In the United States Court of Federal Claims
JOSHUA R. ROSENE,
Plaintiff, No. 25-cv-1871
v. Filed: September 3, 2026
THE UNITED STATES,
Defendant.
Jason E. Perry, Law Office of Jason Perry, Wellington, FL, for Plaintiff.
Reta E. Bezak of the United States Department of Justice, Civil Division, Washington, D.C., for Defendant. With her on the briefs were Douglas K. Mickle, Patricia M. McCarthy, and Brett A. Shumate of the United States Department of Justice, Civil Division, Washington, D.C., and Lieutenant Addison Osborne of the United States Coast Guard.
MEMORANDUM AND ORDER
On June 5, 2024, Plaintiff Joshua R. Rosene entered a Reserve Officer Candidate
Indoctrination course at the Leadership Development Center (LDC) of the United States Coast
Guard (Coast Guard), a military service of Defendant the United States. 1 If Plaintiff had
successfully graduated from the five-week course, he would have been commissioned as an officer
in the Coast Guard Reserve on July 10, 2024.
1
The Coast Guard is “a military service and a branch of the armed forces of the United States at all times.” 14 U.S.C. § 101. The Coast Guard is “a service in the Department of Homeland Security, except when operating as a service in the Navy.” 14 U.S.C. § 103(a). The Coast Guard transfers to the Navy during times of war, if Congress or the President directs a transfer. 14 U.S.C. § 103(b).
However, Plaintiff never completed the LDC course. On July 6, 2024, a course leader
received reports that Plaintiff had used a racial slur and also had demeaned another trainee based
on a purported disability. On July 8, 2024—two days before the training course ended—an LDC
official suspended Plaintiff from the course. An investigator with the Coast Guard interviewed 10
Officer Candidates (OCs) in the course, including Plaintiff, and two course leaders. Only one OC
reported hearing Plaintiff utter a racial slur. In contrast, six OCs reported hearing Plaintiff use
derogatory language about another OC’s purported disability. The OCs alleged that multiple OCs
had confronted Plaintiff about his behavior because it interfered with the environment of the
course.
On July 24, 2024, after reviewing this comprehensive investigation, an LDC official
determined that there was insufficient evidence to corroborate the allegation that Plaintiff uttered
a racial slur. However, the official determined that the evidence substantiated the allegation that
Plaintiff had made derogatory comments about another trainee, amounting to harassment. Based
on the finding of harassment, the official began the process to disenroll Plaintiff from the LDC
course. While LDC officials identified Plaintiff’s prior arrests as a possible reason to disenroll
and discharge Plaintiff, they proceeded to disenroll him from the training course based on the
above-referenced harassment. On September 5, 2024, the LDC disenrolled Plaintiff from the
training course. On September 12, 2024, the Coast Guard separated Plaintiff from the service,
with his last date of active duty service listed as July 12, 2024.
Subsequently, Plaintiff repeatedly challenged his disenrollment and suspension. On
February 19, 2025, the Coast Guard denied Plaintiff’s administrative appeal. On July 24, 2025,
the Coast Guard again defended the investigation, disenrollment, and separation in a written
statement after receiving congressional correspondence regarding Plaintiff’s separation.
2
Plaintiff seeks another review of his case in this Court. Here, Plaintiff argues (i) that the
Coast Guard’s actions were arbitrary and capricious because the Coast Guard offered inconsistent
explanations for the disenrollment and separation, (ii) that the record does not contain substantial
evidence of harassment, (iii) that the scope of the investigation improperly expanded, (iv) that the
evidence uncovered in the investigation does not meet the Coast Guard’s definition of harassment,
(v) that the Coast Guard denied Plaintiff an opportunity to respond, and (vi) that Plaintiff remains
entitled to active duty pay. Plaintiff and Defendant have each moved for judgment on the
administrative record.
For the reasons stated below, the Court DENIES Plaintiff’s Corrected Motion for
Judgment on the Administrative Record (ECF No. 15). The Court GRANTS Defendant’s CrossMotion for Judgment on the Administrative Record (ECF No. 16). After thoroughly reviewing
the record, the Court holds that the Coast Guard’s decision was supported by substantial evidence
and was not arbitrary and capricious, that any procedural errors were harmless, and that Plaintiff
is not entitled to continued active duty pay.
BACKGROUND
I. Commencement of the Investigation into Plaintiff’s Behavior
Plaintiff entered the Coast Guard training program on June 5, 2024. AR 42. 2 On July 6,
2024, Assistant Course Chief C.R. 3 filed a “Report of Harassment, Hate, Bullying, Hazing,
2
Citations to the AR refer to the Corrected Administrative Record (ECF No. 11). Citations throughout this Memorandum and Order correspond to the ECF-assigned page numbers, which do not always correspond to the pagination within the document.
3
Defendant submitted a redacted version of the AR, so that witnesses and most individuals involved in the investigation are identified only by their initials. ECF No. 11. In the cross-Motions for Judgment on the Administrative Record, the parties refer to people by their initials, as identified in the AR, and have not otherwise objected to the use of initials. See, e.g., Pl. MJAR at 7; Def. MJAR at 7.
3
Misconduct, or Other Disruptive Behaviors” concerning Plaintiff. AR 99. Assistant Course Chief
C.R. “was made aware of a series of incidents involving [Officer Candidate (OC)] Rosene,” earlier
that day. Id. The alleged behavior, which Assistant Course Chief C.R. learned of “from direct
witnesses,” included several comments from Rosene directed at OC K, another member of
Plaintiff’s training class: “[w]hy are we listening to this re*tard,” “K is an undiagnosed autistic,”
and “[w]hat a re*tard.” Id. Assistant Course Chief C.R.’s report stated that Plaintiffs “was
confronted multiple times by various OCs . . . and demanded to stop. The behavior continued and
may have even intensified.” Id.
Assistant Course Chief C.R.’s report stated that Plaintiff had allegedly engaged in other
disruptive behaviors. Id. The report noted that “OC Rosene recently commented on the swim test
failure for two black OCs.” Id. Plaintiff “was heard stating out-loud to another OC that ‘it is funny
that the two that failed the swim test are n[****]rs.’” Id. Finally, Plaintiff’s behavior toward his
wife raised concerns among other OCs and Assistant Course Chief C.R.:
OC Rosene has been overheard by multiple OCs yelling at his wife most nights on
the phone, calling her ‘stupid’ and ‘dumb’[] and berating her verbally. As soon as
he would hang up the phone, he would continue his rant about his spouse to other
OCs in his vicinity. OC Rosene also may have disclosed to another OC that he is
in thousands of dollars of sports gambling debt. The report to [Assistant Course
Chief C.R.] raised serious concern about use of alcohol and judgment as well as
bullying and racism.
Id.
On July 8, 2024, the LDC, which ran Plaintiff’s course, convened a “single-officer,
standard investigation” into whether Plaintiff “engaged in prohibited language.” AR 97. The LDC
charged Investigating Officer N.T. with the investigation and directed N.T. to consult with Judge
Advocate A.M., of Coast Guard Legal Service Command, “before beginning the investigation and
during it if you need assistance.” Id. Investigating Officer N.T. was specifically charged with
4
determining “whether OC Rosene made a hate incident, and used prohibited language towards OC
K.” Id.
On July 8, 2024, the same date the LDC began the investigation into Plaintiff’s comments,
the Coast Guard suspended Plaintiff from his training program:
Due to an ongoing investigation, you are being suspended in training from Reserve
Officer Candidate Indoctrination. You are being advised that Reserve Officer
Candidate Indoctrination is required for commission in the U.S. Coast Guard
Reserves.
AR 82. Plaintiff signed the form informing him of his suspension and initialed his
acknowledgement.” Id.
II. Investigating Officer N.T.’s Investigation
Investigating Officer N.T. interviewed ten OCs, including Plaintiff. AR 46–47. N.T. also
interviewed Course Chief A.M. and procured a written statement from Assistant Course Chief
C.R. AR 47.
On July 9, 2024, at the time of Plaintiff’s interview, N.T. presented Plaintiff with a form
informing him of his Miranda rights and his rights under the Uniform Code of Military Justice.
