Bradley v. Stackley
Filing
34
ORDER granting 13 Motion to Remand to Agency. See attached Ruling and Order for details. Signed by Judge Robert N. Chatigny on 4/11/2019. (Freese, M.)
Case 3:17-cv-00495-RNC Document 34 Filed 04/11/19 Page 1 of 13
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KATRINA BRADLEY,
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Plaintiff,
v.
RICHARD V. SPENCER,
Defendant.
Case No. 3:17-cv-495(RNC)
RULING AND ORDER
Plaintiff Katrina Bradley brings this action under the
Fifth Amendment Due Process Clause and the Administrative
Procedure Act (“APA”) challenging a decision of the Board for
Correction of Naval Records (“BCNR”) denying her application for
correction of her naval record.
She seeks an upgrade of her
discharge status or a reversal and remand to the agency with
instructions for further proceedings.
Defendant admits that the
BCNR erred by failing to consider the Military Whistleblower
Protection Act (“MWPA”) and moves for a voluntary remand.1
For
reasons explained below, defendant’s motion is granted.
I. Background
The complaint alleges the following.
Plaintiff, who is
African American and gay, enlisted in the Navy in 1994.
Shortly
after she enlisted, she was the victim of racial profiling by
At the time plaintiff filed the complaint, the Acting Secretary
of the Navy was Sean J. Stackley. The current Secretary is
Richard V. Spencer.
1
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military police officers and sexual harassment by one of her
male superiors.
The sexual harassment made her feel especially
vulnerable as a gay woman who had to be closeted at work due to
the military’s then-current Don’t Ask, Don’t Tell policy.
She
filed a formal sexual harassment complaint, but the Navy failed
to adequately investigate the officer.
Plaintiff’s harasser
made retaliatory statements to her in response to the complaint,
including telling her that she had “messed up” by filing it and
that she would regret doing so.
Moreover, after she filed the
complaint, her supervisors treated her poorly and targeted her
for discipline.
She received non-judicial punishment for four
infractions: leaving her place of duty and watching a movie;
being tardy to a “Captain’s Call”; falling asleep on duty; and
failing to pay her phone bill.
Shortly thereafter, command gave
her administrative counseling and confined her to barracks,
during which time her harasser visited and taunted her.
discharge proceedings followed.
Formal
The harassing officer was
involved in the process leading to the discharge decision.
In
1996, the Navy discharged plaintiff under Other-than-Honorable
(“OTH”) conditions following a recommendation for
“Administrative Separation by reason of Misconduct due to
Commission of a Serious Offense.”
In spring 2016, plaintiff applied to the BCNR to correct
her naval record to reflect a more favorable discharge.
2
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support of her application, she submitted her own affidavit as
well as a declaration from a woman who was her romantic partner
in 1995.
She did not dispute the underlying misconduct but
alleged that the OTH discharge was an excessive response to her
conduct and that the real reasons for the OTH discharge were
discrimination and retaliation.
The BCNR waived the time limit applicable to the filing of
plaintiff’s application but denied the application, finding that
her “punishment was a direct result of [her] actions.”
Regarding her claims that she was sexually harassed and
discriminated against, the BCNR found there was “no evidence in
the record, and [she] provided none, to support [her]
assertions.”
The BCNR decision did not discuss a potential
retaliation claim, the MWPA, or several of plaintiff’s other
arguments.
II. Legal Standard
Courts review “decisions of boards for correction of
military records in light of familiar principles of
administrative law.”
Piersall v. Winter, 435 F.3d 319, 321
(D.C. Cir. 2006) (internal quotation marks omitted) (collecting
cases).
When a district court reviews a final agency action
under the APA, it “sits as an appellate tribunal.”
PPG Indus.,
Inc. v. United States, 52 F.3d 363, 365 (D.C. Cir. 1995)
(quoting Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d
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1221, 1225 (D.C. Cir. 1993)).
The court may “hold unlawful and
set aside agency action, findings, and conclusions” that are
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law,” or that are “unsupported by substantial
evidence.”
5 U.S.C. § 706(2).
“Under settled principles of
administrative law, when a court reviewing agency action
determines that an agency made an error of law, the court’s
inquiry is at an end: the case must be remanded to the agency
for further action consistent with the corrected legal
standards.”
