           In the United States Court of Federal Claims
                                           No. 18-1116C
                                       Filed: April 20, 2020


 MARK R. FULLER,
                                                           Keywords: Military
                     Plaintiff,                            discharge; summary judgment;
                                                           RCFC 56; legal hold;
 v.                                                        mandatory retirement; drop
                                                           from rolls; military control;
 UNITED STATES,                                            Secretary of the Navy; res
                                                           judicata; claim preclusion
                     Defendant.


Brian Schenk, Midwest Military & Veterans Law, PLLC, Minneapolis, MN, for Plaintiff.

Daniel Herzfeld, Trial Attorney, Douglas K. Mickle, Assistant Director, Robert E. Kirschman,
Jr., Director, and Joseph H. Hunt, Assistant Attorney General, United States Department of
Justice, Civil Division, Commercial Litigation Branch, Washington, D.C., with whom were
James McKeon, Of Counsel, United States Department of the Navy, Office of the Judge
Advocate General, for Defendant.

                         MEMORANDUM OPINION AND ORDER

TAPP, Judge.

        In this military pay action, Plaintiff, Mark Fuller, a former Major in the United States
Marine Corps (“USMC”) Reserves, was dropped from the rolls following his guilty plea and
confinement for financial crimes stemming from a tour of service in Iraq in 2005. After
unsuccessfully petitioning the Board for the Correction of Naval Records, Fuller filed suit in this
Court on April 24, 2015. See Fuller v. United States, 127 Fed. Cl. 640 (2016). This Court
eventually granted the United States’ motion for judgment on the administrative record, thereby
resolving the case in favor of the United States. Id. at 647. In August of 2016, Fuller again
petitioned the BCNR, this time seeking reconsideration of its November 2013 decision. In May
of 2018, the BCNR denied Fuller’s request, concluding the Navy had properly separated Fuller
and finding no error or material injustice. Now, Fuller returns to the Court of Federal Claims
seeking review of the BCNR’s denial of his request for reconsideration.

       In his present Complaint, filed on July 31, 2018, Fuller alleges that the BCNR’s May
2018 decision was arbitrary, capricious, an abuse of discretion, unsupported by substantial
evidence, and contrary to law. He also argues, for the first time, that the Secretary of the Navy
(“the Secretary”), rather than the Commandant of the USMC, had the exclusive authority to
place Fuller’s retirement on legal hold while the USMC investigated Fuller’s misconduct.
(Compl. at ¶¶ 23, 76–79, ECF No. 1). On August 1, 2019, the United States filed the
Administrative Record (AR, ECF No. 17), and a Motion for Summary Judgment, or,
Alternatively, Judgment on the Administrative Record. (Def. Mot., ECF No. 19). On October 31,
2019, Fuller filed his Response and Cross-Motion for Judgment on the Administrative Record.
(Pl. Mot., ECF No. 23). On January 24, 2020, the United States filed its Response and Reply.
(Def. Resp., ECF No. 29). On March 9, 2020, Fuller filed his Reply. (Pl. Reply, ECF No. 24).

      This matter is now fully briefed and ripe for decision. The United States’ Motion for
Summary Judgment is GRANTED; the United States’ Motion for Judgment on the
Administrative Record and Fuller’s Cross-Motion for Judgment on the Administrative Record
are DENIED AS MOOT.

                                      I.    Background

        Fuller entered service in the USMC Reserves in 1992 after several years of active service
in the U.S. Army. (AR536, 565, 567). Fuller transitioned to active duty in 1994 and was
promoted to Major in 2002. (AR514, AR772). In 2003, Fuller was selected for a “very
competitive” position with the VMFAT-401 “Snipers,” a supersonic fighter squadron training
unit based in Yuma, Arizona. (See AR683). Fuller was described as an “[e]xemplary Marine
Officer,” who was “highly talented” and possessed “good judgment” and “superb leadership”
that made him a “force multiplier” within his unit. (AR666, 673, 677, 678). Fuller’s Reviewing
Officers consistently recommended him for promotion—one Colonel wished to “clone” him.
(See AR648).

