Van Drasek v. Webb

PETITIONER:Van Drasek
RESPONDENT:Webb
LOCATION:U.S. District Court for the Middle District of Florida

DOCKET NO.: 86-319
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: United States Court of Appeals for the Federal Circuit

CITATION: 481 US 738 (1987)
ARGUED: Apr 29, 1987
DECIDED: May 18, 1987

ADVOCATES:
Michael K. Kellogg – on behalf of the Respondent
Stephen G. Milliken – on behalf of the Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – April 29, 1987 in Van Drasek v. Webb

William H. Rehnquist:

We will hear arguments first this afternoon in No. 86-319, John R. Van Drasek v. James H. Webb.

Mr. Milliken, you may proceed whenever you’re ready.

Stephen G. Milliken:

Mr. Chief Justice, and may it please the Court.

The question presented in this case is whether military personnel should be denied judicial review when seeking only equitable relief for constitutional, statutory, or regulatory violations committed by their superior officers.

The question is whether Federal courts will ensure that military services will comply with the commands of the Constitution, of acts of Congress, and of their own regulations.

Mr. Milliken, you’re not contending that the district court didn’t review the constitutional issue on this case, are you?

Stephen G. Milliken:

We contend that the district court more or less commented on the issue, but did not, in the context of this whistle-blower case, give significant protection to the speech engaged in by Captain Van Drasek, and did not employ the independent scrutiny of the entire record requiring… required in First Amendment cases, as this Court said in Bose v. Consumers Union–

Well, you’re really complaining that he didn’t rule in your favor, which isn’t the same thing as to say that you got no judicial review.

Stephen G. Milliken:

–Mr. Chief Justice, the district court failed not only to apply a proper First Amendment scrutiny to the whistle-blower aspect of the case; the district court failed to review at all the substantive elements of the Article 138 complaint brought by Captain Van Drasek, and failed to acknowledge that the district court did have the power to review under the Administrative Procedures Act.

Thus, it is our contention that indeed Captain Van Drasek was denied review of the entire record, by the district court’s refusal to review the 138 record, to review the allegations of command influence, and the failures of investigations upon those complaints.

The district court, indeed, denied Captain Van Drasek jurisdiction over a core element of his claim, and thus, as the BCNR has done, the Board for Correction of Naval Records, did not perform the independent review required where there are matters of protected speech addressing matters of public concern that have been raised by a service member which result in that service member losing the military career to which he has devoted his life.

Will you make some comment, counsel, about whether the case is or is not moot?

Stephen G. Milliken:

This case is not moot because, John Van Drasek, although he is medically disably retired, serves in his retirement as a Captain, at the rank of Captain.

The relief we seek is a return to the Board for Correction of Naval Records with instruction that that body undertake the review of the Article 138 investigation; and that the Federal court remain open to protect the First And Fifth Amendment claims arising on this record; and that then John Van Drasek would be entitled, following that review, to be put before new promotion boards with deletion of the retaliatory material, in order that he could be properly considered for promotion to major.

And thus the claim is not moot.

But may I ask you, in that inquiry, can the review involve any matters that happened after his second failure to be promoted?

I gather the first one back in April of ’82.

Stephen G. Milliken:

The first promotion passover occurred in April of 1982, and that promotion consideration occurred immediately following what it has been uncontested was a killer fitness report, an all-grade-B fitness report given to John Van Drasek by his commanding colonel, Colonel Cooper.

But he had not yet… at that time he hadn’t even started to serve on this review board at the officers’ candidate school, had he?

Stephen G. Milliken:

That is absolutely correct.

The second promotion passover which occurred by a board sitting in May of 1983, did of course follow all of the events raised in the 138 complaint by Captain Van Drasek.

And thus, the second promotion passover, which would trigger under the up-or-out rule, his separation from the corps, needed to take cognizance of all of the circumstances arising prior to the date of that second promotion report.

It is further significant that indeed–

But is anything subsequent to the date of the second passover relevant?

