IN THE UNITED STATES COURT OF FEDERAL CLAIMS

Courtroom 5, Room 505
Court of Federal Claims
717 Madison Place, N.W.
Washington, D.C. 20005

Thursday
October 12, 2000
The parties met, pursuant to the notice of the
Judge, at 2:32 p.m.

BEFORE: HON. BOHDAN A. FUTEY
Judge

APPEARANCES:
For the Plaintiff:
HERBERT W. TITUS, Esquire
Troy A. Titus, P.C.
5221 Indian River Road
Virginia Beach, Virginia 23464
(757) 467-0616

For the Defendant:
LAUREN S. MOORE, Esquire
U.S. Department of Justice
Civil Division
Commercial Litigation Branch
1100 L Street, N.W., Room 10108
Washington, D.C. 20530
(202) 616-0333

APPEARANCES (continued):
For the Agency:
EUGENE H. ROBINSON, JR.
Major, United States Marine Corps
Department of the Navy
Office of the Judge Advocate General
General Litigation Division
1322 Patterson Avenue, S.E., Suite 3000
Washington Navy Yard
Washington, D.C. 20374-5066
(202) 685-5452
 
 

P R O C E E D I N G S

(2:32 p.m.)

THE CLERK: All rise. The United States Court of Federal Claims is now in session, The Honorable Bohdan A. Futey presiding.

THE COURT: Good afternoon.

ALL: Good afternoon.

THE COURT: Please be seated. This is the matter of David Alan Carmichael v. The United States, and it's Case Number 99-958C. We are here for the purpose of hearing oral argument on the government's motion to dismiss and Plaintiff's cross-motion for partial summary judgment.

Present in the courtroom we have, representing the Plaintiff, Mr. Herbert Titus.

MR. TITUS: That's correct, Your Honor.

THE COURT: And would you introduce the gentleman sitting at your table?

MR. TITUS: Yes. This is my client, Mr. David Carmichael.

THE COURT: Okay. And representing the government, we have Ms. Lauren Moore.

MS. MOORE: Yes, Your Honor.

THE COURT: And would you introduce the gentleman sitting at your table?

MS. MOORE: Yes. With me I have Major Eugene Robinson, representing the Department of the Navy.

THE COURT: All right. Very good. Ms. Moore, this is your motion to dismiss, so you have the floor.

MS. MOORE: Thank you, Your Honor. May it please the Court, we respectfully request that the Court dismiss the complaint for lack of jurisdiction or, in the alternative, grant judgment to Defendant based upon the administrative record.

The Court lacks jurisdiction to review Plaintiff's challenge to its military --

THE COURT: When you state that, you know, motion to dismiss or, in the alternative, summary judgment on the administrative record, in your motion for judgment on the administrative record you only address Plaintiff's third cause of action. Is that the jurisdiction aspect?

MS. MOORE: The jurisdictional aspect?

THE COURT: Yes. Plaintiff has more than one cause of action in his complaint. Right?

MS. MOORE: Yes, he does, yes.

THE COURT: And in your motion for judgment on the administrative record it seems that you only address Plaintiff's third cause of action.

MS. MOORE: Our motion for judgment on the administrative record was to encompass all of Plaintiff's complaint, and Plaintiff cross-moved based upon his third cause of action only.

THE COURT: Only. Okay.

MS. MOORE: Exactly, Your Honor.

THE COURT: So that's why a cross-motion for partial summary judgment.

MS. MOORE: On behalf of Plaintiff.

THE COURT: Very good.

MS. MOORE: Yes.

THE COURT: All right. Please continue.

MS. MOORE: The Court lacks jurisdiction to review Plaintiff's challenge to his military discharge because Mr. Carmichael's separation from the Navy was voluntary. It is well settled that this Court lacks jurisdiction to review such a challenge. A presumption of voluntariness may be rebutted by evidence establishing that a plaintiff did not exercise free choice in a decision to leave the armed forces.

THE COURT: Now, that's true. One of the factors that can rebut the presumption of voluntariness is coercion. Right?

MS. MOORE: Exactly, Your Honor.

THE COURT: All right. Was the Plaintiff coerced into separating from the Navy because it would not accommodate his request for a new military personnel identification number?

MS. MOORE: No, he was not, Your Honor. He had the choice to either adhere to Navy regulations and supply his social security number on his reenlistment contract or to not include his -- I'll call it his "SSN," if that's all right with the Court -- or to not supply it on his reenlistment contract and thereby not reenlist with the Navy. This was not coercion.

In fact, Navy representatives at the time he refused to provide his social security number informed him that should he choose not to, the reenlistment contract or anything signed by him would not be valid. So they were very forthright with him in telling him that he must provide his SSN in order to reenlist.

THE COURT: Did he have to decide on the spot, or did he have some time in which to decide?

MS. MOORE: He had plenty of time. His request for a new MPIN, which is military personnel identification number -- again, I'll abbreviate, if that's okay with the Court --

THE COURT: That's fine.

MS. MOORE: -- that request was denied February 11th, or he received the denial perhaps in early March, but it was denied on February 11, and he had ample time to determine whether or not to accept the denial and supply his SSN or not accept it and refuse to reenlist. It was his choice.

THE COURT: Was the plaintiff asking for a religious accommodation -- wasn't this a religious- accommodation request or not?

MS. MOORE: First and foremost, Your Honor, it was a request for a new MPIN, military personnel identification number. His letter, dated November 6, 1996, was to the chief of naval personnel, who, by Navy regulation, was the only individual who could grant such a request.

Perhaps the reason behind requesting a new MPIN was due to religious preference. That does not change the fact that by Navy regulation only the chief of naval personnel can decide such a request. That request was submitted and received by the chief of naval personnel and denied by his deputy on February 11, '97.

THE COURT: Are there any forms for this purpose, for the purpose of religious accommodation? Are there special forms that they have to submit, or do they just write a letter requesting such a religious accommodation?

MS. MOORE: Your Honor, I'm not familiar with any particular form that a service member would have to use in order to request something like that. These were letters by Mr. Carmichael. And the government does not allege that the letters were the incorrect format, by any means. The letters were sufficient, and they did reach the chief of naval personnel, who decided -- what this case is -- the controlling legal issue in this case is that the Plaintiffs allege that other Navy instructions or regulations should have come into play instead of the one that was applied.

Specifically, Plaintiff alleges that a DoD directive and a Secretary of Navy instruction should have required by their language that this chief of naval personnel look at five subjective factors in order to determine whether or not the request of change of MPIN could be accommodated.

