Malcolm Pipes v. United States

United States Court of Appeals
for the Federal Circuit
______________________
MALCOLM PIPES,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-1509
______________________
Appeal from the United States Court of Federal Claims
in No. 1:15-cv-01163-RAH, Judge Richard A. Hertling.
______________________
Decided: December 16, 2024
______________________
ALLEN ARTHUR SHOIKHETBROD, Tully Rinckey PLLC,
Albany, NY, argued for plaintiff-appellant.
RETA EMMA BEZAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by BRIAN M. BOYNTON, DEBORAH ANN BYNUM,
PATRICIA M. MCCARTHY, KRISTIN ELAINE OLSON; MARC A.
NOWAK, Military Personnel Law and Litigation Branch,
The Judge Advocate General’s Corps., United States Air
Force, Joint Base Andrews, MD.
______________________
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PIPES v. US 2
Before PROST, CLEVENGER, and CHEN, Circuit Judges.
CHEN, Circuit Judge.
Malcolm Pipes appeals the decision of the United
States Court of Federal Claims (Claims Court) granting
the United States’ motion for judgment on the
administrative record and denying Mr. Pipes’s. Pipes v.
United States, 157 Fed. Cl. 483 (2022) (Decision).
Mr. Pipes, a former reservist in the United States Air Force
(Air Force), seeks disability-retirement pay and benefits
through his Application for Correction of Military Records
filed with the Air Force Board for Correction of Military
Records (AFBCMR).1
This case is before us for a second time. In the first
appeal, we reversed, holding that Mr. Pipes was in a duty
status—specifically, inactive-duty training (IDT) status—
when he was ordered to participate in the Air Force’s Self-
paced Fitness Improvement Program (SFIP). Pipes v.
United States, 791 F. App’x 910, 916 (Fed. Cir. 2019) (Pipes
I). We reversed because, “to the extent their analysis
turned on [Mr.] Pipes’[s] duty status at the time of his
orders, both the AFBCMR and the Claims Court erred in
concluding that [Mr.] Pipes was not lawfully ordered to
perform the SFIP designed for him.” Id. Although the
SFIP was ordinarily offered to reservists as a
recommendation, Mr. Pipes received a sui generis mandate
to participate. Id. at 916 n.4. Pipes I did not address,
however, the question of whether Mr. Pipes was in a duty
1 “The Secretary of a military department may
correct any military record of the Secretary’s department
when the Secretary considers it necessary to correct an
error or remove an injustice. . . . [S]uch corrections shall be
made by the Secretary acting through boards of civilians of
the executive part of that military department.” 10 U.S.C.
§ 1552(a)(1).
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PIPES v. US 3
status when performing the SFIP, nor did it suggest that
the sui generis order to participate automatically placed
him into such status. On remand, the Claims Court and
the AFBCMR denied relief to Mr. Pipes, concluding that, at
the time of his injury, he was not in IDT status. For the
reasons explained below, we affirm.
BACKGROUND
Our previous decision explains the circumstances of
Mr. Pipes’s enrollment in the SFIP and his stroke while
participating in that program, as well as the procedural
history before the AFBCMR and Claims Court leading up
to that appeal. Pipes I, 791 F. App’x at 911–14. We assume
familiarity with these facts and therefore provide further
details only as relevant to this appeal.
I
We begin with an overview of the legal framework for
Air Force reserve disability retirement, with a particular
focus on IDT status. Section 1204 of Title 10 of the United
States Code provides the conditions for entitlement to
disability retirement for service members who were on
active duty for 30 or fewer days or on IDT. In relevant part,
the statute provides:
Upon a determination by the Secretary concerned[2]
that a member of the armed forces . . . is unfit to
perform the duties of his office, grade, rank, or
rating because of physical disability, the Secretary
may retire the member with retired pay . . . if the
Secretary also determines that . . . the
disability . . . is a result of an injury, illness, or
2 The term “Secretary concerned” means “the
Secretary of the Air Force, with respect to matters
concerning the Air Force and the Space Force.” 10 U.S.C.
§ 101(a)(9)(C).
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PIPES v. US 4
disease incurred or aggravated in line of
duty . . . while performing active duty or inactive-
duty training . . . .
