Harkness v. Sec'y of the Navy
| Decision Date | 31 March 2016 |
| Docket Number | No. 13–cv–3003–SHL–dkv,13–cv–3003–SHL–dkv |
| Citation | 174 F.Supp.3d 990 |
| Parties | Furniss Harkness, Plaintiff, v. Secretary of the Navy, Defendant. |
| Court | U.S. District Court — Western District of Tennessee |
Arthur A. Schulcz, Sr., The Law Office of Arthur A. Schulcz, Sr., PLLC, Vienna, VA, for Plaintiff.
Andrew Evan Carmichael, Christopher Randoll Hall, U.S. Department of Justice, Washington, DC, Gary A. Vanasek, U.S. Attorney's Office, Memphis, TN, for Defendant.
ORDER GRANTING THE SECRETARY'S MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT; DENYING HARKNESS' MOTION FOR PARTIAL SUMMARY JUDGMENT; DENYING HARKNESS' MOTION TO STAY; DENYING HARKNESS' MOTION TO STRIKE; DENYING HARKNESS' MOTION FOR LEAVE TO FILE SUPPLEMENTAL DECLARATION
This case involves questions of administrative and constitutional law raised by a now-retired Navy Chaplain against the Secretary of the Navy (“the Secretary”). Before the Court are several motions made by both parties: 1) the Secretary's Motion to Dismiss for Lack of Jurisdiction and Motion for Summary Judgment (ECF Nos. 35, 42) and Plaintiff Furniss Harkness' (“Harkness”) Response (ECF No. 46); 2) Harkness' Motion to Strike Defendant's Motion to Dismiss and Summary Judgment (ECF No. 44) and the Secretary's Response (ECF No. 52); 3) Harkness' Motion to Stay Proceedings to Conduct Discovery (ECF No. 47), the Secretary's Response (ECF No. 61) and Harkness' Reply (ECF No. 63); 4) Harkness' Motion for Partial Summary Judgment (ECF Nos. 36–40), the Secretary's Response (ECF No. 49) and Harkness' Reply (ECF No. 57); and 5) Harkness' Motion for Leave to File Supplemental Declaration (ECF No. 71) and the Secretary's Response (ECF No. 72). The Court held a hearing on the various motions on December 18, 2015. (ECF No. 70.) Based on the following analysis, the Court GRANTS the Secretary's Motion to Dismiss and Motion for Summary Judgment (ECF Nos. 35, 42), DENIES Harkness' Motion to Strike (ECF No. 44), DE NIES Harkness' Motion to Stay (ECF No. 47), DENIES Harkness' Motion for Partial Summary Judgment (ECF Nos. 36–40), and DENIES Harkness' Motion for Leave to File Supplemental Declaration (ECF No. 71).
The bulk of this case, while containing an extensive and convoluted history between Harkness and the Navy, may be distilled into a simple series of requests and denials. Harkness has continually requested a promotion, and the Navy has continually denied that request, in one way or another. Harkness now turns to the Court to review those denials. The history of Harkness' extensive litigious relationship with the Navy has been detailed in numerous orders and opinions. See, e.g., Harkness v. United States, 727 F.3d 465, 468 (6th Cir.2013). The following is a brief recitation by way of background.
Harkness entered active duty as a Navy Chaplain endorsed by a non-liturgical Christian church, the Disciples of Christ, in March 1987. (Amend. Comp. ¶ 9, ECF No. 15.) Navy Chaplains are subject to the same statutory promotion policies as all other officers. See 10 U.S.C. § 611 et seq . (governing active duty officer promotions); § 14101 et seq. (). The Navy's personnel system utilizes annual promotion boards to recommend officers for advancement in rank. Promotion boards report their recommendations to the Secretary of the Navy, who in turn forwards them to the President. Officers not chosen by a promotion board may challenge the decision pursuant to an administrative review scheme. See 10 U.S.C. §§ 628, 14502. Under this scheme, officers who seek to challenge a promotion board's decision must petition the Secretary to convene a special selection board (“SSB”) to determine whether they should have been promoted. As for reserve officers, if the Secretary declines to convene an SSB, the non-promoted officer may file suit in federal court to determine if the Secretary's decision not to convene an SSB was arbitrary, capricious or contrary to law. See 10 U.S.C. § 14502(h)(1). If the Secretary does convene an SSB, and the SSB determines that the original promotion board's decision was appropriate, the non-promoted officer may file suit in federal court to determine whether the SSB's decision was contrary to law or involved material error of fact or material administrative error. 10 U.S.C. § 14502(h)(2).
