In the United States Court of Federal Claims

No. 18-923C

Filed: July 6, 2021

TONIA TIPPINS, et al.,

Plaintiffs,

v.

THE UNITED STATES,

Defendant.

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.

MEMORANDUM OPINION AND ORDER

TAPP, Judge.

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 it 

1 This case was originally assigned to Senior Judge Loren Smith. (ECF No. 2). On December 3, 

2019, this case was transferred to the undersigned. (ECF No. 33). 
2

is 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. 

I. Background2

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 of

2 The Court has ordered resolution via summary judgment rather than judgment on the 

administrative record—the normal means for resolving military pay cases. (Order, ECF No. 22). 

After detailing the facts relevant to this dispute, the Court will explain why this case proceeds on 

the path less traveled. Despite the exceptional posture, the United States has filed an 

Administrative Record containing numerous relevant documents. (AR, ECF No. 58). Although 

the Court is not conducting a trial on the Administrative Record under RCFC 56.1, the parties 

stipulated that no material factual issues preclude summary judgment. (Tr. of Oral Arg. at 13–14, 

26:13–15, ECF No. 74).

3 To their Motion for Summary Judgment, Plaintiffs have attached as an exhibit the 

Administrative Record from Lippmann v. United States, 127 Fed. Cl. 238 (2016) (Case No. 15-

192, ECF No. 11-1). To avoid confusion between that record and the one the United States has 

filed in this case, the Court will cite to the PDF pagination as it appears in the Court’s blue 

CM/ECF Bates Stamp in the header of Pls.’ MSJ Ex. 7. For example, when referring to the 

Lippmann AR, the Court would cite to the cover page, which simply reads “EXHIBIT 7,” as 

“(Pls.’ MSJ Ex. 7 at p. 1).”
3

service 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”). (Pls.’ Mot. Ex. 7 at pp. 8–9; see 

also AR 27 (“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.”)). 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 (“Body to billet we are doing fine, but upward mobility and flow 

continues to be a problem and will pose bigger problems down the road.”)).

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:

4 Subsection (j) of § 357 was repealed in 2016. Coast Guard Authorization Act of 2015, Pub. L. 

No. 114-120, § 215, 130 Stat 27, 45–46 (2016).
4

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 multiyear 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 involuntary 
5

retirement. (Pls.’ Mot. Ex. 8 at 7–8). From 2009 to the end of 2015, the Coast Guard reduced its 

total number of authorized enlisted billets from 33,550 to 31,990, with each year logging a 

decline from the previous year. (Pls.’ Mot. Ex. 12 at 7–10).

In July 2018, three plaintiffs brought this action on behalf of themselves and a class of 

service members retired using the 2012–2014 CRSPs. (Compl., ECF No. 1). Several months 

later, Plaintiffs filed an Amended Complaint, adding three additional service members. (Am. 

Compl. at 1). Plaintiffs never sought to certify a class under RCFC 23. 

In July 2019, the Court determined that this action should proceed on motions for 

summary judgment under RCFC 56 rather than motions for judgment on the Administrative 

Record under RCFC 52.1(b). (Order, ECF No. 22); supra n.1. The Court reasoned that because 

Plaintiffs were “challenging the legality of the CRSPs for the first time, and neither the Coast 

Guard nor a military corrections board has considered this issue, there is no appropriate 

administrative record for the Court to review” and thus de novo review is the appropriate 

standard. (Id. (citing Lippmann, 127 Fed. Cl. 238)).5 Thereafter, the Court permitted limited 

discovery regarding the Coast Guard’s interpretation of “reduction in force” in the context of 14 

U.S.C. § 357(j). (Disc. Opinion at 6–7, ECF No. 52). 

That limited discovery period now being closed, the parties submit the case on crossmotions for summary judgment. The United States attached an appendix to its Cross-Motion,

(Def.’s Appendix (“DA”), ECF No. 67-1), which contains a “Declaration of Captain Christopher 

P. Calhoun” who served as Chief in the Office of Military Personnel and authored several of the 

messaging emails described above. (DA 61–63). Plaintiffs, in their Reply and Opposition, move 

to strike this document. (Pls.’ Reply at 14, ECF No. 69). The Court will address those issues in 

turn. 

II. Analysis

The parties present the Court with a “Chevron” issue. In Chevron, U.S.A., Inc. v. Nat. 

Res. Def. Council, Inc., 467 U.S. 837 (1984), the Supreme Court held that when a court reviews

an agency’s construction of a statute the agency administers, the court must answer two 

questions. First, the reviewing court must determine whether Congress has spoken to the precise 

question at issue—that is, whether the statute is ambiguous or unambiguous. Id. at 843. If 

Congress has clearly spoken—i.e., the court determines that the statute is unambiguous—the 

Court must give effect to Congress’s plain words expressing its intent. Id. If Congress has not 

clearly spoken—i.e., the Court finds that the statute is ambiguous—the Court looks to the 

agency’s interpretation and asks whether that interpretation is reasonable. Id. If the agency’s 

interpretation is reasonable, the Court must afford the deference to the agency’s construction. Id. 

