Tindal v. McHugh

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEVEN TINDAL,
Plaintiff,
Civil Action No. 10-237 (BAH)
v.
Judge Beryl A. Howell
JOHN MCHUGH,
in his official capacity as Secretary of the Army,
Defendant.
MEMORANDUM OPINION
The plaintiff Steven Tindal brings this action against the defendant Secretary of the Army
pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 500, et seq., seeking to set
aside the decision of the Army Board for Correction of Military Records (“the Board” or “the
ABCMR”), which denied the plaintiff’s request to be reinstated to Reserve active status,
promoted to the rank of Lieutenant Colonel, and transferred to the Oregon Army National Guard.
The plaintiff served in an active-duty capacity in the United States Army for over twenty years.
Following his retirement in September 2002, he twice appealed to the Board, claiming that he
had filed a request to extend his active-duty service and thus that his retirement was an injustice
that required correction. The Board denied his appeals, and the plaintiff now seeks to overturn
the Board’s most recent denial as arbitrary and capricious and unsupported by substantial
evidence. Both parties have filed motions for summary judgment, and the plaintiff has also filed
a motion to supplement the administrative record with further evidence.
1
I. BACKGROUND
Since this is an administrative law case, the Court will first discuss the regulatory
framework underlying the agency’s decision before discussing the facts and the procedural
history.
A. Regulatory Framework
This case implicates a somewhat labyrinthine collection of United States Army personnel
regulations governing how soldiers are administratively processed, particularly when they reach
a certain maximum level of service. As discussed more fully below, the plaintiff was at all times
relevant to this lawsuit a member of the Army Active Guard Reserve (“AGR”), and so the Court
will discuss the Army’s personnel regulations as they apply to participants in the AGR program.
Under Army regulations, “[a]ll AGR officer personnel will be released from [active duty]
or [full-time National Guard duty] when they have attained 20 years and 1 month of qualifying
service for retirement purposes . . . unless they have been approved for voluntary retention under
[Army Regulation] 600-8-24.” Army Reg. 135-18 ¶ 4-12 (1996). 1 If a soldier wants to request
an extension of his active-duty service, known as “selective retention,” such a request “will be
submitted when the soldier completes 19 years of such service” and “will be sent through
command channels.” See id. The “command channels” through which such requests must be
sent depends upon whether the AGR soldier is serving in a federal or state chain of command. 2
1
The Court will cite all Army regulations as “Army Reg. __” rather than as “AR ___” to avoid confusion between
citations to Army regulations and citations the Administrative Record. The Court cites to the version of the
pertinent Army regulations that were in place in 2002, when the plaintiff retired.
2
The AGR program is a federal program that has both federal and state components due to “the murky and mystical
duality of the National Guard system.” See Bowen v. United States, 49 Fed. Cl. 673, 676 (2001). The AGR
program places Army National Guard and Army Reserve soldiers on either federal active-duty status, see 10 U.S.C.
§ 12310, or full-time National Guard duty, see 32 U.S.C. § 302(f), in order provide full-time support “for
organizing, administering, recruiting, instructing, or training the [Army National Guard] or the [Army Reserve],” see
Army Reg. 135-18 ¶ 1-1. “Thus, the AGR includes a member of the [Army National Guard] serving on full-time
National Guard duty in state status, and it also includes the same member when he or she is called to active duty in
his or her federal status.” Freeman v. United States, 98 Fed. Cl. 360, 364 (2011).
2
See id. For an AGR soldier serving in the Army National Guard (i.e., the state chain of
command), the requests would be sent to the National Guard Bureau (“NGB”). See id.Retirement from the AGR based upon maximum years of service can be either voluntary
or involuntary. “A mandatory retirement is required by law and is initiated by [the Headquarters
of the Department of the Army].” Army Reg. 600-8-24 ¶ 6-24a (2002). On the other hand, “a
voluntary nonwaiver retirement” may be requested by an officer, and “it is Army policy to
approve a voluntary nonwaiver retirement application when an officer will have served at least
20 years of active Federal service as of the requested retirement date.” Id. ¶ 6-14a; see also id.
¶ 6-20 (outlining steps for processing a voluntary retirement application). Hence, voluntary
retirement in the AGR program is initiated by the soldier who applies for such retirement, and
involuntary retirement is initiated by Army Headquarters and proceeds by operation of law. The
timing of an AGR soldier’s retirement, however, is not necessarily correlated to whether the
retirement was voluntary or involuntary because “[a]n officer may request retirement and be
retired voluntarily on his or her mandatory retirement date.” See id. ¶ 6-24a; see also id. ¶ 2-23d
(“The officer’s separation will not be delayed past the scheduled release date due to
nonsubmission or late submission of a voluntary retirement request.”).
Related to both retirement and selective retention, a soldier is required to meet certain
minimum medical and fitness criteria. For example, in order for a soldier to be retained and
“selected for subsequent duty in the AGR Program,” he “must possess” certain minimum
qualifications, including certain “Physical and Medical” qualifications. See Army Reg. 135-18
¶ 2-4b & tbl. 2-4; see also Army Reg. 40-501 ch. 3 (2002) (laying out “Medical Fitness
Standards for Retention and Separation, Including Retirement”). These qualifications include
“body composition/weight control standard[s]” and “medical fitness standards.” Army Reg.
3
135-18 tbl. 2-4. Generally, medical evaluation of whether active-duty soldiers meet minimum
physical requirements is only initiated “when a question arises as to the Soldier’s ability to
perform the duties of his or her office, grade, rank, or rating because of physical disability” or a
soldier’s commanding officer “believes that a Soldier of their command is unable to perform the
duties of their office, grade, rank, or rating because of a physical disability.” See Army Reg.
635-40 ¶¶ 4-6, 4-8 (1990).
As to retirement, “[m]edical examination prior to retirement is required,” and “will be
scheduled not earlier than 4 months prior to the retirement date.” Army Reg. 600-8-24 ¶ 6-6.
“When a soldier is being processed for separation or retirement for reasons other than physical
disability,” however, “continued performance of assigned duty commensurate with his or her
rank or grade until the solder is scheduled for separation or retirement, creates a presumption that
the soldier is fit.” Army Reg. 635-40 ¶ 3-2(b)(2). This presumption may be overcome if, inter
alia, “[a]n acute, grave illness or injury or other significant deterioration of the soldier’s physical
condition occurred immediately prior to, or coincident with processing for separation or
retirement for reasons other than physical disability and which rendered the soldier unfit for
further duty.” Id. ¶ 3-2b(2)(b).
In addition to these general medical and fitness requirements, there are two Army
administrative systems relevant to this case, which are designed to evaluate soldiers’ fitness for
duty. The first is called the Physical Performance Evaluation System (“PPES”), which is
“designed to evaluate soldiers who have been issued a permanent physical profile with a
numerical designator of 3 or 4 . . . to determine if they have the physical ability to satisfactorily
perform their primary military occupational specialty (PMOS) . . . worldwide and in a field
4
environment.” See Army Reg. 600-60 ¶ 2-1. 3 The PPES establishes an “administrative
screening board” called the Military Occupational Specialty/Medical Retention Board
(“MMRB”) to make this determination. Id. Referral to an MMRB is required, inter alia, when a
soldier is issued a permanent physical profile with a numerical designator of 3 or 4, see id. ¶ 2-2,
though referral to an MMRB is not per se required as a part of the selective retention process. A
soldier is exempted from mandatory referral to an MMRB if he is “[a]n active duty officer who
is within 1 year of [the] date of mandatory retirement for age or length of service” unless he has
“sufficient time remaining to be eligible for reassignment and receive assignment instructions.”
See id. ¶ 2-3f. After evaluating a soldier, the MMRB may recommend either (1) retention of the
soldier’s PMOS; (2) placing the solider in a probationary status; (3) reclassification of the
soldier’s PMOS; or (3) referral of the soldier to the Army’s Physical Disability Evaluation
System (“PDES”), see id. ¶¶ 4-17 to 4-20, which is the second administrative system relevant to
the instant case, discussed below. Any enlisted soldier “pending MMRB action and follow-on
determinations may not re-enlist,” though “[i]f otherwise qualified, they may extend their current
enlistment” in accordance with Army regulations. See id. ¶ 3-7a. If a soldier is “retained in [his
current] PMOS, reclassified into another PMOS, or found fit by the PDES, re-enlistment or
extension of enlistment will not be denied on medical grounds.” Id. ¶ 3-7c.
