In Re: Navy Chaplaincy

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

IN RE: NAVY CHAPLAINCY Case No. 1:07-mc-269 (GK}

MEMORANDUM OPINION

Plaintiffs, 65 current and former Non-liturgical Protestant

chaplains in the United States Navy, their endorsing agencies,

and a fellowship of non-denominational Christian evangelical

churches, 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 the parties' Cross-

Motions for Partial Summary Judgment. Upon consideration of

Defendants' Motion [Dkt. No. 159], Plaintiffs' Opposition and

Cross-Motion [Dkt. No. 172], Defendants' Reply and Opposition to

the Cross-Motion [Dkt. No. 182], and Plaintiffs' Reply to the

Cross-Motion [Dkt. No. 189], and the entire record herein, and

for the reasons set forth below, Defendants' Motion shall be

granted and Plaintiffs' Cross-Motion shall be denied.

I . BACKGROUND

A. The Navy Chaplain Corps 1

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 Eng 1 and, 3 7 5 F . 3d 116 9 , 11 71 (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.

"A Navy chaplain's role within the service is 'unique, '

involving simultaneous service as clergy or a 'professional

representative[]' of a particular religious denomination and as

a commissioned naval officer." Id. (citing OPNAVINST 1730.1,

Chaplains Manual 1-2-1-3 (Dep't of the Navy Oct. 3, 1973)).

Chapl,ains must have a graduate level theology degree or

1

In setting out the disputed and undisputed facts on a motion

for summary judgment, a court typically relies on the parties'

Statements of Undisputed Material Facts submitted pursuant to

Local Civil Rule 7(h). The parties in this case submitted Rule

7(h) Statements, but instead of setting forth facts related to

the timeliness of Plaintiffs' claims (the only issue presented

in this Motion), the parties submitted 139 pages of argument on

the merits of Plaintiffs' claims. The Rule 7(h) Statements are

therefore of little value for their intended purpose.

Accordingly, the Court confines its factual recitation to basic

undisputed background information set forth in the Plaintiffs'

Consolidated Complaint and prior decisions issued in this case.

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equivalent while also meeting the physical and educational

requirements applicable to all commissioned officers. Id. In

addition, chaplains must be endorsed by a faith-group endorsing

agency as qualified to represent that particular faith group

within the Chaplain Corps. Id. at 1172.

There are over 100 faith groups recognized by the

Department of Defense, which the Navy has grouped into four

"faith group categories" 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) ("In re Navy Chaplaincy II").

The Liturgical Protestant category includes Protestant

denominations that trace their origins to the Protestant

Reformation, practice infant baptism, and conduct services

according to a prescribed liturgy or order of worship. In re

England, 375 F.3d at 1172. This group includes Lutheran,

Episcopal, Methodist, and Presbyterian faiths. Id.; Consol.

Compl. ~ 6 (b) . The Non-liturgical Protestant category includes

Protestant denominations that do not follow a formal liturgy and

baptize at the "age of reason," including 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

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Protestant and Roman Catholic categories, including 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) .

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." 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 "sel~ctive 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 1

promotion, selective early retirement, and continuation on

active duty is made by a "selection board" composed of

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superior officers who act pursuant to statute and regulations

prescribed by the Secretary of Defense. See 10 u.s.c. §§ 611,

612. 2 Under the current procedures, selection boards are

composed of seven members : two chaplains and five other

officers. In re Navy Chaplaincy II, 697 F. 3d at 1173. Each

board member takes an oath to perform his or her 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.

Selection board proceedings are secret and "may not be

disclosed to any person not a member of the board, except as

authorized or required to process the report of the board." 10

u.s.c .. § 614 (a). In furtherance of this mandate, board

discussions, deliberations, notes, and records are statutorily

immune from legal process and "may not be used for any purpose"

in any judicial or administrative proceeding without the consent

of the Secretary of the Navy. 10 U.S.C. § 613a.

2

Selection boards operate differently depending on the rank and

type of personnel action under consideration. See generally 10

U.S.C. §§ 611, 612. Unless otherwise stated, the Court will use

the term "selection board" to refer generically to all boards

convened for the purpose of considering a change to a naval

officer's employment status.