5 Although the United States believes this case should have proceeded to judgment on the 

Administrative Record rather than summary judgment, because there are no disputed issues of 

material fact, the United States now acknowledges it no longer matters. (Tr. of Oral Arg. at 29–

31). 
6

at 844. But if the agency has not offered an administrative interpretation of the statute, then the 

Court must “impose its own construction on the statute[.]” Chevron, 467 U.S. at 843.

Here, the Court concludes that § 357(j) is unambiguous: a “reduction in force” is the 

elimination of positions or jobs, not merely the separation of personnel. The Court’s conclusion 

differs from the interpretation the Coast Guard offers in its briefs. But the Court owes no 

deference to that interpretation because it is merely the Coast Guard’s convenient litigating 

position, not based on any meaningful agency interpretive process. Therefore, even if the Court 

were to determine that § 357(j) was ambiguous, then the Court would be required to “impose its 

own construction on the statute[.]” That construction would lead the Court to the same 

conclusion: the Coast Guard’s involuntary retirement of Plaintiffs through CRSPs was not part of 

a “reduction in force” under § 357(j) and thus was contrary to law. 

The parties agree that there are no genuinely disputed issues of material fact. (Tr. of Oral 

Arg. at 26:13–15). And statutory interpretation is purely a matter of law. Deutsche Bank AG v. 

United States, 742 F.3d 1378, 1381 (Fed. Cir. 2014). Therefore, under RCFC 56 and for the 

reasons that follow, Plaintiffs are entitled to summary judgment as a matter of law. Celotex Corp. 

v. Catrett, 477 U.S. 317 (1986). 

A. 14 U.S.C. § 357(j) is unambiguous.

As an initial matter, it is helpful to orient Subsection (j) and the phrase at issue within the 

context of the entire statute. Title 14 Section 357 of the U.S. Code governed the involuntary 

retirement of Coast Guard members until its repeal in 2016. Supra n.4. Section 357(a) provided 

that “Enlisted Personnel Boards shall be convened as the Commandant may prescribe to review 

the records of enlisted members who have twenty or more years of active military service.” 

Subsection (b) prescribed two instances where an Enlisted Personnel Board could review enlisted 

members and recommend their involuntary retirement to the Commandant: (1) the 

servicemember’s performance was unsatisfactory; or (2) professional dereliction. § 357(b). 

Subsections (c)–(h) described the procedure for that review process, the makeup of the review 

Board, procedure for appeal, timing of separation, and entitlement to retired pay. Subsection (i) 

described the retired pay increase owed upon separation to enlisted members cited for 

extraordinary heroism in the line of duty. Finally, Subsection (j) announced an exception to the 

statute’s otherwise detailed procedures for involuntary retirements: “[w]hen the Secretary orders 

a reduction in force, enlisted personnel may be involuntarily separated from the service without 

the Board’s action.” § 357(j). 

There is no dispute that the CRSPs were not Enlisted Personnel Boards formed under 14 

U.S.C. § 357(a)–(g). (Def.’s Mot. at 2). Therefore, Plaintiffs’ involuntary retirements through the 

CRSPs were only lawful if they were part of a “reduction in force” ordered by the Secretary of 

Homeland Security under § 357(j). This case turns on the meaning of those three words. 

The United States argues that Congress intended to assign “reduction in force” a 

“flexible” definition depending on the circumstances in which § 357(j) was invoked, and the 

phrase can therefore be read to mean “a reduction in personnel, a reduction in positions, or both.” 

(Def.’s Mot. at 12). Plaintiffs counter that “reduction in force” has a clear meaning: “a reduction 

in the size of the force—that is, the elimination of positions or jobs—not termination of 
7

individual members or employees.” (Pls.’ Reply at 5). The Court agrees with Plaintiffs and holds

that a “reduction in force” is the elimination of positions or jobs, not merely the separation of 

personnel.

“In determining the meaning of a statutory provision, [courts must] look first to its 

language, giving the words used their ordinary meaning.” Artis v. D.C., __ U.S. __, 138 S. Ct. 

594, 603 (2018) (internal quotations omitted). “[W]hen Congress uses the same language in two 

statutes having similar purposes, . . . it is appropriate to presume that Congress intended that text 

to have the same meaning in both statutes.” Romag Fasteners, Inc. v. Fossil, Inc., 866 F.3d 1330, 

1335 (Fed. Cir. 2017) (quoting Smith v. City of Jackson, 544 U.S. 228, 233 (2005) (internal 

quotation marks omitted)). Although interpretation of the “reduction in force” clause in § 357(j) 

is an issue of first impression, the Federal Circuit has defined “reduction in force” in other 

circumstances. In the context of civil service employees, “[a reduction in force] is an 

administrative procedure by which agencies eliminate jobs and reassign or separate employees 

who occupied the abolished positions.” James v. Von Zemenszky, 284 F.3d 1310, 1314 (Fed. Cir. 

