United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
COLIN H. LINDSAY, Magistrate Judge.
This matter is before the Court on the motion of Plaintiff Mark Koroluk ("Plaintiff") for leave to take additional discovery ("Motion"). (DN 44.) Plaintiff requests that the Court permit him to take the deposition of Colonel Kevin J. Raybine ("Col. Raybine"). Plaintiff contends that it is necessary for him to depose Col. Raybine in order to "complete the administrative record" in this case. ( Id. at 1.) Defendant Eric Fanning, in his capacity as Acting Secretary, Department of the Air Force ("Defendant") has filed a response ("Response") (DN 45) to the Motion, and Plaintiff has filed a reply ("Reply"). (DN 46.) For the following reasons, Plaintiff's Motion is DENIED.
1. Motion for Additional Discovery
Plaintiff contends that the "undisputed facts, " supported by the administrative record,  are that he was disenrolled from the Air Force Reserve Officer Training Corps ("AFROTC") program at the University of Louisville due to purported "multiple alcohol related incidents." (DN 44 at 1.) Plaintiff contends that the administrative record demonstrates that Defendant can point to only two alcohol related incidents, the first of which occurred in November 2009, before he joined the AFROTC. ( Id. ) According to Plaintiff, Defendant has alleged that it "waived" the November 2009 when Plaintiff was permitted to enter the AFROTC. ( Id. )
Plaintiff asserts that if permitted to testify, Col. Raybine "will verify that [Plaintiff] was not given notice or a hearing regarding the alleged incidents for which he was disenrolled and was denied the opportunity to be heard on this matter prior to his disenrollment." ( Id. at 2.) Plaintiff contends that Col. Raybine will provide "crucial" testimony as to at least three factual issues: (1) that there was no alcohol-related incident in November 2009, and relatedly, that the Air Force has deliberately mischaracterized that incident in order to support his disenrollment; (2) that there was no "waiver" of the November 2009 incident prior to Plaintiff's ROTC enrollment; and (3) that Defendant ordered Plaintiff's disenrollment due to a "completely fabricated and unsubstantiated allegation" that he was involved in a sexual assault. ( Id. ) Plaintiff maintains that Col. Raybine's testimony is necessary to "complete the record" and will allow the Court to determine whether Plaintiff's disenrollment violated Defendant's procedures and the Administrative Procedure Act ("APA").
2. Defendant's Response
Defendant argues in the Response that because Plaintiff's only remaining claim in this case is based on the APA, it would be improper to allow Plaintiff to take discovery beyond the scope of the administrative record. Specifically, Defendant claims that the only remaining issue in this case is the legal determination of whether the AFROTC's decision to disenroll Plaintiff was "arbitrary and capricious, " and as such, the Court's review is limited to the administrative record in existence at the time the AFROTC made its decision. (DN 45 at 2.) Defendant argues that Plaintiff has not shown the existence of any exceptional circumstances that would justify the Court's review going beyond the administrative record.
Further, Defendant argues that the Motion is based on mere assertions by Plaintiff, unsupported by the administrative record, as to Col. Raybine's expected testimony. Defendant emphasizes that Col. Raybine was not the decision-maker who determined that Plaintiff would be disenrolled, and that Col. Raybine could make only subjective assessment of the intentions of those who actually made the disenrollment decision. (DN 45 at 4.) Defendant maintains that whether or not certain sexual assault allegations were fabricated is irrelevant because the basis for Plaintiff's disenrollment was violation of AFROTC alcohol policy. ( Id. at 3 n.2.) Defendant disputes Plaintiff's contention that the AFROTC waived any alcohol violation, and argues that in any event, a waiver of the November 2009 incident is not at issue because both the administrative record and Plaintiff's filings with the Court demonstrate that Plaintiff engaged in multiple violations of the AFROTC alcohol policy. ( Id. at 4.)
Finally, Defendant contends that The November 2009 incident is relevant because it demonstrates that Plaintiff was formally trained on the alcohol policy and that he expressed a commitment to abide by the policy. (DN 45 at 6.) However, Defendant argues, the record displays sufficient evidence of alcohol policy violations to support the disenrollment regardless of whether the November 2009 incident was waived. ( Id. )
3. Plaintiff's Reply
The thrust of Plaintiff's Reply (DN 46) is that the Court has discretion to expand or supplement the administrative record. Plaintiff argues that the need for "background information, " recognized by the Sixth Circuit as one ground for permitting discovery beyond the administrative record in cases governed by the APA, is precisely the reason he seeks to depose Col. Raybine.
Plaintiff believes this justification for his disenrollment is pretextual, and that the "real reason" he was disenrolled was his being "accused of, initially investigated for, and found not to have engaged in" a sexual assault. ( Id. at 2 n.1.) Plaintiff claims that the dates of the two incidents cited by Defendants were October 30, 2009 and December 18, 2010, and that affidavits submitted by Col. Raybine and Captain Stacey Swanson ("Capt. Swanson") following an investigation of the October 30, 2009 incident "make clear that [he] was not an AFROTC cadet at the time of the incident, was not accused of drinking, was not disciplined, and that the counseling provided to him was not intended as discipline and was not to serve as the basis for later sanctions." ( Id. (citation omitted).) He further argues that the administrative record shows that Defendant has claimed that Col. Raybine waived ...