Veitch, D. Philip v. England, Gordon R.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2006 Decided November 28, 2006

Reissued December 4, 2006

No. 05-5196

D. PHILIP VEITCH, REV.,

APPELLANT

v.

GORDON R. ENGLAND, SECRETARY OF THE NAVY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 00cv02982)

Arthur A. Schulcz, Sr. argued the cause and filed the briefs

for appellant.

Lowell V. Sturgill, Jr., Attorney, U.S. Department of

Justice, argued the cause for appellees. With him on the brief

were Peter D. Keisler, Assistant Attorney General, U.S.

Department of Justice, Kenneth L. Wainstein, U.S. Attorney at

the time the brief was filed, and Robert M. Loeb, Attorney.

2

Before: SENTELLE and ROGERS, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

Concurring opinion filed by Circuit Judge ROGERS.

SILBERMAN, Senior Circuit Judge: Rev. D. Philip Veitch,

formerly a Lieutenant Commander in the Navy Chaplain Corps,

appeals from the district court’s grant of summary judgment to

the Navy. His complaint alleged that he had been constructively

discharged for unconstitutional reasons; that the Navy had

forced him out of the service in violation of his First

Amendment rights to free speech and free exercise of religion

and in contravention of the Establishment Clause. The district

court concluded that since Veitch had resigned voluntarily, he

lacked standing to bring his constitutional claims. We affirm.

I

Veitch is an evangelical Protestant minister in the Reformed

Episcopal Church. He joined the Navy Chaplain Corps in 1987

and from June 1987 until September 2000 served in the Corps

as a commissioned officer, ultimately reaching the rank of

Lieutenant Commander. This case has its origin in a recurrent

dispute that took place between Rev. Veitch and his command

chaplain, Captain Ronald J. Buchmiller, during Veitch’s

assignment to the Naval Support Activity, Naples, Italy (“NSA

Naples”).

Essentially, Veitch claims that Captain Buchmiller, a

Catholic priest, clashed with him because of Buchmiller’s

intolerance for Veitch’s conservative Protestant religious beliefs

and practices. There seems to be little doubt that the

3

relationship between the two was quite unfriendly, and,

according to Veitch, Buchmiller repeatedly criticized him for his

insistence on preaching sola scriptura—the doctrine that

Biblical teaching alone is authoritative, which is accepted by

many Protestant faiths but rejected by Catholic and Orthodox

churches. Continued friction led Veitch to send rather caustic e-

mails to Buchmiller and to file an Equal Opportunity Complaint

(“EO Complaint”) seeking relief from Buchmiller’s harassment.

Commander Lawrence Zoeller, a medical service officer,

was assigned to investigate Veitch’s complaint. Zoeller

concluded that Veitch’s allegation of religious discrimination

was unsubstantiated. In explaining his decision to recommend

denying Veitch’s complaint, Zoeller described what he

perceived to be the Navy’s requirement of pluralism among

religions. Zoeller determined that Veitch had failed to satisfy

the basic tenet of pluralism in his preaching, and that Buchmiller

had been correct to counsel Veitch on this problem. Zoeller also

found that Veitch’s preaching was derogatory toward other

faiths. Zoeller transmitted his report to Captain John J. Coyne,

the commanding officer at NSA Naples. After reviewing

Zoeller’s report along with some of the e-mails sent from Veitch

to Buchmiller, Coyne contacted Buchmiller to inform him that

Veitch’s behavior, as evidenced by his e-mails, demonstrated an

unacceptable lack of respect for a superior officer and should not

be tolerated in the future.

Thereafter, Veitch claims that Buchmiller tore a

Reformation Conference poster off his wall and continued to

harass and criticize him. Veitch claims that he was on the verge

of filing a second EO Complaint in response to Buchmiller’s

continued hostility. In the end, Veitch chose not to file, but he

did send Buchmiller a fateful e-mail on February 8, 1999.

Veitch’s rebarbative missive was a four-page broadside attack

on Buchmiller’s command and character. This e-mail prompted

4

Coyne to bring non-judicial punishment against Veitch in the

form of a Captain’s Mast. Veitch was presented with a charge

sheet in February; he was charged with “disrespect towards a

superior commissioned officer” under Article 89 of the Uniform

Code of Military Justice (“UCMJ”). 10 U.S.C. § 889 (2000).

