Judge Lourie:  The next case is Carmichael versus the United States, 01-5034.  Mr. Titus.

Herb Titus:  Good Morning.  May it please the Court, My name is Mr.Herbert W. Titus from Virginia Beach, Virginia representing Mr. David Carmichael the Appellant in this case.  Five years ago, On Oct 1 1996 Mr. Carmichael, then a Naval Chief Petty Officer, after having undergone an intensive one year study of the Bible, came to the conviction that he could no longer be identified by the Social Security Number that had been assigned to him in childhood; and when he became a member of the military, became his Military Personnel Identification Number.  A 16 year, 8 month, 7 day veteren, with a distinguished service record, Mr. Carmichael, a devout Christian determined to seek a religious accommodation that he would have a different number assigned to him as his Military Personnel Identification Number.  In Nov of 1996 , he submitted a request to his Chief Staff Officer to be submitted to his Commanding Officer to be forwarded to the Chief of Naval Operations,…Chief of Naval Personnel, for the purpose of obtaining that religious accommodation and to be no longer identified by that Number.

Judge Lourie:  Is’nt this case about voluntariness?

Herb Titus:  I was getting to that your Honor because that particular request was never submitted to the Commanding Officer and in the eight of the nine claims that are set forth in the complaint it is our contention that because this was not submitted to the Commanding Officer as required by the  SECNAVINST 1730.8 that it was a wrongful handling, it was contrary to the rules and regulations of the Navy which in turn produced the separation.  In the ROSKOS rule…

Judge Lourie:  Which was therefore coerced.

Herb Titus:  That is correct.  Under the ROSKOS rule, if wrongful conduct of the government produces the separation.

Judge Lourie:  He.. He was’nt thrown out of the military…our law has been quite consistent in saying that the fact that you have uh choices between undesirable alternatives doesn’t mean that you have been coerced it means one choice rather than another.

Herb Titus: This is not a case between undesirable alternatives as is also the case with regard to ROSKOS, he had no practical alternative other than to do what he did.  Now this is not a case where he resigned and then protested later.  He made it very clear at the point when he was required to sign a contract which had the Social Security Number as his M.P.I.N., which he, as a matter of religious conscience as his duty before God could not sign…

Judge Dyk:  What.. What.. What we basically need to decide isn’t it, is whether he was treated wrongfully by the government, either because they refused to  consider his accommodation request or because the C.O. was required to grant his accommodation request.  I know you are making the first of those two arguments, are you making the second argument that the Navy was compelled to accommodate him?

Herb Titus:  At this particular point your Honor, we are not making that argument.  We are making the argument that the regulation, that the procedures set forth from the Secretary, Secretary of the Navy Instruction 1730.8 requires that his request for a change in the M.P.I.N., based upon his religious conviction was a request for religious accommodation that by the provisions of that particular instruction must be submitted to the Commanding Officer.

Judge Dyk:  Then your theory has to be that the Commanding Officer would have had authority to act favorably on that

Herb Titus: That is correct and he was deprived of that opportunity for the Commanding Officer to have made a favorable decision.

Judge Dyk:  And the government says the Commanding Officer could not have acted favorably on the request.  So then, isn’t that basically the difference between you and the government?  You say the C.O. could have acted favorably but they say he couldn’t, we have to decide which one of you is right.  Correct?

Herb Titus: Yes, that is exactly correct.  Uh, they .. they really make two alternative arguments on that your Honor.  Uh, the first argument is that it would be legally impossible for the Navy to have assigned to Mr. Carmichael any number other than the Social Security Number as his M.P.I.N.  Our position is that it is not legally impossible, it is still a matter of discretion.  Now they point to three sources as the basis on which it is legally impossible.  The first is an Executive Order from the President that indicates that if a head of a department determines that it is appropriate to have the Social Security Number as the identifying number in that particular department, then that should be the number in that particular department.  But that’s based upon a question of administrative convenience.  As a matter of fact, the Secretary of the Navy never adopted that particular number as an M.P.I.N. until over, I think it was nearly, 25 years later.  And so it indicates that particular executive order did not mandate that every one in that particular department have a Social Security Number as it’s identifying number.  As a matter of fact, when the Secretary of the Navy implemented it in the 1970’s there were certain exceptions with regards to that…

Judge Dyk:  W.. W… Was Mr. Carmichael’s position that his religious belief’s prevented him from having an identifying number at all, or was it simply that his religious beliefs were that he couldn’t, use a Social Security Number.

