Plaintiffs’ response brief also fails to reference a money-mandating
statute that would support a claim for retirement benefits. Plaintiffs have failed to
meet their burden to establish any jurisdictional basis for their claim to retirement
pay.10 Thus, plaintiffs claim to retirement pay must be dismissed for lack of
jurisdiction.

B. Failure to State a Claim, on Justiciability Grounds

Defendant’s RCFC 12(b)(6) arguments, other than the retirement pay claim
challenge discussed supra note 10, focus on whether the Navy’s ERB process is at
all subject to judicial review: “[P]laintiffs’ amended complaint should be
dismissed, for failure to state a claim upon which relief can be granted, because
. . . the [discharge] decisions challenged by plaintiffs were left purely to the
discretion of the Navy and are thus nonjusticiable.” Def.’s Mot. at 2. The
government relies on a series of precedential decisions of the Federal Circuit, and,
in particular, on a decision issued by this court which is not binding in this case, for
its justiciability test. The court is not persuaded by these authorities, however, that
plaintiffs’ challenge to the Navy’s ERB process is nonjusticiable in its entirety.

1. Binding Precedent

It is clear that some routine personnel decisions by the military are
nonjusticiable. See, e.g., Voge v. United States, 844 F.2d 776, 780 (Fed. Cir. 1988)
(citing cases). “There is a significant difference[, however,] between relatively
minor and routine military personnel actions, like the denial of [a special pay
benefit], and the denial of all pay and allowances through allegedly unlawful

10
/ Defendant persuasively argues that even if plaintiffs had cited a retirement pay statute
applicable to retirees from the Navy, plaintiffs’ retirement pay claim would fail as a matter of
law. See Def.’s Mot. at 23-24. None of the facts alleged in the complaint would support a viable
claim for retirement benefits, because no plaintiff would have attained eligibility for mandatory
retirement pay by the end of his or her term of service. See id. Defendant’s arguments are
entirely unrebutted by plaintiffs. Thus, even if the court possessed jurisdiction over plaintiffs’
retirement pay claim, this claim would necessarily be dismissed under RCFC 12(b)(6).

11
discharge from military service because of statutory violations by the military
departments.” Id. at 780 n.1 (citing Sanders v. United States, 594 F.2d 804, 814
(Ct. Cl. 1979); Yee v. United States, 512 F.2d 1383, 1388 (Ct. Cl. 1975); Clackum v.
United States, 296 F.2d 226, 229 (Ct. Cl. 1961)). When a procedural or statutory
violation has been alleged to have rendered a discharge wrongful, this type of
challenge to a discharge is generally viewed as justiciable. See, e.g., Holley, 124
F.3d at 1468 (noting that in such cases the court may inquire “whether the decision
to [discharge] without a full hearing before a board of inquiry violated any statute,
regulation, or the fundamental due process that the Constitution provides to all
persons”).

Defendant, in its examination of the issue of justiciability, relies on Murphy
v. United States, 993 F.2d 871, 872-73 (Fed. Cir. 1993), and Sargisson v. United
States, 913 F.2d 918, 922 (Fed. Cir. 1990), for their holdings that certain military
separation procedures were discretionary and not subject to judicial review. Def.’s
Mot. at 13-14. These decisions are not only distinguishable from this case on their
facts, but the Federal Circuit clearly noted in those cases that procedural challenges
to allegedly wrongful discharges are generally justiciable. See Murphy, 993 F.2d at
873 (stating that “[o]n procedural matters, [because] the test or standard is
inherent[,] [a] court may appropriately decide whether the military followed
procedures because by their nature the procedures limit the military’s discretion”);
Sargisson, 913 F.2d at 922 (holding that a claim founded on an alleged statutory
violation was justiciable). Defendant has also cited Adkins v. United States, 68 F.3d
1317, 1323 (Fed. Cir. 1995), which draws the distinction between a justiciable
wrongful discharge claim, based on alleged violations of statute, regulation, or
procedure, and a nonjusticiable challenge to the merits of a personnel decision
committed to the discretion of the military branch. See id. at 1323 & n.8 (citing
cases). None of the binding precedent cited by defendant instructs this court to
reject all of plaintiffs’ challenges to their discharges as nonjusticiable.

2. Confusion Between a Justiciability Standard and a Standard
of Review for a Wrongful Discharge Claim

Defendant relies extensively on a decision of this court for the formulation of
the government’s justiciability test. See Def.’s Mot. at 13-15, 18, 22 (citing
Brigante v. United States, 35 Fed. Cl. 526 (1996)); see also Def.’s Reply at 7
(same). The court notes, first, that no other decision from this court, or any other

12
court, has adopted the “justiciability test” that defendant has discerned in Brigante.
The passage in question concludes an opinion section titled “Justiciability”:

Thus, in military discharge cases, judicial review is only
appropriate if the court finds the military agency acted
beyond the applicable statutory authority, ignored
procedural regulations, or violated minimum concepts of
basic fairness.

Brigante, 35 Fed. Cl. at 530 (citations omitted).

