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December 23, 1982

R. WARD MUNDY, Plaintiff,
CASPAR W. WEINBERGER, et al., Defendants

The opinion of the court was delivered by: GREENE

This case raises important issues concerning the status of the United States Court of Military Appeals and the extent to which it may be controlled by others in the Department of Defense.

 Plaintiff R. Ward Mundy, formerly the highest nonjudicial officer of the Court of Military Appeals (CMA), alleges that officials of the Department of Defense (DOD) blocked a promotion the court had granted him, thereby illegally interfering directly with the court's internal personnel matters and indirectly with its statutory independence from military control. He also contends that the DOD officials violated his First Amendment rights in that their failure to promote him was motivated by a desire to punish court employees who opposed DOD policies.


 Congress established the Court of Military Appeals in 1950 when it enacted the Uniform Code of Military Justice. Pub. L. No. 506, 81st Cong., 2d Sess., 64 Stat. 108 (1950), codified at 10 U.S.C. § 801-940. Created under Congress's Article I powers, *fn1" the court is composed of three civilian judges appointed for fifteen-year terms by the President with the advice and consent of the Senate. Although the tribunal is the "Supreme Court" of the military justice system, *fn2" Congress placed it in the Department of Defense "for administrative purposes only." Id. at § 867(a) (1). *fn3" To what extent this placement is a grant of supervisory authority to DOD, as opposed to a command that DOD merely provide nondiscretionary, ministerial assistance to the court, is the nub of this lawsuit.

 The first encounter between the court and DOD involving plaintiff Mundy occurred upon Mundy's elevation, in September, 1976, from staff attorney to the newly-created post of Court Executive. *fn4" Chief Judge Albert B. Fletcher, Jr., in making the appointment, *fn5" sought to promote Mundy from the GS-14 grade he then held to a grade of GS-16. The Defense Department forwarded the chief judge's request to the Civil Service Commission with its endorsement. The CSC responded on March 16, 1977 that the two-grade advance would circumvent the Whitten Amendment, 5 U.S.C. § 3101 note, and therefore declined to promote Mundy or evaluate and classify the Court Executive position. *fn6" On March 27, 1977, Mundy was promoted one grade, to GS-15, an elevation that did not require waiver of the Whitten Amendment.

 After Mundy had served as a GS-15 for nearly a year, Chief Judge Fletcher again attempted to promote him. On February 14, 1978, he forwarded to David Cooke, Deputy Assistant Secretary of Defense (Administration), a "personnel action" form and cover letter regarding Mundy's promotion to a GS-17 "as soon as administratively possible." *fn7" Fletcher also asked DOD to seek a waiver of the Whitten Amendment. *fn8"

  Despite the chief judge's request and his expression of urgency, *fn9" Cooke did not submit the request to the Civil Service Commission. Instead, in a memorandum to John Kester, Special Assistant to the Secretary and Deputy Secretary of Defense he addressed a wholly different issue of internal CMA management -- that the terms of the Court Executive position be modified so that the person holding the job would serve at the pleasure of the Chief Judge. *fn10" Approval was apparently forthcoming, for Cooke's alternative was proposed to Chief Judge Fletcher some time during May, or early June, 1978. The chief judge rejected the modification, explaining in a letter to Cooke that a permanent, nonpolitical Executive was precisely what the Court needed. He further observed that the nonjudicial officer of the U.S. Tax Court was a GS-17, but noted the Court's resignation "to make do at the GS-16 level for one year" if the Civil Service Commission declined to grant the Whitten Amendment exemption. Despite a second letter to Cooke in October *fn11" and a letter to Kester in December, *fn12" DOD had taken no steps by early 1979 to advance Mundy to either a GS-16 or GS-17. *fn13"

 At this point the Civil Service Reform Act of 1978 *fn14" somewhat altered the terms of the parties' stalemate. The Act created the Senior Executive Service (SES), 5 U.S.C. §§ 3131-36, thereby establishing a new, autonomous rubric for senior governmental employees and providing a new set of regulations for including an employee within this echelon. *fn15" The CMA's preference for three SES posts was reflected in the overall request submitted by DOD to the Civil Service Commission: one each for the Court Executive (described as "vacant" in the request), the Clerk of Court, and the Director of Legal Staff. In February, 1979, the Office of Personnel Management (OPM), successor to the Civil Service Commission, issued its tentative, government-wide SES slots, one for Court Executive and the other for Legal Staff Director. *fn16" Nevertheless, the DOD personnel office forwarded to CMA only the forms for the second position. In line with what OPM had told him, Chief Judge Fletcher then drafted a duplicate "offers" form and presented it to Mundy in late March, 1979. *fn17" Mundy accepted the offer on April 9, 1979. As far as the Chief Judge and Mundy were concerned, Mundy was now a member of the SES.