He was also charged under Article 86 of the UCMJ with “failure

to go to appointed place of duty,” 10 U.S.C. § 886, for having

missed four staff meetings, without justification, in late 1998.

Veitch consulted with his Navy attorney and refused non-

judicial punishment. Coyne then decided to bring the same

charges against Veitch at court-martial.

After further consultation with counsel, Veitch submitted

his resignation, which Coyne endorsed. Coyne did not further

pursue the court-martial charges, but instead issued Veitch a

Nonpunitive Letter of Caution. In April 1999, Veitch wrote to

the Department of Defense Inspector General (“DoDIG”)

alleging that Coyne and Buchmiller had engaged in acts of

reprisal for his decision to file the EO Complaint; he requested

that the DoDIG investigate the circumstances surrounding his

resignation. In May, the Navy approved Veitch’s resignation

and set a November separation date. However, in July, when the

DoDIG agreed to investigate Veitch’s complaint through the

Navy Inspector General (“NIG”), Veitch requested permission

to withdraw his resignation. Veitch’s new commanding officer,

Captain Brendan L. Gray, strongly recommended disapproval of

Veitch’s request, and the Navy denied his request in August

1999. But in early November, the Secretary of the Navy

suspended Veitch’s resignation orders until the completion of

the NIG investigation into Veitch’s retaliation complaint. On

May 23, 2000, the NIG completed its report, which found that

Veitch’s allegations of reprisal were unsupported. With the

retaliation inquiry complete, Veitch was finally separated from

the Navy on September 30, 2000.

5

Veitch then sued the Navy and several of its officers in

federal district court in December 2000. Veitch included with

his complaint a motion for a preliminary injunction. The district

court denied Veitch’s motion. See Veitch v. Danzig, 135 F.

Supp. 2d 32 (D.D.C. 2001). Defendants then filed a motion to

dismiss, which was granted in part and denied in part. The court

also ordered Veitch to file an amended complaint or face

dismissal of his entire case. See Veitch v. Danzig, Civ. No. 00-

2982 (D.D.C. Aug. 30, 2001) (memorandum and order). Veitch

then filed a six-count amended complaint alleging Free Speech,

Establishment, and Free Exercise claims; Fifth Amendment

claims; claims for constructive discharge; and violations of the

Religious Freedom Restoration Act (“RFRA”). The district

court granted summary judgment for defendants.

II

Veitch would have us confront a rather troubling

constitutional question: whether chaplains in the armed services

can be required to endorse “pluralism” in their religious

practices. The services are understandably concerned about unit

morale. And those of us old enough to remember World War II

movies will recall scenes of chaplains at the front line

performing services for soldiers of different religions. On the

other hand, Veitch’s argument that a chaplain cannot be obliged

to preach counter to his or her religious beliefs consistent with

the First Amendment is hardly a frivolous claim. Fortunately

for us—and unfortunately for Veitch—we need not decide this

difficult question. We agree with the district court that Veitch

may not raise this issue because his resignation was voluntary

and because the Navy did not act unreasonably in refusing to

permit Veitch to withdraw his resignation.

6

Veitch contends that we are obliged to consider his

constitutional challenges because the Navy’s alleged unlawful

behavior coerced Veitch into offering his resignation; in other

words, he alleges that he was constructively discharged.

Veitch’s pleadings never really indicate the source of his cause

of action. At oral argument, Veitch’s counsel asserted that his

claim and request for injunctive relief—the reinstatement of his

status—was based on the Constitution itself. The government

did not object to appellant’s imprecision in his pleadings, nor

did it deny that a claim for constructive discharge could be

brought against the government directly under the Constitution.1

The government insisted instead that Veitch’s resignation was

wholly voluntary. In light of the parties’ posture, we shall

assume, arguendo, that if the government illegally coerced an

officer to resign, a constructive discharge claim could be

brought.2 Although we have found no cases that explicitly

discuss such a claim, there are, of course, quite a number of

constructive discharge cases that arise in the Title VII context.

See generally Penn. State Police v. Suders, 542 U.S. 129, 142-

43 (2004). To be sure, Veitch does not purport to be raising a

claim under Title VII, and although this Court has not squarely

ruled on the question, we note that every circuit to address the

issue has held Title VII inapplicable to uniformed members of

the armed services. See, e.g., Fisher v. Peters, 249 F.3d 433,

438 (6th Cir. 2001); Brown v. United States, 227 F.3d 295, 298

(5th Cir. 2000); Hodge v. Dalton, 107 F.3d 705, 707-12 (9th Cir.