The court observes that if the word “review” is replaced by the word
“intervention,” the above-cited passage in Brigante accurately states the standard of
review for wrongful discharge claims. See, e.g., Waller v. United States, 461 F.2d
1273, 1276 (Ct. Cl. 1972) (“[A]n administrative discharge issued to a serviceman
prior to the expiration of his enlistment term is void if it exceeds applicable
statutory authority, or ignores pertinent procedural regulations, or violates minimum
concepts of basic fairness.”) (citations omitted). Defendant’s reliance on Brigante
for the formulation of a three-element test for justiciability is misplaced. The
remaining sections of the Brigante opinion clearly apply the Waller standard of
review to the merits of the case and deny relief to the plaintiff not on justiciability
grounds but because the plaintiff’s discharge was not improper. See 35 Fed. Cl. at
532 (granting the government’s motion to dismiss because the “Navy’s actions were
within the powers delegated to it by statutes and Naval regulations, and met the
minimum level of fairness”). Thus, in substance, Brigante presents a standard for
judicial review of a challenge to a military discharge, not a justiciability standard.

3. Plaintiffs’ Challenges to the Merits of Their Discharges are
Nonjusticiable

Although defendant has perhaps faltered somewhat in stating the standard for
justiciability, the court notes that the law is not perfectly settled in this area. Each
type of military personnel decision may pose a slightly different justiciability
problem. Denials of disability retirement benefits, for example, are justiciable, and
this court may reach the merits of a decision denying disability retirement benefits
to a service-member, although such review is deferential. E.g., Fisher v. United
States, 402 F.3d 1167, 1180, 1184 (Fed. Cir. 2005). Courts must determine,

13
sometimes with great difficulty, whether precedent permits judicial review of the
merits of a particular type of military personnel decision. See id. at 1177-84.

There is not much difficulty, however, in analyzing the precedent that
governs this case. A challenge to the merits of a discharge alleged to be wrongful is
a nonjusticiable controversy under binding precedent in this circuit. See, e.g.,
Sargisson, 913 F.2d at 922 (holding that because there were no tests or standards
that a court could apply to the merits of a reduction in force by the Air Force, the
plaintiff’s suit was nonjusticiable and the court could not decide “whether the
decision to release [the plaintiff] from active duty was correct”). This court cannot
intrude upon the Navy’s power to manage its active-duty workforce. See, e.g.,
Murphy, 993 F.2d at 874 (holding, in the case of a reduction in force by the Air
Force, that “the merits of the Air Force’s decision to release [the plaintiff] from
active duty are beyond judicial reach”).

Plaintiffs’ only citation to binding precedent on the justiciability issue is to
Sanders, 594 F.2d at 812. Pls.’ Resp. at 12-13. Sanders, however, is inapposite
because that decision discusses this court’s review of the decisions of military
boards for the correction of records, a circumstance which does not pertain here.
See Def.’s Reply at 6-7. The court agrees with defendant that Murphy and
Sargisson clearly bar this court’s consideration of the merits of the Navy’s decision
to convene an ERB and the merits of the Navy’s decision to discharge plaintiffs;
plaintiffs’ challenges to these discretionary decisions are nonjusticiable. Plaintiffs’
claims attacking the merits of the Navy’s decision to discharge them must be
dismissed under RCFC 12(b)(6) because those claims are nonjusticiable. See, e.g.,
Birt v. United States, 180 Ct. Cl. 910, 913 (1967) (“[W]e may test the validity of a
discharge only in terms of its legal sufficiency and not in terms of the military’s
wisdom in discharging one of its members.”).

4. Plaintiffs’ Exhibits Which Go To the Merits of the Navy’s
Discharge Decisions Will Not Supplement the
Administrative Record

All of plaintiffs’ supplemental exhibits are offered to show that the Navy
should not have decided to discharge plaintiffs. See Pls.’ Supp. Mot. at 9 (stating
that plaintiffs’ supplemental exhibits are “germane to the basis of the ERB

14
[decisions] discharging plaintiffs”) (emphasis added);11 Pls.’ Supp. Reply at 9-10
(“The Supplemental material points out that not only did the Navy’s [over-
manning] projections not ‘substantially’ support their action of discharge, but it
didn’t even come close.”). Supplemental Exhibit A, an article in the “Navy Times,”
discusses current recruitment and re-enlistment goals;12 Supplemental Exhibit B,
another “Navy Times” article, similarly discusses recruitment plans of the Navy;
Supplemental Exhibit C, another “Navy Times” article, discusses two decades of
Navy workforce reductions and efforts to restore the workforce to a higher level;
Supplemental Exhibit D lists “rating quotas,” Pls.’ Supp. Mot. at 4, for new recruits
for the Navy. These exhibits, in plaintiffs’ view, undermine the “premises upon
which [the] ERB based its [discharge] decision.” Id. at 5.

As the court has noted, however, the merits of the discharge decisions of the
Navy are nonjusticiable. Plaintiffs’ supplemental exhibits, which could only inform
a judicial review of the merits of the discharge decisions, are not necessary for an
effective judicial review of plaintiffs’ justiciable claims alleging violation of
statutory, procedural or constitutional rights, which are fully explicated by the
administrative record submitted by defendant. Under Axiom, plaintiffs’ motion to
supplement the record with their supplemental exhibits must therefore be denied.

The court now turns to the exhibits attached to plaintiffs’ response to
defendant’s dispositive motion. Defendant challenges Plaintiffs’ Exhibits B, E, G,
H, and K as improper supplements to the administrative record. Def.’s Reply at
9-11. The court notes, first, that Exhibit E appears to be an incomplete copy of
Supplemental Exhibit C, and must be rejected for the same reason that
Supplemental Exhibit C has been rejected. Exhibit K is an email discussing
possible links between two ERB discharges and two suicides. This email has no
possible relevance to the justiciable challenge to the ERB process that this court
must resolve. Thus, the court agrees with defendant that neither Plaintiffs’ Exhibit
E nor Plaintiffs’ Exhibit K should supplement the administrative record in this case.

