United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 19-5204 September Term, 2020
FILED ON: NOVEMBER 6, 2020
IN RE: NAVY CHAPLAINCY,
CHAPLAINCY OF FULL GOSPEL CHURCHES, ET AL.,
APPELLEES
ASSOCIATED GOSPEL CHURCHES,
APPELLANT
v.
UNITED STATES NAVY, ET AL.,
APPELLEES
Consolidated with 19-5206
Appeals from the United States District Court
for the District of Columbia
(No. 1:07-mc-00269)
Before: SRINIVASAN, Chief Judge, RAO, Circuit Judge, and GINSBURG, Senior Circuit
Judge.
JUDGMENT
The court considered this appeal on the record from the United District Court for the
District of Columbia and on the briefs and oral argument of the parties. The court afforded full
consideration to the issues presented and determined a published opinion is not warranted. See
D.C. Cir. R. 36(d). For the reasons stated below, it is
ORDERED and ADJUDGED that the judgment of the district court expressed in an
opinion and order issued on August 30, 2018 be AFFIRMED. In that opinion the court denied
the Plaintiffs’ motions to lift a discovery stay and to stay summary judgment pending further
discovery. In addition, the district court denied summary judgment for the Plaintiffs and granted
summary judgment for the Navy on the Plaintiffs’ claims that the Navy’s selection board policies
and procedures violate the First and Fifth Amendments to the Constitution of the United States,
and on their claim that 10 U.S.C. § 613a is unconstitutional as applied to the facts of this case.
The Plaintiffs appealed each of these decisions.
Our review of a district court’s decision to grant or deny a motion for summary judgment
is de novo. Capitol Sprinkler Inspection, Inc. v. Guest Servs., 630 F.3d 217, 223-24 (D.C. Cir.
2011). We review a district court’s ruling on discovery matters under the more deferential abuse
of discretion standard. See, e.g., Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003
(D.C. Cir. 1996).
First, the district court did not abuse its discretion in declining to permit further
discovery. Judge Bates inherited this action in late 2017, nearly two decades after it began. By
the time it reached him, the Plaintiffs had taken extensive discovery, including 25 interrogatories,
136 requests for production, and 17 depositions. Between 2002 and 2009, discovery was open
for over five years net of intermittent stays. The district court was surely correct in concluding
the Plaintiffs had had “ample opportunity” to conduct discovery. See Fed. R. Civ. P.
26(b)(2)(C)(ii).
Second, the district court was right to reject the Plaintiffs’ most recent attempt to evade
the statute that prohibits discovery of selection board proceedings. On appeal, the Plaintiffs have
still “advanced no coherent theory” to explain their assertion that the statute violates the
Constitution simply because discovery of board proceedings might help the Plaintiffs’ case. In
re Navy Chaplaincy 323 F. Supp. 3d 25, 51 (D.D.C. 2018) (quoting Adair v. Winter, 451 F.
Supp. 2d 210, 220 (D.D.C. 2006)).
Third, the district court made no mistake in granting summary judgment for the Navy on
the Plaintiffs’ various First Amendment 1 challenges to its selection board policies. See
Chaplaincy, 323 F. Supp. 3d at 35-36, 55-56. With regard to the claims that certain selection
board policies violated the Establishment Clause, the Plaintiffs had to show each policy had an
unconstitutional effect; that is, the Plaintiffs had to show “the selection policies appear[ed] to
endorse religion in the eyes of a reasonable observer.” In re Navy Chaplaincy, 738 F.3d 425,
430 (D.C. Cir. 2013) (emphasis and internal quotation marks omitted). To prove an endorsement
with statistics, the Plaintiffs had to show a stark disparity in outcomes during the relevant period,
id. at 431, but the statistics they offered came nowhere close to doing so. The Plaintiffs’
alternative argument, an analogy to Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982), is
foreclosed by the law of the case. See In re Navy Chaplaincy, 697 F.3d 1171, 1179 (D.C. Cir.
2012).
It is
1
The Plaintiffs do not press their Fifth Amendment challenges on appeal.
2
FURTHER ORDERED and ADJUDGED that the district court’s opinion and order
dismissing for lack of standing appellant Associated Gospel Churches’ (AGC’s) claim
challenging the Navy’s alleged policy of recruiting chaplains without regard to the Navy’s “free
exercise needs” be REVERSED in relevant part, and that this claim be REMANDED to the
district court for further consideration.
AGC, a chaplain endorsing agency, joined this action in its own right and as a
representative of its members to challenge various aspects of the Navy’s policies and procedures
for accessing and promoting chaplains. In February 2015, the Navy moved to dismiss AGC’s
challenges to its accession policies for lack of standing. AGC implicitly conceded it lacked
standing to pursue most of its accession claims, but argued it had both organizational and
representational standing to attack the Navy’s alleged policy of setting chaplain accession goals
that do not correspond to the “free exercise needs” (i.e., religious demographics) of the Navy. In
2016, the district court held AGC did not have organizational or representational standing to
pursue this claim. In re Navy Chaplaincy, 170 F. Supp. 3d 21, 31-33. Later that year, AGC
abandoned its remaining claims and asked the district court to dismiss AGC from the action so it
could join a Rule 54(b) motion some of the Plaintiffs planned to file.
