Tippins v. United States
| Decision Date | 06 July 2021 |
| Docket Number | No. 18-923C,18-923C |
| Parties | TONIA TIPPINS, et al., Plaintiffs, v. THE UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Nathan S. Mammen, with whom were Ragan Naresh and Emily M. Scott, Kirkland & Ellis LLP, Washington, D.C., for Plaintiffs.
Douglas G. Edelschick, Senior Trial Counsel, with whom were Marin F. Hockey, Deputy Director, Robert E. Kirschman, Jr., Director, Brian M. Boynton, Acting Assistant Attorney General, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, D.C., LCDR Justin R. Jolley, Deputy Chief, and Brian Judge, Chief, Office of Claims & Litigation, U.S. Coast Guard, Of Counsel, for Defendant.
1
In this military pay case, several former members of the United States Coast Guard ("USCG" or "Coast Guard") challenge their involuntary retirements as unlawful. Tonia Tippins, Derrik Magnuson, George Holloway, Jennifer Rehberg, Glenda Smithleeth, and M. Allen Bumgardner (collectively, "Plaintiffs") served as enlisted members of the Coast Guard until their respective separations through Career Retention Screening Panels ("CRSPs"). They bring this action seeking corrective action, back pay and related benefits, reinstatement to active service, and a declaratory judgment that the process used to effectuate their retirement was contrary to law. (Am. Compl. at 17, ECF No. 8).
The question at the heart of this dispute appears simple enough: were the CRSPs lawfully convened as part of a "reduction in force" pursuant to 14 U.S.C. § 357(j)? If they were, the United States is entitled to judgment. If not, the Plaintiffs are entitled to some measure of relief. To answer this question, the Court must determine whether the statute is unambiguous and, if itis not, whether the Coast Guard's application is entitled to deference.
The Court finds the statute is unambiguous and agrees with the Plaintiffs' interpretation of "reduction in force." As the Court will explain below, even if the statute were ambiguous, the Secretary's memoranda authorizing the CRSPs under § 357(j) did not interpret the statute, and thus the Coast Guard would not be entitled to deference. Accordingly, Plaintiffs' Motion for Summary Judgment, (Pls.' Mot., ECF No. 62), is granted, and the United States' Cross-Motion for Summary Judgment, (Def.'s Mot., ECF No. 67), is denied. Finally, the Plaintiffs' Motion to Strike is denied as moot.
Plaintiffs are Coast Guard veterans who each honorably served twenty years or more before being forced to retire by CRSPs conducted between 2013 and 2015. (Am. Compl. ¶¶ 7-12; Answer ¶¶ 7-12, ECF No. 9). While serving in the Coast Guard their occupations varied widely and each received numerous awards for their excellent service. (Am. Compl. ¶¶ 7-12).
The CRSPs were first authorized in 2010 when the Secretary of Homeland Security (the "Secretary") affixed his signature to a memorandum sent by the Commandant of the Coast Guard. On August 13, 2010, the Commandant received approval from the Secretary "to conduct an Active Duty Enlisted Career Retention Screening Panel in the fall of 2010." (Pls.' Mot. Ex. 7 at pp. 8-9).3 The Commandant had advised the Secretary that the panel was "required to address high retention and its adverse impact on workforce flow[,]" citing the tendency of junior enlisted members to request voluntary separations, while senior members remained with the force. (Id.). The Commandant warned that "[i]f allowed to continue, this trend . . . will result in an imbalance in the enlisted workforce's experience level for many years to come." (Id.).
Invoking 10 U.S.C. § 1169 and 14 U.S.C. § 357(j), the Secretary authorized CRSPs to review "the records of all first class petty officers and below with twenty or more years ofservice and all chief petty officers and above with twenty or more years of service and three years or more time in grade." (Id.). The first of these statutes, 10 U.S.C. § 1169, in relevant part, simply provides that no regular enlisted member of an armed force may be discharged before his or her term of service expires, except as prescribed by the Secretary. When it was in effect, 14 U.S.C § 3574 governed the involuntary retirement of enlisted members. It provided, in relevant part:
(j) When the Secretary orders a reduction in force, enlisted personnel may be involuntarily separated from the service without the [Enlisted Personnel] Board's action.
§ 357(j).
