                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

_____________________________________
                                    )
JASON ELLIOTT,                      )
                                    )
            Plaintiff,              )
                                    )
      v.                            )                  Civil Action No. 16-2336 (ESH)
                                    )
UNITED STATES OF AMERICA,           )
                                    )
            Defendant.              )
____________________________________)


                                            ORDER

       Plaintiff Jason Elliott brings this action against the United States seeking judicial

review of a denial of disability benefits by the United States Navy under the Servicemembers

Group Life Insurance Traumatic Injury Protection Program. See 38 U.S.C. § 1980A

(TSGLI). Before the Coiurt is the United States’ motion for voluntary remand and stay (Mot.

for Remand, ECF No. 5), which plaintiff has opposed (Opp’n, ECF No. 8.). Upon

consideration of the motion, plaintiff’s opposition, defendant’s reply, Judge Collyer’s recent

decision granting a motion to remand in a very similar case, see White v. United States, No.

17-cv-0193, slip op. (D.D.C. May 10, 2017) (see Def.’s Notice of Supplemental Authority,

ECF No. 10), and the equities of the matter, the Court concludes that the motion should be

granted.

       The standard for ruling on a motion for voluntary remand was set forth in Judge

Collyer’s recent decision:

       When a plaintiff challenges an administrative agency action, the agency has the
       inherent power to reconsider its own decision and may move for a voluntary
       remand. Federal courts have the discretion to grant the agency’s motion for
       remand before considering the merits of the plaintiff’s claims. . . . Generally,
        courts have found a voluntary remand appropriate when new evidence becomes
        available or where intervening events outside the agency’s control may affect the
        agency’s decision.

        However, a voluntary remand may be appropriate “[e]ven in the absence of new
        evidence or intervening events . . . where an agency requests a remand (without
        confessing error) in order to reconsider its previous position, or where the agency
        believes that its original decision is incorrect on the merits and wishes to change
        the result.

        In such cases, judges in this district have developed a three-pronged approach to
        determine the suitability of a voluntary remand. Courts consider whether: (1)
        defendants have identified substantial and legitimate concerns in support of a
        voluntary remand; (2) voluntary remand would conserve the Court’s and the
        parties’ time and resources; and (3) voluntary remand would unduly prejudice
        the plaintiff. Applying these factors, it is entirely appropriate for courts to grant
        an agency’s voluntary remand even when an agency refuses to admit fault. This
        is because what really matters when an agency requests a voluntary remand . . .
        is whether the agency is genuinely willing to revisit the challenged
        determination. Thus, courts should deny a request that is frivolous or in bad
        faith.

White, slip op. at 3-4 (internal citations and quotation omitted).

        Here, plaintiff alleges that the denial of his TSGLI claim was arbitrary and capricious

because:

        Defendant did not provide justification as to why the greater weight of the
        evidence did not support Plaintiffs eligibility for TSGLI benefits; give any
        reasons why the certifying medical professional's certification was not credible;
        address the caregiver statement of Sgt Walker attesting to his observations and
        provision of assistance to Plaintiff during his recovery; or provide reasonable or
        substantial evidence or medical opinion contradicting Plaintiff's claim for
        TSGLI benefits.

(Compl. ¶ 31). The Court agrees with defendant that “[g]iven these allegations, further

explanation by the Council regarding how it reached its decision and how it applied the

applicable regulations to Plaintiff’s case would assist the Court’s review and may potentially

result in a different final decision and obviate the need for this litigation.” (Mot. at 6.)

Defendant represents that on remand it “will reconsider all case records and regulations, along

with any other documentation Plaintiff provides” (id.) and plaintiff provides no support for the
                                               2
suggestion that defendant is merely seeking a chance to “paper-over” deficiencies in its

decision (see Opp’n at 6). See White, slip op. at 5 (rejecting the same “cursory allegation”

where there was “nothing to suggest that the government’s motion to remand is frivolous or in

bad faith”). Plaintiff’s concern that the remand will simply result in delayed judicial review, if

the decision remains the same, is understandable. Accordingly, while the Court concludes that

a remand is appropriate, it will grant plaintiff’s request that it be completed in fewer than 180

days.

        Accordingly, it is hereby

        ORDERED that defendant’s motion is GRANTED; it is further

        ORDERED that the above-captioned case be REMANDED to the Department of the

Navy for further proceedings. Upon remand, the agency will consider the complete records

from the Navy TSGLI office pertaining to plaintiff’s TSGLI claim and request for relief, along

with any other documentation plaintiff may wish to submit in the next 30 days; it is further

        ORDERED that a final determination shall be made no later than November 6, 2017;

it is further

        ORDERED that the proceedings in this case shall remain STAYED and the case shall

be ADMINISTRATIVELY CLOSED until such a time as ordered otherwise; and it is further

        ORDERED that within 14 days after final action by the agency upon remand, the

parties will file with this Court a copy of the agency’s decision, along with a joint status report

setting forth their respective positions as to whether and how this case should proceed.



                                                       /s/ Ellen Segal Huvelle
                                                       ELLEN SEGAL HUVELLE
                                                       United States District Judge

Date: July 7, 2017
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