           In the United States Court of Federal Claims
                                           No. 11-207C
                                    Filed: November 13, 2019


 IAIN D. PEDDEN,
                                                          Keywords: Statutory
                     Plaintiff,                           Interpretation; Legislative
                                                          Purpose; Arbitrary and
 v.                                                       Capricious; Promotion;
                                                          Remand; 10 U.S.C. § 12207;
 UNITED STATES,                                           RCFC 12(b)(6); Reported
                                                          Opinion
                    Defendant.


Eric Sebastian Montalvo, Federal Practice Group, Washington, D.C., for the plaintiff.

Michael D. Austin, Commercial Litigation Branch, Civil Division, U.S. Department of Justice,
Washington, D.C., LT Tyson Peter Marx, USN, Judge Advocate General’s Corps, Department of
the Navy, of counsel.

                                  MEMORANDUM OPINION

HERTLING, Judge

        Marine Corps Judge Advocate Lieutenant Colonel Iain D. Pedden sues the United States,
acting through the Department of the Navy’s Board for Correction of Naval Records (“BCNR”)
and the Marine Corps, for the pay and allowances he would have received had the Marine Corps
promoted him to the rank of captain earlier than it did. Statute and Department of Defense
regulations require the Marine Corps to credit new judge advocates with “constructive service”
for part of the time they spent in law school. Lt. Col. Pedden alleges that the Marine Corps
misapplied this constructive service credit (“CSC”) in a way that delayed his consideration for
promotion to captain by one year, consequently conferring on him a lower lineal placement,
delaying his subsequent promotions, and thereby reducing his pay.

        The defendant has moved to dismiss the case under Rule 12(b)(6) of the Rules of the
Court of Federal Claims (“RCFC”) for failure to state a claim or, in the alternative, for judgment
on the administrative record under RCFC 52.1. (ECF 69.) The plaintiff has cross-moved for
judgment on the administrative record and to supplement the administrative record. (ECF 73.)

       For the following reasons, the defendant’s motion to dismiss under RCFC 12(b)(6) is
granted in part: Counts I and II of the Amended Complaint and Count IV of the Supplemental
Complaint are dismissed. The defendant’s motion is denied as to Count III of the Amended
Complaint. The plaintiff’s motion for judgment on the administrative record under RCFC 52.1 is
denied in part and stayed in part. The decision of the BCNR is vacated, and the case is remanded
for further proceedings. 1

I. BACKGROUND

        A Department of the Navy policy applied CSC to Lt. Col. Pedden’s service record after a
selection board had already selected candidates for promotion to captain. The plaintiff was
promoted to captain more than a year later by a board that could have promoted him without the
plaintiff having been awarded CSC. The plaintiff has sought since 2005 to backdate his promotion
to captain as part of the lawful award of his CSC, but the BCNR found that his award of CSC
complied with the governing statutes and regulations.

       A. Facts

        In March 2001, the plaintiff enlisted in the Marine Corps through the Platoon Leader’s
Course—Law. On October 13, 2001, after completing Officer Candidate School, he was
commissioned as a second lieutenant in the Marine Corps Reserve with Military Occupational
Specialty designation 4401, student judge advocate. At the time of his commissioning, the
plaintiff had completed two years of law school. He graduated from law school in 2002 and was
admitted to the Illinois Bar in March 2003. He reported to The Basic School in June 2003,
graduating in December 2003. The administrative record does not disclose why it took the
Marine Corps more than a year after the plaintiff graduated from law school to assign him to The
Basic School, which the plaintiff had to complete before being assigned to the Naval Justice
School (“NJS”). During oral argument, the plaintiff asserted that the date of assignment of new
judge advocates to The Basic School was random, and the defendant did not rebut that assertion.

       Based on his time in grade as a second lieutenant, the plaintiff was promoted on October
13, 2003, to first lieutenant during his time at The Basic School.

       Following the plaintiff’s completion of The Basic School, he reported in January 2004 to
the NJS to attend the Basic Lawyer Course.

         In February 2004, while the plaintiff was attending the NJS Basic Lawyer Course, the
Marine Corps convened a selection board pursuant to 10 U.S.C § 611(a) to recommend eligible
first lieutenants for promotion to captain during Fiscal Year (“FY”) 2005. The plaintiff was not
considered for promotion by this selection board because, when it convened, his date-of-rank as
first lieutenant of October 13, 2003, was below the zone of consideration for promotion to
captain.

        That same month, while attending the NJS Basic Lawyer Course, the plaintiff was
notified that “[u]pon designation as a Marine Corps judge advocate following graduation from


       1
        Although the plaintiff titled his motion as including a request to supplement the
administrative record, he neither explained what materials he was seeking to include in the
administrative record nor mustered any argument regarding that aspect of his motion.
Accordingly, the Court deems that aspect of the motion to have been waived.


                                                2
Naval Justice School,” he would receive CSC, which would have the effect of advancing him on
the lineal list as if he had been promoted to first lieutenant on October 13, 2001, and treating
October 13, 1999, as his initial commissioning date. The notification also stated that CSC is
granted “to Marine Corps judge advocates to determine lineal position, permanent grade,
seniority in permanent grade, and eligibility for promotion.” Finally, the notification specified
that “[CSC] commences on the date that your lineal adjustment is entered into the Manpower
Management System . . . following your designation as a Marine Corps judge advocate upon
graduation from Naval Justice School and acceptance of this lineal adjustment.” (Suppl. Compl.
¶ 9, ECF 61 (ellipsis in original).) On February 25, 2004, the plaintiff acknowledged and
accepted the award of CSC, his lineal position, and the appointment as described in the
notification.

        On March 5, 2004, Lt. Col. Pedden graduated from the NJS and was designated a Marine
Corps judge advocate. Pursuant to the award of CSC, the Marine Corps later changed the
plaintiff’s commissioning date from 2001 to 1999, and his first-lieutenant date-of-rank from
2003 to 2001. The Marine Corps also advanced the plaintiff on the lineal list, changing his lineal
control number from 07256000 to 04566500.

