United States District Court for the District of Columbia
April 4, 2005.
D. PHILIP VEITCH, Plaintiff,
HON. GORDON R. ENGLAND, SECRETARY OF THE NAVY, et al., Defendants.
The opinion of the court was delivered by: JUDITH M. BARZILAY, Judge
Plaintiff, Rev. D. Philip Veitch, ("Chaplain Veitch," "Rev.
Veitch"), a former active-duty Navy chaplain, filed this suit
seeking his reinstatement and return to active duty following his
separation from the Navy on September 30, 2000. Plaintiff seeks
equitable, declaratory, and injunctive relief to protect his
rights under the First and Fifth Amendments, the Religious
Freedom Restoration Act ("RFRA"), other federal statutes, and the
Navy's regulations. Rev. Veitch claims that the Navy persecuted
him for his religious faith and practices; censored his religious
speech and removed him from his Protestant congregation's pulpit
for preaching historic Protestant doctrines; retaliated against
him for officially complaining about the deprivation of those
rights; and coerced him into resigning from the Navy. Plaintiff's
Complaint includes the following counts: (1) a violation of the
First Amendment's free exercise and establishment clauses; (2) a
violation of Plaintiff's First Amendment Rights of free speech
and illegal retaliation for Plaintiff's filing of an equal
opportunity complaint; (3) a violation of equal protection under
the Fifth Amendment, alleging, inter alia, inconsistent
application of the Uniform Code of Military Justice and the
Navy's allegedly arbitrary and capricious denial of Plaintiff's
request to withdraw his resignation; (4) illegal or constructive
discharge due to hostile work conditions, including the threat of
a court-martial that created a climate of duress and coercion;
(5) a violation of the RFRA; and (6) illegal retaliation in
response to Plaintiff's complaint of religious discrimination
through the Navy's approved channels. Discovery has been
completed and this matter is before the court on cross-motions
for summary judgment pursuant to FED. R. CIV. P. 56. The parties
have submitted memoranda and exhibits in support of, and in
opposition to, the pending motions, including declarations and
excerpts from various depositions taken during discovery.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Rev. Veitch is an ordained minister in the Reformed Episcopal
Church and was endorsed by his church to become a Navy chaplain.
First Am. Compl. ¶ 7; Veitch Dep. at 346:22-347:1. From June
1997 until September 2000, Plaintiff served as a commissioned
officer with the rank of lieutenant commander in the U.S. Navy
Chaplain Corps. In December 1997 Plaintiff and his family were
assigned to the Naval Support Activity (NSA) in Naples, Italy
(hereinafter "Naples"). Plaintiff's wife testified that when the
Veitch family arrived in Naples, Captain Ronald Buchmiller,
Chaplain Veitch's new supervisor, told her that her husband would
"not be doing much" during his Naples tour of duty. Sharon
Veitch Decl., at 3, ¶ 15. The parties disagree whether such a
statement was made, and, if so, whether it demonstrated Captain
Buchmiller's alleged animus toward Plaintiff or simply meant that
Plaintiff would be given time to settle in before receiving more work. Buchmiller Dep. at
Plaintiff argues that Captain Buchmiller's discriminatory
animus originated even prior to his arrival in Naples, when
Captain Buchmiller and Plaintiff were both stationed at Norfolk,
Virginia. At that time, Plaintiff Veitch considered filing a
discrimination complaint against his then supervisor through the
Navy's approved grievance channels. According to Plaintiff,
Captain Buchmiller warned him that the Chaplain Corps would "end
his military career" if he exercised his right to file an equal
opportunity complaint. Veitch Dep. at 215:13-18. Captain
Buchmiller denied that he ever threatened Plaintiff, testifying
that he advised Plaintiff against filing a complaint because he
was leaving Norfolk for another assignment and it would "end up
making [Rev. Veitch] bitter." Buchmiller Dep. at 20:7-22. The
parties did not make any claims with respect to the underlying
facts of that complaint, as Plaintiff refers to the events in
Norfolk merely to allege that Captain Buchmiller planned to ruin
his Navy career.
According to Plaintiff, Captain Buchmiller, a Roman Catholic
priest, Chaplain Steven Pike, an Episcopal chaplain, and Captain
John J. Coyne, the commanding officer of the Naval Support
Activity in Naples, conspired to create an atmosphere of
religious intolerance directed toward conservative and
evangelical Protestants in Naples, including Plaintiff, in part
by suggesting that he should preach religious pluralism. First
Am. Compl. ¶ 14; Pl. Br. in Supp. of Opp'n and Cross-Mot. for
Summ. J., at 45. In support, Plaintiff cites to the testimony of
several evangelical Protestants who worked in the Naples chapel
describing the chapel climate created by Captain Buchmiller.
See, e.g., Siegfriedt-Wilson Dep.; Bowling Decl.; Corean Decl.;
DeMarco Decl. There are statements in the record before the
court that certain evangelical Protestants in the Navy, including
chaplains and their spouses, felt "anti-evangelical hostility"
from Chaplain Pike and the chapel leadership under Chaplain Buchmiller. See,
e.g., Colon Decl., at ¶ 9. Chaplain Siegfriedt-Wilson testified
that he left the Naples chapel because he "could not do [his]
job" because "the stress was too great . . . [and they] were not
wanted." Siegfriedt-Wilson Dep. at 63:2-21. Brendajo Bowling,
who worked as a pianist for Chaplain Pike in Naples, testified in
her declaration that "the atmosphere of fear and hostility toward
evangelicals" was "created, controlled and fed by Chaplains
Buchmiller and Pike." Bowling Decl. ¶ 5. Mary Colon, who was a
member of the evangelical congregation at the Navy chapel at the
relevant times, stated that in her responsibilities as the
Protestant Director of Religious Education, she "witnessed and
experienced anti-evangelical hostility from Chaplain Pike and the
chapel leadership under Chaplain Buchmiller." Colon Decl. ¶ 9.
There are no specific descriptions in the record detailing
actions or incidents which would demonstrate that the environment
in the Navy chapel was hostile and intolerable.
Central to Plaintiff's own experience of religious
discrimination is his claim that Captain Buchmiller criticized
his sermons and sought to stifle their content. See, e.g., First
Am. Compl. ¶ 60; Veitch Dep. at 346:6-14. Plaintiff's
allegations relate to a sermon he gave on November 8, 1998, which
elicited several complaints addressed to Captain Buchmiller.
