Richardson v. United States ( 2022 )

In the United States Court of Federal Claims
JESSE RICHARDSON,
Plaintiff,
v. No. 20-86C
(Filed: May 31, 2022)
THE UNITED STATES OF AMERICA,
Defendant.
Jonathan Crisp, Harrisburg, PA, for Plaintiff.
Richard Schroeder, Civil Division, United States Department of Justice, Washington, DC, for
Defendant.
OPINION AND ORDER
LERNER, Judge.
Jesse Richardson (“Mr. Richardson” or “Plaintiff”) brings the present Complaint under
the Military Pay Act, 37 U.S.C. § 204, seeking reinstatement to active duty and a promotion with
back pay and benefits, as well as the correction or modification of records in his military
personnel file. After the United States of America (“Government” or “Defendant”) filed the
Administrative Record, Plaintiff filed a Motion for Judgment on the Administrative Record,
pursuant to Rule 52.1 of the Rules of the U.S. Court of Federal Claims (“RCFC”). Defendant
filed a Cross-Motion to Dismiss or, in the alternative, for Judgment on the Administrative
Record. For the reasons set forth below, Defendant’s Motion to Dismiss is GRANTED, the
parties’ Cross-Motions for Judgment on the Administrative Record are DENIED as moot, and
the Complaint must be DISMISSED.
I. Background
A. Factual Background
The following facts are based on the allegations in Plaintiff’s Complaint, which the Court
accepts as true solely for the purpose of ruling on the Government’s pending Motion to Dismiss.
Where documents are contained both in Plaintiff’s exhibits and the Administrative Record, the
Court cites to the latter for uniformity and ease of use.
1. Investigation, Titling, and Adverse Entries into Personnel File
Mr. Richardson began his active service in the U.S. Army (“Army”) on
September 16, 1999. Admin. R. (“AR”) 1050–60, ECF No. 18-3. He rose to the rank of
sergeant first class (“SFC”) before being appointed to the rank of warrant officer (“WO”) on
December 4, 2014. AR 1180–84, ECF No. 18-4. In January 2015, the U.S. Army Criminal
Investigation Division (“CID”) opened an investigation into an allegation that Mr. Richardson
sexually assaulted a civilian Army employee in January 2014. Compl. ¶ 2, ECF No. 1;
AR 96–100, ECF No. 18-1. During the investigation, CID discovered evidence of a second
alleged incident of sexual misconduct from August 2014. Compl. ¶ 37; AR 91–95. Either
during the investigation or at its conclusion in May 2015, Mr. Richardson’s name was entered
into the title block of an investigation report and subsequently into the Defense Criminal
Investigation Index (“DCII”), an action called “titling.” Compl. ¶¶ 2, 41.
On July 30, 2015, based on the CID investigation, the U.S. Army Intelligence and
Security Command (“INSCOM”) commander issued a general officer memorandum of
reprimand (“GOMOR”), an administrative measure that admonished Mr. Richardson for the
alleged January 2014 offense. Compl. ¶ 43; AR 73. Mr. Richardson submitted a rebuttal,
Compl. ¶ 44; AR 336–48, and the commander entered the GOMOR into Mr. Richardson’s
personnel file, Compl. ¶ 45; AR 74. Subsequently, on May 5, 2016, Mr. Richardson received a
negative officer evaluation report (“OER”) for the time period that included the alleged offenses.
Compl. ¶ 50; AR 350–54. The OER was also put into his personnel file. Compl. ¶ 52.
2. Delayed Promotion and Separation Proceedings
In 2016, Mr. Richardson was selected for promotion from the rank of WO to chief
warrant officer two (“CWO2”). Compl. ¶¶ 7, 58; AR 121. However, on May 16, 2016, the
INSCOM commander notified Mr. Richardson that, due to the alleged misconduct uncovered
during the CID investigation, he was recommending that Mr. Richardson be separated with an
other than honorable characterization of service. Compl. ¶ 53. Mr. Richardson was instructed
that he could either resign in lieu of separation or show cause for retention in the Army at a
board of inquiry (“BOI”). Id.Mr. Richardson chose to proceed with a BOI. Id. A BOI is an adversarial administrative
separation board for a military officer, which considers whether an officer should be separated
for cause and, if so, the appropriate characterization of the officer’s service. See Army Reg. 600-
8-24 ¶¶ 4-6–4-7, 4-15(b)(2); Compl. ¶ 54. The BOI’s recommendation is partially binding: the
Army may reach a disposition more favorable to the officer than a BOI recommended, but it may
not reach a less favorable outcome. Army Reg. 600-8-24 ¶ 4-17(d); Compl. ¶ 55. If a BOI
determines that the evidence of misconduct or substandard performance of duty does not support
the officer’s separation, then the Army may not administratively separate the officer on the basis
of that conduct. Army Reg. 600-8-24 ¶ 4-6(a), Table 4-1; Compl. ¶ 55.
On October 5, 2016, the BOI found no basis for separation and recommended Mr.
Richardson’s retention in the Army. Compl. ¶ 56; AR 379. It did, however, comment that he
showed a lack of judgment by not immediately leaving a men’s bathroom when a woman, whose
allegation triggered the investigation, entered. AR 379. On December 13, 2016, the INSCOM
commander approved the BOI’s findings. Compl. ¶ 57; AR 358–59.
2
However, while the BOI was pending, a separate administrative process caused Mr.
Richardson’s promotion to be delayed and referred to a promotion review board (“PRB”).
