Petition for Writ of Certiorari — Furniss Harkness, Petitioner v. Richard V. Spencer, Secretary of the Navy

Supreme Court briefDec 29, 2017

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QUESTIONS PRESENTED FOR REVIEW

Furniss Harkness, a Navy Reserve chaplain,

challenged Navy Chaplain Corps (“CHC”) promotion

denominational preferences and retaliation.

Chaplains are religious leaders commissioned to

provide religious ministry to the Navy as

denominational representatives. Respondent has no

objective measurement standards for ministry, a

uniquely religious term. Chaplains have no authority

to act as the Sovereign’s agent yet Respondent allows

chaplain promotion board members to use the

Sovereign’s power to secretly destroy other chaplains’

careers. Three questions are presented for review:

Harkness claimed the CHC retaliated against

him for exercising his First Amendment rights by

joining a lawsuit challenging CHC religious

preferences. Harkness appealed the district court’s

holding Orloff v. Willoughby, 345 U.S. 83 (1953)

denied it jurisdiction over his retaliation claim. The

Sixth Circuit did not overrule the district court but

dismissed Harkness’s claim for lacking sufficient

details, adopting Respondent’s prior claim the

district court had rejected. Respondent did not crossappeal that ruling or raise the issue in the appeal.

The question for review is did the Sixth

Circuit’s dismissal of Harkness’s claim offend the

Supremacy Clause; the First and Fifth Amendments;

and the Judiciary’s duty under Article III when it

dismissed Harkness’s retaliation claim relying on (a)

a case not addressing constitutional issues; (b)

adopting Respondent’s rejected argument which he

did not cross-appeal; and (c) ignoring Fed. R. Civ. P

12(b)(1) precedent in reviewing a motion to dismiss.

The Sixth Circuit dismissed Harkness’s

statistics because they were “too old” and missed

confounding factors the Sixth Circuit speculated

would have made a difference, factors neither party’s

expert considered because the military promotion

system considers them before announcing candidates

who qualify for consideration.

The question for review is did the Sixth

Circuit violate Harkness’s right to petition for

redress by: (a) ignoring precedent holding prior

evidence of discriminatory practice is relevant in

cases like this; (b) using speculative confounding

factors to disregard statistics in an area where courts

have no expertise without showing they made a

difference in the statistical results; and (c) not

requiring Respondent to present evidence supporting

his claim Harkness’s statistics were deficient.

Chaplain promotion boards promote chaplains

when board members anonymously score each

candidate’s record of “ministry.” The Navy’s

“blackball” voting machine allows 5 choices: 0, 25,

50, 75 and 100. The Naval Inspector General (“NIG”)

found a “0" vote guarantees a candidate’s non-

iii

selection, destroying his/her career. Candidates

sharing a denomination with a board president or

member have statistically significant higher

promotion rates than chaplains who do not.

The question presented for review is did the

Sixth Circuit fail to properly review Harkness’s

Establishment and Due Process Clause claims by (a)

ignoring evidence of 38 years of denominational

preferences; (b) rejecting statistical significance as

evidence of denominational non-neutrality in

promotion decisions; (c) limiting its review to the

administrative record; (d) ignoring the obvious fusion

of civic and religious power through Respondent’s

chaplain “blackball” promotion procedures; and (e)

not recognizing the procedures are unconstitutional

on their face.

PARTIES TO THE PROCEEDING

Furniss Harkness is the Petitioner here and

was the appellant and plaintiff in the case and courts

below.

Respondent is the Secretary of Navy and was

the appellee and defendant. He is sued in his official

capacity.

CORPORATE DISCLOSURE STATEMENTS

Petitioner is a private citizen and not a

corporation.

Respondent is the Secretary of Navy, in his

official capacity.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW . . . . . . . i

PARTIES TO THE PROCEEDING. . . . . . . . . . . . . iv

CORPORATE DISCLOSURE STATEMENTS . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . ix

GLOSSARY AND ABBREVIATIONS. . . . . . . . . . xiv

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS . . . . . . . . . . . . . 2

STATUTORY AND REGULATORY PROVISIONS . 2

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 8

Factual Background . . . . . . . . . . . . . . . 8

Promotions . . . . . . . . . . . . . . . . . . . . . 11

Proceedings Below . . . . . . . . . . . . . . . 15

REASONS FOR GRANTING THE PETITION . . . 19

II.

III.

Dismissing Harkness’s Retaliation Claim

Violated His First Amendment and Due

Process Rights . . . . . . . . . . . . . . . . . . . . . . . . 19

Orloff Does Not Bar Jurisdiction over

Constitutional Claims . . . . . . . . . . . . 22

This Decision Violates the Cross-Appeal

Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Dismissing Harkness’s Statistics as “Too Old”

and Missing Speculative Factors Raises

Constitutional Issues. . . . . . . . . . . . . . . . . . . 24

Precedent Holds “Old” Statistics Can Be

Relevant in Discrimination Cases . . . 25

Dismissing Statistics Based on

Speculative Factors Respondent Has

Not Legitimately Raised Violates the

Principle and Rule . . . . . . . . . . . . . . . 26

The Sixth Circuit Did Not Properly Review

Harkness’s Establishment and Due Process

Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

vii

Harkness’s Statistics Demonstrate the

Procedures Produced Denominational

Preferences for 38 Years. . . . . . . . . . . 33

The Circuit’s Rejection of Statistical

Significance as a Meaningful Measure

of Non-neutrality Is a Corrosive

Precedent. . . . . . . . . . . . . . . . . . . . . . . 34

Limiting Review of Harkness’s

Establishment Claims Conflicts with

the Judiciary’s Duties to Carefully

Examine Establishment Claims . . . . 37

The Judiciary’s duty is to

interpret and enforce the

Constitution . . . . . . . . . . . . . . . 37

Establishment claims require

detailed judicial examination . 39

Courts cannot ignore identified

investigations showing

Establishment violations . . . . 39

The duty to thoroughly review

establishment claims overrides

administrative record review

limitations . . . . . . . . . . . . . . . . 41

viii

Respondent’s Chaplain Blackball

Promotion Procedures Fuse Civic and

Religious Power . . . . . . . . . . . . . . . . . 45

The Challenged Procedures Are Facially

Unconstitutional . . . . . . . . . . . . . . . . . 48

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

TABLE OF AUTHORITIES

FEDERAL CASES:

Barghout v. Bureau of Kosher Meat and Food

Control, 66 F.3d 1337 (4th Cir. 1995) . . . . . . 47

Bazemore v. Friday, 478 U.S. 385

(1986) . . . . . . . . . . . . . . . . . . . . . . . . . 25-27, 31

Bd. of Ed. of Kiryas Joel v. Grumet, 512 U.S. 687

(1994) . . . . . . . . . . . . . . . . . . 5, 6, 18, 31, 45-46

Cantwell v. Connecticut, 310 U.S. 296 (1940) . . . . . . 4

Castaneda v. Partida, 430 U.S. 482 (1977) . . . . . . . 35

Chappell v. Wallace, 462 U.S. 296 (1983) . . . . . . . . 21

City of Boerne v. Flores, 521 U.S. 507 (1997) . . . . . 37

City of Lakewood v. Plain Dealer Pub. Co., 486 U.S.

750 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Church of Lukumi Babalu Aye v. City of Hialeah, 508

U.S. 520 (1993) . . . . . . . . . . . . . . . . . . . . 39, 49

Commack Self-Service Kosher Meats, Inc. v. Weiss,

294 F.3d 415 (2d Cir. 2002), cert denied, 537

U.S. 1187 (2003) . . . . . . . . . . . . . . . . . . . 47-48

Committee for Public Education v. Nyquist, 413 U.S.

756 (1973) . . . . . . . . . . . . . . . . . . . 7, 37, 39, 47

Coolidge v. New Hampshire, 403 U.S. 443 (1971)

County of Allegheny v. ACLU, 492 U.S. 573

(1989) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 17, 36

Curtis v. Peters, 107 F.Supp.2d 1 (D.D.C. 2000) . . . 12

Dilley v. Alexander, 603 F.2d 914 (D.C. Cir. 1979) . 39

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1

(2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Emory v. Secretary of Navy, 819 F.2d 291

(D.C. Cir.1987). . . . . . . . . . . . . . . . . . . . . . . . 21

Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866) . . 3, 21

Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S.

123 (1992) . . . . . . . . . . . . . . . . . . . . . . . . 42, 43

Gillette v. U.S., 401 U.S. 437 (1971) . . . . . . . 7, 37, 39

Grendel's Den, Inc. v. Goodwin, 662 F.2d 102 (1st

Cir. 1981), aff’d sub nom, Larkin v. Grendel’s

Den Inc., 459 U.S. 116 (1982) . . . . . . . . . . . . 47

Greenlaw v. U.S., 554 U.S. 237 (2008) . . . . . . . . 5, 23

Hamdi v. Rumsfield, 524 U.S. 507 (2004). . . . . . . . 20

Harkness v. Secretary, 2:13-cv-3003 (W.D. Tenn.

