UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
HOWARD M. BERRY,
Plaintiff,
v. Case No. 17-cv-2112 (CRC)
MARK ESPER, Secretary of the Army, 1 et al.,
Defendants.
MEMORANDUM OPINION
On November 5, 2009, Nidal Malik Hasan, an Army medical officer, went on a shooting
spree at Fort Hood, a military post in Texas, killing 13 people and injuring 30 others. Former
Army Staff Sergeant Joshua Berry was stationed at Fort Hood that day and, during the attack,
was in a briefing room inside one of its buildings. Hasan at some point fired 30 to 40 rounds just
outside that building. Berry told others in the room to get down on the floor. He then heard
bullets strike the room’s exterior metal doors, leapt over a desk to take cover and, in doing so,
dislocated his shoulder.
Joshua’s father believes that his son—who died in 2013—should have received a Purple
Heart for his injury. Unlike other military decorations, which are awarded only upon the
recommendation of a commander, the Purple Heart is given to any servicemember who meets
certain regulatory criteria. Army Reg. 600-8-22, ¶ 2.8(c). The Army’s regulations provide that a
servicemember is entitled to the Purple Heart if he is wounded as the result of a terrorist attack
1 Pursuant to Federal Rule of Civil Procedure 25(d), Secretary Esper has been automatically substituted for Ryan D. McCarthy, who no longer serves as Secretary. committed by a foreign terrorist organization. 10 U.S.C. § 1129a; Army Reg. 600-8-22,
¶ 2-8(b)(10).
Initially, the Army declined to award the Purple Heart to servicemembers injured or
killed in the Fort Hood attack because, though Hasan admitted that he was inspired by Al-Qaeda
in the Arabian Peninsula and was in contact with one of its senior recruiters, the terrorist group
was not understood to be formally behind the attack. But Congress clarified in a 2015 statute
that servicemembers injured during attacks inspired by foreign terrorist organizations and
committed by individuals who were in communication with such organizations could qualify for
the Purple Heart. 10 U.S.C. § 1129a(b); Army Reg. 600-8-22, ¶ 2-8(b)(10)(b). In turn, the
Secretary of the Army determined that servicemembers injured or killed in the Fort Hood attacks
were eligible for the Purple Heart if they met the other regulatory criteria. See Administrative
Record (“A.R.”) 78–79.
Shortly after that announcement, the plaintiff applied for his son to receive the award.
The U.S. Army Decorations Board denied his application in March 2015 on the ground that the
attack did not directly cause Berry’s injury. A.R. 6. In doing so, it relied on an email from a
Fort Hood staff attorney stating that—while he was not certain—he believed that Hasan had not
shot at the building where Berry was located. Id.
The Decorations Board informed the plaintiff of its decision by letter and explained that
he could apply to the Army Board for Correction of Military Records if he felt the decision was
unjust. He did so. Along with his application for review, he filed witness statements his son had
made to investigators and a statement from another individual indicating that Hasan had indeed
shot at the building inside which Berry had been injured. A.R. 7–9.
2 By a 2-to-1 vote, the Corrections Board recommended that Berry receive a Purple Heart.
A.R. 10. The Board found it clear that Berry’s injury “met the basic medical criteria” for award
of the Purple Heart—i.e., that he suffered a qualifying “wound” during the attack. A.R. 9; see
Army Reg. 600-8-22, ¶ 2.8(e). The real issue, in the Board’s view, was “the degree to which the
enemy (i.e., the terrorist) caused his injury,” A.R. 9—a necessary consideration under the Army
regulations, Army Reg. 600-8-22, ¶ 2.8(f).
On this point, the Board began by citing the regulations’ examples of injuries that would
warrant a Purple Heart, including those incurred “while making a parachute landing from an
aircraft that had been brought down by enemy fire” or “as a result of a vehicle accident caused
by enemy fire.” Id. ¶ 2-8(i)(1). The Board observed that Berry’s injury was not obviously
analogous: the examples “describe[d] circumstances under which the individual would not have
control over his or her bod[y],” while Berry was injured as a result of his own decision to leap
over the desk for cover. A.R. 9. And yet, the Board explained, Berry would not have made that
decision but for the active shooter outside the building. Id. Though it did not expressly
reconcile these competing points, the Board was evidently persuaded that the latter prevailed and
established causation. It recommended that Berry be granted a Purple Heart. A.R. 10.
