Appendix — Veitch v. Winter (No. 06-1187)

Supreme Court of the Hnited States

REV. D. PHILIP VEITCH,

Petitioner,

v.

THE HONORABLE GORDON R. ENGLAND,

SECRETARY OF THE NAVY, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

APPENDIX

Arthur A. Schulez, Sr.

Counsel of Record

2521 Drexel Street

Vienna, Virginia 22180

(703) 645-4010

Attorney for Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

Gnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2006 Decided November 28, 2006

No. 05-5196

D. PHILIP VEITCH, REV.,

APPELLANT

Vv.

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.

Before: SENTELLE and ROGERS, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

Concurring opinion for the Court 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.

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”).

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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

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 emails 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 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

nonjudicial 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.

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.

I

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

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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.

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.' 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.? 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.2d 29, 298 (5th Cir. 2000); Hodge v. Dalton, 107

F.3d 705, 707-12 (9th Cir.

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

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).

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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 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

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).

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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 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.‘ Id. Congress thus

carefully 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)

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 US.

738, 758 (1975) (“[Fjederal 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.

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(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 courtmartial 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 with an Article 86

violation (failure to appear at an appointed place of duty)

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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. Ciurk 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

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workplace discrimination is insufficient to make out a

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 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 coworkers.”) (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

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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).

il

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.s 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.

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.

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.

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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”' policy

violated his rights under the First and Fifth 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

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

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.

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.

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. § 1441la(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 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 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.

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

A-22

unreasonably in denying his request to withdraw his

resignation, I concur in affirming the grant of summary

judgment to the Navy.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

D. PHILIP VEITCH

Plaintiff,

Vv. Civil Action No. 00-2982

HON. GORDON R.

ENGLAND, SECRETARY

OF THE NAVY, et al.,

Defendants.

i i i i i i id

MEMORANDUM OPINION

INTRODUCTION

Plaintiff, Rev. D. Philip Veitch, (“Chaplain Veitch,”

“Rev. Veitch”), a former active-duty Navy chaplain, filed this

suit seeking his reinstatement and return to active duty

following his separation from the Navy on September 30,

2000. Plaintiff seeks equitable, declaratory, and injunctive

relief to protect his rights under the First and Fifth

Amendments, the Religious Freedom Restoration Act

(“RFRA”), other federal statutes, and the Navy’s regulations.

Rev. Veitch claims that the Navy persecuted him for his

religious faith and practices; censored his religious speech

and removed him from his Protestant congregation’s pulpit

for preaching historic Protestant doctrines; retaliated against

him for officially complaining about the deprivation of those

A-24

rights; and coerced him into resigning from the Navy.

Plaintiffs Complaint includes the following counts: (1) a

violation of the First Amendment's free exercise and

establishment clauses; (2) a violation of Plaintiff's First

Amendment Rights of free speech and illegal retaliation for

Plaintiff's filing of an equal opportunity complaint; (3) a

violation of equal protection under the Fifth Amendment,

alleging, inter alia, inconsistent application of the Uniform

Code of Military Justice and the Navy’s allegedly arbitrary

and capricious denial of Plaintiff's request to withdraw his

resignation; (4) illegal or constructive discharge due to

hostile work conditions, including the threat of a court-

martial that created a climate of duress and coercion; (5) a

violation of the RFRA; and (6) illegal retaliation in response

to Plaintiff's complaint of religious discrimination through

the Navy’s approved channels. Discovery has been

completed and this matter is before the court on cross-

motions for summary judgment pursuant to FED. R. CIV. P.

56. The parties have submitted memoranda and exhibits in

support of, and in opposition to, the pending motions,

including declarations and excerpts from various depositions

taken during discovery.

BACKGROUND FACTS AND PROCEDURAL HISTORY

Rev. Veitch is an ordained minister in the Reformed

Episcopal Church and was endorsed by his church to

' become a Navy chaplain. First Am. Compl. ¥ 7; Veitch Dep. at

346:22-347:1. From June 1997 until September 2000, Plaintiff

served as a commissioned officer with the rank of lieutenant

commander in the U.S. Navy Chaplain Corps. In December

1997 Plaintiff and his family were assigned to the Naval

Support Activity (NSA) in Naples, Italy (hereinafter

“Naples”). Plaintiff's wife testified that when the Veitch

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family arrived in Naples, Captain Ronald Buchmiller,

Chaplain Veitch’s new supervisor, told her that her husband

would “not be doing much” during his Naples tour of duty.

Sharon Veitch Decl., at 3, J 15. The parties disagree whether

such a statement was made, and, if so, whether it

demonstrated Captain Buchmiller’s alleged animus toward

Plaintiff or simply meant that Plaintiff would be given time

to settle in before receiving more work. Buchmiller Dep. at 64-

65.

Plaintiff argues that Captain Buchmiller’s

discriminatory animus originated even prior to his arrival in

Naples, when Captain Buchmiller and Plaintiff were both

stationed at Norfolk, Virginia. At that time, Plaintiff Veitch

considered filing a discrimination complaint against his then

supervisor through the Navy’s approved grievance channels.

According to Plaintiff, Captain Buchmiller warned him that

the Chaplain Corps would “end his military career” if he

exercised his right to file an equal opportunity complaint.

Veitch Dep. at 215:13-18. Captain Buchmiller denied that he

ever threatened Plaintiff, testifying that he advised Plaintiff

against filing a complaint because he was leaving Norfolk for

another assignment and it would “end up making [Rev.

Veitch] bitter.” Buchmiller Dep. at 20:7-22. The parties did not

make any claims with respect to the underlying facts of that

complaint, as Plaintiff refers to the events in Norfolk merely

to allege that Captain Buchmiller planned to ruin his Navy

career.

According to Plaintiff, Captain Buchmiller, a Roman

Catholic priest, Chaplain Steven Pike, an Episcopal chaplain,

and Captain John J. Coyne, the commanding officer of the

Naval Support Activity in Naples, conspired to create an

atmosphere of religious intolerance directed toward

A-26

conservative and evangelical Protestants in Naples,

including Plaintiff, in part by suggesting that he should

preach religious pluralism. First Am. Compl. J 14; Pl. Br. in

Supp. Of Opp’n and Cross-Mot. for Summ. J., at 45. In support,

Plaintiff cites to the testimony of several evangelical

Protestants who worked in the Naples chapel describing the

chapel climate created by Captain Buchmiller. See, e.g.,

Siegfriedt-Wilson Dep.; Bowling Decl.; Corean Decl.; DeMarco

Decl. There are statements in the record before the court that

certain evangelical Protestants in the Navy, including

chaplains and their spouses, felt “anti-evangelical hostility”

from Chaplain Pike and the chapel leadership under

Chaplain Buchmiller. See, e.g., Colon Decl., at { 9. Chaplain

Siegfriedt-Wilson testified that he left the Naples chapel

because he “could not do [his] job” because “the stress was

too great .. . [and they] were not wanted.” Siegfriedt-Wilson

Dep. at 63:2-21. Brendajo Bowling, who worked as a pianist

for Chaplain Pike in Naples, testified in her declaration that

“the atmosphere of fear and hostility toward evangelicals”

was “created, controlled and fed by Chaplains Buchmiller

and Pike.” Bowling Decl. J 5. Mary Colon, who was a

member of the evangelical congregation at the Navy chapel

at the relevant times, stated that in her responsibilities as the

Protestant Director of Religious Education, she “witnessed

and experienced anti-evangelical hostility from Chaplain

Pike and the chapel leadership under Chaplain Buchmiller.”

Colon Decl. { 9. There are no specific descriptions in the

record detailing actions or incidents which would

demonstrate that the environment in the Navy chapel was

hostile and intolerable.

