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Judicial Watch • Berry v McCarthy purple heart opinion and order 02112

Berry v McCarthy purple heart opinion and order 02112

Berry v McCarthy purple heart opinion and order 02112

Page 1: Berry v McCarthy purple heart opinion and order 02112


Number of Pages:7

Date Created:August 23, 2018

Date Uploaded to the Library:August 23, 2018

Tags:Kreis, heart, hasan, 02112, purple, Berry, Injury, McCarthy, denial, decision, Opinion, Assistant, deputy, defendants, order, Secretary, plaintiff, board, document

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Case 1:17-cv-02112-CRC Document Filed 08/22/18 Page
Case No. 17-cv-2112 (CRC)
MARK ESPER, Secretary the Army, al.,
MEMORANDUM OPINION November 2009, Nidal Malik Hasan, Army medical officer, went shooting
spree Fort Hood, military post Texas, killing people and injuring others. Former
Army Staff Sergeant Joshua Berry was stationed Fort Hood that day and, during the attack,
was briefing room inside one its buildings. Hasan some point fired rounds just
outside that building. Berry told others the room get down the floor. then heard
bullets strike the room exterior metal doors, leapt over desk take cover and, doing so,
dislocated his shoulder.
Joshua father believes that his son who died 2013 should have received Purple
Heart for his injury. Unlike other military decorations, which are awarded only upon the
recommendation commander, the Purple Heart given any servicemember who meets
certain regulatory criteria. Army Reg. 600-8-22, 2.8(c). The Army regulations provide that
servicemember entitled the Purple Heart wounded the result terrorist attack
Pursuant Federal Rule Civil Procedure 25(d), Secretary Esper has been
automatically substituted for Ryan McCarthy, who longer serves Secretary.
Case 1:17-cv-02112-CRC Document Filed 08/22/18 Page
committed foreign terrorist organization. U.S.C. 1129a; Army Reg. 600-8-22,
Initially, the Army declined award the Purple Heart servicemembers injured
killed the Fort Hood attack because, though Hasan admitted that was inspired Al-Qaeda the Arabian Peninsula and was contact with one its senior recruiters, the terrorist group
was not understood formally behind the attack. But Congress clarified 2015 statute
that servicemembers injured during attacks inspired foreign terrorist organizations and
committed individuals who were communication with such organizations could qualify for
the Purple Heart. U.S.C. 1129a(b); Army Reg. 600-8-22, 2-8(b)(10)(b). turn, the
Secretary the Army determined that servicemembers injured killed the Fort Hood attacks
were eligible for the Purple Heart they met the other regulatory criteria. See Administrative
Record A.R. 79.
Shortly after that announcement, the plaintiff applied for his son receive the award.
The U.S. Army Decorations Board denied his application March 2015 the ground that the
attack did not directly cause Berry injury. A.R. doing so, relied email from
Fort Hood staff attorney stating that while was not certain believed that Hasan had not
shot the building where Berry was located. Id.
The Decorations Board informed the plaintiff its decision letter and explained that could apply the Army Board for Correction Military Records felt the decision was
unjust. did so. Along with his application for review, filed witness statements his son had
made investigators and statement from another individual indicating that Hasan had indeed
shot the building inside which Berry had been injured. A.R.
Case 1:17-cv-02112-CRC Document Filed 08/22/18 Page 2-to-1 vote, the Corrections Board recommended that Berry receive Purple Heart.
A.R. 10. The Board found clear that Berry injury met the basic medical criteria for award the Purple Heart i.e., that suffered qualifying wound during the attack. A.R. see
Army Reg. 600-8-22, 2.8(e). The real issue, the Board view, was the degree which the
enemy (i.e., the terrorist) caused his injury, A.R. necessary consideration under the Army
regulations, Army Reg. 600-8-22, 2.8(f). this point, the Board began citing the regulations examples injuries that would
warrant Purple Heart, including those incurred while making parachute landing from
aircraft that had been brought down enemy fire result vehicle accident caused enemy fire. Id. 2-8(i)(1). The Board observed that Berry injury was not obviously
analogous: the examples describe[d] circumstances under which the individual would not have
control over his her bod[y], while Berry was injured result his own decision leap
over the desk for cover. A.R. And yet, the Board explained, Berry would not have made that
decision but for the active shooter outside the building. Id. Though did not expressly
reconcile these competing points, the Board was evidently persuaded that the latter prevailed and
established causation. recommended that Berry granted Purple Heart. A.R. 10.
But few months later, the Deputy Assistant Secretary the Army exercising the
Secretary authority override the Correction Board recommendations found the
contrary. She registered her disagreement single paragraph one-page letter: have reviewed the findings, conclusions, and Board member recommendations.
find there not sufficient evidence grant relief. Therefore, under the authority [10 U.S.C. 1552], have determined that the facts not support conclusion
that his injury met the criteria for Purple Heart.
Case 1:17-cv-02112-CRC Document Filed 08/22/18 Page
