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    Kevin BROTT, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    No. 16-1466
    United States Court of Appeals, Sixth Circuit.
    Argued: February 2, 2017
    Decided and Filed: May 31, 2017

      ARGUED: Mark F. Hearne II, ARENT FOX LLP, Washington, D.C., for Appellants. Brian C. Toth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Mark F. Hearne II, ARENT FOX LLP, Washington, D.C., Matthew L. Vicari, Stephen J. van Stempvoort, MILLER, JOHNSON, SNELL & CUMMISKEY, P.L.C., Grand Rapids, Michigan, for Appellants. Brian C. Toth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Ap-pellee. John M. Groen, Ethan W. Blevins, PACIFIC LEGAL FOUNDATION, Sacramento, California, Steven J. Leehner, MOUNTAIN STATES LEGAL FOUNDATION, Lakewood, Colorado, Robert H. Thomas, DAMON KEY LEONG KUP-CHAK HASTERT, Honolulu, Hawaii, Shelley Ross Saxer, PEPPERDINE SCHOOL OF LAW, Malibu, California, C. Thomas Ludden, LIPSON, NIELSON, COLE, SELTZER & GARIN, P.C., Bloomfield Hills, Michigan, for Amici Curiae.
    Before: BATCHELDER, ROGERS, and WHITE, Circuit Judges.
   OPINION

ALICE M. BATCHELDER, Circuit Judge.

Twenty-three Michigan landowners filed suit in federal district court seeking compensation in excess of $10,000 for the United States’s alleged taking of their land for use as a public recreational trail. The landowners assert that they are entitled to have their claims considered in an Article III court and by a jury. However, Congress has acted constitutionally in bestowing on the Court of Federal Claims, an Article I court, exclusive jurisdiction over the landowners’ compensation claims and removing the right to a jury trial for claims brought in the Court of Federal Claims and in the district court under the Little Tucker Act. Therefore, we must affirm the district court’s dismissal of the landowners’ complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted.

I.

The landowners filed suit in the United States District Court for the Western District of Michigan, alleging three claims: (1) a Fifth Amendment claim for just compensation, brought under the Little Tucker Act, 28 U.S.C. § 1346; (2) a Fifth Amendment claim for just compensation, brought under 28 U.S.C. § 1331; and (3) a declaratory judgment claim requesting that the court determine that it has jurisdiction to hear the landowners’ compensation claims.

The district court determined that Congress, via the Tucker Act, 28 U.S.C. § 1491, and the Little Tucker Act, “vested the Court of Federal Claims with exclusive jurisdiction to hear all claims against the United States founded upon the Constitution where the amount in controversy exceeds $10,000.” The court found no constitutional infirmity in this statutory framework, despite the fact that the Tucker Act prevents the landowners from filing their claims for damages exceeding $10,000 in an Article III court, and litigants bringing claims in the Court of Federal Claims or in the district court under the Little Tucker Act are deprived of a jury trial. Further, because the landowners had failed to demonstrate that the Tucker Act and the Little Tucker Act were unconstitutional, the district court found that they had failed to demonstrate any basis for a declaratory judgment. The court therefore dismissed the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). This appeal followed.

II.

“We review questions of subject-matter jurisdiction and statutory interpretation de novo.” Williams v. Duke Energy Int’l, Inc., 681 F.3d 788, 798 (6th Cir. 2012) (citation and quotation marks omitted). “The party opposing dismissal has the burden of proving subject matter jurisdiction.” Elgharib v. Napolitano, 600 F.3d 597, 600 (6th Cir. 2010) (quoting Charvat v. GVN Mick, Inc., 561 F.3d 623, 627 (6th Cir. 2009)). We also review de novo a district court’s decision to dismiss a declaratory judgment count for failure to state a claim. See Tyler v. Hillsdale Cty. Sheriffs Dep’t, 837 F.3d 678, 685 (6th Cir. 2016) (en banc).

The landowners assert that the district court has federal question jurisdiction, pursuant to 28 U.S.C. § 1331, to consider their Fifth Amendment claims. Alternatively, the landowners argue that, to the extent that the Tucker Act and the Little Tucker Act establish that the Court of Federal Claims has exclusive jurisdiction over the landowners’ just-compensation claims, those Acts are unconstitutional because they deprive the landowners of review in an Article III court and by a jury.

III.

Federal district courts do not have subject matter jurisdiction to consider just-compensation claims for money damages in excess of $10,000 against the United States. Rather the Tucker Act vests jurisdiction over such claims in the Court of Federal Claims. In pertinent part, the Tucker Act states that

The United States Court of Federal Claims shall have jurisdiction to render judgment upon 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). The Little Tucker Act grants federal district courts concurrent jurisdiction for non-tort claims for money damages under $10,000 against the United States. Under the Little Tucker Act,

The district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of: ... (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, 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. § 1346(a)(2). Together, the Tucker Act and the Little Tucker Act operate to vest in the Court of Federal Claims subject matter jurisdiction to consider non-tort claims for money damages against the United States in excess of $10,000.

Moreover, the Tucker Act vests in the Court of Federal Claims exclusive jurisdiction to hear such claims. The United States Supreme Court made this clear in Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998), when it confirmed that a takings suit for money damages must be filed in the Court of Federal Claims but a declaratory judgment action, seeking determination that a government taking had occurred, may be filed in federal district court.

Under the Tucker Act, 28 U.S.C. § 1491(a)(1), the Court of Federal Claims has exclusive jurisdiction to render judgment upon any claim against the United States for money damages exceeding $10,000 that .is “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.” Accordingly, a claim for just compensation under the Takings Clause must be brought to the Court of Federal Claims in the first instance, unless Congress has withdrawn the Tucker Act grant of jurisdiction in the relevant statute.

Id. at 520, 118 S.Ct. 2131 (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-19, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984)); see Blanchette v. Conn. Gen. Ins. Corps. (Reg’l Rail Reorganization Act Cases), 419 U.S. 102, 126-27, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974) (“The general rule is that whether or not the United States so intended, ‘[i]f there is a taking, the claim is ‘founded upon the Constitution’ and within the jurisdiction of the Court of Claims to hear and determine.’ ” (citation omitted)); cf. Bowen v. Massachusetts, 487 U.S. 879, 910 n.48, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (explaining that the Tucker Act’s grant of jurisdiction to the Court of Federal Claims is “ ‘exclusive’ only to the extent that Congress has not granted any other court authority to hear the claims that may be decided by the [Court of Federal Claims]”).

Contrary to the landowners’ assertion, this court has previously determined that 28 U.S.C. § 1331 does not provide federal district courts with subject matter jurisdiction when Congress has otherwise provided an exclusive forum.

28 U.S.C. § 1331 (1976), the general federal question provision, does not provide a jurisdictional basis on these facts. The Fifth Amendment “taking” claim “arises under the Constitution,” and a remedy for a violation of this provision arguably does not require a waiver of sovereign immunity. However, a number of cases indicate that Congress has made the Court of Claims the exclusive and an adequate forum for the Fifth Amendment claims, at least those over $10,000. We conclude that 28 U.S.C. § 1346(a)(2) expressly limits the district court’s jurisdiction over these types of claims against the government to those not exceeding $10,000 in amount and that to utilize the court’s federal question or pendent jurisdiction as to the Fifth Amendment claim would override the express policy of Congress embodied in the Tucker Act.

Lenoir v. Porters Creek Watershed Dist., 586 F.2d 1081, 1088 (6th Cir. 1978) (internal citations and footnote omitted); cf. Pershing Div. of Donaldson, Lufkin & Jenrette Sec. Corp. v. United States, 22 F.3d 741, 743-44 (7th Cir. 1994) (finding that 28 U.S.C. § 1367, providing district court with supplemental jurisdiction over certain claims, does not provide a district court with subject matter jurisdiction where Congress has expressly limited such jurisdiction in the Tucker Act).

Further, “it is familiar law that a specific statute controls over a general one without regard to priority of enactment.” Bulova Watch Co. v. United States, 365 U.S. 758, 758, 81 S.Ct. 864, 6 L.Ed.2d 72 (1961) (citations and quotation marks omitted); see Metro. Detroit Area Hosp. Servs., Inc. v. United States, 634 F.2d 330, 334 (6th Cir. 1980). To read § 1331's broad grant of subject matter jurisdiction as controlling over the Little Tucker Act’s specific and limited grant of jurisdiction, as the landowners do, violates this tenet of statutory interpretation. Therefore, the district court was correct to find that the Court of Federal Claims is the exclusive forum for the landowners’ compensation claims and that it lacked subject matter jurisdiction under 28 U.S.C. § 1331 to review the landowners’ claims.

IV.

The landowners assert that, to the extent that the Tucker Act and the Little Tucker Act vest in the Court of Federal Claims exclusive jurisdiction to hear the landowners’ claims for just compensation greater than $10,000, those Acts are unconstitutional, because the landowners are denied (1) adjudication of their Fifth Amendment claims in an Article III forum, in violation of the separation of powers doctrine, and (2) a jury trial, in violation of the Seventh Amendment. The landowners are not entitled to consideration of their constitutional claims by an Article III trial court or by a jury.

Suits against the United States are premised on a waiver of sovereign immunity. “It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (footnote omitted); see United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). “[A]ny waiver of the United States’ immunity from suit must be unequivocal,” and “[bjecause any exercise of a court’s jurisdiction over the United States depends on the United States’ consent, the waiver of sovereign immunity ... must be strictly construed.” Clay v. United States, 199 F.3d 876, 879 (6th Cir. 1999) (citations omitted); see Sherwood, 312 U.S. at 590, 61 S.Ct. 767 (explaining that the Tucker Act’s waiver of sovereign immunity “must be strictly interpreted”).

Congress may generally condition any grant of jurisdiction over suits against the United States by requiring that such suits be brought in a specific forum or by limiting the means by which a right is enforced.

Only the jurisdiction of the Supreme Court is derived directly from the Constitution. Every other court created by the general government derives its jurisdiction wholly from the authority of Congress. That body may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution. The Constitution simply gives to the inferior courts the capacity to take jurisdiction in the enumerated cases, but it requires an act of Congress to confer it. And the jurisdiction having been conferred may, at the will of Congress, be taken away in whole or in part; and if withdrawn without a saving clause all pending cases though cognizable when commenced must fall.