Compl. ¶ 59; AR 656, ECF No. 18-2. A PRB is convened when a routine screening of
promotion selectees uncovers derogatory material, such as a GOMOR or adverse OER, or upon
referral by an appropriate officer. Army Reg. 600-8-29 ¶ 8-2(b). The PRB’s recommendation of
whether the officer should be removed from the promotion list is reviewed by the Secretary of
the Army (“SA”) for an ultimate determination. Id. ¶ 8-8(c). On September 6, 2016, Mr.
Richardson submitted a rebuttal to his potential removal from the promotion list for the PRB’s
review and requested that the PRB be delayed so that the PRB could consider the BOI’s findings.
Compl. ¶ 62; see AR 80, 82.
On November 29, 2016, Army Human Resources Command (“HRC”) informed Mr.
Richardson that the PRB’s recommendation was forwarded to the Acting SA. Compl. ¶ 63;
AR 382–83. Mr. Richardson responded to the HRC representative that he had “hoped the PRB
wouldn’t actually convene for another couple of months.” AR 383. In fact, the PRB had
convened on November 4, 2016, and submitted a recommendation on November 7, 2016, that
Mr. Richardson be removed from the promotion list. AR 80–81, 126–27. On
December 22, 2016, Mr. Richardson provided HRC a copy of the BOI report and a transcript of
the proceedings so that the SA could review them along with the PRB’s findings before deciding
whether to remove him from the promotion list. Compl. ¶ 63; AR 381.
3. Removal from Promotion List and Mandatory Separation
On February 28, 2017, the Acting SA removed Mr. Richardson from the promotion list to
CWO2. Compl. ¶ 64; AR 1201. Per Army regulations, a WO who is not selected for promotion
to CWO2 must be separated from the Army unless they are within two years of retirement
(traditional retirement eligibility begins at 20 years of service). Army Reg. 600-8-24 ¶ 5-11(a).
Per the Acting SA’s March 20, 2017 notice of separation, Mr. Richardson was required to
separate no later than September 5, 2017. AR 891. Were this separation date 11 days later, Mr.
Richardson would have been within two years of retirement, and thus immune from this
mandatory separation. Compl. ¶¶ 8, 65; AR 141. The acknowledgement form included with the
notification presented Mr. Richardson with four options: He could (1) request appointment in the
Army Reserve following involuntary separation; (2) end his affiliation with the Army entirely
after involuntary separation; (3) resign and request enlistment in the active-duty Army; or (4)
request early retirement. AR 893.
On April 4, 2017, Mr. Richardson acknowledged receipt of the separation notice and
chose to request early retirement. Id. He initialed the paragraph that stated: “I [] desire early
retirement under the Temporary Early Retirement Authority (TERA) program . . . I understand
that TERA is not an entitlement and if I am flagged for adverse action, or undergoing an
elimination proceeding, TERA will not be approved until the conclusion of that action.” Id.Next to his signature, he included a hand-written request that a special review board (“SRB”) be
convened to address the difference between his favorable BOI results and the SA’s determination
to deny him promotion, but stated that if this request was denied, he would apply for early
retirement. Id. Alternatively, if the early retirement request was denied, he would apply for a
Reserve appointment. Id.3
The next day—apparently without waiting for a response to his request for an SRB—Mr.
Richardson applied for early retirement. AR 887–90. 1 On his application form, he “request[ed]
that [he] be released from active duty and assignment on 31 August 2017 and placed on the
retirement list on 1 September 2017 or as soon thereafter as practicable.” AR 888. He also
stated that he “underst[oo]d that if the Secretary of the Army accepts this application, it may not
be withdrawn except for extreme compassionate reasons or for the definitely established
convenience of the Government.” AR 889. He further acknowledged that, if his request were
approved, an Army grade determination review board would decide the last grade in which he
had served satisfactorily and he would be retired in that grade. Id. Mr. Richardson’s request for
early retirement was granted, and on September 19, 2017, the ASA for Review Boards
determined that Mr. Richardson should be retired in the grade of SFC. AR 69. Mr. Richardson
was placed on the retired list at the rank of SFC effective November 30, 2017. Compl. ¶ 9;
AR 1040.
4. Army Board for the Correction of Military Records (“ABCMR”)
Recommendation and Assistant SA for Manpower and Reserve
Affairs (“ASA (M&RA)”) Decision
On May 22, 2017, roughly seven weeks after submitting his retirement request, Mr.
Richardson appeared to change his mind about retiring and petitioned the ABCMR for an
expedited review of his pending separation. Compl. ¶¶ 10, 68; AR 133. He requested that the
GOMOR and OER be removed from his personnel file, his name be removed from the DCII, and
that he be reinstated in the Army, promoted to CWO2, and awarded all back pay and allowances.
Compl. ¶¶ 10, 68; AR 135–43. On November 16, 2017, the ABCMR unanimously
recommended partial relief. Compl. ¶ 69; AR 8–10. It recommended his reinstatement and
promotion with back pay and allowances, and the GOMOR and OER’s removal from his
personnel file. Compl. ¶¶ 69–70; AR 8–10. The ABCMR did not recommend reversing his
titling but suggested that the Army consider amending the investigative record to reflect that the
allegations against Mr. Richardson were “unfounded.” Compl. ¶¶ 11, 69–70; AR 9–10.
However, the Acting ASA (M&RA) disagreed with the ABCMR’s recommendations and denied
any relief. Compl. ¶ 71; AR 7.
