Veitch, D. Philip v. England, Gordon R.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2006 Decided November 28, 2006
Reissued December 4, 2006

No. 05-5196

D. PHILIP VEITCH, REV.,
APPELLANT

v.

GORDON R. ENGLAND, SECRETARY OF THE NAVY, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 00cv02982)

Arthur A. Schulcz, Sr. argued the cause and filed the briefs
for appellant.

Lowell V. Sturgill, Jr., Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the brief
were Peter D. Keisler, Assistant Attorney General, U.S.
Department of Justice, Kenneth L. Wainstein, U.S. Attorney at
the time the brief was filed, and Robert M. Loeb, Attorney.
 2

Before: SENTELLE and ROGERS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.

Concurring opinion filed by Circuit Judge ROGERS.

SILBERMAN, Senior Circuit Judge: Rev. D. Philip Veitch,
formerly a Lieutenant Commander in the Navy Chaplain Corps,
appeals from the district court’s grant of summary judgment to
the Navy. His complaint alleged that he had been constructively
discharged for unconstitutional reasons; that the Navy had
forced him out of the service in violation of his First
Amendment rights to free speech and free exercise of religion
and in contravention of the Establishment Clause. The district
court concluded that since Veitch had resigned voluntarily, he
lacked standing to bring his constitutional claims. We affirm.

I

Veitch is an evangelical Protestant minister in the Reformed
Episcopal Church. He joined the Navy Chaplain Corps in 1987
and from June 1987 until September 2000 served in the Corps
as a commissioned officer, ultimately reaching the rank of
Lieutenant Commander. This case has its origin in a recurrent
dispute that took place between Rev. Veitch and his command
chaplain, Captain Ronald J. Buchmiller, during Veitch’s
assignment to the Naval Support Activity, Naples, Italy (“NSA
Naples”).

Essentially, Veitch claims that Captain Buchmiller, a
Catholic priest, clashed with him because of Buchmiller’s
intolerance for Veitch’s conservative Protestant religious beliefs
and practices. There seems to be little doubt that the
 3

relationship between the two was quite unfriendly, and,
according to Veitch, Buchmiller repeatedly criticized him for his
insistence on preaching sola scriptura—the doctrine that
Biblical teaching alone is authoritative, which is accepted by
many Protestant faiths but rejected by Catholic and Orthodox
churches. Continued friction led Veitch to send rather caustic e-
mails to Buchmiller and to file an Equal Opportunity Complaint
(“EO Complaint”) seeking relief from Buchmiller’s harassment.

Commander Lawrence Zoeller, a medical service officer,
was assigned to investigate Veitch’s complaint. Zoeller
concluded that Veitch’s allegation of religious discrimination
was unsubstantiated. In explaining his decision to recommend
denying Veitch’s complaint, Zoeller described what he
perceived to be the Navy’s requirement of pluralism among
religions. Zoeller determined that Veitch had failed to satisfy
the basic tenet of pluralism in his preaching, and that Buchmiller
had been correct to counsel Veitch on this problem. Zoeller also
found that Veitch’s preaching was derogatory toward other
faiths. Zoeller transmitted his report to Captain John J. Coyne,
the commanding officer at NSA Naples. After reviewing
Zoeller’s report along with some of the e-mails sent from Veitch
to Buchmiller, Coyne contacted Buchmiller to inform him that
Veitch’s behavior, as evidenced by his e-mails, demonstrated an
unacceptable lack of respect for a superior officer and should not
be tolerated in the future.

Thereafter, Veitch claims that Buchmiller tore a
Reformation Conference poster off his wall and continued to
harass and criticize him. Veitch claims that he was on the verge
of filing a second EO Complaint in response to Buchmiller’s
continued hostility. In the end, Veitch chose not to file, but he
did send Buchmiller a fateful e-mail on February 8, 1999.
Veitch’s rebarbative missive was a four-page broadside attack
on Buchmiller’s command and character. This e-mail prompted
 4

Coyne to bring non-judicial punishment against Veitch in the
form of a Captain’s Mast. Veitch was presented with a charge
sheet in February; he was charged with “disrespect towards a
superior commissioned officer” under Article 89 of the Uniform
Code of Military Justice (“UCMJ”). 10 U.S.C. § 889 (2000).
He was also charged under Article 86 of the UCMJ with “failure
to go to appointed place of duty,” 10 U.S.C. § 886, for having
missed four staff meetings, without justification, in late 1998.
Veitch consulted with his Navy attorney and refused non-
judicial punishment. Coyne then decided to bring the same
charges against Veitch at court-martial.