2002) (emphasis added). “A RIF is not an adverse action against a particular employee, but is 

directed solely at a position within an agency.” Id. (emphasis added); see also Huber v. Merit 

Sys. Prot. Bd., 793 F.2d 284, 286 (Fed. Cir. 1986). The Federal Circuit has made clear that a 

“reduction in force” necessarily involves the elimination of positions as a prerequisite. Gandola 

v. F.T.C., 773 F.2d 308, 310 (Fed. Cir. 1985) (“A reduction in force involves two steps. First, the 

agency determines which positions to abolish. Second, it selects the people to be eliminated 

serving in those positions on the basis of their retention standing.”). And while the elimination of 

positions indubitably might involve the separation of personnel who occupy those eliminated 

positions, the agency cannot target specific personnel and then decide to eliminate their positions

under the guise of a reduction in force. Id. at 312. (“A reduction in force may not be used as a 

disguised adverse action to remove or demote a particular employee.”); Huber, 793 F.2d at 286 

(“A RIF is an administrative procedure by which agencies eliminate jobs and account for 

employees who occupied abolished positions.”).

Other Courts have interpreted “reduction in force,” albeit in the context of statutes 

governing civilian workforce protections. In Barnes v. GenCorp Inc., 896 F.2d 1457 (6th Cir. 

1990), the court considered an age discrimination case brought under the Age Discrimination in 

Employment Act. There, the court interpreted “reduction in force” to mean the “elimin[ation] of 

one or more positions[,]” not a situation where the employee “is replaced after his or her 

discharge.” Id. at 1465. Critically, the Barnes court clarified that “a person is not replaced when 

another employee is assigned to perform the plaintiff’s duties in addition to other duties, or when 

the work is redistributed among other existing employees already performing related work.” Id.

Therefore, a reduction in force can occur where the employer eliminates positions and 

redistributes responsibilities to remaining employees without replacing the eliminated personnel. 

Id. (“A person is replaced only when another employee is hired or reassigned to perform the 

plaintiff’s duties.”); see also Sanders v. Kohler Co., 641 F.3d 290, 294 (8th Cir. 2011) (“When a 

company fires one worker and replaces him with another, there is no net loss in the number of 

employees and no ‘reduction in force’ as the term is commonly understood.”). 

In support of its position that Congress intended to assign a flexible definition to the 

phrase “reduction in force,” the United States cites Cross v. Dep’t of Transp., 127 F.3d 1443 

(Fed. Cir. 1997), Nat’l Fed’n of Fed. Emps., Loc. 1442 v. Dep’t of the Army, 810 F.3d 1272 (Fed. 
8

Cir. 2015) (“NFFE, Local 1442”) and Welch v. Dep’t of Army, 323 F.3d 1042 (Fed. Cir. 2003). 

However, those cases do not support the broad definition the United States urges the Court to 

adopt. 

In Cross, the Federal Circuit examined employment actions surrounding Congress’ 

dissolution of the Interstate Commerce Commission (“ICC”). Cross, 127 F.3d at 1445. The ICC 

was abolished by an act of Congress in 1996 and many of its functions were absorbed by its 

successor agency, the Surface Transportation Board (“STB”), as well as the Federal Highway 

Administration within the Department of Transportation. Id. In the summer of 1995, while 

Congress was debating legislation to abolish the ICC, officials within that agency began 

discussing which functions and positions would be transferred to the STB and the Federal 

Highway Administration. Id. Later the same year, the ICC began to notify employees that the 

agency would conduct a reduction in force, during which employees “identified as holding 

positions within the identified functions” would be transferred out of the ICC and into the 

appropriate agency (STB or the Federal Highway Administration) while those without a 

surviving function would be separated. Id. at 1446. Even before the RIF was announced, it was 

obvious that all positions within the ICC were to be eliminated, but the Cross plaintiffs 

challenged the RIF on the grounds that, until the law abolishing the ICC was enacted, there was 

no “lack of funding” that justified the RIF. Id. However, the Federal Circuit disagreed, holding 

that a RIF conducted pursuant to an anticipated shortage of funding was lawful. Cross, 127 F.3d 

at 1447. Cross is largely inapplicable to this case, but in recognizing an agency’s discretion to 

conduct a RIF, the Circuit cited Grier v. Department of Health and Human Servs., 750 F.2d 944, 

945–46 (Fed. Cir. 1984). Significantly, the Cross court summarized its understanding of Grier’s 

holding in a parenthetical: “a RIF is not aimed at removing particular individuals, but is directed 

solely at positions.” Cross, 127 F.3d at 1447 (emphasis added). The Circuit’s interpretation of its 

own case law, focusing on positions rather than individuals, supports Plaintiffs’ reading of 14 

U.S.C. § 357(j) and contradicts the definition offered by the United States.

