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ERB lawsuit dismissed; sailors' lawyer plans appeal

Jun. 7, 2013 - 06:00AM   |  
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A Federal Claims Court judge agreed Thursday with the Navy’s motion to dismiss a lawsuit filed by about 300 sailors separated by the 2011 enlisted retention boards — a suit that sought either restoration of the sailors’ Navy service or compensation for lost wages and benefits.

Judge Lynn Bush, who served as a civilian Navy lawyer in the 1980s and ’90s, dismissed the case, stating that the Navy acted rationally and that the court cannot “intrude upon the Navy’s power to manage its active-duty workforce.”

E.W. Keller, the lawyer for the ERB’d sailors, told Navy Times he plans to appeal the decision to the U.S. Circuit Court of Appeals. He says the appeal will be successful based on two key factors — part of the wording of the opinion casts doubt on the accuracy of the ERB process, and the next judge likely won’t have Bush’s employment history.

Keller said Friday that he had yet to read the entire ruling, but he cited passages in the 30-page document that call the ERB process “speculation.” He said the Navy was aware this speculation — based upon a belief that the fleet needed to reduce its manning — was inaccurate well before the discharge date of the ERB’d sailors.

“Instead of correcting that mistake, they went ahead and discharged them,” Keller said, adding that “if this decision were to stand, the Navy would be able to discharge anybody at any time ... just on erroneous speculation. I just do not think the courts would uphold that.”

The ruling states that the 2011 ERB process, which separated 2,946 sailors on or before Sept. 1, 2012, was “rational in its inception and in its fulfillment of assigned tasks,” and that “it is of no consequence that some of the factual underpinnings of the ERB process might have been erroneous.” It also states “at a minimum, the facts adduced by the Navy were reasonably conceived, and the predicted success of the ERB to address over-manning issues was a rational speculation.”

Further, it agrees in full with nearly all of the Navy’s assertions in requesting the dismissal. The ruling stated that “nothing in the creation of the ERB or the discharges that ensued exceeded the authority” cited by the Navy in making the manning cuts. It also criticized Keller’s case, stating that the “challenges to the ERB process are not always clearly set forth or logically organized.”

The ruling also denied the plaintiffs’ motion to include supplemental exhibits that were “offered to show that the Navy should not have decided to discharge plaintiffs.” These included three Navy Times articles on the Navy personnel matters and a ratings quota chart, the ruling says. Other supplemental information was allowed by the judge, including affidavits from ERB’d sailors and a letter one wrote to his congressman outlining the ERB process.

Even with that added evidence, the court ruled that “plaintiffs’ claim for back pay and allowances is dismissed with prejudice based on the court’s view of the administrative record,” and that other claims, including those of retirement benefits for sailors separated before reaching the 15-year retirement-eligibility mark, fell outside the court’s jurisdiction.

In a statement, the Navy defended its decision to use the ERB process to remove sailors from overmanned ratings.

“Sailors who were not retained as a result of the board were offered the opportunity to apply for conversion to an undermanned rating they were qualified [for], or for transition into the Reserve component,” Cmdr. Kathy Kesler, special assistant for public affairs for the chief of personnel, said Friday in an emailed statement. “In addition to the wide range of transition assistance benefits already afforded to Sailors who separate, the Navy provided several enhanced transition assistance benefits to ERB separating Sailors.”

Momentum from dismissal?

Keller filed the suit Aug. 2 on behalf of 105 sailors — more joined as it progressed. The Navy filed its motion to dismiss Oct. 15, asserting that, among other reasons for dismissal, the U.S. Federal Court of Claims did not have jurisdiction over the ERB proceeding.

Keller also filed a motion asking Bush to recuse herself. It was denied.

A former Navy spouse who created the “Sailors Against ERB” Facebook page was not surprised by the ruling, nor did she express any disappointment.

“This is just the best news for our case that we could have possibly expected,” said Jennifer Beasley, wife of former Aviation Electronics Technician 1st Class (AW) Walter “Beau” Beasley, one of the plaintiffs. “I think we’re going to gain more momentum with this decision.

Jennifer Beasley said the Navy’s recent personnel moves, including the discontinuation of Perform to Serve and the ease of re-enlistment being promised to some sailors in ratings that once were staffed by ERB’d sailors, have helped her side’s argument. She also reiterated Keller’s concerns about Bush’s prior Navy employment.

The Facebook page had more than 2,800 “likes” as of June 7.

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