Trent M. COBURN, Appellant v. Patrick J. MURPHY, Honorable, Acting Secretary of the Army, Appellee.
No. 15-5009
United States Court of Appeals, District of Columbia Circuit.
Argued February 4, 2016. Decided July 8, 2016
827 F.3d 1122
Under the Supreme Court‘s articulation of the plain error standard in Molina-Martinez, Burnett therefore has shown plain error. He must be resentenced.
* * *
We affirm the judgments of conviction and sentence in all respects, except that we vacate Burnett‘s sentence and remand for the District Court to resentence Burnett.
So ordered.
Raymond J. Toney, Astoria, NY, argued the cause and filed the briefs for appellant.
Derrick W. Grace, Special Assistant U.S. Attorney, argued the cause for appellee. With him on the brief was R. Craig Lawrence, Assistant U.S. Attorney.
Before: HENDERSON,* BROWN, and PILLARD, Circuit Judges.
BROWN, Circuit Judge:
This case returns following our first decision in Coburn v. McHugh, 679 F.3d 924 (D.C. Cir. 2012) (Coburn I). In that case we remanded to the Army Board for Correction of Military Records (ABCMR) so the ABCMR could provide a reasoned explanation (if possible) for several questions we could not resolve. On remand, the parties have largely resolved these questions, but for one, over which a significant dis-
I
Because our opinion in Coburn I explains the facts of this case in detail, we will repeat here only the facts necessary to understand this appeal.
In 2000, Coburn tested positive for marijuana use in a urine test. Although Coburn pled not guilty in non-judicial proceedings related to the test, he was found guilty and received a negative non-commissioned officer evaluation report based on the offense. Coburn challenged these results but was not successful, and in 2001, the Army informed Coburn he had been denied continued Army service.
In early 2002, prior to his separation from the Army, Coburn contacted his primary care physician, Dr. Mario Caycedo of the United States Army Medical Corps, seeking an evaluation of his ongoing back pain and requesting that Dr. Caycedo initiate a Medical Evaluation Board (MEB) to determine whether he was suitable for a medical discharge. See
During this time, the Army tried to effect Coburn‘s administrative separation, but because MEB proceedings generally take precedence over other types of discharges, Coburn could not be separated until the MEB was no longer ongoing. In October 2002, Dr. Caycedo reviewed Coburn‘s file, including the latest specialist assessments. He also consulted with Colonel Wayne Schirner, another Army physician who also reviewed Coburn‘s file. Dr. Caycedo concluded that Coburn‘s MEB processing should be terminated, and Colonel Schirner agreed. Dr. Caycedo later supplied the following four reasons for terminating the MEB: (1) “Mr. Coburn had declined the option for surgery that could potentially correct his back pain, thus, I concluded that he was not experiencing continual debilitating pain which he had described initially;” (2) “In his several visits to the clinics, Mr. Coburn did not appear to be in great discomfort, and he was able to perform his assigned duties;” (3) “Both the rheumatology and pulmonary clinics examined Mr. Coburn and determined that he required no physical limitations with regards to his pulmonary effusion and the condition had resolved;” (4) “Mr. Coburn had raised no new medical complaints over the past six months.” J.A. 169. Dr. Caycedo wrote a brief letter, which Colonel Schirner also signed, stating that Coburn‘s MEB proceedings should be terminated. On the same day, Coburn received his Army discharge papers.
Coburn challenged various aspects of these proceedings before the ABCMR, to no avail. He appealed to the district court and then to this Court, where we resolved some of his claims and remanded for the ABCMR to reconsider Coburn‘s case and address five specific questions about which the record materials did not evidence a reasoned explanation for the Army‘s decision-making. Coburn I, 679 F.3d at 934-35. Since then, the ABCMR has issued a new opinion in response to our remand, affirming the decision to terminate Coburn‘s MEB and proceed with his discharge.
Coburn appealed the ABCMR‘s decision on remand, alleging that his MEB had been wrongfully terminated, contrary to the decision of the ABCMR. The district court disagreed, concluding that the Army “hewed to its regulatory program” by applying a reasonable interpretation of its own regulations, which the plaintiff could not show to be clearly erroneous. Coburn v. McHugh, 77 F.Supp.3d 24, 30 (D.D.C. 2014). The district court also rejected Coburn‘s claim that the ABCMR‘s decision to affirm the termination of his MEB was arbitrary and capricious and unsupported by substantial evidence. See id. at 31. The district court concluded the ABCMR appropriately explained the basis for its decision that Coburn did not suffer from a condition unfitting for service. Id.
Coburn appeals to this Court.