1
In addition to Plaintiff’s pleadings, the Court takes judicial notice of Mr. Richardson’s
acknowledgement of receipt of his separation notice and his retirement request form, which he
does not include in his Complaint or its appendices. AR 887–93. The Court and the parties
discussed these documents throughout the litigation. E.g., Def.’s Mot. to Dismiss and Mot. for J.
on the Admin. R. (“Def.’s Mots.”), 8, 19–20, ECF No. 31; Pl.’s Resp. and Reply in Supp. of Pl.’s
Mot. for J. on the Admin. R. (“Pl.’s Resp.”), 7–8, ECF No. 34; Def.’s Reply in Supp. of Def.’s
Mots. (“Def.’s Reply”), 7, 14, ECF No. 37. See also Tr. of Oral Arg. (Apr. 13, 2022) (“Hr’g
Tr.”), 7:24–8:16; 10:6–11:19; 16:13–17:2; 18:21–19:9; 24:15 – 26:16; 27:12–28:25, ECF No. 46.
Their validity “can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b)(2). Thus, although this document entered the
record after Plaintiff filed the Complaint, the Court may consider it for the purpose of evaluating
Defendant’s 12(b)(6) motion.
4
B. Procedural History
On January 27, 2020, Plaintiff filed his Complaint in this Court. See Compl. Following
Defendant’s Uncontested Motion for Voluntary Remand and Stay of Court Proceedings, ECF
No. 5, this Court remanded the case to the ASA (M&RA) with an order to issue a new decision.
Order (Mar. 31, 2020), ECF No. 6. However, the result on remand remained the same: the ASA
(M&RA) again denied Mr. Richardson any relief. See Dec. on Remand (Aug. 20, 2020), ECF
No. 11. On November 20, 2020, the case returned to this Court and the Government filed the
Administrative Record. See AR, ECF Nos. 18, 18-1–4.
On February 10, 2021, Plaintiff filed a Motion for Judgment on the Administrative
Record. Pl.’s Mot. for J. on the Admin. R., ECF No. 26. On April 15, 2021, Defendant filed a
Response and Cross-Motion to Dismiss pursuant to RCFC 12(b)(1) and 12(b)(6) or, in the
alternative, for Judgment on the Administrative Record. See Def.’s Mots. Over the next several
months, the parties filed responsive pleadings. See Pl.’s Resp.; Def.’s Reply. Pursuant to an
order from this Court, Order (Mar. 14, 2022), ECF No. 40, the parties filed supplementary briefs
on March 25, 2022. See Def.’s Suppl. Br., ECF No. 41; Pl.’s Suppl. Br., ECF No. 42. Oral
argument was conducted on April 13, 2022. See Tr. of Oral Arg. (Apr. 13, 2022) (“Hr’g Tr.”),
ECF No. 46. The Court ordered post-hearing briefs, which the parties filed on May 18, 2022.
See Def.’s Post-Arg. Suppl. Br., ECF No. 50; Pl.’s Reply, ECF No. 51.
II. Jurisdiction and Standard of Review
A. Jurisdiction
The Tucker Act grants the Court of Federal Claims jurisdiction over “any claim against
the United States founded either upon the Constitution, or any Act of Congress or any regulation
of an executive department, or upon any express or implied contract with the United States, or
for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a).
Although the statute waives sovereign immunity, it does not create a substantive cause of action;
a plaintiff must still “identify a separate source of substantive law that creates the right to money
damages.” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed. Cir.
2008) (quoting Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in
relevant part)); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d 1338, 1343 (Fed. Cir.
2008) (stating that “the plaintiff must look beyond the Tucker Act to identify a substantive
source of law that creates the right to recovery of money damages against the United States”
(citation omitted)); United States v. Mitchell, 463 U.S. 206, 216 (1983) (stating that “[i]f a claim
falls within the terms of the Tucker Act, the United States has presumptively consented to suit,”
but that “[i]t nonetheless remains true that the Tucker Act ‘does not create any substantive right
enforceable against the United States for money damages’” (quoting United States v. Mitchell,
445 U.S. 535, 538 (1980))).
B. Motion to Dismiss Standard of Review
A court considering a motion to dismiss must accept all well-pled facts as true and draw
all reasonable inferences in the plaintiff’s favor. See, e.g., Erickson v. Pardus, 551 U.S. 89,
93–94 (2007) (collecting cases); Pixton v. B & B Plastics, Inc., 291 F.3d 1324, 1326 (Fed. Cir.
2002). When jurisdictional facts are challenged, such as under RCFC 12(b)(1), the plaintiff must
5
demonstrate jurisdiction by a preponderance of the evidence. See McNutt v. Gen. Motors
Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); Reynolds v. Army & Air Force Exch. Serv.,
846 F.2d 746, 748 (Fed. Cir. 1988). Granting a motion to dismiss for failure to state a claim
under RCFC 12(b)(6) “is appropriate when the facts asserted by the claimant do not entitle him
to a legal remedy.” Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002). Denial of
the motion is warranted when the complaint presents “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
III. Discussion
A. This Court Lacks Jurisdiction over Plaintiff’s Claims for Equitable Relief
and Claims Against Individual Federal Officials.
Plaintiff’s Complaint names the Secretaries of the Army and Defense as defendants.
Compl. ¶¶ 19–24. However, the United States is the only proper defendant in the Court of
Federal Claims and, with only narrow exceptions that do not apply in this case, the Court does
not have jurisdiction over claims against any other defendants. 2 E.g., United States v. Sherwood,
312 U.S. 584, 588 (1941) (“[I]f the relief sought is against others than the United States the suit
as to them must be ignored as beyond the jurisdiction of the [Court of Claims].”); Brown v.
