Claiborne v. McHugh
Filing
54
Opinion and Order. The Court DENIES Plaintiff's Amended Motion (# 48 ) for Limited Discovery and to Supplement the Administrative Record. IT IS SO ORDERED. Signed on 6/14/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAMON J. CLAIBORNE,
Plaintiff,
v.
SECRETARY OF THE ARMY,
Defendant.
LISA D. WRIGHT
P.O. Box 13
Salem, OR 97308
(503) 589-1817
JOHN N. MAHER
17101 71st Street
Tinley Park, IL 60477
(312) 804-991
Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
JAMES E. COX, JR.
Assistant United States Attorney
1000 S.W. Third Avenue
Suite 600
Portland, OR 97204
(503) 727-1000
Attorneys for Defendant
1 - OPINION AND ORDER
3:15-cv-01192-BR
OPINION AND ORDER
BROWN, Senior Judge.
This matter comes before the Court on Plaintiff’s Amended
Motion (#48) for Limited Discovery and to Supplement the
Administrative Record.
For the reasons that follow, the Court
DENIES Plaintiff’s Motion.
BACKGROUND
The following facts are taken from Plaintiff’s Amended
Complaint and the parties’ filings related to Plaintiff’s Amended
Motion for Limited Discovery, including the materials filed by
the parties related to Plaintiff’s Motion for Temporary
Restraining Order that are incorporated by reference in the
record currently before the Court.
The following facts are
undisputed unless otherwise noted.
Plaintiff Damon J. Claiborne was a Staff Sergeant (SSG) on
active duty in the United States Army currently assigned to Joint
Base Lewis-McChord (JBLM), Washington.
On November 12, 2004, Plaintiff was charged in Kitsap
County, Washington, with one count of Child Molestation in the
Second Degree.
Plaintiff submitted an Alford plea and was
sentenced to 15-months imprisonment.
Plaintiff’s status with the
Army was changed from “present for duty” to “civilian
confinement” from October 28, 2004, to January 5, 2006.
On January 6, 2006, Plaintiff’s status was changed to
2 - OPINION AND ORDER
“present for duty,” and Plaintiff reported to his unit.
As a
result of the state-court conviction, the Army initiated
involuntary separation proceedings against Plaintiff on February
9, 2006, under the provisions of Army Regulation 635-200, chapter
14-5, Active Duty Enlisted Administrative Separations, ¶ 14-5,
Conviction by Civil Court.
On May 10, 2006, the Acting Commander, I Corps and Fort
Lewis, reviewed the recommendation to discharge Plaintiff
pursuant to Army Regulation 635-200.
The Acting Commander
suspended execution of the discharge for 12 months pursuant to
Army Regulation 635-200, ¶ 1-18.
At some point the suspended discharge was cancelled after
Plaintiff’s successful completion of the probation period
pursuant to Army Regulation 635-200, ¶ 1-18b, and Plaintiff was
retained by the Army.
On June 25, 2008, Plaintiff reenlisted in the Army for a
period of four years.
On October 1, 2010, Plaintiff reenlisted
again for a period of five years.
On March 25, 2011, Plaintiff was determined to be eligible
under the Military Retirement Reform Act to elect either a
one-time career status bonus and remain under the REDUX retired
pay system or to retire under the “High-3" retirement system.
Plaintiff elected the one-time career status bonus, which
required Plaintiff to agree to stay in the Army until he had a
3 - OPINION AND ORDER
minimum of 20 years active service.
On November 7, 2013, the Secretary of the Army issued Army
Directive 2013-21, which provided in pertinent part:
Commanders will initiate the administrative
separation of any Soldier convicted of a sex
offense . . . whose conviction did not result in a
punitive discharge or dismissal. This policy
applies to all personnel currently in the Army,
regardless of when the conviction for a sex
offense occurred and regardless of component of
membership and current status in that component.
Army Directive 2013-21(3).
At some point Plaintiff requested voluntary retirement from
the Army “upon completion of 20 years of active Federal service.”
