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


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  •                                                                                        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    NOT FOR PUBLICATION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.