Buholtz v. United States

In the United States Court of Federal Claims
NOT FOR PUBLICATION
No. 16-408C
(Filed: February 16, 2023)
)
KENNETH L. BUHOLTZ, )
)
Plaintiff,
)
v.
)
UNITED STATES, )
)
Defendant. )
)
Kenneth L. Buholtz, McKinney, Texas, pro se.
Delisa M. Sanchez, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, Washington DC, for defendant, with whom on the
briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General,
Patricia M. McCarthy, Director, Martin F. Hockey, Jr., Deputy Director,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice,
Washington DC. Patrick D. Kummerer, Major, Judge Advocate General’s Corps,
Litigation Attorney, U.S. Army Legal Services Agency, Fort Belvoir, VA,
Of Counsel.
OPINION AND ORDER
BONILLA, Judge.
Kenneth L. Buholtz served in the United States Army as an enlisted service
member and then a commissioned officer, rising to the rank of Lieutenant Colonel.
His military service–spanning from 1975 through 2011–included two periods of
active duty bookending a near decade in the Army Reserve. Mr. Buholtz’s military
career derailed following civilian criminal charges of child exploitation, resulting
in his prosecution, conviction, and incarceration. Concurrently, Mr. Buholtz was
diagnosed as suffering from post-traumatic stress disorder (PTSD) and panic
disorder stemming from his tours of duty in Iraq.
In this action, Mr. Buholtz challenges the basis for and nature of his
separation from the Army and numerous collateral issues presented to the Army
Board for Correction of Military Records (ABCMR or Board) and the United States
Department of State. Pending before the Court is plaintiff’s motion to supplement
the administrative record (ECF 132). 1 For the reasons set forth below, plaintiff’s
motion is DENIED and this action is DISMISSED-IN-PART for lack of subject
matter jurisdiction.
BACKGROUND
I. Military Service
On March 28, 1975, Mr. Buholtz enlisted in the Army as a Private First Class
and entered active duty on August 14, 1975. AR 2331–32, 3607–08. 2 On April 25,
1980, Mr. Buholtz received his commission and was appointed a Second Lieutenant
Regular Army Aviation Officer through the Michigan State University Reserve
Officers’ Training Corps (ROTC). AR 720, 1884, 1886. Mr. Buholtz remained on
active duty until September 30, 1992, when he voluntarily separated under the
Voluntary Separation Incentive (VSI) program during the post-Gulf War military
force reduction. AR 1419–20, 1779–81, 2336–37. On September 1, 1999, while
continuing to serve in the Army Reserve, Mr. Buholtz was promoted to the rank
of Lieutenant Colonel. AR 1671. Recalled to active duty in the aftermath of the
September 11, 2001 terrorist attacks, Mr. Buholtz served from January 8, 2002,
until October 31, 2011. AR 1441–42, 2662–63, 2727–29.
Relevant here, between June 2003 and April 2004, Mr. Buholtz served in the
Republic of Colombia, South America. AR 720, 3991. Thereafter, from 2006 to 2007
and again in 2009, Mr. Buholtz served two tours of duty in Iraq in support of
Operation Iraqi Freedom. 3 AR 720, 1702–06, 2662. Among his military awards and
decorations, Mr. Buholtz was awarded the Bronze Star Medal “for exceptionally
meritorious service” and the Army Commendation Medal “for meritorious service,”
respectively, during his deployments to Iraq. AR 1704, 2439–40. During his later
1This case was transferred to the undersigned for adjudication on February 28, 2022, pursuant to
Rule 40.1(b) of the Rules of the United States Court of Federal Claims (RCFC). See ECF 140–41.
Four days later, the parties filed a joint request to stay proceedings pending further consideration
by the ABCMR. See ECF 142–43. Briefing on plaintiff’s motion to supplement the administrative
record continued through January 17, 2023. See ECF 132–39, 147–67.
2 The administrative record filed by the government comprises 5,064 pages. See ECF 33, 110, 112,
123, 149. “AR __” cites to a Bates-numbered page in the administrative record (1 to 4,201 and B3352
to B4214).
3Between December 1990 and April 1991, during his initial service on active duty, Mr. Buholtz
was deployed to Iraq in support of Operation Desert Storm. AR 720, 2970. Thereafter, between
January 2002 and July 2003, Mr. Buholtz was deployed to the demilitarized zone in Korea. AR 720,
2970–71.
2
deployments to areas of combat operations, Mr. Buholtz began exhibiting symptoms
of PSTD and panic disorder–a diagnosis later confirmed by the Medical Evaluation
Board (MEB). AR 2968–87 (Jan. 24, 2011 MEB psychological examination and
diagnosis); AR 2988–2994 (Jan. 14, 2011 MEB physical examination and diagnosis).
On May 6, 2011, the Physical Evaluation Board (PEB) found Mr. Buholtz physically
unfit for duty and recommended that he be placed on the Temporary Disability
Retirement List pending reexamination in February 2012 or a determination of
permanent disability by the U.S. Army Physical Disability Agency (PDA). 4 See
AR 2946–48. The PDA review was administratively terminated on July 11, 2011.
See AR 270.
In the interim, on March 31, 2010–immediately following his civilian arrest
for the alleged sexual assault of a minor child and release on bail (discussed below)–
Mr. Buholtz submitted a Request for Voluntary Special (Expedited) Retirement.
AR 2895–97. On August 5, 2010, after receiving notice of the pending criminal
charges, Mr. Buholtz’s Command initiated adverse elimination proceedings.
AR 2755–59; see, e.g., AR 505–11, 2751–53, 2921 (Board of Inquiry scheduling).
On October 4, 2010, Mr. Buholtz requested a Voluntary Retirement in Lieu of
Elimination, seeking to be released from active duty and placed on the retired list
pending the conclusion of the above-referenced MEB/PEB process. AR 713–15.