PPG Indus., 52 F.3d at 365 (citations omitted); see
also Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)
(“If the record before the agency does not support the agency
action, if the agency has not considered all relevant factors,
or if the reviewing court simply cannot evaluate the challenged
agency action on the basis of the record before it, the proper
course, except in rare circumstances, is to remand to the agency
for additional investigation or explanation.”).
Administrative agencies have the inherent power to
reconsider their own decisions.
Dun & Bradstreet Corp. Found.
v. U.S. Postal Serv., 946 F.2d 189, 193 (2d Cir. 1991)
(collecting cases).
Voluntary remand is usually appropriate
when new evidence becomes available, see Ethyl Corp. v. Browner,
989 F.2d 522, 523-24 (D.C. Cir. 1993), or when intervening
events, such as a new legal decision or passage of legislation,
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could “affect the validity” of the original decision, SKF USA
Inc. v. United States, 254 F.3d 1022, 1028 (Fed. Cir. 2001)
(citing Ethyl Corp., 989 F.2d at 524).
However, “[e]ven in the
absence of intervening events, upon an agency’s remand request,
the reviewing court still has discretion over whether to
remand.”
Sierra Club v. Van Antwerp, 560 F. Supp. 2d 21, 23
(D.D.C. 2008) (citing Citizens Against Pellissippi Parkway
Extension, Inc. v. Mineta, 375 F.3d 412, 417 (6th Cir. 2004)
(“Although there is no allegation of new evidence or a change in
the law in the present case, the same considerations of judicial
efficiency apply.”)).
In such a case, “if the agency’s concern
is substantial and legitimate, a remand is usually appropriate.”
SKF USA Inc., 254 F.3d at 1029.
Nevertheless, an agency’s
voluntary request for remand may be denied under limited
circumstances.
For example, “[a] remand may be refused if the
agency’s request is frivolous or in bad faith.”
Id. (citing
Lutheran Church–Mo. Synod v. FCC, 141 F.3d 344, 349 (D.C. Cir.
1998)).
Moreover, a court may decline to grant a remand if it
is clear that a remand would be futile.
E.g., NLRB v. Am. Geri-
Care, Inc., 697 F.2d 56, 64 (2d Cir. 1982) (upholding an
administrative decision where “reversal and remand would be an
idle and useless formality . . . because there is not the
slightest doubt that the [agency] would simply reaffirm its
order” (citation and internal quotation marks omitted)); see
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also A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1489 (D.C. Cir.
1995) (declining to remand where “[t]here is not the slightest
uncertainty as to the outcome of a[n] [agency] proceeding”
(alterations in original) (quoting NLRB v. Wyman-Gordon Co., 394
U.S. 759, 766 n.6 (1969))).2
III. Discussion
A. Voluntary Remand
Remand is appropriate here.
The BCNR erred by failing to
address the applicability of the MWPA when the agency reviewed
plaintiff’s application.
The parties agree that under the
BCNR’s own regulations, 32 C.F.R. § 723.3(e)(4), the BCNR was
required to address the applicability of the MWPA.
See Def.’s
Motion, ECF No. 13, at 6; Pl.’s Opp., ECF No. 14, at 4.
Defendant’s admission of legal error is a “substantial and
legitimate” concern justifying a voluntary remand.
See Citizens
Against Pellissippi Parkway Extension, 375 F.3d at 416 (noting
that it may be “an abuse of discretion to prevent an agency from
acting to cure the very legal defects asserted by plaintiffs
challenging federal action”).
Plaintiff opposes a remand on the ground that it would be
futile because the BCNR often fails to adequately review
See also Macktal v. Chao, 286 F.3d 822, 826 (5th Cir. 2002)
(“An agency may not reconsider its own decision if to do so
would be arbitrary, capricious, or an abuse of discretion.”).
2
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applications and rarely finds MWPA violations.
No. 14, at 6-10.3
Pl.’s Opp., ECF
Even assuming the Court may consider the
statistical evidence plaintiff cites, which defendant disputes,
she has not shown that remand would be futile.