Central to Plaintiff's own experience of religious

discrimination is his claim that Captain Buchmiller criticized

his sermons and sought to stifle their content. See, e.g., First

A-27

Am. Compl. ¥ 60; Veitch Dep. at 346:6-14. Plaintiff's allegations

relate to a sermon he gave on November 8, 1998, which

elicited several complaints addressed to Captain Buchmiller.

Veitch Dep. at 376-77 (describing his sermon as “anti-priest.”).

The complaints came from chaplains and charged Plaintiff

with “speaking ill of other chaplains” and calling them

“unregenerate.” Buchmiller Dep. at 92-93. Although Captain

Buchmiller himself did not attend or read Rev. Veitch’s

sermon, he was compelled to discuss the sermon with

Plaintiff in light of those complaints. The parties disagree

about what exactly was said at the meeting between Plaintiff

and Captain Buchmiller: Plaintiff testified that Captain

Buchmiller forbade him to preach “Sola Scriptura,” a central

tenet of Plaintiff's faith. Veitch Dep. at 346. Captain

Buchmiller testified that he did not forbid Plaintiff from

preaching Sola Scriptura, but instead asked him not to

denigrate other chaplains. Buchmiller Dep. at 93, 184 (“I told

him that I had no problem with Sola Scriptura as long as he

was not being divisive and destroying the reputation of the

other chaplains.” Id. at 184.). Following the meeting, Plaintiff

sent an e-mail to Captain Buchmiller:

(1) You will need to be far more specific in

your statements about “antipriest.” I didn’t

understand your point. You were pretty emotional

and dogmatic. ...

(2)... you should ask before making |

statements particularly in the emotional tones and in

front of RP’s. The junior RP’s have trouble with the

gossip from senior khaki. I have advised you about

that. ...

A-28

E-mail from Veitch to Buchmiller, Nov. 12, 1998. This e-mail

was followed shortly thereafter by another e-mail to Captain

Buchmiller:

You will have to be “much more” thorough in your

counseling to me dtd. 12 Nov. 98. You will need to

capture it in writing. If it is not written, it does not

exist....

Your written counsel was distinctively unhelpful due

to its vagueness and lack of definition. .. .

(2) Your comment about “negativity” in the sermon

on 8 Nov. 98. You will just have to ask the 70+ people

who were there. . . . You will have to be far more

explicit and thorough to satisfy my inexorable thirst

for truth.

(3) Iam pressing for a return to the old wells of

theology. Neither you, any CO [Commanding

Officer], or the CNO will quench that. . . . This is the

lead reason why I will leave the CHC [Chaplain

Corps]. I desire to work alongside those with a

similar vision. . . .

E-mail from Veitch to Buchmiller, Nov. 13, 1998, 9:05 a.m.

Captain Buchmiller responded to Plaintiff in writing,

explaining that “[S]ola [S]criptura is not my problem,” and

counseling Plaintiff not “to imply that everyone else is

wrong” or that “you are the only source of the truth with

implications that our other chaplains have no valid

theology.” E-mail from Buchmiller to Veitch, Nov. 13, 1998.

Plaintiff replied to Captain Buchmiller: “You clearly have not

gotten it,” blaming him for “being all over the place” and for

making “an imputation you can’t sustain.” Email from

Veitch to Buchmiller, Nov. 13, 1998, 11:55 a.m. Rev. Veitch

wrote that the issue between them became “personal,” and

A-29

that same day, Plaintiff filed an EEO Complaint’ against

Captain Buchmiller, alleging the following as the basis for

his complaint:

Need assistance and counsel re: content of sermons.

Feeling harassed by command chaplain. This is the

second time this has happened. A third instance

occurred with twists on a sermon from Matthew 10. ]

have been counselled [sic] about negativity and non-

pluralism without adequate definition.

EEO Complaint, Nov. 13, 1998.

'The EEO Complaint was filed through the Navy’s formal

grievance channels, established under the authority of 10 U.S.C. §

5013(g), for military personnel to file allegations

of reprisal or of discrimination based on race, color, religion,

gender, or national origin.

2The Chaplains Manual outlines important policies with respect to

the overarching purpose and role of chaplains in the Navy,

including the environment of pluralism:

The religious context of the Navy, like that of American

society at large, is one of religious pluralism, in which

independent churches and religious bodies coexist in

mutual respect. Because of the impracticality of providing

clergy of every faith or denomination in every ship or

station, the Navy and the churches of America evolved

jointly a pattern of cooperative ministry. The principle of

cooperative ministry places on every chaplain the

obligation to:

a. Make provision for meeting the religious needs

of those in the command who are adherents of

other churches.

b. Cooperate with other chaplains and commands

in meeting the religious needs of members of the

chaplain’s own faith group.

Chaplains Manual § 1202(5).

A-30

Commander Lawrence Zoeller, a Medical Corps

Officer, conducted the equal opportunity investigation and

concluded that Rev. Veitch “engaged in nonpluralistic

activity as evidenced by his sermons and his statements to

the inquiry officer.”2 EEOC Report, { 4. Commander Zoeller

also concluded that Captain Buchmiller counseled Chaplain

Veitch both formally through mid-term counseling and his

fitness report, and informally during the past 10 months to

be less negative in his sermons and have a “more pluralistic

approach to Christian ministry.” Id. Commander Zoeller’s

report included the following definition of pluralism:

Pluralism is a_ well-established doctrine

encompassing both ethical . . ., administrative . . .,

and practical standards . . ., in the USN Chaplain

Corps. The basic tenant of pluralism has a long

history in the Chaplain Corps ....In laymen’s terms

the Navy Chaplain must minister to all faiths in such

a manner to be inclusive . . . to all and unoffensive . . .

to all Navy personnel. EEOC Report, Attach. 1. Based

on this concept, Commander Zoetler determined that

Chaplain Veitch’s sermons were “derogatory to other

faiths because of specific references to basic beliefs of

other religions,” and dismissed Plaintiff's EEO

Complaint. EEOC Report, { 4, Attach. 1.

Commander Zoeller testified that he believed that

Navy chaplains would “have to be very careful to be

pluralistic in their sermons,” especially knowing that there

could be members from a different religious group or

denomination in their congregations. Zoeller Dep. at 33:11-

34:19. Plaintiff's congregation was composed of several

Evangelical Protestant denominations, including liturgical

and evangelical. Bryan Decl. JY 2, 7(c). In support of his

A-31

claim that Commander Zoeller improperly labeled his

sermons as non-pluralistic, Plaintiff cites to the testimony of

Lieutenant Commander Mark Hendricks, who was deposed

as an authority on the Navy’s policy of pluralism and made

representations on behalf of the Navy about that policy.

Commander Hendricks explicitly stated that 10 U.S.C. § 6031

and Naval Regulation 08173 “are two of the policy

statements that speak to what chaplains are able to do,” and

that “the concept of pluralism would most closely depict the

environment in which we're called to serve as chaplains in

the military,” noting that “the Navy doesn’t dictate what is

preached, so the chaplain has freedom in that environment.”

Hendricks Dep. at 27:10-24; 127:11-24. Plaintiff concedes,

however, that after November 13, 1998, Captain Buchmiller

neither mentioned the issue of Sola Scriptura nor ever raised

problems with any of Plaintiff's sermons. Veitch Dep. at 398-

99. His additional basis for alleging discrimination and

hostility is premised on Captain Buchmiller’s alleged remark

- to Plaintiff's wife shortly after his arrival in Naples that he

“won't be doing much here.” While the parties contest the

meaning of this statement, Plaintiff concedes that Captain

Buchmiller had assigned him the duty to assist with

Vacation Bible School. Veitch Dep. at 270-71, 282-83. Plaintiff

did not take this assignment seriously because he learned

about it from a less senior chaplain. See Veitch Dep. at 281-83.

