MEMORANDUM OPINION
TANYA
S. CHUTKAN, UNITED STATES DISTRICT JUDGE
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.
I.
BACKGROUND INFORMATION
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.
II.
STANDARD OF REVIEW
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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