Now, that is specifically they are saying that DoD Directive 1300 and Secretary of Navy Instruction 1730 should have been applied, and both of those required looking at five subjective factors to determine whether or not his request should be accommodated. That's in the appendix, for the Court's convenience, at pages -- the Secretary of Navy instruction is at page 103 of the appendix. That's 1730.8. The DoD directive is --

THE COURT: And that's part of your brief, Ms. Moore?

MS. MOORE: Well, it's part of the administrative record, Your Honor, so we had no discretion what to put into that. That's just part of the record that was before the board. The DoD directive is --

THE COURT: I'm very pleased to hear that we have no discretion with anything that's part of the administrative record.

MS. MOORE: We don't tamper with the administrative records.

THE COURT: I don't hear that in some of the other cases, but that's all right.

MS. MOORE: Well, I am supplied the administrative record, so I don't touch it other than to look at the numbers and put them in the brief.

THE COURT: Very good.

MS. MOORE: The DoD directive is contained in the appendix to Plaintiff's brief in opposition to our motion to dismiss. That's an easy way to find it. Anyway, both of those documents do require a five-part analysis to determine whether or not a request for religious accommodation should be granted.

Here, there is also another Navy regulation. It's called Naval Personnel Manual, Military Personnel Manual, and that's entitled "A Request for Change of MPIN," which is what Mr. Carmichael listed in --

THE COURT: What you're describing right now is exactly what is needed in the Navy for a general request to become a religious-accommodation request.

MS. MOORE: I'm sorry, Your Honor. I missed --

THE COURT: In other words, the format that one has to follow in order to obtain a religious-accommodation request; is that what you're describing right now?

MS. MOORE: No. These regulations dictate what must be considered in making a decision whether or not to grant a religious-accommodation request. I don't know that they specify a format.

THE COURT: Well, what do you have to do in order to obtain a religious-accommodation request?

MS. MOORE: I suppose, submit a letter. I do not know of a format, unless my agency counsel knows of some specific form.

Here, I would like to point the Court to Plaintiff's submissions during this case or before the case. Plaintiff submitted, and this is on page 212 of the appendix, in Volume 3, Plaintiff submitted, on page 212 -- it's a cover memo. It says: "From Staff Sergeant Carmichael to Commander, Destroyer Squadron 32 via Chief Staff Officer. Subject: Request for change of military identification number."

He has four enclosures listed there. The first is a letter to the chief of naval personnel, and then three others citing the Military Personnel Manual articles that are at issue in this case.

If you turn to the next page, 213, this is a letter from Mr. Carmichael to the chief of naval personnel. This is the top individual for Navy personnel. And he is asking, again, for a request for change of military identification number. In the body of that letter he explains why he wants a new MPIN, and that's really just reasons. Now --

THE COURT: But he is not calling this a "religious-accommodation request."

MS. MOORE: He is not. That's true. Even more important than that, what he calls it is not so important as the fact that there is a whole separate regulation for request for changes of MPIN, and that's the Naval Military Personnel Manual article. The article number is 4610100.

THE COURT: Again, 46 --

MS. MOORE: 4610100. And that is in the appendix as well, Volume 1, page 96. And that's entitled "Military Personnel Identification Number." And it says, in part: "The military personnel identification number assigned to each member upon first entering the Navy shall be the social security number shown on the numbers OA-702, social security account number card. A military personnel identification number may be changed only upon approval by the chief of naval personnel."

Below that it says, in paragraph three: "If an individual does not possess a social security account number card at the time of application for entering into the Navy, the Navy recruiter shall assist in obtaining a SSN per the Navy Recruiting Manual."

Thus, there is a whole separate provision that governs requests for changes in the MPIN, regardless of the reason why. It doesn't address why somebody might want it. It strictly says, if you want a change in your MPIN, only the CNP may grant that.

THE COURT: And you are saying that that procedure was not followed in this case.

MS. MOORE: It was followed.

THE COURT: It was followed.

MS. MOORE: It was followed. Not only did Mr. Carmichael ask the chief of naval personnel to look at his request; the chief of naval personnel's deputy looked at it and denied it. There is no procedural flaw at all in this case.

Now, what Plaintiff is saying in their papers is that there was a procedural flaw.

THE COURT: It said that actually the commanding officer has to make that decision.

MS. MOORE: Yes. The reason they are saying that is because, despite the contemporaneous documentation in which Mr. Carmichael asked the CNP, chief of naval personnel, to look at his request, in litigation Plaintiff has changed his position to say, oh, never mind about the CNP. Forget about this regulation. It should have been Mr. Carmichael's immediate commander under the DoD Directive 1300 that I just mentioned and Navy Instruction 1730.8. That's a whole different individual lower than the CNP that would decide a request for religious accommodation.

Our position is that not only did Mr. Carmichael send his submissions to the CNP mentioning the article that requires the CNP to decide this request, but the subject headings of his letter are a request for change of military identification number. And the CNP or his deputy, whomever, the deputy had authority to decide on the CNP's behalf, decided based on existing law. That person did not employ any subjective criteria.

They decided and denied it based upon the existing law, which there's five legal criteria that required denial of his request. The first is there is an executive order in place dated in 1943, signed by Franklin Roosevelt, that requires federal agencies to utilize exclusively social security numbers when they need to establish numerical systems for large amounts of employees.

Secondly, effective January 1, 1972, the social security number became the sole MPIN for all naval personnel. That was Secretary of Navy Note 1070. That's in the record at 94 and 95. And that required that the SSN be used as the identification number on all forms, ID cards, documentation, and other communication pertaining to naval personnel.

Third, the Naval Personnel Manual, Article 1050150, at page 102 of the record, requires use of the SSN on enlistment agreements. Here, we are dealing with an enlistment agreement or an enlistment contract. It's required on the form that a sample contract is attached to that article, and that's in the record at 102.

Fourth, another Navy manual article, 4610100, which I've already mentioned, requires that if an individual does not have a SSN when they applied to enter the Navy, the recruiter must assist them in obtaining one.

Fifth, by statute, 26 U.S.C. 6109, the Navy must supply SSNs to the IRS for tax purposes. We've got five legally binding criteria that the deputy CNP looked at to determine that, no, we cannot change your MPIN. He didn't consider the subjective factors found in the other regulations. He considered this legal authority.

THE COURT: Ms. Moore, Plaintiff can rebut -- if the separation is voluntary or was voluntary, a plaintiff can rebut, you know, the aspect of voluntariness, and there are five factors. Would you address those factors?

MS. MOORE: Yes. The Plaintiff can show one or more of five factors to try to rebut voluntariness in a separation. One is whether the government caused plaintiff duress or coerced him into resigning. That would be the one at issue here.

A second one, and the rest have not been alleged, but the second one is whether the government misrepresented information, or perhaps that could be tied into the first one, and plaintiff detrimentally relied on it.

