Hirsch v. United States

• Court: Court of Appeals for the Federal Circuit
• Decided: August 9, 2022
• Docket: 21-2163
• Status: Unpublished

Opinion

Case: 21-2163 Document: 33 Page: 1 Filed: 08/09/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

JONATHAN R. HIRSCH, Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee ______________________

2021-2163 ______________________

Appeal from the United States Court of Federal Claims in No. 1:19-cv-00236-RAH, Judge Richard A. Hertling. ______________________

Decided: August 9, 2022 ______________________

THOMAS ANDREW COULTER, Norton Rose Fulbright US LLP, Washington, DC, argued for plaintiff-appellant.

RICHARD PAUL SCHROEDER, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for defendant-appellee. Also represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, DOUGLAS K. MICKLE; NICHOLAS MORJAL, Liti- gation Division, United States Army Legal Services Agency, Fort Belvoir, VA. ______________________ Case: 21-2163 Document: 33 Page: 2 Filed: 08/09/2022

Before MOORE, Chief Judge, LOURIE and STARK, Circuit Judges. LOURIE, Circuit Judge. Lieutenant Colonel (“LTC”) Jonathan R. Hirsch began serving in the United States Army in 1988. While serving in the Army, LTC Hirsch attended law school. In 2016, the Army removed LTC Hirsch from active status. According to the Army, he had served for 28 years, the maximum al- lowed for lieutenant colonels under 10 U.S.C. § 14507(a) (absent certain exceptions not applicable here). Because LTC Hirsch disagreed with the Army’s calculation of 28 years, he filed a complaint in the United States Court of Federal Claims (“the Claims Court”). In his complaint, he argued that the Army should have excluded the service that he performed concurrently with law school. In support of his argument, LTC Hirsch pointed to 10 U.S.C. § 14706, which provides that certain periods of service are excluded from the Army’s 28-year calculation. The Claims Court de- nied LTC Hirsch’s claim based on its construction of § 14706. Hirsch v. United States, No. 19-236C, 153 Fed. Cl. 345 (2021) (“Decision”). Because the Claims Court erred in construing § 14706, we reverse its decision and remand for further proceedings consistent with this opinion. BACKGROUND This appeal concerns the Army’s removal of LTC Hirsch from active status. We begin with a brief over- view of the statutory framework governing his removal. I Under 10 U.S.C. § 14507(a), an Army reserve officer who holds the grade of lieutenant colonel and is not recom- mended for promotion, “shall . . . be removed from [the Case: 21-2163 Document: 33 Page: 3 Filed: 08/09/2022

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reserve active-status list]” after “complet[ing] 28 years of commissioned service.” 1 When calculating an officer’s removal date, however, the Army need not include every year of service. 2 For ex- ample, 10 U.S.C. § 14706(a)(3) provides a general rule ex- cluding the service that an officer performed while attending an advanced education program (provided that the officer satisfies other relevant requirements, discussed further below). It reads as follows: [A] Reserve officer’s years of service include all ser- vice of the officer as a commissioned officer . . . other than the following: . . . Service after appoint- ment as a commissioned officer of a reserve compo- nent while in a program of advanced education to obtain the first professional degree required for ap- pointment, designation, or assignment to a profes- sional specialty, but only if that service occurs before the officer commences initial service on active duty or initial service in the Ready Reserve in the specialty that results from such a degree. § 14706(a)(3) (emphases added). A separate subsection of the statute limits the scope of the exclusion in § 14706(a)(3). Specifically, 10 U.S.C. § 14706(b) provides that: The exclusion under subsection (a)(3) does not ap- ply to service performed by an officer who previously served on active duty or participated as a member of the Ready Reserve in other than a student status