Veitch Dep. at 376-77 (describing his sermon as
"anti-priest."). The complaints came from chaplains and charged
Plaintiff with "speaking ill of other chaplains" and calling them
"unregenerate." Buchmiller Dep. at 92-93. Although Captain
Buchmiller himself did not attend or read Rev. Veitch's sermon,
he was compelled to discuss the sermon with Plaintiff in light of
those complaints. The parties disagree about what exactly was
said at the meeting between Plaintiff and Captain Buchmiller:
Plaintiff testified that Captain Buchmiller forbade him to preach
"Sola Scriptura," a central tenet of Plaintiff's faith. Veitch Dep. at 346. Captain Buchmiller
testified that he did not forbid Plaintiff from preaching Sola
Scriptura, but instead asked him not to denigrate other
chaplains. Buchmiller Dep. at 93, 184 ("I told him that I had
no problem with Sola Scriptura as long as he was not being
divisive and destroying the reputation of the other chaplains."
Id. at 184.). Following the meeting, Plaintiff sent an e-mail
to Captain Buchmiller:
(1) You will need to be far more specific in your
statements about "antipriest." I didn't understand
your point. You were pretty emotional and
dogmatic. . . .
(2) . . . you should ask before making statements
particularly in the emotional tones and in front of
RP's. The junior RP's have trouble with the gossip
from senior khaki. I have advised you about
that. . . .
E-mail from Veitch to Buchmiller, Nov. 12, 1998. This e-mail
was followed shortly thereafter by another e-mail to Captain
You will have to be "much more" thorough in your
counseling to me dtd. 12 Nov. 98. You will need to
capture it in writing. If it is not written, it does
not exist. . . . Your written counsel was
distinctively unhelpful due to its vagueness and lack
of definition. . . .
(2) Your comment about "negativity" in the sermon on
8 Nov. 98. You will just have to ask the 70 people
who were there. . . . You will have to be far more
explicit and thorough to satisfy my inexorable thirst
(3) I am pressing for a return to the old wells of
theology. Neither you, any CO [Commanding Officer],
or the CNO will quench that. . . . This is the lead
reason why I will leave the CHC [Chaplain Corps]. I
desire to work alongside those with a similar
vision. . . .
E-mail from Veitch to Buchmiller, Nov. 13, 1998, 9:05 a.m.
Captain Buchmiller responded to Plaintiff in writing, explaining
that "[S]ola [S]criptura is not my problem," and counseling
Plaintiff not "to imply that everyone else is wrong" or that "you
are the only source of the truth with implications that our other
chaplains have no valid theology." E-mail from Buchmiller to Veitch, Nov. 13, 1998. Plaintiff replied to Captain Buchmiller:
"You clearly have not gotten it," blaming him for "being all over
the place" and for making "an imputation you can't sustain."
Email from Veitch to Buchmiller, Nov. 13, 1998, 11:55 a.m. Rev.
Veitch wrote that the issue between them became "personal," and
that same day, Plaintiff filed an EEO Complaint*fn1
Captain Buchmiller, alleging the following as the basis for his
Need assistance and counsel re: content of sermons.
Feeling harassed by command chaplain. This is the
second time this has happened. A third instance
occurred with twists on a sermon from Matthew 10. I
have been counselled [sic] about negativity and
non-pluralism without adequate definition.
EEO Complaint, Nov. 13, 1998. Commander Lawrence Zoeller, a
Medical Corps Officer, conducted the equal opportunity
investigation and concluded that Rev. Veitch "engaged in
nonpluralistic activity as evidenced by his sermons and his
statements to the inquiry officer."*fn2
EEOC Report, ¶ 4.
Commander Zoeller also concluded that Captain Buchmiller
counseled Chaplain Veitch both formally through mid-term counseling and his fitness
report, and informally during the past 10 months to be less
negative in his sermons and have a "more pluralistic approach to
Christian ministry." Id. Commander Zoeller's report included
the following definition of pluralism:
Pluralism is a well-established doctrine encompassing
both ethical . . ., administrative . . ., and
practical standards . . ., in the USN Chaplain Corps.
The basic tenant of pluralism has a long history in
the Chaplain Corps. . . . In laymen's terms the Navy
Chaplain must minister to all faiths in such a manner
to be inclusive . . . to all and unoffensive . . . to
all Navy personnel.
EEOC Report, Attach. 1. Based on this concept, Commander
Zoeller determined that Chaplain Veitch's sermons were
"derogatory to other faiths because of specific references to
basic beliefs of other religions," and dismissed Plaintiff's EEO
Complaint. EEOC Report, ¶ 4, Attach. 1.
Commander Zoeller testified that he believed that Navy
chaplains would "have to be very careful to be pluralistic in
their sermons," especially knowing that there could be members
from a different religious group or denomination in their
congregations. Zoeller Dep. at 33:11-34:19. Plaintiff's
congregation was composed of several Evangelical Protestant
denominations, including liturgical and evangelical. Bryan
Decl. ¶¶ 2, 7(c). In support of his claim that Commander Zoeller
improperly labeled his sermons as non-pluralistic, Plaintiff
cites to the testimony of Lieutenant Commander Mark Hendricks,
who was deposed as an authority on the Navy's policy of pluralism
and made representations on behalf of the Navy about that policy.
Commander Hendricks explicitly stated that 10 U.S.C. § 6031 and
Naval Regulation 0817*fn3 "are two of the policy statements
that speak to what chaplains are able to do," and that "the
concept of pluralism would most closely depict the environment in which
we're called to serve as chaplains in the military," noting that
"the Navy doesn't dictate what is preached, so the chaplain has
freedom in that environment." Hendricks Dep. at 27:10-24;
Plaintiff concedes, however, that after November 13, 1998,
Captain Buchmiller neither mentioned the issue of Sola Scriptura
nor ever raised problems with any of Plaintiff's sermons. Veitch
Dep. at 398-99. His additional basis for alleging discrimination
and hostility is premised on Captain Buchmiller's alleged remark
to Plaintiff's wife shortly after his arrival in Naples that he
"won't be doing much here." While the parties contest the meaning
of this statement, Plaintiff concedes that Captain Buchmiller had
assigned him the duty to assist with Vacation Bible School.