But a few months later, the Deputy Assistant Secretary of the Army—exercising the
Secretary’s authority to override the Correction Board’s recommendations—found to the
contrary. She registered her disagreement in a single paragraph of a one-page letter:
I have reviewed the findings, conclusions, and Board member recommendations. I find there is not sufficient evidence to grant relief. Therefore, under the authority of [10 U.S.C. § 1552], I have determined that the facts do not support a conclusion that his injury met the criteria for a Purple Heart.
A.R. 2.
3 Berry’s father challenges that denial under the Administrative Procedures Act (“APA”).
He claims that the Deputy Assistant Secretary’s decision was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” and that it was “unsupported by substantial
evidence.” 5 U.S.C. § 706(2)(A), (E). The Court agrees that the decision violates the APA, and
it will remand this matter to the Army for reconsideration.
Challenges to agency decisions under the APA are properly resolved on motions for
summary judgment—which the parties have both filed here. Unlike with a typical summary
judgment motion, however, the relevant question is not whether the record creates a material
dispute of fact. Instead, the court’s job is to review the decision in light of the record before the
agency and to decide whether it complied with the APA.
To be sure, courts are “unusually deferential” toward military decisions regarding
servicemembers’ records, including those related to decoration. Kreis v. Sec’y of Air Force, 866
F.2d 1508, 1514 (D.C. Cir. 1989). But the summary denial here fails even that generous
standard of review. It provides no meaningful analysis—only a boilerplate determination “that
the facts do not support a conclusion that [Berry’s] injury met the criteria for a Purple Heart.”
A.R. 2. Why not? Was there conflicting evidence regarding how immediate of a threat Hasan
posed to Berry as he sat inside the building? Was the evidence clear but the Deputy Assistant
Secretary thought that Berry could have taken cover without injuring himself? Or did she read
the regulations as categorically taking the Purple Heart off the table for servicemembers injured
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
HOWARD M. BERRY,
Plaintiff,
v. Case No. 17-cv-2112 (CRC)
MARK ESPER, Secretary of the Army, 1 et al.,
Defendants.
MEMORANDUM OPINION
On November 5, 2009, Nidal Malik Hasan, an Army medical officer, went on a shooting
spree at Fort Hood, a military post in Texas, killing 13 people and injuring 30 others. Former
Army Staff Sergeant Joshua Berry was stationed at Fort Hood that day and, during the attack,
was in a briefing room inside one of its buildings. Hasan at some point fired 30 to 40 rounds just
outside that building. Berry told others in the room to get down on the floor. He then heard
bullets strike the room’s exterior metal doors, leapt over a desk to take cover and, in doing so,
dislocated his shoulder.
Joshua’s father believes that his son—who died in 2013—should have received a Purple
Heart for his injury. Unlike other military decorations, which are awarded only upon the
recommendation of a commander, the Purple Heart is given to any servicemember who meets
certain regulatory criteria. Army Reg. 600-8-22, ¶ 2.8(c). The Army’s regulations provide that a
servicemember is entitled to the Purple Heart if he is wounded as the result of a terrorist attack
1 Pursuant to Federal Rule of Civil Procedure 25(d), Secretary Esper has been automatically substituted for Ryan D. McCarthy, who no longer serves as Secretary. committed by a foreign terrorist organization. 10 U.S.C. § 1129a; Army Reg. 600-8-22,
¶ 2-8(b)(10).
