# In the United States Court of Federal Claims

No. 2 2

- 1673 (Filed: April 25, 2023 )

NOT FOR PUBLICATION

**************************************

GEORGE D

. PRE W ITT, JR.

, *

* Plaintiff, *

*

v. *

* THE UNITED STATES, *

*

Defendant. *

************************************** RCFC 52.2; Motion for Remand;

Motion for P reliminary Injunction; Motion for Summary Judgm ent;
Motion for RCFC 26 Disclo sures; Disability Re ti r ement ; Substantial and Legitimate ; Prejudice

.

George D. Prewitt, Jr. , Greenville, MS, proceeding pro se

.

Kristin E. Olson , U.S. Department of Justice, Civil Division, Washington, DC, counsel for

Defendant. Holly Bryant , Military Personnel Litigation Branch, U.S. Army Legal Services Agency.

MEMORANDUM OPINION AND ORDER

DIETZ, Judge.

Pro se plaintiff, George D unbar Prewit t, a former member of the United States Army (“Army”), brings suit challeng ing a decision by the Army Board for Correction of Military Records (“ABCMR”) denying him a disability retirement. After filing his complaint, Mr. Prewitt

filed a series of m otions , including two motions for a preliminary injunction, a motion for summary judgment, and a motion for disclosures pursuant to Rule 26 of the Rules of the Court of

Federal Claims (“RCFC”)

. In addition to filing responses to Mr. Prewitt’s various motio ns, t he
government also filed a motion to establish a schedule and a motion for a voluntary remand, both of which Mr. Prewitt opposes.

Because the government has provided substantial and legitimate reasons for a remand and a remand will not unduly preju dice Mr. Prewitt, the government’s motion to remand is

GRANTED

- IN

- PART and DENIED

- IN PART . T he government’s motion to establish a

schedule is DENIED AS MOOT . Furthermore, Mr. Prewitt’s motions for preliminary injunction

are DENIED because such motions requ ire that the Court rule on the merits of his claim and do not maintain the status quo

. Mr. Prewitt’s motion for summary judgment is DENIED because the proper vehicle for resolving a challenge to a military records correction board decision is a motion for judgment on the administrative record

. Mr. Prewitt’s motion for disclosures pursuant

to RCFC 26 is DENIED AS MOOT because the government served Mr. Prewitt a copy of the

administrative record

.2

I. BACKGROUND

The Army drafted Mr. Prewitt into ser vice on March 12, 1968

, for the Vietnam War

. Compl. [ECF 1] ¶ 1. On February 22, 1969 , Mr. Prewitt suffered a gunshot wound to his neck. Shortly there after, on July 2, 1969, the Army issued Mr. Prewitt a DA Form 3349, which

restricted his activities. Id. ¶ 2. On September 22, 1969, Mr. Prewitt underwent an orthopedic physical evaluation to assess his fitness for retention. Id. ¶ 5. The evaluation stated that Mr. Prewitt could “elevate [his] left ar m to 90 degrees but with some pain” and that he “is qualified for retention with permanent profile but would have an ENT or plastic surgery consultation for further evaluation of painful neck injury residuals. ” Ex. to Compl. [ECF 1

- 1] at 3. 1 Shortly after this evaluation, Mr. Prewitt underwent neck surgery. [ECF 1] ¶ 6. Mr. Prewitt was relieved from

active

- duty service on March 11, 1970 and moved to the Army Reserves. Id. ¶¶ 4, 8(B), 12. In a n evaluation by the Department of Veteran Affairs on June 17, 1970, it was noted that Mr. Prewitt could not move his arm beyond 60 to 75 degrees

, and Mr. Prewitt was assigned a disability rating of 30 percent. Id. ¶ 12; [ECF 1

- 1] at 11

- 12.