The remaining exhibits challenged by defendant comment on the procedures

11
/ Plaintiffs’ motion is unpaginated; the court uses the page numbers supplied by the
court’s electronic filing system.
12
/ Supplemental Exhibit A contains a second article from the “Navy Times”; its
inclusion in this exhibit is unexplained. See Pls.’ Supp. Ex. A at 5-7.

15
followed by the Navy in the ERB process. Plaintiffs’ Exhibit B is a letter from an
official at the Navy to a Congressman giving a detailed explanation of the ERB
process; Plaintiffs’ Exhibits G and H are affidavits from discharged sailors.
Although these documents may not ultimately prove to be probative in this case, the
court notes that supplementation of the administrative record has not been
uniformly rejected by this court in military pay cases. See, e.g., Fuentes v. United
States, No. 10-861C, 2012 WL 1650748, at *1-*3 (Fed. Cl. May 11, 2012)
(permitting two brief extra-record documents to supplement the record in that
military pay case); Golding v. United States, 48 Fed. Cl. 697, 728-29 (2001)
(permitting limited supplementation of the administrative record to examine an
allegation of bad faith conduct by the military). Although the court will rely
primarily on the administrative record produced by the Navy, the court does not
believe judicial review of the procedural, statutory and constitutional challenges
brought by plaintiffs would be effective if the court completely ignored plaintiffs’
proffered evidence as to the procedures followed by the ERB. Thus, under Axiom,
Plaintiffs’ Exhibits B, G and H are appropriate supplements to the administrative
record in this case.

C. Judgment on the Administrative Record

The court reviews the ERB process to determine whether “it exceed[ed]
applicable statutory authority, or ignore[d] pertinent procedural regulations, or
violate[d] minimum concepts of basic fairness.” Waller, 461 F.2d at 1276 (citing
Keef v. United States, 185 Ct. Cl. 454, 461 (1968); Birt, 180 Ct. Cl. at 913); see also
Brigante, 35 Fed. Cl. at 530 (same). As part of the inquiry into alleged violations of
“minimum concepts of basic fairness,” the court must determine whether plaintiffs’
constitutional rights have been violated. E.g., Holley, 124 F.3d at 1468; Keef, 185
Ct. Cl. at 471. Because plaintiffs’ challenges to the ERB process are not always
clearly set forth or logically organized, the court will address all of plaintiffs’
substantive arguments by grouping them into the categories described in Waller.13

13
/ Plaintiffs’ unsupported speculation as to bad faith motives of the Navy are insufficient
to overcome the presumption of good faith accorded to the actions of military officers and will
not be further discussed in this opinion. See Hoffman v. United States, 894 F.2d 380, 385 (Fed.
Cir. 1990) (“Military officers, like other public officials, are presumed to ‘discharge their duties
correctly, lawfully, and in good faith.’” (quoting Guy v. United States, 608 F.2d 867, 870 (Ct. Cl.
1979))).
continue...

16
 1. Statutory Authority Not Exceeded

In the complaint, plaintiffs cite 10 U.S.C. § 1169 (2006) as the statute that
was contravened in the ERB process. See Compl. at 6 (“Defendant is prohibited by
Title 10 U.S.C.A §1169 from discharging a sailor before their ‘term of service’ has
ended.”). Neither the complaint nor plaintiffs’ response brief sets forth the relevant
provisions of § 1169, the text of which reads:

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.

10 U.S.C. § 1169. Plaintiffs’ theory appears to be that the Secretary could not
delegate discharge decisions to the ERB. See Compl. at 7 (“By Title 10 U.S.C.
§1169 only the Secretary of the Navy can prescribe a discharge before a term of
service expires . . . .”); id. at 8 (“The ERB acting as a sub agency in terminating
Plaintiffs at will is illegal and not within the meaning of the word ‘prescribed’ as set
forth in Title 10 U.S.C. §1169.”); Pls.’ Resp. at 25 (“[C]an the Secretary of the
Navy outsource to a separate[ly] created body, ‘the ERB’ to correct its [workforce
staffing level] problems?”). Plaintiffs fail to cite any caselaw to support their view
that only the Secretary can “prescribe” the discharge of sailors prior to the
expiration of their terms of service.

As defendant persuasively argues, nothing in the creation of the ERB or the
discharges that ensued exceeded the authority of § 1169 or any other statute. See
Def.’s Mot. at 14-18; Def.’s Reply at 15-16. In particular, the government notes
that the convening of the ERB and, subsequently, plaintiffs’ discharges, were
approved by the Chief of Naval Personnel who has been delegated the requisite
authority by 10 U.S.C. §§ 5131, 5132(b), 5141 (2006). Def.’s Mot. at 17 & n.12.
Defendant further notes that discharges of the type at issue in this suit are
authorized by 10 U.S.C. § 5013(b), (c)(4) (2006). Def.’s Mot. at 14-15. Plaintiffs
offer no authority to rebut these arguments. This court has approved other schemes

13
...continue

17
for the reduction of enlisted personnel in the military as being within the authority
of § 1169. See, e.g., Brigante, 35 Fed. Cl. at 530 (citing Vierrether v. United States,
27 Fed. Cl. 357, 361 (1992), aff’d, 6 F.3d 786 (Fed. Cir. 1993) (table); Giglio v.
United States, 17 Cl. Ct. 160, 166 (1989)). In sum, plaintiff has not established that
the Navy exceeded the authority of 10 U.S.C. § 1169 in this case.