AR 84–85 (form signed at 4:17 p.m.); see also AR 64 (interview beginning at 4:17 p.m.). The
form informed Plaintiff that he was under investigation for “making racially charged comments
regarding two Officer Candidates and of making comments regarding an Officer Candidate’s
alleged disability, which are contrary to our core values.” AR 84. Plaintiff signed his initials next
to each of five statements informing him of his rights, including his right to remain silent and his
right to consult with an attorney before answering any questions. AR 85. Plaintiff checked a box
expressing his “desire to make a statement and/or answer any questions.” Id. Plaintiff also signed
his name on the form informing him of his rights. Id.
5
In his July 9, 2024, interview with N.T., Plaintiff “categorically denied” that he had uttered
a racial slur and claimed that “that word is not in my vocabulary.” AR 64. Plaintiff stated that he
had never said that OC K had a disability: “he said he had heard several other people who
mentioned “[OC K] may have a mental disability, but he never disparaged him.” Id. Plaintiff
stated that he has an autistic brother and “might have said something like ‘yeah that’s a symptom”
when other OCs brought up OC K’s alleged disability. Id. Plaintiff named seven other OCs who,
he alleged, had previously said that OC K had a disability. Id. On July 15, 2024, Plaintiff also
sent a letter to N.T., in which Plaintiff accused his roommate, OC W, of making the accusation
that began the investigation, and suggested that OC W himself might have engaged in harassing
behavior. AR 68. Plaintiff stated that OC W described himself as “quite good at reporting possible
infractions to the chain of command, which might result in disciplinary action.” Id. Plaintiff wrote
that “[a] self-proclaimed whistleblower may believe he or she will acquire greater respect from
their seniors by reporting and/or gain a sense of power by manipulating situations without regard
to the harm of the individual.” Id.
According to N.T.’s investigation, OC W was the only witness who reported hearing
Plaintiff use “the N word” firsthand. AR 48, 54. According to N.T.’s interview notes, OC W
stated that “OC Rosene implied that [two OCs] didn’t pass the swim test because they were black.”
AR 54. N.T. then asked OC W about Plaintiff’s utterance of a racial slur:
I asked if he witnessed OC Rosene using the N word and he said “Yes.” In their
barracks room OC Rosene was talking about OC D and OC B and their failure in
the swim test: “It’s no surprise that the two people that failed the swim test were
n****rs.” OC W said that when he said “were n****rs” OC Rosene said it under
his breath, and he didn’t say it with hatred or intent.
Id. OC W alleged that another roommate, OC Kl, was in the barracks room when Plaintiff
allegedly used a racial slur. AR 48. However, OC Kl did “not recall OC Rosene ever using the N
6
word, nor does he recall any conversation regarding their black shipmates, the swim test or other
OCs who were not meeting the standard.” AR 48, 57.
In contrast, six OCs told N.T. that they heard Plaintiff refer to OC K as disabled or
otherwise demean OC K. AR 49. OC M told N.T. that on June 14, 2024, “OC M heard OC Rosene
use the words ‘retard’ and ‘autistic’ to refer to OC K.” AR 49, 52. In particular, “OC M said it
was evident that it wasn’t just a comment, people joke around yes but this was a more directed
comment at OC K.” AR 52. Five OCs “said they heard OC Rosene make fun of OC D at a dinner
in Mystic, CT on or about” July 4, 2024. AR 49. OC W stated that “OC Rosene was drinking
heavily” and said “‘OC K is retarded,’ [and] ‘OC K has the ‘tism.’” AR 54. OC S stated that “OC
Rosene had been throwing back drinks (his shipmates had to cut him off because he had duty the
next day) and started to make comments about OC K being retarded.” AR 56. OC B said that
“[w]hile everyone there might have had two beers over the course of dinner, OC Rosene had like
six” and recounted a similar story as other attendees:
At dinner OC Rosene made repeated comments about OC K saying he should not
be in the program because he does not meet the medical standard. OC B said that
OC Rosene said: he “has the ‘tism,” “It’s obvious.” OC Rosene said this over and
over repeating that he “has the ‘tism” and generally degrading OC K’s character.
AR 58. OC R “recounted that there was a group of guys out at a restaurant and OC Rosene made
some derogatory comments about OC K regarding his mental capacity.” AR 62. OC T “said that
comments were made by OC Rosene against OC K,” so that another OC said “‘[t]his needs to
stop’” and the dinner attendees then cut Plaintiff off from drinking. AR 63.
N.T. did not interview OC K, the target of the alleged harassment. See AR 46–47 (listing
witnesses interviewed). According to her investigation, none of the OCs who heard Plaintiff make
derogatory comments said that they told OC K about the comments. AR 48.
7
During the investigation, Course Chief A.M. “brought three website articles to [N.T.’s]
attention, two of which showed that OC Rosene was arrested on multiple occasions, one time was
for impersonating a police officer. The third website listed a debt collection case against OC
Rosene.” AR 50. N.T. included a copy of an online article, dated September 1, 2015, in the
investigation exhibits, which stated that a “Joshua R. Rosene” was arrested in Prince William
County, Virginia, for impersonating a police officer. AR 70–71. N.T. included a copy of a page
from “arrests.org,” which stated that a “Joshua Robert Rosene” was arrested in Virginia on
December 19, 2022, on charges of obstruction of justice and resisting arrest. AR 76. N.T. also
included a printout of a website recording a debt collection lawsuit against Joshua Rosene in a
Virginia state court, which was filed on March 4, 2022. AR 79.
The AR also includes a copy of a criminal history generated by the Department of
Homeland Security on July 10, 2024, which has no apparent link to Plaintiff or the investigation
into his conduct. AR 37. The criminal history covers the arrests in Florida of a “Joshua John
Rankin-Rosenberg.” AR 38. The criminal record displays several charges, including possession
of cocaine, possession of marijuana, and tampering with physical evidence, arising from a May
10, 2017, arrest. AR 38–40. This criminal history is for someone with a different name than
Plaintiff, whose arrest took place in a different state than Plaintiff’s alleged arrests. Compare AR
38 (arrest of Joshua John Rankin-Rosenberg in Florida), with AR 76 (arrest of Joshua Robert
Rosene in Virginia). The criminal history was not included as an attachment or enclosure in N.T.’s
investigative report. See AR 50–51. Similarly, none of the other documents that the Coast Guard
created during its investigation reference the criminal history of Joshua John Rankin-Rosenberg
or the arrests listed therein. See AR.
8
III. Administrative Action After the Investigation
On July 24, 2024, Captain Robert P. Hill of the LDC sent a memorandum (Final Action
Memo) to Rear Admiral Jeffrey K. Randall of the Coast Guard Force Readiness Command (Force
Readiness Command) concerning the investigation into Plaintiff. AR 44. The Final Action Memo
stated that the report of harassment toward OC K was “substantiated,” while the report of a racial
slur was “unsubstantiated.” Id. Captain Hill wrote that although OC W alleged that Plaintiff had
used a racial slur, “[n]o other member could verify the potential hate incident comments, and the
statements were not consistent; therefore, there was not enough evidence to reach the threshold of
substantiation for the alleged hate incident.” Id. However, the reports of harassment toward OC
K were substantiated because “[s]ix OCs all corroborated that OC Rosene made several
inappropriate comments regarding another OC on both 14 June and 04 July calling [] him ‘retard’
and ‘autistic.’” AR 45. Captain Hill also wrote that the Coast Guard had “confirmed OC Rosene
had 3 arrests including impersonating an officer, assault/brandishing, and DUI.” Id. 4 Captain Hill
found that Plaintiff engaged in “harassing behavior” and may have engaged in “non-disclosure of
arrests.” Id. As a result, Captain Hill concluded “I intend to disenroll OC Rosene, and he will be
[Permanent Change of Station]ed back to [Coast Guard Recruiting Command] for disposition.”
Id.
On August 5, 2024, Captain Hill submitted a discharge recommendation for Plaintiff,
which recommended that Plaintiff “be separated from the Coast Guard with an honorable discharge
4
The AR does not include the underlying Coast Guard Investigative Service report that Captain Hill used to establish Plaintiff’s prior arrests. See AR 45. Captain Hill does not reference or attach the Florida arrest report for Joshua John Rankin-Rosenberg, which is included in the AR and has no apparent link to the investigation. See AR 45. In addition, the arrest report for Joshua John Rankin-Rosenberg does not include the crimes of impersonating a police officer, driving under the influence, or brandishing a weapon, so Captain Hill could not have mistakenly relied upon Joshua John Rankin-Rosenberg’s arrest record for his report. See AR 38–40.