United States, 105 F.3d 621, 624 (Fed. Cir. 1997) (“The Tucker Act grants the Court of Federal
Claims jurisdiction over suits against the United States, not against individual federal officials.”).
Thus, this Court may not adjudicate any claims against the Secretaries of the Army and Defense,
and will evaluate Mr. Richardson’s claims only as they relate to the United States government.
In addition to his requests related to reinstatement and back pay, Plaintiff asks that the
Court order the Army to alter the record of its investigation to deem the underlying allegations
“unfounded,” remove his name from the DCII (undo his “titling”), and strike the GOMOR and
OER from his personnel file. Compl. at 25–26. Pursuant to RCFC 12(b)(1), Defendant moves to
dismiss these claims for lack of subject matter jurisdiction. Def.’s Mots. at 15–19. It asserts that
the regulations relating to these functions are not money-mandating, and accordingly, the court
cannot exercise jurisdiction over those claims. Id.While the Court of Federal Claims may grant equitable relief “as an incident of and
collateral to” judgment for money damages in order to “provide an entire remedy and to
complete the relief afforded by the judgment,” according to Defendant, altering these documents
is not part of, or an administrative predicate for, any money-related relief. Id. at 17–18 (quoting
28 U.S.C. § 1491(a)(2)). Defendant explains that titling is an administrative procedure that does
not imply guilt or innocence. Id. at 18 n.4 (first citing Dep’t of Def. Instr. 5505.07 ¶1.2(c); and
then citing Army Reg. 190-45 ¶ 4-3(a)). Even if Plaintiff were to prevail on his back pay claims,
denial of his requests for modification of the investigation report, titling, GOMOR, and OER
would not preclude him from obtaining monetary relief. Id. at 18; Def.’s Reply at 2–5. In the
Government’s view, these record modification requests sound more in tort or due process,
neither of which is within the Court’s jurisdiction. Id. at 16. In response, Plaintiff asserts the
requested document alteration is related to a money-mandating provision of law. See Pl.’s Resp.
2
The only exceptions—inapplicable here—are that certain parties may be joined in an existing
case pursuant to RCFC 19 and 20 or may intervene in an existing case pursuant to RCFC 24.
6
at 4–6. He argues that his separation would not have occurred were it not for the allegedly
flawed investigation that produced the titling. Id. at 5–6. This titling, he claims, led to the
GOMOR and the OER, and in turn triggered the PRB that led to his removal from the promotion
list. Id.This Court agrees that it lacks subject matter jurisdiction over Plaintiff’s claims for
equitable relief. “To provide an entire remedy and to complete the relief afforded by the
judgment,” the Tucker Act provides that the Court of Federal Claims “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, and such orders
may be issued to any appropriate official of the United States.” 28 U.S.C. § 1491(a)(2).
However, “[t]he Court of Federal Claims has no power ‘to grant affirmative non-monetary relief
unless it is tied and subordinate to a money judgment.’” James v. Caldera, 159 F.3d 573, 580
(Fed. Cir. 1998) (quoting Austin v. United States, 206 Ct. Cl. 719, 723 (1975)).
Equitable relief that is an incident of and collateral to judgment for money damages is
relief that is necessary to facilitate the payment of money damages. Where there is “no need to
consider [the injunctive relief sought] in deciding whether [the plaintiff] was entitled to back
pay,” the requested relief is “entirely unrelated to the back pay issue,” and the “claim[] for
equitable relief . . . lie[s] outside the Tucker Act jurisdiction of the Court of Federal Claims.” Id.
at 581. “Equitable doctrines can be employed incidentally to [the Court of Federal Claims’]
general monetary jurisdiction either as equitable procedures to arrive at a money judgment, or as
substantive principles on which to base the award of a money judgment.” Pauley Petroleum,
Inc. v. U.S., 591 F.2d 1308, 1315–16 (Ct. Cl. 1979).
Titling and derogatory administrative filings do not automatically trigger separation, and
their removal would not change the government’s financial obligations to Mr. Richardson.
Although they concern the same underlying set of facts as the reinstatement and promotion-
related claims, titling and administrative filings are not sufficiently related to the monetary
components of the reinstatement and promotion-related claims to be incidents of or collateral to
them. See Voge v. United States, 844 F.2d 776, 781 (Fed. Cir. 1988).
In Voge, the U.S. Court of Appeals for the Federal Circuit decided that “review of [the
plaintiff’s] service records cannot be justified as ‘incident of and collateral to’ the award of
[monetary damages] because there was no reason to consider them in deciding whether in the
[money-related] decision the military followed its own regulations.” Id. The court stated
that “the fortuity of the [money-related] decision” was insufficient “to open all of [the plaintiff’s]
records and the actions of boards and officers over a period of several years to judicial scrutiny
when they would be otherwise unreviewable in the Claims Court.” Id. The same is true in the
instant case. Although all of Plaintiff’s claims concern the same underlying events, the
investigation report, DCII, GOMOR, and OER have no bearing on Mr. Richardson’s
entitlements under the Military Pay Act. Accordingly, this Court lacks subject matter
jurisdiction over those claims. RCFC 12(h)(3) (“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.”).
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B. Plaintiff Voluntarily Retired from the Army.
1. Statutes That Render Certain Retirements Involuntary Do Not Apply
to Plaintiff.