The third one is whether the plaintiff submitted his resignation. That wouldn't really apply here because that's more when somebody puts pen to paper and says, "I resign."

The fourth one is whether Plaintiff submitted his resignation under time pressure. There has been no allegation of that.

The fifth one is whether the plaintiff failed to understand the situation due to mental incompetence. There has been no allegation of that.

Regarding the first two, the government told Plaintiff, Navy representatives told Plaintiff, at the time that he would be reenlisting that he had to supply his SSN on the reenlistment contract. That was the law. Had they misrepresented the law, had the law said no one has to use an SSN in the Navy ever again, had the law said that, and they still said, no, you've got to put down your SSN, they would be misrepresenting the law and maybe causing duress on his behalf, Mr. Carmichael's behalf.

They didn't misrepresent the law. They were simply applying the law. That's not coercion or duress. The fact that he had an unpleasant choice to make between adhering to his religion and supplying his SSN is not coercion or duress.

The government was honest and forthright with him in saying you must supply this in order to reenlist. It was following the law. That's not coercion or duress. Maybe he felt tension or conflicting ideas or feelings about it, but that's not duress. That's not government-caused duress. That's what this factor means.

This is simply the law that the government was applying. And there are other cases in the claims court where similar --

THE COURT: The Court of Federal Claims.

MS. MOORE: -- I'm sorry -- Court of Federal Claims and old claims court cases in the federal circuit where -- in Court of Claims cases where individuals have faced similar conflicting circumstances. In the Sanders case -- these are all in our brief -- the Plaintiff was twice passed over for promotion and chose to retire and then challenged that. The federal circuit affirmed the separation. And in the Bergman case -- that was the Court of Federal Claims case -- the plaintiff resigned rather than face mandatory retirement. The same in the Hepee case. That was a Court of Claims case. In the Christy case the plaintiff resigned rather than stay and challenge an agency's decision to separate her for cause. Certainly, there must have been tension and conflict in that decision to resign on behalf of plaintiff.

In the Schraeder case the plaintiff elected to separate from the Air Force even though he didn't qualify for the voluntary-separation-incentive program, in effect, not receiving about $36,000 had he been allowed in that program.

In the Talbot case -- that's a very recent case, a '98 case -- the Plaintiff voluntarily shared with his supervisor that he was homosexual and requested that he resign and be discharged from the service. He was, and after that challenged it. And the Court said, this was your decision to do this, and because it was his unilateral decision to do this, and initiated it, The Court found that the board didn't have to apply five retention factors that normally would be applied if somebody was being separated against their will.

But certainly in all of these voluntary separations there was conflict and tension in the decision to separate. That does not mean that the government caused fraud or duress.

The Plaintiff submitted his request for a new MPIN directly to the chief of naval personnel in December, as well as January, December of '96 and January 6, '97. So he fully intended his request to go to this individual, although now he is saying, it should have gone to my commander, someone at a lower level, to decide these five factors, request for religious accommodation.

Our position is that the request for a change of MPIN is an exception to that. That regulation does not look at why somebody wants a new MPIN. It strictly says that only the CNP can decide such a case. And the deputy CNP decided that based upon the prevailing law, which has not changed, and the Plaintiff had the choice to sign his reenlistment contract.

In an affidavit to the board, dated June 13, '97 -- that's in the record at page 38 -- Plaintiff acknowledged that only the chief of naval personnel could decide his request for a new MPIN. That's on page 38 of the appendix. He says, and I quote, in paragraph five, "I told Lieutenant Commander Reisner" -- that was his chief-of-staff officer -- "I would submit the letter to chief of naval personnel requesting religious accommodation on November 6th."

Then below that he says, "I submitted it," meaning his request, "in accordance with the chief of naval personnel's policy manual, the Military Personnel Manual, which states that the chief of naval personnel is the lowest-level person in the Navy chain of command who can approve a change in what is used as the military personnel identification number assigned to a service member."

So Plaintiff can't complain now that there was a procedural violation in the decision-making in this case.

So because his resignation or his separation was voluntary, it is our position that the Court does not have jurisdiction over the complaint, and, in the alternative, should the Court determine that it does have jurisdiction, the decision to deny a new MPIN to Mr. Carmichael was valid and in accordance with law, and our motion for judgment on the record should be granted. Thank you.

THE COURT: All right. Thank you. Mr. Titus?

MR. TITUS: Thank you, Your Honor. May it please the Court, at the heart of the government's case is the claim that there really is no wrongful-discharge issue in this case, and at the very heart of that part of their claim is that my client, David Carmichael, never made a request for a religious accommodation with regard to whether he could any longer be identified as under his MPIN by a social security number.

It's interesting to me, Your Honor, that in the opening brief --

THE COURT: The way I see this, you are saying that the discharge was unlawful, --

MR. TITUS: That is correct.

THE COURT: -- And the government is saying the resignation was voluntary; and, therefore, it was not unlawful.

MR. TITUS: Well, but, Your Honor, in order for them to get to the question of voluntariness, they have to first dispose of the question of whether he was wrongfully discharged. And they are taking the position that he was not wrongfully discharged because he requested for a change in the MPIN, which was decided by the chief of naval personnel, and that this was really not a request for a religious accommodation, which should have been submitted to the commanding officer under the Secretary of Navy Instruction 1730.8. That's at the heart of what they are saying.

THE COURT: Tell me, sir, what exactly is needed in the Navy for a general request to become a religious- accommodation request, if you know it.

MR. TITUS: Well, I'm glad you asked that question, Your Honor, because if you look at Volume 1, page 009, when this matter came before the Board of Naval Corrections, they had no difficulty understanding that the request that Mr. Carmichael had made was a request under 1730.8. As a matter of fact, what they do on page 009 is they ask the judge advocate general to address the question of whether or not this request that Mr. Carmichael had submitted on November 6th, what the Government calls a request for change in the MPIN, whether or not that request is one that should have been granted under the secretary of Navy Policy 1730.8.

You can look at the BCNR record, as well as the JAG officer's response, and you can see that in that situation the question that was posed to the BCNR was not the one that the government says was before them. In other words, if you look at the BCNR record, you will not see that they thought this was just a formal request for a change in the MPIN. They believed that what Mr. Carmichael had really requested was a religious accommodation. They did not look at it in the formal kind of way that the government now wants this Court to look at it.

As a matter of fact, in the opening brief of the government you will see that they state on page three of their opening brief that by letter, December 2, 1996, Mr. Carmichael resubmitted his request for religious accommodation. So even they, in their opening brief, admitted that what was really the request of November 6th was a request for religious accommodation.