The PDES, much like the PPES, is concerned with “determining whether a Soldier is
unfit because of physical disability to reasonably perform the duties of his or her office, grade,
rank, or rating.” See Army Reg. 635-40 ¶ 1-1. Similar to the screening role played by the
MMRB in the PPES process, a medical evaluation board (“MEB” or “MEBD”) is involved in the
PDES process. See id. ¶ 2-10a. “MEBD’s are convened to document a soldier’s medical status
3
“The basic purpose of the physical profile serial system is to provide an index to overall functional capacity,” and
“[f]our numerical designations are used to reflect different levels of functional capacity.” See Army Reg. 40-501
¶ 7-3b. The numerical designators 3 and 4 are the lowest levels of functional capacity. See id. tbl. 7-1.
5
and duty limitations insofar as duty is affected by the soldier’s status,” id. ¶ 4-10, and a soldier is
generally referred to an MEBD, like an MMRB, when a question arises about the soldier’s
ability “to perform the duties of his or her office, grade, rank, or rating because of physical
disability,” see id. ¶¶ 4-6, 4-8. A soldier may also be referred to an MEBD by the MMRB, 4 see
Army Reg. 600-60 ¶ 4-20, and referral to an MEBD is required if a soldier has certain medical
conditions, including diabetes mellitus, “when proven to require insulin or oral medications for
control.” See Army Reg. 40-501 ¶ 3-11d.
B. Factual and Procedural Background
In March 1976, the plaintiff enlisted in the U.S. Army. See Admin. R. (“A.R.”) at 269–
70, ECF No. 15-6. After completing just over three years of active service, the plaintiff was
honorably discharged on February 29, 1980. See id. at 267; see also Def.’s Statement of Facts
(“Def.’s Facts”) ¶ 2, ECF No. 16-2. In December 1982, the plaintiff was appointed as a Second
Lieutenant in the South Carolina Army National Guard. See A.R. at 6, 251–52. The plaintiff
was promoted to the rank of First Lieutenant in December 1985, see id. at 226, and to the rank of
Captain in November 1988, see id. at 6, 207. On September 30, 1993, the plaintiff was
transferred to the Oregon National Guard, see id. at 193–97, and in October 1994, the plaintiff
was first ordered to active duty in the AGR program, see id. at 6, 185–86. In February 1997 the
plaintiff was promoted to the rank of Major. See id. at 6, 168. Also, in November 1997, the
plaintiff was diagnosed with diabetes mellitus, which he “controlled . . . with exercise, diet, and
limited oral medication.” See Am. Compl. ¶ 5, ECF No. 13; A.R. at 122. The plaintiff was
subsequently issued a “‘3-P’ permanent profile” in 1998 as a result of his diabetes diagnosis,
though he “was not referred to an MMRB” at that time. See Am. Compl. ¶¶ 6, 9.
4
Due to the close similarities between the PDES and PPES, it is unclear when a soldier is referred first to an
MMRB, rather than being directly referred to an MEBD.
6
In December 2001, the plaintiff was notified that he would be released from active duty
and transferred to the Retired Reserve on August 31, 2002, after having accrued twenty years of
active federal service. See Def.’s Facts ¶ 11. At some unspecified time in 2002, the plaintiff
submitted a request for voluntary retirement. 5 See id. ¶ 12; A.R. at 6. The plaintiff claims that in
or about February 2002, he requested selective retention in the AGR program. See Am. Compl.
¶ 21. 6 Also at some point in 2002, the plaintiff was processed through either an MMRB or an
MEBD, though it is unclear from the record when or how the medical referral was initiated and
what the outcome of the medical referral was. See A.R. at 12; Pl.’s Opposing Statement of Facts
(“Pl.’s Facts”) ¶ 11-B, ECF No. 22-2; Am. Compl. ¶ 19. 7 The plaintiff alleges in his Amended
Complaint that he was referred to an MMRB in June 2002, and that his “MMRB later
unfavorably referred him to a follow-on MEB as not deployable and for further disability
processing.” See Am. Compl. ¶¶ 31, 33. On July 23, 2002, the plaintiff was once again notified
that, pursuant to his application for voluntary retirement, he would be retired from active duty
and transferred to the Retired Reserve, effective August 31, 2002. See A.R. at 145. In
accordance with this notice, the plaintiff was in fact released from active duty on August 31,
2002, after serving twenty years, one month, and twenty-four days of active federal service. See
id. at 125, 145.
5
Although the parties do not dispute that the plaintiff submitted a voluntary retirement request, there is no
documentation in the Administrative Record showing when exactly this request was submitted or received. Indeed,
it is unclear from the Administrative Record whether the plaintiff’s voluntary retirement request was submitted
before or after his purported selective retention request, or whether they were submitted simultaneously. Despite the
fact that the Administrative Record contains 137 pages of the plaintiff’s personnel records, stretching from 1976 to
2003, see A.R. at 134–210, the Administrative Record contains no documentation of the plaintiff’s voluntary
retirement request. The plaintiff alleges in his Amended Complaint that the retirement request was submitted
“concurrently” with his retention request and that he “was told that if the request for extension was approved, NGB
would pull the retirement papers.” See Am. Compl. ¶ 26.
6
In his original Complaint, the plaintiff alleged that he submitted this extension request in January 2002. See
Compl. ¶ 26, ECF No. 1.
7
The Amended Complaint contains two paragraphs denominated as paragraph 19. See Am. Compl. at 6. All
citations to paragraph 19 of the Amended Complaint in this Opinion are to the paragraph 19 listed first in the
Amended Complaint.
7
The plaintiff’s personnel record reflects a long and distinguished career in military
service. On October 20, 2002, the plaintiff received the Meritorious Service Medal for his
twenty years of “exemplary service coupled with his superb technical expertise.” See A.R. at
138. His commanding officers also consistently and enthusiastically recommended him for
promotion to the rank of Lieutenant Colonel. See id. at 140–41 (“Promote when eligible.”); id. at
147 (“Promote to lieutenant colonel and give him every opportunity for our best professional
development schools.”); id. at 153 (“MAJ Tindal is Battalion command material and should be
considered when eligible.”). On September 4, 2002, a promotion board selected the plaintiff for
promotion to the rank of Lieutenant Colonel, but the promotion selection was declared null and
void due to the plaintiff’s transfer to the Retired Reserve prior to the approval date of his
promotion. See Def.’s Facts ¶ 16; A.R. at 118, 134.
On September 9, 2005, the plaintiff submitted an application to the Board, 8 requesting
reinstatement to active duty in the AGR program, promotion to the rank of Lieutenant Colonel,
and transfer to the Oregon Army National Guard. See Def.’s Facts ¶ 17; A.R. at 120–23. In his
original application, filed pro se, the plaintiff contended that he had “been unjustly treated
compared to [his] Active Component counterparts” because “the National Guard requirements
and policies are more restrictive than the Active Component.” See A.R. at 122. Specifically, the
plaintiff contended, “if I had been a Regular Army officer, I would have been able to serve 24
years at my rank,” but “because I was a member of the Army National Guard and not the
Regular Army, I was not given the opportunity to continue my career and retire as a Lieutenant
Colonel or possibly a higher rank.” Id. at 121. The plaintiff also mentioned in his submission to
the Board that “[t]he Oregon National Guard tried to extend me before my retirement date;
8
“The Army Board for Correction of Military Records (‘ABCMR’), a civilian review board, is empowered to
review applications for the presence of an error or injustice and make recommendations for corrective action.”
Def.’s Mem. in Supp. Mot. for Summ. J. (“Def.’s Mem.”) at 1 n.1, ECF No. 16-1.
8
however, the time ran out to my retirement date without any positive results.” Id. at 122.
Further, the plaintiff stated that the NGB had “directed that [he] go through a Medical Evaluation
Board,” and that although “Mr. Grant Moyer, the Medical Evaluation Board director . . . stated
[he] would not have to go through an MRB to stay on Active Duty,” he nevertheless “had to go
before an MRB.” Id. In short, the plaintiff argued in his original appeal to the Board that he had
been treated unfairly because he was forced to retire after twenty years of active service, while
officers in the regular Army component could serve in active duty in the rank of Major for up to
twenty-four years. On August 31, 2006, the Board considered the plaintiff’s arguments and
evidence, including his Board application and his military personnel records, and the Board
denied his request for relief. See id. at 115–18.