The United States cites NFFE, Local 1442 for the proposition that “a reduction in force 

may involve a reduction in personnel without a reduction in positions, if, for example, an agency 

furloughs personnel, or, as in this case, the military needs to ensure the proper functioning of the 

workforce by reducing personnel without reducing positions[.]” (Def.’s Mot. at 13 (citing NFFE, 

Local 1442, 810 F.3d 1272)). However, NFFE, Local 1442 does not support that proposition and 

did not involve or interpret a statutory “reduction in force.” In NFFE, Local 1442, the plaintiff, a 

federal workers union comprised of civilian employees at the Letterkenny Army Depot, appealed 

the workers’ six-day furloughs. NFFE, Local 1442, 810 F.3d at 1273. “The furloughs were the 

result of an automatic process of federal agency spending reductions known as ‘sequestration.’”

Id. The furloughs were conducted pursuant to Title 5, chapter 75 of the U.S. Code, which 

pertains to the organization of the Federal Government and its employees. 5 U.S.C. § 7501 et 

seq.; see also NFFE, Local 1442, 810 F.3.d at 1277 (discussing various provisions of that title 

applicable to adverse actions against unionized employees). The unionized workers challenged 

the adverse action against them under § 7512, which specifically “does not apply to . . . a 

reduction-in-force action[.]” 5 U.S.C. § 7512. NFFE, Local 1442 simply has no application to 

this case. 

In Welch, the plaintiff, an Army Corps of Engineers employee, appealed his involuntary 

separation from the Corps through a single-position RIF. Welch, 323 F.3d at 1044. John Welch, 
9

the plaintiff, was one of five Information Management Officers within the Corps district area. Id.

One of those positions was GS-14, while the rest (including Welch’s) were GS-13. Id. After 

conducting a “consistency review,” the Corps recommended that Welch report to the Deputy 

Commander, rather than to a Special Assistant. Id. After his realignment, the Corps adopted a 

new position description for the district’s GS-14 Information Management Officer and 

announced a vacancy for which Welch applied and was not selected. Welch, 323 F.3d at 1044. 

Afterward, the Corps conducted a RIF and eliminated his GS-13 position, then reassigned Welch 

to a GS-12 position with a different title. Id. Welch appealed to the Merit Systems Protections 

Board and his claim was denied. Id. The Circuit upheld that denial, observing that “[a]lthough a 

reduction-in-force frequently involves a reduction in the number of employees, it need not do so. 

If a position is eliminated for a proper managerial reason, that will justify a reduction-in-force.” 

Id. at 1046 (emphasis added). Importantly, in Welch, the agency eliminated positions as part of 

the reduction in force. 

As the Plaintiffs point out, Welch does not support the United States’ flexible reading of 

“reduction in force” because the holding in Welch relied on the agency’s elimination of 

positions. Here, the vacated positions were not eliminated, but rather opened to promote junior

servicemembers. As the United States admitted, “[w]hen the Secretary of Homeland Security 

ordered reductions in force in [2010–2014], . . . the Secretary did not separately and specifically 

order the elimination of particular billets (or positions) in the Coast Guard.” (Pls.’ Mot. Ex. 12 

(Interrogatory Responses) at 11). And Plaintiffs’ positions (or “billets”) were not eliminated after 

Plaintiffs were involuntarily retired. (Def.’s Admissions, Pls.’ Mot. Ex. 8 at 7–8). As the Sixth 

Circuit articulated in Barnes, “[a]n employee is not eliminated as part of a work force reduction 

when he or she is replaced after his or her discharge.” Barnes, 896 F.2d at 1465. 

Moreover, the Coast Guard’s public messaging campaign around the CRSPs sharply 

undercuts the United States’ argument that the involuntary retirements were actually a reduction 

in force. Under orders from the Assistant Commandant for Human Resources (Rear Admiral 

Neptun), Captain Calhoun—the Chief of Military Personnel—made clear that he understood the 

CRSPs were “not a RIF and [the Coast Guard] need[ed] to ensure that [the CRSPs were] not 

associated with a RIF.” (Tr. of Oral Arg. at 39:6–23; Pls.’ Mot. Ex. 9).6 This messaging 

campaign reflected the reality that if the Coast Guard described the CRSPs as part of a RIF, it 

would have been misleading “because the CRSP was not intended to reduce the overall size of 

the force.” (Pls.’ Mot. Ex. 11). The Coast Guard has since admitted that it never informed its 

members that it considered the CRSPs to be part of a reduction in force. (Def.’s Admissions at 

6–7).

Finally, the United States argues that review of Coast Guard personnel actions is beyond 

the Court’s purview. (Def.’s Mot. at 13–14) (arguing that “Congress did not establish any ‘test or 

standard’ that would constrain the Secretary’s exercise of military discretion[,]” thus the Court 

6 On January 28, 2021, Captain Calhoun signed an affidavit declaring that his email exchanges 

included as Plaintiffs’ Exhibits 9–11 & 14 reflected a “communications strategy,” that he did not 

have legal or policymaking authority. (DA 61–63). That is the context in which the Court places 

Captain Calhoun’s contemporaneous emails, and his current statements prepared for the purposes 

of this litigation do not contradict his previous statements. 
10

must abstain from judicial review). The United States appears to base this argument on the 

“necessary and appropriate” clause of the Coast Guard’s authorizing statute: “For the purpose of 

executing the duties and functions of the Coast Guard the Secretary may within the limits of 

appropriations . . . do any and all things necessary to carry out the purposes of this title.” 

