471 F.3d 124 (D.C. Cir. 2006), 05-5196, Veitch v. England

Docket Nº:05-5196.
Citation:471 F.3d 124
Party Name:D. Philip VEITCH, Rev., Appellant v. Gordon R. ENGLAND, Secretary of the Navy, et al., Appellees.
Case Date:November 28, 2006
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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471 F.3d 124 (D.C. Cir. 2006)

D. Philip VEITCH, Rev., Appellant

v.

Gordon R. ENGLAND, Secretary of the Navy, et al., Appellees.

No. 05-5196.

United States Court of Appeals, District of Columbia Circuit.

November 28, 2006

Argued September 15, 2006

Page 125

Appeal from the United States District Court for the District of Columbia, No. 00cv02982

Arthur A. Schulcz, Sr. argued the cause and filed the briefs for appellant.

Lowell V. Sturgill, Jr., Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Peter D. Keisler, Assistant Attorney General, U.S. Department of Justice, Kenneth L. Wainstein, U.S. Attorney at the time the brief was filed, and Robert M. Loeb, Attorney.

Before: SENTELLE and ROGERS, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Concurring opinion for the Court filed by Circuit Judge ROGERS.

OPINION

Silberman, Senior Circuit Judge:

Rev. D. Philip Veitch, formerly a Lieutenant Commander in the Navy Chaplain Corps, appeals from the district court's grant of summary judgment to the Navy. His complaint alleged that he had been constructively discharged for unconstitutional reasons; that the Navy had forced him out of the service in violation of his First Amendment rights to free speech and free exercise of religion and in contravention of the Establishment Clause. The district court concluded that since Veitch had resigned voluntarily, he lacked standing to bring his constitutional claims. We affirm.

I

Veitch is an evangelical Protestant minister in the Reformed Episcopal Church. He joined the Navy Chaplain Corps in 1987 and from June 1987 until September 2000 served in the Corps as a commissioned officer, ultimately reaching the rank of Lieutenant Commander. This case has its origin in a recurrent dispute that took place between Rev. Veitch and his command chaplain, Captain Ronald J. Buchmiller, during Veitch's assignment to the Naval Support Activity, Naples, Italy ("NSA Naples").

Essentially, Veitch claims that Captain Buchmiller, a Catholic priest, clashed with him because of Buchmiller's intolerance for Veitch's conservative Protestant religious beliefs and practices. There seems to be little doubt that the relationship between the two was quite unfriendly, and, according to Veitch, Buchmiller repeatedly criticized him for his insistence on preaching sola scriptura— the doctrine that Biblical teaching alone is authoritative, which is accepted by many Protestant faiths but rejected by Catholic and Orthodox churches.Continued friction led Veitch to send rather caustic emails to Buchmiller

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and to file an Equal Opportunity Complaint ("EO Complaint") seeking relief from Buchmiller's harassment.

Commander Lawrence Zoeller, a medical service officer, was assigned to investigate Veitch's complaint. Zoeller concluded that Veitch's allegation of religious discrimination was unsubstantiated. In explaining his decision to recommend denying Veitch's complaint, Zoeller described what he perceived to be the Navy's requirement of pluralism among religions. Zoeller determined that Veitch had failed to satisfy the basic tenet of pluralism in his preaching, and that Buchmiller had been correct to counsel Veitch on this problem. Zoeller also found that Veitch's preaching was derogatory toward other faiths. Zoeller transmitted his report to Captain John J. Coyne, the commanding officer at NSA Naples. After reviewing Zoeller's report along with some of the e-mails sent from Veitch to Buchmiller, Coyne contacted Buchmiller to inform him that Veitch's behavior, as evidenced by his e-mails, demonstrated an unacceptable lack of respect for a superior officer and should not be tolerated in the future.

Thereafter, Veitch claims that Buchmiller tore a Reformation Conference poster off his wall and continued to harass and criticize him. Veitch claims that he was on the verge of filing a second EO Complaint in response to Buchmiller's continued hostility. In the end, Veitch chose not to file, but he did send Buchmiller a fateful e-mail on February 8, 1999. Veitch's rebarbative missive was a four-page broadside attack on Buchmiller's command and character. This e-mail prompted Coyne to bring non-judicial punishment against Veitch in the form of a Captain's Mast. Veitch was presented with a charge sheet in February; he was charged with "disrespect towards a superior commissioned officer" under Article 89 of the Uniform Code of Military Justice ("UCMJ"). 10 U.S.C. § 889 (2000). He was also charged under Article 86 of the UCMJ with "failure to go to appointed place of duty," 10 U.S.C. § 886, for having missed four staff meetings, without justification, in late 1998. Veitch consulted with his Navy attorney and refused non-judicial punishment. Coyne then decided to bring the same charges against Veitch at court-martial.