On February 26, 2010, the plaintiff filed his original Complaint in the instant action. In
his Complaint, the plaintiff presented a different version of the arguments he advanced before the
Board. In particular, the plaintiff alleged that “[h]e attempted to argue that while his [active
federal service] extension was pending, NGB directed that he go through a useless Medical
Evaluation Board and MRB to determine if he was physically fit to continue with his career.”
See Compl. ¶ 35, ECF No. 1. The Complaint further alleged that the plaintiff “was referred to an
MEB for diabetes, but that condition was never an issue that affected his performance.” Id. In
this regard, the plaintiff alleged that “the [NGB] in May 2002 directed Major Tindal be
processed for disability retirement through a MEB and MMRB, both at Fort Jackson S.C.” Id.
¶ 27. The plaintiff complained that “[t]he Board did not address the MEB or MMRB issues, nor
the injustice of NGB insisting on these boards until the clock ran out on Tindal’s extension
request.” Id. ¶ 36. Although conceding that “it was not explicitly clear that [the plaintiff] was
invoking the equitable powers of the Board to retroactively approve his [extension] request,” he
9
claimed that “there is some evidence in the record to suggest that he did.” Id. ¶ 41 (quoting
Calloway v. Brownlee, 366 F. Supp. 2d 43, 55 (D.D.C. 2005)).
On June 17, 2010, the parties filed a joint motion to remand the case to the Board. See
Consent Mot. for Voluntary Remand to Agency (“Mot. to Remand”), ECF No. 7. In that motion,
the parties stated that “Defendant seeks to withdraw the final agency decision . . . and remand the
action to the [Board] to reconsider its decision.” Id. at 1. In light of the plaintiff’s equitable
arguments regarding his purported extension request, which were not clearly raised before the
Board the first time around, the defendant “agree[d] that remand to the [Board] is appropriate so
that the board can further analyze the limited issue of whether the [NGB] failed to timely act
upon Plaintiff’s extension request and, if so, whether such failure is an error, injustice or inequity
supporting the relief that plaintiff seeks.” Id. at 3. The joint motion also made clear that “[o]n
remand, the [Board] will not consider any other arguments that Plaintiff raises in his complaint.”
Id. This precluded review of the plaintiff’s “novel arguments” regarding the equitable remedies
of estoppel, tolling, and “lulling.” See id. at 3–4; see also Compl. ¶ 39. The defendant agreed to
have the Board consider the limited issue regarding the plaintiff’s purported extension request,
“all of the relevant evidence that Plaintiff previously submitted to the [Board]” and three new
pieces of evidence, which included two academic research papers from students at the U.S.
Army War College and a previous Board decision. See Mot. to Remand at 3–4. The previous
presiding judge in this case granted the parties’ motion and remanded the matter to the Board for
further consideration. See Consent Remand Order, ECF No. 9. 9
After the plaintiff submitted a new application for relief, the Board, on September 30,
2010, once again denied the relief requested. See A.R. at 4–14. The Board made two primary
conclusions in arriving at its decision. First, it concluded that “there is no evidence in [the
9
This case was assigned to the current presiding judge on January 20, 2011.
10
plaintiff’s] records and he did not provide any evidence that he requested retention in the AGR
program prior to his retirement.” Id. at 12. Second, the Board concluded that, even assuming the
plaintiff had submitted an extension request, (1) “the [plaintiff’s] MEB had no impact on his
ability to submit an extension request and did not prevent him from submitting a request much
earlier,” (2) “[h]ad such a request been submitted earlier, it appears the NGB could have had it
approved with a waiver or pending the MMRB,” and (3) “there is no evidence that [the
plaintiff’s purported extension request] was submitted early enough to allow the NGB to process
it prior to his retirement.” Id. at 12–13. More generally, the Board noted that “[a]ssuming [the
plaintiff] did submit a request for an extension and it could not be processed before he retired,
the delay in submitting the request was of his doing, and he cannot complain now that he is due
relief because his voluntary retirement was not delayed.” Id. at 13.
On November 22, 2010, the plaintiff filed an Amended Complaint, asking the Court to
set aside the Board’s September 2010 decision under the APA. See Am. Compl. at 1. This time,
the plaintiff alleged that “[t]he record shows that Tindal’s extension request was in fact
submitted because NGB medically flagged the application for Tindal’s 3P permanent profile for
diabetes,” and thus the plaintiff alleged that “NGB initiated an MMRB for purposes of AGR
continuation.” See id. ¶ 19. 10 Further, the plaintiff contended in his Amended Complaint that
“[t]he record implies that the NGB referral to an MMRB in June 2002 had the effect of
suspending a[n] extension request to continue AGR service.” Id. ¶ 31. The plaintiff also
included in his Amended Complaint, for the first time, what he claims is “the actual request
forwarded by Major Tindal that went into Army channels.” See id. ¶ 22. The plaintiff clarified
that he was now raising “a non-monetary claim to reconsider on factual error the agency decision
10
The plaintiff also alleged that “the NGB-directed MMRB later recommended Tindal to a MEB for disability
processing.” Am. Compl. ¶ 19.
11
denying Tindal’s request to grant a discretionary extension of AGR status, and denying
reinstatement in a Reserve active status after involuntary transfer to the Retired Reserve.” Id.
¶ 45; see also id. (characterizing the plaintiff’s claim as “[a] challenge to [a Board] decision
based on erroneous facts”). 11
Currently pending before the Court are three motions. The first two are cross-motions for
summary judgment filed by each party. The third motion, filed by the plaintiff, asks the Court to
supplement the administrative record with four new pieces of evidence. These pieces of
evidence include: (A) “Major Tindal’s ‘Request for Retention Beyond 20 Years,” dated
February 27, 2002; (B) “Major Tindal’s June 11, 2002 Army school and travel orders to Fort
Dix, N.J. to attend ‘Command and General Staff Officer Course,’” (C) “Steven Tindal’s
declaration, dated July 20, 2011 (explaining why Exhibits A and B were not available until 2008
when released by Oregon ARNG),” and (D) “[Plaintiff’s] Counsel’s Declaration, [dated]
November 18, 2010,” which “offers relevant background information on past NGB practices
provided in [an] interview of a retired Army [NGB] Brigadier General.” See Pl.’s Mot.
Supplement at 1–2, ECF No. 24. For the reasons discussed below, the Court grants the
defendant’s motion for summary judgment, and denies the plaintiff’s cross-motion for summary
judgment and motion to supplement the administrative record.
11
As is clear from the plaintiff’s allegations in the Amended Complaint, the existence or non-existence of the
purported retention request is of central importance to this case and to the relief sought by the plaintiff. As the
defendant explains: “Without the extension, Plaintiff can not be promoted pursuant to law and can not be reinstated
to AGR status. Therefore the success or demise of his relief naturally flows from the determination concerning his
extension request.” Def.’s Mem. at 7. The Court has not lost sight of the passage of years since the plaintiff was
retired from active service. Even had the plaintiff been promoted to the rank of Lieutenant Colonel in 2003, it is
unlikely that he would be serving in an active-duty capacity currently. Therefore, what is at stake in this case is not
the plaintiff’s reinstatement to active-duty service, but his retroactive promotion to the rank of Lieutenant Colonel,
which would provide him with a larger military retirement salary.
12
II. LEGAL STANDARD
Under the APA, an agency action may be set aside if it is “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Review of
agency actions under the “arbitrary and capricious” standard is “highly deferential” and
“presumes the agency’s action to be valid.” Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283
(D.C. Cir. 1981). In assessing an agency decision, the Court reviews whether “the decision was
based on a consideration of the relevant factors and whether there has been a clear error of
judgment.” Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated
on other grounds, Califano v. Sanders, 430 U.S. 99, 105 (1977). “The scope of the Court’s
review under this standard ‘is narrow and a court is not to substitute its judgment for that of the
agency.’” United Steel v. Pension Benefit Guar. Corp., 839 F. Supp. 2d 232, 245 (D.D.C. 2012)
(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 30 (1983)).
“[A] reviewing court may not set aside an agency [decision] that is rational, based on
consideration of the relevant factors, and within the scope of the authority delegated to the
agency by the statute,” so long as the agency has “examine[d] the relevant data and articulate[d]
a satisfactory explanation for its action including a ‘rational connection between the facts found
and the choice made.’” State Farm, 463 U.S. at 42–43 (quoting Burlington Truck Lines, Inc. v.
