In the United States Court of Federal Claims
                                          No. 18-923C
                                     Filed: August 10, 2020


 TONIA TIPPINS, et al.,

                    Plaintiffs,                          Keywords: Involuntary
                                                         Retirement; Career Retention
 v.                                                      Screening Panel; Discovery;
                                                         RCFC 30(b)(6); Motion to
 THE UNITED STATES,                                      Compel

                    Defendant.


Nathan S. Mammen, Ragan Naresh, and Emily M. Kustina, Kirkland & Ellis LLP, Washington,
D.C., for the plaintiff.
Dlisa M. Sanchez, Trial Attorney, Commercial Litigation Branch, with whom were Martin F.
Hockey, Jr., Deputy Director, Robert E. Kirschman, Jr., Director, Civil Division, Ethan P.
Davis, Acting Assistant Attorney General, U.S. Department of Justice, Washington, D.C., and
LCDR Jesse L. Houck, U.S. Coast Guard, Of Counsel, for the defendant.
                                   OPINION AND ORDER
Tapp, Judge.
        Plaintiffs Tonia Tippins, Derrik Magnuson, George Holloway, Jennifer Rehberg, Glenda
Smithleeth, and M. Allen Bumgardner (collectively “Plaintiffs”) brought this action to challenge
the legality of their involuntary retirement from the United States Coast Guard. On March 16,
2020, the Plaintiffs filed a Motion to Compel the United States, through the Coast Guard, to
produce a designee for a RCFC 30(b)(6) Deposition. (Mot. to Comp., ECF No. 39). On May 18,
2020, the United States responded and moved for a protective order relieving it of any obligation
to provide a representative to testify about the twelve topics contained in Plaintiffs’ RCFC
30(b)(6) deposition notice. (Def.’s Resp. and Mot. for Prot. Order (“Def.’s Resp.”), ECF No. 46).
Plaintiffs filed their Reply on June 15, 2020. (Pls.’ Reply, ECF No. 50). These competing
motions now stand submitted.
      For the following reasons, the United States’ Motion for a Protective Order is DENIED.
The Court DEFERS resolution of Plaintiffs’ Motion to Compel pending further discussions
between the parties.
                                      I.   Background
       The ultimate resolution of this case turns on whether the Coast Guard acted contrary to
law when it involuntarily retired numerous Coast Guard members from 2010 to 2014 through
Career Retention Screening Panels (“CRSPs”). The United States maintains that the retirements
were part of a lawful “reduction in force” under 14 U.S.C. § 357(j). There have been no
proceedings before an administrative board to determine the lawfulness of these retirements.
This Court has previously determined this case should be briefed for summary judgment on the
legality of Plaintiffs’ retirement via CRSPs in lieu of Enlisted Personnel Boards. (Order, ECF
No. 22 (J. Smith)). 1
        To that end, Plaintiffs seek to depose a representative from the Coast Guard regarding
several topics outlined in a July 11, 2019 request for production of documents. (Mot. to Comp.,
Ex. 1). Plaintiffs served a formal RCFC 30(b)(6) notice on the United States on November 27,
2019, which outlined twelve topics of examination. (Mot. to Comp., Exs. 4, 5). On February 7,
2020, the United States responded to that notice stating it would oppose further discovery in this
case. (Mot. to Comp., Ex. 6). Plaintiffs now ask the Court to compel the Coast Guard to produce
a representative for live deposition testimony, and the United States seeks a protective order
relieving it from any obligation to do so.
                                    II.      Legal Standard
        RCFC 26(b)(1) governs the scope of permissible discovery, constraining parties to
“discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense
and proportional to the needs of the case.” Whether discovery is proportional to the needs of the
case requires considerations of “the importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.”

a party may notice deposition to a government agency, which then
must designate an appropriate representative to testify on its behalf. The notice “must describe
with reasonable particularity the matters for examination” before the agency is required to
designate a representative to be examined. RCFC 30(b)(6); see also Alexander v. F.B.I., 

(D.D.C. 1998). Once this burden is satisfied, the government agency then “has an
affirmative duty to make available persons who will be able to give complete, knowledgeable
and binding answers on its behalf.” Dairyland Power Co-op. v. United States, 

,
714 (2007) (internal quotations omitted). The representative is obligated to be prepared to testify
“about information known or reasonably available to the organization.” RCFC 30(b)(6); see also
AG-Innovations, Inc. v. United States, 

, 80 (2008).
                                          III.   Analysis
       The parties’ motions place two issues before the Court. First, the parties disagree as to
whether discovery is available in this case. Second, assuming for the sake of argument that
discovery is permitted, the parties disagree over the proper scope of that discovery.
       A. Availability of Discovery in This Case.
        Plaintiffs argue that they are entitled to discovery because they elected to bring this
military pay action before this Court in the first instance, rather than first seeking review from
the Coast Guard Board for Correction of Military Records. (Mot. to Comp. at 6). Plaintiffs urge


1
 The Court reserved a decision on the appropriate standard of review for consideration in
concert with the parties’ cross-motions for summary judgment. (ECF No. 22 at 2).


