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In re Navy Chaplaincy

United States District Court, District of Columbia

February 28, 2013

In re: NAVY CHAPLAINCY.

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Arthur A. Schulcz, Sr., The Law Office of Arthur A. Schulcz, Sr., Vienna, VA, for Plaintiffs.

Christopher R. Hall, U.S. Department of Justice, Eric B. Beckenhauer, U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, for Defendants.

Matthew J.B. Lawrence, U.S. Department of Justice, Federal Programs Branch, Washington, DC, for Navy Chaplaincy.

AMENDED MEMORANDUM OPINION

GLADYS KESSLER, District Judge.

Plaintiffs, current and former non-liturgical Protestant chaplains in the United States Navy (" Navy" ), endorsing agencies for non-liturgical Protestant chaplains, and a fellowship of non-denominational Christian

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evangelical churches, bring this action against Defendants, Department of the Navy and several of its officials. Plaintiffs allege that Defendants discriminated against them on the basis of religion when making personnel decisions in violation of the First Amendment's Establishment Clause and the equal protection component of the Fifth Amendment's Due Process Clause, and that Defendants also violated the Establishment Clause by delegating governmental authority over personnel decisions to chaplains who sat on chaplain selection boards.

This matter is before the Court on Plaintiffs' Motion for a Preliminary Injunction [Dkt. No. 95] on remand from the Court of Appeals.[1] Upon consideration of the Motion, Opposition [Dkt. No. 98], Reply [Dkt. No. 99], and the entire record herein, and for the reasons set forth below, Plaintiffs' Motion is denied.

I. BACKGROUND

A. Factual Background[2]

Congress provided for the organization of the Navy Chaplain Corps, " whose members are commissioned Naval officers who possess specialized education, training and experience to meet the spiritual needs of those who serve in the Navy and their families." Adair v. England, 183 F.Supp.2d 31, 35 (D.D.C.2002)( Adair I ) (internal quotation marks omitted). The Navy divides the Chaplain Corps into four " faith groups" : Catholic, liturgical Protestant, non-liturgical Protestant, and Special Worship. In re Navy Chaplaincy, 697 F.3d 1171, 1173 (D.C.Cir.2012).

The term " liturgical Protestant" refers to " those Christian Protestant denominations whose services include a set liturgy or order of worship." Adair I, 183 F.Supp.2d at 36. In contrast, the term " non-liturgical Protestant" refers to " Christian denominations or faith groups that do not have a formal liturgy or order in their worship service." Id. Plaintiffs are current and former non-liturgical Protestants, " represent[ing] Southern Baptist, Christian Church, Pentecostal, and other non-liturgical Christian faith groups." Id.

In order to become a Navy chaplain, " an individual must have an ‘ ecclesiastical endorsement’ from a faith group endorsing agency certifying that the individual is professionally qualified to represent that faith group within the Chaplain Corps." In re Navy Chaplaincy, 697 F.3d at 1173. Chaplaincy of Full Gospel Churches and Associated Gospel Churches are two such endorsing agencies and are among the Plaintiffs in this case. Id.

The Navy uses the same personnel system for all of its officers, including chaplains. In re England, 375 F.3d 1169, 1172 (D.C.Cir.2004). That system " seeks to manage officers' careers to provide the Navy with the best qualified personnel through three critical personnel decisions: (1) promotion; (2) continuation on active duty; and (3) selective early retirement." Id. Chaplains, like all Navy officers, " are recommended for promotion by ‘ selection boards' convened to consider whether particular candidates should be promoted to a higher rank." In re Navy Chaplaincy, 697 F.3d at 1173. Chaplain selection boards are currently composed of seven members: two chaplains and five other officers. Id. (citing SECNAVINST 1401.3A, Suppl. ΒΆ 1.c.(1)(f)).

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Plaintiffs allege that Defendants " discriminated against [ ] [them] on the basis of their religion, by establishing, promoting and maintaining illegal religious quotas and religious preferences in their personnel decision making." In re Navy Chaplaincy, 841 F.Supp.2d 336, 341 (D.D.C.2012). More specifically, Plaintiffs allege that " the Navy's selection board process results in denominational favoritism that advantages Catholic and liturgical chaplains while disadvantaging non-liturgical chaplains" and that " this alleged systematic bias has left non-liturgical chaplains underrepresented in the Navy." Id. 340.

