Pope v. United States ( 2022 )

In the United States Court of Federal Claims
No. 20-563 C
Filed: October 17, 2022
________________________________________
)
BRIAN EDWARD POPE, )
)
Plaintiff, )
)
v. )
)
THE UNITED STATES, )
)
Defendant. )
________________________________________ )
Raymond J. Toney, Law Office of Raymond J. Toney, Durango, CO, for Plaintiff.
Vijaya Surampudi, Trial Attorney, U.S. Department of Justice, Civil Division, Commercial
Litigation Branch, Washington, D.C., with whom were Brian M. Boynton, Principal Deputy
Assistant Attorney General, Patricia M. McCarthy, Director, and Tara K. Hogan, Assistant
Director, for the Defendant.
OPINION AND ORDER
MEYERS, Judge.
The Navy’s unlawful separation of Brian Edward Pope and its subsequent conduct
towards him as he sought (repeatedly) to correct the Navy’s errors have been unbecoming. Both
times Pope sought a disability retirement, the Navy found that he was not disabled. After Pope
abandoned his disability claim and challenged his separation from the Navy (which the Navy
now concedes was unlawful) and sought the 20-year retirement he would have earned had the
Navy followed the law, the Navy suddenly found Pope disabled. This disability finding is
arbitrary and capricious.
Throughout his 17 years, 9 months, and 28 days on active duty in the Navy, Pope’s
“tireless work ethic” and job performance earned high praise from his superiors right up until the
end of his naval career. Pope has a thyroid condition that impacted his ability to pass the Navy’s
semi-annual physical readiness tests, which he failed three times near the end of his career. But
there is no indication whatsoever that his condition impacted his ability to perform his job duties.
None.
At the time the Navy administratively separated Pope for weight control failure, he had
an appointment scheduled with an endocrinologist to evaluate his thyroid condition. Rather than
wait for Pope to undergo this evaluation, the Navy separated him one week before his
appointment. After his separation, Pope sought to have his record changed to reflect a disability
retirement. The Navy denied his request. Twice.
Pope then retained his current counsel who concluded that Pope was not disabled but that
his separation violated the Navy’s own regulations. Thus, Pope went back to the Navy seeking
to set aside his separation for weight control failure and correct his record to reflect constructive
service from the date of his separation until he reached 20 years of service and then transfer to
the Fleet Reserve.1 The Navy agreed that Pope’s separation was unlawful but denied Pope’s
request to credit him with 20 years of service and grant him transfer to the Fleet Reserve.
Instead, the Navy found Pope disabled based on virtually the same record that had twice before
been insufficient. The only additional evidence—that Pope’s condition appeared not to be
responding to medication six years after the Navy separated him—is patently irrelevant to
whether Pope was fit for continued Naval service in 2014. If there is a fitness for duty
requirement to be a retiree of the Navy, the Government has not pointed this Court to it. For
good measure, the Government now argues that Pope may not challenge the disability
determination because he did not challenge it during the administrative proceedings. But there
was good reason that Pope did not challenge the disability determination below—he explicitly
was not asking for it, so there was no reason for him to address it.
There is not a single reference in the administrative record that even hints at Pope’s
inability to perform his job duties. To the contrary, Pope’s superiors consistently raved about his
performance. And there was no drop in his performance evaluations leading up to or at the time
of his separation. Because the sole criteria for a disability determination in the Navy is the
inability to perform the duties of one’s job because of a disease or injury, the Navy’s disability
determination is not supported by (and in fact is contradicted by) the record and must be set
aside.
Because the record contradicts the finding that Pope was unfit for continued naval service
in 2014, he is entitled to the compensation and retirement he would have earned had he remained
in the Navy until reaching 20 years of active-duty service and transfer to the Fleet Reserve.
Therefore, the Court grants Pope’s cross-motion for judgment on the administrative record and
denies the Government’s motion for judgment on the administrative record.
I. BACKGROUND
Pope enlisted in the Navy on July 23, 1996, and served 17 years, 9 months, and 28 days
as a Cryptologic Technician. ECF No. 19-4 at AR 1011; ECF No. 19-5 at AR 1514. There is
not a job-related blemish in Pope’s personnel file. To the contrary, Pope’s reviewers often gave
high performance evaluations. ECF No. 19-5 at AR 1237, 1244, 1246, 1265, 1331, 1340, 1388,
1390, 1428, 1434, 1436, 1439, 1445, 1454, 1461, 1474. An early review describes Pope as a
“Meticulous Manager” and an “Enthusiastic Team Player” with “boundless professionalism” and
“unlimited potential.” Id. at AR 1237. Similarly, while assigned to the U.S.S. Nimitz, his
1
As explained below, a servicemember in the Navy can transfer to the Fleet Reserve after 20
years of active-duty service. Members of the Fleet Reserve get paid at the same rate as retirees
of other branches. Unlike other branches, members in the Fleet Reserve are subject to recall by
the Navy.
2
commanders described Pope as a “Self-starter [and] inspirational leader” whose “efforts greatly
enhanced the command[’]s mission readiness and battle group integration.” Id. at AR 1244.
And these reviews continued throughout his career. Even in 2013, not long before the Navy
separated him, Pope’s reviewer described him as “[a] motivated self-starter with dedication and
esprit-de-corps,” a “team player,” and “[a]n exceptional professional with a tireless work ethic.”
Id. at AR 1474.
Given these reviews, one might be wondering how the Navy came to separate Pope right
before he reached 18 years of active-duty service. Pope failed the Navy’s physical fitness
assessment (“PFA”) test several times at the end of his career. ECF No. 19-5 at AR 1411. The
Navy requires servicemembers2 to take a semi-annual PFA. ECF No. 22-1 at Pl.’s Add. 29
(OPNAVINST 6110.1J ¶ 5(b)). The PFA has three parts: (1) a medical screening; (2) a body
composition assessment (“BCA”); and (3) a physical readiness test (“PRT”). Id. The BCA is
based on height and weight tables and various measurements, and “[f]ailing the BCA portion of
the PFA is an overall PFA failure.” Id. at Pl’.s Add. 38 (OPNAVINST 6110.1J Encl. 1 ¶ 1(a)).
If the servicemember passes the BCA, he or she moves on to take the PRT. “The PRT is a series
of physical events that assess cardio-respiratory fitness, muscular strength, and endurance.” Id.
at Pl.’s Add. 29 (OPNAVINST 6110.1J ¶ 5(b)). The PRT includes things like curl-ups, push-
ups, and a run. Id. at Pl.’s Add. 47 (OPNAVINST 6110.1J Encl. 1 ¶ 8(g)(5)).
Servicemembers failing a PFA must participate in a fitness enhancement program
(“FEP”). Id. at Pl.’s Add. 29 (OPNAVINST 6110.1J ¶ 5(c)). Multiple times, however, the Navy
failed to provide an FEP to Pope for reasons that are not entirely clear. ECF No. 19-1 at AR
117-18, 299. If a servicemember fails three PFAs in a four-year period, he or she faces
administrative separation from the Navy. ECF No. 22-1 at Pl.’s Add. 29 (OPNAVINST 6110.1J
¶ 5(c)). The Navy does allow for medical waivers of the BCA and PRT portions of the PFA.