After further consultation with counsel, Veitch submitted his resignation, which Coyne endorsed. Coyne did not further pursue the court-martial charges, but instead issued Veitch a Nonpunitive Letter of Caution. In April 1999, Veitch wrote to the Department of Defense Inspector General ("DoDIG") alleging that Coyne and Buchmiller had engaged in acts of reprisal for his decision to file the EO Complaint; he requested that the DoDIG investigate the circumstances surrounding his resignation. In May, the Navy approved Veitch's resignation and set a November separation date. However, in July, when the DoDIG agreed to investigate Veitch's complaint through the Navy Inspector General ("NIG"), Veitch requested permission to withdraw his resignation. Veitch's new commanding officer, Captain Brendan L. Gray, strongly recommended disapproval of Veitch's request, and the Navy denied his request in August 1999. But in early November, the Secretary of the Navy suspended Veitch's resignation orders until the completion of the NIG investigation into Veitch's retaliation complaint. On May 23, 2000, the NIG completed its report, which found that Veitch's allegations of reprisal were unsupported. With the retaliation inquiry complete, Veitch was finally separated from the Navy on September 30, 2000.

Veitch then sued the Navy and several of its officers in federal district court in December 2000. Veitch included with his

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complaint a motion for a preliminary injunction. The district court denied Veitch's motion. See Veitch v. Danzig, 135 F.Supp.2d 32 (D.D.C. 2001). Defendants then filed a motion to dismiss, which was granted in part and denied in part. The court also ordered Veitch to file an amended complaint or face dismissal of his entire case. See Veitch v. Danzig, Civ. No. 00-2982 (D.D.C. August 30, 2001) (memorandum and order). Veitch then filed a six-count amended complaint alleging Free Speech, Establishment, and Free Exercise claims; Fifth Amendment claims; claims for constructive discharge; and violations of the Religious Freedom Restoration Act ("RFRA"). The district court granted summary judgment for defendants.

II

Veitch would have us confront a rather troubling constitutional question: whether chaplains in the armed services can be required to endorse "pluralism" in their religious practices. The services are understandably concerned about unit morale. And those of us old enough to remember World War II movies will recall scenes of chaplains at the front line performing services for soldiers of different religions. On the other hand, Veitch's argument that a chaplain cannot be obliged to preach counter to his or her religious beliefs consistent with the First Amendment is hardly a frivolous claim. Fortunately for us—and unfortunately for Veitch—we need not decide this difficult question. We agree with the district court that Veitch may not raise this issue because his resignation was voluntary and because the Navy did not act unreasonably in refusing to permit Veitch to withdraw his resignation.

Veitch contends that we are obliged to consider his constitutional challenges because the Navy's alleged unlawful behavior coerced Veitch into offering his resignation; in other words, he alleges that he was constructively discharged. Veitch's pleadings never really indicate the source of his cause of action. At oral argument, Veitch's counsel asserted that his claim and request for injunctive relief—the reinstatement of his status—was based on the Constitution itself. The government did not object to appellant's imprecision in his pleadings, nor did it deny that a claim for constructive discharge could be brought against the government directly under the Constitution.1 The government insisted instead that Veitch's resignation was wholly voluntary. In light of the parties' posture, we shall assume, arguendo, that if the government illegally coerced an officer to resign, a constructive discharge claim could be brought.2 Although we have found no cases that explicitly discuss such a claim, there are, of course, quite a number of constructive discharge cases that arise in the Title VII context. See generally Penn. State Police v. Suders, 542 U.S. 129, 142-43, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004). To be sure, Veitch does not purport to be raising a claim under Title VII, and although this Court has not squarely ruled on the question, we note that every circuit to address the issue has held Title VII inapplicable to uniformed members of the armed services. See, e.g., Fisher v. Peters, 249 F.3d 433, 438 (6th Cir. 2001); Brown v. United States, 227 F.2d 295, 298 (5th Cir. 2000);

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