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In re Navy Chaplaincy

United States District Court, District of Columbia

August 30, 2018




         More than a decade ago, these consolidated cases were brought by a group of Protestant U.S. Navy chaplains who allege that the Navy has discriminated against them in various ways because of their faith. Though plaintiffs' consolidated complaint runs over one hundred pages and asserts eighteen separate counts, prior rulings in this case have whittled their claims down to nine, six of which are currently before the Court on cross-motions for summary judgment. Each of these claims relates to the so-called “selection boards” that the Navy uses to select chaplains (and all other commissioned officers) for promotion and, in some cases, for involuntary retirement.

         Plaintiffs' primary claim is that, until 2002, the Navy maintained an unconstitutional policy of placing at least one Roman Catholic chaplain on every selection board, which resulted in Catholic chaplains being promoted at a disproportionately high rate compared to other religious groups. Plaintiffs also challenge a host of other allegedly unconstitutional selection-board policies and procedures-some of which, plaintiffs claim, continue to this day. Finally, plaintiffs challenge a statute that privileges selection-board deliberations from disclosure in litigation, arguing that it is unconstitutional as applied to their case because it denies them access to information that they need to prove their constitutional claims. To redress these wrongs, plaintiffs-each of whom was either passed over for promotion or selected for early retirement by a board that was allegedly tainted by one or more of the challenged procedures-seek an order directing the Navy to reinstate them to active duty, if necessary, and to convene new, properly constituted selection boards to reconsider the personnel actions taken against them. Alternatively, plaintiffs ask the Court to permit them to take further discovery to prove their claims.

         To a considerable extent, the result in this case is dictated by prior rulings of both the D.C. Circuit and this Court. The legal standards applicable to plaintiffs' challenges to the selection-board policies and procedures were laid out several years ago by the D.C. Circuit in this very litigation. Consequently, there is little left to do here but to apply those standards to the evidence adduced by the parties on summary judgment-which, as explained below, does not even come close to showing the degree of discrimination required for plaintiffs' challenges to succeed. Likewise, this Court has already twice considered and twice rejected plaintiffs' constitutional challenge to the statutory privilege for selection-board proceedings, and plaintiffs offer no persuasive reason to reach a different conclusion this time around. Plaintiffs' motions for summary judgment as to these claims will therefore be denied, and the Navy's will be granted. Finally, because plaintiffs have had ample opportunity to conduct discovery previously in this litigation, and because they would be unlikely to prevail on their claims even if they were permitted to take further discovery, plaintiffs' requests for additional discovery will be denied.


         I. The Navy Chaplain Corps

         The Navy employs a corps of over 800 chaplains to serve the religious needs of service members deployed across the United States and throughout the world. In re England, 375 F.3d 1169, 1171 (D.C. Cir. 2004). In addition to performing religious services, Navy chaplains provide service members with counseling and ethics instruction, and they sometimes advise naval officers on the moral and ethical implications of their decisions. Id. Chaplains have performed these and other important functions aboard U.S. Navy ships since the Founding. Id.

         Plaintiffs are thirty-nine Protestant chaplains who belong to denominations that the Navy categorizes as “non-liturgical” because their services do not follow a set liturgy (that is, a prescribed order of worship). Id. at 1172. Protestant denominations falling within this category include Baptism, Evangelicalism, and Pentecostalism; conversely, “liturgical” denominations include Methodism, Lutheranism, and Presbyterianism. Id. At all times relevant to this litigation, for administrative purposes, the Navy treated liturgical Protestants, non-liturgical Protestants, and Roman Catholics as three distinct “faith group categories”; a fourth and final category, “Special Worship, ” included all other Christian denominations, as well as all other religions. Id. The Navy used these faith group categories to document service members' religious needs and to ensure that those needs were being met.

