           In the United States Court of Federal Claims
                                           No. 17-2052C
                                       Filed: April 16, 2019

                                                )
 LUKE T. WEST,                                  )
                                                )
                        Plaintiff,              )
                                                )       Supplementing The Administrative
 v.                                             )       Record; Motion To Strike.
                                                )
 THE UNITED STATES,                             )
                                                )
                        Defendant.              )
                                                )

        Claiborne W. Brown, Counsel of Record, Mandeville, LA, for plaintiff.

      Daniel S. Herzfeld, Trial Attorney, Steven J. Gillingham, Assistant Director, Robert E.
Kirschman, Jr., Director, Joseph H. Hunt, Assistant Attorney General, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, DC; Lieutenant P.
Tyson Marx, Of Counsel, Judge Advocate General Corps, United States Navy, for defendant.

        MEMORANDUM OPINION AND ORDER ON PLAINTIFF’S MOTION TO
      SUPPLEMENT OR STRIKE PORTIONS OF THE ADMINISTRATIVE RECORD

GRIGGSBY, Judge

I.      INTRODUCTION

        In this military pay action, plaintiff, Luke T. West, has moved to strike certain documents
contained in the administrative record filed in this matter on April 30, 2018, or, alternatively, to
supplement the administrative record, pursuant to Rule 7 of the Rules of the United States Court
of Federal Claims (“RCFC”). See generally Pl. Mot. The government opposes plaintiff’s
motion, with certain exceptions, upon the ground that the documents contained in the
administrative record are properly before the Court and that supplementing the existing
administrative record would not aide meaningful judicial review. See generally Def. Resp. For
the reasons discussed below, the Court GRANTS-IN-PART and DENIES-IN-PART plaintiff’s
motion.
II.     FACTUAL AND PROCEDURAL BACKGROUND1

        A.      Factual Background

        Plaintiff was discharged from the United States Marine Corps (“USMC”) on March 11,
2015, following his general court-martial conviction under Articles 81, 93, and 134 of the
Uniform Code of Military Justice (“UCMJ”). Am. Compl. at ¶ 88; see also AR Tab 155.1 at
4261. In this military pay action, plaintiff alleges that he was the victim of “a coordinated
leveling of false allegations of sexual assault against him,” during his tenure at the Marine
Forces Reserves located in New Orleans, LA, and he challenges his general court-martial
conviction and subsequent discharge from the military. Am. Compl. at ¶¶ 17, 84-94. As relief,
plaintiff requests, among other things, that the Court vacate the findings and sentence of his
general court-martial; placement in retirement status; the correction of his military records;
back pay; and other benefits. Id. at Prayer for Relief.

        As background, on December 23, 2013, the Navy’s Convening Authority referred
plaintiff to a general court-martial and charged him with, among other things, sexual assault and
various violations based upon the use of indecent language. See AR Tab 16.1 at 343-48; AR Tab
155.1 at 3459-60.2 After the Navy conducted an additional investigation into plaintiff’s conduct,
the Convening Authority referred a new case against plaintiff to a general court-martial on
August 21, 2014, and charged plaintiff with five violations of the UCMJ: (1) conspiring to
obstruct justice regarding the testimony of Staff Sgt. Rachel Allen in violation of UCMJ Article
81; (2) three specifications of failing to obey lawful regulations in violation of UCMJ Article 92;
(3) four specifications of maltreating subordinate Marines in violation of UCMJ Article 93; (4)
four specifications of assault in violation of UCMJ Article 128; and (5) three specifications of
prejudicing good order and discipline and bringing discredit to the armed forces, including
obstruction of justice, in violation of UCMJ Article 134. AR Tab 17.2 at 371-76; AR Tab 155.1
at 3459-60.



1
  The facts recited in this Memorandum Opinion and Order are taken from the administrative record
(“AR”) and plaintiff’s amended complaint (“Am. Compl.”). Except where otherwise noted, all facts
recited herein are undisputed.
2
 On April 23, 2014, the Convening Authority withdrew and dismissed the initial charges against plaintiff
without prejudice based upon a new investigation. AR Tab 16.1 at 349; AR Tab 155.1 at 3460.