14 U.S.C. § 501(h). 

This argument lacks merit. First, “[t]he very function of the courts is to apply statutes and 

necessarily to interpret and explain them.” Texas State Com’n for the Blind v. United States, 796 

F.2d 400, 417 (Fed. Cir. 1986). Second, “a ‘necessary or appropriate’ provision in an agency’s 

authorizing statute does not necessarily empower the agency to pursue rulemaking that is not 

otherwise authorized.” New York Stock Exch. LLC v. Sec. & Exch. Comm’n, 962 F.3d 541, 556 

(D.C. Cir. 2020); see also Michigan v. E.P.A., 576 U.S. 743, 752 (2015) (explaining that an

“appropriate and necessary” clause is not a blank check for agency action). 

The United States also cites Murphy v. United States, 993 F.2d 871, 873 (Fed. Cir. 1993)

(“We have emphasized that judicial review is only appropriate where the Secretary’s discretion 

is limited, and Congress has established ‘tests and standards’ against which the court can 

measure his conduct.”) and Allphin v. United States, 758 F.3d 1336, 1341 (Fed. Cir. 2014). 

(Def.’s Mot. at 13–14). That quote from Murphy lacks context and refers to whether courts 

should reweigh the evidence presented to a military corrections board. It does not impose a limit 

on this Court’s role as arbiter and interpreter of federal statutes. Marbury v. Madison, 1 Cranch 

137, 177, 5 U.S. 137, 177 (1803) (“It is emphatically the province and duty of [the courts] to say 

what the law is.”); see also Martin v. Creasy, 360 U.S. 219, 228 (1959) (Douglas, J. dissenting) 

(Federal courts have a “responsibility in cases properly before them under heads of jurisdiction 

prescribed by Congress to construe federal statutes and the Federal Constitution.”); 28 U.S.C. § 

1491 (The United States Court of Federal Claims shall have jurisdiction to render judgment upon 

any claim against the United States founded . . . upon . . . any Act of Congress . . ..”). 

Likewise, Allphin does not support the United States’ argument. Allphin involved a 

similar factual scenario, where Navy servicemembers were separated using Enlisted Retention 

Boards. 758 F.3d 1336. However, those Boards were constituted by the Secretary of the Navy 

under 10 U.S.C. § 1169. Allphin, 758 F.3d at 1340–41. That statute is much simpler and broader 

than the one at issue in this case. That section provides:

No regular enlisted member of an armed force may be discharged before his 

term of service expires, except--

(1) as prescribed by the Secretary concerned;

(2) by sentence of a general or special court martial; or

(3) as otherwise provided by law.

10 U.S.C § 1169. The Navy used this statute to separate approximately 3,000 sailors from 

positions that were “overmanned” due to “record high retention in the [2011] economic 

environment.” Allphin, 758 F.3d 1340. Positions that were not overmanned were published, and 

sailors were permitted to apply “as a contingency in case they were selected to be discharged.” 

Id. The Federal Circuit held that the Enlisted Retention Boards were properly constituted under 
11

§ 1169, and merits review of the separations was a nonjusticiable personnel decision committed 

to the discretion of the Navy. Id. at 1341–43. Those holdings do not apply to this case, and 

Allphin did not grapple with 14 U.S.C. § 357 nor did it mention a “reduction in force.” 

Therefore, Allphin is inapplicable and does not support the United States’ urged construction of 

§ 357(j). 

It is the Court’s role to interpret § 357, if possible, using the plain language of the statute.

As stated above, a “reduction in force” involves the elimination of positions or jobs and not 

merely the separation of personnel. Those words in § 357(j) are plain and unambiguous, and the 

Court assigns a definition that has been embraced by numerous federal appellate courts. In 

making this determination, the Court offers no opinion regarding the Coast Guard’s policy 

objectives in shaping its force. That is a matter fittingly within the expertise of the Commandant 

and the Secretary.

B. Even if the Court were to find that 14 U.S.C. § 357(j) is ambiguous, the Coast Guard 

has not offered an interpretation of the statute that is entitled to Chevron deference.

As explained above, the phrase “reduction in force” is unambiguous and the Court 

affords those words their plain and ordinary meaning—the same meaning ascribed to them by 

the Federal Circuit and other U.S. Courts of Appeals. However, in finding § 357(j) unambiguous, 

the Court has sidestepped what is known as “Chevron step-zero”—that is, whether the Court 

would even need to conduct the full two-step Chevron analysis or whether the Court should 

proceed directly to an interpretation of the statute. 

