Santana v. United States

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

CELESTE SANTANA,
Plaintiff-Appellant

v.

UNITED STATES,
Defendant-Appellee
______________________

2016-2435
______________________

Appeal from the United States Court of Federal
Claims in No. 1:14-cv-00689-NBF, Senior Judge Nancy B.
Firestone.
______________________

Decided: November 22, 2017
______________________

JOHN B. WELLS, Law Office of John B. Wells, Slidell,
LA, argued for plaintiff-appellant.

DOUGLAS GLENN EDELSCHICK, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee.
Also represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., STEVEN J. GILLINGHAM; DAWN M.
STEINBERG, Office of the Judge Advocate General, De-
partment of the Navy, Washington Navy Yard, DC.
2 SANTANA v. UNITED STATES

______________________

Before O’MALLEY, REYNA, and TARANTO, Circuit Judges.
O’MALLEY, Circuit Judge.
Celeste Santana alleges she was separated from the
Navy improperly and that the Court of Federal Claims
(“the Claims Court”) erred when it found that it lacked
jurisdiction over the bulk of Santana’s claim challenging
her separation. Santana v. United States, 127 Fed. Cl. 51,
57–62 (2016). Santana also objects to the Claims Court’s
entry of judgment in favor of the Navy on the limited
portion of her claim over which the court did exercise
jurisdiction. Id. at 62. For the reasons below, we find
that the Claims Court correctly dismissed most of Santa-
na’s complaint. We find separately that the Claims Court
should have dismissed the portion of Santana’s complaint
over which it exercised jurisdiction. We therefore affirm
in part and vacate and remand in part with instructions
to dismiss the part of Santana’s complaint over which the
Claims Court exercised jurisdiction.
I. BACKGROUND
A. Military Promotions
Once a naval officer reaches the rank of Lieutenant
Commander, a selection board, known as a promotion
board, must recommend any further promotions. See 10
U.S.C. §§ 611(a), 628(k). The second time a promotion
board does not select an officer for promotion, the officer
is typically discharged. Id. § 632(a). Such a discharge is
considered “an involuntary retirement or discharge for
purposes of any other provision of law.” Id. § 632(b). An
officer who has been passed over twice for promotion
nevertheless may remain in active service if a separate
selection board, called a continuation board, selects the
officer to continue in active service, which the continua-
SANTANA v. UNITED STATES 3

tion board may do “whenever the needs of the service
require.” Id. § 611(b).
The decisions of promotion boards and continuation
boards are subject to review within the military. If the
Secretary of the relevant military department finds
“material unfairness” in a promotion board’s decision not
to select a person for promotion, the Secretary may con-
vene a “special selection board” to determine whether the
person should be recommended for promotion. Id.
§ 628(b)(1). When a continuation board decides not to
retain an officer, that decision too is subject to correction
by a “special board” that the Secretary may convene. Id.
§ 1558(a), (b)(1), (c).
B. Santana’s Military Service
Santana served on active duty in the Navy for seven-
teen years until her honorable discharge in 2011. Santa-
na, 127 Fed. Cl. at 55. Santana was appointed to
Lieutenant Commander in 2004. In March 2009, a selec-
tion board considered Santana for promotion to Com-
mander. Id. The 2009 selection board considered
Santana’s two most recent fitness reports—performance
evaluations that were part of Santana’s military record—
from December 2007 and August 2008. Id. Both fitness
reports evaluated her as “promotable,” the third of five
possible grades, below the higher grades of “must pro-
mote” or “early promote.” Id. Her grades put Santana in
the bottom half of her peer group. Id. The March 2009
selection board did not recommend Santana for promo-
tion. Id.
In mid-2009, Santana was deployed to Afghanistan,
where she served as an environmental health officer on
Marine Corps bases and reported directly to a Marine
Corps colonel. Santana alleges that she discovered and
complained about several serious health deficiencies at
some of the bases where she served, including violations
of burn pit regulations and improper storage of water
4 SANTANA v. UNITED STATES