On July 21, 2011, the Secretary of the Army, by and through the Deputy
Assistant Secretary of the Army (Review Boards), Manpower and Reserve Affairs,
denied Mr. Buholtz’s request for medical disability retirement and, instead,
approved his retirement in lieu of elimination. AR 270. Consistent with the
recommendation of the Army Grade Determination Review Board (AGDRB),
Mr. Buholtz was separated effective October 31, 2011, and placed on the retired list
effective November 1, 2011, with a reduction in grade from Lieutenant Colonel (O-5)
to Major (O-4). AR 270; see AR 271–72, 702–03, 719, 1303–04, 2370–72. The
reduction in grade was based on the AGDRB’s determination that Mr. Buholtz
last served satisfactorily as a Major. AR 272. Mr. Buholtz’s Certificate of Release
or Discharge from Active Duty (DD Form 214) lists his Type of Separation as
“Retirement” and Character of Service as “Honorable,” but includes the Separation
Code “RNC” based upon “Unacceptable Conduct.” AR 2662. As of his retirement,
Mr. Buholtz was credited with 27 years and one day of military service under
10 U.S.C. § 1405. 5 AR 702.
4In early May 2011, the Department of Veterans Affairs proposed a 50% disability rating for
Mr. Buholtz attributable to PTSD and a 20% disability rating for back issues (i.e., angular bulging,
thoracolumbar spine) related to his military service. AR 383–97, 2948–49.
5 Mr. Buholtz’s requests to be placed on voluntary excess leave and/or accrued transition leave rather
than remain in civilian confinement status between August 23, 2011, and his November 1, 2011
retirement date were denied. AR 104–08. Mr. Buholtz’s civilian confinement began on or about
June 13, 2011. See AR 105. By law, Mr. Buholtz is not entitled to service credit during periods of
civilian confinement. 10 U.S.C. § 972(b)(3).
3
II. Civilian Criminal Proceedings
On March 22, 2010, Mr. Buholtz was arrested on a Collin County (Texas)
arrest warrant, signed by a magistrate judge, on the charged offense of sexual
assault of a child (a second degree felony). 6 AR 2760–62. On March 26, 2010,
he was released on bond initially set at $1 million (once reduced to $15,000 cash
or $150,000 bond) and ordered to wear a global positioning satellite (GPS) electronic
ankle monitor bracelet. AR 2762, 2764–65. Within hours of his release, and again
on April 7, 2010, Mr. Buholtz was arrested for violating a condition of his bond and
the terms of a March 23, 2010 Emergency Protective Order directing he stay away
from his alleged victim. 7 AR 2774–76; see also AR 2770–73. On April 23, 2010,
Mr. Buholtz was again released on bond with stricter conditions. AR 165–67, 2784–
85; see also AR 2786–89 (Military Protective Order modifications). On December 9,
2010, a Collin County grand jury returned a True Bill of Indictment against
Mr. Buholtz, charging him with eighteen (18) counts of sexual abuse of a minor. 8
AR 301–04.
On June 8, 2011, a federal grand jury sitting in the Eastern District of Texas
returned a one-count indictment (under seal) against Mr. Buholtz, charging him
with interstate transportation of a minor with the intent to engage that minor in
sexual activity, in violation of 18 U.S.C. § 2423(a). See United States v. Buholtz,
No. 11-cr-135 (E.D. Tex.) (ECF 1). Immediately following his June 13, 2011 arrest,
Mr. Buholtz made his initial appearance before a United States magistrate judge,
was arraigned and ordered detained pending trial. See id. (ECF 5, ECF 10 at 1).
On November 14, 2011, Mr. Buholtz pleaded guilty to a one-count
superseding indictment charging him with interstate transportation of a minor
for sexual purposes in violation of 18 U.S.C. § 2423(a). See Buholtz, No. 11-cr-135
(E.D. Tex.) (ECF 45, 49–56). In pleading guilty, Mr. Buholtz admitted transporting
a minor from California to Texas in March 2007 with the intent to engage in sexual
6 On March 8, 2010, two weeks prior to his arrest, Mr. Buholtz filed a petition for divorce. AR 2541–
46. In contesting the Army’s decision to reduce his retirement grade from Lieutenant Colonel to
Major, Mr. Buholtz noted the timing of the child abuse charges filed against him relative to his filing
for divorce, further noting: “Indeed, my wife has herself since been charged with child sexual abuse
offenses in Columbia, which raises serious questions about her credibility as to the allegations
against me . . . .” AR 378.
7A similar Military Protective Order was entered on March 30, 2010. Compare AR 2770–73 with
AR 2780–83.
8 On February 1, 2011, without elaboration, the Army Fort Hood (Texas) Case Review Committee
reviewed the alleged child abuse incident report and “determined that it did not meet [the] criteria
for child abuse.” AR 235.
4
activity and, in fact, engaged in sexual activity with the minor in both states. 9
See Buholtz, No. 11-cr-135 (E.D. Tex.) (ECF 55). For the commission of this
federal offense, on March 25, 2013, Mr. Buholtz was sentenced to a ten-year term
of imprisonment, followed by a five-year term of supervised release, and ordered
to pay a mandatory $100 special assessment. 10 See Buholtz, No. 11-cr-135
(E.D. Tex.) (ECF 85–86). Mr. Buholtz was released from federal prison on
February 3, 2020, 11 and began serving his term of supervised release.
Mr. Buholtz was rearrested on November 2, 2022, in the Eastern District
of Texas for allegedly violating the terms of his supervised release. 12 See Buholtz,
No. 11-cr-135 (E.D. Tex.) (ECF No. 147). During his November 3, 2022 initial
appearance, the duty magistrate judge granted the United States’ motion to detain
Mr. Buholtz. 13 See id. (ECF 147–50). Thereafter, on December 15, 2022, the
magistrate judge conducted a final revocation hearing and found “ample evidence”
Mr. Buholtz violated the terms of his supervised release. See id. (ECF 158, 160).
The magistrate judge continued Mr. Buholtz’s detention and recommended an
18-month term of imprisonment, followed by five years of supervised release. See
id. (ECF 160 at 7). The magistrate judge further recommended imposing an
additional special condition that “[Mr. Buholtz] must not allow any female friends,
associates, colleagues, or tenants to reside on [his] property or at [his] residence”
during his term of supervised release. See id.9Mr. Buholtz’s efforts to later withdraw his guilty plea were denied. See United States v. Buholtz,
No. 11-cr-135, 2013 WL 842851 (E.D. Tex. Jan. 24, 2013), adopted, 2013 WL 842845 (E.D. Tex.
Mar. 6, 2013), aff’d, 562 F. App’x 213 (5th Cir.), cert denied, 574 U.S. 903 (2014). His subsequent
request to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 were also denied.