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that limited discovery was contemplated by this Court’s July 2, 2019, Order. (Pls.’ Reply at 7
(citing ECF No. 22)). The United States argues that discovery outside the administrative record
is categorically prohibited because this is a military pay case, which must proceed only on the
administrative record. (Def.’s Resp. at 1 (“[P]laintiffs’ strategic decision to bypass review of
their claims by a Coast Guard correction board does not entitle them to discovery in this
Court.”), 12 (“Pursuing de novo review of their claims in this court, however, does not entitle
plaintiffs to discovery.”)).
               i. The Court’s July 2, 2019 Order Does Not Rule on the
                  Availability of Discovery in This Case.
        On June 27, 2019, the Court heard oral argument on whether this case should proceed on
motions for summary judgment or motions for judgment on the administrative record. (See ECF
No. 22 at 2 (holding the case should proceed on motions for summary judgment)). During oral
argument, discussion ensued regarding whether Plaintiffs would be entitled to discovery.
Ultimately the Court entered an order allowing Plaintiffs to file a motion to compel to address
that issue. (Id.). Despite vehement contentions to the contrary, that Order provides no support for
either party’s position on whether discovery is available in this case, much less the scope of the
contemplated discovery.
               ii. Discovery is Not Categorically Prohibited in Military Pay
                   Cases.
        Plaintiffs argue that, like in Lippmann v. United States, 

(2016), fact
discovery is necessary to determine “whether the CRSP process was conducted pursuant to a
reduction in force in view of the Coast Guard’s pre-litigation understanding and use of that
term.” (Mot. to Comp. at 7). Plaintiffs further contend that because the evidence they seek was
unavailable below, this Court’s review of Plaintiffs’ claims is not limited to the administrative
record. (Id. at 8 (citing Wyatt v. United States, 

, 319 (1991)). The United States
counters that Lippmann was incorrectly decided and cites several cases in support of its argument
that this Court’s review is limited to the administrative record in military pay cases. 2 (Def.’s
Resp. at 13). While there is merit to both sides’ arguments, Plaintiffs place too much weight on
Lippman, even if correctly decided, and the cases to which the United States cites do not
squarely address the issue presented in this case.
       In Lippmann v. United States, 

(2016), a servicemember challenged the
Coast Guard’s decision to involuntarily retire him pursuant to the recommendation of a CRSP.
As here, that servicemember elected to bypass a military records corrections board and instead
brought a challenge in this court.

The Court held that it would review the
servicemember’s claims de novo.

Further, the Court held in abeyance the parties’
cross-motions for summary judgment pending further briefing on whether the servicemember
was entitled to a hearing before an Enlisted Personnel Board pursuant to 14 U.S.C. § 357, the


2
 The United States contends Lippmann is incorrect and “contrary to other decisions of the
Federal Circuit, this Court, and this Court’s predecessor[.]” (Def. Resp. at 13 (citing Allphin v.
United States, 

(Fed. Cir. 2014); Bateson v. United States, 

(2000),
aff’d, 64 F. Appx. 244 (Fed. Cir 2003); and Wyatt v. United States, 

(1991))).


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same “reduction in force” statute at issue in this case.

In concluding that
supplemental briefing on the issue was necessary, the Court determined that “a more complete
factual record [was] needed to inform the Court’s analysis of the parties’ cross-motion for
summary judgment on [the issue of whether the Secretary of the Department of Homeland
Security actually ordered a reduction in force].”

However, Lippmann was dismissed
by stipulation of the parties prior to resolution of the § 357 issue. In any event, Lippmann
provides little guidance as to whether discovery is available or warranted here.
        In Allphin v. United States, 

(Fed. Cir. 2014), approximately 300 plaintiff-
servicemembers were separated from the Navy through an Enlisted Retention Board (“ERB”).
The Federal Circuit agreed that the decisions to convene the ERBs and discharge
servicemembers were nonjusticiable, but reviewed whether creation of the ERB exceeded the
Navy’s statutory authority.

On this issue, the Federal Circuit affirmed judgment
on the administrative record for the United States, finding the Navy did not exceed its statutory
authority in implementing the ERBs.

The Federal Circuit also affirmed the Court of
Federal Claims’ denial of the plaintiffs’ motion to supplement the administrative record with
four documents relevant only to the nonjusticiable claims, finding no abuse of discretion in that
decision.

