UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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)
IN RE: NAVY CHAPLAINCY ) Case No. 1:07-mc-269 (GK)
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MEMORANDUM OPINION
Table of Contents
I • Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. The Navy Chaplain Corps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. The Navy's Personnel System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C. Plaintiffs' Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
D. Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II. Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. Standard of Review under Fed. R. Civ. P. 12(b) (1) .......... 9
B. Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. Mootness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
III. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. "As Applied" Challenges to Alleged Policies . . . . . . . . . . . . . . . 13
1. Faith Group Accession Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2. Staffing of CARE Boards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
3 . CARE Board Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 O
4. Former Alleged Recruiting Policy . . . . . . . . . . . . . . . . . . . . . . . . 21
5. Alleged use of Faith Group Categories . . . . . . . . . . . . . . . . . . . 23
6. Alleged Dual Systems of Discipline . . . . . . . . . . . . . . . . . . . . . . 23
7. SECNAVINST 1730. 7C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
8. Alleged Policy of a General Protestant Service .......... 29
9. Alleged Policy of Reserving Key Billets . . . . . . . . . . . . . . . . . 31
10. Alleged Practices Concerning Recalls . . . . . . . . . . . . . . . . . . . 32
B. "As Applied" Challenges to Conditions of Chaplain Corps ... 34
C. Challenges to Ad Hoc Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 7
1. Alleged Failure to Consider Prior Reports . . . . . . . . . . . . . . . 37
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2. Alleged Interference with Ministries .................... 41
3. Alleged Interference with Prayer ........................ 43
D. Portions of Claims of Specific Plaintiffs ................. 45
1. Statute of Limitations .................................. 46
2. Exhaustion of Administrative Remedies ................... 48
IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Plaintiffs are current and former Non-liturgical Protestant
chaplains in the United States Navy, their endorsing agencies, and
a fellowship of non-denominational Christian evangelical churches.
They bring this consolidated action against the Department of the
Navy and several of its officials. Plaintiffs allege that
Defendants discriminated against Non-liturgical Protestant
chaplains on the basis of their 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 Defendants' Motion to
Dismiss on Jurisdictional Grounds. Upon consideration of
Defendants' Motion [Dkt. No. 217], Plaintiffs' Opposition [Dkt.
No. 229], Defendants' Reply [Dkt. No. 235], and the entire record
herein, and for the reasons set forth below, Defendants' Motion
shall be granted in part and denied in part.
I . BACKGROUND
Only a brief recitation of the facts is necessary at this
time since the Court has familiarity with the extensive record in
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the case, which includes more than twenty written decisions by
Judge Ricardo Urbina when the case was assigned to him, by this
Court, and by the Court of Appeals.
A. The Navy Chaplain Corps
The Navy employs a corps of chaplains ("Chaplain Corps" or
"CHC") whose mission is to provide for the free exercise of
religion by members of the Navy, their dependents, and other
authorized persons. In re England, 375 F.3d 1169, 1171 (D.C. Cir.
2004) (citation omitted). In accordance with this mission, Navy
chaplains provide religious education, counseling, and support to
sailors and Marines and advise commanders on religious, moral, and
ethical issues. Id.
There are over 100 faith groups recognized by the Department
of Defense, which the Navy has grouped into four "faith group
categories" ( "FGCs") consisting of: Roman Catholic, Liturgical
Protestant, Non-liturgical Protestant, and Special Worship. In re
Navy Chaplaincy, 697 F.3d 1171, 1173 (D.C. Cir. 2012). 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. 11 ) , 6 (b) [Dkt. No. 134] . The Non-
liturgical Protestant category is composed of Protestant
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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 group includes
denominations not covered by the Protestant and Roman Catholic
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.
B. The Navy's Personnel System
Chaplains enter the Navy through a civilian clergy program or
a theological student program. Consol. Compl. ~ 44(c). The term
"accession" refers to the process of bringing a qualified
individual into the Chaplain Corps as a commissioned officer.
Thereafter, they are subject to the same personnel system as other
naval officers and must be selected for promotion in rank when the
needs of the service require. In re England, 375 F. 3d at 1172
(citing 10 U.S.C. § 611(a)). If an officer is considered but not
selected for a promotion, he or she is said to have "failed of
selection" ("FOS"). Chaplaincy of Full Gospel Churches, 454 F.3d
at 293. After failing of selection on two or more occasions, an
officer is subject to involuntary separation, known as "selective
early retirement." See 10 U.S.C. § 632(a)-(b). However, the Navy
may elect to continue an officer on active duty despite two or
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more failures of selection as its needs require. See 10 U.S.C. §
632 (c) (2).
Each of these decisions regarding a naval officer's career -
promotion, selective early retirement, and continuation on active
duty - is made by a "selection board" composed of superior officers
who act pursuant to statute and regulations prescribed by the
Secretary of Defense. See 10 U.S.C. §§ 611, 612.
c. Plaintiffs' Claims
Plaintiffs' Consolidated Complaint contains 18 Counts, many
of which contain various claims challenging current and historical
aspects of the CHC's personnel system. The following is a small
sampling of their claims.
First, they contend that the faith group categories
recognized by the Navy are discriminatory and arbitrary. Consol.
Comp 1. ~~ 33 - 38 . In particular, they claim that the categories
reflect neither religious demographics nor legitimate similarities
or differences among the worship traditions represented.
Second, they allege that in the past (but not since at least
2002), the CHC used religious quotas to apportion chaplain
opportunities among various faith groups. Consol. Compl. ~~ 33-
35. In particular, they allege that policies existed requiring one
or two Roman Catholic chaplains on selection boards, and that such
policies were designed to "stack" selection board proceedings
against Non-liturgical candidates and in favor of Roman Catholic
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and Liturgical Protestant chaplains despite their allegedly
declining numbers in the broader population. Consol. Compl. ~~
57(e)-(g). Defendants deny that such policies ever existed.
Third, Plaintiffs challenge a number of facially neutral
personnel practices - both current and historical - that they
believe have allowed religious bias to infect selection board
outcomes. Plaintiffs claim that the practices, taken together,
"enable[] 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,
738 F.3d 425, 428 (D.C. Cir. 2013).
Plaintiffs also challenge a practice, which they concede has
not existed since 2002, in which "each selection candidate's three-
digit 'faith group identifier' code was prominently displayed
throughout the selection board process." Consol. Compl. ~ 86.
Plaintiffs contend this practice had no purpose other than "to
identify a candidate's faith group to the board" for purposes of
permitting the board members "to exercise their individual or faith
group prejudice for or against other chaplains or faith groups,
particularly against Non-liturgical chaplains." Id. ~ 87.
Fourth and finally, Plaintiffs seek relief relating to a
variety of specific instances in which they allegedly suffered
discrimination and free exercise harm while serving in the Chaplain
Corps. See~' Addendum 1 to Consol. Compl. ~~ 12, 37, 41. These
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include occasions in which Plaintiffs claim to have been: (1)
retaliated against, criticized, and removed from their posts based
on the content of their religious teachings; (2) treated
differently from Liturgical chaplains with respect to disciplinary
issues and employment benefits; (3) required to officiate at
Liturgical services; and/ or ( 4) subjected to general policies
that, while not facially discriminatory, disfavored certain
aspects of their worship traditions. See generally id. ~~ 1-65.
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 26, 2000 [Adair Dkt. No. 21]. On
April 28, 2006, Plaintiffs' counsel filed Gibson as a separate
putative class action in the Northern District of Florida, and
that case was subsequently transferred to this District pursuant
to 28 U.S.C. § 1404. See Mem. Order, dated August 17, 2006, at 1
[Gibson Dkt. No. 1]. On June 18, 2007, the Court consolidated all
three actions, concluding that they raised "substantially similar
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constitutional challenges to the Navy Chaplaincy program." Mem.
Order, dated June 18, 2007, at 4 [Dkt. No. 11].
Between 2002 and 2009, the parties conducted discovery,
interspersed with collateral litigation and three interlocutory
appeals to the D.C. Circuit. At this Court's request, on October
3, 2012, Plaintiffs filed a Consolidated Complaint [Dkt. No. 134]
comprised of all the claims at issue in the consolidated case.
On September 4, 2014, this Court denied Plaintiffs' Motion
for Class Certification [Dkt. No. 192], and on September 26, 2014,
granted Defendants' Motion for Partial Summary Judgment on their
statute of limitations defense [Dkt. No. 194] . At the Court's
request, the parties filed a Joint Status Report on October 24,
2014, listing the remaining claims as well as those Plaintiffs
whose claims should be dismissed in their entirety [Dkt. No. 199].
