Spellissy v. United States
103 Fed. Cl. 274
| Fed. Cl. | 2012Background
- Spellissy retired from the Army on Dec. 31, 2004 as a Colonel (0-6) after a 25+ year career.
- Deputy Assistant Secretary of the Army ordered Spellissy to retire in LTC (0-5) following discovery of his post-retirement misconduct and new evidence.
- Correction Board in July 2008 denied upgrading to Colonel, finding insufficient satisfactory service given misconduct began in Oct. 2004.
- Spellissy petitioned correction board in Oct. 2007 seeking Colonel, 0-6 retirement; board emphasized October 2004 misconduct and late retirement date.
- Spellissy filed suit in April 2011 asserting the Army reopened the grade determination improperly and seeks reinstatement to Colonel, 0-6 and back pay.
- Court has jurisdiction under the Tucker Act and review is of the administrative record with deference to military decisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to hear the claim. | Spellissy relies on money-mandating statute/regulation (1370/15-80). | The board’s action is not money-mandating; reconsideration is within military discretion. | Court has jurisdiction; 10 U.S.C. §1370 and AR 15-80 money-mandating. |
| Whether the correction board’s reopening of the grade determination was proper. | The board improperly reopened and relied on pre-retirement facts to deem unsatisfactory service. | Reopening allowed by AR 15-80 4-1.c due to substantial new evidence (post-retirement conviction). | Not arbitrary or contrary to law; relocation of three-year satisfactory service requirement sustained. |
| Whether the correction board’s substantiation of unsatisfactory service was supported by substantial evidence. | Evidence shows misconduct occurred after retirement and not while on active duty. | Conspiracy-related conduct and pre-retirement emails support unsatisfactory service. | Yes; the board’s findings are supported by substantial evidence. |
| Whether doctrines of law of the case/issue preclusion/ judicial estoppel bar Spellissy’s attack on the criminal case findings. | Law of the case/estoppel prevent defendant from arguing conspiracy before retirement. | Doctrines do not apply; proceedings are separate and distinct. | Doctrines do not bar the challenge; not applicable here. |
Key Cases Cited
- Duncan v. United States, 949 F.2d 1134 (Fed.Cir.1991) (money-mandating retirement upgrade context; applicability to §1370/§3911)
- Fisher v. United States, 402 F.3d 1167 (Fed.Cir.2005) (money-mandating source determination for jurisdiction)
- Chambers v. United States, 417 F.3d 1218 (Fed.Cir.2005) (review of correction board decisions; substantial evidence standard)
- Koster v. United States, 685 F.2d 407 (Ct.Cl.1982) (pre-Fisher; retirement upgrade sufficiency not remanded where agency decision supported by substantial evidence)
- Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1983) (preclusion principles; collateral estoppel doctrine cited)
- Shell Petroleum, Inc. v. United States, 319 F.3d 1334 (Fed.Cir.2003) (issue preclusion/ collateral estoppel context in litigation)
- Agostini v. Felton, 521 U.S. 203 (1997) (law of the case doctrine applicability in multi-stage litigation)
- Metz v. United States, 466 F.3d 991 (Fed.Cir.2006) (review of agency actions following correction boards; substantial evidence standard)
- Fisher v. United States, 402 F.3d 1167 (Fed.Cir.2005) (money-mandating source; jurisdictional determinative)
- Lewis v. United States, 458 F.3d 1372 (Fed.Cir.2006) (retirement pay claims are money-mandating)
- French v. United States, 42 Fed.Cl. 49 (1998) (regulatory guidance on retirement grade considerations)
- Duncan v. United States, 949 F.2d 1134 (Fed.Cir.1991) (money-mandating interpretation of §1370/related)