                                    :,.



           lln t\t @nfte! $rtstes              @ourt of     ftlerul       @lsims           FILED
                                          No. l5-634C
                                                                                         JAN     I   2   2816
                                    (Filed: January 12, 2016)
                                                                                        U.S. COURT OF
                                                                                       FEDERAL CLAIMS

RONALD BIAS,                                        Military pay and abatement claim; lailure of
                                                   correction board to address relevant facts;
                       Plaintifl                   remand




 LNITED STATES,

                       Defendant.



       Ronald Bias, pro se, Richmond, Texas.

         Michael D. Snyder, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, D.C., for defendant. With him on the briefs
were Benjamin C. Mizer, Assistant Attomey General, Civil Division, and Robert E. Kirschman,
Jr., Director, and Douglas C. Mickle, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C. Of counsel was Major Dawn
M. Steinberg, Office of the Judge Advocate General, Department of the Navy, Washington, D.C.

                                            ORDER

LETTOW, Judge.

        Plaintiff, Ronald Bias, is a retired Lieutenant Colonel in the Marine Corps and Marine
Corps Reserve. He seeks reliefin this court in the form ofretroactive reinstatement to active
duty, back pay and allowances, correction of administrative records, and other equitable relief
related 1o his retirement from the Marine Corps first in November 2006 and then again in
November 2010 after his recall to active duty in August 2009. Many of his claims concem
events occurring and actions taken shortly before and shortly after that recall. Mr. Bias brought
these claims before the Board for Correction of Naval Records (the'Navy Conection Board" or
"Board") in December 2009. The Board treated his requests as substantially similar to a prior
petition for reinstatement Mr. Bias brought to the Board in July 2007. Although Mr' Bias's
requests in December 2009 had a quite different factual basis than those made to the Board more
than two years earlier, the Board denied the December 2009 requests for lack of new and
material evidence. Mr. Bias also filed a further petition with the Board in December 2013'
which the Board also denied. Mr. Bias contests these decisions.

       ln lieu of an answer or other response to Mr. Bias's complaint, the government filed a
motion for remand on December 1, 2015. The government acknowledges that the Board did not
adequately address plaintiff s allegations in his December 2009 petition and requests that this
court remand the case to the Board for reconsideration of the totality of Mr. Bias's claims. The
govemment notes that Mr. Bias has separately requested a waiver ofindebtedness from the
Defense Finance and Accounting Service ("DFAS"), and that this request was never adjudicated
due to the pendency of the petition Mr. Bias filed with the Board in December 2013 as well as
the present case. The govemment advises that remand in this case potentially would allow
DFAS to complete its processing of plaintiff s waiver request. Mr. Bias opposes a remand and
requests that the court proceed to render judgment on the administrative record respecting his
claims.

        The court has determined that remand is appropriate to allow the Board to reconsider
plaintiffs claims, including the matters pending before DFAS.


                                         BACKGROUNDI

                            A.   Service as an Ofiicer in the Marine Corps

        Mr. Bias served as an active duty officer in the Marine Corps from February 1987 to June
 1997, at which point he transferred to the Selected Marine Corps Reserve. Compl.flfl l2-13.2 In
June 1999, plaintiff transfened to the Marine Corps Active Reserve Program, where he was
promoted to the rank of lieutenant colonel in November 2003. Compl.'lifl 15-16. In April 2006,
the Marine Corps Headquarters notified plaintiff that he was eligible to retire. Compl.'!J 17. The
Marine Corps subsequently approved plaintiffs request to retire effective November 1,2006.
Compl. flfl 17-18.

                         B. Plaintiff's Injury and His 2007 Petition to the Board

         In July 2007, Mr. Bias petitioned the Board to be reinstated to active duty to seek medical
treatment for an ankle inj ury he sustained in January 2006, several months prior to his
retirement. Compl. fl 21; Del's Mot. to Remand ("Def.'s Mot.") at 2 & App. at 6-10, ECF No.
I 1 .3 He asserted that the Marine Corps violated certain regulations in processing his retirement
because he was not informed that the injury was considered permanent until March 2007-four


        rThe court has drawn upon the submissions
                                                  of the parties attendant to the pending motion
to provide a background and context for the case.

