i

QUESTIONS PRESENTED FOR REVIEW

Furniss Harkness, a Navy Reserve chaplain, challenged Navy Chaplain Corps (“CHC”) promotion denominational preferences and retaliation. Chaplains are religious leaders commissioned to provide religious ministry to the Navy as denominational representatives. Respondent has no objective measurement standards for ministry, a uniquely religious term. Chaplains have no authority to act as the Sovereign’s agent yet Respondent allows chaplain promotion board members to use the Sovereign’s power to secretly destroy other chaplains’ careers. Three questions are presented for review:

1. Harkness claimed the CHC retaliated against him for exercising his First Amendment rights by joining a lawsuit challenging CHC religious preferences. Harkness appealed the district court’s holding Orloff v. Willoughby, 345 U.S. 83 (1953) denied it jurisdiction over his retaliation claim. The Sixth Circuit did not overrule the district court but dismissed Harkness’s claim for lacking sufficient details, adopting Respondent’s prior claim the district court had rejected. Respondent did not cross- appeal that ruling or raise the issue in the appeal.

The question for review is did the Sixth Circuit’s dismissal of Harkness’s claim offend the Supremacy Clause; the First and Fifth Amendments; and the Judiciary’s duty under Article III when it ii dismissed Harkness’s retaliation claim relying on (a) a case not addressing constitutional issues; (b) adopting Respondent’s rejected argument which he did not cross-appeal; and (c) ignoring Fed. R. Civ. P 12(b)(1) precedent in reviewing a motion to dismiss.

2. The Sixth Circuit dismissed Harkness’s statistics because they were “too old” and missed confounding factors the Sixth Circuit speculated would have made a difference, factors neither party’s expert considered because the military promotion system considers them before announcing candidates who qualify for consideration.

The question for review is did the Sixth Circuit violate Harkness’s right to petition for redress by: (a) ignoring precedent holding prior evidence of discriminatory practice is relevant in cases like this; (b) using speculative confounding factors to disregard statistics in an area where courts have no expertise without showing they made a difference in the statistical results; and (c) not requiring Respondent to present evidence supporting his claim Harkness’s statistics were deficient.

3. Chaplain promotion boards promote chaplains when board members anonymously score each candidate’s record of “ministry.” The Navy’s “blackball” voting machine allows 5 choices: 0, 25, 50, 75 and 100. The Naval Inspector General (“NIG”) found a “0" vote guarantees a candidate’s non- iii selection, destroying his/her career. Candidates sharing a denomination with a board president or member have statistically significant higher promotion rates than chaplains who do not.

The question presented for review is did the Sixth Circuit fail to properly review Harkness’s Establishment and Due Process Clause claims by (a) ignoring evidence of 38 years of denominational preferences; (b) rejecting statistical significance as evidence of denominational non-neutrality in promotion decisions; (c) limiting its review to the administrative record; (d) ignoring the obvious fusion of civic and religious power through Respondent’s chaplain “blackball” promotion procedures; and (e) not recognizing the procedures are unconstitutional on their face. iv

PARTIES TO THE PROCEEDING

Furniss Harkness is the Petitioner here and was the appellant and plaintiff in the case and courts below.

Respondent is the Secretary of Navy and was the appellee and defendant. He is sued in his official capacity.

CORPORATE DISCLOSURE STATEMENTS

1. Petitioner is a private citizen and not a corporation.

2. Respondent is the Secretary of Navy, in his official capacity. v

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...... i

PARTIES TO THE PROCEEDING...... iv

CORPORATE DISCLOSURE STATEMENTS . . . . iv

TABLE OF CONTENTS ...... v

TABLE OF AUTHORITIES ...... ix

GLOSSARY AND ABBREVIATIONS...... xiv

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

OPINIONS BELOW...... 1

JURISDICTION...... 1

CONSTITUTIONAL PROVISIONS ...... 2

STATUTORY AND REGULATORY PROVISIONS. 2

INTRODUCTION...... 3

STATEMENT OF THE CASE ...... 8

A. Factual Background ...... 8

B. Promotions ...... 11 vi

C. Proceedings Below ...... 15

REASONS FOR GRANTING THE PETITION . . . 19

I. Dismissing Harkness’s Retaliation Claim Violated His First Amendment and Due Process Rights ...... 19

A. Orloff Does Not Bar Jurisdiction over Constitutional Claims ...... 22

B. This Decision Violates the Cross-Appeal Rule ...... 23

II. Dismissing Harkness’s Statistics as “Too Old” and Missing Speculative Factors Raises Constitutional Issues...... 24

A. Precedent Holds “Old” Statistics Can Be Relevant in Discrimination Cases . . . 25

B. Dismissing Statistics Based on Speculative Factors Respondent Has Not Legitimately Raised Violates the Principle and Rule ...... 26

III. The Sixth Circuit Did Not Properly Review Harkness’s Establishment and Due Process Claims ...... 31 vii

A. Harkness’s Statistics Demonstrate the Procedures Produced Denominational Preferences for 38 Years...... 33

B. The Circuit’s Rejection of Statistical Significance as a Meaningful Measure of Non-neutrality Is a Corrosive Precedent...... 34

C. Limiting Review of Harkness’s Establishment Claims Conflicts with the Judiciary’s Duties to Carefully Examine Establishment Claims . . . . 37

1. The Judiciary’s duty is to interpret and enforce the Constitution ...... 37

2. Establishment claims require detailed judicial examination . 39

3. Courts cannot ignore identified investigations showing Establishment violations . . . . 39

4. The duty to thoroughly review establishment claims overrides administrative record review limitations ...... 41 viii

D. Respondent’s Chaplain Blackball Promotion Procedures Fuse Civic and Religious Power ...... 45

E. The Challenged Procedures Are Facially Unconstitutional ...... 48

CONCLUSION...... 50 ix

TABLE OF AUTHORITIES

FEDERAL CASES:

Barghout v. Bureau of Kosher Meat and Food Control, 66 F.3d 1337 (4th Cir. 1995)...... 47

Bazemore v. Friday, 478 U.S. 385 (1986) ...... 25-27, 31

Bd. of Ed. of Kiryas Joel v. Grumet, 512 U.S. 687 (1994) ...... 5, 6, 18, 31, 45-46

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

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

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

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

City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988) ...... 49

Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) ...... 39, 49

Commack Self-Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415 (2d Cir. 2002), cert denied, 537 U.S. 1187 (2003) ...... 47-48 x

Committee for Public Education v. Nyquist, 413 U.S. 756 (1973) ...... 7, 37, 39, 47

Coolidge v. New Hampshire, 403 U.S. 443 (1971) 38

County of Allegheny v. ACLU, 492 U.S. 573 (1989) ...... 7, 17, 36

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

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

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) ...... 38

Emory v. Secretary of Navy, 819 F.2d 291 (D.C. Cir.1987)...... 21

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

Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123 (1992) ...... 42, 43

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

Grendel's Den, Inc. v. Goodwin, 662 F.2d 102 (1st Cir. 1981), aff’d sub nom, Larkin v. Grendel’s Den Inc., 459 U.S. 116 (1982) ...... 47

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

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

Harkness v. Secretary, 2:13-cv-3003 (W.D. Tenn. 2/24/15)...... 15

Harkness v. Secretary, 174 F.Supp.3d 990 (W.D. Tenn. 2016), aff’d, 858 F.3d 437 (6th Cir. 2017)...... 1

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

Harkness v. U.S., 727 F.3d 465 (6th Cir. 2013) ...... 5, 8, 9, 41

Hazelwood School District v. U.S., 433 U.S. (1977) ...... 25, 26

In re Navy Chaplaincy, 738 F.3d 425 (D.C. Cir. 2013), cert denied, 135 S.Ct. 86 (2014) . . . . . 28