Now, let's look, for example, at that particular request. It's true, as the government's attorney points out, that the particular reference was to the provision in the Military Personnel Manual, 4610100, and that's on the cover sheet of that particular request, and that's on page 212 of Volume 2 of the record in this particular case. But if you notice, by reading the letter that's attached, you will see that his request is grounded in his religious convictions.

It's clear that from the very beginning his request for a change in the MPIN had to do with his religious conviction that he could no longer be identified by the social security number, which was his MPIN. And if you look at that particular attachment, you will find substantively, in paragraphs one, two, six, and seven, that that request for the MPIN was grounded in his religious conviction.

He also attached to that particular letter a letter that he had previously written to the social security commissioner in which he details, from pages 215 to 220 of Volume 2, how he came to that religious conviction. So there is no question that substantively this request was a request for a religious accommodation.

In addition, Volume 2, page 145, you will see that the memo from the assistant chief, naval personnel, that went to the deputy chief of personnel basically stated that this was based upon religious beliefs, and that's why, of course, when the BCNR reviewed this matter in May of 1998, they asked this question of the JAG officer, whether the request should have been accommodated under the Secretary of Navy Instruction 1730.8.

Now, it's interesting that the judge advocate general responded. They didn't say, "Oh, well, he didn't really request a religious accommodation. He only requested a change in the MPIN." Instead, the JAG officer's report, which you can find if you look on page 010 through 015, treated the issue as a request for a religious accommodation. And, indeed, the JAG officer applied that five-factor formula that's required under that 1730.8 secretary instruction.

So for the government to claim here today that this was merely a change in the military personnel identification number and had nothing to do with a request for a religious accommodation simply flies in the face of the administrative record. They simply cannot maintain that consistent with what this administrative record states.

THE COURT: So what you're actually saying is that whether this was voluntary or involuntary has nothing to do -- you are saying that this was an unlawful discharge.

MR. TITUS: That is correct, Your Honor.

THE COURT: Don't you have to reach -- the essential question is whether this was voluntary before you get to the unlawfulness?

MR. TITUS: I don't believe so, Your Honor, because what you have to do is you have to see what happened that led up to the point where he could not sign the contract because they required him to sign a contract that had the MPIN as his social security number. If he had been wrongfully denied his accommodation request, that is, MPIN be a number other than the social security number, then he could have signed the contract, but because he was wrongfully denied that, then it's that wrongful discharge that permeates this case.

And it's interesting, Your Honor. If you look at the BCNR report, they don't even address the question of whether or not it was an involuntary separation. They do indicate that the record showed that it's voluntary, but they didn't address that question. They addressed the question of whether or not the discharge was proper or improper.

So they didn't look upon this case as a case of voluntary or involuntary separation; they looked upon this case as a question of whether it's a wrongful or a rightful discharge. And that's precisely the point here, is under the Sanders rule, as well as the Holley rule, if you have a wrongful discharge claim, which is our first eight claims in our causes of action, then the issue of whether the ultimate separation was voluntary or involuntary doesn't come into play.

We do have an alternative claim, our Claim

Number 9, that it was involuntary, and we believe that there is evidence in this particular case because of the way that our client was treated by the chief staff officer, who refused to submit the November 6th request to the commanding officer, even though it was addressed to the commanding officer, and on several occasions, according to the affidavit that's in the administrative record, stood in the way of presenting this matter to the commanding officer as the Secretary Instruction 1730.8 requires.

THE COURT: If the Court would decide that this was voluntary, how would you rebut the presumption of voluntariness?

MR. TITUS: Well, in this particular case, Your Honor, we believe that Mr. Carmichael was coerced by Chief Staff Officer Reisner.

We allege several facts which indicate that he thwarted Mr. Carmichael's effort to get this particular request before the commanding officer. He stopped him on several different occasions from getting this request for religious accommodation before the commanding officer, where it's supposed to be under the procedural requirement.

THE COURT: The procedural test to rebut that -- to address that issue and dealing with the rest of coercion; how would you address that?

MR. TITUS: Well, I believe that there was coercion in that particular matter, Your Honor, where someone prevents someone from seeking an accommodation with regard to his religious conviction that would have led, had he been granted that accommodation, to a situation where he would not have had to be faced with the choice between signing a contract which had his military personnel identification number as his social security number or not.

How do we know, Your Honor, today, had they addressed the religious-accommodation question, whether they would have agreed to change his military personnel identification number, which then would have meant that he could have signed the contract? Until we know, Your Honor, that the religious accommodation could not have been made, and that could only have been made by the commanding officer himself, according to the procedural rules of 1730.8, then there is no way to know whether he would have signed that contract or not.

So I believe that there is evidence here that he was coerced into that, not only because they failed to follow their own rules with regard to it, but because Mr. Reisner, as we allege and as the affidavits show, actively thwarted Mr. Carmichael's effort because he disagreed with Mr. Carmichael's religious conviction. He said, for example, that theologians don't agree with him, that he has consulted theologians, and you can't take the Bible that literally.

Well, that's not for a chief staff officer to decide. He is not supposed to make that decision. He is supposed to take this particular request to the commanding officer as it was addressed by Petty Officer Carmichael.

THE COURT: Isn't there a Navy regulation as well as an executive order that mandates the use of the social security number as the military personnel identification number?

MR. TITUS: Well, Your Honor, that's a point that is made several times by the government, but if you look at that particular executive order, 9397, it's laid out on pages 130 through 131 of Volume 2. It says this: "It's desirable in the interest of economy and orderly administration that the federal government move toward use of a single, unduplicated, numerical, identification system."

Notice, it's desirable with regard to administrative convenience. It doesn't say it's absolutely required. Indeed, even the Military Personnel Manual rule that is relied upon by the government indicates that the chief of naval personnel has the power to change the MPIN to some other kind of number.

So to rely upon or claim that Executive Order 9397 is an absolute requirement flies in the face of Rule 4610100.1 of the Naval Military Personnel Manual.

And also, they make a big deal out of the fact that the IRS requires. It's an SSN number on tax returns. And yet, as we point out in 26 United States Code, Section 6109 (b), the Secretary of Treasury has the discretion to make an exception with regard to that. And so you don't have anything here which indicates this is legally impossible to have a number other than an MPIN or other than an SSN for the military personnel or identification number.

Not only that, Your Honor, the very purpose of the Religious Accommodation Rule is to exempt someone for religious conviction reasons from what would normally be required by law.

This Religious Accommodation Rule, Your Honor, came out of a case that came before the United States Supreme Court in 1986 where an Air Force officer was disciplined, indeed discharged, I believe, for wearing a yamaca (phonetic.) And the United States Supreme Court said the Free Exercise Clause of the United States Constitution does not protect a serviceman in that kind of matter.

