FILED
NOT FOR PUBLICATION
NOV 04 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHEN-LI SUNG, M.D., No. 14-15283
Plaintiff-Appellant, D.C. No.
1:13-cv-00024-JMS-KSC
v.
DENNIS D. DOYLE, Brigadier General, MEMORANDUM*
in his official capacity as Commander of
Tripler Army Medical Center; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, Chief Judge, Presiding
Argued and Submitted October 19, 2016
Honolulu, Hawaii
Before: WALLACE, FARRIS, and WATFORD, Circuit Judges.
Chen-Li Sung appeals from the district court’s entry of summary judgment
in the defendants’ favor. We conclude that the decision of the Army Board for
Correction of Military Records (ABCMR) not to change Sung’s military records
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Page 2 of 3
was supported by substantial evidence and was neither arbitrary nor capricious.
See Burns v. Marsh, 820 F.2d 1108, 1110 (9th Cir. 1987). (Notwithstanding
Sung’s resignation from the Army, we conclude that his appeal is not moot because
he seeks a correction of his military records to show that he had been reinstated
into the Army’s general surgery residency program prior to his resignation.)
1. Sung has not raised a triable issue as to whether the Army’s decision to
dismiss him from the residency program relied on impermissible military readiness
factors, as opposed to academic ones. The ABCMR determined that Sung’s
dismissal was based on “his regression as evidenced by his failure to complete
assignments and to convincingly show he was competent to practice
independently, without supervision as a surgeon.” That issue had dominated
Sung’s dismissal hearing, at which the program director and Sung’s probation
ombudsman testified that Sung arrived late to his rounds, was delinquent in
preparing for his most recent morbidity and mortality conference, and generally
did not display consistent competence as a surgeon. Sung himself testified at the
hearing to “breaks in discipline” and a failure to complete certain assignments in a
timely manner.
To support his claim that the Army’s decision instead relied on military
readiness factors, Sung identifies the program director’s memo relieving him from
Page 3 of 3
duty and isolated testimony by his probation ombudsman. Although the memo
mentioned that “deployment is almost certain” and that surgeons must be “ready to
perform in any environment,” the crux of the memo is the director’s determination
that Sung lacked “sufficient competence to enter practice without direct
supervision.” That conclusion is supported in the memo by Sung’s own
assessment that his performance was adequate only “60% of the time.” Likewise,
the ombudsman’s testimony primarily concerned whether Sung had the
competence to be a surgeon, and he discussed deployment only in response to a
single question on the subject.
2. Nor did Sung raise a triable issue as to whether the Army failed to
consider the testimony of the two psychiatrists he called at his dismissal hearing.
Each psychiatrist was questioned at length by several members of the dismissal
committee, and the ABCMR expressly referred to their testimony in its decision.
Moreover, the psychiatrists’ testimony did not compel the Army to retain Sung. In
fact, Sung’s treating psychiatrist repeatedly suggested that Sung’s performance
issues may have been unrelated to his depression, which is consistent with the
Army’s decision to dismiss him.
AFFIRMED.