Herb Titus:  The Social Security Number your Honor.  He does not object to some kind of identifying number….

Judge Dyk:  How do we… How do we… Where do we find that?

Herb Titus: You’ll find that in his application, in his request. You’ll find that in the record where he submitted along with his request of the letter to the Social Security Administration which I believe is on page 281 in the joint appendix.  And in the attached letter on page 286a through 280, uh, 291 is the letter to the Social Security Administration. So that is wasn’t that he objecting to ….

Judge Dyk: Wait, wait, wait wait.  Help me.  Show me, would you?  Where he.., where he said that he would accept some other number.

Herb Titus: Well if you’ll look at the paragraph on page 287a that begins with next…

Judge Dyk: My next step

Herb Titus:  is where I began my journey into the closed loop information system

Judge Archer:  I also show page 285a.

Herb Titus:  That is correct.

Judge Lourie:  “I do not object to assigning an accounting number.   I respectfully request an M.I.N. be assigned to my personnel record.”

Herb Titus:  It indicates that he is not objecting to the number, he is objecting to the Social Security Number itself because of the indication is that this is a number that is universally required.  It is the universality of the requirement that lead him to the conviction that this was the number of the beast as identified in the book of Revelation.  Now, what is important here is to also notice that the Chief of Naval Personnel had discretion to change the number.  If indeed the law required that the Social Security Number be the number, than how and why should the Chief of Naval Personnel have any discretion at all with regard to the matter?  And indeed you can also find in the appendix that there was a provision where a pseudo social security number, zero, zero, zero, zero, zero, zero, zero, zero, zero.  I think that I got all the zeros.  So there is no indication what-so-ever that the law prohibits the Navy from assigning a number other than the Social Security Number as the Military Personnel Identification Number.  One of arguments that the government makes is that the Internal Revenue Service requires that the Social Security Number be the one that is submitted by the Navy to the Internal Revenue Service and yet that overlooks 26 US Code, Section 6109, Subsection D., where the Secretary of the Treasury can make an exception to that.  And it also overlooks the fact that in the regulations with regard to identifying numbers, the Social Security Number is not the only number accepted by the tax people with regard to an identifying number.

Judge Dyk:  I guess what the government would say, is that while the Secretary of the Treasury can make an exception, the C.O. wasn’t in a position to make an exception for Internal Revenue Service purposes.

Herb Titus: Well, as a matter of fact, the C.O. Couldn’t have changed the M.P.I.N himself, he would have to of submitted that to the Chief of Naval Personnel because the Chief of Naval Personnel only had that particular authority.  But the point I am making here your Honor, is that if indeed he was entitled to a religious accommodation, under the Secretary of the Navy Instruction 1730.8 then it was the Navy that should have approached the Secretary of Treasury.  Instead what happened is that the Chief of Naval Personnel put the burden back on my client to approach the Secretary of Treasury or the Social Security Administration, directly contrary to the principle that is embodied in the policy of religious accommodation.  Because if you look at 1730.8 it states specifically that the policy of the Navy is to accommodate the religious convictions unless there’s some military necessity that would otherwise prevent it.  And that question of military necessity your Honor is to be determined by the Commanding Officer in the first instance, not by some J.A.G. officer after the fact, not by some other person, but by the Commanding Officer himself.  Now the other position taken is the one that was subscribed to by the court below, was that with regard to a request for a Military Personnel Identification Number, the Navy has complete discretion, that the provisions with regard to religious accommodation to don’t apply to a request for a change of Military Personnel Identification Number.  That is quite a novel position for the government to take pointing to no provision in either the religious accommodation instruction or in the military personnel manual to indicate that somehow the Military Personnel Identification Number is exempt from this mandatory policy of religious accommodation in those instances unless there’s a military necessity prevents that.  Now what’s important here is to look at 1730.8 and if you look at the appendix you can see the entire regulation set forth there.  There are some specific provisions with regard to uniforms, with regard to immunization, with regard to food, in which they set up special rules with regard to those matters.  If the Military Personnel Identification Number was to be treated specially, then you would expect to see something in that particular regulation with regard to Military Personnel Identification Numbers.  But there is nothing.  So there is no indication, either express or implied, that somehow a request for a change in the Military Personnel Identification Number is not subject to the policy and rules and regulations with regard to a request based upon a religious accommodation.  So on those basis, we believe there is no basis upon which to deny that indeed in this particular case that the separation of my client from the military was produced by the wrongful conduct of the Navy by failing, and indeed deliberately choosing, that is the Chief Staff Officer deliberately choosing to not submit this matter to the Commanding Officer as required.

