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`NOTE: This disposition is nonprecedential.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
`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
` EBONIE I. BRANCH, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, for defendant-appellee. Also represented by


`Case: 22-1232 Document: 39 Page: 2 Filed: 11/08/2022
`Before MOORE, Chief Judge, LOURIE and PROST, Circuit
`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.
`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.


`Case: 22-1232 Document: 39 Page: 3 Filed: 11/08/2022
`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
`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).
`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-
`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
`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
`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
`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-
`Mr. Crumley timely appealed. We have jurisdiction
`under 28 U.S.C. § 1295(a)(3).
` 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
`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
`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
`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.
`We have considered Mr. Crumley’s remaining argu-
`ments and find them unpersuasive. For the foregoing rea-
`sons, we affirm.

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