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C. Plaintiffs' Claims

Plaintiffs challenge several current and historical aspects

of the CHC's personnel system. The following is an illustrative

sampling of their claims. 3

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 2002), the CHC used religious quotas to apportion chaplain

opportunities among various faith groups. Consol. Compl. ~~ 33-

35. In particular, they allege that, from 1976 until 1986,

Defendants implemented a policy of appointing at least two Roman

Catholic chaplains to every career-grade chaplain selection

board (the "2 RC Policy") and, from 1986 until 2002, maintained

a similar policy of appointing at least one Roman Catholic

chaplain to every such board (the "1 RC Policy") . Consol.

Compl. ~~ 8, 57(e). According to Plaintiffs, the "1 RC" and "2

Plaintiffs' Consolidated Complaint exceeds 120 pages and

asserts eighteen separate counts. For purposes here, the Court

confines its discussion to the claims Defendants contend are

time-barred.

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RC" 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) . 4 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. These include: (1) the small size of selection

boards; (2) the placement of two chaplains on each board, one of

whom is either the Chief of Chaplains or one of his or her

deputies; and (3) the use of "secret confidence voting," in

which board members anonymously indicate their degree of

confidence in a candidate in 25-degree increments ranging from

zero to one hundred. Plaintiffs claim that these practices,

taken together, "enable[] each board's chaplains to ensure that

a particular candidate will not be promoted, thus increasing the

4

Plaintiffs also originally alleged that,· between 1986 and 2000,

the Navy employed a so-called "Thirds Policy" under which it

reserved roughly one third of chaplain opportunities to

Liturgical Protestants, one third to "Non-liturgical faith

groups," and one third to "Others," including Catholics.

Consol. Compl. ~~ 33, 35, 43. However, the Court has recently

dismissed that claim for lack of subject matter jurisdiction.

See In re Navy Chaplaincy, No. 7-269, 2014 WL 4378781, at *6-9

(D.D.C. Sept. 4, 2014) ("In re Navy Chaplaincy V").

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odds for their preferred (and discriminatory) results." In re

Navy Chaplaincy, 738 F.3d 425, 428 (D.C. Cir. 2013) ("In re Navy

Chaplaincy IV").

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, many of which date back as far as

the 1970s and 1980s, in which they allegedly suffered

discrimination and free exercise harm while serving in the

Chaplain Corps. See Addendum 1 to Consol. Compl. ~~ 12, 21, 37,

41. These include occasions on 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

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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. 5

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 , 2 0 07 ,

5

In addition to the above claims, Plaintiffs also contend that

Defendants fraudulently concealed "evidence of prejudice and

bias in the selection process," and that the statute mandating

secrecy in selection board proceedings, 10 U.S.C. § 613a, is

unconstitutional as applied to them. See Consol. Compl. ~~ 187-

203, 218-224. However, the only specific relief they seek in

relation to these claims is the removal of certain impediments

to litigating this case.

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the Court consolidated all three actions, concluding that they

raise "substantially similar constitutional challenges to the

Navy Chaplaincy program." Mem. Order, dated June 18, 2007, at 4

[Dkt. No. 11].

Approximately six months after Adair was filed, Defendants

moved to dismiss a number of Plaintiffs' claims, arguing, as

they do in this Motion, that the claims are time-barred. [Adair

Dkt. No. 19]. On January 10, 2002, the Court denied that Motion

without prejudice, finding that although the claims were time-

barred on their face, Plaintiffs alleged facts to support

equitable tolling of the limitations period. Adair v. England,

183 F. Supp. 2d 31, 54-55 (D.D.C. 2002) ("Adair I") . 6

Shortly thereafter, the Adair Plaintiffs filed a Motion for

Class Certification, which the Court granted on August 19, 2002.

See generally Adair v. England, 209 F.R.D. 5 (D.D.C. 2002)

("Adair II"). Approximately one week after Plaintiffs' counsel

filed Gibson as a separate putative class action in the Northern

District of Florida, however, the Adair Plaintiffs moved to

6

Defendants again raised their statute of limitations defense in

2 0 03, in opposition to the Adair Plaintiffs' Motion to Amend

their Complaint, and the Court again rejected it as premature.

The Court promised, however, to "reconsider the defendants'

argument regarding the statute of limitations if the defendants

raise it in a motion for summary judgment after the close of

discovery." Adair v. Johnson, 216 F.R.D. 183, 188 n.8 (D.D.C.

