Williams v. United States

• Court: United States Court of Federal Claims
• Decided: March 5, 2021
• Docket: 10-263
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ___________________________________ ) RICHARD R. WILLIAMS, ) ) Plaintiff, ) ) v. ) No. 10-cv-263C ) THE UNITED STATES, ) Filed: March 5, 2021 ) Defendant. ) ___________________________________ )

MEMORANDUM OPINION AND ORDER

Plaintiff Richard R. Williams seeks an order remanding this case to the Assistant Secretary

of the Navy (Manpower & Reserve Affairs) (“ASN”) to consider arguments and evidence Mr.

Williams submitted during a prior remand in 2015. Mr. Williams argues that the ASN’s remand

decision failed to acknowledge and respond to his submissions, and as such failed to comply with

the Court’s August 21, 2015 remand order. The Government argues that the ASN’s decision fully

complied with the Order and that the case is ripe for judicial review. For the reasons discussed

below, the Court GRANTS-IN-PART and DENIES-IN-PART Plaintiff’s Motion.

I. BACKGROUND

A. Facts and Procedural History

The facts of this case have been thoroughly summarized in prior orders of this Court and

require only brief treatment here. In March 2005, a Board of Inquiry (“BOI”) recommended that

Mr. Williams be separated from the Marine Corps after he was convicted by a court-martial of

charges related to adultery and conduct unbecoming an officer. Mem. Op. & Order (May 23,

2014) at 5-6, ECF No. 29. During the proceeding, the BOI also considered two prior acts of misconduct by Mr. Williams in 1999 and 2002. Id. at 5-6. The ASN ultimately approved the

Board’s recommendation, and Mr. Williams was discharged on May 13, 2005, three days before

he would have been eligible for retirement. Id. at 8.

In 2008, Mr. Williams challenged the BOI’s recommendation before the Board for

Correction of Naval Records (“BCNR”). The BCNR denied his application, concluding, inter

alia, that the BOI did not commit an error by considering Mr. Williams’s prior misconduct. Id. at

9, 14. In doing so, the BCNR rejected the advisory opinion of the office of the Staff Judge

Advocate to the Commandant of the Marine Corps (“SJACMC”), which argued that Mr.

Williams’s misconduct in 1999 was time barred by Secretary of Navy Instruction

(“SECNAVINST”) 1920.6B, the Navy’s regulation for administrative separation of officers in

place at the time of Mr. Williams’s BOI. Id. at 8-9 (relying on a decision in Siefert v. Winter, 555

F. Supp. 2d 3 (D.D.C. 2003) that interpreted 1920.6B). Under the prior conduct limitation of

1920.6B, “[p]erformance or conduct identified more than 5 years prior to the initiation of

processing for separation under paragraph 2 of this enclosure shall not form the basis for

processing under this enclosure.” SECNAVINST 1920.6B, encl. (4), ¶ 10.e. (Dec. 13, 1999).

Mr. Williams sought review in this Court in early 2010, and the case proceeded to

dispositive motions. In 2014, the Court issued an order denying the Government’s motion for

judgment on the administrative record, granting-in-part Mr. Williams’s cross-motion, and

remanding the case to the BCNR for further explanation of its decision, including the grounds for

its interpretation of 1920.6B’s prior conduct limitation. See ECF No. 29 at 19. On remand, a

different BCNR panel issued a decision agreeing with the original panel and providing the further

explanation requested by the Court. Specifically, it explained that 1920.6B prohibits a Show Cause

Authority from basing its decision to initiate separation processing on an officer’s time-barred

2 conduct; it does not prohibit a BOI from considering such conduct in determining whether to

separate or retain the officer. See BCNR Decision on Remand at 2-3, ECF No. 33.

Following the first remand, the parties began briefing a second round of dispositive

motions. Before briefing concluded, the parties jointly moved for a second remand, this time to

the ASN. See Jt. Mot. for Remand, ECF No. 65. The parties jointly proposed, and the Court

approved, several issues for the ASN to consider and resolve. See id. at 3-4; see Order (Aug. 21,

2015), ECF No. 66; see also Jt. Mot. for Permission to Communicate Issues to ASN, ECF No. 68;

Order (Oct. 13, 2015), ECF No. 69. Those issues included, as pertinent here, that the ASN

“consider any information provided . . . by Mr. Williams through counsel on remand, such

information to be submitted on or by September 20, 2015.” ECF No. 66 at 2.

