Prestonback v. United States
| Decision Date | 30 August 2018 |
| Docket Number | No. 17-439 C,17-439 C |
| Parties | LOGAN B. PRESTONBACK, Plaintiff, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
ORIGINAL
RCFC 52.1; Judgment on the Administrative Record Military Pay; Voluntarily Fail; Entitlement Recoupment
Logan B. Prestonback, Manhattan, KS, proceeding pro se.
Daniel S. Herzfeld, United States Department of Justice, Civil Division, Washington, DC, for defendant.
This action is before the Court on defendant's Motion for Judgment on the Administrative Record. On March 28, 2017, plaintiff, Logan Prestonback, filed his Complaint with this Court, alleging that he was wrongfully separated from the United States Army ("Army"). See generally Complaint (hereinafter "Compl."). Plaintiff seeks various forms of relief, including the following: "a monetary refund of $7,000 withheld from his 2014 tax" refund; "a judgment and decree setting aside" the Defense Finance and Accounting Service's ("DFAS") recoupment action against plaintiff; and "a stay of any further prosecution of such action by [DFAS] until the Court issues its final judgment and decree." Compl. at 4. For the following reasons, the Court grants defendant's Motion for Judgment on the Administrative Record.
Logan Prestonback served in the Army from May 23, 2009, until his honorable discharge at the rank of First Lieutenant ("1LT") on June 27, 2013. Administrative Record (hereinafter "AR") 18. In 2005, as part of the commissioning process at the United States Military Academy in West Point, New York, 1LT Prestonback signed his Service Agreement ("Form 5-50"), consenting to serve on active duty for five years. AR 56. Form 5-50 stipulated that, if 1LT Prestonback "voluntarily fail[ed] or because of misconduct fail[ed] to complete the period of active duty service," he would be required to repay a proportional amount of his educational scholarship. AR 57.
After commissioning as a Second Lieutenant in 2009, 1LT Prestonback completed the Army Engineer Basic Officer Leadership Course and began to serve at Fort Riley, Kansas, where he received a positive Officer Evaluation Report ("OER"). AR 49. OERs allow for Army leaders to assess and rate the quality and competency of subordinates, and serve as the administrative basis for promotions or eliminations. AR 48-49; see also Officer Evaluation Reporting System, Army Regulation 623-105, para. 1-8 (April 1998). Plaintiff was then deployed to Iraq from November 4, 2010 to November 7, 2011, and he was promoted to 1LT while overseas. AR 46.
In 2011, 1LT Prestonback received a negative, or "referred," OER, which stated that plaintiff "failed to follow direct lawful orders" and "only [did] specific tasks, often not completing them to standard." AR 45-46. 1LT Prestonback's comments verifying the OER's accuracy were included with the report. AR 47. In 2012, plaintiff received a second referred OER, which found "no drive or motivation within LT Prestonback, which he freely admits." AR 41-42. Plaintiff's senior rater placed him last of the seventeen First Lieutenants assessed, stating that 1LT Prestonback's "lackluster performance while deployed was a burden." AR 42. On March 19, 2012, plaintiff responded to the second referred OER, rebutting the assessment and highlighting his improvement. AR 43-44.
On December 14, 2012, the Army Human Resources Command ("HRC") initiated 1LT Prestonback's administrative separation based on "substandard duty performance," and directed plaintiff to show cause why he should not be eliminated. AR 33-34. On February 5, 2013, 1LT Prestonback responded, stating that the referred OERs were based on "opinion and absent any reason." AR 31. On May 22, 2013, the Deputy Assistant Secretary of the Army for Review Boards ("Deputy Secretary") determined that 1LT Prestonback should be separated from the Army for "substandard duty performance." AR 22. The Deputy Secretary also stated that "a recoupment action would be conducted in accordance with Army Regulation 600-8-24 and 10 U.S.C. § 2005." AR 22. On June 27, 2013, the Army discharged 1LT Prestonback. AR 18.
On September 13, 2013, DFAS informed 1LT Prestonback that he owed $30,352.01 for the balance of his educational scholarship. AR 12-13. On October 21, 2013, 1LT Prestonback filed an Application for Correction of Military Record ("Application") with the Army Board for Correction of Military Records ("the Board"), requesting that the Board waive his educational debt. AR 16. Plaintiff argued that the recoupment action was improper because he was eliminated for reasons other than those specifically listed in Form 5-50. AR 3, 9.