Stephen G. Milliken:

–We would submit that, yes, the fact that Captain Van Drasek is retired from the Marine Corps resulted from his medical disability discharge.

The medical disability discharge processing occurred following a May 23rd letter mailed by Captain Van Drasek’s original civilian counsel, Mr. Steinberg, to the services.

May of ’83?

Stephen G. Milliken:

In May of ’83.

Within three weeks of that letter being sent, at a time when it was requested that the Article 138 proceedings be reviewed, within three weeks, on June 14th, 1983, Captain Van Drasek was ordered to submit to a medical fitness board.

And there is in the record the comment that he was sent there by his commanding general because of–

But is it not true that if you do not succeed in having the second passover reviewed or corrected in some way, that then his failure to be promoted to major was automatic?

I mean, his discharge was going to follow automatically.

Stephen G. Milliken:

–There was no question.

And I only raise the matter of the orders for Captain Van Drasek to report to the medical fitness board as they came so closely on the retention of civilian counsel, as a further retaliatory event.

But even if you’re right about that, that didn’t affect his military status.

Stephen G. Milliken:

No, that is correct, Mr. Justice Stevens.

And I would suggest that there are four very clear events which occurred starting in October, 1981, when John Van Drasek first addressed the question of the denial of equal employment opportunity to pregnant Marines to his commanding colonel, and the immediate following of the killer fitness report.

And it has been uncontested that the bright line all-excellent fitness report was a killer report.

No outstanding marks for the first time.

It was aberrant in relationship to John Van Drasek’s career.

That event was followed by John Van Drasek having failed in the personal face-to-face meeting with his commander to effect the equal employment opportunity for pregnant Marines, in drafting a proposed order for the Marine Corps Development and Education Command which would permit… and this was done after he had consulted with OB/GYN experts to ensure that there was no medical danger to pregnant Marines proceeding with the training at the noncommissioned officers leadership school.

And immediately after the proposal of that order, John Van Drasek received the second fitness report, with a predominance of excellent marks.

But more significantly, within one month, he was demoted from the director of the noncommissioned officers leadership school, to a position as an academics officer; from principal of the school to a teacher.

And thereupon followed his assignment to the administrative discharge board by his commanding general.

General Toomey.

When he voted in the third incident, with the unanimous board, to retain a Marine, despite an alleged drug abuse problem, he was removed from the next administrative discharge board by his commanding colonel, Colonel Cooper, and that is in direct violation of the orders from the commanding general, General Toomey, who had placed him in that position.

There was no power within Colonel Cooper to remove Captain Van Drasek from that administrative discharge board.

When he voted, in the fourth incident, for an honorable discharge to a Marine North, the very same day as that vote occurred, he was transferred out of that command entirely.

He was returned, after a face-to-face with his commanding Colonel Cooper.

Then he broke his leg parachuting, and he was transferred, again demoted, to the position of publications processor.

Thus the incidents, we would submit the district court was wrong in just pointing to the two fitness reports as giving rise to the demotion of Captain Van Drasek.

Because on the fitness report brief, may it please the Court, the fitness report the promotion boards who consider captains rising to the rank of major, see the marks they receive; but they also see their duty assignments and their grades.

And thus, from the time John Van Drasek sat on that administrative discharge board, his career… and all he did was vote his conscience; we’re talking about a situation where an executive officer who institutes charges, if displeased by what a court does, then summarily abuses or removes or takes unlawful action against a court, this is a corruption of a tribunal by command influence.

Mr. Milliken–

Stephen G. Milliken:

Yes.

–I’m having a hard time understanding what legal issues you think we ought to address here.

It isn’t a bit clear to me.

Is it… are you arguing that the courts have an obligation to review Article 138 proceedings?

Stephen G. Milliken:

Yes, Your Honor, in this context, and not only under–

Is that what we’re talking about, the issue of whether Federal courts can review Article 138 proceedings?

Stephen G. Milliken:

–The issue under which that review arises is the First and Fifth Amendment claims, the whistle-blower claims, which–

Well, what if we think the courts below solved the constitutional questions; they just ruled against you.

