Free Response to Motion [Dispositive] - District Court of Federal Claims - federal

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No. 05-455C (JUDGE SWEENEY)

IN THE UNITED STATES COURT OF FEDERAL CLAIMS CORT ANCMAN AND EILEEN ANCMAN, Plaintiffs, v. THE UNITED STATES, Defendant

PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS, AND PLAINTIFFS' CROSS-MOTION FOR JUDGMENT ON THE ADMINISTRATIVE RECORD

Margaret K. Krasik, Esq. Attorney for Plaintiffs 600 Forbes Avenue Pittsburgh, Pa. 15282 Telephone: 412-396-6302 Fax: 412-396-4014 Email: [email protected] February 5, 2007

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TABLE OF CONTENTS

Table of Authorities ............................................................................ii Plaintiffs' Response in Opposition to Defendant's Motion to Dismiss, And Plaintiffs' Cross-Motion For Judgment on the Administrative Record ........................................................................ ......1 Statement of Questions Involved ................................................ ...... ...2 Statement of Facts ..............................................................................3 Summary of the Argument .....................................................................8 Argument .......................................................................................... 9

1. Statutes, regulations, policies and practices that govern Air Force retirement pay constitute a money-mandating source of law for Tucker Act purposes because they are sources of law that can fairly be Interpreted as mandating monetary compensation by the government for Harm sustained by the Plaintiffs here. .....................................................9

2. Plaintiffs are entitled to judgment on the administrative record. The Assistant Secretary's decision to reject the AFBCMR's recommendation and deny Plaintiffs' petition was arbitrary, capricious, an abuse of discretion and unsupported by substantial evidence in the administrative record. Substantial evidence in the administrative record supports the Board's recommendation that the Plaintiffs be awarded compensation to cure an injustice. ....... ..................................................31

Conclusion ....................................................................................... 36

Appendix DoD Financial Management Regulation Vol. 12, Chap. 18 Vol. 7b Foreward Vol. 7b Chap. 10 Air Force Instruction 36-2604 Air Force Instruction 3603203, Attachment 8

Appendix Page

1 4 6 9 42

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Appendix, cont'd. AFBCMR 00-01988 (Case 4) AFBCMR 00-00105 (Case2) AFBCMR 00-02254 AFBCMR 02-01500 Department of Defense Instruction 1336.6 (1994) 44 50 56 60 66

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TABLE OF AUTHORITIES CASES PAGE(S)

Covington v. Department of Health and Human Services, 750 F.2d. 937 (Fed.Cir.1984).................................................................. 27 Duhon v. United States, 198 Ct. Cl. 568, 461 F.2d 1278 (1972) ............................................... 20, 22 Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 372 F.2d 1002 (1967)....................................................9, 20 Fisher v. United States, 402 F.3d 1167(Fed. Cir. 2005) ................................................ 10, 22, 23, 30 Gollehon Farming v. United States, 207 F.3d 1373 (Fed. Cir. 2000) .............................................................. 10 Hoffman v. United States, 894 F.2d 380 (Fed. Cir. 1990) ................................................................ 34 Longhofer v. United States, 29 Fed.Cl. 595 (1993) ..................................................................... 25, 26 Lynn v. United States, 58 Fed.Cl. 797 (2003) .......................................................................... 26 Martinez v. United States, 333 F.3d 1295 (Fed. Cir. 2003) ......................................................... 23, 24 OPM v. Richmond, 496 U. S. 414 (1990) ........................................................................... 35 Sammt v. United States, 780 F.2d 31 (Fed. Cir.1985) .................................................................. 26 Sanders v. United States, 219 Ct. Cl. 285, 594 F.2d 804 (1979) ................................................ 22, 31 Scharf v. Department of the Air Force, 710 F.2d 1572 (Fed. Cir. 1983) ............................................................ 26

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Skaradowski v. United States, 200 Ct. Cl. 488, 471 F.2d 627 (1973) ..................................................... 20 Strickland v. United States, 423 F.3d 1335 (Fed. Cir. 2005) .............................................................. 31 Tippett v. United States, 185 F.3d 1250 (Fed. Cir. 1999)............................................................... 25 United States v. Mitchell, 463 U.S. 206 (1983) .............................................................................. 9 United States v. Testan, 424 U.S. 392 (1976) .............................................................................. 9 United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003) ............................................................................ 10 Yee v. United States, 512 F.2d 1383.................................................................................... 19

STATUTES 10 U.S.C. 1401-1414.................................................................................... 12 10 U.S.C. § 1405........................................................................... 12, 28, 33, 34 10 U.S.C. § 1552...................................................................... 21, 22, 23, 25, 35 10 U.S.C. § 8911 ......................................................................................... 12 28 U.S.C. § 1491........................................................................................... 9 31 U.S.C. § 1341(a)(l )(B) .............................................................................. 35 National Defense Authorization Act for Fiscal Year 1993, Pub. L. No. 102-484, § 4403, 106 Stat. 2315, 2702-2704 (1992) (TEMPORARY EARLY RETIREMENT AUTHORITY) ...........................................12

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ADMINISTRATIVE REGULATIONS Department of Defense Financial Management Regulation 7000-14R FMR, Vol. 12, Chap. 18, 1801................................................................ 13 FMR, vol. 7B, Forward...........................................................................14 FMR, vol. 7B, Chap. 10........................................................................ 14 Department of Defense Instruction 1336.6, Correction of Military Records................................................................ 25 Air Force Instruction 36-2604, Personnel: Service Dates and Dates of Ranks.......................................... 15 Air Force Instruction 36-3203, Service Retirements.............................................................. 15, 16, 25, 32

SECONDARY AUTHORITIES Alfred C. Aman, Administrative Law, (2d ed. West Pub., 2001) .............................. 16 G.C. Sisk, The Tapestry Unravels; Statutory Waivers of Sovereign Immunity and Money Claims Against the United States, 71 Geo. Wash. L. Rev. 602 (2003) ......................................................... 10 Jeffrey Glosser & Keith Rosenberg, Military Correction Boards: Administration Process and Review by the United States Court of Claims, 23 Am. U. L. Rev. 391 (1973) ............................... 17, 19, 20

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CORT ANCMAN and EILEEN ANCMAN, Plaintiffs

v.

