Mark Wilhelm v. US Dept. of Navy Bcnr ( 2018 )

FILED
NOT FOR PUBLICATION
MAR 19 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK C. WILHELM, No. 16-35532
Plaintiff-Appellant, D.C. No.
2:15-cv-00276-TOR
v.
U.S. DEPARTMENT OF THE NAVY MEMORANDUM*
BOARD FOR CORRECTION OF
NAVAL RECORDS; RICHARD V.
SPENCER, Secretary of the Navy; JAMES
N. MATTIS, Secretary of the Department
of Defense
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief Judge, Presiding
Submitted March 15, 2018**
San Francisco, California
Before: FERNANDEZ, MCKEOWN, and FUENTES,*** Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Julio M. Fuentes, United States Circuit Judge for the U.S. Court
of Appeals for the Third Circuit, sitting by designation.
Mark C. Wilhelm appeals the District Court’s dismissal of his Constitutional
and Administrative Procedure Act claims against the U.S. Department of the Navy
Board for Correction of Naval Records (“Board”), Richard V. Spencer. and James
N. Mattis (collectively, “Defendants”). We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
The District Court dismissed Wilhelm’s Constitutional claim because it
concluded that the claim was barred by the statute of limitations. We need not
address whether Wilhelm’s Constitutional claim is in fact barred by the statute of
limitations because we agree with the Defendants that Wilhelm has waived his
claim. In his opening brief, Wilhelm does not argue that the Defendants violated
his Constitutional rights. Instead, he explains that his Administrative Procedure
Act claim is his sole focus, stating that he “asks only that the [Board] recognize
that [a] form of legalized discrimination existed and then to weight whether or not
[he] should now have his record corrected.” Appellant’s Brief at 15 (emphasis
added). Furthermore, in his Reply brief, Wilhelm does not take issue with the
Defendants’ assertion that he has abandoned his Constitutional claim. Accordingly,
we conclude that Wilhelm has waived his Constitutional claim. Smith v. Marsh,
194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised by a party
in its opening brief are deemed waived.”).
We turn then to Wilhelm’s claim under the Administrative Procedure Act.
The Board’s decision to decline to change records “‘can be set aside if [it is]
arbitrary, capricious, or not based on substantial evidence.’” Guerrero v. Stone,
970 F.2d 626, 628 (9th Cir. 1992) (quoting Chappell v. Wallace, 462 U.S. 296, 303
(1983)). In this case, the Board’s decision was not arbitrary or capricious. Even
though the Board incorrectly stated that Wilhelm was not charged with any
violations relating to alleged homosexual acts, its decision was supported by other
considerations. Significantly, as the Board noted, Wilhelm pled guilty to charges
unrelated to his sexual orientation, including making false official statements,
wrongfully appropriating property and engaging in conduct unbecoming an officer.
See Excerpts of Record at 102. Additionally, the Board appropriately requested and
considered the advisory opinion from the Office of the Judge Advocate General.
See 32 C.F.R. §§ 723.3(e)(4), 723.6(c), 723.8(b)(2).
AFFIRMED.