2/24/15). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Harkness v. Secretary, 174 F.Supp.3d 990 (W.D.

Tenn. 2016), aff’d, 858 F.3d 437 (6th Cir.

2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Harkness v. Secretary, 858 F.3d 437 (6th Cir. 2017). 1

Harkness v. U.S., 727 F.3d 465 (6th Cir.

2013) . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 9, 41

Hazelwood School District v. U.S., 433 U.S.

(1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

In re Navy Chaplaincy, 738 F.3d 425 (D.C. Cir.

2013), cert denied, 135 S.Ct. 86 (2014) . . . . . 28

Jones v. City of Opelika, 316 U.S. 584 (1943) . . . . . . 4

Larkin v. Grendel’s Den Inc., 459 U.S. 116

(1982) . . . . . . . . . . . . . . . . . . 5, 6, 18, 31, 45, 46

Lemon v. Kurtzman, 403 U.S. 602 (1972) . . . . . . . . 17

Marbury v. Madison, 5 U.S. 137 (1803) . . . . . . . . . 38

Matthews v. Eldridge, 424 U.S. 319 (1976). . . . . . . 20

xii

Mendez v. Seaman, 453 F.2d 197

(5th Cir. 1971) . . . . . . . . . . . . . . . . . . 16, 20, 23

Olmstead v. U.S., 277 U.S. 438(1928) . . . . . . . . . . . . 5

Orloff v. Willoughby, 345 U.S. 83 (1953) 15, 16, 20-23

Palmer v. Shultz, 815 F.2d 84

(D.C. Cir. 1987) . . . . . . . . . . . . . . . . . 26, 28, 35

Phillips v. Cohen, 400 F.3d 388 (6th Cir.

2005). . . . . . . . . . . . . . . . . . . . . . . 25, 27, 28, 31

Schuler v. Rhodes, 416 U.S. 232 (1994). . . . . . . . . . 24

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). 24

United Air Lines, Inc. v. Evans, 431 U.S. 553

(1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

U.S. v. Brown, 381 U.S. 437 (1965) . . . . . . . . . . . . 38

Ward v. Caldera, 138 F.Supp.2d 1 (D.D.C. 2001) . 12

Watson v. Fort Worth Bank & Tr., 487 U.S. 977

(1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

W.Va. State Board of Ed. v. Barnette, 319 U.S. 624

(1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

xiii

FEDERAL STATUTES

10 U.S.C. § 612 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

10 U.S.C. § 615 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

10 U.S.C. § 14502 . . . . . . . . . . . . . . . . . . . . . . 2, 41, 44

10 U.S.C. § 14502(b). . . . . . . . . . . . . . . . . . . . . . . . . 17

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

MISC

Federal Rule of Civil Procedure 8 . . . . . . . . . . . . . . 42

Naval Personnel Command 2014 Active Officer

Promotion Brief . . . . . . . . . . . . . . . . . . . 12, 25, 32, 41

xiv

GLOSSARY AND ABBREVIATIONS

CAPT

Captain

CHC

The Navy Chaplain Corps

Chief

The Navy Chief of Chaplains

CDR

Commander

Deputy

The Navy Deputy Chief of

chaplains

Fitness Report

Navy official form used to

evaluate an officer’s performance

of duties that becomes part of the

officer’s record and the basis for

promotions

SSB

Special Selection Board, a

statutory board to provide relief

for victims of promotion board

errors, misconduct or injustice

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully petitions this Court for

a writ of certiorari to review the United States Court

of Appeals for the Sixth Circuit’s judgment in this

case.

OPINIONS BELOW

The U.S. Court of Appeals for the Sixth

Circuit’s May 31, 2017, decision denying petitioner’s

appeal, the “Decision”, is reported at 858 F.3d 437

(6th Cir. 2017) and set forth in the Appendix at 1a36a. The Sixth Circuit’s August 17, 2017, order

denying petitioner’s en banc petition is unreported

but set forth at Pet.App.41a-42a. The district court’s

decision granting respondent’s summary judgment

motion and denying petitioner’s summary judgment

motion is reported at 174 F.Supp.3d 990 (W.D. Tenn.

2016) and set forth in the Appendix at 1b-63b. The

courts had jurisdiction under 28 U.S. § 1331.

JURISDICTION

The Sixth Circuit entered its judgment May

31, 2017, granted petitioner a one-week extension to

file his en banc petition, Pet.App.30a and denied

petitioners’ request for rehearing en banc August 17,

2017, Pet.App.32a. On October 20, 2017, Justice

Kagan, extended petitioner’s time to file a petition

for writ of certiorari to and including December 29,

2017, as set forth at Pet.App.34a-35a. 28 U.S.C.

§1254(1) provides the Court jurisdiction.

CONSTITUTIONAL PROVISIONS

The relevant portions of the Constitution’s

Article V Supremacy Clause and its First and Fifth

Amendments are set forth in the Appendix at 1c.

STATUTORY AND REGULATORY

PROVISIONS

The relevant portions of 10 U.S.C. § 14502 are

set forth in the Appendix at 1c-3c.

The relevant portions of Respondent’s

regulations are set forth in the Appendix at 1d-5d.

INTRODUCTION

This petition presents three exceptional

questions that have grave and extraordinary

implications for the fundamental rights of all

military personnel. Petitioner, Chaplain Furniss

Harkness asks this Court to address exceptionally

wrong decisions by the courts below that impact all

military personnel.

Harkness seeks this Court’s intervention to

reestablish the Constitution as the supreme law for

“rulers and people, equally in war and in peace” so

the “shield of its protection [for] all classes of men, at

all times, and under all circumstances”, Ex Parte

Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), covers

military personnel.

Harkness raises critical constitutional

questions whether formerly well-established

precedent implementing a foundational

constitutional rule and a long-established legal

principle continue as binding precedents. Here, the

lower courts ignored them addressing the

Establishment and Right to Petition Clauses’

neutrality mandates.

First is the continued authority of the First

Amendment rule (hereafter the “Rule”): government

cannot “ma[k]e enjoyment of the freedom which the

Constitution guarantees contingent upon the

uncontrolled will of administrative officers.” Jones v.

City of Opelika, 316 U.S. 584, 599–600 (1943)

(citation omitted).

Specifically, does the Rule prohibit

Respondent’s delegation to senior denominationalrepresentatives1 unbridled power to retaliate for

challenging denominational preferences and to veto

junior chaplains’ promotions.

The Bill of Rights purpose “was to withdraw

certain subjects from the vicissitudes of political

controversy, to place them beyond the reach of

majorities and officials and to establish them as legal

principles to be applied by the courts.” W.Va. State

Board of Education v. Barnette, 319 U.S. 624, 638

(1943). The Bill of Rights established the Rule as a

bulwark against arbitrary government power over

citizens’ rights. “If there is any fixed star in our

constitutional constellation, it is that no official, high

or petty, can prescribe what shall be orthodox in

politics, nationalism, religion, or other matters of

opinion ....”, id. at 648.

Cantwell v. Connecticut, 310 U.S. 296, 305-07

1 “Denominational-representative” is hyphenized to emphasize

this fact: chaplains’ identity as officers is their unique role as

representatives and agents of a denomination; their duty

limitations because of their religious nature show that role is

inseparable from their identity as naval officers.

(1940) applied the Rule in a religious liberty context.

Bd. of Ed. of Kiryas Joel Village v. Grumet, 512 U.S.

687, 697-99 (1994), and Larkin v. Grendel’s Den Inc.,

459 U.S. 116, 123-125 (1982) applied the Rule in the

special context of the Establishment Clauses’s

mandate of government’s religious neutrality when

persons or organizations defined by their religious

identity are delegated discretionary civic power.

The second issue is the “principle of party

presentation” (the “Principle”) and its corollary

“cross-appeal rule.” Greenlaw v. U.S., 554 U.S. 237,

243 (2008). These protect litigants’ Right to Petition

and Due Process. Id.

The Sixth Circuit’s decision undermines both

the Rule and the Principle establishing new

precedent authorizing lower courts to ignore the

Rule, the Principle and their precedents. This is

judicial anarchy. See Olmstead v. U.S., 277 U.S. 438,

485 (1928) (Brandeis, J., Dissenting) (“Crime is

contagious. If the Government becomes a

lawbreaker, it breeds contempt for law; it invites

every man to become a law unto himself; it invites

anarchy”).

Petitioner Furniss Harkness is a Naval

Reserve chaplain “with a long history of advocating

for reform,” Harkness v. U.S., 727 F.3d 465, 468 (6th

Cir. 2013) (“Harkness-I”). Chaplain Harkness

appeals the Sixth Circuit’s rejection of the Rule and

Principle in approving Respondent’s retaliation

against him for challenging CHC promotion

procedures and dismissing that challenge despite two

acknowledged facts. First, each chaplain is

commissioned to serve as a specific religious

community’s denominational-representative, id.