On November 19, 2014, Plaintiffs filed a Rule 54(b) Motion for
Modification or Clarification of the Court's Partial Summary
Judgment opinion [Dkt. No. 203]. The Court denied Plaintiffs' Rule
54(b) Motion on February 9, 2016 [Dkt. No. 237].
On February 27, 2015, Defendants filed the present Motion to
Dismiss on Jurisdictional Grounds ("Motion") [Dkt. No. 217].
Plaintiffs filed their Opposition on August 3, 2015 ("Opp' n") [Dkt.
No. 229] , and Defendants filed their Reply on October 9, 2015
("Reply") .
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II. LEGAL STANDARD
A. Standard of Review under Fed. R. Civ. P. 12(b} (1)
As courts of limited jurisdiction, federal courts possess
only those powers specifically granted to them by Congress or
directly by the U.S. Constitution. Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). The plaintiff bears the
burden of establishing by a preponderance of the evidence that the
Court has subject matter jurisdiction to hear the case. See Shuler
v. United States, 531 F.3d 930, 932 (D.C. Cir. 2008). In deciding
whether to grant a motion to dismiss for lack of jurisdiction under
Rule 12 (b) (1), the court must "accept all of the factual
allegations in [the] complaint as true [.]" Jerome Stevens
Pharmaceuticals, Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-54
(D.C. Cir. 2005) (internal quotation marks omitted) (citing United
States v. Gaubert, 499 U.S. 315, 327 (1991)). "[W]here necessary,
the court may consider the complaint supplemented by undisputed
facts evidenced in the record, or the complaint supplemented by
undisputed facts plus the court's resolution of disputed facts."
See Herbert v. Nat'l Acad. Of Sciences, 974 F.2d 192, 197 (D.C.
Cir. 1992).
B. Standing
Article III of the Constitution limits the jurisdiction of
federal courts to certain "Cases" and "Controversies." See U.S.
Const. art. 3, § 2. " [N] o principle is more fundamental to the
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judiciary' s proper role in our system of government than the
constitutional limitation of federal-court jurisdiction to actual
cases or controversies." Clapper v. Amnesty Int'l USA, 133 S. Ct.
1138, 1146 (2013) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 341, (2006)). "One element of the case-or-controversy
requirement is that plaintiffs must establish that they have
standing to sue." Id. (internal quotation marks and citation
omitted).
" [T] he irreducible constitutional minimum of standing
contains three elements. First, the plaintiff must have suffered
an injury in fact . . . which is (a) concrete and particularized,
and (b) actual or imminent, not conjectural or hypothetical.
Second, there must be a causal connection between the injury and
the conduct complained of Third, it must be likely, as
opposed to merely speculative, that the injury will be redressed
by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992) (internal quotation marks, citations, and
footnote omitted) .
Plaintiffs seeking prospective injunctive or declaratory
relief as to future acts must demonstrate that harm resulting from
such acts is "'actual or imminent, not conjectural or hypothetical
. Past exposure to illegal conduct does not in itself show
a present case or controversy regarding injunctive relief . . . if
unaccompanied by any continuing, present adverse effects.'" City
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•.
of Los Angeles v. Lyons, 461 U.S. 95, 102-03 (1983) (quoting O'Shea
v. Littleton, 414 U.S. 488, 495-96 (1974)). Past wrongs have a
bearing on whether there is a real and immediate threat of future
injury. Id.
c. Mootness
"Simply stated, a case is moot when the issues presented are
no longer live or the parties lack a legally cognizable interest
in the outcome." County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969))
(internal quotation marks omitted). The doctrine of mootness is
premised upon the notion that " [a] federal court is
constitutionally forbidden to render advisory opinions or 'to
decide questions that cannot affect the rights of litigants in the
case before them.' " Better Gov't Assoc. v. Dep't of State, 780
F.2d 86, 90-91 (D.C. Cir. 1986) (quoting North Carolina v. Rice,
404 U.S. 244, 246 (1971)).
A defendant's voluntary cessation of a challenged practice
moots a case only if the defendant shows that "(1) there is no
reasonable expectation that the alleged violation will recur and
(2) 'interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation.'" Reeve Aleutian
Airways, Inc. v. United States, 889 F.2d 1139, 1142-43 (D.C. Cir.
1989)) (quoting County of Los Angeles, 440 U.S. at 631). This
burden "is a heavy one." Reeve Aleutian Airways, 889 F.2d at 1143.
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III. ANALYSIS
Defendants address their challenges to Plaintiffs' remaining
claims in three categories, each of which mirror the categories in
the Parties' Joint Status Report Identifying Remaining Claims
filed with the Court on October 14, 2014 [Dkt. No. 199]. The
categories are: (1) Plaintiffs' "as applied" challenges to alleged
Chaplain Corps personnel policies or practices; (2) Plaintiffs'
"as applied" challenges to alleged conditions of hostility and
bias in the Chaplain Corps; and (3) Plaintiffs' challenges to
alleged ad hoc actions against certain Plaintiffs. Mot. at 3. The
Court will address each category in turn.
As an initial matter, Plaintiff Chaplaincy of Full Gospel
Churches ("CFGC") did not respond to Defendants' Motion and has
therefore conceded these arguments. See F.D.I.C. v. Bender, 127
F.3d 58, 67 (D.C. Cir. 1997). CFGC's counsel, who is also counsel
for AGC and the individual Plaintiffs, moved to withdraw his
appearance as counsel for CFGC on March 19, 2015 [Dkt. No. 220],
and this Court granted the motion the following day. See Order
Granting Motion to Withdraw [Dkt. No. 221]. No other counsel has
been entered on behalf of CFGC. Therefore, Defendants' Motion to
Dismiss is granted with regard to CFGC's claims.
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..
A. "As Applied" Challenges to Alleged Personnel Policies or
Practices
Plaintiffs challenge several of the Navy's alleged policies
or practices relating to accession, personnel management,
promotions, and career transition. The Navy has not, at this time,
moved to dismiss policies relating to aspects of the promotion and
early retirement selection board process, but seeks dismissal of
other claims for lack of standing and mootness, as well as for
being time-barred. Mot. at 7-8.
1. Faith Group Accession Goals
As mentioned previously, accession refers to the process by
which an individual becomes a member of the Chaplain Corps. "The
accession process includes recruitment, processing [,] and
swearing-in to the military service." Opp' n at 34. Plaintiffs
allege that from 1986 until 2001 or 2002, the Navy maintained a
so-called "Thirds Policy" 1 under which it reserved thirty-five
percent of chaplain accessions for Liturgical Protestants, thirty-
five percent for "Non-liturgical faith groups," and thirty percent
for "Others," which included Catholics. Mot. at 35-36; Consol.
Compl. ,, 33, 35.
1The Court dismissed Plaintiffs' claim regarding the Thirds Policy
for lack of subject matter jurisdiction in 2014. See In re Navy
Chapiaincy, No. 7-269, 2014 WL 4378781, at *6-9 (D.D.C. Sept. 4,
2014) .
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While Defendants dispute that such a policy ever existed,
they argue that since 2001, "the Navy has accessed chaplain
candidates on a best-qualified basis, without any consideration of
religious affiliation." Mot. at 8. Plaintiffs deny that the Navy's
current practice is faith neutral. Opp'n at 37. Plaintiffs contend
that the Navy's accession policy is unconstitutional because any
faith group or denominational goals are not based on the Navy's
"free exercise needs" (the denominational make-up of the Navy's
service members), resulting in arbitrary "denominational
preferences." Consol. Compl. ~~ 68-70. Therefore, according to
Plaintiffs, "[t]he accession system is not narrowly tailored to
achieve the CHC's constitutional purpose and is nothing more than
a federal jobs program for clergy." Id. ~ 70.
First, Defendants argue that every individual Plaintiff has
successfully accessed into the CHC, and therefore not a single
Plaintiff has suffered an injury due to the alleged accession
policy. Without an injury, there cannot be standing to challenge
the alleged policy. Mot. at 9. Plaintiffs do not deny that the
individual Plaintiffs were not harmed directly by the policy. See
Opp' n at 41. Rather, Plaintiffs argue that "the CHC' s
denominational preference produces twin messages of preference and
prejudice" and argue that the policies are "part of the culture of
prejudice." Id.