9
by reason of convenience of the government due to erroneous enlistment.” AR 34. Captain Hill
notified Plaintiff of the recommendation of the same day and informed Plaintiff of his rights to
consult with an attorney submit a rebuttal to the discharge recommendation. AR 35.
On September 5, 2024, LDC Instructor K.H. informed Plaintiff of his disenrollment from
the LDC “after an erroneous enlistment and an investigation determined you had made prohibited
comments.” AR 43. A Record of Disenrollment Form (DD Form 785) stated that Plaintiff was
disenrolled from training “due to an erroneous enlistment.” AR 42. The form noted that if training
had been completed successfully, Plaintiff would have commissioned on July 10, 2024. Id.
On September 12, 2024, the Coast Guard generated a Separation Authorization, which
separated Plaintiff from the Coast Guard at the “Convenience of the Government,” due to a
“[f]ailure to complete commissioning or warrant program.” AR 41. The effective date of the
Separation Authorization was listed as July 12, 2024. Id.
IV. Plaintiff’s Appeal and Congressional Correspondence
On October 9, 2024, Plaintiff appealed the determination of harassing behavior to Force
Readiness Command. AR 14. Plaintiff appealed “on the basis that the convening authority
incorrectly applied policy or disregarded/inappropriately weighed facts. It is also submitted based
upon procedural error and non-compliance with mandatory policy requirements.” Id. Plaintiff
argued that the procedure followed during the investigation violated COMDTINST 5350.6, which
is entitled “Harassing Behavior Prevention, Response, and Accountability.” Id.; see also
COMDTINST 5350.6 (Feb. 2023). Plaintiff alleged that the selection of Investigative Officer N.T.
to complete the investigation violated a policy that the investigating officer must not have a
relationship with the alleged perpetrator or witnesses because N.T. was an instructor at the LDC
who knew the witnesses prior to the investigation. AR 15–16. As in his interview during the
10
investigation, Plaintiff stated that his brother is autistic, so that he would not make derogatory
comments about anyone due to their suspected autism. AR 19.
On February 19, 2025, a Force Readiness Command official, Jennifer Sinclair, denied
Plaintiff’s appeal. AR 9. Sinclair wrote that she evaluated the appeal “based on whether the
convening authority incorrectly applied policy, inappropriately weighed facts, and/or failed to
consider evidence.” Id. Sinclair wrote that she upheld the investigation with the following
explanation:
After careful consideration of your appeal, the underlying investigation, and the
convening authority’s final action memorandum, and in consultation with legal
counsel, I find the convening authority properly adhered to all applicable policies
and directives and appropriately considered all available relevant facts surrounding
the harassing behavior.
Id.
On June 19, 2025, Plaintiff submitted a message to a Congressman, Representative John
McGuire, III, through an online portal on Representative McGuire’s site. AR 7–8. Plaintiff wrote
that he “was summarily disenrolled and kicked out of the [United States Coast Guard] under the
former Administration’s vague and woke [Anti-Harassment and Hate Incident] policy and denied
my commission [with] no due process.” AR 8. On July 24, 2025, in response to a June 20, 2025,
communication from Representative McGuire, the Coast Guard sent Representative McGuire a
letter and wrote that Plaintiff’s actions constituted “unwelcome verbal conduct that has the effect
of unreasonably interfering with an individual’s work performance.” AR 5. The Coast Guard’s
response stated that “[t]he initial claims of fraudulent enlistment were investigated and found to
be unsupported.” AR 5. The AR contains no further information concerning the Congressman’s
inquiry into Plaintiff’s separation. See AR.
11
PROCEDURAL HISTORY
On November 3, 2025, Plaintiff filed his Complaint. ECF No. 1 (Complaint). On February
6, 2026, Defendant filed the Administrative Record with the Court. ECF No. 9. On February 11,
2026, the Court entered a Scheduling Order, setting a briefing schedule for cross-motions for
judgment on the administrative record, as well as the filing of a corrected administrative record.
ECF No. 10 at 1. On February 13, 2026, Defendant filed a Corrected Administrative Record. ECF
No. 11 (AR).
On March 16, 2026, Plaintiff filed his original Motion for Judgment on the Administrative
Record. ECF No. 13. On March 17, 2026, Plaintiff filed a Motion to Strike and Refile Motion for
Judgment on the Administrative Record, along with his Corrected Motion for Judgment on the
Administrative Record. ECF Nos. 14 (Motion to Strike and Refile); 15 (Pl. MJAR). On March
23, 2026, the Court struck Plaintiff’s original Motion for Judgment on the Administrative Record
and granted leave for Plaintiff to file his Corrected Motion for Judgment on the Administrative
Record. Minute Order dated Mar. 23, 2026.
On April 16, 2026, Defendant filed its Cross-Motion for Judgment on the Administrative
Record and Response to Plaintiff’s MJAR. ECF No. 16 (Def. MJAR) (collectively, with Pl.
MJAR, the cross-MJARs). On April 30, 2026, Plaintiff filed his Reply in support of his MJAR
and Response to Defendant’s MJAR. ECF No. 17 (Pl. Reply). On May 14, 2026, Defendant filed
its Reply in support of its MJAR. ECF No. 18 (Def. Reply).
On June 5, 2026, the Court scheduled an in-person oral argument on the cross-MJARs at
the Court of Federal Claims in Washington, D.C., for July 15, 2026. Minute Order dated June 5,
2026. Subsequently, Plaintiff’s counsel requested via email with the Court and Defendant’s
Counsel that the Court forgo oral argument due to travel considerations. Email from Jason Perry
12
(June 8, 2026, 1:12 p.m. EDT). Accordingly, on consent of the movant, the Court canceled oral
argument on July 13, 2026. Minute Order dated July 13, 2026.
The cross-MJARs are fully briefed and ripe for review.
APPLICABLE LEGAL STANDARDS
Military pay cases at the Court of Federal Claims are resolved under Rule 52.1(c), which
allows Motions for Judgment on the Administrative Record. Rules 52.1(c), App. K. ¶ 4. A Motion
for Judgment on the Administrative Record provides an expedited trial on a “paper record,
allowing fact-finding by the trial court.” Bannum, Inc. v. United States, 404 F.3d 1346, 1356 (Fed.
Cir. 2005) (referencing Rule 56.1, which was replaced by Rule 52.1(c)); see Rule 52.1(c). Unlike
at summary judgment, genuine disputes of material fact do not preclude the Court from granting a
motion for judgment on the administrative record. Bannum, 404 F.3d at 1357.
In military pay cases, “judicial review . . . is conducted under the [Administrative
Procedure Act (APA).” 5 Walls v. United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009); see 5 U.S.C.
§ 706(2). Under this standard, the Court must determine whether the military’s decision “is
arbitrary, capricious, contrary to law, or unsupported by substantial evidence.” Barnick v. United
States, 591 F.3d 1372, 1377 (Fed. Cir. 2010); see Porter v. United States, 163 F.3d 1304, 1312
(Fed. Cir. 1998). The plaintiff must show such a violation of this standard by “cogent and clearly
convincing evidence.” Stine v. United States, 92 Fed. Cl. 776, 791 (2010), aff’d, 417 F. App’x 979
(Fed. Cir. 2011) (quoting Kirwin v. United States, 23 Cl. Ct. 497, 503 (1991)).
5
Although Plaintiff does not challenge the decision of a military correction board in this case, each party cites cases that challenged a correction board’s decision for the legal standard that applies here. Pl. MJAR at 13; Def. MJAR at 10. Neither party disputes that the arbitrary and capricious standard that applies to the review of a military corrections board’s decision also applies in this case. See Pl. MJAR at 13; Def. MJAR at 10.
13
The Court considers whether the “agency provided a coherent and reasonable explanation
of its exercise of discretion.” Dell Fed. Sys., L.P. v. United States, 906 F.3d 982, 992 (Fed. Cir.
2018) (quoting Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1351 (Fed. Cir.