       Had the Marine Corps applied CSC to the plaintiff’s record before the February 2004 (FY
2005) selection board was convened, the plaintiff would have been eligible for consideration for
promotion to captain. The plaintiff alleges that his promotion to captain would have been
consistent with the FY 2005 board’s results. (Am. Compl. ¶ 31.)

        Almost a year later, in February 2005, the FY 2006 Marine Corps captain-selection board
convened and considered and selected Lt. Col. Pedden for promotion to captain as the second of
941 Marine officers promoted to captain that year. The first lieutenants promoted by the FY
2006 board had dates of rank as late as December 2003. Lt. Col. Pedden’s date-of-rank prior to
the award of CSC was October 2003. The FY 2006 board’s consideration of dates-of-rank more
recent than the plaintiff’s actual, non-constructive date-of-rank suggests that even without CSC,
Lt. Col. Pedden would have been promoted to captain by the FY 2006 board. (See AR 72.)
Relative to the most junior officer promoted by the same FY 2006 promotion board, Lt. Col.
Pedden lost 533 days of seniority when he was promoted to captain. (AR 211.)

       B. Governing Law

               1. Marine Corps Promotion Process

        Promotions of Marine Corps officers to the ranks of captain and above, through brigadier
general, are recommended by a selection board. 10 U.S.C. § 611(a). To be considered for
promotion by a selection board, officers must generally have spent a specific amount of time in a
rank (the “time-in-grade requirement”). 10 U.S.C. § 623.

        Upon the approval by the President under 10 U.S.C. § 618 of the report of a selection
board, “the Secretary of the military department concerned shall place the names of all officers
approved for promotion within a competitive category on a single list for that competitive
category, to be known as a promotion list, in the order of the seniority of such officers on the
active duty list . . . .” 10 U.S.C § 624(a)(1). Thereafter, with some exceptions not relevant to


                                                3
this case, “officers on a promotion list for a competitive category shall be promoted to the next
higher grade when additional officers in that grade and competitive category are needed.
Promotions shall be made in the order in which the names of officers appear on the promotion
list and after officers previously selected for promotion in that competitive category have been
promoted.” 10 U.S.C. § 624(a)(2). Appointments to the rank of captain do not require Senate
confirmation. 10 U.S.C. § 624(c).

               2. Statute Requiring Constructive Service Credit

        To attract officers with advanced professional degrees, 10 U.S.C. § 12207 (“the CSC
statute”) provides constructive service to officers for their advanced education, as follows:

               Under regulations prescribed by the Secretary of Defense, a person
               who is receiving an original appointment as a reserve commissioned
               officer (other than a commissioned warrant officer) of the Army,
               Navy, Air Force, or Marine Corps, or a designation in, or an
               assignment to, an officer category in which advanced education or
               training is required and who has advanced education or training,
               shall be credited with constructive service for such education,
               training, or experience . . .

10 U.S.C. § 12207(b)(1).

        The statute further provides that any such constructive service “shall be credited at the
time of the original appointment of the officer or assignment to or designation in an officer
category in which advanced education or training or special experience is required.” 10 U.S.C. §
12207(b)(4).

        The statute goes on to specify that this constructive service may only be used to
determine the officer’s “(1) initial grade as a reserve officer; (2) rank in grade; and (3) service in
grade for promotion eligibility.” 10 U.S.C. § 12207(e). Finally, the statute provides that “[t]he
grade and position on the reserve active-status list of a person receiving an appointment as a
reserve officer who at the time of appointment is credited with service under this section shall be
determined under regulations prescribed by the Secretary of Defense based upon the amount of
service credited.” 10 U.S.C. § 12207(f).

               3. Regulations Implementing Constructive Service Credit

       The Marine Corps is part of the Department of the Navy, which in turn is part of the
Department of Defense. The CSC statute is implemented through a Department of Defense
Directive: Service Credit for Commissioned Officers, DoDD 1312.3 (1996) (hereinafter “the
Defense Directive”). The Defense Directive is implemented for Marine Corps judge advocates
by a Secretary of the Navy Instruction: Designation of Officers of the Regular Marine Corps and




                                                  4
Marine Corps Reserve as Marine Corps Judge Advocates, SECNAVINST 1120.9A (1988)
(hereinafter “the Navy Instruction”). 2

                      a. The Defense Directive

        DoDD 1312.3 “implement[ed] Section 12207 of [Title 10] to establish policies and
procedures governing the granting of service credit to persons upon original appointment,
designation, or assignment as a Reserve commissioned officer, except those in the health
professions.” DoDD 1312.3 § 1.3. The Directive provides that “[i]t is the policy of the
Department of Defense that the award of service credit to any person being appointed, assigned,
or designated as a commissioned officer in an officer category shall be equitably determined to
establish an appropriate appointment grade and date of rank relative to other officers in the same
competitive category.” DoDD 1312.3 § 4.1. The Directive further provides “[t]he entry grade
and date of rank or promotion service credit in grade of a commissioned officer (other than a
health professional officer) shall be determined by the entry grade credit awarded upon
appointment. The entry grade credit that is awarded shall be the sum of the prior commissioned
service allowed and the amount of constructive service credit allowed.” DoDD 1312.3 § 4.2.

       CSC, insofar as relevant to this case, is covered in DoDD 1312.3 §§ 4.2.2 and 4.2.2.2,
which read:

               4.2.2 Constructive Service Credit. The purpose of constructive
               service credit is to provide grade and date of rank comparability for
               a person who begins commissioned service after obtaining the
               additional education, training, or experience required for
               appointment, designation, or assignment as a commissioned officer
               in a professional field relative to a contemporary who began
               commissioned service immediately after obtaining a baccalaureate
               degree. Constructive service credit shall be determined in
               accordance with the following guidelines.

               4.2.2.2. Periods of time spent in an active status as a commissioned
               officer or on active duty may not be counted when computing
               constructive service credit, except the Secretary of the Military
               Department concerned may award constructive service credit for
               advanced education or an advanced degree when an officer
               completes the advanced education, or receives the advanced degree
               in an active status or while on active duty in less than the number of
               years normally required to complete such advanced education or
               receive such advanced degree. Constructive service credit may be
               awarded only if such education or advanced degree is required as a

       2
          DoDD 1312.3 was superseded by DoDD 1312.03 on October 6, 2006, but it was in
effect at the time relevant to this case.