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This argument does not suffice to show injury or standing.
Plaintiffs do not show how the alleged messages of preference and
prejudice cause injury that is "(a) concrete and particularized,
and (b) actual or imminent, not conjectural or hypothetical."
Lujan, 504 U.S. at 560-61. Plaintiffs' allegation of a culture of
prejudice and bias is a separate claim and will be analyzed later
in this Opinion. See infra, Section III.B.
Second, Defendants argue that the organizational Plaintiffs
CFGC and Association of Gospel Churches ( "AGC") fail to demonstrate
standing, either on their own behalf or in a representative
capacity. See Mot. at 11-15. An organization may have standing to
bring a cause of action on either its own behalf (sometimes
referred to as "organizational standing") or on behalf of its
members ("associational standing"). Warth v. Seldin, 422 U.S. 490,
511 (1975); People for the Ethical Treatment of Animals v. U.S.
Dep't of Agric., 797 F.3d 1087, 1099 (D.C. Cir. 2015).
For an organization to have standing on its own behalf, it
must meet the standard requirements of injury-in-fact, causation,
and redressability. Havens Realty Corp. v. Coleman, 455 U.S. 363,
379 (1982). In other words, the Court must ask whether the
organization itself has "alleged such a personal stake in the
outcome of the controversy as to warrant [its] invocation of
federal-court jurisdiction." Id. (internal quotation marks and
citations omitted). "A conflict between the defendant's conduct
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and the organization's objectives is not enough to establish
standing; the organization must allege that discrete and
programmatic concerns are directly [a]ffected by the defendant's
conduct." CFGC, No. 99-2945, Memorandum Opinion at 8 [Dkt. No. 30]
(citing Nat'l Treasury Emp. Union v. United States, 101 F.3d 1423
(D.C. Cir. 1996). The asserted injury must be "concrete and
demonstrable," rather than "simply a setback to the organization's
abstract social interests." Havens Realty Corp., 455 U.S. at 379.
AGC asserts that it has standing because CHC's "policies and
practices which reject AGC candidates (and also impact [] AGC
promotions . .) impair and in fact preclude AGC's ability to
represent its member churches to the military, causing injury to
AGC." Opp'n at 39. "AGC's mission is to represent its member
churches to the military by seeking and endorsing qualified
candidates to the chaplaincy and supporting them in their continued
representation once they are on active duty or in the reserves."
Opp'n at 38-39.
In 2000, Judge June Green ruled in CFGC (which was later
consolidated with Adair and Gibson to form the present case) that
CFGC did not have standing on its own behalf. CFGC Mem. Op at 10.
CFGC had characterized its primary function as the sponsorship of
clergy. Id. CFGC also claimed that it had to "divert sizable
resources to minimize the effects of the Defendants' alleged
discrimination, becoming a counselor and employment agency for
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CFGC Navy chaplains." Id. at 9. The Court found that providing
such assistance to the chaplains was tangential to CFGC's primary
function and that Defendants' alleged discriminatory activity was
"not at 'loggerheads' with the group's mission." Id. at 10.
Therefore, the Court concluded that CFGC had not suffered injury
in fact. Id.
Plaintiffs have not shown how AGC is different from CFGC, nor
have they explained why this Court's prior holding is not also
applicable to AGC. AGC's only attempt to distinguish itself from
CFGC is its claim that CFGC did not name specific candidates who
were rejected, while AGC has. Opp'n at 40. This distinction does
not touch on the core dispute: whether AGC' s "discrete and
programmatic concerns are directly [a] ffected by" CHC' s alleged
discrimination. CFGC Mem. Op. at 8. Consequently, AGC's
identification of specific members who were rejected is more
appropriately considered in the associational standing analysis.
For these reasons, the Court finds that AGC does not have standing
to sue on its own behalf.
An organization has associational standing when: "(1) 'its
members would otherwise have standing to sue in their own right;'
(2) 'the interests it seeks to protect are germane to the
organization's purpose;' and (3) 'neither the claim asserted nor
the relief requested requires the participation of individual
members in the lawsuit.'" Ctr. for Sustainable Econ. v. Jewell,
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779 F.3d 588, 596 (D.C. Cir. 2015) (quoting Hunt v. Wash. State
Apple Adver. Comm'n, 432 U.S. 333, 343 (1977)). Defendants argue
that CFGC and AGC fail to satisfy the first and third prongs.
Defendants contend that AGC has failed to identify "at least
one specifically-identified member" who has suffered an injury-
in-fact. Mot. at 14 (quoting American Chemistry Council v. Dep't
of Transportation, 468 F.3d 810, 820-21 (D.C. Cir. 2007)). In
response, Plaintiffs submit the Declaration of Captain Steven D.
Brown, the current President of AGC ("Brown Deel.") , Dkt. No. 227-
16, who identifies several individuals that AGC endorsed but were
rejected by CHC. See e.g., Brown Deel. ~ 11 (discussing the
unsuccessful applications of Isaac Toliver and James Block) .
Although Plaintiffs have identified certain individuals who
were unsuccessful in their applications to join the Chaplain Corps,
at no point does the Brown Declaration or the Opposition allege
that the individuals were unsuccessful as a result of the alleged
faith group accession policies that are at issue. Therefore, while
Plaintiffs have shown that the individuals they identify may have
suffered an injury, they have not alleged causation sufficient for
the Court to find that the individuals would have standing in their
own right. AGC fails to satisfy the first prong of associational
standing. 2
2 Because the Court finds that AGC lacks associational standing
due to the first prong of the test -- "its members would otherwise
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For the aforementioned reasons, the Court holds that neither
the individual Plaintiffs nor the organizational Plaintiffs have
standing to challenge the Navy's faith group accession goals.
2. Staffing of CARE Boards
Count 2 of the Consolidated Complaint alleges that the Navy
had "an unconstitutional religious hierarchy and preference
system" which it implemented through denominational and FGC goals.
Consol. Compl. ~~ 40-63. One sub-allegation of Count 2 is that the
Navy used "a set of favored denominations for its [Chaplain
Appointment Recall and Eligibility ("CARE")] Board memberships who
tended to approve those most like themselves and reject or limit
those not like themselves." Id. ~ 44(g).
Insofar as the~ 44(g) claim is limited to the period of the
alleged Thirds Policy, Defendants argue this claim is moot and
should also be dismissed for lack of standing. Mot. at 16. Should
the scope of the claim be construed to apply post-2001, Defendants
also argue that it should be dismissed for lack of standing, as
neither the individual Plaintiffs nor the organizations have
have standing to sue in their own right" -- it need not reach the
third prong - - "neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit."
The Court does note, however, that Plaintiffs' only response to
Defendants' challenge relative to the third prong was to summarily
state that"' [n]either the claim asserted nor the relief requested
requires the participation' of either AGC candidates or chaplains
in this lawsuit." Opp' n at 41. By failing to address the substance
of Defendants' contentions, Plaintiffs have conceded Defendants'
argument that AGC fails to satisfy the third prong.
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standing. Id. Plaintiffs fail to reply to either of Defendants'
mootness or standing arguments, and have therefore conceded them.
Accordingly, the claim associated with~ 44(g) is dismissed.
3. CARE Board Procedures
Counts 3 and 4 of the Consolidated Complaint challenge, inter
alia, the procedures employed by the CARE Boards. Consol. Compl.
~~ 71, 81-84. These procedures allegedly "grant unlimited
discretionary power to chaplains with no accountability and no
effective guarantees [that] the power will be used for neutral,
secular and non-ideological purposes." Id. ~ 82. To the extent
this claim is applicable to the time period of the alleged Thirds
Policy, Defendants argue that the claim fails for mootness and
lack of standing, and to the extent it applies post-2001,
Defendants argue it fails for lack of standing. Mot. at 1 7.
Defendants' lack of standing argument mirrors its prior arguments
in Sections A.l and A.2, namely that individual plaintiffs lack
any injury and organizational plaintiffs lack direct or
representational standing. Id.
Plaintiffs fail to respond to Defendants' arguments and the
Court finds that they have been conceded. Therefore, the Court
dismisses Plaintiffs' claim regarding CARE Board policies found in
Counts 3 and 4.