But if someone receives two consecutive PFA cycle waivers or three waivers in a four-year
period, the Navy will refer the servicemember to a medical evaluation board. Id. (OPNAVINST
6110.1J ¶ 5(d)).
In late December 2003, the Navy found Pope to have a “thyroid problem affecting
weight.” ECF No. 19-1 at AR 144. Pope received a medical waiver for his PFA in November
2010. ECF No. 19-5 at AR 1247, 1285. In February 2011, a Navy doctor diagnosed Pope with
“sub-clinical hypothyroidism.” ECF No. 19-1 at AR 143. On February 22, 2011, a thyroid
sonogram revealed that Pope had a “mild enlargement of [his] right thyroid [and] [b]ilateral
small thyroid nodules.” Id. at AR 150. In March 2011, Navy doctors determined Pope had
“Hashimoto’s Thyroiditis (Chronic Lymphocytic): Biochemically euthyroid. Likely sub-
clinicaly [sic] hypothyroid.” Id. at AR 372. Further, the doctors concluded that Pope would
“require regular monitoring of TFT’s [Thyroid Function Tests] to watch for development of
overt hypothyroidism.” Id. With this diagnosis, the doctors released Pope without limitations
and follow up as needed. Id. On May 6, 2011, Pope passed his PFA. ECF No. 19-5 at AR
1285.
2
Some regulations refer to a “servicemember” while others to a “service member.” Because
servicemember appears to be the predominate spelling, the Court uses that unless quoting a
regulation that uses service member.
3
In October 2011, Pope failed his BCA. Id.; ECF No. 19-1 at AR 134-35. In January
2012, Pope saw another Navy physician who found that “TSH/T4 [Thyroid Stimulating
Hormone/Thyroxine] has trended marginally” but “I fail to appreciate that he has an occult
thyroid disorder. . . . I’d like to see him back in a month (labs will be called to patient) and
discuss further management. Unfortunately, he does not meet PRT or BCA waiver criteria.”
ECF No. 19-1 at AR 147, 150. Pope passed his PFA in April 2012. ECF No. 19-5 at AR 1285.
In October 2012, Pope was excused from participating in the PFA because of a procedural error.
ECF No. 19-4 at AR 1140.
In May 2013, Pope failed the PFA a second time due to a BCA failure. ECF No. 19-1 at
AR 136-37. In November 2013, Pope again failed his BCA assessment, which was his third
failure in two years. He also sought medical attention for his thyroid condition, but his lab
results did not reflect abnormalities and he was released without limitations and instructed to
“Follow up: as needed with PCM [primary care manager].” Id. at AR 190-95.
Because of his three PFA failures, the Navy began separation proceedings in January
2014. Id. at AR 309. On March 21, 2014, Pope got a referral to a civilian endocrinologist, Dr.
Johnson. Id. at AR 216-18. Yet the separation process continued, and the Navy convened an
administrative separation board that held hearings on March 26, 2014. ECF No. 19-1 at AR 311.
Although Pope had the appointment with Dr. Johnson scheduled, the Navy refused to pause
Pope’s separation proceedings to wait for Dr. Johnson’s opinion regarding Pope’s conditions.
ECF No. 19-2 at AR 420; ECF No. 19-3 at 541, 551.
A few important things happened before Pope got to see Dr. Johnson. First, on May 1,
2014, Pope passed the BCA portion of the PFA. ECF No. 19-1 at AR 141; ECF No. 19-4 at AR
1000, 1002. In fact, Pope lost 11% of his body fat in slightly less than 6 months. ECF No. 19-1
at AR 141; ECF No. 19-4 at AR 1000, 1002. Passing the BCA meant that he could take the
PRT, which he did on May 8, 2014. He passed with flying colors. Of the four components of
the PRT, Pope was “excellent” on three and “outstanding” on the fourth. ECF No. 19-1 at AR
142; ECF No. 19-4 at AR 1000-01. Second, the Navy administrative separation board voted
unanimously to separate Pope for his weight control failures effective May 20, 2014. ECF No.
19-4 at AR 995-998, 1011. The Navy never provided Pope a separation physical to determine
whether he was fit to separate from the Navy.
One week later, Dr. Johnson diagnosed Pope with chronic thyroiditis and prescribed him
medication. ECF No. 19-1 at AR 219-22. During this visit, blood samples were taken and
various tests run. Id. On July 1, 2014, Pope had a follow-up visit with Dr. Johnson, who
observed that Pope “feels well. No neck symptoms. No tremor or palpitations. Weight stable”
and “neck: thyroid is enlarged and without nodules. No adenopathy” and told Pope to “[f]ollow
up in 6 months.” Id. at AR 223-24.
After his separation, the Department of Veteran’s Affairs (“VA”) found Pope to be 100%
disabled due to his hypothyroidism, which became effective May 21, 2014 (the day after his
discharge). Id. at 231. Pope’s VA rating states that “[s]ince there is a likelihood of
improvement, the assigned evaluation is not considered permanent and is subject to a future
review examination.” Id. at AR 232. As part of its evaluation, the VA asked Pope whether his
4
condition was impacting his ability to work. He responded that it was not. ECF No. 19-4 at AR
871.
Since leaving the Navy, Pope continued to receive treatment for his hypothyroidism. He
was taking medication and his doctors concluded that as of October 2014 his thyroid lab results
were “okay.” ECF No. 19-3 at 855. Similarly, a December 8, 2014 doctor’s note states that his
“abn [abnormal] thyroid currently treated with nl [normal] values.” Id. at AR 858.
Pope again sought treatment for his hypothyroidism in 2020.3 Doctor’s notes from this
treatment state that his “symptoms [are] not well controlled with Levothyroxine despite normal
TSH & T4” and “in my professional opinion, these diseases without expert management by an
endocrinologist contributed to his inability to exercise and manage his weight.” ECF No. 19-1 at
AR 80. On March 30, 2020, Chandler Endocrinology, LLC provided its medical opinion that “it
is possible that Mr. Pope’s thyroid disorder contributed to difficulty managing his weight while
he was on active duty in the US Navy.” Id. at AR 75.
II. Procedural Background
Prior to retaining his current counsel, Pope sought to have his retirement changed to a
medical or disability retirement. In November 2014, the Board of Correction of Naval Records
(“BCNR”) denied Pope’s request for a medical retirement, concluding that there was insufficient
evidence to establish an error with his administrative separation. ECF No. 19-3 at AR 479-80.
In 2018, Pope sought a disability retirement and included his entire VA record and disability
rating. ECF No. 19-1 at AR 55. But the BCNR denied Pope’s request a second time. As the
BCNR recognized: “The sole standard to be used in making determinations of physical disability
as a basis for retirement or separation is unfitness to perform the duties of office, grade, rank or
rating because of disease or injury incurred or aggravated while entitled to basic pay.” Id. at AR
56 (quoting SECNAVINST 1850.4e ¶ 3301). On that standard, the BCNR found no evidence
Pope was disabled. Id.