In response to that, Your Honor, which was required by orderly regulations in response to that, they enacted this five-factor formula with regard to religious accommodations for the purpose of excusing a military person from what would otherwise be obliged by regulation or by law. And so the very purpose of the Religious Accommodation Rule is to exempt someone from something that they would otherwise be legally obliged to do.

Now, the government has conceded, Your Honor, in this case that if 1730.8 applies, then the commanding officer who is the one, who's supposed to address the five factors, was not given that opportunity and that was contrary to the procedures that are set forth in 1730.8, Subsection 9. And indeed, that's what the record shows.

Now, in the Kindred case, Your Honor, where the Board of Corrections attempted to do something in that case, applying a five-retention factor formula there substituting for what should have been done earlier, the Court ruled that the BCNR could not correct a record where the officer or the agency or the organization below failed to do its job. And that's, of course, what this case is all about, Your Honor, because this case of making a claim for religious a accommodation was never submitted to the commanding officer.

And indeed, we allege facts to indicate that the chief staff officer actually thwarted Mr. Carmichael's effort to get the matter before the commanding officer for his decision.

THE COURT: If the Court agrees with you, where do we go from here?

MR. TITUS: Well, I believe that we would prevail on this matter, because as in the Kindred case, what was indicated is that since the BOI, the Board of Inquiry, had not considered the five retention factors that they were obliged to do in that particular case, then the plaintiff prevailed in that particular case, because he had been arbitrarily and capriciously and wrongfully discharged, because the service did not follow their rules of procedure. And that's the same thing here, Your Honor.

THE COURT: So what you're saying is, basically, they set up -- the service set up these rules, and yet concerning this particular individual, the service did not follow these rules?

MR. TITUS: That is correct, Your Honor, not only because they failed to follow it, neglected to follow it, but we have also made allegations -- and we have supported it by affidavits -- that we believe that the reason why they did not follow it was because of the religious prejudice shown by the chief staff officer who had a duty to submit this matter to the commanding office for his decision.

He made the decision himself and told Mr. Carmichael that he would not forward it to the commanding officer. He had to take care of the matter himself.

THE COURT: All right. Isn't the deputy chief of naval personnel in a higher position than their commanding officer?

MR. TITUS: Yes, it is. But with regard to 1730.8, Your Honor, you will see that under the procedures, rules, which is procedure nine, that it's the commanding officer who makes the decision with regard to the request for religious accommodation.

THE COURT: The commanding officer then -- does the commanding officer have the final say in this?

MR. TITUS: No, he would not. And this, of course, is the reason why Mr. Carmichael understood that the ultimate decision with regard to the MPIN would have to be made by the chief of naval personnel, because the chief of naval personnel was the one who had the authority to make the change in the number.

But that could only be made after the commanding officer, himself, made a decision of whether or not making such a change would, in some way, interfere with military readiness. Now, what's interesting about this issue of religious accommodation --

THE COURT: But didn't the plaintiff submit a request, a directive, to the chief of naval personnel?

MR. TITUS: Your Honor, if you look at that particular cover memo, you will see that that particular request was actually addressed to the commanding officer. It says, to the commanding officer. Now, it does indicate that he expected it to be forwarded to the chief of naval personnel. But the reason for that is that he understood that the chief of personnel was the only one who had the authority to change the military personnel identification number.

THE COURT: So he did go to the chief of naval personnel. And he did receive a response from the deputy chief of naval personnel; isn't that correct?

MR. TITUS: Yes, but not according to the five-factor formula. There's no evidence on the face of what the chief of naval personnel decided. And you can find this on page 143 of volume 2 of the administrative record. He didn't follow the five-factor formula. The five-factor formula wasn't followed until the JAG officer received the request from the BCNR. And that was after Mr. Carmichael had been discharged.

So no person at the commanding officer level, or even at the chief of naval personnel office, addressed this question under the five-factor formula. But if you look at the five-factor formula, Your Honor, you will see that it's very specific with regard to the issue that is to be addressed. The issue is supposed to be military readiness. This is not an issue of administrative convenience.

If you look, for example, at the JAG officer's analysis under the five-factor formula, he thinks it's an issue of administrative convenience. But look at the language of subsection 1 under procedures 9(a) of the SecNav instruct 1730.8 and listen to the language, the importance of military requirements, including military readiness, unit readiness, unit cohesion, health, safety, morale, and discipline.

You see, a commanding officer is the only one who can determine whether a particular request for religious accommodation impacts on the military requirements of individual readiness, unit readiness, and unit cohesion. He is not concerned about administrative matters.

That's something for the chief of naval personnel to resolve at a later point. But first, it has to be resolved on the basis of military requirements. And that has to be done by the commanding officer. And one of the other things --

THE COURT: Well, why didn't he submit it to the commanding officer directly?

MR. TITUS: Well, Your Honor, he did. If you look at the heading of the first memo, the November 6th memo -- and I'm looking for it at the moment, and I can't exactly put my finger on it -- you will see that he addressed it to the commanding officer of his destroyer unit. It's on page 212.

THE COURT: Well, but that was submitted to the chief staff officer?

MR. TITUS: It says this: From STGC Carmichael to Commander Destroyer Squadron 32 via chief staff officer. He was going up through the chain of command, Your Honor. And if you look at the JAG analysis, the Judge Applicant General analysis, he commends Mr. Carmichael for submitting it according to the chain of command. And he also footnotes in his analysis that there's evidence that the chief staff officer interfered with Mr. Carmichael's effort to get this matter before the commanding officer.

THE COURT: And whether it's one way or another, it did get to the chief of naval -- to the chief naval officer, didn't it?

MR. TITUS: Yes, it did, eventually.

THE COURT: Eventually?

MR. TITUS: Yes. And if you look --

THE COURT: And eventually, he did get a response?

MR. TITUS: Yes, but not according to the five-factor formula. He got a response, Your Honor. But if you look at that response -- and that's on page 143 of volume 2 of the administrative record -- you will see that there's nothing in Mr. Marsh's assessment here that considered any one of the five factors under 1730.8.

And then if you look at the memorandum that's on page 144, it recognizes in the discussion section that the sole purpose of this request that he no longer be identified by a social security number rests upon his religious beliefs.

Now, the government would have you hold, Your Honor, that my client did not follow certain formalities; he didn't put it in the language of 1730.8. He didn't cite 1730.8. Your Honor, my client is the chief petty officer. He's not a lawyer. And as you have asked the government, is there any paper that's supposed to be filled out? Is there any form? And she says, I don't know.