1

Presumably the waiver of sovereign immunity for such a direct

action against the Navy—as opposed to the individual

defendants—would come from the Administrative Procedure Act, 5

U.S.C. § 702.

2

The existence vel non of a cause of action is not a jurisdictional

question, and therefore we may assume it without deciding. Trudeau

v. Fed’l Trade Comm’n, 456 F.3d 178, 190-91 (D.C. Cir. 2006).

7

1997); Randall v. United States, 95 F.3d 339, 343 (4th Cir.

1994); Doe v. Garrett, 903 F.2d 1455, 1459 (11th Cir. 1990);

Roper v. Dep’t of the Army, 832 F.2d 247, 248 (2d Cir. 1987);

Johnson v. Alexander, 572 F.2d 1219, 1223-24 (8th Cir. 1978);

see also Collins v. Sec’y of the Navy, 814 F. Supp. 130, 131

(D.D.C. 1993).3 Nevertheless, Title VII cases provide standards

by which to judge constructive discharge claims, and the district

court relied on them, in part, to determine that Veitch’s

resignation was voluntary. While a constitutional claim for

constructive discharge might not track the standards used to

decide Title VII cases, we think it likely that actions that did not

amount to a constructive discharge under Title VII would not

violate an employee’s constitutional protections.

Veitch’s constructive discharge claim rests on four

elements. The first, and by far the most important according to

appellant, is the Zoeller Report. Veitch focuses so heavily on

the Report because it is the only document in this case that both

defines the doctrine of pluralism and acknowledges that the

Navy Chaplain Corps requires its chaplains to preach

pluralistically. According to Veitch, the Zoeller Report’s

unconstitutional conclusions made his resignation the product of

duress, which fact thus vitiates the voluntariness of his choice

and entitles him to reinstatement. There are longstanding

precedents in the Federal Circuit holding that resignations

produced by unlawful government duress or coercion are

invalid. See, e.g., Carmichael v. United States, 298 F.3d 1367,

1372 (Fed. Cir. 2000). The test for duress is objective, and has

three parts: Under a reasonable person standard, Veitch must

show “(1) he involuntarily accepted the terms of the

3

The Equal Employment Opportunity Commission agrees with

the circuits that have decided this issue. See 29 C.F.R. §

1614.103(d)(1) (2006) (excluding uniformed members of the military

departments from Title VII’s anti-discrimination provisions).

8

government; (2) circumstances permitted no other alternative;

(3) said circumstances were the result of the government’s

coercive acts.” Id. Veitch’s difficulty is that the Zoeller Report

in no sense punished or threatened him; it simply rejected his

EO Complaint against Buchmiller. That Zoeller’s nonbinding

legal conclusions were not “coercive acts” seems obvious.

Veitch’s argument seems to be that if the Navy’s actions

against him—e.g., the dismissal of his EO Complaint—were

unlawful, then they were per se coercive, whether or not those

actions would actually force a reasonable person in Veitch’s

position to resign. For this extraordinary proposition, Veitch

relies on one Court of Claims case, Roskos v. United States, 549

F.2d 1386 (Cl. Ct. 1977), in which the court said, “An action is

not voluntary if it is produced by government action which is

wrongful.” Id. at 1389-90 (emphasis added). But in that case,

the illegal act was the unauthorized transfer of the plaintiff to

another city, which the court described as one that “[left] the

employee with no practicable alternative [but to resign].” Thus,

Roskos, far from announcing a new standard for challenges to

government action, is entirely consistent with the Federal

Circuit’s tripartite duress test. The Roskos court simply found

that “circumstances permitted no other alternative.”

Carmichael, 298 F.3d at 1372. It can hardly be claimed that the

Zoeller Report left Veitch with no practical alternative but

resignation. Indeed, Veitch could have appealed the results of

Zoeller’s investigation, but chose not to do so. Veitch thus had

a “reasonable alternative” to resignation that negates the second

duress requirement. See Kim v. United States, 47 Fed. Cl. 493,

497-98 (2000).