After retaining his current counsel, Pope no longer sought a medical or disability
retirement. ECF No. 19-1 at AR 32-34. The BCNR understood this as well, recognizing that
Pope “raised the issue of lack of fitness for separation but did not specifically request
a . . . medical retirement.” ECF No. 19-1 at AR 4 n.2. The BCNR recognized that Pope’s BCA
failures alone “[were] an insufficient reason for a finding of unfitness.” Id. at AR 4. But the
BCNR denied Pope’s request to void his involuntary separation and grant him constructive
service credit to 20 years of active-duty service and transfer to the Fleet Reserve. Id. Rather, the
BCNR agreed the separation was unlawful and sua sponte changed Pope’s separation to a
medical discharge and placed him on the Permanent Disability Retirement List (“PDRL”) for
hypothyroidism4 with a 100% disability rating. Id. at AR 3-4, 6, 8-9. In June 2020, the BCNR
3
The record does not indicate whether Pope was being treated for his hypothyroidism between
2015 and 2020.
4
There are a few references in the BCNR decision to Pope having hyperthyroidism rather than
hypothyroidism. These appear to be mistakes because the record is clear that Pope had and has
hypothyroidism. The Court reads the BCNR decision as referring to hypothyroidism.
5
found for the first time (six years after discharge) that Pope “was unfit for continued naval
service due to hyp[o]thyroidism at the time of his discharge from the Navy” and denied his
request for constructive service credit sufficient to reach 20 years and qualification for a regular
retirement. Id. at AR 3-4.
Pope’s amended complaint has generated significant briefing. The Government filed a
motion to dismiss pursuant to RCFC 12(b)(1) and 12(b)(6), and for judgment on the
administrative record. ECF No. 19. Here, the Government argued that Pope failed to state a
claim because he was not entitled to reenlist or remain in the Navy, meaning he could not state a
claim for constructive service or transfer to the Fleet Reserve. The Government (wisely)
withdrew this part of its motion when Pope explained that he relied on the safe harbor provision
at 10 U.S.C. § 1176, which requires the Navy to retain sailors that have served 18 years on active
duty but had inadvertently referred to 10 U.S.C. § 1167 in prior briefing (Section 1167 plainly
does not apply). ECF No. 29 at 6 n.1. The Government also sought dismissal of Pope’s
complaint as nonjusticiable because the Government argued Pope was seeking to have the Court
determine Pope was fit for military duty. The Government withdrew this motion when Pope
reiterated that he was not seeking a determination of fitness for continued service, but that he
was unfit to separate. Id. The Government also sought to estop Pope from arguing that he was
fit for duty at the time of separation because he did not argue that before the BCNR. This last
argument was not withdrawn and is addressed below. Pope filed a cross-motion for judgment on
the administrative record. ECF No. 22.
In its reply and response to Pope’s cross-motion for judgment on the administrative
record, the Government filed another motion to dismiss under RCFC 12(b)(1). ECF No. 29.
This second motion to dismiss alleges that Pope’s challenge to the Navy’s separation of him for
weight control failure is moot because the BCNR set aside that separation and changed his
separation to a disability retirement. ECF No. 29. Pope opposed the second RCFC 12(b)(1)
motion. ECF No. 35. The Government filed its reply in support of its motion to dismiss. ECF
No. 40.
III. THE GOVERNMENT’S 12(b)(1) MOTION TO DISMISS
A. Standard of Review.
When deciding a Rule of the Court of Federal Claims (“RCFC”) 12(b)(1) motion to
dismiss for lack of subject matter jurisdiction, this Court must assume that all undisputed facts
alleged in the complaint are true and draw all reasonable inferences in the plaintiff’s favor.
Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011). The plaintiff
bears the burden of establishing subject-matter jurisdiction and must do so by a preponderance of
the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). If
the Court determines that “it lacks jurisdiction over the subject matter, it must dismiss the
claim.” Matthews v. United States, 72 Fed. Cl. 274, 278 (2006); RCFC 12(h)(3).
This Court, like all federal courts, is one of limited jurisdiction and “possess[es] only that
power authorized by [the] Constitution and statute . . . .” Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). The Tucker Act, 28 U.S.C. § 1491(a)(1), gives this Court
authority to adjudicate “any claim against the United States founded either upon the Constitution,
6
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.” This Court’s Tucker Act jurisdiction requires “a separate money-mandating
statute the violation of which supports a claim for damages against the United States.” Holley v.
United States, 124 F.3d 1462, 1465 (Fed. Cir. 1997) (noting that this additional requirement is
based upon sovereign immunity principles). A money-mandating statute is “reasonably
amenable to the reading that it mandates a right of recovery in damages.” Fisher v. United
States, 402 F.3d 1167, 1173-74 (Fed. Cir. 2005) (emphasis in original) (quoting United States v.
White Mountain Apache Tribe, 537 U.S. 465, 472-73 (2003)). The Military Pay Act, 37 U.S.C. §
204, “serves as the money-mandating statute applicable to military personnel claiming damages
and ancillary relief for wrongful discharge.” Holley, 124 F.3d at 1465. The Military Pay Act
affords active-duty members of a uniformed service an entitlement “to the basic pay of the pay
grade to which assigned or distributed, in accordance with their years of service . . . .” 37 U.S.C.
§ 204(a)(1). “If the discharge was wrongful the statutory right to pay continues; this right serves
as the basis for Tucker Act jurisdiction.” Holley, 124 F.3d at 1465. Similarly, qualified retirees
have an entitlement to retirement pay. 10 U.S.C. § 8333 (calculating retirement pay one is
“entitled to”); see also 10 U.S.C. § 1463(a) (providing that the Government “shall” pay retired
pay).
Pope also seeks nonmonetary relief in the form of correction of his service record to state
that he served 20 years and then transferred to the Fleet Reserve. ECF No. 9 ¶ 129. Pursuant to
the Tucker Act, “the court may, as an incident of and collateral to any such [monetary] 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). The Court has satisfied itself
that Pope has met the requirements of establishing jurisdiction and turns to the Government’s
motion to dismiss.
B. Pope’s challenge to the separation for weight control failure is moot.
The Government asserts that “Pope’s claims alleging error in the Navy’s procedures for
administrative separation were mooted by the June 2020 decision by the BCNR.” ECF No. 29 at
7. According to the Government, this is so because the BCNR set aside the Navy’s discharge for
weight control failure and changed it to a disability retirement. This is true and Pope’s complaint
is moot insofar as it seeks to set aside his separation for weight control failure. But the BCNR
did not grant Pope what he asked for—“constructive service credit from the day following his
discharge to the date on which he would have qualified for regular retirement, with backpay and
allowances.” ECF No. 35 at 4. Further, Pope alleges that “the BCNR’s determination that Pope
was medically unfit for duty at the time of his involuntary separation was arbitrary, capricious,
unsupported by substantial evidence, and contrary to law.” ECF No. 9 at 13. Thus, there are live
controversies before the Court and the remainder of Pope’s complaint is not moot. Powell v.
McCormack, 395 U.S. 486, 496 (1969) (“[A] case is moot when the issues presented are no
longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”).
