Original jurisdiction over this action resided in the United States Court of Federal Claims for back military pay and reinstatement on a claim of unlawful discharge, as provided for in the Tucker Act, 28 U.S.C. Section 1491. Holley v. United States, 124 F. 3d 1462, 1465 (Fed. Cir. 1997).
In his Complaint containing nine separate and independent claims for damages (the ninth stated in the alternative), David Alan Carmichael (hereinafter "Carmichael"), a former naval chief petty officer, charged that he had been unlawfully discharged and/or involuntarily separated from the United States Navy (a) by actions and rules that discriminated against him on account of his religion in violation of the First Amendment of the United States Constitution, (b) by acts that failed to provide him due process of law in violation of the Fifth Amendment of the United States Constitution, and ( c) by arbitrary, capricious and discriminatory actions in violation of numerous statutes (37 U.S.C. Sections 204, 402, 403, 418, and 906; 10 U.S.C. Sections 1074, 1076, 1141-45, 1168, 1169, 1174 and 1176 and 10 U.S.C. Sections 1143, 1144, 1145, 1169 and 1174), federal regulations (32 C.F.R. Sections 41.6, 51.3, 51.4, and 51.5 and 32 C.F.R. Section 41.6), defense directives (Department of Defense (DOD) Number 1300.17 and DoD 1332.36), Navy regulations (Articles 1023, 1150, 1151, 1156, 1164 and 1973), and Secretary of the Navy instructions (No. 1730.8 and 1900.7G), and in breach of Carmichael’s contract. (17a-36a)
On October 31, 2000, the United States Court of Federal Claims (Claims Court) entered a final order, granting the Government’s Motion to Dismiss, on the grounds that Carmichael had voluntarily separated himself from the Navy and, therefore, that the court had no subject matter jurisdiction. (10a-11a)
On December 1, 2000, Carmichael filed a timely Notice of Appeal. (16a) This Court has jurisdiction to hear this appeal under 28 U.S.C. Section 1295(a)(3).
II. STATEMENT OF THE ISSUES ON APPEAL
A. Whether the Claims Court erred in granting the Government’s Rule 12(b)(1) Motion to Dismiss Carmichael’s first eight Causes of Action contained in his Complaint on the grounds that Carmichael voluntarily separated himself from the United States Navy (Navy).
1. Did the Claims Court misapply the law governing the issue of involuntariness as to the first eight causes of action?
2. Did the Claims Court err in its finding that Carmichael had not sought a religious accommodation when he requested a change in his Military Personnel Identification Number (MPIN)?
3. Did the Claims Court err in its conclusion that Carmichael’s request to change his MPIN was not wrongfully denied?
B. Whether the Claims Court erroneously dismissed Carmichael’s Alternative Ninth Alternative Cause of Action on the grounds that Carmichael had voluntarily separated himself from the Navy.
This is a case brought against the United States under the Tucker Act to recover lost wages and benefits resulting from a wrongful discharge and involuntary separation of David Carmichael, a chief petty officer with an exemplary naval service record of sixteen years, eight months and seven days. (331a-545a) At the heart of Carmichael’s Complaint are eight separate and independent claims that the Navy wrongfully discharged and involuntarily separated Carmichael from the service by arbitrarily and capriciously denying Carmichael’s religious accommodation request to change his MPIN because Carmichael’s religious convictions did not permit him to be identified by a Social Security Number (SSN) as his MPIN. (26a-35a)
In his Complaint, Carmichael alleged that the Navy, by failing to submit his religious accommodation request to his commanding officer for review and decision, had denied his request in violation of Navy Regulations (First Cause of Action), and in violation of Department of Defense Directive (DODDIR) 1300.17 and Navy Secretary Instruction (NAVSECINST) 1730.8 (Second and Third Causes of Action). (26a-28a) Carmichael further alleged that the Navy, primarily by the actions of Carmichael’s chief staff officer, had discriminated against him on the basis of his religious beliefs and convictions in violation of federal equal opportunity regulations (Fourth Cause of Action) and in violation of the First Amendment (Fifth and Sixth Causes of Action. (29a-31a)
Additionally, Carmichael claimed that the Navy, by its ultimatum requiring Carmichael to sign his re-enlistment contract as is, or be separated from the service, had processed Carmichael’s discharge and separation in violation of the procedural requirements set forth in federal regulations and the Naval Military Personnel Manual (NAVPERSMAN) (Seventh Cause of Action) and the Due Process Clause of the Fifth Amendment (Eighth Cause of Action). (31a-32a)
Finally, in an Alternative Ninth Cause of Action, Carmichael claimed that, even if not wrongfully discharged, the Navy, by coercive, dilatory and misleading conduct, involuntarily separated and denied him severance pay and other benefits provided for by federal statute and regulation (Ninth Cause of Action). (33a-34a)
In response, the Government filed a Motion to Dismiss under Rule 12(b)(1) of the Rules of the United States Court of Federal Claims and, in the alternative, a Motion for Judgment on the Administrative Record pursuant to Rule 56.1. (14a (Dock. #11);49a) Carmichael filed Responses to both Motions, as well as a Cross-Motion for Judgment on the Administrative Record on his Third Cause of Action. (14a (Dock. # 12); 15a (Dock. # 18))
After an exchange of memoranda, including Statements of Facts, Counter-Statements of Facts, and Statements of Additional Facts (14a (Dock. # 9); 15a (Dock. #’s 19, 22,23)) and oral argument (16a), but without any evidentiary hearing (13a-16a), the Claims Court granted the Government’s Motion to Dismiss on the sole ground that Carmichael "has failed to rebut the presumption of voluntariness, his separation was indeed voluntary and this court lacks jurisdiction to hear plaintiff’s claim." (10a-11a) Accordingly, the Claims Court ordered Carmichael’s Complaint dismissed. (12a) From this final judgment, Carmichael has taken this appeal.
A. Carmichael’s Record of Exemplary Service.
On June 27, 1980, David Alan Carmichael enlisted in the United States Navy, and, on July 11 of that year, he entered upon active duty. (332a-340a) After just seven years and two months’ service, the Navy promoted Carmichael to the rank of Chief Petty Officer. (416a, 417a) Both before and after this promotion, Carmichael excelled as a Navy enlisted man, graduating from numerous courses as class honorman (top of class), and earning four Good Conduct medals. (398a-438a; 458a-459a)
During his sixteen years, eight months and seven days of service, of which nine years, six months and twenty-one days were at sea, Carmichael served nearly two years on board the USS THOMAS C. HART during operations Desert Shield and Desert Storm, earning two Navy Achievement Medals for meritorious service and the highest possible scores from his commanding officer. (427a-432a; 453a-454a) Thereafter, from October 1, 1994 through November 4, 1996, the Navy deployed Carmichael as an anti-submarine sonar specialist on several special missions, on which he again earned the highest commendations of his commanding officers, his third Navy Commendation Medal and his third Sea Service Deployment Ribbon. (455a; 458-459a )
B. Carmichael’s Request for Religious Accommodation
On or about October 1, 1995, at about the mid-point of these overseas deployments, Carmichael, a devout Christian, earnestly sought through prayer and Bible study to understand the teachings in the Book of the Revelation of the Holy Bible about the "Number of the Beast" (Chapter 13) and about God’s command that Christian believers cannot be identified by that number (Chapter 14). (20a (Para. 18);231a-232a; 286a) One year later, toward the end of the last of these overseas deployments, Carmichael came to the religious conviction that the Social Security Number (SSN) was the forbidden "Number of the Beast," and that, as a believing Christian, he could no longer be identified by that number as his MPIN. (20a (Para. 18);286a-287a)
On October 1, 1996, Carmichael wrote to the Commissioner of Social Security (SS Commissioner) , notifying her of his religious convictions and requesting that she rescind the SSN, assigned to him since childhood. (21a (Para. 19); 275a-280a) On or about November 1, 1996, Carmichael advised his Chief Staff Officer, Jack Roesner (CSO Roesner), that he, Carmichael, had come to the religious conviction that he could no longer be identified with a SSN as his MPIN, and that he had written to the SS Commissioner asking her to rescind the SSN assigned to him. In response, CSO Roesner rebuked and threatened Carmichael, calling him a troublemaker. (21a (Para. 21); 232-233a)
On or about November 6, 1996, Carmichael submitted through CSO Roesner a request addressed to Carmichael’s Commanding Officer (CO), seeking a new MPIN from the Chief of Naval Personnel (CNP). (21a-22a (Para. 22); 283a-291a) Although Carmichael did not formally label his request a "religious accommodation request," he stated in the memorandum to the CNP that "my religious convictions prohibit me from applying" for a SSN (284a), and attached as an enclosure a copy of the October 1, 1996, letter to the SS Commissioner detailing how he had come to the religious conviction that he could no longer be identified by a SSN as his MPIN:
God’s Word commands that no person receive a number used by a government system where a person may neither buy nor sell without the number. The description of the number does not confine the government number system (of populace control) to just obstructing buying and selling. So about a year ago, I began to pray for wisdom and discernment from the Living God about the issue and began to take steps to find out if the Social Security Number correlated to the characteristics of the number discussed in Revelation, Chapter 13.... [concluding after extensive inquiry that because] I could not get out of it [the social security system]...the threats that would come from not taking on the number [were like those in the Book of Revelation]....