2004)). Still, this Court does not serve as a “super correction board.” Van Cleave v. United States,
70 Fed. Cl. 674, 678 (2006) (quoting Skinner v. United States, 594 F.2d 824, 830 (Ct. Cl. 1979)).
“[T]he standard of review does not require a reweighing of the evidence, but a determination
whether the conclusion being reviewed is supported by substantial evidence.” Heisig v. United
States, 719 F.2d 1153, 1157 (Fed. Cir. 1983) (emphasis in original). “Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Strand
v. United States, 951 F.3d 1347, 1351 (Fed. Cir. 2020) (quoting Consol. Edison Co. of NY v. NLRB,
305 U.S. 197, 229 (1938)). That is, the Court may not substitute its judgment for that of the
military because “responsibility for determining who is fit or unfit to serve in the armed services
is not a judicial province.” Stine, 92 Fed. Cl. at 791 (quoting Heisig, 719 F.2d at 1156). The Court
is restricted to evaluating whether the military has done its duty in examining all relevant evidence
and making reasoned determinations. See id.
If the military “entirely failed to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the product of agency expertise,” then the
Court must overturn the military’s decision. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983); see Ala. Aircraft Indus., Inc.-Birmingham v. United States, 586
F.3d 1372, 1375 (Fed. Cir. 2009); Adams v. United States, 117 Fed. Cl. 628, 654 (2014). Similarly,
the military must explain inconsistencies in its reasoning when it reaches contradictory conclusions
based on the same evidence. Draper v. United States, 163 Fed. Cl. 284, 292–93 (2022) (“While
14
the Government’s argument is certainly plausible, ‘an agency cannot simply adopt inconsistent
positions without presenting some reasoned analysis.’” (quoting Quinton v. United States, 64 Fed.
Cl. 118, 129 (2005))). However, the Court will “uphold a decision of less than ideal clarity if the
agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys.,
Inc., 419 U.S. 281, 286 (1974); Viernes v. United States, No. 25-117, 2026 WL 2236972, at *8
(Fed. Cl. July 31, 2026).
In military pay cases, the Court applies the “strong, but rebuttable, presumption that
administrators of the military, like other public officers, discharge their duties correctly, lawfully,
and in good faith.” Doe v. United States, 132 F.3d 1430, 1434 (Fed. Cir. 1997) (quoting Sanders
v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979)). “Judicial deference must be ‘at its apogee’ in
matters pertaining to the military and national defense.” Voge v. United States, 844 F.2d 776, 779
(Fed. Cir. 1988) (quoting Rostker v. Goldberg, 453 U.S. 57, 70 (1981)); see Kelly v. United States,
179 Fed. Cl. 313, 322 (2026). The Court “may not substitute its judgment for that of the agency,
but instead must confine itself to ensuring that the agency remained ‘within the bounds of reasoned
decisionmaking.’” Sharpe v. United States, 935 F.3d 1352, 1358 (Fed. Cir. 2019) (cleaned up)
(quoting Dep’t of Commerce v. New York, 588 U.S. 752, 773 (2019)). Even if a plaintiff identifies
an error in the military’s reasoning, though, the plaintiff must still establish that the error was not
harmless. Christian v. United States, 337 F.3d 1338, 1343 (Fed. Cir. 2003) (“This court and its
predecessor court have applied the harmless error analysis to military back pay cases.”); see Kelly,
179 Fed. Cl. at 322.
DISCUSSION
Plaintiff argues that the Coast Guard’s disenrollment and separation decisions were
arbitrary, capricious, contrary to law, and unsupported by substantial evidence based on five
15
arguments. Pl. MJAR at 14. Plaintiff also argues that the Coast Guard “did not lawfully discharge”
him, so “he therefore remains entitled to pay and allowances under the Military Pay Act.” Id. at
22.
Defendant argues that the disenrollment and separation decisions were supported by
substantial evidence and were not arbitrary, capricious, or contrary to law. Def. MJAR at 12.
Defendant also argues that Plaintiff is ineligible for pay and allowances under the Military Pay
Act. Def. MJAR at 19.
I. Disenrollment and Separation Decisions
Plaintiff makes five arguments against the Coast Guard’s disenrollment and separation
decisions based on offensive remarks about another OC. Pl. MJAR at 14–22. First, Plaintiff
argues that the decisions were arbitrary and capricious because “the Coast Guard never maintained
a consistent explanation” of what the investigation revealed and why it justified Plaintiff’s
disenrollment. Id. at 15. Second, Plaintiff argues that the investigation “overstates the evidence”
and “did not account for contrary evidence.” Id. at 17. Third, Plaintiff argues that N.T.’s
investigation 6 improperly exceeded its authorized scope. Id. at 18–19. Fourth, Plaintiff argues
that “[t]he Coast Guard did not apply the governing harassment standard to the facts in the record.”
Id. at 19. Fifth, Plaintiff argues that the Coast Guard never provided him “any meaningful
opportunity to respond” to the accusations against him. Id. at 21.
Defendant opposes Plaintiff’s arguments. Def. MJAR at 12. Defendant argues that
Plaintiff cannot identify prejudicial error in the Coast Guard’s inconsistent explanations. Id. at 17.
Defendant argues that the Coast Guard properly weighed conflicting evidence in the record and
6
Unlike in his administrative appeal to Force Readiness Command, see AR 15–16, Plaintiff does not argue in this case that N.T. was improperly appointed to investigate the alleged harassing remarks. See Pl. MJAR at 18–19.
16
reached a decision based on substantial evidence. Id. at 16. Defendant contends that “Mr.
Rosene’s argument that the convening order limited the scope of the investigation is unfounded.”
Id. at 15. Defendant argues that Plaintiff’s comments about OC K qualified as harassment under
Coast Guard policy. Id. at 14. Finally, Defendant argues that the Coast Guard provided Plaintiff
with the procedural rights to which he was entitled, such as the opportunity to submit a written
statement and to consult with an attorney. Id. at 19.
A. Allegedly Inconsistent Explanations for Disenrollment
Plaintiff argues that the Coast Guard’s disenrollment decision was arbitrary because “the
Coast Guard never maintained a consistent explanation of what it found, why those findings
mattered, and how they justified the specific personnel action imposed.” Pl. MJAR at 15. Plaintiff
contends that there is no “coherent path from the investigation the Coast Guard authorized to the
disposition it ultimately imposed” because Captain Hill’s Final Action Memo cited harassment as
the reason for disenrollment, but later paperwork cited erroneous enlistment in addition to
harassment. Id. (“An agency acts arbitrarily when it does not articulate a rational connection
between the facts found and the choice made.”). Defendant asserts that the Coast Guard considered
erroneous enlistment but ultimately did not make a determination on that basis, so Plaintiff cannot
demonstrate that any mention of erroneous enlistment prejudiced him. Def. MJAR at 17; Def.
Reply at 10–11.
Military agencies act in an arbitrary and capricious manner if they “simply adopt
inconsistent positions without presenting some reasoned analysis.” Draper, 163 Fed. Cl. at 292
(quoting Quinton, 64 Fed. Cl. at 129). In Draper, the Secretary of the Air Force had taken two
contradictory positions on the same servicemember’s performance based on the same evidence:
the Secretary of the Air Force decided that the servicemember, a colonel, was eligible for
17
promotion to brigadier general for good performance but also decided that the servicemember
could be retired and demoted to lieutenant colonel for unsatisfactory performance. Id. Where the
“conclusions somewhat conflict,” the agency had to provide “reasoned analysis and explanation”
for why the same evidence could lead to seemingly contradictory results in two different decisions.
Id.
In Plaintiff’s case, in contrast, the Coast Guard did not make the same seemingly
contradictory decisions, and any conflict is explained in the record. The references to “erroneous
enlistment” in documents related to Plaintiff’s disenrollment from the LDC do not render the Coast
Guard’s actions arbitrary for inconsistency. See AR 43 (listing “erroneous enlistment” and
“prohibited comments” as reason for disenrollment). During the course of her investigation, N.T.
learned of Plaintiff’s prior arrests and the alleged debt collection lawsuit against Plaintiff. AR 50.