The second and third elements in Veitch’s constructive

discharge claim relate to the court-martial charges brought

against him. It will be recalled that he was charged, inter alia,

with disrespect to a superior officer under Article 89 of the

9

UCMJ. Here Veitch raises a rather subtle argument, relying on

a district court opinion in our circuit, Rigdon v. Perry, 962 F.

Supp. 150 (D.D.C. 1997), for the proposition that military

chaplains cannot be “superior commissioned officers” as that

term is used in 10 U.S.C. § 889, and so the Article 89 charge

against him was improper. But Rigdon did not deal with actions

alleged to be disrespectful to a superior officer, and whether or

not it is a sound interpretation of the UCMJ, nothing prevented

Veitch from contesting his court-martial on that or any other

ground.

A court-martialed serviceman or woman has a

congressionally enacted process of military appeals by which to

contest allegedly unlawful charges. And this process, notably,

does not include immediate resort to the federal courts. For

instance, after a conviction, the accused has right to review of

his or her sentence by the court-martial’s convening authority,

and, following that, by the Navy Judge Advocate General. See

generally 10 U.S.C. §§ 859-67. In certain

circumstances—including those involving sentences of

dismissal or discharge—a serviceman or woman has a right of

appeal to the United States Navy-Marine Corps Court of

Criminal Appeals, and, by petition, to the United States Court of

Appeals for the Armed Forces.4 Id. Congress thus carefully

4

On all but rare occasions, the accused may obtain a writ of

habeas corpus only after progressing through the appellate hierarchy

of military courts. See Schlesinger v. Councilman, 420 U.S. 738, 758

(1975) (“[F]ederal courts normally will not entertain habeas petitions

by military prisoners unless all available military remedies have been

exhausted.”). The one major exception to the general rule requiring

exhaustion of military court remedies prior to obtaining habeas relief

involves cases where military courts are claimed to lack jurisdiction

over the accused. In such cases, collateral attack is allowed prior to

the conclusion of military court proceedings. See id. at 746-53.

10

designed a scheme of military appeals to prevent needless

federal court review of military affairs. By resigning in the face

of his court-martial charges, however, Veitch neglected to

exhaust his military court remedies. See Parisi v. Davidson, 450

U.S. 34, 41-46 (1972) (recognizing the exhaustion requirement

applied to courts-martial when the accused could gain complete

relief before such tribunals). Veitch cannot now escape the

consequences of that decision by characterizing the court-

martial charges themselves as evidence of coercion.

Successfully contesting the court-martial would have provided

Veitch full relief from the allegedly unlawful charge under

Article 89, and when full relief is available from a court-martial,

civilian courts should require resort to that tribunal in the first

instance.

Veitch also claims that his appointed counsel led him astray

by not telling him about Rigdon and the possible defense to the

court-martial that case provided. He relies chiefly on Tippett v.

United States, 185 F.3d 1250 (Fed Cir. 1999), in which our

neighbor court held that an Army captain’s discharge was not

voluntary if based on his Army lawyer’s misrepresentation of

his legal rights, id. at 1258. Veitch never fully develops his

assertion that his Navy lawyer’s failure to bring Rigdon to his

attention was a causal factor in his decision to resign. In Tippett,

it was essentially uncontested that the plaintiff had based his

decision to resign on his military lawyer’s advice as to the effect

his resignation would have on his subsequent intent to apply for

a reserve commission. On the record before us, there is nothing

to support a conclusion that Veitch resigned because of his

lawyer’s failure to discover favorable legal precedent, which, in

this case, amounted to a single district court decision that is not

binding precedent for any other court. Such a conclusion is

further undercut by the fact that Veitch’s Navy lawyer had the

case for two days prior to Veitch’s resignation. Moreover,

Veitch was charged not only with an Article 89 offense, but also

11

with an Article 86 violation (failure to appear at an appointed

place of duty) and Rigdon, even if correctly decided (which we

doubt), has no bearing on that charge.

