Crumley v. United States

• Court: Court of Appeals for the Federal Circuit
• Decided: November 8, 2022
• Docket: 22-1232
• Status: Unpublished

Opinion

Case: 22-1232 Document: 39 Page: 1 Filed: 11/08/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

MATTHEW T. CRUMLEY, Plaintiff-Appellant

v.

UNITED STATES, Defendant-Appellee ______________________

2022-1232 ______________________

Appeal from the United States Court of Federal Claims in No. 1:21-cv-00976-EGB, Senior Judge Eric G. Bruggink. ______________________

Decided: November 8, 2022 ______________________

MATTHEW LEO EANET, Eanet, PC, Los Angeles, CA, for plaintiff-appellant.

EBONIE I. BRANCH, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for defendant-appellee. Also represented by BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M. MCCARTHY. ______________________ Case: 22-1232 Document: 39 Page: 2 Filed: 11/08/2022

Before MOORE, Chief Judge, LOURIE and PROST, Circuit Judges. PROST, Circuit Judge. Matthew T. Crumley appeals an order of the U.S. Court of Federal Claims dismissing his complaint as barred by claim preclusion. We affirm. BACKGROUND I On November 20, 2010, Mr. Crumley—then an active- duty officer in the U.S. Air Force—was performing Honor Guard duties at a funeral when he stepped on artificial turf that, unbeknownst to him, covered an open grave. Injured in the fall, Mr. Crumley sought medical and legal assis- tance at Hanscom Air Force Base. On December 21, 2010, Mr. Crumley received a Letter of Admonishment (“LOA”) for allegedly disrespectful and uncooperative behavior dur- ing his interactions with Hanscom personnel. The LOA be- came the basis of an Unfavorable Information File (“UIF”) placed in Mr. Crumley’s official military personnel file. Mr. Crumley also received a Referral Education/Training Report (“Training Report”) dated August 2011, which noted his “disrespectful and unprofessional behavior” toward Hanscom personnel “for which he received a[n] [LOA].” App’x 1 65. In 2011, the Air Force conducted a reduction in force (“RIF”). In the September to October 2011 timeframe, the RIF Retention Board non-selected Mr. Crumley for reten- tion. He received an honorable discharge effective March 1, 2012.

1 “App’x” refers to Mr. Crumley’s Appendix. Case: 22-1232 Document: 39 Page: 3 Filed: 11/08/2022

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II On December 21, 2012, Mr. Crumley applied to have the Air Force Board for the Correction of Military Records (“Board”) remove the LOA, UIF, and negative language in the Training Report from his records. The Board denied Mr. Crumley’s application. Mr. Crumley then sought re- view by a special board under 10 U.S.C. § 1558. The special board likewise denied Mr. Crumley’s requested relief. On March 28, 2016, Mr. Crumley brought an action in the Court of Federal Claims for wrongful discharge—seek- ing reinstatement, correction of his military records, and back pay. Crumley v. United States, 133 Fed. Cl. 607, 609, 613 (2017) (“Crumley II”). 2 He alleged that the LOA, UIF, and Training Report suffered from various procedural de- fects and that the RIF Retention Board improperly consid- ered them. Id. at 612. The government moved for judgment on the administrative record, and the Court of Federal Claims granted it. The court determined that “[t]he procedural defects [that Mr.] Crumley has alleged are immaterial to the . . . special board’s decision.” Id. Ac- cording to the court: [Mr.] Crumley had notice, multiple chances to re- spond, a clear understanding of the contents of the LOA, UIF, and [Training] Report, and suffered no substantial deprivation of rights as a result. Ac- cordingly, [he] has failed to show that the . . . spe- cial board’s decision was arbitrary, capricious, contrary to law, or unsupported by substantial evi- dence. The RIF [Retention] [B]oard properly

2 The Court of Federal Claims had previously dis- missed an earlier-filed complaint for lack of jurisdiction be- cause Mr. Crumley had not yet sought special-board review. Crumley v. United States, 122 Fed. Cl. 803 (2015) (“Crumley I”). Case: 22-1232 Document: 39 Page: 4 Filed: 11/08/2022

