Petition for Writ of Certiorari — Chaplaincy of Full Gospel Churches, et al., Petitioners v. Department of the Navy, et al.

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No. _______

In The

Supreme Court of the United States

IN RE: NAVY CHAPLAINCY,

CHAPLAINCY OF FULL GOSPEL CHURCHES, ET AL.,

Petitioners,

UNITED STATES NAVY, ET AL.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

APPENDIX

Arthur A. Schulcz, Sr.

Chaplains’ Counsel, PLLC

21043 Honeycreeper Pl.

Leesburg, Virginia 20175

(703) 645-4010

art@chaplainscounsel.com

Counsel of Record

for Petitioners

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond VA 23219 (800) 847-0477

TABLE OF CONTENTS

Page

Opinion of the U.S. Court of Appeals for the District of

Columbia Circuit in 19-5204, filed 11/6/20 ....................................................... A1

Opinion of the U.S. District Court of the District of Columbia,

filed 8/30/19 ........................................................................................................ A6

Opinion of the U.S. Court of Appeals for the District of

Columbia Circuit in 13-5071, filed 12/27/13 ................................................... A51

Order of the U.S. Court of Appeals for the District of

Columbia Circuit in 13-5071, filed 2/24/14 ..................................................... A62

Opinion of the U.S. District Court of the District of Columbia,

filed 2/28/13 ...................................................................................................... A63

Order of the U.S. Court of Appeals for the District of

Columbia Circuit in 12-5027, filed 11/2/12 ..................................................... A92

Order of the U.S. Court of Appeals for the District of

Columbia Circuit in 12-5027, filed 1/3/13 ..................................................... A108

Opinion of the U.S. District Court of the District of Columbia,

filed 1/30/12 .................................................................................................... A110

Order Denying Rehearing of the U.S. Court of Appeals for the

District of Columbia Circuit in 19-5204, filed 1/15/21 ................................. A128

Opinion of the U.S. District Court of the District of Columbia in

Adair v. Winter, filed 9/11/06 ........................................................................ A129

Constitutional, Statutory and Regulatory Provisions ................................. A141

Rear Admiral Holderby’s Testimony to Naval Inspector General re:

FY 97& 98 Chaplain Commander Boards .................................................... A144

FY 97&98 NIG Testimony of Baptist board member complaining of

denominational preference done very “slickly” to Naval Inspector

General re: FY 97& 98 Chaplain Commander Boards ................................ A149

FY 97& 98 NIG Testimony of a board recorder’s establishing chaplains’

promotions depended on how well a briefer briefed a candidate’s

record to Naval Inspector General (“NIG”) re: FY 97& 98 Chaplain

Commander Boards ....................................................................................... A153

Extracts of Department of Defense Inspector General investigation of

FY 97&98 Chaplain Commander Promotion Boards .................................. A155

Summary of LCDR Daniel Roysden’s Deposition Testimony...................... A165

Chaplain Corps Voting Machine from Navy’s Explanation of Voting

Process ............................................................................................................ A172

RADM Black’s NIG Testimony re: FY 2000 Chaplain Captain Promotion

Board .............................................................................................................. A173

Commander Mary Washburn NIG Testimony re: Her Experience on

Chaplain Promotion Boards .......................................................................... A175

Extract Naval Inspector General Investigation Report re: Alleged

Misconduct by RADM Baker on the FY-2009 Chaplain CAPT

Promotion Board ............................................................................................ A180

Affidavit by CAPT Floyd Ellison, CHC, USN, re: Testimony about FY 97

Catholic Board Member CAPT Ed Anderson ............................................... A184

Declaration of Chaplain Klon Kitchen Jr., re: Testimony of CAPT about

FY 97 Catholic Board Member CAPT Wayne Bumbry................................ A187

Declaration of LCDR Gary Stewart .............................................................. A189

Center for Naval Analysis FY 1972-2000 Faith Group Category

Promotion % ................................................................................................... A190

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 19-5204

September Term, 2020

FILED ON: NOVEMBER 6, 2020

IN RE: NAVY CHAPLAINCY,

CHAPLAINCY OF FULL GOSPEL CHURCHES, ET AL.,

APPELLEES

ASSOCIATED GOSPEL CHURCHES,

APPELLANT

UNITED STATES NAVY, ET AL.,

APPELLEES

Consolidated with 19-5206

Appeals from the United States District Court

for the District of Columbia

(No. 1:07-mc-00269)

Before: SRINIVASAN, Chief Judge, RAO, Circuit Judge, and GINSBURG, Senior Circuit

Judge.

JUDGMENT

The court considered this appeal on the record from the United District Court for the

District of Columbia and on the briefs and oral argument of the parties. The court afforded full

consideration to the issues presented and determined a published opinion is not warranted. See

D.C. Cir. R. 36(d). For the reasons stated below, it is

ORDERED and ADJUDGED that the judgment of the district court expressed in an

opinion and order issued on August 30, 2018 be AFFIRMED. In that opinion the court denied

the Plaintiffs’ motions to lift a discovery stay and to stay summary judgment pending further

discovery. In addition, the district court denied summary judgment for the Plaintiffs and granted

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summary judgment for the Navy on the Plaintiffs’ claims that the Navy’s selection board policies

and procedures violate the First and Fifth Amendments to the Constitution of the United States,

and on their claim that 10 U.S.C. § 613a is unconstitutional as applied to the facts of this case.

The Plaintiffs appealed each of these decisions.

Our review of a district court’s decision to grant or deny a motion for summary judgment

is de novo. Capitol Sprinkler Inspection, Inc. v. Guest Servs., 630 F.3d 217, 223-24 (D.C. Cir.

2011). We review a district court’s ruling on discovery matters under the more deferential abuse

of discretion standard. See, e.g., Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003

(D.C. Cir. 1996).

First, the district court did not abuse its discretion in declining to permit further

discovery. Judge Bates inherited this action in late 2017, nearly two decades after it began. By

the time it reached him, the Plaintiffs had taken extensive discovery, including 25 interrogatories,

136 requests for production, and 17 depositions. Between 2002 and 2009, discovery was open

for over five years net of intermittent stays. The district court was surely correct in concluding

the Plaintiffs had had “ample opportunity” to conduct discovery. See Fed. R. Civ. P.

26(b)(2)(C)(ii).

Second, the district court was right to reject the Plaintiffs’ most recent attempt to evade

the statute that prohibits discovery of selection board proceedings. On appeal, the Plaintiffs have

still “advanced no coherent theory” to explain their assertion that the statute violates the

Constitution simply because discovery of board proceedings might help the Plaintiffs’ case. In

re Navy Chaplaincy 323 F. Supp. 3d 25, 51 (D.D.C. 2018) (quoting Adair v. Winter, 451 F.

Supp. 2d 210, 220 (D.D.C. 2006)).

Third, the district court made no mistake in granting summary judgment for the Navy on

the Plaintiffs’ various First Amendment 1 challenges to its selection board policies. See

Chaplaincy, 323 F. Supp. 3d at 35-36, 55-56. With regard to the claims that certain selection

board policies violated the Establishment Clause, the Plaintiffs had to show each policy had an

unconstitutional effect; that is, the Plaintiffs had to show “the selection policies appear[ed] to

endorse religion in the eyes of a reasonable observer.” In re Navy Chaplaincy, 738 F.3d 425,

430 (D.C. Cir. 2013) (emphasis and internal quotation marks omitted). To prove an endorsement

with statistics, the Plaintiffs had to show a stark disparity in outcomes during the relevant period,

id. at 431, but the statistics they offered came nowhere close to doing so. The Plaintiffs’

alternative argument, an analogy to Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982), is

foreclosed by the law of the case. See In re Navy Chaplaincy, 697 F.3d 1171, 1179 (D.C. Cir.

2012).

It is

The Plaintiffs do not press their Fifth Amendment challenges on appeal.

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FURTHER ORDERED and ADJUDGED that the district court’s opinion and order

dismissing for lack of standing appellant Associated Gospel Churches’ (AGC’s) claim

challenging the Navy’s alleged policy of recruiting chaplains without regard to the Navy’s “free

exercise needs” be REVERSED in relevant part, and that this claim be REMANDED to the

district court for further consideration.

AGC, a chaplain endorsing agency, joined this action in its own right and as a

representative of its members to challenge various aspects of the Navy’s policies and procedures

for accessing and promoting chaplains. In February 2015, the Navy moved to dismiss AGC’s

challenges to its accession policies for lack of standing. AGC implicitly conceded it lacked

standing to pursue most of its accession claims, but argued it had both organizational and

representational standing to attack the Navy’s alleged policy of setting chaplain accession goals

that do not correspond to the “free exercise needs” (i.e., religious demographics) of the Navy. In

2016, the district court held AGC did not have organizational or representational standing to

pursue this claim. In re Navy Chaplaincy, 170 F. Supp. 3d 21, 31-33. Later that year, AGC

abandoned its remaining claims and asked the district court to dismiss AGC from the action so it

could join a Rule 54(b) motion some of the Plaintiffs planned to file.

On appeal, AGC argues it has standing in its own right to challenge the Navy’s faithneutral accession goals. 2 We agree. AGC alleged the Navy’s accession goals resulted in AGC’s

chaplain candidates entering the Navy at a significantly lower rate than they otherwise would

have. AGC further alleged, because it relies upon its chaplains for financial support, it loses

money when its ability to find placements for its candidates is hindered. AGC also alleged its

low rate of success placing candidates in the Navy tarnished its reputation. These allegations

satisfy all three elements of standing. We express no opinion on the sufficiency of the

allegations in any other respect. The claim will be remanded to the district court for further

proceedings.

It is

FURTHER ORDERED and ADJUDGED that the district court’s order holding certain

Plaintiffs’ claims untimely under 28 U.S.C. § 2401(a) be VACATED in relevant part and these

claims be REMANDED to the district court for consideration whether equitable tolling applies

to any or all of these claims under a theory of fraudulent concealment.

In 2014, the district court granted summary judgment for the Navy on each claim based

upon policies or personnel actions finalized more than six years before the filing of the

AGC forfeited any argument for standing on behalf of its members by failing to develop it beyond a

conclusory recitation of elements. See Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir.

2019) (“A party forfeits an argument by mentioning it only in the most skeletal way” (quotation

omitted)).

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respective suit. Twenty-three Plaintiffs were dismissed from the action as a result.

The Plaintiffs had argued the statute of limitations should be equitably tolled because the

Navy fraudulently concealed its alleged misconduct. The district court rejected this argument

pursuant to then-controlling precedent holding the statute of limitations in 28 U.S.C. § 2401(a) is

jurisdictional, and therefore not subject to equitable tolling. See, e.g., Mendoza v. Perez, 754

F.3d 1002, 1018 (D.C. Cir. 2014) (“We have long held § 2401(a) creates a jurisdictional

condition attached to the government’s waiver of sovereign immunity”) (cleaned up); P & V

Enters. V. U.S. Army Corps of Eng’rs, 516 F.3d 1021, 1026 (D.C. Cir. 2008) (applying this rule).

Shortly thereafter, however, the Supreme Court held equitable tolling is available under §

2401(b), calling our view of § 2401(a) into doubt. United States v. Kwai Fun Wong, 575 U.S.

402 (2015). The Plaintiffs moved for reconsideration, which was denied, as the district court

correctly stated it “remain[ed] bound by Circuit precedent as it currently” stood. While this case

was on appeal, this court overturned our precedent on § 2401(a). Jackson v. Modly, 949 F.3d

763, 776-78 (Feb. 14, 2020) (“[W]e hold that § 2401(a)’s time bar is nonjurisdictional and

subject to equitable tolling”).

Constrained by our former interpretation of § 2401(a), the district court never had

occasion to consider the merits of the Plaintiffs’ fraudulent concealment arguments. The Navy

urges us to decide the issue in the first instance. Appellee’s Br. at 24-25 (citing Liff v. Off. of

Inspector Gen., 881 F.3d 912, 919 (D.C. Cir. 2018) (holding the court of appeals may decide

certain “straightforward legal question[s]” not considered by the district court)). We decline this

invitation. Fraudulent concealment is a fact-bound inquiry, entailing questions such as: “Did the

Navy use some trick or contrivance to conceal the alleged discrimination?”; “Were the affected

Plaintiffs on notice of it regardless?”; and “Did the affected Plaintiffs exercise diligence?”. See

Hobson v. Wilson, 737 F.2d 1, 33-36 (D.C. Cir. 1984). On remand, the district court will

determine whether any claims are to be resurrected due to equitable tolling.

It is

FURTHER ORDERED and ADJUDGED that the judgment of the district court

dismissing certain Plaintiffs’ claims that the Government infringed their First Amendment rights

by allowing chaplains to rate other chaplains is AFFIRMED. The district court correctly held

the Plaintiffs did not state a claim on this point because the relevant allegations were speculative

and implausible. Adair v. England, 183 F. Supp. 2d 31, 60-61 (2002). On appeal, the Plaintiffs

construe this holding as resting on an “irrebuttable presumption” that naval officers always act

with regularity. We disagree with the Plaintiffs’ reading.

To state a claim under the Establishment Clause, the Plaintiffs had to allege either that the

policy failed under Larson v. Valente, 456 U.S. 228 (1982), in that it granted a denominational

preference without narrow tailoring to serve a compelling government interest, or that the policy

failed under the three part test of Lemon v. Kurtzmann, 403 U.S. 602 (1971) (holding a law

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violates the Establishment Clause if its (1) purpose or (2) effect favors a religion, or it creates (3)

excessive entanglement between Government and religion). See Adair, 183 F. Supp. 2d at 4749. Allowing chaplains to sit on chaplain selection boards does not create a de jure

denominational preference and does not create excessive entanglement. The purpose of the

policy is innocuous: “Staff corps promotion boards have been traditionally composed of officers

who are members of the same staff corps” because “those in the same profession are more

qualified to evaluate others in their profession.” Id. at 61 (quoting Emory v. Secretary of the

Navy, 708 F. Supp. 1335, 1339 (D.D.C. 1989)) (cleaned up). All that is left is discriminatory

effect, but to believe this policy has a discriminatory effect would require the court to “believe

that the usual rule for a chaplain sitting on a promotion board will be to discriminate.” Id. at 60.

The district court rightly found this conclusion implausible, especially given the Plaintiffs had

only “highly speculative” allegations to support it. Id. at 60-61.

The Clerk is directed to withhold issuance of the mandate until seven days after

resolution of any timely petition for rehearing or rehearing en banc. See Fed. R. App. P. 41(b);

D.C. Cir. R. 41(b).

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

/s/

Daniel J. Reidy

Deputy Clerk

Case 1:07-mc-00269-JDB Document 336 Filed 08/30/18 Page 1 of 45

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

IN RE: NAVY CHAPLAINCY

Misc. Case No. 07-269 (JDB)

MEMORANDUM OPINION

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

Case 1:07-mc-00269-JDB Document 336 Filed 08/30/18 Page 2 of 45

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 selectionboard 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.

BACKGROUND

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.

