Van Drasek v. 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

Michael K. Kellogg - on behalf of the Respondent
Stephen G. Milliken - on behalf of the Petitioner

Facts of the case


Media for Van Drasek v. Webb

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--