United States, 371 U.S. 156, 168 (1962)).
While judicial review of an agency’s actions is generally narrow and subject to a
presumption of validity, review of the Board’s decisions in particular under the APA is
“unusually deferential.” See Piersall v. Winter, 435 F.3d 319, 324 (D.C. Cir. 2006) (citing Kreis
v. Sec’y of Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989)). When reviewing a decision of the
Board, this Court’s “inquiry focuses not on whether the Army was ‘substantively correct’ . . . but
13
rather on whether the ABCMR’s explanations for that choice demonstrate that defendants
‘permissibly exercised [their] discretion and made a choice that is supported by at least
substantial evidence.’” Hill v. Geren, 597 F. Supp. 2d 23, 29 (D.D.C. 2009) (citing Homer v.
Roche, 226 F. Supp. 2d 222, 226 (D.D.C. 2002)). The “plaintiff must overcome a strong
presumption that the military administrators discharged their duties correctly, lawfully, and in
good faith.” Escobedo v. Geren, 602 F. Supp. 2d 244, 249 (D.D.C. 2009) (citing Frizelle v.
Slater, 111 F.3d 172, 177 (D.C. Cir. 1997)). To rebut this presumption “the plaintiff has the
burden of showing by cogent and clearly convincing evidence that the decision was the result of
a material legal error or injustice.” Id. (citations and internal quotation marks omitted).
III. DISCUSSION
The Court will begin by addressing the merits of the plaintiff’s motion to supplement the
administrative record. Next, the Court will address the defendant’s argument that the plaintiff
has waived certain arguments by failing to raise them before the agency. Finally, the Court will
discuss the merits of the parties’ motions for summary judgment.
A. Supplementing the Administrative Record
Under the APA, “the court shall review the whole record or those parts of it cited by a
party.” 5 U.S.C. § 706; see also Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir.
2008) (“The record consists of the order involved, any findings or reports on which that order is
based and ‘the pleadings, evidence, and other parts of the proceedings before the agency.’”
(quoting FED. R. APP. P. 16(a))). Hence, “[i]t is a widely accepted principle of administrative
law that the courts base their review of an agency’s actions on the materials that were before the
agency at the time its decision was made.” IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir.
1997); accord Camp v. Pitts, 411 U.S. 138, 142 (1973) (“In applying [the arbitrary and
14
capricious] standard, the focal point for judicial review should be the administrative record
already in existence, not some new record made initially in the reviewing court.”). 12
“There are exceptional circumstances in which supplementation of the administrative
record is appropriate due to some deficiency.” Marcum v. Salazar, 751 F. Supp. 2d 74, 78
(D.D.C. 2010); accord City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 2010) (“[W]e
do not allow parties to supplement the record ‘unless they can demonstrate unusual
circumstances justifying a departure from this general rule.’” (quoting Tex. Rural Legal Aid v.
Legal Servs. Corp., 940 F.2d 685, 698 (D.C. Cir. 1991))); Cape Hatteras Access Pres. Alliance
v. U.S. Dep’t of Interior, 667 F. Supp. 2d 111, 112 (D.D.C. 2009) (“A court that orders an
administrative agency to supplement the record of its decision is a rare bird.”). The D.C. Circuit
has recognized three narrow instances in which supplementation of an administrative record may
be appropriate: “(1) if the agency ‘deliberately or negligently excluded documents that may have
been adverse to its decision,’ (2) if background information was needed ‘to determine whether
the agency considered all the relevant factors,’ or (3) if the ‘agency failed to explain
administrative action so as to frustrate judicial review.’” City of Dania Beach, 628 F.3d at 590(quoting American Wildlands, 530 F.3d at 1002). Underlying these exceptions, however, is the
“strong presumption” that an agency has properly compiled the entire record of materials that it
considered, either directly or indirectly, in making its decision. See, e.g., Marcum, 751 F. Supp.
2d at 78; Maritel, Inc. v. Collins, 422 F. Supp. 2d 188, 196 (D.D.C. 2006) (“Although an agency
may not unilaterally determine what constitutes the administrative record, the agency enjoys a
12
See also Deukmejian v. Nuclear Regulatory Comm’n, 751 F.2d 1287, 1325 (D.C. Cir. 1984) (en banc) (“Were
courts cavalierly to supplement the record, they would be tempted to second-guess agency decisions in the belief
that they were better informed than the administrators empowered by Congress and appointed by the President.”),
vacated en banc in part on other grounds, 760 F.2d 1320 (D.C. Cir. 1985); Steven Stark & Sarah Wald, Setting No
Records: The Failed Attempts to Limit the Record in Review of Administrative Action, 36 ADMIN. L. REV. 333, 334
(1984) (“The reasoning behind record review is that if courts were to examine the evidence that was not before the
agency when it made its decision, courts would be acting as independent decision makers, rather than as reviewing
bodies whose limited task is only to check arbitrary actions by the executive branch.”).
15
presumption that it properly designated the administrative record absent clear evidence to the
contrary.”). To overcome that presumption, “a plaintiff must put forth concrete evidence that the
documents it seeks to ‘add’ to the record were actually before the decisionmakers.” Marcum,
751 F. Supp. 2d at 78; accord Nat’l Mining Ass’n v. Jackson, 856 F. Supp. 2d 150, 156 (D.D.C.
2012).
A doctrine related to “supplementing” the administrative record is when a court permits
consideration of “extra-record evidence.” See, e.g., National Mining Ass’n, 856 F. Supp. 2d at
156 (“A separate standard governs judicial consideration of extra-record evidence, which
consists of evidence outside or in addition to the administrative record that was not necessarily
considered by the agency.” (internal quotation marks omitted)). The D.C. Circuit has explained
that “the familiar rule that judicial review of agency action is normally to be confined to the
administrative record. . . . exerts its maximum force when the substantive soundness of the
agency’s decision is under scrutiny.” Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989).
Particularly when the procedural validity of an agency’s action is in question, however, “it may
sometimes be appropriate to resort to extra-record information to enable judicial review to
become effective.” Id. Recently, the D.C. Circuit has cautioned that the exceptions announced
in Esch are “narrow” and that, “at most [Esch] may be invoked to challenge gross procedural
deficiencies.” 13 Hill Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. Cir. 2013); accord
13
In Esch, the D.C. Circuit listed eight potential circumstances in which consideration of extra-record evidence may
appropriate:
(1) when agency action is not adequately explained in the record before the court; (2) when the
agency failed to consider factors which are relevant to its final decision; (3) when an agency
considered evidence which it failed to include in the record; (4) when a case is so complex that a
court needs more evidence to enable it to understand the issues clearly; (5) in cases where
evidence arising after the agency action shows whether the decision was correct or not; (6) in
cases where agencies are sued for a failure to take action; (7) in cases arising under the National
Environmental Policy Act; and (8) in cases where relief is at issue, especially at the preliminary
injunction stage.
16
Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010)
(acknowledging that consideration of extra-record evidence “is the exception, not the rule”).
As summarized above, the plaintiff has moved to “supplement the administrative record”
with four new exhibits. See Pl.’s Mot. Supplement Admin. R., & Mem. in Supp. (“Pl.’s Supp.
Mem.”) at 1, ECF No. 24. Two of these documents appear to be personnel records of the
plaintiff: (A) a copy of his purported AGR retention request; and (B) a copy of the orders
directing him to attend a Command and General Staff Officer Course in June 2002. See id. The
other two documents are sworn declarations: (C) one by the plaintiff himself, explaining why
proposed Exhibits A and B were unavailable until 2008; and (D) one by the plaintiff’s attorney,
recounting the contents of a conversation with a “retired National Guard Brigadier General”
which provided “relevant background information on past NGB practices.” Id. at 1–2. At the
outset, although the plaintiff’s motion is styled as one to “supplement the administrative record,”
the doctrine of supplementing the administrative record, discussed above, clearly does not apply
to the instant case because the plaintiff has not attempted to “put forth concrete evidence that the
documents [he] seeks to ‘add’ to the record were actually before the decisionmakers.” See
Marcum, 751 F. Supp. 2d at 78. Thus, the Court will evaluate the plaintiff’s motion as a request
for the Court to consider extra-record evidence. Under that rubric, the Court concludes that the
plaintiff’s motion to supplement should be denied for three reasons: (1) the plaintiff does not
challenge the procedural validity of the Board’s decision; (2) none of the Esch exceptions cited
by the plaintiff apply; and (3) the two documents relied upon most heavily by the plaintiff bear
indicia of unreliability.
