Hirsch v. United States

Case: 21-2163 Document: 33 Page: 1 Filed: 08/09/2022 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ JONATHAN R. HIRSCH, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee ______________________ 2021-2163 ______________________ Appeal from the United States Court of Federal Claims in No. 1:19-cv-00236-RAH, Judge Richard A. Hertling. ______________________ Decided: August 9, 2022 ______________________ THOMAS ANDREW COULTER, Norton Rose Fulbright US LLP, Washington, DC, argued for plaintiff-appellant. RICHARD PAUL SCHROEDER, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for defendant-appellee. Also represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, DOUGLAS K. MICKLE; NICHOLAS MORJAL, Liti- gation Division, United States Army Legal Services Agency, Fort Belvoir, VA. ______________________ Case: 21-2163 Document: 33 Page: 2 Filed: 08/09/2022 2 HIRSCH v. US Before MOORE, Chief Judge, LOURIE and STARK, Circuit Judges. LOURIE, Circuit Judge. Lieutenant Colonel (“LTC”) Jonathan R. Hirsch began serving in the United States Army in 1988. While serving in the Army, LTC Hirsch attended law school. In 2016, the Army removed LTC Hirsch from active status. According to the Army, he had served for 28 years, the maximum al- lowed for lieutenant colonels under 10 U.S.C. § 14507(a) (absent certain exceptions not applicable here). Because LTC Hirsch disagreed with the Army’s calculation of 28 years, he filed a complaint in the United States Court of Federal Claims (“the Claims Court”). In his complaint, he argued that the Army should have excluded the service that he performed concurrently with law school. In support of his argument, LTC Hirsch pointed to 10 U.S.C. § 14706, which provides that certain periods of service are excluded from the Army’s 28-year calculation. The Claims Court de- nied LTC Hirsch’s claim based on its construction of § 14706. Hirsch v. United States, No. 19-236C, 153 Fed. Cl. 345 (2021) (“Decision”). Because the Claims Court erred in construing § 14706, we reverse its decision and remand for further proceedings consistent with this opinion. BACKGROUND This appeal concerns the Army’s removal of LTC Hirsch from active status. We begin with a brief over- view of the statutory framework governing his removal. I Under 10 U.S.C. § 14507(a), an Army reserve officer who holds the grade of lieutenant colonel and is not recom- mended for promotion, “shall . . . be removed from [the Case: 21-2163 Document: 33 Page: 3 Filed: 08/09/2022 HIRSCH v. US 3 reserve active-status list]” after “complet[ing] 28 years of commissioned service.” 1 When calculating an officer’s removal date, however, the Army need not include every year of service. 2 For ex- ample, 10 U.S.C. § 14706(a)(3) provides a general rule ex- cluding the service that an officer performed while attending an advanced education program (provided that the officer satisfies other relevant requirements, discussed further below). It reads as follows: [A] Reserve officer’s years of service include all ser- vice of the officer as a commissioned officer . . . other than the following: . . . Service after appoint- ment as a commissioned officer of a …

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