Ludlow v. Mabus, Civil Action No. 10–00236 (HHK).

• Court: United States District Courts. United States District Court (Columbia)
• Writing for the Court: MEMORANDUM OPINION
• Citation: 793 F.Supp.2d 352
• Parties: Major Bartlett D. LUDLOW, Plaintiff,v.Honorable Ray MABUS, Secretary of the Navy, Defendant.
• Decision Date: 24 June 2011
• Docket Number: Civil Action No. 10–00236 (HHK).

793 F.Supp.2d 352

Major Bartlett D. LUDLOW, Plaintiff,
v.
Honorable Ray MABUS, Secretary of the Navy, Defendant.

Civil Action No. 10–00236 (HHK).

United States District Court, District of Columbia.

June 24, 2011.

[793 F.Supp.2d 352]

Gary R. Myers, Gary Myers & Associates, Weare, NH, for Plaintiff.Benton Gregory Peterson, Assistant United States Attorney, Washington, DC, for Defendant.MEMORANDUM OPINION HENRY H. KENNEDY, JR., District Judge.

Plaintiff Bartlett D. Ludlow, a Major in the U.S. Marine Corps, brings this action against Ray Mabus, in his official capacity as Secretary of the Navy, under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. Ludlow contends that the Board for Correction of Naval Records

[793 F.Supp.2d 353]

erred by refusing to remove from Ludlow's service record an adverse fitness report related to a 2006 helicopter crash. Before the Court are the parties' cross-motions for summary judgment [ 7, 10]. Upon consideration of the motions, the oppositions thereto, and the administrative record, the Court concludes that Ludlow's motion must be granted and the Secretary's motion must be denied.I. BACKGROUND A. The Board for Correction of Naval Records

10 U.S.C. § 1552 authorizes the secretary of a military department to “correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice.” Id. § 1552(a)(1). In most cases, “such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department,” and “under procedures established by the Secretary concerned.” Id. § 1552(a)(1), (3). The Board for Correction of Naval Records (“the Board”) operates pursuant to this authority. See 32 C.F.R. § 723.1–.11. The Board's function is “to consider applications properly before it for the purpose of determining the existence of error or injustice in the naval records of current and former members of the Navy and Marine Corps, to make recommendations to the Secretary or to take corrective action on the Secretary's behalf when authorized.” Id. § 723.2.

B. Factual Background

On February 17, 2006, a pair of Marine Corps helicopters were involved in a crash off the coast of Djibouti; ten service members were killed. A.R. at 9, 99. At the time, Ludlow was the officer in charge of the unit to which the helicopters belonged. A.R. at 9. A few days later, the Marine Corps initiated an command investigation of the incident, which resulted in a report dated April 11, 2006. On May 6, John F. Sattler, Commander, Marine Forces Central Command, endorsed the report, finding that “Ludlow's failures as the [officer in charge] are directly related to this mishap,” and that “[a]ppropriate administrative and/or disciplinary action should be taken.” A.R. 100–01.

The next month, Ludlow received an adverse fitness report based on the results of the command investigation. A.R. 2–7. Ludlow submitted a rebuttal to the adverse fitness report, arguing that he performed his duties in a competent and professional manner. A.R. 3–6. Ludlow then received a letter from his commanding general stating that Ludlow was not qualified for a promotion to lieutenant colonel (for which he had been approved prior to the accident); Ludlow submitted a rebuttal to that letter as well. A.R. 102–08. In February 2007, the Commandant of the Marine Corps recommended to the Secretary that he remove Ludlow from the lieutenant colonel promotion list for fiscal year 2007. A.R. 9–12. The Secretary did so. A.R. 23.

In May 2008, Ludlow petitioned the Performance Evaluation Review Board (“PERB”), which is the forum of first resort for Marine Corps fitness report appeals, to remove the adverse fitness report from his service record. After receiving an advisory opinion from the Judge Advocate Division (“JAD”) on Ludlow's petition, the PERB concluded that the fitness report was administratively and procedurally correct and complete; accordingly, it found that the fitness report should remain part of Ludlow's record, and forwarded Ludlow's petition to the Board for final action. A.R. 31–33. Ludlow petitioned the Board for relief, see A.R. 77–98, alleging that the report contained numerous

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factual inaccuracies and seven “material errors.” A.R. 78.

In September 2008, after giving Ludlow an opportunity to review and respond to the JAD and PERB opinions, the Board denied Ludlow's petition. A.R. 25–26. The Board found that Ludlow's evidence was “insufficient to establish the existence of probable material error or prejudice,” and “substantially concurred” with the PERB and JAD opinions. A.R. 26. In June 2009, Ludlow sought reconsideration of the Board's decision, arguing that it had applied the wrong standard of review in reaching its initial determination. The Board denied Ludlow's request on the ground that it does not reconsider its decisions absent “new and material evidence or other matter not previously considered.” which Ludlow had not produced. A.R. 14. It also stated that it had applied “the correct standard of proof” in denying Ludlow's petition. A.R. at 14. Ludlow commenced this action in October 2009, seeking review of the Board's decision under the APA.

II. LEGAL STANDARD

Decisions of the military review boards are, like other federal agency action, subject to review under the APA, Frizelle v. Slater, 111 F.3d 172, 176 (D.C.Cir.1997), which requires a reviewing court to “hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).¹ However, the final decisions of military correction boards are reviewed under “an unusually deferential application of the ‘arbitrary and capricious' standard.” ...