On September 18, 2015, Mr. Williams’s counsel submitted a letter to the ASN setting forth

several arguments relating to the alleged legal errors and injustices committed by the BOI and

BCNR. See Pl.’s R. 52(f)(1) Submission, encl. (1), ECF No. 71-1. Counsel submitted a

supplement to his letter on September 28, 2015, which included a BOI script published in the

Marine Corps Manual for Legal Administration (“LEGADMINMAN”), MCO P5800.16A, Fig. 4-

20 (Feb. 10, 2014). See Pl.’s R. 52(f)(1) Submission, encl. (2), ECF No. 71-2. Counsel asserted

that the script interprets the substantially similar prior conduct limitation found in SECNAVINST

1920.6C, which superseded 1920.6B in December 2005, as prohibiting a BOI from considering—

for any reason—conduct occurring five years before the initiation of processing for separation.

See id. at 3. The script states, in relevant part:

SRMBR: [Read if performance or conduct identified more than five years prior to the initiation of processing for separation has been introduced] The board is advised that SECNAVINST 1920.6C imposes a limitation on considering performance or conduct identified more than five years prior to the initiation of processing for separation. . . . The board will affirmatively state on the findings and recommendations worksheet that the board did not consider such evidence.

3 Id. at 6. Mr. Williams’s counsel did not seek additional time to submit the script after the

September 20 deadline.

The ASN issued his remand decision on November 18, 2015. See ASN’s Mem. for the

U.S. Court of Federal Claims, ECF No. 70. The decision responded in turn to each issue that the

Court directed the ASN to consider. This included, as discussed more fully below, a section

responding to the legal arguments raised in counsel’s September 18 letter. Id. at 9-11. The

decision did not address the BOI script provided in counsel’s September 28 supplement. In sum,

with respect to the issues posed by the Court, the ASN did not find procedural or substantive error

by the BCNR or BOI, nor did he find injustice in Mr. Williams’s separation.

B. Plaintiff’s Motion

Unsatisfied with the ASN’s decision, Mr. Williams noted his objections with the Court.

See Pl.’s R. 52.2(f)(1) Submission, ECF No. 71. He subsequently filed the instant Motion for

Remand, in accordance with the Court’s briefing order (ECF No. 75). The Motion raises one

ground for remand—that the ASN failed to consider and respond to counsel’s submissions as

required by the Court’s second remand order. See Pl.’s Mot. for Remand at 7-8, ECF No. 76.

In opposition, the Government argues that the ASN fully addressed the issues raised in the

September 18 letter and that the Court should disregard counsel’s untimely submission of the BOI

script. See Def.’s Opp’n to Pl.’s Mot. for Remand at 1, ECF No. 80. Assuming that the script is

considered, the Government argues that the script does not warrant remand because it was not in

effect at the time of Mr. Williams’s BOI, does not undermine the ASN’s decision, and, in any

event, is not binding on the ASN’s interpretation of 1920.6B. Id. at 8-9.

Mr. Williams’s Reply largely takes issue with the merits of the ASN’s decision and raises,

for the first time, new arguments related to his claim that the BCNR did not have authority to

4 decide his case by delegation. See Pl.’s Reply Mem. in Support of Mot. for Remand at 6-7, ECF

No. 81. It also reiterates Mr. Williams’s primary ground for remand. In particular, the Reply

argues that the ASN acted arbitrarily and capriciously by failing to consider the BOI script, which

Mr. Williams contends is highly probative to the question of whether the BOI improperly

considered time-barred conduct. See id. at 12-14.

