          In the United States Court of Federal Claims
                                           No. 16-717C
                                   (Filed: November 10, 2016)

                                             )
 DAVID O. EVANS,                             )
                                             )
                      Plaintiff,             )
                                             )       Motion for Discovery; RCFC 26;
 v.                                          )       Supplementation of the Administrative
                                             )       Record
 THE UNITED STATES,                          )
                                             )
                      Defendant.             )
                                             )

       Louise A. Paris, Canton, MI, for plaintiff.

       Sonia M. Orfield, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, with whom were Douglas K. Mickle, Assistant
Director, Robert E. Kirschman, Jr., Director, and Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, for defendant. Shanna L. Cronin, Major, Judge Advocate
General’s Corps, Litigation Division, Military Personnel Law, Department of the Army,
of counsel.

      ORDER DENYING PLAINTIFF’S MOTION FOR DISCOVERY AND TO
             SUPPLEMENT THE ADMINISTRATIVE RECORD

FIRESTONE, Senior Judge.

        Pending before the court in the above-captioned military pay case is plaintiff
David O. Evans’s motion for discovery (ECF No. 16), filed October 4, 2016. Mr. Evans
states that he is entitled to discovery pursuant to Rule 26 of the Rules of the Court of
Federal Claims (“RCFC”) in order to supplement the administrative record.

I.     BACKGROUND

      Mr. Evans filed his complaint in this case on June 20, 2016, seeking review of a
January 12, 2016 final decision by the Army Board of Corrections of Military Records
(“ABCMR”) denying his request for an upgrade of his other-than-honorable-conditions
discharge in 1960. 1 Mr. Evans has unsuccessfully sought review of his discharge in
1962, 1965, 1975, and 2001. Administrative Record (“AR”) 7-8, 401, 462, 476-77. Mr.
Evans’s requests for reconsideration of the ABCMR decisions were denied in 2012 and
2013. AR 7-8, 311, 350.

        In 2014, the Secretary of Defense issued a memorandum permitting review of
discharges that may have been triggered by post-traumatic stress disorder (“PTSD”) or
PTSD-related conditions prior to the current understanding of that disorder. AR 12, 25-
28. In 2015, Mr. Evans received a diagnosis of service-connected PTSD from Dr. John
F. Paul, Ph.D., a private clinical psychologist. AR 22-24. Based on this diagnosis and
the 2014 Secretary of Defense memorandum, Mr. Evans again requested the ABCMR to
upgrade his discharge. AR 18-21. As noted, the ABCMR denied the request on January
12, 2016. AR 2-15.

     Mr. Evans filed suit in this court on June 20, 2016, seeking $300,000 in disability
compensation, military back-pay, full Veterans Affairs benefits, and reversal of the
ABCMR’s decision not to upgrade his discharge. Compl. 2.

        On October 3, 2016, the government filed a motion to dismiss the complaint for
lack of jurisdiction pursuant to RCFC 12(b)(1). The government argues that this court
does not have jurisdiction over any of Mr. Evans’s claims. The government also filed the
administrative record containing Mr. Evans’s records before the ABCMR and argues, in
the alternative, that should the court possess jurisdiction, the government is entitled to
judgment on the administrative record pursuant to RCFC 52.1.

       In the pending motion for discovery, filed the day after the government submitted
its motion to dismiss, Mr. Evans states that he “wants to be allowed to question the
Department of the Army about its January 2016 decision,” Pl.’s Mot. 2, including the
“mental impressions of examiners of decision makers” or reasoning of the ABCMR
members, see Pl.’s Reply 3. Mr. Evans also seeks clarifications of certain points in the
ABCMR’s January 2016 decision, such as why the ABCMR did not address whether
other officers were willing to take Mr. Evans into their platoons, Pl.’s Mot. 2, or
arguments that certain misconduct “was a cry for psychological evaluation,” Pl.’s Reply
3. Mr. Evans also seeks Army data on discrimination and discharges for other military
service members. Pl.’s Reply 3-5. 2 Mr. Evans states that his proposed interrogatories

1
  According to Mr. Evans’s military records, he enlisted in the United States Army for a three-
year commitment in 1958 and was discharged in 1960 after receiving three nonjudicial
punishments, a special court-martial, and two summary courts-martial. Administrative Record
(“AR”) 547-48, 570-79, 582, 634.
2
  While Mr. Evans alleges in his complaint that racial discrimination was a “psychological
stressor” that contributed to the actions which led to his discharge, Compl. 38, the court reads
Mr. Evans’s discovery request regarding racial discrimination and discharges as including

