MAJOR BARTLETT D. L UDLOW, P laintif f,
v. HONORABLE RAY M ABUS, Secre tary of the Navy, Defendan t.

UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action 10-00236 (HHK )

MEMORAN DUM OP INION Plaintiff Ba

rtlett D. Ludlow, a Major in the U .S. Marine Corps, bring s this action ag ainst Ray Mabus, in his official c apac ity as Secr etar

y of the Na vy , under the Administrative Procedur e Act (“ APA”), 5 U .S.C. § 706. L udlow contends that the B oard f or Corre ction of Naval Recor ds
err ed by ref using to re move from L

udlow’s servic e re cord a

n adver se fitness re port related to a 2006 helicopter

cra sh. Be fore the Court are the par ties’ cr oss-motions for summary judgme nt [## 7, 10] . Upon consider ation of the motions, the oppositions t here to, and the administrative
rec ord, the Court conc ludes that Ludlow’s motion must be g rante d and the Sec reta ry ’s motion must be denied.
I. BACKG ROUND A. The Board f

or Cor rec tion of

Naval Rec ords 10 U.S.C. § 1552 authorizes the secre tary of a military

depar tment to “corr ect a

ny milit ary rec ord of the Sec reta

ry ’s depa rtment when the Secre tary considers it nec essar

y to corre ct
an er ror or remove an injustice.” Id . § 1552(a) (1). In most cases, “ such cor rec tions shall bemade by

the Secr etar

y actingthroug h boards of civilians of the executive pa rt of that military depar tment,” and “ under pr ocedur es established by the Secr etar

y conce rned.” Id . § 1552(a) (1), (3). The Boa

rd for Correc tion of Nava l Records (“ the B oard” ) oper ates pursua nt to this authority
. See 32 C.F.R. § 723.1–.11. The B oard’ s function is “to consider applications prope rly befor e it for the pur

pose of de termining the exist ence of er ror or injusti ce in the na

val re cords of
curr ent and f

ormer me mbers of the Navy and Mar ine Corps, to make re commendations to the Secre tary or to take c orre ctive ac tion on the Secre tary ’s beha lf when a uthorized.” Id . § 723.2. B. F actual Background On Fe bruar

y 17, 2006, a pair

of Mar ine Corps helicopter s were involved in a cr ash off the coast of D jibouti; ten servic e member s were killed. A.R. at 9, 99. At the time, Ludlow was the office r in cha

rg e of the unit to which the helicopter s belong ed. A.R. at 9. A f ew da y s later, the Marine Corps initiated a

n command investig ation of the incide nt, which re sulted in a repor t dated April 11, 2006. On May

6, J ohn F. Sattler, Commander , Marine F orce s Central Command, endorse d the re port, finding that “L udlow’s fa ilures as the [office r in cha rg e] are dir ectly

related to this m ishap,” a

nd that “[a]ppropriate administrative a nd/or disciplinary

action should be taken.” A.R. 100–01. The ne x t month, L udlow rec eived a n adver se fitness re port based on the results of the command investig ation. A.R. 2–7. Ludlow submitt ed a r ebuttal to the adve rse f itness report, arguing that he per formed his duties in a c ompetent and pr ofessional manne r. A.R. 3–6. L udlow then re ceive d a letter

from his commandingg ener al stating that Ludlow was not qualified f or a promotion to li eutena

nt colonel (for

which he ha d been a

pproved pr ior to the ac cident); L udlow submitt ed a r ebuttal to that letter a s well. A.R. 102–08. In Fe bruar y 2007, the Commandant of
2the Marine Corps rec ommended to the Secr etar y that he re move Ludlow from the lieutena nt colonel promotion list for fiscal y ear 2007. A.R. 9–12. The Secr etar y did so. A.R. 23. In May 2008, Ludlow petitioned the Perfor mance Evaluation Review B oard ( “PERB” ), which is the for

um of first re sort for Ma

rine Corps fitness re port appe als, to remove the adver se fitness repor

t from his service rec ord. Afte r re ceivingan advisory opinion from the J udg e Advocate Division (“JAD”) on L udlow’s petition, the PERB conc luded that the fitness re port
was a dminist ratively

and proc edura lly

corr ect a nd complete; ac cording ly , it found that the fitness repor t should remain par

