This class action lawsuit is the consolidation of three distinct cases against the United States Navy. The first case, Chaplaincy of Full Gospel Churches v. Danzig (1:99-cv-02945-RMU), was filed on November 5, 1999 in the U.S. District Court for the District of Columbia. The second case, Adair v. Danzig (1:00-cv-00566-RMU), was filed on March 17, 2000, also in the D.C. District Court. And the third case, Gibson v. U.S. Navy, was filed on April 28, 2006 in the U.S. District Court for the Northern District of Florida (3:06-cv-00187-MCR-MD) but was then transferred to the D.C. District Court on September 29, 2006 (1:06-cv-01696-RMU). These cases progressed independently until June 18, 2007, at which point they were consolidated into one, thereby creating In re Navy Chaplaincy (1:07-mc-00269-GK).
In order to serve the spiritual needs of its members and their families, the U.S. Navy maintains a chaplain corps which it divides into four broad categories: Roman Catholic, Liturgical Protestant, Non-Liturgical Protestant, and Special Worship. The principal plaintiffs in this case are several current and former chaplains identifying as Non-Liturgical Protestant. Represented by private counsel, these plaintiffs allege that the Navy discriminated against them on the basis of religion, in violation of the First Amendment's Establishment Clause, the Fifth Amendment's Equal Protection Clause, and the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000-bb, et seq. Specifically, the plaintiffs allege that the Navy unconstitutionally established and maintains a discriminatory system for the promotion, assignment, and retention of chaplains in a manner that disadvantages chaplains of non-liturgical Protestant faiths. According to the plaintiffs, the Navy carries out this discrimination through its various selection boards, which are responsible for reviewing the job performance of chaplains for purposes of determining personnel decisions.
I. Dismissal of Two of Plaintiffs' Claims
On February 1, 2000, the defendants filed a motion to dismiss the complaint in the Adair case. Nearly two years later, on January 10, 2002, the District Court (Judge Ricardo M. Urbina) denied defendants' motion to dismiss for all but two of plaintiffs' claims. Adair v. England, 183 F. Supp. 2d 31, 68 (D.D.C. 2002). As Judge Urbina wrote, "[T]he court grants the defendants' motion to dismiss the plaintiffs' claims that chaplains should not rate other chaplains and that more than one chaplain should not sit on a chaplain promotion board." Id. at 60. The plaintiffs requested that the Court reconsider the dismissal of these two claims, but the Court denied their motion on August 5, 2002. Adair v. England, 209 F.R.D. 1, 2 (D.D.C. 2002). In response to this denial, the plaintiffs filed a motion requesting the Court to certify the dismissals as final judgments so that plaintiffs could appeal, but the Court--on May 6, 2004--denied this motion as well. Chaplaincy of Full Gospel Churches v. England, 221 F.R.D. 255, 257 (D.D.C. 2004). Years later, the plaintiffs again requested the court to reconsider its January 10, 2002 ruling, arguing that the reconsideration was warranted due to evidence obtained during the discovery process. But on March 21, 2012, the Court denied this request, just as it had done previously. In re Navy Chaplaincy, 850 F. Supp. 2d 86, 96 (D.D.C. 2012).
II. The Discoverability of the Chaplain Selection Boards
On October 29, 2002, the plaintiffs filed a motion to compel the Navy to release members of its various selection boards from their oaths of confidentiality, thereby allowing them to be deposed about board proceedings. On September 2, 2003, the Court ruled in favor of the plaintiffs. Chaplaincy of Full Gospel Churches v. Johnson, 217 F.R.D. 250, 253 (D.D.C. 2003) rev'd in part, vacated in part sub nom. In re England, 375 F.3d 1169 (D.C. Cir. 2004). However, on July 27, 2004, the D.C. Circuit Court (before Judge Douglas H. Ginsburg, Judge Merrick B. Garland, and Judge John G. Roberts Jr.) reversed in part the District Court's decision, holding that the requested disclosure of information was barred by 10 U.S.C. § 618(f). In re England, 375 F.3d 1169, 1170-71 (D.C. Cir. 2004). Subsequently, the plaintiffs filed a constitutional challenge to § 618(f), arguing that the provision, as applied to them, denies them an opportunity for meaningful judicial review because the evidence barred by § 618(f) is essential to their claims. On September 11, 2006, the District Court rejected this argument and denied plaintiffs' motion for declaratory judgment. Adair v. Winter, 451 F. Supp. 2d 210, 212 (D.D.C. 2006).
