HAROLD H. GREENE, District Judge.
This case raises important issues concerning the status of the United States Court of Military Appeals and the extent to which it may be controlled by others in the Department of Defense.
Plaintiff R. Ward Mundy, formerly the highest nonjudicial officer of the Court of Military Appeals (CMA), alleges that officials of the Department of Defense (DOD) blocked a promotion the court had granted him, thereby illegally interfering directly with the court's internal personnel matters and indirectly with its statutory independence from military control. He also contends that the DOD officials violated his First Amendment rights in that their failure to promote him was motivated by a desire to punish court employees who opposed DOD policies.
Congress established the Court of Military Appeals in 1950 when it enacted the Uniform Code of Military Justice. Pub.L. No. 506, 81st Cong., 2d Sess., 64 Stat. 108 (1950), codified at 10 U.S.C. § 801-940. Created under Congress's Article I powers,
The first encounter between the court and DOD involving plaintiff Mundy occurred upon Mundy's elevation, in September,
After Mundy had served as a GS-15 for nearly a year, Chief Judge Fletcher again attempted to promote him. On February 14, 1978, he forwarded to David Cooke, Deputy Assistant Secretary of Defense (Administration), a "personnel action" form and cover letter regarding Mundy's promotion to a GS-17 "as soon as administratively possible."
At this point the Civil Service Reform Act of 1978
This was not the end of the matter, however, for notwithstanding the decisions of both OPM and the chief judge of the CMA, the offer and acceptance were not recognized by the Department of Defense.
On August 18, 1980, Mundy filed this lawsuit; later, on May 30, 1981, he resigned.
The various defendants raise a number of technical, threshold issues which will be discussed before turning to the merits of the complaint.
1. Venue. Four of the five individual defendants have moved for dismissal on the ground that as to them venue in the District of Columbia is improper, because they neither lived nor worked within the District at the times relevant to this lawsuit.
The Court finds that the geographic placement of the Pentagon across the Potomac River
Plaintiff's former place of employment, the Court of Military Appeals, is located in the District of Columbia. This is especially significant considering that his grievance stems directly from his employment and from the decisions of others about that employment. The defendants' involvement in this suit may well have consisted primarily of decision-making in their Pentagon offices,
2. Standing. The official defendants and the United States challenge plaintiff's standing to pursue that part of his claim that alleges a violation of the statute creating the Military Court of Appeals, 10 U.S.C. § 867(a)(1). However, it is clear that plaintiff has satisfied the three standing requirements operative in this Circuit.
Plaintiff alleges that he was deprived of his rightful salary because of the actions of the defendants. This economic injury would be redressed were the Court to order payment to him of the withheld funds. Thus, plaintiff has alleged an "injury in fact," the first of the three requirements. The second prong of the standing inquiry requires a look at the purpose of the statute that created the Military Court of Appeals to determine whether the defendants' alleged action "injured an interest arguably
Mundy claims that the actions of DOD officials infringed upon the independence of the Court of Military Appeals by interfering with its personnel decisions. The establishment of an independent military tribunal was Congress's principal objective in enacting 10 U.S.C. § 867. See Part III infra. The independence of a court depends to a large extent on the independence of its personnel from power centers outside the court. For these reasons, it is appropriate to conclude that Congress, in undertaking to provide for an independent court, necessarily intended to protect the independence of a high-level court employee such as Mundy.
3. Joinder. Defendants next claim that the Court of Military Appeals is an indispensible party to this action because, in deciding this case, the Court will have to ascertain the proper relationship between the Court of Military Appeals, the Defense Department, and the Office of Personnel Management. Defendants have entirely failed to show that the CMA is "`needed for just adjudication,'" Park v. Didden, 695 F.2d 626 at 629 (D.C.Cir.1982), slip op. at 6, such that dismissal would be warranted under Fed.R.Civ.P. 19. Adequate relief can be accorded in the court's absence, and any judgment for or against plaintiff will not impair the court's interests to such an extent that it should be regarded as an indispensible party under Rule 19(b).
4. Exhaustion of Administrative Remedies. Defendants contend that plaintiff has failed to exhaust his administrative remedies under the Civil Service Reform Act of 1978, the Classification Act, the Federal Tort Claims Act, and the Federal Employee Compensation Act, and that he therefore may not press his claim in this Court. Plaintiff's claim is not brought under any of these statutes and therefore whatever exhaustion requirements they may contain are not applicable. He seeks back pay on the theory that he was promoted to a GS-17 level but denied the emoluments of that office through defendants' illegal actions; he also seeks damages under a Bivens theory and pursuant to 42 U.S.C. § 1985(3). These remedies carry no exhaustion requirement.
5. Res Judicata. Relying upon Miele v. Brown, No. 77-1346 (D.D.C. August 29, 1977) defendants argue that the action is barred by res judicata and collateral estoppel.
This position, too, is not well-taken. Sovereign immunity does not bar a suit where one "had been denied the benefit of the position to which he was appointed." United States v. Testan, 424 U.S. 392, 402, 96 S.Ct. 948, 955, 47 L.Ed.2d 114 (1975). Here, plaintiff asserts that the acts of OPM and the CMA were sufficient to accomplish his "appointment" to the new position. If that is the case, DOD's improper withholding of formal approval merely denied Mundy the "benefit" of this position. Indeed, Congress appropriated the funds that Mundy seeks. The budget covering the Court of Military Appeals specifically included funds for a Court Executive at grade GS-17 for the fiscal years 1978-81. See note 5 supra. The appropriation may be regarded as signifying the government's consent to the expenditure of the funds for which Mundy brought suit.
