ELAINE D. KAPLAN, Judge.
The plaintiff in this action is Gordon James Klingenschmitt (hereinafter "Dr. Klingenschmitt" or "plaintiff"), a former Navy chaplain. Dr. Klingenschmitt contends that the Navy acted unlawfully and in violation of his constitutional rights when it discharged him from the Navy after declining to recertify him as a chaplain in the wake of his loss of his existing ecclesiastical endorsement. He argues that his separation was unlawful and requests that the Court award him back pay, reinstatement, correction of his military records, and attorney's fees.
Incident to his wrongful discharge claim, Dr. Klingenschmitt challenges the decisions of the Board of Correction of Naval Records ("BCNR" or "Board") denying his request to remove two fitness reports from his naval records which he contends were the product of discrimination and retaliation by his superior officers. He also mounts a collateral attack on his court-martial conviction, which served as one of the bases for the Navy's decision not to recertify him as a chaplain. In addition, his complaint raises a variety of claims under other constitutional or statutory provisions: the First Amendment; the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb; the Military Whistleblower Protection Act ("MWPA"), 10 U.S.C. § 1034; and 10 U.S.C. § 6031(a) (providing that "[a]n officer in the Chaplain Corps may conduct public worship according to the manner and forms of the church of which he is a member").
Before the Court is the government's motion to dismiss pursuant to the Rules of the Court of the Federal Claims ("RCFC") 12(b)(1) and 12(b)(6), and in the alternative, for judgment upon the administrative record and plaintiff's cross motion for judgment on the administrative record. For the reasons stated below, the government's motion to dismiss for failure to state a claim is
Dr. Klingenschmitt was a Cadet in the United States Air Force Academy from July 1, 1986 to May 28, 1991. Administrative Record ("AR") 1933.
On September 3, 2002, Dr. Klingenschmitt transferred from the Air Force to the Navy and began his career as a Navy chaplain, with an ecclesiastical endorsement
Dr. Klingenschmitt's complaint alleges that beginning with his time in chaplain school he felt pressured by his superiors "to censor the content of his public prayers if offered outside of Sunday chapel." Compl. ¶ IX. In Dr. Klingenschmitt's complaint and his briefs, he focuses in particular upon his superiors' reaction to a sermon he delivered at a June 26, 2004 memorial service for a recently deceased Anzio crew member. Compl. ¶ XII.
Following the memorial service, Captain Carr, the commanding officer of the Anzio, received "no fewer than two dozen specific verbal and written complaints from Sailors and family members who attended the service." AR 2138. In the days following the memorial service, Captain Carr and Dr. Klingenschmitt apparently discussed the sermon and the concerns that had been raised by attendees of the event. AR 2139;
In an email responding to Dr. Klingenschmitt, the Captain stated that he did not think that the "disconnect in communication was as simple as a choice of word . . . service vs. ceremony." AR 2358. "Our disconnect," he stated, "is far more profound than you appear to have registered after our conversation." AR 2358. Thus, he continued, "[a]s I have told you many, many times. . . and you have acknowledged many, many times. I will not presume to advise you how to provide pastorship to `your flock.'" AR 2358. He further stated that "I will insist that you refrain from intrusive counseling and pastorship, keeping your message to those who will receive it willingly." AR 2358. The Captain stated that "I have far too many complaints from Sailors who do not appreciate the strident and negative message they perceive you to be delivering." AR 2358.
The email also alluded to previous communication between Dr. Klingenschmitt and Captain Carr. According to Captain Carr: "I have asked you to assist me in `inspiring Sailors to reach for their better selves' no matter what faith or belief system they practice. I have asked you to deliver a more ecumenical message. You finally told me yesterday that there is a limit to the `compromises you can make' in your message to make it more ecumenical." AR 2358. Captain Carr concluded the email by suggesting he may "need to educate [himself] as to what compromises are reasonable for [him] to ask and expect [of Dr. Klingenschmitt] in order for [his] Sailors to receive the inspiring pastorship [he] would hope for them to receive." AR 2358.
On July 7, 2004, Captain Carr issued a "letter of instruction" to Dr. Klingenschmitt. AR 2340. The letter of instruction "called Lieutenant Klingenschmitt's attention to a number of professional performance deficiencies both in his conduct as an officer and in his accomplishment of the command religious ministries program mission." AR 2340.
Also in July 2004, Captain Carr conducted a command survey of the religious ministries program. AR 2118. Of the 215 crew members who completed the survey, eighty provided written comments. AR 2119. The majority of the comments (about 70%) were negative in nature. AR 2119. For example, comments included: "worst CHAP I have seen in 17 years," "would never seek counsel from CHAPS," and "he is one of the worst CHAPs I have seen." AR 2119.
In light of the results of the first survey, a second survey was conducted in November 2004. AR 2118. The record does not include the results of the second survey.
On January 31, 2005, Captain Carr issued Dr. Klingenschmitt a fitness report
The report included a number of positive comments about Dr. Klingenschmitt's performance. Among other things, it noted that Dr. Klingenschmitt had demonstrated a "professional and positive response to a command climate survey" and that he was "making progress in improving the appeal of this important program to a broader audience in ANZIO's crew." AR 1881.
The fitness report form also contains a "Promotion Recommendation" section. According to the Navy's regulations, there is a five-step promotion recommendation scale: "Significant Problems," "Progressing," "Promotable," "Must Promote," and "Early Promote." BUPERSINST 1610.10, Enclosure (2) at A12.
Dr. Klingenschmitt signed the evaluation acknowledging that he received the report and that he understood his right to make a statement in response to the evaluation. AR 1881. In the signature block, he indicated that he did not intend to submit a statement. AR 1881.
In May 2005, Dr. Klingenschmitt submitted an Article 138 Complaint of Wrongs against Captain Carr. AR 1429-33. Among other things, Dr. Klingenschmitt alleged that Captain Carr had discriminated against him on the basis of his personal religious beliefs and the practices of his religious denomination; that the decline in the promotion recommendation in his January 31, 2005 fitness report (from "Early Promote" to "Must Promote") was "for religious reasons" and based on false written statements; and that Captain Carr had censored Christian prayers and "grant[ed] full government endorsement (and enforced religious conformity) to the non-Christian Unitarian Universalist faith of `Pluralism.'" AR 1430.
