In Re: Navy Chaplaincy

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
)
IN RE: NAVY CHAPLAINCY ) Case No. 1:07-mc-269 (GK)
)

----------------------------~>
MEMORANDUM OPINION

Plaintiffs, 65 current and former nonliturgical Protestant

chaplains in the United States Navy, their endorsing agencies,

and a fellowship of non-denominational Christian evangelical

churches ("PlaintiffS'") , bring this consolidated action against

the Department of the Navy and several of its officials

("Defendants") . Plaintiffs allege that Defendants discriminated

against non-liturgical Protestant chaplains on the basis of

religion, maintained a culture of denominational favoritism in

the Navy, and infringed on their free exercise and free speech

rights.

This matter is before the Court on Plaintiffs' Motion for

Class Certification [Dkt. No. 147] . Upon consideration of the

Motion, Opposition [Dkt. No. 156] , Reply [Dkt. No. 160] , Sur-

Reply [Dkt. No. 170], Sur-Sur-Reply [Dkt. No. 178], and the

entire record herein, and for the reasons set forth below,

Plaintiffs' Motion shall be denied.
 1
I . BACKGROUND

A. The Navy Chaplain Corps

The Navy employs a corps of chaplains ("Chaplain Corps" or

"CHC") to meet the religious needs of its members. Chaplains

provide religious education, counseling, and support to sailors

and Marines and advise commanders on religious, moral, and

ethical issues. In re England, 3 75 F. 3d 1169, 1171 (D.C. Cir.

2004) (citations omitted). The role of a chaplain "within the

service is 'unique,' involving simultaneous service as clergy or

a 'professional representative[]' of a particular religious

denomination and as a commissioned naval officer." Id.

(citations omitted) To serve these dual roles, chaplains must

have a graduate level theology degree or equivalent, meet the

physical and educational requirements applicable to all

commissioned officers, and be endorsed by an endorsing agency as

qualified to represent a particular faith group. Id. at 1171-

72.

There are over 100 faith groups recognized by the

Department of Defense, which the Navy has grouped into four

"faith group categories" for purposes of organizing the Chaplain

Corps: Roman Catholic, Liturgical Protestant, Non-liturgical

1
The Court assumes familiarity with the extensive record of the
case, which includes more than twenty written decisions by this
Court and the Court of Appeals.
- 2 -
Protestant, and Special Worship. In re Navy Chaplaincy, 697

F.3d 1171, 1173 (D.C. Cir. 2012) ("In re Navy Chaplaincy I").

The Liturgical Protestant category consists of Protestant

denominations that trace their origins to the Protestant

Reformation, practice infant baptism, and follow a prescribed

liturgy; it includes Lutheran, Episcopal, Methodist, and

Presbyterian faiths. In re England, 375 F.3d at 1172;

Consolidated Complaint ("Consol. Compl.") ~ 6(b) [Dkt. No. 134].

The Non-liturgical Protestant category is composed of Protestant

denominations that baptize at the "age of reason" and do not

follow a formal liturgy; it includes Baptist, Evangelical,

Pentecostal, Bible Church, and Charismatic faiths. In re

England, 375 F.3d at 1172; Consol. Compl. ~ 6(c). The Special

Worship category encompasses all denominations not covered by

the other categories; it includes Jewish, Hindu, Buddhist,

Muslim, Jehovah's Witness, Christian Science, Mormon, and

Unitarian faiths. Chaplaincy of Full Gospel Churches v.

England, 454 F.3d 290, 295 n.3 (D.C. Cir. 2006); Consol. Compl.

~ 6 n.5.

In order to maintain the requisite number of chaplains for

all ranks (what the Navy refers to as "authorized end

strength"), the Chaplain Corps creates an annual "accessions

plan" setting forth the number of officers it can bring on

- 3 -
active duty that fiscal year. Declaration of Captain Gene P.

Theriot, CHC, USN ("Theriot Decl . " ) ~ 2 [Dkt . No. 2 9- 6] ; see

also SECNAVINST 1120.4A(5). The term "accession" refers to the

process of bringing a qualified individual into the Chaplain

Corps as a commissioned officer. Theriot Decl. ~ 2. Chaplain

Corps accessions are drawn primarily from the civilian

population, but also from the reserve community, Chaplain

Candidate Program, and inter-service transfers. Id.; see also

Consol. Compl. ~ 44(c).

Chaplain applications are reviewed by a "Chaplain

Appointment Recall and Eligibility Advisory Group" or what is

commonly referred to as a "CARE" board. Theriot Decl. ~ 3. The

CARE board reviews chaplain applications and recommends certain

applicants to the Chief of Chaplains, "giving particular

consideration to: the existence of an ecclesiastical

endorsement, academic performance, graduate theological

education, professional ministry experience, professional

reputation and deportment, interview results and letters of

personal or professional recommendation." Id. After

considering the CARE board's recommendations, the Chief of

Chaplains forwards his or her recommendations for accession to

the Commander of the Navy Recruiting Command or the Chief of

Naval Personnel for final approval/disapproval. Id.

- 4 -
 After accession, chaplains are subject to the same

personnel system as other naval officers and, like other

officers, are required to be promoted in rank at regular

intervals. In re England, 375 F.3d at 1172 (citing 10 U.S.C. §

611 (a)) . If a chaplain is considered but not selected for

promotion to the next higher rank, he or she is said to have

"failed of selection." Chaplaincy of Full Gospel Churches, 454

F.3d at 293. Two or more failures of selection subject the

chaplain to the risk of involuntary separation, known as

"selective early retirement." See 10 U.S.C. § 632 (a)- (b). The

Navy may, however, elect to continue a chaplain on active duty

despite two or more failures of selection if, in its judgment,

the needs of the Navy so require. See id. § 632(c) (2).

Each of these decisions regarding a chaplain's career

promotion, selective early retirement, and continuation on

active duty - is made by a selection board composed of officers

superior in rank to the person under consideration. 2 In re

England, 375 F.3d at 1172. The selection board process is

governed by statute and regulations prescribed by the Secretary

of Defense. See 10 U.S.C. §§ 611, 612. Under the current

2
Selection board rules and processes differ according to the
rank and type of personnel decision under consideration. See
generally 10 U.S.C. §§ 611, 612. Unless otherwise stated, the
Court uses the term "selection board" to refer generically to
all boards convened for the purpose of considering a change to a
naval officer's employment status.
- 5 -
regulations, chaplain selection boards are composed of seven

members, two of whom are chaplains "nominated without regard to

religious affiliation." In re Navy Chaplaincy, 738 F.3d 425,

427 (D.C. Cir. 2013) ("In re Navy Chaplaincy I I I") (citing

SECNAVINST 1401.3A, Encl. (1), ~ l.c. (1) (f)) "Either the Chief

of Chaplains or one of his two deputies serves as selection

board president." Id.

B. Plaintiffs' Claims

Plaintiffs are 65 current and former Non-liturgical

Protestant chaplains who have collectively served in more than

fifty different naval command stations worldwide during the past

four decades, 3 their endorsing agencies, and a fellowship of non-

denominational Christian evangelical churches. They allege that

"the Navy has violated their constitutional and statutory rights

by establishing a pervasive culture of hostility, animosity and

prejudice towards themselves and their class" manifested by: (1)

"a pattern of religious preferences favoring Liturgical

Christian chaplains over Non-liturgical Christian chaplains";

( 2) "procedures that allow and encourage denominational

preferences in the award and denial of government benefits"; and

3
Among other locations, Plaintiffs served in Florida, Italy,
Japan, Guam, South Carolina, North Carolina, Wisconsin,
Virginia, California, Iraq, Lebanon, Georgia, Texas, Maryland,
Washington, the District of Columbia, Texas, New York, Saudi
Arabia, the Aleutian Islands, and Somalia. See generally
Consol. Compl., Addendum A [Dkt. No. 134].
- 6 -
 ( 3) "hostility toward Non-liturgical religious speech and

worship practices." Mot. at 5.

They contend that a statistical examination by their

expert, Dr. Harald R. Leuba, Ph.D., demonstrates that "[e]very

dimension of personnel management which can be illuminated with

data shows that Non-liturgical chaplains are disadvantaged by

the CHC' [s] policies and practices of religious preference [.]"

Consol. Compl. ~ 42.

Plaintiffs' Consolidated Complaint and accompanying

"Addendum" collectively exceed 200 pages and contain sixteen

separate counts, many of which are not conceptually or legally

distinct. For purposes of this Motion, it is sufficient to

divide their claims into three overarching categories, as

follows. 4

First, they attack a number of facially neutral personnel

practices, both current and historical, which they believe have

allowed religious bias to infect selection board outcomes and

led to discriminatory personnel decisions. Specifically, they

challenge: (1) the small size of selection boards; (2) the

placement of two chaplains on each board, one of whom is either

4
The Court limits its discussion to the factual and legal
contentions at issue in this Motion and, in so doing, analyzes
Plaintiffs' claims according to the type of alleged violation,
rather than the particular numerical scheme in the Consolidated
Complaint.
- 7 -
the Chief of Chaplains or one of his or her deputies; and ( 3)

the use of "secret voting" procedures in which board members

anonymously indicate their degree of confidence in a candidate,

a process Plaintiffs contend "enables each board's chaplains to

ensure that a particular candidate will not be promoted, thus

increasing the odds for their preferred (and discriminatory)

results." In re Navy Chaplaincy III, 738 F.3d at 428; see also

Consol. Compl. ~ 95(c).

Plaintiffs also take issue with the fact that until 2002,

"each selection candidate's three-digit 'faith group identifier'

code was prominently displayed throughout the selection

board process[,]" which they claim had no purpose other than "to

identify a candidate's faith group to the board" for purposes of

permitting the chaplain board members "to exercise their

individual or faith group prejudice . , particularly against

Non-liturgical chaplains." Consol. Compl. ~~ 86-87.

