IN THE UNITED STATES COURT OF FEDERAL CLAIMS
DAVID
ALAN CARMICHAEL,
)
)
Plaintiff, )
)
v.
)
No.
99-958C
)
(Judge
Futey)
THE
UNITED STATES,
)
)
Defendant. )
PLAINTIFF’S REPLY
TO
DEFENDANT’S RESPONSE TO
PLAINTIFF’S
CROSS-MOTION FOR
SUMMARY JUDGMENT
ON THE SECOND AND
THIRD
COUNTS OF HIS COMPLAINT
Pursuant
to Rule 5.2(a)of the rules of this Court, and to the Court’s Order
dated
October 5, 2004, Plaintiff replies to Defendant’s Response to
Plaintiff’s
Cross-Motion for Summary Judgment on the Second and Third Counts of his
Complaint.
At the
heart of Defendant’s response to Plaintiff’s Cross-Motion are three
claims,
proof of which is essential to carry its burden to show that the Navy
would
have denied Plaintiff’s religious accommodation request for a change of
his
MPIN, and involuntarily separated Plaintiff from the service, after
having
followed proper procedures.
(1) On
February 11, 1997, the date upon which Rear Admiral Larry Marsh
reviewed
Plaintiff’s religious accommodation request for a change of Plaintiff’s
MPIN,
Mr. Marsh had full and final authority to deny
Plaintiff’s
request. See Defendant’s
Response to Plaintiff’s Cross-Motion for Summary Judgment and Reply to
Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment
(hereinafter
“Df. Rsp.”), pp. 3-8.
(2) On
April 6 and 7, 2004, by Admiral Marsh’s and Captain Joseph Benkert’s
deposition
testimony, the Navy “followed proper procedures” in conducting its
assessment
whether Plaintiff’s request for religious accommodation should have
been
granted under SECNAVINST 1730.8. See
Df. Rsp., 2-3, 5-12, 29-30.
(3) By the
April 2004 deposition testimony of Admiral Marsh and Captain Benkert,
the Navy
has proved that it would have involuntarily separated
Plaintiff from the
Navy in the same manner as it did in March 1997, without regard to the
procedure for separation set forth in SECNAVINST 1730.8(9)(b). See Df. Rsp., pp. 13-32.
In its
opening Brief in Support of its Motion for Summary Judgment, in its
Response
and Reply to Plaintiff’s Cross-Motion, and in its Supplemental
Authority filed
on March 15, 2005, Defendant has sustained none of these claims. Indeed, Defendant has not even addressed the
issue of separation as required by SECNAVINST 1730.8(9)(b).
I.
ON FEBRUARY 11, 1997, ADMIRAL MARSH DID NOT HAVE FULL AND FINAL
AUTHORITY TO DENY PLAINTIFF’S RELIGIOUS ACCOMMODATION REQUEST FOR A
CHANGE IN
HIS MPIN.
A. On February
11,
1997, Rear Admiral Larry Marsh was not “the Acting Deputy Chief of
Naval
Personnel.”
In its
Response to Plaintiff’s Cross-Motion, Defendant has asserted that, on
February
11, 1997 — the date upon which Rear Admiral Marsh first considered
Plaintiff’s
religious accommodation request for a change of his MPIN, Admiral Marsh
was
”the Acting Deputy Chief of Naval Personnel.”
Df. Rsp., p. 4. See also Defendant’s
Motion for Summary Judgment (“Df. Mo. Sum. J.”), p. 16; Defendant’s
Response to
Plaintiff’s Proposed Findings of Uncontroverted Fact (“Df. Resp. Pl.
Facts”),
p. 18; Defendant’s Motion for Leave to File Supplemental Authority
(“Df. Mo.
Supp. Auth.”), p. 1 and 2. The
documentary evidence —
produced by
Defendant in response to Plaintiff’s Request to “produce any document
evidencing the title and office of Rear Admiral Marsh on February 11,
1997” —
proves otherwise.
From June
1994 to July 1997, Admiral Marsh was the Assistant Chief of Naval
Personnel
(“ACNP”) for Personal Readiness and Community Support, PERS-6,” not
“the Acting
Deputy Chief of Naval Personnel.” See
Plaintiff’s Cross-Motion for Summary Judgment (“Pl. Cross-Motion”),
Appendix G, p. 2. Thus, Admiral Marsh
signed the February 1997 memorandum denying Plaintiff’s religious
accommodation
request, “Acting,” thereby indicating that he had signed the
correspondence
only as one “temporarily succeeding” the DCNP while the DCNP was
out-of-town. See U.S. Navy
Regulations (NAVREGS), Ch. 10, Sec. 2, Art.