Kline v. Burke Constr. Co., 260 U.S. 226, 234, 43 S.Ct. 79, 67 L.Ed. 226 (1922) (internal citations omitted); see Steckel v. Lurie, 185 F.2d 921, 924 (6th Cir. 1950) (“Congress, in its unlimited discretion, may constitutionally give, withhold, restrict or take away altogether the jurisdiction of the district courts of the United States.” (citation omitted)). Congress may also decline to waive sovereign immunity, or it may withdraw or modify its consent to suit, even if the right at issue is drawn from the Constitution. “Although consent to sue was thus given ... Congress retained power to withdraw the consent at any time. For consent to sue the United States is a privilege accorded, not the grant of a property right protected by the Fifth Amendment. The consent may be withdrawn, although given after much deliberation and for a pecuniary consideration.” Lynch v. United States, 292 U.S. 571, 581, 54 S.Ct. 840, 78 L.Ed. 1434 (1934) (citations omitted); see Maricopa Cty., Ariz. v. Valley Nat’l. Bank of Phoenix, 318 U.S. 357, 362, 63 S.Ct. 587, 87 L.Ed. 834 (1943) (“[T]he power to withdraw the privilege of suing the United States or its instrumentalities knows no limitations.” (citation omitted)).

A.

The Tucker Act operates as a limited waiver of sovereign immunity from suit, allowing litigants to seek money damages from the United States for certain claims. Mitchell, 463 U.S. at 215-16, 103 S.Ct. 2961. “The Little Tucker Act and its companion statute, the Tucker Act, § 1491(a)(1), do not themselves ‘creat[e] substantive rights,’ but ‘are simply jurisdictional provisions that operate to waive sovereign immunity for claims premised on other sources of law.’ ” United States v. Bornes, 568 U.S. 6, 133 S.Ct. 12, 16-17, 184 L.Ed.2d 317 (2012) (footnote omitted) (quoting United States v. Navajo Nation, 556 U.S. 287, 290, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009)). Congress has conditioned its waiver of sovereign immunity such that suits for money damages against the United States must be brought in the manner dictated by the Tucker Act and the Little Tucker Act. That is, just-compensation claims against the United States for money damages in excess of $10,000 must be brought in the Court of Federal Claims.

1.

The landowners assert that, while a waiver of sovereign immunity may be necessary to enforce a congressionally created entitlement, no waiver is necessary when the right being enforced is founded on the Constitution. Sovereign immunity, however, does not distinguish between congressionally created entitlements and constitutionally created rights. “The character of the cause is of no significance. ...” Coleman v. United States, 100 F.2d 903, 905 (6th Cir. 1939).

The sovereign’s immunity from suit exists whatever the character of the proceeding or the source of the right sought to be enforced. It applies alike to causes of action arising under acts of Congress, and to those arising from some violation of rights conferred upon the citizen by the Constitution. The character of the cause of action—the fact that it is in contract as distinguished from tort— may be important in determining (as under the Tucker Act (24 Stat. 505)) whether consent to sue was given. Otherwise it is of no significance. For immunity from suit is an attribute of sovereignty which may not be bartered away.

Lynch, 292 U.S. at 582, 54 S.Ct. 840 (internal citations omitted). Therefore, in order for claims against it to proceed, the United States must waive sovereign immunity from suit for all those claims, regardless of the source of the rights at issue.

2.

Nevertheless, the landowners argue that an explicit waiver is unnecessary here because the Fifth Amendment right to just compensation is a “self-executing” right and the right to compensation itself contains a waiver of sovereign immunity. The Supreme Court has indeed referred to the Fifth Amendment right to just compensation as “self-executing.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 315, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). The Supreme Court has explained that a Fifth Amendment takings claim is self-executing and grounded in the Constitution, such that additional “[sjtatu-tory recognition was not necessary.” Id. (quoting Jacobs v. United States, 290 U.S. 13, 16, 54 S.Ct. 26, 78 L.Ed. 142 (1933)); see United States v. Dickinson, 331 U.S. 745, 748, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947). However, the fact that the Fifth Amendment creates a “right to recover just compensation,” First English, 482 U.S. at 315, 107 S.Ct. 2378 (quoting Jacobs, 290 U.S. at 16, 54 S.Ct. 26), does not mean that the United States has waived sovereign immunity such that the right may be enforced by suit for money damages. See Minnesota v. United States, 305 U.S. 382, 388, 59 S.Ct. 292, 83 L.Ed. 235 (1939) (“[I]t rests with Congress to determine not only whether the United States may be sued, but in what courts the suit may be brought.”).

The landowners’ arguments do not persuade us. First, the landowners have cited no case in which the Fifth Amendment has been found to provide litigants with the right to sue the government for money damages in federal district court. Instead,

The doctrine of sovereign immunity— not repealed by the Constitution, but to the contrary at least partly reaffirmed as to the States by the Eleventh Amendment—is a monument to the principle that some constitutional claims can go unheard. No one would suggest that, if Congress had not passed the Tucker Act, 28 U.S.C. § 1491(a)(1), the courts would be able to order disbursements from the Treasury to pay for property taken under lawful authority (and subsequently destroyed) without just compensation.

Webster v. Doe, 486 U.S. 592, 613, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (Scalia, J., dissenting) (citing Schillinger v. United States, 155 U.S. 163, 166-69, 15 S.Ct. 85, 39 L.Ed. 108 (1894)). The United States argues that a waiver of sovereign immunity typically requires two things: the existence of a right and provision of a judicial remedy. The Fifth Amendment details a broad right to compensation, but it does not provide a means to enforce that right. Courts must look to other sources (such as the Tucker Act and the Little Tucker Act) to determine how the right to compensation is to be enforced. See Bormes, 133 5.Ct. at 18.

Second, significant history contradicts the landowners’ argument. Even though the Fifth Amendment establishes a right to just compensation, there was a significant period of time in which litigants were unable to enforce that right by seeking money damages in court. Before the establishment of the Court of Claims in 1855, there was no statute that expressly allowed a litigant to sue the United States to enforce monetary obligations. See Bormes, 133 S.Ct. at 17. Instead, claimants who were owed money by the United States had to petition Congress directly for a private act appropriating the necessary funds, suggesting that property owners could not sue the United States in court to seek just compensation for a taking. Id.

In 1855, Congress created the Court of Claims—the predecessor of the modern Court of Federal Claims—and gave it authority to hear and determine “all claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States.” Act of Feb. 24,1855, ch. 122,10 Stat. 612. However, even after the Court of Claims was established, it was unclear whether litigants were still unable to seek compensation in court for a taking by the federal government. In Langford v. United States, 101 U.S. 341, 25 L.Ed. 101Q (1879), a landowner brought suit in the Court of Claims against the United States for the alleged seizure of his land and buildings. The Supreme Court dismissed the landowner’s claim, reasoning that the Court of Claims had no jurisdiction over tort claims against the United States; further, because the government seized the property under a claim of superior ownership the claim was based in tort, not contract. Id. at 342-44. With respect to takings, the Court stated:

It is to be regretted that Congress has made no provision by any general law for ascertaining and paying this just compensation. And we are not called on to decide that when the government, acting by the forms which are sufficient to bind it, recognizes that fact that it is taking private property for public use, the compensation may not be recovered in the Court of Claims. On this point we decide nothing.

Id. at 343-44.

In 1887, Cqngress enacted the Tucker Act. See Act of Mar. 3, 1887, ch. 359, 24 Stat. 5Q5. The Tucker Act, like the 1855 Act before it, “provided the Federal Government’s consent to suit in the Court of Claims for claims ‘founded upon ... any law of Congress.’ ” Bormes, 133 S.Ct. at 18 (citation omitted). The Tucker Act also expanded the Court of Claims’s jurisdiction to include “(a]ll claims founded upon the Constitution.” § 1, 24 Stat. 505 (codified as amended at 28 U.S.C. § 1491(a)(1)). Section 2 of the Tucker Act also created concurrent jurisdiction in the district court for claims of up to $1,000. “The Tucker Act’s jurisdictional grant, and accompanying immunity waiver”—allowing the Court of Claims to' hear all Constitutional claims and the district courts to hear such claims below a threshold amount—“supplied the missing ingredient for an action against the United States for the breach of monetary obligations not otherwise judicially enforceable.” Bormes, 133 S.Ct. at 18 (footnote omitted). The Tucker Act’s waiver of sovereign immunity, therefore, is a necessary ingredient for just-compensation claims brought against the United States.

3.

The landowners also assert that, even if Congress can condition the means by which their claims can be brought against the United States, it cannot deprive them of review by an Article III court. Contrary to the landowners’ contention, their claims are “public right” claims that Congress may assign to a non-Article III court for review.

Some background is necessary. The public rights doctrine allows Congress to remove consideration of certain matters from the judicial branch and to assign such consideration to legislative courts or administrative agencies. See Stem v. Marshall, 564 U.S. 462, 488-92, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). “[TJhere are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.” Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 284, 18 How. 272, 15 L.Ed. 372 (1855); see N. Pipeline Const. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 70, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (plurality opinion) (“[Controversies [between the government and others] may be removed from Art. Ill courts and delegated to legislative courts or administrative agencies for their determination.”).

At one time the public rights doctrine applied “only to matters arising ‘between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments,’ and only to matters that historically could have been determined exclusively by those departments.” N. Pipeline, 458 U.S. at 67-68, 102 S.Ct. 2858 (quoting Crowell v. Benson, 285 U.S. 22, 50, 52 S.Ct. 285, 76 L.Ed. 598 (1932) and citing Ex parte Bakelite Corp., 279 U.S. 438, 458, 49 S.Ct. 411, 73 L.Ed. 789 (1929)). The Supreme Court has since “rejected the limitation of the public rights exception to actions involving the Government as a party.” Stern, 564 U.S. at 490, 131 S.Ct. 2594. The Court explained that if a waiver of sovereign immunity is necessary before a ease may be brought then that case involves a public right. Id. at 489, 131 S.Ct. 2594 (“The challenge in Murray’s Lessee ... likewise fell within the ‘public rights’ category of cases, because it could only be brought if the Federal Government chose to allow it by waiving sovereign immunity.”). Thus, “it is still the case that what makes a right ‘public’ rather than private is that the right is integrally related to particular federal government action.” Id. at 490-91, 131 S.Ct. 2594 (citing United States v. Jicarilla Apache Nation, 564 U.S. 162, 174, 131 S.Ct. 2313, 180 L.Ed.2d 187 (2011)).