In 2022, the ABCMR considered whet her , at the time of his separation, Mr. Prewitt

should have been retired or discharged due to his disability

. See [ECF 1] ¶ 8. T he ABCMR asked the Army Review Board Agency (“ARBA”) medical advisor to review Mr. Prewitt’s case. 2 Id. ¶ 8(C). The ARBA medical advisor found that Mr. Prewitt should have been referred to the

D isability E valuation S ystem (“DES”). Id

. T he ABCMR then determined that Mr. Prewitt was entitled to partial relief and referred his claim to the Office of the Surgeon General “to determine if [Mr. Prewitt] should have been retired or discharged by reason of physical evaluation disability through the [DES].” Id. ¶ 8(A). The Office of Surgeon General requested the opinion of Dr. Robert B. Coutant of the Fort Benning Medi cal Evaluation Board. Id. ¶ 8(B). After reviewing Mr. Prewitt’s records, Dr. Coutant determined that Mr. Prewitt “did not required referral to the DES[.]” Id. The ABCMR adopted Dr. Coutant’s position and held that Mr. Prewitt “did not require disability pr ocessing at the time of separation.” Id . ¶ 8(A).

On November 9, 2022, Mr. Prewitt filed his complaint challenging the ABCMR decision and Dr. Coutant’s findings as arbitrary, capricious, an abuse of discretion, and contrary to law.

See [ECF 1] ¶ 22. Mr. P rewitt also seeks repayment of a $50 fine he was assessed as a punishment during his service. See id . Concurrent with his complaint, Mr. Prewitt filed a motion for a preliminary injunction. [ECF 2]. On December 1, 2022, Mr. Prewitt filed a second motion

pr eliminary injunction. [ECF 11]. A few days later, on December 12, 2022, Mr. Prewitt filed a motion for summary judgment, [ECF 12], however, the Court stayed the government’s response to Mr. Prewitt’s motion for summary judgment, [ECF 10]. Prior to the gove rnment’s deadline to file an answer to Mr. Prewitt’s complaint, on January 6, 2023, the government filed a motion to

establish a schedule

, [ECF 14] , which Mr. Prewitt opposed

, [ECF 15]. In its reply in support of its motion to establish schedule, the government moved to remand Mr. Prewitt’s case to the

1 All page numbers in the parties’ filings refer to the page number s generated by the CM/ECF system

2 Mr. Prewitt appears to have mistakenly referred to this medical advisor as an ABCMR evaluator in his complaint

. In later filings both Mr. Prewitt and the government refer to this advisor as working for the ARBA. See Pl’.s 2d Mot. for Prelim. Inj. [ECF 11] at 4; Def.’s Reply in Supp. of Mot. to Establish Sch. & Mot. to Remand [ECF 18] at 2.3

ABCMR to reconsider Mr. Prewitt’s claims . [ECF 18]. All motions are full y briefed

, and the Court has determined that a hearing is not needed.

II. MOTION TO REMAND

The government moves to remand Mr. Prewitt’s case to the ABCMR for reconsideration because “[t]he ABCMR did not afford Mr. Prewitt an opportunity to submit any arguments or evidence in response to Dr. Coutant’s opinion or the Office of the Surgeon General’s memorandum.” [ECF 18] at 3

- 4. Although the government does not concede error, it states that “the ABCMR intends to reconsider Mr. Prewitt’s claims, including any supplemental matters

Mr. Prewitt would like to raise in li ght of Dr. Coutant’s opinion.” Id. at 5. Furthermore, the
government asserts that the administrative record in this case is incomplete because the ABCMR has not considered any rebuttal to Dr. Coutant’s opinion. Id

.

This Court has the authority “to remand appropriate matters to any administrative or executive body or official with such direction as it may deem proper and just.” 28 U.S.C. § 1491(a)(2). An agency may request a remand, without conceding error, to reconsi der its previous position with respect to a governing statute or procedures that were followed. SKF USA Inc

. v. United States , 254 F.3d 1022,1029 (Fed. Cir. 2001). When an agency makes such a remand request, the court has discretion on whether to grant the remand request. Id . In exercising such discretion, the court considers whether the agency’s concern is “substantial and legitimate.” Id . If the court determines that the agency’s concern is “substantial and legitimate,” a remand is usually appropriate. Id . However, if the court determines that the agency’s remand request is frivolous or in bad faith, the court may deny the request. Id . The Court may also deny a remand request if the remand would serve no useful purpose or would unduly prejudice the non