bottles, but her complaints were ignored. Id. at 54. In
late October 2009, Santana was redeployed back to the
United States. At the time, Santana’s records indicated
that she had been “detached”—that is, sent back to the
United States from her deployment—“due to loss of
confidence and ability to perform assigned duties.” J.A.
90.
In November 2009, “on [the] occasion” of her detach-
ment, Santana received a fitness report from the Marine
Corps colonel to whom she reported in Afghanistan. J.A.
89–90. This fitness report evaluated Santana’s perfor-
mance from May 1, 2009 until November 2, 2009. The
fitness report recognized her “[t]echnical acumen,” but it
nevertheless gave Santana a grade of “significant prob-
lems” and said that she “[l]ack[ed] ability to establish
cooperative working environment,” that her “[m]ission
accomplishment and initiative skills [were] lacking,” and
that she “[l]ack[ed] ability to motivate or lead subordi-
nates towards accomplishing goals.” Id.
Santana received two other fitness reports in early
2010, both of which raised concerns with aspects of her
performance. Santana, 127 Fed. Cl. at 55. The first was
signed in January 2010 by a naval officer who evaluated
Santana’s performance from August 15, 2008, until Octo-
ber 31, 2009, a period which included her deployment in
Afghanistan. Id. at 55–56. That fitness report graded
Santana “promotable”—again in the bottom half of her
peers. Id. It noted that Santana’s “inability to establish
mutually beneficial working relationships with those both
senior and junior to her has impaired her effectiveness.”
Id. The second fitness report was signed in February
2010 by the same naval officer and evaluated Santana’s
performance after her return to the United States, from
November 1, 2009, until February 28, 2010. Id. at 55.
The February 2010 fitness report graded Santana as
having “significant problems” and was overwhelmingly
negative. Id. at 56.
SANTANA v. UNITED STATES 5

In March 2010, a selection board for the second time
considered Santana for promotion to Commander. Id. at
55. The selection board considered Santana’s fitness
reports from December 2007 and August 2008; the three
subsequent fitness reports, from November 2009, January
2010, and February 2010; and other documents that
Santana had submitted. Id. The 2010 selection board did
not select Santana for promotion. Id. at 55–56. Santana
did not ask the Secretary to convene a special selection
board to review the fairness of that decision.
After Santana was not selected for promotion for the
second time, a continuation board convened to decide
whether she could continue her active duty service. Id. at
56. The continuation board had before it the same docu-
ments that the 2009 and 2010 promotion boards consid-
ered, including the fitness reports discussed above. Id.
The continuation board did not recommend Santana for
continuation, and Santana was honorably discharged. Id.
C. Procedural History
In December 2009, Santana filed a whistleblower
complaint with the Office of the Inspector General of the
Department of Defense (“DoD IG”) pursuant to the Mili-
tary Whistleblower Protection Act (“MWPA”) alleging that
the negative November 2009 fitness report was retaliation
for her protected communications about the environmen-
tal hazards she had found in Afghanistan. Santana, 127
Fed. Cl. at 55. The DoD IG determined that there was
“insufficient evidence of reprisal to warrant further in-
quiry” and closed Santana’s case in July 2010. Id. The
DoD IG found that Santana had been detached from her
deployment in Afghanistan “due to substandard perfor-
mance and received an adverse Fitness Report according-
ly.” Id. The DoD IG informed Santana that she could
petition the Board for Correction of Naval Records
(“BCNR”) to seek further consideration of the matter. Id.
6 SANTANA v. UNITED STATES

After her discharge took effect in January 2011, San-
tana petitioned the BCNR for relief, arguing that the
discharge was a “wrongful separation” because she “was
unjustly denied continuation on [active duty] despite
needing less than three years to reach retirement eligibil-
ity.” J.A. 167. Santana asked to be reinstated without
any break in service and for a special board to revisit the
continuation board’s decision. In March 2012, however,
Santana withdrew her petition, citing a lack of “confi-
dence in the BCNR’s ability or willingness to properly
correct injustice.” J.A. 103. The BCNR administratively
closed Santana’s case.
In March 2014, Santana sent a letter through her
counsel to the Secretary of the Navy (“the Secretary”),
again asking that she be retroactively restored to active
duty and that her military record be corrected. The letter
reiterated Santana’s belief that “any attempt to seek
relief from the [BCNR] would be futile.” J.A. 118. The
Secretary forwarded the letter to the Navy’s Office of the
Judge Advocate General (“Navy JAG”), which responded
by directing Santana to the BCNR. Santana again de-
clined to seek relief through the BCNR, and the Navy
JAG informed Santana that he would not forward the
request directly to the Secretary. J.A. 112–15.
In August 2014, Santana filed a complaint in the
Court of Federal Claims pursuant to the Military Pay Act
(“MPA”). Complaint, Santana v. United States, 127 Fed.
Cl. 51, ECF No. 1. The complaint alleged that the No-
vember 2009 fitness report was “in reprisal for her failure
to cover up the environmental health problems [in Af-
ghanistan] and for her reports of those health and safety
issues outside of the chain of command.” Id. at ¶ 124; see
also id. at ¶¶ 4, 118–125. Santana claimed that the
fitness report, as well as other actions—most importantly
the detachment from her deployment in Afghanistan and
her separation from active duty—were arbitrary and
capricious and violated her rights under the First
SANTANA v. UNITED STATES 7

