Baxley v. Wormuth

• Court: District Court, District of Columbia
• Decided: February 26, 2024
• Docket: Civil Action No. 2021-2245
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MICHAEL C. BAXLEY,

Plaintiff,

v. Civil Action No. 21-2245 (TSC)

CHRISTINE WORMUTH, et. al.,

Defendants.

MEMORANDUM OPINION

Michael Baxley, a former member of the U.S. Army, challenges the Army Board for

Corrections of Military Records’ (“Board”) decision not to upgrade his “Under Honorable

Conditions (General)” discharge to an Honorable discharge. Plaintiff contends the agency’s

decision violated the Administrative Procedure Act (“APA”) and the Due Process Clause of the

Fifth Amendment.

Having considered the administrative record, the Complaint, and the parties’ briefs, the

court will GRANT Defendants’ Motion for Summary Judgment and DENY Plaintiff’s Cross

Motion for Summary Judgment.

I. BACKGROUND

Plaintiff was a member of the U.S. Army in the 1970s. AR172. He was initially

stationed at Fort Lee, Virginia, but was subsequently transferred to the United States Army

Retraining Brigade at Fort Riley, Kansas, due to misconduct. AR6. While at Fort Lee, Plaintiff

received one year of probation for three drug counts, id.; AR174–75, and was separately fined

for improper driving, AR229. At Fort Riley, Plaintiff was determined to be a “drug

rehabilitation failure” and was barred from reenlisting in the Army. AR178.

Page 1 of 11 Plaintiff subsequently engaged in several acts of misconduct at Fort Riley. First, he was

sentenced to four months of confinement, hard labor, and reduction of rank for failure to obey a

lawful order and grabbing a female soldier. AR226. Second, Plaintiff was arrested for wrongful

possession of marijuana and resisting apprehension. AR200; AR243. Third, he had privileges

revoked and was given extra duty for another failure to obey a lawful order. AR249. And

finally, Plaintiff was given fourteen days of extra duty and lost privileges for engaging in a fist

fight. AR250.

Plaintiff’s commander therefore recommended that he be discharged from the Army for

misconduct. AR98. His commander provided a list of incidents of misconduct and poor

performance to be considered by the board of officers. See AR101–02. Plaintiff was found

competent during a mental status evaluation prior to his discharge, AR255, was advised of his

rights, and was informed that he was being considered for discharge due to misconduct, AR218–

19. Plaintiff requested that his case be considered at an administrative separation hearing and

asked for counsel at the hearing. AR221.

The list of Plaintiff’s acts of misconduct was admitted at the separation hearing without

objection from Plaintiff’s counsel. AR209. Plaintiff chose to testify at the hearing, where he

explained that he “had trouble with drugs and alcohol,” was “found to be a rehabilitative failure,”

but was “not guilty of” misconduct. AR210. The board of officers convened for the hearing,

however, recommended that Plaintiff be discharged with an “Undesirable Discharge Certificate”

for misconduct. AR211. It noted that some of the exhibits in the record were “possibly exempt

information according to [Army Regulation] 600-85” and therefore it did not consider those

exhibits in its decision. Id.

Page 2 of 11 Plaintiff’s counsel subsequently brought to the commander of the Retraining Brigade’s

attention that some of the evidence in the record should not have been considered under various

regulations, including Army Regulation 600-85, and asked that Plaintiff’s discharge be changed

to a general Honorable discharge. AR212–13. A judge advocate reviewed the proceedings and

concluded that “[t]here was sufficient other evidence to support the recommended discharge.”

AR9. The Commander of the Retraining Brigade approved the recommendation and officially

ordered that Plaintiff be discharged with an Undesirable Discharge Certificate, AR9, which

reflected “frequent incidents of a discreditable nature with civil or military authorities,” AR181

(formatting modified). Plaintiff later appealed to the Army Discharge Review Board, which

upgraded his discharge to “Under Honorable Conditions (General).” AR183.

Approximately forty years later, Plaintiff was diagnosed with Dysthymic Disorder and

rendered fully disabled due to service-connected disability. AR161. He requested the Board

upgrade his discharge to “Honorable” so he could receive a disabled veterans identification card.

AR163. The Board had a psychologist assess Plaintiff, and the psychologist concluded that

Plaintiff did not have Dysthymic Disorder when he was discharged and even if he had the

disorder, the diagnosis would not have been a mitigating factor in his discharge. AR160–61.

The psychologist therefore recommended no change to his discharge characterization, AR161,

and the Board denied Plaintiff’s request, AR123.