Then what’s left?

Stephen G. Milliken:

–Independent of the retaliatory action against Captain Van Drasek, there is jurisdiction to review the 138 investigation under the Administrative Procedures Act.

There is also jurisdiction to review the Article 138 investigation under the Fifth Amendment, where the military failed to follow its own regulations in conducting the 138 investigation.

Thus–

You mean, all 138 proceedings?

Stephen G. Milliken:

–Absolutely not, Justice Marshall.

This Court has delineated very bright lines as to when the courts may interfere, or may command the military to obey either a statute or a constitutional provision.

In Feres and in Chappell, the question of damages was found to be inappropriate as it might threaten order and discipline in the military.

But this Court has never held, and indeed, the respondents concede at page 44 of their brief, that the Federal courts remain open, indeed, to directly review constitutional claims, and the decisions in Goldman, Frontlero, Parker, Schlesinger, Huff, and in numerable cases, this Court has said the Federal courts remain open to ensure not only that the military obeys the Constitution, but that they follow their own regulations in carrying out their military responsibilities.

In this case there is no request by Captain John Van Drasek, as he is now retired, to have this Court or any Federal court do other than vindicate constitutional precepts and military regulations.

He did not suggest any method or any way in which a military superior should conduct the properly and purely military activities within the command; he only spoke in favor of upholding the law of equal employment opportunity and in favor of having corruption free tribunals.

And in that regard, those matters are properly of public concern.

And indeed, they should be especially protected matters of speech because John Van Drasek would have been in violation of the law had he not spoken up.

And it is our contention that having spoken up, as the law required him, to suppress dissolute and immoral activities in the Corps that he perceived–

Mr. Milliken, I have to confess, I’m a little bit puzzled about the procedural posture of the case.

As I understood there is really… there are two separate proceedings, the Article 138 proceeding and the BCNR proceeding.

Is that correct, or am I wrong?

Stephen G. Milliken:

–This Court in Chappell… that is correct.

This Court in Chappell v. Wallace said that there were intra-service remedies available to aggrieved service members, and that Article 138 and BCNR, too–

Well, you will have to go a little slower for me, because I am not as familiar with the whole procedure as perhaps I should be.

But you say they are separate procedures, the 138 procedure and the BCNR procedure?

Stephen G. Milliken:

–Justice Stevens, they are separate–

And is the BCNR procedure the one that dealt with the fitness reports and his failure to be promoted?

Stephen G. Milliken:

–The BCNR decision did.

And it also found that it did not have jurisdiction to review the Article 138 proceedings.

All right.

And you’re asking us… basically, you’re asking for review of the Article 138 proceeding, as I understand it?

Stephen G. Milliken:

In both forms.

Stephen G. Milliken:

Certainly, BCNR, by grant of Congress, 10 U.S. Code Section 15-52(a) said the boards for correction of military records are empowered to correct any military record to remove an injustice.

But if we should conclude that there was enough evidence, and there was no procedural defect in the BCNR proceeding dealing with the fitness reports and the failed two pass-overs, doesn’t that put an end to the case insofar as we’re dealing with his military status?

And then there’s a separate problem about whether he had some kind of right to an apology and all the rest of it under the 138 proceeding?

Stephen G. Milliken:

Justice Stevens, I would say no, only because it was not the grade B marks on the fitness report alone which led to the promotion passover.

John Van Drasek came–

Well, the BCNR agrees with you; there were other things, that’s right.

But they concluded that the passovers were proper, as I understood it.

But there were other reasons.

He had a couple of other situations in which his commanding officer thought he would have preferred to have a different person in the assignment.

Stephen G. Milliken:

–And indeed, the Board for Correction of Naval Records held, and this is on page 19 of the Joint Appendix, that the evidence of record… that there is substantial additional evidence of record raising questions about the judgment and fairness of the CO-OCS, that’s Colonel Cooper.