        From February to September 2005, Fuller was deployed to Fallujah, Iraq. (AR387).
While in Iraq, Fuller served as Team Leader for a Civil Affairs Group, where he was responsible
for disbursing cash payments to Iraqi contractors for reconstruction work as part of the
Commander’s Emergency Response Program. (See AR8; AR386–87). During that time, Fuller
mailed approximately 20 envelopes to his ex-wife in the United States, which she believed
contained cash but was instructed not to open. (AR8, 386–391, 333). After he returned to the
United States in October 2005, Fuller made approximately 91 cash deposits in various personal
bank accounts, with each deposit totaling less than $10,000. (See AR8, 388–89). From October
2005 to April 2006, Fuller deposited over $440,000 in this manner. (AR8, 388). On January 9,
2006, Fuller cancelled a Navy Federal Credit Union deposit of $7,700 when Credit Union
personnel notified him the deposit would trigger a currency transaction report. (AR388).

        On January 24, 2009, Fuller requested voluntary retirement, to be effective August 1,
2009. (AR8). This request was modified to become effective July 1, and the modification was
approved on May 19, 2009. (AR8, 403). However, on May 25, 2009, the Naval Criminal
Investigative Service launched a criminal investigation into Fuller’s conduct while deployed in
Iraq. (AR8). Consequently, on June 5, 2009, Fuller’s retirement was placed on “legal hold” while
the investigation was pending, which froze all personnel actions related to Fuller. (See AR8, 37–
38); Fuller, 127 Fed. Cl. at 642. On June 25, 2009, Fuller, through his defense counsel, requested
he be released from the legal hold and permitted to retire on July 1, 2009. (AR8, 155–56). This
request was denied on July 16, 2009 due to the ongoing investigation. (AR157–59). Fuller
remained stationed in Arizona during the pendency of the investigation. Fuller, 127 Fed. Cl. at
642.

                                                2
        On May 11, 2010, the United States indicted Fuller in the District of Arizona for his
conduct in Iraq. (AR162–67). In the 22-count indictment, the United States alleged Fuller
violated 31 U.S.C. § 5324(a)(3) by structuring financial transactions to avoid the reporting
requirements of 31 U.S.C. § 5313(a). (Id.). Fuller pled guilty to two counts on August 4, 2010
and on January 10, 2011, the court sentenced him to confinement for a period of 12 months and a
day, followed by two years of supervised released, and fined him $198,710. (AR168–180). From
February 4 to December 16, 2011, Fuller remained in confinement and was classified as “IHCA”
or “in the hands of civilian authorities.” (AR180–81, 182).

       On June 22, 2011, the Commander of the USMC Central Command recommended that
the Deputy Commandant for Manpower and Reserve Affairs drop Fuller from the rolls of the
USMC Reserves, pursuant to 10 U.S.C. § 12684. (AR47–49). 1

        On November 28, 2011, Fuller was notified by the Assistant Deputy Commandant for
Manpower and Reserve Affairs that the Commandant intended to recommend that the Secretary
of the Navy drop Fuller from the rolls. (AR50–51). Fuller acknowledged receipt of this notice on
December 6, 2011 and stated he had met with a Judge Advocate and intended to consult civilian
counsel and submit a rebuttal of the recommendation to the Secretary. (AR 51, 401).

        The Bureau of Prisons released Fuller from federal prison on December 16, 2011, to
begin his two-year period of supervised release. (AR180–81). On January 4, 2012, Fuller
submitted his rebuttal to the Commandant’s recommendation letter, arguing “it was neither
permissible nor lawful for Major Fuller to remain on legal hold” and that dropping him from the
rolls and denying him retirement benefits would likewise be unlawful and unjust. (AR268–70,
109); Fuller, 127 Fed. Cl. at 643. On May 9, 2012, Fuller submitted a letter to the Secretary
requesting approval of his voluntary retirement request that was previously approved before he
was placed on legal hold in 2009. (AR271–72).

       On May 11, 2012, the Deputy Commandant for Manpower and Reserve Affairs
recommended the Assistant Secretary of the Navy for Manpower and Reserve Affairs (“Assistant
Secretary” or “ASN (M&RA)”) approve the recommendation to drop Fuller from the rolls.
(AR59–62). The Deputy Commandant concurred with the June 12, 2011 recommendation from
USMC Central Command that “dropping Major Fuller from the rolls is the most effective means
to ensure that Major Fuller is held accountable for his misconduct and to ensure the severance of
Major Fuller’s eligibility for a military retirement.” (AR62).




