Consolidation of Three Lawsuits
This class-action lawsuit is the consolidation of three distinct cases against the United States Navy:

1. Chaplaincy of Full Gospel Churches v. Danzig, filed November 5, 1999 in the U.S. District Court for the District of Columbia (docket number 1:99-cv-02945-RMU)
2. Adair v. Danzig, filed March 17, 2000 in the U.S. District Court for the District of Columbia (docket number 1:00-cv-00566-RMU)
3. Gibson v. U.S. Navy, filed April 28, 2006 in the U.S. District Court for the Northern District of Florida (docket number 3:06-cv-00187-MCR-MD), transferred to the D.C. District on September 29, 2006 (docket number 1:06-cv-01696-RMU)

The cases were consolidated as In re Navy Chaplaincy on June 18, 2007, and assigned to Judge Ricardo M. Urbina.

In order to serve the spiritual needs of its personnel and their families, the Navy maintains a chaplain corps, divided 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 the Rutherford Institute, these plaintiffs alleged 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 alleged that the Navy unconstitutionally established and maintained a discriminatory system for the promotion, assignment, and retention of chaplains in a manner that disadvantaged chaplains of non-liturgical Protestant faiths. The plaintiffs’ primary claim was 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 (they also challenged a number of other selection board policies and procedures). Finally, they challenged a statute that protects selection board deliberations from disclosure in litigation, arguing that it was unconstitutional as applied to their case because it denied them access to information that they needed to prove their constitutional claims. The plaintiffs sought a declaration that the challenged policies were unlawful, and an injunction directing the Navy to cease those challenged policies that were still in place and to develop a monitoring system.

Dismissal of Two Claims
On February 1, 2000, the Navy moved to dismiss the Adair complaint. Nearly two years later, on January 10, 2002, the court dismissed two of the claims, which pertained to the composition of selection boards and the promotion process. Adair v. England, 183 F. Supp. 2d 31. The plaintiffs moved for the court to reconsider the dismissal of these two claims, but their motion was denied on August 5, 2002. 209 F.R.D. 1. In response to this denial, the plaintiffs moved for the court to certify the dismissals as final judgments for the purpose of appeal; the court denied this motion as well, on May 6, 2004. Chaplaincy of Full Gospel Churches v. England, 221 F.R.D. 255. Years later, the plaintiffs again moved for reconsideration of the 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 again denied the motion. In re Navy Chaplaincy, 850 F. Supp. 2d 86.

Discoverability of Chaplain Selection Boards’ Deliberations
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. However, on July 27, 2004, the D.C. Circuit Court (Judges Douglas H. Ginsburg, Merrick B. Garland, and John G. Roberts, Jr.) reversed the district court’s decision in part, holding that 10 U.S.C. §618(f) barred the disclosure of selection board deliberations. In re England, 375 F.3d 1169 (D.C. Cir. 2004). Subsequently, the plaintiffs filed a constitutional challenge to §618(f), arguing that the provision, as applied to them, denied them an opportunity for meaningful judicial review because the evidence barred by §618(f) was essential to their claims. On September 11, 2006, the district court rejected this argument and denied the plaintiffs’ motion for declaratory judgment. Adair v. Winter, 451 F. Supp. 2d 210.

Notably, the D.C. Circuit’s opinion regarding the discoverability of selection board deliberations was limited to promotion boards only. Since the court had not analyzed whether 10 U.S.C. §618(f) barred disclosure for each type of selection board independently, the D.C. Circuit vacated the district court’s decision and remanded the case for further consideration with respect to selective early retirement selection boards and active duty continuation selection boards. The district court subsequently held on March 7, 2006 that the statute did not bar discovery of selective early retirement board proceedings. Chaplaincy of Full Gospel Churches v. England, 234 F.R.D. 7. The Navy moved for reconsideration, which the district court initially denied on September 11, 2006. Adair v. Winter, 451 F. Supp. 2d 202.

However, the National Defense Authorization Act of October 17, 2006 struck §618(f), and replaced it with language granting explicit immunity for all selection boards. Their “discussions and deliberations” could not be admitted as evidence or used in a lawsuit without the consent of the Secretary of the Navy. Therefore the district court, on October 1, 2007, revisited and granted the Navy’s motion for reconsideration. In re Navy Chaplaincy, 512 F. Supp. 2d 58.

