MCKINNEY v. ESPER

Filing 22

MEMORANDUM AND OPINION regarding Defendant's 8 Motion to Dismiss and Motion for Summary Judgment and Plaintiff's 11 Motion for Summary Judgment. Signed by Judge Tanya S. Chutkan on 5/26/2020. (lctsc)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

HUGH C. MCKINNEY,
Plaintiff,
v.
MARK T. ESPER,
Defendant.

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Case No. 18-cv-371 (TSC)

MEMORANDUM OPINION
While deployed in Iraq, Plaintiff Hugh McKinney’s National Guard unit experienced an
improvised explosive device (IED) attack in 2005. (ECF No. 1 (Compl.) ¶ 9.) Plaintiff requested a
Purple Heart for injuries sustained during this attack, but his request was denied three times by the
U.S. Army Human Resources Command, and a fourth time on appeal before the Army Board for
Correction of Military Records (Board). (Id. ¶¶ 35–41, 45.) Plaintiff sued the Secretary of the
Army, David Esper, under the Administrative Procedure Act, 5 U.S.C. §§ 701–06 (APA), arguing
that the Board’s denial was arbitrary, capricious, and unlawful. 5 U.S.C. § 706(2)(A).
Defendant has moved to dismiss Count II for lack of jurisdiction, and for summary judgment
on Counts I and III. (ECF No. 8 (Def. MTD/MSJ).) Plaintiff has cross-moved for summary
judgment on all counts. (ECF No. 11 (Pl. MSJ).) Having considered the entire record, and for the
reasons stated below, Defendant’s motions will be GRANTED, and Plaintiff’s motion will be
DENIED.

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I.

STANDARD

A. Summary Judgment
“[W]hen a party seeks review of agency action under the APA, the district judge sits as an
appellate tribunal. The ‘entire case’ on review is a question of law.” Am. Bioscience, Inc. v.
Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001); see also Richards v. INS, 554 F.2d 1173, 1177 &
n.28 (D.C. Cir. 1977). If the agency action was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,” it shall be set aside. 5 U.S.C. § 706(2)(A). Review under
the arbitrary and capricious standard, however, is “highly deferential” and “presumes the agency’s
action to be valid.” Envtl. Def. Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981); see also
Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) (“[A]
reviewing court may not set aside an agency [decision] that is rational, based on consideration of the
relevant factors and within the scope of the authority delegated to the agency by the statute.”)
Military board decisions are entitled to even greater deference than other agency actions.
Piersall v. Winter, 435 F.3d 319, 324 (D.C. Cir. 2006). The court need only find that the Board’s
decision “minimally contain a rational connection between the facts found and the choice made.”
Frizelle v. Slater, 111 F.3d 172, 176 (D.C. Cir.1997) (internal quotation marks and citations
omitted). This does not, however, dispense with the mandate that the Board’s action “be supported
by reasoned decisionmaking,” Haselwander v. McHugh, 774 F.3d 990, 990 (D.C. Cir. 2014), and
respond to all of Plaintiff’s non-frivolous arguments. Frizelle, 111 F. 3d at 177.
B. Motion to Dismiss
In assessing standing on a motion to dismiss, a court must “accept the well-pleaded factual
allegations as true and draw all reasonable inferences from those allegations in the plaintiff’s favor.”
Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (internal quotation marks and citations omitted).
A complaint may be dismissed “only if it is clear that no relief can be granted under any set of facts
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that could be proved consistent with the allegations.” Totten v. Norton, 421 F. Supp. 2d 115, 119
(D.D.C. 2006) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (internal quotation
marks omitted). A court has discretion to consider materials outside the pleadings to determine its
jurisdiction. See Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir. 2005).
II.

