Patel v. McHugh

Filing 46

ORDER granting 22 Motion for Summary Judgment. Plaintiff's motion for the same is denied re 38 Plaintiff's Countermotion for Summary Judgment. Signed by Judge B. Avant Edenfield on 3/11/2014. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MINAXI I. PATEL,
Plaintiff,
V

4: 12-cv-31 1

.

THE HONORABLE JOHN
MCHUGH,
Secretary of the Army,
Defendant.
ORDER
I.

INTRODUCTION

Plaintiff, Lieutenant Colonel Minaxi
Pate!, has filed this action seeking to correct
alleged errors in her Army record. Patel
alleges that she was denied procedural and
substantive safeguards as the Army
reprimanded her for creating a hostile work
environment in her dental clinic. She seeks
to overturn the adverse judgment of the
Army Board for the Correction of Military
Records ("ABCMR"). Because Plaintiff
does not meet the high standard necessary to
reverse the ABCMR's findings, the Court
GRANTS Defendant's Motion for Summary
Judgment, ECF No. 22, and DENIES
Plaintiff's Motion for Summary Judgment,
ECF No. 38.
II.

BACKGROUND

This case arises from Patel's allegedly
inappropriate statements made to
subordinates in 2008 and the Army's
subsequent investigation. Though Plaintiff
disputes the veracity of the allegations, both
parties agree that a member of Plaintiff's

medical unit alleged that Plaintiff had made
derogatory statements to subordinates based
on their race and sexual orientation. ECF
Nos. 19 at 7; 22-1 at 1-2.
Subsequently, the Commander of the
421st Multifunctional Medical Battalion
ordered an informal investigation into
Plaintiff's conduct pursuant to Army
Regulation 15-6 ("AR 15-6"). ECF No. 19
at 7. Based largely on the findings of the
AR 15-6 investigation, Brigadier General
Daniel B. Allyn administered a non-judicial
punishment under Article 15 of the Uniform
Code of Military Justice ("UCMJ"). ECF
Nos. 22-1 at 3; 38 at 4. Parties agree that
both the AR 15-6 investigation and
testimony of one witness undergirded
Id.
Plaintiff's Article 15 punishment.
Plaintiff was found guilty of violating
Article 92 of the UMCJ, because her alleged
use of disparaging terms violated a valid
Army Regulation, and of violating Article
133, because her creation of a hostile work
environment was conduct was unbecoming
an officer. Id
After her Article 15 hearing, Plaintiff
was issued a General Officer Memorandum
of Reprimand ("GOMR"), which was filed
in her Official Military Personnel File. ECF
Nos. 22-1 at 3-4, 38 at 4.
Plaintiff appealed her Article 15 and
GOMR to Maj. Gen. K. J. Glueck, Jr. He
set aside the Article 92 charge but left the
Article 133 charge intact. ECF Nos. 22-1 at
4; 38 at 4-5. She further submitted a
Request to Set Aside to BG Allyn
challenging the remainder of her Article 15
punishment, which was denied. ECF Nos.
22-1 at 4; 38 at 5.

"Summary judgment is appropriate when
the record evidence, including depositions,
sworn declarations, and other materials,
shows 'that there is no genuine dispute as to
any material fact and the movant is entitled
to judgment as a matter of law." Feliciano
v. City of Miami Beach, 707 F.3d 1244,
1247 (11th Cir. 2013) (quoting Fed. R. Civ.
All evidence and factual
P. 56(a)).
inferences, however, must be viewed "in the
light most favorable to the non-moving
party," and "all reasonable doubts" resolved
in his or her favor. Id. Nevertheless, should
the moving party meet its initial burden to
point out the absence of evidence supporting
an essential element on which the nonmoving party bears the burden of proof, the
non-moving party "must do more than
simply show that there is some metaphysical
doubt as to the material facts." Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986); Celotex Corp. v.
Catret!, 477 U.S. 317, 322 (1986).
Summary judgment is the appropriate
vehicle for courts to review agency
decisions. Fla. Fruit and Vegetable Assn v.
Brock, 771 F.2d 1455, 1459 (11th Cir.
1985).