Veitch Dep. at 270-71, 282-83. Plaintiff did not take this
assignment seriously because he learned about it from a less
senior chaplain. See Veitch Dep. at 281-83. Plaintiff, however,
did not attempt to address the issue of collateral duties with
Captain Buchmiller. Veitch Dep. at 257. In Rev. Veitch's June
1998 mid-term counseling report, Captain Buchmiller noted that
Chaplain Veitch did not perform collateral duties. Fitness
Report for Veitch, from Dec. 1997-Mar. 1998; see Buchmiller
Decl., ¶ 3. In the "Mission Accomplishment and Initiative"
section of the fitness report, Captain Buchmiller remarked that
Plaintiff did "only what [he] want[ed] to do." Fitness Report
for Veitch, from Dec. 1997-Mar. 1998. Chaplain Veitch was also
characterized as "not dependable: and not being "private" in his
e-mails, needing "more cooperation with . . . [Vacation Bible
School.]" Fitness Report for Veitch, from Dec. 1997-Mar. 1998.
In January 1999, Plaintiff was assigned six collateral duties,
including Vacation Bible School. Buchmiller Decl. ¶ 3,
Attach.1. Plaintiff, however, was dissatisfied with the nature of his duties and expressed his discontent in an e-mail to Captain
Buchmiller: "I offered, at midterm counselling [sic], a rejoinder
to which you offered no dispute or counter. And then, all of a
sudden, I am assigned in 1999 "6" duties? Called from the "bench"
to the field? That is a weak metaphor. The `grave' is more
appropriate. You put me in the grave, dead, cold, lifeless, and
now, there is to be a resurrection?. . . . That will be like
trying to get blood out of a turnip. Chaplain Buchmiller, you are
not Jesus . . . not even close." E-mail from Veitch, Feb. 8,
1999. Plaintiff stated that he would not perform any collateral
duties that involved working with Captain Buchmiller or Chaplain
Pike "for personal and religious reasons." Veitch Dep. at
415-16 (referring to E-mail from Veitch, Feb. 8, 1999).
Plaintiff also testified that after he had mentioned to Chaplain
Buchmiller that he was thinking about resignation, Chaplain
Buchmiller began to ask him on a daily basis when he would
resign. Veitch Dep. at 285:8-287:4, 410:6-411:2. Plaintiff,
however, acknowledged that Captain Buchmiller stopped asking him
about resignation upon Plaintiff's request. Veitch Dep. at
Following these events, Captain Coyne, the commanding officer,
became aware of the email correspondence between Plaintiff and
Captain Buchmiller. After reviewing the EEOC Report completed by
Commander Zoeller, Captain Coyne concluded that there was no
evidence of discrimination against Rev. Veitch, instead finding
that Plaintiff's conduct was not "in keeping" with his
understanding of the relationship between a Lieutenant Commander
and a Captain. Coyne Dep. at 68-69 (finding that the content of
the e-mails deviated "from a military bearing and discipline
standpoint." Id. at 71.) At the time Plaintiff was
contemplating filing another discrimination complaint against
Captain Buchmiller, Captain Coyne pressed charges against
Plaintiff for disrespect toward Captain Buchmiller. Captain Coyne
testified that this measure was supported by his finding that Chaplain Veitch
"attacked [Buchmiller's] position as a senior officer,"
demonstrating "continued insubordination." Coyne Dep. at 84,
184. Plaintiff admitted that he thought it was conceivable that
Captain Coyne might consider some of his emails to Captain
Buchmiller to be disrespectful. Veitch Dep. at 421; see also
id. at 330:13-15 (acknowledging that there was "an element of
sarcasm[,] . . . frustration and annoyance" in his emails to
Captain Buchmiller.) Plaintiff testified that he believed that it
was "not standard practice" to address a senior officer
disrespectfully, but that he felt that he was entitled to use a
sarcastic tone after having unsuccessfully attempted to resolve
his problems. Veitch Dep. at 330-33, 335-36.
Based on his finding of insubordination, Captain Coyne
initially considered taking Plaintiff to court-martial, but he
determined that a "Captain's Mast," a form of non-judicial
punishment under Article 15 of the Uniform Code of Military
Justice ("UCMJ"), would be appropriate. See Coyne Dep. at
147-48 (testifying that as a commanding officer he had various
options for discipline, such as "various sorts of letters and/or
court martial." Id. at 154:6-10.) As a result, Rev. Veitch was
charged with "disrespect towards a superior commissioned officer
for e-mails from September 2, 1998, through February 8, 1999,
sent to Captain Buchmiller that showed "marked disdain,
insolence, and contempt" under Article 89 of the UCMJ and for
"failure to go to appointed place of duty" for absences on August
14, 1998, October 9 and 29, 1998, and November 30, 1998, under
Article 86.*fn4 Veitch Dep. at 423-24, 426-27, Ex. 19.
After consulting with counsel, Veitch refused the Captain's Mast.
Veitch Dep. at 434-35. Captain Coyne then decided to pursue the
charges through court-martial proceedings. See, e.g., Coyne
Decl. ¶ 4.
In anticipation of the court-martial, Plaintiff was removed
from his preaching duties, Coyne Dep. at 102, and reassigned
duties at the Family Service Center. Veitch Dep. at 454.
Veitch's fitness report prepared by Captain Coyne stated that
Plaintiff was "unwilling to adapt to military requirements. . . .
Continues to create friction within the chapel community. [Was]
[u]nwilling to work with other chaplains. Uses religious
persecution as an excuse for poor performance. . . . [Was]
[d]etrimental to command mission accomplishment. Was removed from
pulpit for failure to preach pluralism among religions."