After further consultation with counsel, Veitch submitted
his resignation, which Coyne endorsed. Coyne did not further
pursue the court-martial charges, but instead issued Veitch a
Nonpunitive Letter of Caution. In April 1999, Veitch wrote to
the Department of Defense Inspector General (“DoDIG”)
alleging that Coyne and Buchmiller had engaged in acts of
reprisal for his decision to file the EO Complaint; he requested
that the DoDIG investigate the circumstances surrounding his
resignation. In May, the Navy approved Veitch’s resignation
and set a November separation date. However, in July, when the
DoDIG agreed to investigate Veitch’s complaint through the
Navy Inspector General (“NIG”), Veitch requested permission
to withdraw his resignation. Veitch’s new commanding officer,
Captain Brendan L. Gray, strongly recommended disapproval of
Veitch’s request, and the Navy denied his request in August
1999. But in early November, the Secretary of the Navy
suspended Veitch’s resignation orders until the completion of
the NIG investigation into Veitch’s retaliation complaint. On
May 23, 2000, the NIG completed its report, which found that
Veitch’s allegations of reprisal were unsupported. With the
retaliation inquiry complete, Veitch was finally separated from
the Navy on September 30, 2000.
 5

Veitch then sued the Navy and several of its officers in
federal district court in December 2000. Veitch included with
his complaint a motion for a preliminary injunction. The district
court denied Veitch’s motion. See Veitch v. Danzig, 135 F.
Supp. 2d 32 (D.D.C. 2001). Defendants then filed a motion to
dismiss, which was granted in part and denied in part. The court
also ordered Veitch to file an amended complaint or face
dismissal of his entire case. See Veitch v. Danzig, Civ. No. 00-
2982 (D.D.C. Aug. 30, 2001) (memorandum and order). Veitch
then filed a six-count amended complaint alleging Free Speech,
Establishment, and Free Exercise claims; Fifth Amendment
claims; claims for constructive discharge; and violations of the
Religious Freedom Restoration Act (“RFRA”). The district
court granted summary judgment for defendants.

II

Veitch would have us confront a rather troubling
constitutional question: whether chaplains in the armed services
can be required to endorse “pluralism” in their religious
practices. The services are understandably concerned about unit
morale. And those of us old enough to remember World War II
movies will recall scenes of chaplains at the front line
performing services for soldiers of different religions. On the
other hand, Veitch’s argument that a chaplain cannot be obliged
to preach counter to his or her religious beliefs consistent with
the First Amendment is hardly a frivolous claim. Fortunately
for us—and unfortunately for Veitch—we need not decide this
difficult question. We agree with the district court that Veitch
may not raise this issue because his resignation was voluntary
and because the Navy did not act unreasonably in refusing to
permit Veitch to withdraw his resignation.
 6

Veitch contends that we are obliged to consider his
constitutional challenges because the Navy’s alleged unlawful
behavior coerced Veitch into offering his resignation; in other
words, he alleges that he was constructively discharged.
Veitch’s pleadings never really indicate the source of his cause
of action. At oral argument, Veitch’s counsel asserted that his
claim and request for injunctive relief—the reinstatement of his
status—was based on the Constitution itself. The government
did not object to appellant’s imprecision in his pleadings, nor
did it deny that a claim for constructive discharge could be
brought against the government directly under the Constitution.1
The government insisted instead that Veitch’s resignation was
wholly voluntary. In light of the parties’ posture, we shall
assume, arguendo, that if the government illegally coerced an
officer to resign, a constructive discharge claim could be
brought.2 Although we have found no cases that explicitly
discuss such a claim, there are, of course, quite a number of
constructive discharge cases that arise in the Title VII context.
See generally Penn. State Police v. Suders, 542 U.S. 129, 142-
43 (2004). To be sure, Veitch does not purport to be raising a
claim under Title VII, and although this Court has not squarely
ruled on the question, we note that every circuit to address the
issue has held Title VII inapplicable to uniformed members of
the armed services. See, e.g., Fisher v. Peters, 249 F.3d 433,
438 (6th Cir. 2001); Brown v. United States, 227 F.3d 295, 298
(5th Cir. 2000); Hodge v. Dalton, 107 F.3d 705, 707-12 (9th Cir.

