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In re Chaplaincy

United States District Court, District of Columbia

September 4, 2014

IN RE: NAVY CHAPLAINCY

MEMORANDUM OPINION

GLADYS KESSLER, District Judge.

Plaintiffs, 65 current and former nonliturgical Protestant chaplains in the United States Navy, their endorsing agencies, and a fellowship of non-denominational Christian evangelical churches ("PlaintiffS"), bring this consolidated action against the Department of the Navy and several of its officials ("Defendants"). Plaintiffs allege that Defendants discriminated against non-liturgical Protestant chaplains on the basis of religion, maintained a culture of denominational favoritism in the Navy, and infringed on their free exercise and free speech rights.

This matter is before the Court on Plaintiffs' Motion for Class Certification [Dkt. No. 147]. Upon consideration of the Motion, Opposition [Dkt. No. 156], Reply [Dkt. No. 160], Sur-Reply [Dkt. No. 170], Sur-Sur-Reply [Dkt. No. 178], and the entire record herein, and for the reasons set forth below, Plaintiffs' Motion shall be denied.

I. BACKGROUND[1]

A. The Navy Chaplain Corps

The Navy employs a corps of chaplains ("Chaplain Corps" or "CHC") to meet the religious needs of its members. Chaplains provide religious education, counseling, and support to sailors and Marines and advise commanders on religious, moral, and ethical issues. In re England , 375 F.3d 1169, 1171 (D.C. Cir. 2004) (citations omitted). The role of a chaplain "within the service is unique, ' involving simultaneous service as clergy or a professional representative[]' of a particular religious denomination and as a commissioned naval officer." Id . (citations omitted) To serve these dual roles, chaplains must have a graduate level theology degree or equivalent, meet the physical and educational requirements applicable to all commissioned officers, and be endorsed by an endorsing agency as qualified to represent a particular faith group. Id. at 1171-72.

There are over 100 faith groups recognized by the Department of Defense, which the Navy has grouped into four "faith group categories" for purposes of organizing the Chaplain Corps: Roman Catholic, Liturgical Protestant, Non-liturgical Protestant, and Special Worship. In re Navy Chaplaincy , 697 F.3d 1171, 1173 (D.C. Cir. 2012) ("In re Navy Chaplaincy I"). The Liturgical Protestant category consists of Protestant denominations that trace their origins to the Protestant Reformation, practice infant baptism, and follow a prescribed liturgy; it includes Lutheran, Episcopal, Methodist, and Presbyterian faiths. In re England , 375 F.3d at 1172; Consolidated Complaint ("Consol. Compl.") ¶ 6(b) [Dkt. No. 134]. The Non-liturgical Protestant category is composed of Protestant denominations that baptize at the "age of reason" and do not follow a formal liturgy; it includes Baptist, Evangelical, Pentecostal, Bible Church, and Charismatic faiths. In re England , 375 F.3d at 1172; Consol. Compl. ¶ 6(c). The Special Worship category encompasses all denominations not covered by the other categories; it includes Jewish, Hindu, Buddhist, Muslim, Jehovah's Witness, Christian Science, Mormon, and Unitarian faiths. Chaplaincy of Full Gospel Churches v. England , 454 F.3d 290, 295 n.3 (D.C. Cir. 2006); Consol. Compl. ¶ 6 n.5.

In order to maintain the requisite number of chaplains for all ranks (what the Navy refers to as "authorized end strength"), the Chaplain Corps creates an annual "accessions plan" setting forth the number of officers it can bring on active duty that fiscal year. Declaration of Captain Gene P. Theriot, CHC, USN ("Theriot Decl.") ¶ 2 [Dkt. No. 29-6]; see also SECNAVINST 1120.4A(5). The term "accession" refers to the process of bringing a qualified individual into the Chaplain Corps as a commissioned officer. Theriot Decl. ¶ 2. Chaplain Corps accessions are drawn primarily from the civilian population, but also from the reserve community, Chaplain Candidate Program, and inter-service transfers. Id .; see also Consol. Compl. ¶ 44(c).

Chaplain applications are reviewed by a "Chaplain Appointment Recall and Eligibility Advisory Group" or what is commonly referred to as a "CARE" board. Theriot Decl. ¶ 3. The CARE board reviews chaplain applications and recommends certain applicants to the Chief of Chaplains, "giving particular consideration to: the existence of an ecclesiastical endorsement, academic performance, graduate theological education, professional ministry experience, professional reputation and deportment, interview results and letters of personal or professional recommendation." Id . After considering the CARE board's recommendations, the Chief of Chaplains forwards his or her recommendations for accession to the Commander of the Navy Recruiting Command or the Chief of Naval Personnel for final approval/disapproval. Id.