1
 Under § 12684, “[t]he President or the Secretary concerned may drop from the rolls of the armed force concerned
any Reserve” . . . “who is sentenced to confinement in a Federal or State penitentiary or correctional institution after
having been found guilty of an offense by [a civilian court] and whose sentence has become final.” Dropping an
officer from the rolls is a discretionary action if the conditions of the statute are met, and results in separation
without a certificate of discharge. See Fuller, 127 Fed. Cl. at 643 (citing SECNAVINST 1920.6C at 6). When
dropped from the rolls, an officer does not receive a characterization of service (e.g. honorable, dishonorable), is
severed from all ties to his or her service branch and loses eligibility for retirement benefits. Id; (AR51).

                                                           3
       On June 22, 2012, the Assistant Secretary approved this recommendation and Fuller was
dropped from the rolls. (Id.). Fuller’s request for voluntary retirement was denied on July 9,
2012, (AR58), and soon after, he was notified he would be discharged from the military effective
August 13, 2012. (AR63–64).

         On December 5, 2012, Fuller submitted a petition to the BCNR. (AR82). In his petition,
Fuller requested: (1) the Secretary of the Navy’s action dropping Fuller from the rolls be voided;
(2) retirement at his current grade and time in service; (3) back pay from the date Fuller was
dropped from the rolls to the date of correction of his records; (4) that he be issued a corrected
Form DD214 reflecting separation due to retirement with an honorable characterization of
service and removal of any misconduct separation code; (5) compensation for 36 days of unused
leave forfeited by his drop from the rolls; (6) removal of all documents concerning Fuller’s drop
from the rolls; and (7) that he be provided all benefits accruing to a Marine retiring from active
duty, including compensation for a move to his home of record. (AR137–38); see Fuller, 127
Fed. Cl. at 643. Among other allegations, Fuller asserted the action taken by the Commander of
the USMC Forces Central Command placing Fuller on legal hold was erroneous, an abuse of
discretion, and in violation of regulations because it was not based on an appropriate purpose.
(AR127). Fuller argued that the Marine Corps was not “taking actions with a view towards court-
martial” as required by the regulations to place him on legal hold because it was coordinating
with the U.S. Attorney’s Office in Phoenix, Arizona to bring criminal charges in federal court,
rather than through the military justice system. (Id.). Thus, according to Fuller, the basis for the
legal hold and abeyance of his retirement had ended, and the failure to remove such hold
constituted an abuse of discretion. (AR128).

        The Board requested an advisory opinion on Fuller’s application from the Commandant
of the USMC’s Judge Advocate General (“JAG”). (AR139–43). The JAG opinion stated, “proper
procedures were followed in dropping [Fuller] from the rolls” and “[t]he issues raised by [Fuller]
are without merit and therefore his requests should be denied.” (AR139, 143). The JAG
specifically addressed whether placing Fuller on legal hold was proper and concluded that it was.
(AR141). Fuller responded to this opinion in a letter dated May 17, 2013. (AR476–81). On
November 21, 2013, after considering the entire record—including Fuller’s petition, the JAG
advisory opinion, and Fuller’s rebuttal to that opinion—the Board determined “the evidence
submitted was insufficient to establish the existence of probable material error or injustice” and
“substantially concurred with the comments contained in the advisory opinion.” (AR217–218).

        On April 24, 2015, Fuller filed a Complaint in the Court of Federal Claims seeking
“reinstatement of his retirement, deletion of negative entries from his record, and back pay.”
Fuller, 127 Fed. Cl. at 644. In a decision issued July 16, 2016, the court upheld the decision of
the Board and granted the United States’ motion for judgment on the administrative record. Id. at
647. The court concluded Fuller was not entitled to retirement at the time he was dropped from
the rolls because, as a commissioned Marine Corps officer, his retirement was discretionary at
the approval of the President and that approval was never given. Id. at 645. Further, the court
determined that “the Marine Corps properly maintained [Fuller] on legal hold and held [Fuller’s]
retirement in abeyance through his incarceration and supervised released, which ended
December 17, 2013.” Id. at 646. Finally, the court found the Marine Corps acted reasonably

                                                 4
when it exercised its discretion to drop Fuller from the rolls rather than return him to military
control for separation processing following his incarceration. Id. at 647.

