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VEITCH v. DANZIG

February 27, 2001

D. PHILIP VEITCH, PLAINTIFF,
V.
RICHARD J. DANZIG, SECRETARY OF THE NAVY, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Jackson, District Judge.

MEMORANDUM AND ORDER

Plaintiff D. Philip Veitch, a former U.S. Navy chaplain who served on active duty from June, 1987, until his separation from service in September, 2000, with the rank of lieutenant commander, sues to be reinstated and restored to active duty. He alleges that his separation, although granted upon his own application to resign his commission, was in the circumstances involuntary, having been induced by unconstitutional demands of his command chaplain and others.

The case is presently before the Court upon plaintiffs motion for a preliminary injunction that would order his immediate reinstatement pendente lite. The Navy opposes.

I.

Briefly stated, Rev. Veitch asserts that he is an ordained minister of the Reformed Episcopal Church, a theologically conservative, evangelical denomination. His confrontation with the Chaplain Corps hierarchy began in 1997 when he was stationed at the Norfolk Naval Base. He filed a religious discrimination complaint against his command chaplain alleging that he had been improperly excluded from preaching in the General Protestant service aboard the U.S.S. Enterprise, homeported in Norfolk. Veitch's complaint was resolved against him, and he was transferred to the U.S. Naval Support Activity ("NSA") in Naples, Italy, reporting for duty to a new command chaplain in mid-December, 1997.

In Naples, plaintiffs command chaplain was Captain Ronald Buchmiller, a Roman Catholic. According to Veitch, Buchmiller and an Episcopal chaplain conspired to create an atmosphere of religious intolerance directed toward conservative and evangelical Protestants in Naples, including plaintiff, suggesting that he should preach "religious pluralism" and refrain in his sermons from disparaging other religions. Plaintiff filed a second EEOC complaint in November 1998, which was again dismissed.

The acrimony between Veitch and Capt. Buchmiller escalated, culminating in the spring of 1999 in a disciplinary charge against Veitch preferred by the commanding officer, NSA, Naples, under Article 89 of the Uniform Code of Military Justice, for disrespect of his superior officer, Capt. Buchmiller. At first Rev. Veitch elected to stand trial by court-martial in lieu of nonjudicial proceedings at "captain's mast," but in late March, 1999, acting upon advice of his JAG counsel, Veitch tendered his resignation of his commission in advance of trial. Two weeks later he requested the Department of Defense Inspector General to conduct an investigation of the circumstances of his resignation, arguing that it was coerced and that Capt. Buchmiller had created a culture of religious oppression against plaintiff and other evangelical groups in Naples. In May, 1999, the Inspector General accepted the complaint for investigation.

Upon a change of command at NSA, Naples, Veitch sought unsuccessfully to rescind his resignation, but his original separation date of November 30, 1999, was postponed, allegedly at the request of a U.S. Senator, pending completion of the Inspector General's investigation. The Department of Defense assigned the investigation to the Navy Inspector General, who concluded his investigation on May 23, 2000. The lengthy Inspector General's Report ("IG Report") concluded that plaintiffs "disciplinary problems . . . resulted from his own misconduct" and that the allegations of reprisal were unsubstantiated. IG Report at 37.

On September 30, 2000, plaintiff was separated from the Navy. He filed his complaint and the instant motion for a preliminary injunction in this Court on December 13, 2000.

II.

Plaintiffs complaint charges: (1) violation of the First Amendment's Free Exercise and Establishment clauses (based on Buchmiller's actions toward plaintiff); (2) violation of plaintiffs First Amendment free speech rights and right to seek redress (the Navy's insistence that he preach "pluralism among religions," and the Navy's retaliation for his complaining about religious discrimination); (3) violation of the Equal Protection Clause under the Fifth Amendment (inconsistent application of the Uniform Code of Military Justice); (4) illegal or constructive discharge (hostile working conditions); (5) violation of the Religious Freedom Restoration Act ("RFRA") (censoring what plaintiff could preach); (6) irreparable harm (his precipitous separation from the Navy); (7) violation of plaintiff's civil rights (withholding back pay);*fn1 and (8) conspiracy to violate plaintiff's civil rights.

To prevail on a motion for a preliminary injunction in this Circuit, plaintiff must show: "(1) a substantial likelihood of success on the merits; (2) irreparable harm or injury absent an injunction; (3) less harm or injury to the other parties involved; and (4) the service of the public interest." McVeigh v. Cohen, 983 F. Supp. 215, 218 (D.C. 1998) (citing Dendy v. Washington Hosp. Center, 581 F.2d 990, 992 (D.C.Cir. 1978) and Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir. 1977)); see also Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1505-6 (D.C.Cir., 1995).

At the outset, the Court observes that plaintiff seeks a mandatory injunctive intervention. He asks this Court to require defendant to take affirmative steps to reverse his separation and restore him to active duty five months after his separation was finalized. Such a ruling would alter, not preserve, the status quo. Accordingly, he must meet a higher standard than were the injunction he sought merely prohibitory.*fn2

If, as plaintiff contends, this controversy is centered upon a religious orthodoxy mandated by the Navy — even one officially sanctioned as appropriate for a military population of diverse religious beliefs — plaintiff's First Amendment claims are by no means insubstantial. Plaintiff argues that the Navy, in effect, drove him from his pulpit for failure to preach "pluralism among religions" and/or "inclusiveness." The Establishment Clause clearly forbids that there should be any official judgments about the correctness of religious beliefs. See United Christian Scientists v. First Church of Christ, Scientist, 829 F.2d 1152, 1167 (D.C.Cir. 1987). To the same effect, the RFRA, 42 U.S.C. § 2000bb-1(a), (b), provides that "[g]overnment shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" except "if it ...


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