Lambert v. Mabus

Lambert v . Mabus                          CV-09-354-PB   03/16/10

                    UNITED STATES DISTRICT COURT
                     DISTRICT OF NEW HAMPSHIRE


Colonel Gary E . Lambert

     v.                               Case No. 09-cv-354-PB
                                      Opinion No. 

Raymond E . Mabus, Jr.



                               O R D E R

     Colonel Gary Lambert was removed from the Reserve Active

Status List by a selective retention board (“SRB”).       He

unsuccessfully contested the SRB’s determination before the Board

of Correction of Naval Records (“BCNR”).      Lambert’s complaint

before this court challenges the BCNR’s ruling under the

Administrative Procedure Act (“APA”), 

 et seq.         The

Secretary of the Navy has responded with a Motion to Dismiss,

contending that Lambert’s complaint is nonjusticable.

     The United States Supreme Court has twice recognized in

dicta that “decisions [by military record review boards] are

subject to judicial review [by federal courts] and can be set

aside if they are arbitrary, capricious, or not based on

substantial evidence.”     Clinton v . Goldsmith, 

(1999) (quoting Chappell v . Wallace, 

 (1983)).
Moreover, all circuit courts that have addressed the question

have held that claims of this sort are justiciable when they are

brought pursuant to the APA.    See, e.g., Dibble v . Fenimore, 

 0 8 , 215-16 (2d Cir. 2008); Hanson v . Wyatt, 

 (10th Cir. 2008); Piersall v . Winter, 

(D.C. Cir. 2006).    Other cases dealing with damage actions

against military officials such as Feres v . United States, 

 (1950); Chappell, 

; United States v .

Stanley, 

 (1987); Penagaricano v . Llenza, 

(1st Cir. 1984), and Wright v . Park, 

 (1st Cir. 1993)

are distinguishable because none involve challenges under the

APA.1
        There are many good reasons why courts ordinarily should

avoid entanglement in military affairs.2    This case, however,

        1
        The Secretary’s reliance on the First Circuit’s
unpublished decision in Quinonez-Cruz v . Diaz-Colon, 

 (1st Cir. 1997) is particularly ill-advised because it is
inconsistent with the court’s later published decision in
Wigginton v . Centracchio, 

 0 4 , 512 (1st Cir. 2000),
which holds that “intramilitary suits alleging constitutional
violations but not seeking damages are justiciable.”
        2
        I do not accept the Secretary’s assertion that Lambert
has “launch[ed] a wholesale attack on the United States Marine
Corps’ fundamental determination that immediate action was
required to address the statutory overage of Reserve Colonels.”
(Reply to Pl.’s O b j . to Def.’s Mot. to Dismiss, Doc. N o . 1 0 , at
5.) In any event, I do not intend to allow the judicial power to
be used to support such an attack. Rather, the narrow issue that

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does not require the court to second-guess the discretionary

judgments of military officials. Instead, Lambert asks the court

to review a decision by a civilian board under the deferential

standard of review authorized by the APA.    All of the appellate

courts that have addressed the justiciability issue in this

context have rejected the same challenge that the Secretary has

presented in this case. I see no reason to decide the matter

differently.   Defendant’s Motion to Dismiss (Doc. N o . 7 ) is

denied.

      SO ORDERED.



                                 /s/Paul Barbadoro
                                 Paul Barbadoro
                                 United States District Judge

March 1 6 , 2010

cc:   Gary E . Lambert, pro se
      T . David. Plourde, AUSA




I will decide here is whether the BCNR acted arbitrarily or
capriciously when it denied Lambert’s request to correct his
military record.

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