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In Re Navy Chaplaincy

March 21, 2012


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document Nos.: 21, 29, 42





This matter is before the court on the plaintiffs' motion to alter or amend the court's interlocutory judgment that was issued on January 10, 2002, or, in the alternative, to certify the judgment for appeal under Federal Rule of Civil Procedure 54(b). The court further considers a similar motion filed by one of the plaintiffs, the Chaplaincy of Full Gospel Churches ("CFGC"), requesting that the court alter or amend its August 17, 2000 decision, or, in the alternative, that it certify judgment. Lastly, the court addresses the defendants' motion for partial dismissal. For the reasons explained below, the court denies both of the plaintiffs' motions to alter or amend the court's previous judgments, as well as the alternative requests for certification under Rule 54(b). Furthermore, the court grants in part and denies in part the defendants' motion for partial dismissal.


Because the court has published more than a dozen opinions in this case, it will dispense with a full recitation of its lengthy and convoluted background.*fn1 For ease and readability, however, the court presents here a skeletal description of the plaintiffs' claims,*fn2 offering a more comprehensive background throughout its discussion where such information proves necessary.

Briefly stated, the plaintiffs claim that the Department of the Navy and several of its officials (collectively, "the defendants") have discriminated against the plaintiffs on the basis of their religion, by establishing, promoting and maintaining "illegal religious quotas" and religious preferences in their personnel decision-making. Adair v. England, Civ. No. 00-566 ("Adair"), 4th Am. Compl. ¶ 1; Chaplaincy of Full Gospel Churches v. England, Civ. No. 99-2945 ("CFGC"), 4th Am. Compl. ¶ 1; Gibson v. Dep't of Navy, Civ. No. 06-1696 ("Gibson"), Am. Compl. ¶ 1. More specifically, the plaintiffs allege that the Navy discriminates against members of "non-liturgical" religions*fn3 when making decisions for the promotion, accession,*fn4 retention and separation of Navy chaplains. Adair, Mem Op. (Jan. 10, 2002) at 5-9.

Three cases were commenced, all raising "substantially similar constitutional challenges to the Navy Chaplaincy program." In re Navy Chaplaincy, Miscellaneous No. 07-269, Mem. Order (June 18, 2007) at 3-4. The court ultimately determined that these cases, Adair v. England, CFGC v. England and Gibson v. Dep't of the Navy,should be consolidated under the caption In re Navy Chaplaincy. See id. at 4.

Although their constitutional challenges are nearly identical, the plaintiffs in each case are varied. The Adair plaintiffs are 17 current and former non-liturgical chaplains in the Navy. Adair, Mem. Op. (Jan. 10, 2002) at 2. In the CFGC case, the plaintiffs are composed of an endorsing agency for non-liturgical military chaplains called the Chaplaincy of Full Gospel Churches and seven of its individual members. Id. Lastly, the Gibson plaintiffs consist of 41 individual plaintiffs and one organizational plaintiff, the Associated Gospel Churches, which is "a fellowship of non-denominational, evangelical churches." Gibson, Am. Compl. ¶ 3.

In the latest iteration of this longstanding dispute, the plaintiffs move the court to alter or amend two of its previous judgments. Alternatively, the plaintiffs ask the court to certify these judgments for appeal under Rule 54(b). The defendants, for their part, move the court to partially dismiss the plaintiffs' claims. With the parties' respective motions ripe for consideration, the court turns to the parties' arguments and the applicable legal standards.


A. The Court Denies Both of the Plaintiffs' Rule 54(b) Motions

1. Legal Standard for Altering or Amending an Interlocutory Judgment

A district court may revise its own interlocutory decisions "at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." FED. R. CIV. P. 54(b); see also Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000) (citing the Advisory Committee Notes to Federal Rule of Civil Procedure 60(b)). The standard for the court's review of an interlocutory decision differs from the standards applied to final judgments under Federal Rules of Civil Procedure 59(e) and 60(b). Compare Muwekma Tribe v. Babbitt, 133 F. Supp. 2d 42, 48 n.6 (D.D.C. 2001) (noting that "motions for [relief upon] reconsideration of interlocutory orders, in contrast to motions for [relief upon] reconsideration of final orders, are within the sound discretion of the trial court") and United Mine Workers v. Pittston Co., 793 F. Supp. 339, 345 (D.D.C. 1992) (discussing the standard applicable to motions to grant relief upon reconsideration of an interlocutory order) with LaRouche v. Dep't of Treasury, 112 F. Supp. 2d 48, 51-52 (D.D.C. 2000) (analyzing the defendant's motion for relief from judgment under Rule 60(b)) and Harvey v. District of Columbia, 949 F. Supp. 878, 879 (D.D.C. 1996) (ruling on the plaintiff's motion to alter or amend judgment pursuant to Rule 59(e)). A motion pursuant to Rule 59(e), to alter or amend a judgment after its entry, is not routinely granted. Harvey, 949 F. Supp. at 879. The primary reasons for altering or amending a judgment pursuant to Rule 59(e) or Rule 60(b) are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice. Id.; Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam); FED. R. CIV. P. 60(b); LaRouche, 112 F. Supp. 2d at 51-52.