Plaintiff, however, did not attempt to address the issue of

collateral duties with Captain Buchmiller. Veitch Dep. At 257.

In Rev. Veitch’s June 1998 mid-term counseling report,

310 US.C. § 6031 and Naval Regulation 0817, which mirrors it,

specify that “[a]n officer in the Chaplain Corps may conduct public

worship according to the manner and forms of the church of which

he is a member.” 10 U.S.C. § 6031 (2004).

A-32

Captain Buchmiller noted that Chaplain Veitch did not

perform collateral duties. Fitness Report for Veitch, from Dec.

1997-Mar. 1998; see Buchmiller Decl., J 3. In the “Mission

Accomplishment and Initiative” section of the fitness report,

Captain Buchmiller remarked that Plaintiff did “only what

[he] want[ed] to do.” Fitness Report for Veitch, from Dec. 1997-

Mar. 1998. Chaplain Veitch was also characterized as “not

dependable: and not being “private” in his e-mails, needing

“more cooperation with . . . [Vacation Bible School.]” Fitness

Report for Veitch, from Dec. 1997-Mar. 1998.

In January 1999, Plaintiff was assigned six collateral

duties, including Vacation Bible School. Buchmiller Decl. { 3,

Attach.1. Plaintiff, however, was dissatisfied with the nature

of his duties and expressed his discontent in an e-mail to

Captain Buchmiller: “I offered, at midterm counselling [sic],

a rejoinder to which you offered no dispute or counter. And

then, all of a sudden, I am assigned in 1999 “6” duties?

Called from the “bench” to the field? That is a weak

metaphor. The ‘grave’ is more appropriate. You put me in

the grave, dead, cold, lifeless, and now, there is to be a

resurrection? . .. . That will be like trying to get blood out of

a turnip. Chaplain Buchmiller, you are not Jesus... not even

close.” E-mail from Veitch, Feb. 8, 1999.

Plaintiff stated that he would not perform any

collateral duties that involved working with Captain

Buchmiller or Chaplain Pike “for personal and religious

reasons.” Veitch Dep. at 415-16 (referring to E-mail from Veitch,

Feb. 8, 1999). Plaintiff also testified that after he had

mentioned to Chaplain Buchmiller that he was thinking

about resignation, Chaplain Buchmiller began to ask him on

a daily basis when he would resign. Veitch Dep. at 285:8-

287:4, 410:6-411:2. Plaintiff, however, acknowledged that

A-33

Captain Buchmiller stopped asking him about resignation

upon Plaintiff's request. Veitch Dep. at 287:1-4.

Following these events, Captain Coyne, the

commanding officer, became aware of the email

correspondence between Plaintiff and Captain Buchmiller.

After reviewing the EEOC

Report completed by Commander Zoeller, Captain Coyne

concluded that there was no evidence of discrimination

against Rev. Veitch, instead finding that Plaintiff's conduct

was not “in keeping” with his understanding of the

relationship between a Lieutenant Commander and a

Captain. Coyne Dep. at 68-69 (finding that the content of the

e-mails deviated “from a military bearing and discipline

standpoint.” Id. at 71.) At the time Plaintiff was

contemplating filing another discrimination complaint

against Captain Buchmiller, Captain Coyne pressed charges

against Plaintiff for disrespect toward Captain Buchmiller.

Captain Coyne testified that this measure was supported by

his finding that Chaplain Veitch “attacked [Buchmiller’s]

position as a senior officer,” demonstrating “continued

insubordination.” Coyne Dep. at 84, 184. Plaintiff admitted

that he thought it was conceivable that Captain Coyne might

consider some of his emails to Captain Buchmiller to be

disrespectful. Veitch Dep. at 421; see also id. at 330:13-15

(acknowledging that there was “an element of sarcasm[,] . . .

frustration and annoyance” in his emails to Captain

Buchmiller.) Plaintiff testified that he believed that it was

“not standard practice” to address a senior officer

disrespectfully, but that he felt that he was entitled to use a

sarcastic tone after having unsuccessfully attempted to

resolve his problems. Veitch Dep. at 330-

33, 335-36.

L

Based on his finding of insubordination, Captain

Coyne initially considered taking Plaintiff to court-martial,

but he determined that a “Captain’s Mast,” a form of non-

judicial punishment under Article 15 of the Uniform Code of

Military Justice (“UCMJ”), would be appropriate. See Coyne

Dep. at 147-48 (testifying that as a commanding officer he

had various options for discipline, such as “various sorts of

letters and/or court martial.” Id. at 154:6-10.) As a result, Rev.

Veitch was charged with “disrespect towards a superior

commissioned officer for e-mails from September 2, 1998,

through February 8, 1999, sent to Captain Buchmiller that

showed “marked disdain, insolence, and contempt” under

Article 89 of the UCMJ and for “failure to go to appointed

place of duty” for absences on August 14, 1998, October 9

and 29, 1998, and November 30, 1998, under Article 86.4

Veitch Dep. at 423-24, 426-27, Ex. 19. After consulting with

counsel, Veitch refused the Captain’s Mast. Veitch Dep. at

434-35. Captain Coyne then decided to pursue the charges

through court-martial proceedings. See, e.g., Coyne Decl. { 4.

In anticipation of the court-martial, Plaintiff was removed

from his preaching duties, Coyne Dep. at 102, and reassigned

duties at the Family Service Center. Veitch Dep. at 454.

Veitch’s fitness report prepared by Captain Coyne stated that

Plaintiff was “unwilling to adapt to military requirements. . .

. Continues to create friction within the |

* The following failures were recorded in the Inspector General

Report: On August 14, 1998, Plaintiff failed to appear for the arrival

of the USS Arleigh Burke, and to provide an orientation brief to its

crew. DOD Military Whistleblower Reprisal Investigation, Apr. 24,

2000, at 14 (hereinafter “DOD Investigation”). On October 9, 1998,

he failed to give a chaplain briefing without authority. Plaintiff also

failed to go to All Officer Meetings held on October 29 and

November 30, 1998. DOD Investigation, at 14.

A-35

chapel community. [Was] [u]nwilling to work with other

chaplains. Uses religious persecution as an excuse for poor

performance. . . . [Was] [dJetrimental to command mission .

accomplishment. Was removed from pulpit for failure to

preach pluralism among religions.” Veitch’s Fitness Report,

June 15, 1999. Captain Coyne recommended that Veitch be

separated as unfit to be a Navy Chaplain. Id.

In his deposition, Captain Coyne in retrospect

explained that his removal of Rev. Veitch from his pulpit

was entirely based on his concern that Plaintiff would use

the pulpit to launch personal attacks not only on Captain

Buchmiller but also on other chaplains and servicemen and

to denigrate other religious beliefs. Coyne Dep. at 89-90,

102:4-9. Captain Coyne believed that “the theoretical

disputes between Captain Buchmiller and Commander

Veitch .. . under no circumstances would . . . justify the tone

and the demeanor of the e-mails that Commander Veitch

sent to Captain Buchmiller.” Coyne Dep. at 182:24-183:5.

Lieutenant Commander Hendricks explained that although

the “Navy does not dictate what chaplains preach in the

context of their sermons,” chaplains must exercise decorum

and courtesy in addressing others as needed to maintain

“good order and discipline in that command.” Hendricks Dep.

at 83.