- 20 -
4. Former Alleged Recruiting Policy
Count 15 of the Consolidated Complaint challenges an alleged
recruiting policy under which chaplains were required to speak
positively about the Chaplain Corps. See Consol. Compl. ~~ 207-
1 7. Plaintiffs allege that the policy was implemented via two
directives issued in 2001. Id. ~ 212. Plaintiffs refer to the
policy as a "former policy" and discuss it in the past tense,
although Plaintiffs do not state when the policy ceased to be in
effect. Id. ~~ 207-217. Plaintiffs allege that the purpose of the
policy was to "maintain the current irrational and
disproportionate chaplain imbalance which plaintiffs allege
constitutes an endorsement of religion forbidden by the
Establishment Clause," and in addition, that it censored
Plaintiffs' speech. Id. ~~ 213(b), 216.
Defendants argue that Plaintiffs have failed to identify a
single plaintiff who has ever been affected or injured by the
alleged policy, or how this Court could redress such an injury,
and that as a result, Plaintiffs lack standing. Mot. at 18-19. In
response, Plaintiffs fail to identify any specific Plaintiffs who
were harmed by the al.leged policy. Instead, Plaintiffs argue,
without citation, that "[i]t is Black Letter Law a plaintiff need
not wait until he is injured to challenge a policy unconstitutional
on its face." Opp'n at 42. This is directly contrary to Supreme
Court precedent stating that "the irreducible constitutional
- 21 -
minimum of standing contains three elements," where the first
element is an "injury in fact . which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or
hypothetical." Lujan, 504 U.S. at 560-61 (internal quotation
marks, citations, and footnote omitted).
Plaintiffs also posit that if any "CHC policy violates the
Establishment Clause and a plaintiff is subject to that policy,
their Establishment Clause rights have been violated," Opp' n at
42, apparently suggesting that injury is automatic if a plaintiff
is subject to an allegedly unconstitutional policy. Plaintiffs
rely on Chaplaincy of Full Gospel Churches v. England ("CFGC") in
support of this theory. 454 F.3d 290, 304 (D.C. Cir. 2006). In
that case though, our Court of Appeals was discussing irreparable
injury for purposes of preliminary injunction analysis, not
standing. Indeed, the Court of Appeals commented in a footnote
that the "conclusion presupposes . that the party has standing
to allege such a violation." Id. at 304 n.8.
Plaintiffs have failed to identify any plaintiffs who were
injured by this alleged policy and to identify any injuries that
were suffered. In addition, Plaintiffs have failed to respond to
Defendants' redressability argument. Accordingly, Plaintiffs do
not have standing to challenge the alleged recruiting policy
requiring chaplains to speak positively of the Chaplain Corps and
their claim is dismissed for lack of jurisdiction.
- 22 -
5. Alleged Use of Faith Group Categories in Personnel
Management and Staffing Decisions
In Count 1 of the Consolidated Complaint, Plaintiffs
challenge the Navy's categorization of Faith Group Categories.
Plaintiffs allege that the parameters of the FGCs, in which the
Roman Catholic FGC has only one denomination while the "Non-
Liturgical Protestant" FGC contains a wide spectrum of
denominations, are arbitrary and capricious. Consol. Compl. ~ 36.
The classification allegedly facilitates religious favoritism
toward some groups and "hides the CHC' s bias against the Non-
liturgical faith groups (and other conservative liturgical faith
groups) in accessions, promotions, career opportunities,
assignments, and retentions." Id. ~ 37.
Defendants argue that Plaintiffs have not shown that they
have standing to challenge the FGCs because they have demonstrated
neither injury nor redressability. Mot. at 20. Plaintiffs respond
that the Court has jurisdiction over the challenge, but fail to
explain why, omitting any discussion of standing, injury, or
redressability. Plaintiffs have again conceded this argument and
the Court finds that they lack standing to challenge the
categorization and use of FGCs.
6. Alleged Dual Systems of Discipline and
Administration
Count 7 of the Consolidated Complaint alleges that the Navy
has created an unconstitutional culture of hostility toward Non-
- 23 -
liturgical chaplains. Consol. Compl. ~~ 141-152. In furtherance of
that culture, Plaintiffs allege that the Navy has established two
systems of discipline: one for Liturgical traditions and a second,
harsher system for Non-liturgical traditions. Id. ~ 148. In the
Consolidated Complaint, Plaintiffs provide three examples of
individual Plaintiffs who were harmed by the alleged dual systems
of discipline. Id. ~ 148(a)-(c) (discussing claims of plaintiffs
Thompson, Tostenson, and Klappert) .
Defendants argue that the claims of the three Plaintiffs who
have alleged harm under the dual-disciplinary systems are time-
barred, and that Plaintiffs also lack standing. This Court has
previously held that the six-year statute of limitations of 28
u.s.c. § 2401(a) is applicable in this case and has asked the
parties to submit a list of individuals whose claims, as a result,
are time-barred. See In re Navy Chaplaincy, F. Supp. 3d 249 (D.D.C.
2014) (Memorandum Opinion granting Defendants' Motion for Partial
Summary Judgment) .
On October 24, 2014, the Parties submitted a list of
individual Plaintiffs whose claims should be dismissed. See Dkt.
No. 199. Plaintiffs Thompson and Tostenson, who were part of the
Gibson case filed in 2006, were on that list, and Plaintiffs have
offered no argument that their claims are not time-barred. While
Plaintiff Klappert was not included on that list, all activities
relating to him that are alleged in the Consolidated Complaint
- 24 -
appear to have occurred before April 28, 2000, the statute of
limitations cut-off for the Gibson plaintiffs. Defendants argue
that Klappert's dual-disciplinary-systems claim is therefore time-
barred, and Plaintiffs do not dispute it.
In their Opposition, Plaintiffs mention four other individual
Plaintiffs who allegedly suffered harm under the dual-disciplinary
system. Opp'n at 43-44. However, nothing in the Consolidated
Complaint suggests that these Plaintiffs ever encountered the
Navy's disciplinary system nor do Plaintiffs specify any injury-
in-fact suffered by these individuals. Id. at 44. The only harm
discussed is that Liturgical and Catholic chaplains, who had been
disciplined in the past for reasons unrelated to Plaintiffs,
retaliated against Plaintiffs due to their religion. Id. Such harm
flows from retaliation, not the Navy's disciplinary system.
In sum, there are no remaining Plaintiffs who claim to have
been injured under the alleged dual-disciplinary systems. The
claims of the three individual Plaintiffs mentioned in the
Consolidated Complaint are time-barred, and the remaining
Plaintiffs have fai'led to allege any injury for purposes of
standing. In addition, Defendants argue that Plaintiffs have not
satisfied the causation and redressability prongs of standing, and
Plaintiffs failed to respond to this argument in their Opposition,
thereby conceding it. See Mot. at 23-24; Opp'n at 43-44.
- 25 -
Plaintiffs' claims regarding an unconstitutional dual-disciplinary
system are dismissed.
7. SECNAVINST 1730.7C
Count 9 of the Consolidated Complaint alleges that Secretary
of the Navy Instruction 1730.7C ("SECNAVINST 1730.7C"), which was
issued on February 21, 2006, "unconstitutionally established a
Navy religion by defining acceptable and unacceptable religious
words and concepts for chaplains to speak at ceremonies or other
public events." Consol. Compl. ~ 167. SECNAVINST 1730. 7C was
rescinded and replaced by SECNAVINST 1730.7B in August 2006, and
SECNAVINST 1730.7B has since been superseded by
SECNAVINST 1730.7D. See Mot. at 25.
Defendants argue that no remaining Plaintiffs claim to have
been injured by SECNAVINST 1730.7C, and therefore none have
standing to challenge it. Id. In addition, Defendants argue that
any claims for prospective relief are moot, as the policy has not
been in effect for almost ten years. Id.
In response to the Navy's argument, Plaintiffs state that
numerous individual Plaintiffs, including chaplains De Marco,
Rush, Stewart, Thyrion, and Wilder, have reported "being penalized
by the CHC's underlying hostility to Plaintiffs' religious speech
which 1730.7C formalized as an official policy." Opp'n at 45.
Because the Parties have already agreed that Thyrion's claims are
time-barred, the Court need not consider them here. See Joint
- 26 -
Status Report Identifying Remaining Claims and Individual
Plaintiffs Whose Claims Should Be Dismissed at 5 [Dkt. No. 199).
Plaintiffs' opposition suffers from a logical flaw: Even if
SECNAVINST 1730. 7C supported this hostility toward Plaintiffs'
religious speech, it does not logically follow that therefore all
harm suffered as a result of hostility toward religious speech was
also a result of SECNAVINST 1 73 O. 7C. Contentions that the Navy
interfered with the above named chaplains' religious speech are
not sufficient to show injury as a result of SECNAVINST 1730.7C.
