Veitch v. Winter - Opposition

No. 06-1187

In the Supreme Court of the United States

D. PHILIP VEITCH, PETITIONER

v.

DONALD C. WINTER, SECRETARY OF THE NAVY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
ROBERT M. LOEB
LOWELL V. STURGILL JR.
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals properly dismissed for lack of standing petitioner's constitutional challenge to the conditions of his employment in the United States Navy Chaplaincy Corps and his request for declaratory and injunctive relief, where petitioner had voluntarily resigned from the Navy, the evidence failed to support his claim of constructive discharge, and the Navy acted reasonably in denying his request to withdraw his resignation due to his repeated acts of insubordination.

In the Supreme Court of the United States

No. 06-1187

D. PHILIP VEITCH, PETITIONER

v.

DONALD C. WINTER, SECRETARY OF THE NAVY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1- A23) is reported at 471 F.3d 124. The opinion of the dis trict court (Pet. App. A24-A58) is unreported.

JURISDICTION

The court of appeals entered its judgment on Novem ber 28, 2006. The petition for a writ of certiorari was filed on February 26, 2007. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner, an ordained minister in the Reformed Episcopal Church, joined the Chaplain Corps of the United States Navy in 1987 and served as a commis sioned officer from June 1987 until September 2000. Pet. App. A2, A25. While stationed at the Naval Support

Activity at Naples, Italy, petitioner's immediate supervi sor was Captain Ronald Buchmiller and his commanding officer was Captain John J. Coyne. Id. at A2-A3, A26.

Disagreements developed between Buchmiller and petitioner over petitioner's chaplaincy activities, includ ing his failure to provide chaplaincy services in a man ner that was consistent with the Navy's need to serve individuals from a range of religious backgrounds and his delivery of sermons that were "derogatory toward other faiths." Pet. App. A3. As part of the disagree ment, petitioner sent "rather caustic emails" to his supe rior officer, Captain Buchmiller. Ibid.

Petitioner filed an Equal Employment Opportunity (EEO) complaint alleging that Captain Buchmiller's criticisms of his behavior constituted religious harass ment. The investigating officer, Commander Zoeller, found that petitioner's "allegation of religious discrimi nation was unsubstantiated." Pet. App. A3. Petitioner "concede[d]" that, after November 1998, Buchmiller "neither mentioned" their theological disagreement over a doctrine known as "Sola Scriptura" nor "ever raised problems with any of [petitioner]'s sermons." Id. at A32. Petitioner did not seek further review of the Zoeller Report or its dismissal of his EEO complaint.

In January 1999, petitioner resumed sending im proper emails to Buchmiller and, the next month, an nounced his refusal to "perform any collateral duties that involved working with Captain Buchmiller" or an other Navy chaplain. Pet. App. A33. That same month, petitioner emailed a "four-page broadside attack on Buchmiller's command and character." Id. at A4. Peti tioner conceded that some of his emails to Buchmiller could be considered "disrespectful." Id. at A34. The emails led Captain Coyne to seek non-judicial punish ment in the form of a Captain's Mast, see 10 U.S.C. 815, charging petitioner with "disrespect towards a superior commissioned officer," and demonstrating "marked dis dain, insolence, and contempt" toward a superior, in vio lation of Article 89 of the Uniform Code of Military Jus tice (UCMJ), 10 U.S.C. 889. See Pet. App. A35. Peti tioner was also charged with "failure to go to appointed place of duty" for having missed four staff meetings without justification, in violation of Article 86 of the UCMJ, 10 U.S.C. 886. Pet. App. A4, A35.

After consulting a Navy attorney, petitioner refused nonjudicial punishment. Coyne then pursued the same charges through a court martial. Pet. App. A35. At that point, petitioner chose to resign to avoid the court mar tial. Id. at A4, A35-A36, A49. Coyne then dropped the court-martial charges and issued petitioner a Nonpuni tive Letter of Caution. Id. at A4.

In April 1999, petitioner requested that the Depart ment of Defense Inspector General investigate whether Buchmiller and Coyne had retaliated against him for filing his EEO complaint and probe the circumstances surrounding his resignation. Pet. App. A4. When the Navy Inspector General agreed to investigate the com plaint, petitioner requested permission to withdraw his resignation. The Navy initially denied that request, but then suspended the resignation orders pending comple tion of the Inspector General study. Id. at A4-A5. In May 2000, the Inspector General issued a report that concluded that petitioner's "allegations of reprisal were unsupported," id. at A5, and that petitioner's "disciplin ary problems * * * resulted from his own misconduct," 1 C.A. App. 517. In September 2000, petitioner was sep arated from the Navy. Pet. App. A5.