Judge Dyk:  There’s no, uh, affidavit here from the C.O. here saying that if this had been submitted to him he would have considered the appropriate factors and denied it.

Herb Titus:  No there is no affidavit and at the same time your Honor, there was no opportunity with regard to this matter to submit it on the basis of factual and evidentiary matters.  This was handled by the court on a motion to dismiss without really allowing either party to present evidence with regard to this matter.  I see my time is up and I am reserving time for my rebuttal, thank you very much.

Judge Lourie:  We will save it.    Ms. Moore.

US Attorney:  May it please the Court to respectfully request the Court to affirm the decission of the Court of Federal Claims, dismissing the claim

Judge Dyk:  Let… Let’s suppose that a serviceman came up in a reenlistment, and the people who were in charge of the reenlistment process we will let you reenlist but only if you promise to never go to church again.  Do you contend that, that would be voluntary action by the serviceman if he didn’t reenlist?

US Attorney:  Your Honor, that would be wrongful conduct by the military personnel to make such an ultimatum.

Judge Dyk:  So we have to decide whether the conduct was wrongful or not.

US Attorney:  That’s right.  And, and Mr. Carmichael’s counsel focuses heavily on the ROSKOS case.  In that case the Internal Revenue Service had transferred an employee from Scranton Pennsylvania to an office on the far side of Pennsylvania.  And the member then retired because it was such a hardship to his family to commute that lengthy distance.  The court in finding that was an involuntary separation from the government, from the Internal Revenue Service, that finding was based on the fact that there were no procedures in place that would have allowed the Internal Revenue Service to make the transfer for the reason it did.  In other words, wrongful action by the government.

Judge Dyk:  Okay, so you agree with Mr. Titus that the heart of this case is whether the C.O. could have made an accommodation here or whether he couldn’t?

US Attorney:  Your Honor, the issue is, did the government act wrongfully.  Regarding the procedures in place, Mr. Carmichael…

Judge Dyk:  W..What’s the answer to my question?  Is that the issue in the case, whether the C.O. could have acted to excuse him from the Social Security Number or whether he didn’t have the authority to do that.

US Attorney:  That is one issue in the case.  And on that issue we opined, and it is contained in our brief, and it was also held in the Court of Federal Claims, that only the C.N.P., the Chief of Naval Personnel could make the decision regarding requests to change a service member’s Military Personnel Identification Number.  Mr. Carmichael…

Judge Dyk:  But the C.O. could have requested,..if he considered the accommodation request and he thought that it had merit under the standards of the policy, he could have requested the Chief of Naval Operations to change the guys number from a Social Security Number to some other number, right?

US Attorney:  Conceivably, the Commanding Officer could have looked at the request had he received it and favorably reviewed it, but as Mr. Carmichael states in his brief on page 38, and I quote, Mr Carmichael states, quote, that it was his subjective understanding that his request, even if favorably reviewed by his C.O. had to be forwarded to the C.N.P., Chief of Naval Personnel, for a change in his M.P.I.N. as required by Military Personnel Manual section 4610100.  In other words, even Mr. Carmichael agrees that assuming the Commanding Officer had seen his request and acted favorably upon it, agreed with it, then only the Chief of Naval Personnel, someone higher than the C.O., could be the one to in fact change or agree to have the M.P.I.N. changed.

