United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______
Argued March 7, 2008 Decided April 29, 2008
No. 07-5196
CHARLES E. LARSEN, REVEREND, ET AL.,
APPELLANTS
v.
UNITED STATES NAVY AND
DONALD C. WINTER, SECRETARY OF THE UNITED STATES
NAVY,
APPELLEES
_______
Appeal from the United States District Court
for the District of Columbia
(No. 02cv02005)
_______
Arthur A. Schulcz, Sr. argued the cause and filed the
briefs for appellants.
Lewis Yelin, Attorney, U.S. Department of Justice,
argued the cause for appellees. On the brief were Jeffrey S.
Bucholtz, Acting Assistant Attorney General, Jeffrey A.
Taylor, U.S. Attorney, Marleigh D. Dover, Special Counsel,
and Catherine Y. Hancock, Attorney.
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Before: RANDOLPH and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge TATEL.
Opinion concurring in part and concurring in the
judgment filed by Senior Circuit Judge WILLIAMS.
TATEL, Circuit Judge: In this case, three applicants to the
Navy Chaplain Corps allege that the Navy maintained a
religious quota system for choosing chaplains and that under
this system the Navy illegally refused to hire them because
they are non-liturgical Protestants. But because the Navy has
long since eliminated the challenged policy, plaintiffs’
challenge is moot.
I.
To become a Navy chaplain, a person applies to the
Chaplain Accession and Recall Eligibility Board (CARE
Board), which recommends to the Chief of Chaplains whether
to hire the applicant. Plaintiffs Charles Larsen, Gregory
McNear, and James Linzey applied to be Navy chaplains
between 1987 and 2001, but the CARE Board recommended
against hiring them and the Navy rejected all three. During
that time, they allege, the Navy maintained quotas for how
many chaplains it would hire from each of four “faith group
categories.” As we explained in Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290 (D.C. Cir. 2006):
The Navy divides its chaplains into four
categories according to common faith group
characteristics: Catholic, liturgical Protestant,
non-liturgical Protestant, and “special
worship.” “Liturgical Protestant” refers to
Protestant denominations that trace their
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origins to the Reformation, retain an
established liturgy in their worship services,
and practice infant baptism; it includes
Lutheran, Episcopal, Methodist, Presbyterian,
and Congregational faiths. “Nonliturgical
Protestant” refers to Protestant denominations
that do not have a formal liturgy or order in
their worship services, that baptize only those
who have reached the age of reason, and
whose clergy generally do not wear religious
vestments during services; it includes Baptist,
Evangelical, Pentecostal, and Charismatic
faiths.
Id. at 294 (citations omitted). “‘Special worship’ refers to
faith groups, both Christian and non-Christian, that have
‘unique or special needs for their worship and religious
practices’; it includes Jewish, Christian Science, Seventh-Day
Adventist, Mormon, Buddhist, Hindu, Moslem, Jehovah’s
Witness, and Unitarian faiths.” Id. at 295 n.3 (quoting Adair
v. England, 183 F. Supp. 2d 31, 36 (D.D.C. 2002)).
Plaintiffs, all non-liturgical Protestants, allege that until
2001 the Navy had a policy of hiring one-third liturgical
Protestants, one-third non-liturgical Protestants, and one-third
divided between Catholics and adherents of “special worship”
faiths (heavily weighted towards Catholics). According to
plaintiffs, this “Thirds Policy,” as they call it, discriminated
against them because it underrepresented non-liturgical
Protestants in the Chaplain Corps relative to their numbers in
the Navy. The Navy admits that prior to 2001 it “maintained
recruiting goals for each faith group category,” Appellees’ Br.
10, but asserts that since then it has given no consideration to
any applicant’s faith group in making hiring decisions.
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Plaintiffs concede that the Navy “abandoned [its] Thirds
Policy . . . in 2001.” Appellants’ Opening Br. 11.
In 2002, plaintiffs filed suit against the Navy in U.S.
District Court for the District of Columbia, arguing that the
Thirds Policy violated the First Amendment, Fifth
Amendment, and Religious Freedom Restoration Act
(RFRA), 42 U.S.C. § 2000bb et seq. They sought declaratory
and injunctive relief and an order declaring that if they were
hired as Navy chaplains, they should receive “constructive
credit” towards their pay and retirement benefits for the time
they were improperly denied positions.
