Furniss Harkness v. Sec'y of Navy
858 F.3d 437
| 6th Cir. | 2017Background
- Furniss Harkness, a retired Navy Reserve chaplain (endorsed by a non‑liturgical Christian church), was twice denied promotion (2007, 2013) and sought administrative review via special selection boards (SSBs) under 10 U.S.C. § 14502.
- Statutory promotion scheme: mandatory promotion boards (including at least one officer from the same competitive category), Secretary may convene SSBs to review promotion‑board denials for legal/administrative/material factual error; Secretary’s refusals are reviewable in federal court under § 14502(h).
- Harkness previously litigated systemic denominational bias claims (Adair/In re Navy Chaplaincy litigation) and obtained a 2012 SSB to revisit his 2007 denial; that SSB again declined promotion and Harkness requested a second SSB (denied as beyond statutory authority).
- Harkness’s 2013 petition for an SSB (challenging composition and asserting Establishment Clause violations based on statistical and delegation theories) was denied by the Secretary; Harkness sued in district court alleging (1) Secretary acted arbitrarily and contrary to law in denying SSBs under § 14502(h)(1) and (2) First Amendment retaliation for his prior litigation.
- The district court dismissed the retaliation claim as non‑justiciable and granted summary judgment for the Secretary on the § 14502 claims; the Sixth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Justiciability of First Amendment retaliation claim re: duty assignments | Harkness: denials of recorder, jamboree, training, APPLY positions were retaliatory and reviewable | Secretary: duty‑assignment decisions are non‑justiciable military decisions; plaintiff hasn’t shown cognizable injury or basis for judicial review | Claim non‑justiciable under Mindes/Orloff framework; dismissed |
| Authority to convene second SSB after initial SSB denied promotion | Harkness: Secretary should have convened a second SSB to review the initial 2012 SSB because initial SSB was unconstitutional | Secretary: Statute authorizes SSBs only to review mandatory promotion board denials, not review of prior SSBs; no statutory/regulatory basis for second SSB | Denial not arbitrary or contrary to law; Secretary lacked authority to convene a second SSB |
| Denial of 2013 SSB based on promotion‑board composition and Establishment Clause | Harkness: 2013 board included improperly disqualified member(s) and procedures/statistics show denominational favoritism or impermissible delegation of authority to religious actors | Secretary: Board composition complied with statutes/regulations; procedures are facially neutral, include secular guidance and review layers; statistics outdated and fail to control for confounders | Composition challenge not exhausted; Establishment Clause challenge fails under Larson/Lemon and Larkin/Grumet analyses—denial affirmed |
| Supplementation of administrative record / discovery | Harkness: extra‑record evidence (declaration, anonymous statement, other statistics) shows record tainted and Secretary acted in bad faith; discovery needed | Secretary: Review confined to administrative record; plaintiff failed to present evidence administratively and hasn't shown bad faith or deliberate exclusion | District court did not abuse discretion in refusing to supplement record or permit discovery; exhaustion required |
Key Cases Cited
- In re England, 375 F.3d 1169 (D.C. Cir. 2004) (describing dual role of military chaplains)
- Harkness v. United States, 727 F.3d 465 (6th Cir. 2013) (holding § 14502 administrative review scheme exclusive for nonpromotion constitutional claims)
- Orloff v. Willoughby, 345 U.S. 83 (1953) (courts generally refrain from reviewing specific military duty assignments)
- Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971) (framework for justiciability of internal military decisions: threshold plus four‑factor balancing)
- Larson v. Valente, 456 U.S. 228 (1982) (strict scrutiny for laws that facially prefer one religion over another)
- Lemon v. Kurtzman, 403 U.S. 602 (1971) (three‑pronged test for Establishment Clause challenges)
- Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982) (invalidating delegation of governmental power to religious entities where no neutral standards exist)
- Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687 (1994) (distinguishing delegations based on religious identity from neutral delegations)