NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

MATTHEW T. CRUMLEY,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2022-1232

______________________ 

Appeal from the United States Court of Federal Claims 

in No. 1:21-cv-00976-EGB, Senior Judge Eric G. Bruggink.

______________________ 

Decided: November 8, 2022 

______________________ 

MATTHEW LEO EANET, Eanet, PC, Los Angeles, CA, for 

plaintiff-appellant.

 EBONIE I. BRANCH, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for defendant-appellee. Also represented by 

BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.

MCCARTHY. 

______________________ 

Case: 22-1232 Document: 39 Page: 1 Filed: 11/08/2022
2 CRUMLEY v. US

Before MOORE, Chief Judge, LOURIE and PROST, Circuit 

Judges.

PROST, Circuit Judge. 

Matthew T. Crumley appeals an order of the U.S. Court 

of Federal Claims dismissing his complaint as barred by 

claim preclusion. We affirm.

BACKGROUND

I 

On November 20, 2010, Mr. Crumley—then an activeduty officer in the U.S. Air Force—was performing Honor 

Guard duties at a funeral when he stepped on artificial turf 

that, unbeknownst to him, covered an open grave. Injured 

in the fall, Mr. Crumley sought medical and legal assistance at Hanscom Air Force Base. On December 21, 2010, 

Mr. Crumley received a Letter of Admonishment (“LOA”) 

for allegedly disrespectful and uncooperative behavior during his interactions with Hanscom personnel. The LOA became the basis of an Unfavorable Information File (“UIF”) 

placed in Mr. Crumley’s official military personnel file. 

Mr. Crumley also received a Referral Education/Training 

Report (“Training Report”) dated August 2011, which noted 

his “disrespectful and unprofessional behavior” toward 

Hanscom personnel “for which he received a[n] [LOA].” 

App’x1 65.

In 2011, the Air Force conducted a reduction in force 

(“RIF”). In the September to October 2011 timeframe, the 

RIF Retention Board non-selected Mr. Crumley for retention. He received an honorable discharge effective 

March 1, 2012.

1 “App’x” refers to Mr. Crumley’s Appendix.

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CRUMLEY v. US 3

II

On December 21, 2012, Mr. Crumley applied to have 

the Air Force Board for the Correction of Military Records 

(“Board”) remove the LOA, UIF, and negative language in 

the Training Report from his records. The Board denied 

Mr. Crumley’s application. Mr. Crumley then sought review by a special board under 10 U.S.C. § 1558. The special 

board likewise denied Mr. Crumley’s requested relief.

On March 28, 2016, Mr. Crumley brought an action in 

the Court of Federal Claims for wrongful discharge—seeking reinstatement, correction of his military records, and 

back pay. Crumley v. United States, 133 Fed. Cl. 607, 609, 

613 (2017) (“Crumley II”).2 He alleged that the LOA, UIF, 

and Training Report suffered from various procedural defects and that the RIF Retention Board improperly considered them. Id. at 612. The government moved for 

judgment on the administrative record, and the Court of 

Federal Claims granted it. The court determined that 

“[t]he procedural defects [that Mr.] Crumley has alleged 

are immaterial to the . . . special board’s decision.” Id. According to the court:

[Mr.] Crumley had notice, multiple chances to respond, a clear understanding of the contents of the 

LOA, UIF, and [Training] Report, and suffered no 

substantial deprivation of rights as a result. Accordingly, [he] has failed to show that the . . . special board’s decision was arbitrary, capricious, 

contrary to law, or unsupported by substantial evidence. The RIF [Retention] [B]oard properly 

2 The Court of Federal Claims had previously dismissed an earlier-filed complaint for lack of jurisdiction because Mr. Crumley had not yet sought special-board 

review. Crumley v. United States, 122 Fed. Cl. 803 (2015) 

(“Crumley I”).

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4 CRUMLEY v. US

considered the LOA, UIF, and [Training] Report 

and was well within its discretion to non-select 

[Mr.] Crumley for retention.

Id. at 613. Mr. Crumley appealed the Court of Federal 

Claims’ judgment to this court, and we affirmed. Crumley 

v. United States, 738 F. App’x 1020 (Fed. Cir. 2018) (“Crumley III”) (nonprecedential). 

