United States District Court, D. Columbia
CHRISTOPHER J. CODE, Plaintiff,
JOHN M. McHUGH, SECRETARY OF THE ARMY, Defendant
CHRISTOPHER J. CODE, Plaintiff: William Francis Savarino,
LEAD ATTORNEY, Andrew Kenneth Wible, COHEN MOHR LLP,
JOHN M. MCHUGH, Defendant: Derrick Wayne Grace, LEAD
ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF
COLUMBIA, Washington, DC; Wayne Holden Williams, LEAD
ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division,
KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
filed suit on January 9, 2015 against Defendant John M.
McHugh, Secretary of the Army (" Defendant" ).
Plaintiff seeks a judicial review of a final decision of the
Army Board for Correction of Military Records ("
ABCMR" ) denying Plaintiff's request to correct his
military records and determine that he does not owe a debt of
$44,200 to the Department of Defense. Presently before the
Court is Defendant's  Motion for a Voluntary Remand
and Motion for Stay of Proceedings. Upon consideration of the
pleadings, the relevant legal authorities, and
the record as a whole, the Court GRANTS Defendant's
Motion for a Voluntary Remand and Motion for Stay of
Proceedings. For the reasons stated below, the Court remands
to the ABCMR for further proceedings consistent with this
Memorandum Opinion. This case will be stayed pending the
ABCMR's final decision on remand.
stated in the complaint, Plaintiff was a Lieutenant in the
Navy until his honorable discharge in February 2009, and
currently is a member of the Navy Individual Ready Reserves.
Compl. ¶ 3. On or shortly after September 30, 2010,
Plaintiff received a letter from the Defense Finance and
Accounting Service, stating that he owed a debt to the
Department of Defense (" DoD" ) in the amount of
$44,200.00. Id. ¶ 43. The letter indicated that
the debt was due to a larceny charge reported in a Report of
Investigation prepared by the Army Criminal Investigation
Command. Id. This letter was Plaintiff's first
notice of the alleged debt and the larceny charge.
investigation performed by the Army Criminal Investigation
Command concerned events surrounding Plaintiff's
enrollment of his children in a DoD school located at Ft.
Buchanan, San Juan, Puerto Rico (" the Ft. Buchanan
school" ) between 2007 and 2008. Id. ¶
¶ 29-40. It was alleged that Plaintiff had fraudulently
enrolled his children in the school by providing false
information on the official application. Id. The
Report of Investigation concluded that there was probable
cause to believe that Plaintiff had committed the alleged
crimes, resulting in a loss to the government
in the amount of $44,200.00. Id. ¶ 31. On
December 4, 2008, the U.S. Attorney's Office, San Juan,
Puerto Rico, declined prosecution of Plaintiff, referring any
further action to DoD or Plaintiff's chain of command.
Id. ¶ 39. No disciplinary or adverse
administrative action was taken by Plaintiff's chain of
command against him as a result of the investigation.
Id. ¶ 40.
about September 28, 2010, the Army Criminal Investigation
Command " presented documentation and a structured time
line of events" to the Defense Finance and Accounting
Service with the intent that it pursue collection of the
$44,200.00. Id. ¶ 42. The Defense Finance and
Accounting Service " accepted financial responsibility
for the $44,200.00 loss" and agreed to collect the debt
from Plaintiff. Id. After Plaintiff protested the
debt, the Defense Finance and Accounting Service informed
Plaintiff that the debt would remain valid until the Army
Criminal Investigation Command overturned its prior
determination. Id. ¶ 52.
January 2013, pursuant to the Privacy Act, Plaintiff formally
requested that the Army Criminal Investigation Command amend
the Report of Investigation and conduct an operational review
in connection with the referral of the Report of
Investigation to the Defense Finance and Accounting Service.
Id. ¶ 42. On April 9, 2013, the Army Criminal
Investigation Command denied Plaintiff's request for
amendment. Id. ¶ 49. In a second letter dated
May 3, 2013, the Army Criminal Investigation Command
addressed the referral issue, stating that it has " no
role in pursuit of debt collection," and that "
[a]ll appeals in regard to debt collection must be submitted
to [the Defense Finance and Accounting Service]."
Id. ¶ 51.
September 26, 2013, Plaintiff submitted his petition for the
correction of his military records to the ABCMR, appealing
the adverse decision of the Army Criminal Investigation
Command with respect to his Privacy Act request. Id.
¶ 51. Plaintiff requested the following relief from the
ABCMR: (a) that the Report of Investigation be expunged or
alternatively amended to show the offenses as "
unfounded" ; (b) that a " CRDA" filed with
respect to Plaintiff be expunged;  and (c) that the debt
assessed by the Defense Finance and Accounting Service be
cancelled. Id. ¶ 53. On August 12, 2014, the
ABCMR declined Plaintiff's requests and affirmed the Army
Criminal Investigation Command's decision to deny an
amendment to the Report of Investigation. Id. ¶
January 9, 2015, Plaintiff filed this action, alleging that
the ABCMR's decision violated the Administrative
Procedures Act, 5 U.S.C. § 701 et seq. ("
APA" ). Id. ¶ 57. Plaintiff argues that
the ABCMR's decision was arbitrary and capricious, an
abuse of its discretion, or otherwise not in accordance with
the law. Id. Plaintiff contends that the ABCMR's
decision was " rife with material errors,"
specifically that (1) the ABCMR cited and applied the wrong
regulation when describing the applicable policy governing
the eligibility of Plaintiff's children to attend the Ft.
Buchanan school; (2) the ABCMR disregarded the applicable
legal standard and applied an unreasonable burden of proof
with respect to the amendment of the Report of Investigation;
(3) the ABCMR ignored the presumption of administrative
regularity and required Plaintiff to disprove a potential
irregularity that may have explained the CRDA; and (4) the
ABCMR failed to address the referral of the Report of
Investigation to the Defense Finance and Accounting Service.
Id. ¶ 56.
April 22, 2015, Defendant filed the present motion for
voluntary remand, requesting that the ABCMR have the
opportunity to " address the inadequacies of its August
12, 2014 decision raised by Plaintiff in his complaint."
Def.'s Mot. at 3.
agencies have the inherent power to reconsider their own
decisions through a voluntary remand. Sierra Club v. Van
Antwerp, 560 F.Supp.2d 21, 23 (D.D.C. 2008). The
decision whether to grant an agency's request to remand
is left to the discretion of the court. Carpenters Indus.
Council v. Salazar, 734 F.Supp.2d 126, 132 (D.D.C.
2010). A court may grant an agency's request to remand
" (i) when new evidence becomes available after an
agency's original decision was rendered, or (ii) where
intervening events outside of the agency's control may
affect the validity of an agency's actions."
Carpenters Indus. Council, 734 F.Supp.2d at 132
(quoting SKF USA Inc. v. United States, 254 F.3d
1022, 1028 (Fed. Cir. 2001)). Even in the absence of new
evidence or intervening events, voluntary remand may be
appropriate where an " agency requests a remand (without
confessing error) in order to reconsider its previous
position," or where the agency " believes that its
original decision is incorrect on the merits and wishes to
change the result." SKF, 254 F.3d at 1029. In
such cases, voluntary remand is usually appropriate if the
agency expresses a " substantial and legitimate"
concern about the agency's earlier decision.
SKF, 254 F.3d at 1029, Sierra ...