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Code v. McHugh

United States District Court, D. Columbia

October 19, 2015

CHRISTOPHER J. CODE, Plaintiff,
v.
JOHN M. McHUGH, SECRETARY OF THE ARMY, Defendant

          For CHRISTOPHER J. CODE, Plaintiff: William Francis Savarino, LEAD ATTORNEY, Andrew Kenneth Wible, COHEN MOHR LLP, Washington, DC.

         For 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, Washington, DC.

         MEMORANDUM OPINION

         COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

         Plaintiff 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 [10] Motion for a Voluntary Remand and Motion for Stay of Proceedings. Upon consideration of the pleadings,[1] 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.

         I. BACKGROUND

         As 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. Id.

         The 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,[2] 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.

         On or 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.

         In 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.

         On 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; [3] 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. ¶ 55.

         On 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.

         On 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.

         II. LEGAL STANDARD

         Administrative 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 ...


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