Nicely v. United States
132 Fed. Cl. 649
| Fed. Cl. | 2017Background
- Josiah E. Nicely, a former USMC Captain, sues under the Military Pay Act for back pay and related relief following involuntary separation.
- Plaintiff asserted wrongful discharge and seeks correction of his naval records through BCNR, and back pay if corrected.
- USMC involuntary separation occurred after multiple disciplinary proceedings stemming from a DUI arrest and related incidents in 2010–2011.
- BCNR denied relief in August 2015, prompting Nicely to file suit in October 2016 in the Court of Federal Claims.
- Government moved to remand under RCFC 52.2 to allow BCNR to address unresolved factors including regulations, whistleblower protections, and administrative record scope.
- Court granted remand, staying proceedings and remanding to BCNR to complete full record review and consider outstanding issues by Dec. 15, 2017.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is remand to BCNR appropriate here? | Nicely seeks remand to complete record review. | Government contends remand is appropriate to address unresolved factors. | Yes, remand appropriate. |
| Scope of remand—what BCNR should review? | Plaintiff seeks broader review including evidentiary issues. | BCNR should review only listed outstanding factors. | Remand to consider specified factors. |
| What issues must BCNR address regarding regulations and protections? | Allege possible regulatory and whistleblower protections violations. | Remand should clarify regulatory compliance and protections. | Await BCNR findings on these regulatory issues. |
| Does the record require inclusion of the Inspector General’s report and other materials? | Requests inclusion and consideration of advisory letters and transcripts. | Remand to determine completeness of administrative record. | BCNR to determine and include relevant materials. |
| What procedural steps during remand? | Advise prompt reporting and complete record within remand period. | Maintain structured remand proceedings with periodic reporting. | Remand plan approved with 30-day and 90-day reporting. |
Key Cases Cited
- Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (Supreme Court 1985) (remand for further explanation when record incomplete)
- SKF USA Inc. v. United States, 254 F.3d 1022 (Fed. Cir. 2001) (remand may be appropriate for intervening events or reconsideration)
- Santiago v. United States, 71 Fed. Cl. 220 (Fed. Cl. 2006) (remand framework under RCFC 52.2)
- Southwestern Bell Tel. Co. v. Fed. Communications Comm’n, 10 F.3d 892 (D.C. Cir. 1993) (remand and reconsideration may be appropriate)