Plaintiffs claim that, under the selection board process, " [c]haplain promotion board members ‘ vote the record’ by depressing one of five buttons in a ‘ sleeve’ which hides the voter's hands, ensuring the secrecy of the vote" and that " [t]he buttons coincide with degrees of confidence the voter has in the record considered, ranging from 0 to 100 in 25 degree increments." Pls.' Mot. for Prelim. Inj. at 4 (internal quotation marks omitted). Plaintiffs allege that the secrecy of the vote enables chaplain promotion board members to engage in the practice of " zeroing out" candidates, a practice in which " a single [board] member voting zero" ensures that a candidate will not be selected " because of the small number of board members who vote[.]" Id. No other branch of the military uses the same or similar procedures in the management of the careers of its religious leaders.

Plaintiffs claim that, under this promotion system, which has no accountability, their " [s]tatistical analysis [ ] shows that in every [Navy Chaplain Corps] personnel management category that can be measured by data, the Navy has a preference for Catholics first, Liturgical Protestants second, with nonliturgical or Special Worship [faith group clusters] alternating third and fourth." Id. at 4-5.

Plaintiffs now move for a preliminary injunction, asking the Court to enjoin the Navy from " (1) the use of the Chief of Chaplains (the ‘ Chief’ ) or his Deputy as chaplain selection board president; (2) the use of secret votes thereon with no accountability; and (3) placing chaplains on chaplain selection boards without effective guarantees [that] the power to distribute government benefits will be used solely for secular, neutral and non-ideological purposes." Id. at 1. Plaintiffs request that the preliminary injunction remain in force " until the Court can evaluate on their merits the partial summary judgment (PSJ) motions pending before this Court." [3] Id. at 2.

B. Procedural Background

This dispute involves three cases, Chaplaincy of Full Gospel Churches v. England, Civ. No. 99-2945, Adair v. England, Civ. No. 00-566, and Gibson v. Dep't of Navy, Civ. No. 06-1696, the earliest of which was filed in 1999, and each with a complaint of over 85 pages, containing multiple constitutional claims. On June 18, 2007, the District Court concluded that the three cases raised " substantially similar constitutional challenges to the Navy Chaplaincy program" and accordingly consolidated the cases under the caption In re Navy Chaplaincy. Order (June 18, 2007) at 3-4 [Dkt. No. 1].

On July 22, 2011, Plaintiffs filed the present Motion for a Preliminary Injunction— which is their sixth such motion for injunctive relief.[4] On August 26, 2011, Defendants

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filed their Opposition to Plaintiffs' Motion, and on September 12, 2011, Plaintiffs' filed their Reply in support of their Motion.

Plaintiffs' motion was denied by the District Court on January 30, 2012. See In re Navy Chaplaincy, 841 F.Supp.2d 336. Plaintiffs appealed that judgment, and on November 2, 2012, the Court of Appeals reversed and remanded for further proceedings.[5] See In re Navy Chaplaincy, 697 F.3d 1171.

1. District Court Proceedings

In denying Plaintiffs' motion, the District Court " began by concluding that plaintiffs lacked Article III standing, reasoning that their asserted future injury was too speculative because it rested on the assumption that chaplains sitting on future selection boards would ‘ necessarily favor candidates affiliated with [their] own denomination,’ an assumption that the court found implausible given that Naval officers ‘ are presumed to undertake their official duties in good faith.’ " In re Navy Chaplaincy, 697 F.3d at 1175 (quoting In re Navy Chaplaincy, 841 F.Supp.2d at 345).

The District Court then concluded that " even if Plaintiffs had Article III standing, the balance of the four preliminary injunction factors [6] weighed against granting injunctive relief." In re Navy Chaplaincy, 697 F.3d at 1175. More specifically, " [a]lthough the [District] [C]ourt presumed the existence of irreparable harm because plaintiffs had alleged an Establishment Clause violation, the court found that plaintiffs were unlikely to succeed on the merits, and that the ...


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