Watson v. Geren

1988; Nоt Abuse for fees under 42 U.S.C. eligible Court Did D. The District (2) Calculating cap applies Fees fee PLRA’s Its Discretion (3) suit; and that the District their Court argue that the District Defendants in determining not abuse its did discretion declining its discretion Court abused Accordingly, award. we AFFIRM the fee that De fee award for work reduce its judgment of the District Court. We “inconsistent,” “dupli claim fendants also REMAND the case to District redundant, cative, and unrea excessive of a Court for determination reason- “The calculation of reasonable sonable.” award Fox’s work able fee connec- whose attorneys fees is factual issue appeal. tion with this to the discretion resolution is committed Cruz, F.3d at court.” the district the District 1159.11 We see abuse of the items

Court’s discretion. Most have been

that Defendants contest would Par proceeded if case to trial.

vital ini

ticularly considering that Defendants’ adamantly was to position

tial refuse District requests, Plaintiffs’ and that Timothy WATSON, D. Petitioner- schedule, trial Court set an accelerated Appellee, entirely seem warranted. expenses other com Similarly, none of Defendants’ plaints the Dis lead us to conclude that

trict Court abused discretion. GEREN, Secretary Army, Pete

Respondent-Appellant. E. The District Court Should Consider 07-2563-pr. No. Request Plaintiffs for Fees on Fees Finally, Plaintiffs that we re request Appeals, States Court Court so mand ease District Seсond Circuit. may attorneys’ award them fees for the spent defending ap their award on time Oct. fees”). (“fees

peal do not Defendants

oppose request. requests this Such underlying granted

“should be whenever Okst, Weyant

costs are allowed.” (2d Cir.1999).

F. therefore 3d We

remand the case the District Court

determine a reasonable fee award appeal.

Fox’s work connection with

III. CONCLUSION (1) summarize, we that Plaintiffs

To hold are and thus prevailing parties this case apart their claim. Defendants do assert that the District Buckhannon award, made of law in its Court errors

tice, Washington, (Anthony DC J. Stein- meyer, Attorney, Campbell, Benton J. Attorney United States for the Eastern York, District of Gregory New G. Katsas, Attorney Acting Assistant Gener- al, counsel), for Respondent-Appellant. Arthur Eisenberg, Palyn Hung, and York, NY, Deborah Karpatkin, New O’Connor, J.E. McNeil and Daniel Wash- ington, DC, for the Center on Conscience & War New and the York Civil Liberties Union as amici curiae in support Peti- tioner-Appellee.

POOLER, KATZMANN, B.D. PARKER, HALL, WESLEY and Circuit Judges, concurring denial rehearing en banc.

ORDER disposition Following appeal of this June an active judge of Court requested poll on whether to rehear the poll case ‍‌‌‌‌‌​‌‌​​‌‌‌​‌‌‌​​‌‌​‌‌‌​​​​​‌​‌‌​​‌‌​‌​‌​​​​‌‌‍in banc. A having conduct- been being ed and there no majority favoring in review, rehearing banc in hereby in banc DENIED.

With this Order is per filed a curiam opinion concurring in the denial rehear- banc, ing in Judge files an Raggi opinion dissenting from the denial re- hearing Judge in banc which Chief Ja- cobs and Judges Livingston Cabranes and join.

PER CURIAM. We concur in decision of the court to deny rehearing m banc in this case.1 holding applies only Department Conscientious York, Raymond Toney, NY, J. New for Objector (DACORB), Rеview Board Petitioner-Appellee Timothy D. Watson. judge panel unanimous three held that “[wjhere Waldman, provide the DACORB Attorney, Appellate Joshua does Staff, Division, Department adequate Civil of Jus- statement the reason for its Judges Joseph McLaugh- appeal, M. Senior Circuit this authorized note have us to their Calabresi, lin and were Guido who members agreement opinion. with original three-judge panel heard is, in the strongest of circumstances —that objector applica aof

