180 Ct. Cl. 863 | Ct. Cl. | 1967
delivered the opinion of the court:
The plaintiff is a former Lieutenant Commander in the Navy (Supply Corps) whose back pay suit challenges the legality of his discharge for unsatisfactory services and the subsequent disapproval by the Secretary of the Navy of a decision by the Board of Corrections of Naval Becords which would, in effect, have cancelled his removal. The case is now in the pre-trial discovery stage, assigned to Trial Commissioner W. Ney Evans, and is before us by virtue of defendant’s request for review of the commissioner’s order denying defendant’s claim of privilege. (Buies 52(c), 55(a) (8).)
In this interlocutory stage, we restrict our recital of the facts to the bare minimum necessary for understanding the decisions which we make.
The record reflects that the plaintiff, after previous service, often rated outstanding, incurred the disapprobation of his superiors in connection with his transactions in Philippine currency. These occurred during a tour of duty in the Far East, at Subic Bay. A Board of Investigation had reported alleged misconduct on the part of plaintiff. His commanding officer made, on the basis thereof, an unsatisfactory fitness report on him, stated that he no longer trusted him, and recommended that he be transferred to other duty. However, the Pacific Fleet Commander endorsed comment favorable to Weiss on the report of the Board. Ultimately, plaintiff received a reprimand on account of only a single transaction, all the others being eliminated by the Navy JAG. Another subsequent fitness report was also “essentially adverse” in connection with plaintiff’s later performance of sea duty, accusing him of psychosomatic illness incurred whenever the ship was about to leave port.
The court is now in possession of much of the administrative file and no obstacle is offered to discovery of the remainder, except for two documents which the Navy claims are privileged. It says they are work products of lawyers or communications of an advisory nature from subordinates to superiors. The commissioner has ordered the defense to produce these documents for inspection in camera.
At this point we would interject that the Navy has not permitted the Department of Justice Trial Counsel, representing it in this court, to examine the alleged privileged documents. This is only natural, if not indeed unavoidable, as a response to the view of the commissioner expressed in this, and another case, that a party waives a claim of privi
Tbe only authority relied on for sucb a rule is Fireman's Fund Indemnity Co. v. United States, 103 F. Supp. 915 (N.D. Fla., 1952), aff’d 211 F. 2d 773 (C.A. 5th, 1954), cert. denied 348 U.S. 855.
We now consider the alleged privileged documents in their relationship to the litigation before us. We refer to legal issues we expect to arise, not for the purpose of deciding them prematurely, but to show how the documents are or may be related to the case. First comes the document which we will continue to call the Walkup summary. It now appears it was signed by a W. B. Smedberg, III, but we believe it is too late to change the appellation previously employed in the countless papers on file in this litigation. Since the
The statutory authority for discharging officers for unsatisfactory performance of duty is found in 10 U.S.C. Secs. 5708(f) and 6384, which require that boards for promotion of officers shall report the names of officers whose service records indicated unsatisfactory performance of duty and who would not perform satisfactorily in a higher grade. The boards referred to include, under Section 5702 (10 U.S.C. § 5702) boards for promotion and for continuation on the
The Walkup summary, notwithstanding our full acceptance of what Captain Walkup says it does and does not contain, nevertheless appears to be an exhibit which will be utterly indispensable to the adjudication of this case on the merits. If it does not tell us exactly what documents were before the Selection Board, whatever indication it does furnish will apparently be the only information we will have, except in the unlikely event that some Board member could be found having personal recollection, and except for certain admissions made to the Board For Correction of Naval Records. We know from depositions that the applicable regulations and prescribed procedures of the Navy were not so definite and precise that the presumption
The Secretary of the Navy says the document is staff advice of a subordinate to a superior, and no doubt it is. Kaiser Aluminum & Chemical Corp. v. United States, 141 Ct. Cl. 38, 157 F. Supp. 939 (1958). However, before we allowed the claim of privilege in that case we also considered whether it was necessary to obtain the document to avoid a miscarriage of justice. We held that it was not in the case then at bar, and accordingly the claim of privilege was successful. Here we have the opposite side of the coin. We are not concerned with military and diplomatic secrets, which are in a class by themselves. The privilege here is not absolute and must yield to compelling necessity. The court, through one of its judges, offered the Government the opportunity to save the privilege by opening up other means for the court to ascertain the facts it had to have. The Government endeavored to comply with this suggestion but we hold it has not succeeded in doing so. We think the case is such that examination in camera would provide us no further enlightenment. Accordingly, we modify the commissioner’s order respecting the Walkup summary by directing that it must be made available as .part of the administrative file in the same manner as has been employed with the remainder of said file, so far as it relates to Weiss. However, the portion that relates to another officer shall be excised or deleted.
We now turn to the other document for which privilege is claimed. This is described in an affidavit, which we take as •true, by John A. Mclntire, Esquire, a civilian consulting attorney to the Judge Advocate General of the Navy. It is a JAG opinion which was issued pursuant to request by the Under-Secretary of the Navy. The JAG made a legal analysis of the matter contained in the record in the Weiss case that was before the Board For Correction of Naval Records. His opinion included no reference or allusion to facts outside that record. It will be noted that we already
The record in our possession shows that the Under-Secretary referred the favorable (to Weiss) Report of the Board For Correction of Naval Records to the JAG on July 29, 1964 for “comment or recommendation,” and Mr. Mclntire says the JAG responded on September 4th. The Secretary’s decision was signed on that same date. Mr. Mclntire cannily leaves open the possibility the JAG may have advised the Secretary to affirm the Board, but we may disregard that as too unlikely for consideration. This court has not sat for over 100 years without acquiring some judicial knowledge of how things are done in the executive branch. The files we have show a previous tentative oral opinion by the JAG that the Selection Board proceedings on Weiss were legal. The JAG final opinion afforded documentation and justification for the Secretary’s decision, which he needed and waited for.
Plaintiff’s interest in this JAG opinion arises from the fact, as stipulated, that the JAG is a uniformed officer on active duty. Our decision, Proper v. United States, 139 Ct. Cl. 511, 154 F. Supp. 317 (1957), is arguably a precedent that a service Secretary cannot lawfully reject and overturn the recommendations of a Board For Correction of Military Records, in light of a recommendation by a military officer. We construe the Mclntire affidavit, with other records supplied us, as an admission against interest by the defendant that the Secretary ,of the Navy had resorted to the type of advice which can be argued to be within the Proper case. Therefore, the only issue remaining as to that aspect is whether Proper, a 3 to 2 decision, should be followed in this case. We will expect the parties to brief andj argue the question in future proceedings. Construing the Mclntire affidavit, as we do, it is apparent that in this case the Navy has furnished a substitute means for the plaintiff to prove what he was seeking to prove. The JAG opinion would normally be considered
It is so ordered.
4 Moore, Federal Practice (2d Ed. 1966) 1625, states and quotes from Fireman’s Fund but does not approve it or show that it has been followed.