Plaintiffs argue that the Coast Guard described the CRSPs as a “reduction in force” only 

when the legality of the involuntary retirements was challenged. (Pls.’ Mot. at 16–17). Plaintiffs

continue that Congress did not authorize the Secretary to define “reduction in force,” but even if 

Congress did, the Secretary never attempted to interpret that phrase in a manner that warrants 

Chevron deference. (Pls.’ Reply at 2–3). The United States argues that Congress did authorize 

the Secretary to define “reduction in force” and the Secretary did so through the CRSP 

authorization memoranda, which warrant Chevron deference. (Def.’s Reply at 2–7, ECF No. 70). 

The Court agrees with the Plaintiffs on two fronts: (1) the Secretary did not interpret “reduction 

in force” using the tools that would afford that interpretation Chevron deference; and (2) the 

United States’ litigating position is not entitled to Chevron deference. 

In Chevron, the Supreme Court acknowledged that, upon judicial review, courts might 

find the record devoid of the agency’s administrative interpretation of the statute at issue. 

Chevron, 467 U.S. at 843 (“If, however, the court determines Congress has not directly 

addressed the precise question at issue, the court does not simply impose its own construction on 

the statute, as would be necessary in the absence of an administrative interpretation.”) (emphasis 

added). In United States v. Mead Corp., the Supreme Court fleshed out that acknowledgment, 

holding that:

[A]dministrative implementation of a particular statutory provision qualifies 

for Chevron deference when it appears that Congress delegated authority to 

the agency generally to make rules carrying the force of law, and that the 
12

agency interpretation claiming deference was promulgated in the exercise of 

that authority.

Mead, 533 U.S. 218, 226–27 (2001). “Delegation of such authority may be shown in a variety of 

ways,” the Supreme Court explained, such “as by an agency’s power to engage in adjudication or 

notice-and-comment rulemaking, or by some other indication of a comparable congressional 

intent.” Id. at 227. Thus, Mead provided a “safe-harbor” of Chevron deference for agency 

interpretations conducted through formal rulemaking or adjudication, as well as informal noticeand-comment rulemaking. Id. 

But sometimes informal agency actions are entitled to Chevron deference. Id. at 219 

(“[A]gencies charged with applying a statute necessarily make all sorts of interpretive choices, 

and while not all of those choices bind judges to follow them, they may influence courts facing 

questions the agencies have already answered.”). The Mead court, quoting Skidmore v. Swift & 

Co., 323 U.S. 134, 140 (1944), clarified that instances in which courts should defer to informal 

agency action are context specific. Mead, 533 U.S. at 219 (“The weight of such a judgment in a 

particular case will depend upon the thoroughness evident in [the agency’s] consideration, the 

validity of its reasoning, its consistency with earlier and later pronouncements, and all those 

factors which give it power to persuade, if lacking power to control.”) (internal quotations 

omitted). Thus, the instances in which courts should defer to less-formal interpretative acts 

remain murky. See Barnhart v. Walton, 535 U.S. 212, 222 (2002) (“[W]hether a court should 

give such deference depends in significant part upon the interpretive method used and the nature 

of the question at issue.”). 

The Supreme Court has recently expounded on and limited the various doctrines of 

agency deference. In Kisor v. Wilkie,

7 the court explained that lower courts “must make an 

independent inquiry into whether the character and context of the agency interpretation entitles it 

to controlling weight.” Kisor, __ U.S. __, 139 S. Ct. 2400, 2416 (2019). The court clarified that,

to receive deference, the “interpretation must be one actually made by the agency. In other 

words, it must be the agency’s ‘authoritative’ or ‘official position,’ rather than any more ad hoc

statement not reflecting the agency’s views.” Id. at 2416. Elaborating, the court recognized that 

“the requirement of ‘authoritative’ action must recognize a reality of bureaucratic life: Not 

everything the agency does comes from, or is even in the name of, the Secretary or his chief 

advisers.” Id. at 2416. As an example, the court pointed to “‘official staff memoranda’ that were 

‘published in the Federal Register,’ even though never approved by the agency head” as the type 

of document that should receive deference. Id. (quoting Ford Motor Credit Co. v. Milhollin, 444 

U.S. 555 (1980)). However, the Court did not demarcate boundaries of administrative 

interpretation, but merely offered a minimum standard: “[t]he interpretation must at the least 

emanate from those actors, using those vehicles, understood to make authoritative policy in the 

relevant context. . . . If the interpretation does not do so, a court may not defer.” Id. at 2416–17, 

7 In Kisor, the Supreme Court examined whether the character and context of an agency’s 

interpretation of its own regulations entitles that interpretation to controlling weight whereas 

here, the agency interprets a statute. However, the Court made clear that the Chevron step-zero 

analysis involved an “analogous though not identical inquiry[.]” Kisor, 139 S. Ct. at 2416.
13

2421 (“Remember that a court may defer to only an agency’s authoritative and considered 

judgments.”). 