denial tion, must remand a district court rare which there is “basis instance rea adequate statement of Army for any valid fact” the denial on utterly would be unless such remand sons that the error ground, such DACORB’s futile, there is when the record reveals as pervasive as to be so and fundamental fact the possible no basis sup- a matter of law —is uncorrectable as Geren, 115, 569 decision.” the ported in law. Given established (2d Cir.2009). justifiable There is no 134 depart not does seek panel’s decision respect en banc with to case go reason standards, present- from the issue existing only to the holding applies whose narrow not consid- by appeal ed properly this DACORB,2 we review whose decisions impor- of “question exceptional ered a The fact that generation.3 in a once Rule meaning tance” the of Fedеral within infrequently arises lends credence issue so 35(a)(2). See also Appellate of Procedure en banc review is not to our view that Banc In Practice Newman, Jon O. “necessary to or maintain uniformi secure Restraint, The Second Circuit: Virtues of R.App. ty of the court’s decisions.” Fed. (1984); 365, 50 Brook. L.Rev. 382-83 35(a)(1). the adhere to well-estab P. We and Feinberg, Unique Customs Wilfred banc are “[e]n principle that courts lished Circuit, 14 the Second Practices of Hofstra the rule.” exception, the not (1986). Moreover, 297, as L.Rev. 311-12 American-Foreign Corp., States v. S.S. noted, panel government the decision the 4 L.Ed.2d 363 U.S. 80 S.Ct. un- acknowledged the correctness of this (1960). event, any panel’s the at oral and derlying argument, standard decision, recognizes which in the ordi opinion of court’s following publication the course, for a nary remand DACORB relying acknowledg- government’s on the appropriate statement reasons ment, panel did not seek may only government that we to remand the the decline Army regula- military personnel who claim conscientious 2. As is clear from the relevant tions, participation any is not traditional DACORB in war in form Congress empowered by established “(2) bearing or of arms” and Establish the Congress policy and to enforce laws. make Army Objec- Department Conscientious operate pursuant procedures It dоes not (DACORB), will tor Review Board which Act, akin to Administrative Procedure disposition requesting make on all cases final by Congress, not established has not been (1-0),” Reg. discharge Army see 600-43 Congress empowered by policy to make ¶ 1.4(a), make the and the DACORB “will There is or to enforce law. no statute applications final on re- determination governs discharge voluntary en- ¶ 2-8(a). discharge.” questing Id. As far as objection. on the of conscientious listees basis tell, we can the DACORBdecides whether Statutes, App. U.S.C. The Selective Service grant objector application each conscientious objectors 456(j), § exempt conscientious precedential individually, creating without service, apply do induction into the but "opinions” binding interpretations of the or voluntary enlistees like Watson. There is applicable Army regulations. Regulations mention in the Code of Federal discharge voluntary Army con- enlistees as case was in Our last objectors; only scientious relevant discus- ex v. Schles United States rel. Foster see objectors pertains sion of conscientious (2d Cir.1975), inger, F.2d 751 and our System. See 32 C.F.R. Selective Service reviewing a the DA last decision of case seq. only et mention DA- CORB, Secretary opposed to regulation, Army CORB in the relevant Force, Navy Secretary of was in 600-43, or the the Air Regulation explains Deputy that the Froehlke, “(1) Nurnberg v. 489 F.2d 843 army Develop will Chief of Staff of the (2d Cir.1973). classify policies dispose of and criteria to banc, reasons, rehearing by any en nor did it rehearing required or .... That stay precludes the mandate.4 alone move of its decision affirmance grounds on insincerity, on the record as only directly In this circuit’s case added)). it (emphasis stands.” point, United States ex rel. Checkman v. (2d Cir.1972), Moreover, F.2d 773 rule announced panel in court made clear that the rationale behind is supported announced, principle that the DA- Court of Appeals case to ever consider the question CORB’s “must stand fall on decision at issue here: whether remand to stated,” basis of the reasons is that for a “[oth- DACORB statement reasons is court, erwise a it decision by necessary sustains a where there is no in fact basis if speci- recourse to reasons those support outside the decision. United States ex fied, Laird, opens door to an rel. improper the substi- Coates v. the court district indi- tuting of court’s and judgment the evalua- cated that there was a possible basis in place tion of in fact decision, evidence of the support DACORB’s (here CORB) agency the official granted petitioner with but the writ habeas responsibility. judgment, corpus The court’s its anyway, explaining that where the approachеs, may reasons, reasons and not be ac- DACORB did not state its ceptable may possible to and even have been “some of though dis- the unstated grounds credited the administrative officials re- for the decision were invalid and valid, sponsible.” (emphasis 469 F.2d at 780-81 some were it impossible to tell (“[WJhere added); see id. at which grounds also 779 n. the authority actually used given no reasons are for a denial of as a [con- basis for the decision.” United States status, objector] scientious and the record ex rel. Coates F.Supp. (W.D.N.C.1973). the selective service con- 219-20 Fourth Cir- before officials grounds reversed, tains both valid and invalid cuit holding that the district denial, the the denial cannot sustained court not summarily should have granted impossible Instead, because to know the whether writ. procedure proper “[t]he the than in grounds invalid rather the valid such a case where the record evidences added)); upon.” (emphases were relied id. alternative grounds, possibly one valid and (“[I]t at invalid, 780 n. 10 is not function the of this the other pro- is to remand the court to search the record for some ceedings basis to the reprocessing service for Army’s the decision when and for compliance requirement the with the affirm given reasons inadequate.” therefor are of a statement reasons.” 494 F.2d (internal (4th Cir.1974). quotation marks omitted and em- еxplained The court “if added)); phasis id. at (rejecting 781-82 there are procedural defects the denial government’s contention that the court at the military level of an in-service [con- was not to determining limited objector] whether scientious application, such as there support denial, was a basis fact to failure to state reasons for re- DACORB, given by reasons and in- mand to the ... proper is the procedure, stead could search the basis unless the record shows that in fact to support DACORB’s denial of there is no basis denial on fact for (“The (internal the application); id. at 784 ground.” quotation CORB’s valid Id. added). insincerity omitted) finding accompanied was not (emphasis marks Although question not repaid Department it is relevant to the has now of Defense standard, appropriate legal moneys we note as a had he received connection accuracy scholarship. matter of factual that Dr. with apply per- rule to holding narrow declines remand fail to see how We remedy pro- agency executive mit an existing law or alters changes this case inadequate explanation error of cedural the executive authority between balance Instead, step decisionmaking. final its it rein- anything, If judicial branches. judicial review of the administrative upon ordinary re- importance of forces the record, that it would be Watson concludes role in rule, the court’s limited mand identify any for the impossible reviewing DACORB decisions. with a basis in fact reason may there recognize that We is dis- challenged decision. The conclusion as to how the law should be differing views reasons, many turbing for not least if case.5 But in this applied to facts question that the “agency” which are correct, then the full legal standard is and the chal- with whether occupy itself court should of a conscien- lenged decision the denial correctly applied the law has been objector application, an issue tious Sorrell, 406 F.3d See Landell v. facts. applicant which the bears burden (2d Cir.2005); v. Os Gilliard 165-66 convincing clear and evidence proof (2d Cir.1977). wald, 359, If F.2d 557 359 judicial “the narrow- over which review is course, then our appropriate that were the v. States est known law.” United with en banc would be overloaded dockets Cir.1960) (2d Corliss, 808, F.2d 280 810 of contesting a examination polls panel’s (internal J.) marks (Friendly, quotation of facts. particular sets omitted).1 To justify departure its the remand rule —which here results limited En banc review should be affirmance judgment of a district court only raise to those cases that generally Army classify petitioner ordering to important systemic consequences issues of objector him grant and to a conscientious development of the law and for Geren, discharge, v. immediate see Watson justice. respectfully We administration (E.D.N.Y.2007) 226 F.Supp.2d 483 —Waf- that this is not one of those cases. suggest “futility.” invokes doctrine of son RAGGI, Judge, with REENA Circuit Heretofore, “futility” our applied court has JACOBS, Judge Judge whom Chief agency we could decisions where affirm CABRANES, LIVINGSTON, and Judge confidently conclude that the would join, dissenting. reach the same result in the absence today See, The court decides not to convene e.g., error. Krauss v. Ox- identified Geren, Plans, Inc., 614, en banc to review v. 569 630 Health 517 F.3d ford Cir.2008) (cited (2d (2d Cir.2009), support 115 a decision F.3d respond necessary deci- 5. We do not believe it is 1. Courts review classification analysis procedural the dissent’s of the facts of this for fairness and basis sions Corliss, except point inaccura- v. 280 F.2d at case out two factual in fact. States First, despite hypotheses, The "basis is delib- cies. the dissent’s 810-11. in fact” standard erately about narrow in there is no information in the record order to "limit freedom required judgment to substitute for that of whether Dr. Watson would be of court final for American official or board.” United States ex rel. make treatment decisions an Indeed, 773, (2d analysis would v. 781 soldiers. the dissent's Checkman 469 doctors, Cir.1972). radiologists, objective ineli- It "is if there is make all if not satisfied evidence, discharge objectors. preрonderant gible though even for as conscientious not substantial, Second, support finding ques- there is no in the record indication application pre- was rel. v. Schlesin- that Watson's written tion.” United ex Foster 751, Cir.1975). (2d by anyone ger, pared himself. 755 but Watson

