In the face of persistent moves ordered by Secretary of Defense Pete Hegseth to punish Senator Mark Kelly, a former Navy combat pilot and retired astronaut, for opposing this administration’s policies, Kelly has now filed suit charging that these actions are in direct violation of fundamental constitutional rights as well as basic federal administrative law.

The lawsuit alleges seven violations. Here are a few excerpts from Kelly’s complaint on each alleged violation.

Violation of the First Amendment

Defendants’ actions seek to discipline the Senator for three categories of public statements: (1) reminders to servicemembers of their duty to refuse unlawful orders; (2) criticism of military leadership for “firing admirals and generals” and surrounding themselves with “yes men”; and (3) concerns that certain military operations might be illegal. All three categories are protected political speech….

Furthermore, Defendants’ actions amount to unconstitutional First Amendment retaliation. Senator Kelly’s speech is protected by the First Amendment; Defendants took materially adverse action against the Senator that would deter a person of ordinary firmness in his position; and a causal link exists between the protected speech and the adverse action.

Violation Of The Speech Or Debate Clause And Legislative Immunity

The Speech or Debate Clause provides that “for any Speech or Debate in either House,” Members of Congress “shall not be questioned in any other Place. ” U.S. Const. art. I, $ 6.

The “fundamental purpose” of this Clause is to free “the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator.” [legal case citations omitted]

Violation Of The Separation Of Powers

144. The Constitution presumes coequal branches, and the “doctrine of separation of powers” lies “at the heart of our Constitution.”

Separation-of-powers jurisprudence is animated by two primary concerns, “encroachment and aggrandizement.” Defendants’ actions do both.

Allowing Defendants to punish a Senator through military proceedings for his political speech erodes the separation of powers and gives the Executive a power over legislators that the Constitution does not contemplate. [legal case citations omitted]

Violation Of Due Process

Agency decisions violate due process when they have been “prejudged” by pertinent Executive Branch officials, because agencies must “exercise [discretionary] authority according to [their] own understanding and conscience.”

Where a “disinterested observer may conclude that [an agency adjudicator] has in some measure adjudged the facts as well as the law of a particular case in advance of hearing it,” the agency has “deni[ed] due process.”

Secretary Hegseth is the relevant agency decisionmaker here, having issued the censure letter and made the relevant “determination[s].” His letter states that the “Secretary of the Navy [will] recommend to me whether a reduction in grade is appropriate in your case,” but ultimately, “I will determine if a reduction is warranted.” (emphasis added).

Secretary Hegseth has already adjudged the decision to reduce Senator Kelly’s grade. The censure letter declares without qualification that Senator Kelly’s protected speech “undermines the chain of command,” “counsels disobedience,” “creates confusion about duty,” “brings discredit upon the Armed Forces,” and is “unbecoming” of an officer.

These determinations parrot the standards that, under Naval regulations, justify a reduction in grade. And the grade-determination letter confirms that the sole “factual basis supporting this action” is Secretary Hegseth’s letter of censure.

Violation Of 10 U.S.C. § 1370

Under 10 U.S.C. § 1370, an officer’s retirement grade must be determined exclusively by active-duty conduct: Officers “shall be retired in the highest permanent grade in which such officer is determined to have served on active duty satisfactorily,” unless “an officer committed misconduct in a lower grade than the retirement grade otherwise provided for the officer by this section.”

Under § 1370, the Secretary of the Navy-not the Secretary of Defense”shall” make the “determination of satisfactory service” for officers “serving in a grade at or below the grade of major general or rear admiral.”

An O-6, Navy Captain is a grade “below the grade of major general or rear admiral.”

Violation Of Administrative Procedure Act
Contrary To Law

Under the Administrative Procedure Act (“APA”), courts shall “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Defendants’ actions are contrary to law under each of the constitutional and statutory provisions described in Counts I through V above.

Violation Of Administrative Procedure Act
Arbitrary And Capricious

Under the APA, a court shall “hold unlawful and set aside agency action” that is “arbitrary, capricious, [or] an abuse of discretion.”

Defendants’ actions are arbitrary and capricious because the agency failed to “examine the relevant [information] and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” The agency has not offered any “rational connection” between Senator Kelly’s statements and Defendants’ actions. Id.

Each of these points is presented and argued extensively with a recitation of facts and extensive legal references in Kelly’s legal complaint, which is presented in full below.