- mov ing
party. Martinez v. United States , 333 F.3d 1295, 1310 (Fed. Cir. 2003); Rahman v. United States

, 149 Fed. Cl. 685, 689 (2020). When an agency requests a remand without conceding error, the agency must express some intent to reconsider, re

- review, or mo dify the original agency decision that is the subject of the legal challenge. Keltner v. United States , 148 Fed. Cl. 552, 563 (2020). “[R]emand is not appropriate in all circumstances and the Court should only grant such a motion

after serious consideratio n.” Trace Sys., Inc. v. United States , No. 22

- 404, 2022 WL 2963486, at *2 (Fed. Cl. July 26, 2022).

The Court finds that the government ’ s reasons for seeking a remand of Mr. Prewitt’s case are substantial and legitimate. While not conceding error, the government states that a remand will provide Mr. Prewitt with an opportunity to respond to Dr. Coutant’s opinion s and the Office of the Surgeon General’s memorandum and to submit additional evidence for consideration by

the ABCMR. [ECF 18] at 3. The govern ment also states that the ABCMR intends to reconsider
Mr. Prewitt’s claim s

. Id

. These are valid reasons for a remand. See SKF USA Inc. , 254 F.3d at 1029; Rahman , 149 Fed. Cl. at 691 (stating that allowing the agency an opportunity to review its decision and correct a potential error is “preferred over judicial intervention, which is most appropriate when an agency refuses to correct a substantive or procedural er ror”). An agency’s

desire to reconsider its decision to ensure that th e proper procedures were followed in reaching that decision is usually appropriate grounds for a remand. See SFK USA Inc.

, 254 F.3d at 1029; Lyon v. United States , 161 Fed. Cl. 88, 93 ( 2022). The remand request also does not appear

frivolous or in bad faith. The government is requesting a remand to allow the ABCMR to4

reconsider its decision s based on new rebuttal arguments and evidence from Mr. Prewitt, not to supplement the rationale fo r its prior decision. The remand will also allow Mr. Prewitt to raise any new claims, including his claim relating to the $50 fine assessed by the Army in 1969. See [ECF 1] ¶ 14; [ECF 18] 6 n.3 (“To ensure that the corrections board addresses all of Mr.

Prewitt’s claims , we reiterate that Mr. Prewitt may submit whatever claims he wishes to pursue to [the] ABCMR for consideration[.]”). Affording Mr. Prewitt with an opportunity to assert new rebuttal arguments, submit new evidence, and make additional claim s for consideration by the

ABCMR will also further develop the record , which will assist the Court if further proceedings

are necessary post remand

.

In his opposition to the government’s motion for remand, Mr. Prewitt argues that he is
“entitled to disabi lity retirement pay at this instant.” Pl.’s Resp. to Mot. to Remand [ECF 20] at 20. Additionally, in his sur

- reply he cites to being prejudiced by a remand because of his advanced age. See Pl.’s Sur

- Reply to Mot. To Remand [ECF 27 ] at 7. The Court is not p ersuaded

that Mr. Prewitt will be unduly prejudiced by a remand . Mr. Prewitt may receive all the relief he

seeks during remand, thus avoiding the need for further judicial proceedings. See 10 U.S.C. §

1552. If the ABCMR determines that relief is warranted, it will be able to simultaneously correct

his military records and coordinate with the appropriate agencies to provide the requisite monetary relief. See Wolfing v. United States , No. 18

- 523, 2022 WL 17409572, at *15 ( Fed. Cl. Dec. 2, 2022). Th erefore , a remand could lead to a more expeditious resolution of this case

. Additionally

, in order to address Mr. Prewitt’s argument that he is entitle d to immediate relief

, this Court would need to rule on merits of his claim, an d such a decision would be premature
without a complete administrative record for the Court to review

. See Walls v. United States , 582 F.3d 1358, 1368 (Fed. Cir. 2009) (stating that “review of military corrections board[s] is limited

to the administrative record.” ). 3

The Court is, however, cognizant of the need to avoid unnecessary delay, and the Court does not agree with the government’s requested remand period of six months. Under RCFC 52.2

, six months is the maximum length of time the Court can grant for a remand pe riod. See RCFC 52.2(b)(1)(B). T he length of a remand period depends on the circumstances in each case, including the extent of prior proceedings, whether records ha ve been previously compiled, and the narrowness of the scope of the issues on remand. See Ho lmes v. United States , 142 Fed. Cl. 791, 794 (2019).