Alternatively, suits addressing a “private right” generally may not be assigned to a legislative court or administrative agency. See Stem, 564 U.S. at 494, 131 S.Ct. 2594; N. Pipeline, 458 U.S. at 70, 102 S.Ct. 2858. Private-right disputes “lie at the core of the historically recognized judicial power.” N. Pipeline, 458 U.S. at 70, 102 S.Ct. 2858. Private rights address “the liability of one individual to another under the law as defined,” id. at 69-70,102 S.Ct. 2858 (quoting Crowell, 285 U.S. at 51, 52 S.Ct. 285), and concern “a suit at the common law, or in equity, or admiralty,” three categories of cases “Congress may not ‘withdraw from [Art. III] judicial cognizance,’ ” Stern, 564 U.S. at 484, 131 S.Ct. 2594 (quoting Murray’s Lessee, 59 U.S. at 284).

The landowners’ compensation claims are public-right claims. These are claims made by private individuals against the government in connection with the performance of a historical and constitutional function of the legislative branch, namely, the control and payment of money from the treasury. Indeed, the Court of Claims, the predecessor to the Court of Federal Claims, derived its power from the “Congressional power ‘to pay the debts ... of the United States’, which it is free to exercise through judicial as well as non-judicial agencies.” Sherwood, 312 U.S. at 587, 61 S.Ct. 767 (quoting U.S. Const. art. 1, § 8, cl. 1); see Bakelite, 279 U.S. at 452, 49 S.Ct. 411 (explaining that the Court of Claims “was created, and has been maintained, as a special tribunal to examine and determine claims for money against the United States. This is a function which belongs primarily to Congress as an incident of its power to pay the debts of the United States”). Therefore, Congress may delegate the landowners’ just-compensation claims to a legislative court—the Court of Federal Claims—for resolution.

4.

But, the landowners argue, their just-compensation claims are “inherently judicial” and must be resolved by an Article III court. In support of their argument, Appellants primarily rely on Monongahela Navigation Co. v. United States, 148 U.S. 312, 327, 13 S.Ct. 622, 37 L.Ed. 463 (1893), for the proposition that the measure of compensation for a taking is a judicial question. Monongahela is inapposite. The Monongahela opinion addresses an 1888 private legislative act that ordered inadequate compensation for construction of a lock and dam. Id. at 344-45, 13 S.Ct. 622; see Act of Aug. 11, 1888, ch. 860, 25 Stat. 400, 410-12. The 1888 Act further provided that, should condemnation proceedings commence, jurisdiction over such proceedings was given to “the circuit court of the United States for the western district of Pennsylvania with right of appeal by either party” to the Supreme Court. Id. at 313, 13 S.Ct. 622 (quoting 25 Stat. at 411). Unlike the present case, the 1888 Act provided a specific Article III court with jurisdiction over the Monongahela litigants’ claims.

Further, to the extent that Monongahela dictates that a question of just compensation is a judicial determination, several courts of appeals have found that this requirement is satisfied when judicial review is available in an Article III court. For example, in Gulf Power Co. v. United States, 187 F.3d 1324 (11th Cir. 1999), the Eleventh Circuit considered whether the Pole Attachment Act violated the separation of powers doctrine by allowing the FCC to determine a utility’s compensation for a taking under the Act. The Eleventh Circuit found that the statutory scheme was constitutional because, while the FCC initially determined the utility’s compensation, the utility could appeal the FCC’s order directly to a federal appeals court. Thus, “[u]nder the statutory scheme, it is the judicial branch which will, consistent with Monongahela, make the ultimate determination of just compensation due for a taking of a utility’s property under the Act.” Id. at 1334; see Wis. Cent. Ltd. v. Pub. Serv. Comm’n of Wis., 95 F.3d 1359, 1369 (7th Cir. 1996) (explaining that the judicial determination requirement in Monongahela “is satisfied by the availability of judicial review. The Fifth Amendment does not require a judicial determination of just compensation in the first instance on each occasion of a taking of private property”); see also Elgin v. Dep’t of Treasury, 567 U.S. 1, 9,132 S.Ct. 2126, 183 L.Ed.2d 1 (2012) (noting that an administrative agency may address constitutional claims in the first instance, subject to meaningful judicial review by federal appellate courts, without presenting a “serious constitutional question” (citations omitted)). The United States Court of Appeals for the Federal Circuit has “exclusive jurisdiction” “of an appeal from a final decision of the United States Court of Federal Claims.” 28 U.S.C. § 1295(a)(3). The landowners will ultimately receive judicial review of their claims by an Article III court—the Federal Circuit.

The separation of powers doctrine does not prohibit Congress from denying the landowners the ability to bring their claims in an Article III forum. Therefore, the district court did not err by finding that the Tucker Act and the Little Tucker Act do not violate the separation of powers doctrine and by dismissing the landowners’ declaratory judgment claim on that basis.

B.

Congress’s conditional waiver of sovereign immunity from suits for money damages against the government also includes the requirement that claims brought in the Court of Federal Claims, or under the Little Tucker Act, shall be tried without a jury. 28 U.S.C. § 174; 28 U.S.C. § 2402. We appreciate the landowners’ desire to have their compensation claims heard by a jury. However, Congress’s denial of a jury trial for money damages claims against the United States is not a violation of the Seventh Amendment.

“It has long been settled that the Seventh Amendment right to trial by jury does not- apply in actions against the Federal Government.” Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981); see also City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 719, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). The Seventh Amendment protects the right to a jury trial for “[s]uits at common law.” U.S. Const. amend. VII; see City of Monterey, 526 U.S. at 708-09, 119 S.Ct. 1624. Suits against the United States for money damages are not suits at common law.

Suits against the government in the Court of Claims, whether reference be had to the claimant’s demand, or to the defen[s]e, or to any set-off, or counterclaim which the government may assert, are not controlled by the Seventh Amendment. They are not suits at common law within its true meaning. The government cannot be sued, except with its own consent. It can declare in what court it may be sued, and prescribe the forms of pleading and the rules of practice to be observed in such suits. It may restrict the jurisdiction of the court to a consideration of only certain classes of claims against the United States. Congress, by the act in question, informs the claimant that if he avails himself of the privilege of suing the government in the special court organized for that purpose, he may be met with a set-off, counterclaim, or other demand of the government, upon which judgment may go against him, without the intervention of a jury, if the court, upon the whole case, is of opinion that the government is entitled to such judgment. If the claimant avails himself of the privilege thus granted, he must do so subject to the conditions annexed by the government to the exercise of the privilege. Nothing more need be said on this subject.

McElrath v. United States, 102 U.S. 426, 440, 26 L.Ed. 189 (1880) (emphasis added); see Sherwood, 312 U.S. at 587, 61 S.Ct. 767; see also Glidden Co. v. Zdanok, 370 U.S. 530, 572, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962) (plurality opinion). In the present case, the landowners are taking advantage of the United States’s waiver of sovereign immunity and they must do so pursuant to the conditions of that waiver, including proceeding without a jury trial.

Further, the.Supreme Court has determined that “in cases in which ‘public rights’ are being litigated ... the Seventh Amendment does not prohibit Congress from assigning the factfinding function and initial adjudication to an administrative forum with which the jury would be incompatible.” Atlas Roofing Co. v. Occupational Safety and Health Review Comm’n, 430 U.S. 442, 450, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977) (footnote omitted). As explained above, claims against the United States for money damages are public-right claims. The Seventh Amendment thus does not prohibit Congress from denying the landowners the right to a jury trial for claims against the United States for money damages. Therefore, the district court did not err by dismissing the landowners’ declaratory judgment claim on that basis.

V.

The district court correctly determined that it lacked subject matter jurisdiction to consider the landowners’ claims and that the landowners failed to state a claim. The Tucker Act and the Little Tucker Act vest in the Court of Federal Claims exclusive jurisdiction to hear just-compensation claims against the United States for money damages in excess of $10,000. Further, the Tucker Act and the Little Tucker Act are constitutional and do not violate the separation of powers doctrine or the Seventh Amendment. We certainly appreciate the landowners’ desire to have their claims heard in an Article III court and by a jury. However, Congress may, as it has done here, place conditions upon its waiver of sovereign immunity and require that just-compensation claims for money damages in excess of $10,000 against the United States be heard in the Court of Federal Claims without a jury. We therefore AFFIRM the district court’s order.

      . The landowners also filed a parallel complaint in the United States Court of Federal Claims, Case No. 1:14-cv-567, alleging a claim for just compensation. The case is currently stayed pending the outcome of the landowners' suit in the Western District of Michigan and the present appeal. Brott, et al. v. United States, No. 1:14-cv-567 (Fed. Cl. Sept. 14, 2016).

      . The Court of Federal Claims does not provide a jury in any trial. "The judicial power of the United States Court of Federal Claims with respect to any action, suit, or proceeding, except congressional reference cases, shall be exercised by a single judge, who may preside alone and hold a regular or special session of court at the same time other sessions are held by other judges.” 28 U.S.C. § 174(a).

      . With one exception not relevant here, actions against the United States brought under the Little Tucker Act "shall be tried by the court without a jury.” 28 U.S.C. § 2402.

      .The landowners appealed their Little Tucker Act claim to the United States Court of Appeals for the Federal Circuit, Case No. 2016-1852, and their other two claims to this court. The Federal Circuit has stayed that appeal to allow the Sixth Circuit to rule on the subject matter jurisdiction issue. Brott, et al. v. United States, No. 2016-1852 (Fed Cir. July 5, 2016).

      . Among other claims, the plaintiff in Lenoir alleged a taking after improvements to a waterway resulted in flooding on his land, and brought suit in the district court seeking $750,000 in damages. 586 F.2d at 1084.