1 The statute also encompasses certain reserve offic- ers in the Navy, Air Force, and Marine Corps. 2 The parties also refer to “mandatory removal” as “mandatory retirement.” Case: 21-2163 Document: 33 Page: 4 Filed: 08/09/2022

for the period of service preceding the member’s ser- vice in a student status. § 14706(b) (emphases added). With this background in mind, we now turn to LTC Hirsch’s Army service. II From August 1984 to May 1988, LTC Hirsch was en- rolled in the Reserve Officers’ Training Corps (“ROTC”) at Georgetown University. Decision, 153 Fed. Cl. at 348. On May 27, 1988, he was commissioned as an officer in the United States Army Reserve. Id. From May 1988 to Sep- tember 1992, he served as a Transportation Officer in var- ious military statuses, including the Individual Ready Reserve and active duty. Id. From September 1992 to May 1995, LTC Hirsch at- tended law school at the Louisiana State University Paul M. Hebert Law Center. Id. He did not attend law school under orders from the military. Id. Importantly, while at- tending law school, LTC Hirsch continued to serve as a re- serve officer. Id. From September 1995 to May 2016, LTC Hirsch served in the Judge Advocate General’s (“JAG”) Corps. Id. On June 1, 2016, 28 years after the Army commis- sioned LTC Hirsch as an officer, it removed him from active status. Id. at 347. When calculating his removal date, the Army included the (approximately) three years that he served as a reserve officer during law school from 1992 to 1995. Id. at 348. LTC Hirsch disagreed with the Army’s calculation and petitioned the Army Board for Correction of Military Records (“the Board”). Id. According to LTC Hirsch, the Army should have excluded those years of service pursuant to § 14706(a)(3). J.A. 140. In particular, he pointed to § 14706(a)(3)’s language that an officer’s ser- vice “while in a program of advanced education” is ex- cluded. Accordingly, LTC Hirsch requested that the Army Case: 21-2163 Document: 33 Page: 5 Filed: 08/09/2022

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adjust his mandatory removal date from June 1, 2016 to June 1, 2019. Decision, 153 Fed. Cl. at 348. The Board denied LTC Hirsch’s petition in view of its construction of § 14706(a)(3). 3 Id. The Board acknowl- edged § 14706(a)(3)’s language that an officer is entitled to exclude “service . . . while in a program of advanced educa- tion.” J.A. 144, 146–47. It explained, however, that LTC Hirsch failed to address the sentence’s final clause: “but only if that service occurs before . . . initial service. . . in the specialty that results from such a degree.” Id. In the Board’s view, that clause requires an officer’s “initial service” to be in a specialty that results from the advanced degree. Id. (emphasis added). Accordingly, because LTC Hirsch’s initial service was in the Transportation Corps, which was not a specialty that resulted from his law de- gree, the Board denied his claim. Id.; J.A. 149. The Board also addressed § 14706(b), interpreting it to mean that the exclusion 4 does not apply to an officer’s service preceding enrollment in advanced education. J.A. 146. Following the Board’s denial, LTC Hirsch filed a com- plaint in the Claims Court. In his complaint, he again ar- gued that he was entitled to the exclusion in § 14706(a)(3). Decision, 153 Fed. Cl. at 350. Both LTC Hirsch and the government filed motions for judgment on the administra- tive record. Id. at 349. The Claims Court granted judgment in favor of the gov- ernment. Id. at 357. The court first observed that § 14706(a)(3) provides a general rule excluding the service

3 The Claims Court previously remanded LTC Hirsch’s appeal to the Board twice regarding matters not relevant to this appeal. Decision, 153 Fed. Cl. at 348–49. 4 “The exclusion” refers to the exclusion in § 14706(a)(3). Case: 21-2163 Document: 33 Page: 6 Filed: 08/09/2022

