IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DAMON J. CLAIBORNE,

Plaintiff,

v.

SECRETARY OF THE ARMY,

Defendant.

3:15-cv-01192-BR

 

OPINION AND ORDER 

LISA D. WRIGHT

P.O. Box 13

Salem, OR 97308

(503) 589-1817 

JOHN N. MAHER

17101 71st Street

Tinley Park, IL 60477

(312) 804-991 

Attorneys for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JAMES E. COX, JR. 

Assistant United States Attorney

1000 S.W. Third Avenue 

Suite 600

Portland, OR 97204

(503) 727-1000 

Attorneys for Defendant

1 - OPINION AND ORDER
BROWN, Senior Judge.

This matter comes before the Court on Plaintiff’s Amended

Motion (#48) for Limited Discovery and to Supplement the

Administrative Record. For the reasons that follow, the Court

DENIES Plaintiff’s Motion.

BACKGROUND

The following facts are taken from Plaintiff’s Amended

Complaint and the parties’ filings related to Plaintiff’s Amended

Motion for Limited Discovery, including the materials filed by

the parties related to Plaintiff’s Motion for Temporary

Restraining Order that are incorporated by reference in the

record currently before the Court. The following facts are

undisputed unless otherwise noted.

Plaintiff Damon J. Claiborne was a Staff Sergeant (SSG) on

active duty in the United States Army currently assigned to Joint

Base Lewis-McChord (JBLM), Washington.

On November 12, 2004, Plaintiff was charged in Kitsap

County, Washington, with one count of Child Molestation in the

Second Degree. Plaintiff submitted an Alford plea and was

sentenced to 15-months imprisonment. Plaintiff’s status with the

Army was changed from “present for duty” to “civilian

confinement” from October 28, 2004, to January 5, 2006.

On January 6, 2006, Plaintiff’s status was changed to

2 - OPINION AND ORDER
“present for duty,” and Plaintiff reported to his unit. As a

result of the state-court conviction, the Army initiated

involuntary separation proceedings against Plaintiff on February

9, 2006, under the provisions of Army Regulation 635-200, chapter

14-5, Active Duty Enlisted Administrative Separations, ¶ 14-5,

Conviction by Civil Court.

On May 10, 2006, the Acting Commander, I Corps and Fort

Lewis, reviewed the recommendation to discharge Plaintiff

pursuant to Army Regulation 635-200. The Acting Commander

suspended execution of the discharge for 12 months pursuant to

Army Regulation 635-200, ¶ 1-18.

At some point the suspended discharge was cancelled after

Plaintiff’s successful completion of the probation period

pursuant to Army Regulation 635-200, ¶ 1-18b, and Plaintiff was

retained by the Army.

On June 25, 2008, Plaintiff reenlisted in the Army for a

period of four years. On October 1, 2010, Plaintiff reenlisted

again for a period of five years.

On March 25, 2011, Plaintiff was determined to be eligible

under the Military Retirement Reform Act to elect either a

one-time career status bonus and remain under the REDUX retired

pay system or to retire under the “High-3" retirement system. 

Plaintiff elected the one-time career status bonus, which

required Plaintiff to agree to stay in the Army until he had a

3 - OPINION AND ORDER
minimum of 20 years active service.

On November 7, 2013, the Secretary of the Army issued Army

Directive 2013-21, which provided in pertinent part:

Commanders will initiate the administrative

separation of any Soldier convicted of a sex

offense . . . whose conviction did not result in a

punitive discharge or dismissal. This policy

applies to all personnel currently in the Army,

regardless of when the conviction for a sex

offense occurred and regardless of component of

membership and current status in that component.

Army Directive 2013-21(3).

At some point Plaintiff requested voluntary retirement from

the Army “upon completion of 20 years of active Federal service.” 

AR00013.1

On January 6, 2014, Plaintiff’s request for retirement was

approved. Army Installation Management Command Orders released

Plaintiff from active duty effective January 31, 2015, and placed

him on the Retired List effective February 1, 2015. AR000014.

