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Judicial Watch • Berry v McCarthy et al complaint 02112

Berry v McCarthy et al complaint 02112

Berry v McCarthy et al complaint 02112

Page 1: Berry v McCarthy et al complaint 02112


Number of Pages:11

Date Created:October 12, 2017

Date Uploaded to the Library:October 17, 2017

Tags:hasan nidal, fort hood, Mattis, purple heart, hasan, 02112, purple, Berry, Injury, McCarthy, shooting, al Qaeda, complaint, Pentagon, texas, Obama, plaintiff, board, Washington

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Case 1:17-cv-02112 Document Filed 10/12/17 Page THE UNITED STATES DISTRICT COURT
4110 Jud Drive
Cincinnati, 45236,
RYAN McCARTHY, his official capacity
Acting Secretary the Army
101 Army Pentagon
Washington, 20310,
JAMES MATTIS, his official capacity
Secretary Defense
1400 Defense Pentagon
Washington, 20301,
Civil Action No.
Plaintiff Howard Berry Plaintiff brings this action under the Administrative
Procedure Act, U.S.C. 701, seq., for judicial review final agency decision denying his
son, U.S. Army Sgt. Joshua Berry, the Purple Heart for injuries sustained the November 2009 international terrorist attack Fort Hood, Texas. grounds therefor, Plaintiff alleges follows:
The Court has jurisdiction over this action pursuant U.S.C. 1331.
Venue proper this judicial district pursuant U.S.C. 1391(e).
Case 1:17-cv-02112 Document Filed 10/12/17 Page
Plaintiff the father, next kin, and heir U.S. Army Sgt. Joshua Berry,
deceased. Plaintiff resides 4110 Jud Drive, Cincinnati, Ohio 45236.
Defendant McCarthy the Acting Secretary the Army. Defendant McCarthy
principal place business 101 Army Pentagon, Washington, D.C. 20310. Defendant
McCarthy sued his official capacity only.
Defendant Mattis the U.S. Secretary Defense. Defendant Mattis principal
place business 1400 Defense Pentagon, Washington, D.C. 20301. Defendant Mattis sued his official capacity only.
The November 2009 Attack November 2009, U.S. Army Major Nidal Hasan Hasan opened fire
Fort Hood, Texas, killing thirteen people and injuring more than servicemembers and
civilians. Sgt. Berry was among the servicemembers injured the attack.
Sgt. Berry was assigned Headquarters and Headquarters Battery, 1st Battalion,
6th Field Artillery, Fort Hood. had deployed Afghanistan for approximately year
June 2008 and was Fort Hood part transition program following his return from
deployment. was one the last soldiers awaiting redeployment Fort Knox the time
the attack.
Sgt. Berry was briefing room Building 42004 when Hasan started shooting.
Building 42004 part the Soldier Readiness Processing SRP center and next
Building 42003, where most the shooting casualties occurred.
Case 1:17-cv-02112 Document Filed 10/12/17 Page
The briefing room Building 42004 had set metal double doors leading
the outside. witness statements given the U.S. Army Criminal Investigative Command CID and separate statement given Texas Ranger, Sgt. Berry estimated that Hasan
fired 30-40 rounds outside Building 42004. Sgt. Berry told those around him get down the
floor and stay away from the doors and windows. When Sgt. Berry heard gunshots hit the metal
doors near him, leaped over desk take cover and, doing, dislocated his left shoulder. then heard Hasan trying kick the doors. According witness statement from another
individual, Hasan fired three rounds the briefing room doors.
Investigative photographs and sketches the SRP center show the layout
buildings and the location shell casings from the shots fired Hasan. The photographs and
sketches show number shell casings around the metal doors the briefing room where Sgt.
Berry was located during the shooting.
Following the attack, Sgt. Berry was admitted the Carl Darnall Army
Medical Center Fort Hood November 2009, where his dislocated shoulder was surgically
The attending physician who admitted Sgt. Berry found that Sgt. Berry injury
occurred during the mass shooting the SRP center.
Sgt. Berry commander found the injury have been incurred the line duty
and documented that Sgt. Berry was casualty the mass shooting the SRP center.
14. November 2009, Sgt. Berry was entered into the U.S. Army casualty
reporting system with diagnosis shoulder dislocation result the mass shooting the
SRP center.
Case 1:17-cv-02112 Document Filed 10/12/17 Page
15. photograph Sgt. Berry meeting with President Barack Obama November
10, 2009 memorial service Fort Hood, included herewith Exhibit shows Sgt. Berry left
arm sling.
16. memorandum dated December 2009, the Fort Hood Installation Adjutant