         Although chaplains' religious role within the Navy is unique, chaplains progress through the Navy's promotion system in the same manner as all other commissioned officers. See, e.g., 10 U.S.C. § 624 (describing the promotion process); id. § 638 (providing for the involuntary “selective early retirement” of an officer who has been considered but not selected for a promotion either a certain number of times or after a certain number of years, depending on the officer's rank). To be promoted to the next rank, a chaplain must be recommended by a “selection board.” 10 U.S.C. § 611(a). That board must consist of at least five officers, all of whom must rank higher than the candidates under consideration, id. § 612(a)(1), and at least one of whom must be a chaplain, id. § 612(a)(2)(A); see In re England, 375 F.3d at 1172 (“[I]f a selection board is considering chaplains, at least one board member must be a chaplain.”). The same requirements apply to a board convened to select chaplains for early retirement. See 10 U.S.C. § 611(b).

         The convening of selection boards is further governed by Navy regulations. See id. § 611(c).[1] Initially, during the time frame relevant here, Navy regulations required that each chaplain selection board consist of “five or more” officers, at least one of whom was not a chaplain. SECNAVINST 1401.3, Encl. 1 ¶ 1(c)(1). The Navy would then seek to fill the remaining seats, to the extent practicable, with “a mix of qualified and available chaplains from the different Faith Group Categories.” See Decl. of Captain Stephen B. Rock (“Rock Decl.”) [ECF No. 281-2] ¶ 8. Beginning in 2003, however, the Secretary of the Navy directed that chaplain selection boards be composed of five non-chaplain officers and two chaplains. See Decl. of Commander James Francis Buckley (“Buckley Decl.”) [ECF No. 281-23] ¶ 3. Then, in 2005, the Navy formally amended its regulations to require that “Chaplain Corps boards shall include five [non-chaplain] officers as members, and two members from the Chaplain Corps.” SECNAVINST 1401.3A, encl. 1 ¶ 1(c)(1)(f).

         Statutory and regulatory requirements also prohibit unlawful discrimination by selection boards (or by those tasked with convening them). For example, by statute, selection board members must swear an oath to fulfill their duties “without prejudice or partiality and having in view both the special fitness of officers and the efficiency of [the Navy].” 10 U.S.C. § 613. Navy regulations further provide that “[e]xclusion from board membership by reason of gender, race, ethnic origin, or religious affiliation is prohibited.” SECNAVINST 1401.3 ¶ 4(a); SECNAVINST 1401.3A ¶ 4(a). They also specifically state that members of chaplain selection boards “shall be nominated without regard to religious affiliation.” SECNAVINST 1401.3, encl. 1 ¶ (1)(c)(1)(e); SECNAVINST 1401.3A, encl. 1 ¶ (1)(c)(1)(f). Similarly, during the relevant time period, “precepts” addressed to individual selection boards instructed those boards to “ensure that officers are not disadvantaged because of their race, creed, color, gender, or national origin.” See, e.g., Precept Convening FY-02 Promotion Selection Board [ECF Nos. 281-20] at C-1.

         II. Procedural History

         The plaintiffs in this consolidated litigation are a group of non-liturgical Protestant chaplains who claim that they were either denied a promotion or selected for early retirement because of their religious affiliation. See generally Consolidated Compl. (“Compl.”) [ECF No. 134] add. A. Over its nearly twenty-year life span, plaintiffs' case has been before the D.C. Circuit at least five times, seen the retirement of two district judges, and generated over a thousand pages of briefing on dispositive motions. Its history is nothing if not complex.