On February 10, 2014, however, Plaintiff was notified by the

Chief, Criminal Law Division, Headquarters, I Corps, that in

Administrative Directive 2013-21 the Secretary of the Army

“directed initiation of separation proceedings of all Soldiers

convicted of a sex offense if the conviction did not result in a

punitive discharge or dismissal, regardless of when the

1 Citations to the transcript of record filed by the

Secretary of the Army on February 20, 2018, are referred to as

"AR."

4 - OPINION AND ORDER
conviction occurred.” AR000014. The Chief also advised

Plaintiff that “if an enlisted Soldier who has been convicted of

a sex offense has already been subject to administrative

separation action, the separation authority will initiate

separation action under Secretarial plenary authority as

described in Army Regulation 635-200, paragraph 5-3.” AR000014.

On February 20, 2014, Plaintiff was advised by his Company

Commander that she was initiating a “flag” for involuntary

separation effective on that date. TROAR003-04.2 On 

February 20, 2014, Plaintiff signed a Developmental Counseling

Form and initialed that he agreed with the information. 

TROAR004.

On July 16, 2014, Plaintiff was notified via memo by his

Company Commander, Chris Kim, that Kim was initiating involuntary

separation under Army Regulation 635-200, Chapter 5-3, pursuant

to the Secretary of the Army’s plenary authority. TROAR005-08. 

The notification 

(1) informed Plaintiff that the reason for the separation

was his January 3, 2005, conviction for child

molestation in the second degree in Kitsap County,

(2) indicated Kim’s recommendation would be submitted to

2 Citations to the transcript of record filed by the

Secretary of the Army on July 6, 2015, in relation to Plaintiff’s

Motion for Temporary Restraining Order are referred to as

"TROAR."

5 - OPINION AND ORDER
the Secretary of the Army to make the final decision on

the matter, and 

(3) informed Plaintiff that he had the right to consult

with counsel and the right to submit statements on his

behalf.

On July 18, 2014, Plaintiff met with a military attorney and

elected to submit a statement on his behalf to be forwarded to

the decisional authority. TROAR013-14.

On July 20, 2014, Plaintiff submitted a Request for

Retirement in Lieu of Chapter 5-3 Proceedings and a Letter of

Intent to his Command. TROAR015-16.

In an undated memorandum Kim considered the separation

action and recommended retention. TROAR010-12.

In an undated memorandum Plaintiff’s Battalion Commander

considered the separation action and recommended retention as

well as characterization of Plaintiff’s service as Honorable and

“General under honorable conditions.” TROAR017-18.

In an undated memorandum Plaintiff’s Brigade Commander

considered the separation action and recommended Plaintiff “be 

. . . separated from the Army prior to the expiration of his

current term of service” and his service “be characterized as

. . . General under honorable conditions.” TROAR019.

On August 27, 2014, the Commanding General, I Corps,

considered the separation action and recommended Plaintiff “be 

6 - OPINION AND ORDER
. . . separated from the Army prior to the expiration of his

current term of service” and his service “be characterized as

. . . General under honorable conditions.” TROAR020.

On November 25, 2014, the Chief, Enlisted Retirements and

Separations, U.S. Army Human Resources Command, suspended

Plaintiff’s approved retirement and “revoked or rescinded as

appropriate” Plaintiff’s retirement orders noting “[t]he approved

retirement will remain in effect.” TROAR70.

On June 16, 2015, the Assistant Secretary of the Army

(Manpower and Reserve Affairs) Debra S. Wada found separation of

Plaintiff “is clearly in the best interest of the Army in

accordance with Army Regulation 635-200, paragraph 5-3.” 

TROAR072. Wada directed Plaintiff “be separated with a General

(Under Honorable Conditions) characterization of service.” 

TROAR072. 