And there's nothing that we find in this administrative record or any other record that there was some form that was readily available to a chief petty officer, so that he looked at it and said, well, I don't want to do that. I want to file a request for an MPIN. I'm not going to file a request for a religious accommodation.

Your Honor, this record demonstrates that when that matter came before the Board of Naval Corrections, they treated it as a request for a religious accommodation, because they read what Mr. Carmichael said that his request was based upon his religious convictions. They knew this was a request for religious accommodation. They treated it accordingly. They just made an error.

They thought they could remedy it by assessing the five-factor formula after he was discharged when the rule requires that the commanding officer make that assessment. And under the Kindred rule, the BCNR could not correct the record according to law. Thank you.

THE COURT: Let me ask you this question. You know, it's kind of way out into left field, but it's still -- I'm going to ask it. Why not reenlist than keep on fighting this issue?

MR. TITUS: Well, he's not eligible to reenlist because --

THE COURT: No. But he would have been eligible to reenlist if he would have signed the contract.

MR. TITUS: But, Your Honor, he would have only been able to do that if he would have violated his religious conscience. And because he had not been treated correctly with regard to his request for religious accommodation, then he had no choice at that point, because once the Navy refused to follow its own rules, its own procedural rules, its own substantive rules, they forced Mr. Carmichael into a choice that they knew would result in his inability to sign a contract without violating his conscience.

That's the reason that that particular procedure is there, Your Honor. That's the reason for the rule is if it's possible to accommodate the person's religious convictions without destroying military readiness, unit readiness, and unit cohesion, then it should be accommodated. That's the Navy's rule. That's not our rule. They should abide by their own rules, both procedurally and substantively. Thank you.

THE COURT: Thank you. Ms. Moore, any rebuttal?

MS. MOORE: Yes, I have some, Your Honor.

THE COURT: Please. You have the floor.

MS. MOORE: Your Honor, Mr. Titus mentioned some statements in the government's opening brief for a motion to dismiss that he asserts or in confirmance with their arguments, specifically that we conceded that it was a request for religious --

THE COURT: There's confusion whether this is a religious accommodation or not. I'm citing your brief.

MS. MOORE: I'd like to point out that, for purposes of a motion to dismiss, we stated in a footnote that certain allegations of plaintiff's complaint were taken as true. That was a footnote in the beginning of our brief in the statement of facts. And that's where Mr. Titus was getting that from.

THE COURT: But you do, at one point, you assert that the request for a new military personnel identification number was not actually a request for religious accommodation. You do allege that, don't you?

MS. MOORE: Yes. First and foremost, Mr. Carmichael was requesting a new MPIN. Now, the reasons he wanted it were because of religious preferences. We don't dispute that. But I'd like to address some points that plaintiff made, Mr. Titus made, during his argument and clarify the record.

He stated that the Judge Advocate General analysis acknowledged that it was, first and foremost, a request for religious accommodation. But first, the JAG analysis talks about the law. The question here is which regulation controlled in deciding this request?

And our position is that it's the Military Personnel Manual Article 4610100 which governed. The legal analysis agrees with that. They first discuss the law on page 12 of the administrative record under 3(a), required use of SSN's. And they go into all the legal authority that requires the SSN's. Only then after that do they talk about the five factors. And that's because they were asked to.

There's no indication in the JAG analysis that they thought this was, first and foremost, a request for religious accommodation, as plaintiff states. They discuss the legal authority first requiring SSN's. Now, the plaintiff agrees that the final decision-maker in this was the CNP, the Chief of Naval Personnel, as we have stated consistently.

He seems to argue that before the CNP reached this issue, it should have been decided by a commander at a lower level. That's what plaintiff seems to be arguing now. Our position is that, again, this military article, 4610100, does not require a procedure that such a request be decided by any lower-level official, other than the CNP. It says only the CNP can decide such a request.

It does not require that any five factors be taken into consideration at all. It doesn't even mention the five subjective factors, as plaintiff argues should have been looked at by the CNP.

THE COURT: Why is plaintiff arguing all of this?

MS. MOORE: Because he is looking at two other regulations. One is a DOD directive. One is a Secretary of Navy instruction that talk about requests for religious accommodations. This is -- what the Court will have to do is decide which controlled, the Secretary of Navy Instruction 1730.8 or the Military Article 4610100, Request for Change of MPIN.

Because they require different analysis or they require different procedures in deciding, the Secretary of Navy Instruction 1730 has the five factors, which the CNP didn't apply. The military article which says that a request for change has to be decided by the CNP has no five factors. It does not tell the chief of naval personnel how to decide such a request. So what this man did, Gen. Marsh, the Deputy CNP, he looked at the law. He looked at the controlling law.

THE COURT: Are you deciding -- are you requesting something because of your religious beliefs, wouldn't logic follow that this would be a religious -- a request for a religious accommodation?

MS. MOORE: Not in the face of a very specific article talking about a request for change in MPIN. Had there been no such article saying that the request and change of MPIN has to be decided by the CNP, then perhaps it could have fit only into that Navy instruction that talks about religious accommodation. This is an exception to that. It's as if they don't care why somebody wants to change an MPIN.

It has to be decided by the CNP on his known. No five factors are required for him to look at. Now, there are instances where an MPIN has been changed. And that's in the record. And there are about three instances. One is when someone has been issued two social security numbers by accident and something has to be done so that only one is the controlling one. Another one -- there were three of them.

I think the second one was where somebody didn't get a social security number. Even after they enlisted, they didn't have one. And they had to get one. But there's no guideline for the CNP directing him that he has to look at five factors or anything subjective in making his decision. So general marsh looked at the look. And --

THE COURT: You would only look at the five factors that the plaintiff mentioned if you are specifically requesting for a religious accommodation, otherwise, you don't look at those five factors?

MS. MOORE: Not necessarily. In this case, let's say that everyone agrees that, yes, he did request a religious accommodation. Here you've got an excluding article. You've got a military article that exempts a particular subject matter from that five-factor analysis. And that is a request for change of MPIN. They are saying such a request is a whole different subject matter.

It's so critical that it goes to the top dog, the top personnel person. And only he can decide it. We're getting away from the reasons why somebody wants something. It doesn't matter the reasons when it comes to requests for MPIN change.

THE COURT: And you were saying that that person decided, the top dog decided?

MS. MOORE: He decided as the article required him to. And this Court and recently in February of 2000 in Weaver v. United States said that --

THE COURT: For the record, the top dog is not disrespectfully meant in any respect by either counsel nor by the Court.