The Government’s RCFC 12(b)(1) motion to dismiss is therefore granted-in-part insofar
as it challenges the separation for weight control failure and denied in all other respects. To be
clear, this ruling does nothing to impact Pope’s ability to argue that the BCNR’s decision to find
7
him disabled and to deny him constructive service credit and transfer to the Fleet Reserve is
arbitrary and capricious. Nor does it prevent him from arguing that the Navy erred in denying
him a physical to determine whether he was fit for separation at the time of his discharge. In
effect, this ruling does nothing more than confirm that the Navy unlawfully separated Pope for
weight control failure in direct violation of Navy regulations and that the Navy already set aside
that unlawful separation.
IV. THE GOVERNMENT’S 12(b)(6) MOTION TO DISMISS
A. Standard of Review.
When evaluating a RCFC 12(b)(6) motion to dismiss for failure to state a claim upon
which relief can be granted, the Court assumes the truth of the complaint’s well-pleaded factual
allegations and draws all reasonable inferences “that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Based on these allegations, the Court
“determine[s] whether they plausibly give rise to an entitlement to relief.” Id. at 679. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. at 678 (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). “Factual allegations must be enough to raise a right to
relief above the speculative level . . . on the assumption that all the allegations in the complaint
are true (even if doubtful in fact) . . . .” Twombly, 550 U.S. at 555 (internal citation omitted).
When making its determination, the Court may look beyond the complaint’s allegations and
consider “matters incorporated by reference or integral to the claim, items subject to judicial
notice, [and] matters of public record.” A&D Auto Sales, Inc. v. United States, 748 F.3d 1142,
1147 (Fed. Cir. 2014) (quoting 5B Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1357 (3d ed. 2004)). Under RCFC 12(b)(6), the Court must dismiss a
complaint that fails to “plausibly allege the required elements” for any claims. Kam-Almaz v.
United States, 682 F.3d 1364, 1369 (Fed. Cir. 2012).
B. Pope’s claim is not barred by judicial estoppel.
The Government argues that “[s]ervice members are judicially estopped from taking
inconsistent positions before the BCNR and the Court.” ECF No. 19 at 17. Judicial estoppel
provides that “‘[w]here a party assumes a certain position in a legal proceeding, and succeeds in
maintaining that position, [it] may not thereafter, simply because [its] interests have changed,
assume a contrary position, especially if it be to the prejudice of the [other] party . . . .’” New
Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689
(1895)). “Judicial estoppel is designed to prevent the perversion of the judicial process and, as
such, is intended to protect the court rather than the litigants.” Data Gen. Corp. v. Johnson, 78
F.3d 1556, 1565 (Fed. Cir. 1996). In essence, judicial estoppel prevents litigants from “playing
fast and loose with the courts.” Wang Lab’ys., Inc. v. Applied Comput. Scis., Inc., 958 F.2d 355,
358 (Fed. Cir. 1992) (quoting Patriot Cinemas, Inc. v. General Cinema Corp., 834 F.2d 208, 212
(1st Cir. 1987)). In the end, judicial estoppel “‘is an equitable doctrine invoked by a court at its
discretion. . . .’” New Hampshire, 532 U.S. at 750 (emphasis added) (quoting Russell v. Rolfs,
893 F.2d 1033, 1037 (9th Cir. 1990)). While there is no exhaustive set of criteria for judicial
estoppel, there are several factors that generally inform the Court’s analysis, including whether:
(1) “a party’s later position [is] ‘clearly inconsistent’ with its earlier position”; (2) the party
8
“succeeded in persuading a court to accept that party’s earlier position, so that judicial
acceptance of an inconsistent position in a later proceeding would create ‘the perception that
either the first or the second court was misled’”; and (3) “whether the party seeking to assert an
inconsistent position would derive an unfair advantage or impose an unfair detriment on the
opposing party if not estopped.” Id. at 750-51.
The Government moves to estop Pope from arguing that he was “fit for duty at the time
of separation.” ECF No. 19 at 17 (emphasis added). According to the Government, “in Mr.
Pope’s numerous supplemental petitions to the BCNR, he provided ample evidence that his
alleged hyp[o]thyroidism directly caused his inability to maintain weight standards.” Id. at 18.
Notice the sleight of the pen here. The Government is not stating that Pope argued to the BCNR
that he was unfit for duty. Instead, the Government asserts that he “provided ample evidence”
that he had a medical condition that caused his inability to maintain weight standards. Putting
aside that Pope was arguing he was unfit to separate, the Government’s argument makes no
sense. Pope did argue that he had a medical condition that impacted his ability to maintain
weight standards, and the BCNR agreed. But a medical condition that impacts one’s ability to
maintain weight standards does not equal a disability; it is the precise circumstance that the
Navy’s regulations made it unlawful for the Navy to separate Pope. That does not mean Pope
was disabled. To put it simply, nothing that Pope argued to the BCNR in his petition at issue
here implicates estoppel. Nor do his prior arguments (that he since abandoned) seeking a
medical or disability retirement.
The Government, however, contends, without citation to anything in the record, that Pope
“emphasized . . . that he was unfit for duty.” ECF No. 19 at 18 . Perhaps the reason the
Government fails to cite anything in support of its argument is because it flies in the face of the
record. Pope simply did not argue that he was unfit for continued naval service—i.e., disabled.
ECF No. 9 ¶¶ 57-94. Pope argued to the BCNR that he was unlawfully denied a mandatory
physical evaluation upon separation that would have found him “unfit to separate” because of his
thyroid condition, not that he was unfit for continued naval service. ECF No. 9 ¶ 104.
The Government wholly misses the mark because it tries to use Pope’s argument that he
was unfit to separate as evidence that he argued he was unfit for continued naval service. Under
Navy regulation, “[t]he sole standard to be used in making determinations of physical disability
as a basis for retirement or separation is unfitness to perform the duties of office, grade, rank or
rating because of disease or injury incurred or aggravated while entitled to basic pay.” ECF No.
22-3 at Pl.’s Add. 147(SECNAVINST 1850.4E ¶ 3301) (emphasis added). In other words, the
analysis is whether a servicemember could perform his or her job duties. Whether one is unfit to
separate, however, is determined by a physical examination to determine “if [a servicemember]
need[s] further treatment or evaluations for any medical concerns.” ECF No. 22 at 25-26
(quoting https://www.health.mil/Military-Health-Topics/Access-Cost-Quality-and-
Safety/Disability-Evaluation/Separation-Health-Assessment5). The Government’s confusion
about the difference between fitness to separate and fitness for continued naval service is not
sufficient to dismiss any part of Pope’s complaint.
5
Health.mil is the official website of the Military Health System.
9
The Government also fails the second estoppel factor—Pope failed on the merits below
when he previously sought medical or disability retirement before explicitly abandoning such
claims. While Pope twice sought to have the BCNR convert his discharge to either a medical or
disability retirement, he was not successful either time. ECF No. 19-3 at AR 462-65, 479-80.