10 U.S.C. § 1204(2)(B)(i) (emphases added). The term
“inactive-duty training,” in turn, is defined in relevant part
as:
(A) duty prescribed for Reserves . . . by the
Secretary concerned under section 206 of title 37 or
any other provision of law; and
(B) special additional duties authorized for
Reserves . . . by an authority designated by the
Secretary concerned and performed by them on a
voluntary basis in connection with the prescribed
training or maintenance activities of the units to
which they are assigned.
Id. § 101(d)(7).
The Air Force regulates “reserve personnel
participation and training procedures” through Air Force
Manual (AFMAN) 36-8001. J.A. 473 (capitalization
removed); see also id. (The manual “gives guidelines for
training and education activities within an Air Force
Reserve unit.”). AFMAN 36-8001 is issued by order of the
Secretary of the Air Force (Secretary), and compliance with
the publication is mandatory. Id. Chapter four of AFMAN
36-8001 concerns IDT, including the types of IDT available
and the administrative requirements for “IDT
Authorization.” J.A. 250–51 ¶¶ 4.1–4.2. In relevant part,
paragraph 4.2.1 provides:
4.2.1. All IDT must:
4.2.1.1. Have advance authorization from
the member’s unit commander (or
designated representative) for unit
personnel. For Individual Reservists the
authorizing authority is the supervisor or
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PIPES v. US 5
program manager (This is done in Block III
of the AF Form 40A).
4.2.1.2. . . . . All IDT periods must be
approved in advance, in writing, by the
member’s supervisor with an information
copy to the appropriate assigned Program
Manager, in advance of performing any
IDT period.
4.2.1.3. Be performed for pay and points,[3]
or points only as an [Air Force Reserve]
member without pay from another US
government source (i.e. no dual
compensation).
J.A. 250 ¶ 4.2.1 (emphases added). This paragraph
conveys two requirements for “[a]ll” IDT: (1) the IDT must
be authorized in advance and in writing by the reservist’s
supervisor, and (2) the IDT must be performed for either
pay and points or points only. Id.
Chapter four of AFMAN 36-8001 also provides the
minimum duration of an activity to be eligible for IDT:
“Paid IDT periods shall not be under 4 hours,” and “[p]oints
only IDT periods shall not be under 2 hours.” Id. at 254
¶ 4.9. The only exception is for certain designated
activities, for which a reservist can use the “cumulative
method of time accounting” to “accumulate time spent
(over 1 or more days) until reaching the 4-hour standard
for one point.” Id. ¶ 4.9.1.
3 “Points are a unit of measurement of tracking a
member’s participation. They are also used to calculate the
amount of participation for retirement purposes.” J.A. 238
¶ 2.1.
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PIPES v. US 6
II
On remand from our decision in Pipes I, the AFBCMR
denied relief to Mr. Pipes on the basis that the order
Mr. Pipes received to participate in the SFIP, “even though
lawful, was not enforceable when the member was in
civilian status,” and therefore Mr. Pipes was not in duty
status when his stroke occurred while he was participating
in the SFIP. J.A. 468, 470 (emphases added). The Claims
Court vacated that decision as arbitrary and capricious
because the “finding that the lawful order was legally
unenforceable is inconsistent with” this court’s holding in
Pipes I. Pipes v. United States, 150 Fed. Cl. 76, 82–84, 87
(2020). The Claims Court further noted that the AFBCMR
“did not consider whether [Mr. Pipes] was required to
satisfy the requirements of the AFMAN to qualify for IDT
status.” Id. at 86–87. Accordingly, the Claims Court
remanded the case to the AFBCMR to consider that
question, which turns on “whether the AFMAN’s
provisions are applicable to IDT pursuant to subparagraph
(B) of section 107(d)(7) of Title 10.”4 Id. at 87.
In December 2020, on remand from the Claims Court,
the AFBCMR again denied relief to Mr. Pipes. The
AFBCMR determined that “the AFMAN 36-8001
administrative requirements apply to both 10 U.S.C.