After nearly a decade of going through this process, Harkness now raises four distinct claims:1 first, he claims that he was denied various duties and assignments throughout his career in retaliation for his litigious relationship with the Navy; second, he challenges the Secretary's decision to not convene two SSBs—a second SSB in 2012 (to review the 2012 SSB that reviewed the Fiscal Year (“FY”) 2007 Promotion Board's recommendation) and an SSB in 2013 (to review the FY 2014 Promotion Board's recommendation)—as contrary to law; third, he challenges the Navy's general promotion practices as unconstitutional under the Establishment Clause and the Due Process Clause; and fourth, he challenges the actions of his 2012 SSB as contrary to law.
As to the first claim, that Harkness has been denied various duties and assignments over his career in retaliation for his litigation against the Navy, the Secretary seeks dismissal for lack of subject matter jurisdiction, asserting that Harkness' claim is non-justiciable. Harkness filed a response to the Secretary's Motion to Dismiss, as well as a Motion to Strike the Secretary's Motion to Dismiss. In his response, Harkness asserts that his claim is in fact justiciable, pursuant to Supreme Court precedent, and relies on the fact that other courts have remedied similar claims. In his Motion to Strike, Harkness argues that the Secretary's Motion to Dismiss should be stricken because the Secretary merely reiterates arguments from previous filings. As is discussed below, the Court finds that Harkness' first claim is the type of military personnel decision which is not to be reviewed by a federal court, and is thus non-justiciable. Therefore, the Court GRANTS the Secretary's Motion to Dismiss Harkness' retaliation claim and DENIES Harkness' Motion to Strike.
As to the second claim, regarding the Secretary's denials of Harkness' two SSB requests, the Secretary seeks summary judgment without further discovery. The Secretary posits that this claim should be adjudicated on the administrative record, similar to an agency action reviewed under the APA. In response, Harkness filed a Motion to Stay to allow for discovery beyond the administrative record, stating that this claim should not be confined to the administrative record, and, moreover, that there is evidence outside of the administrative record which corroborates his claims. As discussed below, the Court agrees with the Secretary's position, and therefore DENIES Harkness' Motion to Stay. Based on the administrative record, the Court GRANTS the Secretary's Motion for Summary Judgment finding that the Secretary's denials of Harkness' SSB requests (for a second SSB in 2012 and a first one in 2013) were not arbitrary, capricious or contrary to law.
As to the third claim, regarding Harkness' constitutional challenge to the Navy's promotion board procedures under the Establishment Clause and Due Process Clause, the Secretary seeks dismissal for lack of subject matter jurisdiction, asserting that Harkness has failed to exhaust his administrative remedies. In response, Harkness relies on this Court's previous holding that he exhausted his administrative remedies in raising his Establishment Clause challenge to the Navy's promotion board procedures in both of his SSB requests that are currently before the Court. (See ECF No. 29.) The Court agrees with Harkness regarding the exhaustion issue and stands by its original ruling. Harkness raised his constitutional challenges to the Navy's promotion board procedures in both of his SSB requests, and they are therefore not barred for failure to exhaust administrative remedies. Harkness' Partial Motion for Summary Judgment focuses exclusively on these claims. As an initial question, the Court finds that these claims may only be considered by the court vis-à-vis the exclusive administrative review scheme enumerated by 10 U.S.C. § 14502(h)(1)-(2). Under that scheme, the Court finds that neither the promotion board procedures nor the Secretary's decisions violated any constitutional provisions. Accordingly, the Court DENIES Harkness' Motion for Partial Summary Judgment.
As to the fourth claim, regarding the actions of the 2012 SSB that was convened, the Court is also confined to the administrative record pursuant to § 14502(h)(2), and GRANTS the Secretary's Motion for Summary Judgment, finding that the actions of the 2012 SSB were not contrary to law.
Lastly, Harkness filed a Motion for Leave to File Supplemental Declaration following the hearing on the above-referenced motions. Harkness' counsel attempts to include a declaration by Harkness regarding “new and highly relevant material” in support of his opposition to the Secretary's Motion to Dismiss and Summary Judgment. (ECF No. 71 at 5.) Harkness has already filed a response to the Secretary's Motion to Dismiss and Summary Judgment, a Motion to Strike the Secretary's Motion, and a Motion to Stay the Court's ruling on the Secretary's Motion. Within each of these filings, Harkness has made merits-based arguments in opposition to the Secretary's Motion. It is not appropriate for a party to submit multiple filings under different headings for the purpose of circumventing the Court's page limits on responses. Accordingly, Harkness' Motion for Leave to File Supplemental Declaration is DENIED.
ANALYSIS
During his career, Harkness alleges he was denied various duties and assignment in retaliation for his litigation against the Navy. The Secretary challenges Harkness' standing to raise this claim based on three...
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