Carmichael v. U.S., 01-5034.

• Decision Date: 12 August 2002
• Docket Number: No. 01-5034.,01-5034.
• Citation: 298 F.3d 1367
• Parties: David Alan CARMICHAEL, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

298 F.3d 1367

David Alan CARMICHAEL, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.

No. 01-5034.

United States Court of Appeals, Federal Circuit.

August 12, 2002.

COPYRIGHT MATERIAL OMITTED

Herbert William Titus, Troy A. Titus, P.C, of Virginia Beach, VA, argued for plaintiff-appellant.

Lauren S. Moore, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for defendant-appellee. With her on the brief were Stuart E. Schiffer, Acting Assistant Attorney General; David M. Cohen, Director; and Robert E. Kirschman, Jr., Assistant Director. Of counsel on the brief was Major Eugene H. Robinson, Jr., Litigation Attorney, United States Marine Corps, Office of the Judge Advocate General. Of counsel was Hagen W. Frank, Department of the Navy, of Washington, DC.

Before LOURIE, Circuit Judge, ARCHER, Senior Circuit Judge, and DYK, Circuit Judge.

ARCHER, Senior Circuit Judge.

David Alan Carmichael ("Carmichael") appeals the order of the United States Court of Federal Claims dismissing for lack of jurisdiction his claims for back military pay and reinstatement stemming from his discharge from the United States Navy. Carmichael v. United States, No. 99-958C (Ct.Fed.Cl. Oct. 31, 2000). Because the trial court erred in holding that the Navy's religious accommodation procedures were irrelevant to the voluntariness of Carmichael's separation, we vacate and remand.

Factual Background

Carmichael enlisted in the Navy in a delayed entry program on June 27, 1980. He served for sixteen years, reaching the rating of Chief Petty Officer, and was awarded a number of medals and commendations.

Upon Carmichael's entry into service, the Navy assigned him a Military Personnel Identification Number (MPIN), which corresponded to his Social Security number. By October 1, 1996, while he was assigned to Destroyer Squadron Thirty-Two, Carmichael determined that being associated with a Social Security number was against his religious beliefs. He believed it to be the "Number of the Beast" discussed in Chapter 13 of Revelations in the New Testament of the Bible. He submitted a request to the Commissioner of Social Security stating his religious convictions and requesting that she rescind the Social Security number that was assigned to him.

In November 1996, Carmichael advised Lieutenant Commander Jack Roesner, the Chief Staff Officer ("CSO") of Destroyer Squadron Thirty-Two, of his religious conviction that he could no longer be associated with a Social Security number as his MPIN. On or about November 6, 1996, in accordance with chain of command procedures, Carmichael submitted to CSO Roesner a letter addressed to Carmichael's commanding officer, Captain Joseph Benkert, Commander of Destroyer Squadron Thirty-Two, which included various enclosures. In the letter, Carmichael asked Captain Benkert to submit to the Chief of Naval Personnel ("CNP"), Admiral Daniel T. Oliver, an enclosed letter of request to change Carmichael's MPIN. Carmichael's request letter stated his religious conviction, enclosed a copy of his letter to the Social Security Administration which further explained his religious beliefs, and asked that his MPIN be changed to "000-00-0000." CSO Roesner refused on several occasions to forward the letter to either the commanding officer or to the CNP. On December 2, 1996, Carmichael finally sent his request directly to the CNP.

The Deputy CNP, on behalf of the CNP, denied Carmichael's request in a letter dated February 11, 1997. The Deputy CNP did not refer to Carmichael's letter as a request for religious accommodation, nor did he address the Navy's religious accommodation policies. Instead, the Deputy CNP denied Carmichael's request by reference to Executive Order 9397 (Nov. 22, 1943) (requiring the use of Social Security numbers where a government agency establishes a new system of permanent account numbers), Secretary of the Navy Notice 1070 (Dec. 1, 1971) (generally establishing the Social Security number as the sole MPIN for naval non-retired personnel), and Naval Military Personnel Manual article 4610100 (requiring that the MPIN assigned to naval personnel upon first entering the Navy be the "Social Security Number (SSN) shown on the member's OA-702, Social Security Account Number Card"). The Deputy CNP stated that it would be inappropriate to alter Carmichael's military records until the Social Security Administration formally acknowledged "000-00-0000" as his Social Security number. The Deputy CNP further noted that when and if the Social Security Administration responded to Carmichael's request, Carmichael could resubmit his MPIN request for more favorable consideration.

