Downey v. U.S. Dep't of the Army

CHRISTOPHER P. DOWNEY, Plaintiff - Appellant, v. UNITED STATES DEPARTMENT OF THE ARMY; ERIK FANNING,Secretary of the United States Department of the Army, Defendants - Appellees.

No. 15-1870

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: December 9, 2016

April 13, 2017

UNPUBLISHED

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:14-cv-01503-LMB-TCB)

Before GREGORY, Chief Judge, MOTZ, Circuit Judge, and Richard D. BENNETT, United States District Judge for the District of Maryland, sitting by designation.

Affirmed by unpublished opinion. Chief Judge Gregory wrote the opinion, in which Judge Motz and Judge Bennett joined.

ARGUED: Erin Jude Kuenzig, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, for Appellant. Antonia Marie Konkoly, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellees. ON BRIEF: Richard Thompson, Erin E. Mersino, THOMAS MORE LAW CENTER, Ann Arbor, Michigan; Samuel C. Moore, LAW OFFICE OF SAMUEL C. MOORE, PLLC, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

GREGORY, Chief Judge:

Lieutenant Colonel Christopher T. Downey appeals the district court's grant of summary judgment on his claims under the Administrative Procedure Act ("APA"), 5 U.S.C. § 702 et seq., in favor of the United States Department of the Army and John M. McHugh, Secretary of the Department of the Army ("Appellees"), and dismissal of his due process claims. Downey alleged that the Army Board for Correction of Military Records (the "Board") arbitrarily and capriciously denied his request to remove a record from his personnel file that stated he was found guilty of assault. Downey also alleged that the procedures used to determine his guilt violated the Due Process Clause. For the reasons stated below, we affirm the district court's judgment.

I.

The district court's opinion sets forth the extensive procedural history of this case, so we do not relay it here. See Downey v. U.S. Dep't of the Army, 110 F. Supp. 3d 676 (E.D. Va. 2015). We recount only the relevant factual background.

On April 14, 2012, the 6th Squadron, 6th Cavalry, 10th Combat Aviation Brigade held a ball where Downey, Commander of the Brigade, was the commanding officer. During the ball, a soldier informed Downey of allegedly inappropriate behavior on the dance floor. The soldier stated that he saw Captain Katherine Robinson and Second Lieutenant Heather Parsons dancing and kissing. The soldier also stated that he believed the couple was being photographed.

Downey approached two individuals holding cameras who he believed were photographing the couple. Downey attempted to lower Specialist Jeremy Reuter's camera by pushing it down, but instead knocked the camera into Reuter's face. The camera struck Reuter in the nose, causing him to fall to the floor. Downey approached Robinson and Parsons and told them to "watch their behavior and what they were doing was unacceptable and placed them in a compromising situation." J.A. 98. When Downey left the dance floor, he spoke to Captain Thomas Jones, who saw what transpired, and Downey explained that he believed Reuter was taking inappropriate photographs of Robinson and Parsons. Downey explained that in 2011 a male officer in his unit videotaped several female officers who were showering and Downey's intention was to prevent any possible exploitation of Robinson and Parsons. Jones examined Reuters's photos and reported to Downey that he did not see any inappropriate pictures. In the meantime, Reuter was taken to the hospital and was diagnosed with a concussion and fractured nose.¹

After Downey's exchange with Robinson and Parsons, Command Sergeant Major Patrick McGuire approached the couple and got into a heated discussion with Robinson, in which he allegedly called her a disgrace and an abomination. McGuire eventually pushed Robinson to the ground and walked away. The following evening, Downey spoke to both Parsons and Robinson. He told Parsons that the unit had to move past theevent, and told Robinson to forget the incident with McGuire and that if she reported it, her career would be adversely affected. Downey also told them he had nothing against their sexual orientation.

On April 18, 2012, Major General Mark A. Milley, Downey's superior officer, assigned Colonel Paul Schlimm to investigate the incidents at the ball. After a thorough investigation, in which Schlimm interviewed Downey, Reuters, Robinson, Parsons, McGuire, and several other officers who witnessed the events, Schlimm determined that Downey committed an "assault consummated by a battery." J.A. 138. Schlimm also found that Downey violated Army Directive 2011-01—the repeal of 10 U.S.C. § 654, commonly known as "Don't Ask, Don't Tell"—by enforcing the public displays of affection policy against Robinson and Parsons, but not against heterosexual couples engaged in similar behavior.² Schlimm also found that Downey may have engaged in obstruction of justice by advising Robinson not to report McGuire's conduct.