(286a-287a)
C. The Navy’s Delayed and Discriminatory Response.
CSO Roesner refused to forward Carmichael’s request to the CO, returning Carmichael’s November 6, 1996, submission with the following notation:
1. My research of NMPM and BUPERS liasion (sic) does not support your request and I cannot forward your request.
2. The NMPM and BUPERS support Navy-wide use of only the SSN as a SVCMBR MPIN.
Please see me to discuss further.
(22a (Para. 23); 548a; 558a-559a)
In response, Carmichael discussed his request further with CSO Roesner, asserting that Navy regulations required CSO Roesner to forward his request up the chain of command. (22a (Para. 24); 234a; 548a) CSO Roesner, then, threatened to cancel Carmichael’s Permanent Change of Station orders and rebuked Carmichael:
I (Roesner) have checked with theologians and they agree with me. You (Carmichael) cannot take the Bible literally. (22a (Para. 24); 234a; 548a)
On or about November 22, 1995, CSO Roesner reiterated his refusal to forward Carmichael’s request: "You’ll have to send the letter (to the CNP) yourself." (22a (Para. 25); 234a; 548a) On or about November 25, 1995, CSO Roesner again ordered Carmichael not to discuss his request with his CO, directing him to wait until after Carmichael was transferred to new command. (22a (Para. 26); 548a)
On December 2, 1996, having been denied access to his CO by CSO Roesner’s obstructive actions, Carmichael finally sent his November 6, 1996, religious accommodation request directly to the CNP. (23a (Para. 27); 235a) Afterward, by order of CSO Roesner, Carmichael was transferred to a new command. On January 6, 1997, he resubmitted his November 6, 1996, religious accommodation request to his new Officer-In-Charge (OIC) for submission to the CNP through his new commanding officer. (292a-294a) The OIC denied this request, instructing Carmichael to find out what happened to his first request. (237a; 262a) Carmichael did so, only to be admonished by the office of the CNP to communicate with the CNP solely via Carmichael’s CO. (111a; 238a; 262a)
On or about February 11, 1997, Acting Deputy CNP, Rear Admiral L. R. Marsh (DCNP Marsh), denied Carmichael’s request. In explanation DCNP Marsh stated that, because the SSN was required as the MPIN of all Navy personnel, he could not change Carmichael’s MPIN to "000-00-0000," as requested, although he would reconsider Carmichael’s request "[w]hen and if the Social Security Administration takes such action." (24a (Para. 34); 212a) Although DCNP Marsh did not mention that Carmichael had made the request for a religious reason, he was fully apprised that Carmichael’s "request is based on the claim that he never applied for a SSN and his religious beliefs that ‘...no person receive a number used by a government system where a person may neither buy nor sell without the number.’" (213a)
D. Carmichael’s Record of Continued Faithful Service.
On or about February 13, 1997, prior to Carmichael’s having received notice of DCNP Marsh’s decision, Carmichael was ordered to report for duty aboard the USS HAYLER to provide support during a major multi-national coordinated undersea warfare exercise (called DOGFISH). (24a (Para. 35); 240a)
On or about March 3, 1997, upon Carmichael’s return from the DOGFISH deployment, Carmichael learned for the first time that DCNP Marsh had denied his religious accommodation request. (24a (Para. 36); 241a) Two days later, Carmichael submitted his request to extend his current enlistment to January 1999, in accordance with a previous contractual obligation. (25a (Para. 38); 242a; 297a; 549a) On the following day, Carmichael’s OIC approved this request, even though Carmichael had placed the word NONE in the space for his SSN. (25a (Paras. 38 and 39); 242a; 297a; 549a)
E. The Navy’s Ultimatum.
Six days later, on March 12, 1997, an officer outside Carmichael’s chain of command presented to Carmichael a reenlistment contract identifying him by a SSN as his MPIN, and instructed Carmichael to sign the contract as is, or it would be null and void. (25a (Para. 40); 244a-245a) On March 13, 1997, Carmichael advised the the officer that he could not sign "without violating God’s sovereign law and my convictions" so long as it contained the SSN as his MPIN (25a (Para. 41); 248a), and before witnesses and qualified officers, Carmichael swore a verbal oath to fulfill his obligated service requirement. (25a (Para. 42); 248a-249a)
On March 17, 1997, notwithstanding Carmichael’s efforts to fulfill his contractual obligation to remain in the Navy, the Navy honorably discharged Carmichael and involuntarily separated him from the service. (25a (Para. 43); 192a-193a; 252a-253a; 374a-376a; 549a)
F. Carmichael’s Request for Administrative Review.
On May 6, 1998, pursuant to 10 U.S.C. Section 1552, Carmichael filed with the Board of Corrections of Naval Records (BCNR) an Application for Correction of his Naval Record. (26a (Para. 45); 214a) In his application, Carmichael claimed that he had been "Unlawfully discharged" and that his separation from the service had been "wrongfully listed as volunt[ary]." Carmichael explained:
I do not have a Social Security Number due to exemption confirmed Oct. 30, 1996 due to the requirements of my faith. I was not discharged of my volition and the record is a result of willful fraud by conspiracy among other unlawful actions.
(214a)
In support, Carmichael attached documents explaining the nature of his request, including the October 1, 1995 letter to the SS Commissioner and a 68-paragraph affidavit attesting to his religious convictions and to the CSO’s discriminatory and dilatory actions against him. (215a-259a)
Based upon these supporting documents, Carmichael requested that the BCNR "Assign a Navy service number, re-instatement, promotion, back pay and allowances, accommodation of religious practices and etceteras in accordance with enclosures." (214a) G. The BCNR’s Decision.
On August 21, 1998, in response to Carmichael’s application, the BCNR submitted a Memorandum to the Navy Judge Advocate General (NJAG), requesting "comments and recommendation in the case of ex-STGC... Carmichael." (146a) In particular, the BCNR asked the NJAG whether Carmichael’s "refusal to provide his social security account number [should] have been accommodated in accordance with the general policy set forth in Paragraph 4" of SECNAVINST 1730.8 (146a), the Navy’s policy governing the "accommodat[ion of]the doctrinal...observances of the religious faith practiced by individual members...." Additionally, the BCNR requested the NJAG to address whether Carmichael’s request for "accommodation [was] constitutionally required by the free exercise clause of the First Amendment." (146a)
On March 31, 1999, the NJAG replied. To the question whether Carmichael’s request "should have been accommodated in accordance with general Navy policy regarding the accommodation of religious practices," the NJAG responded:
No. Petitioner’s religious accommodation request to change his...MPIN to a number different from his SSN was appropriately considered and denied by the... DCNP. DCNP’s decision was based on military necessity and was not arbitrary or capricious.
