In the United States Court of Federal Claims

No. 22-1222 

(Filed: 4 April 2023) 

NOT FOR PUBLICATION

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JIM GARCIA, * 

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Plaintiff, * 

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v. * 

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THE UNITED STATES, * 

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Defendant. * 

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ORDER

HOLTE, Judge.

On 6 September 2022, pro se plaintiff Jim Garcia filed a complaint alleging military pay 

claims, specifically requesting an increase in his Combat Related Special Compensation, ECF 

No. 1. On 9 January 2023, the government filed a motion for a scheduling order on 

cross-motions for judgment on the administrative record (“cross-MJARs”), ECF No. 11. On 31 

January 2023, the Court referred plaintiff for possible pro bono representation and stayed the 

case for 60 days (“Pro Bono Referral Order”), ECF No. 14. On 20 March 2023, plaintiff filed a 

response to the Pro Bono Referral Order, notifying the Court the pro bono referral was 

unsuccessful and plaintiff wished to proceed pro se, ECF No. 15. The next day, plaintiff filed a 

motion for summary judgment (“MSJ”), ECF No. 16. Plaintiff argues decisions by the Army 

Board for Correction of Military Records (“Board”) were arbitrary and capricious for failing to 

properly consider evidence before the Board regarding plaintiff’s disability rating from Veterans 

Affairs. See generally id.

On 28 March 2023, the government filed a renewed motion for a scheduling order on 

cross-MJARs, asserting military pay cases are decided on the administrative record, so an MJAR 

rather than an MSJ is the correct procedural posture, ECF No. 17. On 29 March 2023, plaintiff 

filed a response to the government’s renewed Motion for Scheduling Order (“Pl.’s Resp.”), ECF 

No. 18. Plaintiff requests the Court rule on his MSJ before requiring him to take a position on 

the government’s renewed Motion for Scheduling Order, arguing he may file an MSJ pursuant to 

Rule 56 of the Rules of the Court of Federal Claims (“RCFC”) regardless of the military pay 

nature of the case. Id. at 1–2. On 31 March 2023, the government filed a reply in support of its 
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renewed Motion for Scheduling Order, maintaining an administrative record must be filed and 

clarifying it does not seek remand to the agency, ECF No. 19.1

“Military pay cases involving decisions of a military correction board and a service 

member’s subsequent entitlement to appropriate monetary compensation under the U.S. Code are 

reviewed on the administrative record under the same standard as any other agency action.” 

Sharpe v. United States, 134 Fed. Cl. 805, 813–14 (2017) (finding judgment on the 

administrative record rather than summary judgment the appropriate procedure), aff’d, 935 F.3d 

1352 (Fed. Cir. 2019) (citing Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006); Martinez 

v. United States, 333 F.3d 1295, 1314–15 (Fed. Cir. 2003)). The Federal Circuit held in Walls, 

“it has become well established that judicial review of decisions of military correction boards is 

conducted under the [Administrative Procedure Act (‘APA’)] . . . [and therefore] generally 

limited to the administrative record.” Walls v. United States, 582 F.3d 1358, 1367 (Fed. Cir. 

2009) (footnote omitted). “[R]eview of a military corrections board is limited to the 

administrative record[.]” Id. at 1368. The APA requires a reviewing court to “hold unlawful and 

set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse 

of discretion, or otherwise not in accordance with law[.]” 5 U.S.C. § 706(2)(A). Plaintiff states 

in his response to the government’s renewed Motion for Scheduling Order: “The underlying 

agency . . . has given [its] final decision on the matter before the Court[,] and [its] final decision 

is beyond Arbitrary, Capricious and Contrary to the law . . . .” Pl.’s Resp. at 2. The Court 

understands plaintiff requests APA review of agency action, see id. at 2–3 (describing the 

decision of the Army Board for Correction of Military Records as arbitrary and capricious and 

quoting provisions of the APA), so the Court must require the government to file an 

administrative record to review the record before the agency. See Sharpe, 134 Fed. Cl. at 

813–14; Walls, 582 F.3d at 1367–68. 

The Court therefore FINDS as MOOT the government’s initial Motion for Scheduling 

Order, ECF No. 11, STAYS plaintiff’s Motion for Summary Judgment, ECF No. 16, and 

GRANTS the government’s renewed Motion for Scheduling Order, ECF No. 17. After the 

government files the administrative record, plaintiff may convert his MSJ to an MJAR or refile 

his Motion with citations to the administrative record. Further, the Court ADOPTS the 

following briefing scheduling, adding seven days to each deadline in the government’s proposed 

schedule to account for the days since the filing of the government’s renewed Motion for 

Scheduling Order: 

1 On 31 March 2023, Mr. Garcia attempted to file a deficient additional brief on this motion, maintaining the 

government’s cited cases do not require the filing of an administrative record. The Rules of the Court of Federal 

Claims contain no provision for filing a surreply on a motion for a scheduling order, so Mr. Garcia should have filed 

a motion for leave to file his additional brief. The Court, however, DIRECTS the Clerk to file Mr. Garcia’s 

additional brief received 31 March 2023 as a surreply by leave of court. The Court considers Mr. Garcia’s 

arguments in his Surreply in this Order.
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Event Deadline

The government files the administrative 

record

17 April 2023

Plaintiff files an MJAR with citations to the 

administrative record or converts his MSJ to 

an MJAR

19 May 2023

The government files a cross-MJAR and 

response to plaintiff’s MJAR

20 June 2023

Plaintiff files a reply in support of his MJAR 

and response to the government’s 

cross-MJAR

14 July 2023

IT IS SO ORDERED.

 s/ Ryan T. Holte 

 RYAN T. HOLTE 

 Judge