 This was not the end of the matter, however, for notwithstanding the decisions of both OPM and the chief judge of the CMA, the offer and acceptance were not recognized by the Department of Defense. *fn18" Despite a final request by Chief Judge Fletcher dated June 19, 1979, Mundy was never included within the SES nor promoted above a GS-15. *fn19"

 On August 18, 1980, Mundy filed this lawsuit; later, on May 30, 1981, he resigned. *fn20" Mundy alleges that DOD officials prevented his promotion in retaliation against his criticism of DOD policies, including DOD's treatment of the CMA, and that in any event their actions violated the statute creating the CMA as an independent, Article I tribunal. He seeks (1) a judgment against the official defendants *fn21" and an award of back pay for their obstruction of his promotion; and (2) damages against the individual defendants, *fn22" under both Bivens v. Six Unknown, Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), and 42 U.S.C. § 1985(3). Plaintiff has moved for summary judgment on the first claim. The individual defendants have moved for dismissal of the remainder of the complaint. The Court rejects plaintiff's claims against the individual defendants but will enter a judgment in favor of plaintiff against the official defendants.


 The various defendants raise a number of technical, threshold issues which will be discussed before turning to the merits of the complaint.

 1. Venue. Four of the five individual defendants have moved for dismissal on the ground that as to them venue in the District of Columbia is improper, because they neither lived nor worked within the District at the times relevant to this lawsuit.

 The Court finds that the geographic placement of the Pentagon across the Potomac River *fn23" from the bulk of the U.S. government's principal offices does not deprive this lawsuit, which is largely a dispute between high-ranking federal officials, of its solid grounding in the District of Columbia.

  To determine where a claim arose, a court should engage in a "common sense appraisal" of "events having operating significance in the case." Lamont v. Haig, 192 U.S. App. D.C. 8, 590 F.2d 1124, 1134 (D.C. Cir. 1978). Venue is proper "if the activities that transpired in the forum district were not insubstantial in relation to the totality of events giving rise to the plaintiff's grievance and if the forum is generally convenient for all litigants." Lamont, supra, 590 F.2d at 1134 n. 62.

 Plaintiff's former place of employment, the Court of Military Appeals, is located in the District of Columbia. This is especially significant considering that his grievance stems directly from his employment and from the decisions of others about that employment. The defendants' involvement in this suit may well have consisted primarily of decision-making in their Pentagon offices, *fn24" but this decision-making was not the formulation of general policy that might affect scores of persons. It was the formulation of one decision, the results of which affected one person, holding a unique job, known to be working in a one-of-a-kind federal office located in Washington, D.C., precisely because that city is the nation's capital. Indeed, the Pentagon, too, is located where it is because of its proximity to the nation's capital; it even uses a Washington, D.C. mailing address. For these reasons, the Court finds that venue was proper here. That is not to say that all activities occurring in any U.S. government office located near the District of Columbia may give rise to venue in this District. Suffice it to say that the Pentagon is hardly "any" federal office. Here, the plaintiff's grievance and the acts that gave rise to it are inextricably bound up with the District of Columbia in its role as the nation's capital. Sufficient connection with the District exists that venue is proper here with respect to the individual defendants, "notwithstanding that venue might also lie in other districts." Lamont, supra 590 F.2d at 1134 n. 64. The Court observes, finally, that to uphold venue in the District is not inconvenient for the defendants. The District of Columbia is not significantly less accessible to an individual who lives or works in the Eastern District of Virginia -- as the defendants allege they do -- than would be Alexandria, the seat of that district.