AR00013.1
On January 6, 2014, Plaintiff’s request for retirement was
approved.
Army Installation Management Command Orders released
Plaintiff from active duty effective January 31, 2015, and placed
him on the Retired List effective February 1, 2015.
AR000014.
On February 10, 2014, however, Plaintiff was notified by the
Chief, Criminal Law Division, Headquarters, I Corps, that in
Administrative Directive 2013-21 the Secretary of the Army
“directed initiation of separation proceedings of all Soldiers
convicted of a sex offense if the conviction did not result in a
punitive discharge or dismissal, regardless of when the
1
Citations to the transcript of record filed by the
Secretary of the Army on February 20, 2018, are referred to as
"AR."
4 - OPINION AND ORDER
conviction occurred.”
AR000014.
The Chief also advised
Plaintiff that “if an enlisted Soldier who has been convicted of
a sex offense has already been subject to administrative
separation action, the separation authority will initiate
separation action under Secretarial plenary authority as
described in Army Regulation 635-200, paragraph 5-3.”
AR000014.
On February 20, 2014, Plaintiff was advised by his Company
Commander that she was initiating a “flag” for involuntary
separation effective on that date.
TROAR003-04.2
On
February 20, 2014, Plaintiff signed a Developmental Counseling
Form and initialed that he agreed with the information.
TROAR004.
On July 16, 2014, Plaintiff was notified via memo by his
Company Commander, Chris Kim, that Kim was initiating involuntary
separation under Army Regulation 635-200, Chapter 5-3, pursuant
to the Secretary of the Army’s plenary authority.
TROAR005-08.
The notification
(1)
informed Plaintiff that the reason for the separation
was his January 3, 2005, conviction for child
molestation in the second degree in Kitsap County,
(2)
indicated Kim’s recommendation would be submitted to
2
Citations to the transcript of record filed by the
Secretary of the Army on July 6, 2015, in relation to Plaintiff’s
Motion for Temporary Restraining Order are referred to as
"TROAR."
5 - OPINION AND ORDER
the Secretary of the Army to make the final decision on
the matter, and
(3)
informed Plaintiff that he had the right to consult
with counsel and the right to submit statements on his
behalf.
On July 18, 2014, Plaintiff met with a military attorney and
elected to submit a statement on his behalf to be forwarded to
the decisional authority.
TROAR013-14.
On July 20, 2014, Plaintiff submitted a Request for
Retirement in Lieu of Chapter 5-3 Proceedings and a Letter of
Intent to his Command.
TROAR015-16.
In an undated memorandum Kim considered the separation
action and recommended retention.
TROAR010-12.
In an undated memorandum Plaintiff’s Battalion Commander
considered the separation action and recommended retention as
well as characterization of Plaintiff’s service as Honorable and
“General under honorable conditions.”
TROAR017-18.
In an undated memorandum Plaintiff’s Brigade Commander
considered the separation action and recommended Plaintiff “be
. . . separated from the Army prior to the expiration of his
current term of service” and his service “be characterized as
. . . General under honorable conditions.”
TROAR019.
On August 27, 2014, the Commanding General, I Corps,
considered the separation action and recommended Plaintiff “be
6 - OPINION AND ORDER
. . . separated from the Army prior to the expiration of his
current term of service” and his service “be characterized as
. . . General under honorable conditions.”
TROAR020.
On November 25, 2014, the Chief, Enlisted Retirements and
Separations, U.S. Army Human Resources Command, suspended
Plaintiff’s approved retirement and “revoked or rescinded as
appropriate” Plaintiff’s retirement orders noting “[t]he approved
retirement will remain in effect.”
TROAR70.
On June 16, 2015, the Assistant Secretary of the Army
(Manpower and Reserve Affairs) Debra S. Wada found separation of
Plaintiff “is clearly in the best interest of the Army in
accordance with Army Regulation 635-200, paragraph 5-3.”
TROAR072.
Wada directed Plaintiff “be separated with a General
(Under Honorable Conditions) characterization of service.”
