Practitioners in the United States Court of Federal Claims who handle military pay cases should be aware of an amendment to the Rules of the Court of Federal Claims (“RCFC”) that takes effect Monday, July 29, 2024. The amended RCFC add a new Appendix K, Procedure in Military Pay Cases, establishing a new process for the parties to follow in three principal ways: (1) the parties jointly proposing a schedule; (2) the preparation and filing of the Administrative Record (“AR”); and (3) the preparation and filing of an appendix related to the AR.
The new Appendix K applies only to military pay cases relying upon claims under the Military Pay Act, 37 U.S.C. § 204. This limitation to the scope of the new procedure is surprising, because a substantial number of military pay cases filed with the Court rely on the military disability retirement statutes, 10 U.S.C. §§ 1201 or 1204, or on the various longevity retirement statutes specific to each of the military departments.
Under the new scheduling procedure, the United States is no longer required to file an answer to the complaint. Instead, the parties must file a joint motion for entry of a scheduling order within 60 days after service of the complaint or within 14 days after denial of a government motion to dismiss or for a remand of the case to the agency. The proposed scheduling order must include a deadline for the government to file the AR and the new appendix.
The new Appendix K requires that the United States provide the AR to the plaintiff at least 7 days prior to filing so that the parties may confer to resolve any disputes regarding the AR contents. Any dispute regarding the AR that cannot be resolved requires the parties to file a joint status report outlining each party’s position.
The new Appendix K establishes a new requirement that the parties confer to create a paginated appendix with a table of contents containing “any agency-specific rules, instructions, policies, and regulations not codified in the current version of the Code of Federal Regulations cited or otherwise relevant to the issues before the court.” The government has the responsibility for compiling and filing the appendix.
The new Appendix K procedure for the most part merely recognizes current military pay case practice. The United States never answers a military pay complaint, but instead responds by filing a motion to dismiss, a motion for a voluntary remand to the agency, or a motion for judgment on the administrative record (typically after two or more enlargements of time). If the latter course, the parties propose and the Court enters a scheduling order, including the filing of the AR. The formal requirement for an appendix with relevant regulatory or other provisions is new, as typically each party would include such relevant materials in an appendix filed in support of its motion for judgment on the administrative record.
The new Appendix K applies only to military pay cases relying upon claims under the Military Pay Act, 37 U.S.C. § 204. This limitation to the scope of the new procedure is surprising, because a substantial number of military pay cases filed with the Court rely on the military disability retirement statutes, 10 U.S.C. §§ 1201 or 1204, or on the various longevity retirement statutes specific to each of the military departments.
Under the new scheduling procedure, the United States is no longer required to file an answer to the complaint. Instead, the parties must file a joint motion for entry of a scheduling order within 60 days after service of the complaint or within 14 days after denial of a government motion to dismiss or for a remand of the case to the agency. The proposed scheduling order must include a deadline for the government to file the AR and the new appendix.
The new Appendix K requires that the United States provide the AR to the plaintiff at least 7 days prior to filing so that the parties may confer to resolve any disputes regarding the AR contents. Any dispute regarding the AR that cannot be resolved requires the parties to file a joint status report outlining each party’s position.
The new Appendix K establishes a new requirement that the parties confer to create a paginated appendix with a table of contents containing “any agency-specific rules, instructions, policies, and regulations not codified in the current version of the Code of Federal Regulations cited or otherwise relevant to the issues before the court.” The government has the responsibility for compiling and filing the appendix.
The new Appendix K procedure for the most part merely recognizes current military pay case practice. The United States never answers a military pay complaint, but instead responds by filing a motion to dismiss, a motion for a voluntary remand to the agency, or a motion for judgment on the administrative record (typically after two or more enlargements of time). If the latter course, the parties propose and the Court enters a scheduling order, including the filing of the AR. The formal requirement for an appendix with relevant regulatory or other provisions is new, as typically each party would include such relevant materials in an appendix filed in support of its motion for judgment on the administrative record.