After accession, chaplains are subject to the same personnel system as other naval officers and, like other officers, are required to be promoted in rank at regular intervals. In re England , 375 F.3d at 1172 (citing 10 U.S.C. § 611 (a)). If a chaplain is considered but not selected for promotion to the next higher rank, he or she is said to have "failed of selection." Chaplaincy of Full Gospel Churches , 454 F.3d at 293. Two or more failures of selection subject the chaplain to the risk of involuntary separation, known as "selective early retirement." See 10 U.S.C. § 632 (a)-(b). The Navy may, however, elect to continue a chaplain on active duty despite two or more failures of selection if, in its judgment, the needs of the Navy so require. see id. § 632(c) (2).

Each of these decisions regarding a chaplain's career - promotion, selective early retirement, and continuation on active duty - is made by a selection board composed of officers superior in rank to the person under consideration.[2] In re England , 375 F.3d at 1172. The selection board process is governed by statute and regulations prescribed by the Secretary of Defense. See 10 U.S.C. §§ 611, 612. Under the current regulations, chaplain selection boards are composed of seven members, two of whom are chaplains "nominated without regard to religious affiliation." In re Navy Chaplaincy , 738 F.3d 425, 427 (D.C. Cir. 2013) ("In re Navy Chaplaincy III") (citing SECNAVINST 1401.3A, Encl. (1), ¶ 1.c. (1)(f)). "Either the Chief of Chaplains or one of his two deputies serves as selection board president." Id.

B. Plaintiffs' Claims

Plaintiffs are 65 current and former Non-liturgical Protestant chaplains who have collectively served in more than fifty different naval command stations worldwide during the past four decades, [3] their endorsing agencies, and a fellowship of non-denominational Christian evangelical churches. They allege that "the Navy has violated their constitutional and statutory rights by establishing a pervasive culture of hostility, animosity and prejudice towards themselves and their class" manifested by: (1) "a pattern of religious preferences favoring Liturgical Christian chaplains over Non-liturgical Christian chaplains"; (2) "procedures that allow and encourage denominational preferences in the award and denial of government benefits"; and (3) "hostility toward Non-liturgical religious speech and worship practices." Mot. at 5.

They contend that a statistical examination by their expert, Dr. Harald R. Leuba, Ph.D., demonstrates that "[e]very dimension of personnel management which can be illuminated with data shows that Non-liturgical chaplains are disadvantaged by the CHC' [s] policies and practices of religious preference [.]" Consol. Compl. ¶ 42.

Plaintiffs' Consolidated Complaint and accompanying "Addendum" collectively exceed 200 pages and contain sixteen separate counts, many of which are not conceptually or legally distinct. For purposes of this Motion, it is sufficient to divide their claims into three overarching categories, as follows.[4]

First, they attack a number of facially neutral personnel practices, both current and historical, which they believe have allowed religious bias to infect selection board outcomes and led to discriminatory personnel decisions. Specifically, they challenge: (1) the small size of selection boards; (2) the placement of two chaplains on each board, one of whom is either the Chief of Chaplains or one of his or her deputies; and (3) the use of "secret voting" procedures in which board members anonymously indicate their degree of confidence in a candidate, a process Plaintiffs contend "enables each board's chaplains to ensure that a particular candidate will not be promoted, thus increasing the odds for their preferred (and discriminatory) results." In re Navy Chaplaincy III , 738 F.3d at 428; see also Consol. Compl. ¶ 95(c).

Plaintiffs also take issue with the fact that until 2002, "each selection candidate's three-digit faith group identifier' code... was prominently displayed throughout the selection board process[, ]" which they claim had no purpose other than "to identify a candidate's faith group to the board" for purposes of permitting the chaplain board members "to exercise their individual or faith group prejudice..., particularly against Non-liturgical chaplains." Consol. Compl. ¶¶ 86-87.

Second, Plaintiffs assert that, until 2001, the Navy used religious quotas or "goals" for apportioning chaplain opportunities among the faith group categories. Consol. Compl. ¶¶ 33-35. In particular, they claim that between 1986 and 2001, the Navy had a so-called "Thirds Policy" under which it reserved thirty-five percent of chaplain accessions to Liturgical Protestants, thirty-five percent to "Non-liturgical faith groups, " and thirty percent to "Others, " including Catholics. Consol. Compl. ¶¶ 33, 35, 43. They also claim that from 1977 until 2002, Defendants maintained a policy of reserving a set number of selection board seats for Roman Catholic chaplains (the so-called "2 RC" and "1 RC" policies), allegedly for the purpose of "stacking" selection board proceedings in favor of Roman Catholic and Liturgical Protestant chaplains despite their declining numbers in the broader population. Consol. Compl. ¶¶ 57 (e)-(g)

