ORG|NAL

In the United States Court of Federal Claims

FILED

NO. 11-5950
(originallyl~“iled;rune13,2014)‘ . JUL 15 2014

(Reissued: July 14, 2014) U_S_ COURT OF
FEDERAL CLA||V|S

LOUIS A. ARROYO III, Military Pay Act, 37 U.S.C. § 204;
Judicial Review of Military Decisions;
D0DI 1241.2; Extended Active Duty;
DODI 6485.0l; Human Immunodeflciency
Virus (HIV); Disability Evaluation
System (DES); Constructive Service
Doctrine; Unauthorized Acts by

G0vemment Agents

Plaintiff,
v.
THE UNITED STATES OF AMERICA,

Defendant.

\é§\./\/\/\/\/L/\_/\J\J\Jé

Louis A. Arroyo, III, Fort Walton, FL, Plaintiff, pro se.

Sarah M Valentz`, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, for defendant.

OPINION AND ORDER

KAPLAN, Judge:

Plaintiff Sergeant Arroyo, a member of the Air Force Reserve, has filed this lawsuit pro
se, claiming that the Air Force improperly allowed his active duty orders to expire when,
according to Sergeant Arroyo, he was entitled under applicable regulations to remain on active
duty for disability processing. He seeks restoration to active duty for disability processing, back
pay, an admonishment of the Air Force Reserve Command for delaying and mismanaging his
disability processing, and "such other relief as the Court deems just and proper." Compl. (Prayer

1 This opinion was originally filed under seal. The Court allowed the parties until July 2, 2014 to
submit proposed redactions, but they submitted none. The Court now reissues the full opinion,
unsealed.

for Relief). Pending before the Court are the parties’ cross motions for judgment on the

administrative record.z
The govemment’s motion for judgment on the administrative record is GRANTED, for

the reasons set forth in greater detail below.

BACKGROUND

Plaintiff Sergeant Arroyo served in the United States Air Force ("Air Force") from
August 1975 to June 1985 and has been a member of the Air Force Reserve since December 12,
2002. Compl. 11 2. On May 24, 2006, the Air Force placed Sergeant Arroyo on active duty to
serve in support of Operation Iraqi Freedom as a firearms instructor attached to the 96th Security
Forces Squadron out of Eglin Air Force Base, Florida. Def.’s Mot. to Dismiss or for J. on

Admin. R. 4, ECF No. 46 [hereinafter "Def.’s Mot."].

I. Sergeant Arroyo’s Health Conditions

During a routine health screening on July l4, 2009, Sergeant Arroyo tested positive for
Human Immunodeficiency Virus ("HIV"). Admin. R. ("AR") 757. He was determined fit for
duty, but, as dictated by Department of Defense ("DoD") and Air Force policy on HIV, he was
subject to duty restrictions. Particularly relevant to this case, HIV positive members are
ineligible for extended active duty_that is, duty for a period of more than thirty days. Dep’t of
Def. Instruction ("DoDI") 6485.0l 1[ 6.2.5 and Air Force Instruction ("AFI") 48-135 111 3.8,
Al0. 1 .2 [hereinafter "HIV regulation"].3 In spite of this regulatory restriction, his unit
continued to authorize orders of more than thirty days, in attempts to avoid adding the stress of
unemployment to the stress of his diagnosis/4 §§ AR 781-838.

2 Per the Court’s July l9, 2013 order, three of Sergeant Arroyo’s filings (ECF Nos. 9, 32, and 38)
are treated collectively as a motion for summary judgment, or in the altemative, for judgment on
the administrative record. As stated below, the Court treats both this motion and the
govemment’s motion to dismiss or, in the alternative, for judgment on the administrative record
as cross motions for judgment on the administrative record only.

3 When asked at oral argument, the government could not explain the basis for this DoD
regulation that singles out reservists who test positive for HIV and prohibits them from serving
on "active duty for a period of more than 30 days." § Tr. 4-7, ECF No. 54. This restriction
apparently does not apply to any other chronic conditions. Unfort\mately for Sergeant Arroyo,
however, the existence of this restriction proves fatal to his claimed entitlement to be kept on
active duty orders pending completion of disability processing, for the reasons set forth below.