Standing and Discriminatory Intent
Throughout the lawsuit, the plaintiffs frequently sought 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. The plaintiffs appealed, and on July 7, 2006, the D.C. Circuit Court (Judges Karen LeCraft Henderson, Judith W. Rogers, and Janice Rogers Brown) affirmed the district court’s denial of the structural injunction, but vacated its denial of a preliminary injunction. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290. The district court had wrongly concluded that the plaintiffs failed to satisfy the irreparable injury prong of the preliminary injunction framework. As a result, the D.C. Circuit remanded the case for the district court to rule on whether the plaintiffs met the remaining elements necessary for a preliminary injunction. On October 15, 2007, the district court again denied the plaintiffs’ motion, this time holding that they lacked standing to challenge the policy in question. In re Navy Chaplaincy, 516 F. Supp. 2d 119. The D.C. Circuit (Judges Judith W. Rogers, Brett M. Kavanaugh, and Laurence H. Silberman) affirmed this decision on August 1, 2008. In re Navy Chaplaincy, 534 F.3d 756.

On July 22, 2011, the plaintiffs again filed 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’s president.

The district court again denied the preliminary injunction, on January 30, 2012. In re Navy Chaplaincy, 841 F. Supp. 2d 336. The plaintiffs appealed, and on November 2, 2012, the D.C. Circuit (Judges Karen LeCraft Henderson, Judith W. Rogers, and David S. Tatel) vacated the denial and remanded for the district court to clarify its reasoning on the plaintiffs’ likelihood of success on the merits of their claim. In re Navy Chaplaincy, 697 F.3d 1171. Specifically, the D.C. Circuit was unsure whether the district court viewed the insufficiency of the plaintiffs’ claims to be legal or factual. On February 28, 2013 the district court (now Judge Gladys Kessler) again denied the preliminary injunction. In re Navy Chaplaincy, 928 F. Supp. 2d 26. Although the plaintiffs had offered evidence that non-liturgical Protestant chaplains were less likely to be promoted than other chaplains, the discrepancy was only 10 percentage points; the court’s ruling reflected its conclusion that the statistics failed to show discriminatory intent in the policies or their implementation. The D.C. Circuit (Judges David S. Tatel, Brett M. Kavanaugh, and 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 the plaintiffs were likely to succeed on the merits. In re Navy Chaplaincy, 738 F.3d 425.

When Judge Gladys Kessler received the case in 2012, she had extended a stay of discovery imposed by Judge Urbina in 2009. In November 2012, she issued an order reiterating that stay. 287 F.R.D. 100.

Class Certification
The court denied class certification on September 4, 2014. 306 F.R.D. 33. The opinion addressed, as a threshold matter, whether the court had subject matter jurisdiction to hear the complaint regarding the Navy’s chaplain promotion policies. As the promotion policy had been discontinued in 2001, and as there was no evidence that the Navy planned to reenact the policy, the plaintiffs’ claims for declaratory and injunctive relief were moot. The court also held that the plaintiffs lacked standing to challenge the policy: they had failed to establish that their alleged injury (increased workload) was redressable by the relief sought, because they had not demonstrated that their past workloads had any lasting adverse effects that could be remedied. Thus, the court dismissed the plaintiffs’ promotion policy claims.

Regarding class certification, the plaintiffs had sought to certify a class of up to 2500 “present and former non-liturgical Navy chaplains, active duty and Reserve, who were in the Navy or have served in the Navy” between 1976 and the present. While the numerosity requirement was met, the plaintiffs failed to satisfy the commonality, typicality, and adequacy-of-representation requirements. Regarding commonality, the court drew heavily on the analysis in Walmart v. Dukes and held that the plaintiffs failed to demonstrate the existence of a common answer to the question of why each individual plaintiff was disfavored. With respect to typicality, the court held that the plaintiffs failed to show that their claims arose “from the same course of events” or were otherwise typical of the absent class members’ claims. Finally, regarding adequacy of representation, the court found that there was a conflict of interest between the class representatives and the class members, as the former’s interest in wide-ranging institutional reform was likely in conflict with the latter’s interest in obtaining individualized monetary relief. The court also noted that the class representatives were willing to draw divisions among members of the proposed class, which strongly indicated that they could not be fair and impartial representatives of the class as a whole. Additionally, the court held that even if the plaintiffs had met the requirements of Federal Rule of Civil Procedure 23(a), they failed to establish that the class was maintainable under one of the subdivisions of Rule 23(b).

Cross Motions for Partial Summary Judgment
On September 26, 2014, the court granted the Navy’s motion for partial summary judgment and denied the plaintiffs’ cross motion for summary judgment. 69 F.Supp.3d 249. The Navy had relied on the six-year statute of limitations set forth in 28 U.S.C. §2401(a) to argue that many of the plaintiffs’ claims were barred, as they were filed more than six years after finalization of the policies and personnel actions on which the claims were based. The plaintiffs had argued that their claims had not accrued until the plaintiffs had discovered the discriminatory nature of the Navy’s practices. In the alternative, they had argued that the court should apply equitable tolling doctrines to permit the claims to proceed. The court held that the plaintiffs’ claim was time-barred and the equitable tolling doctrine did not apply.