III

In July 2019, Mr. Crumley again applied for Board correction of his military records. He asserted that, while litigating Crumley II, he learned that the Training Report 

“never actually became a part of” his official military personnel file and was therefore “erroneously considered by 

the RIF Retention Board.” App’x 78. The Air Force Evaluation/Recognition Programs Administrator prepared an 

advisory opinion dated May 25, 2020, that recommended 

denying the application, and on May 26, 2020, the Board 

informed Mr. Crumley that he had thirty days to comment 

on the advisory opinion or provide additional evidence supporting his request. Mr. Crumley maintains that he timely 

commented on the advisory opinion via written correspondence dated June 25, 2020 (still within the thirty-day window). Appellant’s Br. 20 (citing App’x 94–97). Regardless, 

on June 3, 2020—before the comment window closed—the 

Board considered his application in an executive session 

and voted against correcting the record. And, on July 15, 

2020, the Board issued its final decision, denying 

Mr. Crumley’s application for the reasons set forth in the 

advisory opinion while maintaining that it had not received 

comments from Mr. Crumley regarding the advisory opinion.

In February 2021, Mr. Crumley brought another action 

in the Court of Federal Claims—again for wrongful discharge, and again seeking reinstatement and back pay. 

This time, however, he alleged—as examples of procedural 

defects justifying his requested relief—both that (1) the 

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CRUMLEY v. US 5

Training Report was never in his official military personnel 

file, so the RIF Retention Board improperly considered it; 

and (2) the Board prematurely denied his July 2019 application by failing to wait for and consider his timely comments on the advisory opinion. The government moved 

under Court of Federal Claims Rule 12(b)(6) to dismiss the 

complaint as barred by claim preclusion based on the final 

judgment in Crumley II. 

The Court of Federal Claims agreed with the government and dismissed the complaint as barred by claim preclusion. It first set forth the three requirements for claim 

preclusion—that (1) the parties are identical or in privity; 

(2) the first suit proceeded to a final judgment on the merits; and (3) the second claim is based on the same set of 

transactional facts as the first (i.e., the claims share a common “nucleus of operative facts”). Crumley v. United 

States, No. 21-976C, 2021 WL 4438547, at *4 (Fed. Cl. 

Sept. 28, 2021) (“Crumley IV”) (citing Ammex, Inc. v. 

United States, 334 F.3d 1052, 1055 (Fed. Cir. 2003)). Because Mr. Crumley did not dispute that the first two requirements were met, the court focused on the third: 

whether the instant claim shared a common nucleus of operative facts with that in Crumley II. The court concluded 

that it did: 

In both cases, [Mr.] Crumley alleged facts that relate to the same series of events, which occurred at 

the same time and which are all related in origin. 

The facts alleged here and in Crumley II are based 

upon the RIF [Retention] Board’s review of his military record, including the LOA, UIF, and Training 

Report, the [RIF Retention Board]’s decision to 

non-select him for retention, and the [Board]’s denial of his request for relief from discharge. Further, in both cases, plaintiff sought the same relief: 

reinstatement, correction of his military records, 

and back pay.

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6 CRUMLEY v. US

Id.

The Court of Federal Claims also rejected Mr. Crumley’s argument that, because the alleged facts concerning 

consideration of the Training Report and premature denial

of the July 2019 application were discovered or arose after 

his initial complaint in Crumley II, claim preclusion should 

not apply. The court acknowledged that “new facts that are 

materially relevant to the claim or issue” may supply a basis for avoiding claim preclusion. See id. at *5 (cleaned up). 

But, in its view, these alleged facts were not materially relevant to Mr. Crumley’s wrongful-discharge claim because 

they could not “affect the outcome of the suit under the governing law.”3 Id. (cleaned up). 

As to the Training Report, the court noted that it contained only one negative statement regarding the events

underlying the LOA: “During this period, [Mr.] Crumley 

displayed disrespectful and unprofessional behavior toward” Hanscom personnel “for which he received a[n] 

[LOA].” Id. at *6 (quoting App’x 65). But the LOA and 

UIF—both part of Mr. Crumley’s official military personnel 

file—“include[d] far more details” of those events. Id. Indeed, the LOA itself contained the very same negative information: “Your unprofessional and immature behavior 

toward” Hanscom personnel “is inexcusable.” Id. (quoting 

App’x 55). Accordingly, “[b]ecause the same information 

included in the Training Report was also included in the 

3 The Court of Federal Claims also determined that 

the alleged fact concerning the Training Report was not 

“new” in the relevant sense because Mr. Crumley discovered it years earlier while litigating Crumley II and therefore could have raised it in that litigation. Crumley IV, 

2021 WL 4438547, at *5. As we discuss below, because 

Mr. Crumley’s failure to challenge the court’s materiality 

analysis suffices to affirm, we need not consider this aspect 

of the court’s decision. 

