Strand v. United States , 706 F. App'x 996 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WALTER N. STRAND, III,
Plaintiff-Cross-Appellant
v.
UNITED STATES,
Defendant-Appellant
______________________
2016-2450, 2016-2484
______________________
Appeals from the United States Court of Federal
Claims in No. 1:15-cv-00601-TCW, Judge Thomas C.
Wheeler.
______________________
Decided: September 7, 2017
______________________
LUCAS TAYLOR HANBACK, Rogers Joseph O’Donnell,
Washington, DC, argued for plaintiff-cross-appellant. Also
represented by JEFFERY M. CHIOW; NEIL H. O’DONNELL,
San Francisco, CA.
DANIEL KENNETH GREENE, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellant.
Also represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., DOUGLAS K. MICKLE.
2 STRAND v. UNITED STATES
______________________
Before LOURIE, HUGHES, and STOLL, Circuit Judges.
HUGHES, Circuit Judge.
The Government appeals a decision from the United
States Court of Federal Claims reversing the Secretary of
the Navy’s decision denying Walter Strand’s request to
correct his military records and Mr. Strand appeals a
finding in favor of the Government on its counterclaim
seeking to recover $74,486.33 that it had erroneously paid
to Mr. Strand during his civil confinement. While we
agree with the trial court that the Secretary’s decision is
not supported by substantial evidence, because further
administrative proceedings could remedy the defects in
the Secretary’s decision, we reverse with instructions to
remand to the Secretary for further proceedings. Because
the Government’s counterclaim is not barred by the
statute of limitations, we affirm.
I
Mr. Strand is a native of Chester, Pennsylvania, who
upon graduation from high school enlisted in the Navy.
He served for nearly nineteen and a half years, including
spending over eleven years deployed in combat during the
Persian Gulf War and War on Terror in Iraq and Afghani-
stan. Mr. Strand’s commendations and personal awards
include the Navy and Marine Achievement Medal (four
awards), Good Conduct Medal (four awards), Meritorious
Unit Commendation, National Defense Service Medal
(two awards), Southwest Asia Service Medal (two
awards), Global War on Terrorism Expeditionary Medal,
Global War on Terrorism Service Medal, Military Out-
standing Volunteer Medal, Sea Service Deployment
Ribbon (two awards), Kuwait Liberation Medal, Enlisted
Aviation Warfare Specialist, and Enlisted Surface War-
fare Specialist.
STRAND v. UNITED STATES 3
In the spring of 2007, Mr. Strand finished his final
combat deployment aboard the USS Enterprise aircraft
carrier. His performance evaluations praised his “superb
leadership and management skills,” noted that his “lead-
ership and technical expertise have been pivotal,” and
described him as a “dynamic leader” who should be “se-
lect[ed] for the most challenging assignments and pro-
mote[d] ahead of his peers.” J.A. 183–86.
When he returned home, Mr. Strand discovered that
his wife had moved out, emptied his bank account, taken
his children and possessions, and filed for divorce. He
attempted to reconcile and had a conversation with her
about potentially getting together for dinner. Shortly
after this conversation, he saw her sitting with a male
companion in a car. Mr. Strand flew into a “fit,” J.A. 31,
and with “passion-fueled anger” discharged his gun at
them, J.A. 122. He was subsequently arrested and con-
victed of attempted malicious wounding, attempted
unlawful wounding, and use of a firearm in the commis-
sion of a felony. On February 9, 2009, he was sentenced
to six years in prison.
On June 26, 2009, following his conviction, the Navy
administratively separated Mr. Strand from service.
However, until this date, the Navy had continued paying
Mr. Strand his salary even though he had been in civil
confinement since his arrest. Because he had at least 90
days of leave accrued, Mr. Strand waited three months
after being in custody before seeking confirmation from
his command that he was entitled to continue receiving
pay. He was informed that the command was aware of
his civil confinement and that he was entitled to continue
receiving pay.
On September 24, 2010, Mr. Strand was released ear-
ly from prison because of his model conduct. After his
release, he sought employment, eventually moving back
to Pennsylvania to work at a Hibachi Restaurant washing
4 STRAND v. UNITED STATES
dishes and cleaning. He used his earnings to pay child
support and court costs in full. He also attended school at
Delaware Community College, where he took various
Network Engineering classes.
In 2011, Mr. Strand learned that the Navy was at-
tempting to collect $74,486.33 of basic pay plus fees and
interest that was paid to him while he was civilly con-
fined. He disputed the debt with the Department of
Treasury but was informed that the United States was
not liable for the negligent or erroneous acts of its em-
ployees.