Here, there is no evidence of a “considered judgment” by the Coast Guard, and the 

character of the memoranda establishing the CRSPs is conclusory, not interpretative. When 

prodded for evidence of interpretive agency analysis, the United States pointed only to the 

memoranda from the Commandant to the Secretary authorizing the CRSPs:

The Court: What sentence can you point to—I mean, I think we’re supposed 

to be . . . somewhat vigilant about looking for an analysis of agencies and not 

just agencies saying, well, this is what it is. What sentence in that paragraph 

provides an analysis?

[The United States]: Your Honor, it is relatively conclusory, I’ll grant you 

that. But there is an interpretation that under 357(j) –

The Court: I’ve got that one highlighted myself. So “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.” 

That’s a restatement of the statute, right?

[The United States]: Well, it’s—it comes in conjunction with the sentence 

that came two sentences before it that says the legal authority to conduct the

CRSP panel derives from 357(j).

The Court: So is that an analysis? That’s just a conclusion. . . . 

[The United States]: Well, it’s an interpretation.

(Tr. of Oral Arg. at 41–42). The United States has not provided the Court with any document 

other than the CRSP memoranda that purports to interpret the statute.

Despite the United States’ urgings, the Coast Guard memoranda are not an interpretation. 

In Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) the Supreme Court explains that 

an agency does not receive deference by merely offering conclusory statements. There, the 

Supreme Court examined whether to apply Chevron deference to the Department of Labor’s 

(“DOL”) interpretation of the term “salesman” as it appeared in the Fair Labor Standards Act

(“FLSA”). From 1970 to 2011, the DOL reversed course twice on whether “service advisors” 

qualified as “salesmen,” and attempted to amend its definition accordingly. Id. at 2121–24. But 

when DOL’s 2011 rule was challenged, the Supreme Court found the interpretative explanation 

lacking: “the [DOL] said almost nothing. It stated only that it would not treat service advisors as 

exempt [from the FLSA] because ‘the statute does not include such positions and the Department 

recognizes that there are circumstances under which the requirements for the exemption would 

not be met.’” Id. at 2127. Recognizing that an agency could justify its policy choices by 

explaining how that policy is consistent with the statute, the Supreme Court noted that the DOL 

“did not analyze or explain why the statute should be interpreted” consistently with its policy 

choices. Id. In fact, the DOL “gave almost no reasons at all.” Id. Therefore, the Court declined to 
14

afford deference to the 2011 regulation in interpreting the FLSA, holding that “the [agency’s] 

conclusory statements [did] not suffice to explain its decision.” Id. 

Here, like the agency in Encino Motorcars, the Coast Guard has not explained how 

§ 357(j) should be interpreted to permit the policy it seeks to implement. The memoranda 

authorizing the CRSPs are scant, merely restating the language of the statute. The 2010 

memorandum even fails to do that. (Pls.’ Mot. Ex. 7 at pp. 8–9; see also AR 27). Each 

memorandum, which the Coast Guard issued annually, is approximately a page-and-a-half long 

and contains no legal analysis. (AR 27, 53, 86, 128). The memoranda cite the statute but provide 

no meaningful interpretative analysis of “reduction in force,” how it has been previously 

understood by the Coast Guard or other agencies, how the phrases are used in other statutes, or 

how the phrase has been interpreted by federal courts and other adjudicative bodies in other 

contexts. The Administrative Record lacks any indicia of considered interpretive analysis from 

the Coast Guard, much less the Department of Homeland Security. Like the DOL in Encino 

Motorcars, the Coast Guard offered no explanation at all as to how involuntary separations using 

CRSPs were a reduction in force permitted under § 357(j). The Commandant’s conclusory 

statements are insufficient to warrant deference. 

The United States argues that the military’s statutory interpretations are always afforded 

Chevron deference. (Def.’s Reply at 4–5 (citing Favreau v. United States, 317 F.3d 1346 (Fed. 

Cir. 2002) (per curiam) and Small v. United States, 158 F.3d 576 (Fed. Cir. 1998), amended on 

reh’g in part, 180 F.3d 1343 (Fed. Cir. 1999)). Favreau confirms that Congress has given the 

military “explicit authority to adopt interpretive regulations[.]” Favreau, 317 F.3d at 1358. That 

truism is not at issue here. In Favreau, the court examined “whether only those who request 

separation voluntarily come to the end of their enlistment” for the purposes of a bonus 

recoupment provision. Id. (emphasis added). The court was presented with a litany of record 

evidence interpreting the relevant statute, including military regulations, directives and official 

orders, memoranda relating to bonus recoupment, the agency’s financial regulations, and 

examples of actual agency practice, “all knit together by the affidavit of [a Colonel].” Id. The 

court explicitly stated that it was relying on the entire package to discern the agency’s 

interpretation of the statute. Id. (“It is only by considering this package that one could discern the 

relevant unifying interpretation[.]”). Favreau provides useful background for how the military 

might lawfully interpret a statute, but it does not support the United States’ position here where 

the Coast Guard did not analyze the statute. 