4 After his HIV diagnosis, Sergeant Arroyo’s unit encountered difficulty in getting approval for
orders exceeding thirty days. § AR 306. Sergeant Arroyo’s squadron commander, therefore,
planned to arrange "multiple blocks of 30 day orders." AR 517. On March 18, 2010, orders
spanning from April 1 to April 30, 2010 were approved. AR 164. Meanwhile, however,
Sergeant Arroyo’s unit had failed to terminate a set of earlier orders, which were supposed to
expire in February 2010, § AR 228. In response to concems that Military Personnel
Appropriations should not have funded Sergeant Arroyo’s overstayed orders, on May 3, 2010,
Sergeant Arroyo’s Wing Commander authorized his placement on Reserve Personnel

As a result of this stress, Sergeant Arroyo developed depression, anxiety, and insomnia.
AR 912-13 (showing medical records describing depression and anxiety as secondary to HIV
diagnosis "and associated psychosocial stressors (changes in job functioning, MEB, relational
difficulties)"). He also complained of back pain and arthritis pain in his hands. He was
diagnosed with osteoarthritis on April 23, 20l0. AR 983. His rheumatologist noted that
Sergeant Arroyo exhibited "prominent Herberden node deforrnities of bilateral hands" and that
"imaging profile of the hands confirm advanced erosive OA [osteoarthritis]." AR 982. With
respect to Sergeant Arroyo’s back, the rheumatologist noted "age appropriate mild degenerative
change in the cervical and thoracic spinal region." AR 981. The rheumatologist further noted
that "[a] great number of his problems are related to unspecified myalgia-arthralgia. I question
whether these may relate to deconditioning, stress related magnification of symptoms and/or
related to chronic viral issues and polydrug therapy." I_d.

II. Sergeant Arroyo’s Disability Pr0cessing

On June l, 2010, Sergeant Arroyo’s primary care manager, Lt. Col. Patrick Danaher,
recommended initiation of the Disability Evaluation System ("DES") process_that is, the
formal set of procedures for determining whether a member of the military is fit for duty or
should be separated or retired with disability benefits-for the diagnosis of erosive osteoarthritis.
AR 221. DES processing consists of a Medical Evaluation Board ("MEB"), which confirms the
member’s diagnosis and sets duty limitations, and a Physical Evaluation Board ("PEB"), which
assigns the member a disability rating and assesses the member’s entitlement to benefits upon his
separation or retirement. DoDI 1332.38 E3.Pl.2.l, E3.Pl.3.l.

A sick or injured member is entitled to DES processing only if he or she incurred the
illness or injury in the line of duty ("ILOD"). 10 U.S.C. § 1206 (2012); DoDI 1332.38 E3.P2.5.
Thus, Master Sergeant Joe Lofria of Sergeant Arroyo’s unit told Dr. Danaher that "[w]e will
need to wait until there is a final determination on the LOD . . . before we can move forward
with a new MEB." AR 221. On June 10, Sergeant Arroyo requested and submitted the
paperwork required for the LOD. AR 935. The LOD determination process did not begin until
July 10, 20l0. § AR 942.

Sergeant Arroyo’s case progressed rather slowly through the several layers of review in
the line-of-duty determination process. Although the officer appointed to investigate Sergeant
Arroyo’s case recommended a finding of ILOD, on April 25, 2011, the "Approving Authority"
overruled that finding and issued a final determination that Sergeant Arroyo’s osteoarthritis
existed prior to service ("EPTS"). g AR 945-48. On May 6, 201 l, Sergeant Arroyo requested
a reinvestigation of the final LOD determination, but his commander denied the request. AR
1013-15. Later, Sergeant Arroyo’s LOD determination was reviewed by the Air Reserve
Command Headquarters ("HQ ARC"), pursuant to AFI 36-29lO 1 3.13. On January l9, 2012,

Appropriations-funded orders, retroactive to February 23, 2010. I_d_. Therefore, although
Sergeant Arroyo was serving on orders of thirty days in April 2010, the record also reflects that
he was serving on orders of thirty-one days or more between February and May 2010.

