Driscoll v. United States ( 2022 )

In the United States Court of Federal Claims
No. 19-1640
(Filed: August 11, 2022)
NOT FOR PUBLICATION
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RONALD J. DRISCOLL, *
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Plaintiff, *
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v. *
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UNITED STATES, *
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Defendant. *
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Carol Anne Thompson, The Federal Practice Group, Washington, DC, counsel for Plaintiff.
Stephanie Fleming, U.S. Department of Justice, Civil Division, Washington, DC, counsel for
Defendant.
MEMORANDUM OPINION AND ORDER
DIETZ, Judge.
On March 3, 2022, the Court issued an opinion finding that Plaintiff, Ronald J. Driscoll,
was wrongfully separated from the Army. See Op. & Order at 16, ECF No. 38 [hereinafter
March 3 Op.]. The Court held that the Army committed procedural error by rejecting Driscoll’s
matters of mitigation and extenuation, which Driscoll was entitled to submit “[t]o ensure due
process” in the separation proceedings under the Army’s Qualitative Management Program
(“QMP”). Id. at 11-12 (quoting Military Personnel (“MILPER”) Message 16-251 ¶ 6b). Further,
the Court held that the Army Board for the Correction of Military Records (“ABCMR”)
misapplied the presumption of regularity to uphold the separation decision and that the
ABCMR’s consideration of Driscoll’s matters of mitigation and extenuation did not cure the
original defective procedure. Id. at 12-15. To afford Driscoll appropriate relief for his wrongful
separation under the Military Pay Act, 37 U.S.C. § 204, the Court remanded the case to the
ABCMR with instructions for the ABCMR to: (1) “correct[] . . . Driscoll’s military record to
reflect his retroactive reinstatement to active duty in the United States Army effective November
1, 2017[;]” (2) “determine the amount of backpay and other benefits or allowances that Driscoll
would have received but for his wrongful discharge[;]” and (3) “make any other corrections and
take any other actions that are appropriate in light of the Court’s decision that Driscoll’s
discharge was wrongful.” Id. at 16.
On June 30, 2022, the government moved for reconsideration of the Court’s ruling. See
Def.’s Mot. for Reconsideration, ECF No. 41 [hereinafter Def.’s Mot.]. Identifying purported
errors in the Court’s instructions for the ABCMR, the government requests that the Court amend
its remand order to:
(1) direct ABCMR to reconsider the QMP’s decision to separate Mr. Driscoll,
considering his materials submitted in mitigation; (2) direct [Defense Finance
Accounting Service (“DFAS”)] (not ABCMR) to calculate backpay that would
have been due to Mr. Driscoll for the period between November 1, 2017 and June
30, 2020; and (3) stay any reinstatement of or payment to Mr. Driscoll until the
parties have an opportunity to review the remand decision . . . and until this Court
issues a Final Judgment and Order.
Id. at 2-3.
The government’s motion for reconsideration is DENIED. With respect to the
government’s first request, the ABCMR already considered Driscoll’s matters in mitigation and
extenuation and concluded that Driscoll would have been separated regardless of whether the
submission was considered by the QMP Board. See AR 25, ECF No. 17. As explained in the
Court’s March 3rd Opinion, however, the ABCMR’s consideration of Driscoll’s submission
cannot cure the original procedural defect during the QMP proceedings. See March 3 Op. at 15-
16. With respect to the government’s second and third requests, the Court believes that the
government’s proposed instructions regarding backpay and reinstatement to active duty do not
conflict with the broad remand instructions contained in the Court’s March 3rd Opinion.
Nevertheless, while the Court concludes that reconsideration of its remand instructions is
unnecessary, to avoid unintended and impermissible consequences of the Court’s order, the
Court will supplement its previous remand order to clarify its instructions.
I. DISCUSSION
Rule 54(b) of the Rules of the United States Court of Federal Claims (“RCFC”) states
that “any order or other decision, however designated, that adjudicates fewer than all the claims
. . . may be revised at any time before the entry of a judgment[.]” RCFC 54(b). As opposed to
RCFC 59 or 60, which address reconsideration of final judgments, RCFC 54(b) applies to
reconsideration of interlocutory orders.1 See Fla. Power & Light Co. v. United States, 66 Fed. Cl.