Case 1:07-mc-00269-JDB Document 336 Filed 08/30/18 Page 3 of 45

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).

Case 1:07-mc-00269-JDB Document 336 Filed 08/30/18 Page 4 of 45

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);

The Navy refers to its regulations as “Instructions” from the Secretary of the Navy, abbreviated as

“SECNAVINST.” The Instructions at issue here are SECNAVINST 1401.3, see Ex. 3 to Def.’s Opp’n to Pls.’ Mot.

for Summ. J. and Cross-Mot. for Summ. J. (“SECNAVIST 1401.3”) [ECF No. 281-3], which was promulgated in

December 1989, and SECNAVINST 1401.3A, which superseded SECNAVINST 1401.3 in December 2005, see Ex.

5 to Def.’s Opp’n to Pls.’ Mot. for Summ. J. and Cross-Mot. for Summ. J. (“SECNAVIST 140.3A”) [ECF No. 3175]. Both instructions contain three “enclosures,” the first of which sets out further provisions applicable to the Navy’s

selection boards.

Case 1:07-mc-00269-JDB Document 336 Filed 08/30/18 Page 5 of 45

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.

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

A10

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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,

While plaintiffs’ motion to compel was pending before Judge Urbina, plaintiffs filed a motion for a

preliminary injunction that “would, among other things, ‘require the Navy to separate immediately those chaplains it

has allowed to continue on active duty beyond age 60,’” which plaintiffs sought in light of the Navy’s allegedly “‘well

established practice of allowing Catholic . . . chaplains, and only Catholic chaplains,’ to remain on active duty beyond

mandatory separation age limits.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 296 (D.C. Cir.

2006) (citation omitted). Judge Urbina denied this motion, concluding only that plaintiffs had failed to demonstrate

irreparable injury, but the D.C. Circuit reversed, concluding that “the Navy’s alleged violation of the Establishment

Clause per se constitutes irreparable harm.” See id. at 296, 299. On remand, the district court ruled that plaintiffs

lacked standing, and this time the D.C. Circuit affirmed, noting that “plaintiffs have conceded that they themselves

did not suffer . . . discrimination” but rather argued that “other chaplains” did. In re Navy Chaplaincy, 534 F.3d 756,

758 (D.C. Cir. 2008), aff’g 516 F. Supp. 2d 119 (D.D.C. 2007).

A11

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§ 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

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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).

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.

Order at 2, Gibson v. U.S. Navy, Civil Action No. 3:06-187 (N.D. Fla. Aug. 17, 2006), ECF No. 33.

According to the Navy, see id., these included the D.C. Circuit’s affirmance of Judge Urbina’s denial of plaintiffs’

motion for a temporary restraining order (which would have barred the Navy from discharging a single plaintiff) and

its denial of plaintiffs’ request to assign the case to a new district judge. See Adair v. Holderby, No. 06-5074 (D.C.

Cir. Apr. 20, 2006) (per curiam) (unpublished), aff’g Adair v. England, 417 F. Supp. 2d 1 (D.D.C. 2006).

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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.

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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.

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

Judge Kessler would later summarize the claims in the consolidated complaint as follows: (1) a challenge

to the Navy’s use of faith group categories, (2) allegations that the Navy “used religious quotas to apportion chaplain

opportunities among various faith groups,” (3) challenges to various selection-board practices, including the three

practices challenged in their earlier preliminary injunction motion and an additional practice by which “each selection

candidate’s three-digit ‘faith group identifier’ code was prominently displayed throughout the selection board

process,” and (4) claims “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.”

In re Navy Chaplaincy, 69 F. Supp. 3d 249, 253 (D.D.C. 2014).

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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 timebarred. 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

During this period, the parties litigated a dispute over the scope of an exception to the discovery stay that

allowed either party to depose “any individuals whose testimony may well be subject to loss if not taken in the very

near future,” Case Mgmt. Order #1 at 3; see Nov. 29, 2012 Mem. Op. [ECF No. 146] (resolving the dispute in late

2012). The parties were also engaged in litigation over plaintiffs’ preliminary injunction motion, which was finally

resolved by the D.C. Circuit in December 2013. See In re Navy Chaplaincy, 738 F.3d at 428.

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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

In its separate case management proposal, the Navy indicated an intent to move to sever the remaining

individual claims from the consolidated litigation, explaining that “[t]hese claims are inherently fact-specific, and

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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.

litigating them in consolidated fashion would impose unnecessary and counter- productive burden, expense, and delay

on the parties and the Court.” Def.’s Updated Case Mgmt. Proposal [ECF No. 244] at 7.

See Pls.’ Mot. for (1) Summ. J. that 10 U.S.C. § 613(a) [sic] is Unconstitutional as Applied to Pls.’

Establishment and Due Process Claims and (2) an Order Directing the Sec’y to Release Selection Bd. Members from

their Oath of Secrecy (“Pls.’ Claim 1 MSJ”) [ECF No. 254]; Def.’s Opp’n to Pls.’ Mot. for Summ. J and Cross-Mot.

for Summ. J. (“Navy’s Claim 1 Opp’n”) [ECF No. 260]; Pls.’ Reply Mem. of P. & A. to Def.’s Opp’n (“Pls.’ Claim

1 Reply”) [ECF No. 266]; Pls.’ Opp’n/Resp. to Defs.’ Cross-Mot. for Summ. J. (“Pls.’ Claim 1 Opp’n”) [ECF No.

267]; Reply in Supp. of Def.’s Cross-Mot. for Summ. J. (“Navy’s Claim 1 Reply”) [ECF No. 269].

See Pls.’ Mot. for Summ. J. that the Defs.’ Policy of Placing at Least One Roman Catholic Chaplain on

Every Selection Bd. Until the Practice Was Terminated in Fiscal Year 2003 Is Unconstitutional (“Pls.’ Claim 2 MSJ”)

[ECF No. 276]; Def.’s Opp’n to Pls.’ Mot. for Summ. J. and Cross-Mot. for Summ. J. (“Navy’s Claim 2 Opp’n”)

[ECF No. 281]; Pls.’ Mem. in Reply to Defs.’ Opp’n to Pls.’ Summ. J. Mot. (“Pls.’ Claim 2 Reply”) [ECF No. 291];

Pls.’ Opp’n to Def.’s Mot. for Summ. J. (“Pls.’ Claim 2 Opp’n”) [ECF No. 293]; Reply in Supp. of Defs.’ Cross-Mot.

for Summ. J. (“Navy’s Claim 2 Reply”) [ECF No. 298].

See Pls.’ Mot. for Summ. J. Concerning Pls.’ Phase III Claims Challenging Defs.’ Selection Bd. Practices

as Unconstitutional (“Pls.’ Claim 3 MSJ”) [ECF No. 313]; Def.’s Opp’n to Pls.’ Mot. for Summ. J. and Cross-Mot.

for Summ. J. (“Navy’s Claim 3 Opp’n”) [ECF No. 317]; Pls.’ Reply Mem. in Supp. of Their Mot. for Summ. J. (“Pls.’

Claim 3 Reply”) [ECF No. 325]; Reply in Supp. of Defs.’ Cross-Mot. for Summ. J. (“Navy’s Claim 3 Reply”) [ECF

No. 330].

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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 would

“defer ruling on that motion until the motions hearing.” Jan. 11, 2018 Order [ECF No. 302].

Plaintiffs thereafter moved to stay summary judgment briefing on Claim 3 (by then,

briefing on Claims 1 and 2 was complete) pending the Court’s disposition of their motion to lift

the discovery stay and their constitutional challenge to 10 U.S.C. § 613a. See Pls.’ Rule 56(d)

Mot. for a Stay in the Summ. J. Proceedings [ECF No. 303]. The Court denied that motion,

construing it as one for reconsideration of its January 2018 order and explaining that, “instead of

reopening discovery on the eve of scheduled summary judgment briefing, the Court will consider

plaintiffs’ specific discovery requests in the context of their motion for additional discovery under

Federal Rule of Civil Procedure 56(d).” Mar. 1, 2018 Order [ECR No. 310] at 2.

Plaintiffs then petitioned the D.C. Circuit for a writ of mandamus compelling the Court to

stay summary judgment briefing, lift the discovery stay, and address the constitutionality of § 613a,

see Navy Chaplain Pls.’ Pet. for a Writ of Mandamus, In re Navy Chaplaincy, No. 18-5070 (D.C.

Cir. Mar. 14, 2018), but the D.C. Circuit denied the petition, see Order, In re Navy Chaplaincy,

No. 18-5070 (D.C. Cir. July 9, 2018). Plaintiffs thereafter filed a motion to submit additional Rule

56(d) declarations. See Pls.’ Mot. for Leave to File a Suppl. to Their Mot. to Lift the Stay and

Counsel’s Rule 56(d) Decls. (“Pls.’ Mot. to File Decls.”) [ECF No. 328].

A motions hearing was held on July 19, 2018. The pending discovery motions and crossmotions for summary judgment are now fully briefed and ripe for decision.

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LEGAL STANDARD

A party is entitled to summary judgment “if [it] shows that there is no genuine dispute as

to any material fact and [it] is entitled to judgment 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 the governing law,”

and “[a]n issue is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.’” Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “In determining whether a genuine

issue of material fact exists, the court must view all facts, and draw all reasonable inferences, in

the light most favorable to the party opposing the motion.” Lane v. District of Columbia, 887 F.3d

480, 487 (D.C. Cir. 2018). However, if the movant shows that “there is an absence of evidence to

support the nonmoving party’s case,” judgment should be entered in the movant’s favor. Durant

v. D.C. Gov’t, 875 F.3d 685, 696 (D.C. Cir. 2017) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,

325 (1986)), cert. denied sub nom. Durant v. District of Columbia, 138 S. Ct. 2608 (2018).

Under Federal Rule of Civil Procedure 56(d), “[i]f a nonmovant shows by affidavit or

declaration that, for specified reasons, it cannot present facts essential to justify its opposition” to

a summary judgment motion, “the court may: (1) defer considering the motion or deny it; (2) allow

time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate

order.” The purpose of this rule “is to prevent railroading the non-moving party through a

premature motion for summary judgment before [it] has had the opportunity to make full

discovery.” Kakeh v. United Planning Org., Inc., 537 F. Supp. 2d 65, 71 (D.D.C. 2008) (citation

omitted). Thus, although motions under Rule 56(d) “are routinely granted, . . . the rule is not

properly invoked to relieve counsel’s lack of diligence.” Id. (quoting Berkeley v. Home Ins. Co.,

68 F.3d 1409, 1414 (D.C. Cir. 1995)). To prevail on a Rule 56(d) motion, the party opposing

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summary judgment “must (1) ‘outline the particular facts [it] intends to discover and describe why

those facts are necessary to the litigation’; (2) ‘it must explain’ why the nonmoving party could

not produce those facts in opposition to the summary judgment motion; and (3) ‘it must show that

the information is . . . discoverable.’” Moore v. Carson, Civil Action No. 14-2109 (JDB), 2017

WL 1750248, at *5 (D.D.C. May 3, 2017) (quoting Convertino v. U.S. Dep’t of Justice, 684 F.3d

93, 99–100 (D.C. Cir. 2012)).

DISCUSSION

THE NAVY’S SELECTION BOARD POLICIES AND PROCEDURES

Plaintiffs’ central contention in this litigation is that, at various times throughout the 1990s

and early 2000s, several Navy policies governing the staffing and proceedings of chaplain

selection boards favored liturgical Christians (i.e., Roman Catholics and liturgical Protestants) at

the expense of non-liturgical Protestants. Chief among the challenged policies is an alleged

practice of placing at least one Catholic chaplain on every selection board convened before late

2002. See Pls.’ Claim 2 MSJ at 7–9; Compl. ¶¶ 57(e), (g), 88(g), 90. Plaintiffs also challenge

various other procedures governing selection board proceedings, most of which were in place

throughout the entire period relevant to this litigation. See Pls.’ Claim 3 MSJ at 1–2.

Plaintiffs contend that these policies violate the First Amendment’s Establishment Clause,

the Fifth Amendment’s Equal Protection Clause, and RFRA. They seek, among other things, a

declaration that the challenged policies were unlawful, that “all boards using [them]” were “void

ab initio,” and that the Navy must reconsider any adverse action taken against any plaintiff by one

of those boards. Compl. at 111. 10 Plaintiffs also seek an injunction directing the Navy to cease

In Dilley v. Alexander, the D.C. Circuit concluded that several plaintiffs who had been denied promotions

by unlawfully constituted military selection boards and later discharged from service were “entitled to be reinstated

to active duty and to be considered anew by two properly constituted promotion selection boards.” 603 F.2d 914, 916

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those challenged policies that are still in place, see id. at 112, to establish a “monitor[ing]” and

“reporting” system for “claims of denominational preference,” id. at 114, and to develop a “fitness

report for chaplains” that is based on “objective performance criteria,” id.

The Navy contends that plaintiffs lack Article III standing to assert these claims. 11 It also

contends that plaintiffs have failed to raise a genuine issue of material fact that the challenged

policies were facially discriminatory or adopted for a discriminatory purpose, as D.C. Circuit

precedent requires. The Navy therefore seeks summary judgment in its favor.

Article III Standing

At an “irreducible constitutional minimum,” Article III’s standing requirement has three

elements:

First . . . is injury-in-fact: A would-be plaintiff must have suffered “an invasion of

a legally protected interest” that is (i) “concrete and particularized” rather than

abstract or generalized, and (ii) “actual or imminent” rather than remote,

speculative, conjectural or hypothetical. Second is causation: The asserted injury

must be “fairly traceable to the challenged action of the defendant.” Third is

redressability: It must be “likely that a favorable decision by the court would redress

the plaintiff’s injury.”

In re Navy Chaplaincy, 534 F.3d 756, 759 (D.C. Cir. 2008) (quoting Lujan v. Defs. of Wildlife,

504 U.S. 555, 560–61 (1992)). On summary judgment, the plaintiff must establish each of these

elements with “specific facts” set out by affidavit or other admissible evidence. United States v.

$17,900 in U.S. Currency, 859 F.3d 1085, 1090 (D.C. Cir. 2017) (quoting Lujan, 504 U.S. at 561).

This showing is required “for each claim [the plaintiff] seeks to press and for each form of relief

(D.C. Cir. 1979), decision clarified, 627 F.2d 407 (D.C. Cir. 1980). The court declined to declare the boards “void

[a]b initio,” however, because such a declaration “would create an untenable situation for the Army with regard to

those officers who actually were promoted” by the selection boards in question. Dilley, 603 F.2d at 921.

The Navy presents the Article III standing issue later in its briefs, as something of an afterthought to its

merits discussion. See Navy’s Claim 2 Opp’n at 36–38; Navy’s Claim 3 Opp’n at 40–42. But the Court is not at

liberty to “‘assum[e]’ jurisdiction for the purpose of deciding the merits,” Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 94 (1998), so it will address standing first.

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that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (citation

omitted).