The Commander of Navy Region Mid-Atlantic investigated Dr. Klingenschmitt's complaint and, in an extensive and detailed report of findings, concluded that there was no merit to his allegations. AR 2129-46. He found that the declining fitness report was not a product of discrimination but was based on "Captain Carr's legitimate evaluation of [Dr. Klingenschmitt's] performance of duty," observing that "Lieutenant Klingenschmitt's level of effort to meet command expectations was a proper matter for Captain Carr to consider in evaluating Lieutenant Klingenschmitt's performance in his periodic fitness report." AR 2137, 2139. He also found that Dr. Klingenschmitt's allegations regarding the censorship of his prayers were without merit, because "no one, including Captain Carr, has told Lieutenant Klingenschmitt that he may not preach any Gospel message, or that he may only preach certain messages." AR 2139. The Commander further reasoned that the concerns Captain Carr expressed about the tone of the sermon that Dr. Klingenschmitt had delivered were supported by the feedback he had received, which indicated that the sermon "did not support the purpose of the memorial service, which was intended to pay respects to a deceased crewmember and console the crew." AR 2139. In particular, the report noted that "the impact Lieutenant Klingenschmitt's performance at the command memorial service had on command morale was a legitimate matter of concern to the Commanding Officer, and was a proper matter to consider in evaluating the officer's performance." AR 2139.
The investigative report was forwarded to the Deputy Assistant Secretary of the Navy for Military Personnel Policy. AR 2111. She concurred in the findings of Region Mid-Atlantic. AR 2111-28.
In April 2005, Dr. Klingenschmitt was transferred to Naval Station Norfolk.
It is unclear from the record whether Dr. Klingenschmitt's planned appearance on the Bill O'Reilly show ever took place.
Three days later, on behalf of Captain Pyle, the Commanding Officer of Naval Station Norfolk responded to Klingenschmitt's request for clarification. AR 881-83. The Commanding Officer stated that the order directed that he not wear his uniform for an appearance on the Bill O'Reilly show because "[i]t was clear the purpose of [Dr. Klingenschmitt's appearance] was to support personal or partisan views on political, social, and religious issues." AR 881. He explained that "[t]he order did not direct that you `may not wear (your) uniform in public if (you) talk about religion or if TV cameras may be present." AR 881. Instead, the Commanding Officer explained that the phrase "media appearances" as used in Captain Pyle's Order "meant interviews, press conferences, press availabilities, and similar events, like the scheduled interview on the Bill O'Reilly show, where you deliberately engage with the press to express personal views." AR 881. The Commanding Officer clarified that the uniform regulations "permit[] a member of the naval service to wear his or her uniform, without obtaining authorization in advance, incident to attending or participating in a bona fide religious service or observance." AR 882.
The Commanding Officer also responded to Dr. Klingenschmitt's request for permission to participate in uniform during the upcoming weekend at an event that Dr. Klingenschmitt had characterized as "bona fide public worship."
AR 882.
On January 7, 2006, Dr. Klingenschmitt participated in the event in Lafayette Park that he had described as a religious observance. AR 106. After saying a prayer at the event, Dr. Klingenschmitt walked away from the immediate area and, while still in the view of event participants and the media, removed identifiable portions of his Navy uniform. AR 106. He replaced them with a clerical collar before making statements to the press. AR 106.
Nearly one month after the event in Lafayette Park, on February 3, 2006, Dr. Klingenschmitt received his fitness report
The narrative in the fitness report contained negative comments concerning the lack of military bearing and professionalism allegedly exhibited by Dr. Klingenschmitt in connection with at least some of his advocacy activities. It noted that "while he exhibits enthusiasm and expends maximum effort in support of personal goals and convictions, he fails to meet standards in military bearing." AR 1869. With respect to the latter, Captain Pyle specifically noted the following:
AR 1869. Finally, Captain Pyle observed, Dr. Klingenschmitt "needs to improve his military bearing and professionalism in order to become a more effective Naval Officer." AR 1869;
Based on this evaluation, Captain Pyle's promotion recommendation designated Dr. Klingenschmitt "Promotable," a decline in rating from the prior fitness report. AR 1869;
On February 28, 2006, the Commanding Officer of Naval Station Norfolk issued Dr. Klingenschmitt a nonpunitive letter of caution. AR 1495-97. The letter stated that public statements on Dr. Klingenschmitt's website violated Article 89 of the UCMJ, "disrespect toward a senior commissioned officer." AR 1495. The letter referenced remarks Dr. Klingenschmitt made concerning the Chief of Navy Chaplains' official statements on public prayer in the Navy. AR 1495.
Dr. Klingenschmitt responded to the letter stating that "after a good-faith `review and scrub' I believe I've complied with your direction to censor and sanitize my web-site." AR 1498. Invoking the MWPA, Dr. Klingenschmitt warned that "[w]hile I consented this one time to modify the content of my communications to Congress, I shall not do so again." AR 1499. He noted that he "will respect rank, but never their abuse of power and religious harassment, of which I directly accuse them in my whistleblower reports."
On March 30, 2006, Dr. Klingenschmitt appeared in uniform at another event in Lafayette Park. AR 2, 612-625, 884-890. The event was organized as a form of protest against Navy policy, which the organizers characterized as prohibiting chaplains from "saying a Christian prayer ending with the phrase `through Jesus Christ our Lord,' while wearing a Navy uniform." AR 899. Dr. Klingenschmitt stood near the podium in uniform throughout the event and said at least one prayer during this event. AR 624-25, 629, 898. Prior and subsequent to the event and while in Navy uniform, Dr. Klingenschmitt distributed documents to members of the press and other attendees, including a document entitled "Remarks by Reverend Patrick Mahoney, speaking for Chaplain Klingenschmitt who cannot say everything he wants to while in uniform." AR 619-22, 677-80, 898-900. The "remarks" document characterized the event as a "press conference" and stated that Dr. Klingenschmitt was appearing in uniform so as to "intentionally" violate the orders of his superior officers. AR 899. The document indicated that Dr. Klingenschmitt "fully expect[ed]" to be punished for disobeying his superior's orders. AR 900.