(citation omitted), to which he/she remains

accountable for ministry, the religious duty for which

he/she was hired. Second, the CHC’s unique

“blackball” promotion procedure delegates to these

denominational-representatives unbridled civic

authority to secretly and arbitrarily destroy a

promotion candidate’s career.

This delegation occurs in Respondent’s

promotion system where:

! board proceedings, the candidates’ official

personnel records and fitness reports are protected

from disclosure;

! there are no quantifiable, objective standards for

ministry, each chaplain’s duty; and

! no effective guarantees, systematic checks, or

monitoring procedures ensure religious factors don’t

influence promotions.

Inspector General (“IG”) investigations show

denomination has influenced promotions; this will

continue absent judicial intervention. Whether

Respondent’s procedures violate the First

Amendment should be an easy question of law given

the Rule, Grumet, and Larkin.

Harkness’s statistics, including Respondent’s

Center for Naval Analysis (“CNA”) promotion study,

show Respondent’s “blackball” procedures,

unchanged for over 38 years, allow chaplain board

members’ denominations to influence chaplain

promotions, creating denominational preferences.

This is reflected in denominational promotion

hierarchies with distinct, statistically significant

promotion rates depending upon a denomination’s

place in the hierarchy. This unconstitutionally

makes denomination more important to a chaplain’s

standing in the military community than the

chaplain’s record. See County of Allegheny v. ACLU,

492 U.S. 573, 594 (1989).

The Sixth Circuit’s decision, affirming the

district court, obscured/ignored critical facts and

rejected precedent addressing: statistics-evaluation;

fusing government and religious power; and the

Establishment Clause’s mandate to examine

challenged practices for subtle violations of religious

neutrality. The Circuit ignored its duty to carefully

examine any practice “challenged on establishment

grounds with a view to ascertaining whether [the

practice] furthers any of the evils against which that

Clause protects.” Committee for Public Education v.

Nyquist, 413 U.S. 756, 794 (1973); accord Gillette v.

U.S., 401 U.S. 437, 452 (1971).

This decision assaults two precedents. First,

the Constitution is the nation’s supreme law,

protecting every citizen, including military

personnel. Second, a court cannot use unsupported

speculation to reject statistics in areas where courts

have no expertise.

Correcting this decision is vitally important.

Its words are contrary to this Court’s and other

circuits’ precedent on important issues of addressing

the military community’s fundamental rights.

Uncorrected, the Sixth Circuit’s decision sends

chilling, hostile messages to a unique but important

community with unquestioned importance to

America’s security.

This is not "just" one minority creed chaplain’s

minor dispute. His case is now precedent, allowing

lower courts to abuse their discretion and avoid their

duty to enforce the Constitution’s protections for a

small but important community infrequently in the

courts.

STATEMENT OF THE CASE

Factual Background

Harkness, now retired, joined 16 other Nonliturgical chaplains in 2000 to legally challenge Navy

denominational prejudice against Non-liturgical

chaplains. Harkness-I, 727 F.3d at 468. That case is

now styled In re Navy Chaplaincy (“Chaplaincy”) in

the D.C. District Court.

The fiscal year (“FY”) 2007 Reserve Chaplain

Captain (“CAPT”) Selection Board (the “07Board”)

denied Harkness promotion. He requested a Special

Selection Board (“SSB”) because the 07Board failed

to meet Respondent’s Reserve officer requirement,

which Respondent denied. Harkness filed suit in

Memphis, Tennessee. Harkness-I, 727 F.3d at 468.

The court dismissed Harkness’s constitutional

challenges for failure to exhaust administrative

remedies, which Harkness-I affirmed. Id. at 466.

Respondent granted an SSB, mooting the case.

That SSB denied Harkness promotion.

Harkness requested a second, denominationally

neutral SSB, challenging the Board’s composition

and its procedures’ constitutionality, claiming they

lacked “effective guarantees” preventing the

unbridled power delegated to denominationalrepresentatives board members from religiously

influencing decisions. Pet.App.1e-2e. The procedures

included: small number of board members voting

secretly using a blackball/blackbox voting machine,

the Chief or Deputy as board president, and board

members briefing candidates’ records. Pet.App.4e.

Harkness cited CHC board investigations exposing

denominational preferences, board misconduct and

board presidents’ influence. Id.

Harkness then requested an SSB for the FY

2014 CAPT board challenging its board procedures’

constitutionality and chaplain board member CAPT

William Wildhack’s eligibility. Regulations barred

detailers from board membership. Wildhack

functioned as the Reserve CHC detailer; was hostile

to Harkness; and the other chaplain, RADM Horn,

shared Wildhack’s denomination, neither was a nonliturgical. Pet.App.8e-9e. Harkness’s SSB request

provided two statistical studies, Pet.App.9e

(extracts).

1: Dr. Leuba’s Statistical Evidence of the

Navy’s Religious Preferences (“Preferences”) analyzed

the Chief s’ impact on promotions as CHC board

presidents. Pet.App.1g-16g (extracts). Preferences

found: “More than 80% of the uncertainty in whether

one will be promoted or not can be explained by the

correlation (similarity) between the religious beliefs

among the Promotion Board members and the

candidate’s denomination!” Pet.App.5g, ¶ 2.19.11.2.

Promotion rates for CDR and CAPT candidates who

“matched” or shared the Chief’s denomination were

statistically significantly higher than for candidates

who did not share the Chief’s denomination; for

CAPT, 78.5% versus 50.45%. Pet.App.8g-9g, Table. 9,

¶¶ 2.20.5 and 2.20.5.1;

2: Dr. Leuba’s 38 Years of Denominationalism

(“Denominationalism”), Pet.App.17g-25g (extracts),

examined four denominationally different data-sets

for Chiefs: (a) Catholic (“RC”); (b) Southern Baptist

(“SB”); (c) all other denominations which “Have-Hada-Chief” (“CoC”-four large Liturgical and three small

denominations with few chaplains), and (d) all

denominations which “Have-Never-Had-a-Chief”.

Denominationalism measured actual rank

increases for each denominational grouping based on

active duty chaplain lists for the time period a Chief

was in office, demonstrating the Chiefs’ 1974 to 2013

promotion impact. The CHC promotion rates by

rank differences for the four groupings for 38 years

are statistically significantly different. Pet.App.20g.

Respondent denied Harkness’s SSB requests.

Harkness then sued alleging: the challenged

procedures were unconstitutional and violated the

Religious Freedom Restoration Act; Respondent’s

SSB denials were arbitrary and capricious; and the

CHC retaliated against him for exercising his First

Amendment Rights. Pet.App.4b-7b.

Promotions

Respondent assigns each chaplain an

“additional qualification designator”, a code

identifying that chaplain’s denomination as his/her

special skill. Chaplain promotions reward past

ministry reflected in fitness reports, see Glossary.

Board members discern the probability of ministry

effectiveness at the next rank. Respondent has no

objective standards for evaluating “ministry”, a

religious term whose parameters differ among

denominations.

Promotion boards require at least five officers,

one from the category under consideration, if

available. 10 U.S.C. § 612. 10 U.S.C. § 615(a)(4)

requires Respondent provide board members

“information or guidelines relating to the needs of

the armed force concerned for officers having

particular skills”. No precept or convening order has

described the Navy’s specific chaplain “needs” or

“skill sets” by rank in detail or in general.

Naval Personnel Command 2014 Active

Officer Promotion Brief (“Prom.Brief”) describes the

challenged promotion board procedures which the

Reserves also use.

www.amdo.org/Active_Officer_Promotion_Brief_(Rev

_2014).pdf

The Army and Air Force use large boards, 1825 members, who individually evaluate each record

and vote in a system that records each member’s vote

for each candidate, providing board member

accountability. Curtis v. Peters, 107 F.Supp.2d 1, 3

(D.D.C. 2000) (describing Air Force “selection board

of 25 members” on five panels whose members

“reviewed each file and individually scored each

candidate on a scale of 6 to 10”); Ward v. Caldera,

138 F.Supp.2d 1, 3 (D.D.C. 2001) (Army boards

required 18 members).

Navy Chaplain promotion boards are small,

normally six to seven members, including the Chief

or Deputy. Board members are sworn to make

judgments on the basis of what they understand to

be the Navy’s best interests for officers “possessing

particular skills.” Votes are secret and unrecorded.

10 U.S.C. § 613a protects promotion board

proceedings from disclosure absent Respondent’s

approval. The Privacy Act and Navy regulations

protect each chaplain’s record, limiting objective

comparisons of chaplains’ records.