93, 97 (2005); L-3 Commc’ns Integrated Sys., L.P. v. United States, 98 Fed. Cl. 45, 48 (2011);
E&I Glob. Energy Servs., Inc. v. United States, 152 Fed. Cl. 524, 530 (2021). Under RCFC
54(b), a court has wide discretion to revise its prior orders “as justice requires.” L-3 Commc’ns,
98 Fed. Cl. at 48.
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The government brought is motion pursuant to RCFC 59(a) and 59(e). See Def.’s Mot. at 1. Because the Court’s
March 3rd Opinion and Order did not enter judgment but rather remanded the case and anticipated further
proceedings before the Court, the motion should have been brought pursuant to RCFC 54(b), though the Court
acknowledges that there is some debate on the point. See E&I Glob. Energy Servs., Inc. v. United States, 152 Fed.
Cl. 524, 530-33 (2021). If RCFC 59 were to apply, the motion could be denied as untimely due to its being filed
more than 28 days after the issuance of the order. See RCFC 59(e). Regardless, a court may modify its interlocutory
orders pursuant to its inherent powers and RCFC 54(b). See Fla. Power & Light Co. v. United States, 66 Fed. Cl. 93,
96 (2005).
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A. Remand for Consideration of Driscoll’s Matters of Mitigation and
Extenuation
The government argues that the Court, having found that the ABCMR failed to correct an
error in the QMP Board’s consideration of Driscoll’s matters of mitigation and extenuation,
“should have remanded again to ABCMR to reconsider whether Mr. Driscoll’s separation was
warranted after considering” Driscoll’s materials. Def.’s Mot. at 9. The Court addressed this
argument in its March 3rd Opinion, stating that “the ABCMR’s conclusion that Driscoll’s
separation was warranted, based upon a review of all the documents that should have been before
the QMP Board if not for the error, does not cure the defective procedure” because the error is
not amenable to harmless error review. March 3 Op. at 15-16 (citing Dodson v. United States,
988 F.2d 1199, 1206 (Fed. Cir. 1993)).
The government’s argument that “the Court mistakenly concluded that the ABCMR was
not empowered to reach a decision on retention or separation” misreads the Court’s opinion. See
Def.’s Mot. at 9. The Court did not rule that the ABCMR had no authority to make a separation
decision but rather ruled that the ABCMR could not cure the defective separation procedure with
a post hoc determination that Driscoll would have been separated even if the QMP Board
considered his full file. See March 3 Op. at 15-16. This conclusion goes to the harmlessness of
the error. See id. As the Court explained, the QMP Board’s “unbridled discretion in deciding
whether to recommend Driscoll for denial of continued service” precludes harmless error review,
which “requires ‘reviewable standards or factors [that] constrain the exercise of discretion’ so
that a court may assess the effect of an error on the outcome.” Id. at 15 (citing Wagner v. United
States, 365 F.3d 1358, 1365 (Fed. Cir. 2004)). Thus, even if the ABCMR has the authority to
convene a selection board to make a separation decision de novo, such a decision does not
change the fact that the original separation procedure was defective, entitling Driscoll to relief
for his wrongful separation. Accordingly, the Court denies the government’s request to instruct
the ABCMR to conduct another de novo review of Driscoll’s full file to determine whether his
separation was warranted.
B. Remand for Calculation of Backpay and Correction of Records
The government also argues that the Court’s remand instructions impermissibly require
the ABCMR to place Driscoll on active duty beyond the date on which his enlistment would
have otherwise ended. See Def.’s Mot. at 6-8. According to the government, this would
improperly expand the period to which Driscoll is entitled to backpay and would result in
immediate payment to Driscoll before the parties have an opportunity to discuss the need for
further proceedings before the Court. Id. at 8-10. Finally, the government argues that the Court
should have instructed DFAS, not the ABCMR, to calculate Driscoll’s backpay. Id. at 10. The
Court disagrees with the government’s inflexible reading of the Court’s instructions, but the
Court will supplement its remand order to clarify its instructions.
“[N]o one has a right to enlist or reenlist in the armed forces unless specially granted
one[.]” Dodson, 988 F.2d at 1208. Thus, this Court “lacks the authority to order reinstatement
after a servicemember’s enlistment term has expired.” Harper v. United States, 104 Fed. Cl. 287,
293 (2012) (citing Dodson, 988 F.2d at 1208). Further, “an enlisted serviceman who has been
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improperly discharged is entitled to recover pay and allowances only to the date on which his
term of enlistment would otherwise have expired had he not been so discharged.” Dodson, 988
F.2d at 1208.
