                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA


LTC RICHARD A. VARGUS,

              Plaintiff,

       v.                                    Civil Action No. 14-924 (GK)

JOHN M. MCHUGH, SEC'Y
OF THE ARMY,

              Defendant.


                                MEMORANDUM OPINION

       Plaintiff Lieutenant Colonel Richard A. Vargus             ("Plaintiff"

or "LTC Vargus") brings this action against Defendant Secretary of

the Army John M.         McHugh    ("Defendant"   or    "the Government")   to

challenge decisions of the Army Board for Correction of Military

Records     ( "ABCMR"   or "the Army Correction Board")          as arbitrary,

capricious,     unsupported by substantial evidence,            or contrary to

applicable law or regulation under the Administrative Procedure

Act ("APA"), 5     u.s.c.   §   706.

       This matter      is presently before       the   Court   on Plaintiff's

Motion to Compel Production of the Administrative Record [Dkt. No.

10].   Upon    consideration      of   the   Motion,    Opposition   ("Gov't's

Opp'n")     [Dkt. No. 12], and Reply [Dkt. No. 16], the entire record

herein,     and for the reasons stated below,           Plaintiff's Motion to

Compel Production of the Administrative Record is granted.
I .    BACKGROUND

       On May 30, 2014, Plaintiff filed his Complaint seeking review

under the APA, 5 U.S.C.           §    706, of two decisions by the Army Board

for Correction of Military Records. The Army Correction Board first

denied the relief Plaintiff sought on February 24, 2009, and denied

his request for reconsideration on September 24, 2009.

       The precise factual details of Plaintiff's claims before the

Army Correction Board are complex,                   but the essential thrust is

that   the    United     States       Army    failed       to   properly       classify    LTC

Vargus' s     area of    specialization.            That    improper classification,

according      to    LTC Vargus,        deprived him of           the    opportunity for

promotion to the rank of colonel.

       On October 30, 2014, the Government filed a Motion to Dismiss

("Gov' t' s   Mot.     to Dismiss") ,        contending         that    this    Court    lacks

jurisdiction to hear Plaintiff's challenge,                       see Fed. R.       Civ.    P.

12(b) (1), and that Plaintiff has failed to state a claim upon which

relief can be granted, see Fed. R. Civ. P. 12(b) (6). The Government

contends,      among     other        things,      that     Plaintiff's        request     for

reclassification presents a                 non-justiciable political question,

that    Plaintiff       failed         to    exhaust       available       administrative

remedies,     that Plaintiff's claim is moot,                   and that Plaintiff is

not entitled to the particular relief he has requested. In support

of its Motion to Dismiss, the Government attached several exhibits,
                                             -2-
many of which were drawn from or rely on the Administrative Record

underlying the ABCMR's proceedings.

        On November 17, 2014, Plaintiff filed a Consent Motion for an

Extension of Time to File an Opposition to Defendant's Motion to

Dismiss [Dkt. No. 8], which the Court granted the next day.

        On December 12,        2014,     Plaintiff   filed his    Second Consent

Motion to Extend Time to File [Dkt. No. 9]. In this Second Consent

Motion,       Plaintiff stated that        "a dispute ha[d]      arisen over the

time     to     produce     and   file     the   [A]dministrative       [R] ecord. "

Accordingly,        Plaintiff would       "shortly file     a   motion to      compel

production of the           [A] dministrati ve   [R] ecord [,]" which Defendant

would     oppose.     Id.    Plaintiff     suggested     that   "the   Court    hold

[Plaintiff's Opposition]           to    [Defendant's]    Motion to Dismiss in

abeyance until 30 days after the administrative record is filed,

if the Court so rules." Id. A copy of the Second Consent Motion

was served upon counsel for Defendant. Id.

       The Second Consent Motion (as its title suggests) was made

with Defendant's consent, and the Government did not indicate any

objection to Plaintiff's proposal. Accordingly, the Court granted

the Motion by Minute Order on December 15,                 2015. By that Order,

the Court       held in abeyance         Plaintiff's obligation to file his

Opposition to Defendant's Motion to Dismiss "until 30 days after

the Administrative Record is filed," in the event the Court orders
                                          -3-
its production. Defendant has never asked this Court to reconsider

its   Order   regarding   the     briefing    schedule    for     the   Motion   to

Dismiss.