In short, like the French police inspector in the motion picture "Casablanca"—who inevitably and unsuccessfully ordered a round-up of the "usual suspects" following an assassination—the government here has, once again, inevitably failed in its reliance on its usual technical defenses.
The core of plaintiff's claim is that by overruling or ignoring the personnel decision of the chief judge acting for the court, the DOD violated the letter and the spirit of the congressional mandate that the Court of Military Appeals be an independent, judicial tribunal which is a part of DOD "for administrative purposes only." 10 U.S.C. § 867(a)(1).
The legislative history of the Uniform Code of Military Justice reveals that Congress had two basic aims in establishing the Court of Military Appeals. First, it wanted to ensure uniform application of the new code. See 96 Cong.Rec. 1362 (1950) (remarks of Sen. Kefauver). Second, and more important in terms of this lawsuit, Congress intended to reduce the level of command control over the military justice system. The Congress believed that public confidence in the fairness of military justice would be promoted by the establishment as the highest tribunal in the military justice system a court composed of civilians who would not be controlled by the Secretary of Defense or by any of the branches of the military service.
Against this background of conflict between the military command and the court, the government defends the Defense Department's actions in the instant case by relying essentially only on the provision that places the CMA in that Department for certain purposes. DOD officials contend that they treated the court's personnel request no differently from the manner in which they treat those respecting non-court DOD employees.
In the view of this Court, the defendants wholly fail to appreciate the difference between a court and yet another military unit; and they have also interpreted "administrative purposes only" (emphasis added) as conferring too much authority on the Department of Defense to use its discretion to contravene the policy decisions of the Court of Military Appeals, and particularly its decisions with respect to the appointment and compensation of its key officials. For the fact is that DOD's interpretation and its conduct in this case are simply inconsistent with Congress's wish that the court be independent.
The legislative history of subsequent amendments to 10 U.S.C. § 867 indicates that Congress passed these amendments to counter claims that the court was "an instrumentality of the executive branch or an administrative agency within the Department of Defense." S.Rep. No. 806, 90 Cong., 1st Sess. 2 (1967). Indeed, the Senate Committee observed that the Court's placement in DOD was intended "only to reduce expenditures for the administration of the relatively small staff of the Court ... [and] meant merely to authorize the Department of Defense to furnish such things as telephone services, transportation facilities, and to purchase "supplies." Id. As for other matters, "[t]he court justifies its own budget and funds are appropriated for its operations with no control exercised by the Department of Defense." Id.
In view of these authorities it cannot be seriously disputed that Congress intended the Court of Military Appeals to operate autonomously.
Alternatively, it is also clear that all necessary steps had been taken for Mundy's inclusion within the SES save a ministerial act. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 156, 2 L.Ed. 60 (1803). OPM allotted two spots for the Court, dispensed two sets of forms, and the Court presented Mundy with an offer to join, which he accepted. Congress had approved the relevant line item of a Court Executive at GS-17. All that stood in the way of the promotion's becoming an endorsement by the Secretary of Defense,
In a sense, it is not merely a civilian-military conflict that underscores the present controversy, but also one of separation of powers between the legislative and executive branches. The Court of Military Appeals is a creation of Congress while the Defense Department is a direct arm of the Executive. In the instant case, executive officials have affected in the most direct way the salary and tenure of the court's highest nonjudicial employee. One would have to be naive not to conclude that, if advancement and tenure of the highest CMA employees depended essentially on DOD outsiders, rather than on the judges of the court they serve, there are bound to be, at a minimum, conflicting loyalties: the Court Executive, the Clerk of the Court, and similar officers are likely to look over their shoulders at the DOD officials when confronted with issues—arising by way of decision or advice to the judges—which might anger these outside officials. As the Supreme Court observed, "it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will." Humphrey's Executor v. United States, 295 U.S. 602, 629, 55 S.Ct. 869, 874, 79 L.Ed. 1611 (1934).
It is of course for reasons such as these that federal judges are given lifetime
What the Court holds today should be no more surprising than the observation that it is human nature not to bite the hand that feeds. Congress wanted a military court of last resort composed of civilians who could administer the military code evenhandedly, free from command influence. Objectivity cannot last long, however, when the very people being judged by the court are in turn judging the court and its personnel. Our notions of separation of power simply will not tolerate such encroachment by officials over a tribunal that Congress intended to be independent, and they certainly do not countenance it when the department involved has a history of command interference with quasi-judicial bodies.
See note 1, supra.
The plaintiffs in NTEU were denied relief because they were not yet federal "employees" within the meaning of 5 U.S.C. § 2105(a), and therefore were not entitled to the statutory protections available to federal employees. Mundy, who was a federal employee, did not face this barrier.
Mundy's claim under 42 U.S.C. § 1985(3) may be addressed even more summarily. Assuming arguendo that the actions of the DOD officials rose to the level of a conspiracy, Mundy has failed to allege that there was "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Brechenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). The class Mundy proposes is a purported "class of individuals who are critical of DOD policies." Even if Mundy could show that such a class existed and that he was one of its members, this is not the sort of class protected by § 1985. As the Court of Appeals for the Ninth Circuit has stated, "the class status providing the motivating animus must be created by a fact other than possession of the right deprived." Lopez v. Arrowhead, 523 F.2d 924, 928 (9th Cir.1975). See also Scott v. Moore, 680 F.2d 979 (5th Cir.1982) ("Members of the plaintiff class must share some common characteristic beyond simply being victims of the defendant's conspiratorial conduct.")