Today, the United States Court of Federal Claims affirmed the U.S. Court of Federal Claims decision in Tippins v. United States, that the U.S Coast Guard unlawfully involuntarily retired hundreds of enlisted members through Active Duty Enlisted Career Retention Screening Panels (CRSPs). The appeals court ruled that the CRSP boards were not convened as part of a reduction in force and, therefore, plaintiff class members who had their careers cut short by these panels were unlawfully separated and likely entitled to potentially considerable monetary damages. You can read the opinion here.
This case has a lengthy history and is well known to current and former senior Coast Guard members. CSRPs were first authorized in 2010 as a mechanism to reduce the high retention among personnel eligible for 20-year retirements who were on indefinite enlistments and often served 30 years. Pursuant to statute, the Coast Guard was required to conduct Enlisted Personnel Boards for senior enlisted members subject to involuntary retirement. Such Boards were authorized in negative instances where, for example, the member’s conduct was marginal, they were financially irresponsible to a degree that brought discredit to the Coast Guard, or their performance was below standards. Members proceeding before the board would be given the opportunity to contest the at an appearance before the board members.
However, statute authorized involuntary retirement action without conducting Enlisted Personnel Boards if the retirement was directed as part of a “reduction in force.” Improperly claiming the CRSPs were part of a reduction in force, the Coast Guard convened five separate CRSPs between 2010 and 2014 and involuntarily retired hundreds of senior enlisted members without convening Enlisted Personnel Boards.
In 2018, several plaintiffs who had been retired through the CRSPs brought a class action lawsuit on behalf of members who were involuntarily by the CRSPs in 2012, 2013, and 2014 (members separated by the 2010 or 2011 CRSPs were unfortunately outside of the six-year statute of limitations). The Claims Court ruled in July 2021 that the CRSPs were not lawfully convened as part of a reduction in force. The government sought reconsideration and the Claims Court again ruled against them. The government then appealed to the Federal Circuit where the case had been sitting since February 2022.
As the Federal Circuit affirmed today, the CRSPs were not part of a reduction in force and all plaintiffs were therefore unlawfully separated. At this point, the government has 45 days to submit a petition for rehearing en banc before the full panel of appellate judges which, in my opinion, is unlikely to be sought or granted because a majority of judges is unlikely to agree to rehear the case. The government may also file a petition for a writ of certiorari with the United States Supreme Court within 90 days of final judgment (after today’s judgment or later if impacted by en banc proceedings). But in my estimation, it is unlikely the government will seek review by the U.S. Supreme Court chance and even more unlikely Supreme Court would grant review if sought.
Once the deadlines have passed and/or all review options have been exhausted, this case likely will return to the Claims Court for additional proceedings. After all of this, there remains an unresolved question as to how damages will be calculated for the members of the class and there may well be additional litigation before it is all said and done. This is a complex issue that I intend to write more about when that time comes.