On April 28, 2009, Plaintiff received an
adverse Officer Evaluation Report ("OER")
based on the prior investigation and hearing.
The board in charge of officer promotions
considered her OER, combined with her
Article 15 and GOMR, and removed her
name from consideration for promotion to
full Colonel. ECF Nos. 22-1 at 4-5; 38 at 5.
She appealed the various proceedings
and findings against her to the ABCMR.
ECF No. 19 at 8-12. Patel submitted an
initial set of filings, which the ABCMR
considered, and a subsequent set of filings,
which it may not have. See ECF Nos. 22-1
at 8; 38 at 19-20. The ABCMR ruled
against her—a final agency decision.'
Defendant moved this Court for
summary judgment, relying on the
deferential standard of review that the
federal courts employ in the administrative
context. ECF Nos. 22; 22-1. He further
argued that procedures provided Plaintiff
were not defective and that any
imperfections were not actionable as a
matter of law. See Id. Plaintiff responded
and filed a dueling motion for summary
judgment, alleging that procedures furnished
her at every stage of her investigation and
punishment were insufficient and that the
ABCMR erred in failing to consider the
entire record. ECF No. 38.

2. ABCMR Review Standard
The Administrative Procedure Act
("APA") allows district courts to review the
decisions of administrative agencies, 5
U.S.C. § 706, and ABCMR decisions follow
that same path of review. See Clinton v.
Goldsmith, 526 U.S. 529, 539 (1999). But
while the process for review may be the
same, the holistic standard of deference
afforded ABCMR decisions is not. Of
course, courts always afford some leeway to
agency expertise. See, e.g., Fields v. US.

III. ANALYSIS
A. Standard of Review
1. Summary Judgment Standard

See, e.g., Hardison v. Alexander, 655 F.2d 1281,
1288 (D.C. Cir. 1981) (noting plaintiff ABCMR
denied relief had "exhausted his administrative
remedies").

2

Motor Vehicle Mfgs, Ass 'n of US., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983). With these principles in mind,
the Court addresses Plaintiff's allegations.

Dep't of Labor Admin. Review Bd., 173 F.3d
811, 813 (11th Cir. 1999). Specifically, the
Court "does not reweigh the evidence or
substitute its judgment for that of the
[administrative review board], but reviews
the entire record to determine if the decision
reached is reasonable and supported by
substantial evidence." Id. at 814.

B. Plaintiff's
Wrongdoing

Allegations

of

Plaintiff enumerates errors that fall into
three broad categories. First, she claims that
the ABCMR did not consider all appropriate
evidence when making its decision. Second,
she states that it drew incorrect conclusions
from the evidence that it did consider and
otherwise violated its own procedures.
Third, she claims that the ABCMR violated
her Fifth Amendment Due Process rights.
The Court takes these arguments in turn.

That standard grows even more
deferential when pulled into the military's
ambit. "[M]ilitary administrators are
presumed to act lawfully and in good faith
like other public officers, and the military is
entitled to substantial deference in the
governance of its affairs." Dodson v. US.
Gov't, Dept of Army, 988 F.2d 1199, 1204
(Fed. Cir. 1993). Federal courts should be
hesitant to wade into the "complex subtle,
and professional decisions as to the
composition, training, equipping, and
control of a military force. . . ." Gilligan v.
Morgan, 413 U.S. 1, 10 (1973).

1. Failure to Consider Attachments
Plaintiff submitted additional evidence to
her ABCMR petition on November 30,
2011. ECF Nos. 38 at 9; 38-1 at 26-56.
She claims that the ABCMR did not review
that evidence, ECF No. 38 at 9, and that its
failure to do so renders its entire decision
arbitrary and capricious, Id
Defendant
apparently concedes that the ABCMR
ignored these exhibits. ECF No. 22-1 at 1920. He argues, however, that Plaintiff failed
to request reconsideration of the ABCMR's
ruling and that she did not properly describe
the contents of the attachments, making it
impossible to discover if the ABCMR
committed prejudicial error in failing to
consider them. Id.