The NIG FY 2000 Chaplain CAPT Board

investigation substantiated CDR Washburn’s

allegation the female chaplain board member “zeroed

out” Washburn’s promotion to CAPT for theological

reasons. RADM Black, the Chief, explained a board

member can anonymously vote “zero” in a

“preemptive strike”, guaranteeing promotion denial.

Pet.App.3f (shaded in original exhibit). Washburn

“had served on approximately six selection boards ...

seen the [zeroing out] process and how it could be

perverted if someone wanted because of the vehicle of

secret voting.” Washburn NIG testimony, Pet.App.9f.

Preferences cites the Washburn NIG and shows how

“zeroing out” works, Pet.App.12g-15g. Respondent

has never denied zeroing out occurs, destroying

chaplains’ careers.

Harkness presented the district court evidence

of denominational favoritism, prejudice and

misconduct before and after the CHC litigation

began in 1999-2000.

Before: two chaplain CHC statistical promotion

studies, the Center for Naval Analysis (“CNA”)’s

March 2000 Promotion Report Respondent ordered,

and NIG and DODIG FY 97 and 98 Commander

boards investigations.

After: the Chaplaincy Plaintiffs’ and Harkness’s

CHC statistical promotion studies, including the

effect of reducing chaplain board members; NIG

reports; and sworn personal anecdotes.

Inspectors General (“IG”) investigated four

Chaplain Promotion boards, FYs 1997, 1998, 2000,

and 2009. Each found misconduct from

denominational influences, e.g, RADM Holderby

admitted the FY 97 commander board selected for

denominational considerations a Catholic with a poor

record over a Baptist with a great record. Harkness’s

SSB requests and Dr. Leuba’s analysis referenced

these investigations. The discrimination victims

initiated all IG investigations finding board

misconduct/denominational influence, not board

members, recorders (responsible for keeping the

board fair), or those reviewing board reports.

Respondent must administratively review

promotion board decisions to ensure the board chose

its authorized number and no discipline or

administrative actions disqualified a selectee. No

procedure detects or monitors promotion board

discrimination or denominational preferences.

Proceedings Below

Harkness filed suit challenging Respondent’s

promotion procedures’ constitutionality, his SSBs

denial and claiming retaliation for exercising his

First Amendment rights. Respondent moved to

dismiss for failure to state a claim and lack of subject

matter jurisdiction. The district court (1) dismissed

Harkness’s RFRA claim and his 07Board challenge

which the SSB mooted but (2) denied Respondent’s

other claims. Harkness v. Secretary, 2:13-cv-3003,

ECF 28 (W.D. Tenn 2/24/15) (“Harkness-MTD”).

Harkness-MTD rejected the Secretary’s

argument Harkness’s retaliation claim lacked facts

sufficient to state a claim, finding it met the Sixth

Circuit’s standard for an unconstitutional retaliation

claim. Harkness-MTD Extract at Pet.App.66b (“The

Court disagrees” with Respondent’s argument)-67b.

Both parties then filed summary judgment

motions. Respondent argued Orloff v. Willoughby,

345 U.S. 83, 92-93 (1953) denied the court

jurisdiction over Harkness’s retaliation claim

because it involved a personnel decision. Harkness

argued Orloff did not apply to constitutional claims.

The district court granted Respondent’s

motion based on the administrative record,

Pet.App.6b, 7b, 14b, 19b, 29b. It held: (1) Orloff

barred Harkness’s retaliation claim because the

retaliation was restrictions or denial of duty

assignments (diminishing his competitiveness) to

which he had been selected, Pet.App.10b-12b; (2)

denied Harkness’s discovery motion, Pet.App.14b28b; (3) found Harkness’s statistics were old and

failed to consider missing factors the court thought

important, Pet.App.51b-54b; (4) recognized the

board members’ oath did not effectively guarantee

religious neutrality, but held Respondent’s blackball

selection procedures presented no Establishment

violations, Pet.App.42b; and (5) Respondent’s refusal

to grant SSB’s was appropriate, Pet.App.34b-61b.

Harkness’s appeal argued the decision violated

Sixth Circuit and Supreme Court precedent.

Respondent did not cross-appeal the validity of

Harkness’s retaliation claim. Harkness-II affirmed

the district court’s findings.

The Sixth Circuit first addressed Harkness’s

challenge to the lower court’s holding Orloff made his

retaliation claim nonjusticiable. Recognizing that

“some military personnel decisions are indeed

reviewable”, Pet.App.8a, the Circuit suggested duty

assignments were not but dismissed Harkness’s

retaliation claim under Mendez v. Seaman, 453 F.2d

197 (5th Cir. 1971)’s justiciability test. The Circuit

found his retaliation claim lacked specific details,

Pet.App.9a-11a; courts should not review military

“duty assignments”, Pet.App.12a; Harkness’s injury

was minimal with no available remedy, Pet.App.11a;

and therefore non-justiciable. Id.

The Circuit found Respondent had no

“statutory authority to convene a second SSB to

review the actions of the 2012 SSB because §

14502(b) authorized SSBs only for challenges to

“mandatory promotion boards, not SSBs.

Pet.App.14a. Harkness’s failure to present

Respondent his claim CAPT Wildhack’s “duties

related to officer community management” precluded

board membership rather than alleging he was a

“detailer” failed exhaustion of remedies, denying the

court jurisdiction. Pet.App.15a.

The Circuit rejected strict scrutiny of the

challenged practices denying application of County of

Allegheny, 492 U.S. at 608-09 (1979) (“We have

expressly required ‘strict scrutiny’ of practices

suggesting ‘a denominational preference’”

(emphasis added) (citation omitted)) as inconsistent

with this Court’s and its own precedent. Pet.App.17a.

It applied Lemon v. Kurtzman’s three-part test, 403

U.S. 602, 612-13 (1971), because the promotion

statute did not distinguish between denominations

on its face. Pet.App.17a-18a. The Circuit concluded

the “reasonable observer reviewing these

procedures–with knowledge of their text, history and

implementation–would not ... infer governmental

endorsement of religion.” Pet.App.20a.

The Circuit then rejected Harkness’s statistics

showing the procedures produced denominational

preferences. It found them “too old” and speculated

the reduced chaplain board memberships (after the

chaplain litigation began) mitigated any

denominational preferences. Pet.App.21a-22a. The

Circuit held “even if Harkness’s data was

statistically significant, that means only that the

disparity in promotion decisions was not due to

chance”, and Harkness “failed to control for other

confounding factors–promotion ratings, education or

leadership skills.” Pet.App.22a (citation omitted).

The Circuit found Harkness had not presented

Respondent other evidence of discrimination.

Pet.App.23a.

The Circuit rejected Larkin and Grumet as

controlling authority because Respondent

“articulated secular, neutral standards ... in

evaluating candidates for promotion”; cited the oath

and regulations; and found effective measures

ensuring religious neutrality because “the two

chaplains on the board share decision-making

authority with five others” and results were subject

to further review. Pet.App.25a (citations omitted).

That chaplains were denominational representatives

was not a problem to the Circuit because chaplains

served on boards as officers, “evaluating the secular

qualifications of their fellow officers”, not

denominational-representatives. Pet.App.26a.

Without a constitutional infirmity,

Respondent’s denial of Harkness’s 2013 SSB was

lawful, Pet.App.26a, and discovery was not

appropriate. Pet.App.28a-29a.

REASONS FOR GRANTING THE PETITION

Dismissing Harkness’s Retaliation Claim

Violated His First Amendment and Due

Process Rights

The Sixth Circuit’s holding the Constitution

did not protect Harkness’s exercise of his First

Amendment from Respondent’s retaliation,

Pet.App.9a-12a, is grave constitutional error

affecting all military personnel. In effect, the Sixth

Circuit has denied or excessively chilled the right for

every military person to lawfully petition for redress

of wrongs and object to unlawful violations of their

constitutional rights. This deprivation comes without

any notice, opportunity to object, or presentation of a

compelling government purpose which courts can

evaluate against the interests of those affected by

this deprivation.

The ordinary mechanism that we use

for balancing such serious competing

interests, and for determining the

procedures that are necessary to ensure

that a citizen is not “deprived of life,

liberty, or property, without due process

of law,” U.S. Const., Amdt. 5, is the test

that we articulated in Mathews v.

Eldridge, 424 U.S. 319 (1976)

Hamdi v. Rumsfeld, 542 U.S. 507, 528–29 (2004).

Under Matthews, the government must present its

lawful reasons for depriving or limiting the right

involved. Id. at 529. Respondent cannot meet this

test: retaliation cannot be a legitimate government

objective or concern, particularly given it is unlawful.

Respondent has not identified where Naval

personnel are told they may be retaliated against

through the use of duty assignments if they blow the

whistle on corruption or seek to challenge policies

that violate the Constitution or law. The Circuit’s

holding is an egregious and extraordinary

deprivation of the rights of service personnel for no

apparent reason.