MS. MOORE: No, Your Honor. You're absolutely correct. This Court recently in February of 2000 in Weaver v. United States addressed another Military Personnel Manual article, not the one at issue here, but a different one, but from the same manual and said that -- they quoted from a Federal Circuit case that it has long been established that government officials must follow their own regulations. This is on page 78 of that decision, 46 Federal Claims 69, February 2000.

THE COURT: What case is that?

MS. MOORE: Weaver v. United States that also dealt with another Military Personnel Manual article. Here we're dealing with a different article, but in the same manual that required the CNP to decide on this request for change of MPIN. He did decide -- he decided based on the law, and he didn't have discretion, given the law on this issue. The law prevails over any subjective factors.

And that's Secretary of Navy instruction. It prevails over that, because this is an exception. The subject matter has been excepted out of the Navy instruction dealing with religious accommodation preferences and requests. And, again, the law -- the Secretary of Navy issued in 72 a regulation saying that all naval personnel must use their SSN's on all forms, ID cards.

Article 105.0150 required it on enlistment agreements. This is not new. This has been going on for decades. And surely, plaintiff realized this. And he, himself, used the SSN without objection from 1980 until 1996 when this came up and he acquired his religious beliefs. It's not new. Again, the executive order, you know, signed into law 1943 has never been repealed or rescinded. And that requires federal agencies to use SSN's exclusively.

So basically the CNP was just applying existing law to this case. And there's no requirement that on the way to the CNP it had to stop with commanding officer or the commander, as plaintiff argues. As a matter of fact, plaintiff argues that Jack Rosner, Lt. Com. Rosner, thwarted plaintiff's efforts to have this decided by his commander.

If you look at the record on page 212, the administrative record, the cover letter dated November 6th of '96 that is addressed to plaintiff's commander -- we can see that. It does say to commander destroyer squadron 32 via chief staff officer dated November 6th, '96. So it does look like Mr. Carmichael was hoping that his chief staff officer, Jack Rosner, Lt. Com. Rosner, would forward this to the commander. However, there are enclosures listed.

First is a letter to the chief of naval personnel. That's the next page. And that's also dated November 6th of '96, the very same day of the cover letter. So there was no time lag. It's not as if only when Mr. Rosner refused to forward this to the commander, then was plaintiff forced to go the route to the CNP which he didn't want to have to do initially. That's not the case.

On the same day, November 6th, he had already written a letter to the chief of naval personnel. So from the beginning, he knew that this had to be decided by the CNP. There's no -- the record -- I mean, even this letter is signed by Mr. Carmichael on page 214.

THE COURT: You're saying on November 6th of '96, when he submitted this request to the chief staff officer that one of the attachments there was addressed to the chief of naval operations?

MS. MOORE: Chief of naval personnel. Exactly. And that letter was dated the same date as the cover letter to the chief staff officer. So the day he handed -- say, he handed this letter to the chief staff officer November 6th, the same day he intended the attached letter to go to the CNP because it was there. It was dated the same date. So it's not as if there's a time lag at all. I mean, this clearly implies that Mr. Carmichael --

THE COURT: Shouldn't the commanding officer have acted on this?

MS. MOORE: No, he shouldn't have, because that article -- again, it's 4610100 -- says that the CNP is the only person that can decide a request for change of MPIN. And his letter was addressed to the CNP. He asked -- he says in this cover letter, even the one given to the chief staff officer, it says respectfully requests forwarding of enclosure one, the letter, to the chief of naval personnel. So from the very beginning, he knew that the CNP had to decide this by virtue of that article that I've been citing.

There's no question. It wasn't as if the chief staff officer made him wait two months by refusing to forward anything, and all of a sudden he realizes, oh, I better do this myself. He meant -- he intended from the beginning for the CNP to review and decide this.

He submitted this letter in early December and again in early January to the CNP directly. He got a response dated February 11th. I think he received it in early March. I'm not sure why the time lag. But he did receive it from the CNP.

Now, perhaps, the chief staff officer was not as diplomatic or respectful as he could have been in responding to Mr. Carmichael. Maybe, that happened. Maybe, it didn't. That really is not an issue in this case. If it were something so egregious that it amounted to a tort, Mr. Carmichael's in the wrong court.

The fact is he intended this request to go from the very beginning to the chief of naval personnel as required by the Navy article. And the chief of naval personnel decided that based on the existing law. I just want to respond to a few other things that plaintiff said.

THE COURT: Please do.

MS. MOORE: He stated that we didn't -- the government didn't bring up the issue of involuntary separation at the board level before the BCNR. The issue of voluntary separation comes to play in the Court for jurisdictional purposes. It does not come into the play at the board level. The reason we brought it before the Court is because of jurisdictional purposes, court of federal claims case law that says a voluntary separation, the Court has no jurisdiction over.

So it would haven't have been applicable to bring to the board anyway at that level. And, again, we're not arguing that there was a wrong form submitted by plaintiff at all. What we're simply responding to is plaintiff's argument that the wrong person decided his request. We're responding by saying the letters all intended to go to the CNP. They did. They reached him. And he decided it.

So we're not arguing that there was any form. I mean, we're simply responding to their argument that the government violated the process, the form process.

THE COURT: So you're saying it was not unlawfully done. It was, actually, a voluntary decision by the plaintiff?

MS. MOORE: Well, yes. He voluntarily decided to not sign the reenlistment contract. Now, what he's arguing is that legally he didn't have to. The five legal criteria that we have espoused here today are not binding to require him to use an SSN. And because of that, he was coerced into having to use it in order to reenlist.

So if the Court finds that the legal criteria are valid to require use of an SSN, there's no coercion, because the government was just insisting upon what was legally required. That's our position. And by insisting on something that's required, that does not amount to coercion of somebody else or duress. Maybe, they felt it internally, but that doesn't mean the government caused it. That's not the government's fault that it's applying the law.

And the board decision, finally, the board decision did acknowledge that Mr. Carmichael's reasons for wanting a new MPIN were religious-based. The board realized that. It did not apply the five factors, because it realized that the law was so controlling on this issue and that it had been correctly decided by the CNP that the five factors, it's not appropriate to apply the five factors when you've got the law in place.

And the article was -- the Military Personnel Manual Article 4610100 was correctly applied. So the board wasn't missing anything here. And the legal analysis that was given to the board simply was in response to a request to cover all bases as a good legal analysis would. It does not mean that the government is signing on to any particular argument or not signing on to any particular argument. And that's all we have.

THE COURT: All right. Thank you.

MS. MOORE: Thank you.

THE COURT: Rebuttal, Mr. Titus?

MR. TITUS: Your Honor, I have three points on rebuttal. The first one has to do with the government's contention that the statements on page three of their openings brief were made only in conjunction with their motion to dismiss, that they were just simply repeating what was in the plaintiff's complaint.