By contrast, relief upon reconsideration of an interlocutory decision pursuant to Rule 54(b) is available "as justice requires." Childers, 197 F.R.D. at 190. "As justice requires" indicates concrete considerations of whether the court "has patently misunderstood a party, has made a decision outside the adversarial issues presented to the [c]court by the parties, has made an error not of reasoning, but of apprehension, or where a controlling or significant change in the law or facts [has occurred] since the submission of the issue to the court." Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004) (internal citation omitted). These considerations leave a great deal of room for the court's discretion and, accordingly, the "as justice requires" standard amounts to determining "whether [relief upon] reconsideration is necessary under the relevant circumstances." Id. Nonetheless, the court's discretion under Rule 54(b) is limited by the law of the case doctrine and "subject to the caveat that, where litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again." Singh, 383 F. Supp. 2d at 101 (internal citations omitted).

2. Legal Standard for Rule 54(b) Certification of Final Judgment

Federal Rule of Civil Procedure 54(b) allows a district court in a case with multiple parties or multiple claims to "direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." FED. R. CIV. P. 54(b). The purpose of Rule 54(b) is to "mediate[] between the sometimes antagonistic goals of avoiding piecemeal appeals and giving parties timely justice." Taylor v. Fed. Deposit Ins. Corp., 132 F.3d 753, 760 (D.C. Cir. 1997).

Whether a case is one of the "exceptional cases" qualifying for Rule 54(b) certification is a decision that falls within the discretion of the district court, which is "most likely to be familiar with the case and with any justifiable reasons for delay." Bldg. Indus. Ass'n of Super. Calif. v. Babbitt, 161 F.3d 740, 743 (D.C. Cir. 1998) (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437 (1956)). Under the rule, "the district court [functions] as a dispatcher, determining in its sound discretion when a claim should proceed on to appellate resolution and when it should await its fellows." Petties v. District of Columbia, 227 F.3d 469, 472 (D.C. Cir. 2000) (internal quotations omitted); see also Hill v. Henderson, 195 F.3d 671, 672 (D.C. Cir. 2000) (describing Rule 54(b) as an "escape hatch" permitting a partial disposition to become a final judgment).

The district court, however, must make certain determinations on the record before the appellate court can acquire jurisdiction. Bldg. Indus. Ass'n, 161 F.3d at 743; see also Haynesworth v. Miller, 820 F.2d 1245, 1253 (D.C. Cir. 1987) (noting that a district court's "[f]ailure to take the steps specified in Rule 54(b) is more than a mere technicality; without compliance, a federal court of appeals lacks jurisdiction to entertain challenges to the order"). First, the district court must ensure that it is dealing with a final judgment: "final" in the sense that it is "an ultimate disposition of an individual claim entered in the course of a multiple claims action," and "a 'judgment' in the sense that it determines a claim for relief." Bldg. Indus. Ass'n, 161 F.3d at 744 (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7 (1980)).

Second, the court must determine whether there is any just reason for delay, keeping in mind that "[n]ot all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims." Id. (quoting Curtiss-Wright Corp., 446 U.S. at 8). Before "departing from the norm" by certifying a final judgment, the court "must take into account judicial administrative interests," including "such factors as whether the claims under review were separable from the others remaining to be adjudicated and whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals." Id. (emphasis in original) (quoting Curtiss-Wright Corp., 446 U.S. at 8); see also Hill, 195 F.3d at 672 (noting that when review is deferred, "it is less likely that the appellate court will face overlapping issues and circumstances on two occasions"). The court must also consider the equities involved. Bldg. Indus. Ass'n, 161 F.3d at 744 (citing Curtiss-Wright Corp., 446 U.S. at 8).

