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Keats v. Sebelius

United States District Court, District of Columbia

April 23, 2019

RONALD KEATS, et al., Plaintiffs,



         Plaintiffs Ronald and Kathleen Keats bring this action pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, against the United States Department of Health and Human Services (“HHS”) challenging the agency's denial of Ronald's request for voluntary retirement as arbitrary and capricious.[1] Both parties have moved for summary judgment. For the reasons set forth below, the court will deny both motions without prejudice. See ECF Nos. 46, 61.


         Keats was a nurse who was appointed as an HHS Public Health Service (PHS) Reserve Corps officer in February 1997. Defs. Statement of Undisputed Facts (“SOF”) ¶ 2.[2] “Overseen by the Surgeon General, the U.S. [PHS][3] is a diverse team of more than 6, 500 highly qualified . . . public health professionals.” Pharm. Research & Mfrs. of Am. v. U.S. Dep't of Health & Human Servs., 43 F.Supp.3d 28, 40 n.9 (D.D.C. 2014) (citation omitted). “Commissioned Corps officers are involved in health care delivery to underserved and vulnerable populations, disease control and prevention, biomedical research, food and drug regulation, mental health and drug abuse services, and response efforts for natural and man-made disasters.”[4]

         In April 2010, an employee at the Aberdeen, South Dakota Federal building, where Keats was assigned, found a compact disc (CD), containing over 2, 000 images of child pornography. Defs. SOF ¶ 10. The following month, federal agents seized an external computer hard drive and Keats' federal government-issued laptop computer from his office. Id. ¶ 11. A forensic analysis of the external hard drive found images of child pornography, that included filenames such as “ready to be raped again” and “Young Rough and Rape.” Id. ¶¶ 10-11. Authorities were able to link the hard drive to Keats' government-issued laptop, as well as the CD found in the building. Id. ¶ 13.

         On the day of the seizure, federal agents interviewed Keats at his home and conducted a search, at which time he turned over four CDs that contained more than 1000 images of child pornography (including 500 images of prepubescent children), as well as video images of Keats masturbating in his government office. Id. ¶ 12. During the interview, he conceded that some of the children depicted in the pornography he had downloaded appeared to be underage. Id. ¶ 14. The following day, PHS placed Keats on non-duty status with pay and assigned him to home duty. Id. ¶ 15. According to PHS, federal regulations required that the agency refrain from investigating the criminal allegations to avoid compromising the ongoing criminal proceedings. Id. ¶ 16.

         Several months later, Keats left his assigned duty station and was designated absent without leave. Id. ¶ 17. In December 2010, he was indicted and arrested on three counts of transportation of child pornography and one count of possession of child pornography. Id. ¶¶ 18-19. The following month, Keats filed the first of at least eight motions to continue his criminal case. See United States v. Keats, 10-cr-10046-CBK (D.S.D.), ECF No. 13; Defs. SOF ¶ 20. The Judge granted the motions, ultimately continuing the matter into 2012. Keats, 10-cr-10046-CBK, ECF Nos. 14, 19, 23, 35, 37, 40, 57. In the midst of these continuances, on July 7, 2011, Keats reached nineteen years of service creditable toward retirement. See Defs. SOF ¶ 21.

         On January 12, 2012, Keats applied for voluntary retirement effective July 1, 2012, which was when he would become eligible for retirement with twenty years of service. Id. Although Keats' supervisor endorsed the retirement request, Scott Giberson (a Director-level official) refused to do so. Id. ¶ 22; Administrative Record (“AR”) 1681-82. Giberson prepared a memorandum explaining that he did not have the authority to deny the request, but had the authority to refer the matter to the retirement board-which he did-with a recommendation that proceedings be stayed pending resolution of the criminal charges. AR 1682. Giberson explained the nature of the charges against Keats and noted that the criminal case had not been set for trial because the court had granted Keats' requests for continuances. Id. 1681-82. Giberson further noted that, if proven, the charges would constitute a violation of the public trust, nursing professional standards and Corps values, thereby bringing dishonor to Keats and the agency. Id. 1682.

         On March 23, 2012, Keats entered into a plea agreement on the child pornography charges; his plea hearing was set for April 17. Defs. SOF ¶ 25; AR 2055-57. Several days later, he filed a motion to continue the plea hearing until after his requested retirement date of July 1, but the judge set the hearing for April 23. AR 2055-57; see Id. 2058-59.

