Stewart v. McHugh, Case No. 4:15cv508-WS/CAS

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
Writing for the CourtCHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
PartiesPAUL L. STEWART, Petitioner, v. JOHN M. McHUGH, Secretary of the Army, Respondent.
Decision Date29 August 2016
Docket NumberCase No. 4:15cv508-WS/CAS

PAUL L. STEWART, Petitioner,
v.
JOHN M. McHUGH, Secretary of the Army, Respondent.

Case No. 4:15cv508-WS/CAS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

August 29, 2016


REPORT AND RECOMMENDATION

Petitioner, proceeding pro se, filed a petition on October 21, 2015, seeking judicial review under the Administrative Procedure Act, 5 U.S.C. §§ 701-706, of the denial of his request to correct his military records.1 ECF No. 1. The asserted purpose of the petition is review of an order entered by the Army Board for the Correction of Military Records [ABCMR] on July 16, 2015, denying Petitioner's request to correct his military records. Id. at 2; see also ECF No. 16 at 3. However, the underlying goal

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of the petition is to overturn Petitioner's court martials. ECF No. 1 at 4. Petitioner contends that "both court-martials violated [his] fundamental Constitutional rights" and should be declared "void" and "be removed." Id. at 4.

Respondent filed a motion to dismiss or, in the alternative, motion for summary judgment on February 12, 2016. ECF No. 12. Because Respondent's motion included, and cited to, various exhibits,2 the motion was construed as a motion for summary judgment. ECF No. 15. Petitioner was provided an opportunity to submit an "amended" response to the motion for summary judgment, or he was advised that he could file a notice indicating his desire to stand on the response already filed.3 Id. Petitioner filed an amended response to Defendant's motion for summary judgment on March 29, 2016. ECF No. 16. The motion is ready for a ruling.

One week later, on April 5, 2016, Petitioner filed a motion requesting that a discovery period be provided prior to ruling on summary judgment. ECF No. 17. Petitioner wanted discovery so that he could obtain "the

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complete record of courts-martial for both trials including all documents disclosed to the prosecution during discovery, as well as records of disclosure by the defense, phone calls and letters and the composition of the members of the court by race, rank, ethnicity and age." ECF No. 17 at 4. He has also requested the "minutes of the deliberation and any other records that might be deemed relevant or exculpatory." Id. Respondent opposed the motion, arguing that discovery was unnecessary beyond providing the Administrative Record for Petitioner's case because "facts outside the administrative record are simply irrelevant to the disposition of Petitioner's claim." ECF No. 18 at 2. Petitioner's motion was denied, ECF No. 19, and his motion for reconsideration was granted only to the extent that Petitioner's arguments were considered. ECF No. 21. The Order denying discovery would not be vacated because the standard of review under the Administrative Procedure Act [APA] is whether an "adjudication was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,' as specified in 5 U.S.C. § 706(2)(A)." Camp v. Pitts, 411 U.S. 138, 142, 93 S. Ct. 1241, 1244, 36 L. Ed. 2d 106 (1973) (cited in ECF No. 18 at 2). "In applying that standard, the focal point for judicial review should be the administrative record already in existence, not some

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new record made initially in the reviewing court." Camp, 411 U.S. at 142, 93 S. Ct. at 1244.

Thus while certain circumstances may justify going beyond the administrative record, a court conducting a judicial review is not "generally empowered" to do so. In the instant case, we find nothing that would necessitate expanding the court's review beyond the administrative record. The record itself adequately explains the agency's decision and shows that it weighed the relevant factors.