        2Mr. Bias initially entered on active duty as an enlisted man in the Navy. In 1983, he
enlisted in the Naval Reserve Delayed Entry Program and reported to boot camp in 1984.
Compl. fl 8. Upon completion of boot camp, Mr. Bias was awarded a Naval ROTC scholarship
to Louisiana State University. Compl. !J 9. Upon graduation from Louisiana State in December
1986, he was commissioned as a second lieutenant in the Marine Corps and entered on active
duty in February 1987. Compl. lTlJ 11-12.

       3A number of records pertinent to Mr. Bias's service in the Marine Corps and his claims
were appended to the govemment's motion to remand, and those records are cited as "Def.'s
Mot. App. at _."
months after his retirement-when he received a letter from the Marine Corps disquali$ing him
from flight duties. Compl. ll20-21; Def.'s Mot. App. at 6-8. Among other relief, Mr. Bias
requested reinstatement to active duty effective November 1, 2006 and commensurate back pay
and allowances. Compl tl 21; Def.'s Mot. App. at 8. The Board denied plaintiff s request,
finding that the Marine Corps properly determined plaintiff was "physically qualified for
retirement, notwithstanding [his] ankle condition" and other concems noted in his pre-retirement
medical evaluation. Def.'s Mot. App. at 9-10. Mr. Bias requested reconsideration of the Board's
decision in October 2008, but the Board denied this request due to a lack ofnew and material
evidence. Id. at 12-15; see also Def.'s Reply in Support of lts Mot. for Remand ("Def.'s Reply")
at 2, ECF No. l3 (quoting Secretary of the Navy Instruction 5420.193, Encl. 1, $ 9 ("After final
adjudication [by the Board], further consideration will be granted only upon presentation by the
applicant of new and material evidence;') (emphasis added)).

            C. Cancellation of Plaintif's Retirement and His 2009 Petition to the Board

        In June 2009, Mr. Bias received a letter from the Marine Corps Headquarters notifuing
him there had been an administrative error in calculating his active duty service prior to his
retirement. Compl. $ 22;Def.'s Mot. App. at 1-3. According to this letter, plaintiff had only
served approximately 18 years and 10 months of active duty service, which fell short ofthe
minimum service time required by law for retirement (20 years and one day). Def.'s Mot. App.
at L Consequently, the Secretary ofthe Navy directed the cancellation of plaintiffs retirement,
and Mr. Bias was given the option ofeither retuming to active duty service or being discharged
from the Marine Corps without retirement. 1d. Plaintiff opted to retum to active duty and was
recalled on August l, 2009 for a period of 16 months. Compl. !f 24 & Ex. C. At the same time,
DFAS initiated proceedings to recover $ I 17,194.00 in retirement pay and benefits that had been
made to Mr. Bias after November 2006. Compl. tf 25 & Ex. D.

         In December 2009, Mr. Bias petitioned to the Board for retroactive reinstatement to
active duty effective November 1, 2006. Compl. fl 26; Def.'s Mot. App. at 17-19. In this
petition, he did not reassert his allegations related to his ankle injury; instead, he reasoned that if
his retirement in 2006 was invalid, his release from active duty was likewise invalid. Def.'s Mot.
App. at 17-18. Accordingly, plaintiff claimed he was entitled not only to retroactive
reinstatement, but also $277,700.10 in taxable back pay and $7 6,424.26 in non-taxable
allowances. Id. at 17-18. He separately asserted that his non-selection for promotion to colonel
for fiscal year 201 I was unfair because he was negatively affected by a perceived break in
service between November 2006 and August 2009. Id.at18. Plaintiff requested "remedial
consideration for promotion with [his] peers" as part of the fiscal year 2009 review process. 1d.