Berry father challenges that denial under the Administrative Procedures Act APA claims that the Deputy Assistant Secretary decision was arbitrary, capricious, abuse
discretion, otherwise not accordance with law, and that was unsupported substantial
evidence. U.S.C. 706(2)(A), (E). The Court agrees that the decision violates the APA, and will remand this matter the Army for reconsideration.
Challenges agency decisions under the APA are properly resolved motions for
summary judgment which the parties have both filed here. Unlike with typical summary
judgment motion, however, the relevant question not whether the record creates material
dispute fact. Instead, the court job review the decision light the record before the
agency and decide whether complied with the APA. sure, courts are unusually deferential toward military decisions regarding
servicemembers records, including those related decoration. Kreis Sec Air Force, 866
F.2d 1508, 1514 (D.C. Cir. 1989). But the summary denial here fails even that generous
standard review. provides meaningful analysis only boilerplate determination that
the facts not support conclusion that [Berry injury met the criteria for Purple Heart.
A.R. Why not? Was there conflicting evidence regarding how immediate threat Hasan
posed Berry sat inside the building? Was the evidence clear but the Deputy Assistant
Secretary thought that Berry could have taken cover without injuring himself? did she read
the regulations categorically taking the Purple Heart off the table for servicemembers injured
while taking cover?
The denial letter provides hints. turn, the Court cannot meaningfully evaluate the
reasoning behind it. That enough warrant remand. The deference accorded military
personnel decisions does not totally shield them from review. See, e.g., Saint-Fleur McHugh,
Case 1:17-cv-02112-CRC Document Filed 08/22/18 Page Supp. 149, 157 (D.D.C. 2015). Rather, even military personnel decision owed
deference fails give reason that court can measure against the arbitrary
capricious standard the APA. Coburn McHugh, 679 F.3d 924, 929 (D.C. Cir. 2012)
(quoting Kreis, 866 F.2d 1514 15). Decisions that are utterly unreviewable must vacated arbitrary and capricious. Kreis, 866 F.2d 1514.
That the case here. the face eight-page Board recommendation that provided
reasoned basis for awarding Purple Heart, the Deputy Assistant Secretary summarily disagreed.
The Court could not grant deference that change course tried.
Not say that summary denials must always set aside under the APA. If, for
example, the Board had written denial decision and the Deputy Secretary summarily affirmed
it, the Court could fairly presume (even not with certainty) that she was adopting the Board
reasoning. that case, the agency path might reasonably discerned. Motor Vehicle
Mfrs. Ass the U.S., Inc. State Farm Mut. Auto. Ins. Co., 463 U.S. 27, (1983). The
Court would also more inclined uphold the denial were obviously supported the
record. not. Even not clearly incorrect, the denial least shaky ground. the
Corrections Board observed, injuries caused taking cover are not precisely like the examples
stated the Army regulations. But neither are they much like the examples injuries that
not suffice: for instance, those attributable [a]ccidents not related caused enemy
action for [s]elf inflicted wounds, except when the heat battle and not involving gross
negligence. Army Reg. 600-8-22, 2.8(h)(8) (9). The regulations also emphasize that strict
interpretation the requirement for the wound injury caused direct result hostile
action should not preclude the award being made deserving personnel. Id. 2.8(i).
Case 1:17-cv-02112-CRC Document Filed 08/22/18 Page minimum, Berry case presents more complicated issue causation whether
injury incurred while taking cover from gunfire outside building was caused the gunfire
than the Deputy Assistant Secretary summary denial suggests. The government arguments
that this issue was properly resolved against Berry are efforts rationalize the Army cursory
denial. The APA demands that the Army itself acting through its officers explain its
resolution the issue. See Pierce SEC, 786 F.3d 1027, 1034 (D.C. Cir. 2015) reviewing
court may not supply reasoned basis for agency action that the agency itself did not give
the record under review.
The Court unwilling, however, the extra step ordering that Berry awarded
Purple Heart. Rather, remand proper. Dickson Sec Defense, F.3d 1396, 1407 (D.C.
Cir. 1995) Where agency has failed explain the path has taken, have choice
but remand for reasoned explanation. (internal quotation omitted)). remand, the Army,
assuming wishes stick with its determination, must explain why Berry not entitled
Purple Heart and with sufficient clarity that court can measure the denial against the
arbitrary capricious standard the APA. Kreis, 866 F.2d 1514 15.
The Court will thus grant the plaintiff motion for summary judgment and deny the
defendants motion. separate order accompanies this memorandum opinion.
United States District Judge
Date: August 22, 2018
Case 1:17-cv-02112-CRC Document Filed 08/22/18 Page
Case No. 17-cv-2112 (CRC)
MARK ESPER, Secretary the Army, al.,
For the reasons stated the accompanying memorandum opinion,
ORDERED that Defendants Motion for Summary Judgment (ECF No. DENIED.
ORDERED that Plaintiff Cross-Motion for Summary Judgment (ECF No. 12)
United States District Judge
Date: August 22, 2018