See Buholtz v. United States, No. 15-cv-70, 2019 WL 1396427 (E.D. Tex. Feb. 11, 2019), adopted,
2019 WL 1380408 (E.D. Tex. Mar. 26, 2019), reconsideration denied, 2021 WL 14277639 (E.D. Tex.
Apr. 15, 2021).
10 According to the Collin County (Texas) 296th District Court website, on April 12, 2013, following
Mr. Buholtz’s guilty plea and sentencing on the federal charge, the state charges were dismissed.
See https://apps2.collincountytx.gov/JudicialRecords (Case No. 401-82696-2010) (criminal docket)
(last visited Feb. 16, 2023); see also AR 3496 (dismissal of emergency protective order). Thereafter,
on or about September 18, 2020, Mr. Buholtz’s related convictions for violating the March 23, 2010
Emergency Protective Order were expunged. AR 3408–14.
See https://www.bop.gov/mobile/find_inmate/byname.jsp#inmate_results (inmate: Kenneth NMI
11
Buholtz) (last visited Feb. 9, 2023).
12 The violations alleged included: an August 24, 2022 arrest on a state charge of indecent assault;
failure to abide by the terms of a sex offender treatment program resulting in his dismissal from
the program for inappropriate behavior on or about August 30, 2022; possession of sexually explicit
materials (i.e., nude photographs of his ex-wife Mr. Buholtz admitted accessing from her cellphone);
unauthorized email contact with his minor child; and failure to timely submit monthly supervision
reports. See Buholtz, No. 11-cr-135 (E.D. Tex.) (ECF No. 160 at 2).
13On November 9, 2022, the assigned magistrate judge found probable cause of the alleged
supervised release violations and ordered Mr. Buholtz’s continued detention. See id. (ECF No. 154).
5
On January 25, 2023, Mr. Buholtz appeared before a United States district
judge for allocution. See id. (ECF 163). Save the recommended 18-month prison
term, the district judge adopted the findings and conclusions of the magistrate
judge; the district judge determined an upward variance was warranted and
sentenced Mr. Buholtz to a 36-month term of incarceration. See id. (ECF 163–64).
Judgment was entered accordingly. See id. (ECF 165). Mr. Buholtz is currently
incarcerated in the Fannin County Adult Detention Center, located in Blue Ridge,
Georgia.
III. Administrative Military Proceedings
Beginning in or about June 2005, and continuing through the litigation of
this case, Mr. Buholtz filed a series of applications for administrative relief and
requests for reconsideration with the ABCMR, including:
Central Issue(s) ABCMR Application Decision Date Result
Docket No. Date (AR Cite) (AR cite)
Promotion to Colonel (FY 2004) 2005-0009253 June 1, 2005 Oct. 25, 2005 Denied
(AR 3185) (AR 3940–43)
– Requests for Reconsideration 2010-0018892 Oct. 18, 2006 Feb. 10, 2011 Returned
(AR 3181–3251) & (AR 1504) w/o action
July 15, 2010 (***) 14
Reimbursement: Physical Security 2010-0014215 May 5, 2010 July 27, 2010 Returned
Upgrades to Private Residence (Colombia) (AR 3058–62) (AR 1540) w/o action
Promotion to Colonel (FY 2005 & FY 2006) 2006-0015005 (***) Sept. 11, 2007 Denied
(AR 1617–22)
– Requests for Reconsideration 2010-0018892 Apr. 30, 2009 Feb. 10, 2011 Returned
(AR 1505–09) & (AR 1504) w/o action
July 15, 2010 (***)
OER Expungement (June 5, 2003 to May 2007-0013560 Sept. 29, 2007 Nov. 27, 2007 Denied
15, 2004) (AR 3141–80) (AR B4181–85)
Total Operational Flying Duty Credit 2008-0011488 July 10, 2008 June 25, 2009 Denied
(TOFDC) & Pilot Status Code (PSC) (AR 675–82) (AR 1569–79)
– Request for Reconsideration 2010-0013087 Apr. 11, 2010 Aug. 10, 2010 Denied
(AR 590–643) (AR 563–68)
Military Whistleblower Protection Act, 2009-0010073 Apr. 30, 2009 June 22, 2010 Denied
10 U.S.C. § 1034 (AR 3063–3140) (AR 571–89)
(AR B3352–B4214)
– Requests for Reconsideration 2016-0007218 Mar. 26, 2016 May 29, 2018 Returned
(AR 2647–58) & (AR 2624–25) w/o action
Oct. 31, 2017
(AR 2627–42)
Medical Retirement (Lieutenant Colonel) 2012-0022969 Dec. 9, 2012 Aug. 27, 2013 Denied
vice Honorable Retirement for (AR 3304–51) (AR 250–56)
Unacceptable Conduct (Major)
14“(***)” denotes ABCMR applications and reconsideration requests not included in the
administrative record but reflected in the Board’s decisions or other correspondence.