The district court construed plaintiffs’ claim for
“constructive credit” as a request for money damages and
found it barred by sovereign immunity. See Larsen v. Navy,
346 F. Supp. 2d 122, 128-30 (D.D.C. 2004). It dismissed
plaintiffs’ RFRA claim on a questionable theory advocated by
neither party, holding that RFRA had no application to the
facially discriminatory policy alleged here because the statute
applies only to government actions that are “neutral and
generally applicable.” Id. at 137. The district court later
granted summary judgment for the Navy on plaintiffs’
remaining claims, finding them largely moot but otherwise
unpersuasive. See Larsen v. Navy, 486 F. Supp. 2d 11
(D.D.C. 2007). Plaintiffs now appeal, challenging the district
court’s RFRA, sovereign immunity, mootness, and First
Amendment rulings.
II.
We lack jurisdiction to evaluate the merits of the district
court’s substantive holdings because we find this entire case
moot. “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.
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Davis, 440 U.S. 625, 631 (1979) (quoting Powell v.
McCormack, 395 U.S. 486, 496 (1969)). “Federal courts lack
jurisdiction to decide moot cases because their constitutional
authority extends only to actual cases or controversies.” Iron
Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983).
This case is moot because in their complaint plaintiffs
challenged only the legality of the Navy’s alleged Thirds
Policy, but even they admit that the Thirds Policy ended in
2001 and that the Navy now maintains no religious quotas.
Plaintiffs nonetheless insist their claim remains live, but each
of their three arguments fails.
First, as plaintiffs correctly point out, 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.” Davis, 440
U.S. at 631 (quoting United States v. W.T. Grant Co., 345
U.S. 629, 633 (1953)). Plaintiffs argue that the Navy flunked
condition one because it failed to prove that it wouldn’t
reinstitute the Thirds Policy and condition two because it still
uses the CARE Board. As to the first condition, because
plaintiffs never allege that the Navy is likely to or even
considering reinstituting the Thirds Policy, there is “‘no
reasonable expectation . . .’ that the alleged violation will
recur.” Id. (quoting Grant, 345 U.S. at 633). Plaintiffs point
out that the Navy still has authority to reinstitute the policy,
but “the 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.” Nat’l Black Police Ass’n v. District of
Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997). The record
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here contains no such evidence. Plaintiffs insist that the
Navy’s continued defense of the now abandoned Thirds
Policy amounts to evidence that the Navy will reenact the
policy. In support, it cites our statement in Doe v. Harris, 696
F.2d 109 (D.C. Cir. 1982), that “when a complaint identifies
official conduct as wrongful and the legality of that conduct is
vigorously asserted by the officers in question, the
complainant may justifiably project repetition.” Id. at 113.
But this case differs significantly from Harris. There, the
defendant expressly said it would commit the same alleged
violation again under certain circumstances, giving the
plaintiffs solid “evidence indicating that the challenged
[policy] likely [would] be reenacted.” Nat’l Black Police
Ass’n, 108 F.3d at 349. Here, by contrast, the Navy has never
said it will reenact the Thirds Policy, and plaintiffs have not
even alleged as much. As to condition two, the Navy’s
continued use of the CARE Board is irrelevant because the
Board no longer applies any type of religious quota system.
Second, as plaintiffs again accurately point out, a case is
not moot if a court can provide an effective remedy. See
Church of Scientology of Cal. v. United States, 506 U.S. 9, 13
(1992). And according to plaintiffs, this court can provide a
remedy, namely “a declaration that the Thirds Policy . . . was
unconstitutional, their rejection unlawful, and that an
injunction be granted preventing its reimplementation.”
Appellants’ Opening Br. 37. But because the Navy already
eliminated the Thirds Policy and plaintiffs never allege that
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. Of course, if
the district court’s sovereign immunity holding was incorrect,
plaintiffs’ claim for “constructive credit” might defeat
mootness, but because plaintiffs never argue this ground for
avoiding mootness, we decline to consider it. See Carducci v.
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Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (“[W]here counsel
has made no attempt to address the issue, we will not remedy
the defect . . . .”). Our concurring colleague is correct that in
Lesesne ex rel. B.F. v. District of Columbia, 447 F.3d 828
(D.C. Cir. 2006), we considered an argument against
mootness that was only “implied” on appeal, but explicit in
the complaint. Id. at 833. But here, plaintiffs never raised
their constructive credit claim as a ground for avoiding
mootness, not even implicitly. Moreover, the Lesesne court
never said it was required to consider the argument the
plaintiff inadequately raised. Thus, while Lesesne certainly
means we may consider arguments a plaintiff fails to raise
against mootness, we need not do so, especially where, as
here, it might force us to resolve a constitutional question.
