Case: 22-1232 Document: 39 Page: 1 Filed: 11/08/2022
`
`NOTE: This disposition is nonprecedential.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, Wash-
`ington, DC, for defendant-appellee. Also represented by
`BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
`MCCARTHY.
`
`______________________
`
`
`
`
`
`NOTE: This disposition is nonprecedential.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, Wash-
`ington, DC, for defendant-appellee. Also represented by
`BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
`MCCARTHY.
`
`______________________
`
`
`
`
`
`Case: 22-1232 Document: 39 Page: 2 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 active-
`duty 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 assis-
`tance at Hanscom Air Force Base. On December 21, 2010,
`Mr. Crumley received a Letter of Admonishment (“LOA”)
`for allegedly disrespectful and uncooperative behavior dur-
`ing his interactions with Hanscom personnel. The LOA be-
`came 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 reten-
`tion. He received an honorable discharge effective
`March 1, 2012.
`
`
`“App’x” refers to Mr. Crumley’s Appendix.
`
`1
`
`
`
`Case: 22-1232 Document: 39 Page: 3 Filed: 11/08/2022
`
`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 re-
`view 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—seek-
`ing 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 de-
`fects and that the RIF Retention Board improperly consid-
`ered 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. Ac-
`cording to the court:
`[Mr.] Crumley had notice, multiple chances to re-
`spond, a clear understanding of the contents of the
`LOA, UIF, and [Training] Report, and suffered no
`substantial deprivation of rights as a result. Ac-
`cordingly, [he] has failed to show that the . . . spe-
`cial board’s decision was arbitrary, capricious,
`contrary to law, or unsupported by substantial evi-
`dence. The RIF [Retention] [B]oard properly
`
`
`2 The Court of Federal Claims had previously dis-
`missed an earlier-filed complaint for lack of jurisdiction be-
`cause Mr. Crumley had not yet sought special-board
`review. Crumley v. United States, 122 Fed. Cl. 803 (2015)
`(“Crumley I”).
`
`
`
`Case: 22-1232 Document: 39 Page: 4 Filed: 11/08/2022
`
`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) (“Crum-
`ley III”) (nonprecedential).
`
`III
`In July 2019, Mr. Crumley again applied for Board cor-
`rection of his military records. He asserted that, while lit-
`igating Crumley II, he learned that the Training Report
`“never actually became a part of” his official military per-
`sonnel file and was therefore “erroneously considered by
`the RIF Retention Board.” App’x 78. The Air Force Eval-
`uation/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 sup-
`porting his request. Mr. Crumley maintains that he timely
`commented on the advisory opinion via written correspond-
`ence dated June 25, 2020 (still within the thirty-day win-
`dow). 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 opin-
`ion.
`In February 2021, Mr. Crumley brought another action
`in the Court of Federal Claims—again for wrongful dis-
`charge, 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
`
`
`
`Case: 22-1232 Document: 39 Page: 5 Filed: 11/08/2022
`
`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 appli-
`cation by failing to wait for and consider his timely com-
`ments 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 govern-
`ment and dismissed the complaint as barred by claim pre-
`clusion. 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 mer-
`its; and (3) the second claim is based on the same set of
`transactional facts as the first (i.e., the claims share a com-
`mon “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)). Be-
`cause Mr. Crumley did not dispute that the first two re-
`quirements were met, the court focused on the third:
`whether the instant claim shared a common nucleus of op-
`erative facts with that in Crumley II. The court concluded
`that it did:
`In both cases, [Mr.] Crumley alleged facts that re-
`late 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 mil-
`itary record, including the LOA, UIF, and Training
`Report, the [RIF Retention Board]’s decision to
`non-select him for retention, and the [Board]’s de-
`nial of his request for relief from discharge. Fur-
`ther, in both cases, plaintiff sought the same relief:
`reinstatement, correction of his military records,
`and back pay.
`
`
`
`Case: 22-1232 Document: 39 Page: 6 Filed: 11/08/2022
`
`6
`
`Id.
`
`CRUMLEY v. US
`
`The Court of Federal Claims also rejected Mr. Crum-
`ley’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 ba-
`sis for avoiding claim preclusion. See id. at *5 (cleaned up).
`But, in its view, these alleged facts were not materially rel-
`evant to Mr. Crumley’s wrongful-discharge claim because
`they could not “affect the outcome of the suit under the gov-
`erning law.”3 Id. (cleaned up).
`As to the Training Report, the court noted that it con-
`tained only one negative statement regarding the events
`underlying the LOA: “During this period, [Mr.] Crumley
`displayed disrespectful and unprofessional behavior to-
`ward” 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. In-
`deed, the LOA itself contained the very same negative in-
`formation: “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 discov-
`ered it years earlier while litigating Crumley II and there-
`fore 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.
`
`
`
`Case: 22-1232 Document: 39 Page: 7 Filed: 11/08/2022
`
`CRUMLEY v. US
`
`7
`
`LOA, the Training Report alone could not have affected the
`outcome of the [RIF Retention] [B]oard’s decision”; there-
`fore, whether it was included in Mr. Crumley’s official mil-
`itary personnel file was not material to his wrongful-
`discharge claim. Id.
`As to the Board’s alleged premature denial of the July
`2019 application, the court’s reasoning flowed from its de-
`termination regarding the Training Report. Mr. Crumley
`based his July 2019 application on the same Training Re-
`port 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. Crum-
`ley’s] response, it was error without injury as the substance
`of the Training Report was already before the RIF [Reten-
`tion] [B]oard from other documents.”). The court therefore
`dismissed Mr. Crumley’s complaint as barred by claim pre-
`clusion.
`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’ dis-
`missal 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 preclu-
`sion 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, ac-
`cording to the court, being new wasn’t enough; new alleged
`facts also needed to be material. See id.; see also Whole
`
`
`
`Case: 22-1232 Document: 39 Page: 8 Filed: 11/08/2022
`
`8
`
`CRUMLEY v. US
`
`Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2305 (2016)
`(endorsing the approach outlined in section 24 of the Re-
`statement (Second) of Judgments, which “notes that devel-
`opment 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 mate-
`rial. 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 determi-
`nation 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’
`
`
`It’s all the more conspicuous given that (1) the
`4
`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.
`
`
`
`Case: 22-1232 Document: 39 Page: 9 Filed: 11/08/2022
`
`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, with-
`out any developed argument from Mr. Crumley on the ma-
`teriality issue—and there is none—he has given us no basis
`to disturb the Court of Federal Claims’ claim-preclusion de-
`termination and resultant dismissal. So we affirm.
`CONCLUSION
`We have considered Mr. Crumley’s remaining argu-
`ments and find them unpersuasive. For the foregoing rea-
`sons, we affirm.
`
`AFFIRMED
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