6
– Request for Reconsideration 2014-0015567 (***) Feb. 2, 2016 Denied
(AR 13)
– Request for Reconsideration 2021-0008655 Dec. 16, 2020 May 12, 2022 Denied
(AR 3405–06, (AR 3356–75)
AR 3416)
Survivor Benefit Plan (SBP) election 2013-0000442 Dec. 5, 2012 Aug. 8, 2013 Denied
(AR 364–70) (AR 319–21)
Medical Retirement (Lieutenant Colonel) 2014-0015567 Aug. 20, 2014 Jan. 28, 2016 Denied
vice Honorable Retirement for (AR 129–245) (AR 15–33)
Unacceptable Conduct (Major) &
OER (Apr. 9, 2010 to Feb. 1, 2011)
– Request for Reconsideration 2016-0007218 Mar. 26, 2016 (***) May 29, 2018 Returned
(AR 2624–25) w/o action
– Request for Reconsideration 2021-0008655 Dec. 16, 2020 May 26, 2022 Denied
(AR 3405–06, (AR 3354)
AR 3416)
Time-In-Service & “Bad Time” lost during 2015-0006188 Oct. 15, 2014 Feb. 11, 2016 Denied
civilian confinement under 10 U.S.C. § 972 (AR 3258) (AR 3–12)
– Requests for Reconsideration 2017-0019246 Aug. 7, 2017 July 1, 2019 Denied
(2014-0018954) (AR 2875–2885) & (AR 2222–30)
(2014-0021088) Oct. 18, 2017
(2021-0007961) (AR 2660–2871)
– Request for Action (final military 2021-0007961 Dec. 22, 2020 (***) Aug. 17, 2021 Granted
pay-out of accrued leave $1,974.96) (***)
(DFAS paid)
Survivor Benefit Plan (SBP) 2016-0004885 Feb. 18, 2016 Jan. 30, 2018 Granted
(election and overpayment) (AR 2523–2607) (AR 2287–96)
Voluntary Separation Incentive (VSI) 2018-0003559 Jan. 17, 2018 July 15, 2019 Denied
renumeration (waiver) (AR 2297–2307) (AR 2212–19)
Concurrent Retirement Disability Pay 2019-0010257 Aug. 7, 2017 (***) Feb. 14, 2020 Denied
(CRDP) (AR 2152–62)
– Request for Reconsideration 2020-0007129 Dec. 14, 2020 Feb. 9, 2021 Denied
(AR 2006–40) & (AR 1994–2005)
Apr. 21, 2020
(AR 2124–40)
Transfer Education Benefits (TEB) 2021-0005848 July 27, 2020 June 3, 2021 Granted
(dependent child) (AR 3497–3532) (AR 3377–82)
IV. Procedural History
On March 13, 2015, while incarcerated in the Federal Correctional Complex,
Petersburg (FCI Petersburg), located in Petersburg, Virginia, Mr. Buholtz initiated
this action in the United States District Court for the District of Columbia. See
Buholtz v. Trombitas, No. 15-cv-370 (D.D.C.) (ECF 1). In his original complaint,
Mr. Buholtz appealed a housing reimbursement dispute related to his active duty
service in Colombia between July 2003 and April 2004. Mr. Buholtz further
asserted that his two-month premature reassignment stateside was in retaliation
7
for his reported whistleblowing activities. 15 Mr. Buholtz named as defendants
seven current and retired military officers and civilian government officials as
well as the Army and State Department. Alleging negligence and intentional torts,
Mr. Buholtz claimed money damages in the forms of “actual financial damages,”
“whistleblower incentives,” “treble damages,” and “punitive damages” totaling
more than $11.6 million. See Buholtz, No. 15-cv-370 (D.D.C.) (ECF 1 at 13).
On January 27, 2016, the District of Columbia District Court transferred
the action to this Court, citing the Tucker Act, 28 U.S.C. § 1491(a)(1), which vests
the United States Court of Federal Claims with exclusive jurisdiction over claims
for money damages against the United States “not sounding in tort.” 16 See id.Between March 31, 2016, and August 7, 2019, Mr. Buholtz filed five amended
complaints. ECF 3–4, 6, 28, 75. Count One of the 11-count fifth amended
complaint alleges the government failed to timely respond to 25 requests for
information and documents submitted under the Freedom of Information Act
(FOIA), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. Count Two asserts
the ABCMR failed to timely adjudicate 21 applications for the correction of military
records under 10 U.S.C. § 1552. Count Three charges that the Army’s April 2004
reassignment of Mr. Buholtz from Colombia stateside was arbitrary, capricious, an
abuse of discretion, and contrary to law, entitling him to lost Aviation Incentive Pay
under 37 U.S.C. § 204. Count Four asserts that during his deployment to Colombia,
Mr. Buholtz engaged in whistleblower activities, meriting protection and relief
under the Military Whistleblower Protection Act, 10 U.S.C. § 1034. Count Five
asserts Mr. Buholtz was wrongfully denied his housing allowances while stationed
15 On March 11, 2004, Mr. Buholtz filed a complaint with the United States General Accounting
Office (n/k/a United States Government Accountability Office (GAO)) alleging fraud, waste, and
abuse within his unit station in Colombia. AR B3446–47; see AR B3490–3501 (U.S. Army Inspector
General Agency Report of Investigation). Thereafter, beginning on June 8, 2008, Mr. Buholtz
reported incidents of retaliation to the Department of Defense Office of Inspector General
(DoD OIG). AR 2633–34, 3110.
16The United States moved to dismiss the complaint for lack of subject matter jurisdiction pursuant
to Federal Rule of Civil Procedure 12(b)(1). Specifically, the government argued that Mr. Buholtz’s
claims under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) & 2671 et seq., were barred
due to: plaintiff’s failure to exhaust administrative remedies, 28 U.S.C. § 2675(a); the expiration of
the governing two-year statute of limitations, 28 U.S.C. § 2401(b); the Feres doctrine, Feres v. United
States, 340 U.S. 135 (1950); and the fact that the alleged tortious acts took place in a foreign country,
28 U.S.C. § 2680(k). The government further noted that punitive damages against the United States
are statutorily barred, 28 U.S.C. § 2674. Finally, the government argued that plaintiff’s demand for
monetary damages against the United States in excess of $10,000 for claims not sounding in tort fell
within the exclusive jurisdiction of the Court of Federal Claims, 28 U.S.C. § 1491(a)(1). In response
to the government’s dispositive motion, Mr. Buholtz moved to transfer the case to this Court in
accordance with 28 U.S.C. § 1631. In granting the cross-motion to transfer the case, the district
court did not address the tort claims over which this Court lacks jurisdiction. See Starnes v. United
States, 162 Fed. Cl. 468, 473 (2022) (“The Tucker Act expressly states that this Court lacks subject
matter jurisdiction over claims sounding in tort.” (citing 28 U.S.C. § 1491(a)(1); listing cases
discussing well-settled jurisdictional constraints).
8
in Colombia under 37 U.S.C. § 204 and, thereafter, the government foreclosed the
continued leasing of Mr. Buholtz’s Colombian residence. Count Six contests the
accuracy of the alleged “feint praise” included in Mr. Buholtz’s Department of the
Army (DA) Form 67-9 (Officer Evaluation Report or OER) for the period June 5,
2003 through May 15, 2004. 17 Count Seven avers Mr. Buholtz is entitled to be
retroactively considered for promotion to Colonel by a duly constituted Special
Selection Board (SSB) and, if selected, awarded constructive service and
resulting back pay and allowances. Count Eight challenges the Army’s denial of
Mr. Buholtz’s request for a waiver regarding the recoupment of approximately
$150,000 in VSI payments made following Mr. Buholtz’s 1992 voluntary separation
due to his post-October 2011 collection of military retired pay. Count Nine contests
the authority of senior officers in Mr. Buholtz’s chain of command to “artificially
insert themselves” into his Officer Evaluation Report (OER) for the period of
April 9, 2010, through February 1, 2011. 18 Count Ten asserts that Mr. Buholtz’s
accrued leave and time in service (TIS) was not correctly calculated at the time of
his separation. 19 Finally, in Count Eleven, Mr. Buholtz claims he was wrongly
separated at the reduced grade of Major and is, instead, entitled to a medical
disability retirement at the grade of Lieutenant Colonel or Colonel under 10 U.S.C.