Judicial estoppel does not preclude Pope’s arguments here that he was unfit for separation but fit
for continued naval service because Pope failed to “succeed[] in maintaining that position” that
he was disabled when he brought that to the BCNR twice before abandoning it. New Hampshire,
532 U.S. at 749 (quoting Davis, 156 U.S. at 689). Again, these were not the arguments before
the BCNR in the petition at issue here, so they are further attenuated from what might support
judicial estoppel.
And neither the BCNR nor this Court have been misled by Pope’s argument. The BCNR
explicitly understood exactly what Pope was arguing. According to the BCNR, Pope “raised the
issue of lack of fitness for separation but did not specifically request a determination of unfitness
to perform the duties of office, grade, rank or rating because of disease or injury incurred or
aggravated while entitled to basic pay, and a subsequent medical retirement.” ECF No. 19-1 at
AR 4 n.2. In plain terms, Pope argued that he was unfit to separate, not that he was disabled.
The Court, like the BCNR, is aware of the difference between Pope’s fitness to perform his
duties and Pope’s fitness to separate. Neither has been misled. The fact that the Government’s
motion is confused by the two terms is not sufficient to estop Pope from making his arguments.
Finally, the Government’s reliance on Metz v. United States, 466 F.3d 991 (Fed. Cir.
2006), is misplaced. ECF No. 29 at 13. Under Metz, “‘[s]imple fairness to those who are
engaged in the tasks of administration, and to litigants, requires as a general rule that courts
should not topple over administrative decisions unless the administrative body not only has erred
but has erred against objection made at the time appropriate under its practice.’” 466 F.3d at 999
(quoting United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952)). Of course,
Metz is predicated on an issue being before the BCNR. But here Pope was not seeking the
disability retirement the BCNR imposed and there is no indication that Pope was on notice the
BCNR intended to grant relief he did not seek. ECF No. 19-1 at AR 4 n.2, 8; ECF No. 22 at 24.
Pope received no “unfair advantage” before the BCNR; rather, he argued that he was “unfit for
separation.” Therefore, there is no unfairness to the Government in allowing Pope to continue to
argue to this Court precisely what he argued to the BCNR.
The Court denies the Government’s motion to dismiss under RCFC 12(b)(6).
V. JUDGMENT ON THE ADMINISTRATIVE RECORD
A. Standard of review
The Court reviews the BCNR’s June 17, 2020, decision “to determine whether it is
arbitrary, capricious, unsupported by substantial evidence, or contrary to law.” Lewis v. United
States, 458 F.3d 1372, 1376 (Fed. Cir. 2006) (citing Martinez, 333 F.3d at 1314); Heisig v.
United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983) (citations omitted); see also Barnes v.
United States, 473 F.3d 1356, 1361 (Fed. Cir. 2007) (“We apply the same standard of review as
the United States Court of Federal Claims, which means ‘we will not disturb the decision of the
corrections board unless it is arbitrary, capricious, contrary to law, or unsupported by substantial
10
evidence.’”) (quoting Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005)). The
Court may set aside the BCNR’s decision if it “‘offered an explanation for its decision that runs
counter to the evidence before the agency, or the decision is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise.’” Filo v. United States, 154
Fed. Cl. 17, 22 (2021) (quoting Ala. Aircraft Indus., Inc. v. United States, 586 F.3d 1372, 1375
(Fed. Cir. 2009)).
“Although courts afford great deference to the decisions of boards for the correction of
military records, that deference is not absolute. Correction boards are obligated to ‘examine
relevant data and articulate a satisfactory explanation for their decisions.’” Rominger v. United
States, 72 Fed. Cl. 268, 273 (2006) (citation omitted). To prevail, Pope “must show by ‘cogent
and clearly convincing evidence’ that ‘the action of the military is arbitrary, capricious,
unsupported by substantial evidence or contrary to applicable statutes or regulations.’” Johnson
v. United States, 97 Fed. Cl. 267, 270 (2011) (citing Stine v. United States, 92 Fed. Cl. 776, 791
(2010)), aff’d, 467 F. App’x 883 (Fed. Cir. 2012).
Pursuant to RCFC 52.1, a motion for judgment upon the administrative record requires
the Court to determine whether “the plaintiff has met [his] burden of proof to show that the
decision was not in accordance with law.” Melendez Camilo v. United States, 89 Fed. Cl. 671,
677 (2009), aff’d, 642 F.3d 1040 (Fed. Cir. 2011). The Court must complete a “trial on a paper
record, allowing fact-finding by the trial court.” Bannum, Inc. v. United States, 404 F.3d 1346,
1356 (Fed. Cir. 2005).
B. BCNR’s June 17, 2020 decision is arbitrary, capricious, and unsupported by
substantial evidence.
The Government asserts that “[t]he record demonstrates that Mr. Pope cannot meet the
considerable burden” to warrant a judgment upon the administrative record in his favor. ECF
No. 19 at 20. Nonsense. Pope carries his burden of proving his entitlement to the relief he seeks
like he passed his final PRT right before the Navy unlawfully kicked him out—by a wide
margin.
According to the BCNR, Pope’s “medical conditions, had they been vetted through the
PEB [Physical Evaluation Board], . . . would have qualified him for discharge due to unfitness to
perform the duties of his office, grade, rank or rating because of a disease or injury incurred or
aggravated while entitled to basic pay, as outlined in SECNAVINST 1850.4 series.” ECF No. 19-
1 at AR 8. The BCNR reached this conclusion based on its consideration of Pope’s medical
history going back to 2003, his VA disability rating, and treatment records from 2020. Id. at AR
4-5. Conspicuously absent from the BCNR’s evaluation is any indication that Pope could not
actually perform his duties as a cryptologic technician, which is no slight omission because
“[t]he sole standard to be used in making determinations of physical disability as a basis for
retirement or separation is unfitness to perform the duties of office, grade, rank or rating because
of disease or injury incurred or aggravated while entitled to basic pay.” ECF No. 22-3 at Pl.’s
Add. 147 (SECNAVINST 1850.4E § 3301) (emphasis added). It is not enough to have a disease
or injury. Rather, the disease or injury must “materially interfere with the member’s ability to
perform reasonably the duties of his or her office, grade, rank, or rating/MOS on active duty.”
ECF No. 22-3 at Pl.’s Add.140 (SECNAVINST 1850.4E § 3202(c)) (emphasis in original).
11
The central question, therefore, is whether Pope was able to perform his duties as a
cryptologic technician when the Navy discharged him on May 20, 2014. The analysis begins
with a review with Pope’s performance leading up to his separation because “[i]f the evidence
establishes that the service member adequately performed his or her duties until the time the
service member was referred for physical evaluation, the member may be considered Fit even
though medical evidence indicates questionable physical ability to continue to perform duty.”
ECF No. 22-3 at Pl.’s Add. 148 (SECNAVINST 1850.4E ¶ 3303(c)); Williams v. United States,
No. 02-585C, 2006 WL 5629680, at *7 (Fed. Cl. June 2, 2006) (“Whether or not a member has a
listed disability, the essential inquiry is always whether the symptoms prevented the member
from satisfactorily performing his duties.”); see also Joslyn v. United States, 110 Fed. Cl. 372,
393 (2013) (rejecting a disability claim because of satisfactory performance reviews despite
injuries). Other than the weight control failures, Pope’s evaluations include only “early
promote,” “must promote,” and “promotable” ratings. ECF No. 19-5 at AR 1237, 1244, 1246,
1265, 1331, 1340, 1388, 1390, 1428, 1434, 1436, 1439, 1445, 1454, 1461, 1474. Pope’s
penultimate evaluation on November 12, 2013, is typical:
A motivated self-starter with dedication and esprit-de-corps.
