Sharpe v. United States

Pro Se

Question(s) Presented

“This case concerns the Defense Finance and Accounting Service (DFAS) and its inexplicable refusal under 10 U.S.C. § 1552(c) to calculate, with respect to certain military pay and allowances, which it administers, the amounts ‘found to be due the [Petitioner] on account of his service in the . . . Navy,’ id., following the correction of his naval record by the Secretary of the Navy (SECNAV), acting through the Board for Correction of Naval Records (BCNR). Instead of exercising its discretion as obliged under § 1552(c) – clearly interpreted by regulations and by 65 years’ worth of settled administrative and judicial case law, consistent with the legislative history as to the statute’s meaning – and under 31 U.S.C. § 3702, implemented at 32 C.F.R. § 281, making DFAS responsible for setting military pay claims, the latter balked, instead demanding — a year after SECNAV’s favorable action – that Navy personnel officials tell DFAS what the financial consequences of Petitioner’s § 1552 record correction should be. The Navy improperly acquiesced, for purposes of litigation (then stayed in the Court of Federal Claims), and had a uniformed attorney draft a letter for a civilian colleague in the Bureau of Personnel (BUPERS), directing DFAS to ‘re-correct’ Petitioner’s record to arrive at the entitlements outcome Navy litigators thought appropriate, not only contrary to the original Secretarial correction but in violation of every conceivable correction-board case, statute, and regulation. Both the Court of Federal Claims and the Federal Circuit upheld the Navy lawyers’ actions, while strangely ignoring the volume of statutory, regulatory, and case law cited in Petitioner’s briefs. This factually simple case has sweeping implications. The Federal Circuit’s errors contradict this Court’s (and its own) precedents in fundamental areas of constitutional and administrative law, clouding a previously clear horizon of adjudication and practice in administratively settling claims arising from military-record corrections. Summary reversal and remand to DFAS are absolutely in order, on the basis of the answers to the following questions presented: I. Whether the acts of officials of the Departments of Defense and of the Navy are bound by statute and regulation. II. Whether a court may find valid an act of agency counsel purporting to exercise agency discretion, when the officials entrusted with it have failed to act in the first instance, and the court’s judgment will thereby substitute for the agency’s. III. Whether the federal separation of powers permits the judiciary to exercise discretion with respect to military personnel assignments. IV. Whether the Constitution permits disbursements from the federal treasury on an equitable basis without express statutory or regulatory authorization. V. Whether the entitlement of a uniformed servicemember to pay and allowances depends on work performed or services rendered, absent a provision to the contrary by the applicable statutes or regulations.”

Posts About this Case

Proceedings and Orders
January 8, 2020
DISTRIBUTED for Conference of 1/24/2020.
January 27, 2020
Petition DENIED.
February 26, 2020
DISTRIBUTED for Conference of 3/20/2020.
March 23, 2020
Rehearing DENIED.