United States District Court, District of Columbia
HOWARD M. BERRY, Plaintiff,
MARK ESPER, Secretary of the Army, et al., Defendants.
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.
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.
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 committed by a foreign terrorist organization. 10
U.S.C. § 1129a; Army Reg. 600-8-22, ¶
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
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.
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-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,
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.
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
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 [10 U.S.C.
§ 1552], I have determined that the facts do not support
a conclusion that his injury met the criteria for a Purple
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.” 5 U.S.C.
§ 706(2)(A), (E). The Court agrees that the decision
violates the APA, and it will remand this matter to the Army
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.
sure, courts are “unusually deferential” toward
military decisions regarding servicemembers' records,
including those related to decoration. Kreis v. Sec'y
of Air Force, 866 F.2d 1508, 1514 (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 ...