      . The Supreme Court has noted that “enterprising claimants” also pressed the so-called "officer’s suit” as a device for circumventing federal sovereign immunity in land title disputes with the federal government. See Block v. N.D. ex rel. Bd.. of Univ. & Sch. Lands, 461 U.S. 273, 281, 103 S.Ct. 1811, 75 L.Ed.2d 840 (1983). For example, the claimants in United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882), sought to recover land taken by the United States by filing a state-law ejectment action against the officers who supervised the land at issue. While the Supreme Court initially appeared to accept the device, such suits "ultimately did not prove to be successful.” Block, 461 U.S. at 281, 103 S.Ct. 1811.


source: Caselaw Access Project

author: JULIA SMITH GIBBONS, Circuit Judge.

license: Public Domain

text:
    Furniss HARKNESS, Plaintiff-Appellant, v. SECRETARY OF the NAVY, Defendant-Appellee.
    No. 16-5396
    United States Court of Appeals, Sixth Circuit.
    Argued: January 31, 2017
    Decided and Filed: May 31, 2017

      ARGUED: Arthur A. Schulcz, SR., CHAPLAINS’ COUNSEL, PLLC, Lees-burg, Virginia, for Appellant. Edward Himmelfarb, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Arthur A. Schulcz, SR., CHAPLAINS’ COUNSEL, PLLC, Leesburg, Virginia, for Appellant. Edward Himmelfarb, Marleigh D. Dover, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
    Before: GIBBONS, ROGERS, and McKEAGUE, Circuit Judges.
   OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Retired Navy chaplain Furniss Harkness sued the Secretary of the Navy (Secretary), alleging that prior to his retirement, the Navy denied him multiple promotions and duty assignments in violation of the First Amendment. On this basis, he claims that the Secretary’s refusal to convene special selection boards (SSBs) to reconsider him for promotion was arbitrary, capricious, and contrary to law under 10 U.S.C. § 14502. The district court granted the Secretary’s motion to dismiss and motion for summary judgment on all claims. For the reasons set forth below, we affirm.

I.

A.

The Chaplain Corps is a body of commissioned naval officers responsible for providing religious services to all members of the Navy and their families. Chaplains perform a bifurcated role, serving both as “clergy or ... professional representative[s] of a particular religious denomination and as ... commissioned naval offi-eer[s].” In re England, 375 F.Sd 1169, 1171 (D.C. Cir. 2004) (quoting OPNAVINST 1730.1, Chaplains Manual 1-2-1-3 (Dep’t of the Navy Oct. 3, 1973)). Navy chaplains are divided into four faith-group categories: Roman Catholic, liturgical Protestant, non-liturgical Protestant, and Special Worship.

Like other officers, chaplains are subject to congressionally-mandated promotion procedures, including consideration by an annual promotion board. These boards must consist of “five or more officers,” with “at least one officer” being from the same “competitive category” (e.g., the Chaplain Corps) as the officer being considered for promotion. 10 U.S.C. § 14102. Prior to 2003, chaplain promotion boards consisted of at least five members, one of whom was not a chaplain. Since 2003, chaplain promotion boards have been comprised of seven members: two chaplain officers—“nominated without regard to religious affiliation”—and five non-chaplain officers. SECNAVINST 1401.3A, Enel. (1), ¶ l.c(1)(f). All members of the board must take an oath to perform their duties “without prejudice or partiality.” 10 U.S.C. § 14103. The senior member of the board—normally the Chief of Chaplains or one of his deputies—may be appointed board president. SECNAVINST 1420.3B, ¶ 13.b. The board recommends for promotion those officers it “considers best qualified for promotion,” giving due consideration to the Navy’s needs for “officers with particular skills.” 10 U.S.C. § 14108. These recommendations are reported to the Secretary, who then forwards them to the Secretary of Defense for transmittal to the President for approval. Id. §§ 14109-14111.

A chaplain who is denied a promotion may challenge the promotion board’s decision pursuant to a statutory administrative-review scheme. Id. § 14502. The non-promoted officer must first petition the Secretary to convene an SSB to review the promotion board’s decision. Id. § 14502(a)-(b). In deciding whether to grant an SSB, the Secretary considers whether the original promotion board’s decision was contrary to law, suffered from administrative error, or suffered from a material error of fact. Id. If the Secretary determines that an SSB is warranted, an SSB is convened to review “the record of the officer ... as that record, if corrected, would have appeared to the mandatory promotion board that considered the officer or former officer.” Id. § 14502(b)(3). If the SSB concludes that a promotion was merited, the officer receives a retroactive promotion, as well as back pay. Id. § 14502(e). If the Secretary denies an SSB request, or if an SSB is convened and it denies a promotion, the petitioning officer may then seek review of that decision in federal court. Id. § 14502(g). If the reviewing court determines that an error has occurred, it must remand the case to the Secretary, who must provide for reconsideration of the officer by a new SSB. Id. § 14502(h). .

B.

Furniss Harkness is a now-retired Navy Reserve Chaplain. He was commissioned as an officer in the Navy Chaplain Corps in 1987 and endorsed by a non-liturgieal Christian church (Disciples of Christ). Harkness left active duty in 1995 and took reserve status. In 2000, Harkness joined sixteen other non-liturgieal chaplains in filing suit against the Navy, alleging systemic denominational prejudice in its promotion procedures. See Adair v. England, 183 F.Supp.2d 31, 38 (D.D.C. 2002). That suit, which has been appealed multiple times to the D.C. Circuit, is still pending in the United States District Court for the District of Columbia. See In re Navy Chaplaincy, 170 F.Supp.3d 21 (D.D.C. 2016).

In 2007, Harkness was denied promotion to the rank of Captain by a reserve officer promotion board. Harkness petitioned the Secretary for an SSB, alleging that the board was illegally composed, but the petition was denied. Harkness filed suit in 2010, claiming that under 10 U.S.C. § 14502(h)(1), the Secretary’s decision not to convene an SSB was arbitrary, capricious, and contrary to law. Harkness also sought a declaratory judgment that the Navy’s chaplain promotion procedures violated the Establishment Clause. The district court dismissed the constitutional claim for lack of jurisdiction, based on Harkness’s failure to exhaust administrative remedies under 10 U.S.C. § 14502(g). This court affirmed, holding that “§ 14502 creates a review scheme that is both exclusive and applicable to Harkness’s constitutional claim.” Harkness v. United States, 727 F.3d 465, 472 (6th Cir. 2013).

Harkness’s illegal-composition claim was eventually rendered moot when, in 2012, the Secretary agreed to convene an SSB to reconsider the 2007 promotion board’s decision. This SSB did not select Harkness for promotion (the “initial 2012 SSB”). In response, Harkness petitioned the Secretary for a second SSB to review the initial SSB’s decision (the “2012 SSB request”), which was denied due to statutory limitations for granting SSBs.

In 2013, Harkness was once again considered for and denied promotion by a reserve officer promotion board (the “2013 promotion board”). Harkness petitioned the Secretary for an SSB to review this decision (the “2013 SSB request”), arguing that reconsideration was necessary because the 2013 promotion board violated both Navy regulations and the Establishment Clause. Harkness’s constitutional claim was twofold. First, relying on statistical evidence, he alleged that the current procedures employed by promotion boards produced denominational preferences in promotion decisions. Second, he challenged the delegation of governmental authority to chaplains serving on promotion boards without effective guarantees that the power would be exercised in a neutral, secular manner. The Secretary denied Harkness’s request, reasoning that the 2013 promotion board was consistent with both Navy regulations and .the Establishment Clause.

Harkness filed suit in December 2013. He first claimed that, because both the 2012 SSB and the 2013 promotion board were convened in violation of Navy regulations and the Establishment Clause, the Secretary’s denial of both Harkness’s 2012 SSB request and his 2013 SSB request was arbitrary, capricious, and contrary to law under 10 U.S.C. § 14502(h)(1). Additionally, Harkness alleged that he was unlawfully denied various duty assignments during his Navy career in retaliation for his past litigiousness against the Navy.

The Secretary moved to dismiss Harkness’s First Amendment retaliation claim for lack of jurisdiction and moved for summary judgment on Harkness’s remaining claims. In response, Harkness moved for partial summary judgment on his constitutional challenge to the Navy’s promotion procedures, and also moved to stay further proceedings until discovery could be conducted. The district court granted the Secretary’s motions to dismiss and for summary judgment and denied Harkness’s motions. Harkness filed this timely appeal.

II.

A.

Harkness claims that he was denied various duty assignments in retaliation for his past litigiousness against the Navy—namely, a recorder position on promotion selection boards, an assignment working on the 2010 National Boy Scout Jamboree, a training position at Naval Region Europe, and various APPLY board positions. He alleges that the denial of these assignments violated the First Amendment and hindered his career advancement and promotion opportunities. The district court dismissed this claim as non-justiciable, a decision we review de novo. Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 278-79 (6th Cir. 1997) (citation omitted).

B.

Although some military personnel decisions are indeed reviewable, see Emory v. Sec’y of Navy, 819 F.2d 291, 294 (D.C. Cir. 1987) (promotion decision); Dunlap v. State of Tenn., 514 F.2d 130, 133 (6th Cir. 1975) (denial of re-enlistment), rev’d on other grounds, Tennessee v. Dunlap, 426 U.S. 312, 96 S.Ct. 2099, 48 L.Ed.2d 660 (1976), courts are generally reluctant to review claims involving military duty assignments, see Orloff v. Willoughby, 345 U.S. 83, 92-93, 73 S.Ct. 534, 97 L.Ed. 842 (1953); Schlanger v. United States, 586 F.2d 667, 671 (9th Cir. 1978) (listing cases). Several justifications for this rule exist: lack of expertise, deference to the unique role of the military in our constitutional structure, and the practical difficulties that would arise if every military duty assignment was open to judicial review. See, e.g., Antonellis v. United States, 723 F.3d 1328, 1332 (Fed. Cir. 2013); Sebra v. Neville, 801 F.2d 1135, 1141 (9th Cir. 1986); Wilson v. Walker, 777 F.2d 427, 429 (8th Cir. 1985).

In the seminal case of Orloff v. Wil-loughby, a doctor conscripted into the army challenged, among other things, his duty assignment as a medical laboratory technician. 345 U.S. at 85-86, 73 S.Ct. 534. The Court found that, although the doctor was required to receive assignments within the general medical field, the specific duties assigned to him within this field were beyond the Court’s power to review. Id. at 92-94, 73 S.Ct. 534 (“[W]e are convinced that it is not within the power of this Court ... to determine whether specific assignments to duty fall within the basic classification of petitioner.”).

Although Harkness accepts Orloff s general holding, he nevertheless asserts that claims for equitable relief regarding duty assignments are renewable when they involve the deprivation of constitutional rights. To support this proposition, he cites Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971). In Mindes, the Fifth Circuit, recognizing that Orloff did not involve a constitutional claim, articulated a test for determining the reviewability of a particular military decision. As a threshold matter, the Mindes court held that an internal military decision is unreviewable unless two initial requirements are satisfied: “(a) an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations, and (b) exhaustion of available intraservice corrective measures.” Id. at 201. If the plaintiff meets both prerequisites, then four factors must be weighed to determine justiciability: the nature and strength of the plaintiffs challenge; the potential injury to the plaintiff of withholding review; the degree of anticipated interference with the military function; and the extent to which military expertise or discretion is involved. Id. at 201-02. Although we have never explicitly endorsed the Mindes test, other circuits have adopted this test for determining the justiciability of claims involving internal military decisions. See, e.g., Williams v. Wilson, 762 F.2d 357, 359-60 (4th Cir. 1985); Schlanger, 586 F.2d at 671. Mindes provides a proper framework for analyzing the justiciability of Harkness’s First Amendment retaliation claim regarding the denial of duty assignments.