Initially, the Army declined to award the Purple Heart to servicemembers injured or
killed in the Fort Hood attack because, though Hasan admitted that he was inspired by Al-Qaeda
in the Arabian Peninsula and was in contact with one of its senior recruiters, the terrorist group
was not understood to be formally behind the attack. But Congress clarified in a 2015 statute
that servicemembers injured during attacks inspired by foreign terrorist organizations and
committed by individuals who were in communication with such organizations could qualify for
the Purple Heart. 10 U.S.C. § 1129a(b); Army Reg. 600-8-22, ¶ 2-8(b)(10)(b). In turn, the
Secretary of the Army determined that servicemembers injured or killed in the Fort Hood attacks
were eligible for the Purple Heart if they met the other regulatory criteria. See Administrative
Record (“A.R.”) 78–79.
Shortly after that announcement, the plaintiff applied for his son to receive the award.
The U.S. Army Decorations Board denied his application in March 2015 on the ground that the
attack did not directly cause Berry’s injury. A.R. 6. In doing so, it relied on an email from a
Fort Hood staff attorney stating that—while he was not certain—he believed that Hasan had not
shot at the building where Berry was located. Id.
The Decorations Board informed the plaintiff of its decision by letter and explained that
he could apply to the Army Board for Correction of Military Records if he felt the decision was
unjust. He did so. Along with his application for review, he filed witness statements his son had
made to investigators and a statement from another individual indicating that Hasan had indeed
shot at the building inside which Berry had been injured. A.R. 7–9.
2 By a 2-to-1 vote, the Corrections Board recommended that Berry receive a Purple Heart.
A.R. 10. The Board found it clear that Berry’s injury “met the basic medical criteria” for award
of the Purple Heart—i.e., that he suffered a qualifying “wound” during the attack. A.R. 9; see
Army Reg. 600-8-22, ¶ 2.8(e). The real issue, in the Board’s view, was “the degree to which the
enemy (i.e., the terrorist) caused his injury,” A.R. 9—a necessary consideration under the Army
regulations, Army Reg. 600-8-22, ¶ 2.8(f).
On this point, the Board began by citing the regulations’ examples of injuries that would
warrant a Purple Heart, including those incurred “while making a parachute landing from an
aircraft that had been brought down by enemy fire” or “as a result of a vehicle accident caused
by enemy fire.” Id. ¶ 2-8(i)(1). The Board observed that Berry’s injury was not obviously
analogous: the examples “describe[d] circumstances under which the individual would not have
control over his or her bod[y],” while Berry was injured as a result of his own decision to leap
over the desk for cover. A.R. 9. And yet, the Board explained, Berry would not have made that
decision but for the active shooter outside the building. Id. Though it did not expressly
reconcile these competing points, the Board was evidently persuaded that the latter prevailed and
established causation. It recommended that Berry be granted a Purple Heart. A.R. 10.
But a few months later, the Deputy Assistant Secretary of the Army—exercising the
Secretary’s authority to override the Correction Board’s recommendations—found to the
contrary. She registered her disagreement in a single paragraph of a one-page letter:
I have reviewed the findings, conclusions, and Board member recommendations. I find there is not sufficient evidence to grant relief. Therefore, under the authority of [10 U.S.C. § 1552], I have determined that the facts do not support a conclusion that his injury met the criteria for a Purple Heart.
A.R. 2.
3 Berry’s father challenges that denial under the Administrative Procedures Act (“APA”).
He claims that the Deputy Assistant Secretary’s decision was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” and that it was “unsupported by substantial
evidence.” 5 U.S.C. § 706(2)(A), (E). The Court agrees that the decision violates the APA, and
it will remand this matter to the Army for reconsideration.
Challenges to agency decisions under the APA are properly resolved on motions for
summary judgment—which the parties have both filed here. Unlike with a typical summary
judgment motion, however, the relevant question is not whether the record creates a material
dispute of fact. Instead, the court’s job is to review the decision in light of the record before the
agency and to decide whether it complied with the APA.
To be sure, courts are “unusually deferential” toward military decisions regarding
servicemembers’ records, including those related to decoration. Kreis v. Sec’y of Air Force, 866
F.2d 1508, 1514 (D.C. Cir. 1989). But the summary denial here fails even that generous
standard of review. It provides no meaningful analysis—only a boilerplate determination “that
the facts do not support a conclusion that [Berry’s] injury met the criteria for a Purple Heart.”