[§] 101(d)(7), subparagraphs (A) and (B)” and “AFMAN 36-
8001 implements 10 U.S.C. [§] 101(d)(7) by providing the
procedures for scheduling and authorizing IDTs, paid or
unpaid, and the method for ensuring the proper accounting
for each IDT.” J.A. 346. The AFBCMR concluded, then,
that under the AFMAN, reservists “must have the
commander’s (or designee[’s]) authorization in advance to
perform an IDT, paid or unpaid.” Id. The AFBCMR found
4 Mr. Pipes does not claim that at the time of his
stroke he was in IDT status under subparagraph (A) of that
section.
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PIPES v. US 7
that Mr. Pipes failed to prove he obtained the
authorization for IDT required by the AFMAN:
Although the commander issued [Mr. Pipes] a
lawful order to perform the SFIP . . . , after a
review of the entire case file, to include
[Mr. Pipes’s] rebuttal, the [AFBCMR] finds no
documented evidence of advance IDT authorization
by the commander (or designee) for
exercising. . . . While the commander ordered
[Mr. Pipes] to exercise, the [AFBCMR] finds this
order does not automatically authorize IDT, paid or
unpaid.
Id.
Following that decision, Mr. Pipes moved before the
Claims Court for a further remand to the AFBCMR so that
it could consider a new report by Mr. Pipes’s expert,
Colonel (Ret.) Larry D. Youngner. The Claims Court
granted Mr. Pipes’s motion.
In August 2021, the AFBCMR reviewed
Col. Youngner’s new expert report (as well as his
supplemental expert report) and issued another decision,
stating that it “remain[ed] unconvinced the evidence
presented demonstrates an error or injustice.” J.A. 433.
The AFBCMR found that “a valid order to perform duty
does not automatically place a service member in an IDT
period and the commander, outside of any other orders
given to the reservist, must approve IDT periods.” Id. at
435. It then reiterated that, “as explained in [the
AFBCMR’s] previous conclusion . . . [Mr. Pipes] has
provided no evidence that his commander ever attempted
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PIPES v. US 8
to authorize[] an unpaid IDT for [Mr. Pipes’s] SFIP
participation outside of the UTA.” Id.5
In January 2022, the Claims Court granted the United
States’ motion for judgment on the administrative record
and denied Mr. Pipes’s.6 First, the court rejected
Mr. Pipes’s argument that the AFBCMR’s interpretation of
the AFMAN’s scope was contrary to law. Decision, 157 Fed.
Cl. at 489–90. Second, the court agreed with the AFBCMR
that the order for Mr. Pipes to participate in the SFIP did
not itself authorize IDT status and that “there is no
evidence in the record that [Mr. Pipes] had advance
authorization for IDT status, as required by the AFMAN.”
Id. at 491–92.
Mr. Pipes appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(3).
STANDARD OF REVIEW
We review a decision of the Claims Court granting or
denying a motion for judgment on the administrative
record de novo and apply the same standard of review as
the Claims Court. Roth v. United States, 378 F.3d 1371,
1381 (Fed. Cir. 2004); see also Chambers v. United States,
417 F.3d 1218, 1227 (Fed. Cir. 2005). Under that standard,
“we will not disturb the decision of the [AFBCMR] unless
it is arbitrary, capricious, contrary to law, or unsupported
by substantial evidence.” Chambers, 417 F.3d at 1227.
5 A UTA, or Unit Training Assembly, is a scheduled
period of IDT completed by a Reserve unit. See J.A. 250
¶ 4.1.2; Pipes I, 791 F. App’x at 912.
6 The Claims Court “review[ed] both the AFBCMR’s
December 2020 decision on remand after Pipes I[] and its
August 2021 decision responding to Col. Youngner’s
report.” Decision, 157 Fed. Cl. at 488 n.5 (citations
omitted).
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PIPES v. US 9
DISCUSSION
Mr. Pipes’s claim for disability-retirement pay and
benefits rests on his view that he was in IDT status at the
time of his injury. Mr. Pipes does not dispute that he did
not receive authorization to perform IDT for either pay or
points. Instead, Mr. Pipes contends that when
participating in the SFIP, he was performing IDT for no
pay and no points and was authorized to do so. He alleges
two errors in the decision of the Claims Court on appeal.