161 doctrine, futility Willoughby, 93-94, see 569 application U.S. 73 S.Ct. 129). (1953) application, akin to F.3d at Such 97 L.Ed. 842 (“Orderly govern- review, harmless error finds requires ment judiciary be as (“APA”), Administrative Procedure Act scrupulous not to legitimate interfere with which instructs courts take “due account Army matters as the must scru- prejudicial ... of the rule of error” when pulous judicial intervene mat- reviewing agency action. 5 706.2 U.S.C. ters.”). Thus, not, fact, I agree while do comparable support using There is with Watson’s conclusion that it would “futility” as Watson does to reverse chal- impossible as matter law for lenged agency allowing without action to to state reason with basis in fact for procedural correct identified omission denying petitioner conscientious explanation. application Such status, II.B, my Part request infra futility upsets doctrine the balance of au- the court to convene en banc prompt- thority judicial between the executive and ed a larger concern as to the propriety branches underlies the remand rule. of a court such undertaking review the generally Chenery Corp., See SEC сase, stage record at this see infra 1575, L.Ed. U.S. 67 S.Ct. 1995 Part II.A. I Accordingly, respectfully dis- (1947) (cautioning against propelling courts sent from the en denial of banc review. ... themselves into “domain set aside ex- clusively agency”); for the administrative I. Background Co., FPC v. Power accord Idaho challenge This Army’s denial (1952) 17, 20, 73 S.Ct. L.Ed. objector conscientious classification came (observing that “function of the into federal court on petition for a writ of court ends when an error of law laid background habeas corpus.3 The point bare. At matter once more reconsideration”). petition includes an goes for extensive administra- [agency] tive developed In no area is over several months carefully this balance more governed by relating proceedings Department calibrated than in matters defense, administration Army including regulations. gen- nation’s Defense and See generally erally of its armed forces. See Department of Defense Instruction Orloff only by judiciary. app. § 2. The APA is relevant to this case See 50 456(j); U.S.C. De analogy "applies 1300.06; Army because the Act partment of Defense Instruction Hoffman, peacetime,” v. 546 Ornato Army Regulation part In no 600-43. small 10, (2d Cir.1976); Lunney v. 14 accord objector this is because conscientious classifi 550, States, (2d Cir.2003), 319 F.3d 554 and a privilege, right, granted by cation is a statutory exceptiоn applies event to the executive consistent with its constitutional personnel military decisions "committed to authority command over the armed forces. law,” agency discretion 5 U.S.C. see Const, II, 2; Nurnberg § See U.S. art. 701(a)(2) (excepting § actions committed Froehlke, 843, (2d Cir.1973). 489 F.2d 849 review); judicial discretion from id. Nevertheless, challenges classification can 554(a)(4) (excepting military "conduct of or (1) come two before courts in contexts: adjudication foreign affairs functions” from prosecutions for defenses to failure to submit Hoffman, procedures); see also Ornato v. 546 induction, see, e.g., United States v. (noting statutory exceptions F.2d at 14 Corliss, 810; (2) petitions F.2d at observing objectors would conscientious see, e.g., corpus, for writs habeas Hammond judicial remedy availability have no but for 705, (2d Lenfest, 715-16 Cir. corpus). habeas 1968); also Witmer v. United 392, governing objector regulations ‍‌‌‌‌‌​‌‌​​‌‌‌​‌‌‌​​‌‌​‌‌‌​​​​​‌​‌‌​​‌‌​‌​‌​​​​‌‌‍3. The S.Ct. L.Ed. law (1955) contexts). assign (recognizing classification no review role to the two Instr.”) status, in a 1300.06; duty in reserve whether (“DOD Army Regulation (“AR”) hospital6— I brief or in a provide here combat zone veterans’ 600-43. preliminary “the proceedings provide such care would be summary of because en urging my reasons hu- discussing equivalent weaponizing functional healthy review. by making banc them beings” man enough Application to serve combat. To Voluntary Agreement A. Watson’s (“Watson Doyle App.”) at Timothy Watson Forces in the Armed Serve 1998, Timothy was enrolled Watson Washington George school at in medical Army’s B. The Watson’s Denial of to the United University applied when he Objector Claim Conscientious with Army for financial assistance States objector filed for Watson Pro- to its Health his education. Pursuant year the same his defer- status Army Scholarship program, fessions expire. application ment was to remaining pay agreed Watson’s Army pursuant reviewed to a series of school, in return for years three of medical (1) which included Watson’s procedures, that, gradua- promised after which Watson Army chap- preliminary interview tion, years three of active he would serve lain, expressed as to who reservations Al- years five in the reserves. duty and (2) sincerity; a non-adversarial side of the bar- though kept its officer, hearing investigating before his, to avoid gain,4 Watson now seeks III, R. heard Clinton O’Neill who Colonel that he be excused from claiming should sincere, testify, found him and rec- of an even the non-combatant role that he be classified as a con- ommended objec- because he is a conscientious doctor (3) objector; Indeed, sequential record that his scientious contends tor.5 officers, army re- four each of require to war would him to review de- to treat of thе United whom recommended that Watson be fuse member classification;7 armed on active nied conscientious forces—whether Indeed, 5.3; further, Army allowing § DOD AR 4. went classification. Instr. 1300.06 ¶ 600-43, military defer five l-5c. Watson to his service for years graduation after his medical objector Two conscientious classifications complete so that he intern- school could his "1-0,” persons possible: applies to are which radiology. ship residency program and a object military serving who capacity discharge, and results in full DOD objection” 5. "Conscientious is defined as "a "1-A-0,” 3.1.1; § 1300.06 and which Instr. firm, fixed, partic- and sincere persons applies to who refuse to serve in bearing ipation in war in or the form objections permit whose them to combat but arms, by religious training reason of and/or service, perform non-combatant see Army § belief.” DOD 1300.06 3.1. Instr. id. 3.1.2. sought Watson classifi- the former regulations "religious training construe and cation. broadly encompass “a sincere and beliefs” meaningful occupies Although willing- belief in the life initially which Watson 6. stated place possessor parallel hospital, to that filled in a with- its ness to serve veterans' he another, or, deeply upon learning duty drew that offer that active the God of in the case of beliefs, and sometimes treated soldiers reservists are held moral ethical a belief hеld hospitals. strength at such with the and devotion of traditional 600-43, Glossary. religious conviction.” AR applicant Army reviewing Brig- of demon- bears the burden 7. The four officers were Jr., strating "by convincing Sterling, clear evidence” John Com- adier General E. objector Support qualification mander of the Maneuver Center his for conscientious (4) (E.D.N.Y. vey, a three- 25, further review No. 07-CV-0345 Jan. panel Department member of the 2007), and, 10, April on court granted Army Objector Review Conscientious writ, identifying procedural error (“DACORB”), Army deci- Board the final provision DACORB’s conclusory 5, sionmaker, 2006, on which December objector reasons for its denial of Watson’s application denied for conscien- Geren, application, see Watson v. objector by a tious classification vote of F.Supp.2d at 241.8 The district court fur- two to one. that, ther observed even if it were to as- sume that DACORB’s for reasons denial Proceedings C. Judicial were expressed those in the more detailed January On the office of the recommendations of the four intermediary Army General Surgeon ordered Watson to report officers and the report duty February for on active One interviewing chaplain, Watson would still later, January week Watson chal- relief, be entitled to habeas because none lenged in a for a petition this order writ of of thesе reasons had a fact. basis See filed in corpus habeas the United States at id. 241-42. Accordingly, the court de- District Court the Eastern District of nied the government’s request for remand Therein, New York. Watson claimed that ordered the grant petition- “to had erred in failing discharge application er’s for CO status and release objector. him as a conscientious The dis- him through discharge.” immediate promptly granted stay trict court Id. at Wat- report, order to see v. son’s Har- Wood, Missouri; ¶ 600-43, 2-8d(3) Fort Leonard Colonel Rob- 8. AR requires that denials Marsh, Commanding ert T. Officer of the Hu- applications be ac Louis, Command, man Resources St. Mis- companied by a statement reasons. We souri; advisors, legal respective and their have requirement construed this to demand Jerry Major Colonel J. Linn and Matthew D. more bare than "a ... of recitation the ulti Ramsey, Judge both of Advocate General's [regulatory] mate criteria.” United States ex Corps. In reports, their individual these offi- rel. Checkman 469 F.2d at 787. DA cers stated various reasons their denial CORB "[t]he must state facts or factors relied recommendations, e.g., timing of Watson’s upon” reaching its See conclusion. application, vagueness professed his Stewart, (2d States v. Cir. code, inconsistency moral between Watson's 1973). explanation DACORB’s for its denial professed sanctity commitment to the of all case, quoted entirety by decision in this human life and refusal to treat wounded court, Geren, the district soldiers, and minimal evidence Watson's F.Supp.2d satisfy failed to this stan aspects beliefs carried over into other dard. simply DACORB’s President stated denial, however, life. One for reason was application that Watson’s "not convinc by cited all four officers: Watson's failure observed, ing,” and "I am not drawn to be convincingly opposi- to demonstrate that his applicant's lieve in sincerity the and find him beyond Afghanistan tion extended the wars in disingenuous application expe and the Iraq to reach "all DOD Instr. wars.” Judge dient.” Id. DACORB’s (stating Staff Advocate applicant's 1300.06 3.5.1 that "ob- jection concluded that Watson must be all wars rather than a “failed demonstrate 600-43, war”); specific Glossary,