                                                 5
               prerequisite for appointment as a commissioned officer in a
               particular officer category, and only to the extent that the period of
               time normally required to complete such advanced education or
               receive such advanced degree exceeds the actual number of years in
               which the officer obtained such advanced education or degree while
               a commissioned officer in an active status or on active duty.

                      b. The Navy Instruction

       The award of CSC and the amount awarded to a qualified officer in the Marine Corps are
governed by paragraph 8 of SECNAVINST 1120.9A.

       As relevant to this case, SECNAVINST 1120. 9A ¶ 8c provides:

               c. Platoon Leaders Class (Law) Program, Officer Candidate (Law)
               Program, Law Education Program, and Excess Leave Program. An
               officer commissioned through other than the Direct Commissioning
               Program, such as through the Platoon Leaders Class (Law) Program
               or Officer Candidate (Law) Program or an officer participating in
               the Law Education Program or Excess Leave Program shall be
               granted Entry Grade Credit only if entitled to constructive service
               credit under subparagraph 8c(1) or 8c(2).

       Specific to this case is SECNAVINST 1120.9A ¶ 8c(3) which further provides:

               (3) An individual who was initially appointed as a Marine Corps
               Reserve officer in the Officer Candidate (Law) Program . . . before
               graduation from law school shall be credited upon designation as a
               judge advocate with: (1) one day of credit for each day of prior
               service as a commissioned officer (other than as a commissioned
               warrant officer) that was performed as a Regular officer on active
               duty, or as a Reserve officer on active duty or in an active status, in
               any Armed Force of the United States (Prior Commissioned Service
               Credit), plus (2) constructive service credit computed under
               subparagraph 8c(1), which shall be applied under subparagraph 10b.

               4. Other Relevant Laws

                      a. Special Selection Boards

        Title 10 of the U.S. Code also includes provisions setting out procedures for when an
officer was not considered by a selection board for promotion due to administrative error.
Section 628(a)(1), titled “Persons not considered by promotion boards due to administrative
error,” provides in relevant part:

                      If the Secretary of the military department concerned
               determines that because of administrative error a person who should
               have been considered for selection for promotion from in or above

                                                 6
               the promotion zone by a promotion board was not considered . . .
               the Secretary shall convene a special selection board under this
               subsection to determine whether that person . . . should be
               recommended for promotion.

         If a special selection board convened under 10 U.S.C. § 628(a)(1) “recommends for
promotion to the next higher grade a person whose name was referred to it for consideration, that
person shall, as soon as practicable, be appointed to that grade in accordance with subsections
(b), (c) and (d) of section 624 of this title.” § 628(d)(1).

        Subsection (g) of § 628, titled “[j]udical review,” provides that “[a] court of the United
States may review a determination” not to convene a special selection board and also “may
review the action of a special selection board . . . .” § 628(g)(1), (2). In such cases, a court may
set aside the special selection board’s determination only if it is arbitrary or capricious; not based
on substantial evidence; a result of material error of fact or material administrative error; or
otherwise contrary to law.

       The statute also expressly provides:

               No official or court of the United States may, with respect to a claim
               based to any extent on the failure of a person to be selected for
               promotion by a promotion board—
           (1) consider the claim unless the person has first been referred by the
           Secretary concerned to a special selection board convened under this
           section and acted upon by that board and the report of the board has
           been approved by the President; or
           (2) except as provided in subsection (g), grant any relief on the claim
           unless the person has been selected for a promotion by a special
           selection board convened under this section to consider the person for
           recommendation for promotion and the report of the board has been
           approved by the President.

10 U.S.C. § 628(h).

        Finally, the statute authorizes the Secretary of each military department to promulgate
regulations governing special selection boards. 10 U.S.C. § 628 (j)(1).

         Pursuant to this authority, the Marine Corps Promotion Manual, Marine Corps Order
P1400.31C, includes provisions on special selection boards. Paragraph 7001, relying on
SECNAVINST 1402.1B, notes who is eligible to request a special board. Paragraph 7002 then
spells out the grounds on which an eligible officer may request a special selection board. The
first ground specified is “Administrative Error,” defined as “when an officer was eligible for
consideration by a promotion selection board, but whose record was not in the eligible
population reviewed by the board.” The second ground for a special selection board is the
officer was “considered in an unfair manner.” Because the plaintiff was not considered by the
February 2004 selection board, this second ground does not apply.


                                                  7
                        b. Running Mate System

        The final statutory provision relevant to the case is 10 U.S.C. § 14306, titled
“[e]stablishment of promotion zones: Navy Reserve and Marine Corps Reserve running mate
system.” The statute directs the assignment of running mates as follows:

               An officer to whom a running mate system applies shall be assigned
               as a running mate an officer of the same grade on the active-duty list
               of the same armed force. The officer on the reserve active-status list
               is in the promotion zone and is eligible for consideration for
               promotion to the next higher grade by a selection board convened
               under [the relevant statutes for reserve promotion] when that
               officer’s running mate is in or above the promotion zone established
               for that officer’s grade under [the chapter including 10 U.S.C. §
               14306(b)].

10 U.S.C. § 14306(b).

        The plaintiff acknowledges that this running mate provision applies only to officers on
the reserve active status list, and because the plaintiff was never on that list this statute does not
apply to him. He argues, however, that the rationale behind the running mate system is identical
to the purpose of the Defense Directive, “namely to place an officer with education beyond the
baccalaureate degree receiving constructive credit in the same position as an officer who began
his commissioned service immediately after completing baccalaureate studies.” (Pl.’s Corrected
Opp’n at 5 n.7, ECF 73.)

       C. Procedural Background

       The plaintiff has been contesting the timing of his CSC and the failure of the Marine
Corps to consider him for promotion to captain since early 2005. In 2005 while still a captain
(though he had been selected for major), the plaintiff sought to have the Marine Corps correct an
alleged error in the application of his CSC. 3 In 2008, he filed a petition with the BCNR, which
denied him relief. In 2011, the plaintiff initiated this case.