2. Required Procedures Not Ignored

Plaintiffs raise three principal challenges to the ERB process that are founded
on procedural requirements for enlisted personnel separations set forth in
Department of Defense Instruction 1332.14 (Aug. 28, 2008) (DoDI 1332.14).14
This court has held that DoDI 1332.14 is binding on the service branches. E.g.,
Strickland v. United States, 69 Fed. Cl. 684, 702-09 (2006); Gilchrist v. United
States, 33 Fed. Cl. 791, 799 (1995); see also Favreau v. United States, 317 F.3d
1346, 1350 (Fed. Cir. 2002) (stating that DoDI 1332.14 “sets out guidelines for the
separation of service-members”). First, plaintiffs suggest that they did not receive
adequate notice of the reasons for their discharges, as required by DoDI 1332.14.
See Compl. at 6 (“Each Plaintiff is without information and knowledge of the basis
for his selection in the discharge procedure that took place by the ERB.”). Second,
plaintiffs argue that the right to a hearing provided by DoDI 1332.14 was denied to
them. See id. (“No Plaintiff herein has been offered an Administrative Hearing or a
Hearing of any type nature to be confronted with the basis of his discharge.”).
Third, plaintiffs appear to argue that the particular type of reduction in force
accomplished by the ERB process is not among the types of workforce reductions
permitted by DoDI 1332.14. Id. at 7. The court will address each of plaintiffs’
arguments based on DoDI 1332.14 in turn, and will then address a separate issue
raised not in the complaint but in plaintiffs’ response brief – whether procedures set
forth in the Navy’s personnel manual were violated by the ERB process.

a. Adequate Notice

14
/ DoDI 1332.14 was attached both to the complaint and to plaintiffs’ response brief.
Compl. Ex. D; Pls.’ Ex. A. Plaintiffs’ reliance on the provisions of DoDI 1332.14 is not aided
by plaintiffs’ failure to provide pin-cites to exhibit pages or full citation to particular paragraphs
within the fifty-three page directive. See supra note 1. This directive is also available at
http://www.dtic.mil/dtic (last visited May 17, 2013). For the sake of clarity in this opinion, the
court has exchanged parentheses for periods in the subparagraph identifiers in this directive,
transforming, for example, DoDI 1332.14 Enc. 3 ¶ 2a.(1), to DoDI 1332.14 Enc. 3 ¶ 2(a)(1).

18
 On the topic of their right to receive notice of the bases of their discharges,15
plaintiffs’ sole citation to a specific provision of DoDI 1332.14 is perplexing. The
provision cited by plaintiffs refers to the Secretary’s responsibility to periodically
inform enlisted personnel of separation policies. See Compl. at 6 (quoting DoDI
1332.14 Enc. 2 ¶ 2(c)(4)). This provision, of a broad and general purpose, cannot
be construed to apply to plaintiffs’ right, if any, to receive notice of the bases of
their particular discharges. The relevant text of DoDI 1332.14 Enc. 2 ¶ 2(c)(4) is
reproduced here:

[The Secretary shall] [p]rescribe appropriate internal
procedures for periodically informing enlisted personnel
about separation policy, the types of separations, the basis
for their issuance, the possible effects of various actions
upon reenlistment, civilian employment, veterans’
benefits, and related matters concerning denial of certain
benefits to Service members who fail to complete at least
2 years of an original enlistment. Failure on the part of
the Service member to receive or to understand such
explanation shall not create a bar to separation or
characterization.

Id. Even if this provision could be construed to have some relevance to plaintiffs’
argument that they did not receive adequate notice of the bases of their discharges,
this provision clearly states that the failure of the Secretary to provide the
information outlined in this provision is not a bar to separation. Thus, in the
complaint plaintiffs have not pointed to any provision of DoDI 1332.14 which
requires that a particular type of notice be provided plaintiffs in the circumstances
of their discharges, nor have they shown how any such provision could have been
violated.

In their response brief, plaintiffs make little headway with their notice rights
argument based on DoDI 1332.14. On page four of their brief, plaintiffs cryptically
refer to notice rights provided in DoDI 1332.14, but fail to state where the relevant
provisions are located in that directive. Plaintiffs may be referencing DoDI 1332.14

15
/ Plaintiffs’ contention that they should have had notice of their hearing rights is briefly
addressed in the next section of this opinion.

19
Enc. 5 ¶ 2(a), which addresses notice rights of service-members that will be
separated under certain types of separation procedures. On page fifteen of their
brief, plaintiffs again mention their notice rights, but again fail to cite any specific
section of DoDI 1332.14. Finally, plaintiffs allege that they “were never told why
they were discharged,” Pls.’ Resp. at 21, but fail to explain how the Navy has
violated any specific notice requirements that might be found in DoDI 1332.14. On
this record, plaintiffs have not established a violation of notice requirements in
DoDI 1332.14.

Even though plaintiffs have neglected to identify any specific notice rights in
DoDI 1332.14 that apply to their discharges, the court will nonetheless review the
record for any possible violation of specific notice rights provided by that directive.
The court notes that the ERB was convened under DoDI 1332.14 Enc. 3 ¶ 2, which
authorizes certain types of workforce reductions. See AR at 1 (identifying the
specific provision in DoDI 1332.14 authorizing the ERB process); see also DoDI
1332.14 Enc. 3 ¶ 2 (titled “Selected Changes in Service Obligations”). The court
begins with the administrative record evidence of general announcements regarding
the ERB process.