THE UNITED STATES, Defendant

) ) ) ) ) ) ) ) ) ) ) )

No. 05-455C (Judge Sweeney)

PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS, AND PLAINTIFFS' CROSS-MOTION FOR JUDGMENT ON THE ADMINISTRATIVE RECORD

Plaintiffs respectfully request denial of Defendant's motions to dismiss pursuant to RCFC 12(b)(1) and 12(b)(6). Further, Plaintiffs, pursuant RCFC 56.1, respectfully request that the Court issue judgment on the administrative in their favor because the Assistant Secretary here acted arbitrarily, in abuse of discretion, and without substantial evidence in the record to support her denial of the Plaintiffs request for correction of military records. In support of these requests, the Plaintiffs rely on their Complaint, the administrative records in their cases, Plaintiffs' response and additions to the Defendant's statement of facts, said response filed contemporaneously with this motion, and the following brief and appendix.

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STATEMENT OF QUESTIONS INVOLVED

I.

Do statutes, regulations, policies and practices that guide the Air Force's administration of the retirement pay system constitute a money-mandating source of law for Tucker Act purposes because they can fairly be interpreted to mandate monetary compensation by the government for harm sustained by the Plaintiffs?

II.

Was the Assistant Secretary's decision to reject the AFBCMR's recommendation to increase the Plaintiffs' retirement pay arbitrary and capricious, an abuse of discretion, and unsupported by substantial evidence?

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STATEMENT OF THE FACTS

Eileen G. Ancman and Cort B. Ancman were active duty Majors in the United States Air Force until their retirement on August 31, 1998. Cplt. ¶¶ 3,6,8. Mr. and Mrs. Ancman applied for early retirement under The Fiscal Year 1998 Drawdown Program for Temporary Early Retirement Authority ("TERA") which was offered for a limited time by the Air Force on a first come, first served basis. AR1 at 39, 67; AR2 36, 64. Despite arriving at Pentagon Military Personnel Flight ("MPF") at 4:30 AM on December 2, 1997, the first day the program was offered, the Ancmans were not first in line to apply under TERA. AR1 at 39; AR2 36. On the same day, before submitting TERA applications, the Ancmans were given by MPF personnel written estimates of retired pay (before taxes) of $1,535 for Eileen Ancman, and $1,483 for Cort Ancman. Cplt. ¶ 7; AR1 at 16, 39; AR2 at 15, 36. These estimates were generated with a computerized program by personnel at the MPF. Cplt. ¶ 7; AR1 at 25; AR2 at 22. At this same time the Ancmans were counseled by--and allowed to ask questions of--the MPF personnel. Cplt. ¶ 7; AR1 at 12; AR2 at 11. As a condition of submitting their TERA application they were then required to review and sign a Retirement PreApplication Checklist ("pre-retirement checklist") in which they acknowledged that they had received a pay estimate, understood how their retired pay was computed, received counseling, and were given the opportunity to ask additional

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questions. AR1 at 29-30 ¶¶ 6,10; AR2 at 26-27 ¶¶ 6.10. Before signing this checklist they were counseled by the MPF personnel that the computergenerated estimates were accurate within $1 - $2 dollars, a range of accuracy later confirmed by SMSgt. Essa. ¶ 7; AR1 at 23. They were also told that the acceptance of early retirement was "irrevocable" after the one week that TERA applications were accepted. AR1 at 71; AR2 at 70.

Subsequent to receiving the pay estimate from the MPF personnel, the Ancmans contacted DFAS-CL by phone numerous times to update their estimates. They received only a recording that we "...are unable to handle your call in a timely manner now. Please try your call another time". AR1 at 39; AR2 at 36. The Ancmans later discovered from personnel at Nellis and from staff at the office of Senator Bryan that it was known to be very difficult to contact DFAS-CL. AR1 at 39; AR2 at 36. In reality the 10 U.S.C. 1405 date, crucial to determining the Ancman's eventual retirement pay, had not been calculated at the time they received the estimate. AR1 at 26; AR2 at 23. Cort Ancman needed that 1405 date to have his retirement orders issued which in turn were necessary to set up his household move. This 1405 was not computed until after "many additional months" and "phone calls", which was long after the Ancmans window of revocability had closed. AR1 at 68, 71; AR2 at 65, 70.

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Ultimately, Mr. and Mrs. Ancman's retirement applications were approved, and on August 3l, 1998, they were retired. Cplt. ¶ 8. At the time of her retirement, Eileen Ancman had served 15 years, 3 months, and 13 days of active service. AR1 at 4. At the time of his retirement, Cort Ancman had served 15 years, 2 months, and 11 days of active service. AR2 at 4.

On September 25, 1998, the Defense Finance and Accounting ServiceCleveland Center ("DFAS") released a Summary of Retired Pay Account to Mr. and Mrs. Ancman that showed its calculations of the retired pay (before taxes and deductions) that the Ancmans would receive. Eileen Ancman was to receive $1,413 in gross retired pay, and Cort Ancman was to receive $1,393 in gross retired pay, a difference of $122 and $90 respectively. Cplt. ¶ 9; AR1 at l8-l9, 25; AR2 at l7-l8, 22. On October 7, 1998, Mr. and Mrs. Ancman sought correction of their military records through the AFBCMR, requesting that their retirement pay be increased to reflect the amounts set forth in the estimates they received in December 1997. Cplt. ¶ 11; AR1 at 11; AR2 at 10.

On June 17, 1999, the AFBCMR recommended that Mr. and Mrs. Ancman be granted partial relief by granting 75 percent of the difference in retired pay. AR1 at 7; AR2 at 7. To accomplish the proposed action, the AFBCMR recommended that the plaintiffs' military records be changed to add constructive service to reflect a new total active federal military service date that would then

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entitle the plaintiffs to 75 percent of the difference in retired pay. AR1 at 7; AR2 at 7. The Board recommended this equitable relief because it found sufficient relevant evidence to demonstrate the existence of a probable error or injustice. The Board found that MPF used the wrong date of the Ancman's 1405 date and the led them to believe that there would be only a small difference between its estimate and their actual retired pay. AR1 at 7; AR2 at 6.

The

AFBCMR's

record

of

proceedings,

including

the

board's

recommendation, were forwarded to the Assistant Secretary of the Air Force (Manpower, Reserve Affairs, Installations and Environment) for review and final action. AR1 at 2, 9-10; AR2 at 2, 8-9. On November 30, 1999, the Assistant Secretary denied Mr. and Mrs. Ancman's application for relief based on her opinion that the Ancmans signed a waiver about the estimates, and that they had the time to contact DFAS-CL for an "official estimate" and didn't. In addition she based her opinion on a lack of "corroborating evidence" that they were mis-counseled by MPF or attempted to receive an official estimate form DFAS-CL subsequent to the MPF estimate. At no time did the Assistant Secretary claim that she or the AFBCMR, did not have the authority to grant the relief awarded by the board. ARI at 9-10; AR2 at 8-9.