(147a)
In the body of his report, the NJAG observed that "[t]his case involves a conflict between Government regulations that require using service members’ SSNs and Petitioner’s refusal to permit the use of his SSN based on his religious convictions." (150a) To resolve this conflict, the NJAG applied the five factor formula set forth in SECNAVINST 1730.8(9), concluding that "the [DCNP’s] decision to disapprove Petitioner’s request for accommodation was mandated by law and military necessity." (151a-153a)
As to the "free exercise of religion" question, the NJAG wrote: "The Constitution does not require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of individuals." (147a) This ruling, like the one concerning NAVSECINST 1730.8, was backed up by a detailed analysis, concluding that the interests of the military outweighed Carmichael’s religious convictions. (153a-156a)
On May 24, 1999, the BCNR denied Carmichael’s request for correction of naval records. (68a-74a) In its letter of explanation, the BCNR acknowledged that Carmichael’s request for a change of his MPIN was based upon his religious convictions. (73a) After rehearsing the events that occurred from November 6, 1996, the date of Carmichael’s initial request for accommodation, to March 16, 1997 when he was discharged, the BCNR Director informed Carmichael that "the Board substantially concurred with the comments contained in the advisory opinion (of NJAG)...that your right to free exercise of your religious beliefs was not violated" and that "accommodation [pursuant to SECNAVINST 1730.8] was not possible...." (73a).
H. Carmichael’s Complaint.
On November 29, 1999, Carmichael filed a Complaint in the Claims Court, alleging nine independent and separate causes of action. (17a-36a) In his First Cause of Action, Carmichael alleged that the Navy by the actions of CSO Roesner had violated three specified Articles of Navy Regulations, emphasizing that Carmichael had been denied "the right...to communicate with...[his] commanding officer in a proper manner, and at a proper time and place," as provided for in Article 1151, and that Carmichael had been denied the right to have his request for religious accommodation "promptly" and "without delay" as prescribed by Article 1156. (26a-27a)
In his Second and Third Causes of Action, Carmichael complained that his request for religious accommodation had never been placed before his commanding officer for review, despite the fact that DOD Directive 1300.17.3.1 states that "the Department of Defense places a high value on the rights of members to observe the tenets of their respective religions" and "that requests for accommodation of religious practices should be approved by commanders when accommodation will not have an adverse impact on military readiness, unit cohesion, standards or discipline"(emphasis added). Additionally, Carmichael alleged that the failure to submit his request to his commanding officer violated SECNAVINST 1730.8, which prescribes that religious accommodations "depend upon military necessity" and that "[d]etermination of necessity rests entirely with the commanding officer" (emphasis added). (27a-28a)
In his Fourth and Fifth Causes of Action, Carmichael alleged that the Navy by the actions and statements of CSO Roesner had discriminated against him on the basis of his religious beliefs and convictions, contrary to federal regulations against such discrimination prescribed in the DOD’s Equal Opportunity Program (e.g., 32 C.F.R. 51.4.c.), contrary to Article 1164 of the Navy Regulations, and contrary to the Free Exercise principle prohibiting government hostility against religion. (29a-30a)
In his Sixth Cause of Action, Carmichael asserted that the DOD and Navy standards governing religious accommodation, on their face and as administered, discriminate in favor of some religious beliefs and doctrines and against his religious conviction that he cannot be identified by a SSN, because it is the mark of the beast, as described in Revelation. (30a-31a)
In his Seventh and Eighth Causes of Action, Carmichael claimed that the Navy had not processed his request for religious accommodation according to Navy procedures governing administrative separations, and that, in any event, the Due Process Clause required that the Navy afford him a pre-termination hearing on his claim for religious accommodation, not the post-termination hearing that the BCNR provided. (31a-32a)
Finally, in his alternative Ninth Cause of Action, Carmichael asserted that, even if he had not been wrongfully discharged, the Navy had involuntarily separated him from the service prior to the end of his obligated term of service, and hence, that he was entitled to severance pay and other benefits, as provided by statute. (33a-34a)
I. The Government’s Response.
The Government responded to Carmichael’s Complaint with a Rule 12(b)(1) Motion to Dismiss, claiming that Carmichael had voluntarily separated himself from the Navy. In the alternative, the Government moved for Judgment on the Administrative Record (Rule 56.1) on the grounds that Carmichael had not been wrongfully discharged. (49a-65a)
Initially, it appeared that the Government’s two motions were interdependent, resting upon the factual concession that Carmichael had requested a religious accommodation (43a; 51a), but upon the legal claim that the CNP had rightfully denied that request, as found by the NJAG and BCNR. (54a-64a)
After Carmichael filed his response to the Government’s motion for judgment on the administrative record, and his cross-motion for judgment on the administrative record on his Third Cause of Action, the Government changed both its factual and legal positions. Instead of conceding that Carmichael had, in fact, requested a religious accommodation, the Government denied it, contending that Carmichael had simply requested a change in his MPIN. (579a) Rather than resting upon the legal claim that the CNP had rightfully denied a religious accommodation request under SECNAVINST 1730.8, the Government now contended that Carmichael’s request for a change of his MPIN was governed by Navy Personnel Manual (NAVPERSMAN) 4610100, not by SECNAVINST 1730.8. (568a-573a)
J. The Trial Court’s Decision.
Without mentioning the Government’s change of factual and legal position, the Claims Court simply noted that the "parties are in disagreement as to the purpose of...[Carmichael’s] request":
Plaintiff argues that it was for religious accommodation while defendant contends it was merely a general request to change his MPIN. Although plaintiff mentions his religious beliefs in this request, he never states that it is a "religious accommodation request" or that he seeks religious accommodation.
(2a)
Instead of resolving this fact dispute by a careful examination of Carmichael’s affidavits and the administrative record, or by conducting an evidentiary hearing, the trial court simply adopted the Government’s version, characterizing Carmichael’s "letter dated November 6, 1996" as a "a request to change his MPIN to his Chief Staff Officer," (3a), and analyzing the legality of the Navy’s denial of that request without regard for the procedural and substantive rules governing requests for religious accommodation, as provided in NAVSECINST 1730.8. (9a)
This was not the only jurisdictional fact resolved in favor of the Government. Although the Claims Court acknowledged that, on November 19, 1996, Carmichael’s CSO had returned Carmichael’s request for a change in his MPIN without forwarding it to the CO or CNP, on the grounds that "Navy procedures did not support his request" (3a-4a), it omitted entirely any reference to the evidence that the CSO Roesner had recognized the request as one for a religious accommodation, and that the CSO had denigrated and ridiculed Carmichael’s religious convictions. (2a-6a)
Instead of paying attention to the administrative record and affidavits attesting to such facts, the Claims Court dismissed them as irrelevant, ruling that Carmichael’s request for religious accommodation had nothing to do with the Navy’s decision not to change his MPIN:
...[A]s the CNP is the only person who can change plaintiff’s MPIN, whether or not plaintiff’s request is a religious accommodation request does not affect the outcome of this case. The CNP would make this decision no matter if plaintiff’s request was given to him directly from plaintiff or if it was forwarded to him from plaintiff’s CO. The alleged coercive acts by plaintiff’s CSO, therefore, did not prevent the Navy from properly handling plaintiff’s request. (9a-10a)
Having thus found no unlawful coercion, the trial court ordered Carmichael’s Complaint dismissed. (11a) From this October 31, 2000 final judgment, Carmichael has processed this timely appeal. (16a)
Under the rule of Roskos v. United States, 213 Ct. Cl. 34, 549 F. 2d 1396 (1977), and with respect to the first eight causes of action in his Complaint, Carmichael was involuntarily separated from the Navy. The Claims Court failed to apply the Roskos rule in this case, wrongfully presuming that Carmichael’s decision not to sign his re-enlistment contract was voluntary, and erroneously concluding that the Navy’s wrongful failure to handle Carmichael’s request for a change in his MPIN as a request for a religious accommodation had no impact on Carmichael’s decision not to sign a re-enlistment contract containing a SSN as his MPIN. The objective evidence in this case clearly demonstrates that Carmichael’s request was a request for religious accommodation, that the Navy wrongfully handled and denied that request, and that the Navy’s wrongful handling and denial produced Carmichael’s decision not to sign the re-enlistment contract. Therefore, with respect to his first eight causes of action alleging wrongful discharge, Carmichael did not voluntarily separate himself from the Navy, and the Claims Court clearly has jurisdiction to determine the merits of Carmichael’s claims for damages and reinstatement for wrongful discharge.