§ 1201.
Save the parties’ continuing (and evolving) dispute regarding the
administrative record, this matter has been effectively stayed since December 2017,
to allow the ABCMR to further consider Mr. Buholtz’s administrative claims and
the parties to discuss the contents of the administrative record. See, e.g., ECF 44,
47, 77, 92, 105, 108, 116, 121, 143, 145, 148, 151, 153, 155, 158, 159, 166. In
assessing plaintiff’s motion to supplement the administrative record (ECF 132),
the Court necessarily reviewed the 5,064-page administrative record filed to date
and examined the claims alleged to determine whether the tendered supplemental
documents–totaling 685 pages–are duplicative or cumulative and, if not, whether
they are sufficiently probative of issues currently before the Court. In doing so, the
Court determined that Counts I, II, and IV are outside the Court’s jurisdiction and
must be dismissed. See RCFC 12(h)(3) (“If the court determines at any time that
it lacks subject-matter jurisdiction, the court must dismiss the action.”); Folden v.
United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (“Subject-matter jurisdiction
may be challenged at any time by the parties or by the court sua sponte.”) (citing
Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)).
17 The challenged OER is at AR 3192–93.
18 The challenged OER is at AR 1695–97.
19In his fourth amended complaint, Mr. Buholtz also asserted that his Survivor Benefit Plan (SBP)
account was not properly administered under 10 U.S.C. §§ 1147–55.
9
DISCUSSION
I. Subject Matter Jurisdiction
A. Count I: Freedom of Information Act and Privacy Act
In Count I, Mr. Buholtz alleges the government failed to timely respond to
his 25 requests for information and documents submitted under the Freedom of
Information Act, 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a. In support
of this Court’s authority to adjudicate the government’s responsiveness to his
FOIA requests, Mr. Buholtz cites a portion of 5 U.S.C. § 552a(g)(4) (civil remedies),
which provides in full:
In any suit brought under the provisions of subsection (g)(1)(C) or (D)
of this section in which the court determines that the agency acted in
a manner which was intentional or willful, the United States shall be
liable to the individual in an amount equal to the sum of–
(A) actual damages sustained by the individual as a result of
the refusal or failure, but in no case shall a person entitled to
recovery receive less than the sum of $1,000; and
(B) the costs of the action together with reasonable attorney fees
as determined by the court.
5 U.S.C. § 552a(g)(4).
However, jurisdiction over such claims is statutorily vested exclusively in
United States district courts. See § 552a(g)(1) (“[T]he individual may bring a civil
action against the agency, and the district courts of the United States shall have
jurisdiction in the matters under the provisions of this subsection.”); Snowton v.
United States, 216 F. App’x 981, at *1 (Fed. Cir. 2007) (Court of Federal Claims
lacks jurisdiction over Privacy Act and Freedom of Information Act claims) (citing
Instrument Sys. Corp. v. United States, 212 Ct. Cl. 99, 104, 546 F.2d 357 (1976)).
Accordingly, Count I must be dismissed.
B. Count II: Timeliness of ABCMR Decisions
Count II asserts the ABCMR failed to timely adjudicate Mr. Buholtz’s
21 applications for administrative relief in accordance with 10 U.S.C. § 1557.
Section 1557(b) provides:
10
Clearance deadline for all applications.–Final action by a Corrections
Board on all applications received by the Corrections Board (other than
those applications considered suitable for administrative correction)
shall be completed within 18 months of receipt.
10 U.S.C. § 1557(b). The statute provides for a discretionary Secretarial
(nondelegable) waiver of this deadline and notes that the “[f]ailure of a
Corrections Board to meet the applicable timeliness standard . . . does not
confer any presumption or advantage with respect to consideration by the
board of any application.” See id. § 1557(c)–(d); see Lewis v. United States,
476 F. App’x 240, 245 (Fed. Cir. 2012) (“[T]he failure to meet the timeliness
standard [in § 1557] cannot be the basis for finding error in the BCNR’s
decision.”).
Moreover, as specified in the statute, the consequence of an alleged
untimely adjudication by the ABCMR is inclusion of the matter in an annual
report to Congress by the Army Secretary–not mandated monetary damages
to an individual applicant. See 10 U.S.C. § 1557(e). Because the statute is
not money-mandating, this claim falls outside the jurisdiction of this Court.
See Lewis, 476 F. App’x at 244 (quoting Moden v. United States, 404 F.3d
1335, 1341 (Fed.Cir.2005); Collins v. United States, 67 F.3d 284, 286
(Fed. Cir. 1995)). Accordingly, Count II must be dismissed.
C. Count IV: Military Whistleblower Protection Act
In Count IV, Mr. Buholtz seeks relief under the Military Whistleblower
Protection Act, 10 U.S.C. § 1034, as amended Pub. L. 117-286, 136 Stat. 4196
(Dec. 27, 2022). In his complaint, however, Mr. Buholtz twice acknowledges
that the statute is not money-mandating. See ECF 75 at 18, 20. As such,
this Court lacks jurisdiction to adjudicate Count IV. 20 See Lewis, 476 F.
App’x at 244 (affirming Court of Federal Claims’ dismissal of whistleblower
claims for lack of jurisdiction) (citing Gant v. United States, 63 Fed. Cl. 311,
316 (2004); Soeken v. United States, 47 Fed. Cl. 430, 433 (2000); Hernandez v.
United States, 38 Fed. Cl. 532, 536–37 (1997)). Accordingly, Count IV must
be dismissed.
20Mr. Buholtz’s citation to the whistleblower awards under 26 U.S.C. § 7623(b) is unavailing. That
statute–applicable to civilian employees and contractors and not military personnel–vests exclusive
jurisdiction over the propriety of any award in the United States Tax Court, see id. § 7623(b)(4),
and vests exclusive jurisdiction over any civil or enforcement action in federal district courts. See id.