In this case, the ABCMR should be able to complete its work in less than six months

. Mr. Prewitt has already been before the ABCMR

, and the government has already compiled the

administrative record

. S ee Notice [ECF 27]

. The r emand is intended to allow Mr. Prewitt to

submit his rebuttal arguments and additional evidence challenging Dr. Coutant’s opinion and to enable the ABCMR to reconsider its prior decision. Also, it will allow Mr. Prewitt to submit any

3 In his sur

- reply, Mr. Prewitt challenges the constitutionality of the ABCMR under the Appointments Clause of the

United States Constitution. See [ECF 27] at 2. The Cou rt will not consider this argument. A party “may not raise new arguments in a reply brief.” ClinComp Int’l, Inc. v. United States , 135 Fed. Cl. 477, 482 (2017). Mr. Prewitt has not previously challenged the constitutionality of the ABCMR’s decision and can not do so for the first time in a sur

reply. Additionally, this Court may only hear constitutional challenges when the Constitution “expressly creates a substantive right enforceable against the federal government for money damages.” LeBlanc v. United Stat es , 50 F.3d 1025, 1028 (Fed. Cir. 1995) (citing United States v. Testan , 424 U.S. 392, 398 (1976)). The Appointments Clause of the Constitution does not create such a right.5

new arguments that he may have to ensure that the remand produces a comprehensive record

. Under these circumstances and given the limited nature of the issues on remand , a remand period of 120 days should be sufficient for the ABCMR to complete its work

.

III. OTHER PENDING MOTIONS

Mr. Prewitt filed two separate motions seeking a preliminary injunction. In his first motion, Mr. Prewitt lists the pertinent facts of his case and request s that t he Court “order a prompt response by the [D]efendant.” See [ECF 2] at 2

- 3. In his second motion, Mr. Prewitt argues the merits of his case and asserts that the ABCMR violated various statutes and regulations in reaching its decision. See [ECF 11] at 1

- 14. Mr. Prewitt then requests that the

Court order the ABCMR to comply with th e statutes and regulations he cites in his motion and that “[Mr. Prewitt] be regarded as if [he] has been on active duty since March 11, 1970 , and that [Mr. Prewitt] receive appropriate compensation.” Id. at 16. A preliminary injunction is not

warranted in this case. The purpose of a preliminary injunction is to “preserve[s] the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. United States , 451 U.S. 390, 395 (1981). I n his motions

, Mr. Prewitt seeks to obtain rel ief before the Court may

address the merits of his case, not to maintain the status quo of the parties during th e pendency of

th is litigation. See Litton Sys., Inc. v. Sundstrand Corp. , 750 F.2d 952, 961 (Fed. Cir. 1984) (“The function of preliminary injunctive relief is to preserve the status quo pending a determination of the action on the merits.”). Accordingly, Mr. Prewitt ’ s motions for preliminary injunction are denied.

Mr. Prewi tt also filed a motion for summary judgment

. [ECF 12]. However, summary judgement is not appropriate in this instance. W hen reviewing the decision of a military board in the context of a disability retirement claim

, “the court's role, as in other record ca ses, is limited to determining whether the agency's final action was ‘ arbitrary or capricious, unsupported by substantial evidence, or otherwise not in accordance with law.’” Grooms v. United States

, 113 Fed. Cl. 651, 660 (2013) ( quoting Fisher v. United States

, 402 F.3d 1167, 1180 (Fed. Cir. 2005)).

The c ourt conducts this review based upon the administrative record. See Walls , 582 F.3d at 1368 (stating that “review of military corrections board[s] is limited to the administrative record.”); Bailey v. United States

, 145 Fed. Cl. 453, 460 (2019). Therefore, s ummary judgment procedurally inappropriate in this case because the “summary judgement standards are not pertinent to judicial review upon an administrative record.” RCFC 52.1 Rules Committee Note (2006 Adoption); see also Hwang v. United States

, 94 Fed. Cl. 259, 268 n.4 (2010). 4 Accordingly, Mr. Prewitt’s motion for summ ary judgment is denied

.