As for Carmichael’s alternative ninth cause of action, there is no evidence to support the finding of the Claims Court that Carmichael voluntarily separated himself from the Navy. To the contrary, the evidence demonstrates that Carmichael’s decision not to sign his re-enlistment contract containing a SSN as his MPIN was either coerced, or time pressured or produced by misleading information on which Carmichael detrimentally relied. VI. ARGUMENT
A. STANDARD OF REVIEW.
"Whether the Claims Court properly granted the government’s motion to dismiss" is reviewed by this Court de novo, reversing the court’s "legal conclusion ...if it is incorrect as a matter of law." Rocovich v. United States, 933 F. 2d 991, 993 (Fed. Cir. 1991). If the Claims Court’s legal conclusion is based upon a resolution of disputed facts, then ordinarily this Court reviews the court’s findings of fact only for "clear error." Hamlet v. United States, 873 F. 2d 1414, 1416 (1989).
The "clearly erroneous" standard does not apply, however, "where the attack on jurisdiction implicates the merits of the plaintiff’s federal cause of action...." Williamson v. Tucker, 632 F. 2d 579, 588, n.6 (5th Cir.1980), cert. den., 454 U.S. 897 (1981). Instead, whenever a case is dismissed "for lack of subject matter jurisdiction when the basis of jurisdiction is also an element in the plaintiff’s federal cause of action," this Court should determine whether the evidence in the record supporting plaintiff’s claim was found by the trial court to be so "insubstantial and frivolous" as to not support that claim. Id., 632 F. 2d at 590-91.
In this case, the "clearly erroneous" standard does not apply. The Claims Court’s decision to grant the government’s motion to dismiss was based upon its finding that Carmichael had either not requested a religious accommodation when he requested a change in his MPIN, or if he had, the handling and resolution of that request had nothing to do with the Navy’s denial of the change in his MPIN.
The court’s resolution of these disputed facts go to the heart of Carmichael’s substantive claim of wrongful discharge, as stated in his first eight causes of action. Moreover, the Navy’s handling of Carmichael’s request, including the specific actions of CSO Roesner, go to the heart of Carmichael’s substantive claim of involuntary separation which undergirds Carmichael’s alternative ninth cause of action.
Thus, this Court should either review the court’s resolution of these fact disputes to determine if the evidence supporting Carmichael’s claim of wrongful discharge was "insubstantial and frivolous," or, at the very least, examine the evidence in a light most favorable to Carmichael’s claim of wrongful discharge to determine if "no genuine issue of material fact exists," the standard applicable to a motion for summary judgment. Id., 632 F. 2d at 590-91.
Regardless of the standard of review, this Court should also review the record to determine whether the trial court erred by failing to afford the plaintiff "an opportunity to develop and argue the facts in a manner that is adequate in the context of the disputed issues and evidence." Id., 632 F. 2d at 589.
B. UNDER THE RULE OF ROSKOS V, UNITED STATES, CARMICHAEL WAS INVOLUNTARILY SEPARATED FROM THE NAVY.
1. The Rule of Roskos v. United States Applies Here.
In its opinion, the Claims Court asserted that Carmichael’s complaint "is based on allegations of unlawful discharge, not involuntary separation, and therefore the voluntariness of his decision is inapplicable." (7a) The Claims Court has clearly misread the Complaint.
In Paragraph 43 of the Complaint, Carmichael alleged:
On or about March 17, 1997, notwithstanding Carmichael’s continuing efforts to extend his enlistment to fulfill his contract obligated service, Carmichael was unlawfully discharged and involuntarily separated from the Navy against his will, unlawfully preventing him from fulfilling his contractual obligation of extended service until January 1999, and further, unlawfully preventing him from extending his enlistment to within two years of fleet reserve retirement.
(25a-26a)(Emphasis added.)
In Paragraph 45, Carmichael further alleged:
On or about May 6, 1998, Carmichael applied to the Board of Naval Corrections requesting review of said "unlawful discharge" and "involuntary separation."
(26a) (Emphasis added.)
Carmichael incorporated these two allegations in each of his first eight causes of action. (26a - 32a) Thus, with respect to these causes of action, the claims of wrongful discharge and of involuntary separation are intertwined and interdependent.
The Claims Court’s statement that Carmichael’s Complaint contained no allegation of involuntary separation is, therefore, "clearly erroneous." And that clearly erroneous factual statement led the court to serious legal error, presuming that "[i]f plaintiff’s separation was voluntary," then "it was not an unlawful discharge." (7a)
This statement puts the cart before the horse. According to Roskos v. United States, 213 Ct. Cl. 34, 549 F. 2d 1396 (1977), "[a]n action is not voluntary if it is produced by government conduct which is wrongful." (Emphasis added.) See also Int. Tel. & Tel. Co. v. United States, 206 Ct. Cl. 37, 52-53 (n. 11), 509 F.2d 541, 549-50 (1975); Urban Plumbing & Heating Co. v. United States, 187 Ct. Cl. 15, 29, 408 F.2d 382, 389 (1969), cert. Denied, 398 U.S. 958 (1970); Fruhauf Southwest Garmet Co. v. United States, supra, 126 Ct. Cl. 51, 62, 111 F. Supp. 945, 951 (1953). Thus, in a case in which a military service member or other government employee has claimed that wrongful discharge, a court must first determine if there is "objective evidence" that the alleged wrongful acts "produced" the service member’s or government employee’s act that led to the separation from military service or government employment. In other words, before determining the voluntariness or involuntariness of a separation from government service, a court must examine the evidence underlying the charge of wrongful discharge.
The Claims Court did not follow this rule. Although Carmichael called the court’s attention to Roskos in his Response to the Government’s motion to dismiss(587a-590a), the Claims Court did not, in its opinion even refer to Roskos, much less make any attempt to distinguish it. (1a-11a) Yet, since Roskos, courts have consistently recognized that, when a plaintiff makes a claim of unlawful discharge, the record must be reviewed to determine if there is any "objective evidence" showing that the government’s alleged wrongful conduct "produced" an act of resignation or retirement, before concluding that plaintiff’s separation was voluntary or involuntary. See Staats v. United States Postal Service, 99 F. 3d 1120, 1124 (1996)(voluntary); Arneson v. Heckler, 879 F. 2d 393,396 (8th Cir. 1989) (involuntary); United States v. Thompson, 749 F. 2d 189, 194-95 (5th Cir. 1984)(voluntary); Duffy v. United States, 1991 U.S. Dist. LEXIS 7381 (N.D. Ill. 1991)(involuntary); Kim v. United States, 47 Fed. Cl. 493, 499 (2000)(voluntary); Bergman v. United States, 28 Fed. Cl. 580, 586 (1993)(voluntary); Tannehill v. United States, 18 Cl. Ct. 296, 299-301 (1989)(voluntary); Clark v. United States, 229 Ct. Cl. 570, 573-74 (1981) (voluntary); Giles v. United States, 229 Ct. Cl. 615, 616-17 (1981)(voluntary); McLaughlin v. Florida, 526 So. 2d 934, 937-38 (Fla. App. 1988)(involuntary); Accord, Frazier v. United States, 672 F. 2d 150, 160 (D.C. Cir. 1982)(standing to sue affirmed on the basis of "objective evidence" that wrongful government conduct produced "unwilling resignation").
Had the Claims Court paid attention to Roskos, it could only have found that the "objective evidence" demonstrated that the Government’s wrongful acts "produced" Carmichael’s decision not to sign his re-enlistment contract, and that, therefore, Carmichael’s separation from the Navy was involuntary.
