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David Alan Carmichael
May 22, 2005
We had an
important day in court on Thursday, May 19, 2005, in the "David Alan"
Carmichael v. United States case. The case stems from my making a
religious accommodation request to have the Navy Military Personnel
Identification
Number (MPIN) changed from an SS# to a Navy generated “service”
number.
All Hades broke loose against
me when I had the audacity to make the request. I was
subsequently
evicted from the Navy in a fashion that had nothing to do with law,
regulation
or practice.
When this
case started, I was much scorned by the judge and the U.S.
Attorney. The
tide seems to have turned. Now the judge is treating us with
great
respect and showing he is disgusted with the U.S. Attorney tactics,
false
statements and faulty legal standing.
The day in
court seemed to go very well. The U.S.
Attorney spoke first. She said many
things that were clearly contrary to reason. The
judge challenged her statements many times but the
U.S. Attorney
continued to try to support her points that were untenable. Through his facial expressions and body
language, the judge showed that he was confounded by the U.S.
Attorney’s
statements. By the conclusion of the
U.S. Attorney’s argument, the judge appeared to be very dissatisfied,
and even
disgusted, with the Attorney’s statements and answers to his questions.
Herb Titus
then spoke for us. He spoke to the
points made by the U.S. Attorney. He
showed by the Navy’s evidence that the United States could not support
their
burden to prove that they would have taken the same action against me
if they
had followed the laws, regulations and procedures that they violated. Most importantly, at the conclusion of his
argument, Herb pointed out that even with the extremely difficult
burden to
prove the facts, it is a legal impossibility for the Navy to show that
they
would have taken the same action. A few
days before the hearing, we found a case that cited our ruling in the
Appeals
Court. See Carmichael
v. United States, 298 F3d. 1367(Aug 2002). The case we found, Wagner
v. United States, 365 F3d. 1358 (Apr 2004), drove home the point of
the
legal impossibility to prove, after-the-fact, what would have been
decided
during an administrative process that never occurred.
We have for years been citing another case, Kindred v.
United
States, 41 Fed. Cl. 106 (Jun 1998) that also drives home the point.
On the
record and then off the record Judge Futey again pleaded with "both
parties" to seriously consider settlement. He was glaring at the
U.S. Attorney when he warned them that they were facing the possibility
of a
precedent going against them. He
enticed both parties with the motivation of ‘economy’.
In one way,
we are encouraged by the judge’s prodding the U.S. Attorney to settle. It shows that he has seen through their
smoke screen. He knows the facts, and
the issues, and he understands we should have won this case a long time
ago. In another way, we are discouraged by
his
prodding for the U.S. Attorney to settle. It
appears that he is loath to make a finding on the
record against the
government. He is doing everything he
can to protect them for the sake of economy rather than justice. I have no idea what kind of further pressure
will come to settle and what kind of "hush" condition will be tied to
such a settlement.
I prefer to wait
until the Court of Federal Claims ruling to discuss settlement for the
following reasons:
I filed suit,
initially Pro Se (by myself),
with much fear and trembling. Money may
have been the factor that gave the court jurisdiction but it was not
the lust
of it that motivated my action. Justice
and civic duty compelled me.
I toiled from the
beginning to give the Navy the opportunity to reverse their course. After my discharge, I did everything I could
to get them to take action administratively. In
both instances, I was ignored.
We have humbly, and
with great pain, come before the court for judicial remedy. It has been a long, difficult, and tiresome
path. However, what we know as the
truth is finally being seen through the fog.
The court has cited
economy as an incentive to have the parties settle.
Economy for whom? Will it
save money if a precedent is not available for other wronged people to
cite? How much will it cost to have this
issue
litigated again? How much will it cost
to those people who are wronged and do not see hope of a remedy in the
law? How many times will the Navy wrong
people if they perceive that there is nobody but themselves to be
accountable
to? If there is a systemic problem
within the Navy where they have a propensity to ignore the principles
of the
Religious Accommodation instruction, SECNAVINST 1730.8 (now SECNAVINST
1730.8A), how else will the problem be checked? What
will end the knee-jerk tendency of the Navy to take
retribution against those who request a religious accommodation?
The remedy that the
court may decide may not be to my best advantage. Is
this about my advantage? Is economy or
justice the purpose for the courts of law
and the purpose
of this case?
I would that the Navy
take more value to find people who believe they are accountable to God
for
their behavior, and who have a desire to do that which is right rather
than
that which seems expedient for their advantage. The
Navy Regulations are in place to enable service members to do
that which is right and selfless in spite of their
innate
tendency to do that which is wrong and selfish. Is it not our duty (each of us) to do our
part to secure the foundations of our society, especially in our
military? Our servant the government,
including the
military, must be held strictly accountable to the law. Regulations and the laws they are founded
upon are the bastions we have built to keep tyranny at bay.
I have to
consider economy for the sake of my lawyer who has worked many hundreds
of
hours without getting paid. He has
taken many hundreds, if not thousands, of dollars out of his own pocket
to
support the logistical costs of this battle. He has been working
by
faith trusting God to meet his need. A
quick settlement will take care of that. However,
a winning judgment would give us lawyer fees by
the Equal
Access to Justice Act.
I have
expressed my heart here. We know that whatever we do, we must do
by faith
knowing it is the right thing to do despite what "money" might be
offered. We must diligently seek the One who is a rewarder of
those who
diligently seek Him. The One who's eyes are searching to and fro
throughout the whole Earth, diligently looking to show Himself strong
on behalf
of those whose hearts are loyal to him.
David Alan
Carmichael, May 22, 2005