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“demonstrate that supplementation is necessary because the existing record is insufficient
to do a meaningful judicial review.” See Pl.’s Reply 5 (citing Axiom Res. Mgmt., Inc. v.
United States, 564 F.3d 1374 (Fed. Cir. 2009)). 3

       The government argues that the court should deny Mr. Evans’s discovery motion
on the grounds that the court lacks jurisdiction to hear this case in its entirety. The
government also argues that Mr. Evans has not shown that supplementation of the record
is warranted. The government asserts that because the ABCMR considered the substance
of Mr. Evans’s claim and expressly addressed the issues raised in Mr. Evans’s motion for
discovery, there is no reason why the court cannot conduct meaningful judicial review.
The government also argues that Mr. Evans is not entitled to inquire into the “mental
process, that is, the thought process by which [the agency] made [its] decision.” Impresa
Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1339 (Fed. Cir.
2001) (citing United States v. Morgan, 313 U.S. 409, 422 (1941)); see also Citizens to
Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (“[W]here there are
administrative findings that were made at the same time as the decision . . . there must be
a strong showing of bad faith or improper behavior before such inquiry [into the mental
processes of administrative decisionmakers] may be made.”), abrogated on other
grounds by Califano v. Sanders, 430 U.S. 99 (1977).

      The court finds that oral argument is not necessary in order to rule on Mr. Evans’s
discovery motion.

II.      DISCUSSION

       The court agrees with the government that Mr. Evans is not entitled to discovery
regarding the ABCMR decision and thus the motion for discovery is DENIED.

      This order does not address the merits of the government’s motion to dismiss. It is
focused solely on the motion for discovery in which Mr. Evans seeks to supplement the
administrative record with interrogatories regarding the January 2016 ABCMR decision.
The court does not read any of Mr. Evans’s discovery requests as relating to the
government’s motion to dismiss the case on jurisdictional grounds, which could justify

discovery that does not relate directly to Mr. Evans’s treatment before the ABCMR. Because
discovery unrelated to Mr. Evans’s treatment before the ABCMR is plainly outside the scope of
this case, Mr. Evans’s request for discrimination and discharge data for other service members
must be denied. See RCFC 26(b). In addition, although the complaint does not state a claim for
discharge based on Title VII or another discrimination statute, the court notes that the Federal
Circuit has found that this court lacks jurisdiction over Title VII discrimination claims, which
must be brought in a federal district court. See, e.g., Baker v. United States, 642 F. App’x 989,
991 (Fed. Cir. 2016) (per curiam) (citations omitted).
3
    Mr. Evans also requests leave to file a supplemental reply. The request is GRANTED.


                                                3
discovery with regard to the relevant jurisdictional facts. See, e.g., Lea v. United States,
592 F. App’x 930, 934 (Fed. Cir. 2014) (“[W]hen a motion to dismiss challenges a
jurisdictional fact alleged in a complaint, a court may allow discovery in order to resolve
the factual dispute.” (quoting Fairholme Funds Inc. v. United States, 114 Fed. Cl. 718,
720-21 (Fed. Cl. 2014) and also citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
351 n.13 (1978))). Instead, Mr. Evans’s discovery request is focused on the merits of his
case. Mr. Evans specifically “requests that the Court limit its ruling to [his] Discovery
Motion and not rule on the jurisdiction issues or substantive issues until after the
scheduled hearing occurs.” Pl.’s Reply 1.

        Generally, this court’s “review of a military corrections board is limited to the
administrative record” compiled by the agency. Walls v. United States, 582 F.3d 1358,
1368 (Fed. Cir. 2009) (citing Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006)).
Rule 52.1 of the Rules of the United States Court of Federal Claims (“RCFC”) provides
for judgment on the administrative record. Unlike the standard for a motion for summary
judgment, “genuine issues of material fact do not preclude a judgment on the
administrative record.” Young v. United States, 497 F. App’x 53, 59 n.8 (Fed. Cir. 2012)
(citing Bannum v. United States, 404 F.3d 1346, 1355-56 (Fed. Cir. 2005)). Instead, the
court resolves questions of fact based on the administrative record. Id. (citing Bannum,
404 F.3d at 1356).

