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Appeal filed in ERB'd sailors' lawsuit

Aug. 9, 2013 - 06:00AM   |  
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Lawyers for about 300 sailors kicked out of the Navy last year filed an appeal in late July in their case against the service — nearly two months after losing their latest court battle.

Their case questioned the Navy’s logic in booting 2,946 midcareer sailors via an enlisted retention board, but the Navy countered that they had the authority to separate sailors, most of them in the middle of their contracts. Judge Lynn Bush, the federal claims court judge who heard the suit, sided with the Navy and dismissed the case.

Attorney E.W. Keller, who is representing the ERB’d sailors seeking reinstatement into the Navy or compensation for lost wages, said he plans to file his reasons for the appeal by Aug. 13.

News of this appeal is the latest turn in a case that has presented a double-edged sword for the service. Faced with bad publicity and anxiety in the fleet, personnel officials have admitted that their manning cuts were too deep while maintaining that the service had the right authority and the board was fair. They now say ERB properly unclogged overmanned ratings and led to the soaring advancement rates in recent cycles.

Keller told Navy Times that his appeal will focus on the judge’s refusal to admit evidence about the Navy’s manpower shortfall after the ERB. These exhibits included three Navy Times articles about personnel issues, material that supports Keller’s contention that the cuts were ultimately unnecessary and contributed to the fleet’s manpower shortage.

Judge Bush ruled this argument was irrelevant. “It is of no consequence that some of the factual underpinnings of the ERB process might have been erroneous,” she wrote in her June 6 decision. In other words, as long as officials thought they needed to lay off sailors, it doesn’t matter whether that decision turned out to be right.

“We don’t think the Navy has authority in any way to fire sailors who are on the doorstep of retirement based on ‘speculation,’” Keller said in a Friday phone interview. “If they can do that, then the statutes as to illegal discharges — you might as well just erase them all.”

A spokesman for the chief of naval personnel was unable to comment on the lawsuit appeal, but said the Navy was better for the service of the ERB’d sailors.

“We had always said it was a tough decision but one that we had to make, and we are grateful for their service,” said CNP spokesman Lt. Cmdr. Chris Servello.

Bush, who worked for nine years as a Navy attorney, sided with her former employer in nearly all rulings — including ruling against a motion asking her to recuse herself because of these connections.

Keller, who is an Oklahoma-based lawyer, said his state has clear rules preventing judges from hearing cases where they’ve represented either of the parties. While he said there is no similar federal rule, he believes that Bush should have disqualified herself because of the mere appearance of a conflict of interest and said he intends to make this a basis for his appeal.

“There’s nothing the Navy, who she represented before, asked for that she didn’t grant,” Keller said.

The spouse of a former sailor and creator of the group Sailors Against ERB said they will keep fighting for a cause that bears important implications for every bluejacket and has given officials pause.

“They’re going to think twice before breaking the faith with any more sailors,” said Jennifer Beasley, the wife of former Aviation Electronics Technician 1st Class (AW) Walter Beasley, who is one of the plaintiffs. “They’re not going to illegally cut any more sailors’ contracts like they did with the ERB.”

Beasley said she and many other ERB’d sailors and spouses were staying optimistic for their case, especially if it is heard by a new judge.

“We’re all just waiting to see what happens,” Beasley added. “We went into it knowing that it wasn’t going to be an easy battle.”

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