The Navy contends that plaintiffs lack Article III standing because they have failed to

demonstrate that the adverse personnel actions taken against them were the result of the policies

they challenge. On the contrary, the Navy argues, plaintiffs’ own complaint attributes those

actions “to causes entirely independent of the challenged procedures.” Navy’s Claim 3 Opp’n at

41 (pointing to allegations of “manipulation of the assignment process by senior chaplains,”

“manipulation of officer service records by unspecific persons,” “inaccurate or incomplete fitness

reports,” and “retaliation, personal animosity, or ‘blackballing’” (citations omitted)). Moreover,

the Navy claims, even if the plaintiffs’ allegations were sufficient to demonstrate causation,

plaintiffs have failed to cite any evidence substantiating those allegations. See id. 41. Thus,

plaintiffs have failed to carry their burden as to the causation element of standing.

Plaintiffs respond by pointing out—correctly—that “[t]he ‘injury in fact’ in an equal

protection case” alleging unlawful discrimination in a competitive process “is the denial of equal

treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the

benefit.” Pls.’ Claim 3 Reply (quoting Gratz v. Bollinger, 539 U.S. 244, 262 (2003) (citing Ne.

Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville (“Associated Gen.

Contractors”), 508 U.S. 656, 666 (1993)); see Worth v. Jackson, 451 F.3d 854, 859 (D.C. Cir.

2006) (applying this rule in the employment context). 12 Thus, a plaintiff asserting such a claim

“need only demonstrate that [he or she] is able and ready” to compete “and that a discriminatory

Plaintiffs also cite the D.C. Circuit’s 2006 decision in Chaplaincy of Full Gospel Churches for the

proposition that the “unconstitutional preference is in itself a constitutional injury.” Pls.’ Claim 2 Opp’n at 40. But

that case held only that “a party alleging a violation of the Establishment Clause per se satisfies the irreparable injury

requirement of the preliminary injunction calculus,” Chaplaincy of Full Gospel Churches, 454 F.3d at 304 (emphasis

added), and it expressly stated that its conclusion “presupposes, of course, that the party has standing to allege such a

violation,” see id. at 304 n.8. It therefore does not establish that plaintiffs have an injury-in-fact for standing here.

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policy prevents [him or her] from doing so on an equal basis.” Gratz, 539 U.S. at 262 (quoting

Associated Gen. Contractors, 508 U.S. at 666). When a plaintiff alleges such an injury, moreover,

“[i]t follows from [the Supreme Court’s] definition of ‘injury in fact’ that [the plaintiff] has

sufficiently alleged” that the policy “is the ‘cause’ of its injury and that a judicial decree directing

the [government] to discontinue [the policy] would ‘redress’ the injury.” Associated Gen.

Contractors, 508 U.S. at 666 n.5. 13

Properly framed, therefore, the question here is not whether other factors aside from the

allegedly discriminatory policies contributed to plaintiffs’ non-promotions or selections for early

retirement, see Scahill v. District of Columbia, 271 F. Supp. 3d 216, 228 (D.D.C. 2017) (explaining

that “[a] defendant need not be the ‘but-for cause’ of a plaintiff’s injuries” to establish standing),

but rather whether a discriminatory Navy policy prevented plaintiffs from competing in those

processes “on an equal basis,” Gratz, 539 U.S. at 262 (citation omitted); accord Monterey Mech.

Co. v. Wilson, 125 F.3d 702, 707 (9th Cir. 1997) (explaining that the plaintiff in this type of equal

protection case “need not establish that the discriminatory policy caused it to lose” the benefit

sought). Moreover, because courts “must be careful not to decide the questions on the merits”

when evaluating standing, the Court “must assume arguendo that the Navy’s operation of its

[selection boards] favors Catholic chaplains and disfavors non-liturgical Protestant chaplains.” In

re Navy Chaplaincy, 534 F.3d at 760 (citation and internal quotation marks omitted). Thus,

plaintiffs also need not prove that the policies they challenge were discriminatory to establish

standing; rather, all they must show is that each plaintiff received an adverse recommendation

from a selection board that employed (or was convened pursuant to) the challenged policies.

At a minimum, this is true of plaintiffs’ equal protection claims. Because plaintiffs’ Establishment Clause

claims allege the same injury—that plaintiffs were discriminated against based on their religion—the Court concludes

that the same theory of Article III standing governs those claims.

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When so clarified, Article III’s standing requirement is easily satisfied in this case. The

Navy does not dispute that each individual plaintiff received an adverse recommendation from a

promotion or selective early retirement board convened when at least some of the challenged

policies were in place. See, e.g., Compl. add. A ¶ 1 (alleging that one plaintiff, Robert H. Adair,

was “selected for early retirement in FY 95”—a fiscal year in which all of the challenged policies

were allegedly in place—“by a Selective Early Retirement Board . . . that selected only Nonliturgical chaplains while allowing Liturgical chaplains with inferior records to continue on active

duty”). This is sufficient to permit the Court to conclude that plaintiffs have standing. See Fed.

R. Civ. P. 56(e) (“If a party fails . . . to properly address another party’s assertion of fact . . . , the

court may . . . consider the fact undisputed for purposes of the motion.”). Indeed, the Court is

mindful that this case has been before three district judges and at least five panels of the D.C.

Circuit—each of which had an independent obligation to determine its own subject-matter

jurisdiction, see Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)—and that none found standing

to be lacking. The Court explicitly confirms the implicit conclusions of these prior courts that

plaintiffs have standing and turns now to the merits of plaintiffs’ claims. 14

Legal Standards

The D.C. Circuit set out the legal standards that govern plaintiffs’ Establishment Clause

and equal protection claims in a prior decision in this very litigation. See In re Navy Chaplaincy,

738 F.3d at 428–31 (concluding that plaintiffs’ challenges to several of the same selection-board

The Court also rejects the Navy’s argument that two plaintiffs lack standing because they have since

received the promotions that they were initially denied. See Navy’s Claim 3 Reply at 22. Because the injury at issue

is not plaintiffs’ failure to be promoted, but rather the alleged unequal treatment by the prior selection boards, see

Gratz, 539 U.S. at 262, the fact that these two plaintiffs were later promoted does not obviate the relevant injury for

standing purposes. Indeed, as the D.C. Circuit has recognized, the remedy for a servicemember who was improperly

not selected for promotion is generally retroactive, and hence these plaintiffs—were they to prevail on the merits—

could be eligible for “back pay, allowances and other benefits of constructive service.” Dilley, 627 F.2d at 408.

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procedures at issue here did not warrant preliminary injunctive relief because they were unlikely

to succeed on the merits). The Court reviews those standards only briefly here.

To evaluate plaintiffs’ equal protection claim, the Court must first determine whether the

challenged selection-board policy “on its face prefers any religious denomination.” Id. at 428. If

it does, then strict scrutiny applies; if it does not, then for strict scrutiny to apply plaintiffs must

show either that the policy was “adopted with discriminatory intent” or that it led to a “pattern of

disparate outcomes from which unconstitutional discriminatory intent could be inferred.” Id. at

429. To imply discriminatory intent on its own, a pattern of disparate outcomes must be “stark,”

id. (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)),

which means that it must be on par with the patterns at issue in two illustrative Supreme Court

cases: one in which the boundaries of a city were altered so as to remove nearly all of its 400

African American voters but not a single white voter, and another in which a city refused to waive

a building ordinance for over 200 Chinese applicants but waived the requirement for all nonChinese applicants except one. See id. at 428–30 (first citing Gomillion v. Lightfoot, 364 U.S.

339, 341 (1960); then citing Yick Wo v. Hopkins, 118 U.S. 356, 359 (1886)). Unless strict scrutiny

applies for one of these three reasons, plaintiffs must demonstrate that “the polic[y] lack[s] a

rational basis.” Id. at 430. Otherwise, their equal protection claim fails.

The Establishment Clause inquiry proceeds along similar lines. The first question is

“whether the law facially differentiates among religions.” Id.; accord Trump v. Hawaii, 138 S. Ct.

2392, 2417 (2018) (“[T]he clearest command of the Establishment Clause is that one religious

denomination cannot be officially preferred over another.” (citing Larson v. Valente, 456 U.S. 228,

246 (1982))). If it does, then strict scrutiny applies; if it does not, then the court “proceed[s] to

apply the customary three-pronged Establishment Clause inquiry derived from Lemon v.

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Kurtzman, 403 U.S. 602 (1971).” In re Navy Chaplaincy, 738 F.3d at 430 (citation omitted).

Under that test, a law or policy is valid only if it “(1) ha[s] a secular legislative purpose; (2) ha[s]

a principal or primary effect that neither advances nor inhibits religion; and (3) [does] not result in

excessive entanglement with religion or religious institutions.” Id. (citations omitted).

A law or policy has an unconstitutional purpose if “the government acted with the purpose

of advancing or inhibiting religion.” Agostini v. Felton, 521 U.S. 203, 222–23 (1997). It has an

unconstitutional effect if it “appear[s] to endorse religion in the eyes of a ‘reasonable observer,’

who ‘must be deemed aware of the history and context underlying a challenged program.’” In re

Navy Chaplaincy, 738 F.3d at 430 (emphasis omitted) (quoting Zelman v. Simmons–Harris, 536

U.S. 639, 655 (2002)). 15 As in the equal protection context, to satisfy the “effects” test with

statistical evidence alone, plaintiffs must show a stark pattern of disparate outcomes. See id. at

431 (concluding that “plaintiffs’ statistics fail to show government endorsement of particular

religions under the reasonable observer test for the same reason that, in the equal protection

context, they failed to show intentional discrimination paralleling that of Gomillion or Yick Wo”);

see also Harkness v. Sec. of Navy, 858 F.3d 437, 447–451 (6th Cir. 2017) (applying the same

standards to nearly identical Establishment Clause claims on summary judgment), cert. denied sub

nom. Harkness v. Spencer, No. 17-955, 2018 WL 3013822 (U.S. June 18, 2018).

The D.C. Circuit did not have the occasion to articulate the legal standards applicable under the third prong

of the Lemon test—entanglement—when this case was last before it. See In re Navy Chaplaincy, 738 F.3d at 430

(noting that plaintiffs did not press an entanglement claim). But according to the Navy, see Navy’s Claim 2 Opp’n at

44–45, the Court need not consider plaintiffs’ entanglement claims because the Supreme Court has “recast” the

entanglement inquiry as “simply one criterion relevant to determining a statute’s effect.” Mitchell v. Helms, 530 U.S.

793, 808 (2000) (citing Agostini, 521 U.S. at 232–33). Although some language from Agostini and later decisions

suggests that Agostini’s gloss on the Lemon test applies only to claims involving government monetary aid, see, e.g.,

Mitchell, 530 U.S. at 807 (noting that “in Agostini we modified Lemon for purposes of evaluating aid to schools”);

Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2041 n.1 (2017) (stating that “[g]overnment

aid that has the ‘purpose’ or ‘effect of advancing or inhibiting religion’ violates the Establishment Clause” (emphasis

added) (citing Agostini, 521 U.S. at 222–223, 234)), this case is similar to Agostini in that the entanglement alleged—

discrimination in favor of certain denominations—manifests as an effect on plaintiffs’ careers. Thus, as in Agostini,

“it is simplest” to “treat [entanglement] . . . as an aspect of the inquiry into a statute’s effect.” 521 U.S. at 233.

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The Navy’s Alleged “One Roman Catholic” Policy

Plaintiffs first seek summary judgment on their constitutional challenge to the Navy’s

alleged policy of placing at least one Roman Catholic chaplain on each chaplain selection board

convened between 1948 and late 2002. See Pls.’ Claim 2 MSJ at 7. Plaintiffs challenge this policy

only under the Establishment Clause, not the Equal Protection Clause, see id. at 5–7; as noted

above, however, the analysis laid out by the D.C. Circuit is essentially the same under either

provision. 16 According to plaintiffs, that policy was facially discriminatory under Larson, see Pls.’

Claim 2 MSJ at 18–29, and also fails at each step of the Lemon test, see id. at 29–34. The Navy

cross-moves for summary judgment, arguing that plaintiffs have not demonstrated either that the

policy existed, see Navy’s Claim 2 Opp’n at 16–21, or that it was adopted with discriminatory

intent, see id. at 21–35. For the reasons given below, plaintiffs’ motion will be denied, and the

Navy’s will be granted.

The Navy’s Board-Staffing Policies Were Facially Neutral.

The parties do not dispute that until late 2002, the Navy staffed chaplain selection boards

with one or two (or at most three) non-chaplain officers and filled the remaining seats with

chaplains. See Decl. of Killian Kagle (“Kagle Decl.”) [ECF No. 47-9] at 35–46 (listing the

denominational affiliation and faith group category of every member of every promotion selection

board convened between 1988 and 2002 and every selective early retirement board convened

between 1991 and 2002); SECNAVINST 1401.3, Encl. 1 ¶ 1(c)(1) (providing that “[a]t least one

member shall be a [non-chaplain] officer” and that “[t]he remaining members should be

Plaintiffs also contend that the policy violates the Constitution’s No Religious Test Clause. See U.S.

Const., art. VI, cl. 3 (“[N]o religious test shall ever be required as a qualification to any office or public trust under

the United States.”). The Navy argues that this claim fails because plaintiffs “never contend that a Chaplain must be

a Roman Catholic to sit on a selection board.” See Navy’s Claim 2 Opp’n at 39. Because plaintiffs allege that they

were discriminated against because of their religion—not that a particular “religious test” was “required as a

qualification” to the chaplaincy—the Court agrees that their claim is better analyzed under the Establishment Clause.

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[chaplains]”). The record is also clear that every promotion board convened between 1988 and

2002 had between four and seven chaplains and that, with one exception, at least one of those

chaplains was Catholic. 17 See Kagle Decl. at 35–46. Plaintiffs contend that this fact alone

demonstrates that the Navy had a “policy” of placing at least one Catholic chaplain on every board,

and that this policy triggers strict scrutiny because it was facially discriminatory.

The Navy’s evidence tells a different story. According to the Navy, during the relevant

time period, chaplain selection boards were staffed with chaplains from a “mix” of faith group

categories—including Catholics—as part of a larger effort to ensure selection-board diversity. See

Rock Decl. ¶ 5–8 (testimony of former Navy personnel officer that selection boards “represented,

to the extent possible, the different experiences of the many chaplains within the Chaplain Corps,”

including “east-coast chaplains, west-coast chaplains, Navy chaplains, Marine Corps chaplains,

Coast Guard chaplains, and chaplains from each faith-group category”). Thus, of the 202 chaplains

staffed on the forty-two chaplain promotion boards convened between 1988 and 2002, sixty-six

were liturgical Protestants, sixty-nine were non-liturgical Protestants, forty-eight were Catholic,

eighteen fell in the Special Worship faith group category, and one was unknown. See Kagle Decl.

at 35–44. Similarly, of the twenty-seven chaplains staffed on the twelve selective early retirement

boards convened between 1991 and 1998, ten were liturgical Protestants, ten were non-liturgical

Plaintiffs also allege that, beginning in 1977, the Navy had a policy of placing two Roman Catholic

chaplains on every selection board. See Compl. ¶ 8 & n.8. According to plaintiffs, that practice ended in 1986, when

plaintiffs’ counsel secured a preliminary injunction against the practice from a district court in the Southern District

of California, see Prelim. Inj., Wilkins v. Lehman, Civil Action No. 85-3031 (S.D. Cal. Feb. 10, 1986), ECF No. 1353, and the Navy later settled with the plaintiff in that case, see Compl. ¶ 88(e). This alleged policy is not at issue here,

however, because it falls outside the limitations period established by the Court’s 2016 ruling on the Navy’s motion

to dismiss. See In re Navy Chaplaincy, 69 F. Supp. 3d at 256.

