Lancaster v. United States ( 2022 )

In the United States Court of Federal Claims
No. 22-267
Filed: August 4, 2022
NOT FOR PUBLICATION
JEREMIAH D. LANCASTER,
Plaintiff,
v.
UNITED STATES,
Defendant.
Patrick J. Hughes, Patriots Law Group of Lyons & Hughes, P.C., Suitland, MD, for the plaintiff.
Tanya B. Koenig, Commercial Litigation Branch, Civil Division, U.S. Department of Justice,
Washington, DC, for the defendant, with Frederick Rudesheim, U.S. Army Legal Service
Agency, of counsel.
MEMORANDUM OPINION AND ORDER
HERTLING, Judge
In this military-pay case, the defendant moves for a voluntary remand to the Army Board
of Correction of Military Records (“ABCMR”) to consider the plaintiff’s claims in the first
instance. Although the plaintiff opposes the motion, the defendant’s concerns justifying a
remand are substantial and legitimate and outweigh any potential prejudice to the plaintiff.
Accordingly, the defendant’s motion to remand is granted.
I. BACKGROUND
The plaintiff, Jeremiah Lancaster, filed a complaint on March 9, 2022, against the United
States, acting through the Department of the Army (“Army”). (ECF 1.) At this stage of the case,
the Court treats as true all well-pleaded allegations and makes no findings of fact. For current
purposes, only a summary of the plaintiff’s claims is necessary.
The plaintiff alleges that the Army arbitrarily and capriciously denied the plaintiff
medical, housing, and travel entitlements that were due to him under military regulations and
37 U.S.C. §§ 204, 403, and 474. (ECF 1 at 1.) The plaintiff served as an officer in the Army
Reserve for seven years. The plaintiff alleges that the Army failed to pay entitlements due to
him in four instances.
In the first instance, occurring in October and November of 2016, the plaintiff alleges that
his primary residence was Chiang Rai, Thailand. (Id. at 5-9.) When the Army ordered the
plaintiff to active service at Fort Bliss, Texas, the Army initially paid for his flight from Thailand
and a full per diem. The Army later determined that the plaintiff’s primary residence was not in
Thailand but in North Carolina and recouped $2,877.65 from the plaintiff.
In the second instance, occurring from March 2017 until May 2017, the plaintiff alleges
that he primarily resided in Southern Shores, North Carolina. (Id. at 9-11.) He was ordered to
Yongsan Garrison in Seoul, South Korea, at a time when he had recently completed inactive duty
training in Thailand for a sister unit. The plaintiff therefore traveled to South Korea from
Thailand rather than from North Carolina, but he requested basic allowance for housing (“BAH”)
according to the rates for North Carolina. The Military Pay Supervisor at the U.S. Army Reserve
Command Pay Center reported the plaintiff to the Army Criminal Investigation Division for
BAH Fraud, Larceny of Government Funds, and False Official Statement, but the Army
concluded that probable cause did not exist to believe the plaintiff committed those offenses.
The Army nonetheless determined that at this time the plaintiff resided primarily in Thailand and
denied the plaintiff BAH according to North Carolina rates.
In the third instance, occurring from October 2017 until January 2018, the plaintiff
alleges that he primarily resided in Southern Shores, North Carolina, and was activated for duty
at Fort Gordon, Georgia. (Id. at 11-13.) The Army denied the plaintiff BAH entitlements at the
rate for North Carolina due to his command’s claim that he was residing in Thailand.
Additionally, the plaintiff alleges that although he was denied access to Fort Gordon’s dining
facility and initially received a per diem allowance reflecting that fact, the Army later issued a
Notice of Collection Action to recoup $3,433.20 of the per diem given to the plaintiff. This
recoupment action has been stayed due to the plaintiff’s filing of a complaint in this court.
In the fourth instance, occurring from January 2018 until August 2018, the plaintiff
alleges that he was improperly denied BAH and travel pay from Fort Gordon, Georgia, to a
hospital in Augusta, Georgia, for a shoulder injury he sustained in the line of duty. (Id. at 13-
15.)
