UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE: NAVY CHAPLAINCY : Civil Action No.: 07-0269 (RMU)
:
: Re Document No.: 95
MEMORANDUM OPINION
DENYING THE PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
I. INTRODUCTION
This matter comes before the court on the plaintiffs’ sixth motion for a preliminary
injunction pursuant to Federal Rule of Civil Procedure 65(a). The plaintiffs claim that the Navy
Chaplain Corps’ selection board process, in which Navy chaplains cast votes resulting in the
promotion of other chaplains, violates the Establishment Clause of the First Amendment to the
United States Constitution. More specifically, the plaintiffs allege that the Navy’s selection
board process results in denominational favoritism that advantages Catholic and liturgical
chaplains while disadvantaging non-liturgical chaplains. 1 The plaintiffs contend that this alleged
systematic bias has left non-liturgical chaplains underrepresented in the Navy. For the following
reasons, the court denies the plaintiffs’ motion for a preliminary injunction.
1
The term “non-liturgical” denotes Christian denominations or faith groups that do not have a
formal liturgy or order in their worship service. Adair, Mem Op. (Jan. 10, 2002) at 5.
1
II. FACTUAL & PROCEDURAL BACKGROUND
The court has recounted the rich factual history in this case on numerous occasions, and
forgoes yet another recitation of the facts. 2 See, e.g., Chaplaincy of Full Gospel Churches v.
England, 454 F.3d 290, 293-96 (D.C. Cir. 2006); Adair v. England, 183 F. Supp. 2d 31, 34-38
(D.D.C. 2002). For purposes of this memorandum opinion, the court notes that the plaintiffs
claim that the Department of the Navy and several of its officials (collectively, “the defendants”)
have discriminated against the plaintiffs on the basis of their religion, by establishing, promoting
and maintaining “illegal religious quotas” and religious preferences in their personnel decision-
making. Adair et al. v. England et al., Civ. No. 00-566 (“Adair”), 4th Am. Compl. ¶ 1;
Chaplaincy of Full Gospel Churches et al. v. England et al., Civ. No. 99-2945 (“CFGC”), 4th
Am. Compl. ¶ 1; Gibson v. Dep’t of Navy, Civ. No. 06-1696 (“Gibson”), Am. Compl. ¶ 1. More
specifically, the plaintiffs allege that the Navy is discriminating against members of “non-
liturgical” religions when, inter alia, making promotion decisions. Adair, Mem Op. (Jan. 10,
2002) at 5-9.
Three cases have been commenced, all raising “substantially similar constitutional
challenges to the Navy Chaplaincy program.” In re Navy Chaplaincy, Miscellaneous No. 07-
269, Mem. Order (June 18, 2007) at 3-4. The court ultimately determined that these cases,
Adair v. England, CFGC v. England and Gibson v. Department of the Navy, should be
consolidated under the caption In re Navy Chaplaincy. See id. at 4.
2
On June 18, 2007, the court consolidated these related matters and created a new miscellaneous
action for the three consolidated cases, captioned In re Navy Chaplaincy. See Mem. Order (June
18, 2007).
2
Although their constitutional challenges are nearly identical, the plaintiffs in each case
are varied. The Adair plaintiffs are 17 current and former non-liturgical chaplains in the Navy.
Adair, Mem. Op. (Jan. 10, 2002) at 2. In the CFGC case, the plaintiffs are composed of an
endorsing agency for non-liturgical military chaplains called the Chaplaincy of Full Gospel
Churches, and seven of its individual members. Id. Lastly, the Gibson plaintiffs consist of 41
individual plaintiffs and one organizational plaintiff, the Associated Gospel Churches, which is
“a fellowship of non-denominational, evangelical churches.” Gibson, Am. Compl., ¶ 3.
As is immediately pertinent here, the Navy Chaplain Corps’ selection process allows
Navy chaplains to cast votes for or against chaplains, potentially resulting in the promotion of
chaplains to higher ranks and larger pay. See generally Pls.’ Mot. for Prelim. Inj. According to
the plaintiffs, chaplain selection board members vote by pressing one of five buttons (ranging
from zero to one hundred in twenty-five degree increments) that are concealed in a sleeve. Id. ¶
3. If one chaplain on the selection board presses the button for “zero,” that single vote “zeroes
out” the other votes, resulting in the likely non-promotion of a candidate. Id. ¶ 4. Because the
voting buttons are concealed in a sleeve, chaplains’ votes are and remain secret. Id. ¶ 3.