Plaintiffs have not stated that any of the chaplains were harmed
by SECNAVINST 1730.7C, and indeed the facts suggest that most of
them had already separated from the Navy at the time of SECNAVINST
1730.7C's implementation. See e.g., Consol. Compl., Addendum 1 ~
49 (Rush joined Air Force Reserve in 1996); Id. ~ 61 (Wilder non-
selected in 1999 and 2000 and was forced to retire due to failure
of selections); Id. ~ 10 (suggesting De Marco retired in or around
1998) .
AGC also challenges, "on behalf of its chaplains, the Navy's
failure to provide effective guarantees the policy will not be
reinstituted." Opp'n at 45. AGC fails to show that it has standing
in its own right or that its members have standing so as to provide
a foundation for representational standing.
Plaintiffs also state that the Navy has failed to meet the
criteria for the voluntary cessation doctrine, but do not explain
- 27 -
how or why. Voluntary cessation of a challenged practice moots a
case only if (1) "there is no reasonable expectation . . that
the alleged violation will recur," and ( 2) "interim relief or
events have completely and irrevocably eradicated the effects· of
the alleged violation." Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C.
Cir. 2008) (quoting Los Angeles County v. Davis, 440 U.S. 625, 631
(1979)).
Plaintiffs do not allege that the Navy is even likely to
consider reinstatement of SECNAVINST 1730.7C. "[T]he mere power to
reenact a challenged [policy] is not a sufficient basis on which
a court can conclude that a reasonable expectation of recurrence
exists. Rather, there must be evidence indicating that the
challenged [policy] likely will be reenacted." Id. (emphasis
added) (quoting Nat'l Black Police Ass'n v. District of Columbia,
108 F.3d 346, 349 (D.C. Cir. 1997)). Plaintiffs have offered no
such evidence.
With regard to the second prong of the test, Plaintiffs have
alleged no ongoing effects of SECNAVINST 1730.7C. AGC challenges
the Navy's failure to provide a guarantee that the policy will not
be reinstated, but an injunction or order by this Court declaring
SECNAVINST 1730.7C illegal "would accomplish nothing--amounting to
exactly the type of advisory opinion Article III prohibits." Id.
Larsen prohibits such an advisory declaration.
- 28 -
\~.
For the foregoing reasons, the Court concludes that
Plaintiffs lack standing to challenge SECNAVINST 1730.7C and also
finds the Plaintiffs' SECNAVINST 1730.7C claims to be moot.
8. Alleged Policy Requiring a "General Protestant
Service"
Count 10 of the Consolidated Complaint alleges that "the Navy
has historically tried to establish[] a de facto liturgical or
'high church' 'General Protestant' religion," in violation of the
First Amendment of the United States Constitution. Consol. Compl.
~ 173. Plaintiffs allege that the Navy had a policy mandating
liturgical "General Protestant" services, to the detriment of Non-
liturgical personnel. Id.
Defendants argue that this claim fails for lack of standing.
Mot. at 26-30. In addition, Defendants also argue that the factual
allegations fail to suggest that a policy existed, and instead
reflect situation-specific decisions by Navy command. Id. 26-27.
Plaintiffs do not contend that the Navy promulgated an official
policy. Instead, they allege that the facts, taken together, are
indicative of a de facto policy. Consol. Compl. ~ 173. Whether
such an unofficial policy exists is an issue of fact. In a motion
to dismiss, the Court must "accept all of the factual allegations
in [the] complaint as true [.] " Jerome Stevens Pharmaceuticals,
Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005)
- 29 -
(internal quotation marks omitted) (citing United States v.
Gaubert, 499 U.S. 315, 327 (1991)).
Defendants state that no Plaintiff alleges any actual injury
attributable to the alleged policy, and therefore Plaintiffs lack
standing. Id. at 27. Plaintiffs state that the injury occurs when
a chaplain is forced to conduct a service contrary to his theology,
in violation of the First Amendment. Opp'n at 45. Plaintiffs also
provide examples of two chaplains who suffered adverse career
consequences, one as a result of his refusal to perform a
Liturgical service and the other as a result of "his emphasis on
Christ. /1
Id. at 45-46. Defendants do not deny the injuries as such,
but focus on their contention that no policy existed. The Court
finds that Plaintiffs have sufficiently establishing an injury for
purposes of standing. 3
Defendants also argue that Plaintiffs have not shown
redressability for this claim. Specifically, Defendants state that
Plaintiffs allege "no adverse action that might conceivably be
redressed through an award of remedial relief, and there is no
basis for prospective relief on these allegations given their
command-specific nature. /1
Mot. at 29-30. The latter half of
3 Defendants state that the specific incidents underlying the
claims of three of the Plaintiffs - Belt, Wilder, and Bailey -
occurred outside of the applicable limitations period. Mot. at 29.
Plaintiffs do not refute it and have therefore conceded this
argument. Accordingly, the Count 10 claims of Plaintiffs Belt,
Wilder, and Bailey are dismissed.
- 30 -
Defendants' argument relies on a finding that the alleged actions
are command-specific, rather than indicative of Navy policy, which
is a factual finding ill-suited for a motion to dismiss.
Despite the weakness of Defendants' argument, Plaintiffs
provide the Court with no guidance as to what relief, either
prospective or remedial, could address their claim. The entirety
of Plaintiffs' redressability response is that the "Court can
provide a remedy to those injured by their Liturgical superiors or
the CHC' s indifference." Opp' n at 46. Such an assertion lacks
specificity and is too general to establish redressability. For
the foregoing reasons, the Court finds that, although Plaintiffs
have shown an injury-in-fact, they have not shown redressability
and therefore do not have standing to challenge the alleged policy
requiring a Protestant service.
9. Alleged Policy of Reserving Key Billets for other
Faith Group Categories
Count 2 of the Consolidated Complaint contains several sub-
claims, including the claim that the Navy had a policy and practice
of reserving "key" billets - defined by Plaintiffs as the 15 key
decision-making positions - for Protestant and Catholic chaplains.
Consol. Compl. ~~ 54-63; see also Capt. Larry Ellis Memorandum to
Chief of Chaplains, January 25, 1995 ("Ellis Report") [Dkt. No.
135-14] .
.., 31 -
Defendants argue that Plaintiffs have provided no evidence
supporting the existence of a policy. Mot. at 30. Defendants also
argue that this claim fails for lack of standing, as Plaintiffs
have shown neither injury-in-fact nor redressability. Id.
Plaintiffs have not identified any chaplains who were eligible for
the key billets but were denied the positions, nor have they
explained how the Court could provide prospective or remedial
relief. Id. at 33-34.
Plaintiffs failed to respond to Defendants' standing
arguments, and have therefore conceded them. Accordingly,
Plaintiffs' claim challenging an alleged Navy policy reserving key
billets for certain faith groups is dismissed for lack of standing.
10. Alleged Practices Concerning the Recall of Certain
Chaplains
Count 5 challenges the Navy's alleged policy giving
preference to Catholics and Liturgical chaplains when selecting
Navy Reserve chaplains for recall. Consol. Compl. ~~ 123-31; see
also id. ~~ 46, 101 (similar claims interspersed in Counts 2
and 4). Defendants deny that such a policy or pattern ever existed,
noting that Plaintiffs identify only four such recalls. Mot. at
35. Defendants also contend that Plaintiffs have not shown injury
as a result of the recalls or the recall policy, nor have they
shown redressability.
- 32 -
\
Defendants state that none of the remaining forty-one
Plaintiffs have alleged that he or she has suffered harm from the
recall of a Roman Catholic or Liturgical chaplain from Reserve
duty. Id. at 36. To the extent that Plaintiffs might allege that
the harm results from a message of preference, Defendants argue
that our Court of Appeals' decision in 2008 has foreclosed such an
argument. Id. at 37 (citing In re Navy Chaplaincy, 534 F.3d 756
(D.C. Cir. 2008)). In that case, the Court held that such a
message, unaccompanied by actual employment discrimination, was
insufficient to satisfy the injury-in-fact element of standing. In
re Navy Chaplaincy, 534 F.3d at 760, 762-65.
Plaintiffs respond that Defendants' act of "admitting there
was some impact admits there was an injury. /1
Opp' n at 47.