        The Board treated Mr. Bias's request for refoactive reinstatement to active duty as
substantially the same "request for corrective action" that had previously been denied by the
Board in response to plaintiff s petition in July 2007. Def 's Mot. App. at 20. As a result, the
Board denied plaintiffs reinstatement request for a lack ofnew and material evidence. 1d. The
Board did, however, grant Mr. Bias's request to remove his non-selection for promotion from his
record so he could compete for promotion in the next available promotion board, Id. at2l-23.
              D. Plaintiff's llaiver   Request to DFAS and 2013 Petition to the Board

         Mr. Bias again retired from the Marine Corps on November 1, 2010, having completed
the full 20 years of active duty service required by law. First Am. Compl. Ex. M; Def.'s Mot. at
3. At that point, plaintiff had not repaid to DFAS the retirement payments made to him between
November 2006 and August 2009. See First Am. Compl. Ex. N; Def.'s Mot. at 6-7. In October
2013, plaintiff submitted a request for waiver of indebtedness to DFAS seeking relieffrom these
past-due payments and associated interest. Def.'s Mot. at 3, 6 & App. at 24. DFAS informed
Mr. Bias that it was unable to adjudicate his waiver request because an additional petition had
been filed by him with the Board in December 2013. Def.'s Mot. App. at 24. In that new
petition, plaintiff alleged that his retirement in 2010 was in fact a "constructive discharge" from
the Marine Corps due to "whistleblower retaliation," "undue command influence," "possible
abuse of authority," and a "possible violation of privacy rights ." Id. a|25. He sought
reinstatement to active duty effective November 1,2010 with the accompanying back pay and
allowances, as well as consideration by a special board for promotion to colonel in the active
reserve program. 1d.

        In January 2015, the Office ofthe Secretary ofthe Navy (Manpower and Reserve
Affairs) affirmed the Board's denial of Mr. Bias's December 2013 petition. Def.'s Mot. at 4 &
 App. a|26. DFAS did not then reinitiate processing of plaintiff s request for waiver of
indebtedness, and that request was again put on hold when plaintifffiled the present complaint
on June 19,2015. Def.'s Mot. at 4, 6. As of May 2015, DFAS indicated that plaintiff owed
$157,512.00, which included a $40,000 fee that was added to plaintiff s original repayment debt
when it was reported to the Intemal Revenue Service ("IRS") by DFAS. First Am. Compl. Ex.
N; Def.'s Mot. for Enlargement of Time to Respond to Compl. at l-2, ECF No. 8.

                                             ANALYSIS

                                  A.    Subject Matter Jurisdiction

         As a threshold matter, "[]urisdiction must be established . . . before the court may
 proceed with the merits;' Oyeryiew Books, LLC v. United States,72 Fed. Cl. 37, 40 (2006),
 aff'd,232 Fed. Appx. 989 (Fed. Cir.2007)(citingSteel Co. v. Citizensfor a Better Env't,523
 U.S.83,88-89 (1998)). In this instance, the court's subject matter jurisdiction is defined by the
 Tucker Act, 28 U.S.C. $ 1491, which grants jurisdiction over certain claims seeking money
 damages from the govemment. 28 U.S.C. $ 1a9l(a)(1). Because the Tucker Act is a
jurisdictional statute which "does not confer any substantive rights upon a plaintiff," the plaintiff
"must establish an independent substantive right to money damages from the United States-that
is, a money-mandating source within a contract, regulation, statute or constitutional provision-
in order for the case to proceed." Volkv. United States,l l l Fed. C\.313,323 (2013) (citing
 United States v. Testan,424 U.5.392,398 (1976); Jan's Helicopter Serv., Inc. v. FAA,525 F.3d
 t299,1306 (Fed. Cir. 2008)).

        In this instance, the Military Pay Act, 37 U.S.C. g 204, provides the requisite money-
mandating source of law to support Mr. Bias's claims under the Tucker Act. See, e.g., Martinez
v. United States,333 F.3d 1295,1303 (Fed. Cir. 2003) (en banc) ("In the context of military
 discharge cases, the applicable 'money-mandating' statute that is generally invoked is the
 Military Pay Act."); Straughter v. United States,120 Fed. C1.. 119,123 (2015).4 This court also
has jurisdiction under the Tucker Act to "issue orders directing restoration to office or position,
placement in appropriate duty or retirement status, and correction ofapplicable records" when
 such an order would "provide an entire remedy and . . . complete the relief afforded by the
judgment [on a claim for monetary damages]." 28 U.S.C. $ la91@)(2); see also Laughlin v.
 United States,_   Fed. Cl. _, _,2015 WL 880633 1, at *7 (Dec. 15, 2015).

