VARGUS v. MCHUGH
Filing
18
MEMORANDUM OPINION to the Order granting Plaintiff's Motion to Compel Production of the Administrative Record. Signed by Judge Gladys Kessler on 4/9/15. (CL, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LTC RICHARD A. VARGUS,
Plaintiff,
v.
Civil Action No. 14-924 (GK)
JOHN M. MCHUGH, SEC'Y
OF THE ARMY,
Defendant.
MEMORANDUM OPINION
Plaintiff Lieutenant Colonel Richard A. Vargus
("Plaintiff"
or "LTC Vargus") brings this action against Defendant Secretary of
the Army John M.
McHugh
("Defendant"
or
"the Government")
to
challenge decisions of the Army Board for Correction of Military
Records
( "ABCMR"
capricious,
or "the Army Correction Board")
unsupported by substantial evidence,
as arbitrary,
or contrary to
applicable law or regulation under the Administrative Procedure
Act ("APA"), 5
u.s.c.
This matter
§
706.
is presently before
the
Court
on Plaintiff's
Motion to Compel Production of the Administrative Record [Dkt. No.
10].
Upon
consideration
of
the
Motion,
Opposition
("Gov't's
Opp'n")
[Dkt. No. 12], and Reply [Dkt. No. 16], the entire record
herein,
and for the reasons stated below,
Plaintiff's Motion to
Compel Production of the Administrative Record is granted.
I .
BACKGROUND
On May 30, 2014, Plaintiff filed his Complaint seeking review
under the APA, 5 U.S.C.
706, of two decisions by the Army Board
§
for Correction of Military Records. The Army Correction Board first
denied the relief Plaintiff sought on February 24, 2009, and denied
his request for reconsideration on September 24, 2009.
The precise factual details of Plaintiff's claims before the
Army Correction Board are complex,
that
the
Vargus' s
according
United
area of
to
States
Army
failed
specialization.
LTC Vargus,
but the essential thrust is
That
to
properly
classify
LTC
improper classification,
deprived him of
the
opportunity for
promotion to the rank of colonel.
On October 30, 2014, the Government filed a Motion to Dismiss
("Gov' t' s
Mot.
to Dismiss") ,
contending
that
jurisdiction to hear Plaintiff's challenge,
this
Court
see Fed. R.
lacks
Civ.
P.
12(b) (1), and that Plaintiff has failed to state a claim upon which
relief can be granted, see Fed. R. Civ. P. 12(b) (6). The Government
contends,
among
other
things,
reclassification presents a
that
Plaintiff
remedies,
failed
to
that
Plaintiff's
request
for
non-justiciable political question,
exhaust
available
that Plaintiff's claim is moot,
administrative
and that Plaintiff is
not entitled to the particular relief he has requested. In support
of its Motion to Dismiss, the Government attached several exhibits,
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many of which were drawn from or rely on the Administrative Record
underlying the ABCMR's proceedings.
On November 17, 2014, Plaintiff filed a Consent Motion for an
Extension of Time to File an Opposition to Defendant's Motion to
Dismiss [Dkt. No. 8], which the Court granted the next day.
On December 12,
2014,
Plaintiff
filed his
Second Consent
Motion to Extend Time to File [Dkt. No. 9]. In this Second Consent
Motion,
time
Plaintiff stated that
to
produce
Accordingly,
oppose.
file
the
Plaintiff would
production of the
would
and
Id.
"a dispute ha[d]
Plaintiff
[Plaintiff's Opposition]
to
[A]dministrative
"shortly file
[A] dministrati ve
arisen over the
a
[R] ecord. "
motion to
compel
[R] ecord [,]" which Defendant
suggested
that
[Defendant's]
"the
Court
hold
Motion to Dismiss in
abeyance until 30 days after the administrative record is filed,
if the Court so rules." Id. A copy of the Second Consent Motion
was served upon counsel for Defendant. Id.