HQ ARC rendered an administrative determination that Sergeant Arroyo’s osteoarthritis was
ILOD. Def.’s Reply Ex. A, ECF No. 12. Thus, approximately a year and a half after the LOD
process began, he was referred to the MEB for initiation of DES processing. § §

III. Sergeant Arroyo’s Release from Active Duty and His Ensuing Lawsuit

In the meantime, during the pendency of his LOD determination, Sergeant Arroyo’s
active duty orders expired on February 27, 2011. Compl. 1111 6, 21; AR 2-3. Believing that DoDI
1241 .2 11 6.6.3.2 entitled him to remain on active duty until he received full DES processing,
Sergeant Arroyo lodged a complaint with his command and submitted a congressional complaint
to his senator and congressman. Compl. 1111 14-15. When these avenues proved unavailing,
Sergeant Arroyo filed the present suit in this Court on September 16, 2011. In his complaint, he
asserted a claim under the Military Pay Act, 37 U.S.C. § 204 (2006), alleging that his orders
should not have been allowed to expire in February 2011 and asking the Court to order his
restoration to active duty and to award him back pay in the amount he would have received if he
had remained on active duty, among other forms of relief.s In February 2012, after HQ ARC
rendered its ILOD fmding, the Air Force notified Sergeant Arroyo that it was willing to evaluate
his medical conditions through the DES. § Def.’s Mot. to Dismiss, in Part, and Mot. for
Remand 4-5, ECF No. 8 [hereinafter "Def.’s Mot. to Dismiss & Remand"]. According to the
government, however, Sergeant Arroyo refused to cooperate because he insisted that he must be
reinstated to active duty to undergo DES processing. Def.’s Mot. 40.

On February 10, 2012, the government filed a motion to dismiss, in part, Sergeant
Arroyo’s suit and a motion to remand the case to the Air Force Board for the Correction of
Military Records ("AFBCMR"). The govemment requested that the Court dismiss Sergeant
Arroyo’s complaint as moot because the Air Force had, by this time, already determined that he
was entitled to DES processing and was prepared to initiate an MEB. Def.’s Mot to Dismiss &
Remand 4. The govemment also requested that the Court remand Sergeant Arroyo’s case to the
AFBCMR to "enable the Air Force to create a cohesive and coherent record regarding all aspects
of [Sergeant] Arroyo’s claims," "to consider all of [Sergeant] Arroyo’s claims in a
comprehensive manner," and "to fully develop his claims and to present evidence as part of the
record to be considered by the Secretary of the Air Force through the AFBCMR." I;d. at 6.

On July 19, 2013, the Court denied the govemment’s motion to remand and denied
without prejudice the government’s partial motion to dismiss, Order, July 19, 2013, ECF. No.
43. "Concerning the motion to remand, the Court [did] not think that it [was] appropriate to
remand this matter over the plaintiff s objection. Review of a matter by a military correction
board is an option, not a requirement . . . ." I_d. at 1 (citing Martinez v. United States, 333 F.3d
1295, 1301, 1304 (Fed. Cir. 2003) (en banc)). Moreover, "[c]oncerning the government’s partial
motion to dismiss," the court found "that for this particular matter, issues bearing on the
appropriate remedies available to plaintiff cannot be determined prior to (or separate from) a
resolution of the question of liability. . . . [T]he govemment is free to revisit the issue in its
motion for judgment on the administrative record." Order at 2. The Court also noted that it

5 The case was initially assigned to Judge Wolski. On November 25, 2013, the case was
transferred to the undersigned.

would treat three previous filings by Sergeant Arroyo collectively as a motion for summary
judgment or, in the alternative, for judgment on the administrative record. I_d.

On August 2, 2013, the government filed a Motion to Dismiss pursuant to Rule l2(b)(6)
of the Rules of the Court of F ederal Claims ("RCFC") and a Cross Motion for Judgment upon
the Administrative Record pursuant to RCFC 52.1.6 On May 20, 2014, oral argument was held.

The case is now ripe for decision.
DISCUSSION

I. Jurisdicti0n

Jurisdiction over Sergeant Arroyo’s claim arises from the Tucker Act, 28 U.S.C. §
l49l(a)(1) (20l2) and the Military Pay Act, 37 U.S.C. § 204. S_ee_ Antonellis v. United States,
723 F.3d l328, 1331 (Fed. Cir. 2013). The Tucker Act confers jurisdiction on this court and
waives sovereign immunity, ge Greenlee Cnty., Ariz. v. United States, 487 F.3d 871, 875 (Fed.
Cir. 2007); the Military Pay Act constitutes the requisite money-mandating authority, see Dysart
v. United States, 369 F.3d l303, 1315 (Fed. Cir. 2004). Specifically, the Military Pay Act
entitles a military member who was wrongfully separated from service to the pay that he would
have received but for the unlawful action. Roth v. United States, 378 F.3d l37l, 1384 (Fed. Cir.
2004). In addition, as explained by the Federal Circuit,

although the Court of Federal Claims does not possess general equity jurisdiction,
under the Tucker Act, in actions for monetary relief, ‘[t]o provide an entire
remedy and to complete the relief afforded by the judgment, the court may, as an
incident of and collateral to any such judgment, issue orders directing restoration
to office or position, placement in appropriate duty or retirement status, and
correction of applicable records . . . .