Second, Plaintiffs assert that, until 2001, the Navy used

religious quotas or "goals" for apportioning chaplain

opportunities among the faith group categories. Consol. Compl.

~~ 33-35. In particular, they claim that between 1986 and 2001,

the Navy had a so-called "Thirds Policy" under which it reserved

thirty-five percent of chaplain accessions to Liturgical

Protestants, thirty-five percent to "Non-liturgical faith

- 8 -
groups," and thirty percent to "Others," including Catholics.

Consol. Compl. ~~ 33, 35, 43. They also claim that from 1977

until 2002, Defendants maintained a policy of reserving a set

number of selection board seats for Roman Catholic chaplains

(the so-called "2 RC" and "1 RC" policies), allegedly for the

purpose of "stacking" selection board proceedings in favor of

Roman Catholic and Liturgical Protestant chaplains despite their

declining numbers in the broader population. Consol . Compl .

~~ 57 (e)- (g)

Third, in the "Addendum" to their Consolidated Complaint,

the individual chaplain Plaintiffs advance a laundry list of

fact-specific claims asserting equal protection and free

exercise violations they purportedly suffered while serving as

chaplains in the Navy. These consist of highly individualized

allegations that they were, at different points in time and in

different command centers: (1) retaliated against, criticized,

transferred, or removed from their posts by superior officers

based on their faith or the content of their religious

teachings; (2) treated differently from Liturgical chaplains

with respect to disciplinary issues, promotion, retention,

selective early retirement, recall to active duty, fitness

reports, and/or employment benefits; (3) made to officiate at

Liturgical services; and (4) subjected to general policies that,

- 9 -
 while not facially discriminatory, disfavored certain aspects of

their worship traditions. See, e.g. , Consol. Compl. ~~ 17 8-

184 (kk) & Addendum A. 5 They claim that each of the practices,

policies, and procedures they challenge enabled or permitted

other chaplains to discriminate against them, thereby violating

their rights under the First and Fifth Amendments and the

Religious Freedom and Restoration Act ( "RFRA") , 42 U.S. C. §

2000bb, et seq. See generally Consol. Compl. ~~ 29-131, 141-

164.

Plaintiffs seek sweeping injunctive and declaratory relief

that would place this Court in an essentially perpetual

oversight role with respect to the Navy's personnel practices.

Such relief includes both individually-tailored remedies to

repair purported damage to each and every chaplain's career, as

well as what Plaintiffs refer to as "fundamental reform,"

requiring the Navy to adjust its hiring and retention policies

to match religious representation in the greater population.

Mot. at 38. Their requested remedies include, but are not

limited to:

5
For example, Plaintiffs allege that some "senior chaplains have
insisted on rotating chaplains through . . services instead of
assigning a chaplain as a 'pastor' for a congregation,
reflecting the liturgical viewpoint that the liturgy satisfies
the congregation's worship need, rather than the Non-liturgical
view that good biblical preaching, music, and praise and worship
comprise the worship experience[.]" Consol. Compl. ~ 150(b).
- 10 -
 • A judicial declaration voiding "all personnel actions" made
regarding Navy chaplains of any denomination since 1977.
Consol. Compl. at 119.

• Reinstatement of separated Non-liturgical chaplains to
active duty "until such time as they have been reviewed by
legally constituted boards." Id. at 111.

• An order requiring the Navy to "correct the records and
remove the prejudice from the affected Non-liturgical
chaplain's official career file, take other necessary
actions to make plaintiffs whole, and take corrective
action to preclude further incidents of prejudice." Id. at
118.

• "Special compensation" for the named Plaintiffs "for the
expense, stress and hostility they have endured to bring
this action[.]" Id. at 120.

• An order invalidating all of the challenged personnel
policies and requiring the Navy to "[d]evelop new policies,
guidelines, and regulations that [,]" among other things,
"officially record the religious preference of all Navy
personnel"; "[e]nsure that [Non-liturgical] services
receive priority or become the main Christian service when
Non-liturgicals constitute a majority"; and adjust the
CHC's rank structure to reflect religious preference. Id.
at 117-19 (emphasis in original) . 6

• A court-ordered "system of checks and balances" monitoring
remedial efforts to ensure that consideration of religious

6
As other courts have noted, there is an inconsistency between
Plaintiffs' claim that the Navy is prohibited from considering
religion in its personnel decisions and their simultaneous
assertion that the Navy is constitutionally required to consider
religion in its personnel decisions by developing a system of
proportional representation. See Sturm v. U.S. Navy, No. 99-CV-
2272, slip op. at 7 (S.D. Cal. June 18, 2002) ("Sturm Mem. Op.
of June 18, 2002") (noting inconsistency between argument that
"the First Amendment does not permit the Government to
discriminate between denominations" and simultaneous demand
"that Non-liturgical Protestants be picked over Liturgical
Protestants and Roman Catholics because they purportedly satisfy
a higher percentage of service members' religious needs").
- 11 -
 considerations is "effectively eliminated" from promotions
and career processes, and that future "complaints of
religious discrimination are promptly investigated and
addressed." Id. at 117-18.

C. Defendants' Response to Plaintiffs' Claims

Defendants deny Plaintiffs' allegations in their entirety.

First, they deny that any of the alleged "quota" systems

(the so-called "Thirds," "1 RC" and "2 RC" Policies) ever

existed. They point out that the Navy's rules specifically

require promotion board members to "be nominated without regard

to religious affiliation" and prohibit "[e] xclusion from board

membership by reason of gender, race, ethnic origin, or

religious affiliation [.]" Defs.' Mot. for P. Summ. J. at 5

[Dkt. No. 46-1] (citations omitted) (citing SECNAVINST 1401.3 ~

4(a) & Encl. 1 ~ 1(c) (1) (e)). They point out further that the

Chaplain Corps' personnel policies and Guiding Principles, on

which chaplains receive yearly training, expressly prohibit

religious discrimination of any type and require that personnel

decisions be based on merit alone. Opp'n at 24 (citing

SECNAVINST 5350.16A 7) . In accordance with these

requirements, Defendants maintain that "[i] ndividual accession

decisions are made on the basis of qualifications alone" and

that the Navy has consistently endeavored to "access[] the best-

qualified candidates irrespective of faith group." Defs.' Mot.

for P. Summ. J. at 23, 24 (citations omitted).
- 12 -
 Second, Defendants claim that, consistent with its policy

of nondiscrimination, the Navy has enacted numerous safeguards

to prevent discrimination from infecting selection proceedings

and to "protect the rights of all to worship or not worship as

they choose." Opp'n at 24 (citing SECNAVINST 5351.1, encl. 4).

These safeguards include requiring selection board members to

"take an oath to perform [their] duties without prejudice or

partiality"; instructing them to "ensure that officers are not

disadvantaged because of religion"; and imposing on them a

duty to report any belief that board results have been tainted

by improper influence or bias. Opp' n at 2 4 & Ex. 6 (Jan. 2 3 ,

2013, Decl. of Commander Jeffrey J. Klinger, USN) ("Klinger

Decl.") •• 26, 27, 29, 59 [Dkt. No. 156-6]; see also Defs'. Mot.

for P. Summ. J. at 4 (citing 10 U.S.C. § 613).

Third, Defendants challenge the statistical findings of

Plaintiffs' expert, Dr. Leuba, in their entirety. See, e.g.,

Opp ' n at 2 0- 23 , 26 . 7 They assert that from 1988 until the

present, "Non-liturgicals have steadily grown to constitute the

largest of the four Faith Group Categories recognized by the

7
Defendants retained their own expert, Dr. Bernard R. Siskin,
Ph.D., whose analysis Plaintiffs have moved to strike under Fed.
R. Evid. 702 and 403. See Opp'n, Ex. 2 (Statistical Analysis of
Promotions and Early Retirement Selections in the United States
Navy Chaplain Corps, Supplemental Report) [Dkt. No. 156-2];
Pls.' Renewed Mot. to Strike [Dkt. No. 169]. The Court does not
rely on Dr. Siskin's report to resolve the pending Motion.
- 13 -
Navy for Chaplain Corps personnel management purposes, recently

becoming the outright majority of all active duty Chaplains,

both overall and at every rank save Rear Admiral." Opp'n at 4.

They claim that "since FY 2002, Non-liturgicals have

accessed in greater numbers than any other faith group

category [,]" and now constitute 59. 9 percent of all Chaplain

Corps accessions, "compared to Liturgical Protestants at 2 6. 7

percent, Roman Catholics at 7. 2 percent, and Special Worship

candidates at 6.3 percent of all accessions, respectively."

Id.; see also Decl. of Veronica Berto dated May 20, 2011 ("May

20, 2011, Berto Decl."), Exhibit C [Dkt. No. 156-8]. Moreover,

they claim that this representation of Non-liturgical chaplains

exceeds "by a significant margin" the overall percentage of Navy

personnel that self-identify as belonging to a faith group

category within the Non-liturgical category." Opp' n · at 2 6- 2 7

(citing May 20, 2011, Berto Decl., Exs. A & B) . 8

Fourth and finally, and based on the foregoing, Defendants

argue that, "[a] t its heart, this consolidated litigation is

really a collection of individual employment disputes" . in which

8
Specifically, Defendants' analysis found that "Navy personnel
who self-identified as belonging to a faith group that would
fall within the Non-liturgical Faith Group Category constituted
only 13 percent of the Navy as of March 31, 2011[,]" whereas
"Non-liturgicals constituted 53 percent of the Chaplain Corps as
of FY 2010." Opp'n at 26-27 (citing May 20, 2011, Berto Decl.,
Exs. A & B).
- 14 -
the proposed class members have only "two principal things in

common: (1) they belong to Christian faith groups categorized by

the Navy as Non-liturgical for personnel management purposes;

and (2) at some point, each sustained one or more adverse

personnel decisions, such as failure to promote to the next rank

or selection for early retirement." Defs.' P. Mot. to Dismiss

at 1 [Dkt. No. 2 9] 0 "Beyond that," Defendants argue,

Plaintiffs' "individual cases diverge in numerous ways,

depending on when and where they served, what their duties were,

to whom they reported and by whom they were supervised, and

multiple other factors." Id. at 1-2.