2. The Navy Presented Carmichael with no "Practical Alternative" Other than to Not Sign his Re-enlistment Contract.
The Claims Court candidly admitted that Carmichael had not resigned, retired or requested to be discharged. (JA 7, n. 14) Yet, in addressing the issue of voluntariness, the Claims Court cited only cases involving resignations, retirements, or requests for discharge. It did so, based solely upon its determination that Carmichael’s "conscious decision not to sign his re-enlistment contract" was analogous to the conscious decision to be separated from the Navy" made by a person who retires, resigns or requests a discharge. (7a, n. 14) Therefore, because Carmichael’s decision was "conscious... [that] not to sign would lead to his "dismissal," his decision not to sign is presumed to be voluntary. (7a-8a)
Just because a decision is made "conscious" that it would lead to separation from government service does not make that decision presumptively voluntary. Rather, in applying the law governing voluntariness or involuntariness of a separation, courts appraise the "difficulty of...circumstances" that gave rise to an employee’s or military service member’s decision, whether it was simply a choice between "two unpleasant circumstances," or whether he or she was presented with no other "practical alternative" than to act in such a way as to lead to the separation. Contrast, e.g., Gavin v. United States, 47 Fed. Cl. 486, 491 (2000) with Duffy v. United States, supra.
Even in cases where an employee makes a decision to resign or retire, a presumption of voluntariness arises only where there is "no evidence to the contrary." McLaughlin v. Florida, supra, 526 So. 2d at 936 (citing Covington v. Dept. of Health and Human Services, 750 F. 2d 937, 941 (Fed. Cir. 1984)). Indeed, in the Roskos case, evidence that a retirement decision was precipitated by actions that either had "an improper effect to pressure plaintiff to retire or was at least an arbitrary and capricious adverse action" appears to have vitiated any presumption of voluntariness that might otherwise have applied. See Roskos v. United States, supra, 213 Ct. Cl. 34, 39, 549 F. 2d 1396 (1977). According to Carmichael’s allegations supporting the first eight causes of action in his Complaint, and to the undisputed evidence in the administrative record, Carmichael’s decision not to sign his re-enlistment contract was based solely on the fact that the contract contained a SSN as his MPIN. That decision, in turn, was rooted in Carmichael’s religious conscience that he could not sign a contract containing a SSN as his identifying number "without violating God’s sovereign law and my convictions," as he clearly advised the Navy officer presenting the contract to him. (4a, 248a)
Prior to presenting Carmichael with the contract containing a SSN as his MPIN, the Navy knew that Carmichael could not sign it without violating his religious conscience. Nevertheless, the Navy insisted that Carmichael either sign the contract as is, or it was null and void. (4a; 244a-245a)
Carmichael’s case, then, is not like the one in Sammt v. United States, 780 2d 31, 33 (Fed. Cir. 1985), relied upon by the Claims Court, where a service member is confronted with "a choice of unpleasant alternatives." ( 7a) To the contrary, the Navy placed Carmichael in the same position as the IRS had placed Roskos in Roskos v. United States, supra, leaving Carmichael "with no practicable alternative" than to refuse to sign the re-enlistment contract. Surely, Carmichael’s claim that to sign the re-enlistment contract on terms that would put him in direct conflict with God and conscience is just as strong (if not moreso) as Roskos’s claim that to accept "reassignment and transfer to Philadelphia is hazardous to health and hardship to family.’" Id., 213 Ct. Cl. At 39-40.
The only question here, then, is whether Carmichael’s Hobson’s choice, like Roskos’s, was "produced" by wrongful government action.
3. Carmichael’s Decision not to Sign the Re-enlistment Contract was Produced by the Government’s Wrongful Action.
At the very heart of Carmichael’s Complaint is that the Navy had wrongfully denied his request for a religious accommodation to change his MPIN to a number other than a SSN. (26a-31a) Indeed, for five months prior to the presentation of the re-enlistment contract, Carmichael had sought review of this request, but had been discriminated against, and otherwise unlawfully and unconstitutionally hindered, by CSO Roesner. (Statement of Facts, supra, at 8-9.) More importantly, even though Carmichael had attempted to submit his request for review by his CO, as prescribed by SECNAVINST 1730.8(4) and (9), the request was never so submitted. (77a-78a)
Notwithstanding the undisputed fact that Carmichael’s request was never submitted to his CO, and the objective evidence that Carmichael’s CSO had unlawfully interfered with the process, the Claims Court blithely tossed aside Carmichael’s evidence that the Navy had acted arbitrarily, capriciously and in bad faith. Instead, the court concluded that the Navy’s decision not to treat Carmichael’s request as a "religious accommodation request" did "not affect the outcome of this case," and further, that "the alleged coercive acts by plaintiff’s CSO...did not prevent the Navy from properly handling plaintiff’s request." (9a-10a)
In order to reach these factual conclusions, the Claims Court had to treat Carmichael’s request as a request for a change in his MPIN, and not as a request for a religious accommodation necessitating a change in his MPIN. If Carmichael’s request was, in fact, one for religious accommodation, the Claims Court acknowledged that it was subject to the procedural and substantive rules laid down in SECNAVINST 1730.8 and DOD Directive 1300.17. (2a-3a) But the Claims Court maintained that Carmichael had made a simple request for a change in the MPIN, which was subject only to the discretion of the CNP, as provided by NAVPERSMAN 4610100. (3a)
By finding that Carmichael had simply submitted a request for a change in his MPIN, and thus, determined that the Navy’s denial of that request was governed not by SECNAVINST 1730.8 and DOD Directive 1300.17, but by NAVPERSMAN 4610100 (3a-4a, 9a-10a), the Claims Court decided that the Navy had "properly" handled Carmichael’s request to change his MPIN, because "applicable law" required the SSN to be a service member’s MPIN. (9a)
Having concluded that Carmichael was rightfully discharged for failing to sign a re-enlistment contract with a SSN as his MPIN, the Claims Court further concluded that Carmichael had voluntarily separated himself from the Navy. Had the Claims Court examined Carmichael’s request as one for religious accommodation, however, the Claims Court could not have so concluded.
a. Carmichael Requested Religious Accommodation.
Because the Claims Court’s determination that Carmichael had not, in fact, requested a religious accommodation goes to the merits of Carmichael’s claims of wrongful discharge, as stated in his first eight causes of action, that factual finding may only be sustained if the evidence presented in support of those claims was so "insubstantial" as to render Carmichael’s claim frivolous. See Williamson v. Tucker, supra, 632 F, 2d at 590-91.
The objective evidence in this case is not only sufficient to meet this threshold test, but it is sufficient to establish that the Claims Court’s finding that Carmichael had not requested a religious accommodation was "clearly erroneous."
Carmichael’s November 6, 1996, request, although not denominated as such, was, in substance, a request for a change in his MPIN based solely upon his religious conviction that he could no longer be identified by a SSN as his MPIN. (284a) Not only did Carmichael’s memorandum in support of that request, refer to the fact that his "religious convictions prohibit" him from being identified in any way by a SSN (284a), he attached thereto his lengthy letter to the SS Commissioner (in the form of a sworn affidavit), detailing how he had come to the religious conviction that the SSN, as it is currently utilized, is the number of the Beast in the Book of Revelation in the Holy Bible, and that as a Christian believer, he could no longer be identified by a SSN. (286a-291a) To treat the request as a request other than one for religious accommodation would be to ignore reality, it being obvious that Carmichael’s only reason for making the request to change his MPIN was his religious conscientious objection to being identified by a SSN as his MPIN. (286a-287a)
To fault Carmichael for not formally denominating his request a "religious accommodation request," or otherwise explicitly stating that "he seeks religious accommodation," as suggested by the Claims Court (2a) and as argued by the Government below (571a-572a), is both unfair and unjustified. Carmichael was a Chief Petty Officer, not a lawyer. Neither the Claims Court nor the Government point to any rule of procedure that requires a service member to comply with such pleading niceties. Indeed, to impose legal technicalities upon a request process at the command level would be inconsistent with the normal manner in which Navy personnel are commanded to relate in the chain of command. See Article 1156, Navy Regulations.
