Harkness v. United States

• Decision Date: 11 July 2013
• Docket Number: No. 12–5711.,12–5711.
• Citation: 727 F.3d 465
• Parties: Furniss HARKNESS, Plaintiff–Appellant, v. UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

727 F.3d 465

Furniss HARKNESS, Plaintiff–Appellant,

v.UNITED STATES of America, Defendant–Appellee.

No. 12–5711.

United States Court of Appeals, Sixth Circuit.

Argued: March 12, 2013.

Decided and Filed: July 11, 2013.

ARGUED:Arthur A. Schulcz, Sr., Vienna, Virginia, for Appellant. Matthew J.B. Lawrence, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF:Arthur A. Schulcz, Sr., Vienna, VA, for Appellant. Matthew J.B. Lawrence, United States Department of Justice, Washington, D.C., for Appellee.

Before: KEITH, COLE, and ROGERS, Circuit Judges.

OPINION

COLE, Circuit Judge.

This case arises from a longstanding dispute between Furniss Harkness and the United States Navy. Harkness is a reserve Commander in the Navy Chaplain Corps who was denied a promotion to the rank of Captain by an annual selection board. He petitioned the Secretary of the Navy to convene a special selection board to review that decision. When the Secretary declined his request, Harkness filed this suit in federal court. He complained, among other things, that the Navy's promotion policies and procedures relating to chaplains violate the Establishment Clause. The district court dismissed this claim for lack of subject matter jurisdiction based on a failure to exhaust administrative remedies as required by 10 U.S.C. § 14502(g)and subsequently denied his motion for reconsideration. On appeal, we must decide whether that statutory provision provides the exclusive avenue to judicial review for a reserve officer challenging his failed promotion on constitutional grounds. Because we conclude that it does, we affirm.

I.

A.

Congress has long provided for chaplains to serve alongside other officers in the United States Navy. The Chaplain Corps's principal mission is to accommodate the religious needs of members of the Navy and the Marines by offering religious services, counseling, and other means of spiritual support. Chaplains also offer advice and instruction on ethical and moral matters to commanding officers when called upon. See generally In re England, 375 F.3d 1169, 1171 (D.C.Cir.2004) (describing the history and organization of the Chaplain Corps in considerable detail).

The defining feature of the Chaplain Corps is that each chaplain serves “as clergy or a professional representative of a particular religious denomination.” Id. (internal quotation marks and citation omitted). Accordingly, a Navy chaplain must possess specialized theological qualifications as well as a current ecclesiastical endorsement from the denomination she represents. The Navy classifies each chaplain according to the general category—or “faith group”—into which her denomination fits based on shared practices and beliefs. See id. at 1171–72. There are four such groups: Roman Catholic, liturgical Protestant, non-liturgical Protestant, and Special Worship.

In addition to their role as religious representatives, chaplains also serve as commissioned Naval officers. Chaplains are thus subject to the same congressionally mandated promotion policies and procedures as all other officers. See10 U.S.C. § 611 et seq. (governing active duty officer promotions); id. § 14101 et seq. (governing reserve officer promotions). The Navy's current personnel system utilizes annual selection boards to recommend officers for advancement in the ranks. See id. §§ 612, 14102. These boards must have “five or more officers,” including at least one officer from the same “component” or “competitive category” as the officer up for promotion. Id. §§ 612(a), 14102(b). In other words, when a selection board considers a chaplain for promotion, one officer on the board must also be a chaplain. After deliberation, a selection board reports its recommendations to the Secretary of the Navy (the “Secretary”), who forwards them to the President for official promotion.

Chaplains who are passed over may challenge the decision of that year's selection board pursuant to an administrative review scheme, see10 U.S.C. §§ 628, 14502, which is ultimately under fire here. These non-promoted officers must first petition the Secretary to convene a “special selection board” (or “SSB”) for the purpose of determining whether they should have rightfully been recommended for promotion to the next rank. Id. §§ 628(h), 14502(g). The Secretary is instructed to weigh certain factors in granting or denying such a request, including whether an administrative error caused the original selection board never actually to consider the petitioning officer, id. §§ 628(a), 14502(a), or whether a material error caused the original board to mistakenly fail to recommend her for promotion, id. §§ 628(b), 14502(b). If the Secretary determines that an SSB is warranted, the SSB has the power to review an officer's personnel file as it would have appeared (in the case of administrative error) or should have appeared (in the case of material error) at the time of the first board in making a new recommendation. If the Secretary determines that an SSB is not warranted, the petitioning officer can finally seek review of that denial in federal court. See id. §§ 628(g), 14502(h) (instructing the federal courts to apply the familiar arbitrary-and-capricious standard to the Secretary's decision).