        Mr. Bias requests a wide range of relief in addition to monetary damages and retroactive
reinstatement, including injunctive relief to bar DFAS and the IRS from further actions to collect
the asserted debt, removal of "negative credit bureau entries . . . from plaintiffs credit profile,"
special consideration for promotion, and restoration ofcertain military education benefits. First
Am. Compl. at 9- 10. To support these wide-ranging requests, the court would have to find that
these elements of relief were necessary to "provide an entire remedy" for the judgment afforded
on plaintiff s claim for monetary damages under the Military Pay Act. See 28 U.S.C. $
ru91@)(2); Laughlin,20l5 WL 8806331, at *7. Even if Mr. Bias were ultimately to receive a
favorable judgment, this court may not have factual grounds or even jurisdiction to grant this
relief. Moreover, because the Navy Correction Board has broader equitable powers than does


         aln addition to
                         claiming entitlement to back pay and allowances under the Military Pay
 Act, plaintiff claims damages resulting from the govemment's alleged violation of 10 U.S.C.
 $ 6323 (which govems the active duty service requirements for retirement of Navy or Marine
 Corps officers). First Am. Compl.1176-77. In the context of plaintiff s claims, Section 6323
does not apply. The statute states that "an officer retired under this section is entitled to retired
pay computed under [10 U.S.C. $ 6333]." 10 U.S.C. $ 6323(e). Mr. Bias is not claiming
entitlement to retired pay, however. Rather, he is in effect claiming that the govemment caused
him damages (including the loss of military pay and allowances) by inducing and allowing him
to enter into an "erroneous retirement" before he had completed the required 20 years ofactive
duty service. First Am. Compl. fl 76-77. The court's jurisdiction in that respect rests on
plaintiff s alleged entitlement to back pay and allowances under the Military Pay Act, with an
attendant claim for other relief consequent to such money damages, resulting from the
govemment's error in inducing and approving his retirement.
         Plaintiff also claims entitlement to damages under the Fifth Amendment to the United
States Constitution, alleging that his due process rights were violated when the government
"arbitrarily and capriciously caus[ed] him to forfeit all active duty pay and allowances to which
he was legally entitled and by failing to properly consider his timely filed application for waiver
oferroneous retired pay received." FirstAm. Compl.fl83. This court does not have jurisdiction
over claims arising under the Due Process clauses ofthe Fifth and Fourteenth Amendments. See,
e.g., Smith v. United States,709 F.3d 1114, 1116 (Fed. Cir. 2013) ("The law is well settled thar
the Due Process clauses ofboth the Fifth and Fourteenth Amendments do not mandate the
payment ofmoney and thus do not provide a cause ofaction under the Tucker Act."). Again, to
the extent that plaintiff is claiming entitlement to back pay, allowances, and related relief as a
result ofhis 2006 "erroneous" retirement, this court's jurisdiction rests on the provisions ofthe
Tucker Act and the Military Pay Act.
this court, Mr. Bias might be able to receive more relief administratively through the Board or
DFAS than irom this court.

                                       B. Motion to Remand
         The Tucker Act authorizes the court to "remand appropriate matters to any adminishative
or executive body or official with such direction as it may deem proper and just." 28 U.S.C.
$ 1a91(a)(2); see a/so Rule 52.2(a) of the Rules of the United States Court of Federal Claims
('RCFC'). If a decision of a military correction board, such as the Board for Correction of
Naval Records, failed to account for or explain certain evidence when rendering its decision,
"[t]he reviewing court is not generally empowered to conduct a de novo inquiry into the matter
being reviewed and to reach its own conclusions based on such an inquiry." Florida Power &
Light Co. v. Lorion,470 U.S. 729,744 (1985). Rather, "the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or explanation." .Id.; see
also ll'alls v. United States,582 F.3d 1358, 1367-68 (Fed. Cir. 2009) (vacating a trial court's
decision to reject a Navy Petty Officer's claim for back pay, and remanding with instructions to
remand to the Navy Correction Board for consideration ofnew evidence); Riser v. United States,
93 Fed. Cl. 212,217 (2010) (remanding a military pay claim rather than considering de novo
supplementary materials that should have been, but were not, considered by a conections board).
A court also has discretion to grant the govemment's request for a remand to reconsider its
previous position, without admitting error, as long as such a request is not "frivolous or in bad
faith." SKF USA Inc. v. UnitedStates,254F.3d1022, 1029 (Fed. Cir.2001).