Third, in the "Addendum" to their Consolidated Complaint, the individual chaplain Plaintiffs advance a laundry list of fact-specific claims asserting equal protection and free exercise violations they purportedly suffered while serving as chaplains in the Navy. These consist of highly individualized allegations that they were, at different points in time and in different command centers: (1) retaliated against, criticized, transferred, or removed from their posts by superior officers based on their faith or the content of their religious teachings; (2) treated differently from Liturgical chaplains with respect to disciplinary issues, promotion, retention, selective early retirement, recall to active duty, fitness reports, and/or employment benefits; (3) made to officiate at Liturgical services; and (4) subjected to general policies that, while not facially discriminatory, disfavored certain aspects of their worship traditions. See, e.g., Consol. Compl. ¶¶ 178-184 (kk) & Addendum A.[5] They claim that each of the practices, policies, and procedures they challenge enabled or permitted other chaplains to discriminate against them, thereby violating their rights under the First and Fifth Amendments and the Religious Freedom and Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, et seq. See generally Consol. Compl. ¶¶ 29-131, 141-164.

Plaintiffs seek sweeping injunctive and declaratory relief that would place this Court in an essentially perpetual oversight role with respect to the Navy's personnel practices. Such relief includes both individually-tailored remedies to repair purported damage to each and every chaplain's career, as well as what Plaintiffs refer to as "fundamental reform, " requiring the Navy to adjust its hiring and retention policies to match religious representation in the greater population. Mot. at 38. Their requested remedies include, but are not limited to:

• A judicial declaration voiding "all personnel actions" made regarding Navy chaplains of any denomination since 1977. Consol. Compl. at 119.
• Reinstatement of separated Non-liturgical chaplains to active duty "until such time as they have been reviewed by legally constituted boards." Id. at 111.

• An order requiring the Navy to "correct the records and remove the prejudice from the affected Non-liturgical chaplain's official career file, take other necessary actions to make plaintiffs whole, and take corrective action to preclude further incidents of prejudice." Id. at 118.

• "Special compensation" for the named Plaintiffs "for the expense, stress and hostility they have endured to bring this action[.]" Id. at 120.

• An order invalidating all of the challenged personnel policies and requiring the Navy to "[d]evelop new policies, guidelines, and regulations that [, ]" among other things, "officially record the religious preference of all Navy personnel"; "[e]nsure that [Non-liturgical] services receive priority or become the main Christian service when Non-liturgicals constitute a majority"; and adjust the CHC's rank structure to reflect religious preference. Id. at 117-19 (emphasis in original).[6]

• A court-ordered "system of checks and balances" monitoring remedial efforts to ensure that consideration of religious considerations is "effectively eliminated" from promotions and career processes, and that future "complaints of religious discrimination are promptly investigated and addressed." Id. at 117-18.

C. Defendants' Response to Plaintiffs' Claims

Defendants deny Plaintiffs' allegations in their entirety. First, they deny that any of the alleged "quota" systems (the so-called "Thirds, " "1 RC" and "2 RC" Policies) ever existed. They point out that the Navy's rules specifically require promotion board members to "be nominated without regard to religious affiliation" and prohibit "[e] xclusion from board membership by reason of gender, race, ethnic origin, or religious affiliation [.]" Defs.' Mot. for P. Summ. J. at 5 [Dkt. No. 46-1] (citations omitted) (citing SECNAVINST 1401.3 ¶ 4(a) & Encl. 1 ¶ 1(c) (1) (e)). They point out further that the Chaplain Corps' personnel policies and Guiding Principles, on which chaplains receive yearly training, expressly prohibit religious discrimination of any type and require that personnel decisions be based on merit alone. Opp'n at 24 (citing SECNAVINST 5350.16A ¶ 7). In accordance with these requirements, Defendants maintain that "[i] ndividual accession decisions are made on the basis of qualifications alone" and that the Navy has consistently endeavored to "access[] the best-qualified candidates irrespective of faith group." Defs.' Mot. for P. Summ. J. at 23, 24 (citations omitted).

Second, Defendants claim that, consistent with its policy of nondiscrimination, the Navy has enacted numerous safeguards to prevent discrimination from infecting selection proceedings and to "protect the rights of all to worship or not worship as they choose." Opp'n at 24 (citing SECNAVINST 5351.1, encl. 4). These safeguards include requiring selection board members to "take an oath to perform [their] duties without prejudice or partiality"; instructing them to "ensure that officers are not disadvantaged because of religion"; and imposing on them a duty to report any belief that board results have been tainted by improper influence or bias. Opp'n at 24 & Ex. 6 (Jan. 23, 2013, Decl. of Commander Jeffrey J. Klinger, USN) ("Klinger Decl.") ¶¶ 26, 27, 29, 59 [Dkt. No. 156-6]; see also Defs'. Mot. for P. Summ. J. at 4 (citing 10 U.S.C. § 613).