         A. Church of Full Gospel Chaplains v. Danzig and Adair v. Winter

         The first two of the three cases consolidated in this action were filed in this district in 1999 and 2000, see Chaplaincy of Full Gospel Churches v. Danzig (“CFGC”), Civil Action No. 99-2945 (D.D.C. filed Nov. 5, 1999); Adair v. Winter, Civil Action No. 00-566 (D.D.C. filed Mar. 17, 2000), and later consolidated before Judge Ricardo Urbina. The plaintiffs-many of whom remain in the litigation to this day-asserted constitutional claims related to the hiring, promotion, and retention of chaplains, see Adair v. England, 183 F.Supp.2d 31, 55-63 (D.D.C. 2002); the treatment of non-liturgical Protestants within the chaplaincy, see id. at 63-67; and individual alleged instances of constructive discharge and retaliation, see id. at 67. The Navy moved to dismiss their claims for lack of jurisdiction and failure to state a claim, but Judge Urbina denied the motion as to most claims. See id. at 68. Judge Urbina later granted the plaintiffs' motion for class certification, see Adair v. England, 209 F.R.D. 5, 13 (D.D.C. 2002), and the cases proceeded to discovery, see Aug. 27, 2002 Order, CFGC, ECF No. 119; Aug. 27, 2002 Order, Adair, ECF No. 72.

         Soon thereafter, a dispute arose over plaintiffs' request to depose members of prior chaplain selection boards. At the time, a federal statute provided that, “[e]xcept as authorized or required by this section, proceedings of a selection board convened under [10 U.S.C. §] 611(a)”- that is, selection boards for promotions but not for early retirement-“may not be disclosed to any person not a member of the board.” 10 U.S.C. § 618(f). Nevertheless, Judge Urbina granted the plaintiffs' motion, concluding that § 618(f) did not apply in litigation because it “does not contain specific language barring discovery” and “because of the circuit's emphasis on providing litigants full access to relevant information.” Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250, 260 (D.D.C. 2003).[2]

         The Navy appealed, and the D.C. Circuit reversed, explaining that “[d]isclosure of selection board proceedings in civil discovery would certainly undermine, if not totally frustrate, the purpose of Section 618(f).” In re England, 375 F.3d at 1178. The D.C. Circuit also rejected plaintiffs' reliance on the Supreme Court's statement in Webster v. Doe that “where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear, ” 486 U.S. 592, 603 (1988), explaining that here, plaintiffs “remain free to litigate their discrimination claims and to support them with other evidence.” Id. at 1180 n.2. Hence, the court concluded, § 618(f) “applies to block civil discovery of promotion selection board proceedings in civil litigation.” Id. at 1181 (emphasis added). But because the statutory language referred only to “section 611(a)” of Title 10, which governs the convening of promotion boards, while the convening of selective early retirement boards is governed by § 611(b) of that title, the D.C. Circuit remanded for the district court to consider in the first instance whether § 618(f) applied to the proceedings of selective early retirement boards. Id. at 1181-82.

         On remand, plaintiffs argued not only that § 618(f) was inapplicable to selective early retirement boards, as the D.C. Circuit had suggested, but also that it was unconstitutional as applied to their discovery requests for promotion board proceedings, because it deprived them of evidence that they needed to prove their constitutional claims. Judge Urbina agreed with plaintiffs as to the first point, see Adair v. Winter, 451 F.Supp.2d 202, 206 (D.D.C. 2006) (allowing discovery of selective early retirement board proceedings), but not the second, see Adair v. Winter, 451 F.Supp.2d 210, 212 (D.D.C. 2006) (barring discovery of promotion board proceedings). In his view, § 618(f) was constitutional as applied to plaintiffs both because promotion board proceedings were not essential to their claims, see id. at 217-19, and because in any case there was no “constitutional right of access to evidence essential to establishing constitutional claims, ” id. at 220.

         A little more than a month after Judge Urbina's rulings, Congress enacted the John Warner National Defense Authorization Act, Pub. L. No. 109-364, § 547(a)(2), 120 Stat. 2083, 2216 (2006), which repealed § 618(f) and replaced it with 10 U.S.C. § 613a. Section 613a clarified that “[t]he proceedings of a selection board convened under section . . . 611 . . . of this title may not be disclosed to any person not a member of the board”; by its terms, therefore, the new statute applied to selective early retirement boards. Moreover, § 613a explicitly states that:

The discussions and deliberations of a selection board . . . and any written or documentary record of such discussions and deliberations-(1) are immune from legal process; (2) may not be admitted as evidence; and (3) may not be used for any purpose in any action, suit, or judicial or administrative proceeding without the consent of the Secretary of the military department concerned.