The plaintiff, suing under the Tucker Act, requests an award of proper medical pay and
entitlements; BAH entitlements; backpay for transportation, travel, and per diem entitlements;
interest, costs, and attorney’s fees under the Equal Access to Justice Act (“EAJA”); and the
correction of personnel records. (Id. at 19-20.) The plaintiff requests that the exact amount due
to him be calculated at trial.
On July 7, 2022, the defendant filed a motion for a voluntary remand or, in the
alternative, a motion for an enlargement of time to respond to the plaintiff’s complaint. (ECF 7.)
On July 21, 2022, the plaintiff filed a response to the defendant’s motion opposing a remand but
agreeing to an enlargement of time for the defendant to respond to the plaintiff’s complaint.
(ECF 8.) The defendant filed a reply brief on July 28, 2022. (ECF 9.) Oral argument is
unnecessary to resolve the motion.
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II. DISCUSSION
Rule 52.2(a) of the Rules of the Court of Federal Claims (“RCFC”) provides: “In 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.” When an agency requests
a remand (without confessing error) to reconsider its position, “the reviewing court has discretion
over whether to remand.” SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001).
“Although there is generally no requirement that a plaintiff exhaust remedies with the
applicable Corrections Board before filing suit in the Claims Court, . . . these cases normally still
proceed through the Corrections Boards because ‘[t]ypically, if suit is filed just in the [Claims
Court], that court will require resort to a Corrections Board while the matter remains pending in
that court.’” Antonellis v. United States, 723 F.3d 1328, 1333 (Fed. Cir. 2013) (internal citation
omitted) (quoting Richey v. United States, 322 F.3d 1317, 1323 (Fed. Cir. 2003)).
The Federal Circuit has held that “if the agency’s concern is substantial and legitimate, a
remand is usually appropriate.” SKF, 254 F.3d at 1029. A motion for a voluntary remand
should nonetheless be denied if it is frivolous or in bad faith, SKF, 254 F.3d at 1029, would serve
no useful purpose, Martinez v. United States, 333 F.3d 1295, 1310 (Fed. Cir. 2003), cert. denied,
540 U.S. 1177 (2004), or would “unduly prejudice the non-moving party,” Util. Solid Waste
Activities Grp. v. Env’t Prot. Agency, 901 F.3d 414, 431 (D.C. Cir. 2018) (citation omitted). A
motion for a voluntary remand by the defendant opposed by a plaintiff “should be treated as with
any other motion affecting the substantial rights of the plaintiff, by subjecting the government’s
position to careful analysis to ensure that the motion is properly supported and justified.”
Rahman v. United States, 149 Fed. Cl. 685, 690 (2020).
In resolving opposed motions for a voluntary remand, some judges of this court have
adopted the three-part test from Ad hoc Shrimp Trade Action Committee v. United States, 882 F.
Supp. 2d 1377 (Ct. Int’l Trade 2013), to guide the exercise of discretion in determining whether
an agency’s concern is “substantial and legitimate.” See Trace Sys., Inc. v. United States, No.
22-404C, 2022 WL 2963486, at *3 (Fed. Cl. July 26, 2022); Lyon v. United States, No. 20-755C,
2022 WL 2294191, at *9 (Fed. Cl. June 22, 2022); Keltner v. United States, 148 Fed. Cl. 552,
564 (Fed. Cl. 2020). Under this test outlined in Ad hoc Shrimp Trade, an agency’s concerns are
“substantial and legitimate” if (1) the agency provides a compelling justification for its remand
request; (2) the need for finality does not outweigh the agency’s justification for a voluntary
remand, i.e., the plaintiff would not be unduly prejudiced; and (3) the scope of the agency’s
request is appropriate. 882 F. Supp. 2d at 71.
