Stewart v. SecNav. One of perhaps many to come in which Jim McPherson is sued in his OFFICIAL capacity.
In this case, Marine Corps Officer Nicholas Stewart challenges the Navy Secretary’s refusal to grant him a waiver of statutory requirements that govern his eligibility for incentive pay as “arbitrary, capricious, . . . or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Aviation career incentive pay (ACIP) is a monthly cash benefit given to certain armed servicemembers who regularly fly aircraft as part of their official duties. See 37 U.S.C. § 301a. As relevant here, to be entitled to ACIP, servicemembers must be assigned flight duties for eight of the first twelve years of their careers, a requirement the parties refer to as a “flight gate.” By statute, the Secretary may waive the flight gate “[f]or the needs of the Service” “so long as the officer has performed” flight duties “for not less than 6 years.” Id. § 301a(a)(5). A Navy regulation, SECNAV Instruction 7220.87, further provides that the Secretary is “authorized . . . to waive ACIP flight gate requirements for aviators who are unable to meet their gates due to reasons beyond their control.” SECNAV Instruction 7220.87(4) (July 13, 2009), Joint Appendix (J.A.) 74. That regulation also sets forth a waiver-request process: officers “submit their requests via their chain of command,” and if the chain of command “endorse[s]” the request, it forwards the officer’s waiver “package” to the Assistant Secretary of the Navy, who in turn “review[s]” the package “for content, validity, and rationale,” and “forward[s]” it to the Secretary “with a recommendation to approve, disapprove, or . . . return[] to [the] . . . Marine Corps for further action.” Id. at 7220.87(5)(b)-(e), J.A. 75-76.
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