In addition to its motion under RCFC 12(b)(1), Defendant moves to dismiss Plaintiff’s
remaining allegations under RCFC 12(b)(6) for failure to state a claim upon which relief can be
granted. See Def.’s Mots. at 19–22. It is well-settled that a former servicemember’s claim for
wrongful retirement or separation must fail under RCFC 12(b)(6) if that retirement or separation
was voluntary. See Metz v. United States, 466 F.3d 991, 1000 (Fed. Cir. 2006) (holding that “the
issue of the voluntariness of a plaintiff's separation from service,” which had long been
considered “a jurisdictional concern,” is rather “a part of the merits of a case brought under the
Military Pay Act”); Carmichael v. United States, 298 F.3d 1367, 1371 (Fed. Cir. 2002) (stating,
before Metz, that “[i]f a discharge from service is voluntary, then the Court of Federal Claims
lacks jurisdiction to review the discharge or any back pay damages claims”).
A retirement is presumed to be voluntary, but that presumption may be rebutted.
Carmichael, 298 F.3d at 1372. Indeed, some retirements are considered involuntary by statute.
For example, when certain commissioned officers are passed over for promotion by two
consecutive promotion boards, they must retire or be discharged. 10 U.S.C. §§ 580(a)(1),
631(a)(1)–(2), 632(a)(1)–(2). Even if such an officer retires before the last possible date
permitted by the statute, that retirement “shall be considered to be an involuntary retirement or
discharge for purposes of any other provision of law.” 10 U.S.C. §§ 580(e)(4), 631(b), 632(b).
Mr. Richardson argues that, because his notification of separation referred to this requirement,
“Plaintiff was discharged in line with 10 U.S.C. § 580, titled ‘regular warrant officers twice
failing of selection for promotion: involuntary retirement or separation.’” Pl.’s Resp. at 10–11
(quoting AR 891).
However, the relevant statutes only apply to chief warrant officers in the pay grades W-2
through W-4 and commissioned officers in the pay grades of O-2 through O-4. 10 U.S.C.
§§ 573(a)(1), 580(a)(1), 631(a)(1)–(2), 632(a)(1)–(2). As a WO, rather than a chief warrant
officer, Mr. Richardson held the pay grade W-1, and his promotion was governed by
“regulations prescribed by the Secretary concerned.” 10 U.S.C. § 573(a)(2). The Army’s
regulation pursuant to this statute requires that an active-duty officer “not recommended for
promotion to the grade of . . . CW[O]2 will be separated not later than 90 calendar days after the
Promotion Review Authority approves the nonrecommndation [sic] for promotion.” Army Reg.
600-8-24 ¶ 5-11 (citation omitted).
Although Mr. Richardson’s separation notice refers to circumstances in which an officer
is twice passed over for promotion, it neither explicitly states nor implies that these factors
applied to Mr. Richardson. The part of the statute that applies to WOs delegates authority over
promotion procedures to the Army. 10 U.S.C. § 573(a)(2). The Army’s regulation on the
subject—unlike the statutes that apply to other officers—does not require that a retirement “be
considered . . . involuntary . . . for purposes of any other provision of law,” and does not rebut
the presumption of voluntariness. Army Reg. 600-8-24 ¶ 5-11; see 10 U.S.C. §§ 580(e)(4),
631(b), 632(b). Accordingly, Mr. Richardson’s retirement was not involuntary as a matter of
law.
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2. Plaintiff’s Retirement Did Not Result from Duress or Coercion.
A retirement may also be “rendered involuntary if, among other things, it is obtained
under duress or coercion.” Carmichael, 298 F.3d at 1372. In Carmichael, the Federal Circuit
held that, to show a service member’s separation was involuntary because it resulted from duress
or coercion, a plaintiff “must demonstrate that: (1) he involuntarily accepted the terms of the
government; (2) circumstances permitted no other alternative; and (3) said circumstances were
the result of the government’s coercive acts.” Id. at 1372. “Because this is not a disjunctive test,
a plaintiff must establish all three elements for the exception [to the presumption of
voluntariness] to apply.” Nickerson v. United States, 35 Fed. Cl. 581, 586 (1996), aff’d, 113
F.3d 1255 (Fed. Cir. 1997) (Table). Further, coercion is measured by an objective standard, not
the individual’s subjective perception. Carmichael, 298 F.3d at 1372. The government’s
wrongful conduct, such as a failure to adhere to its own regulations, could constitute coercive
action. Id. (citing Roskos v. United States, 549 F.2d 1386, 1389–90 (Ct. Cl. 1977)); see also,
e.g., Schultz v. U.S. Navy, 810 F.2d 1133 (Fed. Cir. 1987) (“A resignation is not voluntary where
an agency imposes the terms of an employee’s resignation, the employee’s circumstances permit
no alternative but to accept, and those circumstances were the result of improper acts of the
agency.”).
a. Carmichael Prong One
The first prong of the Carmichael test requires a plaintiff to demonstrate that they
“involuntarily accepted the terms of the government.” Carmichael, 298 F.3d at 1372. Plaintiff
claims that he demonstrates involuntariness because he availed himself of every avenue of
redress the Army provided to avoid separation. See Pl.’s Resp. at 11 – 12; Hr’g Tr. 10:23–11:10.
He alleges that “[a]t every point he was given a choice to stay and fight, he, in fact, did at the
BOI, at the PRB.” Hr’g Tr. 11:3–11:5. Regarding the five-month gap between his retirement
request on April 5, 2017, and his mandatory retirement date of September 5, 2017, Plaintiff
claims that the Federal Circuit, in Adkins v. United States, “rejected” the argument “that [a]
discharge was considered voluntary due to [a plaintiff’s] election of an earlier date” than
required. Pl.’s Resp. at 10 (citing Adkins, 68 F.3d 1317, 1321 (Fed. Cir. 1995)).
