Crumley v. United States

United States Court of Federal Claims

No. 16-389 C

Filed: August 18, 2017

)

MATTHEW T. CRUMLEY, )

)

Plaintiff, ) RCFC 12(b)(1); Lack of Subject-Matter

) Jurisdiction

v. ) RCFC 52.1; Judgment on the

) Administrative Record

THE UNITED STATES, )

)

Defendant. )

)

Matthew L. Eanet, Eanet, PC, Los Angeles, CA, for plaintiff.

Michael D. Snyder, United States Department of Justice, Civil Division, Washington, DC, for

defendant.

OPINION AND ORDER

SMITH, Senior Judge

This action is before the Court on defendant’s Motion to Dismiss, and on the parties’

Cross-Motions for Judgment on the Administrative Record. On March 28, 2016, plaintiff,

Matthew Crumley, filed a complaint asserting that he was wrongfully separated from the United

States Air Force (“USAF”) and seeks various forms of relief, including an order vacating his

discharge from the USAF and the resulting back pay. On March 17, 2017, defendant

(“government”) filed a motion to dismiss plaintiff’s complaint for lack of subject-matter

jurisdiction pursuant to Rule 12(b)(1) of the Rules of the U.S. Court of Federal Claims

(“RCFC”), or, in the alternative, for judgment on the administrative record. On April 21, 2017,

plaintiff filed a cross-motion for judgment on the administrative record. The Court held Oral

Argument on the matter on July 27, 2017.

For the following reasons, the Court grants defendant’s Motion for Judgment on the

Administrative Record, and denies plaintiff’s Cross-Motion for Judgment on the Administrative

Record.

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A. Background

Matthew Crumley served in the USAF from May 26, 2000 until his honorable discharge

at the rank of Major in March of 2012. Complaint (hereinafter “Compl.”) at 1. On November

20, 2010, Crumley was injured after stepping onto astro-turf that covered an open grave site

while serving as an Honor Guard Ceremonial Guardsman at a funeral ceremony. Motion to

Dismiss or Alternatively, for Judgment Upon the Administrative Record (hereinafter “MTD”) at

4. On November 22, 2010, Crumley emailed senior USAF officials informing them of the

incident and his injuries, as well as stating his intention to bring legal action for his injuries and

his expectation of USAF support. Id.

On December 21, 2010, Crumley received a Letter of Admonishment (“LOA”) from

Colonel Keith Boyer for allegedly disrespectful and uncooperative behavior. Compl. at 7; see

also MTD at 4 (citing Administrative Record (hereinafter “AR__”) at 96, 351). The alleged

behavior included shouting at personnel at Hanscom Air Force Base’s (“AFB”) legal office and

raising his voice to the base’s staff judge advocate. MTD at 4. According to the defendant,

“Mr[.] Crumley was so loud that his shouting could be heard by the Hanscom Air Force Base

Commander from a different section of the headquarters building.” Id. at 4-5.

Crumley first responded to the LOA on January 6, 2011. Id. at 5. The LOA and

Crumley’s response became the basis for an Unfavorable Information File (“UIF”) filed by

Major General Walter Givhan on January 26, 2011. Id. Crumley provided an additional

response to the LOA and UIF on February 10, 2011. Id. Major General Givhan “establish[ed]

the UIF and included the LOA in it” on March 10, 2011. Id. at 6. In August of 2011, Colonel

Boyer wrote a referral Education/Training report (“2011 Report”) which incorporated the UIF

and stated that “Crumley displayed disrespectful and unprofessional behavior . . . for which he

received a[n LOA].” Compl. at 9; see also MTD at 6. Crumley responded to the 2011 Report,

asserting that any perceived unprofessional conduct was a misunderstanding. MTD at 6.

In 2011, the USAF conducted a reduction-in-force (“RIF”), pursuant to 10 U.S.C. §

638(a), which sought “to separate up to 30 percent of those subject to the review,” including

Major Crumley. Id. (citing AR 349). The RIF board “non-selected” Crumley for retention and

notified Crumley of its decision in a letter dated October 27, 2011. AR 134. Crumley’s official

Certificate of Release states that the reason for his separation was “Reduction in Force.” Id. at

136. Crumley was released from service with an Honorable Discharge on March 1, 2012. MTD

at 7.