 2. Standing. The official defendants and the United States challenge plaintiff's standing to pursue that part of his claim that alleges a violation of the statute creating the Military Court of Appeals, 10 U.S.C. § 867(a) (1). However, it is clear that plaintiff has satisfied the three standing requirements operative in this Circuit. *fn25" See Control Data Corp. v. Baldridge, 210 U.S. App. D.C. 170, 655 F.2d 283, 288 (D.C. Cir. 1981).

 Plaintiff alleges that he was deprived of his rightful salary because of the actions of the defendants. This economic injury would be redressed were the Court to order payment to him of the withheld funds. Thus, plaintiff has alleged an "injury in fact," the first of the three requirements. The second prong of the standing inquiry requires a look at the purpose of the statute that created the Military Court of Appeals to determine whether the defendants' alleged action "injured an interest arguably within the zone of interests to be protected or regulated by the statute . . . in question," Control Data, supra, 655 F.2d at 288, that is, whether there are "some indicia -- however slight -- that the litigant before the court was intended to be protected, benefited or regulated by the statute under which the suit is brought." Copper & Brass Fabricators Council, Inc. v. Department of the Treasury, 679 F.2d 951, 952 (D.C. Cir. 1982),.

 Mundy claims that the actions of DOD officials infringed upon the independence of the Court of Military Appeals by interfering with its personnel decisions. The establishment of an independent military tribunal was Congress's principal objective in enacting 10 U.S.C. § 867. See Part III infra. The independence of a court depends to a large extent on the independence of its personnel from power centers outside the court. For these reasons, it is appropriate to conclude that Congress, in undertaking to provide for an independent court, necessarily intended to protect the independence of a high-level court employee such as Mundy. *fn26" The third standing component, that there be no "clear and convincing" indication of a legislative intent to withhold judicial review, poses no barrier here for no such indication has been presented to the Court. Accordingly, the standing challenge fails.

 3. Joinder. Defendants next claim that the Court of Military Appeals is an indispensible party to this action because, in deciding this case, the Court will have to ascertain the proper relationship between the Court of Military Appeals, the Defense Department, and the Office of Personnel Management. Defendants have entirely failed to show that the CMA is "'needed for just adjudication,'" Park v. Didden, 695 F.2d 626, 629 (D.C. Cir. 1982), slip op. at 6, such that dismissal would be warranted under Fed. R. Civ. P. 19. Adequate relief can be accorded in the court's absence, and any judgment for or against plaintiff will not impair the court's interests to such an extent that it should be regarded as an indispensible party under Rule 19(b).

 4. Exhaustion of Administrative Remedies. Defendants contend that plaintiff has failed to exhaust his administrative remedies under the Civil Service Reform Act of 1978, the Classification Act, the Federal Tort Claims Act, and the Federal Employee Compensation Act, and that he therefore may not press his claim in this Court. Plaintiff's claim is not brought under any of these statutes and therefore whatever exhaustion requirements they may contain are not applicable. He seeks back pay on the theory that he was promoted to a GS-17 level but denied the emoluments of that office through defendants' illegal actions; he also seeks damages under a Bivens theory and pursuant to 42 U.S.C. § 1985(3). These remedies carry no exhaustion requirement.

 5. Res Judicata. Relying upon Miele v. Brown, No. 77-1346 (D.D.C. August 29, 1977) defendants argue that the action is barred by res judicata and collateral estoppel. *fn27" However, the judgment in that case simply established "that employees of the Court of Military Appeals are entitled to continue to be under the civil service system." Plaintiff does not contest the applicability of the civil service laws to his former position. He alleges wholly different violations: that the Department of Defense improperly interfered with employment rights afforded by other sources, namely 10 U.S.C. § 867 and the First Amendment.

  6. Sovereign Immunity. Defendants contend finally that, even if they acted unlawfully in refusing to effectuate Mundy's promotion, his request for back pay is barred by the doctrine of sovereign immunity. Land v. Dollar, 330 U.S. 731, 91 L. Ed. 1209, 67 S. Ct. 1009 (1947).

