           In the United States Court of Federal Claims
                                           No. 16-1264
                                       Filed: June 16, 2017

                                              )
 JOSIAH E. NICELY,                            )
                                              )
                       Plaintiff,             )
                                              )               Remand; Rule 52.2.
 v.                                           )
                                              )
 THE UNITED STATES,                           )
                                              )
                       Defendant.             )
                                              )

Charles W. Gittins, Counsel of Record, Middletown, VA, for plaintiff.

Jessica R. Toplin, Trial Attorney, Douglas K. Mickle, Assistant Director, Robert E. Kirschman,
Jr., Director, Chad A. Readler, Acting Assistant Attorney General, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Lt. P. Tyson Marx, JAGC, Of
Counsel, Department of the Navy, Washington, DC, for defendant.

                         MEMORANDUM OPINION AND ORDER

GRIGGSBY, Judge

I.     INTRODUCTION

       Plaintiff, Josiah E. Nicely, a former United States Marine Corps (“USMC”) Captain,
brings this military pay action against the United States alleging that he has been wrongly
discharged from the USMC and seeking back pay and injunctive relief, pursuant to the Military
Pay Act, 37 U.S.C. § 204(a). See generally Compl. The government has moved to remand this
matter to the Board for Correction of Naval Records (“BCNR”), pursuant to Rule 52.2 of the
Rules of the United States Court of Federal Claims (“RCFC”). For the reasons discussed below,
the Court GRANTS the government’s motion for remand.




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II.    FACTUAL AND PROCEDURAL BACKGROUND 1

       A.      Factual Background

       In this military pay act matter, plaintiff, Josiah E. Nicely, alleges that he has been
wrongfully discharged from the USMC and seeks to recover back pay and certain injunctive
relief. See generally Compl. Plaintiff served on active duty in the USMC for more than ten
years, until October 7, 2011, when he was involuntarily discharged. Compl. at ¶ 2.

       On January 22, 2010, plaintiff was arrested by a Beaufort, South Carolina Police
Department Officer and charged with speeding and driving under the influence (“DUI”). AR at
006; see also Compl. ¶ 5; Def. Mot. at 2. After the arrest, plaintiff was taken into civilian
custody, and he did not report to work at his prescribed start time. Def. Mot. at 2; see also AR at
064. After plaintiff successfully contested the DUI charges, these charges were dismissed on
March 4, 2010. Compl. ¶¶ 5, 12-15, 22.

       Although the DUI charges against plaintiff had been dismissed, plaintiff’s arrest led to
administrative and disciplinary proceedings within the USMC and, ultimately, to plaintiff’s
involuntary separation from the USMC. AR at 007-014, 091-93, 526-29; see also id. ¶¶ 2, 7-11,
16-83; Def. Mot. at 2. On April 7, 2010, plaintiff received an adverse fitness report for the
period August 4, 2010 to January 25, 2010, which noted that plaintiff had been apprehended for
an “alcohol related incident.” AR at 022, 420, 423-24; see also Def. Mot. at 3. And so, plaintiff
was relieved of his duties as a public affairs officer for the USMC for cause on September 23,
2010. AR at 424, 429; see also Def. Mot. at 3-4.

       The USMC also referred charges against plaintiff to a general court martial for
unauthorized absence, driving under the influence of alcohol, and being drunk on duty. AR at
021-22; see also Compl. ¶¶ 21, 28; Def. Mot. at 2-4. Subsequently, the charge of being drunk on
duty was dismissed and replaced with a charge of incapacitation for duty through wrongful
indulgence in alcohol. AR at 026-027. Following an agreement reached between the parties, the
USMC dismissed the charges in plaintiff’s general court martial, and plaintiff was notified of the


1
  The facts recited in this Memorandum Opinion and Order are taken from the administrative record
(“AR”); plaintiff’s complaint (“Compl.”); and the government’s motion for remand (“Def. Mot”). Except
where otherwise noted, all facts recited herein are undisputed.


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USMC’s intent to, instead, impose a non-judicial proceeding. Id. at 028-30, 197. The USMC
conducted a non-judicial proceeding to consider the charges against plaintiff on June 9, 2010. Id.
at 031, 207; see also Def. Mot. at 4; Compl. ¶ 44. During these proceedings, the Commanding
General Marine Corps Installations-East (“CG MCI-East”) found plaintiff to be guilty of the
charges of unauthorized absence, driving under the influence of alcohol, and incapacitation for
duty through wrongful indulgence. AR at 021-22, 026-27, 217; see also Compl. ¶¶ 49, 53; Def.
Mot. at 4-5. And so, the CG MCI-East imposed punishment, which consisted of a punitive letter
of reprimand, forfeiture of pay, and the convening of a board of inquiry to show cause why
plaintiff should be retained in the USMC. Id.