Shortly thereafter, Dr. Klingenschmitt's expectations were realized. By Memorandum of April 27, 2006, Captain Pyle notified him that he was considering imposing non-judicial punishment on him for disobeying the order and the Navy's Uniform Regulations by appearing in uniform at the March 30th press conference in support of personal views on political or religious issues. AR 1520-22. Dr. Klingenschmitt exercised his right to refuse non-judicial punishment and demanded a trial by court-martial. AR 2274-75.
In the meantime, after the March 30, 2006 event, on April 4, 2006, Dr. Klingenschmitt filed a complaint with the Department of Defense Inspector General ("IG") alleging that personnel actions prohibited by 10 U.S.C. § 1034(b) had been taken against him.
On October 3, 2006, the IG's Director of Military Reprisal Investigations responded to Dr. Klingenschmitt's whistleblower complaint. AR 2236. She observed that she had conducted a preliminary inquiry in which she reviewed the documentation that Dr. Klingenschmitt had provided as well as documentation from other sources, and the testimony of knowledgeable witnesses. AR 2236.
The IG's office accordingly closed Dr. Klingenschmitt's case, advising him of his right to seek further review before the BCNR. AR 2337.
In the meantime, on August 3, 2006, Dr. Klingenschmitt was charged with one specification of a violation of 10 U.S.C. § 892, Article 92 of the UCMJ (failure to obey order or regulation).
Prior to trial, Dr. Klingenschmitt filed several motions, including two motions to dismiss. The first motion to dismiss was based on Dr. Klingenschmitt's contention that Captain Pyle's order was not lawful because, among other things, it was not specific and it was not in compliance with federal law, including the First Amendment. AR 1061-97. The military judge heard testimony and oral argument but denied Dr. Klingenschmitt's motion, ruling that the order was specific and not in violation of established law or the First Amendment. AR 1583-86. The military judge also denied Dr. Klingenschmitt's second motion to dismiss, in which he argued that Rear Admiral F.R. Ruehe, Commander Navy Region Mid-Atlantic, improperly acted as the convening authority for the court-martial because he allegedly had a personal interest in the outcome of the case. AR 1152-71, 1775-77.
On September 13, 2006, after hearing testimony, the court-martial members found Dr. Klingenschmitt guilty of violating one specification of Article 92. AR 769-70, 1899-1900. The members sentenced Dr. Klingenschmitt to the forfeiture of $250 in pay per month for twelve months and a reprimand. AR 1899-1900. The members unanimously recommended that the forfeiture of pay be suspended for twelve months. AR 851. Immediately following his conviction and sentence, Dr. Klingenschmitt was served two documents detailing his appellate rights. AR 854-55. Dr. Klingenschmitt signed the documents indicating that he understood his rights on appeal, and the military judge confirmed in court that Klingenschmitt understood his appellate rights. AR 24-30, 854-55, 1863-64.
On September 25, 2006, twelve days after his conviction, Dr. Klingenschmitt voluntarily tendered his resignation from the Evangelical Episcopal Church. AR 1894. On that same day, the Evangelical Episcopal Church notified the Chief of Naval Personnel that Dr. Klingenschmitt had lost his ecclesiastical endorsement, effective October 1, 2006. AR 1885. On September 28, 2006, the Chaplaincy of Full Gospel Churches executed an ecclesiastical endorsement for Dr. Klingenschmitt and transmitted a copy of that endorsement to the Chief of Navy Chaplains by facsimile on September 29, 2006. AR 2001-02.
By letter dated September 29, 2006, the Chief of Naval Personnel forwarded to Dr. Klingenschmitt a copy of the Evangelical Episcopal Church's September 25th letter withdrawing its endorsement of Dr. Klingenschmitt and a copy of the Chaplaincy of Full Gospel Churches September 29th endorsement of Dr. Klingenschmitt. AR 2000. The Chief of Naval Personnel advised Dr. Klingenschmitt that, pursuant to the requirements of DoDI 1304.28
Notwithstanding the letter from the Evangelical Episcopal Church documenting the withdrawal of its endorsement of Dr. Klingenschmitt (AR 1999), by letter to the Chief of Chaplains dated September 30, 2006, Dr. Klingenschmitt stated that he never "lost" his endorsement. AR 2004. He argued that, because the Navy had received a new endorsement, OPNAVINST 1120.9 required that he be promptly recertified. AR 1894, 2004. The Navy responded by letter dated October 4, 2006, and reiterated that Dr. Klingenschmitt's new endorsement from the Chaplaincy of Full Gospel Churches did not automatically qualify him to serve as a chaplain. AR 2007-09. That letter also noted that Dr. Klingenschmitt had the right to request that the Secretary approve his new ecclesiastical endorsement, and informed Dr. Klingenschmitt that if he availed himself of this option, the Chief of Chaplains would make a recommendation to the Secretary, who would ultimately make the final decision concerning Dr. Klingenschmitt's new ecclesiastical endorsement. AR 2008. The October 4th letter also informed Dr. Klingenschmitt that, pursuant to the mandatory requirements of DoDI 1304.28, ¶ 6.5, the Navy had initiated administrative action and convened a Chaplain Appointment and Recall Eligibility Advisory Group (CARE board) to separate him from the Navy because of the loss of his ecclesiastical endorsement. AR 2007.
On October 6, 2006, Dr. Klingenschmitt sent a letter to the Chief of Naval Personnel requesting all documents pertaining to his possible administrative separation from the Navy. AR 2011. Dr. Klingenschmitt also requested that the Navy allow him to retire in lieu of administrative separation. AR 2011. The Navy responded on October 11th, noting that all relevant materials had already been made available to Dr. Klingenschmitt and that Dr. Klingenschmitt was not entitled to retire as a matter of law, as he had not attained twenty years of creditable service. AR 2020-21.
