UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MICHAEL C. BAXLEY,

Plaintiff,

v. Civil Action No. 21-cv-2245 (TSC)

CHRISTINE WORMUTH, et al.,

Defendants.

MEMORANDUM OPINION

Michael Baxley, a former member of the United States Army, challenged the Army

Board for Corrections of Military Records’ (“Board”) decision not to upgrade his “Under

Honorable Conditions (General)” discharge to an Honorable discharge. The court granted

Defendants’ motion for summary judgment and denied Plaintiff’s cross motion, concluding that

the Board engaged in reasoned decisionmaking under the Administrative Procedure Act (“APA”)

and its decision did not violate due process. Plaintiff moved for reconsideration on the APA

claim, arguing that the Army Regulations required the Board to Honorably discharge him

because evidence of his drug rehabilitation failure was improperly introduced in his separation

proceeding. Having considered the record and the briefs, the court will DENY Plaintiff’s

Motion.

I. BACKGROUND

Plaintiff was a member of the U.S. Army in the 1970s. AR172. He was initially

stationed at Fort Lee, Virginia, but was subsequently transferred to the United States Army

Retraining Brigade at Fort Riley, Kansas, due to misconduct. AR6. While at Fort Lee, Plaintiff

received one year of probation for three drug counts, id.; AR174–75, and was separately fined

Page 1 of 11 for improper driving, AR229. At Fort Riley, Plaintiff was determined to be a “drug

rehabilitation failure,” which barred him from reenlisting, AR178, and he engaged in several

additional acts of misconduct, including grabbing a female soldier, AR226, possessing

marijuana, AR200; AR240–43, and failing to obey a lawful order, AR249.

Plaintiff’s commander therefore recommended that he be discharged from the Army for

misconduct. AR98. His commander provided a list of incidents of misconduct and poor

performance to be considered by the board of officers. See AR101–02. The list included “bar to

reenlistment,” which resulted from his drug rehabilitation failure. See AR101; AR178. During

Plaintiff’s separation hearing, his commander provided the board of officers with the list of

incidents, which was then admitted at his administrative separation hearing without objection

from Plaintiff’s counsel. AR209. Army Regulations restrict the applicability of evidence

regarding a servicemember’s substance abuse treatment in discharge decisions, however. See

AR92–96. The board of officers therefore noted that some evidence in the record included

“possibly exempt information according to [Army Regulation] 600-85” and accordingly did not

consider that evidence. AR211. The board ultimately recommended that Plaintiff be discharged

with an “Undesirable Discharge Certificate” due to his history of misconduct. Id.

Plaintiff’s counsel subsequently argued to the commander of the Retraining Brigade that

some of the evidence before the board of officers should not have been considered under Army

Regulation 600-85 and requested that Plaintiff’s discharge be changed to an Honorable

discharge. AR212–13. A judge advocate and the commander reviewed Plaintiff’s case and

affirmed the board’s decision, concluding that “[t]here was sufficient other evidence to support

the recommended discharge.” AR9. The Commander of the Retraining Brigade approved the

recommendation and officially ordered that Plaintiff be discharged with an Undesirable

Page 2 of 11 Discharge Certificate, id., which reflected “frequent incidents of a discreditable nature with civil

or military authorities,” AR181 (formatting modified). Plaintiff then appealed to the Army

Discharge Review Board, which upgraded Plaintiff’s discharge to “Under Honorable Conditions

(General).” AR183.

Decades later, Plaintiff was diagnosed with Dysthymic Disorder and requested that the

Board upgrade his discharge to “Honorable” to allow him to receive a disabled veterans

identification card. AR161; AR163. A Board psychologist assessed Plaintiff and recommended

no change to Plaintiff’s discharge because Plaintiff did not have Dysthymic Disorder at the time

of discharge and, even if he had, the diagnosis would not have been a mitigating factor in his

discharge decision. AR160–61. The Board therefore denied Plaintiff’s request. AR123.

Plaintiff then filed this action pro se, alleging that the Board did not properly consider the

claim that exempt evidence was used during his initial separation proceeding. See Compl., ECF

No. 1. The Government agreed to reconsider Plaintiff’s discharge status, ECF No. 15, and again

sought advice from a clinical psychologist, AR79–80. The psychologist concluded that Plaintiff

did not have a behavioral condition while in the Army, AR80, and the Board ultimately

concluded that relief was not warranted, AR23. The Board specifically addressed Plaintiff’s

concern that evidence was improperly introduced in his initial separation proceeding, reasoning

that the regulation did not require that he be Honorably discharged because the exempt evidence

was not relied upon in his discharge decision, Plaintiff did not object to its introduction, and

Plaintiff invoked the evidence himself at the proceeding. Id.