Conversely, the Government points to the language in Mr. Richardson’s retirement
documents to illustrate that his retirement was voluntary, noting that the narrative reason listed
on his Certificate of Release from Active Duty is “voluntary early retirement.” Def.’s Mots.
at 20 (quoting Compl. Ex. 10 at 66, ECF No. 1-4). Even the ABCMR decision on which Mr.
Richardson relied states that he “requested [early retirement]” and “requested release from active
duty.” Id. (citing Compl. Ex. 10 at 5, 44 ¶ 25). The Government adds that Mr. Richardson’s
reliance on Adkins is “misplaced” because the plaintiff in that case had been passed over twice
for promotion, so his retirement was deemed involuntary by statute, regardless of the date that he
submitted his paperwork. Def.’s Reply at 10 (citing Adkins, 68 F.3d at 1319–21).
Mr. Richardson fails to rebut the presumption that his retirement was voluntary. In fact,
the record overwhelmingly indicates the voluntary nature of his retirement. On April 4, 2017,
Mr. Richardson signed an acknowledgment of his separation notice, which delineated his options
for leaving active duty. AR 891–93. After choosing the early retirement option, he wrote in a
request for an SRB, but added that if his request were denied, he would apply for early
retirement. AR 893. And if the early retirement application were denied, he wrote that he would
9
accept a Reserve appointment. Id. Even though the separation notice stated that Mr. Richardson
had until September 5, 2017, to leave active duty, he filed an application for early retirement the
very next day. AR 888.
Moreover, despite the ample time available to make a decision or petition the ABCMR,
Mr. Richardson submitted his retirement request roughly seven weeks before filing his petition.
Compare AR 893 (retirement request dated April 5, 2017), with AR 133 (ABCMR petition dated
May 22, 2017). As Plaintiff’s counsel conceded at oral argument, “[h]e was not required” to
retire when he did, or before filing a petition with the ABCMR. Hr’g Tr. 26:2–26:10. He could
have waited to resign until after his ABCMR appeal was resolved, either in his favor or against.
When Mr. Richardson chose to retire on April 5, 2017, he acknowledged that the retirement
application could “not be withdrawn, except for extreme compassionate reasons or for the
definitely established convenience of the Government.” AR 889–90.
The fact that Mr. Richardson apparently changed his mind about retirement and engaged
in administrative processes to attempt to remain on active duty does not negate his clear
expression of intent to retire at the time he submitted his request. Indeed, on his retirement
application, Mr. Richardson explicitly acknowledged that it could “not be withdrawn except for
extreme compassionate reasons or for the definitely established convenience of the
Government.” See id. As Defendant’s counsel states, “[h]e was a military officer and he
voluntarily signed the paperwork. He applied for retirement. . . . Whether he thought this was
sufficient doesn’t make his retirement involuntary.” Hr’g Tr. 19:23–20:3.
b. Carmichael Prong Two
The second prong of the Carmichael test requires that “circumstances permitted no other
alternative” but to “involuntarily accept[] the terms of the government.” Carmichael, 298 F.3d
at 1372. Whether Plaintiff satisfies this prong depends on what “the terms of the government”
were to which “the circumstances permitted no alternative.”
Plaintiff’s arguments imply that the relevant term is the termination of his appointment as
an active-duty officer. He contends that the fact that there were choices in the way in which he
could leave is irrelevant because circumstances permitted no alternative to his active-duty
appointment ending. See Pl.’s Resp. at 9–12. See also Hr’g Tr. 11:8–10; 26:18–24; 28:11–25.
Plaintiff points to the notification of separation, which “emphatically state[d]” that he “must
separate from the Army” and that his separation date was “established by Federal statute.” Pl.’s
Resp. at 12 (quoting AR 891–92). He adds that requesting to join the Reserves was not a viable
alternative because it would still mean the termination of his employment, and in any event,
there was no guarantee that the Reserves would accept him. Hr’g Tr. at 10:19–21, 16:15–17:2.
Plaintiff invokes Christie v. United States, 518 F.2d 584 (Ct. Cl. 1975), the case from
which Carmichael derived the three-part involuntariness test, to argue that his retirement was
involuntary. Pl.’s Resp. at 9–10. In that case, a federal employee retired instead of availing
herself of the procedures in place to resist a dismissal for cause. Christie, 518 F.2d at 586–87.
The Court of Claims determined that the plaintiff “had a choice” in that “[s]he could stand pat
and fight,” but “chose not to.” Id. at 587. The court held that “[m]erely because plaintiff was
faced with an inherently unpleasant situation in that her choice was arguably limited to two
unpleasant alternatives does not obviate the voluntariness of her resignation.” Id. In Plaintiff’s
view, this means that the “alternatives” in the test refer to means through which a plaintiff could
10
have resisted termination but chose not to. Pl.’s Resp. at 9–12. Plaintiff claims that “[u]nlike
Christie and other cases where servicemembers are given the option of voluntarily retiring in lieu
of ‘unpleasant alternatives,’ Plaintiff was never given the option to fight to stay in service to the
United States Army,” and that “Plaintiff only had the choice of retiring early or retiring by the
date required by the Federal statute.” Pl.’s Resp. at 12 (citing AR 891–92).
Defendant insists that the manner in which Mr. Richardson’s employment ended is the
relevant term “to which circumstances permitted no alternative.” Carmichael, 298 F.3d at 1372.