Veitch's Fitness Report, June 15, 1999. Captain Coyne
recommended that Veitch be separated as unfit to be a Navy
Chaplain. Id. In his deposition, Captain Coyne in retrospect
explained that his removal of Rev. Veitch from his pulpit was
entirely based on his concern that Plaintiff would use the pulpit
to launch personal attacks not only on Captain Buchmiller but
also on other chaplains and servicemen and to denigrate other
religious beliefs. Coyne Dep. at 89-90, 102:4-9. Captain Coyne
believed that "the theoretical disputes between Captain
Buchmiller and Commander Veitch . . . under no circumstances
would . . . justify the tone and the demeanor of the e-mails that
Commander Veitch sent to Captain Buchmiller." Coyne Dep. at
182:24-183:5. Lieutenant Commander Hendricks explained that
although the "Navy does not dictate what chaplains preach in the
context of their sermons," chaplains must exercise decorum and
courtesy in addressing others as needed to maintain "good order
and discipline in that command." Hendricks Dep. at 83. The events preceding Plaintiff's actual separation unfolded as
follows. After initially requesting a court martial in lieu of
the non-judicial Captain's Mast, Rev. Veitch, with the advice of
his assigned Navy JAG counsel, resigned his commission. First
Am. Compl. at ¶ 25. Plaintiff testified that the JAG attorney
told him that resignation was one of his options to avoid the
overseas court-martial. See Veitch Dep. at 424-26. Following
Veitch's resignation, Captain Coyne terminated the court-martial
charges, instead issuing a Nonpunitive Letter of Caution, dated
April 8, 1999. Coyne Decl. ¶ 5. In April 1999, shortly after he
submitted his request for resignation, Plaintiff requested that
the Department of Defense (DOD) Inspector General (IG)
investigate the circumstances surrounding his resignation. See
DOD Investigation; First Am. Compl. ¶ 27. Plaintiff's complaint
alleged that his resignation was coerced and that Chaplain
Buchmiller had created a culture of religious prejudice and
oppression against him and the evangelical faith groups at
Naples. Id. In May of 1999, DOD IG reported that it would
investigate Plaintiff's complaint. See, e.g., First Am. Compl.
On May 17, 1999, Plaintiff's resignation was approved with a
November 1999 separation date. In June of 1999, Captain Coyne's
tour of duty as the Commanding Office at Naples ended and he was
relieved by Captain B.J. Gray. Coyne Decl. at ¶ 6. On July 23,
1999, Plaintiff wrote a letter to the Secretary of the Navy, via
the new Commanding Officer, Captain Gray, and the Chief of Naval
Personnel, requesting to withdraw his resignation and claiming
that his March 1999 resignation was coerced. Veitch Dep. at
456-57, Ex. 24. Captain Gray forwarded Plaintiff's withdrawal
request, strongly recommending disapproval. Gray Decl. ¶ 3. In
early November of 1999, the Office of the Secretary of the Navy
ordered Plaintiff's resignation orders held in abeyance pending
the outcome of the DOD IG's investigation into his reprisal
complaint. First Am. Compl. ¶¶ 31-32. The Inspector General investigation
was completed on May 23, 2000, concluding that Plaintiff's
"disciplinary problems . . . resulted from his own misconduct"
and that his allegations of reprisal were unsubstantiated. See
Gott Dep. at 20-22, Ex. 1. Plaintiff was informed that the DOD
IG did not find impropriety on the part of the Navy. Veitch
Dep. at 475-76, Ex. 33. The DOD IG investigation report contains
a statement made by Captain Coyne that it was his "judgment that
[the] letter of resignation coupled with the nonpunitive letter
was sufficient punishment for what [Veitch] had done." DOD
Investigation, at 26.
On September 30, 2000, Plaintiff was separated from the Navy.
Veitch Dep. at 493. On November 21, 2000, Plaintiff received
his leave payment from the Navy. Veitch Dep. at 480:21-481:1.
On December 13, 2000, Plaintiff filed his complaint in this Court
for declaratory and equitable relief and moved for a preliminary
injunction, requesting, inter alia, that this court order the
Navy to pay Plaintiff for the alleged unused leave remaining when
he was separated from active duty. In December 2000, Defendants
mailed a check for payment of unused leave to Plaintiff. Argall
On February 27, 2001, this Court denied Plaintiff's motion for
a preliminary injunction, holding that Plaintiff failed to
demonstrate that he would suffer irreparable harm if his motion
were denied, and that Plaintiff had not demonstrated that he had
a substantial likelihood of success on the merits of his claims.
Veitch v. Danzig, 135 F. Supp. 2d 32 (D.D.C. 2001).
I. SUMMARY JUDGMENT PRINCIPLES
Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c). In this case, the parties have filed cross-motions for
summary judgment, and they disagree on some facts pertaining to
their differing legal theories. Cross-motions for summary
judgment do not alone warrant granting summary judgment unless
one of the parties is entitled to judgment as a matter of law on
facts that are not genuinely disputed,
(1) because a party entitled to summary judgment must
bear the burden of establishing the indisputability
of the facts which warrant judgment in his favor; (2)
while the facts, which would justify judgment for one
party on a particular legal theory, may be
indisputable, the facts, which would justify judgment
for the adverse party on a different legal theory,
may be disputed; and (3) a party may make concessions
for the purpose of his motion that do not carry over
and support the motion of his adversary.
Volunteer State Life Ins. Co. v. Henson, 234 F. 2d 535
(5th Cir. 1956) (citing 6 Moore's Federal Practice, 2d ed. 2092,
Par. 56.13.); see Bricklayers, Masons and Plasterers Int'l Union
of America v. Stuart Plastering Co., 512 F. 2d 1017
, 1023 (5th
Cir. 1975) ("The rationale for this rule . . . is that each party
moving for summary judgment may do so on different legal theories
dependent on different constellations of material facts."). Thus,
when deciding cross-motions for summary judgment, the court "must
evaluate each motion on its own merits and view all facts and
inferences in the light most favorable to the nonmoving party."
Westfield Ins. Co. v. Tech Dry, Inc., 336 F. 3d 503, 506 (6th
Summary judgment is regarded as "an integral part of the
Federal Rules as a whole, which are designed `to secure the just,
speedy and inexpensive determination of every action.'" Celotex
Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 2555
(1986) (quoting FED. R. CIV. P. 1.). The court must view the
evidence and draw all reasonable inferences in favor of the
non-moving party, and determine "whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 259,
106 S. Ct. 2505, 2516 (1986) (internal citation omitted). "Where the record
taken as a whole could not lead a rational trier of fact to find
for the non-moving party, there is no `genuine issue for trial.'"
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986) (internal citation
omitted). Furthermore, Rule 56 requires that a plaintiff, "in
advance of trial and after a motion for summary judgment has been
filed . . . come forward with some minimal facts to show that the
defendant may be liable under the claims alleged." Sharafeldin
v. Md. Dep't of Pub. Safety and Corr. Servs.,
131 F. Supp. 2d 730, 736 (D. Md. 2001), aff'd 21 Fed. Appx. 227, 2001 (4th Cir.
2001) (unpublished opinion). If the nonmoving party "fail[s] to
make a sufficient showing on an essential element of her case
with respect to which she has the burden of proof," then "the
plain language of Rule 56(c) mandates the entry of summary
judgment." Celotex Corp., 477 U.S. at 322-23. "Moreover, only
disputed issues of material fact, determined by reference to
the applicable substantive law, will preclude the entry of
summary judgment." Sharafeldin, 131 F. Supp. 2d at 736.