CSO Roesner’s actions reflect this understanding. He did not insist that Carmichael dot his procedural "i’s" and cross his substantive "t’s. To the contrary, CSO Roesner immediately recognized Carmichael’s request as one based upon religious conviction. Contrary to SECNAVINST 1730.8(9)(b), however, the CSO decided that he, rather than Carmichael’s CO, would determine that Carmichael’s request was not supportable, and refused to submit the request (548a, 559a) even though required by SECNAVINST 1730.8(4)(a) and (9)(a). (299a, 303a) Compounding this error, the CSO ridiculed Carmichael, informing him that he, Carmichael, could not take the Bible literally. (234a; 548a) The CSO’s actions prevented Carmichael from presenting his request to his CO. Nevertheless, when the request finally reached the CNP for action, an assistant to the DCNP, briefing the DCNP on Carmichael’s request, also recognized the request to be based upon Carmichael’s "religious beliefs." (213a)
After his discharge, the BCNR and Navy JAG both assumed, without question, that Carmichael had made a religious accommodation request. (146a-156a) Without hesitation, the BCNR requested the Navy JAG to review whether Carmichael’s request had been denied in accordance with SECNAVINST 1730.8, the Navy Instruction governing requests for religious accommodation. (146a, 172a-176a) The Navy JAG, in turn, reviewed the request according to the five-factor formula found in NAVSECINST 1730.8(9), and the free exercise clause of the First Amendment. (150a-156a) And the BCNR relied upon the JAG report in making its decision that Carmichael’s request had been rightfully handled according to the terms of NAVSECINST 1730.8 and the Free Exercise Clause of the First Amendment of the United States Constitution. (73a)
There is, then, not a scintilla of evidence in the administrative record before the Claims Court that the Navy ever treated Carmichael’s request as a simple request for a change of his MPIN, disconnected from his profession of religious conviction that he could no longer be identified by a SSN as his MPIN.
The Claims Court ignored this evidence, however, finding that Carmichael’s request was for a change in his MPIN, not for a religious accommodation, on the sole ground that Carmichael "was well aware" that the CNP was the only person authorized to change the MPIN, and that Carmichael had included in his cover letter a request to "forward" the matter to the CNP. (9a)
Such facts do not transform Carmichael’s request into one for a change in MPIN disconnected from his religious convictions. They simply reflected Carmichael’s subjective understanding that his request, even if favorably reviewed by his CO, had to be forwarded to the CNP for a change in his MPIN, as required by MILPERSMAN 4610100.
Moreover, Subsection 10(a)of SECNAVINST 1730.8 dictates that the procedures governing the application of the Navy’s religious accommodation policy do not turn on the subjective understanding of a chief petty officer. Rather, SECNAVINST 1730.8(10)(a) requires the Chief of Naval Operations (CNO) to "provide the statement of D[epartment] O[f] N[avy] policy on accommodation of individual religious practices and military requirements in paragraphs 4 and 4a of this instruction to applicants for...reenlistment, and require a signature acknowledging DON policy." (Emphasis added.) (304a) There is no evidence in this case that obligation was fulfilled. (78a-79a; 115a- 121a) Had it been, Carmichael would have been apprised of the religious accommodation policy and afforded an opportunity to correct whatever mistaken understanding he might have had with respect to his request.
NAVSECINST 1730.8(11) also indicates that it was not Carmichael’s responsibility to make sure that his request for accommodation was submitted in a proper form. Rather, it is the responsibility of the..."A[ssistant] S[ecretary] of N[avy] (M[anpower] & R[eserve] A[ffairs]) to ensure "overall policy control and program execution." And, further, it is the responsibility of the CNO to "implement... the policies and procedures" governing the Navy’s policy of religious accommodation.
There is simply nothing in NAVSECINST 1730.8 that requires a religious accommodation request to be labeled, as such, or to be accompanied by an unambiguous statement that it is such a request. Neither CSO Roesner nor the assistant to the DCNP acted contrary to this understanding. Nor did the BCNR and NJAG. Even the Government in the court below initially referred to Carmichael’s request as a "request for religious accommodation" (43a (Para. 8); 51a), and analyzed the legality of the CNP’s denial according to the five-factor formula set forth in SECNAVINST 1730.8(9). (54a-60a) It was not until Carmichael filed his Response and his Cross-Motion for Judgment on the Administrative Record on Count III of his complaint that the Government changed its tune, claiming for the first time that Carmichael’s request was a request for a change in his MPIN, not a request for religious accommodation. (568a-572a; 579a (Para. 23)
Finally, to hold that Carmichael had not filed a request for a religious accommodation ignores the common sense of the matter. If Carmichael had not come to the religious conviction that the SSN is the number of the beast, then he would never have requested a change in his MPIN from a SSN to some other number. The Claims Court’s decision to disconnect this fact from Carmichael’s request was clearly erroneous.
b. As a Request for Religious Accommodation, Carmichael’s Request for a Change in his MPIN was Wrongfully Denied.
According to Navy regulations, all requests for religious accommodation must first be reviewed and acted upon by the requester’s CO:
Accommodation of a member’s religious practices cannot be guaranteed at all times but must depend on military necessity. Determination of necessity rests entirely with the commanding officer.
SECNAVINST 1730.8(4)(a)(emphasis added)(299a)
In the absence of a specific rule commanding or denying accommodation, the CO, in turn, must apply a five-factor formula to determine whether to accommodate a particular request. SECNAVINST 1730.8(9)(a):
(1) The importance of military requirements, including individual readiness, unit readiness, unit cohesion, health, safety, morale and discipline.
(2) The religious importance of the accommodation to the requester.
(3) The cumulative impact of repeated accommodations of a similar nature.
(4) Alternative means available to meet the requested accommodation.
(5) Previous treatment of the same or similar requests, including made for other than religious reasons.
(303a)
It is undisputed that Carmichael’s request was never submitted to his CO. (3a-4a, 9a) Additionally, there is credible evidence that Carmichael’s CSO, Jack Roesner, actively prevented Carmichael’s request from being submitted to the CO. (9a-10a) Thus, because Carmichael’s request was, in fact, a request for a religious accommodation, there is objective evidence that the Navy arbitrarily and capriciously denied Carmichael’s request, having failed to submit that request to Carmichael’s CO for review under the five-factor formula governing religious accommodation requests. Kindred v. United States, 41 Fed. Cl. 106, 115-119 (1998). Moreover, it is indisputable that the BCNR, when it submitted Carmichael’s request for review by the NJAG, that the NJAG’s application of the five-factor formula could not be substituted for one by the CO. Not only did the NJAG review take place after Carmichael was discharged, but it was conducted by a JAG officer, not Carmichael’s CO as required by SECNAVINST 1730.8(4)(a) and (9). Kindred v. United States, 41 Fed. Cl. 106, 119-121 (1998); Sanders v. United States, 219 Ct. Cl. 285, 594 F. 2d 804, 817 (1979)(en banc).
Because Carmichael’s request was one for religious accommodation,not just for a change in his MPIN, then the decision to require Carmichael to sign a re-enlistment contract without having previously afforded Carmichael a proper review of his request was wrongful, and therefore, according to the rule in Roskos, supra, Carmichael’s was involuntarily separated from the Navy, because the Navy’s "wrongful" handling of Carmichael’s request clearly "produced" Carmichael’s decision not to sign the re-enlistment contract.
c. The CNP’s Authority Under MILPERSMAN 4610100 Is Not Exempt from NAVSECINST 1730.8.
Notwithstanding this evidence of wrongful discharge, the Claims Court insisted that "as the CNP is the only person who can change plaintiff’s MPIN, whether or nor plaintiff’s request was a religious accommodation request does not affect the outcome of this case." (9a) The Claims Court came to this conclusion after it had determined that the denial of Carmichael’s request for a changed MPIN was properly denied by the CNP under MILPERSMAN 4610100:
As stated in MILPERSMAN 4610100, only the CNP can change a member’s MPIN...The DCNP, acting under the CNP’s authority denied plaintiff’s request...based on military regulations and applicable law that require the use of a member’s SSN as their MPIN. In particular, Executive Order 9,397 mandates the use of a person’s SSN for any federal department, establishment, or agency utilizing a system of permanent account numbers. Secretary of Navy Note 1070 states, "Effective 1 January 1972, the SSN will become the sole military personnel identification number for all naval personnel.