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Protestants, four were Catholic, and two were Special Worship. Id. at 45–46. Among the four

faith groups, then, the Navy’s policies hardly resulted in outsized representation for Catholics. 18

The Navy also points to its own regulations, which represent the only written evidence of

its board-staffing policies during the relevant time period. Far from directing selection boards (or

those responsible for convening them) to discriminate against non-liturgical Protestants, those

regulations expressly prohibited discrimination on the basis of religion. See SECNAVINST

1401.3 ¶ 4(a) (“Exclusion from board membership by reason of gender, race, ethnic origin, or

religious affiliation is prohibited.”); SECNAVINST 1401.3, Encl. 1 ¶ (1)(c)(1)(e) (stating that

members of chaplain selection boards “shall be nominated without regard to religious affiliation”).

Moreover, a federal statute requires selection board members to swear an oath to act “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. These sources all suggest that the Navy’s board-staffing policies

were nondiscriminatory—at least on their face. See Harkness, 858 F.3d at 447 (concluding that

other procedures employed by the Navy’s selection boards were not facially discriminatory under

Larson, in part because of the Navy’s facially neutral regulations).

Plaintiffs offer nothing to rebut this evidence. Instead, they quibble with the applicable

legal standard, arguing that the presence of one Catholic on each board triggers strict scrutiny

because it “suggest[s] ‘a denominational preference.’” Pls.’ Claim 2 MSJ at 17 (emphasis added)

(quoting County of Allegheny v. ACLU, 492 U.S. 573, 609 (1989) (quoting Larson, 456 U.S. at

246), abrogated on other grounds by Town of Greece v. Galloway, 134 S. Ct. 1811 (2014)). But

In response, plaintiffs argue that the Navy’s policies “singled out one denomination for an advantage which

it gave to no other”: “a reserved seat on every selection board.” Pls.’ Claim 2 MSJ at 26 (emphasis added). Thus,

while the selection boards may have been balanced among faith groups, they were not balanced among denominations.

See id. at 19–20 (chart purporting to show that, between 1977 and 2002, twice as many selection board members were

Roman Catholic as compared to any other denomination). But plaintiffs do not explain why this is the relevant point

of comparison for purposes of their Establishment Clause claim—which, after all, alleges discrimination against nonliturgical Protestants as a whole, not against any particular non-liturgical Protestant denomination.

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this precise argument was rejected by the Sixth Circuit in Harkness, which concluded—relying in

part on the D.C. Circuit’s 2013 decision in this case—that “strict scrutiny applies only when the

law facially prefers one religion over another.” 858 F.3d at 447 (collecting cases and concluding

that this approach was “more consistent with both Supreme Court and [Sixth Circuit] precedent”).

And in any case, this Court is not free to depart from the legal standards previously articulated by

the D.C. Circuit in this litigation. “Larson teaches that, when it is claimed that a denominational

preference exists, the initial inquiry is whether the law facially differentiates among religions.” In

re Navy Chaplaincy, 738 F.3d at 430 (emphasis added) (citing Hernandez v. Comm’r, 490 U.S.

680, 695 (1989)). At most, the presence of one Catholic on each selection board suggests that the

Navy’s facially neutral board-staffing policies may have resulted in disproportionate

representation among denominations.

But it does not show the existence of a facially

discriminatory policy and so does not trigger strict scrutiny under Larson. 19

Plaintiffs Have Not Demonstrated that the Navy’s Facially Neutral

Board-Staffing Policies Were Adopted for a Discriminatory Purpose.

Similarly, plaintiffs have failed to raise a genuine issue of material fact that the Navy’s

facially neutral board-staffing policies were adopted for a discriminatory purpose. Although the

record reveals a policy of staffing selection boards with a “mix” of chaplains from different faith

group categories, see Rock Decl. ¶¶ 5–8, plaintiffs have pointed to nothing in the record to suggest

Plaintiffs’ reliance on stray language from County of Allegheny appears to derive from a decision by this

Court in 2002, which quoted that same language and then stated that “if the plaintiffs can demonstrate after discovery

that some or all of the Navy’s policies and practices suggest a denominational preference,” strict scrutiny would apply.

Adair v. England, 217 F. Supp. 2d 7, 14 (D.D.C. 2002). But as the Court clarified over a decade later—after noting

that plaintiffs had “misread[]” its prior statement—it meant that “although policies that explicitly discriminate on the

basis of religion are subject to strict scrutiny, such scrutiny should not be applied to policies that do not explicitly

discriminate on the basis of religion unless ‘[P]laintiff[s] can demonstrate after discovery that some or all of the Navy’s

policies and practices suggest a denominational preference[.]’” In re Navy Chaplaincy, 928 F. Supp. 2d at 35 (citation

omitted).

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that this policy was intended to benefit any denomination at the expense of another. 20 On the

contrary, the Navy’s evidence suggests that the policy was intended to “maximize” a selection

board’s ability to consider candidates from diverse backgrounds, as well as to “dispel any potential

appearance of bias or impropriety.” Id. ¶ 6. Plaintiffs offer no direct evidence to contravene the

asserted secular objectives of the Navy’s board-staffing policies.

Instead, plaintiffs argue (in essence) that the sheer improbability that at least one Catholic

would appear on nearly every chaplain selection board during a 54-year period demonstrates that

the Navy’s placement of Catholics on the boards was intentional. See, e.g., Pls.’ Claim 2 MSJ at

7–9. But the relevant question for Lemon’s purpose prong is not whether the challenged policy

was intentional or unintentional; rather, the question here is whether its purpose was specifically

to prefer one religion over another. See Larson, 456 U.S. at 254 (invalidating a Minnesota statute

whose legislative history “demonstrated[] that [it] was drafted with the explicit intention of

including particular religious denominations and excluding others,” including, for example,

evidence that legislators “delet[ed] . . . clause[s] . . . for the sole purpose of exempting the [Roman

Catholic] Archdiocese from the . . . Act”); Wallace v. Jaffree, 472 U.S. 38, 60 (1985) (invalidating

an Alabama school prayer statute where “[t]he legislature enacted [the law] . . . for the sole purpose

of expressing the State’s endorsement of prayer activities”). Because plaintiffs have offered no

direct evidence of any such purpose here, their Establishment Clause claim fails at the purpose

prong of the Lemon test.

Nor have plaintiffs persuasively addressed the Navy’s asserted secular purpose of the faith group categories

themselves. As the Navy explains, “Chaplains in each category were deemed generally capable of meeting the

religious needs of personnel encompassed by those categories.” Navy’s Claim 2 Opp’n at 24; see id. at 24–25

(explaining that whereas a non-liturgical Protestant chaplain could perform religious services for any service member

in that faith group category, the Navy had determined that “Roman Catholic personnel have distinct needs, some of

which can be met only by Roman Catholic Chaplains” (citing Rock Decl. ¶ 14)).

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Plaintiffs Have Not Demonstrated that the Navy’s Facially Neutral

Board-Staffing Policies Had a Sufficient Discriminatory Impact.

Plaintiffs fare no better at Lemon’s effects prong. Here, plaintiffs argue that the Navy’s

board-staffing policies “gave [Catholic] chaplains a reserved seat for every promotion board which

resulted in higher promotion rates for [Catholics] than other denominations.” Pls.’ Claim 2 MSJ

at 34; see Compl. ¶ 57(e) (alleging that the Navy’s board-staffing policies “led to a high[er]

selection rate for Catholics not based on performance or other legitimate selection criteria”). For

this proposition, plaintiffs rely chiefly on a third-party study showing at most a 14.5% differential

in the promotion rates of Catholic chaplains as compared to non-liturgical Protestant chaplains.

See Ex. 17 to Pls.’ Claim 2 MSJ (“Faith Group Promotions”) [ECF No. 276-19]. Plaintiffs also

rely on the expert declaration of Dr. Harald Leuba, a statistician, who concludes that the differential

in promotion rates is statistically significant. See Apr. 6, 2017 Decl. of Harald Leuba [ECF No.

276-46] at 17; Harkness, 858 F.3d at 449 (explaining that a finding of statistical significance

“means only that the disparity in promotion decisions was not ‘due to chance’” (citing In re Navy

Chaplaincy, 738 F.3d at 431)).

But as the D.C. Circuit explained earlier in this litigation, to make out a disparate-impact

claim using statistics, a plaintiff must demonstrate a “stark” disparity in outcomes between the

classes at issue. In re Navy Chaplaincy, 738 F.3d at 429, 431. The D.C. Circuit previously

concluded that plaintiffs were unlikely to succeed on the merits of their disparate-impact claim

because their evidence of “a 10% advantage in promotion rates” did not “remotely approach the

stark character” necessary to make this showing. Id. at 429. The same is true here. Plaintiffs point

to a differential in promotion rates between Catholic and non-liturgical Protestant chaplains that

varies, based on the rank in question, between 2.5% (a 79.5% promotion rate for non-liturgical

Protestant chaplains at the lieutenant commander rank versus an 82% promotion rate for Catholics)

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and 14.5% (a 69.2% promotion rate for non-liturgical Protestants at the commander rank versus

an 83.7% promotion rate for Catholics). See Pls.’ Claim 2 MSJ at 20–21 (citing a study conducted

by the Center for Naval Analysis (“CNA”) in 1998); see also Faith Group Promotions. If a 10%

disparity does not “remotely approach” the showing necessary to prevail on a disparate-impact

claim, then surely a 14.5% disparity is likewise insufficient. Cf. Gomillion, 364 U.S. at 341; Yick

Wo, 118 U.S. at 359. Moreover, even if it were sufficient, plaintiffs have offered no evidence that

the alleged one-Roman-Catholic policy caused the disparity. See In re Navy Chaplaincy, 738 F.3d

at 429 (observing that statistically significant disparities in chaplain promotion rates are potentially

influenced by multiple causes).

Hence, plaintiffs have failed to establish that strict scrutiny applies under a disparateimpact theory (or any other theory). And because plaintiffs have likewise failed to establish that

the Navy’s board-staffing policies lack a rational basis, they have failed to make out their

constitutional challenge to the Navy’s alleged policy of placing one Catholic chaplain on every

chaplain selection board. The Navy is therefore entitled to summary judgment as to that claim.

Selection-Board Procedures

Next, plaintiffs challenge a set of procedures used by the selection boards themselves,

arguing that those procedures unconstitutionally disadvantage non-liturgical Protestant chaplains.

See Pls.’ Claim 3 MSJ at 1–2. Specifically, plaintiffs challenge the following: (1) the boards’ use

of secret ballots; (2) the Chief of Chaplains’ role as president of the selection boards and

involvement in choosing each board’s members; (3) the practice whereby a single board member

first reviews a candidate’s file and only then briefs the full board on the candidate; (4) the practice

of allowing board members to discuss a candidate’s file before voting; and (5) a prior practice

whereby each candidate’s denomination was disclosed to the selection board. See id.

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The D.C. Circuit previously rejected plaintiffs’ motion for a preliminary injunction against

the first and second of these practices: secret voting and the Chief of Chaplains’ role in convening

the selection boards. 21 See In re Navy Chaplaincy, 738 F.3d at 427. The court concluded that: (1)

the policies were facially neutral, see id. at 428–29 (explaining that “even if one of the chaplains

always serves as board president (as the chaplains allege), the board president . . . must be a person

chosen for the board without regard to religious affiliation” and that “the practice of secret voting

is neutral on its face”); (2) “the chaplains have presented no evidence of discriminatory intent in

the policies’ enactment,” id. at 429; and (3) plaintiffs’ statistical evidence was insufficiently

“stark” to raise an inference of discriminatory intent, see id. (rejecting evidence of “a 10%

advantage in promotion rates for officers of the same denomination as the Chief of Chaplains”).

Plaintiffs’ statistics were further undermined by the fact that they had “made no attempt to control

for potential confounding factors, such as promotion ratings, education, or time in service.” Id.

Little has changed since the D.C. Circuit’s decision in 2013. As plaintiffs’ counsel

conceded at the motions hearing, neither the two policies at issue then nor the three additional

policies challenged now—briefing, discussion, and the now-discontinued practice of disclosing

chaplain denominations—facially discriminates against any specific denomination, and plaintiffs

point to no evidence that they were adopted for a discriminatory purpose. Moreover, save for a

new report from Dr. Leuba and two largely inapposite studies, see Pls.’ Claim 3 MSJ at 28–33,

plaintiffs present no new statistical evidence concerning the challenged policies—and certainly no

evidence demonstrating a “stark” disparity in promotion rates on par with Gomillion or Yick Wo.

According to the Navy, although “[t]he D.C. Circuit’s opinion did not explicitly address the briefing of

officers’ records,” that practice was “challenged as part and parcel of Plaintiffs’ argument,” so “the constitutionality

of that procedure . . . was squarely before the court.” Navy’s Claim 3 Opp’n at 12 n.4.

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Plaintiffs contend that Dr. Leuba’s new report accounts, at least, for the “confounding

factors” identified by the D.C. Circuit in its review of his prior analysis. See Pls.’ Claim 3 MSJ at

28–31. But Dr. Leuba’s new report—entitled “Promotions in the U.S. Navy Chaplain Corps Are

Not Now, Nor Have They Ever Been, Merit Based, Nor Have They Ever Been Denominationally

Neutral[,] Let me Explain Why”—fails to meaningfully respond to the D.C. Circuit’s concern that

the statistical disparities identified by plaintiffs could have resulted from other factors. See, e.g.,

Feb. 22, 2018 Decl. of Harald Leuba [ECF No. 313-40] ¶ 75 (concluding that “there is no basis

for observing or testing the value or benefit of an additional amount of education”); id. ¶ 94

(acknowledging that Dr. Leuba had not controlled for promotion ratings). Nor are the two new

studies cited by plaintiffs of any more than tangential relevance, since neither purports to examine

the chaplaincy during the time period at issue in this litigation. See Pls.’ Claim 3 MSJ at 31–32

(discussing a study analyzing Methodists in the chaplaincy between 1975 and 1987 and a 1992

PhD dissertation analyzing the relationship between faith group categories and promotion rates).

And in any case, none of this new evidence even attempts to argue that plaintiffs’ statistical

evidence demonstrates a sufficiently stark disparity to support their constitutional claims.