Under this framework, Harkness’s claim was non-justiciable. As an initial matter, Harkness’s claim is tenuous at best. He largely eschews specifics regarding the denial of his duty assignments (for example, the years the denials took place, the decision-makers involved, the knowledge these decision-makers had of his past litigiousness, or his qualifications for each assignment), and instead merely alleges in conclusory fashion that he was denied various duty assignments and that it was because of his prior claims against the Navy. The lack of detail and clarity in his argument cuts against a finding of justiciability under Mindes. 453 F.2d at 201.

Harkness fares no better under Mindes's second factor—the potential injury if review is withheld. Compared to the harm suffered when a soldier is wrongfully sent into combat or unlawfully discharged, for instance, the harm inflicted by the denial of a routine duty assignment is negligible. See Schlanger, 586 F.2d at 671-72. This is especially so where appointment to the positions was, as here, entirely discretionary. See, ‘e.g., BUPERSINST 1401.5B, ¶ 5; FY 2015 APPLY Board Convening Order, App’x A, ¶ e. Further, it is unclear what remedy Harkness could obtain through judicial review. Harkness does not seek damages. And since he is now retired, he can no longer be appointed to these positions, nor will the absence of these assignments on his record affect future promotion opportunities. Thus, there is no injury—past, present, or future—that could be obviated by judicial review of Harkness’s claim.

The third and fourth Mindes factors also militate against reviewability. Duty assignments lie at the heart of military expertise and discretion, and we are “wary of intruding upon that sphere of military decision-making.” Sebra, 801 F.2d at 1142. Subjecting every such assignment to judicial review would have a deleterious effect on the military’s performance of its vital operations and would impede its overall preparedness. Cf. Mindes, 453 F.2d at 199; see also Christojfersen v. Wash. State Air Nat’l Guard, 855 F.2d 1437, 1444-5 (9th Cir. 1988). Accordingly, Harkness’s First Amendment retaliation claim was non-jus-ticiable under Mindes.

III.

Harkness next challenges a pair of decisions by the Secretary refusing to convene an SSB to reconsider Harkness for a promotion. When a district court upholds an agency’s final decision on summary judgment under the Administrative Procedure Act (APA), we “review the district court’s summary judgment decision de novo, while reviewing the agency’s decision under the arbitrary and capricious standard.” City of Cleveland v. Ohio, 508 F.3d 827, 838 (6th Cir. 2007) (citation omitted). Although the APA does not apply in this case, § 14502(h) provides comparable standards for reviewing the propriety of the Secretary’s decisions. Specifically, we must ask whether the Secretary’s decisions were “arbitrary or capricious, not based on substantial evidence, or otherwise contrary to law.” 10 U.S.C. § 14502(h)(1). An agency’s decision “is arbitrary and capricious if there is no evidence to support the decision, or it is based on an improper understanding of the law.” Charter Twp. of Van Buren v. Adamkus, 188 F.3d 506, 1999 WL 701924, at *2 (6th Cir. 1999) (table disposition) (citation omitted).

A.

Harkness asserts that the Secretary’s denial of his 2012 SSB request was arbitrary, capricious, and contrary to law under § 14502(h)(1) because his initial 2012 SSB—the one convened to review the 2007 promotion board’s decision—violated the Establishment Clause. We need not reach the constitutional question in connection with the 2012 SSB request, however, because the Secretary did not have statutory authority to convene a second SSB to review the actions of the initial 2012 SSB. Accordingly, his decision was not arbitrary, capricious, or contrary to law.

Harkness received an initial SSB on August 9, 2012, to review the 2007 promotion board’s decision to deny him a promotion. After consideration, the SSB did not select Harkness for a promotion. Instead of seeking review of this decision in federal court under § 14502(h)(2), Harkness petitioned the Secretary for a second SSB to review the initial SSB’s decision. As the Secretary stated in his decision denying Harkness’s 2012 SSB request, however, he had no statutory or regulatory authority to grant Harkness’s request. Section 14502(b) authorizes the Secretary to convene an SSB only in cases where an officer was denied a promotion by a promotion board, not another SSB. See § 14502(b) (providing that the Secretary may convene an SSB “[i]n the case of an officer or former officer who was eligible for promotion and was considered for selection for promotion ... by a mandatory promotion board convened under section 14101(a) of this title but was not selected”). Navy policy similarly limits the Secretary’s ability to grant SSBs to situations where a “promotion selection board” acted “contrary to law,” committed “material error,” or “did not have material information before it.” SECNAVINST 1420.1B, ¶ 24(e). Accordingly, because the Secretary lacked legal authority to grant Harkness’s 2012 SSB request, his denial of that request was not arbitrary, capricious, or contrary to law under § 14502(h)(1).

B.

Harkness also claims that the denial of his 2013 SSB request was arbitrary, capricious, and contrary to law under § 14502(h)(1) for two reasons. First, he claims that 2013 promotion board member Captain William Wildhack had “duties related to officer community management,” which allegedly barred him from board membership. Second, Harkness alleges that the 2013 promotion board violated the Establishment Clause. Harkness claims that failing to recognize these flaws in the 2013 promotion board necessitates a finding that the Secretary’s denial of his 2013 SSB request was arbitrary, capricious, and contrary to law. We address each argument in turn.

1.

We note, initially, that Harkness’s claim regarding Captain Wildhack was not presented to the Secretary in Harkness’s 2013 SSB request, nor was it in his complaint filed with the district court. In his SSB request, Harkness alleged that Wildhack was barred from board participation due only to Wildhack’s status as a “detailer,” not because he had “duties related to officer community management.” Because Harkness has not administratively exhausted this claim, we lack jurisdiction to entertain it. See Harkness, 727 F.3d at 470.

2.

Harkness’s Establishment Clause challenge also falls short. Although, at times, he fuses the two, Harkness’s claim rests on two distinct theories: (1) that the promotion board procedures result in denominational preferences in chaplain-promotion decisions; and (2) that the Navy impermissibly delegates, in the form of promotion decisions, governmental authority to religious entities without effective guarantees that such authority will be exercised in a neutral, secular manner.

We engage in a two-step inquiry when analyzing Establishment Clause claims. First, if the challenged government practice prefers one religion over another, we apply strict scrutiny in adjudging its constitutionality. Larson v. Valente, 456 U.S. 228, 246, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982). Second, if the challenged practice does not differentiate among religions, we apply the three-pronged test laid out in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).

As an initial matter, the parties disagree on what is required to trigger strict scrutiny under Larson. Harkness claims that only a “suggestion of preference” is required to trigger strict scrutiny, citing County of Allegheny v. ACLU, 492 U.S. 573, 608-09, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), for support. The Secretary disagrees, arguing that strict scrutiny applies only when the law facially prefers one religion over another. Because the Secretary’s approach is more consistent with both Supreme Court and our precedent, we require a facial preference among religions to trigger strict scrutiny. See Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680, 695, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) (noting that “Larson teaches that, when it is claimed that a denominational preference exists, the initial inquiry is whether the law facially differentiates among religions”); Gillette v. United States, 401 U.S. 437, 450, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971) (“The critical weakness of petitioners’ establishment claim arises from the fact that [the statute], on its face, simply does not discriminate on the basis of religious affiliation.” (emphasis added)); Wilson v. N.L.R.B., 920 F.2d 1282, 1287 (6th Cir. 1990) (“When a law facially differentiates among religions, it is subject to strict scrutiny.”); see also In re Navy Chaplaincy, 738 F.3d 425, 430 (D.C. Cir.2013) (analyzing the same procedures at issue here and concluding that, “[a]s the challenged policies are facially neutral, Larson doesn’t trigger strict scrutiny”).

Judged against this standard, strict scrutiny does not apply here. Chaplain promotion board members are nominated without regard to their religious affiliation, see SECNAVINST 1401.3A, Enel. (1), ¶ l.c(l)(f), and each board member must take an oath to perform his duties “without prejudice or partiality,” 10 U.S.C. § 14103. Additionally, the board is instructed to recommend for promotion those officers it “considers best qualified for promotion,” not those adhering to a particular religious denomination. 10 U.S.C. § 14108. Accordingly, because the promotion procedures do not facially prefer one religion over another, we apply the Lemon test.

In order to pass constitutional muster under Lemon, the challenged government practice must: (1) have a “secular legislative purpose,” (2) have a “principal or primary effect ... that neither advances nor inhibits religion,” and (3) not result in “excessive government entanglement with religion.” 403 U.S. at 612-13, 91 S.Ct. 2105; see Wilson, 920 F.2d at 1287. Harkness does not challenge the Navy’s promotion procedures under the first or third prong of Lemon. Thus, we must determine only whether the Navy’s promotion procedures have the “primary effect” of advancing religion, or, as reformulated by this court, whether they have “the purpose or effect of endorsing religion.” A.C.L.U. v. DeWeese, 633 F.3d 424, 434 (6th Cir. 2011) (citation omitted). This requires asking “whether a reasonable observer acquainted with the text, history, and implementation” of the challenged procedures would.view them as a government endorsement of religion. Id.

Harkness identifies several promotion board procedures that he claims facilitate the use of religion in promotion decisions: the general presence of chaplains on promotion boards; the anonymous voting process; the small number of board members, allowing one member to vote “zero” and effectively destroy a candidate’s chances for promotion; the use of the Chief of Chaplains (“Chief’) or one of his deputies as board president, resulting in improper influence over voting decisions; and permitting one board member to brief the other members on a candidate’s record instead of having each board member individually review such record.

A reasonable observer reviewing these procedures—with knowledge of their text, history, and implementation—would not, without more, infer government endorsement of religion. First, at least one chaplain is required by statute to serve on the chaplain promotion boards because they are officers belonging to the same “competitive category” as the officer being considered for promotion. See 10 U.S.C. § 14102(c). Second, any denominational influence the Chief may have on the voting of other board members is actually counteracted by the anonymous voting process, which ensures each member may vote based on his own conscious and free from any undue influence. Third, Harkness has not alleged that the chaplain promotion board’s size, method of voting, or method of reviewing a candidate’s record differs from the promotion boards considering other officers. If the Navy employs these procedures for other promotion boards, then its use of them for chaplain promotion boards cannot be perceived as an effort to endorse religion. Therefore, as the challenged policies themselves are facially neutral, Harkness is left arguing, in effect, that a “reasonable observer, contemplating the results of the policies (as gathered in [Harkness’s] statistical evidence), would infer that the government had as a practical matter endorsed” the use of religion in chaplain-promotion decisions. In re Navy Chaplaincy, 738 F.3d at 430 (emphasis added).