        On August 22, 2016, following the court’s decision, Fuller, acting pro se, submitted an
application for reconsideration to the Board, seeking the same relief as in his previous
application. (AR22–77; 137–38; 35). In support, Fuller claimed he had “new and material
evidence not previously considered by the Board.” (AR24). Specifically, Fuller claimed that: (1)
under Marine Corps Order P1900.16, only the Secretary of the Navy had the authority to hold his
retirement in abeyance because he was approved for his mandatory retirement after completing
20 years of service and was twice non-selected for a promotion; (2) he should have been placed
on the active retired list upon completion of 20 years of active service and two non-selections for
promotion; and (3) he was entitled to mandatory retirement, thus the Secretary of the Navy acted
erroneously by dropping Fuller from the rolls in contravention of SECNAVINST 1920.6C.
(AR33–34).

        The Board requested another JAG advisory opinion regarding Fuller’s request for
reconsideration, which the Marine Corps issued on December 4, 2017. (AR7–16). The JAG
opinion concluded Fuller’s “request for reconsideration should be considered. But because his
allegations of error or injustice lack merit, his request for relief should be denied.” (AR8). In
evaluating whether the Board should hear Fuller’s request for reconsideration, the JAG opinion
noted that Fuller “submitted new evidence not previously considered by the Board[]” and
“although superficially similar to those raised in his initial petition, [Fuller’s] new claims of error
or injustice are materially different.” (AR11). The advisory opinion concluded that “the Board
should consider [Fuller’s] most recent petition.” (Id.).

         With respect to the merits of his request, the JAG opinion stated Fuller had “not satisfied
his burden” to show the error or injustice necessary to overcome the presumption of regularity
afforded to the BCNR. (AR11). In other words, the JAG opinion recommended the Board’s
initial denial should stand. (AR6). The BCNR concurred and adopted this opinion concluding
that “[Fuller’s] command and [the Assistant Secretary] acted within their authority to
recommend, process, and approve the decision to drop [him] from the rolls. (AR5). The Board
also “found that the pending investigation and allegations of misconduct against [Fuller] allowed
for the Department of the Navy to approve the abeyance of [his] approved retirement date.” (Id.).
Fuller submitted responses on February 15 and February 19, 2018. (AR304–11, 292–93).

        In a May 19, 2018 letter, the Board notified Fuller “the evidence submitted was
insufficient to establish the existence of probable material error or injustice[]” and
“[c]onsequently, your application has been denied.” (AR1). As part of its review, the Board
reviewed the record, the JAG advisory opinion, and Fuller’s responses, noting “[Fuller’s] present
claims of error and injustice are superficially, and in part substantively, similar to the ones
previously considered and denied by the Board.” (AR1–4). The Board upheld its previous
conclusions that Fuller’s conduct in Iraq provided an appropriate basis for placing him on legal
hold, authority to institute the hold was not limited exclusively to the Secretary of the Navy, and
the Assistant Secretary acted within its statutory authority to “recommend, process, and approve
the decision to drop [Fuller] from the rolls.” (AR4–5).

                                                  5
        Fuller now appeals this most recent decision from the Board, disputing the Secretary’s
authority to hold his retirement in abeyance.

                                   II.   Standard of Review

           A. Summary Judgment

        “The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC
56(a). A “genuine dispute” exists where a reasonable factfinder “could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Material facts”
are those which might significantly alter the outcome of the case; factual disputes which are not
outcome-determinative will not preclude summary judgment. Id. In determining whether
summary judgment is appropriate, the court should not weigh the credibility of the evidence, but
simply “determine whether there is a genuine issue for trial.” Id. at 249. In so deciding, the Court
must draw all inferences in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 578–88 (1986).

           B. Judgment on the Administrative Record

        Where, as here, the parties have filed cross-motions for judgment on the administrative
record, RCFC 52.1 provides a procedure for parties to seek the equivalent of an expedited trial
on a “paper record, allowing fact-finding by the trial court.” Bannum, Inc. v. United States, 404
F.3d 1346, 1356 (Fed. Cir. 2005). Unlike summary judgment standards, genuine issues of
material fact do not preclude a judgment on the administrative record. See id. at 1355–56.
Questions of fact are resolved by reference to the administrative record. Id. at 1356.