      On December 31,     2014,    Plaintiff filed his Motion to Compel

Production of the Administrative Record which is presently before

the Court. Following requests for extensions of time to file from

both Parties, the Government filed its Opposition on February 3,

2015, and Plaintiff filed his Reply on March 12, 2015.

II.   STANDARD OF REVIEW

      The Administrative Procedure Act requires reviewing courts to

"set aside agency action,         findings,    and conclusions found to be

      arbitrary, capricious, abuse of discretion, or otherwise not

in accordance with law [.]" 5 U.S. C.          §   706. In doing so,      the APA

requires courts to "review the whole record or those parts of it

cited by a party [.]" Id.

      Some matters,   like      "interpreting the        extent    to which      [a]

regulation is consistent with          [a]    statute [,]"   may be     "resolved

with nothing more than the statute and its legislative history."

Am. Bankers Ass'n v. Nat'l Credit Union Admin., 271 F.3d 262, 266

(D.C. Cir. 2001). Often,        jurisdictional questions may be decided




                                      -4-
without   recourse to the   record.    See Swedish American Hosp.   v.

Sebelius, 691 F. Supp. 2d 80, 85 (D.C.C. 2010) . 1

     However, when courts must determine whether the "adjudicatory

process was reasonable and whether the decision was consistent

with Congressional intent[,]" they must look to the administrative

record. Swedish American, 691 F. Supp. 2d at 89. When recourse to

the record is necessary,    a court "should have before it neither

more nor less information than did the agency when it made its

decision." See Boswell Memorial Hosp. v. Heckler,      749 F.2d 788,

792 (D.C. Cir. 1984). "To review less than the full administrative

record might allow a party to withhold evidence unfavorable to its

case and so the APA requires review of 'the whole record.'" Id.

III. ANALYSIS

     The Government argues that the Court should deny Plaintiff's

Motion to Compel Production of the Administrative Record because

resolution of its Motion to Dismiss does not require inquiry into

the full Record. In the Government's words,

     the administrative record is not needed to decide whether the
     Court may direct an officer's assignment to a particular
     position in the Army; whether Plaintiff has exhausted his
     administrative remedies; whether Plaintiff's claims are moot
     because the requested amendments to his Official Military
     Personnel Record    ("OMPF")  have been made;     or whether

1 Of course, the Court may always look beyond the pleadings to
determine whether it has subject matter jurisdiction. Jerome
Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-
54 (D.C. Cir. 2005).
                                 -5-
     Plaintiff states a claim for inclusion of civilian records in
     his OMPF.

Gov't's Opp'n at 2 (internal citations omitted).

      In order to advance these particular arguments in its Motion

to Dismiss, however, the Government itself relies on "a miscellany

of   documents,   many   of   which    might   properly   appear   in    an

administrative record." Boswell Mem'l Hosp., 749 F.2d at 792. For

instance, the Government relies on two affidavits to support its

argument that Plaintiff's claim is moot because all ABCMR-ordered

changes to LTC Vargus's record have been implemented. See Gov't's

Mot. to Dismiss at 15 (citing [Dkt. Nos. 7-5, 7-6]). Whether such

changes have occurred can only be assessed with reference to the

Record itself.

     The Government goes on to cite affidavits for the proposition

that it does not possess and cannot alter LTC Vargus's National

Guard records and that an explanation for the absence of various

documents has been placed into Plaintiff's personnel          file.     See

Gov't's Mot.   to Dismiss at 16,      18. The Government contends that

these facts demonstrate that Plaintiff has failed to state a claim

upon which relief can be granted. Whether or not these points are

dispositive of Plaintiff's claims, the Court cannot fully evaluate

them without the Administrative Record.




                                   -6-
      Finally,       the    Government   argues    that    Plaintiff   failed    to

request particular relief from the ABCMR and has therefore failed

to exhaust his administrative remedies. Gov't's Mot. to Dismiss at

7. Again, the whether the Government is correct is a question best

answered by the Administrative Record.