Finally, Veitch asserts, relying on an analogy with Title VII

cases holding that a hostile work environment can be the cause

of a constructive discharge, that he faced just such a hostile

environment at NSA Naples. As already noted, we assume,

arguendo, that Veitch may raise a constructive discharge claim

directly under the Constitution, but whether or not that is so,

such a claim could not require less of a showing than would

qualify under Title VII itself. The district court concluded that

Veitch had not presented a triable issue of fact on the question

of intolerable work conditions. On appeal, Veitch argues that

the district court ignored evidence of a hostile work environment

and failed to give Veitch the inferences to which he is entitled

as the nonmoving party on a motion for summary judgment. We

are by no means convinced that the district court erred in its

evaluation of the evidence; however, we do not believe it

necessary to resolve these questions because, viewing the record

in the light most favorable to Veitch, his claims fail to make out

a hostile work environment as a matter of law.

We have held that a plaintiff bringing an employment

discrimination claim under Title VII on the theory of

“constructive discharge” must show that the employer

deliberately created intolerable work conditions that forced the

plaintiff to quit. Clark v. Marsh, 665 F.2d 1168, 1173 (D.C. Cir.

1981). “The inquiry is objective: Did working conditions

become so intolerable that a reasonable person in the

employee’s position would have felt compelled to resign?”

Suders, 542 U.S. at 141 (citing C. Geoffrey Weirich et al., 2002

Cumulative Supplement to Lindemann & Grossman 651-52 &

n.1). We have stated before that the mere existence of

workplace discrimination is insufficient to make out a

12

constructive discharge claim; “[c]onstructive discharge . . .

requires a finding of discrimination and the existence of certain

‘aggravating factors.’” Mungin v. Katten Muchin & Zavis, 116

F.3d 1549, 1558 (D.C. Cir. 1997) (quoting Clark, 665 F.2d at

1174) (emphasis added). “Aggravating factors” are those

aspects of a discriminatory work environment that, by making

the workplace so disagreeable, prevent the reasonable employee

from seeking remediation on the job. Id. (citing Clark, 665 F.2d

at 1174).

The question before us is whether the record reveals any

aggravating factors that could give rise to a constructive

discharge. Veitch makes various claims of harassment and

discrimination by Buchmiller: Buchmiller stated twice that

Veitch would “not be doing much” in Naples; Buchmiller did

not assign Veitch collateral duties during his first thirteen

months in Italy; Buchmiller repeatedly criticized Veitch’s

sermons; Veitch was forced to share a cramped office with a

junior chaplain; Buchmiller denied Veitch the role and

responsibilities of senior Protestant chaplain; Buchmiller did not

speak to Veitch during staff meetings; Buchmiller assigned

Veitch to assist a junior chaplain in the Vacation Bible School;

Buchmiller tore a Reformation Conference poster off Veitch’s

wall; Veitch was assigned to pastor the “Maranatha” worship

service, to which Veitch’s conservative liturgical tradition was

inimical; Buchmiller spoke to Veitch in a “curt” manner. Veitch

further argues that there was a general anti-evangelical

environment at NSA Naples that contributed to the intolerable

work conditions created by Buchmiller.

Accepting these assertions as true, we conclude that, as a

matter of law, they do not constitute “aggravating factors” under

our Title VII precedents. In the context of gender

discrimination, the Supreme Court has stated that “to establish

hostile work environment, plaintiffs . . . must show harassing

13

behavior ‘sufficiently severe or pervasive to alter the conditions

of [their] employment.’” Suders, 542 U.S. at 133 (quoting

Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).

Surely the “severe and pervasive” requirement applies equally

to the evaluation of “aggravating factors” in cases alleging

religious discrimination. Here Veitch does not claim conduct

sufficiently “severe and pervasive” to create an aggravated work

environment in which an employee had no choice but to resign.

Most of Veitch’s grievances—e.g., nonselection as senior

protestant chaplain, assignment to the “Maranatha” worship

service, assignment to work with a junior chaplain, lack of

collateral duties, sharing a small office with another chaplain,

criticism from Buchmiller—have explicitly been rejected as

“aggravating factors.” See Weirich et al., supra, at 663-64

(“Generally, a failure to promote will not constitute constructive

discharge, nor will a change in job duties, a transfer, . . .

criticism, pressure from a supervisor, or being ignored by co-

workers.”) (citations omitted). Veitch’s remaining complaint is

that Buchmiller tore down his Reformation Conference poster.