10 U.S.C. § 613a(b). The statute also specifies that it “applies to all selection boards . . . regardless of the date on which the board was convened.” Id. § 613a(c). Following the enactment of § 613a, Judge Urbina granted the Navy's motion for reconsideration of his decision allowing discovery of selection-board proceedings, concluding that those materials were no longer discoverable. See In re Navy Chaplaincy, 512 F.Supp.2d 58, 61 (D.D.C. 2007).

         B. Gibson v. United States Navy and In re Navy Chaplaincy

         Earlier in 2006, following what the Navy called a series of “tactical defeats” suffered by plaintiffs in CFGC and Adair, [3] a third case was filed in the Northern District of Florida. See Gibson v. U.S. Navy, Civil Action No. 3:06-187 (N.D. Fla. filed Apr. 28, 2006). The Gibson plaintiffs-again, a group of non-liturgical Protestant chaplains-were represented by the same counsel as the plaintiffs in Adair and CFGC and, according to the Navy, asserted “nearly identical” claims. Aug. 17, 2006 Order at 2, Gibson, ECF No. 33. The Navy successfully moved to transfer Gibson to this Court, see Order, Gibson v. U.S. Navy, Civil Action No. 06-1696 (D.D.C. Sep. 29, 2006), ECF No. 1, and proceedings were later stayed pending the Navy's motion to consolidate the case with Adair and CFGC and a series of appeals related to the Northern District of Florida's transfer order. See Nov. 7, 2006 Min. Order, Gibson (imposing stay); July 3, 2008 Min. Order, In re Navy Chaplaincy (lifting stay). In 2007, the three cases were consolidated and captioned In re Navy Chaplaincy. See June 18, 2007 Mem. Order at 4, Gibson, ECF No. 11 at 4-5.

         In late 2008 and early 2009, once the appeals related to Gibson's transfer were resolved, the parties filed a series of dispositive motions in the newly consolidated cases. While the briefing on these motions was pending, plaintiffs served a new set of discovery requests, which prompted the Navy to request a stay of discovery pending the resolution of the motions. The Court granted this request “informally” in July 2009. See Mem. of P & A in Opp'n to Pls.' Mot. to Lift Disc. Stay (“Navy's Disc. Opp'n”) [ECF No. 263] at 9; Case Mgmt. Order #1 at 3 [ECF No. 124].

         In 2011, while briefing on the dispositive motions was still pending, plaintiffs moved for a preliminary injunction prohibiting the Navy from implementing three selection-board procedures: “(1) staffing the seven-member selection boards with two chaplains, (2) enabling members to keep their votes secret . . ., and (3) allowing the Chief of Chaplains or his deputy to serve as the selection board president.” In re Navy Chaplaincy, 738 F.3d 425, 427 (D.C. Cir. 2013); see Pls.' Mot. for Prelim. Inj. [ECF No. 95]. Judge Urbina denied plaintiffs' motion in January 2012, concluding that plaintiffs lacked standing and that, in any case, they were unlikely to succeed on the merits of their claims. See Jan. 30, 2012 Mem. Op. [ECF No. 108] at 8-12. On appeal, the D.C. Circuit reversed Judge Urbina's determination that plaintiffs lacked standing and remanded for clarification as to whether the district court viewed the insufficiency of the chaplains' claims to be “legal or factual.” See In re Navy Chaplaincy, 697 F.3d 1171, 1173, 1180 (D.C. Cir. 2012). On remand, the district court (now Judge Gladys Kessler, see infra) again denied plaintiffs' motion, explaining that plaintiffs' constitutional claims were unlikely to succeed on the merits because plaintiffs had provided no “evidence demonstrating that Defendants intentionally discriminated against them.” In re Navy Chaplaincy, 928 F.Supp.2d 26, 33-37 (D.D.C. 2013). This time, the D.C. Circuit affirmed. See In re Navy Chaplaincy, 738 F.3d at 428.