         Following oral argument on the defendant’s motion to dismiss in 2012, the Court again
heard argument, ordered supplemental briefing, and subsequently granted the plaintiff’s motion
to file an Amended Complaint in 2016. (ECF 42.)

     Upon joint motion of the parties, the case was subsequently remanded to the BCNR in
December 2016. On remand, the BCNR requested an advisory opinion from the Military



       3
           The BCNR noted in its decision, and the plaintiff’s brief reiterates, that the plaintiff
initially challenged the timing of the award of his CSC in 2005, but at oral argument the plaintiff
noted that he first challenged the timing of his CSC through his chain of command in 2004. The
difference is immaterial to the Court’s consideration of this case.


                                                  8
Personnel Law Branch of the Marine Corps Judge Advocate Division. After receiving the
advisory opinion, the BCNR again rejected the plaintiff’s claim in May 2017.

        In December 2017, the plaintiff filed a Supplemental Complaint (ECF 61). The parties
filed their respective cross-motions now pending. In June 2019, the case was transferred to this
judge. (ECF 81.) The motions are fully briefed, and the Court heard oral argument on
September 25, 2019.

        Counts I through III of Lt. Col. Pedden’s Amended Complaint (ECF 27-1) and Count IV
added by his Supplemental Complaint (ECF 61) are pending before this Court. These four counts
articulate overlapping theories as to why the BCNR’s denial of Lt. Col. Pedden’s petition to
backdate his date-of-rank as captain was legally invalid.

        Count I claims that, by not applying CSC when Lt. Col. Pedden was appointed an officer,
the Marine Corps’ application of CSC to Lt. Col. Pedden violated two requirements of 10 U.S.C.
§ 741: first, that date-of-rank must reflect the application of CSC and, second, that Department of
Defense (“DoD”) CSC regulations apply uniformly among the services. The plaintiff alleges that
the “award is to be applied so as to approximate equality, for rank and pay purposes, between the
officer who enters active service on completion of a baccalaureate degree, and the officer who
instead elects to pursue graduate education.” (Am. Compl. ¶ 27, ECF 27-1.) The Marine Corps’
application of CSC to Lt. Col. Pedden, Count I alleges, denied him the date-of-rank of an officer
commissioned at the time he commenced his legal studies in August 1999. (Id. ¶ 28.)

       Count II alleges that the Marine Corps’ application of CSC under standards different than
those employed by the other armed services violates the statutes that require CSC to be applied at
appointment and a regulation requiring that CSC be administered uniformly among all of the
armed services. (Am. Compl. ¶ 36, ECF 27-1 (citing 10 U.S.C. §§ 533 and 12207 as requiring
application of CSC when appointed and citing DoDD 1312.03 § 4 as requiring that CSC “apply
uniformly among the Army, Navy, Air Force and Marine Corps”).)

        Count III claims that the Marine Corps’ application of CSC upon designation as a judge
advocate and not upon appointment as an officer is arbitrary and capricious because it has “no
basis,” considers “no relevant factors,” and “essentially ‘flip[s] a coin’ to determine when CSC
should be applied.” (Id. ¶ 44.)

         Finally, Count IV, added after the BCNR rejected the plaintiff’s petition on remand, alleges
that the BCNR’s “determination [that] the proper application of CSC does not require the Marine
Corps to place Lt. Col. Pedden in the same lineal position, seniority in permanent grade, and
eligibility for promotion as his running mate was arbitrary, capricious, an abuse of discretion, and
an error of law in violation of the [Administrative Procedure Act].” (Suppl. Compl. ¶ 18 (ECF
61).)

II. JURISDICTION

        The Tucker Act has been interpreted to limit this Court’s jurisdiction over statutory and
regulatory claims, even in the military pay context, to causes of action based on money-mandating
statutes and regulations. 28 U.S.C. § 1491; Metz v. United States, 466 F.3d 991, 995-97 (Fed. Cir.
2006). A statute is money-mandating when it is “reasonably amenable to the reading that it

                                                 9
mandates a right of recovery in damages.” Fisher v. United States, 402 F.3d 1167, 1174 (Fed. Cir.
2005) (emphasis in original). Although the Military Pay Act is generally recognized as money-
mandating, its money-mandate is limited by the principle that “a service member is entitled only
to the salary of the rank to which he is appointed and in which he serves.” Smith v. Sec'y of Army,
384 F.3d 1288, 1294 (Fed. Cir. 2004); Antonellis v. United States, 723 F.3d 1328, 1333 (Fed. Cir.
2013). Promotion claims under the Military Pay Act are only money-mandating under two
exceptions to that principle: when (1) a service member met the legal requirements for promotion
(had a “clear-cut legal entitlement”), but the service failed to recognize it; or (2) non-promotion
led to the service member’s involuntary discharge. Smith, 384 F.3d at 1294.

        Lewis v. United States clarified Smith’s requirement of a “clear-cut legal entitlement” to
promotion. 458 F.3d 1372, 1378 (Fed. Cir. 2006). A promotion claim’s reviewability depends on
whether the denial of the promotion was an official’s exercise of “Presidential discretion in
declining to grant the appointment or whether the official is improperly construing the
Constitution, a statute, or regulation directing appointments (in which case the action is
reviewable).” Id.

       A. Promotion to Captain

        Lt. Col. Pedden’s claim that he was entitled to an earlier promotion to captain alleges a
general misapplication of the CSC statute and regulations as its cause, not any discretionary
decision related to his individual eligibility for promotion or the timing thereof. This claim
meets Smith’s “clear-cut legal entitlement” standard. The delay in application of Lt. Col.
Pedden’s CSC was a service-wide written “Instruction” implementing a DoD-wide regulation
implementing a statute. The claim presented by Lt. Col. Pedden differs from the plaintiff’s claim
in Smith; the plaintiff there was passed over twice for promotion to colonel in the exercise of
discretion by selection boards. Smith, 384 F.3d at 1295. A promotion prevented or delayed by a
subordinate official’s misconstruction of a statute, however, is distinct and qualifies as a case of
clear-cut legal entitlement, a money-mandating claim sufficient to confer jurisdiction under the
Military Pay Act.