Plaintiffs provide no citation for the proposition that impact is
akin to injury. The test for standing requires an injury, not
merely an impact. See Lujan, 504 U.S. at 560-61. Plaintiffs argue
that there is no de minimis exception to the Establishment Clause,
see id, at 46, but Defendants are not arguing that the injury is
de minimis - they are arguing that there is no injury at all.
Plaintiffs point to Commander Lyle, a Catholic, as an example
of an illegal recall, stating that his recall has affected numerous
promotion opportunities since 2001 and has been "a barrier to being
able to compete for the legally available authorizations. /1
Id.
at 47. Even so, Plaintiffs fail to identify a single plaintiff
- 33 -
whose promotion or recall opportunities were affected by Commander
Lyle's recall. Plaintiffs point to recalled Captains Vieira (a
Liturgical Protestant) and Rock (a Catholic) as "notorious career
destroyers," but do not allege harm stemming from their recall,
let alone which Plaintiffs were harmed. Id. That Vieira and Rock
allegedly used their command positions to harm Plaintiffs does not
mean that the very act of recalling Vieira and Rock caused injury.
In addition to their injury argument, Defendants argue that
Plaintiffs have failed to show how this Court could redress any
injury they might have suffered. Plaintiffs' only response is that
this Court "can devise a remedy to make Plaintiffs affected by
Recalls whole." Opp'n at 47. As previously discussed, such cursory
statements are not sufficient to establish redressability.
Accordingly, the Court finds that Plaintiffs have not satisfied
the injury-in-fact or redressability prongs of standing.
B. "As Applied" Challenges to Conditions of the Chaplain
Corps.
Counts 7 and 8 of the Consolidated Complaint allege that the
Navy has a culture of bias and hostility toward Non-liturgical
chaplains. 4 Consol. Compl. ~~ 141-52 (Count 7), 153-64 (Count 8).
Defendants allege that these counts are broad, vague, and
4 Defendants addressed the alleged culture of bias and the alleged
culture of hostility claims separately, but Plaintiffs responded
to the claims jointly. Given the similarity of the claims,
Defendants' arguments, and Plaintiffs' opposition, the Court will
address them jointly as well.
- 34 -
conclusory, and are not limited to a single "transaction or
occurrence" - -or even a set of transactions and occurrences- -as
required by Federal Rule of Civil Procedure lO(b). Mot. at 38. As
a result of the Counts' conclusory nature and Plaintiffs' failure
to allege discrete actions or policies, Defendants also argue that
Plaintiffs' allegations do not satisfy the injury-in-fact and
redressability requirements of standing. Id.
The thrust of Defendants' argument is that no Plaintiff can
establish that he or she sustained any injury as a result of the
alleged culture of bias and hostility, rather than as a result of
a more specific action or policy. Id. 39-40. For example,
Defendants contend that a chaplain who was non-selected for
promotion would not be injured by an alleged culture of bias, but
by the decision of the selection board. And a chaplain who suffered
retaliation by a supervisor would not be injured by a culture of
hostility, but by the actions of the supervisor. Id. at 40.
Plaintiffs respond by outlining instances of alleged harms
against plaintiffs and other individuals, such as: "religious
persecution and oppression from CAPT Buchmiller" against
chaplains, congregants, civilian volunteers, and chapel workers;
a "racially biased, career ending fitness report" against a non-
Plaintif f individual; the allegation that Captain Young "destroyed
the careers of all evangelicals while unabashedly promoting and
advancing his fellow Catholic chaplains at the expense of [four
- 35 -
Plaintiffs]"; and instances of retaliation. See Opp' n at 51-52.
While these instances of alleged harm, if true, might be
problematic, Plaintiffs fail to show how and what harms stem from
the Navy's "culture." In other words, Plaintiffs do not identify
injuries-in-fact that are a result of the amorphous "culture,"
rather than specific actions.
Plaintiffs also fail to specify what remedies the Court could
provide to any injuries resulting from the alleged cultures of
bias and hostility. Defendants argue that an injunction
prohibiting the continuation of a culture of bias or a declaratory
judgment finding such a culture to be unconstitutional would be
too vague and ill-defined to provide a remedy. Mot. at 40, 43.
Plaintiffs' only responses are two general statements that "[a]
court can remedy Plaintiffs ['] injuries and harms, and protect
AGC's future chaplains from such abuse," Opp'n at 53, and that the
"Complaint describes Plaintiffs' injuries by this culture and the
court can provide a remedy." Opp'n at 55. Such responses offer no
specificity or detail as to the remedies Plaintiffs seek and fail
to substantively respond to Defendants' argument.
The absence of a causal relationship between the injuries
alleged and the alleged culture of bias and hostility, as well as
the failure to identify a single potential remedy that would
redress Plaintiffs' injuries, leads the Court to conclude that
- 36 -
Plaintiffs have failed to establish standing to challenge the
alleged cultures of bias and hostility.
C. Challenges to Ad Hoc Actions Against Certain Plaintiffs
The final category of claims that Defendants challenge
consists of claims alleging ad hoc actions against certain
Plaintiffs. Defendants argue that certain claims fail for
jurisdictional reasons including untimeliness, lack of standing,
and mootness. Mot. at 43.
1. Alleged Failure to Consider Prior Officer Fitness
Reports
Count 4 of the Consolidated Complaint alleges that many
aspects of chaplain selection board systems violate the First and
Fifth Amendments, as well as the Religious Freedom Restoration Act
("RFRA"), 42 U.S.C. § 2000bb et seq. Consol. Compl. ~~ 73-103.
Section D of Count 4 discusses evidence of religious
discrimination in chaplain promotions, including a claim that
promotion board results show a distinct bias and hostility toward
Non-liturgical chaplains with prior military service. Id. ~ 102.
Several Plaintiffs served in the military prior to being
commissioned as chaplains, and as a result, have fitness reports
that predate their tenure as chaplains. See, e.g., Addendum 1 ~ 60
(claims of James Weibling). Plaintiffs' allegation is that the
promotion boards failed to consider fitness reports from
Plaintiffs' military service before they became chaplains. Consol.
- 37 -
Compl. ~ 102. Defendants argue that Plaintiffs lack standing to
bring this claim because they neglect to allege an injury under
the Constitution or RFRA.
The Complaint does not allege that Non-liturgical chaplains
were treated differently than other chaplains with regard to
consideration of prior fitness reports. Mot. at 44; Consol. Compl.
~ 102. According to Plaintiffs' Opposition, 27 Plaintiffs did not
have prior fitness reports considered, which "lays out a disparate
impact claim for the Non-liturgical chaplains and provides the
basis for [Count 4's] Establishment and Due Process claims
concerning the challenged selection board policies and results."
Opp'n at 55. Plaintiffs fail to identify which individuals' prior
fitness reports were not considered and what the resulting injury
was.
Defendants argue that, of the Plaintiffs who allege prior
commissioned service, only two (Rush and Cason) allege any facts
that would suggest they were injured by a failure to consider their
prior fitness reports. Mot. at 45. Plaintiffs do not dispute that
no Plaintiffs other than Rush and Carson allege any supporting
facts, with the sole exception of Plaintiff Weibling. Opp'n at 55-
56.
Plaintiff Carson alleges only that the Navy turned ~her prior
military service into a detriment and liability," which Defendants
argue is too conclusory to be credited as true. Mot. at 45-46
- 38 -
•.
(citing Addendum A ~ 9). In addition to being conclusory, the
allegation that her prior service was a "liability" suggests- -
contrary to Plaintiffs' other allegations--that her fitness
reports were in fact considered.
Similarly, Plaintiff Weibling alleges that the Navy
considered his prior service a liability without further
elaboration. Addendum A~ 60. In their Opposition, Plaintiffs state
that Weibling "was told his small number of CHC fitness reports
was a reason for his non-selection," but provide no citation or
support for this allegation. Opp'n at 56. The Court agrees that
Carson and Weibling's claims are too vague and conclusory to find
an injury-in-fact.
Plaintiff Rush alleges that the Navy "counted his prior line
officer service to place him before the chaplain promotion board,
then disregarded his fitness reports as a line officer .
Because the other chaplains had more reports as chaplains, he was
non-competitive for promotion." Addendum A ~ 49. Unlike Weibling
and Carson, Rush's allegation is detailed and supports Plaintiffs'
claim that prior fitness reports were not considered. However,
there is no information identifying the source of the information
that Rush's prior fitness reports were disregarded.