2003) ("Adair III").

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vacate the Class Certification Order granted by this Court on

August 19, 2002, on the basis that they were "no longer willing

to represent the ~utative class." See Adair Pls.' Mot. to

Vacate [Class Certification] Order at 1 [Adair Dkt. No. 156] .

On May 30, 2006, the Court granted that Motion and then

decertified the proposed class in Adair. See Adair Minute Order

of May 30, 2006. 7

Between 2002 and 2009, the parties conducted discovery,

interspersed with collateral litigation and three interlocutory

appeals to the D.C. Circuit. In 2012, Judge Ricardo Urbina, the

District Judge previously assigned to this case, retired and the

case was reassigned to the undersigned. At the 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 February 22, 2013, Defendants filed the present Motion

for Partial Summary Judgment on their statute of limitations

defense [Dkt. No. 159]. On April 5, 2013, Plaintiffs filed

their Opposition to Defendants' Motion and Cross-Motion for

Partial Summary Judgment [Dkt. No. 172] . On May 22, 2013,

7

After Gibson was transferred to this Court, Plaintiffs filed a

Renewed Motion for Class Certification, which the Court recently

denied in light of the Supreme Court's intervening decision in

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). See In

re Navy Chaplaincy V, 2014 WL 4378781, at *9-20.

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Defendants filed their Reply to the Motion and Opposition to the

Cross-Motion [Dkt. No. 182]. On July 1, 2013, Plaintiffs' filed

their Reply in support of their Cross-Motion [Dkt. No. 189].

II. LEGAL STANDARD

A party may move for summary judgment as to any claim or

defense, or I?art thereof, and the motion should be granted if

the movant establishes that there is no genuine dispute as to

any material fact and the issue may be resolved as a matter of

law. Fed. R. Civ. P. 56(a) "A fact is 'material' if a dispute

over it .might affect the outcome of a suit under governing

law [.]" Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). A dispute is "genuine" if the evidence is such that "a

reasonable jury could return a verdict for the nonmoving party."

Id.

The party seeking summary judgment "bears the heavy burden

of establishing that the merits of his case are so clear that

expedited action is justified." Taxpayers Watchdog, Inc., v.

Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). "A party asserting

that a fact cannot be or is genuinely disputed must support the

assertion by citing to particular parts of materials in the

record," including depositions, documents, affidavits,

admissions or other materials, or by "showing that the materials

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cited do not establish the absence or presence of a genuine

dispute, or that an adverse party cannot produce admissible

evidence to support the fact[.]" Fed R. Civ. P. 56 (c) (1). If

the movant meets its burden, the opposing party must ·come

forward with evidence of specific facts showing that there is a

genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp.

v. Catrett, 477 U.S. 317, 324 (1986).

In deciding a motion for summary judgment, "the court must

draw all reasonable inferences in favor of the nonmoving party,

and it may not make credibility determinations or weigh the

evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 150 (2000). However, "the mere existence of a scintilla of

evidence in support of the plaintiff's position will be

insufficient" to survive summary judgment. Liberty Lobby, Inc.,

477 U.S. at 252. As the Supreme Court stated in Celotex Corp.,

"the plain language of Rule 56 (c) mandates the entry of summary

judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at

trial." 477 U.S. at 322.

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III. ANALYSIS

Relying on the six-year statute of limitations set forth in

2 8 U.S. C. § 24 01 (a) , Defendants argue that many of Plaintiffs'

claims are time-barred, having been filed more than six years

after finalization of the policies and personnel actions on

which they are based.

Plaintiffs agree that their claims are governed by 28

U.S.C. § 2401(a), which provides that a "civil action commenced

against the United States shall be barred unless the complaint

is filed within six years after the right of action first

accrues." 28 U.S.C. § 2401(a). They argue, however, that their

claims did not accrue until they discovered the allegedly

discriminatory nature of the CHC's practices and, therefore,

that such claims are timely under Section 2401 (a) . In the

alternat~ve, they contend that even if their claims are

untimely, the Court should apply equitable tolling doctrines to

permit them to proceed.