And in that connection the Board finds the evidence sufficient to establish that the CO-OCS may well have allowed petitioner’s voting on the administrative discharge board to influence his decision to seek petitioner’s transfer.

Thus in the greater review–

Then they went on to and said it wasn’t critical to the decision, did they not?

Stephen G. Milliken:

–They said that because the fitness report, the original fitness report prepared by Colonel Cooper had excellent marks, that it was an excellent fitness report.

It has been uncontested in the record of evidence before that board that an all-excellent bright line fitness report, where this individual had never previously failed to have outstanding marks contained within his fitness–

Where are you reading from?

What was the page cite?

Stephen G. Milliken:

–Page 19 of the Joint Appendix, Justice Scalia, beginning on the second line with

“the board notes that the evidence. “

and continuing down to the word nevertheless.

And I would suggest that it is the presentation of this substantial evidence of record that there was a causal connection between the retaliatory action and this officer speaking out that gives rise to the First Amendment standards of review that apply to a whistle-blower case, just as in Connick v. Myers, in Pickering, in Mt.

Healthy v. Doyle.

And indeed, in Mt.

Healthy v. Doyle, that once that evidence is adduced–

Yes, but this is not on the whistle-blower issue; this is on the command influence issue.

Stephen G. Milliken:

–They are one.

And the independent review required of a Federal court must embrace all of the cause and effect, the action-reaction events, which lead to the separation of the employee, as certainly his demotion from director of the noncommissioned officers leadership school down to a paper processor, publications officer, was such a marked reversal of an otherwise outstanding career.

And all of those demotions–

Yes, but the last sentence in the paragraph is, finally the board notes that neither of these reports could have been influenced by petitioner’s voting on the ADB because he was not appointed to serve on the ADB until after the reports had been submitted.

Stephen G. Milliken:

–Justice Stevens, there is absolutely no question.

Stephen G. Milliken:

And with regard to those fitness reports, it is our contention that they were in retaliation for John Van Drasek having spoken up and complained that pregnant Marines were not getting equal employment opportunities.

So there are two matters which John Van Drasek addresses, both of them matters of public concern: EEO violations, and command influence, that most pernicious element which principally gave rise to the promulgation of the United States… the Uniform Code of Military Justice.

And I would suggest that in retaliation for speaking up on behalf of pregnant Marines, John Van Drasek received retaliatory negative fitness reports, a killer fitness report which led to his first promotion passover.

But in the ensuing months, in the ensuing year between that first promotion passover and the second promotion passover, that Colonel Copper, in displeasure at John Van Drasek’s having done no more than any judge should do, and that is, vote his conscience and pursue his obligations as a member of a court, a board, as he was ordered to do by his commanding general, then finds himself demoted from the director of the school down to a position pushing papers; demoted first to teacher, then to publications processor.

In that circumstance, we would submit that the court, the reviewing BCNR and then the reviewing Federal court, should undertake the First and Fifth Amendment review required in a whistle-blower case to look at the entire record of events, all of the lawful actions taken by John Van Drasek, everyone of them required of him by law, and all of the unlawful retaliatory actions undertaken against him, both in connection with the EEO giving rise to the retaliatory fitness reports, and in regard to the complaints about command influence giving rise to his removal, transfer and demotions.

In that respect, we would submit that under Mt.

Healthy v. Doyle, that there is a shift in the burden.

And at that point… and in that case Mr. Chief Justice Rehnquist wrote that the burden shifts to the employer to show that but for the matters of protected speech, and any action taken as a result thereof, that that individual would have been separated anyway.

There is no evidence in this record that any of the disabling-events in Captain Van Drasek’s career arose out of anything but retaliation for his lawful activities.

Thus, you have a situation where someone speaks out to support the law, and their career ends.

Well, Mr. Milliken, are you suggesting that the same standard governs review of what you describe as a whistle-blower claim within the military as governs in a schoolteacher’s claim as in Mt.

Healthy?

Stephen G. Milliken:

Mr. Chief Justice, there is not the same test of review, but it is similar.