Finally, Mr. Prewitt filed a motion for d isclosures pursuant to RCFC 26 requesting that

the Court order the government to provide him his record s , “particularly [his] Official Military Personnel File[.]” [ECF 21] at 1. After Mr. Prewitt filed this motion, t he government filed a

4 Mr. Prewitt asserts that the government failed to respond to Mr. Prewitt’s moti on for summary judgment and “is in default for failing to file an answer[.]” [ECF 15] at 3

- 4. The government was not required to file a response to Mr. Prewitt’s motion for summary judgment because the Court explicitly stayed the government’s response. See Dec. 13, 2022 Order [ECF 10]. The government was also not required to file an answer to Mr. Prewitt’s complaint

. Prior to the deadline for filing an answer, t he government filed a motion to establish a schedule providing that the government intended to fi le a motion for judgment on the administrative record (“MJAR”)

. S ee [ECF 14] at 2

. U nder the Court’s rules, an MJAR obviates the requirement for the filing of an answer

. S ee RCFC 52.1(c)(3).6

notice stating that it has “now provided Mr. Prewitt: (1) records in the Army’s possession concerning Mr. Prewitt’s reques t for records correction from the [ABCMR], and (2) a copy of his Official Military Personnel File. ” See [ECF 25]. Because the government has provided Mr. Prewitt with a copy of the administrative record, Mr. Prewitt’s motion for RCFC 26 disclosures

is denie d as moot.

IV. CONCLUSION

For the reasons above, th e government’s motion to remand is GRANTED

- IN

- PART

AND DENIED

- IN

- PART . Th is case SHALL BE REMANDED to the ABCMR

. Pursuant to RCFC 52.2, the Court provides the following remand instructions :

1. The remand period SHALL TERMINATE on August 22 , 2023 , and proceedings

in this case are STAYED until that date. If the ABCMR fails to issue its decision by the termination of the remand period, the parties shall file motions with the Court pursuant to RCFC 52.2(c).

2. T he ABCMR SHALL RECONSIDER the merits of the claims asserted by Mr.

Prewitt in this case , along with the opinion of Dr. Coutant that was adopted by the

Office of the Surgeon General and any further evidence or argument that Mr. Prewitt may submit during remand in accordance with ABCMR procedures, and any further evidence that the ABCMR may wish to obtain to further develop the

factual record in this matter

.

3. Mr. Prewitt MAY FILE any new or supplemental arguments or evidence in support of his claim for military disability retirement with the ABCMR , including any additional medical records, on or before June 2 3 , 2023

.

4. The government SHALL FILE a status report every 6 0 days

, starting from the date of this order until the ABCMR issues a decision. The status report shall advise the Court of the status of the remand proceedings.

5. The ABCMR is DIRECTED to promptly forward its decision to Mr. Prewi tt and to counsel of record for the United States, an d to forward two copies to the Clerk of Court pursuant to RCFC 52.2(d).

6. Each party SHALL FILE a notice pursuant to RCFC 52.2(e) within 45 days of

the ABCMR decision indicating their respective position s on whether the ABCMR’s decision affords a satisfactory basis for disposition of the case or whether further proceedings before the court are required and, if so, the nature of such proceedings.

The Clerk is DIRECTED to serve a certified copy of this Memorandum Opinion and Order on

the ABCMR at: Office of Army Review Boards Agency

, 251 18th Street South, Suite 385

, Arlington

, VA 22202

- 3531.7

Additionally, Mr. Prewitt’s m otions for p reliminary i njunction [ECFs 2, 11] are DENIED

, his m otion fo r s ummary j udgment [ECF 12] is DENIED , and his m otion for RCFC

26 d isclosures [ECF 21] is DENIED AS MOOT

. The government’s motion to establish a

schedule [ECF 14] is DENIED AS MOOT

.

IT IS SO ORDERED.

s/ Thompson M. Dietz THOMPSON M. DIETZ, Judge