- SUBJECT MATTER EXPERT. Efficiently managed 142
COMSEC accounts worldwide, correcting 14,377 inventory
discrepancies and clearing 523 errors. Provided prompt
completion of semi-annual and change of custodian inventory
reports.
- TEAM PLAYER. Selected for additional responsibilities
as and [sic] Electronic Key Management System (EKMS)
Registration Authority (RA). Completed one COMSEC account
closure and inactivated two accounts.
- COMMUNITY ORIENTED. Dedicated eight off-duty
hours volunteering for the Arizona First Lego League 2012.
Judged students’ abilities to improve a process and created a
wholesome product specifically designed to assist elderly citizens.
An exceptional professional with a tireless work ethic.
Id. at AR 1474 (emphasis added). Pope’s final evaluation on June 5, 2014, found
all aspects of Pope’s work either met or exceeded standards, except for the weight
control failures. Id. at AR 1461.
In fact, the only blemishes on Pope’s evaluations are the BCA failures. Id. at AR 1460-
61, 1473-74. Pope did fail the BCA again between his November 2013 evaluation and his final
evaluation. This third failure supports the Navy’s abandoned (and unlawful) rationale for Pope’s
discharge for weight control failure, not an inability to perform his duties. But being assigned
additional duties, “efficiently” performing large assignments, having a “tireless work ethic,” and
volunteering in the community are not descriptors of someone unable to perform the duties of his
office, grade, rank, or rating. And Pope passed his final PFA (the BCA and PRT) with flying
colors. Of the four components of the PRT, Pope earned an “excellent” rating for three and an
12
“outstanding” rating for the fourth. ECF No. 19-1 at AR 142; ECF No. 19-4 at AR 1000-01.
Those are not the reviews or PFA scores of a disabled cryptologic technician.
The Government pushes back on the relevance of Pope’s ability to perform as a
cryptologic technician, calling Pope’s argument that he was ably performing his duties a red
herring. ECF No. 29 at 17. According to the Government, Pope’s inability to pass the physical
fitness requirements is a condition of his continued naval service and should be the focus of the
inquiry. It is somewhat difficult to take this argument seriously. It is true that servicemembers
must meet physical fitness requirements to remain in the Navy—unless they have a medical
condition that materially impacts their ability to do so. ECF No. 22-1 at Pl.’s Add. 18 (DoDI
1332.14, ¶ 16(a)(1) to (2)). Pope does. That is the entire reason that Pope’s separation for
weight control failure was unlawful. The BCNR conceded this when it set aside Pope’s unlawful
separation for weight control failure. And this is the entire basis of the Government’s motion to
dismiss Pope’s challenge to the illegal separation. Arguing that weight control failures justify a
disability retirement also is frivolous because the “[i]nability to take/pass the PRT/PFT will not
be the sole basis for a finding of Unfit to continue naval service.” ECF No. 22-4 at Pl.’s Add.
151 (SECNAVINST 1850.4E § 3307) (emphasis added). The Government’s argument is a
transparent attempt to make an end run around DoDI 1332.14 and ignore SECNAVINST
1850.4E § 3307, which this Court will not allow. The DoD and Navy wrote these rules and
forces servicemembers to abide by them, and the Court will ensure that the Navy does so as well.
Before turning to whether there was evidence of disability beyond the BCA failures, the
Court must respond to an argument the Government made during oral argument regarding
SECNAVINST 1850.4E § 3307. During argument, the Government asserted that the inability to
pass the PFA could be the sole basis for finding a servicemember disabled because the regulatory
section’s title is “Standards And Criteria Not Normally To Be Used As The Sole Basis For
Determining Fitness Or Unfitness.” ECF No. 44 at 62:9-63:18; see also ECF No. 22-4 at Pl.’s
Add. 151 (SECNAVINST 1850.4E § 3307). Thus, the Government contended that the Court
should remand this case to the BCNR to allow it to explain why the inability to pass the PFA was
sufficient to find Pope disabled in this case. There are many problems with this ill-conceived
argument, but the Court need only recognize two.
First, it is a basic tenant of interpretation that a section title cannot change the meaning of
clear text. As the Supreme Court explained, “the wise rule [is] that the title of a statute and the
heading of a section cannot limit the plain meaning of the text . . . . For interpretive purposes,
they are of use only when they shed light on some ambiguous word or phrase . . . . But they
cannot undo or limit that which the text makes plain.” Bhd. of R.R. Trainmen v. Baltimore &
Ohio R. Co., 331 U.S. 519, 528-29 (1947) (citations omitted). And here the plain text of the
regulation states that the “[i]nability to take/pass the PRT/PFT will not be the sole basis for a
finding of Unfit to continue naval service.” ECF No. 22-4 at Pl.’s Add. 151 (SECNAVINST
1850.4E § 3307) (emphasis added). There is simply no ambiguity in the operative provision that
the section title can clarify.
Second, the Government’s argument contradicts the BCNR’s own decision that the
Government purports to defend. The BCNR concluded that “[p]ursuant to SECNAVINST
1850.4 series, para. 3307, the inability to take or pass the PRT/PFT will not be the sole basis for
a finding of unfit to continue naval service.” ECF No. 19-1 at AR 4. In the plainest of terms, the
BCNR simply did not find the BCA failures sufficient to find Pope disabled; it explicitly
13
recognized that Pope’s failures were not sufficient to find him disabled on their own. It would be
nonsensical to remand the case to the BCNR for it explain why it did something that it expressly
did not (and recognized it could not) do—i.e., find that the inability to pass the PFA was
sufficient alone to find Pope disabled. The Government’s oral motion to remand is denied.
If Pope had obtained medical waivers for two consecutive PFA tests or three waivers in a
four-year period, there would have been a referral to a MEB,6 which would have provided a
“prognosis for return to full duty.” ECF No. 22-1 at Pl.’s Add. 29 (OPNAVINST 6110.1J
¶ 5(d)). But Pope only obtained one waiver in the four years leading up to his separation. ECF
No. 19-4 at AR 1000. The fact that he may have chosen not to seek additional waivers because
he knew it could lead to a disability referral is irrelevant. Not to mention that in January 2012 a
Navy doctor specifically concluded that Pope’s thyroid condition did not qualify for a PFA
waiver. ECF No. 19-1 at AR 147, 150. In any event, the regulations make clear that obtaining
waivers can lead to a referral, not having a condition that could justify a waiver. In short, the
Navy’s unambiguous regulations make clear that nothing about Pope’s physical fitness testing
justifies a disability retirement.
The question, therefore, is whether there is anything else in this record that supports the
BCNR’s finding that there is something more than the PFA failures showing Pope was disabled.