Notably, the D.C. Circuit Court's opinion regarding the discoverability of the Navy selection boards was limited to the Navy's promotion boards. In re England, 375 F.3d 1169, 1170-71 (D.C. Cir. 2004). Since the parties did not analyze whether 10 U.S.C. § 618(f) barred disclosure for each selection board independently, the D.C. Circuit Court vacated the District Court's decision and remanded the case for further consideration with respect to the selective early retirement boards and the continuation on active duty boards. Id. at 1182. Once remanded, the District Court (Magistrate Judge John M. Facciola) held on March 7, 2006 that discovery of the selective early retirement board proceedings was not barred by 10 U.S.C. § 501 et seq. Chaplaincy of Full Gospel Churches v. England, 234 F.R.D. 7, 13 (D.D.C. 2006). The defendants moved for reconsideration, which the District Court (Judge Urbina) initially denied on September 11, 2006. Adair v. Winter, 451 F. Supp. 2d 202, 204 (D.D.C. 2006) on reconsideration, sub nom. In re Navy Chaplaincy, 512 F. Supp. 2d 58 (D.D.C. 2007). Ultimately, though, on October 1, 2007, the Court granted the defendants' motion for reconsideration due to a change in law that occurred subsequent to the Court's earlier September 11, 2006 opinion. In re Navy Chaplaincy, 512 F. Supp. 2d 58, 61 (D.D.C. 2007). As the Court explained, "On October 17, 2006, the President signed the National Defense Authorization Act . . . The new federal statute broadened the nondisclosure clause of the Act to include all board deliberations convened under 10 U.S.C. § 611, which includes [selective early retirement] boards . . . ." Id.
III. Standing, and the Existence of Discriminatory Intent.
Throughout the lawsuit, plaintiffs have frequently sought interim preliminary injunctions that would prevent the Navy from carrying out particular policies. The plaintiffs filed one such motion on June 5, 2003, seeking an injunction to prevent the Navy from allowing Catholic chaplains to remain on active duty past the statutory separation age in order to qualify for retirement pay. The court denied this motion on February 7, 2005. Plaintiffs appealed, and on July 7, 2006, the D.C. Circuit Court (before Judge Karen LeCraft Henderson, Judge Judith W. Rogers, and Judge Janice Rogers Brown) issued an opinion affirming the denial of the structural injunction but vacating the District Court's denial of the preliminary injunction. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006). The D.C. Circuit found that the District Court had erred in its determination that the plaintiffs had failed to satisfy the irreparable injury prong of the preliminary injunction framework. Id. at 305. As a result, the D.C. Circuit remanded the case so that the District Court could rule on whether the plaintiffs met the remaining elements necessary for obtaining a preliminary injunction. Id. Once remanded, the District Court--on October 15, 2007--again denied the plaintiffs' motion, holding that the plaintiffs lacked standing to challenge the particular policy for which the plaintiffs were seeking an injunction. In re Navy Chaplaincy, 516 F. Supp. 2d 119, 123 (D.D.C. 2007) aff'd, 534 F.3d 756 (D.C. Cir. 2008). The D.C. Circuit Court (before Judith W. Rogers, Judge Brett M. Kavanaugh, and Judge Laurence H. Silberman) affirmed this decision on August 1, 2008, over a dissent by Judge Rogers. In re Navy Chaplaincy, 534 F.3d 756, 758 (D.C. Cir. 2008).
On July 22, 2011, the plaintiffs filed another motion for a preliminary injunction, this time with respect to three chaplain selection board policies: (1) staffing the seven-member selection boards with two chaplains, (2) enabling board members to keep their votes secret, and (3) allowing the Chief of Chaplains or his deputy to serve as the selection board president. The Court denied the motion on January 30, 2012. In re Navy Chaplaincy, 841 F. Supp. 2d 336 (D.D.C. 2010) rev'd in part, vacated in part, 697 F.3d 1171 (D.C. Cir. 2012). Plaintiffs appealed, and on November 2, 2012, the D.C. Circuit Court (before Judge Karen LeCraft Henderson, Judge Judith W. Rogers, and Judge David S. Tatel) vacated the denial and remanded so that the District Court could clarify its reasoning on the plaintiffs' likelihood of success on the merits. In re Navy Chaplaincy, 697 F.3d 1171, 1180 (D.C. Cir. 2012). Specifically, the D.C. Circuit was unsure whether the District Court viewed the insufficiency of the plaintiffs' claims to be legal or factual. Id. Once the case was remanded, the District Court (Judge Gladys Kessler) on February 28, 2013 again denied plaintiffs' motion for a preliminary injunction. In re Navy Chaplaincy, 928 F. Supp. 2d 26 (D.D.C. 2013) aff'd, 738 F. 3d 425 (D.C. Cir. 2013). The plaintiffs offered evidence that non-liturgical Protestant chaplain candidates for promotion were less likely to be successful than other chaplain candidates, but the discrepancy was only 10 percentage points. The Court's ruling was based on its determination that these statistics failed to show any discriminatory intent behind the challenged policies, or in their implementation. Id. The D.C. Circuit Court (before Judge David S. Tatel, Judge Brett M. Kavanaugh, and Judge Stephen F. Williams) affirmed this decision on December 27, 2013, emphasizing that the statistical study had failed to include any controls (for experience, etc.), and therefore did not suggest that plaintiffs were likely to succeed on the merits. In re Navy Chaplaincy, 738 F.3d 425 (D.C. Cir. 2013).
The case is ongoing; motions for summary judgment have been filed by both sides and are pending. Jordan Rossen - 02/16/2014