On December 20, 1999, Mr. and Mrs. Ancman were notified that the Assistant Secretary had denied their applications because the evidence the Ancmans presented did not demonstrate the existence of probable material error

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or injustice. Cplt. ¶ 13; ARI at 2; AR2 at 2. On April 27, 2005, Mr. and Mrs. Ancman filed suit in this Court challenging the Assistant Secretary's decision to deny their applications for relief before the AFBCMR.

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SUMMARY OF THE ARGUMENT FOR THE PLAINTIFFS This Court has jurisdiction over Plaintiffs' claims for increased retirement pay because Acts of Congress and Department of Defense and Air Force regulations, policies, and practices can fairly be read to mandate the monetary relief that they seek. Congressional statutes covering military retirement pay and the specialized early retirement initiative at issue here, and applicable mandatory Department of Defense and Air Force regulations, policies, procedures and practices together constitute a money-mandating source of law that supports this Court's subject matter jurisdiction under the Tucker Act. Further, and in the

alternative, the statute establishing the Air Force Board for Correction of Military Records itself, along with the express procedures and practices of the Board and the Secretary, constitute a money-mandating source of law for Tucker Act purposes. The Plaintiffs' retirement cannot be presumed to be voluntary, and

therefore this Court is not deprived of subject matter jurisdiction under the Tucker Act. Finally, the Under Secretary here, acting on behalf of the Secretary in reviewing an reversing the corrections board decision, abused her discretion, acted arbitrarily and capriciously, and rendered a decision that was unsupported by substantial evidence. In addition, an award of money damages to the

Plaintiffs would not violate the Appropriations Clause of the United States Constitution. Accordingly, the Court should grant judgment on the administrative record in favor of Plaintiffs.

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ARGUMENT FOR THE PLAINTIFFS

I.

Statutes, regulations, policies and practices that govern Air Force retirement pay constitute a money-mandating source of law for Tucker Act purposes because they are sources of law that can fairly be interpreted as mandating monetary compensation by the government for harm sustained by the Plaintiffs here.

As has been well established, the Tucker Act, 28 U.S.C. § 1491, does not create enforceable substantive rights, but merely provides a limited waiver of sovereign immunity while granting this Court subject matter jurisdiction over cases that are defined to come within its ambit. U.S. 392, 398 (1976); United States v. Testan, 424

United States v. Mitchell, 463 U.S. 206, 216 (1983).

Those who seek to have their claims heard in this Court must find a substantive right to money damages from some other source of law, defined by the Tucker Act as "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 . . . ." 28 U.S.C. § 1491. The substantive law upon which a claimant

depends may grant the right to money damages either "expressly or by implication". Eastport Steamship Corp. v. United States, 178 Ct. Cl. 599, 605, 372 F.2d 1002, 1007 (1967), as cited in Mitchell, 463 U.S. at 217 n. 16.

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"The central question for Tucker Act purposes . . . is to determine whether a particular . . . provision establishes an entitlement to a money remedy to a claimant, as opposed to stating a governmental duty to the public. . . . In sum, a claim is cognizable under the Tucker Act if it is founded upon a . . . provision . . . that contemplates compensation in money for violation of the government's duty" to such an individual. G.C. Sisk, The Tapestry Unravels; Statutory Waivers of Sovereign Immunity and Money Claims Against the United States, 71 Geo.

Wash. L.Rev. 602, 613 and n. 95, citing cases (2003) (emphasis added ). No explicit provision granting a right of action is necessary; neither is the stringent test for finding implied private rights of action applicable. Id. at 626 n. 191, citing United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003). The White Mountain Court recently restated the "money-mandating" definition as follows:
The "fair interpretation" rule [of Mitchell, 463 U.S. 206 (1983)] demands a showing demonstrably lower than the standard for the initial waiver of sovereign immunity. . . . It is enough, then, that a statute creating a Tucker Act right be reasonably amenable to the reading that it mandates a right of recovery in damages. While the premise to a Tucker Act claim will not be "lightly inferred," . . . a fair inference will do.

White Mountain, 537 U.S. at 472-73 , cited in Fisher v. United States, 402 F.3d 1167, 1173-1174 (Fed. Cir. 2005). In Fisher, the Federal Circuit also addressed the question of how the Court of Federal Claims must address the "moneymandating" issue, given that in the typical case the issue of the Court's Tucker Act jurisdiction is not easily separated from the "merits" question. Sitting en banc with regard to its consideration of that issue, the Court overruled Gollehon Farming v. United States, 207 F.3d 1373 (Fed. Cir. 2000), which had prescribed

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a two-step approach to determining whether a statute was money- mandating. The Gollehon first step required the plaintiff merely to make a non-frivolous allegation that a source of law could be interpreted as money-mandating. Given a sufficient allegation, the Court could take jurisdiction and then in a second step decide whether the legal provision was in fact money-mandating. A negative finding meant the Court would dismiss the complaint for failure to state a claim upon which relief could be granted. Id. at 1379. The Fisher en banc panel

replaced the two-step test with a one-step process, whereby "the determination that the source is money-mandating shall be determinative both as to the question of the Court's jurisdiction and thereafter as to the question of whether, on the merits, plaintiff has a money-mandating source on which to base his cause of action. If the Court's conclusion is that the source as alleged and pleaded is not money-mandating, the Court . . . shall dismiss the cause for lack of jurisdiction." Fisher, 402 F.3d at 1173. If the Court has taken jurisdiction, however, upon a finding that a source of law mandates compensation, the Court must decide whether the plaintiff's case fits within the scope of the source. That is, the Court decides either that the plaintiff wins on the merits or that the plaintiff loses on the merits for failing to state a claim on which relief can be granted. Id. at 1175-76. Plaintiffs here, previously acting pro se, have sufficiently alleged and pleaded a comprehensive statutory and regulatory military retirement pay scheme that mandates the particular compensation that they seek. See, e.g., Cplt. ¶¶ 19 & 20. Thus the Court has subject matter jurisdiction. Further, they

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have sufficiently established all elements of the cause of action. Neither the defendant's RCFC 12(b)(1) nor defendant's RCFC 12(b)(6) motion should be granted.

A.

The complex statutory and regulatory scheme that governs military retired pay is money-mandating in this case because it can be reasonably interpreted to mandate payment of money to Plaintiffs as compensation for the injustice committed by the military retirement authorities.