Instead of attempting to show a disparity of the required magnitude, plaintiffs urge this

Court to disregard the D.C. Circuit’s prior decision in this litigation and to apply instead the

standards articulated in Palmer v. Shultz, 815 F.2d 84 (D.C. Cir. 1987), a Title VII case involving

a disparity in selection rates between male and female job applicants, see id. at 87, 91–92

(suggesting that a “5% probability of randomness” in disparate outcomes would raise an inference

of intentional discrimination under Title VII). But the D.C. Circuit has previously rejected

plaintiffs’ attempts to rely on Title VII cases involving “statistically significant” disparities,

doubting not only that plaintiffs’ “statistical evidence properly controlled for confounding

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variables,” but also that “a court could properly impute a belief in denominational favoritism to

the reasonable observer simply on the basis of statistics that might satisfy a plaintiff’s Title VII

burden.” In re Navy Chaplaincy, 738 F.3d at 431. Thus, even if the 14.5% promotion rate disparity

identified by plaintiffs were statistically significant, that fact alone would be insufficient to support

plaintiffs’ constitutional claims.

See id. (“[W]hen reasonable observers find that the term

[‘statistically significant’] means only that there is little likelihood that the ‘discrepancy’ is due to

chance, they are most unlikely to believe that the policies convey a message of government

endorsement.”); see also Burgis v. New York City Dep’t of Sanitation, 798 F.3d 63, 69 (2d Cir.

2015) (“[T]o show discriminatory intent in a[n] . . . Equal Protection case based on statistics alone,

the statistics must not only be statistically significant in the mathematical sense, but they must also

be of a level that makes other plausible non-discriminatory explanations very unlikely.”).

Plaintiffs’ specific argument that they have brought a “religious disparate impact” claim—

one that requires no proof of discriminatory intent—is similarly misguided. See Pls.’ Claim 3

Reply at 18–20. Plaintiffs are correct that under Title VII, a plaintiff may make out a prima facie

case of discrimination by presenting “statistical evidence . . . that ‘observed, nonrandom

disparities’ in hiring, firing, or other significant employment decisions ‘were caused by a “facially

neutral” selection criterion.’” Davis v. District of Columbia, 246 F. Supp. 3d 367, 393 (D.D.C.

2017) (quoting Palmer, 815 F.2d at 114). They are also correct that under this so-called “disparate

impact” theory of discrimination, “[p]roof of discriminatory motive . . . is not required.” Id. at 392

(quoting Anderson v. Zubieta, 180 F.3d 329, 338 (D.C. Cir. 1999)). But the Supreme Court has

repeatedly made clear that this theory of discrimination is not available under the Equal Protection

Clause, see City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003)

(“‘[P]roof of racially discriminatory intent or purpose is required’ to show a violation of the Equal

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Protection Clause.” (quoting Arlington Heights, 429 U.S. at 265)); Washington v. Davis, 426 U.S.

229, 247 (1976) (“Disproportionate impact is not irrelevant, but it is not the sole touchstone of an

invidious . . . discrimination forbidden by the Constitution.”), and plaintiffs offer no reason to

reach a different conclusion as to the Establishment Clause. Their attempt to repackage their

constitutional claims under a “disparate impact” theory is therefore unavailing.

In sum, plaintiffs’ challenges to the selection-board policies at issue here fail for essentially

the same reason that plaintiffs previously failed to secure a preliminary injunction against those

policies: plaintiffs have 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. See In re Navy

Chaplaincy, 738 F.3d at 428–31. Under the standards previously articulated by the D.C. Circuit,

therefore, the Navy is entitled to summary judgment on these claims.

Perhaps recognizing this to be the case, plaintiffs attempt to reframe their claims in various

ways. For example, they argue that the Chief of Chaplain’s role in choosing selection board

members impermissibly “delegate[s] . . . discretionary civic authority to the Chief and other

denominational representatives.” Pls.’ Claim 3 MSJ at 39; see id. at 37–42 (first citing Larkin v.

Grendel’s Den, Inc., 459 U.S.116 (1982); and then citing Board of Education v. Grumet, 512 U.S.

687 (1994)). But this Court and the D.C. Circuit have repeatedly rejected this argument. See In

re Navy Chaplaincy, 697 F.3d at 1179 (explaining that unlike in Larkin, where “a Massachusetts

statute grant[ed] religious institutions an effective veto power over applications for liquor licenses”

without requiring any “reasons, findings, or reasoned conclusions,” here “Congress and the

Secretary of the Navy have articulated secular, neutral standards to guide selection board members

in evaluating candidates for promotion”); Adair, 417 F. Supp. 2d at 6 (rejecting plaintiffs’

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“assumption” that “the usual rule for a chaplain sitting on a promotion board will be to discriminate

against promotion candidates on the basis of religious denomination” (citation omitted)); Adair,

183 F. Supp. 2d at 61–62 (distinguishing Larkin on the ground that chaplains on selection boards

act “first and foremost [as] Naval officers . . . evaluating a fellow officer’s fitness for promotion,”

not “private clergy” exercising unchecked discretion); see also Harkness, 858 F.3d at 449–50

(rejecting the same argument on summary judgment). Plaintiffs provide no reason to reach a

different conclusion this time around.

Similarly unpersuasive is plaintiffs’ argument that the challenged procedures

impermissibly “vest[] . . . unbridled discretion in a government official.” See Pls.’ Claim 3 MSJ

at 21–26 (quoting Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 132–33 (1992)). Even

assuming that this theory applies in the Establishment Clause context—Forsyth County, on which

plaintiffs chiefly rely, was a free-speech case—plaintiffs have simply not raised a genuine factual

issue that the procedures vest anyone with the type of unchecked power at issue in plaintiffs’ cited

authorities. See Forsyth County, 505 U.S. at 133 (striking down an ordinance that “left [it] to the

whim of” a county official to set the fee amount for a public assembly permit, where the official

was “not required to rely on any objective factors” or to “provide any explanation” for his

“unreviewable” decision). Plaintiffs have not explained how an individual member of a sevenmember selection board could exercise such authority, and they do not dispute that the decisions

of the selection boards themselves are subject to multiple layers of administrative and judicial

review. See 10 U.S.C. § 628(g). Hence, plaintiffs’ alternative legal theories also fail, and the

Navy is entitled to summary judgment on plaintiffs’ challenges to its selection-board procedures.

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II.

PLAINTIFFS’ CONSTITUTIONAL CHALLENGE TO 10 U.S.C. § 613a

Plaintiffs also challenge the constitutionality of 10 U.S.C. § 613a’s ban on the disclosure

of selection board proceedings. See Pls.’ Claim 1 MSJ at 1. That provision states 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,” 10 U.S.C. § 613a(a), and specifically provides

that the “discussions and deliberations” of such a board “are immune from legal process,” “may

not be admitted as evidence,” and “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,” id. § 613a(b). Plaintiffs allege that § 613a is unconstitutional as applied to them,

because it deprives them of evidence needed to prevail on their constitutional challenges to the

various selection-board procedures described above. See Pls.’ Claim 1 MSJ at 2.

But plaintiffs have already unsuccessfully challenged § 613a—as well as its statutory

predecessor, § 618(f)—several times. They brought their first challenge after the D.C. Circuit held

in 2004 that § 618(f) prohibited the disclosure of selection-board proceedings in litigation. See In

re England, 375 F.3d at 1181. In 2006, this Court rejected plaintiffs’ argument that § 618(f) “bars

judicial review of constitutional claims arising out of promotion-board proceedings,” explaining

that the statute “merely restricts the evidence available to the plaintiffs in support of their claims.”

Adair, 451 F. Supp. 2d at 215–17. And in any case, because plaintiffs “challenge the Navy’s

policies, not simply the alleged impermissible intentions and actions of individual board

members,” id. at 219, the evidence barred by § 618(f) was not strictly necessary to proving their

claims, see id. at 218 (noting that § 618(f) “does not preclude testimony . . . concerning directives,

orders, or policies (written or unwritten) communicated to board members that may have been

intended to infuse a denominational preference into the promotion selection process”). Finally,

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the Court concluded that even if § 618(f) did bar plaintiffs from accessing information necessary

to proving their claims, plaintiffs had failed to establish the existence of “a constitutional right of

access to evidence essential to establishing constitutional claims, even when that evidence is

privileged by statute.” Id. at 220. Thus, given “the absence of any precedent recognizing a right

to statutorily privileged information in a civil case involving constitutional claims, the thinness of

the plaintiffs’ legal theory, and the broad deference constitutionally afforded Congress to regulate

the Navy,” the Court in Adair rejected plaintiffs’ challenge to § 618(f). Id. at 222.

Plaintiffs again challenged the constitutionality of the statutory privilege for selectionboard proceedings after Congress repealed § 618(f) and enacted § 613a.

See In re Navy

Chaplaincy, 512 F. Supp. 2d 58, 61 (D.D.C. 2007) (reversing the Court’s earlier ruling that

plaintiffs could discover selective early retirement board proceedings under § 618(f) and rejecting

plaintiffs’ argument that “to deny them discovery of [those] proceedings would effectively deny

them judicial review of their causes of action by denying them the evidence necessary to vindicate

them”). The Court reiterated its earlier conclusion that “‘information may be withheld [pursuant

to a statutory privilege], even if relevant to the lawsuit and essential to the establishment of

plaintiff’s claim,’ whether statutory or constitutional.” Id. (quoting Baldrige v. Shapiro, 455 U.S.

345, 351, 360 (1982)). It then warned: “Whatever wisdom may be associated with the adage ‘the

third time’s the charm,’ the plaintiffs are advised to accept this second ruling as conclusive and

refrain from testing their luck a third time before this court.” Id. at 62. 22

Judge Urbina addressed the constitutionality of § 613a again in 2012, when he denied without prejudice

the Navy’s 2008 motion to dismiss the affirmative constitutional challenge to the statute that plaintiffs had raised in

Gibson. See In re Navy Chaplaincy, 850 F. Supp. 2d at 115. Without citing his 2007 opinion in Adair (which had

approved the application of § 613a to selective early retirement board proceedings), Judge Urbina noted that while

“[a]t first blush, the court’s prior reasoning concerning the constitutionality of § 618(f) would appear to also apply in

determining the constitutionality of § 613a,” further briefing on the differences between the two statutes might

persuade him otherwise. Id. Plaintiffs do not address any such differences here, however.

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Plaintiffs have not heeded that admonition, offering no new authority to buttress their third

attempt to assert a constitutional right to evidence in support of their constitutional claims. Rather,

they argue chiefly that the reasoning underlying Judge Urbina’s 2006 and 2007 decisions was

undercut in 2013, when this Court—and, later, the D.C. Circuit—held that discriminatory intent

was a necessary element of their constitutional claims. See Pls.’ Claim 1 MSJ at 2, 12–15 (arguing

that “the current law of the case requires Plaintiffs [to] demonstrate intent to discriminate on the

part of the chaplain board members”); see also In re Navy Chaplaincy, 738 F.3d at 428–31, aff’g

928 F. Supp. 2d 26 (D.D.C. 2013).

But the reasoning of those prior decisions remains valid here. For one thing, the law

concerning the role of intent in equal protection and Establishment Clause challenge was

established by Supreme Court precedent well before the early 2000s, so plaintiffs’ suggestion that

the 2013 decisions of this Court and the D.C. Circuit somehow upset the prevailing legal

framework underlying Judge Urbina’s earlier decisions is simply unfounded. See, e.g., In re Navy

Chaplaincy, 738 F.3d at 429–30 (citing, among other authorities, Larson, Lemon, and Arlington

Heights—all Supreme Court cases from the 1970s and 1980s). And even if those decisions had

altered the applicable legal framework, that fact still would not undermine the reasons that Judge

Urbina actually gave for his decision: that the proceedings of individual selection boards are of

limited relevance to plaintiffs’ constitutional claims, see Adair, 451 F. Supp. 2d at 217–19, and

that in any case plaintiffs have “advanced no coherent theory supporting” an unqualified right of

access to information needed to prove such claims, see id. at 220. Because plaintiffs have still not

meaningfully addressed these points—which Judge Urbina first articulated over a decade ago—

the Navy is entitled to summary judgment on plaintiffs’ challenge to the constitutionality of §

613a.

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III.

PLAINTIFFS’ REQUESTS FOR ADDITIONAL DISCOVERY

Finally, plaintiffs have filed several motions for additional discovery. These include

plaintiffs’ March 2017 motion to lift the discovery stay, see Pls.’ Discovery Mot., their September

2017 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., and their July 2018 motion seeking leave

to file additional declarations, see Pls.’ Mot. to File Decls. For the reasons that follow, plaintiffs’

discovery motions will be denied.

Plaintiffs’ March and September 2017 Rule 56(d) Motions

The March 2017 motion to lift the discovery stay seeks discovery of various materials in

support of the challenges to the Navy’s selection-board policies. 23 In support of the challenge to

the Navy’s alleged one-Roman-Catholic policy, plaintiffs seek the following documents: (1)

unredacted copies of two reports prepared by the inspectors general of the Department of Defense

and the Navy concerning allegations of religious discrimination by chaplain selection boards in

1997 and 1998 (the “IG reports”), see Pls.’ Discovery Mot. at 25–27; (2) documents related to the

Navy’s alleged decision to stop staffing chaplain selection boards with two Roman Catholic

chaplains beginning in 1986 and its decision to staff selection boards with two chaplains and five

non-chaplain officers beginning in 2003, see id. at 27–28; (3) documents mentioning the phrase

“denominational balancing,” id. at 28–29; (4) communications between the Chief of Chaplains

and his staff regarding the chief’s nominations to chaplain selection boards, see id. at 29–30; and

(5) data from various sources regarding the denominational composition of selection boards

Because briefing on the parties’ cross-motions for summary judgment is now complete, the Court will treat

plaintiffs’ motion to lift the discovery stay as a motion for additional discovery under Rule 56(d). See Mar. 1, 2018

Order at 2 (“[I]nstead of reopening discovery on the eve of scheduled summary judgment briefing, the Court will

consider plaintiffs’ specific discovery requests in the context of their motion for additional discovery under Federal

Rule of Civil Procedure 56(d) and in light of the summary judgment briefing on their claims.”).

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throughout the 1970s, 1980s, and 1990s, see id. at 30–31. 24 In support of their challenge to the

procedures employed by the selection boards themselves, plaintiffs seek (among other things) the

results of promotion board proceedings from 2005 to 2016 (including “identification of those

seeking promotion as well as those selected”), “Alpha rosters” from 2013 to 2017, and “[c]opies

of complaints about [chaplain] board misconduct and all investigations of [such] misconduct from

1993 to the present.” Pls.’ Discovery Mot. at 34–36. 25

Plaintiffs’ primary argument in support of their discovery requests is that the Court never

formally established a cutoff for discovery. See id. at 11–15. The Navy responds that the parties

agreed to a nine-month discovery period in 2002 (although this period was admittedly stayed

several times and was never formally closed), and that since then plaintiffs have had ample time

to obtain the discovery they need.