1
Presumably the waiver of sovereign immunity for such a direct
action against the Navy—as opposed to the individual
defendants—would come from the Administrative Procedure Act, 5
U.S.C. § 702.
2
The existence vel non of a cause of action is not a jurisdictional
question, and therefore we may assume it without deciding. Trudeau
v. Fed’l Trade Comm’n, 456 F.3d 178, 190-91 (D.C. Cir. 2006).
 7

1997); Randall v. United States, 95 F.3d 339, 343 (4th Cir.
1994); Doe v. Garrett, 903 F.2d 1455, 1459 (11th Cir. 1990);
Roper v. Dep’t of the Army, 832 F.2d 247, 248 (2d Cir. 1987);
Johnson v. Alexander, 572 F.2d 1219, 1223-24 (8th Cir. 1978);
see also Collins v. Sec’y of the Navy, 814 F. Supp. 130, 131
(D.D.C. 1993).3 Nevertheless, Title VII cases provide standards
by which to judge constructive discharge claims, and the district
court relied on them, in part, to determine that Veitch’s
resignation was voluntary. While a constitutional claim for
constructive discharge might not track the standards used to
decide Title VII cases, we think it likely that actions that did not
amount to a constructive discharge under Title VII would not
violate an employee’s constitutional protections.

Veitch’s constructive discharge claim rests on four
elements. The first, and by far the most important according to
appellant, is the Zoeller Report. Veitch focuses so heavily on
the Report because it is the only document in this case that both
defines the doctrine of pluralism and acknowledges that the
Navy Chaplain Corps requires its chaplains to preach
pluralistically. According to Veitch, the Zoeller Report’s
unconstitutional conclusions made his resignation the product of
duress, which fact thus vitiates the voluntariness of his choice
and entitles him to reinstatement. There are longstanding
precedents in the Federal Circuit holding that resignations
produced by unlawful government duress or coercion are
invalid. See, e.g., Carmichael v. United States, 298 F.3d 1367,
1372 (Fed. Cir. 2000). The test for duress is objective, and has
three parts: Under a reasonable person standard, Veitch must
show “(1) he involuntarily accepted the terms of the

3
The Equal Employment Opportunity Commission agrees with
the circuits that have decided this issue. See 29 C.F.R. §
1614.103(d)(1) (2006) (excluding uniformed members of the military
departments from Title VII’s anti-discrimination provisions).
 8

government; (2) circumstances permitted no other alternative;
(3) said circumstances were the result of the government’s
coercive acts.” Id. Veitch’s difficulty is that the Zoeller Report
in no sense punished or threatened him; it simply rejected his
EO Complaint against Buchmiller. That Zoeller’s nonbinding
legal conclusions were not “coercive acts” seems obvious.

Veitch’s argument seems to be that if the Navy’s actions
against him—e.g., the dismissal of his EO Complaint—were
unlawful, then they were per se coercive, whether or not those
actions would actually force a reasonable person in Veitch’s
position to resign. For this extraordinary proposition, Veitch
relies on one Court of Claims case, Roskos v. United States, 549
F.2d 1386 (Cl. Ct. 1977), in which the court said, “An action is
not voluntary if it is produced by government action which is
wrongful.” Id. at 1389-90 (emphasis added). But in that case,
the illegal act was the unauthorized transfer of the plaintiff to
another city, which the court described as one that “[left] the
employee with no practicable alternative [but to resign].” Thus,
Roskos, far from announcing a new standard for challenges to
government action, is entirely consistent with the Federal
Circuit’s tripartite duress test. The Roskos court simply found
that “circumstances permitted no other alternative.”
Carmichael, 298 F.3d at 1372. It can hardly be claimed that the
Zoeller Report left Veitch with no practical alternative but
resignation. Indeed, Veitch could have appealed the results of
Zoeller’s investigation, but chose not to do so. Veitch thus had
a “reasonable alternative” to resignation that negates the second
duress requirement. See Kim v. United States, 47 Fed. Cl. 493,
497-98 (2000).

