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Rodriguez v. Penrod

United States Court of Appeals, District of Columbia Circuit

May 26, 2017

Robert W. Rodriguez, Petitioner
v.
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

          Argued November 14, 2016

         On Petition for Review of an Order of the Department of Defense

          Joseph 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.

          OPINION

          MILLETT, CIRCUIT JUDGE

         Lieutenant 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.

         I

         A

         The 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), (j)(2)(C).[1]

         The 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).

         After 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).

         Once 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 ...


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