Amendment, military regulations, and Department of
Defense directives implementing the MWPA. Id. at
¶¶ 170–188. These actions, Santana claimed, negatively
impacted her chances for promotion and ultimately re-
sulted in her termination. While her action before the
Claims Court was pending, Santana filed a request with
the Secretary, again asking that a special board be con-
vened to review the March 2010 decision of the continua-
tion board. Santana, 127 Fed. Cl. at 56.
Santana’s complaint also alleged that the November
2009 fitness report “indicat[ed] she was detached for
cause” from her deployment in Afghanistan, but that the
purported detachment for cause did not satisfy applicable
military regulations. Complaint at ¶¶ 118–124. 1 Santa-
na further alleged that this detachment for cause was,
like the November 2009 fitness report, “in reprisal for”
her whistleblowing activities. Id. at ¶ 124.
To remedy these violations, Santana sought rein-
statement to active duty at her previous rank, effective

1 A detachment for cause “is the administrative re-
moval of an officer . . . from the officer’s current duty
assignment before their normal transfer or planned
rotation date.” United States Navy, Military Personnel
Manual (MILPERSMAN) 1611-020, Officer Detachment
for Cause (Mar. 30, 2007). It “is one of the strongest
administrative measures used in the case of officers” and
“has a serious effect on the officer’s future naval career,
particularly with regard to promotion, duty assignment,
selection for schools, and special assignment.” Id. Mili-
tary regulations therefore lay out a number of steps to be
taken before a detachment for cause request is initiated,
including “[c]ommand counseling, guidance, training, and
appropriate use of fitness reports,” a “formal written
notification to the officer” soliciting the officer’s response,
and a letter to Naval Personnel Command. Id.
8 SANTANA v. UNITED STATES

the date of her discharge, with all back pay and allowanc-
es. Id. at 30–31. Santana also asked the Claims Court to
remove from her military record the adverse fitness
reports and all references to her detachment for cause and
the failure to select her for promotion. Id. Santana
additionally sought a special selection board. Id. at 30.
In June 2016, the Claims Court dismissed most of
Santana’s claim for lack of jurisdiction. Santana, 127
Fed. Cl. at 53–55. The court noted that the MWPA sets
forth “a fairly elaborate administrative process” for han-
dling whistleblower complaints and that the Claims Court
had no jurisdiction over MWPA claims. Id. at 57–58
(quoting Klingenschmitt v. United States, 119 Fed. Cl.
163, 185 (2014)). Relying on its own precedent in
Klingenschmitt and other persuasive authority, the court
held that it similarly lacked jurisdiction over “a whistle-
blower claim under the guise of a Military Pay Act claim.”
Id. at 59.
The Claims Court also found that it lacked jurisdic-
tion over Santana’s challenges to the decisions of the
selection and continuation boards because she had failed
to exhaust mandatory administrative remedies. Id. at
59–62. Because Santana’s most recent request for a
special board to review the continuation board decision
was still pending, the court held that it could not yet
review the merits of the continuation board’s decision. Id.
at 61–62.
Although the court found that it lacked jurisdiction
over Santana’s non-promotion and continuation claims, it
construed Santana’s complaint to raise a separate claim
that the January 2010 fitness report was effectively a
detachment for cause for which the Navy did not follow
proper procedures. Id. at 62. The court held that it did
have jurisdiction over this claim, but nevertheless reject-
ed Santana’s contention on the merits. Id. The court
found that “the January 2010 fitness report did not oper-
SANTANA v. UNITED STATES 9