"Factual disputes that are irrelevant or unnecessary will not be
counted." Anderson, 477 U.S. at 248.
Applying these principles to the facts of this case, the court
has concluded that Defendants' motion for summary judgement must
be granted because Plaintiff has failed to show Defendants'
liability for the claims alleged as explained below.
II. CONSTRUCTIVE DISCHARGE VERSUS VOLUNTARY RESIGNATION
The threshold issue in this case is whether Plaintiff's
resignation was voluntary or coerced, as his standing to seek relief in this court is
contingent on the court's finding of constructive discharge. See
Taylor v. Fed. Deposit Ins. Corp., 132 F. 3d 753, 767 (D.C. Cir.
1997); Kim v. United States, 47 Fed. Cl. 493, 497 (2000). The
court examines all the facts and circumstances in order to
determine whether a specific resignation or retirement qualifies
as voluntary. See McIntyre v. United States, 30 Fed. Cl. 207,
211 (1993). Generally, resignations are presumed to be voluntary.
See, e.g., Kim, 47 Fed. Cl. at 497. "The presumption of
voluntariness, however, can be rebutted  by demonstrating that
the government caused the plaintiff to resign under threat of
duress or by other coercion,  by demonstrating that the
government intentionally misrepresented information relied on to
the plaintiff's detriment, or  by showing that the plaintiff
tried to withdraw his resignation before its effective
date. . . ." McIntyre, 30 Fed. Cl. at 211; see Bergman
v. United States, 28 Fed. Cl. 580, 585 (1993); Christie v.
United States, 207 Ct. Cl. 333, 337-41, 518 F.2d 584, 587-88
In the present case, Plaintiff argues that he was
constructively discharged because of intolerable work conditions
created by Captain Buchmiller along with some other chaplains,
alleging that the religious hostility towards Evangelical
Protestants was intolerable and that Chaplain Buchmiller's
"policy, program and practice of religious discrimination and
personal prejudice made plaintiff's working conditions
oppressive, intolerable and corrosive." First Am. Compl. ¶ 75.
Plaintiff's additional theory is premised on his allegation of
duress that rendered his resignation involuntary. Plaintiff
argues that he was constructively discharged because Chaplain
Buchmiller along with some other chaplains coerced him into
resignation by preventing him from preaching strictly the tenets
of his religion and directing him to "preach pluralism among
religions." He claims that the Navy coerced him into resigning by
threatening him with court-martial, and, alternatively, alleging that he was misled
into resigning because the charge underlying the court-martial
disrespect toward a superior commissioned officer in violation of
UCMJ Article 89 was unconstitutional and otherwise legally
unsupportable. Pl. Br. in Supp. of Opp'n and Cross-Mot. for
Summ. J., at 33. The court will address these theories and
further examine all other facts and circumstances that Plaintiff
argues coerced him into resignation.
a. Plaintiff's Claim of Intolerable Work Conditions
To establish constructive discharge based on religious
hostility or discrimination, the plaintiffs must not only show
acts of discrimination, "but also that the employer deliberately
made work conditions intolerable, leading the employee to quit
involuntarily." See Adair v. England, 183 F. Supp. 2d 31, 67
(D.D.C. 2002) (considering the pleading requirements for
individual Navy chaplains' claims of constructive discharge).
Although the case law addressing the theory of intolerable work
conditions involves civilian workers bringing Title VII
discrimination claims,*fn5 the standards articulated in
those cases are instructive.
In deciding whether a work environment is hostile, courts have
looked at the totality of circumstances from a reasonable person
perspective and from the plaintiff's subjective perspective.
See, e.g., Mungin v. Katten Muchin & Zavis, 116 F. 3d 1549,
1558 (D.C. Cir. 1997) (A constructive discharge requires "a
finding of discrimination and the existence of certain
`aggravating factors' . . . that would force an employee to
leave."); Taylor, 132 F. 3d at 766 ("[A] constructive discharge
occurs where the employer creates or tolerates discriminatory
working conditions that would drive a reasonable person to resign.");
Goldmeier v. Allstate Ins. Co., 337 F. 3d 629, 635 (6th Cir.
2003); Hafford v. Seidner, 183 F. 3d 506, 512 (6th Cir. 1999);
Moore v. KUKA Welding Sys. & Robot Corp., 171 F. 3d 1073, 1080
(6th Cir. 1999); Kocsis v. Multi-Care Management, Inc.,
97 F. 3d 876, 887 (6th Cir. 1996). Such circumstances include "the
frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance." Harris v. Forklift Sys.,
