Crumley v. United States

Case: 22-1232    Document: 39     Page: 1   Filed: 11/08/2022




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                MATTHEW T. CRUMLEY,
                   Plaintiff-Appellant

                             v.

                    UNITED STATES,
                    Defendant-Appellee
                  ______________________

                        2022-1232
                  ______________________

     Appeal from the United States Court of Federal Claims
 in No. 1:21-cv-00976-EGB, Senior Judge Eric G. Bruggink.
                  ______________________

                Decided: November 8, 2022
                 ______________________

     MATTHEW LEO EANET, Eanet, PC, Los Angeles, CA, for
 plaintiff-appellant.

     EBONIE I. BRANCH, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for defendant-appellee. Also represented by
 BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
 MCCARTHY.
                   ______________________
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 2                                             CRUMLEY   v. US



     Before MOORE, Chief Judge, LOURIE and PROST, Circuit
                           Judges.
 PROST, Circuit Judge.
     Matthew T. Crumley appeals an order of the U.S. Court
 of Federal Claims dismissing his complaint as barred by
 claim preclusion. We affirm.
                         BACKGROUND
                               I
      On November 20, 2010, Mr. Crumley—then an active-
 duty officer in the U.S. Air Force—was performing Honor
 Guard duties at a funeral when he stepped on artificial turf
 that, unbeknownst to him, covered an open grave. Injured
 in the fall, Mr. Crumley sought medical and legal assis-
 tance at Hanscom Air Force Base. On December 21, 2010,
 Mr. Crumley received a Letter of Admonishment (“LOA”)
 for allegedly disrespectful and uncooperative behavior dur-
 ing his interactions with Hanscom personnel. The LOA be-
 came the basis of an Unfavorable Information File (“UIF”)
 placed in Mr. Crumley’s official military personnel file.
 Mr. Crumley also received a Referral Education/Training
 Report (“Training Report”) dated August 2011, which noted
 his “disrespectful and unprofessional behavior” toward
 Hanscom personnel “for which he received a[n] [LOA].”
 App’x 1 65.
     In 2011, the Air Force conducted a reduction in force
 (“RIF”). In the September to October 2011 timeframe, the
 RIF Retention Board non-selected Mr. Crumley for reten-
 tion.   He received an honorable discharge effective
 March 1, 2012.




       1   “App’x” refers to Mr. Crumley’s Appendix.
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 CRUMLEY   v. US                                              3



                               II
     On December 21, 2012, Mr. Crumley applied to have
 the Air Force Board for the Correction of Military Records
 (“Board”) remove the LOA, UIF, and negative language in
 the Training Report from his records. The Board denied
 Mr. Crumley’s application. Mr. Crumley then sought re-
 view by a special board under 10 U.S.C. § 1558. The special
 board likewise denied Mr. Crumley’s requested relief.
      On March 28, 2016, Mr. Crumley brought an action in
 the Court of Federal Claims for wrongful discharge—seek-
 ing reinstatement, correction of his military records, and
 back pay. Crumley v. United States, 133 Fed. Cl. 607, 609,
 613 (2017) (“Crumley II”). 2 He alleged that the LOA, UIF,
 and Training Report suffered from various procedural de-
 fects and that the RIF Retention Board improperly consid-
 ered them. Id. at 612. The government moved for
 judgment on the administrative record, and the Court of
 Federal Claims granted it. The court determined that
 “[t]he procedural defects [that Mr.] Crumley has alleged
 are immaterial to the . . . special board’s decision.” Id. Ac-
 cording to the court:
     [Mr.] Crumley had notice, multiple chances to re-
     spond, a clear understanding of the contents of the
     LOA, UIF, and [Training] Report, and suffered no
     substantial deprivation of rights as a result. Ac-
     cordingly, [he] has failed to show that the . . . spe-
     cial board’s decision was arbitrary, capricious,
     contrary to law, or unsupported by substantial evi-
     dence. The RIF [Retention] [B]oard properly



     2  The Court of Federal Claims had previously dis-
 missed an earlier-filed complaint for lack of jurisdiction be-
 cause Mr. Crumley had not yet sought special-board
 review. Crumley v. United States, 122 Fed. Cl. 803 (2015)
 (“Crumley I”).
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 4                                             CRUMLEY   v. US



