United States Court of Appeals, District of Columbia Circuit
Robert W. Rodriguez, Petitioner
Virginia S. Penrod, Chief of Staff for the Office of the Under Secretary of Defense for Personnel and Readiness, United States Department of Defense, Respondent
November 14, 2016
Petition for Review of an Order of the Department of Defense
E. Schmitz argued the cause for petitioner. With him on the
briefs was Paul D. Kamenar.
Patrick G. Nemeroff argued the cause for respondent. With him
on the brief were Benjamin C. Mizer, Principal Deputy
Assistant Attorney General at the time the brief was filed,
and Marleigh D. Dover, Attorney. Thomas G. Pulham, Attorney,
entered an appearance.
Before: Srinivasan, Millett, and Pillard, Circuit Judges.
MILLETT, CIRCUIT JUDGE
Colonel Robert Rodriguez, a retired member of the Army
National Guard, claims that the Army unlawfully relieved him
of command in retaliation for whistleblowing, in violation of
the Military Whistleblower Protection Act of 1988
("Whistleblower Act"), 10 U.S.C. § 1034. But
first we must decide where Rodriguez's claim should be
litigated-should he have started in district court or did he
properly proceed directly to this appellate court? The
default rule is that jurisdiction starts with the district
court, and that default rule applies here. We accordingly
order that this action be transferred to the United States
District Court for the District of Columbia.
Whistleblower Act prohibits "tak[ing] (or threaten[ing]
to take) an unfavorable personnel action, or withhold[ing]
(or threaten[ing] to withhold) a favorable personnel action,
as a reprisal against a member of the armed forces" for
making protected whistleblowing communications. 10 U.S.C.
§ 1034(b) (2015). Any member of the armed forces who
believes he was subjected to such reprisal may submit an
allegation to an Inspector General within the Department of
Defense, including within the relevant branch of the armed
services. See id. § 1034(c)(1), (j)(2)(A),
Inspector General who receives the allegation shall then
"determine * * * whether there is sufficient evidence to
warrant an investigation" into the matter. 10 U.S.C.
§ 1034(c)(4)(A). If there is, the Inspector General must
undertake that investigation and report the results to the
Secretary of Defense and the Secretary of the relevant
military department. Id. § 1034(c)(4)(D),
(e)(1). If the Secretary of the relevant military department
then finds a "sufficient basis to conclude" that a
prohibited reprisal has occurred, id. §
1034(f)(1), the Secretary may order corrective action,
id. § 1034(f)(2)-(3).
the Inspector General reports the results of the
investigation, the service member may seek additional relief
from a board for the correction of military records,
established pursuant to 10 U.S.C. § 1552. See
10 U.S.C. § 1034(g). The board reviews the report
prepared by the Inspector General, id. §
1034(g)(2)(A), and subsequently forwards its proposed
decision to the Secretary of the relevant military
department, see, e.g., 32 C.F.R. §
581.3(g)(2)(ii)(B). That Secretary must then issue a final
decision on the matter and take appropriate corrective
action. 10 U.S.C. § 1034(g)(4)-(5).
administrative review is completed, a service member who is
still not satisfied with the disposition of his claim may
submit the matter to the Secretary of Defense for further
review. 10 U.S.C. § 1034(h). Under Section 1034(h), the
Secretary of Defense "shall make a decision to reverse
or uphold the decision of the Secretary of the military