The ERB process, which would reduce the workforce in certain job
specialties in certain enlisted pay grades within the Navy, was announced to all
naval personnel on April 14, 2011. AR Tabs 23, 47. It was clear that retention
decisions would be based, at least in part, on a review of the performance of
enlisted personnel in certain job specialties and pay grades. Id. at 522. A notice
regarding an alternative to separation (conversion to a job specialty that was not
targeted for workforce reductions) was issued on May 9, 2011. Id. Tabs 24, 49. A
notice extending the deadline for requesting a conversion to another job specialty
(so as to avoid separation) was issued on June 9, 2011. Id. Tab 53. Over two
thousand requests for conversion were received in response to these notices. Id.
Tab 59. As defendant concludes, plaintiffs were given notice of their potential
discharges and the basis for those potential discharges. The court is not aware of,
and plaintiffs have failed to articulate, any specific notice rights provided by DoDI
1332.14 that were violated in the notice given to plaintiffs that they might be
discharged at the conclusion of the ERB process.

Finally, and most importantly, the combination of general announcements
regarding the ERB process given to all affected naval personnel, and the

20
individualized notice given to each plaintiff that they were not selected for retention
by the ERB, cannot be construed as violating any notice requirements provided by
DoDI 1332.14. Defendant asserts, and plaintiffs have not refuted, the fact that
DoDI 1332.14 contains no specific notice requirements for a discharge process
initiated under the authority of DoDI 1332.14 Enc. 3 ¶ 2, as was the case here.
Def.’s Mot. at 20 & nn. 14-15, 30. Further, if the court is correct that plaintiffs
intended to rely on the notice provisions stated in DoDI 1332.14 Enc. 5 ¶ 2(a), an
introductory provision in Enclosure 5 restricts the “supplementary procedures” in
Enclosure 5 to specific types of discharges not applicable to the plaintiffs in this
case. See DoDI 1332.14 Enc. 5 ¶ 1(a); see also Def.’s Mot. at 20 & n.14. Thus,
plaintiffs’ claim that their notice rights under DoDI 1332.14 were violated fail for
the simple reason that this directive has not been shown to prescribe specific notice
procedures in the circumstances that apply here.

b. Right to a Hearing

Plaintiffs’ argument that their right to a hearing (and their related right to
receive notice of their hearing rights) under DoDI 1332.14 were violated by the
Navy fails for exactly the same reason – no such hearing procedures are prescribed
by DoDI 1332.14 for discharge programs initiated under DoDI 1332.14 Enc. 3 ¶ 2.
Plaintiffs reference, albeit without functional citation, a variety of hearing rights
noted in DoDI 1332.14, and assert that each plaintiff was entitled, under this
directive, to receive written notice of the service-member’s right to a hearing, as
well as an “Administrative Board” concerning the upcoming discharge. Pls.’ Resp.
at 4, 22. Defendant notes that plaintiffs appear to be relying on provisions in DoDI
1332.14 Enclosure 5, perhaps DoDI 1332.14 Enc. 5 ¶ 2(a)(7). Def.’s Mot. at 20.
As stated supra, however, the prescribed procedures in Enclosure 5 do not apply to
general workforce reduction programs initiated under DoDI 1332.14 Enc. 3 ¶ 2.
See Def.’s Mot. at 20 & nn. 14-15, 30. Plaintiffs therefore have not shown that any
rights to a hearing provided by DoDI 1332.14 were violated by the Navy in the
ERB process.

c. Permissible Purpose of Reduction

Plaintiffs argue that the ERB process is impermissible under DoDI 1332.14,
and rely on DoDI 1332.14 Enc. 3 ¶ 2(a)(1) for their interpretation of that directive.
There are many permutations of plaintiffs’ argument, none of which is expressed

21
clearly. It may be that plaintiffs assert that the ERB was impermissible from the
beginning, or that the ERB strayed from a permissible purpose into an
impermissible one. The presentation of this particular argument in the complaint is
hard to decipher and is reproduced here in its entirety:

The Navy does not have an instruction for Administrative
Separation and therefore as authority to separate cite
[Complaint] Exhibit D (DoD Instruction 1332.14P,
enclosure 3 subparagraph 2A(1)) as the basis of that
separation authority which says a service member may be
separated for the following reasons:
“General demobilization or reduction in authorized
strength.”

However, the Secretary of the Navy created the ERB only
to rebalance individual career fields within their
Congressionally authorized end strength.

The ERB was not created for or ever designed for
separation purposes of existent tours of duty to achieve
congressionally authorized force levels or grade
distributions as Exhibit D paragraph 4A(3) states.
Especially is the ERB without authority when the
manning levels are below congressional mandated levels
and strength. The ERB cannot be used as an alter ego for
purposes of terminating personnel such as the Plaintiffs
prior to their term of service expiring for any purpose of
discharging personnel outside the parameters for which it
was originally created.

Id. at 7.