Judge Dyk:  But when the Chief of Naval Personnel acted on his request, could he say I don’t care what the C.O. says about the accommodation policy, I wouldn’t change it under any circumstances.

US Attorney:  He did not say that, in fact your Honor, he said something much more lenient to Mr. Carmichael.  He said on the front of page 212 of the appendix, on the denial letter dated February 11th, that , should Mr. Carmichael receive a new S.S.N., from the Social Security Administration of 000000000, that he should resubmit his request for a new M.P.I.N. to the C.N.P.  and the letter moreover infers that Mr. Carmichael had requested that these digits, these numbers, be his new Social Security Number and I will quote from that letter.

Judge Dyk:  Did the Chief of Naval Personnel say that was the only way for Mr Carmichael to use another number or did he, was it a possibility that if the C.O. had recommended favorable action that the Chief of Naval Personnel would have allowed him to use a different number?

US Attorney:  He did not expressly say either way, but he did state that until such time as the Social Security Administration formally acknowledges the zeros as his new S.S.N., it would inappropriate to alter your military records.  At the end of this letter he says, “when if the Social Security Administration takes such action, you may resubmit your request for a more favorable consideration.”  Now importantly above that language in the letter, the C.N.P. states, in your letter, his request for a new M.P.I.N., you indicated that you have never requested a Social Security Number and that you want your Military Personnel Identification Number to match what you currently use for an S.S.N., specifically, 000000000.  That indicates that Mr. Carmichael had already chosen in other areas to make up or use a new Social Security Number consisting of the number zero.  And contrary to what Mr. Carmichael’s counsel had stated to the Court, he apparently had taken voluntary measures to change it in other areas of his life.  Not in the military because that had not been allowed but in other areas according to this language.  And therefore the Deputy Chief of Naval Personnel was being quite considerate and lenient with Mr. Carmichael, saying, if you do get the Social Security Administration to formally change your number to be the zeros that you’ve asked for then we will reconsider your request.

Judge Archer:  Ms. Moore, Mr. Titus has indicated that there was a requirement to accommodate.  Does this put a burden on the Navy to really take some action itself to accommodate or is it purely discretionary?

US Attorney:  Your Honor, it is purely discretionary, and there is a Navy personnel…

Judge Archer:  What.., what about the C.O., is it discretionary for him?

US Attorney:  It would have been discretionary for him according to Navy instruction 1730.8…

Judge Archer:  If he, if he didn’t indicate that there wasn’t any military necessity, was it still discretionary?

US Attorney: If the C.O. had found there was no military necessity for…

Judge Archer:  No, I mean, as I understand this regulation, it says that the Navy is supposed to accommodate unless there is a military necessity.  Now there is no discussion any place about the military necessity in the record here, was there?

US Attorney: There wasn’t but it was implied your Honor in the Executive Order dated 1943 by President Roosevelt.  And in that order he stated that, and I quote, “it is desirable in the interest of economy and orderly administration that the federal government move towards the use of a single unduplicated numerical…

Judge Archer:  Well, but the Navy had adopted it’s own implementation though, didn’t it?….

US Attorney:  Yes the Navy in 197…

Judge Archer:  …And they said, and they put on the qualification that there had to be a military necessity in order not to accommodate it.

US Attorney:  Your Honor, those are factors that can be considered by a Commanding Officer in deciding whether or not to grant a religious accommodation request.  But it should be remembered…

Judge Archer:  … But nobody has, … but nobody has addressed those…

US Attorney:   ….Well that…

Judge Archer: …And, … and it was not acted upon by the, or forwarded to the Commanding Officer to make those determinations…

US Attorney:  That’s because…

Judge Archer:  … So why isn’t this a failure on the part of the Navy to follow it’s own rule here?