        In reviewing the determinations of a military corrections board, a plaintiff must
demonstrate “by cogent and clearly convincing evidence,” Wronke v. Marsh, 787 F.2d 1569,
1576 (Fed. Cir. 1986), that the military board'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). It is well settled that “responsibility for determining who is fit or unfit to serve in the
armed services is not a judicial province; and that courts cannot substitute their judgment for that
of the military departments when reasonable minds could reach differing conclusions on the
same evidence.” Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983) (citations
omitted). Moreover, “military 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. United States, 988 F.2d 1199, 1204 (Fed. Cir. 1993).

        A court may set aside an agency’s decision if the agency “entirely failed to consider an
important aspect of the problem, offered an explanation for its decision that runs counter to the
evidence before the agency, or the decision is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Ala. Aircraft Indus., Inc. v. United States,
586 F.3d 1372, 1375 (Fed. Cir. 2009) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983)). However, “[w]hen substantial evidence supports the
board’s action, and when that action is reasonable in light of all the evidence presented, the court

                                                  6
will not disturb the result.” Pope v. United States, 16 Cl. Ct. 637, 641 (1989). The court’s review
“does not require a reweighing of the evidence, but a determination whether the conclusion being
reviewed is supported by substantial evidence.” Heisig, 719 F.2d at 1157.

                                             III.     Discussion

        Fuller alleges that the Secretary of the Navy had exclusive authority to place him on legal
hold, pending investigation into his misconduct, and the BCNR’s decision otherwise was
arbitrary, capricious, unsupported by substantial evidence, or contrary to law. In response, the
United States moved for summary judgment under RCFC 56, and, in the alternative, judgment
on the administrative record under RCFC 52.1. (Def. Mot. at 1). In support of its motion for
summary judgment, the United States argues Fuller’s claim is barred by res judicata because it
seeks the same relief and relies on the same transactional facts that were adjudicated in Fuller v.
United States, 127 Fed Cl. 640 (2016). Specifically, the United States contends that, by failing to
raise the issue his prior action, Fuller waived his argument that the Secretary of the Navy had
exclusive authority to place Fuller on legal hold pending the investigation into his misconduct.
(Def. Mot. at 13–16). Fuller counters that in his application for reconsideration, he presented new
evidence to the BCNR and therefore his Complaint in this case is not based on the same set of
transactional facts considered in Fuller v. United States. (Pl. Mot. at 25–29).

        In its motion for judgment on the administrative record, the United States argues that the
BCNR properly denied Fuller’s request for reconsideration because the USMC acted properly in
placing Fuller’s retirement on legal hold and dropping him from the rolls. (Def. Mot. at 16). In
response, Fuller asserts the legal hold was contrary to law because the Secretary of the Navy,
rather than the Commandant, possessed the exclusive authority to hold his retirement in
abeyance, and thus, the Board’s decision to deny his request for reconsideration must be set
aside. (Pl. Mot. at 19).

        As explained below, the Court agrees with the United States that Fuller’s claim is barred
by res judicata. Both Fuller’s 2015 claim and the complaint in this case rely on the same set of
transactional facts— Fuller’s placement on legal hold and subsequent drop from the USMC rolls.
Fuller had a full and fair opportunity to litigate whether he was properly placed on legal hold in
his previous action and failed to do so. Thus, his theory concerning the Secretary’s exclusive
authority was waived and his present claim is barred by the doctrine of res judicata. In light of
this decision, there is no need to analyze the United States’ alternative motion for judgment on
the administrative record.