        Under established precedent in the Federal Circuit, this court will not disturb or
overturn the decision of the corrections board unless it is “arbitrary, capricious,
unsupported by substantial evidence, or contrary to law.” Lewis v. United States, 458
F.3d 1372, 1376 (Fed. Cir. 2006) (citation omitted). Ordinarily in military review cases
the court is largely concerned with whether the decision is procedurally fair and
supported by “substantial evidence” to show that it is not materially wrong. Heisig v.
United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983). The corrections board decision
must be sufficiently detailed for the court to ascertain the reasoning behind the denial of
relief to the applicant. See Buchanan v. United States, 621 F.2d 373, 383 (Ct. Cl. 1980).

        Because the court’s review of a corrections board decision is limited to the record
and not de novo, the Supreme Court and the Federal Circuit have held that “parties’
ability to supplement the administrative record is limited . . . to guard against courts using
new evidence to ‘convert the ‘arbitrary and capricious’ standard into effectively de novo
review.’” Axiom, 564 F.3d at 1379-80 (citations omitted). If the administrative record
before the court is inadequate, “the proper course, except in rare circumstances, is to
remand to the agency for additional investigation or explanation.” Fla. Power & Light
Co. v. Lorion, 470 U.S. 729, 744 (1985). Therefore, supplementation of the record is
“limited to cases in which ‘the omission of extra-record evidence precludes effective
judicial review.’” Axiom, 564 F.3d at 1380 (citation omitted). This is particularly
important in military cases where the Federal Circuit has stated that “courts cannot
substitute their judgment for that of the military departments when reasonable minds


                                              4
could reach differing conclusions on the same evidence.” Heisig, 719 F.2d at 1156. Put
another way, this court does not sit as a “super correction board.” Skinner v. United
States, 594 F.2d 824, 830-31 (Ct. Cl. 1979). Tested by these standards, Mr. Evans’s
motion for discovery fails.

        The eighteen proposed interrogatories Mr. Evans has propounded are aimed at
demonstrating that the ABCMR failed to either consider or discuss facts that Mr. Evans
believes are favorable to his claims. The interrogatories also seek to probe the mental
processes of the ABCMR members. None of these areas are appropriate for discovery
under the standards described above. For example, Mr. Evans asks why the ABCMR did
not address his arguments that other officers wrote positive reports and were willing to
take him into their platoons, that Mr. Evans suffered severe psychological distress and
should have received a psychological evaluation or should have been referred to a
disability board, and that his rights were not protected during the separation process.
Mr. Evans also seeks information about his neuropsychiatric examination and nonjudicial
punishments and courts martial, and more specific information about individuals referred
to in the record. Finally, Mr. Evans requests data on incidents of racial discrimination
related to discharges and the number of discharge upgrades that have been granted in the
past two years.

        Assuming the court has jurisdiction over the merits of Mr. Evans’s case, the court
will review the record before the ABCMR to determine whether its decision is supported
by the evidence in the record. If the decision is not adequately explained or fails to
address important facts the proper course will be to remand to the agency. Fla. Power &
Light, 470 U.S. at 744. 4 In this regard, Mr. Evans has not identified any evidence that
was improperly or inadvertently left out of the record. Linc Gov’t Servs., LLC v. United
States, 95 Fed. Cl. 155, 158 (2010) (explaining distinction “between materials proffered
to ‘supplement’ or to ‘complete’ the administrative record”). Rather, the focus of Mr.
Evans’s discovery is on the adequacy of the “explanation” of the ABCMR’s decision.
Where discovery requests involve supplementing the administrative record with materials
that could encourage de novo review by the court, the motion to supplement must be
denied. See Riser v. United States, 93 Fed. Cl. 212, 217-18 (Fed. Cl. 2010).

III.   CONCLUSION

      For the reasons above, the court finds that Mr. Evans has failed to show that
discovery is appropriate or that supplementation of the administrative record is necessary.
Accordingly, Mr. Evans’s motion for discovery or to supplement the record is DENIED.


4
 There are no allegations of fact to suggest that the ABCMR in reviewing Mr. Evans’s case
engaged in bad faith. Therefore, the exception for discovery into mental processes identified in
Impresa, 238 F.3d at 1338-39, does not apply.


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      Mr. Evans shall file his response to the government’s motion and any cross-
motion for judgment on the administrative record pursuant to RCFC 52.1 by
December 9, 2016.

      The government shall file its reply in support of its motion and its response to
Mr. Evans’s cross-motion for judgment on the administrative record by January 9, 2017.

      Mr. Evans shall file his reply in support of his cross-motion for judgment on the
administrative record by February 10, 2017.

      IT IS SO ORDERED.



                                                         s/Nancy B. Firestone
                                                         NANCY B. FIRESTONE
                                                         Senior Judge




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