. AR convincing Section clear and evidence that he has form”); (defining any firm, II “war in see also a fixed and sincere to war in Gillette v. United 401 U.S. any Chap form.” Id. Even DACORB's Staff (1971) (“[Cjonsci- S.Ct. 28 L.Ed.2d 168 lain, only the Board member to recommend scruples relating entious to war classification, objector conscientious stated opposi- service amount to must only that he found "beliefs to be Watson's participating personally any tion to war sincere Id. and fixed.” war.”). and all the dispute lenged agency did the action on the basis of the not appeal, On it, course, except proper before procedural identification district court’s circumstances, in rare is to to the remand challenged the refusal It error. for or ex- agency investigation additional an to afford DACORB remand case planation.”). required expla- provide opportunity to decision. Wat- nation for its denial While acknowledges scope Watson broad general applicability acknowledges son apply it of this remand rule but declines to rule, it apply declines remand case, concluding in this that it would be case, concluding “remand in this that explain “futile” to DACORB to ask futile” the court’s utterly because would conclusory denial of conscientious “no review the record indicates own re- classification because court’s own application in fact denial of the basis in fact view of record reveals “no basis Geren, 569 ground.” valid Watson v. support” possible explanation. at Watson affirms the dis- F.3d 134-35. Geren, v. at 134. In effectively ordering judgment, trict court support, Watson cites Krauss v. Oxford discharge. Id. Plans, Inc., 517 Health F.3d 614. See Geren, v. 569 F.3d at 129. Krauss II. Discussion not, fact, use of does futility an doctrine reverse adminis- “Futility Does Not A. Doctrine” the agency trative decision before has had Exception Re- an Provide opportunity provide required ex- Rule in This mand Case plаnation. It is “fundamental rule of administra- In Krauss —an ERISA case—we deter- court, law ... reviewing tive that mined remand was futile because the dealing judgment with a determination or deny decision to sub- plan’s benefits was alone is which administrative correct, stantively notwithstanding proce- make, propri- must judge authorized to reaching error in dural decision. We solely ety grounds of such action “the explained that because relevant infor- agency.” Chenery invoked SEC finally plain- mation has been disclosed [to 196; Corp., 332 at accord United U.S. tiffs], we are confident administrative ex rel. 469 F.2d Checkman futile.... plan]’s remand would be [The A necessary corollary at to this rule determination, proper- even if benefits action is to be tested “administrative ly explained at the time denial and by the upon purports basis which it review, was, during administrative set forth rest” that the basis “must be matter, imple- an appropriate substantive clarity with such as to be understandable” of ... the Plan.” mentation Chenery court. SEC v. short, the futility we used doctrine Corp., 332 at 196. When the basis challenged agency in Krauss to affirm challenged is not administrative decision decision, in way much the same we use understandable, “the course appropriate error. rule harmless reviewing ordinarily for a court is to re- v. In other in which has agency.” mand the Ward cases our court casе (2d Brown, 516, Cir.1994); “futility” exception 22 522 see as an F.3d invoked Lorion, rule, analysis similarly Light our has also Florida Power & Co. v. remand 744, 1598, 729, 105 84 akin to harmless error review. Nota- 470 U.S. S.Ct. been (“[I]f (1985) cases, reviewing bly, immigration our determina- L.Ed.2d 643 chal- tion that remand would be futile has invar- simply court cannot evaluate the

165 confidently we can iably “futility” turned on “how This use to affirm agency rulings sensibly expedites reach resolution predict agency that the would underlying disputes in circumstances absent the errors were same decision losing party where the prejudiced was not 141, Mukasey, Li v. 529 F.3d 150 made.” by the error. Such application specifi- is (2d Cir.2008) (internal quotation marks cally APA, provided for in the see 5 U.S.C. omitted); also, e.g., Niang Mukasey, see v. (instructing 706 reviewing courts that (2d Cir.2007); 138, 511 F.3d 149-50 Man “due shall account be taken of the rule of Sec., Dep’t zur v. U.S. Homeland 494 error”), prejudicial way and in no diminish- (2d 281, Cir.2007); F.3d 295-96 Siewe v. es the agencies’ deference courts owe sub- Gonzales, (2d 160, 480 F.3d 166-67 Cir. expertise stantive or decisionmaking au- 2007). approach We have taken this same thority. futility to to challenges other Watson, however, invokes for futility rulings, by administrative for example, quite purpose. different Rather than in- Treasury Department, Karpova see v. futility voke to agency decision affirm (2d (de Snow, Cir.2007) 262, 269 497 F.3d error, presenting harmless to to clining Treasury’s remand Office of futility invokes an agency reverse deci- Foreign ground Assets Control on that we ground sion on the pur- that the error is were “confident that the Agency would portedly pervasive so fundamental and as reach the same conclusion absent al [the to be uncorrectable as a matter of law. I error”); leged] by the Environmental Pro respectfully suggest authority that our Agency, tection Res. Natural Def. take such action in lieu remand is ex- Council, 519, Inc. v. F.2d U.S. EPA tremely narrow9 properly and not exer- (2d Cir.1974) (declining to remand to case, cised where identified EPA because is no reason” “[t]here i.e., procedural omission, error is one busy make “the himself Administrator dis lack of explanation, and where the matter negatives prove proving thousand i.e., in dispute, clas- and, Krauss, single positive”); sification, one is whose com- substance is administrators, plan ERISA see Giordano exclusively mitted military expertise. Thomson, (2d 163, n. 168 & 3 generally See McGee v. United Cir.2009) (characterizing remand futile 486, 1565, 91 S.Ct. 29 L.Ed.2d 47 plan because did not err in denying bene (1971) that, (noting “dispute[s] unlike fits). cases, futility we invoked about statutory interpretation,” military uphold agency decisions because we had classification “depend[] decisions on the agency doubt that the reach would application expertise by administrative same conclusion in the absence of iden bodies in resolving underlying issues fact”).10 circumstances, tifiеd error. In such inl- is judicial noteworthy authority It remanding and “will continue we en- when opinions reverse decisions of the Commissioner of So- counter from ALJ’s ‍‌‌‌‌‌​‌‌​​‌‌‌​‌‌‌​​‌‌​‌‌‌​​​​​‌​‌‌​​‌‌​‌​‌​​​​‌‌‍that do com- Security remanding prehensively weight cial without case set reasons for forth rehearing assigned” treating opinions). expressly provided physician statute. context, § 405(g). See 42 U.S.C. Even in this however, signaled strong prefer- we have distinguishable George 10. This case Brooks, pre- Hyman ence statement of reasons Construction Co. 963 F.2d liminary undertaking judicial (D.C.Cir.1992), substantive cited also Barnhart, remand, generally See review. Halloran v. its refusal to see 569 F.3d at (2d Cir.2004) (observing because error identified in that case Specifically, our circuit not hesitate remand” law. a Re- "do[es] one of Benefit 166 for an the correction of identification reasons to remand for