Such an act, while possibly boorish and unjustified, hardly

constitutes the type of harassing behavior that would give rise to

a constructive discharge. All of these assertions, if true, may

have made Veitch’s experience at NSA Naples somewhat

frustrating. But they cannot be considered sufficiently “severe”

to leave a reasonable employee with no realistic option but to

quit his or her job. Compare, e.g., Singletary v. District of

Columbia, 351 F.3d 519, 528-29 (D.C. Cir. 2003) (remanding to

the district court for a finding on the question of hostile work

environment when the plaintiff had been forced to work in an

unheated, unventilated storage room containing brooms and

boxes of debris when more suitable office space was available).

14

III

Once determining that appellant had voluntarily

resigned—a determination we affirm—the district court,

following our opinion in Taylor v. FDIC, 132 F.3d 753 (D.C.

Cir. 1997), held that Veitch lacked standing to pursue his

broadside constitutional attack on the Navy Chaplain Corps’s

pluralism policy. We quite agree with the district court on the

assumption that the resignation stands. But appellant also

claims that the Navy acted arbitrarily and capriciously in

denying his request to withdraw his resignation, an added claim

not present in Taylor. Veitch argues that the Navy erred by

relying on the NIG’s conclusions with respect to the Zoeller

Report.5 Although Veitch does not specify, we assume—and the

government apparently concedes—that review of the Navy’s

decision is premised on the Administrative Procedure Act

(“APA”). 5 U.S.C. § 704.

There is no doubt that appellant has standing to raise his

APA claim even though, as we conclude, his resignation was

voluntary. After all, the Secretary of the Navy himself

suspended Veitch’s resignation order until the completion of the

NIG investigation, which suggests that even if his resignation

had been legally voluntary, the Navy would have permitted him

to withdraw it if the NIG investigation had shown his

supervisors acted with retaliatory motive. Thus, favorable

review of the Navy’s decision could potentially remedy Veitch’s

injury. Still, appellant’s standing to raise this claim avails him

little, for we have no grounds to conclude that the Navy acted

unreasonably in refusing his withdrawal request.

5

As part of the NIG inquiry into collateral issues surrounding

Veitch’s complaint under the Military Whistleblower Protection

Statute, 10 U.S.C. § 1034, the DoDIG instructed the NIG to

investigate Veitch’s original EO Complaint and Zoeller’s findings.

15

Veitch argues that the Zoeller Report infected the Navy’s

decisionmaking process from start to finish. If the Zoeller

Report contained unconstitutional statements about pluralism,

then, according to Veitch, it could not serve as a valid basis for

the Navy’s decision to deny his withdrawal request. But this

argument ignores the Navy’s entirely independent ground for

denying Veitch’s request, namely, the finding of no retaliation.

The NIG reported that Coyne, Buchmiller, and Gray’s actions

did not violate the Whistleblower Protection Statute, meaning

that Veitch could not point the finger at his commanding officers

to explain his disciplinary problems. Thus even if Zoeller’s

conclusions had been palpably unconstitutional, the fact that

there was no retaliation for the EO Complaint means that

Veitch’s request would still have been denied because his

disciplinary troubles were the result of his own misconduct.

Veitch offers no reason for us to doubt the verity of the NIG’s

conclusion about retaliation, let alone disturb such a finding

under our limited scope of review. The deference we owe an

agency decision under the arbitrary and capricious test precludes

our reweighing the factors leading the Navy to deny his request.

IV

Based on the foregoing, we affirm summary judgment as

to all claims.

ROGERS, Circuit Judge, concurring: The Navy has never

challenged Rev. D. Philip Veitch’s lawsuit on the ground that he

states no cause of action for constructive discharge. As the court

acknowledges, Op. at 6 n.2, the existence of a cause of action in

a complaint is not jurisdictional and may be assumed without

being decided by the court. Air Courier Conference v. Am.

Postal Workers Union, 498 U.S. 517, 523 n.3 (1991) (citing

Burks v. Lasker, 441 U.S. 471, 476 n.5 (1979)). Although courts

enjoy discretion to consider non-jurisdictional issues raised for

the first time on appeal, Acree v. Republic of Iraq, 370 F.3d 41,

58 (D.C. Cir. 2004), no “extraordinary circumstances” exist here

as would warrant the court’s consideration of the issue. See

Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419

n.5 (D.C. Cir. 1992). The Navy has never argued in the district

court or this court that Rev. Veitch has failed to state a cause of

action for constructive discharge. Consequently, the issue has

not been briefed by the parties on appeal. Further, during oral

argument, when the court raised the issue, counsel for the Navy

did not adopt the position that there was no such cause of action.