In addition to Pope’s PFA failures, the BCNR found Pope disabled based on “the totality of the
available medical . . . diagnoses and treatment . . . .” ECF No. 19-1 at AR 4. According to the
BCNR, the additional facts showing Pope’s disability are: (1) Pope’s diagnosed thyroid
condition dating back to 2003; (2) the VA’s 100% disability rating effective the day after his
separation; and (3) the 2020 doctor’s note stating that Pope’s condition was not responding well
to medication. Id. Under governing regulations, none of these facts support the BCNR’s
decision.
First, the fact that Pope had a thyroid condition dating back to 2003 is uncontroverted.
But it does nothing to show that he was disabled. Nor does the BCNR contend that Pope was
disabled back to 2003 (such a contention would be frivolous). The only thing the diagnoses
show is that Pope had a thyroid condition, which all agree impacted his ability to manage his
weight and pass the PFA. But for a thyroid condition to be a disability, it must have “severe
symptoms not controlled by accepted therapy.” ECF No. 22-4 at Pl.’s Add. 192 (SECNAVINST
1850.4E § 8011(f)). Further, the “mere presence of disease” does not justify a referral to a PEB,
much less a disability finding. ECF No. 22-4 at Pl.’s Add. 140 (SECNAVINST 1850.4E
§ 3202(c)). As should be clear by now, a disability must “materially interfere with the member’s
ability to perform reasonably the duties of his or her office, grade, rank or rating/MOS on active
duty.” Id. (emphasis in original). Here the record is clear that Pope’s thyroid condition did not
impact his job performance at all, a fact the Government does not contest. Nor did Pope’s
6
A Medical Evaluation Board is: “A body of physicians (or others specifically designated by
CHBUMED) convened in accordance with reference (f), Chapter 18, to identify members whose
physical and/or mental qualification to continue on full duty is in doubt or whose physical and/or
mental limitations preclude their return to full duty within a reasonable period of time. They are
convened to evaluate and report on the diagnosis; prognosis for return to full duty; plan for
further treatment, rehabilitation, or convalescence; estimate of the length of further disability;
and medical recommendation for disposition of such members.” SECNAVINST 1850.4E
¶ 2043.
14
condition prevent him from passing the PFA in the weeks before his unlawful separation, or even
qualify him for a PFA waiver as of 2012, ECF No. 19-1 at AR 147, 150. Of course, if Pope’s
thyroid condition did not even qualify for a PFA waiver, it is inconceivable that it qualified as a
disability.
Second, the BCNR has long rejected the notion that a VA disability rating is probative of
whether someone is disabled under DoD regulations, which require the inability to reasonably
perform his or her job duties. ECF No. 22 at 31 (collecting cases). In each of these cases Pope
relies upon, the BCNR rejected disability claims based on VA ratings because the VA issues its
ratings without regard to one’s ability to perform his or her military duties, which is the sole
criteria for a DoD disability rating. And the BCNR has rejected hypothyroidism as a disability
despite a VA rating because the applicant failed to demonstrate that he could not reasonably
perform his duties at the time of his discharge. Id. (quoting BCNR No. 09726-04 (Oct. 22,
2008)). This Court, too, has regularly found that VA and DoD disability determinations are
distinct because they apply different standards—specifically that the VA does not determine
fitness at the time of separation. Id. at 32 (citing Myers v. United States, 50 Fed. Cl. 674, 693
(2001)); see also id. at 32-33 (collecting cases). As this Court has held, “the Navy may—and
routinely does—find that the DVA’s higher rating is not probative due to that agency’s distinct
rating standard, namely the DVA’s focus on the effect of the disability on the veteran’s civilian
employment.” Stine, 92 Fed. Cl. at 796.
It is undeniably true that the DoD and VA apply different standards to their disability
determinations, but this does not resolve the matter. According to the Government, the DoD is
not bound by a VA determination but is free to rely on it if the DoD so chooses. ECF No. 29 at
18 (citing Stine, 92 Fed. Cl. at 795). This may be true, but the “sole” standard on which a DoD
disability determination must rest is the inability to reasonably perform one’s military job duties.
Thus, according to the Navy’s own regulations, “[u]nlike the DVA, the military departments
must first determine whether a service member is Fit to reasonably perform the duties of the
member’s office, grade, rank, or rating.” ECF No. 22-4 at Pl.’s Add. 155 (SECNAVINST
1850.4E ¶ 3802(a)) (emphasis added). Only after this determination does the DoD apply the VA
disability rating. Because the record shows that Pope was performing his duties, and doing so at
a high level, there is no basis for the BCNR’s reliance on the VA’s disability rating to establish
that Pope was disabled at the time of his separation.
Third, the 2020 doctor’s evaluation notes that state Pope’s thyroid condition was not
responding well to medication are not probative of his condition in 2014. The Court looks
closely here because this appears to be the only information that was not before the BCNR when
it denied Pope’s disability retirement claims twice before. If there is evidence of a disability
sufficient to reverse those two prior findings, the Court assumes it would be here because
without something more than what was before the BCNR when it twice rejected that Pope was
disabled, the BNCR’s change would be arbitrary and capricious.
According to the Government, Pope’s “post-discharge history is particularly compelling.”
ECF No. 19 at 25. “Compelling of what?” one might ask. The only question relevant here is
whether Pope was unable to perform his duties (was disabled pursuant to DoD standards) at the
time of his separation from the Navy in 2014, not in 2020. There is absolutely no requirement
that Pope be physically fit to be a retiree of the Navy.
15
SECNAVINST 1850.4E provides that for hypothyroidism to be a qualifying disability, it
must manifest “[s]evere symptoms not controlled by accepted therapy.” ECF No. 22-4 at Pl.’s
Add. 192 (SECNAVINST 1850.4E § 8011(f)). Putting aside the lack of “severe symptoms”
anywhere in the record and Pope’s ability to perform his duties at a high level (which are
sufficient alone to make the BCNR’s disability finding arbitrary and capricious), it also appears
that Pope’s condition was responding to treatment in 2014. Dr. Johnson evaluated Pope on May
27, 2014 (one week after Pope’s discharge). ECF No. 19-1 at AR 220-24. Pope scheduled a
follow-up medical assessment with Dr. Johnson for one month later. Id. at AR 221. On June 26,
2014, Dr. Johnson prescribed Pope medication for his hypothyroidism. Id. at AR 219. At
Pope’s one month follow-up with Dr. Johnson on July 1, 2014, his medical record states “[Pope]
taking levo-thyroxine, 50 mcg daily. He feels well. No neck symptoms. No tremor or
palpitations. Weight stable.” Id. at AR 223. Pope scheduled a follow-up appointment for six
months later. Id. at AR 224. And Pope’s blood work was “okay” in October 2014. ECF No. 19-
3 at AR 855. Similarly, a December 8, 2014 doctor’s note states that his “abn [abnormal] thyroid
currently treated with nl [normal] values.” Id. at AR 858 (emphasis added).