Ignoring that Allphin was adjudicated on the administrative record, the
United States highlights that the Federal Circuit affirmed the Court of Federal Claims’ decision
to deny supplementation of the administrative record and argues that this case contradicts
Lippman. (Def.’s Resp. at 13). The Court sees no irreconcilable tension between the two cases
and finds Allphin largely inapplicable to the discovery dispute at hand.
          In Bateson v. United States, 

, 164 (2000), aff’d, 64 F. Appx. 244 (Fed. Cir
2003), Air Force officers were involuntarily separated as a result of non-selection for promotion.
The plaintiffs contended the selection boards were conducted in violation of statutory and
regulatory procedural requirements.

Several plaintiffs did not pursue administrative
remedies with the Air Force Board for the Correction of Military Records (“AFBCMR”).

the administrative record before the Court comprised only of those plaintiffs’
personnel files.

two issues: (1) whether those plaintiffs who did not
pursue administrative remedies before the AFBCMR were entitled to discovery, and (2) whether
those plaintiffs who had presented claims to the AFBCMR were entitled to conduct discovery in
order to supplement the existing administrative record.

The Court determined that
“[i]n cases where an officer has not pursued an administrative appeal the officer has waived the
right to make an administrative record and has to rely [on] a subsequent action for judicial
review on the evidentiary record before the deciding official.”
 

“[W]here the
evidentiary record is found to be inadequate,” the Court explained, “it is not this Court’s role to
fill in the evidentiary gaps.”
 Id. at 165 
(citing Long v. United States, 
12 Cl. Ct. 174
, 177 (1987)).
In the Bateson Court’s view, plaintiffs may submit new evidence in such cases “only if, (1) the
evidence was unavailable below or (2) if there is a strong showing of bad faith or improper
behavior which creates serious doubts about the integrity of the administrative action.” 
Bateson,
48 Fed. Cl. at 165 
(citing Wyatt v. United States, 
23 Cl. Ct. 314
, 319 (1991)).
       In Wyatt, 
23 Cl. Ct. 314
, the Claims Court examined a servicemember’s challenge to his
involuntary separation. Our predecessor court held that the servicemember was not required to
present his claims for correction of military records to an administrative body prior to bringing




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them in the Claims Court. 3
 Id. at 318. 
However, the Court also held that the servicemember did
not have the right to present new evidence in the Claims Court unless the evidence was
unavailable to the deciding official or the plaintiff demonstrated bad faith or improper behavior.

Id. at 319. 
Nevertheless, Wyatt is readily distinguishable from this case. The Court in Wyatt
reviewed a battalion commander’s decision to discharge the servicemember for unsatisfactory
performance.
 Id. at 320. 
The Court found the battalion commander’s decision, conducted under a
regulation that clearly committed the action to the commander’s discretion, was not arbitrary,
capricious, in bad faith, or unsupported by substantial evidence, or contrary to law.
 Id. at 320–
322. 
Here, the plaintiffs were involuntarily retired by a panel formed pursuant to a different
statute and the underlying claim pertains to the authority of that panel to retire the plaintiffs, not
the substance of the panel’s decision-making process.
        In both Bateson and the present dispute, the plaintiffs filed a motion seeking to conduct
discovery.
 Id. at 163; 
(Mot. to Comp.). However, the topics of discovery sought in Bateson can
be distinguished from the discovery sought here. In Bateson, the plaintiffs sought discovery
related to the proceedings before the board.
 Id. at 163, 
and n.3 (seeking discovery “concerning
the involvement of board members in board proceedings[,]” the “‘quality control’ and auditing
process[,]” “statistical analyses of promotion board results” to compare selection board panels,
and clarification on the process itself, including the meaning of certifying signatures and
“secretarial approval.”). Here, Plaintiffs primarily seek discovery to determine the interpretation
of the relevant statute by the agency in order to determine whether the implementation of the
CRSPs was statutorily permissible. (Mot. to Comp. at 8–9). In this case, Plaintiffs do not attempt
to nitpick adherence to proper procedure by which they were selected for involuntary separation;
they reject the entire process as invalid and seek to gather evidence that was unavailable below.
(Id. (“Plaintiffs did not have the option to bring claims that their involuntary retirements through
the CRSP violated their statutory rights before a military corrections board[.]”)).
        The Court finds the standard set out in Bateson instructive. Discovery is available in
military pay cases brought for the first time in the Court of Federal Claims where “(1) the
evidence was unavailable below or (2) if there is a strong showing of bad faith or improper
behavior which creates serious doubts about the integrity of the administrative action.” 
Bateson,
48 Fed. Cl. at 164
, aff’d, 64 F. Appx. 244 (citing Wyatt, 23 Cl. at 319). Therefore, the United
States’ Motion for a Protective Order must be denied because it incorrectly seeks relief on the
basis discovery is categorically unavailable in military pay cases.
         This conclusion is supported by the same rationale that allows supplementation of the
administrative record in standard military pay cases. “[W]hen a service member does pursue
[relief from a military corrections board], the Court of Federal Claims reviews the Board’s action
under the same standard as any other agency action.” Metz v. United States, 
466 F.3d 991
, 998
(Fed. Cir. 2006). That is, “whether the decision is arbitrary, capricious, unsupported by