I_cL (quoting 28 U.S.C. § l491(a)(2)).

6 Because, in reaching a decision in this matter, the Court considers materials outside the
pleadings, pursuant to RCFC 12(d), the Court treats the government’s motion under RCFC
12(b)(6) as part of its cross motion for judgment on the administrative record under RCFC 52.1.
§ RCFC 52.1 rules committee note (2006) ("This rule applies whether the court's decision is
derived in whole or in part from the agency action reflected in the administrative record.").
Although RCFC l2(d) requires the Court to treat an RCFC 12(b)(6) motion as one for summary
judgment, this Court in Peterson v. United States, 104 Fed. Cl. 196, 203-04 (2012) recognized
that, where a case turns on action taken by an administrative agency, "treatment of defendant’s
motion for . . . dismissal as one for judgment upon the administrative record pursuant to RCFC

52.l, as opposed to summary judgment, is appropriate."

Moreover, because the Court disposes of the case by granting judgment for the
government on the administrative record, in denying Sergeant Arroyo’s motion for summary
judgment, this opinion also omits discussion of summary judgment standards.

II. Standard of Review

RCFC 52.1, which governs motions for judgment on the administrative record,
"provide[s] for trial on a paper record, allowing fact-finding by the trial court." Barmum Inc. v.
United States, 404 F.3d l346, 1356 (Fed. Cir. 2005).7 Therefore, the standard of review for a
motion for judgment on the administrative record differs from that for a motion for summary
judgment. I;d. at 1354-55. Unlike summary judgment, for instance, "a genuine dispute of
material fact does not preclude a judgment on the administrative record." Sierra Nevada Corp. v.
United States, 107 Fed. Cl. 735, 751 (2012). To the contrary, "[t]o review a motion or cross-
motions under RCFC 52.l(c), the court asks whether, given all the disputed and undisputed facts,
a party has met its burden of proof based on the evidence in the record." Jordan Pond Co. LLC
v. United States, 115 Fed. Cl. 623, 630 (2014). In the context of a military pay case, the
plaintiff s burden is to show, by "cogent and clearly convincing evidence," Prochazka v. United
States, 90 Fed. Cl. 481, 491 (2009), that the agency’s decision was "arbitrary, capricious,
unsupported by substantial evidence, or contrary to law." Metz v. United States, 466 F.3d 991,
998 (Fed. Cir. 2006) (quoting Porter v. United States, 163 F.3d 1304, 1312 (Fed. Cir. 1998).

 

 

Judicial review of military activities is limited. § Mu;phy v. United States, 993 F.2d
871, 872-73 (Fed. Cir. 1993). In general, the Court reviews the merits of a military decision

under the deferential standard of the Administrative Procedure Act, 5 U.S.C. § 706 (2012),
which assesses whether the decision was "arbitrary, capricious, unsupported by substantial
evidence, or otherwise not in accordance with law." g Walls v. United States, 582 F.3d 1358,
1367 (Fed. Cir. 2009); Pearl v. United States, 111 Fed. Cl. 301, 303 n.l (2013). While this
limited review gives the military broad discretion, the military "is nevertheless bound to follow
its own procedural regulations." Mgphy, 993 F.2d at 873. The Court "determines whether the
procedures were followed by applying the facts to the statutory or regulatory standard." I_d;

III. Substantive Law

The cross motions under the Court’s consideration here raise issues related to two DoD
regulations. Tlie first is the HIV regulation, which provides, in relevant part, that "[e]ligibility
for extended AD (duty for a period of more than 30 days) shall be denied to those RC members
with serologic evidence of HIV infection (except under conditions of mobilization and on the
decision of the Secretary of the Military Department concemed)."s DoDI 6485.01 11 6.2.5.