         Around this same time, the HHS Assistant Secretary approved Giberson's request to convene a retirement board for Keats, but stayed proceedings pending final resolution of the criminal case. Defs. SOF ¶¶ 24-26. HHS notified Keats of its decision and, several days before the scheduled plea hearing, Keats filed a grievance, arguing that no adverse administrative actions, nor any adverse criminal conviction or sentencing “will have occurred prior to the requested retirement date.” Id. ¶¶ 27-28; AR 1700. Keats' grievance letter did not mention that he was scheduled to enter the plea in just a few days. AR 1700-03.

         Approximately one month after he pleaded guilty, Keats voluntarily surrendered his nursing license. Defs. SOF ¶ 31; see AR 7-11. On June 7, 2012, HHS denied Keats' retirement grievance, citing the “serious nature” of the crimes to which Keats had pled guilty and noting that a final decision would be made after the completion of the criminal proceedings. Defs. SOF ¶¶ 30, 32; AR 1699. Keats became eligible for retirement on July 1 and his sentencing hearing was held on July 23, 2012. Keats, 10-cr-10046-CBK, ECF No. 76. The Final Judgment and Commitment Order in his criminal case was entered on July 24, 2012. Id., ECF No. 78.

         Giberson subsequently sent a memorandum to the HHS Secretary indicating that the retirement board had been prepared to review Keats' retirement request in the event he had not been convicted; however, because of the conviction, there was no need to convene the board. AR 1707-10. Giberson also opined that it would be “unprecedented to reward” Keats with retirement benefits, which included access to disability benefits, GI Bill educational benefits and medical treatment at VA hospitals. Id. 1709.

         On February 6, 2013, the Assistant Secretary cancelled the retirement board proceedings and terminated Keats. Defs. SOF ¶ 39. Later that year, the judge in the criminal proceeding denied Keats' motion to vacate, set aside, or correct the sentence. Id. ¶ 41. Keats unsuccessfully appealed the sentence and sought a hearing en banc, certiorari with the United States Supreme Court, and post-judgment relief, all without success. Keats, 10-cr-10046-CBK, ECF Nos. 90, 96, 99-100, 104.

         Keats filed this lawsuit in October 2013, and this court subsequently granted the parties' motion to stay proceedings to allow HHS to reconsider Keats' retirement application. ECF Nos. 1, 42. On September 28, 2015, Giberson sent a memorandum to the retirement board recommending that it deny Keats' retirement request. AR 2592-99. The retirement board subsequently recommended that the agency deny Keats' request and HHS accepted the board's recommendation, finding that his conduct discredited both Keats and the PHS. AR 2600-2602; Defs. SOF ¶ 45.


         In an APA action, the court's role at the summary judgment stage is to decide “as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.” Stuttering Found. of Am. v. Springer, 498 F.Supp.2d 203, 207 (D.D.C. 2007). A court must set aside an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The plaintiff bears the burden of establishing the invalidity of the agency's action. See Fulbright v. McHugh, 67 F.Supp.3d 81, 89 (D.D.C. 2014). The court's review is “highly deferential” and begins with a presumption that the agency's actions are valid. Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981). The court is “not empowered to substitute its judgment for that of the agency, ” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), but instead must consider only “whether the agency acted within the scope of its legal authority, whether the agency has explained its decision, whether the facts on which the agency purports to have relied have some basis in the record, and whether the agency considered the relevant factors, ” Fulbright, 67 F.Supp.3d at 89 (quoting Fund for Animals v. Babbitt, 903 F.Supp. 96, 105 (D.D.C.1995)).

         III. ANALYSIS

         PHS officers like Keats, who have completed twenty years of service but less than thirty years, “may be retired by the Secretary, with or without application by the officer, on the first day of any month after completion of twenty or more years of active service.” 42 U.S.C. § 212(a)(3); Commissioned Corps Instruction (“CC”) 43.8.1 § 6-3(c). The retirement regulations further provide that such retirements may occur involuntarily or voluntarily “at the discretion of the Corps.” CC43.8.1 § 6-3(a); CC23.8.5 § 6-1.

         A. Voluntary Retirement Procedures

         HHS regulations provide that voluntary retirement with less than thirty years of service “shall be approved only if the services of an officer can be relinquished without adverse effects on the continued and effective operation of” HHS. CC23.8.5 § 6-2. The regulations further provide that when evaluating a voluntary retirement request, the agency shall consider six factors:

a. “Supervisor's recommendation for approval or denial of the officer's request”;
b. “Effect of the retirement on continued and effective operation of the OPDIV/STAFF/non-HHS organization to which ...

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