ANALYSIS

A. Count II
Count II alleges that the Board violated the APA in refusing to unconditionally excuse any
alleged untimeliness of Plaintiff’s Purple Heart request. (Compl. ¶¶ 59–67.) It is true that the
Board did not “unconditionally” excuse any alleged untimeliness. (ECF No. 19-1, Administrative
Record (AR) at 8.) It is also true, however, that notwithstanding any timeliness issue, the Board
nonetheless “elected to conduct a substantive review,” of the request and dismissed the application
on the merits, not due to untimeliness. (Id.)
Defendant argues that Plaintiff suffered no injury in fact, and therefore lacks Article III
standing. (Def. MTD/MSJ at 12.) See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)
(requiring for standing, inter alia, a judicially cognizable injury that is “concrete and particularized”
and “actual and imminent, not conjectural or hypothetical.”) The court agrees with Defendant;
neither the Complaint nor Plaintiff’s briefing claim that the failure to “unconditionally” excuse
alleged untimeliness injured Plaintiff in any way. (Compl. ¶¶ 59–67; Pl. MSJ at 27–28; ECF No. 17
(Pl. Reply).) To the contrary, because the Board reached the merits of Plaintiff’s request, any
failure to unconditionally excuse alleged untimeliness played no role in its decision to deny Plaintiff
the Purple Heart. Therefore, the court finds that even if the Board violated the APA by failing to
unconditionally excuse any alleged untimeliness, Plaintiff has no standing because he suffered no
judicially cognizable injury. Defendant’s motion to dismiss Count II will be granted.

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B. Counts I & III
Counts I and III allege that the Board’s denial of Plaintiff’s application for a Purple Heart
was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” in
violation of the APA. 5 U.S.C. § 706(2)(A). The Board “may correct any military record” when it
“considers it necessary to correct an error or remove an injustice.” 10 U.S.C. § 1552(a)(1). “The
applicant has the burden of proving an error or injustice by a preponderance of the evidence.” 32
C.F.R. § 581.3(e)(2). Here, the Board found that “there is no evidence in the available record, and
neither the applicant nor his counsel submitted sufficient evidence” indicating that Plaintiff qualifies
for a Purple Heart. (AR at 12.)
While it is a close case, the court finds that the Board’s conclusion was neither arbitrary nor
capricious. Pursuant to Army Regulation 600-8-22, a Purple Heart shall be awarded if the service
member was (1) wounded, injured, or killed in hostile action, terrorist attack, or friendly fire; (2) the
wound or injury required medical treatment; and (3) “the records of medical treatment . . . have
been made a matter of official Army records.” Army Reg. 600-8-22 §§ 2-8(c), 2-8(l)(3) (2019).
This case turns on the second element, that the injury “required” medical treatment. Army
Reg. 600-8-22 § 2-8(c). The term “treatment” is not all-encompassing. First, it must be “treatment,
not merely examination.” Id. The regulation also provides that “mandating rest periods, light duty,
or ‘down time’ and/or the administration of pain medication . . . in the absence of persistent
symptoms of impairment following concussive incidents do not constitute qualifying treatment for a
concussive injury.” Army Reg. 600-8-22 § 2-8(j)(2). The regulation also provides a nonexclusive
list of treatments that do not qualify as treatment:
(a) Referral to neurologist or neuropsychologist to treat the diagnosed mTBI or
concussion.
(b) Rehabilitation (such as occupational therapy, physical therapy, and so forth) to
treat the mTBI or concussion.
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(c) Restriction from full duty for a period of greater than 48 hours due to persistent
signs, symptoms, or physical finding of impaired brain function due to the mTBI
or concussion.
Army Reg. 600-8-22 §§ 2-8(j)(1)(a)–(c). The treatment must normally be rendered by a
“medical officer.” 1 Army Reg. 600-8-22 § 2-8(c). If, however, a medical officer was unavailable,
the Purple Heart may still be awarded if “a medical professional other than a medical officer”
provided the treatment and “a medical officer” states in writing that “the extent of the wounds were
such that they would have required treatment by a medical officer if one had been available.” Army
Reg. 600-8-22 § 2-8(c)(2).
As the Board correctly determined, Plaintiff’s evidence does not meet these requirements.
Plaintiff admits that he “did not seek medical attention at the time” from a medical officer or a
medical professional. (Pl. MSJ at 4–5.) Instead, he asserts that he meets the required treatment
element by virtue of a letter written over eight years after the incident by Dr. Robin J. DeLeon
stating that:
Under current medical protocols is [sic] would be expected that [applicant] be
removed from duty and immediately report to a medical facility for further
evalaution [sic] and treatment. He would not return to duty till cleared by medical
providers. The [Military Acute Concussion Evaluation] examination [sic],
however, did not exist on the battlefield in 2005.
(AR at 27; AR at 130.) Dr. DeLeon’s conclusion, though coming close to satisfying the
Army Regulation requirements, nonetheless falls short. He states that treatment would be
“expected,” but a Purple Heart can only be awarded if the wound or injury “required” treatment.
Army Reg. 600-8-22 § 2-8(c). The letter also does not specify what type of treatment, if required,
would have been given; but not all treatments qualify, and Plaintiff bears the burden of showing that
his injury required qualifying treatment. (AR at 130.) Finally, the regulation requires that the