Retirement pay based on length of service for Air Force officers in Plaintiffs' position is statutorily mandated and controlled by 10 U.S.C. § 8911. Section 8926 of the same title provides that years of active service will be the basis of the computation of retirement pay of those retiring under Section 8911. A 1992 Act of Congress established the Temporary Early Retirement Authority, Public law 102-484, § 4403, 106 Stat 2315, 2704-2704 (1992), which provided that the provisions of 10 U.S.C. § 8911 could be applied to Air Force officers with less than 20 but at least 15 years service. Sec. 4403(b)(3). The legislation also provided that "the Secretary of each military department may prescribe

regulations and policies regarding the criteria for eligibility for early retirement by reason of eligibility pursuant to this section and for the approval of applications fro such retirement. Such criteria may include factors such as grade, years of

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service and skill." Section 4403(d). In addition, chapter 7 of Title 10, comprising 10 U.S.C. 1401-1414, sets out in detail the basis and method for computing a retired members retirement pay, including the "Section 1405 date" that is based on a member's active service. It is clear that these statutory provisions are

money-mandating in that they mandate compensation (retired pay) for retired Air Force officers who fall under them. The money-mandating sources of law on which the Plaintiffs rely here, however, extend beyond the statutory provisions and include the express and mandatory regulations and directives1 through which the Air Force administered the early retirement program. Department of Defense Financial Management Regulation 7000-4R [FMR], Plaintiffs' Appendix pp. 1-3, addresses the TERA Program. The FMR establishes procedures for "funding, accounting for, FMR, Vol. 12,

disbursing, and reporting retirement payments" under TERA, Chap. 18, 1801.

Section 180304 particularly speaks to the responsibilities of

the Defense Finance and Accounting Service (DFAS) to the system and retirees. Under 180304, DFAS was required to "[e]stablish appropriate controls within the accounting system to perform normal accounting and reporting functions for the TERA Program, to "[m]odify military pay systems to compute pay, benefits and withholdings for TERA Program participants, . . [e]stablish methods to distinguish

1

Plaintiffs have attempted to obtain texts of various regulatory documents in the versions that were applicable when they filed their retirement applications. In most cases, those versions are not available and the Plaintiffs are compelled to rely on the text of the currently available documents. In all cases Plaintiffs have avoided relying on specific language that as determinative of Plaintiffs' rights here, and cite the language of the administrative directive to illustrate the complex and mandatory nature of the regime. 13

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personnel participating in the TERA Program from regular active military members" and to "establish procedures to assist early retirees with actions affecting their pay accounts." FMR, vol.12, chap. 18, 180304. TERA retirees, like the Plaintiffs, clearly were intended beneficiaries of the responsibilities imposed on the Air Force by the FMR. Volume 7B of the FMR, "Military Pay Policy and Procedures ­ Retired Pay" , "specifically details entitlements for retired personnel" and "is mandatory for use by all DOD components." FMR, vol. 7B, Foreword. Plaintiffs' Appendix pp. 4-5. Creditable service, gross pay computation, basic pay rates and a

multitude of other details are covered in vol. 7B. Of particular importance to the Plaintiffs' claim is Chapter 10, "Correction of Records". FMR, vol. 7B, Chap. 10.

Plaintiffs' appendix pp. 6-8. This chapter deals specifically with corrections of military records in the retirement pay context, and affirms that the Secretary, acting through a corrections board, may correct any military record where it is "necessary to correct an error or remove an injustice." FMR, vol. 7B, Chap. 10, Section 100101 (emphasis added). This language tracks the language of 10 U.S.C. § 1552, the Corrections Board statute. Section 100103 provides that "[I]f there is a proper correction and a right to the payment of money as result of that proper correction, there must be a change of facts as set out in the original record, or an addition or deletion of a fact. . . . The statute of limitations on a proper correction begins to run from the date of the correction." Finally, payments are not authorized for any claim compensated by private law, Section 100205, and "payments that become due and payable as a result of the correction are

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charged to the applicable current retired pay appropriation . . . ." FMR, vol. 7B, chap. 10, Section 1004. The records correction procedure, then, is incorporated into the mandatory procedures that attach to the retirement process. Myriad other service regulations and administrative materials (e.g., Air Force instructions) form part of the regulatory context. Plaintiffs do not purport to make an exhaustive catalog of all of them, but point out specific examples that exhibit the comprehensive detail and mandatory nature of these directives. Air Force Instruction 36-2604, Personnel: Service Dates and Dates of Ranks [AFI 36-2604], Plaintiffs' Appendix, pp. 9-41, including details on who will compute service dates and what service may be credited when computing the various dates, including the pay date and the 1405 service date. AFI 36-3203: Service Retirements2, is a detailed instruction that controls the responsibilities of various Air Force entities and personnel in the retirement counseling process and specifically addresses a wide range of procedures, including retirement application procedures and use of the pre-retirement checklist that is in issue in this case. This directive mandates details of the counseling process that attend the handling of applications for early retirement, like the applications submitted by Plaintiffs. This directive specified the use of the retirement checklist (AFI 363203, Attachment 7) that was signed by Plaintiffs. AR1 at 28; AR2 at 25. Defendant relies on the fact that Plaintiffs signed the pre-application checklist that acknowledged receipt of retired pay estimates, see., e.g., Def.
2

AFI 36-3203 is over 100 pages long. It is available digitally at www.epublishing.af.mil . Plaintiffs have not reproduced the document in its entirety in the Plaintiffs' Appendix, but will supply the Court with a hard copy or will electronically file a PDF format copy if the Court so desires. 15

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Motion, at 22-23, but directives such as AFI 36-3203 also impose duties on the Air Force. For instance, AFI 36-3203 (2003 version) Attachment 8, "Retired Pay Examples and Explanatory Remarks", Plaintiffs' Appendix pp. 42-43 provided, "Using proper service dates and personnel data, a prospective voluntary retiree should be able to estimate retired pay based on several options...." Section A8.1 (emphasis added) "Figure the years of service for officers according to 10 U.S.C. 1405 . .. ." Section A8.3 . Plaintiffs propose that the Defendant is required to take the bitter with the sweet. If Defendant argues that the terms mandated by Air Force directives bind Plaintiffs, then such terms must also bind the Defendant. Statutes, regulations and mandatory directives like AFI 36-3203 imposed an obligation on the Air Force to take the required steps to provide a legitimate retired pay estimate using the proper service dates. In the course of administering the complex regulatory framework governing retirement eligibility, counseling, and pay calculation the Air Force, like other administrative agencies, possesses inherent ability to exercise its discretion to grant a waiver or an "exception to policy". See Alfred C. Aman, Administrative Law. 2d ed. St. Paul, Minn., 2001, 262-263. The Defendant has argued that neither the Board nor the Secretary had authority to grant the Plaintiffs credit for what the Defendant says is not actual service. (The retirement pay statute, 10 U.S.C. § 8911 et seq., however, nowhere refers to "actual" service, but instead specifies that retirement pay is calculated with regard to "active" service.) In any event, it seems clear that the practice of granting "exceptions to policy" equivalent to waivers of eligibility criteria is part and parcel of the military's

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administration of the retired pay system.

