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