                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA




NEIL C. WILHELMUS,

       Plaintiff,


               v.                                          Civil Action No. 09-662 (JEB)


PETE GEREN,

       Defendant.




                                  MEMORANDUM OPINION

       Plaintiff Neil Wilhelmus was a cadet at the United States Military Academy. He

struggled throughout his time there with the mandatory Cadet Physical Fitness Test and was

eventually disenrolled because of his repeated failures on this test. After being separated from

the Academy, the Army determined that he owed the government $137,630 for failing to fulfill

his contractual obligations. He appealed to the Army Board for the Correction of Military

Records (ABCMR), which upheld the Army’s decision. He now turns to this Court. Because

the ABCMR did not adequately consider its precedents, the Court will remand the matter.

I.     Background

       On June 30, 1997, Plaintiff entered the Academy and signed an oath of allegiance and a

cadet contract. Mot. at 2; Compl., ¶ 12. This contract read, in relevant part: “[I]f I voluntarily

fail . . . to complete the period of active duty specified [above], I will reimburse the United States

in an amount that bears the same ratio to the total cost of advanced education provided me as the

unserved portion of active duty bears to the total period of active duty I have agreed to serve.”
Agreement to Serve, ¶ IIf, quoted in ABCMR Record at 9. Not a natural athlete, Plaintiff

struggled with the mandatory Cadet Physical Fitness Test (CPFT) while at the Academy and was

placed on the list of cadets who had repeatedly failed the CPFT by the fall of his sophomore

year. Compl., ¶ 15. He failed the running portion of the CPFT on three occasions between

December 1998 and May 1999, as well as the sit-up portion of the last test. ABCMR Record at

10-11. In April 1999, his scheduled attendance at the Airborne School was canceled because of

his inability to pass the CPFT, and he was advised that he would be recommended for separation

if he did not pass the next test. Compl., ¶¶ 16-17. In response, Plaintiff wrote to his superiors to

explain the reasons for his failures, citing several injuries, and to request additional time to pass

the CPFT. ABCMR Record at 11-12. He was given a physical examination at the Academy on

June 22, 1999, and found to be in “excellent health/condition and fit for duty.” Id. at 12. The

Army then initiated separation paperwork on June 24, 1999, to disenroll Plaintiff from the

Academy. Compl., ¶ 19

       This separation was halted when Plaintiff passed the CPFT in August 1999. Id., ¶ 22.

On February 22, 2000, Plaintiff received a limited-duty medical excusal for a week due to an

ingrown toenail. ABCMR Record at 12-13. On April 3, Plaintiff once again was placed on a no-

running profile with a knee injury. Id. at 13. Although he was found fit for duty two weeks

later, he subsequently failed the May 5 CPFT, this time falling short in both the push-ups and

running portions of the test. Id. Because of an ingrown toenail, he could not take the retests

scheduled between late May and mid-September 2000. Compl., ¶ 25. On October 13, 2000,

Plaintiff met with a counselor regarding his physical fitness performance. ABCMR Record at

14. He was informed that he would be recommended for separation once again should he fail the

retests. Id. He took the CPFT in October 27, 2000, and did not pass either the push-ups or
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running portion. Id. In response, the Army initiated disenrollment proceedings. Compl., ¶ 27.

In January 2001, Plaintiff was examined for lower back pain and once again given a limited

medical excusal. ABCMR Record at 15.

        In April 2001, Plaintiff was disenrolled from the Academy. Compl., ¶ 31. His separation

from the Army was finalized two years later, on April 28, 2003, when he was honorably

discharged. Id., ¶6; ABCMR Record at 16. After Plaintiff left the Academy, the Army

determined that he owed the government $137,630 for his failure to fulfill his contractual

obligations. Compl., ¶ 37. Plaintiff has thus far repaid $6,000 through wage and federal income

tax garnishment. Id., ¶ 39. Plaintiff subsequently requested that the ABCMR correct his records

to show that he did not owe this debt to the government. Id., ¶ 40. On July 26, 2007, the

ABCMR denied his petition. See ABCMR Record. This decision is what the present suit asks

the Court to overturn.1

II.     Legal Standard

        Summary judgment may be granted if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV.

P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). The mere existence of a factual dispute, by itself, is

insufficient to bar summary judgment. Liberty Lobby, 477 U.S. at 248. To be material, the

factual assertion must be capable of affecting the substantive outcome of the litigation; to be

genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier of

fact could find for the non-moving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C.