In plaintiffs’ response brief, several variations of this argument are presented.
Without mentioning DoDI 1332.14, plaintiffs assert that “the ERB stepped out of
the boundaries of its creation” by terminating enlisted personnel during the course
of their terms of duty. Pls.’ Resp. at 5. Vaguely referring to “breached military
regulations,” plaintiffs appear to argue that the ERB could only discharge enlisted

22
personnel if workforce reductions were required because of “congressional
mandated levels and strengths.” Id. at 15. Plaintiffs, again without reference to
DoDI 1332.14 or specific provisions therein, also contend that “[t]he Navy without
authority had turned the ERB or retention board into a reduction in force RIF
board.” Id. at 20. Having reviewed the complaint and plaintiffs’ response brief, the
court must determine whether any of plaintiffs’ various contentions identify a
violation of the provisions of DoDI 1332.14. The answer is, quite simply, no.

The Secretary is permitted to institute early separation programs under DoDI
1332.14 Enc. 3 ¶ 2(a)(2). In relevant part, the directive states that “[a] Service
member may be separated for the following reasons . . . . (2) Early separation of
personnel under a program established by the Secretary concerned.” Id. Enc. 3
¶ 2(a). None of plaintiffs’ arguments show that the Navy exceeded this authority.

d. Personnel Manual Procedures

Although the complaint makes no reference to rights provided in the Navy
Military Personnel Manual (MILPERSMAN), plaintiffs argue in their response
brief that two notice provisions of that manual were violated in the ERB process.
Pls.’ Resp. at 22 (citing “MILPERSMAN 1910-010” and “MILPERSMAN 1910-
402”).16 However, as defendant notes, Def.’s Reply at 18-19, MILPERSMAN
1910-010 specifically explains that the notice procedures upon which plaintiffs
apparently rely do not provide substantive rights to service-members, see
MILPERSMAN 1910-010 ¶ 5(c). Defendant further notes that the notification
procedures described in MILPERSMAN 1910-402 do not apply to a workforce
reduction discharge program, as is the case here. See Def.’s Reply at 19. Plaintiffs
have thus failed to show that any procedural rights which might have been
conferred upon them by MILPERSMAN were violated by the Navy in the ERB
process.

3. Minimum Concepts of Basic Fairness Met

Plaintiffs have made reference in the complaint and their response brief to the

16
/ The personnel manual documents referenced by plaintiffs are attached to their
response brief as Exhibits I and J. Plaintiffs fail to cite any authority that supports their implicit
assumption that these MILPERSMAN provisions apply to the type of discharges at issue in this
case.

23
terms “due process” and “discrimination,” Compl. at 10; Pls.’ Resp. at 8, 26, but
have utterly failed to articulate a standard by which the court could measure
whether “minimum concepts of basic fairness” characterized the discharge
procedures challenged in this suit, Waller, 461 F.2d at 1276. With some difficulty,
the court has identified the constitutional rights that are obscurely woven into the
fabric of plaintiffs’ claims: due process protections provided by the Due Process
Clause of the Fifth Amendment to the United States Constitution, and, perhaps,
protection from discrimination provided by the equal protection component of that
clause. The court turns first to the right to due process.

a. Due Process

This court does not write on a clean slate as far as military discharges are
concerned – it is bound by the decisions of the Court of Claims and of the Federal
Circuit. The court notes, first, that stigma, such as that occasioned by a
dishonorable discharge, triggers a right to due process considerations that an
honorable discharge does not. See, e.g., Keef, 185 Ct. Cl. at 467-68 (stating that
“we will not permit the imposition of a stigma ‘without respect for even the most
elementary notions of due process of law’” (quoting Clackum, 296 F. 2d at 228)).
As defendant persuasively argues, however, the ERB process and the honorable
discharges resulting therefrom did not stigmatize plaintiffs. See Def.’s Mot. at 28-
29.

Plaintiffs’ protestation that their honorable discharges were stigmatizing is
unsupported by legal authority or by documentary evidence in the administrative
record. See Pls.’ Resp. at 13, 15, 26 (asserting that because superior performance
was one of the factors used to retain service-members, non-retention was
stigmatizing). The court is bound by Keef which clearly states that “[t]he argument
that a discharge prior to the expiration of a current term of enlistment necessarily is
a stigma can be summarily rejected.” 185 Ct. Cl. at 468. In that case, the
discharged service-member was barred from reenlistment by a code on his
discharge form, yet no stigma attached to his honorable discharge. Id. at 469; see
Vierrether, 27 Fed. Cl. at 364-65 (same). The inquiry into stigma typically focuses
on notations on the discharge form. E.g., Flowers v. United States, 80 Fed. Cl. 201,
224 (2008) (citations omitted). Plaintiffs have not alleged that their discharge forms
contain stigmatizing notations; plaintiffs, under Keef, have not shown that stigma
attached to their honorable discharges.

24
 Because no stigma attached to the discharges of these plaintiffs, due process
rights to notice and a hearing do not apply. See Keef, 185 Ct. Cl. at 468 (holding, in
that case, “that an honorable discharge for the convenience of the government . . . ,
prior to the expiration of an enlistment, without more, is within legally proper
bounds when effected without notice or a hearing”); see also Canonica v. United
States, 41 Fed. Cl. 516, 524 (1998) (stating that the Fifth Amendment “prevents the
military from discharging a service member without due process – but only in cases
where a ‘stigma’ would attach to the discharge” (citing Holley, 124 F.3d at
1469-70; Vierrether, 27 Fed. Cl. at 364-65)). Instead, plaintiffs were entitled to a
process which satisfied “minimum concepts of basic fairness.” Waller, 461 F.2d at
1276. The ERB process met this standard. In additional to the notice provided
plaintiffs, described supra, the Navy encouraged affected service-members to verify
the accuracy of the personnel records that would be reviewed by the ERB, and to
submit missing information for the ERB to consider. AR at 526-27. Furthermore,
each plaintiff received an in-person notification of their non-selection for retention.
Def.’s Mot. at 29 (citing AR at 569-71, 600, 604); Pls.’ Ex. F; Pls.’ Ex. G at 1. The
court concludes that plaintiffs were afforded a process that did not violate minimum
concepts of basic fairness.