             A. Res Judicata

      The well-established doctrine of res judicata precludes collateral attack of a final
judgment on the merits. 2 Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981) (“A


2
 Res judicata, or “a matter [already] judged,” encompasses two similar concepts: “issue preclusion” and “claim
preclusion.” Issue preclusion pertains to a matter that was actually litigated, while claim preclusion forecloses


                                                          7
final judgment on the merits of an action precludes the parties or their privies from relitigating
issues that were or could have been raised in that action.”). Res judicata, or claim preclusion, not
only precludes relitigating the claims actually raised in the original actions, but also “any other
admissible matter which might have been offered for that purpose.” Nevada v. United States, 463
U.S. 110, 130 (1983) (internal quotations omitted). “Claim preclusion refers to the effect of a
judgment in foreclosing litigation of a matter that never has been litigated, because of a
determination that it should have been advanced in an earlier suit.” Migra v. Warren City Sch.
Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984). “The final ‘judgment puts an end to the cause of
action, which cannot again be brought into litigation between the parties upon any ground
whatever.’” Nevada, 463 U.S. at 130 (quoting Commissioner v. Sunnen, 333 U.S. 591, 597
(1948)). “To preclude parties from contesting matters that they have had a full and fair
opportunity to litigate protects their adversaries from the expense and vexation attending
multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by
minimizing the possibility of inconsistent decisions.” Montana v. United States, 440 U.S. 147,
153–54 (1979).

        “Claim preclusion applies when ‘(1) the parties are identical or in privity; (2) the first suit
proceeded to a final judgment on the merits; and (3) the second claim is based on the same set of
transactional facts as the first.’” Phillips/May Corp. v. United States, 524 F.3d 1264, 1268 (Fed.
Cir. 2008) (quoting Ammex, Inc. v. United States, 334 F.3d 1052, 1055 (Fed.Cir.2003)). The
parties agree that the first two elements are clearly met. (Def. Mot. at 13; Pl. Mot. at 25–26).
However, the parties disagree over whether Fuller’s Complaint in this suit is based on the same
transactional facts as Fuller v. United States, 127 Fed. Cl. 64 (2016).

        The inquiry into whether two claims involve the same transactional facts must be
conducted “pragmatically, giving weight to such considerations as whether the facts are related
in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their
treatment as a unit conforms to the parties’ expectations or business understanding or usage.”
Phillips/May Corp., 524 F.3d at 1271 (quoting Restatement (Second) Judgments § 24(2) (1982)).
In other words, courts evaluate whether the “same nucleus of operative facts” are present in both
claims. See Ammex, Inc., 334 F.3d at 1056.

        Here, Fuller filed his first complaint in the Court of Federal Claims in 2015, seeking
review of the BCNR’s decision denying relief. Fuller, 127 Fed. Cl. at 644. In that case, Fuller
argued, inter alia, that because the USMC was working with civilian authorities to pursue
criminal charges, no action was being taken with a view toward court-martial, and therefore, no
valid legal basis existed for holding his retirement in abeyance. See id. at 645. In his Complaint,
Fuller acknowledged the legal hold was initiated by the Commander of the USMC Central
Command but failed to challenge the authority of the Commander to initiate this hold; instead,
challenging only the basis for the hold (that it was action taken “with a view to a trial” by court-
martial. See Complaint at ¶ 43, Fuller, 127 Fed. Cl. 640 (2016) (No. 15-418), ECF No. 1, (“2015



matters which should have been litigated but were not. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S.
75, 77 n.1 (1984).

                                                         8
Complaint”). In its decision, the Court examined various military regulations and rules for court
martial to determine whether the legal hold was valid. See id. at 646. The Court concluded that
“the Marine Corps properly maintained [Fuller] on legal hold and held [Fuller’s] retirement
action in abeyance through his incarceration and supervised release[.]” Id.

         In his 2016 petition to the BCNR to reconsider its 2012 decision, Fuller raised for the
first time the issue of who possessed authority to institute his legal hold, asserting “[t]he action
taken by the Commander, U.S. Marine Forces Central Command of placing Major Fuller’s
mandatory retirement in abeyance . . . was in violation of federal law as well as binding Marine
Corps Order and constituted an abuse of discretion.” (AR32, 33). This argument rested on
Fuller’s interpretation of Marine Corps Order P1900.16 that “only the Secretary of the Navy has
the authority to take such an action.” 3 (AR33). The Board denied Fuller’s request, expressly
refuting Fuller’s interpretation and concluding Fuller’s “placement on legal hold and
continuation of that hold beyond the date of [his] approved retirement was not erroneous or
unjust.” (AR3). The Board also noted Fuller’s “present claims of error and injustice [were]
superficially, and in part substantively, similar to the ones previously considered and denied by
the Board.” (AR4).