The Second Consent Motion (as its title suggests) was made
with Defendant's consent, and the Government did not indicate any
objection to Plaintiff's proposal. Accordingly, the Court granted
the Motion by Minute Order on December 15,
the Court
held in abeyance
2015. By that Order,
Plaintiff's obligation to file his
Opposition to Defendant's Motion to Dismiss "until 30 days after
the Administrative Record is filed," in the event the Court orders
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its production. Defendant has never asked this Court to reconsider
its
Order
regarding
the
briefing
schedule
for
the
Motion
to
Dismiss.
On December 31,
2014,
Plaintiff filed his Motion to Compel
Production of the Administrative Record which is presently before
the Court. Following requests for extensions of time to file from
both Parties, the Government filed its Opposition on February 3,
2015, and Plaintiff filed his Reply on March 12, 2015.
II.
STANDARD OF REVIEW
The Administrative Procedure Act requires reviewing courts to
"set aside agency action,
findings,
and conclusions found to be
arbitrary, capricious, abuse of discretion, or otherwise not
in accordance with law [.]" 5 U.S. C.
§
706. In doing so,
the APA
requires courts to "review the whole record or those parts of it
cited by a party [.]" Id.
Some matters,
like
"interpreting the
regulation is consistent with
[a]
extent
statute [,]"
to which
may be
[a]
"resolved
with nothing more than the statute and its legislative history."
Am. Bankers Ass'n v. Nat'l Credit Union Admin., 271 F.3d 262, 266
(D.C. Cir. 2001). Often,
jurisdictional questions may be decided
-4-
without
recourse to the
record.
See Swedish American Hosp.
v.
Sebelius, 691 F. Supp. 2d 80, 85 (D.C.C. 2010) . 1
However, when courts must determine whether the "adjudicatory
process was reasonable and whether the decision was consistent
with Congressional intent[,]" they must look to the administrative
record. Swedish American, 691 F. Supp. 2d at 89. When recourse to
the record is necessary,
a court "should have before it neither
more nor less information than did the agency when it made its
decision." See Boswell Memorial Hosp. v. Heckler,
749 F.2d 788,
792 (D.C. Cir. 1984). "To review less than the full administrative
record might allow a party to withhold evidence unfavorable to its
case and so the APA requires review of 'the whole record.'" Id.
III. ANALYSIS
The Government argues that the Court should deny Plaintiff's
Motion to Compel Production of the Administrative Record because
resolution of its Motion to Dismiss does not require inquiry into
the full Record. In the Government's words,
the administrative record is not needed to decide whether the
Court may direct an officer's assignment to a particular
position in the Army; whether Plaintiff has exhausted his
administrative remedies; whether Plaintiff's claims are moot
because the requested amendments to his Official Military
Personnel Record
("OMPF")
have been made;
or whether
Of course, the Court may always look beyond the pleadings to
determine whether it has subject matter jurisdiction. Jerome
Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 125354 (D.C. Cir. 2005).
1
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Plaintiff states a claim for inclusion of civilian records in
his OMPF.
Gov't's Opp'n at 2 (internal citations omitted).
In order to advance these particular arguments in its Motion
to Dismiss, however, the Government itself relies on "a miscellany
of
documents,
many
of
which
might
properly
appear
in
an
administrative record." Boswell Mem'l Hosp., 749 F.2d at 792. For
instance, the Government relies on two affidavits to support its
argument that Plaintiff's claim is moot because all ABCMR-ordered
changes to LTC Vargus's record have been implemented. See Gov't's
Mot. to Dismiss at 15 (citing [Dkt. Nos. 7-5, 7-6]). Whether such
changes have occurred can only be assessed with reference to the
Record itself.
The Government goes on to cite affidavits for the proposition
that it does not possess and cannot alter LTC Vargus's National
Guard records and that an explanation for the absence of various
documents has been placed into Plaintiff's personnel
Gov't's Mot.
to Dismiss at 16,
file.
See
18. The Government contends that
these facts demonstrate that Plaintiff has failed to state a claim
upon which relief can be granted. Whether or not these points are
dispositive of Plaintiff's claims, the Court cannot fully evaluate
them without the Administrative Record.
-6-
Finally,
the
Government
argues
that
Plaintiff
failed
to
request particular relief from the ABCMR and has therefore failed
to exhaust his administrative remedies. Gov't's Mot. to Dismiss at
7. Again, the whether the Government is correct is a question best
answered by the Administrative Record.