510 U.S. 17, 23, 114 S. Ct. 367, 371 (1993); Conway-Jepsen v. Small
Business Admin., 303 F. Supp. 2d 1155, 1167 (D. Mt. 2004) (the
plaintiff, a female federal employee, established a Title VII
retaliation claim because she reasonably found her hostile
working conditions intolerable due to her supervisor's "lengthy,
continuous, and pervasive pattern of retaliatory treatment for
the reason that [the plaintiff] had objected to employment
practices which were unlawful under Title VII."). Furthermore, to
establish hostile work environment, the plaintiff must show that
the offending behavior was "sufficiently severe or pervasive to
alter the conditions of . . . [his] employment and create an
abusive working environment." Pa. State Police v. Suders,
124 S. Ct. 2342, 2347 (2004) (quoting Meritor Sav., FSB v. Vinson,
477 U.S. 57, 67, 106 S. Ct. 2399, 2405 (1986)).
In this case, Captain Buchmiller approached Veitch believing
that Plaintiff's sermons were improperly negative and undermined
the environment of pluralism enshrined in the rules of the Navy
Chaplain Corps. See, e.g, Chaplains Manual § 1202(5). For
instance, in one of his sermons, Veitch allegedly preached that
there were unregenerate clergy in the Chaplain Corps. See
Prelim. Inquiry EEO Complaint, at 2, 5. Plaintiff admitted that
Captain Buchmiller criticized his sermons only on a few
occasions, and there are no indicia of religious animosity toward Plaintiff in Captain Buchmiller's e-mails. Furthermore,
Plaintiff conceded that Captain Buchmiller neither mentioned the
issue of Sola Scriptura nor ever raised problems with any of
Plaintiff's sermons after November 13, 1998. Veitch Dep. at
398-99. Likewise, Captain Buchmiller stopped inquiring about
Plaintiff's plans to resign upon Plaintiff's request. Veitch
Dep. at 287:1-4. Plaintiff has not met his burden of proving
"intolerable" conditions that would have compelled a reasonable
person to resign because Captain Buchmiller's actions were not
"severe or pervasive" considering the totality of
circumstances.*fn6 See Suders, 124 S. Ct. at 2347, 2357
(holding that there were genuine issues of material fact
concerning the plaintiff's hostile work environment and
constructive discharge claims, where, inter alia, the
plaintiff's "male supervisors subjected her to a continuous
barrage of sexual harassment" until the time she resigned);
Conway-Jepsen, 303 F. Supp. 2d at 1161 (finding hostile
environment where the employer assigned numerous
"program-irrelevant" work projects to the plaintiff, made their
completion impossible by shutting down computers early, and
screamed and swore at the plaintiff for making clerical
In addition, the declarations and depositions by several
individuals mostly civilians involved in the Navy chapel as
members or workers at relevant times submitted by Plaintiff to
support his argument that the environment at the Chaplain Corps
under the leadership of Buchmiller was hostile toward
evangelicals, do not furnish any concrete descriptions of that environment. These declarations provide purely subjective
feelings of those individuals without establishing an objective
basis for their experience of hostility. No other facts point to
"intolerable" work conditions that would force a reasonable
person to resign. See Mungin, 116 F. 3d at 1558. Therefore,
Plaintiff did not demonstrate a triable issue of hostile work
b. Plaintiff's Claim of Duress
In order to prove duress, the plaintiff must establish "(1)
that one side involuntarily accepted the terms of another; (2)
that circumstances permitted no other alternative; and (3) that
said circumstances were the result of coercive acts of the
opposite party." Pitt v. United States, 420 F. 2d 1028, 1032
(Ct.Cl. 1970) (internal citation omitted); see Brown v. United
States, 30 Fed. Cl. 227, 229-30 (Fed.Cl. 1993) (finding
voluntary resignation where the plaintiff, a former Army service
member, 1) chose the conditions of his resignation; 2) had the
alternative of appearing before a court-martial and facing the
impending charges against him; and 3) "[did] not dispute that he
was court-martialed for the legitimate purpose of imposing
criminal sanctions, rather than for the purpose of inducing his
resignation"); Kim, 47 Fed. Cl. at 494, 498-99 (finding
voluntary resignation where the plaintiff, a commissioned major
in the U.S. Army Medical Service Corps, had a reasonable
alternative to requesting retirement because she had the option
of challenging the allegedly improper elimination action by the
Army before a Board of Inquiry); but see Roscos v. United
States, 213 Ct. Cl. 34, 549 F.2d 1386, 1389 (1977) (finding that
the plaintiff's, an IRS employee's, retirement was involuntary
because the plaintiff's wrongful transfer to a distant city
coupled with the hardship to his family constituted
"unjustifiable coercive action by the Government" where it was
infeasible for the plaintiff to commute daily to a new work site and impractical for him to relocate because of
the indefinite resolution of his administrative appeal).
Plaintiff in this case claims that the Navy coerced him into
resignation by seeking to connect Captain Coyne's decision to
bring the charge of disrespect with Captain Buchmiller's alleged
acts of religious hostility or discrimination and to cast them as
a concerted effort by the Navy to induce Plaintiff's resignation.
Specifically, Plaintiff argues that he was coerced to resign
because 1) the "Navy's attempt to court-martial Chaplain Veitch
was an act of gross misconduct in that it had no foundation since
its underlying basis rested on [Commander] Zoeller's unlawful,
unconstitutional definition of pluralism," and that 2) "Captain
Coyne's Captain's Mast and his decision to bring Chaplain Veitch
to court-martial cannot have a legal effect" because the charge
underlying the court-martial was unconstitutional and otherwise
insupportable. Pl. Br. in Supp. of Opp'n and Cross-Mot. for
Summ. J., at 33-39.
The evidence on the record, however, abundantly shows that Rev.
Veitch was not charged with "disrespect toward a superior
commissioned officer" based on the doctrinal grounds that
underlay the dispute between Plaintiff and Captain Buchmiller.
Captain Coyne's objective was to discipline Rev. Veitch for his
disrespectful demeanor and failure to appear at appointed places.
Plaintiff did not contest the primary factual basis for the
disrespect charge, admitting that his emails to Captain
Buchmiller were sarcastic, deviating from "standard practice."
See Veitch Dep. at 330-33, 335-36. The charge of "disrespect
toward a superior commissioned officer" was based on Captain
Coyne's conclusion that Chaplain Veitch failed to treat another
chaplain of a higher rank with due respect.*fn7 See Coyne Dep. at 84, 184. In
addition, Plaintiff did not establish how this disciplinary
charge, based on the content of Plaintiff's e-mails to Captain
Buchmiller, is a reprisal for Plaintiff's EEO Complaint.
Furthermore, Commander Zoeller's phrase that Chaplain Veitch was
removed from his pulpit for "failure to preach pluralism" is not
a completely accurate description of the reason for Plaintiff's
removal from the pulpit. The record shows that Captain Buchmiller
criticized Plaintiff's sermons for denigrating other chaplains
and did not instruct or direct Plaintiff to "preach pluralism" or
any other doctrine. In fact, this inept phrase appeared in the
fitness report completed by Captain Coyne after he learned
about the e-mail correspondence between Plaintiff and Captain
Buchmiller and decided that Chaplain Veitch should be disciplined
for his disrespectful demeanor. See Veitch's Fitness Report,
June 15, 1999. Plaintiff's claim that he was not allowed to
preach in a certain manner, which arguably violated the Navy's
policy of pluralism, see, e.g, Chaplains Manual § 1202(5), does
not exonerate Plaintiff from his failure to respect a fellow
chaplain who was senior in rank.
Considering Plaintiff's claim that bringing a chaplain to
court-martial under Article 89 is unconstitutional or otherwise
illegal, the court believes that there cannot be a rule that it
is always unconstitutional to charge a chaplain with disrespect
toward a superior commissioned officer. The court's conclusion in
Rigdon v. Perry that a Navy chaplain could not be a "superior commissioned officer" in the context of the Article 89 was stated
in dictum, and the constitutionality of subjecting chaplains to
military discipline has not been directly addressed by a higher
court. See 962 F. Supp. 150, 158-59 (D.D.C. 1987). Nonetheless,
the Second Circuit held that an independent civilian chaplaincy
would not be a feasible alternative to the existing Chaplain
Corps because, inter alia, there was no evidence that "civilian
chaplains would accept military discipline, which is essential
to the efficient operation of our armed forces." Katcoff v.