If, as Defendants argue, Plaintiffs' claims accrued when

the policies and personnel actions on which they are based

became final, many of such claims are barred by the plain

language of Section 2401 (a) . In particular, unless a tolling

rule applies, Defendants would be entitled to judgment in their

favor on: all CFGC claims based on policies or personnel actions

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finalized prior to November 5, 1993; all Adair claims based on

policies or personnel actions finalized prior to March 17, 1994;

and all Gibson claims based on policies or personnel actions

finalized prior to April 28, 2000. See Defs.' Mem. at 8-11.

Consequently, the Court shall first address the issue of

when Plaintiffs' claims accrued for purposes of triggering the

six-year limitations period in Section 2401(a). Then, it shall

address Plaintiffs' argument that the limitations period in

Section 2401(a) should be equitably tolled.

A. Accrual

1. Plaintiffs' Claims Accrued When the Challenged

Policies and Personnel Actions Became Final

In general, a claim accrues when "the plaintiff has a

complete and present cause of action" and "can file suit and

obtain relief[.]" Earle v. Dist. of Columbia, 707 F.3d 299, 305

(D.C. Cir. 20l2) (citation and quotation marks omitted).

In employment discrimination cases such as this one, this

rule yields different results depending on the specific legal

theory at issue. In particular, the Supreme Court has held that

a claim challenging a facially neutral employment policy as

intentionally discriminatory under Title VII of the Civil Rights

Act of 1964, accrues on the date the policy becomes final, not

the date it is applied to the plaintiff. See, e.g., Lorance v.

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AT & T Technologies, Inc., 490 U.S. 900, 905 (1989). By

contrast, a claim challenging a facially discriminatory policy

under Title VII accrues when the policy is applied to the

plaintiff. See Ledbetter v. Goodyear Tire & Rubber Co., 550

U.S. 618, 634 (2007) (citing Bazemore v. Friday, 478 U.S. 385

(1986)), superseded by statute on other grounds, Lilly Ledbetter

Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5, 42 U.S.C.

§2000e-5 (e). 8

In light of these different rules, the Supreme Court has

"stressed the need to identify with care the specific employment

practice that is at issue" before determining the accrual date

for any particular claim. Id. at 624 (citing Nat' 1 Railroad

Passenger Corp. v. Morgan, 536 U.S. 101, 110-11 (2002)).

In advocating for their respective approaches to accrual,

the parties have neither "identif [ied] with care the specific

employment practice [s] that [are] at issue" in each claim nor

addressed the possibility that different rules apply to

8

Although Plaintiffs do not rely ori Title VII of the Civil

Rights Act of 1964, the essence of their claims is that they

were discriminated against on the basis of their religion.

Therefore, and in the absence of any authority directly on

point, the Court relies on accrual principles developed in the

Title VII context. See Veitch v. England, 471 F.3d 124, 127

(D.C. Cir. 2006) (relying on Title VII principles to evaluate

former Navy chaplain's constructive discharge claim under the

First Amendment) .

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different claims depending on whether facially neutral or

facially discriminatory practices are at issue. Defendants are

correct, however, that under any of the rules articulated by the

Supreme Court in the controlling cases set forth above,

Plaintiffs' claims could accrue no later than the date on which

the policies and personnel actions on which they are based

became final . See, e.g., Ledbetter, 550 U.S. at 637; Morgan,

53 6 U.S. at 112-13; see also Delaware State College v. Ricks,

449 U.S. 250, 258 (1980) (employment discrimination claim under

Title VII and 42 U.S.C. § 1981 accrued at time "the tenure

decision was made and communicated to [the plaintiff]") .

Therefore, the Court will apply that accrual rule to Plaintiffs'

claims.

2. The "Discovery Rule" Does Not Apply

Invoking the "discovery rule" - a variant of the general

rule set forth above - Plaintiffs argue that their claims did

not accrue until they discovered the allegedly discriminatory

nature of the practices at issue. Pls.' Opp' n at 21-22; Pls.'

Reply at 17. The discovery rule is most often reserved for tort

cases which, unlike this case, involve injuries that are

difficult to discover. See, e.g., Gabelli v. S.E.C., 133 S. Ct.

1216, 1221-22 (2013); Kifafi v. Hilton Hotels Ret. Plan, 701

F.3d 718, 729 (D.C. Cir. 2012)

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Even assuming, however, that the "discovery rule" applied

to this case, it is discovery "of the injury, not the

other elements of a claim [that] starts the clock." Rotella v.