As a result of this process, the plaintiffs now move for preliminary injunction, asking the
court to enjoin the Navy from “(1) the use of the Chief of Chaplains (the ‘Chief’) or his Deputy
as chaplain selection board president; (2) the use of secret votes thereon with no accountability;
and (3) placing chaplains on chaplain selection boards without effective guarantees that the
power to distribute government benefits will be used solely for secular, neutral and non-
ideological purposes.” Id. at 1. The plaintiffs have recently discovered that the government
intends to proceed imminently with the selection board process, highlighting the plaintiffs’ need
3
to swiftly prevent the government from beginning its promotion cycle. With the plaintiffs’
motion ripe for adjudication, the court turns to the applicable legal standards and the parties’
arguments.
III. ANALYSIS
A. Legal Standard for Injunctive Relief
This court may issue interim injunctive relief only when the movant demonstrates “[1]
that [they are] likely to succeed on the merits, [2] that [they are] likely to suffer irreparable harm
in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that
an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365,
374 (2008) (citing Munaf v. Geren, 128 S. Ct. 2207, 2218-19 (2008)). It is particularly important
for the movant to demonstrate a likelihood of success on the merits. Cf. Benten v. Kessler, 505
U.S. 1084, 1085 (1992) (per curiam). Indeed, absent a “substantial indication” of likely success
on the merits, “there would be no justification for the court’s intrusion into the ordinary
processes of administration and judicial review.” Am. Bankers Ass’n v. Nat’l Credit Union
Admin., 38 F. Supp. 2d 114, 140 (D.D.C. 1999) (internal quotation omitted).
The other critical factor in the injunctive relief analysis is irreparable injury. A movant
must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 129
S. Ct. at 375 (citing Los Angeles v. Lyons, 461 U.S. 95, 103 (1983)). Indeed, if a party fails to
make a sufficient showing of irreparable injury, the court may deny the motion for injunctive
relief without considering the other factors. CityFed Fin. Corp. v. Office of Thrift Supervision,
58 F.3d 738, 747 (D.C. Cir. 1995). Provided the plaintiff demonstrates a likelihood of success
4
on the merits and of irreparable injury, the court “must balance the competing claims of injury
and must consider the effect on each party of the granting or withholding of the requested relief.”
Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987). Finally, “courts of equity should pay
particular regard for the public consequences in employing the extraordinary remedy of
injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982).
As an extraordinary remedy, courts should grant such relief sparingly. Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997). The Supreme Court has observed “that a preliminary
injunction is an extraordinary and drastic remedy, one that should not be granted unless the
movant, by a clear showing, carries the burden of persuasion.” Id. Therefore, although the trial
court has the discretion to issue or deny a preliminary injunction, it is not a form of relief granted
lightly. In addition, any injunction that the court issues must be carefully circumscribed and
“tailored to remedy the harm shown.” Nat’l Treasury Employees Union v. Yeutter, 918 F.2d 968,
977 (D.C. Cir. 1990).
B. The Court Denies the Plaintiffs’ Motion for a Preliminary Injunction
1. The Court Has Jurisdiction to Entertain the Plaintiffs’ Claims
As a threshold matter, the defendants challenge the court’s jurisdiction to grant any
injunctive relief, and to entertain the plaintiffs’ claims insofar as they relate to the promotion
boards. According to the defendants, “[t]he court does not possess jurisdiction to enjoin
selection board proceedings” because Congress has statutorily limited the relief available by
enacting 10 U.S.C. § 628. The plaintiffs respond that § 628 does not specifically address
injunctions, and argue that “[h]ad [Congress] wanted to” deprive the court of jurisdiction in this
5
regard, it would have chosen more specific language. Pls.’ Reply at 10. Additionally, the
plaintiffs assert that the court has jurisdiction “to enjoin unconstitutional action by government
officials.” Id.