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

Larkin v. Grendel’s Den Inc., 459 U.S. 116 (1982) ...... 5, 6, 18, 31, 45, 46

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

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

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

Mendez v. Seaman, 453 F.2d 197 (5th Cir. 1971) ...... 16, 20, 23

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

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

Palmer v. Shultz, 815 F.2d 84 (D.C. Cir. 1987) ...... 26, 28, 35

Phillips v. Cohen, 400 F.3d 388 (6th Cir. 2005)...... 25, 27, 28, 31

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

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

United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) ...... 26

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

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

Watson v. Fort Worth Bank & Tr., 487 U.S. 977 (1988) ...... 29

W.Va. State Board of Ed. v. Barnette, 319 U.S. 624 (1943) ...... 4 xiii

FEDERAL STATUTES

10 U.S.C. § 612 ...... 12

10 U.S.C. § 615 ...... 12

10 U.S.C. § 14502 ...... 2, 41, 44

10 U.S.C. § 14502(b)...... 17

28 U.S.C. § 1254(1)...... 1

28 U.S.C. § 1331 ...... 1

MISC

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

Naval Personnel Command 2014 Active Officer Promotion Brief ...... 12, 25, 32, 41 xiv

GLOSSARY AND ABBREVIATIONS

CAPT Captain

CHC The Navy Chaplain Corps

Chief The Navy Chief of Chaplains

CDR Commander

Deputy The Navy Deputy Chief of chaplains

Fitness Report Navy official form used to evaluate an officer’s performance of duties that becomes part of the officer’s record and the basis for promotions

SSB Special Selection Board, a statutory board to provide relief for victims of promotion board errors, misconduct or injustice 1

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully petitions this Court for a writ of certiorari to review the United States Court of Appeals for the Sixth Circuit’s judgment in this case.

OPINIONS BELOW

The U.S. Court of Appeals for the Sixth Circuit’s May 31, 2017, decision denying petitioner’s appeal, the “Decision”, is reported at 858 F.3d 437 (6th Cir. 2017) and set forth in the Appendix at 1a- 36a. The Sixth Circuit’s August 17, 2017, order denying petitioner’s en banc petition is unreported but set forth at Pet.App.41a-42a. The district court’s decision granting respondent’s summary judgment motion and denying petitioner’s summary judgment motion is reported at 174 F.Supp.3d 990 (W.D. Tenn. 2016) and set forth in the Appendix at 1b-63b. The courts had jurisdiction under 28 U.S. § 1331.

JURISDICTION

The Sixth Circuit entered its judgment May 31, 2017, granted petitioner a one-week extension to file his en banc petition, Pet.App.30a and denied petitioners’ request for rehearing en banc August 17, 2017, Pet.App.32a. On October 20, 2017, Justice Kagan, extended petitioner’s time to file a petition for writ of certiorari to and including December 29, 2

2017, as set forth at Pet.App.34a-35a. 28 U.S.C. §1254(1) provides the Court jurisdiction.

CONSTITUTIONAL PROVISIONS

The relevant portions of the Constitution’s Article V Supremacy Clause and its First and Fifth Amendments are set forth in the Appendix at 1c.

STATUTORY AND REGULATORY PROVISIONS

The relevant portions of 10 U.S.C. § 14502 are set forth in the Appendix at 1c-3c.

The relevant portions of Respondent’s regulations are set forth in the Appendix at 1d-5d. 3

INTRODUCTION

This petition presents three exceptional questions that have grave and extraordinary implications for the fundamental rights of all military personnel. Petitioner, Chaplain Furniss Harkness asks this Court to address exceptionally wrong decisions by the courts below that impact all military personnel.

Harkness seeks this Court’s intervention to reestablish the Constitution as the supreme law for “rulers and people, equally in war and in peace” so the “shield of its protection [for] all classes of men, at all times, and under all circumstances”, Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), covers military personnel.

Harkness raises critical constitutional questions whether formerly well-established precedent implementing a foundational constitutional rule and a long-established legal principle continue as binding precedents. Here, the lower courts ignored them addressing the Establishment and Right to Petition Clauses’ neutrality mandates.

First is the continued authority of the First Amendment rule (hereafter the “Rule”): government cannot “ma[k]e enjoyment of the freedom which the Constitution guarantees contingent upon the 4 uncontrolled will of administrative officers.” Jones v. City of Opelika, 316 U.S. 584, 599–600 (1943) (citation omitted).

Specifically, does the Rule prohibit Respondent’s delegation to senior denominational- representatives1 unbridled power to retaliate for challenging denominational preferences and to veto junior chaplains’ promotions.

The Bill of Rights purpose “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” W.Va. State Board of Education v. Barnette, 319 U.S. 624, 638 (1943). The Bill of Rights established the Rule as a bulwark against arbitrary government power over citizens’ rights. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion ....”, id. at 648.

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

1 “Denominational-representative” is hyphenized to emphasize this fact: chaplains’ identity as officers is their unique role as representatives and agents of a denomination; their duty limitations because of their religious nature show that role is inseparable from their identity as naval officers. 5

(1940) applied the Rule in a religious liberty context. Bd. of Ed. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 697-99 (1994), and Larkin v. Grendel’s Den Inc., 459 U.S. 116, 123-125 (1982) applied the Rule in the special context of the Establishment Clauses’s mandate of government’s religious neutrality when persons or organizations defined by their religious identity are delegated discretionary civic power.

The second issue is the “principle of party presentation” (the “Principle”) and its corollary “cross-appeal rule.” Greenlaw v. U.S., 554 U.S. 237, 243 (2008). These protect litigants’ Right to Petition and Due Process. Id.

The Sixth Circuit’s decision undermines both the Rule and the Principle establishing new precedent authorizing lower courts to ignore the Rule, the Principle and their precedents. This is judicial anarchy. See Olmstead v. U.S., 277 U.S. 438, 485 (1928) (Brandeis, J., Dissenting) (“Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy”).

Petitioner Furniss Harkness is a Naval Reserve chaplain “with a long history of advocating for reform,” Harkness v. U.S., 727 F.3d 465, 468 (6th Cir. 2013) (“Harkness-I”). Chaplain Harkness appeals the Sixth Circuit’s rejection of the Rule and 6

Principle in approving Respondent’s retaliation against him for challenging CHC promotion procedures and dismissing that challenge despite two acknowledged facts. First, each chaplain is commissioned to serve as a specific religious community’s denominational-representative, id. (citation omitted), to which he/she remains accountable for ministry, the religious duty for which he/she was hired. Second, the CHC’s unique “blackball” promotion procedure delegates to these denominational-representatives unbridled civic authority to secretly and arbitrarily destroy a promotion candidate’s career.

This delegation occurs in Respondent’s promotion system where: ! board proceedings, the candidates’ official personnel records and fitness reports are protected from disclosure; ! there are no quantifiable, objective standards for ministry, each chaplain’s duty; and ! no effective guarantees, systematic checks, or monitoring procedures ensure religious factors don’t influence promotions.

Inspector General (“IG”) investigations show denomination has influenced promotions; this will continue absent judicial intervention. Whether Respondent’s procedures violate the First Amendment should be an easy question of law given the Rule, Grumet, and Larkin. 7

Harkness’s statistics, including Respondent’s Center for Naval Analysis (“CNA”) promotion study, show Respondent’s “blackball” procedures, unchanged for over 38 years, allow chaplain board members’ denominations to influence chaplain promotions, creating denominational preferences. This is reflected in denominational promotion hierarchies with distinct, statistically significant promotion rates depending upon a denomination’s place in the hierarchy. This unconstitutionally makes denomination more important to a chaplain’s standing in the military community than the chaplain’s record. See County of Allegheny v. ACLU, 492 U.S. 573, 594 (1989).

The Sixth Circuit’s decision, affirming the district court, obscured/ignored critical facts and rejected precedent addressing: statistics-evaluation; fusing government and religious power; and the Establishment Clause’s mandate to examine challenged practices for subtle violations of religious neutrality. The Circuit ignored its duty to carefully examine any practice “challenged on establishment grounds with a view to ascertaining whether [the practice] furthers any of the evils against which that Clause protects.” Committee for Public Education v. Nyquist, 413 U.S. 756, 794 (1973); accord Gillette v. U.S., 401 U.S. 437, 452 (1971).