1LT Prestonback filed his Application with the Board on October 21, 2013. AR 16. On February 20, 2014, the Board directed plaintiff to provide supplemental documentation. AR 15. After considering plaintiff's amended Application, the Board denied his waiver request on February 5, 2015. AR 3, 7-8. The Board found that plaintiff was "eliminated from the U.S. Army because of substandard duty performance." AR 8. The Board determined that 1LT Prestonback's substandard performance fell within the scope of Form 5-50's "voluntarily fail." AR 3, 57.
On March 28, 2017, 1LT Prestonback filed his Complaint with this Court, alleging that he "cannot be liable for [scholarship] reimbursement because [he] was not terminated for misconduct, nor did he voluntarily resign," in accordance with Form 5-50's two expressly stated categories for termination. Compl. at 2. On October 6, 2017, the government filed its Motion for Judgment on the Administrative Record, arguing, inter alia, that plaintiff's elimination fell within the scope of Form 5-50, and that the Board's decision was reasonable. Defendant's Motion for Judgement on the Administrative Record (hereinafter "D's MJAR") at 15. On March 7, 2018, the Court dismissed plaintiff's Complaint, without prejudice, for failure to prosecute, in accordance with RCFC 41(b). Order, ECF No. 17-439, Dkt. No. 22.
On March 20, 2018, the Court vacated its dismissal in accordance with RCFC 60, finding that reopening the case was in the interest of justice, and accepted plaintiff's Response to defendant's Motion for Judgment on the Administrative Record. Order, ECF No. 17-439, Dkt. No. 24; see generally Plaintiff's Response to Motion for Judgment on the Record (hereinafter "P's Resp."). In his Response, 1LT Prestonback argues, inter alia, that the Army failed to provide adequate notice of elimination or recoupment, and that Form 5-50 should be analyzed under common law contract principles. P's Resp. at 5-6. Plaintiff also asks for a ruling of summary judgment based on the Administrative Record and the parties' motions. Id. at 10 (). On May 10, 2018 the government filed its Reply in Support of its Motion for Judgment on the Administrative Record. See Defendant's Reply in Support of its Motion for Judgment on the Administrative Record (hereinafter "D's Reply"). In its Reply, defendant argues that statutory law governs Form 5-50, and that the Federal Circuit's understanding of "voluntarily fail" includes substandard performance. D's Reply at 3, 6.
As pro se plaintiffs are, by their nature, unassisted, this Court may sometimes grant a pro se plaintiff greater lenience throughout the filing process. In keeping with this permissive leniency, the Court construes plaintiff's Response, in which he asks for Summary Judgment, as a Cross-Motion for judgment on the administrative record. P's Resp. at 10. Had plaintiff wished to file a Reply, it would have been due on May 17, 2018. RCFC 20(b)(2). As the Court has not received such an optional Reply, the case is considered fully briefed and ripe for review.
This Court's jurisdictional grant is primarily defined by the Tucker Act, which provides this Court the power "to render any judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States . . . in cases not sounding in tort." 28 U.S.C. § 1491(a)(1) (2012) (emphasis added). Although the Tucker Act expressly waives the sovereign immunity of the United States against such claims, it "does not create any substantive right enforceable against the United States for money damages." United States v. Teslan, 424 U.S. 392, 398 (1976). Rather, in order to fall within the scope of the Tucker Act, "a plaintiff must identify a separate source of substantive law that creates the right to money damages." Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) ().
The Court reviews decisions of military correction boards based upon the Administrative Record. Walls v. United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009). When a party requests judgment on the Administrative Record under RCFC 52.1, the Court makes findings of fact as if it were conducting a trial on a paper record. Bannum, Inc. v. United States, 404 F.3d 1346, 1354 (Fed. Cir. 2005). Looking to the Administrative Record, the Court must determine whether a party has met its burden of proof based on the evidence in the record. Id. at 1355.
There is a deferential standard when reviewing military personnel decisions, and this Court "will not disturb the decision of the corrections board unless it is arbitrary, capricious, contrary to law, or unsupported by substantial evidence." Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir. 2005) (citing Haselrig v. United States, 333 F.3d 1354, 1355 (Fed. Cir. 2003)). Further, the Court may not "substitute [its] judgment for that of the military departments when reasonable minds could reach different conclusions on the same evidence." Heisig v. United States...
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