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Bradley v. Spencer

United States District Court, D. Connecticut

April 11, 2019

KATRINA BRADLEY, Plaintiff,
v.
RICHARD V. SPENCER, Defendant.

          RULING AND ORDER

          ROBERT N. CHATIGNY, UNITED STATES DISTRICT JUDGE

         Plaintiff Katrina Bradley brings this action under the Fifth Amendment Due Process Clause and the Administrative Procedure Act (“APA”) challenging a decision of the Board for Correction of Naval Records (“BCNR”) denying her application for correction of her naval record. She seeks an upgrade of her discharge status or a reversal and remand to the agency with instructions for further proceedings. Defendant admits that the BCNR erred by failing to consider the Military Whistleblower Protection Act (“MWPA”) and moves for a voluntary remand.[1] For reasons explained below, defendant's motion is granted.

         I. Background

         The complaint alleges the following. Plaintiff, who is African American and gay, enlisted in the Navy in 1994. Shortly after she enlisted, she was the victim of racial profiling by military police officers and sexual harassment by one of her male superiors. The sexual harassment made her feel especially vulnerable as a gay woman who had to be closeted at work due to the military's then-current Don't Ask, Don't Tell policy. She filed a formal sexual harassment complaint, but the Navy failed to adequately investigate the officer. Plaintiff's harasser made retaliatory statements to her in response to the complaint, including telling her that she had “messed up” by filing it and that she would regret doing so. Moreover, after she filed the complaint, her supervisors treated her poorly and targeted her for discipline. She received non-judicial punishment for four infractions: leaving her place of duty and watching a movie; being tardy to a “Captain's Call”; falling asleep on duty; and failing to pay her phone bill. Shortly thereafter, command gave her administrative counseling and confined her to barracks, during which time her harasser visited and taunted her. Formal discharge proceedings followed. The harassing officer was involved in the process leading to the discharge decision. In 1996, the Navy discharged plaintiff under Other-than-Honorable (“OTH”) conditions following a recommendation for “Administrative Separation by reason of Misconduct due to Commission of a Serious Offense.”

         In spring 2016, plaintiff applied to the BCNR to correct her naval record to reflect a more favorable discharge. In support of her application, she submitted her own affidavit as well as a declaration from a woman who was her romantic partner in 1995. She did not dispute the underlying misconduct but alleged that the OTH discharge was an excessive response to her conduct and that the real reasons for the OTH discharge were discrimination and retaliation.

         The BCNR waived the time limit applicable to the filing of plaintiff's application but denied the application, finding that her “punishment was a direct result of [her] actions.” Regarding her claims that she was sexually harassed and discriminated against, the BCNR found there was “no evidence in the record, and [she] provided none, to support [her] assertions.” The BCNR decision did not discuss a potential retaliation claim, the MWPA, or several of plaintiff's other arguments.

         II. Legal Standard

         Courts review “decisions of boards for correction of military records in light of familiar principles of administrative law.” Piersall v. Winter, 435 F.3d 319, 321 (D.C. Cir. 2006) (internal quotation marks omitted) (collecting cases). When a district court reviews a final agency action under the APA, it “sits as an appellate tribunal.” PPG Indus., Inc. v. United States, 52 F.3d 363, 365 (D.C. Cir. 1995) (quoting Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1225 (D.C. Cir. 1993)). The court may “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, ” or that are “unsupported by substantial evidence.” 5 U.S.C. § 706(2). “Under settled principles of administrative law, when a court reviewing agency action determines that an agency made an error of law, the court's inquiry is at an end: the case must be remanded to the agency for further action consistent with the corrected legal standards.” PPG Indus., 52 F.3d at 365 (citations omitted); see also Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (“If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”).