§ 7623(d)(2)(A)(ii).
11
II. Supplementation of the Administrative Record
A. Legal Standard
The Supreme Court has long held that “the focal point for judicial review
should be the administrative record already in existence, not some new record
made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973).
Consequently, “the parties’ ability to supplement the administrative record is
limited.” Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1379 (Fed. Cir.
2009). More specifically, “supplementation of the record should be limited to cases
in which ‘the omission of extra-record evidence precludes effective judicial review.’”
Id. at 1380 (quoting Murakami v. United States, 46 Fed. Cl. 731, 735 (2000), aff’d,
398 F.3d 1342 (Fed. Cir. 2005)). “The purpose of limiting review to the record
actually before the agency is to guard against courts using new evidence to
‘convert the “arbitrary and capricious” standard into effectively de novo review.’” Id.(citation omitted). This legal standard applies to judicial review of decisions made
by military corrections boards. Walls v. United States, 582 F.3d 1358, 1367–68
(Fed. Cir. 2009).
“In military pay cases before this court, an alternative to supplementation
of the administrative record is to remand the case to the corrections board whose
decision is being reviewed, so that the board may render a decision on a complete
record.” Miller v. United States, 119 Fed. Cl. 717, 727 (2015) (citing cases). Indeed,
a court may, only in exceedingly rare circumstances, consider in the first instance
evidence not presented to the corrections board; such evidence may be new or newly
discovered or material the military pay claimant failed or elected not to submit
as part of their application for administrative relief. See Walls, 582 F.3d at 1367(“If the record is inadequate, ‘[t]he reviewing court is not generally empowered to
conduct a de novo inquiry into the matter being reviewed and to reach its own
conclusions based on such an inquiry,’ and instead ‘the proper course, except in
rare circumstances, is to remand to the agency for additional investigation or
explanation.’”) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744
(1985)); see also Barnick v. United States, 591 F.3d 1372, 1382 (Fed. Cir. 2010)
(“[W]here evidence could have been submitted to a corrections board and was not,
the evidence is properly excluded by the Court of Federal Claims.”) (citing Walls,
582 F.3d at 1358)). A notable exception to the general rule is “where bad faith or
bias is alleged to have tainted the proceedings under review.” Miller, 119 Fed. Cl.
at 727. This case presents no credible allegation of bad faith or bias.
To merit judicial consideration of supplemental material or a remand to
the military corrections board for further administrative proceedings, the proffered
supplement to the administrative record must be probative. Miller, 119 Fed. Cl. at
727. “Probative evidence” is defined as: “Evidence that tends to prove or disprove
a point in issue.” Probative Evidence, BLACK’S LAW DICTIONARY 701 (11th ed. 2019).
12
Here, a significant number of tendered documents are already included in the
administrative record. The remaining documents are cumulative or not probative
and, consequently, their omission does not preclude effective judicial review or
otherwise warrant remand.
B. Proffered Supplemental Record
1. Duplicate Records
In the index accompanying his original motion to supplement the
administrative record, Mr. Buholtz identifies 24 categories of documents totaling
685 pages (Bates numbers B4216 to B4900). See ECF 132-1 at 1–2. On October 11,
2022, following discussions with defendant’s counsel, Mr. Buholtz filed–and the
Court granted–an unopposed motion to partially withdraw his motion to
supplement the administrative record; specifically, the parties agreed that 245 of
the 685 pages tendered are included in the administrative record filed by the
government. 21 See ECF 159–60. Mr. Buholtz now seeks to withdraw his
concurrence due to defendant’s opposition to adding the remaining 440 pages to
the administrative record. See ECF 167 at 5–6.
In support of his change in position, Mr. Buholtz does not assert that the
245 pages are not substantively identical to documents already in the
administrative record; instead, he proffers that the tendered 685-page supplement
“will yield a more cohesive and easier to read final [b]rief.” See ECF 167 at 5–6.
The administrative record filed in this case already consist of multiple copies of the
same documents largely due to the inclusion of Mr. Buholtz’s ABCMR application
packets (and attachments) and requests for action and reconsideration. There is
no basis in law or need in fact for additional copies of the same documents already
included in the administrative record.
Nevertheless, in evaluating the pending motion, the Court reviewed the
entire 5,064-page administrative record filed by the government, performed a
side-by-side comparison with the tendered 685-page supplement, and examined
whether the non-duplicate pages are probative of the remaining claims properly
before the Court. The Court concludes that Mr. Buholtz’s motion must be denied.
The chart below identifies the documents and pages that will not be added to the
administrative record since they are already included substantively if not
identically:
21To be fair, Mr. Buholtz’s original motion to supplement the administrative record was filed
on November 10, 2021. See ECF 132. Thereafter, on July 25, 2022, the government filed a
second supplemental administrative record following additional proceedings before the ABCMR.
See ECF 149. Although certain documents include FOIA notations, Mr. Buholtz acknowledged
they “[are] not believed to be of probative value.” See ECF 160 at 1.
