Faerber v. United States

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
______________________________________
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PETER C. FAERBER, )
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Plaintiff, ) No. 20-509C
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v. ) Filed: November 1, 2021
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THE UNITED STATES, )
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Defendant. )
______________________________________ )
OPINION AND ORDER
Plaintiff LtCol Peter C. Faerber alleges that the United States Marine Corps (“USMC”)
improperly separated him from active duty while he was in a medical hold status due to injuries
sustained in the line of duty. Before the Court is Plaintiff’s Motion for Judgment on the
Administrative Record and Defendant’s Combined Motion to Dismiss and Cross-Motion for
Judgment on the Administrative Record. For the foregoing reasons, the Court GRANTS
Plaintiff’s Motion and DENIES Defendant’s combined Motion.
BACKGROUND
I. Findings of Fact
Plaintiff is a lieutenant colonel in the United States Marine Corps Reserve (“USMCR”).
Commissioned in the USMCR on December 20, 1992, Plaintiff initially served as a pilot on active
duty from 1993 until December 30, 2002. See Admin. R. (“AR”) at 274–75, 282, 376, ECF No.
6. After completing his initial active duty commitment, Plaintiff attended law school, graduating
in 2006. Id. at 273, 274. In 2007, the USMCR placed Plaintiff on active duty while he attended
the Naval Justice School in Newport, Rhode Island. Id. at 274. Plaintiff completed Naval Justice
School and was designated a Judge Advocate in August 2007. Id. at 274, 350. Plaintiff then
accepted a series of mobilization orders that placed him on active duty assignments through 2014,
serving for several years during that time as a Disability Evaluation System (“DES”) Attorney and
the Officer in Charge of the USMC Wounded Warrior Battalion-East assigned to Detachment
Landstuhl Regional Medical Center, Wounded Warrior Regiment, Headquarters United States
Marine Corps (“HQMC”). Id. at 274, 360.
In August 2015, Plaintiff engaged in discussions with HQMC personnel regarding new
mobilization orders to fill the USMC’s need for a DES Attorney. Id. at 6. Part of those discussions
included consideration of the potential need for Plaintiff to execute 1095 Rule, High Active Duty
Time (“HADT”), and sanctuary waivers. 1 Id. According to Plaintiff, he had previously executed
a HADT waiver, and he and an HQMC representative agreed that neither a 1095 Rule waiver nor
sanctuary waiver was necessary for the issuance of new orders. Id. As a result, in September
2015, HQMC issued Plaintiff mobilization orders pursuant to 10 U.S.C. § 12301(d) without asking
him to submit any additional waivers. Id. at 428–34.
In accordance with those orders, Plaintiff was ordered to a period of active duty totaling
183 days, from October 1, 2015 to March 31, 2016, in support of Operation Freedom Sentinel. Id.
at 428. The orders directed Plaintiff to report to Camp Pendleton, California, where he would be
permanently stationed as a DES Attorney. Id. HQMC required Plaintiff to certify his acceptance
of the orders. Id. at 433–34. As part of the requisite certification, Plaintiff acknowledged that he
“may become eligible for sanctuary zone protection” under 10 U.S.C. § 12686(a). Id. at 433.
1 Although not at issue in Plaintiff’s case, the “1095 Rule” pertains to reservists who serve
more than 1,095 days on active duty in a 1,460-day period. See Active Duty for Operational
Support (ADOS) in Support of the Total Force, Marine Corps Order (“MCO”) 1001.59A, ch. 2, ¶
5.e. (2011). HADT refers to a period of total active duty time exceeding 16 years. See Policy and
Procedures for Reserve Component (RC) Member Service Beyond 16 Years of Active Duty
Service, MCO 1800.11, ch. 1, ¶ 1.b. (2009).
2
In December 2015, Plaintiff was placed on light duty after injuring his lower back and
knees while preparing for a USMC Combat Fitness Test. Id. at 62–75. Upon further evaluation,
his USMC physician diagnosed Plaintiff with Lumbar Degenerative Disc Disease, prescribed
physical therapy and chiropractic treatment, and placed him on limited duty for an initial period of
six months starting on March 21, 2016. Id. at 88–92, 113. To facilitate his ongoing medical
treatment, the Reserve Medical Entitlements Determination Section (hereinafter Benefits Issuing
Authority (“BIA”)) approved Plaintiff’s placement on “Medical Hold” beginning on April 1,
2016—the day after his original active duty orders were scheduled to end. Id. at 37, 43–44. On
March 29, 2016, Plaintiff received counseling regarding his Medical Hold and signed an
administrative counseling form signifying his understanding that his mobilization orders were
subject to modification “in correlation with [his] limited duty status,” including
“reduction/extension to the active duty period (IAW SECNAVINST 1770.3)” and that “[u]pon
[his] return to duty [he would] release from active duty within 10 working days.” Id. at 205.
HQMC modified Plaintiff’s original mobilization orders on April 18, 2016, extending his
time on active duty to September 1, 2016. Id. at 435. The modified orders reflected a total period
of active duty of 337 days and stated that the modification became part of Plaintiff’s original orders
and “[a]ll other provisions of the original orders remain[ed] the same.” Id. at 435, 437. This
represented the first of a series of modifications to Plaintiff’s original mobilization orders. The
second modification occurred on August 23, 2016, extending Plaintiff’s time on active duty to
September 21, 2016, and reflecting a total period of active duty of 357 days. Id. at 438. Identical
to the first modification, the second modified orders provided that the modification became part
of Plaintiff’s original orders and “[a]ll other provisions of the original orders remain[ed] the same.”
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Id. at 439. The second modification synchronized Plaintiff’s active duty end date with the
expiration date of Plaintiff’s Medical Hold.
Despite treatment, Plaintiff’s injuries did not improve to permit him to return to full duty,
and, as such, his physician recommended a Medical Evaluation Board (“MEB”) in September
2016. Id. at 176–77. On September 19, 2016, the BIA approved an extension of Plaintiff’s
Medical Hold to March 21, 2017. Id. at 40, 43–44. The following day, the HQMC Force
Augmentation Section (“MMIB-2”) notified Plaintiff that HQMC was willing to extend his
mobilization orders to January 31, 2017. Id. at 238. This put Plaintiff near 18 years of active duty
time, which he would reach on March 25, 2017. Id. at 266. As such, HQMC requested that
Plaintiff submit a sanctuary waiver as early as possible to permit any further extension of his
mobilization orders. Id. at 238. HQMC advised Plaintiff that it would not extend his mobilization
orders beyond March 21, 2017 without Plaintiff first submitting a sanctuary waiver. Id.In January and February 2017, HQMC exchanged numerous emails both internally and
with Plaintiff on the waiver issue. Id. at 239–59. When Plaintiff inquired as to the basis for the
waiver requirement’s application to his orders, HQMC asserted that Marine Corps Order (“MCO”)
1001.61A, as well as MCO 1800.11, provided the authority to require Marines on Medical Hold
to waive sanctuary protections prior to the issuance of follow-on mobilization orders. See, e.g.,
id. at 239, 243–44. Plaintiff refused to submit a sanctuary waiver and stated his position that the
USMC lacked legal authority to require a reservist on Medical Hold to waive congressionally-
directed sanctuary protections. See, e.g., id. at 250. Notwithstanding multiple emails discussing
their opposing views on the USMC’s Medical Hold and waiver authorities, and Plaintiff’s attempt
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to obtain “higher-level attention on the issue of Medical Hold/Orders,” id. at 256, neither party
relented. 2
In the meantime, HQMC issued three additional modifications to Plaintiff’s mobilization
orders on September 20, 2016, January 30, 2017, and February 27, 2017, extending his period of
active duty to February 1, 2017, then February 28, 2017, and finally March 21, 2017, respectively.
Id. at 441, 444, 447. Based on a recommendation made by the legal counsel of the Deputy
Commandant of Manpower and Reserve Affairs (“DC M&RA”), the final modification aligned
Plaintiff’s mobilization orders with the extension of his Medical Hold. Id. at 259, 278–79. Each
modification increased Plaintiff’s days of active duty, i.e., 490 days, 517 days, and ultimately 538
days. Id. at 441, 444, 447. Just as in the first two instances, these modified orders all provided
that each modification became part of Plaintiff’s original orders and “[a]ll other provisions of the
original orders remain[ed] the same.” Id. at 442, 446, 448. Without any additional extensions or
modifications to his latest mobilization orders, however, Plaintiff was released from active duty
on March 21, 2017. The USMC did not request that Plaintiff sign a Release from Active Duty
2 The tenor of the emails between HQMC and Plaintiff is notable in two ways that warrant
a brief aside. First, contrary to Plaintiff’s characterization, see Pl.’s Mot. for J. on Admin. R. at
30, ECF No. 10, the emails convey HQMC’s general concern for Plaintiff staying on active duty
orders to coincide with his Medical Hold, while also complying with USMC sanctuary-waiver
policies it believed were applicable. See, e.g., AR 242 (email from MMIB-2 representative to
Plaintiff stating, “I don’t want you to fall off orders and I want to make sure we push your current
set of orders out far enough to allow for your waiver of sanctuary to process.”). Second, contrary
to Defendant’s characterization, see Def.’s Mot. to Dismiss & Cross-Mot. for J. on Admin R. at
11, ECF No. 11, the emails do not evince an intent by Plaintiff to inappropriately leverage his
Medical Hold status to obtain a regular retirement but rather show that he asserted a principled
position on the legal authority for HQMC’s actions. See, e.g., AR 245 (email from Plaintiff to
same MMIB-2 representative stating, “I’m not trying to be difficult about it. It’s just that as one
of the USMC’s [subject matter experts] on Disability Law, I haven’t seen anything indicating that
there’s a need for a waiver in my case.”). As so often happens in litigation, a party’s past actions
may be perceived (or at least portrayed to the court) by an opposing party in the most unfavorable
light. In this case, the circumstances seem best described as “a difference in professional
opinion[.]” Id. at 253; see id. at 256.