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         In considering the parties’ competing Motions, the Court has reviewed the Administrative Record,
Defendant’s Motion for Summary Judgment, Plaintiff’s Cross-Motion and Opposition to Defendant’s Summary
Judgment, Defendant’s Reply and Opposition to Plaintiff’s Cross-Motion, and Plaintiff’s Reply. As the Court does
not reach the issue of voluntariness, it has not considered the supplemental briefing on this issue.
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Cir. 1987); Liberty Lobby, 477 U.S. at 251-52 (holding that the court must determine “whether

the evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law”).

       Although styled Motions for Summary Judgment, the pleadings in this case more

accurately seek the Court’s review of an administrative decision. The standard set forth in Rule

56(c), therefore, does not apply because of the limited role of a court in reviewing the

administrative record. See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89-90 (D.D.C. 2006)

(citing National Wilderness Inst. v. United States Army Corps of Eng'rs, 2005 WL 691775, at *7

(D.D.C. 2005); Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995), amended on

other grounds, 967 F. Supp. 6 (D.D.C. 1997)). “[T]he function of the district court is to

determine whether or not as a matter of law the evidence in the administrative record permitted

the agency to make the decision it did.” Id. (internal citations omitted). Summary judgment thus

serves as the mechanism for deciding, as a matter of law, whether the agency action is supported

by the administrative record and otherwise consistent with the APA standard of review. See

Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977), cited in Bloch v. Powell, 227 F.

Supp. 2d 25, 31 (D.D.C. 2002), aff’d, 348 F.3d 1060 (D.C. Cir. 2003).

       The Administrative Procedure Act “sets forth the full extent of judicial authority to

review executive agency action for procedural correctness.” F.C.C. v. Fox Television Stations,

Inc., 129 S.Ct. 1800, 1810 (2009). It requires courts to “hold unlawful and set aside agency

action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This is a “narrow” standard of

review as courts defer to the agency’s expertise. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). An agency is required to “examine the
                                                  4
relevant data and articulate a satisfactory explanation for its action including a rational

connection between the facts found and the choice made.” Id. (internal quotation omitted). The

reviewing court “is not to substitute its judgment for that of the agency,” id., and thus “may not

supply a reasoned basis for the agency's action that the agency itself has not given.” Bowman

Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-86 (1974) (internal

quotation omitted). Nevertheless, a decision that is not fully explained may be upheld “if the

agency's path may reasonably be discerned.” Id. at 286. The court should focus its review on

the “administrative record already in existence, not some new record made initially in the

reviewing court.” See Camp v. Pitts, 411 U.S. 138, 142 (1973).

III.      Analysis

          Plaintiff maintains that the ABCMR acted arbitrarily and capriciously when it affirmed

the Army’s decision to seek recoupment of more than $130,000 from him for failing to complete

his obligations to the Army. He argues principally that the Board unlawfully ignored precedent,

that it mistakenly concluded that his CPFT failures were voluntary, and that justice requires

reversal of its decision. Because the Court agrees that the Board did not sufficiently distinguish

its precedent, it need not at this time address the other issues.

       A. Standard of Review

          Before turning to a discussion of precedent, it is necessary to resolve the parties’ dispute

over the applicable standard of review. By statute, the Secretary of the Army “may correct any

military record of [his] department when [he] considers it necessary to correct an error or remove

an injustice.” 10 U.S.C. § 1552(a)(1). This review is done through the ABCMR. Federal courts

review final decisions made by the ABCMR under the APA. Baker v. Dep’t of Army, 1998 WL

389097, at *1 (D.C. Cir. 1998) (“The district court has jurisdiction to review the ABCMR's
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refusal to correct military records, unless the claim is in essence one for monetary relief, which it

was not in this instance.”); see also Kidwell v. Dep’t of the Army, Bd. for Correction of Military

Records, 56 F.3d 279, 283-84 (D.C. Cir. 1995).