        It is motion to remand, the govemment acknowledges that the Board did not adequately
explain the basis for denying Mr. Bias's December 2009 petition. Def.'s Mot. at 5-6. The
government concedes that plaintiff s "December 2009 petition set forth an allegation oferror
regarding his 2006 release from active duty that the [Board] had not yet addressed"-namely,
that the Marine Corps erred in notifying then-Lieutenant Colonel Bias that he was eligible to
retire and then approving his retirement request. 1d. at 6; see a/so Compl. fl l7; Pl.'s Opp'n to
Def.'s Mot. to Remand and Alternative Mot. for Judgment on the Administrative Record ("PI.'s
Opp'.r") at 5-6, ECF No. 12. Consequently, the govemment requests that the court remand this
case to the Board for reconsideration of the evidence submitted by Mr. Bias. Def 's Mot. at 6.
Remand would (1) allow and require the Navy Correction Board to consider relevant evidence it
previously ignored and reach a reasoned decision on an appropriate record, and (2) provide this
court with a comprehensive rationale for any action the Navy Correction Board might take. Id.
The govemment further asserts that remand potentially will allow DFAS to adjudicate Mr. Bias's
request for waiver ofindebtedness, which may resolve part of plaintiffs claims in the present
case to everyone's satisfaction and thereby promote judicial economy. Id. at6-7;see also Def .,s
Reply at 3-4.

         Mr. Bias opposes remand and asserts that F/or ida Power & Light is inapposite because
this is not a case where the Board failed to consider or explain certain evidence, but rather where
the Board considered all the evidence and nevertheless reached a "flawed conclusion." pl.'s
Opp'n at 2. He asserts that this court's review is limited to whether the Board's decision to deny
his petition was "arbitrary, capricious, unsupported by substantial evidence, or contrary to
 applicable statutes and regulations." Id.   atl-2 (citing Cronin v. United States,765 F.3d 1331,
 1334 (Fed. Cir. 2014)).

        If the govemment had decided in this case to defend the Board's decision based on the
record before the Board, Mr. Bias is correct that this court would review the Board's decisron
under the "arbitrary and capricious" standard specified in the Administrative Procedure Act. See
 SKF USA,254F.3d at 1028. That, however, is not the circumstance at hand. The government
has acknowledged that the Board's denial of plaintiff s petition is flawed and that a remand is
appropriate. There is no indication that this request for remand is frivolous or in bad faith.
indeed, govemment counsel asserts that he hasioordinated this request with the Board ,o ihut it
will expeditiously complete its review on remand. Def.'s Mot. at 6; Def.'s Reply at 3. In
addition, DFAS has stayed all collection efforts against Mr. Bias and has recalled the debt from
the IRS to alleviate harm to Mr. Bias during the pendency of this remand. Def.'s Mot. for
Enlargement of Time to Respond to Compl. at l;Def.'s Reply at 4. As a result, the court has
concluded that remand is appropriate.5

                                         CONCLUSION

        The govemment's motion to remand is GRANTED. Pursuant to RCFC 52.2(a), thrs case
is remanded to the Board for Conection ofNaval Records for a period not to exceed six months.
See RCFC 52.2(bXlXB). In conjunction with its consideration of Mr. Bias's claims on remand,
the Board should seek a recommendation from DFAS regarding plaintiffls request for waiver of
indebtedness. Thiscaseisstayedpendingtheresultsoftheremand.,!eeRCFC52.2(b)(lXC).
The court requests that the govemment submit status reports every 90 days during the pendency
of the remand regarding the progress of the ensuing proceeding before the Board. ,See RCFC
52.2(bXlXD).

          It is so ORDERED.


                                                     es F.   Lenow




          sln his response,
                            Mr. Bias also moved forjudgment on the administrative record pursuant
 to RCFC 52.1. Pl.'s Opp'n at 1. The govemment opposes this motion as premature because the
 administrative record has not yet been filed in this case. Def.'s Reply at 5. To emphasize that
 contention, the govemment has moved to strike Mr. Bias's motion under RCFC l2(fl. Id. In
 light of the grant of the government's motion for remand, plaintiff s altemative motion for
judgment on the administrative record is DENIED as moot, as is the sovemment,s motion to
strike.