Plaintiff then filed this action pro se, claiming that the Board failed to properly consider

his claim that exempt evidence was improperly considered during his separation proceeding. See

Compl., ECF No. 1. The Government agreed to reconsider Plaintiff’s case, ECF No. 15, and the

court granted voluntary remand to the Board, Min. Order, Feb. 16, 2022. On remand, the Board

again sought advice from a clinical psychologist regrading whether the records support that

Page 3 of 11 Plaintiff had a behavioral health condition at the time of discharge, and, if so, whether that

mitigated the misconduct resulting in his discharge. AR79–80. The psychologist concluded that

he did not have a behavioral health condition while in the Army, AR80, and the Board again

concluded that relief was not warranted, AR21. The Board considered both psychologists’

advisory opinions, the case file, and Plaintiff’s responses to the advisory opinions. Id. It

explained that Plaintiff engaged in a “litany” of “misbehavior,” and fell “far short of achieving a

characterization . . . remotely . . . ‘honorable.’” AR22. The Board also considered Plaintiff’s

concerns about exempt evidence being considered at his separation proceeding, but concluded

that the Government did not improperly introduce exempt evidence. AR23.

The case then returned to the court, see ECF No. 22, and the parties cross-moved for

summary judgment, ECF Nos. 24, 32.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56, a court “shall grant summary judgment 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). A fact is material if “a dispute over it

might affect the outcome of a suit under governing law; factual disputes that are ‘irrelevant or

unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d

889, 895 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

An issue is genuine if “the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Id. (quoting Anderson, 477 U.S. at 248).

The party seeking summary judgment bears the burden to provide evidence

demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). “When parties file cross motions for summary judgment, each motion is

viewed separately, in the light most favorable to the non-moving party, with the court Page 4 of 11 determining, for each side, whether a judgment may be entered in accordance with the Rule 56

standard.” Howard Town Ctr. Dev., LLC v. Howard Univ., 267 F. Supp. 3d 229, 236 (D.D.C.

2017) (internal quotation omitted).

Federal Rule of Civil Procedure 56(a) does not apply to claims seeking APA review,

however, “because of the court’s limited role in reviewing the administrative record.” Coe v.

McHugh, 968 F. Supp. 2d 237, 239 (D.D.C. 2013). Instead, the court must decide as a matter of

law “whether the agency action is supported by the administrative record and otherwise

consistent with the APA standard of review.” Id. at 240. Under the APA, the court sets aside

agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” 5 U.S.C. § 706(2). The plaintiff bears the burden of establishing that the agency’s

action is invalid. Fulbright v. McHugh, 67 F. Supp. 3d at 81, 89 (D.D.C. 2014).

III. ANALYSIS

A. Jurisdiction

Although the parties have not contested jurisdiction, the court has “an ‘independent

obligation’” to ensure its jurisdiction “before addressing the merits.” New Jersey v. EPA, 989

F.3d 1038, 1045 (D.C. Cir. 2021) (citations omitted). None of the statutes cited in the Complaint

confer jurisdiction to review decisions of the Army Board for the Correction of Military Records.

See Compl. at 1 (citing 28 U.S.C. §§ 1331, 1343, 1346, 2201). Generally, however, “final

agency action for which there is no other adequate remedy in a court are subject to judicial

review.” 5 U.S.C. § 704.

Moreover, the D.C. Circuit has repeatedly held that federal courts have jurisdiction “to

evaluate, in light of familiar principles of administrative law, the reasonableness of the

Secretary’s decision not to take certain corrective action with respect to [military records].”

Kreis v. Sec’y of the Air Force, 406 F.3d 684, 686 (D.C. Cir. 2005) (citation omitted); accord, Page 5 of 11 e.g., Cone v. Caldera, 223 F.3d 789, 793 & n.6 (D.C. Cir. 2000); Frizelle v. Slater, 111 F.3d 172,

176 (D.C. Cir. 1997). Courts in this district have construed these decisions to grant the district

court jurisdiction to review decisions of military corrections boards as well. See, e.g., Roberts v.

United States, 883 F. Supp. 2d 56, 63 (D.D.C. 2012); Burt v. Winter, 503 F. Supp. 2d 388, 390

(D.D.C. 2007); Homer v. Roche, 226 F. Supp. 2d 222, 225–26 (D.D.C. 2002); McPherson v.

Harker, No. 18-cv-3082, 2021 WL 1820290, at *9 (D.D.C. May 6, 2021); Bland v. Sec’y of

Army, No. 05-cv-02143, 2007 WL 902302, at *1 (D.D.C. Mar. 23, 2007). The court finds these

decisions persuasive.