During oral argument on Plaintiff’s Motion, the Court asked the Government to locate, if

possible, any similar script published at the time of Mr. Williams’s BOI. The Government reported

that, prior to 2014, BOIs were conducted using either local, proceeding-specific scripts or a Navy

script promulgated through U.S. Navy Judge Advocate General Instructions (“JAGINST”). See

Def.’s Status Report at 1, ECF No. 86. It indicated that the JAGINST in effect in 2005 resides on

a server in the Navy archives and that retrieving it would take several additional weeks. Id. The

Government offered, in the alternative, a verbatim transcript of Mr. Williams’s BOI proceeding to

determine what script, if any, was used. Id. at 1-2. This prompted a dispute that played out in

competing status reports about whether the transcript, to which Mr. Williams claims he had no

access and which is not part of the Administrative Record, warrants remand. See Pl.’s Status

Report, ECF No. 87; Def.’s Response to Pl.’s Sept. 25, 2017 Status Report, ECF No. 88. Without

deciding the issue, the Court ordered the Government to file the verbatim BOI transcript. See

Order, ECF No. 89; see Def.’s Notice of Compliance, ECF No. 90 (attaching transcript).

The matter was transferred to the undersigned on December 21, 2020. The parties

indicated in a telephonic status conference on February 9, 2021 that additional briefing related to

Plaintiff’s Motion is unnecessary. The Motion is therefore ripe for decision.

5 II. DISCUSSION

This Court has authority “to remand appropriate matters to any administrative or executive

body or official with such direction as it may deem proper and just.” 28 U.S.C. § 1491(a)(2); see

RCFC 52.2(a). The Supreme Court has held that “remand to [an] agency for additional

investigation and explanation” is appropriate when “the agency has not considered all relevant

factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis

of the record before it.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985).

A. Whether Remand is Appropriate for the ASN to Consider and Respond to Plaintiff’s Submissions.

Plaintiff’s Motion contends that the ASN failed to consider the arguments and evidence

submitted by Mr. Williams’s counsel on September 18 and 28, 2015, pursuant to the Court’s

second remand order. See ECF No. 76 at 7-8. Mr. Williams argues that remand is therefore

appropriate to ensure compliance with that order and to facilitate proper judicial review of the

ASN’s decision. See id. The Court evaluates Plaintiff’s claim in the context of each submission.

1. Plaintiff’s September 18 Letter

Although the ASN’s decision did not cite or specifically refer to the September 18 letter, it

summarized in Section (c)—entitled “Consider any information provided . . . by Mr. Williams

through counsel on remand”—each of the legal arguments raised in the letter. See ECF No. 70 at

9. The decision also, on the whole, responded to these arguments.

The September 18 letter identified four issues for the ASN to consider. First, the letter

contended that the BCNR was required to refer Mr. Williams’s case to the ASN for final decision

because the Board recommended a decision contrary to the SJACMC’s advisory opinion. See ECF

No. 71-1 at 1-2 (citing encl. (1), § 6.e.(1)(a) of SECNAVINST 5420.193, the Navy’s regulation

governing delegation of authority to correct certain naval records, and an ASN memorandum dated

6 September 4, 2014 interpreting that provision). In response, the ASN explained that the 2014 ASN

memorandum cited by Mr. Williams incorrectly interpreted the relevant provision of 5420.193,

which by its terms applies only to cases—unlike Plaintiff’s—where the BCNR recommends

corrective action. See ECF No. 70 at 1-2.

Next, the letter argued that the BCNR remand panel was improperly comprised of three

retired Marine Corps officers who were not “civilians” as contemplated by 10 U.S.C. § 1552. See

ECF No. 71-1 at 2-3. The ASN rejoined, explaining that each of the panel members was employed

in a civil service position in the Department of the Navy and, as such, was a “civilian[] of the

executive part of that military department” within the meaning of § 1552. See ECF No. 70 at 9-

10. To address Mr. Williams’s claim that the composition of the panel was irregular, the decision

attached a declaration of the Executive Director of the BCNR who described generally how BCNR

panels are randomly assigned and specifically how Mr. Williams’s remand panel was selected.1

See id. at 12-13.

The September 18 letter also argued that the BCNR inappropriately considered Mr.