Dr. Klingenschmitt submitted a formal request for approval of his endorsement from the Chaplaincy of Full Gospel Churches on October 14, 2006. AR 2023-24. The Chief of Navy Chaplains convened a CARE board to, among other things, make a written recommendation whether to recertify Dr. Klingenschmitt's "professional qualification upon receipt of a new ecclesiastical endorsement." AR 1980.
Both the Chief of Navy Chaplains and the Chief of Naval Personnel concurred with the CARE board's recommendation and further recommended to the Assistant Secretary of the Navy for Manpower and Reserve Affairs that Dr. Klingenschmitt's request for approval of his new endorsement be denied. AR 1977, 1882-83. The Assistant Secretary (acting on behalf of the Secretary) concurred.
On November 16, 2006, the Commander of the Navy Personnel Command informed Klingenschmitt that the Secretary had denied his request for approval of a new ecclesiastical endorsement pursuant to 10 U.S.C. § 643; DoDI 1304.28; and United States Department of the Navy, Secretary of Navy Instruction 1920.6C, Administrative Separation of Officers (15 Dec. 2005) [hereinafter SECNAVINST 1920.6C]. AR 1971-72. Among other things, the letter explained:
AR 1971. The letter also advised that the Secretary had ordered that Dr. Klingenschmitt be administratively separated from naval service and that Dr. Klingenschmitt separate by January 31, 2007, unless Dr. Klingenschmitt requested an earlier date of separation.
On October 25, 2006, the same day that the CARE board issued its recommendation to deny his recertification as a Navy chaplain, Dr. Klingenschmitt filed a complaint against the Secretary of the Navy in the United States District Court for the District of Columbia. Complaint,
The day after filing his complaint in the district court, Dr. Klingenschmitt also filed a motion for a temporary restraining order (TRO) and a motion for preliminary injunction (PI) to stop the separation proceedings against him. Emergency Motion for Temporary Restraining Order,
Thereafter, on January 24, 2007, Dr. Klingenschmitt filed a notice of appeal from the district court order denying his motion for a preliminary injunction. Notice of Appeal,
On August 21, 2007, the district court entered an order dismissing Dr. Klingenschmitt's complaint. Order Dismissing Case,
Dr. Klingenschmitt appealed the district court's decision and, on April 14, 2008, the Court of Appeals for the D.C. Circuit affirmed the district court's dismissal.
In the meantime, on December 22, 2006, while the district court action was pending, Dr. Klingenschmitt submitted matters in clemency to the court-martial convening authority pursuant to 10 U.S.C. § 860 and Rule for Courts-Martial 1105. AR 6-21. The Commander of Navy Region Mid-Atlantic considered Dr. Klingenschmitt's clemency matters, and, on January 2, 2007, he approved the court-martial sentence of a letter of reprimand but suspended the forfeitures for twelve months as recommended by the members of the court-martial. AR 2-3. The Commander of Navy Region Mid-Atlantic issued a written reprimand to Dr. Klingenschmitt on January 3, 2007 and, two days later, Dr. Klingenschmitt acknowledged receipt of the reprimand. AR 4-5.
On June 15, 2007, a Navy Force Judge Advocate reviewed Dr. Klingenschmitt's court-martial for error under 10 U.S.C. § 864. AR 2188-93. The judge advocate found that the findings and sentence were correct as to law and fact, and that no material error existed.
After his separation from the Navy, Dr. Klingenschmitt filed applications to the BCNR seeking the correction of his service record by removal of the two adverse fitness reports. AR 2365, 2278. Specifically, on February 11, 2008, Klingenschmitt requested that the BCNR "Delete/Remove the 18 Feb 05 fitness report signed by CAPT James Carr from [his] personnel record." AR 2365. He argued that the results of the January 2006 investigation of his grievances confirmed that Captain Carr had downgraded his evaluation "because I dared to quote `exclusive' Bible verses in the base chapel during one optionally-attended Christian memorial service, and I prayed publicly `in Jesus name.'" AR 2365. He alleged that the downgrade in the evaluation had violated his rights under the First Amendment and under 10 U.S.C. § 6031.
Before replying to Dr. Klingenschmitt, the BCNR sought an advisory opinion from Navy Personnel Command ("NPC"). AR 2420-21. Navy Personnel Command responded by stating that it did not find any error in the fitness report. AR 2406-07. It noted that Dr. Klingenschmitt's grievances challenging the fitness report had been found without merit, that the promotion recommendation of "Must Promote" did not equate to a finding of deficient performance, that the comments and performance trait marks assigned to a member are "at the discretion of the reporting senior," that BUPERSINST 1610.10, unlike BUPERSINST 1610.10A, did not provide a member relief for a declining fitness report, and that Dr. Klingenschmitt did not prove the report to be in error. AR 2406-07.
Dr. Klingenschmitt was allowed an opportunity to comment on NPC's advisory opinion. AR 2408-17. His response consisted essentially of a reiteration of his claims that his downgrading on the 2005 fitness report was punishment for the sermon he delivered at the 2004 memorial service. AR 2409. On June 6, 2008, the BCNR adopted the views of the advisory opinion and denied Dr. Klingenschmitt relief as to the January 2005 fitness report. AR 2315-16.
On January 23, 2009, Dr. Klingenschmitt again petitioned the BCNR, this time requesting that the Board "[r]emove [the] 3 Feb 06 fitness report signed by CAPT L.E. Pyle from [his] service record." AR 2278, 2281-91. Dr. Klingenschmitt argued that the fitness report was unlawful under the MWPA because it punished him for making what he characterized as "protected whistleblower communications" to the President and members of Congress. AR 2281. He also alleged that allowing the fitness report to remain in his record would "validate the religious harassment I experienced by the Chief of Navy Chaplains" and would violate "the spirit and letter of the U.S. Code, DoD Whistleblower Protection Statutes, SECNAV instructions, and the Spirit of human rights and military justice itself." AR 2283.
