Bennett v. McHugh
Judge F. Dennis Saylor, IV: Order of Partial Judgment and Remand. Copy mailed. (Pezzarossi, Lisa)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
DAVID W. BENNETT,
PATRICK J. MURPHY,
Acting Secretary of the Army,
Civil Action No.
ORDER OF PARTIAL JUDGMENT AND REMAND
This matter arises out of the United States Army’s denial of a veteran’s petitions for
correction of his military records. Pro se Plaintiff David Bennett, a Vietnam veteran and former
Army Captain, has brought six claims under the Due Process Clause of the Fifth Amendment and
the Administrative Procedure Act, 5 U.S.C. § 500 et seq. The complaint alleges that the Army
Board for Correction of Military Records (“ABCMR”) improperly denied Bennett militaryretirement status and refused to expunge from his military record an adverse academic evaluation
report (“AER”), an adverse officer evaluation report (“OER”), and related documents.
Defendant Patrick J. Murphy, Acting Secretary of the Army, moved for summary
judgment on all claims. On February 26, 2016, the Court granted his motion in part and denied it
in part. The Court granted defendant’s motion as to Counts Three and Six, concluding that the
The complaint names former Secretary of the Army John M. McHugh as the defendant. Pursuant to
Federal Rule of Civil Procedure 25(d), Acting Secretary Patrick J. Murphy, is automatically substituted as the new
ABCMR’s decision not to award Bennett retroactive disability retirement was not arbitrary and
capricious under the APA. However, it denied defendant’s motion as to Counts One, Two, Four,
and Five. The Court further ordered defendant to show cause why summary judgment should
not be entered in favor of Bennett on those claims pursuant to Fed. R. Civ. P. 56(f). Specifically,
defendant was ordered to show cause why the AER (A.R. 646), a letter related to the AER (A.R.
499), the OER (A.R. 683-85), and documents related to the OER (A.R. 652-53) should not be
formally expunged from Bennett’s record.
On March 18, 2016, defendant responded to the order to show cause. He conceded that
the AER, the letter related to the AER, and the OER should be formally expunged. However, as
to pages 652 and 653 of the administrative record, defendant requested that the Court remand the
issue to the ABCMR.2 In support of that request, he noted that Bennett did not formally seek
removal of the correspondence dated December 21, 1971 (A.R. 652-53) in his ABCMR
applications, and therefore, the ABCMR did not make any findings about those documents.
When an agency has not considered all relevant factors when making its decision, the
proper course generally is to remand the matter to the agency for reconsideration. Florida Power
& Light v. Lorion, 470 U.S. 729, 744 (1985). Voluntary remands are commonly granted because
they allow agencies to correct their own mistakes without expending the resources of the court in
reviewing a record that is admittedly incomplete or incorrect. See, e.g., Ethyl Corp v. Browner,
989 F.2d 522, 524 (D.C. Cir. 1993). A voluntary remand should therefore be granted except in
such “rare circumstances” as where there are clear reasons for a court to proceed without
granting the remand. See Florida Power, 470 U.S. at 744; Citizens Against Pellissippi Parkway
Extension, Inc. v. Mineta, 375 F.3d 412, 417 (6th Cir. 2004). Thus, for example, courts have
Given the nature of the defendant’s request, the Court will construe his response to the order to show
cause as a motion for partial remand.
held that an agency has the inherent authority to reconsider its own decision but found clear
reason to deny a voluntary remand when an agency’s request to review its own decision is
“arbitrary, capricious, or an abuse of discretion.” See Macktal v. Chao, 286 F.3d 822, 826 (5th
Accordingly, and for the foregoing reasons, it is hereby ORDERED as follows:
Plaintiff David Bennett is granted partial summary judgment as to Counts One,
Two, Four, and Five pursuant to Fed. R. Civ. P. 56(f). Specifically, the ABCMR
is hereby ORDERED to remove and formally expunge Bennett’s adverse OER
(A.R. 683-85), adverse AER (A.R. 646), and the AER-related correspondence
dated August 1, 1972 (A.R. 499).
Defendant’s motion for partial remand to the ABCMR for consideration of pages
652 and 653 of the administrative record is GRANTED.
The purpose of the remand is to permit the ABCMR an opportunity to review and
render a decision regarding whether the OER-related correspondence dated
December 21, 1971 (A.R. 652-53) should remain in his official military personnel
Bennett shall promptly submit any additional evidence that he wishes to the
ABCMR to consider in its review of pages 652 and 653 of the administrative
record. If the ABCMR has not rendered a decision within 180 days of the date of
this order, Bennett may seek appropriate relief from this Court.
The Court will retain jurisdiction over this matter to the extent necessary and
appropriate to address any further proceedings arising out of or related to this
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: April 13, 2016
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