ate as a” detachment for cause because Santana was not
discharged until after the selection board and continua-
tion board had reviewed her fitness reports in March
2010. Id. The court granted the government’s motion for
judgment on the administrative record with respect to
this claim. Id.
This appeal followed. The parties dispute whether
the Claims Court had jurisdiction over Santana’s com-
plaint, but we have jurisdiction over this appeal pursuant
to 28 U.S.C. § 1295(a)(3).
II. DISCUSSION
The Claims Court found that it lacked jurisdiction
over Santana’s claim that the Navy retaliated against her
by deciding not to promote or retain her on active duty.
But the court found that it did have jurisdiction over
Santana’s claim that there were procedural defects in her
alleged detachment for cause before the court granted
judgment on the administrative record to the United
States.
“Decisions dismissing a complaint and interpretations
of statutes by the Court of Federal Claims are questions
of law and reviewed by this court de novo.” Ainslie v.
United States, 355 F.3d 1371, 1373 (Fed. Cir. 2004) (cita-
tions omitted). We also review de novo whether the
Claims Court possesses jurisdiction over a claim. Navajo
Nation v. United States, 631 F.3d 1268, 1272 (Fed. Cir.
2011) (citing W. Co. v. United States, 323 F.3d 1024, 1029
(Fed. Cir. 2003)). We consider separately the portion of
Santana’s claim regarding the decisions of the promotion
and continuation boards and the portion regarding the
alleged detachment for cause.
A. Promotion and Continuation Decisions
As discussed above, the 2010 continuation board con-
vened under 10 U.S.C. § 611(b). When a continuation
board decides not to retain an officer, that decision is
10 SANTANA v. UNITED STATES

subject to correction by a “special board” that the Secre-
tary may convene. 10 U.S.C. § 1558(a), (b)(1), (c). “A
person seeking to challenge an action or recommendation
of a selection board . . . is not entitled to relief in any
judicial proceeding unless the action or recommendation
has first been considered by a special board under this
section or the Secretary concerned has denied the conven-
ing of such a board for such consideration.” Id.
§ 1558(f)(1). On the other hand, the decision of a special
board, or the Secretary’s determination not to convene a
special board, is subject to judicial review. Id.
§ 1558(f)(2)–(3). In other words, § 1558(f) bars a member
of the military from seeking judicial relief from the deci-
sion of a continuation board until the Secretary has
convened a special board to review the decision or has
decided not to convene one.
The Claims Court correctly found that this provision
precluded it from reviewing Santana’s claims. Santana
argues that, because she brought her claim under the
MPA, she objects only to the deprivation of pay, not the
decision of the continuation board. But the primary
remedies Santana sought—retroactive reinstatement to
active service and back pay—require an implicit determi-
nation that the continuation board was incorrect when it
recommended her separation. Santana, in effect, seeks to
overturn the decision of the continuation board. Santana
therefore was “[a] person seeking to challenge an action or
recommendation” of a continuation board “in [a] judicial
proceeding” within the meaning of § 1558(f)(1). Section
1558 barred Santana’s claim until she exhausted admin-
istrative remedies. 2

2 10 U.S.C. § 628(h)(1) precludes judicial review of a
“claim based to any extent on the failure of a person to be
selected for promotion by a promotion board” unless “the
person has first been referred by the Secretary concerned
SANTANA v. UNITED STATES 11

Notably, the Claims Court held that, “under . . .
§ 1558, the court lacks jurisdiction to review the decision
of a . . . continuation board unless the decision is first
considered by a special selection board.” Santana, 127
Fed. Cl. at 60 (emphasis added). The Claims Court and at
least two federal district courts have held that the ex-
haustion requirement of § 1558 is jurisdictional. See
Crumley v. United States, 122 Fed. Cl. 803, 805 (2015)
(interpreting § 1558 to provide that “this court is without
jurisdiction to review a decision of a ‘selection board’ if the
individual has not first sought review by a ‘special
board’”); In re Navy Chaplaincy, 850 F. Supp. 2d 86, 102–
04 (D.D.C. 2012) (finding that § 1558(f) “limits a court’s
jurisdiction over those actions . . . that seek judicial
review of a decision or recommendation” by a continuation
board); Byrum v. Winter, 783 F. Supp. 2d 117, 123–25
(D.D.C. 2011) (dismissing a complaint for lack of subject
matter jurisdiction where a plaintiff had failed to satisfy
the exhaustion requirements of § 1558(f)); Cotrich v.
Nicholson, No. 6:06-cv-1772, 2006 WL 3842112, at *2–3
(Dec. 19, 2006) (same). Santana does not object to the
Claims Court’s characterization of § 1558 as jurisdiction-
al.
A statute is jurisdictional in character only when “the
Legislature clearly states that a threshold limitation on a
statute’s scope shall count as jurisdictional.” Arbaugh v.
Y & H Corp., 546 U.S. 500, 515–16 (2006). The Supreme
Court has cautioned against “mischaracteriz[ing] claim-