The events preceding Plaintiff's actual separation

unfolded as follows. After initially requesting a court martial

in lieu of the non-judicial Captain’s Mast, Rev. Veitch, with

the advice of his assigned Navy JAG counsel, resigned his

commission. First Am. Compl. at ¥ 25. Plaintiff testified that

the JAG attorney told him that resignation was one of his

options to avoid the overseas court-martial. See Veitch Dep. at

424-26. Following Veitch’s resignation, Captain Coyne

A-36

terminated the court-martial charges, instead issuing a

Nonpunitive Letter of Caution, dated April 8, 1999. Coyne

Decl. 5. In April 1999, shortly after he submitted his request

for resignation, Plaintiff requested that the Department of

Defense (DOD) Inspector General (IG) investigate the

circumstances surrounding his resignation. See DOD

Investigation; First Am. Compl. J 27. Plaintiff's complaint

alleged that his resignation was coerced and that Chaplain

Buchmiller had created a culture of religious prejudice and

oppression against him and the evangelical faith groups at

Naples. Id. In May of 1999, DOD IG reported that it would

investigate Plaintiff's complaint. See, e.g., First Am. Compl. ¥

28.

On May 17, 1999, Plaintiff's resignation was

approved with a November 1999 separation date. In June of

1999, Captain Coyne’s tour of duty as the Commanding

Office at Naples ended and he was relieved by Captain B,J.

Gray. Coyne Decl. at J 6. On July 23, 1999, Plaintiff wrote a

letter to the Secretary of the Navy, via the new Commanding

Officer, Captain Gray, and the Chief of Naval Personnel,

requesting to withdraw his resignation and claiming that his

March 1999 resignation was coerced. Veitch Dep. at 456-57,

Ex. 24. Captain Gray forwarded Plaintiff's withdrawal

request, strongly recommending disapproval. Gray Decl. { 3.

In ea*'y November of 1999, the Office of the Secretary of the

Navy ordered Plaintiff's resignation orders held in abeyance

pending the outcome of the DOD IG’s investigation into his

reprisai complaint.First Am. Compl. J] 31-32. The Inspector

General investigation was completed on May 23, 2000,

concluding that Plaintiff's “disciplinary problems .

resulted from his own misconduct” and that his allegations

of reprisal were unsubstantiated. See Gott Dep. at 20-22, Ex. 1.

Plaintiff was informed that the DOD IG did not find

impropriety on the part of the Navy. Veitch Dep. At 475-76,

Ex. 33. The DOD IG investigation report contains a statement

made by Captain Coyne that it was his “judgment that [the]

letter of resignation coupled with the nonpunitive letter was

sufficient punishment for what [Veitch] had done.” DOD

Investigation, at 26.

On September 30, 2000, Plaintiff was separated from

the Navy. Veitch Dep. at 493. On November 21, 2000, Plaintiff

received his leave payment from the Navy. Veitch Dep. at

480:21-481:1. On December 13, 2000, Plaintiff filed his

complaint in this Court for declaratory and equitable relief

and moved for a preliminary injunction, requesting, inter

alia, that this court order the Navy to pay Plaintiff for the

alleged unused leave remaining when he was separated

from active duty. In December 2000, Defendants mailed a

check for payment of unused leave to Plaintiff. Argall Decl.

On February 27, 2001, this Court denied Plaintiff's

motion for a preliminary injunction, holding that Plaintiff

failed to demonstrate that he would suffer irreparable harm

if his motion were denied, and that Plaintiff had not

demonstrated that he had a substantial likelihood of success

on the merits of his claims. Veitch v. Danzig, 135 F. Supp. 2d

32 (D.D.C. 2001).

DISCUSSION

I, SUMMARY JUDGMENT PRINCIPLES

Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” FED. R.

CIV. P. 56(c). In this case, the parties have filed cross-motions

for summary judgment, and they disagree on some facts

pertaining to their differing legal theories. Cross-motions for

summary judgment do not alone warrant granting summary

judgment unless one of the parties is entitled to judgment as

a matter of law on facts that are not genuinely disputed,

(1) because a party entitled to summary judgment

must bear the burden of establishing the

indisputability of the facts which warrant judgment

in his favor;

(2) while the facts, which would justify judgment for

one party on a particular legal theory, may be

indisputable, the facts, which would justify judgment

for the adverse party on a different legal theory, may

be disputed; and (3) a party may make concessions

for the purpose of his motion that do not carry over

and support the motion of his adversary.

Volunteer State Life Ins. Co. v. Henson, 234 F. 2d 535, 537 (5th

Cir. 1956) (citing 6 Moore's Federal Practice, 2d ed. 2092, Par.

56.13.); see Bricklayers, Masons and Plasterers Int’l Union of

America v. Stuart Plastering Co., 512 F. 2d 1017, 1023 (5th Cir.

1975) (“The rationale for this rule . . . is that each party

moving for summary judgment may do so on different legal

theories dependent on different constellations of material

facts.”). Thus, when deciding cross-motions for summary

judgment, the court “must evaluate each motion on its own

merits and view all facts and inferences in the light most

favorable to the nonmoving party.” Westfield Ins. Co. v. Tech

Dry, Inc., 336 F. 3d 503, 506 (6th Cir. 2003).

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Summary judgment is regarded as “an integral part

of the Federal Rules as a whole, which are designed ‘to

secure the just, speedy and inexpensive determination of

every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106

S. Ct. 2548, 2555 (1986) (quoting FED. R. CIV. P. 1.). The court

must view the evidence and draw all reasonable inferences

in favor of the non-moving party, and determine “whether

the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 259, 106 S. Ct. 2505, 2516 (1986)

(internal citation omitted). “Where the record taken as a

whole could not lead a rational trier of fact to find for the

non-moving party, there is no ‘genuine issue for trial.’”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587, 106 S. Ct. 1348, 1356 (1986) (internal citation omitted).

Furthermore, Rule 56 requires that a plaintiff, “in advance of

trial and after a motion for summary judgment has been filed

... come forward with some minimal facts to show that the

defendant may be liable under the claims alleged.”

Sharafeldin v. Md. Dep’t of Pub. Safety and Corr. Servs., 131 F.

Supp. 2d 730, 736 (D. Md. 2001), aff'd 21 Fed. Appx. 227, 2001

(4th Cir. 2001) (unpublished opinion). If the nonmoving

party “fail[s] to make a sufficient showing on an essential

element of her case with respect to which she has the burden

of proof,” then “the plain language of Rule 56(c) mandates

the entry of summary judgment.” Celotex Corp., 477 U.S. at

322-23. “Moreover, only disputed issues of material fact,

determined by reference to the applicable substantive law,

will preclude the entry of summary judgment.” Sharafeldin,

131 F. Supp. 2d at 736. “Factual disputes that are irrelevant

or unnecessary will not be counted.” Anderson, 477 U.S. at

248.

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Applying these principles to the facts of this case, the

court has concluded that Defendants’ motion for summary

judgement must be granted because Plaintiff has failed to

show Defendants’ liability for the claims alleged as

explained below.

II. CONSTRUCTIVE DISCHARGE VERSUS VOLUNTARY

RESIGNATION

The threshold issue in this case is whether Plaintiff's

resignation was voluntary or coerced, as his standing to seek

relief in this court is contingent on the court's finding of

constructive discharge. See Taylor v. Fed. Deposit Ins. Corp.,

132 F. 3d 753, 767 (D.C. Cir. 1997); Kim v. United States, 47

Fed. Cl. 493, 497 (2000). The court examines all the facts and

circumstances in order to determine whether a specific

resignation or retirement qualifies as voluntary. See McIntyre

v. United States, 30 Fed. Cl. 207, 211 (1993). Generally,

resignations are presumed to be voluntary. See, e.g., Kim, 47

Fed. Cl. at 497. “The presumption of voluntariness, however,

can be rebutted [1] by demonstrating that the government

caused the plaintiff to resign under threat of duress or by

other coercion, [2] by demonstrating that the government

intentionally misrepresented information relied on to the

plaintiff's detriment, or [3] by showing that the plaintiff tried

to withdraw his resignation before its effective date... .”

McIntyre, 30 Fed. Cl. at 211; see Bergman v. United States, 28

Fed. Cl. 580, 585 (1993); Christie v. United States, 207 Ct. Cl.