       Considering the wide latitude granted to the Secretary by Congress, this Circuit has found

that decisions by the ABCMR receive the benefit of an “unusually deferential application of the

‘arbitrary or capricious’ standard”:

               [T]he question whether a particular action is arbitrary or capricious
               must turn on the extent to which the relevant statute . . . constrains
               agency action. While the broad grant of discretion implicated here
               does not entirely foreclose review of the Secretary's action, the
               way in which the statute frames the issue for review does
               substantially restrict the authority of the reviewing court to upset
               the Secretary's determination. It is simply more difficult to say
               that the Secretary has acted arbitrarily if he is authorized to act
               “when he considers it necessary to correct an error or remove an
               injustice,” 10 U.S.C. § 1552(a), than it is if he is required to act
               whenever a court determines that certain objective conditions are
               met, i.e., that there has been an error or injustice.

Kreis v. Sec’y of Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989) (emphasis in original) (Kreis

I). This does not mean that the ABCMR’s decision cannot be reviewed by federal courts, but

rather that “only the most egregious decisions may be prevented under such a deferential

standard of review.” Id. at 1515.

       Plaintiff argues that this “unusually deferential” standard of review is inappropriate in

this case because he has raised “non-frivolous claims of plain legal error involving the Army’s

failure to comply with statutes, regulations, and mandatory procedures.” Pl. Cross-Mot. at 12.

Defendant, seemingly misconstruing Plaintiff’s argument, responds that the Court should apply

the arbitrary and capricious standard in this case. Def. Reply at 3-5. This is indeed what

Plaintiff himself has requested – that the traditional APA standard be used instead of the

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“unusually deferential” standard established in Kreis I. Both sides thus agree that the traditional

APA standard should be used.

       This accords with the law in this Circuit, which differentiates between “military judgment

requiring military expertise,” which should be reviewed under the “unusually deferential”

standard, and “review of the Board's application of a procedural regulation governing its case

adjudication process,” which is reviewed under the traditional arbitrary and capricious APA

standard. Kreis v. Sec’y of Air Force, 406 F.3d 684, 686 (D.C. Cir. 2005) (Kreis III). As the

claims here raise issues of procedural fairness, the traditional APA standard applies.

   B. Precedent

       Plaintiff argues that the ABCMR’s decision in his case was arbitrary and capricious

because the Board did not properly distinguish relevant precedent. Compl., ¶¶ 47-62. Defendant

first responds that the ABCMR is not bound by precedent because it is a board of equity. Def.

Mot. at 16-17. Defendant has not cited a single case in support of this novel legal argument. On

the contrary, in this Circuit, “[i]t is axiomatic that ‘[a]n agency must treat similar cases in a

similar manner unless it can provide a legitimate reason for failing to do so.’” Kreiss III, 406

F.3d at 687 (quoting Indep. Petroleum Ass'n of Am. v. Babbitt, 92 F.3d 1248, 1258 (D.C. Cir.

1996)). Indeed, a “fundamental norm of administrative procedure requires an agency to treat like

cases alike,” Westar Energy, Inc. v. Federal Energy Regulatory Com'n, 473 F.3d 1239, 1241

(D.C. Cir. 2007), and an agency “must provide an adequate explanation to justify treating

similarly situated parties differently.” Burlington Northern and Santa Fe Ry. Co. v. Surface

Transp. Bd., 403 F.3d 771, 776 (D.C. Cir. 2005). This is not to say that the broad discretion

afforded to the ABCMR, as discussed above, does not also grant it significant flexibility in

judging the respective merits of each application for review. Nonetheless, “[l]ike a court,
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‘[n]ormally, an agency must adhere to its precedents in adjudicating cases before it.’” Jicarilla

Apache Nation v. U.S. Dept. of Interior, 613 F.3d 1112, 1120 (D.C. Cir. 2010) (quoting Consol.

Edison Co. of N.Y., Inc. v. FERC, 315 F.3d 316, 323 (D.C. Cir. 2003)).

       Even if the ABCMR is not required to distinguish every similar prior decision, the need

to consider relevant precedent becomes especially acute when a plaintiff has pointed to a specific

prior decision as very similar to his own situation. In such cases, the Board may not simply

ignore such precedent for the sake of expediency. To do so would leave open the possibility that

two identical cases would be decided differently. Nothing could be more arbitrary or capricious.

See Etelson v. Office of Personnel Management, 684 F.2d 918, 926 (D.C. Cir. 1982)

(“Government is at its most arbitrary when it treats similarly situated people differently.”); El

Rio Santa Cruz Neighborhood Health Ctr., Inc. v. Dept. of Health and Human Serv., 300 F.