that an officer performed while enrolled in advanced edu- cation. Id. at 350. It further acknowledged that both par- ties offered differing interpretations of § 14706(a)(3)’s scope. Id. The court, however, declined to construe § 14706(a)(3); in its view, a separate subsection of the stat- ute barred LTC Hirsch’s service from being excluded— § 14706(b). Id. at 352. In particular, the Claims Court focused on § 14706(b)’s language that “the exclusion under [§ 14706(a)(3)] does not apply to service performed by an officer who previously served [on active duty or in the Ready Reserve] . . . for the period of service preceding the member’s service in a stu- dent status.” § 14706(b); Decision, 153 Fed. Cl. at 354–55. In the court’s view, § 14706(b) provides that the exclusion does not apply to an officer who served (on active duty or in the Ready Reserve in other than a student status) before enrolling in advanced education. Decision, 153 Fed. Cl. at 353–54. The court specifically observed that: Subsection (b) contains no punctuation indicating a break. It first provides that the provision limits the exclusion found in subsection (a)(3): “The exclu- sion under subsection (a)(3) does not apply to ser- vice performed by an officer . . . .” 10 U.S.C. § 14706(b). What follows is a single restrictive rela- tive clause modifying the noun “officer” and defin- ing which officers cannot exclude their service under subsection (a)(3): those “who previously served on active duty or participated as a member of the Ready Reserve in other than a student status for the period of service preceding the member’s service in a student status.” Id. at 354. Because LTC Hirsch served as a Transportation Officer before attending law school, the court determined that he was not entitled to have his service during law school Case: 21-2163 Document: 33 Page: 7 Filed: 08/09/2022

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excluded. Id. at 357. 5 Accordingly, it concluded that the Army correctly calculated LTC Hirsch’s mandatory re- moval date and granted the government’s motion for judg- ment on the administrative record. Id. LTC Hirsch moved for reconsideration. The court denied his motion. Hirsch v. United States, 154 Fed. Cl. 24 (2021). LTC Hirsch ap- pealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). DISCUSSION This court reviews a decision of the Claims Court “granting or denying a motion for judgment on the admin- istrative record de novo, applying the same standard of re- view as the [Claims Court].” Prestonback v. United States, 965 F.3d 1363, 1368 (Fed. Cir. 2020) (citing Palantir USG, Inc. v. United States, 904 F.3d 980, 989 (Fed. Cir. 2018)). “Accordingly, we will not disturb the decision of the Board unless it is arbitrary, capricious, contrary to law, or unsup- ported by substantial evidence.” Id. (citing Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005)). We review the Claims Court’s interpretation of a stat- ute de novo. Flowers v. Sec’y of Dep’t of Health & Human Servs., 49 F.3d 1558, 1559–60 (Fed. Cir. 1995) (citing Matos v. Sec’y of Dep’t of Health & Human Servs., 35 F.3d 1549, 1552 (Fed. Cir. 1994)). “[A]ll statutory construction cases . . . begin with the language of the statute.” Momenta Pharms., Inc. v. Amphastar Pharms., Inc., 686 F.3d 1348, 1353–54 (Fed. Cir. 2012) (quoting Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (alterations in original)). We first “determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Id. (quoting Robinson v. Shell Oil Co.,

5 The Claims Court recognized that its interpreta- tion of § 14706(b) differed from the Board’s interpretation. Decision, 153 Fed. Cl. at 353. Case: 21-2163 Document: 33 Page: 8 Filed: 08/09/2022

519 U.S. 337, 340 (1997)). “Whether the text of a statute is plain or ambiguous ‘is determined by reference to the lan- guage itself, the specific context in which the language is used, and the broader context of the statute as a whole.’” Id. at 1354 (quoting Robinson, 519 U.S. at 341). Our “in- quiry ceases ‘if the statutory language is unambiguous and the statutory scheme is coherent and consistent.’” Barn- hart, 534 U.S. at 450 (quoting Robinson, 519 U.S. at 340). The parties’ dispute centers on the construction of § 14706(a)(3) and (b). To prevail, LTC Hirsch must estab- lish that he is entitled to the exclusion in § 14706(a)(3) and not barred from that exclusion by § 14706(b). Accordingly, we address each subsection in turn. I As in any case involving statutory interpretation, we begin with the language of the statute itself. See Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). Under § 14706(a)(3), for an officer’s service to qualify for the exclusion, it must have occurred: (1) “after [the officer’s] appointment as a commissioned officer of a reserve component,” (2) “while [the officer was] in a pro- gram of advanced education to obtain the first professional degree required for appointment, designation, or assign- ment to a professional specialty,” and (3) “before the officer commences initial service on active duty or initial service in the Ready Reserve in the specialty that results from such a degree.” Both parties agree that LTC Hirsch’s service during law school from 1992 to 1995 satisfies the first two clauses of § 14706(a)(3) because it occurred (1) after he was ap- pointed as a commissioned officer and (2) while he was in an advanced education program—law school. Accordingly, they focus on the subsection’s third clause: “before the of- ficer commences initial service . . . in the specialty that re- sults from such a degree.” § 14706(a)(3). Case: 21-2163 Document: 33 Page: 9 Filed: 08/09/2022

