Clark v. Department of the Army et al
Filing
73
ORDER AND REASONS. ORDERED that plaintiff's 57 Motion for Summary Judgment is DENIED, and defendants' 60 Motion for Summary Judgment is GRANTED, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 02/25/2019. (Reference: Both Cases)(am)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PEGGY JEAN CLARK
CIVIL ACTION
VERSUS
NO. 17-7757
c/w 18-2298
DEPARTMENT OF THE
ARMY, ET. AL.
SECTION: “B”(3)
ORDER AND REASONS
Before the Court is Plaintiff Peggy Jean Clark’s motion for
summary judgment (Rec. Doc. 57), Defendants Department of the Army
and Secretary of the Army’s response in opposition (Rec. Doc. 61),
Defendants’
motion
for
summary
judgment
(Rec.
Doc.
60),
and
Plaintiff’s response in opposition (Rec. Doc. 62). The Court also
takes into consideration the filing of the administrative record
(Rec. Doc. 30). For the reasons discussed below,
IT IS ORDERED that plaintiff’s motion for summary judgment is
DENIED and defendants’ motion for summary judgment is GRANTED.
FACTS AND PROCEDURAL HISTORY
This action arises from a suit for judicial review of a final
agency action that terminated Plaintiff’s benefits and privileges
provided for under the Uniformed Services Former Spouse Protection
Act. See Rec. Doc. 57-1 at 2. Plaintiff is a resident of Parish of
St. John the Baptist, Louisiana. See Rec. Doc. 1 at 2. She is the
former spouse of Ronald Williams, who served approximately 16 years
of
military
service
before
retiring
1
under
the
voluntary
early
retirement program. See Rec. Doc. 30-1 at 7. The two were married
for approximately 27 years. See id. Defendant Department of the Army
is an agency of the United States located in Fort Knox, Kentucky.
See Rec. Doc. 1 at 2. Defendant Secretary of the Army works with the
other defendant and is responsible for compliance with the federal
law and regulations. See id.
As an auxiliary of defendants, the U.S. Army Project Office
serves as the primary point of contact for issues involving ID cards
and related benefits. See Rec. Doc. 30-1 at 1. The Army Project
Office operates under the Department of Defense Instruction (“DoDI”)
1314.02; DoD Manual (“DoDM”) 1000.13, Volume 2, DoD ID Cards; and
Defense Enrollment Eligibility Reporting System (“DEERS”) Program
and Procedures. See id. The DEERS Program and Procedures grant the
Army Project Office the authority to be the final decision maker for
the Army for ID cards and benefits. See Rec. Doc. 60-1 at 5.
In November 2007, approximately seven years after plaintiff and
Mr. Williams divorced, plaintiff was issued a Department of Defense
Identification Card (“DoD ID card”) under the 20/20/20 rule. See id.
at 2. The 20/20/20 rule entitles certain un-remarried former spouses
to certain benefits if they were married to their servicemember
spouse for 20 years; the servicemember had 20 years of military
service; and the overlap of the marriage and military service is at
least 20 years. See id. On October 14, 2015, Plaintiff contacted the
U.S.
Army
Human
Resources
Command
2
to
verify
her
documents
for
20/20/20
former
spouse
eligibility.
See
id.
It
is
unclear
why
Plaintiff sought to verify her documents after eight years.
On
April
17,
2017,
after
several
correspondences
between
plaintiff and defendants, Army Project Officer Michael Klemowski
wrote a letter to plaintiff explaining that she was not 20/20/20
former spouse eligible. See Rec. Doc. 30-1 at 7. He also mentioned
a change in the process of issuing a former spouse an ID card because
of fraudulent activity. 1 See id. On August 29, 2017, the Army Project
Office
terminated
plaintiff’s
DoD
ID
card
with
a
retroactive
effective date of December 9, 2015. See Rec. Doc. 60-1 at 5.
On August 11, 2017, plaintiff filed a complaint challenging the
Army Project Office’s decision to revoke her DoD ID card. 2 See Rec.
Doc. 1. Then, on July 23, 2018, plaintiff filed a motion for summary
judgment. See Rec. Doc. 57. Defendants timely responded. See Rec.
Doc. 61. On August 22, 2018, defendants filed a motion for summary
judgment. See Rec. Doc. 60. Plaintiff timely responded. See Rec.
Doc. 62.
Prior to October 2015, when a former spouse claimed entitlement to un-remarried
former spouse (“URFS”) benefits, an ID card site normally would review the
submitted documents. Thereafter, if an URFS was eligible, the ID card site would
create a URFS entry (“segment”) in the DEERS’s Real-time Automated Personnel
Identification System for the individual. However, since October 2015, by
direction of the Defense Human Resources Activity, the military services’ project
offices have made URFS determinations, instead of the ID card sites. See Rec. Doc.
30-1 at 2-3.