US Attorney:  It’s not a failure your Honor because in his November 6, ‘96 letter to his Chief Staff Officer asking that it be forwarded Mr. Carmichael states, that what he wants, he says this in the “re:” column, this is a request for a new M.P.I.N., Military Personnel Identification Number.  In the body of that request he states that it is because of his religious preferences.  Navy Military Personnel Manual 4610100 requires that, specifically requires that, any request by a service member to change his M.P.I.N. can only be decided by the Chief of Naval Personnel…

Judge Archer:  Yes but, yes but isn’t there some obligation to go through channels here to do something up the line to get to the Chief of Naval Personnel?

US Attorney:  No, that .. that

Judge Archer:   ….I mean ordinarily a Navy Petty Officer is not in direct communications with the Chief of Naval Personnel.

US Attorney:   Well your Honor, that instruction manual did not say that before going to the C.N.P. the request should be submitted to anyone below that individual.  It states clearly and unequivocally, and it is contained in the appendix, that such a request to change an M.P.I.N., which Mr. Carmichael’s correspondence was identified numerous times, request to change the M.P.I.N., the manual clearly states that such a request can only be decided by the C.N.P.

Judge Archer:    So you are saying there’s no obligation on anybody except the Chief of Naval Personnel to consider a religious accommodation.

US Attorney:  No, to consider a request to change an M.P.I.N.  Military Personnel Identification Number.  Assuming your Honor that the C.O. should have received and decided the request enroute to the C.N.P., it is harmless error that he didn’t because on page 31 of his brief, Mr. Carmichael abandoned the argument that allegedly faulty procedures led to his not signing the reenlistment contract.  I’d like you to read from Mr. Carmichael’s brief on page 31.  It starts at the bottom of page 30, and I quote, “according to Carmichael’s allegations supporting the first eight causes of action in his complaint, and to the undisputed evidence in administrative record, Carmichael’s decision not to sign his reenlistment contract was based solely on the fact that the contract contained a S.S.N. as his M.P.I.N.

(All Judges look confused, and are mumbling)

Judge Lourie:  I don’t understand.
Judge Archer:  No.
Judge Dyk:  (indiscernible)

US Attorney:  (Almost giggling)  Your Honor, he doesn’t say anywhere that is was based upon supposedly faulty procedure in the denial of a new M.P.I.N.  That’s his argument to the court that it was based upon faulty procedure.  Yet in his brief he says supposedly faulty procedure had no bearing on his decision not to sign his reenlistment contract.

(Judge Dyk, Speaking under his breath, causing the other judges to try to contain a laugh, “That is a creative reading of his brief”

US Attorney:  I’m sorry your Honor, I didn’t hear the question

(Now speaking into the microphone)
Judge Dyk:  I said, “That is a creative reading of this brief.”

US Attorney: It is the plain language contained in their brief and the language below it does not by any means confuse that language.  The trial court properly determined that the Deputy Chief of Naval Personnel correctly denied Mr. Carmichael’s request for a new M.P.I.N.  Executive Order 9397…

Judge Dyk:  Can you tell me have changes in identification numbers been granted by the Chief of Naval Personnel?

US Attorney:  They have your Honor, in a few instances and those are contained in our appendices as well in our brief before the…

Judge Dyk: What types of instances?

US Attorney:  When an individual did not have a Social Security Number then one was obtained for him or her.

Judge Dyk:  Are those the only circumstances in which a change has been allowed?

US Attorney:  There is another one your Honor.  When an individual for some reason has been given two or more Social Security Numbers.  Then one had to be chosen for that individual M.P.I.N.

Judge Dyk:  That’s it?

US Attorney:  That’s it.

Judge Archer:  There’s never been a religious accommodation for a Social Security Number?

US Attorney:  No, there has not your Honor.

Judge Dyk:  Has anyone ever requested one in the past?
US Attorney:  Your Honor, I am not privy to all the requests that have gone to the military branches regarding changing M.P.I.N., I do not know the answer to that.

Judge Dyk:  Do you know whether the Chief of Naval Personnel ever received such a request in the past?