This decision assaults two precedents. First, the Constitution is the nation’s supreme law, 8 protecting every citizen, including military personnel. Second, a court cannot use unsupported speculation to reject statistics in areas where courts have no expertise.

Correcting this decision is vitally important. Its words are contrary to this Court’s and other circuits’ precedent on important issues of addressing the military community’s fundamental rights. Uncorrected, the Sixth Circuit’s decision sends chilling, hostile messages to a unique but important community with unquestioned importance to America’s security.

This is not "just" one minority creed chaplain’s minor dispute. His case is now precedent, allowing lower courts to abuse their discretion and avoid their duty to enforce the Constitution’s protections for a small but important community infrequently in the courts.

STATEMENT OF THE CASE

A. Factual Background

Harkness, now retired, joined 16 other Non- liturgical chaplains in 2000 to legally challenge Navy denominational prejudice against Non-liturgical chaplains. Harkness-I, 727 F.3d at 468. That case is now styled In re Navy Chaplaincy (“Chaplaincy”) in 9 the D.C. District Court.

The fiscal year (“FY”) 2007 Reserve Chaplain Captain (“CAPT”) Selection Board (the “07Board”) denied Harkness promotion. He requested a Special Selection Board (“SSB”) because the 07Board failed to meet Respondent’s Reserve officer requirement, which Respondent denied. Harkness filed suit in Memphis, Tennessee. Harkness-I, 727 F.3d at 468. The court dismissed Harkness’s constitutional challenges for failure to exhaust administrative remedies, which Harkness-I affirmed. Id. at 466. Respondent granted an SSB, mooting the case.

That SSB denied Harkness promotion. Harkness requested a second, denominationally neutral SSB, challenging the Board’s composition and its procedures’ constitutionality, claiming they lacked “effective guarantees” preventing the unbridled power delegated to denominational- representatives board members from religiously influencing decisions. Pet.App.1e-2e. The procedures included: small number of board members voting secretly using a blackball/blackbox voting machine, the Chief or Deputy as board president, and board members briefing candidates’ records. Pet.App.4e. Harkness cited CHC board investigations exposing denominational preferences, board misconduct and board presidents’ influence. Id.

Harkness then requested an SSB for the FY 10

2014 CAPT board challenging its board procedures’ constitutionality and chaplain board member CAPT William Wildhack’s eligibility. Regulations barred detailers from board membership. Wildhack functioned as the Reserve CHC detailer; was hostile to Harkness; and the other chaplain, RADM Horn, shared Wildhack’s denomination, neither was a non- liturgical. Pet.App.8e-9e. Harkness’s SSB request provided two statistical studies, Pet.App.9e (extracts).

1: Dr. Leuba’s Statistical Evidence of the Navy’s Religious Preferences (“Preferences”) analyzed the Chief s’ impact on promotions as CHC board presidents. Pet.App.1g-16g (extracts). Preferences found: “More than 80% of the uncertainty in whether one will be promoted or not can be explained by the correlation (similarity) between the religious beliefs among the Promotion Board members and the candidate’s denomination!” Pet.App.5g, ¶ 2.19.11.2. Promotion rates for CDR and CAPT candidates who “matched” or shared the Chief’s denomination were statistically significantly higher than for candidates who did not share the Chief’s denomination; for CAPT, 78.5% versus 50.45%. Pet.App.8g-9g, Table. 9, ¶¶ 2.20.5 and 2.20.5.1;

2: Dr. Leuba’s 38 Years of Denominationalism (“Denominationalism”), Pet.App.17g-25g (extracts), examined four denominationally different data-sets for Chiefs: (a) Catholic (“RC”); (b) Southern Baptist 11

(“SB”); (c) all other denominations which “Have-Had- a-Chief” (“CoC”-four large Liturgical and three small denominations with few chaplains), and (d) all denominations which “Have-Never-Had-a-Chief”.

Denominationalism measured actual rank increases for each denominational grouping based on active duty chaplain lists for the time period a Chief was in office, demonstrating the Chiefs’ 1974 to 2013 promotion impact. The CHC promotion rates by rank differences for the four groupings for 38 years are statistically significantly different. Pet.App.20g.

Respondent denied Harkness’s SSB requests. Harkness then sued alleging: the challenged procedures were unconstitutional and violated the Religious Freedom Restoration Act; Respondent’s SSB denials were arbitrary and capricious; and the CHC retaliated against him for exercising his First Amendment Rights. Pet.App.4b-7b.

B. Promotions

Respondent assigns each chaplain an “additional qualification designator”, a code identifying that chaplain’s denomination as his/her special skill. Chaplain promotions reward past ministry reflected in fitness reports, see Glossary. Board members discern the probability of ministry effectiveness at the next rank. Respondent has no objective standards for evaluating “ministry”, a 12 religious term whose parameters differ among denominations.

Promotion boards require at least five officers, one from the category under consideration, if available. 10 U.S.C. § 612. 10 U.S.C. § 615(a)(4) requires Respondent provide board members “information or guidelines relating to the needs of the armed force concerned for officers having particular skills”. No precept or convening order has described the Navy’s specific chaplain “needs” or “skill sets” by rank in detail or in general.

Naval Personnel Command 2014 Active Officer Promotion Brief (“Prom.Brief”) describes the challenged promotion board procedures which the Reserves also use. www.amdo.org/Active_Officer_Promotion_Brief_(Rev _2014).pdf

The Army and Air Force use large boards, 18- 25 members, who individually evaluate each record and vote in a system that records each member’s vote for each candidate, providing board member accountability. Curtis v. Peters, 107 F.Supp.2d 1, 3 (D.D.C. 2000) (describing Air Force “selection board of 25 members” on five panels whose members “reviewed each file and individually scored each candidate on a scale of 6 to 10”); Ward v. Caldera, 138 F.Supp.2d 1, 3 (D.D.C. 2001) (Army boards required 18 members). 13

Navy Chaplain promotion boards are small, normally six to seven members, including the Chief or Deputy. Board members are sworn to make judgments on the basis of what they understand to be the Navy’s best interests for officers “possessing particular skills.” Votes are secret and unrecorded. 10 U.S.C. § 613a protects promotion board proceedings from disclosure absent Respondent’s approval. The Privacy Act and Navy regulations protect each chaplain’s record, limiting objective comparisons of chaplains’ records.

The NIG FY 2000 Chaplain CAPT Board investigation substantiated CDR Washburn’s allegation the female chaplain board member “zeroed out” Washburn’s promotion to CAPT for theological reasons. RADM Black, the Chief, explained a board member can anonymously vote “zero” in a “preemptive strike”, guaranteeing promotion denial. Pet.App.3f (shaded in original exhibit). Washburn “had served on approximately six selection boards ... seen the [zeroing out] process and how it could be perverted if someone wanted because of the vehicle of secret voting.” Washburn NIG testimony, Pet.App.9f. Preferences cites the Washburn NIG and shows how “zeroing out” works, Pet.App.12g-15g. Respondent has never denied zeroing out occurs, destroying chaplains’ careers.

Harkness presented the district court evidence of denominational favoritism, prejudice and 14 misconduct before and after the CHC litigation began in 1999-2000.

Before: two chaplain CHC statistical promotion studies, the Center for Naval Analysis (“CNA”)’s March 2000 Promotion Report Respondent ordered, and NIG and DODIG FY 97 and 98 Commander boards investigations.

After: the Chaplaincy Plaintiffs’ and Harkness’s CHC statistical promotion studies, including the effect of reducing chaplain board members; NIG reports; and sworn personal anecdotes.