But the deference is not limitless. The
district courts are entitled to review the
ABCMR and can "set aside [its decisions] if
they are arbitrary, capricious, or not based
on substantial evidence."
Chappell v.
Wallace, 462 U.S. 296, 303 (1983). A
decision is arbitrary and capricious where
the agency has relied on factors which
Congress has not intended it to
consider, entirely failed to consider an
important aspect of the problem,
offered an explanation for its decision
that runs counter to the evidence
before the agency, or is so implausible
that it could not be ascribed to a
difference in view or the product of
agency expertise.

The ABCMR must follow the APA's
mandates, including its mandate to consider
relevant evidence. Administrative judges
are generally under an obligation to consider
all relevant evidence, see, e.g., Nyberg v.
Comm 'r of Soc. Sec., 179 F. App'x 589,
3

that while Maj. Beilhardt believed that Patel
could be difficult to work for, she was not
guilty of the particular slurs attributed to her
and he had not directly witnessed any of
them. Id. The ABCMR had the benefit of
those views when it ruled, so the
unconsidered exhibit was duplicative. The
ABCMR therefore committed harmless error
in failing to consider Patel's November 30,
2011 submission, and this Court will not
reverse the ABCMR on those grounds.

591-92 (11th Cir. 2006), but federal courts
are entitled to find that such error was
harmless in some situations, US. Steel Corp.
v. US. E.P.A., 595 F.2d 207, 215 (5th Cir.
1979). Specifically, if the administrative
body fails to consider evidence that is
merely duplicative or that supported its
eventual finding, the error is harmless. See
Diorio v. Heckler, 721 F.2d 726, 728 (11th
Cir. 1983) (noting that failure to properly
categorize or consider evidence had not
altered final conclusion).

2. Allegedly Arbitrary and Capricious
Decisions

Here, Patel argues that the ABCMR
committed reversible error in failing to
consider "penned-in" alterations to her prior
filing, as well as two subsequent exhibits.
ECF No. 38 at 9 (referencing ECF No. 381). The pen alterations address only one
issue—that Patel incorrectly identified her
clinic's Officer in Charge ("OIC") in her
first filing. See ECF No. 38-1 at 35-36. The
first of her two proffered exhibits, Exhibit T,
further documents the actual chain of
command above Patel. Id. at 49-50. Patel's
brief does not explain why these alterations
would affect the ABCMR's analysis, nor
can this Court divine a reason. ECF No. 38
at 9.

Plaintiff contends that multiple aspects of
the Army's investigation and subsequent
actions violated the Army's own regulations
and principles of administrative law,
rendering the proceedings against her
arbitrary and capricious.
Investigation
a. AR
15-6
Improperly Conducted
Patel contends that her AR 15-6
investigation was improper, both because it
was an informal investigation and because
she was questioned before being advised of
her right to counsel. ECF No. 38 at 10-13.
Patel claims that Army Reg. 600-20,
Appendix D (which governs harassment
investigations), mandated that she receive a
formal investigation.
Id.
But that
Regulation only requires a formal
investigation in a specific scenario—when a
complainant has formally filed her
complaint in writing. ECF No. 38-3 at 4-5.
Neither the Amended Complaint nor
Plaintiff's Countermotion for Summary
Judgment allege that the complaints against
her were formally filed. ECF Nos. 19 at 7;
38 at 3 (noting an email was sent but

Patel's final exhibit, Exhibit "U," is a
series of emails from Patel's attorney that
includes correspondence with Maj. Mark
Bei!hardt, Patel's commanding officer. ECF
No. 38-1 at 51-56. However, those emails
merely restate elements of Beilhardt's sworn
statement that was included in the
administrative record and was examined by
the ABCMR. Compare ECF No. 38-1 at 5156, with ECF No. 45-4 at 59-60. Both
statements seem to stand for the proposition
4

Plaintiff attacks her AR 15-6
investigation because she attacks the
ABCMR ruling it contributed to. That
ABCMR panel had access to the record of
her AR 15-6 and has its own procedural
safeguards. See, e.g., Adkins v. United
States, 68 F.3d 1317, 1324-25 (Fed. Cir.
1995) (describing procedural restraints on
ABCMR under Army Regulations). Even if
the initial investigation included improper
evidence, the ABCMR's use of that
evidence was not reversible error under
Army Reg. 15-6, Section 2-3(c)(3)(c).