333, 337-41, 518 F.2d 584, 587-88 (1975).

In the present case, Plaintiff argues that he was

constructively discharged because of intolerable work

conditions created by Captain Buchmiller along with some

other chaplains, alleging that the religious hostility towards

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Evangelical Protestants was intolerable and that Chaplain

Buchmiller’s “policy, program and practice of religious

discrimination and personal prejudice made plaintiff's

working conditions oppressive, intolerable and corrosive.”

First Am. Compl. 4 75. Plaintiff's additional theory is

premised on his allegation of duress that rendered his

resignation involuntary. Plaintiff argues that he was

constructively discharged because Chaplain Buchmiller

along with some other chaplains coerced him into

resignation by preventing him from preaching strictly the

tenets of his religion and directing him to “preach pluralism

among religions.” He claims that the Navy coerced him into

resigning by threatening him with court-martial, and,

alternatively, alleging that he was misled into resigning

because the charge underlying the court-martial — disrespect

toward a superior commissioned officer in violation of

UCM] Article 89 — was unconstitutional and otherwise

legally unsupportable. Pl. Br. in Supp. Of Opp’n and Cross-

Mot. for Summ. ]., at 33. The court will address these theories

and further examine all other facts and circumstances that

Plaintiff argues coerced him into resignation.

a. Plaintiff's Claim of Intolerable Work Conditions

To establish constructive discharge based on religious

hostility or discrimination, the plaintiffs must not only show

acts of discrimination, “but also that the employer

deliberately made work conditions intolerable, leading the

employee to quit involuntarily.” See Adair v. England, 183 F.

Supp. 2d 31, 67 (D.D.C. 2002) (considering the pleading

requirements for individual Navy chaplains’ claims of

constructive discharge). Although the case law addressing

the theory of intolerable work conditions involves civilian

workers bringing Title VII discrimination claims,’ the

standards articulated in those cases are instructive.

In deciding whether a work environment is hostile, courts

have looked at the totality of circumstances from a

reasonable person perspective and from the plaintiff's

subjective perspective. See, e.g., Mungin v. Katten Muchin &

Zavis, 116 F. 3d 1549, 1558 (D.C. Cir. 1997) (A constructive

discharge requires “a finding of discrimination and the

existence of certain ‘aggravating factors’ . . . that would force

an employee to leave.”); Taylor, 132 F. 3d at 766 (“[A]

constructive discharge occurs where the employer creates or

tolerates discriminatory working conditions that would

drive a reasonable person to resign.”); Goldmeier v. Allstate

Ins. Co., 337 F. 3d 629, 635 (6th Cir. 2003); Hafford v. Seidner,

183 F. 3d 506, 512 (6th Cir. 1999); Moore v. KUKA Welding Sys.

& Robot Corp., 171 F. 3d 1073, 1080 (6th Cir. 1999); Kocsis v.

Multi-Care Management, Inc., 97 F. 3d 876, 887 (6th Cir. 1996).

Such circumstances include “the frequency of the

discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance;

and whether it unreasonably interferes with an employee's

work performance.” Harris v. Forklift Sys., 510 U.S. 17, 23, 114

S. Ct. 367, 371 (1993); Conway-Jepsen v. Small Business Admin.,

303 F. Supp. 2d 1155, 1167 (D. Mt.

> Title VII protection is extended to employees in “military

departments” and executive agencies,” 42 U.S.C. § 2000e-16(a)

(2004), but the EEOC has interpreted Title VII not to apply to

uniformed members of the military departments. See Hodge v.

Dalton, 107 F. 3d 705, 707-12 (9th Cir. 1997) (upholding this

interpretation and noting consensus of the circuit courts of

appeals on that issue).

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2004) (the plaintiff, a female federal employee, established a

Title VII retaliation claim because she reasonably found her

hostile working conditions intolerable due to her

supervisor's “lengthy, continuous, and pervasive pattern of

retaliatory treatment for the reason that [the plaintiff] had

objected to employment practices which were unlawful

under Title VII.”). Furthermore, to establish hostile work

environment, the plaintiff must show that the offending

behavior was “sufficiently severe or pervasive to alter the

conditions of . . . [his] employment and create an abusive

working environment.” Pa. State Police v. Suders, 124 S. Ct.

2342, 2347 (2004) (quoting Meritor Sav., FSB v. Vinson, 477

U.S. 57, 67, 106 S. Ct. 2399, 2405 (1986)).

In this case, Captain Buchmiller approached Veitch

believing that Plaintiff's sermons were improperly negative

and undermined the environment of pluralism enshrined in

the rules of the Navy Chaplain Corps. See, e.g, Chaplains

Manual § 1202(5). For instance, in one of his sermons, Veitch

allegedly preached that there were unregenerate clergy in

the Chaplain Corps. See Prelim. Inquiry EEO Complaint, at 2,

5. Plaintiff admitted that Captain Buchmiller criticized his

sermons only on a few occasions, and there are no indicia of

religious animosity toward Plaintiff in Captain Buchmiller’s

e-mails. Furthermore, Plaintiff conceded that Captain

Buchmiller neither mentioned the issue of Sola Scriptura nor

ever raised problems with any of Plaintiff's sermons after

November 13, 1998. Veitch Dep. at 398-99. Likewise, Captain

Buchmiller stopped inquiring about Plaintiff's plans to

resign upon Plaintiff's request. Veitch Dep. at 287:1-4. Plaintiff

has not met his burden of proving “intolerable” conditions

that would have compelled a reasonable person to resign

because Captain Buchmiller’s actions were not “severe or

pervasive” considering the totality of circumstances6. See

Suders, 124 S. Ct. at 2347, 2357 (holding that there were

genuine issues of material fact concerning the plaintiff's

hostile work environment and constructive discharge claims,

where, inter alia, the plaintiff's “male supervisors subjected

her to a continuous barrage of sexual harassment” until the

time she resigned); Conway-Jepsen, 303 F. Supp. 2d at 1161

(finding hostile environment where the employer assigned

numerous “program-irrelevant” work projects to the

plaintiff, made their completion impossible by shutting

down computers carly, and screamed and swore at the

plaintiff for making clerical mistakes).

In addition, the declarations and depositions by

several individuals — mostly civilians involved in the Navy

chapel as members or workers at relevant times — submitted

by Plaintiff to support his argument that the environment at

the Chaplain Corps under the leadership of Buchmiller was

hostile toward evangelicals, do not furnish any concrete

descriptions of that environment. These declarations provide

purely subjective feelings of those individuals without

establishing an objective basis for their experience of

hostility. No other facts point to “intolerable” work

conditions that would force a reasonable person to resign.

See Mungin, 116 F. 3d at 1558. Therefore, Plaintiff did not

demonstrate a triable issue of hostile work environment.

6 The court need not decitie whether Captain Buchmiller’s remarks

concerning Plaintiff's sermons constituted religious discrimination

or a violation of Plaintiff's "irst Amendment rights. It suffices to

determine that regardless uf whether Captain Buchmiller could

advise Chaplain Veitch on the Navy's policy of pluralism, Captain

Buchmiller’s remarks about Plaintiff's sermons were not so

pervasive or severe as would force a reasonable person to resign.

See Suders, 1245S. Ct. at 2347.