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The government proposes a broad interpretation of the third clause. According to the government, to benefit from the exclusion in § 14706(a)(3), an officer’s “initial service” must be “in the specialty that results from the advanced degree.” Appellee’s Br. 36 (emphasis added). Thus, be- cause LTC Hirsch initially served in the Transportation Corps (not a specialty resulting from his law degree), the government argues that he is ineligible for the exclusion. LTC Hirsch responds that the government’s construc- tion contradicts the plain language of the statute. Specifi- cally, he argues that the government reads the word “initial service” in isolation, without accounting for the fi- nal clause—“in the specialty that results from such a de- gree.” Appellant’s Br. 32. Thus, according to LTC Hirsch, his “initial service” in the Transportation Corps is irrele- vant; that service did not “result[]” from his law degree. Id. at 36. We agree with LTC Hirsch that the government’s con- struction contradicts the statute’s plain language. Here, “the language at issue has a plain and unambiguous mean- ing with regard to the particular dispute in the case.” Barnhart, 534 U.S. at 450 (quoting Robinson, 519 U.S. at 340). It provides, in relevant part, that to obtain the exclu- sion, a specific sequence of events must occur: an officer must serve while obtaining a degree from a “program of ad- vanced education” and only then “initially serve” in “the specialty that results from” that degree. LTC Hirsch satis- fied those requirements. He served in the Army while at- tending law school and only then initially served in a specialty resulting from his law degree, i.e., the JAG Corps. The government’s alternative construction is unsup- ported by the plain language of the statute. The govern- ment places much weight on the word “initial,” emphasizing that an officer’s “initial” service must be in the “specialty resulting from the advanced degree.” But the government reads the word “initial” in isolation, Case: 21-2163 Document: 33 Page: 10 Filed: 08/09/2022

ignoring the following clause: “in the specialty that results from such a degree.” § 14706(a)(3). That clause serves an important purpose: it qualifies the type of “initial service” that is relevant, namely, service in the specialty resulting from the advanced degree. In effect, the government urges us to read that clause out of the statute entirely. We de- cline to do so. See Hellebrand v. Sec’y of Dep’t of Health & Hum. Servs., 999 F.2d 1565, 1571 (Fed. Cir. 1993) (“A stat- ute is to be construed in a way which gives meaning and effect to all of its parts.” (citing United States v. Nordic Vil- lage, Inc., 50 U.S. 30, 35–36 (1992))). Accordingly, for pur- poses of our analysis here, it is immaterial that LTC Hirsch “initially served” in the Transportation Corps before at- tending law school; that service was not in a specialty re- sulting from his law degree. The government also insists that LTC Hirsch’s con- struction “would render the word ‘[initial]’ insignificant, if not wholly superfluous.” Appellee’s Br. 36. It argues that LTC Hirsch’s construction does not give effect “to every clause and word of a statute.” Id. (quoting United States v. Menasche, 348 U.S. 528, 538–39 (1955)). We disagree with the government’s argument. As is clear from the context of § 14706(a)(3) and the surrounding language, the word “initial” refers to the officer’s first em- ployment in the “specialty that results from” the advanced degree. Here, that would mean LTC Hirsch’s initial service in the JAG Corps. Accordingly, we conclude that LTC Hirsch is eligible for the exclusion in § 14706(a)(3). Because the government ar- gues that LTC Hirsch is independently barred from the ex- clusion under § 14706(b), we address that subsection next. II Section 14706(b) provides that: The exclusion under subsection (a)(3) does not ap- ply to service performed by an officer who previously Case: 21-2163 Document: 33 Page: 11 Filed: 08/09/2022