Driscoll is entitled to backpay and correction of his records to reflect active duty only
until the point at which his enlistment otherwise would have concluded. According to the
government, Driscoll would have reached a retention control point (“RCP”) after twenty years of
service on June 30, 2022, at which point he would have been “allowed to apply to retire, or
would have been separated.”2 Def.’s Mot. at 7. The Court instructed the ABCMR to correct
Driscoll’s record “to reflect his retroactive reinstatement to active duty” effective as of the date
of his wrongful discharge, and to “determine the amount of back pay and other benefits or
allowances that Driscoll would have received but for his wrongful discharge.” March 3 Op. at
16. Further, the Court allowed the ABCMR to “make any other corrections and take any other
actions that are appropriate in light of the Court’s decision[.]” Id. Despite the government’s
contentions, nothing in these instructions prevented the ABCMR from using Driscoll’s RCP as
the end date for Driscoll’s active-duty status and for his entitlement to back pay, and nothing
required the ABCMR to place Driscoll on present active duty. Further, the Court’s instruction
that the ABCMR shall “determine” the back pay owed to Driscoll did not require that the
ABCMR perform the calculations itself or prohibit the ABCMR from referring the matter to
DFAS to make the calculations.
Nonetheless, the Court will clarify its instructions with a supplemental remand order.
Based on the government’s representations about Driscoll’s RCP, Driscoll may have been
eligible to apply for retirement at the time at which his enlistment would have concluded if not
for the wrongful separation. See Def.’s Mot. at 7. Because Army Regulation 635-200 ¶ 12-7
provides that soldiers are “eligible, but not entitled, to retire upon request” after reaching twenty
years of active service, the Court will direct the ABCMR to determine whether Driscoll would
have been retired upon request if not for the wrongful separation. See Lowry v. United States,
2021 WL 4888874, at *5 (Fed. Cl. Oct. 19, 2021) (instructing the Board for the Correction of
Naval Records to determine whether a plaintiff would have been transferred to the Fleet Reserve
if not for his wrongful separation).
II. CONCLUSION
For the reasons above, the Court DENIES the government’s motion for reconsideration,
ECF No. 41. The stay of the remand proceedings is LIFTED. The remand instructions contained
in the March 3, 2022 Opinion and Order are supplemented as follows.
On remand, the ABCMR shall:
1. Determine the date on which Driscoll’s enlistment would have ended if not for the
wrongful separation;
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Neither party discussed this fact or date during the briefings on the parties’ cross-motions for judgment on the
administrative record.
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2. Correct Driscoll’s records to reflect active-duty service from the date of Driscoll’s
wrongful separation through the date on which Driscoll’s enlistment would have
ended, if not for the wrongful separation;
3. Direct DFAS to calculate the amount of back pay and other benefits or allowances
that Driscoll would have received had he remained on active duty through the
date on which his enlistment would have ended, if not for the wrongful
separation;
4. Determine whether Driscoll would have been eligible to apply for retirement as of
the date on which his enlistment would have ended, if not for the wrongful
separation;
5. Permit Driscoll to submit materials in support of his request for retirement, if he
would have been eligible for retirement as of the date on which his enlistment
would have ended, if not for the wrongful separation;
6. Determine what criteria the Secretary of the Army would have used to determine
whether to grant Driscoll’s application for retirement, if he would have been
eligible for and applied for retirement as of the date on which his enlistment
would have ended, if not for the wrongful separation;
7. Determine whether, upon application of those criteria and consideration of any
materials that Driscoll wishes to submit, Driscoll’s request to retire would have
been granted or denied;
8. Make any other corrections and take any other actions that are appropriate in light
of the Court’s decision that Driscoll’s separation was wrongful and the decisions
reached by the ABCMR with respect to the instructions in this Order.
Remand proceedings SHALL BE COMPLETED within 120 days of this Order. Any
payments owed to Driscoll as a result of the remand are STAYED until the Court issues a final
judgment.
The parties SHALL FILE a joint status report every sixty days advising the Court of the
status of the proceedings on remand. The Court will retain jurisdiction over the case during the
remand period and STAYS the case during such time.
Pursuant to RCFC 52.2(e), the parties SHALL FILE notice with the Court within thirty
days of the ABCMR’s completion of its actions on remand stating whether such actions afford a
satisfactory basis for the disposition of the case and whether the parties require further
proceedings before the Court.
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The Clerk is directed to serve a certified copy of this Memorandum Opinion and Order
on the Army Board for Correction of Military Records at the following address:
Alexander Conyers
Department of the Army
Army Review Boards Agency
251 18th Street South, Suite 385
Arlington, VA 22202-3531
IT IS SO ORDERED.
s/ Thompson M. Dietz
THOMPSON M. DIETZ, Judge
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