t of Ludlow’s re cord, a

nd forwa rded L udlow’s petition to the Boa rd for final ac tion. A.R. 31–33. Ludlow petitioned the B oard f or re lief, see A.R. 77–98, alleg ing that the re port containe d numerous fa ctual inac cura cies a nd seven “ materia l error s.” A.R. 78. In September 2008, a fter g iving L udlow an opportunity

to reviewand re spond to the J AD and PERB opinions, the B oard de nied L udlow’s petition. A.R. 25–26. The B oard f ound that Ludlow’s evidenc e wa s “insufficie nt to establish the exi stence of proba ble mater ial err or or prejudice ,” and “ substantially concur red” with the PERB and JAD opinions. A.R. 26. I n J une 2009, Ludlow soug ht rec onsideration of the Boa rd’s de cision, arg

uing that it had applied the wrongstandard of

revie w in rea chingits ini tial determination. The B oard de nied L udlow’s reque st on the g round that it does not rec onsider its decisions absent “ new a nd materia l evidence or other matter not previously considere d.” which L

udlow had not produc ed. A.R. 14. I t also stated that it had applied “ the cor rec t standard of

proof” in denying L

udlow’s petition. A.R. at 14. Ludlow commence d this action in October 2009, se ekingrevie w of the B oard’ s decision under the APA.

3II. LEGAL STANDARD

Dec isions of the mili tary

revie w boar ds are , like other fe dera l ag ency action, subjec t to revie w under

the APA, Frizelle v. Slater , 111 F.3d 172, 176 ( D.C. Cir. 1997), which re quires a revie wing court to “hold unlaw ful and set a side ag ency action, finding s, and conc lusions found to be . . . ar bitrary , capr icious, an abuse of discre tion, or otherwise not in ac corda nce w ith law.” 5 U.S.C. § 706(2)(A)
. Howeve r, the fina l decisions of military corr ection boar ds are revie wed 1 under “ an unusually

defe rential a

pplication of the ‘a

rbitrar y and ca pricious’ standa

rd.” Kreis v. Sec’ y of the Air Force , 866 F.2d 1508, 1514 ( D.C. Cir. 1989); accord Cone v . Caldera , 223 F.3d 789, 793 (D.C. Cir. 2000). This is both because the statutory languag e author izi ng the Secr etar y to corre ct er

rors a ccor ds him ex pansive discr etion, see Kreis , 866 F.2d at 1514 (citing 10 U.S.C. § 1552(a) ), and be cause “the c ourts [shoul d] not become a for um for appe als by

ever y [service member] dissatisfied with his or her ra tings, a result that would destabilize mili tary command and take the judiciary

far afie ld of its area

of compe tence .” Cone , 223 F.3d a t 793. Even so, like all other a g ency

decisions, those of the r eview boa rds must be explained sufficiently to allow for eff ective r eview. See D ickson v . Sec’ y of Def ., 68 F.3d 1396, 1404–06 ( D.C. Cir. 1995).
III. ANALYSIS The pa rties’ a rguments focus lar g ely

on two questions: whether the Boa rd (a nd J AD and PERB) applied the proper standard of

revie w, and whe ther the B oard’ s decision had f actua l
Summary judgme nt is the appropriate mecha nism to resolve an APA c halleng e to 1 ag ency action. See Stuttering Found. of Am. v. Springer , 498 F. Supp. 2d 203, 207 (D.D .C. 2007) (c iting Richards v. INS, 554 F.2d 1173, 1177 & n.28 (D.C. Cir. 1977)). B eca use, howe ver, “the district judg e sits as an a ppellate tribuna l” in such ca ses, Am. Bioscienc e, Inc . v. Thompson , 269 F.3d 1077, 1083 ( D.C. Cir. 2001), the usual summary judgme nt standard doe s not apply
. 4support. But L udlow also adva

nces, a lbeit briefly , another argument: that the Boa

rd’s opinion is too cursory

to allow for e ffe ctive judicial re view. He asser ts that the Boa

rd’s re asoningis unclear and that its resolution of the fa cts ca nnot be discer