On June 24, 2015, the Directorate of Human Resources,

Military Personnel Division, JBLM, published orders directing

Plaintiff’s discharge on July 1, 2015. TROAR073.

On June 28, 2015, Plaintiff filed a Complaint in this Court

seeking an order enjoining the Army from continuing his

separation, setting aside the Army’s decision, compelling the

Army to transfer him to the retired list with an effective date

to be determined, and seeking a number of declarations about the

Secretary of the Army’s authority under various Army regulations.

7 - OPINION AND ORDER
On June 29, 2015, Plaintiff filed a Temporary Restraining

Order seeking an order preventing Defendant from separating

Plaintiff from the Army.

On June 30, 2015, the Court heard oral argument on

Plaintiff’s Motion for Temporary Restraining Order; granted the

Temporary Restraining Order through July 8, 2015; and directed

the parties to file a Joint Status Report that addressed venue,

contained agreed background facts, and included any further

argument about likelihood of success on the merits.

On June 30, 2015, the Directorate of Human Resources,

Military Personnel Division, JBLM, amended Plaintiff’s discharge

order to reflect a discharge date of July 9, 2015.

On July 8, 2015, the Court heard further oral argument on

Plaintiff’s Motion for Temporary Restraining Order. The Court

concluded Plaintiff did not establish a sufficient likelihood of

success on the merits, that he was likely to suffer irreparable

harm in the absence of continued injunctive relief, or that the

balance of equities tipped sufficiently in Plaintiff’s favor. 

The Court also held Plaintiff was required to exhaust his

administrative remedies and failed to establish that he had done

so. The Court, therefore, allowed the Temporary Restraining

Order to lapse.

On August 7, 2015, the parties filed a Joint Status Report

in which they requested the Court to stay this matter while

8 - OPINION AND ORDER
Plaintiff pursued his administrative remedies. 

On August 10, 2015, the Court stayed this matter pending

Plaintiff’s pursuit of his administrative remedies.

On October 20, 2015, Plaintiff filed an appeal of Assistant

Secretary of the Army Wada’s June 16, 2015, decision to the Army

Discharge Review Board (ADRB). In his appeal Plaintiff

“request[ed] an upgrade of [Plaintiff’s] general, under honorable

conditions discharge to honorable and change the narrative reason

[for his separation from Secretarial authority] to retirement.” 

AR000020, AR000301.

On April 27, 2016, the ADRB “determined the applicant’s

characterization was improper.” AR000301. The ADBR, therefore,

“voted to grant full relief in the form of an upgrade of

characterization of service to honorable. However, the [ADRB]

determined that the reason for discharge was proper and equitable

and voted not to change it.” AR000301. Specifically, the ADBR

noted “the information available for review . . . revealed no

medical or behavioral health conditions which could be seen as

mitigating for the misconduct, child molestation.” AR000301.

On February 28, 2017, Plaintiff filed an application for

administrative review of the decision of the ADRB with the Army

Board for Correction of Military Records (ABCMR).

On September 2017, the ABCMR denied Plaintiff’s application

for administrative review.

9 - OPINION AND ORDER
On December 6, 2017, the parties filed a Joint Motion to

Lift Stay.

On December 7, 2017, the Court granted the parties’ Motion

and issued an Order lifting the stay in this matter.

On January 29, 2018, Plaintiff filed an Amended Complaint

seeking review of the Army’s decision pursuant to the

Administrative Procedures Act, 5 U.S.C. § 702, and a writ of

mandamus pursuant to 28 U.S.C. § 1361. Plaintiff requests the

Court to compel the Army to transfer him to the retired list with

an effective date to be determined and to issue any other legal

or equitable relief that the Court deems proper.

On March 19, 2018, Plaintiff filed a Motion (#47) for

Limited Discovery and to Supplement the Administrative Record. 

On March 30, 2018, Plaintiff filed an Amended Motion (#48) for

Limited Discovery and to Supplement the Administrative Record. 