considered the LOA, UIF, and [Training] Report and was well within its discretion to non-select [Mr.] Crumley for retention. Id. at 613. Mr. Crumley appealed the Court of Federal Claims’ judgment to this court, and we affirmed. Crumley v. United States, 738 F. App’x 1020 (Fed. Cir. 2018) (“Crum- ley III”) (nonprecedential). III In July 2019, Mr. Crumley again applied for Board cor- rection of his military records. He asserted that, while lit- igating Crumley II, he learned that the Training Report “never actually became a part of” his official military per- sonnel file and was therefore “erroneously considered by the RIF Retention Board.” App’x 78. The Air Force Eval- uation/Recognition Programs Administrator prepared an advisory opinion dated May 25, 2020, that recommended denying the application, and on May 26, 2020, the Board informed Mr. Crumley that he had thirty days to comment on the advisory opinion or provide additional evidence sup- porting his request. Mr. Crumley maintains that he timely commented on the advisory opinion via written correspond- ence dated June 25, 2020 (still within the thirty-day win- dow). Appellant’s Br. 20 (citing App’x 94–97). Regardless, on June 3, 2020—before the comment window closed—the Board considered his application in an executive session and voted against correcting the record. And, on July 15, 2020, the Board issued its final decision, denying Mr. Crumley’s application for the reasons set forth in the advisory opinion while maintaining that it had not received comments from Mr. Crumley regarding the advisory opin- ion. In February 2021, Mr. Crumley brought another action in the Court of Federal Claims—again for wrongful dis- charge, and again seeking reinstatement and back pay. This time, however, he alleged—as examples of procedural defects justifying his requested relief—both that (1) the Case: 22-1232 Document: 39 Page: 5 Filed: 11/08/2022

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Training Report was never in his official military personnel file, so the RIF Retention Board improperly considered it; and (2) the Board prematurely denied his July 2019 appli- cation by failing to wait for and consider his timely com- ments on the advisory opinion. The government moved under Court of Federal Claims Rule 12(b)(6) to dismiss the complaint as barred by claim preclusion based on the final judgment in Crumley II. The Court of Federal Claims agreed with the govern- ment and dismissed the complaint as barred by claim pre- clusion. It first set forth the three requirements for claim preclusion—that (1) the parties are identical or in privity; (2) the first suit proceeded to a final judgment on the mer- its; and (3) the second claim is based on the same set of transactional facts as the first (i.e., the claims share a com- mon “nucleus of operative facts”). Crumley v. United States, No. 21-976C, 2021 WL 4438547, at *4 (Fed. Cl. Sept. 28, 2021) (“Crumley IV”) (citing Ammex, Inc. v. United States, 334 F.3d 1052, 1055 (Fed. Cir. 2003)). Be- cause Mr. Crumley did not dispute that the first two re- quirements were met, the court focused on the third: whether the instant claim shared a common nucleus of op- erative facts with that in Crumley II. The court concluded that it did: In both cases, [Mr.] Crumley alleged facts that re- late to the same series of events, which occurred at the same time and which are all related in origin. The facts alleged here and in Crumley II are based upon the RIF [Retention] Board’s review of his mil- itary record, including the LOA, UIF, and Training Report, the [RIF Retention Board]’s decision to non-select him for retention, and the [Board]’s de- nial of his request for relief from discharge. Fur- ther, in both cases, plaintiff sought the same relief: reinstatement, correction of his military records, and back pay. Case: 22-1232 Document: 39 Page: 6 Filed: 11/08/2022

Id. The Court of Federal Claims also rejected Mr. Crum- ley’s argument that, because the alleged facts concerning consideration of the Training Report and premature denial of the July 2019 application were discovered or arose after his initial complaint in Crumley II, claim preclusion should not apply. The court acknowledged that “new facts that are materially relevant to the claim or issue” may supply a ba- sis for avoiding claim preclusion. See id. at *5 (cleaned up). But, in its view, these alleged facts were not materially rel- evant to Mr. Crumley’s wrongful-discharge claim because they could not “affect the outcome of the suit under the gov- erning law.” 3 Id. (cleaned up). As to the Training Report, the court noted that it con- tained only one negative statement regarding the events underlying the LOA: “During this period, [Mr.] Crumley displayed disrespectful and unprofessional behavior to- ward” Hanscom personnel “for which he received a[n] [LOA].” Id. at *6 (quoting App’x 65). But the LOA and UIF—both part of Mr. Crumley’s official military personnel file—“include[d] far more details” of those events. Id. In- deed, the LOA itself contained the very same negative in- formation: “Your unprofessional and immature behavior toward” Hanscom personnel “is inexcusable.” Id. (quoting App’x 55). Accordingly, “[b]ecause the same information included in the Training Report was also included in the