D. Procedural Background

This consolidated case is composed of three cases filed by

the same counsel: Chaplaincy of Full Gospel Churches v. England,

Civ. No. 99-2945 ("CFGC"); Adair v. England, Civ. No. 00-566

("Adair"); and Gibson v. Dep't of Navy, Civ. No. 06-1696

("Gibson"). CFGC and Adair were filed in this Court on November

5, 1999, and March 17, 2000, respectively, and were consolidated

for pretrial purposes on September 2 6, 2 0 0 0. [Adair Dkt. No.

21] 0 Gibson was filed in the Northern District of Florida on

April 28, 2006, and was subsequently transferred to this

District pursuant to 28 U.S.C. § 1404. See Mem. Order of August

17, 2006, at 1 [Gibson Dkt. No. 1]. On June 18, 2007, the Court

- 15 -
consolidated all three actions, concluding that they raise

"substantially similar constitutional challenges to the Navy

Chaplaincy program." Mem. Order of June 18, 2007, at 4 [Dkt.

No. 11].

On March 26, 2002, the Adair Plaintiffs filed their first

Motion for Class Certification, which the Court granted on

August 19, 2002 [Dkt. No. 69]. See Adair v. England, 209 F.R.D.

5 (D.D.C. 2002). Four years later, the Adair Plaintiffs moved

to vacate the 2002 Class Certification Order, claiming that, as

a result of recent "job changes" and other personal

circumstances, "they [we]re no longer willing or able to

represent or to assume the burdens inherent in representing the

class." Pls.' Mot. to Vacate the Aug. 19, 2002, Order Granting

Pls.' Mot. to Certify a Class, at 2 [Adair Dkt. No. 156] . On

May 30, 2006, the Court granted this Motion.

The parties engaged in more than five years of active

discovery between 2002 and 2009, interspersed with collateral

litigation and three interlocutory appeals to our Court of

Appeals. In 2012, Judge Ricardo Urbina, who had been assigned

to this case, retired and it was reassigned to this Court. At

the Court's request, on October 3, 2012, Plaintiffs filed a

Consolidated Complaint [Dkt. No. 134] comprised of all of the

remaining claims at issue.

- 16 -
 On December 4, 2 012, Plaintiffs filed the instant renewed

Motion for Class Certification ("Mot.") [Dkt. No. 147]. On

January 23, 2013, Defendants filed their Opposition ("Opp'n")

[Dkt. No. 156] . On February 25, 2013, Plaintiffs filed their

Reply ("Reply") [Dkt. No. 160]. With permission of the Court,

on March 27, 2013, Defendants filed a Sur-Reply ("Sur-Reply")

[Dkt. No. 170], and on April 15, 2013, Plaintiffs also filed a

Sur-Reply ("Sur-Sur-Reply") [Dkt. No. 178].

II. Subject Matter Jurisdiction Over Plaintiffs' Challenge to
the "Thirds Policy"

Before reaching the class certification issue, the Court

must address a threshold issue left undecided in one of its

prior decisions: whether it has subject matter jurisdiction to

consider Plaintiffs' challenge to the alleged "Thirds Policy." 9

The parties dispute whether the Thirds Policy ever existed,

but it is undisputed that it has not existed since 2001. See

Consol. Compl. ~ 35(a)-(b); Pls.' Mot. for P. Summ. J. at 4-5

(policy was "abandoned" in 2001) [Dkt. No. 55] Our Court of

9
The Court has an affirmative duty to ensure that it is acting
within its jurisdictional limits and may raise the issue sua
sponte at any time. See Fed. R. Civ. P. 12 (h) (3) ("If the
[district] court determines at any time that it lacks subject-
matter jurisdiction, the court must dismiss the action."); Evans
v. Suter, No. 09-5242, 2010 WL 1632902, at *1 (D.C. Cir. Apr. 2,
2 010) ("[A] district court may dismiss sua sponte
when, as here, it is evident that the court lacks subject-matter
jurisdiction[.]").

- 17 -
Appeals has therefore recognized that, "because the Navy already

eliminated the Thirds Policy," and there is no evidence "the

Navy will reinstitute it, any injunction or order declaring it

illegal would accomplish nothing - amounting to exactly the type

of advisory opinion Article III prohibits." Larsen v. U.S.

Navy, 525 F.3d 1, 4 (D.C. Cir. 2008) ("Larsen I").

In 2008, Defendants moved to dismiss the Thirds Policy

claim, arguing that, under Larsen I, any prospective challenge

to the Policy is moot. See Defs.' P. Mot. to Dismiss at 21-22

[Dkt . No. 2 9 -1] . They also argued that Plaintiffs lack standing

to challenge the Policy because "each Plaintiff successfully

accessed into the Chaplain Corps" and therefore cannot show

"that the Navy's past or present accession policies caused them

any injury in fact, a requirement of standing." In re Navy

Chaplaincy, 850 F. Supp. 2d 86, 109 (D. D.C. 2012) ("In re Navy

Chaplaincy II") (citation and quotation marks omitted); see also

Defs.' P. Mot. to Dismiss at 19-22.

In response, Plaintiffs did not argue that they suffered a

direct injury as a result of the alleged Thirds Policy

(presumably because it is undisputed that they all successfully

accessed into the Chaplain Corps) , but asserted instead that the

Policy resulted in an underrepresentation of Non-liturgical

Protestants in the Chaplain Corps that limited their ability to

- 18 -
meet their communities' religious needs and increased their

workload. See Pls.' Opp'n to Defs.' P. Mot. to Dismiss at 29-30

[Dkt . No. 3 3] .

In 2012, the Court addressed these arguments. With respect

to standing, it noted that Plaintiffs alleged that the Thirds

Policy had limited their ability to meet their communities'

religious needs and increased their workload. The Court

concluded that this "pleaded factual content, accepted as true,

allow [s] the court to draw the reasonable inference that the

plaintiff [s] suffered an injury in fact to support standing."

In re Navy Chaplaincy II, 850 F. Supp. 2d at 110. Given the

procedural pOsture of the case, however, the Court did not reach

whether Plaintiffs satisfied the other elements of standing.

Id. at 109-110 (quoting Sierra Club v. EPA, 292 F.3d 895, 898-99

(D.C. Cir. 2002)).

With respect to mootness, the Court noted that the Court of

Appeals panel in Larsen I had recently recalled its mandate due

to the discovery of new evidence allegedly suggesting the Navy

had reinstituted the Thirds Policy. Consequently, the Court

denied Defendants' mootness challenge "without prejudice" to

future consideration "after the court has ruled on the remanded

Larsen matter." Id. at 110 n.11.

- 19 -
 The district court in Larsen I has now ruled on the

mootness issue. It determined that the challenge to the Thirds

Policy remained moot because the newly presented evidence did

not "indicate that the Thirds Policy will likely be reenacted."

Larsen v. U.S. Navy, 887 F. Supp. 2d 247, 258 (D.D.C. 2012)

("Larsen II"). In this case, too, there is no evidence the Navy

will reinstate the alleged Thirds Policy. 1 ° Consequently, as in

Larsen I, any forward looking or declaratory relief that this

Court might grant with respect to the alleged Thirds Policy

would "accomplish nothing - amounting to exactly the type of

advisory opinion Article III prohibits." Larsen I, 525 F.3d at

4. Accordingly, Plaintiffs' claim for declaratory and forward-

looking injunctive relief related to the Thirds Policy is moot.

In light of this conclusion, Plaintiffs also cannot

demonstrate standing to challenge the Policy. They have

10
The evidence of the Thirds Policy consists largely of a single
memorandum from Captain D. K. Muchow to the Chief of Chaplains
regarding the annual accessions plan for FY 1987 (the "Muchow
Memorandum") [Dkt. No. 55-22]. The Muchow Memorandum states
that "[f]aith group mix best meets the needs of the naval
service when 35 percent of the Chaplain Corps inventory is
liturgical, 35 percent non-liturgical and 30 percent other
(Roman Catholic, Jewish, Orthodox)." Id. at 1. However, it
makes no reference whatsoever to the existence of any formal
Thirds Policy and there is no indication that Muchow's
assessment of optimal "faith group mix" reflected the views of
the CHC as a whole or pertained to accession goals for any year
other than FY 1987. At his deposition, Muchow characterized the
Memorandum as merely a "snapshot of where we were" in FY 1987.
See Dep. Tr. of Donald K. Muchow at 44:18 [Dkt. No. 47-15].
- 20 -
previously argued that they suffered an Article III injury as a

result of the Thirds Policy because it limited their ability to

meet the religious needs of Non-liturgical service members and

increased their workload. Even assuming, however, that

Plaintiffs could prove they were required to work harder than

other chaplains as a result of the Policy (as to which there is

negligible evidence), and that such an injury is sufficiently

concrete and particularized to satisfy Article III, Plaintiffs

would still be required to show that it is "likely, as opposed

to merely speculative, that the injury will be redressed by a

favorable decision." Nat'l Envtl. Dev. Ass'n's Clean Air

Project v. EPA, No. 13-1035, 2014 WL 2219065, at *3 (D.C. Cir.

May 30, 2014) (quoting Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992)) (quotation marks and ellipses omitted).

