Free Response to Motion - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS LOURDES HYDE, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 07-828C (Judge Firestone)

PLAINTIFF'S RESPONSE AND WRITTEN OBJECTION TO DEFENDANT'S MOTION FOR REMAND The Plaintiff, Lourdes Hyde, by and through undersigned counsel, hereby responds and objects to Defendant's Motion to Remand filed on February 11, 2008. The Remand requested by Defendant is premature at best, and an inappropriate attempt to bypass proper judicial review of the Department of Navy ("Navy") Board of Correction of Naval Records' ("BCNR" or "Board") decision, at worst. The Defendant asks for a remand so that the BCNR can consider "new" evidence that will be created by the Navy (a second handwriting analysis to be conducted by the United States Army Criminal Investigative Laboratory ("USACIL")), and submitted to the Board for consideration, resulting in a new decision by the Board, creating a new administrative record to be submitted to the Judge in this case. Defendant has cited no facts or case law that would allow such new evidence to be created by the Navy, nor considered by the Board, and also offers no facts or case law that would make remand proper at this time. Accordingly, for all the reasons discussed herein, and the oral arguments made at the status conference in this case, Plaintiff respectfully submits that Defendant's Motion to Remand should be denied.1

1 Given the limited facts and argument contained in Defendant's Motion to support it's request for Remand, Plaintiff is significantly hampered in her crafting of a response. Accordingly, if the Defendant files a reply to this response, Plaintiff requests permission to file a sur-reply. 1

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In addition, at this time, the entire Administrative Record has not been submitted to the Judge, nor Plaintiff. Plaintiff submits that the Court cannot make a decision on this Motion, without at a minimum, having the complete Record before it. STATEMENT OF RELEVANT FACTS 1. The Plaintiff, Lourdes Hyde, is the widow of Reginald P. Hyde, a Retired Petty Officer of

United States Navy. Comp. ¶3. 2. The Defendant, the United States of America, is responsible for the payment of the benefits

owed to the Plaintiff under the Survivor Benefits Plan ("SBP"), 10 U.S.C. § 1448(a)(3)(A), a statute which creates a substantive right enforceable against the United States of America for money damages. Comp. ¶4. At the status conference in this case, the Defendant stated that it does not challenge the Court's jurisdiction in this case. 3. On May 12, 1996, Reginald Hyde apparently executed DD Form 2656 ("Form 2656") and

elected not to participate in the SBP. Compl. ¶¶ 5-6; Exhibit 1. 4. Section VII of DD Form 2656 is entitled "Survivor Benefit Plan Election." Mr. Hyde

checked box "g" and apparently signed the form in Section IX. Compl. ¶6; Exh. 1. 5. Although service members may elect not to participate in the SBP, pursuant to 10 U.S.C. §

1448(a)(3)(A), "[a] married person who is eligible to provide a standard annuity may not without the concurrence of the person's spouse elect [] not to participate in the Plan." 6. Section VIII of Form 2656 is entitled "Survivor Benefit Spousal Concurrence." This section

is completed by a service member's spouse if full coverage is not elected. Compl. ¶7; Exh. 1. 7. Prior to the Plaintiff's husband's death, Plaintiff never observed or reviewed the contents of

the DD Form 2656, nor did she have any knowledge of Mr. Hyde's decision not to participate in the Plan. Compl. ¶¶ 9-10; see Exh. 1. 2

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8.

The writing of the Plaintiff's name, "Lourdes A. Hyde," as contained in box 35 of Section

VIII on the copy of DD Form 2656, is not the signature of the Plaintiff, as the Plaintiff never signed the copy of DD Form 2656. Compl. ¶10. 9. The Plaintiff does not know, personally or professionally, the witness, "Ernest R. Walker,"

listed in box 37 and box 43 of Section VIII on the copy of DD Form 2656. Compl. ¶11. 10. The Plaintiff never received counseling from the United States Navy or any other military

office concerning the effects of her husband's decision not to participate in the Plan. Compl. ¶12. 11. At no time did the Plaintiff concur or consent with Mr. Hyde's apparent election regarding

the Plan. Compl. ¶13. 12. 13. 14. 15. On June 1, 1996, Mr. Hyde retired from the United States Navy. Compl. ¶14. On February 12, 2005, Reginald Hyde died. Compl. ¶ 15. Plaintiff was married to Mr. Hyde at the time of his death on February 12, 2005. Compl. ¶3. On February 14, 2005, the Plaintiff was informed of her late husband's election to not

participate in the Plan. Compl. ¶16. 16. On May 20, 2005, the Plaintiff timely petitioned the Department of the Navy, Board for

Correction of Naval Records to amend her husband's records to show that he elected to participate in the Plan retroactively back to May 1994. In her petition, the Plaintiff stated the writing of her name contained in box 35 on the copy of DD Form 2656 apparently signed by Mr. Hyde was not in fact her signature. Compl. ¶ 17. 17. 18. On September 7, 2005, the BCNR denied the Plaintiff's petition. Exhibit 2. In November 2005, the Plaintiff petitioned the BCNR with supplemental evidence: an

opinion of Board Certified Document Examiner, Cina L. Wong. Ms. Wong's Curriculum Vitae and General Resume was also submitted to the Board. Exhibit 3. 3

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19.