A. Compelling Justification
The defendant notes that in his complaint, the plaintiff did not attach supporting
documentation, identify who denied his claims, or provide dates on which his claims were
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denied. 1 (ECF 7 at 1-2.) Despite having contacted the Defense Finance Accounting Service,
U.S. Army Financial Management, and U.S. Army Reserve pay office, the defendant asserts that
it has not been able to collect documents needed to construct the administrative record relative to
the plaintiff’s four discrete claims. The defendant argues that a remand is appropriate to
consolidate both the development of an administrative record and the substantive issues.
The plaintiff attaches to his response numerous decisional documents that he claims to
have provided to the defendant. The plaintiff argues that “[t]he administrative record is easily
ascertainable with a minimal and reasonable effort, as all of the relevant documents are within
the possession and direct control of the Defendant.” (ECF 8 at 4.)
In its reply, the defendant asserts that the documents provided by the plaintiff do not
provide sufficient information to confirm or refute the plaintiff’s claims. (ECF 9 at 3.) The
defendant argues that the plaintiff’s “references to Inspector General findings, letters of
reprimand, investigations by the Army’s Criminal Investigation Division, and line of duty
investigation findings are not directly related to military pay and entitlement decisions.” (Id. at
4.) The Army offices with final agency authority over military-pay decisions have not reviewed
the plaintiff’s claims.
Under precedent from the Federal Circuit, “[t]he focus of judicial review of agency action
remains the administrative record . . . .” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374,
1381 (Fed. Cir. 2009). “If the record is inadequate, ‘[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,’ and instead ‘the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or explanation.’” Walls v.
United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009) (quoting Fla. Power & Light Co. v. Lorion,
470 U.S. 729, 744 (1985)).
Judicial review of the plaintiff’s claims challenging the Army’s actions must be based on
the administrative record, but there is no administrative record in this case to review. See Axiom,
564 F.3d at 1381. Unless a rare circumstance or exception applies, a reviewing court in a claim
for military pay and benefits generally does not conduct a de novo investigation into the
plaintiff’s entitlements. See Walls, 582 F.3d at 1367.
Remand to the agency will aid the defendant in compiling and reviewing the
administrative record more effectively. Although the plaintiff is undoubtedly correct that most
of the relevant documents are already within the defendant’s possession and control, those
documents originate from disparate offices and organizations across the Army. The defendant
asserts that, despite counsel’s best efforts, the defendant has been unable to collect a complete
administrative record. The ABCMR employs an established process for compiling an
administrative record: the ABCMR will reach out to relevant offices to obtain advisory opinions
1
The defendant has not responded to the complaint and thus has not challenged the adequacy
of the complaint under RCFC 12(b).
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and underlying documents and then rely on those opinions and documents to review the
plaintiff’s claims. (See ECF 9 at 3.) Requiring the filing of the administrative record without a
remand to the ABCMR could lead to “a record that may be incorrect or incomplete.” (Id. at 4.)
Additionally, a remand will allow the ABCMR an opportunity to consolidate and
consider the substantive legal issues in this case for the first time. The Army may “correct its
own potential errors without expending the resources of the court and the parties in reviewing a
record that may be incorrect or incomplete.” (ECF 9 at 4.) Given the substantial deference
given to the Army regarding personnel decisions, it is more appropriate to allow the Army an
opportunity to correct its mistakes with minimal judicial intervention. See Rahman, 149 Fed. Cl.
at 691. Accordingly, the government has provided a compelling justification for a remand to the
ABCMR.
The defendant’s justification for a voluntary remand distinguishes this case from others in
which courts found a lack of compelling justification. In Keltner, for example, Judge Solomson
found the defendant’s justification unreasonable when the defendant sought a remand merely to
bolster its analysis for its initial decision, and the defendant expressed no intention to reconsider
its position. 148 Fed. Cl. at 565. In that case, the defendant’s justification for a remand did not
implicate the adequacy of the administrative record. Id. In another case, Lyon, Judge Somers
denied the defendant’s motion for a voluntary remand when the defendant’s proffered
justification was “incorrect as a factual matter.” 2022 WL 2294191, at *10.