Wood, 52 8 U.S. 549, 555-56 (2 00 0) (emphasis added) There is

nothing in this record to suggest Plaintiffs were not on notice

of their employment injuries at the time they occurred. 9

Attempting to avoid this conclusion, Plaintiffs seek to

recharacterize their injury, arguing that it "is not the failure

of selection," but the "realization that the Navy's decision

reflects an official position" that is "based on or tainted with

forbidden denom.lnational biases or prejudice." Pl s . ' Opp' n at

16-17. This argument fails as well.

Our Court of Appeals has expressly rejected the contention

that emotional harm "suffered on learning of the government's

alleged malfeasance constitute[s] an independent injury"

postponing accrual of a claim. Sexton v. United States, 832

F.2d 629, 637 (D.C. Cir. 1987) Therefore, "an employee who

discovers, or should have discovered, the injury (the adverse

9

Plaintiffs concede that "[they] knew they had failed of

selection" when the selection board decisions were announced.

Pls.' Opp'n at 23. By the same token, they also knew when they

were assigned to inadequate or unsuitable religious facilities;

when they were chastised or disciplined based on the content of

their religious teachings; and when they experienced the many

other acts of discrimination and Free Exercise violations

alleged in their Consolidated Complaint.

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employment decision) need not be aware of the unlawful

discriminatory intent behind that act for the limitations clock

to start ticking." Almond v. Unified Sch. Dist. No. 501, 665

F. 3d 1174, 1177 (lOth Cir. 2011); see also Coppinger- Martin v.

Solis, 627 F.3d 745, 749 (9th Cir. 2010) (same) (citing cases) . 10

In sum, the discovery rule is not applicable to Plaintiffs'

claims and, in any event, leads to precisely the same conclusion

as the general rule: Plaintiffs' claims accrued no later than

the date on which the policies and personnel actions at issue

became final.

3. The "Continuing Violation Doctrine" Does Not

Apply

Plaintiffs also urge the Court to apply the "continuing

violation doctrine" to the accrual of their claims. Pls.' Opp' n

at 17. This doctrine - another variant of the general rule -

stems from judicial recognition that certain events cannot "be

made the subject of a lawsuit when [they] first occur[]

typically because it is only [their] cumulative impact

10

Plaintiffs' related argument, Pls.' Reply at 3, 16, that their

claims did not accrue until they obtained concrete proof of

discrimination is also easily rejected: accrual does not depend

on the quantum of evidence in a plaintiff's possession. As the

Supreme Court held in Rotella, such a rule "would undercut every

single policy" in favor of a statute of limitations and "doom

any hope of certainty in identifying potential liability."

Rotella, 528 U.S. at 555-56.

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that reveals [their] illegality." Earle, 707 F.3d at 306

(citing Taylor v. FDIC, 132 F.3d 753, 765 (D.C. Cir. 1997);

Morgan, 536 U.S. at 115-16)).

The Supreme Court has made clear, however, that this

doctrine, which is almost exclusively applied to hostile work

environment claims under Title VII I does not apply to

discrimination claims based on specific adverse employment

actions ·because a "discrete retaliatory or discriminatory act

'occur[s] on the day that it 'happen[s] '" and is "not actionable

if time barred, even when [it is] related to acts alleged in

timely filed charges." Morgan, 536 U.S. at 110-11; see also

Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011).

Plaintiffs do not bring any hostile work environment claims

under Title VII, and they fail to offer any persuasive

explanation as to why the "continuing violation doctrine" is

applicable to their First and Fifth Amendment claims alleging

discriminatory employment decisions and specific free exercise

harms. Their central argument is that evidence of

discrimination could not "come to light" until they performed a

"detailed statistical analysis of the chaplain promotion board

results over long periods of time." Pls.' Opp'n at 18. This is

just a variation of their previously rejected argument that

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their claims did not accrue until they discovered evidence of

the Navy's alleged discrimination. See supra note 10.

Furthermore, the continuing violation doctrine applies to

"claims that by their nature occur not 'on any particular day'

but 'over a series of days or perhaps years [ . ] " Mayers v.

Laborers' Health & Safety Fund, 478 F.3d 364, 368 (D.C. Cir.