Marsh, 755 F. 2d 223, 236 (2d Cir. 1985) (emphasis added); see
also In re England, Sec'y of the Navy, 375 F. 3d 1169, 1171
(D.C. Cir. 2004) (observing that a Navy chaplain has a "unique"
role within the service, "involving simultaneous service as
clergy . . . and as a commissioned naval officer.").
Furthermore, in this case, Plaintiff's claim that the
court-martial was illegal or unconstitutional is not dispositive
for Plaintiff's claim of constructive discharge because Plaintiff
admitted that his decision to resign was motivated by his desire
to avoid the court-martial proceeding. First Am. Compl., ¶ 25.
See Pitt, 420 F. 2d at 1032-33 (finding that the plaintiff
resigned voluntarily even though the underlying court-martial was
unconstitutional because the plaintiff's "predominant purpose"
was "to defeat court-martial jurisdiction by severing his
employment connection with the Army.").*fn8 In addition, no
evidence in the record suggests that at the time of his
resignation, Rev. Veitch thought that the charge of disrespect
was unconstitutional. See Veitch Dep. at 335-36, 344-45, 421.
Importantly, Plaintiff had two reasonable alternatives to
resignation, a Captain's Mast or the court-martial. See e.g.,
Brown, 30 Fed. Cl. at 230-31; Pitt, 420 F. 2d at 1034.
Plaintiff's argument that remaining in the Navy and fighting the
disrespect charge would have been futile and, therefore, the
court-martial was not a reasonable alternative to resignation is
without merit. As commissioned officers, chaplains are subject to
the court-martial jurisdiction, see Coppedge v. Marsh,*fn9
532 F. Supp. 423 (D.C. Kan. 1982), and even though military
courts do not have the expertise to consider certain
constitutional claims, those constitutional claims can be raised
during court-martial proceedings. See, e.g., Schlesinger v.
Councilman, 420 U.S. 738, 759-60, 95 S. Ct. 1300, 1313-14
(1975); Noyd v. Bond, 395 U.S. 683, 696 n. 8, 89 S. Ct. 1876,
1884 n. 8 (1969).
Finally, no facts point to the possibility that the Navy
intentionally misrepresented information relied on to Plaintiff's
detriment. See Bergman, 28 Fed. Cl. at 587-88. Plaintiff had
the opportunity to obtain the advice of counsel from the time he
was charged with Article 89. Thus, he refused the option of a
Captain's Mast and subsequently resigned to avoid the
court-martial after having consulted with counsel.
c. Other Factors of Voluntariness
Under certain circumstances, the presumption of voluntariness
can be rebutted by Plaintiff's showing that he tried to withdraw
his resignation before its effective date. See Brown, 30 Fed.
Cl. at 230-31; Cunningham v. United States, 423 F. 2d 1379,
1384-85 (Ct.Cl. 1970). Furthermore, the agency has to exercise a
"discernible" discretion in denying the withdrawal of a
resignation. Cunningham, 423 F. 2d at 1384-85 (holding that a
civilian Air Force employee's resignation was involuntary, where,
two weeks prior to the effective date of the employee's
resignation, the Air Force denied her request to withdraw her
resignation, unilaterally deciding that it did not consider the
withdrawal of the resignation to the mutual advantage of the
employee and the Air Force). "The court's power to review a
military department's decision is limited to determining whether
the action was improper because it was `arbitrary, capricious, or
in bad faith, or unsupported by substantial evidence, or contrary
to law, regulation or mandatory published procedure' of a
substantive nature by which plaintiff has been severely
prejudiced.'" Gallucci v. United States, 41 Fed. Cl. 631, 642
(Fed.Cl. 1998) (quoting McIntyre, 30 Fed. Cl. at 213).
In the present case, Plaintiff claims that the Navy's refusal
to accept his withdrawal of the resignation was arbitrary and
capricious. Plaintiff filed his request for withdrawal prior to
the effective date of his resignation; however, the Navy, unlike
the defendant in Cunningham, ordered Plaintiff's resignation
order held in abeyance pending the outcome of the DOD IG's
investigation into Veitch's reprisal complaint. See
423 F. 2d at 1384-85. Only after the DOD IG had completed its
investigation, finding that Plaintiff's "disciplinary problems . . .
resulted from his own misconduct" and that his allegations of reprisal were
unsubstantiated, was Plaintiff finally separated. See Gott Dep.
at 20-22, Ex. 1. Thus, there was a discernible exercise of
discretion by the Navy to suspend Plaintiff's separation awaiting
the outcome of DOD IG's investigation.
Plaintiff, however, claims that the conclusions of the DOD IG's
investigation into his allegations of religious repression and
prejudice were superficial, allegedly omitting Plaintiff's
allegations of religious repression and prejudice; "not
interviewing identified witnesses; not addressing the trivial and
unexamined nature of the charges brought against plaintiff, or
even if there were a basis in fact or in law for the charges."
First Am. Compl. ¶ 34. It should be noted that the DOD IG's
investigation did not specifically concern the voluntariness of
Plaintiff's resignation. Cf. Cunningham, 423 F. 2d at 1382-85
(finding that in considering the plaintiff `s request for a
grievance hearing to determine the voluntariness of her
resignation, the grievance committee conducted an insufficient
investigation into the plaintiff's resignation).*fn10 The
DOD IG conducted the investigation under
10 U.S.C. § 1034,*fn11 into Plaintiff's allegations that in reprisal for
making certain protected communications, he was relieved of his
duties as a Navy chaplain and assigned duties at the Family
Service Center. See Letter from IG to Veitch, May 23, 2000,
DOD Investigation. The DOD IG found that responsible officials
did not retaliate against Rev. Veitch for making protected
communications. Id. The DOD IG investigator interviewed Rev. Veitch, identified relevant personnel actions, interviewed
"responsible military officers" for each personnel action, and
interviewed relevant witnesses identified by Plaintiff. The
investigation did not attempt to determine if the e-mails that
Chaplain Veitch sent to Captain Buchmiller were sufficiently
disrespectful to warrant Captain's Mast or court-martial because
Captain Coyne, as Commanding Officer, "was the one to make that
decision." Id. at 22 n. 15. Even though the investigator found
that it was due to Plaintiff's EEO Complaint that Captain Coyne
decided to look at Chaplain Veitch's competency to be a military
chaplain, the reprisal charges were not supported because by that
time Captain Coyne had issued Rev. Veitch an adverse fitness
report and had received the EEO Complaint investigation
report*fn12 indicating that the complaint was
unsubstantiated and possibly frivolous. Id. at 23. The DOD IG
noted that given the tone of Rev. Veitch's e-mails to Captain
Buchmiller, it was possible that Captain Coyne realized that he
needed to look more closely at Chaplain Veitch's demeanor. Id.