The second and third elements in Veitch’s constructive
discharge claim relate to the court-martial charges brought
against him. It will be recalled that he was charged, inter alia,
with disrespect to a superior officer under Article 89 of the
 9

UCMJ. Here Veitch raises a rather subtle argument, relying on
a district court opinion in our circuit, Rigdon v. Perry, 962 F.
Supp. 150 (D.D.C. 1997), for the proposition that military
chaplains cannot be “superior commissioned officers” as that
term is used in 10 U.S.C. § 889, and so the Article 89 charge
against him was improper. But Rigdon did not deal with actions
alleged to be disrespectful to a superior officer, and whether or
not it is a sound interpretation of the UCMJ, nothing prevented
Veitch from contesting his court-martial on that or any other
ground.

A court-martialed serviceman or woman has a
congressionally enacted process of military appeals by which to
contest allegedly unlawful charges. And this process, notably,
does not include immediate resort to the federal courts. For
instance, after a conviction, the accused has right to review of
his or her sentence by the court-martial’s convening authority,
and, following that, by the Navy Judge Advocate General. See
generally 10 U.S.C. §§ 859-67. In certain
circumstances—including those involving sentences of
dismissal or discharge—a serviceman or woman has a right of
appeal to the United States Navy-Marine Corps Court of
Criminal Appeals, and, by petition, to the United States Court of
Appeals for the Armed Forces.4 Id. Congress thus carefully

4
On all but rare occasions, the accused may obtain a writ of
habeas corpus only after progressing through the appellate hierarchy
of military courts. See Schlesinger v. Councilman, 420 U.S. 738, 758
(1975) (“[F]ederal courts normally will not entertain habeas petitions
by military prisoners unless all available military remedies have been
exhausted.”). The one major exception to the general rule requiring
exhaustion of military court remedies prior to obtaining habeas relief
involves cases where military courts are claimed to lack jurisdiction
over the accused. In such cases, collateral attack is allowed prior to
the conclusion of military court proceedings. See id. at 746-53.
 10

designed a scheme of military appeals to prevent needless
federal court review of military affairs. By resigning in the face
of his court-martial charges, however, Veitch neglected to
exhaust his military court remedies. See Parisi v. Davidson, 450
U.S. 34, 41-46 (1972) (recognizing the exhaustion requirement
applied to courts-martial when the accused could gain complete
relief before such tribunals). Veitch cannot now escape the
consequences of that decision by characterizing the court-
martial charges themselves as evidence of coercion.
Successfully contesting the court-martial would have provided
Veitch full relief from the allegedly unlawful charge under
Article 89, and when full relief is available from a court-martial,
civilian courts should require resort to that tribunal in the first
instance.

Veitch also claims that his appointed counsel led him astray
by not telling him about Rigdon and the possible defense to the
court-martial that case provided. He relies chiefly on Tippett v.
United States, 185 F.3d 1250 (Fed Cir. 1999), in which our
neighbor court held that an Army captain’s discharge was not
voluntary if based on his Army lawyer’s misrepresentation of
his legal rights, id. at 1258. Veitch never fully develops his
assertion that his Navy lawyer’s failure to bring Rigdon to his
attention was a causal factor in his decision to resign. In Tippett,
it was essentially uncontested that the plaintiff had based his
decision to resign on his military lawyer’s advice as to the effect
his resignation would have on his subsequent intent to apply for
a reserve commission. On the record before us, there is nothing
to support a conclusion that Veitch resigned because of his
lawyer’s failure to discover favorable legal precedent, which, in
this case, amounted to a single district court decision that is not
binding precedent for any other court. Such a conclusion is
further undercut by the fact that Veitch’s Navy lawyer had the
case for two days prior to Veitch’s resignation. Moreover,
Veitch was charged not only with an Article 89 offense, but also
 11

with an Article 86 violation (failure to appear at an appointed
place of duty) and Rigdon, even if correctly decided (which we
doubt), has no bearing on that charge.

