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Neil C. Wilhelmus v. Pete Geren

July 13, 2011

NEIL C. WILHELMUS, PLAINTIFF,
v.
PETE GEREN, DEFENDANT.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

Plaintiff Neil Wilhelmus was a cadet at the United States Military Academy. He struggled throughout his time there with the mandatory Cadet Physical Fitness Test and was eventually disenrolled because of his repeated failures on this test. After being separated from the Academy, the Army determined that he owed the government $137,630 for failing to fulfill his contractual obligations. He appealed to the Army Board for the Correction of Military Records (ABCMR), which upheld the Army's decision. He now turns to this Court. Because the ABCMR did not adequately consider its precedents, the Court will remand the matter.

I.Background

On June 30, 1997, Plaintiff entered the Academy and signed an oath of allegiance and a cadet contract. Mot. at 2; Compl., ¶ 12. This contract read, in relevant part: "[I]f I voluntarily fail . . . to complete the period of active duty specified [above], I will reimburse the United States in an amount that bears the same ratio to the total cost of advanced education provided me as the unserved portion of active duty bears to the total period of active duty I have agreed to serve."

Agreement to Serve, ¶ IIf, quoted in ABCMR Record at 9. Not a natural athlete, Plaintiff struggled with the mandatory Cadet Physical Fitness Test (CPFT) while at the Academy and was placed on the list of cadets who had repeatedly failed the CPFT by the fall of his sophomore year. Compl., ¶ 15. He failed the running portion of the CPFT on three occasions between December 1998 and May 1999, as well as the sit-up portion of the last test. ABCMR Record at 10-11. In April 1999, his scheduled attendance at the Airborne School was canceled because of his inability to pass the CPFT, and he was advised that he would be recommended for separation if he did not pass the next test. Compl., ¶¶ 16-17. In response, Plaintiff wrote to his superiors to explain the reasons for his failures, citing several injuries, and to request additional time to pass the CPFT. ABCMR Record at 11-12. He was given a physical examination at the Academy on June 22, 1999, and found to be in "excellent health/condition and fit for duty." Id. at 12. The Army then initiated separation paperwork on June 24, 1999, to disenroll Plaintiff from the Academy. Compl., ¶ 19 This separation was halted when Plaintiff passed the CPFT in August 1999. Id., ¶ 22. On February 22, 2000, Plaintiff received a limited-duty medical excusal for a week due to an ingrown toenail. ABCMR Record at 12-13. On April 3, Plaintiff once again was placed on a no-running profile with a knee injury. Id. at 13. Although he was found fit for duty two weeks later, he subsequently failed the May 5 CPFT, this time falling short in both the push-ups and running portions of the test. Id. Because of an ingrown toenail, he could not take the retests scheduled between late May and mid-September 2000. Compl., ¶ 25. On October 13, 2000, Plaintiff met with a counselor regarding his physical fitness performance. ABCMR Record at 14. He was informed that he would be recommended for separation once again should he fail the retests. Id. He took the CPFT in October 27, 2000, and did not pass either the push-ups or running portion. Id. In response, the Army initiated disenrollment proceedings. Compl., ¶ 27. In January 2001, Plaintiff was examined for lower back pain and once again given a limited medical excusal. ABCMR Record at 15.

In April 2001, Plaintiff was disenrolled from the Academy. Compl., ¶ 31. His separation from the Army was finalized two years later, on April 28, 2003, when he was honorably discharged. Id., ¶6; ABCMR Record at 16. After Plaintiff left the Academy, the Army determined that he owed the government $137,630 for his failure to fulfill his contractual obligations. Compl., ¶ 37. Plaintiff has thus far repaid $6,000 through wage and federal income tax garnishment. Id., ¶ 39. Plaintiff subsequently requested that the ABCMR correct his records to show that he did not owe this debt to the government. Id., ¶ 40. On July 26, 2007, the ABCMR denied his petition. See ABCMR Record. This decision is what the present suit asks the Court to overturn.*fn1

II.Legal Standard

Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). The mere existence of a factual dispute, by itself, is insufficient to bar summary judgment. Liberty Lobby, 477 U.S. at 248. To be material, the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier of fact could find for the non-moving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.Cir. 1987); Liberty Lobby, 477 U.S. at 251-52 (holding that the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law").

Although styled Motions for Summary Judgment, the pleadings in this case more accurately seek the Court's review of an administrative decision. The standard set forth in Rule 56(c), therefore, does not apply because of the limited role of a court in reviewing the administrative record. See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006) (citing National Wilderness Inst. v. United States Army Corps of Eng'rs, 2005 WL 691775, at *7 (D.D.C. 2005); Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995), amended on other grounds, 967 F. Supp. 6 (D.D.C. 1997)). "[T]he function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did." Id. (internal citations omitted). Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review. SeeRichards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977), cited inBloch v. Powell, 227 F. Supp. 2d 25, 31 (D.D.C. 2002), aff'd, 348 F.3d 1060 (D.C. Cir. 2003).

The Administrative Procedure Act "sets forth the full extent of judicial authority to review executive agency action for procedural correctness." F.C.C. v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1810 (2009). It requires courts to "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." 5 U.S.C. § 706(2)(A). This is a "narrow" standard of review as courts defer to the agency's expertise. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency is required to "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. (internal quotation omitted). The reviewing court "is not to substitute its judgment for that of the agency," id., and thus "may not supply a reasoned basis for the agency's action that the agency itself has not given." Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86 (1974) (internal quotation omitted). Nevertheless, a decision that is not fully explained may be upheld "if the agency's path may reasonably be discerned." Id. at 286. The court should focus its review on the "administrative record already in existence, not some new record made initially in the reviewing court." See Camp v. Pitts, 411 U.S. 138, 142 (1973).

III.Analysis

Plaintiff maintains that the ABCMR acted arbitrarily and capriciously when it affirmed the Army's decision to seek recoupment of more than $130,000 from him for failing to complete his obligations to the Army. He argues principally that the Board unlawfully ignored precedent, that it mistakenly concluded that his CPFT failures were voluntary, and that justice requires reversal of its decision. Because the Court agrees that the Board did not sufficiently distinguish its precedent, it need not at this time address the other issues.

A. Standard of Review

Before turning to a discussion of precedent, it is necessary to resolve the parties' dispute over the applicable standard of review. By statute, the Secretary of the Army "may correct any military record of [his] department when [he] considers it necessary to correct an error or remove an injustice." 10 U.S.C. ยง 1552(a)(1). This review is done through the ABCMR. Federal courts review final decisions made by the ABCMR under the APA. Baker v. Dep't of Army, 1998 WL 389097, at *1 (D.C. Cir. 1998) ("The district court has jurisdiction to review the ABCMR's refusal to correct military records, unless the claim is in essence one for ...


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