1026(c). Indeed, Defendant has
admitted that Admiral Marsh acted in the DCNP’s absence solely because
Admiral
Marsh, as “the next ranking member of the CNP’s staff[,] would assume
the
position of DCNP in that individual’s absence.” Df.
Rsp. Pl. Facts, p. 20.
B. As One
Acting in the “Stead” of the DCNP Who Was Away for the Day, Admiral
Marsh Did
Not Have Authority to Act On Plaintiff’s
Religious Accommodation Request for a Change of MPIN.
As one who
“temporarily succeeded” to the “position” of the DCNP while the latter
was away
for the day, Admiral Marsh did not have the “full authority” of that
office,
much less the office of the CNP, as Defendant has assumed in its
Response. See
Df. Resp., pp. 5. Nor, as Defendant
has contended in its Motion for Leave to File Supplemental Authority,
did
BUPERS Instruction 5400.6E confer upon ACNP Marsh “full” authority to
act in
the place of the DCNP upon Plaintiff’s religious accommodation request
for a
change in his MPIN. See Df. Mo. Supp. Auth., pp. 2. By its
plain
language, BUPERS Instruction 5400.6E states that the Deputy Chief of
Naval
Personnel “[a]cts with full authority” only “in the absence
of
[the Chief of Naval Personnel].” See
Id., App., pp. 3, 7 (Emphasis added).
While Admiral Marsh testified that the DCNP was absent on
February 11,
1997, he did not testify that the CNP was also absent, so the provision
of
BUPERS Instruction 5400.6E upon which Defendant has relied is clearly
inapposite. Even if BUPERS
Instruction
5400.6E could be construed to mean that the DCNP is the CNP’s alter
ego, on
February 11, 1997, Admiral Marsh was neither the DCNP, nor the Acting
DCNP, but
rather the Assistant Chief for Personnel Readiness and Community
Support, and
thus, not within the reach of BUPERS Instruction 5400.6E, as the
organizational
chart appended to Defendant’s Motion clearly shows.
See Df. Mo. Supp. Auth., App. 6. Instead,
for Admiral Marsh to climb into the organizational box
containing the both “CHNAVPERS” and “DEPCHNAVPERS” (id.) he must
do so
by some other regulation.
To be
sure, Navy regulations do provide that one, like Admiral Marsh, may
step into
the shoes of a temporarily absent DCNP to handle “routine” and other
like
matters “in the usual manner.” See NAVREGS,
Ch. 10, Sec. 2, Art. 1026 (1) and (2). By his own testimony, however,
Admiral
Marsh conceded that Plaintiff’s religious accommodation request for a
change in
his MPIN was not routine. Rather, he
testified that, on February 11, 1997, he was not even aware of
SECNAVINST
1730.8 and its five-factor formula (Pl. Cross-Motion, Marsh Apr. 7 Tr.
108-09,
App. E, E-28)), indicating thereby that such a request was not a matter
that
regularly came before him either in his capacity as ACNP for Personal
Readiness
and Community Affairs or on any previous occasion when he substituted
for the
DCNP. See also
Pl. Cross-Motion,
Marsh Apr. 7 Tr. 31, App. E, E-9.
Also,
Admiral Marsh testified that he did not handle Plaintiff’s request “in
the
usual manner,” in that, at his deposition, he admitted that he assessed
Plaintiff’s religious accommodation request without the benefit of
PERS-3 staff
review which was the “usual” practice. See Pl Cross-Motion,
pp. 29-30
and testimony cited therein. But the
absence of the usual staff review did not deter Admiral Marsh from
testifying
that he would have denied Plaintiff’s request.
In sum,
neither requests for religious accommodation, nor requests
for changes in a service member’s MPIN were “routine”
matters in the office of the Chief of Naval Personnel.
Nor did Admiral Marsh handle Plaintiff’s
request “in the usual manner.”
Therefore, Defendant has not carried its burden of proving that
Admiral
Marsh — in his capacity as a temporary substitute for the DCNP who was
away
from the office for a day — either had authority on February 11, 1997,
to
address Plaintiff’s religious accommodation request for a change of his
MPIN,
or if he did, that he exercised his authority in accordance with Navy
regulations. See NAVREGS, Ch.
