Argued: January 31, 2017
from the United States District Court for the Western
District of Tennessee at Memphis. No. 2:13-cv-03003-Sheryl H.
Lipman, District Judge.
A. Schulcz, SR., CHAPLAINS' COUNSEL, PLLC, Leesburg,
Virginia, for Appellant.
Himmelfarb, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
A. Schulcz, SR., CHAPLAINS' COUNSEL, PLLC, Leesburg,
Virginia, for Appellant.
Himmelfarb, Marleigh D. Dover, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
Before: GIBBONS, ROGERS, and McKEAGUE, Circuit Judges.
SMITH GIBBONS, Circuit Judge.
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.
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.
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.
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).
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).
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).
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.
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.
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
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