            In the United States Court of Federal Claims
                                   No. 12-840 C
                            (Filed December 11, 2013)

 JACOB OBERSTEIN,                        )
                           Plaintiff,    )
             v.                          )
                                         )
 THE UNITED STATES,                      )
                           Defendant.    )

                                        ORDER

      On April 5, 2013, the government filed a motion seeking judgment on the
administrative record and partial dismissal of plaintiff’s complaint. See Doc. 16.
Also currently pending on the docket is plaintiff’s motion, dated September 19,
2013, to seal an order of this court that was entered on March 12, 2013. See Docs.
27 and 10, respectively. The court will address each motion in turn.

I.    MOTION FOR JUDGMENT ON THE ADMINISTRATIVE RECORD
      AND PARTIAL MOTION TO DISMISS

       The government argues that the court should adopt the decision of the Board
for Corrections of Naval Records (“BCNR”) and grant its motion for judgment on
the administrative record because “the administrative record in this case
substantially supports the BCNR’s decision and establishes that the decision was
not arbitrary, capricious, or contrary to law.” Doc. 16 at 35. Plaintiff, of course,
disagrees. See Doc. 19 at 11-19. Two instructions relating to promotion of
officers to Lieutenant (junior grade) are at the center of the dispute: (1)
SECNAVINST 1421.4D, a regulation which was in force at the time that plaintiff
enrolled in the Uniformed Services University of Health Sciences (“USUHS”), and
(2) SECNAVINST 1412.6L, which replaced 1421.4D on December 9, 2005,
before plaintiff was disenrolled from USUHS on June 5, 2007. See Compl. at ¶¶ 8-
10, 14.

       SECNAVINST 1412.6L differs significantly from SECNAVINST 1421.4D,
in part because the earlier instruction specifically addresses, and expressly applies
to, “officers in the Uniformed Services of the University Health Sciences
(USUHS) program . . .” SECNAVINST 1421.4D(3). The later instruction does
not expressly address officers at USUHS, but states that it applies to “all ensigns
on the Active Duty List (ADL) and Reserve Active Status List (RASL) of the
Navy . . .” SECNAVINST 1412.6L(3)(a).

       As an initial matter, the BCNR’s decision seems to assume that the earlier
instruction is inoperative, even though it was in force at the time plaintiff enrolled
at USUHS. If a specific, reasoned determination was made as to retroactive
application of the later instruction, the BCNR did not include that discussion in its
decision.

       Assuming the later instruction is the relevant one with respect to plaintiff’s
status, in order to determine whether the new instruction applies to plaintiff, the
BCNR should have determined whether and for which periods plaintiff was on
either the ADL or the RASL. If such a determination was made, it was not explicit
in the BCNR’s decision. The BCNR observes “that Secretary of the Navy
Instruction (SECNAVINST) 1421.4D . . . was canceled by SECNAVINST
1421.6L [sic], dated 9 December 2005, which does not apply to USUHS officers as
SECNAVINST 1421.4D did.” BCNR decision letter, dated October 21, 2010,
Compl. at Ex. 1-1. While it is true that 1412.6L does not apply to USUHS officers
in the same way that 1421.4D did, it does not necessarily follow that the new
instruction does not apply to plaintiff at all.

       The parties seem to agree that plaintiff was not on the ADL during his time
at USUHS. See Doc. 19 at 11 (plaintiff states he joined the ADL on December 22,
2009); see Doc. 16 at 39 (defendant argues that plaintiff was not on the ADL
before his disenrollment from USUHS). Plaintiff contends, however, that 1412.6L
applies to him because he was on the RASL from 2004 to 2009. See Doc. 19 at 11.
In reply, the government argues that plaintiff was on the RASL for some period of
time, but was removed by operation of law when code section 10 U.S.C. § 2114,
relating to the status of USUHS students, was revised, effective May 1, 2005. See
Doc. 21 at 3. The basis for the government’s contention that such a status change
occurred by operation of law does not have direct support in the statutory text, and
therefore, is not as self-evident as the government argues.

       Plaintiff’s inclusion on either the ADL or the RASL is a matter of fact that
should be supported, one way or the other, by his personnel records. Plaintiff
points the court to his Officer Data Card in the administrative record, AR at 10-11,
in support of his position. This document, and any other evidence of plaintiff’s
status either was or should have been considered by the BCNR in making its initial
determination on plaintiff’s case.
      Because these findings were not included in the BCNR’s written decision,
this matter is remanded to the BCNR for further consideration under Court of
Federal Claims Rule 52.2.

      Specifically, the BCNR is directed to:

      (1) determine whether SECNAVINST 1421.4D continued to apply to
      plaintiff because it was in effect when he was enrolled at USUHS, or
      alternatively, whether SECNAVINST 1412.6L was meant to apply
      retroactively, and explain the basis for the conclusion;

      (2) determine whether, and on what dates, plaintiff was on the ADL;

      (3) determine whether, and on what dates, plaintiff was on the RASL;

      (4) make any further determinations that it considers relevant; and

      (5) reconsider its decision on plaintiff’s promotion in light of these
      conclusions.

      This matter is hereby REMANDED for a period not to exceed 120 days
from the date of this order. The government shall file a status report on the BCNR
proceedings no later than 60 days of the date of this order. Pending the remand
decision, all proceedings in this court are STAYED. The government’s motion for
judgment on the administrative record and motion to dismiss are DENIED, but
may be refiled if appropriate grounds exist following the BCNR’s reconsidered
decision.

II.   MOTION TO SEAL

       Plaintiff’s motion to seal this court’s March 12, 2013 order was filed more
than six months after the order was entered. As such, his attempt to protect the
information contained in that order is far too late to have any measurable effect.
Plaintiff’s motion is, therefore, DENIED.
       In accordance with Court of Federal Claims Rule 52.2(b)(2), the clerk is
directed to serve a certified copy of this order on each party and on the Board for
Corrections of Naval Records. The clerk is further directed, under 52.2(c), to
transmit the administrative record to the Department of Justice for return to the
Board for Corrections of Naval Records.


                                              s/James F. Merow
                                            James F. Merow
                                            Senior Judge
