The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
DENYING WITHOUT PREJUDICE THE PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION TO RESTORE THE STATUS QUO
These cases come before the court on the plaintiffs' motion for a preliminary injunction to prevent the government from either censoring or compelling their speech by requiring them to recruit new members to the Navy's Chaplain Corps. The plaintiffs, current and former Navy chaplains and an ecclesiastical endorsing agency for military chaplains, bring these suits alleging that the Navy's policies and practices favor one religion over another in violation of the First Amendment's Establishment and Free Exercise Clauses, and in violation of the Fifth Amendment's Equal Protection Clause. Specifically, the plaintiffs charge that the hiring, retention, and promotion policies of the Navy Chaplain Corps demonstrate an unconstitutional endorsement of liturgical Christian sects over non-liturgical Christian sects. *fn1
This matter now comes before the court on the plaintiffs' motion for a preliminary injunction to prevent the Navy from requiring the plaintiffs to recruit religious leaders from the public at large into the Navy's Chaplain Corps. The court concludes that it currently lacks jurisdiction over the claims that the plaintiffs set forth in their motion for a preliminary injunction since neither complaint includes these allegations. Accordingly, the court denies the plaintiffs' motion without prejudice. The court will give the plaintiffs 30 days from the date of this Memorandum Opinion to supplement their complaints pursuant to Federal Rule of Civil Procedure 15(d), and will grant the plaintiffs leave to refile this motion at a later date, if they so choose, once the claims are part of the case.
Although the above-captioned cases are not consolidated for all purposes, they have been consolidated for purposes of all pretrial pending motions. *fn2 In the Chaplaincy case, the plaintiffs are an endorsing agency for military chaplains and seven of its individual members. In the Adair case, the plaintiffs are 17 current and former non-liturgical chaplains in the Department of the Navy ("the defendants," "Navy," or "DON"). In both cases, the plaintiffs allege that the Navy has established and maintained an unconstitutional religious quota system for promotion, assignments, and retention of Navy chaplains, in violation of both the Establishment Clause and the Free Exercise Clause of the First Amendment, and the Equal Protection Clause of the Fifth Amendment. Specifically, the plaintiffs allege that the Navy's policies and practices favor liturgical Christian chaplains over non-liturgical Christian chaplains. *fn3
On January 10, 2002, the court issued a Memorandum Opinion granting in part and denying in part the defendants' motion to dismiss. See Adair v. England, 183 F. Supp.2d 31, 2002 WL 27293 (D.D.C. Jan. 10, 2002). The court held that strict scrutiny applies to the plaintiffs' First Amendment and equal protection claims, that the plaintiffs did not need to exhaust their administrative remedies before filing suit in federal court, that the plaintiffs had stated a claim that the Navy's hiring and retention policies violate the Establishment Clause, that the Navy's practices of allowing chaplains to rate other chaplains for promotions and of allowing multiple chaplains to serve on promotion boards do not violate the Establishment Clause, that the plaintiffs had stated a claim that the Navy's practice of displaying the religious identity of chaplains up for promotion violates the Establishment Clause and Free Exercise Clause, that the Navy's practice of having only "General Protestant" religious services could violate the Establishment Clause, and that the plaintiffs had stated a free speech claim. See id.
In March 2001, top officials directed all chaplains "to personally and actively support chaplain recruiting efforts." Mot. for Prelim. Inj. at 4 (citing Exs. 2 (Letter from Chief of Chaplains Black dated March 30, 2001), 3 (Memorandum from Deputy Chief of Chaplains Iasiello dated March 2001)). According to the plaintiffs, top-level Navy Chaplain Corps officials instructed chaplains that a failure to actively recruit "will be noted in fitness reports and chaplain recruiting support will be a criteria for promotion board consideration." Id.
The plaintiffs filed a motio n for a preliminary injunction asking the court to stop the implementation of the Navy's new directives. The plaintiffs contend that the new directives require them to speak positively about the Chaplain Corps or to refrain from making negative comments about the Chaplain Corps. See Mot. for Prelim. Inj. at 1.
From the plaintiffs' perspective, the new policies force them to be dishonest and place them in an untenable position. See id. at 4. On the one hand, the plaintiffs note that they are actively pursuing this litigation, which includes public, negative speech about the Navy Chaplain Corps. See id. at 6. "Since these lawsuits do not support recruiting, Plaintiffs' raters can use the fact that Plaintiffs have filed these suit[s] as a reason to lower their fitness reports." Id. "The Directives punish Plaintiffs for warning civilian clergy of the Navy's systematic hostility and culture of prejudice challenged in these cases." Id. at 4. On the other hand, the plaintiffs charge that the new directives compel only positive, public speech about the Chaplain Corps and prevent any negative, public speech, such as the complaint filed in this action. See id. at 1. Accordingly, the plaintiffs assert that the directives force them to praise the Chaplain Corps when, in fact, they have already publicly expressed serious misgivings about the Corps's policies. See id. at 6.
Noting that the new directives came into existence in March 2001, one year after they filed the second of these two complaints, the plaint iffs allege that one of the principal purposes for the new policies was the Navy's desire to retaliate against the plaintiffs for filing these lawsuits. See Mot. for Prelim. Inj. at 9. The plaintiffs also claim that the directives burden their free speech rights and violate the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. See id.
The defendants deny the allegations, stating that the senior Chaplain Corps officials issued the directives "to inform chaplains of the number one priority of the Chief of Naval Operations - manpower." See Defs.' Opp'n at 1. "The Chief of Naval Operations has repeatedly expressed his belief that meeting the Navy's human resource needs is the top challenge that the Navy faces at present, and that ...