The Corrections Board statutes,

regulations and practice contemplate that the Board (and the Secretary) have such in inherent authority. Plaintiffs argue that when the Corrections Board

found that injustice existed and corrected their service dates in an effort to cure it, the Board, like most administrative agencies, was simply exercising its discretionary powers. In support of this argument, Plaintiffs ask the Court to take judicial notice of certain "Records of Proceedings" of the Air Force Board for Correction of Military Records wherein the Board granted waivers for exceptions to policy in various pay matters.3 Plaintiff does not take the position that these decisions are precedential in any way, but merely sets them out as illustrating the routine nature of the action the Board took in the instant case, and as illustrating "the broad latitude given correction boards to remove error and correct injustice." Jeffrey M. Glosser & Keith A. Rosenberg, Military Correction Boards: Administration Process and Review by the United States Court of Claims, 23 Am.U.L.Rev. 391, 408 (1973). In all of the following cases, the Board found that the applicant had presented sufficient relevant evidence to demonstrate the existence of a

3

See also Sonnenfeld v. United States, 62 Fed. Cl. 336 (2004), for an indication that the "exception to policy" is an acknowledge part of the administrative scheme. In Sonnenfeld a retention officer submitted a "request for exception to policy" on behalf of a service member who sought eligibility for a student loan program. When the request was denied, the service member filed a Tucker Act claim. Id. 337. 17

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probable error or injustice. In Docket No. 00-01988 (Case 4)4 (14 December 2000), Plaintiffs' Appendix pp. 44-49, the Board granted the applicants request that his 1405 date be recomputed to reflect additional active service, even though he could not return to and did not intend to return to active service, after he had been forced into early retirement following a nonselection for promotion that was subsequently reversed. In Docket No. 00-00105 (Case2) (23 July 2001),

Plaintiffs' Appendix pp. 50-55, where it was reasonable to believe that the applicant had relied to his detriment on erroneous advice of DoD personnel and had delayed filing for early retirement, the Board recommended that the applicant's record be corrected to show that as an exception to policy he had in fact applied for early retirement and that his application had been approved. In Docket No. 00-02254 (06 February 2001), Plaintiffs' Appendix pp. 56-59, where the service member died with 19 years, 9 months and 25 days toward retirement, the Board recommended that his records be corrected to show the additional points necessary to gain credit for 20 years of service. In Docket No. 02--01500, (09 October 2002), Plaintiffs' appendix pp. 60-65, where a reservist had retired after he was erroneously told that he was eligible for retired pay, the Board recommended that the applicant be credited with additional points necessary to make him eligible for Reserve retirement. The above-cited instances, and others not set out here, show that the Board considers its mandate to include the correction of injustices even when the remedy for injustice requires the Board to grant limited exceptions to policy in the
4

The applicants are anonymous in the publicly available report of the Board's decisions. 18

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form of waivers of eligibility criteria. In most of the instances, the records indicate that the relief awarded by the Board was allowed to stand. See "Memorandum for the Chief of Staff" appended to the first three decisions cited. In Docket No. 02-01500 (09 October 2002), however--the last decision cited above--the Assistant Secretary for Manpower and Reserve Affairs, acting for the Secretary, overruled the Board's decision, as did the Assistant Secretary in the instant case. In the 2002 case, citing Congressionally-established eligibility criteria, the Assistant Secretary concluded as follows: "[A]bsent substantive evidence of

miscounseling by responsible Air Force personnel, I am compelled to deny his request." Memorandum for the Executive Director. Docket No. 02-01500, at p. 5. The inescapable reality is that the Corrections Boards, charged with an "abiding moral sanction", Yee v. United States, 206 Ct. Cl. 388, 512 F.2d 1383, 1388 (1975), to remedy injustice in cases within their purview, often do justice

by awarding credit for "fictional" service­to use the Defendant's language--in appropriate cases. (See Glosser & Rosenberg, supra, at 407, commenting on a case where an applicant sought relief after he had been misinformed about his service record: "Correction boards are likely to be responsive to such claims when the applicant can demonstrate that it was reliance upon erroneous information provided by the service which prompted his decision to retire prematurely.") The fact that the Secretary may sometimes overturn such a

decision does not support a conclusion that such Board action is never authorized. In the 2002 board case and in the instant case, the Secretary's

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delegate reversed because s/he found the evidence of miscounseling insufficient--thereby clearly implying that in cases where the evidence of miscounseling was sufficient, corrections involving "fictional" service would be upheld. Of course, there will remain on judicial review the question whether the agency decisionmaker acted arbitrarily or abused her discretion, just as there would if the Board had rejected Plaintiffs' request in the first instance. Nevertheless, it is clear that the corrections boards apply a "'liberal standard . . . , pursuant to which the boards have the power, and the . . . duty, to remove injustices and correct errors. . . .[T]he Court has held that when the board has discretion and unreasonably refuses to exercise that discretion, judgment will be entered for plaintiff." Glosser & Rosenberg, supra, at 420-421 and n. 149-152,

quoting Skaradowski v. United States, 200 Ct. Cl. 488, 489, 471 F.2d 627, 628(1973) and citing Duhon v. United States, 198 Ct. Cl. 564, 568, 461 F.2d 1278, 1282 (1972). In Eastport Steamship Corp. v. United States, 178 Ct.Cl. 599, 605-07, 372 F.2d 1002 1007-08(1967), the Court of Claims noted that one group of cases that came within the Tucker Act was that group "where no payment has been made, [and] the allegation must be that the particular provision of law relied upon grants the claimant, expressly or by implication, a right to be paid a certain sum. . . . The . . . category includes the varied litigations in which . . .some specific provision of law embodies a command to the United States to pay the plaintiff some money, upon proof of conditions which he is said to meet."