The “series of options from which [Mr. Richardson] could choose regarding separation,”
including those that would allow him to continue serving in another capacity, demonstrate that
Mr. Richardson made a voluntary choice to retire. Def.’s Mots. at 19–20; see also Def.’s Reply
at 7, 9, 12; Hr’g Tr. at 4:2–5:10, 19:14–19; 19:23–20:3. Defendant argues that Mr. Richardson’s
retirement was voluntary because he retired rather than confronting any “less desirable” or
“unpleasant alternatives.” Def.’s Reply at 6–7, 9 (quoting Sammt v. United States, 780 F.2d 31,
32–33 (Fed. Cir. 1985); Def.’s Mots. at 10, 21–22 (quoting Sammt, 780 F.2d at 33); Hr’g Tr.
4:7–13.
The U.S. Court of Appeals for the Federal Circuit’s precedent supports Defendant’s
position. That court first addressed the voluntariness of a service member’s retirement in Sammt
v. United States. In that case, as in the instant case, the plaintiff was notified that his tenure as an
active-duty officer would end on a certain date unless he requested retirement at an earlier date.
780 F.2d at 31–32. Again, as in the instant case, Major Sammt exhausted every available form
of administrative appeal to no avail and ultimately submitted a retirement request. Id. But the
Federal Circuit determined that the retirement was voluntary, making two key findings. First,
citing Christie, the court “conclude[d], as [it had] in civilian pay cases, that the exercise of an
option to retire is not rendered involuntary by the imminent imposition of a less desirable
alternative.” Id. at 32. Second, it noted that Major Sammt retired pursuant to a statute that
pertained to “voluntary” retirements, whereas, if he had let his commission expire by operation
of law, a related statute would have rendered his retirement “involuntary.” Id. at 33.
The statutory framework under which Major Sammt retired was replaced between the
time he retired and the Federal Circuit’s decision in his case. Under current law, a military
retirement or discharge like that of Major Sammt—triggered because the officer was passed over
twice for promotion—“shall be considered to be an involuntary retirement or discharge for
purposes of any other provision of law.” 3 10 U.S.C. §§ 580(e)(4), 631(b), 632(b). Nonetheless,
the court unequivocally rooted its decision in “the rationale that a choice of unpleasant
alternatives does not make a choice involuntary.” Sammt, 780 F.2d at 33. The Federal Circuit
has continued to cite Sammt in both military and civilian employment cases for this proposition.
See Cruz v. Dep’t of the Navy, 934 F.2d 1240, 1245 (Fed. Cir. 1991); Solomon v. Dep’t of the
Navy, 36 F.3d 1115 (Fed. Cir. 1994) (Table); Jenson v. Merit Sys. Prot. Bd., 47 F.3d 1183 (Fed.
3
This is the same statutory framework that Plaintiff unsuccessfully argues should apply to him,
even though it does not apply to WOs.
11
Cir. 1995) (Table); Moyer v. United States, 190 F.3d 1314, 1318–19 (Fed. Cir. 1999). This
reasoning survived the change to the statutory scheme. 4
The same analysis used in Sammt, where the plaintiff’s choices were confined to how,
rather than whether, to end his active service, applies here. Because Mr. Richardson, like Major
Sammt, requested and obtained a retirement on more favorable terms than at least one
alternative, there was an alternative to accepting the terms of the government. Sammt, 780 F.2d
at 32; Carmichael, 298 F.3d at 1372.
c. Carmichael Prong Three
The third prong of the Carmichael test requires a plaintiff to demonstrate that the
“circumstances [that permitted no other alternative but to involuntarily accept the terms of the
government] were the result of the government’s coercive acts.” Carmichael, 298 F.3d at 1372.
A plaintiff may demonstrate coercion by showing that the government’s conduct was
“wrongful.” Roskos, 549 F.2d at 1389–90. Plaintiff puts forward three theories of the Army’s
wrongful conduct.
i. Bad Faith
First, Mr. Richardson claims that the Army demonstrated bad faith by using its denial-of-
promotion framework to achieve a separation from active duty that it could not achieve through a
BOI. Pl.’s Resp. at 13–14 (“From the instant the Plaintiff was given the GOMOR and adverse
OER, the Government has operated with unclean hands, not happy with the BOI they sent it to a
PRB and forced their ultimate construct.”). Second, he argues that the SA violated his own
regulation by refusing to grant Plaintiff the relief recommended by a unanimous ABCMR panel.
Hr’g Tr. 31:14–21 (“[T]he wrongful conduct was the initial BCMR decision that the Government
now wants to obviate. . . [The ASA (M&RA)] didn’t follow his own regulations.”). Finally, he
argues that the Army abused its discretion and violated his due process by convening a PRB
without waiting to review his BOI report, which he had told HRC would arrive imminently.
Hr’g Tr. 33:2–22 (stating that Plaintiff’s inability to present the BOI report to the PRB
“eviscerates any due process that he may have had”).
Plaintiff’s first contention is simply conclusory. He provides no factual allegations to
support his assertion that the Army acted in “bad faith” or with “unclean hands” by pursuing his
separation and then removing him from the promotion list. See Pl.’s Resp. at 13–14. Although
4
Notwithstanding this continued reliance on the “less desirable alternative” rationale, the Court
of Federal Claims distinguished Sammt based on the change in the statutory scheme in at least
one instance. In Canonica v. United States, the plaintiff faced “a mandatory separation program
which allowed three methods of separation,” and “had no choice concerning whether the
regulation would apply to him and compel his separation.” 41 Fed. Cl. 516, 521 (1998). The
plaintiff’s efforts to remain on active duty were denied and he “unwillingly retired pursuant to
that program.” Id. Under these circumstances, the court decided that “[t]o say that plaintiff's
selection of one of the three options under the mandatory [retirement] regulation made his
retirement voluntary would be a corruption of language,” and “conclude[d] that his retirement
was involuntary.” Id.12
he states that his “retirement was not voluntary” and that the government’s acts were “coercive,”
he does not demonstrate that an act of bad faith led him to retire how and when he did. See id.“[A] plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555–56 (2007) (quoting Fed. R. Civ. P. 8(a)(2)).
ii. Violation of Army Regulation
Mr. Richardson’s second argument, that the Army violated its own regulations when the
ASA (M&RA) did not follow the recommendation of a unanimous ABCMR panel, similarly
fails. Because the ASA’s decision regarding the ABCMR recommendation came after Mr.