Williams’s prior misconduct, contrary to SECNAVINST 1920.6B and the Siefert decision relied

on in the SJACMC’s advisory opinion. See ECF No. 71-1 at 3-5. The ASN disagreed, and his

decision set forth, inter alia, the ASN’s interpretation of 1920.6B’s prior conduct limitation and

the reasons why he believed the Seifert decision (and by extension the advisory opinion) was

incorrect. See ECF No. 70 at 2-7.

1 Plaintiff also noted allegations by a former BCNR employee, James Exnicios, as further proof of potential impropriety in the BCNR remand proceeding. See ECF No. 71-1 at 3 n.2. The ASN responded to Mr. Exnicio’s allegations in a separate section of the decision, relying on two attached declarations. See ECF No. 70 at 11, 14-24. 7 Finally, the letter argued that Mr. Williams’s separation departed from prior practice, citing

other cases involving similar misconduct where the officers were permitted to retire. See ECF No.

71-1 at 5-6. The ASN responded by explaining that the BCNR is not an investigative body and

reviews applications on a case-by-case basis; as a result, comparator cases are typically irrelevant

to its fact-specific decisions. See ECF No. 70 at 8-9, 11. He acknowledged the existence of two

of the three cases cited by counsel. Id. at 8-9. The ASN also referred to the case of the service

member with whom Mr. Williams committed adultery, noting the BCNR’s finding that she

received harsher treatment than Mr. Williams. Id. at 9.

In comparing the September 18 letter and the ASN’s decision, the Court is not left with the

impression that the ASN failed to review, consider, acknowledge, or address the legal arguments

raised on remand. And although Mr. Williams asserts myriad reasons why he disagrees with the

ASN’s explanations, those challenges can be properly considered by the Court at the merits phase.

Accordingly, the Court finds that remanding the matter for the ASN to further consider and respond

to the September 18 letter would not serve a useful purpose. Corus Staal BV v. United States, 502

F.3d 1370, 1374 (Fed. Cir. 2007).

2. Plaintiff’s September 28 Letter Attaching the BOI Script

Conversely, there is no dispute that the ASN’s decision does not specifically address the

BOI script. Nor does it indicate whether the ASN reviewed or considered the script. Instead, the

Government argues that a remand is not warranted because the ASN’s decision addressed the

general question of whether the BOI properly considered Mr. Williams’s prior misconduct. See

ECF No. 80 at 8. According to the Government, the BOI script adds nothing to this “well-worn

argument.” Id. The Court disagrees.

8 To be sure, the ASN’s decision discussed at length Mr. Williams’s claim that the BOI acted

contrary to SECNAVINST 1920.6B by considering his prior misconduct. See ECF No. 70 at 2-7.

The ASN explained that 1920.6B’s prior conduct limitation does not prohibit a BOI from

considering such “other evidence of performance or conduct during the separation process on the

issue of retention or separation,” rather it prevents time-barred conduct from being used as “the

basis for initiating processing for separation.” Id. at 2. The ASN further confirmed, after

consultation with appropriate officials, that this interpretation is consistent with the current and

longstanding practice of both the Marine Corps and Navy. See id. As proof of that practice, the

ASN cited a consistent provision of the Marine Corps Separation and Retirement Manual

(“MARCORSEPMAN”) regarding the BOI’s consideration of prior conduct evidence. See id. at

2-3 (citing MCO P1900.16F, ¶ 1004.4(a)(2) (July 18, 2003)). But the ASN’s decision failed to

reconcile, or even acknowledge, the possibly inconsistent interpretation found in the BOI script,

which is published in another Marine Corps manual (i.e., the LEGADMINMAN).

Contrary to the Government’s argument, the BOI script is not entirely irrelevant. Although

the BOI script was published after Mr. Williams’s 2005 BOI and refers to a revised instruction

(1920.6C) that was not then in effect, the material language of the prior conduct limitation

remained substantially unchanged from 1920.6B to 1920.6C.2 Moreover, the Government

indicated that, at the time of Mr. Williams’s 2005 BOI, a different script published in the JAGINST

existed. See ECF No. 86 at 1. On the current record, it is not clear whether the JAGINST script

2 SECNAVINST 1920.6C provides that “[p]erformance or conduct identified more than 5 years prior to the initiation of processing for separation under paragraph 3 of this enclosure shall not form the basis for processing under this enclosure.” SECNAVINST 1920.6C, encl. (4), ¶ 11.e. (Dec. 15, 2005). It goes on to add clarifying definitions for the terms “identified” and “[i]nitiation of processing.” Id. 9 contains instructions similar to the BOI script submitted by Mr. Williams.3 Nor does the record

contain sufficient information for the Court to assess the significance of any script, such as how

scripts are created, what purpose they serve, and whether BOIs are required to use scripts in effect

at the time of separation proceedings.

