Harkness v. Sec'y of the Navy

• Decision Date: 31 May 2017
• Docket Number: No. 16-5396,16-5396
• Citation: 858 F.3d 437
• Parties: Furniss HARKNESS, Plaintiff–Appellant, v. SECRETARY OF the NAVY, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

858 F.3d 437

Furniss HARKNESS, Plaintiff–Appellant,

v.SECRETARY OF the NAVY, Defendant–Appellee.

No. 16-5396

United States Court of Appeals, Sixth Circuit.

Argued: January 31, 2017

Decided and Filed: May 31, 2017

Rehearing En Banc Denied August 17, 2017

ARGUED: Arthur A. Schulcz, SR., CHAPLAINS' COUNSEL, PLLC, Leesburg, Virginia, for Appellant. Edward Himmelfarb, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Arthur A. Schulcz, SR., CHAPLAINS' COUNSEL, PLLC, Leesburg, Virginia, for Appellant. Edward Himmelfarb, Marleigh D. Dover, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Before: GIBBONS, ROGERS, and McKEAGUE, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Retired Navy chaplain Furniss Harkness sued the Secretary of the Navy (Secretary), alleging that prior to his retirement, the Navy denied him multiple promotions and duty assignments in violation of the First Amendment. On this basis, he claims that the Secretary's refusal to convene special selection boards (SSBs) to reconsider him for promotion was arbitrary, capricious, and contrary to law under 10 U.S.C. § 14502. The district court granted the Secretary's motion to dismiss and motion for summary judgment on all claims. For the reasons set forth below, we affirm.

I.

A.

The Chaplain Corps is a body of commissioned naval officers responsible for providing religious services to all members of the Navy and their families. Chaplains perform a bifurcated role, serving both as "clergy or ... professional representative[s] of a particular religious denomination and as ... commissioned naval officer[s]." In re England , 375 F.3d 1169, 1171 (D.C. Cir. 2004) (quoting OPNAVINST 1730.1, Chaplains Manual 1-2–1-3 (Dep't of the Navy Oct. 3, 1973)). Navy chaplains are divided into four faith-group categories: Roman Catholic, liturgical Protestant, non-liturgical Protestant, and Special Worship.

Like other officers, chaplains are subject to congressionally-mandated promotion procedures, including consideration by an annual promotion board. These boards must consist of "five or more officers," with "at least one officer" being from the same "competitive category" (e.g., the Chaplain Corps) as the officer being considered for promotion. 10 U.S.C. § 14102. Prior to 2003, chaplain promotion boards consisted of at least five members, one of whom was not a chaplain. Since 2003, chaplain promotion boards have been comprised of seven members: two chaplain officers—"nominated without regard to religious affiliation"—and five non-chaplain officers. SECNAVINST 1401.3A, Encl. (1), ¶ 1.c(1)(f). All members of the board must take an oath to perform their duties "without prejudice or partiality." 10 U.S.C. § 14103. The senior member of the board—normally the Chief of Chaplains or one of his deputies—may be appointed board president. SECNAVINST 1420.1B, ¶ 13.b. The board recommends for promotion those officers it "considers best qualified for promotion," giving due consideration to the Navy's needs for "officers with particular skills." 10 U.S.C. § 14108. These recommendations are reported to the Secretary, who then forwards them to the Secretary of Defense for transmittal to the President for approval. Id. §§ 14109–14111.

A chaplain who is denied a promotion may challenge the promotion board's decision pursuant to a statutory administrative-review scheme. Id. § 14502. The non-promoted officer must first petition the Secretary to convene an SSB to review the promotion board's decision. Id. § 14502(a)–(b). In deciding whether to grant an SSB, the Secretary considers whether the original promotion board's decision was contrary to law, suffered from administrative error, or suffered from a material error of fact. Id. If the Secretary determines that an SSB is warranted, an SSB is convened to review "the record of the officer ... as that record, if corrected, would have appeared to the mandatory promotion board that considered the officer or former officer."Id. § 14502(b)(3). If the SSB concludes that a promotion was merited, the officer receives a retroactive promotion, as well as back pay. Id. § 14502(e). If the Secretary denies an SSB request, or if an SSB is convened and it denies a promotion, the petitioning officer may then seek review of that decision in federal court. Id. § 14502(g). If the reviewing court determines that an error has occurred, it must remand the case to the Secretary, who must provide for reconsideration of the officer by a new SSB. Id. § 14502(h).

B.

