United States District Court, D. Columbia.
LTC RICHARD A. VARGUS, Plaintiff,
JOHN M. MCHUGH, SEC'Y OF THE ARMY, Defendant
For RICHARD A. VARGUS, LTC, Plaintiff: James R. Klimaski, KLIMASKI & ASSOCIATES, P.C., Washington, DC.
For JOHN M. MCHUGH, Secretary of the Army, Defendant: Wayne Holden Williams, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
Gladys Kessler, United States District Judge.
Plaintiff Lieutenant Colonel Richard A. Vargus (" Plaintiff" or " LTC Vargus" ) brings this action against Defendant Secretary of the Army John M. McHugh (" Defendant" or " the Government" ) to challenge decisions of the Army Board for Correction of Military Records (" ABCMR" or " the Army Correction Board" ) as arbitrary, capricious, unsupported by substantial evidence, or contrary to applicable law
or regulation under the Administrative Procedure Act (" APA" ), 5 U.S.C. § 706.
This matter is presently before the Court on Plaintiff's Motion to Compel Production of the Administrative Record [Dkt. No. 10]. Upon consideration of the Motion, Opposition (" Gov't's Opp'n" ) [Dkt. No. 12], and Reply [Dkt. No. 16], the entire record herein, and for the reasons stated below, Plaintiff's Motion to Compel Production of the Administrative Record is granted.
On May 30, 2014, Plaintiff filed his Complaint seeking review under the APA, 5 U.S.C. § 706, of two decisions by the Army Board for Correction of Military Records. The Army Correction Board first denied the relief Plaintiff sought on February 24, 2009, and denied his request for reconsideration on September 24, 2009.
The precise factual details of Plaintiff's claims before the Army Correction Board are complex, but the essential thrust is that the United States Army failed to properly classify LTC Vargus's area of specialization. That improper classification, according to LTC Vargus, deprived him of the opportunity for promotion to the rank of colonel.
On October 30, 2014, the Government filed a Motion to Dismiss (" Gov't's Mot. to Dismiss" ), contending that this Court lacks jurisdiction to hear Plaintiff's challenge, see Fed.R.Civ.P. 12 (b) (1), and that Plaintiff has failed to state a claim upon which relief can be granted, see Fed.R.Civ.P. 12(b) (6). The Government contends, among other things, that Plaintiff's request for reclassification presents a non-justiciable political question, that Plaintiff failed to exhaust available administrative remedies, that Plaintiff's claim is moot, and that Plaintiff is not entitled to the particular relief he has requested. In support of its Motion to Dismiss, the Government attached several exhibits, many of which were drawn from or rely on the Administrative Record underlying the ABCMR's proceedings.
On November 17, 2014, Plaintiff filed a Consent Motion for an Extension of Time to File an Opposition to Defendant's Motion to Dismiss [Dkt. No. 8], which the Court granted the next day.
On December 12, 2014, Plaintiff filed his Second Consent Motion to Extend Time to File [Dkt. No. 9]. In this Second Consent Motion, Plaintiff stated that " a dispute ha[d] arisen over the time to produce and file the [A]dministrative [R]ecord." Accordingly, Plaintiff would " shortly file a motion to compel production of the [A]dministrative [R]ecord[,]" which Defendant would oppose. Id. Plaintiff suggested that " the Court hold [Plaintiff's Opposition] to [Defendant's] Motion to Dismiss in abeyance until 30 days after the administrative record is ...