Esch, 876 F.2d at 991 (quoting Stark & Wald, Setting No Records, 36 ADMIN. L. REV. at 345). More
recently, the D.C. Circuit “appears to have narrowed these exceptions to four: (1) when the agency failed to
examine all relevant factors; (2) when the agency failed to explain adequately its grounds for its decision;
(3) when the agency acted in bad faith; or (4) when the agency engaged in improper behavior.” National
Mining Ass’n, 856 F. Supp. 2d at 156–57 (citing IMS, 129 F.3d at 624).
17
1. The Plaintiff Does Not Challenge the Procedural Validity of the Board’s
Decision.
As discussed above, the exceptions permitting consideration of extra-record evidence in
an administrative law case “at most . . . may be invoked to challenge gross procedural
deficiencies.” Hill Dermaceuticals, 709 F.3d at 47; see also Marcum, 751 F. Supp. 2d at 79(“The Esch exceptions are more appropriately applied in actions contesting the procedural
validity of agency decisions.”). In the instant case, however, the plaintiff does not challenge the
procedural validity of the Board’s decision. Rather, the gravamen of the plaintiff’s claim is that
the Board’s decision was irrational and that its factual findings were not supported by substantial
evidence, as discussed in more detail below. See Pl.’s Mem. Supp. Cross-Mot. for Summ. J. &
Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”) at 7–11, ECF No. 22-1. Thus, the substantive
nature of the plaintiff’s complaint about the Board’s decision militates strongly against the
consideration of extra-record evidence.
2. None of the Cited Esch Exceptions Apply.
Moreover, as to the plaintiff’s proffered Exhibits A and B, the Court is concerned that
considering such evidence would be highly prejudicial to the Board because the plaintiff
concedes that this evidence was available well before the 2010 Board decision at issue in this
case. See, e.g., Decl. of Steven Tindal (“Tindal Decl.”) ¶ 2, ECF No. 24-3 (attached as proposed
Ex. C) (explaining that proposed Ex. A was available as of 2008); Pl.’s Supp. Mem. at 1
(“Exhibits A and B were not available until 2008 . . . .). The plaintiff contends that the defendant
prohibited him from submitting Exhibits A and B “or any other documents except those included
within Tindal’s 2006 BCMR application” and therefore the plaintiff argues that “Exhibits A
[and] B . . . fall within an Esch exception permitting supplementing the record for evidence
18
previously unavailable.” Pl.’s Supp. Mem. at 1, 3. 14 As support for this assertion, the plaintiff
cites: (1) certain portions of the joint Motion to Remand; and (2) an e-mail conversation between
plaintiff’s counsel and defendant’s counsel discussing the terms of the remand, id. at 1, yet
neither of these documents supports the plaintiff’s contention. The portions of the joint Motion
to Remand cited by the plaintiff merely summarize the defendant’s agreement to allow the
plaintiff to submit other pieces of new evidence (i.e., two academic research papers) and state
that “[t]he ABCMR will not consider [the] new arguments [raised in the plaintiff’s Complaint]
on remand.” See Mot. to Remand ¶¶ 8, 10. If anything, the contents of this joint motion indicate
that the defendant was willing to have the Board consider new evidence supporting the plaintiff’s
equitable arguments, even though it would not consider any new arguments not previously raised
in the 2006 Board proceeding. See id.
Likewise, the e-mail conversation cited by the plaintiff provides no support for the
contention that the defendant or the Board foreclosed consideration of new, relevant evidence on
remand. Much like the portions of the Motion to Remand discussed above, the e-mail
conversation indicates that defense counsel was concerned “about the ABCMR only considering
the issues placed before it in the original application.” See A.R. at 30 (emphasis added); see also
id. at 29 (objecting to submission of “three arguments that were never before the Board” and not
wanting to “re-argue the issue of whether the longevity policy is fair” (emphasis added)).
Indeed, plaintiff’s counsel specifically eschewed the implication that he was trying to submit
new evidence at all; his sole objection to defense counsel’s proposed remand motion, as set forth
in the e-mail conversation, was certain language “implying the complaint raises new evidence
not already before the [Board], not within its constructive knowledge.” Id. at 30. Plaintiff’s
14
This, of course, assumes that the Esch exception for evidence previously unavailable is still recognized in this
Circuit, which has been called into question by more recent Circuit case law. See National Mining Ass’n, 856 F.
Supp. 2d at 156–57 (citing IMS, 129 F.3d at 624).
19
counsel went so far as to state: “My intent in [the] Tindal complaint is not to raise new argument
or evidence.” Id. (emphasis added).
Plaintiff’s counsel made the argument to defense counsel that the Board should consider
the new evidence (academic research papers and previous Board decision) because they were
“within [the Board’s] constructive knowledge.” Id. Yet, plaintiff’s counsel never so much as
implied the existence of Exhibits A and B, let alone discussed these documents as evidence that
the plaintiff sought to be considered by the Board on remand, see id. at 29–30, despite the fact
that the documents had allegedly already been in the plaintiff’s possession for some time. In
fact, the plaintiff has offered no evidence to show that the defendant or the Board were ever
aware of the existence of Exhibits A or B until the filing of the Amended Complaint in
November 2010—after the Board had already made the September 2010 decision challenged in
this case. Defense counsel never objected to submitting the new evidence offered by the plaintiff
and never “refused Tindal’s submission on remand of any other documents except those before
the [Board] in 2006,” as the plaintiff contends. See Pl.’s Supp. Mem. at 2. Thus, the very
evidence cited by the plaintiff demonstrates that, contrary to the plaintiff’s contentions, Exhibits
A and B do not “fall within an Esch exception permitting supplementing the record for evidence
previously unavailable.” See id. at 3. 15
The plaintiff argues that Exhibit D—the declaration by plaintiff’s counsel summarizing
the information about NGB practices ostensibly conveyed to him by a retired Army National
Guard Brigadier General—should be considered, either as “evidence previously unavailable” or
as “‘background material’ that is not argumentative but ‘primarily explanatory in nature.’” See
id. at 3–4 (quoting Corel Corp. v. United States, 165 F. Supp. 2d 12, 31 (D.D.C. 2001)). As to
15
Also, because the sole purpose of Exhibit C is to “explain[] why . . . Exhibits A and B were not available until
2008,” see Pl.’s Suppl. Mem. at 1, Exhibit C likewise does not fall within any Esch exception.
20
the unavailability exception, 16 the plaintiff stated in his Amended Complaint that the Brigadier
General “was not available to comment until 2010,” see Am. Compl. ¶ 16, and plaintiff’s counsel
elaborated in Exhibit D that, prior to 2010, the source of the information was addressing various
health issues affecting her family members, see Pl.’s Ex. D, ECF No. 29 (filed under seal). This
is hardly compelling support, and it is not sufficient to overcome the weighty presumption that a
court should limit its review to the record before the agency at the time of its decision. Although
the family health issues outlined in the sealed version of Exhibit D are undoubtedly serious, they
do not rise to the level of rendering the source’s information unavailable, particularly because it
appears that at least some of those family issues persisted through the time the source spoke with
plaintiff’s counsel. See id. Absent some further explanation regarding the prior unavailability of
this evidence, it appears at least equally likely that the plaintiff simply did not think to obtain this
evidence until it became clear that the Board’s 2010 decision was adverse to him. 17
As to the exception for “background information,” that exception does not apply to
proposed Exhibit D for several reasons. First, the “background information” exception has been
interpreted by the D.C. Circuit to apply only when such information is necessary to help the
court understand the reasons for the agency’s action, or to ensure that the agency considered all
relevant factors. See James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir.
1996); Envtl. Defense Fund, 657 F.2d at 285–86. Second, such “background information” is
generally supposed to come from those who “participated in the pertinent agency actions,” not
from third parties purporting to act as de facto expert witnesses regarding the practices of the
agency in question. See Envtl. Defense Fund, 657 F.2d at 286. Finally, any “background
16
Once again, this discussion assumes arguendo that this unavailability exception is still recognized in this Circuit.
Contra National Mining Ass’n, 856 F. Supp. 2d at 156–57.