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The instant case is such a case. The Plaintiffs reasonably relied on what turned out to be significant misinformation about the retired pay they would receive if they retired early under the TERA program. They were misinformed because the Air Force failed to discharge its duties under statutory and regulatory mandates. The Plaintiffs were compelled to act under extreme time pressure, AR1 at 39; AR2 at 39, and were deprived of the opportunity to make an informed choice or to revise or retract their decision at a later time. The records corrections procedure, incorporated into the retirement pay system, and seen in conjunction with the web of the Air Force's duties under the retirement pay system, "embodies a command" to compensate the Plaintiffs when this type of injustice is substantiated. Specific provisions of law, expressly and impliedly, grant the Plaintiffs a right to be paid compensation necessary to cure the unique injustice they suffered. These provisions, then, are money-mandating within the accepted legal definition.

B. The Military Correction Boards Statute, 10 U.S.C. § 1552, is moneymandating in this case where the Plaintiffs claim that the Secretary has improperly failed to correct an error or injustice.

The corrections board statute, 10 U.S.C. § 1552, is a money-mandating statute because it too is reasonably amenable to the interpretation that it mandates a right of recovery in damages and "contemplates compensation in money for violation of the government's duty".

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Defendant's assertion that, because it uses the word "may", the statute permits only discretionary payments and cannot be "mandating", Def. Motion 15, is unsupportable. Defendant misconstrues "may" in § 1552 to be language that allows the Secretary the option, when faced with injustice, of granting relief or not. In fact, it is clear the Board, and thus the Secretary, have the duty to act in the face of injustice. Duhon v. United States, 198 Ct. Cl. 564, 461 F.2d 1278, 1280 (1972). In Sanders v. United States, 219 Ct. Cl. 285, 594 F.2d 804 (1979) (cited also by Defendant at p. 14 of its Motion) the Court observed that even though 10 U.S.C. § 1552 confers discretion on the service Secretaries, they have "the authority and duty to correct records in order to correct an error or remove an injustice and to pay money found to be due when payment is necessary to correct a particular error or injustice. We have reviewed correction board actions in terms of the liberal mandate of the statute to correct errors and remove injustices, and failure to follow the purpose of the statute has been remedied in this Court. . . ." 594 F.2d at 812. The implication of Defendant's argument here

is that Corrections Board decisions that did not award damages would not be subject to judicial review, an unsupportable conclusion. Defendant's further assertion that in any event the statute is moneymandating only when a board corrects a record but fails to pay what becomes due the plaintiff, Def. Motion 16-17, is similarly misguided. As the Fisher Court stated, referring to another money-mandating statute, "The fact that the statute imposes requirements for the payment of money does not mean that only claimants who have been determined by a Government official to meet those

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requirements have a right to the money the statute provides. It is the statute, not the Government official, that provides for the payment. If the

Government official's determinations under the statute are in error, the Court is there to correct the matter, and to have the proper determinations made." 402 F.3d at 1175 (emphasis added). Defendant's reliance on Martinez v. United States, 33 F.3d 1295 (Fed. Cir. 2003), is also misplaced. The Martinez Court was called upon to deal with a statute of limitations issue, and the majority held that the statute of limitations applicable to a service member's Tucker Act claim was not suspended while the plaintiff pursued a remedy from a corrections board. The majority held that a

new cause of action separate from the Tucker Act claim did not accrue to plaintiff when the corrections board rendered its administrative decision on the matter. It is clear that the Martinez decision was focused on the statute of limitations issue, and is not controlling on the issue in the instant matter. In fact, the Martinez majority, criticizing the dissenters' analysis, stated that the dissent's theory "conflates the remedy granted by the correction board statute with the underlying cause of action". Id. at 1314. Seen from that perspective, the majority decision

in Martinez does not support the proposition that for all purposes §1552 is not money-mandating. In fact, the majority's acknowledgement that § 1552 grants a remedy supports the conclusion that it is a money-mandating statute. Where, as here, no statute of limitations issue with its attendant policy concerns is involved, Martinez is limited to its facts and does not control.

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Consequently, the Martinez dissent represents the better view of the "money-mandating" issue in this case. There the dissenters stated: Section 1552 . . . provides for the correction of military records and for payment of claims incident thereto. The statute authorizes the Secretary of a military department to correct any military record . . . "when the Secretary considers it necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a)(1). . . . Importantly, subsection (c) provides that the Secretary `may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits , or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant.' In other contexts we have held that a statute using the term "may" rather than "shall" is nevertheless "moneymandating." . . . . [T]he Secretary [of the Army] has adopted regulations . . . establishing the . . . Board . . . and the procedures governing the Board's activities. . . . [T]he Director, [DFAS], is responsible for settlement of monetary claims arising from activities of the Correction Board. . . .Read together, these provisions of statute and regulations leave little doubt that the decision of the Board has direct consequences regarding an applicant's monetary remedy. A favorable result before the Board mandates that the applicant be paid any monies due him; no discretion exists in the hands of the paymaster . . . . This clearly meets the test set out [in Testan] by the Supreme Court: "the asserted entitlement to money damages depends upon whether any federal statute [or regulation] `can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.'" (emphasis added; citations omitted).

Martinez, 33 F.3d 1295, 1323-1324 (Plager, J., dissenting; joined by Mayer, C.J., Newman, Gajarsa, Linn, and Dyk, JJ).

In this case, the Plaintiffs have alleged that they have suffered an injustice as a result of the Air Force's unexplained failure to provide them with correct information at the time they were required to make their retirement application, , and the continuing failure to provide them with the necessary information that

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would have helped them avoid the harm they incurred when they retired without a credible estimate of their retired pay. They availed themselves of procedures set out under 10 U.S.C. § 1552 and Department of Defense Instruction 1336.6, Correction of Military Records (1994), see Plaintiff's Appendix 66-69, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (1996), see Appendix to Def.'s Motion. As the Martinez majority and dissent noted, this statutory and regulatory scheme creates a monetary remedy. Plaintiffs argue that the Court should conclude that the provision of law here are money-mandating.

C. The Court has subject matter jurisdiction over this claim for compensation related to retirement under money-mandating statutes because the Plaintiffs' retirements, which were the result of misleading retirement counseling, cannot be presumed to be voluntary.