And a combination of those cases and the military cases that have been decided by this Court reveals their similarity, and reveals the adjustment necessary to protect the independence, the deference which the civilian world must show to the military to preserve order and discipline.

In the case of a whistle-blower case arising in a government agency, there is a balancing which has been written to require an evaluation of the degree of speech, the protection to be accorded it, and the degree of intrusion in the service which the agency is providing.

In the military’s case, it would be appropriate in that balancing to ensure that the judges, to quote from Orloff v. Willoughby, are not given the task of running the Army.

There can be no determination by a court as to how properly a weapon is to be handled, or other particularly military determinations.

However, here we’re talking about equal employment opportunity.

We’re talking about command influence, corruption of a court.

Who better than a court to decide that a court should not be corrupted by the executive–

So what difference is there in the standard of review in the case of your client as opposed to Mr. Doyle in the Mt.

Healthy case?

Stephen G. Milliken:

–The difference in the standard of review is that where there is a determination made that interference in a purely military determination will hinder the orderly functioning of the military services and its combat readiness, that the court shouldn’t interfere.

But where there are constitutional, statutory and regulatory violations, and all the court is asked to do is to have the military obey the law–

Well, you say, in effect, there’s no difference then?

Because I take it in any of these kind of whistle-blower claims, as you describe them, there is a constitutional claim?

Stephen G. Milliken:

–Mr. Chief Justice, in the case of Parker v. Levy, this Court undertook to determine the constitutional vagueness of statutes in the military, and determined that the peculiarly important element of a military officer following the requirements of his service required that the Court not determine that a statute was unconstitutionally vague, even if it might have been so determined in a civilian forum.

That’s the best example I can think of where a court can separate the requirements of a military officer from the normal lawful requirements that the military obey its own laws and the laws of the United States.

Well, I think that a schoolteacher has a tiny bit more of the right of freedom of speech than a military private has; am I right?

Stephen G. Milliken:

The Court may be right.

Stephen G. Milliken:

And this Court’s decision–

I didn’t say the Court.

I said am I right?

Stephen G. Milliken:

–I cannot disagree with that proposition.

And certainly–

Well, then, there is a difference.

Well, why don’t you recognize that there’s a difference?

Stephen G. Milliken:

–There is a difference, and certainly this Court has held that the approval, prior approval by commanders of circulating petitions to Congress, and that the ability to say, for example, as was said in the Parker case by this doctor, to all black officers, you should not go and serve in Vietnam because it’s a racist war, that that was found to be properly subject to court martial proceedings and the statute not unconstitutionally vague, because you cannot have an individual counselling individuals who are involved in the service against going to war; that the military can determine what wars to fight and how to fight them, and you can’t have somebody expressing dissidence which undermines that authority.

Nothing in what John Van Drasek said or did during the course of his career addressed a policy determination or an executive function of the military.

All he spoke to was the following of the Navy regulations and the Marine Corps EEO manual in regard to allowing pregnant Marines to attend the school he was made director of.

And all he spoke about in concern over the tribunals was that the commander cannot dissuade subordinates from testifying in trials, that the commander cannot tell reviewing courts that they are to accept, without fact finding, specific pieces of evidence.

Thus, where you have the bright line separation between a prohibition against damages action, there is no prohibition… and this Court has never held, and should not now hold… that equitable relief is unavailable to a member of the military service in the civilian courts.

Additionally, where as in Gilligan–

Mr. Milliken?

Stephen G. Milliken:

–Yes, Justice Scalia.

The Administrative Procedure Act excludes from judicial review… it says, agency means each authority of the government of the United States, but does not include courts martial and military commissions.

Now, why would Congress not want us to review courts martial and military… either one of these bodies, would you consider either one of them a military commission.

Stephen G. Milliken:

Certainly, not, and this Court held–

Well, why would Congress… I presume that the decisions that can be made by court martials and military commissions are even more significant than the decisions that can be made by this body, by these bodies?

Stephen G. Milliken:

–Courts martial have review independent of the military through the Court of Military Appeals, which was specially created so that there would be a civilian review of criminal prosecutions, criminal determinations made within the military services.