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served on active duty or participated as a member of the Ready Reserve in other than a student status for the period of service preceding the member’s ser- vice in a student status. § 14706(b) (emphases added). The government reads § 14706(b) to bar a particular category of officers from the exclusion, namely, officers who previously served (on active duty or in the Ready Reserve) before enrolling in advanced education. In support of its construction, the government largely repeats the Claims Court’s analysis, explaining that § 14706(b) contains a “re- strictive relative clause” defining which category of officers are ineligible for the exclusion: those “who previously served . . . for the period of service preceding the member’s service in a student status.” Appellee’s Br. 26 (quoting De- cision, 153 Fed. Cl. at 354). Accordingly, because LTC Hirsch previously served in the Transportation Corps prior to attending law school, the government contends that he is ineligible for the exclusion. LTC Hirsch responds that the Army misconstrues § 14706(b). According to LTC Hirsch, § 14706(b) does not bar a particular “category of officers” from invoking the ex- clusion. Appellant’s Rep. Br. 18–19. Rather, it bars a par- ticular “category of service,” namely, “the period of service preceding the member’s service in a student status.” § 14706(b). In other words, under LTC Hirsch’s construc- tion, the exclusion does not apply to an officer’s service be- fore the advanced education program. 6 Here, that would mean the period that LTC Hirsch spent as a Transporta- tion Officer before law school, from 1988 to 1992.

6 LTC Hirsch does not dispute that those four years should count toward his total years of service. Rather, he contends that the years of service during law school should be excluded. Case: 21-2163 Document: 33 Page: 12 Filed: 08/09/2022

We agree with LTC Hirsch’s construction of § 14706(b). Under the plain and natural reading of the statute, § 14706(b) provides that the exclusion does not ap- ply to an officer’s service before the advanced education program. Specifically, § 14706(b) first provides that the ex- clusion does not apply to a specific period of service, namely, “service performed by an officer who previously served . . . .” It then clarifies which period of service: that which “preced[es] the member’s service in a student sta- tus.” § 14706(b). The government’s construction, on the other hand, is inconsistent with the plain language of the statute. Con- trary to the government’s argument, § 14706(b) does not bar a particular category of officers from invoking the ex- clusion. If that were the case, the statute would state that the exclusion does not apply to “an officer who previously served . . . .” There would be no reason for it to specify that the exclusion does not apply to “service performed by an of- ficer who previously served . . . .” See id. (emphasis added). Similarly, the government’s construction would also render the last clause of § 14706(b)—“for the period of ser- vice preceding the member’s service in a student status”— superfluous. Id. More specifically, if, as the government contends, the statute bars an officer who “previously served” before enrolling in advanced education, then it would have stated so. There would be no need for it to fur- ther provide “for the period of service preceding the mem- ber’s service in a student status.” Id. Indeed, the Claims Court itself acknowledged that, under the government’s construction, the final clause “could be deleted without changing the meaning because the provision already uses the word ‘previously.’” Decision, 153 Fed. Cl. at 355. It similarly explained that the government’s construction was “not ideal, because it produces repetitive meaning Case: 21-2163 Document: 33 Page: 13 Filed: 08/09/2022