In 2001, Congress enacted legislation that limits a court’s jurisdiction over those actions
filed on or after December 28, 2001 which seek judicial review of a decision or recommendation
by certain military boards. See 10 U.S.C. § 628(h). More specifically, the relevant provisions
require that a person seeking judicial review of a decision made by a “promotion board” must
first exhaust his or her administrative remedies by resorting to a “special selection board.” 3 See
10 U.S.C. § 628(h). Section 628(h)(1) forbids any “court of the United States” from considering
“a claim based to any extent on the failure of a person to be selected for promotion by a
promotion board,” unless “the person has first been referred by the Secretary concerned to a
special selection board convened under [10 U.S.C. § 628] and acted upon by that board and the
report of the board has been approved by the President.” Id. § 628(h)(1) (emphasis added).
Furthermore, 10 U.S.C. § 628(h)(2) states:
No official or court of the United States may, with respect to a claim based to any
extent on the failure of a person to be selected for promotion by a promotion
board –
except as provided in subsection (g), grant any relief on the claim unless the
person has been selected for promotion by a special selection board convened
under this section to consider the person for recommendation for promotion and
the report of the board has been approved by the President.
3
A “special selection board” is a board convened to consider an officer’s eligibility for a
promotion, see 10 U.S.C. § 628, or to review the decision by a selection board not to recommend
an officer (or a former officer) for promotion, see 10 U.S.C. § 14502.
6
The plain language of these provisions indicates that a district court may review a
promotion board’s decisions only after a special selection board first considers a plaintiff’s
claim. 10 U.S.C. § 628(h); see also Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d 699,
704 (D.C. Cir. 2009) (observing that determining whether a statute’s exhaustion requirements are
jurisdictional “is a question of statutory interpretation”); Bd. of Governors of the Fed. Reserve
Sys. v. MCorp Fin. Inc., 502 U.S. 32, 44 (1991) (determining that the district court lacked
jurisdiction because the relevant statute had “provide[d the Court] with clear and convincing
evidence that Congress intended to deny the District Court jurisdiction” to review the case);
Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 101-103 (D.C. Cir. 1986)
(noting that “the inclusion of a detailed grievance procedure to resolve [] disputes . . . was the
strongest evidence of Congressional intent” that a party exhaust administrative remedies before
resorting to the federal courts”). Thus, a court lacks jurisdiction to review decisions by the
promotion boards and special selection boards if a plaintiff fails to exhaust his or her
administrative remedies under § 628. See Nat’l Coal. to Save Our Mall v. Norton, 269 F.3d
1092, 1095 (D.C. Cir. 2001) (determining that Congress’s “unequivocal intent to cut off judicial
review” for a specific type of claim meant that the court lacked jurisdiction over that claim);
Cotrich v. Nicholson, 2006 WL 3842112, at *2 (M.D. Fla. Dec. 19, 2006) (dismissing the case,
inter alia, for lack of jurisdiction due to the plaintiff’s failure to exhaust the administrative
procedures in § 1558). Additionally, the court may not grant “any relief” unless certain
procedural hurdles have been satisfied, i.e. the convening of a special selection board and
approval of that board’s report by the President. 10 U.S.C. § 628(i).
7
There is, however, one critical exception carved out by Congress. Section 628(i) states
that “nothing in this section” limits “the jurisdiction of any court of the United States under any
provision of law to determine the validity of any law, regulation, or policy relating to selection
boards.” 10 U.S.C. 628(i). Stated otherwise, under § 628(i), a court retains jurisdiction to
review the actions by a selection or promotion board so long as the claim seeks that the court
decide the “validity of any law, regulation, or policy relating to selection boards.” 10 U.S.C. §§
1558(g), 628(i).
In reviewing § 628(i) and § 628(h), the court is persuaded that Congress did not intend to
deprive this court of jurisdiction to review the alleged unconstitutional policies that guide a
promotion board. The plaintiffs specifically challenge the policies used by the Navy to
determine the composition and decision-making of the promotion boards. Thus, because the
plaintiffs’ claims challenge the validity of policies relating to promotion boards, the court
concludes that it maintains jurisdiction to review these claims pursuant to § 628(i). Moreover,
the court believes that § 628(h), when read in conjunction with § 628(i), does not limit the
court’s ability to provide injunctive relief when such relief is taken as part of determining the
validity of promotion boards’ policies. Motion Picture Ass’n of Am., Inc. v. Fed. Commc’ns
Comm’n, 309 F.3d 796, 801 (D.C. Cir. 2002) (noting that individual sections of a single statute
should be construed together).