17
Indeed, it is difficult to conclude that it is mere coincidence that the information in Exhibit D “was provided
November 18, 2010,” Am. Comp. ¶ 16—a mere forty-five days after the plaintiff was notified of the Board’s
decision, see A.R. at 2.
21
information” submitted “can never . . . examine the propriety of the decision itself.” Id. Yet,
Exhibit D runs afoul of each of these principles: (1) it is not necessary to help the court ascertain
whether the agency considered all relevant factors or the reasons for the agency’s action; (2) it
does not come from any member of the Board or other person who participated in the Board’s
decisionmaking process in this case; and (3) it is submitted essentially as a third-party expert
affidavit, challenging the merits of the Board’s decision. 18 As a result, the Court concludes that
the extra-record evidence in the plaintiff’s proffered Exhibit D does not fall within any
recognized exception to the general rule limiting APA review to the record before the agency at
the time of its decision.
3. Exhibits A and D Bear Indicia of Unreliability.
In addition to all of the above-discussed reasons for denying the plaintiff’s motion to
supplement the administrative record, the Court also has concerns regarding the reliability of the
two pieces of evidence relied upon most heavily by the plaintiff in his briefing: Exhibits A and
D. As the defendant points out, there are serious questions about the authenticity of Exhibit A,
which the plaintiff says is a copy of his AGR extension request. First, Exhibit A contains no
endorsement signatures or other indications that it was administratively processed. See Def.’s
Reply to Pl.’s Opp’n to Def.’s Mot. for Summ. J. & Def.’s Opp’n to Pl.’s Cross-Mot. for Summ.
J. (“Def.’s Reply”) at 12 n.5, ECF No. 30. Second, it was purportedly obtained from the Oregon
Military Department, see Tindal Decl. ¶ 2, but the official within the Oregon Military
18
That the information in Exhibit D is being offered to challenge the merits of the Board’s decision is obvious from
the face of the Amended Complaint, which uses the information contained in Exhibit D to contend that “Tindal’s
extension request was in fact submitted because NGB medically flagged the application for Tindal’s 3P permanent
profile for diabetes.” See Am. Compl. ¶¶ 15–19. The nature of Exhibit D as a de facto expert affidavit is likewise
apparent from the plaintiff’s cross-motion for summary judgment, in which he cites the information in Exhibit D to
bolster his argument that the Board erred in failing to conclude that the plaintiff’s MMRB proceedings
“[s]uspen[ded]” his purported AGR extension request. See Pl.’s Opp’n at 5, 9; see also Pl.’s Joint Reply to Def.’s
Opp’n to Cross-Mot. for Summ. J. & Mot. to Supplement the Admin. R. (“Pl.’s Reply”) at 5, ECF No. 33. The use
of purported “background information” in this way “would be contrary to decisions of the Supreme Court and of
[the D.C. Circuit].” Envtl. Defense Fund, 657 F.2d at 286.
22
Department responsible for maintaining personnel records has submitted a sworn declaration
stating that his office has no record of any such document in the plaintiff’s personnel file, and his
office also has no record of correspondence with the plaintiff regarding such a document, see
Decl. of Michael Gillett (“Gillett Decl.”) ¶¶ 3–4, ECF No. 32-1. 19
Exhibit D is a redacted version of a sworn declaration from the plaintiff’s counsel, which
purports to recount a telephone conversation with an anonymous individual about “past NGB
procedures or practices on AGR assignments involving possible medical disqualification.” See
Decl. of John A Wickham (“Wickham Decl.”) ¶ 1, ECF No. 24-4. Of principal concern with
regard to this document, the plaintiff has offered no reason why this information had to be
submitted as blatant hearsay, rather than having “the source” him or herself submit a sworn
declaration attesting to such procedures or practices. In his motion to file the declaration under
seal, the plaintiff referenced the fact that “the source has expressed fears of reprisal or other
adverse action by [the] military, officials from the NGB, or others,” see Pl.’s Mot. for Leave to
File Decl. Under Seal (“Pl.’s Seal Mot.”) at 1, ECF No. 28, but the identity of “the source” is no
secret. The plaintiff named the source in his Amended Complaint, stating that “[t]he information
on past NGB practices . . . was provided . . . by Brigadier General Julia Cleckley, ARNG (ret.).”
See Am. Compl. ¶ 16. Furthermore, the plaintiff does not explain how General Cleckley could
legitimately fear reprisal, in light of the fact that she appears to be retired and no longer serves in
the chain of command. Id.; see also Pl.’s Seal Mot. at 1. Even assuming that the source of the
information were anonymous, he or she still could have submitted a sworn declaration under seal
19
Additionally, the defendant argues that Exhibit A “only evidences, if anything, an intent to request retention.
Nothing more.” Def.’s Reply at 12 n.5. The defendant may very well be correct that Exhibit A, which is a bare-
bones request for retention, does not contain all of the information that is required to constitute a full retention
request “packet” referenced in the Administrative Record. See A.R. at 62. Yet, the defendant does not support his
assertion with any authority indicating what other items the plaintiff would have been required to include with his
extension request for it to satisfy Army or National Guard regulations.
23
if reprisal were a legitimate concern. In short, these indicia of unreliability further support the
conclusion that proposed Exhibits A and D should not be retroactively added to the
Administrative Record. 20
As the foregoing discussion makes clear, the plaintiff has not established the “exceptional
circumstances” required to permit supplementation of the administrative record. See Marcum,
751 F. Supp. 2d at 78. Nor has the plaintiff established that the proffered evidence, in the
context of the instant case, qualifies for any of the “narrow” exceptions permitting consideration
of “extra-record evidence.” See Hill Dermaceuticals, 709 F.3d at 47. Therefore, the Court will
deny the plaintiff’s motion to supplement the administrative record and will not consider the
exhibits submitted by that motion in adjudicating the merits of the plaintiff’s claim.
B. Waiver
Next, the Court will address the defendant’s argument that the plaintiff has waived
certain arguments by failing to raise them before the Board. To put the defendant’s waiver
argument in context, the Court must first summarize the argument that the plaintiff has arguably
waived. The plaintiff argues in his cross-motion for summary judgment that the Board’s
conclusion that there was no evidence that the plaintiff requested an extension of his active-duty
service is contradicted by the fact that the plaintiff was processed through an MMRB. See Pl.’s
Opp’n at 7–8; see also id. at 4–5. The logic of this argument (the “MMRB/extension request
argument”) is that an MMRB would not have been ordered unless the plaintiff had requested to
be retained in active duty. See id. at 8. Relatedly, the plaintiff also contends that the Board
failed to consider the “regulatory presumption” that “a proper [extension] request submitted
20
Although these indicia of unreliability may render such documents inadmissible under the Federal Rules of
Evidence, the Court does not draw any conclusions about whether such documents would be per se inadmissible
before the Board. As the plaintiff points out, the Board is “‘not bound by formal rules of evidence.’” See Pl.’s
Reply at 5–6 (quoting Pl.’s Reply App. at 12, ECF No. 33-1).
24
earlier was the reason NGB directed an MMRB when presented with Tindal’s permanent
medical condition.” See id. at 10. The defendant argues, in response to these arguments, that
“[n]ot once does Plaintiff’s application or supplemental statement [to the Board] state or even
suggest that his extension request caused his MMRB referral.” See Def.’s Reply at 9. Hence,
the defendant argues that the plaintiff has “waived this argument by failing to raise the issue to
the agency.” Id. at 10.
“Simple fairness to those who are engaged in the tasks of administration, and to litigants,
requires as a general rule that courts should not topple over administrative decisions unless the
administrative body not only has erred but has erred against objection made at the time
appropriate under its practice.” United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37
(1952). Hence, the D.C. Circuit has consistently held that courts “are bound to adhere to the
‘hard and fast rule of administrative law, rooted in simple fairness, that issues not raised before
an agency are waived and will not be considered by a court on review.’” Coburn v. McHugh,
679 F.3d 924, 929 (D.C. Cir. 2012) (quoting Nuclear Energy Inst. v. EPA, 373 F.3d 1251, 1297
(D.C. Cir. 2004) (per curiam)); accord CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 1076,
1079 (D.C. Cir. 2009) (acknowledging the “well-established doctrine of issue waiver, which
permits courts to decline to hear arguments not raised before the agency where the party had
notice of the issue”). This principle applies to legal, as well as factual, arguments. See Nuclear
Energy Institute, 373 F.3d at 1290 (“To preserve a legal or factual argument, . . . [a] proponent
[must] have given the agency a ‘fair opportunity’ to entertain it in the administrative forum
before raising it in the judicial one.” (quoting Wash. Ass’n for Television & Children v. FCC,
712 F.2d 677, 681 (D.C. Cir. 1983))). The D.C. Circuit has very recently clarified that the
standard for waiver in administrative law cases focuses on whether the “specific argument” put
25
forth by the plaintiff was raised before the agency. See Koretoff v. Vilsack, 707 F.3d 394, 398
(D.C. Cir. 2013). Under this standard, this Circuit “require[s] ‘the argument [the plaintiff]
advances here’ to be raised before the agency, not merely the same general legal issue.” Id.(quoting Nuclear Energy Institute, 373 F.3d at 1291).
