UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HOWARD M. BERRY,

Plaintiff,

v. Case No. 17-cv-2112 (CRC)

MARK ESPER, Secretary of the Army, 1 et al.,

Defendants.

MEMORANDUM OPINION

On November 5, 2009, Nidal Malik Hasan, an Army medical officer, went on a shooting

spree at Fort Hood, a military post in Texas, killing 13 people and injuring 30 others. Former

Army Staff Sergeant Joshua Berry was stationed at Fort Hood that day and, during the attack,

was in a briefing room inside one of its buildings. Hasan at some point fired 30 to 40 rounds just

outside that building. Berry told others in the room to get down on the floor. He then heard

bullets strike the room’s exterior metal doors, leapt over a desk to take cover and, in doing so,

dislocated his shoulder.

Joshua’s father believes that his son—who died in 2013—should have received a Purple

Heart for his injury. Unlike other military decorations, which are awarded only upon the

recommendation of a commander, the Purple Heart is given to any servicemember who meets

certain regulatory criteria. Army Reg. 600-8-22, ¶ 2.8(c). The Army’s regulations provide that a

servicemember is entitled to the Purple Heart if he is wounded as the result of a terrorist attack

1 Pursuant to Federal Rule of Civil Procedure 25(d), Secretary Esper has been automatically substituted for Ryan D. McCarthy, who no longer serves as Secretary. committed by a foreign terrorist organization. 10 U.S.C. § 1129a; Army Reg. 600-8-22,

¶ 2-8(b)(10).

Initially, the Army declined to award the Purple Heart to servicemembers injured or

killed in the Fort Hood attack because, though Hasan admitted that he was inspired by Al-Qaeda

in the Arabian Peninsula and was in contact with one of its senior recruiters, the terrorist group

was not understood to be formally behind the attack. But Congress clarified in a 2015 statute

that servicemembers injured during attacks inspired by foreign terrorist organizations and

committed by individuals who were in communication with such organizations could qualify for

the Purple Heart. 10 U.S.C. § 1129a(b); Army Reg. 600-8-22, ¶ 2-8(b)(10)(b). In turn, the

Secretary of the Army determined that servicemembers injured or killed in the Fort Hood attacks

were eligible for the Purple Heart if they met the other regulatory criteria. See Administrative

Record (“A.R.”) 78–79.

Shortly after that announcement, the plaintiff applied for his son to receive the award.

The U.S. Army Decorations Board denied his application in March 2015 on the ground that the

attack did not directly cause Berry’s injury. A.R. 6. In doing so, it relied on an email from a

Fort Hood staff attorney stating that—while he was not certain—he believed that Hasan had not

shot at the building where Berry was located. Id.

The Decorations Board informed the plaintiff of its decision by letter and explained that

he could apply to the Army Board for Correction of Military Records if he felt the decision was

unjust. He did so. Along with his application for review, he filed witness statements his son had

made to investigators and a statement from another individual indicating that Hasan had indeed

shot at the building inside which Berry had been injured. A.R. 7–9.

2 By a 2-to-1 vote, the Corrections Board recommended that Berry receive a Purple Heart.

A.R. 10. The Board found it clear that Berry’s injury “met the basic medical criteria” for award

of the Purple Heart—i.e., that he suffered a qualifying “wound” during the attack. A.R. 9; see

Army Reg. 600-8-22, ¶ 2.8(e). The real issue, in the Board’s view, was “the degree to which the

enemy (i.e., the terrorist) caused his injury,” A.R. 9—a necessary consideration under the Army

regulations, Army Reg. 600-8-22, ¶ 2.8(f).

On this point, the Board began by citing the regulations’ examples of injuries that would

warrant a Purple Heart, including those incurred “while making a parachute landing from an

aircraft that had been brought down by enemy fire” or “as a result of a vehicle accident caused

by enemy fire.” Id. ¶ 2-8(i)(1). The Board observed that Berry’s injury was not obviously

analogous: the examples “describe[d] circumstances under which the individual would not have

control over his or her bod[y],” while Berry was injured as a result of his own decision to leap

over the desk for cover. A.R. 9. And yet, the Board explained, Berry would not have made that

decision but for the active shooter outside the building. Id. Though it did not expressly

reconcile these competing points, the Board was evidently persuaded that the latter prevailed and

established causation. It recommended that Berry be granted a Purple Heart. A.R. 10.

But a few months later, the Deputy Assistant Secretary of the Army—exercising the

Secretary’s authority to override the Correction Board’s recommendations—found to the

contrary. She registered her disagreement in a single paragraph of a one-page letter:

I have reviewed the findings, conclusions, and Board member recommendations. I find there is not sufficient evidence to grant relief. Therefore, under the authority of [

], I have determined that the facts do not support a conclusion that his injury met the criteria for a Purple Heart.