2. The Plaintiffs Fail to Demonstrate Standing for the Injunctive Relief Requested
The plaintiffs assert that they have standing because they “include active duty and active
duty Reserve chaplains and two endorsing agencies with active duty Navy chaplains and
8
chaplain candidates who will be reviewed by the selection board procedures they challenge.”
Pls.’ Mot. at 2. The defendants argue that the plaintiffs do not meet their burden in
demonstrating standing because the plaintiffs cannot “show any injury-in-fact sufficient to
establish their standing to seek prospective relief enjoining any future [promotion] boards.”
Defs.’ Opp’n at 12. Specifically, the defendants contend that in requesting injunctive relief, the
plaintiffs ask the court to rely on “dubious presumptions.” Id.
To demonstrate standing, a plaintiff must have suffered (or in this case, will suffer) an
injury in fact, which is defined as a harm that is concrete and actual or imminent, not conjectural
or hypothetical. Byrd v. Envtl. Prot. Agency, 174 F.3d 239, 243 (D.C. Cir. 1999) (citing Steel
Co., 523 U.S. at 103). This Circuit has made clear that no standing exists if the plaintiff’s
allegations are “purely ‘speculative[, which is] the ultimate label for injuries too implausible to
support standing.’” Tozzi v. Dep’t of Health & Human Servs., 271 F.3d 301, 307 (D.C. Cir.
2001) (quoting Advanced Mgmt. Tech., Inc. v. Fed. Aviation Admin., 211 F.3d 633, 637 (D.C.
Cir. 2000)). Finally, if a plaintiff is an association, it may demonstrate standing as long as “its
members would have standing to sue in their own right, the interests at stake are germane to the
organization’s purpose, and neither the claim asserted nor the relief requested requires members’
participation in the lawsuit.” Consumer Fed’n of Am. v. Fed. Commc’ns Comm’n, 348 F.3d
1009, 1011 (D.C. Cir. 2003) (quoting Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333,
343 (1977)).
As the defendants observe, the plaintiffs essentially ask the court to assume that the
chaplains who will serve as promotion board members will “necessarily favor candidates
affiliated with his or her own denomination,” and that the future promotion boards’ decision will
9
be controlled by the voting habits of these allegedly biased chaplain members. As the court has
previously explained to the parties, when a Navy chaplain sits on a promotion board, they act
“first and foremost as Naval officers,” and are presumed to undertake their official duties in good
faith. See Adair, Mem. Op. (Jan. 10, 2002) at 48-49. Absent compelling evidence to the
contrary, the plaintiffs’ suggestions cannot support a finding that the plaintiffs have standing.
Winpisinger v. Watson, 628 F.2d 133, 139 (D.C. Cir. 1980) (noting that standing does not exist
where the court “would have to accept a number of very speculative inferences and assumptions
in any endeavor to connect [the] alleged injury with [the challenged conduct]”). As such, the
court determines that the plaintiffs lack standing to move for the injunctive relief requested in
their motion. Trans World Airlines, Inc. v. National Mediation Bd., 1981 U.S. Dist. LEXIS
13618, at *27 (D.D.C. 1981) (noting that the harm suggested by the plaintiff was “too
speculative and minimal to generate standing to move for injunctive relief”).
3. Substantial Likelihood of Success on the Merits
The plaintiffs argue that the evidence they have submitted makes a clear showing that the
defendants will promote personnel who belong to certain denominations over others. Pls.’ Mot.
at 17. According to the plaintiffs, their expert testimony suggests that the defendants are
engaging in practices which “result in clear denominational preferences in the award of
government benefits, advancing some denominations and inhibiting others to the detriment of
Plaintiffs.” Id. at 17. They further contend that “[t]he challenged practices are not narrowly
tailored to achieve a compelling purpose,” and therefore “fail all Establishment Clause tests and
result in unequal treatment for all chaplains.” Id.
10
The defendants respond that “[t]here is no empirical evidence that would suggest
denominational favoritism or discrimination correlated to the denominational affiliation of
chaplain board members.” Defs.’ Opp’n at 19-20. In support of this argument, the defendants
put forth testimony from their own expert which “found serious flaws in [the plaintiffs’ expert’s]
analyses.” Id. at 20. They further argue that establishment clause liability cannot “be predicated
solely on statistical evidence of disparate impact in favor of or against certain denominations.”