       On July 2, 2010, plaintiff received another adverse fitness report that was triggered by his
non-judicial proceeding. AR at 033; see also Def. Mot. at 5. On July 8, 2010, plaintiff
submitted a rebuttal challenging the fitness report and he also challenged several aspects of his
USMC disciplinary proceedings. AR at 033-35. Specifically relevant to this dispute, plaintiff
alleged that a stipulation of facts that he signed prior to the non-judicial proceeding was missing
important information and that, “[g]iven the duress of the situation, refusing to sign that
stipulation would have broken the pretrial agreement, forcing [him] back to general court martial
where [he] faced the risk of a federal conviction.” Id. at 034; see also Compl. ¶¶ 59-61; Def.
Mot. at 5. As a result of plaintiff’s statement, the CG MCI-East initiated an Inspector General
inquiry to determine whether plaintiff’s allegations of a “duress of the situation” met the legal
definition of “duress.” AR at 035, 040; see also Compl. ¶ 61-63, 65-67; Def. Mot. at 5. On
September 14, 2010, the Inspector General found that plaintiff’s allegation of duress was not
substantiated by the evidence. AR 043; see also Def. Mot. at 6.

       On January 12-13, 2011, a board of inquiry was convened to make a recommendation
regarding plaintiff’s retention in the USMC, due to the allegations of misconduct and
substandard performance brought against plaintiff. AR at 045-046, 278-79; see also Def. Mot. at
7. On February 3, 2011, a report of the board of inquiry recommended that plaintiff “be
separated from Naval Service and that his service be characterized as General (under honorable
conditions).” AR at 046; 312-14; see also Compl. ¶ 71; Def. Mot. at 7.

       Plaintiff unsuccessfully contested the results of the board of inquiry by submitting a
respondent statement to a board of review. AR at 323-26. And so, plaintiff was ultimately


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discharged from the USMC with a general discharge under honorable conditions on October 7,
2011. Id. at 463-69, 526-29; see also Def. Mot. at 7-9; Compl. ¶¶ 2, 76-77, 81.

       On November 4, 2012—after his involuntary separation from the USMC—plaintiff filed
an application for correction of his military record with the BCNR, in which he challenged
several aspects of his involuntary separation and the military proceedings surrounding his
involuntary separation. AR at 121-53; see also Def. Mot. at 9; Compl. ¶ 82. In the application,
plaintiff requested that the BCNR correct his military record by: (1) directing the removal of the
fitness report covering the period of August 4, 2009 until January 25, 2010 from his naval
record; (2) setting aside plaintiff’s administrative separation from the USMC for misconduct, as
well as the board of inquiry that lead to that separation; (3) reinstating plaintiff to active duty and
providing plaintiff with back pay; and (4) ordering such additional relief as may be required to
afford plaintiff adequate relief. AR at 122.

       On August 13, 2015, the BCNR found that the evidence submitted by plaintiff “was
insufficient to establish the existence of probable material error or injustice.” Id. at 091-93; see
also Compl. ¶ 83; Def. Mot. at 10. And so, the BCNR denied plaintiff’s requests for relief. Id.

       Plaintiff commenced this action on October 4, 2016. See generally Compl.

       B.      Procedural History

       On October 4, 2016, plaintiff filed the complaint in this military pay action. Id. On
February 15, 2017, the government filed a motion for remand in this matter to the BCNR. See
generally Def. Mot.

       On March 9, 2017, plaintiff filed a response to the government’s motion for remand. See
generally Pl. Resp. On March 24, 2017, the government filed a reply in support of its motion for
remand. See generally Def. Reply.

       The government’s motion for remand having been fully briefed, the Court addresses the
pending motion.




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III.   LEGAL STANDARDS

       A.        RCFC 52.2 And Motions For Remand

       The Tucker Act grants this Court the authority “to remand appropriate matters to any
administrative or executive body or official with such direction as it may deem proper and just.”
28 USC §1491(a)(2). In addition, RCFC 52.2 provides the procedural framework that governs
the remand process. RCFC 52.2; see also Santiago v. United States, 71 Fed. Cl. 220 (2006)
(denying the government’s motion for partial dismissal and for judgment upon the administrative
record, granting in part plaintiffs’ cross-motion for judgment on the administrative record, and
remanding the case to the Secretary of the Army for further proceedings.).