Ms. Wong compared the DD Form 2656, with 15 examples of Mr. Hyde's signature, and 15

examples of Mrs. Hyde's signature and concluded that: Based upon thorough analysis of these items, and from an application of forensic document examination principles and techniques, it is my professional opinion, that the hand that authored the [15 examples of Mrs. Hyde's handwriting] was NOT the same hand that signed the signature "Lourdes A. Hyde" in the [DD form 2565]. Exh. 3, pg. 2 (emphasis in original). Accordingly, Ms. Wong affirmed that the writing of Plaintiff's name contained in box 35 on the copy of DD Form 2656 was in fact not the signature of the Plaintiff. Compl. ¶18; Exhibit 3. 20. On February 15, 2006, the BCNR again denied the Plaintiff's petition. Exhibit 4. The

BCNR found, despite the opinion of Ms. Wong, and the other evidence presented, that there was "insufficient [evidence] to establish the existence of probable material error or injustice." Id. pg. 2. 21. Attached to the Board's February denial was a Memorandum dated January 17, 2006 by the

Department of Navy, Office of Legal Counsel. Exhibit 5. In the opinion, the Navy found that Plaintiffs' evidence, including the assertion that the signature was not hers, and Ms. Wong's opinion that the signature was not Plaintiff's, did not "meet, let alone pass the threshold of `substantial evidence' to overcome the presumption" that officials properly discharged their duties. Exhibit 5. 22. The Legal Counsel opinion also references a Pers-62B advisory opinion dated May 18, 2005

discussing a case in which DFAS-CL obtained an affidavit from the spouse indicating that her signature was forged and a similar affidavit from the witness shown on the form. Id. In this case, as Plaintiff does not know the witness, she could not provide such a statement from him. 23. Neither the Navy nor the BCNR alleged in its documents that Mr. Walker was an employee

of the Navy or otherwise known to the Defendant. See Exhs. 2, 4 and 5. 24. In response to the Denial by the Board, the Plaintiff filed the instant complaint. 4

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25.

Defendant now asks this Court to remand this case to the Navy for three purposes: 1) to

obtain the results of a handwriting analysis to be conducted by the USACIL; 2) for the BCNR to reconsider its denial of Mrs. Hyde's claim, in light of the results of the handwriting analysis to be conducted by the USACIL; and 3) for the BCNR to explain in detail the rationale supporting its final decision upon remand of Mrs. Hyde's claim. Defendant's Motion. 26. Defendant submits that "when the BCNR examined Mrs. Hyde's petition for amendment of

her husband's records, it did not have the benefit of a USACIL handwriting analysis." However, it did have the handwriting analysis of Ms. Wong. 27. At the time of its original consideration, neither the BCNR nor the Navy, requested USACIL

to provide a handwriting analysis, or ask the Plaintiff to provide more then one opinion. 28. Defendant's counsel represented at the status conference that the BCNR did not have

authority to seek a handwriting analysis from USACIL during its consideration of this matter. 29. The BCNR is "not an investigative body." Department of the Navy, Procedures of the Board

for Correction of Naval Records, SECNAVINST 5420.193, Section 2b., Exhibit 6. 30. Defendant's counsel represented at the status conference that the Navy had the ability to seek

a handwriting analysis from USACIL during its consideration of this matter, but offered no such specific authority for that ability. 31. Court. Legal Analysis Legal Standards This Court may review the action of the BCNR to determine whether the administrative body acted in a manner that was arbitrary, capricious, contrary to law, or unsupported by substantial 5 The full and complete Administrative Record in this case has not been presented to the