General confirmed that Sgt. Berry shoulder dislocation occurred the line duty.
CID, the Texas Rangers, and the Federal Bureau Investigation conducted
joint investigation the shooting and subsequently found probable cause believe Hasan
committed the offense attempted murder when fired Sgt. Berry.
18. May 2011, Physical Evaluation Board found Sgt. Berry unfit for
continued military service due post-traumatic stress disorder, the shoulder injury received
the Fort Hood shooting, and degenerative arthritis the spine. recommended combined
disability rating 80%.
19. May 31, 2011, Sgt. Berry was released from active duty and placed the
temporary disability retired list.
20. February 13, 2013, Sgt. Berry committed suicide. was years old. Sgt.
Berry survived Plaintiff and now 7-year old daughter.
21. his August 2013 court martial, Hasan admitted being influenced Anwar
Awlaki, chief propagandist for the Qaeda the Arabian Peninsula terrorist group.
Legal and Regulatory Background
The U.S. Department Defense Military Awards Program awards decorations
and service awards ensure Servicemembers the Armed Forces the United States receive
tangible recognition for acts valor, exceptional service achievement, and acts heroism
Case 1:17-cv-02112 Document Filed 10/12/17 Page
not involving actual combat. Processing and approval are awarded the name the Secretary Defense. Army Reg. 600-8-22, paragraph 2-1(b).
The Purple Heart differs from all other decorations that individual not
recommended for the decoration; rather, she entitled upon meeting specific
criteria. Army Reg. 600-8-22, paragraph 2-8(c).
The U.S. Code provides that the Purple Heart may only awarded person
who member the armed forces the time the person killed wounded under
circumstances otherwise qualifying that person for award the Purple Heart. U.S.C.
1131. U.S. Army regulations establish the qualifications for awards the Purple Heart and
identify circumstances under which the Purple Heart awarded. See, e.g., Army Reg. 600-8-22,
paragraph 2-8(b). Included among these circumstances international terrorist attack
against the United States recognized such the [Secretary the Army]. Id.
paragraph 2-8(b)(6).
U.S. Army regulations define wound injury any part the body from outside force agent the wound must have required treatment, not merely examination, medical officer [T]reatment the wound will documented the Servicemember
medical and/or health record. Army Reg. 600-8-22, paragraph 2-8(e).
U.S. Army regulations emphasize that the requirement that wound injury
caused direct result hostile action should not interpreted strictly preclude
deserving servicemember from being awarded the Purple Heart. Army Reg. 600-8-22, paragraph
2-8(i). case such individual injured while making parachute landing from
aircraft that had been brought down enemy fire; individual injured result
Case 1:17-cv-02112 Document Filed 10/12/17 Page
vehicle accident caused enemy fire, the decision will made favor the individual and
the award will made. Id. paragraph 2-8(i)(1).
Following the Fort Hood attack, the Secretary Defense declined recognize
the mass shooting international terrorist attack against the United States. Instead, the attack
was characterized workplace violence. result, active duty servicemembers injured
the attack were ineligible for the Purple Heart, among other awards and benefits.
28. response, Congress enacted legislation 2014 mandating that servicemembers
killed wounded attack targeting members the armed forces and carried out
individual communication with and inspired motivated foreign terrorist organization eligible for the Purple Heart. U.S.C. 1129a. The legislation was enacted part the
National Defense Authorization Act for Fiscal Year 2015.
29. February 2015, the Secretary the Army announced that the Fort Hood
attack met the criteria for awards the Purple Heart set forth Title 10, Section 1129a. its
review the mass shooting, the Army found sufficient evidence conclude Hasan was
communication with the foreign terrorist organization before the attack, and that his
radicalization and subsequent acts could considered have been inspired motivated
the foreign terrorist organization.
30. April 2015, the Army awarded the Purple Heart servicemembers injured the Fort Hood attack.
Plaintiff Application
After the announcement that servicemembers injured the Fort Hood attack were
eligible receive the Purple Heart, Plaintiff applied for the award for his son.
Case 1:17-cv-02112 Document Filed 10/12/17 Page
