HOLMES v. USA

Filing 43

REPORTED ORDER denying 24 Motion ; granting in part and denying in part 36 Motion to Remand. Signed by Senior Judge Victor J. Wolski. (er) Service on parties made.

In the United States Court of Federal Claims
No. 16-1710C
(Filed April 25, 2019)

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GORDON R. HOLMES,
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant.
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Army Board for Correction of Military
Records; Department of Veterans
Affairs; All Writs Act, 28 U.S.C.
§ 1651(a); voluntary remand, RCFC
52.2; doubts about correctness of
decision and desire to reconsider;
intervening events; factors for
remand duration; gaps in record.

Sheridan England, Washington, D.C., for plaintiff.
Margaret J. Jantzen, Trial Attorney, Commercial Litigation Branch, Civil
Division, Department of Justice, with whom were Joseph H. Hunt, Assistant
Attorney General, Robert E. Kirschman, Jr., Director, and Douglas K. Mickle,
Assistant Director, all of Washington, D.C., for defendant. Major Michael
Townsend, Jr., U.S. Army Litigation Unit, Fort Belvoir, Va., of counsel.
ORDER
WOLSKI, Judge.
In this matter plaintiff Gordon R. Holmes, a former member of the California
Army National Guard, seeks back pay and disability severance pay relating to
injuries he suffered during Army training. Plaintiff ’s application for review of his
medical condition by a Medical Evaluation Board (MEB) or Physical Evaluation
Board (PEB) was rejected twice by the Army Board for Correction of Military
Records (ABCMR). See Admin. R. (AR) 3–23 (reconsideration decision), 1170–76
(initial decision). After Mr. Holmes had filed his motion for judgment on the
administrative record, the government responded with a motion for a voluntary
remand, which is the matter presently before the court. See Def.’s Mot. Voluntary
Remand (Def.’s Mot.), ECF No. 36.
Proceedings had earlier been stayed, at the request of Mr. Holmes, in light of
a Board of Veterans’ Appeals (BVA) decision in a companion case brought by
plaintiff. See Order (Sept. 21, 2017). In that decision, the BVA found that Mr.

Holmes’s cervical dystonia was service-connected, and his matter was remanded to
the Department of Veterans Affairs (VA) for additional examinations and a new
benefits determination. See Ex. 1 to Pl.’s Unopposed Mot. to Stay (In the Appeal of
Gordon R. Holmes, Docket No. 12-27 667A (Bd. Vet. Appeals Sept. 15, 2017)), ECF
No. 20-1. Plaintiff was hoping that a VA decision to award him benefits could make
this case moot, but when four months passed without the VA taking any of the
actions ordered by the BVA, Mr. Holmes moved to lift the stay, see Pl.’s Unopp. Mot.
Lift Stay at 1–2, ECF No. 22, and this request was granted. Order (Jan. 18, 2018).
The following month, plaintiff filed a motion requesting that this court issue
a writ of mandamus ordering the VA to process his other case. Pl.’s Mot.
Mandamus at 1, ECF No. 24. This motion was denied. See Tr. (Feb. 5, 2019) at 6–
7. While our court, as one “established by Act of Congress,” may issue writs of
mandamus under the All Writs Act, 28 U.S.C. § 1651(a), see Cox v. West, 149 F.3d
1360, 1363 (Fed. Cir. 1998) (holding that Article I courts may issue writs under the
act), these are limited to writs “necessary or appropriate in aid of” a court’s
jurisdiction. 28 U.S.C. § 1651(a). Since the denial of VA benefits is not a matter
that may be reviewed by our court, see Estate of Smallwood v. United States, 130
Fed. Cl. 395, 399–400 (2017), the failure of the VA to act in Mr. Holmes’s companion
case does not affect our jurisdiction, although some of the awaited actions might
prove probative of issues in this matter.
After plaintiff filed a motion for judgment on the administrative record, the
government responded with its motion seeking a voluntary remand so that the
ABCMR can reconsider plaintiff ’s claims. See Def.’s Mot. at 1. The government
notes that after the National Guard informed Mr. Holmes that he was entitled to a
PEB, he timely responded with a request for an MEB and PEB---but apparently no
evaluation board was conducted, and the administrative record contains no
documentation of any reasoned determination that he was no longer entitled to such
a board. Id. at 1–2 (citing AR 235, 1206–07). 1 Defendant also highlights the
ABCMR’s reliance on an opinion purportedly from the Army National Guard’s Chief
Surgeon, 2 which refers to a physical examination of plaintiff ’s neck for which no
medical records are contained in the administrative record. Id. at 2; see AR 15–16.
And the government adds that the various National Guard determinations that Mr.
Holmes’s injuries were suffered in the Line of Duty, while recounted in the ABCMR
decision, see AR 9–14, are not adequately addressed. Def.’s Mot. at 3. Although
To the contrary, a subsequent Department of the Army record recommended that
plaintiff, “after a thorough physical and medical evaluation, be presented to the
medical board and/or Fit for Duty board in the most expeditious manner.” AR 1214.

1

This opinion does not come directly from the Chief Surgeon but is instead
reported in a memorandum from the Chief of the National Guard Bureau’s
Personnel Policy Division. AR 47–49.