And in regard to–

What about commissions?

Stephen G. Milliken:

–Military commissions have been determined by this Court, and by all the commentators that I have been able to find, to be exclusively the war courts.

In that case of Madsen v. Kinsella, the determination was so made, and that was a military commission in Germany.

I’m just curious as to why you think this is reviewable in Article III courts, and yet Congress saw fit to exclude courts martial and military commissions from Article III courts, which are very… you know, I assume that review in an Article III court is more significant than review anywhere else.

And–

Stephen G. Milliken:

That’s correct.

–it’s been excluded specifically for courts martial and military commissions.

Yet you say that these kind of determinations can be for a whistle blower, never mind for someone who’s been court martialed, can be trotted off to Article III courts.

It just seems strange to me.

Stephen G. Milliken:

The administrative… Justice Scalia, the Administrative Procedures Act was enacted in 1947.

The Uniform Code of Military Justice, which embraces 10 U.S. Code 938, the complaint of wrongs enabling provision in this case, was promulgated in 1951.

Congress knew, by sending to the Secretary of the Navy, that the… of all Article 138 complaints for final review by the Secretary of the Navy, that it would come within the Administrative Procedures Act, or it would have made it specifically unreviewable, as it did in the case of–

There’s no “s” in that, by the way.

It’s the Administrative Procedure Act.

Stephen G. Milliken:

–Thank you, Justice Scalia.

I have a special love for that.

And when people say it wrong, it gets me.

Stephen G. Milliken:

My point is simply that Congress knew exactly what it was doing in those two statutes, and specifically excluded review.

And the very specific exclusion of review, under this Court’s determination in Lindahl, includes in those matters not specifically left out.

And this Court would have to legislate if it were to exclude that matter.

I would ask to reserve what little time I have left for rebuttal.

William H. Rehnquist:

Thank you, Mr. Milliken.

We’ll hear now from you, Mr. Kellogg.

Michael K. Kellogg:

Mr. Chief Justice, and may it please the Court.

As the preceding colloquy indicates, there is some uncertainty as to the precise question presented in this case.

In his petition, petitioner stated the question at issue to be, whether citizens should be barred from all redress in civilian courts for constitutional wrong suffered in the course of military service.

Now we explained in our brief why we felt that question was not in fact presented here.

The reason is simple, as Chief Justice Rehnquist pointed out in the preceding colloquy, the district court did entertain and decide petitioner’s constitutional claims.

Essentially, he raised two claims.

First, he charged that the military’s processing of his Article 138 complaint violated his Fifth Amendment due process rights.

The district court specifically considered and rejected that claim, in its opinion at page A6 of the petition, the court said, the court finds that the processing of plaintiff’s Article 138 complaint comports with constitutional requirements.

The investigation, report of findings, and remedial action, satisfied the minimum standards of procedural due process.

That finding was in turn affirmed by the Court of Appeals, and petitioners offered no reason to think that it is in any way incorrect.

He has in fact failed to specify any procedural defect in the Article 138 proceeding.

Petitioner’s second constitutional claim was that his First Amendment rights were violated.

That claim was also considered and rejected by the district court on the same page of its opinion, when it said, plaintiff’s allegations of First Amendment violations similarly do not warrant relief.

Now, in his reply brief, petitioner appears to acknowledge that his constitutional claims were decided by the district court.

He argues, however, that the court didn’t scrutinize the record, the entire record, before deciding those constitutional claims.

Now the basis for that claim is not altogether clear, but he appears to rely on the fact that the court declined to review the Article 138 proceeding for substantive correctness, and draws from that the conclusion that the court must therefore have truncated its review of the constitutional claims by ignoring any facts relevant to the Article 138 proceeding.

Michael K. Kellogg:

In other words, the court shut its eyes to crucial facts underlying the constitutional claims before it decided those claims.

Now there’s no basis for that argument whatsoever in the record.

The district court specifically stated that it was reviewing the record for constitutional violations, and that it found none.