Inspectors General (“IG”) investigated four Chaplain Promotion boards, FYs 1997, 1998, 2000, and 2009. Each found misconduct from denominational influences, e.g, RADM Holderby admitted the FY 97 commander board selected for denominational considerations a Catholic with a poor record over a Baptist with a great record. Harkness’s SSB requests and Dr. Leuba’s analysis referenced these investigations. The discrimination victims initiated all IG investigations finding board misconduct/denominational influence, not board members, recorders (responsible for keeping the board fair), or those reviewing board reports.

Respondent must administratively review promotion board decisions to ensure the board chose its authorized number and no discipline or 15 administrative actions disqualified a selectee. No procedure detects or monitors promotion board discrimination or denominational preferences.

C. Proceedings Below

Harkness filed suit challenging Respondent’s promotion procedures’ constitutionality, his SSBs denial and claiming retaliation for exercising his First Amendment rights. Respondent moved to dismiss for failure to state a claim and lack of subject matter jurisdiction. The district court (1) dismissed Harkness’s RFRA claim and his 07Board challenge which the SSB mooted but (2) denied Respondent’s other claims. Harkness v. Secretary, 2:13-cv-3003, ECF 28 (W.D. Tenn 2/24/15) (“Harkness-MTD”).

Harkness-MTD rejected the Secretary’s argument Harkness’s retaliation claim lacked facts sufficient to state a claim, finding it met the Sixth Circuit’s standard for an unconstitutional retaliation claim. Harkness-MTD Extract at Pet.App.66b (“The Court disagrees” with Respondent’s argument)-67b.

Both parties then filed summary judgment motions. Respondent argued Orloff v. Willoughby, 345 U.S. 83, 92-93 (1953) denied the court jurisdiction over Harkness’s retaliation claim because it involved a personnel decision. Harkness argued Orloff did not apply to constitutional claims. 16

The district court granted Respondent’s motion based on the administrative record, Pet.App.6b, 7b, 14b, 19b, 29b. It held: (1) Orloff barred Harkness’s retaliation claim because the retaliation was restrictions or denial of duty assignments (diminishing his competitiveness) to which he had been selected, Pet.App.10b-12b; (2) denied Harkness’s discovery motion, Pet.App.14b- 28b; (3) found Harkness’s statistics were old and failed to consider missing factors the court thought important, Pet.App.51b-54b; (4) recognized the board members’ oath did not effectively guarantee religious neutrality, but held Respondent’s blackball selection procedures presented no Establishment violations, Pet.App.42b; and (5) Respondent’s refusal to grant SSB’s was appropriate, Pet.App.34b-61b.

Harkness’s appeal argued the decision violated Sixth Circuit and Supreme Court precedent. Respondent did not cross-appeal the validity of Harkness’s retaliation claim. Harkness-II affirmed the district court’s findings.

The Sixth Circuit first addressed Harkness’s challenge to the lower court’s holding Orloff made his retaliation claim nonjusticiable. Recognizing that “some military personnel decisions are indeed reviewable”, Pet.App.8a, the Circuit suggested duty assignments were not but dismissed Harkness’s retaliation claim under Mendez v. Seaman, 453 F.2d 197 (5th Cir. 1971)’s justiciability test. The Circuit 17 found his retaliation claim lacked specific details, Pet.App.9a-11a; courts should not review military “duty assignments”, Pet.App.12a; Harkness’s injury was minimal with no available remedy, Pet.App.11a; and therefore non-justiciable. Id.

The Circuit found Respondent had no “statutory authority to convene a second SSB to review the actions of the 2012 SSB because § 14502(b) authorized SSBs only for challenges to “mandatory promotion boards, not SSBs. Pet.App.14a. Harkness’s failure to present Respondent his claim CAPT Wildhack’s “duties related to officer community management” precluded board membership rather than alleging he was a “detailer” failed exhaustion of remedies, denying the court jurisdiction. Pet.App.15a.

The Circuit rejected strict scrutiny of the challenged practices denying application of County of Allegheny, 492 U.S. at 608-09 (1979) (“We have expressly required ‘strict scrutiny’ of practices suggesting ‘a denominational preference’” (emphasis added) (citation omitted)) as inconsistent with this Court’s and its own precedent. Pet.App.17a. It applied Lemon v. Kurtzman’s three-part test, 403 U.S. 602, 612-13 (1971), because the promotion statute did not distinguish between denominations on its face. Pet.App.17a-18a. The Circuit concluded the “reasonable observer reviewing these procedures–with knowledge of their text, history and 18 implementation–would not ... infer governmental endorsement of religion.” Pet.App.20a.

The Circuit then rejected Harkness’s statistics showing the procedures produced denominational preferences. It found them “too old” and speculated the reduced chaplain board memberships (after the chaplain litigation began) mitigated any denominational preferences. Pet.App.21a-22a. The Circuit held “even if Harkness’s data was statistically significant, that means only that the disparity in promotion decisions was not due to chance”, and Harkness “failed to control for other confounding factors–promotion ratings, education or leadership skills.” Pet.App.22a (citation omitted). The Circuit found Harkness had not presented Respondent other evidence of discrimination. Pet.App.23a.

The Circuit rejected Larkin and Grumet as controlling authority because Respondent “articulated secular, neutral standards ... in evaluating candidates for promotion”; cited the oath and regulations; and found effective measures ensuring religious neutrality because “the two chaplains on the board share decision-making authority with five others” and results were subject to further review. Pet.App.25a (citations omitted). That chaplains were denominational representatives was not a problem to the Circuit because chaplains served on boards as officers, “evaluating the secular 19 qualifications of their fellow officers”, not denominational-representatives. Pet.App.26a.

Without a constitutional infirmity, Respondent’s denial of Harkness’s 2013 SSB was lawful, Pet.App.26a, and discovery was not appropriate. Pet.App.28a-29a.

REASONS FOR GRANTING THE PETITION

I. Dismissing Harkness’s Retaliation Claim Violated His First Amendment and Due Process Rights

The Sixth Circuit’s holding the Constitution did not protect Harkness’s exercise of his First Amendment from Respondent’s retaliation, Pet.App.9a-12a, is grave constitutional error affecting all military personnel. In effect, the Sixth Circuit has denied or excessively chilled the right for every military person to lawfully petition for redress of wrongs and object to unlawful violations of their constitutional rights. This deprivation comes without any notice, opportunity to object, or presentation of a compelling government purpose which courts can evaluate against the interests of those affected by this deprivation.

The ordinary mechanism that we use for balancing such serious competing 20

interests, and for determining the procedures that are necessary to ensure that a citizen is not “deprived of life, liberty, or property, without due process of law,” U.S. Const., Amdt. 5, is the test that we articulated in Mathews v. Eldridge, 424 U.S. 319 (1976)

Hamdi v. Rumsfeld, 542 U.S. 507, 528–29 (2004). Under Matthews, the government must present its lawful reasons for depriving or limiting the right involved. Id. at 529. Respondent cannot meet this test: retaliation cannot be a legitimate government objective or concern, particularly given it is unlawful.

Respondent has not identified where Naval personnel are told they may be retaliated against through the use of duty assignments if they blow the whistle on corruption or seek to challenge policies that violate the Constitution or law. The Circuit’s holding is an egregious and extraordinary deprivation of the rights of service personnel for no apparent reason.

Harkness appealed the district court’s holding Orloff v. Willoughby, 345 U.S. 83 (1953) barred Harkness’s retaliation claim. The Circuit did not reverse the district court’s holding Orloff barred judicial review of unconstitutional duty assignments. It found Harkness’s lack of detail failed Mendez’s test for justiciability, Pet.App.8a-11a, violating the Cross- 21

Appeal Rule and Principal as shown below.

This holding, Respondent may violate the Constitution and retaliate against Harkness for exercising his First Amendment rights, is outrageous and unprecedented. The Constitution protects all citizens from retaliation for exercising their right to petition and challenge constitutional violations. Ex Parte Milligan, 71 U.S. (4 Wall.) at 120. The Circuit created an unconstitutional exception for military personnel, despite laws prohibiting retaliation, denying Harkness’s right to protest.

