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Remmie v. Mabus

United States District Court, District of Columbia

October 15, 2012

Timothy A. REMMIE, Plaintiff,
v.
Hon. Raymond MABUS, Secretary of the Navy, Defendant.

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[Copyrighted Material Omitted]

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Courts may not accept appellate counsel's post hoc rationalizations for agency action.

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David Patrick Sheldon, Law Office of David P. Sheldon, Washington, DC, for Plaintiff.

Rhonda Lisa Campbell, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, District Judge.

Plaintiff Timothy A. Remmie enlisted in the Navy in 1978. In 1993, he was involuntarily discharged after his former wife accused him of sexually abusing their daughter, accusations later found to be unsubstantiated. For the ensuing 19 years, Remmie has been engaged in repeated efforts to correct his military records before the Board for the Correction of Naval Records. In 1999, he was permitted to re-enlist in the Navy, and he served until retiring in 2006. In 2007, he petitioned the BCNR for a variety of forms of relief. The Board's 2008 decision, however, granted him only some of what he sought. Plaintiff then brought this action against Raymond Mabus, Secretary of

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the Navy, under the Administrative Procedure Act, 5 U.S.C. § 551 et seq., challenging the Board's decision to deny certain of his requests. Both parties have now moved for Summary Judgment. Because the Court finds that the Board did not adequately explain its 2008 decision, it will remand the matter to the Secretary for further clarification.

I. Background

Plaintiff enlisted in the Navy in 1978. See AR 835, 907, 934-35, 790. In 1990, he and his wife agreed to file for divorce. See Compl., ¶ 10. During the bitterly contested custody battle that followed, see AR 265, the former Mrs. Remmie accused Plaintiff of sexually abusing their three-year-old daughter, an allegation he vigorously denied. See Compl., ¶ 14. Although Plaintiff was not charged with any crime, the Virginia Beach Social Services Department separately determined that Plaintiff had abused his daughter. Id., ¶¶ 16-17.

On August 12, 1992, the Navy's Family Advocacy Program (FAP) Case Review Subcommittee determined that sexual abuse was " substantiated." See AR 220, 364. Relying on the subcommittee's findings, the FAP formally recommended Plaintiff be processed for separation. He was involuntarily discharged on June 10, 1993, and his name and information were placed in the Navy's Central Registry of child- and domestic-abuse incidents. See AR 771. A Virginia state court subsequently granted Plaintiff's petition for divorce, concluding that the alleged child abuse had not been shown and that the allegations had arisen from the contentious custody battle. See AR 265.

This unfortunate backdrop set in motion Plaintiff's nearly two-decade-long effort to clear his name. See Compl., ¶¶ 34-94. On April 13, 1995, Plaintiff submitted a request to the BCNR seeking a discharge upgrade to " honorable," reinstatement, back pay, credit for time lost, and promotion with his peers. See AR 518-526. The BCNR's June 3, 1997, decision granting Plaintiff partial relief was approved by the Secretary's office on June 11, 1998. See AR at 225-31, 245-50. In September 1999, Plaintiff was allowed to reenlist in the Navy, see AR 732, and served uneventfully until his retirement in April 2006. See AR 692-694.

In the intervening years, Plaintiff attempted to have his name and information deleted from the Navy's Central Registry and to obtain additional relief from the BCNR. See Compl., ¶¶ 49-94. He ultimately made another formal application in May 2007 to the BCNR seeking, among other things, removal of his name from the Central Registry, retroactive promotion, and retroactive reenlistment. See AR 10-13. His application was largely denied on June 16, 2008. See AR 131. Plaintiff's name was finally deleted from the registry on June 26, 2008, after Assistant General Counsel Robert T. Cali found that the BCNR's earlier recommendation was " untenable" and ordered Plaintiff's name removed. See AR 130. In 2010, Plaintiff filed a complaint in the Court of Federal Claims, seeking substantial money damages he allegedly incurred as a result of the Board's 2008 decision denying, e.g., his request for retroactive promotion. See Remmie v. United States, 98 Fed.Cl. 383 (Fed.Cl.2011). The Claims Court dismissed Plaintiff's suit as barred by the statute of limitations. Id. at 389.

Plaintiff next brought this action in June 2011 under the Administrative Procedure Act, seeking, inter alia, additional corrections to his military records and retroactive reenlistment and promotion or, in the alternative, a remand to the BCNR for further ...


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