2. Three months after his separation, petitioner filed suit against the Navy and several of its officers seeking relief for alleged violations of his First Amendment rights to free speech and the free exercise of religion, the Establishment Clause, the Fifth Amendment, and the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq. See Pet. App. A5. The amended complaint seeks a declaratory judgment that the defen dants violated petitioner's constitutional rights, an in junction "voiding or rescinding plaintiff's illegal separa tion," and an order directing the Navy to prevent future alleged religious discrimination in the Chaplaincy Corps. 1 C.A. App. 38-40.1

The district court granted summary judgment for the defendants. Pet. App. A24-A58. The court first held that petitioner failed to establish a basis for his allega tion that he was constructively discharged from the Navy. Id. at A44-A55. The court concluded that peti tioner did not identify "a triable issue of hostile work environment," because he identified no facts that "point to 'intolerable' work conditions that would force a rea sonable person to resign." Id. at A45. The court also found no factual basis for petitioner's allegation that theological differences underlay the disciplinary charges brought against him, noting that the "evidence on the record * * * abundantly shows that" the charges were not based on "doctrinal grounds." Id. at A47. The court explained that "[t]he record shows that Captain Buchmiller criticized [petitioner]'s sermons for deni grating other chaplains and did not instruct or direct [petitioner] to 'preach pluralism' or any other doctrine." Id. at A48.

In addition, the court noted that petitioner "admitted that his decision to resign was motivated by his desire to avoid the court-martial proceeding," and further held that he had two "reasonable alternatives" to resigna tion-the Captain's Mast or the court martial-so that resignation was not the only reasonable course of action left to him. Pet. App. A49-A50.

With respect to the Navy's decision not to permit him to withdraw his resignation, the court held that the Navy's action was not arbitrary, capricious, or otherwise in violation of the law. The court noted that the Navy reasonably withheld action pending the Inspector Gen eral's investigation and denied withdrawal only after that report found that his "disciplinary problems . . . resulted from his own misconduct." Pet. App. A52. The court further noted that the Inspector General's investi gation was fairly conducted, and petitioner did not dem onstrate that the Inspector General's findings "were contrary to law." Id. at A54. Beyond that, the court explained, petitioner had failed to exhaust his adminis trative remedies because he could have sought relief before the Board of Correction of Naval Records and could have applied for correction of his military records pursuant to 10 U.S.C. 1034(f). Pet. App. A54 n.13.

Finally, the court held that, because petitioner's res ignation was voluntary, petitioner lacked standing to seek declaratory and injunctive relief against the Navy's practices and policies within the chaplaincy program. Noting that petitioner "is no longer in the Navy because of his voluntary resignation," the district court held that petitioner "is not facing any 'real and immediate' injury as the result of the challenged official conduct." Pet. App. A56 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)).

3. The court of appeals affirmed. Pet. App. A1-A23. Assuming without deciding the existence of a cause of action for constructive discharge from the military, id. at A6-A7, the court of appeals affirmed the district court's conclusion that petitioner had failed to adduce facts to support his constructive discharge claim. With respect to his reliance on Commander Zoeller's report dismissing petitioner's EEO complaint, the court noted that the report "in no sense punished or threatened him; it simply rejected his [EEO] Complaint," id. at A8, and that it could "hardly be claimed that the Zoeller Report left [petitioner] with no practical alternative but resigna tion," id. at A9. Moreover, the court noted, petitioner "could have appealed the results of Zoeller's investiga tion, but chose not to do so." Ibid.

With respect to petitioner's argument that the court- martial charges compelled his resignation, the court ex plained that "[a] court-martialed serviceman or woman has a congressionally enacted process of military ap peals by which to contest allegedly unlawful charges," but petitioner "neglected to exhaust [those] military court remedies." Pet. App. A10. The court likewise re jected petitioner's assertion of a hostile work environ ment, agreeing with the district court that, "viewing the record in the light most favorable to [petitioner], his claims fail to make out a hostile work environment as a matter of law." Id. at A12. The court held, in particular, that petitioner failed to allege conduct "sufficiently 'se vere and pervasive' to create an aggravated work envi ronment in which an employee had no choice but to re sign." Id. at A14.

Finally, the court of appeals agreed with the district court that the record provides "no grounds to conclude that the Navy acted unreasonably in refusing [peti tioner's] withdrawal request" and, instead, establishes that petitioner's "disciplinary troubles were the result of his own misconduct." Pet. App. A16. Because the re cord established that he resigned voluntarily, the court held that petitioner lacked standing to pursue his consti tutional challenges to the Navy's chaplaincy program. Id. at A15.

Judge Rogers concurred. Pet. App. A17-A23. She agreed that, having voluntarily resigned from the Navy, petitioner lacked standing to bring his claim for rein statement or his equitable claims regarding the condi tions of his former employment. Id. at A17. She also explained that petitioner failed to prove either that the employment discrimination he alleges "required him to be disrespectful in violation of the Uniform Code of Mili tary Justice," or that "the Captain's Mast or court-mar tial proceedings would have been so unfair so as to force his resignation." Id. at A21.