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       Subsequently, the members venire found plaintiff guilty of: (1) conspiracy to commit
obstruction of justice under UCMJ Article 81; (2) maltreatment of Staff Sgt. Allen; (3) indecent
language to Staff Sgt. Allen based on the same statement under UCMJ Article 134; and (4)
obstruction of justice under UCMJ Article 134. See AR Tab 155.1 at 4261. And so, the
members sentenced plaintiff to a reprimand; reduction in paygrade to E-3; and 30-days
confinement. Id. at 4379.

       On March 5, 2015, the Convening Authority approved the verdict and sentence. AR Tab
1 at 7. Plaintiff was subsequently discharged from the military on March 11, 2015. Compl. at ¶
88.

       Thereafter, plaintiff pursued an Article 69(a) appeal. AR Tab 144 at 2796-2809. The
Navy Office of the Judge Advocate General denied plaintiff’s Article 69 request for relief on
June 9, 2017. AR Tab 156 at 4383. Plaintiff contends in this action that he was wrongfully
discharged from the military due to a “wrongfully influenced” investigation that resulted in his
conviction at general court-martial. Compl. at ¶¶ 88-91.

       B.       Procedural Background

       Plaintiff filed the amended complaint in this military pay action on January 16, 2018. See
generally Compl. On April 30, 2018, the government filed the administrative record. See
generally AR.

       On May 14, 2018, plaintiff filed a motion to supplement the administrative record and to
strike portions of the administrative record. See generally Pl. Mot. On May 18, 2018 plaintiff
filed a supplemental appendix to his motion to supplement the administrative record and to strike
portions of the administrative record by leave of the Court. See generally Pl. App’x.

       On June 1, 2018, the government filed a response and opposition to plaintiff’s motion to
supplement the administrative record and to strike portions of the administrative record. See
generally Def. Resp. On June 8, 2018, plaintiff filed a reply in support of his motion to
supplement the administrative record and to strike portions of the administrative record. See
generally Pl. Reply.

       Plaintiff’s motion to supplement the administrative record and to strike portions of the
administrative record having been fully briefed, the Court resolves the pending motion.

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III.   LEGAL STANDARDS

       A.      Supplementing And Striking The Administrative Record

       The United States Court of Appeals for the Federal Circuit held in Axiom Resource
Management, Inc. v. United States, 564 F.3d 1374 (Fed. Cir. 2009), that the “parties’ ability to
supplement the administrative record is limited” and that the administrative record should only
be supplemented “if the existing record is insufficient to permit meaningful review consistent
with the [Administrative Procedure Act].” Axiom Res. Mgmt., Inc., 564 F.3d at 1379-81; see
also Caddell Constr. Co., Inc. v. United States, 111 Fed. Cl. 49, 93 (2013). The Federal Circuit
also recognized that the Supreme Court held in Camp v. Pitts that “‘the focal point for judicial
review should be the administrative record already in existence, not some new record made
initially in the reviewing court.’” Axiom Res. Mgmt., Inc., 564 F.3d at 1379 (quoting Camp v.
Pitts, 411 U.S. 138, 142 (1973)).

       This focus is maintained to prevent courts from using new evidence to “convert the
arbitrary and capricious standard into effectively de novo review.” L-3 Commc’ns EOTech, Inc.
v. United States, 87 Fed. Cl. 656, 671 (2009) (internal quotation marks omitted); see also
Murakami v. United States, 46 Fed. Cl. 731, 735 (2000). And so, this Court has interpreted the
Federal Circuit’s directive in Axiom, within the context of bid protest matters, to mean that
supplementation of the administrative record is permitted to correct mistakes and fill gaps, but is
not permitted when the documents proffered are unnecessary for an effective review of the
government’s decision. L-3 Commc’ns EOTech, Inc., 87 Fed. Cl. at 672.

       This Court has also held that the proper standard of review for a motion to strike a
document from the administrative record is the mirror image of the one that applies to motions to
supplement the administrative record. Raytheon Co. v. United States, 121 Fed. Cl. 135, 156
(2015); see also Axiom Res. Mgmt., 564 F.3d at 1380-81. Given this, the Court will strike a
document from an administrative record if its inclusion would preclude effective, meaningful
judicial review. Raytheon Co., 121 Fed. Cl. at 156. (“[G]iven the importance of having a
properly constituted administrative record to permit meaningful judicial review, common sense
demands that the court use the same standard for motions to supplement the administrative
record and motions to remove documents from the administrative record.”).