In this case, by contrast, the administrative record is not only inadequate but also
nonexistent, and the defendant has expressed an intention to consider the plaintiff’s claims in
good faith. There is also no reason to doubt the accuracy of the defendant’s assertions regarding
its difficulty compiling the administrative record. Furthermore, review by the ABCMR of the
plaintiff’s claims may obviate in whole or in part the need for judicial correction of the alleged
errors. In the current posture of this case, the defendant has provided a compelling justification
for a voluntary remand.
B. Need for Finality
The defendant notes that the plaintiff waited approximately 21 months to bring his first
claim, more than four years to bring his second claim, more than three years to bring his third
claim, and approximately 21 months to bring his fourth claim. (ECF 7 at 6.) The defendant
argues that a remand may provide the plaintiff more immediate relief and render his claims
moot; at the very least, a remand will provide the plaintiff an opportunity to submit additional
argument and evidence supporting his claims.
The plaintiff notes that the delays listed by the defendant are not of the plaintiff’s own
making because the plaintiff “has initiated multiple complaints through his chain of command
and the Inspector General.” (ECF 8 at 2.)
Because the plaintiff bypassed the ABCMR and came directly to court, a remand would
likely be necessary to determine the precise amount of any monetary relief to which the plaintiff
might be entitled. See Rahman, 149 Fed. Cl. at 690. By remanding the case at this early stage,
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the plaintiff may receive relief from the ABCMR, thereby expediting a resolution of his claims.
In two cases, the undersigned has remanded over the plaintiff’s objections a case to the
applicable military correction board, and the board has provided complete relief to the plaintiff in
a manner that was more expedient than the Court would have been able to provide had the Court
ruled on the issues in the first instance. Such expedient relief could be the result in this case.
Alternatively, in the face of the defendant’s assertions regarding the difficulties it is
having in compiling the administrative record, the existence of an administrative record
developed for the consideration by the ABCMR of the plaintiff’s claims is likely to expedite
ultimate judicial consideration and resolution of the plaintiff’s claims if they are not concluded to
the plaintiff’s satisfaction by the ABCMR. Thus, a remand is likely to produce a more
expeditious conclusion of the plaintiff’s claims, either by the ABCMR or the Court. This factor
too supports a remand.
C. Prejudice to the Plaintiff
The plaintiff claims that a remand would prejudice the plaintiff for three reasons: (1) a
remand would subject the plaintiff’s claims to a heightened standard of review and burden of
proof; (2) a remand would “shift the burden of compiling the administrative record” to the
plaintiff; and (3) the plaintiff would be unable to recover attorney’s fees under the EAJA. (ECF
8 at 4-5.)
First, a remand would not subject the plaintiff to a heightened standard of review.
Regardless of whether the ABCMR has evaluated the plaintiff’s claims, the Army’s decisions
would be evaluated under the standard articulated in the Administrative Procedure Act. See Metz
v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006). “[J]udicial review of military service
determinations with monetary consequences” is limited to evaluating whether the “‘action was
arbitrary, capricious, or in bad faith, or unsupported by substantial evidence, or contrary to law,
regulation, or mandatory published procedure of a substantive nature by which [the complainant]
has been seriously prejudiced.’” Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983)
(quoting Clayton v. United States, 225 Ct. Cl. 593, 595 (1980)).
A remand also will not subject the plaintiff to a higher burden of proof. Even if the
plaintiff’s claims were considered de novo, the plaintiff would bear the burden of proving
entitlement to his claims. See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 56-57 (2005)
(explaining that the default rule is that “plaintiffs bear the risk of failing to prove their claims”).
The plaintiff’s burden of proof at a hypothetical trial therefore does not outweigh his burden of
proof following a remand.
Second, a remand will not shift the burden to the plaintiff to compile the administrative
record. That record is still the Army’s to compile. The documents reside with the Army, albeit
in various offices and locations. It will be the responsibility of the Army, not the plaintiff, to
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compile those documents for consideration by the ABCMR in the first instance. 2 And it will be
the defendant, and not the plaintiff, that must certify and file the administrative record with the
Court following the remand. See RCFC 52.1(a).