Pres. Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Engineers, 87 F.3d 1242, 1246-47 (11th Cir. 1996) (holding "[t]he District Court did not err in limiting its review to the administrative record and so did not abuse its discretion by granting a protective order prohibiting any discovery."). In general, a "party seeking discovery has 'a heavy burden to show that supplementation is necessary.'" Kirkpatrick v. White, 351 F.Supp.2d 1261, 1272 (N.D. Ala. 2004) (quoting United States v. Amtreco, Inc., 806 F.Supp. 1004, 1006 (M.D. Ga. 1992)) (quoted in Georgia River Network v. U.S. Army Corps of Engineers, No. 4:10-CV-267, 2011 WL 2551044, at *2 (S.D. Ga. June 27, 2011) (noting "the Court is typically confined to the administrative record"). Petitioner did not meet that burden and did not show the need for further discovery.

Legal standards governing a motion for summary judgment

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"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). Summary judgment is proper "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The "party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2553. The non-moving party must then show4 though affidavits or other Rule 56 evidence "that there is a

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genuine issue for trial" or "an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S. Ct. at 2554; Beard v. Banks, 548 U.S. 521, 529, 126 S. Ct. 2572, 2578, 165 L. Ed. 2d 697 (2006).

An issue of fact is "material" if it could affect the outcome of the case. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1259 (11th Cir. 2004) (citations omitted). Additionally, "the issue of fact must be 'genuine'" and the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986) (other citations omitted). "The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (quoting Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000)).

"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). All "justifiable inferences" must be resolved in the light most favorable to the nonmoving party, Beard, 548 U.S. at 529, 126 S. Ct. at 2578 (noting the distinction "between evidence of disputed facts and disputed matters of professional judgment."),5 but "only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoted in Ricci v. DeStefano, 557 U.S. 557, 586, 129 S. Ct. 2658, 2677, 174 L. Ed. 2d 490 (2009)). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S. Ct. at 1356 (other citation omitted).

The Administrative Record6

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Petitioner enlisted in the United States Army on March 27, 1951, at the age of 17 "with parental consent." ECF No. 13, AR 004, AR 052; ECF No. 16-1 at ¶3 (Petitioner's affidavit).7 After his initial training period, Petitioner was assigned to Camp Edwards, Massachusetts. AR 060; ECF No. 16-1 at ¶3. Petitioner was absent without leave (AWOL) on five occasions: June 18-25, 1951; July 2-9, 1951; August 9 - September 15, 1951; October 10-27, 1951; November 13, 1951 - August 1, 1952." AR 60, ¶4; AR 146, ¶ 6(b); AR 148. The record does not disclose what, if any disciplinary action was taken for the first four absences, but following his fifth AWOL (during which he was absent for "8 months and 29 days"), he was convicted on September 3, 1952, in a general court-martial held at Fort Dix, New Jersey. AR 060, ¶ 4. Petitioner was sentenced to hard labor confinement for six months, forfeiture of all pay and allowances, and a bad conduct discharge.8 Doc 1-4, p. 25; AR 060, ¶ 4. Several days later on September 9, 1952, the sentence was suspended as to the bad conduct

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discharge, AR 142, and Petitioner was granted clemency in order to have "the opportunity to rehabilitate himself for military service and earn an honorable discharge." AR 146, ¶ 6(c).

Following completion of the confinement portion of his sentence, Petitioner was transferred to Korea for a tour of duty. AR 060, ¶ 5. Petitioner states in his affidavit that he "served honorably in Korea for approximately 13 months, but came down with a rare form of malaria." ECF No. 166-1 at ¶ 3. After Petitioner completed that tour of duty, he was transferred to Fort Dix, New Jersey, with the 879th Field Artillery Battalion. AR 060, ¶ 5. Once again, Petitioner was AWOL from his unit from September 21, 1954, until April 15, 1955. AR 167, 171. Petitioner asserts that he "was hopelessly addicted to heroin when he returned to the [United] States and he again went AWOL." ECF No. 16-1 at ¶ 3. Petitioner was court-martialed for a second time and convicted of the offense of AWOL on April 27, 1955. AR 060, ¶ 6; AR 167. He was again sentenced to hard labor confinement, forfeiture of all pay and allowances, and to a dishonorable discharge (DD). AR 060, ¶...

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