     considered the LOA, UIF, and [Training] Report
     and was well within its discretion to non-select
     [Mr.] Crumley for retention.
 Id. at 613. Mr. Crumley appealed the Court of Federal
 Claims’ judgment to this court, and we affirmed. Crumley
 v. United States, 738 F. App’x 1020 (Fed. Cir. 2018) (“Crum-
 ley III”) (nonprecedential).
                              III
      In July 2019, Mr. Crumley again applied for Board cor-
 rection of his military records. He asserted that, while lit-
 igating Crumley II, he learned that the Training Report
 “never actually became a part of” his official military per-
 sonnel file and was therefore “erroneously considered by
 the RIF Retention Board.” App’x 78. The Air Force Eval-
 uation/Recognition Programs Administrator prepared an
 advisory opinion dated May 25, 2020, that recommended
 denying the application, and on May 26, 2020, the Board
 informed Mr. Crumley that he had thirty days to comment
 on the advisory opinion or provide additional evidence sup-
 porting his request. Mr. Crumley maintains that he timely
 commented on the advisory opinion via written correspond-
 ence dated June 25, 2020 (still within the thirty-day win-
 dow). Appellant’s Br. 20 (citing App’x 94–97). Regardless,
 on June 3, 2020—before the comment window closed—the
 Board considered his application in an executive session
 and voted against correcting the record. And, on July 15,
 2020, the Board issued its final decision, denying
 Mr. Crumley’s application for the reasons set forth in the
 advisory opinion while maintaining that it had not received
 comments from Mr. Crumley regarding the advisory opin-
 ion.
     In February 2021, Mr. Crumley brought another action
 in the Court of Federal Claims—again for wrongful dis-
 charge, and again seeking reinstatement and back pay.
 This time, however, he alleged—as examples of procedural
 defects justifying his requested relief—both that (1) the
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 CRUMLEY   v. US                                              5



 Training Report was never in his official military personnel
 file, so the RIF Retention Board improperly considered it;
 and (2) the Board prematurely denied his July 2019 appli-
 cation by failing to wait for and consider his timely com-
 ments on the advisory opinion. The government moved
 under Court of Federal Claims Rule 12(b)(6) to dismiss the
 complaint as barred by claim preclusion based on the final
 judgment in Crumley II.
      The Court of Federal Claims agreed with the govern-
 ment and dismissed the complaint as barred by claim pre-
 clusion. It first set forth the three requirements for claim
 preclusion—that (1) the parties are identical or in privity;
 (2) the first suit proceeded to a final judgment on the mer-
 its; and (3) the second claim is based on the same set of
 transactional facts as the first (i.e., the claims share a com-
 mon “nucleus of operative facts”). Crumley v. United
 States, No. 21-976C, 2021 WL 4438547, at *4 (Fed. Cl.
 Sept. 28, 2021) (“Crumley IV”) (citing Ammex, Inc. v.
 United States, 334 F.3d 1052, 1055 (Fed. Cir. 2003)). Be-
 cause Mr. Crumley did not dispute that the first two re-
 quirements were met, the court focused on the third:
 whether the instant claim shared a common nucleus of op-
 erative facts with that in Crumley II. The court concluded
 that it did:
     In both cases, [Mr.] Crumley alleged facts that re-
     late to the same series of events, which occurred at
     the same time and which are all related in origin.
     The facts alleged here and in Crumley II are based
     upon the RIF [Retention] Board’s review of his mil-
     itary record, including the LOA, UIF, and Training
     Report, the [RIF Retention Board]’s decision to
     non-select him for retention, and the [Board]’s de-
     nial of his request for relief from discharge. Fur-
     ther, in both cases, plaintiff sought the same relief:
     reinstatement, correction of his military records,
     and back pay.
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 6                                              CRUMLEY   v. US



 Id.
      The Court of Federal Claims also rejected Mr. Crum-
 ley’s argument that, because the alleged facts concerning
 consideration of the Training Report and premature denial
 of the July 2019 application were discovered or arose after
 his initial complaint in Crumley II, claim preclusion should
 not apply. The court acknowledged that “new facts that are
 materially relevant to the claim or issue” may supply a ba-
 sis for avoiding claim preclusion. See id. at *5 (cleaned up).
 But, in its view, these alleged facts were not materially rel-
 evant to Mr. Crumley’s wrongful-discharge claim because
 they could not “affect the outcome of the suit under the gov-
 erning law.” 3 Id. (cleaned up).
     As to the Training Report, the court noted that it con-
 tained only one negative statement regarding the events
 underlying the LOA: “During this period, [Mr.] Crumley
 displayed disrespectful and unprofessional behavior to-
 ward” Hanscom personnel “for which he received a[n]
 [LOA].” Id. at *6 (quoting App’x 65). But the LOA and
 UIF—both part of Mr. Crumley’s official military personnel
 file—“include[d] far more details” of those events. Id. In-
 deed, the LOA itself contained the very same negative in-
 formation: “Your unprofessional and immature behavior
 toward” Hanscom personnel “is inexcusable.” Id. (quoting
 App’x 55). Accordingly, “[b]ecause the same information
 included in the Training Report was also included in the


       3  The Court of Federal Claims also determined that
 the alleged fact concerning the Training Report was not
 “new” in the relevant sense because Mr. Crumley discov-
 ered it years earlier while litigating Crumley II and there-
 fore could have raised it in that litigation. Crumley IV,
 2021 WL 4438547, at *5. As we discuss below, because
 Mr. Crumley’s failure to challenge the court’s materiality
 analysis suffices to affirm, we need not consider this aspect
 of the court’s decision.
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 CRUMLEY   v. US                                            7