There is no indication that Plaintiffs' increased workload

in the past has had any lasting adverse effect. As the District

Court for the Southern District of California held in a related

case, "' [p] ast exposure to illegal conduct does not in itself

show a present case or controversy . . if unaccompanied by any

continuing, present adverse effects. '" Wilkins v. United

States, No. 99-CV-1579-IEG (LSP), slip op. at 23 (S.D. Cal. June

29, 2005) ("Wilkins Mem. Op. of June 29, 2005") (quoting Renne

- 21 -
v. Geary, 501 U.S. 312, 320-21 (1991)) (emphasis added)); aff'd,

232 F. App'x 710 (9th Cir. 2007).

Furthermore, there is nothing in the record to suggest that

the limited declaratory and injunctive remedies available in

this Court could provide effective relief for any injuries

Plaintiffs sustained in the past as a result of the alleged

Thirds Policy. " [W] hile plaintiffs may seek declaratory and

injunctive relief, they may not seek damages because the United

States has not waived sovereign immunity for monetary relief for

unconstitutional acts taken by government employees acting in

their official capacities." Leonard v. U.S. Dep't of Def., No.

13-1571, 2014 WL 1689606, at *3 n.2 (D.D.C. Apr. 30, 2014)

(citing Clark v. Library of Cong., 750 F.2d 89, 102-03 (D.C.

Cir. 1984)). "The government also has not waived sovereign

immunity for monetary damages resulting from violations of

RFRA." Id. (citing Webman v. Fed. Bureau of Prisons, 441 F.3d

1022, 1026 (D.C. Cir. 2006) ("RFRA does not waive the federal

government's sovereign immunity for damages.")).

Consequently, if Plaintiffs prevailed, they would be

limited to non-monetary relief for any constitutional violations

resulting from the Navy's prior use of the alleged Thirds

Policy. They have not identified any non-monetary relief that

could remedy the fact that they were required to "expend more

- 22 -
effort" than their Liturgical colleagues a decade or more ago. 11

Nor have they identified any other injury related to the alleged

Thirds Policy that the Court could redress through non-monetary

relief. 12

In sum, because Plaintiffs' request for declaratory and

forward-looking relief is moot and the Court is unable to issue

any relief for the only injury they claim to have suffered in

11
Plaintiffs do allege that Non-liturgical chaplains are still
underrepresented as a result of the alleged "Thirds Policy" and
thus suggest that the Court can provide relief for the fact that
they continue to shoulder a heavier workload. See Pls.' Opp'n
to Defs.' P. Mot. to Dismiss at 33. But this contention finds
no support in the record. As already noted, as of FY 2010, Non-
liturgical Protestants made up more than 50 percent of the
Chaplain Corps, whereas in 2011, personnel who self-identified
as belonging to a Non-liturgical faith group constituted only 13
percent of the Navy. See May 20, 2011, Berto Decl., Exs. A & B.
12
Plaintiffs allege that the Thirds Policy "applied" to
recruiting and accessions. See Consol. Compl. ~~ 35(b), 43; see
also Decl. of Commander Timothy J. Demy, CHC, USN ("Demy Decl.")
-r4 [Dkt. No. 178-4]. To the extent they suggest it also
applied to other personnel decisions, see Consol. Compl. ~ 43,
they have presented no evidence that it did, whereas Defendants
have submitted an affidavit clearly stating that "[t]here [we]re
no express or implied quotas for promotion based on faith"
during the relevant time period. Affidavit of R.W. Duke at 4,
Wilkins v. Lehman, No. 85-3031 (S.D. Cal. Jan. 16, 1986) ("Duke
Aff. ") [Dkt. No. 172 -3] . Similarly, a promotion board precept
dated June 23, 1987, states that boards must select officers who
"giving due consideration to the needs of the Navy for officers
with particular skills, considers best qualified for promotion,"
a standard to "be applied uniformly" to all candidates. FY 1988
Promotion Board Precept at 2 [Dkt. No. 160-8]. There is simply
no evidence that the alleged Thirds Policy, or any other
religious quotas or goals, impacted promotion, retention, or
selective early retirement decisions.

- 23 -
the past, Plaintiffs have not established the existence of a

"live controversy" pertaining to the Thirds Policy. Therefore,

the Court is without jurisdiction to consider it. See Sturm

Mem. Op. of June 18, 2002, at 6 ("While Plaintiff may take issue

with Defendant's former accession practices, ' [w] e are not in

the business of pronouncing that past actions which have no

demonstrable continuing effect were right or wrong.'") (quoting

Spencer v. Kemna, 523 U.S. 1, 18 (1998)), aff'd, 76 F. App'x 833

(9th Cir. 2003)).

For these reasons, Plaintiffs' claim related to the Thirds

Policy shall be dismissed for lack of subject matter

jurisdiction.

III. CLASS CERTIFICATION

The Court will now consider Plaintiffs' Motion for Class

Certification. Plaintiffs seek to certify a class of up to

2, 500 "present and former Non-liturgical Navy chaplains, active

duty and Reserve, who were in the Navy or have served in the

Navy" between 1976 and the present. Mot. at 3, 7. The proposed

class includes, but is not limited to: (1) chaplains whose

"careers have been injured, terminated or otherwise adversely

affected by the Navy's and the CHC's unlawful bias and prejudice

against Non-liturgical chaplains"; (2) chaplains who "saw or

experienced the Navy's Non-liturgical bias and left active duty

- 24 -
or retired early rather than endure that bias and prejudice";

and (3) chaplains "who have not yet personally suffered career

injury as a result of the practices and policies challenged here

because manifestation of the injury has been delayed [.]" Mot.

at 3-5.

A. Legal Standard

"The class action is an exception to the usual rule that

litigation is conducted by and on behalf of the individual named

parties only." Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,

2550 (2011) (citation and quotation marks omitted). Class

certification is governed by Rule 23 of the Federal Rules of

Civil Procedure. There are two components to the certification

inquiry: first, each of the four elements of Rule 23(a) must be

met; second, certification of the proposed class must be

appropriate under at least one of the three categories

enumerated in Rule 23 (b) . Richards v. Delta Air Lines, Inc.,

453 F.3d 525, 529 (D.C. Cir. 2006).

The proponent of class certification must prove by a

preponderance of the evidence that the requirements of Rule 23

are satisfied. Wal-Mart, 131 S. Ct. at 2548. The Supreme

Court has stated that "Rule 23 does not set forth a mere

pleading standard"; rather, " [a] party seeking class

certification must affirmatively demonstrate [its] compliance

- 25 -
with the Rule - that is, [it] must be prepared to prove that

there are in fact sufficiently numerous parties, common

questions of law or fact, etc." Id. at 2551 (emphasis in

original)

The trial court must conduct "a rigorous analysis" to

ensure that the requirements of Rule 23 have been met. Id.

This inquiry may overlap with an appraisal of the merits, for

"it may be necessary for the court to probe behind the pleadings

before coming to rest on the certification question [.]" Id.

(citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160,

(1982)). Rule 23 is not, however, a "license to engage in free-

ranging merits inquiries [,]" and merits questions may only be

considered to the extent that "they are relevant to determining

whether the Rule 23 prerequisites for class certification are

satisfied." Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 133

S. Ct. 1184, 1194-95 (2013).

B. Rule 23 (a)

Under Rule 23 (a) , a plaintiff seeking certification must

demonstrate that: ( 1) the class is so numerous that joinder of

all members is impractical; (2) there are questions of law or

fact common to the class; ( 3) the claims or defenses of the

representative parties are typical of the claims or defenses of

the class; and ( 4) the representative parties will fairly and

- 26 -
adequately protect the interests of the class. Fed. R. Civ. P.

23 (a) . These four requirements are commonly referred to as

numerosity, commonality, typicality, and adequacy of

representation, respectively.

The parties do not dispute that the numerosity requirement

is satisfied; therefore, the Court confines its analysis to a

discussion of the other three requirements.

1. Commonality

Rule 23 (a) (2) requires the existence of "questions of law

or fact common to the class." Fed. R. Civ. P. 23 (a) (2). This

requirement was the basis of the Supreme Court's decision in

Wal-Mart. Wal-Mart involved a proposed class of current and

former female employees who alleged that Wal-Mart had a "strong

and uniform 'corporate culture'" that "permit [ted] bias against

women to infect, perhaps subconsciously, the discretionary

decisionmaking of each one of Wal-Mart's thousands of managers -

thereby making every woman at the company the victim of one

common discriminatory practice." Wal-Mart, 131 S. Ct. at 2548.

The Supreme Court rejected this theory as a basis for

commonality. It explained that the inquiry under Rule 23(a) (2)

is not whether class members "have all suffered a violation of

the same provision of law [,]" but rather whether "a classwide

proceeding [will] generate common answers apt to drive the

- 27 -
resolution of the litigation." Id. at 2551 (emphasis added and

citation and internal punctuation omitted) . In other words, the

class members' claims must depend on a "common contention" that

is "of such a nature that it is capable of classwide resolution

- which means that determination of its truth or falsity will

resolve an issue that is central to the validity of each one of

the claims in one stroke." Id. (citations omitted).

Quoting a prior decision, the Court observed that:

Conceptually, there is a wide gap between (a) an
individual's claim that he [sic] has been denied a
promotion on discriminatory grounds, and his
[sic] otherwise unsupported allegation that the
company has a policy of discrimination, and (b) the
existence of a class of persons who have suffered the
same injury as that individual, such that the
individual's claim and the class claim will share
common questions of law or fact and that the
individual's claim will be typical of the class
claims.

Id. at 2553 (quoting Falcon, 457 U.S. at 157-58 (quotation

marks omitted)). The Court acknowledged this gap could

theoretically be bridged by "significant proof" that Wal-Mart

"operated under a general policy of discrimination." Id. It

observed, however, that "Wal-Mart's announced policy forbids sex

discrimination," and consequently, the "only corporate policy

that the plaintiffs' evidence convincingly establishes is Wal-

Mart's 'policy' of allowing discretion by local supervisors over

employment matters." Id. at 2553-54. A policy of local

- 28 -
discretion, the Court concluded, did not satisfy the commonality

requirement because it "is a policy against having uniform

employment practices[,]" and therefore, "demonstrating the

invalidity of one manager's use of discretion will do nothing to

demonstrate the invalidity of another's." Id. at 2554 (emphasis

in original).