B. APA Claim

i. Reviewing Board decisions

Under the APA, the court is “highly deferential” to agency actions. Envt’l. Def. Fund,

Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981). One fundamental requirement is that

agencies engage in “reasoned decisionmaking.” Michigan v. EPA, 576 U.S. 743, 750 (2015). To

do so, the agency must have considered relevant data and articulated an explanation establishing

a “rational connection between the facts found and the choice made.” Bowen v. Am. Hosp.

Ass’n, 476 U.S. 610, 626 (1986) (quoting Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“Motor Vehicle Mfrs.”)). The court may not “substitute

its judgment for that of the agency,” but instead considers whether “the agency has relied on

factors which Congress has not intended it to consider, entirely failed to consider an important

aspect of the problem, offered an explanation for its decision that runs counter to the evidence

before the agency, or is so implausible that it could not be ascribed to a difference in view or the

product of agency expertise.” Motor Vehicle Mfrs., 463 U.S. at 43.

Page 6 of 11 The Government argues that an “unusually deferential application of the arbitrary or

capricious standard” applies in this case. Mem. in Supp. of Mot. for Summ. J., ECF No. 24-1 at

22–23 (“Motion”) (quoting Cone, 223 F.3d at 793). “This deferential standard” applies to some

cases involving review of military correction board decisions and “is calculated to ensure that the

courts do not become a forum for appeals by every soldier dissatisfied with [their] ratings.”

Cone, 223 F.3d at 793. Under that standard, “the plaintiff has the burden of showing ‘by cogent

and clearly convincing evidence’ that the decision was the result of a material legal error or

injustice.” Escobedo v. Green, 602 F. Supp. 2d 244, 249 (D.D.C. 2009) (citation omitted). The

D.C. Circuit has applied this heightened standard primarily in “decisions concerning active

personnel, such as performance reviews and promotion decisions,” and has declined to do so in

cases involving “reviewing disability rating decisions.” Sissel v. Wormuth, 77 F.4th 941, 946–47

(D.C. Cir. 2023). The court need not decide whether this “unusually deferential” version of the

arbitrary or capricious standard applies in this case, however, because under either standard, the

agency’s decision complied with the APA. Infra Section III.B.ii.

Plaintiff, on the other hand, argues that the court should review the Board’s decision for

substantial evidence. Pl.’s Cross Mot. for Summ. J. & Opp’n to Def.’s Mot. for Summ. J., ECF

No. 32 at 32–33 (“Cross Motion”). “But the text of the APA applies ‘substantial evidence’

review only to formal proceedings, not informal adjudications.” Phoenix Herpetological Soc’y

v. U.S. Fish & Wildlife Serv., 998 F.3d 999, 1005 (D.C. Cir. 2021). And the D.C. Circuit has

held that “[a]djudications to correct a military record must be supported by substantial evidence”

only “if the Board adjudicating the claim has been ‘designated as a special board by the

Secretary.’” McKinney v. Wormuth, 5 F.4th 42, 46 n.1 (D.C. Cir. 2021) (citing 10 U.S.C.

§ 1558(b)(1)(A), (f)(3)(B)). In similarly reviewing a decision of the Army Board for Correction

Page 7 of 11 of Military Records, McKinney concluded that there was no reason to believe “that the Secretary

designated the Board . . . as a special board.” Id. So too here. Consequently, the substantial

evidence standard is inapplicable.

ii. The Board engaged in reasoned decisionmaking

The Board’s decision complies with the APA. It “considered the case file, the two

advisory opinions provided by [the Board’s] behavioral health professionals, and all matters

submitted by [Plaintiff], including [his] response to the advisory opinions.” AR21; see AR6–14

(reviewing Plaintiff’s service record, including his status changes, misconduct, mental status

evaluation, and discharge process, as well as his Veterans Administration (“VA”) medical

records and the Board’s psychologist’s review of Plaintiff’s case). The Board then concluded

that, although Plaintiff “reported feeling depressed in-service, documentation does not support”

that “he had a psychiatric disorder or other condition that impaired his ability to know right from

wrong and make conscious choices understanding the consequences.” AR15. Thus, “after

considering all the evidence, the Board members unanimously determined that relief is not

warranted in this case.” AR21. In doing so, the Board did not rely on erroneous factors, ignore

“an important aspect of the problem,” or come to a conclusion “counter to the evidence.” Motor

Vehicle Mfrs., 463 U.S. at 43; see AR21–24.