Notably, although it cited § 357(j), the 2010 authorization by the Secretary did not mention a "reduction in force" (often abbreviated as a "RIF"). . In fact, the Office of Military Personnel, a component of the Coast Guard administrative hierarchy, was messaging to the rank-and-file servicemembers that the 2010 process was "not a RIF and we need to ensure that it is not associated with a RIF." (Pls.' Mot. Ex. 9). This message was part of a strategy to "create flow and provide opportunities to [the Coast Guard's] junior workforce[,]" thus the Coast Guard intended to "design[] and message[]" the CRSPs "as a flow stimulating tool and not a RIF." (Pls.' Mot. Ex. 10). Essentially, the Secretary sought to clear out older members to "accelerate advancement of junior enlisted members" and "reinvigorate accession of recruits[.]" (Pls.' Mot. Ex. 11). "[T]he CRSP was not intended to reduce the overall size of the force." (Id.; see also Pls.' Mot. Ex. 9 ()).
The Secretary similarly authorized CRSPs in 2011-2014. (AR 27, 53, 86, 128). Interestingly, the memoranda authorizing these CRSPs contain slightly varying language regarding § 357(j) and "reduction(s) in force." The 2011 memorandum stated:
Under Section 357 (j), the Secretary of Homeland Security must provide authorization for involuntary retirements without action by Enlisted Personnel Boards pursuant to a "reduction in force." Section 357(j) does not define "reduction in force," directly or by reference, and the 2010 CRSP avoided that expression in describing the process to the fleet. The Assistant Commandant for Human Resources designed CRSP to strategically rebalance the force toward a more upwardly mobile, performance based demographic.
(AR 27). The 2012 and 2013 memoranda contained the following identical language:
Under Section 357(j), the Secretary of Homeland Security may authorize involuntary retirements without action by Enlisted Personnel Boards pursuant to a "reduction in force." In order to avoid creating confusion in the fleet, the CRSP process does not include the term "reduction in force," which has specific meanings in other statutory contexts, because title 14 does not define, directly or by reference, "reduction in force."
(AR 53, 86). The 2014 memorandum provided:
Under Section 357(j), the Secretary of Homeland Security may authorize involuntary retirements without action by Enlisted Personnel Boards pursuant to a "reduction in force." In order to avoid creating confusion in the fleet, the CRSP process does not include the term "reduction in force."
(AR 128).
The 2010 and 2011 CRSPs reviewed the records of all retirement-eligible Coast Guard service members at (1) pay grade E-6 and below with at least twenty years of active military service; and (2) at pay grade E-7 and above with at least twenty years of active military service and three or more years of service at their current pay grades. (AR 17, 32). Servicemembers that had been reviewed in the 2010 CRSP were excluded from the 2011 CRSP. (AR 17, 32). The 2012 CRSP utilized the same selection criteria but did not exclude those previously screened and retained by the 2010 and 2011 CRSPs. (AR 57).
The 2013 CRSP reviewed the records of retirement-eligible service members who were either at pay grade E-6 and below with at least 19.5 years of active military service, or at pay grade E-7 and above with at least 19.5 years of active military service and three or more years of service at their current pay grade that had not been reviewed by the CRSP in the two years prior. (AR 89). The 2014 CRSP reviewed all personnel grade "E-7 and above with 19 or more years of active military service who have three or more [years'] time in grade as of 1 June 2014." (AR 131). Those members reviewed in 2012 or 2013 were excluded from 2014 CRSPs. (AR 132).
Communication between selected members and the CRSPs was limited to a written memorandum with a command signature, without attachments, and less than two pages in length. (AR 18, 33-34, 59, 92, 133). Service members selected for involuntary retirement were permitted to appeal only in circumstances of "material error, newly discovered evidence, or the presence of improper documents" in the member's personnel file. (AR 19, 34, 59, 92, 133).
From 2010 to 2014, the Coast Guard selected a total of 832 service members for involuntary retirement. (Pls.' Mot. Ex. 12 at 8). At the end of fiscal year 2014, "the number of actual enlisted service members (31,126) had dropped to more than 1,000 below the authorized number of enlisted billets (32,368)." (Id. at 9). Accordingly, "the Coast Guard decided that it was not necessary to hold another CRSP in 2015." (Id. (citing AR 164-65)). Throughout this multi-year process, the Coast Guard "generally did not eliminate the billets that were occupied by the enlisted service members in higher grades (E-7 and above) who were selected for involuntary retirement" but did reduce numbers of enlisted billets for grades E-6 and below. (Id. at 9-10). Notably, the Coast Guard did not eliminate the billets Plaintiffs held prior to their involuntaryretirement. (Pls.' Mot. Ex. 8 at 7-8). From 2009 to the end of 2015, the Coast Guard reduced...
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