Trent Coburn v. Patrick J. Murphy

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 4, 2016 Decided July 8, 2016

No. 15-5009

TRENT M. COBURN,

APPELLANT

v.

PATRICK J. MURPHY, HONORABLE, ACTING SECRETARY OF

THE ARMY

APPELLEE

On Appeal from the United States District Court for the

District of Columbia

(No. 1:09-cv-01266)

Raymond J. Toney argued the cause and filed the briefs

for appellant.

Derrick W. Grace, Special Assistant U.S. Attorney,

argued the cause for appellee. With him on the brief was R.

Craig Lawrence, Assistant U.S. Attorney.

Before: HENDERSON, ∗ BROWN, AND PILLARD, Circuit

Judges.

∗

Judge Henderson was drawn to replace Chief Judge Garland, who originally

heard argument in this case but did not participate in the opinion. Judge

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Opinion filed for the Court by Circuit Judge BROWN.

BROWN, Circuit Judge: This case returns following our

first decision in Coburn v. McHugh, 679 F.3d 924 (D.C. Cir.

2012) (Coburn I). In that case we remanded to the Army

Board for Correction of Military Records (ABCMR) so the

ABCMR could provide a reasoned explanation (if possible)

for several questions we could not resolve. On remand, the

parties have largely resolved these questions, but for one, over

which a significant dispute remains. Today we affirm the

ABCMR’s decision to terminate Trent Coburn’s disability

processing and its conclusion that Coburn’s medical

conditions did not warrant further medical review.

I

Because our opinion in Coburn I explains the facts of this

case in detail, we will repeat here only the facts necessary to

understand this appeal.

In 2000, Coburn tested positive for marijuana use in a

urine test. Although Coburn pled not guilty in non-judicial

proceedings related to the test, he was found guilty and

received a negative non-commissioned officer evaluation

report based on the offense. Coburn challenged these results

but was not successful, and in 2001, the Army informed

Coburn he had been denied continued Army service.

In early 2002, prior to his separation from the Army,

Coburn contacted his primary care physician, Dr. Mario

Caycedo of the United States Army Medical Corps, seeking

an evaluation of his ongoing back pain and requesting that Dr.

Caycedo initiate a Medical Evaluation Board (MEB) to

Henderson has read the briefs, reviewed the record, and listened to the recording of

the oral argument.

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determine whether he was suitable for a medical discharge.

See Army Reg. 635–40 ¶-4–10 (2012). Dr. Caycedo agreed

to initiate an MEB, and over the next nine months, Coburn

underwent a series of appointments with various doctors to

evaluate his recovery from prior pulmonary problems and his

ongoing problems with back pain. Two visits to the

pulmonary clinic determined that Coburn’s pulmonary

problems had entirely resolved, and a rheumatologist ruled

out other conditions that could cause the kind of pulmonary

problems Coburn experienced. Separately, a neurosurgeon

offered surgery to Coburn to treat a disc protrusion in his

back. Coburn refused the surgery.

During this time, the Army tried to effect Coburn’s

administrative separation, but because MEB proceedings

generally take precedence over other types of discharges,

Coburn could not be separated until the MEB was no longer

ongoing. In October 2002, Dr. Caycedo reviewed Coburn’s

file, including the latest specialist assessments. He also

consulted with Colonel Wayne Schirner, another Army

physician who also reviewed Coburn’s file. Dr. Caycedo

concluded that Coburn’s MEB processing should be

terminated, and Colonel Schirner agreed. Dr. Caycedo later

supplied the following four reasons for terminating the MEB:

(1) “Mr. Coburn had declined the option for surgery that

could potentially correct his back pain, thus, I concluded that

he was not experiencing continual debilitating pain which he

had described initially;” (2) “In his several visits to the

clinics, Mr. Coburn did not appear to be in great discomfort,

and he was able to perform his assigned duties;” (3) “Both the

rheumatology and pulmonary clinics examined Mr. Coburn

and determined that he required no physical limitations with

regards to his pulmonary effusion and the condition had

resolved;” (4) “Mr. Coburn had raised no new medical

complaints over the past six months.” J.A. 169. Dr. Caycedo

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wrote a brief letter, which Colonel Schirner also signed,

stating that Coburn’s MEB proceedings should be terminated.

On the same day, Coburn received his Army discharge

papers.

Coburn challenged various aspects of these proceedings

before the ABCMR, to no avail. He appealed to the district

court and then to this Court, where we resolved some of his

claims and remanded for the ABCMR to reconsider Coburn’s

case and address five specific questions about which the

record materials did not evidence a reasoned explanation for

the Army’s decision-making. Coburn I, 679 F.3d at 934−35.