Plaintiff disagrees, arguing that the Government incorrectly considered evidence

prohibited under Army Regulation 600-85. Cross Motion at 31–32, 34–36. Army Regulation

600-85 provides that administrative separation with less than honorable discharge may not result

from consideration of “evidence obtained directly or indirectly from the member having been

involved in” the Army’s alcohol and drug rehabilitation program. AR92. The Board, however,

took into account Plaintiff’s concern that evidence inadmissible under Army Regulation 600-85

Page 8 of 11 was improperly considered at his separation proceeding, and concluded that he “failed to

demonstrate by a preponderance of evidence that the Army committed an error during [his]

involuntary administrative separation process.” AR23. The Board found persuasive the judge

advocate’s conclusion that none of the evidence admitted at Plaintiff’s hearing fell under Army

Regulation 600-85 because the regulation does not prohibit “mention of a member’s failure in

rehabilitation, as long as involvement in the program was not the motivating factor in

recommending discharge,” AR9; see AR92–94, and here, there was no such motivating factor,

see AR211.

That conclusion was not arbitrary or capricious. 1 The regulation provides that “no use

may be made” of exempt evidence, and further, that “if the decision to initiate discharge action

against a servicemember is motivated by the member’s . . . having been involved in [the

rehabilitation program], the discharge will be with an honorable discharge.” AR93. The

negative implication is thus that honorable discharge is not required if the member’s discharge is

not motivated by Plaintiff’s failure in rehabilitation, or that fact is not used in the decision, as the

Board concluded.

Plaintiff also contends that the Board did not consider that his mental health condition

“was evident during his military service.” Pl.’s Combined Opp’n and Reply in Supp. of Pl.’s

Cross Mot. for Summ. J., ECF No. 37 at 10–12. But the Board did consider Plaintiff’s argument

about his mental health history, and concluded that “the evidence that [Plaintiff] had a mitigating

1 The Government does not argue that the court should defer to the Board’s interpretation of Army Regulation 600-85 under Kisor v. Wilkie, 139 S. Ct. 2400 (2019). The court need not afford deference to the Board’s interpretation, moreover, because the regulation is unambiguous. See id. at 2423–24 (“Before even considering deference, the court must” “make a conscientious effort to determine, based on indicia like text, structure, history, and purpose, whether the regulation really has more than one reasonable meaning.”).

Page 9 of 11 behavioral health condition during his two years in the Army is, at best, very thin.” AR22. The

Board also found persuasive the psychologist’s determination that “any symptoms” Plaintiff

experienced at the time of his discharge “did not rise to the level of a behavioral health

condition.” Id. Finally, the Board explained that the discharge characterization “is a separate

issue from the VA’s determination of service-connected disability.” AR23. The Board therefore

fulfilled its duty under the APA to connect the facts to its conclusion and consider evidence that

may appear contrary to its conclusion. See Motor Vehicle Mfrs., 463 U.S. at 43.

C. Due Process Claim

Plaintiff also alleges that Defendant violated procedural due process by depriving him of

access to veterans’ benefits. The Due Process Clause prohibits the “depriv[ation] of life, liberty,

or property, without due process of law.” U.S. Const. amend. V. “The first inquiry in every due

process challenge is whether the plaintiff has been deprived of a protected interest in ‘property’

or ‘liberty.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999) (quoting U.S. Const.

amend. XIV). “Only after finding the deprivation of a protected interest” does the court “look to

see if the [Government’s] procedures comport with due process.” Id.

“The procedural component of the Due Process Clause does not protect everything that

might be described as a ‘benefit.’” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005)

(citation omitted). Plaintiff asserts that the Board’s decision deprived him of veterans’ benefits,

which require an Honorable discharge. Cross Motion at 36–38. But “[t]o have a property

interest in a benefit,” a plaintiff must “have a legitimate claim of entitlement to it”—not just “a

unilateral expectation of it.” Town of Castle Rock, 545 U.S. at 756.

Plaintiff does not currently qualify for or receive veterans’ benefits. Applying this

framework, “a former service-member, like Plaintiff, ‘who might qualify for potential future

Page 10 of 11 veterans’ benefits,’ does not have ‘a due process property interest in the expectation of those

benefits.’” Rudo v. McHugh, 931 F. Supp. 2d 132,143 (D.D.C. 2013) (quoting Owings v. Brown,

86 F.3d 1178 (Table) (Fed Cir. 1996)). Thus, the Board did not deprive Plaintiff of a protected

property interest by declining to upgrade his discharge certification to one that would entitle him

to veterans’ benefits.

IV. CONCLUSION

For the foregoing reasons, the court will GRANT Defendants’ Motion for Summary

Judgment, ECF No. 24, and DENY Plaintiff’s Cross Motion for Summary Judgment, ECF

No. 32. An Order will accompany this Memorandum Opinion.

Date: February 26, 2024

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

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