The case then returned to this court, see ECF No. 22, and the parties cross moved for

summary judgment, ECF Nos. 24, 32. This court granted Defendants’ motion and denied

Plaintiff’s cross motion. See Order, ECF No. 42. The court held, in relevant part, that the Board

Page 3 of 11 complied with the APA and engaged in reasoned decisionmaking because it “did not rely on

erroneous factors, ignore ‘an important aspect of the problem,’ or come to a conclusion ‘counter

to the evidence.’” Mem. Op., ECF No. 41 at 8 (citation omitted).

Plaintiff subsequently moved for reconsideration, ECF No. 44 (“Motion”), arguing that,

at his separation proceeding, his commander introduced prohibited evidence to the reviewing

board, and that merely introducing the evidence entitled him to an Honorable discharge under the

Army Regulations. Mot. at 2. Thus, he asserts, the court incorrectly held that the Board’s

decision complied with the APA. Id.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 60(b) permits a court to grant a party relief from a final

judgment or order under certain circumstances. “Rule 60(b) provides an exception to finality.”

Lee Mem’l Hosp. v. Becerra,

(D.C. Cir. 2021). Rule 60(b) serves to preserve

the “delicate balance between the sanctity of final judgments and the incessant command of the

court’s conscience that justice be done in light of all the facts.” Bain v. MJJ Prods.,

(D.C. Cir. 2014) (formatting modified). Accordingly, “courts should revive previously-

dismissed claims only if they have some reason to believe that doing so will not ultimately waste

judicial resources.” Thomas v. Holder,

(D.C. Cir. 2014).

“The party seeking relief under Rule 60(b) bears the burden of showing that they are

entitled to the relief.” Jarvis v. Parker,

(D.D.C. 2014). District courts

have discretion over whether to grant Rule 60(b) motions, United Mine Workers of Am. 1974

Pension v. Pittston Co.,

(D.C. Cir. 1993), but Rule 60(b) relief should be

granted “sparingly,” People for the Ethical Treatment of Animals v. U.S. Dep’t of Health & Hum.

Servs.,

, 354–55 (D.C. Cir. 2018) (“PETA”).

Page 4 of 11 Rule 60(b) relief may be proper in instances involving “mistake, inadvertence, surprise,

or excusable neglect,” Fed. R. Civ. P. 60(b)(1), or “any other reason that justifies relief,” Fed. R.

Civ. P. 60(b)(6). 1 “Relief under Rule 60(b)(1) motions is rare.” Hall v. CIA,

(D.C. Cir. 2006). Such relief is not appropriate merely because the moving party is unsatisfied

with the court’s decision. Munoz v. Bd. of Trs. of Univ. of D.C.,

(D.D.C.

2010). Nor are a court’s alleged “‘mistakes’ of legal reasoning” typically grounds for Rule

60(b)(1) relief.

Moreover, in cases involving excusable neglect, courts conduct an equitable

analysis, considering “the risk of prejudice to the non-movant, the length of delay, the reason for

the delay,” and “whether the movant acted in good faith.” FG Hemisphere Assocs. v.

Democratic Republic of Congo,

(D.C Cir. 2006) (citation omitted).

Rule 60(b)(6) relief, moreover, may be available “only when Rules 60(b)(1) through

(b)(5) are inapplicable.” Kemp v. United States,

(2022). “To obtain relief

under this provision,” the party must “demonstrate ‘extraordinary circumstances.’” United

States v. Philip Morris USA Inc.,

(D.C. Cir. 2016) (citation omitted).

Extraordinary circumstances may exist when “a party timely presents a previously undisclosed

fact so central to the litigation that it shows the initial judgment to have been manifestly unjust.”

PETA,

(citation omitted).

1 Plaintiff has not identified under which subsections of Rule 60(b) he seeks relief. Briefs filed by pro se litigants, however, are held to less stringent standards than those drafted by lawyers. See Haines v. Kerner,

(1972). Consequently, the court will evaluate the motion under Rule 60(b)(1) and 60(b)(6)—the subsections that appear most relevant given Plaintiff’s arguments. Page 5 of 11 III. ANALYSIS

A. Reasoned Decisionmaking

The APA authorizes courts to “hold unlawful and set aside agency action, findings, and

conclusions found to be . . . arbitrary, capricious, and abuse of discretion, or otherwise not in

accordance with law.”

