Mundy v. Weinberger

• Decision Date: 28 January 1983
• Docket Number: Civ. A. No. 80-2096.
• Citation: Mundy v. Weinberger, 554 F.Supp. 811 (D. D.C. 1983)
• Parties: R. Ward MUNDY, Plaintiff, v. Caspar W. WEINBERGER, et al., Defendants.
• Court: U.S. District Court — District of Columbia

554 F. Supp. 811

R. Ward MUNDY, Plaintiff, v. Caspar W. WEINBERGER, et al., Defendants.

Civ. A. No. 80-2096.

United States District Court, District of Columbia.

December 23, 1982.

As Corrected January 28, 1983.

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James K. Stewart, Charles B. Wayne, Schwalb, Donnenfeld, Bray & Silbert, Washington, D.C., for plaintiff.

William H. Briggs, Jr., Asst. U.S. Atty., Washington, D.C., for federal defendants and individual defendants Cooke, West, Hamilton and Siemer.

Scott Blake Harris, Williams & Connolly, Washington, D.C., for defendant Kester.

OPINION

HAROLD H. GREENE, District Judge.

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.

I

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,¹ 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,² Congress placed it in the Department of Defense "for administrative purposes only." Id. at § 867(a)(1).³ 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.⁴ Chief Judge Albert B. Fletcher, Jr., in making the appointment,⁵ 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.⁶ 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."⁷ Fletcher also asked DOD to seek a waiver of the Whitten Amendment.⁸

Despite the chief judge's request and his expression of urgency,⁹ 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.¹⁰ 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 October¹¹ and a letter to Kester in December,¹² DOD had taken no steps by early 1979 to advance Mundy to either a GS-16 or GS-17.¹³

At this point the Civil Service Reform Act of 1978¹⁴ 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.¹⁵ 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.¹⁶ 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, 1979.¹⁷ 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.¹⁸ Despite a final request by Chief Judge Fletcher dated June 19, 1979, Mundy was never included within the SES nor promoted above a GS-15.¹⁹

On August 18, 1980, Mundy filed this lawsuit; later, on May 30, 1981, he resigned.²⁰ 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 defendants²¹ and an award of back pay for their obstruction of his promotion; and (2) damages against the individual defendants,²² under both Bivens v. Six Unknown, Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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.

II

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 River²³ from the bulk of the U.S. government's principal offices does not deprive this lawsuit, which is largely a dispute between high-ranking federal officials, of its solid grounding in the District of Columbia.

To determine where a claim arose, a court should engage in a "common sense appraisal" of "events having operating significance in the case." Lamont v. Haig, 590 F.2d 1124, 1134 (D.C.Cir.1978). Venue is proper "if the activities that transpired in the forum district were not insubstantial in relation to the totality of events giving rise to the plaintiff's grievance and if the forum is generally convenient for all litigants." Lamont, supra, 590 F.2d at 1134 n. 62.

Plaintiff's former place of employment, the Court of Military Appeals, is located in the District of Columbia. This is especially significant considering that his grievance stems directly from his employment and from the decisions of others about that employment. The defendants' involvement in this suit may well have consisted primarily of decision-making in their Pentagon offices,²⁴ but this decision-making was not the formulation of general policy that might affect scores of persons. It was the formulation of one decision, the results of which affected one person, holding a unique job, known to be working in a one-of-a-kind federal office located in Washington, D.C., precisely because that city is the nation's capital. Indeed, the Pentagon, too, is located where it is because of its proximity to the nation's capital; it even uses a Washington, D.C. mailing address. For these reasons, the Court finds that venue was proper here. That is not to say that all activities occurring in any U.S. government office located near the District of Columbia may give rise to venue in this District. Suffice it to say that the Pentagon is hardly "any" federal office. Here, the plaintiff's grievance and the acts that gave rise to it are inextricably bound up with the District of Columbia in its role as the nation's capital. Sufficient connection with the District exists that venue is proper here with respect to the individual defendants, "notwithstanding that venue might also lie in other districts." Lamont, supra 590 F.2d at 1134 n. 64. The Court observes, finally, that to uphold venue in the District is not inconvenient for the defendants. The District of Columbia is not significantly less accessible to an individual who lives or works in the Eastern District of Virginia—...