Based on Schlimm's recommendation, Major General Milley initiated nonjudicial punishment ("NJP") proceedings against Downey pursuant to Article 15 of the Uniform Code of Military Justice ("UCMJ"), 10 U.S.C. § 815, for the offense of assault consummated by a battery. An Article 15 proceeding is a non-adversarial, summary proceeding at which a commanding officer may impose discipline on his subordinates "for minor offenses without the intervention of a court-martial." 10 U.S.C. § 815(b).Service-members have the option to refuse an Article 15 proceeding and demand an adversarial court-martial. Id. § 815(a); see Guerra v. Scruggs, 942 F.2d 270, 272 (4th Cir. 1991). Courts-martial, which are nearly always presided over by lawyer-judges with counsel for both the prosecution and the defense, generally resemble judicial proceedings. Middendorf v. Henry, 425 U.S. 25, 31 (1976) (referring to general and special courts-martial); accord 10 U.S.C. § 816. Article 15 proceedings provide fewer procedural rights than trials by court-martial, but limit the nature of punishments imposed. See Dwight H. Sullivan, Overhauling the Vessel Exception, 43 Naval L. Rev. 57, 58-59 (1996) (identifying procedural rights not afforded during Article 15 proceeding, including legal representation, suppression of unconstitutionally obtained evidence, confrontation of one's accuser, and decision by a panel of disinterested service members); see also Parker v. Levy, 417 U.S. 733, 750 (1974) (noting that Article 15 proceedings imposed limited discipline, including suspension, reduction in pay grade, and arrest in quarters for not more than thirty days).

Upon notice of the Article 15 proceeding, Downey requested to speak to a military lawyer, who allegedly told him that if he demanded a court-martial, he would be required to hire a civilian lawyer. Downey chose to submit to the Article 15 proceeding and the military lawyer allegedly recommended that she not appear as a spokesperson on his behalf because he would seem weak. On May 30, 2012, during the Article 15 hearing, Milley determined that Downey was guilty of assault consummated by battery in violation of UCMJ Article 128. Milley found him not guilty of obstruction of justice and dismissed a disorderly conduct charge. Downey appealed Milley's assault finding, whichwas denied on June 27, 2012. On June 4, 2012, Milley completed an officer evaluation report for Downey, giving him a satisfactory performance rating—a level below his usual "outstanding performance" rating—and noting that he was relieved of his command position due to his poor judgment at the ball. On June 8, 2012, Milley issued Downey letters of reprimand for the assault against Reuter and for violating Army Directive 2011-01. Milley also issued a letter that stated he lost confidence in Downey's ability to command the Brigade and relieved Downey from his position.

On August 16, 2013, Downey applied to the Board for removal of the Article 15 record. Downey presented several arguments in his petition, including: the elements of assault were not met because he used lawful force and the incident was an accident; there were no facts demonstrating that his hand or fist came in contact with Reuter; x-ray reports demonstrated that Reuter's nose was not fractured;³ he was not given the right to present a full defense; Milley did not use the reasonable doubt standard when finding him guilty; the refusal to produce a transcript of the Article 15 hearing hindered his ability to file a meritorious appeal and obtain effective assistance of counsel; the letter of reprimand regarding the assault was not supported by the evidence because the majority of the Article 15 hearing discussed his alleged violation of Army Directive 2011-01;⁴ the finding that he violated the directive was legally incorrect; the repeal of Don't Ask Don'tTell was not an appropriate subject for a letter of reprimand because his conduct did not involve denying homosexuals the right to serve in the armed forces; Robinson and Parsons violated the PDA standard; he was not acting out of an intent to discriminate against the women, but to protect them from exploitation; the publicity surrounding the repeal of Don't Ask Don't Tell motivated the decision to find him guilty of assault; and he had an outstanding military career.

The Secretary of the Department of the Army, acting through the Board, is authorized to correct any Army military record when he "considers it necessary to correct an error or remove an injustice." 10 U.S.C. § 1552(a)(1). An application for correction of a military record is considered by a panel of at least three Board members. 32 C.F.R. § 581.3(e)(3)(i). The Board members are charged with the responsibility to first "[r]eview all...