alleging no formal filing of complaint). In
the absence of the prerequisite facts needed
for a violation of Army Reg. 600-20, this
Court defers to the "presumption of
regularity" afforded ABCMR decisions.
E.g., Musengo v. White, 286 F.3d 535, 53940 (D.C. Cir. 2002).
Patel invokes the general text of Army
Reg. 15-6 to further her argument that a
formal investigation was required. But that
regulation makes clear that it defers to other
regulations' investigative requirements—
like those, for instance, contained in Army
Reg. 600-20, Appendix D. ECF No. 38-2 at
3 (listing factors to be considered in
providing formal or informal investigation
and in some cases deferring to "other
applicable regulations"). The Court does
not perceive a way in which Army Reg. 156 would nullify Army Reg. 600-20's
procedures or modulate its voice.
Accordingly, Patel's subjection to an
informal investigation was not error, and the
ABCMR did not err in refusing to modify it.

b. Different Burdens of Proof in
AR 15-6 and Article 15
Plaintiff further argues that any evidence
adduced in an AR 15-6 evidence could not
support an Article 15 because an Article 15
conviction requires proof beyond a
reasonable doubt, and the AR 15-6
investigation only requires a preponderance
of the evidence. ECF No. 38 at 13-14.
This argument lacks merit. The record
contains no evidence that the Article 15
tribunal deployed an incorrect burden of
proof; in fact, it explicitly acknowledged
that it was not authorized to impose
punishment unless it was "convinced
beyond a reasonable doubt that [Plaintiff]
committed the offense(s)." ECF No. 30-2 at
30. Plaintiff provides no authority
supporting her contention that evidence
gathered under a preponderance of the
evidence standard must be categorically
excluded from a subsequent hearing with a
higher burden of proof. In the absence of
any evidence that the Article 15 tribunal
applied an incorrect standard of proof,
neither the ABCMR nor this Court should

Patel further argues that because she was
not informed of her right to counsel at the
15-6 investigation's outset, that
investigation was fatally flawed. She argues
that any subsequent action relying on that
investigation—like her Article 15—is
therefore invalid. ECF No. 38 at 10. But
Army Reg. 15-6 allows other tribunals to
consider evidence that was obtained despite
a substantial error. ECF No. 38-2 at 4
("However, evidence considered by the
investigation or board may be used in
connection with any action under the
Uniform Code of Military Justice (UCMJ)..
or any other directive that contains its own
procedural safeguards.").
5

S

arbitrarily overturn its findings.
Musengo, 286 F.3d at 539-40.
c. Insufficient
Presented

See

Evidence

Patel alleges that the evidence at her
Article 15 proceeding was facially
insufficient to support a finding of guilt.
ECF No. 38 at 14-16. Defendant contends
that sufficient evidence was presented to
support the tribunal's finding. ECF Nos. 221 at 16; 44 at 10-13.
Though this Court may set aside the
ABCMR's ruling if it is "arbitrary,
capricious, or not based on substantial
evidence," Chappell, 462 U.S. at 303, it
must not "reweigh the evidence or substitute
[its] judgment for that of the [Board] . . .
Cornelius v. Sullivan, 936 F.2d 1143, 1145
(11th Cir. 1991). It is not enough that the
ABCMR reached a result that this Court
would not have reached. See, e.g., Epstein
v. Geren, 539 F. Supp. 2d 267, 275 (D.D.C.
2008).
Patel vigorously objects to the Article 15
tribunal relying on evidence gathered in the
AR 15-6 informal investigation. The Court
addressed those arguments above. If the
Court disagrees with her as to the propriety
of admitting the AR 15-6 evidence, all that
is left is her contention that the Article 15
tribunal (and subsequently the ABCMR)
mis-weighed her evidence. ECF No. 38 at
14-16. She says witnesses' biases and
inconsistencies in their statements "cast[]
doubt" on the veracity of those statements,
and that given that doubt, the Army did not
prove her guilt beyond a reasonable doubt.
Id