2 Plaintiff’s DoD ID card entitled her to certain benefits, including medical
care, Post Exchange, and commissary privileges. See Rec. Doc. 61 at 1.
1
3
LAW AND ANALYSIS
A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate
when
interrogatories,
“the
and
pleadings,
admissions
on
depositions,
file,
answers
together
with
to
the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(quoting Fed. R. Civ. P. 56(c)). See also TIG Ins. Co. v. Sedgwick
James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A genuine issue
of material fact exists if the evidence would allow a reasonable
jury to return a verdict for the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court should view
all facts and evidence in the light most favorable to the non-moving
party. United Fire & Cas. Co. v. Hixson Bros. Inc., 453 F.3d 283,
285 (5th Cir. 2006). Mere conclusory allegations are insufficient to
defeat summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th
Cir. 1996).
The
movant
must
point
to
“portions
of
‘the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex, 477 U.S.
at 323. If and when the movant carries this burden, the non-movant
must then go beyond the pleadings and present other evidence to
4
establish a genuine issue. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, “where the
non-movant bears the burden of proof at trial, the movant may merely
point to an absence of evidence, thus shifting to the non-movant the
burden of demonstrating by competent summary judgment proof that
there is an issue of material fact warranting trial.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). “This court
will not assume in the absence of any proof that the [non-moving]
party could or would prove the necessary facts, and will grant
summary judgment in any case where critical evidence is so weak or
tenuous on an essential fact that it could not support a judgment in
favor of the [non-movant].” McCarty v. Hillstone Rest. Grp., 864
F.3d 354, 357 (5th Cir. 2017).
Summary judgment is appropriate where a district court is
reviewing an agency decision under the APA. See Spiller v. Walker,
2002 U.S. Dist. LEXIS 13194 *1, *21 (W.D. Tex. 2002)(“In a case like
this one, where the Court is reviewing an agency decision under the
APA, summary judgment is the appropriate means for resolving claims
because the Court is reviewing the legality of the agency action,
not acting as the initial factfinder.”).
B. APA Review Standard
The parties agree that this Court’s review is governed by the
APA. See Rec. Doc. 57-1 at 5; Rec. Doc. 61 at 2. The APA empowers
courts to reverse agency action that is arbitrary and capricious.
5
See Alenco Communs., Inc. v. FCC, 201 F.3d 608, 610 (5th Cir. 2000)
citing to 5 U.S.C. § 706. Pursuant to the APA, courts shall review
the administrative record to determine whether the challenged agency
action was arbitrary and capricious or otherwise not in accordance
with law. See 5 U.S.C. § 706; Harris v. United States, 19 F.3d 1090,
1096 (5th Cir. 1997). This is a very narrow standard of review. See
Harris, 19 F.3d at 1096. Courts shall review the administrative
record looking only to find whether the agency articulated a rational
relationship between the facts and their action. See City of Abilene
v. United States, 325 F.3d 657, 664 (5th Cir. 2003). In fact, courts
must uphold the challenged agency action if the agency’s reasons and
choices conform to minimal standards of rationality. See id. (stating
that the APA standard is a deferential standard). Courts may not
substitute their own judgment for that of the agency. See id.
C. Defendants’ Motion for Summary Judgment is Granted
Courts shall apply the APA standard of review to the agency’s
action based solely on the administrative record. See Fla. Power &
Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985). In other words,
courts shall focus their review on the administrative record already
in existence, “not some new record made initially in the reviewing
court.” See Luminant Generation Co., LLC v. EPA, 714 F.3d 841, 850
(5th Cir. 2013).
On
March
1,
2018,
defendants
noticed
the
filing
of
the
administrative record for the instant case. See Rec. Doc. 30. The
6
record consists of a declaration of Deputy Army Project Officer John
Ellerbe as well as numerous attachments. See id. Specifcally, in
making their choice to revoke plaintiff’s DoD ID card, the Army
Project Office reviewed the following documents and regulations:
Soldier
Management
System
Printout;
Certificate
of
Release
or
Discharge from Active Duty; Certificate of Marriage; Judgment of
Divorce; DoDI 1000.13, paragraph 6.2.5.2.1; Department of Defense
Financial
Management
Regulation,
Volume
12,
Chapter
18;
DoDI
1341.02; DoDI 1000.13, paragraphs E2.1.7 and E.2.1.9; and 10 U.S.C.
§ 1072. See Rec. Doc. 30-1 at 5-3. The administrative record also
includes several letters exchanged from the Army Project Office and
plaintiff. See id. at 7-21.
Plaintiff acknowledges that her former spouse retired under the
TERA, stating that that kind of early retirement is equivalent to a
20-year
retirement.