         In early 2012, while plaintiffs' appeal of the preliminary injunction ruling was still pending, Judge Urbina resolved one of the dispositive motions that was then pending in the underlying case, see In re Navy Chaplaincy, 850 F.Supp.2d 86, 105-117 (D.D.C. 2012) (granting in part and denying in part the Navy's 2008 motion to dismiss on exhaustion, standing, and mootness grounds and for failure to state a claim), and retired soon thereafter. The case was then reassigned to Judge Gladys Kessler.

         C. Proceedings Before Judge Kessler

         In July 2012, Judge Kessler entered a comprehensive case management order. See Case Mgmt. Order #1. Among other things, the order: (1) directed plaintiffs to file a new, consolidated complaint, see id. at 2; (2) continued the discovery stay, see id. at 3, apparently based on the Navy's representation that it intended to file a motion to dismiss on jurisdictional grounds, see Pls.' Mot. to Lift the Current Disc. Stay for All Remaining Claims (“Pls.' Disc. Mot.”) [ECF No. 255] at 5; and (3) directed the parties to file motions on class certification and statute-of-limitations issues, see Case Mgmt. Order #1 at 3. Judge Kessler also denied the pending dispositive motions without prejudice. See July 25, 2012 Minute Order.

         Pursuant to Judge Kessler's case management order, plaintiffs filed a 120-page consolidated complaint asserting eighteen separate counts, see Compl. at 28-108, [4] and a motion for class certification, see Pls.' Mot. for Class Certification [ECF No. 147], and the Navy filed a motion for partial summary judgment on statute-of-limitations grounds, see Defs.' Mot. for Partial Summ. J. as to Claims that Accrued Outside the Limitations Period [ECF No. 159]. Due to a number of extensions in the briefing schedules on these motions, [5] they were not resolved until September 2014, when Judge Kessler denied plaintiffs' motion for class certification, see In re Navy Chaplaincy, 306 F.R.D. 33, 38 (D.D.C. 2014), and granted defendants' motion for partial summary judgment on statute-of-limitations grounds, see In re Navy Chaplaincy, 69 F.Supp.3d 249, 251 (D.D.C. 2014). Specifically, Judge Kessler concluded that any claim filed “more than six years after finalization of the policies and personnel actions on which [it was] based” was time-barred. Id. at 256 (citing 28 U.S.C. § 2401(a)). The parties later stipulated that this ruling required the dismissal of twenty-three of the sixty-five individual plaintiffs then in the action, all of whose alleged adverse personnel actions had taken place prior to the applicable six-year statute of limitations cutoff (1993 for the CFGC plaintiffs, 1994 for the Adair plaintiffs, and 2000 for the Gibson plaintiffs). See Status Report [ECF No. 199] at 2 n.1, 4-5. The Court later held that one additional plaintiff, Thomas Rush, fell outside the statute-of-limitations period for similar reasons. See In re Navy Chaplaincy, 170 F.Supp.3d 21, 44 (D.D.C. 2016).

         In early 2015, the Navy filed another motion to dismiss, this time on standing and other jurisdictional grounds. See Defs.' Mot. to Dismiss on Jurisdictional Grounds [ECF No. 217]. Judge Kessler granted that motion in part and denied it in part in early 2016. See In re Navy Chaplaincy, 170 F.Supp.3d at 27, 31-46. Specifically, Judge Kessler dismissed: (1) ten distinct claims related to “several of the Navy's alleged policies or practices relating to accession, personnel management, promotions, and career transition, ” id. at 31; (2) claims alleging a “culture of bias and hostility toward Non-liturgical chaplains, ” id. at 39; (3) other “claims alleging ad hoc actions against certain Plaintiffs, ” except for one claim alleging interference with prayer, id. at 40, 44; and (4) certain other individual claims that fell outside the limitations period, see id. at 44-46. The order accompanying Judge Kessler's opinion detailed the nine claims in the consolidated complaint that survived dismissal on jurisdictional and statute-of-limitations grounds:

1. Plaintiffs' challenge to the alleged policy of staffing one Roman Catholic chaplain on each promotion board since November 5, 1993 [six years before CFGC, the earliest of the three consolidated cases, was filed], set forth in Counts 2 and 4;
2. Plaintiffs' challenge to the inclusion of the Chief of Chaplains as president of certain promotion boards since November 5, 1993, set forth in Count 4;
3. Plaintiffs' challenge to the use of procedures employed by promotion boards since November 5, 1993, set forth in Counts 2 and 4;
4. Plaintiffs' challenge to the use of procedures employed by Selective Early Retirement (“SER”) boards since November 5, 1993, set forth in Counts 2 and 4;
5. Plaintiffs' constitutional challenge to 10 U.S.C. § 613(a), set forth in Count 16;
6. Plaintiffs' claims under the Religious Freedom Restoration Act, 42 U.S.C. § 2000-bb et seq., set forth in Count 14;
7. Plaintiffs' challenge to the alleged constructive discharge of certain Plaintiffs since November 5, 1993, set forth in Count 11;
8. Plaintiffs' challenge to alleged retaliation against certain Plaintiffs since November 5, 1993, set forth in Count 12;
9. Plaintiffs' challenge to alleged instances of interference with the form of prayer of certain Plaintiffs since November 5, 1993, set forth in Count 9.

March 16, 2016 Order at 4-5 [ECF No. 238].

         In November 2016, following a status conference at which plaintiffs asked that the discovery stay be lifted, the Court entered a scheduling order dividing plaintiffs' remaining claims into three groups and continuing the stay. See Nov. 18, 2016 Order [ECF No. 246]. The Court's order directed that, of the nine claims listed in its March 16, 2016 order, the first six would be addressed through summary judgment briefing, with the remaining three to be addressed thereafter. See Pls.' Proposal to Move the Case Forward [ECF No. 245] at 4.[6] Thus, the Court ordered three rounds of summary judgment briefing: first, as to the constitutionality of 10 U.S.C. § 613a as applied to plaintiffs in this litigation (“Claim 1”);[7] second, as to the Navy's alleged policy of placing one Roman Catholic chaplain on every chaplain selection board convened before late 2002, when the Navy began staffing the boards with only two chaplains (“Claim 2”);[8] and third, as to plaintiffs' remaining challenges to selection-board procedures, as well as their parallel challenges under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb-1 to - 4 (“Claim 3”).[9] See Nov. 18, 2016 Order at 1-2; Pls.' Proposal to Move the Case Forward at 3- 4. The Court also continued the existing discovery stay. See Nov. 18, 2016 Order at 2.

         Plaintiffs then filed a memorandum explaining their need for further discovery, see Pls.' Mem. Supporting Limited Disc. [ECF No. 247], but the Court ordered the parties to adhere to its November 2016 schedule, noting that plaintiffs had not requested relief by motion, see Jan. 10, 2017 Order [ECF No. 253]. Plaintiffs then filed a motion to lift the discovery stay in March 2017. See Pls.' Disc. Mot. Later that year, plaintiffs filed another motion-styled as a motion under Federal Rule of Civil Procedure 56(d)-to stay summary judgment briefing until the discovery stay was lifted. See Pls.['] Rule 56(d) Mot. [ECF No. 292]. Both motions are currently pending.

         D. Proceedings Before This Court

         In October 2017, while briefing on the parties' summary judgment and discovery motions was underway, Judge Kessler retired, and this case was reassigned to the undersigned judge. The Court later set a hearing on the pending motions and advised the parties that although it “ha[d] reviewed and taken under advisement [255] plaintiffs' motion to lift the discovery stay, ” it ...

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