“This Court has never held ... military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service.” Chappell v. Wallace, 462 U.S. 296, 304 (1983). “The military has not been exempted from constitutional provisions that protect the rights of individuals.” Emory v. Secretary of Navy, 819 F.2d 291, 294 (D.C. Cir.1987) (courts review allegations of “promotion and selection process” constitutional violations). Nothing in Harkness’s commissioning process informed him taking his oath forfeited the Constitution’s protections; constitutional rights must be knowingly waived. Allowing this and the district court’s decision to remain as precedent is an insult to every military person, denying basic Constitutional rights to all who serve in the future. 22

A. Orloff Does Not Bar Jurisdiction over Constitutional Claims

Orloff granted certiorari to review lower court decisions allowing the Army to assign a doctor non- doctor duties, i.e., lab technician, although conscripted under the Doctor Draft Act. Following certiorari, the Army admitted the lower courts erred and petitioner must be assigned doctor duties, and did so. Orloff, 347 U.S. at 88-89. Petitioner’s refusal to complete commissioning requirements, id. At 89, required modification of his doctor duties reflecting his enlisted status, id. at 93. Petitioner argued he should be allowed to function as an “officer” doctor or be discharged.

His assignment to doctor duties removed the statutory question, id. at 89, 93. Orloff declined to evaluate his enlisted doctor duty restrictions: “Orderly government requires that the judiciary be [] scrupulous not to interfere with legitimate Army matters,” id. at 97 (emphasis added). Orloff’s use of “legitimate” is critical, marking the dividing line between military business and judicial duty. Orloff addressed no constitutional issues or illegal acts. Courts have a duty to intervene when personnel decisions violate the Constitution, statutes, or regulations. Unconstitutional retaliation is not a “legitimate matter.” The Circuit’s decision mirrors the Army’s illegal position before certiorari. 23

Especially troubling is the Circuit’s agreement with the Navy’s argument it is not bound to obey the Constitution, laws and its own regulations prohibiting illegal retaliation.

B. This Decision Violates the Cross- Appeal Rule

Arguing Orloff did not apply, Harkness cited Mendez as a well-known example of circuit decisions rejecting Orloff’s application to constitutional claims. See Pet.App.10a (citing other circuits adopting the Mendez test).

Harkness informed the Circuit the district court found Harkness stated a valid constitutional claim. See Pet.App.65b-67b. Respondent neither appealed that rejection nor addressed Mendez in his Circuit opposition. Nonetheless, the Circuit adopted Respondent’s unappealed argument, violating the “Cross-Appeal Rule.” Greenlaw, 554 U.S. at 243 (appellee cannot win on an issue it lost and did not cross-appeal). Because neither party’s briefing addressed the validity of Harkness’s retaliation claim, the Circuit also violated the “principle of party presentation.” Id.

More troubling, Respondent raised Orloff’ in a Rule 12(b)(1) jurisdiction motion. The Circuit had to accept Harkness’s well-pleaded allegations as true, construing “the allegations of the complaint ... 24 favorably to the pleader”, Schuler v. Rhodes, 416 U.S. 232, 236 (1994). The Circuit adopted the argument Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) rejected: “we hold an employment discrimination plaintiff need not plead a prima facie case of discrimination[.]”

The Circuit arbitrarily denied Harkness his right to prove a claim the district court found valid, violating the First and Fifth Amendments. This denied Harkness the right the Constitution gives all other Federal Whistleblowers. This rejection of well- recognized precedent to dismiss a chaplain’s complaint, erecting a dangerous precedent, emphasizes the need for this Court’s review.

II. Dismissing Harkness’s Statistics as “Too Old” and Missing Speculative Factors Raises Constitutional Issues

Key to understanding the magnitude of the Circuit’s prejudicial mistakes is its unlawful dismissal of Harkness’s statistical analysis, thereby sidestepping the constitutional issues and avoiding carefully examining the challenged practices. Absent statistics, the Circuit found no denominational preferences. This dangerous precedent requires reversal.

The Circuit’s rejection of Harkness’s statistics as “too old” and missing “confounding factors”, 25 contrary to its own and this Court’s precedent, is inexplicable. No evidence supports the Circuit’s assertion reducing chaplain board members affected the challenged procedures, Pet.App.21a-22a, making it prejudicial speculation. The issue is the blackball voting machine and the Chief’s or Deputy’s influence on chaplain board members. Respondent neither argued nor presented evidence the challenged procedures changed. Harkness’s statistics showed continued non-neutrality in results. Pet.App.21g-24g. Respondent’s Prom.Brief describes the procedures.

The similarity of the facts and context of this case with Bazemore v. Friday, 478 U.S. 385 (1986), that led this Court to grant certiorari and reverse is striking, as is the difference in outcomes. Phillips v. Cohen, 400 F.3d 388, 400 (6th Cir. 2005), was the Circuit’s application of Bazemore prior to this case.

A. Precedent Holds “Old” Statistics Can Be Relevant in Discrimination Cases

This Court’s precedent directly addresses the relevance and value of “old” statistics, clearly establishing prior acts of discrimination are relevant and therefore admissible when similar acts are currently at issue. “Proof that an employer engaged in racial discrimination prior to the effective date of Title VII might . . . support the inference that such 26 discrimination continued, particularly where relevant aspects of the decision making process had undergone little change.” Hazelwood School District v. U.S., 433 U.S. 299, 309–310, n. 15 (1977) (citing Fed.R.Evid. 406 and other authorities). Bazemore, 478 U.S. at 401-02, reemphasized Hazelwood’s principle: “As we made clear in Hazelwood”, then repeating the above quote. Accord United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) (prior acts “may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue”).

B. Dismissing Statistics Based on Speculative Factors Respondent Has Not Legitimately Raised Violates the Principle and Rule

Bazemore reversed a Fourth Circuit Order similar to the decision here, dismissing plaintiffs’ statistics for failing to account for factors neither party’s expert used, but the Fourth Circuit felt relevant. 478 U.S. at 398-99. Bazemore held “a regression analysis that includes less than ‘all measurable variables’ may serve to prove a plaintiff's case” provided the analysis addresses the major factors. 478 U.S. at 400. Here, the major factor is denomination, which Harkness’s statistics address. A party claiming an opponent’s statistics are missing factors should present evidence said factors make a difference. See Palmer v. Shultz, 815 F.2d 84, 101 27

(D.C. Cir. 1987) (Bazemore rejects speculation and requires evidence an alleged missing factor makes a real difference), n.13 (“ Mere conjectures and assertions usually will not suffice”).

Until this case, Sixth Circuit precedent followed Bazemore scrupulously. Phillips v. Cohen, 400 F.3d 388 (6th Cir. 2005) addressed African- American Department of Defense Finance and Accounting Service employees’ claims of racially discriminatory promotion procedures, 400 F.3d at 390. The lower court held the plaintiffs’ promotion statistics failed “to consider merit factors”, found the defendant’s statistics more reliable, ignored other factors in the record and dismissed plaintiffs’ disparate impact case. Id. at 395.

Phillips reversed the lower court’s imposition of speculative factors. "In cases involving promotion policies, the relevant inquiry is comparing the number of protected group members benefitting from promotions with the number seeking them; this figure is then contrasted with the corresponding ratio for the non-protected group." Id. at 399 (citation omitted). Phillips noted the Second and Ninth Circuits “conclude that the proper inquiry in promotion cases is ‘the composition of candidates seeking promotion and the composition of those actually promoted,’ without reference to the candidates' qualifications.” Id. at 400 (citing Stout v. Potter, 276 F.3d 1118, 1123 (9th Cir. 2002); Waisome 28 v. Port Auth., 948 F.2d 1370, 1372 (2d Cir. 1991)). Harkness’s statistics analyzed different denominational groups’ differing promotion rates as Phillips and Bazemore require.

