Faerber v. United States

• Court: United States Court of Federal Claims
• Decided: November 1, 2021
• Docket: 20-509
• Status: Published

Opinion

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ______________________________________ ) PETER C. FAERBER, ) ) Plaintiff, ) No. 20-509C ) v. ) Filed: November 1, 2021 ) THE UNITED STATES, ) ) 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.”

3 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

4 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. 5 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.”). 6 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

7 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

8 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. 9 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

10 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

11 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

12 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.

13 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

14 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

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,

31 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

32 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. 33 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). 34 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

36 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

37 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.”

38 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