       In this regard, RCFC 52.2 provides that, “[i]n any case within its jurisdiction, the court,
on motion or on its own, may order the remand of appropriate matters to an administrative or
executive body or official.” RCFC 52.2. RCFC 52.2 further provides that the Court’s remand
order must direct the parties as the Court deems proper; establish the duration of the remand for a
period of up to six months; specify whether Court proceedings will be stayed during the remand
period; and ask the parties to report to the Court at least every 90 days regarding the status of the
remand proceedings. Id. A certified copy of the Court’s remand order must also be served on
each party, as well as “the administrative or executive body or official to whom the order is
directed.” Id.

       The Supreme Court has also held that, except in rare circumstances, a remand to an
agency is appropriate for additional investigation or explanation, “[i]f the record before the
agency does not support the agency action, if the agency has not considered all relevant factors,
or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the
record before it.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). This is so
because, “[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.” Id.

       Similarly, the United States Court of Appeals for the Federal Circuit has explained that a
remand to an agency may be appropriate where, an agency seeks “a remand because of
intervening events outside of the agency's control,” like “a new legal decision or the passage of
new legislation,” and that “[a] remand is generally required if the intervening event may affect
the validity of the agency action.” SKF USA Inc. v. United States, 254 F.3d 1022, 1028 (Fed.

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Cir. 2001) (citations omitted). But, even where there are no intervening events, an agency may
request a remand without confessing error, in order to reconsider its previous position. Id. at
1029. In such a situation, “the reviewing court has discretion over whether to remand.” Id.
(citing Southwestern Bell Tel. Co. v. Fed. Communications Comm’n, 10 F.3d 892, 896 (D.C. Cir.
1993)).

          An agency may also request a remand “because it believes that its original decision is
incorrect on the merits and wishes to change the result.” Id. And so, a “remand to an agency is
generally appropriate to correct simple errors, such as clerical errors, transcription errors, or
erroneous calculations.” Id. (citation omitted). In addition, while an agency’s request for a
remand “may be refused if [it] is frivolous or in bad faith,” if an agency’s concerns are
“substantial and legitimate, a remand is usually appropriate.” Id.

IV.       LEGAL ANALYSIS

          A.     A Remand Of This Matter Is Appropriate

          A remand of this matter to the Board for Correction of Naval Records is appropriate and
warranted. In its motion for remand, the government seeks a remand of this matter to the BCNR,
because that board has not considered all of the relevant factors regarding whether the Secretary
of the Navy’s action in involuntarily separating plaintiff from the USMC was in accordance with
applicable regulations. Def. Mot. at 1. Specifically, the government requests that this matter be
remanded to the BCNR so that the board can consider: (1) whether the Assistant Secretary of the
Navy (Manpower & Reserve Affairs) followed the applicable regulations in approving the
recommendation of the board of inquiry to separate plaintiff from the USMC; (2) whether the
board of inquiry’s consideration of allegedly protected communications was in accordance with
the Military Whistleblower Protection Act; and (3) which documents constitute the
administrative record for this matter. Id. at 1-2, 11-12.

          Plaintiff agrees that a remand to the BCNR is warranted. Pl. Resp. at 1-3. But, plaintiff
seeks to expand the scope of any remand to the BCNR to also include consideration of: (1)
whether the inclusion in plaintiff’s Official Military Personnel File of the adverse fitness report
covering the reporting period ending January 25, 2010, violated certain military regulations; (2)
whether the BCNR applied the proper rules of evidence; and (3) any additional evidence
presented by plaintiff. Id. at 2-4.

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       The Supreme Court has held that a remand to an agency is appropriate for additional
investigation or explanation, if the agency has not considered all relevant factors. Fla. Power &
Light Co., 470 U.S. at 744. That is precisely the circumstance presented in this case.

       The parties agree that the BCNR has not yet fully considered, or addressed, whether the
Assistant Secretary of the Navy (Manpower & Reserve Affairs) followed the applicable
regulations in approving the recommendation to involuntarily separate plaintiff from the USMC,
nor whether the board of inquiry’s consideration of allegedly protected communications was in
accordance with the Military Whistleblower Protection Act. Def. Mot. at 1-2, 11-12; See
generally Pl. Resp. Although the government does not believe that a remand is necessary for the
BCNR to consider whether the inclusion an adverse fitness report for the period ending on
January 25, 2010 in plaintiff’s Official Military Personnel File violated any military
regulations—or whether the BCNR applied the proper rules of evidence in considering plaintiff’s
request to correct his naval records—as plaintiff requests, the government does not a oppose a
remand to the BCNR to consider those matters. Def. Reply at 1-2. And so, a remand to the
BCNR to consider and address these issues is warranted and appropriate in this case.