 This position, too, is not well-taken. Sovereign immunity does not bar a suit where one "had been denied the benefit of the position to which he was appointed." United States v. Testan, 424 U.S. 392, 402, 47 L. Ed. 2d 114, 96 S. Ct. 948 (1975). Here, plaintiff asserts that the acts of OPM and the CMA were sufficient to accomplish his "appointment" to the new position. If that is the case, DOD's improper withholding of formal approval merely denied Mundy the "benefit" of this position. Indeed, Congress appropriated the funds that Mundy seeks. The budget covering the Court of Military Appeals specifically included funds for a Court Executive at grade GS-17 for the fiscal years 1978-81. See note 5 supra. The appropriation may be regarded as signifying the government's consent to the expenditure of the funds for which Mundy brought suit.

 In short, like the French police inspector in the motion picture "Casablanca" -- who inevitably and unsuccessfully ordered a round-up of the "usual suspects" following an assassination -- the government here has, once again, inevitably failed in its reliance on its usual technical defenses.


 The core of plaintiff's claim is that by overruling or ignoring the personnel decision of the chief judge acting for the court, the DOD violated the letter and the spirit of the congressional mandate that the Court of Military Appeals be an independent, judicial tribunal which is a part of DOD "for administrative purposes only." 10 U.S.C. § 867(a) (1).

 The legislative history of the Uniform Code of Military Justice reveals that Congress had two basic aims in establishing the Court of Military Appeals. First, it wanted to ensure uniform application of the new code. See 96 Cong. Rec. 1362 (1950) (remarks of Sen. Kefauver). Second, and more important in terms of this lawsuit, Congress intended to reduce the level of command control over the military justice system. The Congress believed that public confidence in the fairness of military justice would be promoted by the establishment as the highest tribunal in the military justice system a court composed of civilians who would not be controlled by the Secretary of Defense or by any of the branches of the military service. *fn28" The objective of reducing command influence is apparent in the Code itself, see 10 U.S.C. § 837, in military procedural law, see Mil. R. Evid. 606(b), and in the decisions of the Court of Military Appeals under the Code. See, e.g., United States v. Rosser, 6 M.J. 267 (C.M.A. 1979); United States v. Cole, 17 U.S.C.M.A. 296 (C.M.A. 1967) ("one of the basic objectives of the Uniform Code of Military Justice is to eradicate [the] misuse of command power . . . ."); United States v. Johnson, 14 U.S.C.M.A. 548, 551 (C.M.A. 1964) ("the apparent existence of 'command control' . . . is as much to be condemned as its actual existence."); United States v. Littrice, 3 U.S.C.M.A. 487, 491 (C.M.A. 1953) ("Congress expressed an intent to free courts-martial members from any improper and undue influence by commanders . . . ."). The creation of the CMA was, in fact, the primary reform of the Uniform Code, a means by which Congress strove to effect "a compromise between the demands for justice on the one hand, and the demand for an efficient, well-disciplined and fighting Army on the other." West, A History of Command Influence on the Military Justice System, 18 U.C.L.A. L. Rev. 1, 86 (1970). See also Willis, The United States Court of Military Appeals: Its Origin, Operation and Future, 55 Mil. L. Rev. 39 (1972). *fn29" It was a "compromise" opposed by the military. Thus, the new court "entered an environment that was less than enthusiastic about its creation." Willis, supra, at 71. Military hostility toward the court manifested itself in public criticism of specific decisions, particularly those that incorporated constitutional safeguards into military law, and, in the early 1960s, in proposals to rein in and even disband the court. Although these proposals were rebuffed by Congress, *fn30" the commentators state that the Court of Military Appeals has still a long way to go to eliminate command control over the court-martial process. *fn31"

 Against this background of conflict between the military command and the court, the government defends the Defense Department's actions in the instant case by relying essentially only on the provision that places the CMA in that Department for certain purposes. DOD officials contend that they treated the court's personnel request no differently from the manner in which they treat those respecting non-court DOD employees.

 In the view of this Court, the defendants wholly fail to appreciate the difference between a court and yet another military unit; and they have also interpreted "administrative purposes only " (emphasis added) as conferring too much authority on the Department of Defense to use its discretion to contravene the policy decisions of the Court of Military Appeals, and particularly its decisions with respect to the appointment and compensation of its key officials. For the fact is that DOD's interpretation and its conduct in this case are simply inconsistent with Congress's wish that the court be independent.