Even were we to deem this case a live controversy, there
is another reason why we would decline to consider plaintiffs’
claim for constructive credit. Because plaintiffs’ claim relies
on their first being hired as Navy chaplains—a vital condition
that has yet to occur—it is unripe. See Devia v. Nuclear
Regulatory Comm’n, 492 F.3d 421, 425 (D.C. Cir. 2007)
(“[I]f a plaintiff’s claim . . . depends on future events that may
never come to pass, or that may not occur in the form
forecasted, then the claim is unripe.” (quoting McInnis-
Misenor v. Me. Med. Ctr., 319 F.3d 63, 72 (1st Cir. 2003))).
The concurrence is concerned that delaying resolution of this
claim may force these plaintiffs to a difficult decision about
whether to reapply. By reaching the merits, however, we
would be deciding an issue that will not arise unless plaintiffs
are hired as Navy chaplains—something that may never
occur. The claim is thus unripe.
Finally, plaintiffs argue that they challenge the Navy’s
current hiring policy as well as its Thirds Policy. Plaintiffs’
complaint, however, focuses on the Thirds Policy. Of the
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four relevant counts, three challenge “the Navy’s chaplain
accession goals,” yet the complaint itself states that the Navy
already “abandoned its policy of providing goals for specific
faith group clusters.” Compl. 18, 21, 23. The final relevant
count alleges that “[t]he Navy has established and maintained
an unconstitutional religious quota system.” Id. at 22. Even
on appeal, plaintiffs devote only two paragraphs of their sixty-
two-page opening brief to attacking the Navy’s current hiring
policies, providing virtually no reasoning or citations.
Appellants’ Opening Br. 50-51. We decline to revive this
case by reading into plaintiffs’ complaint an argument not
adequately presented. See Ala. Power Co. v. Gorsuch, 672
F.2d 1, 7 (D.C. Cir. 1982) (“Courts have long declined to
render decisions on important questions of far-reaching
significance which have not been argued by the party who
might benefit therefrom.”).
III.
For the reasons stated above, we remand this case to the
district court with instructions to dismiss plaintiffs’ claim as
moot.
So ordered.
WILLIAMS, Senior Circuit Judge, concurring in part and
concurring in the judgment: While I otherwise join the
majority opinion in full, I depart from it as to the plaintiffs’
request for “constructive credit.” I believe that this request,
unlike the other equitable remedies the plaintiffs seek, could
save their challenge to the now-abandoned “Thirds Policy” (see
Maj. Op. at 3) from mootness. In the end, however, I concur in
the court’s finding a lack of jurisdiction over plaintiffs’ challenge
to that policy, as this remedy is itself barred by the government’s
valid jurisdictional assertion of sovereign immunity.
The plaintiffs accuse the Navy of having engaged in
religious discrimination by refusing to hire them as chaplains.
They declare that they are “able and ready” to apply for the
chaplaincy again, and they seek an injunction ordering the
Navy, should it hire them as chaplains in the future, to accord
them “constructive credit” for the years they would have
served but for its unlawful discrimination under the Thirds
Policy. This additional seniority would entitle the plaintiffs to
a higher salary and would make them eligible to receive an
officer’s pension on retirement, a benefit they would
otherwise lack because of the Navy’s retirement rules and
pension prerequisites.
No one disputes that the plaintiffs allege an injury in fact
(the discriminatory refusal to hire). If the court can remedy that
injury, their claim is not moot, and per Lesesne ex rel. B.F. v.
District of Columbia, 447 F.3d 828, 832-33 (D.C. Cir. 2006),
we may look past a plaintiff’s losing arguments to determine
mootness from the complaint itself. In Lesesne, the plaintiff
correctly identified a form of relief that would have forestalled
mootness, but she failed to recognize that it had been properly
requested in her complaint—instead contending unsuccessfully
that it was implied in her demand for “any other relief the
Court deems just.” Id. at 833. Here, by contrast, the plaintiffs
correctly note that their complaint requests constructive credit;
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they merely fail to cite this request as a specific defense to
mootness. As in Lesesne, however, the fact that plaintiffs’
rebuttals to mootness are “without merit” does not prevent us
from recognizing that “[their] complaint presented the District
Court with a live controversy.” Id. at 832-33. The face of the
complaint reveals a live claim: the plaintiffs asked for
constructive credit and have not received it. The plaintiffs’
briefs pressed this remedy on appeal, and their failure to
mention it as a defense to mootness hasn’t prejudiced the
Navy—which acknowledged at oral argument that if
constructive credit were not barred by sovereign immunity, the
availability of that remedy would cure the mootness problem.