See Navy’s Discovery Opp’n at 1–2; Fed. R. Civ. P.

26(b)(2)(C)(ii) (providing that a court “must” limit discovery where “the party seeking discovery

has had ample opportunity to obtain the information by discovery in the action”); Moore, 2017

WL 1750248, at *5 (a party seeking to stay summary judgment pending discovery of additional

facts “‘ . . . must explain’ why [it] could not produce those facts in opposition to the summary

judgment motion” (quoting Convertino, 684 F.3d at 99–100)). Moreover, the Navy argues, most

of the discovery that plaintiffs now seek is either irrelevant, privileged, or duplicative, and hence

cannot support reopening discovery now.

As a brief review of the history of discovery in this litigation demonstrates, the Navy is

correct that plaintiffs have had ample time to conduct discovery. Discovery in CFGC and Adair

began in 2002, after the Court resolved the parties’ first round of dispositive motions. See Aug.

Plaintiffs also seek certain admissions, depositions of certain witnesses interviewed in the investigations

by the inspectors general, and permission to examine certain Chaplain Corps records. Pls.’ Discovery Mot. at 31–33.

Plaintiffs also aver that the discovery sought in connection with the Navy’s board-staffing policies is

relevant to their challenge to the other selection-board policies. See Pls.’ Discovery Mot. at 32–33.

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27, 2002 Order, CFGC, ECF No. 119; Aug. 27, 2002 Order, Adair, ECF No. 72. At the Court’s

direction, the parties submitted a joint discovery plan that outlined a nine-month discovery period,

which would begin in November 2002 and conclude in August 2003. See Status Report at 2,

CFGC, ECF No. 121. 26 Despite this agreed-upon discovery cutoff—which apparently was never

enforced—discovery continued during the dispute over plaintiffs’ motion to compel deposition

testimony of selection board members and their subsequent constitutional challenge to 10 U.S.C.

§ 618(f). See Status Report at 2–3, CFGC, ECF No. 182 (noting that by February 2005, both

parties had deposed several additional witnesses); Status Report, CFGC, ECF No. 178 (noting that

between November 2002 and January 2004, plaintiffs had served their first round of document

requests and deposed six witnesses). The Court stayed discovery “informally” in July 2009, and

in mid-2012 Judge Kessler continued the stay based on the Navy’s representation that it intended

to file a dispositive motion. See Pls.’ Discovery Mot. at 5. In January 2018, this Court again

continued the discovery stay, advising the parties that it would consider plaintiffs’ requests for

additional discovery once the parties’ summary judgment motions were fully briefed. See Jan. 11,

2018 Order.

In short, discovery in this case—which the parties initially agreed would take only nine

months—was open for a period of several years between 2002 and 2009. Plaintiffs are correct that

discovery was “conducted on and off” during this period, Pls.’ Reply Mem. of P. & A. in Supp. of

Pls.’ Mot. to Lift the Discovery Stay [ECF No. 268] at 6, and that significant other proceedings

took place during that time. They are also correct that they were never formally put on notice that

the 2009 discovery stay would later become permanent. See In re Navy Chaplaincy, 287 F.R.D.

100, 102 (D.D.C. 2012) (“Parties must remember that discovery has been stayed only, and no cut-

Although this document is not accessible on CFGC’s electronic docket, the Navy has provided it here. See

Ex. A to Navy’s Discovery Opp’n.

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off date for its completion has been set. If and when discovery is reopened, Plaintiffs will have

their full opportunity to proceed . . . .”). But neither the flurry of collateral proceedings—most of

which, it bears mentioning, were initiated by plaintiffs—nor the lack of a formal warning that

discovery would not remain open indefinitely excuses plaintiffs’ failure to obtain earlier the

discovery that they now seek. Indeed, according to the Navy, plaintiffs were able to take—and

did in fact take—a substantial amount of discovery between 2002 and 2009. 27 Their failure to take

additional discovery then is ultimately their responsibility. See Kakeh, 537 F. Supp. 2d at 71 (Rule

56(d) “is not properly invoked to relieve counsel’s lack of diligence” (citation omitted)).

In their September 2017 Rule 56(d) motion, Pls.[’] Rule 56(d) Mot. at 2, plaintiffs advance

the additional argument that the D.C. Circuit’s 2013 ruling that their claims required proof of

“intent and specific harm”—as well as its more specific holding that their statistical evidence “had

not covered certain factors such as ‘education’ and ‘promotion factors’”—justify their failure to

seek certain evidence earlier on. In re Navy Chaplaincy, 738 F.3d at 428–31. This argument is

unpersuasive. As already noted, in holding that plaintiffs’ claims could be proven using a showing

of disparate impact, the D.C. Circuit relied on established Supreme Court case law from as early

as 1886. See In re Navy Chaplaincy, 738 F.3d at 428–31 (citing Arlington Heights, Gomillion,

and Yick Wo). Any reasonable counsel would have been aware that statistical evidence was at

As the Navy explains,

Plaintiffs have served—and received objections and responses to—twenty-five interrogatories, 136

requests for production of documents (to which the Navy responded by producing approximately

9,000 pages of documents), and ninety-one requests for admission. In addition, Plaintiffs have taken

seventeen depositions in CFGC and Adair, as well as several more depositions in the related matter

of Larsen v. United States Navy, including the depositions of three former Navy Chiefs of

Chaplains. Plaintiffs’ designated expert, Dr. Harald Leuba, has submitted at least fifteen reports

consisting of at least 1,300 pages of argument and analysis in this litigation between 2000 and 2011,

and the Navy’s expert has submitted nine expert reports or declarations in this or related actions.

See Navy’s Discovery Opp’n at 9–10.

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least one method of pursuing the equal protection and Establishment Clause claims here, and

counsel’s failure to thoroughly pursue this evidence when discovery was open more than a decade

ago does not provide a reason to reopen discovery now.

The Navy is also correct that many of the materials plaintiffs now seek either are

undiscoverable or appear to be of limited probative value. Moore, 2017 WL 1750248, at *5

(explaining that materials sought on a Rule 56(d) motion must be both “discoverable” and

“necessary to the litigation” (citation omitted)). For example, plaintiffs seek unredacted copies of

the IG reports, which contain information that is not subject to discovery pursuant to 10 U.S.C.

§ 613a—a statutory privilege that this Court has already upheld as applied here. Other materials—

including records of the membership and denominational composition of selection boards

convened before 1993, promotion board results from 2007 to 2016, and “Alpha rosters” from 2013

to 2017—are only tangentially relevant to plaintiffs’ claims because they pertain to boards

convened either before 1993 (the applicable statute-of-limitations cutoff, see In re Navy

Chaplaincy, 69 F. Supp. 3d at 256) or after 2006 (when the last of these three consolidated cases

was filed). Still other materials sought by plaintiffs are duplicative of discovery already obtained

and hence are likewise not necessary to the litigation. See, e.g., Navy’s Discovery Opp’n at 19

(noting that plaintiffs request copies of communications between the Chief of Chaplains and his

staff, but that plaintiffs have already deposed three former Chiefs of Chaplains).

In sum, plaintiffs have failed to demonstrate that they are entitled to additional discovery

under Rule 56(d). Although plaintiffs have “outline[d] the particular facts [they] intend[] to

discover,” they have failed to explain “why [they] could not produce those facts in opposition to

the [Navy’s] summary judgment motion” earlier in the litigation. Moore, 2017 WL 1750248, at

*5 (citation omitted). Moreover, plaintiffs have failed to show that many of those facts are

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“necessary to the litigation” or even discoverable. Id. (citation omitted). Plaintiffs’ March and

September 2017 motions to lift the discovery stay will therefore be denied, and no further

discovery will be permitted.

Plaintiffs’ July 2018 Motion for Leave to Submit Additional Evidence

Although it is framed as a supplement to their March 2017 discovery motion, plaintiffs’

July 2018 motion seeks leave to present additional declarations and other evidence in support of

their challenges to the Navy’s selection-board policies. See Pls.’ Mot. to File Decls. at 1. Plaintiffs

appear to claim that this previously uncited evidence provides grounds both to deny the Navy’s

summary judgment motions and to reopen discovery. See id. at 1–2. In fact, it does neither.

First, the motion cites a declaration by Commander David Gibson, a plaintiff, which

recounts his “unsolicited recollection of important events just prior to Plaintiffs[’] filing [of] their”

final summary judgment brief, which “[c]ounsel did not have time to address.” Id. at 2. Gibson

declares that he heard statements: (1) by one selection board member that his board had “ma[de]

room for a Roman Catholic [candidate] when [it] discovered no Catholic had been selected,” (2)

by another board member that he routinely used the practice of “zeroing out”—that is, a practice

whereby one selection board member rates a candidate so low that the candidate is virtually

guaranteed not to be selected—to “advance [his] agenda,” and (3) by a Navy captain that

promotion boards “make selections based on . . . denominational considerations.” Id. at 2.

The first and third statements have no apparent connection to any of the challenged

selection-board policies, so they are irrelevant. And although the second statement relates to the

policy of keeping selection-board votes secret—plaintiffs allege that “zeroing out” is feasible as a

tool for religious discrimination only because the alleged discriminator is not required to disclose

his or her “zero” vote to the entire board, see Pls.’ Claim 3 MSJ at 24 & n.4—nothing about the

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statement itself suggests that the speaker’s allegedly invidious “agenda” was one of religious

discrimination.

Nor do the assortment of additional declarations and testimony cited by

plaintiffs—most of which was filed in other cases—permit that inference.

See id. at 3–4

(discussing statements about “agendas” made by persons other than the speaker referred to in

Commander Gibson’s declaration). Commander Gibson’s declaration therefore does not provide

a reason to deny the Navy’s summary judgment motion or to reopen discovery here.

The remainder of the evidence cited in plaintiffs’ motion is equally unpersuasive. For

example, the motion asks the Court to consider evidence that purportedly shows a “culture” within

the Navy of discouraging servicemembers from reporting misconduct by their superiors—

evidence that includes, among other things, statements made to counsel during a medical

appointment with his personal doctor, an Army physician who never responded to counsel’s

request for a formal declaration. See id. at 4–6. The motion also asks the Court to consider the

fact that Rear Admiral Brent Scott, who will be the first member of a certain non-liturgical

Protestant denomination to assume the position of Chief of Chaplains, will also be the first Chief

of Chaplains not to be promoted to the two-star rank of Rear Admiral (upper half). Id. at 6–7.

This evidence is even further afield from the selection-board policies that plaintiffs challenge here.

In sum, plaintiffs’ July 2018 discovery motion relies on evidence whose relevance to this

case is tangential at best and that, for the most part, could have been presented much earlier in the

litigation. Therefore, the motion presents no reason to deny the Navy’s summary judgment motion

or to reopen discovery, and it will be denied.

CONCLUSION

For the foregoing reasons, plaintiffs’ motions for summary judgment as to Claims 1, 2, and

3 will be denied, and the Navy’s corresponding cross-motions for summary judgment will be

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granted. Plaintiffs’ March 2017, September 2017, and July 2018 discovery motions will also be

denied. A separate order has been issued on this date.

/s/

JOHN D. BATES

United States District Judge

Dated: August 30, 2018

A50

USCA Case #13-5071

Document #1472661

Filed: 12/27/2013

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 6, 2013

Decided December 27, 2013

No. 13-5071

IN RE: NAVY CHAPLAINCY,

CHAPLAINCY OF FULL GOSPEL CHURCHES, ET AL.,

APPELLANTS

UNITED STATES NAVY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:07-mc-00269)

Arthur A. Schulcz Sr., argued the cause and filed the

briefs for appellants.

Sushma Soni, Attorney, U.S. Department of Justice,

argued the cause for appellees. With her on the brief were

Stuart F. Delery, Assistant Attorney General, Ronald C.

Machen Jr., U.S. Attorney, and Marleigh D. Dover, Attorney.

Before: TATEL and KAVANAUGH, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

A51

Page 1 of 11

USCA Case #13-5071

Document #1472661

Filed: 12/27/2013

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, Senior Circuit Judge: Plaintiffs, whom we’ll

call simply the chaplains, are a group of current and former

officers in the Navy Chaplain Corps who identify themselves

as non-liturgical Christians, plus two chaplain-endorsing

agencies. They sued in district court, claiming (among other

things) that several of the Navy’s policies for promoting

chaplains prefer Catholics and liturgical Protestants at the

expense of various non-liturgical denominations. The basic

argument is that the policies amount to disparate treatment of

the non-liturgical chaplains, violating the equal protection

component of the Fifth Amendment and the Establishment

Clause of the First Amendment.

The case has already been before this court several times.

See In re Navy Chaplaincy, 697 F.3d 1171 (D.C. Cir. 2012);

In re Navy Chaplaincy, 534 F.3d 756 (D.C. Cir. 2008);

Chaplaincy of Full Gospel Churches v. England, 454 F.3d

290 (D.C. Cir. 2006). The judgment now on review is that of

the district court denying plaintiffs’ motion for a preliminary

injunction against the Navy’s use of the challenged practices.

In re Navy Chaplaincy, 928 F. Supp. 2d 26 (D.D.C. 2013).

The district court reviewed the statistical evidence offered by

the plaintiffs to show inter-denominational discrimination, and

found it wanting. We affirm.

* * *

The Navy uses “selection boards” to choose officers for

promotion. See 10 U.S.C. § 611(a). By law, such boards

must have at least five members. 10 U.S.C. § 612(a)(1).

Except in certain circumstances not at issue here, at least one

member of a selection board for a competitive category—

A52

Page 2 of 11

USCA Case #13-5071

Document #1472661

Filed: 12/27/2013

here, the Chaplain Corps—must be from that competitive

category. 10 U.S.C. § 612(a)(2)(A). Selection boards for

chaplains before fiscal year 2003 consisted of five or more

members, at least one of whom was not a chaplain. Under a

change in Navy regulation, boards for fiscal year 2003 and

thereafter are composed of seven officers, two of whom are

chaplains “nominated without regard to religious affiliation.”

SECNAVINST 1401.3A, Encl. (1), ¶ 1.c.(1)(f). Either the

Chief of Chaplains or one of his two deputies serves as

selection board president.

According to a Defense

Department Inspector General report cited by plaintiffs,

“sleeves” hide the board members’ hands as they depress

buttons reflecting their votes, making them secret ballots.

According to the chaplains, the boards take an initial secret

vote and then the board president recommends two score cutoffs: candidates above the higher score are treated as clearly

deserving promotion, and ones below the lower score are

treated as deserving no further consideration. Candidates who

fall between the two are re-evaluated for the remaining

available promotions.

The chaplains asked the district court to enjoin three

current Navy selection board policies—(1) staffing the sevenmember selection boards with two chaplains, (2) enabling

members to keep their votes secret via the “sleeves,” and (3)

allowing the Chief of Chaplains or his deputy to serve as the

selection board president—that they claim result in disparate

treatment of the non-liturgical candidates. Plaintiffs’ (July 22,

2011) Motion for a Preliminary Injunction 1. The disparate

treatment, they say, is shown by various statistical data, which

we’ll consider shortly.