Thereafter, on June 16, 2010, Dr. Klingenschmitt asked the Board to reconsider its June 5, 2008 decision upholding his January 2005 fitness report based on what he characterized as newly discovered evidence. AR 2196-2215. This evidence consisted of emails from Deputy Assistant Secretary of the Navy, Anita Blair, that he had secured through a request under the Freedom of Information Act, and that he argued were relevant to the question of whether Captain Carr acted unlawfully in criticizing him for the sermon he delivered at the 2004 memorial service. AR 2200-04. He argued that the BCNR should set aside its earlier decision in light of this new "evidence" and First Amendment guarantees. AR 2214.
The BCNR again sought an advisory opinion from NPC, and NPC found no error in the 2006 fitness report. AR 2308-10. Among other things, NPC noted that the Inspector General's Office had already found that Dr. Klingenschmitt's allegations of reprisal lacked merit and did not warrant further investigation under 10 U.S.C. § 1034. AR 2308. Navy Personnel Command found that nothing Dr. Klingenschmitt had submitted had proven that either the 2005 or 2006 fitness report was unjust or in error. AR 2309.
Dr. Klingenschmitt submitted a rebuttal to NPC's advisory opinion. AR 2311-13. On May 7, 2009, the BCNR denied Dr. Klingenschmitt relief as to the January 2006 fitness report. AR 2216-17. It stated that it concurred in the comments contained in the advisory opinion and that it was "unable to find the contested fitness report was the result of reprisal against you for protected communications, or discrimination against you because of your religious beliefs." AR 2216.
Finally, on August 11, 2010, the BCNR issued a decision in response to Dr. Klingenschmitt's request for reconsideration of its June 2008 decision upholding his 2005 fitness report. AR 2194. Finding that Dr. Klingenschmitt presented no new material evidence, the BCNR denied Dr. Klingenschmitt's request. AR 2194.
As noted, in challenging his 2006 fitness report before the BCNR, Dr. Klingenschmitt invoked the anti-retaliation provisions of the MWPA. Under that Act, a member of the Armed Services who is dissatisfied with a decision of a correction board concerning his retaliation claim may file an appeal with the Secretary of Defense. 10 U.S.C. § 1034(g). Dr. Klingenschmitt filed such an appeal by letter of July 21, 2009. SAR 23-24. On June 29, 2010, the Acting Deputy Undersecretary of Defense, on behalf of the Secretary, rejected the appeal finding no material error or injustice in the BCNR's decision. SAR 1.
The Tucker Act empowers this court to hear "any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1491(a)(1) (2012). While the Tucker Act waives the sovereign immunity of the United States to allow a suit for money damages,
The Military Pay Act, 37 U.S.C. § 204, "confers on an officer the right to the pay of the rank he was appointed to up until he is properly separated from the service."
In this case, Dr. Klingenschmitt alleges that he was wrongfully discharged from the Navy and seeks an award of backpay and allowances and benefits retroactive to his separation date and reinstatement as a chaplain. Incident to that claim, he seeks removal of references to his 2005 and 2006 fitness reports and the CARE board's recommendation from his record. Compl. ¶ CXVIII. He also asks that the Court vacate his court-martial conviction and direct that references to the conviction, including the letter of reprimand issued pursuant to his conviction, be removed from his record.
The government acknowledges that the Tucker Act and the Military Pay Act confer jurisdiction on this Court to consider wrongful discharge claims.
Nonetheless, the government has moved to dismiss Dr. Klingenschmitt's complaint in its entirety under RCFC 12(b)(1) and 12(b)(6). It argues that Dr. Klingenschmitt waived his right to judicial review of his wrongful discharge claim by failing to press it before the BCNR when he challenged his fitness reports. Def.'s Mot. 23-26. Therefore, the government further argues, this Court lacks jurisdiction to consider his challenge to the BCNR's decisions regarding the fitness reports or his challenge to the court-martial because those claims do not seek money damages but rather are, at best, incidental to his claims for money in connection with the wrongful discharge. Def.'s Mot. 26. The government also argues that Dr. Klingenschmitt's claims under the MWPA are beyond this Court's jurisdiction and can only be pursued through the administrative process set forth in that Act, with no right of judicial review. Def.'s Mot. 29. Finally, the government contends that, absent authority to review the discharge, this Court lacks jurisdiction to consider Dr. Klingenschmitt's claims under the First Amendment and RFRA because those provisions do not mandate the payment of money damages by the government. Def.'s Mot. 29-31.
For the reasons set forth below, the Court finds: (1) that Dr. Klingenschmitt did not waive his wrongful discharge claim; (2) that it has jurisdiction to review the BCNR's decisions regarding Dr. Klingenschmitt's fitness reports as incidental to his claim for money damages arising from his separation from the Navy; (3) that the Court has jurisdiction over Dr. Klingenschmitt's collateral attack on his court-martial conviction for the limited purpose of determining whether the court-martial proceedings were fundamentally fair and consistent with due process; (4) that the Court may consider Dr. Klingenschmitt's claims of retaliation under the First Amendment and RFRA in connection with its exercise of jurisdiction over his wrongful discharge claims and his challenges to the fitness reports; (5) that the Court lacks jurisdiction over Dr. Klingenschmitt's claims under the MWPA; and (6) that the Court lacks jurisdiction over Dr. Klingenschmitt's assorted standalone statutory and constitutional claims (including his challenges to Navy policies such as SECNAVINST 1730.7C). Therefore, the government's motion to dismiss for failure to state a claim is
In ruling on an RCFC 12(b)(6) motion to dismiss for failure to state a claim, the court accepts as true the complaint's undisputed factual allegations and construes them in the light most favorable to the plaintiff.
As noted, the Government has moved to dismiss the complaint under RCFC 12(b)(6) on the grounds that Dr. Klingenschmitt waived his right to judicial review of his wrongful discharge claim because he failed to challenge his discharge from the Navy when he asked the BCNR to remove his 2005 and 2006 fitness reports from his record. The government relies upon
It is well established that military correction boards provide a "permissive administrative remedy" for wrongful discharge and that "an application to a correction board is therefore not a mandatory prerequisite to filing a Tucker Act suit challenging the discharge."