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IV.    LEGAL ANALYSIS

       The government filed the administrative record in this matter on April 30, 2018. See
generally AR. The administrative record consists of 4,383 pages, including the record of trial
and documents related to plaintiff’s Article 69(a) appeal. Id. Plaintiff has moved to strike
certain documents contained in the administrative record, or, alternatively, to supplement the
administrative record upon various grounds. See generally Pl. Mot.

       First, plaintiff seeks to strike portions of the record of trial, found at AR 1493-1569 and
1986-2009, upon the ground that these documents were not included in the record of trial for this
matter; but, rather, added to the record after the Navy Office of the Judge Advocate General
denied plaintiff’s Article 69(a) appeal. Pl. Mot. at 1; see also Pl. Mem. at 6-7. Alternatively,
plaintiff seeks to supplement the administrative record with an alternative copy of the record at
trial. Pl. Mot. at 1; see also Pl. Mem. at 6-7.

       Second, plaintiff seeks to strike the Staff Judge Advocate Addendum, dated March 3,
2015, found at AR 10-11, upon the ground that this document is not authentic. Pl. Mot. at 1-2;
see also Pl. Mem. at 7-8. Third, plaintiff seeks to strike certain text messages contained in an
enclosure to his Rules of Court Martial (“RCM”) 1105 submission, found at AR 24-163, because
the document is illegible, or, alternatively, to supplement the administrative record with a
different copy of these messages. Pl. Mot. at 2; see also Pl. Mem. at 8.

       In addition, plaintiff seeks to supplement the administrative record with additional
correspondence between plaintiff and the Navy Office of the Judge Advocate General regarding
plaintiff’s Article 69(a) appeal. Pl. Mot. at 2; see also Pl. Mem. at 8-9. Lastly, plaintiff seeks to
strike the copy of his motion for a preliminary injunction and the exhibits thereto filed in West v.
Crawford, No. 17-1294 (E.D. LA Feb. 14, 2017), found at AR 3221-3447, or, alternatively, to
supplement the administrative record with the entire court record for that proceeding. Pl. Mot. at
2; see also Pl. Mem. at 9-10.

       The government opposes plaintiff’s motion, with certain exceptions, upon the ground that
the administrative record appropriately includes the documents that were reviewed by the final
agency decision maker that decided plaintiff’s Article 69(a) appeal. See generally Def. Resp.
The government also argues that the Staff Judge Advocate Addendum contained in the
administrative record is properly before the Court, because this document was prepared in the

                                                                                                     5
ordinary course of reviewing plaintiff’s clemency petition and was among the materials reviewed
by the Navy during plaintiff’s Article 69(a) appeal. Id. at 7-8.

       In addition, the government contends that the Court should deny plaintiff’s motion to
strike certain text messages contained in plaintiff’s RCM 1105 submission, because a legible
version of these messages is contained elsewhere in the administrative record. Id. at 8. Lastly,
the government acknowledges that the administrative record should be corrected to include
certain email correspondence between plaintiff and the Navy Office of the Judge Advocate
General and to include certain additional court filings in West v. Crawford. Id. at 9-10. And so,
the government proposes that it correct the administrative record to add these documents and
requests that the Court otherwise deny plaintiff’s motion. Id. at 10.

       For the reasons discussed below, the Court GRANTS-IN-PART and DENIES-IN-
PART plaintiff’s motion to supplement, or strike portions of, the administrative record.

       As an initial matter, the Court GRANTS plaintiff’s request to add additional
correspondence between plaintiff and the Navy Office of the Judge Advocate General to the
administrative record. Pl. Mot. at 2. The government acknowledges that the administrative
record in this matter should be corrected to include the email correspondence between plaintiff
and the Navy Office of the Judge Advocate General. Def. Resp. at 8. And so, these emails
should be included in the administrative record before the Court.

       The Court also GRANTS-IN-PART plaintiff’s request to include certain court filings in
the West v. Crawford litigation in the administrative record. Id. at 2. The government agrees
that the administrative record should be corrected to include certain additional filings in West v.
Crawford that the Navy Office of the Judge Advocate General, Criminal Law Division possessed
during plaintiff’s Article 69(a) appeal. Id. at 9-10. And so, the Court DIRECTS the government
to correct the administrative record to add these documents.