10, Sec. 2, Art. 1026(2).
C. Admiral
Marsh’s Assessment of Plaintiff’s Religious Accommodation Request for a
Change
of MPIN Could Not Have Been Final.
Defendant has not
only
mistakenly assumed that BUPERS Instruction 5400.6E conferred full
authority of
the CNP upon Admiral Marsh, but it has also mistakenly assumed
that
Admiral Marsh’s decision to deny Plaintiff’s request was final,
binding
even upon the Chief of Naval Personnel.
First, Defendant
has
erroneously argued that Admiral Marsh had such final authority because
he
“ha[d] delegated authority from the Chief of Naval Personnel to make final
Bureau
of Naval Personnel decisions in all cases falling under the purview
of his
department.” Df. Rsp., pp. 4-5
(emphasis added). Admiral Marsh
admitted at his deposition, however, that, as ACNP for Personal
Readiness and
Community Support, he had no authority over any request for a change of
a
service member’s MPIN. Pl. Cross-Motion, Marsh Tr., p. 31, App. E, E-9.
See
also Pl. Cross-Motion, p. 40.
Second, as
pointed out in Plaintiff’s Cross-Motion, MILPERSMAN 4610100.1 expressly
authorizes only the CNP to change a service member’s MPIN.
Pl. Cross-Motion, p. 41. As is also
demonstrated in his Cross-Motion,
BUPERS 5000.27.4040.2.b. requires that any communication of any
decision
denying or granting a change of a service member’s MPIN must be signed
by the
CNP.
Third,
even if BUPERS Instruction 5400.6E could be construed to dispense with
this
signature requirement when the decision to deny such a change is made
by the
DCNP, Acting DCNP — or anyone acting in the place of the DCNP or Acting
DCNP,
as Admiral Marsh would have done in this case — the CNP would not
thereby have
been relieved of his ultimate responsibility to make the decision
personally. NAVREGS, Ch. 10, Sec. 2,
Art. 1022 states that “[t]he delegation of authority ... by a person in
the
naval service shall not relieve such person from any responsibility
imposed
upon him or her. He or she shall
ensure that the delegated authority is properly
exercised
....” (Emphasis added).
As Admiral Marsh testified, in making any
decision on Plaintiff’s religious accommodation request to change his
MPIN, he
“would have abided by ... instruction from higher authority.” See Pl. Cross-Motion, Marsh Apr. 7
Tr., pp. 63 (beginning line 16) - 65 (ending with line 18). According to MILPERSMAN 4610100.1, that
“higher authority” would clearly have included the CNP, the only person
expressly authorized to change an MPIN.
And, according to NAVREGS, Ch. 10, Sec. 2, Art. 1022, the CNP
could not
have been “relieve[d]” of his responsibility under MILPERSMAN 4610100.1
by
“delegation of [that] authority,” to Admiral Marsh, but would have been
obliged
to “ensure” that such authority was “properly exercised.”
Notwithstanding
the CNP’s nondelegable duty to ensure the proper application of
MILPERSMAN
4610100.1 to Plaintiff’s request, Defendant has maintained that
Plaintiff could
not have taken an appeal from Admiral Marsh’s denial of his request to the CNP because Plaintiff “cannot
point to a Navy regulation or instruction that allows him to appeal the
decision of ... the CNP ... delegate under MILPERSMAN 4610100.” Df. Rsp., p.8. Again,
Defendant is mistaken.
NAVREGS,
Ch. 11, Sec. 5, Art. 1150 provides that “any person in the naval
service
[who] considers himself wronged by any act [or] decision of a person
who is
superior in rank or command ... may report the wrong to the proper
authority
for redress....” And that is precisely
what Plaintiff attempted to do in March 1997.
On March 3, 1997, he submitted a memorandum to Admiral Marsh for
reconsideration. AR 224-25.
Then, on March 4, 1997, in compliance with
the procedures set forth in Section 1150, Plaintiff submitted an appeal
to the
CNP from the Marsh denial via his Officer-in-Charge (AR 243) who, in
turn,
refused to forward it on the ground that “Chiefs do not argue with
admirals.” AR 042-043.