Harkness appealed the district court’s holding

Orloff v. Willoughby, 345 U.S. 83 (1953) barred

Harkness’s retaliation claim. The Circuit did not

reverse the district court’s holding Orloff barred

judicial review of unconstitutional duty assignments.

It found Harkness’s lack of detail failed Mendez’s test

for justiciability, Pet.App.8a-11a, violating the Cross-

Appeal Rule and Principal as shown below.

This holding, Respondent may violate the

Constitution and retaliate against Harkness for

exercising his First Amendment rights, is outrageous

and unprecedented. The Constitution protects all

citizens from retaliation for exercising their right to

petition and challenge constitutional violations. Ex

Parte Milligan, 71 U.S. (4 Wall.) at 120. The Circuit

created an unconstitutional exception for military

personnel, despite laws prohibiting retaliation,

denying Harkness’s right to protest.

“This Court has never held ... military

personnel are barred from all redress in civilian

courts for constitutional wrongs suffered in the

course of military service.” Chappell v. Wallace, 462

U.S. 296, 304 (1983). “The military has not been

exempted from constitutional provisions that protect

the rights of individuals.” Emory v. Secretary of

Navy, 819 F.2d 291, 294 (D.C. Cir.1987) (courts

review allegations of “promotion and selection

process” constitutional violations). Nothing in

Harkness’s commissioning process informed him

taking his oath forfeited the Constitution’s

protections; constitutional rights must be knowingly

waived. Allowing this and the district court’s decision

to remain as precedent is an insult to every military

person, denying basic Constitutional rights to all

who serve in the future.

Orloff Does Not Bar Jurisdiction

over Constitutional Claims

Orloff granted certiorari to review lower court

decisions allowing the Army to assign a doctor nondoctor duties, i.e., lab technician, although

conscripted under the Doctor Draft Act. Following

certiorari, the Army admitted the lower courts erred

and petitioner must be assigned doctor duties, and

did so. Orloff, 347 U.S. at 88-89. Petitioner’s refusal

to complete commissioning requirements, id. At 89,

required modification of his doctor duties reflecting

his enlisted status, id. at 93. Petitioner argued he

should be allowed to function as an “officer” doctor or

be discharged.

His assignment to doctor duties removed the

statutory question, id. at 89, 93. Orloff declined to

evaluate his enlisted doctor duty restrictions:

“Orderly government requires that the judiciary be []

scrupulous not to interfere with legitimate Army

matters,” id. at 97 (emphasis added). Orloff’s use of

“legitimate” is critical, marking the dividing line

between military business and judicial duty. Orloff

addressed no constitutional issues or illegal acts.

Courts have a duty to intervene when personnel

decisions violate the Constitution, statutes, or

regulations. Unconstitutional retaliation is not a

“legitimate matter.” The Circuit’s decision mirrors

the Army’s illegal position before certiorari.

Especially troubling is the Circuit’s agreement

with the Navy’s argument it is not bound to obey the

Constitution, laws and its own regulations

prohibiting illegal retaliation.

This Decision Violates the CrossAppeal Rule

Arguing Orloff did not apply, Harkness cited

Mendez as a well-known example of circuit decisions

rejecting Orloff’s application to constitutional claims.

See Pet.App.10a (citing other circuits adopting the

Mendez test).

Harkness informed the Circuit the district

court found Harkness stated a valid constitutional

claim. See Pet.App.65b-67b. Respondent neither

appealed that rejection nor addressed Mendez in his

Circuit opposition. Nonetheless, the Circuit adopted

Respondent’s unappealed argument, violating the

“Cross-Appeal Rule.” Greenlaw, 554 U.S. at 243

(appellee cannot win on an issue it lost and did not

cross-appeal). Because neither party’s briefing

addressed the validity of Harkness’s retaliation

claim, the Circuit also violated the “principle of party

presentation.” Id.

More troubling, Respondent raised Orloff’ in a

Rule 12(b)(1) jurisdiction motion. The Circuit had to

accept Harkness’s well-pleaded allegations as true,

construing “the allegations of the complaint ...

favorably to the pleader”, Schuler v. Rhodes, 416

U.S. 232, 236 (1994). The Circuit adopted the

argument Swierkiewicz v. Sorema N.A., 534 U.S.

506, 511 (2002) rejected: “we hold an employment

discrimination plaintiff need not plead a prima facie

case of discrimination[.]”

The Circuit arbitrarily denied Harkness his

right to prove a claim the district court found valid,

violating the First and Fifth Amendments. This

denied Harkness the right the Constitution gives all

other Federal Whistleblowers. This rejection of wellrecognized precedent to dismiss a chaplain’s

complaint, erecting a dangerous precedent,

emphasizes the need for this Court’s review.

II.

Dismissing Harkness’s Statistics as “Too

Old” and Missing Speculative Factors

Raises Constitutional Issues

Key to understanding the magnitude of the

Circuit’s prejudicial mistakes is its unlawful

dismissal of Harkness’s statistical analysis, thereby

sidestepping the constitutional issues and avoiding

carefully examining the challenged practices. Absent

statistics, the Circuit found no denominational

preferences. This dangerous precedent requires

reversal.

The Circuit’s rejection of Harkness’s statistics

as “too old” and missing “confounding factors”,

contrary to its own and this Court’s precedent, is

inexplicable. No evidence supports the Circuit’s

assertion reducing chaplain board members affected

the challenged procedures, Pet.App.21a-22a, making

it prejudicial speculation. The issue is the blackball

voting machine and the Chief’s or Deputy’s influence

on chaplain board members. Respondent neither

argued nor presented evidence the challenged

procedures changed. Harkness’s statistics showed

continued non-neutrality in results. Pet.App.21g-24g.

Respondent’s Prom.Brief describes the procedures.

The similarity of the facts and context of this

case with Bazemore v. Friday, 478 U.S. 385 (1986),

that led this Court to grant certiorari and reverse is

striking, as is the difference in outcomes. Phillips v.

Cohen, 400 F.3d 388, 400 (6th Cir. 2005), was the

Circuit’s application of Bazemore prior to this case.

Precedent Holds “Old” Statistics

Can Be Relevant in Discrimination

Cases

This Court’s precedent directly addresses the

relevance and value of “old” statistics, clearly

establishing prior acts of discrimination are relevant

and therefore admissible when similar acts are

currently at issue. “Proof that an employer engaged

in racial discrimination prior to the effective date of

Title VII might . . . support the inference that such

discrimination continued, particularly where

relevant aspects of the decision making process had

undergone little change.” Hazelwood School District

v. U.S., 433 U.S. 299, 309–310, n. 15 (1977) (citing

Fed.R.Evid. 406 and other authorities). Bazemore,

478 U.S. at 401-02, reemphasized Hazelwood’s

principle: “As we made clear in Hazelwood”, then

repeating the above quote. Accord United Air Lines,

Inc. v. Evans, 431 U.S. 553, 558 (1977) (prior acts

“may constitute relevant background evidence in a

proceeding in which the status of a current practice

is at issue”).

Dismissing Statistics Based on

Speculative Factors Respondent

Has Not Legitimately Raised

Violates the Principle and Rule

Bazemore reversed a Fourth Circuit Order

similar to the decision here, dismissing plaintiffs’

statistics for failing to account for factors neither

party’s expert used, but the Fourth Circuit felt

relevant. 478 U.S. at 398-99. Bazemore held “a

regression analysis that includes less than ‘all

measurable variables’ may serve to prove a plaintiff's

case” provided the analysis addresses the major

factors. 478 U.S. at 400. Here, the major factor is

denomination, which Harkness’s statistics address. A

party claiming an opponent’s statistics are missing

factors should present evidence said factors make a

difference. See Palmer v. Shultz, 815 F.2d 84, 101

(D.C. Cir. 1987) (Bazemore rejects speculation and

requires evidence an alleged missing factor makes a

real difference), n.13 (“ Mere conjectures and

assertions usually will not suffice”).

Until this case, Sixth Circuit precedent

followed Bazemore scrupulously. Phillips v. Cohen,

400 F.3d 388 (6th Cir. 2005) addressed AfricanAmerican Department of Defense Finance and

Accounting Service employees’ claims of racially

discriminatory promotion procedures, 400 F.3d at

390. The lower court held the plaintiffs’ promotion

statistics failed “to consider merit factors”, found the

defendant’s statistics more reliable, ignored other

factors in the record and dismissed plaintiffs’

disparate impact case. Id. at 395.

Phillips reversed the lower court’s imposition

of speculative factors. "In cases involving promotion

policies, the relevant inquiry is comparing the

number of protected group members benefitting from

promotions with the number seeking them; this

figure is then contrasted with the corresponding

ratio for the non-protected group." Id. at 399 (citation

omitted). Phillips noted the Second and Ninth

Circuits “conclude that the proper inquiry in

promotion cases is ‘the composition of candidates

seeking promotion and the composition of those

actually promoted,’ without reference to the

candidates' qualifications.” Id. at 400 (citing Stout v.