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evidence. See Chappell v. Wallace, 462 U.S. 296, 303 (1983); Roth v. United States, 378 F.3d 1371, 1381 (Fed. Cir. 2004); Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir. 1986); Doyle v. United States, 220 Ct. Cl. 285, 311 (1979); Sanders v. United States, 219 Ct. Cl. 285, 298-99 (1979). "A court may find a correction board's decision arbitrary and capricious if the board entirely fails to consider an important aspect of a problem, offers an explanation for its decision that runs counter to the evidence before the board, or is so implausible that it could not be ascribed to a difference in view or the product of board expertise." Van Cleave v. United States, 66 Fed.Cl. 133, 136 (2005) (citation omitted). This court does not simply "rubber stamp" the agency's decision however in mild-mannered deference. Livenwood vs United States 49 Fed.Cl. 413, 417 (2001), citing Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 US 89, 97 (1983). The standard in these cases is broadly referred to as the "substantial evidence" rule. See Heisig vs. United States, 719 F.2d 1153 (Fed.Cir. 1983). The Tucker Act authorizes this court "to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper and just." 28 U.S.C. § 1491(a)(2); see RCFC 52.2; accord Harris v. United States, 8 Cl. Ct. 299, 303 (1985). RCFC 52.2 describes the procedure according to which this court may execute its remand authority. "An order of remand shall (A) delineate the area of further consideration or action deemed warranted on the remand, (B) fix the duration of the remand period, not to exceed 6 months, and (C) specify the extent to which court proceedings shall be stayed during the remand period." RCFC 52.2(a)(2). This statutory authority gives the courts the flexibility to require exhaustion of correction board remedies in cases in which the benefits of exhaustion are applicable, but to proceed directly to adjudication if the court concludes that resort to the correction board would not serve a useful purpose. In cases where the court concludes that remand to the Board would not serve a useful 6

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purpose, the Tucker Act authorizes the court to issue orders directing correction of applicable records. See 28 U.S.C. § 1491(b). In other words, if this Court finds that the Board's decision was arbitrary, capricious, contrary to law, or unsupported by substantial evidence, the Court may remand the case to the BCNR with an order to correct the disputed records and for the disputed funds to be paid to Plaintiff. See e.g. Kelly vs. United States, 10 Cl.Ct. 579 (1985) (Court ordered judgment in favor of plaintiff for the amount stipulated and directed the Secretary of the Air Force to change plaintiff's late husband's military records in a manner consistent with Opinion), aff'd by Kelly v. U.S., 826 F.2d 1049 (Fed.Cir. 1987); Long v. United States, 12 Cl. Ct. 174, 176, 177 (1987) (remand to Board for the Correction of Military records); Harris v. United States, 8 Cl. Ct. 299, 303 (1985) (same); Evensen vs. United States, 228 Ct.Cl. 207, 654 F.2d 68 (1981) (same). Legal Argument Defendant asks for a remand so that the BCNR can consider a second handwriting analysis to be conducted by the United States Army Criminal Investigative Laboratory (at the behest of the Navy), and issue a new decision based on that new evidence. Defendant has cited no facts or case law that would allow such new evidence to be created by the Navy, nor considered by the Board, and also offers no facts or case law that would make remand proper at this time. Plaintiff submits that this Motion should be denied because 1) no such authority has been offered; and 2) once the administrative record is before the Court, the Judge can determine that the BCNR's decision denying Plaintiff's request to correct the records was arbitrary, capricious, unsupported by substantial evidence, or contrary to applicable statutes and regulations. Also, if after full review of the administrative record, the Judge believes a remand is proper, the Judge may order such remand at that time. Now, it is premature. The only legal authority cited by the Defendant in it's Motion for Remand is King v. United 7

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States, 65 Fed. Cl. 385, 391 (Fed. Cl. 2005). Defendant cites King for the proposition that "this Court's "review of military benefits decisions involving Correction Boards typically are based on an administrative record consisting of the documents and evidence that were before the Correction Board, any transcripts of proceedings, and the documents memorializing the board's determinations." Motion at pg. 3.2 Given this authority, the Court should review the existing administrative record to determine whether the BCNR's decision comports with the legal standard applicable to its decision. There is nothing in King that supports Defendant's Motion for a Remand. However, without explaining the connection, Defendant cites King, and then takes a legal leap to the conclusion that a remand is "necessary to allow the BCNR to consider USACIL's opinion and create a record of its decision based upon new information that it will be placed before it." Defendant's Motion at pg 3 (emphasis added). Such a remand is not "necessary," but a thinly veiled attempt to create a different administrative record for the Court's review. A record that is presumably more favorable to the Defendant. This Court has noted that it may remand matters back to Correction Boards for consideration after making a determination that the Board did not consider or address evidence before it that may have had the effect of changing the result. See Six vs. United States, 71 Ct.Cl. 671, 679-689 (2006); Greene vs. United States, 65 Fed.Cl. 375 (2005) (because the decision of the ABCMR provides no explanation as to why Mr. Greene's claim was denied, or even any indication that it was considered, the matter is remanded); Lopez-Velazquez vs. United States, 69 Fed.Cl. 64 (2005) (Although the