(9a)
Implicit in the Claims Court’s analysis, is the legal assumption that compliance with MILPERSMAN makes noncompliance with SECNAVINST 1730.8 irrelevant, that the Navy rule mandating the SSN to be the MPIN is exempt from the Navy’s religious accommodation policy. Such is not the case.
First, there is no language expressly stating that the Navy policy mandating "that the SSN will become the sole military personnel number for all naval personnel" is exempt from the religious accommodation policies of the Department of Defense and of the Navy. Nor is there any authority which, by implication, elevates the Navy’s policy requiring the SSN as the MPIN above the Department of Defense’s and Navy’s religious accommodation policies.
To the contrary, the authority upon which the MPIN policy rests is permissive, whereas the authority upon which the religious accommodation policy is mandatory. According to the Claims Court, the Navy’s authority to require the SSN as a service member’s MPIN is derived from Executive Order 9,397 which states that, "in the interest of economy and orderly administration," it is desirable for "the Federal Government [to] move towards the use of a single, unduplicated numerical identification system...." (159a)
Significantly, the Executive Order did not mandate this "move." Rather, the order left it to the discretion of the head of "any Federal department, establishment, or agency... whenever the head thereof finds it advisable to establish a new system of permanent account numbers, utilize exclusively the Social Security Act account numbers assigned...." (160a)(emphasis added) President Franklin D. Roosevelt signed this order in 1943 (160a), yet the Navy did not mandate SSN’s as MPIN’s until January 1, 1972, almost thirty years later. (9a, 79a)
By contrast, the Department of Defense declared that its policy undergirding the granting of religious accommodation requests rests upon the nation’s basic principle of "free exercise of religion," not upon administrative convenience:
The Department of Defense places a high value on the rights of members of the Armed Forces to observe the tenets of their respective religions. It is DOD policy that requests for accommodation of religious practices should be approved by commanders when accommodation will not have an adverse impact on military readiness, unit cohesion, standards or discipline.
DOD Directive 1300.17, 3.1
Accordingly, the Navy has declared that its policy "is to accommodate the doctrinal or traditional observances of the religious faith practiced by individual members when they will not have an adverse impact on military readiness, individual or unit cohesion, health, safety or discipline." (299a)
Conspicuously absent from the considerations relevant to a request for religious accommodation is any concern for "administrative convenience." Yet administrative convenience is the only reason given in Executive Order 9.397 to justify authorizing a head of department to impose the SSN as the MPIN. Surely, a policy based upon "administrative convenience" should not be read to trump a policy based upon constitutional principle and military necessity.
There is an even more compelling reason to reject the Claims Court’s ruling that the changing of a service member’s MPIN is exempt from the rules governing religious accommodation requests. SECNAVINST 1730.8(4) dictates that the decision to grant or deny a religious accommodation request "must depend upon military necessity," and further, that the "determination of [such] necessity rests entirely with the commanding officer." (Emphasis added.)
On its face, this language dictates that when the CO decides that military necessity does not preclude granting a particular religious accommodation request, then the accommodation must be made. Otherwise, the decision to accommodate would not "rest entirely" with the CO. In this case, if Carmichael’s CO would have decided that military necessity did not preclude changing Carmichael’s MPIN to a number other than a SSN, then the CNP either would have had to change Carmichael’s MPIN from the SSN to another number, or to initiate "administrative action," such as that contemplated by SECNAVINST 1730.8(9)(b), which could result in an administrative separation. If the CNP chose the latter alternative, then the procedural rules governing such separations are subject to the federal regulations and NAVPERSMAN sections, as alleged in Carmichael’s seventh cause of action. (31a-32a)
In summary, the rule governing changes in MPIN’s does not trump the rules governing religious accommodation requests; rather, the rule governing religious accommodation requests trumps the rule governing changes in MPIN’s.
And that is how it should be. The very purpose of the Navy’s religious accommodation policy is to provide for exemptions from rules that mandate certain action that conflicts with a service member’s religious convictions. If there is no mandate that conflicts, then there is no need for a religious accommodation. To exempt the rule mandating the SSN as a service member’s MPIN, then, would defeat the very reason that the policy governing religious accommodations was put into effect.
d. The CNP’s Decision Not to Change Carmichael’s MPIN Was Affected by the Navy’s Noncompliance with SECNAVINST 17830.8.
Without referring to any evidence in the record, the Claims Court maintained that the the CNP "would make" the decision to deny Carmichael’s request for a change of MPIN "no matter if plaintiff’s request was given to him directly from plaintiff or if it was forwarded to him from plaintiff’s CO." (9a-10a) Furthermore, again without citing any evidence in the record, the court found that "[t]he alleged coercive acts by plaintiff’s CO...did not prevent the Navy from properly handling plaintiff’s request." (10a)
These statements rest upon pure speculation, not evidence. To make such statements required the Claims Court to imagine what would have happened to Carmichael’s request had it been submitted to his CO. Without any evidentiary support whatsoever, the court assumed that, even if the CO had acted favorably on that request, it would have had no impact on the CNP.
To reach this conclusion, the Claims Court also disregarded SECNAVINSTR 1730.8(9)(b) which, by its terms, sets forth three alternatives available when a CO’s decision favoring religious accommodation threatens to have an adverse impact on orderly administration: "reassignment", "reclassification" or "separation." (304a) Without knowing what the CO would have determined had Carmichael’s request come before him, the Claims Court had no idea what the CNP would have done. Indeed, for the Claims Court to conclude that the CNP’s decision would have been adverse to Carmichael, even if the CO had acted favorably upon his request, requires a finding that the CNP would have acted contrary to SECNAVINST 1730.8(9)(b).
Under the rule of Hamlet v. United States, 873 F. 2d 1414, 1416 (Fed. Cir. 1989) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)), a "complaint should not be dismissed unless it is beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." According to this rule, the Claims Court should have determined that Carmichael’s CO would have reviewed the Carmichael’s request as one for religious accommodation, and furthermore, ruled in favor of that request before forwarding it to the CNP for action.
Only by drawing speculative inferences adverse to Carmichael, could the Claims Court assert that the failure of the Navy to comply with SECNAVINST 1730.8 did not impact on Carmichael’s decision not to sign his re-enlistment contract. The objective evidence of that denial, coupled with the undisputed evidence of CSO Roesner’s dilatory and discriminitory actions demonstrates otherwise - Carmichael’s decision not to sign was produced by the Navy’s wrongful handling of Carmichael’s request for a religious accommodation.
4. Carmichael was Involuntarily Separated from the Navy.
For the reasons stated, there was substantial objective evidence supporting a finding that the Navy involuntarily separated Carmichael from the Navy. The Navy’s wrongful handing of Carmichael’s request for religious accommodation clearly produced Carmichael’s decision. Hence, according to the rule in Roskos, Carmichael’s separation was involuntary. The Claims Court’s finding to the contrary was erroneous, no matter what standard of review is applied.
C. APART FROM THE NAVY’S WRONGFUL HANDLING OF CARMICHAEL’S REQUEST, CARMICHAEL’S SEPARATION FROM THE NAVY WAS INVOLUNTARY.
In his ninth alternative cause of action, Carmichael claimed, that independent of his claim of wrongful discharge, he was involuntarily separated from the Navy and, therefore, entitled to severance pay and other benefits under 10 U.S.C. Section 1141. (33a-34a) Even as to this claim, the Claims Court erred.
According to the settled rules of this court, Carmichael may show that he was involuntarily separated from military service, if he can, inter alia, demonstrate that his decision not to sign his re-enlistment contract was (a) "coerced" by the Navy, or (b) obtained under time pressure or ( c) obtained by "misrepresentation relied upon to plaintiff’s detriment". Scharf v. Dept. of Air Force, 710 F. 2d 1572, 1574 (Fed. Cir. 1983).
The Claims Court’s findings that Carmichael met none of these standards was clear error.