In this case, just as in Walmart, Plaintiffs do not allege

that the Navy ever had an express policy against the advancement

of Non-liturgical Protestants. Instead, they rest their case on

an array of individual anecdotes they contend demonstrate a

"pervasive pattern of religious preference." Yet the theories

of religious discrimination reflected in these individual

anecdotes vary widely. Some of the Individual Plaintiffs

conclude that they were discriminated against because they

believe themselves to be more qualified than chaplains of

different faiths who fared better in the Chaplain Corps'

personnel system. Others complain of poor fitness reports and

unfavorable work assignments issued by their superiors, which

they blame on interpersonal disputes combined with religious

animosity, retaliation, and/or racial or gender discrimination.

Yet others tell extended narratives of local command officers or

senior chaplains interfering with their ministry efforts,

- 29 -
prayer, or worship styles for a variety of reasons they

attribute to religious hostility. 13

These diverse circumstances and theories of discrimination

undermine Plaintiffs' efforts to establish commonality at the

outset. See, e.g., Wal-Mart, 131 8. Ct. at 2557 (plaintiffs

could not show commonality because they "held a multitude of

different jobs, at different levels of Wal-Mart's hierarchy, for

variable lengths of time, in 3, 400 stores, sprinkled across 50

states" and were subjected "to a variety of regional policies

that all differed"); Garcia v. Johanns, 444 F.3d 625, 632 (D.C.

Cir. 2006) ("Establishing commonality for a disparate treatment

13
By way of illustration, one chaplain attributes his non-
selection for promotion to rumors spread about his "stability
and performance" following a referral for psychiatric evaluation
after his "liberal" command Chaplain overheard him telling his
wife that his ministry was "truncated by demonic forces
personified by Chaplains." Addendum A to Consol. Compl. ~ 50.
Four other chaplains stationed in Naples, Italy contend that
they received poor fitness reports from Catholic superior
officers for praying "in Jesus name." Id. ~~ 5, 10, 18, 62-63.
A chaplain stationed in Okinawa, Japan from 1991 until 1993
claims that "his Liturgical Protestant rating chaplain gave him
a poor fitness report" for failing "to support his rater's .
prayer breakfasts" and "preaching that men who call themselves
Christians should live as Christians." Consol. Compl. ~ 184(b).
Another chaplain believes his non-promotion was retaliation by a
Catholic board member who allegedly accused him of "stealing
sheep" after baptizing a woman who asked to be baptized by
immersion. Id. ~ 184(g). Another chaplain resigned after being
investigated by the Navy for sexual harassment but attributes
the investigation to religious discrimination. Addendum A to
Consol. Compl. ~ 3 0. Two Hispanic chaplains claim to have
suffered a combination of religious and racial discrimination.
Id. ~~ 40, 54. These types of individualized allegations
pervade the Consolidated Complaint.
- 30 -
class is particularly difficult where, as here, multiple

decisionmakers with significant local autonomy exist.")

Nevertheless, as our Court of Appeals has emphasized, the

commonality requirement is not a predominance requirement and

"even a single common question will do." D.L. v. Dist. of

Columbia, 713 F.3d 120, 128 (D.C. Cir. 2013) (citing Wal-Mart,

131 S. Ct. at 2556). Therefore, the Court shall consider

whether Plaintiffs have identified any common issue of law or

fact tying their injuries together. 14

14
Plaintiffs argue that the Court's 2002 class certification
decision in Adair, 209 F.R.D. at 10, is the "law of the case,"
thereby governing the Court's analysis on this Motion. Sur-Sur-
Reply at 6. The Adair Class Certification Order was vacated at
Plaintiff's request on May 30, 2006, and is, therefore, no
longer "law of the case." Coalition to End Permanent Congress
v. Runyon, 979 F.2d 219, 221 n.2 (D.C. Cir. 1992) (once vacated,
an opinion is "no longer law of the case") (Silberman, J.,
dissenting). Furthermore, in light of Wal-Mart, many of the
Court's conclusions in Adair are no longer good law. For
example, the Adair decision held that, "[i]n determining whether
to certify a class, the court should not consider the underlying
merits of the plaintiff's claims," and should "accept as true
the allegations set forth in the complaint." Adair, 209 F.R.D.
at 8. Wal-Mart, however, makes clear that "Rule 23 does not set
forth a mere pleading standard" and the "party seeking class
certification must affirmatively demonstrate [its] compliance
with the Rule that is, [it] must be prepared to prove that
there are in fact common questions of law or fact [.]"
Wal-Mart, 131 S. Ct. at 2551 (emphasis in original). Similarly,
in Adair, the Court based its commonality finding on Plaintiffs'
allegations of "a pervasive pattern" of religious
discrimination. Adair, 209 F.R.D. at 10. In Wal-Mart, however,
the Supreme Court held that such allegations do not satisfy Rule
23(a) (2) unless there is "significant proof" that the defendant
"operated under a general policy of discrimination." Wal-Mart,
131 S. Ct. at 2553. In fact, as our Court of Appeals recently
- 31 -
 a. "Culture" of Denominational Favoritism

Just as in Wal-Mart, Plaintiffs rely heavily on allegations

of a pervasive ~culture of prejudice" in the CHC. Mot. at 16,

37. They argue that the ~common issue in each class member, s

individual case is the Navy, s systemic and institutionalized

culture of prejudice against Non-liturgical chaplains and the

faith groups they represent, and the resulting twin

unconstitutional message of favoritism for preferred

denominations and prejudice against Plaintiffs, [sic] " Mot. at

39; see also id. at 5, 14, 15, 28, 29, 31. They define

~organizational culture" as a. ~set of common understandings,"

composed of shared ~values, ,, ~assumptions," and ~beliefs,"

~around which action is organized.,, Mot. at 15-16 (citations

omitted)

Under Wal-Mart, this theory only satisfies the commonality

requirement if the Navy,s culture of prejudice is so strong as

to suggest that the Chaplain Corps operated under a ~general

observed, ~wal-Mart 's interpretation of Rule 23 (a) (2) has
changed the landscape" of class certification. D. L., 713 F. 3d
at 126-27 (citations omitted). Con~equently, neither the
Court,s 2002 certification order in Adair nor the other pre-Wal-
Mart commonality cases on which Plaintiffs rely are controlling.
See Athridge v. Aetna Cas. & Sur. Co., 604 F.3d 625, 632 (D.C.
Cir. 2010) (noting exception to ~law of the case" doctrine where
there is an ~intervening change in controlling law").

- 32 -
policy" of discrimination. 15 Plaintiffs have not come close to

satisfying this demanding standard.

First, the Navy's guiding documents clearly and

unequivocally seek to promote a culture of tolerance, not bias.

For example, the Chaplain Corps' written "Professional

Standards" expressly state that the Chaplain Corps "is a

religiously impartial governmental organization with no inherent

theology of its own" which exists to "empower individual

chaplains" to accommodate "the religious requirements of

personnel of all faiths." SECNAVINST 5351.1(5). The Standards

further provide that "[i] t is the policy of the CHC to be

equally tolerant of every Service member and other

authorized persons irrespective of that individual's religious

15
While Plaintiffs bring their discrimination claims under the
First and Fifth Amendments, not Title VII as in Wal-Mart, they
fail to offer any other viable theory as to how a class-wide
determination of "culture" might resolve an issue central to
their claims. They do not "allege hostile work environment
claims under Title VII[.]" In re Navy Chaplaincy, 850 F. Supp.
2d 86, 116 (D. D.C. 2 012) ("In re Navy Chaplaincy II") . They
argue vaguely that the Establishment Clause required Defendants
to maintain a "denominationally neutral" culture. Reply at 9.
But while they are correct that "[t]he government must be
neutral when it comes to competition between sects," Zorach v.
Clauson, 343 U.S. 3 06, 314 ( 1952) , they cite no authority for
the proposition that the Government must go beyond a policy of
neutrality to, in fact, achieve a denominationally neutral
culture. Consequently, the Court considers Plaintiffs' "culture
of prejudice" theory only insofar as it might demonstrate that
the Navy operates under a "general policy" of religious
discrimination.

- 33 -
beliefs or unbelief" and to endeavor to "accommodate the

religious beliefs of all to the fullest possible extent." Id.

encl. 2 (2), (5) (emphasis added).

Likewise, the Chaplain Corps' Guiding Principles, which

"communicate the values that hold· the CHC together as an

institution and serve as a point of reference for chaplains

throughout their careers," state that "[w] e seek to understand

cultural and religious values that differ from our own" and

"believe the right to exercise our faith is best protected when

we protect the rights of all to worship or not worship as they

choose." Id., encl. 4.

To prove that a "culture of denominational favoritism"

nevertheless exists, Plaintiffs rely primarily on affidavits and

deposition testimony in which they and other Non-liturgical

chaplains describe particular instances of hostile treatment,

retaliation, and/or specific local command officers scheming to

suppress, take over, or shut down their Non-liturgical services.

See generally Addendum A to Consol. Compl.; Reply at 20-22; Sur-

Sur Reply at 2-3.

However, Captain Lyman M. Smith, Executive Assistant to the

Chief of Navy Chaplains, has submitted a declaration explaining

that "[c] ommanding officers at the local level have ultimate

responsibility for providing command religious programs" in each

- 34 -
of the "500 separate geographically dispersed duty assignments 11

served by the CHC, and "[n]either the Chief of Chaplains nor the

Chaplain Corps controls the individual command religious

programs which are in place at each duty station. 11
Supp. Smith

Decl. at 2-3 [Dkt. No. 47-19] (citing OPNAVINSTR 1730.1D).