       Following the Board’s denial, Fuller brought his challenge to this Court. (See Compl. at
¶¶ 76–79). This Complaint relies on the same nucleus of operative facts to state a claim as the
2015 Complaint—Fuller’s placement on legal hold and subsequent drop from the USMC rolls.
Much of the Administrative Record filed in this case is duplicative of that filed in support of his
2015 Complaint. (See, e.g., AR22–77). Fuller’s new legal theory—the exclusive authority of the
Secretary—is the only meaningful difference between the two suits. But the transactional facts
approach forbids precisely this substitution of legal theories to circumvent a previous judgment.
See Anderson v. United States, 46 Fed. Cl. 725, 730 (2000), aff'd, 4 F. App'x 871 (Fed. Cir.
2001); see also Moitie, 452 U.S. at 398; Res. Investments, Inc. v. United States, 785 F.3d 660,
667 (Fed. Cir. 2015); Foster v. Hallco Mfg. Co., 947 F.2d 469, 479 (Fed. Cir. 1991).

        According to his 2015 Complaint, Fuller acknowledged that it was the Commander of the
USMC Central Command, not the Secretary of the Navy, that placed him on legal hold. Clearly,
Fuller’s present argument in this case is based on “factual issues [that] were available at the time
plaintiff filed the prior action[.]” See Anderson, 46 Fed. Cl. at 730; see also Vitaline Corp. v.
Gen. Mills, Inc., 891 F.2d 273, 275 (Fed. Cir. 1989) (barring plaintiff’s second claim where the
facts and evidence used to establish that claim were available for plaintiff’s use in the original
proceeding). Despite having a full and fair opportunity to litigate the authority to place him on
legal hold and thus suspend his retirement, Fuller failed to advance these arguments in the prior
case, thereby waiving them. See Res. Investments, 785 F.3d at 667 (“Different legal theories do
not create separate claims for res judicata purposes”); see also Anderson, 46 Fed. Cl. at 730




3
  MCO P1900.16 Ch. 2, Sec 2005, ¶ 6 states: “Only the Secretary of the Navy has the authority to hold a mandatory
retirement in abeyance. Strict adherence to procedures outlined in Chapters 1 (medical) and 8 (disability) are
crucial.”

                                                        9
(“[A]ltering the theory of recovery does not form a new claim under the transactional
approach.”).

        Furthermore, repetitive requests for the same relief indicate that the subject cases are
based on the same nucleus of operative fact. See Keller v. United States, 120 Fed. Cl. 218, 226
(2015). Fuller’s Complaint in this case seeks the same relief he sought in his 2015 Complaint.
Compare (Compl. at 11–12), with 2015 Complaint at 12–13. In each complaint, Fuller requests
correction of his records, to be placed in honorable retired status, removal of adverse
administrative action documents from his personnel file, and payment of accrued back pay,
allowances, and benefits. (Compl. at 11); 2015 Complaint at 12–13; see also Fuller, 127 Fed. Cl.
at 644 (“[Fuller] filed his complaint with this Court, requesting reinstatement of his retirement,
deletion of negative entries from his record, and back pay.”). Thus, the relief sought by Fuller in
this case is further evidence his claim is based on the same set of transactional facts advanced in
support of his 2015 Complaint. As a result, the Court finds Fuller’s claim in this case is barred by
the doctrine of res judicata. Therefore, the United States’ Motion for Summary Judgment must
be granted.

           B. Judgment on the Administrative Record

       Because the Court finds Fuller’s claim for relief in this action is precluded by his
previous litigation in Fuller v. United States, there is no reason to separately consider the parties’
motions for judgment on the administrative record. As such, the United States’ Motion for
Judgment on the Administrative Record and Fuller’s Cross-Motion for Judgment on the
Administrative Record are denied as moot.

                                       IV.    Conclusion

       For the reasons set forth above, the United States’ Motion for Summary Judgment is
hereby GRANTED. Consequently, the United States’ Motion for Judgment on the
Administrative Record and Fuller’s Cross-Motion for Judgment on the Administrative Record
are DENIED AS MOOT.

       The clerk is directed to enter judgment accordingly.

       IT IS SO ORDERED.

                                                                      s/ David A. Tapp
                                                                      DAVID A. TAPP, Judge




                                                 10
