174 F. Supp. 3d 990
W.D. Tenn.2016Background
- Plaintiff Furniss Harkness, a retired Navy chaplain, repeatedly sought promotions and administrative review via special selection boards (SSBs); he challenges denials and procedures spanning FY2007–2014 promotion cycles.
- Harkness alleges four main claims: (1) retaliation in assignment decisions (non-promotion duties), (2) unlawful denials of requests for SSBs (2012 second SSB and an SSB for FY2014), (3) constitutional challenges (Establishment and Due Process) to Navy promotion procedures, and (4) that the 2012 SSB’s actions were contrary to law.
- The Secretary moved to dismiss for lack of jurisdiction and for summary judgment on the administrative record; Harkness sought discovery and moved for partial summary judgment on constitutional claims.
- The court treated review of the Secretary’s SSB-denial and the convened SSB under the exclusive statutory scheme of 10 U.S.C. § 14502 and confined review primarily to the administrative record, allowing supplementation only in narrow circumstances.
- The court dismissed Harkness’ retaliation claim as non-justiciable under Orloff, denied his discovery requests and motions, and granted the Secretary summary judgment on the SSB-denial and the 2012 SSB action; Harkness’ Establishment and Due Process claims failed on the merits or for lack of a cognizable property interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Justiciability of retaliation claims about assignments (non-promotion duties) | Harkness: assignments denied in retaliation are reviewable when they violate law or constitutional rights | Secretary: intra-military assignment decisions are non-justiciable; Orloff forecloses review | Court: Dismissed retaliation claim with prejudice as non-justiciable under Orloff |
| Scope of review / discovery for §14502 challenges (SSB denials and SSB actions) | Harkness: discovery beyond the administrative record is needed to prove bias and bad faith | Secretary: §14502 creates an exclusive review scheme; review limited to the administrative record | Court: Review limited to administrative record; denied stay and discovery, with narrow exceptions for bad faith/supplementation (not shown) |
| Secretary’s denial to convene SSBs (§14502(h)(1)) — arbitrary, capricious, contrary to law | Harkness: denials were arbitrary, board composition and procedures defective | Secretary: statutory/regulatory constraints; no authority to convene a “second” SSB to review an SSB; administrative record supports decisions | Court: Granted summary judgment for Secretary; denials not arbitrary or contrary to law; no authority for a second SSB |
| Establishment Clause challenge to promotion procedures | Harkness: procedures permit denominational preference; statistics show disparities and delegation of promotion power to religiously-defined officers | Secretary: procedures neutral on their face, have secular purpose; statutory confidentiality and composition requirements; D.C. Circuit precedent supports rejection | Court: Applied Lemon (not Larson); statistics and record insufficient to show governmental endorsement or primary effect advancing religion; denied Harkness’ partial SJ and granted SJ for Secretary |
| Due Process / Equal Protection / property-interest in promotion | Harkness: asserted due process/equal protection defects in procedures | Secretary: no constitutionally protected property interest in military promotion; exhaustion required for constitutional claims | Court: Dismissed Due Process claim with prejudice (no property interest); constitutional claims considered only to the extent exhausted administratively and found meritless as to Establishment issues |
| Review of 2012 SSB actions under §14502(h)(2) | Harkness: board composition/participant conduct rendered SSB void or unlawful | Secretary: regulations permit membership and administrative record lacks material error or law violation | Court: Even if construed under §14502(h)(2), Harkness failed to show material factual/administrative error or illegality; granted summary judgment for Secretary |
Key Cases Cited
- Orloff v. Willoughby, 345 U.S. 83 (Sup. Ct.) (military assignment decisions generally non-justiciable)
- Sierra Club v. Slater, 120 F.3d 623 (6th Cir.) (standards for administrative record and supplementation)
- Harkness v. United States, 727 F.3d 465 (6th Cir.) (§14502 creates exclusive review scheme and exhaustion requirement)
- In re Navy Chaplaincy, 738 F.3d 425 (D.C. Cir.) (rejecting similar Establishment Clause challenge to chaplain promotion procedures)
- Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359 (Sup. Ct.) (substantial-evidence review confined to the record)
- Larson v. Valente, 456 U.S. 228 (Sup. Ct.) (strict scrutiny when government prefers one religion over another)
- Lemon v. Kurtzman, 403 U.S. 602 (Sup. Ct.) (three-pronged Establishment Clause test)
- Grendel's Den, Inc. v. Larkin, 459 U.S. 116 (Sup. Ct.) (invalidating delegation of governmental power to religious entities)