TROAR072.
On June 24, 2015, the Directorate of Human Resources,
Military Personnel Division, JBLM, published orders directing
Plaintiff’s discharge on July 1, 2015.
TROAR073.
On June 28, 2015, Plaintiff filed a Complaint in this Court
seeking an order enjoining the Army from continuing his
separation, setting aside the Army’s decision, compelling the
Army to transfer him to the retired list with an effective date
to be determined, and seeking a number of declarations about the
Secretary of the Army’s authority under various Army regulations.
7 - OPINION AND ORDER
On June 29, 2015, Plaintiff filed a Temporary Restraining
Order seeking an order preventing Defendant from separating
Plaintiff from the Army.
On June 30, 2015, the Court heard oral argument on
Plaintiff’s Motion for Temporary Restraining Order; granted the
Temporary Restraining Order through July 8, 2015; and directed
the parties to file a Joint Status Report that addressed venue,
contained agreed background facts, and included any further
argument about likelihood of success on the merits.
On June 30, 2015, the Directorate of Human Resources,
Military Personnel Division, JBLM, amended Plaintiff’s discharge
order to reflect a discharge date of July 9, 2015.
On July 8, 2015, the Court heard further oral argument on
Plaintiff’s Motion for Temporary Restraining Order.
The Court
concluded Plaintiff did not establish a sufficient likelihood of
success on the merits, that he was likely to suffer irreparable
harm in the absence of continued injunctive relief, or that the
balance of equities tipped sufficiently in Plaintiff’s favor.
The Court also held Plaintiff was required to exhaust his
administrative remedies and failed to establish that he had done
so.
The Court, therefore, allowed the Temporary Restraining
Order to lapse.
On August 7, 2015, the parties filed a Joint Status Report
in which they requested the Court to stay this matter while
8 - OPINION AND ORDER
Plaintiff pursued his administrative remedies.
On August 10, 2015, the Court stayed this matter pending
Plaintiff’s pursuit of his administrative remedies.
On October 20, 2015, Plaintiff filed an appeal of Assistant
Secretary of the Army Wada’s June 16, 2015, decision to the Army
Discharge Review Board (ADRB).
In his appeal Plaintiff
“request[ed] an upgrade of [Plaintiff’s] general, under honorable
conditions discharge to honorable and change the narrative reason
[for his separation from Secretarial authority] to retirement.”
AR000020, AR000301.
On April 27, 2016, the ADRB “determined the applicant’s
characterization was improper.”
AR000301.
The ADBR, therefore,
“voted to grant full relief in the form of an upgrade of
characterization of service to honorable.
However, the [ADRB]
determined that the reason for discharge was proper and equitable
and voted not to change it.”
AR000301.
Specifically, the ADBR
noted “the information available for review . . . revealed no
medical or behavioral health conditions which could be seen as
mitigating for the misconduct, child molestation.”
AR000301.
On February 28, 2017, Plaintiff filed an application for
administrative review of the decision of the ADRB with the Army
Board for Correction of Military Records (ABCMR).
On September 2017, the ABCMR denied Plaintiff’s application
for administrative review.
9 - OPINION AND ORDER
On December 6, 2017, the parties filed a Joint Motion to
Lift Stay.
On December 7, 2017, the Court granted the parties’ Motion
and issued an Order lifting the stay in this matter.
On January 29, 2018, Plaintiff filed an Amended Complaint
seeking review of the Army’s decision pursuant to the
Administrative Procedures Act, 5 U.S.C. § 702, and a writ of
mandamus pursuant to 28 U.S.C. § 1361.
Plaintiff requests the
Court to compel the Army to transfer him to the retired list with
an effective date to be determined and to issue any other legal
or equitable relief that the Court deems proper.
On March 19, 2018, Plaintiff filed a Motion (#47) for
Limited Discovery and to Supplement the Administrative Record.
On March 30, 2018, Plaintiff filed an Amended Motion (#48) for
Limited Discovery and to Supplement the Administrative Record.