In response to the defendant’s contention that the plaintiff waived the opportunity to raise
the MMRB/extension request argument, the plaintiff first argues essentially that it was not his
duty to bring this argument to the Board’s attention. In this regard, the plaintiff argues that the
Board has a “moral duty to address the true nature of any injustice,” implying that the Board
should have read between the lines of the plaintiff’s application in the name of justice. See Pl.’s
Reply at 1–2. Similarly, the plaintiff dismisses the defendant’s waiver argument as “semantic
quibbling,” because the plaintiff “was not required to hand-hold an agency, particularly here with
the [Board]’s presumed regulatory expertise on the elementary purpose of the [MMRB].” Id. at
6. In this same vein, the plaintiff characterizes his MMRB/extension request argument as “a
regulatory fact,” which “does not constitute a separate claim or argument of error or injustice.”
Id. Finally, the plaintiff argues that he placed the Board “on notice” of the MMRB/extension
request argument when he: (1) “explained the function of an MMRB” and “alleged that at the
time he submitted his extension request for approval, NGB ‘instead’ referred him to the
MMRB;” (2) “explained that further action on his pending extension request was ‘suspended’
when NGB directed he undergo the MMRB;” (3) “explained that while final action on his
extension request was pending, NGB directed an MMRB to determine if he was fit ‘to continue
his career;” and (4) “noted that the result of the MMRB was ‘approval to continue’ as an AGR.”
Id. at 6–7.
26
First, the plaintiff’s arguments about not being required to “hand-hold an agency” and the
Board having a “moral duty to address the true nature of any injustice,” see id. at 2, 6, downplay
the plaintiff’s responsibilities as a party claiming relief before an administrative agency.
Although the Board may have the “moral duty” cited by the plaintiff, that duty is no more
demanding than the duty of every administrative agency to “consider [the] important aspect[s] of
the problem” before it. See, e.g., State Farm, 463 U.S. at 43. Moral duty or no moral duty, the
Board is not required to make a claimant’s case for him or sift through the materials submitted
by a claimant to discern whether any implied arguments are being made. Cf. Nat’l Ass’n of
Clean Air Agencies v. EPA, 489 F.3d 1221, 1231 (D.C. Cir. 2007) (“Objections must be
prominent and clear enough to place the agency ‘on notice,’ for EPA is not required ‘to cull
through all the letters it receives and answer all of the possible implied arguments.”). It is the
claimant’s responsibility, in the first instance, to lay out his arguments in a reasonably clear
fashion, so that the Board can have a “fair opportunity” to consider them. See, e.g., Nuclear
Energy Institute, 373 F.3d at 1290. This is particularly true when the claimant is represented by
counsel, as the plaintiff was during his 2010 Board proceedings. See A.R. at 16. By that same
token, although an expert administrative agency like the Board is presumptively familiar with the
contents and meaning of its own rules and regulations, an agency is not required to anticipate and
address every possible argument a party might have made to it based on those rules and
regulations.
Similarly, the plaintiff’s attempt to cast his MMRB/extension request argument as a
“regulatory fact,” rather than “a separate claim or argument of error or injustice,” is
unpersuasive. See Pl.’s Reply at 6. Although the plaintiff lays out four aspects of his submission
to the Board, which he claims put the Board “on notice” of his MMRB/extension request
27
argument, see id. at 6–7, it is clear that the MMRB/extension request argument is a distinct
contention that was absent from his submissions to the Board. Indeed, further examination of the
plaintiff’s submissions to the Board reveals that the plaintiff actually attempted to separate,
rather than connect, his purported extension request and his MMRB processing. First, the
plaintiff stated in his 2010 submission to the Board that he had previously “indicated that ‘time
ran out’ on his pending [active federal service] extension request when NGB directed he undergo
unnecessary disability proceedings.” See A.R. at 32 (emphasis added); see also id. at 17 (stating
to the Board that “NGB directed [the plaintiff] undergo unnecessary MOS and MEB processes”
(emphasis added)). That the plaintiff at least twice characterized his MMRB processing as
“unnecessary” could fairly be read to contend that the MMRB processing was unrelated to his
purported extension request. At the very least, characterizing his MMRB processing as
“unnecessary” could not have reasonably put the Board on notice that the plaintiff considered his
MMRB processing to be a necessary result of his extension request, which he now argues before
this Court. The plaintiff also contended in his submissions to the Board that his purported
extension request was “suspended” while he underwent MMRB processing, see id. at 17, and
that the NGB required an MMRB “[i]nstead of processing [his] routine extension request, see id.
at 40 (emphasis added). These statements also strongly implied that the plaintiff was arguing
that his MMRB processing was parallel and distinct from the processing of his extension request.
It is perhaps true that the plaintiff’s reference twice in his Board submissions to “continu[ing]”
his career, see id. at 41–42, in relation to his MMRB processing could be read to imply a
causative relationship between the plaintiff’s extension request and his MMRB, but it was more
than reasonable for the Board not to make that tenuous inference, particularly in light of the
plaintiff’s other statements just discussed.
28
In short, the plaintiff never argued before the Board that his MMRB processing was proof
that he submitted an extension request. Indeed, the plaintiff never drew any connection
(causative or otherwise) between his purported extension request and his MMRB processing that
would have reasonably put the Board on notice that the plaintiff was offering his MMRB
processing as evidence that he in fact submitted an extension request in the first place. As a
result of this omission, the plaintiff has waived his ability to make that argument in this Court.
See, e.g., Koretoff, 707 F.3d at 398. The Board never had a fair opportunity to address that
argument, and therefore this Court cannot fault the Board for not doing so.
C. The Plaintiff Has Not Demonstrated Any Error in the Board’s Decision
Even assuming arguendo that the plaintiff had argued that the MMRB was proof of the
existence of his extension request, the plaintiff still would not be able to demonstrate any error in
the Board’s decision that would warrant vacatur or reversal under the APA.
First and foremost, the plaintiff has not demonstrated that the Board was unreasonable in
not applying the “regulatory presumption” that “a proper [extension] request submitted earlier
was the reason NGB directed an MMRB when presented with Tindal’s permanent medical
condition.” See Pl.’s Opp’n at 10. As the Court discussed above in reviewing the Army’s
personnel regulations, an MMRB proceeding is not automatically triggered by the submission of
a request for selective retention. See supra Part I.A. (outlining relevant regulatory framework).
Instead, Army regulations only specify, in relevant part, that referral to an MMRB is required
when (1) a soldier is issued a permanent physical profile with a numerical designator of 3 or 4; or
(2) a soldier was previously cleared by an MMRB, but “[t]he condition for which the soldier was
previously retained deteriorates or the soldier is given additional duty limitations for the
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condition.” See Army Reg. 600-60 ¶ 2-2b. Thus, referral to an MMRB is not necessarily related
at all to whether a soldier is being processed for a selective retention request.
The defendant argues that “Plaintiff’s voluntary retirement explains the basis for
Plaintiff’s medical processing” because voluntary retirement “requires a medical examination.”
See Def.’s Reply at 16; see also Army Reg. 600-8-24 ¶ 6-6 (“Medical examination prior to
retirement is required.”). The plaintiff counters, however, that “an MMRB is not a ‘medical
examination’ nor can it be part of retirement processing.” Pl.’s Reply at 2. Neither party cites to
Army regulations to support his argument on this point, and Army Regulation 600-8-24 does not
define what constitutes a “medical examination” incident to retirement. Army Regulation 600-8-
24 states only that “[t]he officer’s immediate commander will ensure the medical examination is
processed according to [Army Regulation] 40–501.” See Army Reg. 600-8-24 ¶ 6-6. That
referenced regulation, in turn, states that retirement “medical examinations” are required to
include several elements, including a full clinical evaluation, but they do not appear to require
referral to an MMRB or an MEBD. See Army Reg. 40-501 ¶ 8-12. Therefore, the regulatory
underpinning is elusive for the defendant’s argument that the retirement “medical examination”
would have necessarily triggered the plaintiff’s referral to an MMRB.