32. March 31, 2015, the U.S. Army Decorations Board considered and denied
Plaintiff application, finding that Sgt. Berry injury was not the result enemy action and that
Sgt. Berry was not direct contact with Hasan. The denial was based part erroneous
email from Fort Hood Judge Advocate, who opined that Hasan did not shoot Building
42004. The Judge Advocate acknowledged that did not have access all available
information, however. The U.S. Army Decorations Board informed Plaintiff could apply
the Army Board for Correction Military Records ABCMR felt the decision was
unjust unfair.
33. December 2015, Plaintiff applied the ABCMR correct the denial his
request. Plaintiff included the following support his application:
Statements made Sgt. Berry CID investigators and Texas
Rangers; Form 199 (Physical Evaluation Board (PEB) Proceedings),
dated April 2011; Form 2173 (Statement Medical Examination and Duty
Status), dated November 2009 the attending physician and
dated November 2009 his commander;
Casualty Status Report, dated November 2009, listing Sgt.
Berry casualty with left shoulder dislocation; letter, dated February 2015, from the Adjutant General
the Army U.S. Senator concerning award the Purple
Heart Sgt. Berry;
Case 1:17-cv-02112 Document Filed 10/12/17 Page letter, dated April 2015, from the Adjutant General the
Army Mr. Berry concerning award the Purple Heart
Sgt. Berry;
Pictures the building Sgt. Berry was during the shooting,
showing the location shell casings from the gun fired the
shooter; and
34. copy Sgt. Berry death certificate. April 17, 2016, three-member panel the ABCMR recommended vote two one that all Department the Army records the individual concerned corrected awarding [Sgt. Berry] the [Purple Heart] for the injury incurred November 2009.
The ABCMR panel found [t]here question that [Sgt. Berry] injury met the basic medical
criteria for award the [Purple Heart]. The ABCRM panel also found [Sgt. Berry] was
injured result his own actions when leaped over desk for cover. This injury can
attributed enemy action only the extent that [Sgt. Berry] would not have had take cover
had there not been active shooter the area.
35. October 28, 2016, Deputy Assistant Secretary the Army (Review Boards)
Francine Blackmon, acting pursuant authority delegated the Secretary the Army,
issued memorandum rejecting the ABCRM panel recommendation. the memorandum,
Deputy Assistant Secretary Blackmon wrote: have reviewed the findings, conclusions, and Board member recommendations. find there not sufficient evidence grant relief. Therefore, under the
authority Title 10, United States Code, section 1552, have determined that the
facts not support conclusion that [Sgt. Berry injury met the criteria for
Purple Heart.
Case 1:17-cv-02112 Document Filed 10/12/17 Page
The memorandum concluded, ORDER THE SECRETARY THE ARMY, followed Deputy Assistant Secretary Blackmon signature. Deputy Assistant Secretary Blackmon
failed provide any further explanation for the decision.
(Administrative Procedure Act, U.S.C. 706)
Plaintiff realleges paragraphs through fully stated herein.
The October 28, 2016 decision the Secretary the Army final agency
decision for purposes APA review.
The October 28, 2016 decision arbitrary, capricious, abuse discretion, and
otherwise not accordance with law, the injury Sgt. Berry sustained the Fort Hood attack
satisfied all criteria for being awarded the Purple Heart, including being sufficiently proximately
caused Hasan gunfire. The decision also unsupported substantial evidence.
Plaintiff has been irreparably harmed the unlawful decision and will continue irreparably harmed unless and until the decision set aside and Defendants are enjoined
from denying Sgt. Berry Purple Heart.
Plaintiff has adequate remedy law.
WHEREFORE, Plaintiff respectfully requests that the Court: (1) declare the Secretary
the Army October 28, 2016 decision arbitrary, capricious, abuse discretion, and
otherwise not accordance with the law; (2) declare that the denial Plaintiff application was
not supported substantial evidence; (3) enjoin Defendants from continuing deny Sgt. Berry Purple Heart; (4) award Plaintiff attorneys fees and other litigation costs reasonably incurred this action; and (5) grant Plaintiff such other relief the Court deems just and proper.
Case 1:17-cv-02112 Document Filed 10/12/17 Page
Dated: October 12, 2017
Respectfully submitted,
/s/ Lauren Burke
Lauren Burke
D.C. Bar No. 1028811
425 Third Street SW, Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff
Case 1:17-cv-02112 Document Filed 10/12/17 Page