On January 3, 2012, Crumley “initiated an Inspector General (“IG”) complaint raising an

allegation of reprisal for being a whistleblower pursuant to the [Military Whistleblower

Protection Act].” Id. Crumley claimed that he had been separated for reporting the reason for

his injury to senior USAF staff. Id. On January 25, 2012, the IG concluded that Crumley did not

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present circumstances which afforded Crumley whistleblower status under that Act, and that

Crumley’s complaint warranted no further action and should be closed. MTD at 7-8.

Crumley later appealed his discharge to the Air Force Board for Correction of Military

Records (“AFBCMR”), which denied the appeal on January 28, 2014. Compl. at 9. Crumley

then appealed to the Undersecretary of Defense, and that appeal was denied on August 6, 2014.

Id. Crumley requested a special board pursuant to 10 U.S.C. § 1558, and the board issued a

decision denying Crumley’s requested relief on December 16, 2016. AR 6-7. The AFBCMR

special board found that Crumley had not provided sufficient evidence to show that he was the

victim of some error or injustice, that the LOA, UIF, and 2011 Report should remain in

Crumley’s record, and that the RIF board’s decision should not be overturned. Id.

Crumley alleges that the government violated various USAF procedures when the

government and its agents issued the LOA, the UIF, and the 2011 Report. Reply in Support of

Plaintiff’s Cross-Motion for Judgment on the Administrative Record (hereinafter “P’s Reply”) at

4-9. Crumley further argues that these documents formed the basis for his discharge, and thus

the RIF board’s decision, and the AFBCMR’s subsequent decisions, are arbitrary and capricious.

Id.

The government filed a motion to dismiss Crumley’s claim pursuant to RCFC 12(b)(1).

MTD at 1. The government extensively argues that this Court lacks jurisdiction over claims

under the Declaratory Judgment Act, the Administrative Procedure Act (“APA”), the Military

Whistleblower Protection Act (“MWPA”), and the federal mandamus statute, all of which are

cited in plaintiff’s Complaint. Further, the government maintains that Crumley’s claim relates to

nonjusticiable military personnel decisions. Id. at 20. The government asserts that this Court

cannot review discretionary military personnel matters. Id. at 28 (quoting Walters v. United

States, 37 Fed. Cl. 215, 220 (1997)).

The government characterizes Crumley’s claim as a dispute over the merits of each

decision leading to his discharge, rather than a dispute over its procedure. Id. at 30. These

decisions, according to the government, fall within the military’s discretion, and are therefore

nonjusticiable. Id. In the government’s view, “[t]he only procedural deficiency claimed in this

entire set of facts is that [Colonel] Boyer failed to get Mr. Crumley’s signature on the LOA

indicating Mr. Crumley’s acknowledgement of the right to provide statements before a final

decision was made.” Id. This, says the government, is “an entirely harmless error” because

Crumley had notice of the LOA, as evidenced by his response to it. Id. (citing AR 98-99).

In the alternative, the government’s Motion requests that this Court grant judgment on the

administrative record, arguing that Crumley is unable to meet his burden of proof on that record.

MTD at 31-32. The government asserts that substantial evidence supports the AFBCMR’s

decision, pointing out that Crumley’s yelling at Hanscom AFB was loud enough to be heard in a

different part of the building. Id. at 32 (citing AR 96, 351). In addition, the government claims

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that, “[w]hile he attempted to recant his admission later, Mr. Crumley admitted that he was

disrespectful . . . .” Id. (citing AR 93). The government further argues that Crumley has not

provided substantial evidence to demonstrate that the LOA, UIF, and 2011 Report did not follow

Air Force protocol and that Crumley cannot establish that these documents were the proximate

cause of his discharge. Id. at 34.

Crumley asserts that there are multiple justiciable procedural defects related to the LOA,

UIF, and 2011 Report. P’s Reply at 4-9. Crumley claims that the adverse actions against him

were conducted in bad faith and were fueled by improper motives. Id. at 4. Further, Crumley

alleges that his superiors failed to comply with military regulations and statutes related to the

LOA, UIF, and 2011 Report. Id. at 5-9. According to Crumley, these procedural defects render

the LOA, UIF, and 2011 Report “unsubstantiated, unwarranted, and not completed in accordance

with applicable regulations,” and, in turn, these defects render his separation under the RIF, as

well as the AFBCMR’s decision, “arbitrary, capricious, an abuse of discretion, unsupported by

substantial evidence, and contrary to law.” Id. at 1, 11.