Finally, Veitch asserts, relying on an analogy with Title VII
cases holding that a hostile work environment can be the cause
of a constructive discharge, that he faced just such a hostile
environment at NSA Naples. As already noted, we assume,
arguendo, that Veitch may raise a constructive discharge claim
directly under the Constitution, but whether or not that is so,
such a claim could not require less of a showing than would
qualify under Title VII itself. The district court concluded that
Veitch had not presented a triable issue of fact on the question
of intolerable work conditions. On appeal, Veitch argues that
the district court ignored evidence of a hostile work environment
and failed to give Veitch the inferences to which he is entitled
as the nonmoving party on a motion for summary judgment. We
are by no means convinced that the district court erred in its
evaluation of the evidence; however, we do not believe it
necessary to resolve these questions because, viewing the record
in the light most favorable to Veitch, his claims fail to make out
a hostile work environment as a matter of law.

We have held that a plaintiff bringing an employment
discrimination claim under Title VII on the theory of
“constructive discharge” must show that the employer
deliberately created intolerable work conditions that forced the
plaintiff to quit. Clark v. Marsh, 665 F.2d 1168, 1173 (D.C. Cir.
1981). “The inquiry is objective: Did working conditions
become so intolerable that a reasonable person in the
employee’s position would have felt compelled to resign?”
Suders, 542 U.S. at 141 (citing C. Geoffrey Weirich et al., 2002
Cumulative Supplement to Lindemann & Grossman 651-52 &
n.1). We have stated before that the mere existence of
workplace discrimination is insufficient to make out a
 12

constructive discharge claim; “[c]onstructive discharge . . .
requires a finding of discrimination and the existence of certain
‘aggravating factors.’” Mungin v. Katten Muchin & Zavis, 116
F.3d 1549, 1558 (D.C. Cir. 1997) (quoting Clark, 665 F.2d at
1174) (emphasis added). “Aggravating factors” are those
aspects of a discriminatory work environment that, by making
the workplace so disagreeable, prevent the reasonable employee
from seeking remediation on the job. Id. (citing Clark, 665 F.2d
at 1174).

The question before us is whether the record reveals any
aggravating factors that could give rise to a constructive
discharge. Veitch makes various claims of harassment and
discrimination by Buchmiller: Buchmiller stated twice that
Veitch would “not be doing much” in Naples; Buchmiller did
not assign Veitch collateral duties during his first thirteen
months in Italy; Buchmiller repeatedly criticized Veitch’s
sermons; Veitch was forced to share a cramped office with a
junior chaplain; Buchmiller denied Veitch the role and
responsibilities of senior Protestant chaplain; Buchmiller did not
speak to Veitch during staff meetings; Buchmiller assigned
Veitch to assist a junior chaplain in the Vacation Bible School;
Buchmiller tore a Reformation Conference poster off Veitch’s
wall; Veitch was assigned to pastor the “Maranatha” worship
service, to which Veitch’s conservative liturgical tradition was
inimical; Buchmiller spoke to Veitch in a “curt” manner. Veitch
further argues that there was a general anti-evangelical
environment at NSA Naples that contributed to the intolerable
work conditions created by Buchmiller.

Accepting these assertions as true, we conclude that, as a
matter of law, they do not constitute “aggravating factors” under
our Title VII precedents. In the context of gender
discrimination, the Supreme Court has stated that “to establish
hostile work environment, plaintiffs . . . must show harassing
 13

behavior ‘sufficiently severe or pervasive to alter the conditions
of [their] employment.’” Suders, 542 U.S. at 133 (quoting
Meritor Savs. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).
Surely the “severe and pervasive” requirement applies equally
to the evaluation of “aggravating factors” in cases alleging
religious discrimination. Here Veitch does not claim conduct
sufficiently “severe and pervasive” to create an aggravated work
environment in which an employee had no choice but to resign.

Most of Veitch’s grievances—e.g., nonselection as senior
protestant chaplain, assignment to the “Maranatha” worship
service, assignment to work with a junior chaplain, lack of
collateral duties, sharing a small office with another chaplain,
criticism from Buchmiller—have explicitly been rejected as
“aggravating factors.” See Weirich et al., supra, at 663-64
(“Generally, a failure to promote will not constitute constructive
discharge, nor will a change in job duties, a transfer, . . .
criticism, pressure from a supervisor, or being ignored by co-
workers.”) (citations omitted). Veitch’s remaining complaint is
that Buchmiller tore down his Reformation Conference poster.
Such an act, while possibly boorish and unjustified, hardly
constitutes the type of harassing behavior that would give rise to
a constructive discharge. All of these assertions, if true, may
have made Veitch’s experience at NSA Naples somewhat
frustrating. But they cannot be considered sufficiently “severe”
to leave a reasonable employee with no realistic option but to
quit his or her job. Compare, e.g., Singletary v. District of
Columbia, 351 F.3d 519, 528-29 (D.C. Cir. 2003) (remanding to
the district court for a finding on the question of hostile work
environment when the plaintiff had been forced to work in an
unheated, unventilated storage room containing brooms and
boxes of debris when more suitable office space was available).
 14