After the investigation, Captain Hill of the LDC wrote that “there may be non-disclosure of arrests
in OC Rosene’s [Reserve Officer Candidate Indoctrination] application package.” AR 45. Captain
Hill’s memo is clear that he planned to disenroll Plaintiff due to the harassment. Id. Captain Hill
was clear that his only finding was that “OC Rosene did engage in harassing behavior.” Id. In
contrast, Captain Hill wrote that “there may be” non-disclosure problems that could lead to
erroneous enlistment; the conditional language indicates that Captain Hill suggested an additional
basis on which the Coast Guard might discharge Plaintiff. Id. Unlike in Draper, where there were
conflicting decisions because the agency stated that a servicemember both deserved a promotion
and a demotion, here the possibility of an erroneous enlistment due to a criminal record was, at
most, an additional reason to remove Plaintiff from the Coast Guard, which did not conflict with
the finding that Plaintiff’s behavior at LDC constituted harassment. See Draper, 163 Fed. Cl. at
292; AR 45.
18
The Coast Guard consistently maintained that harassment was a basis for Plaintiff’s
disenrollment, and that this disenrollment justified the separation decision as it caused Plaintiff’s
“[f]ailure to complete commissioning or warrant program.” AR 41. Plaintiff failed to complete
his commissioning program because the LDC suspended and then disenrolled Plaintiff from the
commissioning program. See AR 43 (disenrolling Plaintiff due to “prohibited comments” and
suspected “erroneous enlistment”), 82. The LDC suspended Plaintiff “[d]ue to an ongoing
investigation.” AR 82. Allegations of harassment and hate speech sparked that investigation. AR
97. After that investigation, the LDC determined that “[t]he alleged harassing behavior is
substantiated.” AR 44 (emphasis in original). The LDC determined that the harassment
allegation was substantiated because Plaintiff made prohibited comments: “OC Rosene made
several inappropriate comments regarding another OC on both 14 June and 04 July calling [] him
‘retard’ and ‘autistic.’” AR 45. In addition, Captain Hill’s Final Action Memo stated that “[t]he
aggrieved party will be notified in writing of the disposition of the investigation” and concludes
with a statement that “all Coast Guard personnel shall be treated with respect.” AR 45. These
statements only make sense if the harassment was a basis for disenrollment, as an erroneous
enlistment would not involve any aggrieved parties or disrespect for other personnel. See id. The
LDC subsequently disenrolled Plaintiff from the commissioning program because “an
investigation determined you had made prohibited comments,” and the LDC listed “erroneous
enlistment” as an additional reason for disenrollment. AR 43. After the separation, the Coast
Guard explained that Plaintiff’s comments constituted harassment because it was “unwelcomed
verbal conduct that has the effect of unreasonably interfering with an individual’s work
performance.” AR 5. Thus, throughout and after the suspension, investigation, disenrollment, and
separation, the Coast Guard consistently maintained that the harassment served as a sufficient basis
19
for Plaintiff’s dismissal. Plaintiff’s harassment was the reason that he never completed the course
at LDC, and his failure to complete the course led to the separation. AR 41. As the Coast Guard’s
“path may reasonably be discerned” in determining that Plaintiff harassed another CO and
disenrolling Plaintiff for harassment, the Court must uphold the Coast Guard’s actions. See
Bowman Transp., 419 U.S. at 286.
The AR does not explain why the LDC listed only “erroneous enlistment” as the
justification on a form recording Plaintiff’s disenrollment. See AR 42 (“Member is being
disenrolled . . . due to an erroneous enlistment.”). 7 However, to the extent that these references to
erroneous enlistment constitute conflicting explanations by the Coast Guard, it is a harmless error
because the Coast Guard later clarified that Plaintiff was disenrolled and separated solely on the
basis of the harassment uncovered during the investigation. AR 5, 9. Under the APA standard, an
error in an interim agency document is not prejudicial if the agency identifies a proper basis for its
actions by its final decision, and here the record demonstrates that the Coast Guard approved the
disenrollment based on harassment and separated Plaintiff based on his failure to complete
training. WellPoint Mil. Care Corp. v. United States, 953 F.3d 1373, 1380 (Fed. Cir. 2020) (“[W]e
7
Similarly, Captain Hill wrote in a Notification of Intent to Discharge that he “initiated action to discharge” Plaintiff on the basis of “erroneous enlistment.” AR 35. The Notification of Intent to Discharge is separate from the Final Action Memo, which approved disenrollment based on harassment. Compare id., with AR 45. The reliance upon erroneous enlistment in the Notification of Intent to Discharge cannot have prejudiced Plaintiff because, as the record makes clear, the LDC (where Captain Hill worked) had the power to disenroll Plaintiff, but another office in the Coast Guard (Personnel Service Center Reserve Personnel Management Division (PSC-RPM)) made the discharge and separation decision. AR 41 (“This separation action has been authorized pursuant to [Coast Guard] PSC-RPM decision.”), 43 (“[A] determination will be made as to your disposition with the Personnel Service Center Reserve Personnel Management Division.”). The Notification of Intent to Discharge itself acknowledged that it was only a recommendation, and that “[t]he decision on your discharge and type of discharge” would be made by PSC-RPM. AR 35. PSC-RPM did not follow Captain Hill’s recommendation because it authorized Plaintiff’s separation based only on “[f]ailure to complete commissioning or warrant program.” AR 41.
20
need not be concerned with errors in the interim reports . . . unless they were carried forward to
the [] final decision.”). After Plaintiff appealed his disenrollment, the Coast Guard sustained the
disenrollment exclusively on the basis of the “harassing behavior” that was uncovered during the
investigation, which demonstrates that Plaintiff would have been disenrolled even without the
mention of the erroneous enlistment. AR 9. The Coast Guard separated Plaintiff due to his
“[f]ailure to complete commissioning . . . program,” which was caused by the harassment
investigation. AR 41. In response to the Congressman’s communication, as well, the Coast Guard
also explained that the disenrollment and separation were undertaken on the basis of Plaintiff’s
“unwelcome[e] verbal conduct,” rather than erroneous enlistment. AR 5. As the Coast Guard
maintained a consistent explanation for the disenrollment and subsequent separation caused by the
findings of harassment, and any error introduced by references to erroneous enlistment was not
prejudicial, the disenrollment and separation decisions were not arbitrary. See Sargisson v. United
States, 913 F.2d 918, 923 (Fed. Cir. 1990) (denying plaintiff’s military pay claim when evidence
in the record demonstrated that “he could not have been prejudiced” by alleged error).
B. Evidence of Harassment
Plaintiff argues that the Coast Guard failed to fully consider the evidence before it when it
made its decision. Pl. MJAR at 16–17. In particular, Plaintiff argues that the “Final Action
Memorandum’s categorical statement that ‘six OCs’ corroborated that Mr. Rosene called OC K
‘retard’ and ‘autistic’ on both dates therefore goes beyond what the underlying summaries actually
show.” Id. at 17. Defendant argues that the Coast Guard properly weighed evidence in the record.
Def. MJAR at 16.
The record contains substantial evidence to support the Final Action Memo’s finding that
Plaintiff “engage[d] in harassing behavior” by making derisive comments about OC K. See
21
Strand, 951 F.3d at 1351 (“Substantial evidence is ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” (quoting Consol. Edison, 305 U.S. at 229));
AR 45. In Strand, the Court of Appeals for the Federal Circuit (Federal Circuit) held that a military
department’s denial of service credit was supported by substantial evidence because the deciding
official undertook a “thorough consideration” of situation based on “a broad review” of the record.
Strand, 951 F.3d at 1351, 1354. Substantial evidence supported the decision even though the
deciding official “weighed certain aspects of the record differently” than other officials and the
plaintiff did. Id. at 1356. In particular, the deciding official’s alleged “insufficient consideration”
of countervailing evidence when justifying the decision did not render the decision unsupported
by substantial evidence. Id. Here, Plaintiff merely weighs evidence in the record differently than
the Coast Guard, as Plaintiff argues “little or no real engagement” with “contrary evidence” renders
the Final Action Memo unlawful. Pl. MJAR at 17. To the contrary, the lack of a specific mention
of Plaintiff’s own denials and the OCs who never heard Plaintiff use offensive language does not
mean that Captain Hill lacked sufficient evidence for the Final Action Memo. AR 45; see Strand,
951 F.3d at 1356. Rather, Captain Hill wrote in the Final Action Memo that Plaintiff engaged in
harassing behavior because, as the record before Captain Hill reflected, six direct witnesses told
an investigator that Plaintiff engaged in such behavior. AR 45 (referencing N.T.’s investigation
for evidence of harassing behavior), 48–49 (N.T.’s investigation recording accounts of six direct
witnesses to harassing behavior). Direct accounts from six of Plaintiff’s colleagues, including five
witnesses to the same dinner, that all recounted the use of slurs and demeaning language directed
at another OC is “such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Strand, 951 F.3d at 1351 (quoting Consol. Edison, 305 U.S. at 229). This Court is
not empowered to re-weigh the evidence before Captain Hill where substantial evidence supports
22
his determination. See Heisig, 719 F.2d at 1157; Sharpe, 935 F.3d at 1359 (“We may not substitute
our judgment for that of [the agency], but instead must confine ourselves to ensuring that [it]
remained ‘within the bounds of reasoned decisionmaking.’” (quoting Dep’t of Commerce, 588
U.S. at 773)); AR 45.