As was the
case then, so it is now. Although the
Administrative Record documents that Plaintiff attempted to appeal
Admiral
Marsh’s February 1997 denial to the CNP, the Navy did not then afford,
and has
not at any time thereafter afforded, Plaintiff access to the CNP to
review
Admiral Marsh’s decision had he treated Plaintiff’s request for a
change of his
MPIN as a religious accommodation request under SECNAVINST 1730.8. This undisputed fact alone demonstrates that
the Navy has failed to carry its burden that it would have denied
Plaintiff’s
request “after following proper procedures,” having failed to afford
Plaintiff
any right of appeal — as provided for in NAVREGS, Ch. 11, Sec. 5, Art.
1150 —
from Admiral Marsh’s “decision” that he would have denied Plaintiff’s
request
for a change of MPIN after applying the five-factors set forth in
SECNAVINST
1730.8(9)(a).
II.
DEFENDANT CANNOT SUSTAIN ITS BURDEN THAT IT FOLLOWED “PROPER
PROCEDURES” SOLELY ON THE GROUNDS OF CAPTAIN BENKERT’S AND ADMIRAL
MARSH’S
APRIL 2004 DEPOSITION TESTIMONY.
According to
Defendant’s
interpretation of the issue before this Court, the Navy has met its
burden of
“following proper procedures” solely by “the testimony of Captain
Benkert and
Admiral Marsh” that they would have denied Plaintiff’s request for a
religious
accommodation by applying the five factors set forth in Subsection 9(a)
of
SECNAVINST 1730.8. See Df. Rsp.,
pp. 1-2, 3, 9-12. Indeed, Defendant has
asserted that the Court of Appeals for the Federal Circuit has “presupposed”
that, if Captain Benkert and Admiral Marsh would have applied the five
factors
set forth by SECNAVINST 1730.8(9)(a), then the Navy would have followed
all of
the procedures set forth in SECNAVINST 1730.8.
See Df. Rsp., pp. 29-30.
This contention is patently false.
In stating
the issue now before this Court, the Court of Appeals did not presuppose
that the only procedure that the Navy need follow was for Captain
Benkert and
Admiral Marsh to apply the five-factor formula in SECNAVINST
1730.8(9)(a).
Rather, it instructed this Court to determine “whether the Navy can
show that
it would have taken the same action after following proper
procedures,
without any express language limiting those procedures to SECNAVINST
1730.8(9)(a). Carmichael v.
United States, 298 F. 3d at 1376 (emphasis added).
To meet its burden, then, the Navy must
show that any decision that it claimed that it would have made, must,
in fact,
have been made “after following proper procedures,”
not
just whether Captain Benkert and Admiral Marsh applied the
five-factors of
SECNAVINST 1730.8(9)(a) to Plaintiff’s religious accommodation request.
Not only
is there no language in the Court of Appeal’s statement of the issue to
limit
this Court’s procedural inquiry to SECNAVINST 1730.8(9)(a), there is
language
in the opinion indicating that the Navy must show compliance with all
of
the procedures set forth in SECNAVINST
1730.8, including all general Navy procedures related to the
application of
SECNAVINST 1730.8 and MILPERSMAN 4610100.1.
See Carmichael v. United States, 298 F. 3d 1367, 1373-76
(Fed.
Cir. 2002).
The Court
of Appeals took special note of subsection (4) of SECNAVINST 1730.8,
including
its statements: (1) favoring accommodation when a service member’s
request
would not have an “adverse impact on military readiness, individual or
unit
readiness, unit cohesion, health, safety or discipline” (id. at
1372;
(2) deferring to the “determination if
military necessity” by the “commanding officer” of the requesting
service
member; and (3) providing that “[t]he guidelines in this instruction
shall
be used in the exercise of command discretion concerning the
accommodation
of religious practices.” Id.(emphasis added).
In
determining whether accommodation of Plaintiff’s request that he be
assigned a
number other than a SSN would have an the adverse impact spelled out in
SECNAVINST
1730.8(4), both Captain Benkert and Admiral Marsh testified that they
would
have sought advice from their staffs and others before making any
decision
under the five-factor formula. See Pl.
Cross-Motion, pp. 29-30 and Benk. Apr. 6 Tr., pp. 54-56, 58, 64, 68-69,
72-73,
95-96, App. C, pp. C-15-C-19, C-25; Benk. Apr. 7 Tr., pp. 20-23, 27-30,
39-40,
App. D., C-6, D-9, D-11; Marsh Apr. 7 Tr., pp. 79, 106.