Supp. 2d 32, 42 (D.D.C. 2004) (“[I]f an agency treats similarly situated parties differently, its

action is arbitrary and capricious in violation of the APA.”) (internal citation omitted).

       Here, Plaintiff points to the ABCMR’s 2004 review of case AR200309457. In that case,

the applicant had also struggled with the CPFT throughout his time at the Academy, and though

he narrowly passed a few of the tests with the help of remedial training, he eventually failed

enough of them to face separation. Administrative Record at 232-47 (ABCMR Record Case AR

2003094057). He was ultimately disenrolled a few months before graduation, and the Army

moved to recoup more than $120,000 in tuition fees from him. Id. The Board there

recommended correction of the applicant’s record to disallow recoupment because it found that

his repeated failure of the CPFT was “not due to a volitional act or misconduct.” Id. at 247.

       While acknowledging this prior case’s existence, the Board here entirely failed to

distinguish it or to justify why the outcome in this case was different. Indeed, its only response
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to Plaintiff’s reliance on the previous case was that: 1) “The ABCMR reviews each case

individually and is presented before the Board based on its own merit and evidence,” 2) “There

are no cases that set the standards on how the Board should always vote,” and 3) “The decision

in ABCMR Docket Number AR200309457 . . . was not a unanimous decision to grant relief.”

ABCMR Record at 21-22. None of these bases, singly or in concert, is sufficient.

        The first two grounds are simple conclusory statements and have no particular application

to this case or the earlier one. As for the third, this is no basis to undercut the validity of the

prior decision. A split decision of any appellate court is no less valid than a unanimous one.

See, e.g., Paper Converting Machine Co. v. Magna-Graphics Corp., 745 F.2d 11, 26 (Fed. Cir.

1984) (“Regardless of the reasonableness of the alternative interpretation . . , we are bound by

the Supreme Court's decision. No greater prerogative to modify it accrues to us from a 5-4 vote

than from a unanimous decision.”). In such an instance, the Court cannot uphold the Board’s

determination. See Kreis III 406 F.3d at 686-87 (finding that “the court must uphold the Board's

decision unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law” and that it is was “arbitrary and capricious because it is . . . an unexplained departure

from its precedent”) (internal quotation omitted).

        The Board may find on reconsideration after remand that the decision in AR200309457 is

distinguishable from Plaintiff’s case. Indeed, several of the arguments put forth by Defendant in

his Reply may ultimately prove persuasive. Yet that is not for this Court to decide. As Plaintiff

correctly points out, Defendant cannot retroactively justify the Board’s decision. Pl. Reply at 8-

9. Neither may this Court, even if it were convinced by Defendant’s arguments, “substitute its

judgment for that of the agency,” Motor Vehicles, 463 U.S. at 43.



                                                   9
       Given the Board’s failure to distinguish precedent, the Court must decide whether “the

agency's path may reasonably be discerned,” Bowman, 419 U.S. at 286, based on the

administrative record it created. Camp, 411 U.S. at 142. Though an agency's decision need not

be “a model of analytic precision to survive a challenge,” its “explanation must minimally

contain a rational connection between the facts found and the choice made.” Dickson v.

Secretary of Defense, 68 F.3d 1396, 1404 (D.C. Cir. 1995). This is certainly not a case in which

“an agency merely parrots the language of a statute without providing an account of how it

reached its results.” Id. at 1405. Indeed, the Board’s 23-page decision carefully considers many

of the factual and legal issues at play in this case. Nevertheless, it is “impossible to discern the

Board's ‘path’” on this point, id., where it has not indicated why it chose to deny Plaintiff’s

request, but grant the one in AR200309457. As the Dickson Court so aptly put it, “To conduct

even a limited review, we must be made privy to the Board's reasoning.” Id. at 1406 n 17. This

case is, accordingly, remanded to the Board so that it may consider the applicability of case

AR200309457 in reaching its decision here. See, e.g., Kendall v. Army Bd. for Correction of

Military Records, 996 F.2d 362 (D.C. Cir. 1993) (remanding case to District Court to remand to

ABCMR to reconsider its interest of justice determination).

       A separate Order consistent with this Opinion will be issued on this day.

       SO ORDERED.

                                                       /s/ James E. Boasberg
                                                         JAMES E. BOASBERG
                                                       United States District Judge
Date: July 13, 2011




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