ELLIOT v. UNITED STATES OF AMERICA

Filing 11

ORDER granting 5 defendant's Motion to Remand and Stay. Case to be administratively closed pending completion of reconsideration on remand; final determination to be made no later than November 6, 2017; Status report due 14 days after final determination. Signed by Judge Ellen S. Huvelle on July 7, 2017. (AG)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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JASON ELLIOTT,
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Plaintiff,
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v.
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UNITED STATES OF AMERICA,
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Defendant.
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____________________________________)

Civil Action No. 16-2336 (ESH)

ORDER
Plaintiff Jason Elliott brings this action against the United States seeking judicial
review of a denial of disability benefits by the United States Navy under the Servicemembers
Group Life Insurance Traumatic Injury Protection Program. See 38 U.S.C. § 1980A
(TSGLI). Before the Coiurt is the United States’ motion for voluntary remand and stay (Mot.
for Remand, ECF No. 5), which plaintiff has opposed (Opp’n, ECF No. 8.). Upon
consideration of the motion, plaintiff’s opposition, defendant’s reply, Judge Collyer’s recent
decision granting a motion to remand in a very similar case, see White v. United States, No.
17-cv-0193, slip op. (D.D.C. May 10, 2017) (see Def.’s Notice of Supplemental Authority,
ECF No. 10), and the equities of the matter, the Court concludes that the motion should be
granted.
The standard for ruling on a motion for voluntary remand was set forth in Judge
Collyer’s recent decision:
When a plaintiff challenges an administrative agency action, the agency has the
inherent power to reconsider its own decision and may move for a voluntary
remand. Federal courts have the discretion to grant the agency’s motion for
remand before considering the merits of the plaintiff’s claims. . . . Generally,

courts have found a voluntary remand appropriate when new evidence becomes
available or where intervening events outside the agency’s control may affect the
agency’s decision.
However, a voluntary remand may be appropriate “[e]ven in the absence of new
evidence or intervening events . . . where an agency requests a remand (without
confessing error) in order to reconsider its previous position, or where the agency
believes that its original decision is incorrect on the merits and wishes to change
the result.
In such cases, judges in this district have developed a three-pronged approach to
determine the suitability of a voluntary remand. Courts consider whether: (1)
defendants have identified substantial and legitimate concerns in support of a
voluntary remand; (2) voluntary remand would conserve the Court’s and the
parties’ time and resources; and (3) voluntary remand would unduly prejudice
the plaintiff. Applying these factors, it is entirely appropriate for courts to grant
an agency’s voluntary remand even when an agency refuses to admit fault. This
is because what really matters when an agency requests a voluntary remand . . .
is whether the agency is genuinely willing to revisit the challenged
determination. Thus, courts should deny a request that is frivolous or in bad
faith.
White, slip op. at 3-4 (internal citations and quotation omitted).
Here, plaintiff alleges that the denial of his TSGLI claim was arbitrary and capricious
because:
Defendant did not provide justification as to why the greater weight of the
evidence did not support Plaintiffs eligibility for TSGLI benefits; give any
reasons why the certifying medical professional's certification was not credible;
address the caregiver statement of Sgt Walker attesting to his observations and
provision of assistance to Plaintiff during his recovery; or provide reasonable or
substantial evidence or medical opinion contradicting Plaintiff's claim for
TSGLI benefits.
(Compl. ¶ 31). The Court agrees with defendant that “[g]iven these allegations, further
explanation by the Council regarding how it reached its decision and how it applied the
applicable regulations to Plaintiff’s case would assist the Court’s review and may potentially
result in a different final decision and obviate the need for this litigation.” (Mot. at 6.)
Defendant represents that on remand it “will reconsider all case records and regulations, along
with any other documentation Plaintiff provides” (id.) and plaintiff provides no support for the
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suggestion that defendant is merely seeking a chance to “paper-over” deficiencies in its
decision (see Opp’n at 6). See White, slip op. at 5 (rejecting the same “cursory allegation”
where there was “nothing to suggest that the government’s motion to remand is frivolous or in
bad faith”). Plaintiff’s concern that the remand will simply result in delayed judicial review, if
the decision remains the same, is understandable. Accordingly, while the Court concludes that
a remand is appropriate, it will grant plaintiff’s request that it be completed in fewer than 180
days.
Accordingly, it is hereby
ORDERED that defendant’s motion is GRANTED; it is further
ORDERED that the above-captioned case be REMANDED to the Department of the
Navy for further proceedings. Upon remand, the agency will consider the complete records
from the Navy TSGLI office pertaining to plaintiff’s TSGLI claim and request for relief, along
with any other documentation plaintiff may wish to submit in the next 30 days; it is further
ORDERED that a final determination shall be made no later than November 6, 2017;
it is further
ORDERED that the proceedings in this case shall remain STAYED and the case shall
be ADMINISTRATIVELY CLOSED until such a time as ordered otherwise; and it is further
ORDERED that within 14 days after final action by the agency upon remand, the
parties will file with this Court a copy of the agency’s decision, along with a joint status report
setting forth their respective positions as to whether and how this case should proceed.

/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: July 7, 2017
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