Since then, the ABCMR has issued a new opinion in response

to our remand, affirming the decision to terminate Coburn’s

MEB and proceed with his discharge.

Coburn appealed the ABCMR’s decision on remand,

alleging that his MEB had been wrongfully terminated,

contrary to the decision of the ABCMR. The district court

disagreed, concluding that the Army “hewed to its regulatory

program” by applying a reasonable interpretation of its own

regulations, which the plaintiff could not show to be clearly

erroneous. Coburn v. McHugh, 77 F. Supp. 3d 24, 30 (D.D.C.

2014). The district court also rejected Coburn’s claim that the

ABCMR’s decision to affirm the termination of his MEB was

arbitrary and capricious and unsupported by substantial

evidence. See id. at 31. The district court concluded the

ABCMR appropriately explained the basis for its decision that

Coburn did not suffer from a condition unfitting for service.

Id.

Coburn appeals to this Court.

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II

We review a district court’s summary judgment decision

in an ABCMR appeal “de novo, applying the same standards

as the district court.” Fontana v. White, 334 F.3d 80, 81

(D.C. Cir. 2003). Where, as here, the district court reviewed

the administrative decision under the Administrative

Procedure Act (APA), we also “review the administrative

action directly, according no particular deference to the

judgment of the District Court.” Holland v. Nat’l Mining

Ass’n, 309 F.3d 808, 814 (D.C. Cir. 2002). Thus, we review

the ABCMR’s decision on remand to determine whether it

was “arbitrary, capricious, an abuse of discretion or otherwise

not in accordance with law,” according to the standard of

review for administrative actions set out in section 706 of the

APA. 1

Coburn’s first claim on appeal is that the ABCMR acted

arbitrarily and capriciously by upholding the ability of Dr.

Caycedo and Colonel Schirner to terminate the MEB

proceedings consistent with Army regulations. To understand

Coburn’s claim, it is necessary to understand the basic

contours of the MEB process. The ABCMR, relying in part

on a staff attorney opinion prepared by the U.S. Army

Physical Disability Agency (USAPDA), described the process

as beginning with a soldier’s commander or physician

1

Coburn asserts that the Army is not entitled to special deference

here, which we afford to matters involving “a military judgment

requiring military expertise.” Kreis v. Sec’y of Air Force, 406 F.3d

684, 686 (D.C. Cir. 2005). While it is not clear that the Army is

asking for just this kind of special deference, it is not necessary for

us to decide the question, either. By applying the ordinary standard

of review due to any agency decision under the APA, we conclude

that the Army acted lawfully. We do not apply any special

deference in reaching this conclusion.

6

referring the soldier to an MEB. See Army Reg. 40-400 ¶7-1;

Army Reg. 40-501 ¶¶3-3 and 3-4. When a physician makes

such a referral, the physician necessarily determines that the

soldier does not meet at least one condition required by

medical retention standards. See Army Reg. 40-501, ch. 3.

Upon referral, a Medical Training Facility (MTF) takes

jurisdiction of the matter and (generally) the commanding

officer of that MTF assigns a physician to complete a medical

examination and narrative summary of the soldier’s medical

condition. These documents are then submitted to the MEB,

which is a board of two or more Army physicians empaneled

to review the soldier’s file and make a recommendation

concerning fitness for service or the need for an additional

referral for disability proceedings. See Army Reg. 40-400,

¶¶7-2, 7-3.

Here, Dr. Caycedo was the referring physician who

initiated the MEB process for Coburn. Colonel Schirner was

the appointing physician, responsible for convening the MEB

panel following completion of the medical examination and

narrative summary. According to Army regulations, Dr.

Schirner, as appointing physician, also serves as the

approving physician, who is charged with reviewing the MEB

panel’s recommendation and either agreeing with that

recommendation or sending it back to the panel for further

consideration. Army Reg. 40-400, ¶7-13. Before an MEB

panel could be convened, however, Dr. Caycedo withdrew his

referral and Colonel Schirner terminated the MEB process,

deciding that it was not necessary to empanel physicians for

an MEB.

The ABCMR concluded both that Dr. Caycedo had the

authority to revoke his MEB referral, and that Colonel

Schirner possessed the authority to refuse to empanel

physicians for an MEB if he determined it would not be

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warranted. Coburn disagrees, arguing that Colonel Schirner

lacked the legal authority to terminate the MEB process.

