Evans v. United States

In the United States Court of Federal Claims

No. 16-717C

(Filed: November 10, 2016)

)

DAVID O. EVANS, )

)

Plaintiff, )

) Motion for Discovery; RCFC 26;

v. ) Supplementation of the Administrative

) Record

THE UNITED STATES, )

)

Defendant. )

)

Louise A. Paris, Canton, MI, for plaintiff.

Sonia M. Orfield, Commercial Litigation Branch, Civil Division, United States

Department of Justice, Washington, DC, with whom were Douglas K. Mickle, Assistant

Director, Robert E. Kirschman, Jr., Director, and Benjamin C. Mizer, Principal Deputy

Assistant Attorney General, for defendant. Shanna L. Cronin, Major, Judge Advocate

General’s Corps, Litigation Division, Military Personnel Law, Department of the Army,

of counsel.

ORDER DENYING PLAINTIFF’S MOTION FOR DISCOVERY AND TO

SUPPLEMENT THE ADMINISTRATIVE RECORD

FIRESTONE, Senior Judge.

Pending before the court in the above-captioned military pay case is plaintiff

David O. Evans’s motion for discovery (ECF No. 16), filed October 4, 2016. Mr. Evans

states that he is entitled to discovery pursuant to Rule 26 of the Rules of the Court of

Federal Claims (“RCFC”) in order to supplement the administrative record.

I. BACKGROUND

Mr. Evans filed his complaint in this case on June 20, 2016, seeking review of a

January 12, 2016 final decision by the Army Board of Corrections of Military Records

(“ABCMR”) denying his request for an upgrade of his other-than-honorable-conditions

discharge in 1960. 1 Mr. Evans has unsuccessfully sought review of his discharge in

1962, 1965, 1975, and 2001. Administrative Record (“AR”) 7-8, 401, 462, 476-77. Mr.

Evans’s requests for reconsideration of the ABCMR decisions were denied in 2012 and

2013. AR 7-8, 311, 350.

In 2014, the Secretary of Defense issued a memorandum permitting review of

discharges that may have been triggered by post-traumatic stress disorder (“PTSD”) or

PTSD-related conditions prior to the current understanding of that disorder. AR 12, 25-

28. In 2015, Mr. Evans received a diagnosis of service-connected PTSD from Dr. John

F. Paul, Ph.D., a private clinical psychologist. AR 22-24. Based on this diagnosis and

the 2014 Secretary of Defense memorandum, Mr. Evans again requested the ABCMR to

upgrade his discharge. AR 18-21. As noted, the ABCMR denied the request on January

12, 2016. AR 2-15.

Mr. Evans filed suit in this court on June 20, 2016, seeking $300,000 in disability

compensation, military back-pay, full Veterans Affairs benefits, and reversal of the

ABCMR’s decision not to upgrade his discharge. Compl. 2.

On October 3, 2016, the government filed a motion to dismiss the complaint for

lack of jurisdiction pursuant to RCFC 12(b)(1). The government argues that this court

does not have jurisdiction over any of Mr. Evans’s claims. The government also filed the

administrative record containing Mr. Evans’s records before the ABCMR and argues, in

the alternative, that should the court possess jurisdiction, the government is entitled to

judgment on the administrative record pursuant to RCFC 52.1.

In the pending motion for discovery, filed the day after the government submitted

its motion to dismiss, Mr. Evans states that he “wants to be allowed to question the

Department of the Army about its January 2016 decision,” Pl.’s Mot. 2, including the

“mental impressions of examiners of decision makers” or reasoning of the ABCMR

members, see Pl.’s Reply 3. Mr. Evans also seeks clarifications of certain points in the

ABCMR’s January 2016 decision, such as why the ABCMR did not address whether

other officers were willing to take Mr. Evans into their platoons, Pl.’s Mot. 2, or

arguments that certain misconduct “was a cry for psychological evaluation,” Pl.’s Reply

3. Mr. Evans also seeks Army data on discrimination and discharges for other military

service members. Pl.’s Reply 3-5. 2 Mr. Evans states that his proposed interrogatories

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According to Mr. Evans’s military records, he enlisted in the United States Army for a three-

year commitment in 1958 and was discharged in 1960 after receiving three nonjudicial

punishments, a special court-martial, and two summary courts-martial. Administrative Record

(“AR”) 547-48, 570-79, 582, 634.