First, Mr. Pipes argues that the Claims Court erred in
upholding the AFBCMR’s conclusion that the AFMAN
applies to all IDT under 10 U.S.C. § 101(d)(7)(B). Second,
Mr. Pipes contends that even if the AFMAN did apply to
him, the Claims Court erred in agreeing with the AFBCMR
that he failed to prove he received the advance
authorization required by the AFMAN. We reject both
arguments.
I
According to Mr. Pipes, “[t]he AFMAN does not apply
to duties not performed for pay or points, nor does it apply
to training periods less than two (2) hours.” Appellant’s Br.
21. In other words, Mr. Pipes contends that a reservist can
perform IDT without complying with the AFMAN’s
procedural requirements if performing duties not for pay or
points or duties of insufficient duration.
Mr. Pipes has not shown the existence of a class of IDT
that is without compensation and not subject to the
strictures of the AFMAN. The AFMAN, with which
“compliance . . . is mandatory,” J.A. 473 (capitalization
removed), states on its face that “[a]ll IDT must . . . [b]e
performed for pay and points, or points only” and must
“[h]ave advance authorization from the member’s unit
commander,” J.A. 250 ¶ 4.2.1 (emphasis added). Mr. Pipes
points to no provision of the AFMAN contemplating that
IDT may be performed without receipt of pay or points or
that the AFMAN applies to only a subset of IDT.
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PIPES v. US 10
Mr. Pipes relies primarily on several publications—Air
Force Instruction 36-2910 and two chapters from Volume
7A of the Department of Defense (DOD) Financial
Management Regulation—that discuss IDT “without pay.”
See J.A. 180; J.A. 311; J.A. 312. These references do not
support Mr. Pipes’s argument. It is undisputed that IDT
without pay exists. These references do not show the
existence of IDT without compensation, i.e., IDT without
pay or points. Indeed, they are consistent with the
AFMAN, which distinguishes between IDT “for pay and
points” and IDT “for . . . points only . . . without pay from
another US government source.” J.A. 250 ¶ 4.2.1.3
(emphases added). Mr. Pipes also cites a definition of IDT
contained in DOD Instruction Number 4515.16, but this
definition does not even mention the words pay or points,
let alone indicate whether IDT may be performed without
pay or points. J.A. 230–31.
Nevertheless, even if Mr. Pipes were correct as to the
existence of a type of IDT without compensation under 10
U.S.C. § 101(d)(7)(B),7 the AFMAN is clear that “all IDT”
must be authorized in advance. J.A. 250 (emphasis added);
see also 10 U.S.C. § 12315(a) (mandating that “[d]uty
without pay shall be considered for all purposes as if it were
duty with pay”). Mr. Pipes confuses the AFMAN’s
requirements for IDT with the scope of the AFMAN. That
the AFMAN does not contemplate IDT without pay or
points or IDT for activity periods under two hours does not
mean that such activity can constitute IDT beyond the
scope of the AFMAN and thus be exempt from its
procedural requirements. Such logic would lead to the
nonsensical result that activity failing to meet any of the
AFMAN’s regulations of IDT—for example, activity that
7 We note that Mr. Pipes does not challenge the
legality of AFMAN 36-8001 as contrary to 10 U.S.C.
§ 101(d)(7)(B).
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PIPES v. US 11
lacks “appropriate and adequate training”—is exempted
from the AFMAN’s requirement that all IDT be approved
in advance. J.A. 250.
The Claims Court did not err in concluding that the
AFBCMR’s determination that the AFMAN applies to and
requires advance authorization for all IDT is not arbitrary,
capricious, contrary to law, or unsupported by substantial
evidence.
II
We next address Mr. Pipes’s contention that even if the
AFMAN requires that he obtain advance authorization for
IDT status, he received such authorization for his
participation in the SFIP and the Claims Court and
AFBCMR erred in holding otherwise. We reject each of
Mr. Pipes’s arguments in support of this position.