In support of his argument, Coburn reads the Army’s

regulations governing MEBs expansively. He begins with

Army Regulation 40-400 at paragraph 7-13, which prohibits

an appointing authority (here, Colonel Schirner) from

participating in the MEB proceedings “either as a member,

witness, consultant, or in any other capacity.” According to

Coburn, Colonel Schirner exceeded his authority as the

appointing physician when he terminated Coburn’s MEB

because doing so amounted to participating in the MEB

decision-making process, contrary to paragraph 7-13.

Additionally, Coburn asserts that the MEB process cannot be

terminated once it is underway. Because Dr. Caycedo

“initiated” an MEB and because Coburn was receiving

physical disability processing—the first step in any MEB

process—Colonel Schirner lacked authority (in Coburn’s

view) to prematurely terminate the MEB process.

Although the regulatory interpretation Coburn advances

is perfectly plausible, the standard of review he must

overcome requires more than merely articulating a reasonable

alternative reading of the relevant Army regulations. Rather,

he must demonstrate that the Army’s reading of its own

regulations is affirmatively unreasonable, being instead an

arbitrary and capricious interpretation according to the

standard of the APA. Coburn has not and cannot meet that

standard.

Here, the Army’s interpretation of its own regulation is

reasonable and neither arbitrary nor capricious. The

ABCMR concluded that Colonel Schirner, as the appointing

physician “was responsible for overseeing the overall MEB

process, and, as such, had the authority to terminate the

8

process if he also believed the applicant’s condition did not

warrant referral to an MEB.” J.A. 63. Coburn’s MEB

proceedings never got so far as to compile a narrative

summary or empanel an MEB. Instead, Colonel Schirner

“determined it was not necessary to appoint physicians and

convene an MEB after further medical evaluation was

conducted.” J.A. 64. Because Colonel Schirner “had the

authority to appoint physicians and convene an MEB if a

soldier required evaluation,” it “necessarily follows that

[Colonel Schirner] ha[d] the authority to not appoint

physicians to an MEB if he [found] no basis for the MEB.”

J.A. 64 (emphasis omitted from original).

While this reading may not be the only plausible way to

interpret the relevant Army regulations, it is certainly one

plausible interpretation, and nothing in the regulations

forecloses it. While paragraph 7-13 would clearly foreclose

Colonel Schirner as appointing/approving physician from

participating in MEB panel proceedings once a panel is

convened, nothing in the regulations prohibits him from

exercising authority during the parts of the MEB referral

process over which he is given oversight and control.

Accordingly, we hold that the Army’s interpretation of its

regulations is neither arbitrary nor capricious, nor contrary to

law. It was lawful for the ABCMR to conclude that Colonel

Schirner acted within his authority and discretion when he

terminated Coburn’s MEB proceedings.

Coburn also challenges the ABCMR’s factual conclusion

that his condition did not warrant a disability evaluation.

Here again we must affirm the ABCMR’s decision so long as

it comports with the APA’s deferential standard. To do so,

we must conclude that the ABCMR “examined the relevant

data and articulated a satisfactory explanation for its action

9

including a rational connection between the facts found and

the choice made.” Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). We can set aside

the ABCMR’s decision only if it is “arbitrary, capricious or

not based on substantial evidence.” Chappell v. Wallace, 462

U.S. 296, 303 (1983).

Coburn asserted to the ABCMR that empaneling an MEB

remained necessary because his condition had not improved

during the course of the preliminary MEB proceedings. In

response, the ABCMR advanced three reasons why an MEB

was not medically necessary (and thus, why a withdrawal of

the referral was within Colonel Schirner’s discretion): (1)

Coburn had never been diagnosed with disc herniation; (2)

Coburn did not suffer from radiculopathy; and (3) Coburn’s

back condition was successfully managed with conservative

treatment. Substantial evidence supports each of these

conclusions. The ABCMR cited to the record of Coburn’s

case, including numerous medical evaluations, many of which

occurred after Coburn’s initial referral to the MEB process.

This evidence amply supports the ABCMR’s conclusion that

“[n]o post-service medical records close in time to [Coburn’s]

discharge indicate any evaluation of [his] spine that casts

doubt on the Army’s conclusions.” J.A. 66.

While Coburn disputes the ABCMR’s interpretation of

his medical records, we are not entrusted with the authority to

evaluate the ABCMR’s actions de novo. Rather, we are

bound to uphold those actions so long as substantial evidence

supports them. Here, substantial evidence supports the

ABCMR’s conclusions.

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III

For these reasons, we affirm the holding of the district

court.

So ordered.