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Against Medical Advice form prior to his separation from active duty and the termination of his
Medical Hold because the BIA did not believe Plaintiff “elect[ed] to be released from a medical
hold status.” Id. at 9, 212. On March 23, 2017, after he was released, Plaintiff indicated in an
email to MMIB-2 that he intended to submit the necessary paperwork, including a sanctuary
waiver, to enter back on active duty for the purpose of Medical Hold under new orders. Id. at 261–
63. He stated that his reluctance to submit a sanctuary waiver while serving on his previous orders
was the result of his belief that requiring the waiver on such orders was unlawful. Id. at 262.
At the same time Plaintiff and HQMC were discussing the need and propriety of a
sanctuary waiver, Plaintiff continued to move through the disability evaluation process. On March
7, 2017, the MEB determined Plaintiff was unlikely to return to full duty and referred Plaintiff’s
case to the Physical Evaluation Board (“PEB”) for a final determination. Id. at 481, 487. An
informal PEB convened on March 9, 2017. Id. at 461. As of March 17, 2017, the BIA determined
that Plaintiff “[met] the criteria for continuation in a medical hold status.”3 Id. at 265. On March
23, 2017, after his separation, the informal PEB determined Plaintiff was fit for active duty. Id. at
459. Plaintiff received the findings of the informal PEB on March 30, 2017. Id. at 451. He
accepted them and waived his right to a formal PEB on April 10, 2017. Id. at 451–58. In a letter
dated April 17, 2017, the PEB notified the Commandant of the USMC that Plaintiff had been found
3 On March 21 and April 3, 2017, Plaintiff received emails reflecting approvals of his
Medical Hold. AR 29–30. These emails appear to be merely the result of auto-generated
messages. See id. (emails sent from “dm.alerts@manpower.usmc.mil”); id. at 41 (BIA comment
entered on March 21, 2017, stating, “As the member has not submitted a [HADT] waiver w/Waiver
of Sanctuary Eligibility to MMIB-2, his medical hold benefits have expired as of 21 March 2017.
Next routing is a change status inactive request to properly close the case in MCMEDS.”); id. at
42 (noting that change status inactive request was approved on April 3, 2017); id. at 261 (email
from Plaintiff to MMIB-2 representative stating, “I saw via auto-message (dm-alerts) that [my
Medical Hold letter] was approved on the 21st, and then cancelled on the 22nd after my EAS
passed.”).
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fit for active duty and requested appropriate action be taken to “continue [Plaintiff] on active duty
until such active duty is terminated under other provisions of law or regulation.” Id. at 450.
On June 5, 2017, Plaintiff received a letter dated April 3, 2017, from the BIA that notified
him of the termination of his Medical Hold at the direction of the Commandant of the USMC
effective March 21, 2017. Id. at 7, 12–13. Plaintiff appealed the termination of Medical Hold on
June 30, 2017. Id. at 7–11. In a response dated September 29, 2017, the BIA explained that the
Commandant of the USMC disapproved Plaintiff’s continuation in a Medical Hold status due to
Plaintiff’s failure to adhere to service policy by refusing to execute a sanctuary waiver to remain
on active duty while in a Medical Hold status. Id. at 49. Plaintiff appealed the BIA’s denial to the
Department of the Navy’s Office of the Judge Advocate General (“OJAG”) on October 6, 2017.
Id. at 3–4. OJAG denied Plaintiff’s appeal on December 28, 2018. Id. at 206–14. OJAG found
that Plaintiff did not prove by a preponderance of the evidence that the BIA improperly terminated
his Medical Hold because the termination resulted from Plaintiff voluntarily separating from active
duty by refusing to submit a sanctuary waiver to obtain follow-on mobilization orders. Id. at 208–
11. Although it found that the BIA erred in determining that Plaintiff was not required to complete
a release against medical advice form prior to separation from active duty, OJAG concluded such
error was harmless because Plaintiff acknowledged that, if offered, he would not have signed the
form. Id. at 214.
II. Statutory and Regulatory Framework
A. Active Duty Authorities
Section 12301 of Title 10 defines the authority of the Secretary concerned to order reserve
component members to active duty. As relevant here, § 12301(d) provides that, “[a]t any time, an
authority designated by the Secretary concerned may order [a reservist] under his jurisdiction to
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active duty, or retain him on active duty, with the consent of that member.” 10 U.S.C. § 12301(d).
Section 12301(h) permits the Secretary of a military department, when authorized by the Secretary
of Defense, to order a reservist to active duty or retain a reservist on active duty for purposes of
authorized medical care or disability evaluation “with the consent of the member.” Id.§ 12301(h)(1); see id. § 12301(h)(2).
This authority is implemented by Department of Defense Instruction (“DoDI”) 1241.01
and DoDI 1332.18, which both mandate the retention of certain reservists, with their consent, on
active duty for the purpose of completing the disability evaluation process. Specifically, DoDI
1241.01 provides:
3. POLICY. It is [Department of Defense (“DoD”)] policy that: . . .
(2) When an RC [(“Reserve Component”)] Service member is on active duty (AD)
. . . for a period of more than 30 days and, at the scheduled end of that period, has
an unresolved in-LOD [“Line of Duty”] condition that may render the member unfit
for duty under the Disability Evaluation System (DES), but this has not yet been
determined by the DES, the member:
(a) Will, with his or her consent, be retained on AD . . . until:
1. Outstanding in-LOD conditions are resolved; or
2. He or she is either found fit for duty, separated, or retired as a result of a DES
finding.
Reserve Component (RC) Line of Duty Determination for Medical and Dental Treatments and
Incapacitation Pay Entitlements, DoDI 1241.01, ¶ 3 (2016) (emphasis added). The instruction
recognizes that a reservist “[m]ay elect to be released from active duty before resolution of the
conditions or completion of the DES process.” Id. ¶ 3.a.(2).(b). DoDI 1332.18 employs almost
identical language, stating DoD’s policy that “RC Service members on active duty orders
specifying a period of more than 30 days will, with their consent, be kept on active duty for
disability evaluation processing until final disposition by the Secretary of the Military Department
concerned.” Disability Evaluation System (DES), DoDI 1332.18, ¶ 3.h. (2014). The instruction
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likewise provides a reservist with the ability to choose to leave active duty before completion of
DES processing. Id.
The Navy and USMC have issued additional policy instructions relevant to the retention
of reservists in the DES process. Secretary of the Navy Instruction (“SECNAVINST”) 1770.3D
substantially mirrors the language of DoDI 1241.01 and DoDI 1332.18 but is phrased permissively
rather than as mandatory policy. See Management and Disposition of Incapacitation and
Incapacitation Benefits for Members of Navy and Marine Corps Reserve Components,
SECNAVINST 1770.3D, ¶ 3 (2006) (“[M]embers, with their consent, may also be ordered to, or
continued on, active duty to complete authorized medical care, be medically evaluated for
disability or to complete a required Department of Defense healthcare study. . . .” (emphasis
added)). The instruction defines Medical Hold status as the “[r]etention of reservists on active
duty to receive medical treatment for service-connected injuries, illnesses and/or diseases until
determined Fit for Duty by the BIA Senior Medical Officer (SMO) and/or Medical Status Review
Officer (MSRO), or until final disposition is determined by the PEB.” 4 Id. ¶ 6.m. It further sets
forth the Medical Hold process, which begins with a determination by the BIA that a reservist
should be placed in the Medical Hold program subject to the reservist’s eligibility and “[c]onsent
to remain or be placed on active duty for incapacitation or [DES] adjudication.” Id. ¶ 8.b.(2). For
reservists “who decline to accept or continue on active duty” under Medical Hold, SECNAVINST
4 “Fit for Duty” is a “pronouncement by a Military physician or by a [MEB] that a service
member previously on light or limited duty has healed from the injury, illness, or disease that
necessitated the member’s serving in a medically restricted duty status.” SECNAVINST 1770.3D,
¶ 6.e. “Fit for Continued Naval Service” is a “finding made exclusively by the Department of the
Navy’s PEB indicating that the service member is reasonably able to perform the duties of his or
her office, grade, rank or rating.” Id. ¶ 6.f.
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1770.3D directs the BIA to complete a “Release from Active Duty Against Medical Advice” form.
Id. ¶ 8.h.
At the USMC level, Marine Administrative Message (“MARADMIN”) 259/04, like DoDI
1241.01 and DoDI 1332.18, mandates the retention of certain injured Marines on active duty. See
Policy Guidance for Activated Reservists (IRR/IMA/SMCR) and Retirees Who Have Incurred or
Aggravated Medical Conditions While on Active Duty, MARADMIN 259/04, ¶ 3.D. (2004)
(“Marines activated for a period of more than 30 days [who become sick, injured, or aggravate an
existing medical condition] . . . will be retained on active duty until they are fit for duty, or had
their medical status reviewed by the SMO . . . and/or processed through the DES. . . .” (emphasis
added)). Although not explicitly referencing the consent requirement, the policy guidance
acknowledges the choice of a Marine to be (or not to be) placed on Medical Hold. Id. ¶ 5. It
further defines Medical Hold as a “convenience of the government” and “temporary status in which
a Marine is placed when required to remain on active duty beyond the Marine[’]s [end of active
service or expiration of current contract (“EAS/ECC”)] to complete medical treatment, or prepare
for a MEB or [PEB].” Id. ¶ 2.C.