        Morever, Lt. Col. Pedden argues (and the defendant does not fully rebut) that the
procedural misapplication of CSC prevents officers from meeting a lone, objective time-in-grade
requirement for what is otherwise considered to be an automatic promotion from first lieutenant
to captain. (See Am. Compl. ¶ 12, ECF 27 (“The selection rate for the FY06 Captain’s selection
board among First Lieutenants with an MOS of 4401/4402 was 100%.”); Suppl. Compl. ¶ 28, ECF
61 (“[T]he selection process for judge advocates pending selection for Captain is hardly
competitive, as practically no judge advocate being considered for promotion to Captain will have
operational experience.”); cf. 10 U.S.C. § 624(c) (promotions to captain do not require Senate
confirmation, an indication they are routine). Lt. Col. Pedden’s claim to a clear-cut legal
entitlement is distinguishable from the claim the Federal Circuit rejected in Smith. Were Lt. Col.
Pedden to prevail on the merits of his claim, he would have “‘a clear-cut legal entitlement” to the
promotion in question.’” Id. at 1294 (quoting Skinner v. United States, 219 Ct. Cl. 322, 332, 494
F.2d 824, 830 (1979)). The Court has jurisdiction to hear the plaintiff’s claim for promotion to
captain.



                                                10
       B. Later Promotions

        Although the defendant does not contest the Court’s jurisdiction to hear this case, the
Court must itself determine that it does in fact have jurisdiction. See, e.g., St. Bernard Parish
Gov’t v. United States, 916 F.3d 987, 992-93 (Fed. Cir. 2019). The Court lacks jurisdiction to
review the later promotions to major and lieutenant colonel because the Military Pay Act’s
money-mandate does not remedy delay in subsequent promotions. Lt. Col. Pedden’s claim for
earlier promotion to ranks above captain more closely resembles the claims for earlier promotion
consideration that the Federal Circuit rejected in Smith. In addition to his claim for promotion to
colonel, the retired lieutenant colonel in Smith argued that the correct application of his CSC
would have resulted in his earlier promotion to major and lieutenant colonel. Smith, 384 F.3d at
1290-91. The Federal Circuit remanded the case for analysis of the involuntary discharge
exception, but first held that “[t]he claim that he should have been given earlier consideration for
those promotions does not carry with it an entitlement to retroactive pay at the pay level for those
ranks before he was actually promoted.” Id. at 1294 n.2.

        Here, Lt. Col. Pedden similarly seeks back pay for delay in his consideration for
promotion to major and lieutenant colonel caused by his allegedly late promotion to captain.
There is no suggestion that these later promotions are automatic in the same way that a CSC-
recipient’s promotion from first lieutenant to captain is. The Court finds no meaningful
distinction between the Smith plaintiff’s claim for delay in his promotions and Lt. Col. Pedden’s
claim for his later promotions after captain. The Court only has jurisdiction to award Lt. Col.
Pedden as a monetary award the difference in pay between first lieutenant and captain for the
period of time between the date the promotions made by the FY 2005 captain selection board
took effect and the date the plaintiff was in fact promoted to captain. It would then be left to the
BCNR to determine if other relief would be appropriate.

III.   STANDARD OF REVIEW

         The defendant argues that the Amended and Supplemental Complaints fail to state a claim
for relief and moves to dismiss all counts under RCFC 12(b)(6). (ECF 69.) In evaluating a motion
to dismiss for failure to state a claim under RCFC 12(b)(6), the Court must accept as true a
complaint’s well-pleaded factual allegations and construe them in the most favorable manner to
the plaintiff. Ashcroft v. Iqbal, 566 U.S. 662, 668 (2009). The Court must draw all reasonable
inferences in favor of the non-moving party. Sommers Oil Co. v. United States, 241 F.3d 1375,
1378 (Fed Cir. 2001).

        To avoid dismissal, a complaint must allege facts “plausibly suggesting (not merely
consistent with)” a showing that the plaintiff is entitled to the relief sought. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 558 (2007). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).

       “[J]udicial review of decisions of military correction boards is conducted under the
[Administrative Procedure Act].” Walls v United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009).
Pursuant to a motion under RCFC 52.1, the Court reviews the record before the corrections
board to determine whether the board’s decision was arbitrary, capricious, not supported by

                                                 11
substantial evidence, or contrary to applicable statues and regulations. See Bernard v. United
States, 59 Fed. Cl. 497, 501, aff’d, 98 Fed. Appx. 860, 862 (Fed. Cir. 2004). The Court may
resolve disputed factual issues under RCFC 52.1. See Bannum, Inc. v. United States, 404 F.3d
1346, 1356 (Fed Cir. 2005).

         “[U]nless Congress specifically has provided otherwise, courts traditionally have been
reluctant to intrude upon the authority of the Executive in military and national security affairs.”
Department of Navy v. Egan, 484 U.S. 518, 530 (1988). “[M]ilitary administrators are presumed
to act lawfully and in good faith like other public officers, and the military is entitled to substantial
deference in the governance of its affairs.” Dodson v. U.S. Gov't, Dep't of Army, 988 F.2d 1199,
1204 (Fed. Cir. 1993). “It is not the business of the court to run the Army.” Knightly v. United
States, 227 Ct. Cl. 767, 769 (1981) (quoting Orloff v. Willoughby, 345 U.S. 83 (1953)).

IV.     DISCUSSION

       The merits of Lt. Col. Pedden’s case present a recurring issue in judicial decision-
making: should a formal or instrumental approach to the law control the outcome of a case. Lt.
Col. Pedden’s argument, at its core, seeks to force the Marine Corps to interpret the governing
law and regulations in a way that meets the purposes for which he argues CSC is awarded. The
defendant effectively argues that a formal reading of the plain meaning of those provisions
requires that the plaintiff’s claims be rejected.

        A. Timing

         The first two of Lt. Col. Pedden’s claims in his Amended Complaint are easily addressed.
In these claims, he alleges that the Marine Corps’ application of CSC to him and the BCNR’s
decision upholding it contravene the plain language of the CSC statute, 10 U.S.C. § 12207(b)(1).
His argument is that under the CSC statute the Marine Corps must apply CSC at the time of
initial appointment. In his arguments before the BCNR and his brief on the pending motions,
however, Lt. Col. Pedden effectively concedes those claims, and he did not pursue them during
oral argument.

