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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 ...

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