Regardless of whether Mr. Williams’s BOI used any script, and the Government confirmed

his BOI did not (see ECF No. 88 at 3), directions provided to BOIs in official Marine Corps and

Navy publications on how to apply the prior conduct limitation in separation proceedings are

relevant to reviewing Mr. Williams’s claim that his BOI acted contrary to that limitation. See

Murphy v. United States, 993 F.2d 871, 873 (Fed. Cir. 1993) (the court “may appropriately decide

whether the military followed [its] procedures”). Even if it is not binding on the ASN, whether a

script provides instructions that contradict the ASN’s interpretation of the prior conduct limitation

is relevant to evaluating whether his interpretation is reasonable and whether the limitation has

been consistently interpreted by the Marine Corps and the Navy over a long period of time, as the

ASN asserts. See Willingham v. United States, 35 Fed. Cl. 633, 646 (1996), aff’d, 104 F.3d 374

(Fed. Cir. 1996).

Courts have found that remand is appropriate in similar circumstances where a decision

fails to reconcile contradictory evidence or agency interpretations. See, e.g., Davis v. Dep’t of

Homeland Sec., 239 Fed. App’x 586, 590 (Fed. Cir. 2007) (remanding decision of the Merit

Systems Protection Board where the board upheld an administrative judge’s decision without

considering or reconciling a contrary decision of the Equal Employment Opportunity Commission

reviewing the same underlying events); Baptist Med. Ctr. v. Burwell, No. 11-cv-0899, 2019 WL

3 Mr. Williams argues that the scripts are the same. ECF No. 81 at 13. The Government has not definitively stated its position on whether or not the scripts are similar. 10 978957 (D.D.C. Feb. 28, 2019) (remanding for the agency to reconcile a decision interpreting a

statutory reimbursement provision with a contradictory interpretation presented by the agency in

separate litigation). Here, the absence of any discussion about the BOI script (or other relevant

script) leaves a gap in the ASN’s decision that should be filled by the ASN, not the Court, in the

first instance. See Fla. Power & Light, 470 U.S. at 744; see also Bateson v. United States, 48 Fed.

Cl. 162, 165 (2000).

The fact that Mr. Williams’s counsel submitted the BOI script to the ASN beyond the

deadline set in the Court’s second remand order does not warrant a contrary conclusion. At oral

argument, Mr. Williams’s counsel attributed his delay to the difficulties he encountered locating a

script associated with 1920.6B.4 See Hr’g Tr. (Sept. 6, 2017) at 13-14, ECF No. 92. Unable to

find an earlier version, he submitted as a supplement the script relating to 1920.6C. Id. at 14.

Although the supplement was roughly one week late, the ASN did not issue his decision for

approximately seven more weeks. The Government does not allege that the late submission caused

any prejudice, nor does it cite any authority demonstrating that the ASN was required to or should

have ignored the script on that basis alone. The Court does not go so far as to hold that untimeliness

can never be grounds for an agency to disregard evidence. And it is worth emphasizing that the

most prudent course would have been to seek the Court’s permission to submit materials beyond

the court-ordered deadline. Nonetheless, given the potential contradiction between the script and

the ASN’s decision, remand is appropriate here to ensure both that the ASN’s decision meets the

requirements of reasoned decision-making and that the Court can effectively review the decision

on the merits. See Sharpe v. United States, 935 F.3d 1352, 1358 (Fed. Cir. 2019); see also Walls

4 The Government likewise noted difficulties in producing the JAGINST script from the 2005 time-period. ECF No. 86 at 1. 11 v. United States, 582 F.3d 1358, 1368 (Fed. Cir. 2009) (holding remand appropriate for BCNR to

consider evidence that the plaintiff failed to submit to the board, despite its request, and instead

attached for the first time to the amended complaint).