perative administrative procedural error before decision. A classification decision “must judicial review of substan- undertaking stand or basis of reasons fall added). a “know because court must tive decision at 780 (emphasis stated.” Id. “say before can a decision means” what Checkman, In the Army provided had wrong.” it is or right whether its challenged actual reasons for classifica- Co., M., Chicago, P. & P.R. v. St. decision, tion which our found to lack court 499, 511, L.Ed. 55 S.Ct. 79 294 U.S. a It was face of basis fact. J.). (1935)(Cardozo, 1023 of commissiоn” that Checkman re- “errors by reinforced That conclusion is Army fused to remand afford Army that our review of classification fact amplify reasons. Id. at opportunity to “basis in fact.” is limited decisions with other deci- 787-88. This consistent “toothless,” Han- such review is While judgments we entered sions which have (1st Sec’y Army, 513 F.3d na v. objectors finding for conscientious after Cir.2008), it is narrower even than the that articulated reasons for decision lacked we apply evidence review substantial See, a e.g., basis fact. United States ex majority vast of administrative chal- (2d Schlesinger, rel. 520 F.2d Foster rel. lenges, see United States ex Checkman Seamans, Cir.1975); Ferrand v. 488 F.2d Precisely 469 F.2d at 787. be- Cir.1973). (2d cases, In each of these cause our review of classification we the actual reviewed reasons advanced narrow, have empha- is so we decisions decisionmaker; final made we no that focus of a proper “[t]he sized review- assumptions might as to what reasons given” is on DA- ing court the reasons have an unexplained informed decision. CORB, may “not on that reasons come Indeed, cites to no case which a rummages if and when a court light court, finding only an omission upon error in an effort throughout to re- explanation, simply bypassed the re- might on what the board construct basis and, identifying mand after rule what it have decided the matter.” Id. thought pоssible were reasons point rejecting we Checkman made finding lacking decision and them basis that a government argument court’s own fact, judgment effectively entered of a in fact for an identification basis objec- DACORB and ordered the reversed support classification could denial of an discharge. tor’s immediate Such action objector’s challenge habeas the classifi- hardly comports But with caution- cation. See id. at 784-85. same Checkman’s ary reasoning surely observation court not a applies argument “[t]he stranger agency” may unexplained that a court reverse an hostile the official decision; on its own a final attempted making classification administrative law, Co., applicable Hyman despite George view Board a fee Constr. misconstrued statute Supreme precedent. (observing established Court On 963 F.2d at 1539 that “no rational law, point agencies applying appli- conscientiously [the courts owe such factfinder Cardoza-Fonseca, deference. See INS v. cable could find” the interrelatedness of law] necessary challenged 107 S.Ct. L.Ed.2d claims area, (1987) award), “pure question[s] (observing operating it was in an fee awards, statutory routinely first construction” are "for the courts to addressed in the in- and, decide”); Co., GeorgeHyman unlike Constr. stance federal courts conscien- Moreover, objector applications, requiring at 1537 n. 3. when court de- neither tious agency expertise case to see if nor difficult assessments of clined remand the the Board explain scope sincerity person’s could its fee award consistent with beliefs. act, conjunction,” the Corps” “rather two each with to scrupu- instructions “follow jus- of lously regulation” with distinct “roles furtherance the requiring that the the public agency tice and interest.” 469 F.2d at state its for denying reasons the (internal Id. at 713 application. 781.11 quotation omitted). marks The same ap- conclusion I court respectfully submit the ex- plies here.12 role in ceeds its limited the review of sum, In I think the remand rule should military classification decisions when it applied have been this case to afford conducts basis-in-fact review before afford- opportunity an ing military opportunity remedy expla- remedy omission, omission nation and I do not think the explanation. error The futility recognized provides doctrine an exception Fourth Circuit as much in permits that rule that United States ex rel. Coates v. court a to reverse an (4th Cir.1974). case, denial F.2d 709 In that clas- a court, sification district confronted with a because the court itself military could not identify explanation, a reason failure of “reviewed the full with basis in fact for the challenged glean record order to from it decision. possible reasons for the denial” and then Application B. Basis-irir-Fact Id. at 711. The discharge. ordered Review This Case reversed, Fourth Circuit holding such review “unnecessary.” record was Because I do not think it appropriate Id. proper procedure” for “[T]he was “to re- court undertake basis-in- proceedings mand the to the Marine fact review Watson’s classification chal- Indeed, despite explain the identification of com- why judicial reasons for decision to errors, go mission Checkman did not so far reasons, review must be limited to stated ordering objector’s immediate given for: "where are reasons for a denial Rather, discharge. approved Checkman status, of CO and the record before selec- grant conditional writ of habeas cor- tive service officials contains both valid and pus, affording DACORB four weeks to con- denial, grounds invalid for denial can- proceedings duct new “shorn” of the identi- not be impossible sustained because fied errors. 469 F.2d at 788. know whether the invalid rather than grounds upon.” valid were relied F.2d at Coates, ruling the court's remand refer- 779 n. 7. Checkman's observation that "a enced the existence valid as well invalid court, if it sustains a decision recourse to grounds challenged for the decision. See 494 specified, opens reasons outside those ("The proper procedure F.2d at in such a improper substituting door to an case where the record alternative evidences grounds, judgment possibly one court’s and evaluation valid and the of evidence other invalid, proceedings place is to remand the agency respon- of that of the ... with reprocessing compliance service for added), for sibility,” at (emphasis applies id. requirement with the of a statement of rea- equal with force if a court reverses a decision sons.”). simply I understand reference specified. recourse reasons outside those Coates, acknowledge the state of the record in presumptuous If it court to assume depends not to hold that remand aon court's agency that an decision was based on reasons own identification in the of a valid court, identified id. at 779 n. so, reason If that for decision. had been presumptuous so it is court to assume hardly Circuit Fourth would have concluded identify possible every that it can reason for judicial glean review of the record "to decision, particularly in an area in- possible ... reasons for the denial ... was by agency expertise, formed see McGee v. added). unnecessary." (emphasis Id. 402 U.S. at 91 S.Ct. 1565. Nor can Checkman be understood im- pose It such condition remand. refer- ences record evidence valid and invalid 168 circumstances, officers even in other proper a statement such