The Navy’s Motion to Dismiss
On February 27, 2015, the Navy filed a motion to dismiss on jurisdictional grounds. The motion addressed challenges to the plaintiffs’ remaining claims in three categories:

1. as-applied challenges to personnel policies or practices;
2. as-applied challenges to conditions of hostility and bias; and
3. challenges to ad hoc actions against certain plaintiffs.

On March 16, 2016, the court granted the motion in part and denied it in part. With respect to the first category, the court found that the plaintiffs did not satisfy the injury-in-fact or redressability prongs of standing to challenge alleged personnel policies or practices. Regarding the second category, the court found that the plaintiffs failed to establish standing to challenge the alleged cultures of bias and hostility. Finally, the court found that the plaintiffs had alleged injury-in-fact and redressability sufficient to support standing to challenge the defendants’ alleged ad hoc actions against certain plaintiffs. In re Navy Chaplaincy, 170 F. Supp. 3d 21.

Cross Motions for Summary Judgment
In 2017, both parties filed cross motions for summary judgment. The plaintiffs also filed several motions to lift the stay on discovery that was then in place.

On August 30, 2018, the district court (now Judge John D. Bates) denied the plaintiffs’ motions for additional discovery and for summary judgment, instead granting the Navy’s summary judgment motion on six of the nine claims still remaining (calling those six claims the “systemic claims”). Specifically, the court held that because the plaintiffs had failed to establish that the Navy’s board-staffing policies lacked a rational basis, they failed to make out their constitutional challenge to the Navy’s alleged policy of placing one Catholic chaplain on every chaplain selection board. Further, the court held that the plaintiffs’ challenges to the selection board policies at issue failed for essentially the same reason that they had previously failed to secure a preliminary injunction against those policies: they had failed to demonstrate that the challenged policies either were facially discriminatory, were adopted with discriminatory intent, or had a stark enough disparate impact on non-liturgical Protestant chaplains that discriminatory intent could be inferred. The court also denied the plaintiffs’ challenge to the constitutionality of 10 U.S.C. §613a (the ban on the disclosure of selection board proceedings). In re Navy Chaplaincy, 323 F. Supp. 3d 25.

The plaintiffs’ three remaining claims, which the court referred to as the “ad hoc claims,” asserted constructive discharge, retaliation, and interference with prayer, on behalf of certain individual plaintiffs. The parties sought to sever these remaining claims, arguing that they lacked sufficient commonality to be asserted together in a single action. On November 8, 2018, the court granted the motion to sever the ad hoc claims. The court gave any plaintiff in the action the opportunity to refile his or her individual ad hoc claims (constructive discharge, retaliation, interference with the form of prayer) within 90 days of the severance order, or the claims would be dismissed with prejudice. The court then entered final judgment on April 25, 2019, dismissing all “systemic claims” and, by consent of the plaintiffs, dismissing the severed “ad hoc claims” without prejudice.

Several of the district court’s judgments were appealed to the D.C. Circuit in July 2019 (docket numbers 19-5204 and 19-5206). As of July 3, 2020, the parties’ final briefs are due on July 10, 2020.

27 individual plaintiffs (all Adair plaintiffs, all Gibson plaintiffs, and Martha Carson, Denise Merritt, and Daniel Roysden) jointly re-filed their severed ad hoc complaints as a new lawsuit in the U.S. District Court for the Eastern District of Virginia on March 1, 2019, under the caption Lancaster v. Secretary of the Navy (docket number 19-cv-95). Senior Judge Henry Coke Morgan, Jr. transferred the case back to the D.C. District: in their motion to sever their claims in the D.C. District, the plaintiffs had represented to the court that their individual ad hoc claims involved different incidents, different people, and different places, and therefore would be more appropriately litigated individually. It was therefore inappropriate for the severed claims to be tried jointly before a judge in another district. However, Judge Morgan ruled that two individual plaintiffs, who resided in the Eastern District of Virginia, could maintain their claims in that court. Those two plaintiffs re-filed their claims individually; one ultimately had his claims dismissed on January 21, 2020, and the other’s claims are pending as of July 3, 2020.

Again before Judge John D. Bates in the D.C. District, the remaining 25 plaintiffs attempted to re-litigate the systemic claims that the court had dismissed in November 2018. The court again dismissed all of those claims, and ruled that individual plaintiffs could have one final opportunity to re-file their claims, individually, within 30 days of the April 1, 2020 ruling. The re-filings must be by leave of the court. The court on May 18, 2020 denied the plaintiffs’ motion to reconsider. No individuals have sought leave of the court to refile as of July 3, 2020.

Jordan Rossen - 02/16/2014
Eva Richardson - 12/06/2018
Gregory Marsh - 07/03/2020


compress summary