       The Court must, however, DENY plaintiff’s request to strike portions of the record of
trial contained in the administrative record. Plaintiff argues in his motion that portions of the
record of trial found at AR 1493-1569 and 1986-2009 should be removed from the
administrative record, because these documents were added to the record of trial after the Navy
Office of the Judge Advocate General denied his Article 69(a) appeal. Pl. Mot. at 1. In its
response to plaintiff’s motion, the government acknowledges that the electronic version of the

                                                                                                      6
record of trial that was provided to the Convening Authority contains missing or out-of-order
pages. Def. Resp. at 2. But, the government also correctly argues that the administrative record
that the Court should consider in this case is the administrative record that was actually before
the decision maker for plaintiff’s Article 69(a) appeal—the Navy Assistant Judge Advocate
General for Military Justice (“AJAGMJ”). Id.; AR Tab 156 at 4383; see also Waits Decl. at ¶
11.

       In this regard, the government represents that the Navy Office of the Judge Advocate
General, Criminal Law Division prepared the record for the AJAGMJ to review during plaintiff’s
Article 69(a) appeal, and that the administrative record filed with the Court is the record that the
AJAGMJ used to review plaintiff’s request for relief.3 Def. Resp. at 3; see also Waits Decl. at ¶¶
1, 4. Given these representations, the Court agrees with the government that there is no basis for
striking, or supplementing, the record of trial contained in the administrative record.

       The Court must also DENY plaintiff’s motion to strike the Staff Judge Advocate
Addendum, dated March 3, 2015, from the administrative record. Pl. Mot. at 2. Plaintiff
unpersuasively argues that there should be no presumption of regularity regarding the existence
of this document and that the addendum is not authentic. Id.; Pl. Mem. at 7-8; Pl. Reply at 8-9.
The government explains in its response that this addendum was prepared by the Navy Office of
the Judge Advocate General during the review of plaintiff’s clemency petition and the Navy did
not provide the addendum to plaintiff at that time in accordance with the rules of courts-martial.
Def. Resp. at 7-8; see RCM 1106(f)(7). Because a review of the addendum supports the
government’s representations regarding the genesis and purpose of this document, the Court
DENIES plaintiff’s request to strike the addendum from the administrative record. See AR Tab
3 at 10-11.

       As a final matter, the Court also DENIES plaintiff’s motion to strike, or supplement,
certain text messages contained in an enclosure to plaintiff’s RCM 1105 submission found at AR
24-163. Pl. Mot. at 2; see also Pl. Mem. at 8. A review of the administrative record reveals that


3
 The government states in its response that the Navy Office of the Judge Advocate General, Criminal
Law Division received both a scanned electronic and paper copy of the record of trial and that the
Criminal Law Division relied only upon the paper copy of the record of trial, which did not contain
missing or out of order pages. Def. Resp. at 3.


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a legible version of these text messages is available elsewhere in the administrative record. See
AR Tab 85 at 1848-1987; AR Tab 103 at 2406-2546. And so, there is no basis for striking or
supplementing these messages.

V.     CONCLUSION

       In sum, the parties to this action agree that the administrative record in this matter should
be corrected to add additional email correspondence between plaintiff and the Navy Office of the
Judge Advocate General and certain court filings in West v. Crawford that were in the possession
of the Navy Office of the Judge Advocate General, Criminal Law Division during plaintiff’s
Article 69(a) appeal. Plaintiff has not, however, met his burden to show that the remainder of his
requests to supplement, or strike portions of, the administrative record are warranted to ensure
meaningful judicial review of this dispute. And so, for the foregoing reasons, the Court
GRANTS-IN-PART and DENIES-IN-PART plaintiff’s motion to supplement the
administrative record and to strike portions of the administrative record.

       It is further ORDERED that, on or before May 17, 2019, the government shall correct or
amend the administrative record to add:

       (1) The email correspondence between plaintiff and the Navy Office of the Judge
           Advocate General; and
       (2) The filings in West v. Crawford that the Navy Office of the Judge Advocate General,
           Criminal Law Division possessed during plaintiff’s Article 69(a) appeal.

       IT IS SO ORDERED.



                                                  s/ Lydia Kay Griggsby
                                                  LYDIA KAY GRIGGSBY
                                                  Judge




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