The second is DoDI 1241.2 11 6.6.3.2, which, for purposes of this Opini0n, the Court
refers to as the "continued active duty rule." lt states:

7 RCFC 52.1 "replaces an earlier rule, RCFC 56.1." RCFC 52.1 rules committee note. Barmum,
404 F.3d at 1354-56, refers to RCFC 56.1, but its analysis of the rule applies equally to RCFC

52.l.

8 As with respect to the continued active duty rule, the Air Force has codified the DoD’s HIV
regulation within its own regulations at AFI 48-135 111 3.8, A10.1.2. Specifically, 11 A10.1.2
provides, in relevant part, that "ARC members with laboratory evidence of HIV infection are
ineligible for extended active duty for a period of more than 30 days."

A Reserve component member on active duty under a call or order to active duty
specifying a period of 31 days or more, who incurs or aggravates an injury,
illness, or disease in the line of duty shall, with the member’s consent, be
continued on active duty upon the expiration of call or order to active duty until
the member is determined fit for duty or the member is separated or retired as a
result of a Disability Evaluation System determination 9
Thus, the rule appears to set as prerequisites for continued active duty for DES processing that a
reservist be on active duty orders of thirty-one days or more and that he incurred the illness or

injury ILOD.

When a reservist is released from active duty wrongfully--whether in violation of the
continued active duty rule or otherwise-he can recover active duty pay for the period in which
he was entitled to remain on active duty under the "constructive service doctrine." § Bamick
v. United States, 591 F.3d 1372, 1379 (Fed. Cir. 2010). "In genera1, a reservist is entitled to
active duty pay only for the period that he is actually on active duty." I_d. The constructive
service doctrine, however, "was designed to permit the award of back pay to a service person
who had been injured by the improper termination of his service, and thereby denied the
financial and other benefits he should and would have received but for the improper
termination." Christian v. United States, 337 F.3d 133 8, 1347 (Fed. Cir. 2003).

IV. Applicati0n of Law

Sergeant Arroyo has premised his lawsuit on the continued active duty rule, claiming that
he was entitled to remain on active duty upon the expiration of his orders in February 2011.
According to Sergeant Arroyo, he met the rule’s two prerequisites because, notwithstanding the
HIV regulation’s prohibition, his unit had in fact placed him on orders of thirty-one days or
more, and, ultimately, his osteoarthritis was ILOD. Furthermore, although Sergeant Arroyo does
not explicitly invoke the constructive service doctrine, he claims that the continued active duty
rule entitled him to remain on active duty for DES processing of his osteoarthritis and asks the
Court to award him back pay. Therefore, he essentially argues that the constructive service
doctrine should apply in his case.

The govemment, on the other hand, argues that Sergeant Arroyo met neither prerequisite
for continued active duty and is not entitled to constructive active duty pay. Regarding the

9 See also Air Force Reserve Command Instruction (AFRCI) 36-3 004 11 4.1, which states the
same rule but in slightly different language:

Members on active duty . . . orders for a specified period of 31 days or more are
not involuntarily released from their orders if they incur a line of duty medical
condition. These members have their orders extended until the medical condition
is resolved or can no longer be materially improved by further hospitalization or
treatment, and the case has been processed and finalized through the disability
evaluation system (DES), or the medical condition has been determined not to be

in the line of duty.

prerequisite that he be on orders of thirty-one days or more,l° the government argues that
"Sergeant Arroyo was required to be on orders of 30 days or less" under the HIV regulation.
Def`.’s Mot. 35. Thus, the government argues, "[t]he Air Force should not be bound to grant him
the rights of a service member diagnosed with a disability while on orders of 31 days or more
merely because his unit disregarded instructions from both the Department of Defense and the
Air Force." I;d. In support of this argument, the govemment cites Urban Data Systems, Inc. v.
United States, 699 F.2d 1147, 1153 (Fed. Cir. 1983), for the principle that "the United States is
not bound by its agents acting beyond their authority and contrary to regulation." Def`.’s Mot.

35.