ned fr om its opi nion. Pl.’s Mem. in Opp’n to Def .’s Mot. & in Supp. of Pl.’s Cross-Mot. for Summ. J . (“Pl.’s Mem.”) at 5. The Sec reta ry does not respond to this argument. Reg ardle ss, Ludlow is corre ct. I t is ax iomatic that befor e the Court ca n revie w an a g ency ’s dec ision, it must know what the ag ency

decide d, and why
. See SE C v. Chenery Corp. , 332 U.S. 194, 196–97 (1947); Dickson v. Sec ’y of De

f ., 68 F.3d 1396, 1404–06 ( D.C. Cir. 1995); Pub. Citiz en, Inc . v. FAA , 988 F.2d 186, 197 (D.C. Cir. 1993). Thus, the APA’s a rbitrar y -and- capr icious standard “ mandat[es] t hat an ag ency . . . provide a

n explanation that will enable the cour t to evaluate the ag ency ’s rationale at the time of de cision.” Pension Bene fit Guar. Cor

p. v. LTV Corp. , 496 U.S. 633, 654 (1990). This is true even unde r the unusually defe rential standa

rd ac corde d to mili tary

revie w boar ds. See D ickson , 68 F.3d a

t 1404–06 (holding that an Army Boa rd for Correc tion of Milit ary

Records decision wa s arbitra

ry and ca pricious bec ause it “omitted the c ritical step [of] connectingthe fac ts to the conclusion”). Her e, the B oard’ s opinion denying L udlow’s application for cor rec tion does not allow the Court to discern its rea soning. The opinion is t wo pag es long , and conta ins one single para g raph of (c ursory

) ana ly sis. By

contra st, Ludlow’s statement to the B oard in support of his a pplication 2
The e ntirely

of the B oard’ s analy sis is contained in this parag raph: 2 Although the fitness repor t at issue did not expressly s t ate y ou wer e relieve d of command, the Boa rd n o ted t hat t he reporting senior [ office r] did state . . . that y ou wer e “not qualified to command” and that [ h e] “w o uld not allow [y ou] to lead Marines in [hi s] command in the future.” The Boa rd was unable to find that y our primary duty was not “future operations office r” as shown in section A, item 4 of the 5ran to twe nty -one pa g es, see A.R. 78–98, and identified se ven discre te “mate rial er rors” associate d with the adver se fitness re port, A.R. at 78–79, 88–98, and numer ous alleg ed fa ctual inacc urac ies. A.R. at 80–88. His response s to the PERB and JAD opinions l ikewise a ddresse d in detail the re port’s alleg ed fa ctual inac cura cies. SeeA.R. 40–45, 57–62, 68–72. Be fore this 3 Court, Ludlow prese nts thirteen pag es of a rgument as to the fa ctual basis and me rit of the Boa rd’s c onclusion, seePl.’s Mem. at 5–18, which the Sec reta ry counter s with eleven of

his
own. See Def

.’s Mem. in Supp. of Def

.’s Mot. for Summ. J . (“D ef.’ s Mem.”) at 14–21; Def.’s Reply to Pl.’s Mem. at 5–7. And the administrative re cord is five hundred a nd thirty one pag es long. T he mismatch betwe en the leng th and scope of the B oard’ s decision and the volume of materia ls presente d to the Boa rd and this Court is telling. More importantly , howeve r, the B oard’ s decision is simply silent as to most of the issues raised by Ludlow. For

example, the fitness repor t stated that Ludlow “routinely failed to c omply with . . . directives pe rtainingto . . . human fac tors.” A.R. 2. Simi larly , Sattler wrote in his 2 endorse ment that Ludlow’s unit “did not conduct monthly Human F actor s Councils as mandated
fitness repor

t. Finally , the Boa

rd found the provisions of [naval re gu l ations] reg ardingthe concept of privileg e of information adduced in airc raf t mishap board proce eding s did not ex cuse your dec eptions alleg ed in the conte sted repor t. A.R. 26. The a dminist rative r ecor d appea rs to contain thre e ver sions of Ludlow’s re sponse 3 to the PERB and JAD opinions, but they are substantially

identical. SeeA.R. 40–45, 57–62, 68–72. “Human f

actor s is a discipline that incorporates a study of human be haviors, 2 limit ations and ca

pabilities into t he desig n of produc ts, sy stems and equipment.” W inters v. Fru-Con Inc. , 498 F.3d 734, 741 ( 7th Cir. 2007). Marine huma n fac tors councils “a

re c onvened to identify

human fa ctors that could a dverse ly aff ect a pilot or aircr ewman’ s perf ormanc e.” A .R. 171. 6by

