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.