2007) (emphasis added). It does not apply to the cumulative

search for evidence to prove a discrete claim. See Rotella, 528

U.S. at 555-56. 11

In sum, the injuries of which Plaintiffs complain - failure

of selection, selective early retirement, and specific instances

of free exercise harm - are "discrete," even if they are alleged

to have been "undertaken pursuant to a general policy that

results in other discrete acts occurring within the limitations

period." Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 157-

58 (2d Cir.. 2012), cert. denied, 133 S. Ct. 1724 (2013) (citing

cases) . Accordingly, the "continuing violation doctrine" is

inapplicable to the facts of this case.

11

The Court, of course, makes no findings as to the scope of the

evidence on which Plaintiffs may rely to support their timely

claims. See Chin, 685 F. 3d at 150 (noting that the plaintiffs

could rely on "data ·from outside the statute of limitations to

prove timely discriminatory acts") (citation omitted).

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B. Equitable Tolling of the Limitations Period Is Denied

Having concluded that Plaintiffs' claims accrued no later

than when the policies and personnel actions at issue became

final, all claims of Plaintiffs accruing more than six years

before the commencement of each case are time-barred unless a

tolling rule applies.

Plaintiffs advance two discrete arguments related to such

tolling. First, they contend that the limitations period for

each of the three consolidated cases should be equitably tolled

because Defendants "fraudulently concealed" their alleged

wrongdoing. Second, they contend that the "class action

tolling" doctrine adopted by the Supreme Court in American Pipe

& Construction Co. v. Utah, 414 U.S. 538 (1974) and Crown, Cork

& Seal Co. v. Parker, 462 U.S. 345, 349 (1983) should be applied

to Gibson, which would toll the limitations period for the

Gibson Plaintiffs during the pendency of the Adair class action.

Defendants counter that the Court lacks any authority to

extend the limitations period· in Section 2401(a) because

compliance with that provision is a "jurisdictional" condition

of the Government's waiver of sovereign immunity. They also

argue that, even if the Court does have such authority,

Plaintiffs fail to present evidence from which a reasonable

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juror could conclude that either tolling doctrine applies to the

facts of this case.

Our Court of Appeals has "long held," and recently

reaffirmed, that Section 2401 (a) is unlike a "normal statute of

limitations" because it "'creates a jurisdictional condition

attached to the government's waiver of sovereign immunity" that

"cannot be waived by the parties" and is not subject to

equitable extensions. Mendoza v. Perez, 754 F. 3d 1002, 1018

(D.C. Cir. 2014) (citing P & V Enters. v. U.S. Army Corps of

Eng'rs, 516 F.3d 1021, 1026 (D.C. Cir. 2008) (citing cases)) . 12

Under this clear and controlling precedent, a district court

lacks any authority to extend the limitations period for claims

governed by Section 2401 (a) . Id.; see also John R. Sand &

Gravel Co. v. United States, 552 U.S. 130, 134 (2008) (observing

that a "jurisdictional" statute of limitations "forbid[s] a

court to consider whether certain equitable considerations

12

The Court of Appeals has acknowledged that it has "recently

questioned the continuing viability of this holding in light of

recent Supreme Court decisions" holding that statutes of

limitations in actions against the Government are subject to the

same rebuttable presumption of equitable tolling applicable to

suits against private defendants. Mendoza, 754 F.3d at 1018

n.11 (citing P & VEnters., 516 F.3d at 1027 & n.2; Felter v.

Kempthorne, 473 F.3d 1255, 1260 (D.C. Cir. 2007)); see also

Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96

(1990)). However, unless and until the Court of Appeals

"resolve[s] this issue," Mendoza, 754 F.3d at 1018, this Court

is bound by the law at it currently exists.

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warrant extending a limitations period") . Consequently,

Plaintiffs' claims for equitable tolling shall be denied. 13

IV. CONCLUSION

For the foregoing reasons, Defendants' Motion for Partial

Summary Judgment shall be granted, and Plaintiffs' Cross-Motion

shall be denied.

Jb.

September ~ 2014

Copies to: attorneys on record via ECF

13

Having so concluded, the Court shall not reach Defendants'

alternative argument that the doctrines of equitable tolling

based on fraudulent concealment and class action tolling are not

properly applied to the facts of this case.

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