A-45

b. Plaintiff’s Claim of Duress

In order to prove duress, the plaintiff must establish

“(1) that one side involuntarily accepted the terms of

another; (2) that circumstances permitted no other

alternative; and (3) that said circumstances were the result of

coercive acts of the opposite party.” Pitt v. United States, 420

F. 2d 1028, 1032 (Ct. Cl. 1970) (internal citation omitted); see

Brown v. United States, 30 Fed. Cl. 227, 229-30 (Fed. Cl. 1993)

(finding voluntary resignation where the plaintiff, a former

Army service member, 1) chose the conditions of his

resignation; 2) had the alternative of appearing before a

court-martial and facing the impending charges against him;

and 3) “[did] not dispute that he was court-martialed for the

legitimate purpose of imposing criminal sanctions, rather

than for the purpose of inducing his resignation”); Kim, 47

Fed. Cl. at 494, 498-99 (finding voluntary resignation where

the plaintiff, a commissioned major in the U.S. Army

Medical Service Corps, had a reasonable alternative to

requesting retirement because she had the option of

challenging the allegedly improper elimination action by the

Army before a Board of Inquiry); but see Roscos v. United

States, 213 Ct. Cl. 34, 549 F.2d 1386, 1389 (1977) (finding that

the plaintiff's, an IRS employee's, retirement was

involuntary because the plaintiff's wrongful transfer to a

distant city coupled with the hardship to his family

constituted “unjustifiable coercive action by _ the

Government” where it was infeasible for the plaintiff to

commute daily to a new work site and impractical for him to

relocate because of the indefinite resolution of his

administrative appeal).

Plaintiff in this case claims that the Navy coerced him

into resignation by seeking to connect Captain Coyne’s

decision to bring the charge of disrespect with Captain

Buchmiller’s alleged acts of religious hostility or

discrimination and to cast them as a concerted effort by the

Navy to induce Plaintiff's resignation. Specifically, Plaintiff

argues that he was coerced to resign because 1) the “Navy's

attempt to court-martial Chaplain Veitch was an act of gross

misconduct in that it had no foundation since its underlying

basis rested on [Commander] Zoeller’s unlawful,

unconstitutional definition of pluralism,” and _ that 2)

“Captain Coyne’s Captain’s Mast and his decision to bring

Chaplain Veitch to court-martial cannot have a legal effect”

because the charge underlying the court-martial was

unconstitutional and otherwise insupportable. Pl. Br. in Supp.

of Opp’n and Cross-Mot. for Summ. J., at 33-39.

The evidence on the record, however, abundantly

shows that Rev. Veitch was not charged with “disrespect

toward a superior commissioned officer” based on the

doctrinal grounds that underlay the dispute between

Plaintiff and Captain Buchmiller. Captain Coyne’s objective

was to discipline Rev. Veitch for his disrespectful demeanor

and failure to appear at appointed places. Plaintiff did not

contest the primary factual basis for the disrespect charge,

admitting that his emails to Captain Buchmiller were

sarcastic, deviating from “standard practice.” See Veitch Dep.

at 330-33, 335-36. The charge of “disrespect toward a

superior commissioned officer” was based on Captain

Coyne’s conclusion that Chaplair Veitch failed to treat

another chaplain of a higher rank with due respect.’ See

7The Manual for Courts-Martial defines “disrespectful

behavior” as follows:

Disrespectful behavior is that which detracts from the respect due

the authority and person of a superior commissioned officer.

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Coyne Dep. at 84, 184. In addition, Plaintiff did not establish

how this disciplinary charge, based on the content of

Plaintiff's e-mails to Captain Buchmiller, is a reprisal for

Plaintiff's EEO Complaint. Furthermore, Commander

Zoeller’s phrase that Chaplain Veitch was removed from his

pulpit for “failure to preach pluralism” is not a completely

accurate description of the reason for Plaintiff's removal

from the pulpit. The record shows that Captain Buchmiller

criticized Plaintiff's sermons for denigrating other chaplains

and did not instruct or direct Plaintiff to “preach pluralism”

or any other doctrine. In fact, this inept phrase appeared in

the fitness report completed by Captain Coyne after he

learned about the e-mail correspordence between. Plaintiff

and Captain Buchmiller and decided that Chaplain Veitch

should be disciplined for his disrespectful demeanor. See

Veitch’s Fitness Report, June 15, 1999. Plaintiff's claim that he

was not allowed to preach in a certain manner, which

arguably violated the Navy’s policy of pluralism, see, e.g,

Chaplains Manual § 1202(5), does not exonerate Plaintiff from

his failure to respect a fellow chaplain who was senior in

rank.

Considering Plaintiff's claim that bringing a chaplain

to court-martial under Article 89 is unconstitutional or

otherwise illegal, the court believes that there cannot be a

rule that it is always unconstitutional to charge a chaplain

with disrespect toward a superior commissioned officer.

It may consist of acts or language, however expressed, and

it is immaterial whether they refer to the superior as an

officer or as a private individual. Disrespect by words may

be conveyed by abusive epithets or other contemptuous or

denunciatory language. Truth is no defense.

Manual for Courts-Martial, Art. 89, United States (2000 ed.).

A-48

fU

The court’s conclusion in Rigdon v. Perry that a Navy

chaplain could not be a “superior commissioned officer” in

the context of the Article 89 was stated in dictum, and the

constitutionality of subjecting chaplains to military discipline

has not been directly addressed by a higher court. See 962 F.

Supp. 150, 158-59 (D.D.C. 1987). Nonetheless, the Second

Circuit held that an independent civilian chaplaincy would

not be a feasible alternative to the existing Chaplain Corps

because, inter alia, there was no evidence that “civilian

chaplains would accept military discipline, which is essential to

the efficient operation of our armed forces.” Katcoff v. Marsh, 755

F. 2d 223, 236 (2d Cir. 1985) (emphasis added); see also In re

England, Sec’y of the Navy, 375 F. 3d 1169, 1171 (D.C. Cir.

2004) (observing that a Navy chaplain has a “unique” role

within the service, “involving simultaneous service as clergy

...and as a commissioned naval officer.”).

Furthermore, in this case, Plaintiff's claim that the

court-martial was illegal or unconstitutional is not

dispositive for Plaintiff's claim of constructive discharge

because Plaintiff admitted that his decision to resign was

motivated by his desire to avoid the court-martial

proceeding. First Am. Compl., { 25. See Pitt, 420 F. 2d at 1032-

33 (finding that the plaintiff resigned voluntarily even

though the underlying court-martial was unconstitutional

because the plaintiff's “predominant purpose” was “to

defeat court-martial jurisdiction by severing his employment

connection with the Army.”’). In addition, no evidence in the

record suggests that at the time of his resignation, Rev.

Veitch thought that the charge of disrespect was

8Pitt involved an Army civilian employee who was charged with

various homosexual and lewd acts, some of which involved

minors. The Army authorities decided to court-martial the

plaintiff. The plaintiff resigned on

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unconstitutional. See Veitch Dep. at 335-36, 344-45, 421.

Importantly, Plaintiff had two reasonable alternatives to

resignation, a Captain’s Mast or the court-martial. See e.g.,

Brown, 30 Fed. Cl. at 230-31; Pitt, 420 F. 2d at 1034. Plaintiff's

argument that remaining in the Navy and fighting the

disrespect charge would have been futile and, therefore, the

court-martial was not a reasonable alternative to resignation

is without merit.

As commissioned officers, chaplains are subject to the

court-martial jurisdiction, see Coppedge v. Marsh °, 532 F.

Supp. 423 (D.C. Kan. 1982), and even though military courts

do not have the expertise to consider certain constitutional

claims, those constitutional claims can be raised during

court-martial proceedings. See, e.g., Schlesinger v. Councilman,

420 U.S. 738, 759-60, 95 S. Ct. 1300, 1313-14 (1975); Noyd v.

Bond, 395 U.S. 683, 696 n.8, 89 S. Ct. 1876, 1884 n.8 (1969).

Finally, no facts point to the possibility that the Navy

intentionally misrepresented information relied on to

Plaintiff's detriment. See Bergman, 28 Fed. Cl. at 587-88.