III

Once determining that appellant had voluntarily
resigned—a determination we affirm—the district court,
following our opinion in Taylor v. FDIC, 132 F.3d 753 (D.C.
Cir. 1997), held that Veitch lacked standing to pursue his
broadside constitutional attack on the Navy Chaplain Corps’s
pluralism policy. We quite agree with the district court on the
assumption that the resignation stands. But appellant also
claims that the Navy acted arbitrarily and capriciously in
denying his request to withdraw his resignation, an added claim
not present in Taylor. Veitch argues that the Navy erred by
relying on the NIG’s conclusions with respect to the Zoeller
Report.5 Although Veitch does not specify, we assume—and the
government apparently concedes—that review of the Navy’s
decision is premised on the Administrative Procedure Act
(“APA”). 5 U.S.C. § 704.

There is no doubt that appellant has standing to raise his
APA claim even though, as we conclude, his resignation was
voluntary. After all, the Secretary of the Navy himself
suspended Veitch’s resignation order until the completion of the
NIG investigation, which suggests that even if his resignation
had been legally voluntary, the Navy would have permitted him
to withdraw it if the NIG investigation had shown his
supervisors acted with retaliatory motive. Thus, favorable
review of the Navy’s decision could potentially remedy Veitch’s
injury. Still, appellant’s standing to raise this claim avails him
little, for we have no grounds to conclude that the Navy acted
unreasonably in refusing his withdrawal request.

5
As part of the NIG inquiry into collateral issues surrounding
Veitch’s complaint under the Military Whistleblower Protection
Statute, 10 U.S.C. § 1034, the DoDIG instructed the NIG to
investigate Veitch’s original EO Complaint and Zoeller’s findings.
 15

Veitch argues that the Zoeller Report infected the Navy’s
decisionmaking process from start to finish. If the Zoeller
Report contained unconstitutional statements about pluralism,
then, according to Veitch, it could not serve as a valid basis for
the Navy’s decision to deny his withdrawal request. But this
argument ignores the Navy’s entirely independent ground for
denying Veitch’s request, namely, the finding of no retaliation.
The NIG reported that Coyne, Buchmiller, and Gray’s actions
did not violate the Whistleblower Protection Statute, meaning
that Veitch could not point the finger at his commanding officers
to explain his disciplinary problems. Thus even if Zoeller’s
conclusions had been palpably unconstitutional, the fact that
there was no retaliation for the EO Complaint means that
Veitch’s request would still have been denied because his
disciplinary troubles were the result of his own misconduct.
Veitch offers no reason for us to doubt the verity of the NIG’s
conclusion about retaliation, let alone disturb such a finding
under our limited scope of review. The deference we owe an
agency decision under the arbitrary and capricious test precludes
our reweighing the factors leading the Navy to deny his request.

IV

Based on the foregoing, we affirm summary judgment as
to all claims.
 ROGERS, Circuit Judge, concurring: The Navy has never
challenged Rev. D. Philip Veitch’s lawsuit on the ground that he
states no cause of action for constructive discharge. As the court
acknowledges, Op. at 6 n.2, the existence of a cause of action in
a complaint is not jurisdictional and may be assumed without
being decided by the court. Air Courier Conference v. Am.
Postal Workers Union, 498 U.S. 517, 523 n.3 (1991) (citing
Burks v. Lasker, 441 U.S. 471, 476 n.5 (1979)). Although courts
enjoy discretion to consider non-jurisdictional issues raised for
the first time on appeal, Acree v. Republic of Iraq, 370 F.3d 41,
58 (D.C. Cir. 2004), no “extraordinary circumstances” exist here
as would warrant the court’s consideration of the issue. See
Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419
n.5 (D.C. Cir. 1992). The Navy has never argued in the district
court or this court that Rev. Veitch has failed to state a cause of
action for constructive discharge. Consequently, the issue has
not been briefed by the parties on appeal. Further, during oral
argument, when the court raised the issue, counsel for the Navy
did not adopt the position that there was no such cause of action.