(2)(A). A court’s review of agency action is “highly

deferential and presumes the validity of agency action.” Nat’l Ass’n of Clean Air Agencies v.

EPA,

(D.C. Cir. 2007) (quotation marks omitted). Consequently, agency

action “is not arbitrary if it is reasonable and reasonably explained.” City of Salisbury v. Fed.

Energy Regul. Comm’n,

(D.C. Cir. 2022) (quotation marks omitted).

To survive APA review, an agency must have “examine[d] the relevant data and

articulate[d] a satisfactory explanation for its action including a rational connection between the

facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto.

Ins. Co.,

(1983) (quotation marks omitted). Agency action is thus arbitrary and

capricious “if the agency has relied on factors which Congress has not intended it to consider,

entirely failed to consider an important aspect of the problem,” or “offered an explanation for its

decision that runs counter to the evidence before the agency.”

2

B. Rule 60(b) Relief is Unwarranted

As the court explained at summary judgment, the Board “considered the case file, the two

advisory opinions provided by . . . behavioral health professionals, and all matters submitted by

[Plaintiff], including [his] response to the advisory opinions.” Mem. Op. at 8 (quoting AR21);

see

at 8–10. The record illustrates that “the Board did not rely on erroneous factors, ignore

2 The court need not decide whether the “unusually deferential” standard of arbitrary or capricious applies in this case, see Mem. Op. at 7, because reconsideration is improper under either standard.

Page 6 of 11 ‘an important aspect of the problem,’ or come to a conclusion ‘counter to the evidence.’”

at 8

(quoting Motor Vehicle Mfrs. Ass’n of U.S.,

). Rather, the Board properly

considered Plaintiff’s service record and history of misconduct, mental health evaluation,

medical records, and the Board’s psychologist’s assessment. See AR6–14. Ultimately, the

Board evaluated the “relevant data” and articulated a conclusion that rationally connected “the

facts found and the choice made.” Motor Vehicle Mfrs. Ass’n of U.S.,

.

Consequently, reconsideration of the court’s decision is unwarranted.

Plaintiff contends that the Board acted arbitrarily and capriciously because it

misconstrued the Army Regulations. Mot. at 2. In Plaintiff’s view, simply introducing evidence

about his drug rehabilitation failure at the separation hearing required the Government to grant

Plaintiff an Honorable discharge, even if that evidence was not considered in the Board’s

decision.

Plaintiff’s argument is, at first glance, supported by the plain text of the regulation,

which provides that “if either the commander (in his/her recommendation for discharge or in

documents forwarded with his/her recommendation), or any member of the board of officers

adjudicating the servicemember’s case, or the investigating officer/recorder presenting the case

before the board, initially introduces evidence prohibited above; the member will receive an

honorable discharge certificate, regardless of his overall performance of duty.” AR96.

Prohibited evidence includes that of “alcohol abuse, or drug use or drug possession incidental to

personal use” in connection with substance abuse treatment and rehabilitation. AR94. 3

3 It is unclear from the record whether prohibited evidence regarding Plaintiff’s drug rehabilitation was actually introduced at his discharge proceeding. The only mentions in the record Plaintiff has pointed to note that he was barred from reenlisting. See AR201, 209. Although Plaintiff’s bar to reenlistment resulted from drug rehabilitation failure, AR178, it does not necessarily follow that evidence of a reenlistment bar constitutes evidence of substance abuse or substance abuse treatment. Page 7 of 11 Even so, the Board’s conclusion that Plaintiff was not entitled to an Honorable discharge

was not arbitrary or capricious. 4 First, the Board relied on the purpose of the exempt evidence

regulation in giving it a more lenient construction, reasoning that “The policy is designed to

encourage Soldiers to seek out substance abuse help without fearing that the decision to seek

help might be used against the Soldier for disciplinary purposes.” AR23 (emphasis added).

Although courts “begin” “with the language of the” regulation, they may also “turn to other

‘customary statutory interpretation tools,’” including “purpose.” Genus Med. Techs. LLC v.

FDA,

(D.C. Cir. 2021) (citation omitted). “Examination of purpose is a staple

of statutory interpretation,” making up “daily fare” for courts. McCreary Cnty. v. Am. C.L.