Captain Hill’s Final Action Memo also reflects a full consideration of the conflicting
evidence. Plaintiff quotes Valles-Prieto v. United States, 159 Fed. Cl. 611, 618 (2022), for the
proposition that an action lacks substantial evidence if an agency “cherry-pick[s]” or “fail[s] to
consider the entire record.” Pl. MJAR at 13. To the extent that Valles-Prieto is persuasive, it does
not apply to this case. There, a military board wrote that a plaintiff “failed to provide any evidence”
supporting a fact, even though the plaintiff had provided some evidence. Valles-Prieto, 159 Fed.
Cl. at 617 (emphasis in original). The military’s statement that a plaintiff failed to provide any
evidence supporting a fact when he actually provided such evidence revealed that the military
board had failed to consider the evidence in the record. See id. at 617–18.
Here, in contrast, both N.T.’s investigation and Captain Hill’s Final Action Memo
following that investigation reflect a consideration of the full record, including consideration of
contrary evidence. N.T.’s investigation into Plaintiff’s comments explicitly presents evidence
from a range of sources favorable and not favorable to Plaintiff, which establishes that N.T.
considered contrary evidence. See Mazarji v. United States, 164 Fed. Cl. 298, 311 (2023) (holding
that military board did not cherry-pick record evidence when board decision “explicitly lists”
contrary evidence it considered). For example, N.T.’s investigative report included both OC W’s
allegation that Plaintiff used a racial slur and Plaintiff’s former roommate OC Kl’s testimony that
he never heard Plaintiff utter the word. AR 48. Similarly, N.T.’s investigative report included
detailed descriptions of what she learned from six witness interviews about Plaintiff’s alleged
23
harassment of OC K, along with Plaintiff’s denial that he had ever made the comments. AR 48–
50. N.T. recounts OC M’s allegation that Plaintiff described OC K as “retard” and “autistic” on
June 14, 2024. AR 49. Plaintiff argues that N.T.’s investigation was flawed because “the
summaries do not present a single uniform account of who heard what, when, and in what exact
terms” at a dinner when the other five witnesses heard Plaintiff disparage OC K. Pl. MJAR at 16.
However, N.T.’s investigative report acknowledges these slight discrepancies about what each
attendee recalled. AR 49–50. Of the five dinner attendees besides Plaintiff, four recounted hearing
Plaintiff make derogatory comments concerning OC K’s metal capacity, and three of the attendees
recalled that Plaintiff used the specific terms “retarded,” “autism,” or “‘tism.” Id. N.T.’s report
acknowledges that the fifth attendee, OC T, did not recall that specific language, but notes that OC
T remembered Plaintiff criticizing OC K to the point that another OC at the table “checked OC
Rosene and said, ‘This needs to stop.’” Id. Furthermore, N.T. included Rosene’s own denials, his
attempts to incriminate someone he suspected to be his accuser, and references to three other OCs
who stated that they “did not witness OC Rosene use any discriminatory language in general or
any negative language about OC K and though OC Rosene was a good guy.” AR 50. Thus, N.T.’s
investigative report considered the entire range of conflicting evidence before the Coast Guard.
See Mazarji, 164 Fed. Cl. at 311.
In his Reply, Plaintiff also quotes Heisig, 719 F.2d at 1157, for the proposition that the
agency must consider “‘all of the competent evidence,’ including evidence that detracts from the
agency’s conclusion.” Pl. Reply at 2. Plaintiff argues that Captain Hill’s Final Action Memo “did
not address” countervailing evidence. Id. In Heisig, the Federal Circuit held that substantial
evidence supported the agency decision where the agency considered the whole record and “there
was evidence both ways.” Heisig, 719 F.3d at 1157. Similarly, here, Captain Hill wrote that he
24
conducted “a thorough review of . . . the enclosed investigative report.” AR 44. Under the
presumption of regularity, the Court presumes that Captain Hill reviewed the entire report, as is
reflected in the Final Action Memo. Doe, 132 F.3d at 1434; AR 44. In addition, the Federal
Circuit has held that a decision that “makes little mention” of countervailing evidence does not
violate the APA standard, as long as substantial evidence supports the decision and the
decisionmaker reviewed the full record. Strand, 951 F.3d at 1356. Here, Captain Hill’s Final
Action Memo meets the APA standard because he reviewed the whole record and made a decision
based on substantial evidence. See id.; AR 44–45.
In addition, Captain Hill clearly considered evidence that contradicted the allegations
against Plaintiff because Captain Hill determined that one of the allegations was unfounded. See
AR 44. Captain Hill found that one allegation (of harassment against OC K) was substantiated,
and that another allegation (of saying a racial slur) was unsubstantiated. Id. The testimony of one
witness supported the allegation that Plaintiff used a racial slur. Id. In order to find that the
allegation of saying a racial slur was unsubstantiated, Captain Hill must have considered and given
credence to the contrary evidence, that “[n]o other member could verify the potential hate
comments, and the statements were not consistent.” Id. Where the Coast Guard considered the
evidence against the investigation and even rejected one of the allegations against him, Plaintiff
cannot establish that the evidence “received less than adequate consideration.” See Heisig, 719
F.2d at 1157; AR 44.
C. Scope of Investigation
Plaintiff argues that N.T.’s “investigation exceeded the scope of the appointment
memorandum” because the appointment memorandum directed an investigation of a hate incident
25
and prohibited language, while N.T.’s report included the website articles about Plaintiff’s arrests
and debt collection lawsuit. Pl. MJAR at 18.8
The appointment memorandum instructed N.T. to “conduct” an investigation “into whether
OC Rosene made a hate incident, and used prohibited language towards OC K.” AR 97. The
appointment memorandum also directed N.T. to “[c]ontact your legal advisor if you discover
additional allegations during your investigation. Your legal advisor will then contact me to amend
the convening order, as appropriate.” AR 98. N.T.’s report states that “Legal Service Command
provided all necessary legal advice and assistance with this case” but does not state whether N.T.
contacted a legal advisor concerning the allegations of Plaintiff’s arrests and debt collection
lawsuit. AR 46. To the extent that N.T. may have violated the instruction to consult with a lawyer
if additional allegations arose, it was harmless error, and insufficient for Plaintiff to sustain his
claims. See Christian, 337 F.3d at 1343 (“This court and its predecessor court have applied
the harmless error analysis to military back pay cases.”). Under harmless error analysis, “even if
the government has considered an impermissible criterion in making a decision adverse to the
plaintiff, it can nonetheless defeat liability by demonstrating that it would have made the same
decision absent the forbidden consideration.” Texas v. Lesage, 528 U.S. 18, 20–21 (1999). Here,
even if N.T. erred by expanding the scope of the investigation, that error was harmless because the
8
Plaintiff also argues that the “investigative packet” included the arrest record from Florida for Joshua John Rankin-Rosenberg, who is not Plaintiff. Pl. MJAR at 18. Plaintiff argues that the “record does not show that the approval authority recognized the mistaken inclusion of another person’s criminal records or excluded that material from consideration.” Id. To the contrary, although the Coast Guard never explains the inclusion of a different person’s arrest report in the AR, it is clear that the LDC did not rely upon this report because Captain Hill’s Final Action Memo lists different crimes committed by Plaintiff than Joshua John Rankin-Rosenberg’s arrest record includes. Compare AR 38–40 (listing Joshua John Rankin-Rosenberg’s arrest and charges for drug possession, tampering with physical evidence, and possession of drug paraphernalia), with AR 45 (Final Action Memo stating that Plaintiff had been arrested for “impersonating an officer, assault/brandishing, and DUI).