B.

Furniss Harkness is a chaplain in the Naval Reserve with a long history of advocating for reform. Harkness began his career as an active duty officer in the Chaplain Corps representing the Christian Church (Disciples of Christ), which the Navy classifies as a non-liturgical Protestant denomination. In 2000, he joined sixteen other non-liturgical Protestant chaplains in filing suit against the Navy, alleging systemic denominational prejudice. See Adair v. England, 183 F.Supp.2d 31, 38 (D.D.C.2002). Harkness also claimed that the Navy discriminated against him personally for religious and retaliatory reasons on a number of occasions, including when its active duty selection boards failed to recommend him for promotion. Id. That suit is still pending. In the meantime, Harkness has shifted to reserve status.

In 2007, Harkness came up for promotion to the rank of Captain before a reserve officer selection board. He was not recommended. Not one to go quietly, Harkness alleged that the board “was not legally composed” and petitioned the Secretary to convene an SSB to reconsider him for promotion pursuant to 10 U.S.C. § 14502. The Secretary denied his request. Harkness also asked the Department of Defense Inspector General to investigate the board, but the investigation turned up no evidence of wrongdoing.

In 2010, Harkness filed this suit in federal court challenging the Secretary's decision to deny his request for an SSB. His complaint set forth three claims. First, Harkness alleged that the Secretary's decision was “arbitrary, capricious and contrary to law” because the selection board that failed to promote him was “illegally composed.” Second, and most relevant here, Harkness alleged that “the Navy's current chaplain selection board procedures and composition violate the Establishment Clause” by allowing chaplains to rate other chaplains and thereby reproduce denominational preferences that favor Roman Catholics and liturgical Protestants. Third, Harkness alleged that the Secretary “acted in bad faith by denying [his] SSB request.” Harkness also sought a preliminary injunction to prevent the Navy from convening its reserve officer selection board for 2012 until his challenges were adjudicated on the merits, but to no avail. The first and third claims were eventually rendered moot when the Secretary changed course and approved Harkness's request for an SSB to reconsider him for promotion to the rank of Captain.¹

That leaves only the Establishment Clause claim relevant to the appeal before us. The district court dismissed the claim for lack of subject matter jurisdiction based on a failure to exhaust administrative remedies. The court held that Harkness was required to present the claim to the Secretary prior to seeking judicial review under the “extremely broad and encompassing”“exhaustion requirement” imposed by 10 U.S.C. § 14502(g) but had failed to do so. Harkness filed a motion for reconsideration in which he offered a number of new arguments, none of which swayed the district court.

Harkness now appeals both adverse judgments. We begin and end with the question of whether the district court properly determined that it lacked jurisdiction over his claim.

II.

We review de novo a district court's dismissal of any part of a complaint for lack of subject matter jurisdiction. See Taylor v. Geithner, 703 F.3d 328, 332 (6th Cir.2013). In addition, “we review for an abuse of discretion a district court's denial of a motion for reconsideration.” See Indah v. U.S. Sec. & Exchange Comm'n, 661 F.3d 914, 924 (6th Cir.2011).

A.

It is axiomatic that the federal courts are courts of limited jurisdiction, “possess[ing] only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted). One such statute is 28 U.S.C. § 1331, which empowers the district courts to hear “all civil actions arising under the Constitution, laws, or treaties of the United States.” In light of this general grant of jurisdiction, the appropriate question in cases such as ours “is not whether Congress has specifically conferred jurisdiction, but whether it has taken it away.” Elgin v. Dep't of the Treasury, ––– U.S. ––––, 132 S.Ct. 2126, 2141, 183 L.Ed.2d 1 (2012) (Alito, J., dissenting).

Congress often does so in two ways when administrative bodies are involved: by imposing exhaustion requirements and by imposing channeling requirements. As to the former, Congress has long directed parties to exhaust administrative remedies before seeking relief from the federal courts, and when it does so by statute, the requirement cannot be excused. See McCarthy v....