Richardson’s retirement, it could not have “directly caused” the retirement. See Carmichael, 298
F.3d at 1376 (quoting Roskos, 549 F.2d at 1389). Thus, it cannot cure the voluntariness that is
fatal to a claim for back pay. Although a plaintiff who voluntarily retired may sustain a claim for
money or benefits to which they would be entitled “irrespective of the manner in which the
claimant leaves the service,” a plaintiff “who voluntarily gives up any right to compensation and
benefits cannot later claim entitlement to such.” Moyer, 190 F.3d at 1319. Plaintiff’s back pay
claim is premised on a wrongful retirement; events that occurred after he retired are irrelevant.
iii. Due Process Violation
Finally, Plaintiff fails to show that the government’s actions constituted an abuse of
discretion resulting in a due process violation, or that such a violation could satisfy the third
prong of the Carmichael test. At oral argument, Plaintiff’s counsel stated that he “would relish
the opportunity . . . to address” the issue of whether due process required the PRB to wait until it
could review his BOI report and whether this could satisfy the third prong of the Carmichael
test. Hr’g Tr. 33:2–22. However, after the Court allowed briefing on precisely that issue,
Plaintiff stated that “[t]he issue which grants Plaintiff relief is not whether abuse of government
discretion is tantamount to wrongful conduct for purposes of Carmichael,” but “rather, the issue
at hand is whether the Army is able to ignore their own regulations to override a unanimous
decision from the ABCMR.” Pl.’s Reply at 1. Plaintiff goes on to argue that “[t]he precedent
following Carmichael has progressively expanded its categories of what is considered ‘coercive
acts’ by the government,” and cites three cases from the Court of Federal Claims. Id. at 2–3
(first citing Sinclair v. United States, 66 Fed. Cl. 487, 492 (2005); then citing Sommers v. United
States, 149 Fed. Cl. 529, 537 (2020); and then citing Banks v. United States, No. 19-1888C, 2021
U.S. Claims LEXIS 2486, at *21 (Fed. Cl. Oct. 29, 2021).
Plaintiff does not offer any authority for this suggestion of an expanding definition of
coercion, nor do the cases he cites support this contention. Sinclair observes that deception or
misrepresentation could render a resignation involuntary, a proposition that has stood for
decades. Sinclair, 66 Fed. Cl. at 492 (citing Tippett v. United States, 185 F.3d 1250, 1255 (Fed.
Cir. 1999)); see also Christie, 518 F.2d at 588. Sommers merely notes that the test for coercion
is an objective test, another proposition that pre-dates Carmichael. Sommers, 149 Fed. Cl. at 537
(citing Carmichael, 298 F.3d at 1372); see also Christie, 518 F.2d at 587.
And while Banks examines various indicia of involuntariness, all are grounded in decades
of Circuit precedent. Banks, 2021 U.S. Claims LEXIS 2486, at *21 (“[A] plaintiff may show an
involuntary resignation, and thereby vitiate the presumption that the resignation was voluntary, if
13
the resignation stemmed from: (1) duress or coercion; (2) government officers’ misrepresentation
or deception; (3) time pressure; or (4) an unsuccessful withdrawal before the effective date.”
(citation omitted)). See also Cunningham v. United States, 423 F.2d 1379, 1384–85 (Ct. Cl.
1970) (unsuccessful withdrawal of resignation); Perlman v. United States, 490 F.2d 928, 932–33
(Ct. Cl. 1974) (time pressure). None of these cases demonstrate that “[t]he precedent following
Carmichael has progressively expanded its categories of what is considered ‘coercive acts’ by
the government,” nor that an abuse of discretion or a due process violation is contemplated as the
sort of “wrongful conduct” that could render a retirement involuntary. Pl.’s Reply at 2.
A plaintiff seeking back pay “must establish all three elements [of the test for duress or
coercion] for the exception [to the presumption of voluntariness] to apply.” Nickerson, 35 Fed.
Cl. at 586. In this case, none of the three elements is present. Accordingly, Plaintiff has failed to
overcome the presumption that his retirement from the Army was voluntary. And because
involuntariness is an essential component of a back pay claim under the Military Pay Act,
Plaintiff fails to state a claim upon which relief can be granted.
IV. Conclusion
For the reasons set forth above, this Court lacks subject matter jurisdiction over
Plaintiff’s request for equitable relief that is not “an incident of or collateral to” his request for
damages, and his allegations fail to state a claim upon which relief can be granted. Accordingly,
Defendant’s Motion to Dismiss pursuant to RCFC 12(b)(1) and 12(b)(6) is GRANTED, the
parties’ Cross-Motions for Judgment on the Administrative Record are DENIED as moot, and
the Complaint must be DISMISSED. The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
s/ Carolyn N. Lerner
CAROLYN N. LERNER
Judge
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