3. The Plaintiffs' Motion to Alter or Amend the Court's January 10, 2002 Judgment, or, in the Alternative, to Certify Judgment

a. The Court's January 10, 2002 Judgment & Subsequent Related Litigation

On January 10, 2002, the court issued a memorandum opinion that granted in part a motion to dismiss that had been previously filed by the defendants. See generally Adair, Mem. Op. (Jan. 10, 2002). Of particular relevance here, the court determined that the plaintiffs failed to state a claim with respect to allegations that the defendants had violated the Establishment Clause by allowing chaplains to rate other chaplains and permitting more than one chaplain to sit on a chaplain selection board. Id. at 47. Guided by well-settled case law that requires a court to presume that government officials will conduct themselves properly and in good faith, the court refused to assume, despite the plaintiffs' urging, that "the usual rule for a chaplain sitting on a promotion board will be to discriminate against promotion candidates on the basis of religious denomination." Id. at 48. The court further rejected the plaintiffs' contention that "having chaplains rate other chaplains delegates a religious function to the governmental body," concluding instead that "Navy chaplains are first and foremost Naval officers," and as such are presumed to undertake the duties of an officer in good faith. Id. The court further agreed with the defendants' reasoning that it made sense to allow chaplains to rate other chaplains because "the Chaplain Corps fulfills a unique mission within the Navy that requires it to perform duties significantly different from those of Naval line officers and Naval officers in other staff corps." Id. at 49.

Citing these same reasons, the court also dismissed the plaintiff's claim that "having more than one chaplain on a board would provide an opportunity for religious bias because selection boards will inherently discriminate among religious denominations based on their own preferences." Id. at 50. The court took particular note of the fact that "the plaintiffs never explain[ed] why having one chaplain on a promotion board is constitutional, but having more than one chaplain is unconstitutional." Id.

Immediately after the opinion was issued, the plaintiffs asked the court to reconsider its dismissal of the plaintiffs' claim that "having chaplains sit on chaplain promotion boards and allowing chaplains to rate other chaplains are practices that violate the First Amendment." CFGC, Mem. Op. (Aug. 5, 2002) at 3. The court subsequently denied that motion, explaining that it had "reviewed the plaintiffs' allegations in the light most favorable to the plaintiffs and ruled that those allegations failed to state a claim for relief as a matter of law." Id. at 7.

The plaintiffs subsequently moved for entry of final judgment, a request that was also denied by the court. See generally id., Order (May 6, 2004). The court agreed with the plaintiffs that its decision to dismiss the claims concerning the rating of chaplains by other chaplains and sitting on promotion boards was a "final judgment" for purposes of Rule 54(b). Id. at 6. It determined, nevertheless, that the equities of the case did not merit certification, expressing concern that allowing the plaintiffs to appeal the dismissed claims before the resolution of their other claims would result in unnecessary piecemeal litigation. Id. at 7.

The plaintiffs have now filed yet another motion requesting that the court alter or amend its January 10, 2002 ruling. See generally Pls.' 1st Mot. to Alter or Amend. Specifically, the plaintiffs seek relief upon reconsideration of the court's decision to dismiss the plaintiffs' claims that chaplains should not rate other chaplains and that more than one chaplain should not sit on a promotion board. Id.

b. The Court Denies the Plaintiffs' Motion to Alter or Amend the Court's January 10, 2002 Judgment, or, in the Alternative, to Certify Judgment

In asking the court to reconsider the aforementioned rulings, the plaintiffs argue that evidence revealed during discovery that took place after the court's 2002 ruling shows that chaplains serve on selection boards as denominational representatives. Pls.' 2d Mot. for Recons. at 4. The plaintiffs point to military regulations to support their assertions that chaplains are hired to represent their religious organizations and are therefore treated distinctly from other Naval officers. Id. at 15. The plaintiffs maintain that because a chaplain's "unique" role involves simultaneous service as a denominational representative and a military officer, he or she cannot be expected to "be like all other officers merely because [her or she] walk[s] into a selection board room." Id.

The plaintiffs further assert that discovery produced by defendants since 2006 has demonstrated that "[t]hose denominations whose members appear most often on boards have statistically higher candidate selection rates."*fn5 Id. at 18. According to the plaintiffs' expert, when a candidate for promotion shared a denomination with a board member, there was a statistically significant higher chance that he or she would fare better in the selection process. Id. The plaintiffs thus draw the "inescapable conclusion" that when chaplains make decisions to award or deny government benefits to other chaplains, they "act like denominational representatives and favor those most like themselves," thereby violating the Establishment Clause. Id.

The defendants argue, among other things, that the plaintiffs' submissions "are duplicative of the allegations in the dismissed claims and therefore immaterial." Defs.' Opp'n to Pls.' Mot. to Alter or Amend at 8. The defendants further contend that the plaintiffs' evidence does not support that "the law somehow requires [the chaplains to represent their faith group] when serving on promotion boards or in reviewing the performance of other chaplains." Id.