Defendant incorrectly argues that this Court lacks subject matter jurisdiction over Plaintiffs' claims because they voluntarily retired. Although the

Court of Federal Claims generally lacks subject matter jurisdiction over a military pay case where the plaintiff has voluntarily retired, and although there is a rebuttable presumption that a retirement is voluntary, Longhofer v. United States, 29 Fed.Cl. 595, 601 (1993), the Court may find that retirement is involuntary if it is the result of misrepresentation by government officials. Tippett v. United

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States, 185 F.3d 1250, 1255 (Fed. Cir. 1999). The determination is an objective one and is made by examining the totality of circumstances to determine whether the individual "truly had an option." Longhofer at 601. In Scharf v. Department of the Air Force, 710 F.2d 1572 (Fed. Cir. 1983), a civilian employment case5, the Federal Circuit Court found that even where an individual did not contend that he was forced to retire, the retirement could be found to be involuntary because he reasonably relied on a material--albeit unintentional--misstatement and inadequate counseling by persons who the petitioner alleged had a duty to provide retirement counseling. The Scharf Court summarized the pertinent conduct as follows:

The record clearly indicates that petitioner's failure to understand was due to the fact that he was misled as to the consequences of his optional retirement by the agency counselor . . . . The presiding official found that the petitioner could have reasonably concluded from [the counselor's] statement that he would be put back on the rolls and allowed to use his accumulated sick leave once his disability retirement was approved. We agree. We believe that this statement was highly misleading and materially affected the petitioner's decision regarding retirement. . . [I]t was reasonable for petitioner to rely on the advice of his retirement counselor, and he did in fact rely on this advice in good faith. 710 F.2d at 1575

As in Scharf,--and in contrast to the scenario in Longhofer, 29 Fed.Cl at 603, where the Court found no evidence of a material misstatement--the Plaintiffs
5

In Sammt v. United States, 780 F.2d 31 (Fed. Cir.1985), "the Federal Circuit recognized the applicability of the involuntariness analysis of civilian personnel separations . . . to military personnel separations." See Sammt, 780 F.2d 32." Lynn v. United States, 58 Fed.Cl. 797 (2003).

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have alleged that the retirement counseling they were given by Air Force personnel who had a mandatory duty to provide the counseling contained material misstatements on which they reasonably relied when making their early retirement decision. See, e.g., Cplt ¶¶ 7, 12, 19. Further, the administrative

record here contains ample evidence to support these allegations and to rebut any presumption of voluntariness. As the Federal Circuit Court stated in

Covington v. Department of Health and Human Services, 750 F.2d. 937 (Fed.Cir.1984), addressing a situation where the agency provided erroneous and misleading information that forced the employee to make the retirement decision with incomplete information: "[T]he law . . . requires that a choice . . must be understood by the employee and that such a decision be freely made. In this case, the agency was responsible for [the employee]'s lack of an informed choice. A decision made `with blinders on', based on misinformation . . . cannot be binding as a matter of fundamental fairness and due process...." Id. at 94243. The misinformation provided here to the Plaintiffs prevented them from making an informed choice as to whether to continue their military career. The Plaintiffs have justifiably described this decision as "life-changing", as acknowledged by the AFBCMR. AR1 at 7; AR2 at 6.

The defendant argues that the Plaintiffs could not have reasonably relied on the estimate of their retired pay because when they signed the retirement checklist the retired pay estimates that accompanied it contained a disclaimer and notification that they should contact DFAS-Cleveland for an official estimate 27

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of their retired pay, presumably based on the use of the Section 1405 date. Most tellingly, however, it does not appear that DFAS-Cleveland ever did in fact make this calculation until the retirement date was imminent or perhaps past. As the

record shows, Plaintiff Cort Ancman had not received his retirement orders at the time the Plaintiffs were scheduled to move to their belongings to a new home, and in the absence of retirement orders, which could not be issued without a Section 1405 date, an alternative document accomplish this. AR1 at 68; AR2 at 65. In the case where a service member is not retiring early, but is slated to retire for length of service after twenty years of service, regulations require the 1405 date to have been calculated at the 18-year mark. AR1 at 26; AR2 at 23. Presumably, the Air Force had a comparable duty to establish a 1405 date for TERA early retirees in a comparably expeditious manner. Finally, the Air Force evaluator who reported to the AFBCMR acknowledged that the failure to calculate the Plaintiff's retirement pay with the correct date was unexplained. AR1 at 26; AR2 at 23. The Plaintiffs have stated that they called DFAS-CL and could get no response from that office. It is clear that even if the Plaintiffs had gotten through to DFAS-CL, they would have gotten no better information than they got originally. Plaintiffs were not told why it was not possible to calculate the 1405 date and not possible to make sure that early retirees got retired pay estimates that were close to the claimed accuracy of the average retired pay estimate, i.e., "within a few dollars". Cplt. ¶ 7. The system simply failed in this had to be issued to help him

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instance, and it failed in a manner that was beyond the Plaintiffs' control, and in a manner that was totally within the control and responsibility of the Air Force. The retirement checklist avowal of receipt of an estimate, AR1 at 29; AR2 at 26, and the disclaimer language included in the Pentagon MPF pay estimate, AR1 at 16; AR2 at 15, were essentially meaningless. The Plaintiffs

were told contemporaneously by personnel at the Pentagon MPF that the estimate was accurate within a very few dollars. In this instance, Plaintiffs' evidence and Defendant's evidence essentially prove the same thing. Plaintiffs have declared that they were told the estimate was accurate within "one or two dollars". Defendant provided evidence that Air Force personnel said that

computer-generated estimates are accurate with "a few dollars." Plaintiffs strenuously argue that this evidence represents a distinction without a difference, and that--even accepting the Defendant's version of the facts--no reasonable person would contemplate the possibility that "a few dollars a month" could mean "a few hundred dollars a month". The Air Force assumed the responsibility for creating credible retired pay estimates, and the Plaintiffs' evidence of the oral statement made by the Pentagon MPF personnel cannot be ignored. It formed an essential part of the retirement counseling that Plaintiffs received. An "estimate" is meaningless if it is wildly at variance with the final figure, and if it varies wildly because the individuals charged with generating the estimate failed to follow the correct procedures by failing to generate and use the basis for computation.

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D. Defendant's motions to dismiss Plaintiffs' Tucker Act claim for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted should be denied.

Plaintiffs have adequately alleged and pleaded a claim under provisions of law that are money-mandating, and they have shown that their claim fits within the scope of the money-mandating source of law. Fisher, F.3d at 1175-76. 402

Defendant misconstrues the Plaintiffs' arguments when it

asserts that Plaintiffs claim that they are entitled to retirement pay that they do not deserve or to which they are not statutorily entitled. They have claimed that the Air Force's miscounseling and misstatements, departure from regular procedure, and breach of the duty to provide adequate retirement counseling, deprived them of the opportunity to make an informed choice. They were deprived of the ability to evaluate their options, including the option to eschew early retirement or to withdraw their retirement decision entirely. Once they had committed themselves to the early retirement choice, they were essentially at the mercy of the Air Force, because they never received (and, as it turns out, never could have received) a legitimate and credible estimate of their retirement pay. A combination of time pressure, the Air Force's monopoly on information, and the Air Force's failure to provide adequate information during the retirement counseling process, put them in a straitjacket-- "with blinders on"-- with regard to their retirement decision. It is this injustice, this deviation from fundamental

fairness, that they argue entitles them to the compensatory payments that the

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AFBCMR initially awarded them and that are contemplated by the statutory and regulatory provisions that govern military retirement pay. Defendant's motions should be denied.