The
The ruling in
The government's reliance on these principles to support its argument that Dr. Klingenschmitt waived his wrongful discharge claim is misplaced. Critically, unlike the plaintiff in
The primary case upon which the government relies in support of its waiver argument is the Federal Circuit's unpublished decision in
In
As is readily apparent,
In short, the Court finds the government's waiver argument unpersuasive. Accordingly, its motion to dismiss Dr. Klingenschmitt's wrongful discharge claim for failure to state a claim is
In ruling on a motion to dismiss for lack of subject matter jurisdiction under RCFC 12(b)(1), the court accepts as true all undisputed facts in the plaintiff's complaint and draws all reasonable inferences in favor of the plaintiff.
As noted above, the Military Pay Act "provides for suit in the Court of Federal Claims when the military, in violation of the Constitution, a statute, or a regulation, has denied military pay."
In this case, the government argues that this Court lacks jurisdiction to consider Dr. Klingenschmitt's claims under the First Amendment and RFRA. The government's argument appears to be premised on the notion (found to lack merit above) that Dr. Klingenschmitt's wrongful discharge claim is not properly before the Court. In light of the Court's conclusion that the wrongful discharge claim has not been waived, it is clear under
The same rationale applies with respect to Dr. Klingenschmitt's claim that his discharge violated RFRA.
On the other hand, the Court lacks jurisdiction to adjudicate the constitutional and statutory claims in Dr. Klingenschmitt's complaint that seek to challenge Navy policies such as SECNAVINST 1730.7C or other policies that are not directly related to Klingenschmitt's wrongful discharge claim. Because it is not necessary to address Dr. Klingenschmitt's constitutional and statutory objections to such policies in order to adjudicate his claim for money damages for wrongful discharge, the Tucker Act does not supply a basis for this Court's jurisdiction over those claims.
In addition to his arguments under the First Amendment and RFRA, Dr. Klingenschmitt contends that his discharge was unlawful because it violated the MWPA. Pl.'s Mot. 24, ECF No. 18 (July 9, 2012). The Court lacks jurisdiction to consider this claim, however, because Congress intended that MWPA claims be adjudicated under the detailed administrative process set forth in the statute and because Klingenschmitt did not challenge his discharge through that scheme.
The MWPA was designed "to provide channels within the military through which members of the armed forces could bring their grievances."
The existence of this comprehensive scheme establishes that Congress did not intend to provide plaintiffs with a private cause of action to enforce their rights under the MWPA in court.
RCFC 52.1 governs motions for judgment on the administrative record.
As noted above, this Court reviews the BCNR's decisions refusing to remove the 2005 and 2006 fitness reports from Dr. Klingenschmitt's record as incidental to its adjudication of Dr. Klingenschmitt's wrongful discharge claim, which is the basis of his claim for money damages. For the reasons set forth below, the Court finds no basis for disturbing the BCNR's decisions regarding the validity of the 2005 and 2006 fitness reports.
The scope of judicial review of military correction board decisions is a deferential one and is "limited to determining whether a decision of the Correction Board is arbitrary, capricious, unsupported by substantial evidence, or contrary to applicable statutes and regulations."
Dr. Klingenschmitt argues that the BCNR's decisions refusing to remove the 2005 and 2006 fitness reports from his records were arbitrary and capricious and not supported by substantial evidence. Specifically, he argues that the BCNR "merely rubber stamped the `advisory opinions' provided by the Navy" and that its failure to find that the fitness reports "were the result of Chaplain Klingenschmitt's religious beliefs" was irrational because of the existence of what he calls "smoking guns to the contrary." Pl.'s Mot. 46-47. In particular, Dr. Klingenschmitt argues that it was irrational for the BCNR not to find a causal connection between the downgraded fitness reports and the Navy's alleged displeasure with his sermons and with his advocacy concerning the Navy's policies for chaplains.
The Court finds these arguments unpersuasive. To the extent that Dr. Klingenschmitt is asking the Court to second guess the evaluation of his performance or his superiors' assessment of his promotion potential, such claims are nonjusticiable because "[a] court lacks the special expertise needed to review . . . officers' records and rank them on the basis of relative merit."
As described below, Dr. Klingenschmitt has failed to identify a specific law, rule, or regulation that was violated with respect to either of his fitness reports. Further, substantial evidence supports the BCNR's conclusions rejecting Dr. Klingenschmitt's allegations that the downgraded fitness reports were the product of retaliation for Dr. Klingenschmitt's exercise of his First Amendment rights. Therefore, the Court finds meritless Dr. Klingenschmitt's objections to the Navy's consideration of those fitness reports in deciding whether or not to recertify him as a chaplain.
First, with respect to the 2005 Report, the BCNR found no merit to Dr. Klingenschmitt's claims that the declining recommendation in the report (from "Early Promote" to "Must Promote") was based on his exercise of his claimed First Amendment right "to quote `exclusive' Bible verses in the base chapel during one optionally-attended Christian memorial service," or to "pray[] publicly `in Jesus name.'" AR 2365;
The advisory opinion noted that Dr. Klingenschmitt's grievances challenging the fitness report had been found without merit, that the promotion recommendation of "must promote" did not equate to a finding of deficient performance, that the comments and performance trait marks assigned to a member are "at the discretion of the reporting senior," and that Dr. Klingenschmitt did not prove the report to be in error. AR 2406-07. The BCNR's adoption of this rationale was neither arbitrary nor capricious.
The record before the Board here revealed that the ratings and "Must Promote" recommendation in the 2005 fitness report were based on the results of the command survey that Captain Carr conducted as part of his oversight of the religious ministries program. That survey had uncovered a significant amount of dissatisfaction with Dr. Klingenschmitt's performance among the sailors he served on the USS Anzio. AR 2451-52.