A
Mr. Pipes first relies on certified statements by two of
his former supervising Commanders asserting that he was
in IDT status when performing his SFIP. Mr. Pipes
forfeited this argument. As the United States points out,
“Mr. Pipes did not bring up these statements or argue their
relevance before the AFBCMR on two remands or to the
[Claims Court] after the AFBCMR’s subsequent two
decisions, even though he had opportunities to do so.”
Appellee’s Br. 32; see Metz v. United States, 466 F.3d 991,
999 (Fed. Cir. 2006) (collecting cases and finding forfeiture
of “ability to challenge the [AFBCMR’s] decision based on”
argument not raised to the AFBCMR). Mr. Pipes’s only
response is to note that these statements were part of the
record before the AFBCMR, the Claims Court, and our
court during Pipes I. See Appellant’s Reply Br. 5–6. This
does not suffice. Courts of appeals “apply forfeiture to
unarticulated legal and evidentiary theories not only
because judges are not like pigs, hunting for truffles buried
in briefs or the record, but also because such a rule ensures
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PIPES v. US 12
fairness to both parties.” Jones v. Kirchner, 835 F.3d 74, 83
(D.C. Cir. 2016) (cleaned up).
In any event, despite Mr. Pipes’s failure to particularly
identify to the AFBCMR the statements he now relies on,
the AFBCMR reviewed Mr. Pipes’s “entire case file” and
“all Exhibits” yet still found “no documented evidence of
advance IDT authorization.” J.A. 346; J.A. 433, 435. The
AFBCMR presumably reviewed the Commanders’ certified
statements and reasonably found them inadequate.
Neither Commander avers that he gave Mr. Pipes the
necessary advance authorization for IDT status, nor claims
personal knowledge that another Commander did so. The
conclusory, post hoc statements do not render the
AFBCMR’s finding unsupported by substantial evidence.
B
Mr. Pipes next argues that the lawful order requiring
him to participate in the SFIP itself constituted
authorization for IDT status. Like the AFBCMR and the
Claims Court, we are unpersuaded by this argument. The
Claims Court noted that Mr. Pipes “has not pointed to any
source of law establishing an IDT status implicitly
authorized in this way, and [Mr. Pipes’s] counsel admitted
at oral argument that this situation was not necessarily
contemplated by the relevant statutes and regulations.”
Decision, 157 Fed. Cl. at 492. Mr. Pipes has also not
provided any such authority before us.
Our decision in Clark v. United States, 656 F.3d 1317
(Fed. Cir. 2011) (Clark II) is instructive. In Clark II,
National Guard members brought a class action seeking
compensation for time spent taking correspondence
courses that they were required to take by the Secretary of
the Army and the Secretary of the Air Force. Id. at 1318–
19. We affirmed a grant of summary judgment against the
National Guard members because regulations prescribed
by the respective Secretaries required “written
authorization placing [a member] into a pay duty status”
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PIPES v. US 13
as a “prerequisite” for training to be compensable, and
“none of the plaintiffs received written orders or
authorizations from their state commanders in connection
with any of the correspondence courses they took.” Id. at
1322 (citation omitted). That is, Clark II held that a
requirement to participate in certain training does not ipso
facto place a member of the armed forces into duty status
if advance authorization for such status is a prerequisite
prescribed by the Secretary but is not obtained.8
Mr. Pipes cites several non-binding cases and one case
from one of our predecessor courts in support of his
argument. Crucially, none of Mr. Pipes’s cases address
whether a lawful order to perform some activity
automatically places a service member in duty status
despite a lack of required preauthorization for such status.
In Skaradowski v. United States, 471 F.2d 627, 629 (Ct. Cl.
1973) (per curiam), for example, a member of the Army
Active Reserve was ordered in writing to active duty for
training for a defined duration “unless . . . extended by
proper authority.” The Army Board for the Correction of
Military Records found that verbal orders of the reservist’s
commanding officer were insufficient evidence that his
active duty had been extended. Id. at 629, 631. The Court
of Claims disagreed, holding that the reservist’s initial
period of active duty was properly extended by verbal order,
notwithstanding that the order was not confirmed in
writing. Id. at 631. By contrast, the issue in our case is
8 Mr. Pipes cites to and misreads our earlier decision
in Clark v. United States, 322 F.3d 1358 (Fed. Cir. 2003)
(Clark I), as determining that the National Guard
members were “entitled to compensation for completing
required correspondence courses in off duty time.”