 The legislative history of subsequent amendments to 10 U.S.C. § 867 indicates that Congress passed these amendments to counter claims that the court was "an instrumentality of the executive branch or an administrative agency within the Department of Defense." S. Rep. No. 806, 90 Cong., 1st Sess. 2 (1967). Indeed, the Senate Committee observed that the Court's placement in DOD was intended "only to reduce expenditures for the administration of the relatively small staff of the Court . . . [and] meant merely to authorize the Department of Defense to furnish such things as telephone services, transportation facilities, and to purchase "supplies." Id. As for other matters, "the court justifies its own budget and funds are appropriated for its operations with no control exercised by the Department of Defense." Id.32

 In view of these authorities it cannot be seriously disputed that Congress intended the Court of Military Appeals to operate autonomously. *fn33" In the view of this Court, DOD clearly violated this congressional command by obstructing Mundy's promotion. Its officials were informed that the department's inaction was causing friction within the court's staff, impeding effective management and preventing the court from "fulfilling its statutory duties." Yet its officials persisted. Then, when the formation of the SES presented a new opportunity to the court properly to execute its 1976 reorganization, the Defense Department stymied that attempt as well by failing to distribute the proper forms and otherwise to process Mundy's inclusion in the SES. It cannot be said with certainty that the Civil Service Commission would have granted the Whitten Act waiver had the Defense Department forwarded the chief judge's request. *fn34" But even if it had not, Mundy could have advanced one grade, to GS-16, and in one year's time would have been eligible for advancement to GS-17 consistent with the Whitten Act's terms. At either GS-16 or GS-17 Mundy would have been eligible for the SES and conversion would have been nearly automatic given OPM's endorsement of the Court Executive's inclusion in the SES. In contrast, DOD's obstructionist actions held up all processing of promotions for Mundy such that he was eventually foreclosed from the SES by various "Catch-22" technicalities.

 Alternatively, it is also clear that all necessary steps had been taken for Mundy's inclusion within the SES save a ministerial act. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 156, 2 L. Ed. 60 (1803). OPM allotted two spots for the Court, dispensed two sets of forms, and the Court presented Mundy with an offer to join, which he accepted. Congress had approved the relevant line item of a Court Executive at GS-17. All that stood in the way of the promotion's becoming an endorsement by the Secretary of Defense, *fn35" a ministerial act. *fn36" Thus, plaintiff is entitled to back pay representing the difference between GS-15 and GS-17 from July 13, 1979 -- the effective date of the SES -- to May 30, 1981, the day he resigned. *fn37"

 In a sense, it is not merely a civilian-military conflict that underscores the present controversy, but also one of separation of powers between the legislative and executive branches. The Court of Military Appeals is a creation of Congress while the Defense Department is a direct arm of the Executive. In the instant case, executive officials have affected in the most direct way the salary and tenure of the court's highest nonjudicial employee. One would have to be naive not to conclude that, if advancement and tenure of the highest CMA employees depended essentially on DOD outsiders, rather than on the judges of the court they serve, there are bound to be, at a minimum, conflicting loyalties: the Court Executive, the Clerk of the Court, and similar officers are likely to look over their shoulders at the DOD officials when confronted with issues -- arising by way of decision or advice to the judges -- which might anger these outside officials. As the Supreme Court observed, "it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will." Humphrey's Executor v. United States, 295 U.S. 602, 629, 79 L. Ed. 1611, 55 S. Ct. 869 (1934).

 It is of course for reasons such as these that federal judges are given lifetime appointments and fixed salaries, *fn38" that employees of courts are generally subject to autonomous employment systems, *fn39" and that court budgets are insulated, insofar as possible, from executive change. *fn40" Although the Court of Military Appeals is an Article I court, not one established under Article III, it is a body created by Congress to perform inherently judicial functions. Executive encroachment on the judicial power is to be no more permitted when that power is being exercised by an Article I tribunal than by one created under Article III.

 What the Court holds today should be no more surprising than the observation that it is human nature not to bite the hand that feeds. Congress wanted a military court of last resort composed of civilians who could administer the military code evenhandedly, free from command influence. Objectivity cannot last long, however, when the very people being judged by the court are in turn judging the court and its personnel. Our notions of separation of power simply will not tolerate such encroachment by officials over a tribunal that Congress intended to be independent, and they certainly do not countenance it when the department involved has a history of command interference with quasi-judicial bodies.

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