Dr. Klingenschmitt has not identified any law, rule, or regulation that precluded his superiors from taking the survey results into consideration in assigning him a "Must Promote" rather than "Early Promote" recommendation. And he has not identified any basis in law or regulation to challenge the numerical ratings that were assigned in the report, other than conclusory arguments that such ratings could only have been based on animus toward Dr. Klingenschmitt based on his religious expression.
Finally, because the BCNR reasonably concluded that the ratings in the 2005 fitness report were based on the survey results, and not on the content of the sermon Dr. Klingenschmitt delivered at the 2004 memorial service, it is unnecessary for the Court to address Dr. Klingenschmitt's argument that he had a right under the First Amendment or under 10 U.S.C. § 6031 to express the sentiments he conveyed during that sermon. Even assuming such a right existed (a matter on which the Court expresses no opinion), the BCNR reasonably found that there was no cause and effect relationship between the sermon and the downgraded fitness report.
Dr. Klingenschmitt's challenge to the BCNR's decision declining to remove his 2006 fitness report from his record is similarly meritless. As described above, that report was critical of Dr. Klingenschmitt for removing his uniform "in a public setting and in the presence of media," and for "[o]penly challeng[ing] the authority of his chain of command" through, among other things, "intemperate" statements to the media and on his website in reference to senior leadership. AR 1869. The report further advised that Dr. Klingenschmitt "needs to improve his military bearing and professionalism in order to become a more effective Naval Officer."
Dr. Klingenschmitt argued before the Board that the 2006 fitness report was unlawful because it punished him for making what he characterized as "protected whistleblower communications to the President and members of Congress." AR 2278. He characterized those "communications" as complaints "accusing senior Naval officials, including the Chief of Navy Chaplains, of violating their oath to support and defend the Constitution, specifically by engaging in religious harassment and discrimination against me, a junior chaplain under their control, by censoring and threatening to censor the content of my public prayers." AR 2281.
In rejecting Dr. Klingenschmitt's claims, the BCNR again relied upon the reasoning in an advisory opinion from NPC. That opinion noted that the Inspector General's Office had already found that Dr. Klingenschmitt's allegations of reprisal lacked merit and did not warrant further investigation under the MWPA. Thus, the Inspector General had concluded that Dr. Klingenschmitt's unfavorable 2006 report, which found that he failed to meet accepted standards of military bearing, was justified by the fact that he "used intemperate language when referring to senior naval officers in his publicly accessible website, told his department head that he did not accept his authority or the authority of the Commanding Officer, and removed portions of his uniform in the presence of the media." AR 2274. In addition, the advisory opinion further noted that the 2006 fitness report had been prepared consistent with governing rules and that Captain Pyle had justified the "decline in performance" and the ratings through the narrative comments in the report. AR 2309.
Upon consideration of the entire record, "the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice" with respect to the 2006 report. AR 2216. It noted that it "substantially concurred with the comments contained in the advisory opinion" and that it was "unable to find the contested fitness report was the result of reprisal against you for protected communications, or discrimination against you because of your religious beliefs." AR 2216.
Dr. Klingenschmitt exercised his rights under 10 U.S.C. § 1034(g) to appeal to the Secretary of Defense the BCNR's disposition of his claims that the 2006 fitness report constituted retaliation under the MWPA. Because, as noted above, this Court lacks jurisdiction to review MWPA claims, it considers itself bound by the Secretary's conclusion that the 2006 report was not the product of retaliation for whistleblowing within the meaning of the MWPA.
As to the other bases Dr. Klingenschmitt asserted for challenging the 2006 fitness report (i.e. religious discrimination), the Board's decision was neither arbitrary nor capricious, and its conclusions were supported by substantial evidence. Thus, Dr. Klingenschmitt does not deny that he engaged in the offending conduct identified in the narrative in his fitness report. Beyond making conclusory statements that the report was the product of retaliatory animus against him (
Ultimately, as with the 2005 fitness report, Dr. Klingenschmitt's challenge to the BCNR's determination regarding the validity of the 2006 report relies entirely upon an argument that Dr. Klingenschmitt's activities and public pronouncements about Navy policy (which he characterizes as part of a "crusade to restore religious freedom") had angered Navy officials.
Dr. Klingenschmitt again fails to appreciate that the BCNR's decision declining to draw an inference of retaliatory motives was based on the narratives in the 2006 fitness report, whose factual basis Dr. Klingenschmitt does not challenge. On its face, the enumeration of acts of improper conduct by Dr. Klingenschmitt contained in the report provided ample support for the ratings contained in the report. Those acts provided a sufficient basis to permit the BCNR to find that any protected activities by Dr. Klingenschmitt were not the but-for cause of the downgraded report. His claims based on the First Amendment and RFRA are, accordingly, unavailing.
Dr. Klingenschmitt requests the removal of the court-martial conviction and all related matters (including the letter of reprimand) from his record. He contends that Captain Pyle's Order not to wear his uniform at the March 30, 2006 media event was unlawful within the meaning of
As noted above, the Court has jurisdiction to hear collateral attacks upon a court-martial conviction where the conviction has back pay and monetary consequences.
First, Dr. Klingenschmitt's arguments regarding the lawfulness of Captain Pyle's Order (which he unsuccessfully litigated before the court-martial) do not go to the question of whether the court-martial proceedings themselves were fundamentally unfair and violative of due process. Rather, the lawfulness of the Order is relevant to the underlying merits of the conviction. Therefore, those arguments do not concern matters within the Court's scope of review of the court-martial.
Dr. Klingenschmitt's second contention is that the court-martial proceedings were fundamentally unfair because they were tainted by impermissible "command influence." Pl.'s Mot. 33.
Dr. Klingenschmitt argues that improper command influence was exercised in the court-martial because, he alleges that Admiral Ruehe who convened the court-martial, was an accuser in the case. Specifically, he argues, Admiral Ruehe "had to deal with Chaplain Klingenschmitt through Art. 138 complaints, Art. 1150 complaints, news inquiries and hunger strikes" and that, in addition, "[h]e had to spend time in discussion with the Chief of Chaplains and even the office of the Chief of Naval Operations and the Judge Advocate General." Pl.'s Mot. 36.