Id.
Because a preliminary injunction is an “extraordinary and drastic remedy,” it is axiomatic
that “the one seeking to invoke such stringent relief is obliged to establish a clear and compelling
legal right thereto based upon undisputed facts.” Belushi v. Woodward, 598 F. Supp. 36, 37
(D.D.C. 1984) (citing Rosemont Enterprises, Inc. v. Random House Inc., 366 F.2d 303, 311 (2d
Cir. 1966)). If the record presents a number of disputes regarding the inferences that must be
drawn from the facts in the record, the court cannot conclude that the plaintiff has demonstrated
a substantial likelihood of success on the merits. Suburban Assocs. Inc. v. U.S. Dep’t of Housing
& Urban Development, 2005 WL 3211563, at *10 (D.D.C. 2005); Secs. & Exchange Comm’n v.
Falstaff Brewing Corp., 1977 WL 1032, at *18 (D.D.C. 1977).
Here, the court concludes that the plaintiffs have not made the necessary showing that
they have a substantial likelihood of success on the merits. First, the plaintiffs have submitted no
evidence from which the court could assume that the future promotion boards will follow any
putative pattern of alleged past discrimination. See Defs.’ Opp’n at 23. Second, the plaintiffs’
constitutional theory is not one that has been endorsed by this Circuit or the Supreme Court. See
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540-43 (1993); Larson
11
v. Valente, 456 U.S. 228, 246 (1982); cf. Lemon v. Kurtzman, 403 U.S. 602 (1971). Accordingly,
the court concludes that the plaintiffs have not made a clear showing that they are likely to
succeed on the merits of their Establishment Clause claim. 4
4. Irreparable Harm
With regard to the irreparable harm prong, this Circuit has “set a high standard” in order
for a plaintiff to establish the existence of an irreparable injury. Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). The injury must be both certain and
great, and must be actual and not theoretical. Id. In addition, the injury must be beyond
remediation. Id. “Mere injuries, however substantial, in terms of money, time and energy
necessarily expended in the absence of a stay are not enough.” Id. (quoting Va. Petroleum
Jobbers Ass’n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958) (internal quotation marks omitted)).
The plaintiffs claim that absent the injunction, they will be denied benefits in the form of
promotions, continuation of active duty and key assignments. Pl.’s Mot. at 24. These losses,
however, constitute the very type of injury that the Circuit has indicated are insufficient to
establish irreparable harm. See England, 454 F.3d at 297. The loss of money, time and energy
from these benefits comprise the types of injuries that do not fall within the scope of relief of a
preliminary injunction.
4 In addition, the defendants maintain that one of the plaintiffs’ central arguments – that certain
duties have been impermissibly delegated to religious functionaries – has already been rejected
by this court. Defs.’ Opp’n at 24. The court need not reiterate its previous analysis; suffice it to
say that a religious individual need not be hermetically sealed from the decision-making process.
The presence of a religious employee on a board that evaluates another fellow officer’s fitness for
promotion does not, by itself, make a clear showing that a constitutional injury is imminent.
Adair, Mem. Op. (Jan. 10, 2002) at 47-50.
12
Furthermore, “[t]he possibility that adequate compensatory or other corrective relief will
be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of
irreparable harm.” Id. at 297-98 (quoting FPC, 259 F.2d at 925). The defendants here correctly
point out that even if the plaintiffs suffer injury in the form of denied benefits, any such injury
may be reparable through the Navy’s special selection board procedures to remedy past
promotion decisions that were influenced by discrimination. Def.’s Opp’n at 3. This Circuit has
noted that “former officers who prevail before the special selection board are entitled to revision
of their military record to correct an error or remove an injustice resulting from not being
selected for promotion by the initial board.” England, 454 F.3d at 298 (internal quotations and
citations omitted). Accordingly, the plaintiffs fail to establish that the harms alleged above are
irreparable.
The plaintiffs assert that the defendants’ challenged practices violate the Establishment
Clause by discriminating against the plaintiffs on the basis of their religious affiliation, and
therefore the defendants’ alleged violation is sufficient to satisfy the irreparable harm prong.