B. Sanctuary Authorities
Section 12686 of Title 10 prohibits—except by approval of the Secretary concerned—the
involuntary release of reservists, who are on active duty under non-training orders and within two
years of eligibility for retired pay, prior to those reservists becoming eligible for that pay. 10
U.S.C. § 12686(a). This two-year period after a reservist accumulates 18 years active duty time is
commonly referred to as “sanctuary.” See Policy and Procedures for Reserve Component (RC)
Member Service Beyond 16 Years of Active Duty Service, SECNAVINST 1800.2, ¶ 2 (2008).
Sanctuary protection is not guaranteed. The statute provides the Secretary concerned with
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authority to require sanctuary-eligible reservists, as a condition of certain active duty orders, to
waive the applicability of § 12686(a) for the period of active duty covered by those orders. 10
U.S.C. § 12686(b). The application of this authority is expressly limited to “a member of a reserve
component who is to be ordered to active duty (other than for training) under section 12301 of this
title pursuant to an order to active duty that specifies a period of less than 180 days and who (but
for this subsection) would be covered by subsection (a).” Id. The statute provides the service
branch Secretary not only with discretion to decide whether to require waiver at all but also to
determine the timing of the execution of any waiver. The Secretary “may require that a waiver . .
. be executed before the period of active duty begins.” Id.The Navy and USMC have issued numerous policies and other guidance documents related
to sanctuary waiver, including order-issuance and approval processes designed to ensure that
reservists “who meet or exceed 18 years of active duty do so by design and are planned, budgeted
additions to the Total Force.” SECNAVINST 1800.2, ¶ 3; see Policy and Procedures for Reserve
Component Sailors Service Beyond 16 Years of Active-Duty Service, Office of the Chief of Naval
Operations Instruction (“OPNAVINST”) 1001.27, ¶ 1 (2013) (ensuring “all entry into sanctuary
or earning of a regular retirement is the result of planned actions necessary to meet the needs of
the Navy”). MCO 1800.11 provides for the management of Marine reservists who are beyond 16
years of active duty service or within two years of becoming eligible to enter sanctuary. See Policy
and Procedures for Reserve Component (RC) Member Service Beyond 16 Years of Active Duty
Service, MCO 1800.11, ¶ 1 (2009). That order designates the DC M&RA as “the sole approval
authority for all [Marine reservists] to . . . exceed 18 active duty years and enter into AD [active
duty] sanctuary.” Id., ch. 1, ¶ 3.b. It provides that any active duty order for a Marine reservist that
has an end of active service date that would accumulate 18 or more years of active duty time for
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the reservist must be approved by the DC M&RA and that such order “shall not be issued to any
[reservist] without a sanctuary request approved in accordance with this order.” Id. ¶ 4.k.1. The
regulation allows for reservists to request active duty orders that would result in serving 18 years
or more on active duty but only “contingent upon executing a waiver of sanctuary protection.” Id.
¶ 12. Pursuant to § 12686(b), the policy mandates that “[o]rders requiring waiver of sanctuary
protection must be for 179 days or less and pursuant to authority of 10 U.S.C. 12301,” id. ¶ 12.a.,
and that any waiver must be provided in writing “prior to executing the orders providing for 18 or
more total active duty years,” id. ¶ 12.b.; see Waiver of Sanctuary Protection, MARADMIN
104/13, ¶ 4.C. (requiring that all active duty orders that would result in a reservist reaching 18
years of active duty service “be accompanied with a waiver of sanctuary protection” and “shall not
exceed 179 days in length”).
MCO 1001.61A provides policy guidance on the application of sanctuary waiver to
reservists on Medical Hold. See Policy and Procedures for Sourcing Personnel to Meet Individual
Augmentation (IA) Requirements, MCO 1001.61A, ch. 3, ¶ 7 (2013). According to that order, if
a reservist’s “initial placement or subsequent extension” on Medical Hold will cause him or her to
exceed 18 years of active duty service, then the DC M&RA “can withhold the issuance of [active
duty] orders if the reservist fails to execute a waiver of sanctuary eligibility as part of their consent
to be continued on active duty for medical observation, evaluation or treatment.” Id. The policy
guidance cites as authority for this statement a November 19, 2012 legal opinion drafted by the
USMC’s Judge Advocate Division at the request of MMIB-2 (“JAD Memo”). See AR 217–18.
III. The Instant Action
Plaintiff filed suit in this Court on April 27, 2020. Pl.’s Compl., ECF No. 1. On August
21, 2020, Plaintiff filed his Motion for Judgment on the Administrative Record, arguing that the
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Court should reverse the termination of his Medical Hold, restore him to active duty in the USMC,
declare that he would have properly entered sanctuary but for his unlawful separation, and award
him all retroactive pay and allowances to which he would have been entitled had his Medical Hold
not been terminated. See generally Pl.’s Mot. for J. on Admin. R., ECF No. 10. Defendant filed
a combined Motion to Dismiss and Cross-Motion for Judgment on the Administrative Record on
September 11, 2020. Defendant requests that the Court dismiss Plaintiff’s Complaint or,
alternatively, grant the United States judgment on the basis that the USMC acted lawfully in
declining to further extend Plaintiff’s active duty orders after he refused to waive his sanctuary
protections. See generally Def.’s Mot. to Dismiss & Cross-Mot. for J. on Admin R., ECF No. 11.
LEGAL STANDARDS
I. RCFC 12(b)(6)
A complaint may be dismissed for “failure to state a claim upon which relief can be
granted.” R. 12(b)(6), Rules of the United States Court of Federal Claims (“RCFC”). To survive
a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter,” thereby providing
“facial plausibility” to a plaintiff’s claims. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The
plausibility standard . . . asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. Although a “court must accept well-pleaded factual allegations as true and must
draw all reasonable inferences in favor of the claimant,” Call Henry, Inc. v. United States, 855
F.3d 1348, 1354 (Fed. Cir. 2017), “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice” to shield a complaint from dismissal,
Iqbal, 556 U.S. at 678.
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II. RCFC 52.1
Motions for judgment on the administrative record are governed by RCFC 52.1. RCFC
52.1(c). Such motion is “properly understood as . . . an expedited trial on the record.” Bannum,
Inc. v. United States, 404 F.3d 1346, 1356 (Fed. Cir. 2005). In contrast to the standard for summary
judgment, “the standard for judgment on the administrative record is narrower” and involves
determining, “given all the disputed and undisputed facts in the administrative record, whether the
plaintiff has met the burden of proof to show that the [challenged action or] decision was not in
accordance with the law.” Martinez v. United States, 77 Fed. Cl. 318, 324 (2007) (citing Bannum,
404 F.3d at 1357). Therefore, a genuine issue of disputed fact does not prevent the Court from
granting a motion for judgment on the administrative record. See Bannum, 404 F.3d at 1357.
III. Standard of Review in Military Pay Cases
In military pay cases, the scope of judicial review is deferential and is limited to
determining whether an action or decision by the military was “arbitrary, capricious, or in bad
faith, or unsupported by substantial evidence, or contrary to law.” Doe v. United States, 132 F.3d
1430, 1434 (Fed. Cir. 1997) (quoting Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir.
1983)); see Martinez v. United States, 333 F.3d 1295, 1314 (Fed. Cir. 2003) (noting that arbitrary-
and-capricious review is applied in suits challenging underlying discharge actions as well as the
decisions of military correction boards). The Court’s review is limited to the administrative record.
Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006). Therefore, the record must contain
evidence of legal error or deficiency in the decision-making process, meriting judicial relief and
“overcom[ing] the strong, but rebuttable, presumption that the administrators of the military, like
other public officers, discharge their duties correctly, lawfully, and in good faith.” Doe, 132 F.3d
at 1434 (quoting Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979)). The burden is on
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the plaintiff to prove such error through “cogent and clearly convincing evidence.” Wronke v.
Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986) (quoting Dorl v. United States, 200 Ct. Cl. 626, 633
(1973), cert. denied, 414 U.S. 1032 (1973)).
Beyond the presumption that military administrators lawfully discharge their duties,
“[j]udicial deference must be ‘at its apogee’ in matters pertaining to the military and national
defense.” Voge v. United States, 844 F.2d 776, 779 (Fed. Cir. 1988) (quoting Rostker v. Goldberg,
453 U.S. 57, 70 (1981)); see Murphy v. United States, 993 F.2d 871, 872 (Fed. Cir. 1993)
(“Justiciability is a particularly apt inquiry when one seeks review of military activities.”).
Nevertheless, not every claim arising from a military decision is beyond judicial review. Adkins
v. United States, 68 F.3d 1317, 1323 (Fed. Cir. 1995). Even where Congress provides unlimited
discretion, the military is “bound to follow its own procedural regulations if it chooses to
implement some.” Murphy, 993 F.2d at 873 (citing Sargisson v. United States, 913 F.2d 918, 921
(Fed. Cir. 1990)); see Fisher v. United States, 402 F.3d 1167, 1177 (Fed. Cir. 2005); see also Voge,
844 F.2d at 779 (“[T]he Claims Court may review the [challenged decision] process for
compliance with established procedures.”). Accordingly, where procedural violations are alleged,
“this [C]ourt does not improperly exercise any discretion reserved for the military” but rather
determines only whether the challenged action violated applicable statutory and regulatory
standards. Adkins, 68 F.3d at 1323.