         Administrative agencies have the inherent power to reconsider their own decisions. Dun & Bradstreet Corp. Found. v. U.S. Postal Serv., 946 F.2d 189, 193 (2d Cir. 1991) (collecting cases). Voluntary remand is usually appropriate when new evidence becomes available, see Ethyl Corp. v. Browner, 989 F.2d 522, 523-24 (D.C. Cir. 1993), or when intervening events, such as a new legal decision or passage of legislation, could “affect the validity” of the original decision, SKF USA Inc. v. United States, 254 F.3d 1022, 1028 (Fed. Cir. 2001) (citing Ethyl Corp., 989 F.2d at 524). However, “[e]ven in the absence of intervening events, upon an agency's remand request, the reviewing court still has discretion over whether to remand.” Sierra Club v. Van Antwerp, 560 F.Supp.2d 21, 23 (D.D.C. 2008) (citing Citizens Against Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 417 (6th Cir. 2004) (“Although there is no allegation of new evidence or a change in the law in the present case, the same considerations of judicial efficiency apply.”)). In such a case, “if the agency's concern is substantial and legitimate, a remand is usually appropriate.” SKF USA Inc., 254 F.3d at 1029. Nevertheless, an agency's voluntary request for remand may be denied under limited circumstances. For example, “[a] remand may be refused if the agency's request is frivolous or in bad faith.” Id. (citing Lutheran Church-Mo. Synod v. FCC, 141 F.3d 344, 349 (D.C. Cir. 1998)). Moreover, a court may decline to grant a remand if it is clear that a remand would be futile. E.g., NLRB v. Am. Geri-Care, Inc., 697 F.2d 56, 64 (2d Cir. 1982) (upholding an administrative decision where “reversal and remand would be an idle and useless formality . . . because there is not the slightest doubt that the [agency] would simply reaffirm its order” (citation and internal quotation marks omitted)); see also A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1489 (D.C. Cir. 1995) (declining to remand where “[t]here is not the slightest uncertainty as to the outcome of a[n] [agency] proceeding” (alterations in original) (quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969))).[2]

         III. Discussion

         A. Voluntary Remand

         Remand is appropriate here. The BCNR erred by failing to address the applicability of the MWPA when the agency reviewed plaintiff's application. The parties agree that under the BCNR's own regulations, 32 C.F.R. § 723.3(e)(4), the BCNR was required to address the applicability of the MWPA. See Def.'s Motion, ECF No. 13, at 6; Pl.'s Opp., ECF No. 14, at 4. Defendant's admission of legal error is a “substantial and legitimate” concern justifying a voluntary remand. See Citizens Against Pellissippi Parkway Extension, 375 F.3d at 416 (noting that it may be “an abuse of discretion to prevent an agency from acting to cure the very legal defects asserted by plaintiffs challenging federal action”).

         Plaintiff opposes a remand on the ground that it would be futile because the BCNR often fails to adequately review applications and rarely finds MWPA violations. Pl.'s Opp., ECF No. 14, at 6-10.[3] Even assuming the Court may consider the statistical evidence plaintiff cites, which defendant disputes, she has not shown that remand would be futile. This is not a case where “[t]here is not the slightest uncertainty as to the outcome” on remand, A.L. Pharma, 62 F.3d at 1489, or where “reversal and remand would be an ‘idle and useless formality' . . . because there is not the slightest doubt that the [BCNR] would simply reaffirm its order, ” Am. Geri-Care, 697 F.2d at 64. Remand is appropriate when, as here, there is some chance the agency will come to a different conclusion. E.g., Nat'l Nutritional Foods Ass'n v. FDA, 504 F.2d 761, 798 & n.65 (2d Cir. 1974) (remanding to the FDA to allow for cross-examination of an expert because the court “simply cannot assume that if [the expert's testimony] had been shattered by vigorous cross-examination, however unlikely that may be, the FDA or we would reach the same result”).

         Plaintiff also argues that remand is inappropriate because it would delay the proceedings. She cites no cases holding that an expected delay in proceedings provides a court with a sufficient basis for denying a voluntary remand. See Pl.'s Opp., ECF No. 14, at 10-12. An appellate tribunal may always hasten the final resolution of a case by declining a remand and undertaking to decide for itself all the issues presented; but, like any appellate body, this Court “is not generally empowered to conduct a de novo inquiry ...


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