        The CSC statute itself simply commands the award of CSC to eligible individuals under
such regulations as may be prescribed. It allows for the award of CSC to “a person who is
receiving an original appointment . . . , or designation in, or an assignment to” a relevant officer
category. It is otherwise silent as to the timing of the award of CSC. See 10 U.S.C. §
12207(b)(1). Lt. Col. Pedden received his CSC upon designation as a judge advocate, in
compliance with an express provision of the statute.

       Similarly, the Defense Directive commands the award of CSC to a “person being
appointed, assigned, or designated . . . .” DoDD 1312.3 § 4.1. The Navy Instruction commands
the award of CSC to Marine Corps judge advocates at designation. SECNAVINST 1120.9A, ¶
10b.

      Lt. Col. Pedden received CSC at designation as expressly provided for in the CSC statute,
Defense Directive, and Navy Instruction. The statute on its face cannot support his claim that the
Marine Corps was required to award CSC earlier, at the time of original appointment.


                                                   12
       B. Uniformity

        Lt. Col. Pedden also claims that CSC must be awarded in the same manner consistently
across all the military services. He argues that only the Marine Corps waits until a lawyer is
designated a judge advocate to award CSC. Although Lt. Col. Pedden makes the claim and
continues to assert it, his brief does not present any argument for it aside from the simple
assertion that the Defense Directive requires the identical treatment of CSC across all branches
of the service. DoDD 1312.3 is, however, silent on the issue. In fact, Section 4.2.2.2 of the
Defense Directive, on its face, vests discretion in the Secretary of each military department. In
addition, the Defense Directive is, like the CSC statute, silent as to when CSC must be awarded
as between appointment and designation. This claim too is unavailing and cannot form the basis
for overturning the BCNR.

       C. Purpose

        Unable to prevail on the plain language of the CSC statute and regulations, Lt. Col.
Pedden focused his briefs and oral argument on an instrumental interpretation of both as alleged
in his Supplemental Complaint. Lt. Col. Pedden agrees that the formal running mate system that
links reserve- and active-duty officers’ promotion eligibility does not apply to his facts. 4 Instead,
Lt. Col. Pedden argues that the Defense Directive’s declaration of CSC’s purpose as “grade and
date of rank comparability” between a credited officer and an officer with equivalent actual
service, DoDD 1312.3 § 4.2.2, requires a running-mate-like effect when CSC is lawfully applied.

         To demonstrate the allegedly required effect of CSC, Lt. Col. Pedden identified an actual
Marine officer as an assumed running mate. This assumed running mate was commissioned as a
second lieutenant on Lt. Col. Pedden’s CSC-adjusted commissioning date and was promoted to
first lieutenant in regular order. Unlike Lt. Col. Pedden, however, this assumed running mate
was considered for promotion to captain in February 2004 and promoted to captain in July 2005.
The plaintiff argues that his lack of seniority relative to an officer whose actual service matched
Lt. Col. Pedden’s credited service when Lt. Col. Pedden’s CSC was applied in March 2004
demonstrates that the Navy Instruction’s application of CSC at designation contravenes the
“equitably” determined “grade and date of rank comparability” that the Defense Directive
expressly declares as CSC’s purpose.

        The BCNR’s decision on remand rejected this running-mate argument, noting that neither
the relevant statutes nor regulations require a credited judge advocate to receive “the same
promotion status as their most closely situated officer, or . . . ‘running mate.’” (AR 204.) Lt.
Col. Pedden maintains that the BCNR’s failure to interpret the Defense Directive in a way that
effectuates its purpose calling for grade and rank comparability is arbitrary, capricious, or
contrary to law.




       4
          As noted above, 10 U.S.C. § 14306 authorizes the Secretary of the Navy to establish
promotion eligibility zones for officers on the reserve active status list by tying a reserve
officers’ promotion eligibility to an active duty “running mate” of the same grade.


                                                 13
        Whatever the policy merits of Lt. Col. Pedden’s argument about the purpose of the CSC
statute and regulations, his argument that their purpose requires a running-mate effect fails as a
matter of legal interpretation.

         A statute or regulation’s purpose “cannot be used to contradict text or to supplement it.”
Antonin Scalia & Bryan A. Garner, Reading Law 57 (1st ed. 2012). In West Virginia University
Hospitals, Inc. v. Casey (“WVUH”), the Supreme Court rejected the argument that the legislative
purpose of a statute shifting “attorney’s fees” required the court to expand the definition of
“attorney’s fees” to include expert witness fees paid by counsel. 499 U.S. 83, 100 (1991). The
Supreme Court reasoned, “[T]he purpose of a statute includes not only what it sets out to change,
but also what it resolves to leave alone . . . . The best evidence of that purpose is the statutory
text [adopted and signed].” Id. at 98. The Supreme Court concluded that “attorney’s fees” was
an unambiguous term that did not include expert witness fees and, had Congress wanted to,
“Congress could easily have shifted ‘attorney’s fees and expert witness fees,’ or ‘reasonable
litigation expenses,’ as it did in contemporaneous statutes.” Id. at 99. The Supreme Court was
bound by the statute’s more restrictive, unambiguous reference to attorney’s fees. Id.

        Under the fundamental supremacy-of-text principle illustrated in WVUH, this Court must
reject Lt. Col. Pedden’s argument that the Defense Directive’s declared purpose for CSC requires
the BCNR or this Court to supplement the Defense Directive or Navy Instruction’s specific terms
to include promotion-consideration comparability. The Navy Instruction defines the CSC
applicable to Lt. Col. Pedden, and it does not account for comparability in promotion-consideration
status between a credited officer and his running mate.

        To the extent the Defense Directive’s purpose statement might limit the Navy Instruction
and its application by the Marine Corps, an interpretation of “grade and rank comparability” that
does not include promotion consideration is reasonable, given the existence of separate statutes
and regulations comprehensively governing the promotion-selection-board process.