Plaintiff had the opportunity to obtain the advice of counsel

from the time he was charged with Article 89. Thus, he

refused the option of a Captain’s Mast and subsequently

resigned to avoid the court- martial after having consulted

with counsel.

the eve of his trial and was terminated when the court-martial was

well under way. 420 F. 2d at 1030. Subsequently, the Supreme

Court held unconstitutional an overseas court-martial trial of

civilian employees of the armed forces charged with noncapital

offenses in time of peace. Id. at 1031 (citing Wilson v. Bohlander, sub

nom. McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 80S.

Ct. 305 (1960)).

9 In Coppedge v. Marsh, the plaintiff was a reserve commissioned

officer and chaplain, who was tried by a general court-martial and

was convicted of “conduct prejudicial to good order and discipline,

of service discrediting,

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c. Other Factors of Voluntariness

Under certain circumstances, the presumption of

voluntariness can be rebutted by Plaintiff's showing that he

tried to withdraw his resignation before its effective date. See

Brown, 30 Fed. Cl. at 230-31; Cunningham v. United States, 423

F. 2d 1379, 1384-85 (Ct. Cl. 1970). Furthermore, the agency

has to exercise a “discernible” discretion in denying the

withdrawal of a resignation. Cunningham, 423 F. 2d at 1384-

85 (holding that a civilian Air Force employee's resignation

was involuntary, where, two weeks prior to the effective

date of the employee's resignation, the Air Force denied her

request to withdraw her resignation, unilaterally deciding

that it did not consider the withdrawal of the resignation to

the mutual advantage of the employee and the Air Force).

“The court’s power to review a military department's

decision is limited to determining whether the action was

improper because it was ‘arbitrary, capricious, or in bad

faith, or unsupported by substantial evidence, or contrary to

law, regulation or mandatory published procedure’ of a

substantive nature by which plaintiff has been severely

prejudiced.’” Gallucci v. United States, 41 Fed. Cl. 631, 642

(Fed. Cl. 1998) (quoting McIntyre, 30 Fed. Cl. At 213).

and of conduct unbecoming an officer.” 532 F. Supp. At 424. The

plaintiff filed an action in federal court asking the court to restrain

the Army from releasing him from active duty until all appeals of

his court-martial conviction were exhausted. The district court held

that it had jurisdiction, but found that the plaintiff failed to state a

claim as to a violation of his due process rights under the Fifth

Amendment and failed to state a claim that the distinction that the

Secretary of the Army had drawn between regular army officers

and reserve officers operated to deny reserve officer's equal

protection. 532 F. Supp. at 426-30. See also United States v. Ward, 13

M.J. 626, 631-32 (1982), aff'd in part, rev'd in part on othergrounds, 16

M.J. 341 (1983) (A chaplain’s status as a commissioned officer on

active duty stationed in a foreign country made him subject to the

court-martial jurisdiction.).

In the present case, Plaintiff claims that the Navy's

refusal to accept his withdrawal of the resignation was

arbitrary and capricious. Plaintiff filed his request for

withdrawal prior to the effective date of his resignation;

however, the Navy, unlike the defendant in Cunningham,

ordered Plaintiff's resignation order held in abeyance

pending the outcome of the DOD IG’s investigation into

Veitch’s reprisal complaint. See 423 F. 2d at 1384-85. Only

after the DOD IG had completed its investigation, finding

that Plaintiff's “disciplinary problems . . . resulted from his

own misconduct” and that his allegations of reprisal were

unsubstantiated, was Plaintiff finally separated. See Gott Dep.

at 20-22, Ex. 1. Thus, there was a discernible exercise of

discretion by the Navy to suspend Plaintiff's separation

awaiting the outcome of DOD IG’s investigation.

Plaintiff, however, claims that the conclusions of the DOD

IG’s investigation into his allegations of religious repression

and prejudice were superficial, allegedly omitting Plaintiff's

allegations of religious repression and prejudice; “not

interviewing identified witnesses; not addressing the trivial

and unexamined nature of the charges brought against

plaintiff, or even if there were a basis in fact or in law for the

charges.” First Am. Compl. ¥ 34. It should be noted that the

DOD IG’s investigation did not specifically concern the

voluntariness of Plaintiff's resignation. Cf, Cunningham, 423

F. 2d at 1382-85 (finding that in considering the plaintiff's

request for a grievance hearing to determine the

voluntariness of her resignation, the grievance committee

© The court concluded that in affirming its decision, the Air Force

Commander improperly relied solely upon its own grievance

procedures, while the plaintiff was entitled to some additional

procedural protections required under the Veterans’ Preference

Act. 423 F. 2d at 1382.

conducted an insufficient investigation inte the

plaintiff's resignationl0). The DOD IG conducted the

investigation under 10 U.S.C. § 1034," into Plaintiff's

allegations that in reprisal for making certain protected

communications, he was relieved of his duties as a Navy

chaplain and assigned duties at the Family Service Center.

See Letter from IG to Veitch, May 23, 2000, DOD Investigation.

The DOD IG found that responsible officials did not retaliate

against Rev. Veitch for making protected communications.

Id. The DOD IG investigator interviewed Rev. Veitch,

identified relevant personnel actions, interviewed

“responsible military officers” for each personnel action, and

interviewed relevant witnesses identified by Plaintiff. The

investigation did not attempt to determine if the e-mails that

Chaplain Veitch sent to Captain Buchmiller were sufficiently

disrespectful to warrant Captain’s Mast or court-martial

because Captain Coyne, as Commanding Officer, “was the

one to make that decision.” Id. at 22 n.15.

Even though the investigator found that it was due to

Plaintiff's EEO Complaint that Captain Coyne decided to

look at Chaplain Veitch’s competency to be a military

chaplain, the reprisal charges were not supported because by

that time Captain Coyne had issued Rev. Veitch an adverse

fitness report and had received the EEO Complaint

investigation report " indicating that the complaint was

'' The Military Whistleblower Protection Statute, 10 U.S.C. § 1034

(2004).

? Plaintiff also argues that Commander Zoeller’s investigation into

his EEO Complaint was arbitrary, capricious and contrary to law

because it reached a conclusion contrary to 10 U.S.C. § 6031 and the

Establishment clause. Plaintiff, however, does not have standing to

challenge that investigation because the court finds that Plaintiff

voluntarily resigned.

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unsubstantiated and possibly frivolous. Id. at 23. The DOD

IG noted that given the tone of Rev. Veitch’s e-mails to

Captain Buchmiller, it was possible that Captain Coyne

realized that he needed to look more closely at Chaplain

Veitch’s demeanor. Id.

Importantly, Plaintiff did not demonstrate how the

DOD IG’s findings were contrary to law. While the scope of

the DOD IG investigation was limited as mandated by the

relevant statute, the DOD IG investigation was not arbitrary

or capricious, and its conclusions will not be upset by this

court."

13 [t should be noted that in this context, Plaintiff has not addressed

the issue of administrative exhaustion. The Supreme Court has

recognized the applicability of the doctrine of exhaustion of

administrative remedies within the military departments. See Pirist

v. Davidson, 405 U.S. 34, 37-38, 92 S. Ct. 815, 817-18 (1972) (holding

that the petitioner, who fully utilized the procedures and corrective

opportunities of the military administrative apparatus ir the Army

with respect to his request to be discharged as a “conscientious

objector,” was entitled to seek habeas corpus relief in the federal

district court on the ground that the denial of his request had no

factual basis, notwithstanding that court-martial proceedings were

pending against him wherein he could assert as defense his

entitlement to the conscientious objector status. Id. at 45, 92 S, Ct. at

821-22.). The court explained that “[t]he basic purpose of the

exhaustion doctrine is to allow an administrative agency to

perform functions within its special competence — to make a factual

record, to apply its expertise, and to correct its own errors so as to

moot judicial controversies.” Id. at 37, 92 S. Ct. at 818. In this case,

Plaintiff could seek further remedies before the Board of

Correction of Naval Records, including application for correction

of his military records under 10 U.S.C. § 1034. See Letter from IG to

Veitch, May 23, 2000, DOD Investigation. But see Adair, 183 F. Supp.