The Court notes that it might well have
agreed with Patel if it were tasked with
conducting a first-look review of the
evidence. See, e.g., ECF No. 30-2 at 39-56
(series of generally positive evaluations of
Pate!). But its role is only to decide if the
ABCMR erred when it conducted its own
review of the prior proceedings. The record
shows that the ABCMR had the benefit of
witness testimony from the Article 15
hearing, ECF No. 31-1 at 42, that it
examined sworn statements, ECF No. 30-1
at 60, and that statements in the record did
support a conclusion that Patel created a
hostile work environment, see, e.g., ECF
No. 30-2 at 1,6-7, 9, 11-12. The Article 15
tribunal, and the ABCMR, weighed this
evidence and reached the same conclusion.
The Court cannot find that conclusion was
unsupported, arbitrary, or capricious.
d. Article 133 Cannot Stand If
Article 92 Falls
Plaintiff's Article 15 panel found her
guilty of violating both Article 91 (failing to
obey a lawful general regulation) and Article
133 (conduct unbecoming an officer). ECF
No. 30-1 at 22-23. On appeal, MG Glueck
set aside the Article 92 charge. Id. Plaintiff
argues that because these two charges were
based on the same underlying conduct, the
Article 133 charge cannot remain if the
Article 92 charge was stricken. ECF No. 38
at 17. She further argues that even if the
Article 133 charge could remain, the Article
92 charge should have been stricken from
her GOMR. Id.
Defendant cites the ABCMR, which
inferred that MG Glueck set aside the
Article 92 charge as multiplicitous, rather

C

e.g., Schaefer v. Geren, 607 F. Supp. 2d 61,
70 (D.D.C. 2009) (deferring to ABCMR's
regulatory expertise in interpreting difficult
issues inherent in procedurally intertwined
charges).

than finding it was unsupported by evidence.
ECF No. 44 at 12. He further alleges that
Plaintiff did not raise this issue in her
Amended Complaint and that the Court
should not consider it on summary
judgment. Id. As a threshold matter, the
Court notes that Plaintiff did sufficiently
raise the issue in her Amended Complaint.
ECF No. 19 at 12.

The copy of Plaintiff's GOMR included
in the record does not reference either her
Article 92 or her Article 133 charges; rather,
it describes in general terms the underlying
behavior of which she was accused. ECF
No. 30-2 at 32. Even if the language in the
first paragraph mirrors language present in
Article 92, MG Glueck never set aside the
factual underpinnings of that charge, only
the consequences of that charge. ECF No.
32-2 at 21. The Court knows of no authority
forcing the ABCMR to amend the GOMR's
language simply because MG Glueck chose
not to subject Patel to the legal
consequences of both charges.

MG Glueck's appeal decision states that
"[t]he Art 92 charge, failure to
obey a lawful general regulation is set
aside. However, the art 133 charge,
Conduct Unbecoming an Officer and
Gentleman will remain in effect. The
written reprimand punishment
imposed is both just and proportionate
to the Art 133 charge."
ECF No. 32-2 at 21. It appears then, at
least, that the Maj. Gen. was aware of both
charges, understood the factual similarities
between them, and decided that sustaining
the Article 133 charge was appropriate. The
ABCMR's finding that "the appellate
authority appears to have found the charges
multiplicitious because they both involved
the same misconduct by the applicant" is not
clearly erroneous. 2 Further, Plaintiff has not
provided, and the Court has not located, any
authority that states that the setting aside of
one charge procedurally demands the setting
aside of another similar charge in the UCMJ
context. Speculation is not enough to set
aside the presumption of regularity.
See,

e. ABCMR
should
removed OER

have

Plaintiff contends that there were
numerous procedural defects that led to her
adverse Officer Evaluation Report. ECF
No. 38 at 18-21. Specifically, she contends
that she did not receive a copy of her rating
chain, that her raters were inadequately
informed, that she did not receive support
throughout the process, that the raters did
not take adequate steps to gather a complete
picture of her situation, and that the Senior
Rater erroneously described her AR 15-6
investigation as "formal." Id at 20. She
articulated these objections to the ABCMR,
which concluded that the defects were
harmless error. ECF No. 30-1 at 23.
Defendants echo the ABCMR and

2

At least in the criminal context, military officials are
often asked to determine if charges are multiplicitous
and adjust them appropriately. See, e.g., United
States v. Walker, 26 M.J. 886, 890 n. 8 (A.F. Ct.
Crim. App. 1988); United States v. Huff, 22 C.M.R.
37,39(1956).