13
Document Description Plaintiff’s Bates No. (Administrative Record)
ARBA letter re ABCMR Docket No. 2019-0010257 B4476 (AR 2202)
(CRDP) (Sept. 12, 2019)
Supplemental submission re ABCMR Docket No. 2014- B4477–4502 (AR 3579–3604)
0015567 (retirement) (Oct. 26, 2015) (with enclosures)
ABCMR Application (Dec. 9, 2012) (OER) B4503–07 (AR 182–84)
(with enclosure)
Request for Action re ABCMR Docket No. 2016-0007218 B4509–18 (AR 2647, AR 2649–53, AR 2655–57)
(retirement) (Mar. 26, 2016)
Request for Action re ABCMR Docket No. 2021-0005848 B4520, B4522, B4524–29 (AR 3383–84, AR 3470–72,
(TEB) (Feb. 19, 2021) AR 3503–05)
ARBA letter re ABCMR Docket No. 2010-0014215 B4531 (AR 1540)
(housing security upgrades) (July 27, 2010)
Plaintiff’s Memorandum to State Department re Request B4533–35 (AR B3753–55)
for Reimbursement of Residential Security Updates
(Apr. 30, 2004)
Request for Reconsideration re ABCMR Docket B4537–39, B4543–54 (AR 3405–16)
No. 2011-0013213 (retirement) (Dec. 16, 2020)
Petition for Expunction of Criminal Records filed in B4564–87 (AR 3473–96)
Collin County (Texas) state court (Aug. 11, 2020)
(with enclosures)
ARBA letter re ABCMR Docket No. 2014-0018954 (TIS) B4592 (AR 80)
(Nov. 17, 2014)
ARBA letter re ABCMR Docket No. 2014-0021088 (TIS) B4593 (AR 78)
(Jan. 15, 2015)
ABCMR Memorandum re ABCMR Docket No. 2012- B4604–05 (AR 309, AR 315–16)
0022969 (retirement) (Aug. 28, 2013) (missing pages)
Army Human Resources Command Memorandum B4606 (AR 710)
(June 16, 2011) (without enclosures)
Army Headquarters, 1st Cavalry Division Memorandum B4607 (AR 711)
(May 22, 2011) (without enclosures)
Army Headquarters, 1st Cavalry Division Memorandum B4608 (AR 713–14)
(Oct. 4, 2010) (authored by plaintiff; missing past page)
Miscellaneous records re Texas v. Buholtz, Crim. B4613–15 (AR 550–51); B4777–80 (AR 1125–28);
No. 199-01224-2010 (Collin County, Texas) B4782–94 (AR 350–59); B4797 (AR 547); B4805–10
(AR 765–67); B4855–58 (AR 335–53); B4864–69
(AR 530–32, AR 1125–27)
Miscellaneous Military Personnel Disciplinary Tables B4616–18 (AR 790–92)
Miscellaneous FOIA Correspondence B4623–25 (AR 305–07)
Miscellaneous ABCMR Correspondence B4627–29 (AR 371–73)
Miscellaneous Military Personnel Records (Buholtz) B4630–31 (AR 1689–90); B4635 (AR 1303); B4637–44
(AR 48, AR 104, AR 702–03, AR 269, AR 706, AR 1041);
B4651–57 (AR 378–79, AR 686, AR 710–11, AR 272);
B4697 (AR 1698); B4706–08 (AR 487–89); B4714–18
(AR 1695–97, AR 902); B4725–26 (AR 498–99); B4728–
41 (AR 712–15, AR 740–42, AR736, AR 1072–77);
B4746–66 (AR 722–28, AR 1101–02, AR 1113–15,
AR 519–22, AR 737–39); B4770–75 (AR 743–48);
B4811–13 (AR 770–72); B4816–23 (AR 775–78, AR 720,
AR 2123, AR 783, AR 2446); B4829–30 (AR 556);
B4843–44 (AR 1160–61); B4848–49 (AR 1702–03)
14
Plaintiff’s Memorandum re Request for Voluntary B4859–61 (AR 2895–97)
Retirement as an Exception to Policy (Mar. 31, 2010)
Department of Veterans Affairs Memoranda (May 2011) B4662–67 (AR 1298–1300); B4678–96 (AR 380–94)
& Miscellaneous Records
Miscellaneous PEB & MEB Records B4671–76 (AR 1691–92, AR 273–76); B4701–04
(AR 398, AR 1693–94); B4709 & B4711 (AR 1201);
B4719–24 (AR 1251, 463–67); B4743 (AR 495–97)
Miscellaneous Buholtz’s Civilian Attorney B4698–99 (AR 793–94); B4727 (AR 560)
Correspondence
Defense Finance and Accounting Service (DFAS) letter B4881 & B4892 (AR 2192)
re ABCMR Docket No. 2021-0007961 (final Leave and
Earning Statement) (June 8, 2015)
2. Cumulative and Not Probative
The remaining tendered documents are either cumulative of evidence
already included in the administrative record and/or lack probative value: relate
to claims outside the Court’s jurisdiction (now dismissed); involve issues not before
the Court (e.g., relief granted by the ABCMR, congressional correspondence); and
non-substantive correspondence and documents (e.g., letters confirming receipt,
mail tracking information, blank forms, general information). Accordingly, as
specified in the chart below, they do not satisfy the requisite standard whereby
their omission precludes effective judicial review or otherwise warrant remand
to the ABCMR or other government agency or entity for further consideration.
Plaintiff’s Description Plaintiff’s Court’s Finding
Bates No.
Army Review Boards Agency (ARBA) letter re B4216 Not probative (non-substantive, relating
change of address (Jan. 24, 2018) to issue not before the Court)
ARBA Congressional Liaison letter (Sept. 14, 2021) B4217 Not probative (non-substantive)
Plaintiff’s letters to the Department of Defense B4218–24 Cumulative (ABCMR Docket No. 2018-
(DoD) re: VSI waiver and mail tracking receipts 0003559 documentation included in the
(Dec. 2020 to July 2021) administrative record) & not probative
(non-substantive)
Army Criminal Investigation Command (CID) FOIA B4225–30, Not probative (relate to FOIA and
releases (Sept. 26 & Dec. 8, 2014) (with enclosures) B4231–72 whistleblower claims outside Court’s
jurisdiction) & cumulative (ABCMR
Docket Nos. 2007-0013560, 2008-
0011488 & 2010-0014215 documentation
included in the administrative record)
U.S. Secret Service FOIA releases (June 26, 2005 & B4273–76 (same as above)
Sept. 18, 2015) (with enclosures)
Army OIG FOIA release (Oct. 18, 2006 & May 1, B4277–4347, (same as above)
2017) (with enclosures) B4398–4469
DoD IG FOIA releases (Sept. 8, 2016 & Aug. 20, B4348–73, (same as above)
2015) (with enclosures) B4374–97
15
Congressional Correspondence re: VSI B4470–74 Not probative (non-substantive) &
(Aug. 22, 2021 to Sept. 17, 2021) cumulative (ABCMR Docket No. 2018-
0003559 documentation included in the
administrative record)
ARBA letter re retirement (Nov. 30, 2012) B4475 Not probative (non-substantive) &
cumulative (ABCMR Docket Nos. 2012-
0022969 & 2014-0015567 documentation
included in the administrative record)
Request for Action re ABCMR Docket No. 2016- B4508 Not probative (non-substantive) &
0007218 (Feb. 5, 2017) cumulative (ABCMR Docket No. 2016-
0007218 documentation included in the
administrative record)
Army letter re ABCMR Docket No. 2016-0007218 B4519 (same as above)
