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In re Navy Chaplaincy

United States District Court, District of Columbia

March 16, 2016

IN RE NAVY CHAPLAINCY

MEMORANDUM OPINION

Gladys Kessler United States District Judge.

Table of Contents

I. Background..................................................2

A. The Navy Chaplain Corps....................................3

B. The Navy's Personnel System................................4

C. Plaintiffs' Claims.........................................5

D. Procedural Background......................................7

II. Legal Standard ............................................. 9

A. Standard of Review under Fed.R.Civ.P. 12 (b) (1) ..........9

B. Standing...................................................9

C. Mootness..................................................11

III. Analysis.................................................12

A. "As Applied" Challenges to Alleged Policies...............13

1. Faith Group Accession Goals ............................. 13
2 . Staffing of CARE Boards.................................19
3 . CARE Board Procedures...................................20
4. Former Alleged Recruiting Policy ........................ 21
5. Alleged use of Faith Group Categories ................... 23
6. Alleged Dual Systems of Discipline......................23
7 . SECNAVINST 173 0 . 7C.....................................26
8. Alleged Policy of a General Protestant Service .......... 29
9. Alleged Policy of Reserving Key Billets.................31
10. Alleged Practices Concerning Recalls ................... 32

B. "As Applied" Challenges to Conditions of Chaplain Corps ... 34

C. Challenges to Ad Hoc Actions..............................37

1. Alleged Failure to Consider Prior Reports ............... 37
2. Alleged Interference with Ministries .................... 41
3. Alleged Interference with Prayer ........................ 43

D. Portions of Claims of Specific Plaintiffs.................45

1. Statute of Limitations..................................4 6
2. Exhaustion of Administrative Remedies ................... 4 8

IV. Conclusion................................................52

Plaintiffs are current and former Non-liturgical Protestant chaplains in the United States Navy, their endorsing agencies, and a fellowship of non-denominational Christian evangelical churches. They bring this consolidated action against the Department of the Navy and several of its officials. Plaintiffs allege that Defendants discriminated against Non-liturgical Protestant chaplains on the basis of their 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 Defendants' Motion to Dismiss on Jurisdictional Grounds. Upon consideration of Defendants' Motion [Dkt. No. 217], Plaintiffs' Opposition [Dkt. No. 229], Defendants' Reply [Dkt. No. 235], and the entire record herein, and for the reasons set forth below, Defendants' Motion shall be granted in part and denied in part.

I. BACKGROUND

Only a brief recitation of the facts is necessary at this time since the Court has familiarity with the extensive record in the case, which includes more than twenty written decisions by-Judge Ricardo Urbina when the case was assigned to him, by this Court, and by the Court of Appeals.

A. The Navy Chaplain Corps

The Navy employs a corps of chaplains ("Chaplain Corps" or "CHC") whose mission is to provide for the free exercise of religion by members of the Navy, their dependents, and other authorized persons. In re England, 375 F.3d 1169, 1171 (D.C. Cir. 2004) (citation omitted) . In accordance with this mission. Navy chaplains provide religious education, counseling, and support to sailors and Marines and advise commanders on religious, moral, and ethical issues. Id.

There are over 10 0 faith groups recognized by the Department of Defense, which the Navy has grouped into four "faith group categories" ("FGCs") consisting of: Roman Catholic, Liturgical Protestant, Non-liturgical Protestant, and Special Worship. In re Navy Chaplaincy, 697 F.3d 1171, 1173 (D.C. Cir. 2012) . 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 group includes denominations not covered by the Protestant and Roman Catholic 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.

B. The Navy's Personnel System

Chaplains enter the Navy through a civilian clergy program or a theological student program. Consol. Compl. ¶ 44(c). The term "accession" refers to the process of bringing a qualified individual into the Chaplain Corps as a commissioned officer. Thereafter, they are subject to the same personnel system as other naval officers and must be selected for promotion in rank when the needs of the service require. In re England, 375 F.3d at 1172 (citing 10 U.S.C. § 611(a)). If an officer is considered but not selected for a promotion, he or she is said to have "failed of selection" ("FOS"). Chaplaincy of Full Gospel Churches, 454 F.3d at 293. After failing of selection on two or more occasions, an officer is subject to involuntary separation, known as "selective early retirement." See 10 U.S.C. § 632(a)-(b). However, the Navy may elect to continue an officer on active duty despite two or more failures of selection as its needs require. See 10 U.S.C, § 632(c) (2) .