In the course of its opinion, it canvassed all the relevant facts.

Now admittedly, its discussion of the constitutional claims was brief.

But there’s a very simple explanation for that.

The district court discussed in some detail, in the context of the review of the BCNR proceedings, petitioner’s claims that his fitness reports were biased, and that he was improperly passed over for promotion.

The district court discussed those claims in detail, and affirmed them in finding that the BCNR’s decision was supported by substantial evidence.

So when it came to the constitutional claims, the underlying factual basis for those claims had already been eliminated.

May I just ask you this, Mr. Kellogg, what do you make of the Roman numeral I in the district court’s opinion: This court lacks jurisdiction to review the merits of plaintiff’s Article 138 claim?

Isn’t there some tension between that and going ahead and reviewing the merits and deciding them?

Michael K. Kellogg:

We understand that… what the district court meant by that was that you do not get APA review of an Article 138 proceeding for substantive and procedural correctness, as if it were the decision of any other Federal agency, for example, to determine whether the investigation was carried out in accordance with military regulations, whether the investigating officer interviewed enough witnesses, whether he weighed the credibility of the witnesses properly and reached proper results.

What the district court did in the course of discussing Article 138 specifically address the constitutional claims.

It declined only to address the substance of the Article 138 proceeding.

Well, do you agree that the district court did have jurisdiction to review the constitutional claims asserted in the 138 proceeding?

Michael K. Kellogg:

Well, in fact, no.

In fact we think–

So in other words, the portions of the opinion on the merits that you rely on are portions that he shouldn’t have written under your view; is that right?

Michael K. Kellogg:

–In effect.

Our position would be that under this Court’s precedents, the only cases that a military serviceman can bring directly to Federal court are cases involving statutes that are alleged to be unconstitutional on their face.

But when he’s arguing that he particularly, in the circumstances of his case, was subjected to unconstitutional retaliation, that he’s required to exhaust his administrative remedies prior to doing so.

And that therefore, the district court should have confined itself to reviewing the decision of the BCNR, which knocked out the factual underpinnings of his constitutional claims.

Except that the BCNR, as I remember it, didn’t really deal with the whistle-blower claims.

Am I wrong on that?

It’s hard to keep all this straight.

Michael K. Kellogg:

Well, it’s necessary to sort of separate out the three sets of events.

Before you do that, could you tell me whether you think the BCNR dealt with the whistle-blower claims?

Michael K. Kellogg:

Yes.

You think they did?

Michael K. Kellogg:

Two-thirds of them.

Michael K. Kellogg:

The petitioner claims that he was wronged in three different ways.

First, that his first two fitness reports, and his first promotion passover, were in retaliation for his complaints that he made about sex discrimination at the officers candidates school.

Second, he claims that he was transferred out of the officers candidate school, and removed from the administrative discharge board in retaliation for his votes as a member of the administrative discharge board.

Third, he claims that his second promotion passover was in retaliation for having filed the Article 138 complaint.

Now, the BCNR specifically addressed and rejected the first and the third of those claims.

In other words, it found that the fitness reports were not biased, and the first promotion passover was not in anyway improper.

And it found that the second promotion passover was not in retaliation for the filing of the Article 138 complaint.

With respect to the transfer out of OCS and the removal of petitioner from the administrative discharge board, the BCNR commented upon those events, in the course of its discussion; but those events were not specifically relevant to the claims that he was wrongfully passed over for promotion.

So in other words, the BCNR addressed them as sort of background material perhaps coloring–

He probably couldn’t have presented those to the board, could he?

Michael K. Kellogg:

–No, because they wouldn’t be reflected in his service record in that respect.

Yes, yes.

So this… that particular claim was just going to go unreviewed, even administratively.

Michael K. Kellogg:

Well, I suppose… I’m not exactly sure–

Your argument about exhausting administrative remedies, that claim was exhausted.

Michael K. Kellogg:

–As far as the–

Transfer.

Michael K. Kellogg:

–The transfer?