The Sixth Circuit’s dismissal of Harkness’s statistics for omitting “confounding factors” violates the Party Presentation Rule and raises serious First and Fifth Amendment issues. The Sixth Circuit has no expertise in military promotions and personnel systems or the unique statutory and regulatory factors determining chaplain promotion eligibility. Respondent, the operator of the promotion system in question, carefully and purposely avoided alleging Harkness’s statistics missed important variables because Respondent, opposing Harkness, cited his own expert, Dr. Siskin, who focused on chaplain promotion rates, not using the Sixth Circuit’s factors.

Respondent argued the lower courts should accept without reservation In re Navy Chaplaincy’s finding those plaintiffs’ statistics missed “potential confounding factors, such as promotion ratings, education, or time in service [TIS]” ,738 F.3d 425, 440 (D.C. Cir. 2013), cert denied, 135 S.Ct. 86 (2014).

Harkness argued Chaplaincy violated Palmer’s precedent, Respondent had not raised those factors in Chaplaincy, and they did not change the outcome, e.g., Title 10 determines “time in grade”, not TIS. The Sixth Circuit accepted without question 29

Chaplaincy’s factors but deleted TIS. It accepted a finding resting on a violation of the Principle, denying Harkness the right to show the alleged missing factors were either already considered in the military’s promotion system or not relevant.

The Circuit’s only basis for usurping Respondent’s burden to object to the opposing party’s statistics, see Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 996 (1988) (defendant claiming deficiencies in plaintiff’s data “is free to adduce countervailing evidence of his own”), is uninformed speculation on the relevance to military promotions of factors it assumed were missing.

The Circuit’s term “promotion ratings”, 22a, is neither defined nor measurable. The Circuit’s assumption “promotion ratings” can be gleaned from candidates’ records demonstrates the Circuit’s military promotion system ignorance. Chaplain performance reports don’t get a grade. Title 10 determines eligibility. Individual records are protected by the Privacy Act. The only public information Respondent’s promotion precepts reveal is those considered and promoted. Candidates’ denominations are not part of that disclosure but were gathered by examining CHC chaplain rosters. It is the board member’s responsibility to examine a candidate’s record and evaluate such things as “leadership skills” based on the comments of others. For chaplains, board members evaluate ministry, an 30 undefined religious term without objective standards.

Harkness objects to promotion votes based on an individual briefing a candidate’s record rather than each member reviewing each record. The FY 97- 98 NIG demonstrates Respondent’s practice makes one’s career dependent on a board member’s briefing skills and ability to highlight the best portions of a chaplain’s record. Promotion depends on a briefer’s ability, not the candidate’s record. This procedure provides neither equal opportunity for promotion nor equal protection of the law. Some candidates do not get good briefers. No other Armed Service uses this procedure.

Education has two dimensions, level, e.g., postgraduate, and content or type. Chaplains must meet specific postgraduate education requirements before commissioning. Neither Respondent nor a board can evaluate the content or quality zof chaplains’ religious education without unconstitutionally evaluating theological issues.

Respondent requires every candidate to be “fully qualified” before being evaluated by a board. A board finding a candidate “not qualified” must recommend separation. Promotions are based on board members’ subjective evaluation of a candidate’s record based on “briefed” performance reports. 31

The truly objective observer would question why the Circuit, with no knowledge of the military promotion system, abandoned Phillips and speculated on missing confounding factors Respondent did not challenge and show their relevance to the outcome as Phillips requires, and became an adversary, not a detached, objective evaluator of competing versions of evidence under the Circuit’s law, e.g., Phillips.

This Court should reverse this unwarranted breach of judicial neutrality, now precedent, clarifying Bazemore requires an objecting party show through analysis alleged missing factors actually make a difference. It is the parties’ responsibility to frame the issues and prove their statistics.

This case illustrates the need for a uniform judicial standard. A court’s treatment of a plaintiff’s statistics should not depend on where a case is filed.

III. The Sixth Circuit Did Not Properly Review Harkness’s Establishment and Due Process Claims

The heart of Harkness’s constitutional challenges is Respondent’s promotion procedures granting a denominational-representative on the promotion board unbridled power to secretly veto another chaplain’s promotion, torpedoing his/her career. If Grumet and Larkin are still valid 32 precedent, this is an unconstitutional fusion of religious and civic power through the delegation of unbridled civic power to persons defined by their religious identity.

Chaplain promotion board IG investigations show the Circuit is wrong and Respondent has no effective guarantees religious factors do not influence a denominational-representative’s use of that power through Respondent’s challenged procedures: his blackball voting machine, voting on a chaplain’s record as briefed by a chaplain board member and the Chief’s influence as Board President.

Respondent’s Prom.Brief acknowledges the blackball procedures; Respondent has never denied the fact one board member can secretly “zero out” a chaplain candidate with no review or accountability, nor can he. The unchallenged NIG results, Pet.App.1f-11f, demonstrate Respondent’s “blackball” epitomizes the unbridled governmental power the Rule forbids. It unconstitutionally places unbridled power in the hands of two denominational- representatives with no accountability. A real objective observer would conclude the Circuit ignored the unique context of this case, the Rule, the Principle and controlling precedent, to avoid addressing Harkness’s challenges despite acknowledging them, see Pet.App.6a. 33

A. Harkness’s Statistics Demonstrate the Procedures Produced Denominational Preferences for 38 Years

Dr. Leuba’s Preferences clearly establishes the prejudicial impact of the Chiefs’ and board members’ denominations in CHC promotions. “More than 80% of the uncertainty in whether one will be promoted or not can be explained by the correlation (similarity) between the religious beliefs among the Promotion Board members and the candidate’s denomination!” Pet.App.5g, ¶ 2.19.11.2.

Promotion rates for CDR and CAPT candidates who shared the Chief’s denomination were statistically significantly higher than for candidates not sharing a Chief’s denomination. For CDR, 83.33 % (match) versus 73.17 (no match); for CAPT, 78.57 (match) versus 50.45 (no match). Pet.App.8g-9g, Table. 9, ¶¶ 2.20.5 and 2.20.5.1.

Harkness sought promotion to CAPT. The absolute promotion rate difference was 28.12% (78.57-50.45); clearly not “paltry”, Pet.App.51b, but a 56% relative advantage (28.12/50.45) in the likelihood of promotion to Capt if a candidate represents the Chief’s denomination or another chaplain member’s denomination. That is neither denominational neutrality nor equal opportunity. 34

The Circuit ignored Dr. Leuba’s 38 Years of Denominationalism, Pet.App.17g-25g (extracts), demonstrating the Chiefs’ impact on promotions from 1974 to 2013 in terms of four denominationally different Chiefs related data-sets: from highest to lowest, RC; CoC; SB; and Nevers. The 38 year promotion-rate by rank differences of the four groupings are statistically significantly different. Pet.App.20g. Both studies show Respondent’s procedures are neither denominationally neutral nor provide equal opportunity.

The Circuit’s rejection of statistics and arbitrary un-enforcement of its own and this Court’s precedent permits Respondent to avoid liability for obvious denominational neutrality violations, denying justice to Harkness and others whom this precedent may prejudice.

B. The Circuit’s Rejection of Statistical Significance as a Meaningful Measure of Non- neutrality Is a Corrosive Precedent

Harkness’s statistics show over a 20 year period candidates who share a denomination with a Chief have higher promotion rates than those whose denomination do not match a Chief, 10% at Commander (CDR) and 28% at Captain. III.A supra. The Circuit’s holding that the objective observer would not “perceive endorsement” from these 35 differences, Pet.App.21a, defies reason. An objective observer would know (a) the importance of statistics is not the numerical difference in promotion rates per se but whether the differences in promotion rates are explainable by chance, i.e., statistically significant, which (b) raises an inference of discrimination under Title VII. Castaneda v. Partida, 430 U.S. 482, 496 n.17 (1977). The inference of discrimination shifts the burden to Respondent to provide viable reasons for the outcome differences; see Palmer, 815 F.2d at 92 (“statistical evidence meeting ‘the .05 level of significance . . . [is] certainly sufficient to support an inference of discrimination’").