DISCUSSION
I. Plaintiff Sufficiently Alleges That His Separation from Active Duty Was Involuntary.
To establish the Court’s jurisdiction, Plaintiff relies on the Military Pay Act, 37 U.S.C §
204, as the relevant money-mandating statute. “[T]he Military Pay Act ‘provides for suit in [the
Claims Court] when the military, in violation of the Constitution, a statute, or a regulation, has
15
denied military pay.’” See Antonellis v. United States, 723 F.3d 1328, 1331 (Fed. Cir. 2013)
(alteration in original) (quoting Dysart v. United States, 369 F.3d 1303, 1315 (Fed. Cir. 2004)).
Defendant moves for the Court to dismiss Plaintiff’s Complaint pursuant to RCFC 12(b)(6) for
failure to state a claim. 5 Defendant characterizes Plaintiff’s separation from active duty as
voluntary because he refused to submit a waiver of sanctuary to allow further extension of his
orders and, as a result, was released from active duty upon the expiration of his orders. ECF No.
11 at 11. It argues, therefore, that Plaintiff may not pursue a claim under the Military Pay Act. Id.
at 13.
Military Pay Act claims require that a plaintiff’s discharge or retirement from military
service be involuntary. Metz, 466 F.3d at 998. “[I]f the service member’s separation from the
service is voluntary, such as pursuant to a voluntary retirement, the Military Pay Act does not
impose on the government any continuing obligation to pay the service member.” Smith v. Sec’y
of the Army, 384 F.3d 1288, 1295 (Fed. Cir. 2004); see Moyer v. United States, 190 F.3d 1314,
1319 (Fed. Cir. 1999) (observing “the common sense notion that one who voluntarily gives up any
right to compensation and benefits cannot later claim entitlement to such”). While courts initially
viewed voluntariness as a jurisdictional issue, it is now well settled that the question of whether a
service member voluntarily separated from active duty goes directly to the merits of a claim
brought under the Military Pay Act. See Metz, 466 F.3d at 998.
5 Defendant initially moved to dismiss the Complaint for lack of subject-matter
jurisdiction. See ECF No. 11 at 8–10. It subsequently acknowledged, in response to arguments
raised in Plaintiff’s opposition, that the issue of voluntariness in the context of a service member’s
separation from the military is properly assessed under RCFC 12(b)(6). See Def.’s Reply at 1–3,
ECF No. 15. After reviewing the relevant case law, the Court agrees and will construe Defendant’s
motion as a request to dismiss for failure to state a claim upon which relief can be granted.
16
Courts generally presume a resignation or retirement to be voluntary. See Carmichael v.
United States, 298 F.3d 1367, 1372 (Fed. Cir. 2002). The presumption of voluntariness also
logically “extend[s] to a military service member’s honorable discharge upon the expiration of the
terms of his enlistment where the member refuses to execute an authorized re-enlistment contract.”
Id. Separation from active duty, however, can be understood as involuntary if obtained under
duress or coercion. See id. In order to establish that an otherwise voluntary discharge was the
product of 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. (citing Christie v. United
States, 518 F.2d 584, 587 (Ct. Cl. 1975)). This three-part assessment has been referred to, on at
least one occasion, as the Carmichael test. See Sommers v. United States, 149 Fed. Cl. 529, 537
(2020).
In Carmichael, the plaintiff, a Chief Petty Officer in the Navy, requested a reenlistment
extension but refused on religious grounds to execute the reenlistment contract because it identified
him by his social security number. Carmichael, 298 F.3d at 1371. The Navy declined to provide
an accommodation and, as a result, the plaintiff was honorably discharged when his enlistment
expired. Id. The Federal Circuit vacated the dismissal of the plaintiff’s case and remanded the
matter back to the lower court to determine whether the Navy wrongfully failed to follow its
religious accommodation policies with respect to the plaintiff’s reenlistment, thereby making
plaintiff’s “voluntary” retirement potentially coerced. Id. at 1376. As Carmichael held,
government conduct not in adherence with its own rules and regulations may qualify as coercive,
rendering a discharge involuntary. See id. at 1372; see also Roskos v. United States, 549 F.2d
1386, 1389–90 (Ct. Cl. 1977) (“An action is not voluntary if it is produced by government conduct
17
which is wrongful.”). In assessing whether government conduct constitutes coercion, a court must
objectively evaluate all the facts and circumstances. Carmichael, 298 F.3d at 1372.
With respect to the first prong of the Carmichael test, Plaintiff has sufficiently pled facts
indicating that he involuntarily accepted the terms of the USMC. The USMC offered to extend
Plaintiff’s active duty orders to align with the extension of his Medical Hold but demanded that he
waive sanctuary as a condition of the extension orders. See Compl., Ex. 10 at 34, ECF No. 1-2
(Email from MMIB-2 representative to Plaintiff). Plaintiff alleges that he “desired to remain on
active duty until his PEB proceedings were resolved” and was “surprised” by the decision to
terminate his active duty status. ECF No. 1 ¶¶ 77, 78. Just as the plaintiff in Carmichael, Plaintiff
does not claim that he “tender[ed] his resignation or indicate[d] in any way that he desired to be
separated from the Navy.” See Carmichael, 298 F.3d at 1376 (quoting without citation the
plaintiff’s argument in the lower court). Put another way, Plaintiff alleges that—had he not been
unlawfully required to waive sanctuary—he would have agreed to remain on active duty orders.
See id. at 1377.
The Complaint also contains sufficient facts alleging that Plaintiff’s circumstances
permitted no other alternative, satisfying the second prong of the Carmichael test. The USMC
presented Plaintiff with no other option for him to continue serving on active duty orders past
March 21, 2017. See ECF No. 1-2 at 34. Plaintiff therefore faced a binary choice: submit a
sanctuary waiver that he believed to be unlawful or face separation from active duty upon the
expiration of his latest mobilization orders.
The third prong—and arguably the most demanding element—of the Carmichael test
involves determining whether the government conduct in this case rises to the level of coercion or
duress. Defendant maintains that the USMC violated no law or regulation by allowing Plaintiff’s
18
active duty orders to expire after Plaintiff failed to consent to what Defendant argues was a lawful
condition of the USMC’s offer to extend his active duty orders. ECF No. 11 at 16. Plaintiff,
however, alleges the USMC violated various statutory and regulatory authorities by failing to
retain him on active duty until his fitness for duty was determined by the PEB and by unlawfully
requiring a sanctuary waiver for an extension of his orders. See, e.g., ECF No. 1 ¶¶ 53, 76.
Deciding whether the USMC was obligated to continue Plaintiff on active duty for the
purpose of Medical Hold or whether the USMC lawfully exercised its statutory sanctuary waiver
authority goes directly to the merits of Plaintiff’s case. As the Federal Circuit made clear in Metz,
on a motion to dismiss, courts are to analyze whether a plaintiff has asserted a claim of involuntary
separation from the military. Metz, 466 F.3d at 998 (holding that a plaintiff “must assert and
ultimately establish that his separation was involuntary,” and the Could should consider the
question of voluntariness “in the context of the merits of a plaintiff’s case”). Here, the Court is
satisfied that Plaintiff has pled facts providing facial plausibility for his claim, thus saving his
Complaint from dismissal pursuant to RCFC 12(b)(6). Moreover, because both parties have
moved for judgment on the administrative record, the Court has the present opportunity to answer
the merits of the questions raised by the third prong of the Carmichael test. Accordingly,
Defendant’s Motion to Dismiss is denied.
II. The Parties’ Cross-Motions for Judgment on the Record
Resolving Plaintiff’s claim on the merits requires the Court to navigate the intersection
between two separate lines of military regulations: one that in certain circumstances requires a
reservist to be placed or remain on active duty until he completes medical treatment or disability
evaluation for line-of-duty injuries, and the other that authorizes the USMC in certain
circumstances to require a reservist to execute a waiver of statutory sanctuary protections as a
19
condition of issuing active duty orders. Each set of regulations is premised on its own statutory
authority, and each is aimed at serving its own purpose. The question here is how (or even
whether) these authorities overlap in Plaintiff’s case and, if so, what the interplay is between the
two. The parties’ cross-motions tee up the issues to be answered in a two-part analysis: (1) whether
Plaintiff consented to continuing on active duty orders, even though he refused to execute a
sanctuary waiver, and (2) whether the USMC could lawfully condition extension of Plaintiff’s
orders on a sanctuary waiver. The Court addresses the issues ad seriatim.
A. The USMC Had No Obligation, Absent Plaintiff’s Consent, to Continue Plaintiff
on Active Duty for the Purpose of Medical Hold.
Plaintiff argues that his separation from active duty was contrary to law because, as of his
separation date, none of the conditions of SECNAVINST 1770.3D had been met: no treating
physician had found him “Fit for Duty,” the PEB had not rendered a determination regarding
whether he was “Fit for Continued Naval Service,” and Plaintiff had not elected to be released
from Medical Hold. ECF No. 10 at 25 (citing generally SECNAVINST 1770.3D). Defendant
asserts that Plaintiff’s separation from active duty was an unavoidable consequence of Plaintiff
withholding his consent to the extension of his soon-to-expire orders. ECF No. 11 at 15. Because
the USMC could not retain Plaintiff on active duty without his consent, Defendant contends the
USMC violated no law or regulation by permitting Plaintiff’s active duty orders to expire on their
own terms. Id. at 16. According to Defendant, this, in turn, caused the USMC to terminate
Plaintiff’s Medical Hold because a reservist must be on active duty to maintain such status. Id. at
15.