Our Court of Appeals has made clear that "[f]or review to go
forward on a partial record,
[the Court] would have to be convinced
that the selection of particular portions of the record was the
result of mutual agreement between the parties after both sides
had fully reviewed the complete record.
Court]
In that situation,
[the
might naturally assume that the omitted portions did not
materially affect either party's case and,
for
[the Court's] own
convenience, review the case on that portion of the record cited
by the parties." Boswell Mem'l Hosp.,
749 F.2d at 793. However,
where one party might be unaware of some parts of the record,
failure
to
produce
the
Record
in
its
entirety
would
produce
"asymmetry in information [that] undermines the reliability of a
court's review upon those portions of the record cited by one party
or
the
other."
Id.
(remanding case
to
the District
Court
for
reconsideration with the benefit of the entire record) .
The arguments Defendant raises in its Motion to Dismiss rely,
at least in part, upon the Administrative Record. Accordingly, the
Government must produce the Record in order to allow Plaintiff to
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rely upon it as well as to enable the Court to evaluate the strength
of both Parties' arguments.
The Government responds that because a court "may consider
documents
outside
the pleadings
to
assure
jurisdiction[,]" Al-Owahali v. Ashcroft,
(D.D.C.
2003),
the
documents
it
cites
itself
279 F.
are
that
Supp.
it
has
2d 13, 21
attached merely to
demonstrate that this Court lacks jurisdiction to hear Plaintiff's
claims. Moreover, as the Government notes, "Courts are not required
to consider the administrative record pertaining to a challenged
action
when
deciding
whether
[they]
subject
ha [ve]
matter
jurisdiction." Fund for Animals v. Williams, 391 F. Supp. 2d 132,
135 n.3
(D.D.C.
2005)
(emphasis added)
(noting also that courts
may consider materials outside the pleadings) .
The
Government's
Motion
to
Dismiss,
jurisdictional questions under Fed. R.
merits under Fed.
R.
Civ.
P.
12 (b) (6).
Civ.
however,
P.
raises
12(b) (1)
both
and the
Defendant may very well
prevail on one of the jurisdictional arguments in its Motion, which
this Court must resolve before considering the merits.
American,
691 F.
Supp.
2d at 85
Swedish
(citing United States ex rel.
Settlemire v. District of Columbia, 198 F.3d 913,
920
(D.C. Cir.
1999)). However, this Court cannot, at this stage, determine the
Government's likelihood of success.
-8-
The Government consented
(or at
the very least
failed to
object) to a briefing schedule that postponed filing of Plaintiff's
Opposition until after resolution of Plaintiff's Motion to Compel.
Without
full
briefing,
the
Court
lacks
sufficient
evidence
to
assess the strength of the Government's arguments that do not rely
on the Administrative Record. 2
IV.
CONCLUSION
For
the
foregoing
reasons,
Plaintiff's
Motion
to
Compel
Production of the Administrative Record is granted. An Order shall
accompany this Memorandum Opinion.
Glfi/trd:er' /~
April 9, 2015
United States District Judge
Copies to: attorneys on record via ECF
In Swedish American, 691 F. Supp. 2d 80, the Court confronted a
situation similar to the case at hand, and now each party claims
that the case supports its position. In Swedish American, the Court
simultaneously granted a motion to compel production of the
administrative record and dismissed several claims for lack of
jurisdiction. Id. at 85, 87. Despite the Government's objections,
the Court held that the record was necessary to decide whether
claims brought under the APA should be dismissed. Id. at 87. The
Court was able to dismiss some claims on jurisdictional grounds
because it had the benefit of full briefing on the motion to
dismiss. Id. Rather than requesting a stay of briefing, the Swedish
American plaintiff had gone ahead and filed an opposition to the
defendant's 12(b) motion without waiting for the Court to rule on
the motion to compel production. Id. at 88 n.6. Like the Swedish
American Court, this Court cannot reach the merits of Defendant's
Motion to Dismiss without the Administrative Record, but unlike
Swedish American,
this Court cannot even reach Defendant's
jurisdictional arguments because it lacks full briefing.
2
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