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Admin Law Basics: Exhaust Military Appeals Before Filing in Court

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By William Peacock, Esq. on July 12, 2013 3:59 PM

Commander Furniss Harkness is a Protestant Chaplain in the Unites States Navy Reserves. During his illustrious service in the Chaplain Corps, he has had a bit of a history of speaking his mind, including a prior lawsuit, filed, along with sixteen other non-liturgical Protestants in 2000, that claimed systemic denominational prejudice.

This time, Commander Harkness is miffed about a denied promotion. As one would expect, the Navy has a number of very specific procedures that must be followed when considering officers for promotions, including the formation of a selection board consisting, in part, of at least a single officer of the same classification as the candidate (i.e., another chaplain).

Harkness didn’t immediately leap to litigation. Instead, he petitioned the Secretary to convene a “special selection board” to reconsider the promotion. That request was denied. He also asked for an investigation of the original selection board itself, but that investigation yielded no evidence of wrongdoing.

In 2010, he filed this lawsuit in federal court, setting forth a number of claims, including that the chaplain selection board procedures violate the Establishment Clause by allowing chaplains to evaluate each other, and thereby reproduce denominational preferences in favor of liturgical Protestants and Roman Catholics.

His other claims were mooted when he was later granted a special selection board.

The Establishment Clause claim, however, remains. At least, it did.

There is this "extremely broad and encompassing exhaustion requirement" imposed by 10 U.S.C. § 14502(g). It basically says that any claim whatsoever that originates in a dispute over a promotion has to be brought before the Secretary or a special selection board.

Harkness hasn't brought this claim (the Establishment Clause violation) before the SSB or the Secretary. He makes a number of arguments, beginning with the argument that constitutuional claims were not what Congress intended the statute to cover. He provides no evidence to support this assertion. The statute also consistently uses broad language such as "any," which indicates Congress' intent to provide broad coverage.

He also tries arguing that he lacked corroborative statistical evidence to support his suspicions back in 2007. That, of course, didn't preclude him from filing a new claim at some point between 2007 and before he filed in district court. In fact, the court notes that he still can.

Exhaust internal administrative remedies first. Seek judiciary review once there is a final decision to be reviewed. Basic administrative law.

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