Consistent throughout the relevant statutory and regulatory provisions relating to the
Medical Hold process is the requirement of consent. Section 12301(h) authorizes the Secretary of
a military department to order to and retain a reservist on active duty to receive medical treatment
20
or be medically evaluated for a disability, but only with the reservist’s consent. 6 10 U.S.C. §§
12301(h)(1), (2). As discussed above, DoDI 1241.01 and DoDI 1332.18 mandate the retention of
reservists, with their consent, on active duty for the purpose of completing medical treatment or
the disability evaluation process. See DoDI 1241.01, ¶ 3; DoDI 1332.18, ¶ 3. SECNAVINST
1770.3D also explicitly requires reserve personnel, as part of the Medical Hold process, to
“[c]onsent to remain or be placed on active duty for incapacitation treatment or [DES]
adjudication.” SECNAVINST 1770.3D, ¶ 8.b.(2). The consent requirement, therefore, is
fundamental to the statutory and regulatory scheme.
Plaintiff characterizes the consent requirement as a unilateral benefit to reservists,
precluding conscription and protecting the right of the reservist to timely resume his or her civilian
life. ECF No. 10 at 31 (“The consent requirement was not designed to benefit the military nor
intended as a mechanism to force a Reservist to agree to any conditions the military might desire
to impose.”). According to Plaintiff, the consent requirement may be used solely by reservists to
secure benefits from the service branch and to control the manner in which a reservist enters and
remains on active duty. See Pl.’s Resp. to Def.’s Cross-Mot. & Mot. to Dismiss at 21, ECF No.
12. Defendant, on the other hand, argues that the consent requirement mutually benefits the
6 Plaintiff was ordered to active duty pursuant to 10 U.S.C. § 12301(d), which also requires
the consent of the reservist as a condition of being ordered to or retained on active duty. See 10
U.S.C. § 12301(d) (“At any time, an authority designated by the Secretary concerned may order a
member of a reserve component under his jurisdiction to active duty, or retain him on active duty,
with the consent of that member.”). Plaintiff remained on § 12301(d) orders while he was on
Medical Hold due to “fiscal and manpower consideration[s].” ECF No. 15 at 8 n.1. The Court,
here, cites § 12301(h) as the relevant statutory authority related to ordering reservists to, or
retaining them on, active duty for purposes of medical treatment or disability evaluation. Neither
party suggests that the use of § 12301(d), rather than § 12301(h), as authority for issuing and
extending Plaintiff’s orders bears any material legal significance or that the term “consent” should
be interpreted differently between these sections.
21
reservist and the service branch, protecting the latter’s discretion to establish the terms of initiating
and extending active duty orders. See Def.’s Reply at 12, ECF No. 15.
In this case, Plaintiff contends that he satisfied the consent requirement of the applicable
statutory and regulatory authorities, notwithstanding his refusal of the sanctuary waiver condition
imposed by the USMC. See ECF No. 12 at 20. There can be no doubt that Plaintiff had a desire
to remain on active duty for the purpose of Medical Hold. See AR 244–45, 249–50, 262, 263. The
question, however, is whether the Court should treat Plaintiff’s desire to remain on active duty to
complete the DES process as equivalent to consent to be retained on active duty for that purpose
or, alternatively, whether the Court should disregard the condition imposed by the USMC on its
offer to extend Plaintiff’s active duty orders when determining whether Plaintiff consented. In
both instances, the Court finds it should not.
The Court first begins with the language of the statute and regulations at issue. See United
States v. Gonzales, 520 U.S. 1, 4 (1997). The Court’s “inquiry must cease” if such language is
unambiguous and the statutory and regulatory scheme “is coherent and consistent.” Robinson v.
Shell Oil Co., 519 U.S. 337, 340 (1997) (quoting United States v. Ron Pair Enters., Inc., 489 U.S.
235, 240 (1989)). “Consent” is defined as a “voluntary yielding to what another proposes or
desires.” Black’s Law Dictionary 368 (10th ed. 2014). Indeed, at oral argument, Plaintiff’s
counsel defined the plain meaning of the term consent as “voluntary agreement.” Hr’g Tr. at 10:1–
2, ECF No. 22. Fundamental to a valid agreement is mutual assent, requiring acceptance of all
essential terms of the offer. Cf. Anderson v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003)
(citing Est. of Bogley v. United States, 514 F.2d 1027, 1032 (Ct. Cl. 1975) (“It is fundamental that
in order to have a valid contract . . . the offer must be accepted as to all its terms by the offeree.”)).
Therefore, for a reservist to consent to remain on active duty within the statutory and regulatory
22
meaning of the term, the reservist must accept or “voluntarily yield” to the terms of the service
branch’s offer of retention. See Black’s Law Dictionary 368. Indeed, a review of Plaintiff’s
original orders to active duty, which laid out the terms of his orders and required Plaintiff to
confirm his acceptance, supports this interpretation. See AR 433 (requiring Plaintiff to “(Circle
the appropriate response) “I voluntarily accept/do not accept these orders”).
The statutory and regulatory scheme here is coherent and consistent. At the statutory level,
the Secretary of a military department has the discretion to order to or retain a reservist on active
duty for medical care and disability evaluation. See 10 U.S.C. § 12301(h). At the regulatory level,
this discretion is constrained by DoD and USMC policies that require retention if all conditions
(including consent) are met. 7 See, e.g., DoDI 1241.01, ¶ 3 (requiring that an injured reservist
“[w]ill, with his or her consent, be retained” on active duty); MARADMIN 259/04 (dictating that
reservists “will be retained on active duty until they are fit for duty”); see also Fisher, 402 F.3d at
1177. Therefore, the scheme requires that a service branch extend an offer to place or retain an
eligible injured reservist on active duty for purposes of medical treatment and disability evaluation.
It is then the reservist’s choice to accept the offer (i.e., consent) or refuse the offer. The regulatory
scheme reflects that binary choice, where a failure to consent to the service branch’s offer is
characterized as either an election not to continue or a declination to continue on active duty. See
7 Defendant argues in its brief that, regardless of the consent requirement, the USMC has
no legal obligation to extend a reservist’s active duty orders through the length of his Medical Hold
because “[m]edical hold is at the discretion of the service.” ECF No. 11 at 20. It relies primarily
on discretionary language in the relevant statutory provisions and Navy-level regulations and
ignores DoD-level and USMC-level regulations that limit that discretion through the use of
mandatory language. Id. Even where Congress grants an agency discretionary authority, the
agency may choose to limit its own discretion. See Fisher, 402 F.3d at 1177 (holding that the
military’s procedural regulations “by their nature limit [its] discretion”). DoD has done just that
with respect to medical hold authority, and Defendant conceded as much at argument. Hr’g Tr. at
60:16–21. The Navy instructions Defendant cites, to the extent they are conflicting, do not control.
See, e.g., Baude v. United States, 955 F.3d 1290, 1299 (Fed. Cir. 2020).
23
DoDI 1241.01, ¶ 3 (stating a reservist “[m]ay elect to be released from active duty before resolution
of the [medical] conditions or completion of the DES process”); DoDI 1332.18, ¶ 3 (“RC Service
members may elect to be released from active duty before completion of DES processing.”);
MARADMIN 259/04, ¶ 5 (“Marines having incurred or aggravated a medical condition while
activated may elect deactivation . . . .”); see also SECNAVINST 1770.3D, ¶ 8.h. (referencing
reservists “who decline to accept or continue on active duty for incapacitation treatment”).
Plaintiff is correct, then, that the consent requirement empowers reservists, permitting them
to refuse unwanted or potentially unlawful or irregular orders. See Groves v. United States, 47
F.3d 1140, 1146 (Fed. Cir. 1995) (interpreting an Army regulation including the language, “will
be returned to active duty with his or her consent,” as “effectively put[ting] the onus on the Army
to order [an officer] to active duty, while empowering [the officer] to reject unwanted, irregular,
or unwarranted orders”). The consent requirement, however, does not aggrandize the reservist’s
power by permitting him or her to dictate the terms of the orders. That authority resides solely
with the service branch as demonstrated by the plain meaning of consent—i.e., the voluntary
yielding to the proposed terms of the service branch and not the inverse.
Here, Plaintiff’s belief that the USMC lacked authority to condition the extension of his
active duty orders on his waiver of sanctuary does not have the effect of making the service
branch’s offer of retention unconditional. Nor was Plaintiff’s sincere desire to remain on active
duty to complete the DES process sufficient to satisfy the consent requirement, as contemplated
by the statutory and regulatory scheme, even if he otherwise met the criteria to remain on active
duty in a Medical Hold status. Because Plaintiff refused to waive his sanctuary protections, and
therefore did not yield to the proposed terms of the USMC’s offer to extend his orders, he did not
consent (according to the plain meaning of that term) to remaining on active duty. Without
24
Plaintiff’s consent, the USMC had no obligation to extend Plaintiff’s active duty orders to facilitate
his Medical Hold.
B. The USMC Could Not Lawfully Require Plaintiff to Waive Sanctuary.
The Court’s inquiry is not at an end, however. Under Carmichael, a service member who
is separated from a service branch due to the member’s failure to consent to unlawfully imposed
conditions or terms may seek recovery pursuant to the Military Pay Act. See Carmichael, 298
F.3d at 1372. The Court must therefore determine whether the USMC could lawfully condition
the extension of Plaintiff’s active duty orders on his waiver of sanctuary protections. For the
reasons explained below, the Court finds that Plaintiff’s orders were not subject to the Secretary’s
waiver authority.