3
  Unlike other circuits, this Court may hear claims for injunctive relief prior to exhaustion of
administrative remedies. Heisig v. United States, 
719 F.2d 1153
, 1155 (Fed. Cir. 1983); contra
Navas v. Gonzales Vales, 
752 F.2d 765
, 796 (1st Cir. 1985) (finding servicemember-plaintiff’s
claim nonjusticiable where he failed to exhaust intraservice administrative remedies prior to
seeking judicial review); Ballenger v. Marsh, 
708 F.2d 349
, 350–51 (8th Cir. 1983) (same);
Diliberti v. Brown, 
583 F.2d 950
, 951 (7th Cir. 1978) (same).


                                                  5
substantial evidence, or contrary to law.” Porter v. United States, 
163 F.3d 1304
, 1312 (Fed. Cir.
1998). “The focus of judicial review of agency action remains the administrative record, which
should be supplemented only if the existing record is insufficient to permit meaningful review
consistent with the APA.” Axiom Res. Mgmt., Inc. v. United States, 
564 F.3d 1374
, 1381 (Fed.
Cir. 2009) (emphasis added). However, the Court does not “[lose] its ability to hold evidentiary
hearings to determine jurisdictional facts, or to consider ‘extra-record’ evidence in extremely
limited situations.” 
Metz, 466 F.3d at 998
. In this extraordinary case, the Plaintiffs should not be
denied the opportunity to supply the Court with “extra-record” evidence that was unavailable to
support their claim in the administrative proceedings below.
       B. Discovery Is Limited to the Coast Guard’s Interpretation of 14 U.S.C. § 357.
        In their Notice of Deposition, Plaintiffs proposed twelve topics of potential examination
for their requested RCFC 30(b)(6) deposition. (See Pls.’ Not. of Dep., ECF No. 39-4). As the
Court expressed during the August 6, 2020 oral argument, while the Court is convinced limited
discovery is appropriate in this case, it will defer ruling on whether the twelve topics proposed
fall within this limited scope. For now, the Court defers resolving issues of the scope of
deposition topics in favor of negotiations between the parties who, presumably, are in the best
position to determine with specificity those topics that are necessary to illuminate how the Coast
Guard interpreted 14 U.S.C. § 357 prior to litigation in this case. However, the Court
acknowledges some discussion may aid those negotiations and ultimately render Plaintiffs’
Motion to Compel moot.
        The parties agree that this case turns on whether the Coast Guard conducted a reduction
in force pursuant to 357(j), or whether retirement using the CRSP was unlawful because there
was no reduction in force. (See Mot. to Comp. at 1; Def.’s Resp. at 7). In requesting that the
Coast Guard produce a representative for deposition, Plaintiffs seek to gain context for the
documents the United States has already produced, as well as context for documents contained in
the “administrative record” compiled by the United States. (Pls.’ Reply at 8–9). The Court finds
that additional discovery is warranted to determine the Coast Guard’s interpretation of “reduction
in force,” which may be gleaned from prior uses of the CRSP, and/or prior Coast Guard
“workforce flow” tools under 357(j) within a reasonable amount of time. Additionally, insight
into the decision-making process that resulted in a public messaging campaign emphasizing that
the CRSP was a not reduction in force—a message directly contrary to the position the United
States now takes—is likely to be relevant to the Plaintiffs’ claim and proportional to the needs of
the case.
        While the Court makes no decision as to compelling discovery on particular topics
identified by Plaintiffs, the Court hopes its discussion of these issues will guide the parties to
appropriate boundaries for limited discovery.
                                       IV.     Conclusion
       Based on the foregoing, the United States’ Motion for a Protective Order (ECF No. 46) is
DENIED. The Court DEFERS resolution of Plaintiffs’ Motion to Compel (ECF No. 39),
pending additional discussions between the parties.
       On or before August 24, 2020, the parties shall meet and confer in good faith to come to
an agreement regarding the topics and form of discovery. On or before August 27, 2020, the



                                                  6
parties shall file a joint status report apprising the Court of the results from those discussions,
including whether areas of disagreement necessitate a ruling on Plaintiffs’ Motion to Compel.
This status report shall also contain a proposed schedule for further proceedings, including an
agreed schedule for dispositive motions.
       IT IS SO ORDERED.

                                                                       s/  David A. Tapp
                                                                       DAVID A. TAPP, Judge




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