Pl.’s Mot. at 36. This Circuit has indeed held that the mere allegation that the government is
violating the Establishment Clause may suffice to satisfy this prong. England, 454 F.3d at 304.
The Circuit has further noted, however, that a “preliminary injunction will not issue unless the
moving party also shows, on the same facts, a substantial likelihood of success on the merits, that
the injunction would substantially injure other interested parties, and that the public interest
would be furthered by the injunction.” Id. The Circuit has indicated that “unsupported or
undeveloped allegations of government establishment . . . will not withstand scrutiny concerning
the movant’s likelihood of success on the merits, thereby defeating a request for a preliminary
13
injunction.” Id. “Likewise,” the Circuit has concluded, is the fate of preliminary injunction
motions that “inflict untoward detriment on persons not party to the case,” as it is for “motions
that do not further the public interest.” Id. Thus, while the Circuit has found that a violation of
the Establishment Clause is sufficient to constitute irreparable harm, its holding does not “in any
way lessen[] the burden for parties seeking preliminary injunctive relief [and instead] merely
focuses greater attention on the three other factors that indisputably enter into the preliminary
injunction determination.” Id. Accordingly, the court presumes that irreparable harm is present
and weighs more heavily the other factors discussed herein in deciding the plaintiffs’ preliminary
injunction motion.
4. Substantial Injury to Others
The plaintiffs argue that a preliminary injunction would not substantially injure any third
parties. Pls.’ Mot. at 37-38. In contrast, the defendants argue that the issuance of a preliminary
injunction would affect those potential chaplains who are currently entitled to a promotion.
Defs.’ Opp’n at 38. The defendants further note that scores of military personnel currently rely
on a fully staffed chaplaincy corps; these individuals would be harmed by a judicial order that
interrupts the flow of military personnel decisions. Id.
Whether or not third parties would be affected by a preliminary injunction is of central
importance when deciding whether to issue a preliminary injunction. National Wildlife
Federation v. Burford, 835 F.2d 305, 315 (D.C. Cir. 1987). A preliminary injunction should
only be issued if “[t]hird parties are not subject to its prohibitions.” Id. at 316. Here, it appears
that two groups of people would be directly or indirectly affected by the injunction the plaintiffs
14
seek. First, the injunction the plaintiffs seek would necessarily halt the promotion of those
individuals who are currently scheduled to be promoted. See Defs.’ Opp’n at 38. An injunction
would prevent those individuals from receiving all the benefits (monetary or otherwise) that
accompany the higher rank to which they are presumably entitled. Id.
Second, those military employees who rely upon a properly staffed chaplaincy corps
would be indirectly affected by enjoining promotion boards. Should the chaplaincy corps be
understaffed, these individuals would not be able to consistently rely on the religious services
provided by military chaplains. Defs.’ Opp’n at 38. The plaintiffs do not dispute this fact in
their briefing. See Pls.’ Reply at 24-25.
In sum, the defendants have shown that there is a substantial group of third parties who
would be affected – both directly and indirectly – by the judicial injunction sought by the
plaintiffs. Accordingly, the court’s analysis of the third prong of the preliminary injunction
framework militates against a finding that the plaintiffs have made “clear showing” of their
entitlement to injunctive relief. See Mazurek, 520 U.S. at 972.
5. Public Interest
The plaintiffs argue that a preliminary injunction would serve the public interest because
such an order would provisionally remedy any potential constitutional violations. Pls.’ Mot. at
38. The plaintiffs thus argue that the public would be served by an order requiring the military to
comply with the Constitution’s First Amendment guarantees. Id. In contrast, the defendants
argue that a preliminary injunction would harm the Navy by interrupting its personnel decisions
and causing its chaplaincy corps to be understaffed. Defs.’ Opp’n at 38. The defendants
15
maintain that a halt in the flow of chaplaincy personnel decisions would cause increased gaps in
the ability of chaplains to carry out their mission. Id. In addition, the defendants maintain that
the public at large would be harmed by an unwarranted judicial intrusion into military matters.
Id.