Because, regardless of the cause of action, the evidence

shows that Rev. Veitch voluntarily resigned from the Navy, he

lacks standing to bring, and the court lacks jurisdiction to

consider, his claim for reinstatement or his equitable claims

regarding the conditions of his former employment. See Taylor

v. Fed. Deposit Ins. Corp., 132 F.3d 753, 766-68 (D.C. Cir.

1997). Consequently, the court has no occasion to consider the

nature of the evidentiary burden, Op. at 6-7, nor whether Rev.

Veitch met that evidentiary burden in opposing the Navy’s

motion for summary judgment to show that the Navy’s

“pluralism” policy1 violated his rights under the First and Fifth

1

The Navy’s pluralism policy is discussed in the Zoeller

Report, see Op. at 3, wherein Chaplain Gary Morris, of the United

Methodist faith, reported that chaplain trainees “are taught that

2

Amendments; the Religious Freedom Restoration Act, 42 U.S.C.

§ 2000bb; or Navy regulations.

The Navy rightly points out that if Rev. Veitch cannot prove

that he was constructively discharged from the Navy, all of his

remaining claims, which concern the conditions of his former

employment as chaplain and for which he seeks only injunctive

and declaratory relief, fail for lack of Article III standing. The

Supreme Court has instructed that “[p]ast exposure to illegal

conduct does not in itself show a present case or controversy

regarding injunctive relief . . . if unaccompanied by any

continuing, present adverse effects.” City of L.A. v. Lyons, 461

U.S. 95, 102 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488,

495-96 (1974)) (omission and alteration in original, internal

quotation marks omitted). If Rev. Veitch’s resignation from the

Navy was voluntary, then he has no legal right to reinstatement

to his position as a Navy chaplain, and the court cannot grant

him the declaratory and injunctive relief he seeks regarding the

conditions of his prior employment. This court stated in Bois v.

Marsh, 801 F.2d 462, 466 (D.C. Cir. 1986), that a plaintiff who

has voluntarily resigned from the armed forces “stands in the

civil courts as a civilian seeking reform of military procedures

to which she is no longer subject.” To bring this appeal

claiming First and Fifth Amendment and statutory violations,

therefore, Rev. Veitch must be able to show that his resignation

is traceable to the Navy, specifically, on his terms, that he was

coerced as a result of retaliation by the Navy for protesting the

alleged religious discrimination and statutory violations he

suffered. In other words, Rev. Veitch must prove constructive

discharge.

facilitating other religions and ministries is essential,” along with

“respect for other differences and traditions of faith especially when

[a Navy] chaplain might have a mixed [faith] congregation.” Joint

Appendix at 649.

3

This court has declared:

“[A] constructive discharge occurs where the employer

creates or tolerates discriminatory working conditions

that would drive a reasonable person to resign.” It

does not occur when an employee leaves an unpleasant

but objectively tolerable job because alternatives have

become more attractive, even if the employer’s

misbehavior creates the unpleasantness . . . .

Taylor, 132 F.3d at 766 (quoting Katradis v. Dav-El of Wash.,

846 F.2d 1482, 1485 (D.C. Cir. 1988)) (alteration in original).

The question, then, is whether Rev. Veitch has presented

evidence from which a reasonable jury could conclude that his

resignation was forced by the Navy. Although he is entitled as

the non-moving party to the benefit of all reasonable inferences,

he cannot rely in opposing summary judgment on mere

allegations in his unsworn complaint, much less on assertions

made in his brief on appeal; the court may consider only sworn

statements setting forth specific facts. Celotex Corp. v. Catrett,

477 U.S. 317, 324 (1986); Liberty Lobby, Inc. v. Dow Jones &

Co., 838 F.2d 1287, 1292 (D.C. Cir. 1988); FED. R. CIV. P.

56(e).

