Volk v. United States, 111 Fed. Cl. 313

Background

Mr. Volk, a Navy SEAL, had his SEAL NEC and trident revoked on September 13, 2007.
The revocation followed concerns about Volk’s performance, conduct, and his ultimatum to relinquish the trident to avoid deployment.
Cdr. Thorleifson requested involuntary revocation; the form lacked background and justification per MILPERSMAN 1220-300 at the time.
Volk challenged the revocation through Article 138 proceedings, BCNR correction petition, and then brought suit in the Court of Federal Claims seeking back pay and reinstatement.
BCNR denied Volk’s correction request in January 2010, and the Article 138 investigation and Bonelli letter supported sustaining the revocation.
The court granted the Navy’s RCFC 12(b)(1) motion in part (dismissing whistleblower/First Amendment/Due Process claims) and granted judgment on the administrative record for the Military Pay Act claim, while denying dismissal of the Military Pay Act claim on the merits.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Do claims under the Whistleblower Act, First Amendment, and Due Process have jurisdiction?	Holley logic preserves jurisdiction via the Military Pay Act counterclaim.	No independent money-mandating basis for those claims exists; Tucker Act jurisdiction not triggered.	The court lacks jurisdiction over Whistleblower Act, First Amendment, and Due Process claims.
Does the Military Pay Act claim state a claim for relief?	Plaintiff argues the case seeks back pay and reinstatement under the Military Pay Act.	Suit seeks reweighing of fitness decisions, which is nonjusticiable; MPA claim should be dismissed.	MPA claim survives; the court may review the correction-board-like decision without impermissibly substituting its judgment on fitness.
Is the BCNR decision subject to proper review for legal error or substantial evidence?	BCNR failed to apply MILPERSMAN 1220-300 or to provide a proper nexus for the grounds used.	BCNR reviewed the record and applied MILPERSMAN 1220-300; no plain legal error evident.	BCNR decision supported by substantial evidence; not arbitrary or unlawful.
Was there a due process violation in the revocation process that the BCNR should have corrected?	Volk did not receive notice or opportunity to be heard before the trident revocation.	Due process was satisfied via Article 138, BCNR proceedings, and no required hearing before a Trident Review Board.	No due process violation found; BCNR decision stands.
Was MILPERSMAN 1220-300’s list of grounds for revocation exhaustive?	The grounds listed are exhaustive; ‘major lack of confidence’ goes beyond §4 grounds.	The grounds are non-exhaustive; general circumstances include lack of confidence as a form of unsuitability.	The revocation basis was not plain legal error; the grounds can include ‘major lack of confidence’ under the general circumstances.

Key Cases Cited

Holley v. United States, 124 F.3d 1462 (Fed. Cir. 1997) (permits consideration of constitutional issues within MP Act claim)
Arens v. United States, 969 F.2d 1034 (Fed. Cir. 1992) (deferential review; substantial evidence standard for correction boards)
Dodson v. United States, 988 F.2d 1199 (Fed. Cir. 1993) (arbitrary and capricious review; statutory/procedural compliance)
Lindsay v. United States, 295 F.3d 1252 (Fed. Cir. 2002) (nexus requirement between error and adverse decision in review)
Bowman Transp., Inc. v. Ark.-Best Freight Sys., 419 U.S. 281 (U.S. Supreme Court 1974) (reasonableness of agency's path can sustain action with discernible rationale)
Craft v. United States, 210 F. Cl. 170 (Ct. Cl. 1976) (adequate notice to rebut board action; no strict formalism required)
Selman v. United States, 723 F.2d 877 (Fed. Cir. 1983) (review of correction board decisions; articulation of basis can be inferred)
Sanders v. United States, 219 Ct. Cl. 285 (Ct. Cl. 1979) (presumption of proper performance by public officers; limits to reexamination)
Heisig v. United States, 719 F.2d 1153 (Fed. Cir. 1983) (substantial evidence standard in military review)