B. The Delegation Argument Raised in Plaintiff’s Reply Does Not Warrant Remand to the ASN.

Although the Motion seeks a remand only for the ASN to address arguments and evidence

Mr. Williams previously presented, Plaintiff’s Reply raises alternative grounds for his claim that

the BCNR lacked authority to finally decide his case pursuant to SECNAVINST 5420.193. See

ECF No. 88 at 6-7. Specifically, Mr. Williams now claims his case falls within enclosure 1, §§

6.e.(2)(a) and (2)(b) of the instruction, which describe certain categories of BCNR petitions that

are excepted from the BCNR’s delegated authority under § 6.e.(1)(c). SECNAVINST 5420.193,

encl. (1), §§ 6.e.(2)(a)-(b) (including “[p]etitions involving records previously reviewed or acted

upon by the Secretary wherein the operative facts remained substantially the same” and “[p]etitions

by former commissioned officers or midshipmen to change the character of, and/or the reason for,

their discharge”). It is well established, however, that “[a]rguments raised for the first time in a

reply brief are not properly before th[e] court.” United States v. Ford Motor Co., 463 F.3d 1267,

1276 (Fed. Cir. 2006); see also, e.g., Novosteel SA v. United States, 284 F.3d 1261, 1274 (Fed.

Cir. 2002) (holding that “[a]s a matter of litigation fairness and procedure” arguments first raised

in a reply are treated as waived).

This delegation argument was likewise not raised in the remand to the ASN, which is the

subject of the instant motion. The Court’s second remand order—adopting the parties’ joint

proposed issues—specifically required the ASN to consider the BCNR’s authority under 5420.193,

but only with respect to enclosure 1, § 6.e.(1)(a), which permits the BCNR to take final corrective

action on behalf of the Secretary unless “[c]omments by proper naval authority are inconsistent

12 with the Board’s recommendation.” SECNAVINST 5420.193, encl. (1), § 6.e.(1)(a). Mr.

Williams’s September 18 letter to the ASN also raised the delegation issue, but only based on §

6.e.(1)(a). See ECF No. 71-1 at 2. As discussed above, the ASN’s decision addressed the

delegation question, explaining that the instruction does not require referral of a matter to the ASN

where, as here, the Board does not recommend corrective action and denies an application without

a hearing. See ECF No. 70 at 1-2.

Under these circumstances, it is not procedurally unfair to Mr. Williams to disregard his

alternative delegation argument considering the scope of the prior remand to the ASN, the limited

question presented in the instant remand motion, and the fact that the parties will have the

opportunity following remand to file dispositive motions. See Becton Dickinson & Co. v. C.R.

Bard Inc., 922 F.2d 792, 800 (Fed. Cir. 1990).

C. The BOI Transcript Does Not Warrant Remand at This Stage.

Finally, the Court will address the parties’ positions on the verbatim BOI transcript filed

by the Government after oral argument on Plaintiff’s Motion. The issue of the transcript, however,

is not new.

The BOI transcript was not included in the Administrative Record filed by the Government

in 2010. See Admin. Rec., ECF No. 11. This did not escape the Court’s notice. In response to

the Court’s inquiry, the parties confirmed in a 2012 status report that the transcript was not

considered by the BCNR. See Jt. Status Report, ECF No. 27. Mr. Williams’s counsel indicated

that “he did not submit the BOI transcript to the BCNR, as it was not necessary for Mr. Williams’s

case.” Id. at 1. The parties agreed that such omission “was not substantively or procedurally

improper” and that the transcript was appropriately excluded from the Administrative Record. Id.

The Court relied on this stipulation in resolving the parties’ first cross-motions for judgment on

13 the administrative record and thus “disregard[ed] the Board’s failure to consider the record as part

of its review.” ECF No. 29 at 16 n.11. Accordingly, the transcript was not among the issues the

BCNR was required to consider in the 2014 remand. It was also not among the issues that the

parties proposed (and the Court adopted) to be considered by the ASN in the 2015 remand, see

ECF No. 66, nor did Mr. Williams’s counsel include the transcript as part of his submissions to

the ASN, see ECF No. 71.