On appeal, AGC argues it has standing in its own right to challenge the Navy’s faith-
neutral accession goals. 2 We agree. AGC alleged the Navy’s accession goals resulted in AGC’s
chaplain candidates entering the Navy at a significantly lower rate than they otherwise would
have. AGC further alleged, because it relies upon its chaplains for financial support, it loses
money when its ability to find placements for its candidates is hindered. AGC also alleged its
low rate of success placing candidates in the Navy tarnished its reputation. These allegations
satisfy all three elements of standing. We express no opinion on the sufficiency of the
allegations in any other respect. The claim will be remanded to the district court for further
proceedings.
It is
FURTHER ORDERED and ADJUDGED that the district court’s order holding certain
Plaintiffs’ claims untimely under 28 U.S.C. § 2401(a) be VACATED in relevant part and these
claims be REMANDED to the district court for consideration whether equitable tolling applies
to any or all of these claims under a theory of fraudulent concealment.
In 2014, the district court granted summary judgment for the Navy on each claim based
upon policies or personnel actions finalized more than six years before the filing of the
2
AGC forfeited any argument for standing on behalf of its members by failing to develop it beyond a
conclusory recitation of elements. See Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir.
2019) (“A party forfeits an argument by mentioning it only in the most skeletal way” (quotation
omitted)).
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respective suit. Twenty-three Plaintiffs were dismissed from the action as a result.
The Plaintiffs had argued the statute of limitations should be equitably tolled because the
Navy fraudulently concealed its alleged misconduct. The district court rejected this argument
pursuant to then-controlling precedent holding the statute of limitations in 28 U.S.C. § 2401(a) is
jurisdictional, and therefore not subject to equitable tolling. See, e.g., Mendoza v. Perez, 754
F.3d 1002, 1018 (D.C. Cir. 2014) (“We have long held § 2401(a) creates a jurisdictional
condition attached to the government’s waiver of sovereign immunity”) (cleaned up); P & V
Enters. V. U.S. Army Corps of Eng’rs, 516 F.3d 1021, 1026 (D.C. Cir. 2008) (applying this rule).
Shortly thereafter, however, the Supreme Court held equitable tolling is available under §
2401(b), calling our view of § 2401(a) into doubt. United States v. Kwai Fun Wong, 575 U.S.
402 (2015). The Plaintiffs moved for reconsideration, which was denied, as the district court
correctly stated it “remain[ed] bound by Circuit precedent as it currently” stood. While this case
was on appeal, this court overturned our precedent on § 2401(a). Jackson v. Modly, 949 F.3d
763, 776-78 (Feb. 14, 2020) (“[W]e hold that § 2401(a)’s time bar is nonjurisdictional and
subject to equitable tolling”).
Constrained by our former interpretation of § 2401(a), the district court never had
occasion to consider the merits of the Plaintiffs’ fraudulent concealment arguments. The Navy
urges us to decide the issue in the first instance. Appellee’s Br. at 24-25 (citing Liff v. Off. of
Inspector Gen., 881 F.3d 912, 919 (D.C. Cir. 2018) (holding the court of appeals may decide
certain “straightforward legal question[s]” not considered by the district court)). We decline this
invitation. Fraudulent concealment is a fact-bound inquiry, entailing questions such as: “Did the
Navy use some trick or contrivance to conceal the alleged discrimination?”; “Were the affected
Plaintiffs on notice of it regardless?”; and “Did the affected Plaintiffs exercise diligence?”. See
Hobson v. Wilson, 737 F.2d 1, 33-36 (D.C. Cir. 1984). On remand, the district court will
determine whether any claims are to be resurrected due to equitable tolling.
It is
FURTHER ORDERED and ADJUDGED that the judgment of the district court
dismissing certain Plaintiffs’ claims that the Government infringed their First Amendment rights
by allowing chaplains to rate other chaplains is AFFIRMED. The district court correctly held
the Plaintiffs did not state a claim on this point because the relevant allegations were speculative
and implausible. Adair v. England, 183 F. Supp. 2d 31, 60-61 (2002). On appeal, the Plaintiffs
construe this holding as resting on an “irrebuttable presumption” that naval officers always act
with regularity. We disagree with the Plaintiffs’ reading.
To state a claim under the Establishment Clause, the Plaintiffs had to allege either that the
policy failed under Larson v. Valente, 456 U.S. 228 (1982), in that it granted a denominational
preference without narrow tailoring to serve a compelling government interest, or that the policy
failed under the three part test of Lemon v. Kurtzmann, 403 U.S. 602 (1971) (holding a law
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violates the Establishment Clause if its (1) purpose or (2) effect favors a religion, or it creates (3)
excessive entanglement between Government and religion). See Adair, 183 F. Supp. 2d at 47-
49. Allowing chaplains to sit on chaplain selection boards does not create a de jure
denominational preference and does not create excessive entanglement. The purpose of the
policy is innocuous: “Staff corps promotion boards have been traditionally composed of officers
who are members of the same staff corps” because “those in the same profession are more
qualified to evaluate others in their profession.” Id. at 61 (quoting Emory v. Secretary of the
Navy, 708 F. Supp. 1335, 1339 (D.D.C. 1989)) (cleaned up). All that is left is discriminatory
effect, but to believe this policy has a discriminatory effect would require the court to “believe
that the usual rule for a chaplain sitting on a promotion board will be to discriminate.” Id. at 60.
The district court rightly found this conclusion implausible, especially given the Plaintiffs had
only “highly speculative” allegations to support it. Id. at 60-61.
The Clerk is directed to withhold issuance of the mandate until seven days after
resolution of any timely petition for rehearing or rehearing en banc. See Fed. R. App. P. 41(b);
D.C. Cir. R. 41(b).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
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