Potter, 276 F.3d 1118, 1123 (9th Cir. 2002); Waisome

v. Port Auth., 948 F.2d 1370, 1372 (2d Cir. 1991)).

Harkness’s statistics analyzed different

denominational groups’ differing promotion rates as

Phillips and Bazemore require.

The Sixth Circuit’s dismissal of Harkness’s

statistics for omitting “confounding factors” violates

the Party Presentation Rule and raises serious First

and Fifth Amendment issues. The Sixth Circuit has

no expertise in military promotions and personnel

systems or the unique statutory and regulatory

factors determining chaplain promotion eligibility.

Respondent, the operator of the promotion system in

question, carefully and purposely avoided alleging

Harkness’s statistics missed important variables

because Respondent, opposing Harkness, cited his

own expert, Dr. Siskin, who focused on chaplain

promotion rates, not using the Sixth Circuit’s factors.

Respondent argued the lower courts should

accept without reservation In re Navy Chaplaincy’s

finding those plaintiffs’ statistics missed “potential

confounding factors, such as promotion ratings,

education, or time in service [TIS]” ,738 F.3d 425,

440 (D.C. Cir. 2013), cert denied, 135 S.Ct. 86 (2014).

Harkness argued Chaplaincy violated Palmer’s

precedent, Respondent had not raised those factors

in Chaplaincy, and they did not change the outcome,

e.g., Title 10 determines “time in grade”, not TIS.

The Sixth Circuit accepted without question

Chaplaincy’s factors but deleted TIS. It accepted a

finding resting on a violation of the Principle,

denying Harkness the right to show the alleged

missing factors were either already considered in the

military’s promotion system or not relevant.

The Circuit’s only basis for usurping

Respondent’s burden to object to the opposing party’s

statistics, see Watson v. Fort Worth Bank & Tr., 487

U.S. 977, 996 (1988) (defendant claiming deficiencies

in plaintiff’s data “is free to adduce countervailing

evidence of his own”), is uninformed speculation on

the relevance to military promotions of factors it

assumed were missing.

The Circuit’s term “promotion ratings”, 22a, is

neither defined nor measurable. The Circuit’s

assumption “promotion ratings” can be gleaned from

candidates’ records demonstrates the Circuit’s

military promotion system ignorance. Chaplain

performance reports don’t get a grade. Title 10

determines eligibility. Individual records are

protected by the Privacy Act. The only public

information Respondent’s promotion precepts reveal

is those considered and promoted. Candidates’

denominations are not part of that disclosure but

were gathered by examining CHC chaplain rosters.

It is the board member’s responsibility to examine a

candidate’s record and evaluate such things as

“leadership skills” based on the comments of others.

For chaplains, board members evaluate ministry, an

undefined religious term without objective

standards.

Harkness objects to promotion votes based on

an individual briefing a candidate’s record rather

than each member reviewing each record. The FY 9798 NIG demonstrates Respondent’s practice makes

one’s career dependent on a board member’s briefing

skills and ability to highlight the best portions of a

chaplain’s record. Promotion depends on a briefer’s

ability, not the candidate’s record. This procedure

provides neither equal opportunity for promotion nor

equal protection of the law. Some candidates do not

get good briefers. No other Armed Service uses this

procedure.

Education has two dimensions, level, e.g.,

postgraduate, and content or type. Chaplains must

meet specific postgraduate education requirements

before commissioning. Neither Respondent nor a

board can evaluate the content or quality zof

chaplains’ religious education without

unconstitutionally evaluating theological issues.

Respondent requires every candidate to be

“fully qualified” before being evaluated by a board. A

board finding a candidate “not qualified” must

recommend separation. Promotions are based on

board members’ subjective evaluation of a

candidate’s record based on “briefed” performance

reports.

The truly objective observer would question

why the Circuit, with no knowledge of the military

promotion system, abandoned Phillips and

speculated on missing confounding factors

Respondent did not challenge and show their

relevance to the outcome as Phillips requires, and

became an adversary, not a detached, objective

evaluator of competing versions of evidence under

the Circuit’s law, e.g., Phillips.

This Court should reverse this unwarranted

breach of judicial neutrality, now precedent,

clarifying Bazemore requires an objecting party show

through analysis alleged missing factors actually

make a difference. It is the parties’ responsibility to

frame the issues and prove their statistics.

This case illustrates the need for a uniform

judicial standard. A court’s treatment of a plaintiff’s

statistics should not depend on where a case is filed.

III.

The Sixth Circuit Did Not Properly

Review Harkness’s Establishment and

Due Process Claims

The heart of Harkness’s constitutional

challenges is Respondent’s promotion procedures

granting a denominational-representative on the

promotion board unbridled power to secretly veto

another chaplain’s promotion, torpedoing his/her

career. If Grumet and Larkin are still valid

precedent, this is an unconstitutional fusion of

religious and civic power through the delegation of

unbridled civic power to persons defined by their

religious identity.

Chaplain promotion board IG investigations

show the Circuit is wrong and Respondent has no

effective guarantees religious factors do not influence

a denominational-representative’s use of that power

through Respondent’s challenged procedures: his

blackball voting machine, voting on a chaplain’s

record as briefed by a chaplain board member and

the Chief’s influence as Board President.

Respondent’s Prom.Brief acknowledges the

blackball procedures; Respondent has never denied

the fact one board member can secretly “zero out” a

chaplain candidate with no review or accountability,

nor can he. The unchallenged NIG results,

Pet.App.1f-11f, demonstrate Respondent’s “blackball”

epitomizes the unbridled governmental power the

Rule forbids. It unconstitutionally places unbridled

power in the hands of two denominationalrepresentatives with no accountability. A real

objective observer would conclude the Circuit ignored

the unique context of this case, the Rule, the

Principle and controlling precedent, to avoid

addressing Harkness’s challenges despite

acknowledging them, see Pet.App.6a.

Harkness’s Statistics Demonstrate

the Procedures Produced

Denominational Preferences for 38

Years

Dr. Leuba’s Preferences clearly establishes the

prejudicial impact of the Chiefs’ and board members’

denominations in CHC promotions. “More than 80%

of the uncertainty in whether one will be promoted or

not can be explained by the correlation (similarity)

between the religious beliefs among the Promotion

Board members and the candidate’s denomination!”

Pet.App.5g, ¶ 2.19.11.2.

Promotion rates for CDR and CAPT

candidates who shared the Chief’s denomination

were statistically significantly higher than for

candidates not sharing a Chief’s denomination. For

CDR, 83.33 % (match) versus 73.17 (no match); for

CAPT, 78.57 (match) versus 50.45 (no match).

Pet.App.8g-9g, Table. 9, ¶¶ 2.20.5 and 2.20.5.1.

Harkness sought promotion to CAPT. The

absolute promotion rate difference was 28.12%

(78.57-50.45); clearly not “paltry”, Pet.App.51b, but a

56% relative advantage (28.12/50.45) in the

likelihood of promotion to Capt if a candidate

represents the Chief’s denomination or another

chaplain member’s denomination. That is neither

denominational neutrality nor equal opportunity.

The Circuit ignored Dr. Leuba’s 38 Years of

Denominationalism, Pet.App.17g-25g (extracts),

demonstrating the Chiefs’ impact on promotions from

1974 to 2013 in terms of four denominationally

different Chiefs related data-sets: from highest to

lowest, RC; CoC; SB; and Nevers. The 38 year

promotion-rate by rank differences of the four

groupings are statistically significantly different.

Pet.App.20g. Both studies show Respondent’s

procedures are neither denominationally neutral nor

provide equal opportunity.

The Circuit’s rejection of statistics and

arbitrary un-enforcement of its own and this Court’s

precedent permits Respondent to avoid liability for

obvious denominational neutrality violations,

denying justice to Harkness and others whom this

precedent may prejudice.

The Circuit’s Rejection of

Statistical Significance as a

Meaningful Measure of Nonneutrality Is a Corrosive Precedent

Harkness’s statistics show over a 20 year

period candidates who share a denomination with a

Chief have higher promotion rates than those whose

denomination do not match a Chief, 10% at

Commander (CDR) and 28% at Captain. III.A supra.

The Circuit’s holding that the objective observer

would not “perceive endorsement” from these

differences, Pet.App.21a, defies reason. An objective

observer would know (a) the importance of statistics

is not the numerical difference in promotion rates per

se but whether the differences in promotion rates are

explainable by chance, i.e., statistically significant,

which (b) raises an inference of discrimination under

Title VII. Castaneda v. Partida, 430 U.S. 482, 496

n.17 (1977). The inference of discrimination shifts

the burden to Respondent to provide viable reasons

for the outcome differences; see Palmer, 815 F.2d at

92 (“statistical evidence meeting ‘the .05 level of

significance . . . [is] certainly sufficient to support an

inference of discrimination’").