If the categories were white and black managers, the objective observer would know the results were not neutral, inferring race played a factor. True neutrality would be zero difference. The Circuit ignored Denominationalism’s evidence of consistent statistically significant higher promotion rates for 38 years (1974-2012) for (a) denominations that had Chiefs compared with those who did not, and (b) differences within the Chief category. These results, see Pet.App.21g-24g (2001-2011), show the procedures are not denominationally neutral. The Circuit’s decision defies logic, necessitating this Court’s reversal.

This Court’s Title VII jurisprudence provides a useful reference for examining when a government awards procedure touching religion is not neutral, 36 recognizing minor variations occur in any promotion system for valid non-prejudicial reasons. While using terms like “significant differences in rates”, precedent makes clear the question is whether the differences are explainable by chance. The Circuit rejected that approach here, Pet.App.21a, establishing a dangerous new precedent, a cancer that attacks the Establishment Clause’s neutrality mandate.

The objective criteria for non-neutrality in such a program is a measure of first impression. The Sixth Circuit’s holding makes obvious preferences falling outside the realm of chance in a promotion procedure neutral.

The County of Allegheny, 492 U.S. at 608-09, language the Circuit rejected provides a standard consistent with Title VII and other anti- discrimination laws: “we have expressly required ‘strict scrutiny’ of practices suggesting ‘a denominational preference’” (emphasis added) (citation omitted). 38 years of distinct promotion preferences are most likely not due to chance. Given the uncontested evidence of Respondent’s blackball procedures and verified discrimination, see Pet.App.1f-10f, statistical significance should be the standard in this case. 37

C. Limiting Review of Harkness’s Establishment Claims Conflicts with the Judiciary’s Duties to Carefully Examine Establishment Claims

Limiting a court’s review of Establishment claims to the administrative record is incompatible with the judiciary’s constitutional duty to enforce the Constitution, City of Boerne v. Flores, 521 U.S. 507, 524 (1997) (“The power to interpret the Constitution in any case or controversy remains in the Judiciary”), and with Nyquist’s and Gillette’s specific commands to carefully examine challenged practices for subtle as well as overt violations of religious neutrality.

The lower courts’ review of Harkness’s claims on the administrative record in this case’s unique context demonstrates that conflict, which.this Court should resolve.

1. The Judiciary’s duty is to interpret and enforce the Constitution

Our government is one of limited, delegated powers. The Constitution grants no governmental branch or agency, including the Navy, power to violate the Constitution, statutes, its own regulations, or to cover up misconduct. “There are no de minimis violations of the Constitution--no 38 constitutional harms so slight that the courts are obliged to ignore them.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 36-37 (2004) (O’Connor, J., concurring). “[T]he particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law [or practice] repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument.” Marbury v. Madison, 5 U.S. 137, 180 (1803).

The Constitution’s Article II grants Respondent the duty and power to enforce the law, not violate it. The duty and power to enforce the law inherently forbids hiding or encouraging misconduct.

Courts have a duty “to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.” Coolidge v. New Hampshire, 403 U.S. 443, 454 (1971) (citation omitted). This Court’s oft stated duty of courts of justice is “to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” U.S. v. Brown, 381 U.S. 437, 462 (1965) (citation omitted). The judiciary has no power to allow coordinate branches to violate the Constitution or hide government misconduct. “ It is the duty of the federal courts to inquire whether an action of a military agency conforms to the law, or is 39 instead arbitrary, capricious, or contrary to [law].” Dilley v. Alexander, 603 F.2d 914, 920 (D.C. Cir. 1979).

2. Establishment claims require detailed judicial examination

Establishment claims require “careful examination of any [practice] challenged on establishment grounds with a view to ascertaining whether it furthers any of the evils against which that Clause protects.” Nyquist, 413 U.S. at 794. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 542 (1993) and Gillette, 401 U.S. at 452, require courts go beyond a practice’s facial neutrality to carefully examine subtle departures from denominational neutrality.

3. Courts cannot ignore identified investigations showing Establishment violations

The Circuit rejected Harkness’s citation to the promotion board IG investigations claiming “this evidence was not presented to the Secretary, nor is it part of the administrative record.” Pet.App.23a. This is judicial error. Harkness’s requests for an SSB specifically mentions Respondent’s investigations of chaplain promotion boards. Pet.App.4e-5e (“The Navy’s chaplain-board 40 investigations show the influence of board presidents (CHC Chief or his Deputy) and the impact of slight, negative inferences....”). Respondent cannot deny IGs investigated four specific chaplain promotion boards; he approved lifting § 613a’s proceedings protection for the investigations. Respondent was aware the FY 09 CAPT board NIG found RADM Baker’s innocuous comments prejudiced a non-liturgical chaplain. Respondent’s willful blindness to the reality of those investigations neither negates the fact Harkness made specific reference to them and their importance to his claim, nor Respondent’s duty to enforce the law, ensuring his procedures preclude denominational preferences and Establishment Clause violations, claims that mirrored ongoing litigation. It was prejudicial legal error for the lower courts to ignore that evidence.

The Circuit implies Harkness should have presented Respondent every piece of evidence already produced in the Chaplaincy Litigation. If Respondent had not recognized the validity of the Chaplaincy Plaintiffs’ evidence, it is absurd to think his response to Harkness would have been any different the second time. The statute requires Harkness make his claims to Respondent. Respondent was on notice of Harkness’s claim with its reference to specific material Respondent had already ignored or rejected. 41

4. The duty to thoroughly review establishment claims overrides administrative record review limitations

This case illustrates the conflict in reviewing Establishment Clause claims on the Administrative Record. 10 U.S.C. § 14502 required Harkness notice Respondent of his claims before seeking judicial relief. Harkness-I, 727 F.3d at 470- 73. Title 10 does not define “claim.” Fed.R.Civ.P. 8(a)(2) defines “Claim for Relief” criteria, “a short and plain statement of the claim showing that the pleader is entitled to relief.” A § 14502 “claim” seeking judicial relief must meet Rule 8's criteria.

Harkness’s SSB request presented Respondent Harkness’s establishment and board composition claims, referred to Respondent’s investigations, Harkness’s statistics and evidence in his other litigation. Pet.App.1e-10e. Respondent denied the claims. Respondent’s Prom.Brief documents the procedures Harkness challenges. Respondent’s investigations proving Harkness’s claim the blackball procedures give a chaplain board member unbridled power to torpedo a candidate’s career are in Respondent’s control. Respondent has not denied those investigations’ validity given his Executive agent’s responsibilities to manage the Navy and enforce the law, but he ignored them here in rejecting Harkness’s claim. The lower courts 42 approval of Respondent’s willful blindness is inconsistent with their duty to carefully examine Respondent’s challenged practices for Establishment violations evident in the IG investigations and Harkness’s statistics, and require Respondent fulfill his constitutional duties. That approval establishes dangerous precedent undermining the Establishment Clause’s neutrality mandate while rewarding a major government agency for operating outside the law and ignoring its own evidence its procedures are unconstitutional.

In normal litigation, Harkness’s complaint would present the court his Rule 8 claim challenging the procedures’ unconstitutionality. Respondent would deny it, and the parties would initiate discovery. Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123 (1992), a facial challenge to a parade permit scheme, illustrates the process. The plaintiff challenged the requirement to pay for a permit whose cost an administrator determined based on his estimate for county services the type of parade required. No rules restricted the administrator’s discretion. Discovery examined the policy’s past implementation and statutory, regulatory or policy constraints limiting the administrator’s discretion. The Court found the scheme, similar to Respondent’s blackball procedures, unconstitutional on its face.

The administrator is not required to rely on any objective factors. He need 43

not provide any explanation for his decision, and that decision is unreviewable. Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official.