[Marine Corps Orde r] 5100.29.” A.R. 147. Ludlow’s position is bot h that he wa s not in fact require d by

Marine Corps r egulations to hold formal human fac tor counc ils, and that he held informal human f

actor councils any

way . Pl.’s Mem. at 8; see A.R. 69, 84–85. But how did the Boa rd re solve this issue? Did it conclude that L udlow was re quired to conve ne for mal monthly councils? Did it acce pt that informal meeting s would be suffic ient, but determine tha t Ludlow
never held any ? Or did it acc ept Ludlow’s human-f actor s arg ument in the entirety

but
never theless conc lude that he ha d not demonstrated that the r eport should be e x cised fr om his
rec ord? There is simpl y

no way for the Court to know. And the same is true as to most of 3 Ludlow’s other a

rguments. Consequently , the Secr etar y ’s extensive rebuttal of L udlow’s ar guments (and, f or that matter, L udlow’s ar g uments themselves) a re simply beside the point; bec ause the Court’s task is “to identify

whether ‘the de cision making proce ss was def icient, not whether

[t he] decision was
corr ect,’ ” Dickson , 68 F.3d at 1405 (quoting Kreis v. Sec ’y of the Air Forc e , 866 F.2d 1508, 1511 (D.C. Cir. 1989)), the Court c annot sustain an unexplained ag ency decision “on the basis of . . . theories that the a g ency

might have adopted a

nd finding s that (per

haps) it might have made .” Envtl. Def. Fund, I

nc. v. E PA , 898 F.2d 183, 189 ( D.C. Cir. 1990); see also W isc.’s Envtl. Dec ade, Inc . v. SEC , 882 F.2d 523, 528 ( D.C. Cir. 1989) (stating that revie wing courts ca nnot “ac cept the r ationalizations first advance d by counsel in . . . litigation [ or] entertain[] arguments not relied upon by

the ag ency

itself” (c iting SEC v. Chenery Corp ., 318 U.S. 80 (1943))) . The

The Sec reta

ry contends that Mar ine Corps regulations require units li ke L udlow’s 3 to convene monthly

human fa ctors counc ils. But, even if that is true, the Secr etar

y ’s asser tion that “the B oard a

ppropriate ly

took these [regulations] into consideration” in de ny ing L udlow’s petition, Def.’s Me m. at 16, is mere spe culation, unsupported by the B oard’ s own opinion. 7parties, pe rhaps without re alizing it, are not arguing a bout the merits of the B oard’ s decision at all; they are debatingwhether

the fitness re port was f

lawed. B ut that question is not ul timately befor e the Court, which must dec ide whethe r the Board’s dec ision was “ arbitra ry , capr icious, an abuse of discretion, or othe rwise not in ac corda nce w ith law.” 5 U.S.C. § 706(2)(A ). In light of the B oard’ s cursory

treatment of L

udlow’s ar g uments, the Court must conclude that it was. Acc ording ly , this action will be remande d to the Boa rd for a more rea soned explanation of its decision. See D ickson , 68 F.3d at 1407 (rema nding to the A rmy

Boa rd for Correc tion of Milit ary Records be cause “[w]here an a g ency ‘has f ailed . . . to explain the path it has taken, we have no choice but to remand for

a re asoned e x planation.’” (quoting Tex Tin Corp. v. EPA , 935 F.2d 1321, 1324 (D.C. Cir. 1991))) ; Benv enuti v. De p’t of Defense , 587 F. Supp. 348, 356–57 (D.D .C. 1984) (same).
IV. CONCLUSION For the fore g oing r easons, de fenda nt’s motion for summary

judgme nt [ #7] m ust be denied a nd plaintiff’s cr oss-motion for summary judgme nt [ #10] m ust be g rante d. This action will be rema

nded to the B oard f

or proc eeding s not inconsistent with t his memorandum opinion. A sepa rate order is docketed c oncurr ently with this opi nion.

Henr y H. Kenne dy , J r. United States District J udg e

8