The Court agrees with the govemment on this point, which is dispositive of Sergeant
Arroyo’s claims. Although the only orders documented in the administrative record specify a
period of thirty-one days or more, the Court cannot give legal effect to such orders because they
are "contrary to regulation"_in particular, the HIV regulation. Therefore, without valid orders
of thirty-one days or more, Sergeant Arroyo did not meet the first prerequisite for application of
the continued active duty rule, and he had no entitlement to continued active duty or active duty
pay following the expiration of his orders. _Sie Barnick, 591 F.3d at 1379-80 (holding that
plaintiff was not entitled to constructive active duty pay for the period in which he underwent
disability processing because he "was a reservist who had only been on temporary active duty
assignments never longer than thirty days").“

Indeed, the predecessor court to the Federal Circuit similarly refused to give effect to an
invalid tenn of active duty in Strahle v. United States, 602 F.2d 344, 347 (Ct. Cl. 1979).12 In
Strahle, the Army Office of Personnel Operations granted the plaintiff’ s request for an indefinite

10 In addition to its argument that Sergeant Arroyo did not meet the prerequisite under the
continued active duty rule that he be on orders of thirty-one days or more, the government also
argues that Sergeant Arroyo did not meet the prerequisite that his condition was ILOD.
"[R]eservists only qualify for Disability Evaluation System processing for conditions acquired in
the line of duty," the govemment contends, "and the line of duty investigation of Sergeant
Arroyo’s osteoarthritis had not yet been completed at the time his orders expired." Def.’s Mot.
33. Because the Court finds that Sergeant Arroyo did not meet the first prerequisite, however,
addressing the government’s argument regarding the second prerequisite is unnecessary.
Without orders of thirty-one days or more, Sergeant Arroyo was not entitled to remain on active
duty under the continued active duty rule, and on that basis alone, judgment for the govemment
is warranted.

11 The Court notes, however, that under the reasoning in Barnick, Sergeant Arroyo would have
been entitled to judgment but for the HIV regulation’s prohibition on reservists who are HIV
positive from serving on orders of thirty-one days or more, Barnick 591 F.3d at 1379
(distinguishing Barnick’s case from those in which "the plaintiff was on extended active duty
and able to continue on active duty when the improper action leading to his separation from the
service occurred").

12 Court of Claims decisions are binding on this Court unless overruled by the Federal Circuit.
§ S. Cog;. v. United States, 690 F.2d 1368, 1370-71 (Fed. Cir. 1982).

term of active duty, even though terms for indefinite service were explicitly prohibited in a
directive from the Assistant Deputy Chief of Staff for Personnel. I;d. When the plaintiff was
released from active duty after only two years, he filed suit seeking, among other things, active
duty pay from the date of his release from active duty until the date of judgment. § at 346. The
Court of Claims, however, granted summary judgment for the govemment. I_c_L at 348. "As
[approval of plaintiff” s indefinite ter1n] was unauthorized," the court held, "the Government is
not bound by it and was free to substitute an active duty term with a specific expiration date."

LL at 347, Sergeant Arroyo’s orders of thirty-one days or more were similarly unauthorized
because they conflicted with the HIV regulation, and therefore, despite the continued active duty
rule, the Air Force was free to allow his active duty orders to expire.

At oral argument, Sergeant Arroyo contended that the continued active duty rule was
"superior authority" to the HIV regulation, and therefore, the HIV regulation should "not negate"
or "supersede" the requirements of the continued active duty rule. Tr. 35. The Court, however,
cannot create a hierarchy among DoD instructions, and, in any event, the continued active duty
rule and the HIV regulation are not in conflict and can be applied without one "negating" or
"superseding" the other. On the other hand, the HIV regulation’s prohibition on active duty
orders of thirty-one days or more and Sergeant Arroyo’s actual orders of more than thirty-one
days present mutually exclusive altematives. Taking instruction from Strahle, 602 F.Zd at 347,
and related cases, the Court holds that the HIV regulation must control.

Although, as a result of this Opinion, Sergeant Arroyo cannot be restored to active duty
or recover active duty pay, it is worth noting that the govemment’s offer to provide him DES
processing stands. If Sergeant Arroyo accepts this offer, he will have an opportunity to seek
disability retirement benefits or severance pay. § 10 U.S.C. §§ l204, 1206.

CONCLUSION

In light of the foregoing, the govemment’s motion for judgment on the administrative
record is GRANTED, and Sergeant Arroyo’s motion is DENIED. The Clerk is directed to enter

judgment accordingly.

IT IS SO ORDERED.

éc/m

ELAINE D. KAPLAN
Judge