lenge in the absence may chain denial recommend decision, review I final for the of reasons there provided classification is on what valid to comment reluctant am rational “objective affording a ba evidence Nevertheless, might be advanced. reasons validity accept sis” for the “refusal I am far from convinced Wat- because v. Re applicant’s of the claims.” Lovallo be analysis impossible it would that son’s (2d Cir.1971); sor, 1262, 1264 see 443 F.2d to advance of law for as a matter ex rel. Checkman v. also United States reasons, a few I offer observa- any such Laird, 778; at 469 F.2d United States v. exhaustive, tions, about no means basis- Corliss, judicial F.2d at 814. re 280 On and as generally applied in-fact review view, need not objective evidence be such case. or even “substantial” to “preponderant” noted, First, basis-in-fact re- already a basis fact for decision. constitute standard known to is the narrowest view Schlesinger, rel. United ex Foster v. States Corliss, law, F.2d v. 280 see United States Indeed, 520 at 755. courts conduct F.2d 810, judicial to limit specifically intended at objector classifi ing review of basis-in-fact military decisionmaking, into intrusion Judge cation to bear in mind do well Laird, v. “though States ex rel. Checkman Friendly’s United observation Thus, a mind much a fact at once court is state of a man’s is as F.2d 469 a lot digestion, the state of his it is less procedural fairness af- satisfied susceptible objective determination.” forded, is its basis-in fact review limited Corliss, v. F.2d at 810 United States 280 rationality challenged ensuring (internal ci quotation marks and internal Judge Friendly decision. As de- omitted). Moreover, tation courts must “in the task: a court effect must scribed always recall the burden remains determine, can, as best it whether clearly convincingly applicant and, hearing Local Board officer objection. prove claim of conscientious ultimately, the Board Appeal were ration- 5.3; 600-43, AR See Instr. 1300.06 DOD disbelieving sincerity al and sincere ¶ 1-5c. registrant’s absence [even] belief Third, objective while evidence is more regis- conduct inconsistent with the speculation, equate than not mere does assertion, a and this on al- trant’s v. to direct evidence. See United Witmer cold and thin.” ways often United States (ob- States, at 392 348 U.S. S.Ct. Corliss, (emphasis at 814-15 v. naivety” “pure that it would serving be added). expect outright decep- “an admission Second, person fact that states tion”; thus, “competent the most evidence” objec- prima case for conscientious facie generally will drawn “inference[s]” requirе military tion classification does conduct). testimony applicant’s it as accept authorities sincere. See single admitting only Nor it evidence v. United 348 U.S. Witmer Congress’s id. (recognizing inference. See (1955); 381-82, L.Ed. 75 S.Ct. intent review to make Selective Service v. United States ex rel. Checkman final where was conflict- “in all cases there 778; Corliss, F.2d at States v. United where ing evidence or two inferences could at officer hearing 280 F.2d 814. When testimony”). In- be drawn from same directly interacts with the applicant who deed, not contem- basis-in-fact review does sincere, finding him to finds plate any judicial weighing of evidence. “great weight.” Ferrand ex entitled See rel. Checkman Rather, Nevertheless, Laird, Seamans, courts 488 F.2d at 1390. light “weap- view the record in the most Watson’s involvement such must in deter- favorable decisionmaker necessarily ‍‌‌‌‌‌​‌‌​​‌‌‌​‌‌‌​​‌‌​‌‌‌​​​​​‌​‌‌​​‌‌​‌​‌​​​​‌‌‍onization” would be indirect. challenged mining whether classification not, all, after surgeon, was rational. orthopedist, or a neurologist. He is a short, and, he radiologist reads mind, proceed I principles With films— —in such, likely any as would not make final I explain why agree cannot with Wat- to soldiers, for treatment decisions American impossi- that it would be son’s conclusion much would he be to likely provide less to to basis in point any ble for DACORB Nevertheless, that treatment.13 for its It is useful to Watson fact denial decision. exactly insists that it would be immoral by considering play how Watson’s to begin tangential professed any beliefs conflict with the service even a role in providing him Army commitment the asks to honor. medical for care American soldiers. he opposes submits that war Watson Army might The reasonably identify (1) he that all human life because believes inconsistency between this opposition and (2) sacred, war is a futile means for is professed belief in the inviolable (3) war in- resolving disputes, human sanctity every life, human core evitably large of non- causes number personal moral code. Watson submits result, casualties. As a Watson combatant is no inconsistency there is because he refuses to kill other human unequivocally not suggesting that wounded American beings, and indicates that he would die die; soldiers should be left to he is simply than so. toUp himself rather do this play himself refusing any part to in their Army there is no The point, problem. expects treatment. He that other doc- not ask serve in a combat does Watson to presumably with less refined moral tors — Quite contrary, role. asks provide codes—would the treatment neces- by to honor his commitment serv- Watson sary to save soldiers’ lives. in a ing as non-combatant role where his responsibility sole be to human would save It hardly would be irrational for DA- Thus, lives. we come to the crux Wat- rеject CORB reasoning. this tortured play claim: he son’s refuses person sincerely If a believes an act is life-saving even the role doctor immoral, then person might reasonably he it immoral participate because deems expected to believe that the act is im- any way in “weaponizing human be- moral no matter who commits it. I am ings.” App. at Watson 5. hardly suggesting that Watson should be- claim, considering sincerity any In of this lieve it immoral for doctor to treat Army might reasonably soldiers, position consider wounded American claim, concurring opinion objector The identifies not determinative factor in characterization as one of two "factual inac- any this or other conscientious case. Moreover, curacies” because is no "there information DACORB would consider the fact the record about whether Dr. Watson would advantage with a considerable over the Wat- required make final treatment decisions panel, namely, familiarity son with how the 5], for American soldiers." Ante at n. It [160 Army presently specialized doctors uses with proceeds analysis to state that "the dissent's training, particularly radiologists. medical doctors, radiologists, make would if not all event, any clearly refuses serve ineligible discharge for as conscientious ob- even limited extent discussed in text. jectors.” my рosition, Id. This misstates charge inaccuracy second factual specialty which identifies Watson’s factor unwarranted, similarly explained properly assessing considered DACORB in infra sincerity particular of his note objective fact: further revealed another breathtaking con- necessarily leads morally preferable any in his civilian steps clusion his failure to take lack of to die for Americans such wounded he medical to ensure that did not practice play a than for doctor to care medical treat, thereby “weaponize,” Unit- noting I am “weaponization.” in their part example, military personnel, ed effort to have it both that Watson’s simply on leave from active persons reservists or refusing treat wounded soldiers ways, duty. failed even apparently treatment oth- opposing himself but oversight action.15 The consider such of, thereby possibility denying ers — the of Wat- noteworthy because likelihood for, the loss of avoiding responsibility and reservists, encountering son’s some and moral the shallow exposes soldiers’ lives — soldiers, hospital duty even active as to conscientious of his claim foundation remote, hardly very and the resident was could reach the objector status. DACORB objection claim is a essence of his moral from the stated facts determination same role, tangential, playing any however rationally that had conclude Watson and Moreover, DOD weaponizing soldiers.16 convincingly clearly and established specifically Instr. states that 5.2.2 any providing moral opposition that his by an im- “[s]incerity is to be determined American is a care for soldiers medical strength and think- partial applicant’s “held with the devotion evaluation belief AR religious conviction.” of traditional ing living totality, past and 60CM3, Glossary.14 present,” § 5.2.2.1 careful ex- requires man- applicant’s amination of an “outward Indeed, shallowness Watson’s treating of the beliefs asserted.” opposition moral soldiers is ifestation any precisely report not- because he failed to ac- 14. To the extent some officers opposition caring manifesting ed that Watson’s tions in his civilian life taken Hip- at odds wounded seems with the soldiers Watson beliefs asserted. dismisses res- Oath, light pocratic Watson is dismissive in that, noting chap- although the ervations pro- non-opposition Watson's to other doctors proce- example as of a lain cited abortion viding necessary See treatment. Watson sanctity dure that a doctor committed to Geren, provides The at 134. avoid, chaplain ap- might seek to life no as to whether this us with information parently specifically did not ask Watson about Hippocratic responsibly construes the Oath. Geren, abortion. See Watson v. 569 F.3d at text, No matter. For tire reasons stated in point, given 134. seems beside the that That argument that it would be immoral Watson’s Watson, proof burden of on soldier, treat for him to a wounded but moral objector appli- cited instructions alert DOD so, do does not close for other doctors to bear relevancy of civilian conduct con- cants scrutiny. professed Hanna sistent with beliefs. Cf. Sec'y Army, (noting Only possibility 513 F.3d at 7 15. when about the asked having "unknowingly” seeking objector treated conscientious classifi- doctor personnel practice hospi- his civilian did sought and obtained leave from cation might prac- indicate that he have to limit his participation tal in abortion to abstain tice "in broadest terms to non-members event, procedures). In whatever Wat- militaiy.” Investigation Hearing Memo- the randum, abortion, objective position fact son’s July 2. although opposi- professes an remains that he "weaponizing beings” tion so human com- 16. What is remote is the likelihood of plete would even to the X that he refuse read acceding hospital to a doctor’s soldier, rays he took of a wounded American patients to treat armed refusal nation’s practice steps civilian to ensure in his forces. patients nоne were members of the of his chaplain expressed interviewing The reser- United States armed forces. sincerity vations about the of Watson's claim (a) underlying person’s inherent in troubling In addition to facts The basis of the claim, objective professed objection there chro is the conscientious (what believes, applicant why). file for that Watson did not nological fact objector until classification (b) conscientious period specific The time (being year his service deferment the same in which possible) person’s belief expire. son no believes in in the recognizes timing may that coincidental in capacity very and he feels inquiry further to the indicate “that that strongly treating wounded soldiers sincerity warranted,” person’s is The id. sending them fight ‘in results back in grounded reason is common sense. the functional equivalent weaponizing of “[sjudden may While accessions of belief ” beings.’ Investigation Report, human sincere, utterly as the one memorable 12, 2006, July hardly at 1. It apparent road,” on the Damascus United States views, one, that particularly these the first Corliss, 812, “[a]ny parent F.2d at the equate required to all opposition whose claims to sick on morn child war, reasonably a that point might inform ing of exam than to the final knows better aspects DACORB’s consideration other value,” take at face suсh claim Hanna report. (Boudin, Sec’y Army, at 513 F.3d In response inquiry, the second J., Thus, dissenting). Army is not report identifies the attacks of terrorist relying timing together foreclosed from on September and the United in providing with other facts a rational “pre-emptive Afghanistan States’ strikes explanation for its denial decision. See especially Iraq” prompt- as the events Witmer v. at ing study various writers and (recognizing “possi that S.Ct. 392 facts “violence, philosophies addressing bly may in insignificant standing alone” of violence and causes alternatives vio- totality “help context of of circumstances report express lence.” Id. The makes no finding insincerity”); Lobis however, finding, study in fact Force, v. Sec’y the U.S. Air expanded opposition Watson’s from the (1st Cir.1975) tim (observing Afghanistan wars in to wars Iraq gen- ing weight” might warrant “substantial it erally, nor does indicate when evidence”). where “reinforced other Watson’s views became “fixed.” Id. The might objec- identify significant. The further silence is DACORB—which tive to its denial experience facts relevant decision has much more than this court investigation reviewing Col. findings reports might O’Neill’s such conclude — begin by reviewing officers, report. explain, To is useful to therefrom the four listing subjects expected be ad- each of whom determined that Watson had report: convincingly dressed in such a opposition demonstrated ones and necessary to “defend his loved not Iraq wars and Afghanistan himself,” harm or exact but not “to inflict wars, rejecting specific not were to all but, Observing officer that these cir- investigation retribution.” Id. finding by the judgment not addressed “a call on rather, identifying required concern cumstances process review by that officer. fits the definition” where this soldier opinions considered heavily on the objector, investigation “relies a conscientious in addition to those of officers of a number 1-0 classification be- recommends report Aguayo v. the DACORB.” bias, who serve “strong anti war cause of Watson’s (D.C.Cir.2007). 971, 979 Harvey, 476 F.3d treat combatant and refusal to Soldiers.” agreement that con- they are all in When response at 1-2. In to the fourth Id. should be objector classification scientious report states inquiry, see, e.g., Sec’y Hanna v. granted, sincerely likely held and not views are confronts DACORB Army, 513 F.3d change. See id. identifying a basis in challenge greater considering responses where, But