The Court took Plaintiff’s Amended Motion under advisement on

April 30, 2018.

DISCUSSION

In his Amended Motion Plaintiff seeks an order requiring

Defendant to produce four Army witnesses for deposition: Debra

Wada, Assistant Secretary of the Army (Manpower and Reserve

Affairs); Julian Edmonson, Deputy Chief-of-Staff for the Army’s

G-1 (Personnel); Colonel Michael Miller; and Dennis Dingle,

10 - OPINION AND ORDER
Director, ABCMR. Plaintiff also seeks an order requiring

Defendant to supplement the administrative record to include

various email messages, written correspondence, and “any other

correspondence regarding the Army’s decision to separate”

Plaintiff. As to his second request, Plaintiff references a

letter that counsel sent to the Army in January 2018 in which

counsel sought 15 separate categories of correspondence,

documents, and authorities.

Defendant opposes Plaintiff’s Amended Motion on the grounds

that judicial review under the Administrative Procedures Act

(APA), 5 U.S.C. § 706, is limited to the administrative record

before the agency at the time of the decision, and Plaintiff has

not satisfied any of the limited exceptions that would permit him

to supplement the record.

The APA provides in pertinent part:

[A] reviewing court shall -

* * *

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be--

(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance

with law;

(B) contrary to constitutional right, power,

privilege, or immunity;

(C) in excess of statutory jurisdiction,

authority, or limitations, or short of

statutory right;

11 - OPINION AND ORDER
(D) without observance of procedure required

by law;

(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this

title or otherwise reviewed on the record of

an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent

that the facts are subject to trial de novo

by the reviewing court.

In making the foregoing determinations, the court

shall review the whole record or those parts of it

cited by a party.

5 U.S.C. § 706.

“Judicial review of an agency decision typically focuses on

the administrative record in existence at the time of the

decision and does not encompass any part of the record that is

made initially in the reviewing court.” S.W. Ctr. for Biological

Diversity v. U.S. Forest Svc., 100 F.3d 1443, 1450 (9th Cir.

1996)(citing Camp v. Pitts, 411 U.S. 138, 142 (1973)). The Ninth

Circuit, however, has held “[r]eview may . . . be expanded beyond

the record if necessary to explain agency decisions.” S.W. Ctr.

for Biological Diversity, 100 F.3d at 1450 (citing Animal Defense

Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988)).

Specifically, a reviewing court may only consider “extra-record

materials” under four narrow exceptions:

(1) if necessary to determine “whether the agency

has considered all relevant factors and has

explained its decision,” (2) “when the agency has

relied on documents not in the record,” or 

(3) “when supplementing the record is necessary to

explain technical terms or complex subject matter”

12 - OPINION AND ORDER
[or (4)] “when plaintiffs make a showing of agency

bad faith.”

S.W. Ctr. for Biological Diversity, 100 F.3d at 1450 (quoting 

Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 703-04

(9th Cir. 1996)), and National Audubon Soc. v. U.S. Forest Serv.,

46 F.3d 1437, 1447 n.9 (9th Cir. 1993)). See also Cachil Dehe

Band of Wintun Indians v. Zinke, 889 F.3d 584, 600 (9th Cir.

2018)(same).

Plaintiff asserts the Court should permit further discovery

and allow Plaintiff to supplement the record in this case because

it is necessary to determine whether the Army considered all

relevant factors and has adequately explained its decision and/or

whether the Army relied on documents that are not in the

administrative records in reaching its decision. Plaintiff,

however, only relies on his own allegations to support his

request. Specifically, Plaintiff asserts “[t]here are clearly

documents, or at least conversations, that are not reflected in

the administrative record, and which led to the Army’s decision.” 

Plaintiff notes the Army investigated Plaintiff’s conduct “over

ten years ago” and decided to retain him, and then later the Army

reversed its decision. According to Plaintiff, “[i]t stands to

reason that there is some actor, additional information, or other

communications behind the Army’s decision to reverse its

[decision]. . . . Yet there is nothing in the administrative

record that reflects who actually was involved, and when and why

13 - OPINION AND ORDER
the ultimate decision was made.”