26
record demonstrates that the Coast Guard would have disenrolled Plaintiff from the LDC course
based on the harassment alone. See id; AR 5 (stating that Plaintiff was disenrolled and separated
based on “unwelcomed verbal conduct” alone because “[t]he initial claims of fraudulent enlistment
were investigated and found to be unsupported”), 45 (recommending disenrollment based on
harassment and noting possible “non-disclosure of arrests”). As any error regarding the scope of
the investigation was harmless, Plaintiff has not identified a sufficient basis to sustain his claim.
See Christian, 337 F.3d at 1343; Sargisson, 913 F.2d at 923 (holding that plaintiff could not sustain
a military pay claim when “he could not have been prejudiced” by the alleged error).
D. Harassment Standard
Plaintiff argues that his behavior, as determined by the Coast Guard’s investigation, does
not meet the Coast Guard’s standard for harassment. Pl. MJAR at 19. Under Plaintiff’s
interpretation of the relevant regulations, “[i]t is not enough to identify offensive or inappropriate
remarks and stop there.” Id. at 20. Plaintiff argues that the evidence does not meet the harassment
standard because “[t]here is no evidence of interference with OC K’s work performance, and no
evidence that OC K heard the alleged remarks.” Id. Defendant asserts that Plaintiff’s statements
about OC K violated Coast Guard regulations. Def. MJAR at 15. Defendant contends that “the
record demonstrates that Mr. Rosene’s conduct constituted prohibited comments because of its
impact on his classmates.” Def. Reply at 8.
In the Final Action Memo, Captain Hill cited COMDTINST 5350.6, Harassing Behavior,
Prevention, Response, and Accountability, as the policy that Plaintiff violated. AR 44. Captain
Hill determined that Plaintiff engaged in “harassing behavior.” AR 44. Within the version of
27
COMDTINST 5350.6 applicable to Plaintiff’s disenrollment and suspension, 9 “harassing
behavior” includes “harassment.” 10 COMDTINST 5350.6 ¶ 12 (2023). The Coast Guard
regulations defined harassment as follows:
Harassment is unwelcome conduct, whether verbal, nonverbal, or physical, that has
the purpose or effect of unreasonably interfering with an individual’s work
performance or creating an intimidating, offensive, or hostile environment.
Harassment includes conduct—whether or not based on a protected status—that
includes, but is not limited to, race, sex gender, or gender identity (see Appendix
A).
COMDTINST 5350.6 ¶ 12(a) (2023).
Substantial evidence in the record demonstrates that Plaintiff’s behavior was “unwelcome
conduct” that “create[ed] an intimidating, offensive, or hostile environment.” Id.; see AR 45.
According to the interviews in N.T.’s investigation, several of Plaintiff’s fellow trainees told him
that he needed to stop making derogatory comments and that his comments had created an
offensive environment. AR 54 (“OC W . . . became uncomfortable around OC Rosene and didn’t
know how to talk to him and found himself wearing his headphones more.”), 61 (“OC E said that
when people talk about [Plaintiff], they talk about how inappropriate he can be.”). Other trainees
repeatedly felt the need to step in to stop Plaintiff’s behavior. AR 52 (“OC M said, ‘If you don’t
back off K, we are going to have a problem.’ OC S separated them.”), 56 (“OC B stepped in and
told him to cut it out and they got into it.”). The record clearly contains substantial evidence that
9
The 2023 version of COMDTINST 5350.6 was in effect at the time of Plaintiff’s disenrollment and discharge. See AR 48 (quoting the 2023 definition of “[h]arassment”). In November 2025, after Plaintiff was separated from the Coast Guard and had appealed his separation, the Coast Guard released an updated version of the regulation. See COMDTINST 5350.6 (2025); AR 9 (denying Plaintiff’s appeal on Feb. 19, 2025), 41 (authorizing Plaintiff’s separation on Sep. 12, 2024, with an effective date of July 12, 2024).
10
Harassing behavior also includes sexual harassment, hazing and bullying, and retaliation or reprisal. COMDTINST 5350.6 ¶ 12. The Coast Guard investigated Plaintiff’s comments about OC K as harassment and not any other type of harassing behavior. See AR 48.
28
Plaintiff’s “unwelcome conduct” had the effect of creating an “offensive . . . environment” within
the LDC course. See COMDTINST 5350.6 ¶ 12(a) (2023).
Plaintiff argues that his actions do not meet the standard for harassment because “[t]here
is no evidence of interference with OC K’s work performance, and no evidence that OC K heard
the alleged remarks.” Pl. MJAR at 21. The plain text of the regulation does not support Plaintiff’s
argument that the target of the harassment must be aware of the comments in order for them to
constitute harassment. See COMDTINST 5350.6 ¶ 12(a) (2023). To determine whether the term
“harassment” applies even when the subject of the harassment does not learn of demeaning
statements, the Court begins with the text of the Coast Guard regulation. See Southwest Airlines
Co. v. Saxon, 596 U.S. 450, 457 (2022) (“As always, we begin with the text.”); see also Barry v.
McDonough, 101 F.4th 1348, 1352 (Fed. Cir. 2024) (“When interpreting a regulatory provision,
we apply the rules of statutory construction.”). “If the statutory language is plain, [the Court] must
enforce it according to its terms.” King v. Burwell, 576 U.S. 473, 486 (2015). When considering
whether the language is plain, “[the Court] must read the words in their context and with a view to
their place in the overall statutory scheme.” Id. (internal quotation marks and citation omitted);
see also West Virginia v. Env’t Prot. Agency, 597 U.S. 697, 721 (2022). Plaintiff’s argument
contravenes the plain text of the Coast Guard’s harassment definition, under which harassment
includes “conduct . . . that has the purpose or effect of . . . creating an intimidating, offensive, or
hostile environment.” COMDTINST 5350.6 ¶ 12(a) (2023). This definition does not contain any
requirement that the target of the harassment hear or learn of the harassment in order for the
behavior to create an offensive environment. See id. Although the regulation also states that
“conduct . . . that has the purpose or effect of unreasonably interfering with an individual’s work
performance” qualifies as harassment (the portion of the definition that Plaintiff discusses), the
29
two triggers of harassment are separated by an “or.” Id.; see Pl. MJAR at 20 (discussing lack of
interference with OC K’s work performance). The word “or” signifies the disjunctive, so either
conduct “unreasonably interfering with an individual’s work performance” or, separately, conduct
“creating an intimidating, offensive, or hostile environment” can independently trigger the
harassment definition. COMDTINST 5350.6 ¶ 12(a) (2023); see Encino Motorcars, LLC v.
Navarro, 584 U.S. 79, 87 (2018) (“‘[O]r’ is ‘almost always disjunctive.’” (quoting United States
v. Woods, 571 U.S. 31, 45 (2013))). Where the regulation does not create a requirement that the
target of the harassment hear about the harassment or personally have his work affected, the Court
will not engage in judicial engraftment to add a requirement. See Bostock v. Clayton Cnty., 590
U.S. 644, 674 (2020) (“[W]hen the meaning of the statute’s terms is plain, our job is at an end.”).
In addition, Plaintiff’s argument that the Final Action Memo needed to further explain its
reasoning linking the behavior to the harassment standard fails. Plaintiff argues that “[t]he [Final
Action Memo] did not identify whose work performance or environment was affected.” Pl. Reply
at 4. However, the Coast Guard did not need to spell out the link in great detail in this case.
Plaintiff fails to identify any requirement in the regulation or any other source of law that the Final
Action Memo specifically state which type of harassment Plaintiff triggered under the regulation.