The Court took Plaintiff’s Amended Motion under advisement on
April 30, 2018.
DISCUSSION
In his Amended Motion Plaintiff seeks an order requiring
Defendant to produce four Army witnesses for deposition:
Debra
Wada, Assistant Secretary of the Army (Manpower and Reserve
Affairs); Julian Edmonson, Deputy Chief-of-Staff for the Army’s
G-1 (Personnel); Colonel Michael Miller; and Dennis Dingle,
10 - OPINION AND ORDER
Director, ABCMR.
Plaintiff also seeks an order requiring
Defendant to supplement the administrative record to include
various email messages, written correspondence, and “any other
correspondence regarding the Army’s decision to separate”
Plaintiff.
As to his second request, Plaintiff references a
letter that counsel sent to the Army in January 2018 in which
counsel sought 15 separate categories of correspondence,
documents, and authorities.
Defendant opposes Plaintiff’s Amended Motion on the grounds
that judicial review under the Administrative Procedures Act
(APA), 5 U.S.C. § 706, is limited to the administrative record
before the agency at the time of the decision, and Plaintiff has
not satisfied any of the limited exceptions that would permit him
to supplement the record.
The APA provides in pertinent part:
[A] reviewing court shall * * *
(2) hold unlawful and set aside agency action,
findings, and conclusions found to be-(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance
with law;
(B) contrary to constitutional right, power,
privilege, or immunity;
(C) in excess of statutory jurisdiction,
authority, or limitations, or short of
statutory right;
11 - OPINION AND ORDER
(D) without observance of procedure required
by law;
(E) unsupported by substantial evidence in a
case subject to sections 556 and 557 of this
title or otherwise reviewed on the record of
an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent
that the facts are subject to trial de novo
by the reviewing court.
In making the foregoing determinations, the court
shall review the whole record or those parts of it
cited by a party.
5 U.S.C. § 706.
“Judicial review of an agency decision typically focuses on
the administrative record in existence at the time of the
decision and does not encompass any part of the record that is
made initially in the reviewing court.”
S.W. Ctr. for Biological
Diversity v. U.S. Forest Svc., 100 F.3d 1443, 1450 (9th Cir.
1996)(citing Camp v. Pitts, 411 U.S. 138, 142 (1973)).
The Ninth
Circuit, however, has held “[r]eview may . . . be expanded beyond
the record if necessary to explain agency decisions.”
S.W. Ctr.
for Biological Diversity, 100 F.3d at 1450 (citing Animal Defense
Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988)).
Specifically, a reviewing court may only consider “extra-record
materials” under four narrow exceptions:
(1) if necessary to determine “whether the agency
has considered all relevant factors and has
explained its decision,” (2) “when the agency has
relied on documents not in the record,” or
(3) “when supplementing the record is necessary to
explain technical terms or complex subject matter”
12 - OPINION AND ORDER
[or (4)] “when plaintiffs make a showing of agency
bad faith.”
S.W. Ctr. for Biological Diversity, 100 F.3d at 1450 (quoting
Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 703-04
(9th Cir. 1996)), and National Audubon Soc. v. U.S. Forest Serv.,
46 F.3d 1437, 1447 n.9 (9th Cir. 1993)).
See also Cachil Dehe
Band of Wintun Indians v. Zinke, 889 F.3d 584, 600 (9th Cir.
2018)(same).
Plaintiff asserts the Court should permit further discovery
and allow Plaintiff to supplement the record in this case because
it is necessary to determine whether the Army considered all
relevant factors and has adequately explained its decision and/or
whether the Army relied on documents that are not in the
administrative records in reaching its decision.
Plaintiff,
however, only relies on his own allegations to support his
request.
Specifically, Plaintiff asserts “[t]here are clearly
documents, or at least conversations, that are not reflected in
the administrative record, and which led to the Army’s decision.”
Plaintiff notes the Army investigated Plaintiff’s conduct “over
ten years ago” and decided to retain him, and then later the Army
reversed its decision.