1. Application of Sanctuary Waiver to Reservists on Medical Hold
As an initial matter, Plaintiff does not point to any language in § 12686(b) indicating that
the Secretary’s waiver authority does not apply to active duty orders of reservists who are in a
Medical Hold status. Indeed, the sanctuary waiver provision is broadly worded to apply to
reservists who, among other criteria, are “to be ordered to active duty (other than for training)
under section 12301.” 10 U.S.C. § 12686(b). The sanctuary provision similarly applies to
reservists “on active duty (other than for training).” Id. § 12686(a). Thus, the only orders excepted
from the Secretary’s waiver authority (and from triggering sanctuary to begin with) are training
orders. See id. §§ 12686(a), (b); see also SECNAVINST 1800.2, ¶ 3.b. (“All active duty orders
including Active Duty for Training (ADT) [and] Annual Training (AT) . . . , are included in the
calculation of a 20-year Active Duty Retirement. However, ADT and AT orders do not trigger the
sanctuary provision.”). An active duty order for the purpose of medical treatment or disability
evaluation, which is specifically authorized under § 12301(h), thus explicitly falls within the
25
category of orders subject to § 12686(b). Accordingly, although Plaintiff may find the application
of the waiver requirement to active duty orders for the purpose of Medical Hold “morally
repugnant,” ECF No. 10 at 30, it is not contrary to the plain language of the statute.
2. Application of the Sanctuary Waiver Requirement to Plaintiff’s Orders
The question then becomes whether the USMC could lawfully apply the waiver
requirement to Plaintiff’s active duty orders. Plaintiff contends that the USMC acted contrary to
law by conditioning the further extension of his orders on a waiver of sanctuary. ECF No. 12 at
22. He argues that because his original orders specified a period of 183 days and had been
modified five times to extend the period of active duty to 538 days, to coincide with his Medical
Hold, the USMC lacked authority under § 12686(b) to require him to waive sanctuary for further
extension of his orders. Id. at 22–23; ECF No. 10 at 23. The USMC did not require Plaintiff to
waive sanctuary before his original orders commenced or before he was placed on Medical Hold
and, according to Plaintiff, could not compel waiver thereafter. See ECF No. 12 at 23.
Defendant agrees that the USMC could not require Plaintiff to waive sanctuary with respect
to his initial 183-day period of active duty. See ECF No. 11 at 19–20 (“The fact that no waiver
had been requested during [Plaintiff’s] 183-day active duty extension was in accordance with the
regulations. . . .”). It, however, argues that MCO 1001.61A permits the USMC to require waivers
for the extension of a reservist’s active duty orders to facilitate an existing Medical Hold. Id. at
17; ECF No. 15 at 15–16. MCO 1001.61A provides:
If the situation arises where a reserve Marine’s initial placement or subsequent
extension on medical hold will cause the member to exceed 18 years of total active
duty service, the DC M&RA can withhold the issuance of ADOS orders if the
reservist fails to execute a waiver of sanctuary eligibility as part of their consent to
be continued on active duty for medical observation, evaluation or treatment.
26
MCO 1001.61A, ch. 3, ¶ 7. In Defendant’s view, that is precisely what the USMC did in Plaintiff’s
case. Focusing on the extension period as an independent active duty period, it contends that
imposing a waiver requirement was lawful because the extension of Plaintiff’s orders beyond
March 21, 2017, would have been for a period of less than 180 days during which Plaintiff
otherwise would have attained sanctuary. ECF No. 11 at 19; ECF No. 15 at 15. Defendant’s
argument fails for multiple reasons.
a. The Waiver Requirement Was Inapplicable to Plaintiff’s Orders on Their Face.
First, the terms of Plaintiff’s original orders and subsequent modifications extending those
orders undermine Defendant’s argument. Plaintiff was ordered to active duty under § 12301(d) in
September 2015 on orders specifying a 183-day active duty period. AR 428. As noted above,
given their length, the parties agree that the USMC had no authority to require Plaintiff to waive
sanctuary as a condition of his original orders. And, in fact, Plaintiff was not requested to and did
not execute any sanctuary waiver. See id. at 6. Consistent with that position, the USMC required
Plaintiff, as part of his acceptance of the original orders, to certify his understanding that he “may
become eligible for sanctuary zone protection” under § 12686(a). Id. at 433. Plaintiff’s orders
were originally set to expire on March 31, 2016, nearly a year before Plaintiff would have become
eligible for sanctuary zone protection. See id. at 428. Because Plaintiff would not become eligible
for sanctuary during the period covered by his original orders, the only means by which Plaintiff
could enter sanctuary would be through an extension of his orders’ original expiration date.
Moreover, the language of each modification order cuts against Defendant’s contention
that the Court should treat the extension of Plaintiff’s orders as a distinct period of active duty in
terms of applying § 12686(b). Plaintiff’s first modified order, and every subsequent modified
order, specified a period of active duty beginning with the date Plaintiff was brought on duty,
27
October 1, 2015, and ending with a date that increased the duration of Plaintiff’s active duty service
measured by days. See id. at 435 (reflecting 337 total days on active duty), id. at 438 (reflecting
357 total days on active duty), id. at 441 (reflecting 490 total days on active duty), id. at 444
(reflecting 517 total days on active duty), at 447 (reflecting 538 total days on active duty).
According to the text of the orders, each extension was an addition to Plaintiff’s original period of
active duty. The modifications did not reflect separate, distinct active duty periods, as Defendant
posits. As a result, with each extension, Plaintiff’s total active duty period increased, becoming
further attenuated from the 179-day temporal limitation Congress imposed on the Secretary’s
waiver authority.
Finally, each modified order did not stand alone, rather it incorporated the terms of
Plaintiff’s original orders. Specifically, each modification stated that it became part of Plaintiff’s
original orders and “[a]ll other provisions of the original orders remain[ed] the same.” Id. at 437,
439, 442, 446, 448. This would include Plaintiff’s certification that he may become eligible for
sanctuary during the period of active duty covered by the orders. Because the modified orders
became intractably linked to Plaintiff’s original orders, they did not qualify on their face as orders
that “specif[y] an active duty period of 180 days or less.” 10 U.S.C. § 12686(b).
The record indicates that the USMC was planning to continue Plaintiff on active duty, if
he submitted a sanctuary waiver, through a similar extension of orders. See AR 243, 248, 254,
264–65 (emails discussing extended orders). Accordingly, under the applicable statute and
regulations, Plaintiff’s active duty orders did not meet the criteria necessary for the USMC to
invoke its authority to condition the extension of such orders on a sanctuary waiver. See 10 U.S.C.
§ 12868(b); see also MCO 1800.11, ch. 1, ¶ 12.a.; MARADMIN 104/13, ¶ 4.C.
28
b. Defendant’s Interpretation of Its Waiver Authority Contravenes the Plain
Language of the Statute.
Assuming the language of Plaintiff’s orders is not dispositive, the Court must determine
the propriety of the USMC’s interpretation of § 12686(b)’s waiver authority as it applies to
extensions of active duty orders for reservists on Medical Hold. See MCO 1001.61A, ch. 3, ¶ 7.
The Court acknowledges the “substantial deference” owed to the military in the governance of its
own affairs. Antonellis, 723 F.3d at 1332 (quoting Dodson v. United States, 988 F.2d 1199, 1204
(Fed. Cir. 1993)); see Voge, 844 F.2d at 779. This deference compounds with the deference the
Court generally owes to an agency’s interpretation of its own regulations and its construction of a
statute Congress charged it with administering. 8 See Wronke, 787 F.2d at 1576 (citing United
States v. Clark, 454 U.S. 555, 565 (1982)); Favreau v. United States, 317 F.3d 1346, 1358–59
(Fed. Cir. 2002) (citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1084),
and United States v. Mead Corp., 533 U.S. 218 (2001)). As substantial as it may be, however, the
deference owed is not without limits. Even where an agency is authorized by Congress to
promulgate rules or regulations, “no such rule or regulation can confer on the agency any greater
authority than that conferred under the governing statute.” Killip v. Off. of Pers. Mgmt., 991 F.2d
8 Neither party’s motion addresses the question of whether—and, if so, what measure of—
deference is owed to the USMC’s interpretation of the waiver authority provided in § 12686(b) as
applied to reservists in a Medical Hold status. The court in Brookins v. United States analyzed
sanctuary waiver policies set forth in a different Marine Corps order under the analysis discussed
in Mead, which applies where Chevron is inapplicable and affords “some” deference to an
agency’s interpretation of a statute based on “the degree of the agency’s care, consistency,
formality, and relative expertness, and . . . the persuasiveness of the agency’s position.” 75 Fed.
Cl. 133, 149 (2007) (quoting Killeen v. Off. of Pers. Mgmt., 382 F.3d 1316, 1321 (Fed. Cir. 2004)
(citations omitted and text omission in original)). Brookins involved distinguishable factual
circumstances and a different legal question—i.e., whether a reservist could voluntarily choose to
waive sanctuary, not the limits of the Secretary’s authority to require a sanctuary waiver. See id.
at 142. Regardless, the Court finds that § 12686 “provides a clear answer,” id. at 141, and thus an
analysis of whether and what deference is owed to the USMC’s contrary interpretation is not
necessary.