As evidence of disparate treatment, Plaintiffs point to the
1997 Memorandum for the Chief of Naval Personnel from Captain J.N.
Stafford ("Stafford Report"), Dkt. No. 132-19. The Stafford Report
- 39 -
examined the failure to promote Lieutenant Commander Aufderheide
(who is not a plaintiff) and concludes that the failure to promote
was a result of a discriminatory evaluation by the FY-97 and FY-98
Selection Boards. Id. The Stafford Report includes a Performance
Assessment chart listing the total number of "B" and "C" grades
received by the selectees from both Selection Boards and Lieutenant
Commander Aufderheide.
Two individuals on the Performance Asse.ssment chart have 30
"B" grades--Liturgical chaplains H. Griffith and Alan Baker.
Plaintiffs allege, without any citation, that such a large number
of grades was not possible in Griffith and Baker's time with the
Chaplain Corps alone. Opp'n at 56. Plaintiffs imply that prior
fitness reports for Baker and Griffith must have been considered
in order for them to have 30 Bs, otherwise they would have had
less.
Plaintiffs provide no evidence regarding how long Griffith
and Baker were with the Chaplain Corps and do not explain how they
reached the conclusion that 30 Bs were not possible based on their
tenure with the Chaplain Corps alone. While it is true that most
individuals listed on the Performance Assessment Chart have well
under 30 grades and that those individuals with 30 or more grades
are outliers, without more information or evidence, it is purely
speculative to conclude that this is due to the inclusion of prior
fitness reports.
- 40 -
Even taking as true Rush's allegation that his prior fitness
reports were not considered, Plaintiffs still have not provided
sufficient evidence that the prior fitness reports of Catholic and
Liturgical chaplains were considered, and therefore have not shown
a disparate impact. Plaintiffs' conclusion that the prior fitness
reports of Griffith and Baker were considered is unsupported. Even
if they were considered, Plaintiffs' own pleadings that the prior
service of Carson and Weibling was detrimental to their promotion
prospects suggests that their prior service was in fact considered.
Finally, Defendants argue that Rush's claim is outside the
limitations period, as he was considered for promotion in 1993,
well before the April 28, 2000 cutoff for Adair claims. Plaintiffs
did not respond to this argument and thus, have conceded it.
For all the foregoing reasons, the Court finds that Plaintiffs
have failed to establish an injury-in-fact caused by disparate
consideration of prior fitness reports and therefore lack
standing. In addition, the Court finds Plaintiff Rush's claim to
be time-barred.
2. Alleged Interference with Certain Plaintiffs'
Ministries
Counts 7 and 10 of the Consolidated Complaint have,
interspersed throughout them, allegations of several remaining
Plaintiffs that the Navy interfered with their respective
ministries, in violation of the Establishment, Free Exercise, Free
- 41 -
Speech, and Due Process clauses of the Constitution. Consol. Compl.
~~ 150-52, 162, 174-76. Defendants argue that many of these claims
are time-barred and that Plaintiffs lack standing because they
cannot show injury or redressability. Mot. at 47.
The claims of Plaintiffs Belt and Wilder (Adair) and Plaintiff
Bailey (Gibson) are time-barred, Defendants argue, as they accrued
before their respective March 17, 1994, and April 28, 2000, cut-
offs. Id. at 48. Plaintiffs do not argue otherwise and therefore
the Court dismisses the claims of these three plaintiffs for
interference with their ministries.
For the remaining Plaintiffs, Defendants argue that they have
shown no injury attributable to the alleged interference with their
respective ministries, or how the Court could remedy any injuries.
Mot. at 48. Defendants argue that the remaining Plaintiffs' claims
either do not allege an injury or are too conclusory to establish
standing. Mot. at 48-49.
The Court agrees that Plaintiffs DeMarco and Gordy make no
allegation of interference with their ministries, Addendum A
~~ 10, 18, and that Plaintiff Dufour's statement that his "command
chaplain undermined [his] ministry and career," id. ~ 13, is too
conclusory to support standing. While Plaintiff Stewart says that
he was told he was "not liturgical enough," he does not state that
this interfered with his ministry. Id. ~ 52. In their Opposition,
- 42 -
Plaintiffs do not identify any additional injuries or elaborate on
Plaintiffs' claims. See Opp'n 56-57.
Plaintiffs have failed to identify any Plaintiff who claims
an injury as a result of interference with his or her ministry and
whose claim is not time-barred. Accordingly, Plaintiffs have
failed to establish standing to bring this claim.
3. Alleged Interference with Prayer
Count 9 of the Consolidated Complaint claims that the Navy
discriminates against Non-liturgical chaplains by interfering with
their free speech rights and interfering with their form of prayer.
Consol. Compl. ~~ 165-71. The Consolidated Complaint identifies
six Plaintiffs by name who were allegedly harmed by interference
with their prayers. The claims of two of these Plaintiffs, Johnston
and Thyrion, have already been determined to be time-barred in
their entirety. Mot. at 50 n. 23.
With respect to the four remaining Plaintiffs, Defendants
argue that none of their "allegations of interference suggest the
injury-in-fact or potential redress necessary to bring the
particular claims based on such allegations within the Court's
subject-matter jurisdiction." Mot. at 50. Plaintiffs Belt, Rush,
and Torralva fail to allege any interference whatsoever with their
prayer. Addendum A ~~ 4, 49, 54.
Plaintiff DeMarco alleges that he was criticized for ending
his prayers "in Jesus name." Id. ~ 10. When he continued to pray
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"in accordance with his beliefs and religious tradition . . . the
Liturgical command chaplain rated him in a way that made him non-
competitive for promotion." Id. In DeMarco's deposition testimony,
he stated that, after the fitness report rating him, but prior to
being considered for promotion, he submitted a request for
retirement that was approved. See Deposition of Gregory DeMarco,
Exhibit I, 116-18 [Dkt. No. 217-9] ("DeMarco Dep."). The fact that
he retired prior to consideration of his promotion is evidence,
Defendants argue, that any criticism of his prayer could not have
affected his promotion or his career. Mot. at 51.
Defendants' argument overlooks the fact that the criticism
need not affect his promotion to be injurious to his career.
Indeed, DeMarco states that because he thought the fitness reports
would prevent him from being promoted and that his career was
effectively over, he was motivated to retire. DeMarco Dep. at 118-
19.
Plaintiff Stewart, discussed above in relation to Count 10
(interference with his ministry) , while not named in Count 9
regarding interference with his prayer, does allege that he was
reprimanded for praying "in Jesus' name" and that after concluding
a prayer with "I pray in the name of my Lord and my Savior," he
was relieved of his duties. Addendum A ~ 52. The allegations of
Plaintiffs DeMarco and Stewart are sufficient to show injury as a
result of interference with prayer.
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Defendants also question the Court's ability to redress
Plaintiffs' injuries, but provide no explanation or support for
that argument. See Mot. at 50. In turn, Plaintiffs failed to
respond to it in their Opposition. See Opp'n at 57-58. Given the
paucity of Defendants' argument, the Court is not willing to find
the argument conceded.
The Consolidated Complaint contains several examples of
potential remedies for the alleged injuries Plaintiffs suffered as
a result of interference with their prayers: a Declaration by the
Court that the Navy discriminates against Plaintiffs' free speech;
an injunction requiring the Navy to establish policies and
procedures protecting chaplains' free speech; and specific
remedies to address damage to individual careers. Consol. Compl.
at 115. It is not readily apparent, nor have Defendants provided
any reasons, why the Court would find these remedies to be
inadequate or unfeasible.
For the foregoing reasons, the Court finds that Plaintiffs
have sufficiently alleged injury-in-fact and redressability to
support standing.
D. Portions of Claims of Specific Plaintiffs
Lastly, Defendants argue that the claims of specific
Plaintiffs should be partially or entirely dismissed as time-
barred or for failure to exhaust administrative remedies. Mot. at
51-21.