Union of Ky.,

(2005). The Army regulation provides that its objective is “to

facilitate effective identification, treatment, and rehabilitation by eliminating the barriers to

successful communications between alcohol or other drug abusers on the one hand, and

[substance use] counselors or physicians supporting the program on the other.” AR92. The

regulation achieves this objective by providing “immunity from disciplinary action . . . as a result

of certain occurrences of alcohol abuse, or drug use or possession of drugs incidental to personal

use” and “immunity from use of evidence obtained directly or indirectly from the member

having been involved in” substance abuse treatment.

Thus, the regulation seeks not to

punish harmless litigation errors by Army investigators, but rather, to ensure that

servicemembers are not punished for seeking substance abuse treatment. See AR23.

The judge advocate came to a similar conclusion as the Board, explaining that the

officers had “sufficient other evidence to support the recommended discharge” without exempt

4 The court need not afford deference to the Board’s interpretation of Army Regulation 600-85 under Kisor v. Wilkie,

(2019), because even without deference, Rule 60(b) relief is not warranted. See Mem. Op. at 9 n.1.

Page 8 of 11 evidence, AR9; see AR23–24 (outlining Plaintiff’s misconduct), and that Army Regulation 600-

85 did not require an Honorable discharge because there is “no prohibition against mention of a

member’s failure in rehabilitation, as long as involvement in the program was not the motivating

factor in recommending discharge,” AR9.

The Board’s and judge advocate’s purpose-based reading of the Army Regulations

comports with common principles of civil litigation. Under the Federal Rules of Civil

Procedure, “no error in admitting or excluding evidence—or any other error by the court or a

party—is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying,

or otherwise disturbing a judgment or order” unless “justice so requires.” Fed. R. Civ. P. 61.

And under Rule 61, courts “must disregard all errors and defects that do not affect any party’s

substantial rights.”

A similar principle also applies in administrative law because the APA

requires courts to take “due account” of “the rule of prejudicial error” in reviewing agency

action. See

; Shinseki v. Sanders,

, 406–07 (2009) (explaining that

the APA prejudicial error standard is “the same kind” of rule “that courts ordinarily apply in civil

cases”).

Second, the Board explained in its decision that Plaintiff’s “counsel did not object to the

introduction of any documents submitted by the government at the outset of the hearing” and

Plaintiff “himself introduced and discussed his substance abuse rehabilitation efforts.” AR23.

Plaintiff has not refuted this allegation. Plaintiff’s role matters because the sentence following

the regulatory provision Plaintiff cites provides that, “if the servicemember (respondent) or his

counsel initially introduces [prohibited] evidence, the type of discharge certificate issued is not

restricted to an Honorable discharge certificate merely because of the presence of that evidence

(or rebuttal thereto) in the discharge action record.” AR96. Put another way, Plaintiff may not

Page 9 of 11 inject prohibited evidence into a proceeding himself and then claim he is entitled to an

Honorable discharge. This caveat also tracks a basic principle of civil litigation: “Generally

speaking, the unclean hands doctrine requires that a party seeking equitable relief ‘show that his

or her conduct has been fair, equitable, and honest as to the particular controversy in issue.’”

Bartko v. SEC,

(D.C. Cir. 2017) (citation omitted). Plaintiff should not

have the opportunity to benefit from an error if it resulted from his own choices.

Finally, even if the court erred in holding that the Board did not act arbitrarily and

capriciously in electing not to upgrade Plaintiff’s discharge, Plaintiff fails to point to any

“mistake, inadvertence, surprise, or excusable neglect” that entitles him to relief under Rule

60(b). Allegations that the court’s legal analysis was mistaken are “rarely” proper grounds for

Rule 60(b)(1) relief. Avila v. Dailey,

, 22–23 (D.D.C. 2019); accord Munoz,

. Moreover, Plaintiff fails to identify any instance of “extraordinary

circumstances” permitting relief under Rule 60(b)(6). See PETA,

. Plaintiff

raised Army Regulation 600-85 in his summary judgment briefing, where his arguments were

thoroughly considered by the court. See Mem. Op. at 8–10. Raising these arguments again in a

motion for reconsideration is no more persuasive. See FG Hemisphere Assocs.,

(citation omitted); Philip Morris USA Inc.,

(citation omitted).

Page 10 of 11 IV. CONCLUSION

For the foregoing reasons, the court will DENY Plaintiff’s Motion for Reconsideration,

ECF No. 44. An Order will accompany this Memorandum Opinion. The Clerk of Court shall

mail a copy of this Memorandum Opinion to Plaintiff at his address of record.

Date: July 15, 2024

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

Page 11 of 11