2

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defendant stops short of admitting error, it maintains that “the interests of justice”
support a remand so that the ABCMR may obtain the missing documents, clarify
whether an MEB or PEB was warranted given the Line of Duty determinations,
and reconsider the decision to deny the relief sought by Mr. Holmes. Id. at 2–3.
The government cites two situations justifying remand, described in the Federal
Circuit’s opinion in SKF USA Inc. v. United States, 254 F.3d 1022, 1028–30 (Fed.
Cir. 2001), as supporting remand in this case---the occurrence of intervening events
and the desire to reconsider a position. See Def.’s Mot. at 2.
Plaintiff strongly objects to a remand, as he doubts the existence of the
missing medical records and argues that a remand will only delay resolution of his
case. Pl.’s Omnibus Mot. (Pl.’s Opp’n), ECF No. 37, at 4–5, 7–9, 11. He argues that
the government has failed to “express some doubt about the correctness of its prior
decision,” and thus cannot qualify for a discretionary remand. See id. at 10 (citing
SKF USA, 254 F.3d at 1029). Plaintiff maintains that the “substantial and
legitimate” concerns required by the Federal Circuit are lacking, id., and his counsel
stresses that Mr. Holmes’s health could be jeopardized by a long remand period, see
Tr. (Feb. 5, 2019) at 10–11, 31–32, 36–38.
While it was merely implicit in the government’s request that the ABCMR
reconsider its decision, see Def.’s Mot. at 3; Def.’s Reply at 1, 3–4, the Army’s
counsel clearly and expressly stated on the record defendant’s doubts about the
correctness of the decision, see Tr. (Feb. 5, 2019) at 27. Under the circumstances,
the ABCMR’s failure to account for the previous Line of Duty determinations and
the promised medical board, and its reliance on a second-hand medical opinion
which was based on medical records that were not included in the administrative
record, raise substantial and legitimate concerns about the correctness of the
ABCMR decision. Moreover, the September 15, 2017 BVA decision that Mr.
Holmes’s cervical dystonia was service-connected qualifies as an intervening event
outside of the Army’s control, further justifying a remand so that decision may be
considered by the ABCMR. See SKF USA, 254 F.3d at 1028.
Accordingly, the Court finds that the voluntary remand sought by the
government, under Rule 52.2 of Rules of the United States Court of Federal Claims
(RCFC), is warranted for the purposes requested. The Court, however, cannot agree
to the requested remand period of six months plus the possibility of extension.
Under RCFC 52.2, six months is the maximum duration for a remand, not some
baseline or default period. See RCFC 52.2(b)(1)(B) (requiring that the remand
period is “not to exceed 6 months”). In several instances, our court has remanded
matters to military corrections or review boards for periods ranging from 90 to 120
days. See, e.g., Wollman v. United States, 108 Fed. Cl. 656, 675 (2013) (90 days);
Boyle v. United States, 101 Fed. Cl. 592, 604 (2011) (90 days); Johnson v. United
States, 93 Fed. Cl. 666, 669 (2010) (90 days); Doe v. United States, No. 08-246C,
2009 WL 260967, at *13 (Fed. Cl. Jan. 30, 2009) (120 days); Rominger v. United
States, 72 Fed. Cl. 268, 274 (2006) (120 days). The length of a remand period will
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depend on the circumstances presented in each case, but several factors would
naturally be considered by this court, including: 1) any exigencies faced by the
former service member; 2) the extent of prior proceedings, and whether records had
previously been compiled; 3) the narrowness of the scope of the issues on remand;
and 4) any special problems faced by the corrections board. In light of the health
concerns of Mr. Holmes, the fact that his application has been considered twice
already by the ABCMR, and the small number of additional documents that the
board must consider on remand, the ABCMR should be able to prioritize this
remand and complete its work in far shorter than 180 days. As no special problems
have been identified concerning the ABCMR, the Court finds that a remand period
of 105 days is appropriate in the circumstances. The government’s motion is thus
GRANTED-IN-PART and DENIED-IN-PART, and the case is REMANDED to
the ABCMR.
Pursuant to RCFC 52.2(b), the Court provides the following directions to the
parties on remand:
(1) The remand period shall terminate on Thursday, August
8, 2019, and proceedings in this case are STAYED until that date. If
the ABCMR has not responded on or by August 8, 2019, the parties
shall follow the procedures set forth in RCFC 52.2(d).
(2) The ABCMR shall clarify whether an in line of duty
MEB/PEB was warranted based on the National Guard’s Line of Duty
determinations and the evidence of record.
(3) The ABCMR shall also consider the BVA’s September 15,
2017 decision concerning Mr. Holmes and any further evidence that he
may submit during the remand in accordance with any procedures the
board may establish for that purpose.
(4) The ABCMR shall obtain a complete set of the supporting
documents used in the advisory opinion from the National Guard Chief
Surgeon, as well as a copy of the actual advisory opinion itself.
(5) Defendant shall, every 28 days, file a status report
concerning the progress of this remand as well as the progress of the
remand of Mr. Holmes’s matter before the VA.
The Clerk is directed to serve a certified copy of this order, along with a copy
of the BVA decision (filed as ECF No. 20-1), on the Army Board for Correction of
Military Records at: Department of the Army, Army Board for Correction of
Military Records, 251 18th Street South, Suite 385, Arlington, VA 22202-3531.

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IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Senior Judge

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