UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

LTC RICHARD A. VARGUS, 

Plaintiff, 

v. 

JOHN M. MCHUGH, SEC'Y 

OF THE ARMY, 

Defendant. 

Civil Action No. 14-924 (GK) 

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, 

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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 

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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 

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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). 

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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. 

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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 

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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. 

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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. 

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