According to Plaintiff, “[i]t stands to
reason that there is some actor, additional information, or other
communications behind the Army’s decision to reverse its
[decision]. . . .
Yet there is nothing in the administrative
record that reflects who actually was involved, and when and why
13 - OPINION AND ORDER
the ultimate decision was made.”
Plaintiff’s assertions are belied by the existing record,
which reflects Army Directive 2013-21 issued in 2013 changed the
landscape of the Army’s decisions with respect to retention of
individuals convicted of sex crimes.
In fact, Plaintiff alleges
in his Amended Complaint that the Army’s separation decision was
based on Army Directive 2013-21.
The record reflects Plaintiff’s
separation decision went up through his chain of command with
recommendations at each level until a final decision approving
the separation was rendered by Assistant Secretary of the Army
Wada.
AR 330-339.
The record also contains a 30-page decision
reciting facts, authority, and analysis by the ABCMR related to
the decisionmaking process involved in Plaintiff’s separation.
Plaintiff’s arguments as to the sufficiency of the record,
however, relate to the weight of the evidence rather than
establishing a lack of evidence.
As to Plaintiff’s assertion that the record is incomplete
because it does not contain certain emails and letters that his
attorney sent to various Army representatives after the ABCMR
reached its decision, the Ninth Circuit has repeatedly made clear
that “‘exceptions to the normal rule regarding consideration of
extra-record materials only apply to information available at the
time, not post-decisional information.’”
Cachil Dehe, 889 F.3d
at 600 (quoting Tri-Valley CAREs v. U.S. Dep’t of Energy, 671
14 - OPINION AND ORDER
F.3d 1113, 1130 (9th Cir. 2012)).
Finally, 42 C.F.R. § 137.309 makes clear that “civil
discovery [is] not permitted in APA proceedings.”
Courts have
held when a court reviews agency actions under the APA, “the
standard discovery tools of civil litigation— including
depositions, interrogatories, and, germane here, wide-ranging
document production of materials that may potentially lead to
admissible evidence—do not apply.”
Comprehensive Cmty. Dev.
Corp. v. Sebelius, 890 F. Supp. 2d 305, 312 (S.D.N.Y. 2012).
See also Bark v. Northrop, 2 F. Supp. 2d 1147, 1152 (D. Or. 2014)
(same).
In fact, district courts have granted motions for
protective orders prohibiting discovery in APA proceedings.
For
example, in Sierra Club v. U.S. Dep't of Energy the plaintiffs
alleged the defendants had unlawfully failed to comply with NEPA.
26 F. Supp. 2d 1268, 1272 (D. Colo. 1998).
The plaintiffs
propounded interrogatories and requests for production of
documents to the defendant, and the court concluded limited
discovery was not warranted because the plaintiff failed to
establish that the court could not determine whether the
defendants' actions were arbitrary and capricious based on the
administrative record.
Id. at 1271.
See also Int'l Jr. Coll. of
Bus. & Tech., Inc. v. Duncan, 937 F. Supp. 2d 202, 206 (D.P.R.
2012)(concluding plaintiffs' argument that the administrative
record did not fully explain the agency's reasoning with regard
15 - OPINION AND ORDER
to the challenged actions did not entitle plaintiffs to engage in
fact-finding and noting “the narrowness of the APA action for
judicial review weighs heavily against discovery.”).
In summary, Plaintiff fails to establish any of the narrow
exceptions to the general rule apply that would permit this Court
to consider extra-record materials.
In addition, the Court
concludes the administrative record in this matter is
sufficiently developed for the Court to evaluate adequately
whether Defendant’s decision violated the APA or supports a writ
of mandamus.
The Court, therefore, denies Plaintiff’s Amended
Motion for Limited Discovery and to Supplement the Administrative
Record.
CONCLUSION
For these reasons, the Court DENIES Plaintiff’s Amended
Motion (#48) for Limited Discovery and to Supplement the
Administrative Record.
IT IS SO ORDERED.
DATED this 14th day of June, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
16 - OPINION AND ORDER
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