II
We review a district court‘s summary judgment decision in an ABCMR appeal ”de novo, applying the same standards as the district court.” Fontana v. White, 334 F.3d 80, 81 (D.C. Cir. 2003). Where, as here, the district court reviewed the administrative decision under the Administrative Procedure Act (APA), we also “review the administrative action directly, according no particular deference to the judgment of the District Court.” Holland v. Nat‘l Mining Ass‘n, 309 F.3d 808, 814 (D.C. Cir. 2002). Thus, we review the ABCMR‘s decision on remand to determine whether it was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law,” according to the
Coburn‘s first claim on appeal is that the ABCMR acted arbitrarily and capriciously by upholding the ability of Dr. Caycedo and Colonel Schirner to terminate the MEB proceedings consistent with Army regulations. To understand Coburn‘s claim, it is necessary to understand the basic contours of the MEB process. The ABCMR, relying in part on a staff attorney opinion prepared by the U.S. Army Physical Disability Agency (USAPDA), described the process as beginning with a soldier‘s commander or physician referring the soldier to an MEB. See
Here, Dr. Caycedo was the referring physician who initiated the MEB process for Coburn. Colonel Schirner was the appointing physician, responsible for convening the MEB panel following completion of the medical examination and narrative summary. According to Army regulations, Dr. Schirner, as appointing physician, also serves as the approving physician, who is charged with reviewing the MEB panel‘s recommendation and either agreeing with that recommendation or sending it back to the panel for further consideration.
The ABCMR concluded both that Dr. Caycedo had the authority to revoke his MEB referral, and that Colonel Schirner possessed the authority to refuse to empanel physicians for an MEB if he determined it would not be warranted. Coburn disagrees, arguing that Colonel Schirner lacked the legal authority to terminate the MEB process.
In support of his argument, Coburn reads the Army‘s regulations governing MEBs expansively. He begins with
Although the regulatory interpretation Coburn advances is perfectly plausible, the standard of review he must overcome requires more than merely articulating a reasonable alternative reading of the relevant Army regulations. Rather, he must demonstrate that the Army‘s reading of its own regulations is affirmatively unreasonable, being instead an arbitrary and capricious interpretation according to the standard of the APA. Coburn has not and cannot meet that standard.
Here, the Army‘s interpretation of its own regulation is reasonable and neither arbitrary nor capricious. The ABCMR concluded that Colonel Schirner, as the appointing physician “was responsible for overseeing the overall MEB process, and, as such, had the authority to terminate the process if he also believed the applicant‘s condition did not warrant referral to an MEB.” J.A. 63. Coburn‘s MEB proceedings never got so far as to compile a narrative summary or empanel an MEB. Instead, Colonel Schirner “determined it was not necessary to appoint physicians and convene an MEB after further medical evaluation was conducted.” J.A. 64. Because Colonel Schirner “had the authority to appoint physicians and convene an MEB if a soldier required evaluation,” it “necessarily follows that [Colonel Schirner] ha[d] the authority to not appoint physicians to an MEB if he [found] no basis for the MEB.” J.A. 64 (emphasis omitted from original).
While this reading may not be the only plausible way to interpret the relevant Army regulations, it is certainly one plausible interpretation, and nothing in the regulations forecloses it. While paragraph 7-13 would clearly foreclose Colonel Schirner as appointing/approving physician from participating in MEB panel proceedings once a panel is convened, nothing in the regulations prohibits him from exercising authority during the parts of the MEB referral process over which he is given oversight and control.
Accordingly, we hold that the Army‘s interpretation of its regulations is neither arbitrary nor capricious, nor contrary to law. It was lawful for the ABCMR to conclude that Colonel Schirner acted within his authority and discretion when he terminated Coburn‘s MEB proceedings.
Coburn also challenges the ABCMR‘s factual conclusion that his condition did not warrant a disability evaluation. Here again we must affirm the ABCMR‘s decision so long as it comports with the APA‘s deferential standard. To do so, we must conclude that the ABCMR “examined the relevant data and articulated a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Ass‘n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). We can set aside the ABCMR‘s decision only if it is “arbitrary, capricious or not based on substantial evidence.” Chappell v. Wallace, 462 U.S. 296, 303 (1983).
Coburn asserted to the ABCMR that empaneling an MEB remained necessary because his condition had not improved during the course of the preliminary MEB proceedings. In response, the ABCMR advanced three reasons why an MEB was not medically necessary (and thus, why a withdrawal of the referral was within Colonel Schirner‘s discretion): (1) Coburn had never been diagnosed with disc herniation; (2) Coburn did not suffer from radiculopathy; and (3) Coburn‘s back condition was
While Coburn disputes the ABCMR‘s interpretation of his medical records, we are not entrusted with the authority to evaluate the ABCMR‘s actions de novo. Rather, we are bound to uphold those actions so long as substantial evidence supports them. Here, substantial evidence supports the ABCMR‘s conclusions.
III
For these reasons, we affirm the holding of the district court.
So ordered.