Springs v. Toro

1

KENNETH SPRINGS, et al., Plaintiffs, v. CARLOS DEL TORO, Secretary of the Navy, et al., ^[1] Defendants.

Civil Action No. 20-3244 (RDM)

United States District Court, District of Columbia

November 27, 2023

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS, United States District Judge

This is a class action brought against the Secretary of the Navy challenging the Department of the Navy's policies and practices in calculating disability ratings for veterans of the United States Navy and Marines separated from service between November 10, 2014 and June 27, 2019, after being found unfit for continued military service by the Navy's Physician Evaluation Board (“PEB”), who were found by the PEB to have at least one Category II condition. Category I conditions are those that render a servicemember “unfit” for service, and a Category II condition is one that contributes to the unfitting condition. Category III conditions, in contrast, do not qualify as unfitting or contributing conditions, and Category IV conditions are those that cause no physical disability. Dkt. 40 at 3 (citing AR 3236). Plaintiffs allege that the Department of the Navy (hereinafter the “Navy”) violated a statute, 10 U.S.C. § 1216a(b), and Navy regulations, SECNAVINST 1850.4E & DoDI 1332.18(3)(e), when it assigned disability ratings to their Category I conditions but failed to assign ratings for “their Category II conditions, which may have resulted in [their] receiving a lower combined disability rating and fewer benefits than they were entitled to under the applicable statute and regulations.” Dkt 1 at 4 (Compl. ¶ 8).

Before the parties completed briefing on their cross-motions for summary judgment, Dkt. 43 & 45, they jointly moved to stay the case, Dkt. 47, pending the Court's ruling on Plaintiffs' motion to strike a declaration by the President of PEB, John Reeser, and two documents pertaining to the named plaintiffs' records from the administrative record, Dkt. 48. After hearing from the parties, the Court ordered that the declaration and two documents were not properly included in the administrative record but that they were properly offered as extra-record evidence regarding the relevant factual (but not legal) background. Min. Entry (Mar 15, 2023); Dkt. 56-1 at 41 (Hrg. Tr.). Shortly thereafter, the Navy moved for voluntary remand. Dkt. 56. For the reasons explained below, the Court will DENY the Navy's motion.

Federal courts have considerable discretion to decide whether to grant an agency's motion for voluntary remand. A court will “generally grant an agency's motion to remand so long as ‘the agency intends to take further action with respect to the original agency decision on review.'” Util. Solid Waste Activities Grp. v. EPA, 901 F.3d 414, 436 (D.C. Cir. 2018) (quoting Limnia, Inc. v. Dep't of Energy, 857 F.3d 379, 386 (D.C. Cir. 2017)). “Remand has the benefit of allowing ‘agencies to cure their own mistakes rather than wasting the courts' and the parties' resources reviewing a record that both sides acknowledge to be incorrect or incomplete.'” Id. (quoting Ethyl Corp. v. Browner, 989 F.2d 522, 524 (D.C. Cir. 1993)). Voluntary remand is not warranted, however, when the agency fails to “provide[] a reasoned explanation for a remand, ” Cadillac of Naperville, Inc. v. Nat'l Lab. Rels. Bd., 14 F.4th 703, 719 (D.C. Cir. 2021) (citing Clean Wis. v. EPA, 964 F.3d 1145, 1175-76 (D.C. Cir. 2020)), when the “motion is ‘frivolous or made in bad faith, '” id. (quoting Util. Solid Waste, 901 F.3d at 436), or when “granting the motion would ‘unduly prejudice the non-moving party, '” id. (quoting Util. Solid Waste, 901 F.3d at 436).

Here, the Navy has failed to offer a reasoned explanation justifying a voluntary remand. The Navy asserts that a voluntary remand will clarify the record in two respects: it will provide the Department with the opportunity to provide its “interpretation of the regulation at issue, ” and it will “provide clarity on the [Navy's] position from the [Department's] decision maker.” Dkt. 56 at 8. The Court is unpersuaded for several reasons.