Mr. Williams asserts that he previously did not have access to the BOI transcript, and the

Government represented earlier in the case that it could not locate a copy. See ECF No. 87 at 1-2.

On that ground, he argues that the transcript should at least be produced to the Court and his

counsel. Id. The Government has done so. See ECF No. 90.

The Court is mindful of the limited scope of judicial review in military pay cases. See Metz

v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006). It is equally mindful of the narrow question

presented in Plaintiff’s Motion, which challenged the adequacy of the ASN’s review and decision

on remand. The filing of the verbatim transcript arose in relation to the Court’s request that the

Government determine whether any BOI scripts, like the one submitted to the ASN on remand,

existed at the time of Mr. Williams’s BOI. The Government confirmed that at least one script was

in effect in 2005, see ECF No. 86 at 1, and for the reasons discussed above it is appropriate to

remand the matter for the ASN’s consideration and explanation on the issue of the scripts. The

Government, however, confirms that the verbatim transcript does not contain any script. See ECF

No. 88 at 3. The Court therefore sees no reason to include the transcript at this stage on a remand

limited to the script issue. See Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (Fed.

Cir. 2009).

14 Moreover, all the Court has regarding the parties’ positions on the verbatim transcript is in

dueling status reports filed after the hearing on Plaintiff’s Motion. Mr. Williams has not moved

to supplement the Administrative Record. As such, this opinion does not reach any broader issues

relating to the transcript.

III. CONCLUSION

Plaintiff’s Motion for Remand pursuant to RCFC 52.2 is hereby DENIED-IN-PART and

GRANTED-IN-PART. Accordingly, this case is REMANDED to the Navy for consideration

by the ASN.

Pursuant to RCFC 52.2(b), the Court provides the following directions to the parties on

remand:

(1) The remand period shall terminate in ninety (90) days on June 3, 2021, and proceedings in this case are STAYED until that date. If the ASN has not responded on or before June 1, 2021, the parties shall follow the procedures set forth in RCFC 52.2(c).

(2) The Government shall file with the Court and provide to the ASN on or before April 5, 2021 a copy of the script promulgated through the U.S. Navy Judge Advocate General Instructions (“JAGINST”) in effect in March 2005, as referred to in Defendant’s Status Report dated September 20, 2017 (ECF No. 86).

(3) The ASN shall:

(a) consider and reconcile the interpretation of the limitation in SECNAVINST 1920.6B, encl. (4), ¶ 10.e provided in the ASN’s November 18, 2015 decision memorandum (ECF No. 70) with the interpretation of the limitation in SECNAVINST 1920.6C, encl. (4), ¶ 11.e provided in the script submitted by Plaintiff to the ASN on September 28, 2015 (ECF No. 71-2);

(b) consider and reconcile the interpretations of the limitation in SECNAVINST 1920.6B, encl. (4), ¶ 10.e provided in the ASN’s November 18, 2015 decision memorandum (ECF No. 70) and in any script produced in response to part (2) of this Order;

(c) explain how the scripts referred to in parts (3)(a) and (3)(b) of this Order were created, what purpose the scripts serve, and whether BOIs are required to use scripts in effect at the time of separation proceedings; and

15 (d) provide any other information that would give additional context for the Court’s consideration of such scripts;

(4) Pursuant to RCFC 52.2(b)(1)(D), the Government shall file a status report on or before May 4, 2021, indicating the status of the matter on remand; and

(5) When proceedings before the ASN have concluded, the ASN shall forward two (2) copies of his response to the Clerk of the Court of Federal Claims pursuant to RCFC 52.2(d). Within thirty (30) days of the filing of the ASN’s response, the parties shall file the notices required by RCFC 52.2(e)(1).

A copy of this Memorandum Opinion and Order shall be served on the ASN at:

The Assistant Secretary of the Navy (Manpower and Reserve Affairs) 1000 Navy Pentagon Washington DC 20350-1000

SO ORDERED.

Dated: March 5, 2021 /s/ Kathryn C. Davis KATHRYN C. DAVIS Judge