Specifically,
plaintiff
contends
that
the
regulations relevant here should be read to say “at least 15” in
place of “at least 20” in each instance; however, she cites to no
case law to support such an interpretation. Plaintiff, in her Motion
for Summary Judgment, attempts to support her contention with Section
4403(b)(B) of the FY 1993 National Defense Authorization Act for
1994 which mentions that the Army may make said substitution in the
application of 10 U.S.C. § 3914 to a certain officer. See Rec. Doc.
57-4 at 1. Plaintiff’s contention is unconvincing. Title 10 U.S.C.
§ 3914 is not relevant here as it was not considered by Defendants.
7
It
is
not
part
plaintiff offers
of
the
nothing
administrative
persuasive
for
record.
extending
Furthermore,
Section
4403(b)
(B) beyond 10 U.S.C. § 3914 to the regulations relevant here. Lastly,
Plaintiff’s
argument
that
defendants
changed
their
determination for no justifiable reason is also unconvincing because
defendants explicitly acknowledged their prior error. See Luminant
Generation Co., LLC, 714 F.3d at 855 (stating that an agency is not
bound to follow a previous action committed in error).
The evidence exhibited in the administrative record would not
allow a reasonable jury to return a verdict for plaintiff. As all
parties agree, plaintiff sought entitlement to certain benefits as a
20/20/20 former spouse.3 See Rec. Doc. 30-1 at 8-21. It is apparent
that the 20/20/20 former spouse rule requires three things: (1) that
the former spouse was married to the servicemember for at least 20
years; (2) that the servicemember had at least 20 years of service
creditable towards retirement; and (3) that the marriage and service
overlapped
by
at
least
20
years.
Per
the
administrative
record,
plaintiff and Mr. Williams were married for 27 years and Mr. Williams
served 16 years, 6 months, and 2 days of military service. See id.
30-1 at 40-42 (certificate of discharge, marriage certificate, and
divorce
decree).
Thus,
the
second
and
third
requirements
of
the
20/20/20 rule are not met.
In at least one letter, Plaintiff mentions 20/20/15 former spouse entitlement
which also requires 20 years of service by the former spouse servicemember.
3
8
In
their
April
17,
2017
letter,
defendants
explained
to
plaintiff that she was not entitled to any benefits because she did
not qualify as a 20/20/20 former spouse. See id. at 7. Specifcally,
defendants explained that Plaintiff’s former servicemember spouse
had not served at least 20 years of military service. Plaintiff was
incorrectly coded as a 20/20/20 former spouse and erroneously issued
a DoD ID for many years. Once the error was confirmed, defendants,
through the Army Project Office, made the decision to correct the
error by revoking Plaintiff’s DoD ID. Defendants support their
decision with the definition of a 20/20/20 former spouse under the
regulations relevant here. 4
4 The regulations relevant here are 10 U.S.C § 1072(F), 32 § C.F.R. 199.3, and
DoDI 1000.13.
10 U.S.C. § 1072(F) states that:
the unremarried former spouse of a member or former member who (i) on
the date of the final decree of divorce, dissolution, or annulment,
had been married to the member or former member for a period of at
least 20 years during which period the member or former member
performed at least 20 years of service which is creditable in
determining that member’s or former member’s eligibility for retired
or retainer pay, or equivalent pay, and (ii) does not have medical
coverage under an employer-sponsored health plan. See Rec. Doc. 30-1
at 47.
32 § C.F.R. 199.3(b)(2)(i)(F)(1) states that:
the former spouse must have been married to the same member or former
member for at least 20 years, at least 20 of which were creditable in
determining the member’s or former member’s eligibility for retired
or retainer pay. See Rec. Doc. 1-1 at 2.
Defendants contend that under this regulation the member or former member
still had to have performed at least 20 years of military service creditable
towards retirement in accordance with paragraph (b)(2)(i)(C). See Rec. Doc.
60-1 at 10 fn. 3.
DoDI 1000.13 states:
9
Therefore, upon review of the administrative record, this Court
finds a rational relationship between the facts and the Army Project
Office’s action. The Army Project Office’s revocation of plaintiff’s
DoD ID card was not arbitrary or capricious or otherwise not in
accordance with law and warrants deference.
See Luminant Generation
Co., LLC, 714 F.3d at 855 citing to Tex. Oil & Gas Ass’n v. United
States EPA, 161 F.3d at 9,23 934 (5th Cir. 1998) (upholding agency
action after finding an agency’s reasons and policy choices to
conform
to
minimal
standard
of
rationality
and
therefore
reasonable).
New Orleans, Louisiana, this 25th day of February, 2019.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
6.2.5.2.1. Unmarried former spouse of a member or retired member,
married to the member or retired member for a period of at least 20
years, during which period of the member or retired member performed
at least 20 years of service that is creditable in determining the
member’s or retired member’s eligibility for retired or retainer pay
(20/20/20) (10 U.S.C. 1408 and 1072(2)(F), references (o) and (p)).
See Rec. Doc. 30-1 at 43.
10
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