b. Equal Protection

If plaintiffs indeed intend to advance a claim based on some violation of the
equal protection guarantees enshrined in the Fifth Amendment, the basis for their
claim remains obscure. The court reproduces a passage from the complaint that
appears to summarize the nature of plaintiffs’ equal protection claim:

That the selection process in itself was discriminatory in
that it targeted and directed the terminations against E4[]s,
E5s, E6s and E7s but further targeted only those in 31
specific career fields and those sailors and Plaintiffs who
were about to reach the 15 year of service or the
qualification of 15 years pension benefits.

The defendant also discriminated against the Plaintiffs by
mandating termination not only those within the 31 career
fields but further targeting only Plaintiffs in certain year
groups and “length of service cells,” . . . . The Plaintiffs

25
 were further discriminated against as the defendant
instituted promotions of lower ranked sailors into the
rankings the Defendant had terminated the Plaintiffs from.

Compl. at 10. In plaintiffs’ response brief, discrimination by the Navy in the ERB
process is again alleged:

This points to discrimination by the Navy carving out a
selected group of personnel on the doorstep of their 15
year pension acquisition and with the intent of acquiring
twenty (20) years.

The discrimination is no less heinous or disastrous to the
[a]ffected if it was discrimination because of budget
reasons rather than race, creed or color.

Pls.’ Resp. at 7. Plaintiffs provide no standard by which the court should determine
whether plaintiffs’ right to equal protection under the Fifth Amendment was
violated in this instance.

Defendant argues that plaintiffs have failed to establish that they are members
of a protected class, so as to bring a valid “prima facie case of discrimination
against the Government.” See Def.’s Mot. at 21 n.16 (citing Youssef v. F.B.I., 687
F.3d 397, 401 (D.C. Cir. 2012)). The court frames the issue somewhat differently.
The court must first determine whether plaintiffs’ equal protection claim is founded
upon a suspect classification. See, e.g., Harris v. McRae, 448 U.S. 297, 322 (1980)
(distinguishing between Fifth Amendment equal protection claims based on suspect
classifications such as race, and those which do not rely on race or other suspect
classifications) (citing Brown v. Board of Education, 347 U.S. 483 (1954)); Britell
v. United States, 372 F.3d 1370, 1380 (Fed. Cir. 2004) (citing McRae for the
distinction between claims alleging government action involving a suspect
classification, and other types of government action). The court must next
determine whether plaintiffs possessed a fundamental constitutional right to
continued employment with the Navy. See, e.g., Briggs v. Merit Sys. Prot. Bd., 331
F.3d 1307, 1317 (Fed. Cir. 2003) (“Heightened scrutiny is applicable only when a
law’s classification is drawn along suspect or quasi-suspect lines, such as race, or
when the law impinges upon a fundamental right.”) (citations omitted).

26
 Suspect classifications include race, gender and national origin. See, e.g.,
Berkley v. United States, 287 F.3d 1076, 1084 (Fed. Cir. 2002) (“It is . . . well
established that ‘[t]o state a claim for an equal protection violation, [plaintiffs] must
allege that a government actor intentionally discriminated against them on the basis
of race, national origin or gender.’” (quoting Hayden v. Nassau, 180 F.3d 42, 48 (2d
Cir. 1999))). Here, there has been no allegation that the ERB used race, national
origin or gender, or any other suspect or quasi-suspect class, to select plaintiffs for
non-retention. Indeed, the ERB members were instructed to not interpret the equal
opportunity guidance provided to them “as requiring or permitting preferential
treatment of any eligible or group of eligibles on the grounds of race, religion,
color, gender or national origin.” AR at 30, 274. Thus, the court concludes that
plaintiffs have not brought an equal protection claim that is founded on a suspect
classification, and, even if they had, the record shows no evidence of discrimination
based on a suspect classification.

Turning to whether plaintiffs possessed a fundamental constitutional right to
continued employment with the Navy, it is clear that no fundamental right in
continued federal employment exists. See, e.g., Puglisi v. United States, 564 F.2d
403, 409 (Ct. Cl. 1977) (stating that “the right to governmental employment is not
per se ‘fundamental’ in the constitutional sense”) (citations omitted); Brame v.
United States, 10 Cl. Ct. 252, 256 (1986) (“Federal employees do not have a
constitutionally protected property interest in continued federal employment.”
(citing Arnett v. Kennedy, 416 U.S. 134 (1974)). This principle applies as well to
service-members in the military branches. See, e.g., Paskert v. United States, 20 Cl.
Ct. 65, 77 (1990) (“Service members have no constitutional rights to remain on
active duty, and their rights are defined by the applicable statutes and regulations.”
(citing Alberico v. United States, 7 Cl. Ct. 165, 168-69 (1984), aff’d, 783 F.2d 1024
(Fed. Cir. 1986))). Thus, the court concludes that plaintiffs’ equal protection claim
rests neither on a suspect classification nor on a fundamental right which would
trigger heightened scrutiny of the ERB process.