Importantly, Plaintiff did not demonstrate how the DOD IG's
findings were contrary to law. While the scope of the DOD IG
investigation was limited as mandated by the relevant statute,
the DOD IG investigation was not arbitrary or capricious, and its
conclusions will not be upset by this court.*fn13 In sum, Plaintiff had a reasonable alternative to resignation
to appear before the courtmartial and raise his defenses against
the charge of disrespect. Plaintiff was also offered an
opportunity to resolve the disrespect charge through the
non-judicial Captain's Mast. Plaintiff has not sufficiently
established that he resigned because of Defendant's coercive
actions, illegal actions, or an intolerable work environment.
See, e.g., McIntyre, 30 Fed. Cl. at 211.
III. PLAINTIFF'S REMAINING CLAIMS
Defendants argue that because Plaintiff has voluntarily
resigned from the Navy and is no longer subject to the alleged
unlawful practices of the Navy Chaplain Corps, Plaintiff lacks
standing to seek declaratory and injunctive relief to challenge
the Navy's activities. Federal courts are limited to issuing
decisions that resolve an actual "case or controversy." See
U.S. CONST. art. III, § 2. Standing is one of the "essential"
elements of the "case or controversy" requirement. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136
(1992) (The plaintiff bears the burden of establishing
standing.). In order to establish standing, Plaintiff must demonstrate (1) an "injury in fact," which
requires Plaintiff to show "an invasion of a legally protected
interest that is `(a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical,' . . . (2) a causal
relationship between the injury and the challenged conduct, . . .
[i.e.] the injury `fairly can be traced to the challenged action
of the defendant,' and has not resulted `from the independent
action of some third party not before the court,' . . . and (3) a
likelihood that the injury will be redressed by a favorable
decision." Northeastern Fla. Chapter of Associated Gen.
Contractors of Am. v. City of Jacksonville, 508 U.S. 656,
663-65, 113 S. Ct. 2297, 2301-02 (1993) (internal citations
omitted). Importantly, a plaintiff seeking prospective relief,
such as declaratory or injunctive relief in this case, must show
more than a "past injury"; he must demonstrate that he is
"realistically threatened by a repetition" of the alleged
violation in the future. See City of Los Angeles v. Lyons,
461 U.S. 95, 109, 124, 103 S. Ct. 1660, 1669, 1676 (1983).
In this action, Plaintiff seeks declaratory and injunctive
relief. See First Am. Compl. at 27-29. Plaintiff asks this
court, inter alia, to declare that the Navy illegally
discharged him and "[b]urdened, suppressed and interfered with
plaintiff's religious beliefs and expression of those beliefs in
violation of the Constitution, [the] RFRA, 10 U.S.C. § 6031, the
Civil Rights Act and other federal laws" and that the court order
"the Navy to take immediate and permanent steps to end and to
remedy the Navy's prejudice and bias against evangelical
chaplains and evangelical faith groups in general and at Naples
in particular." First Am. Compl. at 28. However, Plaintiff is
no longer in the Navy because of his voluntary resignation and is
not facing any "real and immediate" injury "as the result of the
challenged official conduct." See, e.g., Lyons,
461 U.S. at 102. The District of Columbia Circuit has held that even where a
plaintiff voluntarily chose to remove himself from active status
in the Navy, the justiciability of his claimed constitutional
violations that preceded his decision to retire was not affected.
See Emory v. Sec'y of Navy, 819 F.2d 291, 294 (D.C. Cir. 1987)
(holding that the district court could not dismiss the
plaintiff's claim for lack of subject matter
jurisdiction).*fn14 The court of appeals explained that even
though the district court lacked the authority to order that the
plaintiff, a retired naval reserve medical corps captain, be
promoted retroactively to a rank he sought, the district court
had jurisdiction to consider the plaintiff's constitutional
claims, noting that the district court had the power to fashion
some relief if it determined that the plaintiff's claim was
meritorious. Id. at 294.
However, in Taylor v. Fed. Deposit Insurance Corp., the
District of Columbia Circuit held that a finding against a claim
of constructive discharge necessarily denies a plaintiff the
element of causation required to establish his standing to seek
reinstatement based on his First Amendment claim, and the
plaintiff's voluntary resignation moots his request for a
permanent injunction against future retaliation by eliminating
the possibility of future harm and the utility of the injunction.
132 F. 3d at 767-68. The facts in this case are closer to those
in Taylor than in Emory. Plaintiff here lacks standing to
seek reinstatement as a remedy because his injury, his separation
from the service, was not caused by the Navy. See Allen v.
Wright, 468 U.S. 737, 751, 104 S. Ct. 3315, 3324 (1984) (stating
that to establish standing, "[a] plaintiff must allege personal
injury fairly traceable to the defendant's allegedly unlawful
conduct and likely to be redressed by the requested relief.").
Even had the Navy violated Plaintiff's First Amendment or equal protection rights, the court can not decide this issue as
Plaintiff has no standing because of his own action. Cf.
Taylor, 132 F. 3d at 767 ("In requesting reinstatement,
[plaintiffs] seek a remedy for injury that is in large part
self-inflicted. This is true whether we treat the defect as a
matter of standing or the merits."). Because Plaintiff left the
Navy on his own accord, the court lacks jurisdiction over the
remaining claims in this case. CONCLUSION
Because Plaintiff did not meet his burden of rebutting the
presumption of voluntariness of his resignation in this case and
did not show any material dispute as to his claim of constructive
discharge, the court lacks jurisdiction over his remaining claims
based on his service in the military.
Accordingly, it is hereby
ORDERED that Defendants' motion for summary judgment is
It is further
ORDERED that Plaintiff's cross-motion for summary judgment is
A separate Order accompanies this Memorandum Opinion.