Harkness cites two statistical studies to support this contention. From these studies, he relies primarily on two statistics: (1) from 1981-2000, a 10% advantage in promotion to Commander for officers of the same denomination as the Chief (83% - 73%); and (2) from 1981-2000, a 28% advantage in promotion to Captain for officers of the same denomination as the Chief (78% - 50%). We agree with the D.C. Circuit that, even “[ajssuming arguendo that it is proper to see the ‘reasonable observer’ as a hypothetical person reviewing an array of statistics ..., the figures in this case would not lead him to perceive endorsement.” In re Navy Chaplaincy, 738 F.3d at 431.

First, the data on which Harkness primarily relies covers a period that ended fifteen years ago, when the composition of promotion boards was different from the 2013 board that considered Harkness. For example, promotion boards prior to 2003 consisted of five or more members, only one of which was not a chaplain. Id. at 427. Harkness’s board, conversely, consisted of seven members, only two of which were chaplains. SECNAVINST 1401.3A, Enel. (1), ¶ 1.c(1)(f). Any denominational preferences that existed in pre-2003 promotion boards, therefore, have largely been mitigated by the current procedures in which non-chaplain board members far outnumber chaplain members. It would thus be unreasonable for an observer to infer that, because religious affiliation may have played a role in promotion decisions for boards convened more than fifteen years ago, religion was also a factor in the 2013 promotion board’s decision not to promote Harkness.

Second, even assuming that Harkness’s data is relevant to the 2013 promotion board’s decision, it suffers from another fatal flaw. As the D.C. Circuit noted, even if Harkness’s data is statistically significant, that means only that the disparity in promotion decisions was not “due to chance.” In re Navy Chaplaincy, 738 F.3d at 431. And because Harkness’s statistical studies fail to control for other confounding factors—such as, promotion ratings, education, or leadership skills—we, as well as the reasonable observer, are left still searching for the actual cause of the statistical discrepancy in Harkness’s data. See id. From this ambiguity one could not reasonably perceive government endorsement of religion under Lemon. Cf. Parra-Morela v. Holder, §04 Fed.Appx. 461, 462 (6th Cir. 2012) (noting that “administrative agencies are entitled to a presumption that they ‘act properly and according to law1 ” absent “clear evidence to the contrary” (quoting FCC v. Schreiber, 381 U.S. 279, 296, 85 S.Ct. 1459, 14 L.Ed.2d 383 (1965))).

Harkness disagrees. He cites a number of Title VII cases for the proposition that a statistical analysis that fails to account for factors other than discrimination can still be probative of discrimination, especially when considered in light of other evidence of discrimination in the record. See Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986); Phillips v. Cohen, 400 F.3d 388, 400-01 (6th Cir. 2005); Scales v. J.C. Bradford & Co., 925 F.2d 901, 908-09 (6th Cir. 1991). But that is exactly what distinguishes these cases from Harkness’s: here there is no other evidence of religious discrimination in the record. To be sure, Harkness points to other evidence of discriniination he alleges the district court ignored, such as Inspector General investigations, anecdotal evidence from other Navy officers, and statistical studies covering more recent promotion boards. But this evidence was not presented to the Secretary, nor is it part of the administrative record. And, even assuming Harkness lacked access to this evidence prior to filing his 2013 SSB request, he has no excuse: “Navy regulations left Harkness free to file a new petition with the Secretary based on the previously unavailable evidence.” Harkness, 727 F.3d at 473 (citing SECNAVINST 1420.1B, ¶ (24)(e)(5)). Because he did not do so, the district court properly ignored this evidence and found Harkness’s statistical data insufficient to show endorsement under Lemon.

Perhaps recognizing the weakness of his position, Harkness proffers another reason why his 2013 promotion board violated the Establishment Clause: it was an impermissible delegation of governmental authority to a religious entity without effective guarantees that such authority would be exercised in a neutral, secular manner. In support of this claim, Harkness cites Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982), and Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994). In Larkin, the Supreme Court struck down a Massachusetts statute giving churches an effective veto power over the issuance of liquor licenses to establishments within 500 feet of their premises. 459 U.S. at 123, 103 S.Ct. 505. The Court found that the statute violated the Establishment Clause because the power delegated to the churches was “standardless, calling for no reasons, findings, or reasoned conclusions” and because there were no “effective means of guaranteeing that the delegated power w[ould] be used exclusively for secular, neutral, nonideological purposes.” Id. at 125, 103 S.Ct. 505 (citation omitted). In Grumet, the Supreme Court invalidated on Establishment Clause grounds a New York statute creating a special school district for a Jewish sect. 512 U.S. at 702, 114 S.Ct. 2481. In doing so, the court noted that “[w]here ‘fusion’ is an issue, the difference lies in the distinction between a government’s purposeful delegation on the basis of religion and a delegation on principles neutral to religion, to individuals whose religious identities are incidental to their receipt of civic authority.” Id. at 699, 114 S.Ct. 2481. Judged against these precedents, the Navy’s chaplain promotion procedures do not violate the Establishment Clause.

First, unlike the statutory scheme in Larkin, Congress and the Secretary have “articulated secular, neutral standards to guide selection board members in evaluating candidates for promotion.” In re Navy Chaplaincy, 697 F.3d 1171, 1179 (D.C. Cir. 2012). Each promotion board member must take an oath to perform their duties “without prejudice or partiality.” 10 U.S.C. § 14103. Board members are required by statute to recommend those officers it “considers best qualified for promotion,” 10 U.S.C. § 14108, and the Secretary must provide those members with “guidance relating to the needs of the Navy ... for officers with particular skills in each competitive category, and other information and guidelines as necessary to enable the board to perform its functions properly,” SECNAVINST 1420.1B, ¶ 13.d(2). Moreover, unlike the plenary veto power given to the churches in Larkin, “here the two chaplains on the selection boards share decision-making authority with five others, and the board’s promotion decisions are subject to further review by the Secretary of the Navy and the Secretary of Defense.” In re Navy Chaplaincy, 697 F.3d at 1179; see 10 U.S.C. §§ 14110-14111. Thus, effective measures exist to. ensure that “the delegated power [is] used exclusively for secular, neutral, nonideological purposes.” Larkin, 459 U.S. at 125, 103 S.Ct. 505.

Second, unlike the delegation to the Jewish sect in Grumet, the delegation of power to the chaplain promotion boards is made “on principles neutral to religion, to individuals whose religious identities are incidental to their receipt of civic authority.” 512 U.S. at 699, 114 S.Ct. 2481. The chaplain board members are appointed “without regard to religious affiliation.” SECNAVINST 1401.3A, Enel. (1), ¶ 1.c(1)(f). They serve on promotion boards solely because they are Navy officers from the same “competitive category” as the officer being considered for promotion. 10 U.S.C. § 14102. Thus, any governmental authority chaplains exercise while serving on a promotion board is employed not in their capacity as a religious representative, but as a Navy officer evaluating the secular qualifications of them fellow officer. Cf. Mistretta v. United States, 488 U.S. 361, 404, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (noting, in discussing Article III judges’ appointment to the Sentencing Commission, “the Constitution, at least as a per se matter, does not forbid judges to wear two hats; it merely forbids them to wear both hats at the same time”). The delegation of this power does not violate the Establishment Clause.

Because the 2013 promotion board was not constitutionally infirm, the Secretary’s denial of Harkness’s 2013 SSB request was not arbitrary, capricious, or otherwise contrary to law under § 14502(h)(1). Accordingly, we affirm the district court on this claim.

IV.

A.

Finally, Harkness argues that the district court erred in not permitting discovery beyond the administrative record. “ ‘[A] district court’s refusal to supplement the administrative record’ is akin to-‘a district court’s denial of discovery’ ” and thus is reviewed on appeal “for an abuse of discretion.” Sierra Club v. Slater, 120 F.3d 623, 639 (6th Cir. 1997) (quoting James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996)). “An abuse of discretion occurs when the reviewing court is left with the definite and firm conviction that the trial court committed a clear error of judgment.” F.T.C. v. E.M.A. Nationwide, Inc., 767 F.3d 611, 623 (6th Cir. 2014) (citation omitted).

B.

Harkness concedes that review of the Secretary’s decisions under § 14502(h)(1) is generally limited to the administrative record, but claims that an exception applies here. Specifically, Harkness argues that supplementation of the record is necessary because the Secretary “failed to consider all appropriate factors” and because the “original record was tainted by fraud.” CA6 R. 17, at 65-66.

We have stated, in the context of APA review, that supplementation of the administrative record is appropriate where “an agency deliberately or negligently excludes certain documents, or when the court needs certain ‘background information in order to determine whether the agency considered all of the relevant factors.’” Slater, 120 F.3d at 638 (quoting Ludwig, 82 F.3d at 1095). There must also be a “strong showing of bad faith.” Id. (internal quotation marks and citation omitted). Harkness has not made the requisite showing here.

Harkness reasserts his claim that the Secretary failed to consider that Captain Wildhack had “duties related to officer community management,” which barred him from 2013 promotion board membership. CA6 R. 17, at 63-64. But this is not an argument that the record is somehow deficient; instead, this is a claim that goes to the merits of the Secretary’s decision under § 14502(h). And, as discussed above, there is a good reason why the Secretary failed to consider this claim: Harkness did not raise it in his 2013 SSB request. Not having done so, he is barred from raising the claim now. See Harkness, 727 F.3d at 470 (noting that a “court may not entertain a reserve officer’s non-promotion claim until [he] has first presented it to the Secretary”).

Harkness also argues that the Secretary failed to consider two pieces of evidence related to his non-promotion claims: (1) a declaration by a retired Navy chaplain detailing Navy leadership’s pervasive hostility against Harkness; and (2) an anonymous witness’s statement that he overheard two SSB board members state they were present at Harkness’s hearing “to defend the interests” of the Secretary. CA6 R. 17, at 64-67. But the Secretary did not act in bad faith in refusing to consider this evidence, nor did the Secretary deliberately or negligently exclude this information from the record. See Slater, 120 F.3d at 638. Harkness simply failed to include this evidence in his SSB petitions. Allowing Harkness to present this evidence in the first instance to the district court, without any wrongdoing by the Secretary, would circumvent § 14502(g)’s explicit exhaustion requirement. See Harkness, 727 F.3d at 470. Thus, because Harkness has provided no justification for supplementing the administrative record in this case, the district court did not abuse its discretion in denying discovery.