      Our Court of Appeals has made clear that "[f]or review to go

forward on a partial record,         [the Court] would have to be convinced

that the selection of particular portions of the record was the

result of mutual agreement between the parties after both sides

had fully reviewed the complete record.                 In that situation,      [the

Court]     might naturally assume that the omitted portions did not

materially affect either party's case and,                for   [the Court's] own

convenience, review the case on that portion of the record cited

by the parties." Boswell Mem'l Hosp.,               749 F.2d at 793. However,

where one party might be unaware of some parts of the record,

failure     to   produce     the   Record   in    its   entirety   would   produce

"asymmetry in information [that] undermines the reliability of a

court's review upon those portions of the record cited by one party

or   the   other."    Id.    (remanding case       to   the District   Court    for

reconsideration with the benefit of the entire record) .

      The arguments Defendant raises in its Motion to Dismiss rely,

at least in part, upon the Administrative Record. Accordingly, the

Government must produce the Record in order to allow Plaintiff to
                                         -7-
rely upon it as well as to enable the Court to evaluate the strength

of both Parties' arguments.

     The Government responds that because a court "may consider

documents     outside       the pleadings        to   assure      itself    that   it   has

jurisdiction[,]" Al-Owahali v. Ashcroft,                    279 F.     Supp.   2d 13, 21

(D.D.C.     2003),    the     documents    it     cites    are     attached merely to

demonstrate that this Court lacks jurisdiction to hear Plaintiff's

claims. Moreover, as the Government notes, "Courts are not required

to consider the administrative record pertaining to a challenged

action     when      deciding    whether         [they]    ha [ve]      subject     matter

jurisdiction." Fund for Animals v. Williams, 391 F. Supp. 2d 132,

135 n.3     (D.D.C.    2005)    (emphasis added)          (noting also that courts

may consider materials outside the pleadings) .

     The    Government's        Motion     to    Dismiss,        however,   raises      both

jurisdictional questions under Fed. R.                    Civ.    P.   12(b) (1)   and the

merits under Fed.        R.    Civ.   P.   12 (b) (6).     Defendant may very well

prevail on one of the jurisdictional arguments in its Motion, which

this Court must resolve before considering the merits.                             Swedish

American,    691 F.     Supp.    2d at 85         (citing United States ex rel.

Settlemire v. District of Columbia, 198 F.3d 913,                        920   (D.C. Cir.

1999)). However, this Court cannot, at this stage, determine the

Government's likelihood of success.



                                           -8-
      The Government consented         (or at    the very least     failed to

object) to a briefing schedule that postponed filing of Plaintiff's

Opposition until after resolution of Plaintiff's Motion to Compel.

Without     full   briefing,   the   Court   lacks   sufficient   evidence   to

assess the strength of the Government's arguments that do not rely

on the Administrative Record. 2

IV.   CONCLUSION

      For    the   foregoing   reasons,      Plaintiff's   Motion   to   Compel

Production of the Administrative Record is granted. An Order shall

accompany this Memorandum Opinion.



April 9, 2015                                Glfi/trd:er' /~
                                             United States District Judge

Copies to: attorneys on record via ECF

2
 In Swedish American, 691 F. Supp. 2d 80, the Court confronted a
situation similar to the case at hand, and now each party claims
that the case supports its position. In Swedish American, the Court
simultaneously granted a motion to compel production of the
administrative record and dismissed several claims for lack of
jurisdiction. Id. at 85, 87. Despite the Government's objections,
the Court held that the record was necessary to decide whether
claims brought under the APA should be dismissed. Id. at 87. The
Court was able to dismiss some claims on jurisdictional grounds
because it had the benefit of full briefing on the motion to
dismiss. Id. Rather than requesting a stay of briefing, the Swedish
American plaintiff had gone ahead and filed an opposition to the
defendant's 12(b) motion without waiting for the Court to rule on
the motion to compel production. Id. at 88 n.6. Like the Swedish
American Court, this Court cannot reach the merits of Defendant's
Motion to Dismiss without the Administrative Record, but unlike
Swedish American,    this Court cannot even reach Defendant's
jurisdictional arguments because it lacks full briefing.
                                      -9-