Furniss Harkness is a now-retired Navy Reserve Chaplain. He was commissioned as an officer in the Navy Chaplain Corps in 1987 and endorsed by a non-liturgical Christian church (Disciples of Christ). Harkness left active duty in 1995 and took reserve status. In 2000, Harkness joined sixteen other non-liturgical chaplains in filing suit against the Navy, alleging systemic denominational prejudice in its promotion procedures. See Adair v. England , 183 F.Supp.2d 31, 38 (D.D.C. 2002). That suit, which has been appealed multiple times to the D.C. Circuit, is still pending in the United States District Court for the District of Columbia. See In re Navy Chaplaincy , 170 F.Supp.3d 21 (D.D.C. 2016).

In 2007, Harkness was denied promotion to the rank of Captain by a reserve officer promotion board. Harkness petitioned the Secretary for an SSB, alleging that the board was illegally composed, but the petition was denied. Harkness filed suit in 2010, claiming that under 10 U.S.C. § 14502(h)(1), the Secretary's decision not to convene an SSB was arbitrary, capricious, and contrary to law. Harkness also sought a declaratory judgment that the Navy's chaplain promotion procedures violated the Establishment Clause. The district court dismissed the constitutional claim for lack of jurisdiction, based on Harkness's failure to exhaust administrative remedies under 10 U.S.C. § 14502(g). This court affirmed, holding that " § 14502 creates a review scheme that is both exclusive and applicable to Harkness's constitutional claim." Harkness v. United States , 727 F.3d 465, 472 (6th Cir. 2013).

Harkness's illegal-composition claim was eventually rendered moot when, in 2012, the Secretary agreed to convene an SSB to reconsider the 2007 promotion board's decision. This SSB did not select Harkness for promotion (the "initial 2012 SSB"). In response, Harkness petitioned the Secretary for a second SSB to review the initial SSB's decision (the "2012 SSB request"), which was denied due to statutory limitations for granting SSBs.

In 2013, Harkness was once again considered for and denied promotion by a reserve officer promotion board (the "2013 promotion board"). Harkness petitioned the Secretary for an SSB to review this decision (the "2013 SSB request"), arguing that reconsideration was necessary because the 2013 promotion board violated both Navy regulations and the Establishment Clause. Harkness's constitutional claim was twofold. First, relying on statistical evidence, he alleged that the current procedures employed by promotion boards produced denominational preferences in promotion decisions. Second, he challenged the delegation of governmental authority to chaplains serving on promotion boards without effective guarantees that the power would be exercised in a neutral, secular manner. The Secretary denied Harkness's request, reasoning that the 2013 promotion board was consistent with both Navy regulations and the Establishment Clause.

Harkness filed suit in December 2013. He first claimed that, because both the 2012 SSB and the 2013 promotion board were convened in violation of Navy regulations and the Establishment Clause, the Secretary's denial of both Harkness's 2012 SSB request and his 2013 SSB request was arbitrary, capricious, and contrary to law under 10 U.S.C. § 14502(h)(1). Additionally, Harkness alleged that he was unlawfully denied various duty assignments during his Navy career in retaliation for his past litigiousness against the Navy.¹

The Secretary moved to dismiss Harkness's First Amendment retaliation claim for lack of jurisdiction and moved for summary judgment on Harkness's remaining claims. In response, Harkness moved for partial summary judgment on his constitutional challenge to the Navy's promotion procedures, and also moved to stay further proceedings until discovery could be conducted. The district court granted the Secretary's motions to dismiss and for summary judgment and denied Harkness's motions. Harkness filed this timely appeal.

II.

A.

Harkness claims that he was denied various duty assignments in retaliation for his past litigiousness against the Navy—namely, a recorder position on promotion selection boards, an assignment working on the 2010 National Boy Scout Jamboree, a training position at Naval Region Europe, and various APPLY board positions. He alleges that the denial of these assignments violated the First Amendment and hindered his career advancement and promotion opportunities. The district court dismissed this claim as non-justiciable, a decision we review de novo . Nat'l Rifle Ass'n of Am. v. Magaw , 132 F.3d 272, 278–79 (6th Cir. 1997) (citation omitted).

B.

Although some military personnel decisions are indeed reviewable, see Emory v. Sec'y of Navy , 819 F.2d 291, 294 (D.C. Cir. 1987) (promotion decision); Dunlap v. State of Tenn. , 514 F.2d 130, 133 (6th Cir. 1975) (denial of re-enlistment), rev'd on other grounds, Tennessee v. Dunlap , 426 U.S. 312, 96 S.Ct. 2099, 48 L.Ed.2d 660 (1976), courts are generally reluctant to review claims involving military duty assignments, see Orloff v. Willoughby , 345 U.S. 83, 92–93, 73 S.Ct. 534, 97 L.Ed. 842 (1953) ; Schlanger v. United States , 586 F.2d 667, 671 (9th Cir. 1978) (listing cases). Several justifications for this rule exist: lack of expertise, deference to the unique role of the military in our constitutional structure, and the practical difficulties that would arise if every military duty assignment...