Yet neither followed the usual procedure of
seeking and obtaining any staff input before testifying how they would
have
assessed Plaintiff’s request. Instead,
both made their assessments of “military necessity” without benefit of
the
usual staff reviews!
Moreover,
Admiral Marsh testified how he would have applied SECNAVINST
1730.8(9)(a)’s
five factors without having received any input from Captain
Benkert,
Plaintiff’s commanding officer, even though the Court of Appeals,
citing
SECNAVINST 1730.8(4)(a), concluded that “the Navy determined that the
generally
appropriate level of command for approval for requests for religious
accommodation is the commander or commanding officer.” See Carmichael
v. United States, 298 F.3d at 1373.
Instead of following this procedure, Admiral Marsh testified how
he
would have applied the five factors without knowledge of how
Captain
Benkert would have applied them, a process that was specifically
rejected by
the Court of Appeals. See id. at
1375.
Not only
did Admiral Marsh make his decision without knowledge of Captain
Benkert’s
assessment, he testified that Captain Benkert’s appraisal would not
have made
any difference in his assessment, despite: (1) the express provision in
SECNAVINST 1730.8(4)(a) that “the determination of [military]
necessity” in
relation to an accommodation request “rests entirely with the
commanding
officer” (emphasis added) and (2) the express provision in SECNAVINST
1730.8(9)
that the five-factor provision of subsection (9)(a) is specifically
addressed
to “commanders and commanding officers,” not to their superiors.
Yet,
Admiral Marsh testified that, even though he was not Plaintiff’s
commanding
officer, he could not think of anything that Plaintiff’s commanding
officer
would have done that would have changed his application of the
five-factor
formula to Plaintiff’s religious accommodation request.
Such a cavalier attitude towards the
commanding officer directly contradicts the above-quoted language of
SECNAVINST
1730.8(4)(a) and (9). See also Carmichael v. United States, 298
F.3d at
1375.
Indeed,
there is nothing in the text of SECNAVINST 1730.8 to indicate that
Admiral
Marsh, or anyone else in the office of the CNP, has any authority
whatsoever to
make any discretionary decision applying the five-factor formula. However, Defendant has attempted to shoehorn
Admiral Marsh into SECNAVINST 1730.8(9) by claiming that the Court of
Appeals
“held” that the “CNP” had “authority to decide religious accommodation
requests.” Df.
Rsp., p. 5.
But the very passage relied upon by Defendant belies this claim,
in that
the role of the CNP is stated in the court of appeals opinion as an
“even if”
hypothetical, following the court’s initial finding that subsection (4)
indicates that the initial decision is for the commanding officer. See Carmichael, 298 F.3d at
1375.
Not only did the
Navy ignore
the procedures and policies of SECNAVINST 1730.8(4)(a), but it also
ignored
Subsection 4(b) which — as the Court of Appeals pointed out on page
1373 of its
opinion — states that “the guidelines in this instruction,” not
just the
five factors in subsection (9)(a) of SECNAVINST 1730.8, “shall be
used
in the exercise of command discretion concerning the accommodation of
religious
practices.” As the Court of Appeals
expressly noted, subsection (4)(b) would require the Navy, “where
requests for
accommodation cannot be granted, [to take] administrative action
against a
member, including but not limited to reassignment, reclassification or
separation,” as provided under SECNAVINST 1730.8(9)(b). Carmichael,
298
F.3d at 1373.
To be
sure, Defendant has attempted to refute Plaintiff’s contention that the
Navy
failed to show that it complied with SECNAVINST 1730.8(9)(b),
contending that
Plaintiff did not “request” a reassignment or reclassification and that
Captain
Benkert did not know of any possible reassignment or reclassification
and had
no duty to find out. See Df.
Rsp., pp. 14-15, 28-29. But SECNAVINST
1730.8(9)(b) does not require that a service member request a
reassignment or a
reclassification. Nor does that
subsection excuse Captain Benkert from compliance because he did not
know of
any possible reassignment or reclassification.
Rather, according to SECNAVINST 1730.8(4(b), it was Captain
Benkert’s
duty to “use” the guideline in subsection (9)(b) in the exercise of his
“command discretion concerning [Plaintiff’s request] for accommodation
of [his]
religious practices.” See Carmichael v. United States,
298 F.3d
at 1373.