US Attorney:  I do not know.  I do not know the answer to that question.  But here again, the Chief of Naval Personnel was the sole individual to decide this request and he followed the Executive Order signed in 1943 requiring that all federal agencies, not just the military, use exclusively the Social Security Numbers.

Judge Dyk:  Did he address the accommodation question?

US Attorney:  The Chief of Naval Personnel in his denial letter?

Judge Dyk:  Yah.

US Attorney: He might have obliquely, he didn’t explicitly.  I can look at that and see exactly, it’s on page 212 of the appendix.         (long pause)     He did not refer to the fact that Mr. Carmichael wanted a new M.P.I.N. because of religious reasons.  He did not specifically state that or refer to that.  In the meat of, in the body of this denial letter he goes over the law that requires him to deny such a request.  And he also says that, should Mr. Carmichael get the Social Security Number that he evidently wants, all zeros, then he should resubmit the request for a more favorable consideration.

Judge Dyk:  But Mr. Carmichael’s Jan 28th letter requested the new number as a religious accommodation?

US Attorney:  Yes, your Honor, each of Mr. Carmichael’s letters to both his Chief Staff Officer, Commanding Officer and C.N.P. all requested, first and foremost, a new M.P.I.N., they did not request first and foremost a religious accommodation.  And we can refer to that, the first one is November 6, 1996.

Judge Dyk:  But the question I am asking is whether Admiral Marsh was considering the religious accommodation question when he refused the new number.

US Attorney:  It doesn’t appear from the body of the letter whether he did or not, your Honor.  It does not state or go over the factors contained in that.

Judge Archer:  Was the issue before him in the way it was presented?

US Attorney:  Yes it was your Honor.  Every request from Mr. Carmichael to change his M.P.I.N. contained a very elaborate explanation as to why he wanted it changed and that was strictly due to his religion.  So assuming that the C.N.P. had read the request, which he must have done in order to make the denial decision, he must have known that he in fact wanted it for religious reasons.
Judge Lourie:  Thank you Ms. Moore.

US Attorney:  Thank you your Honor.

Judge Lourie:  Mr. Titus I think you’ve got a couple of minutes.

Herb Titus:  Thank you your Honor.  I would like to call your attention to 1730.8, 4., a.
It states this specifically,

Judge Dyk:  Where do we find that?

Herb Titus:  I’m sorry, page 299 in the joint appendix, the very last paragraph.  It says, 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.  That indicates that you cannot by-pass the Commanding Officer where you have a request for a change of a Military Personnel Identification Number.  What should have happened is the Chief of Naval Personnel should have sent this back to the Commanding Officer for the Commanding Officer’s determination.  As the government concedes, there is no way this was a request for a change in the Military Personnel Identification Number divorced from the religious conviction and therefore this was truly a request for religious accommodation.  The KINDRED rule, which we rely upon in our brief indicates, that if the Navy does not follow it’s own procedures, then it’s wrongful conduct and that produces, under the ROSKOS rule a separation which is an involuntary separation.  So we request that this Court reverse and remand this case reversing the decision dismissing this case….

Judge Dyk:  We have a conflict here right?  Between this accommodation policy and what it is regulation regarding changes in identification numbers.

Herb Titus:   Well your Honor, I wouldn’t think that that’s a conflict.  The reason for the religious accommodation policy is to make exceptions to what would otherwise be mandatory.  If it is not mandatory, then you don’t need to get a religious accommodation.  If it’s mandatory to have a Social Security Number as your Military Personnel Identification Number, then what the religious accommodation policy indicates, is that if you come to a religious conviction that you cannot abide by that particular policy because of your religious conviction, then it must be, I mean you can submit a request to the commanding officer, and then only on the basis of military necessity can the Commanding Officer then deny that.  Now it is true that the Commanding Officer can’t make the ultimate decision, but by not submitting it to the Commanding Officer, it violated the rules and regulations of the Navy, and that is what produced the separation in this case and therefore it was involuntary.

Judge Lourie:  Thank you Mr. Titus, for your argument, the case will be taken under submission.
Herb Titus:  Thank you your Honor.