Because, regardless of the cause of action, the evidence
shows that Rev. Veitch voluntarily resigned from the Navy, he
lacks standing to bring, and the court lacks jurisdiction to
consider, his claim for reinstatement or his equitable claims
regarding the conditions of his former employment. See Taylor
v. Fed. Deposit Ins. Corp., 132 F.3d 753, 766-68 (D.C. Cir.
1997). Consequently, the court has no occasion to consider the
nature of the evidentiary burden, Op. at 6-7, nor whether Rev.
Veitch met that evidentiary burden in opposing the Navy’s
motion for summary judgment to show that the Navy’s
“pluralism” policy1 violated his rights under the First and Fifth

1
The Navy’s pluralism policy is discussed in the Zoeller
Report, see Op. at 3, wherein Chaplain Gary Morris, of the United
Methodist faith, reported that chaplain trainees “are taught that
 2

Amendments; the Religious Freedom Restoration Act, 42 U.S.C.
§ 2000bb; or Navy regulations.

The Navy rightly points out that if Rev. Veitch cannot prove
that he was constructively discharged from the Navy, all of his
remaining claims, which concern the conditions of his former
employment as chaplain and for which he seeks only injunctive
and declaratory relief, fail for lack of Article III standing. The
Supreme Court has instructed that “[p]ast exposure to illegal
conduct does not in itself show a present case or controversy
regarding injunctive relief . . . if unaccompanied by any
continuing, present adverse effects.” City of L.A. v. Lyons, 461
U.S. 95, 102 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488,
495-96 (1974)) (omission and alteration in original, internal
quotation marks omitted). If Rev. Veitch’s resignation from the
Navy was voluntary, then he has no legal right to reinstatement
to his position as a Navy chaplain, and the court cannot grant
him the declaratory and injunctive relief he seeks regarding the
conditions of his prior employment. This court stated in Bois v.
Marsh, 801 F.2d 462, 466 (D.C. Cir. 1986), that a plaintiff who
has voluntarily resigned from the armed forces “stands in the
civil courts as a civilian seeking reform of military procedures
to which she is no longer subject.” To bring this appeal
claiming First and Fifth Amendment and statutory violations,
therefore, Rev. Veitch must be able to show that his resignation
is traceable to the Navy, specifically, on his terms, that he was
coerced as a result of retaliation by the Navy for protesting the
alleged religious discrimination and statutory violations he
suffered. In other words, Rev. Veitch must prove constructive
discharge.

facilitating other religions and ministries is essential,” along with
“respect for other differences and traditions of faith especially when
[a Navy] chaplain might have a mixed [faith] congregation.” Joint
Appendix at 649.
 3

This court has declared:

“[A] constructive discharge occurs where the employer
creates or tolerates discriminatory working conditions
that would drive a reasonable person to resign.” It
does not occur when an employee leaves an unpleasant
but objectively tolerable job because alternatives have
become more attractive, even if the employer’s
misbehavior creates the unpleasantness . . . .

Taylor, 132 F.3d at 766 (quoting Katradis v. Dav-El of Wash.,
846 F.2d 1482, 1485 (D.C. Cir. 1988)) (alteration in original).
The question, then, is whether Rev. Veitch has presented
evidence from which a reasonable jury could conclude that his
resignation was forced by the Navy. Although he is entitled as
the non-moving party to the benefit of all reasonable inferences,
he cannot rely in opposing summary judgment on mere
allegations in his unsworn complaint, much less on assertions
made in his brief on appeal; the court may consider only sworn
statements setting forth specific facts. Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986); Liberty Lobby, Inc. v. Dow Jones &
Co., 838 F.2d 1287, 1292 (D.C. Cir. 1988); FED. R. CIV. P.
56(e).