V.

For the reasons stated above, we affirm the judgment of the district court.

      . Harkness raised, and the district court addressed, various other claims that are not before this court on appeal.

      . Although Mindes contemplated potential review of non-constitutional claims involving internal military decisions, see Mindes, 453 F.2d at 201, we express no view as to whether the Mindes framework should apply to non-constitutional claims. Thus, we do not decide whether Orloff continues to categorically bar review of non-constitutional claims involving military duty assignments in this circuit.

      . There is no dispute that Harkness has met Mindes’s two threshold requirements.

      . Although Harkness provided many reasons why his initial 2012 SSB was invalid in his 2012 SSB request to the Secretary, he offers only the Establishment Clause claim on appeal.

      . The Secretary asks us to characterize Harkness's Establishment Clause claim as one of religious discrimination under the Equal Protection Clause. But, because Harkness bases his challenge explicitly on the Establishment Clause, we examine the merits of his claim under only that constitutional provision.

      . Although Harkness appears to frame his Establishment Clause claim as a general challenge to the Navy's chaplain promotion procedures in both his complaint and appellate brief, that is the improper framework. Because Harkness is now retired, he lacks standing to challenge the constitutionality of any future promotion boards, nor does § 14502 provide him that option. See Harkness, 727 F.3d at 471. Instead, he can challenge only the constitutionality of past promotion boards—and even then only the 2012 SSB and the 2013 promotion board that denied him a promotion. This is so because the proper mechanism through which a naval reserve officer may challenge a constitutional error in a promotion board is to petition the Secretary to convene an SSB under § 14502(b). In fact, Navy regulations provide for exactly this type of situation. SECNAVINST 1420. IB, ¶ 24(e)(3)(b) (stating that errors '‘depriving] the officer concerned of a constitutional ... right” are per se material). If the Secretary finds that no constitutional error occurred and denies the officer's SSB request, the officer is then free to seek review of that decision in federal court, which must review it under the standards articulated in § 14502(h)(1): asking whether the Secretary's decision was arbitrary, capricious, or otherwise contrary to law. Naturally, a Secretary's refusal to convene an SSB to review an unconstitutional promotion board would be "contrary to law.”
      Accordingly, Harkness’s Establishment Clause claim is not a standalone claim, but rather another basis on which Harkness may challenge the Secretary’s denial of his 2012 and 2013 SSB request. And, like all other claims brought under § 14502(h), it is reviewed on the administrative record. See Harkness, 727 F.3d at 472; infra Part IV.B.

      . The Secretary found that the size and composition of Harkness's promotion board was comparable to the promotion boards for other Navy officers.

      . Although Harkness claims that these factors are irrelevant in promotion decisions, the 2013 promotion board that considered Harkness was required to consider each of these factors in making its promotion decision.

      . Harkness also argues that discovery was necessary because "[cjonstitutional issues cannot be decided on the administrative record.” CA6 R. 17, at 62. This argument lacks merit. First, there is no general bar to reviewing constitutional claims on an administrative record. See 5 U.S.C. § 706(2)(B). Second, because Harkness’s retaliation claim is non-jus-ticiable, discovery was unnecessary on that claim. Third, for reasons discussed in note 6, supra, Harkness's Establishment Clause claim is properly reviewed on the administrative record.


author: PER CURIAM.

text:
    R. Sherwin PARUNGAO, Plaintiff-Appellant, v. COMMUNITY HEALTH SYSTEMS, INC., et al., Defendants-Apellees
    No. 16-3021
    United States Court of Appeals, Seventh Circuit.
    Argued April 26, 2017
    Decided May 24, 2017

      Robert M. Shupenus, Attorney, Chicago, IL, for Plaintiff-Appellant.
    Robert S. Burtker, Anthony Joseph Longo, Attorneys, BRENNAN GARVEY, LLC, Chicago, IL, for Defendants-Appel-lees.

      Before WOOD, Chief Judge, and RIPPLE and SYKES, Circuit Judges.
   PER CURIAM.

This is the fourth lawsuit that Dr. R. Sherwin Parungao, a surgeon, has brought against affiliates of Galesburg Cottage Hospital. The district court ruled that Dr. Parungao’s complaint was barred by res judicata and Illinois’s closely related single-refiling rule. Because we agree that this suit violates the doctrine of res judica-ta, we affirm the district court’s judgment.

I

BACKGROUND

Dr. Parungao began practicing surgery at Galesburg Cottage Hospital in 2006. He first worked as a private practitioner, but later accepted employment with Knox Clinic, which supplies doctors for the hospital. Knox Clinic told Dr. Parungao in May 2013 that it was discharging him without cause, as allowed under his employment agreement. Dr. Parungao believes that the hospital orchestrated this discharge to harm his career. He asserts that before Knox Clinic fired him, the hospital’s medical executive committee manipulated the peer-review process to insinuate that he had performance problems and make it difficult for him to secure future employment. Dr. Parungao later resigned from Galesburg and sought other employment, but alleges that he was thwarted in those efforts by the hospital and its doctors.

This is not the first time Dr. Parungao has attempted to recover based on these, or similar, allegations. His first suit against Galesburg Cottage Hospital and its corporate affiliates was voluntarily dismissed. See Doe v. Cmty. Health Sys. Prof'l Servs. Corp., Galesburg Hosp. Corp., & Knox Clinic Corp., No. 2013-CH-73 (Knox Cty., Ill. Cir. Ct., filed July 15, 2013). The day after he voluntarily dismissed that action, Dr. Parungao filed another petition in the same court, requesting to refile the case under seal and under a fictitious name. That petition was denied, so no complaint or suit was filed. Dr. Pa-rungao then brought another suit in state court against the chief of the medical staff at Galesburg, Dr. Daniel K. Piper. See Parungao v. Piper, No. 2013-L-40 (Knox Cty., Ill. Cir. Ct., filed Oct. 21, 2013). Because this appeal and the defense of res judicata rest on the relationship between the Piper litigation and Dr. Parungao’s current federal lawsuit, we briefly compare the allegations set forth in the two relevant complaints.

In October 2013, Dr. Parungao sued Dr. Piper for defamation in circuit court in Knox County, Illinois. That lawsuit focused on the time during which Dr. Parungao sought employment at other hospitals after he resigned from Galesburg. He alleged that Dr. Piper had made false and harmful representations to hospital entities with which he sought employment. These representations, made in letters bearing Gales-burg Cottage Hospital letterhead, suggested to those entities that Dr. Parungao had been the subject of some type of nondisei-plinary action related to his professional conduct. The relevant allegations from the Piper complaint are set forth below:

7. Although Dr. Parungao’s privileges to practice at GCH [Galesburg Cottage Hospital] remained intact, Dr. Parungao ceased performing surgeries at GCH on or about May 15, 2013, and he thereafter sought employment elsewhere.
8. On or about May 28, 2013, Dr. Piper represented to Gaye Shaw, Director of Medical Staff Affairs at St. Mary’s Hospital in Centralia, Illinois (collectively “St. Mary’s”) that he was authorized to respond to a request by St. Mary’s for verification of Dr. Parungao’s staff privileges and credentials at GCH.
9. On or about May 28, 2013, Dr. Piper represented to Natalie Brown, Medical Staff Coordinator at Weatherby Locums in Fort Lauderdale, Florida (collectively “Weatherby”) that he was authorized to respond to a request by Weatherby for verification of Dr. Parungao’s staff privileges and credentials at GCH.
10. Dr. Piper informed St. Mary’s and Weatherby that Dr. Parungao was not the subject of any disciplinary action as a member of the Medical Staff, he was the subject of “other action” as a result of an ongoing review related to his participation in an impaired practitioner program.
11. Dr. Piper defined “other action” as follows:
Other Actions:
This category includes any resignation while under investigation, termination of the physician’s relationship with the Hospital via contract for reasons related to competence or professional conduct, active participation in an impaired practitioner program due to a directive of the MEC [Medical Executive Committee], peer review committee or impaired practitioner committee (where disclosure is permitted by law), and formal reprimands.
16. The information Dr. Piper conveyed to St. Mary’s and Weatherby regarding the existence of “other action” against Dr. Parungao was false.[]

The Illinois circuit court granted Dr. Piper’s motion to dismiss for failure to state a claim of defamation, and the Appellate Court of Illinois affirmed the dismissal. Parungao v. Piper, No. 3-14-0197, 2014 WL 7251127, at *4-8 (Ill. App. Ct. Dec. 18, 2014), reh’g denied and amended (Ill. App. Ct. Jan. 28, 2015).

Dr. Parungao then filed the present lawsuit in federal court in the Northern District of Illinois. While the earlier Piper suit focused on the letters Dr. Piper had sent that kept Dr. Parungao from obtaining employment with Weatherby and St. Mary’s (and named only Dr. Piper as a defendant), the present suit focuses on the events leading up to those same letters (and excludes Dr. Piper as a defendant). Dr. Parungao alleges that Galesburg’s medical staff president, Dr. Mark E. Davis, initiated a sham peer-review process against him for personal reasons. He refused to participate and later received confirmation that “no adverse action was ever taken or recommended against him.” Dr. Parungao alleges that the process undertaken by the hospital constituted a breach of contract, tortious interference with contractual relations, intentional infliction of emotional distress, and civil conspiracy.

As in the Piper complaint, Dr. Parungao also alleges that, after this process was initiated, he “sought employment with other healthcare entities,” which “submitted requests for verification that [he] was in good standing on GCH’s medical staff.” And, also just as in the Piper complaint, he alleged that he had trouble obtaining further employment with those healthcare entities because of the responses of the hospital defendants. But rather than attribute his troubles specifically to Dr. Piper’s letters to Weatherby and St. Mary’s, he broadened his allegation as follows:

44. Despite the fact that plaintiff was at all times in good standing and not subject to any disciplinary proceedings or adverse actions, GCH refused to provide these healthcare entities with verification of the same, thereby hindering plaintiffs ability to obtain privileges with the medical staffs of other healthcare entities.[]

Nonetheless, this timeline of events, including Galesburg’s “refusal to verify” Dr. Parungao’s good standing, is consistent with the timeline in Piper, which alleged that Dr. Piper’s responses to Weatherby and St. Mary’s contained false and harmful information about his standing on the medical staff.