Id. at 132–33. Review on the administrative record improperly shortcuts this process essential to expose the facts necessary to correct subtle departures from neutrality.

Respondent’s own investigations show his denial the challenged procedures allow prejudice is unsupported and made in bad faith, i.e., ignoring evidence in Respondent’s possession validating Harkness’s claim. This rewards Respondent for ignoring his specifically cited investigations and abandoning his duty to enforce the law.

The Circuit’s limitation to the administrative process prevents a petitioner’s challenge to agency refusal to recognize a controlling issue of law absent a series of potentially never-ending exchanges. Harkness claimed the challenged blackball procedures unconstitutionally delegated unbridled civic authority to persons identified by their religious 44 character without the appropriate constitutional safeguards, a question of law. Restriction to the administrative record precluded Harkness from addressing Respondent’s denial and deceitful responses, which Harkness cannot predict or control.

Nothing in § 14502 indicates Harkness has to file a “Brandeis brief” supporting his “claim”, particularly when he cannot predict Respondent’s basis for denying the challenged procedures delegate unbridled power to denominational-representatives. Respondent’s investigations, which Harkness cited, show blackballing occurs, fusing unbridled civic and religious power. Absent this Court’s intervention, Respondent will continue to flaunt his Establishment violations, relying on this precedent.

The question here is why the lower courts did not insist Respondent acknowledge IG investigations showed his arguments and representations were false. Rewarding government agency for deceit to the court and violating its oath to uphold the Constitution is a dangerous precedent, inviting anarchy.

Harkness asks this Court to declare the judiciary’s duty to carefully examine challenged practices for overt and subtle religious neutrality violations overrides administrative record review limitations when Establishment Claims are at issue. 45

D. Respondent’s Chaplain Blackball Promotion Procedures Fuse Civic and Religious Power

Harkness argued the delegation of’ discretionary civic authority to chaplains, hired as denominational-representatives unconstitutionally fused civic and religious power as a matter of law under Grumet and Larkin. Respondent’s investigations show that delegation of power is unbridled, allowing a board member to torpedo a chaplain’s career with no accountability, as RADM Black’s and CDR Washburn’s NIG testimony demonstrated. Pet.App.1f-10f. The Circuit acknowledged chaplains were denominational- representatives but ignored the IG and other evidence the blackball procedures allowed denominational considerations to infect promotions. Pet.App.25a.

The Circuit’s holding a chaplain can abrogate his identity as a denominational-representative, morphing into a secular officer without religious bias, Pet.App.26a (serve on promotion boards as Navy officers), and the chaplains “share decision making authority with five others”, Pet.App.25a, is without support and contrary to the unchallenged IG evidence. Likewise, it’s holding that regulations, Respondent’s guidance and post board review provide restraint on the blackball procedure, id., has no record support; it is contradicted by statistics, 46

Respondent’s investigations, and other evidence available to the courts.

The Circuit decision’s absurdity is demonstrated by two significant, unchallenged facts. Respondent restricts chaplains from every exercise of the Sovereign’s power except vetoing promotions and secretly destroying other chaplains’ career. Board members decide what denominational- representatives best meet the the Navy’s religious needs. If Respondent recognizes chaplains cannot separate their officer identity from their denominational-representative identity in the normal, everyday, secular Navy duties, e.g., “stand watches”, Pet.App.1d, how can that happen when “evaluating” ministry, a religious subject evaluated from a chaplain’s denominational perspective?

Grumet and Larkin found the delegation of civic authority to persons or groups defined by their religious identity was an improper fusion of civic and religious power and the joint exercise of that power promoted religion. Larkin’s circuit court analysis of the churches’ substantial benefit the right to veto a liquor license conferred, not unlike the blackball’s absolute veto power over a chaplain’s career, shows the Circuit’s error.

The extent of the benefit at issue ... is substantial. This benefit is the grant of a veto power over liquor sales in 47

roughly one million square feet .... The statute simply requires that the church "object[]". *** [W]e note that the law vests every church with a power to give or deny to an establishment a privilege, the absence of which may threaten the viability of the enterprise and the presence of which may substantially enhance its profitability.

Grendel's Den, Inc. v. Goodwin, 662 F.2d 102, 105 (1st Cir. 1981), aff’d sub nom, Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982).

Respondent’s blackball vests a chaplain board member with “a power to give or deny [a candidate] a privilege, the absence of which may [destroy his/her career] in the presence of which [will] substantially enhance its profitability.” Harkness’s statistics show the challenge procedures advanced specific denominations for 38 years, not a "remote and incidental effect advantageous to religious institutions." Nyquist, 413 U.S. at 784 n. 30.

Barghout v. Bureau of Kosher Meat and Food Control, 66 F.3d 1337 (4th Cir. 1995) and Commack Self-Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415 (2d Cir. 2002), cert denied, 537 U.S. 1187 (2003) found the fusion of government and religious authority by placing rabbis on boards defining or regulating kosher food was unconstitutional. It 48 produced a “combined exercise of civic and religious authority”. Commack, 294 F.3d at 429. The rabbis were board members because defining kosher food was a religious activity like evaluating ministry here. Chaplains are board members because they are denominational-representatives, to deny the delegation of power to them is incidental to their identity is absurd.

E. The Procedures Are Facially Unconstitutional

Harkness attacks three promotion board procedures that delegate to a chaplain board member unbridled power to anonymously veto a promotion and torpedo the careers of subordinate denominational-representatives. None of the challenge procedures have accountability or are necessary for the promotion of Naval officers and/or chaplains. The blackball machine, Pet.App.1h, allows a board member to anonymously “zero out”, i.e., veto, a chaplain’s promotion with no accountability nor the requirement to justify such an extreme action. The reasonable observer would know the “0/NO” button meant “NO” to promotion and “NO” to a career, violating the Rule. The blackball machine delegates to one board members the power to anonymously veto every other vote. The Washburn NIG evidences this reality. Pet.App.1f-11f.

Respondent’s blackball procedures convert the 49 board process into the equivalent of a licensing or permit scheme requiring the approval of a government official, i.e., board member. “[A] facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers.” City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 (1988).

The Circuit’s conclusion the system was neutral because Title 10 or respondent’s regulations did not grant denominational preferences on their face, Pet.App.20a, contradicts First Amendment precedent, which evaluates the practice’s actual power and effect, not just its words. Church of Lukumi, Ibid., (“Facial neutrality is not determinative”).

The only guarantee Respondent and the Circuit cite as “effective guarantees” the procedures are used solely for secular, neutral and nonideological purposes” is the alleged neutrality of the regulations, e.g., allegedly selecting board members without regard for denomination, an impossibility because each chaplain is defined by his denomination, and the oath of objectivity each board member takes. The IG investigations Respondent and the Circuit ignored show these are not effective, a fact the district court recognized. Pet.App.56b. All IG investigations were initiated by victims, not board 50 personnel.

The lower courts ignored the facts chaplains are denominational-representatives and promotion is a reward for ministry, an undefined religious activity determined by denominational perspective. RADM Holderby testimony to the IG makes this point. He admitted lobbying for a previously failed of selection chaplain from his denomination based on a “devotional” the candidate presented at a meeting. RADM Holderby, in effect, admitted he was applying criteria outside the record based on his denominational appreciation of a fellow Lutheran, a denominational preference. RADM Holderby also admitted the fact he was a Rear Admiral and the Chief could influence other board members.

This promotion system not fair nor protected from having denominational influences determine who is awarded promotion.

CONCLUSION

The Sixth Circuit’s decision conflicts with the Constitution and this Courts controlling precedent. It establishes a dangerous precedent for all military personnel now and to come. The Court should grant certiorari to address this extraordinary error.

Respectfully submitted, 51

Arthur A. Schulcz Sr. Counsel of Record Chaplains Counsel, PLLC 21043 Honeycreeper Pl. Leesburg, VA 20175 (703) 645-4010 [email protected]