Field v. Brown, s. 76-1781
| Decision Date | 02 January 1980 |
| Docket Number | Nos. 76-1781,78-1336,78-1376 and 78-1716,s. 76-1781 |
| Citation | 198 U.S.App.D.C. 39,610 F.2d 981 |
| Parties | , 26 Cont.Cas.Fed. (CCH) 83,827 Henry C. FIELD, Jr., Appellant, v. Harold BROWN, Secretary of Defense, et al. Henry C. FIELD, Jr., Appellant, v. Harold BROWN et al. Joseph E. HOKER et al., Appellants, v. Harold BROWN. James G. LITTLE, Appellant, v. W. Graham CLAYTOR, Jr., et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Joseph K. Taussig, Jr., Washington, D. C., for appellants.
Gordon C. Rhea, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Michael J. Ryan, Asst. U. S. Attys., Washington, D. C., were on brief, for appellees.
George D. Webster and Michael Lenehan, Washington, D. C., were on brief, for amicus curiae urging reversal.
Also Richard A. Graham, Asst. U. S. Atty., Washington, D. C., entered an appearance, for appellee.
Before McGOWAN and MacKINNON, Circuit Judges, and OBERDORFER *, United States District Judge, United States District Court for the District of Columbia.
Opinion for the Court filed by District Judge OBERDORFER.
These consolidated appeals involve challenges by retired officers of the Navy to the constitutionality of two statutes that restrict their ability to make sales to the armed services. 18 U.S.C. § 281 (1976) forbids retired regular military personnel from "represent(ing) any person in the sale of anything to the Government through the department in whose service he holds a retired status" and provides a possible fine of $10,000 and a two-year term of imprisonment. 1 ] 37 U.S.C. § 801(c) (1976) prohibits the distribution of retirement pay to retired regular officers who engage in "selling, or contracting or negotiating to sell, supplies or war materials" to the armed services and certain other governmental agencies within 3 years after the date of their retirement. 2
Appellants also challenge the procedures adopted by the Department of Defense and by the Navy for monitoring compliance with 37 U.S.C. § 801(c). Specifically, they claim that Department of Defense (DOD) Directive 5500.7, which requires retired regular officers to submit a description of their employment to the Department, 3 and DD Form 1357, which is the "Statement of Employment" required by Directive 5500.7, 4 violate the constitutional privilege against self-incrimination and the Privacy Act, 5 U.S.C. § 552a (1976).
The District Courts hearing these cases below upheld the statutes and procedures in the face of appellants' wide ranging attacks. We affirm.
Appellant Field, who retired from the Navy in August, 1968, began working in December 1973 for Metro Machine Corporation, a company based in Norfolk, Virginia that is primarily engaged in repairing Navy ships. Field served as the "point of contact for contractual matters and inquiries by the Navy." In that capacity he received Navy job orders, responded to Navy inquiries regarding the performance of contracts, prepared price quotations and presented them to the negotiating agent for the Navy, and signed formal Navy bids, proposals, and job orders.
On September 11, 1974, at his employer's request, Field wrote to the Judge Advocate General of the Navy (JAGN) for advice concerning his compliance with 18 U.S.C. § 281, the statute that proscribes retired regular officers from representing persons in the sale of materials to the government under certain circumstances. The Judge Advocate General's Office responded on October 1 that Field's case was being turned over to other authorities "for investigation with a view to resolving the possible penal and civil liabilities, if any, which you may have incurred as a result of your employment." The letter also advised appellant Field that further communication with the JAGN office "presumably would not be in your best interests at this time."
On October 29, 1974 the Navy directly contacted Metro Machine by letter, advising it that Navy personnel would not be permitted to discuss sales matters with Field. Field's employer thereafter excused him from job assignments involving the Navy.
Two days later, on October 31, 1974, Field filed a complaint alleging that § 281 was fatally vague, constituted a bill of attainder, had been effectively repealed by other recent legislation, and unconstitutionally restricted his purported property right to earn a livelihood. He also maintained that Directive 5500.7 and DD Form 1357 violated his privilege against self-incrimination under the Fifth Amendment and Article 31 of the Uniform Code of Military Justice, 10 U.S.C. § 831, by confronting him with the choice of filing the form and risking the use of its contents against him in a prosecution under 18 U.S.C. § 281, or not filing it and risking a court-martial under 10 U.S.C. § 892 for failing to comply with a military regulation. Field later moved to amend his complaint to include claims that § 281 is unconstitutionally discriminatory because it proscribes the activities of retired regular officers, but not those of retired reservists, and that DD Form 1357 violated the Privacy Act.