7

Q

have
should
f. ABCMR
reinstated spot on promotion
list

emphasize this Court's deference to
ABCMR findings. ECF No. 44 at 13-16.
The Army is required to "abide by its
own procedural regulations should it choose
to promulgate them," Lindsay v. United
States, 295 F.3d 1252, 1257 (Fed. Cir.
2002), but a reviewing court should look to
whether the agency misstep in question
"violated not only the letter but also the
principle behind [the regulation]," Id at
1259. See also Guy v. United States, 221 Ct.
Cl. 427, 433-34 (1979) (evidence of possible
bias insufficient to reverse OER when
record showed OER to be factually
accurate); but see Frizelle v. Slater, 111 F.3d
172, 177 (D.C. Cir. 1997) (holding review
board's decision arbitrary because it did not
adequately respond to procedural argument).

Plaintiff contends that when the
Promotion Review Board relied on the AR
15-6 investigation, Article 15 tribunal, and
OER to remove Patel from its "promote to
Colonel" list, it "relied upon the fruit of the
poisonous tree . . . ." ECF No. 38 at 22.
This Court has concluded that fruit was not
poisonous. Because Plaintiff's only reason
for reinstating her promotion rests squarely
on contentions of error that this Court has
rejected, the claim fails.
3. Due Process Denial
Patel alleges that she was denied Due
Process in violation of the Fifth
Amendment. ECF No. 38 at 22-23. A
plaintiff must assert that the government has
deprived them of a liberty or a property
interest to invoke the Constitution's
guarantees of due process. Matthews v.
Eldridge, 424 U.S. 319, 332 (1976). But
there is "no protected property interest in
continued military service."
See, e. g.,
Wilhelm v. Caldera, 90 F. Supp. 2d 3, 8
(D.D.C. 2000).

This is a close case, but the Plaintiff has
not established that the errors she
enumerates in the OER process caused her
adverse effect. The OER relied on existing
information—namely, that gathered in the
course of the AR 15-6 investigation. ECF
No. 32-1 at 40-41. It depended only on
factual findings that were sustained by the
ABCMR and that concurred with those
found in the earlier proceedings against
Patel. Id Plaintiff has not presented the
kind of evidence that would establish a
nexus between the alleged OER procedural
errors and its ultimate findings, nor any
evidence that the Board would have
disregarded the AR 15-6 investigation.
Therefore, even if procedural errors did exist
in the OER's promulgation, this Court
cannot conclude that the ABCMR was
arbitrary or capricious in finding that the
OER was not "factually or materially
defective.
ECF No. 30-1 at 23.
..

Patel's cited authority is not controlling.
In Antonuk v. United States, a reservist
challenged the process by which the Army
activated him. 445 F.2d 592, 593-94 (6th
Cir. 1971). He was thus deprived of a
liberty interest (freely living a civilian life)
in a way that Patel was not. Plaintiff
therefore fails to establish the prerequisite
liberty or property interest for any due
process claim.

."

8

Moreover, the Court has concluded that
the process afforded Plaintiff complied with
internal Army regulations. See Chamness v.
McHugh, 814 F. Supp. 2d 7, 16 (D.D.C.
2011) affd 528 F. Appx 996 (Fed. Cir.
2013) (finding no Due Process violation
when procedures were followed). Her Due
Process claim fails.
IV. CONCLUSION
Lieutenant Colonel Patel's record paints
a picture of an officer whose generally
stellar career was apparently marred by a
few acts of misconduct. Her arguments are
at their most compelling when she says
simply that the ABCMR gave weight to the
wrong evidence. Indeed, the Court's firstlook examination of that evidence might
well have been different than the ABCMR's.
But that is not the Court's role here. It
must determine if the ABCMR was arbitrary
and capricious, or if it tolerated a violation
of Plaintiff's constitutional rights. Given the
evidence in the record, the Court cannot
conclude that it did. Accordingly,
Defendant's motion for summary judgment
is GRANTED. Plaintiffs motion for the
same is DENIED.

This / ' day of March 2014.

Gfr'

LD,
BL
UNITED STATES DISTRPUT COURT
SOUTHERN DISTRICT OF GEORGIA