This . decentralized system, combined with clear Guiding

Principles and Professional Standards requiring religious

tolerance and non-discrimination, wholly defeats Plaintiffs'

suggestion that their individual experiences of discrimination

and religious intolerance stem from a "culture of prejudice 11

that is common to the class as a whole. See, e.g., Stastny v.

S. Bell Tel. & Tel. Co., 628 F.2d 267, 279 (4th Cir. 1980)

("Substantial degree of and perhaps almost complete local

autonomy in separate facilities . cuts against any inference

for class action commonality purposes. 11
); Garcia v. Veneman, 211

F.R.D. 15, 22 (D.D.C. 2002) (holding in discrimination case that

"[c]ommonality is defeated by the large numbers and
16
geographic dispersion of the decision-makers 11
)

Plaintiffs also cite to a declaration submitted by Captain

Larry H. Ellis, who refers, without elaboration, to a general

"perception 11
in the mid-1990s "among non-liturgical chaplains

16
Indeed, Plaintiffs themselves acknowledge that their
individual experiences do not portray a "culture so much as "a 11

series of individual incidents. Mot. at 16. 11

- 35 -
that the Chaplain Corps was biased toward liturgical

denominations and against non-liturgical chaplains. 11
Aff. of

Captain Larry H. Ellis, U.S.N. (Retired) ("Ellis Aff. 11
) ~ 36

[Dkt. No. 160-6]; see also id. ~~ 6, 11. However, neither the

Ellis Affidavit, nor the related Ellis Memorandum [Dkt. No. 132-

15] 1 suggest that Non-liturgical chaplains' perceptions of

religious bias grew out of an organizational culture that is

common to the CHC as a whole. 17

Thus, while Plaintiffs may have suffered individual

instances of religious intolerance, there is no evidence to

suggest their experiences reflect a culture that is consistent

across time and space and common to the entire class. See Dukes

17
In some cases, such perceptions appear to have arisen only
after individual chaplains spoke with their endorsing agencies
or read documents related to this case and other similar cases.
See, e.g., Decl. of Patrick M. Sturm~ 4 [Dkt. No. 178-7] (after
"talking with my endorser, it became obvious that CFGC chaplains
were not being treated fairly in the Navy Add. to Consol. 11
) ;

Compl. at 22, 23 (only "[a]fter reviewing the issues and
evidence related to this action, did "CH Hatch bee [o] me aware
11

[of] the CHC' s biased policies id. at 26 (prior to reading
11
);

documents related to this case, CH Hendricks "believed [that the
Navy's] promotion system was fair, all records were competitive,
and faith group was not important [to promotion] id. at 3 8 11
) ;

("Prior to [hearing about the allegations in this case] , CH Mak 11

"believed the Navy's . promotion system was fair and [that]
faith group was not a factor in promotion decisions id. at 49 11
);

( "CH Quiles thought his non-selection was 'the luck of the
draw.' Through one of the co-Plaintiffs, he learned of
the injustice done to him. id. at 67 ("Prior to hearing about
11
);

th [is] litigation in 2002, CH Watson had no knowledge of the
evidence showing religious bias[.] 11
).

- 36 -
v. Wal-Mart Stores, Inc., 964 F. Supp. 2d 1115, 1124 (N.D. Cal.

2013) (concluding on remand from the Supreme Court that,

although plaintiffs' anecdotes of discrimination "succeeded in

illustrating attitudes of gender bias ·held by managers at Wal-

Mart, they failed to marshal significant proof that intentional

discrimination was a general policy affecting the entire class")

(emphasis added) .

Therefore, Plaintiffs' individual anecdotes and allegations

of a "culture of prejudice" do not provide "significant proof"

that Defendants "operated under a general policy of

discrimination," as required under Wal-Mart. Wal-Mart, 131 S.

Ct. at 2553.

b. Policies and Practices

Next, Plaintiffs purport to satisfy the commonality

requirement by challenging the legality of specific personnel

policies and practices that allegedly "result [ed] in

denominational preferences in the award of career

opportunities[.]" Reply at 11. They do not, however, dispute

that the Navy's policies expressly require denominational

neutrality and religious tolerance. Instead, they argue that

"[e]ach of the challenged practices allows denominational

representatives to make subjective judgments for which there is

no accountability and no process providing effective guarantees

- 37 -
that denomination does not enter into the decision." Reply at

20.

Insofar as Plaintiffs challenge facially neutral policies,

such as secret voting, the small size of selection boards, and

the practice of appointing two chaplains to each board, they

cannot prevail unless they establish that the policies are

motivated by discriminatory intent, lack a rational basis, or

"appear to endorse religion in the eyes of a 'reasonable

observer [ . ] ' " In re Navy Chaplaincy III, 738 F.3d at 430

(emphasis in original) As our Court of Appeals recently

concluded, Plaintiffs either do not allege or have not shown a

likelihood of success on the merits as to any of these theories.

Id. at 430 ("Given facially neutral policies and no showing of

intent to discriminate, [plaintiffs] have not shown [a]

likelihood of success [on their Equal Protection claims].") i id.

at 431 ("We feel confident that reasonable observers .

are most unlikely to believe that the policies convey a message

of government endorsement.").

For the same reasons, and because Plaintiffs make no

further evidentiary showing in this Motion, they also have not

presented "significant proof" to support such theories for

purposes of the commonality requirement under Rule 23 (a) (2).

- 38 -
Therefore, Plaintiffs' attack on facially neutral policies does

not infuse Rule 23 (a) (2) commonality into their claims. 18

Plaintiffs also challenge the so-called "1 RC" policy.

However, the evidence they have presented to establish the

existence of such a policy is negligible. It consists primarily

of a chart they prepared reflecting the religious affiliation of

promotion board members from 1977 until 2002. See Consol.

Compl., Ex. 15 ("Prom. Bd. Chart") [Dkt. No. 132-16] The chart

indicates that, from roughly FY 1987 until FY 2002, each

selection board included exactly one Roman Catholic member,

except for selection boards in FY 1987 and FY 1998, which

included two Roman Catholic members. Prom. Bd. Chart at 5-13.

The source of the information in the chart is unclear and

there are significant gaps in the data presented. But even if

the Court ignores these deficiencies, the chart does not suggest

that Roman Catholics were overrepresented, favored, or treated

differently than Non-liturgical board members in selection board

appointments. To the contrary, it shows that 75 Non-Liturgical

board members served on selection boards from FY 1987 and FY

18
In fact, this Court has already dismissed Plaintiffs' facial
challenge to various selection board practices, leaving only the
possibility of a challenge "as-applied" to "certain individual
chaplains." See In re Navy Chaplaincy II, 850 F. Supp. 2d at
96. By definition, a claim that only applies to "certain
individual chaplains" would not support commonality as to the
entire class.

- 39 -
2002, while only 48 Roman Catholic board members served during

the same time period. See generally Prom. Bd. Chart at 5-13.

Furthermore, at all relevant times, the Navy's regulations

specifically prohibited "[e] xclusion from board membership by

reason of gender, race, ethnic origin, or religious

affiliation." SECNAVINST 1401.3 ~ 4(a).

Thus, there is virtually no evidence in the record

suggesting the Navy ever, in fact, had a "1 RC" policy, and the

mere allegation of such a policy cannot provide a basis for

commonality under Rule 23(a) (2).

Finally, Plaintiffs suggest that the Navy's policies are

inadequate in a way that affects the class as a whole because,

although individual personnel decisions are delegated to the

discretion of specific selection boards, that policy of

delegation, which Plaintiffs refer to as "denominationalism,"

fails to protect against individualized instances of

discrimination. See, e.g., Reply at 10 ("The common theme in

all Plaintiffs [sic] challenges is the lack of effective

guarantees ensuring religious neutrality in career impacting

decisions."); Sur-Sur Reply at 2 ("Denominationalism is the Navy

allowing its senior chaplain[s] to exercise their denominational

bias without accountability.").

- 40 -
 Notwithstanding Plaintiffs' use of the label

"denominationalism" to describe the Chaplain Corps' personnel

system, their theory of commonality boils down to a complaint

that the Chaplain Corps lacks effective protections against

discriminatory decision-making by individual chaplains. See

Reply at 20 ("Each of these challenged practices allows

denominational representatives to make subjective judgments for

which there is no accountability and no process providing

effective guarantees that denomination does not enter into the

decision.").

This theory of commonality is precisely the one rejected by

Walmart and its progeny. See Walmart, at 2553-54 ("The only

corporate policy that the plaintiffs' evidence convincingly

establishes is Wal-Mart's 'policy' of allowing discretion by

local supervisors over employment matters.") i Bolden v. Walsh

Constr. Co., 688 F.3d 898, 893 (7th Cir. 2012) ("Plaintiffs[]

contend[] that Walsh has 14 policies that present common

questions, but all of these boil down to the policy of affording

discretion to each site's superintendent - and Walmart tells us

that local discretion cannot support a company-wide class no

matter how cleverly lawyers may try to repackage local

variability as uniformity.").

- 41 -
 In sum, although Plaintiffs repeatedly cite to the alleged

existence of unconstitutional "policies and practices" as a

basis for class certification, they have not presented

"significant proof" of any specific unconstitutional policy or

practice that applied to them across the board as a class and

produced a common legal injury. Therefore, they may not rely on

such policies or practices to satisfy · the commonality

requirement of Rule 23(a) (2).

c. Statistical Evidence

In their final effort to establish commonality, Plaintiffs

rely on statistical evidence purporting to show religious

disparities in personnel outcomes within the CHC.