In Taylor, the court considered what constructive discharge

requires. The plaintiffs in that case were former employees of

the Resolution Trust Corporation (“RTC”) who alleged that

RTC’s successor corporation, the Federal Deposit Insurance

Corporation, retaliated against them for making protected

disclosures in violation of the RTC Whistleblower Act, 12

U.S.C. § 1441a(q), and the First Amendment. 132 F.3d at 758-

59. The court noted that the plaintiffs endured whatever the

defendant inflicted upon them until May 1995, when they took

advantage of the severance package offered by the Voluntary

Separation Incentive Program. The plaintiffs did not suggest

4

that any simultaneous increase in the “wattage of harassment”

drove them out. Id. at 766. While the court noted that what

would drive a reasonable person to resign “may vary with the

character of the job for which the employee was hired and thus,

indirectly, with the employee’s skills,” it held that the plaintiffs

had presented no triable issue of fact on the question of

constructive discharge. Id. The court vacated the grant of

summary judgment and remanded the case for the district court

to dismiss the complaint.

Rev. Veitch similarly claims that his resignation was forced

because of past discrimination—which he tolerated while

engaging in an exchange of emails with Captain Buchmiller,

filing an Equal Opportunity complaint, and considering filing

another complaint. Ultimately, however, Rev. Veitch resigned

rather than face disciplinary proceedings for his disrespectful

emails and unexplained absences. This does not render his

resignation involuntary. See Pitt v. United States, 420 F.2d

1028, 1032-33 (Ct. Cl. 1970); Kim v. United States, 47 Fed. Cl.

493, 497-98 (2000). Rev. Veitch presents no evidence to

suggest that past discrimination required him to be disrespectful

in violation of the Uniform Code of Military Justice as alleged,

or, shy of that, that the Captain’s Mast or court-martial

proceedings would have been so unfair so as to force his

resignation. To the contrary, the claims he raises here could

have been raised before a Navy tribunal. Op. at 10.

Other courts have agreed that the standard for constructive

discharge is quite high. “Resignations or retirements are

presumed to be voluntary,” Tippett v. United States, 185 F.3d

1250, 1255 (Fed. Cir. 1999), and a party alleging that a facially

valid resignation was in fact the product of unlawful duress must

prove three elements: (1) one side involuntarily accepted the

terms of another; (2) the circumstances permitted no other

alternative; and (3) the circumstances were the result of coercive

5

acts of the opposite party, Roskos v. United States, 549 F.2d

1386, 1389 n.11 (Ct. Cl. 1977); see also Kim, 47 Fed. Cl. at 497.

Under the standard for summary judgment, Rev. Veitch cannot

succeed in showing here that the circumstances permitted no

option except resignation from the Navy.

Alternatively, Rev. Veitch contends that the voluntariness

of his resignation was vitiated by his attorney’s failure to inform

him of Rigdon v. Perry, 962 F. Supp. 150 (D.D.C. 1997). This

argument strains credulity, for the district court opinion is

binding neither on the Navy’s understanding of Article 89 of the

Code of Military Justice nor on this court.

Article III standing requires the plaintiff to show that his

injury is “fairly traceable to the defendant’s allegedly unlawful

conduct.” Allen v. Wright, 468 U.S. 737, 751 (1984). As the

court reasoned in Taylor:

Our rejection of [the plaintiffs’] claim of constructive

discharge is concomitantly a decision that their

voluntary acts are sufficient independent causes of

their separation from the RTC.

This is quite consistent with [the plaintiffs’]

(theoretically) having a claim against the RTC for its

earlier mistreatment. . . . Had [the plaintiffs] remained

[employed at the RTC], they might have been entitled

to some sort of restoration of their earlier status; having

left under circumstances for which the RTC is not

legally culpable, however, they cannot claim that the

RTC has deprived them of their jobs, even if its prior

treatment of them, though falling short of constructive

discharge, was actionable. Failing to show causation,

they lack standing.

6

132 F.3d at 767. Had Rev. Veitch pressed his broad attack

against the Navy’s “pluralism” policy only on constitutional and

statutory grounds, the court would lack jurisdiction to hear the

case altogether. However, Rev. Veitch also contends that the

Navy acted arbitrarily and capriciously in denying his request to

withdraw his resignation. Although he has standing to raise this

claim, it fails on the merits, see Op. at 14-15.

Accordingly, because Rev. Veitch failed to present evidence

establishing a material issue of disputed fact as to whether he

was constructively discharged from the Navy, nor met his

burden to show that the Navy acted unreasonably in denying his

request to withdraw his resignation, I concur in affirming the

grant of summary judgment to the Navy.