29
1564, 1569 (Fed. Cir. 1993) (“Any and all authority pursuant to which an agency may act
ultimately must be grounded in an express grant from Congress.”).
The Court therefore begins, again, with the language of the statute. See Gonzales, 520 U.S.
at 4. Section 12686 consists of two parts: subsection (a) protects reservists who have attained 18
years of active duty service from being involuntarily released from active duty before they become
eligible for retired pay, while subsection (b) authorizes the Secretary to require reservists, who
would otherwise qualify for sanctuary, to waive the protection of subsection (a) for certain active
duty orders that do not exceed 179 days. See 10 U.S.C. §§ 12686(a), (b). The Secretary’s waiver
authority under § 12686(b) is plainly limited only to reservists who meet three criteria. The
reservist must be one who (1) is “to be ordered to active duty (other than for training) under section
12301,” (2) “pursuant to an order that specifies a period of less than 180 days,” and (3) would be
covered by § 12686(a) but for the waiver. Id. § 12686(b). Section 12686(b) also contemplates
when the Secretary (or his duly authorized designee) may exercise his waiver authority. It
specifically allows a waiver as a “condition” of the active duty orders at issue to be executed
“before the [reservist’s] period of active duty begins.” Id. (providing that the Secretary concerned
“may” require that a waiver be executed before the active duty period). The statute does not
expressly state whether a waiver can be executed after the reservist has commenced the active duty
period but the use of permissive language suggests the Secretary has commensurate authority once
a reservist has begun serving on active duty under the orders subject to the waiver.
As relevant here, the statutory text compels two conclusions that support Plaintiff’s
argument. First, contrary to MCO 1001.61A, the language of § 12686(b) does not by its terms
allow the Secretary to condition the extension of Plaintiff’s active duty orders for the purpose of
Medical Hold on execution of a waiver. The waiver provision may be applied only to a reservist
30
who is “to be ordered to active duty (other than for training).” 10 U.S.C. § 12686(b). The use of
the verb “to be” in this phrase “conveys a sense of planning for the future.” Est. of Rubenstein v.
United States, 96 Fed. Cl. 640, 652 (2011) (citing Nat’l Data Corp. & Subsidiaries, 50 Fed. Cl.
24, 30 n.12 (2001)). When combined with the infinitive “ordered” it describes a circumstance
where an active duty order will be issued to the reservist in the future but at the time is merely
anticipated. Congress has indicated through the use of similar language in different sections of
Title 10 that the phrase “ordered to active duty” refers to an order placing a reservist on active
duty, as distinguished from an order retaining a reservist on active duty. Section 12301, to which
§ 12686’s waiver provision explicitly refers, is one such example. Section 12301(d) authorizes
the Secretary to “order a member of a reserve component under his jurisdiction to active duty, or
retain him on active duty, with the consent of that member.” 10 U.S.C. § 12301(d) (emphasis
added). Section 12301(h) also allows for a “member ordered to active duty[,] . . . with the
member’s consent, [to] be retained on active duty, if the Secretary concerned considers it
appropriate” for medical treatment or evaluation. 10 U.S.C. § 12301(h)(2) (emphasis added).
Other sections of the same title include this distinction between the same or similar language. See
10 U.S.C. § 12322 (permitting a uniformed service member who is injured in the line of duty while
performing inactive-duty training to “be ordered to active duty,” and a member who is injured in
the line of duty while performing active duty to “be continued on active duty,” to receive medical
treatment); compare id. § 12323(a) (permitting the Secretary concerned to “retain[] on active
duty,” until completion of a line of duty determination, reservists who are alleged victims of sexual
assault committed while on active duty where the reservist is still serving on active duty,) with id.
§ 12323(b) (permitting the Secretary concerned to “order . . . to active duty,” for the same purpose,
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reservists who are alleged victims of a sexual assault committed while on active duty where the
reservist is no longer on active duty).
Congress’s use of similar “ordered to active duty” language in other parts of the statute,
when juxtaposed with language explicitly addressing retention or continuation on active duty, is
significant. Even more significant is Congress’s choice not to include retention language in the
sanctuary waiver provision, even though it separately referred to active duty orders retaining
reservists in other related sections. The Court cannot ignore the deliberate choices made by
Congress when it drafted the waiver provision. See Russello v. United States, 464 U.S. 16, 23
(1983) (“Where Congress includes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”).
At oral argument, Defendant emphasized that the language of § 12686(b) gives the
Secretary discretion to require a waiver either before an active period begins or during the period
of active duty, as was the case here. Hr’g Tr. 49:17–50:7; see ECF No. 15 at 14, 15. Although
the Court agrees that the statute gives discretion to the Secretary to require execution of a sanctuary
waiver before the period of active duty covered by the waiver or—by implication—during that
same period, that implied authority does not logically extend to the execution of a waiver to cover
future, extended periods. See 10 U.S.C. § 12686(b). Nor has Defendant cited any cases or other
authority supporting that interpretation. Moreover, USMC policy requires that, when sanctuary is
to be waived, the waiver is signed prior to executing the active duty orders. See MCO 1800.11,
ch. 1, ¶ 12.b. Under a plain reading of § 12686(b), the Court, therefore, agrees with Plaintiff that
the USMC could not require a sanctuary waiver as a condition to extend Plaintiff’s active duty
orders to continue him on Medical Hold (a status he was placed in nearly a year prior to his
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separation) where Plaintiff was already serving on active duty with no waiver of sanctuary for
approximately 18 months. 9
Second, even assuming the statutory text were ambiguous, the USMC’s interpretation is
unreasonable because it would render the waiver provision’s temporal limitation superfluous.
Section 12686(b) explicitly limits the Secretary’s waiver authority to an order to active duty that
specifies a period of less than 180 days. 10 U.S.C. § 12686(b). Defendant nonetheless argues that
it can separately require a waiver for any extension of an active duty order for a period of less than
180 days, irrespective of the number of days specified in the original orders or the duration of the
reservist’s total active duty period. See ECF No. 11 at 19; ECF No. 15 at 15. This position is
unreasonable considering the sanctuary waiver provision expressly contemplates only a short-term
“order[] to active duty.” See 10 U.S.C. § 12686(b). The statute’s temporal restriction is effectively
meaningless if each and every extension is treated as an isolated active duty period. See Duncan
v. Walker, 533 U.S. 167, 174 (2001) (“It is [a court’s] duty to give effect, if possible, to every
clause and word of a statute.” (quoting United States v. Menasche, 348 U.S. 528, 538–39 (1955)));
Sharp v. United States, 580 F.3d 1234, 1238 (Fed. Cir. 2009) (rejecting the Government’s statutory
interpretation because courts “should avoid rendering any of the statutory text meaningless or as
mere surplusage”).
The effect of the USMC’s interpretation would both undermine the sanctuary protection
that Congress intended to confer on reservists with lengthy active duty service time and expand
the flexibility Congress afforded the Secretary “to bring [reservists] on active duty for up to 179
9 Defendant argues Plaintiff conceded that “the Corps can set shorter active duty
assignments, even serially, each of which will require a sanctuary waiver.” ECF No. 11 at 19. In
fact, Plaintiff asserted only that “the USMC could have issued [his original] orders for 179 days
or less and required a sanctuary waiver as a condition of issuing the orders.” ECF No. 10 at 23.
The Court does not believe this statement supports Defendant’s broad concession claim.
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days even if those members are in, or would enter, sanctuary . . . during the contemplated period
of service.” Brookins v. United States, 75 Fed. Cl. 133, 144 (2007) (quoting Marine Corps Reserve
Administrative Management Manual, MCO P1001R.1J, ¶ 3109 (1999)). Where Congress has
struck a balance between policy considerations, the Court is bound to uphold the lines it draws.10
See Am. Tobacco Co. v. Patterson, 456 U.S. 63, 77 (1982) (where Congress strikes a balance
between two policies “it is not th[e] Court’s function to upset that balance”); see also Absher v.
United States, 805 F.2d 1025, 1027 (Fed. Cir. 1986).
The USMC’s interpretation also fails to find support in the JAD Memo, which is the sole
legal authority cited by the relevant provision of MCO 1001.61A. The JAD Memo provided a
legal opinion to MMIB-2 about “whether the Marine Corps can require reserve Service members,
approaching 18 years of active duty service, to execute a sanctuary waiver before being placed in
a medical hold status.” AR 217. The two-page memo concluded that there is “no legal objection”
to such requirement, and “it would not be unreasonable or legally objectionable for the Marine
Corps to withhold orders under section 12301(d) if the reservist fails to execute a waiver of
10 The legislative history reflects the policy considerations faced by Congress. In 1956,
Congress created sanctuary protection “to provide some degree of economic security as an
inducement to reservists to stay on active duty, thus reducing unwanted attrition and its attendant
costs to the Government.” Wilson v. United States, 917 F.2d 529, 532 (Fed. Cir. 1990). Through
the waiver authority, codified approximately four decades later, Congress sought to “permit a
reservist who, by virtue of his or her years of service, may qualify for the retirement sanctuary to
serve on active duty for a period of less than 180 days, if he or she waives the retirement sanctuary.”