But if you look at that particular document, Your Honor, it also includes their memorandum in support of their motion for judgement upon the administrative record. And I'd like to read to you from page 15 where it says this: The accommodation of religious customs is carefully governed by Navy instructions and regulations.

At plaintiff's request, the change is MPIN. The issue was regulated by Secretary of the Navy instruction, SecNav Instruction 1730.8 which details specific standards for accommodating the religious beliefs and customs of naval personnel.

The government stands here today and says that 1730.8 doesn't apply to this case, because it was a request for a change in MPIN which is an entirely separate matter. As a matter of fact, they argue today that the provision in the Naval Military Personnel Manual, 460100, is an exception to the Religious Request Rules. And yet, in their opening brief, they said that the legality of this particular action by the government is governed by 1730.8.

I believe, Your Honor, that the reason the government is arguing what they are arguing today is because when we cited Kindred case and demonstrated that this case is on all fours with Kindred, that the BCNR could not rehabilitate this matter because the matter had never been submitted to the commanding officer, the government changed its legal theory.

And they've come up with this novel idea that somehow when it comes to a military personnel identification number that's exempt from the policy with regard to request for religious accommodation. May I suggest, Your Honor, that that is disingenuous. It disregards what they said the first time. And they are responding, I believe, because they understand that the Kindred case stands in their way.

Now, if you look at the language of the two rules, which they say are in conflict with each other, you'll see that there's no conflict. If you look, for example, at 4610100 it simply says that a military personnel identification number may be changed only upon approval by the chief of naval personnel.

It doesn't set forth any standards upon which such a change might be made. It might be made because of a mistake that the social security office -- it might be made for some other kind of reason. But this doesn't set forth any standards as to whether it should be made or shouldn't be made.

But if you look at SecNav 1730.8, you will see that it addresses the question of religious accommodation. And if you look at the language, you will see that this is a comprehensive rule. It applies to all aspects of Navy, Army, Marines, and therefore, it's comprehensive. So you have to read 4610100 in relationship to the breadth of that particular regulation.

Now, if you look at subsection 11, you will see that the responsibility for administering this overall policy is in the chief of naval operations. If they are supposed to be an exception, if somehow the MPIN is exempt from the Religious Accommodation Rule, you would think that they would say that very specifically. By they don't.

They say just the opposite in subsection 9, in which they say this: That commanders and commanding officers may approve requests for religious accommodation within the guidelines of this instruction to promote standard procedures. For resolving difficult questions involving accommodation of religious factors or practices, commanding officers shall consider the following factors.

So what this procedure under number nine is designed to do is to say if it's not specifically dealt with in the rules that govern requests for religious accommodation, then it must be governed by the five-factor formula which the government concedes must be applied by a commanding officer. No one can substitute for the commanding officer on that. And that's their position in their opening brief. They just changed their mind since then.

The final point I'd like to make is with Mr. Rosner. The government concedes that, perhaps, he wasn't as diplomatic as he should have been. Well, if that's the case, then let's find out how diplomatic he was and how diplomatic he wasn't. They want to make a judgment on the administrative record.

But I suggest to you, Your Honor, that the involuntary-voluntary question and other questions that we raise in our several causes of action can only be resolved by a evidentiary hearing. If the government just simply represents him as not being as diplomatic, we would like to have Mr. Rosner subject to cross-examination and find out how diplomatic or undiplomatic he might have been.

And we believe that that goes to the heart of the question of whether there was an involuntary separation. And it certainly goes to the heart of our claims in causes of action 4 and 5 in which we claim that he was religiously prejudiced against our client.

And that's the reason why he stopped him at every point getting his request before the commanding officer and forced him to ignore the chain of command in order to get it to the chief of naval personnel. Thank you very much.

THE COURT: All right. Thank you. Ms. Moore, anything else?

MS. MOORE: Just a few points, Your Honor, to make.

THE COURT: Sure. Okay.

MS. MOORE: In our motion to dismiss, as I've stated, we accept it as true, certain allegations of the complaint. And we dealt with them in the motion to dismiss and then also on the merits later on in that brief. And that did take one of plaintiff's assertions about the request for religious accommodation.

On the merits of our brief in our reply brief, we did hone in more on our argument that this is, first and foremost, belongs with an article dealing with requests for a change in MPIN, rather than 1730.8, Navy instruction.

Now, regarding Mr. Rosner, or Resner, Lt. Com. Rosner, a few things. Assuming he did not show respect towards Mr. Carmichael's religion, even assuming that, that has no bearing on the legal aspects of this case. Mr. Rosner did not decide the request for a change in MPIN. If the Court believes it, it was first and foremost a request for religious accommodation. He did not decide that either.

He did not make any decision. He did not thwart the process in that he did not interfere with the request going to any higher authority, for instance, the chief of naval personnel. He did not intervene to disallow the CNP from receiving the request or deciding it. He did not interfere with that process at all.

And plaintiff cannot show that the commander was the prevailing authority on this request. So anything Mr. Resner might have said or done is not relevant to the legal issues in this case. And that was the proper article or regulation applied by the proper authority in the proper way. Thank you.

THE COURT: So any evidentiary hearing dealing with this individual will be of no avail and no purpose for the Court. Is that right?

MS. MOORE: Exactly, Your Honor. It would be of no use to the Court. But there's documentation all over the record as to the submission of Mr. Carmichael, who they were received by, how they were decided, and the legal analysis by the board, and the reenlistment contract circumstances. And that's what the Court needs to decide this case.

THE COURT: All right. Thank you very much. Anything else from you? I'll give you a last word.

MR. TITUS: Thank you, Your Honor. On that last point, Your Honor, I would just call your attention to claims one, two, three, four, five, and nine in our complaint and to note specifically our factual allegations in paragraphs 21, 22, 23, 24, 25, and 26 that are directly relevant to those claims, as well as the affidavit of Mr. Carmichael that's in the administrative record on page 37 of volume one to indicate that if indeed we get to those particular claims, then there are fact issues here that demand an evidentiary hearing. Thank you.

THE COURT: All right. Thank you. We'll take it under advisement. And we'll render our decision in due time. All right. Thank you for the argument.

MS. MOORE: Thank you.

THE COURT: We stand adjourned.

MR. TITUS: Thank you.

(Whereupon, at 3:52 p.m., the hearing in the above-entitled matter was adjourned.)

//

REPORTER'S CERTIFICATE

DOCKET NO.: 99-958C

LOCATION: Washington, DC

I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the above case before the United States Court of Federal Claims.
 
 

Date: October 12, 2000

John DelPino

Official Reporter

Heritage Reporting Corporation

1220 L Street, N. W.

Washington, D. C. 20005