to a special selection board convened under this section.”
The United States argues that this provision also bars
review of Santana’s claim. The Claims Court did not
decide this issue because it found that § 1558 barred
Santana’s claim. Santana, 127 Fed. Cl. at 61. While the
government’s argument appears well-taken, we choose
not to reach it for the first time on appeal.
12 SANTANA v. UNITED STATES

processing rules or elements of a cause of action as juris-
dictional limitations.” Reed Elsevier, Inc. v. Muchnick,
559 U.S. 154, 161 (2010). The distinction is important;
jurisdictional defects are not subject to waiver, forfeiture,
or equitable tolling, and may be raised at any time,
whereas claim-processing rules may be waived, forfeited,
or extended when appropriate. Hamer v. Neighborhood
Hous. Servs. of Chi., No. 16-658, slip op. at 2–3 (Nov. 8,
2017) (citations omitted).
We do not decide here whether § 1558(f) poses a juris-
dictional bar to Santana’s claim. Even if the exhaustion
of administrative remedies is not a jurisdictional prereq-
uisite, it is clearly an element of Santana’s claim. Her
failure to assert that she has complied with that require-
ment is, thus, a defect in her claim that renders it inade-
quate. Other than her reference to “futility”—which we
discuss below—Santana has not argued that the Navy
waived the requirements of § 1558(f), or that those re-
quirements should be forgiven. Indeed, Santana knew of
the obligation to seek administrative review as part of the
§ 1558 process, but affirmatively chose not to take that
mandatory step. She did so even though the Navy invited
her to seek review by the BCNR, which could have cor-
rected her military record and recommended the conven-
ing of a special board to revisit the continuation board’s
decision. 10 U.S.C. § 1552; id. § 1558(a), (b)(1)(B), (c).
Thus, even if the Claims Court could have exercised
jurisdiction over Santana’s primary claim, it would have
had to dismiss that claim since Santana did not assert—
and concedes she could not assert—that she exhausted
her administrative remedies. A remand so that the
Claims Court can re-characterize the basis for dismissal
would, thus, be an unnecessary exercise. We hold only
that the Claims Court correctly dismissed Santana’s claim
for her failure to exhaust applicable administrative reme-
dies.
SANTANA v. UNITED STATES 13

Citing our decision in Martinez v. United States, 333
F.3d 1295 (Fed. Cir. 2003) (en banc), Santana argues that
exhaustion is not required for claims under the MPA.
Martinez does not stand for that broad proposition. We
held in Martinez that a cause of action for wrongful dis-
charge immediately accrues upon the discharge. Id. at
1304. We rejected the argument that the claim does not
accrue until the service member has exhausted adminis-
trative remedies. Id. In Martinez, however, we contem-
plated a statutory scheme with “a permissive
administrative remedy,” which “a plaintiff is not required
to exhaust . . . before bringing suit.” Id. We observed
that, by contrast, “if a dispute is subject to mandatory
administrative proceedings, the plaintiff’s claim does not
accrue until the conclusion of those proceedings.” Id.
(citations omitted). Santana does not dispute that the
administrative procedure described in § 1558 is mandato-
ry with respect to judicial review of continuation board
decisions. Martinez therefore does not govern this case.
Santana also complains that it would have been futile
for her to seek review in the BCNR. The cases that
Santana cites for this futility argument do not support a
finding of futility in these circumstances, however. They
suggest only that the exhaustion requirement “does not
include the performance of clearly useless acts.” Baxter v.
Claytor, 652 F.2d 181, 185 (D.C. Cir. 1981); see also
McNeese v. Bd. of Educ. for Cmty. Unit Sch. Dist. 187, 373
U.S. 668, 674–76 (1963) (declining to require exhaustion
of a state administrative procedure that could not have
remedied the alleged constitutional violation). As dis-
cussed above, Santana could have obtained complete
relief through the BCNR, which could have initiated the
special board procedure set forth in § 1558. Santana’s
belief that the BCNR and the special boards would not
have been receptive to her claims does not render the
available administrative remedies “clearly useless” or
otherwise excuse the statutory exhaustion requirement.
14 SANTANA v. UNITED STATES