2d at 55 (holding that the plaintiffs, the Navy chaplains, did not

have to exhaust their administrative remedies before bringing their

constitutional challenges based on the First Amendment's

Establishment and Free Exercise Clauses and the Fifth

Amersiment’s Due Process Clause, reasoning that “(resolving a

claiea Gumded solely upon a constitutional

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In sum, Plaintiff had a reasonable alternative to

resignation — to appear before the courtmartial and raise his

defenses against the charge of disrespect. Plaintiff was also

offered an opportunity to resolve the disrespect charge

through the non-judicial Captain’s Mast. Plaintiff has not

sufficiently established that he resigned because of

Defendant's coercive actions, illegal actions, or an intolerable

work environment. See, e.g., McIntyre, 30 Fed. Cl. at 211.

LI. PLAINTIFF’S REMAINING CLAIMS

Defendants argue that because Plaintiff has

voluntarily resigned from the Navy and is no longer subject

to the alleged unlawful practices of the Navy Chaplain

Corps, Plaintiff lacks standing to seek declaratory and

injunctive relief to challenge the Navy’s activities. Federal

courts are limited to issuing decisions that resolve an actual

“case or controversy.” See U.S. CONST. art. III, § 2. Standing

is one of the “essential” elements of the “case or

controversy” requirement. See Lujan v. Defenders of Wildlife,

504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992) (The plaintiff

bears the burden of establishing standing.). In order to

establish standing, Plaintiff must demonstrate (1) an “injury

in fact,” which requires Plaintiff to show “an invasion of a

legally protected interest that is ‘(a) concrete and

particularized, and (b) actual or imminent, not conjectural or

hypothetical,’ . . . (2) a causal relationship between the injury

and the challenged conduct, . . . [i.e.] the injury ‘fairly can be

traced to the challenged action of the defendant,’ and has

right is singularly suited to a judicial forum and clearly

inappropriate to an administrative board.” Id. (quoting Downen v.

Warner, 481 F. 2d 642, 643 (9th Cir. 1973)).

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not resulted ‘from the independent action of some third

party not before the court,’ . . . and (3) a likelihood that the

injury will be redressed by a favorable decision.”

Northeastern Fla. Chapter of Associated Gen. Contractors of Am.

v. City of Jacksonville, 508 U.S. 656, 663-65, 113 S. Ct. 2297,

2301-02 (1993) (internal citations omitted). Importantly, a

plaintiff seeking prospective relief, such as declaratory or

injunctive relief in this case, must show more than a “past

injury”; he must demonstrate that he is “realistically

threatened by a repetition” of the alleged violation in the

future. See City of Los Angeles v. Lyons, 461 U.S. 95, 109, 124,

103 S. Ct. 1660, 1669, 1676 (1983).

In this action, Plaintiff seeks declaratory and

injunctive relief. See First Am. Compl. at 27-29. Plaintiff asks

this court, inter alia, to declare that the Navy illegally

discharged him and “[b]urdened, suppressed and interfered

with plaintiff's religious beliefs and expression of those

beliefs in violation of the Constitution, [the] RFRA, 10 U.S.C.

§ 6031, the Civil Rights Act and other federal laws” and that

the court order “the Navy to take immediate and permanent

steps to end and to remedy the Navy’s prejudice and bias

against evangelical chaplains and evangelical faith groups in

general and at Naples in particular.” First Am. Compl. at 28.

However, Plaintiff is no longer in the Navy because of his

voluntary resignation and is not facing any “real and

immediate” injury “as the result of the challenged official

conduct.” See, e.g., Lyons, 461 U.S. at 102.

The District of Columbia Circuit has held that even

where a plaintiff voluntarily chose to remove himself from

active status in the Navy, the justiciability of his claimed

constitutional violations that preceded his decision to retire

was not affected. See Emory v. Sec’y of Navy, 819 F.2d 291, 294

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(D.C. Cir. 1987) (holding that the district court could not

dismiss the plaintiff's claim for lack of subject matter

jurisdictionl4). The court of appeals explained that even

though the district court lacked the authority to order that

the plaintiff, a retired naval reserve medical corps captain, be

promoted retroactively to a rank he sought, the district court

had jurisdiction to consider the plaintiff's constitutional

claims, noting that the district court had the power to fashion

some relief if it determined that the plaintiff's claim was

meritorious. Id. at 294.

However, in Taylor v. Fed. Deposit Insurance Corp., the

District of Columbia Circuit held that a finding against a

claim of constructive discharge necessarily denies a plaintiff

the element of causation required to establish his standing to

seek reinstatement based on his First Amendment claim, and

the plaintiff's voluntary resignation moots his request for a

permanent injunction against future retaliation by

eliminating the possibility of future harm and the utility of

the injunction. 132 F. 3d at 767-68. The facts in this case are

closer to those in Taylor than in Emory. Plaintiff here lacks

standing to seek reinstatement as a remedy because his

injury, his separation from the service, was not caused by the

Navy. See Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct. 3315,

3324 (1984) (stating that to establish standing, “[a] plaintiff

must allege personal injury fairly traceable to the

defendant's allegedly unlawful conduct and likely to be

redressed by the requested relief.”). Even had the Navy

violated Plaintiffs First Amendment or

‘4 In Emory, a retired naval reserve medical corps captain brought

an action against the Navy, claiming that his non-selection for a

certain promotion was a result of racial discrimination and seeking

declaratory and injunctive relief. 819 F.2d at 291.

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equal protection rights, the court can not decide this issue as

Plaintiff has no standing because of his own action. Cf.

Taylor, 132 F. 3d at 767 (“In requesting reinstatement,

[plaintiffs] seek a remedy for injury that is in large part self-

inflicted. This is true whether we treat the defect as a matter

of standing or the merits.”). Because Plaintiff left the Navy

on his own accord, the court lacks jurisdiction over the

remaining claims in this case.

ONCLUSION

Because Plaintiff did not meet his burden of rebutting

the presumption of voluntariness of his resignation in this

case and did not show any material dispute as to his claim of

constructive discharge, the court lacks jurisdiction over his

remaining claims based on his service in the military.

Accordingly, it is hereby

ORDERED that Defendants’ motion for summary

judgment is GRANTED.

It is further

ORDERED that Plaintiff's cross-motion for summary

judgment is DENIED.

A separate Order accompanies this Memorandum Opinion.

April 4, 2005 /s/ Judith M. Barzilay

Dated:

Judith M. Barzilay

Judge

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Copies to:

Arthur A. Schulecz, Sr.

2521 Drexel Street

Vienna, VA 22180

Counsel for Plaintiff

Michael Q. Hyde

U.S. Department of Justice

Civil Division

Federal Programs Branch

P.O. Box 883

Washington, DC 20044-0883

Counsel for Defendants

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

D. PHILIP VEITCH

Plaintiff,

Vv. Civil Action No. 00-2982

HON. GORDON R.

ENGLAND, SECRETARY

OF THE NAVY, et al.,

Defendants.

i A a ee ee ee ed

ORDER

For the reasons stated in the accompanying Memorandum

Opinion, it is hereby ORDERED that Defendants’ motion for

summary judgment is GRANTED; and it is FURTHER

ORDERED that Plaintiff's cross-motion for summary

judgment is DENIED; and it is FURTHER ORDERED that

this case is dismissed.

This is a final appealable order.

April 4, 2005 /s/ Judith M. Barzilay

Dated:

JUDITH M. BARZILAY

Judge

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