Each of these decisions regarding a naval officer's career -promotion, selective early retirement, and continuation on active duty - is made by a "selection board" composed of superior officers who act pursuant to statute and regulations prescribed by the Secretary of Defense. See 10 U.S.C. §§ 611, 612.

C. Plaintiffs' Claims

Plaintiffs' Consolidated Complaint contains 18 Counts, many of which contain various claims challenging current and historical aspects of the CHC's personnel system. The following is a small sampling of their claims.

First, they contend that the faith group categories recognized by the Navy are discriminatory and arbitrary. Consol. Compl. ¶¶ 33-38. In particular, they claim that the categories reflect neither religious demographics nor legitimate similarities or differences among the worship traditions represented.

Second, they allege that in the past (but not since at least 2 0 02), the CHC used religious quotas to apportion chaplain opportunities among various faith groups. Consol. Compl. ¶¶ 33-35. In particular, they allege that policies existed requiring one or two Roman Catholic chaplains on selection boards, and that such policies were designed to "stack" selection board proceedings against Non-liturgical candidates and in favor of Roman Catholic and Liturgical Protestant chaplains despite their allegedly declining numbers in the broader population. Consol. Compl. ¶¶ 57(e)-(g). Defendants deny that such policies ever existed.

Third, Plaintiffs challenge a number of facially neutral personnel practices - both current and historical - that they believe have allowed religious bias to infect selection board outcomes. Plaintiffs claim that the practices, taken together, "enable [] 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, 738 F.3d 425, 428 (D.C. Cir. 2013).

Plaintiffs also challenge a practice, which they concede has not existed since 2002, in which "each selection candidate's three-digit 'faith group identifier' code was prominently displayed throughout the selection board process." Consol. Compl. ¶ 86. Plaintiffs contend this practice had no purpose other than "to identify a candidate's faith group to the board" for purposes of permitting the board members "to exercise their individual or faith group prejudice for or against other chaplains or faith groups, particularly against Non-liturgical chaplains." Id. ¶ 87.

Fourth and finally. Plaintiffs seek relief relating to a variety of specific instances in which they allegedly suffered discrimination and free exercise harm while serving in the Chaplain Corps. See e.g., Addendum 1 to Consol. Compl. ¶¶ 12, 37, 41. These include occasions in which Plaintiffs claim to have been: (1) retaliated against, criticized, and removed from their posts based on the content of their religious teachings; (2) treated differently from Liturgical chaplains with respect to disciplinary-issues and employment benefits; (3) required to officiate at Liturgical services; and/or (4) subjected to general policies that, while not facially discriminatory, disfavored certain aspects of their worship traditions. See generally id. ¶¶ 1-65.

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] . On April 28, 2006, Plaintiffs' counsel filed Gibson as a separate putative class action in the Northern District of Florida, and that case was subsequently transferred to this District pursuant to 28 U.S.C. § 1404. See Mem. Order, dated August 17, 2006, at 1 [Gibson Dkt. No. 1]. On June 18, 2007, the Court consolidated all three actions, concluding that they raised "substantially similar constitutional challenges to the Navy Chaplaincy program." Mem. Order, dated June 18, 2007, at 4 [Dkt. No. 11].

Between 2002 and 2009, the parties conducted discovery, interspersed with collateral litigation and three interlocutory appeals to the D, C. Circuit. At this Court's request, on October 3, 2012, Plaintiffs filed a Consolidated Complaint [Dkt, No. 134] comprised of all the claims at issue in the consolidated case.

On September 4, 2014, this Court denied Plaintiffs' Motion for Class Certification [Dkt. No. 192], and on September 26, 2014, granted Defendants' Motion for Partial Summary Judgment on their statute of limitations defense [Dkt. No. 194] . At the Court's request, the parties filed a Joint Status Report on October 24, 2014, listing the remaining claims as well as those Plaintiffs whose claims should be dismissed in their entirety [Dkt. No. 199] . On November 19, 2014, Plaintiffs filed a Rule 54(b) Motion for Modification or Clarification of the Court's Partial Summary Judgment opinion [Dkt. No. 203] . The Court denied Plaintiffs' Rule 54(b) Motion on February 9, 2016 [Dkt. No. 237].

On February 27, 2015, Defendants filed the present Motion to Dismiss on Jurisdictional Grounds ("Motion") [Dkt. No. 217]. Plaintiffs filed their Opposition on August 3, 2015 ("Opp'n") [Dkt. No. 229], and ...


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