Seeking further support for its automatic deference argument, the United States cites 

Small v. United States, 158 F.3d 576 (Fed. Cir. 1998), amended on reh’g in part, 180 F.3d 1343 

(Fed. Cir. 1999). Small was decided by the Federal Circuit more than two years before the 

Supreme Court issued its decision in Mead, and contains no discussion of the Chevron step-zero 

issues Mead highlighted. Furthermore, Small does not analyze the question presented in this 

case—that is, whether the Coast Guard offered an interpretation of the statute at issue. 

The United States catalogs several cases from the Court of Federal Claims, which it 

believes support its automatic deference argument. (Def.’s Reply at 5). However, the cases cited 

do not involve Chevron step-zero analysis, and/or the military’s interpretative process is far more 

extensive than the Coast Guard’s conclusory memoranda in this case. Martin v. United States, 

133 Fed. Cl. 248 (2017) (Chevron deference warranted where term at issue was explicitly 
15

defined by three Department of Defense documents); Towne v. United States, 106 Fed. Cl. 704 

(2012) (the term at issue was explicitly defined by statute and by internal DoD memorandum; 

Chevron deference awarded); Miller v. United States, 58 Fed. Cl. 540 (2003) (finding the statute 

was unambiguous and supported the United States’ interpretation, but even if ambiguous, 

Chevron deference was warranted where DoD issued a memorandum explaining DoD’s 

construction of the statute). In any event, these cases do not bind this Court. W. Coast Gen. Corp. 

v. Dalton, 39 F.3d 312, 315 (Fed. Cir. 1994) (“Court of Federal Claims decisions, while 

persuasive, do not set binding precedent for separate and distinct cases in that court.”). 

Here, the Court is left with only the Commandant’s short, conclusory memoranda 

authorizing the CRSPs. Because the Commandant’s memoranda are devoid of any analysis 

suggesting they represent the Coast Guard’s “authoritative and considered judgments,” the Court 

does not owe those memoranda Chevron deference. Christopher v. SmithKline Beecham Corp., 

567 U.S. 142, 155 (2012) (listing situations in which deference is unwarranted, including “when 

there is reason to suspect that the agency’s interpretation does not reflect the agency’s fair and 

considered judgment on the matter in question . . . when the agency’s interpretation conflicts 

with a prior interpretation, . . . or when it appears that the interpretation is nothing more than a 

convenient litigating position . . . or a post hoc rationalization advanced by an agency seeking to 

defend past agency action against attack[.]”) (cleaned up) (emphasis added). Likewise, the Court 

does not owe deference to the definition of “reduction in force” that the United States advances 

for the first time in its briefs, as that definition appears to be merely a convenient litigation

position. 

Therefore, even if § 357(j) were ambiguous, the Court would be required to “impose its 

own construction on the statute” because the Coast Guard failed to offer an interpretation that 

warrants deference. Chevron, 467 U.S. at 843. The Court completed that task in Section II(A) 

above, determining that “reduction in force” means the elimination of positions or jobs, not 

merely separation of personnel. That analysis is supported by substantial case law and need not 

be repeated. 

C. Plaintiffs’ Motion to Strike is denied.

Finally, as noted above (supra n.6), the United States attached an affidavit of a Coast

Guard official to its Motion for Summary Judgment. (DA 61–63). In that affidavit, Captain 

Calhoun addressed emails discussing the CRSPs that were included in the Administrative Record 

and Plaintiffs’ Exhibits. Plaintiffs now move to strike Capt. Calhoun’s declaration. (Pls.’ Reply 

at 15). Capt. Calhoun’s past and present statements merely indicate that the Coast Guard’s 

current legal strategy differs from its then-offered communication strategy. The Court does not 

rely on the truth of either Capt. Calhoun’s past or present statements for its own legal analysis in 

this Opinion. In any event, the Court’s decision on the merits renders the issue moot. Therefore, 

Plaintiffs’ Motion to Strike is denied. 

III. Conclusion

The phrase “reduction in force” within 14 U.S.C. § 357(j) is unambiguous. A reduction in 

force involves the elimination of positions or jobs, not merely separation of personnel. But even 

if that phrase were ambiguous, the Court would define it as stated, and would not be required to 
16 

defer to any Coast Guard definition as the Coast Guard did not interpret the statute in a manner 

that would entitle its interpretation to Chevron deference. Finally, the Court need not address 

whether to strike Captain Calhoun’s affidavit because that issue is mooted by a decision on the 

merits that does not rely on Capt. Calhoun for its legal analysis. 

In summary: 

(1) Plaintiffs’ Motion for Summary Judgment (ECF No. 62), is GRANTED. The 

clerk is directed to enter judgment accordingly. 

(2) Plaintiffs’ Motion to Strike is DENIED AS MOOT. 

(3) The United States’ Cross-Motion for Summary Judgment (ECF No. 67), is 

DENIED. 

(4) On or before July 20, 2021, the parties shall file a joint status report proposing 

appropriate next steps consistent with this Opinion, including remedies, and a 

schedule for post-judgment proceedings should they be necessary. 

IT IS SO ORDERED. 

s/ David A. Tapp 

 DAVID A. TAPP, Judge