 LOA, the Training Report alone could not have affected the
 outcome of the [RIF Retention] [B]oard’s decision”; there-
 fore, whether it was included in Mr. Crumley’s official mil-
 itary personnel file was not material to his wrongful-
 discharge claim. Id.
      As to the Board’s alleged premature denial of the July
 2019 application, the court’s reasoning flowed from its de-
 termination regarding the Training Report. Mr. Crumley
 based his July 2019 application on the same Training Re-
 port allegation: because it wasn’t in his official military
 personnel file, it was improperly considered. But, because
 that allegation wasn’t material, neither was the alleged
 premature denial of his July 2019 application. See id. at *7
 (“Even if it was improper for the [Board] to consider [the
 July 2019] application . . . without waiting for [Mr. Crum-
 ley’s] response, it was error without injury as the substance
 of the Training Report was already before the RIF [Reten-
 tion] [B]oard from other documents.”). The court therefore
 dismissed Mr. Crumley’s complaint as barred by claim pre-
 clusion.
    Mr. Crumley timely appealed. We have jurisdiction
 under 28 U.S.C. § 1295(a)(3).
                         DISCUSSION
     We review de novo the Court of Federal Claims’ dis-
 missal for claim preclusion. E.g., Cunningham v. United
 States, 748 F.3d 1172, 1175 (Fed. Cir. 2014) (referring to
 claim preclusion as “res judicata”).
      Mr. Crumley’s main argument against claim preclu-
 sion emphasizes that the alleged facts underlying this case
 are “new” because they were discovered or arose after his
 initial complaint in Crumley II. The Court of Federal
 Claims acknowledged that “new facts” may render a second
 claim not precluded. See id. at *5 (cleaned up). But, ac-
 cording to the court, being new wasn’t enough; new alleged
 facts also needed to be material. See id.; see also Whole
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 8                                               CRUMLEY   v. US



 Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2305 (2016)
 (endorsing the approach outlined in section 24 of the Re-
 statement (Second) of Judgments, which “notes that devel-
 opment of new material facts can mean that a new case and
 an otherwise similar previous case do not present the same
 claim” (emphasis added)), abrogated on other grounds by
 Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228
 (2022); Lucky Brand Dungarees, Inc. v. Marcel Fashions
 Grp., Inc., 140 S. Ct. 1589, 1596 (2020) (“Events that occur
 after the plaintiff files suit often give rise to new material
 operative facts that in themselves, or taken in conjunction
 with the antecedent facts, create a new claim to relief.”
 (emphasis added) (cleaned up)). And, in the court’s view,
 Mr. Crumley’s purportedly new alleged facts weren’t mate-
 rial. Crumley IV, 2021 WL 4438547, at *6–7.
      Mr. Crumley, however, doesn’t challenge the Court of
 Federal Claims’ materiality analysis. For example, he
 doesn’t argue that the court erred by requiring that his
 “new” alleged facts be material. Nor does he argue that
 those facts are material. He simply says nothing on the
 subject. Given that the court’s claim-preclusion determi-
 nation rested on its materiality analysis—regardless of
 whether Mr. Crumley’s alleged facts were new—his failure
 to challenge (or even acknowledge) that analysis on appeal
 is conspicuous. 4 As the appellant, it fell to Mr. Crumley to
 demonstrate error in the Court of Federal Claims’



     4    It’s all the more conspicuous given that (1) the
 Court of Federal Claims noted that Mr. Crumley’s response
 to the government’s motion to dismiss “d[id] not address
 the issue of materiality,” Crumley IV, 2021 WL 4438547,
 at *5 n.3, even though the government’s motion raised the
 issue; and (2) after the government’s brief in this appeal
 called out this same deficiency in Mr. Crumley’s opening
 brief, e.g., Appellee’s Br. 15–16, 22–23, he declined to file a
 reply brief.
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 CRUMLEY   v. US                                             9



 judgment. See, e.g., SmithKline Diagnostics, Inc. v. Helena
 Labs. Corp., 859 F.2d 878, 892 (Fed. Cir. 1988); accord In
 re Cmty. Home Fin. Servs. Corp., 32 F.4th 472, 484 (5th Cir.
 2022) (“On appeal, the burden is on the appellant[] to show
 error.” (cleaned up)); Hernandez v. Starbuck, 69 F.3d 1089,
 1093 (10th Cir. 1995) (“Because the appellant comes to the
 court of appeals as the challenger, he bears the burden of
 demonstrating the alleged error . . . .”). In this case, with-
 out any developed argument from Mr. Crumley on the ma-
 teriality issue—and there is none—he has given us no basis
 to disturb the Court of Federal Claims’ claim-preclusion de-
 termination and resultant dismissal. So we affirm.
                         CONCLUSION
     We have considered Mr. Crumley’s remaining argu-
 ments and find them unpersuasive. For the foregoing rea-
 sons, we affirm.
                         AFFIRMED