        Lt. Col. Pedden may be correct that an interpretation of the CSC statute and Defense
Directive that would have resulted in his earlier promotion would offer a more effective incentive
for the recruitment of judge advocates. It is not the judicial role, however, to interpret statutes and
regulations in a way that best effectuates their underlying policy in cases for which they do not
provide. “‘A casus omissus does not justify judicial legislation.’” Robert Bosch, LLC v. Pylon
Mfg. Corp., 719 F.3d 1305, 1340 (Fed. Cir. 2013) (O’Malley, J., dissenting) (quoting Ebert v.
Poston, 266 U.S. 548, 554 (1925)). This approach is especially apt when the so-called problem’s
cause is the expected operation of the promotion statutes, which carry with them their own
underlying policies and purposes.

       None of this is to say that the Marine Corps and the Navy Department could not interpret
the CSC statute and its implementing directives in the manner Lt. Col. Pedden is advocating.
Nothing in these authorities, however, compels Lt. Col. Pedden’s reading. The Marine Corps
could adopt Lt. Col. Pedden’s instrumentalist interpretation of the legal authorities to enable the
timing of the award of CSC to judge advocates to allow for the running-mate system Lt. Col.
Pedden seeks, but no language in any relevant authority compels that outcome. The decision of
the BCNR to reject the plaintiff’s argument is therefore not arbitrary and capricious.


                                                  14
       D. Rationality

        A review of the CSC statutes and regulations leads the Court to conclude that these
provisions leave the timing of CSC to the Secretary of the Navy’s discretion. The Secretary may
apply CSC at the time of designation, as happened to Lt. Col. Pedden, or he may apply CSC upon
original appointment, as urged by the plaintiff. The Secretary exercised this discretion by
specifying application upon designation in the Navy Instruction.

        The Secretary must apply the statute and regulations consistently and rationally, and there
is no claim that Lt. Col. Pedden was treated differently than any other judge advocate in the timing
of the award of CSC. Count III of the Amended Complaint, however, claims that the Marine
Corps’ application of CSC upon designation as a judge advocate and not upon original
appointment as an officer is arbitrary and capricious because it has “no basis,” considers “no
relevant factors,” and “essentially ‘flip[s] a coin’ to determine when CSC should be applied.” (Am.
Compl. ¶ 44, ECF 27-1.).

        The BCNR did not directly address the argument, but the advisory opinion the BCNR
considered and included with its decision concluded that the BCNR could not review the Marine
Corps’ action under an arbitrary and capricious standard. (AR 237-38.) The advisory opinion
explained that, under the BCNR’s statute, 10 U.S.C. § 1552, the BCNR can only correct “legal or
factual error” and treatment that “shocks the sense of justice.” (AR 238.) The advisory opinion
found that “because in this case the award of CSC is legally and factually correct, and does not
shock the sense of justice, the BCNR cannot correct that award even if, as [Lt. Col. Pedden] alleges,
the Marine Corps failed to consider all relevant factors, improperly considered a relevant factor,
or awarded it differently than the other Services.” (AR 238.) In essence, the advisory opinion
concludes that the correctness of the Marine Corps’ application of CSC to Lt. Col. Pedden puts the
BCNR at the end of its remedial authority and precludes it from reviewing the rationality of the
underlying policy that applies CSC at designation.

               1. “Arbitrary and Capricious” Standard

        An official’s or agency’s irrational or “arbitrary and capricious” exercise of discretion is
legal error. Judulang v. Holder, 565 U.S. 42, 53 (2011) (An agency must “exercise its discretion
in a reasoned manner.”). Reasoned decision-making is the cornerstone of the rule of law and
judicial review. See Dep't of Commerce v. New York, 588 U.S. ___, 139 S. Ct. 2551, 2573 (2019)
(quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 167-69 (1962)) (“[T]o permit
meaningful judicial review, an agency must “disclose the basis” of its action.”). A court must be
able to assess “‘whether [a] decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment.’” Judulang, 565 U.S. at 53 (quoting Motor
Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43
(1983)).

        For example in Judulang, the Supreme Court held that the Board of Immigration Appeals
(“BIA”) had to exercise discretion granted to it by an immigration statute with an approach that is
“tied, even if loosely, to the purposes of the immigration laws or the appropriate operation of the
immigration system.” Id. at 55. The BIA’s discretionary definition of deportation grounds only
considered the similarity or difference between certain legal provisions implicated in each case.

                                                 15
Id. at 58. Because it did “not rest on any factors relevant to whether an alien . . . should be
deported,” but turned deportation decisions into “a ‘sport of chance’” the BIA definition was
rejected. Id. at 58-59.

        Applying an “arbitrary and capricious” standard to a military department’s policy decision
only requires the military department to provide a rational explanation connecting its policy
decision consistent with the law to the facts it considered. Nevertheless, a presumption of
regularity requires a plaintiff first to demonstrate some evidence of arbitrary and capricious
decision-making before a court requires an explanation of a discretionary decision. See Richey v.
United States, 322 F.3d 1317, 1327 (Fed. Cir. 2003).

               2. BCNR Jurisdiction

         The BCNR exercises the Secretary of the Navy’s authority to correct records for “error or
injustice.” 10 U.S.C. § 1552. A Department of the Navy regulation establishes the BCNR and
grants it “jurisdiction to review and determine all matters properly brought before it, consistent
with existing law.” 32 C.F.R. § 723.2(c). 5 It also specfies that the BCNR “is not an investigative
body.” 32 C.F.R. § 723.3(b). The BCNR’s function is to “consider applications properly before
it for the purpose of determining the existence of error or injustice in the naval records of current
and former members of the Navy and Marine Corps, to make recommendations to the Secretary
or to take corrective action on the Secretary's behalf when authorized.” Id. A BCNR decision is
a final action of the Secretary of the Navy. Strickland v. United States, 423 F.3d 1335, 1339 (Fed.
Cir. 2005) (“After reviewing the record and the Board's recommendation, the Secretary or his
designee makes the one and only actual decision . . . . [T]he service member may contest this final
agency action in a court.”) (emphasis added).