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within the provision.” 7 Id. We agree with the court’s ob- servations. The government makes several additional arguments, all unpersuasive. First, the government argues that the “legislative history of 10 U.S.C. § 14706 precludes LTC Hirsch from the exclusion.” Appellee’s Br. 47–48 (cap- italization modified). Specifically, the government points to earlier versions of the statute that omitted the final clause, “for the period of service preceding the member’s service in a student status.” See H.R. 1401 at 39, 106th Cong. § 514 (1999); S. 1059 at 135–36, 106th Cong. § 519 (1999). 8 According to the government, those earlier ver- sions conveyed Congress’s intent to preclude officers with service prior to their advanced education from the exclu- sion. We disagree with the government. “Absent a clearly expressed legislative intention to the contrary, [the stat- ute’s] language must ordinarily be regarded as conclusive.” See Consumer Prod. Safety Comm’n, 447 U.S. at 108. Here, the government fails to point to a legislative intention con- trary to the statute’s plain language. Certainly, earlier versions of the statute omitted the final clause, “for the pe- riod of service preceding the member’s service in a student status.” Importantly, however, Congress did not enact those earlier versions. Instead, it enacted a version that included the final clause. Accordingly, we must assume that Congress added this language with a purpose, namely, to clarify which period of service is not subject to the exclu- sion. See Taylor v. United States, 495 U.S. 575, 597 (1990)

7 The court still determined that the government’s construction was “the most natural syntactical reading of the language.” Decision, 153 Fed. Cl. at 355. 8 Available at https://www.congress.gov/106/bills/ hr1401/BILLS-106hr1401ih.pdf and https://www.con- gress.gov/106/bills/s1059/BILLS-106s1059pp.pdf. Case: 21-2163 Document: 33 Page: 14 Filed: 08/09/2022

(“We must assume that Congress had a purpose in adding the word ‘burglary’ to [the statute].”); GPX Int’l Tire Corp. v. United States, 678 F.3d 1308, 1312 (Fed. Cir. 2012) (“[A] statute cannot be interpreted in a manner that would ‘ne- gate[] its recent revision, and indeed would render it [] largely meaningless.’”) (quoting Rumsfeld v. Forum for Acad. & Institutional Rts., 547 U.S. 47, 57–58 (2006) (al- terations in original)). Moreover, the government’s inter- pretation under which “the final phrase could be deleted without changing the meaning,” Decision, 153 Fed. Cl. at 355, is inconsistent with the legislative history. Second, the government contends that LTC Hirsch’s construction is illogical. According to the government, the statute already clarifies that the exclusion applies to an of- ficer’s service during an advanced education program (as long as the officer’s service meets additional requirements). Thus, in the government’s view, it would be pointless for the statute to further clarify that the exclusion does not apply to an officer’s service before the advanced education program. We disagree with the government. LTC Hirsch’s con- struction makes sense in view of “the broader context of the statute as a whole.” Momenta Pharms., 686 F.3d at 1354 (quoting Robinson, 519 U.S. at 341). As explained above, § 14706(a)(3) provides that the exclusion applies to an of- ficer’s service during an advanced education program (sub- ject to additional requirements). However, some subset of officers such as LTC Hirsch may have also served prior to attending an advanced education program. Sec- tion 14706(b) makes clear that such prior service is not also subject to the exclusion. The government’s argument is thus unpersuasive. Accordingly, we construe § 14706(b) to provide that the exclusion does not apply to “the period of service preceding the member’s service in a student Case: 21-2163 Document: 33 Page: 15 Filed: 08/09/2022

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status.” 9 Here that encompasses LTC Hirsch’s service in the Transportation Corps. In summary, because LTC Hirsch satisfies both the re- quirements of § 14706(a)(3) and § 14706(b), he is entitled to exclude his service during law school. CONCLUSION We have considered the government’s remaining argu- ments but find them unpersuasive. For the foregoing rea- sons, we reverse the Claims Court’s judgment and remand for further proceedings consistent with this opinion. REVERSED AND REMANDED COSTS Costs to appellant.

9 Although not dispositive, this construction com- ports with the Army’s regulation concerning chaplain can- didates. See Army Reg. 165-1, 7-5(a).