In the interim, Carmichael was transferred to the Afloat Training Group, Surface Ship Acoustic Analysis Center ("SSAAC"). On March 6, 1997, the Officer-In-Charge at the SSAAC authorized Carmichael's request for enlistment extension. Carmichael was presented with a re-enlistment contract on March 12, 1997, identifying him with his Social Security number, and he was advised to sign the contract "as is." Carmichael stated that he could not sign the contract in accordance with his religious convictions as long as it contained his Social Security number. Instead, he swore a verbal oath committing to fulfill his "obligated service requirement." Carmichael again was presented with the same contract on March 17, 1997, and again he refused to sign it. That day, he was honorably discharged from the Navy because the terms of his enlistment had expired. His service records indicate that his separation was voluntary, and he was not recommended for re-enlistment.

On May 6, 1998, Carmichael submitted an application to the Board of Correction of Naval Records ("BCNR") claiming that he had been wrongfully discharged for failure to grant his request for religious accommodation, and that his separation incorrectly was listed as voluntary. The board chairman requested the Navy Judge Advocate General ("JAG") to review the case to determine if Carmichael's request to change his MPIN should have been accommodated. The Navy JAG responded that no accommodation was necessary. Therefore, the BCNR denied Carmichael's request.

Carmichael filed a complaint with the Court of Federal Claims, asserting, among other things, that he was wrongfully discharged, and that the Navy erroneously listed his discharge as "voluntary." The Court of Federal Claims granted the government's motion to dismiss Carmichael's complaint for lack of jurisdiction because it found that he did not rebut the presumption that his discharge was voluntary. It found that Carmichael did not demonstrate any coercive or wrongful action by the Navy concerning his request to change his MPIN because the correct person (the Deputy CNP under the authority of the CNP) ultimately made the decision as to Carmichael's request under the proper law (Executive Order 9397, Secretary of the Navy Notice 1070 and Naval Military Personnel Manual article 4610100). On this basis, the court stated that whether or not Carmichael's letter was a religious accommodation request did not affect the disposition of the case. The trial court also found that Carmichael had alternative courses of action to being discharged, as he could have waited to resubmit his request to the Navy when and if the Social Security Administration acted on his request to that agency. Finally, the court stated that Carmichael did not address the question of whether he involuntarily accepted the government's terms of discharge.

Discussion

A trial court's ruling on its own jurisdiction is a question of law which we review de novo. See Moyer v. United States, 190 F.3d 1314, 1317-18 (Fed.Cir. 1999). If a discharge from service is voluntary, then the Court of Federal Claims lacks jurisdiction to review the discharge or any back pay damages claims. See id.; Tippett v. United States, 185 F.3d 1250, 1255 (Fed.Cir.1999); Sammt v. United States, 780 F.2d 31, 33 (Fed.Cir.1985).

A presumption of voluntariness generally exists where an employee tenders his resignation or retires; the plaintiff bears the burden of coming forward with evidence to demonstrate that his resignation or retirement was not voluntary. Tippett, 185 F.3d at 1255; Christie v. United States, 207 Ct.Cl. 333, 518 F.2d 584, 587 (Ct.Cl.1975). This presumption of voluntariness logically should extend to a military service member's honorable discharge upon the expiration of the terms of his enlistment where the member refuses to execute an authorized re-enlistment contract. Cf. Tippett, 185 F.3d at 1255 (applying presumption of voluntariness to a service member's request for discharge). The trial court therefore correctly presumed that Carmichael's discharge from service was voluntary.

Nevertheless, an otherwise voluntary discharge is rendered involuntary if, among other things, it is obtained under duress or coercion. Id.; see also Scharf v. Dep't of Air Force, 710 F.2d 1572, 1574 (Fed.Cir.1983). In order to show that his discharge was the result of duress or coercion, Carmichael must demonstrate that: (1) he involuntarily accepted the terms of the government; (2) circumstances permitted no other alternative; and (3) said circumstances were the result of the government's coercive acts. See Christie, 518 F.2d at 587. In applying this test, duress or coercion is measured by an objective evaluation of all the facts and circumstances. Id. The government's failure to follow its own rules may constitute coercive action sufficient to result in an employee's involuntary discharge. See Roskos v. United States, 213 Ct.Cl. 34, 549 F.2d 1386, 1389-90 (Cl.Ct.1977) ("An action is not voluntary if it is produced by government conduct which is wrongful." (citations omitted)).

Carmichael argues that the Court of Federal Claims erred by assuming that any failure by the Navy to follow its religious accommodation procedures concerning Carmichael's request to...