The chaplains’ theory is that a candidate is more likely to

be promoted if he or she shares a religious denomination with

one of the chaplains on the selection board, or with the Chief

of Chaplains. The bottom line is an advantage in promotion

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rates for Catholics and liturgical Protestants over nonliturgical Christians. The chaplains posit that the small board

size, combined with secret votes, enables each board’s

chaplains to ensure that a particular candidate will not be

promoted, thus increasing the odds for their preferred (and

discriminatory) results.

Pending resolution of their summary judgment motion,

the chaplains asked the district court for a preliminary

injunction halting the challenged policies. The district court

denied the request, but we vacated the denial and remanded

for the district court to clarify its reasoning on the chaplains’

likelihood of success on the merits; we were unsure whether

the district court viewed the insufficiency of the chaplains’

claims to be legal or factual. See In re Navy Chaplaincy, 697

F.3d at 1180. On remand, the district court concluded that the

chaplains were unlikely to succeed on the merits of either

claim because the statistics they offered failed to show any

discriminatory intent behind the challenged policies or the

resulting outcomes. In re Navy Chaplaincy, 928 F. Supp. 2d

at 36-37.

The chaplains appeal to us again, claiming that the court

erred in requiring a showing of intent to prove either an equal

protection or establishment clause violation. We find that the

chaplains’ equal protection attack on the Navy’s facially

neutral policy could prevail only if they showed a likelihood

of success in proving an intent to discriminate (which they

have not shown) or the lack of a rational basis for the policies

(which they have not claimed). As to the Establishment

Clause, the chaplains have not shown a likelihood of success

under any test that they have asked the court to apply. We

therefore affirm the district court’s denial of the preliminary

injunction.

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* * *

In order to determine whether to issue a preliminary

injunction, the district court applies four familiar criteria: (1)

likelihood of success on the merits; (2) irreparable injury; (3)

lack of substantial injury to other parties; and (4) furthering

the public interest. Chaplaincy of Full Gospel Churches, 454

F.3d at 297. We have already found an absence of any error

in the district court’s analysis of the last three factors, and

have made clear that the only unresolved issue is whether the

chaplains have shown a likelihood of success on the merits.

In re Navy Chaplaincy, 697 F.3d at 1179. The chaplains in

effect argue that the district court used improper legal

standards on that issue. But the record and the district court’s

findings allow us to resolve the question of likelihood of

success on the merits on our own, and we accordingly do so.

See Chaplaincy of Full Gospel Churches, 454 F.3d at 297

(legal conclusions upon which denial of preliminary

injunction relies are reviewable de novo).

Equal protection. The chaplains argue that the three

challenged policies result in disparate treatment of nonliturgical chaplains. But none of the challenged practices on

its face prefers any religious denomination. The regulation

behind the practice of staffing boards with two chaplains

explicitly requires denominational neutrality. “Chaplain

Corps board members shall be nominated without regard to

religious affiliation.” SECNAVINST 1401.3A Encl. (1),

¶ 1.c.(1)(f) (Dec. 20, 2005). Thus, even if one of the

chaplains always serves as board president (as the chaplains

allege), the board president, necessarily a board member, must

be a person chosen for the board without regard to religious

affiliation. Finally, the practice of secret voting is neutral on

its face. All three policies together, then, are facially neutral

with respect to denomination.

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The chaplains nonetheless claim that the policies either

were adopted with discriminatory intent or have been applied

in such a manner as to favor denominations other than the

non-liturgical ones. As the district court found, the chaplains

have presented no evidence of discriminatory intent in the

policies’ enactment. Nor have they shown a current pattern of

disparate

outcomes

from

which

unconstitutional

discriminatory intent could be inferred under the prevailing

understanding of equal protection. For such claims, “Absent a

pattern as stark as that in Gomillion or Yick Wo, impact alone

is not determinative.” Village of Arlington Heights v.

Metropolitan Housing Development Corp., 429 U.S. 252, 266

(1977) (citing Gomillion v. Lightfoot, 364 U.S. 339 (1960);

Yick Wo v. Hopkins, 118 U.S. 356 (1886)). The district court

found, at best, only a 10% advantage in promotion rates for

officers of the same denomination as the Chief of Chaplains

(the difference between a 73.3% promotion rate for candidates

of different denominations and an 83.3% rate for candidates

of the same denomination). In re Navy Chaplaincy, 928 F.

Supp. 2d at 37.

There is some internal contradiction in the chaplains’

position on these figures. Their brief states that they cover

promotions in the period 2003-2012, when the current

procedures were in place (Appellants’ Br. at 15), but it cites

Joint Appendix (“J.A.”) 1107, an affidavit that situates the

data in 1981-2000, before the proportion of chaplains on the

selection boards was decreased. Giving the chaplains the

benefit of the doubt, we assume the data apply to the later

period, the one governed by the rules they seek to enjoin. The

chaplains’ only efforts to show a larger disparity rely on data

for selections occurring before the 2003 changes.

The district court correctly noted that the disparity

between 73.3% and 83.3% does not remotely approach the

stark character of the disparities in Gomillion or Yick Wo. Id.

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For reinforcement, plaintiffs cite their expert’s opinion

that this disparity is statistically significant. The record does

not explain the reasoning behind the choice of one set of

statistical tests for significance over another (e.g., a “simple

binomial” test versus a standard test of the differences in

proportions), or demonstrate the actual calculations. See, e.g.,

Appellants’ Br. at 15. But assuming arguendo that the

methodology for determining statistical significance is

reasonable, the finding does little for our analysis.

“Correlation is not causation.” Tagatz v. Marquette Univ.,

861 F.2d 1040, 1044 (7th Cir. 1988). Statistical significance,

assuming it has been shown, indicates only a low probability

for one possible cause of the alleged disparities—random

chance. The chaplains have made no attempt to control for

potential confounding factors, such as promotion ratings,

education, or time in service. (That statement must be

qualified by recognition that time in service is broadly

reflected in occasional references to whether the candidates

were “in zone” (i.e., were within a group of a predetermined

number of the most senior officers who had not previously

been considered for promotion to a given grade) or “above

zone” (i.e., had previously been considered for promotion to a

given grade). See, e.g., J.A. 1468-70 (chaplains’ tables noting

comparisons of in zone candidates, and of in zone and above

zone candidates); J.A. 1289-92 (Navy employee affidavit

describing the zone compositions).)

Thus the label

“statistically significant” does nothing to elevate plaintiffs’

figures into the realm of Yick Wo or Gomillion.

Given facially neutral policies and no showing of intent

to discriminate, the chaplains’ equal protection attack on the

Navy’s specific policies could succeed only with an argument

that the policies lack a rational basis. See Washington v.

Davis, 426 U.S. 229, 242 (1976); United States v. Thompson,

27 F.3d 671, 678 (D.C. Cir. 1994). The chaplains attempt no

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such argument. So we agree with the district court that they

have not shown the requisite likelihood of success.

Establishment. The chaplains say that under Larson v.

Valente, 456 U.S. 228 (1982), we must subject the challenged

selection methods to strict scrutiny on the ground that they

“grant[] a denominational preference,” id. at 246, or, failing

that, find that they run afoul of Lemon v. Kurtzman, 403 U.S.

602 (1971), notably the element of Lemon now generally

described as the “endorsement” test.

The chaplains’ proposed analytical sequence matches the

structure laid down by the Supreme Court for measures

assailed as denominational preferences. “Larson teaches that,

when it is claimed that a denominational preference exists, the

initial inquiry is whether the law facially differentiates among

religions. If no such facial preference exists, we proceed to

apply the customary three-pronged Establishment Clause

inquiry derived from Lemon v. Kurtzman, 403 U.S. 602

(1971).” Hernandez v. Comm’r of Internal Revenue, 490 U.S.

680, 695 (1989). As the challenged policies are facially

neutral, Larson doesn’t trigger strict scrutiny, and we proceed

to Lemon.

Lemon presents us again with a multipart test: “In order to

pass constitutional muster under the Lemon test, laws and

government practices involving religion must: (1) have a

secular legislative purpose; (2) have a principal or primary

effect that neither advances nor inhibits religion; and (3) not

result in excessive entanglement with religion or religious

institutions.” Bonham v. D.C. Library Admin., 989 F.2d 1242,

1244 (D.C. Cir. 1993) (citing Lemon, 403 U.S. at 612-13).

The chaplains naturally do not challenge the chaplaincy

program as a whole; the Second Circuit has found it

compatible with the Establishment Clause, in an opinion that

does not precisely track Lemon. Katcoff v. Marsh, 755 F.2d

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223 (2d Cir. 1985). Nor do the chaplains claim that the first

or third element of Lemon cuts against the disputed selection

procedures.

Rather they claim that the challenged policies have the

“effect” of advancing particular denominations, which at least

in this context entails application of the “endorsement” test.

Bonham, 989 F.2d at 1245. That in turn takes us to the

question of whether the selection policies appear to endorse

religion in the eyes of a “reasonable observer,” who “‘must be

deemed aware’ of the ‘history and context’ underlying a

challenged program.” Zelman v. Simmons-Harris, 536 U.S.

639, 655 (2002) (quoting Good News Club v. Milford Central

School, 533 U.S. 98 (2001)). As the policies themselves are

facially neutral, the chaplains under this theory argue in effect

that a reasonable observer, contemplating the results of the

policies (as gathered in the chaplains’ statistical evidence),

would infer that the government had as a practical matter

endorsed the liturgical denominations.

Assuming arguendo that it is proper to see the

“reasonable observer” as a hypothetical person reviewing an

array of statistics (the observer is already a judicial construct

rather than a human being), the figures in this case would not

lead him to perceive endorsement. Here the plaintiffs’

statistics fail to show government endorsement of particular

religions under the reasonable observer test for the same

reason that, in the equal protection context, they failed to

show intentional discrimination paralleling that of Gomillion

or Yick Wo. The only new wrinkle, perhaps, is that we must

impute to the reasonable observer either enough grasp of

statistics not to be misled by the assertion of “statistical

significance,” or at least the modesty not to leap to a

conclusion about the data without making an elementary

inquiry on the subject. We feel confident that when

reasonable observers find that the term means only that there

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is little likelihood that the “discrepancy” is due to chance, they

are most unlikely to believe that the policies convey a

message of government endorsement.

Plaintiffs cite Title VII cases in which we found that

statistically significant “disparities” in such matters as hiring

and pay were enough to support district court findings of

racial discrimination. See, e.g., Berger v. Iron Workers

Reinforced Rodmen Local 201, 843 F.2d 1395 (D.C. Cir.

1988); Segar v. Smith, 738 F.2d 1249, 1277-79, 1286-87

(D.C. Cir. 1984). But in these cases the court found liability

only after being satisfied that the statistical evidence properly

controlled for confounding variables. See, e.g., Berger, 843

F.2d at 1413-21 (reviewing potential non-discriminatory

explanations); id. at 1419 (reasoning that the “entire notion of

employing statistical proof is to eliminate non-discriminatory

causes” of the disparities); Segar, 738 F.2d at 1274-77. Here,

as we observed in the equal protection analysis, the chaplains

point to no serious effort at such controls for any of their

statistical comparisons. Accordingly, even assuming that a

court could properly impute a belief in denominational

favoritism to the reasonable observer simply on the basis of

statistics that might satisfy a plaintiff’s Title VII burden, the

chaplains’ data fail to meet that standard and thus fail to show

a likelihood of success on the merits.

Finally, the chaplains point to our observation in Bonham

that there is no “de minimis exception to traditional

Establishment Clause analysis.” 989 F.2d at 1245. But the de

minimis defense that we rejected there was a notion that state

actions could be excused, even though a reasonable observer

would have regarded them as endorsing religion, so long as

the action in question had only a trivial impact, for example,

an action affecting “only a single day of the year.” It was,

obviously, not a suggestion that the “reasonable observer”

should be deemed to spot “endorsement” on a bare surmise.

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The district court’s order denying the chaplains’ motion

for preliminary injunction is therefore

Affirmed.

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Filed: 02/24/2014

Page 1 of 1

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 13-5071

September Term, 2013

1:07-mc-00269-GK

Filed On: February 24, 2014

In re: Navy Chaplaincy,

-----------------------------Chaplaincy of Full Gospel Churches, et al.,

Appellants

United States Navy, et al.,

Appellees

BEFORE:

Garland, Chief Judge; Henderson, Rogers, Tatel, Brown, Griffith,

Kavanaugh, Srinivasan, Millett, Pillard, and Wilkins, Circuit Judges;

and Williams, Senior Circuit Judge

ORDER

Upon consideration of appellant’s petition for rehearing en banc, and the

absence of a request by any member of the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

A62

/s/

Jennifer M. Clark

Deputy Clerk

Case 1:07-mc-00269-GK Document 162 Filed 02/28/13 Page 1 of 29

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

IN RE: NAVY CHAPLAINCY

Case No. 1:07-mc-269 (GK)

)

_____________________________ )

MEMORANDUM OPINION

Plaintiffs,

current

and

former

non-liturgical

Protestant

chaplains in the United States Navy ("Navy"), endorsing agencies

for

non-liturgical

non-denominational

Protestant

chaplains,

Christian

evangelical

and

fellowship. of

churches,

bring

this

action against Defendants, Department of the Navy and several of

its officials.

against

them on

decisions

Clause

Plaintiffs allege that Defendants discriminated

the

basis

religion when making

in violation of

the

First Amendment's

and

the

equal

protection

Amendment's

Due

Process

Clause,

and

Clause

delegating

decisions

chaplains

violated

the

Establishment

authority

over

personnel

component

that

personnel

Establishment

the

Fifth

Defendants

also

governmental

who

sat

chaplain selection boards.

This matter is before the Court on Plaintiffs' Motion for a

Preliminary Injunction [Dkt. No. 95] on remand from the Court of

Appeals. 1

Upon consideration of the Motion, Opposition [Dkt. No.

The District Court denied this Motion on January 30, 2012.

Plaintiffs appealed that judgment and the Court of Appeals

reversed and remanded for further proceedings. See infra Section

A63

Case 1:07-mc-00269-GK Document 162 Filed 02/28/13 Page 2 of 29

98],

[Dkt. No.

99],

and the entire record herein,

and for

the reasons set forth below, Plaintiffs' Motion is denied.

I .

BACKGROUND

Factual Background2

Congress provided for the organization of the Navy Chaplain

Corps,

"whose

possess

specialized education,

the

spiritual

families."

2002)

needs

Adair

commissioned

in the

quotation

marks

omitted).

the Chaplain Corps

into four

"faith groups" :

non-liturgical

Worship. In re Navy Chaplaincy,

697

31,

to meet

Protestant,

F. 3d 1171,

who

Navy and their

(internal

Protestant,

183

serve

liturgical

2012)

officers

training and experience

those who

England,

Naval

Supp.

are

(Adair

divides

members

The

Navy

Catholic,

and

1173

(D.D.C.

Special

(D.C.