A.R. 2. Why not? Was there conflicting evidence regarding how immediate of a threat Hasan
posed to Berry as he sat inside the building? Was the evidence clear but the Deputy Assistant
Secretary thought that Berry could have taken cover without injuring himself? Or did she read
the regulations as categorically taking the Purple Heart off the table for servicemembers injured
while taking cover?
The denial letter provides no hints. In turn, the Court cannot meaningfully evaluate the
reasoning behind it. That is enough to warrant remand. The deference accorded to military
personnel decisions does not totally shield them from review. See, e.g., Saint-Fleur v. McHugh,
4 83 F. Supp. 3d 149, 157 (D.D.C. 2015). Rather, even a military personnel decision “is owed no
deference if it fails to ‘give a reason that a court can measure . . . against the arbitrary or
capricious standard of the APA.’” Coburn v. McHugh, 679 F.3d 924, 929 (D.C. Cir. 2012)
(quoting Kreis, 866 F.2d at 1514–15). Decisions that are “utterly unreviewable” must be vacated
as arbitrary and capricious. Kreis, 866 F.2d at 1514.
That is the case here. In the face of an eight-page Board recommendation that provided a
reasoned basis for awarding a Purple Heart, the Deputy Assistant Secretary summarily disagreed.
The Court could not grant deference to that change of course if it tried.
Not to say that summary denials must always be set aside under the APA. If, for
example, the Board had written a denial decision and the Deputy Secretary summarily affirmed
it, the Court could fairly presume (even if not with certainty) that she was adopting the Board’s
reasoning. In that case, “the agency’s path” might “reasonably be discerned.” Motor Vehicle
Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 27, 52 (1983). The
Court would also be more inclined to uphold the denial if it were obviously supported by the
record. It is not. Even if not clearly incorrect, the denial is at least on shaky ground. As the
Corrections Board observed, injuries caused by taking cover are not precisely like the examples
stated in the Army regulations. But neither are they much like the examples of injuries that do
not suffice: for instance, those attributable to “[a]ccidents . . . not related to or caused by enemy
action” or for “[s]elf inflicted wounds, except when in the heat of battle and not involving gross
negligence.” Army Reg. 600-8-22, ¶ 2.8(h)(8)–(9). The regulations also emphasize that “strict
interpretation of the requirement for the wound or injury to be caused by direct result of hostile
action” should not “preclude the award being made to deserving personnel.” Id. ¶ 2.8(i).
5 At a minimum, Berry’s case presents a more complicated issue of causation—whether an
injury incurred while taking cover from gunfire outside a building was “caused” by the gunfire
—than the Deputy Assistant Secretary’s summary denial suggests. The government’s arguments
that this issue was properly resolved against Berry are efforts to rationalize the Army’s cursory
denial. The APA demands that the Army itself—acting through its officers—explain its
resolution of the issue. See Pierce v. SEC, 786 F.3d 1027, 1034 (D.C. Cir. 2015) (“A reviewing
court may not supply a reasoned basis for an agency action that the agency itself did not give in
the record under review.”).
The Court is unwilling, however, to go the extra step of ordering that Berry be awarded a
Purple Heart. Rather, remand is proper. Dickson v. Sec’y of Defense, 68 F.3d 1396, 1407 (D.C.
Cir. 1995) (“Where an agency has failed . . . to explain the path it has taken, we have no choice
but to remand for a reasoned explanation.” (internal quotation omitted)). On remand, the Army,
assuming it wishes to stick with its determination, must explain why Berry is not entitled to a
Purple Heart and do so with sufficient clarity that “a court can measure” the denial “against the
‘arbitrary or capricious’ standard of the APA.” Kreis, 866 F.2d at 1514–15.
The Court will thus grant the plaintiff’s motion for summary judgment and deny the
defendants’ motion. A separate order accompanies this memorandum opinion.
CHRISTOPHER R. COOPER United States District Judge
Date: August 22, 2018