3 The Court of Federal Claims also determined that the alleged fact concerning the Training Report was not “new” in the relevant sense because Mr. Crumley discov- ered it years earlier while litigating Crumley II and there- fore could have raised it in that litigation. Crumley IV, 2021 WL 4438547, at *5. As we discuss below, because Mr. Crumley’s failure to challenge the court’s materiality analysis suffices to affirm, we need not consider this aspect of the court’s decision. Case: 22-1232 Document: 39 Page: 7 Filed: 11/08/2022

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LOA, the Training Report alone could not have affected the outcome of the [RIF Retention] [B]oard’s decision”; there- fore, whether it was included in Mr. Crumley’s official mil- itary personnel file was not material to his wrongful- discharge claim. Id. As to the Board’s alleged premature denial of the July 2019 application, the court’s reasoning flowed from its de- termination regarding the Training Report. Mr. Crumley based his July 2019 application on the same Training Re- port allegation: because it wasn’t in his official military personnel file, it was improperly considered. But, because that allegation wasn’t material, neither was the alleged premature denial of his July 2019 application. See id. at *7 (“Even if it was improper for the [Board] to consider [the July 2019] application . . . without waiting for [Mr. Crum- ley’s] response, it was error without injury as the substance of the Training Report was already before the RIF [Reten- tion] [B]oard from other documents.”). The court therefore dismissed Mr. Crumley’s complaint as barred by claim pre- clusion. Mr. Crumley timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a)(3). DISCUSSION We review de novo the Court of Federal Claims’ dis- missal for claim preclusion. E.g., Cunningham v. United States, 748 F.3d 1172, 1175 (Fed. Cir. 2014) (referring to claim preclusion as “res judicata”). Mr. Crumley’s main argument against claim preclu- sion emphasizes that the alleged facts underlying this case are “new” because they were discovered or arose after his initial complaint in Crumley II. The Court of Federal Claims acknowledged that “new facts” may render a second claim not precluded. See id. at *5 (cleaned up). But, ac- cording to the court, being new wasn’t enough; new alleged facts also needed to be material. See id.; see also Whole Case: 22-1232 Document: 39 Page: 8 Filed: 11/08/2022

Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2305 (2016) (endorsing the approach outlined in section 24 of the Re- statement (Second) of Judgments, which “notes that devel- opment of new material facts can mean that a new case and an otherwise similar previous case do not present the same claim” (emphasis added)), abrogated on other grounds by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022); Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 140 S. Ct. 1589, 1596 (2020) (“Events that occur after the plaintiff files suit often give rise to new material operative facts that in themselves, or taken in conjunction with the antecedent facts, create a new claim to relief.” (emphasis added) (cleaned up)). And, in the court’s view, Mr. Crumley’s purportedly new alleged facts weren’t mate- rial. Crumley IV, 2021 WL 4438547, at *6–7. Mr. Crumley, however, doesn’t challenge the Court of Federal Claims’ materiality analysis. For example, he doesn’t argue that the court erred by requiring that his “new” alleged facts be material. Nor does he argue that those facts are material. He simply says nothing on the subject. Given that the court’s claim-preclusion determi- nation rested on its materiality analysis—regardless of whether Mr. Crumley’s alleged facts were new—his failure to challenge (or even acknowledge) that analysis on appeal is conspicuous. 4 As the appellant, it fell to Mr. Crumley to demonstrate error in the Court of Federal Claims’

4 It’s all the more conspicuous given that (1) the Court of Federal Claims noted that Mr. Crumley’s response to the government’s motion to dismiss “d[id] not address the issue of materiality,” Crumley IV, 2021 WL 4438547, at *5 n.3, even though the government’s motion raised the issue; and (2) after the government’s brief in this appeal called out this same deficiency in Mr. Crumley’s opening brief, e.g., Appellee’s Br. 15–16, 22–23, he declined to file a reply brief. Case: 22-1232 Document: 39 Page: 9 Filed: 11/08/2022

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judgment. See, e.g., SmithKline Diagnostics, Inc. v. Helena Labs. Corp., 859 F.2d 878, 892 (Fed. Cir. 1988); accord In re Cmty. Home Fin. Servs. Corp., 32 F.4th 472, 484 (5th Cir. 2022) (“On appeal, the burden is on the appellant[] to show error.” (cleaned up)); Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995) (“Because the appellant comes to the court of appeals as the challenger, he bears the burden of demonstrating the alleged error . . . .”). In this case, with- out any developed argument from Mr. Crumley on the ma- teriality issue—and there is none—he has given us no basis to disturb the Court of Federal Claims’ claim-preclusion de- termination and resultant dismissal. So we affirm. CONCLUSION We have considered Mr. Crumley’s remaining argu- ments and find them unpersuasive. For the foregoing rea- sons, we affirm. AFFIRMED