Dr. Parungao moved in the district court for a protective order and supervision of discovery, and in his attached memorandum of law he confirmed this overlap between the allegations in his two suits. His motion referred to and attached Dr. Piper’s letters to Weatherby and St. Mary’s and used language similar to that used in his Piper complaint to describe the content of those letters as false. The motion attributed the'letters to the defendants in this case and characterized them as evidence of a conspiracy among the hospital defendants to ruin his professional standing. The motion sought a protective order to allow Dr. Parungao to obtain potentially privileged information from the hospital defendants about the “other actions” described in Dr. Piper’s letters as well as any other supposed peer-review processes that had occurred. The district court denied Dr. Parungao’s motion.

All but one of the defendants moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Community Health Systems, Inc., moved to dismiss for lack of personal jurisdiction.) They argued that Dr. Parungao’s complaint was barred by res judicata and Illinois’s related single-refiling rule, see 735 ILCS § 5/13-217, which provides that a suit, once voluntarily dismissed, can be refiled only one time. Several of the defendants referred to Dr. Parungao’s motion for a protective order in their motions to dismiss, asserting that Dr. Parungao’s motion in effect acknowledged that his federal suit was based on the same facts as alleged in the Piper suit. Dr. Parungao, however, responded that there was no privity between Dr. Piper and the medical defendants, so that neither res judicata nor the single-refiling rule could support dismissal.

The district court dismissed Dr. Parun-gao’s complaint. It ruled that Dr. Parun-gao was impermissibly attempting to reliti-gate the Piper complaint, which had been fully and fairly litigated in the Illinois courts. The district court decided that both the current suit and the Piper suit were “refilings” of Dr. Parungao’s first, voluntarily dismissed, complaint in state court. Accordingly, the court concluded that both res judicata and the single-refiling rule supported dismissal. Dr. Parungao timely appeals.

II

DISCUSSION

Dr. Parungao contends that neither res judicata nor the Illinois single-refiling rule supported dismissing his complaint. He argues that the question whether the hospital defendants in this ease are in “privity” with Dr. Piper, as required for preclusion rules to apply, cannot be decided now. We conclude that the district court correctly ruled that res judicata barred the complaint, and therefore do not reach the applicability of Illinois’s single-refiling rule.

The principles governing our review are clearly established. In reviewing a dismissal under Federal Rule of Civil Procedure 12(b)(6), we accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. Anicich v. Home Depot U.S.A, Inc., 852 F.3d 643, 648 (7th Cir. 2017). In this procedural posture, district courts ordinarily should not dismiss a complaint based on an affirmative defense such as res judicata. But when it is “clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiffs claims are barred as a matter of law,” dismissal is appropriate. Conopco, Inc. v. Roll Int’l, 231 F.3d 82, 86 (2d Cir. 2000); see Watkins v. United States, 854 F.3d 947, 949-51 (7th Cir. 2017) (ruling that court could take judicial notice of earlier state-court complaint and thereby dismiss based on an affirmative defense). Courts may take judicial notice of court filings and other matters of public record when the accuracy of those documents reasonably cannot be questioned. See Adkins v. VIM Recycling, Inc., 644 F.3d 483, 492-93 (7th Cir. 2011); Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080-81 (7th Cir. 1997).

We apply Illinois’s law of res judicata to this diversity action. See Harmon v. Gordon, 712 F.3d 1044, 1054 (7th Cir. 2013) (applying Illinois law). The doctrine of res judicata, also known as claim preclusion, applies if there is “(1) a final judgment on the merits rendered by a court of competent jurisdiction; (2) an identity of the causes of action; and (3) an identity of the parties or their privies.” Rose v. Bd. of Election Comm’rs for the City of Chi, 815 F.3d 372, 374 (7th Cir. 2016) (applying Illinois law). If the doctrine applies, the plaintiff is barred from raising “not only every matter that was actually determined in the first suit, but also every matter that might have been raised and determined in that suit.” Chicago Title Land Trust Co. v. Potash Corp. of Saskatchewan Sales Ltd., 664 F.3d 1075, 1079 (7th Cir. 2011) (quoting Hudson v. City of Chicago, 228 Ill.2d 462, 321 Ill.Dec. 306, 889 N.E.2d 210, 217 (2008)) (applying Illinois law).

Illinois employs a “transactional test” to decide whether complaints allege the same cause of action. Id. at 1079-80. Under this test, “separate claims will be considered the same cause of action for purposes of res judicata if they arise from a single group of operative facts, regardless of whether they assert different theories of relief.” Id. (quoting River Park, Inc. v. City of Highland Park, 184 Ill.2d 290, 234 Ill.Dec. 783, 703 N.E.2d 883, 893 (1998)). There need not be a “substantial overlap of evidence,” so long as the complaints arise from the same transaction or “series of connected transactions.” Id. at 1080. As for privity, Illinois courts conclude that it exists “between parties who adequately represent the same legal interests.” Id. (quoting People ex rel. Burris v. Progressive Land Developers, Inc., 151 Ill.2d 285, 176 Ill.Dec. 874, 602 N.E.2d 820, 825 (1992)).

We agree with the district court that all of these elements are present in this case. First, the parties do not dispute that there was a final judgment in Dr. Parungao’s suit against Dr. Piper. That action, the Piper suit, ended in a dismissal with prejudice for failure to state a claim. See Rose, 815 F.3d at 374 (noting that involuntary dismissal is “unquestionably” final judgment on the merits under Illinois law). The district court thus correctly concluded that this first element of res judica-ta was present.

With respect to the second element, identity of the causes of action between the Piper litigation and the current suit, we look to the filings in the earlier case. In doing so we are persuaded, as was the district court, that Dr. Piper’s letters on Galesburg letterhead to the other hospital entities were “just one act in the series of events that led to plaintiffs problems with and ultimate resignation from GCH,” the basis of the present suit. Our earlier decision, Chicago Title Land Trust Co., 664 F.3d 1075, provides ample authority. In that case, the plaintiffs had sued two defendants for fraud based on certain representations that those defendants had made. They then brought another suit alleging fraud and contract claims against different defendants, but citing the same representations. Id. at 1079-80. We found that the two eases involved the same series of events. Id.; see also Huon v. Johnson & Bell, Ltd., 757 F.3d 556, 558-59 (7th Cir. 2014) (holding that employment discrimination lawsuit against former employer and several of its employees was precluded under Illinois law by earlier defamation case against supervisor and coworker when the two actions were based on the same series of connected transactions).

In this case, the same pattern is repeated: In Piper, Dr. Parungao alleged defamation based on Dr. Piper’s representations to Weatherby and St. Mary’s about his performance. In the present case, Dr. Parungao challenges the peer-review process that led to those same representations that impaired his job prospects. While his theory of recovery is different here than in Piper, both suits arise out of statements made around the time he resigned that made it difficult for him to get another job. Under a “pragmatic” view, see Huon, 757 F.3d at 558 (applying Illinois law), Dr. Parungao’s federal complaint arises out of the same series of connected events alleged in Piper.

We now turn to the matter of privity. In ruling that Dr. Piper (in Piper) and the hospital defendants (in this ease) are in privity, the district court observed that Dr. Piper had maintained in the earlier suit that his legal interests were aligned with those of the hospital defendants. The court concluded that both Dr. Piper and the hospital defendants “were each defending the integrity of the peer review process at the hospital and that the employment information was disseminated in a proper manner.”

Although Dr. Parungao was careful not to mention Dr. Piper in his federal complaint, his own motion for a protective order before the district court reveals the basis for privity because the motion treats the hospital defendants as responsible for the letters that Dr. Piper composed on hospital letterhead. First, the motion acknowledges that Dr. Parungao bases his theory of liability in this case partly on those letters. In addition, the motion explains that the federal case alleges a conspiracy among the hospital defendants to harm Dr. Parungao’s reputation with other healthcare entities by sending letters with false information. These are the letters sent by Dr. Piper. Finally, Dr. Parungao even attached Dr. Piper’s letters to his motion, to emphasize that he sought to hold the hospital defendants vicariously liable for those letters. Dr. Parungao therefore has characterized the legal interests of the hospital defendants and Dr. Piper as aligned. See United States v. Egan Marine Corp., 843 F.3d 674, 678-79 (7th Cir. 2016) (explaining relationship between vicarious liability and privity for preclusion purposes). He has pleaded himself out of court on the issue of privity.

Dr. Parungao responds on appeal that the allegation in the federal complaint that the hospital “refused” to verify his good standing to other entities does not refer to Dr. Piper’s letters, but to some other, unexplained event. He also contends that it is possible that Dr. Piper’s letters to Weatherby and St. Mary’s were sent without authority from the hospital, and that the hospital defendants in this case might disclaim responsibility for Dr. Piper’s actions. Thus, he argues, the hospital defendants’ legal interests in this case are not necessarily aligned with those of Dr. Piper in his defamation suit. Dr. Parungao’s theory might have been plausible had he not, in his motion for a protective order, taken a position that contradicts the one he now advances for the first time on appeal. Because his theory is implausible in light of his own characterization of his case in his motion for a protective order, we may rely on that characterization to affirm the district court’s dismissal. See Watkins, 854 F.3d at 950 (declining to ignore plaintiffs previous filing establishing statute-of-limitations bar “[a]bsent a claim that there is a plausible, good-faith basis to challenge” its legitimacy).

Conclusion

The district court correctly found that Dr. Parungao’s complaint was barred by the doctrine of res judicata. We therefore affirm the judgment of the district court.

AFFIRMED

      . The district court had jurisdiction over this case under 28 U.S.C. § 1332. Our jurisdiction is premised on 28 U.S.C. § 1291.

      . R.91-7 at 3-4.

      . Parungao v. Cmty. Health Sys., Inc., Cmty. Health Sys. Prof'l Servs. Corp., Galesburg Hosp. Corp., Knox Clinic Corp., & Davis, No. 1:15-cv-04453, (N.D. Ill. filed May 20, 2015).

      . R.65 at 7.

      . Id.

      . Id.

      . See Carr v. Tillery, 591 F.3d 909, 913 (7th Cir. 2010); Muhammad v. Oliver, 547 F.3d 874, 878 (7th Cir. 2008).

      . R.143 at 10.

      . Id. at 11-12.