Cir.

The term "liturgical Protestant" refers to "those Christian

Protest~nt

denominations whose services include a set liturgy or

order of worship." Adair I,

183 F.

the

Protestant"

term

"non-liturgical

I.B. (setting out

matter) .

in detail

Supp.

2d at 36.

refers

the procedural

In contrast,

"Christian

background of

this

For a more detailed account of the facts in this case, refer to

Chaplaincy of Full Gospel Churches v. England, 454 F. 3d 290,

293-96 (D.C. Cir. 2006) and Adair v. England, 183 F. Supp. 2d

31, 34-38 (D.D.C. 2002) (Adair I).

2 -

A64

Case 1:07-mc-00269-GK Document 162 Filed 02/28/13 Page 3 of 29

denominations or faith groups that do not have a formal liturgy

or order in their worship service."

Id.

Plaintiffs are current

and former non-liturgical

Protestants,

"represent [ing]

Southern

Baptist, Christian Church,

Pentecostal, and other non-liturgical

Christian faith groups." Id.

have

order

become

'ecclesiastical

endorsing

agency

chaplain,

endorsement'

certifying

professionally qualified

the

Navy

that

represent

"an

Churches

are

Full

two

Gospel

such

endorsing

faith

group

the

individual

that

Churches

must

from

Chaplain Corps." In re Navy Chaplaincy,

Chaplaincy

individual

and

agencies

faith

group

within

697

F. 3d at

1173.

Associated

and

are

Gospel

among

the

Plaintiffs in this case. Id.

The

Navy

officers,

1172

the

including

(D.C.

.careers

uses

Cir.

personnel

chaplains.

2004).

to provide

same

That

system

critical personnel

continuation

active

retirement."

Id.

Chaplains,

for

promotion

all

England,

375

F.3d

to manage

best

and

all

'selection

its

1169,

officers'

qualified personnel

decisions:

duty;

for

"seeks

the Navy with the

through three

recommended

system

(1)

(3)

Navy

promotion;

selective

early

officers,

boards'

(2)

convened

"are

consider whether particular candidates should be promoted to a

- 3 -

A65

Case 1:07-mc-00269-GK Document 162 Filed 02/28/13 Page 4 of 29

higher rank." In re Navy Chaplaincy,

697 F.3d at 1173. Chaplain

selection boards are

currently composed of

seven members:

chaplains

other

(citing

and

five

1401. 3A, Suppl.

officers.

Id.

two

SECNAVINST

1. c. (1) (f)) .

Plaintiffs allege that Defendants "discriminated against

[them]

the

basis

their

religion,

[]

establishing,

promoting and maintaining illegal religious quotas and religious

preferences

their

Chaplaincy,

841

personnel

Supp.

decision

making."

Navy

336,

(D.D.C.

2012).

341

specifically, Plaintiffs allege that "the Navy's selection board

process

results

Catholic

and

denominational

liturgical

favoritism

chaplains

while

that

advantages

disadvantaging

non-

liturgical chaplains" and that "this alleged systematic bias has

left non-liturgical chaplains underrepresented in the Navy." Id.

340.

Plaintiffs claim that,

" [c] haplain

promotion

depressing one of

five

under the selection board process,

board

members

buttons

in a

'vote

'sleeve'

the

record'

which hides

the

voter's hands, ensuring the secrecy of the vote" and that "[t]he

buttons coincide with degrees of confidence the voter has in the

record

considered,

increments."

Pls.'

ranging

Mot.

from

for

Prelim.

- 4 -

A66

100

Inj.

degree

(internal

Case 1:07-mc-00269-GK Document 162 Filed 02/28/13 Page 5 of 29

quotation marks omitted) . Plaintiffs allege that the secrecy of

the vote enables chaplain promotion board members to engage in

the practice of "zeroing out" candidates, a practice in which "a

single [board] member voting zero" ensures that a candidate will

not be selected "because of the small number of board members

who vote [.]" Id. No other branch of the military uses the same

or similar procedures in the management of the careers of its

religious leaders.

Plaintiffs claim that,

has

that

accountability,

every

under this promotion system,

their

[Navy

"[s] tatistical

Chaplain

Corps]

analysis

personnel

[]

which

shows

management

category that can be measured by data, the Navy has a preference

for

Catholics

first,

Liturgical

Protestants

second,

with non-

liturgical or Special Worship [faith group clusters] alternating

third and fourth." Id. at 4-5.

Plaintiffs

now move

for

preliminary

the Court to enjoin the Navy from " ( 1)

Chaplains

(the

board president;

accountability;

boards

without

'Chief')

(2)

and

his

Deputy

the use of

(3)

injunction,

asking

the use of the Chief of

chaplain

secret votes

selection

thereon with no

placing chaplains on chaplain selection

effective

guarantees

[that]

the

power

distribute government benefits will be used solely for secular,

5 -

A67

Case 1:07-mc-00269-GK Document 162 Filed 02/28/13 Page 6 of 29

neutral

and

non-ideological

purposes."

Id.

Plaintiffs

request that the preliminary injunction remain in force

"until

the

summary

Court

can

evaluate

their

merits

the

partial

judgment (PSJ) motions pending before this Court." 3 rd. at 2.

Procedural Background

This

dispute

involves

three

cases,

Gospel Churches v. England, Civ. No.

Chaplaincy

Full

99-2945, ·Adair v. England,

Civ. No. 00-566, and Gibson v. Dep't of Navy, Civ. No. 06-1696,

the

earliest

which

was

complaint of over 85 pages,

filed

1999,

and

each

with

containing multiple constitutional

claims. On June 18, 2007, the District Court concluded that the

three

cases

challenges

raised

"substantially

the

Chaplaincy

Navy

similar

program"

constitutional

and

accordingly

consolidated the cases under the caption In re Navy Chaplaincy.

Order (June 18, 2007) at 3-4 [Dkt. No. 1].

On July 22, 2011, Plaintiffs filed the present Motion for a

Preliminary Injunction - which is their sixth such motion for

injunctive relief. 4 On August 26,

2011,

Defendants filed their

As discussed below, these motions are no longer pending. The

Court did not reach the merits of the motions, but denied them

See infra

without prejudice for case management purposes.

Section I.B.3.

The District Court denied all five of Plaintiffs' previous

motions for preliminary injunctive or similar emergency relief.

- 6 -

A68

Case 1:07-mc-00269-GK Document 162 Filed 02/28/13 Page 7 of 29

Opposition

Plaintiffs'

Motion,

and on September

12,

2011,

Plaintiffs' filed their Reply in support of their Motion.

Plaintiffs'

January 30,

motion

2012.

was

denied

the

District

See In re Navy Chaplaincy,

841 F.

Court

Supp.

336. Plaintiffs appealed that judgment, and on November 2, 2012,

the

Court

Appeals

reversed

and

remanded

for

further

proceedings. 5 See In re NavY Chaplaincy, 697 F. 3d 1171.

1. District Court Proceedings

In denying Plaintiffs' motion, the District Court "began by

concluding

that

plaintiffs

lacked

Article

standing,

III

reasoning that their asserted future injury was too speculative

because it rested on the assumption that chaplains sitting on

future

selection

boards

would

affiliated with

[their]

the

implausible

court

found

'necessarily

own denomination,'

given

that

favor

candidates

an assumption that

Naval

officers

'are

presumed to undertake their official duties in good faith.'" In

Navy

Chaplaincy,

697

F.3d

1175

(quoting

Navy

Chaplaincy, 841 F. Supp. 2d at 345).

The District Court then concluded that "even if Plaintiffs

had Article III

standing,

the balance of the four preliminary

The Court of Appeals issued its Mandate on January 18,

[Dkt. No. 154].

- 7 -

A69

2013

Case 1:07-mc-00269-GK Document 162 Filed 02/28/13 Page 8 of 29

injunction factors 6 weighed against granting injunctive relief."

Navy

"[a]lthough

Chaplaincy,

the

697

[District]

F. 3d

[C] curt

1175.

specifically,

presumed

the

existence

irreparable harm because plaintiffs had alleged an Establishment

•

Clause violation,

the court found that plaintiffs were unlikely

to succeed on the merits,

and that the balance of the equities

and

weighed

the

public

interest

injunctive relief." Id.

against

granting

preliminary

(citations omitted)

2. Court of Appeals Proceedings

appeal,

the

Court

Appeals

reversed

the

District

Court's conclusion that Plaintiffs lacked Article III standing,

reasoning

policies

that

will

"[P]laintiffs'

likely

result

that

discrimination

Id.

challenged

sufficiently

then "review [ed]

the district court's ultimate decision to deny

injunction

standing."

the

non-speculative

injunctive relief,

support

allegation

1177.

The

Court

as well as its weighting of the preliminary

factors [.]"

Id.

1178.

The

Court

concluded

that

In order to obtain a preliminary injunction, a plaintiff "must

establish [1] that [she] is likely to succeed on the merits, [2]

that [she] is likely to suffer irreparable harm in the absence

of preliminary relief, [3] that the balance of the equities tips

in [her] favor, and [4] that an injunction is in the public

interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S.

7, 20 (2008); see infra Section II (setting out in detail the

legal standard for injunctive relief) .

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Case 1:07-mc-00269-GK Document 162 Filed 02/28/13 Page 9 of 29

"the

district

demonstrated

Court's

court

correctly

irreparable

conclusion

that

harm"

the

assumed

that

and

agreed

balance

plaintiffs

with

the

have

District

equities

and

public interest weighed against granting the injunction.

the

Id. at

1179 (stating that "in assessing the balance of the equities and

the

public

interest,

must

'give

professional

judgment

military

great

deference

authorities'

the

regarding

the

harm that would result to military interests if an injunction

were

granted")

(quoting Winter v.

Natural

Res.

Def.

Council,

Inc., 555 U.S. 7, 24 (2008)).

Noting that the remaining issue was likelihood of success

the

district

merits,

the

court's

Court

conclusion

Appeals

that

saw

"no

plaintiffs

error

are

the

unlikely

succeed on the merits" of their delegation theory. 7 Id. at 1179.

However,

the

Court

Appeals

noted

that

"[w] e

have

different view of the district court's resolution of plaintiffs'

denominational

preference

theory,

i.e.,

that

the

Navy

discriminates against non-liturgical Protestants on the basis of

their religious denomination." Id. at 1179-80. Plaintiffs claim

Under this theory, Plaintiffs claim that the Navy impermissibly

delegates governmental

authority to religious entities by

permitting

chaplains

make

promotion

decisions

without

effective guarantees that the authority will be exercised in a

secular manner.

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Case 1:07-mc-00269-GK Document 162 Filed 02/28/13 Page 10 of 29

that

"their statistical analysis provides strong evidence of a

pattern of

discrimination."

Plaintiffs'

statistical

evidence

analysis,

which

claim

they

Id.

1180.

and

Defendants

challenge

offer

their

own

expert

demonstrates

that

such

discrimination exists. Id.

The Court of Appeals observed that "the district court made

no factual findings to resolve these competing claims" and that

"[a] 11 it had to say about the issue was this:

have

submitted no

evidence

from which the

that

the

promotion

boards

future

will

'the plaintiffs

court

could assume

any

pattern of

alleged discrimination.'"

Id.

Chaplaincy,

841 F.

The Court then concluded

Supp.

2d at 346)).

(quoting

putative

Navy

that "[t]he district court's entirely conclusory statement gives

us no insight at all into whether the court perceived the defect

in the Establishment Clause claim to be legal or factual, or, if

factual, whether it thought the weakness lay in the evidence of

past

or future

Appeals

vacated

discrimination."

the

District

Id.

Accordingly,

Court's

denial

the

Court of

Plaintiffs'

Motion and remanded for further proceedings consistent with its

opinion.

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Case 1:07-mc-00269-GK Document 162 Filed 02/28/13 Page 11 of 29

3. Reassignment of the Case

On May 31, 2012, Judge Ricardo Urbina, who had handled this

dispute

since

2001,

retired

and

the

thereafter,

Calendar

Committee reassigned it to the undersigned Judge. Because of the

complexity of the procedural and constitutional issues raised,

which

the

decade,

parties

have

now

been

litigating

for

well

over

the Court held a lengthy Status Conference on July 24,

2012 to fully explore the most efficient procedure for resolving

it.

After hearing from the parties. at that Status Conference,

this Court dismissed without prejudice nine outstanding motions,

least

five

which

were

dispositive,

and

Management Order

(July 25,

2012) 8

setting numerous

deadlines

in order to move

[Dkt. No.

issued

Case

124, later amended]

the

case

towards

resolution.

4. Record Considered in Resolving Plaintiffs' Motion

opinion

November

2012,

Plaintiffs'

further proceedings.

the

Court

Motion,

reversing

On November 19,

2012,

Appeals

and

issued

its

remanding

for

this Court ordered

Under the Case Management Order, as amended, the parties will

have fully briefed their cross-motions for summary judgment on

statute of limitations grounds by May 20, 2013. After deciding

those motions, the Court will, if necessary, set a briefing

schedule for comprehensive dispositive motions on the merits of

the constitutional issues raised by Plaintiffs.

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Case 1:07-mc-00269-GK Document 162 Filed 02/28/13 Page 12 of 29

the parties to submit a joint statement identifying those briefs

and

exhibits

they

considered

(Nov.

2012)

19,

remand

filed

filings,

briefings

they

Statement

their

No.

and

12,

constituted

resolving

joint

agreed

(Dec.

[Dkt.

parties

which

believed

143].

Plaintiffs'

statement

exhibits

constituted

the

2012)

the

[Dkt. No.

December

record

Motion.

21,

identifying,

four

among

Order

2012,

dispositive

relevant

the

other

motions,

record.

Joint

152]. The Court considered

that robust record for purposes of resolving Plaintiffs' Motion.

II.

LEGAL STANDARD FOR INJUNCTIVE RELIEF

A preliminary injunction is an "extraordinary and drastic

remedy," Munaf v. Geren, 553 U.S. 674, 689 (2008), and "may only

be awarded upon a clear showing that the plaintiff is entitled

to such relief,"

Cir.

2011)

555 U.S.

(1997)

Sherley v.

Sebelius,

644 F.3d 388,

(internal quotation marks omitted)

at 22);

see Mazurek v.

Armstrong,

392

(D.C.

(quoting Winter,

520 U.S.

968,

972

(noting that "the movant, by a clear showing, carries the

burden of persuasion").

A party

seeking

[she]

preliminary

injunction

must

is likely to succeed on the merits,

establish

"[1]

that

[she]

is likely to suffer irreparable harm in the absence of

preliminary relief,

[2]

that

[3] that the balance of the equities tips in

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Case 1:07-mc-00269-GK Document 162 Filed 02/28/13 Page 13 of 29

[her]

favor,

and

[4]

that

injunction

the

public

interest." Winter, 555 U.S. at 20.

the

past,

evaluated on a

these

four

factors

'sliding scale [,] '"

"have

such that

typically

"[i] f

makes an unusually strong showing on one of the

[she]

1288, 1291-92

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