1. The Navy Coerced Carmichael into not Signing the Re- enlistment Contract.
To demonstrate government coercion, there must be evidence that Carmichael, in deciding not to sign his re-enlistment contract, (a) involuntarily accepted the terms of another; (b) circumstances permitted no other alternative; and ( c) said circumstances were the result of coercive acts of the opposite party. Nickerson v. United States, 35 Fed Cl. 581, 586 (1996), aff’d., 113 F. 3d 1255 (Fed. Cir. 1997); Christie v. United States, 207 Ct. Cl. 333, 338 (1975).
As to whether Carmichael involuntarily accepted the terms of another, the Claims Court made no finding. (10a) The evidence of involuntariness in the record, however, is unmistakable. Carmichael was presented with a re-enlistment contract containing a SSN as his MPIN and told to sign it, as is, or it would be null and void. (4a) Against his will, Carmichael did not sign the contract, having indicated by sworn oath that he was committed to fulfilling his "obligated service requirement" before witnesses and Navy officers. (4a) It is self-evident, then, that Carmichael did not set the terms of his re-enlistment, the Navy did. Thus, by not signing, he "involuntarily" accepted the term that, if he did not sign, he would be separated from the Navy.
The circumstances under which Carmichael made his decision left him "no other alternative." If he signed the contract containing a SSN as his MPIN, he would have violated "God’s sovereign law" and his deeply held religious "convictions." (4a; 247a-249a) The Claims Court completely ignored this fact, cavalierly dismissing Carmichael’s religious conscience, on the ground that the DCNP had ruled that Carmichael could re-submit his request for a change in his MPIN, should the Social Security Administration take action to change Carmichael’s number to 000-00-0000. (10a) Acts of religious conscience, however, cannot be suspended. Either one obeys God, or he does not. There is no alternative middle ground, no matter how temporary.
As for the circumstances in which Carmichael found himself on the fateful day in March 1997, they were not of his making, but of the Navy’s. Just two weeks before the Navy presented him with the re-enlistment contract containing the SSN as his MPIN, he had learned of the DCNP decision to deny his request for a change in his MPIN. (241a) The DCNP’s decision, in turn, had been made on February 11, 1997, over three months after Carmichael had first attempted to submit his request to the CNP up the chain of command. (3a) Even then, Carmichael had been prevented by CSO Roesner from honoring the chain of command, ridiculing Carmichael’s religious beliefs and directing Carmichael to submit his request directly to the CNP. (234a-235a; 548a) In his direct effort to secure action from the CNP, Carmichael was rebuked in early February, for not communicating with the CNP through his CO. (238a)
None of these facts were addressed by the Claims Court in its assessment of the "coercive" nature of the circumstances leading to Carmichael’s decision not to sign the re-enlistment contract. To the contrary, the court simply dismissed them as irrelevant because they "did not prevent the Navy from properly handling plaintiff’s request" for a change in his MPIN. (9a-10a) But that is not the issue of coercion relevant to Carmichael’s alternative ninth cause of action. The issue there is whether the CSO had acted in such a way as to create "coercive circumstances" that affected Carmichael’s decision not to sign the re-enlistment contract. Clearly they did.
2. Carmichael Decided Not to Sign under Time Pressure.
Even if the circumstances under which Carmichael made his decision not to sign did not amount to duress or coercion, they did put Carmichael under such time pressure that he had no opportunity to appeal the DCNP decision, which he had received just two weeks before he was required to sign the contract as is or it would be null and void.
On March 4, 1997, one day after Carmichael had been notified by the DCNP that his request for a change in MPIN had been denied, Carmichael submitted a letter addressed to the DCNP to his OIC. In response, the OIC called Carmichael into his office and informed him that he was not going to forward his appeal because "Chiefs don’t argue with Admirals" and "[t]here is not enough time to process this before March 17th." Additionally, the OIC told Carmichael that Carmichael should "sign the extension contract and appeal to the Social Security Administration." In response, Carmichael advised the OIC that to sign the contract with a SSN as his MPIN would be "sin." (241a-242a)
The Claims Court ignored this evidence completely, dismissing any possibility of a "time pressure" defense on the grounds that Carmichael had "five days" from the time that he knew that the re-enlistment contract contained a SSN as his MPIN and the day he had to decide whether to sign it. For the Claims Court to have completely ignored the pressure placed upon Carmichael in the fourteen-day period, from the day that he first learned of the DCNP denial to the day he was presented with the ultimatum - sign or else, is clear error.
3. Carmichael was Misled by the Navy’s Failure to Comply with NAVSECINST 1730.8(10)(a).
Carmichael’s claim in his ninth alternative cause of action is based upon the assumption that the Navy had not wrongfully denied him his request for change in his MPIN. As noted above, to reach that conclusion, Carmichael’s claim must be construed as a simple request for a MPIN, not as a request for religious accommodation.
According to SECNAVINST 1730.8(10)(a), however, the CNO is obliged "to provide the statement on DON policy on accommodation of individual religious practices and military requirements in paragraphs 4 and 4a of this instruction to applicants for...reenlistment." (304a) To fulfill this obligation, the Navy would have had to bring to Carmichael’s attention that it is DON "policy...to accommodate the doctrinal or traditional observances of religious faith practiced by individual members when they will not have an adverse impact on military readiness, individual or unit readiness, unit cohesion, health, safety, or discipline." Additionally, the Navy would have had to advise Carmichael that "[a]ccommodation of a member’s religious practices cannot be guaranteed at all times but must depend on military necessity, [d]etermination of [said] necessity rest[ing] entirely with the commanding officer." (299a)
There is absolutely no evidence in this case that the Navy fulfilled this obligation. Instead, on March 4, 1997, the OIC advised Carmichael that his only option to obtain relief from the DCNP denial of his request for a change in his MPIN was an "appeal to the Social Security Administration." (241a) That was not true. But the Claims Court ignored this misrepresentation entirely in its assessment that Carmichael had not provided "deceptive information that plaintiff reasonably relied upon when choosing not to sign the re-enlistment contract...." (10a)
4. Conclusion.
The findings made by the Claims Court that Carmichael had voluntarily separated himself from the Navy are clearly erroneous, even apart from the evidence that the Navy’s wrongful handling of Carmichael’s request for religious accommodation produced Carmichael’s separation.
VII. CONCLUSION AND STATEMENT OF RELIEF SOUGHT
With respect to the first eight causes of action in the Complaint, the Claims Court’s finding that Carmichael voluntarily separated himself from the Navy is not only unsupported by the objective evidence, but clearly erroneous, the Navy’s wrongful handling of Carmichael’s request for religious accommodation having produced Carmichael’s decision not to sign his re-enlistment contract.
With respect to the alternative ninth cause of action, the Claims Court’s finding that Carmichael voluntarily separated himself from the Navy is not only unsupported by the objective evidence, but clearly erroneous, the Navy’s having coerced Carmichael’s decision not to sign the re-enlistment contract, or pressured that decision, or secured it by misrepresentation on which Carmichael justifiably relied.
Therefore, this Court should reverse and remand this case with instructions that the Claims Court find that Carmichael’s November 1, 1996 request was, in fact, a request for religious accommodation and that the Navy’s wrongful handling of that request produced Carmichael’s decision not to sign his re-enlistment contract, and thus, that Carmichael was involuntarily separated from the Navy, and with the further instruction that the Claims Court take jurisdiction and address the merits Carmichael’s claims of wrongful discharge contained in the first eight causes of action in his Complaint.
In addition, or in the alternative, this Court should reverse and remand this case with instructions that the Claims Court find that Carmichael was either unlawfully coerced, or unlawfully time pressured, or misled by the Navy into his decision not to sign his re-enlistment contract, and, if relief is denied under first eight causes of action, to take jurisdiction and address the merits Carmichael’s claim of involuntary separation contained in his alternative ninth cause of action.
In the alternative, this Court should reverse and remand with instructions to the Claims Court to conduct an evidentiary hearing appropriate to the "disputed issue" of the voluntariness or involuntariness of Carmichael’s separation from the Navy.
Respectfully submitted,
Herbert William Titus,
Counsel for Appellant
David Alan Carmichael