A.R. 2.

3 Berry’s father challenges that denial under the Administrative Procedures Act (“APA”).

He claims that the Deputy Assistant Secretary’s decision was “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law,” and that it was “unsupported by substantial

evidence.”

(2)(A), (E). The Court agrees that the decision violates the APA, and

it will remand this matter to the Army for reconsideration.

Challenges to agency decisions under the APA are properly resolved on motions for

summary judgment—which the parties have both filed here. Unlike with a typical summary

judgment motion, however, the relevant question is not whether the record creates a material

dispute of fact. Instead, the court’s job is to review the decision in light of the record before the

agency and to decide whether it complied with the APA.

To be sure, courts are “unusually deferential” toward military decisions regarding

servicemembers’ records, including those related to decoration. Kreis v. Sec’y of Air Force,

(D.C. Cir. 1989). But the summary denial here fails even that generous

standard of review. It provides no meaningful analysis—only a boilerplate determination “that

the facts do not support a conclusion that [Berry’s] injury met the criteria for a Purple Heart.”

A.R. 2. Why not? Was there conflicting evidence regarding how immediate of a threat Hasan

posed to Berry as he sat inside the building? Was the evidence clear but the Deputy Assistant

Secretary thought that Berry could have taken cover without injuring himself? Or did she read

the regulations as categorically taking the Purple Heart off the table for servicemembers injured

while taking cover?

The denial letter provides no hints. In turn, the Court cannot meaningfully evaluate the

reasoning behind it. That is enough to warrant remand. The deference accorded to military

personnel decisions does not totally shield them from review. See, e.g., Saint-Fleur v. McHugh,

4

(D.D.C. 2015). Rather, even a military personnel decision “is owed no

deference if it fails to ‘give a reason that a court can measure . . . against the arbitrary or

capricious standard of the APA.’” Coburn v. McHugh,

(D.C. Cir. 2012)

(quoting Kreis, 866 F.2d at 1514–15). Decisions that are “utterly unreviewable” must be vacated

as arbitrary and capricious. Kreis,

.

That is the case here. In the face of an eight-page Board recommendation that provided a

reasoned basis for awarding a Purple Heart, the Deputy Assistant Secretary summarily disagreed.

The Court could not grant deference to that change of course if it tried.

Not to say that summary denials must always be set aside under the APA. If, for

example, the Board had written a denial decision and the Deputy Secretary summarily affirmed

it, the Court could fairly presume (even if not with certainty) that she was adopting the Board’s

reasoning. In that case, “the agency’s path” might “reasonably be discerned.” Motor Vehicle

Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,

(1983). The

Court would also be more inclined to uphold the denial if it were obviously supported by the

record. It is not. Even if not clearly incorrect, the denial is at least on shaky ground. As the

Corrections Board observed, injuries caused by taking cover are not precisely like the examples

stated in the Army regulations. But neither are they much like the examples of injuries that do

not suffice: for instance, those attributable to “[a]ccidents . . . not related to or caused by enemy

action” or for “[s]elf inflicted wounds, except when in the heat of battle and not involving gross

negligence.” Army Reg. 600-8-22, ¶ 2.8(h)(8)–(9). The regulations also emphasize that “strict

interpretation of the requirement for the wound or injury to be caused by direct result of hostile

action” should not “preclude the award being made to deserving personnel.” Id. ¶ 2.8(i).

5 At a minimum, Berry’s case presents a more complicated issue of causation—whether an

injury incurred while taking cover from gunfire outside a building was “caused” by the gunfire

—than the Deputy Assistant Secretary’s summary denial suggests. The government’s arguments

that this issue was properly resolved against Berry are efforts to rationalize the Army’s cursory

denial. The APA demands that the Army itself—acting through its officers—explain its

resolution of the issue. See Pierce v. SEC,

(D.C. Cir. 2015) (“A reviewing

court may not supply a reasoned basis for an agency action that the agency itself did not give in

the record under review.”).

The Court is unwilling, however, to go the extra step of ordering that Berry be awarded a

Purple Heart. Rather, remand is proper. Dickson v. Sec’y of Defense,

(D.C.

Cir. 1995) (“Where an agency has failed . . . to explain the path it has taken, we have no choice

but to remand for a reasoned explanation.” (internal quotation omitted)). On remand, the Army,

assuming it wishes to stick with its determination, must explain why Berry is not entitled to a

Purple Heart and do so with sufficient clarity that “a court can measure” the denial “against the

‘arbitrary or capricious’ standard of the APA.” Kreis, 866 F.2d at 1514–15.

The Court will thus grant the plaintiff’s motion for summary judgment and deny the

defendants’ motion. A separate order accompanies this memorandum opinion.

CHRISTOPHER R. COOPER United States District Judge

Date: August 22, 2018

6