Around the same time, Mr. Strand petitioned the
Board for Correction of Naval Records (BCNR) for a
change to his naval record granting six months retirement
credit so that he would have completed 20 years of service
and be eligible for retirement benefits. On December 15,
2014, the BCNR considered Mr. Strand’s conduct, the fact
that he accepted responsibility for his misconduct, his
rehabilitation, character references, and other evidence.
The BCNR weighed “the seriousness of [Mr. Strand’s]
disciplinary infarctions and [that it did] not condone his
misconduct” against Mr. Strand’s “overall record of more
than 19 years and six months of satisfactory service [and]
his good post service conduct and his early release from
civil confinement due to his good behavior.” J.A. 89.
Ultimately, the BCNR concluded that Mr. Strand “should
be granted relief in the form of credited time served for
retirement, i.e., approximately six months [and] that the
reenlistment code should not be changed because his
nonrecommendation for retention and/or reenlistment
was based solely on his civil conviction.” J.A. 89. There-
fore, the BCNR recommended that Mr. Strand’s naval
record be revised “to show he was honorably retired with
20 years of service vice (sic) issued a general discharge
under honorable conditions by reason of misconduct (civil
conviction) on 26 June 2009.” J.A. 90.
STRAND v. UNITED STATES 5
The Executive Director of the BCNR chose to seek
Secretarial approval of the decision. On February 3,
2015, Mr. Robert Woods, the Navy’s Assistant General
Counsel for Manpower and Reserve Affairs, through
delegated authority from the Secretary, rejected the
BCNR’s recommendations in a two-paragraph decision
and refused to grant Mr. Strand his requested relief.
According to Assistant General Counsel Woods,
Mr. Strand was not entitled to relief in light of the Navy’s
core values, its practice in similar cases, and Mr. Strand’s
“long-standing history of FAP [Family Advocacy Program]
involvement and domestic violence issues.” J.A. 166–67.
On June 15, 2015, Mr. Strand appealed the Secre-
tary’s decision pro se to the Court of Federal Claims, and
subsequently obtained counsel through the trial court’s
pro bono program. On December 28, 2015, the Govern-
ment filed a counterclaim to recover the amounts that it
had paid to Mr. Strand during his civil confinement.
On June 3, 2016, the trial court ruled in favor of
Mr. Strand on his claim that the Secretary’s decision to
deny relief was arbitrary and capricious and ruled in
favor of the Government on its counterclaim to recover its
payments to Mr. Strand. Both parties appeal. We have
jurisdiction under 28 U.S.C. § 1295(a)(3).
II
We review the trial court’s decision granting or deny-
ing a motion for judgment upon the administrative record
without deference, applying the same standard of review
that the trial court applied. Roth v. United States, 378
F.3d 1371, 1381 (Fed. Cir. 2004).
The Government argues that the trial court erred by
disregarding the substantial evidence supporting the
Secretary’s decision. We must reverse the Secretary’s
decision if it is arbitrary or capricious, unsupported by
substantial evidence, or otherwise not in accordance with
6 STRAND v. UNITED STATES
law. Walls v. United States, 582 F.3d 1358, 1367 (Fed.
Cir. 2009). Substantial evidence is “such relevant evi-
dence as a reasonable mind might accept as adequate to
support a conclusion.” Snyder v. Dep’t of Navy, 854 F.3d
1366, 1372 (Fed. Cir. 2017).
We conclude that the Secretary’s decision is not sup-
ported by substantial evidence. The Secretary relied on
the sum of two facts in the record and two policy reasons
to reject the BCNR’s decision: (1) Mr. Strand’s long-
standing history of domestic violence issues and FAP
involvement; (2) the seriousness of Mr. Strand’s convic-
tions arising out of his February 2008 actions; and that
granting relief would be inconsistent with (3) the Navy’s
core values and (4) the Navy’s practice in similar cases.
J.A. 82.
The Secretary’s finding that Mr. Strand had a “long-
standing history of FAP involvement and domestic vio-
lence issues” is not supported by substantial evidence.
The Secretary’s sole basis for this statement is an April
2009 memorandum prepared by Captain H. D. Starling II,
Mr. Strand’s former commanding officer. Captain Star-
ling’s statement, however, is conclusory and unsupported
by the administrative record. Prior to 2007 and the
events that gave rise to Mr. Strand’s separation from
service, the administrative record reflects no history of
FAP participation or domestic violence issues. For exam-
ple, the record does not contain a non-judicial punish-
ment, counseling entry, court-martial entry, or military
protective order. While the Government argues that
Mr. Strand’s conduct giving rise to his civil confinement
supports the Secretary’s conclusion, Mr. Strand’s conduct,
though serious, does not reflect a “long-standing history”
of issues. Therefore, the Secretary’s finding that
Mr. Strand had a long-standing history of domestic vio-
lence issues and FAP involvement is not supported by
substantial evidence.