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A medical officer is defined as a physician with officer rank. Army Reg. 600-8-22 § 2-8(c)(4).
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statement be from a medical officer, see Army Reg. 600-8-22 § 2-8(c), and though Dr. DeLeon was
once a medical officer, he was not one when he wrote the letter. (AR 78–80.) For these reasons,
Dr. DeLeon’s letter does not remedy the absence of actual required treatment by a medical officer,
and no other evidence in the record fills that essential gap. 2 Therefore, the Board’s decision to not
award a Purple Heart is supported by the record.
Moreover, though brief, the Board’s decision is “supported by reasoned decisionmaking,”
Haselwander, 774 F. 3d at 990, and, as required, responds to all of Plaintiff’s non-frivolous
arguments. Frizelle, 111 F.3d at 177. In reaching its conclusion, the Board properly framed
Plaintiff’s argument about the required treatment as follows: “The applicant states that although a
medical officer was not present at the time of the blast, his subsequent medical record does include
the required statements that the extent of his wounds was such that they would have required
treatment by a medical officer if one had been available to treat him.” (AR at 8.) The Board then
concluded, however, that neither the record nor Plaintiff’s submissions provided sufficient
evidence. The Board also cited to the provision specifying the required treatment level. Id. at 12
(citing Army Regulation 600-8-22 § 2-8 for the proposition that “limited duty following the incident
and pain medication to treat headaches” does not qualify as treatment for purposes of the Purple
Heart.) And, though the Board’s opinion did not specifically respond to Dr. DeLeon’s letter, it did
respond to the broader argument regarding the required treatment element. Id. That was sufficient
because the Board must respond to all non-frivolous arguments; not to every item of evidence.
Frizelle, 111 F.3d at 177.
While the Board’s reasoning could certainly be clearer and more thorough, this court must
evaluate its decision “under an unusually deferential application of the arbitrary or capricious
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Plaintiff cites to portions of the Administrative Record as evidence that treatment was or would
have been required. (Pl. MSJ at 33 (citing AR at 28; AR at 78; AR at 88).) While this evidence
describes his injury, it does not establish the required treatment element.
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standard of the [APA].” Cone v. Caldera, 223 F.3d 789, 793 (D.C. Cir. 2000) (quoting Kreis v.
Sec’y of Air Force, 866 F.2d 1508, 1514 (D.C. Cir. 1989) (internal quotation marks omitted). The
Board’s decision need only “minimally contain ‘a rational connection between the facts found and
the choice made.” Frizelle, 111 F.3d at 176. Under that standard, the court will uphold the Board’s
reasoning.
Plaintiff also argues that the Board’s decision was arbitrary and capricious because it
“fashioned a requirement nowhere found” in the controlling regulation, namely that substantiating
medical evidence “at the time or near the time of the incident must be provided.” (Pl. Reply at 1,
7.) Plaintiff is correct that the Board recited this requirement, and that it is not in the controlling
regulation. (See AR at 12; Army Reg. 600-8-22 § 2-8.) But Plaintiff omits the last portion of the
Board’s description of the requirement, which makes clear that the Board, at most, only applied that
temporal requirement to substantiation of the injury itself, not to the issue of whether treatment was
required. (Pl. Reply at 1; AR at 12.) The Board’s description states:
According to the applicable regulation, to qualify for an award of Purple Heart,
substantiating medical evidence at the time or near the time of the incident must be
provided to verify that the wound was the result of hostile action, the wound must
have required treatment by medical personnel, and the medical treatment must have
been made a matter of official record.”
(AR at 12.) Thus, even if the addition of “at the time” is improper, the full sentence
illustrates that the Board did not apply that language to the dispositive element: that “the wound
must have required treatment.” Id.
Plaintiff also argues that the Board applied the wrong evidentiary standard, pointing out—
correctly—that the proper standard is preponderance of the evidence, and that at one point, the
Board used the term “conclusive evidence.” (AR at 13.) Though the Board’s use of that term is
confusing and unhelpful, it was used in passing and does not purport to describe the evidentiary
standard that the Board actually applied. The Board specifically stated elsewhere that there was “no
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evidence” in the record to establish that the required treatment element was met. (AR at 12.) That
conclusion makes clear that the Board did not apply a hybrid standard of preponderance of evidence
and conclusive evidence; indeed it found no evidence. Id. “[A]n agency's decision [need not] be a
model of analytic precision to survive a challenge,” and a reviewing court will “uphold a decision of
less than ideal clarity if the agency’s path may reasonably be discerned.” Frizelle, 111 F. 3d at 176
(quoting Dickson v. Sec’y of Def., 68 F.3d 1396, 1404 (D.C. Cir. 1995) (internal quotation marks
omitted). Though the Board’s use of the word “conclusive” is not explained, its analysis supports
its conclusion, and for that reason its decision will be upheld.
Plaintiff also argues that the Board overlooked the fact that he lost consciousness. (Pl.
Reply at 9.) But loss of consciousness is only relevant to proving an eligible injury; it has no
bearing on whether Plaintiff’s injury required treatment. According to the regulation, if an
individual neither loses consciousness nor experiences impaired brain function for greater than 48
hours, then his “injury” does “not justify eligibility for the [Purple Heart].” Army Reg. 600-8-22 §
2-8(g). Plaintiff argues that because the Board highlighted the 48-hour rule without mentioning the
loss of consciousness component, it ignored the facts suggesting he lost his consciousness. (Pl.
Reply at 9.) Even if true, this portion of the regulation has nothing to do with the critical element of
required treatment. Army Reg. 600-8-22 § 2-8(g). It deals only with what does or does not
constitute a qualifying injury. Id. Therefore, the Board’s incomplete statement of this rule did not
undermine its finding that the required treatment element was not met.

III.

CONCLUSION

There is no doubt that Plaintiff was injured while serving his country. But based on the
evidence provided to the Board and to this court, the Board’s decision that Plaintiff did not meet the
specific requirements for a Purple Heart is supported by the record. Therefore, out of deference to
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the Army’s efforts to administer the Purple Heart award, and in accordance with Army Regulation
600-8-22, this court must uphold the Board’s decision. Defendant’s motion to dismiss Count II and
for summary judgment on Counts I and III will be granted, and Plaintiff’s Motion for Summary
Judgment will be denied. A corresponding order will be issued simultaneously.
Date: May 26, 2020

Tanya S. Chutkan

TANYA S. CHUTKAN
United States District Judge

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