The Circuit has described the role of chaplains within the service as "'unique' [because it] involve[s] simultaneous service as clergy or a 'professional representative' of a particular religious denomination and as a commissioned naval officer." In re England, 375 F.3d 1169, 1171 (D.C. Cir. 2004). The court wholeheartedly agrees with this assessment, as well as with the plaintiffs' assertion that "the chaplains['] religious identities make them unlike all other naval officers." Pls.' 1st Mot. to Alter or Amend the Court's Jan. 10, 2002 J. ("Pls.' 1st Mot. to Alter or Amend") at 15. In fact, the dual role of chaplains as officers and religious representatives was specifically and expressly taken into account by this court in its January 10, 2002 judgment. Adair, Mem. Op. (Jan. 10, 2002) at 49 ("Another persuasive reason to allow chaplains to rate other chaplains is that the Chaplain Corps fulfills a unique mission within the Navy that requires it to perform duties significantly different from those of Naval line officers and Naval officers in other staff corps.").

Nevertheless, the court remains unconvinced that simply because a Navy chaplain is forced to wear two "hats" in the course of executing his or her duties, he or she will necessarily engage in biased decision-making when reviewing other chaplains. The plaintiffs do not allege that as a denominational representative chaplains are expected to engage in bigotry or discrimination. See generally Pls.' 1st Mot. to Alter or Amend. Nor do they argue that "every chaplain serving as a board member allows his denominational background and identity to influence his decision." Id. at 34 ("The question is not whether every chaplain serving as a board member allows his denominational background and identity to influence his decision, but whether some chaplains, intentionally or unintentionally, allow their denominational background and role as denominational representatives to influence their decisions.").

To successfully state a claim that these challenged policies are facially unconstitutional, the plaintiffs would have to allege that "no set of circumstances exist" under which this policy would be constitutional. United States v. Salerno, 481 U.S. 739, 745 (1987). They have not alleged this, however. To the contrary, the plaintiffs appear to concede that some chaplains may review other chaplains and sit on promotion boards without allowing their denominational background and identity to influence their decisions. Pls.' 1st Mot. to Alter or Amend at 34. Moreover, as noted by the defendants, the chaplains are "required by Congress and the Navy to swear that they will carry out their duties on selection boards 'without prejudice or partiality,'" and that their recommendations are in the best interest of the Navy. Defs.' Opp'n at 13; see also In re England, 375 F.3d 1169, 1173 (D.C. Cir. 2004) ("By statute, each member of a selection board must take an oath to perform his duties 'without prejudice or partiality and having in view both the special fitness of officers and the efficiency of [the Navy].'" (quoting 10 U.S.C. § 613)).

The court therefore remains persuaded that circumstances exist under which the Navy's policies for selection boards would be considered constitutional (for instance, when chaplains sitting on selection boards act according to their official directives and not according to personal bias). Accordingly, the plaintiffs have not advanced any evidence or argument that would warrant the alteration or amendment of the court's prior dismissal of the plaintiffs' claims that the defendants' policies to have chaplains rate other chaplains or to have more than one chaplain sit on a review board facially violate the Establishment Clause.

The court is mindful that the plaintiffs have advanced substantial evidence in support of their arguments that for certain individual chaplains, their role as a denominational representative may, in fact, impact their decision-making process with respect to reviewing other chaplains. See Pls.' 1st Mot. to Alter or Amend at 31 (noting that expert analysis "clearly shows denomination is an important factor in determining which denominational representatives are awarded or denied government benefits). To be clear, the court's 2002 dismissal of these two claims does not prevent the plaintiffs from pursuing their other claims that "some board members advance their own denominations in violation of the Establishment and Due Process Clauses," Adair 4th Am. Compl. ¶ 85, or that the Navy has established "denominational goals" and a "hierarchy of preferred religious traditions" in violation of the First and Fifth Amendments, id.

¶¶ 42-53, 59-71. In other words, to the extent that the plaintiffs raise an "as applied" challenge to the promotion boards and rating processes, the 2002 dismissal does not apply to those claims. See Infra Part III.B.4.

Lastly, the court turns to the plaintiffs' alternate request for certification under Rule 54(b). The parties have previously litigated this precise issue, and the court has already stated its reasons for refusing to certify final judgment for these same claims. See generally Adair, Mem. Op. (May 6, 2004). The court will not needlessly repeat its reasoning here, and, accordingly, denies the plaintiffs' motion.

4. Plaintiff CFGC's Motion to Alter or Amend the Court's August 17, 2000 Judgment, or, in the ...

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