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CRUMLEY v. US 7

LOA, the Training Report alone could not have affected the 

outcome of the [RIF Retention] [B]oard’s decision”; therefore, whether it was included in Mr. Crumley’s official military personnel file was not material to his wrongfuldischarge claim. Id.

As to the Board’s alleged premature denial of the July 

2019 application, the court’s reasoning flowed from its determination regarding the Training Report. Mr. Crumley 

based his July 2019 application on the same Training Report allegation: because it wasn’t in his official military 

personnel file, it was improperly considered. But, because 

that allegation wasn’t material, neither was the alleged 

premature denial of his July 2019 application. See id. at *7 

(“Even if it was improper for the [Board] to consider [the 

July 2019] application . . . without waiting for [Mr. Crumley’s] response, it was error without injury as the substance 

of the Training Report was already before the RIF [Retention] [B]oard from other documents.”). The court therefore 

dismissed Mr. Crumley’s complaint as barred by claim preclusion.

Mr. Crumley timely appealed. We have jurisdiction 

under 28 U.S.C. § 1295(a)(3).

DISCUSSION

We review de novo the Court of Federal Claims’ dismissal for claim preclusion. E.g., Cunningham v. United 

States, 748 F.3d 1172, 1175 (Fed. Cir. 2014) (referring to 

claim preclusion as “res judicata”). 

Mr. Crumley’s main argument against claim preclusion emphasizes that the alleged facts underlying this case 

are “new” because they were discovered or arose after his 

initial complaint in Crumley II. The Court of Federal 

Claims acknowledged that “new facts” may render a second 

claim not precluded. See id. at *5 (cleaned up). But, according to the court, being new wasn’t enough; new alleged 

facts also needed to be material. See id.; see also Whole 

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8 CRUMLEY v. US

Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2305 (2016)

(endorsing the approach outlined in section 24 of the Restatement (Second) of Judgments, which “notes that development of new material facts can mean that a new case and 

an otherwise similar previous case do not present the same 

claim” (emphasis added)), abrogated on other grounds by 

Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 

(2022); Lucky Brand Dungarees, Inc. v. Marcel Fashions 

Grp., Inc., 140 S. Ct. 1589, 1596 (2020) (“Events that occur 

after the plaintiff files suit often give rise to new material

operative facts that in themselves, or taken in conjunction 

with the antecedent facts, create a new claim to relief.” 

(emphasis added) (cleaned up)). And, in the court’s view, 

Mr. Crumley’s purportedly new alleged facts weren’t material. Crumley IV, 2021 WL 4438547, at *6–7. 

Mr. Crumley, however, doesn’t challenge the Court of 

Federal Claims’ materiality analysis. For example, he 

doesn’t argue that the court erred by requiring that his 

“new” alleged facts be material. Nor does he argue that

those facts are material. He simply says nothing on the 

subject. Given that the court’s claim-preclusion determination rested on its materiality analysis—regardless of 

whether Mr. Crumley’s alleged facts were new—his failure 

to challenge (or even acknowledge) that analysis on appeal 

is conspicuous.4 As the appellant, it fell to Mr. Crumley to 

demonstrate error in the Court of Federal Claims’ 

4 It’s all the more conspicuous given that (1) the 

Court of Federal Claims noted that Mr. Crumley’s response 

to the government’s motion to dismiss “d[id] not address 

the issue of materiality,” Crumley IV, 2021 WL 4438547, 

at *5 n.3, even though the government’s motion raised the 

issue; and (2) after the government’s brief in this appeal 

called out this same deficiency in Mr. Crumley’s opening 

brief, e.g., Appellee’s Br. 15–16, 22–23, he declined to file a 

reply brief.

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CRUMLEY v. US 9

judgment. See, e.g., SmithKline Diagnostics, Inc. v. Helena 

Labs. Corp., 859 F.2d 878, 892 (Fed. Cir. 1988); accord In 

re Cmty. Home Fin. Servs. Corp., 32 F.4th 472, 484 (5th Cir. 

2022) (“On appeal, the burden is on the appellant[] to show 

error.” (cleaned up)); Hernandez v. Starbuck, 69 F.3d 1089, 

1093 (10th Cir. 1995) (“Because the appellant comes to the 

court of appeals as the challenger, he bears the burden of 

demonstrating the alleged error . . . .”). In this case, without any developed argument from Mr. Crumley on the materiality issue—and there is none—he has given us no basis 

to disturb the Court of Federal Claims’ claim-preclusion determination and resultant dismissal. So we affirm.

CONCLUSION

We have considered Mr. Crumley’s remaining arguments and find them unpersuasive. For the foregoing reasons, we affirm.

AFFIRMED

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