Statistical disparities alone generally are not proof that

any particular plaintiff, much less the class as a whole, has

been discriminated against. See, e.g., Bolden, 688 F.3d at 896

("If [defendant] had 25 superintendents, 5 of whom discriminated

aggregate data would show that black workers did worse

than white workers - but that result would not imply that all 25

superintendents behaved similarly, so it would not demonstrate

commonality."). Consequently, Plaintiffs' statistical evidence

can satisfy the commonality requirement only if it is so stark

as to indicate that the CHC "operated under a general policy of

discrimination," Wal-Mart, 131 S. Ct. at 2553, or suggest to the

- 42 -
 "reasonable observer" that the Navy has endorsed a religious

group. In re Navy Chaplaincy III, 738 F.3d at 430. 19

As. this Court has already found, and the Court of Appeals

recently affirmed, Plaintiffs' statistical evidence to the

extent it is even statistically significant - "does not remotely

approach the stark character" that might satisfy either of these

tests. Id. at 429 ("[T]he disparity between 73.3% and 83.3%

[promotion rates] does not remotely approach the stark character

of the disparities in Gomillion [v. Lightfoot, 364 U.S. 339

(1960)] or Yick Wo [v. Hopkins, 118 U.S. 356 (1886)] ."); id. at

431 ("Assuming 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 [or

her] to perceive endorsement.").

Furthermore, Dr. Leuba, Plaintiffs' expert, has expressly

stated that his statistical analysis does not purport to show

that discrimination infects every CHC personnel decision, but

merely that "some bias will creep in" because he believes that

chaplains of different faiths "cannot avoid having their

19
Because Plaintiffs bring their claims under the First and Fifth
Amendments, not Title VII, disparate impact is not sufficient to
sustain their claims; our Court of Appeals has held that they
must demonstrate intentional discrimination or objective
religious endorsement. In re Navy Chaplaincy III, 738 F. 3d at
429-30 (citations omitted) .

- 43 -
judgment tainted by their beliefs, even when they try to be

denominationally neutral." See Decl. of Harald Leuba, Ph.D. ,

dated Sept. 5, 2011 ("Sept. 5, 2011, Leuba Decl. ") at 11, 21

[Dkt. No. 99-3]

In fact, Dr. Leuba emphasizes that intentional

discrimination on a promotion board "would be a RARE occasion

indeed" id. at 2 8, and that he does "not opine that this is

intentional, knowing, denominational discrimination on the part

of the individual chaplains." Statistical Evidence of the

Navy's Religious Preferences, Decl. [of Harald Leuba, Ph.D.]

dated Nov. 11, 2011, at 45 [Dkt. No. 147-10] (emphasis in

original) . 20 Therefore, Plaintiffs' statistical evidence does

20
Dr. Leuba' s analysis also suffers from a series of
methodological flaws, one of which is that he "made no attempt
to control for potential confounding variables" other than
religious denomination, such as "promotion ratings, education,
or time service," that might account for the disparities he
observed. In re Navy Chaplaincy III, 738 F.3d at 429 (observing
that Dr. Leuba's analysis "does little for our analysis" because
"[c] orrelation is not causation") (citation and quotation marks
omitted); see also Sept. 5, 2011, Leuba Decl. at 21 ("The data
show statistical correlation; they do not demonstrate intent or
cause.") . This failure renders his analysis of little value in
establishing that faith group membership is, in fact, the cause
of the observed disparities. See Love v. Johanns, 439 F.3d 723,
731 (D.C. Cir. 2006) ("[T]here are countless other, non-
discriminatory explanations for any patterns in the USDA's
lending data. Instead of conducting a relatively simple
statistical analysis (such as a multiple regression) to control
for any or all of these variables, [plaintiffs' expert] simply
reported a series of elementary cross-tabulations, from which it
is impossible as a statistical matter to draw meaningful
conclusions.") (citations omitted)
- 44 -
not constitute "significant proof" that intentional religious

discrimination or religious endorsement is or was Defendants'

"standard practice."

For all of the foregoing reasons, Plaintiffs have not

demonstrated the existence of a "common answer to the crucial

question why was I disfavored." Wal-Mart, 131 S. Ct. at 2552

(emphasis in original) . Consequently, they have not satisfied

the commonality requirement of Rule 23(a) (2).

2. Typicality

Plaintiffs also fail to satisfy the typicality requirement

of Rule 23 (a) (3). This provision requires that "the claims or

defenses of the representative parties are typical of the claims

or defenses of the class." Fed. R. Civ. P. 23 (a) (3). Like the

commonality requirement, it seeks to "measure the degree of

interrelatedness between the claims in a class action," but it

"is more exacting because it requires sufficient factual and

legal similarity between the class representative's claims and

those of the class to ensure that the representative's interests

are in fact aligned with those of the absent class members."

William B. Rubenstein, Newberg on Class Actions § 3:31 (5th ed.

2013). The typicality requirement is satisfied only "if each

class member's claim arises from the same course of events that

led to the claims of the representative parties and each class

- 45 -
member makes similar legal arguments to prove the defendant's

liability." Pigford v. Glickman, 182 F.R.D. 341, 349· (D.D.C.

1998).

As discussed, Plaintiffs have not shown that their claims

have even a single question of law or fact in common with any of

the absent class members. Consequently, it would be impossible

to conclude that their claims "arise from the same course of

events" or are otherwise "typical" of the absent class members

claims. See Falcon, 457 U.S. at 157-58 n .13 (noting that the

"commonality and typicality requirements tend to merge") ;

Daskalea v. Washington Humane Soc., 275 F.R.D. 346, 358 (D.D.C.

2011) (typicality requirement not met where "members of the

proposed class suffered a wide range of deprivations and

claim distinct injuries"); Webb v. Merck & Co., Inc., 206 F.R.D.

399, 408 (E.D. Pa. 2002) (analyzing commonality and typicality

together and concluding that neither were met because

"[p] laintiffs were employed in different states, in different

divisions, in different facilities and at different levels

within the company hierarchy. In essence, this action is

nothing more than a consolidation of 20 accounts of

individualized disparate treatment.").

- 46 -
 In sum, Plaintiffs have also failed to meet the typicality

requirement of Rule 23 (a) (3) . 2 l

3. Adequacy of Representation

The final requirement for class certification under Rule

23 (a) is that "the representative parties will fairly and

adequately protect the interests of the class." Fed. R. Civ. P.

23 (a) (4). "The adequacy requirement is satisfied upon a showing

that (1) there is no conflict of interest between the proposed

class representative and other members of the class, and (2) the

proposed class representative will vigorously prosecute the

interests of the class through qualified counsel." Alvarez v.

Keystone Plus Constr. Corp., No. 13-602, 2014 WL 1400846, at *6

(D.D.C. Apr. 11, 2014) (citations and quotation marks omitted).

"The inquiry into adequacy of representation, in particular,

requires the district court's close scrutiny, because the

purpose of Rule 23 (a) (4) is to ensure due process for absent

class members, who generally are bound by a judgment rendered in

a class action." Rattray v. Woodbury County, 614 F.3d 831, 835

(8th Cir. 2010).

Defendants argue that Plaintiffs are not adequate

representatives because "their paramount interest in this

2
Having concluded as much, the Court need not reach Defendants'
l

challenge to Plaintiffs' "mix and match" theory of typicality.
See Opp'n at 41-42.
- 47 -
litigation is the advancement of their collective goal of

institutional reform," which is not necessarily aligned with the

individual interests of each class member. Opp'n at 45-46. The

Court agrees.

By bringing their claims in this Court, where they are

limited to declaratory and injunctive relief, rather than in the

Court of Federal Claims, where no such limits are present, and

by further seeking to certify the class under Rule 23(b) (1) and

(b) (2), Plaintiffs are jeopardizing the rights of individual

class members to seek the full range of remedies to which they

may be entitled. See Wal-Mart, 131 8. Ct. at 2559 (noting

"perverse incentives for class representatives to place at risk

potentially valid claims for monetary relief" in order to ensure

class certification) . Plaintiffs' desire for wide-ranging

institutional reform therefore may very well be in conflict with

the interests of specific class members to obtain individualized

and/or monetary relief.

Furthermore, Plaintiffs have repeatedly subordinated the

proposed class members' interests in prompt adjudication of

thei:J;" claims to their campaign for institutional reform. For

example, rather than expeditiously preparing this case for

trial, Plaintiffs filed a series of unsuccessful motions for

injunctive relief and related appeals, which have taken years to

- 48 -
resolve. See Chaplaincy of Full Gospel Churches, 454 F. 3d at

295 (describing Plaintiffs' "prolonged series of motions and

petitions") (citations omitted).

In 2006, further delaying any prompt adjudication of this

lawsuit, Plaintiffs moved this Court to vacate its Order

granting class certification. They acknowledge that one

significant reason for that request was to permit their counsel

to file Gibson as a new putative class action in a separate

ju~isdiction and thereby avoid rulings of this Court they

perceived as hostile to their quest for institutional reform.

See Pl.'s Reply at 27; Pl.'s Opp'n to Defs. Mot. for P. Summ. J.
22
at 30-31 [Dkt. No. 172]

Thereafter, in conjunction with the filing of Gibson,

Plaintiffs took further actions that significantly delayed the

progress of this case. For example, after the District Court

sitting in the Northern District of Florida granted Defendants'

motion to transfer Gibson to this Court, Plaintiffs asked this

Court to stay the case while their counsel unsuccessfully

appealed the Florida District Court's transfer order to the

22
Plaintiffs suggest that class decertification was a "logical"
step because of the Court's "four-year delay in defining the
class [.]" Pls.' Reply at 27. Yet there is no indication that
Plaintiffs ever asked the Court to define the class or that its
failure to do so resulted from anything other than the extensive
litigation surrounding other issues in the case, including
Plaintiffs' many Motions for injunctive relief.
- 49 -
Court of Appeals for the Eleventh Circuit. See Gibson Dkt. No.