       In addition, a remand to the BCNR will clarify what documents are a part of the
administrative record in this matter and aide the Court in resolving this dispute. As the
government notes in its motion for remand, the BCNR’s letter denying plaintiff’s request to
correct his naval records does not state whether a pertinent report by the Department of Defense
Inspector General factored into the board’s decision to deny plaintiff’s request. Def. Mot. at 1-2.
The BCNR’s letter denying plaintiff’s request also makes reference to materials that are not
contained in the administrative record currently before the Court. Id. And so, the BCNR’s full
consideration of all of these matters is warranted before the Court proceeds with resolving this
dispute.

       In sum, the Court concurs with the parties’ view that the Court should refrain from
reviewing the matters raised in plaintiff’s complaint until the BCNR has had the opportunity to
fully consider and address the outstanding issues discussed above. And so, the Court grants the
government’s motion for remand of this matter to the BCNR. RCFC 52.2.




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V.      CONCLUSION

     For the foregoing reasons, the Court GRANTS the government’s motion for remand.
Pursuant to RCFC 52.2, this matter is REMANDED to the BCNR until December 15, 2017, and
further proceedings in this matter are STAYED during the remand period, to allow the BCNR to:

        1. Review plaintiff’s complete record to determine if regulations were complied with in
           conducting plaintiff’s separation from the USMC and to state how the Department of
           Defense Inspector General’s report factors into the BCNR’s decision relating to
           plaintiff’s allegation that his separation was a reprisal action;
        2. Determine whether the Assistant Secretary of the Navy (Manpower & Reserve
           Affairs)’s action involuntarily separating plaintiff from the USMC was in accordance
           with applicable regulations;
        3. Consider, comment upon, and/or correct any substantive claim of regulatory
           violations related to:
               (a) the preparation of plaintiff’s January 25, 2010 fitness report;
               (b) the submission and inclusion in the board of inquiry of a nonpunitive letter of
                   caution; and
               (c) the inclusion, consideration and use of plaintiff’s allegedly protected
                   statements to the Department of Defense Inspector General, and/or chain of
                   command, in the board of inquiry’s deliberations and decision to recommend
                   involuntary separation from the USMC, as well as the consideration of those
                   allegedly protected statements in the making of recommendations for adverse
                   personnel actions by the convening authority and the Deputy Commandant,
                   and in the Assistant Secretary of the Navy (Manpower & Reserve Affairs)’s
                   final involuntary separation decision;
        4. Determine—if the BCNR identifies materially errant evidence or other submissions
           before the board of inquiry, or finds that the board of inquiry considered improper
           matters—what effect those errors had on the board of inquiry’s deliberations and on
           the Assistant Secretary of the Navy (Manpower & Reserve Affairs)’s decision to
           involuntarily separate plaintiff;
        5. Consider any information provided on remand by plaintiff within 30 days of this
           remand order;
        6. Ensure that the administrative record is complete and work with plaintiff to ensure
           that plaintiff’s advisory opinion rebuttal letter, as well as the audio transcripts
           enclosed with plaintiff’s original BCNR petition, are present in the materials that the
           BCNR considers; and


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   7. Provide plaintiff any relief that the BCNR determines that plaintiff is entitled to
      receive and issue a final decision explaining in detail the rationale supporting that
      decision within 180 days of the Court's remand order.
It is further ORDERED that:

   1. Plaintiff shall raise all of his outstanding arguments related to his involuntary
      separation from the USMC before the BCNR during the remand period;
   2. The parties shall FILE a joint status report every 28 days, during the remand period,
      regarding the status of the remand proceedings;
   3. Pursuant to RCFC 52.2(e), on or before December 15, 2017, the BCNR shall forward
      to the Clerk of Court two copies of the final decision issued in response to this
      remand order; and
   4. In accordance with RCFC 52.2(f), 30 days after the BCNR’s final decision is
      forwarded to the clerk for filing on or before December 15, 2017, the parties shall
      FILE a joint notice stating their respective views on:
          (a) Whether the BCNR’s final decision affords a satisfactory basis for disposition
              of the case; or
          (b) Whether further proceedings before the Court are required and, if so, the
              nature of such proceedings. RCFC 52.2.

   IT IS SO ORDERED.



                                              s/ Lydia Kay Griggsby
                                              LYDIA KAY GRIGGSBY
                                              Judge




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