Plaintiffs’ equal protection claim thus requires only rational basis review of
the ERB process. E.g., Briggs, 331 F.3d at 1317. The Federal Circuit has
succinctly described how a rational basis review is conducted:

On a rational basis review, a classification bears a strong
presumption of validity, and the burden of persuasion is

27
 on a challenger to show the absence of a rational basis.
[F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313
(1993)]. A rational basis is “any reasonably conceivable
state of facts” that support the classification. Id. Such
facts may be based on “rational speculation unsupported
by evidence or empirical data.” Id.

Id. at 1318. Furthermore, the court accords special deference to the military’s
personnel decisions. See, e.g., Woodward v. United States, 871 F.2d 1068, 1077
(Fed. Cir. 1989) (“Special deference must be given by a court to the military when
adjudicating matters involving their decisions on discipline, morale, composition
and the like, and a court should not substitute its views for the ‘considered
professional judgment’ of the military.”) (citations omitted). This court has
commented that rational basis review of military personnel decisions is both lenient
and deferential. See Boyer v. United States, 81 Fed. Cl. 188, 204-05 (2008) (citing
cases). The ERB process here survives rational basis review.17

As defendant persuasively argues, it was within the Navy’s discretion to
reduce force levels and to convert some but not all affected service-members to
other job specialties. Def.’s Mot. at 13-15, 21-22; Def.’s Reply at 14. Furthermore,
the record shows that the ERB process was rational in its inception and in its

17
/ The court acknowledges that there is potential tension between precedent foreclosing
review of the merits of a military discharge decision and precedent permitting review of equal
protection claims in a challenge to a military discharge decision. Compare Murphy, 993 F.2d at
874 (forbidding a review of the merits of discharge decisions), with Berkley, 287 F.3d at 1084
(reviewing military discharge decisions for equal protection violations). It is clear that equal
protection claims were considered in Berkley, and that racial and gender preferences in that case
were subject to strict scrutiny. 287 F.3d at 1091. This court has applied rational basis review to
an equal protection claim in the military discharge context where there was no suspect
classification at issue. Loomis v. United States, 68 Fed. Cl. 503, 521-22 (2005). From these
authorities, it appears that an alleged violation of constitutional rights, in some cases, permits
this court to review certain aspects of a military discharge that are not purely procedural. See,
e.g., Berkley, 287 F.3d at 1084 (considering whether a discharge policy was discriminatory);
Woodward, 871 F.2d at 1072 (noting that “[w]hile . . . the Secretary’s discretion . . . is generally
unfettered, employment actions claimed to be based on constitutionally infirm grounds are
nevertheless subject to judicial review”); see also Fisher, 402 F.3d at 1177 (explaining that the
court’s limited role in reviewing military personnel decisions is “to ensure that the decision is
made in the proper manner”).

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fulfillment of assigned tasks.18 It is of no consequence that some of the factual
underpinnings of the ERB process might have been erroneous. See Briggs, 331
F.3d at 1318. At a minimum, the facts adduced by the Navy were reasonably
conceived, and the predicted success of the ERB to address over-manning issues
was a rational speculation. See id. To the extent that plaintiffs raised an equal
protection challenge to their discharges, and to the extent the court may consider
such a claim, see supra note 17, the court finds no violation of the equal protection
guarantees in the Due Process Clause of the Fifth Amendment in this case.

CONCLUSION

Counts IV and VIII of the complaint, as well as any retirement pay claims,
independent constitutional claims or ERISA claims, are dismissed without prejudice
for lack of jurisdiction. Plaintiffs’ challenge to the merits of their discharges is
dismissed with prejudice for failure to state a claim, because this challenge is
nonjusticiable. Plaintiffs’ claim for back pay and allowances is dismissed with
prejudice based on the court’s review of the administrative record.

For the foregoing reasons, it is hereby ORDERED that:

(1) Defendant’s Motion to Dismiss, Or, in the Alternative, Motion for
Judgment Upon the Administrative Record, filed October 15, 2012, is
GRANTED;

(2) Plaintiff’s Motion to Certify Class Action, filed in two separate docket
entries on August 16, 2012, is DENIED as moot;

(3) Plaintiff’s Motion to Supplement the Administrative Record, filed
April 26, 2013, is DENIED;

18
/ Nothing in plaintiffs’ proposed supplements to the administrative record in this case
would alter the court’s determination that the ERB process survives deferential, rational basis
review. At most, these documents might show that the Navy erred, to some degree, in its
analysis of its staffing needs and in its predictions of the success of the ERB program. Such
errors, even if true, could not support a successful equal protection claim under the deferential,
rational basis review required here. See, e.g., Briggs, 331 F.3d at 1318; Woodward, 871 F.2d at
1077.

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(4) The Clerk’s Office is directed to ENTER final judgment in favor of
defendant, DISMISSING the complaint as follows:

(a) Counts IV and VIII of the complaint, as well as any retirement
pay claims, independent constitutional claims or ERISA claims,
are dismissed without prejudice for lack of jurisdiction;

(b) Plaintiffs’ challenge to the merits of their discharges is
dismissed with prejudice for failure to state a claim;

(c) Plaintiffs’ claim for back pay and allowances, based on the
court’s review of the administrative record, is dismissed with
prejudice;

(5) No costs.

/s/Lynn J. Bush
LYNN J. BUSH
Judge

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