ARGUMENT

The decision of the court of appeals is correct and does not conflict with any decision of this Court or of another court of appeals. Petitioner's claims of retalia tory discharge and religious discrimination are fact- bound and have been rebuffed at every level of adminis trative and judicial review. They do not warrant further review in this Court.

Petitioner contends (Pet. 10-16) that this Court should grant review because the Navy purportedly en gaged in "gross governmental misconduct" in allegedly requiring that he "preach pluralism." Pet. 11. That con tention does not merit review for at least four reasons.

First, as the court of appeals held (Pet. App. A15), petitioner lacks standing to challenge the Navy's chap laincy policies because he voluntarily resigned from the Navy and is not part of the chaplaincy program. "[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 ad verse effects." City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (quotation marks and citation omitted). The Court accordingly lacks jurisdiction to review the policies that petitioner challenges.

Second, petitioner failed to exhaust his administra tive remedies. Pet. App. A10, A54 n.13. Petitioner could have raised each of his claims concerning the conditions of his employment with the Navy as a defense in his Cap tain's Mast or court-martial proceeding. See Manual for Courts-Martial, United States ¶ 13.c.(5) (2005 ed.) ("A superior commissioned officer whose conduct in re lation to the accused under all the circumstances de parts substantially from the required standards appro priate to that officer's rank or position under similar circumstances loses the protection of this article. That accused may not be convicted of being disrespectful to the officer who has so lost the entitlement to respect protected by Article 89."). Furthermore, if convicted, petitioner could have sought review by the court-mar tial's convening authority and, following that, by the Navy Judge Advocate General. See 10 U.S.C. 859-867. In addition, in cases involving dismissal or discharge, a service member 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. Ibid.2

Allowing petitioner's claim to go forward would cir cumvent the administrative appeals process that Con gress specifically designed for the resolution of employ ment disputes within the military. See Pet. App. A10- A11; cf. Parisi v. Davidson, 405 U.S. 34, 41-42 (1972) (exhaustion requirement applies to courts-martial when the accused could gain complete relief before such tribu nals).

Third, the alleged misconduct had nothing to do with petitioner's voluntary resignation. As the district court explained:

The record shows that Captain Buchmiller criticized [petitioner]'s sermons for denigrating other chap lains and did not instruct or direct [petitioner] to "preach pluralism" or any other doctrine. In fact, this inept phrase appeared in the fitness report com pleted by Captain Coyne after he learned about the e-mail correspondence between [petitioner] and Cap tain Buchmiller and decided that [petitioner] should be disciplined for his disrespectful demeanor.

Pet. App. A48.

The district court, the court of appeals, and the Navy Inspector General have all concluded that petitioner failed to provide any sound factual basis for his allega tions that the disciplinary proceedings directed against him were the product of theological discrimination or improper retaliation. Each has independently deter mined that the record clearly establishes that peti tioner's disciplinary problems were the result of his own inappropriate and disrespectful conduct toward a supe rior officer. Pet. App. A5, A14-A15, A21, A48. There is no reason for this Court to revisit, much less upset, those unassailable and fact-bound determinations.3

Fourth, petitioner's claims of unconstitutional con duct are fact-specific and record-bound and thus do not present any question that merits this Court's exercise of its certiorari jurisdiction. There is no conflict in the cir cuits on the standing, exhaustion, or constructive dis charge claims that petitioner asserts. Quite the oppo site, the Ninth Circuit recently dismissed a similar case on the ground that a plaintiff who had left the Navy "has no standing to pursue his claims that involve generalized critiques of the Navy's management of the Chaplain Corps." Wilkins v. United States, No. 05-56109, 2007 WL 1455012, at *1 (May 18, 2007).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
ROBERT M. LOEB
LOWELL V. STURGILL JR.
Attorneys

JUNE 2007

1 The amended complaint did not include any claim for money damages, beyond a claim for back pay, which has since been resolved and is no longer at issue in the case. See Pet. App. A38.

2 Decisions of the Court of Appeals for the Armed Forces can be reviewed by this Court. 28 U.S.C. 1259.

3 In any event, the Navy's policies fully comport with the Constitu tion. The Chaplains Manual makes clear that a chaplain is free to preach the tenets of his or her faith, but must treat other chaplains and military personnel with "mutual respect" and a spirit of "cooper[ation]," given the unique demands of Navy service. See U.S. Navy, Chaplains Manual § 1202(5); 2 C.A. App. 721.

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 have evolved jointly a pattern of coopera tive ministry. The principle of cooperative ministry places on every chaplain the obligation to:

a. Make provision for meeting the religious needs of those in 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.

Chaplain's Manual, supra, § 1202(5); see Katcoff v. Marsh, 755 F.2d 223, 226 (2d Cir. 1985) (explaining that, because of the unique demands of military service, military chaplains must function in a "pluralistic military community").