COLLEEN KOLLAR-KOTELLY, 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,
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
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,
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;
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.
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 out-side 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 Club, 560 F.Supp.2d at 23. A court, however, should deny an agency's request to remand where the request is "frivolous or in bad faith." Sierra Club, 560 F.Supp.2d at 23 (citing Lutheran Church-Missouri Synod v. FCC, 141 F.3d 344, 349 (D.C.Cir. 1998)).
Defendant requests voluntary remand of Plaintiff's claims to the ABCMR so that the ABCMR may "fully consider the issues raised in Plaintiff's application for correction of his records." Def.'s Mot. at 1. Defendant argues that voluntary remand is appropriate so that the ABCMR "can address the inadequacies of its August 12, 2014 decision raised by Plaintiff in his complaint." Id. at 3. Specifically, under the voluntary remand sought by Defendant, the ABCMR would consider Plaintiff's allegations that (1) the ABCMR
Courts in this circuit commonly grant motions for voluntary remand, "preferring to allow agencies to cure their own mistakes rather than wasting the courts' and the parties' resources reviewing a record that both sides acknowledge to be incorrect or incomplete." See Ethyl Corp. v. Browner, 989 F.2d 522, 524 n. 3 (D.C.Cir.1993) (citing cases); Carpenters Indus. Council, 734 F.Supp.2d at 132; Sierra Club, 560 F.Supp.2d at 23. As such, "if the agency's concern is substantial and legitimate, a remand is usually appropriate." SKF, 254 F.3d at 1029. Here, Defendant raises several "substantial and legitimate" concerns about the ABCMR's August 12, 2014 decision.
First, Defendant seeks voluntary remand in order to correct a mistake made by the ABCMR, namely that the ABCMR applied the incorrect regulation in determining whether Plaintiff's children were eligible to attend the Ft. Buchanan school. See Def.'s Mot. at 2.
Despite Plaintiff's own allegations, Plaintiff now opposes Defendant's motion for voluntary remand, arguing that the ABCMR's application of the wrong regulation is "immaterial" to the primary defect of the ABCMR's decision and to the relief sought by Plaintiff. See Pl.'s Opp'n at 5. Plaintiff contends that the dispositive issue in this case is that the ABCMR "abrogated the proper standard of review, and imposed an unfair and unreasonable burden" on Plaintiff to "produce evidence proving that the Registrar committed an error." Id. Plaintiff contends that upon remand, the ABCMR will apply the "same erroneous standard but with reference to the correct regulation." Id. In apparent support of this argument, Plaintiff cites the D.C. Circuit's decision in Lutheran Church-Missouri Synod v. F.C.C., 141 F.3d 344, 349 (D.C.Cir.1998). Nowhere in that case, however, does the D.C. Circuit state the propositions argued by Plaintiff. Rather, in Lutheran Church-Missouri Synod v. F.C.C., the D.C. Circuit refused an agency's "novel, last second motion" for voluntary remand to reconsider the agency's decision in light of a non-binding policy statement that was directed only towards the future. Id. The D.C. Circuit chided the agency's remand request, stating that "the Commission has on occasion employed some rather unusual legal tactics when it wished to avoid judicial review, but this ploy may well take the prize." Id. Here, Defendant is seeking remand to correct a specific and identifiable mistake made by the ABCMR that substantially affected the ABCMR's analysis in its August 12, 2014 decision. Def.'s Reply at 2. Defendant's motion can hardly be characterized as "an unusual legal tactic" made in avoidance of judicial review. By contrast, Defendant's motion for voluntary remand is the type of request commonly granted by courts in this circuit. See Ethyl Corp., 989 F.2d at 524 n. 3; Carpenters Indus. Council, 734 F.Supp.2d at 132; Sierra Club, 560 F.Supp.2d at 23. Furthermore, by requesting that the Court deny Defendant's motion in order to examine the standard of review applied in the ABCMR's August 12, 2014 decision, Plaintiff is requesting that the Court review a record that both sides acknowledge is incorrect and incomplete. See Ethyl Corp., 989 F.2d at 524. The D.C. Circuit has made clear that reviewing such a record would be an inefficient use of the courts' and the parties' resources. See id. Accordingly, where voluntary remand would forestall such a scenario, the appropriate action is to grant the motion to remand. See id.
Defendant also seeks voluntary remand in order to address an issue that the ABCMR failed to address in its August 12, 2014 decision, namely the Army Criminal Investigation Command's referral of the Report of Investigation to the Defense Finance and Accounting Service. See Def.'s Mot. at 2. Defendant's concern regarding the ABCMR's failure is "substantial and legitimate" and certainly not "frivolous or in bad faith." Sierra Club, 560 F.Supp.2d at 23. The ABCMR failed to review the Criminal Investigation Command's referral of the Report of Investigation because it believed that aspect of Plaintiff's request was still pending an operational review by
Against the grain of these allegations, Plaintiff now argues that voluntary remand is not appropriate because the ABCMR does not have authority to grant any relief with respect to the referral except through an amendment to the Report of Investigation. Pl.'s Opp'n at 6. Plaintiff contends in his opposition brief that the ABCMR's authority extends only to the correction of military records, but not to actions taken by the Criminal Investigation Command, including the allegedly improper disclosure of Plaintiff's records to the Defense Finance and Accounting Service. Id. Plaintiff goes so far as to argue that it "would be pointless" to remand the case so that the ABCMR can review the referral. Id. at 7.
For the foregoing reasons, the Court GRANTS Defendant's [10] Motion for a Voluntary Remand and Motion for Stay of Proceedings. Accordingly, the Court remands to the ABCMR for further proceedings consistent with this Memorandum Opinion. Pursuant to Defendant's request, the Court remands so that the ABCMR may address the inadequacies of its August 12, 2014 decision raised by Plaintiff in his complaint. The ABCMR shall consider, among other issues, Plaintiff's allegations that (1) the ABCMR applied the incorrect regulation when determining that Plaintiff's children were not eligible to attend the Ft. Buchanan School and (2) the ABCMR failed to review the Criminal Investigation Command's referral of the Report of Investigation to the Defense Finance and Accounting Service.
This case will be stayed pending the ABCMR's final decision on remand.
An appropriate Order accompanies this Memorandum Opinion.