Of course, the BCNR twice denied Pope’s claims that he was entitled to a disability
retirement based on materially the same record as before the Court now. There was good reason
for the BCNR’s prior denials—the record is devoid of any evidence whatsoever that Pope was
unable to perform his job duties. To the contrary, even when the Navy was unlawfully
separating Pope, his superiors continued to give him strong reviews. The BCNR’s decision
simply asserts Pope would have been disabled without any reference to his inability to perform
his job duties or citation to the record. It also bears repeating that at the time of his separation
Pope could take and pass the PFA—he did so with three scores of “excellent” and one of
“outstanding.” ECF No. 19-1 at AR 142; ECF No. 19-4 at 1000-01. In other words, at the time
of his separation, Pope’s thyroid condition did not prevent him from taking and passing the PFA,
much less impact his ability to perform as a cryptologic technician.7
In short, the conclusion that Pope was disabled at the time of his separation is wholly
unsupportable with this record.8
C. The Navy’s safe harbor
For Pope to recover the back pay and 20-year retirement he seeks, Pope would need to
have reenlisted once more because his final enlistment would have carried Pope past 18 years,
but not all the way to 20. Because no sailor has a legal right to reenlist in the Navy absent an
7
Even if there were any doubt regarding Pope’s fitness for duty, the “[b]enefit of unresolved
doubt shall be resolved in favor of the fitness of the service member under the rebuttable
presumption that the member desires to be found Fit.” ECF No. 22-4 at Pl.’s Add. 150
(SECNAVINST 1850.4E ¶ 3306(a)). Given Pope’s extended litigation challenging the unfitness
determination, the “presumption that [he] desires to be found Fit” is on solid ground.
8
Because the Court concludes that the BCNR’s disability determination is contradicted by the
record, it is not necessary to reach Pope’s further arguments regarding the Navy’s denial of a
separation physical, the Navy’s failure to provide a fitness enhancement program for Pope, and
the Navy’s refusal to suspend the administrative separation proceedings to allow Pope to see Dr.
Johnson before separation.
16
express statute or regulation granting a right to reenlist, the Court must now determine whether
any such statute applies to Pope. Dodson v. United States, 988 F.2d 1199, 1203-04 (Fed. Cir.
1993) (citations omitted).
Had Pope served just over two more months (approximately 64 more days), 10 U.S.C.
§ 1176 would grant him the right to reenlist. 10 U.S.C. § 1176(a) provides that if an enlisted
servicemember “is within two years of . . . qualifying for transfer to the Fleet Reserve . . . [he]
shall be retained on active duty until the member is qualified for . . . transfer to the Fleet Reserve
. . . .” 10 U.S.C. § 1176(a) (emphasis added). In the Department of the Navy, transfer to the
Fleet Reserve means the member is paid the same retirement as retirees of other service branches
but is subject to recall. An enlisted member may transfer to the Fleet Reserve after 20 years of
active-duty service. 10 U.S.C. § 8330(b). In plain English, this means that if Pope reached 18
years of active-duty service, the Navy had no choice but to reenlist and retain him on active duty
until he reached 20 years of active-duty service unless some other provision allowed for his
separation. The Navy does not suggest that any other provision would have allowed for Pope’s
separation. Given his clean record and strong performance reviews, the Court finds no basis to
conclude that Pope would have been involuntarily separated from the Navy after he reached 18
years of service but before he completed 20 years of service.
This Court has addressed claims like Pope’s before. In Carmichael v. United States, 66
Fed. Cl. 115 (2005), the plaintiff sought constructive service and full retirement under 10 U.S.C.
§ 1176. The Carmichael Court concluded that “[i]f the circumstances described in 10 U.S.C.
§ 1176(a) arose, plaintiff nevertheless would have been ‘retained on active duty until [he was]
qualified for retirement or transfer[red] to the Fleet Reserve or Fleet Marine Corps Reserve.’” 66
Fed. Cl. at 128 (second and third alterations in original) (quoting 10 U.S.C. § 1176(a)). Because
Carmichael had “provided exemplary service to the Navy” for 16 years, the Court found that his
trajectory to 20 years was clear. Id. This is even clearer for Pope who also provided exemplary
service to the Navy and needed to serve a mere two more months to reach the safe harbor.
Because Pope’s enlistment contract’s end date was within two years of him reaching 20 years of
active-duty service, absent the unlawful discharge he would have had “a firm right to continued
service under 10 U.S.C. § 1176(a).” Strickland v. United States, 69 Fed. Cl. 684, 712 n.17
(2006).
Because the BCNR’s decision to change Pope’s separation to a disability retirement was
arbitrary and capricious, it denied him a statutory right to reenlist and continue military service
until completing 20 years of service at which time he would have been able to transfer to the
Fleet Reserve. “Because plaintiff was on track to complete twenty years of service . . . his
recovery necessarily encompasses back pay as well as benefits, . . . which would have vested at
any point prior to or on [reaching twenty years of service].” Carmichael, 66 Fed. Cl. at 128; see
also Strickland v. United States, 73 Fed. Cl. 631, 632-33 (2006) (ordering correction of military
record and transfer to Fleet Reserve).
D. Relief
But for the Navy’s unlawful separation, Pope would have continued to serve admirably
on active duty until reaching 20 years of active-duty service. He is thus entitled to the
constructive service from the date of his unlawful separation until the date on which he would
17
have reached 20 years of active-duty service, transfer to the Fleet Reserve, and the retirement
pay from the date of transfer to the Fleet Reserve forward. The Court is aware that there will be
offsets for amounts DoD paid to Pope in DoD disability payments since his unlawful separation
that will need to be accounted for in a final judgment. There is also an issue of VA disability
payments that DoD is also trying to recoup from Pope as well. To sort out all the pay that Pope
is entitled to and the offsets he will be liable for under this Order, the Court will refrain from
entering final judgment so that it may remand this case to the Department of Defense to calculate
the proper damages and offsets, which the Court will discuss with the parties during a
forthcoming status conference.
For the avoidance of doubt, the Court will be entering a final monetary judgment for
Pope following remand and incident to that monetary judgment will order that the Navy correct
his record: (1) by setting aside Pope’s unlawful separation; (2) by setting aside Pope’s disability
retirement; (3) to reflect constructive service to the date Pope would have reached 20 years of
active-duty service; and (4) transferring Pope to the Fleet Reserve effective the day following his
reaching 20 years of active-duty service. See 28 U.S.C. § 1491(a)(2).
VI. CONCLUSION
For the reasons stated above, the Court:
1. Grants-in-part the Government’s second RCFC 12(b)(1) motion to dismiss Pope’s
complaint as moot, ECF No. 29, insofar as it seeks to dismiss Pope’s challenge to his separation
for weight control failures that the BCNR set aside and denies the motion insofar as it seeks to
dismiss anything more;
2. Denies the Government’s RCFC 12(b)(6) motion to dismiss and motion for judgment
on the administrative record, ECF No. 19; and
3. Grants Pope’s cross-motion for judgment on the administrative record, ECF No. 22.
The Court defer entering judgment so that this action can be remanded to the appropriate agency
within the DoD to calculate damages and offsets in accordance with this opinion.
IT IS SO ORDERED.
s/ Edward H. Meyers
Edward H. Meyers
Judge
18