(Apr. 14, 2016)
USPS tracking receipts B4521 & B4523 (same as above)
List of military websites re educational scholarships B4530 Not probative (non-substantive)
and grants
Army FOIA and Privacy Division release re ABCMR B4532 Not probative (non-substantive) &
Docket No. 2010-0014215 (Mar. 16, 2016) cumulative (ABCMR Docket No. 2010-
0014215 documentation included in the
administrative record)
ARBA letter re ABCMR Docket No. 2021-0008655 B4536 Not probative (non-substantive) &
(May 7, 2021) cumulative (ABCMR Docket No. 2021-
0008655 documentation included in the
administrative record)
USPS tracking information and blank “Attachment” B4540–42 (same as above)
page re1 ABCMR Docket No. 2021-0008655
Miscellaneous records re Texas v. Buholtz, B4555–63, Cumulative (court records, including
Crim. Nos. 199-01224-2010; 004-82435-10 B4742, B4781, dismissal of state charges following
(Collin County, Texas); Cause No. 219-51173-2010 B4795–96, Mr. Buholtz’s guilty plea and sentencing
(Collin County, Texas) B4798–4804, on related federal charge, already in the
B4827–28, administrative record) 22
B4833–34,
B4841, B4850–
54, B4862–63,
B4870–75
Partial ABCMR Application (Apr. 30, 2009) B4591 Not probative (relates to ABCMR
timeliness outside Court’s jurisdiction)
Army FOIA and Privacy Division release (Jan. 21, B4588–90, Not probative (relate to FOIA claim
2015) (and enclosures) B4594–4603 outside Court’s jurisdiction) &
cumulative (ABCMR Docket Nos. 2012-
0022969 & 2014-0015567 documentation
included in the administrative record)
Plaintiff’s timeline of events/document index B4609–12 Not probative; Cumulative (summary of
documents included in administrative
record)
22 To the extent necessary, rather than supplement the administrative record, the Court may take
judicial notice of matters of public record such as the tendered additional records from Mr. Buholtz’s
state court criminal proceedings. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006),
cited in Diversified Group, Inc. v. United States, 123 Fed. Cl. 442, 452 n.7 (2015), aff’d, 841 F.3d 975(Fed. Cir. 2016).
16
Miscellaneous FOIA correspondence between B4619–22, Not probative (relate to FOIA claim
Plaintiff (himself and through counsel) and the B4626, B4632– outside Court’s jurisdiction) &
Army (with enclosures) 34, B4636, cumulative (ABCMR Docket No. 2014-
B4767–69 0015567 documentation included in the
administrative record)
Miscellaneous Military Personnel Records re medical B4645–50, Cumulative (ABCMR Docket Nos. 2012-
retirement B4658–61, 0022969 & 2014-0015567 documentation
B4677, B4700, included in the administrative record)
B4705, B4710,
B4712–13
Department of Veterans Affairs general information B4668–70 Not probative (general non-substantive
re benefits (pages 4–6 only) and incomplete information) &
cumulative (ABCMR Docket Nos. 2012-
0022969 & 2014-0015567 documentation
included in the administrative record)
Unexecuted “Acknowledgement” B4776 Not probative & cumulative (submission
of Request for Voluntary Retirement
in Lieu of Elimination documentation
included in the administrative record).
Army Memoranda re Civilian Criminal Investigation B4814–15, Cumulative (contemporaneously-issued
(Apr. to May 2010) B4831–32, substantively similar memoranda
B4835–38 included in the administrative record)
Military Training Schedule (general information B4824–26 Not probative (general information)
(Aug. 2-5, 2010)
Memorandum re Justification for Request for B4839–40 Cumulative (similar memorandum
Voluntary Retirement as an Exception to Policy submitted on March 31, 2010 included in
(May 5, 2010) the administrative record)
Transition Center Worksheet (Oct. 31, 2011) & B4842, Cumulative (military record of service
Preseparation Counseling Checklist for Active B4845–47 and retirement documentation included
Component Service Members (Apr. 13, 2010) in the administrative record)
Miscellaneous correspondence re Request for Action B4876–80, Cumulative (ABCMR Docket No. 2015-
re Final Payment of Accrued Leave (ABCMR Docket B4885–91, 0006188 and previous reconsideration
No. 2021-0007961) B4893-900 requests, ABCMR Nos. 2017-0019246,
2014-0018954 & 2014-0021088,
documentation included in the
administrative record); Not probative
(issue resolved in plaintiff’s favor and
no longer pending in this case)
Blank ABCMR Application B4882–84 Not probative (blank application)
Accordingly, Mr. Buholtz’s motion to supplement the administrative is denied.
III. Continued Proceedings
With the composition of the administrative record resolved, we must at last
turn to the merits of the remaining claims pending before the Court. In accordance
with the schedule below, the parties are directed to file cross-motions for judgment
on the administrative record on Counts Three and Five through Eleven under
RCFC 52.1(c).
17
CONCLUSION
For the foregoing reasons,
(1) Counts One, Two, and Four of the Fifth Amended Complaint (ECF 75)
are DISMISSED for lack of subject matter jurisdiction;
(2) Plaintiff’s Motion to Supplement the Administrative Record (ECF 132)
is DENIED;
(3) The Clerk of Court is directed to LIFT the STAY entered in this case on
November 22, 2022 (ECF 166);
(4) Defendant shall FILE a Motion for Judgment on the Administrative Record
on or before March 17, 2023;
(5) Plaintiff shall FILE a Consolidated Response to Defendant’s Motion for
Judgment on the Administrative Record and Cross-Motion for Judgment
on the Administrative Record within 30 days of the filing of defendant’s
dispositive motion;
(6) Defendant shall FILE a Consolidated Response to Plaintiff’s Cross-Motion
for Judgment on the Administrative Record and Reply in Further Support
of Defendant’s Motion for Judgment on the Administrative Record
within 30 days of the filing of plaintiff’s dispositive cross-motion; and
(7) Plaintiff shall FILE a Reply in Further Support of Plaintiff’s Cross-Motion
for Judgment on the Administrative Record within 14 days of the filing of
defendant’s response to plaintiff’s dispositive cross-motion.
It is so ORDERED.
___________________
Armando O. Bonilla
Judge
18