II.

Plaintiffs are entitled to judgment on the administrative record. The Assistant Secretary's and decision deny to reject petition the was AFBCMR's arbitrary,

recommendation

Plaintiffs'

capricious, an abuse of discretion and unsupported by substantial evidence in the administrative record. Substantial evidence in the administrative record supports the Board's recommendation that the Plaintiffs be awarded compensation to cure an injustice.

The final authority regarding requested corrections to military records is not the Board--here the AFBCMR--but the Secretary. Strickland v. United

States, 423 F.3d 1335, 1342 (Fed. Cir. 2005). The standard of review the Court employs here where the Board recommended compensation and the Secretary disagreed is whether the Secretary's rejection of the Board's recommendation was arbitrary or capricious, unsupported by substantial evidence, or otherwise contrary to the law." Id. at 1343. This is the same standard the Court applies

where the Board rejects an applicant's petition. See, e.g., Sanders, 594 F.2d at 811.

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Although the Secretary, through the Assistant Secretary here, was not bound to accept the recommendations of the AFCBMR, the Assistant Secretary, nevertheless must state the basis for her denial in writing. AFI 36-2603. The decision here was arbitrary and capricious because she failed to consider relevant factors and disregarded the substantial evidence in the administrative record that supported the Board's recommendations. In particular, the Assistant Secretary here stated: "I note the assertion that they were told by the Pentagon MPF that though the pay estimator was not exact, it was within $1 - $2 of what they would be getting in retired pay and, therefore, there was no need to contact DFAS because they could not provide a better estimate without the 1405 date. However, I find no evidentiary support for this assertion from the Pentagon MPF. Absent corroborative evidence from the Pentagon MPF or an indication that the applicants were provided inaccurate estimates of their retired pay from DFAS, I find no compelling basis to provide them additional retirement benefits for periods of service in which they did not serve." AR1 at 10; AR2 at 9. Plaintiffs first reiterate their assertion that the last sentence reaffirms Plaintiffs' earlier contention that the Assistant Secretary was impliedly acknowledging that if she determined the evidence was sufficient to show misleading inaccurate information had been provided she would have approved the Board's recommendation. Beyond that, the Assistant Secretary in fact

ignored evidence in the record that did corroborate the Plaintiffs' statement. That is, the evidence that Air Force personnel, including those responsible for using the computer model to produce retired pay estimates, generally

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acknowledged and professed that the estimates were accurate within "a few" dollars is evidence that tends to prove the same things Plaintiffs' evidence proves--that the estimates were expected to be very close indeed to the final figure. The AFBCMR itself, in its decision, stated: "We believe the applicant was led to believe that there would be a small difference between the estimate and her actual retire pay and based on that belief, she made a life changing decision." AR1 at 7; AR2 at 6. Furthermore, the Assistant Secretary concludes that it is "inexcusable" that the Plaintiffs did not "seek official confirmation" of the estimates from DFAS. AR1 AT 10, AR2 9. The Plaintiffs of course have stated that they did contact

DFAS, to no avail. Beyond this and as has been pointed out earlier, there is no evidence in the record to support the Assistant Secretary's assumption that the Plaintiffs failed to do what they could to confirm the estimate. The record does not reveal when 1405 dates were in fact calculated. It is clear that Plaintiff Cort Ancman's 1405 date remained uncalculated at the time he was attempting to move to his post-retirement home. A substitute document was issued to him because there was no 1405 date calculated. AR1 at 68; AR2 at 65.

Finally, the Assistant Secretary admits that the Pentagon MPF provided Plaintiffs with "grossly inaccurate" estimates, but dismisses the impact of that factor because the Plaintiffs were given the "address of the proper source to obtain official estimates." AR1 at 9-10; AR2 at 8-9. Again, the Assistant

Secretary has concluded that official estimates were available from DFAS-CL, a factual conclusion unsupported by the administrative record. In fact, the record

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as a whole provides no support for the Secretary's assumption that an accurate official estimate was available. Included as part of the Board's decision, the Air Force Evaluation notes that Retirements Branch Personnel had not computed the 1405 date, even though it was responsible for doing so. AR1 AT at 5. "The Pentagon MPF could not provide the applicant with a correct estimate without the official 10 USC 1405 date. . .For reasons they cannot explain, both MPFs [Pentagon and Nellis] substituted the applicant's pay date for the 10 USC 1405 date. . . . There is no evidence to support the Assistant Secretary's conclusion that the Plaintiffs had a source of "official" or accurate information that could cure the errors made during the retirement counseling process. The pattern of

performance established by the administrative record, where misinformation was inexplicably given and the duty to produce and provide accurate information was breached, is one of irregularity and laxity. If there is a presumption of regularity or presumption that these public officials discharged their duties, correctly, lawfully, and in good faith, Hoffman v. United States, 894 F.2d 30 (Fed. Cir 1990), that bubble has been burst where the evidence of on the administrative record shows that the Air Force here failed to provide the Plaintiffs with the accurate information that was indispensable if they were to make an informed choice about retirement. The Assistant Secretary's decision is reviewable by this Court, despite Defendant's caveat. Def. Motion, 18, 21 and n. 9. Defendant argues that the Assistant Secretary's approval of payment to the Plaintiffs would violate the

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Appropriations Clause of the U. S. Constitution, according to the principles set out in OPM v. Richmond, 496 U.S. 414 (1990), and the Anti-Deficiency Act, 31 U.S.C. § 1341(a)(1)(B). Plaintiffs do however point to authority for payment to them of the compensation the Board recommended. First, as Justice Stevens stated in Richmond, " [E]ven . . . in . . . cases [that] are the product of a mistaken interpretation of a statute or regulation . . .[t]he Constitution contemplates appropriations that cover programs--not individual appropriations for individual payments." 496 U.S. 414, 435 (1990). By analogy, the general appropriations for military retired pay cover the program that determines the retired pay for Air Force officers. As noted above, in instances where the Board has granted

exceptions to policy, the Board in effect waives established criteria and triggers payment under terms that may vary from statutory and regulatory criteria. Furthermore, 10 U.S.C. § 1552 provides statutory authority for payment of this and any lawful compensation granted by a corrections board: "The Secretary concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if as a result of correcting a record under this section, the a