Third, Defendants challenge the statistical findings of Plaintiffs' expert, Dr. Leuba, in their entirety. See, e.g., Opp'n at 20-23, 26.[7] They assert that from 1988 until the present, "Non-liturgicals have steadily grown to constitute the largest of the four Faith Group Categories recognized by the Navy for Chaplain Corps personnel management purposes, recently becoming the outright majority of all active duty Chaplains, both overall and at every rank save Rear Admiral." Opp'n at 4.

They claim that "since FY 2002, Non-liturgicals have accessed in greater numbers than any other faith group category [, ]" and now constitute 59. 9 percent of all Chaplain Corps accessions, "compared to Liturgical Protestants at 26.7 percent, Roman Catholics at 7. 2 percent, and Special Worship candidates at 6.3 percent of all accessions, respectively." Id .; see also Decl. of Veronica Berto dated May 20, 2011 ("May 20, 2011, Berto Decl."), Exhibit C [Dkt. No. 156-8]. Moreover, they claim that this representation of Non-liturgical chaplains exceeds "by a significant margin" the overall percentage of Navy personnel that self-identify as belonging to a faith group category within the Non-liturgical category." Opp'n at 26-27 (citing May 20, 2011, Berto Decl., Exs. A & B).[8]

Fourth and finally, and based on the foregoing, Defendants argue that, "[a]t its heart, this consolidated litigation is really a collection of individual employment disputes". in which the proposed class members have only "two principal things in common: (1) they belong to Christian faith groups categorized by the Navy as Non-liturgical for personnel management purposes; and at some point, each sustained one or more adverse (2) personnel decisions, such as failure to promote to the next rank or selection for early retirement." Defs.' P. Mot. to Dismiss at 1 [Dkt. No. 29]. "Beyond that, " Defendants argue, Plaintiffs' "individual cases diverge in numerous ways, depending on when and where they served, what their duties were, to whom they reported and by whom they were supervised, and multiple other factors." Id. at 1-2.

D. Procedural Background

This consolidated case is composed of three cases filed by the same counsel: Chaplaincy of Full Gospel Churches v. England , Civ. No. 99-2945 ("CFGC"); Adair v. England , Civ. No. 00-566 ("Adair"); and Gibson v. Dep't of Navy, Civ. No. 06-1696 ("Gibson"). CFGC and Adair were filed in this Court on November 5, 1999, and March 17, 2000, respectively, and were consolidated for pretrial purposes on September 26, 2000. [Adair Dkt. No. 21]. Gibson was filed in the Northern District of Florida on April 28, 2006, and was subsequently transferred to this District pursuant to 28 U.S.C. § 1404. See Mem. Order of August 17, 2006, at 1 [Gibson Dkt. No. 1]. On June 18, 2007, the Court consolidated all three actions, concluding that they raise "substantially similar constitutional challenges to the Navy Chaplaincy program." Mem. Order of June 18, 2007, at 4 [Dkt. No. 11].

On March 26, 2002, the Adair Plaintiffs filed their first Motion for Class Certification, which the Court granted on August 19, 2002 [Dkt. No. 69]. See Adair v. England , 209 F.R.D. 5 (D.D.C. 2002). Four years later, the Adair Plaintiffs moved to vacate the 2002 Class Certification Order, claiming that, as a result of recent "job changes" and other personal circumstances, "they [we]re no longer willing or able to represent or to assume the burdens inherent in representing the class." Pls.' Mot. to Vacate the Aug. 19, 2002, Order Granting Pls.' Mot. to Certify a Class, at 2 [Adair Dkt. No. 156]. On May 30, 2006, the Court granted this Motion.

The parties engaged in more than five years of active discovery between 2002 and 2009, interspersed with collateral litigation and three interlocutory appeals to our Court of Appeals. In 2012, Judge Ricardo Urbina, who had been assigned to this case, retired and it was reassigned to this Court. At the Court's request, on October 3, 2012, Plaintiffs filed a Consolidated Complaint [Dkt. No. 134] comprised of all of the remaining claims at issue. On December 4, 2012, Plaintiffs filed the instant renewed Motion for Class Certification ("Mot.") [Dkt. No. 147]. On January 23, 2013, Defendants filed their Opposition ("Opp'n") [Dkt. No. 156]. On February 25, 2013, Plaintiffs filed their Reply ("Reply") [Dkt. No. 160]. With permission of the Court, on March 27, 2013, Defendants filed a Sur-Reply ("Sur-Reply") [Dkt. No. 170], and on April 15, 2013, Plaintiffs also filed a Sur-Reply ("Sur-Sur-Reply") [Dkt. No. 178].

II. Subject Matter Jurisdiction Over Plaintiffs' Challenge to the "Thirds Policy"

Before reaching the class certification issue, the Court must address a threshold issue left undecided in one of its prior decisions: whether it has subject matter jurisdiction to consider ...


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