I am uncertain whether some unripeness in the request for
constructive credit sweeps it out of the picture, leaving the
attack on the Thirds Policy moot. It is true that the sought-
after injunction requiring an award of credit would have bite
only if the plaintiffs should be appointed as chaplains, and that
ripeness normally calls on us not to adjudicate claims that
“depend[] on future events that may never come to pass.” Maj.
Op. at 7 (quoting Devia v. Nuclear Regulatory Comm’n, 492
F.3d 421, 425 (D.C. Cir. 2007)). But the events underlying the
plaintiffs’ substantive claim—i.e., their attack on the Thirds
Policy—have already occurred: the Navy’s refusal to hire them
suffices for liability (assuming, as we must, that the plaintiffs
would win on the merits), and this refusal has had “its effects
felt in a concrete way.” Devia, 492 F.3d at 424 (quoting Abbott
Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)). Indeed, the
plaintiffs’ claims are partially overripe; the Navy’s shelving of
the Thirds Policy rendered direct judicial relief against it
meaningless and to that extent mooted the claim. The only
remaining question is whether a court must wait before
addressing the substantive questions on which the surviving
meaningful remedy (the constructive credit) depends. But
ripeness is a property of claims, not of remedies. If the Thirds
Policy were still alive and thus an injunction still useful against
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it, a court reaching the merits would consider the constructive
credit remedy as well. Perhaps the law of remedies would bar
such relief as too speculative, but the court would address that
as a merits issue rather than as a ripeness defense.
Further, to say that the plaintiffs’ claims become ripe only
once they are hired might put them in the sort of bind that
Abbott Labs. considered an important argument for ripeness,
see 387 U.S. at 152-54, as it would require them to give up
their current jobs (and any associated pension guarantees)
before they could establish their pension eligibility as
chaplains. Resolving the claim now would enable them to
choose in light of their legal rights.
Even if we viewed the plaintiffs’ request for credit as
their “claim” (which seems odd), the predicate event that may
or may not “come to pass” is their appointment as chaplains.
In assessing the likelihood of that event for ripeness purposes,
we must assume arguendo the validity of their merits claim.
Removal of the discriminatory policy, to be sure, by no means
guarantees their appointment, but the plaintiffs offered some
evidence that their prospects would have been good in a non-
discriminatory system, including evidence that, at least at the
time of the applications, the Navy was falling short of its
chaplain recruitment goals. Again, of course, the potential
hardship to the plaintiffs may tilt the balance toward
immediate adjudication. Devia, 492 F.3d at 427.
Doubtful that ripeness is a bar, and noting that we may
“choose among threshold grounds for denying audience to a
case on the merits,” Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 585 (1999), I believe we can more confidently rely
on the government’s sovereign immunity defense.
The plaintiffs argue that their request for constructive
credit falls within the Administrative Procedure Act’s waiver
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of sovereign immunity for actions “seeking relief other than
money damages.” 5 U.S.C. § 702. We need not determine
whether, under Hubbard v. EPA, 982 F.2d 531 (D.C. Cir.
1992), such credit is a form of money damages in a strict
sense, for Kidwell v. Dep’t of the Army and its progeny extend
the government’s immunity to equitable relief which “in
essence” represents a monetary recovery. 56 F.3d 279, 284
(D.C. Cir. 1995). As a result, where the relief sought lacks
“significant non-monetary value,” Tootle v. Sec’y of the Navy,
446 F.3d 167, 175 (D.C. Cir. 2006), it will be treated as a
form of money damages.
A variety of non-financial benefits have been described as
“considerable” in prior cases: the upgrading of a less-than-
honorable discharge in Kidwell, 56 F.3d at 286, early
retirement for an ill service member in Tootle, 446 F.3d at
175, and numerous benefits accruing to retired personnel in
Smalls v. United States, 471 F.3d 186, 190 (D.C. Cir. 2006).
But here the plaintiffs give no indication of any non-financial
consequences to the constructive credit they seek. Rather,
they state that “[u]nder existing law, there may be no way to
compensate Plaintiffs financially for the Navy’s illegal denial
of a commission,” Pls.’ Mem. P. & A. Supp. Pls.’ Opp. Defs.’
Mot. to Dismiss, Docket No. 9, at 16 (emphasis added), and
that “[t]he relief requested focuses on overcoming the
Plaintiffs’ burden and disqualification for a pension caused by
Defendants’ illegal actions,” Larsen Br. 60 (emphasis added).
Because the plaintiffs “bear[] the burden of proving that
the government has unequivocally waived its immunity,” Tri-
State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575
(D.C. Cir. 2003), and their allegations fail to identify any non-
monetary benefits to their proposed remedy, I would hold that
their request for constructive credit is barred by sovereign
immunity.