See Gilmore v. Weatherford, 694 F.3d 1160, 1169 (10th
Cir. 2012) (requiring individuals to seek administrative
relief “even when the agency is unlikely to grant the relief
requested”); UDC Chairs Chapter, Am. Ass’n of Univ.
Professors v. Bd. of Trustees of Univ. of D.C., 56 F.3d
1469, 1475 (D.C. Cir. 1995) (“The mere probability of
administrative denial of the relief requested does not
excuse failure to pursue administrative remedies; rather,
plaintiffs must show that it is certain that their claim will
be denied.” (internal quotation marks omitted)).
Santana observes finally that, after the Claims Court
issued its decision, the Secretary denied her request for a
special board under § 1558. ECF No. 42. She therefore
urges us to deem the exhaustion requirement satisfied.
But when Santana filed her complaint and when the
Claims Court dismissed it, she had not met the prerequi-
sites for review in the Claims Court. 3 That court there-
fore correctly dismissed Santana’s claim. 4
B. Detachment for Cause
The Claims Court found that it had jurisdiction over
Santana’s claim regarding her alleged detachment for
cause, but it found for the United States on the merits.
Santana, 127 Fed. Cl. at 62. The court characterized

3 Santana has filed a second case before the Claims
Court that, she alleges, does not suffer from this defect—
i.e., that all administrative remedies relating to her claim
have been exhausted. Complaint, Santana v. United
States, No. 16-1703 (Fed. Cl. Dec. 28, 2016), ECF No. 1.
The Claims Court stayed the second case pending our
decision in this appeal. Order, Santana v. United States,
No. 16-1703 (Fed. Cl. Jan. 5, 2017), ECF No. 7.
4 We do not reach the Claims Court’s holding that it
lacked jurisdiction because Santana’s claims fell under
the MWPA. Santana, 127 Fed. Cl. at 57–59.
SANTANA v. UNITED STATES 15

Santana’s complaint as “argu[ing] that the January 2010
fitness report was in effect a detachment for cause (‘DFC’)
and that the Navy did not follow proper procedures for
issuing a DFC.” Id. 5 The court held “that the January
2010 fitness report did not operate as a DFC” and there-
fore rejected her objection on this basis. Id.
Santana argues that the court misunderstood her
claim. Santana alleged in her complaint that her de-
tachment from her unit in Afghanistan was a detachment
for cause and that it violated the applicable military
regulations by failing to accord her the procedural protec-
tions that should have accompanied such a detachment.
Complaint at ¶¶ 118–124. To support this allegation,
Santana cited the November 2009 fitness report, which
indicated that it was “[s]ubmitted on occasion of [Santa-
na’s] detachment due to loss of confidence and ability to
perform assigned duties.” J.A. 90. Santana argues that
the phrasing of this fitness report demonstrates that her
detachment from her deployment in Afghanistan was, in
actuality, a detachment for cause. Santana explains that,
contrary to the interpretation by the Claims Court, this
part of her complaint had nothing to do with the January
2010 fitness report or her eventual separation.
Regardless of how Santana characterizes her claim,
the Claims Court could not grant her relief. The only
evidence Santana cites to support her claim that she was
detached for cause is the November 2009 fitness report.

5 The Claims Court also referred to “Santana’s alle-
gations that her separation was a detachment for cause.”
Santana, 127 Fed. Cl. at 55, 62 (emphasis added). Santa-
na points out the distinction between her separation—her
discharge from active service—and her detachment from
her posting in Afghanistan. The court’s actual analysis,
however, focused on the fitness report and not Santana’s
eventual separation from the Navy. See id. at 62.
16 SANTANA v. UNITED STATES

Santana identifies no harm flowing from the alleged
detachment for cause other than the effect on her service
record and her eventual separation, and she seeks no
remedy aside from the correction of the offending fitness
report and reinstatement. Santana’s claim challenging
her alleged detachment for cause therefore is subsumed
within her claim challenging her separation. The Claims
Court correctly determined that the exhaustion require-
ment precluded the latter claim, and Santana failed to
state a claim for relief on the former. We therefore vacate
the judgment of the Claims Court and remand with
instructions to dismiss this portion of Santana’s claim.
See Navajo Nation, 631 F.3d at 1269.
III. CONCLUSION
For the foregoing reasons, we affirm in part and va-
cate and remand in part. We affirm the Claims Court’s
dismissal of the portion of Santana’s claim related to the
Navy’s non-promotion and continuation decisions. We
vacate and remand to the Claims Court with instructions
to dismiss the portion of Santana’s claim related to the
alleged detachment for cause.
AFFIRMED IN PART, VACATED AND
REMANDED IN PART