If the categories were white and black

managers, the objective observer would know the

results were not neutral, inferring race played a

factor. True neutrality would be zero difference. The

Circuit ignored Denominationalism’s evidence of

consistent statistically significant higher promotion

rates for 38 years (1974-2012) for (a) denominations

that had Chiefs compared with those who did not,

and (b) differences within the Chief category. These

results, see Pet.App.21g-24g (2001-2011), show the

procedures are not denominationally neutral. The

Circuit’s decision defies logic, necessitating this

Court’s reversal.

This Court’s Title VII jurisprudence provides a

useful reference for examining when a government

awards procedure touching religion is not neutral,

recognizing minor variations occur in any promotion

system for valid non-prejudicial reasons. While using

terms like “significant differences in rates”,

precedent makes clear the question is whether the

differences are explainable by chance. The Circuit

rejected that approach here, Pet.App.21a,

establishing a dangerous new precedent, a cancer

that attacks the Establishment Clause’s neutrality

mandate.

The objective criteria for non-neutrality in

such a program is a measure of first impression. The

Sixth Circuit’s holding makes obvious preferences

falling outside the realm of chance in a promotion

procedure neutral.

The County of Allegheny, 492 U.S. at 608-09,

language the Circuit rejected provides a standard

consistent with Title VII and other antidiscrimination laws: “we have expressly required

‘strict scrutiny’ of practices suggesting ‘a

denominational preference’” (emphasis added)

(citation omitted). 38 years of distinct promotion

preferences are most likely not due to chance. Given

the uncontested evidence of Respondent’s blackball

procedures and verified discrimination, see

Pet.App.1f-10f, statistical significance should be the

standard in this case.

Limiting Review of Harkness’s

Establishment Claims Conflicts

with the Judiciary’s Duties to

Carefully Examine Establishment

Claims

Limiting a court’s review of Establishment

claims to the administrative record is incompatible

with the judiciary’s constitutional duty to enforce the

Constitution, City of Boerne v. Flores, 521 U.S. 507,

524 (1997) (“The power to interpret the Constitution

in any case or controversy remains in the Judiciary”),

and with Nyquist’s and Gillette’s specific commands

to carefully examine challenged practices for subtle

as well as overt violations of religious neutrality.

The lower courts’ review of Harkness’s claims

on the administrative record in this case’s unique

context demonstrates that conflict, which.this Court

should resolve.

The Judiciary’s duty is to

interpret and enforce the

Constitution

Our government is one of limited,

delegated powers. The Constitution grants no

governmental branch or agency, including the Navy,

power to violate the Constitution, statutes, its own

regulations, or to cover up misconduct. “There are no

de minimis violations of the Constitution--no

constitutional harms so slight that the courts are

obliged to ignore them.” Elk Grove Unified Sch. Dist.

v. Newdow, 542 U.S. 1, 36-37 (2004) (O’Connor, J.,

concurring). “[T]he particular phraseology of the

constitution of the United States confirms and

strengthens the principle, supposed to be essential to

all written constitutions, that a law [or practice]

repugnant to the Constitution is void; and that

courts, as well as other departments, are bound by

that instrument.” Marbury v. Madison, 5 U.S. 137,

180 (1803).

The Constitution’s Article II grants

Respondent the duty and power to enforce the law,

not violate it. The duty and power to enforce the law

inherently forbids hiding or encouraging misconduct.

Courts have a duty “to be watchful for the

constitutional rights of the citizen, and against any

stealthy encroachments thereon.” Coolidge v. New

Hampshire, 403 U.S. 443, 454 (1971) (citation

omitted). This Court’s oft stated duty of courts of

justice is “to declare all acts contrary to the manifest

tenor of the constitution void. Without this, all the

reservations of particular rights or privileges would

amount to nothing.” U.S. v. Brown, 381 U.S. 437, 462

(1965) (citation omitted). The judiciary has no power

to allow coordinate branches to violate the

Constitution or hide government misconduct. “ It is

the duty of the federal courts to inquire whether an

action of a military agency conforms to the law, or is

instead arbitrary, capricious, or contrary to [law].”

Dilley v. Alexander, 603 F.2d 914, 920 (D.C. Cir.

1979).

Establishment claims require

detailed judicial examination

Establishment claims require “careful

examination of any [practice] challenged on

establishment grounds with a view to ascertaining

whether it furthers any of the evils against which

that Clause protects.” Nyquist, 413 U.S. at 794.

Church of Lukumi Babalu Aye v. City of Hialeah, 508

U.S. 520, 542 (1993) and Gillette, 401 U.S. at 452,

require courts go beyond a practice’s facial neutrality

to carefully examine subtle departures from

denominational neutrality.

Courts cannot ignore

identified investigations

showing Establishment

violations

The Circuit rejected Harkness’s citation

to the promotion board IG investigations claiming

“this evidence was not presented to the Secretary,

nor is it part of the administrative record.”

Pet.App.23a. This is judicial error. Harkness’s

requests for an SSB specifically mentions

Respondent’s investigations of chaplain promotion

boards. Pet.App.4e-5e (“The Navy’s chaplain-board

investigations show the influence of board presidents

(CHC Chief or his Deputy) and the impact of slight,

negative inferences....”). Respondent cannot deny IGs

investigated four specific chaplain promotion boards;

he approved lifting § 613a’s proceedings protection

for the investigations. Respondent was aware the FY

09 CAPT board NIG found RADM Baker’s innocuous

comments prejudiced a non-liturgical chaplain.

Respondent’s willful blindness to the reality of those

investigations neither negates the fact Harkness

made specific reference to them and their importance

to his claim, nor Respondent’s duty to enforce the

law, ensuring his procedures preclude

denominational preferences and Establishment

Clause violations, claims that mirrored ongoing

litigation. It was prejudicial legal error for the lower

courts to ignore that evidence.

The Circuit implies Harkness should have

presented Respondent every piece of evidence

already produced in the Chaplaincy Litigation. If

Respondent had not recognized the validity of the

Chaplaincy Plaintiffs’ evidence, it is absurd to think

his response to Harkness would have been any

different the second time. The statute requires

Harkness make his claims to Respondent.

Respondent was on notice of Harkness’s claim with

its reference to specific material Respondent had

already ignored or rejected.

The duty to thoroughly

review establishment claims

overrides administrative

record review limitations

This case illustrates the conflict in

reviewing Establishment Clause claims on the

Administrative Record. 10 U.S.C. § 14502 required

Harkness notice Respondent of his claims before

seeking judicial relief. Harkness-I, 727 F.3d at 47073. Title 10 does not define “claim.” Fed.R.Civ.P.

8(a)(2) defines “Claim for Relief” criteria, “a short

and plain statement of the claim showing that the

pleader is entitled to relief.” A § 14502 “claim”

seeking judicial relief must meet Rule 8's criteria.

Harkness’s SSB request presented Respondent

Harkness’s establishment and board composition

claims, referred to Respondent’s investigations,

Harkness’s statistics and evidence in his other

litigation. Pet.App.1e-10e. Respondent denied the

claims. Respondent’s Prom.Brief documents the

procedures Harkness challenges. Respondent’s

investigations proving Harkness’s claim the

blackball procedures give a chaplain board member

unbridled power to torpedo a candidate’s career are

in Respondent’s control. Respondent has not denied

those investigations’ validity given his Executive

agent’s responsibilities to manage the Navy and

enforce the law, but he ignored them here in

rejecting Harkness’s claim. The lower courts

approval of Respondent’s willful blindness is

inconsistent with their duty to carefully examine

Respondent’s challenged practices for Establishment

violations evident in the IG investigations and

Harkness’s statistics, and require Respondent fulfill

his constitutional duties. That approval establishes

dangerous precedent undermining the Establishment

Clause’s neutrality mandate while rewarding a

major government agency for operating outside the

law and ignoring its own evidence its procedures are

unconstitutional.

In normal litigation, Harkness’s complaint

would present the court his Rule 8 claim challenging

the procedures’ unconstitutionality. Respondent

would deny it, and the parties would initiate

discovery. Forsyth Cty., Ga. v. Nationalist Movement,

505 U.S. 123 (1992), a facial challenge to a parade

permit scheme, illustrates the process. The plaintiff

challenged the requirement to pay for a permit

whose cost an administrator determined based on his

estimate for county services the type of parade

required. No rules restricted the administrator’s

discretion. Discovery examined the policy’s past

implementation and statutory, regulatory or policy

constraints limiting the administrator’s discretion.

The Court found the scheme, similar to Respondent’s

blackball procedures, unconstitutional on its face.

