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 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 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. The plaintiffs also challenge a host of other allegedly unconstitutional selection-board policies and procedures. Finally, the plaintiffs also 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. The plaintiffs sought a declaration that the challenged policies were unlawful and an injunction directing the Navy to cease those challenged policies that are still in place and develop a monitoring system.

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 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).

IV. Class Certification

On September 4, 2014, District Judge Kessler denied the plaintiffs' motion for class certification. In the Memorandum and Opinion denying class certification, Judge Kessler addressed, as a threshold matter, whether the court had subject matter jurisdiction to hear the plaintiffs' challenge to the Navy's promotion policy with respect to chaplains. The court held that, because the promotion policy had not existed since 2001 and there was no evidence that the Navy planned to reenact the policy, the plaintiffs' claim for declaratory and prospective injunctive relief related to the policy was moot. The court also held that the plaintiffs lacked standing to challenge the policy. The court explained that the plaintiffs had failed to establish that their alleged injury, increased workload, was redressable by the relief sought, as there was no indication that their increased workloads in the past had any lasting adverse effects that could be remedied. Thus, the court dismissed the plaintiffs' claim challenging the promotion policy for lack of subject matter jurisdiction.

Regarding class certification, the plaintiffs had sought to certify a class a class of up to
2,500 "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 numerosity was met, but 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 "arise from the same course of events" or are 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 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 Rule 23(a), they failed to establish that the class is maintainable under one of the subdivisions of Rule 23(b).

V. Cross Motions for Partial Summary Judgment

On September 26, 2014, Judge Kessler granted the defendants' motion for partial summary judgment and denied the plaintiffs' cross motion for summary judgment. Defendants relied on the six-year statute of limitations set forth in 28 U.S.C. § 2401 (a) to argue that many of Plaintiffs' claims are time-barred, as they were filed more than six years after finalization of the policies and personnel actions on which they are based. Plaintiffs argued that their claims did not accrue until they discovered the allegedly discriminatory nature of the CHC's practices. In the alternative, they argued that the Court should apply equitable tolling doctrines to permit them to proceed. The Court held that the plaintiffs' claim was time-barred and the equitable tolling doctrine did not apply.

VI. Defendants' Motion to Dismiss

On February 27, 2015, the defendants filed a motion to dismiss on jurisdictional grounds. The defendants addressed their challenges to the plaintiffs' remaining
claims in three categories: (1) plaintiffs' "as applied" challenges to alleged personnel policies or practices; (2) plaintiffs' "as applied" challenges to alleged conditions of hostility and bias; and (3) plaintiffs' challenges to alleged ad hoc actions against certain plaintiffs.

On March 16, 2016, Judge Kessler 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 sufficiently alleged injury-in-fact and redressability to support standing to challenge defendants' alleged ad hoc actions against certain plaintiffs. In re Navy Chaplaincy, 170 F. Supp. 3d 21 (D.D.C. 2016).

VII. 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. In October 2017, while briefing on the parties' summary judgment and discovery motions was underway, Judge Kessler retired and the case was reassigned to District Judge John D. Bates.

On August 30, 2018, Judge Bates denied the plaintiffs' motion for summary judgment, as well as their several motions for additional discovery. Judge Bates granted the defendants' motion for summary judgment. Thus, the Court granted summary judgment for six of the nine claims that were then remaining in the litigation. Specifically, the Court held that because the plaintiffs 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 plaintiffs' challenges to the selection-board policies at issue failed for essentially the same reason that plaintiffs previously failed to secure a preliminary injunction against those policies: plaintiffs 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's ban on the disclosure of selection board proceedings. In re Navy Chaplaincy, 323 F. Supp. 3d 25 (D.D.C. 2018).

The plaintiffs' three remaining 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 lack sufficient commonality to be asserted together in a single action. On November 8, 2018, the Court granted the parties' motion to sever these three claims. Thus, the Court gave any plaintiff in the action the opportunity to refile his or her claims for constructive discharge, retaliation, and/or interference with the form of prayer within 90 days of the issuance of the severance order (or else his or her claims will be dismissed with prejudice).

As of December 6, 2018, the case is still ongoing.

Jordan Rossen - 02/16/2014
Eva Richardson - 12/06/2018


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