Anderson v. United States
2014 U.S. App. LEXIS 13150
| Fed. Cir. | 2014Background
- The Navy, citing overmanning and a need to "optimize the quality" of the force, created an Enlisted Retention Board (ERB) in 2011 to identify ~3,000 sailors for early separation; quotas and overmanned ratings were published and conversion options to undermanned ratings were offered.
- Appellants are a putative class of >300 sailors who were selected by the ERB and honorably discharged.
- They sued in the Court of Federal Claims seeking back pay and challenging both the merits of the ERB discharges and various procedural aspects (statutory/regulatory compliance, notice/hearing, equal protection, and basic fairness).
- The Court of Federal Claims dismissed merit-based claims as nonjusticiable and granted judgment for the government on procedural claims; it also denied motions to recuse the judge and to supplement the administrative record.
- The Federal Circuit affirmed: merit challenges are committed to military discretion; procedural challenges failed because the ERB complied with applicable statutes/regulations and satisfied minimum fairness; recusal and record-supplement denials were not abuses of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Justiciability of merit-based challenge to convening ERB and discharges | ERB was wrongful; Navy should not have convened it and should not have discharged Plaintiffs | Military staffing and discharge decisions are committed to military discretion and thus nonjusticiable | Nonjusticiable; courts cannot review merits of military staffing/discharge decisions |
| Compliance with 10 U.S.C. § 1169 (statutory authority) | Secretary did not prescribe "cause" for discharges; so ERB exceeded §1169 | Secretary’s March 2011 memorandum properly prescribed the ERB and provided reasons (overmanning, quality) | ERB complied with §1169; Secretary properly prescribed the program |
| Compliance with DoD/Navy procedural regulations (notice/hearing, MILPERSMAN) | Sailors with >6 years were entitled to hearings and written notice per DoDI/MILPERSMAN; at least one hearing request was denied | DoD regs authorize early separation under a Secretary-established program and do not create a categorical pre-separation hearing right here; MILPERSMAN’s notice is a command responsibility, not a substantive entitlement | No violation: DoDI 1332.14 permits Secretary-established early separation without the hearing plaintiffs claim; MILPERSMAN does not create enforceable procedural rights |
| Minimum fairness / due process / equal protection; motions on recusal and record supplementation | ERB failed basic fairness (no individualized reasons), violated due process and equal protection; judge’s prior DOJ/Navy work and extra-record materials warrant recusal and supplementation | Honorable, nonstigmatizing discharges do not trigger due process; ERB provided general notice, criteria, and conversion options; prior employment was remote in time; extra documents relate only to nonjusticiable merits | Minimum fairness satisfied; no due process or equal protection violation; recusal and supplementation denials not an abuse of discretion |
Key Cases Cited
- Adkins v. United States, 68 F.3d 1317 (Fed. Cir. 1995) (military personnel decisions committed to military discretion)
- Sargisson v. United States, 913 F.2d 918 (Fed. Cir. 1990) (challenge to military release nonjusticiable)
- Murphy v. United States, 993 F.2d 871 (Fed. Cir. 1993) (reduction-in-force discharge merits beyond judicial review)
- Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009) (limits on supplementing the administrative record)
- Keef v. United States, 185 Ct. Cl. 454 (Ct. Cl. 1968) (honorable, nonstigmatizing separations do not require notice or hearing)