II. Standard of Review

A. Rule 12(b)(1) – Motion to Dismiss for Lack of Subject-Matter Jurisdiction

This Court’s jurisdictional grant is primarily defined by the Tucker Act, which provides

this Court the power “to render any judgment upon any claim against the United States founded

either upon the Constitution, or any Act of Congress or any regulation of an executive

department, or upon any express or implied contract with the United States . . . in cases not

sounding in tort.” 28 U.S.C. § 1491(a)(1) (2012) (emphasis added). Although the Tucker Act

expressly waives the sovereign immunity of the United States against such claims, it “does not

create any substantive right enforceable against the United States for money damages.” United

States v. Testan, 424 U.S. 392, 398 (1976). Rather, in order to fall within the scope of the

Tucker Act, “a plaintiff must identify a separate source of substantive law that creates the right to

money damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in

relevant part).

When the Court’s subject-matter jurisdiction to hear a case is challenged, the plaintiff has

the burden of establishing by a preponderance of the evidence that this Court has jurisdiction

over its claims. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The

Court “must accept as true all undisputed facts asserted in the plaintiff’s complaint and draw all

reasonable inferences in favor of the plaintiff.” Trusted Integration, Inc. v. United States, 659

F.3d 1159, 1163 (Fed. Cir. 2011) (citing Henke v. United States, 60 F.3d 795, 797 (Fed. Cir.

1995)).

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B. Rule 52.1(c) – Judgment on the Administrative Record

The Court reviews decisions of military correction boards based upon the Administrative

Record. Walls v. United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009). When a party requests

judgment on the Administrative Record under RCFC 52.1, the Court makes findings of fact as if

it were conducting a trial on a paper record. Bannum, Inc. v. United States, 404 F.3d 1346, 1354

(Fed. Cir. 2005). Looking to the Administrative Record, the Court must determine whether a

party has met its burden of proof based on the evidence in the record. Id. at 1355.

There is a deferential standard when reviewing military personnel decisions, and this

Court “will not disturb the decision of the corrections board unless it is arbitrary, capricious,

contrary to law, or unsupported by substantial evidence.” Chambers v. United States, 417 F.3d

1218, 1227 (Fed. Cir. 2005) (citing Haselrig v. United States, 333 F.3d 1354, 1355 (Fed. Cir.

2003)). Further, the Court may not “substitute [its] judgment for that of the military departments

when reasonable minds could reach different conclusions on the same evidence.” Heisig v.

United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983). Finally, the plaintiff must overcome the

presumption of regularity which attaches to actions of the military and military records

correction boards. Armstrong v. United States, 205 Ct. Cl. 754, 762–63 (1974) (noting that

“[p]resumption favors the validity of official military acts,” including those of a military records

correction board, absent evidence to the contrary) (citations omitted).

III. Discussion

Crumley’s prayer for relief is structured in such a way that it appears that he is, first and

foremost, requesting declaratory relief. The Complaint specifically cites the Declaratory

Judgment Act, the APA, the Tucker Act, the Military Pay Act, the MWPA, and the federal

mandamus statute. Compl. at 1-2. However, the substantive crux of Crumley’s Complaint is a

military pay claim resulting from Crumley’s allegedly wrongful discharge and the subsequent

AFBCMR special board decision. It is well established that the Military Pay Act, 37 U.S.C. §

204, is a separate, money-mandating source of law that provides the Court with jurisdiction. See,

e.g., Martinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir. 2003) (en banc); Holley v. United

States, 124 F.3d 1462, 1465 (Fed. Cir. 1997). The other requested relief is merely ancillary to

Crumley’s money damages claim, typical of a military pay claim.

Under the Tucker Act, the Court has the ability to award equitable relief in the form of

declaratory judgment and “issue orders directing restoration to office or position, placement in

appropriate duty or retirement status, and correction of applicable records,” when such an order

would “provide an entire remedy and . . . complete the relief afforded by the judgment [on a

claim for monetary damages under the Act].” 28 U.S.C. § 1491(a)(2); see also Mercier v. United

States, 114 Fed. Cl. 795, 800 (2014) (discussing the requirement under the Tucker Act for

declaratory judgments to be attendant to an award of a money damages), rev'd in part on other

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grounds, 786 F.3d 971 (Fed. Cir. 2015). As plaintiff’s claim falls under the purview of the

Military Pay Act, and, as such, is based upon a money mandating statute, the Court has

jurisdiction to entertain Crumley’s claim for back pay and review of the AFBCMR special

board's final decision. See Martinez, 333 F.3d at 1303 (citations omitted); see also Richey v.