Additionally,
as pointed out in Plaintiff’s Cross-Motion, there are several other
procedures
contained in SECNAVINST 1730.8 that apply to request for religious
accommodation, including: (1) SECNAVINST 1730.8(10)(a) which obligates
the
Chief of Naval Operations (“CNO”) “to provide the statement of [Navy]
policy on
accommodation of individual religious practices and military
requirements in
paragraphs 4 and 4a of this instruction to applicants for ...
enlistment and
reenlistment, and require a signature acknowledging [Navy] policy”; (2)
SECNAVINST 1730.8(10)(b) requiring the CNO to have “incorporate[d]
relevant
materials on religious traditions, practices and policies, this
instruction and
[Department of Defense policy], in curricula for command, judge
advocate,
chaplain, and similar courses and orientations”; and (3) SECNAVINST
1730.8(11) and
(11)(a) which provide that the “ASN (M&RA) is responsible for
overall
policy control and program execution” and “[t]he CNO ...[is]
responsible for
implementing the policies and procedures in this instruction.”
Significantly,
Defendant has made no effort in its Response to refute the Plaintiff’s
claim
that the Navy has failed to show that it complied with the mandatory
procedures
set forth in SECNAVINST 1730.8(10)(a) or (b). See Pl.
Cross-Motion, pp.
37-38. Defendant has, however,
attempted to refute Plaintiff’s contention that SECNAVINST 1730.8(11)
and
(11)(a) support his claim that he would have had a right of appeal to
the ASN
(M&RA) and CNO from any adverse decision on his religious
accommodation
request. Compare Pl.
Cross-Motion, pp. 35-36 with Df. Rsp., pp. 7-8, 15-16. In support of its contention, Defendant has
stated that: (1) Plaintiff “cannot point to a Navy regulation or
instruction
that allows him to appeal the decision of either his commanding officer
... or
CNP or his delegate under SECNAVINST 1730.8" (id. at 7-8); (2)
“the
Federal Circuit [did not] acknowledge an authority higher than the CNP
or his
delegate to decide such a request, [but instead] “recognized the
inconsistency
between SECNAVINST 1730.8 and MILPERSMAN 4610100.1” (id. at 8);
(3)
“[n]either [SECNAVINST 1730.8 nor MILPERSMAN 4610100.1 provides for a
right to
appeal an adverse decision” (id.);
(4) “[n]either [regulation] allows the CNO to decide a religious
accommodation request or a request to change a MPIN” (id.); (5)
Plaintiff
confuses SECNAVINST 1730.8's requirement that the CNO implement the
policies
and procedures in that instruction with decision-making capacity to
address a
request” (id. at 8, n. 2) and (6) Captain Benkert “stated that
he did
not know whether an adverse decision on a religious accommodation
request could
be appealed to the CNO.” Id. at
15-16.
Conspicuously
absent from this itemized list is Admiral Marsh’s testimony, produced
in
response to Plaintiff’s counsel’s questions concerning the meaning of
SECNAVINST
1730.8(11)(a):
Q. [W]hat would
be the relationship of the chief of
naval operations to the chief of naval personnel with regard to the
administration of [the religious accommodation] policy?
A. [T]he chief of
naval personnel works for chief of
naval operations.
Q.
So the
chief of naval operations would have the ultimate say so?
A.
Mm-hmm
(indicating an affirmative).
Q.
Is that
what is reflected in 11-A?
A.
It
does. It says the CNO ...[is]
responsible for implementing the policy and procedure of this
instruction. So the chain of command
[goes] from the
secretary of the navy ... down from the chief of naval operations ...
and then
he delegates ... it down....
Q. ...[W]ith
respect to the administration of this
policy, [a]s I understand your testimony, the chief of naval operations
is over
the chief of naval personnel, is that correct?
A.
That’s
correct.
...
Q. [I]f you would
have received a review of a
religious accommodation in relationship to a change of [MPIN], would
you have
consulted the CNO?
A.
There’s
no requirement. This goes back to the
delegation of authority we were talking about earlier.
[S]uch decisions get delegated down to be
made by the -- we’re all part of the CNO staff....
Q. [T]he CNO had
authority to reverse that decision,
wouldn’t he?
A.
He would,
yes, he would.
[Pl.
Cross-Motion, Marsh Apr. 7 Tr., pp. 81
(beginning with line 21) - 83 (ending with line 2); and pp. 85,
beginning with
line 20) - 86 (ending with line 9); App. E, E-21 - 23].