        Lt. Col. Pedden’s claim raised before the BCNR and in this Court that the Navy
Instruction’s application of CSC is arbitrary and capricious presents a legal error that the BCNR
can consider and correct. The BCNR’s consideration of whether the policy decision to apply CSC
upon designation is rationally connected to facts the Secretary of the Navy considered would
neither substitute the BCNR’s expertise and policy judgment for that of the Secretary of the Navy,
nor would it require the BCNR to find facts or investigate. The Secretary of the Navy may
ultimately reject the BCNR’s conclusion, and his reasoning for doing so is reviewable in this court.
Sanders v. United States, 594 F.2d 804, 812 (Ct. Cl. 1979) (“[L]ike the boards, the Secretary must
not act in an arbitrary, capricious manner, unsupported by substantial evidence, or in violation of
the law. Actions of both are subject to judicial reversal for violation of such standards. This is
well settled.”). 6



       5
         The secretary of a military department may, by regulation, limit the jurisdiction of a
record correction’s board, see Biddle v. United States, 186 Ct. Cl. 87, 94 (1968), but there is no
suggestion here that the Secretary of the Navy has exercised that authority.
       6
        A part of the Sanders decision not relevant here, requiring consideration of causation,
was superseded by the statute that provides for remanding promotion decisions to special


                                                 16
        Moreover, Lt. Col. Pedden’s demonstration that the Navy Instruction created disparate
outcomes for no apparent reason, in light of the Defense Directive’s requirement that an officer’s
CSC award “be equitably determined,” DoDD 1312.3 § 4.1, is sufficient to overcome the
presumption of regularity. The BCNR should have addressed Lt. Col. Pedden’s argument that the
Marine Corps’ application of CSC at designation was arbitrary or, in other words, lacked a rational
basis. See Rudo v. Geren, 818 F. Supp. 2d 17, 26 (D.D.C. 2011) (“the plaintiff's due process claim
was not frivolous and the ABCMR board was required to address it”); Ashe v. McNamara, 355
F.2d 277, 282 (1st Cir. 1965) (“Congress having authorized administrative reconsideration and
change of sentences that had become final, we think it was as much the duty of the Secretary and
the Correction Board, as it would have been of a court empowered to entertain a collateral attack
upon some final decision, to treat as void a sentence thus unconstitutionally imposed.”). The
BCNR did not decide the issue, and the advisory opinion it considered rejected the need to provide
any explanation. (AR 238.) The advisory opinion’s conclusion that the BCNR lacks authority to
remedy an arbitrary and capricious application of a Navy Department regulation was mistaken.

        The post hoc justifications for the policy presented in the defendant’s briefing in this Court
are not a substitute for the BCNR’s consideration of and response to Lt. Col. Pedden’s rationality
argument. Gose v. U.S. Postal Serv., 451 F.3d 831, 838 (Fed. Cir. 2006) (“The courts may not
accept appellate counsel's post hoc rationalizations for agency action; [SEC v. Chenery Corp., 332
U.S. 194 (1947),] requires that an agency's discretionary order be upheld, if at all, on the same
basis articulated in the order by the agency itself . . . .”) (ellipsis in original) (citation omitted);
Watson v. United States, 113 Fed. Cl. 615, 635 (2013) (applying to military record correction
board), decision clarified, 118 Fed. Cl. 266 (2014), modified, No. 12-785C, 2015 WL 4914966
(Fed. Cl. Aug. 17, 2015).

        Although the Court does not find the Navy Instruction itself arbitrary and capricious, the
BCNR’s failure to provide in Lt. Col. Pedden’s case any explanation for the Secretary’s exercise
of discretion in applying CSC at designation is arbitrary and capricious. The BCNR could not
have properly concluded that CSC was applied without legal error in Lt. Col. Pedden’s case
without considering whether the Secretary’s discretionary decision to apply CSC at designation
was at least rationally related to relevant factors. If the BCNR did consider this question, it is not
reflected in its decision, which addresses only the procedural validity of Lt. Col. Pedden’s award
of CSC. The Court remands the case to the BCNR so that it may address Lt. Col. Pedden’s claim
that the Navy Instruction’s requirement that CSC be applied to Marine Corps judge advocates at
designation instead of upon original appointment is not a reasoned exercise of the Navy Secretary’s
discretion.

         Having the BCNR render the initial decision and provide its rationale properly vests
primary responsibility in the BCNR, whose members have the requisite expertise. It also ensures
that this Court remains within its proper limits by deferentially reviewing the decision of the BCNR



selection boards, 10 U.S.C. § 628. Richey v. United States, 322 F.3d 1317, 1320 (Fed. Cir.
2003).




                                                  17
rather than devising, without any special knowledge of the military, its own response to the
plaintiff’s argument.

V. CONCLUSION

        Counts I and II of Lt. Col. Pedden’s Amended Complaint and Count IV of his Supplemental
Complaint fail to state a claim on which this Court may grant relief. The court will enter a separate
order granting the defendant’s RCFC 12(b)(6) motion in part, dismissing Counts I, II, and IV, and
denying the plaintiff’s motion for judgment on the administrative record under RCFC 52.1 as to
the same counts. Even if these counts had stated a viable claim, under the appropriate deferential
standard of review applicable to the Court’s consideration of challenges to decision of military-
records correction boards, the Court must uphold the BCNR’s interpretation of its statutes and
regulations. In this respect, the BCNR’s decision is neither arbitrary and capricious nor
inconsistent with the law.

        Count III of the Amended Complaint states a claim on which this Court may grant relief.
The court will enter a separate order denying as to Count III the defendant’s Motion to Dismiss
under RCFC 12(b)(6), staying consideration as to Count III of the plaintiff’s motion for
judgment on the administrative record under RCFC 52.1, vacating the BCNR’s decision, and
remanding the matter to the BCNR for 120 days for consideration of the claim articulated in
Count III, specifically that SECNAVINST 1120.9A’s application of CSC at designation is an
arbitrary and capricious exercise of the Secretary of the Navy’s discretion. Because this case has
been pending for almost nine years, the Court will remand to the BCNR for a period of 120 days
in order to obtain its expedited consideration of the single issue to be addressed.


                                                                  s/ Richard A. Hertling
                                                                  Richard A. Hertling
                                                                  Judge




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