This is not a
case where “[t]here is not the slightest uncertainty as to the
outcome” on remand, A.L. Pharma, 62 F.3d at 1489, or where
“reversal and remand would be an ‘idle and useless formality’ .
. . because there is not the slightest doubt that the [BCNR]
would simply reaffirm its order,” Am. Geri-Care, 697 F.2d at 64.
Remand is appropriate when, as here, there is some chance the
agency will come to a different conclusion.
E.g., Nat’l
Nutritional Foods Ass’n v. FDA, 504 F.2d 761, 798 & n.65 (2d
Cir. 1974) (remanding to the FDA to allow for cross-examination
of an expert because the court “simply cannot assume that if
[the expert’s testimony] had been shattered by vigorous crossexamination, however unlikely that may be, the FDA or we would
reach the same result”).
She also cites internal BCNR training materials that apparently
misstate the MWPA’s definition of “protected communication” in
an inappropriately limited way. See Pl.’s Supp. Br., ECF No.
22. Defendant admits that the training materials plaintiff
identified misstate the law and represents that the BCNR has
corrected its training program accordingly. Def.’s Reply to
Supp. Br., ECF No. 28. The BCNR’s changed position was
apparently spurred by a ruling that remanded a case after the
BCNR applied the same incorrect definition of “protected
communication” that plaintiff identifies here. See Goode Aff.,
ECF No. 31, at 2 (discussing Penland v. Mabus, 181 F. Supp. 3d
100 (D.D.C. 2016)).
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Plaintiff also argues that remand is inappropriate because
it would delay the proceedings.
She cites no cases holding that
an expected delay in proceedings provides a court with a
sufficient basis for denying a voluntary remand.
Opp., ECF No. 14, at 10-12.
See Pl.’s
An appellate tribunal may always
hasten the final resolution of a case by declining a remand and
undertaking to decide for itself all the issues presented; but,
like any appellate body, this Court “is not generally empowered
to conduct a de novo inquiry into the matter being reviewed and
to reach its own conclusions based on such an inquiry.”
Fla.
Power & Light Co., 470 U.S. at 744.
To some extent, plaintiff’s “delay” argument merely
restates her futility argument: since it is unlikely the BCNR
will come to a different decision, the case will likely come
before this Court again.
But, even if that is true, remand is
appropriate because the Court will have the benefit of reviewing
a more fully developed record in the event plaintiff brings
another APA challenge.
This is particularly true in this case
because, after the BCNR’s review of her MWPA claim on remand,
plaintiff will be entitled to an administrative appeal that was
not available after the BCNR’s first decision.
32 C.F.R. §
723.7(b) (“[I]n cases involving the [MWPA,] . . . unless the
full relief requested is granted, [the Secretary will] inform
applicants of their right to request review of the decision by
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the Secretary of Defense.”).
In general, granting an agency’s
voluntary request for a remand allows “agencies to cure their
own mistakes rather than wasting the courts’ and the parties’
resources reviewing a record that both sides acknowledge to be
incorrect or incomplete.”
Ethyl Corp., 989 F.2d at 524.
Thus,
judicial economy weighs in favor of, not against, remanding the
case.
B. Proceedings on Remand
In the event of a remand, plaintiff has urged the Court to
impose several requirements on the BCNR.
I decline to order the
BCNR to adhere to most of plaintiff’s requests.
However, I
agree with plaintiff that some aspects of the BCNR’s first
decision must be reconsidered on remand.
Plaintiff first notes that the BCNR’s decision stated that
“[t]here is no evidence in the record, and you provided none, to
support your assertions” of sexual harassment and
discrimination.
She argues that this was erroneous because of
the sworn statements she provided supporting her allegations.
While she acknowledges that the BCNR regulations give a
“presumption of regularity to support the official actions of
public officers,” she notes that this presumption is rebuttable
with “substantial evidence to the contrary.”
723.3(e)(2).
32 C.F.R. §
She asks this Court to (1) direct that there is
undisputed evidence in the record that she filed a sexual
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harassment complaint, and (2) in the absence of further
evidence, require the BCNR to determine whether the sworn
statements are sufficient to rebut the presumption of regularity
and, if not, explain why.
“The scope of review under the ‘arbitrary and capricious’
standard is narrow and a court is not to substitute its judgment
for that of the agency.”
Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
Accordingly, the Court cannot direct the BCNR to make a
particular evidentiary finding.
“Nevertheless, the agency must
examine the relevant data and articulate a satisfactory
explanation for its action including a ‘rational connection
between the facts found and the choice made.’”
Id. (citing
Burlington Truck Lines v. United States, 371 U.S. 156, 168
(1962)).
The Court “will not disturb the decision of an agency
that has” done so.
Pettiford v. Sec’y of the Navy, 774 F. Supp.
2d 173, 181 (D.D.C. 2011) (citation omitted).
But “[t]o enable
a court to perform that review and ensure that the decision is
not ‘utterly unreviewable,’ a military corrections board ‘must
give a reason that a court can measure, albeit with all due
deference, against the “arbitrary or capricious” standard of the
APA.’”
Id. at 182 (quoting Kreis v. Sec’y of the Air Force, 866
F.2d 1508, 1514-15 (D.C. Cir. 1989)).
In this case, although
the BCNR is only required to “include a brief statement of the
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grounds for denial,” the statement “shall include the reasons
for the determination that relief should not be granted,
including . . . the essential facts upon which the denial is
based.”
32 C.F.R. § 723.3(e)(3)-(4).
Therefore, if on remand
the BCNR rejects the evidence provided by plaintiff, it must
provide an adequate explanation.4
Plaintiff also requests that the Court order certain
discovery procedures and an in-person evidentiary hearing.
Court cannot grant this relief.
The
Defendant has considerable
discretion in fashioning procedures for the BCNR to follow.
See
10 U.S.C. § 1552(a)(3)(A) (“Corrections . . . shall be made
under procedures established by the Secretary concerned.”).
As
plaintiff recognizes, under the currently applicable
regulations, rights to discovery and hearings are discretionary.
See, e.g., 32 C.F.R. § 723.3(e)(1), .4.
Whatever the merits of
plaintiff’s arguments as a matter of policy, the Court cannot
order the BCNR to grant her discovery and an in-person hearing.
Moreover, plaintiff’s request for mandatory deadlines is
Contrary to defendant’s assertion, ECF No. 16 at 10-11, the
BCNR’s statement that plaintiff provided “no evidence” cannot be
read simply as a statement that she did not provide substantial
evidence. Even if it could be, moreover, such a conclusory
statement is insufficient to allow for meaningful judicial
review. Under the BCNR’s regulations and principles of
administrative law, the BCNR must provide some explanation for
its decision. As it stands, the “brief statement went awry” by
incorrectly failing to acknowledge the evidence provided by
plaintiff. Penland, 181 F. Supp. 3d at 105.
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unwarranted.
Defendant concedes that it is within this Court’s
power to grant such a request.
ECF No. 16 at 11.
imposed deadlines are not necessary here.
But court-
The regulations
governing the BCNR provide that decisions in cases involving the
MWPA must be issued “180 days after receipt of the case.”
C.F.R. § 723.7(b).
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Plaintiff has not shown any need for an
especially prompt decision or that she would be prejudiced by
the 180-day timeline.
Finally, plaintiff states that the BCNR did not address all
her arguments.
E.g., ECF No. 14 at 1.
On remand, the BCNR must
ensure that it considers all of plaintiff’s “arguments that are
not facially frivolous.”
(D.C. Cir. 1997).
Frizelle v. Slater, 111 F.3d 172, 174
“[I]f a military board of corrections
‘fail[s] to address . . . arguments that are not facially
frivolous,’ its decision must be reversed and the matter
remanded.”
Pettiford, 774 F. Supp. 2d at 182 (quoting Frizelle,
111 F.3d at 174) (other citations omitted); see also id. at 185
(“On remand, the BCNR is free to reject plaintiff’s argument,
but ‘it must expressly indicate that it has done so’ and
‘explain its rationale.’” (citations omitted)).
IV. Conclusion
Accordingly, defendant’s motion for voluntary remand, ECF
No. 13, is granted.
The case is remanded to the BCNR for
further proceedings consistent with this Order.
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The Clerk may
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enter judgment and close the file.
So ordered this 11th day of April 2019.
___/RNC/________________
Robert N. Chatigny
United States District Judge
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