Finally, the plaintiff is not unduly prejudiced by the unavailability of attorney’s fees
should the ABCMR grant him full relief on remand. At this stage of the litigation, before any
dispositive motion or administrative record has been filed, the Court is unable to determine
whether the plaintiff would satisfy the numerous statutory criteria for eligibility to recover
attorney’s fees under the EAJA. See 28 U.S.C. § 2412. The plaintiff’s right to attorney’s fees is
too speculative to be prejudicial.
The plaintiff has not demonstrated that this case presents a “rare circumstance” that
would empower the Court to conduct a de novo inquiry into his claims. See Walls, 582 F.3d at
1367. For example, a court may hold an evidentiary hearing to determine jurisdictional facts or
consider evidence outside the record concerning a potential ethical violation. See Metz, 466 F.3d
at 998; see also Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324,
1338-39 (Fed. Cir. 2001) (permitting the collection of extra-record evidence to consider a
potential ethical violation in a government-contracts case). In general, however, the
administrative record governs judicial review in military-pay cases. See Walls, 582 F.3d at 1367.
As previously noted, the ABCMR has not had the opportunity to consider the plaintiff’s
case at all—a fact distinguishing this case from other situations when a remand may have unduly
prejudiced the plaintiff. See Lyon, 2022 WL 2294191, at *11 (noting that the defendant was
requesting a remand to the agency for the fourth time). Additionally, the procedural posture of
this case distinguishes it from Keltner, in which the agency sought a remand after a motion for
judgment on the administrative record had been fully briefed and the court had held oral
argument on the motion. 148 Fed. Cl. at 566.
The prejudice potentially facing the plaintiff is not unique to this case; it is the same type
of prejudice that most plaintiffs would confront upon remand. Any prejudice to the plaintiff that
a voluntary remand would cause does not outweigh the defendant’s compelling justification for
the remand—namely, permitting the ABCMR to evaluate the plaintiff’s claims in the first
instance.
D. Scope of the Remand
The remand requested by the defendant would allow the plaintiff an opportunity to
present new evidence and arguments and permit the ABCMR to evaluate the plaintiff’s claims in
the first instance. (See ECF 7 at 7.) The Court’s order also requires the ABCMR to complete its
review of the plaintiff’s claims within four months.
2
That said, it would benefit the plaintiff were he to assist the Army in compiling the
administrative record by reducing the delay that would otherwise attend the location and
compilation of the documents related to the plaintiff’s various claims.
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In his response to the government’s motion, the plaintiff opposes the remand but does not
take issue specifically with the scope of a potential remand. Accordingly, the Court finds the
scope of the defendant’s request appropriate.
III. ORDER
The defendant has advanced substantial and legitimate justifications for a voluntary
remand. Any prejudice to the plaintiff resulting from a remand is outweighed by the defendant’s
justifications. Accordingly, the defendant’s motion to remand the case to the ABCMR pursuant
to RCFC 52.2 is GRANTED, and the case is REMANDED to the ABCMR until December 2,
2022.
On remand, the ABCMR shall consider and determine the claims presented by the
plaintiff in his complaint. The ABCMR shall provide the plaintiff the opportunity to submit
additional evidence and supplemental legal argument in support of his claims.
The ABCMR shall issue its decision by December 2, 2022. The parties shall file a joint
status report by December 16, 2022, advising the Court as to whether further proceedings are
necessary and, if so, proposing a schedule for such proceedings.
The case is STAYED pending further order of the Court. The defendant’s obligation to
respond to the plaintiff’s complaint is also STAYED.
The provisions of Rule 52.2(b)(1)(D) are WAIVED.
The Clerk is DIRECTED to serve a copy of this Order on the Secretary of the Army at:
Office of the Secretary of the Army
101 Army Pentagon
Washington, DC 20310-0101
The Clerk is further DIRECTED to serve a copy of this Order on the Army Review
Boards Agency at:
Office of Army Review Boards Agency
251 18th Street South, Suite 385
Arlington, VA 22202-3531
It is so ORDERED.
s/ Richard A. Hertling
Richard A. Hertling
Judge
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