In Taylor, the court considered what constructive discharge
requires. The plaintiffs in that case were former employees of
the Resolution Trust Corporation (“RTC”) who alleged that
RTC’s successor corporation, the Federal Deposit Insurance
Corporation, retaliated against them for making protected
disclosures in violation of the RTC Whistleblower Act, 12
U.S.C. § 1441a(q), and the First Amendment. 132 F.3d at 758-
59. The court noted that the plaintiffs endured whatever the
defendant inflicted upon them until May 1995, when they took
advantage of the severance package offered by the Voluntary
Separation Incentive Program. The plaintiffs did not suggest
 4

that any simultaneous increase in the “wattage of harassment”
drove them out. Id. at 766. While the court noted that what
would drive a reasonable person to resign “may vary with the
character of the job for which the employee was hired and thus,
indirectly, with the employee’s skills,” it held that the plaintiffs
had presented no triable issue of fact on the question of
constructive discharge. Id. The court vacated the grant of
summary judgment and remanded the case for the district court
to dismiss the complaint.

Rev. Veitch similarly claims that his resignation was forced
because of past discrimination—which he tolerated while
engaging in an exchange of emails with Captain Buchmiller,
filing an Equal Opportunity complaint, and considering filing
another complaint. Ultimately, however, Rev. Veitch resigned
rather than face disciplinary proceedings for his disrespectful
emails and unexplained absences. This does not render his
resignation involuntary. See Pitt v. United States, 420 F.2d
1028, 1032-33 (Ct. Cl. 1970); Kim v. United States, 47 Fed. Cl.
493, 497-98 (2000). Rev. Veitch presents no evidence to
suggest that past discrimination required him to be disrespectful
in violation of the Uniform Code of Military Justice as alleged,
or, shy of that, that the Captain’s Mast or court-martial
proceedings would have been so unfair so as to force his
resignation. To the contrary, the claims he raises here could
have been raised before a Navy tribunal. Op. at 10.

Other courts have agreed that the standard for constructive
discharge is quite high. “Resignations or retirements are
presumed to be voluntary,” Tippett v. United States, 185 F.3d
1250, 1255 (Fed. Cir. 1999), and a party alleging that a facially
valid resignation was in fact the product of unlawful duress must
prove three elements: (1) one side involuntarily accepted the
terms of another; (2) the circumstances permitted no other
alternative; and (3) the circumstances were the result of coercive
 5

acts of the opposite party, Roskos v. United States, 549 F.2d
1386, 1389 n.11 (Ct. Cl. 1977); see also Kim, 47 Fed. Cl. at 497.
Under the standard for summary judgment, Rev. Veitch cannot
succeed in showing here that the circumstances permitted no
option except resignation from the Navy.

Alternatively, Rev. Veitch contends that the voluntariness
of his resignation was vitiated by his attorney’s failure to inform
him of Rigdon v. Perry, 962 F. Supp. 150 (D.D.C. 1997). This
argument strains credulity, for the district court opinion is
binding neither on the Navy’s understanding of Article 89 of the
Code of Military Justice nor on this court.

Article III standing requires the plaintiff to show that his
injury is “fairly traceable to the defendant’s allegedly unlawful
conduct.” Allen v. Wright, 468 U.S. 737, 751 (1984). As the
court reasoned in Taylor:

Our rejection of [the plaintiffs’] claim of constructive
discharge is concomitantly a decision that their
voluntary acts are sufficient independent causes of
their separation from the RTC.

This is quite consistent with [the plaintiffs’]
(theoretically) having a claim against the RTC for its
earlier mistreatment. . . . Had [the plaintiffs] remained
[employed at the RTC], they might have been entitled
to some sort of restoration of their earlier status; having
left under circumstances for which the RTC is not
legally culpable, however, they cannot claim that the
RTC has deprived them of their jobs, even if its prior
treatment of them, though falling short of constructive
discharge, was actionable. Failing to show causation,
they lack standing.
 6

132 F.3d at 767. Had Rev. Veitch pressed his broad attack
against the Navy’s “pluralism” policy only on constitutional and
statutory grounds, the court would lack jurisdiction to hear the
case altogether. However, Rev. Veitch also contends that the
Navy acted arbitrarily and capriciously in denying his request to
withdraw his resignation. Although he has standing to raise this
claim, it fails on the merits, see Op. at 14-15.

Accordingly, because Rev. Veitch failed to present evidence
establishing a material issue of disputed fact as to whether he
was constructively discharged from the Navy, nor met his
burden to show that the Navy acted unreasonably in denying his
request to withdraw his resignation, I concur in affirming the
grant of summary judgment to the Navy.