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1. Statute of Limitations
a. Adair Plaintiff Rush
Adair Plaintiff Rush's claims are based on non-selections by
selection boards convened in 1992 and 1993. Mot. at 53 (citing
Mot. Ex. J, Declaration of David Lanham, Feb. 25, 2015 ("Lanham
Deel.") ~ 18 [Dkt. No. 217-10]). Defendants argue that both of
these non-selections fall outside of the Adair limitations-period
cut-off of March 17, 1994. Plaintiffs counter that Rush "was
discharged on the basis of his failure of selection within the
[statute of limitations]." Opp'n at 60. Plaintiffs do not identify
when precisely Rush was discharged, making it difficult to verify
that his claim is within the statute of limitations. The
Consolidated Complaint states that Rush was non-selected in 1994,
but it does not say when in 1994. Due to the fact that Plaintiffs
have not shown that Rush's claims are within the Adair statute of
limitations period, Rush's non-selection for promotion to
Lieutenant Commander claims are dismissed.
b. Gibson Plaintiffs Deroy, Garner, Johnson,
Jones, Lancaster, Marsh, and Mitchell
Defendants argue that Plaintiffs' challenges to selection
boards up to and including FY 2000 are time-barred because the
boards' decisions were issued prior to the Gibson limitations cut-
off of April 28, 2000. See Mot. at 55-59. The selection boards for
FY 2000 met and issued their decisions in 1999. The earliest non-
time-barred selection boards would therefore be for FY 2001.
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Plaintiffs did not respond to this argument and have therefore
conceded it.
Plaintiff Demy was non-selected for promotion by the FY 2000
through 2009 Captain boards See Addendum A~ 6; Lanham Deel. ~ 5.
His challenge to the FY 2000 selection board is dismissed.
Plaintiff Garner was non-selected for promotion by the FY 2000
through 2003 Lieutenant Commander boards. See Addendum A ~ 16;
Lanham Deel. ~ 7. His challenge to the FY 2000 selection board is
dismissed. Plaintiff Johnson was non-selected for promotion by the
FY 2000 through 2005 Captain boards. See Addendum A ~ 24; Lanham
Deel. ~ 9. His challenge to the FY 2000 selection board is
dismissed. Plaintiff Jones was non-selected for promotion by the
FY 2000 through 2007 Commander boards. See Addendum A~ 26; Lanham
Deel. ~ 10. His challenge to the FY 2000 selection board is
dismissed. Plaintiff Lancaster was non-selected for promotion by
the FY 1998 through 2002 Captain boards. See Addendum A ~ 32;
Lanham Deel. ~ 11. His challenges to the FY 1998-2000 selection
boards are dismissed. Plaintiff Marsh was non-selected for
promotion by the FY 1996 through 2004 Commander boards. See
Addendum A~ 37; Lanham Deel. ~ 13. His challenges to the FY 1996-
2000 selection boards are dismissed. Plaintiff Mitchell was non-
selected for promotion by the FY 2000 through 2002 Commander
boards. See Addendum A~ 39; Lanham Deel. ~ 14. His challenges to
the FY 1996-2000 selection boards are dismissed.
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2. Exhaustion of Administrative Remedies
Defendants argue that the Court lacks jurisdiction over the
non-selection for promotion claims of numerous Plaintiffs because
Plaintiffs failed to exhaust their administrative remedies. As
discussed in Section I. B. , chaplains must be selected for promotion
in rank when the needs of the service require, and if they fail to
select two or more times, they may be subject to selective early
retirement. 10 U.S.C. §§ 611(a), 632. If a person is considered by
a selection board but is not selected for promotion, he or she may
challenge the decision of the selection board pursuant to an
administrative review scheme. 10 U.S.C. § 628. The Secretary of
the Navy is authorized under § 628 to convene a special selection
board ("SSB") if the Secretary determines "that there was material
unfairness with respect to that person." 10 U.S.C. § 628(b) (1). If
the Secretary determines an SSB is warranted, the SSB then
considers the record of the person "as that record, if corrected,
would have appeared to the board that considered him." Id.
§ 628 (b) (2).
On December 28, 2001, a revised version of § 628 became
effective. As revised, a person must exhaust his or her remedies
as set forth in § 628(g) and (h) before a court of the United
States may consider a claim "based to any extent on the failure of
a person to be selected for promotion by a promotion board." 10
u.s.c. § 628 (h).
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Defendants argue that § 628's exhaustion requirement is
jurisdictional, and that any challenge to a decision by a promotion
board made after December 28, 2001, must be dismissed for lack of
subject matter jurisdiction because Plaintiffs did not exhaust
their administrative remedies. Mot. at 52. Indeed, Judge Urbina
has already ruled as much in this very case. See Memorandum Opinion
on Motions to Alter or Amend and Motion for Partial Dismissal
("Partial Dismissal Mem. Op.") , [Dkt. No. 113] ("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 [10 U.S.C.] § 1558 and § 628").
The Sixth Circuit reached the same conclusion in Harkness v. United
States, where it found the exhaustion requirement to be
jurisdictional. 727 F.3d 465, 469-72 (6th Cir. 2013).
Plaintiffs counter that Judge Urbina has twice previously
rejected Defendants' arguments to dismiss their non-selection for
promotion claims. Plaintiffs do not dispute that § 628(h) is
jurisdictional, but rather argue that their claims continue to
fall within the statutory exception, as previously determined in
this case. Opp'n 58-60 (citing Memorandum Opinion Denying
Preliminary Injunction ("Prelim. Injunction Mero. Op.") at 8 [Dkt.
No. 108]). "[U]nder § 1558(g) and § 628(i), a court retains
jurisdiction to review the actions by a selection or promotion
board so long as the claim seeks judicial review of the 'validity
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of any law, regulation, or policy relating to selection boards.'"
Partial Dismissal Mem. Op. at 24 (quoting 10 u.s.c. §§ 1558 (g),
628(i)).
In his first decision addressing this issue, Judge Urbina
held that Plaintiffs' challenges to "the policies used by the Navy
to determine the composition and decision-making of the promotion
boards" fell within the § 628 (i) exception, and therefore the Court
had jurisdiction to review the claims. Prelim. Injunction Mem. Op.
at 8. In the second decision on this issue, Judge Urbina found
that Counts One, Two, and Three of the Gibson Amended Complaint
[6-cv-2102, Dkt. No. 13] challenged the validity of "policies used
by the Navy to determine the composition and guide the decision-
making" of selection boards, and therefore the Court maintained
its jurisdiction over the claims pursuant to the statutory
exception. Partial Dismissal Mem. Op. at 25-26.
Since the time of Judge Urbina's decisions, the case has been
reassigned to the undersigned Judge and Plaintiffs have filed their
Consolidated Complaint, which is now the operative complaint for
the three combined cases. While Judge Urbina's reasoning in the
above decisions is still the law of the case, it is not readily
apparent that the claims Defendants seek to have dismissed are the
same as those claims the Court previously found to be within the
statutory exception. Plaintiffs state that the promotion policies
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challenged previously are the same ones currently being
challenged, see Opp'n at 59.
Defendants' Motion lays out the specific factual allegations
of particular Plaintiffs in detail. Defendants then argue that
resolution of each Plaintiff's claims does not require
consideration of selection board policies and therefore the Court
does not have jurisdiction over their claims. Mot. at 53-54. For
example, Plaintiff Looby claims his non-selection was attributable
to an unfounded rumor that he "had been injured on active duty,
was ineligible for promotion and had performance problems,"
Addendum A ~35. Plaintiff Roman alleges that he was not selected
for promotion because he had sued the Navy over religious
discrimination. Id. ~ 4 7. He also alleges that his failure to
select was due to "the animosity of the CHC leadership against his
endorsing agency, CFGC, and the ability of one board member to
ruin a chaplain's career with no accountability." Id.
While Defendants are correct that adjudication of Plaintiffs'
non-selection claims on these facts alone would not require the
Court to consider the validity of any selection board policies,
these facts are not the only non-selection allegations Plaintiffs
have made. Plaintiffs have also alleged that several selection
board policies and systems are unconstitutional, and that these
policies are common to all Plaintiffs. See e.g., Consol. Compl.
Count 4 (size, staffing, and voting system of selection boards).
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The fact that individual Plaintiffs have alleged additional facts
and theories for their non-selections does not negate their
challenges to the policies.
Since Plaintiffs' non-selection for promotion claims
challenge policies relating to selection boards and therefore fall
within the exception to the exhaustion of administrative remedies
requirement, see 10 U.S.C. § 628 (h), (i), Defendants' Motion to
Dismiss Plaintiffs' non-selection for promotion claims for failure
to exhaust and lack of jurisdiction shall be denied.
IV. CONCLUSION
For the foregoing reasons, Defendants' Motion to Dismiss
shall be granted in part and denied in part. An Order shall
accompany this Memorandum Opinion.
March 16, 2016
Copies to: attorneys on record via ECF
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In Re: Navy Chaplaincy
Court: District Court, District of Columbia
Date filed: 2016-03-16
Citations: 170 F. Supp. 3d 21
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