The administrator is not required to

rely on any objective factors. He need

not provide any explanation for his

decision, and that decision is

unreviewable. Nothing in the law or its

application prevents the official from

encouraging some views and

discouraging others through the

arbitrary application of fees. The First

Amendment prohibits the vesting of

such unbridled discretion in a

government official.

Id. at 132–33. Review on the administrative record

improperly shortcuts this process essential to expose

the facts necessary to correct subtle departures from

neutrality.

Respondent’s own investigations show his

denial the challenged procedures allow prejudice is

unsupported and made in bad faith, i.e., ignoring

evidence in Respondent’s possession validating

Harkness’s claim. This rewards Respondent for

ignoring his specifically cited investigations and

abandoning his duty to enforce the law.

The Circuit’s limitation to the administrative

process prevents a petitioner’s challenge to agency

refusal to recognize a controlling issue of law absent

a series of potentially never-ending exchanges.

Harkness claimed the challenged blackball

procedures unconstitutionally delegated unbridled

civic authority to persons identified by their religious

character without the appropriate constitutional

safeguards, a question of law. Restriction to the

administrative record precluded Harkness from

addressing Respondent’s denial and deceitful

responses, which Harkness cannot predict or control.

Nothing in § 14502 indicates Harkness has to

file a “Brandeis brief” supporting his “claim”,

particularly when he cannot predict Respondent’s

basis for denying the challenged procedures delegate

unbridled power to denominational-representatives.

Respondent’s investigations, which Harkness cited,

show blackballing occurs, fusing unbridled civic and

religious power. Absent this Court’s intervention,

Respondent will continue to flaunt his Establishment

violations, relying on this precedent.

The question here is why the lower courts did

not insist Respondent acknowledge IG investigations

showed his arguments and representations were

false. Rewarding government agency for deceit to the

court and violating its oath to uphold the

Constitution is a dangerous precedent, inviting

anarchy.

Harkness asks this Court to declare the

judiciary’s duty to carefully examine challenged

practices for overt and subtle religious neutrality

violations overrides administrative record review

limitations when Establishment Claims are at issue.

Respondent’s Chaplain Blackball

Promotion Procedures Fuse Civic

and Religious Power

Harkness argued the delegation of’

discretionary civic authority to chaplains, hired as

denominational-representatives unconstitutionally

fused civic and religious power as a matter of law

under Grumet and Larkin. Respondent’s

investigations show that delegation of power is

unbridled, allowing a board member to torpedo a

chaplain’s career with no accountability, as RADM

Black’s and CDR Washburn’s NIG testimony

demonstrated. Pet.App.1f-10f. The Circuit

acknowledged chaplains were denominationalrepresentatives but ignored the IG and other

evidence the blackball procedures allowed

denominational considerations to infect promotions.

Pet.App.25a.

The Circuit’s holding a chaplain can abrogate

his identity as a denominational-representative,

morphing into a secular officer without religious

bias, Pet.App.26a (serve on promotion boards as

Navy officers), and the chaplains “share decision

making authority with five others”, Pet.App.25a, is

without support and contrary to the unchallenged IG

evidence. Likewise, it’s holding that regulations,

Respondent’s guidance and post board review provide

restraint on the blackball procedure, id., has no

record support; it is contradicted by statistics,

Respondent’s investigations, and other evidence

available to the courts.

The Circuit decision’s absurdity is

demonstrated by two significant, unchallenged facts.

Respondent restricts chaplains from every exercise of

the Sovereign’s power except vetoing promotions and

secretly destroying other chaplains’ career. Board

members decide what denominationalrepresentatives best meet the the Navy’s religious

needs. If Respondent recognizes chaplains cannot

separate their officer identity from their

denominational-representative identity in the

normal, everyday, secular Navy duties, e.g., “stand

watches”, Pet.App.1d, how can that happen when

“evaluating” ministry, a religious subject evaluated

from a chaplain’s denominational perspective?

Grumet and Larkin found the delegation of

civic authority to persons or groups defined by their

religious identity was an improper fusion of civic and

religious power and the joint exercise of that power

promoted religion. Larkin’s circuit court analysis of

the churches’ substantial benefit the right to veto a

liquor license conferred, not unlike the blackball’s

absolute veto power over a chaplain’s career, shows

the Circuit’s error.

The extent of the benefit at issue ... is

substantial. This benefit is the grant of

a veto power over liquor sales in

roughly one million square feet .... The

statute simply requires that the church

"object[]". *** [W]e note that the law

vests every church with a power to give

or deny to an establishment a privilege,

the absence of which may threaten the

viability of the enterprise and the

presence of which may substantially

enhance its profitability.

Grendel's Den, Inc. v. Goodwin, 662 F.2d 102, 105

(1st Cir. 1981), aff’d sub nom, Larkin v. Grendel’s

Den, Inc., 459 U.S. 116 (1982).

Respondent’s blackball vests a chaplain board

member with “a power to give or deny [a candidate] a

privilege, the absence of which may [destroy his/her

career] in the presence of which [will] substantially

enhance its profitability.” Harkness’s statistics show

the challenge procedures advanced specific

denominations for 38 years, not a "remote and

incidental effect advantageous to religious

institutions." Nyquist, 413 U.S. at 784 n. 30.

Barghout v. Bureau of Kosher Meat and Food

Control, 66 F.3d 1337 (4th Cir. 1995) and Commack

Self-Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415

(2d Cir. 2002), cert denied, 537 U.S. 1187 (2003)

found the fusion of government and religious

authority by placing rabbis on boards defining or

regulating kosher food was unconstitutional. It

produced a “combined exercise of civic and religious

authority”. Commack, 294 F.3d at 429. The rabbis

were board members because defining kosher food

was a religious activity like evaluating ministry

here. Chaplains are board members because they are

denominational-representatives, to deny the

delegation of power to them is incidental to their

identity is absurd.

The Procedures Are Facially

Unconstitutional

Harkness attacks three promotion board

procedures that delegate to a chaplain board member

unbridled power to anonymously veto a promotion

and torpedo the careers of subordinate

denominational-representatives. None of the

challenge procedures have accountability or are

necessary for the promotion of Naval officers and/or

chaplains. The blackball machine, Pet.App.1h, allows

a board member to anonymously “zero out”, i.e., veto,

a chaplain’s promotion with no accountability nor the

requirement to justify such an extreme action. The

reasonable observer would know the “0/NO” button

meant “NO” to promotion and “NO” to a career,

violating the Rule. The blackball machine delegates

to one board members the power to anonymously

veto every other vote. The Washburn NIG evidences

this reality. Pet.App.1f-11f.

Respondent’s blackball procedures convert the

board process into the equivalent of a licensing or

permit scheme requiring the approval of a

government official, i.e., board member. “[A] facial

challenge lies whenever a licensing law gives a

government official or agency substantial power to

discriminate based on the content or viewpoint of

speech by suppressing disfavored speech or disliked

speakers.” City of Lakewood v. Plain Dealer Pub. Co.,

486 U.S. 750, 756 (1988).

The Circuit’s conclusion the system was

neutral because Title 10 or respondent’s regulations

did not grant denominational preferences on their

face, Pet.App.20a, contradicts First Amendment

precedent, which evaluates the practice’s actual

power and effect, not just its words. Church of

Lukumi, Ibid., (“Facial neutrality is not

determinative”).

The only guarantee Respondent and the

Circuit cite as “effective guarantees” the procedures

are used solely for secular, neutral and

nonideological purposes” is the alleged neutrality of

the regulations, e.g., allegedly selecting board

members without regard for denomination, an

impossibility because each chaplain is defined by his

denomination, and the oath of objectivity each board

member takes. The IG investigations Respondent

and the Circuit ignored show these are not effective,

a fact the district court recognized. Pet.App.56b. All

IG investigations were initiated by victims, not board

personnel.

The lower courts ignored the facts chaplains

are denominational-representatives and promotion is

a reward for ministry, an undefined religious activity

determined by denominational perspective. RADM

Holderby testimony to the IG makes this point. He

admitted lobbying for a previously failed of selection

chaplain from his denomination based on a

“devotional” the candidate presented at a meeting.

RADM Holderby, in effect, admitted he was applying

criteria outside the record based on his

denominational appreciation of a fellow Lutheran, a

denominational preference. RADM Holderby also

admitted the fact he was a Rear Admiral and the

Chief could influence other board members.

This promotion system not fair nor protected

from having denominational influences determine

who is awarded promotion.

CONCLUSION

The Sixth Circuit’s decision conflicts with the

Constitution and this Courts controlling precedent. It

establishes a dangerous precedent for all military

personnel now and to come. The Court should grant

certiorari to address this extraordinary error.

Respectfully submitted,

Arthur A. Schulcz Sr.

Counsel of Record

Chaplains Counsel, PLLC

21043 Honeycreeper Pl.

Leesburg, VA 20175

(703) 645-4010

art@chaplainscounsel.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.