United States, 322 F.3d 1317, 1323 (Fed. Cir. 2003) ("If an officer elects to pursue a remedy

before the Corrections Board, after the Board renders a final decision, the officer may effectively

obtain review of that decision in the Court of Federal Claims by filing suit under the Tucker

Act.") (citation omitted).

In addition to arguing that this Court lacks jurisdiction over plaintiff’s claim, the

government disputes the justiciability of those claims. The Federal Circuit has held that “[t]he

merits of a military staffing decision are committed ‘wholly to the discretion of the military.’”

Allphin v. United States, 758 F.3d 1336, 1341 (Fed. Cir. 2014) (citing Adkins v. United States, 68

F.3d 1317, 1322-23 (Fed. Cir. 1995)). “[D]etermining who is fit or unfit to serve in the armed

services is not a judicial province.” Heisig, 719 F.2d at 1156. However, “[u]nlike merit-based

challenges, procedural challenges to military decisions may be justiciable, particularly if statutes

or regulations govern the decision.” Allphin, 758 F.3d at 1342 (citing Adkins, 68 F.3d at 1323).

In this instance, there is no dispute over the merits of any of the adverse documentation

against Crumley. Crumley even admitted to the behavior which ultimately formed the basis of

that documentation. AR 93. Crumley instead challenges the AFBCMR special board’s decision

on the grounds that the LOA, UIF, and 2011 Report should have never been considered by the

RIF board because they suffer from various procedural defects. P’s Reply at 5-9.

The procedural defects which Crumley has alleged are immaterial to the AFBCMR

special board’s decision. Crumley posits that the LOA failed to comply with AFI 36-2907

because it does not provide specifics such as when, where, or how the plaintiff was disrespectful

to a superior officer. P’s Reply at 5. AFI 36-2907 provides that when administering an LOA,

the letter, if written, states “[w]hat the member did or failed to do, citing specific incidents and

their dates.” AFI 36-2907, para. 4.5.1.1. The LOA in question includes plenty of context and

enough details for any reader to understand the nature and timing of these incidents. AR 96-97.

The letter describes Major Crumley’s original e-mail to superiors, interactions with AFB legal

office personnel, a phone conversation between Major Crumley and Colonel Boyer, and the

initial date—November 22, 2010—on which the concerning actions began. Id.

In addition to these substantive defects, plaintiff claims that because “(1) the LOA did not

contain the required endorsement for signature by Major Crumley; and (2) the Commander did

not acknowledge receipt of applicant’s rebuttal prior to deciding to establish a UIF” it was an

error for the AFBCMR to fail to correct Major Crumley’s records. P’s Reply at 6-7; see also AR

13. While it is true the LOA suffers from the missing signatures, plaintiff responded to the LOA

on two occasions, January 6, 2011 and February 10, 2011. AR 97-100. After receiving

plaintiff’s initial response on January 6, 2011, Colonel Boyer went so far as to visit Major

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Crumley to further discuss the LOA and provided him the second opportunity to respond. Id.

Included in Major Crumley’s second response is an admission and understanding of the situation,

“I take full responsibility and ownership regarding my conduct/tone in meeting in the Judge

Advocate’s Office on 22 Nov 10.” AR 100. Therefore, it cannot be said that these minor

procedural deficiencies are in any way material defects that warrant removing these files from

plaintiff’s records.

Major Crumley had notice, multiple chances to respond, a clear understanding of the

contents of the LOA, UIF, and 2011 Report, and suffered no substantial deprivation of rights as a

result. Accordingly, plaintiff has failed to show that the AFBCMR special board's decision was

arbitrary, capricious, contrary to law, or unsupported by substantial evidence. The RIF board

properly considered the LOA, UIF, and 2011 Report and was well within its discretion to non-

select Major Crumley for retention.

IV. Conclusion

For the reasons set forth above, defendant’s MOTION for Judgment on the

Administrative Record is GRANTED. Plaintiff’s CROSS-MOTION for Judgment on the

Administrative Record is DENIED. The Clerk is directed to enter judgment in favor of

defendant, consistent with this opinion.

IT IS SO ORDERED.

s/ Loren A. Smith

Loren A. Smith,

Senior Judge

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