Yes, that that was exhausted.

And so why he can’t he have that action reviewed?

Michael K. Kellogg:

Because it’s now moot.

Suppose it weren’t?

Michael K. Kellogg:

Then under this Court’s decision in Orloff v. Willoughby, the propriety of duty assignments is not a fit matter for judicial review.

And it… what would it be, a jurisdictional thing?

Michael K. Kellogg:

It would be more a–

Or just not a cause of action?

Michael K. Kellogg:

–It would be more a question of prudence rather than power of the court.

So the complaint is filed, and you say, sorry, but this isn’t for us?

Michael K. Kellogg:

In effect, that the settled reluctance of the courts to intervene in internal military affairs makes the propriety of the duty assignment not an appropriate consideration.

Of course, if you win on that… if that’s true, what about the other claims?

Michael K. Kellogg:

The other claims, he could obtain review ordinarily on review of a BCNR decision, and in fact he did so in this case.

And he did.

Michael K. Kellogg:

The district court affirmed the findings of the board as supported by substantial evidence, and the Court of Appeals in turn affirmed that, and petitioner did not seek certiorari on the question of whether the board’s decision was in fact supported by substantial evidence.

So Justice Stevens’ point during the earlier colloquy, that in effect, those claims are out of the case now, is correct.

The fitness reports, the promotion passovers, are no longer relevant to these proceedings.

That leaves his claims that he was improperly transferred out of the officers candidate school, and removed from the administrative discharge board.

But as we explained, those claims are moot, because petitioner is no longer a member of the Marines.

He has received a retirement disability–

And they aren’t reviewable anyway?

Michael K. Kellogg:

–Pardon?

And they aren’t reviewable anyway?

Michael K. Kellogg:

And they aren’t reviewable anyway.

In sum, therefore, petitioner now acknowledges that the question upon which the Court granted certiorari is no longer presented in this case.

The question which he has tried to put in its place is fact bound, and in any event, depends upon a misreading of the opinion below.

Furthermore, there’s no longer a justiciable controversy before the Court.

Under the circumstances, we would recommend that the petitioner for writ of certiorari be dismissed as improvidently granted.

Unless the Court has any further questions–

William H. Rehnquist:

Thank you, Mr. Kellogg.

Mr. Milliken, you have three minutes remaining.

Stephen G. Milliken:

Mr. Chief Justice, and may it please the Court.

Captain Van Drasek has had his claim parsed by the BCNR, by the district court, by the officer of the Solicitor General.

And what he seeks is merely to have his First and Fifth Amendment claims reviewed on one whole factual record, in one court, at one time.

Whether this Court would grant relief by returning John Van Drasek to the Board for Correction of Naval Records, with instructions that the Board for correction of Naval Records is empowered to review the elements of the 138 investigation which pertain to his separation from the Marines, or whether that power lies in the district court, it is the petitioner’s contention that to bar First Amendment whistle-blower cases from review is to effectively close the doors to the military.

And where relief is only sought of an equitable nature, that then this Court would not have constitutional power exercised by the Federal courts over the military.

Captain Van Drasek asks that the matter be returned to the BCNR or the district court.

Captain Van Drasek in both courts made very clear that the appointment by General Carey of Colonel Lawson to interpret the complaints against Colonel Cooper, the appointment of a peer in the same command, was violative of the JAG manual; was a procedural impropriety which made the 138 investigation void from the outset; that the failure to do a formal hearing, that the failure to appoint counsel, indeed, to tell John Van Drasek, that he could talk to a JAG lawyer, but he couldn’t establish an independent attorney-client relationship with a lawyer; all of those procedural irregularities have been pled by the petitioner throughout.

Thus, he has done nothing other than by the law.

He has gone to every court which this Court suggested in Chappell v. Wallace.

He has come before this Court, and been granted an opportunity once again to say that he would like to have his claim heard in its entirety under the Constitution at one time in one place.

Thank you very much.

William H. Rehnquist:

Thank you, Mr. Milliken.

The case is submitted.