First, the Navy overreads the Court's comment during oral argument that a remand would offer one alternative means of clarifying the Navy's policy. See Dkt. 58 at 2 (citing Dkt. 56-1 at 30-31). At oral argument, Plaintiffs' counsel conceded that the Court could rely on the Reeser Declaration as extra-record evidence of what the PEB, in fact, did in rating Plaintiffs' disabilities, thereby facilitating judicial review of those determinations. See Dkt. 56-1 at 31-32. Accordingly, all now agree that the Court can rely on the declaration to the extent it describes how the PEB rendered its decisions. The only remaining bone of contention is whether the Court should also rely on legal argument contained in the declaration and whether the Court can and should defer to legal interpretations that are not elucidated in the administrative record but that are, instead, merely offered in the declaration. As to that dispute, the Court left it to the parties to argue their respective positions in completing (or renewing) briefing on their cross-motions for summary judgment. Id. at 41. Thus, to the extent the Navy seeks a remand to explain what the PEB in fact did, there is no need. That information is already before the Court, and the Court can discern little benefit in adding the declaration (or a similar account of the relevant events) to the administrative record on remand, at least to the extent the Navy merely seeks to clarify what happened.

The Navy also argues that the Court should remand the dispute because Springs only raised his Category II-rating argument “in a cursory manner” during the administrative process, and Reese did not raise the issue at all. Dkt. 56 at 7. But, as Plaintiffs point out and the Navy does not dispute, the present dispute is not subject to an exhaustion requirement, which would preclude the Court from reaching the merits of Plaintiffs' claims absent a remand. Dkt. 57 at 5 n.1. The Navy's argument might come closer to the mark had Plaintiffs' complaint included an APA challenge to the adequacy of the Navy's reasoning or explanation; if Plaintiffs had done so, the Navy might have then reasonably sought an opportunity to clarify its reasoning or to add detail to its explanation on remand. But that is not this case. Rather, Plaintiffs' premise their challenge on a violation of the plain terms of the governing statute and regulations, and, according to their arguments, no additional reasoning or explanation can avoid that violation of the law. See Dkt. 1 at 27 (Compl. ¶¶ 96-107).

Permitting a voluntary remand to clarify the Navy's reasoning, moreover, is complicated here by the fact that this is a class action and clarifying the Navy's reasoning with respect to the two named plaintiffs will not necessarily clarify the reasoning of the relevant decisionmaker with respect to each of the 13, 000 or so disability ratings at issue. See Dkt. 57 at 5; Dkt. 58 at 3 n.1. To the extent guidance was provided to all decisionmakers about how to rate the disabilities at issue, that information should already be in the administrative record, and attempting to offer that type of across-the-board clarification at this point risks confusing the record with ex post facto explanations for decisions rendered by other decisionmakers, who did not receive the benefit of that late-offered clarification or guidance before rendering the decisions under review. This concern is acute because the Navy has made clear that it “does not intend to individually review the PEB case of every class member” on remand, Dkt. 58 at 3, and thus the Court will not have the benefit of new, better explained decisions to review. Instead, it will have an administrative interpretation of the relevant statute and regulations that is disconnected to the specific cases that are before the Court for review. Litigation counsel is, of course, free to present arguments about the meaning of the statute and regulations. The Court fails to grasp, however, how the resolution of this case would be furthered by presenting those legal arguments in the form of a declaration that is made part of the administrative record on remand, when the Navy will, at most, revisit two of the thousands of administrative determinations at issue, and when there is no reason to believe that the relevant decisionmakers had the benefit of that guidance.

The Navy also argues that it “has not had the opportunity to review Plaintiffs' class claim in the first instance.” Dkt. 56 at 8. The Court is unsure what to make of this argument. To start, the Navy stipulated to the certification of the class and agreed to proceed before this Court by way of a class action-presumably, to alleviate the burden that the Navy would face in litigating thousands of separate cases involving the same, arguably controlling question of law. See Dkt. 35 at 4. But beyond that, the Navy has both failed to identify an administrative mechanism for revisiting the thousands of rating determinations at issue...