4. Thereafter, Plaintiffs filed yet another motion in this

Court to transfer Gibson back to the, Northern District of

Florida, which was also unsuccessful. See Gibson Dkt. Nos. 5 &

6. These actions alone set the progress of this case back by

approximately two years.

Moreover, in moving for class decertification in this case

in 2006, Plaintiffs stated that they were "no longer willing or

able to represent or to assume the burdens inherent in

representing the class" because of recent changes to their

employment status and other life transitions. See Pls.' Mot. to

Vacate Order Granting Pls.' Mot. to Certify Class at 2 [Adair

Dkt. No. 156]. Plaintiffs have not explained why, having once

abandoned their willingness to represent the class, they are now

willing and able, once again, to serve as class representatives.

Finally, the Court notes the existence of an entirely

different type of conflict of interest. In the context of this

Motion, Plaintiffs have deviated significantly from their

original core allegation that the Navy's bias lies against Non-

liturgical Protestants as a class. They now argue that the Navy

actually favors certain "liberal" Non-liturgical Protestants,

such as Baptists, but disfavors "[t]heologically more

conservative" Non-liturgical denominations. Mot. at 17-18.

- 50 -
 Plaintiffs' readiness to draw divisions among members of

the proposed class strongly indicates that they cannot be fair

and impartial representatives of the class as a whole. Baptist

class members (or those of other "liberal" faiths) might have

legitimate concerns that Plaintiffs will not zealously represent

their interests. See Phillips v. Klassen, 502 F. 2d 362, 366

(D.C. Cir. 1974) ("Class members whose interests are

antagonistic in fact to, or even 'potentially conflicting' with,

the interests of the ostensibly representative parties cannot be

bound, consistent with the requirements of due process, to an

adjudication taken in their name." (quoting Hansberry v. Lee,

311 u.s. 32, 41-42 (1940)) 23

In sum, Plaintiffs' litigation record, considered in its

entirety, raises serious questions as to whether they will

properly protect and prioritize the welfare and interests of the

class members, especially to the extent such interests diverge

from their determination to obtain broad scale institutional

reform. Cf. E. Texas Motor Freight Sys. Inc. v. Rodriguez, 431

23
While the Court acknowledges that some of the named Plaintiffs
are themselves Baptist, that fact does not resolve its concerns.
Other Baptist chaplains, as well as chaplains of deriominations
that Plaintiffs consider to be "liberal," may or may not agree
with Plaintiffs' view that they are "favored" by the Navy's
policies and may, in any event, be concerned that Plaintiffs'
counsel will treat them differently from other members of the
class.

- 51 -
U.S. 395, 405 (1977) (named plaintiffs' request for relief that

was inconsistent with vote of class members and their "failure

to protect the interests of class members by moving for

certification surely bears strongly on the adequacy of the

representation that those class members might expect

receive")

For all of the foregoing reasons, Plaintiffs have not

demonstrated that they are adequate class representatives.

C. Rule 23 (b)

Even assuming Plaintiffs had satisfied the four

prerequisites set forth in Rule 23(a), they would still bear the

burden of establishing that the class is maintainable under one

of the subdivisions of Rule 23 (b) . As discussed below, they

also fail to meet this burden.

1. Rule 23(b)(l}

Under Rule 23(b) (1), certification is appropriate where

requiring the prosecution of separate actions by individual

class members would run the risk of establishing "incompatible

standards of conduct" for the defendants, Fed. R. Civ. P.

23(b) (1) (A); or where individual adjudications would, "as a

practical matter, be dispositive of the interests of the

other members not parties to the individual adjudications or

would substantially impair or impede their ability to protect

- 52 -
 their interests." Fed. R. Civ. P. 23 (b) (1) (B). Since there is

"always some risk'' that individual actions may expose a

defendant to conflicting judgments on liability, certification

under subdivision (b) (1) (A) requires "something more namely, a

legitimate risk that separate actions may establish

'incompatible standards of conduct, '" so as to make individual

actions "'impossible or unworkable. '" Daskalea, 275 F.R.D. at

365 (emphasis in original) (citing 2 H. Newberg & A. Conte,

Newberg on Class Actions§ 4:4 (4th ed. 2002)) and Wal-Mart, 131

S. Ct. at 2558)

The Court finds virtually no risk that prosecuting separate

actions by individual class members would establish

"incompatible standards of conduct" for Defendants. At least

five district courts and two Courts of Appeals have examined

Plaintiffs' allegations (or substantially similar ones) over the

past decade and none has found the Navy's current policies to be

unlawful, much less accepted Plaintiffs' invitation to rewrite

such policies in their entirety. 24 Consequently, there is no

legitimate risk that maintaining separate actions would

establish incompatible standards of conduct for Defendants.

24
See In re Navy Chaplaincy III, 783 F.3d at 429-431, Larsen I,
525 F.3d 1; Larsen II, 887 F. Supp. 2d 247; Larsen v. U.S. Navy,
486 F. Supp. 2d 11 (D.D.C. 2007); Wilkins Mem. Op. of June 29,
2005, aff'd 232 F. App'x 710 (9th Cir. 2007); Sturm Mem. Op. of
June 18, 2002, aff'd 76 F. App'x 833 (9th Cir. 2003);
- 53 -
 Likewise, separate actions would not impair or impede the

ability of nonparties to protect their interests. Quite the

contrary: allowing the case to proceed as a class action might

have preclusive effect for absent class members, thereby

impairing their ability to protect their own interests. Wal-

Mart, 131 S. Ct. at 2559 (noting that class certification under

Rule 23 (b) (2) created possibility "that individual class

members' compensatory-damages claims would be precluded by

litigation they had no power to hold themselves apart from").

Requiring separate actions, however, will not prevent any absent

class member from challenging the Navy's personnel practices or

bringing an individual discrimination claim in the future.

Consequently, Plaintiffs have not shown that the proposed

class is maintainable under Rule 23(b) (1).

2. Rule 23 (b) (2)

Rule 23 (b) (2) is satisfied where "the party opposing the

class has acted or refused to act on grounds that apply

generally to the class, so that final injunctive relief or

corresponding declaratory relief is appropriate respecting the

class as a whole[.]" Fed. R. Civ. P. 23(b) (2). The "key to the

(b) (2) class is the indivisible nature of the injunctive or

declaratory remedy warranted the notion that the conduct is

such that it can be enjoined or declared unlawful only as to all

- 54 -
of the class members or as to none of them." D.L., 713 F.3d at

125 (citing Wal-Mart, 131 S. Ct. at 2557) (quotation marks

omitted) .

Rule 23 (b) (2) thus "applies only when a single injunction

or declaratory judgment would provide relief to each member of

the class. It does not authorize class certification when each

individual class member would be entitled to a different

injunction or declaratory judgment against the defendant." Id.

(citing Wal-Mart, 131 S. Ct. at 2557). Thus, it is not enough

for class plaintiffs to "superficially structure[] their case

around a claim for class-wide injunctive and declaratory relief

. if as a substantive matter the relief sought would merely

initiate a process through which highly individualized

determinations of liability and remedy are made; this kind of

relief would be class-wide in name only, and it would certainly

not be final." Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481,

498-99 (7th Cir. 2012).

As discussed above, Plaintiffs have not identified any

"common harm suffered as a result of a policy or practice that

affects each class member." Id. Furthermore, the primary

relief they seek under Rule 23(b) (2) is an order declaring the

results of each of their respective selection board proceedings

"void ab initio." Assuming such an order is available under the

- 55 -
case law in this Circuit, it certainly would not constitute

"final" relief to the class as a whole. Instead, it would

merely initiate a process by which individual chaplains would

seek reinstatement, new selection board proceedings, correction

of their personnel records, and backpay.

For these reasons, Plaintiffs have not shown that the

proposed class is maintainable under Rule 23(b) (2).

3. Rule 23 (b) (3)

Finally, Plaintiffs seek certification under Rule 23 (b) (3).

Certification under this subsection is appropriate where "the

questions of law or fact common to class members predominate

over any questions affecting only individual members" and "a

class action is superior to other available methods for fairly

and efficiently adjudicating the controversy." Fed. R. Civ. P.

23(b)(3). "[T]he predominance inquiry duplicates the

commonality analysis in many respects," but is "far more

demanding" and delves "further into the relative importance of

the common issues to the case." Daskalea, 275 F.R.D. at 368

(citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624 (1997)

and Barnes v. District of Columbia, 242 F.R.D. 113, 123 (D.D.C.

2007)). Ultimately, a class should be certified under Rule

23 (b) (3) "only when it would achieve economies of time, effort,

and expense, and promote uniformity of decision as to persons

- 56 -
similarly situated, without sacrificing procedural fairness or

bringing about other undesirable results." Myers v. Hertz

Corp., 624 F.3d 537, 547 (2d Cir. 2010) (citation and internal

punctuation omitted))

Here, Plaintiffs have failed to demonstrate commonality

under Rule 23 (a) (2) , and therefore, they necessarily fail to

satisfy the "far more demanding" requirement of predominance.

Furthermore, for all of the many reasons set forth above, class

certification would not achieve economies of time, effort, and

expense, but instead would exponentially complicate the case;

place at risk individual claims of absent class members that may

overlap with the allegations in the Consolidated Complaint; and

jeopardize Defendants' rights to individualized determinations

on myriad fact-specific claims of discrimination and Free

Exercise harm. In sum, Plaintiffs have also failed to

demonstrate that the proposed class is maintainable under Rule

23(b)(3).

- 57 -
IV. CONCLUSION

For the foregoing reasons, Plaintiffs' Motion shall be

denied, and their claim relating to the Thirds Policy shall be

dismissed for lack of subject matter jurisdiction.

September 4, 2014

Copies to: attorneys on record via ECF

- 58 -