Plaintiff’s assertions are belied by the existing record,

which reflects Army Directive 2013-21 issued in 2013 changed the

landscape of the Army’s decisions with respect to retention of

individuals convicted of sex crimes. In fact, Plaintiff alleges

in his Amended Complaint that the Army’s separation decision was

based on Army Directive 2013-21. The record reflects Plaintiff’s

separation decision went up through his chain of command with

recommendations at each level until a final decision approving

the separation was rendered by Assistant Secretary of the Army

Wada. AR 330-339. The record also contains a 30-page decision

reciting facts, authority, and analysis by the ABCMR related to

the decisionmaking process involved in Plaintiff’s separation. 

Plaintiff’s arguments as to the sufficiency of the record,

however, relate to the weight of the evidence rather than

establishing a lack of evidence. 

As to Plaintiff’s assertion that the record is incomplete

because it does not contain certain emails and letters that his

attorney sent to various Army representatives after the ABCMR

reached its decision, the Ninth Circuit has repeatedly made clear

that “‘exceptions to the normal rule regarding consideration of

extra-record materials only apply to information available at the

time, not post-decisional information.’” Cachil Dehe, 889 F.3d

at 600 (quoting Tri-Valley CAREs v. U.S. Dep’t of Energy, 671

14 - OPINION AND ORDER
F.3d 1113, 1130 (9th Cir. 2012)). 

Finally, 42 C.F.R. § 137.309 makes clear that “civil

discovery [is] not permitted in APA proceedings.” Courts have

held when a court reviews agency actions under the APA, “the

standard discovery tools of civil litigation— including

depositions, interrogatories, and, germane here, wide-ranging

document production of materials that may potentially lead to

admissible evidence—do not apply.” Comprehensive Cmty. Dev.

Corp. v. Sebelius, 890 F. Supp. 2d 305, 312 (S.D.N.Y. 2012). 

See also Bark v. Northrop, 2 F. Supp. 2d 1147, 1152 (D. Or. 2014)

(same). In fact, district courts have granted motions for

protective orders prohibiting discovery in APA proceedings. For

example, in Sierra Club v. U.S. Dep't of Energy the plaintiffs

alleged the defendants had unlawfully failed to comply with NEPA. 

26 F. Supp. 2d 1268, 1272 (D. Colo. 1998). The plaintiffs

propounded interrogatories and requests for production of

documents to the defendant, and the court concluded limited

discovery was not warranted because the plaintiff failed to

establish that the court could not determine whether the

defendants' actions were arbitrary and capricious based on the

administrative record. Id. at 1271. See also Int'l Jr. Coll. of

Bus. & Tech., Inc. v. Duncan, 937 F. Supp. 2d 202, 206 (D.P.R.

2012)(concluding plaintiffs' argument that the administrative

record did not fully explain the agency's reasoning with regard

15 - OPINION AND ORDER
to the challenged actions did not entitle plaintiffs to engage in

fact-finding and noting “the narrowness of the APA action for

judicial review weighs heavily against discovery.”).

In summary, Plaintiff fails to establish any of the narrow

exceptions to the general rule apply that would permit this Court

to consider extra-record materials. In addition, the Court

concludes the administrative record in this matter is

sufficiently developed for the Court to evaluate adequately

whether Defendant’s decision violated the APA or supports a writ

of mandamus. The Court, therefore, denies Plaintiff’s Amended

Motion for Limited Discovery and to Supplement the Administrative

Record.

CONCLUSION

For these reasons, the Court DENIES Plaintiff’s Amended

Motion (#48) for Limited Discovery and to Supplement the

Administrative Record.

IT IS SO ORDERED.

DATED this 14th day of June, 2018.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States Senior District Judge

16 - OPINION AND ORDER