fact for a denial decision. by the inquiries, two one is struck last here, investigation officer’s recommen- finding that what Watson’s beliefs objector clas- grant dation Armies,” opposition to “all prompted was rejected by all four sification investigation for the a curious formulation ad- ground specifically officers on employ given officer to his undoubted rеport, surely investigation dressed regulatory require- awareness that cautiously in con- proceed a court should to “all wars.” See opposition ment reviewing officers all cluding that 600-43, 3.5.1; AR DOD Instr. 1300.06 in irrationally acted and without basis II; Glossary, see also Section Gillette fact, necessarily and that DACORB would 437, 443, 91 S.Ct. U.S. provide if it were asked to do likewise (1971). To the extent 28 L.Ed.2d 168 reasons for denial. explanation fuller of its indicates that Watson has a report Indeed, signaled caution further such is bias,” “strong specif- anti war it makes no investigation report’s response to by the finding ic as to whether this bias is direct- out- inquiry, which states at the the third presently at all or at the wars ed wars presently that fits somewhere set in Af- being fought the United States ground” in middle of the definition of “the in ghanistan Iraq, and which Watson objector. Investigation a Thus, even if might expected to serve. Report, July at 1. While that this reference one were to assume explain does not this characteriza- report wars, explanation, failure of was to tion, meant suggests context that it is not particularly point on the of concern noted fit signal squarely that Watson within officers, reviewing four is itself ob- but, rather, the evi- the definition might reason- jective fact that DACORB in point dence did not all one direction making own final deci- ably consider report the issue. The states that Watson sion. held moral and ethical beliefs “deeply has officers’ concern—and of a consci- that fit with the definition” fur- possibly point DACORB’s—on this is objector, noting particularly entious own reasonably ther informed Watson’s and all against “[h]e investigation hearing. testimony at Armies, injured would not care for and time, testimony formally was not While this At the same service members.” Id. transcribed, investigation pre- officer paci- is “not strict animal, we are basically an but we peculated in early [sic] which panel opin- Because district court and form personal” "seem more learned than and quote length, ions these submissions at there prepared are with assistance from another is no need to do so here. See Watson v. person, may assessing factor be considered Geren, 119-25; Geren, 569 F.3d at Watson v. scope belief). sincerity professed sure, F.Supp.2d at 229-34. To be Wat- concurring opinion The purported identifies son cannot be seeking faulted for the assis- inaccuracy factual in the characterization of presenting application. tance of counsel in his counseled, Watson’s stating submission as Geren, See Watson v. 569 F.3d at 134. Never- that "there is no indication record that theless, assessing whether he demonstrated application Watson’s prepared by written was war, opposition a sincerе to all rather than to anyone but Watson himself." Ante at n. wars, [160 specific reasonably was enti- 5], 16-page, single- The fact that Watson’s tled to note differences in how Watson him- spaced application was submitted an attor- explained they self his beliefs and how were however, ney, certainly is some evidence that described in his counseled submissions. Cf. States, his written submission was “counseled.” Gillette v. United at inference, Even without that inconsistency (counseling objec- caution that conscientious application between Watson’s produce written and his tion claims not different results hearing testimony, applicant ensuing discussed in based on whether "more articu- late, educated, text, counseled”); objective better or better evidence on which DACORB Corliss, (ob- rely explaining United States v. could deny 280 F.2d at 815 its decision to serving application that where answers on classification. officer, investigation reviewing organizations that on-line led to course, officers, are, me. more sense to Sometime itself made and DACORB early summer of in the late or entirety. obliged to review the record part our uncomfortable with I was record, notes, That as Watson contains I dis- current situation. asserting numerous written submissions friends who were this with cussed Afghani- opposition that Watson’s family members who supportive the first Iraq simply stan and wars was with this decision. unhappy were him to step brought on a road that his suggested fraudulent My friends present opposition to all war. See Watson using homosex- such as approaches Geren, at But the inves- 132.19 using my position as a uality or tigation explicit officer never made an disability process physician credibility finding point, on this and nei- That Army. made no get out of nor ther the officers DACORB my out contract sense. I broke submissions, required were credit those concerning specifically Section particularly light objective fact of I also went on- resignation as CO. testimony indicating that hearing Watson’s Organi- with the line and connected ie., situation,” the “current the on- was for the Counsel of zation Center going Afghanistan Iraq, wars in helpful to me. COs which was most prompted in the summer of 2005 him to Memorandum, Hearing July Investigation reading philosophy start but his ser- 12, 2006, at 2-8. agreement vice and to contact conscien- responses Notably absent Watson’s objector groups tious to see what would inquiries to the first two mention get him out of his commitment. Whether Rather, to all wars. opposition testimony might or not somehow be express general good answers beliefs claim reconciled with Watson’s of conscien- likely people, numbers of large will held point. tious is not the It is ob- including many presently serving in this jective from which evidence DACORB country’s armed forces. Even more note- rationally could draw inference any mention in worthy is the lack of Wat- opposition specific real is to the rigor- response purported son’s third of his required wars in which he would be study philosophies ous of thinkers and serve, not to war. See Witmer v. Unit- submissions) (according to his written ed 348 U.S. 75 S.Ct. 392 expanding fixing the critical factor in ‍‌‌‌‌‌​‌‌​​‌‌‌​‌‌‌​​‌‌​‌‌‌​​​​​‌​‌‌​​‌‌​‌​‌​​​​‌‌‍that, (holding where Selective Service opposition Afghani- his beliefs from “conflicting or picks between evidence” to to all Iraq opposition stan and wars inferences, its has a competing decision testify wars. Watson does not to such fact); Corliss, basis United States v. expansion Quite the con- his views. that, con- (observing F.2d at 815-16 when trary, says he the summer of 2005 competing ap- fronted with statements of “the current situation” his discomfort with objec- plicant’s basis for his conscientious him to out his service prompted break service, Appeal tion to Board was agreement with the to see how he reject get accept could out of it. free to last statement most opposing example, application periences” that his “beliefs” all war 19. For in his for consci- classification, entious Watson stated "crystallized by early Wat- Summer 2005.” that it was as a result of "a culmination of App. at son readings, meetings, discussions and other ex- applicant).20 to II that led to the favorable War liberation of Aus- chwitz and Buchenwald.21 Yet this must objective other in the record facts Still if be Watson’s view his refusal to save provide rational a DA- could life, belongs if life American determination that failed CORB Watson soldier, be is to understood as a sincere his clearly convincingly prove oppo- and opposition all war. to all For example, sition wars. entirely to view all war “an professes as This discussion is not meant to exhaust App. human endeavor.” Watson shameful objective might facts on relied that he particular at 6. war actions on remand to explain DACORB easy subject are ones con- references decision, only denial but Iwhy illustrate or, least, present demnation debate. agree cannot with Watson’s conclusion that at 10 (citing “the Crusades See id. explanation with a basis in fact could Reich, atrocities Third the Turks reason, given on remand. For that but Armenia, conflict, Iraq-Iran Stalin’s specifically more because I do not think regime, campaign Japanese murderous futility properly doctrine is applied Pacific, of Nank- rape to include the an exception this case as to the remand Rwanda, Sudan, the ing, Ethiopia, Ameri- rule, respectfully I dissent from the denial But conquest peoples”). can of the Native of en banc review. begs question the difficult critical to demonstration of conscientious ie, wars, to all he also whether gen- views “shameful” those war actions recognized