In an order dated April 7, 1976, the District Court granted appellees' motion to dismiss Field's allegations that 18 U.S.C. § 281 constituted an unconstitutional deprivation of the alleged right to freely choose and earn one's living. The Court at the same time rejected Field's argument that the statute unconstitutionally discriminates between regular and reserve officers and that the statute is impermissibly vague. 5 Later, however, the Court ruled in favor of appellant by finding that DD Form 1357 asked for information that would force Field to incriminate himself under 18 U.S.C. § 281. The Court accordingly enjoined the Navy from demanding Field's compliance with the form to the extent that it "requires (Field) to submit information concerning his private employment which may tend to incriminate him . . . ." See Order of August 26, 1976.
Shortly thereafter, on September 9, 1976, Field requested the District Court to amend its August 26 Order to hold that DD Form 1357 violated the Privacy Act. The Government never responded to Field's motion and on November 12 the Court treated it as conceded. 6
On January 1, 1977, the Defense Department published a new DD Form 1357 providing for Privacy Act disclosure and an explanation of possible consequences of a failure to complete the form. 7 On September 28, 1977, Field moved the Court to require appellees to show cause why they should not be held in contempt. He contended that DOD Directive 5500.7 and the new DD Form 1357 continued to violate the Court's orders of August 26 and November 12, 1976. The District Court denied the motion explaining that it "fail(ed) to state any ground for the contempt order (Field) seeks." Field has appealed from this ruling, and from the District Court's April 7, 1976 Memorandum and Order, which dismissed his claims that § 281 unconstitutionally interfered with his purported right to earn a livelihood and discriminated between regulars and reserves.
Appellant Hoker is a retired regular naval officer who filed a complaint on April 29, 1977 challenging DOD Directive 5500.7 and DD Form 1357 on self-incrimination and Privacy Act grounds. Ruling on cross-motions for summary judgment, the District Court held on January 18, 1978 that the disclosure on the "new" DD Form 1357 8 "remov(ed) the compulsory aspect of the old form found self-incriminatory in Field " and complied with the Privacy Act by soliciting only information "relevant to the subject matter of" 37 U.S.C. § 801(c) and 5 U.S.C. § 5532, and "necessary to the accomplishment of their purposes."
Appellant Little retired from the regular Navy in October 1973. Shortly thereafter, in December, 1973, he secured employment with Sperry Flight Systems, a company that sells aircraft equipment to private corporations and the military. He submitted a DD Form 1357 on October 1, 1975, followed by a more detailed version on October 22, in which he described himself as Sperry's Mid-Atlantic representative.
The Judge Advocate General's Office informed Little in a letter dated January 15, 1976 that it required more information to determine whether he was violating 18 U.S.C. § 281 or 37 U.S.C. § 801(c). The letter warned that although disclosure was voluntary, failure to comply with the request might lead to an investigation, and that in any event JAGN might submit the disclosures to other agencies for possible use in administrative, criminal, or civil proceedings.
Little answered by resubmitting a copy of the October 22 form. The JAGN in turn requested additional information, but Little did not respond.
Little resigned from Sperry Flight Systems on March 20, 1976. Later that year the Navy Investigation Service completed a study of Little's employment with Sperry and the Service concluded that Little had occupied a "sales position" and that his March resignation was prompted by his unsatisfactory job performance. On February 4, 1977, JAGN wrote to the Commander of the Navy Accounting and Finance Center expressing its opinion that Little "violated 37 U.S.C. § 801(c) throughout the period of his employment as a sales representative for Sperry Flight Systems," basing its conclusion in part on information from his DD Form 1357.
Little filed a complaint for declaratory and injunctive relief on March 2, 1977. He challenged 37 U.S.C. § 801(c) as unreasonably restricting his opportunities for earning a living, imposing an excessive forfeiture in violation of the Eighth Amendment, unlawfully discriminating between retired regular officers and retired reservists, constituting a bill of attainder and containing unconstitutionally vague language. He also alleged that the Defense Department's requirement that he submit a DD Form...
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