Damon J. Claiborne v. Ryan McCarthy, Secretary of the Army

Whether the Secretary violated departmental regulations that prohibited administrative double jeopardy by subjecting Claiborne, months before he vested in a 20-year retirement, to a second adjudication for the very same conduct that had been addressed and finalized in Claiborne’s favor 10 years previously, and then reversed the result to deprive Claiborne and his family of retired pay and medical care for the balance of his life. The Ninth Circuit, in rejecting Claiborne’s constitutional challenges, wrote, “those regulations allow the [Secretary] to change [his] mind about separation decisions.” Claiborne v. McCarthy, No. 18- 36023, 2020 U.S. App. LEXIS 7846 (9th Cir. Mar. 12, 2020). The assertion that the “[Secretary] could always change [his] mind” is a finding entirely inconsistent with administrative law, constitutional due process, and smacking of King George III’s tyrannical rule over the American colonies: delete the word “Secretary” and insert the word “King,” and the Ninth Circuit’s reasoning reads, “the King could always change his mind.” The American Constitution and this Court’s jurisprudence say otherwise.

Whether the Secretary exceeded the authority Congress delegated to him in the applicable enabling statute by unilaterally adding sweeping temporal language to promulgate and retroactively