As a matter of fact, the Administrative Record provides no factual basis at all, under
applicable Army regulations, for the plaintiff to be referred to the MMRB in 2002. The plaintiff
had been issued a permanent physical profile of “3” as a result of his diabetes, but that occurred
in 1998, see Am. Comp. ¶¶ 6, 9, which was approximately four years before he was actually
processed through an MMRB in 2002. According to Army regulations, the plaintiff should have
been referred to an MMRB at the time he was issued a permanent physical profile of “3,” see
Army Reg. 600-60 ¶ 2-2.a, but he was not, see Am. Compl. ¶ 9. Read as a whole, the
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Administrative Record suggests, but does not compel, the conclusion that the plaintiff’s
processing through an MMRB was the result of an administrative error, rather than a retention
request. Most notably, an August 23, 2002 e-mail from the plaintiff’s Physical Evaluation Board
Liaison Officer (“PEBLO”), which the plaintiff cited to the Board and cites in his Amended
Complaint, see A.R. at 40–41; Am. Compl. ¶ 34, stated that the plaintiff “ha[d] not overcome the
presumption of fitness rule” contained in Army Regulation 635-40 ¶ 3-2b(2). See A.R. at 61.
That presumption of fitness only applies “[w]hen a soldier is being processed for separation or
retirement.” See Army Reg. 635-40 ¶ 3-2b(2). Furthermore, the plaintiff’s PEBLO explicitly
noted in his August 23, 2002 e-mail—just over a week before the plaintiff’s retirement date—
that “[a]t the present time, you [Major Tindal] have submitted [an] application for length of
service retirement and are presumed fit for duty.” A.R. at 61. The PEBLO never referenced any
pending retention request, despite the plaintiff’s contention that such a request was the primary
catalyst for his referral to the MMRB. See id. This is substantial evidence that the plaintiff’s
referral to an MMRB was unrelated to any purported extension request. 21
Furthermore, the Board’s decision to deny the plaintiff’s requested relief is also
supported by the July 30, 2002 e-mail from an NGB personnel staff officer, which the plaintiff
submitted in support of his application. See A.R. at 7, 62. That e-mail, which the Board
specifically discussed, see id. at 7, 12, stated that, as of July 30, 2002, the plaintiff was still
“working his packet and will forward it to [the NGB personnel officer] when it is complete.” Id.
at 62. As the Board observed in its decision, this e-mail “shows that, as late as 30 July 2002, the
applicant had not forwarded a package to the NGB office responsible for granting extensions.”
Id. at 12. The Court agrees with the reasoning of the Board on this point and finds that the
21
The plaintiff even agreed with this interpretation of his MMRB in his original Complaint, wherein he alleged that
“the [NGB] in May 2002 directed Major Tindal be processed for disability retirement through a MEB and MMRB,
both at Fort Jackson, S.C.” See Compl. ¶ 27 (emphasis added).
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Board’s conclusion that the plaintiff had not submitted an extension request is supported by
substantial evidence. 22 As a result, the plaintiff’s contentions that “the [Board] relied on
erroneous facts” and reached conclusions that were “contradicted” by Army regulations, see Pl.’s
Opp’n at 9–11, is unsupported by the record. 23
Finally, even had the plaintiff been able to present evidence that he submitted a retention
request, the Board’s alternative conclusions that (1) “[h]ad such a request been submitted earlier,
it appears the NGB could have had it approved with a waiver or pending the MMRB,” and
(2) “there is no evidence [the retention request] was submitted early enough to allow the NGB to
process it prior to [the plaintiff’s] retirement,” see A.R. at 12–13, were substantially supported by
military regulations. First, it is clear that, even assuming the plaintiff had submitted a selective
retention request packet in February 2002, that submission would have been in violation of
National Guard regulations, which state that retention requests “should be forwarded to [Army
NGB headquarters] 12 months prior to the soldier completing maximum years of Active Federal
Service.” See NGR 600-5 ¶ 5-4a(3) (1990) (emphasis added). Under that regulation, the
plaintiff’s retention request should have been forwarded no later than September 1, 2001.
Additionally, it is clear that Army regulations do not permit the “clock [to] r[u]n out” on a
retention request due to medical processing, see Compl. ¶ 36, as the plaintiff has suggested it did
in this case. Army regulations make clear that, for a soldier like the plaintiff who was “[a]n
active duty officer who [was] within 1 year of [the] date of mandatory retirement for age or
22
The plaintiff argues that “at first impression, [the July 30, 2002] email merely suggests that [the personnel
officer’s] version of Tindal’s extension packet was ‘not complete.’” See Pl.’s Opp’n at 10 (emphasis omitted).
There is no basis in the record to draw such a conclusion, however. The July 30, 2002 e-mail makes no reference to
multiple “version[s]” of the extension request packet, or that any other “version” of the packet had in fact been
submitted through appropriate channels. See A.R. at 62.
23
Indeed, the plaintiff’s multiple uses of the word “perhaps” in his argument on this point speak volumes. See id. at
10. The plaintiff’s speculation about the meaning of the limited evidence relating to the existence or non-existence
of his extension request is insufficient to overcome the substantial evidence supporting the Board’s conclusions,
particularly considering the “unusually deferential” standard of review that applies to review of the Board’s
decisions. See, e.g., Piersall, 435 F.3d at 324; Hill, 597 F. Supp. 2d at 29.
32
length of service,” he would have been exempted from an MMRB unless he still had “sufficient
time remaining to be eligible for reassignment and receive assignment instructions.” See Army
Reg. 600-60 ¶ 2-3f. Further, Army regulations state that when a solider is processed through an
MMRB, “re-enlistment or extension of enlistment will not be denied on medical grounds.” Id.¶ 3-7c. In short, it would have been contrary to the normal operation of multiple Army
regulations for the plaintiff to have been denied an active-service extension simply because he
was referred to an MMRB, particularly if, as the plaintiff contends, the entire purpose of the
MMRB was to facilitate such an extension. Hence, in addition to the reasons previously
discussed, the cited Army regulations further bolster the reasonableness of the Board’s
conclusion that the plaintiff never submitted a proper selective retention request.
In line with the foregoing discussion, the Court concludes that the Board’s “explanations
for [its] choice demonstrate that [it] ‘permissibly exercised [its] discretion and made a choice that
is supported by at least substantial evidence.’” Hill, 597 F. Supp. 2d at 29. Although the
plaintiff seeks de novo review of the Board’s analysis, it is not this Court’s place to determine
whether the Board’s decision was “substantively correct.” Id. The Board’s decision was neither
“arbitrary and capricious” nor “unsupported by substantial evidence,” and therefore the
defendant is entitled to judgment as a matter of law. Accordingly, the defendant’s motion for
summary judgment will be granted, and the plaintiff’s cross-motion for summary judgment will
be denied.
It is unfortunate that, after a long and productive career in the U.S. Army, the plaintiff’s
tenure came to such a contentious conclusion. Although the plaintiff will not retire at the rank of
Lieutenant Colonel as a result of the Board’s decision, his twenty-plus years of distinguished
service to this country should be a source of continued satisfaction and pride.
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IV. CONCLUSION
As the foregoing discussion concludes, the plaintiff has not established sufficient grounds
to supplement the administrative record in this action, and therefore the plaintiff’s motion to
supplement the administrative record is denied. Furthermore, the plaintiff waived his ability to
argue, as he attempts to argue before this Court, that his referral to an MMRB was offered as
evidence that the plaintiff had submitted an active-duty extension request. Finally, the Court
concludes that the plaintiff has not presented any sufficient grounds to set aside the Board’s
September 2010 decision to deny the plaintiff the relief he requested. As a result, the
defendant’s motion for summary judgment is granted, and the plaintiff’s cross-motion for
summary judgment is denied.
An appropriate Order accompanies this Memorandum Opinion.
Date: May 23, 2013
/s/ Beryl A. Howell
BERYL A. HOWELL
United States District Judge
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