See id. Under the APA standard, an agency need not explain every rational link in its deliberative
process as long as a rational basis for the action is apparent from the record. Bowman Transp.,
419 U.S. at 286 (“[W]e will uphold a decision of less than ideal clarity if the agency's path may
reasonably be discerned.”). Here, the Final Action Memo states that Plaintiff engaged in harassing
behavior in violation of COMDTINST 5350.6 when he “made several inappropriate comments
regarding another OC on both 14 June and 04 July calling [] him [both] ‘retard’ and ‘autistic,’”
and the Final Action Memo cites both the anti-harassment policy and N.T.’s investigation. AR
30
44–45. It is readily apparent from this explanation and cited material that Captain Hill connected
the actions identified in the investigation to the definition of harassment. See id. Upon this record,
the Court can determine that the Coast Guard made a rational decision based on the evidence
before it, and the Court can discern the path of the agency’s decision. See Barnick, 591 F.3d at
1377.
E. Opportunity to Respond
Plaintiff argues that “[t]he record does not show that, before final action, Mr. Rosene was
provided the witness summaries, the Investigating Officer’s findings, the arrest and debt materials
later references in the Final Action Memorandum, or any meaningful opportunity to respond
before the decision was finalized.” Pl. MJAR at 21. 11 Defendant argues that “Mr. Rosene’s
separation was consistent with Coast Guard policy and procedure.” Def. MJAR at 18.
Plaintiff fails to cite any authority in the anti-harassment policy, any other regulation, or
any other source of law that required the Coast Guard to provide witness summaries, investigation
findings, or an opportunity to respond before taking final action. See Pl. MJAR at 22. The only
applicable requirement in the anti-harassment policy is that “[a] subject who exercises their right
to appeal a substantiated finding of harassment, bullying or other misconduct under this policy
shall, upon request, be provided with access to a redacted version of the investigative report.”
ALCOAST 282/23 (adding requirement to COMDTINST 5350.6 (2023) on Aug. 3, 2023).
11
In his Reply, Plaintiff for the first time argues that the Coast Guard improperly denied him “notice . . . within five calendar days after finalizing the [Final Action Memo].” Pl. Reply at 7. As Plaintiff did not raise this claim in his MJAR, but only in his Reply, it has been waived. See Newimar S.A. v. United States, 160 Fed. Cl. 97, 124 (2022), aff’d, No. 2022-1949, 2023 WL 8534614 (Fed. Cir. Dec. 11, 2023) (Plaintiff waived arguments “because it did not raise them until its reply brief.”); see also Novosteel SA v. United States, 284 F.3d 1261, 1274 (Fed. Cir. 2002) (“Raising the issue for the first time in a reply brief does not suffice; reply briefs reply to arguments made in the response brief—they do not provide the moving party with a new opportunity to present yet another issue for the court's consideration.” (emphasis in original)).
31
According to the record, the Coast Guard met this requirement: Plaintiff himself acknowledged
that he was “provided an opportunity to review the . . . investigative report,” although he
complained about the level of redactions in the report. AR 11. As the Coast Guard satisfied the
rights that the anti-harassment policy granted Plaintiff and Plaintiff identifies no other source of
law that guaranteed his right to view the relevant materials before the Coast Guard’s final action,
the Court will not disturb the Coast Guard’s actions. See Barnick, 591 F.3d at 1381 (upholding
decision when military followed proper procedure).
II. Entitlement to Active Duty Pay
In addition to his arguments against his disenrollment and separation, Plaintiff argues that
he is entitled to continued active duty pay from the time of his suspension through the present. Pl.
MJAR at 24 (“Because the Coast Guard did not lawfully discharge Mr. Rosene from active duty,
he remains in service and remains entitled to active-duty pay and allowances.”). Defendant argues
that “Mr. Rosene fails to establish that he is entitled to backpay.” Def. MJAR at 20.
“In general, a reservist is entitled to active duty pay only for the period that he is actually
on active duty.” Barnick, 591 F.3d at 1379. A reservist who served on “active duty with an
indefinite service obligation” prior to his illegal separation is entitled to back pay as if he remained
on active duty. Groves v. United States, 47 F.3d 1140, 1145 (Fed. Cir. 1995). However, a reservist
who is not on active duty with an indefinite service obligation or who is on part-time reserve duty
“has no lawful pay claim against the United States for unattended drills or for unperformed training
duty” beyond any existing active duty assignments. Palmer v. United States, 168 F.3d 1310, 1314
(Fed. Cir. 1999).
On July 8, 2024, the Coast Guard suspended Plaintiff from the LDC training course. AR
82. At the time of his suspension, Plaintiff was training to become an officer in the Coast Guard
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Reserves. See id. The record reveals that his last day of active duty was July 12, 2024. 12 AR 41.
The record contains no evidence suggesting that Plaintiff had received any orders that would have
otherwise kept him on active duty past July 12, 2024. See AR. Without any orders for subsequent
active duty, Plaintiff cannot establish that his service in the Coast Guard Reserves would have
entitled him to active duty pay. See Barnick, 591 F.3d at 1379; Palmer, 168 F.3d at 1314. As
such, Plaintiff is not entitled to active duty pay for any date after July 12, 2024. See AR 41. The
record contains no evidence that Plaintiff did not receive the full pay that he was owed for that
time period. See AR. Absent any contrary evidence, the Court presumes that the military properly
discharged its duties to pay Plaintiff. See Doe, 132 F.3d at 1434.
Plaintiff appears to argue that he was never properly discharged because he did not receive
his final paycheck from the Coast Guard. Pl. MJAR at 23 (“He did not receive final pay, or a
substantial part of it, at that time [of his suspension] or afterwards.”); see also 10 U.S.C. § 1168(a)
(“A member of an armed force may not be discharged or released from active duty until . . . his
final pay or a substantial part of that pay, are ready for delivery to him or his next of kin or legal
representative.”). However, Plaintiff provides no evidence that he never received final pay. See
Pl. MJAR at 23 (citing no evidence for claim of lack of pay). The AR contains no evidence that
12
Defendant argues that Plaintiff’s active duty orders were scheduled to end on July 10, 2024. Def. Reply at 14. Defendant cites an exhibit attached to its reply. Id. (citing ECF No. 18-1). The cited document is a travel order, which states that Plaintiff’s short-term duty ends on July 10, 2024. ECF No. 18-1 at 2. However, the Court’s review is limited to the AR, and this document was not included in the AR. See Walls v. United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009) (“[R]eview under the APA is generally limited to the administrative record.”); AgustaWestland N. Am., Inc. v. United States, 880 F.3d 1326, 1331 (Fed. Cir. 2018) (“The purpose of limiting judicial review to the record actually before the agency is to guard against courts using new evidence to ‘convert the “arbitrary and capricious” standard into effectively de novo review.’” (quoting Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009))). If Defendant sought to rely upon additional evidence to establish the date when Plaintiff’s active duty orders were scheduled to end, it should have moved to supplement the AR with this evidence.
33
Plaintiff never received a final paycheck. See AR. Even if the exhibits that Plaintiff attached to
his Complaint were part of the AR, none provide evidence that Plaintiff failed to receive a final
paycheck. See ECF No. 1-1 (Plaintiff’s exhibits). Plaintiff’s “attorney argument” about the lack
of a paycheck is not evidence. Icon Health and Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1043
(Fed. Cir. 2017) (“Attorney argument is not evidence.”); Chromalloy San Diego Corp. v. United
States, 145 Fed. Cl. 708, 744 (2019) (holding that “attorney argument” is insufficient to meet
burden of motion for judgment on the administrative record). As Plaintiff has failed to present
evidence that would prove his claim of an entitlement to continued active duty pay, he has not met
his burden to produce evidence under the Rule 52.1(c) standard, and, absent any evidence, the
Court must presume that the military upheld its obligation to pay him. Stine, 92 Fed. Cl. at 791;
see Bannum, 404 F.3d at 1357 (requiring “record evidence” to prove facts on motion for judgment
on the administrative record); Doe, 132 F.3d at 1434 (applying “strong, but rebuttable,
presumption that administrators of the military, like other public officers, discharge their duties
correctly, lawfully, and in good faith”).
* * * * *
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CONCLUSION
Accordingly, for the reasons stated above, the Court DENIES Plaintiff’s Corrected Motion
for Judgment on the Administrative Record (ECF No. 15). The Court GRANTS Defendant’s
Cross-Motion for Judgment on the Administrative Record (ECF No. 16). The Clerk of Court
is DIRECTED to enter Judgment accordingly and mark this case as closed.
IT IS SO ORDERED.
Eleni M. Roumel
ELENI M. ROUMEL
Judge
September 3, 2026
Washington, D.C.
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