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While Mr. Evans alleges in his complaint that racial discrimination was a “psychological

stressor” that contributed to the actions which led to his discharge, Compl. 38, the court reads

Mr. Evans’s discovery request regarding racial discrimination and discharges as including

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“demonstrate that supplementation is necessary because the existing record is insufficient

to do a meaningful judicial review.” See Pl.’s Reply 5 (citing Axiom Res. Mgmt., Inc. v.

United States, 564 F.3d 1374 (Fed. Cir. 2009)). 3

The government argues that the court should deny Mr. Evans’s discovery motion

on the grounds that the court lacks jurisdiction to hear this case in its entirety. The

government also argues that Mr. Evans has not shown that supplementation of the record

is warranted. The government asserts that because the ABCMR considered the substance

of Mr. Evans’s claim and expressly addressed the issues raised in Mr. Evans’s motion for

discovery, there is no reason why the court cannot conduct meaningful judicial review.

The government also argues that Mr. Evans is not entitled to inquire into the “mental

process, that is, the thought process by which [the agency] made [its] decision.” Impresa

Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1339 (Fed. Cir.

2001) (citing United States v. Morgan, 313 U.S. 409, 422 (1941)); see also Citizens to

Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (“[W]here there are

administrative findings that were made at the same time as the decision . . . there must be

a strong showing of bad faith or improper behavior before such inquiry [into the mental

processes of administrative decisionmakers] may be made.”), abrogated on other

grounds by Califano v. Sanders, 430 U.S. 99 (1977).

The court finds that oral argument is not necessary in order to rule on Mr. Evans’s

discovery motion.

II. DISCUSSION

The court agrees with the government that Mr. Evans is not entitled to discovery

regarding the ABCMR decision and thus the motion for discovery is DENIED.

This order does not address the merits of the government’s motion to dismiss. It is

focused solely on the motion for discovery in which Mr. Evans seeks to supplement the

administrative record with interrogatories regarding the January 2016 ABCMR decision.

The court does not read any of Mr. Evans’s discovery requests as relating to the

government’s motion to dismiss the case on jurisdictional grounds, which could justify

discovery that does not relate directly to Mr. Evans’s treatment before the ABCMR. Because

discovery unrelated to Mr. Evans’s treatment before the ABCMR is plainly outside the scope of

this case, Mr. Evans’s request for discrimination and discharge data for other service members

must be denied. See RCFC 26(b). In addition, although the complaint does not state a claim for

discharge based on Title VII or another discrimination statute, the court notes that the Federal

Circuit has found that this court lacks jurisdiction over Title VII discrimination claims, which

must be brought in a federal district court. See, e.g., Baker v. United States, 642 F. App’x 989,

991 (Fed. Cir. 2016) (per curiam) (citations omitted).

3

Mr. Evans also requests leave to file a supplemental reply. The request is GRANTED.

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discovery with regard to the relevant jurisdictional facts. See, e.g., Lea v. United States,

592 F. App’x 930, 934 (Fed. Cir. 2014) (“[W]hen a motion to dismiss challenges a

jurisdictional fact alleged in a complaint, a court may allow discovery in order to resolve

the factual dispute.” (quoting Fairholme Funds Inc. v. United States, 114 Fed. Cl. 718,

720-21 (Fed. Cl. 2014) and also citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,

351 n.13 (1978))). Instead, Mr. Evans’s discovery request is focused on the merits of his

case. Mr. Evans specifically “requests that the Court limit its ruling to [his] Discovery

Motion and not rule on the jurisdiction issues or substantive issues until after the

scheduled hearing occurs.” Pl.’s Reply 1.

Generally, this court’s “review of a military corrections board is limited to the

administrative record” compiled by the agency. Walls v. United States, 582 F.3d 1358,

1368 (Fed. Cir. 2009) (citing Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006)).

Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”) provides

for judgment on the administrative record. Unlike the standard for a motion for summary

judgment, “genuine issues of material fact do not preclude a judgment on the

administrative record.” Young v. United States, 497 F. App’x 53, 59 n.8 (Fed. Cir. 2012)

(citing Bannum v. United States, 404 F.3d 1346, 1355-56 (Fed. Cir. 2005)). Instead, the

court resolves questions of fact based on the administrative record. Id. (citing Bannum,

404 F.3d at 1356).

Under established precedent in the Federal Circuit, this court will not disturb or

overturn the decision of the corrections board unless it is “arbitrary, capricious,

unsupported by substantial evidence, or contrary to law.” Lewis v. United States, 458

F.3d 1372, 1376 (Fed. Cir. 2006) (citation omitted). Ordinarily in military review cases

the court is largely concerned with whether the decision is procedurally fair and

supported by “substantial evidence” to show that it is not materially wrong. Heisig v.