As the Supreme Court held in Goldman v. Weinberger, “[the judicial] review of military
regulations [that are] challenged on First Amendment grounds is far more deferential than
constitutional review of similar laws or regulations designed for civilian society.” 475 U.S. 503,
507 (1986). Judicial deference is therefore “at its apogee” when a court is asked to review the
constitutional propriety of military affairs. Rostker v. Goldberg, 453 U.S. 57, 70 (1981).
Similarly, case law counsels extreme caution before second-guessing decisions relating to the
military’s personnel decisions. Blevins v. Orr, 721 F.2d 1419, 1423 (D.C. Cir. 1983) (“It is
beyond the expertise, as well as the authority, of the judiciary to second-guess the military with
respect to overall manpower needs and promotion policies or to pass judgment on military policy
concerns, such as possible congressional antipathy to officer promotion practices.”). This is
particularly true where, as is the case here, it is unclear that any constitutional violation is
imminent. See Bors v. Allen, 607 F. Supp. 2d 204, 212 (D.D.C. 2009).
The court is acutely aware of the nature and gravity of the constitutional injuries alleged.
Nevertheless, the judiciary must defer to military considerations even when the challenges
involve First Amendment guarantees protected by the Constitution. Goldman, 475 U.S. at 597-
08. In addition, the public may suffer when the judiciary interferes with the efficient
administration of the military. Kosnik v. Peters, 31 F. Supp. 2d 151, 158 (D.D.C. 1998) (“It
would be damaging to shift the decision [as to the composition, training, equipping, and control
16
of a military force] from trained military professionals to a non-specialist judiciary.”).
Moreover, “interference in military personnel decisions causes great harm to the military because
of the potential cumulative effect of multiple injunctions.” Bors v. Allen, 607 F. Supp. 2d 204,
212 (D.D.C. 2009).
The defendants maintain that a judicially ordered halt in military personnel decisions
would hamper the military’s ability to carry out its mission. Id. In addition, the defendants
maintain that the public would be harmed by an unwarranted judicial intrusion into military
matters inasmuch as it would open the door to further intrusions. Id. The plaintiffs offer no
evidence with which to rebut the defendant’s arguments, opting instead to claim that these
matters are “specious” or unsubstantiated. See Pls.’ Reply at 24. In doing so, the plaintiffs
misconstrue their duty to satisfy the “extraordinary” burden that is borne by a party seeking a
judicial remedy prior to the commission of any constitutional injury. Mazurek, 520 U.S. at 972.
The plaintiffs argue that the public’s strong interest in the efficient administration of the military
only applies when the military strictly adheres to the Constitution. Pls.’ Reply at 25. This puts
the cart before the horse, however; the plaintiffs have not yet shown unequivocally that the
military will commit any constitutional error. See Part III.B.3, supra. Until the plaintiffs have
done so “by a clear showing,” Mazurek, 520 U.S. at 972, the court must defer to the military’s
personnel decisions, Goldberg, 475 U.S. at 507. Accordingly, the court concludes that the
plaintiffs have not made a clear showing that a preliminary injunction would serve the public
interest.
17
In sum, the court concludes that the plaintiffs have not satisfied their burden of showing
their entitlement to injunctive relief. The court notes that the evidence put forth by the plaintiffs
at best establishes a colorable claim to relief under the Establishment Clause. Absent a clearer
showing of the plaintiffs’ likelihood of success on the merits, there is no justification for the
court to deviate from the ordinary course of adjudication and judicial review. See Am. Bankers
Ass’n, 38 F. Supp. 2d at 140. Although the plaintiffs’ claims might demonstrate an irreparable
injury if ultimately vindicated, see England, 454 F.3d at 304, the plaintiffs have failed to
demonstrate that an injunction would not substantially injure third parties. In addition, the
plaintiffs have failed to show that the public interest would be furthered by the court’s intrusion
into military personnel decisions. Goldman, 475 U.S. at 507-08; Weinberger v. Romero-Barcelo,
456 U.S. at 312 (noting that courts must “pay particular regard for the public consequences in
employing the extraordinary remedy of injunction”). Accordingly, the court denies the
plaintiffs’ motion.
IV. CONCLUSION
For the foregoing reasons, the court denies the plaintiff’s motion for injunctive relief. An
Order consistent with this Memorandum Opinion is separately and contemporaneously issued
this 30th day of January, 2012.
RICARDO M. URBINA
United States District Judge
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