Between 2010 and 2015, the Coast Guard forced involuntary retirement onto hundreds of enlisted members through use of so-called Career Retention Screening Panels (CRSPs). On behalf of four named plaintiffs, attorneys at Kirkland and Ellis filed a complaint in the U.S. Court of Federal Claims challenging the legality of the CRSPs. See Tippins v. United States, No. 18-cv-00923 (Ct. Cl. Dec. 8, 2021). The attorneys further sought to certify the matter as a class action on behalf of all members retired using the 2012-2014 CRSPs but class certification was tabled pending the results of summary judgment regarding the named plaintiffs.
Generally, enlisted members with 20 or more years of active service can only be involuntarily separated following review by an enlisted personnel board and only on the bases of specific adverse findings that member’s performance was unsatisfactory or there was a dereliction of duty. However, under 14 U.S.C. § 357(j), the Coast Guard was permitted to involuntarily separate enlisted members without convening enlisted personnel boards if the separation was part of a “reduction in force.” The Court ruled in July 2021 that the CRSPs clearly were not a part of a reduction in force and was not intended to reduce the size of the force. Really, the CRSPs appear to be a money-saving measure to replace older members with younger, cheaper ones while keeping the size of the force and number of billets undisturbed. Despite the Coast Guard’s arguments to the contrary, the Court entered summary judgment for the four named plaintiffs’ CRSPs were unlawful and ordered additional proceedings to determine appropriate remedies. The Coast Guard thereafter requested reconsideration of the decision, which was denied in December 2021 for similar reasons.
The decisions could have broad implications for the hundreds of members separated through CRSPs. But the path to legal relief depends on how potential appeals may play out and the timing of the members’ separations, as some CRSP-retired members will outside of the statute of limitations and therefore not members of the Tippins class.
What does this all mean for members separated through CRSPs who are not plaintiffs this lawsuit?
The short answer is that it is not yet clear. The Coast Guard has until early February 2022 to file an appeal to the United States Circuit Court for the Federal Circuit. If the Coast Guard appeals, the Federal Circuit may uphold or reverse the lower court decision. And the parties may or may not seek review of the Federal Circuit’s decision at the United States Supreme Court.
Once all appeals are completed and if the lower court’s rulings are affirmed, the court will move forward with class certification and members of the class will be represented as in any typical class action.
However, members who are outside of the class likely will need to apply to the Coast Guard Board for Correction of Military Records (CGBCMR). But until there is some finality to the Tippins case, they likely will not have the requisite legal authority to make the most compelling case to the CGBCMR.