An accuser is an individual who is "so closely connected to the offense that a reasonable person would conclude that he had a personal interest in the matter."
Finally, the Court turns to Dr. Klingenschmitt's contention that the decision not to recertify him as a chaplain after he lost his ecclesiastical endorsement was arbitrary, capricious and/or contrary to law. Pl.'s Mot. 39. In addressing this challenge, the Court is again mindful of the Federal Circuit's admonition that the decisions of military officials regarding which individuals are fit to serve and in what capacity "are not for the courts to decide."
The Secretary of Defense has the statutory authority to issue regulations concerning the discharge of a military chaplain who "fails to maintain the qualifications needed to perform his professional function." 10 U.S.C. § 643. In accordance with that authority, the Secretary published DoDI 1304.28, entitled "Guidance for the Appointment of Chaplains for the Military Departments." That Instruction provides that if a chaplain's ecclesiastical endorsement is ever withdrawn, "[p]rocessing for separation in accordance with [10 U.S.C. § 643] shall be initiated immediately [upon receipt of notice of the withdrawal]." DoDI 1304.28, ¶ 6.5.
Once the process is initiated, the chaplain must be advised of, among other things, his right to counsel and of his option to seek another ecclesiastical endorsement, apply for non-chaplain duties or voluntary retirement, or tender a resignation. DoDI 1304.28, ¶¶ 6.5.1.1, 6.5.1.3. Dr. Klingenschmitt chose to seek recertification as a chaplain. AR 2025.
As the district court observed in rejecting Dr. Klingenschmitt's challenge to the initiation of separation proceedings against him, "DoDI 1304.28 makes it abundantly clear that where a chaplain seeks to have her qualifications recertified (pursuant to ¶ 6.5.1.3), that recertification is not automatic and is subject to the approval (i.e., the certification) of the Department Secretary." Memorandum Opinion at 4,
The administrative record before the Court reveals that these procedures were followed in connection with Dr. Klingenschmitt's separation. As described in greater detail above, after Dr. Klingenschmitt lost his ecclesiastical endorsement from the Evangelical Episcopal Church, he submitted a formal request for approval of his endorsement from the Chaplaincy of Full Gospel Churches. AR 2001-02. The Chief of Navy Chaplains then convened a CARE board to make recommendations regarding whether Klingenschmitt should be recertified. AR1980. The CARE board considered Dr. Klingenschmitt's service record and the materials he submitted in support of his recertification, and recommended that his request for recertification be denied. AR 1978-1979. The Chief of Navy Chaplains and the Chief of Naval Personnel concurred with this recommendation and further recommended to the Assistant Secretary of the Navy for Manpower and Reserve Affairs that Klingenschmitt's request for approval of his new endorsement be denied. AR 1977, 1882-83.
Based on these recommendations and the entire record, the Assistant Secretary (acting pursuant to a delegation of authority from the Secretary) determined that Dr. Klingenschmitt was "professionally unsuited for further service as a naval officer and chaplain." AR 1971. Among other things, he considered Dr. Klingenschmitt's performance and disciplinary record (including his fitness reports and court-martial conviction) as well as the lack of support for him in his chain of command.
Dr. Klingenschmitt has failed to establish that there was any violation of law, rule, or regulation in connection with the separation process itself. Thus, the Court can find no basis for Dr. Klingenschmitt's contention that neither the CARE board nor the Assistant Secretary had before them an adequate record on which to judge Klingenschmitt's suitability to be recertified and retained.
Indeed, at the oral argument in this matter, counsel for Dr. Klingenschmitt abandoned his argument that the administrative record before the Court was incomplete, and acknowledged that he had no basis for challenging the government's representation that it included at AR 1977-2127 the entire record considered by both the CARE board and the Assistant Secretary. Oral Arg. Tr. 40. Those pages include, among other things, Dr. Klingenschmitt's fitness reports, the report of the investigation of his Article 138 grievance, the rulings in connection with his court-martial, and his own submissions in support of his recertification. AR 1982.
There is similarly no merit to Dr. Klingenschmitt's argument that the CARE board acted beyond its authority by recommending his separation. Pl.'s Mot. 44-45. Specifically, he asserts that in deciding pursuant to OPNAVINST 1120.9, ¶ 5(b)(3) whether to recertify his professional qualifications, the CARE board was to look at whether the new ecclesiastical endorsement was "in correct and proper form."
Finally, Dr. Klingenschmitt's claim that the decision not to recertify him constituted reprisal for constitutionally protected activity is not supported by the administrative record before the Court. As the court of appeals for the D.C. Circuit observed, "[b]ecause mandatory, the Secretary's initiation of separation proceedings could not have been motivated by retaliatory animus."
In that regard, the Court finds unpersuasive Dr. Klingenschmitt's argument that his First Amendment right to practice his religious beliefs was infringed by Captain Pyle's Order that he not wear his uniform to the media event held in Lafayette Park in March 2006. Captain Pyle's Order was based on Navy regulations that prohibit the wearing of a uniform in connection with political activities. AR 1458 (citing NAVPERS 15665I, ¶ 1401.3(b));
In short, the record fails to support a showing of any causal connection between any protected activity and Dr. Klingenschmitt's separation. For that reason, and because his other challenges to the lawfulness of the recertification process are without merit, the Court concludes that the Navy's decision not to recertify Dr. Klingenschmitt, which resulted in his administrative separation from the Navy, was neither arbitrary, capricious, nor contrary to law.
For the reasons stated above, the government's motion to dismiss under RCFC 12(b)(1) is
U.S. Dep't of Navy, Reg. 15666I, U.S. Navy Uniform Regulations para. 1401.3(b) (19 April 1991) [hereinafter NAVPERS 15665I].
Section 643 states that "[u]nder regulations prescribed by the Secretary of Defense, a commissioned officer on the active-duty list of the Army, Navy, or Air Force who is appointed or designated as a chaplain may, if he fails to maintain the qualifications needed to perform his professional function, be discharged or, if eligible for retirement, may be retired."
