Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Last night was the deadline for the government's response to the lawsuit filed by the Military Religious Freedom Foundation on behalf of Army Spc. Jeremy Hall. They made it with a few hours to spare, filing an absolutely immense motion to dismiss the case. They essentially make two arguments; the first one is absurd but the second one may not be. The first argument they make is that Hall lacks standing to sue because the specific incident is not likely to occur again:
As an initial matter, Plaintiffs lack standing to seek prospective injunctive relief -- the only relief they request -- because they cannot establish that any injury allegedly caused by Major Welborn is likely to recur in the future.
This is precisely the kind of ridiculous standing argument that I despise, but which courts all too often take seriously. As absurd as it is, the court may well rule in favor of it. I'll be curious to see the response of the MRFF attorneys. The second argument seems stronger to me:
In addition, Specialist Hall's failure to exhaust his intramilitary remedies bars review of his claims under the doctrine of Mindes v. Seaman
I'm not sure that reference really supports this argument because in that case, the plaintiff did exhaust all possible institutional remedies within the military. The ruling makes this clear:
After traversing all available intraservice procedural reviews-ending with a denial of relief by the civilian Air Force Board for Correction of Military Records (Board)-Mindes filed a complaint seeking declaratory and injunctive relief in the district court.
But regardless of that, this strikes me as a serious argument. I would not be surprised to see the judge dismiss the case on ripeness grounds, saying that because Hall had not attempted to use any of the procedural appeals provided by military regulations, the court did not yet have grounds to intervene. This assumes that the facts are accurate as stated in this motion; if they're not, that obviously changes things.
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As far as the first argument - one would think that the several additional examples of similar discrimination that have come to light since SPC Hall's case was filed would immediately destroy any assertion that such a future injury is unlikely to recur.
The second argument, I agree, is going to be a bit tougher to overcome. Perhaps the evidence of flag officer involvement in proselytizing could show that any internal remedy would be unlikely to succeed.
Posted by: BobApril | July 10, 2008 10:38 AM
The second argument is a tough cookie and actually gave me pause after I read and thought about it. However, strong arguments aside, I truly wonder about the motivations of pushing so strongly to get the case dismissed...oh wait, no I don't.
Posted by: stevogvsu | July 10, 2008 10:47 AM
It strikes me a bit odd that the complainant must exhaust all internal procedural reviews before initiating court procedures. If they wanted to, wouldn't it be possible for the institution to keep the person bogged down in internal procedures for decades and thus prevent anything from ever coming to court?
Posted by: justin | July 10, 2008 11:50 AM
Yes, indeed. And this being the military, there is also lots of opportunity for retaliation. There is a rational basis for the ripeness argument - you do want people to make use of reasonable internal procedures rather than going directly to court - but all too often it ends up just being a way to screw the little guy.
The other argument that bothered me is the claim that the court lacks the ability to enquire into whether Hall was denied promotion as a result of his atheism because promotions are an area reserved to the military, which the courts may not second-guess. Here again, I think the military is given way too much deference. There is really very little justification for the cultish view that only the military can make decisions about military matters. You'd think that they were having to fight to prevent courts from making tactical decisions.
Posted by: Bill Poser | July 10, 2008 12:03 PM
It seems to me he could have applied for redress from the injury already caused. Was this part of the filing brief?? I would think that his career is over, big time, because of this. That is a damage recompensable in law. Is it not??
B.
Posted by: Rev. Bruce Holzrichter Sr. | July 10, 2008 12:40 PM
It seems to me he could have applied for redress from the injury already caused.
Because of the 11th Amendment, you can't sue the federal government for monetary damages caused by past conduct. (The Amendment doesn't explicitly say that, but just go with it.)
You CAN bring such a suit if the federal government has specifically waived this protection. There are lots of cases where they have done that, but you really need to be more of an expert than I am in order to pick one out.
Therefore, plaintiffs often sue the federal government in the future sense only. ("The government has violated my rights, and I want the court to order them not to do it again.")
Luckily, I think "bringing my lost pay up to date" is normally considered a future event that the court can order. If the plaintiff should have been at a higher pay level, but was not promoted due to unconstitutional discrimination, then the plaintiff may be able to get the back pay he should have been awarded.
It's a bit of a loophole, but it may be enough to win the first argument.
Posted by: Chris Bell | July 10, 2008 1:12 PM
justin:
It strikes me a bit odd that the complainant must exhaust all internal procedural reviews before initiating court procedures.
This is a bit problematic because the Constitution Article I, Section 8 grants solely to Congress power "To make rules for the government and regulation of the land and naval forces." Now, that doesn't mean that service members don't have general constitutional rights--they do, circumscribed by rules such as not proselytizing in uniform (I leave this statement as an exercise for the reader), but his superiors could conceivably hold that he is incapable of leading because of his atheism. Were he an officer, however, the Constitution says, in Article VI: " . . . but no religious test shall ever be required as a qualification to any office or public trust under the United States."
FWIW my atheism never hampered my service as a naval officer.
Posted by: JakeR | July 10, 2008 2:09 PM
By the same token, they could claim that blacks or women are incapable of leading, but we wouldn't consider that acceptable.
Posted by: Bill Poser | July 10, 2008 6:29 PM