Brookins, 75 Fed. Cl. at 143 (quoting National Defense Authorization Act for Fiscal Year 1997,
S. Rep. No. 104-267, § 514 (May 13, 1996)). The sanctuary and waiver provisions therefore can
be understood as mutually beneficial, advancing the interests of both reservists and service
branches. Navy regulations similarly reflect a balance of interests. See OPNAVINST 1001.27, ¶
5.c. (describing the balance between the Navy’s need to utilize reservists with unique skill sets and
to fill short-term Navy requirements with the fiscal costs incurred by the Navy when reservists
become eligible for regular retirement pay). Codified as part of this enterprise is the temporal
limitation on the Secretary’s authority to require waiver for active duty orders specifying a period
of less than 180 days. See 10 U.S.C. § 12686(b).
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sanctuary as part of his/her consent to being continued on active duty for medical observation,
evaluation, or treatment.” Id. (listing as references 10 U.S.C. §§ 12301, 12686; OPNAVINST
1001.27 (denoted as a “draft”); and MCO 1800.11).
As explained above, the Court does not disagree that, based on the plain language of
§ 12686(b), the USMC could require a reservist to execute a sanctuary waiver as a condition of
active duty orders for the purpose of Medical Hold but only if those orders fall within the limits of
the Secretary’s waiver authority—i.e., they order a reservist to active duty, for a specified period
of less than 180 days, during which the reservist would otherwise obtain sanctuary. 10 U.S.C.
§ 12686(b). The JAD Memo does not discuss—or even refer to—these limiting criteria; instead,
it describes the sanctuary waiver provision in broad terms that go well beyond the plain language
of the statute. AR 217 (noting that § 12686(b) “provides that the Secretary concerned may require,
as a condition of an order to active duty under [§ 12301], that the member waive the applicability
of [§ 12686(a)]”). To the extent the legal opinion purports to exceed the scope of § 12686(b), it—
as well as the relevant provision of MCO 1001.61A—would be contrary to law, as explained
above.
Likewise lacking is the JAD Memo’s analysis of Navy and USMC policies that purport to
prohibit issuing active duty orders to sanctuary-eligible reservists on Medical Hold absent a
sanctuary waiver. Although recognizing that the Navy does not have a policy that expressly
addresses these circumstances, the memo relies on a draft of OPNAVINST 1001.27, which states
“the Navy’s intent [not] to have members attain a regular retirement from orders written per 10
U.S.C. § 12301(h).” Id. at 218. The final version of this instruction directs Navy Personnel
Command to “ensure that other methods to comply with legal obligations to Sailors are utilized
prior to issuing [§ 12301(h)] orders” to such Sailors. OPNAVINST 1001.27, ¶ 8.g. (emphasis
35
added). It says nothing about the Secretary’s authority to require a sanctuary waiver from
reservists on Medical Hold, nor does it prohibit Navy Personnel Command from issuing orders to
such reservists absent execution of a waiver. See generally OPNAVINST 1001.27. The JAD
Memo also refers to a provision of MCO 1800.11 that states the USMC has no legal obligation to
issue or extend active duty orders that may result in a reservist attaining sanctuary. AR 218. As
Plaintiff notes, however, the memo does not reference—or even mention—the controlling DoD
and USMC policies that obligate the retention of certain reservists, with their consent, on active
duty for the purpose of completing the DES process. ECF No. 12 at 22. Nor does it attempt to
analyze the application of that policy to a situation, such as the one presented by Plaintiff’s case,
where the statute does not authorize the Secretary to condition a reservist’s consent to orders on a
waiver of sanctuary.
In any event, as Plaintiff emphasizes, the JAD Memo ultimately concludes that requiring a
waiver “prior to executing 12301(d) orders for medical observation, evaluation, or treatment”
would not be objectionable. ECF No. 12 at 22 (citing AR 218). Notably, however, MCO
1001.61A is not similarly limited. Rather, it expands upon the scope of the memo by requiring a
sanctuary waiver as a condition of a reservist’s “consent to be continued on active duty” either for
“initial placement [in] or subseqeuent extension” of Medical Hold. MCO 1001.61A, ch. 3, ¶ 7
(emphasis added). Here, of course, the USMC did not require (or even request) that Plaintiff
execute a waiver prior to issuance of his original active duty orders or prior to him being placed
on Medical Hold. See ECF No. 10 at 9, 11–12.
Accordingly, the USMC could not lawfully require Plaintiff to waive sanctuary as a
condition of extending his active duty orders to facilitate his Medical Hold. Because Plaintiff’s
original orders specified an active duty period of 183 days, and subsequent extensions that became
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part of those original orders only lengthened his time on active duty, the Secretary’s statutory
sanctuary waiver authority did not apply to further extension of Plaintiff’s orders. The USMC’s
interpretation to the contrary, including in MCO 1001.61A, is inconsistent with the plain language
of § 12686(b).
C. The USMC’s Unlawful Use of Sanctuary Waiver Authority Directly Caused
Plaintiff’s Separation.
The record establishes that Plaintiff would have obtained sanctuary status but for the
USMC unlawfully conditioning further extension of his active duty orders on the requirement that
he execute a sanctuary waiver. Plaintiff was on track to complete 18 years of active duty service
on March 25, 2017, four days before his modified active duty orders expired. AR 266. As evident
from the exchanges of emails between Plaintiff and various USMC officials, Plaintiff wanted to
remain on active duty for Medical Hold until the conclusion of the disability evaluation process.
See id. at 244–45, 249–50, 262, 263. The only reason he did not consent to further extension of
his orders to facilitate that process was because he respectfully disagreed that the USMC could
condition his orders on execution of a sanctuary waiver. See, e.g., id. at 250; see also Carmichael,
298 F.3d at 1372. The parties have not identified any other term of the proposed extension of his
orders that was in dispute. The USMC presented no alternative option to keep Plaintiff on active
duty short of signing a sanctuary waiver. See, e.g., AR 239, 254, 266; see also Carmichael, 298
F.3d at 1372. And, as explained above, the USMC lacked authority to condition Plaintiff’s orders
in such a manner. Carmichael, 298 F.3d at 1372.
Absent that condition, the Court finds that Plaintiff would have consented to his extended
orders (within the meaning of that term) and, pursuant to both DoD and USMC policy, would have
been entitled to remain on active duty until the completion of his disability evaluation. See DoDI
1241.01, ¶ 3.a.(2); DoDI 1332.18, ¶ 3.h.; MARADMIN 259/04, ¶ 3.D. That evaluation process
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concluded once Plaintiff accepted the PEB’s decision finding him “Fit for Continued Naval
Service,” and the PEB notified the Commandant of the USMC of its final decision. Id. at 450,
451, 453, 456. The Court therefore finds that, had the USMC properly extended his orders,
Plaintiff would have remained on active duty beyond March 25, 2017, at which point he would
have reached sanctuary and could not have been involuntarily released without the Secretary’s
approval. Under an objective standard, Plaintiff has met his burden of demonstrating that he was
involuntarily separated as a direct result of Defendant’s unlawful action. See Roskos, 549 F.2d at
1389–90; Carmichael 298 F.3d at 1372.
* * *
The Court is cognizant that the USMC is tasked with the important responsibility of
effectively managing Reserve manpower both to ensure it can meet mission requirements and to
avoid the unintended impacts, including the expense, of reservists earning regular retirement. See
ECF No. 11 at 18–19; see also, e.g., OPNAVINST 1001.27, ¶ 5. Consistent with that duty, Navy
and USMC policies seek to ensure that reservists “who meet or exceed 18 years of active duty do
so by design and are planned, budgeted additions to the Total Force.” SECNAVINST 1800.2, ¶
3; see OPNAVINST 1001.27, ¶ 5; MCO 1800.11, ¶ 3. Although Defendant may consider the
Court’s judgment here to confer “a windfall conversion to active duty retirement that would be
entirely extraneous” to the purpose of active duty orders for Medical Hold, ECF No. 15 at 9,
Congress has determined that such orders may lead to a reservist attaining sanctuary and has
provided limited authority to the Secretary concerned to condition such orders on a sanctuary
waiver. The role of this Court is to ensure the USMC complied with applicable law and established
procedures, “as it is written—even if . . . some other approach might accord with good policy.”
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Sandifer v. U.S. Steel Corp., 571 U.S. 220, 231 (2014) (quoting Burrage v. United States, 571 U.S.
204, 218 (2014)); see Tippens v. United States, 154 Fed. Cl. 373, 383 (2021).
Of course, even the most carefully planned and artfully drafted policies cannot conceive of
all the possible cases in which a reservist may become eligible for sanctuary. That does not mean
the USMC was without authority or an available method to rectify Plaintiff’s situation. Sanctuary
is, after all, not absolute. It protects reservists with at least 18 years of active duty service from
involuntary release “unless the release is approved by the Secretary.” 10 U.S.C. § 12686(b)
(emphasis added). The USMC would have been free to seek authorization from the Secretary to
involuntarily release Plaintiff once he received his final PEB determination.
In sum, although this Court does not aim to intrude on the USMC’s personnel decisions,
the fact remains that, in seeking to comply with service regulations, it exceeded its statutory waiver
authority in Plaintiff’s case and thus its action was contrary to law.
CONCLUSION
For the above stated reasons, Plaintiff’s Motion for Judgment on the Administrative Record
(ECF No. 10) is hereby GRANTED, and Defendant’s combined Motion to Dismiss and Cross-
Motion for Judgment on the Administrative Record (ECF No. 11) is DENIED. On or before
November 8, 2021, the parties shall file a joint status report proposing appropriate next steps
consistent with this Opinion, including remedies, and a schedule for post-judgment proceedings
should they be necessary.
SO ORDERED.
Dated: November 1, 2021 /s/ Kathryn C. Davis
KATHRYN C. DAVIS
Judge
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