Appellant’s Br. 34. We expressly noted in Clark II that our
Clark I “opinion did not express an ultimate view on the
merits of [the] claim for compensation.” 656 F.3d at 1321.
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PIPES v. US 14
whether Mr. Pipes was authorized for duty status at all
when performing his SFIP.
Furthermore, unlike the formalistic reasoning of the
military corrections board in Skaradowski, the AFBCMR
here found that “the case turns on whether [Mr. Pipes] had
prior commander authorization to be in a no pay/no points
IDT status” regardless of the absence in Mr. Pipes’s case
file of a completed Form 40A—the form directed by the
AFMAN to be used in obtaining and documenting advance
authorization for IDT. J.A. 346; see J.A. 250 ¶ 4.2.1.1; J.A.
257 ¶ 4.12.1.1; see also Decision, 157 Fed. Cl. at 491 (“[T]he
lack of the [Air Force] Form 40A was not determinative for
the [AFBCMR’s] decision . . . .”). Mr. Pipes’s arguments
concerning Form 40A therefore miss the point, as
the AFBCMR’s decision did not turn on the absence of that
form.
Accordingly, the AFBCMR’s conclusion that the order
directing Mr. Pipes to participate in the SFIP did not itself
authorize IDT status is not arbitrary, capricious, contrary
to law, or unsupported by substantial evidence.
C
Finally, Mr. Pipes suggests that his stroke must have
occurred while he was in duty status because the
Department of Veterans Affairs (VA) has granted him
service connection for residuals of the stroke. See
Appellant’s Br. 24, 32, 40. But because of the different
standards applicable to the VA’s inquiry for service
connection, “the VA’s disability determinations are not
‘binding upon the court nor conclusive on the issue of
disability retirement.’” Gilbreth v. United States, 94 Fed.
Cl. 88, 97 (2010) (quoting Finn v. United States, 548 F.2d
340, 342 (Ct. Cl. 1977)). Such differences are on full display
in this case. By regulation, the VA will consider a
“secondary condition” to be service connected if the
disability “is proximately due to or the result of a service-
connected disease or injury.” 38 C.F.R. § 3.310(a). In
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PIPES v. US 15
granting service connection for Mr. Pipes’s stroke, the
Board of Veterans’ Appeals did not determine that
Mr. Pipes’s stroke was incurred or aggravated during duty
status. Rather, it merely found that the stroke was
proximately caused by Mr. Pipes’s already service-
connected hypertension. See J.A. 271–74; Appellee’s Br.
36–37 (citing J.A. 271–74). This finding has no bearing on
the issue of Mr. Pipes’s duty status and whether he
received the advance authorization required by the
AFMAN for such status.9
* * *
After reviewing Mr. Pipes’s submissions, the AFBCMR
ultimately found that Mr. Pipes provided no evidence that
he was authorized for IDT status when performing the
SFIP. We cannot say that this finding is arbitrary,
capricious, contrary to law, or unsupported by substantial
evidence.
CONCLUSION
We have considered Mr. Pipes’s remaining arguments
but find them unpersuasive. We sympathize with the
plight of Mr. Pipes. However, we discern no error in the
9 Mr. Pipes relatedly contends that a conflict exists
between the applications of 10 U.S.C. § 1204 and 38 U.S.C.
§ 5107, the statutory “benefit of the doubt” rule applicable
to claims for VA benefits. In obligating “the Secretary” to
provide VA claimants with the benefit of the doubt in cases
of approximately equipoised evidence, section 5107 refers
to the Secretary of Veterans Affairs, not the Secretary of
the Air Force or of any other military branch. See 38 U.S.C.
§ 101(1). And to the extent Mr. Pipes refers to the differing
outcomes between the VA’s grant of service connection and
the AFBCMR’s determinations regarding Mr. Pipes’s duty
status, there is no “conflict” as just explained.
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PIPES v. US 16
decision under review before us. We therefore affirm the
judgment of the Claims Court.
AFFIRMED
COSTS
No costs.
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