In sum,
Defendant has not shown that, by applying the five-factor formula of
SECNAVINST
1730.8(9), Captain Benkert’s and Admiral Marsh’s testimony established
that the
Navy — after following proper procedures — would have taken
the same
action on Plaintiff’s religious accommodation request that it did in
February
and March of 1997, having not only failed to follow the procedures
contained
within SECNAVINST 1730.8, having denied to Plaintiff any opportunity of
appeal
as provided in NAVREGS, Ch. 10. Sec. 2, Art. 1022 and Ch. 11, Sec. 5,
Art.
1150.
III.
DEFENDANT HAS NOT SHOWN THAT IT WOULD HAVE “TAKEN THE SAME
ACTION” SEPARATING PLAINTIFF FROM THE NAVY PRIOR TO THE END OF HIS
OBLIGATED
SERVICE.
As noted above,
the issue
before this Court is not just whether the Navy, applying the
five-factors of
SECNAVINST 1730.8(9)(a) would have granted his religious accommodation
request
for a change of MPIN, but whether the Navy would also have taken the
“same
action,” after denial of that request, and separating him from the Navy
prior
to the end of his obligated service in the same manner in which it did
in March
1997. It is undisputed that Plaintiff’s
separation and discharge prior to the end of his obligated service was
occasioned
by the denial of his request for a change of MPIN, and that such
separation and
discharge violated Plaintiff’s “firm right” to an extension of
enlistment to at
least January 17, 1999. See Opinion
and Order dated October 7, 2003, p. 13, attached to Pl. Cross-Motion,
App. B,
p. B-13. There is nothing in SECNAVINST
1730.8 indicating that Plaintiff’s right to an extension of enlistment
would
have been automatically vitiated by a denial of Plaintiff’s religious
accommodation request; nor is there anything in SECNAVINST 1730.8
mandating
that, upon denial of Plaintiff’s request, Plaintiff would automatically
be
separated from the Navy.
To the
contrary, SECNAVINST 1730.8(9)(b) provides that “[w]hen requests for
accommodation are not in the best interest of the unit but continued
tension
between the unit’s requirements and the individual’s religious beliefs
is
apparent, administrative action is authorized.” The
subsection further states that “[a]dministrative action may
include, but is not limited to, reassignment, reclassification,
or
separation consistent with SecNav and service regulations”
(emphasis
added).
Neither
Captain Benkert nor Admiral Marsh testified that Plaintiff would have
been
separated from the service, much less testified how Plaintiff could
have been
separated from the service on March 17,1997 “consistent with SecNav and
service
regulations,” including the obligation of the Navy to honor Plaintiff’s
firm
right to an extension of enlistment to January 17, 1999.
Nor did either testify that he had
determined that there was no “reclassification” or “reassignment” that
would
have accommodated Plaintiff’s religious accommodation request. To the
contrary,
Defendant, in its Response, faulted Plaintiff for having failed to
“request” a
“reassignment” or a “reclassification,” thereby excusing Captain
Benkert from
any obligation to ascertain whether such a “reassignment” or
“reclassification”
existed. See Df. Rsp., pp.
14-15.
In sum,
the Navy has failed to show that it would have taken the same action
and
separated Plaintiff from the Navy even if it would have determined that
Plaintiff’s request for a change of MPIN would have been denied under
SECNAVINST 1730.8(9)(a).
CONCLUSION
For the
reasons stated herein, and in Plaintiff’s Cross-Motion, Plaintiff’s
Motion for
Summary Judgment on Counts II and III of his Complaint should be
granted.
Respectfully
submitted,
HERBERT
WILLIAM TITUS
TITUS LAW GROUP
Attorney for Plaintiff
David Alan Carmichael
CERTIFICATE OF
SERVICE BY
MAIL
I hereby certify under penalty of perjury
that on this 28th day of March 2005, I caused to be place in the United
States
mail (first-class, postage prepaid) a true and correct copy of the
foregoing
Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Cross-Motion
for
Summary Judgment on the Second and Third Counts of his Complaint,
addressed as
follows: Lauren S. Moore, Esq., Commercial Litigation Branch, Civil
Division,
U.S. Department of Justice, Attn: Classification Unit, 8th Floor, 1100
L
Street, N.W., Washington, D.C. 20530.
Herbert
William Titus