erally liberating for their ef- Hill, Lexington

fects. and Bunker Omaha notably missing and Iwo

Beach Jima are shame, as are

from Watson’s list of campaign War

Civil led to Lincoln’s Proc-

pronouncement Emancipation

lamation and the Allied offensive World (2d Cir.2009). precedent prompts question Kopp, 20. This me It empha- Watsons conclusion that the obvious does not limit factfinder’s in de- discretion throughout sis Watson's written submissions Thus, ciding evidence what to credit. I re- opposition Afghanistan his wars in spectfully reject the idea that a rational fact- Iraq rationally support could deter- opposition finder could not credit Watson’s convincing- clearly that Watson mination Afghanistan Iraq wars without also ly wars, opposition demonstrated to those his crediting professed opposition to all wars. Geren, generally. not war See Watson complained F.3d at 132. that the campaign Europe, In the final Allied hearing four officers who reached con- large numbers of wounded American soldiers opposing took clusion his statements Af- extraordinary owed their lives to the efforts ghanistan Iraq wars out of context. This objectors serving Army med- argument properly DA- considered ics, history by Stephen recounted Ambrose CORB, preclud- by reviewing but not court chapter in his Soldiers in book Citizen weighing ed the evidence. law “Medics, Nurses, entitled and Doctors.” In permits plainly a decisiоnmaker to credit evi- detailing readings the extensive that informed part it in accepting dence without whole. professed opposition treating moral Jackson, See, e.g., United States v. soldiers, American Watson does not indicate (2d Cir.1985). complete- The rule history. familiarity with this party ensures not intro- ness does misleading duce evidence. See United States notes was scheduled fixed. became preclude or Army regulations belated (c) Whether belief constitutes con- filing from rea being coincidental the sole (1-0 1-A-0) scientious denying son for regulation. under this Geren, Watson v. classification. See (d) sincerity of the person, includ- 600-43, enough, F.3d at True see AR ing reasons for such conclusions. ¶ 1-5a(5)(c) (stating ap “timing of ¶ 2-5k(5). 600-43, AR plication ... is never to fur enough alone response inquiry, to the first in- disapprov fact to nish basis in report vestigation simply states that “Wat- al”), regulation specifically but the same longer serving

Notes

notes questions a memorandum of the pared force as willing fist” because he is to use given and answers usefully ability asked have the to reason and can deny instincts, contrasted to Watson’s statements animalistic and responsible be more gra- counseled written and reach submissions.18 Three cious conclusions. Dealing on a questions and answers suffice to make the basis, day-to-day I honor each indi- point: vidual аs an individual with their Q: exactly your What are beliefs? own understanding of the world. I A: Basically being as concise as I can help them with decisions concerning concerning my they beliefs are their health and well being to the that human life a gift and we are my best of ability while remaining charged with responsibility non-judgmental practical, and but honoring that gift. And to do so we using meaningful approach. every must make effort to ensure Q: When did these beliefs become fixed save, protect, we uphold and human your mind, you and you realized life. were a CO? Q: What basic objecting values besides A: Sometime in my late 2004 beliefs you to violence do have? became fixed when our efforts My A: basic values are Hu- complex. Fallujah light came to and I had an man beings are and ] increasing rational concern that ap- our should be able to decipher between proach in Iraq Afghanistan and good and bad this is a core I unfounded. picture remember the addition, value. gift our is to of a soldier shooting an unarmed think and reason and we have an Iraqi range close crying out. obligation to do so. To shirk this really This shook me prompted responsibility deny is to who we are. me to investigate what we were do- I believe the humanistic view ing and what got us into this situa- point. I goodness believe in the tion quest. My personal awak- species animal, us aas respect ening of this and future missions

Case Details

Case Name: Watson v. Geren

Court Name: Court of Appeals for the Second Circuit

Date Published: Oct 30, 2009

Citation: 587 F.3d 156

Docket Number: 07-2563-pr

Court Abbreviation: 2d Cir.