United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983). The corrections board decision

must be sufficiently detailed for the court to ascertain the reasoning behind the denial of

relief to the applicant. See Buchanan v. United States, 621 F.2d 373, 383 (Ct. Cl. 1980).

Because the court’s review of a corrections board decision is limited to the record

and not de novo, the Supreme Court and the Federal Circuit have held that “parties’

ability to supplement the administrative record is limited . . . to guard against courts using

new evidence to ‘convert the ‘arbitrary and capricious’ standard into effectively de novo

review.’” Axiom, 564 F.3d at 1379-80 (citations omitted). If the administrative record

before the court is inadequate, “the proper course, except in rare circumstances, is to

remand to the agency for additional investigation or explanation.” Fla. Power & Light

Co. v. Lorion, 470 U.S. 729, 744 (1985). Therefore, supplementation of the record is

“limited to cases in which ‘the omission of extra-record evidence precludes effective

judicial review.’” Axiom, 564 F.3d at 1380 (citation omitted). This is particularly

important in military cases where the Federal Circuit has stated that “courts cannot

substitute their judgment for that of the military departments when reasonable minds

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could reach differing conclusions on the same evidence.” Heisig, 719 F.2d at 1156. Put

another way, this court does not sit as a “super correction board.” Skinner v. United

States, 594 F.2d 824, 830-31 (Ct. Cl. 1979). Tested by these standards, Mr. Evans’s

motion for discovery fails.

The eighteen proposed interrogatories Mr. Evans has propounded are aimed at

demonstrating that the ABCMR failed to either consider or discuss facts that Mr. Evans

believes are favorable to his claims. The interrogatories also seek to probe the mental

processes of the ABCMR members. None of these areas are appropriate for discovery

under the standards described above. For example, Mr. Evans asks why the ABCMR did

not address his arguments that other officers wrote positive reports and were willing to

take him into their platoons, that Mr. Evans suffered severe psychological distress and

should have received a psychological evaluation or should have been referred to a

disability board, and that his rights were not protected during the separation process.

Mr. Evans also seeks information about his neuropsychiatric examination and nonjudicial

punishments and courts martial, and more specific information about individuals referred

to in the record. Finally, Mr. Evans requests data on incidents of racial discrimination

related to discharges and the number of discharge upgrades that have been granted in the

past two years.

Assuming the court has jurisdiction over the merits of Mr. Evans’s case, the court

will review the record before the ABCMR to determine whether its decision is supported

by the evidence in the record. If the decision is not adequately explained or fails to

address important facts the proper course will be to remand to the agency. Fla. Power &

Light, 470 U.S. at 744. 4 In this regard, Mr. Evans has not identified any evidence that

was improperly or inadvertently left out of the record. Linc Gov’t Servs., LLC v. United

States, 95 Fed. Cl. 155, 158 (2010) (explaining distinction “between materials proffered

to ‘supplement’ or to ‘complete’ the administrative record”). Rather, the focus of Mr.

Evans’s discovery is on the adequacy of the “explanation” of the ABCMR’s decision.

Where discovery requests involve supplementing the administrative record with materials

that could encourage de novo review by the court, the motion to supplement must be

denied. See Riser v. United States, 93 Fed. Cl. 212, 217-18 (Fed. Cl. 2010).

III. CONCLUSION

For the reasons above, the court finds that Mr. Evans has failed to show that

discovery is appropriate or that supplementation of the administrative record is necessary.

Accordingly, Mr. Evans’s motion for discovery or to supplement the record is DENIED.

4

There are no allegations of fact to suggest that the ABCMR in reviewing Mr. Evans’s case

engaged in bad faith. Therefore, the exception for discovery into mental processes identified in

Impresa, 238 F.3d at 1338-39, does not apply.

5

Mr. Evans shall file his response to the government’s motion and any cross-

motion for judgment on the administrative record pursuant to RCFC 52.1 by

December 9, 2016.

The government shall file its reply in support of its motion and its response to

Mr. Evans’s cross-motion for judgment on the administrative record by January 9, 2017.

Mr. Evans shall file his reply in support of his cross-motion for judgment on the

administrative record by February 10, 2017.

IT IS SO ORDERED.

s/Nancy B. Firestone

NANCY B. FIRESTONE

Senior Judge

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