A panel of three judges from the U.S. Court of Appeals for the Federal Circuit upheld the Federal Claims Court's decision to dismiss the legal challenge to the 2011 ERB by 300 former sailors. (Navy)
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Three hundred former sailors suing forcompensation from or reinstatement in the Navy after being booted by the deeply unpopular 2011 enlisted retention boards lost their appeal, likely closing the book on their challenge.
A panel of three judges from the U.S. Court of Appeals for the Federal Circuit upheld the Federal Claims Court’s decision to dismiss their challenge to the ERB, meaning that the case is over, barring an appeal to the Supreme Court.
In a tersely worded, 13-page decision, the judges agreed with federal claims court Judge Lynn Bush, who ruled that the court had limited authority to interfere in personnel decisions made by the Navy and dismissed the idea that the court had the right to challenge the merits of the board.
“The Navy has wide discretion to manage its workforce, and its decisions to institute the ERB and honorably discharge its sailors are ‘unquestionably beyond the competence of the judiciary to review.’ ” the ruling states, quoting from a previous ruling on a similar challenge.
The former sailors, represented by attorney E.W. Keller, also argued that the Navy violated its own regulations by not giving proper notice and justification for the ERB, failed to give the sailors an opportunity to be heard by the board, and used a process that violated “minimum concepts of basic fairness” — booting some sailors only days or months from their 15-year mark and eligibility for early retirement.
The judges sided with the Navy, concluding that Secretary Ray Mabus provided valid reasons for the cutting board. In a March 23, 2011, memo, Mabus said he was convening the board to “optimize the quality of the force,” meet end strength targets and “ensure we retain our best with a balance of seniority, skills, and experience.”
The judges stated the structure of the board did not give sailors the right to a hearing. Furthermore, because the sailors received honorable discharges, and were given the chance to cross-rate, the board could not be considered unfair.
“The Navy informed all sailors of the institution, schedule and criteria for the ERB; provided a list of overmanned ratings; and allowed sailors in overmanned ratings to apply for conversion to other ratings,” the decision states.
Finally, the judges dismissed evidence presented by Keller that the Navy wasn’t overmanned, challenging the premise of the board. The judges said that evidence was only relevant to the merit-based challenge to the ERB, which it already said it had no authority over.
Keller was not available for comment by press time July 18. It’s unclear whether the former sailors will appeal the decision to the next-highest level — the Supreme Court.
The enlisted retention board was unprecedented when it convened in 2011. In total, it separated nearly 3,000 sailors and unleashed waves of insecurity across the force — and a furor from commands who said they lost mission-critical sailors with no reliefs in sight.
However, the ruling is in keeping with precedent, one where courts are hesitant to get involved in military personnel matters, said military law expert and attorney Raymond Toney.
“It looks like the judges gave these arguments short shrift,” Toney said in a July 16 phone interview. “It’s a basic rule that judges don’t run the military, especially when it comes to personnel decisions. You would have to show that they were doing it in a discriminatory manner or that there was some discrepancy with due process. My take on this is that it’s a pretty dismissive decision.”
Sailors who were separated by the board took the news hard. On the “Sailors against ERB” Facebook page, commenters expressed frustration and anger at the process.
“If you join the military know this: They can and will fire you anytime they want for any reason,” Kevin Mueller wrote. “It is no more ‘secure’ of a position than with any private company with a great deal more sacrifice.”
Other vowed to press forward with the challenge.
“Fights [sic] not over,” wrote Mike Brophy. “Our lawyer promised to take this to the Supreme Court if need be at the very beginning of all this.”
The likelihood of being heard by the nation’s highest court, however, is slim. The Supreme Court receives about 10,000 appeals per year, according to its website; of those, the justices typically agree to hear between 75 and 80 cases.
Navy personnel officials agreed with the decision but said they will steer clear of ERBs going forward, said Lt. Cmdr. Chris Servello, spokesman for the chief of naval personnel.
“Navy leadership has been very clear — they have absolutely no intention of using involuntary measures such as ERB to shape the force in the future.”