STRAND v. UNITED STATES 7
Despite the foregoing, the Government argues that we
should still uphold the Secretary’s decision because it sets
forth other policy rationales and evidence. But because
the Secretary relied on a combination of intertwined
reasons, and Mr. Strand has shown that at least one of
those reasons is not supported by substantial evidence,
the record is not clear as to whether the Secretary would
still reach the same conclusion. Thus, the Secretary’s
decision must be reversed.
The Government submits that even if we find the Sec-
retary’s decision unsupported by substantial evidence,
this case should be remanded to the Secretary for further
investigation. It is an established principle of administra-
tive law that courts should not “intrude upon the domain
which Congress has exclusively entrusted to an adminis-
trative agency,” INS v. Ventura, 537 U.S. 12, 16 (2002)
(per curiam) (quoting SEC v. Chenery Corp., 318 U.S. 80,
88 (1943)), and that “a judicial judgment cannot be made
to do service for an administrative judgment,” Chenery,
318 U.S. at 88. Thus, “the proper course, except in rare
circumstances, is to remand to the agency for additional
investigation or explanation.” Gonzalez v. Thomas, 547
U.S. 183, 186 (2006) (per curiam) (quoting Ventura, 537
U.S. at 16). Here, the Secretary has not yet considered
whether the BCNR’s decision to grant Mr. Strand partial
relief should be upheld in the absence of any evidence of a
“long-standing history” of FAP involvement and domestic
violence issues. We find no special circumstances that
would support determining this question in the first
instance. Therefore, this case must be remanded back to
the Secretary for further review of the BCNR’s decision.
III
Turning to the cross-appeal, Mr. Strand argues that
the Government’s counterclaim seeking the salary paid to
8 STRAND v. UNITED STATES
him during his civil confinement is untimely. 1 We review
de novo whether the Court of Federal Claims possesses
jurisdiction over a claim. Estes Exp. Lines v. United
States, 739 F.3d 689, 692 (Fed. Cir. 2014).
In general, the government has six years to file suit
seeking money damages based upon a contract. 28 U.S.C.
§ 2415(a). However, § 2415 expressly provides that the
six-year limitation period does not prevent the govern-
ment from asserting its claim as a counterclaim that
arises out of the transaction or occurrence that is the
subject matter of the opposing party’s claim. 28 U.S.C.
§ 2415(f). Here, Mr. Strand filed a claim seeking an
entitlement to the wages paid to him between his civil
confinement and separation from the Navy. J.A. 36. The
Government’s counterclaim seeking recovery of those
same wages “arises out of the transaction or occurrence
that is the subject matter of” Mr. Strand’s claim. Vivid
Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 801
(Fed. Cir. 1999). Therefore, the Government’s counter-
claim is timely under § 2415(f).
Next, Mr. Strand contends that the Government’s
counterclaim is untimely under 28 U.S.C. § 2501, which
states that “[e]very claim of which the United States
Court of Federal Claims has jurisdiction shall be barred
unless the petition thereon is filed within six years after
such claim first accrues.” However, since the Court of
Federal Claims may only hear claims against the gov-
ernment, § 2501 governs claims against the government.
The counterclaim is a claim by the government and is
controlled by the limitations periods set forth in § 2415
(titled, “Time for commencing actions brought by the
1 The Government did not challenge the trial
court’s decision to preclude the recovery of interest, fees,
or penalties as the payments in question were due solely
to the Government’s error.
STRAND v. UNITED STATES 9
United States”). As a result, the Government’s counter-
claim is not barred by § 2501.
Finally, Mr. Strand argues that the Government did
not file its pleading containing a counterclaim within a
timely manner under the Rules of the United States
Court of Federal Claims. A trial court’s application of its
rules is reviewed for abuse of discretion. Keranos, LLC v.
Silicon Storage Tech., Inc., 797 F.3d 1025, 1035 (Fed. Cir.
2015) (citations omitted). The Government filed its
counterclaim on December 28, 2015, more than a month
after the trial court’s November 26, 2015 scheduling
deadline. Mr. Strand filed a motion to strike, arguing
that the counterclaim was untimely. The trial court, after
deciding the parties’ motions for judgment on the admin-
istrative record and ruling on the counterclaim, found the
motion to strike moot. Despite the untimeliness of the
pleading, Mr. Strand had the full opportunity to oppose
the counterclaim and does not argue that he was preju-
diced in his ability to oppose it. Thus, the trial court did
not abuse its discretion in allowing the Government’s
counterclaim.
IV
We have considered the parties’ remaining arguments
but find them unpersuasive. Accordingly, we reverse the
trial court’s ruling on Mr. Strand’s claim, and instruct the
trial court to remand this case to the Secretary of the
Navy for further proceedings consistent with this opinion.
On the Government’s counterclaim, we affirm.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED
No costs.