2 See also, See Bishop v. United States, 26 Cl. Ct. 281, 285 (1992)(Court review of military benefits decisions involving Correction Boards typically are based on an administrative record.) . There are cases which support that a plaintiff in military pay cases are entitled to supplement the administrative record with additional evidence, see e.g. Heisig vs. United States, 719 F2d. 1153, 1156 (Fed. Cir. 1983). If the Court finds that Plaintiff is allowed to supplement the instant record, then remand is most definitely premature. 8

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AFBCMR may have failed to consider other pertinent evidence, it seems clear that it did not consider the Air Force records of its investigation; therefore, the court find remand appropriate); Istivan vs. United States, 231 Ct.Cl. 671, 689 F.2d 1034, 1038-9 (1982) (remanding military disability retirement claim where Board failed to provide explanation for its actions). In addition, the Supreme has identified certain circumstances under which remand is appropriate: If the record before the agency does not support the agency action [or] if the agency has not considered all relevant factors . . . the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); Florida Power & Light Co. v. Lorion, 470 U.S.729, 744 (1985); see also Diversified Maint. Sys., Inc. v. United States, 74 Fed. Cl. 122, 127 (2006) ("the views expressed in Florida Power & Light reflect long-standing administrative practice and precedents"). 32. This case does not meet the standard for remand. The BCNR apparently did consider the

evidence before it, but found it insufficient. Therefore, the matter is ripe for the Court to evaluate whether there is substantial evidence to support the BCNR's decision. In November 2005, the Plaintiff petitioned the BCNR with supplemental evidence: an opinion of Board Certified Document Examiner, Cina L. Wong. Ms. Wong compared the DD Form 2656, with 15 examples of Mr. Hyde's signature, and 15 examples of Mrs. Hyde's signature and concluded that: Based upon thorough analysis of these items, and from an application of forensic document examination principles and techniques, it is my professional opinion, that the hand that authored the [15 examples of Mrs. Hyde's handwriting] was NOT the same hand that signed the signature "Lourdes A. Hyde" in the [DD form 2565]. Exh. 3, pg. 2 (emphasis in original). Accordingly, Ms. Wong affirmed that the writing of Plaintiff's name contained in box 35 on the copy of DD Form 2656 was in fact not the signature of the 9

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Plaintiff. Exhibit 3. The BNCR found that despite the opinion of Ms. Wong, and the other evidence before it, that there was "insufficient [evidence] to establish the existence of probable material error or injustice." See Exh. 4, pg. 2. The Navy's recommendation, on which the BCNR relied, found that Plaintiffs' evidence, including the assertion that the signature was not hers, and Ms. Wong's opinion that the signature was not Plaintiff's, did not "meet, let alone pass the threshold of `substantial evidence' .... See Exh. 5, pg. 2. Plaintiff submits that the Board's conclusion is not supported by substantial evidence. It is not enough for the [Defendant] to rely on the presumption of official procedural regularity when there is contrary credible evidence presented to overcome the presumption, as there was here. See Kelly vs. United States , 826 F.2d 1049, 1053 (1987). In this case, there was credible evidence that the signature on the Form 2656 was not Plaintiff's. Despite this, the Navy recommended, and the BCNR denied Plaintiff's request to correct records. Plaintiff believes this decision should be overturned by the Court. Finally, Plaintiff submits, it is only after a full review of the record (not currently before the Judge) that a determination can be made if a remand is necessary and thus the Defendant's Motion should, at the very least, be denied as premature. CONCLUSION For all of the foregoing reasons, the Judge should deny Defendant's Motion for Remand. March 10, 2008 Respectfully Submitted,

_____________________ Sandra Mazliah, Bar No. 44074 PASSMAN & KAPLAN, P.C. 10

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1090 Vermont Ave., N.W., Suite 500 Washington, DC 20005 Tel: (202)789-0100 Fax: (202)789-0101 Attorney for Plaintiff

11

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS LOURDES HYDE, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 07-828C (Judge Firestone)

PLAINTIFF'S INDEX TO EXHIBITS

Exhibit 1:

DD Form 2656 apparently executed on May 12, 1996 by Reginald Hyde

Exhibit 2:

Denial of Request to Correct Records, dated September 7, 2005.

Exhibit 3:

Opinion of Board Certified Document Examiner, Cina L. Wong, with Curriculum Vitae and General Resume.

Exhibit 4:

Denial of Request to Correct Records, dated February 15, 2006.

Exhibit 5:

Memorandum dated January 17, 2006 by the Department of Navy, Office of Legal Counsel.

Exhibit 6:

Department of the Navy, Procedures of the Board for Correction of Naval Records, SECNAVINST 5420.193, Section 2b., Exhibit 6.

1

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